U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 402-602 [2022-27066]

Download as PDF 402 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 106, 204, 212, 214, 240, 244, 245, 245a, 264 and 274a [CIS No. 2687–21; DHS Docket No. USCIS 2021–0010] RIN 1615–AC68 U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements U.S. Citizenship and Immigration Services, DHS. ACTION: Proposed rule. AGENCY: The Department of Homeland Security (DHS) proposes to adjust certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive biennial fee review and determined that its costs have increased considerably since its previous fee adjustment due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees. USCIS cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations. DHS proposes to adjust USCIS fees, add new fees for certain benefit requests, establish distinct fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms. DHS is also proposing additional fee exemptions for certain humanitarian categories and changes to certain other immigration benefit request requirements. If DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners or be able to keep pace with incoming benefit request workload, and USCIS processing times and backlogs will not improve. DHS intends for this rulemaking to provide the funding required for USCIS to improve service levels. DATES: Written comments must be submitted on this proposed rule on or before March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day. Listening session date: DHS will hold virtual public listening sessions during which the public may speak directly to USCIS on the questions raised in this proposed rule. A session will be held on January 11, 2023 at 2:00 p.m. ET. Listening sessions registration date: For an opportunity to provide oral khammond on DSKJM1Z7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 comments during the virtual public listening sessions, you must register before the listening session in question. For registration instructions, see the Public Participation section below. ADDRESSES: You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS–2021–0010, through the Federal eRulemaking Portal: https:// www.regulations.gov. Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. Due to Coronavirus Disease (COVID–19), USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using https:// www.regulations.gov, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (202) 658–9621 for alternate instructions. FOR FURTHER INFORMATION CONTACT: Carol Cribbs, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240–721–3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 877–889– 5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Executive Summary A. Summary of Economic Impacts B. Summary of Proposed Provisions C. Summary of Current and Proposed Fees III. Basis for the Fee Review A. Legal Authority and Guidance B. Effect of FY 2022 Appropriations C. Immigration Examinations Fee Account D. Full Cost Recovery E. The Use of Premium Processing Funds Under the Emergency Stopgap USCIS Stabilization Act F. Fee Review History 1. Current State of USCIS Fee Schedule Regulations 2. Previous Fee Rules PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 3. Current Fees IV. Fee-Setting Approach—Reversal of 2020 Fee Rule V. FY 2022/2023 Immigration Examinations Fee Account Fee Review A. USCIS Projected Costs and Revenue 1. USCIS Budget History 2. FY 2022/2023 Cost Projections a. General Expenses b. Payroll c. Related Rulemakings d. Cost Summary 3. FY 2022/2023 Revenue Projections 4. Projected Cost and Revenue Differential B. Methodology 1. Volume a. Workload Volume and Volume Projection Committee b. Fee-Paying Volume 2. Completion Rates 3. Assessing Proposed Fees 4. Funding the Asylum Program With Employer Petition Fees C. Exclusion of Temporary or Uncertain Programs D. Consideration of DACA Rulemaking E. Fee-Related Issues for Consideration 1. Accommodating E-filing and Form Flexibility 2. Processing Time Outlook VI. Fee Waivers A. Background B. The 2020 Fee Rule Fee Waiver Changes C. Inability To Pay D. USCIS Director’s Discretionary Fee Waivers and Exemptions E. Requirements To Submit Fee Waiver Form F. Form and Policy Changes G. Request for Comments VII. Fee Exemptions A. Codification of Benefit Requests With No Fees and Exemptions of Certain Categories or Classifications From Fees B. Proposed Fee Exemptions 1. Victims of Severe Form of Trafficking (T Nonimmigrants) 2. Victims of Qualifying Criminal Activity (U Nonimmigrants) 3. VAWA Form I–360 Self-Petitioners Derivatives 4. Conditional Permanent Residents Filing a Waiver of the Joint Filing Requirement Based on Battery or Extreme Cruelty 5. Abused Spouses and Children Seeking Benefits Under CAA and HRIFA 6. Abused Spouses and Children Seeking Benefits Under NACARA 7. Abused Spouses and Children of LPRs or U.S. Citizens Under INA Sec. 240A(b)(2) 8. Special Immigrant Afghan or Iraqi Translators or Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S. Government, or Afghan Nationals Employed by or on Behalf of the U.S. Government or Employed by the International Security Assistance Force and Derivative Beneficiaries 9. Special Immigrant Juveniles 10. Temporary Protected Status 11. Asylees 12. Refugees 13. Person Who Served Honorably on Active Duty in the U.S. Armed Forces Filing Under INA Sec. 101(A)(27)(K) E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 14. Summary of Proposed Fee Exemptions C. Request for Comments VIII. Other Proposed Changes in the FY 2022/ 2023 Fee Schedule A. Clarifying Dishonored Fee Check RePresentment Requirement and Fee Payment Method B. Payment Method C. Non-Refundable Fees D. Eliminating $30 Returned Check Fee E. Changes to Biometric Services Fee 1. Incorporating Biometric Activities Into Immigration Benefit Request Fees 2. Retaining the Separate Biometric Services Fee for Temporary Protected Status 3. Executive Office for Immigration Review Biometric Services Fee F. Naturalization and Citizenship-Related Forms 1. Application for Naturalization (Form N– 400) Fee 2. Request for Reduced Fee (Form I–942) 3. Military Naturalization and Certificates of Citizenship 4. Application for Certificate of Citizenship (Form N–600) and Application for Citizenship and Issuance of Certificate Under Section 322 (Form N–600K) 5. Proposed Changes to Other Naturalization-Related Application Fees 6. Request for Comments G. Fees for Online Filing H. Form I–485, Application to Register Permanent Residence or Adjust Status 1. Interim Benefits 2. Form I–485 Fee for Child Under 14, Filing With Parent 3. INA Sec. 245(i) Statutory Sum I. Continuing To Hold Refugee Travel Document Fee for Asylees to the Department of State Passport Fee J. Form I–131A, Carrier Documentation K. Separating Fees for Form I–129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification 1. Form I–129, Petition for Nonimmigrant Worker: H–1 Classifications 2. Form I–129, Petitions for H–2A or H–2B Classifications 3. Form I–129, Petition for Nonimmigrant Worker: L Classification 4. Form I–129, Petition for Nonimmigrant Worker: O Classifications 5. Form I–129, Petition for Nonimmigrant Worker: E and TN Classifications 6. Form I–129, Petition for Nonimmigrant Worker: H–3, P, Q, or R Classifications 7. Separating Form I–129 Into Multiple Forms 8. Commonwealth of the Northern Mariana Islands Fees 9. H–1B Electronic Registration Fee L. Premium Processing—Business Days M. Permitting Combined Payment of the Premium Processing Fee N. Intercountry Adoptions 1. Adjustment to Proposed Fees for Certain Intercountry Adoption-Specific Forms 2. Clarification of Fee Exception for Birth Siblings 3. Suitability and Eligibility Approval Validity Period 4. Form I–600A/I–600, Supplement 3, Request for Action on Approved Form I– 600A/I–600 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 a. Suitability and Eligibility Extensions b. New Approval Notices c. Change of Country d. Duplicate Approval Notices e. Hague Adoption Convention Transition Cases 5. Form I–800A, Supplement 3, Request for Action on Approved Form I–800A O. Immigrant Investors 1. Immediate Effects of the EB–5 Reform and Integrity Act of 2022 2. Background of the EB–5 Program 3. Proposed EB–5 Program Fees P. Genealogy and Records 1. Genealogy Search and Records Requests 2. Request for a Certificate of NonExistence Q. Fees Shared by CBP and USCIS R. Form I–881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–100 (NACARA)) S. 9–11 Response and Biometric Entry-Exit Fee for H–1B and L–1 Nonimmigrant Workers (Pub. L. 114–113 Fees) T. Adjusting Fees for Inflation U. Miscellaneous Technical and Procedural Changes IX. Proposed Fee Adjustments to IEFA Immigration Benefits A. Impact of Fees B. USCIS Fiscal Health C. Planned Increases in Efficiency X. Statutory and Regulatory Requirements A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act) E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) H. Paperwork Reduction Act I. National Environmental Policy Act J. Family Assessment List of Acronyms and Abbreviations AAPA Afghan Allies Protection Act of 2009 ABC Activity-Based Costing ACWIA American Competitiveness and Workforce Improvement Act AFM Adjudicator’s Field Manual APEC U.S. Asia-Pacific Economic Cooperation ASC Application Support Center ASVVP Administrative Site Visit and Verification Program BLS Bureau of Labor Statistics CAA Cuban Adjustment Act CBP U.S. Customs and Border Protection CEQ Council on Environmental Quality CFO Chief Financial Officer CFO Act Chief Financial Officers Act of 1990 CNMI Commonwealth of the Northern Mariana Islands COVID Coronavirus Disease CPI Consumer Price Index PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 403 CPI–U Consumer Price Index for All Urban Consumers CPR Conditional Permanent Residents CRA Congressional Review Act DACA Deferred Action for Childhood Arrivals DCL Dedicated Commuter Lane DHS Department of Homeland Security DoD Department of Defense DOJ Department of Justice DOL Department of Labor DOS Department of State EAD Employment Authorization Document EB–5 Employment-Based Immigrant Visa, Fifth Preference EIN Employer Identification Number E.O. Executive Order EOIR Executive Office for Immigration Review FBI Federal Bureau of Investigation FDNS Fraud Detection and National Security Directorate FOIA Freedom of Information Act FPG Federal Poverty Guidelines FY Fiscal Year GAO U.S. Government Accountability Office GE General Expenses GPO Government Publishing Office HHS U.S. Department of Health and Human Services HRIFA Haitian Refugee Immigration Fairness Act IEFA Immigration Examinations Fee Account ILRC Immigrant Legal Resource Center v. Wolf INA Immigration and Nationality Act of 1952 INS Immigration and Naturalization Service IOAA Independent Offices Appropriations Act IPO Immigrant Investor Program Office IRFA Initial Regulatory Flexibility Analysis IRIS Immigration Records and Identity Services ISAF International Security Assistance Force LPR Lawful Permanent Resident NACARA Nicaraguan Adjustment and Central American Relief Act NAFTA North American Free Trade Agreement NAICS North American Industry Classification System NATO North Atlantic Treaty Organization NCE New Commercial Enterprise NEPA National Environmental Policy Act NPRM Notice of Proposed Rulemaking NRC National Records Center NWIRP Northwest Immigration Rights Project v. United States Citizenship and Immigration Services OAW Operation Allies Welcome OIG DHS Office of Inspector General OMB Office of Management and Budget OP Operating Plan OPQ Office of Performance and Quality OPT Optional Practical Training PRA Paperwork Reduction Act PRC Permanent Resident Card RAIO Refugee, Asylum, and International Operations Directorate RAP Resource Allocation Plan RFA Regulatory Flexibility Act RFE Request for Evidence E:\FR\FM\04JAP2.SGM 04JAP2 404 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 RIA Regulatory Impact Analysis SAM Staffing Allocation Model SAVE Systematic Alien Verification for Entitlements SBA Small Business Administration SBREFA Small Business Regulatory Enforcement Fairness Act of 1996 SCOPS Service Center Operations SEA Small Entity Analysis SEVP Student and Exchange Visitor Program SIJ Special Immigrant Juvenile SOFA Status of Forces Agreement STEM OPT Science, Technology, Engineering, and Mathematics Optional Practical Training TEA Targeted Employment Area TECRO Taipei Economic and Cultural Representative Office TPS Temporary Protected Status TVPRA William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 UMRA Unfunded Mandates Reform Act USCIS U.S. Citizenship and Immigration Services USMCA U.S. Mexico-Canada Agreement VAWA Violence Against Women Act VPC Volume Projection Committee I. Public Participation DHS invites you 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–2021–0010 for this rulemaking. Providing comments is entirely voluntary. Regardless of how you submit your comment, DHS will post all submissions, without change, to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you provide. Because the information you submit will be publicly available, you should consider limiting the amount of personal information in your 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 https:// www.regulations.gov. Registration for listening session: To register and receive information on how to attend the virtual public listening sessions, please go to: https:// www.uscis.gov/outreach/upcomingnational-engagements. Docket: For access to the docket, go to https://www.regulations.gov and enter VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 this rulemaking’s eDocket number: USCIS–2021–0010. The docket includes additional documents that support the analysis contained in this proposed rule to determine the specific fees that are proposed. These documents include: • Fiscal Year (FY) 2022/2023 Immigration Examinations Fee Account (IEFA) Fee Review Supporting Documentation (supporting documentation); • FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule documentation); • FY 2022/2023 IEFA Fee Review Model Documentation (model documentation); • FY 2022/2023 Fee Review Regulatory Impact Analysis (RIA); and • FY 2022/2023 Fee Review Small Entity Analysis (SEA). You may review these documents on the electronic docket. The software 1 used to compute the immigration benefit request 2 fees and biometric fees 3 is a commercial product licensed to USCIS that may be accessed on-site, by appointment, by calling 240–721– 6080.4 FAQ: To provide maximum transparency and clarity to the public on this proposed rule, DHS has provided a list of frequently asked questions and answers (FAQ) that summarize the content and context of this rule in an easily readable and understandable summary fashion. We have placed the FAQ in the eDocket USCIS–2021–0010, as well as on the USCIS website at https://www.uscis.gov/ proposed-fee-rule-faqs. II. Executive Summary DHS proposes to adjust the USCIS fee schedule, which specifies the fee amount charged for each immigration and naturalization benefit request.5 DHS 1 USCIS uses commercially available activitybased costing (ABC) software, CostPerform, to create financial models as described in the supporting documentation. 2 Benefit request means any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit, whether such request is filed on a paper form or submitted in an electronic format, provided such request is submitted in a manner prescribed by DHS for such purpose. See 8 CFR 1.2. 3 DHS uses the terms biometric fees, biometric services fees, and biometric fee synonymously in this rule to describe the cost and process for capturing, storing, or using biometrics. 4 This proposed rule describes key inputs to the ABC model (for example, budget, workload forecasts, staffing, and completion rates), both here and in the supporting documentation. 5 For the purposes of this rulemaking, DHS is including all requests funded from the IEFA in the term ‘‘benefit request’’ or ‘‘immigration benefit request’’ although the form or request may not technically relate to an immigration or naturalization benefit. For example, Deferred PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 last adjusted the fee schedule on December 23, 2016, by a weighted average increase of 21 percent. See 81 FR 73292 (Oct. 24, 2016) (final rule) (FY 2016/2017 fee rule). USCIS budget and revenue estimates at the time indicated there would be an average annual deficit of $560 million without adjusting fees. DHS issued a final rule to adjust the USCIS fee schedule on August 3, 2020, by a weighted average of 20 percent, reflecting the results of the FY 2019/ 2020 USCIS fee review. See 85 FR 46788 (2020 fee rule). DHS estimated an average annual USCIS deficit of $1,035.9 million. The rule was scheduled to become effective on October 2, 2020. However, that rule was preliminarily enjoined, and USCIS has not implemented the fees set out in the 2020 fee rule.6 In this rule, DHS proposes to replace the 2020 fee rule in its entirety by revising the regulatory changes codified by the enjoined 2020 fee rule. Certain changes in the 2020 fee rule are proposed to be retained by being republished. USCIS is primarily funded by fees charged to applicants and petitioners for immigration and naturalization benefit requests. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants or petitioners. The focus of this fee review is the fees that DHS has established and is authorized by INA section 286(m), 8 U.S.C 1356(m), to establish or change, collect, and deposit into the IEFA, which comprised approximately 96 percent of USCIS’ total FY 2021 enacted spending authority; this fee review does not focus on fees that USCIS is required to collect but cannot change. This rule also proposes to revise the genealogy program fees established under INA section 286(t), 8 U.S.C. 1356(t), and those funds are also deposited into the IEFA. Premium processing funds Action for Childhood Arrivals (DACA) is solely an exercise of prosecutorial discretion by DHS, is not an immigration benefit, and is called a ‘‘benefit request’’ solely for purposes of this rule. Likewise, a request for genealogy records is not a request for an immigration benefit. For historic receipts and completion information, see USCIS immigration and citizenship data available at https:// www.uscis.gov/tools/reports-studies/immigrationforms-data. 6 Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020) (ILRC); Nw. Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020) (NWIRP). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules established under INA section 286(u), 8 U.S.C. 1356(u) are also IEFA fees, but premium processing fees are not proposed to be changed in this rule. In accordance with the requirements and principles of the Chief Financial Officers Act of 1990 (CFO Act), codified at 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. Following such reviews, DHS proposes fee adjustments, if necessary, to ensure that USCIS fees recover the full cost of operating USCIS as authorized by INA section 286(m), 8 U.S.C. 1356(m). USCIS has completed a fee review for the FY 2022/2023 biennial period. The primary objective of any IEFA fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund the anticipated operating costs associated with administering the nation’s legal immigration system. The results indicate that current fee levels are insufficient to recover the full cost of operations funded by the IEFA. Therefore, DHS proposes to adjust USCIS fees. In addition to the requirements of the CFO Act, there are other important reasons for conducting the FY 2022/ 2023 fee review. The fee review: • Allows for an assessment of USCIS policy changes, staffing levels, costs, and revenue and other assessments. USCIS evaluates operational requirements and makes informed decisions concerning program scaling, resource planning, and staffing allocations; and • Provides those served by USCIS with an opportunity to submit comments on the effect of fee changes. USCIS calculates its fees to recover the full cost of operations funded by the IEFA. These costs do not include limited appropriations provided by Congress. If USCIS continues to operate at current fee levels, it would experience an average annual shortfall (the amount by which expenses exceed revenue) of $1,868.2 million. This projected shortfall poses a risk of degrading USCIS operations funded by the IEFA. Although this fee schedule represents a 40-percent overall weighted average increase to ensure full cost recovery, more than a million immigration benefit requestors each year would see no increase or a decrease in costs because their benefit requests have no fee, are fee exempt, or are fee waived.7 In FY 7 USCIS uses a weighted average instead of a straight average because of the difference in volume VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 2022/2023, USCIS estimates approximately 8 million annual average receipts for workload with fees. Of those, USCIS estimates approximately 7 million may pay fees. DHS proposes to maintain the current fee waiver policy which was established in 2011.8 The proposed fees would ensure that IEFA revenue covers USCIS’ costs associated with adjudicating immigration benefit requests. The proposed fee schedule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and vet applicants, petitioners, and beneficiaries. See section V.A. of this preamble for a discussion of IEFA budget history and cost projections for this rulemaking. DHS also proposes to expand fee exemptions for certain applicants and petitioners for humanitarian benefits. Additionally, DHS proposes to establish distinct fees for different categories of petitions for nonimmigrant workers. DHS proposes to set a range of fees that vary by the nonimmigrant classification and to limit petitions for nonimmigrant workers to 25 named beneficiaries. DHS believes the proposed fees more accurately reflect the differing burdens of adjudication and will enable USCIS to adjudicate these petitions more effectively. A. Summary of Economic Impacts The fee adjustments, as well as changes to the forms and fee structures used by USCIS, would result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2023 through FY 2032), DHS estimates the annualized net costs to the public would be $532,379,138 discounted at 3- and 7-percent. Estimated total net costs over 10 years by immigration benefit type and the resulting effect on fee revenue. The 40-percent weighted average increase is a change in the average fee for a form that currently requires a fee compared to the average proposed fee per form. The sum of the current fees, multiplied by the projected FY 2022/ 2023 fee-paying receipts for each immigration benefit type, divided by the total fee-paying receipts, is $518. The sum of the proposed fees, multiplied by the projected FY 2022/2023 receipts for each immigration benefit type, divided by the fee-paying receipts, is $725. There is a $207, or approximately 40-percent, difference between the two averages. These averages exclude fees that do not receive cost reallocation, such as the separate biometric services fee and the proposed genealogy fees. 8 See Policy Memorandum, Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11–26, available at https://www.uscis.gov/sites/ default/files/document/memos/ FeeWaiverGuidelines_Established_by_the_ Final%20Rule_USCISFeeSchedule.pdf) (last viewed March 23, 2022). PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 405 would be $4,541,302,033, discounted at 3-percent and $3,739,208,286 discounted at 7-percent. The proposed changes in this rule would also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/ petitioners include the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, USCIS’ expansion of the electronic filing system to include more forms, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens. Fee increases and other changes in this proposed rule would result in annualized transfer payments from applicants/petitioners to USCIS of approximately $1,612,133,742 discounted at both 3-percent and 7percent. The total 10-year transfer payments from applicants/petitioners to USCIS would be $13,751,827,819 at a 3percent discount rate and $11,322,952,792 at a 7-percent discount rate. Fee reductions and exemptions in this proposed rule would result in annualized transfer payments from USCIS to applicants/petitioners of approximately $116,372,429 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from USCIS to applicants/petitioners would be $992,680,424 at a 3-percent discount rate and $817,351,244 at a 7-percent discount rate. The annualized transfer payments from the Department of Defense (DoD) to USCIS would be approximately $222,145 at both 3- and 7-percent discount rates. The total 10-year transfer payments from DoD to USCIS would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-percent discount rate. B. Summary of Proposed Provisions This proposed rule includes the following proposals: • Adjusting fees according to the schedule in Tables 1 and 26. • Adding new fee exemptions for certain humanitarian programs and preserving the fee waiver requirements that are currently being followed. • Removing fee exemptions that are based only on the age of the person submitting the request. E:\FR\FM\04JAP2.SGM 04JAP2 406 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Eliminating the $30 returned check fee. • Incorporating biometrics costs into the main benefit fee and removing the separate biometric services fee. • Requiring separate filing fees for Form I–485 and associated Form I–131 and Form I–765 filings. • Establishing separate fees for Form I–129, Petition for Nonimmigrant Worker, by nonimmigrant classification. • Revising the premium processing timeframe interpretation from calendar days to business days. • Revising adoption-related requirements, including adding a Request for Action on Approved Form I–600A/I–600 (Form I–600A/I–600, Supplement 3), and associated fees. • Revising regulations related to genealogy searches, including establishing a fee for Form G–1566, Request for Certificate of Non-Existence. • Miscellaneous technical and procedural changes. • Creating lower fees for forms filed online. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 C. Summary of Current and Proposed Fees Table 1 summarizes the current and proposed fees. In addition, the proposed fees and exemptions are incorporated into the draft version of USCIS Form G– 1055 as part of the docket for this rulemaking. In some cases, the current or proposed fee may be the sum of several fees. For example, several immigration benefit requests require an additional biometric services fee under the current fee structure. The table includes rows with and without the additional biometric services fee added to the Current Fee(s) column. The Current Fee(s) column represents the current fees in effect rather than the enjoined fees from the 2020 fee rule.9 Throughout this proposed rule, the phrase ‘‘current fees’’ refers to the fees 9 USCIS provides filing fee information on the All Forms page at https://www.uscis.gov/forms/allforms. You can use the Fee Calculator to determine the exact filing and biometric services fees for any form processed at a USCIS Lockbox facility. See USCIS, Fee Calculator, https://www.uscis.gov/ feecalculator. For a complete list of all USCIS fees, see Form G–1055, Fee Schedule, available from https://www.uscis.gov/g-1055. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 in effect and not the enjoined fees. In this proposal, DHS would eliminate the additional biometric services fee in most cases by including the costs in the underlying immigration benefit request fee. As such, the Proposed Fees(s) column does not include an additional biometric services fee. Some other benefit requests are listed several times because in some cases DHS proposes distinct fees based on filing methods, online or paper. DHS proposes to require fees for Forms I–131 and I–765 when filed with Form I–485. As such, Table 1 includes rows that compare the current fee for Form I–485 to various combinations of the proposed fees for Forms I–485, I–131, and I–765. We grouped the fees into different categories, such as Citizenship and Nationality, Humanitarian, FamilyBased, Employment-Based, and Other. We included immigration benefit requests without fees in a No Fees category. DHS proposes to codify these no fee immigration benefit requests. See, e.g., proposed 8 CFR 106.2(a)(58) through (60). BILLING CODE 9111–97–P E:\FR\FM\04JAP2.SGM 04JAP2 407 Table 1: Comoarison of Current10 and Prooosed Fees Current Proposed Fee(s) Fee(s) Immi~ration Benefit Request Citizenship and Naturalization Monthly Report on Naturalization Papers No Fee No Fee N-4 Application to File Declaration of N-300 Intention $270 $320 Request for Hearing on a Decision in Naturalization N-336 Proceedings - Online or Paper $700 $830 Application for Naturalization N-400 Online or Paper $640 $760 Application for Naturalization Online or Paper (with biometric N-400 services) $725 $760 Application for Naturalization $320 $380 N-400 Reduced Fee Application for Naturalization Reduced Fee (with biometric N-400 services) $405 $380 Application to Preserve Residence for Naturalization N-470 Purposes $355 $425 Application for Replacement Naturalization/Citizenship N-565 Document - Online or Paper $555 $555 Application for Certificate of Citizenship - Online or Paper $1,170 $1,385 N-600 Application for Citizenship and Issuance of Certificate - Online or Paper $1,170 $1,385 N-600K Application for Posthumous No Fee No Fee N-644 Citizenship Medical Certification for Disability Exceptions No Fee No Fee N-648 Humanitarian No Fee No Fee Credible Fear Application for Asylum and for 1-589 Withholding of Removal No Fee No Fee Registration for Classification as No Fee No Fee 1-590 a Refugee Application by Refugee for Waiver of Inadmissibility No Fee No Fee 1-602 Grounds 10These are fees that USCIS is currently charging and not those codified by the 2020 fee rule. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 Difference NIA NIA $50 19% $130 19% $120 19% $35 5% $60 19% -$25 -6% $70 20% $0 0% $215 18% $215 18% NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA EP04JA23.000</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 1: Comparison of Current10 and Proposed Fees Current Proposed Fee(s) Fee(s) lmmieration Benefit Request Application for Status as a Temporary Resident Under 1-687 Section 245A of the INA $1130 $1240 Application for Status as a Temporary Resident Under Section 245A of the INA (with I-687 biometric services) $1 215 $1 240 $1 155 $890 1-694 Notice of Appeal of Decision Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) 1-698 $1 670 $1670 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) (with biometric 1-698 services) $1,755 $1,670 1-730 RefugeelAsylee Relative Petition No Fee No Fee Application for Employment Authorization for Abused Nonimmigrant Spouse No Fee No Fee 1-765V Application for Family Unity 1-817 Benefits $600 $875 Application for Family Unity 1-817 Benefits (with biometric services) $685 $875 Application for Temporary 1-821 Protected Status - Online or Paper $50 $50 Application for Suspension of Deportation or Special Rule Cancellation of Removal (for an 1-881 individual adjudicated by DHS) $285 $340 Application for Suspension of Deportation or Special Rule Cancellation of Removal (for an individual adjudicated by DHS) I-881 (with biometric services) $370 $340 Application for Suspension of Deportation or Special Rule Cancellation of Removal (for a family adjudicated by DHS) $570 $340 1-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal (for a family adjudicated by DHS) (with 1-881 biometric services for two people) $740 $340 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Difference $110 10% $25 $265 2% 30% $0 0% -$85 NIA -5% NIA NIA NIA $275 46% $190 28% $0 0% $55 19% -$30 -8% -$230 -40% -$400 -54% EP04JA23.001</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 408 409 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules I-600A/I600 Suon. 3 I-601A khammond on DSKJM1Z7X2PROD with PROPOSALS2 I-601A 1-751 1-751 VerDate Sep<11>2014 20:56 Jan 03, 2023 Request for Action on Approved Form I-600A/I-600 Application for Provisional Unlawful Presence Waiver Application for Provisional Unlawful Presence Waiver (with biometric services) Petition to Remove Conditions on Residence Petition to Remove Conditions on Residence (with biometric services) Jkt 259001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4725 Difference $0 0% NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA $40 17% NIA NIA $185 35% $175 $285 33% 53% $145 19% $60 7% $145 19% $60 7% NIA $455 NIA NIA $630 $1,105 $475 75% $715 $1,105 $390 55% $595 $1,195 $600 101% $680 $1,195 $515 76% E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.002</GPH> Table 1: Comparison of Current10 and Proposed Fees Current Proposed Fee(s) Fee(s) Tmmiwation Benefit Request Application for Suspension of Deportation or Special Rule Cancellation of Removal (for a family adjudicated by Executive Office for Immigration Review) 1-881 $165 $165 Application for T Nonimmigrant 1-914 Status No Fee No Fee Application for Family Member of T-1 Recipient No Fee No Fee I-914A Petition for U Nonimmigrant No Fee No Fee 1-918 Status Petition for Qualifying Family No Fee No Fee I-918A Member ofU-1 Recipient U Nonimmigrant Status No Fee No Fee I-918B Certification Petition for Qualifying Family $230 $270 1-929 Member of a U-1 Nonimmigrant Reasonable Fear No Fee No Fee Family-Based Petition for Alien fiancé(e) I-129F $535 $720 Petition for Alien Relative I-130 Online $535 $710 1-130 Petition for Alien Relative - Paper $535 $820 Petition to Classify Orphan as an $775 $920 1-600 Immediate Relative Petition to Classify Orphan as an Immediate Relative (with 1-600 biometric services for one adult) $860 $920 Application for Advance I-600A Processing of an Orphan Petition $775 $920 Application for Advance Processing of an Orphan Petition (with biometric services for one adult) I-600A $860 $920 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 1: Comuarison of Current10 and Prouosed Fees Current Proposed Difference Fee(s) Fee(s) Immieration Benefit Request Petition to Classify Convention Adoptee as an Immediate I-800 $775 $920 $145 Relative 19% Application for Determination of Suitability to Adopt a Child from I-800A a Convention Country $775 $920 $145 19% Application for Determination of Suitability to Adopt a Child from a Convention Country (with I-800A biometric services) $860 $920 $60 7% l-800A Request for Action on Approved $385 $455 $70 Form I-800A 18% Suoo. 3 Request for Action on Approved I-800A Form I-800A (with biometric Supp. 3 services) $470 $455 -$15 -3% Emolovment-Based Asvlum Program Fee NIA $600 NIA NIA H-lB Pre-Registration Fee $10 $215 $205 2050% Petition for a Nonimmigrant 1-129 Worker: H-1 Classifications $460 $780 $320 70% H-2A Petition - Named 1-129 Beneficiaries $460 $1,090 $630 137% H-2B Petition - Named I-129 Beneficiaries $460 $1,080 $620 135% Petition for L Nonimmigrant I-129 Worker $460 $1,385 $925 201% Petition for O Nonimmigrant I-129 Worker $460 $1,055 $595 129% Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for Nonimmigrant Worker: E and TN Classifications; and Petition for I-129CW, Nonimmigrant Worker: H-3, P, and I-129 0 or R Classification $460 $1 015 $555 121% Petition for a CNMI I-129CW, Nonimmigrant Worker (with andI-129 biometric services fee) $545 $1,055 $595 129% H-2A Petition - Unnamed I-129 Beneficiaries $460 $530 $70 15% H-2B Petition - Unnamed I-129 Beneficiaries $460 $580 $120 26% Immigrant Petition for Alien I-140 Worker $700 $715 $15 2% Immigrant Petition by Standalone $11,160 1-526 Investor $3,675 $7,485 204% VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.003</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 410 411 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 1-956 I-956G Other khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-90 1-90 1-90 VerDate Sep<11>2014 Application For Regional Center Designation Regional Center Annual Statement $17 795 $47 695 $29 900 168% $3 035 $4470 $1435 47% $455 $455 $0 0% $455 $465 $10 2% $540 $455 -$85 -16% Application to Replace Permanent Resident Card Online Application to Replace Permanent Resident Card - Paper Application to Replace Permanent Resident Card Online (with biometric services) 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.004</GPH> Table 1: Comparison of Current10 and Proposed Fees Current Proposed Difference Fee(s) Fee(s) Immieration Benefit Request Immigrant Petition by Regional I-526E Center Investor $3,675 $11,160 $7,485 204% Application for Employment 1-765 Authorization - Online $410 $555 $145 35% Application for Employment 1-765 Authorization - Paper $410 $650 $240 59% Application for Employment Authorization - Online (with 1-765 biometric services) $495 $650 $240 59% Application for Employment Authorization - Paper (with 1-765 biometric services) $495 $650 $155 31% Petition by Investor to Remove Conditions on Permanent 1-829 Resident Status $3,750 $9,525 $5,775 154% Petition by Investor to Remove Conditions on Permanent Resident Status (with biometric 1-829 services) $3,835 $9,525 $5,690 148% Request for Premium Processing Service when filing: Form 1-129 requesting E-1, E-2, E-3, H-1B, H-3, L (including blanket L-1), 0, P, Q, or TN nonimmigrant classification; or Form 1-140 requesting EB-1, EB-2, or EB-3 1-907 immigrant visa classification $2,500 $2,500 $0 0% Request for Premium Processing Service when filing Form 1-129 requesting H-2B or R 1-907 nonimmigrant classification $1 500 $1 500 $0 0% 412 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 1-102 1-131 1-131 I-131 1-131 1-131 1-131 I-l31A 1-191 1-192 1-192 1-193 khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-212 I-290B 1-360 1-485 VerDate Sep<11>2014 20:56 Jan 03, 2023 1-131 Refugee Travel Document for an individual age 16 or older I- 13 1 Refugee Travel Document for an individual age 16 or older (with biometric services) 1-131 Refugee Travel Document for a child under the age of 16 I-131 Refugee Travel Document for a child under the age of 16 (with biometric services) Application for Carrier Documentation Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) Application for Advance Permission to Enter as Nonimmigrant (filed with USCIS) Application for Advance Permission to Enter as Nonimmigrant (filed with CBP) Application for Waiver of Passport and/or Visa Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal Notice of Appeal or Motion Petition for Amerasian Widow(er) or Special hnmigrant Application to Register Permanent Residence or Adjust Status Jkt 259001 PO 00000 Frm 00012 Fmt 4701 Difference -$75 -14% $235 $55 53% 10% -$30 -5% $135 $165 $30 22% $220 $165 -$55 -25% $105 $135 $30 29% $190 $135 -$55 -29% $575 $575 $0 0% $930 $930 $0 0% $930 $1.100 $170 18% $585 $1,100 $515 88% $585 $695 $110 19% $930 $675 $1,395 $800 $465 $125 50% 19% $435 $515 $80 18% $1,140 $1,540 $400 35% Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.005</GPH> 1-90 Table 1: Comparison of Current10 and Proposed Fees Current Proposed Fee(s) Fee(s) Immie;ration Benefit Request Application to Replace Permanent Resident Card - Paper (with biometric services) $540 $465 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document $445 $680 $575 $630 Application for Travel Document Application for Travel Document (with biometric services) $660 $630 413 Table 1: Comparison of Current10 and Proposed Fees Current Proposed Difference Fee(s) Fee(s) Immigration Benefit Request Application to Register Permanent Residence or Adjust $1,225 $1,540 I-485 $315 26% Status (with biometric services) Application to Register Permanent Residence or Adjust Status (under the age of 14 in I-485 $1,540 certain conditions) $750 $790 105% Forms I-485 and I-131 with $1,225 $2,170 I-485 biometric services $945 77% Forms I-485 and I-765 (filed on I-485 $1,225 $2,190 $965 79% paper) with biometric services Forms I-485, I-131, and I-765 (filed on paper) with biometric $2,820 I-485 services $1.225 $1.595 130% Supplement A, Supplement A to Form I-485, Adjustment of Status I-485A Under Section 245(i) $1,000 $1,000 $0 0% Application to Extend/Change T-539 Nonimmigrant Status - Online $370 $525 $155 42% Application to Extend/Change I-539 Nonimmigrant Status - Paper $620 $250 68% $370 Application to Extend/Change Nonimmigrant Status - Online (with biometric services) 1-539 $455 $525 $70 15% Application to Extend/Change Nonimmigrant Status - Paper I-539 (with biometric services) $455 $620 $165 36% Application for Waiver of I-601 $930 $1,050 $120 Grounds of Inadmissibility 13% Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the I-612 $930 $1,100 $170 INA as Amended) 18% Application for Waiver of 1-690 Grounds of Inadmissibility $715 $985 $270 38% Application for Action on an $465 $675 $210 45% I-824 Approved Annlication or Petition Application for Authorization to Issue Certification for Health I-905 Care Workers $230 $230 $0 0% Application for Civil Surgeon 1-910 Designation $785 $1,230 $445 57% Application for Entrepreneur I-941 $0 0% Parole $1,200 $1,200 Application for Entrepreneur $1,200 I-941 Parole (with biometric services) $1,285 -$85 -7% VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.006</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 1: Comparison of Current10 and Proposed Fees Current Proposed Fee(s) Fee(s) Immi2ration Benefit Request Biometric Services (in most cases) $85 $0 Biometric Services (TPS and EOIR.only) $85 $30 USCIS Immigrant Fee $220 $235 Genealo~ and Records Genealogy Index Search Request G-1041 - Online $65 $100 GenealOb'Y Index Search Request -Paper $65 $120 G-1041 Genealogy Records Request G-1041A $65 $240 Online Genealogy Records Request Paper G-1041A $65 $260 Genealogy Index Search Request G-1041 and and Records Request - Online (digital records) G-1041A $130 $100 G-1566 Certificate of Non-Existence $0 $330 No Fee I-134 Declaration of Financial Suooort No Fee No Fee Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 1-361 Amerasian No Fee No Fee Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for 1-363 Public Law 97-359 Amerasian No Fee No Fee Record of Abandonment of Lawful Permanent Resident No Fee No Fee I-407 Status Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(i) No Fee No Fee I-485J Request for Waiver of Certain Rights, Privileges, Exemptions, 1-508 and Immunities No Fee No Fee Interagency Record of RequestA, G, or NATO Dependent Employment Authorization or Change/Adjustment To/From A, 1-566 G, or NATO Status No Fee No Fee Report of Medical Examination 1-693 and Vaccination Record No Fee No Fee VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Difference -$85 -100% -$55 $15 -65% 7% $35 54% $55 85% $175 269% $195 300% -$30 $330 -23% NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA EP04JA23.007</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 414 415 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 1: Comparison of Current10 and Proposed Fees Current Proposed Fee(s) Fee(s) Immieration Benefit Request Inter-Agency Alien Witness and 1-854 Informant Record No Fee No Fee Affidavit of Support Under 1-864 Section 213A of the INA No Fee No Fee Contract Between Sponsor and I-864A Household Member No Fee No Fee Affidavit of Support Under I-864EZ Section 213A of the INA No Fee No Fee Request for Exemption for Intending Immigrant's Affidavit of Support I-864W No Fee No Fee Sponsor's Notice of Change of 1-865 Address No Fee No Fee 1-912 Request for Fee Waiver No Fee No Fee 1-942 Request for Reduced Fee No Fee No Fee III. Basis for the Fee Review khammond on DSKJM1Z7X2PROD with PROPOSALS2 A. Legal Authority and Guidance DHS is issuing this proposed rule consistent with INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to ‘‘ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants’’),11 and the CFO Act, 31 U.S.C. 901–03 (requiring each agency’s Chief Financial Officer (CFO) to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency’s fees). This proposed rule is also consistent with non-statutory guidance on fees, the budget process, and Federal accounting principles.12 DHS uses OMB Circular 11 The longstanding interpretation of DHS is that the ‘‘including’’ clause in section 286(m) does not constrain DHS’s fee authority under the statute. The ‘‘including’’ clause offers only a non-exhaustive list of some of the costs that DHS may consider part of the full costs of providing adjudication and naturalization services. See 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4, 2016). 12 See OMB Circular A–25, ‘‘User Charges,’’ 58 FR 38142, available at https://www.whitehouse.gov/wpcontent/uploads/2017/11/Circular-025.pdf (July 15, 1993) (revising Federal policy guidance regarding fees assessed by Federal agencies for Government services). See also Federal Accounting Standards Advisory Board Handbook, Version 17 (06/18), Statement of Federal Financial Accounting Standards 4: Managerial Cost Accounting Standards and Concepts, SFFAS 4, available at https:// VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 A–25 as general policy guidance for determining user fees for immigration benefit requests, with exceptions as outlined in section III.B of this preamble. DHS also follows the annual guidance in OMB Circular A–11 if it requests appropriations to offset a portion of Immigration Examinations Fee Account (IEFA) costs.13 Finally, this rulemaking accounts for, and is consistent with, congressional appropriations for specific USCIS programs. FY 2021 appropriations for USCIS provided funding for the E-Verify employment eligibility verification program. Congress provided E-Verify with $117.8 million for operations and support. See Consolidated Appropriations Act, 2021, Pub. L. 116– files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally describing cost accounting concepts and standards, and defining ‘‘full cost’’ to mean the sum of direct and indirect costs that contribute to the output, including the costs of supporting services provided by other segments and entities.); id. at 49– 66 (July 31, 1995). See also OMB Circular A–11, Preparation, Submission, and Execution of the Budget, section 20.7(d), (g) (June 29, 2018), available at https://www.whitehouse.gov/wpcontent/uploads/2018/06/a11.pdf (June 29, 2018). (providing guidance on the FY 2020 budget and instructions on budget execution, offsetting collections, and user fees). 13 OMB Circulars A–25 and A–11 provide nonbinding internal executive branch direction for the development of fee schedules under the Independent Offices Appropriations Act, 1952 (IOAA) and appropriations requests, respectively. See 5 CFR 1310.1. Although DHS is not required to strictly adhere to these OMB circulars in setting USCIS fees, DHS understands they reflect best practices and used the activity-based costing (ABC) methodology supported in Circulars A–25 and A– 11 to develop the proposed fee schedule. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA NIA 260, div. F, tit. IV (Dec. 27, 2020). DHS provides this information only for comparison to the IEFA. E-Verify is not included in this fee review budget because, generally, appropriations, not fees, fund E-Verify. In addition, Congress appropriated $10 million for the Citizenship and Integration Grant Program. Id. Together, the total FY 2021 appropriations for USCIS are $127.8 million. For the last several years, USCIS has not had the authority to spend more than $10 million for citizenship grants. Until recently, grant program funding came from the IEFA fee revenue or a mix of appropriations and fee revenue.14 Because Congress appropriated funds for grants in FY 2021, the $10 million budgeted for citizenship grants is not part of the FY 2022/2023 IEFA fee review budget. B. Effect of FY 2022 Appropriations In FY 2022, Congress provided USCIS additional appropriations for very specific purposes. See Consolidated Appropriations Act, 2022, Public Law 117–103 (Mar. 15, 2022) (‘‘Pub. L. 117– 103’’). USCIS received approximately $389.5 million for E-Verify, application processing, backlog reduction, and the refugee program. See id at div. F, title IV. Of that amount, approximately $87.6 14 USCIS received $2.5 million for the immigrant integration grants program in FY 2013 (Pub. L. 113– 6) and FY 2014 (Pub. L. 113–76). USCIS did not receive appropriations for the immigrant integration grants program in FY 2015, FY 2016, FY 2017, and FY 2018. Congress provided $10 million for citizenship and integration grants in FY 2019 (Pub. L. 116–6) and FY 2020 (Pub. L. 116–93). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.008</GPH> BILLING CODE 9111–97–C Difference 416 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules million is available until the end of FY 2023. Id. These funds will be in a separate appropriated account. Id. USCIS will use $275 million to reduce USCIS application and petition backlogs and delays, support refugee admissions up to a ceiling of 125,000, and invest in enterprise infrastructure improvements such as case file management and video interviewing capabilities.15 USCIS will use the remaining amount, approximately $114.5 million, to fund E-Verify. In addition, Congress provided $20 million for Federal Assistance for the Immigrant Citizenship and Integration Grants program. Id. This is $10 million more than in a typical year.16 USCIS also received $193 million for Operation Allies Welcome (OAW). See Extending Government Funding and Delivering Emergency Assistance Act, 2022, Public Law 117– 43 (Sept. 30, 2021) (‘‘Pub. L. 117–43’’) at div. C. title V, sec. 2501. In FY 2022, approximately $119.7 million is available for use in the Immigration Examinations Fee Account, which is a no-year account. The remaining OAW amount will be available in FY 2023 or until expended. In all of these cases, the laws provide that the funds are only to be used for the specified purposes, and DHS is not required to reduce any current IEFA fee.17 The FY 2022/2023 fee review budget that is the basis for this proposed rule excludes all appropriated funding, including the approximately $529.2 million provided so far in FY 2022. USCIS will use the appropriated funding for the purposes provided by Congress. The appropriations support several DHS priorities, for example, decreasing USCIS application processing times, reducing the backlog of requests already on hand and being adjudicated (and for which a fee may khammond on DSKJM1Z7X2PROD with PROPOSALS2 15 This $275 million includes $250 million that USCIS received in an earlier continuing resolution. See Extending Government Funding and Delivering Emergency Assistance Act, 2022, Public Law 117– 43 (Sept. 30, 2021) at div. A, sec. 132. USCIS received an additional $25 million in the Consolidated Appropriations Act, 2022, Public Law 117–103 (Mar. 15, 2022) at div. F, title IV. 16 For example, Congress appropriated $10 million in FY 2021. See section III.A of this preamble for more information. 17 Public Law 117–43, at section 132, states, ‘‘That such amounts shall be in addition to any other funds made available for such purposes, and shall not be construed to require any reduction of any fee described in section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)):’’ Likewise, Public Law 117–43, at section 2501, states ‘‘That such amounts shall be in addition to any other amounts made available for such purposes and shall not be construed to require any reduction of any fee described in section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).’’ USCIS has a long history of funding citizenship and integration grants from IEFA revenue, appropriations, or a mix of both. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 have already been paid). USCIS may also use the appropriations to expand refugee processing efforts, and support vulnerable Afghans, including those who worked alongside Americans in Afghanistan for the past two decades, as they safely resettle in the United States. These appropriations do not overlap with the fee review budget, which will fund immigration adjudication and naturalization services for future incoming receipts. The full costs of operating USCIS that are included in the fee model do not include separate line items budgeted directly for backlog reduction and OAW. Had the appropriation not been received, DHS and USCIS would have been required to use funds budgeted for other uses to fund the costs of OAW. While DHS and USCIS are very focused on reducing backlogs, our efforts to reduce the backlog did not include a significant shift of IEFA non-premium funds from normal operations to that effort. USCIS funded previous backlog reduction efforts with IEFA premium processing revenue and supplemental appropriations.18 The backlog represents uncompleted work which USCIS already received, but did not complete, and the appropriated funds will assist in clearing that workload. In the absence of appropriations, USCIS may continue to fund backlog reduction efforts with premium processing revenue. DHS received appropriations to fund some of the additional spending that USCIS will require for the refugee ceiling increase to 125,000 beginning in FY 2022, as described in section V.A.2.b.19 This is a significant increase over recent years. The refugee admission ceiling was 62,500 for FY 2021 and 18,000 for FY 2020.20 DHS is 18 The last time USCIS received appropriations for the backlog was in FY 2008. See Consolidated Appropriations Act, 2008, Public Law 110–161, Title IV (Dec. 26, 2007). USCIS received $20 million ‘‘to address backlogs of security checks associated with pending applications and petitions.’’ More recently, Congress authorized USCIS to use premium processing revenue to address the backlog. See Emergency Stopgap USCIS Stabilization Act, Public Law 116–159, Div. D, Title IV (Oct. 1, 2020). 19 See White House, ‘‘Memorandum for the Secretary of State on Presidential Determination on Refugee Admissions for Fiscal Year 2022’’ (Oct. 8, 2021), https://www.whitehouse.gov/briefing-room/ statements-releases/2021/10/08/memorandum-forthe-secretary-of-state-on-presidentialdetermination-on-refugee-admissions-for-fiscalyear-2022/. 20 See White House, ‘‘Memorandum for the Secretary of State on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021’’ (May 3, 2021), https:// www.whitehouse.gov/briefing-room/presidentialactions/2021/05/03/memorandum-for-the-secretaryof-state-on-the-emergency-presidentialdetermination-on-refugee-admissions-for-fiscal- PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 including this amount in its total costs to be recovered by the fees proposed in this rule because the appropriations in Public Law 117–103 will be used to cover the FY 2022 expenses for the refugee program, while this rule is unlikely to be effective until FY 2023. The approximately $87.6 million appropriated for application processing that is available until the end of FY 2023 may be insufficient to fund backlog reduction and refugee processing. For example, the President’s budget request for FY 2023 included $765 million for increasing asylum caseloads, backlog reduction, and refugee processing.21 While USCIS is committed to seeking Congressional appropriations for refugee processing costs in the future, USCIS cannot presume such appropriations, especially given the lack of appropriations in the past. If this fee rule does not account for the possibility of no Congressional funding in future years and Congress fails to fund the program, either the program cannot continue or USCIS will be forced to reallocate resources assigned to another part of the agency for this purpose. However, if USCIS is certain to receive additional appropriations to fund the FY 2023 refugee program at the time of the final rule, then USCIS may reduce the estimated budget requirements funded by IEFA fees accordingly in the final rule. The FY 2022 appropriation laws also require additional services and impose reporting, processing, and monitoring requirements that will add costs for USCIS. See, e.g., Public Law 117–43 at secs. 2502–2503. The reporting requirements of Public Law 117–43 are quarterly and extend through September 30, 2023, although the amounts appropriated are only available for fiscal year 2022. Id at secs. 2503(a) and 2506. DHS will fund these reporting costs with the appropriated funds for FY 2022 and thus has excluded most of them from this rule. Id. at secs. 2502–2503. Congress also added reporting requirements when it reauthorized and revised the Employment-Based Immigrant Visa, Fifth Preference (EB–5) authority. See Public Law 117–103, div. BB and section III.F of this preamble for more information. IEFA fees will fund year-2021-2/; see also Trump White House, ‘‘Presidential Determination on Refugee Admissions for Fiscal Year 2020’’ (Nov. 1, 2019), https:// trumpwhitehouse.archives.gov/presidential-actions/ presidential-determination-refugee-admissionsfiscal-year-2020/. 21 See White House, Budget of the United States, Fiscal Year 2023, p. 20, https:// www.whitehouse.gov/wp-content/uploads/2022/03/ budget_fy2023.pdf (last visited April 20, 2022). E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules operational expenses as needed in FY 2022/2023, including the reporting requirements imposed by Public Law 117–43 and Public Law 117–103 that are not funded by appropriated funds. DHS describes the FY 2022/2023 fee review budget in section V.A. of this preamble. C. Immigration Examinations Fee Account USCIS manages three fee accounts: • The IEFA (includes premium processing revenues),22 • The Fraud Prevention and Detection Account,23 and • The H–1B Nonimmigrant Petitioner Account.24 In 1988, Congress established the IEFA in the Treasury of the United States. See Public Law 100–459, sec. 209, 102 Stat. 2186 (Oct. 1, 1988) (codified as amended at INA sec. 286(m) and (n), 8 U.S.C. 1356(m) and (n)). Fees deposited into the IEFA fund the provision of immigration adjudication and naturalization services. In subsequent legislation, Congress directed that the IEFA fund the full costs of providing all such services, including services provided to immigrants at no charge. See Public Law 101–515, sec. 210(d)(1) and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). Consequently, the immigration benefit fees were increased to recover these additional costs. See 59 FR 30520 (June 14, 1994). The IEFA accounted for approximately 96 percent of total funding for USCIS in FY 2021 and is the focus of this proposed rule. IEFA nonpremium funding represents 83 percent and IEFA premium funding represents 13 percent of USCIS FY 2021 total funding. The remaining USCIS funding comes from appropriations (approximately 3 percent) or other fee accounts (approximately 1 percent) in FY 2021. The Fraud Prevention and Detection Account and H–1B Nonimmigrant Petitioner Account are both funded by fees for which the dollar amount is set by statute.25 DHS has no authority to adjust the fees for these accounts. D. Full Cost Recovery khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS receives millions of requests each year for immigration benefits. These benefits are funded by DHS, 22 INA sec. 286(m), (n), and (u); 8 U.S.C. 1356(m), (n), and (u). 23 INA secs. 214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12) and (13), 1356(v). 24 INA secs. 214(c)(9) and (11), 286(s); 8 U.S.C. 1184(c)(9) and (11), 1356(s). 25 See the supporting documentation included in the docket of this rulemaking. There is additional information on these accounts in Appendix II— USCIS Funding and Account Structure. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 generally, by charging fees for USCIS services. In recent years, however, and as fully explained in this rule preamble and its supporting documents, USCIS costs have surpassed the fees it collects. As stated earlier, DHS publishes this proposed rule under the Immigration and Nationality Act (‘‘INA’’), which establishes the ‘‘Immigration Examinations Fee Account’’ (‘‘IEFA’’) for the receipt of fees it charges. INA section 286(m), 8 U.S.C. 1356(m). The INA allows DHS to set ‘‘fees for providing adjudication and naturalization services . . . at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.’’ Id. The INA further provides that ‘‘[s]uch fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.’’ Id. DHS proposes this rule to address the projected deficits and unsustainable fiscal situation of USCIS that are explained in this proposal and in the supporting documentation in the docket. See section IX.A of this preamble; see also IEFA Non-Premium Carryover Projections in the supporting documentation included in the docket to this rulemaking. Carryover is unobligated or unexpended fee revenue accumulated from previous fiscal years. Because USCIS is primarily fee-funded, it must ensure that it maintains a carryover balance to continue operating, and INA section 286(m), 8 U.S.C. 1356(m) authorizes DHS to set fees at a level to recover ‘‘the full costs’’ of providing ‘‘all’’ ‘‘adjudication and naturalization services,’’ and ‘‘the administration of the fees collected.’’ (emphasis added.) This necessarily includes support costs such as physical overhead, information technology, management and oversight, human resources, national security vetting and investigations,26 accounting and budgeting, and legal, for example. USCIS’ current budget forecasts a deficit based on fully funding all of its operations, and DHS must make up that 26 Congress recommended that DHS establish an organization ‘‘responsible for developing, implementing, directing, and overseeing the joint USCIS-Immigration and Customs Enforcement (ICE) anti-fraud initiative and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting immigration benefits.’’ See, Conference Report to accompany H.R. 4567 [Report 108–774], ‘‘Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005,’’ p. 74, available at https://www.gpo.gov/ fdsys/pkg/CRPT-108hrpt774/pdf/CRPT108hrpt774.pdf. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 417 difference either by cutting costs, curtailing operations, or increasing revenue. DHS has examined USCIS recent budget history, service levels, and immigration trends to forecast its costs, revenue, and operational metrics in order to determine whether USCIS fees would generate sufficient revenue to fund anticipated operating costs. As explained in this rule and the supporting documents, USCIS costs are projected to be considerably higher than projected fee revenue should fees remain at their current levels. The primary cost driver responsible for this increase is payroll, including the need to hire additional staff due to an increase in the volume of applications that USCIS receives and the increase in time per adjudication for USCIS to process many applications, petitions, and requests. See section V.B. for a discussion of USCIS workload and the time to adjudicate applications, petitions, and requests. See also section IX.C for planned increases in efficiency. USCIS has already curtailed its own costs and implemented cost-cutting measures, and any further reductions would adversely affect the services USCIS provides to applicants including adjudications time and processes. See section V.A.2. and section IX.B. of this preamble. Consistent with these authorities, sources, and needs, this proposed rule would ensure that USCIS recovers its full operating costs and maintains an adequate level of service in two ways: First, where possible, the proposed rule would set fees at levels sufficient to cover the full cost of the corresponding services associated with fairly and efficiently adjudicating immigration benefit requests. DHS generally follows OMB Circular A–25, which ‘‘establishes federal policy regarding fees assessed for Government services and for sale or use of Government goods or resources.’’ OMB Circular A–25, section 1, 58 FR 38144. A primary objective of OMB Circular A– 25 is to ensure that Federal agencies recover the full cost of providing specific services to users and associated costs. See id., section 5. Full costs include, but are not limited to, an appropriate share of: • Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement; • Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment; • Management and supervisory costs; and E:\FR\FM\04JAP2.SGM 04JAP2 418 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Costs of enforcement, collection, research, establishment of standards, and regulation. Id., section 6, 58 FR 38145. Second, this proposed rule would set fees at a level sufficient to fund overall requirements and general operations related to USCIS IEFA programs. The current and proposed IEFA fees fund programs that are not associated with specific statutory fees or funded by annual appropriations. The proposed fees would also recover the difference between the full cost of adjudicating benefit requests and the revenue generated when such requests are fee exempt, in whole or in part, when the fees for such requests are set at a level below full cost by statute or policy, and when fees are waived, consistent with past fee calculation methodology. As noted, Congress provided that USCIS may set fees for providing adjudication and naturalization services at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. See INA sec. 286(m), 8 U.S.C. 1356(m).27 DHS has long interpreted this statutory feesetting authority, including the authorization to collect ‘‘full costs’’ for providing ‘‘adjudication and naturalization services,’’ as granting DHS broad discretion to include costs other than OMB Circular A–25 generally provides. See OMB Circular A–25, section 6d(1); INA sec. 286(m), 8 U.S.C. 1356(m). See, e.g., 66 FR 65811 at 65813 (Dec. 21, 2001) (responding to commenters opposed to the use of IEFA fees to pay expenses for unrelated services by stating that those costs must be recovered from the fees charged to other applicants for immigration and naturalization benefits.). In short, DHS may charge fees at a level that will ensure recovery of all direct and indirect costs associated with providing immigration adjudication and naturalization services.28 27 Congress has provided separate, but similar, authority for establishing USCIS genealogy program fees. See INA sec. 286(t), 8 U.S.C. 1356(t). The statute requires that genealogy program fees be deposited into the IEFA and that the fees for such research and information services may be set at a level that will ensure the recovery of the full costs of providing all such services. Id. The methodology for calculating the genealogy program fees is discussed in a separate section later in this preamble. 28 Congress has not defined either term with any degree of specificity for purposes of paragraphs (m) and (n). See, e.g., Barahona v. Napolitano, No. 10– 1574, 2011 WL 4840716, at **6–8 (S.D.N.Y. Oct. 11, 2011) (‘‘While the term ‘full costs’ appears selfexplanatory, section 286(m) contains both silence and ambiguity concerning the precise scope that ‘full costs’ entails in this context.’’). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Consistent with the historical position and practice of DHS, this proposed rule would set fees at a level that ensures recovery of the full operating costs of USCIS, the component within DHS that provides almost all immigration adjudication and naturalization services. See Homeland Security Act of 2002, Public Law 107–296, sec. 451, 116 Stat. 2142 (Nov. 26, 2002) (6 U.S.C. 271). Congress has historically relied on the IEFA to support the vast majority of USCIS programs and operations conducted as part of adjudication and naturalization service delivery. This conclusion is supported by Congress’ limited historical appropriations to USCIS. The agency typically receives only a small annual appropriation for specific uses. USCIS must use fee revenues, as a matter of both discretion and necessity, to fund all operations associated with activities that USCIS is charged by law to administer that are not funded by other means. Certain functions, including the Systematic Alien Verification for Entitlements (SAVE) program 29 and the Office of Citizenship,30 which USCIS has administered since DHS’s inception, are integral parts of fulfilling USCIS’ statutory responsibility to provide immigration adjudication and naturalization services. They are not associated with specific fees, but they may be, and are, funded by the IEFA. Similarly, when a filing fee for an immigration benefit request, such as Temporary Protected Status (TPS), is capped by statute and does not cover the cost of adjudicating these benefit requests, DHS may recover the difference with fees charged to other immigration benefit requests. See INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) (capping TPS registration fee at $50); 8 CFR 103.7(b)(1)(i)(NN); proposed 8 CFR 106.2(a)(48)(i). Also, when DHS exempts certain benefit requests from filing fees, such as applications or 29 USCIS funds the SAVE program by user fees and IEFA funds, as Congress has not provided any direct appropriated funds for the program since FY 2007. SAVE provides an ‘‘immigration adjudication . . . service’’ under INA sec. 286(m) and (n) to Federal, state, and local agencies that require immigration adjudication information in administering their benefits. 30 The Homeland Security Act created the Office of Citizenship at the same time as several other mission-essential USCIS offices, such as those for legal, budget, and policy. Like those offices, the Office of Citizenship has always been considered an essential part of the ‘‘adjudication and naturalization services’’ USCIS provides under section 286(m) and (n) of the INA. As Congress recognized in creating the Office of Citizenship in section 451(f) of the Homeland Security Act (6 U.S.C. 271(f)), providing information to potential applicants for naturalization regarding the process of naturalization and related activities. is an integral part of providing ‘‘such services’’ PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 petitions from qualifying victims who assist law enforcement in the investigation or prosecution of human trafficking (T nonimmigrant status) or certain other crimes (U nonimmigrant status), USCIS recovers the cost of providing those fee-exempt or no-fee services through fees charged to other applicants and petitioners. See, e.g., 8 CFR 103.7(b)(1)(i)(UU) and (VV) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(59) and (60). OMB guidance gives agencies discretion to interpret when additional statutory requirements apply to user fees. See Circular A–25, section 4, 58 FR 38144. In that regard, in INA sec. 286(m), 8 U.S.C. 1356(m), Congress imposed on DHS an additional obligation—to recover the full cost of USCIS operations—over and above the advice in OMB Circular A–25 concerning the direct correlation or connection between costs and fees. Nevertheless, DHS follows OMB Circular A–25 to the extent possible while complying with Congress’s directive, including directing that fees should be set to recover the costs of an agency’s services in their entirety and that full costs are determined based upon the best available records of the agency. See OMB Circular A–25, section 6d(1). DHS applies the discretion provided in INA sec. 286(m), 8 U.S.C. 1356(m), to: (1) use activity-based costing (ABC) to establish a model for assigning costs to specific benefit requests in a manner reasonably consistent with OMB Circular A–25; (2) allocate costs for programs for which a fee is not charged or a law limits the fee amount, (3) distribute costs that are not attributed to, or driven by, specific adjudication and naturalization services; and (4) make additional adjustments to effectuate specific policy objectives.31 The ABC model distributes indirect costs. Indirect costs are not specifically identifiable with one output because they may contribute to several outputs. The ABC model uses a cause-and-effect relationship to distribute most indirect costs. See the supporting documentation included in this docket for information on direct and 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 31 DHS may reasonably adjust fees based on value judgments and public policy reasons consistent with its statutory authority and 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). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules model in a spreadsheet. The fee schedule spreadsheet adjusts the model results to effectuate a desired result such as a lower fee to encourage or not discourage the filing of a specific benefit request. For example, the model determines the direct and indirect costs for refugee workload. The costs associated with processing workload without fees or where fees do not recover full cost must be reallocated outside the ABC model. USCIS reallocates these costs to fee-paying immigration benefit requests, either among the same request, among all feepaying requests or among certain unrelated fee-paying requests. For example, the costs of Form I–485 filings that are fee-waived are shifted to the Form I–485 filings that pay the fee. All immigration benefit request fees that recover their full cost also recover the cost of workloads without fees, such as refugee workload. In this proposal, USCIS is allocating more asylum costs to Forms I–129 and I–140 than the forms would receive without additional intervention. The supporting documentation in the docket contains an in-depth explanation of the ABC model and DHS has included documentation for the fee schedule spreadsheet in the docket for public review. USCIS acknowledges that its ABC model and fee schedule are complex, but both are necessary to allocate the costs of an agency with the size and breadth of purpose as USCIS. DHS invites the public to request a demonstration of how the fee calculations are affected by the direct and indirect cost allocation, shifting costs from free immigration benefits to others, and capping certain fees at decided-upon levels. Typically, Congressional appropriations and two other small fee accounts represent between 2–5 percent (combined) of USCIS’ annual budget.32 Each has statutory limits for both amounts and uses. Appropriations are typically limited to use for E-Verify employment status verification and the Citizenship and Integration grant program. Congress authorizes or requires USCIS to carry out seemingly non-adjudicatory functions and approves the DHS budget, knowing that USCIS must use IEFA funds to cover those expenses which Congress does not otherwise fund through appropriations and statutory fees. Therefore, by approving the use of the IEFA every year to fund seemingly non-adjudicatory 32 This does not include the appropriations received for FY 2022 as discussed in detail earlier in this preamble. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 functions, Congress acknowledges our construction. E. The Use of Premium Processing Funds Under the Emergency Stopgap USCIS Stabilization Act On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act (Continuing Appropriations Act) was signed into law. Public Law 116–159 (Oct. 1, 2020). The Continuing Appropriations Act included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), which allows USCIS to establish and collect additional premium processing fees and to use premium processing funds for expanded purposes. See Public Law 116–159, secs. 4101 and 4102, 134 Stat. 739 (Oct. 1, 2020); 8 U.S.C. 1356(u). That statute is expected to result in continued increases to USCIS premium processing revenue. USCIS can now use premium processing revenue, if necessary, to provide the infrastructure needed to carry out a broader range of activities than previously authorized. Importantly for the purposes of this proposed rule, the USCIS Stabilization Act permits USCIS to make infrastructure improvements in adjudication processes and the provision of information and services to immigration and naturalization benefit requestors. 8 U.S.C. 1356(u)(4). The USCIS Stabilization Act also establishes higher fees for existing premium processing services and permits USCIS to expand premium processing to certain additional benefits. 8 U.S.C. 1356(u)(2) and (3). It also exempts the agency from the requirements of the Administrative Procedure Act (5 U.S.C. 553) when instituting section 4102(b)(1) of the USCIS Stabilization Act. In addition, it provides that the required processing timeframe for the newly designated benefits will not commence until all prerequisites for adjudication are received, which would include biometrics and background check results. See section 4102(b)(2) of the USCIS Stabilization Act. On March 30, 2022, DHS published a final rule, ‘‘Implementation of the Emergency Stopgap USCIS Stabilization Act,’’ implementing part of the authority provided under the USCIS Stabilization Act to offer premium processing for those benefit requests made eligible for premium processing by section 4102(b) of that law. See 87 FR 18227 (premium processing rule). The USCIS Stabilization Act requires that when DHS implements the expansion of immigration benefit types that are designated for premium processing, it must not result in an increase in PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 419 processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated.33 For this reason, DHS did not make premium processing immediately available for all immigration benefit requests newly designated in the premium processing rule. Id. Rather, premium processing will be made available for a newly designated immigration benefit requests only when DHS determines that it will have the resources in place to adjudicate the requests within the time required, and that the availability of premium processing for that immigration benefit request will not adversely affect other immigration benefit requests not designated for premium processing or the regular processing of immigration benefit requests so designated.34 Nevertheless, while acknowledging its peripheral impacts as an overlapping or interrelated rulemaking, DHS has determined that, at this time, premium processing revenue is not sufficient to appreciably affect non-premium fees. Thus, this proposed rule does not include changes directly resulting from the USCIS Stabilization Act or premium processing rule, except to conform 8 CFR 106.4 to the USCIS Stabilization Act’s requirements. DHS recognizes, however, that it will have more information about the revenue collected from premium processing services by the time DHS publishes a final rule. If appropriate, DHS will consider including premium processing revenue and costs in the final rule. USCIS’ forecasted demand for premium processing, revenue projections, and spending plans for the premium processing rule are discussed in greater detail in the premium processing rule. See 87 FR 18227 (Mar. 30, 2022). While DHS estimates that the premium processing rule will increase USCIS annual revenues over the next ten years, as stated previously, because of the resources required for expanding the availability of premium processing to newly designated immigration benefit requests, full implementation of expanded premium processing is estimated to be complete around FY 2025. This timeline for full implementation will allow current premium processing revenue to fund other authorized uses and strategic improvements until adequate revenues exist to cover the costs of providing expedited processing of the new 33 See Public Law 116–159, sec. 4102(c) (Oct. 1, 2020). 34 See Public Law 116–159, sec. 4102(c) (Oct. 1, 2020). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 420 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules requests. USCIS plans to use premium processing revenue to provide premium processing service, improve our information technology infrastructure, and reduce backlogs. Accordingly, although the revenue from premium processing is not considered in this proposed rule as previously indicated, the costs for USCIS to provide premium processing service, improve our information technology infrastructure, and reduce the backlog are also not considered in the proposed fees. Examples of premium processing costs include: • Realignment of $25.1 million for IRIS Directorate information technology (IT) functions and support contracts in FY 2021. • Office of Information Technology GE costs of $363.6 million and $497 million for FY 2021 and FY 2022 respectively. • $57.5 million in FY 2021 and $58.1 million in FY 2022 for Service Center Operations general expenses. Therefore, the projected revenue to be collected from future premium processing services established by the premium processing rule is too attenuated to be considered in the current biennial fee study and the ABC full cost recovery model used for this rule without placing USCIS at risk of revenue shortfalls if that revenue did not materialize. DHS has historically excluded premium processing revenue and costs from its IEFA fee reviews and rulemakings to ensure that premium processing funds are available for infrastructure investments largely related to information technology, are available to provide staff for backlog reduction, and to ensure that nonpremium fees were set at a level sufficient to cover the base operating costs of USCIS. As noted above, if the revenue collected from premium processing services becomes more significant and certain before DHS publishes a final rule, DHS will consider including premium processing revenue and costs in the final rule. In the next USCIS biennial fee study, DHS will take into consideration the future effects of the premium processing rule and the USCIS Stabilization Act allowing for premium processing revenue to be used for more general uses than what was previously authorized. F. EB–5 Reform and Integrity Act of 2022 On March 15, 2022, the President signed the EB–5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022, Public Law 117–103. The EB–5 Reform and Integrity Act of 2022 immediately repealed the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Regional Center Pilot Program created by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act 1993, Public Law 102–395, 106 Stat. 1828, sec. 610(b). The law also authorizes a new EB–5 Regional Center Program, effective May 14, 2022, and is authorized through FY 2026 and makes various changes to the program. As discussed more fully in section VIII.O. of this preamble, DHS proposes new fees for the forms used in the EB–5 program in this rule. The EB–5 Reform and Integrity Act of 2022 requires DHS to conduct a fee study not later than 1 year after the date of the enactment of this Act and, not later than 60 days after the completion of the study, set fees for EB–5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and completing the adjudications within certain time frames. See Public Law 117–103, sec. 106(b). Further, the law provides that the fee adjustments that it requires are notwithstanding the requirements of INA section 286(m), 8 U.S.C. 1356(m), the authority under which we are publishing this rule. Id. The law also provides that the fee study required by 106(a) does not preclude DHS from adjusting its fees in the interim. Id. sec. 106(f). Therefore, DHS proposes new fees for the EB–5 program forms in this rule using the full cost recovery model described herein that we have used to calculate those fees since the program’s inception and not the fee study parameters and processing time frames required by the EB–5 Reform and Integrity Act of 2022. USCIS will collect fees established under INA section 286(m), 8 U.S.C. 1356(m), for the EB–5 program, including as may be effected by a final rule for this proposed rule, until the fees established under section 106(a) of the EB–5 Reform and Integrity Act of 2022 take effect. G. Fee Review History 1. Current State of USCIS Fee Schedule Regulations On August 3, 2020, DHS published the 2020 fee rule, with an effective date of October 2, 2020, to adjust the USCIS fee schedule and make changes to certain other immigration benefit request requirements. On September 29, 2020, the United States District Court for the Northern District of California granted a motion for a preliminary injunction of the 2020 fee rule in its entirety and stayed the final rule’s effective date in ILRC. On October 8, 2020, the United States District Court for the District of Columbia also granted PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 a motion for a preliminary injunction and stay of the effective date of the final rule in NWIRP. DHS subsequently issued a notification of preliminary injunction on January 29, 2021, to inform the public of the two preliminary injunctions. See 86 FR 7493. The Department continues to comply with the terms of those orders and is not enforcing the regulatory changes set out in the 2020 fee rule. In addition to the changes made in the 2020 fee rule, in 2019 DHS revised USCIS fee waiver policies and USCIS Form 1–912, including by requiring fee waiver applicants to use the revised Form I– 912, requiring waiver applicants to submit tax transcripts to demonstrate income, and not accepting evidence of receipt of a means-tested public benefit as evidence of inability to pay as described (‘‘the 2019 Fee Waiver Revisions’’). See USCIS Policy Manual Volume 1: General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee Waivers which were issued on October 25, 2019 and took effect on December 2, 2019 City of Seattle v. Dep’t of Homeland Sec., No. 3:19–CV–07151–MMC (N.D. Cal. Dec.; see also 84 FR 26137 (June 5, 2019) (30day notice announcing changes to USCIS fee waiver polices and USCIS Form I–912, submission to OMB, and requesting public comment). On December 11, 2019, the United States District Court for the Northern District of California preliminarily enjoined the 2019 Fee Waiver Revisions in11, 2019) (‘‘City of Seattle’’). USCIS continues to accept the fees that were in place before October 2, 2020, and follow the guidance in place before October 25, 2019, to adjudicate fee waiver requests. DHS and the parties in ILRC, NWIRP, City of Seattle, and the related cases agreed to, and the courts have approved, a stay of those cases while the agency undertook this fee review and prepared this notice of proposed rulemaking. While DHS is enjoined from implementing or enforcing the 2020 fee rule, the revisions set out in that rule were codified. While 8 CFR part 106 and the other revisions set out in the 2020 fee rule are found in the CFR, DHS did not implement them and continues to charge the fees and follow the fee waiver policies that were, for the most part, in 8 CFR 103.7 as it existed before October 2, 2020. By this rulemaking, DHS will replace the enjoined regulations and correct the currently incorrect USCIS fee regulations in the CFR. Because the 2020 fee rule was codified, this rule proposes to amend the text of certain changes made by the E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 2020 fee rule and codified in the CFR. However, because DHS did not implement the 2020 fee rule, this preamble discusses substantive changes that refer to the requirements of the regulations that existed before October 2, 2020. Likewise, the regulatory impact analysis (RIA) for this proposed rule analyzes the impacts of the changes between the pre-2020 fee rule regulations that DHS is following under the injunctions and those proposed in this rule. This rule proposes relatively minor wording changes to the changes codified by the 2020 fee rule, and, in most cases, DHS is only proposing a new fee amount. However, because DHS could not implement the regulations codified on October 2, 2020, DHS does not believe that describing only the amendments to those sections is adequate to provide the affected public with what it needs to adequately review, understand, and comment on what is being proposed in this rule. Therefore, DHS has published entire portions of the regulatory text being proposed in this rule to provide a clear picture of what DHS is proposing, including sections that are codified in the CFR but were not implemented by USCIS. Many of the proposed provisions in this rule are verbatim or close to verbatim to what is already codified, although enjoined. However, because those provisions are enjoined, DHS will address them as if they are newly proposed and cite to, for example, ‘‘proposed 8 CFR 106.2.’’ When this preamble discusses the no longer codified but still in effect provisions of title 8 of the CFR, the standard of citing to the CFR print edition date 35 may be inaccurate because title 8 was amended by a number of rules during calendar year 2020. Therefore, when citing fee regulations as they existed on October 1, 2020, the regulatory citation will be followed by that date. For example, the citation for the Biometric Services fee that was removed by the 2020 fee rule but is still in effect would be written, ‘‘See 8 CFR 103.7(b)(1)(i)(C) (Oct. 1, 2020).’’ 36 When citing to a provision that was codified by the 2020 fee rule that is not proposed in this rule, the regulatory citation will be followed by the effective date of the 2020 fee rule. For example, the citation for the separate fees for different versions of 35 The soft bound print edition of the CFR is revised on a quarterly basis. Titles 1 through 16 are revised as of January 1 each year. 36 Readers may find the OFR’s eCFR a useful tool to review historic regulatory text. For more information on viewing historical versions of the eCFR, see https://www.ecfr.gov/reader-aids/usingecfr/ecfr-changes-through-time. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Form I–129 is cited as ‘‘8 CFR 106.2(a)(3) (Oct. 2, 2020).’’ As stated previously, this rule would replace the changes about which the plaintiffs in ILRC, NWIRP, and City of Seattle brought suit. For clarity and to avoid unnecessary length in this rule, DHS is not repeating the amendatory instructions and regulatory text for certain changes that were made by the 2020 fee rule if the provision is ministerial, procedural, or otherwise non-substantive, such as a regulation cross reference, form number or form name. Specifically, DHS proposes to make no changes to the following provisions that were codified in the 2020 fee rule: 1. Replace ‘‘§ 103.7(b)(1) of this chapter’’ with ‘‘8 CFR 103.7(d)(4)’’ in 8 CFR 217.2. 2. Replace ‘‘§ 103.7(b)(1) of this chapter’’ with ‘‘8 CFR 103.7(d)(4)’’ in 8 CFR 217.2. 3. Remove ‘‘8 CFR 103.7,’’ ‘‘8 CFR 103.7(b)’’ and ‘‘8 CFR 103.7(b)(1)’’ and ‘‘§ 103.7 of this chapter’’ and replace it with ‘‘8 CFR 106.2’’ in 8 CFR 204.6, 204.310, 204.311, 204.313, 211.1, 211.2, 212.2, 212.3, 212.4, 212.7, 212.15, 212.18, 214.1, 214.3, 214.6, 214.11, 214.16. 216.4, 216.5, 216.6, 223.2, 236.14, 236.15, 245.7, 245.10, 245.15, 245.18, 245.21, 245.23, 245a.12, 245a.13, 245a.20, 245a.33, 248.3, 264.2, 264.5, 264.6, 286.9, 301.1, 319.11, 320.5, 322.3, 322.5, 324.2. 334.2, 341.1, 341.5, 343a.1, 343b.1, 392.4. 4. Replace all references to ‘‘Form I–129’’ and any supplements, and adding in its place either ‘‘the form prescribed by USCIS,’’ ‘‘application or petition,’’ as appropriate in 8 CFR 214.1 and 214.2. 5. Replace ‘‘§ 103.7(b)(1) of this chapter’’ with ‘‘8 CFR 103.7(d)(4)’’ in 8 CFR 217.2. 6. In 8 CFR part 235, replace ‘‘§ 103.7(b)(1) of this chapter’’ and § ‘‘103.7(b)(1)’’ with ‘‘8 CFR 103.7(d)(3)’’ in 8 CFR 235.1, with ‘‘8 CFR 103.7(d)(7)’’ in 8 CFR 235.7, ‘‘8 CFR 103.7(d)(13)’’ in 8 CFR 235.12, and ‘‘8 CFR 103.7(d)(14)’’ in 8 CFR 235.13. 7. Remove the second sentence of § 245.21(b) and remove and reserve §§ 245.15(c)(2)(iv)(B) and (h)(2), 245.23(e)(1)(iii), and 245.24(d)(3) and (i)(1)(iv). 8. Replace ‘‘Missouri Service Center’’ with ‘‘National Benefit Center’’ in 8 CFR 245a.18, 245a.19, and 245a.33. 2. Previous Fee Rules The USCIS IEFA fee schedule that is in effect was published in the DHS FY 2016/2017 fee rule. See 81 FR 73292 (Oct. 24, 2016).37 That rule and associated fees became effective on December 23, 2016. With that rule, DHS adjusted the USCIS immigration benefits fee schedule for the first time in more than six years, increasing fees by 37 The phrase ‘‘FY 2016/2017 fee rule,’’ as used in this proposed rule, encompasses the fee review, proposed rule, final rule, and all supporting documentation associated with the regulations effective as of December 23, 2016. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 421 a weighted average of 21 percent. The fee schedule adjustment recovered all projected costs for FY 2016/2017, including the costs of the Refugee, Asylum, and International Operations Directorate (RAIO), SAVE, and the Office of Citizenship. See 81 FR 26911 and 73293. The fee schedule had been adjusted previously as well, as follows: • Before the creation of DHS, the Department of Justice (DOJ) Immigration and Naturalization Service (INS) 38 adjusted fees incrementally in 1994. See 59 FR 30520 (June 14, 1994). • DOJ conducted a comprehensive fee review using ABC and adjusted most IEFA fees in 1998. See 63 FR 1775 (Jan. 12, 1998) (proposed rule); 63 FR 43604 (Aug. 14, 1998) (final rule). • DOJ implemented fees for Nicaraguan Adjustment and Central American Relief Act (NACARA) between 1998 and 1999. See 63 FR 64895 (Nov. 24, 1998) (proposed rule); 64 FR 27856 (May 21, 1999) (final rule). DOJ adjusted fees for small volume workloads in 2000. See 64 FR 26698 (May 17, 1999) (proposed rule); 64 FR 69883 (Dec. 15, 1999) (final rule). DOJ implemented premium processing in 2001. See 66 FR 29682 (June 1, 2001). DOJ adjusted fees for inflation in 2002. See 66 FR 65811 (Dec. 21, 2001). • Following the creation of DHS in 2002, the agency adjusted fees in 2004 and 2005. See 69 FR 20528 (Apr. 15, 2004); 70 FR 50954 (Aug. 29, 2005) (increasing the fee for Form I–290B from $110 to $385); 70 FR 56182 (Sept. 26, 2005). • After those incremental changes, DHS published a comprehensive FY 2008/2009 fee rule in 2007. See 72 FR 29851 (May 30, 2007). • DHS further amended USCIS fees in the FY 2010/2011 fee rule. See 75 FR 58962 (Sept. 24, 2010). This rule removed the costs of RAIO, SAVE, and the Office of Citizenship from the fee schedule, in anticipation of appropriations from Congress that DHS requested. See 75 FR 58961, 58966. These resources did not fully materialize, requiring USCIS to use other fee revenue to support these programs in the time between the FY 2010/2011 fee rule and the FY 2016/ 2017 fee rule. See 81 FR 26910–26912. The supporting documentation accompanying this proposed rule in the 38 The Homeland Security Act of 2002 abolished the INS and transferred the INS’s immigration administration and enforcement responsibilities from DOJ to DHS. The INS’s immigration and citizenship services functions were specifically transferred to the Bureau of Citizenship and Immigration Services, later renamed U.S. Citizenship and Immigration Services. See Public Law 107–296, sec. 451 (6 U.S.C. 271). E:\FR\FM\04JAP2.SGM 04JAP2 422 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules rulemaking docket at https:// www.regulations.gov contains a historical fee schedule that shows the immigration benefit fee history since October 2005.39 3. Current Fees Table 2 summarizes the IEFA and biometric services fee schedule that took effect on December 23, 2016. DHS is proposing to change the current fee schedule as a result of the FY 2022/2023 fee review. The table excludes statutory fees that DHS cannot adjust or can only adjust for inflation. BILLING CODE 9111–97–P Table 2: Current Non-Statutory IEFA Immigration Benefit Request Fees Form No. 40 Title Fee G-1041 Genealogy Index Search Request $65 Table 2: Current Non-Statutory IEFA Immigration Benefit Request Fees Title Fee Form No. 40 G-1041A Genealogy Records Request $65 1-90 Application to Replace Permanent Resident Card $455 Application for Replacement/Initial Nonimmigrant 1-102 $445 Arrival-Departure Document 1-129/ Petition for a Nonimmigrant Worker $460 129CW I-129F Petition for Alien fiancé(e) $535 1-130 Petition for Alien Relative $535 Application for Travel Document $575 1-131 41 I-131A Application for Carrier Documentation $575 1-140 Immigrant Petition for Alien Worker $700 Application for Relief Under Former Section 212(c) of 1-191 $930 the Immigration and Nationality Act (INA) 42 Application for Advance Permission to Enter as 1-192 $930/585 43 Nonimmigrant $585 1-193 Application for Waiver of Passport and/or Visa Application for Permission to Reapply for Admission 1-212 $930 into the U.S. After Deportation or Removal $675 I-290B Notice of Appeal or Motion 1-360 Petition for Amerasian, Widow(er), or Special Immigrant $435 Application to Register Permanent Residence or Adjust 1-485 $1,140 Status Application to Register Permanent Residence or Adjust 1-485 $750 Status (certain applicants under the age of 14 years )44 1-526 $3,675 Immigrant Petition by Standalone Investor I-526E $3,675 Immigrant Petition by Regional Center Investor 1-539 Application to Extend/Change Nonimmigrant Status $370 1-601 Application for Advance Processing of an Orphan Petition Application for Waiver of Grounds of Inadmissibility 39 For IEFA fee history before 2005, see USCIS, ‘‘FY 2016/2017 Immigration Examinations Fee Account Fee Review Supporting Documentation VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 with Addendum’’ (Oct 25, 2016), https:// www.regulations.gov/document/USCIS-2016-0001- PO 00000 Frm 00022 Fmt 4701 Sfmt 4725 $775 $775 $930 0466. Appendix VIII—IEFA Fee History, page 56, provides fees from FY 1985 to Nov. 2010. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.010</GPH> I-600A Petition to Classify Orphan as an Immediate Relative EP04JA23.009</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-600 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 423 Table 2: Current Non-Statutory IEFA Immigration Benefit Request Fees Title Fee Form No. 40 I-601A Application for Provisional Unlawful Presence Waiver $630 Application for Waiver of the Foreign Residence 1-612 Requirement (Under Section 212(e) of the INA, as $930 Amended) Application for Status as a Temporary Resident under 1-687 $1,130 Section 245A of the Immigration and Nationality Act 1-690 Application for Waiver of Grounds of Inadmissibility $715 1-698 1-751 1-765 1-800 I-800A I-800A Suoo.3 1-817 1-824 1-829 1-881 1-905 1-910 1-929 khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-941 VerDate Sep<11>2014 20:56 Jan 03, 2023 Notice of Appeal of Decision under Section 210 or 245A Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) Petition to Remove the Conditions on Residence Application for Employment Authorization Petition to Classify Convention Adoptee as an Immediate Relative Application for Determination of Suitability to Adopt a Child from a Convention Country $890 $1,670 $595 $410 $775 $775 Request for Action on Approved Form I-800A $385 Application for Family Unity Benefits Application for Action on an Approved Application or Petition Petition by Investor to Remove Conditions on Permanent Resident Status Application for Suspension of Deportation or Special Rule Cancellation ofRemoval 45 Application for Authorization to Issue Certification for Health Care Workers 46 Application for Civil Surgeon Designation Petition for Qualifying Family Member of a U-1 Nonimmigrant Application for Entrepreneur Parole47 $600 Jkt 259001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 $465 $3,750 $285/570 $230 $785 $230 $1,200 EP04JA23.011</GPH> 1-694 424 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 2: Current Non-Statutory IEFA Immigration Benefit Request Fees Title Fee Form No. 40 Application for Regional Center Designation (formerly 1-956 Form 1-924, Application For Regional Center $17,795 Designation Under the Immigrant Investor Program) Regional Center Annual Statement (formerly Form II-956G $3,035 924A, Annual Certification of Regional Center) $270 N-300 Application to File Declaration of Intention Request for a Hearing on a Decision in Naturalization N-336 $700 Proceedings N-400 Application for Naturalization $640 N-400 Application for Naturalization (Reduced Fee) $320 Application to Preserve Residence for Naturalization N-470 $355 Purposes Application for Replacement Naturalization/Citizenship N-565 $555 Document N-600K Other Other Other Application for Certification of Citizenship Application for Citizenship and Issuance of Certificate Under Section 322 USCIS Immigrant Fee Biometric Services Fee H-lB Electronic Registration Fee (per beneficiary) BILLING CODE 9111–97–C khammond on DSKJM1Z7X2PROD with PROPOSALS2 IV. Fee-Setting Approach—Reversal of 2020 Fee Rule In the 2020 fee rule NPRM, DHS explained that it was shifting its fees 40 Form, when used in connection with a benefit or other request to be filed with DHS to request an immigration benefit, means a device for the collection of information in a standard format that may be submitted in a paper format or an electronic format as prescribed by USCIS on its official website. The term ‘‘Form’’ followed by an immigration form number includes an approved electronic equivalent of such form as made available by USCIS on its official website. See 8 CFR 1.2 and 299.1. The word ‘‘form’’ is used in this proposed rule in both the specific and general sense. 41 As described in this notice of proposed rulemaking (NPRM), the United States’ obligations under the 1967 Protocol relating to the Status of Refugees (incorporating Article 28 of the 1951 Convention relating to the Status of Refugees) guide the Application for Travel Document fees for a Refugee Travel Document. The USCIS ABC model does not set these fees. See 8 CFR 103.7(b)(1)(i)(M)(1) and (2) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(7)(i) and (ii). 42 Form I–191 was previously titled Application for Advance Permission to Return to Unrelinquished Domicile. See 8 CFR 103.7(b)(1)(i)(O) (Oct. 1, 2020). 43 The Form I–192 fee remained $585 when filed with and processed by U.S. Customs and Border Protection (CBP). See 8 CFR 103.7(b)(1)(i)(P) (Oct. 1, 2020). 44 This reduced fee is applied to ‘‘an applicant under the age of 14 years when [the application] is: VerDate Sep<11>2014 20:56 Jan 03, 2023 $1,170 Jkt 259001 (i) Submitted concurrently with the Form I–485 of a parent; (ii) The applicant is seeking to adjust status as a derivative of his or her parent; and (iii) The child’s application is based on a relationship to the same individual who is the basis for the child’s parent’s adjustment of status, or under the same legal authority as the parent.’’ 8 CFR 103.7(b)(1)(i)(U)(2) (Oct. 1, 2020). 45 Currently there are two USCIS fees for Form I– 881: $285 for individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)(1) (Oct. 1, 2020). DOJ’s Executive Office for Immigration Review (EOIR) has a separate $165 fee, which applies when one or more applicants file with the immigration court. 46 USCIS excluded Form I–905, Application to Issue Certification for Health Care Workers, from the FY 2022/2023 fee review. As such, it will not appear in any tables in this NPRM that display results of the FY 2022/2023 fee review. USCIS does not have a FY 2022/2023 forecast for Form I–905 because it has a five-year renewal cycle and only four applicants file it. USCIS adjudicates it manually, meaning it does not track the filings in any case management system. Future fee reviews may evaluate this fee if more information is available. 47 USCIS excluded Form I–941, Application for Entrepreneur Parole, from the FY 2022/2023 fee review. As such, it will not appear in tables for workload, in tables for fee-paying volume, or elsewhere in this NPRM. DHS published a separate NPRM that proposed to terminate the program. See 83 FR 24415 (May 29, 2018). However, DHS withdrew that NPRM. See 86 FR 25809 (May 11, 2021). As of Sep. 30, 2021, there are 24 FY 2021 receipts and only 54 receipts since the beginning of the program. DHS does not believe it has sufficient information to review this fee at this time. DHS does not propose any changes to this fee but may evaluate the fee in future fee reviews when more information is available. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 $1,170 $220 $85 $10 away from an ability-to-pay model to a beneficiary-pays model. See 84 FR 62298 (Nov. 14, 2019); see also 85 FR 46795 (Aug. 3, 2020) (final rule stating that DHS had proposed shifting to a beneficiary-pays model). As described by the U.S. Government Accountability Office (GAO), under the beneficiarypays principle, the beneficiaries of a service pay for the cost of providing that service.48 Under the ability-to-pay principle, those who are more capable of bearing the burden of fees pay more for the service than those with less ability to pay. Id. Before the 2020 fee rule, DHS engaged in a balance of these two fee-setting principles when setting USCIS fees. Generally, DHS has given more weight to the ability-to-pay than the beneficiary-pays principle when setting USCIS fees, and has made affordability a central consideration.49 At the same time, DHS has not wholly rejected the beneficiary-pays principle, including when the agency made clear that it would not authorize fee waivers 48 See GAO, ‘‘Federal User Fees: A Design Guide’’ (May 29, 2008), https://www.gao.gov/products/ GAO-08-386SP, at 7–12. 49 See 81 FR 26934 (May 4, 2016) (stating, ‘‘The lower fee would help ensure that those who have worked hard to become eligible for naturalization are not limited by their economic means.’’). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.012</GPH> N-600 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules where such a waiver is inconsistent with the benefit requested, which may require establishing financial stability. See 75 FR 58974 (Sept. 24, 2010). In addition, in past fee rules, DHS has declined to expand USCIS fee waivers to benefits for which the eligibility requires financial stability because that would contradict the rationale for shifting costs related to those applications to others through fee waivers. See 72 FR 29863 (May 30, 2007). DHS has also previously declined suggestions that it reduce the burden on low-income requestors by setting USCIS fees based on income using a tiered fee system, because the benefits from such a scenario would not justify the administrative costs added by requiring officers to adjudicate the documentation of the applicant’s income and eligibility for the requested fee level before processing the request. Id. In the 2020 fee rule, DHS was concerned that the level of USCIS annual forgone revenue from fee waivers and exemptions had increased markedly from $191 million in the FY 2010/2011 fee review to $613 million in the FY 2016/2017 fee review. See 85 FR 46807 (Aug. 3, 2020) (citing 81 FR 26922 and 73307). DHS estimated in the 2020 fee rule supporting documentation that, without changes to fee waiver policy, it would forgo revenue of almost $1.5 billion and believed that the fees necessary to recoup that foregone revenue 50 were too high to support the continuation of the existing fee waiver policy.51 DHS notes, however, that in the 2020 fee rule, the agency did not abandon the ability-topay principle altogether, and still provided for fee exemptions and statutorily mandated fee waivers in certain circumstances. In this new fee rule, DHS proposes to return the focus of its fee-setting away from emphasizing the beneficiary-pays principle towards the historical balance between the beneficiary-pays and ability-to-pay principles. DHS proposes this for several reasons. First, DHS has been directed by the President to reduce barriers and promote accessibility to the immigration benefits that it administers. See Executive Order 14012, 86 FR 8277 (Feb. 2, 2021) (E.O. 14012). As the President noted in section 1 of the Executive order, new Americans and their children fuel our economy; contribute to our arts, culture, and 50 In this context, ‘‘foregone revenue’’ refers to the dollar value associated with an approved fee waiver or fee-exempt forms and benefits. 51 See, e.g., 85 FR 46799 (Aug. 3, 2020) (stating that the fee for Form N–400 would represent the estimated full cost to USCIS and be determined in the same manner as most other USCIS fees). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 government; and have helped the United States lead the world in science, technology, and innovation. DHS agrees with the President’s goals of E.O. 14012, and that our laws and policies must encourage full participation by immigrants, including refugees, in our civic life, and that immigration benefits must be delivered effectively and efficiently. More specifically, sections 3(a)(i) and 5(a)(iii) of E.O. 14012, respectively, instruct the Secretary of Homeland Security to identify barriers that impede access to immigration benefits and make the naturalization process more accessible to all eligible individuals, including through a potential reduction of the naturalization fee and restoration of the fee waiver process. Id. USCIS has already taken crucial steps towards ensuring fair access and removing unnecessary barriers and bureaucracy. See, e.g., Preserving Continuous Residence and Physical Presence for Purposes of Naturalization while Engaged in Religious Duties Outside the United States (May 25, 2021); 52 Naturalization Eligibility and Voter Registration Through a State’s Benefit Application Process (May 27, 2021); 53 Veterans Residing Outside the United States and Naturalization (May 28, 2021); 54 Assisted Reproductive Technology and In-Wedlock Determinations for Immigration and Citizenship Purposes (August 5, 2021); 55 Clarifying Guidance on Military Service Members and Naturalization (November 12, 2021); 56 Demonstrating Eligibility for 52 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Preserving Residence, https://www.uscis.gov/sites/default/files/document/ policy-manual-updates/20210525-Preserving Residence.pdf (last updated May 25, 2021). 53 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Naturalization Eligibility and Voter Registration Through a State’s Benefit Application Process, https://www.uscis.gov/sites/ default/files/document/policy-manual-updates/ 20210527-VoterRegistration.pdf (last updated May 27, 2021). 54 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Veterans Residing Outside the United States and Naturalization, https:// www.uscis.gov/sites/default/files/document/policymanual-updates/20210528-MilitaryVeterans.pdf (last updated May 28, 2021). 55 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Assisted Reproductive Technology and In-Wedlock Determinations for Immigration and Citizenship Purposes, https:// www.uscis.gov/sites/default/files/document/policymanual-updates/20210805-AssistedReproductive Technology.pdf (last updated Aug 5, 2021). 56 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Clarifying Guidance on Military Service Members and Naturalization, https://www.uscis.gov/sites/default/files/document/ policy-manual-updates/20211112-Military Naturalization.pdf (last updated Nov 12, 2021). PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 425 Modification under Section 337 (November 19, 2021).57 As part of implementing Executive Order 14012, USCIS published a Request for Public Input 58 (RPI) on reducing barriers and burdens across USCIS benefits and services as part of implementing Executive Order 14012. It received nearly 7,400 public comments as a result. USCIS analyzed these comments and incorporates actionable suggestions into this proposed rule including expanding fee exemptions, clarifying the financial hardship criteria for fee waivers, and maintaining the reduced fee for naturalization. Second, DHS has read and considered the many comments that we received on the 2020 fee rule that stated that the increased fees and restrictions on fee waivers in that rule would result in many fewer residents accessing a desired immigration status for which they are eligible, simply because they cannot afford to apply. Others wrote that the proposed naturalization fee increase would make naturalization unaffordable. Thus, many public comments on the 2020 fee rule indicated a preference for DHS placing greater emphasis on the ability-to-pay principle in setting its fees. As a result of these comments, and to encourage full economic and civic participation by immigrants, DHS has also analyzed the effects of this rule in light of its impacts on low-income populations and organizations that assist them in section IX.A, Impact of Fees. As stated earlier, DHS is operating under two injunctions that preclude it from implementing or following the changes made by the 2020 fee rule, as well as an injunction that precludes it from implementing the 2019 Fee Waiver Revisions. Thus, DHS must consider the concerns expressed and the courts’ findings in those cases. For example, in ILRC, the order granting the injunction found that DHS failed to analyze the effect of that rule’s fees on the demand for immigration benefit requests. The order also found that the rule’s deviations from the beneficiary-pays principle conflict with the comments presented on the effects of these changes on low-income and vulnerable 57 This guidance allows children born to married legal parents, one of whom has a genetic or gestational link to the child, to acquire citizenship because these children are now considered born in wedlock. Immigration and Nationality Act. U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Demonstrating Eligibility for Modification under Section 337 of the Immigration and Nationality Act, https://www.uscis.gov/sites/ default/files/document/policy-manual-updates/ 20211119-ModificationUnderINA337.pdf (last updated Nov 19, 2021). 58 See 86 FR 20398 (Apr. 19, 2021). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 426 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules immigrant populations. See ILRC at 27. Similarly, the court in NWIRP agreed with the plaintiffs that the fees and fee waiver regulations in the 2020 fee rule could cause harm to low-income immigrants. See NWIRP at 72. DHS proposes to set USCIS fees at the level required to recover the full cost of providing immigration adjudication and naturalization services, as permitted or required by law, while providing certain fee exemptions and waivers for lowincome immigrants. As USCIS estimates that the current fee structure will not generate sufficient revenue to cover the projected costs of providing immigration adjudication and naturalization services under the ABC methodology, the fees for many immigration benefit requests will by necessity increase. Nevertheless, where DHS has determined that this rule’s approach would inequitably impact the ability of those who may be less able to afford the proposed fees to seek an immigration benefit for which they may be eligible, DHS proposes either to maintain the pre-2020 fee rule regulations, fee waivers, and reduced fees that USCIS is following, or to add new fee exemptions to address accessibility and affordability. For example, as detailed more fully later in this preamble, DHS proposes to maintain the fee waiver regulations and eligibility guidance that took effect in 2010. Consistent with previous fee rules, DHS also proposes to limit the fees for certain benefit requests in recognition that fees set at the ABC model output for these forms would be overly burdensome. For example, as detailed later in this preamble, both considering the affordability of naturalization, and to promote naturalization for the benefits it provides to the country, DHS proposes to set the fee for Form N–400 at a level below what is required to recover the estimated full cost of providing naturalization services. In addition, DHS proposes to expand fee exemptions for certain vulnerable populations, as described later in this preamble.59 DHS acknowledges that the ability-topay principle necessarily requires the shifting of costs. If some customers are exempt from paying fees or have their fees waived, total fee collections cannot cover the total program costs unless other users pay higher fees to cover the costs associated with processing the benefit requests of non-paying users. USCIS follows the principles in OMB Circular A–25 and uses an ABC model to align its fees closely with the estimated cost for the relevant service. 59 See section VII, Fee Exemptions. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 When DHS deviates from the ABC model to limit, waive, or exempt certain customers from fees because they are overly burdensome, or to advance a public policy priority, this results in the fees for particular services being set at a level that is higher than the estimated cost of providing those services to feepaying users. That means that DHS examined each fee in this proposed rule, and the fees proposed represent the Department’s best effort to balance of access, affordability, equity, and benefits to the national interest while providing USCIS with the funding necessary to maintain adequate services. V. FY 2022/2023 Immigration Examinations Fee Account Review A. USCIS Projected Costs and Revenue The primary objective of the fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund anticipated operating costs associated with administering USCIS’ role in the Nation’s legal immigration system. USCIS examines its recent budget history, service levels, and immigration and naturalization trends to forecast costs, revenue, and operational metrics. These data help USCIS identify the difference between anticipated costs and revenue as well as calculate proposed fees. DHS provides a brief summary of how the USCIS budget has evolved from the projections included in the FY 2016/2017 fee rule for context before discussing the elements of the FY 2022/2023 fee review. The FY 2022/2023 fee review encompasses three core elements: • Cost projections; • Revenue projections; and • Cost and revenue differential (the difference between cost and revenue projections). 1. USCIS Budget History USCIS’ costs have grown beyond the levels projected in the FY 2016/2017 fee rule, which went into effect on December 23, 2016. This cost growth reflects increased USCIS workloads and staffing requirements during that time. The FY 2016/2017 fee rule estimated that an average annual IEFA nonpremium cost projection of $3,037.8 million was required to meet USCIS’ operational requirements. Spending grew by $1 billion or 28 percent between FY 2016 and FY 2019, while revenue only grew by $406 million or 12 percent during the same period. Spending was driven by $943 million of one-time and recurring enhancements provided over the same time period due to a leadership PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 directive to reduce carryover to around $800 million. The majority of this increased spending was attributed to an additional 3,800 positions that were added between FY 2017 and FY 2019.60 No enhancements were added in FY 2020 due to budget reductions. Increased spending in enhancements in FY 2019 were approved based on the assumption that the FY 2019/2020 fee rule would be implemented in the summer of FY 2019, however subsequent to those decisions the FY 2019/2020 fee rule was delayed until the end of FY 2020. Despite the spending increases between FY 2016 and FY 2019, USCIS did not always spend as much as the plan called for, and carryover remained in a relatively strong position (about $1.2 billion) at the end of both FY 2017 and FY 2018. By the end of FY 2019, however, carryover had decreased to about $850 million. In first half of FY 2020, before the onset of the COVID–19 pandemic, the agency had substantially increased its first and second quarter spending, due to the timing of contracts and on-board levels; this drew carryover down to about $600 million at the end of February, with less than $200 million in non-premium carryover, which funded 80 percent of USCIS operations. Although USCIS had surplus premium funding of about $400 million, those funds were fenced due to statutory restrictions and could not be used to offset the deficit. In the Spring of 2020, in the wake of the COVID–19 pandemic, USCIS revenue dropped by 40 percent in April and an additional 25 percent in May from the forecasted collections. That created a possibility that USCIS might violate statutory anti-deficiency requirements and led to dramatic cuts in spending through the last half of FY 2020, a hiring freeze, and planned furloughs if revenue did not increase. Towards the end of June and July of 2020, revenue began to return to normal levels, and in conjunction with major budget cuts, allowed USCIS to avoid the furloughs. In FY 2021, USCIS instituted 32 percent cuts to non-payroll expenses, continued the hiring freeze through April 2021, and did not fund enhancements. While USCIS carryover has stabilized and is projected to be over $600 million from non-premium fees at the end of FY 2022, USCIS is still living with effects of those 32 percent budget cuts. USCIS has a minimum carryover 60 See the supporting documentation in the docket for this rule for more information. Appendix Table 9 on page 49 shows on-board staffing by office and fiscal year. Please note that on-board staffing is a subset of authorized staffing. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules threshold of $1,063.8 million in the non-premium IEFA.61 The FY 2021 non-premium IEFA cost projections, which USCIS uses as the base for its FY 2022/2023 fee review cost projections, totals $3,776.3 million.62 As discussed later in greater detail, the FY 2022/2023 fee review 427 projects costs of $5,150.7 million for USCIS to fulfill its IEFA non-premium operational needs on an average annual basis. The combined average non-payroll or general expenses (GE) 63 budget for the FY 2016/2017 fee review of $1,406.5 million increased by only 4.3 percent to $1,467.0 million in the FY 2021 Operating Plan (OP), which is a detailed spend plan for the agency that is finalized in the summer before the start of the fiscal year. Typically, the operating plan is executed closely to the original plan and is indicative of the resources needed for each of the Directorates and Program Offices to execute throughout the year. Excluding increased contingency funding, the GE budget actually decreased from $1,406.5 million in the FY 2016/2017 fee review to $1,258.0 million in the FY 2021 OP, a decrease of $148.5 million or 10.6 percent. As evidenced by the financial strains placed on USCIS by the COVID– 19 pandemic, however, USCIS must maintain additional contingency funding to deal with emergent operational needs and provide funding in the event of unforeseen financial shortfalls and seasonal fluctuations in filing volumes and revenues.64 Additionally, GAO acknowledges that fee funded agencies may need to designate funds as operating reserves to weather periods when revenue collections are lower than costs.65 Therefore, USCIS decided to increase its contingency cost projection in the FY 2021 OP and maintain the same level in the fee review cost budget in case of continued negative effects from the pandemic. USCIS may use contingency funding to cover emergent costs from policy decisions, renegotiation of contracts, or new leases that were not included initially in the OP or in the projected biennial period’s cost budget. The limited growth in USCIS’ GE budget is the result of actions taken by USCIS to constrain cost growth. In response to reduction in applicant volume and associated revenues during the COVID–19 pandemic, USCIS implemented significant GE cost-saving measures in FY 2020 and FY 2021. These cuts enabled USCIS to redirect resources to fund payroll and ensure that USCIS did not have to furlough any employees. These cuts included GE reductions of up to 32 percent across all USCIS offices, including a pause on new GE expenditure, reduced travel, implementing shorter periods of performance for contracts, and a freeze on implementing new contracts. Notable examples of GE budget decreases from FY 2016/2017 to FY 2021 include: • $103.7 million (32 percent) decrease in IT equipment, software, and related contractor support; • $36.8 million (52.2 percent) decrease in the USCIS Office of Citizenship and Applicant Information Services’ (CAIS) GE budget, which included a reduction to the call center support contract and removal of Office of Citizenship grants that were included in the FY 2016/2017 fee rule budget; • $27.3 million (59.9 percent) decrease in travel and training across all USCIS offices; and • $52.4 million (83 percent) decrease in Service Center Operations (SCOPS) contractor support. While USCIS will need to reverse some of the GE spending cuts it has made to ensure the continuation of its operations, USCIS projects that some of these cuts will be permanent, in an effort to limit cost growth and the increase in fees. Further details of restored GE budget cuts in the FY 2022/ 2023 fee review cost projections are found in section V.A.2.a of this preamble. In contrast to the limited growth in non-payroll expenses relative to the FY 2016/2017 fee review budget, USCIS’ payroll costs have increased substantially due to an increase in staffing. The combined average IEFA non-premium payroll budget for the FY 2016/2017 fee review of $1,631.3 million increased by 41.6 percent to $2,309.3 million in the FY 2021 OP. USCIS experienced a significant increase in application volume during the FY 2016/2017 to FY 2021 period and adjusted its staffing requirements accordingly. The FY 2016/2017 fee review accounted for 14,543 fully funded positions, while as of pay period 6 of FY 2021 (March 27, 2021) USCIS had 18,840 positions authorized to be funded with IEFA non-premium funds (an increase of 29.5 percent). This greater number of positions reflects increased operational demands on USCIS, including growth in workload volumes, growth in the time required 61 See the IEFA Non-Premium Carryover Projections section of the supporting documentation for how and why USCIS requires a minimum carryover balance. 62 The USCIS FY 2021 Annual Operating Plan amount of $3,776 million was reported in the FY 2022 Congressional Budget Justification and USCIS used this amount for cost projections to develop the proposed new fee structure. In March 2021, the USCIS FY 2023 Congressional Budget Justification reported a different total FY 2021 Annual Operating Plan of $3,524 million. This fee review uses the earlier FY 2021 operating plan amount, which was a reasonable assumption at the time. 63 General expenses (GE) refers to non-pay expenses, such as office equipment, technology, training, and travel. 64 See USCIS, ‘‘Deputy Director for Policy Statement on USCIS’ Fiscal Outlook’’ (June 25, 2020), https://www.uscis.gov/news/news-releases/ deputy-director-for-policy-statement-on-uscis-fiscaloutlook. See also USCIS, ‘‘USCIS Averts Furlough of Nearly 70% of Workforce (Aug. 25, 2020), https://www.uscis.gov/news/news-releases/uscisaverts-furlough-of-nearly-70-of-workforce. 65 See U.S. Government Accountability Office, Federal User Fees: Fee Design Options and Implications for Managing Revenue Instability (Sept. 30, 2013), https://www.gao.gov/assets/gao13-820.pdf. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.013</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 3: FY 2016/2017 Fee Rule Cost Projections vs. FY 2021 Operating Plan (Dollars in Thousands) FY 2016/2017 FY 2021 Type Difference Change Average Operating Plan $1,631,320 $2,309,288 $677,967 Payroll 41.6% NonPayroll $1,406,466 $1,467,050 $60,584 4.3% $3,037,786 $3,776,338 $738,552 Total 24.3% 428 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules per case which is in part driven by a combination of changing adjudication policy and length of the forms, and expanded responsibilities for other offices, such as Fraud Detection and National Security (FDNS), including social media vetting.66 Payroll budget increases from FY 2016/2017 to FY 2021 include: • New positions across all USCIS offices: $324.2 million (19.9 percent). Due to the operational impact of the COVID–19 pandemic and potential furlough of USCIS employees, FY 2020 and FY 2021 did not have any new authorized positions; • Pay raises: $167.7 million (10.0 percent). Pay raises were 1.3 percent in FY 2016 and 1.0 percent in FY 2021.67 The highest annual pay raise of 3.1 percent occurred in FY 2020; and • Significant payroll increases due to an increase in staffing levels in these USCIS offices and directorates: Æ Asylum Division: $49.7 million (40.2 percent); Æ Field Office Directorate: $150.5 million (24.7 percent); Æ FDNS: $91.4 million (73.6 percent); and Æ SCOPS: $184.6 million (68.7 percent). 2. FY 2022/2023 Cost Projections In developing projected program needs for FY 2022/2023, USCIS used the FY 2021 operating plan (OP) as the starting point. Actual and anticipated changes from the FY 2021 OP are discussed in this section. Enacted funds from FY 2022 are not included in the projections. In addition, there are standard pay adjustments and increases to programs to maintain current services that are fairly standard in budget development. Examples of necessary adjustments include: • Pay inflation and within-grade pay step increases ($2.67 billion in FY 2022 and an additional $2.76 billion in FY 2023). The assumed Government-wide pay inflation rate for FY 2022 and FY 2023 is 2.7 percent and 1.6 percent respectively. • Staffing requirements ($315.7 million in FY 2022 and an additional $34.8 million in FY 2023). USCIS models staffing allocations and costs based on projected workload volumes. See section V.B. of this preamble for information on how workload and completion rates affect staffing. Staffing allocation model cost estimates are also influenced by position type, grade level and locality. Overall, the IEFA cost baseline increases by 35.3 percent in FY 2022 and 37.4 percent in FY 2023 both relative to the FY 2021 OP. A detailed summary of adjustments to the FY 2021 OP that resulted in the projected budget requirements for FY 2022 and FY 2023 follows. Despite the growth in USCIS’ IEFA non-premium budget from the levels projected in the FY 2016/2017 fee review to the levels in the FY 2021 OP, USCIS remains underfunded to accomplish its operational objectives, and processing backlogs continue to grow. See section III.A of this preamble for information on supplemental appropriations for the backlog.68 USCIS projects that its IEFA non-premium cost projections must increase by 36.4 percent from $3,776.3 million in FY 2021 to an average of $5,150.7 million in FY 2022/2023 to fulfill USCIS’ operational requirements. This increase in funding will ensure that USCIS is able to meet its operational needs during the biennial period. The following subsections provide more details on the required increases for the FY 2022/2023 cost projections. a. General Expenses In the USCIS cost projections, GE represent all costs that are not related to pay or benefits of employees. USCIS estimates that its GE budget must increase by $335.8 million (22.9 percent) from $1,467.0 million in FY 2021 to a combined average of $1,802.9 million in the FY 2022/2023 fee review cost projections. Excluding contingency funding, USCIS projects the GE budget must increase from $1,258.0 million in 66 In 2004, USCIS established the Fraud Detection and National Security Directorate (FDNS) in response to a Congressional recommendation to establish an organization ‘‘responsible for developing, implementing, directing, and overseeing the joint USCIS-Immigration and Customs Enforcement (ICE) anti-fraud initiative and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting immigration benefits.’’ See, Conference Report to accompany H.R. 4567 [Report 108–774], ‘‘Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005,’’ p. 74, available at https:// www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/ CRPT-108hrpt774.pdf. The Fraud Prevention and Detection Account and the H–1B Nonimmigrant Petitioner Account are funded by statutorily set fees, and divided among USCIS (for fraud detection and prevention), the National Science Foundation, and the U.S. Department of Labor. See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out of both the IEFA and the fraud detection and prevention account because the fees fixed by the statute are insufficient to cover the full costs of FDNS. The Fraud fee account revenue collections are divided in three thirds, one for the Department of State, one for the Department of Labor, and one for USCIS. https:// www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/ CRPT-108hrpt774.pdf. The Fraud Prevention and Detection Account and the H–1B Nonimmigrant Petitioner Account are funded by statutorily set fees, and divided among USCIS (for fraud detection and prevention), the National Science Foundation, and the U.S. Department of Labor. See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out of both the IEFA and the fraud detection and prevention account because the fees fixed by the statute are insufficient to cover the full costs of FDNS. The Fraud fee account revenue collections are divided in three thirds, one for the Department of State, one for the Department of Labor, and one for USCIS. 67 For a history of Federal salary data, see Office of Personnel Management (OPM), Policy, Data, Oversight: Pay and Leave available at https:// www.opm.gov/policy-data-oversight/pay-leave/ salaries-wages/. OPM sets Federal salary levels, not DHS. 68 The appropriated funds will be focused mainly on reducing current backlogs and not on processing future requests. If USCIS does not increase revenue to meet the costs of timely adjudicating all incoming receipts as proposed in this rule, USCIS will not be able to keep up with demand and backlogs are likely to rematerialize despite the funds provided for clearing those requests on hand. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.014</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 4: FY 2021 Operating Plan vs. FY 2022/2023 Fee Review Cost Projections (Dollars in Thousands) Percent of FY 2021 FY 2022/2023 Type Difference Change Total Change Operating Plan Average 75.6% Payroll $3 347,853 $1,038 565 $2 309 288 45.0% Non24.4% Payroll $1 802,854 $1 467 050 $335 805 22.9% 100.0% $3,776,338 $5,150,708 $1,374,370 Total 36.4% Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 FY 2021 to $1,592.7 million in FY 2022/ 2023, or 26.6 percent. This increase in GE is primarily the result of the planned reversal of reductions made in FY 2020 and FY 2021 due to the COVID–19 pandemic. These reductions were necessary at the time to preserve the financial stability of USCIS, but some of them must be reversed to ensure that USCIS can adequately perform the adjudication and naturalization services that it is statutorily charged to administer. Notable examples of increases in the GE budget from FY 2021 to the FY 2022/2023 fee review average are projected to occur for these directorates and programs: • SCOPS contractor support is projected to increase $41 million (386.4 percent) above the FY 2021 level. The funding for SCOPS contractor support would revert close to the level projected in the FY 2016/2017 fee rule because the FY 2021 level had been reduced due to funding constraints associated with the COVID–19 pandemic. • GE is projected to increase by $35 million to support increased refugee processing associated with a proposed increase to the refugee ceiling. • Immigration Records and Identity Services (IRIS) is projected to have additional FY 2022/2023 Federal Bureau of Investigation (FBI) fingerprint and background check service costs of $16.7 million based on FBI fees and workload estimates. • In addition to the restoration of $13 million for Application Support Center (ASC) contract support, costs increase as USCIS restores ASC capacity following the COVID–19 pandemic. USCIS temporarily suspended in-person services between March 18, 2020 until June 4, 2020.69 ASC appointments that were cancelled due to the temporary office closure were rescheduled causing some individuals to experience significant processing delays. To reduce costs, the annual contract was deferred to nine months. The remaining three 69 USCIS temporarily suspended in-person office services to help slow the spread of COVID–19 and ensure the safety of our staff and communities. These temporary closures and capacity limitations led to a substantial backlog of cases awaiting biometrics appointments. USCIS has since extended operating hours at high-volume ASCs and adjusted biometrics submission requirements for certain applicants to address the backlogs. See USCIS, USCIS Temporarily Closing Offices to the Public March 18–April 1, https://www.uscis.gov/news/ alerts/uscis-temporarily-closing-offices-to-thepublic-march-18-april-1 (last updated Mar. 17, 2020); see also USCIS, USCIS Preparing to Resume Public Services on June 4, https://www.uscis.gov/ newsroom/alerts/uscis-preparing-to-resume-publicservices-on-june-4 (last updated Sept. 16, 2001). At the date of publication of this proposed rule, ASC backlogs have mostly been eliminated. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 months were added to the 12-month optional period to resume in FY 2022. • The Office of the Chief Information Officer’s GE budget is projected to increase by $35.3 million (16 percent) to support the USCIS staffing requirements in the FY 2022/2023 fee review. The additional funding is required to provide IT support, equipment, and network services. This excludes projects funded from premium processing. As stated earlier, non-premium IEFA cost projections are the basis for the fee review budget. • The budget includes an increase of $9.8 million at the National Records Center (NRC) to reduce the Freedom of Information Act (FOIA) backlog at the NRC in FY 2022/2023. DHS has requested appropriations to fund this additional spending. If USCIS receives appropriations, USCIS may be able to revise downward the cost projections funded by IEFA fees. b. Payroll USCIS projects that it must increase its IEFA non-premium pay budget by $1,038.6 million (45 percent) from $2,309.3 million in FY 2021 to $3,347.9 million in the FY 2022/2023 fee review period to meet its operational requirements. The payroll growth includes: • Pay and benefit adjustments for onboard staff: $313.1 million. USCIS budget projections include increased costs associated with the Governmentwide cost of living adjustment (COLA) assumption of 2.7 percent for FY 2022 and 1.6 percent for FY 2023.70 • Pay and benefits for new staff: $590.0 million. Projected FY 2022 and FY 2023 workloads exceed current workload capacity by 10.2 percent, thereby requiring additional staff. The FY 2022 and FY 2023 Staffing Allocation Models (SAMs) 71 estimated an additional 1,921 positions are necessary to meet adjudicative processing goals and other USCIS 70 The FY 2022 COLA assumption is based on President Biden’s ‘‘Letter to the Speaker of the House and the President of the Senate on the Alternative Plan for Pay Adjustments for Civilian Federal Employment’’, issued on August 27, 2021. See White House, ‘‘Letter to the Speaker of the House and the President of the Senate on the Alternative Plan for Pay Adjustments for Civilian Federal Employees’’ (Aug. 27, 2021), https:// www.whitehouse.gov/briefing-room/statementsreleases/2021/08/27/letter-to-the-speaker-of-thehouse-and-the-president-of-the-senate-on-thealternative-plan-for-pay-adjustments-for-civilianfederal-employees/. The FY 2023 COLA assumption is based on the available DHS Resource Allocation Plan (RAP) guidance as of March 29, 2021. 71 The SAMs are SAS-based workforce planning tools that estimate the staffing requirements necessary to adjudicate the projected volume of workload receipts (in other words, applications and petitions). PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 429 mission objectives, including administrative functions. This additional staffing requirement reflects the fact that it takes USCIS longer to adjudicate many workloads than was planned for in the FY 2016/2017 fee rule and that workload volumes and operational needs have grown. See section V.B. for information on how workload and completion rates affect staffing forecasts. Outside of the SAMs, USCIS has identified the need for another 2,035 new positions to accommodate the Asylum Processing interim final rule (IFR) and the proposed increase in the refugee admissions ceiling to 125,000. See section V.2.c. of this preamble for more information on how the Asylum Processing IFR, 87 FR 18078 (Mar. 29, 2022), and other rulemakings affect the fee review budget.72 • Realignment of 1,157 positions into the non-premium IEFA budget: $135.5 million. This realignment includes moving 1,127 positions from IEFA premium processing funding ($129.8 million) and 30 positions that were previously funded by appropriated funds for the E-Verify program ($5.7 million) to IEFA non-premium funding. The 1,127 positions were temporarily funded out of the premium processing budget in the FY 2021 OP due to financial constraints. Funding these positions with IEFA non-premium resources will allow USCIS to redirect premium processing funds to infrastructure improvements, including investments in USCIS’ digital capabilities, as well as backlog reduction efforts. USCIS is also realigning 30 positions from appropriated E-Verify program funding to IEFA non-premium funding to reflect the appropriate distribution of positions as identified in the Verification Division SAM. The SAM identified that the 30 positions are better attributed to the SAVE program, which is funded with IEFA non-premium funds. Therefore, USCIS accounts for these 30 positions as increased IEFA non-premium costs. 72 On March 29, 2022, DHS and DOJ issued an interim final rule, Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (Asylum Processing IFR), to improve and expedite processing of asylum claims made by noncitizens subject to expedited removal, ensuring that those who are eligible for protection are granted protection quickly, and those who are not are promptly removed. The rule authorizes asylum officers within USCIS to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening. See 87 FR 18078. E:\FR\FM\04JAP2.SGM 04JAP2 430 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules c. Related Rulemakings As stated elsewhere in this preamble with regard to the premium processing rule and the DACA NPRM, simultaneously with this rule, DHS is engaging in multiple rulemaking actions that are in various stages of development.73 See 86 FR 53736. DHS has considered and analyzed each of these other rules for peripheral, overlapping, or interrelated effects on this rule and has incorporated their effects, if any, into the supporting documentation, fee calculations, policies, and regulatory text for this proposed rule. DHS is proposing changes to the USCIS fee schedule in this rule that may be necessary to implement the rule titled ‘‘Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.’’ See 87 FR 18078 (Mar. 29, 2022) (Asylum Processing IFR). In the Asylum Processing IFR, DOJ and DHS amended the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. The changes are expected to improve the Departments’ ability to consider the protection claims of individuals encountered at or near the border and placed into expedited removal more promptly while ensuring fundamental fairness. DHS includes an estimated cost of the Asylum Processing IFR in our khammond on DSKJM1Z7X2PROD with PROPOSALS2 73 See Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, Agency Rule List-Spring 2022, Department of Homeland Security at https:// www.reginfo.gov/public/do/eAgenda Main?operation=OPERATION_GET_AGENCY_ RULE_LIST&currentPub=true&agencyCode=&show Stage=active&agencyCd=1600 (last accessed July 26, 2022). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 calculation of the proposed fees to recover full costs of USCIS implementation of the rule. Consistent with the reasoning described in the Asylum Processing IFR, DHS has used the primary estimate of annual costs in the model used to calculate the fees in this rule.74 Use of this figure results in costs of an average $425.9 million per fiscal year during the biennial period.75 This funding, which is reflected in the figures above, would support 2,035 new staff and associated GE. These expenses constitute approximately 31 percent of the total projected increase in budgetary requirements from FY 2021 to FY 2022/ 2023. DHS proposes to include the middle of the three Asylum Processing IFR estimates to plan for these additional staff and other resources. Implementation of this rulemaking is subject to resource constraints, including available IEFA non-premium funding and revenue. When USCIS does not have the resources that it needs to meet its goals, processing times increase and the case processing backlog grows. USCIS evaluates its budget and revenue for operational purposes annually, separate from the fee review process. For example, as mentioned above, the OP is a budget for the current year and is separate from the fee review budget estimates for future years. If actual revenue in FY 2022 or FY 2023 is higher than the estimates included in this 74 See 87 FR 18078 (Mar. 29, 2022), at 18206. acknowledges that, by using the middle of the range of costs, if actual costs are higher than that, then the USCIS fee schedule will be set at a level that is less than what will be required to recover all of the costs added by the Asylum Processing IFR, all other factors remaining the same. Estimated annual costs of the Asylum Processing IFR (mid-range estimate): FY 2022 total costs of $438.2 million plus FY 2023 total costs of $413.6 million equals $851.8. See 86 FR 46933– 46934. Average total costs of FY 2022/2023 equal $425.9 million. 75 DHS PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 proposal, then USCIS may dedicate additional staff and resources to the Asylum Processing IFR. If actual revenue is lower than the estimates in this proposal, then USCIS may dedicate fewer resources to implementing the Asylum Processing IFR. Relatedly, if the ultimate costs of implementing the Asylum Processing IFR exceed the estimates included in this proposal, this will strain the resources available to USCIS and processing backlogs may grow. Future fee review budget estimates will consider current and planned DHS and USCIS policies. If USCIS identifies alternative funding mechanisms or resources for the Asylum Processing IFR other than IEFA non-premium funds, the fee review budget projections may be reduced accordingly. Therefore, with the implementation realities of the Asylum Processing IFR and possible congressional appropriations to fund that rule, DHS may reduce USCIS’ estimated resource requirements for FY 2022/2023 and the fees necessary to generate those resources in a final fee rule. d. Cost Summary Table 5 below is a crosswalk summary of the FY 2021 OP to the FY 2022 and FY 2023 cost projections. It accounts for payroll and non-payroll for on-board and new staff, other resource requirements or adjustments, and the removal of costs associated with temporary programs. The FY 2022/2023 IEFA non-premium average annual budget requirement is estimated to be $5,150.7 million. This represents a $1,374.4 million, or 36.4 percent, increase over the FY 2021 IEFA nonpremium budget of $3,776.3 million. As previously discussed, the primary cost driver is payroll, which accounts for 76 percent of the increase. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 431 Table 5: Cosf Proiectfons· • .... · · .•·.· · . . .FY2022/2023FeeReview IEFA ..·. ·.·.·....·.........•.·. · .· · . . . .. ... ......: ·.. :· . Non~J.>rellihu.i C3ost .ProJection (in lVIJJUqris) \ ·•· .· ••• • . · .· $3,7:76.3 Totall\djuste<l Cost. PrdJ~ctio1l (Base) .. F'\:' . . 2021 lEFA . . Nqn~Premi#m . .. .. . · : $397.5 $315.7 $438.2 $82.2 $134.0 -$32.4 Pav Inflation and Promotions/Within-Grade Increases FY 2022 SAM Asylum Processing IFR Refugee Ceiling Increase Realignment of Positions Net Additional Costs •. .$5.,111.5 . .· TotalAdjusied·.FY202lJEFANon~Premium CostProjectioJi. Plus: Additional Pav Inflation and Promotions/Within-Grade Increases Plus: Net additional FY 2023 SAM Plus: Additional Net Additional Costs Totalt\dj11sted FY 2023\111:F.t\ Non-Pre.111ium Co*t .P~oj.ection <:.: FY 2022/2023 Avera2e Non-Premium Cost Projection 3. FY 2022/2023 Revenue Projections khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS’ revenue projections are informed by internal immigration benefit request receipt forecasts agreed to by the USCIS Volume Projection Committee (VPC). See section V.B.1.a of this preamble for more information on the VPC.76 USCIS also uses 12 months of historical actual fee-paying receipts to account for fee-waiver and feeexemption trends. To project USCIS IEFA non-premium revenue, USCIS develops application volume projections using all available data. USCIS then considers the fee-paying rate for each application and petition type to reflect the fact that not all applicants and petitioners pay fees due to fee waivers and fee exemptions. 76 USCIS has developed the VPC, a panel of agency experts, for systematic immigration benefit request filing volume forecasting for use in fee studies. USCIS has considered other business forecasting and structured forecasting approaches and models but has found that the VPC has a reliably accurate history of filing volume prediction. Two annual VPC meetings consider draft and final volume projections for several years ahead. One of three annual VPC meetings reviews the forecasts for the previous year, compares them to actual receipts, and discusses future improvements for greater accuracy. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 USCIS uses actual revenue collections from August 2019 to July 2020 as a basis for the fee-paying assumptions in the FY 2022/2023 revenue projections. See section V.B.1 of this preamble for a more detailed discussion of USCIS volume projections and fee-paying rates. USCIS’ current fee schedule is expected to yield $3.28 billion of average annual revenue during the FY 2022/2023 biennial period. This represents an increase of $0.80 billion, or 32 percent, from the FY 2016/2017 fee rule projection of $2.48 billion. See 81 FR 26911 (May 4, 2016). The projected revenue increase is based on the fees established by the FY 2016/ 2017 fee rule and more anticipated feepaying receipts. The FY 2016/2017 fee rule forecasted 5,870,989 total workload receipts and 5,140,415 fee-paying receipts. See 81 FR 26923–26924. However, the FY 2022/2023 fee review forecasts 7,601,200 total workload receipts and 6,510,442 fee-paying receipts. See section V.B.1. of this preamble for more information on the workload and fee-paying receipt forecasts. This represents a 29 percent increase to workload and 26 percent increase to fee-paying receipt volume PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 $132.7 $34.8 -$89.0 -< ·.·.. $$,190,0 $5,150.7 assumptions. Despite the increase in projected revenue above the FY 2016/ 2017 fee rule projection, this additional revenue is projected to be insufficient to recover USCIS’ increased costs, as discussed in the next section. 4. Projected Cost Revenue Differential USCIS identifies the difference between anticipated costs and revenue, assuming no changes in fees, to determine whether the existing fee schedule is sufficient to recover the projected full cost of providing immigration adjudication and naturalization services or whether a fee adjustment is necessary. Table 6 summarizes the projected cost and revenue differential. Non-Premium Revenue represents a revenue forecast using the current fees. Non-Premium Cost represents a budget forecast. In any fee review, if the revenue forecast is less than the budget forecast, then USCIS may propose new or increased fees to cover the budget-revenue shortfall. Otherwise, USCIS may reduce certain costs or services to cover the difference. Summary values may vary due to rounding. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.015</GPH> Plus: Plus: Plus: Plus: Plus: Plus: 432 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 6: IEFA Non-Premium Cost and Revenue (at FY 2021 levels) Comparison (Dollars in Millions) FY 2022/2023 FY2022 FY 2023 Point of Comparison Avera2e Non-Premium Revenue $3,280.3 $3,284.8 $3,282.5 with Current Fees Non-Premium Cost $5,111.5 $5,190.0 $5,150.7 Projection -$1,831.2 -$1,905.2 -$1,868.2 Difference khammond on DSKJM1Z7X2PROD with PROPOSALS2 1. Reduce projected costs; 2. Use carryover funds or revenue from the recovery of prior year obligations; or 3. Adjust fees with notice-and-comment rulemaking. Although USCIS continues to pursue efforts to increase agency efficiency, DHS believes that reducing the projected costs to equal the projected revenue would degrade USCIS operations funded by the IEFA; therefore, this is not a viable alternative to the proposed rule. The projected amount of funding necessary to meet USCIS’ operational requirements would exceed USCIS’ projected carryover in both FY 2022 and FY 2023, so USCIS is not able to rely on those funds to cover the difference between projected revenue and costs.77 Likewise, USCIS estimates that recovered revenue from prior year obligations will be 77 In the docket for this proposed rule, the supporting documentation has more information on carryover estimates. See the section titled IEFA Non-Premium Carryover Projections and Targets. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 insufficient. USCIS estimates that it may recover $91.9 million in FY 2022 and $94.2 million in FY 2023 for the nonpremium IEFA. Therefore, DHS proposes to increase revenue through the fee adjustments described in detail throughout this rule. To the extent USCIS is successful in measurably reducing completion rates or achieving other productivity gains, DHS will reevaluate the fee schedule in subsequent fee rules. B. Methodology When conducting a fee review, USCIS reviews its recent operating environment to determine the appropriate method to assign costs to immigration benefit requests, including biometric services. USCIS uses ABC, a business management tool that assigns resource costs to operational activities and then to products, services, or both. USCIS uses commercially available ABC software to create financial models. These models determine the cost of each major step toward processing immigration benefit requests and providing biometric services. This is the same methodology that USCIS used in the last five fee reviews, and it is the basis for the current fee structure. Following the FY 2016/2017 fee rule, USCIS identified several key methodology changes to improve the accuracy of its ABC model. For more information on these changes, please refer to the Changes Implemented in the FY 2022/2023 Fee Review section of the supporting documentation located in the docket of this rule. 1. Volume USCIS uses two types of volume data in the fee review: workload and feepaying volume. Workload volume is a projection of the total number of immigration benefit requests that USCIS will receive in a fiscal year. Fee-paying volume is a projection of the number of customers that will pay a fee when filing requests for immigration benefits. Not all customers pay a fee. Those customers to whom a fee exemption PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 applies or for whom USCIS grants a fee waiver are represented in the workload volume, but not the fee-paying volume. Customers who pay a fee fund the cost of processing requests for fee-waived or fee-exempt immigration benefit requests. Tables 7 and 8 compare the FY 2016/2017 fee rule volume forecasts to the volume forecasts for this rulemaking similar to previous fee rules. See e.g., 81 FR 26922–26924. Actual receipts from prior years inform those forecasts, but they may not be the only reason for differences. We explain some of the larger differences in the paragraphs that follow Tables 7 and 8. For information on actual receipts from previous fiscal years, see Appendix Table 13 in the supporting documentation. a. Workload Volume and Volume Projection Committee USCIS uses statistical modeling, immigration receipt data, and internal assessments of future developments (such as planned immigration policy initiatives) 78to develop workload volume projections. All relevant USCIS directorates and program offices are represented on the VPC. The VPC forecasts USCIS workload volume using statistical forecasts and subject-matter expertise from various directorates and program offices, including the service centers, National Benefits Center, RAIO, and regional, district, and field offices. Input from these offices helps refine the 78 DHS has considered the effects on this rule of all intervening legislation, related rulemakings, and policy changes that USCIS knows have occurred or will occur by the time the rule is signed. However, DHS does not and cannot assert that it knows and has considered every policy change that is planned or that may occur at all levels and agencies of the U.S. Government that may directly or indirectly affect this rule. Immigration policy changes frequently and USCIS must use the best cost data available at a point in time. Initiatives may come about without being incorporated in the proposed and final fees simply due to the time required for rule development and finalization. That necessary shortcoming is ameliorated by the CFO Act requirement that DHS address the effects of the constantly evolving immigration policy environment on its fees, costs, and services every 2 years, as DHS has done through its biennial fee reviews. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.016</GPH> Historically, and for the purpose of the fee review, USCIS reports costs and revenue as an average over the 2-year period. In Table 6, USCIS averages FY 2022 and FY 2023 costs and revenue to determine the projected amounts to be recovered through this rule. Based on current immigration benefit and biometric services fees and projected volumes, USCIS expects that if fees remained at their current levels, those fees would generate $3.28 billion in average annual revenue in FY 2022 and FY 2023. For the same period, the average annual cost of processing those immigration benefit requests and providing biometric services is $5.15 billion. This yields an average annual deficit of $1,868.2 million. In other words, USCIS expects the costs of fulfilling its operation requirements in FY 2022/2023 will exceed projected total revenue under its current fee structure. Because projected costs are higher than projected revenue, USCIS has several options to address the shortfall: Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 statistical volume projections. The VPC reviews short- and long-term volume trends. In most cases, time series models provide volume projections by form type. Time series models use historical receipt data to determine patterns (such as level, trend, and seasonality) or correlations with historical events to forecast receipts. When possible, other, more detailed models are also used to determine relationships within and between different benefit request types. At VPC meetings, the committee members deliberate on the provided forecast, consider alternatives, and agree to a forecast by group consensus. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Workload volume is a key element used to determine the USCIS resources needed to process benefit requests within established adjudicative processing goals. It is also the primary cost driver for assigning activity costs to immigration benefits and biometric services 79 in the USCIS ABC model. 79 As fully explained later in this preamble, DHS is removing biometric services as a separate fee in this rule, except as associated with an Application for Temporary Protected Status and certain other programs. Accordingly, N/A is included in the average annual FY 2022/2023 projected workload receipts and difference columns for biometrics in Table 7. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 433 Previous fee reviews also relied on VPC forecasts.80 DHS explains some of the larger differences in the paragraphs after Table 7. Values below are the average of 2 years, rounded to whole numbers. There may be slight differences because of rounding. BILLING CODE 9111–97–P 80 The FY 2010/2011 fee rule was the first to use VPC workload estimates in a fee review. See, USCIS, FY 2010/2011 Immigration and Examinations Fee Account Fee Review (June 11, 2010), available at https://www.regulations.gov/ document/USCIS-2009-0033-0007. All subsequent fee reviews and fee rules used VPC estimates. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 7: Workload Volume Comparison FY 201612017 Fee FY 202212023 Fee Review's Average Review's Average Immigration Benefit Request Annual Projected Annual Projected Workload Workload Receipts Receipts 1-90 Application to Replace 810,707 740,000 Permanent Resident Card 1-102 Application for Replacement/Initial 10,143 5,020 Nonimmigrant ArrivalDeparture Document 1-129 Petition for a 432,156 568,630 Nonimmigrant Worker Subtotal: For H-1 nonimmigrants NIA 430,000 For H-2A - Named NIA 4,020 Beneficiaries For H-2B - Named NIA 2,460 Beneficiaries For L nonimmigrants NIA 42,350 For O nonimmigrants NIA 27,300 Form I-129CW, or Form I129 for E & TN, H-3, P, Q, or NIA 40,850 R Classifications For H-2A - Unnamed NIA 17,650 Beneficiaries For H-2B - Unnamed NIA 4,000 Beneficiaries I-129F Petition for Alien 45,351 44,700 fiancé(e) 1-130 Petition for Alien Relative 911,349 880,900 1-131/1-13 lA Application for 256,622 354,416 Travel Document Subtotal 1-131 Application for Travel NIA 329,000 Document 1-13 1 Refugee Travel Document for an individual NIA 16,260 age 16 or older 1-131 Refugee Travel NIA 1,157 Document for a child under the age of 16 1-13 lA Application for NIA 8,000 Carrier Documentation 1-140 Immigrant Petition for 88,602 140,000 Alien Worker I-290B Notice of Appeal or 24,706 36,423 Motion 1-360 Petition for Amerasian, 26,428 43,028 Widow(er), or Special Immigrant VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Difference -70,707 -5,123 136,474 NIA NIA NIA NIA NIA NIA NIA NIA -651 -30,449 97 794 NIA NIA NIA NIA 51,398 11,717 16,600 EP04JA23.017</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 434 435 Table 7: Workload Volume Comparison FY 2016/2017 Fee FY 2022/2023 Fee Review's Average Review's Average Immigration Benefit Request Annual Projected Annual Projected Workload Workload Receipts Receipts 1-485 Application to Register Permanent Residence or Adjust 593,717 608,750 Status I-526/I-526E Immigrant Petition by Standalone/Regional Center 14,673 3,900 Investor8 1 1-539 Application to Extend/Change N onimmigrant 172,001 472,000 Status I-600/600A; I-800/800A Intercountry Adoption-Related 15,781 4,447 Petitions and Applications I-600A/I-600 Supplement 3 NIA 60 Request for Action on Approved Form I-600A/I-600 I-601A Provisional Unlawful 42,724 39,800 Presence Waiver 1-687 Application for Status as a 18 1 Temporary Resident 1-690 Application for Waiver of 21 21 Grounds oflnadmissibility 1-694 Notice of Appeal of 39 4 Decision 1-698 Application to Adjust Status from Temporary to 91 20 Permanent Resident (Under Section 245A of the INA) 1-751 Petition to Remove Conditions on Residence on 173,000 154,000 Permanent Resident Status I-765 Application for 747,825 1,666,500 Employment Authorization I-800A Supplement 3 Request for Action on Approved Form I1,585 933 800A 1-817 Application for Family 2,069 517 Unity Benefits 1-824 Application for Action on an Approved Application or 10,921 10,596 Petition 81 Combines both Forms I–526 and I–526E. USCIS revised Form I–526 and created Form I–526E as a result of the EB–5 Reform and Integrity Act of 2022. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 Difference 15,033 -10,773 299,999 -11,335 NIA -2,924 -17 0 -35 -71 -19,000 918,675 -653 -1,552 -325 EP04JA23.018</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 7: Workload Volume Comparison FY 201612017 Fee FY 202212023 Fee Review's Average Review's Average Immigration Benefit Request Annual Projected Annual Projected Workload Workload Receipts Receipts 1-829 Petition by Investor to 3,562 Remove Conditions on 3,250 Permanent Resident Status 1-881 Application for Suspension of Deportation or NIA 385 Special Rule Cancellation of Removal 1-910 Application for Civil 609 568 Surgeon Designation 1-929 Petition for Qualifying Family Member ofa U-1 575 1,150 Nonimmil!fant 1-956 Application For Regional 400 62 Center Designation I-956G Regional Center Annual 882 728 Statement N-300 Application to File 41 17 Declaration of Intention N-336 Request for a Hearing on 4,666 a Decision in Naturalization 6,140 Proceedings N-400 Application for 830,673 831,700 Naturalization N-470 Application to Preserve Residence for Naturalization 362 138 Purposes N-565 Application for Replacement 28,914 26,900 Naturalization/Citizenship Document N-600l600K Application for 69,723 33,900 Certificate of Citizenship Subtotal N-600 Application for NIA 30,000 Certificate of Citizenship N-600K Application for Citizenship and Issuance of NIA 3,900 Certificate Under Section 322 71,527 Inadmissibility Waiver Subtotal 86,210 1-191 Application for Relief Under Former Section 212(c) NIA 111 of the Immigration and Nationality Act (INA) VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Difference -312 NIA -41 575 -338 -154 -24 1,474 1,027 -224 -2,014 -35,823 NIA NIA 14,683 NIA EP04JA23.019</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 436 437 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C Differences between the two sets of workload estimates may be unrelated to any proposed fee or policy change. As mentioned earlier, these estimates are based on historical data, statistical analysis, and subject matter and policy input. For example, the Form I–90 forecast consists of two combined forecasts: renewals and replacements. Both Form I–90 forecasts use a time series model that allows for seasonality. As another example, the VPC establishes two Form N–400 forecasts: civilian and military. The statistical model that the VPC considers for the civilian Form N–400 forecast leverages survival analysis to include individual microdata and reflects the differences in application patterns of previous VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 naturalization applicants. USCIS’ statistical model uses multiple factors to determine the likelihood of naturalization of members of the pool of potential applicants, including the length of time an individual has been a lawful permanent resident (LPR), as well as an individual’s country of origin, visa type, and age. In contrast, the military naturalization forecast is a time series model that does not use survival analysis. USCIS evaluates a variety of models and methods to determine the best forecast for each workload based on the available data and historical trends. Some differences in workload are the result of proposed changes, in whole or in part. Part of the large differences for PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 Difference NIA NIA NIA NIA NIA 70,489 7,389 891 NIA NIA 1,730,211 NIA -1,298,043 Forms I–131 and I–765 relate to a proposed change to Form I–485 fees and interim benefits. See section VIII.H.1 for more information. In the FY 2016/2017 fee review, USCIS determined the workload volume for Forms I–765 and I–131 that are not associated with Forms I–485 (in other words, interim benefits). See 81 FR 26918 and 73300. The FY 2016/2017 column in Table 7 represents only the standalone workload for Forms I–131 and I–765 because all the interim benefit workloads bundled with Form I– 485 are counted in the row for Form I– 485. The FY 2022/2023 column of Table 7 includes workloads for Forms I–131 and I–765 that are either standalone or interim benefits concurrently filed with Form I–485. Other factors contributed to E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.020</GPH> Table 7: Workload Volume Comparison FY 2016/2017 Fee FY 2022/2023 Fee Review's Average Review's Average Immigration Benefit Request Annual Projected Annual Projected Workload Workload Receipts Receipts 1-192 Application for Advance Permission to Enter NIA 41,481 as Nonimmigrant 1-193 Application for Waiver NIA 6,815 of Passport and/or Visa 1-212 Application for Permission to Reapply for NIA 10,693 Admission into the U.S. After Deportation or Removal 1-601 Application for Waiver NIA 19,750 of Grounds of Inadmissibility 1-612 Application for Waiver of the Foreign Residence Requirement (Under Section NIA 7,360 212(e) of the INA, as Amended) USCIS Immigrant Fee 472,511 543,000 G-1041 Genealogy Index Search 3,605 10,994 Request G-1041A Genealogy Records 2,410 3,301 Request Request for Certificate of NonNIA 4,103 Existence H-lB Registration Process NIA 273,990 Subtotal 5,870,989 7,601,200 NIA Biometric Services 3,028,254 Total 8,899,243 7,601,200 438 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules the differences, such as historical trends. There is no biometric services workload forecast for FY 2022/2023 (apart from the TPS workload, as discussed in section E.2 below) because of the proposal to incorporate the cost of providing biometric services in the underlying form fees, as explained in section VIII.E of this preamble. khammond on DSKJM1Z7X2PROD with PROPOSALS2 A comparison of the two sets of forecasts, in isolation, may not illustrate USCIS trends in the several years between fee reviews. For example, when USCIS estimated workload for the FY 2016/2017 fee rule, it had been several years since receipts for Form I–140 were over 100,000. As such, the receipt estimate was reasonable at the time and consistent with receipts from FY 2009 to 2014. Since FY 2015, Form I–140 receipts are routinely over 100,000. There could be a number of reasons for this change, such as availability of employment-based visas or increased demand following economic or policy changes in the intervening years. As another example, filing trends for Form I–539 have changed significantly since the FY 2016/2017 fee rule. The forecast for FY 2022/2023 is based on Student and Exchange Visitor Information System data, which included 225,000 Form I–539 filings annually beginning in January 2021. DHS expects the vast majority of this workload to be optional practical training (OPT) and science, technology, engineering, and VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 mathematics optional practical training (STEM OPT) extensions. As yet another example, the adoption workload has been trending downward for many years. Comparing only two data points in Table 7 does not show that the difference is just the continuation of a gradual trend over many years. Finally, Table 7 does not represent the entirety of USCIS workload. It excludes some workloads without fees. For example, asylum and refugee workloads (credible fear, reasonable fear, Forms I–589 and I– 590) and other humanitarian workloads (for example, Forms I–914 and I–918) are excluded from the tables 7 and 8. These omitted workloads are part of the ABC model so that USCIS can estimate their total cost. However, only feepaying volumes generate revenue for USCIS. See section III.C, Full Cost Recovery, of this preamble for more information. As explained later in this preamble, the proposed fees exclude temporary or uncertain workloads, such as TPS and DACA. See sections V.C. and V.D of this preamble. changes, legislation, and executive orders are frequently some of the factors that affect fee-paying percentages, so older historical data to calculate the percentages can be counter-productive. In this proposed rule, USCIS therefore referenced revenue and receipts data from August 2019 to July 2020 for feepaying figures. Total revenue for an immigration benefit request is divided by its fee to determine the historical number of fee-paying immigration benefit requests. Fee-paying receipts are compared to the total number of receipts (workload volume) to determine a feepaying percentage for each immigration benefit request. When appropriate, projected fee-paying volume is adjusted to reflect filing trends and anticipated policy changes. These projections include the effects of changes that DHS is proposing in this rule.82 DHS explains some of the larger differences in the paragraphs after Table 8. Values below are the average of two years, rounded to whole numbers. There may be slight differences because of rounding. b. Fee-Paying Volume BILLING CODE 9111–97–P USCIS uses historical revenue and receipt data to determine the number of individuals who paid a fee for each immigration or naturalization benefit request. Fee-paying percentages by form are usually steady year over year. USCIS uses monthly fee-paying percentages in its forecasts to capture seasonality during the year. Additionally, policy 82 Table 8 compares the projections from the FY 2016/2017 fee rule with the projections of the FY 2022/2023 fee review. As discussed, these projections are based on a number of factors, including historical data of actual receipts. Although the FY 2016/2017 Fee Review differs to some degree from the actual receipts since the 2016 fee rule, USCIS compares fee projections against each other, rather than against actual receipts, to ensure consistency. PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 439 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 8: Fee-Paying Projection Comparison by Fee Review Immigration Benefit Request khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-90 Application to Replace Permanent Resident Card 1-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 1-129 Petition for a Nonimmigrant Worker Subtotal For H-1 For H-2A - Named Beneficiaries For H-2B - Named Beneficiaries ForL ForO Form I-129CW, or Form 1-129 for E or TN H-3, P, 0 or R Classifications H-2A - Unnamed Beneficiaries H-2B - Unnamed Beneficiaries I-129F Petition for Alien fiancé(e) 1-130 Petition for Alien Relative VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00039 Fmt 4701 FY 2022/2023 Fee Review's Average Annual FeePaying Projection Difference 718,163 648,758 -69,405 9,499 4,623 -4,876 427,778 568,630 140,852 NIA NIA NIA NIA NIA 430,000 4,020 2,460 42,350 27,300 NIA NIA NIA NIA NIA NIA 40,850 NIA NIA NIA 17,650 4,000 41,432 857,514 NIA NIA 39,277 907,512 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 2,155 -49,999 EP04JA23.021</GPH> FY 2016/2017 Fee Review's Average Annual FeePaying Projection 440 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 8: Fee-Paying Projection Comparison by Fee Review khammond on DSKJM1Z7X2PROD with PROPOSALS2 Immigration Benefit Request I-13 III-13 IA Application for Travel Document Subtotal I-13 I Application for Travel Document I-131 Refugee Travel Document for an individual age 16 or older I-131 Refugee Travel Document for a child under the age of 16 I-13 lA Application for Carrier Documentation I-140 Immigrant Petition for Alien Worker I-290B Notice of Appeal or Motion I-360 Petition for Amerasian, Widow(er), or Soecial Immigrant I-485 Application to Register Permanent Residence or Adiust Status I-526II-526E Immigrant Petition by Standalone/Regional Center Investor83 I-539 Application to Extend/Change Nonimmigrant Status I-600l600A; I-800l800A Orphan Petitions and Applications I-600A/l-600 Supplement 3 Request for Action on Approved Form I-600A/l-600 l-601A Provisional Unlawful Presence Waiver I-687 Application for Status as a Temoorarv Resident I-690 Application for Waiver of Grounds of Inadmissibilitv I-694 Notice of Appeal of Decision I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) I-751 Petition to Remove Conditions on Residence I-765 Application for Employment Authorization FY 202212023 Fee Review's Average Annual FeePaying Proiection 194,461 279,078 84,617 NIA 253,662 NIA NIA 16,260 NIA NIA 1,157 NIA NIA 8,000 NIA 88,602 140,000 51,398 20,955 33,803 12,848 8,961 4,107 -4,854 473,336 572,497 99,161 14,673 3,900 -10,773 171,616 462,380 290,764 5,811 2,438 -3,373 NIA 29 NIA 42,724 39,800 -2,924 0 I 1 17 21 4 39 4 -35 91 20 -71 162,533 130,274 -32,260 397,954 1,084,740 686,786 83 Combines both Forms I–526 and I–526E. USCIS revised Form I–526 and created Form I–526E as a result of the EB–5 Reform and Integrity Act of 2022. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00040 Fmt 4701 Difference Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.022</GPH> FY 201612017 Fee Review's Average Annual FeePaying Projection 441 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 8: Fee-Paying Projection Comparison by Fee Review khammond on DSKJM1Z7X2PROD with PROPOSALS2 Immigration Benefit Request I-800A Supplement 3 Request for Action on Annroved Form I-800A 1-817 Application for Family Unity Benefits 1-824 Application for Action on an Approved Anolication or Petition 1-829 Petition by Investor to Remove Conditions on Permanent Resident Status 1-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal 1-910 Application for Civil Surgeon Designation 1-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 1-956 Application For Regional Center Designation I-956G Regional Center Annual Statement N-300 Application to File Declaration of Intention N-336 Request for a Hearing on a Decision in Naturalization Proceedings N-400 Application for Naturalization (including reduced fee) N-470 Application to Preserve Residence for Naturalization purposes N-565 Application for Replacement Naturalization/Citizenship Document N-600l600K Naturalization Certificate Application Subtotal N-600 Application for Certificate of Citizenship N-600K Application for Citizenship and Issuance of Certificate Under Section 322 Inadmissibility Waiver Subtotal 1-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) 1-192 Application for Advance Permission to Enter as Nonimmigrant VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00041 Fmt 4701 FY 202212023 Fee Review's Average Annual FeePaying Proiection Difference 746 448 -298 1,988 505 -1,483 10,828 10,292 -536 3,562 3,250 -312 NIA 385 NIA 609 568 -41 257 1,027 770 400 62 -338 882 728 -154 36 17 -19 3,593 5,137 1,544 631,655 693,820 62,165 360 138 -222 23,491 21,508 -1,983 46,870 18,936 -27,934 NIA 16,041 NIA NIA 2,895 NIA 41,902 44,211 2,309 NIA 111 NIA NIA 10,954 NIA Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.023</GPH> FY 201612017 Fee Review's Average Annual FeePaying Proiection 442 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 8: Fee-Paying Projection Comparison by Fee Review Immigration Benefit Request 1-193 Application for Waiver of Passport and/or Visa 1-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 1-601 Application for Waiver of Grounds of Inadmissibility 1-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) USC IS Immigrant Fee G-1041 Genealogy Index Search Request G-1041A Genealogy Records Request Request for Certificate of Non-Existence H-lB Registration Process Subtotal Biometric Services Grand Totals khammond on DSKJM1Z7X2PROD with PROPOSALS2 All fee-paying workload is a subset of total workload, as discussed in the previous section. As such, changes to workload may affect the fee-paying projections. As explained above, USCIS estimates fee-paying receipts by applying a percentage of fee-paying receipts to the workload forecast. For a general explanation on how fee-paying volumes affect fees, see section VI, Fee Waivers, of this preamble. Some differences in fee-paying projections are the result of proposed changes, in whole or in part. For example, part of the large differences between the past and current projections for Forms I–131 and I–765 relate to the proposed change to Form VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 FY 2022/2023 Fee Review's Average Annual FeePaying Projection NIA 6,772 NIA NIA 7,260 NIA NIA 18,560 NIA NIA 554 NIA 472,511 3,605 2,410 543,000 10,994 3,301 4,103 273,990 6,510,467 70,489 7,389 891 1,580,760 NIA NIA 6,510,467 -1,017,879 NIA NIA 4,929,707 2,598,639 7,528,346 I–485 fees and interim benefits. See section VIII.H.1 for more information. In the FY 2016/2017 fee review, USCIS determined the fee-paying volume for Forms I–765 and I–131 that are not associated with Forms I–485. See 81 FR 26918 and 73300. The FY 2016/2017 column in Table 8 represents the forecasted standalone fee-paying receipts only for Forms I–131 and I–765 because all interim benefit fee-paying receipts bundled with Form I–485 are counted in the row for Form I–485. See 81 FR 26919 and 26924. The FY 2022/ 2023 column of Table 8 includes feepaying receipts for Forms I–131 and I– 765 that are either standalone or interim PO 00000 Frm 00042 Fmt 4701 Difference Sfmt 4702 NIA NIA benefits concurrently filed with Form I– 485. Other factors contributed to the differences, such as historical trends. There is no workload forecast for biometric services for FY 2022/2023 because of the proposed elimination of the discrete biometric services fee for most benefit requestors, as explained in section VIII.E of this preamble. Table 9 is a comparison of fee-paying percentages in the FY 2016/2017 fee rule and this proposed rule. It divides the fee-paying volumes in Table 8 by the workload volumes in Table 7 to calculate the fee-paying percentages. There may be slight differences because of rounding. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.024</GPH> FY 2016/2017 Fee Review's Average Annual FeePaying Projection 443 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules -1% 1-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 94% 92% -2% 1-129 Petition for a Nonimmigrant Worker Subtotal 99% 100% 1% ForH-1 For H-2A - Named Beneficiaries For H-2B - Named Beneficiaries ForL ForO NIA NIA NIA NIA NIA 100% 100% 100% 100% 100% NIA NIA NIA NIA NIA Form l-129CW, or Form 1-129 forE or TN, H-3, P, Q, or R Classifications NIA 100% NIA H-2A- Unnamed Beneficiaries H-2B - Unnamed Beneficiaries l-129F Petition for Alien fiancé(e) 1-130 Petition for Alien Relative NIA NIA NIA NIA 87% 100% 100% 100% 93% 97% 76% 79% 3% 1-131/1-13 lA Application for Travel Document Subtotal khammond on DSKJM1Z7X2PROD with PROPOSALS2 Difference VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 6% 3% EP04JA23.025</GPH> Table 9: Fee-Paying Percentage Comparison by Fee Review FY FY 201612017 202212023 Fee Review's Fee Review's Immigration Benefit Request Fee-Paying Fee-Paying Percentage Percentage 1-90 Application to Replace Permanent Resident 89% 88% Card 444 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Difference NIA 1-13 1 Refugee Travel Document for an individual age 16 or older NIA 100% NIA 1-131 Refugee Travel Document for a child under the age of 16 NIA 100% NIA 1-13 lA Application for Carrier Documentation NIA 100% NIA 1-140 Immigrant Petition for Alien Worker 1-290B Notice of Appeal or Motion 100% 85% 100% 93% 0% 8% 1-360 Petition for Amerasian, Widow(er), or Special Immigrant 34% 10% -24% 1-485 Application to Register Permanent Residence or Adjust Status 80% 94% 14% I-526/l-526E Immigrant Petition by Standalone/Regional Center Investor 100% 100% 0% 1-539 Application to Extend/Change Nonimmigrant Status 100% 98% -2% I-600l600A; I-800l800A Orphan Petitions and Applications 37% 55% 18% I-600A/l-600 Supplement 3 Request for Action on Approved Form I-600A/l-600 NIA 48% NIA I-601A Provisional Unlawful Presence Waiver 100% 100% 0% 1-687 Application for Status as a Temporary Resident NIA 100% NIA 1-690 Application for Waiver of Grounds of Inadmissibility 81% 100% 19% 1-694 Notice of Appeal of Decision 100% 100% 0% 1-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) 100% 100% 0% 94% 85% -9% 53% 65% 12% 47% 48% 1% 96% 98% 2% 1-751 Petition to Remove Conditions on Residence I-765 Application for Employment Authorization I-800A Supplement 3 Request for Action on Approved Form I-800A 1-817 Application for Family Unity Benefits VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.026</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 9: Fee-Paying Percentage Comparison by Fee Review FY FY 201612017 202212023 Fee Review's Immigration Benefit Request Fee Review's Fee-Paying Fee-Paying Percentage Percenta2e 1-131 Application for Travel Document NIA 77% 445 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Difference -2% 1-829 Petition by Investor to Remove Conditions on Permanent Resident Status 100% 100% 0% 1-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal NIA 100% NIA 1-910 Application for Civil Surgeon Designation 100% 100% 0% 1-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 45% 89% 44% 1-956 Application For Regional Center Designation 100% 100% 0% I-956G Regional Center Annual Statement 100% 100% 0% N-300 Application to File Declaration of Intention 88% 100% 12% N-336 Request for a Hearing on a Decision in Naturalization Proceedings 77% 84% 7% N-400 Application for Naturalization (including reduced fee) 76% 83% 7% N-470 Application to Preserve Residence for Naturalization purposes 99% 100% 1% N-565 Application for Replacement Naturalization/Citizenship Document 81% 80% -1% N-600/600K Naturalization Certificate Application Subtotal 67% 56% -11% N-600 Application for Certificate of Citizenship NIA 53% NIA N-600K Application for Citizenship and Issuance of Certificate Under Section 322 NIA 74% NIA Inadmissibility Waiver Subtotal 59% 51% -8% 1-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) NIA 100% NIA 1-192 Application for Advance Permission to Enter as Nonimmigrant NIA 26% NIA 1-193 Application for Waiver of Passport and/or Visa NIA 99% NIA VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.027</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 9: Fee-Paying Percentage Comparison by Fee Review FY FY 2016/2017 2022/2023 Fee Review's Immigration Benefit Request Fee Review's Fee-Paying Fee-Paying Percentage Percenta2e 1-824 Application for Action on an Approved 99% 97% Application or Petition 446 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 1-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal NIA 68% NIA 1-601 Application for Waiver of Grounds of Inadmissibility NIA 94% NIA 1-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) NIA 8% NIA 100% 100% 100% 100% 100% 100% 100% 100% 86% 0% 0% 0% USC IS Immigrant Fee G-1041 Genealogy Index Search Request G-1041A Genealogy Records Request Request for Certificate of Non-Existence H-lB Registration Process Subtotal Biometric Services Grand Totals khammond on DSKJM1Z7X2PROD with PROPOSALS2 Difference 2. Completion Rates USCIS completion rates are the average hours per adjudication of an immigration benefit request. They identify the adjudicative time required to complete (render a decision on) specific immigration benefit requests. The completion rate for each benefit type represents an average. Completion rates reflect what is termed ‘‘touch time,’’ or the time an employee with adjudicative responsibilities actually handles the case. This does not reflect ‘‘queue time,’’ or time spent waiting, for example, for additional evidence or supervisory approval. Completion rates do not reflect the total processing time applicants, petitioners, and requestors can expect to wait for a decision on their case after USCIS accepts it. USCIS requires most employees who adjudicate immigration benefit requests to report adjudication hours and case completions by benefit type. The reported hours and counts are aggregate information that does not allow USCIS to estimate effects of individual policy changes. USCIS calculates completion rates by dividing the adjudication hours by the number of completions for the same period. As such, completion rates VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 NIA NIA 84% 86% 85% represent an average hours per completion. In addition to using these data to determine fees, completion rates help determine appropriate staffing allocations to handle projected workload. The USCIS Office of Performance and Quality (OPQ), field offices, regional management, and service centers continually review the data to capture updates or implementation of new processes and ensure continued accuracy. The continual availability of the information enables USCIS to update cost information for each fee review. The completion rates may change between fee reviews based on more recently reported hours and counts. Possible reasons for completion rate changes include changes to a form, policy changes, and more recently, effects of the pandemic. USCIS relied on completion rates before the pandemic to remove this effect from the fee review. When employees who adjudicate immigration benefit requests do not report adjudication hours, USCIS uses subject-matter expertise to estimate completion rates. USCIS does not list completion rates for the following immigration benefit PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 NIA NIA 2% NIA NIA 86% 1% requests, forms, or other services, due to the special nature of their processing, as explained below: • I–131A, Application for Carrier Documentation. In this proposed rule, DHS anticipates that the Department of State (DOS) Bureau of Consular Affairs, located outside of the United States, would process all Form I–131A workload. Thus, USCIS projects it will have no hours or workload for Form I– 131A in FY 2022/2023 and does not calculate a completion rate for this proposed rule. • H–1B Registration Process. Before a petitioner is eligible to file an H–1B capsubject petition (including those eligible for the 20,000-petition advanced degree exemption), the prospective petitioner must register electronically through the USCIS website and have their registration selected. See 84 FR 888 (Jan. 31, 2019). USCIS does not adjudicate registrations received through the H–1B registration process because the process is automated. • USCIS Immigrant Fee. USCIS does not adjudicate applications for an immigrant visa. Rather, individuals located outside of the United States apply with a DOS consular officer for an E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.028</GPH> Table 9: Fee-Paying Percentage Comparison by Fee Review FY FY 201612017 202212023 Fee Review's Immigration Benefit Request Fee Review's Fee-Paying Fee-Paying Percentage Percenta2e Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 immigrant visa. If DOS issues the immigrant visa, the individual may apply with a Customs and Border Protection (CBP) officer at a port of entry for admission to the United States as an immigrant. This fee represents USCIS’ costs to create and maintain files and to issue permanent resident cards (also known as ‘‘Green Cards’’) to individuals who go through this process. See 8 CFR 103.7(b)(1)(i)(D) (Oct. 1, 2020), proposed 8 CFR 106.2(c)(3). • TPS. DHS proposes not to rely on TPS fee revenue for recovering USCIS’ operational expenses, consistent with VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 previous fee rules. See 81 FR 73312– 73313. TPS designations may be terminated under current law or may decrease due to a reduction in the eligible population. Termination of the program, in whole or in part, after the fees are set would result in unrealized revenue and a commensurate budgetary shortfall. After the fee schedule is effective, fees cannot be adjusted until the next fee schedule notice-andcomment rulemaking. Thus, temporary programs subject to termination based on changed circumstances are generally not included in the fee-setting model. Therefore, USCIS excludes the PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 447 completion rate, as well as workload volumes and marginal costs, for Form I– 821, Application for Temporary Protected Status, and associated Form I– 765 filings from discussion in this proposed rule. DHS cannot increase the $50 initial statutory registration fee permitted under INA sec. 244(c)(1)(B) or establish a re-registration fee for TPS. Therefore, to recover some of the costs of administering the TPS program, USCIS will continue to charge the biometric services fee, where required, and the fee for an employment authorization document (EAD), as permitted under 8 U.S.C. 1254b. E:\FR\FM\04JAP2.SGM 04JAP2 448 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 84 See USCIS, Questions and Answers: Credible Fear Screening available at https://www.uscis.gov/ humanitarian/refugees-and-asylum/asylum/ VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 questions-and-answers-credible-fear-screening (last updated July 15, 2015). 85 USCIS does not track distinct refugee travel document completion rates, nor does it track rates PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 by applicant age group. The completion rate here is for a re-entry permit, a similar travel document. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.029</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 10: Completion Rates per Benefit Request (Hours/Completions) Immi2ration Benefit Request Service-Wide Completion Rate 84 Credible Fear 3.68 G-1041 Genealogy Index Search Request 0.42 G-1041A Genealogy Records Request 1.00 1.07 Request for Certificate of Non-Existence H-lB Registration Process NIA 1-90 Application to Replace Permanent Resident Card 0.15 1-102 Application for Replacement/Initial Nonimmigrant 0.84 Arrival-Departure Document 1.53 1-129 H-lB Nonimmigrant Worker or H-lBl Free Trade Nonimmigrant Worker 2.36 1-129 H-2A - Named Beneficiaries 1-129 H-2B - Named Beneficiaries 2.33 1-129 L Nonimmigrant Worker 3.57 2.32 1-129 0 Nonimmigrant Worker I-129CW, Petition or Application for E, H-3, P, Q, R, or 1.87 TN Nonimmigrant Worker 0.70 1-129 H-2A - Unnamed Beneficiaries 1-129 H-2B - Unnamed Beneficiaries 0.89 I-129F Petition for Alien fiancé(e) 0.91 1-130 Petition for Alien Relative 1.11 1-131 Application for Travel Document 0.29 85 1-131 Refugee Travel Document 0.28 1-13 lA Application for Carrier Documentation NIA 1-140 Immigrant Petition for Alien Worker 1.41 1-191 Application for Relief Under Former Section 212(c) 1.96 of the Immigration and Nationality Act (INA) 1-192 Application for Advance Permission to Enter as 1.46 Nonimmigrant 0.52 1-193 Application for Waiver of Passport and/or Visa 1-212 Application for Permission to Reapply for 1.43 Admission into the U.S. After Deportation or Removal I-290B Notice of Appeal or Motion 1.50 1-360 Petition for Amerasian, Widow(er), or Special 2.54 Immigrant 1-485 Application to Register Permanent Residence or 2.08 Adiust Status I-526/I-526E Immigrant Petition by Standalone/Regional 20.69 Center Investor 449 Table 10: Completion Rates per Benefit Request (Hours/Completions) Immigration Benefit Request Service-Wide Completion Rate 0.70 1-539 Application to Extend/Change Nonimmigrant Status 5.02 1-589 Application for Asylum and for Withholding of Removal T-590 Registration for Classification as Refugee 1.29 I-600/600A; I-800/800A Orphan Petitions and 2.14 Applications I-600A/I-600 Supplement 3 Request for Action on 2.03 Approved Form I-600A/I-600 1-601 Application for Waiver of Grounds of 2.06 Inadmissibilitv T-601 A Provisional Unlawful Presence Waiver 2.76 1-612 Application for Waiver of the Foreign Residence 0.69 Requirement (Under Section 212(e) of the INA, as Amended) 1-687 Application for Status as a Temporary Resident 3.01 Under Section 245A of the INA 2.04 1-690 Application for Waiver of Grounds of Inadmissibilitv 2.62 1-694 Notice of Anneal of Decision 1-698 Application to Adjust Status from Temporary to 3.91 Permanent Resident (Under Section 245A of the INA) 1-730 Refugee/Asylee Relative Petition (and Travel 1.06 Eligibility) 1.54 1-751 Petition to Remove Conditions on Residence I-765 Application for Employment Authorization 0.22 I-800A Supplement 3 Request for Action on Approved 2.03 Form T-800A 1-817 Application for Family Unity Benefits 0.88 1-824 Application for Action on an Approved Application 0.88 or Petition 1-829 Petition by Investor to Remove Conditions on 15.86 Permanent Resident Status 1-881 Application for Suspension of Deportation or 2.00 Special Rule Cancellation of Removal 1-910 Application for Civil Surgeon Designation 1.37 1-914 T Nonimmigrant Status 4.88 1-918 U Nonimmigrant Status 4.50 1-929 Petition for Qualifying Family Member of a U-1 1.69 Nonimmigrant 108.50 1-956 Application For Regional Center Designation 4.60 I-956G Regional Center Annual Statement 1.10 N-300 Application to File Declaration oflntention N-336 Request for a Hearing on a Decision in 3.01 Naturalization Proceedings (Under Section 336 of the INA) 1.51 N-400 Aoolication for Naturalization VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.030</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 450 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 10: Completion Rates per Benefit Request (Hours/Completions) Immigration Benefit Request Service-Wide Completion Rate N-470 Application to Preserve Residence for 4.01 Naturalization purposes N-565 Application for Replacement 0.51 Naturalization/Citizenship Document 1.16 N-600 Application for Certificate of Citizenship 1.16 N-600K Application for Citizenship and Issuance of Certificate Under Section 322 Reasonable Fear86 5.30 USCIS Immigrant Fee NIA khammond on DSKJM1Z7X2PROD with PROPOSALS2 3. Assessing Proposed Fees Historically, as a matter of policy, DHS has used its discretion to limit fee increases for certain immigration benefit request fees that would be overly burdensome on applicants, petitioners, and requestors if set at ABC model output levels. Previous proposed IEFA fee schedules referred to limited fee increases as ‘‘low volume reallocation’’ or ‘‘cost reallocation.’’ 87 Despite the two separate phrases, the calculation for both is the same. In this proposed rule, DHS will use the phrase ‘‘cost reallocation.’’ In the FY 2016/2017 fee rule, USCIS calculated an 8 percent limited fee increase for certain immigration benefit request fees.88 For this proposed rule, USCIS calculated a limited fee increase of approximately 18 percent using a similar methodology as the FY 2016/2017 fee rule.89 The 18 percent is approximately the difference between the average current fee compared to the average ABC model output. The sum of the current fees, 86 See USCIS, Questions and Answers: Reasonable Fear Screening, available at https:// www.uscis.gov/humanitarian/refugees-and-asylum/ asylum/questions-and-answers-reasonable-fearscreenings (last updated June 18, 2013). 87 The FY 2016/2017 proposed fee schedule used both phrases. See 81 FR 26915. The FY 2010/2011 and FY 2008/2009 proposed fee schedules used the phrase ‘‘low volume reallocation.’’ See 75 FR 33461 and 72 FR 4910, respectively. 88 The 8-percent increase was the percentage difference between the current fees and the model output before reallocation, weighted by fee-paying volume. See 81 FR 73296. The model output is a projected fee-paying unit cost from the ABC model. It is projected total cost divided by projected feepaying receipts. While each fee review may calculate a different percentage, the formula for the calculation remains the same. 89 In the docket for this proposed rule, the supporting documentation has more information on the proposed cost reallocation and the ABC model output. See the Cost Reallocation column of Appendix Table 4: Proposed Fees by Immigration Benefit Request. The docket also includes documentation for the fee schedule. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 multiplied by the projected FY 2022/ 2023 fee-paying receipts for each immigration benefit type, divided by the total fee-paying receipts, is $518. The model output is the total cost determined by the ABC model by feepaying receipts to determine a feepaying unit cost. The sum of the ABC model outputs, multiplied by the projected FY 2022/2023 receipts for each immigration benefit type, divided by the fee-paying receipts, is $614. There is a $96 or approximate 18 percent difference between the two averages. These averages exclude fees that do not receive cost reallocation, such as the separate biometric services fee and the proposed genealogy fees. When DHS proposes to maintain the current fee, it affects this calculation. In those cases, the formula multiplies the current fee by fee-paying receipts instead of using the model output. Except for Form I–90 filed online, the estimated volumes are low for the fees that DHS proposes to maintain at the current level. As such, if DHS did not propose to maintain those current fees, the result would round to 17 percent. Thus, DHS has determined that 18 percent is a reasonable figure at which to cap those requests for which USCIS proposes to limit fee increases using the cost reallocation calculation method. Accordingly, in consideration of the need to balance the beneficiary-pays and ability-to-pay principles and to achieve important policy outcomes (for example, promoting naturalization, funding asylum and other humanitarian programs, and making immigration benefits affordable and accessible), DHS proposes that the increase in the following immigration benefit request fees is limited to 18 percent for the current fees: • Form I–192, Application for Advance Permission to Enter as Nonimmigrant. • Form I–193, Application for Waiver of Passport and/or Visa. PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 • Form I–290B, Notice of Appeal or Motion. • Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant. • Form I–600, Petition to Classify Orphan as an Immediate Relative. • Form I–600A, Application for Advance Processing of an Orphan Petition. • Form I–600A/I–600, Supplement 3, Request for Action on Approved Form I–600A/I–600.90 • Form I–612, Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended). • Form I–800, Petition to Classify Convention Adoptee as an Immediate Relative. • Form I–800A, Application for Determination of Suitability to Adopt a Child from a Convention Country. • Form I–800A, Supplement 3, Request for Action on Approved Form I–800A. • Form I–881, Application for Suspension of Deportation or Special Rule Cancellation of Removal. • Form I–929, Petition for Qualifying Family Member of a U–1 Nonimmigrant. • Form N–300, Application to File Declaration of Intention. • Form N–336, Request for Hearing on a Decision in Naturalization Proceedings. • Form N–400, Application for Naturalization. • Form N–470, Application to Preserve Residence for Naturalization Purposes. • Form N–600, Application for Certificate of Citizenship. • Form N–600K, Application for Citizenship and Issuance of Certificate Under Section 322. The proposed increase of approximately 18 percent may vary slightly due to rounding. DHS rounds 90 DHS explains the purpose of this proposed form in section VIII.N.4 of this preamble. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.031</GPH> BILLING CODE 9111–97–C khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules all IEFA non-premium fees to the nearest $5 increment. For many of these form types, DHS and DOJ have a long history of special consideration for these immigration and naturalization fees. For example, DOJ did not change fees for Forms I–290B, I–360, N–300, N–336, N–470 in the first IEFA fee rule that used ABC modeling. See 63 FR 1775 (Jan. 12, 1998) at 1784 (proposed rule); 63 FR 43604 (final rule). DOJ maintained the prior fee for these forms until it could capture sufficient information for these low (less than 10,000 per year) volume forms to change the fees in a separate rulemaking. See 64 FR 69883 (Dec. 15, 1999). DHS has a history of setting adoption-related fees lower than the amount suggested by the fee-setting methodology, as discussed in section VIII.N.1 of this proposed rule. DHS also has a long history of special consideration for naturalization fees, as discussed in section VIII.F. of this preamble. To allow the proposed fee schedule to recover full cost, DHS proposes that other fees be increased to offset the difference between the projected cost of adjudicating these benefit requests and the revenue generated by the 18 percent limited fee increase. Similarly, DHS proposes that other fees increase to offset a projected increase in workloads that are exempt from paying fees or that are capped at a fee less than what the ABC model indicates. In this proposed rule, DHS refers to the process of recovering full cost for workloads without fees or the shifting of cost burdens among benefit request fees due to other policy considerations as cost reallocation. DHS proposes to maintain the current fee for several benefit requests. These proposed fees would have decreased based on the ABC model results. However, DHS proposes to maintain the current fees. This will allow these forms to fund some of the costs of other forms and may limit the fee increase suggested by the fee calculation model for those other forms. In this proposed rule, DHS proposes to not change the following fees: • Form I–90, Application to Replace Permanent Resident Card when filed online. • Form I–131A, Application for Travel Document (Carrier Documentation). VerDate Sep<11>2014 21:38 Jan 03, 2023 Jkt 259001 • Form I–191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA). • Form I–698, Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA). • Form N–565, Application for Replacement Naturalization/Citizenship Document. Some proposed fees are significantly higher than the current fees. In some cases, this is because DHS proposes to not limit those fee increases, as it has done in the past, for policy reasons, as explained below. For example, previous fee schedules limited the increase for the immigration benefit requests associated with Forms I–212, I–601, I– 601A, and I–765.91 See 81 FR 26915– 26916. In the FY 2016/2017 fee rule, DHS stopped limiting the fee increase for inadmissibility waivers like Forms I– 212 and I–601. See 81 FR 73306–73307. In addition, in this proposed rule, DHS proposes not to limit the fee increase to 18 percent for the following immigration benefit requests: • Form I–601A, Provisional Unlawful Presence Waiver; and • Form I–765, Application for Employment Authorization. DHS is not proposing to limit the fee increases for these two immigration benefit requests because, if we did, then other proposed fees would have to increase to recover full cost. For example, DHS limited the fee increase for Form I–765 in the FY 2016/2017 fee rule for humanitarian and practical reasons. See 81 FR 26916. Many individuals seeking immigration benefits face financial obstacles and cannot earn money through lawful employment in the United States until they receive an EAD. In this rule, DHS proposes additional fee exemptions instead of limiting the proposed fee for Form I–765. If DHS were to propose limited fee increases for all of the immigration benefit request fees that were limited in the FY 2016/2017 fee rule, then some proposed fees could increase by as much as $2,855, with the average of those changes being an increase of $79 per immigration benefit request. The rationale for some of these proposed changes is further discussed later in the preamble. See section VIII, 91 See section VIII.F, Naturalization and Citizenship-Related Forms (discussion on the proposed naturalization fees). PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 451 Other Proposed Changes in the FY 2022/2023 Fee Schedule. Later in this preamble, DHS discusses the proposal for separate online and paper filing fees. See section VIII.G. DHS bases the proposed separate online and paper fees on ABC model results. When DHS proposes limited fee increases or to continue using the current fee, the calculation is based on the current fee instead of ABC model results. As such, there are not separate proposed fees for online and paper filing for immigration benefit requests with limited fee increases or for those held to the current fee. 4. Funding the Asylum Program With Employer Petition Fees DHS proposes a new Asylum Program Fee of $600 to be paid by employers who file either a Form I–129, Petition for a Nonimmigrant Worker, or Form I– 140, Immigrant Petition for Alien Worker. Proposed 8 CFR 106.2(c)(13). DHS proposes this new fee as a way to mitigate the scope of the proposed fee increases in this rule for individual applicants and petitioners. DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers. DHS arrived at the amount of the Asylum Program Fee by calculating the amount that would need to be added to the fees for Form I–129, Petition for a Nonimmigrant Worker, and Form I–140, Immigrant Petition for Alien Worker, to collect the Asylum Processing IFR estimated annual costs.92 See Table 11 for details on the calculation. The Asylum Program Fee may be used to fund part of the costs of administering the entire asylum program and would be due in addition to the fee those petitioners would pay using USCIS’ standard costing and fee calculation methodologies. BILLING CODE 9111–97–P 92 DHS notes that in section V.A.2.c of this preamble it identified the costs of the Asylum Processing IFR as averaging $425.9 million annually over FY 2022/2023. That figure represents the estimated costs that are directly attributable to the implementation of that rule. DHS divided this cost estimate by the estimated fee-paying volume for Forms I–129 and I–140 to determine the $600 Asylum Program Fee. Calculation: $425,900,395/ 708,630 = $601.02. DHS rounded to the nearest $5, consistent with other proposed fees. E:\FR\FM\04JAP2.SGM 04JAP2 452 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 11: Asylum Program Fee Calculation Estimated Costs Asylum Processing IFR Costs Total Estimated Cost (150K) $438,200,000 $413,600,790 $425,900,395 Asylum Processing IFR (150K) Cost Estimate FY 2022 Asylum Processing IFR (150K) Cost Estimate FY 2023 Two-year Average Estimated Fee-Paying Receipts Immigration Benefit Requests Projected Fee-Paying Receipts 1-129 Petition for a Nonimmigrant Worker Subtotal For H-1 nonimmigrants For H-2A - Named Beneficiaries For H-2B - Named Beneficiaries For L nonimmigrants For O nonimmigrants Form I-129CW, or Form 1-129 for E & TN, H-3, P, Q, or R Classifications For H-2A - Unnamed Beneficiaries For H-2B - Unnamed Beneficiaries 1-140 Immigrant Petition for Alien Worker Employment-based Petition Total 568,630 430,000 4,020 2,460 42,350 27,300 40,850 17,650 4,000 140,000 708 630 Asylum Program Fee Calculation Estimated cost divided by estimated fee-paying receipts Asylum Program Fee (above row rounded to nearest $5) Asylum Program Fee Estimated Revenue (above row multiplied by fee-paying receipts) This Asylum Program Fee adds a fee for Form I–129 and Form I–140 petitioners of $600 while maintaining lower proposed fees for other immigration benefit requestors than would be proposed if the costs were spread among all other fee payers. For example, charging the Asylum Program Fee only to employer petitions reduces the proposed Form I–485 fee by $170 compared to a fee schedule without the cost shift. Similarly, the proposed fee to file Form I–765 on paper is $70 less than it would be absent the proposed Asylum Program Fee. The proposed fees for Forms I–485, I–765, and others are lower in a scenario with the shift of asylum program costs to employers through the new fee because all IEFA VerDate Sep<11>2014 21:38 Jan 03, 2023 Jkt 259001 non-premium fees are related. Each fee helps recover the cost of work without fees (Forms I–589, I–590, I–914, I–918, etc.) or work with fees that do not recover full cost (Forms N–400, I–600, I–800, etc.). If Forms I–129 and I–140 recover more of those costs, then that means other forms need not recover as much, resulting in lower proposed fees for Forms I–485, I–765, and others that recover more than full cost in this proposal. Table 12 shows the proposed IEFA non-premium fees for Forms I–129 and I–140, including the Asylum Program Fee. The table excludes additional statutory or premium- PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 processing fees that petitioners may pay for these immigration benefit requests.93 93 Most petitioners using Forms I–129 and I–140 may request expedited processing for an additional $2,500 or $1,500 premium processing fee. See USCIS, I–907, Request for Premium Processing Service, https://www.uscis.gov/i-907 (last updated Sep. 30, 2021). Certain H–1B and L petitions may have to pay up to $6,000 in additional statutory fees, which DHS is unable to adjust. USCIS does not keep most of the revenue of these fees. 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 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 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.032</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C $601 $600 $425,178,000 453 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 12: Proposed IEFA Non-Premium Fees for Forms 1-129 and 1-140 Proposed Fee 1-129 Petition for a Nonimmigrant Worker For H-lB For H-2A - Named Beneficiaries For H-2B - Named Beneficiaries ForL ForO Form I-129CW, or Form 1-129 for E or TN, H-3, P, Q or R Classifications H-2A - Unnamed Beneficiaries H-2B - Unnamed Beneficiaries 1-140 Immigrant Petition for Alien Worker khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C The proposed $600 Asylum Program Fee would apply to all fee-paying receipts for Forms I–129, I–129CW, and I–140. For example, it would apply to all initial petitions, changes of status, and extensions of stay that use Form I– 129. DHS acknowledges that the scope of the proposed fee increases in this rule is significant. DHS proposes this cost shifting approach with the Asylum Program Fee to place greater emphasis on the ability-to-pay principle for determining user fees. Petitioners for immigrant and nonimmigrant workers generally are required to have the resources necessary to pay the worker(s) for whom the petition is filed, and the fees that the employer must pay USCIS to file a petition are not significant compared to even a small 94 petitioner’s revenue and profit. That determination is not changed by the proposed Asylum Program Fee. DHS considered proposing to transfer the costs of other humanitarian programs, such as the T, U, VAWA, SIJ, and refugee programs, to those who file benefit requests that may be able to better afford to pay fees. DHS recognizes, however, that we have always spread costs of free services that USCIS provides across all other feepaying requests in the past and we have never directly transferred the costs of one program to another. See, e.g., 85 FR 46869 (stating, ‘‘For the fees that DHS does not limit, we use the total cost for $460 and optional premium processing fee. See USCIS, H and L Filing Fees for Form I–129, Petition for a Nonimmigrant Worker, https://www.uscis.gov/ VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Asylum Program Fee Total Proposed Fee $780 $1,090 $1,080 $1,385 $1,055 $600 $600 $600 $600 $600 $1,380 $1,690 $1,680 $1,985 $1,655 $1,015 $600 $1,615 $530 $580 $715 $600 $600 $600 $1,130 $1,180 $1,315 each form to reallocate the cost of limited fee increases or workload without fees.’’); 75 FR 58973 (Stating, ‘‘To the extent not supported by appropriations, the cost of providing free or reduced services must be transferred to all other fee-paying applicants.’’); 72 FR 29865 (stating, ‘‘As with any other waiver, the loss of that fee revenue would necessarily be spread across all other benefit applications and petitions, having the potential to increase those fees.’’). After considering the impact on all of the fees calculated by the model, DHS is proposing that the Asylum Program Fee for Forms I–129 and I–140 is the appropriate place to shift some of the costs of the asylum. DHS does not propose this Asylum Program Fee without having carefully considered its implications and effects. DHS realizes that some petitioners will object to funding the costs of USCISadministered programs to which they have no connection or from which they receive no direct benefit. DHS is committed to reducing barriers and promoting accessibility to immigration benefits, and knows that the beneficiaries of Forms I–129 and I–140 fuel our economy, contribute to our arts, culture, and government, and have helped the United States lead the world in science, technology, and innovation. DHS is also aware that Forms I–129 and I–140 are submitted by non-profit entities, organizations performing research for government agencies, as well as farms, small businesses, and individuals. DHS appreciates that nonprofit or small entities may not have the same level of financial resources as many large, for-profit corporations that also submit petitions for foreign workers. In our Small Entity Analysis (SEA) for this proposed rule, we provide samples of the I–129 and I–140 forms, and how the fees may impact the small entities with the Asylum Program Fee. Within the SEA, DHS determined the average impacts to employers who file a petition based on their total revenue and profits. For Form I–129, approximately 90 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue. For Form I– 140, approximately 98 percent of the small entities in the sample experienced an economic impact of less than 1 percent of their reported revenue. USCIS acknowledges that those small entities with greater than 1 percent impact may file fewer petitions as a result of this proposed rule. As previously indicated, the success of the USCIS fee model and this rulemaking in generating the necessary revenue depends on the filing volumes not falling short of those projected herein. At the same time, USCIS is charged with administering the asylum program using fee revenue and must make considered judgments about how to fund it using available and appropriate means. Balancing both of those goals, and forms/h-and-l-filing-fees-form-i-129-petitionnonimmigrant-worker (last updated Feb. 20, 2018). 94 Small is defined by U.S. Small Business Administration Guidelines. See Small Entity Analysis for the FY22/23 U.S. Citizenship and Immigration Services Fee Schedule Proposed Rule in Supporting Documents. PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.034</GPH> Immigration Benefit Request 454 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 considering the resources of the Form I– 129 and I–140 filing communities, DHS decided to propose this surcharge. DHS will re-evaluate the Asylum Program Fee based on the status of the Asylum Processing IFR and any funding appropriated for it when DHS develops its final fee rule. C. Exclusion of Temporary or Uncertain Programs As stated in section V.B.1.b. of this preamble, the success of the fees established by this rulemaking in providing the funding necessary to sustain USCIS service levels depends on the projected volume of fee-paying requests filed after this rule takes effect being at or near the level projected. If a program is ended, is partially curtailed, or substantially declines, USCIS is at risk of not achieving the projected and necessary revenue. Therefore, USCIS excludes from the fee calculation model the costs and revenue associated with programs that are temporary by definition or where it is possible that the program will diminish or cease to exist. This exclusion includes Form I– 821, Application for Temporary Protected Status, and Form I–821D, Consideration of Deferred Action for Childhood Arrivals, as well as the Form I–765 filings and biometrics fees associated with both programs. DHS excludes projected revenue from expiring or temporary programs in setting the fees required to support baseline operations due to the uncertainty associated with such programs. For example, the Secretary may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances where the country is temporarily unable to adequately handle the return of its nationals. TPS, however, is a temporary benefit, and TPS designations may be terminated. See INA sec. 244(b)(3)(B), 8 U.S.C. 1254a(b)(3)(B). Likewise, DACA allows certain individuals who meet specific guidelines to request consideration of deferred action from USCIS for a specified period unless terminated. DACA is an administrative exercise of enforcement discretion and is implemented at the discretion of DHS, given that it has insufficient resources to enforce the immigration laws against every noncitizen without lawful immigration status. Because DACA is temporary act of enforcement discretion and may be terminated, it is excluded from this fee review, as discussed further in the next section. DHS excludes the costs and revenue associated with these programs because VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 program eligibility is subject to the discretion of the Department. Because the future of these programs is difficult to predict, as discussed later in this section, USCIS has excluded the cost and workload of these programs from the fee review and does not propose to allocate overhead and other fixed costs to these workload volumes. This mitigates an unnecessary revenue risk. In other words, if DHS established the USCIS fee schedule based on revenue from these programs, and the eligible programs diminish or cease to exist, USCIS will not realize the projected revenue and would not have enough revenue to recover full cost of overhead and other fixed costs. USCIS analyzes variable unit costs associated with processing these benefit types and uses volume forecasts to exclude their costs from the fee review budget and ABC model. All fee revenue deposited into the IEFA is pooled and collectively used to finance USCIS operations including DACA, TPS, and other temporary programs. USCIS also responds to surges in customer demand for services by realigning resources to cover the cost of processing. Consequently, USCIS is capable of funding these programs even though their costs are not included in the fee review budget or ABC model. By excluding programs that are temporary by nature, DHS maintains the integrity of the ABC model, better ensures recovery of full costs, and mitigates revenue risk from unreliable sources. This approach is consistent with prevailing guidance on the subject as stated by Principle 6 of the Government Accountability Office (GAO) Greenbook, Standards for Internal Control in the Federal Government (‘‘The Greenbook’’).95 Principle 6 provides guidance on objectives and risks and advises managers to determine the acceptable level of variation in performance relative to the achievement of objectives. For example, in FY 2020, there were 647,278 active DACA recipients. See 86 FR 53785. DHS estimates that there will be 720,093 active DACA recipients in FY 2023.96 If DHS were to include the DACA renewals in the fee review, it would be one of the larger populations. For example, in FY 2023, USCIS estimates that 573,563 individuals will request either initial or renewal DACA.97 However, on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed, in part, a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful, but remanded the case to the District Court for further consideration of the recently published DACA final rule.98 TPS volumes can vary significantly by fiscal year. In FY 2022, USCIS collected approximately $5.6 million in revenue for Form I–821, and USCIS forecasts 626,770 receipts for Form I–821 in FY 2023. Nevertheless, DHS cannot predict the disasters or crises that lead to new TPS designations. DHS can reliably predict TPS renewals if existing designations are not terminated; however, renewals are often on an 18-month cycle that does not align with Federal fiscal years. Including volume forecasts that are so variable by fiscal year may result in inaccurate fee calculations, especially over a long term. As such, DHS determined that including temporary or uncertain programs in the fee structure would exceed an acceptable level of risk for the success of this fee rule. Adding TPS and DACA costs, volumes, and revenue to the fee review would lower the fee for Form I–765 if its fee is calculated to recover full cost. However, if a certain country’s TPS designation is terminated or if DACA ceases, basing the Form I–765 fee on that projected value leaves USCIS at a risk of not achieving projected revenue and the objectives of this proposed rule. Thus, consistent with four previous fee rules, DHS proposes to exclude from this rule the costs and revenue from programs that are susceptible to large reductions in filing volume. D. Consideration of DACA Rulemaking On August 30, 2022, DHS published a final rule, Deferred Action for Childhood Arrivals, 87 FR 53152 (DACA rule). DHS has considered this rule and the DACA rule’s possible effects on each other when developing this proposed rule. Because the specific costs and revenue associated with DACA are not separately identified in this proposed rule, each rule is 97 87 FR 53277 (Aug. 30, 2022). v. United States, 50 F.4th 498 (5th Cir. 2022). The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 (Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex. 2021) while the case is on remand to the District Court for further proceedings regarding the new DACA rule. While the stay remains in place, current grants of DACA and related Employment Authorization Documents are valid. USCIS will accept and process renewal DACA requests but not process initial DACA requests. 98 Texas 95 The Green Book sets internal control standards for Federal entities. Internal control is a process used by management to help an entity achieve its objectives, run its operations efficiently and effectively, report reliable information about its operations and comply with applicable laws and regulations. See GAO, Standards for Internal Control in the Federal Government (Sep. 10, 2014), https://www.gao.gov/products/gao-14-704g. 96 87 FR 53275 (Aug. 30, 2022). PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules independent and DHS estimates that the DACA rule will have no effects on this rule or vice versa. The DACA rule interacts with this rule only to the extent that the DACA rule established an $85 fee for Form I–821D at 8 CFR 106.2(a)(38) and this rule proposes to move that fee to 8 CFR 106.2(a)(49). khammond on DSKJM1Z7X2PROD with PROPOSALS2 E. Fee-Related Issues for Consideration DHS identified a number of issues that do not affect the FY 2022/2023 fee review but do merit some discussion. DHS does not propose any changes related to the issues discussed in this section. USCIS may discuss these issues in future biennial fee reviews or in conjunction with other USCIS fee rules. To better inform this and future feesetting policies and rules, DHS welcomes comments on all facets of the FY 2022/2023 fee review, this proposed rule, and USCIS fees in general, regardless of whether changes have been proposed here. 1. Accommodating E-Filing and Form Flexibility DHS attempts, as it did in the FY 2010/2011 fee rule, FY 2016/2017 fee rule, and the 2020 fee rule, to propose fees based on form titles instead of form numbers to avoid prescribing fees in a manner that could undermine the adoption by USCIS of electronic processing. See proposed 8 CFR part 106. Form numbers are included for informational purposes but are not intended to restrict the ability of USCIS to collect a fee for a benefit request that falls within the parameters of the adjudication for which the fee is published. DHS has worked for over a decade to remove unnecessary administrative and procedural provisions from title 8 of the CFR so as not to face restrictions such as using a certain form number for a benefit request codified with the force of law. As USCIS modernizes its processes and systems to allow more applicants, petitioners, and requestors to file benefit requests online, the agency may collect fees for immigration benefit requests that do not have a form number or do not have the same form number as described in regulations. This could occur, for example, if USCIS developed an online version of a request that individuals often submit with applications for employment authorization. In this situation, USCIS may find it best to consolidate the two requests without separately labeling the different sections related to the relevant form numbers. DHS would still collect the required fee for the underlying immigration benefit request as well as the request for employment VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 authorization, but the actual online request would not necessarily contain form numbers corresponding to each separate request. Similarly, USCIS may determine that efficiency would be improved by breaking a paper form into separate paper forms. For instance, USCIS could separate Form I–131, Application for Travel Document, into a separate form and form number each for advance parole, humanitarian parole, refugee travel documents, or re-entry permits. In this example, USCIS could continue to charge the current Form I–131 fee for each separate form. This structure permits USCIS to change forms more easily without having to perform a new fee review each time the agency chooses to do so. 2. Processing Time Outlook As discussed in the Projected Cost and Revenue Differential section of this preamble, USCIS anticipates having insufficient resources to process its projected workload absent this fee rule. For FY 2022/2023, USCIS estimates that backlogs will continue to grow in the absence of additional resources. Although USCIS has implemented measures to reduce the backlog as described in section IX.C., USCIS net processing backlogs have grown from approximately 1.4 million cases in December 2016, when DHS last adjusted IEFA non-premium fees, to approximately 8.0 million cases at the end of September 2021.99 On top of these pre-existing strains on USCIS, the COVID–19 pandemic constrained USCIS adjudication capacity by limiting the ability of USCIS to schedule normal volumes of interviews and biometrics appointments while maintaining social distancing standards, contributing to the backlog. Further, USCIS believes that the growing complexity of case adjudications in past years, including prior increases in the number of interviews required and request for evidence (RFE) volumes, has contributed to higher completion rates and growing backlogs. See section V.B.2, Completion Rates. USCIS is reviewing its adjudication and administrative policies to find efficiencies, while strengthening the integrity of the immigration system. This entails evaluating the utility of interview requirements, biometrics submission requirements, RFEs, deference to previous decisions, and other efforts that USCIS believes may, 99 See USCIS, Number of Service wide Forms By Quarter, Form Status, and Processing Time Fiscal Year 2021, Quarter 4, https://www.uscis.gov/sites/ default/files/document/data/Quarterly_All_Forms_ FY2021Q4.pdf (last visited Jan. 11, 2022). PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 455 when implemented, reduce the amount of adjudication officer time required, on average, per case. Any improvements in these completion rates would, all else equal, reduce the number of staff and financial resources USCIS requires. Furthermore, USCIS is actively striving to use its existing workforce more efficiently, by investigating ways to devote a greater share of adjudication officer time to adjudications, rather than administrative work. All else being equal, increasing the average share of an officer’s time spent on adjudication (that is, utilization rate) would increase the number of adjudications completed per officer and reduce USCIS’ overall staffing and resource requirements. USCIS based its fee review largely on existing data that do not presume the outcome of these initiatives. USCIS cannot assume significant efficiency gains in this rule, in advance of such efficiency gains being measurably realized. Establishing more limited fees to account for estimated future efficiency could result in a deficient funding, and USCIS would not be able to meet its operational requirements. In contrast, if USCIS ultimately receives the resources identified in this proposed rule and subsequently achieves significant efficiency gains, this could result in backlog reductions and shorter processing times. Those efficiency improvements would then be considered in future fee reviews. As explained in the FY 2022/2023 Cost Projections section of this preamble, projected workloads for FY 2022 and FY 2023 exceed current processing capacity. Therefore, USCIS requires additional resources and staff to increase its processing capacity to match projected receipt volumes and ensure that backlogs do not continue to grow. Through the adjustments to the fee schedule proposed in this rule, USCIS expects to collect sufficient fee revenue to fund additional staff who will support the estimated FY 2022/ 2023 processing capacity requirements. While USCIS is committed to reducing processing times and the current backlog, DHS will not compromise the integrity of the immigration system and safeguarding national security. VI. Fee Waivers A. Background The fee-setting authority in INA sec. 286(m), 8 U.S.C. 1356(m), states that ‘‘[f]ees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 456 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.’’ That provision does not require that USCIS charge a fee for all of its services, and it provides that USCIS may set fees at less than full cost or provide services for free. DHS has long understood this provision to authorize DHS to fund or subsidize discounted or free USCIS operations through the fees charged to other unrelated filings. DHS has exercised its discretion to provide free services in a number of ways, such as providing that a fee may be waived for eligible filers upon request, by codifying ‘‘no fee,’’ setting a $0 fee, or simply leaving the fee regulations silent and not codifying a fee for a particular service that it provides. Currently, USCIS may waive the fee for certain immigration benefit requests when the individual requesting the benefit is unable to pay the fee. See 8 CFR 103.7(c) (Oct. 1, 2020). To request a fee waiver, the individual must submit a written waiver request for permission to have their benefit request processed without payment. Under the current regulation, the waiver request must state the person’s belief that they are entitled to or deserving of the benefit requested and the reasons for their inability to pay and include evidence to support the reasons indicated. See 8 CFR 103.7(c)(2) (Oct. 1, 2020). There is no appeal of the denial of a fee waiver request. See id. However, Form I–912 may be resubmitted with additional evidence if the fee waiver request is denied. Following the 2010 fee rule, USCIS also issued guidance to the field to streamline fee waiver adjudications and make them more consistent among offices and form types nationwide. See Policy Memorandum, PM–602– 0011.1,100 Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11–26 (Mar. 13, 2011) (‘‘Fee Waiver Policy’’). This guidance clarifies what measures of income can be used and the types of documentation that are acceptable for individuals to present as demonstration that they are unable to pay a fee when requesting a fee waiver. In June 2011, USCIS issued the Request for Fee Waiver, Form I–912, which is an optional standardized form with instructions that can be used to request 100 USCIS, PM 602.0011.1 (March 13, 2011) available at https://www.uscis.gov/sites/default/ files/document/memos/FeeWaiverGuidelines_ Established_by_the_Final%20Rule_ USCISFeeSchedule.pdf. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 a fee waiver in accordance with the fee waiver guidance.101 DHS has always implemented fee waivers for USCIS applicants based on need, and since 2007, has rejected the filing of fee waivers by individuals that have the financial means to pay required fees for the status or benefit sought. See 72 FR 4912 (Feb. 1, 2007). The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) 102 requires DHS to permit certain categories of applicants to apply for fee waivers for ‘‘any fees associated with filing an application for relief through final adjudication of the adjustment of status.’’ 103 DHS interprets ‘‘any fees associated with filing an application for relief through final adjudication of the adjustment of status’’ 104 to mean that, in addition to the main immigration benefit request (such as Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant, Form I–914, Application for T Nonimmigrant Status, or Form I–918, Petition for U Nonimmigrant Status), these categories of applicants must have the opportunity to request a fee waiver for any form associated with the main benefit application up to and including the adjustment of status application.105 B. The 2020 Fee Rule Waiver Changes As stated in section IV of this preamble, each fee review plans for a certain level of fee waivers, fee exemptions, and other fee-paying policy decisions. DHS sets IEFA fees to recover estimated full cost, including the estimated cost of fee-waived and feeexempt work. Applicants, petitioners, and requestors who pay a fee cover the cost of processing their own requests plus the costs of requests that are fee exempt, fee waived, or fee reduced. In prior years, USCIS fees have given significant weight to the ability-to-pay principle. However, on October 25, 2019, DHS revised USCIS fee waiver policies and Form 1–912, including by requiring fee waiver applicants to use the revised Form I–912, requiring waiver applicants to submit tax transcripts to demonstrate income, and not accepting evidence of receipt of a means-tested public benefit as evidence of inability to pay as described (‘‘the 2019 Fee Waiver Revisions’’). See 101 The form and its instructions may be viewed at https://www.uscis.gov/i-912. 102 See title II, subtitle A, sec. 201(d)(3), Public Law 110–457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). 103 See id. 104 See id. 105 Certain USCIS forms are not listed in 8 CFR 103.7(b) and therefore have no fee. See proposed 8 CFR 106.2 for proposed fees. PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 USCIS Policy Manual Alert, Fee Submission of Benefit Requests, PA 2019–06 (October 25, 2019).106 This guidance was effective December 2, 2019. Form I–912 was updated and submitted for a 30-day comment period on June 5, 2019,107 and subsequently approved by OMB on October 24, 2019.108 While the 2019 Fee Waiver Revisions took effect on December 2, 2019, the United States District Court for the Northern District of California preliminarily enjoined them in City of Seattle, No. 3:19–CV–07151–MMC, on December 11, 2019. USCIS then reverted to using the previous policy and form. Subsequently, in the FY 2019/2020 fee review, DHS limited fee waivers in the 2020 fee rule to immigration benefit requests for which USCIS is required by law to consider a fee waiver or where the USCIS Director exercised favorable discretion. 8 CFR 106.3(a)(1) (Oct. 2, 2020). The 2020 fee rule also limited fee waivers to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guidelines (FPG) as defined by the U.S. Department of Health and Human Services (HHS). 8 CFR 106.3(c) (Oct. 2, 2020). In addition, the USCIS Director’s discretion to grant a waiver was limited to: (1) an individual who had an annual household income at or below 125 percent of the FPG as defined by HHS; (2) was seeking an immigration benefit for which they were not required to submit an affidavit of support under INA sec. 213A, 8 U.S.C. 1183a, or were not already a sponsored immigrant as defined in 8 CFR 213a.1; and (3) was seeking an immigration benefit for which they were not subject to the public charge inadmissibility ground under INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 8 CFR 106.3(b) (Oct. 2, 2020). The 2020 fee rule required that a person must submit a request for a fee waiver on the form prescribed by USCIS. 8 CFR 106.3(d) (Oct. 2, 2020). Finally, the 2020 fee rule prescribed the acceptable documentation of gross household income that a person submitting a request for a fee waiver must submit. 8 CFR 106.3(f) (Oct. 2, 2020). As noted above, the 2020 fee rule was preliminarily enjoined before its effective date. As stated in Section IV, DHS has determined that the 2020 fee rule’s changes to fee waiver and fee exemption requirements would adversely impact 106 Available at https://www.uscis.gov/sites/ default/files/document/policy-manual-updates/ 20191025-FeeWaivers.pdf. 107 See 84 FR 26137 (June 5, 2019). 108 See OMB Notice of Action available at https:// www.reginfo.gov/public/do/PRAViewICR?ref_ nbr=201910-1615-006#. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules the ability of those who may be less able to afford the proposed fees to seek an immigration benefit for which they may be eligible. Therefore, in this rule, DHS is proposing to maintain previous regulations for fee waivers and add fee exemptions to address accessibility and affordability. DHS acknowledges that shifting away from the beneficiary-pays approach taken in the 2020 fee rule and reverting to the agency’s historical practice of emphasizing the ability-topay principle allocates costs away from individuals who are exempt from paying fees or have their fees waived, and results in some fees being higher than the estimated cost of providing the associated service. Nevertheless, DHS has determined that these proposed fee waiver regulations are reasonable, authorized by statute, and consistent with the policy goal of making immigration benefits affordable to the public while providing USCIS with adequate funding for its services. khammond on DSKJM1Z7X2PROD with PROPOSALS2 C. Inability To Pay DHS does not propose to change fee waiver eligibility based on an inability to pay, and will maintain the 2011 Fee Waiver Policy criteria that established a streamlined process where USCIS could waive the entire fee and the biometric services fee (if applicable) for forms listed in the 8 CFR 103.7(c)(3) (Oct. 1, 2020).109 Applicants would still be eligible for fee waivers if the form is listed in proposed 8 CFR 106.3(a)(3) and the applicant demonstrates that they meet at least one of the following criteria: • Is receiving a means-tested benefit; • Had a household income at or below 150 percent of the FPG; or • Is experiencing extreme financial hardship, such as unexpected medical bills or emergencies. The FPG, as annually published by the U.S. Department of Health and Human Services 110 increases the latest updated Census Bureau poverty thresholds by the relevant percentage change in the Consumer Price Index for All Urban Consumers (CPI–U). Census Bureau income thresholds vary by family size and composition. If a 109 See U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Policy Memorandum, PM–602–0011.1, ‘‘Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11–26’’ (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/ document/memos/FeeWaiverGuidelines_ Established_by_the_Final%20Rule_ USCISFeeSchedule.pdf; AFM Chapter 10.9(b). 110 See Annual Update of the HHS Poverty Guidelines (87 FR 3315, Jan 21, 2022), available at https://www.federalregister.gov/documents/2022/ 01/21/2022-01166/annual-update-of-the-hhspoverty-guidelines. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 family’s total income is less than the family’s threshold, then every individual in that family is considered to be living in poverty. The official poverty definition uses money income before taxes and does not include capital gains or noncash benefits (public benefits).111 The 2020 Poverty Guidelines for the 48 Contiguous States and the District of Columbia was $12,760 for a household of one and $26,200 for a household of four.112 DHS considered the use of other measures of ability to pay for administration of its fee waiver policies based on input provided by stakeholders and due to concerns about the continued upward trend in the number and dollar amounts of fee waivers approved since the three-step eligibility process and Form I–912 were introduced. For example, besides the FPG and increasing the percentage reviewed, DHS looked at using the United States Department of Housing and Urban Development (HUD) Median Family Income (MFI) 113 estimates. The median household income for 2020 was $67,521 in the United States.114 HUD Income Limits calculations include the median family incomes for each area. HUD uses the Section 8 (housing choice voucher) program’s Fair Market Rent (FMR) 115 area definitions in developing median family incomes.116 After careful consideration, DHS proposes to maintain the use of the FPG for determining income thresholds for USCIS fee waiver purposes for several 111 See How the Census Bureau Measures Poverty, available at https://www.census.gov/topics/incomepoverty/poverty/guidance/povertymeasures.html#:∼:text=Poverty%20 Thresholds%3A%20Measure%20 of%20Need,and%20age%20of%20the%20members (last visited April 19, 2022). 112 See Annual Update of the HHS Poverty Guidelines (86 FR 3060, Jan 17, 2020), available at https://www.federalregister.gov/documents/2020/ 01/17/2020-00858/annual-update-of-the-hhspoverty-guidelines. 113 See HHS, Office Of Policy Development And Research (Pd&R), Income Limits, available at https://www.huduser.gov/portal/datasets/il.html (last visited 10/26/2021). USCIS fee waiver eligibility for receipt of a means-tested benefit includes through HUD-related housing public benefits. 114 See U.S. Census Bureau, Income and Poverty in the United States: 2020 (September 14, 2021) available at https://www.census.gov/library/ publications/2021/demo/p60-273.html (last visited 04/19/2022). 115 See 24 CFR 888.113 are estimates of 40th percentile gross rents for standard quality units within a metropolitan area or nonmetropolitan county. See Fair Market Rents (40th Percentile Rents) available at https://www.huduser.gov/portal/ datasets/fmr.html (last visited 4/19/2022). 116 See Methodology for Determining Section 8 Income Limits available at https:// www.huduser.gov/portal/datasets/il//il21/ IncomeLimitsMethodology-FY21.pdf (last visited 4/ 19/2022). PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 457 reasons. First, the FPG ensures a consistent national standard for income thresholds as HHS is required to update the FPG at least annually, adjusting them based on the Consumer Price Index for All Urban Consumers (CPI–U). The MFI and other thresholds vary greatly by area and require a specific calculation by state and county and, accordingly, relying on them would increase administrative costs. Second, it promotes consistency between fee waivers and numerous other Federal programs that utilize the FPG as an eligibility criterion, including Medicaid. The MFI is specifically used for HUD benefits and the calculation changes based on the area, so additional calculations would need to be done in order to determine eligibility. Thirdly, USCIS has used the FPG since putting the streamlined fee waiver request and approval process in place over a decade ago, has been effectively used, and its continued use would limit confusion.117 In addition, DHS believes that the using FPG minimizes confusion for the public and USCIS employees in determining income thresholds for fee waiver eligibility. DHS has determined that use of the FPG for determining income thresholds affords consistency for administering a nationwide benefits program that other income guidelines do not, preserves the accessibility and affordability of immigration benefits for those who are eligible and may be less able to afford the proposed fees, and does not result in unmanageable levels of unfunded immigration services that must be borne by other fees. D. USCIS Director’s Discretionary Fee Waivers and Exemptions The FY 2010/2011 fee rule also authorized the USCIS Director to approve and suspend exemptions from fees or provide that the fee may be waived for a case or class of cases that is not otherwise provided in the 8 CFR 103.7(c) (Oct. 1, 2020). See 75 FR 58990 (Sept. 24, 2010); 8 CFR 103.7(d) (Oct. 1, 2020). DHS proposes to retain the authority in regulations for the Director of USCIS to provide exemptions from or waive any fee for a case or specific class of cases, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law. See 8 CFR 103.7(d) 117 As noted in the FY 2016/2017 fee rule, estimates of foregone revenue from fee waivers and exemptions increased markedly, from $191 million in the FY 2010/2011 fee review to $613 million in the FY 2016/2017 Fee Review. See 81 FR 73307. Since 2017, the upward trend in the amount of fee revenue foregone has since subsided. See Appendix V—Fee Waivers of the supporting documentation in this docket for historical trends from FY 2014 to FY 2020; the graph excludes the cost of fee exemptions. E:\FR\FM\04JAP2.SGM 04JAP2 458 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (Oct. 1, 2021); proposed 8 CFR 106.3(c). Previous USCIS Directors have used this authority to permit fee waivers or provide fee exemptions for specific categories and groups of immigrants.118 DHS further proposes to maintain the current provision’s limitation on the delegation of this authority to waive or exempt fees to the Deputy Director. Id. In the 2020 fee rule, DHS had proposed to limit the USCIS’ Director’s authority to issue fee waivers and exemptions based on categories of applicants such as asylee, refugees, national security or emergencies or natural disasters. See 8 CFR 106.3(b) and (e).119 DHS believes that maintaining the authority for this extraordinary relief with the leaders of USCIS will ensure that it is consistently administered and not handled in a way that could impair USCIS fee revenue or shift significant costs among benefit requests by policy outside of rulemaking. E. Requirement To Submit Fee Waiver Form khammond on DSKJM1Z7X2PROD with PROPOSALS2 In addition, DHS proposes that fee waiver requests must be submitted on the form prescribed by USCIS, Form I– 912, Request for Fee Waiver. Proposed 8 CFR 106.3(a)(2). Currently, requests for fee waivers may be made via a written request submitted with evidence of eligibility. Less than one percent of the fee waivers requests are submitted through a written request instead of Form I–912.120 Some written fee waiver requests may be denied because they do not provide sufficient information for USCIS to adjudicate the request. DHS believes that requiring Form I–912 will ensure that the information required to make a fee waiver determination is provided and may result in fewer rejections due to insufficient or incomplete requests. DHS realizes that requiring the form instead of allowing a written statement with documentation may be an additional burden. Adjudicating ad hoc fee waiver requests, however, has proven to be difficult for USCIS due to the varied quality and information provided in such standalone letter 118 For example, See, DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals as They Resettle in the U.S. (Nov. 8, 2021), available at https://www.uscis.gov/ newsroom/news-releases/dhs-announces-feeexemptions-streamlined-processing-for-afghannationals-as-they-resettle-in-the-us (last visited 04/ 19/2022). An individual is not permitted to independently submit a request to the USCIS Director to exempt or waive a fee. 119 See 85 FR 46920 (Aug 3, 2020). 120 See the Regulatory Impact Analysis, sec. O, Fee Waivers, for further discussion. A total of 29 letters were submitted in lieu of Form I–912 in 2017, .07 percent of the total. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 requests. Form I–912 has an estimated time of completion of one hour and ten minutes, and it provides standardization that will assist USCIS in review of requests. Because DHS has determined that requiring the form will reduce rejections, DHS believes that any added burden is warranted and in the long term will assist applicants and limit future burdens. F. Form and Policy Changes As discussed in the Paperwork Reduction Act section of this rule, DHS is proposing changes to the information collection requirements 121 associated with Form I–912 to clarify the following policies: • The burden of proof for inability to pay is based on a preponderance of the evidence. An officer may grant a request for fee waiver in the absence of some of this documentation so long as the available documentation supports that the requestor is more likely than not to be unable to pay the fee. • A child’s receipt of public housing assistance, such as public housing or Section 8, will be acceptable as required evidence of the parent’s eligibility for a fee waiver when the parent resides in the same residence. • The documentary requirements for humanitarian categories of fee waiver requestors will include that: Æ Requestors seeking a fee waiver for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status do not need to list the following people as household members or provide income information for: D Any person in the household who is or was the requestor’s abuser, human trafficker, or perpetrator; or D A person who is or was a member of the abuser, human trafficker, or perpetrator’s household. Æ Financial hardships that qualify an applicant for a fee waiver may result from, but are not limited to the following examples: D A medical emergency or catastrophic illness affecting the noncitizen or the noncitizen’s dependents; D Unemployment; D Significant loss of work hours and wages (change in employment status); D Eviction; D Homelessness; D Military deployment of spouse or parent; 121 DHS is proposing these policy changes in guidance and in in form instructions and not codifying them in this rule as regulations but marks those changes in the supporting documents in the docket for the public to review. PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 D Natural disaster; D Loss of home (destruction such as fire, water, or collapse); D Inability to pay basic utilities and rent or mortgage (payments and bills for each month are more than the monthly wages); D Substantial financial losses to a small business that affect personal income; D Victimization; D Divorce or death of a spouse that affects overall income; or D Situations that could not normally be expected in the regular course of life events. Æ A requestor may submit tax returns, a W–2, or pay stubs to establish household income. Æ If the requestor has no income due to unemployment, homelessness, or other factors, the requestor may provide, as applicable: D A detailed description of the financial situation that demonstrates eligibility for the fee waiver; D Hospital bills, or bankruptcy documents; D If the requestor is receiving support services, an affidavit from a religious institution, non-profit, hospital, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the requestor’s financial situation; or D Evidence of unemployment, such as a termination letter or unemployment insurance receipt. These proposed policy changes are aimed at reducing the public burden and clarifying the types of documents and applicant can provide with the form. These changes are also responsive to the comments and suggestions provided by the public in the RPI. DHS believes that making these policy changes will provide additional guidance to the public on eligibility and will clarify requirements for vulnerable populations. G. Request for Comments DHS welcomes comment on the proposed changes to additional fee waivers which may include additional categories of petitioners, applicants or forms. In addition, while DHS proposes no changes to the fee waiver criteria, the Department specifically requests comments on the appropriate level of income that should be used by an applicant who is unable to pay their fee and data to support that suggested level or measure. DHS also welcomes comments on requiring Form I–912 for all fee requests and on alternatives for reducing E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules rejections based on lack of information or documentation with a written request. khammond on DSKJM1Z7X2PROD with PROPOSALS2 VII. Fee Exemptions As stated in section VI.A., DHS may provide services for free and fund those free services with the fees charged to other, unrelated filings. DHS has exercised its discretion to provide free services by providing that a fee may be waived upon request, or by codifying ‘‘no fee,’’ setting a $0 fee, or not codifying a fee for a particular service that USCIS administers. DHS is proposing to maintain fee exemptions currently being applied and provide new fee exemptions in this rule as follows. A. Codification of Benefit Requests With No Fees and Exemptions of Certain Categories or Classifications From Fees DHS proposes to codify several longstanding fee exemptions that are currently provided through policy guidance documents, such as form instructions, the USCIS policy manual, or similar directives, but not in regulations, including the following: 122 • Form I–90, Application to Replace Permanent Resident Card. No fee if the applicant was issued a card but never received it, or if the applicant’s card was issued with incorrect information because of DHS error. Proposed 8 CFR 106.2(a)(1)(iv). • Form I–102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. No fee for initial filings for a nonimmigrant member of the U.S. armed forces, for a nonimmigrant member of the North Atlantic Treaty Organization (NATO) armed forces or civil component; for a nonimmigrant member of the Partnership for Peace military program under the Status of Forces Agreement; and for replacement for DHS error. Proposed 8 CFR 106.2(a)(2)(i) through (iv). • Form I–129CWR, Semiannual Report for CW–1 Employers. Proposed 8 CFR 106.2(a)(4)(ii). • Form I–131, Application for Travel Document. Proposed 8 CFR 106.2(a)(7)(v). No fees for parole requests from current or former U.S. armed forces service members. • Form I–134, Declaration of Financial Support. Proposed 8 CFR 106.2(a)(9). 122 Application for Commonwealth of the Northern Mariana Islands (CNMI) Long-Term Resident Status (Form I–955) is not included in this list because USCIS only accepted applications for initial CNMI long-term resident status between February 19, 2020 and August 17, 2020. As of August 17, 2020, USCIS no longer accepts any Forms I–955. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant. DHS proposes no fee for the following: Æ A petition for Special Immigrant Juvenile (SIJ) classification, Proposed 8 CFR 106.2(a)(16)(iii); and Æ A petition for a person who served honorably on active duty in the U.S. armed forces filing under INA sec. 101(a)(27)(K). Proposed 8 CFR 106.2(a)(16)(v). • Form I–361, Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97–359 Amerasian. Proposed 8 CFR 106.2(a)(17). • Form I–363, Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97–359 Amerasian. Proposed 8 CFR 106.2(a)(18). • Form I–407, Record of Abandonment of Lawful Permanent Resident Status. Proposed 8 CFR 106.2(a)(19). • Form I–485J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). Proposed 8 CFR 106.2(a)(22). • Form I–508, Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities. Proposed 8 CFR 106.2(a)(23). • Form I–539, Application to Extend/ Change Nonimmigrant Status for nonimmigrant A, G, and NATO and T nonimmigrant. Proposed 8 CFR 106.2(a)(25)(iii)(A). • Form I–566, Interagency Record of Request—A, G, or NATO Dependent Employment Authorization or Change/ Adjustment To/From A, G, or NATO Status. Proposed 8 CFR 106.2(a)(26). • Form I–589, Application for Asylum and for Withholding of Removal. Proposed 8 CFR 106.2(a)(27). • Form I–590, Registration for Classification as a Refugee. Proposed 8 CFR 106.2(a)(28). • Form I–600, Petition to Classify Orphan as an Immediate Relative. DHS proposes no fee for the first Form I–600 filed for a child based on an approved Form I–600A, Application for Advance Processing of an Orphan Petition, during the Form I–600A approval or extended approval period. Proposed 8 CFR 106.2(a)(29)(i). • Form I–601, Application for Waiver of Grounds of Inadmissibility. DHS proposes to move the current fee exemption for concurrently filing a Form I–601 for certain reasons in 8 CFR 245.1(f) to the fee provision for the Form I–601. Proposed 8 CFR 106.2(a)(32). • Form I–602, Application by Refugee for Waiver of Grounds of Inadmissibility. Proposed 8 CFR 106.2(a)(34). PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 459 • Form I–693, Report of Medical Examination and Vaccination Record. Proposed 8 CFR 106.2(a)(38). • Form I–730, Refugee/Asylee Relative Petition. Proposed 8 CFR 106.2(a)(41). • Form I–765, Application for Employment Authorization. DHS proposes that no fee will be charged for an initial EAD for the following: Æ Dependents of certain Government and international organizations or NATO personnel. Proposed 8 CFR 106.2(a)(43)(iii)(B). Æ N–8 (Parent of noncitizen classified as SK3) and N–9 (Child of N–8) nonimmigrants; Proposed 8 CFR 106.2(a)(43)(iii)(C). Æ Persons granted asylee status (AS1, AS6). Proposed 8 CFR 106.2(a)(43)(iii)(D). Æ Citizens of Micronesia, Marshall Islands, or Palau. Proposed 8 CFR 106.2(a)(43)(iii)(E). Æ Persons Granted Withholding of Deportation or Removal. Proposed 8 CFR 106.2(a)(43)(iii)(F). Æ Applicants for Asylum and Withholding of Deportation or Removal including derivatives. Proposed 8 CFR 106.2(a)(43)(iii)(G). Æ Taiwanese dependents of Taipei Economic and Cultural Representative Office E–1 employees. Proposed 8 CFR 106.2(a)(43)(iii)(H). Æ A Request for replacement EAD based on USCIS error. Proposed 8 CFR 106.2(a)(43)(iv). Æ For a renewal or replacement EAD for the following: D Dependents of certain foreign government, international organization, or NATO personnel. Proposed 8 CFR 106.2(a)(43)(v)(B); D Citizens of Micronesia, Marshall Islands, or Palau. Proposed 8 CFR 106.2(a)(43)(v)(C); and D Persons Granted Withholding of Deportation or Removal. Proposed 8 CFR 106.2(a)(43)(v)(D). • Form I–765V, Application for Employment Authorization for Abused Nonimmigrant Spouse. Proposed 8 CFR 106.2(a)(43)(vi) and 8 CFR 106.3(a)(3)(iii). • Form I–800, Petition to Classify Convention Adoptee as an Immediate Relative, for the first Form I–800 filed for a child based on an approved Form I–800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, during the Form I– 800A approval period or extended approval period. Proposed 8 CFR 106.2(a)(44)(i)(A). • Form I–821, Application for Temporary Protected Status. There is no fee for re-registration. Proposed 8 CFR 106.2(a)(48)(ii). E:\FR\FM\04JAP2.SGM 04JAP2 460 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • Form I–854, Inter-Agency Alien Witness and Informant Record. Proposed 8 CFR 106.2(a)(52). • Form I–864, Affidavit of Support Under Section 213A of the INA. Proposed 8 CFR 106.2(a)(53). • Form I–864A, Contract Between Sponsor and Household Member. Proposed 8 CFR 106.2(a)(53)(i). • Form I–864EZ, Affidavit of Support Under Section 213A of the INA. Proposed 8 CFR 106.2(a)(53)(ii). • Form I–864W, Request for Exemption for Intending Immigrant’s Affidavit of Support. Proposed 8 CFR 106.2(a)(53)(iii). • Form I–865, Sponsor’s Notice of Change of Address. Proposed 8 CFR 106.2(a)(53)(iv). • Form I–912, Request for Fee Waiver. Proposed 8 CFR 106.2(a)(58). • Supplement A to Form I–914, Application for Immigrant Family Member of a T–1 Recipient, and Supplement B to Form I–914, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. Proposed 8 CFR 106.2(a)(59). • Supplement A to Form I–918, Petition for Qualifying Family Member of U–1 Recipient, and Supplement B to Form I–918, U Nonimmigrant Status Certification. Proposed 8 CFR 106.2(a)(60). • Form I–942, Request for Reduced Fee, requesting a reduced fee for the naturalization application Form N–400. Proposed 8 CFR 106.2(a)(65). • Form N–4, Monthly Report on Naturalization Papers. Proposed 8 CFR 106.2(b)(1). • Form N–476, Request for Certification of Military or Naval Service. Proposed 8 CFR 106.2(b)(5). • Form N–644, Application for Posthumous Citizenship. Proposed 8 CFR 106.2(b)(10). • Form N–648, Medical Certification for Disability Exceptions. Proposed 8 CFR 106.2(b)(11). • Claimant under INA sec. 289. Proposed 8 CFR 106.2(c)(9). khammond on DSKJM1Z7X2PROD with PROPOSALS2 B. Proposed Fee Exemptions The TVPRA 123 requires DHS to permit certain categories of requestors filing petitions and applications to apply for fee waivers, including for ‘‘any fees associated with filing an application for relief through final adjudication of the adjustment of status.’’ 124 This provision generally is limited to VAWA self-petitioners, as defined in INA sec. 101(a)(51), and 123 See title II, subtitle A, sec. 201(d)(3), Public Law 110–457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). 124 See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 noncitizens applying for certain other immigration benefits available to battered spouses and children or for T or U nonimmigrant status. DHS interprets this language to mean that, in addition to the main benefit request, individuals must have the opportunity to request a fee waiver for any form associated with the main benefit request up to and including the adjustment of status application. See 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020); proposed 8 CFR 106.3(a)(3)(iii). Although DHS is authorized to establish and collect a fee for that benefit request under INA sec. 286(m), 8 U.S.C. 1356(m), several humanitarian benefit requests have been exempted from fees because of the humanitarian nature of these programs and the likelihood that individuals who file requests in these categories will qualify for a fee waiver if they request it.125 DHS is proposing to provide additional fee exemptions for the following humanitarian-based immigration benefit requests under proposed 8 CFR 106.3(b) for the reasons listed below. These fee exemptions do not impact eligibility for any particular form or when an individual may file the form. These fee exemptions are in addition to the forms listed under proposed 8 CFR 106.2 for which DHS proposes to codify that there is ‘‘no fee.’’ Table 13C below provides a summary of the categories and the forms eligible for fee exemptions and fee waivers. In this proposed rule, DHS estimates that the increase in fee exemptions accounts for 1 percent of the 40-percent weighted average fee increase.126 1. Victims of Severe Form of Trafficking (T Nonimmigrants) There is no fee for filing Form I–914, Application for T Nonimmigrant Status; Form I–914, Supplement A, Application for Family Member of T–1 Recipient; and Form I–914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons; under former 8 CFR 103.7(b)(1)(i)(UU) (Oct. 1, 2020), and DHS will continue to have no filing fee for these forms under proposed 8 CFR 106.2(a)(59). Principal applicants for T nonimmigrant status currently also do not file Form I–765 or pay a fee when an EAD is requested on Form I–914 and is issued incident to status. Any principal applicant who does not request employment authorization on Form I–914 must file 125 See, e.g., previous 8 CFR 103.7(b)(1)(i)(UU) and (VV) (codifying no fee for, respectively, the Application for T Nonimmigrant Status, Form I– 914, and the Petition for U Nonimmigrant Status, Form I–918). 126 Office of the Chief Financial Officer (OCFO), September 13, 2021. PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 Form I–765 but is fee exempt. Derivative beneficiaries must file Form I–765 and must submit a fee or fee waiver request. Currently, T nonimmigrants may request fee waivers for all forms up to and including a Form I–485 and associated forms.127 In this proposed rule, DHS is proposing to expand fee exemptions for all persons seeking or granted T nonimmigrant status, including principals and derivatives, for all forms associated with an initial application for T nonimmigrant status through final adjudication of the T nonimmigrant’s application for adjustment of status to LPR. See proposed 8 CFR 106.3(b)(2). Applicants for T nonimmigrant status are a small and especially vulnerable population that has historically underused the T visa program; DHS has never come close to reaching the annual statutory cap of 5,000 visas allocated to principal victims since the creation of the T visa program. Many T visa applicants are also eligible for fee waivers. To encourage eligible victims of trafficking to use the T visa program, DHS is proposing to expand fee exemptions for this population. 2. Victims of Qualifying Criminal Activity (U Nonimmigrants) There is no fee for filing Form I–918, Petition for U Nonimmigrant Status; Form I–918, Supplement A, Petition for Qualifying Family Member of U–1 Recipient; or Form I–918, Supplement B U Nonimmigrant Status Certification. See 8 CFR 103.7(b)(1)(i)(VV) (Oct. 1, 2020). DHS proposes to continue having no fee for these forms. Proposed 8 CFR 106.2(a)(60). Principal U nonimmigrants who are in the United States are also currently fee exempt for fees associated with employment authorization when it is issued incident to status and are not required to file Form I–765 to receive an EAD under 8 CFR 214.14(c)(7). Principal U nonimmigrants outside the United States are fee exempt for fees associated with employment authorization issued incident to status once they enter the United States and file Form I–765. Derivative beneficiaries requesting employment authorization, however, must file Form I–765 with the appropriate fee or fee waiver request. U nonimmigrants may also request a fee waiver for any forms filed up to and including a Form I–485 and associated forms.128 DHS is now proposing to expand fee exemptions for persons seeking or granted U nonimmigrant status for all 127 See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7); 8 CFR 103.7(c) (Oct. 1, 2020). 128 See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules forms filed before filing a Form I–485. Proposed 8 CFR 106.3(b)(5). Form I–765 would only be fee exempt, however, for an initial request under 8 CFR 274a.12(a)(19) and (20) and an initial request under 8 CFR 274a.12(c)(14). DHS is proposing that any form associated with U nonimmigrant status be fee exempt up until the filing of a Form I–485. A fee would be due (or a fee waiver requested) for a U nonimmigrant to file a Form I–485 and any Form I–929, Petition for Qualifying Family Member. The fee exemption for U nonimmigrants would not extend to the Form I–485, unlike the fee exemption proposed for a Form I–485 filed by T nonimmigrants. DHS acknowledges that, like T nonimmigrants, U nonimmigrants are a particularly vulnerable population as victims of crimes and may have similar financial resources or employment prospects. However, DHS is proposing to treat them differently with regard to their respective Form I–485 fees. U nonimmigrants may have a longer time with work authorization than T nonimmigrants given the ability of U nonimmigrant petitioners to receive work authorization as part of the bona fide determination (BFD) process or with placement on the waiting list and the lengthy waiting period before a U visa becomes available. While some T nonimmigrant applicants may have work authorization during the pendency of their application pursuant to a grant of Continued Presence by U.S. Immigration and Customs Enforcement (ICE), there has not been a BFD process implemented in the T visa program, nor has a waiting list ever been used. The annual cap of 5,000 visas for the T visa program has also never been met, whereas the annual cap of 10,000 visas for the U visa program is consistently reached. Given current T nonimmigrant status processing times, which are much shorter than in the U visa context, the issuance of T nonimmigrant status may occur before a U petitioner is issued a BFD or waiting list-based work authorization. Some T nonimmigrants are also able to adjust much more quickly than a U visa petitioner given their ability to adjust upon the completion of the trafficking investigation or prosecution if certified by the U.S. Attorney General. In some cases, the investigation or prosecution is already complete at the time the individual receives T nonimmigrant status, rendering them immediately eligible to adjust status. For all of these reasons, U nonimmigrants are likely to have had work authorization much longer than T nonimmigrants, and thus VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 are less likely to need a fee exemption for filing Form I–485. In addition, USCIS receives a large number of petitions for U nonimmigrant status each year and the cost of administering the U nonimmigrant program is already largely funded by other fee-paying requests. The T nonimmigrant program is also funded by other fee-paying requests, but the costs of the T program are much lower because the volume of T-based requests that USCIS must adjudicate is significantly lower. DHS has determined that extending fee exemptions to the low volume of T nonimmigrants filing Form I–485 could be absorbed with very little impact. In contrast, providing a fee exemption for U nonimmigrants filing Form I–485 would result in substantial adjudication costs being shifted to fee payers because of the much larger number of U nonimmigrants who file Form I–485. Thus, while the populations have many similar characteristics, because of the different levels of cost shifting required, DHS decided that the different treatments for the Form I–485 fee were justified as proposed in this rule. 3. VAWA Form I–360 Self-Petitioners and Derivatives Violence Against Women Act (VAWA) self-petitioners currently pay no fee for filing Form I–360 and would continue to not pay a fee under this proposed rule. See 8 CFR 106.2(a)(16)(ii) (Oct. 1, 2020); proposed 8 CFR 106.3(b)(6). VAWA self-petitioners also currently are not required to file Form I–765 or pay a fee when employment authorization is requested on Form I– 360. VAWA self-petitioners who do not request employment authorization on Form I–360, however, and all derivative beneficiaries must file Form I–765 and submit the fee or request a fee waiver to obtain employment authorization. VAWA self-petitioners and derivatives are currently eligible for fee waivers for any forms filed up to and including a Form I–485 and associated forms.129 DHS is now proposing to expand fee exemptions for persons seeking or granted immigrant classification as VAWA self-petitioners. See proposed 8 CFR 106.3(b)(6). VAWA self-petitioners and derivatives are eligible to concurrently file Form I–360 and Form I–485 if a visa would be immediately available after approval of Form I– 360.130 Therefore, when a VAWA Form I–360 is concurrently filed or pending 129 See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). INA sec. 204(a)(1)(A)(iii)(II)(cc), (iv), (v), and (vii); 8 U.S.C. 1154(a)(1)(A)(iii)(II)(cc), (iv), (v), and (vii). See 8 CFR 245.2(a)(i)(2)(B). 130 See PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 461 with Form I–485, DHS proposes that VAWA self-petitioners be fee exempt for all forms associated with the Form I– 360 filing through final adjudication of the adjustment of status application, including the filing of Form I–290B. Id. When a VAWA Form I–360 is filed as a standalone self-petition, however, the VAWA self-petitioner would only be fee exempt for Form I–290B, if filed as a motion to reopen or reconsider or an appeal of the Form I–360 denial. Proposed 8 CFR 106.3(b)(6)(ii). All separately filed Form I–485s and associated forms would require a fee or fee waiver request. Additionally, only initial requests for employment authorization under 8 CFR 274a.12(c)(14) and initial requests under INA sec. 204(a)(1)(K) for the beneficiary of an approved VAWA self-petition would be fee exempt. Requests for employment authorization approved under INA sec. 204(a)(1)(K) are issued as a category (c)(31) EAD. A fee or fee waiver request will be required to replace or renew the initial, free EAD. For VAWA self-petitioners filing Form I–360, all fee exemptions will also apply to derivative beneficiaries. Proposed 8 CFR 106.3(b)(6). Like T and U nonimmigrants, VAWA self-petitioners are a particularly vulnerable population as victims of abuse and may not have the financial resources or employment authorization needed to pay for fees when initially filing for immigrant classification as VAWA self-petitioners. When passing VAWA, Congress gave individuals the ability to independently seek immigrant classification without the abusive U.S. citizen or LPR’s participation or knowledge. VAWA self-petitioners may still be living with their abuser or may have recently fled their abusive relationship when filing the selfpetition. According to the National Network to End Domestic Violence, abusers often maintain control over financial resources to further the abuse, and victims may have to choose between staying in an abusive relationship and poverty and homelessness.131 Therefore, victims of abuse may not have access to their finances or the financial means to pay for fees when filing VAWA Form I–360, Form I–485, and associated forms. DHS, however, must weigh these difficult considerations against the number of VAWA self-petition filings it receives each year and the transfer of costs to other petitions and applications if these 131 See ‘‘About Financial Abuse,’’ Nat’l Network to End Domestic Violence, https://nnedv.org/ content/about-financial-abuse/ (last viewed June 2, 2021). E:\FR\FM\04JAP2.SGM 04JAP2 462 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules filings were fee exempt through final adjudication of the adjustment of status application. Therefore, DHS is proposing to limit the new fee exemptions for these populations to forms associated with the VAWA selfpetition filing that are filed at the same time as or while the VAWA Form I–360 self-petition is pending before the adjustment of status applicant is filed. DHS is not proposing to exempt VAWA self-petitioners from the Form I–485 fee when it is filed after their I–360 is approved because the approval of the Form I–360 authorizes employment of the self-petitioner and the ability to either obtain the funds to pay the fee or request a fee waiver. 4. Conditional Permanent Residents Filing a Waiver of Joint Filing Requirement Based on Battery or Extreme Cruelty khammond on DSKJM1Z7X2PROD with PROPOSALS2 Conditional permanent residents (CPRs) filing a waiver of the joint filing requirement based on battery or extreme cruelty (abuse waiver) are considered VAWA self-petitioners as defined in INA sec. 101(a)(51)(C) and currently may request a fee waiver when filing Form I–751. See 8 CFR 103.7(c)(3)(vii) (Oct. 1, 2020). DHS proposes that a CPR requesting an abuse waiver continue to be eligible to request a fee waiver when filing Form I–751. See proposed 8 CFR 106.3(a)(3)(i)(C). Because CPRs filing Form I–751 may file for more than one basis when seeking any waiver of the joint filing requirement, USCIS is unable to provide a fee exemption for Form I–751 abuse waivers. However, because CPRs requesting abuse waivers are a relatively small population and are particularly vulnerable as victims of abuse as stated above, DHS is proposing to exempt them from the fee for Form I–290B to file a motion to reopen or reconsider the decision after a Form I– 751 abuse waiver request is denied. See proposed 8 CFR 106.2(a)(15). DHS proposes to provide fee exemptions for these persons for all forms filed through final adjudication for adjustment of status to LPR, including Form I–485 and associated forms. Proposed 8 CFR 106.3(b)(4). For abused spouses and children filing under CAA and HRIFA, they will be fee exempt for Form I–485 and associated forms, as they file for VAWA benefits on Form I–485. Proposed 8 CFR 106.3(b)(4). Associated forms include any forms filed before the individual adjusts their status to LPR, such as a Form I–131; Form I–212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal; Form I–290B, Form I–601, and Form I–765. Id. Like VAWA selfpetitioners filing Form I–360, these abused spouses and children are particularly vulnerable populations as victims of abuse. As there were fewer than 50 applications filed for these 2 populations combined in FY 2020, and the applicant files for VAWA benefits when filing for adjustment of status to LPR, DHS proposes to provide fee exemptions for the VAWA-based filing (such as for Form I–485) as well as associated forms. Id. 6. Abused Spouses and Children Seeking Benefits Under NACARA Abused spouses and children seeking benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA) are considered VAWA self-petitioners as defined in INA sec. 101(a)(51)(F). As such, they are currently eligible for fee waivers for any forms filed through adjustment of status, including associated forms.133 See 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020). DHS proposes to provide fee exemptions for abused spouses and children seeking benefits under NACARA for all forms filed through final adjudication for adjustment of status to LPR, including the Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant 5. Abused Spouses and Children to Section 203 of Public Law 105–100 Adjusting Status Under CAA or HRIFA (NACARA)) (Form I–881) and associated Abused spouses and children seeking forms. Proposed 8 CFR 106.3(b)(7). For benefits under the Cuban Adjustment abused spouses and children under Act (CAA) and the Haitian Refugee NACARA, they must file for VAWA Immigration Fairness Act (HRIFA) are benefits while in immigration considered VAWA self-petitioners as proceedings, so they will be fee exempt defined in INA sec. 101(a)(51)(D) and for the Form I–881, Form I–601, and (E). As such, they are currently eligible Form I–765, which are forms that may for fee waivers for any forms filed be filed with USCIS. Victims of abuse through adjustment of status to LPR, who file for VAWA benefits in including associated forms.132 See 8 CFR immigration court proceedings are a 103.7(c)(3)(xviii) (Oct. 1, 2020). particularly vulnerable population of applicants as mentioned previously. Therefore, DHS proposes to provide fee exemptions for Form I–881 and Form I– 765, which are forms that may be filed with USCIS. Id. 7. Abused Spouses and Children of LPRs or U.S. Citizens Under INA Sec. 240A(b)(2) Currently, abused spouses and children of LPRs and U.S. citizens seeking cancellation of removal and adjustment of status under INA sec. 240A(b)(2) are eligible for fee waivers for any forms filed with USCIS through adjustment of status to LPR, including associated forms.134 See 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020). In this rule, DHS proposes that this population be exempt from the fee for an Application for Waiver of Grounds of Inadmissibility (Form I–601) and an initial Application for Employment Authorization (Form I–765) when filed under 8 CFR 274a.12(c)(10). See Proposed 8 CFR 106.3(b)(8). Abused spouses and children of LPRs and U.S. citizens seeking cancellation of removal and adjustment of status in immigration proceedings are a particularly vulnerable population. Therefore, DHS proposes to provide fee exemptions for the only forms that this population may file with USCIS, Forms I–601 and an initial I–765. Id. 8. Special Immigrant Afghan or Iraqi Translators or Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S. Government, or Afghan Nationals Employed by or on Behalf of the U.S. Government or Employed by the International Security Assistance Force and Derivative Beneficiaries The National Defense Authorization Act for FY 2008 135 and Omnibus Appropriations Act 136 prohibit DHS from charging any fees in connection with an application for, or issuance of, a special immigrant visa for Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the International Security Assistance Force (ISAF). These applicants do not currently pay fees for Form I–360. 134 See INA sec. 245(l)(7); 8 U.S.C. 1255(l)(7). Public Law 110–181 (Jan. 28, 2008). 136 See Public Law 111–8 (Mar. 11, 2009). 135 See 132 See INA sec. 245(l)(7); 8 U.S.C. 1255(l)(7). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 133 See PO 00000 INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). Frm 00062 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 As part of Operation Allies Welcome, beginning in July 2021, DHS authorized filing fee exemptions, including for Form I–485, Form I–601, and Form I– 765, for certain Afghan nationals and their derivative beneficiaries meeting certain criteria, who were evacuated from Afghanistan due to the humanitarian crisis in that country.137 DHS is proposing to expand fee exemptions for Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi Nationals Employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF to all forms associated with filings from initial status filing through final adjudication of the adjustment of status application. Proposed 8 CFR 106.3(b)(3). In addition, DHS is clarifying that surviving spouses and children of certain principal applicants who may file a petition for classification as a special immigrant under to section 403 of the Emergency Security Supplemental Appropriations Act, 2021, Public Law 117–31, 135 Stat. 309, 318 (July 30, 2021), are exempt from paying the filing fee for Form I– 360.138 DHS believes this population, who assisted the United States Government often at risk to themselves and their families, should benefit from an immigration process that imposes a minimal financial burden. In addition, because the statutes provide that the special immigrant visa petition is fee exempt, DHS believes that it is consistent with those laws to provide fee exemptions for these additional forms that are generally filed with or associated with the special immigrant visa petition. 137 See U.S. Dep’t of Homeland Security, ‘‘DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals as They Resettle in the U.S.’’ (Nov. 8, 2021), available at https:// www.dhs.gov/news/2021/11/08/dhs-announces-feeexemptions-streamlined-processing-afghannationals-they-resettle. 138 The Emergency Security Supplemental Appropriations Act, 2021, Public Law 117–31, 135 Stat. 309, 318 (July 30, 2021), removed the requirement that the principal noncitizen have a petition for special immigrant visa (SIV) classification approved, in order for the surviving spouse and/or children of the principal noncitizen to apply to obtain SIVs, and replaced it with the requirement that the principal noncitizen must have submitted an application for Chief of Mission (COM) approval under section 1244 of Public Law 110–181, 122 Stat. 3 (Jan. 28, 2008), section 602(b) of the Afghan Allies Protection Act of 2009, Title VI of Public Law 111–8, 123 Stat. 524, 807 (Mar. 11, 2009), or section 1059 of the National Defense Authorization Act for Fiscal Year 2006, Public Law 109–163, 119 Stat. 3136 (Jan. 6, 2006) which included the noncitizen as an accompanying spouse or child, or the principal noncitizen had completed the special immigrant employment requirements at the time of their death. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 9. Special Immigrant Juveniles DHS currently fee exempts Form I– 360 139 for Special Immigrant Juveniles (SIJs) and provides them eligibility to file a fee waiver for Form I–485 and associated forms 140 as well as for a naturalization application.141 Upon classification as an SIJ, a noncitizen may be eligible to apply for adjustment of status to LPR if an immigrant visa number is immediately available. See INA sec. 245(h), 8 U.S.C. 1255(h). DHS is now proposing to fee exempt SIJs for all forms through final adjudication of the adjustment of status application, which will include Form I–485 and associated forms. Proposed 8 CFR 106.3(b)(1). SIJ petitioners and recipients are youth who have suffered abuse, neglect, or abandonment by one or both parents, and DHS believes that most SIJs have no means to pay the fees for these forms. Congress, in recognizing the vulnerability of these youth, has afforded special protections to this population, including access to federally funded assistance through the Unaccompanied Refugee Minors program.142 Currently, SIJs are not required to provide evidence of household income when applying for a fee waiver, and many are in the foster care system or full-time students or both, without an ability to work.143 For these reasons, most SIJs are eligible for a fee waiver. DHS is proposing to fee exempt SIJs through final adjudication of Form I–485 to recognize the financial and personal situation of most SIJs, to reduce the burden on SIJs to request a fee waiver, and to reduce the burden on USCIS of adjudicating SIJ fee waivers that are generally approved. 10. Temporary Protected Status The fee for an Application for Temporary Protected Status (Form I– 821) for TPS registrations is limited to $50 by statute. See INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B). In addition, TPS applicants are eligible for fee waivers for any forms submitted based on the TVPRA.144 DHS is not proposing any additional fee exemptions or fee waivers for this population. DHS, however, is proposing to remove the fee exemption for Form I–765 filed 139 8 CFR 103.7(b)(1)(i)(T)(3) (Oct. 1, 2020). CFR 103.7(c)(4)(iii) (Oct. 1, 2020). 141 8 CFR 103.7(c)(3)(xiii) (Oct. 1, 2020). 142 See 8 U.S.C. 1232(d)(4)(A). 143 See USCIS, Instructions for Request for Fee Waiver, page 7, available at https://www.uscis.gov/ sites/default/files/document/forms/i-912instr.pdf (last viewed June 1, 2021). 144 See title II, subtitle A, sec. 201(d)(3), Public Law 110–457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7); 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020). 140 8 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 463 by initial TPS applicants under age 14 and over age 65 for initial EAD requests. See proposed 8 CFR 244.6(b). Currently, initial TPS applicants under age 14 and over age 65 are exempt from paying the fee for Form I–765 for initial EAD requests. See 8 CFR 244.6(b) (Oct. 1, 2020).145 When the regulations implementing TPS were first published in 1991, the INS required all TPS applicants to file Form I–765 for information collection purposes, even if an applicant did not wish to request employment authorization.146 At that time, INS did not issue EADs to minor children or persons over age 65.147 TPS applicants who did not wish to request employment authorization were not required to pay the fee for Form I–765. Initially, only nationals of El Salvador ages 14–65 who requested employment authorization were required to pay the fee for Form I–765. However, on April 25, 1995, INS revised Form I–765 to remove the El Salvador specific language from the form instructions and required all TPS applicants ages 14–65 who were requesting employment authorization to pay the fee for Form I– 765, regardless of nationality, although fee waivers were available. The regulatory language was updated to reflect this change in 1999.148 USCIS no longer requires TPS applicants to file Form I–765 for information collection purposes, and only requires it if the TPS applicant wants an EAD. Persons applying for TPS who do not wish to request employment authorization need only file Form I– 821.149 The reason that the INS fee exempted a Form I–765 filed by initial TPS applicants under age 14 and over age 65 from a fee no longer exists. Thus, DHS is proposing that all TPS applicants requesting employment authorization must pay the filing fee for Form I–765 or request a fee waiver. 145 The exemption is not codified, except by implication by 8 CFR 244.6, which states that applicants between the ages of 14 and 65 who are not requesting authorization to work will not be charged a fee for an application for employment authorization. 146 See 56 FR 619 (Jan. 7, 1991), as amended at 56 FR 23497 (May 22, 1991) (codifying 8 CFR 240.6 that provided that the fee for Form I–765 was not charged except for nationals from El Salvador between the ages of 14 to 65 who requested an EAD). 147 See 56 FR 23495 (May 22, 1991). 148 See 64 FR 4780–4781 (Feb. 1, 1999). 149 The October 17, 2017, revision of Form I–821 made concurrent filing of Form I–765 optional. The May 31, 2018, revision of Form I–765 removed the instruction appearing on earlier iterations indicating that Form I–765 must be filed with Form I–821 to register for TPS, regardless of whether the applicant was requesting employment authorization. E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 464 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 11. Asylum Seekers and Asylees DHS is not proposing any changes to fee exemptions or fee waivers for asylum seekers or asylees and is proposing to codify that there is no fee for an Application for Asylum and for Withholding of Removal (Form I–589). Proposed 8 CFR 106.2(a)(27). See Table 13C, Categories of Requestors and Related Forms Eligible for Fee Waivers under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7), and Fee Exemptions (Includes Current Eligibility and Proposed Changes). In the 2020 fee rule DHS proposed a $50 fee for Form I–589, Application for Asylum and for Withholding of Removal, for when that form is filed with USCIS (‘‘affirmative asylum applications’’). See 8 CFR 106.2(a)(20) (Oct. 2, 2020). The U.S. Government had never previously charged a fee for an asylum request and used fees from other form types to fund the operations involved in processing asylum claims. However, in the 2020 fee rule DHS decided to impose an asylum fee of $50, and provided that the fee would not be waivable but exempted an unaccompanied child in removal proceedings from the fee. 8 CFR 106.2(a)(20) (Oct. 2, 2020). A large number of commenters on the 2020 fee rule generally opposed charging asylum applicants a fee. See 85 FR 46844. Commenters stated that asylum applicants have few economic resources, the few resources that they do have are necessary for survival, and they are often financially dependent on their family members. Thus, the commenters stated that the asylum fee would create an additional burden on asylum applicants and their families, be detrimental to survivors of torture, and further endanger asylum seekers’ health and safety. After further consideration of the comments received on the 2020 fee rule’s asylum fee, asylum applicants’ lack of resources and the burdens that they face, DHS proposes to remove the $50 fee for Form I–589. Proposed 8 CFR 106.2(a)(27). DHS currently does not collect the $50 fee for Form I–589 as a result of the injunction against the 2020 Fee Rule discussed above. While INA sec. 208(d)(3), 8 U.S.C. 1158(d)(3), specifically authorizes a fee for the consideration of an asylum application in the discretion of the Secretary, it does not require such fees, and further provides that the Secretary may set adjudication and naturalization fees in accordance with INA sec. 1356(m), 8 U.S.C. 1356(m). DHS believes that the fee could deter asylum seekers from seeking protection because of an inability to pay the fee. Asylum VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 applicants, many of whom arrive in the United States with few resources and lack financial support, may be unable to pay the fee (particularly considering that most are unable to legally seek employment until after the approval of their application for employment authorization based on their pending asylum application, which cannot be filed together), or would choose between paying the fee and paying for basic needs with the few resources they may have arrived with or can attain before being allowed to legally seek employment in the United States. DHS recognizes the vulnerable situations of individuals who apply for asylum and has decided not to impose an asylum application fee, so as to not make affordability a consideration for a person requesting asylum. DHS will also continue to provide a fee exemption for the initial filing of Form I–765 for persons with pending asylum applications and those who were granted asylum (asylees). Proposed 8 CFR 106.2(a)(43)(iii)(D) and (G).150 In the 2020 fee rule, DHS required applicants who have applied for asylum or withholding of removal before EOIR (defensive asylum) or filed Form I–589 with USCIS (affirmative asylum), to pay the fee for initial filings of Form I–765. See 8 CFR 106.2(a)(32) (Oct. 2, 2020). Previously, USCIS had exempted applicants with pending asylum applications who are filing their first EAD application under the 8 CFR 274a.12(c)(8) eligibility category from the Form I–765 fee if the applicant submitted evidence of a pending asylum application and followed other instructions. However, in the 2020 fee rule, DHS determined that continuing to exempt this population from paying the Form I–765 fee would increase the proposed fee by $10 to fund the cost of EADs for asylum applicants, and required initial applicants with pending asylum claims to pay a $490 Form I–765 fee to keep the fee lower for all feepaying EAD applicants. Many commenters on the 2020 fee rule opposed the change to charge asylum applicants for their first Form I– 765, Application for Employment Authorization. 85 FR 46851–46853. The commenters wrote that: people who cannot work cannot afford to pay their asylum fees and may work illegally; charging individuals who are not authorized to work to pay a fee to acquire work authorization is counterintuitive; asylum seekers are in 150 Except for individuals applying under special procedures pursuant to the settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 dire financial situations; requiring a fee for authorization to work will worsen the already precarious situation of a vulnerable population; and the fee will act as an unjust deterrent for asylum seekers. As a result of the economic challenges faced by asylum seekers, DHS has determined that it agrees that charging asylum seekers for an initial work authorization application could prevent them from obtaining lawful employment, and that the EAD fee is unduly burdensome for asylum seekers. Therefore, DHS proposes to retain the fee exemption for applicants who have applied for asylum or withholding of removal before EOIR (defensive asylum) or filed Form I–589 with USCIS (affirmative asylum) for initial filings of Form I–765. See proposed 8 CFR 106.2(a)(43)(iii)(D) and (G). As explained below, DHS also proposes that the fee for refugee travel documents for asylees and LPRs who obtained such status as asylees will be linked to the DOS fee for a U.S. passport. Proposed 8 CFR 106.2(a)(7)(i) and (ii). DHS also proposes to continue charging a fee for asylees with pending adjustment of status applications who are requesting advance parole. Proposed 8 CFR 106.2(a)(7)(iii). Although asylees and refugees are in some respects similarly situated populations, certain differences justify DHS’s decision not to exempt asylees from paying the fee for refugee travel documents or advance parole. Unlike refugees, who are required to apply to adjust status after they have been physically present in the United States for at least one year, asylees are not required to apply for adjustment of status, although they may do so. In addition, because asylees are a larger population than refugees, DHS determined that transferring to other applicants and petitioners the costs of adjudicating requests from asylees for refugee travel documents and advance parole would be overly burdensome to other fee payers. DHS believes that asylees are better able to time the filing of Form I–485 for adjustment of status to LPR or an associated benefit request with their ability to pay the fees or request a fee waiver. DHS proposes to continue fee waiver eligibility for asylees filing Forms I– 290B, I–765 for EAD renewal, and I– 485. Proposed 8 CFR 106.3(a)(3)(ii)(C) and (E) and (a)(3)(iv)(C). DHS does not propose new fee exemptions or fee waivers for asylum applicants or asylees in this rulemaking because most forms used by this population are already fee exempt or fee waiver eligible. DHS also considered the number of asylum-based filings made each year and decided that the transfer of the costs of such filings E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules to other petitions and applications if these filings were fee exempt resulted in too excessive a shift to fee payers to justify. 12. Refugees khammond on DSKJM1Z7X2PROD with PROPOSALS2 DHS is continuing to provide a fee exemption for the initial filing of Form I–765 for persons who were admitted or paroled as refugees. Proposed 8 CFR 106.3(b)(9)(iii). This long-standing policy is consistent with Article 17(1) of the 1951 Convention Relating to the Status of Refugees (as incorporated in the 1967 Protocol Relating to the Status of Refugees), which states, ‘‘The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wageearning employment.’’ 151 DHS also proposes to provide a fee exemption for persons admitted or paroled as refugees who submit Form I– 765 to renew or replace their EAD. Proposed 8 CFR 106.3(b)(9)(iii). Currently, refugees may request a fee waiver for such renewal and replacement applications. EAD renewal and replacement filing volume is low, and DHS must expend effort to adjudicate fee waiver requests, which are generally approved. DHS believes that exempting all refugee Form I–765 filings is consistent with the principles of the 1951 Refugee Convention cited above. DHS further proposes to provide a fee exemption for the filing of Form I–131, Application for Travel Document, for persons admitted or paroled as refugees, including LPRs who obtained such status as refugees in the United States. Proposed 8 CFR 106.3(b)(9)(i). Refugees are by definition a vulnerable population.152 Congress has recognized 151 Convention Relating to the Status of Refugees, art. 17(1), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150. The United States is not a party to the 1951 Refugee Convention, but the United States is a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, which incorporates Articles 2 to 34 of the 1951 Convention. See INS v. Stevic, 467 U.S. 407, 416 & n.9 (1984). 152 See INA sec. 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining the term ‘‘refugee’’ as ‘‘any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 that many refugees are more likely than other immigrant populations to lack economic security and determined that it is in the interests of the United States to provide them with support and assistance on their path to selfsufficiency. For example, INA sec. 207(c)(3) specifies that the public charge ground of inadmissibility in INA sec. 212(a)(4) does not apply to refugees. And section 412 of the INA, 8 U.S.C. 1522, authorizes the provision of a variety of benefits and support services to refugees, including employment training and placement, English language training, cash assistance, and medical assistance. In light of these considerations, DHS has historically exempted refugees from paying fees for most applications and petitions for immigration benefits, excluding naturalization, for which a fee waiver is available. DHS now proposes to align Form I–131 with this long-standing policy. For the same reasons, DHS also proposes to fee exempt the Application for Carrier Documentation (Form I– 131A) for refugees, persons paroled as refugees (see INA sec. 212(d)(5)(B), 8 U.S.C. 1182(d)(5)(B)), and LPRs who obtained such status as refugees. See 8 CFR 106.3(b)(9)(ii). 13. Person Who Served Honorably on Active Duty in the U.S. Armed Forces Filing Under INA Sec. 101(A)(27)(K) An immigrant who has served honorably on active duty in the U.S. armed forces of the United States after October 15, 1978, after original lawful enlistment outside the United States (under a treaty or agreement in effect on October 1, 1991) for a certain period of time and the spouses and children of such immigrants may be granted special immigrant status upon recommendation under the executive department. INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27). These applicants may file for naturalization under INA sec. 328, 8 U.S.C 1439. USCIS does not charge a fee to military naturalization applicants because such fees are prohibited by statute. See INA sec. 328(b)(4), 8 U.S.C. 1439(b)(4). Other forms for active or former military service members are or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion’’). PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 465 also exempt from fees. See, e.g., 8 CFR 103.7(b)(1)(i)(AAA) and (EEE) (Oct. 1, 2020). On July 2, 2021, Secretary Mayorkas and Secretary of Veterans Affairs Denis McDonough announced a new initiative to support our Nation’s noncitizen service members, veterans, and the immediate family members of service members. The initiative recognizes the profound commitment and sacrifice that service members and their families have made to the United States and that DHS agencies would review the policies to remove barriers to naturalization for those eligible, and improve access to immigration services.153 As part of this initiative on November 19, 2021, USCIS issued guidance to provide fee exemptions for Form I–131 concurrently filed with N–400 for applicants who are residing outside the United States and seeking naturalization.154 Because this population submits a low number of forms, and to be consistent with other fees related to military applicants, DHS is proposing to codify a fee exemption for Forms I–131 (parole requests). In addition, DHS is proposing to add fee exemptions for Forms I–360, I–485, and I–765 (initial request) for military applicants. 14. Summary of Proposed Fee Exemptions The following Table 13A provides a summary of current fee exemptions under INA sec. 245(l)(7). Table 13B provides a list of proposed additional fee exemptions, and the impact on forms that no longer require a fee waiver for these categories of requestors because they will be fee exempt. Table 13C provides a list of all fee exemptions and waivers that includes both the current provisions and the proposed additions. BILLING CODE 9111–97–P 153 See DHS, VA Announce Initiative to Support Noncitizen Service Members, Veterans, and Immediate Family Members (July 2, 2021), available at https://www.dhs.gov/news/2021/07/02/dhs-vaannounce-initiative-support-noncitizen-servicemembers-veterans-and-immediate. 154 See USCIS Policy Manual, Volume 12, Citizenship and Naturalization, Part I Military Members and their Families, Chapter 5, Application and Filing for Service Members (INA sections 328 and 329) [12 USCIS–PM I.5], available at https:// www.uscis.gov/policy-manual/volume-12-part-ichapter-5. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • Form 1-914, Supplement A • Form 1-914, Supplement B • Form 1-765 (initial 8 CFR 274a.12(a)(16) fee exempt for principals only) khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Form 1-918 • • • • • • • • • • • • • • • • Form 1-192 Form 1-193 Form l-290B Form 1-485 Form 1-539 Form 1-601 Form 1-765 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-131 Form 1-192 155 See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T) (T nonimmigrant status for victims of severe forms of trafficking in persons). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.035</GPH> 466 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 • • • • • • • • • • • • • Form 1-360 • • Form 1-765 • (initial category • (c)(31) generally • fee exempt for • principals • Only) 159 • • • • • • • • • • 156 See INA sec. 101(a)(15)(U) 8 U.S.C. 1101(a)(15)(U) (U nonimmigrant status for victims of qualifying criminal activity). 157 No initial fee for principals who receive an EAD incident to status. 158 This category includes VAWA self-petitioners and derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those otherwise self-petitioning for VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Form 1-485 Form 1-539 Form 1-601 Form 1-765 Form 1-929 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-131 Form 1-212 Form l-290B Form 1-485 Form 1-601 Form I-765 Form 1-824 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-751 Form l-290B immigrant classification under INA sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See INA sec. 204(a); 8 U.S.C. 1154(a). 159 Currently, VAWA self-petitioners may check a box on Form I–360 requesting a category (c)(31) EAD upon approval of the self-petition. This EAD is currently fee exempt. If the self-petitioner does not check this box, they must file a Form I–765 to request work authorization under 8 CFR PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 274a.12(c)(14) designation or under 8 CFR 274a.12(c)(9) if applicable. The self-petitioner may also file a Form I–765 to request a category (c)(31) EAD if not initially requested on the Form I–360. All self-petitioners and derivatives filing a renewal or replacement request must file a Form I–765 with a fee or fee waiver request. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.036</GPH> • Form 1-918, Supplement A • Form 1-918, Supplement B • Form 1-765 (initial 8 CFR 274a.12(a)(19) fee exempt for principals only)1s7 467 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 160 See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8 U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D). 161 See INA sec. 101(a)(51)(D) and (E); 8 U.S.C. 1101(a)(51)(D) and (E). The proposed fee exemption VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-131 Form 1-212 Form l-290B Form 1-485 Form 1-601 Form 1-765 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-601 Form 1-765 Form 1-881 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-601 Form 1-765 Form N-300 Form N-336 Form N-400 for Form I–765 for these categories includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. 162 See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The proposed fee exemption for PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 Form I–765 for this category includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.037</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 468 • Form I-765V 165 • Form N-565 • Form N-600 • Form N-600K Not Applicable • Form 1-360 • Form 1-485 (for certain Special Immigrant Afghans) 166 • Form 1-765 (initial filing for certain Afghans) 167 • Form 1-601 (for certain Special Immigrant Afghans) 168 • • • • • • • • • • • • • Form 1-131 Form 1-212 Form I-290B Form 1-485 Form 1-601 Form 1-765 Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K • Form 1-360 • • • • • • Form 1-131 Form I-290B Form 1-485 Form 1-601 Form 1-765 Form N-300 163 Also includes children of battered spouses and children of an LPR or U.S. citizen and parents of battered children of an LPR or U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4). 164 See INA sec. 106; 8 U.S.C. 1105a. The proposed fee exemption for Form I–765 for these categories includes all initial, renewal, and replacement EADs. If the abused spouses of A, E– 3, G, and H Nonimmigrants are able to file under another eligible category, the applicant may be eligible for a fee waiver. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 165 The fee exemption for Form I–765V for this category includes all initial, renewal, and replacement EADs. 166 Afghan nationals and their derivative beneficiaries paroled into the United States on or after July 30, 2021 and applying to adjust status to permanent residence based on classification as Afghan special immigrants as part of the temporary Operation Allies Welcome (OAW) program. 167 Afghan nationals and their derivative beneficiaries who were paroled into the United PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 469 States on or after July 30, 2021. This is part of the temporary OAW program. 168 Afghan nationals and their derivative beneficiaries paroled into the United States on or after July 30, 2021 who file Form I–601 associated with Form I–485, if filing as an Afghan Special Immigrant. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.038</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Form 1-765 (initial TPS applicant, under 14 and over 65 who is requesting an initial EAD.) 170 • Form 1-821 (only rere istration • Forml-131 (Only if an asylee applying for a Refugee Travel Document or advance parole filed Form 1-485 on or after July 30, 2007, paid the Form 1-485 application fee required, and Form 1-485 is still pending.) • Form 1-589 • Form 1-602 • Form 1-730 • Form 1-765 (initial request by asylees and initial request by as lum 169 See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and 1255(l)(7). This category includes applicants and recipients of TPS. 170 Note DHS is proposing to end the fee exemption for Form I–765 initial EAD requests filed VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • Form N-400 • Form N-470 • Form N-565 • Form N-600 • Form N-600K • Biometrics Fee • Form 1-131 • Form l-290B • Form 1-601 • Form 1-765 • Form 1-821 • • • • • • • • • • Form l-290B Form 1-485 Form 1-765 (renewal request) Form N-300 Form N-336 Form N-400 Form N-470 Form N- 565 Form N-600 Form N-600K by initial TPS applicants under age 14 and over age 65. 171 These applicants are eligible for naturalization under INA sec. 328; 8 U.S.C. 1439. Most military PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 applicants are eligible for naturalization without lawful permanent residence under INA sec. 329; 8 U.S.C. 1440. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.039</GPH> 470 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 471 Table f3A: <t~rr,entFor~~ Eligtble f o;r F~i Waivers undtf INA stc~ Z45(1)(7),. 8 ltS.C. 1255(1)p), and Fee Exemption~ · · i ;, " honorably ()it active khammond on DSKJM1Z7X2PROD with PROPOSALS2 dQty in the{tS. armed forces nfi11g underINA sec. U)l a 27 K 171 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.040</GPH> U.S. armed. for . . service tne1'lbers, including persons who served· applicants with a pending Form 1589 • Form 1-590 • Form l-290B • Form 1-485 • Form 1-765 • Form 1-602 • Form N-300 • Form N-336 • Form N-400 (initial request) • Form N-470 • Form N-565 • Form N-600 • Form N-600K • Form N-400 • Form N-300 • Form N-336 • Form N-470 • Form N-600 • Form N-565 • Form N-600K • Form 1-131 (for service members filing concurrently with an N-400) Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Form 1-193 • Form 1-290B (only if filed for any benefit request filed before adjusting status or for Form 1485) • Form 1-485 • Form 1-539 • Form 1-601 • Form 1-765 176 • Form 1-192 (only if filed before Form 1-485 is filed) • Form 1-193 (only if filed before Form 1-485 is filed) • Form 1-290B (only if filed before Form 1-485 is filed) • Form 1-539 (only if filed before Form 1-485 is filed) • Form 1-765 (initial 8 CFR 274a.12(a)(20) and initial (c)(14) fee exempt for principals and derivatives only if filed before Form 1-485) 172 This table includes exemptions and fee waivers that are required under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7) and other categories of immigrants for which DHS is proposing additional fee exemptions. This table includes only those exemptions that DHS is required to provide under this statute, and it does not include all USCIS benefit requests or groups for which DHS currently provides or is proposing to provide an exemption in this rule or by policy. See regulatory text for all other fee exemptions and fee waivers. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 173 This column lists all the additional fee exemptions that are being proposed. DHS would continue to maintain all the fee exemptions currently provided under Table 13A, column ‘‘Current Fee Exemptions.’’ 174 This column lists all the fee waivers that would still be available after some forms will be fee exempt as listed in ‘‘Current Fee Exemptions’’ column. PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 • • • • • • • Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K • Form 1-131 • Form 1-192 (only if filed with or after Form 1-485 is filed) • Form 1-193 (only if filed with or after Form 1-485 is filed) • Form 1-290B (only if filed with or after Form 1-485 is filed) • Form 1-485 • Form 1-601 • Form 1-765 (renewal and replacement requests) • Form 1-929 • Form N-300 175 See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T) (T nonimmigrant status for victims of severe forms of trafficking in persons). 176 The proposed fee exemption for T nonimmigrants filing Form I–765 includes all initial, renewal and replacement EADs filed at the nonimmigrant and adjustment of status stages. 177 See INA sec. 101(a)(15)(U); 8 U.S.C. 1101(a)(15)(U) (U nonimmigrant status for victims of qualifying criminal activity). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.041</GPH> 472 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 178 This category includes VAWA self-petitioners and derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those otherwise self-petitioning for immigrant classification under INA sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See INA sec. 204(a); 8 U.S.C. 1154(a). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 179 Under this proposed rule, the category (c)(31) EAD provided through Form I–360 will continue to be fee exempt. In addition, all Form I–765s filed for an initial 8 CFR 274a.12(c)(9), 8 CFR 274a.12(c)(14), and an initial category (c)(31) EAD will also be fee exempt for both self-petitioners and derivatives. PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 • • • • • • • Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form I-131 Form I-212 Form I-290B Form I-485 Form I-601 Form I-765 (renewal and replacement requests) Form I-824 FormN-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 • Form N-600K • • • Form I-751 Form I-290B Form N-300 180 See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8 U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.042</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Form I-131 (only when Form I360 and Form I-485 are concurrently filed or pending) • Form I-212 (only when Form I360 and Form I-485 are concurrently filed or pending) • Form I-290B (if filed with a standalone Form I-360, then fee exempt if filed to motion or appeal Form I-360) • Form I-290B (if Form I-360 and Form I-485 are concurrently filed, then fee exempt if filed for any benefit request filed before adjusting status or for Form I-485) • Form I-485 (only if filed concurrently with Form I-360) • Form I-601 (only when Form I360 and Form I-485 are concurrently filed or pending) • Form I-765 (initial 8 CFR 274a.12(c)(9), initial 8 CFR 274a.12 (c)(l4), and initial category (c)(31) fee exempt for rinci als and derivatives 179 • Form I-290B (only when filed for Form I-751) • • • • • • • • • • • 473 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • • • • • • • • • khammond on DSKJM1Z7X2PROD with PROPOSALS2 • • 181 See INA sec. 101(a)(51)(D) and (E); 8 U.S.C. 1101(a)(51)(D) and (E). The proposed fee exemption for Form I–765 for these categories includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • • • • • Form 1-131 • Form 1-212 • Form 1-290B (only if filed for any • benefit request filed before • adjusting status or for Form I• 485) • Form 1-485 • Form 1-601 • Form 1-765 Form 1-765 (submitted under 8 • CFR 274a.12(c)(10)) • Form 1-881 • Form 1-601 • • • • • Form 1-601 Form 1-765 (initial 8 CFR 274a.12(c)(10) only) • • • • • • • 182 See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The proposed fee exemption for Form I–765 for this category includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-290B Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form 1-765 (renewal and replacement requests) FormN-300 FormN-336 Form N-400 FormN-470 FormN-565 FormN-600 Form N-600K 183 Also includes children of battered spouses and children of an LPR or U.S. citizen and parents of battered children of an LPR or U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.043</GPH> 474 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • • • • • • • • • • Form 1-131 • Form l-290B (only if filed for any • benefit request filed before • adjusting status or for Form 1• 485) • • Form 1-485 • • Form 1-601 • • Form 1-765 • Not applicable • • • • • • Not Applicable • • • khammond on DSKJM1Z7X2PROD with PROPOSALS2 • • • • 184 See INA sec. 106; 8 U.S.C. 1105a. The proposed fee exemption for Form I–765 for these categories includes all initial, renewal, and replacement EADs. If the abused spouses of A, E– VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 3, G, and H Nonimmigrants are able to file under another eligible category, the applicant may be eligible for a fee waiver. PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 Form 1-290B Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form l-290B Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Biometrics Fee Form 1-131 Form 1-290B Form 1-601 Form 1-765 Form 1-821 Form 1-290B Form 1-485 Form 1-765 (renewal request) Form N-300 Form N-336 Form N-400 Form N-470 185 See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and 1255(l)(7). This category includes applicants and recipients of TPS. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.044</GPH> • Form 1-131 • Form 1-212 • Form 1-290B (only if filed for any benefit request filed before adjusting status or for Form 1485) • Form 1-485 • Form 1-601 • Form I-765 (initial) 475 476 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • • • • • • • • • • • • • • Form 1-765 (renewal and replacement request) • Form 1-131 • Form 1-131A • • • • Form 1-131 Form 1-360 Form 1-485 Form 1-765 (initial request for service member) Form N-600 Form N-600K Form 1-290B Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K Form N-300 Form N-470 Form N-565 Table i~C: Fonrts Eligible for Fee \Vaiyets un<let jNA 5ec. 245(1)(7), 8{J.S.C. 1255(1)(7); a!}d Fee.Exemptions, as of Effective Date of this Pr<lposedRule 186 These applicants are eligible for naturalization under INA sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for naturalization without VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 lawful permanent residence under INA sec. 329; 8 U.S.C. 1440. PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 187 See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T)(T nonimmigrant status for victims of severe forms of trafficking in persons). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.046</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 A Form l-290B Form N-300 Form N-336 Form N-400 EP04JA23.045</GPH> • Form 1-914, Supplement • • • • • Form 1-914, Supplement B • Form 1-131 • Form 1-192 • Form 1-193 • Form l-290B (only if filed for any benefit request filed before adjusting status or for Form 1-485) • Form 1-485 • Form 1-539 • Form 1-601 • Form 1-765 (initial, renewal and replacement re uests • Form 1-918 • Form 1-918, Supplement A • Form 1-918, Supplement B • Form 1-192 (only if filed before Form 1-485 is filed) • Form 1-193 (only if filed before Form 1-485 is filed) • Form l-290B (only if filed before Form 1-485 is filed) • Form 1-539 (only if filed before Form 1-485 is filed) • Form 1-765 (initial 8 CFR 274a.12(a)(20) and initial (c)(14) fee exempt for principals and derivatives only if filed before Form 1-485 • Form 1-360 • Form 1-131 (only when Form 1-360 and Form I- VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4725 • • • 477 Form N-565 Form N-600 Form N-600K • Form 1-192 (only if filed with or after Form 1-485 is filed) • Form 1-193 (only if filed with or after Form 1-485 is filed) • Form l-290B (only if filed with or after Form 1-485 is filed) • Form 1-485 • Form 1-601 • Form 1-765 (renewal and replacement requests) • Form 1-929 • Form N-300 • Form N-336 • Form N-400 • Form N-470 • Form N-565 • Form N-600 • Form N-600K • Form 1-131 • Form 1-212 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.047</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • • • • • • khammond on DSKJM1Z7X2PROD with PROPOSALS2 • VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 485 are concurrently filed or pending) Form 1-212 (only when Form 1-360 and Form 1485 are concurrently filed or pending) Form l-290B (if filed with a standalone Form 1-360, then fee exempt if filed to motion or appeal Form 1360) Form l-290B (if Form 1360 and Form 1-485 are concurrently filed, then fee exempt if filed for any benefit request filed before adjusting status or for Form 1-485) Form 1-485 (only if filed concurrently with Form 1360) Form 1-601 (only when Form 1-360 and Form 1485 are concurrently filed or pending) Form 1- 765 (initial 8 CFR 274a.12(c)(9), initial 8 CFR 274a.12 (c)(14), and initial category (c)(31) fee exempt for principals and derivatives 190 Form l-290B (only when filed for Form 1751) Frm 00078 Fmt 4701 Sfmt 4725 • Form 1-485 • Form 1-601 • Form 1-765 (renewal and replacement requests) • Form 1-824 • Form N-300 • Form N-336 • Form N-400 • Form N-470 • Form N-565 • Form N-600 • Form N-600K • • • • • • • • • Form 1-751 Form l-290B Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.048</GPH> 478 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 Jj/"'•"·1!'.llf:01':,•:1 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 • • • • • • • Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K • Form 1-765 (submitted under 8 CFR 274a.12(c)(10)) • Form 1-881 • Form 1-601 • • • • • • • Form N-300 Form N-336 Form N-400 Form N-470 Form N-565 Form N-600 Form N-600K • Form 1-601 • Form 1-765 (initial 8 CFR 274a.12(c)(10) only) • Form l-765V 196 • Form 1-765 (renewal and replacement requests) • Form N-300 • Form N-336 • Form N-400 • Form N-470 • Form N-565 • Form N-600 • Form N-600K Not applicable • Form 1-212 • Form l-290B (only if filed for any benefit request • • • • Frm 00079 Fmt 4701 Sfmt 4725 Form l-290B Form N-300 Form N-336 Form N-400 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.049</GPH> ';/i';'\,SIN.:::t.\:;;I:'.tl • Form 1-131 • Form 1-212 • Form l-290B (only if filed for any benefit request filed before adjusting status or for Form 1-485) • Form 1-485 • Form 1-601 • Form 1-765 479 480 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • Form N-565 • Form N-600 • Form N-600K • Form 1-131 • Form l-290B • Form l-290B (only if filed • Form N-300 for any benefit request • Form N-336 filed before adjusting • Form N-400 status or for Form 1-485) • Form N-470 • Form 1-360 • Form N-565 • Form 1-485 • Form N-600 • Form 1-601 • Form N-600K • Form 1-765 • Form 1-821 (only re• Biometrics Fee registration) • Form 1-131 • Form l-290B • Form 1-601 • Form 1-765 • Form 1-821 • Form 1-131 (Only if an • Form l-290B asylee applying for a • Form 1-485 Refugee Travel Document • Form I-765 (renewal or advance parole filed request) Form 1-485 on or after • Form N-300 July 30, 2007, paid the • Form N-336 Form 1-485 application fee • Form N-400 required, and Form 1-485 • Form N-470 is still pending.) • Form N-565 • Form 1-589 • Form N-600 • Form 1-602 • Form N-600K • Form 1-730 • Form 1-765 (initial request by asylees and initial request by asylum applicants with a pending Form I-589 • Form I-290B • Form N-300 • Form I-131A • Form N-336 • Form I-485 • Form N-400 • Form I-590 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.050</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 • • • • filed before adjusting status or for Form 1-485) Form 1-360 Form 1-485 Form 1-765 (initial) Form 1-601 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • Form 1-730 • Form 1-765 (initial, renewal, and replacement request) • Form N-565 • Form N-600 • Form N-600K • • • • • Form N-300 • Form N-470 • Form N-565 khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C 188 See INA sec. 101(a)(15)(U); 8 U.S.C. 1101(a)(15)(U) (U nonimmigrant status for victims of qualifying criminal activity). 189 This category includes VAWA self-petitioners and derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those otherwise self-petitioning for immigrant classification under INA sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See INA sec. 204(a); 8 U.S.C. 1154(a). 190 Under this proposed rule, the category (c)(31) EAD provided through Form I–360 will continue to be fee exempt. In addition, all Form I–765s filed for an initial 8 CFR 274a.12(c)(9), 8 CFR 274a.12(c)(14), and an initial category (c)(31) EAD will also be fee exempt for both self-petitioners and derivatives. 191 See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8 U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D). 192 See INA sec. 101(a)(51)(D) and (E); 8 U.S.C. 1101(a)(51)(D) and (E). The proposed fee exemption for Form I–765 for these categories includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. 193 See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The proposed fee exemption for Form I–765 for this category includes all initial, renewal, and replacement EADs filed through final adjudication for adjustment of status. 194 Also includes children of battered spouses and children of an LPR or U.S. citizen and parents of battered children of an LPR or U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4). 195 See INA sec. 106; 8 U.S.C. 1105a. The proposed fee exemption for Form I–765 for these categories includes all initial, renewal, and replacement EADs. If the abused spouses of A, E– 3, G, and H Nonimmigrants are able to file under another eligible category, the applicant may be eligible for a fee waiver. 196 The fee exemption for Form I–765V for this category includes all initial, renewal, and replacement EADs. 197 See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and 1255(l)(7). This category includes applicants and recipients of TPS. 198 These applicants are eligible for naturalization under INA sec. 328; 8 U.S.C. 1439. Most military VerDate Sep<11>2014 21:38 Jan 03, 2023 Jkt 259001 C. Request for Comments DHS welcomes comment on the proposed changes to which categories of petitioners and applicants are exempt from the fees or which forms should be fee exempt, the annual and cumulative estimated transfer cost, requests to which costs should be shifted, and the reason as to why the particular group should be fee exempt. VIII. Other Proposed Changes in the FY 2022/2023 Fee Schedule A. Clarifying Dishonored Fee Check RePresentment Requirement and Fee Payment Method USCIS is proposing to clarify that it will not redeposit financial instruments returned as unpayable for a reason other than insufficient funds. See proposed 8 CFR 103.2(a)(7)(ii)(D). In the FY 2016/ 2017 fee rule, DHS amended the regulations regarding how USCIS treats a benefit request accompanied by fee payment (in the form of check or another financial instrument) that is subsequently returned as not payable. See 81 FR 73313–73315 (Oct. 24, 2016); 8 CFR 103.2(a)(7)(ii) and 103.7(a)(2). If a financial instrument used to pay a fee is returned as unpayable after one representment, USCIS rejects the filing and imposes a standard $30 charge. Id. In the preamble to the FY 2016/2017 fee rule, DHS stated that, to make sure a payment rejection is the result of insufficient funds and not due to USCIS applicants are eligible for naturalization without lawful permanent residence under INA sec. 329; 8 U.S.C. 1440. PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 error or network outages, USCIS (through the U.S. Department of the Treasury (Treasury)) will resubmit rejected payment instruments to the appropriate financial institution one time. See 8 CFR 103.2(a)(7)(ii)(D). DHS’s intent was to submit only checks that were dishonored due to insufficient funds because the Treasury check clearance regulations only permit an agency to redeposit a check that was dishonored due to insufficient funds.199 Although Treasury does not permit redeposit of checks dishonored for any other reason, some stakeholders have interpreted 8 CFR 103.2(a)(7)(ii)(D) as requiring DHS to redeposit any check that is returned as unpayable. Several petitioners have had fee payment checks dishonored because the petitioner (or law firms paying the fee on the petitioner’s behalf) have placed a fraud hold on their checking account, stopped payment on the check, or the check failed a third-party validation process. DHS appreciates the concerns about fraudulent or counterfeit checks and the impacts on petitioners and beneficiaries when the petitioner or their bank accidently or erroneously stop payments or dishonor checks. In the few cases where checks to USCIS have been dishonored due to anti-fraud mechanisms, USCIS has not seen an 199 See 31 CFR 210.3(b)(1)(i); National Automated Clearing House Association, 2019 NACHA Operating Rules & Guidelines: The Guide to the Rules Governing the ACH Network, Subsection 2.5.13.3 (limiting redepositing a check to those that are returned due to ‘‘Not Sufficient Funds,’’ ‘‘NSF,’’ ‘‘Uncollected Funds,’’ or comparable). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.051</GPH> • • • • Form 1-131 Form 1-360 Form 1-485 Form 1-765 (initial request for service member) Form N-336 Form N-400 Form N-600 Form N-600K 481 khammond on DSKJM1Z7X2PROD with PROPOSALS2 482 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules instance where the account was frozen as a result of actual, fraudulent activity, and the remitting institution has acknowledged its fault or error in dishonoring the fee checks. Nevertheless, USCIS is not responsible for ensuring that a petitioner’s or financial institution’s check writing procedures do not go awry and allowing resubmission of correctly rejected requests adds work to an already burdened USCIS intake system. In addition to most redeposits being impracticable and in violation of Treasury regulations, the reason DHS provided the check representment requirement in § 103.2(a)(7)(ii)(D) did not materialize, because in the almost five years since the requirement was codified, DHS has rejected no payment because of USCIS error or network outages. See 81 FR 73314.200 Therefore, to comply with the Treasury regulations, because representment of other dishonored checks is not permitted and futile, and representment has proven to not be necessary to protect the public from the Government failings that were feared when the provision was implemented, DHS is proposing in this rule that if a check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, USCIS will resubmit the payment to the remitter institution one time. If the remitter institution returns the instrument used to pay a fee as unpayable a second time, USCIS will reject the filing. See proposed 8 CFR 103.2(a)(7)(ii)(D). In addition, DHS proposes two changes to address stale or expired checks. First, DHS proposes that that it may reject a request that is accompanied by a check that is dated more than 365 days before the receipt date. Proposed 8 CFR 103.2(a)(7)(ii)(D). Second, DHS proposes that it will not be responsible for financial instruments that expire before they are deposited and USCIS may reject any filing for which a required payment cannot be processed due to expiration of the financial instrument. Proposed 8 CFR 106.1(d). Currently, USCIS policy is to reject a check that is dated more than a year before it is submitted. However, that policy is not codified, and DHS has been sued or threatened with litigation multiple times when a check that was dated more than a year before it was submitted was the basis of a rejection that caused the requestor to miss an 200 The final FY 2016/2017 fee rule stated, ‘‘To make sure that a payment rejection is the result of insufficient funds and not due to USCIS error or network outages, USCIS (through Treasury) will resubmit rejected payment instruments to the appropriate financial institution one time.’’ VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 important deadline. For example, USCIS has permitted an applicant to submit Form I–821 after the deadline 201 and adjudicated a Form I–485 filed after the applicant’s U nonimmigrant status had expired because the initial, timely filing was rejected because the applicant submitted a fee check that was more than one year old.202 While most personal and business checks do not expire, they become what is known as ‘‘stale dated’’ 6 months after they are written.203 In addition, many business entities provide that their checks expire after a certain period, such as 90 days, if not cashed, because they are concerned about the timeliness and accuracy of their accounting records if checks that they issue are valid for a longer period, notwithstanding that the Uniform Commercial Code (UCC) provides that a bank may delay access to the funds from or is not obligated to deposit, cash, honor, or pay a stale check.204 USCIS projects that it will receive an average of 6,510,442 IEFA non-premium fee payments per year.205 It is important that its requirements for payment instruments provide certainty and minimize the likelihood of a payment being dishonored. And, while USCIS has experienced delays in receipting requests due to the COVID pandemic, many requests have been received with checks that are very close to the check expiration date.206 To reduce dishonored payments and to alert those who submit fee checks to USCIS to monitor their expiration dates, DHS proposes to codify its policy of rejecting 365-day-old checks and checks where the expiration date on their face has passed to provide requestors with a reasonable amount of flexibility in case there are delays with their filing. Proposed 8 CFR 103.2(a)(7)(ii)(D); 201 See 8 CFR 244.17(a) (‘‘Applicants for periodic re-registration must apply during the registration period provided by USCIS.’’). 202 See 8 CFR 245.24(b)(2)(ii) (requiring the applicant to hold U nonimmigrant status at the time of application). 203 A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than 6 months after its date, but it may charge its customer’s account for a payment made thereafter in good faith. See UCC 4–404 (2002). 204 Id. See also Aliaga Medical Center, S.C. v. Harris Bank N.A., 21 NE3d 1203 (IL App (1st), Nov. 10, 2014) (holding that check expiration is generally governed by the account agreement between the bank and customer and the preprinted term ‘‘void’’ or phrase ‘‘void after 90 days,’’ on a check does not mean that the check cannot be presented, paid, and accounted for as a check in the normal course of the account’s regular operation). 205 See section V.B.1.b, Fee-Paying Volume, of this preamble. 206 See, e.g., USCIS Lockbox Updates, at https:// www.uscis.gov/news/alerts/uscis-lockbox-updates (Jan. 8, 2021). PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 106.1(d). Although commercial banks use a guideline of 6 months, rejecting a check that is dated more than a year earlier is also consistent with the time limit for a check issued by the U.S. Treasury. See 31 CFR 245.3(a) (Any claim on account of a Treasury check must be presented to the agency that authorized the issuance of such check within 1 year after the date of issuance of the check or within 1 year after October 1, 1989, whichever is later.). Rejection of a stale or expired check will not be mandatory, so USCIS will still have the authority to waive the check date requirements in exigent circumstances or on a per case basis, such as when surges in volume reduce USCIS’ ability to timely intake requests and deposit checks. For example, USCIS offered flexibility to lockbox filers whose initial filings were rejected solely because a filing fee payment that expired while the benefit request was awaiting processing between Oct. 1, 2020, and April 1, 2021.207 B. Payment Method Currently, USCIS uses the following payment methods: • For forms accepted at USCIS lockboxes 208—Check, money order, or credit card.209 • For online filing—Pay.gov payment submission which includes credit cards, debit cards and Electronic Funds Transfer using routing and account numbers. • For fees paid at a field office— Pay.gov only. • For immigrant fees paid by immigrants seeking entry into the United States with a visa—Pay.gov only. DHS also proposes to codify that USCIS may require that certain fees be paid using a certain payment method or that certain fees cannot be paid using a particular method. Proposed 8 CFR 106.1(b). For example, USCIS may require that a request be submitted by using Pay.gov, a secure portal that transmits an applicant’s payment information directly to the U.S. Treasury for processing, or may preclude the use of certain payment 207 See USCIS, ‘‘USCIS Announces Lockbox Filing Flexibilities,’’ available at https:// www.uscis.gov/news/alerts/uscis-announceslockbox-filing-flexibilities (June 10, 2021). 208 Lockboxes that specialize in the intake and deposit of multiple payment types receive about 53 percent of all USCIS filings. 209 USCIS recently launched a pilot program to test the acceptance of credit cards for payment of fees for benefit requests filed at service centers. See USCIS, ‘‘USCIS Announces Pilot Program for Credit Card Payments Using Form G–1450 When Filing Form I–485,’’ available at https://www.uscis.gov/ news/alerts/uscis-announces-pilot-program-forcredit-card-payments-using-form-g-1450-whenfiling-form-i-485 (June 2, 2021). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules types, such as cashier’s check and money orders for the payment of a particular form or when payments are made at certain offices. The proposed change provides that the payment method will be described in the form instructions (including for online filing) or by individual notice (a bill, invoice, appointment confirmation, etc.); thereby, requestors will be clearly notified of any limitations on the payment method for the request they are filing. However, this proposed change provides the authority prospectively, and USCIS is proposing no forms changes with this rule that will impose any specific limits on acceptable payments on the date this rule would take effect. The payment method for a particular form will be changed in the future only after the subject form instructions are revised in accordance with the Paperwork Reduction Act (PRA). For the 2020 fee rule, commenters wrote that requiring online or electronic payments would restrict immigration benefits for individuals who lack computer and internet access, that it is important to permit cashier’s checks and money orders because they are available to individuals without banking services such as a credit card, and that many immigrant households lack access to checking and savings accounts or they are unbanked or underbanked. 85 FR 46877. DHS has determined that any person who can purchase a cashier’s check or money order from a retailer can similarly purchase a prepaid debit card that can be used to pay their benefit request fee using USCIS Form G–1450 or the Pay.gov online payment platform. In addition, filers may split the fees between more than one credit card, and the credit card does not have to be the applicant’s if the owner of the credit card authorizes its use. Therefore, DHS believes that requiring the use of a check, credit, or debit card will not prevent applicants or petitioners from paying the required fees. While DHS does not permit the use of gift cards that cannot be reloaded, reloadable debit cards are available for purchase at most convenience, pharmacy, department, and grocery stores, or online.210 In addition, resources such as libraries offer free online services, access to information, and computers that the public may use to access forms and complete, print or submit them. Nevertheless, in evaluating future 210 See, for example, ‘‘Visa Prepaid Cards Easy to use and reloadable, Visa Prepaid cards go everywhere you do. No credit check or bank account needed.’’ https://usa.visa.com/pay-withvisa/find-card/get-prepaid-card (last viewed June 15, 2021). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 changes to acceptable means of payment for each immigration benefit request, DHS will consider the availability of internet access and different means of payment to the affected populations. Lockboxes that specialize in the intake and deposit of multiple payment types receive about 53 percent of all USCIS filings. However, the requirements and circumstances for the filing of some requests do not permit lockbox submission and intake, and the request must be filed at a particular office or in person. Various offices, such as field offices, embassies, and consulates, are limited in the method of payment that they can receive or process. Additionally, certain payment methods, such as checks or cash, require time-intensive procedures for cashiers and their supervisors to input, reconcile, and verify their daily receipts and deposits. Generally, Federal agency offices must deposit money that they receive on the same day that it is received. See 31 U.S.C. 3720(a); 31 CFR 206.5; U.S. Treasury, ‘‘Treasury Financial Manual’’ Vol. 1, Part 5, Chapter 2000, Section 2055.211 There are additional requirements and guidance for timely record keeping and redundancy in personnel that similarly increase workload and processing costs. See 31 U.S.C. 3302(e); U.S. Treasury, ‘‘Treasury Financial Manual’’ Vol 1, Part 5, Chapter 2000, Section 2030; see also GAO, GAO–14–704G ‘‘Standards for Internal Control in the Federal Government’’ (2014).212 The time that USCIS spends complying with payment processing requirements could be used to adjudicate cases. This proposed change to codify that fees must be paid using the method that USCIS prescribes, as provided in the form instructions or by individual notice, would also permit USCIS to reduce administrative burdens and processing errors associated with fee payments. C. Non-Refundable Fees Currently, USCIS filing fees generally are non-refundable and must be paid when the benefit request is filed. See 8 CFR 103.2(a)(1). DHS is proposing to clarify that fees are non-refundable regardless of the result of the immigration benefit request or how 211 Agencies may accumulate deposits less than $5,000 until they reach $5,000 or a given Thursday. U.S. Treasury, ‘‘Treasury Financial Manual’’ Vol 1, Part 5, Chapter 2000, https://tfm.fiscal.treasury.gov/ v1/p5/c200.html. 212 Principle 10, Design Control Activities, states that management should control information processing and segregation of duties to reduce risk, and it should correctly and promptly record transactions. GAO, ‘‘Standards for Internal Control in the Federal Government’’ (Sept. 10, 2014), https://www.gao.gov/assets/670/665712.pdf. PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 483 much time passes between USCIS’ receipt of the request and completion of the adjudication process.213 As previously discussed, DHS is authorized to establish fees to recover the costs of providing USCIS adjudication and naturalization services. See INA sec. 286(m) and (n); 8 U.S.C. 1356(m) and (n). Although fees are set to recover the cost of processing an immigration benefit request, they must be paid in advance of the request being processed. Therefore, fees are due at the time of filing and are required in order for USCIS to receipt the request and issue a receipt date. See 8 CFR 103.2(a)(7)(ii)(D). A benefit request will be rejected if it is not submitted with the correct fee(s), and the fee is not refundable, regardless of how much time is required to complete adjudication or the decision that USCIS makes on the case. Because fees are non-refundable, DHS further proposes to clarify that fees paid to USCIS using a credit card are not subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS. USCIS continues to expand the acceptance of credit cards for the payment of USCIS fees. The increased acceptance of credit cards for the payment of USCIS fees has resulted in a sizeable increase in the number of disputes filed with credit card companies challenging USCIS’ retention of the fee. Disputes are generally filed by requestors whose request was denied, who have changed their mind about the request, or assert that the service was not provided or was unreasonably delayed. USCIS records show that credit card companies generally side with their cardholders in these disputes and they determine that USCIS fails to adequately warn the cardholder that the fee is not refundable and due regardless of the result of the case or the time required to adjudicate it.214 In those instances, USCIS has not received payment for adjudication of the request. When USCIS performs services for which a fee has not been paid, such as when the fee is charged-back by a credit card company, the costs incurred must 213 In USCIS parlance, rejection of a receipt happens in the initial filing stage. USCIS provides a receipt notice for accepted requests and a rejection notice for rejected requests. See 8 CFR 103.2(a)(7). For example, Form I–797C, Notice of Action, will state if a request was accepted or rejected. A denial, on the other hand, is a decision that the request is not eligible for immigration benefits for which it was filed after adjudication. Fees are not returned when a request is denied. 214 In FY 2020, credit card issuers revoked the fee from USCIS in 855 of 1,182 disputes filed, or roughly 72 percent. E:\FR\FM\04JAP2.SGM 04JAP2 484 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 be funded by other fee payers. As the dollar amount of fees paid with credit cards continues to increase, an increase in the number of credit card disputes and chargebacks has the potential to have a significant negative fiscal effect on USCIS. Therefore, DHS is proposing to provide that fees paid to USCIS for immigration benefit requests will not be refunded regardless of the result of the benefit request or how much time the adjudication requires, and that fees paid to USCIS using a credit card are not subject to dispute by the cardholder or charge-back by the issuing financial institution. See proposed 8 CFR 103.2(a)(1); 8 CFR 106.1(e). If the institution that issues the credit card rescinds the payment of the fee to USCIS, USCIS may reject the request if adjudication is not complete, or revoke the approval or convert the denial to rejection, and invoice the responsible party (applicant, petitioner, or requestor) and pursue collection of the unpaid fee in accordance with 31 CFR parts 900 through 904 (Federal Claims Collection Standards) if the adjudication is complete.215 D. Eliminating $30 Returned Check Fee DHS also proposes to amend its regulations to remove the $30 charge for dishonored payments. See 8 CFR 103.7(a)(2)(i) (Oct. 1, 2020). USCIS data indicate that the cost of collecting the $30 fee outweighs the benefits to the Government derived from imposing and collecting the fee. For example, in FY 2016, USCIS collected a total of $416,541 from the $30 returned check fee while the financial service provider billed $508,770 to collect the $30 fee. In FY 2020, USCIS recovered only $199,829 from the returned check fee. Although USCIS no longer discretely tracks the costs associated with processing returned checks, USCIS is at a net loss when processing returned checks. USCIS also bears the cost and time of processing the returned check. Furthermore, USCIS does not retain the $30 fee for deposit into the IEFA with other immigration benefit request fees. USCIS deposits the fee in Treasury’s general fund; thus the $30 fee does not provide revenue to USCIS. As such, USCIS would not benefit from DHS proposing changes to this fee. Although agencies may prescribe regulations establishing the charge for a service or thing of value provided by the agency 216 Federal agencies are not required to impose fees as a general 215 USCIS may also prohibit the payment of fees using a credit card from a financial institution that routinely rescinds fee payments due to disputes. 216 See 31 U.S.C. 9701. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 matter, nor does DHS or USCIS have a specific statutory authorization or requirement to do so. Therefore, DHS is not required to charge a returned check fee. Based on the cost to USCIS and that the bad check fees add nothing to USCIS revenue, DHS proposes to remove the $30 fee from regulations. E. Changes to Biometric Services Fee 1. Incorporating Biometric Activities Into Immigrant Benefit Request Fees DHS proposes to incorporate the biometric services cost into the underlying immigration benefit request fees based on the applicable biometric services for each benefit request and the associated costs as estimated in the ABC model. Currently, a separate $85 biometric services fee may apply depending on the immigration benefit request 217 or other circumstances. See 8 CFR 103.7(b)(1)(i)(C) (Oct. 1, 2020). USCIS currently provides web content, form instructions, and other information to help individuals assess whether they need to pay the biometric services fee. USCIS rejects an application, petition, or request that fails to pay the separate biometric services fee, if it applies. See 8 CFR 103.17(b) (Oct. 1, 2020). DHS proposes to incorporate the cost of biometric services into the underlying immigration benefit request fees using its ABC model to simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information. DHS has broad statutory authority to collect biometric information when such information is ‘‘necessary’’ or ‘‘material and relevant’’ to the administration and enforcement of the INA. See, e.g., INA secs. 103(a), 235(d)(3), 264(a); 8 U.S.C. 1103(a), 1225(d)(3), 1304(a). The collection, use, and reuse of biometric data are integral to identity management, criminal background checks, investigating and addressing national security concerns, and maintaining program integrity. In previous fee rules, USCIS evaluated the biometric activity cost as a single biometric services fee separate from the underlying application, petition, or request. In the FY 2016/2017 fee review, USCIS called the activity Perform Biometric Services. See 81 FR 26913. USCIS clarified that persons filing a benefit request may be required to submit biometrics or be interviewed and pay the biometric services fee. See 81 217 For a quick reference of the immigration benefit requests that currently require biometric services with the initial submission, see USCIS, Form G–1055, Fee Schedule, available at https:// www.uscis.gov/g-1055. PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 FR 26917 and 81 FR 73325. For many years, there has been a single biometric services fee that includes four separate costs: • FBI Name Checks; • FBI fingerprints; • Application Support Center (ASC) contractual support; and • Biometric service management overall, including Federal employees at the ASC locations. In the FY 2022/2023 fee review, USCIS identified each of these four costs as distinct activities in the ABC model. These four activities replace the single biometric activity that USCIS used in previous fee reviews.218 USCIS used volume estimates to allocate these costs to the proposed immigration benefit requests to which they generally apply. The biometric volume estimates were specific to the projected workload for FBI Name Checks, FBI fingerprints, and contractual support at the ASC locations. In most cases, these estimates used the average proportion of workload for each immigration benefit request. The data on ASC Production and FBI Name Checks are from FY 2015 to FY 2017. The FBI Fingerprints data used FY 2016 to FY 2018. While the information does not cover the most recent years, USCIS believes it is the most appropriate information to use for this calculation because it reflects biometric collection rates before the pandemic and before increased collection of biometrics for certain populations. For example, the data excludes higher biometric service rates for Form I–539 after a 2019 form revision.219 USCIS temporarily suspended biometric collection for Form I–539 during the pandemic.220 Thus, the information considered will more closely reflect the annual volume of biometrics submissions that USCIS expects during FY 2022/2023. These proportions of each biometric service to receipts can vary, because there is not always a one-to-one relationship between a specific benefit request and a biometric service. For example, USCIS may not require submission of 218 The single biometric service activity was called Perform Biometric Services in the FY 2016/ 2017 fee review. See 81 FR 26913–26914. Previously, USCIS called the activity Capture Biometrics. See 75 FR 33459 (June 11, 2010) and 72 FR 4897 (Feb. 1, 2007). 219 See USCIS, ‘‘UPDATE: USCIS to Publish Revised Form I–539 and New Form I–539A on March 8’’ available at https://www.uscis.gov/news/ alerts/update-uscis-to-publish-revised-form-i-539and-new-form-i-539a-on-march-8 (last updated March 5, 2019). 220 See USCIS, ‘‘USCIS Temporarily Suspends Biometrics Requirement for Certain Form I–539 Applicants’’ available at https://www.uscis.gov/ news/alerts/uscis-temporarily-suspends-biometricsrequirement-for-certain-form-i-539-applicants (last updated May 13, 2021). E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 biometrics if it resubmits existing, stored biometric information to the FBI. As another example, some immigration benefit requests, like adoption petitions and applications, require that all adults in a household submit biometric information. See, e.g., 8 CFR 204.310(a)(3)(ii) and (b). As such, a single adoption petition or application may require more than one adult to submit biometric information. Using biometric volumes specific to individual biometric activities enables USCIS to better forecast biometric costs and attribute them to specific benefit requests. DHS proposes to incorporate biometric costs into IEFA immigration benefit request fees by using this biometric activity-specific information in the proposed fees. See proposed 8 CFR 106.2. The proposed changes in this rule may assist USCIS as it shifts to enterprise-wide person-centric identity management. A person-centric view of the data allows adjudicators to see relevant information for an individual across multiple benefits requests and systems. USCIS aims to improve how it acquires, stores, manages, shares, and uses identity data—making all relevant information accessible and usable in support of adjudications. For example, if USCIS modifies the types of background checks conducted, then DHS may propose to increase the fee as appropriate for the affected immigration benefit requests. This approach may ensure that the affected customers would pay the appropriate fee rather than pass the cost burden of all other biometric services to other unrelated customers. USCIS forecasts biometric workload volumes by immigration benefit request type in order to assign biometrics costs to the appropriate immigration benefit request. Assigning costs to the underlying immigration benefit request type may reduce the administrative burden on USCIS to administer the separate fee and make it easier for applicants, petitioners, and beneficiaries to calculate the total payment that is due. However, USCIS proposes to retain the separate biometric services fee for specific workloads, as described in the next section. 2. Retaining the Separate Biometric Services Fee for Temporary Protected Status DHS has excluded from USCIS’ ABC model for this proposed rule the costs and revenue associated with TPS, consistent with the previous fee rule. See 81 FR 73312–73313. In addition, as noted above, DHS proposes generally to eliminate a separate biometric services VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 fee and fund biometric services from the revenue received from the underlying immigration benefit request fees. However, DHS proposes to retain a separate biometric services fee for TPS. See proposed 8 CFR 106.2(a)(48)(iii). While the TPS registration fee is capped by INA sec. 244a(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) at $50, DHS has specific statutory authority to collect ‘‘fees for fingerprinting services, biometric services, and other necessary services’’ when administering the TPS program. See 8 U.S.C. 1254b. USCIS collects biometrics for TPS registrants. USCIS requires certain TPS initial applicants and re-registrants to pay the biometric services fee in addition to the fees for Form I–821, Application for Temporary Protected Status, and for Form I–765, Application for Employment Authorization, if they want an employment authorization document. See Instructions for Form I– 821. The model output of other fees indicates that the $50 amount provided by statute does not recover the full cost of adjudicating these benefit requests. To reduce the costs of TPS that USCIS must recover from fees charged to other immigration benefit requests, DHS proposes to require a $30 biometric services fee for TPS initial applications and re-registrations. See proposed 8 CFR 106.2(a)(48)(iii). As stated previously, while DHS follows OMB Circular A–25, we are not required to set specific fees at the costs of the benefit request or adjudication or naturalization service for which the fee is being charged. Nevertheless, DHS based the proposed $30 biometric services fee on the direct costs of collecting, storing, and using biometric information for TPS initial applications and re-registrations. Currently, USCIS pays approximately $11.25 to the FBI for fingerprinting results. USCIS calculated that biometric collection, storage, and use at an ASC costs approximately $19.50. These same ASC and FBI rates apply to TPS and all other requests that use these services. The sum of these costs is approximately $31. DHS rounded the proposed fee to the nearest $5 increment, similar to other IEFA fees, making the proposed fee $30. The proposed fee is less than the current $85 biometric services fee because the current fee includes indirect costs. The FY 2016/2017 fee rule held the biometric services fee to $85, which has not changed since the FY 2010/2011 fee rule. 3. Executive Office for Immigration Review Biometric Services Fee Similarly, DHS is maintaining the current requirement that applicants PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 485 filing certain requests with EOIR 221 submit a biometric services fee. See proposed 8 CFR 103.7(a)(2). DHS, including USCIS, handles all aspects of biometrics collection for EOIR and conducts background security checks for individuals in immigration proceedings.222 This fee is necessary to recover the costs USCIS incurs performing that service for EOIR. When individuals in immigration proceedings before EOIR seek to file an application for relief or protection from removal with the immigration court they are instructed to pay any applicable biometrics and application fees to DHS. See 8 CFR 1103.7(a)(3).223 As previously explained, while DHS proposes to incorporate the costs of biometric services into its underlying immigration benefit request fees, DHS has no authority to change the amounts it receives from any EOIR fees to recover the costs it incurs for biometric services (which includes background checks). Under this proposed rule, DHS proposes to adjust the biometric services fee for those requests filed with and processed by USCIS. DHS proposes to use the same $30 fee using the same estimates as described for the proposed TPS biometrics fee above. Consequently, DHS proposes a biometric services fee of $30 for certain forms for which it performs intake and biometrics services on behalf of EOIR. See proposed 8 CFR 103.7(a)(2). F. Naturalization and CitizenshipRelated Forms Aside from updating the fees for naturalization and citizenship-related forms, DHS proposes to continue offering fee waivers for the naturalization forms. See section VI.E of this preamble. For a general discussion on how fee waivers, limited fee increases, and fee exemptions affect proposed fees, see section IV of this preamble. The fee-paying unit costs represent the estimated cost per fee-paying applicant as calculated in the USCIS 221 EOIR is a component of the DOJ and includes the Office of the Director, the Board of Immigration Appeals, the Office of the Chief Immigration Judge, the Office of the Chief Administrative Hearing Officer, the Office of Policy, and other staff as the Attorney General or the Director may provide. See 8 CFR 1003.0. USCIS provides intake services for several requests filed with, and adjudicated by, EOIR, for which biometrics may be required. 222 Guidance is available at ‘‘Immigration Benefits in EOIR Removal Proceedings,’’ at https:// www.uscis.gov/laws/immigration-benefits-eoirremoval-proceedings (last updated Aug. 5, 2020). 223 This regulation provides that, except as provided in 8 CFR 1003.8, EOIR does not accept fees, and that fees relating to EOIR proceedings are paid to DHS. E:\FR\FM\04JAP2.SGM 04JAP2 486 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules ABC model.224 However, as to Forms N– 565 and N–600K, both the current fees and the proposed fees are less than the estimated cost (fee-paying unit cost) for each naturalization form. For example, the current fee for Form N–400 is $231 less than the fee-paying unit cost estimated in the FY 2016/2017 fee rule. See Table 14. The proposed fee for Form N–400 is $296 less than the estimated FY 2022/2023 fee-paying unit cost. Id. As such, while DHS proposes to increase the fee for Form N–400, DHS likewise proposes to recover a smaller percentage of the estimated cost for adjudicating Form N–400 than it does in its current fee structure. If the two difference columns in Table 14 are negative, then DHS proposes to maintain the current practice by keeping the proposed fee below the estimated cost. If the two difference columns are positive, then DHS proposes to recover more than full cost in order to fund operations and policy objectives, like offering fee waivers and charging less than full cost for other naturalization fees. DHS further proposes separate online and paper fees for some benefit types. Proposed online filing fees are lower than proposed paper filing fees, when available. See section VIII.G of this preamble. However, DHS does not propose separate online and paper filing fees for naturalization services because the proposed naturalization fees are based on the current fees instead of ABC model results. Specifically, as a general matter, the proposed fees are approximately 18 percent more than the current fees, based on a calculation described in section V.B.3 of this preamble. However, for Forms N–565 and N–600K, the proposed fees are below the estimated cost from the ABC model, thus DHS proposes no discount for online filing of the N-forms. FY 2016/2017 Fee-Paying Unit Cost Current Fee $840 $270 Difference Between Current Fees and Cost Estimate (Current Fee minus FY 2016/2017 Cost) -$570 $1,294 $700 $871 N-300 Application to File Declaration of Intention N-336 Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) N-400 Application for Naturalization N-470 Application to Preserve Residence for Naturalization Purposes N-565 Application for Replacement Naturalization/Citizenship Document N-600 Application for Certificate of Citizenship N-600K Application for Citizenship and Issuance of Certificate Under Section 322 khammond on DSKJM1Z7X2PROD with PROPOSALS2 1. Application for Naturalization (Form N–400) Fee DHS proposes to increase the fee for Form N–400, Application for Naturalization, from $640 to $760, a $120 or 19 percent increase. See 8 CFR 103.7(b)(1)(i)(BBB) (Oct. 1, 2020); proposed 8 CFR 106.2(b)(4). Most 224 For more information, see the FY Immigration Examinations Fee Account Fee Review Supporting Documentation (supporting documentation). 225 Current fees became effective on Dec. 23, 2016. See 81 FR 73292. The consumer price index VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 FY 2022/2023 Fee-Paying Unit Cost Proposed Fee $789 $320 Difference Between Proposed Fees and Cost Estimate (Proposed Fee minus FY 2022/2023 Unit Cost) -$469 -$594 $1,537 $830 -$707 $640 -$231 $1,056 $760 -$296 $792 $355 -$437 $1,511 $420 -$1,091 $399 $555 $156 $375 $555 $180 $841 $1,170 $329 $1,474 $1,385 -$89 $841 $1,170 $329 $1,048 $1,385 $337 naturalization applicants pay an additional $85 biometric services fee, making the current total fees for Form N–400 total $725. This rule proposes to add the cost of biometric services to the underlying form fee. See section VIII.E of this preamble. As such, the proposed fee for Form N–400 is only $35 or approximately 5 percent more than the current Form N–400 and biometric service fees that most applicants currently pay. For comparison, the inflation since the current fees became effective is approximately 19.75 percent.225 If DHS adjusted the Form N– 400 and biometric services fees by for all urban consumers (CPI–U) was 241.432 in Dec. 2016 and 289.109 in Mar. 2022. The change in the Index over these two periods was 47.68 or 19.75 percent. See U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI–U) tables, available at https://data.bls.gov/ timeseries/CUUR0000SA0. DHS has not recently adjusted IEFA fees by CPI–U inflation, but provides this figure as a point of comparison. PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.052</GPH> Table 14: Naturalization Fees and Cost Estimates Compared Immigration Benefit Request Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 inflation, then the proposed fees would total $865, $140 more than the current fees for Form N–400.226 DHS provides this inflation-adjusted fee amount only as a point of comparison. Prior fee rules shifted a portion of the Form N–400 cost to other fee-paying immigration benefit requestors, and DHS proposes to maintain that approach. In the FY 2010/2011 and the FY 2016/2017 fee rules, the Form N–400 fee was set below the ABC model output; in other words, the fee was less than the estimated cost per fee-paying receipt. The FY 2010/2011 fee rule held the fee to $595, the amount set in the FY 2008/2009 fee rule. See 75 FR 58975. The FY 2016/2017 fee rule limited the fee to only $640, a $45 or eight percent increase. See 81 FR 73307. The FY 2010/2011 proposed rule explained that holding the fee for the Form N–400 to the FY 2008/2009 fee raised all other proposed fees by approximately $8 each. See 75 FR 33462 (June 11, 2010). For DHS to recover the full cost of adjudicating the Form N– 400, the FY 2010/2011 proposed fee would have been $655, a $60 or roughly a 10 percent increase. See 75 FR 33462– 33463. In the FY 2016/2017 fee rule supporting documentation, USCIS estimated that each Form N–400 may cost $871 to complete, plus the cost for biometric services of $75, for a total of $946.227 In this proposed rule, the estimated cost of Form N–400, including biometrics, is $1,003 when filed online and $1,135 when filed on paper. If DHS were to maintain the current $640 fee, then all other proposed fees would increase by an additional average $12. In crafting prior fee rules, DHS reasoned that setting the Form N–400 fee at an amount less than its estimated costs and shifting those costs to other fee payers was appropriate in order to promote naturalization and immigrant integration.228 In the 2020 fee rule, DHS increased the fee for Form N–400, 226 The inflation adjusted amounts using this example would be as follows: N–400: $640 multiplied by 1.1975, which is approximately $766.38; biometric services fee: $85 multiplied by 1.1975, which is approximately $101.79. DHS rounds fees to the nearest $5. Rounded to the nearest $5, the inflation adjusted fees would be $765 and $100, totaling $865. 227 See the Model Output column of Appendix Table 4: Final Fees by Immigration Benefit Request in the docket of the FY 2016/2017 fee rule. The model output is the projected total cost from the ABC model divided by projected fee-paying volume. It is only a forecast unit cost (using a budget) and not the actual unit cost (using spending from prior years). USCIS does not track actual costs by immigration benefit request. See Appendix VI of the supporting documentation included in this docket for more information. 228 See, for example, 75 FR 33461; 81 FR 26916. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Application for Naturalization, from $640 to $1,170. See 8 CFR 103.7(b)(1)(i)(BBB); 8 CFR 106.2(b)(3) (Oct. 2, 2020). DHS determined that shifting costs to other applicants in the manner that it had in previous fee rules was ‘‘not equitable’’ given the significant increase in Form N–400 filings in recent years. See 84 FR 62316. Therefore, to mitigate the fee increase of other immigration benefit requests and to emphasize the beneficiary-pays principle, DHS did not limit the Form N–400 fee and set a $1,170 fee to recover the full cost of adjudicating the Form N–400, as well as a proportion of costs not recovered by other forms for which fees are limited or must be offered a waiver by statute. As stated earlier, DHS proposes to shift away from emphasizing the beneficiary-pays principle and return towards the historical balance between the beneficiary-pays and ability-to-pay principles. DHS has determined that shifting costs to other applicants in this manner is rational considering the significant value that the United States obtains from the naturalization of new citizens. Many commenters on the 2020 fee rule stated that the fee would deter eligible applicants, and cited peerreviewed studies indicating that cost can be a prohibitive barrier for wouldbe naturalization applicants. DHS is committed to promoting naturalization and immigrant integration and making sure that naturalization is readily accessible. Thus, DHS proposes setting the Form N–400 fee at an amount less than its estimated costs and shifting those costs to other fee payers using the cost reallocation methodology.229 Therefore, DHS proposes to limit the Form N–400 fee at $760 to partially recover the full cost of the Form N–400 and biometrics services while promoting naturalization and integration. If the full costs of administering USCIS programs to be recovered under this rule decrease due to increases in revenue or gains in efficiency between this proposed rule and the final rule, DHS will consider using those cost reductions in to further reduce the Form N–400 fee, considering the value of naturalization and immigrant integration, or to reduce other fees based on policy considerations. 2. Request for Reduced Fee (Form I–942) In addition to updating the Form N– 400 fee waiver requests, as previously 229 Based on filing volume trends in recent years, USCIS forecasts an increase of 62,165 Form N–400 applications, nearly a 10 percent increase from the FY 2016/2017 fee rule forecast. See Table 7, Workload Volume Comparison. PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 487 explained, DHS proposes to keep the reduced fee option for those naturalization applicants with family incomes not more than 200 percent of the FPG. See 8 CFR 103.7(b)(1)(i)(BBB)(1) (Oct. 1, 2020). The current N–400 reduced fee is $320 plus the $85 biometrics fee. The proposed N– 400 reduced fee is $380, a $60 or approximately 19 percent increase from the current $320 fee but less than the current total cost ($405) with added $85 separate biometrics fee. See proposed 106.2(b)(4)(ii). Like the proposed Form N–400 fee, the proposed reduced fee is a limited 18 percent increase from the current fee ($320), rounded to the nearest $5. See Section V.B.3 of this preamble. Like most proposed fees, it includes the cost of biometric services. See section VIII.E. of this preamble. However, the biometric services fee was not part of the calculation for the proposed fee. DHS calculated the proposed fee for the reduced fee option the same way as the full fee option, as described in section V.B.3 of this preamble. Currently, qualifying applicants pay a fee of $320 plus an additional $85 for biometric services, for a total of $405. To qualify for a reduced fee, the eligible applicant must submit Form I–942, Request for Reduced Fee, along with their Form N–400. Form I–942 requires the names of everyone in the household and documentation of the household income to determine if the applicant’s household income is greater than 150 and not more than 200 percent of the FPG. DHS eliminated the Form I–942 and reduced fee in the 2020 fee rule to recover the estimated full cost for naturalization services and to reduce the administrative burden on the agency to process the Form I–942. See 84 FR 62317; 85 FR 46860. Commenters on the change wrote that eliminating the reduced fee would make it difficult for immigrants with income between 150 percent and 200 percent of the poverty level to afford citizenship. DHS acknowledges that eliminating the reduced fee for Form N–400 would block people from receiving a reduced fee, increase the number of people who are required to pay the full Form N–400 fee, and could result in fewer people applying for naturalization. DHS implemented this reduced fee option in the FY 2016/2017 fee rule to limit potential economic disincentives that some eligible naturalization applicants may face when deciding whether to seek U.S. citizenship. See 81 FR 73307. DHS only proposes that the income level for the reduced fee is not limited to start at 150 percent of the E:\FR\FM\04JAP2.SGM 04JAP2 488 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 FPG. Instead, any applicant who has an income under 200 percent of the FPG can request a naturalization application with a reduced fee if eligible.230 DHS had originally proposed the reduced fee option for low-income applicants in support of 2015 immigration integration policies and the USCIS mission to support aspiring citizens.231 The reduced fee helps ensure that many immigrants whose goal it is to apply for naturalization are not unnecessarily limited by their economic means. Other fee payers are required to bear the cost of the reduced fee, but the importance of naturalization justifies the slight shift of burden.232 Similarly, in keeping the reduced fee for the naturalization application, DHS is supporting and complying with Executive Order 14012 to reduce barriers and promote accessibility to the immigration benefits that it administers. See 86 FR 8277 (Feb. 2, 2021) (E.O. 14012). Although receipts of I–942 have remained relatively low, the overall lower cost for a reduced N– 400 application may increase access to naturalization applications. In FY 2020, 3,430 people submitted a reduced fee Form N–400.233 This represents approximately 0.47 percent of the people who paid for Form N–400 in FY 2020. USCIS forecasts 3,763 average annual receipts for the reduced 230 In 2018, Congress also encouraged USCIS ‘‘to consider whether the current naturalization fee is a barrier to naturalization for those earning between 150 percent and 200 percent of the FPG, who are not currently eligible for a fee waiver.’’ H. Rep. 115– 948 at 61. 231 See The White House Task Force on New Americans, ‘‘Strengthening Communities by Welcoming All Residents’’, at 28–29 (2015), available at https://obamawhitehouse.archives.gov/ sites/default/files/docs/final_tf_newamericans_ report_4-14-15_clean.pdf. 232 DHS previously stated that adjusting fee levels based on income would be administratively complex and would require higher costs to administer. See 75 FR 58971. Specifically, in 2010, DHS stated that a tiered fee system would impose an unreasonable cost and administrative burden, because it would require staff dedicated to income verification and necessitate significant information system changes to accommodate multiple fee scenarios. See id. DHS will need to reprogram intake operations for Form N–400 to recognize the new fee and documentation. Staff must be added to review the income documentation provided to determine if the applicant qualifies for the new fee. DHS has determined that the change proposed here, because it applies only to Form N–400 and the act of acquiring citizenship, is of sufficient value from a public policy standpoint to justify USCIS incurring the additional administrative and adjudicative burden and the cost of such covered by other fee payers, which as explained below is limited. 233 Based on actual FY 2020 revenue collections, 3,430 people filed Form N–400 with Form I–942. In the same year, 726,519 paid the full fee for Form N–400. Thus, the total fee-paying volume for both is 729,949. Reduced fee applicants represented approximately 0.47 percent of total Form N–400 applicants. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Form N–400 in this proposed rule. As such, DHS estimates that the reduced fee option for N–400 may provide approximately $1.4 million in revenue with the proposed fee. If DHS were to propose ending the reduced fee option, it would have almost no effect on the resulting fee schedule. Two proposed fees would increase by $5 and one would increase by $10, but all other proposed fees would remain the same. DHS proposes to maintain the reduced fee 234 to further promote naturalization and limit a barrier to naturalization. 3. Military Naturalization and Certificates of Citizenship DHS does not propose any changes to fee exemptions for current and former military service members who file a Form N–400 under the military naturalization provisions.235 Military naturalization applications will continue to be fee exempt. See 8 CFR 103.7(b)(1)(i)(BBB)(2) (Oct. 1, 2020); proposed 8 CFR 106.2(b)(4)(i).236 USCIS does not charge a fee to military naturalization applicants because such fees are prohibited by statute. See INA secs. 328(b)(4), 329(b)(4), 8 U.S.C. 1439 (b)(4), 8 U.S.C. 1440(b)(4). Applicants who request a hearing on a naturalization decision under INA sec. 328 or 329 with respect to military service will continue to be fee exempt. See 8 CFR 103.7(b)(1)(i)(AAA) (Oct. 1, 2020); proposed 8 CFR 106.2(b)(3). Current or former military members of any branch of the U.S. armed forces will continue to be exempt from paying the fee for an Application for Certificate of Citizenship, Form N–600. See 8 CFR 103.7(b)(1)(i)(EEE) (Oct. 1, 2020); proposed 8 CFR 106.2(b)(8). While the statute prohibits fees for military naturalization applicants themselves, DoD currently reimburses USCIS for costs related to such applications.237 Accordingly, USCIS does not propose to 234 This includes a reversal of the 2020 fee rule’s removal of the Form I–942. 235 DHS notes that no other applicant is exempt from the Form N–400 fee but any other applicant submitting a Form N–400 may request a fee waiver. 236 DHS made no changes to the fee exemptions for military members and veterans in the 2020 fee rule. See 84 FR 62317. 237 The proposed fee would increase the reimbursable agreement between USCIS and DoD by $199,500. The current fees for Form N–400 ($640) and biometric services ($85) total $725 per military naturalization. In FY 2022/2023, USCIS forecasts an average of 5,700 military naturalizations per year. Under the current fees, this would cost DoD $4,132,500 on average each year. With the proposed $760 Form N–400 fee (which includes the cost of biometrics), the same volume would cost $4,332,000, a $199,500 or approximately 5 percent increase. PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 increase other fees to subsidize the costs of military naturalization applications. 4. Application for Certificate of Citizenship (Form N–600) and Application for Citizenship and Issuance of Certificate Under Section 322 (Form N–600K) As discussed earlier in this preamble, DHS bases most proposed fees on feepaying unit costs from the ABC model. See section V.B.3., Assessing Proposed fees. Other proposed fees, such as those for naturalizations forms, are based the current fees plus a limited fee increase. Id. The current fee for Forms N–600 and N–600K was based on USCIS data that showed approximately one-third of Form N–600 filers received fee waivers. See 81 FR 73298. In fact, the substantial fee increase in the FY 2016/2017 fee rule was primarily due to the availability of fee waivers for other N– 600s and N–600Ks. Id. In the 2010 final rule, DHS assumed that every applicant would pay the fee for Forms N–600 and N–600K.238 However, the fee-paying volume estimate for Forms N–600 and N–600K decreased from 100 percent in FY 2010/2011 to 67 percent in FY 2016/ 2017 to reflect USCIS data, showing an increased share of applicants receiving fee waivers. See 81 FR 73298. In addition, the FY 2016/2017 fee rule removed the difference in fees between forms filed for biological children versus forms filed for adopted children. See 81 FR 73297–73298. In response to the FY 2016/2017 fee rule NPRM, some commenters stated that the proposed fee increases would result in a significant additional burden for applicants, including adoptive families. Nevertheless, DHS increased the fees to recover the cost of adjudications. In the 2020 fee rule, fees for Forms N– 600 and N–600K decreased. See 85 FR 46792. However, that fee decrease was the result of limitations on fee waivers that were included in that enjoined rule. See 85 FR 46861. DHS is not proposing to similarly restrict fee waivers in this rule. Therefore, fee waivers continue to contribute to the proposed fee increases. Recent USCIS data indicate that approximately 53 percent of Form N– 600 applicants and approximately 74 percent of Form N–600K applicants pay the respective fees, and the fees 238 Compare Forms N–600 and N–600K between Tables 10 and 11 in the 2010 proposed rule. See 75 FR 33468–33469 (June 11, 2010). The 2010 proposed rule assumed no fee waivers for Forms N– 600 and N–600K because workload volumes are equal to fee-paying volumes for the two respective forms. The 2010 final rule adopted the proposed fees for Forms N–600 and N–600K. See 75 FR 58964 (Sept. 24, 2010). E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 proposed in this rule reflect that.239 This means that every fee-paying Form N–600 applicant would need to pay almost double the estimated unit cost of the application in order to accommodate applicants that received a fee waiver or qualified for a fee exemption for Form N–600 if the burden were limited to Form N–600 filers. The current fees represent a combined fee for both Forms N–600 and N– 600K.240 The proposed fees for Forms N–600 and N–600K are calculated and proposed separately. USCIS estimated separate workload and fee-paying volumes for each in this proposed rule. By determining separate volumes and fee-paying percentages for Forms N–600 and N–600K, these proposed fees better reflect the fee-paying percentage of each respective benefit request. DHS recognizes that increasing fees for Forms N–600 and N–600K to account for the full cost of adjudication may adversely impact applicants who are generally children and are already citizens by law. DHS has determined that the combined effect of high cost and low fee-paying volume would otherwise place an inordinate fee burden on individuals requesting certificates of citizenship. Also, DHS has decided that limiting the fee increase will promote citizenship and immigrant integration. Therefore, DHS proposes to limit the increase of the fee for these forms and apply the cost reallocation methodology as described in section VIII.F.5., Proposed Changes to Other Naturalization-Related Application Fees. This proposed fee remains below the estimated cost from the USCIS ABC model. By limiting the fee increase, DHS may reduce the financial burden on these applicants. In addition, limiting the N–600 fees does not appreciably increase other fees by shifting an inordinate amount of costs of adjudicating the N–600 to them. The increase to other forms is only $5 in many cases, compared to an increase of hundreds of dollars to the N–600 and N–600K fees to recover full cost. For example, if DHS proposed to recover full cost on Form N–600 and N–600K, then proposed fees for Form N–600 would range from $1,835 when filed 239 See Section V.B.1 earlier in this NPRM. Compare the workload to the fee-paying volume for Forms N–600 and N–600K. Divide the fee-paying receipts by the workload for the fee-paying percentage. For example, Form N–600 estimated workload is 30,000. The estimated fee-paying volume is 16,041. Estimated fee-paying divided by estimated workload equals 53.47 percent as the feepaying percentage. 240 See 103.7(b)(1)(i)(EEE) and (FFF) (Oct. 1, 2020). Both used the same $1,070 fee; see also 81 FR 73295 (Oct. 24, 2016). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 online to $2,080 when filed on paper. These hypothetical proposed fees are $450 and $695 more than the respective proposed fees in this rulemaking. Thus, DHS concludes that the proposed Form N–600 and N–600K fees represent a reasonable balance between the beneficiary-pays and ability-to-pay feesetting models being employed to calculate the fees in this proposed rule. 5. Proposed Changes to Other Naturalization-Related Application Fees There are other naturalization and citizenship related forms that may be submitted in coordination with the naturalization or certificate of citizenship application. Other forms may be submitted before or after such applications for other benefits. In some cases, such as Form N–565, DHS proposes to recover full cost; however, proposed fees for most naturalization services remain below estimated cost. See Table 14. DHS uses its fee setting discretion to adjust certain immigration request fees that would be overly burdensome on applicants, petitioners, and requestors. Historically, as a matter of policy, DHS has chosen to limit USCIS fee adjustments for certain benefit requests to the weighted average fee increase represented by the model output costs for fee-paying benefit types. See 75 FR 33461.241 Any additional costs from these benefit request types beyond this calculated weighted average increase figure would be reallocated to other benefit types. DHS has continuously limited the fees for the following forms: • Form N–300, Application to File Declaration of Intention; • Form N–336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); and • Form N–470, Application to Preserve Residence for Naturalization Purposes. DHS recognizes that charging less than the full cost of adjudicating an immigration benefit request requires USCIS to increase fees for other immigration benefit requests to ensure full cost recovery.242 Nevertheless, DHS proposes to continue limiting the fees for these forms as they are related to naturalization benefits and some have low receipt numbers. DHS further proposes to maintain the current fee for Form N–565, Application also FY 2008/2009 Fee Rule. 72 FR 4910. complies with INA sec. 286(m), 8 U.S.C. 1356(m), which authorizes DHS to set USCIS fees at a level required to cover the costs of providing applicants, petitioners, or requestors a service or part of a service ‘‘without charge.’’ 489 for Replacement Naturalization/ Citizenship Document despite the FY 2022/2023 USCIS ABC model calculating a lower fee for it. The current fee for Form N–565 is $555. There is no fee when this application is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a certificate that contains an error. DHS considered lowering the fee as provided in the model, but decided that the revenue above the costs of adjudicating that would be generated by maintaining the current N–565 fee would help to mitigate the fee increases for other forms.243 DHS weighed a number of factors in deciding to keep the current fee, which is $180 higher than the FY 2022/2023 fee-paying unit cost. See Table 14. DHS recognizes that obtaining a replacement Naturalization/ Citizenship Document may be necessary at times; however, a U.S. passport is an available alternative to proof of U.S. citizenship. The number of individuals who would file Form N–565 is limited, a fee waiver is still available, and the fee is not increasing from the FY 2016/2017 fee rule. Therefore, DHS determined that keeping the fee at the amount that it has been for the last 5 years would not be unduly burdensome on applicants or limit access to a replacement certificate. Thus, DHS decided that applicants for a replacement naturalization/citizenship document would pay the current fee although the amount is above the feepaying unit cost calculated by the ABC model. 6. Request for Comments While DHS proposes no changes to the Request for Reduced Fee (Form I– 942) income threshold for the naturalization application, DHS specifically requests comments on the appropriate level of income that USCIS should use to determine eligibility for the reduced fee and data to support that suggested level or measure. DHS also requests comments on limiting the increase of some fees and applying the cost reallocation methodology. G. Fees for Online Filing The June 2018 OMB report, ‘‘Delivering Government Solutions in the 21st Century,’’ recognized that an overarching source of Government inefficiency is the outdated reliance on paper-based processes, and prioritized the transition of Federal agencies’ business processes and recordkeeping to a fully electronic environment.244 The 241 See 242 This PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 243 See section V.B.3. of this preamble for more information on assessing proposed fees. 244 OMB, ‘‘Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization E:\FR\FM\04JAP2.SGM Continued 04JAP2 490 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules report noted that Federal agencies collectively spend billions of dollars on paper management, including processing, moving, and maintaining large volumes of paper records, and highlighted the key importance of data, accountability, and transparency.245 Significantly, it cites USCIS’ electronic processing efforts as an example of an agency initiative that aligns with the prioritized reforms.246 The FY 2022 President’s Budget also noted the need for effective, efficient, and modern Federal information technology to improve service delivery.247 USCIS will continue to expand upon the current level of operational digital filing platforms and encourage filers to utilize these online resources for a simpler, faster, and more responsive filing experience.248 DHS understands that while USCIS has embraced technology in adjudication and recordkeeping, it remains bound to the significant administrative and operational burdens associated with benefit requests that are submitted on paper. The intake, storage, and handling of paper require tremendous operational resources, and information recorded on paper cannot be as effectively standardized or used for fraud and national security, information sharing, and system integration purposes. However, technological advances have allowed USCIS to develop accessible, digital alternatives to traditional paper methods for intaking and adjudicating benefit requests. Every benefit request submitted online instead of on paper provides direct and immediate cost savings and operational efficiencies to both USCIS and filers—benefits that khammond on DSKJM1Z7X2PROD with PROPOSALS2 Recommendations’’ (2018), available at https:// www.whitehouse.gov/wp-content/uploads/2018/06/ Government-Reform-and-Reorg-Plan.pdf. 245 Id. at 100. 246 Id. at 101–02. 247 OMB, ‘‘Budget of the U.S. Government: Fiscal Year 2022’’ (2021), available at https:// www.whitehouse.gov/wp-content/uploads/2021/05/ budget_fy22.pdf. 248 OMB, ‘‘12. Information Technology and Cybersecurity Funding’’ (2021), available at https:// www.whitehouse.gov/wp-content/uploads/2021/05/ ap_12_it_fy22.pdf. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 will increase throughout an individual’s immigration lifecycle as more benefit requests become available for online filing and case management. Even as benefit requests become available for online filing, USCIS continues to provide the option of engaging with USCIS on paper. DHS recognizes that people adopt new technology at varying rates and have different levels of access to technology resources.249 In this case, the complexity of the immigration benefit request system may exacerbate the tendency toward the status quo. Those familiar with paper-based forms and interactions may feel there is no reason to change a method that has worked for them in the past. DHS agrees that transitioning to online filing for benefit requests is an important step in improving USCIS service and financial stewardship while promoting the objectives of the Government Paperwork Elimination Act 250 and the E-Government Act.251 Therefore, USCIS has calculated the feepaying unit cost (model output) for paper filing and online filing separately. USCIS modified its ABC model to distinguish between paper and online filing costs when both options exist for an immigration benefit request.252 USCIS used domestic receipt data from April 2020 to March 2021 to estimate the percentage of receipts by filing method (online or paper) for each type of immigration benefit request available for online filing. USCIS applied those percentages to the total receipt forecasts by fiscal year to estimate online and paper filing volumes for immigration benefit requests for which both filing options are available.253 The ABC model assigned costs differently to the two filing methods. For example, the model assigned the Intake activity to only paper workloads. The Intake activity represents mailroom operations, data entry and collection, file assembly, fee receipting, adjudication of fee waiver requests, and lockbox operations. 249 See Brian Kennedy & Cary Funk, Pew Research Group, ‘‘28 percent of Americans are ‘strong’ early adopters of technology’’ (July 12, 2016), available at https://www.pewresearch.org/ fact-tank/2016/07/12/28-of-americans-are-strongearly-adopters-of-technology. See also Emily Vowels, Pew Research Group, ‘‘Digital divide persists even as Americans with lower incomes make gains in tech adoption’’ (June 22, 2021), available at https://www.pewresearch.org/fact-tank/ 2021/06/22/digital-divide-persists-even-asamericans-with-lower-incomes-make-gains-in-techadoption/. 250 See Pub. L. 105–227, 112 Stat. 2681 (Oct. 21, 1998). 251 See Pub. L. 107–347, 116 Stat. 2899 (Dec. 17, 2002). 252 USCIS uses commercially available ABC software, CostPerform, to create financial models to implement ABC, as described in the Methodology section of this preamble and the supporting documentation in the docket for this proposed rule. The supporting documentation also provides additional information on activities and their assignments in the ABC model. 253 USCIS did not use online filing data for Form I–765 during this timeframe. Online filing for certain applicants filing Form I–765 became available on April 12, 2021. See USCIS, ‘‘F–1 Students Seeking Optional Practical Training Can Now File Form I–765 Online,’’ available at https:// www.uscis.gov/news/news-releases/f-1-studentsseeking-optional-practical-training-can-now-fileform-i-765-online (last revised Apr. 12, 2021). USCIS used the online filing rates for Form I–539 as a proxy for the online filing rates for the eligible categories of I–765 filers. 254 DHS codified a fee for forms currently available for online filing with USCIS and filed online that was $10 lower than the fee for the same paper. 8 CFR 106.2(d) (Oct. 2, 2020). In this rule, DHS also proposes separate fees for filing forms online. 255 CBP accepts USCIS Forms I–192 and I–212 online. Available at https://www.cbp.gov/travel/ international-visitors/e-safe (last modified Oct. 28, 2020). However, USCIS has no data on the cost of online filing with CBP. Therefore, DHS proposes that USCIS online and paper fees apply to USCIS forms submitted to USCIS only. PO 00000 Frm 00090 Fmt 4701 Sfmt 4702 DHS recognizes that the international COVID–19 pandemic may have increased the level of online filing versus paper filing for benefit requests where online filing is available. To encourage continued use of online filing at the same or a higher rate after the pandemic, DHS proposes a lower fee for online filing of immigration benefit requests for which both paper and online filing options are available.254 See proposed 8 CFR 106.2.255 See Table 15, Fees for Online Filing, for a comparison of paper and online filing fees. In some cases, DHS proposes to not change the fee. See section V.B.3., Assessing Proposed Fees, for more information. E:\FR\FM\04JAP2.SGM 04JAP2 491 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Immigration Benefit Request Online Filing Fee Paper Filing Fee Difference $455 $465 $10 $710 $525 $820 $620 $110 $95 $555 $650 $95 $830 $830 $0 $760 $555 $760 $555 $0 $0 $1,385 $1,385 $0 $1,385 $1,385 $0 $100 $240 $120 $260 $20 $20 1-90 Application to Replace Permanent Resident Card 1-130 Petition for Alien Relative 1-539 Application to Extend/Change Nonimmigrant Status I-765 Application for Employment Authorization N-336 Request for Hearing on a Decision in Naturalization Proceedings N-400 Application for Naturalization N-565 Application for Replacement Naturalization/Citizenship Document N-600 Application for Certificate of Citizenship N-600K Application for Citizenship and Issuance of Certificate G-1041 Genealogy Index Search Request G-1041A Genealogy Records Request DHS bases the proposed separate online and paper fees on ABC model results. When DHS proposes limited fee increases or to continue using the current fee, the calculation is based on the current fee instead of ABC model results. As such, there are not separate proposed fees for online and paper filing for immigration benefit requests with limited fee increases or held to the current fee. USCIS will further evaluate the effects of these changes in future biennial fee reviews. For example, if the level of online filing increases or as more benefit requests become available for online filing, then USCIS will incorporate that information into future fee reviews. H. Form I–485, Application To Register Permanent Residence or Adjust Status khammond on DSKJM1Z7X2PROD with PROPOSALS2 1. Interim Benefits Usually, a primary immigration benefit request must be approved before an applicant can receive associated benefits such as employment authorization or a travel document or both. That is, USCIS only grants associated benefits after or at the same time as it grants the primary immigration benefit request. However, in some situations, an applicant may VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 qualify for an associated immigration benefit while the primary benefit request is still pending adjudication. For example, in certain instances, a person with a pending adjustment of status application may apply for employment authorization or a travel document or both. See 8 CFR 274a.12(c)(9). When associated benefits are issued while a primary benefit request is pending, USCIS refers to them as ‘‘interim’’ benefits. DHS proposes to require separate filing fees for Form I–765, Application for Employment Authorization, and Form I–131, Application for Travel Document, when filed concurrently with Form I–485, Application to Register Permanent Residence or Adjust Status, or as interim benefit requests on the basis of a pending Form I–485 filed on or after the effective date of this rule. Before the FY 2008/2009 fee rule, applicants paid separate fees for Form I– 765 and Form I–131 while waiting for USCIS to adjudicate Form I–485. Applicants who had not yet received a permanent residence card (PRC, also known as a ‘‘Green Card’’ or Form I– 551), but who had to renew these interim benefits, paid any associated fees for the renewals. See 72 FR 4894. PO 00000 Frm 00091 Fmt 4701 Sfmt 4702 Since the FY 2008/2009 fee rule, USCIS has allowed applicants who properly file and pay the required fee for Form I–485 to file Forms I–765 and I–131 without paying the fees for those forms. Form I–765 or Form I–131, or both, may be filed concurrently with Form I–485 or as standalone interim benefit requests while Form I–485 is still pending. Applicants who have not yet received a PRC but who have to renew these interim benefits also do not have to pay the associated fees. For the FY 2008/ 2009 fee rule, USCIS determined that calculating fees for Form I–485 at an amount that would include interim benefits would improve efficiency and save most applicants money. See 72 FR 4894 and 29861–29862. By providing that the fees for interim benefits would be included in the fee for Form I–485, USCIS addressed the perception that it benefits from increased revenue by processing Form I–485 more slowly. See 72 FR 4894 and 72 FR 29861–29862 (May 30, 2007). The FY 2010/2011 fee rule continued the practice of ‘‘bundling’’ the fees for interim benefits and Form I–485. See 75 FR 58968. In the FY 2016/2017 fee review, USCIS calculated the workload volume and fee-paying percentage for Forms I– E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.053</GPH> Table 15: Proposed Fees for Online Filing 492 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules DHS proposes to charge separate fees for Form I–765 and Form I–131 when filed concurrently with Form I–485 or as interim benefit requests while Form I– 485 is pending adjudication. See proposed 8 CFR 106.2(a)(16); 8 CFR 106.2(a)(32); 8 CFR 106.2(a)(7)(iii).256 The proposed change would be subject to phased implementation. Specifically, individuals who filed a Form I–485 after July 30, 2007 (the FY 2008/2009 fee rule), and before this change proposed in this rule takes effect will continue to be able to file Form I–765 and Form I– 131 without additional fees while their Form I–485 is pending and would, therefore, be unaffected by this change. Individuals who filed Form I–485 before the FY 2008/2009 fee rule and those who file Form I–485 on or after the date the proposed change becomes effective would pay separate fees for the interim benefits. The proposed changes are summarized in Table 16. The date the proposed changes would take effect is not yet available. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 16: Form 1-485 Filing Dates and Interim Benefits Form 1-485 Filing Date Bundled Before July 30, 2007 After July 30, 2007, but before implementation of this change via final rule After implementing this proposed change with a final rule Fee Applies? No Yes No DHS proposes this change to reduce the proposed fee increases for Form I– 485 and other forms. For example, in the FY 2016/2017 fee rule, USCIS isolated the workload volume and feepaying percentage of Forms I–765 and I– 131 that are not associated with Form I– 485. See 81 FR 26918. Isolating the volumes for interim benefits reduced the overall volume on the fee schedule because USCIS only counted interim benefit volumes as part of the Form I– 485 forecast instead of counting them twice (for Form I–485 and the interim benefit). USCIS expects approximately 500,000 new fee-paying annual interim benefit applications in the FY 2022/ 2023 forecast as a result of the proposed change. In the proposed fee schedule, USCIS assumes these interim benefit applicants will pay the applicable fees for Forms I– 485, I–765, and I–131. If applicants continued to only pay a bundled fee, then the proposed fee for Form I–485 would be $1,715, which is $175 or approximately 37 percent more than the actual proposed fee of $1,540. See 8 CFR 103.7(b)(1)(i)(U) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(16). Other proposed fees would also change on this hypothetical fee schedule including Form I–765, Application for Employment Authorization. If USCIS continued to allow free interim benefits, the proposed Form I–765 fee would be $825 when filed on paper. This would be $415 or approximately 101 percent more than the current $410 fee. By proposing that Form I–765 require the fee when filing as an interim benefit, the proposed Form I–765 fee is $650, which is $240 or approximately 59 percent more than the current $410 fee. See 8 CFR 103.7(b)(1)(i)(II) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(43)(ii). By having one fee for Form I–485 and interim benefits, the weighted average fee increase would be 51-percent compared to the 40-percent average fee increase in the proposed fee schedule.257 In a bundled scenarios, USCIS only counts Form I–485 as a fee-paying receipt. In a scenario without bundled interim benefits, USCIS may count Forms I–485, I–765, and I–131 each as up to three fee-paying receipts. In general, fees are higher in a fee schedule with bundled fee interim benefits because it has lower fee-paying volumes than the proposed fee schedule. This means there are fewer immigration benefit requests from which USCIS can recover projected costs in a fee schedule with bundled fee interim benefits. For example, USCIS estimates that approximately 65 percent of Form I–765 applicants may pay the Form I–765 fee in a scenario without bundled interim benefits; this is the proposed fee scenario with higher fee-paying volumes overall. In a bundled scenario, approximately 45 percent of Form I–765 applicants may pay the fee for Form I– 765. While Form I–485 applicants would not have to pay the fee for Form I–765 in a bunded scenario, the fee for all other Form I–765 applicants would be higher because a bundled scenario reduces fee-paying receipts overall. In the bundled scenario, people would pay more to recover the cost of Form I–765 because of the approximate 20 percent difference between the two scenarios. These points of comparison ignore additional fee exemptions that are also part of the proposed fees. Put another way, if USCIS performs less bundled work, then applicants pay lower fees for that work because it will increase feepaying volumes for Forms I–485, I–765, and I–131. If USCIS continues to offer bundled interim benefits, then other immigration benefit request fees will be higher. DHS proposes separate fees for interim benefit applications and Form I– 485 applications in order to lower the proposed fees for most other applicants, petitioners, and requestors, and to tailor applicants’ costs more directly to the benefits for which they apply. 256 In the 2020 fee rule, DHS required separate filing fees when filing Form I–765, Application for Employment Authorization, and Form I–131, Application for Travel Document, concurrently with a Form I–485, Application to Register Permanent Residence or Adjust Status, or after USCIS accepts their Form I–485 and while it is still pending. DHS is not proposing to reverse that change and is proposing it again in this rule for the reasons stated. 257 USCIS uses a weighted average instead of a straight average because of the difference in volume by immigration benefit type and the resulting effect on fee revenue. In a fee schedule with free interim benefits, the sum of the current fees multiplied by the projected FY 2022/2023 fee-paying receipts for each immigration benefit type, divided by the total fee-paying receipts is $522. This is $4 higher than in the proposed fee schedule because the fee-paying volumes are lower when DHS assumes free interim benefits. The weighted average proposed fee is $790, $65 or approximately 16 percent higher than the weighted average current fee of $522 in this hypothetical fee schedule that assumes free interim benefits. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.054</GPH> 765 and I–131 that were not associated with a Form I–485. This enabled USCIS to derive a fee-paying percentage for Forms I–765 and I–131 not filed concurrently with a Form I–485. See 81 FR 26918 (May 4, 2016) and 81 FR 73300. By isolating standalone Form I– 765 and Form I–131 interim benefit applications from those filed concurrently with Form I–485, USCIS more accurately assessed fee-paying percentages, fee-paying volumes, and fees for all three benefit types. Id. Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules DHS proposes to increase the Form I– 485 fee to $1,540, which is $400 or 35 percent more than the current $1,140 fee that includes interim benefits. USCIS did not realize the efficiency gains anticipated when it originally bundled interim benefits in the FY 2008/2009 fee rule. See 72 FR 4894. This is due to a number of reasons. Mainly, annual numerical visa limits established by Congress and high demand have created long wait times for some visa categories, known as retrogression. Some Form I– 485 applicants must wait years for visas to become available again after they file their adjustment of status applications.258 While USCIS has some control over its own allocation of resources to address processing times and backlogs, USCIS has no direct control over delays caused by the DOS’s allocation of visa numbers and Congress’ annual visa numerical limits. USCIS has taken some actions to alleviate the filing burden and fees on those individuals whose Form I–485 applications are still pending due to the lack of available immigrant visas. For example, DHS, as of June 9, 2021, provides EADs with 2-year rather than 1-year validity periods to decrease the burden on both the Department and applicants caused by long waits for visa availability.259 As a result of this proposal, new Form I–485 applicants would only pay for the benefits that they request. In the FY 2008/2009 and FY 2010/2011 fee rules, some commenters stated they did not want to pay for additional benefits they did not want, need, or receive, which was a consequence of the bundled fee approach. See 72 FR 29861–29863 (May 30, 2007) and 75 FR 58968. In previous fee rules, bundled interim benefit fees were only associated with a pending Form I–485. However, other applications may also warrant interim 493 benefits.260 DHS has decided it is more equitable to treat all petitioners and applicants who apply for interim benefits the same, regardless of the pending primary request that may grant interim benefits, even though some applicants would pay significantly more to adjust status and apply for one or more interim benefits. If USCIS continues offering bundled interim benefits, then other customers may bear the burden of higher fees as a result of bundled interim benefits that do not benefit them. For example, DHS believes it would present unfair barriers for unrelated applicants with limited financial resources (like asylum renewals or students) for Form I–765 to pay higher fees so that Form I–485 applicants would pay lower fees. Table 17 compares the current fees for Form I–485 applicants that may bundle interim benefits to the proposed fees without bundling. DHS acknowledges that applicants and petitioners may face additional difficulties in paying the proposed fees, and may be required to request a fee waiver if eligible, save money longer to afford the fees, or resort to credit cards or borrowing to pursue their or their family members’ immigration benefit. DHS has weighed these impacts and interests and considered alternatives to the proposals in this rule as described in this preamble. DHS is committed to affordability and access for all and acknowledges that the increase in some fees may appear contrary to this commitment. As discussed above, however, bundled interim benefits are currently making other immigration 258 See USCIS, ‘‘Visa Retrogression,’’ available at https://www.uscis.gov/green-card/green-cardprocesses-and-procedures/visa-availability-prioritydates/visa-retrogression (last updated Mar. 8, 2018). 259 See USCIS, ‘‘USCIS Policy Manual’’ (Vol. 10), Employment Authorization, Part B, Specific Categories, Chapter 4, Adjustment Applicants Under INA sec. 245, Policies to Improve Immigration Services at https://www.uscis.gov/ sites/default/files/document/policy-manualupdates/20210609-EmploymentAuthorization.pdf (last updated June 9, 2021). USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an individual’s authorization to work in the United States. See 8 CFR 274a.12(b). 260 Individuals may derive interim benefits from an Application for Temporary Protected Status, Form I–821. Unless otherwise stated in this proposed rule preamble, DHS uses interim benefits to refer to benefits associated with Form I–485, Application to Register Permanent Residence or Adjust Status. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.055</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 17: Current and Proposed Fees for Adjustment of Status with Interim Benefits Immigration Benefit Request Current Proposed Difference Percentage Fees Fees Difference 1-485, Application to Register $1,140 $1,540 $400 35 percent Permanent Residence or Adjust Status I-765, Application for Employment $410 $650 $240 59 percent Authorization - Paper 1-131, Application for Travel $575 $630 $55 10 percent Document -100 Biometric Services Fee $85 $0 ($85) percent Total Fees for Form 1-485 and $1,540 $315 26 percent biometric services Total Fees for Forms 1-485 and 1-765 $2,190 $965 79 percent and biometric services $1,225 Total Fees for Forms 1-485 and 1-131 $2,170 $945 77 percent and biometric services Total Fees for Form 1-485, all interim 130 $2,820 $1,595 benefits, and biometric services percent 494 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules benefits less affordable. DHS requests comments on the proposed change to Form I–485 and interim benefits. 2. Form I–485 Fee for Child Under 14, Filing With Parent Currently, Form I–485 has two fees: the fee for an adult is $1,140, and the fee for a child under the age of 14 concurrently filing with a parent is $750. See 8 CFR 103.7(b)(1)(i)(U) (Oct. 1, 2020). DHS proposes to require payment of the proposed $1,540 fee for all applicants, including children under the age of 14 years concurrently filing Form I–485 with a parent.261 See 8 CFR 103.7(b)(1)(i)(U)(2) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(16).262 DHS no longer believes there is a cost basis for the two different Form I–485 fees. As explained in the FY 2016/2017 fee rule, USCIS does not track the adjudication time for Form I–485 based on the age of the applicant, so there are no data showing a cost difference correlated to the difference in applicant age. See 81 FR 73301. The FY 2016/ 2017 fee rule calculated the $750 fee using the model output to comply more closely with the ABC methodology for full cost recovery. See 81 FR 26919. USCIS assumed that the $750 fee would not include the cost of an EAD. Id. As such, the completion rate for the $750 fee was lower than for most adults. However, because DHS proposes to charge separate fees for interim benefits, there are no longer any Form I–765 adjudication costs included in the calculation of the fee, meaning that the previous rationale for providing a discount no longer exists. However, children under the age of 14 do not typically pay the $85 biometric services fee required for adults that apply to adjust status, which this rule proposes to bundle into the fee for Form I–485. In the proposed Form I–485 fee, USCIS assumes the same completion rate and biometric services for adults and children to reflect USCIS data and processes, and because DHS proposes to separate interim benefit request fees from the fee for Form I–485. DHS believes that a single fee for Form I–485 will reduce the burden of administering separate fees and better reflect the cost of adjudication. This proposal will affect a small percentage of Form I–485 applicants. In FY 2019 and FY 2020, approximately five to six percent of Form I–485 applicants paid the $750 fee. See Table 18 for Form I–485 feepaying receipts and percentages for the 2 years. Form 1-485 Applicant Type Current Fee FY 2019 Fee-Paying Receipts Percent of FY 2019 FY 2020 Fee-Paying Receipts Percent of FY 2020 $750 26,437 5 30,166 6 $1,140 462,844 95 446,980 94 NIA 489,281 100 477,146 100 Applicant under the age of 14 years who submits the application concurrently with the Form 1-485 of a parent All other fee-paying applicants for Form 1-485 Total 3. INA Sec. 245(i) Statutory Sum khammond on DSKJM1Z7X2PROD with PROPOSALS2 In addition, DHS is proposing to clarify the statutory sum for applicants for adjustment of status under INA sec. 245(i).263 Such applicants are required to properly file Form I–485 with fee along with Form I–485 Supplement A and the $1,000 statutory sum, unless exempted by the statute. USCIS proposes that the statutory sum for Form I–485 Supplement A, Adjustment of Status Under Section 245(i), be 261 The parent may be seeking classification as an immediate relative of a U.S. citizen, a familysponsored preference immigrant, or a family member accompanying or following to join a spouse or parent under sections 201(b)(2)(A)(i), 203(a)(2)(A), or 203(d) of the INA; 8 U.S.C. 1151(b)(2)(A)(i), 1153(a)(2)(A), or 1153(d). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 revised to clarify that Form I–485 Supplement A and the $1,000 statutory sum must be submitted when Form I– 485 is filed or still pending. See proposed 8 CFR 106.2(a)(21). DHS is also proposing to remove the additional reference from the Form I–485 Supplement A that states there is no required statutory sum when the applicant is an unmarried child under 17 or the spouse or the unmarried child under 21 of an individual with lawful immigration status and who is qualified for and has applied for voluntary departure under the family unity program. See 8 CFR 103.7(b)(1)(i)(V) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(17). Those exemptions from the required statutory sum are explicitly provided by statute and will be included in the applicable form instructions. See INA sec. 245(i)(1)(C), 8 U.S.C. 1255(i)(1)(C). Therefore, it is unnecessary to codify them in the CFR. 262 DHS made this change in the 2020 fee rule and is proposing that it not be reversed for the reasons stated. 263 The additional $1,000 sum is required to be submitted with each INA sec. 245(i), 8 U.S.C. 1255(i), adjustment of status application, unless the applicant is (1) an unmarried child under age 17, or (2) the spouse or unmarried child of a legalized alien who satisfies the requirements for an exemption in 8 CFR 245.10(c). PO 00000 Frm 00094 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.056</GPH> Table 18: Form 1-485 Fee-Paying Receipts Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules I. Continuing To Hold Refugee Travel Document Fee for Asylees to the Department of State Passport Fee khammond on DSKJM1Z7X2PROD with PROPOSALS2 Consistent with U.S. obligations under Article 28 of the 1951 Convention relating to the Status of Refugees,264 DHS proposes to continue to link the fee charged for Form I–131, Application for Travel Document, to the DOS’s fee for a first time United States passport book when Form I–131 is filed by asylees, or by LPRs who obtained such status as asylees, to request a refugee travel document.265 In previous fee rules, DHS aligned the refugee travel document fees to the sum of the U.S. passport book application fee plus the additional execution fee that DOS charges for first time applicants. See 81 FR 73301 and 75 FR 58972. Since the FY 2016/2017 fee rule, DOS increased the execution fee from $25 to $35, which is a $10 or 40 percent increase. See DOS, ‘‘Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates—Passport Services Fee Changes,’’ 83 FR 4425 (Jan. 31, 2018). In addition, DOS increased the passport book security surcharge from $60 to $80, a $20 or 33 percent increase. See DOS, ‘‘Schedule of Fees for Consular Services-Passport Security Surcharge,’’ 86 FR 59613 (Oct. 27, 2021). Together, these two DOS rules represent a $30 increase in passport book fees since DHS last changed the refugee travel document fees. Under this proposal, DHS would increase refugee travel document fees by a conforming amount for asylees and LPRs who obtained such status as asylees. DHS refugee travel document fees for this population would be $165 for adults and $135 for children under the age of 16 years, consistent with U.S. passport fees. See proposed revised and republished 8 CFR 106.2(a)(7)(i) and (ii). As discussed in section VII.B.12. of this preamble, DHS proposes to exempt refugees from paying the fee for refugee travel documents. DHS estimates that the cost to USCIS of processing refugee travel documents exceeds the fee for a U.S. 264 The United States is party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S. 267 (1968), which incorporates articles 2 through 34 of the 1951 Convention. The United States is not party to the 1951 Convention. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 n.19 (1993) (‘‘Although the United States is not a signatory to the Convention itself, in 1968 it acceded to the United Nations Protocol Relating to the Status of Refugees, which bound the parties to comply with Articles 2 through 34 of the Convention as to persons who had become refugees because of events taking place after January 1, 1951.’’). 265 See 75 FR 58972 (Sept. 24, 2010) (discussing Article 28 standards for assessing charges for a refugee travel document). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 passport book. Consistent with past and current practice, DHS proposes to set other fees marginally higher to recover the difference between the cost of adjudicating Form I–131 for refugee travel documents and the revenue generated from the fees in light of the considerations and policy reasons described above relating to refugees. J. Form I–131A, Carrier Documentation DHS proposes to separate the fee for Form I–131A, Application for Carrier Documentation, from other travel document fees and maintain the current Form I–131A fee. See 8 CFR 103.7(b)(1)(i)(M)(3) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(8). The proposed fee for Form I–131A is the same as the current $575 fee. Id. USCIS began using Form I–131A, Application for Carrier Documentation, in 2016. See 80 FR 59805 (Oct. 2, 2015). In the FY 2016/2017 fee rule, DHS implemented a fee that was calculated using the total Form I–131 and I–131A workload. See 81 FR 73294–73295. Currently, certain LPRs may use Form I–131A to apply for a travel document (carrier documentation) if their PRC, also known as a ‘‘Green Card’’ or Form I–551, or their re-entry permit is lost, stolen, or destroyed while outside of the United States. Carrier documentation allows an airline or other transportation carrier to board the LPR without any penalty for permitting an individual to board without a visa or travel document. See INA sec. 273, 8 U.S.C. 1323 (providing for a fine of $3,000 for each noncitizen without proper documentation). In order to be eligible for carrier documentation, an LPR who was traveling on a PRC must have been outside the United States for less than 1 year, and an LPR who was traveling on a re-entry permit must have been outside the United States for less than 2 years. Form I–131A is not an application for a replacement PRC or reentry permit. DHS proposes that the fee for Form I– 131A does not change. While the result of the ABC model indicated that the fee should decrease, Form I–131A requires a different adjudicative process than Form I–131, including processing by DOS personnel outside of the United States, which affects the projected cost for Form I–131A. Other travel documents may be adjudicated inside or outside of the United States, while the DOS Bureau of Consular Affairs, located outside of the United States, will process Form I–131A following the closure of most USCIS international PO 00000 Frm 00095 Fmt 4701 Sfmt 4702 495 offices.266 The proposed fee includes direct costs to account for the fee DOS charges USCIS to adjudicate Form I– 131A applications, which is approximately $337 per application.267 In the FY 2020 interagency agreement and in this proposed rule, USCIS projects that DOS will receive approximately 8,000 Forms I–131A each year. In addition, the proposed fee includes a portion of the cost of RAIO staff. Among other duties, RAIO oversees the interagency agreement with the DOS. USCIS may also process some Form I–131A requests at the remaining offices abroad. However, USCIS is uncertain how many. USCIS is unable to estimate a workload forecast because the COVID–19 pandemic forced the remaining USCIS locations abroad to close to the public shortly after the reorganization. In light of this uncertainty, DHS decided to maintain the current fee to generate more revenue. DHS will reassess the fee in future fee reviews. K. Separating Fees for Form I–129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification Currently, employers and other qualified filers, such as agents, sponsoring organizations and investors (collectively referred to as a ‘‘benefit requestor’’ or separately referred to as a ‘‘petitioner’’ or ‘‘applicant,’’ as applicable) may use Form I–129, Petition for a Nonimmigrant Worker, to submit a benefit request on behalf of a current or future nonimmigrant worker to temporarily perform services or labor, or to receive training in the United States.268 Using this single form, petitioners or applicants can file petitions or applications for many different types of nonimmigrant workers.269 Some classifications also 266 See USCIS, ‘‘USCIS Will Adjust International Footprint to Seven Locations,’’ available at https:// www.uscis.gov/news/news-releases/uscis-willadjust-international-footprint-seven-locations (last updated Aug. 9, 2019). 267 The FY 2020 interagency agreement between DOS and USCIS uses an Economy Act rate of $313.11 for the adjudication. Additionally, State charges a $23.82 cashiering fee for each Form I– 131A. USCIS used FY 2020 rates when calculating the proposed fees. The total of these two fees is $336.93. 268 See USCIS, ‘‘Temporary (Nonimmigrant) Workers,’’ available at https://www.uscis.gov/ working-united-states/temporary-nonimmigrantworkers (last updated Sept. 7, 2011). See also 8 CFR 214.2(h)(2)(i)(A) (Oct. 1, 2020) (stating that ‘‘A United States employer seeking to classify an alien as an H–1B, H–2A, H–2B, or H–3 temporary employee must file a petition on Form I–129, Petition for Nonimmigrant Worker, as provided in the form instructions.’’). 269 For example, nonimmigrants workers in the following classifications: E–1, E–2, E–2C, H–1B, H– E:\FR\FM\04JAP2.SGM Continued 04JAP2 496 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules allow nonimmigrants to ‘‘self-petition’’ or file a petition or application on their own behalf. Some nonimmigrant classifications require use of Form I–129 supplemental forms, such as the H Classification Supplement, or additional separate forms, such as Form I–129S, Nonimmigrant Petition Based on Blanket L Petition. In some cases, certain petitioners or applicants must pay statutory fees in addition to a base filing fee. For example, several statutory fees exist for H and L nonimmigrant workers.270 In some cases, petitioners or applicants pay a single fee for multiple nonimmigrant beneficiaries. USCIS provides several optional checklists to help navigate the specific requirements of some nonimmigrant classifications. In the 2020 fee rule, DHS separated Form I–129 into the following forms: Form I–129E&TN, Petition for Nonimmigrant Worker: E and TN Classifications; Form I–129H1, Petition for Nonimmigrant Worker: H–1 Classifications; Form I–129H2A, Petition for Nonimmigrant Worker: H– 2A Classification; Form I–129H2B, Petition for Nonimmigrant Worker: H– 2B Classification; Form I–129L, Petition for Nonimmigrant Worker: L Classifications; Form I–129O, Petition for Nonimmigrant Worker: O Classifications; and Form I–129MISC, Petition for Nonimmigration Worker: H– 3, P, Q, or R Classifications. 8 CFR 106.2(a)(3) (Oct. 2, 2020). DHS and USCIS believed that splitting the form and proposing several different fees would simplify or consolidate the information requirements for petitioners and applicants as well as better reflect the cost to adjudicate each specific nonimmigrant classification. 84 FR 62307. khammond on DSKJM1Z7X2PROD with PROPOSALS2 2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–1S, P–2, P– 2S, P–3, P–3S, Q–1, R–1, TN1, and TN2. See Form I–129, Petition for a Nonimmigrant Worker, at https://www.uscis.gov/i-129 (last updated April 23, 2021). 270 Various statutory fees apply to H and L nonimmigrants. For more information on the fees and statutory authority, see USCIS, ‘‘H and L Filing Fees for Form I–129, Petition for a Nonimmigrant Worker,’’ available at https://www.uscis.gov/forms/ h-and-l-filing-fees-form-i-129-petitionnonimmigrant-worker (last updated/reviewed Feb. 2, 2018). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 In the 2020 fee rule, DHS also limited the number of multiple beneficiaries that could be requested on a single petition for nonimmigrant worker, provided a different fee for petitions for up to 25 named beneficiaries versus petitions for more than 25 named beneficiaries, and required that if a petition includes more than 25 beneficiaries, an additional petition is required. 8 CFR 214.2(h)(2)(ii) (Oct. 2, 2020). DHS estimated that it requires less time and resources to adjudicate a petition with unnamed workers than one with named workers. USCIS runs background checks on named workers, but it cannot do so for unnamed workers. After a petition for unnamed workers is approved, the petitioner finds workers and then the workers apply for nonimmigrant visas with DOS, who will then vet the worker before adjudicating the visa application. Therefore, USCIS believes that it takes less time for USCIS immigration services officers to adjudicate a petition with unnamed workers. 84 FR 62309. In this rule, DHS proposes different fees for Form I–129 based on the nonimmigrant classification being requested in the petition, the number of beneficiaries on the petition, and, in some cases, according to whether the petition includes named or unnamed beneficiaries. The proposed fees are calculated to better reflect the costs associated with processing the benefit requests for the various categories of nonimmigrant worker. The current base filing fee for Form I–129 is $460. See 8 CFR 103.7(b)(1)(i)(I) (Oct. 1, 2020). This base filing fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker (for example, landscaper, chef, scientist, computer programmer, physician, athlete, musician, etc.), whether an employee is identified, and without differentiating the amount of time it takes to adjudicate the different nonimmigrant classifications. In order to reflect these differences, DHS is proposing a range of fees for petitions and applications for nonimmigrant workers, listed in Table 19 and explained in the subsequent sections. USCIS believes the proposed PO 00000 Frm 00096 Fmt 4701 Sfmt 4702 different fees will better reflect the cost to adjudicate each specific nonimmigrant classification. In 2017, the DHS Office of Inspector General (OIG) released a report on H–1B visa participants.271 It discussed how USCIS verifies H–1B visa participants through the Administrative Site Visit and Verification Program (ASVVP). ASVVP includes site visits on all religious worker petitioners, including petitioners for R nonimmigrants, as well as randomly selected site visits for certain H–1B and L workers to assess whether petitioners and beneficiaries comply with applicable immigration laws and regulations. As a result of the OIG audit, USCIS began to collect better information on the costs associated with ASVVP. For example, ASVVP now uses unique project and task codes in the USCIS financial system to track spending. Based on FY 2020 spending, USCIS estimates that it may spend $8.4 million for ASVVP payroll in the FY 2022/2023 fee review budget. Additionally, USCIS tracks ASVVP hours by form type in the FDNS Data System, which USCIS uses to identify fraud and track potential patterns. In the FY 2022/2023 fee review, USCIS used some of this new information to identify distinct costs for these site visits. USCIS used the ASVVP hours by immigration benefit request to assign the costs of site visits to Forms I–129, I–360, and I–829. The proposed fees would result in the cost of ASVVP being covered by the fees paid by the petitioners in proportion to the extent to which ASVVP is being used for that benefit request. Additionally, USCIS now captures adjudication hours for nonimmigrant worker petitions based on the classification for which the petition is filed (see discussion of Completion Rates in section V.B.2.). Therefore, the proposed fees include the costs associated with the estimated adjudication hours for each of the new petitions being proposed in this rule. BILLING CODE 9111–97–P 271 DHS OIG, USCIS Needs a Better Approach to Verify H–1B Visa Participants (Oct. 20, 2017), https://www.oig.dhs.gov/sites/default/files/assets/ 2017/OIG-18-03-Oct17.pdf. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 497 Table 19: Proposed Form I-129CW Fee and Form 1-129 Fees by Nonimmigrant Classification Form N onimmigrant Current Proposed Change Percent Fee(s) Fee(s) Number Classification Chan2e 1-129 H-1 $460 $780 $320 70% Classification H-2A $1,090 $630 137% 1-129 Classification $460 (named); (named); (named); $530 $70 15% (unnamed) (unnamed) (unnamed) 1-129 H-2B $1,080 $620 135% Classification $460 (named); (named); (named); $580 $120 26% (unnamed) (unnamed) (unnamed) 1-129 L Classification $460 $1,385 $925 201% 1-129 H-3, P, Q, or R $460 $1,015 $555 121% Classifications $1,055 1-129 0 Classification $460 $595 129% EorTN $460 $1,015 $555 121% 1-129 Classifications 1-129CW CNMI-Only $460 $1,015 $555 121% Nonimmigrant Transitional Worker H-lB Electronic $10 $215 $205 2050% Registration Fee 1. Form I–129, Petition for Nonimmigrant Worker: H–1 Classification The H–1B nonimmigrant program is for individuals who will perform services in a specialty occupation, services relating to a Department of Defense cooperative research and development project or coproduction project, or services as a fashion model who is of distinguished merit and ability, while the H–1B1 nonimmigrant program is for nationals of Singapore or Chile engaging in specialty occupations. See INA sec. 101(a)(15)(H)(i)(b) and (a)(15)(H)(i)(b1); 8 U.S.C. 1101(a)(15)(H)(i)(b) and (a)(15)(H)(i)(b1).272 DHS proposes a fee of $780 for Form I–129 petitions when filed for H–1B and H–1B1 nonimmigrant classifications. The 272 See USCIS, ‘‘H–1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models,’’ available at https://www.uscis.gov/working-united-states/ temporary-workers/h-1b-specialty-occupations-dodcooperative-research-and-development-projectworkers-and-fashion-models (last updated Feb. 5, 2021). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 proposed fee more accurately incorporates the direct cost of USCIS fraud prevention efforts for H–1B workers and other planned changes. DHS does not propose any changes to statutory fee amounts for certain H–1B petitioners where it does not have the authority to change the amount of these fees.273 273 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 Treasury. USCIS retains five percent of the $1,500 or $750 American Competitiveness and Workforce Improvement Act fee. The remainder goes to the Department of Labor (DOL) and the National Science Foundation. USCIS keeps one-third of the $500 Fraud Detection and Prevention fee, while the remainder is split between the DOS and the DOL. These statutory fees are in addition to the current Form I–129 fee of $460 and optional premium processing fee of $1,500 or $2,500. See USCIS, ‘‘H and L Filing Fees for Form I–129, Petition for a Nonimmigrant Worker,’’ available at https:// www.uscis.gov/forms/h-and-l-filing-fees-form-i-129petition-nonimmigrant-worker (last updated/ reviewed Feb. 2, 2018). Premium processing fees are available at https://www.uscis.gov/i-907 (last updated Dec. 21, 2020). PO 00000 Frm 00097 Fmt 4701 Sfmt 4702 2. Form I–129, Petitions for H–2A or H– 2B Classifications The H–2A visa program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs.274 The H–2B visa program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.275 On March 6, 2017, the OIG issued an 274 See USCIS, ‘‘H–2A Temporary Agricultural Workers,’’ available at https://www.uscis.gov/ working-united-states/temporary-workers/h-2atemporary-agricultural-workers (last updated Jan. 12, 2021). 275 See USCIS, ‘‘H–2B Temporary NonAgricultural Workers,’’ available at https:// www.uscis.gov/working-united-states/temporaryworkers/h-2b-temporary-non-agricultural-workers (last updated Feb. 2, 2021). H–2B petitioners who file with USCIS are required to pay a $150 Fraud Detection and Prevention fee per petition regardless of the number of beneficiaries to which the petition pertains. DHS does not propose any change to this statutory fee because it lacks the authority to do so by rulemaking. See INA secs. 214(c)(13), 286(v); 8 U.S.C. 1184(c)(13), 1356(v). This statutory fee is in addition to the current Form I–129 fee of $460 and optional premium processing fee of $1,500. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.057</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C khammond on DSKJM1Z7X2PROD with PROPOSALS2 498 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules audit report after reviewing whether the fee structure associated with H–2 petitions is equitable and effective.276 OIG identified a number of issues and provided recommendations to address the issues. In response to OIG recommendations, USCIS proposes the following changes: • Separate fees for petitions with named workers and petitions with unnamed workers; • Limit the number of named workers that may be included on a single petition to 25. DHS proposes separate H–2A and H– 2B fees for petitions with named workers and unnamed workers. Currently, petitions for H–2A or H–2B workers may include named or unnamed workers. Petitioners must name workers when: (1) the petition is filed for a worker who is a national of a country not designated by the Secretary of Homeland Security as eligible to participate in the H–2A or H– 2B programs; or (2) the beneficiary is in the United States. See 8 CFR 214.2(h)(2)(iii) (Oct. 1, 2020). In addition, USCIS may require the petitioner to name H–2B workers where the name is needed to establish eligibility for H–2B nonimmigrant status. USCIS estimates that it requires less time and resources to adjudicate a petition with unnamed workers than one with named workers. USCIS runs background checks on named workers but cannot do so for unnamed workers. After the petition is approved, the petitioner finds workers and the worker applies for a nonimmigrant visa with DOS, who will then vet the worker. The 2020 fee rule relied on separate USCIS estimated hours per petition for named or unnamed beneficiaries. In FY 2021, USCIS began tracking Form I–129 adjudication hours by petitions for named or unnamed beneficiaries. This proposal is based on those hours for the first 6 months of FY 2021, which was the most recent available at the time of the FY 2022/2023 fee review. USCIS data indicate that it takes less time for a USCIS immigration services officer to adjudicate a petition with unnamed workers. The proposed fees reflect the average adjudication time estimated by USCIS. USCIS proposes to implement a limit of 25 named beneficiaries per petition. Proposed 8 CFR 214.2(h)(2)(ii), (h)(5)(i)(B). Currently, there is no limit on the number of named or unnamed workers that may be on a single petition. 276 DHS OIG, ‘‘H–2 Petition Fee Structure Is Inequitable and Contributes to Processing Errors’’ (Mar. 6, 2017), available at https://www.oig.dhs.gov/ sites/default/files/assets/2017/OIG-17-42Mar17.pdf. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 USCIS currently charges a flat fee regardless of whether a petition includes one or hundreds of named temporary nonimmigrant workers. However, because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary. In one case, a petitioner included more than 600 named workers in one petition.277 OIG observed that the flat fee structure (meaning the same fee regardless of the number of nonimmigrants included in the petition) disproportionally costs more per nonimmigrant for petitions with few beneficiaries compared to those with large numbers of beneficiaries. In other words, petitioners filing petitions with low named beneficiary counts subsidize the cost of petitioners filing petitions with high named beneficiary counts. OIG’s interviews of USCIS immigration services officers indicated that a maximum of 10 nonimmigrant workers could usually be processed within a normal workday.278 DHS estimates the proposed change will increase H–2A and H–2B petition filing volume by approximately 1,800 after comparing our H–2A and H–2B petition forecasts for FY 2022/2023 with or without the proposed change. DHS assumes that the total number of named beneficiaries requested by an employer would remain the same, so that an employer petitioning for more than 25 named beneficiaries would file multiple petitions. The proposed fees would address the imbalances in the current fee structure identified by the OIG audit. For example, the proposed $530 fee for an H–2A petition without named workers is $560 less than the proposed $1,090 fee for an H–2A petition with named workers because the adjudication of petitions requesting unnamed workers requires less time. 3. Form I–129, Petition for Nonimmigrant Worker: L Classification Under current requirements, petitioners sponsoring L nonimmigrant workers, who are intracompany transferees,279 may be required to 277 Id. at 13. at 17. 279 The L–1 intracompany transferee nonimmigrant classification permits a multinational organization to transfer certain employees from one of its foreign entities to one of its affiliated entities in the United States. The L–1A classification is for employees coming to the United States temporarily to perform services in a managerial or executive 278 Id. PO 00000 Frm 00098 Fmt 4701 Sfmt 4702 submit additional statutory fees or other additional forms to USCIS along with Form I–129. For example, two statutory fees may apply for L nonimmigrant workers.280 Some petitions require the additional Form I–129S, Nonimmigrant Petition Based on Blanket L Petition. DHS is not proposing different fees for managers and executives, because the agency has no records on the difference in completion rates or costs for processing petitions for managers and executives. USCIS currently captures completion rates for H–1B, L, and other types of petitions, but not for subgroups within classifications, such as managers and executives. The $1,385 proposed fee is based partly on the average completion rate for L–1 petitions. The proposed fees also assign the direct costs of ASVVP site visits, currently used for certain H–1B, L, and all religious workers, to the specific form for the classification. 4. Form I–129, Petition for Nonimmigrant Worker: O Classification DHS proposes a fee of $1,055 for Form I–129 petitions filed to request O classifications. Similar to some other proposed changes to Form I–129, DHS proposes to limit each Form I–129 filed for O classifications to 25 named beneficiaries.281 Proposed and republished 8 CFR 214.2(o)(2)(iv)(F). As previously discussed in the H–2A and H–2B section above, limiting the number of named beneficiaries simplifies and optimizes the adjudication of these petitions, which can lead to reduced average processing times for a petition. Because USCIS completes a background check for each named beneficiary, petitions with more named beneficiaries require more time and resources to adjudicate than petitions with fewer named capacity. The L–1B classification is for employees coming to the United States temporarily to perform services that require specialized knowledge. See INA sec. 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L). 280 Certain L petitioners may have to pay up to $5,000 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 derived from these fees. CBP receives 50 percent of the $4,500 9–11 Response and Biometric Entry-Exit fee revenue and the remaining 50 percent is deposited into the General Fund of the Treasury. USCIS retains one-third of the $500 Fraud Detection and Prevention fee revenue, while the remainder is split between the DOS and the DOL. These statutory fees are in addition to the current Form I–129 fee of $460 and optional premium processing fee of $2,500. See USCIS, ‘‘H and L Filing Fees for Form I–129, Petition for a Nonimmigrant Worker,’’ available at https://www.uscis.gov/forms/h-and-lfiling-fees-form-i-129-petition-nonimmigrant-worker (last updated Feb. 2, 2018). 281 While O–1 petitions are limited to a single named beneficiary, a petition for O–2 nonimmigrant workers may include multiple named beneficiaries in certain instances. See 8 CFR 214.2(o)(2)(iii)(F). E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary. Thus, limiting the number of named beneficiaries may ameliorate the inequity to petitioners filing petitions with low beneficiary counts of effectively subsidizing the cost of petitioners filing petitions with high beneficiary counts. USCIS currently captures adjudication hours for these types of petitions. As stated in section V.B.2., Completion Rates, the proposed fee is partly based on these data. 5. Form I–129, Petition for Nonimmigrant Worker: E and TN Classifications DHS proposes a fee of $1,015 for Form I–129 petitions filed for Treaty Trader (E–1), Treaty Investor (E–2), E–3, and TN classifications. The Treaty Trader (E–1) and Treaty Investor (E–2) classifications are for citizens of countries with which the United States maintains treaties of commerce and navigation. The applicant must be coming to the United States to engage in substantial trade principally between the United States and the treaty country (E–1), to develop and direct the operations of an enterprise in which the applicant has invested or is in the process of investing a substantial amount of capital (E–2), or to work in the enterprise as an executive, supervisor, or essentially skilled employee. See INA sec. 101(a)(15)(E), 8 U.S.C. 1101(a)(15)(E); 8 CFR 214.2(e). An E–2 CNMI or E–2C investor is a noncitizen who seeks to enter or remain in the CNMI in order to maintain an investment in the CNMI that was approved by the CNMI government before November 28, 2009. This classification allows an eligible noncitizen to be lawfully present in the CNMI in order to maintain the investment during the transition period from CNMI to Federal immigration law, which was extended by Public Law 115–218, sec. 3(a) on July 24, 2018, and will expire on December 31, 2029. See 48 U.S.C 1806; proposed and republished 8 CFR 214.2(e)(23). The E– 3 classification applies to nationals of Australia who are coming to the United States solely to perform services in a specialty occupation requiring theoretical and practical application of a body of highly specialized knowledge and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States. See INA secs. 101(a)(15)(E) and 214(i)(1); 8 U.S.C. 1101(a)(15)(E) and 1184(i)(1). The TN classification was originally created to implement part of the trilateral North VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States. NAFTA was replaced by the U.S.-Mexico-Canada Agreement (USMCA). The USMCA entered into force on July 1, 2020. The USMCA did not make any changes to the Immigration chapter of NAFTA that have significance for this proposed rule. The USMCA retains all substantive elements of the former NAFTA, and the TN designation continues to be used for NAFTA/USMCA professionals.282 TN admissions under NAFTA were governed by the list of Professionals in Appendix 1603.D.1 to Annex 1603 of NAFTA. Under the USMCA, TN admissions are governed by the (identical) list of Professionals now found in USMCA Chapter 16 Appendix 2. For the purposes of discussing TN classification, this document uses the term ‘‘USMCA’’ but applies to nonimmigrants under both the former ‘‘NAFTA’’ and ‘‘USMCA’’ interchangeably. In accordance with the USMCA, a citizen of Canada or Mexico who seeks temporary entry as a businessperson to engage in certain business activities at a professional level may be admitted to the United States. See INA sec. 214(e), 8 U.S.C. 1184(e); 8 CFR 214.6; proposed 8 CFR 106.2(a)(3)(viii). USCIS does not have separate completion rates for the E and TN classifications. Currently, USCIS adjudicators report hours on these classifications in a catch-all Form I–129 category. 6. Form I–129, Petition for Nonimmigrant Worker: H–3, P, Q, or R Classifications DHS proposes to create a fee of $1,015 for the remaining nonimmigrant worker classifications: H–3, P, Q, and R. See proposed 8 CFR 106.2(a)(3)(viii). The costs used to determine the proposed fee for these classifications aggregate all identifiable costs associated with the adjudication of these different visa classifications, including the costs of administering site visits for R visa workers under the ASVVP.283 As previously discussed in sections 2 and 4, DHS proposes to limit petitions for H–3, P, Q, or R classifications that allow 1 petition to be filed for multiple beneficiaries to 25 named beneficiaries. Proposed 8 CFR 214.2(h)(2)(ii), 8 CFR 214.2(p)(2)(iv)(F), and 8 CFR 214.2(q)(5)(ii). As stated previously, this change is expected to simplify and 282 See United States-Mexico-Canada Agreement Implementation Act, Public Law 116–113 (2020). 283 The estimated cost of ASVVP for this proposed fee is $69. See the Direct Costs column of Appendix Table 6 in the supporting documentation in the docket. PO 00000 Frm 00099 Fmt 4701 Sfmt 4702 499 optimize the adjudication of these petitions, which is expected to lead to reduced processing times and reduced completion rates. Because USCIS completes a background check for each named beneficiary, petitions with more beneficiaries require more time and resources to adjudicate than petitions with fewer named beneficiaries. This means the cost to adjudicate a petition increases with each additional named beneficiary. Thus, limiting the number of named beneficiaries may ameliorate the inequity to petitioners filing petitions with low beneficiary counts of effectively subsidizing the cost of petitioners filing petitions with high beneficiary counts. USCIS does not have separate completion rates for the H–3, P, Q, or R classifications. Currently, USCIS adjudicators report hours on these classifications in a catch-all Form I–129 category. As such, DHS lacks the information to propose separate fees for each of these classifications. DHS proposes to republish a paragraph of regulatory text that incorporates statutory changes and longstanding practices that allow petitions for multiple P nonimmigrants. See proposed republished 8 CFR 214.2(p)(2)(iv)(F). Specifically, DHS proposes and republishes a reference to ‘‘team’’ to account for INA sec. 214(c)(4)(G), 8 U.S.C. 1184(c)(4)(G) (The Secretary of Homeland Security shall permit a petition under this subsection to seek classification of more than one alien as a nonimmigrant under section 1101(a)(15)(P)(i)(a) of this title), which was added in 2006 and mandates DHS to allow a petitioner to include multiple P–1A athletes in one petition. See id. and Public Law 109–463, 120 Stat. 3477 (2006). DHS also proposes to retain the revisions from the 2020 final fee rule as set out in proposed 8 CFR 214.2(p)(2)(iv)(F) because certain athletic teams applying for P–1 nonimmigrant classification and groups applying for P–2 or P–3 nonimmigrant classification are not necessarily required to establish reputation of the team or group as an entity. Id. 7. Separating Form I–129 Into Multiple Forms DHS is not separating Form I–129 into multiple forms in this rule as it did in the 2020 fee rule, but may take that action separately as a revision of the currently approved Form I–129 information collection under the PRA. See 86 FR 46260, 86 FR 46261, and 86 FR 46263 (August 18, 2021). Although DHS separated Form I–129 into different forms in the 2020 fee rule, the form and its instructions can be revised in that same way using the procedures E:\FR\FM\04JAP2.SGM 04JAP2 500 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules provided in 5 CFR part 1320 and obtaining approval from the OMB.284 As stated in section V.E.1 of this preamble, form numbers are included for informational purposes, but USCIS may collect fees for immigration benefit requests regardless of the assigned form number. If the Form I–129 is separated into smaller forms with different names in the future, then the new, separate forms for nonimmigrant petitions will each have the same fee that is established for that nonimmigrant classification if this rule is final. Finally, as previously noted in the preamble, DHS proposes to remove references to ‘‘Form I–129’’ from 8 CFR. See e.g. 8 CFR 214.1 and 214.2 (Oct. 1, 2020); proposed 8 CFR 214.1 and 214.2. khammond on DSKJM1Z7X2PROD with PROPOSALS2 8. Commonwealth of the Northern Mariana Islands Fees DHS proposes to create a fee of $1,015 for Form I–129CW, Petition for a CNMIOnly Nonimmigrant Transitional Worker. See proposed 8 CFR 106.2(a)(4). Two recent public laws affected statutory fees for the CNMI. The Northern Mariana Islands Economic Expansion Act, Public Law 115–53, section 2, 131 Stat. 1091, 1091 (2017) (2017 CNMI Act) increased the CNMI education funding fee from $150 to $200. See 48 U.S.C. 1806(a)(6)(A)(i). USCIS began accepting this increased fee on August 23, 2017.285 DHS proposes to make conforming edits to the fee for the Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I–129CW, because of this statutory change. See 8 CFR 103.7(b)(1)(i)(J) (Oct. 1, 2020); proposed 8 CFR 106.2(c)(7). Employers must pay the fee for every beneficiary that they seek to employ as a CNMI-only transitional worker. The fee must be paid at the time the petition is filed. By statute, since the fee is for each worker approved, USCIS refunds the CNMI education funding fee if the petition is not approved. The fee is a recurring fee that petitioners must pay every year. A prospective employer requesting issuance of a permit with a validity period longer than 1 year must pay the fee for each year of requested validity. USCIS transfers the revenue from the CNMI education funding fee to the treasury of the Commonwealth Government to use for vocational 284 The Administrative Procedure Act excepts ‘‘. . . rules of agency organization, procedure or practice.’’ 5 U.S.C. 553(b)(A); James v. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000). 285 USCIS, ‘‘New Legislation Increases Availability of Visas for CNMI Workers for Fiscal Year 2017,’’ available at https://www.uscis.gov/ news/news-releases/new-legislation-increasesavailability-visas-cnmi-workers-fiscal-year-2017 (last updated on Aug. 28, 2017). VerDate Sep<11>2014 21:38 Jan 03, 2023 Jkt 259001 education, apprenticeships, or other training programs for United States workers. The Northern Mariana Islands U.S. Workforce Act of 2018, Public Law 115–218, sec. 3, 132 Stat. 1547 (2018) (2018 CNMI Act), granted DHS the authority to adjust the fee for inflation. See 48 U.S.C. 1806(a)(6)(A)(ii). DHS proposes a $10 adjustment to the $200 CNMI education funding fee based on the methodology described in the authorizing statute.286 Beginning in FY 2020, DHS may adjust the CNMI education funding fee once per year by notice in the Federal Register.287 The adjustment must be based on the annual change in the CPI–U published by the BLS. See proposed 8 CFR 106.2(c)(7)(iii). Therefore, the CNMI education funding fee would be $210 (rounded to the nearest $5 increment). Although the law provides DHS with explicit authority to adjust the fee for inflation based on the CPI–U, DHS includes this proposed increase along with other fees that USCIS collects. DHS took a similar approach when it first increased the premium processing fee in 2010. See 75 FR 33477. The final rule will establish an amount based upon the latest published annual CPI–U before the final rule publication. DHS may revisit inflation increases to the CNMI education funding fee in future fee rules or separately. In addition to authorizing inflation adjustments for the CNMI education funding fee, the 2018 CNMI Act created a new $50 CNMI fraud prevention and detection fee. 2018 CNMI Act, sec. 3 (amending 48 U.S.C. 1806(a)(6)(A)(iv)). The new $50 fraud prevention and detection fee is in addition to other fees that employers must pay for petitions to employ CNMI-only transitional workers. See proposed 8 CFR 106.2(c)(6). USCIS began accepting the fee on July 25, 2018.288 The new fee is only due at the 286 The unadjusted annual average CPI–U for 2019 was 255.657. See BLS, CPI for All Urban Consumers (CPI–U) 1982–84=100 (Unadjusted)— CUUR0000SA0, available at https://data.bls.gov/ cgi-bin/surveymost?bls (last visited Feb. 18, 2022). In 2021, it was 270.97, a 15.313 or approximately a 5.99 percent increase. Id. The $200 fee adjusted for inflation is approximately $212, a $12 increase. When rounded to the nearest $5, the inflation adjusted fee would be $210. 287 Beginning in FY 2020, the Secretary of Homeland Security, through notice in the Federal Register, may annually adjust the supplemental fee imposed under clause (i) by a percentage equal to the annual change in the Consumer Price Index for All Urban Consumers (CPI–U) published by the Bureau of Labor Statistics (BLS). 48 U.S.C. 1806(a)(6)(A)(ii). 288 USCIS, ‘‘New Law Extends CNMI CW–1 Program, Mandates New Fraud Fee, and Will Require E-Verify Participation,’’ available at https:// www.uscis.gov/news/alerts/new-law-extends-cnmicw-1-program-mandates-new-fraud-fee-and-willrequire-e-verify-participation (last updated on Oct. 23, 2018). PO 00000 Frm 00100 Fmt 4701 Sfmt 4702 time of filing and is a single $50 fee per petition, not a fee charged per beneficiary like the CNMI education funding fee. USCIS must use the revenue for preventing immigration benefit fraud in the CNMI, in accordance with INA sec. 286(v)(2)(B), 8 U.S.C. 1356(v)(2)(B). See also 48 U.S.C. 1806(a)(6)(A)(iv), as amended by 2018 CNMI Act, sec. 3. DHS also proposes conforming edits to CNMI regulations regarding fee waivers and biometric services. Currently, some CNMI applicants and beneficiaries may qualify for a fee waiver based on inability to pay or other reasons. See 8 CFR 214.2(e)(23)(xv), (w)(5), and (w)(14)(iii). Generally, fee waivers are not available for employment-based applications and petitions. However, when DHS established the CW–1 petition fees, it decided to treat the CNMI with more flexibility in this regard. See 76 FR 55513–55514 (Sept. 7, 2011). DHS proposes in this rule to continue to offer fee waivers for CNMI applicants filing Form I–129CW and Form I–539. See proposed 8 CFR 106.3. Currently, CNMI beneficiaries may pay a biometric services fee when seeking a grant or extension of CW–1 status in the CNMI. See 76 FR 55513–55514; 8 CFR 214.2(e)(23)(viii) and (w)(16). As explained in section VIII.E., Changes to Biometric Services Fee, DHS proposes to incorporate the cost of biometric services into the underlying immigration benefit request fees. This proposed change would place the entire financial burden for CNMI petition fees on the employer, eliminating any fees paid by the beneficiary. See proposed 8 CFR 106.2, 214.2(v)(23)(viii) and (w)(16). DHS does not propose to limit the number of named beneficiaries included in a single I–129CW filing. USCIS does not have separate completion rates for CNMI petitions. Currently, USCIS adjudicators report hours for Form I– 129CW in a catch-all Form I–129 category. 9. H–1B Electronic Registration Fee In 2019, DHS established a $10 registration fee per beneficiary for H–1B petitions. See ‘‘Registration Fee Requirement for Petitioners Seeking To File H–1B Petitions on Behalf of Cap Subject Aliens,’’ 84 FR 60307 (Nov. 8, 2019). The $10 registration fee is separate from and in addition to the H– 1B petition filing fee. See 84 FR 60309. USCIS requires the registration fee regardless of whether the potential petitioner’s registration is selected. USCIS lacked sufficient data to precisely estimate the costs of the E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules registration process at the time, but implemented the $10 fee to provide an initial stream of revenue to fund part of the costs to USCIS of operating the registration program. Id. DHS stated that USCIS would review the fee in the future. Id. DHS proposes $215 based on the results of the FY 2022/2023 fee review. See proposed 8 CFR 106.2(c)(11). USCIS lacks information on the direct cost of H–1B registration, but USCIS estimated the indirect costs of the H–1B registration program using the same methods as it did to calculate other fees. The methodology for estimating the cost provides results that are similar to the USCIS Immigrant Fee, which was established as part of the FY 2010/2011 fee rule. See 75 FR 58979. However, the H–1B registration fee contains and funds fewer activities. DHS bases the proposed fee on the activity costs for the following activities: • Inform the Public • Management and Oversight As such, the proposed fee is based on the estimated cost of these two activities. See the supporting documentation included in the docket for this rulemaking for more information on USCIS fee review activities. The proposed fee does not include activity costs for paper intake because registration is only available online. It does not include the cost of any adjudication activities because the fee is only for registration, not a decision. If selected, the petitioner must file Form I–129 separately. DHS understands that an increase from $10 to $215 may appear to be exorbitant at first glance. However, the $10 fee was established simply to cover a small portion of the costs of the program rather than perpetually leaving 100 percent of those costs to be funded by the fees paid for other unrelated requests. As stated in the rule setting the fee, ‘‘DHS proposed a $10 fee to provide an initial stream of revenue to mitigate potential fiscal effects on USCIS. Following implementation of the registration fee provided for in this rule, USCIS will gather data on the costs and burdens of administering the registration process in its next biennial fee review to determine whether a fee adjustment is necessary to ensure full cost recovery.’’ 84 FR 60309. DHS sees no reasons why U.S. employers who wish to temporarily employ foreign workers in specialty occupations should not cover the expenses of the H–1B registration program, which is a prerequisite to being able to file a nonimmigrant petition for a foreign worker in the H–1B nonimmigrant VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 classification. Even with the higher registration fee requirement, the registration process is still expected to result in a net cost-savings to USCIS and petitioners due to cost savings associated with unselected petitions in DHS’ Registration Requirement for Petitioners Seeking to File H–1B Petitions on Behalf of Cap-Subject Aliens.289 L. Premium Processing—Business Days DHS proposes to define the premium processing timeframe for all immigration benefit request types designated for premium processing to only include business days.290 DHS is proposing to define business days as days that the Federal Government is open for business, which do not include weekends, federally observed holidays, or days on which Federal Government offices are closed, such as for weatherrelated or other reasons.291 The closure may be nationwide or in the region where the adjudication of the benefit for which premium processing is sought will take place. The former INS established the current premium processing timeframe interpretation in June 2001. See ‘‘Establishing Premium 289 See 84 FR 940. 8 CFR 106.4(e). DHS lengthened the timeframe for USCIS to take an adjudicative action on petitions filed with a request for premium processing from 15 calendar days to 15 business days in the 2020 fee rule. See 8 CFR 106.4 (Oct. 2, 2020). However, on March 30, 2022, USCIS published the Implementation of the Stopgap USCIS Stabilization Act rule (Premium Processing Rule), which amended USCIS premium processing regulations by updating the regulations to include the fees established by the Emergency Stopgap USCIS Stabilization Act for immigration benefit requests that were designated for premium processing on August 1, 2020, and established new fees and processing timeframes consistent with section 4102(b) of the Emergency Stopgap USCIS Stabilization Act. See 87 FR 18227. The Premium Processing Rule explained that USCIS was not calculating premium processing timeframes in business days because at that time 8 CFR 106.4 was not being administered as a result of the injunction staying the 2020 Fee Rule in ILRC and NWIRP. The Premium Processing rule explained that by removing the reference to business days in the premium processing regulations, the premium processing regulations will be clear and consistent with current practices and requirements and not be a source of confusion to the public. Id. at 18233. 291 DHS recognizes that calculating premium processing timeframes in business days is inconsistent with the definition of ‘‘day’’ in 8 CFR 1.2, which provides that when computing the period of time for taking any action [in chapter I of title 8 of the CFR] including the taking of an appeal, [it] shall include Saturdays, Sundays, and legal holidays, except that when the last day of the period computed falls on a Saturday, Sunday, or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday. However, having recognized the definition of ‘‘day’’ in 8 CFR 1.2, DHS believes for the reasons stated and explained in the preamble that it is necessary for DHS to define premium processing timelines in business days. 290 See PO 00000 Frm 00101 Fmt 4701 Sfmt 4702 501 Processing Service for EmploymentBased Petitions and Applications,’’ 66 FR 29682. The rule’s preamble stated that the District of Columbia Appropriations Act of 2001 (Pub. L. 106–553) ‘‘specified that the Service was required to process applications under the Premium Processing Service in 15 calendar days,’’ as part of a general description of the statute. 66 FR 29682. DHS has re-examined the District of Columbia Appropriations Act of 2001 and found that it did not define the timeframe by which INS was required to process applications under the Premium Processing Service and was, in fact, silent on the issue.292 Thus, DHS has determined that the June 1, 2001, interim rule stating a 15 calendar day processing timeframe was required by the District of Columbia Appropriations Act of 2001 was incorrect because there is nothing in that statute establishing a timeframe in which premium processing must occur, let alone how that timeframe is to be calculated. Without a specific timeframe or an explanation of how that timeframe is to be calculated, DHS may interpret its authority under INA sec. 286(u), 8 U.S.C. 1356(u), to define the timeframe in which premium processing must occur. Thus, DHS has reevaluated its old statutory interpretation to see if the premium processing program and premium processing timeframes can be revised to make the program more serviceable for USCIS while continuing to provide an expedited level of processing for their immigration petitions and applications.293 When USCIS is unable to complete premium processing within the required timeframe, USCIS must suspend premium processing. When USCIS suspends premium processing, it must refund the fees for the premium processing requests it cannot complete. In recent years, USCIS has suspended for certain categories of employmentbased petitions when it determines that it has inadequate resources to devote to premium processing requests, and might otherwise refund a large number of Form I–907 fees for failure to meet the required processing timeframe.294 292 See Public Law 106–553 (2000) sec. 112. also notes that section 4102(b) of the USCIS Stabilization Act provides premium processing times of 30 and 45 days, indicating that Congress considers periods that are two and three times longer than 15 days to be premium service. 294 USCIS has not suspended premium processing for any requests since the USCIS Stabilization Act became law. That law provides that DHS may suspend the availability of premium processing for designated immigration benefit requests only if circumstances prevent the completion of processing of a significant number of such requests within the 293 DHS E:\FR\FM\04JAP2.SGM Continued 04JAP2 502 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 In certain instances, USCIS has been unable to maintain existing premium processing timeframes due to the high volume of incoming petitions and a significant surge in premium processing requests.295 For example, USCIS twice suspended premium processing before cap-subject H–1B season, which is the largest premium processing workload. In one such circumstance, USCIS initially announced it expected the suspension to last up to 6 months then extended it for several more months.296 The suspension not only lasted longer than USCIS initially announced, but it also lasted well past the start date (October 1) for H–1B cap employees. As a result, this led to uncertainty for both employers and employees, because the employees were not able to timely start when the employers requested and neither party could predict when the employees would ultimately begin their employment. In addition to the harm and uncertainty that suspensions cause employers, when premium processing must be suspended, USCIS is not able to obtain the revenue from premium processing to offset its costs and for other uses. USCIS currently shifts adjudicators and other resources to address seasonal increases in filings. USCIS will also transfer files to offices with more processing capacity as needed. However, shifting adjudicators or files to focus on premium processing does not achieve the efficiency needed as higher volumes of incoming petitions or applications limit USCIS’ ability to complete processing within the required processing timeframe. USCIS also had to suspend premium processing due to the COVID–19 pandemic.297 At that time, all the required period. 8 U.S.C. 1356(u)(5)(A). While that law reiterates the standard that USCIS has generally followed in suspending premium processing, DHS does not know if that provision will reduce future suspensions by itself. 295 See USCIS, ‘‘USCIS Will Temporarily Suspend Premium Processing for All H–1B Petitions,’’ available at https://www.uscis.gov/archive/usciswill-temporarily-suspend-premium-processing-allh-1b-petitions (last updated March 3, 2017); see also ‘‘USCIS Will Temporarily Suspend Premium Processing for Fiscal Year 2019 H–1B Cap Petitions,’’ available at https://www.uscis.gov/news/ alerts/uscis-will-temporarily-suspend-premiumprocessing-fiscal-year-2019-h-1b-cap-petitions (last updated March 20, 2018). 296 See USCIS, ‘‘USCIS Resumes Premium Processing for Fiscal Year 2019 H–1B Cap Petitions,’’ available at https://www.uscis.gov/news/ alerts/uscis-resumes-premium-processing-for-fiscalyear-2019-h-1b-cap-petitions (last updated Jan. 25, 2019). 297 See USCIS, ‘‘USCIS Announces Temporary Suspension of Premium Processing for All I–129 and I–140 Petitions Due to the Coronavirus Pandemic,’’ available at https://www.uscis.gov/ news/alerts/uscis-announces-temporarysuspension-of-premium-processing-for-all-i-129- VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 petitions eligible for premium processing were filed on paper at the service centers. Service centers needed time to adapt workspace configurations and procedures to ensure physical distancing and other safety protocols for employees working on site and picking up and dropping off files. Contracted employees had to be in the building to receive the petitions, data enter them into the system, put the files together, and deliver the files to the adjudicators. The adjudicators had to come into the building to pick up and drop off the files. The requirement of physical presence in the building greatly inhibited USCIS’ ability to process petitions within the allotted timeframe. Irrespective of the COVID–19 pandemic, many of the benefit requests eligible for premium processing are still filed manually on paper, which necessarily requires USCIS employees and contractors to physically handle such benefit requests. If something should occur, such as a natural or manmade disaster, that interferes or prevents USCIS employees or contractors from being able to adjudicate benefit requests seeking premium processing, those workdays lost should not count against the premium processing timeframe. USCIS employees are limited in the hours they are available to work by collective bargaining agreements and contracted staff are limited to the hours provided by contract, and both Federal employees and contracted staff are prohibited from working outside regular business hours or while not in a pay status. If USCIS needs its employees to work overtime to process these petitions and applications within a certain timeframe, it must of course pay them the applicable overtime pay rate. Because USCIS adjudication operations are fee funded, USCIS does not always have sufficient funds to support overtime; therefore, it must calculate the premium processing timeframes based on the days in which it can actually process petitions and applications (business days). USCIS is not asserting that all adjudications will increase to the full allowance of business days, however this change provides needed flexibility for holidays, weather emergencies, and other circumstances outside the agency’s control. In addition, the USCIS Stabilization Act prohibits USCIS from making premium processing available if it adversely affects processing times for immigration benefit requests not designated for premium processing or the regular processing of immigration and-i-140-petitions-due-to (last updated Mar. 27, 2020). PO 00000 Frm 00102 Fmt 4701 Sfmt 4702 benefit requests so designated. See USCIS Stabilization Act, sec. 4102(c), Public Law 116–159 (Oct. 1, 2020). The USCIS Stabilization Act allows for expansion of premium processing to certain EB–1 and EB–2 (NIW) petitions, which are more complex adjudications typically containing voluminous evidence and generally requiring more time to adjudicate than benefit types previously afforded premium processing. See 8 U.S.C. 1356(u)(2)(B). It also allows for expansion to Forms I– 539 and I–765, which, while less complex, constitute an exceptionally large filing volume which necessitates a longer processing time. See 8 U.S.C. 1356(u)(2)(C) and (D). USCIS must have sufficient staff able to process premium processing cases during the allotted timeframe. USCIS cannot expand premium processing, which was specifically requested by many commentors in the previous fee rule, until it has sufficient staff to consistently adjudicate within the timeframes. However, it is difficult to estimate the staff needed to process petitions during a certain timeframe using calendar days. In 2018, premium processing was suspended in April, then the suspension was extended until after the Federal holidays in December and January. In the last 2 weeks of December 2018, USCIS lost 3 days of processing to Federal holidays and 4 days to weekends. USCIS cannot hire additional staff in short periods of time, nor can it reallocate staff without affecting other processing times. DHS’s proposed solution to consistently offer and expand (as Congress has authorized) premium processing services is to calculate the timeframe in business days. Calculating the premium processing timeframes based on the days in which USCIS is actually processing petitions and applications (business days) will enable USCIS to make premium processing more consistently available and expand it to the newly designated classifications and categories as intended by the USCIS Stabilization Act. This avoids USCIS having to suspend premium processing, which limits access to more applicants and petitioners and extends the pending period for adjudication. DHS has determined that it is more appropriate for the premium processing timeframes to be calculated using business days rather than calendar days and proposes to apply this interpretation to all premium processing timeframes.298 USCIS considers 298 On October 1, 2020, the USCIS Stabilization Act amended section 286(u) of the INA, 8 U.S.C. 1356(u), and did not define how to calculate the E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules calculating premium processing timeframes in business days appropriate because: (1) USCIS can only process petitions and applications on business days; (2) using calendar days results in inconsistent and varying timeframes for USCIS to process requests for premium processing based on holidays and weather emergencies; and (3) using calendars days causes particular operational challenges when trying to meet the shorter 15-day premium processing timeframe applicable to certain immigration benefits. By changing to business days instead of calendar days, USCIS avoids having to suspend premium processing more frequently which therefore alleviates the waiting time for applicants and petitioners. Separate from this rulemaking, USCIS is providing more flexibility in paying the premium processing fee. For example, USCIS piloted and expanded credit card payments for Forms I–129, I– 140, and I–907.299 USCIS will continue to evaluate options that give employers more options and flexibility when using premium processing and when filing petitions in general. khammond on DSKJM1Z7X2PROD with PROPOSALS2 M. Permitting Combined Payment of the Premium Processing Fee DHS proposes to permit the fee to request premium processing service to be paid with the same remittance as other filing fees. Proposed 8 CFR 106.4(b). DHS currently requires the fee to request premium processing service to be paid in a separate remittance from other filing fees. 8 CFR 106.4(b). DHS has found in its application of the new premium processing regulations (87 FR 18260) that mandating a separate payment in all premium processing submissions may impose unnecessary timeframe by which USCIS must process applications under the Premium Processing Service, with section 286(u) of the INA, 8 U.S.C. 1356(u), still remaining silent on the issue. 299 See USCIS, ‘‘USCIS Expands Credit Card Payment Pilot Program to California Service Center’’, available at https://www.uscis.gov/ newsroom/alerts/uscis-expands-credit-cardpayment-pilot-program-to-california-service-center (last updated Nov. 5, 2021); see also USCIS, ‘‘USCIS Expands Credit Card Payment Pilot Program to Vermont Service Center’’, available at https:// www.uscis.gov/newsroom/alerts/uscis-expandscredit-card-payment-pilot-program-to-vermontservice-center (last updated Oct 21, 2021); see also USCIS, ‘‘USCIS Expands Credit Card Payment Pilot Program to Form I–140 When Requesting Premium Processing’’, available at https://www.uscis.gov/ news/alerts/uscis-expands-credit-card-paymentpilot-program-to-form-i-140-when-requestingpremium-processing (last updated July 20, 2021); see also USCIS, ‘‘USCIS Expands Credit Card Payment Pilot Program to Texas Service Center’’, available at https://www.uscis.gov/newsroom/ alerts/uscis-expands-credit-card-payment-pilotprogram-to-texas-service-center (last updated Sept 9, 2021). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 burdens on petitioners, applicants and DHS. For example, any limitation on fee intake that must be enforced by USCIS adds a business requirement for the immigration benefit to be accepted. Each rule requires system programming and may result in unnecessary rejections. Thus, DHS proposes, instead of mandating the separate payment, to provide that USCIS may require the fee to request premium processing service to be paid in a separate remittance from other filing fees. Proposed 8 CFR 106.4(b). DHS will maintain the authority to require separate payments when combined payments need to be precluded because they cause intake and acceptance problems. USCIS may require the premium processing service fee be paid in a separate remittance from other filing fees and preclude combined payments in the applicable form instructions. Id. N. Intercountry Adoptions DHS made several changes in the 2020 fee rule related to intercountry adoptions. See 8 CFR 204.3 and 204.312 (Oct. 2, 2020). As discussed elsewhere, DHS and USCIS are enjoined from following the regulations codified by that rule and DHS is proposing this rule to replace the 2020 fee rule. Nevertheless, commenters supported the changes to the handling of Hague Adoption Convention transition cases and the adoption process improvements in that rule. See 85 FR 46850. Therefore, in the following sections of this preamble, DHS generally repeats the rationale that we provided for all of the adoption related changes from the 2019 proposed rule. See 84 FR 62313–62315. 1. Adjustment to Proposed Fees for Certain Intercountry Adoption-Specific Forms DHS proposes to limit the increase of adoption-related fees in this rule consistent with previous fee rules. See, e.g., 81 FR 73298. DHS will continue its policy of reducing fee burdens on adoptive families by covering some of the costs attributable to the adjudication of certain adoption-related petitions and applications (Forms I–600/600A/800/ 800A) through the fees collected from other immigration benefit requests. If DHS used the estimated fee-paying unit cost from the ABC model for Form I– 600A, then this benefit request would have a fee of at least $1,454.300 DHS believes that it would be contrary to public and humanitarian interests to 300 Model output from Appendix Table 4 in the FY 2022/2023 Immigration Examinations Fee Account Fee Review Supporting Documentation (supporting documentation) in the docket. PO 00000 Frm 00103 Fmt 4701 Sfmt 4702 503 impose a fee of this amount on prospective adoptive parents seeking to adopt a child from another country. Therefore, DHS proposes to apply the 18 percent weighted average increase to the current fee of $775, which represents a $145 increase to $920 for Forms I–600/ 600A/800/800A. Proposed 8 CFR 106.2(a)(29), (30), (44), and (45). The percentage increase is not specific to adoption application and petition fees. It is the same percentage that DHS uses for all USCIS fees that DHS proposes to keep below full cost. See section V.B.3. It is worth noting that the proposed fee would include the cost of biometric services under this proposal. See section VIII.E. of this preamble. As such, the $920 proposed fee is less than the current $775 plus the separate $85 fees for biometric services for two adults in a household. Two adults in a household would pay $945 with the current fee structure for intercountry adoption. Thus, the proposed fees are $25 less than the current fees for two adults in a household who file an intercountry adoption-based application or petition to adopt a single child or birth siblings. DHS greatly values its role in intercountry adoptions and places high priority on the accurate and timely processing of immigration applications and petitions that enable U.S. families to provide permanent homes for adopted children from around the world. It also recognizes that the financial costs, both foreign and domestic, involved in intercountry adoptions can have significant impacts on these families. DHS has a history of modifying policies to ease burdens associated with international adoption. Before 2007, USCIS required prospective adoptive parents who had not found a suitable child for adoption within 18 months after approval of their Application for Advance Processing of an Orphan Petition, Form I–600A, to submit a fee with their request to extend their approval. Since 2007, USCIS has permitted adoptive parents to request one extension of their Form I–600A approval without charge, including the biometric fee. See 72 FR 29864; 8 CFR 103.7(b)(1)(i)(Z) (Oct. 1, 2020). Finally, DHS does not charge an additional filing fee for an adoption petition filed on behalf of the first beneficiary child or birth siblings. See 8 CFR 103.7(b)(1)(i)(Z) and (b)(1)(i)(JJ)(1) (Oct. 1, 2020). DHS also has a history of setting adoption-related fees lower than the amount suggested by the fee-setting methodology. In the 2010 fee rule, the calculated fee for adoption petitions and applications (Forms I–600/I–600A and I–800/I–800A) was $1,455, based on E:\FR\FM\04JAP2.SGM 04JAP2 504 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules projected costs. See 75 FR 33461; 8 CFR 103.7(b)(1)(i)(Y), (Z), (II), (JJ) (Oct. 1, 2020). In the FY 2016/2017 fee review, DHS set the Form I–600 fee at $775 despite the estimated cost of $2,258. See 81 FR 73299. Shifting the adoption application and petition costs to other fees is consistent with past DHS efforts and is in the public interest to support parents of children adopted abroad. khammond on DSKJM1Z7X2PROD with PROPOSALS2 2. Clarification of Fee Exemption for Birth Siblings DHS proposes to revise and republish amendments to 8 CFR 106.2, 204.3, and 204.313 to clarify the regulations and align them with current practice that prospective adoptive parents with a valid Form I–600A or Form I–800A approval are not required to pay a fee for the first Form I–600 or Form I–800 petition. If they are approved to adopt more than one child, they are required to pay the filing fee for additional Form I–600 or Form I–800 petitions unless the beneficiaries are birth siblings. To align with current and historical practice, DHS proposes to clarify in the regulations that this exception is limited to ‘‘birth’’ siblings. This approach is consistent with the special treatment afforded in the INA to ‘‘natural siblings,’’ which allows a Form I–600 or Form I–800 petition to be filed for a child up to age 18, rather than up to age 16, only if the beneficiary is the ‘‘natural sibling’’ of another foreign-born child who has immigrated (or will immigrate) based on adoption by the same adoptive parents. INA sec. 101(b)(1)(F)(ii) and (G)(iii); 8 U.S.C. 1101(b)(1)(F)(ii) and (G)(iii). While the INA uses the term ‘‘natural sibling,’’ DHS generally uses the term ‘‘birth sibling’’ synonymously, which includes half-siblings but does not include adoptive siblings. DHS also proposes to remove feerelated language from 8 CFR 204.3(h)(3)(i)(C) and (D) because this language will be covered in 8 CFR 106.2. 3. Suitability and Eligibility Approval Validity Period DHS proposes to revise and republish the amendments to 8 CFR 204.3 relating to orphan cases under INA sec. 101(b)(1)(F), 8 U.S.C. 1101(b)(1)(F) (nonConvention cases). The proposed revised and republished revisions to the orphan regulations are necessary to eliminate disparity between the 18month approval period for the Form I– 600A, Application for Advance Processing of an Orphan Petition, the 15-month validity period of FBI fingerprint clearances, and the 15month approval period for a Form I– 800A, Application for Determination of VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Suitability to Adopt a Child from a Convention Country, and any approved extension. Currently, the approval of a Form I– 600A in an orphan case is valid for 18 months. See 8 CFR 204.3(h)(3)(i) (Oct. 1, 2020). However, standard USCIS policy has been that the FBI’s clearance of a person’s fingerprints is valid for 15 months, thereby creating inconsistency between the 15-month fingerprint clearance validity and the 18-month approval validity period for the Form I– 600A. This inconsistency was partially resolved with the ratification of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) and subsequent codification of 8 CFR 204.312(e)(1), whereby the initial approval period for a Form I–800A in a Convention case is 15 months from the date USCIS received the initial FBI response for the fingerprints of the prospective adoptive parent(s) and any adult members of the household. This 15-month period also applies to the extension of the Form I– 800A approval period for an additional 15 months from the date USCIS receives the new FBI response on the fingerprints. Creating parity in the approval periods for suitability and eligibility determinations provides additional protections for adopted children and provides consistency and alignment of the orphan and Hague regulations. Having a standardized 15month validity period will also alleviate the burden on prospective adoptive parents and adoption service providers to manage and monitor multiple expiration dates. Therefore, DHS proposes to alter the validity period for a Form I–600A approval in an orphan case to 15 months. See proposed 8 CFR 204.3(b), (d), and (h)(7) and (13). See proposed 8 CFR 204.3(h)(3).301 DHS proposes to remove fee-related language from 8 CFR 204.3(h)(3)(ii) because that language would be unnecessarily redundant with the fee language in proposed 8 CFR 106.2. 301 In addition to changing the 18-month period to 15 months, DHS is removing the internal procedure from 8 CFR 204.3(h)(3)(i) that provides where documents will be forwarded and how notification of overseas offices of the approval is handled. DHS is also correcting a reference to the number of children the prospective adoptive parents are approved for in the home study to refer to the number of children the prospective adoptive parents are approved for in the Form I–600A approval. Finally, DHS is also adding a reference to proposed 8 CFR 106.2(a)(31) in § 204.3(h)(3)(i), relating to Form I–600A extension requests. PO 00000 Frm 00104 Fmt 4701 Sfmt 4702 4. Form I–600A/I–600, Supplement 3, Request for Action on Approved Form I–600A/I–600 DHS proposes to revise and republish the regulation that creates a new form 302 to further align the processes for adoptions from countries that are not party to the Hague Adoption Convention (Hague or Convention) with the processes for adoptions from countries that are party to that Convention. The proposed form name is Form I–600A/I–600, Supplement 3, Request for Action on Approved Form I–600A/I–600. The proposed fee is $455. Proposed 8 CFR 106.2(a)(31). As discussed in the PRA section of this preamble, the draft Supplement 3 is posted in the docket of this rulemaking for the public to review and provide comments. Currently, prospective adoptive parents face different processes for requests for action on approved suitability applications in Hague cases than they do in non-Hague cases. USCIS uses Forms I–800, I–800A, and I–800A Supplement 3 for Hague cases. USCIS uses Forms I–600 and I–600A for orphan cases. A fee for Form I–600A/I– 600 Supplement 3 would further align the Form I–600A/I–600 request for action process with the existing Form I– 800A process in four key areas: 1. Suitability and eligibility extensions. 2. New approval notices. 3. Change of country; and 4. Duplicate approval notices. USCIS adjudicators must reassess whether prospective adoptive parents are still suitable and eligible to adopt if the prospective adoptive parents’ circumstances have changed after the initial USCIS suitability determination. The proposed fee would help recover some of the cost for this work. Requirements related to a prospective adoptive parent’s change in marital status for the orphan process are similar to the Hague process, but not identical. This is because the orphan process provides an option for combination filing, unlike the Hague process. In the orphan process, a prospective adoptive parent can file their Form I–600 petition on behalf of a specific child together with the supporting documents for Form I–600A, Application for Advance Processing of an Orphan Petition, to request that USCIS decide their suitability and eligibility to adopt at the same time as the child’s eligibility. This is referred to as combination filing. For Hague cases, prospective adoptive parents cannot use Form I–800 Supplement 3 if their marital status 302 As E:\FR\FM\04JAP2.SGM defined in 8 CFR 1.2. 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules changes. If the prospective adoptive parent’s marital status changes before they complete the intercountry adoption process, their Form I–800A approval is automatically revoked. This is because a change in marital status considerably changes the facts supporting a prior suitability approval and who the adoptive parents will be. The prospective adoptive parent must submit a new Form I–800A with an updated home study. If the prospective adoptive parent had already filed a Form I–800 based on the approval of the prior Form I–800A, they must also file a new Form I–800. The prospective adoptive parent must pay a new application fee unless their Form I– 800A is still pending. See 8 CFR 204.312(e)(2). Similarly, a prospective adoptive parent will not be able to use Form I– 600A/I–600 Supplement 3 for the orphan process if their marital status changes. If the prospective adoptive parent’s marital status changes before they complete the intercountry adoption process, they must submit a new a Form I–600A or Form I–600 combination filing (referred to in this preamble as a ‘‘suitability application’’) with an updated home study. If the prospective adoptive parent already filed a Form I– 600 based on the approval of the prior Form I–600A, they must also file a new Form I–600. They must pay a new application or petition fee unless their suitability application is still pending. This is consistent with longstanding practices, as reflected in prior versions 505 of the Form I–600A and Form I–600 instructions, which has required that prospective adoptive parents file a new suitability application with an updated home study if their marital status changes, rather than relying on the previously filed suitability application, regardless of whether the suitability application is pending or approved. With the addition in this proposed rule of the Supplement 3 for the orphan process, DHS proposes to codify this longstanding practice at 8 CFR 204.3(h)(14), consistent with the Hague process at 8 CFR 204.312(e)(2). Table 20 and the following sections summarize the current process and the proposed changes. BILLING CODE 9111–97–P VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.058</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Table 20: Summary of Current and Proposed Adoption Processes Related to Proposed Form I-600A/I-600 Supplement 3 Current Process Proposed Process Type of Change Suitability & Eligibility The Form I-600A approval notice DHS proposes to require Extensions reflects a validity period for the prospective adoptive parents to prospective adoptive parents' submit Form I-600A/I-600, suitability and eligibility Supplement 3 to request the determination. Currently, initial no-fee extension. Form prospective adoptive parents may I-600A/I-600 Supplement 3 would allow prospective request one initial extension of their Form I-600A approval adoptive parents to request without fee by submitting a second or subsequent request in writing. Prospective extensions with the proposed adoptive parents are not able to fee. An applicant must file a request a second or subsequent Supplement 3 to seek an extension before their Form Iextension of their Form I-600A approval. An applicant may not 600A suitability approval request an extension more than 90 expires. However, a days before their Form I-600A Supplement 3 seeking an suitability approval expires but extension that is filed more must do so on or before its than 90 days before the Form expiration date. I-600A suitability approval expires mav be denied. 506 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 20: Summary of Current and Proposed Adoption Processes Related to Proposed Form I-600A/I-600 Supplement 3 Type of Change Current Process Proposed Process New Approval Notices Currently, prospective adoptive DHS proposes to require parents can request a new prospective adoptive parents to approval notice based on a submit Form l-600A/1-600, significant change and updated Supplement 3 to request a new home study with no fee. New approval notice. The approvals require adjudicators to prospective adoptive parent reassess whether prospective must pay the fee unless they adoptive parents remain suitable are also filing a first-time and eligible to adopt after the request for either an extension significant change in or change of country. Second circumstances. (For example, or subsequent requests would significant decreases in finances, require the proposed fee. change of residence, change in household composition, etc.) Currently, prospective adoptive DHS proposes to require Change of Country parents may change their proposed prospective adoptive parents to country of adoption once without submit Form l-600A/1-600, fee. For example, if they are Supplement 3 to request the matched with an eligible orphan in initial no-fee change of a country other than the country proposed country of initially identified on their Form I- adoption. 303 Form l-600A/1600 Supplement 3 would 600A. For subsequent country changes, prospective adoptive allow prospective adoptive parents file Form 1-824, parents to request a second or Application for Action on an subsequent change in the Approved Application or Petition, proposed country of adoption with the proposed fee. with fee. Duplicate Approval For duplicate approval notices, DHS proposes to require Notices prospective adoptive parents file prospective adoptive parents to Form 1-824, Application for submit Form l-600A/1-600, Action on an Approved Supplement 3, with the Application or Petition, with fee. proposed fee, to request a duplicate approval notice. khammond on DSKJM1Z7X2PROD with PROPOSALS2 a. Suitability and Eligibility Extensions Currently, prospective adoptive parents pursuing an intercountry adoption from non-Hague countries may request a no-fee initial extension of their Form I–600A approval.304 Requests are submitted in writing and second or subsequent requests to extend their 303 See section VIII.N.4.e for limitations in Hague Adoption Convention transition cases and countries. 304 The Form I–600A approval notice reflects the validity period of the prospective adoptive parents’ suitability and eligibility determination. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 approval are not allowed. See 8 CFR 103.7(b)(1)(i)(Z)(3) (2020) (Oct. 1, 2020). DHS proposes that prospective adoptive parents be allowed to request more than one extension of their Form I-600A approval, if necessary, by filing the proposed Form I-600A/I-600 Supplement 3. The first request would be free under this proposal. Second or subsequent requests would require the proposed fee of $455. See proposed 8 CFR 106.2(a)(31). Currently, if an applicant needs to extend their Form I–600A approval, they may file a written request for an extension no more than 90 days before PO 00000 Frm 00106 Fmt 4701 Sfmt 4702 their Form I–600A suitability approval expires, but on or before its expiration date. DHS now proposes that an applicant must file a Supplement 3 to seek an extension before their Form I– 600A suitability approval expires. A Supplement 3 seeking an extension cannot be filed more than 90 days before the Form I–600A suitability approval expires and must be filed before the approval expires if they need to extend their validity period. A Supplement 3 may be denied if filed sooner.305 This 305 This is current practice that DHS is codifying with the creation of Supplement 3 and a fee. See E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.059</GPH> BILLING CODE 9111–97–C Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules codifies the administrative efficiencies created by ensuring applicants timely file their extensions and mirrors the existing time frames for requesting an extension. In addition, this further aligns the processes for requesting extensions for adoptions from countries that are not party to the Hague Adoption Convention (Hague) with the processes for countries that are a party to that Convention. See proposed 8 CFR 204.3(h)(3)(ii). DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1, 2020). This regulation that provides for DHS to extend suitability approvals without the prospective adoptive parents requesting one in certain scenarios would no longer be necessary because applicants would have a form (Supplement 3) they can file to request unlimited extension requests for non-Hague cases. Currently, DHS does not have a form for applicants to request extensions for non-Hague cases, and only allows one written extension request. In association with this rule, DHS proposes to create a form that prospective adoptive parents can use to file unlimited extension requests for non-Hague cases. In addition, this proposed change also aligns the nonHague adoptions regulations with the Hague Adoption Convention regulations, which do not contain a parallel provision that provides DHS authority to extend suitability approvals in the event of such emergency because prospective adoptive parents can file a form to request an extension and can do so an unlimited number of times. Finally, DHS has an obligation to ensure applicants remain suitable for intercountry adoption and must update our suitability determination before extending approvals. For this reason, DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1, 2020).306 khammond on DSKJM1Z7X2PROD with PROPOSALS2 b. New Approval Notices Currently, prospective adoptive parents using the non-Hague process may request a new approval notice based on a significant change in circumstances at no cost. See 8 CFR 103.7(b)(1)(i)(Z) (Oct. 1, 2020). DHS proposes that prospective adoptive parents must file the proposed Form I– USCIS Policy Manual Volume 5, Adoptions, Part B, Adoptive Parent Suitability Determinations Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS–PM B.5] available at https://www.uscis.gov/policy-manual/volume-5part-b-chapter-5. 306 This provision was changed by the 2020 fee rule, to remove language specific to SARS, and to replace with more general language about a public health or other emergency. 85 FR 46921; 8 CFR 204.3(h)(3)(ii) (Oct. 2, 2020). DHS now proposes to remove that provision altogether for the reasons stated here. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 600A/I–600 Supplement 3, and an updated home study, to notify USCIS of a significant change and request a new approval notice. See proposed 8 CFR 106.2(a)(31). The prospective adoptive parent must pay the proposed fee of $455 unless they are also filing either a first-time request for an extension or first-time change of country on the same Supplement 3. c. Change of Country Currently, prospective adoptive parents may change the proposed country of adoption once without fee. They may make subsequent country changes by filing Form I–824, Application for Action on an Approved Application or Petition, with fee. See 8 CFR 103.7(b)(1)(i)(OO) (Oct. 1, 2020). DHS proposes that prospective adoptive parents be allowed to change the proposed country of adoption by filing the proposed Form I–600A/I–600 Supplement 3. The first request to change countries would remain free. Second or subsequent requests would require the proposed fee of $455. Id. d. Duplicate Approval Notices Currently, prospective adoptive parents may request a duplicate approval notice by filing Form I–824, Application for Action on an Approved Application or Petition, with its $465 fee. DHS proposes that prospective adoptive parents make duplicate approval notice requests by filing the proposed Form I–600A/I–600 Supplement 3, with the proposed fee of $455. See proposed 8 CFR 106.2(a)(31). e. Hague Adoption Convention Transition Cases DHS proposes to clarify the processes for requesting an extension of the Form I–600A approval and other actions on an approved Form I–600A or Form I– 600 as they pertain to adoptions from countries that newly become a party to the Hague Adoption Convention. When the Hague Adoption Convention enters into force for a country, cases that meet certain criteria are generally permitted by the new Convention country to proceed as ‘‘transition cases’’ under the non-Hague Adoption Convention process (Form I–600A and Form I–600 process). Provided that the new Convention country agrees with the transition criteria, USCIS will generally consider a case to be a transition case if, before the date the Convention entered into force for the country, the prospective adoptive parents: (1) filed a Form I–600A that designated the transition country as the intended country of adoption or did not designate a specific country and filed the Form I– PO 00000 Frm 00107 Fmt 4701 Sfmt 4702 507 600 while the Form I–600A approval was still valid; (2) filed a Form I–600 on behalf of a beneficiary from the transition country; or (3) completed the adoption of a child from the transition country. If the case does not qualify as a transition case, the prospective adoptive parents will generally need to follow the Hague Adoption Convention process with the filing of Form I–800A and Form I–800. With the addition of the new Form I–600A/I–600 Supplement 3, DHS proposes to codify certain limitations on when the Supplement 3 can be used in the context of transition cases. i. Suitability and Eligibility Extensions If a case qualifies as a transition case based on the filing of Form I–600A before the entry into force date, to continue as a transition case, the prospective adoptive parents must file the Form I–600 petition while the Form I–600A approval remains valid. Currently, prospective adoptive parents are permitted to request a one-time, nofee extension of their Form I–600A approval to remain a transition case. As discussed in section a.) above, DHS proposes that prospective adoptive parents may request more than one extension of their Form I–600A approval outside of the transition context. DHS proposes that prospective adoptive parents may only be permitted to request a one-time extension of their Form I–600A approval as a qualified transition case. See proposed 8 CFR 106.2(a)(31). Generally, transition countries have requested that DHS limit the ability of transition cases to continue indefinitely to limit the confusion that having two simultaneously running processes causes to its administrative bodies and judicial systems. This will provide prospective adoptive parents who have taken certain steps to begin the intercountry adoption process with a country before the Convention entered into force additional time to complete the adoption process under the nonHague process, but reasonably limits the ability to indefinitely extend the validity period of the Form I–600A approval and the processing of transition cases under the non-Hague process. ii. Change of Country The transition criteria were generally designed to permit prospective adoptive parents who had taken certain steps to begin the intercountry adoption process with a country before the Convention entered into force to be able to continue under the non-Hague process, rather than requiring them to begin again E:\FR\FM\04JAP2.SGM 04JAP2 508 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules under the Hague process, which has different processing requirements. If the prospective adoptive parents already designated a country of intended adoption other than the transition country on their Form I–600A or previously changed countries to a nontransition country, they generally would not fall into the category of families the transition criteria were intended to reach because the designation is an indication that they have begun the intercountry adoption process with the designated country and not with the transition country. Therefore, in the transition context, prospective adoptive parents who designated a non-transition country on their Form I–600A or previously changed countries to a nontransition country generally have not been permitted to change their Form I– 600A approval to a transition country for purposes of being considered a transition case. DHS proposes to codify this limitation in this rule. See proposed 8 CFR 106.2(a)(31). khammond on DSKJM1Z7X2PROD with PROPOSALS2 iii. Request To Increase the Number of Children Approved To Adopt Outside of the transition context, prospective adoptive parents are generally permitted to request an updated Form I–600A approval notice to increase the number of children they are approved to adopt. In the transition context, however, prospective adoptive parents with transition cases generally have not been permitted to request an increase in the number of children they are approved to adopt from a transition country.307 However, unless prohibited by the new Convention country, DHS will permit prospective adoptive parents to request an updated Form I– 600A approval notice to increase the number of children they are approved to adopt as a transition case only in order to pursue the adoption of a birth sibling, provided the birth sibling(s) is (are) identified and the Form I–600 petition is filed before the Form I–600A approval expires. See proposed 8 CFR 106.2(a)(31). This approach is consistent with the special treatment afforded in the INA to ‘‘natural siblings,’’ which allows a Form I–600 or Form I–800 petition to be filed for a child up to age 18, rather than age 16, only if the beneficiary is the ‘‘natural sibling’’ of another foreign-born child who has immigrated (or will immigrate) based on adoption by the same adoptive parents. INA sec. 101(b)(1)(F)(ii) and (G)(iii); 8 U.S.C. 1101(b)(1)(F)(ii) and (G)(iii). 307 See USCIS, ‘‘Transition Cases’’, available at https://www.uscis.gov/adoption/immigrationthrough-adoption/transition-cases (last viewed Jun. 21, 2022). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 While the INA uses the term ‘‘natural sibling,’’ DHS generally uses the term ‘‘birth siblings’’ synonymously, which includes half-siblings but does not include adoptive siblings. 5. Form I–800A, Supplement 3, Request for Action on Approved Form I–800A DHS also proposes a fee of $455 at 8 CFR 106.2 and revises and republishes a clarification to 8 CFR 204.312 to align with the current process for adjudicating Form I–800A Supplement 3. Currently, prospective adoptive parents may request a first extension of the Form I–800A approval, and a firsttime change in the proposed country of adoption, by filing Form I–800A Supplement 3 without a fee. Second or subsequent requests for an extension, change of country, or duplicate approval notice can currently be made by filing Form I–800A Supplement 3 with a fee. Additionally, prospective adoptive parents can currently request a new approval notice based on a significant change and updated home study by filing Form I–800A Supplement 3. A request for a new approval notice must be submitted with a fee unless the prospective adoptive parents are also filing a first-time request for either an extension or change of country on the same Supplement 3. When DHS implemented the Hague Adoption Convention, as a matter of operational efficiency USCIS decided to accept Form I–800A Supplement 3 extension requests regardless of whether the Form I–800 petition was already filed, rather than requiring prospective adoptive parents to file a new Form I–800A to begin the process anew. That procedure generally shortens the subsequent suitability and eligibility adjudication process for prospective adoptive parents seeking an extension of their Form I– 800A approval, as Supplement 3 adjudications are generally prioritized over new Form I–800A filings, allowing for a new decision on the prospective adoptive parents’ suitability and eligibility to occur more quickly. Therefore, DHS proposes to republish 8 CFR 204.312(e)(3)(i) to permit the filing of Form I–800A Supplement 3 regardless of whether Form I–800 has been filed. DHS proposes to revise 8 CFR 204.312(e)(3)(ii) to clarify the evidentiary requirements for updates due to significant changes. The Supplement 3 can be filed for an extension request, a change of country, a duplicate approval notice, or an update due to a significant change. The evidentiary requirements are the same regardless of which type of request the applicant makes. However, the current PO 00000 Frm 00108 Fmt 4701 Sfmt 4702 regulation only describes the evidence required for a Supplement 3 for an extension request or a change of country. The current regulations do not include updates when listing evidentiary requirements for Supplement 3. This proposed clarification mirrors current practices and form instructions. See proposed 8 CFR 204.312(e)(3)(ii). DHS proposes to remove the fee language from 8 CFR 204.312(e)(3)(i), including amending paragraph (e)(3)(i)(A) and striking paragraphs (e)(3)(i)(C) and (D), because this language is unnecessarily redundant with the fees in 8 CFR 106.2. O. Immigrant Investors 1. Immediate Effects of the EB–5 Reform and Integrity Act of 2022 DHS proposes changes to various fees for regional centers and related immigration benefit requests related to Employment-Based Immigrant Visa, Fifth Preference (EB–5). As explained in section III.F. above, on March 15, 2022, the President signed the EB–5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022 (Public Law 117–103). The EB–5 Reform and Integrity Act of 2022 repealed the prior authorizing statute for the EB–5 ‘‘regional center program’’ and codified a substantially reformed regional center program in the INA, effective 60 days after enactment on May 14, 2022. The EB–5 Reform and Integrity Act of 2022 has no immediate impact on the staffing levels of the USCIS Immigrant Investor Program Office. Nevertheless, and despite the changes in the law and program, DHS has proposed fees in this rule based on the currently projected staffing needs to meet the adjudicative and administrative burden of the Immigrant Investor Program Office pending the fee study required by section 106(a) of the EB–5 Reform and Integrity Act of 2022. 2. Background of the EB–5 Program Congress created the EB–5 program in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors. The EB–5 regional center program was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Public Law 102–395, sec. 610, 106 Stat. 1828 (Oct. 6, 1992). As amended by the EB–5 Reform and Integrity Act of 2022, the EB–5 program makes approximately 10,000 visas available annually to foreign nationals (and their dependents) who invest at least $1,050,000 or a E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 discounted amount of $800,000 if the investment is in a targeted employment area (TEA) (which includes certain rural areas and areas of high unemployment) or infrastructure project in a U.S. business that will create at least 10 fulltime jobs in the United States for qualifying employees. See INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8 U.S.C. 11538 U.S.C. 1153. Investors may satisfy up to 90 percent of the job creation requirements with jobs that are estimated to be created indirectly through qualifying investments within a commercial enterprise associated with a regional center approved by USCIS for participation in the regional center program. INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5). In FY 2013, USCIS created the Immigration Investor Program Office (IPO) in Washington, DC, to handle EB– 5 matters, hiring staff with expertise in economics, law, business, finance, securities, and banking to enhance consistency, timeliness, and integrity within the program. USCIS is committed to strengthening the integrity and improving the overall administration of the EB–5 program. There is perennial and increasing media attention around the EB–5 Program, largely created around the exploitation of the program by abusive actors.308 Since the FY 2016/2017 fee rule, IPO added staff positions to focus both on managing the program and identifying fraud, national security, public safety, and non-compliance concerns within the program. For example, IPO hired auditors to complete regional center 308 Michelle Hackman & Konrad Putzier, ‘‘Cashfor-Visa Program Looks to Be in Jeopardy,’’ The Wall Street Journal (June 15, 2021), available at https://www.wsj.com/articles/cash-for-visaprogram-looks-to-be-in-jeopardy-11623758401; see also U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, ‘‘Hearing on ‘‘Citizenship for Sale: Oversight of the EB–5 Investor Visa Program’’ before the Senate Committee on the Judiciary on June 19, 2018’’ (last updated June 19, 2018), available at https://www.uscis.gov/tools/resourcesfor-congress/testimonies/hearing-on-citizenship-forsale-oversight-of-the-eb-5-investor-visa-programbefore-the-senate; U.S. Dep’t of Justice, Office of Public Affairs, ‘‘Chinese National Pleads Guilty to Illegal Exports to Northwest Polytechnical University’’ (Apr. 28, 2021), available at https:// www.justice.gov/opa/pr/chinese-national-pleadsguilty-illegal-exports-northwestern-polytechnicaluniversity; U.S. Dep’t of Justice, U.S. Attorney’s Office, Eastern District of Louisiana, ‘‘Ex-White House Military Aide and Maryland Businessman Found Guilty for Operating Fraudulent EB–5 Visa Scheme (Sept. 6, 2019), available at https:// www.justice.gov/usao-edla/pr/ex-white-housemilitary-aide-and-maryland-businessman-foundguilty-operating-fraudulent; U.S. Dep’t of Justice, U.S. Attorney’s Office, West District of Wisconsin, ‘‘Developer Sentenced to 4 Years in Prison for Defrauding Investors seeking Permanent Residency under Federal Immigration Program (Aug. 4, 2017), available at https://www.justice.gov/usao-wdwa/pr/ developer-sentenced-4-years-prison-defraudinginvestors-seeking-permanent-residency. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 compliance reviews associated with the review of the annual certification filings. See INA section 203(b)(5)(G), 8 U.S.C. 1153(b)(5)(G). On March 20, 2017, USCIS instituted EB–5 regional center compliance reviews to enhance the EB–5 program integrity and verify information in regional center applications and annual certifications. USCIS designed this program to verify the information provided by designated regional centers and verify compliance with applicable laws and authorities to ensure continued eligibility for the regional center designation. These compliance reviews are full-file reviews and include contact via written correspondence, telephone, interviews, and onsite assessments conducted by IPO auditors. 3. Proposed EB–5 Program Fees The proposed fee for Forms I–526, Immigrant Petition by Alien Entrepreneur, and Form I–526E, Immigrant Petition by Regional Center Investor, is $11,160, a $7,485 or 204 percent increase from the current $3,675 fee. See 8 CFR 103.7(b)(1)(i)(W) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(24). The proposed fee for Form I–829, Petition by Investor to Remove Conditions on Permanent Resident Status, is $9,525, a $5,775 or 154 percent increase from the current $3,750 fee. See 8 CFR 103.7(b)(1)(i)(PP) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(51). The proposed fee for Form I–956, Application for Regional Center Designation, is $47,695, a $29,900 or 168-percent increase from the $17,795 fee for Form I–924, Application for Regional Center Designation under the Immigrant Investor Program. See 8 CFR 103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(64). DHS also proposes a $47,695 fee for Form I–956F, Application for Approval of Investment in a Commercial Enterprise, because the information it collects and the benefit that results was previously an optional submission that was adjudicated on Form I–924, when included. Section 103(b)(1)(F) of the EB–5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117–103) now requires a regional center, once designated with an approved Form I–956, to submit an application for approval of an investment in a commercial enterprise (Form I–956F). The proposed fee for Form I–956G, Regional Center Annual Statement, is $4,470, a $1,435 or 47 percent increase from the $3,035 fee for Form I–924A, Annual Certification of Regional Center. See 8 CFR 103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(66). The EB–5 PO 00000 Frm 00109 Fmt 4701 Sfmt 4702 509 program encompasses Forms I–526, I– 526E, I–829, I–956, I–965F, and I– 956G.309 In the FY 2016/2017 fee rule, USCIS planned for 204 positions in IPO. In the FY 2022/2023 fee review, USCIS estimates an annual average requirement of 245 positions in IPO. As discussed earlier, projected volumes and completion rates are two of the main drivers in the fee review.310 Staffing requirements and costs change as volume or completion rate estimates change. Generally, EB–5 volume estimates decreased since the FY 2016/ 2017 fee rule while completion rate estimates increased.311 For example, the FY 2022/2023 workload volume estimate for Forms I–526 and I–526E decreased by 10,773 or ¥73 percent compared to Form I–526 in FY 2016/ 2017. Estimated workload for Form I– 924 decreased by 338 or ¥85 percent. Overall, EB–5 actual receipts declined consistently year-over-year from FY 2016 to FY 2020. See Table 21, EB–5 Receipts from FY 2016 to FY 2020. However, completion rates increased. For example, the estimated completion rate for Form I–526 was 6.5 hours in the FY 2016/2017 fee rule. See 81 FR 26925. In the FY 2022/2023 fee review, USCIS estimates that the completion rate for Forms I–526 and I–526E is 20.69 hours, a 14.19 hour or 218 percent increase. The estimated completion rate for Form I–924 was 40 hours in the current fee structure. Id. In the FY 2022/2023 fee review, USCIS is using the methodology for Forms I–924 and I–924A and applying it to Forms I–956 and I–956G respectively. USCIS estimates that the completion rate for Form I–956 (formerly Form I–924) is 108.50 hours, a 68.50 hour or 171 percent increase. The work associated with Form I–956 adjudications includes reaffirmations and terminations; therefore, the time requirements associated with these subsequent actions is factored into the overall completion rate for Form I–956. The number of approved regional centers decreased from 2016 to 2020 by over 200, significantly increasing the number of hours spent on the terminations of those regional centers. Increased work associated with terminations contributed to the overall increase in the completion rates. 309 DHS has also created Forms I–956H, Bona Fides of Persons Involved with Regional Center Program, and I–956K Registration for Direct and Third-Party Promoters, for the new EB–5 program. DHS proposes no fee for those forms in this rule. 310 See section V.B, Methodology, earlier in this preamble for workload volumes and completion rates in the FY 2022/2023 fee review. 311 Id. E:\FR\FM\04JAP2.SGM 04JAP2 510 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules IPO staffing did not decrease from the levels estimated in the FY 2016/2017 fee rule despite lower workload volumes because the amount of work required per form increased (in other words, completion rates increased) and USCIS increased the number of other positions to strengthen the program integrity, resulting in increased staffing overall. In some cases, there was adjudicative work that was required even if there was no petition and associated filing fee filed. In addition to reviewing Form I–956G (formerly Form I–924A), USCIS also incurs costs associated with regional centers that fail to file Form I–956G. USCIS will sanction or terminate the designation of a regional center in the program if a regional center fails to submit information annually. See INA section 203(b)(5)(G), 8 U.S.C. 1153(b)(5)(G). Therefore, USCIS must take adjudicative action on regional centers that fail to file this form, and there is a cost involved even if no fee is filed to cover the cost. The reduced EB–5 workload volume contributes to significantly higher fee- paying unit costs in the ABC model because there are fewer paying customers from whom USCIS recovers the cost of processing the EB–5 workloads. As discussed in earlier in this preamble, DHS bases most proposed fees on fee-paying unit costs from the ABC model. See section V.B.3., Assessing Proposed fees. In a separate rulemaking, DHS may reevaluate EB–5 proposed fees to meet the timely processing goals of Public Law 117–103. See Public Law 117–103 at div. BB, sec. 106. Table 21: EB-5 Receipts from FY 2016 to FY 2020 Form FY 2016 FY 2017 FY 2018 FY 2019 FY 2020 l-526/1-526E 14,147 12,165 6,424 4,194 4,378 1-829 3,474 2,625 3,283 3,756 3,096 436 280 122 79 34 1-956 (former 1-924) 785 842 787 808 702 l-956G (former l-924A) EB-5 Total 18,842 15,912 10,616 8,837 8,210 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 DHS may reevaluate EB–5 proposed fees to meet the additional fee guidelines of EB–5 Reform and Integrity Act of 2022 sec. 106(c). Under the ability-to-pay principle, those who are more capable of bearing the burden of fees should pay more for a service than those with less ability to pay. The requirements of immigrant investor program indicate that immigrant investors and regional centers have the ability-to-pay more than most USCIS customers. In addition, compared to the amount of capital required and the required investment levels for an immigrant investor, the amount of the USCIS fees are an insignificant amount. Thus, DHS proposes that the fee amounts indicated by the ABC full cost recovery model for the four immigrant investor forms are not capped or decreased. DHS believes PO 00000 Frm 00110 Fmt 4701 Sfmt 4702 that immigrant investors and regional centers are able to pay the fees and the requirements for financial wherewithal in the program are inconsistent with shifting its costs to other requests and requiring others to subsidize its share of the costs of USCIS. While the proposed EB–5 fees are some of the highest on the fee schedule, the revenue from them is still a small part of the total revenue forecast because the volumes are low. See Table 22. The EB–5 average annual revenue forecast is approximately $80.7 million for the FY 2022/2023 period. As such, the EB–5 revenue forecast is only approximately 2 percent of the total average annual FY 2022/2023 revenue forecast with the proposed fees. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.061</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 The proposed fees represent consistent application of the methodology discussed earlier in this preamble. In each case, the EB–5 proposed fees are based on the ABC model outputs. As explained earlier in the preamble, the fees for benefit requests with higher fee-paying volume or model outputs, such as the EB–5 forms, are set higher than the model outputs via the process called cost reallocation. See section V.B.3. Consistent with the practice and the treatment of similar forms in this proposed rule, the proposed fees for the EB–5 forms exceed the estimated full cost of adjudication because, under the model, the fees include amounts needed to recover the costs associated with processing other workloads where fees are insufficient to recover full cost. Id. 511 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 22: FY 2022/2023 Average Annual EB-5 Revenue Forecast with Proposed Fees I-526/I-526E Immigrant Petition by Standalone/Regional Center Investor 1-829 Petition by Investor to Remove Conditions on Permanent Resident Status 1-956, Application for Regional Center Designation I-956G, Regional Center Annual Statement EB-5 Subtotal Asylum Program Fee All other IEF A non-premium revenue Grand Total P. Genealogy and Records khammond on DSKJM1Z7X2PROD with PROPOSALS2 1. Genealogy Search and Records Requests DHS revised the regulations governing genealogical research requests in the 2020 fee rule. See 85 FR 46915. The changes were intended to allow USCIS to send pre-existing digital records as part of a response to requestors who have filed Form G–1041, Genealogy Index Search Request, and otherwise help USCIS improve genealogy processes. DHS also proposed a fee for a Genealogy Index Search Request, Form G–1041, of $240, and for a Genealogy Records Request, Form G– 1041A, of $385. 84 FR 62362. Numerous commenters generally opposed increasing fees for genealogy search and records requests for various reasons. 85 FR 46834. For the 2020 final rule, USCIS refined the methodology used to estimate genealogy program costs and DHS established a fee for Form G–1041 when filed online as $160 and $170 when filed on paper. DHS established a fee for Form G–1041A when filed online as $255 and $265 when filed by paper. These fees were enjoined and not implemented. The FY 2022/2023 IEFA fee review has determined that USCIS needs additional funds for its Genealogy Search and Records Requests program. Therefore, DHS again proposes changes to the genealogy search and request program. These proposals will allow USCIS to send pre-existing digital records as part of a response to requestors who have filed Form G–1041, Genealogy Index Search Request, recover the costs of the genealogy program, and may otherwise help USCIS improve genealogy processes. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Congress provided specific authority for establishing USCIS genealogy program fees. See INA sec. 286(t), 8 U.S.C. 1356(t). The statute requires that genealogy program fees be deposited into the IEFA and provides that the fees for such research and information services may be set at a level that will ensure the recovery of the full costs of providing all such services. Id. USCIS does not receive appropriations for genealogy workloads, and genealogy revenue does not augment Government tax revenue. USCIS only receives appropriations for E-Verify, the Citizenship and Integration Grant Program, and other specific purposes, as explained in section III.B. of this preamble. The USCIS genealogy program processes requests for historical records of deceased individuals. See Establishment of a Genealogy Program, 73 FR 28026 (May 15, 2008) (final rule). Before creating a genealogy program, USCIS processed the requests as FOIA request workload, which resulted in delays. See Establishment of a Genealogy Program, 71 FR 20357 (Apr. 20, 2006) (proposed rule). Requestors use the USCIS website 312 or Form G– 1041, Genealogy Index Search Request, to request an index search of USCIS historical records. See 8 CFR 103.7(b)(1)(i)(E) (Oct. 1, 2020). USCIS informs the requestor whether any records are available by mailing a response letter. Requestors use the Form G–1041A, Genealogy Records Request, to obtain copies of USCIS historical records, if they exist. See 8 CFR 103.7(b)(1)(i)(F) (Oct. 1, 2020). In the FY 2016/2017 fee rule, USCIS adopted the first change to the 312 USCIS, ‘‘Genealogy,’’ available at https:// www.uscis.gov/records/genealogy. PO 00000 Frm 00111 Fmt 4701 Sfmt 4702 Revenue with Proposed Fees (in Millions) $43.52 $30.96 $2.96 $3.25 $80.69 $425.18 $4,657.85 $5,163.72 genealogy search and records requests fees since they had been established. See 81 FR 73304. DHS set both genealogy search and records requests fees at $65. Id. At the time, genealogy fees were insufficient to cover the full costs of the genealogy program. DHS increased the fee to meet the estimated cost of the program and permit USCIS to respond to requests for such historical records and materials. After more than ten years of operating the genealogy program, DHS proposes to make several changes to the process. Ultimately, DHS expects these changes may allow USCIS to provide genealogy search results and historic records more quickly when pre-existing digital records exist. First, DHS proposes to revise genealogy regulations to encourage requestors to submit the electronic versions of Form G–1041, Genealogy Index Search Request, and Form G– 1041A, Genealogy Records Request, through the online portal at https:// www.uscis.gov/records/genealogy. See proposed 8 CFR 103.40(b). Electronic versions of the requests reduce the administrative burden on USCIS by eliminating the need to manually enter requestor data into its systems. Requestors that cannot submit the forms electronically may still submit paper copies of both forms with the required filing fees. Second, DHS proposes to change the search request process so that USCIS may provide requestors with preexisting digital records, if they exist, in response to a Form G–1041, Genealogy Index Search Request. When requestors submit Form G–1041, Genealogy Index Search Request, on paper or electronically, USCIS searches for available records. If no record is found, E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.062</GPH> Immigration Benefit Request 512 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 then USCIS notifies the requestor by mail or email. If USCIS identifies available records, then USCIS provides details on the available records, but does not provide the copies of the actual records. Under current regulations, a requestor must file Form G–1041A, Genealogy Records Request, with a fee for each file requested, before USCIS provides any records that it found as a result of the search request. DHS proposes to provide the requestor with those pre-existing digital records, if they exist, via email in response to the initial search request. See proposed 8 CFR 103.40(f). If only paper copies of the records exist, or if the requestor wants a physical copy of the digitized record, then the requestor must follow the current process and file Form G–1041A. Consistent with current practices, requestors must still pay the Form G– 1041A request fee to request a paper record. In short, the proposal may allow some customers to file a single search request with a single fee and still receive the genealogy information that they requested. USCIS forecasts that records requests may be approximately 30 percent of index search requests. See section V.B.1. of this preamble for immigration benefit request volumes. Meaning, for approximately 70 percent of index searches, USCIS may provide electronic copies of digital records, USCIS may not identify any records, or customers may not follow-up with a records request for hardcopies. Lastly, DHS proposes to change the genealogy fees to reflect these operational changes and recover the full cost of providing genealogical services. See 8 CFR 103.7(b)(1)(i)(E) and (F) (Oct. 1, 2020); proposed 8 CFR 106.2(c)(1) and (2). USCIS estimated the workload volume based on these proposed changes and historic information. USCIS must estimate the costs of the genealogy program because it does not have a discrete genealogy program operating budget. Maintaining a separate genealogy program budget would be administratively burdensome because it is such a small portion of VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 USCIS staffing, as explained later in this section. The proposed fees are based on results from the same ABC model used to calculate other immigration benefit request fees proposed in this NPRM. However, the proposed increase reflects changes in USCIS’ methodology for estimating the costs of the genealogy program to improve the accuracy of its estimates. In the FY 2016/2017 fee rule, DHS estimated the costs of the genealogy program indirectly using projected volumes and other information. See 81 FR 26919. It did not separate genealogy from the other costs related to the division that handles genealogy, FOIA, and similar USCIS workloads. Id. This methodology underestimated the total cost to USCIS of processing genealogy requests by not fully recognizing costs associated with the staff required to process genealogical requests. Therefore, other fees have been funding a portion of the costs of the genealogy program, and DHS proposes to correct that. In the 2020 fee rule, USCIS created a new activity for this workload, called Research Genealogy, in the ABC model.313 Previous fee reviews captured this work as part of the Records Management activity. The same office that researches genealogy requests, the National Records Center (NRC), also performs other functions, such as FOIA operations, retrieving, storing, and moving files. To improve efficiency and decrease wait times for USCIS Genealogy Program customers, processing of USCIS genealogy requests transitioned from Washington, DC, to USCIS NRC in Lee’s Summit, Missouri. This change enabled USCIS to revise its cost estimation methodology to incorporate a proportional share of the NRC’s operating costs based on the staff devoted to the genealogy program. USCIS estimates that there are 313 The current FY 2022/2023 fee review continues to use this new activity. See the supporting documentation accompanying this proposed rule for more information on the activities in the ABC model. PO 00000 Frm 00112 Fmt 4701 Sfmt 4702 approximately 6 genealogy positions out of the total 24,266 positions in the fee review. USCIS used historical information to calculate completion rates for genealogy search and records requests. The completion rates allow for separate search and record request fees based on the average time to complete a request. As such, the proposed fees each represent the average staff time required to complete the request, similar to most other fees proposed in this rule. The completion rates in the 2020 fee rule documentation did not reflect the workload transfer. Updated data that reflects the change were used for this fee review and shows that completion rates decreased. In addition to genealogy staffing, USCIS also incurs overhead costs associated with storing and managing genealogy records, including the cost of facilities and information technology. The projected costs included a portion of these overhead costs. The paper filing fee includes a portion of lockbox costs for genealogy requests filed on paper. Requests filed online do not include lockbox costs. USCIS estimates that over 90 percent of genealogy customers may file online. The proposed fees for Form G–1041 are $100 for online and $120 for paper filing. The proposed fees for Form G– 1041A are $240 for online and $260 for paper filing. See Table 23 for a summary of current and proposed genealogy fees. As explained earlier in this section, the proposal may allow some customers to file a single search request with a single fee and still receive the genealogy information that they requested. The proposal to include pre-existing digital records, if they exist, via email in response to the initial search request would also be more efficient than the current process, as described earlier in this section. USCIS estimates that genealogy fees may provide $1.9 million in revenue or approximately 0.04 percent of the USCIS total $5,163.7 million in revenue from the proposed fee structure. E:\FR\FM\04JAP2.SGM 04JAP2 513 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 23: Genealogy Fee Comparison Form No. G-1 G-1041 Current Proposed Differenc~·1 Percent~;; Fee(s) Fee ~fference ' .,. ____.,""'"'~ Form Description i __ Genealogy Index Search Request - Online $65 Search Request $65 $120 $55 GPn"'<il $100 $351 . 54% .,.,~.,. ."·~· · · · · · · I ""-I 85% - Paper G-1041A Genealogy Records Request Online $65 $240 $175 G-1041A Genealogy Records Request Paper $65 $260 $195 300% $130 $100 -$30 -23% Genealogy Index Search Request and Records Request - Online , (digital records) khammond on DSKJM1Z7X2PROD with PROPOSALS2 2. Request for a Certificate of NonExistence USCIS allows individuals to request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States. See 8 CFR 103.7(f) (Oct. 1, 2020) (stating, ‘‘The Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records.’’). This service is often used by individuals gathering genealogical records to claim the citizenship of another nation. Historically, USCIS has operated the Certificate of Non-Existence request process informally and at no cost to individuals requesting a Certificate. USCIS has now proposed to create USCIS Form G–1566, Request for a Certificate of Non-Existence to enable customers to request the Certificate. A Request for a Certificate of NonExistence is mailed to and processed at the NRC. USCIS is currently seeking public comment and OMB approval for creation of Form G–1566, Request for a Certificate of Non-Existence, in compliance with the requirements of the PRA. See 86 FR 68680 (December 3, 2021) (requesting public comments on the information collection instrument for 30 days).314 314 See Notice by USCIS, Agency Information Collection Activities; New Collection: Request for a Certificate of Non-Existence, available at https:// www.federalregister.gov/documents/2021/12/03/ 2021-26245/agency-information-collection- VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 DHS proposes a fee of $330 for a request for a Certificate of NonExistence. DHS calculated the fee to recover the estimated full cost of processing these requests. If finalized, the fee will be established in this rule and will be required for submission of Form G–1566 if it is approved before this rule takes effect. If the form is not approved before this rule is to take effect, the fee will be due with the submission of a non-form request until the form is prescribed as provided in 8 CFR 299.1. DHS proposes this fee consistent with the full cost recovery model used for this rule to generate revenue to mitigate the need for other fee payers to fund the costs of providing certificates. The proposed fee for a request for a Certificate of Non-Existence is based on the same ABC model used to calculate the other proposed fees. USCIS created a new activity for this workload, called Certify Nonexistence, in the ABC model. Similar to the genealogy fee, previous fee reviews captured this work as part of the Records Management activity. See the supporting documentation accompanying this proposed rule for more information on the activities in the ABC model. Additionally, USCIS used subject matter expert input to determine a completion rate for reviewing and responding to requests for a Certificate of Non-Existence. Therefore, the proposed fee represents the average staff time required to complete a request, activities-new-collection-request-for-a-certificate-ofnon-existence. PO 00000 Frm 00113 Fmt 4701 Sfmt 4702 similar to most other fees proposed in this rule. The fee DHS proposes does not reflect cost reallocation from other non-paying workloads to processing requests for a Certificate of NonExistence, because DHS determined that including such costs would disproportionately affect the small number of requestors. Q. Fees Shared by CBP and USCIS CBP shares the workload with USCIS in adjudicating the following immigration benefit requests: • Form I–192, Application for Advance Permission to Enter as a Nonimmigrant. • Form I–193, Application for Waiver of Passport and/or Visa. • Form I–212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal. • Form I–824, Application for Action on an Approved Application or Petition. USCIS and CBP each keep the revenue for the applications that they adjudicate. Tables 20 and 21 summarize CBP and USCIS information for these shared workloads. Table 24 provides revenue information for both DHS components. CBP provided revenue collections from FY 2014 to FY 2020 for these immigration benefit requests. Travel restrictions in FY 2020 likely lowered revenue collections. DHS believes that pre-pandemic data is likely to be more representative of reasonable expectations for FY 2022 and FY 2023 and so DHS decided to use FY 2019 amounts to reflect costs and revenue before the pandemic. USCIS divided the E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.063</GPH> G-1041 · and G1041A 514 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules revenue collections by the fee for each immigration benefit request to derive the fee-paying volume for each immigration benefit request. CBP did not provide total workload counts for these immigration benefit requests. Table 24 summarizes the USCIS and CBP revenue collections, current fees, and fee-paying actuals. Table 24: USCIS and CBP FY 2019 Revenue Actuals Fee-Pavine Receipts Form Revenue Collections Current Fee $24,678,675 1-192 NIA 28,569 1-192 USCIS Total $21,472,270 $930 23,088 1-192 CBP Total $3,206,405 $585 5,481 $3,980,339 NIA 6,804 1-193 1-193 USCIS Total $26,325 $585 45 1-193 CBP Total $3,954,014 $585 6,759 $7,877,160 NIA 8,470 1-212 1-212 USCIS Total $7,697,670 $930 8,277 193 1-212 CBP Total $179,490 $930 $4,944,135 1-824 NIA 10,633 1-824 USCIS Total $4,920,945 $465 10,583 1-824 CBP Total $23,190 $465 50 USCIS and CBP Total $41=490=034 54=476 $34,117,210 USCIS Total 41,993 $7,363,099 CBP Total 12,483 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 methodology as other proposed fees and then added information from CBP into the USCIS fee schedule. CBP estimated the total cost for Forms I–192 and I–193 in FY 2019. As stated earlier, DHS used FY 2019 CBP data because it is likely more representative of a typical year than more recent data. CBP did not estimate the total cost of Forms I–212 or I–824 in FY 2019. Based on CBP revenue collections in Table 24, feepaying receipts for Forms I–212 and I– 824 appear to be very low. USCIS incorporated the total costs and derived fee-paying volume for the respective PO 00000 Frm 00114 Fmt 4701 Sfmt 4702 CBP workloads into the USCIS fee schedule and added the CBP estimated costs to the USCIS estimated total cost from the ABC model. USCIS added the CBP-derived fee-paying volume to the USCIS fee-paying volume estimates. We divided the combined total cost by the combined total fee-paying volumes for these immigration benefits. Table 25 details the estimated cost data, feepaying receipts, fee-paying unit cost, and proposed fees for combined USCIS and CBP workloads. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.064</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 DHS proposes to move to a single fee for each of these four immigration benefit requests. The proposed fee is the same whether CBP or USCIS adjudicates the application. To calculate the proposed fees for these four forms, DHS combined the estimated cost and volume information for these applications that both USCIS and CBP adjudicate. DHS adds together the feepaying receipt and cost data for both components, as shown in Table 25, when calculating overall estimated costs and projected receipts. USCIS calculated proposed fees using the same 515 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 25: USCIS and CBP FY 2022/2023 Estimated Costs Form Cost Data Estimated FeePayine Receipts $23,143,825 10,954 $20,829,436 5,473 $2,314,389 5,481 $19,478,943 6,772 $17,020 13 $19,461,923 6,759 $7,457,101 7,260 $7,457,101 7,067 193 $5,106,968 10,633 $5,106,968 10,242 50 $5521862837 352278 $33,410,525 22,795 $21,776,312 12,483 1-192 1-192 USCIS Total 1-192 CBP Total 1-193 1-193 USCIS Total 1-193 CBP Total 1-212 1-212 USCIS Total 1-212 CBP Total 1-824 1-824 USCIS Total 1-824 CBP Total USCIS and CBP Total USCIS Total CBP Total The proposed fees represent single DHS fees for each of these workloads by combining the estimated costs and feepaying volumes of USCIS and CBP. DHS believes that a single fee for each of these shared workloads will reduce confusion for individuals interacting with CBP and USCIS. DHS used the combined CBP and USCIS fee-paying unit cost to calculate the proposed fees. DHS proposes to limit the fee increases for Forms I–192 and I–193. See section V.B.3 for information on how DHS assesses fees. The proposed fees for Forms I–212 and I–824 would recover full cost. Under this proposal, CBP and USCIS will each continue to keep the revenue that they collect for these fees. of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–100 (NACARA)). The IEFA fees for this application have not changed since 2005. The proposed fee remains less than USCIS’ estimated costs associated with adjudicating the application. Additionally, DHS proposes to combine the current multiple fees into a single Form I–881 fee because we have no data that supports limiting the amount charged to a family. INS implemented two fees for this benefit request in 1999. See 63 FR 64895 (Nov. 24, 1998) (proposed rule) and 64 FR 27856 (May 21, 1999) (interim final rule). The two IEFA fees were $215 for an individual and $430 as a maximum per family. See 64 FR 27867–27868. EOIR collected a separate $100 fee. Id. INS used ABC to determine the proposed IEFA fees. See 63 FR 64900. The IEFA NACARA fees have only changed by inflation since creation of $480 $499 $675 - the NACARA program. See 69 FR 20528 (Apr. 15, 2004) and 70 FR 56182 (Sept. 26, 2005). The current fees are as follows: 1. $285 for individuals, 2. $570 maximum for families, and 3. $165 at EOIR, whether an individual or family. In FY 2020, Form I–881 fees generated $107,640 in IEFA revenue. Approximately 53 percent of applicants paid the $285 fee. See Table 26. EOIR provided receipt information for FY 2016 to FY 2018. EOIR received 339 applications in FY 2016, 326 in FY 2017, and 277 in FY 2018. DHS proposes no changes to the EOIR fee because it lacks the authority to change DOJ fees. Table 26: FY 2020 1-881 Revenue and Fee-Paying Data Fee FY 2020 FY 2020 Fee-Paying FY 2020 Percentage of Revenue Receipts Receipts Volume 1-881 Individual $285 $68,685 241 53 percent 1-881 Family $570 $5,130 9 2 percent 1-881 EOIR $165 $33,825 205 45 percent VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.066</GPH> Description EP04JA23.065</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 R. Form I–881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–100 (NACARA)) DHS proposes to adjust the fee for Form I–881, Application for Suspension FY 2022/2023 Fee- Proposed Payine Unit Cost Fee $2,113 $1,100 $3,806 $422 $2,876 $695 $1,309 $2,879 $1,027 $1,395 $1,055 516 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Total In prior fee rules, DHS has not changed the Form I–881 fees. See 72 FR 29854, 75 FR 58964, and 75 FR 73312. DHS excluded this immigration benefit request from previous fee rules, essentially treating it like other temporary programs or policies such as TPS and DACA. See 81 FR 73312. DHS expects the population will be exhausted eventually due to relevant eligibility requirements. Id. DHS proposes a single $340 fee for any Form I–881 filed with USCIS. See proposed 8 CFR 106.2(a)(54). DHS estimated the fee-paying unit cost (model output) for Form I–881 is $2,382. USCIS forecasts an average of 385 annual Form I–881 receipts in the FY 2022/2023 biennial period. Given the low volume and high model output, DHS proposes a fee that is far less than the estimated cost to adjudicate the form. DHS believes that the fee that the ABC model calculates for this form would be overly burdensome and could result in an eligible applicant being unable to file a request. Considering both its affordability and that the estimated volume is so small, recovering full cost for this workload would not significantly affect other fees. USCIS does not track the different level of effort required to adjudicate Form I–881 applications filed by an individual compared to a family. However, because DHS is proposing a fee that is only 14 percent of the relative cost to USCIS to adjudicate the from, DHS is not providing a multiple filing discount to applicants in the same family who file their Form I–881 simultaneously. khammond on DSKJM1Z7X2PROD with PROPOSALS2 S. 9–11 Response and Biometric EntryExit Fee for H–1B and L–1 Nonimmigrant Workers (Pub. L. 114–113 Fees) In section 402(g) of Div. O of the Consolidated Appropriations Act, 2016 (Pub. L.114–113) 315 enacted December 18, 2015, Congress required the 315 Section 402(g) of Div. O of Public Law 114– 113 added a new section 411 to the Air Transportation Safety and System Stabilization Act, 49 U.S.C. 40101 note. Section 411 provided that the fees collected thereunder would be divided 50/50 between general Treasury and a new ‘‘9–11 Response and Biometric Exit Account,’’ until deposits into the latter amounted to $1 billion, at which point further collections would go only to general Treasury. Deposits into the 9–11 account are available to DHS for a biometric entry-exit screening system as described in 8 U.S.C. 1365b. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 submission of an additional fee of $4,000 for certain H–1B petitions and $4,500 for certain L–1A and L–1B petitions. The language in Public Law 114–113 is ambiguous and, as a result, DHS had to determine whether the fee applied to all extension petitions by covered employers, or just those for which the fraud fee was also charged (extension of stay with change of employer). DHS interpreted the Public Law 114–113 fee to apply only when the fraud fee, described in INA sec. 214(c)(12), 8 U.S.C. 1184(c)(12), is also required and issued guidance accordingly. See 8 CFR 103.7(b)(1)(i)(III) and (JJJ) (Oct. 1, 2020). However, in the 2020 fee rule, DHS revisited the issue and interpreted Public Law 114–113 fee as applying to all extension of stay petitions even when the fraud fee is not applicable. DHS still believes that the language in the subject statute is ambiguous and could be interpreted as provided in the 2020 fee rule. However, DHS is not including the 9–11 Response and Biometric Entry-Exit Fees for H–1B and L–1 Nonimmigrant Workers in this rulemaking. Thus, 8 CFR 106.2(c)(7) and (8) as codified effective October 2, 2020, are proposed to be revised in this rulemaking with the text that existed immediately before the 2020 fee rule. See proposed 8 CFR 106.2(c)(8) and (9) (setting out the text of 8 CFR 103.7(b)(1)(i)(III) and (JJJ) as of October 1, 2020, except providing that the fee is scheduled to end on September 30, 2027, as required by section 30203 of Public Law 115–123 (Feb. 9, 2018)). DHS may address the 9–11 Response and Biometric Entry-Exit Fees for H–1B and L–1 Nonimmigrant Workers in a separate rulemaking in the future. T. Adjusting USCIS Fees for Inflation DHS is proposing to codify a provision that will authorize it to adjust the fees prescribed in proposed 8 CFR 106.2 by the rate of inflation. Proposed 8 CFR 106.2(c). Before DHS removed it with the 2020 fee rule, 8 CFR 103.7(b)(3)(Oct. 1, 2020) provided that DHS may adjust USCIS immigration benefit fees annually by publication of an inflation adjustment notice in the Federal Register. The adjustment was based on Federal employee salary inflation figures issued by the Office of Management and Budget. Id. DHS last adjusted fees by inflation in 2005. See, PO 00000 Frm 00116 Fmt 4701 Sfmt 4702 70 FR 56182 (Sept. 26, 2005). In the 2020 fee rule, DHS removed that provision for a number of reasons. First, an agency cannot publish a document in the Notices category of the Federal Register that provides that regulated parties ignore the CFR and follow what the Notice provides instead. That violates the Federal Register Act, 44 U.S.C. 1510, and its implementing regulations, 1 CFR part 21. Thus, 8 CFR 103.7(b)(3) did not provide the authorization for which it was intended. In addition, DHS felt that adjusting USCIS fees by inflation or social security cost of living adjustments would be insufficient to recover the full cost of providing adjudication and naturalization services. See 85 FR 46867. DHS has reconsidered the value of codifying an inflationary adjustment provision. Regardless of the CFO Act requirements, and although DHS has completed its biennial fee reviews as required, the time required to propose and finalize new full cost recovery fee schedules does not allow DHS to make timely adjustments to USCIS fees to keep up with the effects of changes in immigration laws, policy, or the costs of services. DHS has not calculated what the effects of an inflation adjustment of fees in intervening years between fee rules would have been. However, while we assume that inflationary adjustments would not have provided USCIS with sufficient revenue to fully cover costs, we think intermittent adjustments would have ameliorated the size of fee adjustments when they were made via rulemaking. DHS proposes to use the Consumer Price Index for All Urban Consumers (CPI–U), as published by the U.S. Department of Labor, U.S. Bureau of Labor Statistics, as the inflation index for these fee adjustments.316 Proposed 8 CFR 106.2(c). In recognition of the rapid growth in the size of transfers between a growing number of stakeholders affected by the past three fee rules, adjusting USCIS fees for inflation as measured by the CPI–U may insure future revenues against the gradual erosion of real fee revenue dollars in the event that future rulemakings are 316 See, Consumer Price Index, at https:// www.bls.gov/news.release/cpi.toc.htm (last viewed July 27, 2022). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.067</GPH> Description Table 26: FY 2020 1-881 Revenue and Fee-Payin~ Data Fee FY 2020 FY 2020 Fee-Paying FY 2020 Percentage of Receipts Revenue Receipts Volume $107,640 455 100 percent NIA Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 slowed by intensive, careful consideration of complex competing interests and impacts. Consistent with the FPG, this approach may also base fees on the constant-dollar value to consumers, generally, rather than more opaque estimates of Government costs or the salaries of Federal employees. Finally, using the CPI–U as our inflation index for all fees is consistent with various statutes that have provided that USCIS will use the CPI to adjust certain fees. See, e.g., Public Law 106–553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A–68 (Dec. 21, 2000) (premium processing fee adjustment); 48 U.S.C. 1806(a)(6)(A)(ii) (Authority to adjust the CNMI education fee for inflation), and; 8 U.S.C. 1356(u)(3)(C) (adjustment of premium processing fees on a biennial basis). The impacts of such an adjustment would be analyzed in a future rule should DHS decide to use this proposed authority. In such a case, the inflation adjusted fees may be higher or lower than proposed here. For example and as a point of comparison only, if DHS adjusted the Form N–400 and biometric services fee by inflation as of March 22, 2022, then the inflation-adjusted fees would be at least $865, $140 more than the current fees for Form N–400 of $725 ($640 + $85), and $105 more than the proposed N–400 fee of $760, but less than the fee set in the 2020 fee rule of $1,170.317 Other inflation adjusted fees, such as those for Forms I–129 or I–485, would likely be less than the fees proposed in this rule. Future inflationbased fee increases would not include policy changes. They would only adjust fees. It is unlikely that DHS would pursue an inflation-based fee adjustment until FY 2025 or at least one year after DHS finalizes the fees it proposes in this rule. 317 Current fees became effective on Dec. 23, 2016. See 81 FR 73292. The current fees for Form N–400 ($640) and biometric services ($85) total $725 for most applicants. The consumer price index for all urban consumers (CPI–U) was 241.432 in Dec. 2016 and 289.109 in Mar. 2022. The change in the index between these two periods was 47.68 or 19.75 percent. See U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI–U) tables, available at https://data.bls.gov/ timeseries/CUUR0000SA0. The inflation adjusted amounts using this example would be as follows: N–400: $640 multiplied by 1.1975, which is approximately $766.38; biometric services fee: $85 multiplied by 1.1975, which is approximately $101.79. DHS rounds fees to the nearest $5. Rounded to the nearest $5, the inflation adjusted fees would be $765 and $100, totaling $865. The proposed fee for Form N–400 (including the cost of biometric services) is $760, which is $35 or 5 percent more than the total current fees of $725 for Form N–400 and biometric services. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 U. Miscellaneous Technical and Procedural Changes DHS proposes several technical or procedural changes. This rule proposes to move the fee regulations for USCIS to a separate part of chapter I of title 8 of the CFR. It moves them from 8 CFR part 103 to 8 CFR part 106 to reduce the length and density of part 103 as well as to make it easier to locate specific fee provisions. In addition to the renumbering and redesignating of paragraphs, this proposed rule has reorganized and reworded some sections to improve readability. However, as noted earlier in this preamble, DHS is proposing to adopt the changes made by the 2020 fee rule as proposed for revision or republication in this rule. DHS also proposes to republish the amended title of 8 CFR part 103 to make it more descriptive of its contents. See proposed republished 8 CFR part 103. The title of part 103 before October 2, 2020, was ‘‘Immigration Benefits; Biometric Requirements; Availability of Records.’’ Part 103 contains several significant requirements for filing requests, forms, and documents with USCIS, especially in 8 CFR 103.2, which should be made clearer to the users of that part. Therefore, DHS proposes to revise the title of the part to include a reference to filing requirements. The proposed title is ‘‘Part 103— Immigration Benefit Requests; USCIS Filing Requirements; Biometric Requirements; Availability of Records.’’ In addition, DHS is proposing and republishing a severability provision in new 8 CFR part 106. As stated repeatedly in this preamble, the fees DHS is proposing in this rule are essential to USCIS being able to fund its operations without further deterioration of its services. While all of the proposed fees and other changes in this rule are needed to ensure adequate resources, partially achieving the objectives of this rule is preferable to achieving none of them. DHS believes that some of the provisions of each new part can function sensibly independent of other provisions. As explained in this preamble, ABC and the full cost recovery fee model that DHS uses to calculate the fees in this rule results in most of the fees being dependent on policy decisions that affect the level of other fees. For example, when DHS shifts the cost of benefit request fees due to policy considerations, exempts requests from fees, or if fees are capped by law, most other fees must/then increase to compensate to recover full cost. On the other hand, certain fees, like the Asylum Program Fee and PO 00000 Frm 00117 Fmt 4701 Sfmt 4702 517 genealogy fees, could be removed entirely without affecting all other fees generally, although they would reduce USCIS projected revenue or carryover balances. For example, absent the Asylum Program Fee or appropriations, USCIS may continue to implement the Asylum Processing IFR, perhaps at a reduced level. Such a funding decision may be similar to when USCIS anticipated appropriations to fund RAIO, SAVE, and the Office of Citizenship when it finalized fees in the FY 2010/2011 fee rule. See 75 FR 58961, 58966. When appropriations resources did not fully materialize, USCIS used other fee revenue to support these programs in the time between the FY 2010/2011 fee rule and the FY 2016/ 2017 fee rule. See 81 FR 26910–26912. If Congress provides full or partial appropriations to fund the Asylum Processing IFR, then DHS may be able to remove or reduce the proposed $600 Asylum Program Fee in a final rule. If a court ruling were to enjoin the Asylum Processing IFR or the Asylum Program Fee, then other USCIS operations could continue to benefit from the increased revenue from other proposed fees while halting or reducing implementation of the Asylum Processing IFR. Therefore, to protect the goals for which this rule is being proposed DHS is codifying our intent that the provisions be severable so that, if necessary, the regulations can continue to function should a provision be stricken. See proposed republished 8 CFR 106.6. IX. Proposed Fee Adjustments to IEFA Immigrant Benefits At current fee levels, projected USCIS costs for FY 2022 and FY 2023 exceed projected revenue by an average of $1,262.3 million each year. See Table 6, IEFA Non-Premium Cost and Revenue Comparison. Therefore, DHS proposes to adjust the fee schedule to recover the full cost of processing immigration benefit requests and to continue to maintain or improve current service delivery standards. After resource costs are identified, the ABC model distributes them to USCIS’ primary processing activities. Table 27 outlines total IEFA costs by activity. See the supporting documentation in the docket of this rulemaking for more information on the ABC model, activities, and results described in this section. While not an activity, the table lists the Asylum Processing IFR as a separate row to be transparent. E:\FR\FM\04JAP2.SGM 04JAP2 518 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 27: Projected IEFA Costs by Activity (Dollars in Millions) Certify Nonexistence Conduct TECS Check Direct Costs Fraud Detection and Prevention Inform the Public Intake Issue Document Make Determination Management and Oversight Perform Biometrics Services Subtotal Manage Biometric Services Collect Biometric Data Check Fingerprints Check Name Records Management Research Genealogy Systematic Alien Verification for Entitlements Subtotal before Asylum Processing IFR Asvlum Processing IFR Total with Asvlum Processine: IFR khammond on DSKJM1Z7X2PROD with PROPOSALS2 Next, the ABC model distributes activity costs to immigration benefit requests. Each total cost result is based on the resources, activities, and various drivers which contribute to the estimated cost of its completion. The ABC model estimates total cost before calculating unit costs. For total cost by VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 $1.3 $129.6 $117.0 $328.6 $315.9 $126.5 $47.2 $1,852.4 $1,256.7 $190.4 $45.9 $38.1 $39.3 $67.0 $255.0 $1.9 $50.6 $1.4 $133.2 $116.7 $342.1 $323.6 $128.4 $46.4 $1,901.1 $1,275.8 $193.5 $46.9 $39.2 $39.9 $67.4 $260.5 $1.9 $51.7 FY 2022/2023 Avera~e $1.4 $131.4 $116.8 $335.4 $319.8 $127.5 $46.8 $1,876.8 $1,266.3 $191.9 $46.4 $38.7 $39.6 $67.2 $257.8 $1.9 $51.1 $4,673.3 $4,776.4 $4,724.8 $438.2 $5,111.5 $413.6 $5,190.0 $425.9 $5,150.7 FY 2022 FY2023 activity as unit costs, see Appendix VIII of the supporting documentation included in this docket. Table 28 summarizes total cost estimates by immigration benefit request based on the ABC model results. As explained earlier in the preamble, the ABC model excludes costs for TPS and DACA. The PO 00000 Frm 00118 Fmt 4701 Sfmt 4702 table includes benefit requests without fees. This table includes USCIS costs in the 2-year average for FY 2022/2023. It also includes CBP costs; as such, the total in Table 28 is higher than in Table 27. See Table 25 in section VIII.Q. for CBP total costs separately. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.068</GPH> Activity 519 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 28: Projected FY 2022/2023 Average Annual Total Cost per Immigration Benefit with Proposed Fees (Dollars in Millions) Immigration Benefit Request Total Cost 1-90 Application to Replace Permanent Resident Card Subtotal $213.56 1-90 Application to Replace Permanent Resident Card - Online $131.23 1-90 Application to Replace Permanent Resident Card - Paper $82.33 1-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 1-129 Petition for a Nonimmigrant Worker Subtotal $355.89 H-1 Classification $247.11 H-2A - Named Beneficiaries $3.22 H-2B - Named Beneficiaries $1.96 L Classification $43.24 0 Classification $21.17 I-129CW, E, H-3, TN, P, Q, or R Classifications $30.59 H-2A - Unnamed Beneficiaries $6.89 H-2B - Unnamed Beneficiaries $1.71 I-129F Petition for Alien fiancé(e) $22.01 1-130 Petition for Alien Relative Subtotal $500.49 1-130 Petition for Alien Relative - Online $112.4 1-130 Petition for Alien Relative - Paper $388.09 1-131 Application for Travel Document $117.37 1-131 Refugee Travel Document $9.58 1-13 lA Application for Carrier Documentation $2.70 1-140 Immigrant Petition for Alien Worker $73.87 1-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) 1-192 Application for Advance Permission to Enter as Nonimmigrant VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM $0.08 $23.14 04JAP2 EP04JA23.069</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 $2.31 520 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 28: Projected FY 2022/2023 Average Annual Total Cost per Immigration Benefit with Proposed Fees (Dollars in Millions) Immigration Benefit Request Total Cost 1-193 Application for Waiver of Passport and/or Visa $19.48 1-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 1-290B Notice of Appeal or Motion $47.76 1-360 Petition for Amerasian, Widow(er), or Special Immigrant $36.1 1-407 Abandonment of Lawful Permanent Resident Status $0.03 1-485 Application to Register Permanent Residence or Adjust Status $648.53 l-526/l-526E Immigrant Petition by Standalone/Regional Center Investor $32.06 1-539 Application to Extend/Change Nonimmigrant Status Subtotal $197.43 1-539 Application to Extend/Change Nonimmigrant Status - Online $71.58 T-539 Application to Extend/Change Nonimmigrant Status - Paper $125.85 1-589 Application for Asylum and for Withholding of Removal $275.94 1-590 Registration for Classification as Refugee $205.38 l-600/600A; l-800/800A lntercountry Adoption-Related Petitions and Applications $3.54 l-600A/l-600 Supplement 3 Request for Action on Approved Form l-600A/l-600 $0.03 $14.33 l-601A Provisional Unlawful Presence Waiver $32.4 1-602 Application By Refugee For Waiver of Grounds oflnadmissibility $0.07 T-604 Determination on Child for Adoption $0.36 1-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) $3.19 1-687 Application for Status as a Temporary Resident $0.00 T-690 Application for Waiver of Grounds oflnadmissibility $0.02 1-694 Notice of Appeal of Decision $0.00 1-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) $0.02 1-730 Refugee/Asylee Relative Position (and Travel Eligibility) $17.83 1-751 Petition to Remove Conditions on Residence 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4725 $114.73 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.070</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 1-601 Application for Waiver of Grounds oflnadmissibility VerDate Sep<11>2014 $7.46 521 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 28: Projected FY 2022/2023 Average Annual Total Cost per Immigration Benefit with Proposed Fees (Dollars in Millions) Immigration Benefit Request Total Cost I-765 Application for Employment Authorization Subtotal $517.71 I-765 Application for Employment Authorization - Online $16.72 I-765 Application for Employment Authorization - Paper $501. T-800A Supplement 3 Request for Action on Approved Form T-800A $0.67 I-817 Application for Family Unity Benefits $0.33 1-824 Application for Action on an Approved Application or Petition $5.11 I-829 Petition by Investor to Remove Conditions on Permanent Resident Status I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal $0.87 I-910 Application for Civil Surgeon Designation $0.51 I-914 T Nonimmigrant Status $3.16 I-918 UNonimmigrant Status $53.82 I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant $0.67 I-956 Application For Regional Center Designation $2.18 I-956G Regional Center Annual Statement $2.4 N-300 Application to File Declaration oflntention $0.01 N-336 Request for a Hearing on a Decision in Naturalization Proceedings Subtotal $7.89 N-336 Request for Hearing on a Decision in Naturalization Proceedings Online $2.58 N-336 Request for Hearing on a Decision in Naturalization Proceedings - Paper $5.32 $732.98 N-400 Application for Naturalization - Online $381.16 N-400 Application for Naturalization - Paper $351.82 N-470 Application to Preserve Residence for Naturalization Purposes $0.21 N-565 Application for Replacement Naturalization/Citizenship Document Subtotal $8.07 N-565 Application for Replacement Naturalization/Citizenship Document Online VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 $4.87 EP04JA23.071</GPH> N-400 Application for Naturalization Subtotal khammond on DSKJM1Z7X2PROD with PROPOSALS2 $22.79 522 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 28: Projected FY 2022/2023 Average Annual Total Cost per Immigration Benefit with Proposed Fees (Dollars in Millions) Immigration Benefit Request Total Cost N-565 Application for Replacement Naturalization/Citizenship Document Paper N-600 Application for Certificate of Citizenship Subtotal $23.64 N-600 Application for Certificate of Citizenship - Online $7.33 N-600 Application for Certificate of Citizenship - Paper $16.31 N-600K Application for Citizenship and Issuance of Certificate Under Section 322 Subtotal $3.03 N-600K Application for Citizenship and Issuance of Certificate - Online $1.24 N-600K Application for Citizenship and Issuance of Certificate - Paper $1.79 USC IS Immigrant Fee $93.75 H-1 B Registration Process $43.25 Request for Certificate of Non-Existence $1.35 G-1041 Genealogy Index Search Request Subtotal $1.10 G-1041 Genealogy Index Search Request- Online $1.03 G-1041 Genealogy Index Search Request - Paper $0.07 G-1041A Genealogy Records Request Subtotal $0.79 G-1041A Genealogy Records Request - Online $0.74 G-1041A Genealogy Records Request - Paper $0.05 Automatic Certificate of Citizenship $1.39 Credible Fear $157.16 DNA Collection $0.48 Overseas Verifications $0.46 Reasonable Fear $31.96 SAVE reimbursable workload $51.13 Subtotal $4,746.58 $425.90 Asylum Program Fee Total $5,172.48 Table 29 depicts the current and proposed USCIS fees for immigration VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 benefit requests and biometric services. Current USCIS fees are available to the PO 00000 Frm 00122 Fmt 4701 Sfmt 4702 public as part of the current Form G– 1055, Fee Schedule, available at https:// E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.072</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 $3.20 523 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules I-90 I-90 I-102 I-129 I-129 I-129 I-129 khammond on DSKJM1Z7X2PROD with PROPOSALS2 I-129 VerDate Sep<11>2014 this rulemaking. For a more detailed description of the basis for the changes described in this table, see Appendix Table 3 in the supporting documentation accompanying this proposed rule. See Table 1 in the Executive Summary of this preamble for a comparison of current and proposed fees that includes additional contributing factors, like the proposal to remove the separate biometric services fee in most cases. Table 1 may more accurately reflect how the proposed fees affect users. Table 29: Proposed Fees by Immigration Benefit Current Proposed Immigration Benefit Request Delta($) Fee Fee Application to Replace Permanent Resident Card $455 $455 $0 Online Application to Replace Permanent Resident Card $455 $465 $10 Paper Application for Replacement/Initial $445 $680 $235 Nonimmigrant ArrivalDeparture Document Petition for a Nonimmigrant $460 $780 $320 Worker: H-1 Classifications H-2A-Named $460 $1,090 $630 Beneficiaries H-2B - Named Beneficiaries $460 $1,080 $620 Petition for L $460 $1,385 $925 Nonimmigrant Worker Petition for 0 $460 $1,055 $595 Nonimmigrant Worker 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Percent Change 0% 2% 53% 70% 137% 135% 201% 129% EP04JA23.073</GPH> www.uscis.gov/g-1055; individual web pages for each form are available from https://www.uscis.gov/forms/all-forms; and the USCIS Fee Calculator is available at https://www.uscis.gov/ feecalculator. In addition, the proposed fees are available in the draft version of Form G–1055 as part of the docket for Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 29: Proposed Fees by Immi~ration Benefit Current Proposed Immigration Benefit Request Delta($) Fee Fee Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for I-129CW, Nonimmigrant Worker: E $460 $1,015 $555 and 1-129 and TN Classifications; and Petition for Nonimmigrant Worker: H-3, P, Q, orR Classification. H-2A - Unnamed 1-129 $460 $530 $70 Beneficiaries H-2B - Unnamed 1-129 $460 $580 $120 Beneficiaries Petition for Alien fiancé(e) I-129F $535 $720 $185 Petition for Alien Relative 1-130 $535 $710 $175 Online Petition for Alien Relative 1-130 $535 $820 $285 Paper Application for Travel 1-131 $575 $630 $55 Document Refugee Travel Document 1-131 for an individual age 16 or $135 $165 $30 older Refugee Travel Document $105 $135 $30 1-131 for a child under the age of 16 Application for Carrier I-BIA $575 $575 $0 Documentation Immigrant Petition for Alien 1-140 $700 $715 $15 Worker Application for Relief Under Former Section 1-191 $930 $930 $0 212(c) of the Immigration and Nationality Act (INA) Application for Advance $585/ 1-192 Permission to Enter as $1,100 $515/$170 $930318 Nonimmigrant Application for Waiver of $585 $695 $110 1-193 Passport and/or Visa Application for Permission to Reapply for Admission 1-212 $930 $1,395 $465 into the U.S. After Deportation or Removal I-290B Notice of Appeal or Motion $675 $800 $125 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Percent Chan~e 121% 15% 26% 35% 33% 53% 10% 22% 29% 0% 2% 0% 88%/18¾ 19% 50% 19% EP04JA23.074</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 524 525 Table 29: Proposed Fees by Immigration Benefit Current Proposed Immigration Benefit Request Delta($) Fee Fee Petition for Amerasian I-360 Widow(er) or Special $435 $515 $80 Immigrant Application to Register $1, 140/ $1,540 $400/$790 I-485 Permanent Residence or $750319 Adjust Status I-526/IImmigrant Petition by $3,675 $11,160 $7,485 526E Standalone/Regional Center Application to Extend/Change I-539 $370 $525 $155 Nonimmigrant Status Online Application to Extend/Change I-539 $370 $620 $250 Nonimmigrant Status Paper Petition to Classify Orphan as an Immediate I-600/ Relative/Application for $775 $920 $145 600A Advance Processing of an Orphan Petition Request for Action on I-600A/INIA $455 $70 Approved Form I-600NI600 Supp. 3 600 Application for Waiver of $930 $1,050 $120 I-601 Grounds of Inadmissibility Application for Provisional I-601A $630 $1,105 $475 Unlawful Presence Waiver Application for Waiver of the Foreign Residence I-612 Requirement (Under $930 $1,100 $170 Section 212(e) of the INA, as Amended) Application for Status as a Temporary Resident under I-687 Section 245A of the $1,130 $1,240 $110 Immigration and Nationality Act Application for Waiver of I-690 $715 $985 $270 Grounds of Inadmissibility VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Percent Change 18% 35%/105¾ 204% 42% 68% 19% 18% 13% 75% 18% 10% 38% EP04JA23.075</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 29: Proposed Fees bv Immi2ration Benefit Current Proposed Delta($) Immigration Benefit Request Fee Fee Notice of Appeal of 1-694 $890 $1,155 $265 Decision Application to Adjust Status From Temporary to 1-698 $1,670 $1,670 $0 Permanent Resident (Under Section 245A of the INA) Petition to Remove 1-751 $595 $1,195 $600 Conditions on Residence Application for 1-765 Employment Authorization $410 $555 $145 - Online Application for 1-765 Employment Authorization $410 $650 $240 - Paper Petition to Classify Convention Adoptee as an Immediate 1-800/ Relative/Application for $775 $920 $145 800A Determination of Suitability to Adopt a Child from a Convention Countrv I-800A Request for Action on $385 $455 $70 Supp.3 Approved Form I-800A Application for Family 1-817 $600 $875 $275 Unitv Benefits Application for Action on 1-824 an Approved Application or $465 $675 $210 Petition Petition by Investor to 1-829 Remove Conditions on $3,750 $9,525 $5,775 Permanent Resident Status Application for Suspension of Deportation or Special $285/ 1-881 $340 $55/-$230 570320 Rule Cancellation of Removal Application for Civil 1-910 $785 $1,230 $445 Surgeon Designation Petition for Qualifying $230 $270 $40 1-929 Family Member of a U-1 Nonimmigrant Application for 1-941 $1,200 $1,200 $0 Entrepreneur Parole Application for Regional 1-956 $17,795 $47,695 $29,900 Center Designation VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Percent Chan~e 30% 0% 101% 35% 59% 19% 18% 46% 45% 154% 19%/-40% 57% 17% 0% 168% EP04JA23.076</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 526 527 Table 29: Proposed Fees bv Immieration Benefit Current Proposed Immigration Benefit Request Delta($) Fee Fee Regional Center Annual I-956G $3,035 $4,470 $1,435 Statement Application to File N-300 $270 $320 $50 Declaration oflntention Request for a Hearing on a N-336 Decision in Naturalization $700 $830 $130 Proceedings - Online Request for a Hearing on a N-336 Decision in Naturalization $700 $830 $130 Proceedings - Paper Application for $640 $760 $120 N-400 Naturalization - Online Application for N-400 $640 $760 $120 Naturalization - Paper Application for N-400 Naturalization - Reduced $320 $380 $60 Fee Application to Preserve N-470 Residence for $355 $420 $65 Naturalization Purposes Application for Replacement N-565 $555 $555 $0 Naturalization/Citizenship Document - Online Application for Replacement N-565 $555 $555 $0 Naturalization/Citizenship Document - Paper Application for Certificate N-600 $1,170 $1,385 $215 of Citizenship - Online Application for Certificate N-600 $1,170 $1,385 $215 of Citizenship - Paper Application for Citizenship N-600K $215 and Issuance of Certificate $1,170 $1,385 Under Section 322 - Online Application for Citizenship $1,170 $1,385 $215 N-600K and Issuance of Certificate Under Section 322 - Paper USCIS Immigrant Fee $220 $235 $15 H-lB Registration H-lB Registration Process $10 $215 $205 Tool Fee (OMB-64) Request for Certificate of $0 $330 $330 G-1566 Non-Existence Genealogy Index Search $65 $100 $35 G-1041 Request - Online VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 Percent Chanee 47% 19% 19% 19% 19% 19% 19% 18% 0% 0% 18% 18% 18% 18% 7% 2050% N/A 54% EP04JA23.077</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 528 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 29: Proposed Fees by Immigration Benefit Current Proposed Immigration Benefit Request Delta($) Fee Fee Genealogy Index Search G-1041 $65 $120 $55 Request - Paper Genealogy Records Request G-1041A $65 $240 $175 - Online Genealogy Records Request G-1041A $65 $260 $195 -Paper Biometric Services $85 $30 -$55 NIA $600 NIA Asylum Program Fee 318 The current fee for Form I–192 is $585 when filed with and processed by CBP. When filed with USCIS, the fee is $930. See 8 CFR 103.7(b)(1)(i)(P) (Oct. 1, 2020). 319 The $750 fee applies to ‘‘an applicant under the age of 14 years when [the application] is: (i) Submitted concurrently with the Form I–485 of a parent; (ii) The applicant is seeking to adjust status as a derivative of his or her parent; and (iii) The child’s application is based on a relationship to the same individual who is the basis for the child’s parent’s adjustment of status, or under the same legal authority as the parent.’’ See 8 CFR 103.7(b)(1)(i)(U)(2) (Oct. 1, 2020). 320 Currently there are two USCIS fees for Form I–881: $285 for individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)(1) (Oct. 1, 2020). EOIR has a separate $165 fee. DHS proposes no changes to the EOIR fee. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 volume meeting or exceeding the projections used in the fee model as described in section V.B.1.b of this preamble and the supporting documents. Many commenters on the FY 2020 Fee Rule stated that DHS was increasing USCIS fees to deter demand for immigration benefits and to discourage immigration in general. As stated earlier with regard to E.O. 14012, DHS is committed to encouraging access to immigration benefits. DHS appreciates the concerns of these earlier commenters, and sincerely hopes that this rulemaking does not discourage or impede individuals from obtaining the benefits for which they are eligible. This is true not only as a policy matter but as a practical necessity. If a USCIS fee rule were to cause a significant reduction in the demand for USCIS services in its administration of the legal immigration system, it would not meet DHS objectives and would cause USCIS serious fiscal problems. A large reduction in the number of immigration benefit filings on USCIS caused by the COVID–19 pandemic had enormous detrimental effects on the fiscal health of USCIS. Thus, taking any actions that could result in fewer requests being filed would be self-defeating to the purposes of a rule that adjusts USCIS fees.321 DHS also acknowledges that USCIS fees and fee policies affect the operations of organizations that assist applicants and petitioners with the preparation and submission of USCIS benefit requests. Assistance 321 DHS has considered, but not identified any direct impacts on any state government because it is not projected to increase or decrease the number of immigrants who enter or leave the United States, or result in a shift of immigrants between or among the states. To the extent that states, cities, counties or municipal governments (or organizations that they maintain) serve as advocacy organizations or submit immigration benefit requests to USCIS, the impacts on those groups are addressed in the relevant sections of this rule or the supporting documentation in the docket. PO 00000 Frm 00128 Fmt 4701 Sfmt 4702 85% 269% 300% -65% NIA organizations generally do not pay the fees that would be established by this rule (unless they independently apply to hire a foreign national employee), and aside from those organizations to which USCIS provides citizenship and integration grants, DHS has no role in regulating the functions of such groups. Nonetheless, this rule could indirectly affect the population and mix of the people who will want to avail themselves of the services of such organizations; thus, these groups may choose to obtain additional funding or alter their programs. As discussed earlier in this proposed rule, absent a fee increase, USCIS anticipates having insufficient resources to process its projected workload. Providing USCIS with the funding necessary to maintain adequate services would benefit our customers and stakeholders with more timely processing. After considering the impacts on the affected groups and the objectives of this proposed rule, DHS has decided to move forward with this rulemaking despite such groups choosing to adjust their business model to the proposed fees and policies.322 B. USCIS Fiscal Health As a fee-funded agency, USCIS was directly and adversely affected by the global pandemic.323 This contrasts with congressionally appropriated agencies, whose budgets are not directly impacted by fluctuations in fee revenue. To address its deteriorating fiscal situation when the pandemic compelled a temporary closure of USCIS offices and led to a plunge in filing and fee receipts, USCIS tightened its budget while continuing mission critical operations. 322 See section X.B.1 of this preamble for a discussion of the impacts of this rule on small entities. 323 See U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Deputy Director for Policy Statement on USCIS’ Fiscal Outlook, Available at https://www.uscis.gov/news/newsreleases/deputy-director-for-policy-statement-onuscis-fiscal-outlook (last viewed Jun 25, 2020). E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.078</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 A. Impact of Fees For some immigration benefits and services, fees are increasing substantially. DHS recognizes that this may be challenging for some customers and stakeholders, especially those that may be taking actions or making decisions with the expectation that USCIS fees remain unchanged or increase more modestly. DHS acknowledges that applicants and petitioners may face additional difficulties in paying the fees, and may be required to request a fee waiver, save money longer to afford the fees, or resort to credit cards or borrowing to pursue their or their family members’ immigration benefit. DHS has weighed these impacts and interests and considered alternatives to the proposals in this rule as described in this preamble. DHS examined each fee in this proposed rule and adjusted the fees computed by the fee model where appropriate and as discussed herein. It is DHS’s view that the fees proposed represent the best balance of access, affordability, and benefits to the public interest while providing USCIS with the funding necessary to maintain adequate services. DHS notes that the success of this rulemaking in funding USCIS services depends on the fee-paying request filing Percent Change Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules USCIS froze hiring and terminated contracts. See section V.A.2. of this preamble. When USCIS does not have the resources that it needs to meet its goals, processing times increase and the case processing backlog grows. Congress authorized an immediate increase in certain premium processing fees and gave USCIS wider authority to spend the premium processing revenue. See section III.D. of this preamble. More recently, USCIS received appropriations from Congress for processing workloads stemming from the agency backlog, refugee admissions, and Operation Allies Welcome. See section III.A. of this preamble. USCIS may continue to seek appropriations to supplement feefunded operations. If USCIS is certain to receive appropriations to fund the FY 2023 refugee program at the time of the final rule, then USCIS may reduce the estimated budget requirements funded by IEFA fees accordingly. USCIS will still face resource challenges just in keeping pace with incoming receipts if its fees do not recover full costs. khammond on DSKJM1Z7X2PROD with PROPOSALS2 C. Planned Increases in Efficiency USCIS is pursuing efficiencies that will streamline the adjudication of immigration benefits along with increasing adjudication capacity without adding additional costs. It is important to note that these efficiencies are not included in this fee rule; however, they will be reflected in future fee rules. USCIS expects that future customers will be able to see the benefits in more quickly adjudicated cases. DHS plans to address the challenge of the large volume of pending cases and the associated growth in processing times by focusing the efforts of the USCIS workforce to process pending cases and by using policy and operational improvements to reduce both the number of pending cases and overall processing times. The USCIS Stabilization Act requires a five-year plan to (1) establish electronic filing procedures for all applications and petitions for immigration benefits, (2) accept electronic payment of fees at all filing locations, (3) issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically, and (4) improve processing times for all immigration and naturalization benefit requests. See USCIS Stabilization Act, sec. 4103, Public Law 116–159 (Oct. 1, 2020). USCIS provided an implementation plan to Congress and has begun moving from a primarily paper-based adjudication and correspondence to an VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 electronic-based process.324 Throughout the implementation of the plan, USCIS expects that efficiencies through the use of electronic processing will improve future processing times. Since this is a five-year plan, the results of improving processing times may not be immediately evident as there are many interconnected processes associated with adjudicating immigration applications and petitions. As such, USCIS is not forecasting any financial efficiencies in this rule.325 There are multiple factors that contribute to calculating the number of staff needed to adjudicate projected receipt volume. One such factor is the utilization rate, the amount of time throughout a fiscal year that an officer spends doing core adjudicative work. Further, USCIS has broken down utilization rates to ‘‘manageable’’ and ‘‘un-manageable’’ time; un-manageable time includes weekends, Federal holidays, sick and annual leave, while manageable time includes meetings, reporting, training, and other nonadjudicative work an officer is required to complete. Since FY 2015, USCIS has seen utilization rates decrease to below 60 percent. Beginning in FY 2022, USCIS has set a target utilization rate of 60 percent. While this certainly provides for more adjudications without the need for additional staff, it is not factored into this rule because of a nearly year-long hiring freeze at USCIS, which ended in April of 2021. USCIS is working to staff back up. Given the efforts within USCIS to staff up for current vacancies, it is imprudent to account for efficiencies that USCIS may not realize, because a goal of this rule is to achieve full cost recovery. However, USCIS expects to achieve a 60 percent utilization rate as it reduces vacancies by hiring and training the new staff. While the volume of immigration benefit requests that USCIS receives has increased substantially in recent years, DHS recognizes that USCIS fees have increased at a higher rate than have the annual number of workload receipts that USCIS receives. In the short run, absent funding from other sources such as Congressional appropriations, USCIS must obtain the fees that will result 324 See USCIS, ‘‘Section 4103 Plan Pursuant to the Emergency Stopgap USCIS Stabilization Act: Fiscal Year 2021 Report to Congress’’ (Sep. 7, 2021), https://www.uscis.gov/sites/default/files/document/ reports/SIGNED-Section-4103-FY2021-Report-9-721.pdf (last reviewed Jan. 19, 2022). 325 If USCIS is able to clearly identify reductions in the costs of USCIS to be recovered under this rule between the proposed and final rule, DHS may consider those cost reductions to either reduce the proposed fees, or certain fees based on policy considerations, in the final rule. PO 00000 Frm 00129 Fmt 4701 Sfmt 4702 529 from this proposed rule to maintain an acceptable level of service. In the longer term, USCIS is implementing several measures that are intended to assist in increasing efficiency and reducing costs. USCIS has examined our processes and begun making changes to improve efficiency and allow officers to devote more time to work that requires their expertise and provides the greatest value to the public. For example, USCIS has taken the following actions: • Made interviews more efficient and effective by ensuring we are interviewing cases only where an interview will add appreciative value to the adjudication, and relying on officer judgment to decide when an interview is necessary to determine eligibility and admissibility and should not be waived. • Eliminated the need for individuals who have applied for a change of status (COS) to F–1 student to apply to change or extend their nonimmigrant status while their initial F–1 COS application is pending.326 • Suspended the biometrics submission requirement for certain applicants filing Form I–539, Application To Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H–4, L–2, and E nonimmigrant status.327 • Allowed fingerprint and photograph reuse while ASC services and/or operations were at reduced capacity as a result of the COVID–19 pandemic and when there was no need for an in-person identity verification at an ASC.328 • Extended the time that receipt notices can be used to show evidence of status from 18 months to 24 months for petitioners who properly file Form I– 751, Petition to Remove Conditions on Residence, or Form I–829, Petition by 326 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, Applicants for Change of Status to F–1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’, https://www.uscis.gov/news/alerts/applicants-forchange-of-status-to-f-1-student-no-longer-need-tosubmit-subsequent-applications-to (last viewed Dec 1, 2021). 327 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, USCIS Temporarily Suspends Biometrics Requirement for Certain Form I–539 Applicants, https://www.uscis.gov/news/ alerts/uscis-temporarily-suspends-biometricsrequirement-for-certain-form-i-539-applicants (last viewed Dec 1, 2021). 328 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, USCIS to Continue Processing Applications for Employment Authorization Extension Requests Despite Application Support Center Closures, https:// www.uscis.gov/news/alerts/uscis-to-continueprocessing-applications-for-employmentauthorization-extension-requests-despite (last viewed Dec 1, 2021). E:\FR\FM\04JAP2.SGM 04JAP2 530 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 Investor to Remove Conditions on Permanent Resident Status.329 • Returned to adjudicating asylum workload on a last-in-first-out basis.330 In addition, USCIS has transitioned non-adjudicative work from adjudicators to other staff, has centralized the delivery of information services through the policies and processes in place to allow USCIS Contact Center, and is leveraging electronic processing and automation. Applicants, petitioners, and requestors also can track the status of their immigration benefit requests online by using their receipt number or by creating an online account at https:// uscis.gov/casestatus. Applicants may make an ‘‘outside normal processing time’’ case inquiry for any benefit request pending longer than the time listed for the high end of the range by submitting a service request online at https://egov.uscis.gov/e-request/ or calling the USCIS Contact Center at 1– 800–375–5283. USCIS expects to improve the user experience as it continues to transition to online filing and electronic processing of immigration applications and petitions. With a new personcentric electronic case processing environment, USCIS will possess the data necessary to provide near-real-time processing updates on the status of a case and the time that has elapsed between actions for each individual case. This provides greater transparency to the public on how long it will take to process each case effective as it moves from stage to stage (for example, biometrics submission, interview, decision). In addition, USCIS has adjusted how it calculates and posts processing time information to improve the timeliness of such postings, and to achieve greater transparency. USCIS 329 U.S. Citizenship and Immigr. Servs., U.S. Dep’t of Homeland Security, USCIS Extends Evidence of Status for Conditional Permanent Residents to 24 Months with Pending Form I–751 or Form I–829, https://www.uscis.gov/newsroom/ alerts/uscis-extends-evidence-of-status-forconditional-permanent-residents-to-24-monthswith-pending-form (last viewed Dec 1, 2021). 330 USCIS, USCIS to Take Action to Address Asylum Backlog, available at https://www.uscis.gov/ news/news-releases/uscis-take-action-addressasylum-backlog (last updated Feb. 2, 2018). See section III.B of this preamble for a discussion of the FY 2022 appropriation for backlog reduction. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 will continue to provide processing times in an accurate and transparent fashion. Finally, as discussed in section V.A.2.b., DHS proposes to fund with IEFA non-premium funds 1,127 staff positions currently supported by premium processing funds. Realigning the cost of these staff to non-premium funds will free up an equivalent amount of premium processing funding for use by USCIS as it pursues additional investments in its online filing and electronic processing capabilities. Furthermore, these premium processing funds also may fund additional staff for backlog reduction efforts, which may result in reduced backlog sizes and decreased processing times. X. Statutory and Regulatory Requirements A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects, distributive impacts, and equity). E.O. 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), within the Office of Management and Budget (OMB), has designated this proposed rule a significant regulatory action that is economically significant under section 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation. The fee adjustments, as well as changes to the forms and fee structures used by USCIS, would result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2023 through FY 2032), DHS estimates the annualized net costs to the public would be $532,379,138 discounted at 3- and 7-percent. Estimated total net costs over 10 years would be $4,541,302,033 discounted at PO 00000 Frm 00130 Fmt 4701 Sfmt 4702 3-percent and $3,739,208,286 discounted at 7-percent. The proposed changes in this rule would also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/ petitioners include simplification of the fee payment process for some forms, elimination of the $30 returned check fee, USCIS’ expansion of the electronic filing system to include more forms, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens. Fee increases and other changes in this proposed rule would result in annualized transfer payments from applicants/petitioners to USCIS of approximately $1,612,133,742 discounted at both 3-percent and 7percent. The total 10-year transfer payments from applicants/petitioners to USCIS of approximately $13,751,827,819 at a 3-percent discount rate and $11,322,952,792 at a 7-percent discount rate. Fee reductions and exemptions in this proposed rule would result in annualized transfer payments from USCIS to applicants/petitioners of approximately $116,372,429 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from USCIS to applicants/petitioners would be $992,680,424 at a 3-percent discount rate and $817,351,244 at a 7-percent discount rate. The annualized transfer payments from the Department of Defense (DoD) to USCIS would be approximately $222,145 at 3- and 7-percent discount rates. The total 10-year transfer payments from DoD to USCIS would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-percent discount rate. These costs, transfers, and cost savings (qualitative benefits) are briefly described below in Table 30, and in more detail in a separate Regulatory Impact Analysis. BILLING CODE 9111–97–P E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 531 Table 30. Summary of Proposed Provisions and Other Fee Adjustments - Costs, Cost Savings, Transfer Payments and Benefits 1. Dishonored Check Representment Requirement, Fee Payment Method, and Non-refundability Description of Change Estimated Annual Costs and Transfer Payments Estimated Annual Cost Savings and Benefits • DHS proposes that if a check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, USCIS will resubmit the payment to the remitter institution one time. Quantitative: Applicants- Quantitative: Applicants - • Transfer payments from applicants/petitioners to USCIS of approximately $546,286 (annual average amount USCIS refunds to applicant's/petitioner's) due to non-refundable fees. • None. khammond on DSKJM1Z7X2PROD with PROPOSALS2 • If the remitter institution returns the instrument used to pay a fee as VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00131 Fmt 4701 Qualitative: Applicants • None. Sfmt 4725 E:\FR\FM\04JAP2.SGM Qualitative: Applicants • None. DHS/USCIS• Clarifying dishonored fee check representment nonrefundability policies, 04JAP2 EP04JA23.079</GPH> Proposed Rule Provisions 532 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules unpayable, USCIS will re-deposit the DHS/USCISfinancial instrument ifit is returned for • None. insufficient funds. If it is returned a second time, USCTS will reject the filing. Checks returned for another reason will not be re-deposited and such filings will be rejected immediately. • In addition, DHS may reject a request that is accompanied by a check that is dated more than 365 days before the receipt date. limiting the age of checks to be presented and limiting payment options would reduce administrative burdens and fee processing errors for USCTS. • USCIS will be able to invoice the responsible party (applicant, petitioner, or requestor) and pursue collection of Ute unpaid fees when banks that issue credit cards rescind payment. • USCIS will lose fewer credit card disputes. • DHS is also proposing to codify its authority to limit payment options so that it may require that certain fees must be paid using a specific payment method. • DHS is also proposing to clarify that fees are nonrefundable regardless of Ute result of the request or how much time the request requires to be adjudicated. 2. VerDate Sep<11>2014 Eliminate $30 Returned Check Fee 20:56 Jan 03, 2023 Jkt 259001 • USCIS is proposing to elinrinate the $30 charge for PO 00000 Frm 00132 Fmt 4701 Quantitative: Applicants- Quantitative: Applicants - • None. Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.080</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 • DHS proposes to provide Urat fees paid to USCIS using a credit card cannot be disputed. Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules dishonored payments. • None. • DHS estimates the annual cost savings to applicants/petitioners would be $356,370. DHS/USCIS- Qualitative: • There may be an increase in insufficient payments by applicants because the $30 fee may serve as a deterrent for submitting a deficient payment. Applicants - Qualitative: Applicants - 533 • The current $30 charge and the potential of having a benefit request rejected encourages applicants to provide the correct filing fees when submitting an application or petition. • Applicants who submit bad checks will no longer have to pay a fee. DHS/USCIS• This proposed change will provide additional cost savings to USCIS as it spends more than $30 to collect the $30 returned payment charges. USCIS hires a financial service provider to provide fee collection services to pursue and collect the $30 fee. VerDate Sep<11>2014 Changes to Biometric Services Fee 20:56 Jan 03, 2023 Jkt 259001 • For nearly all benefit types, DHS proposes to incorporate the biometric services cost into the underlying immigration benefit request fees for which biometric services are applicable. PO 00000 Frm 00133 Fmt 4701 Quantitative: Applicants- Quantitative: Applicants - • As a result of the $55 reduction in the biometric services fee, TPS, and Executive Office for Immigration Review (EOIR) an agency within the Department of Justice, applicants will experience a total of $9,447,570 in reduced fees annually. This • None. Sfmt 4725 E:\FR\FM\04JAP2.SGM Qualitative: Applicants • lncmpornting the biometric services fee into the underlying benefit request filing fee would benefit applicants by 04JAP2 EP04JA23.081</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 3. 534 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules represents transfer payments from USCIS to the fee payers as USCTS would now incur the indirect costs of providing the biometric services. Qualitative: Applicants • None. DHS/USCIS• Eliminating the separate payment of the biometric services fee would decrease the adrninislralive burdens required to process both a filing fee and biometric services fee for a single benefit request. khammond on DSKJM1Z7X2PROD with PROPOSALS2 4. Naturalization and Citizenship Related Forms • DHS proposes to limit the increase of the fee to $760 for FormN-400, Application for Naturalization, to partially recover the full cost of adjudicating the Form N-400 while still promoting naturalization and integration • DHS is also proposing to keep the reduced fee option of $380 for naturalization applicants with family incomes not exceeding 200percent of the Federal poverty guidelines (FPG). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00134 Fmt 4701 Quantitative: Applicants• Increase in fees to the following naturalization and citizenship related forms: Forms N-300, N336, N-400, N-470, N600 and N-600K. This would result in transfer payments from the feepaying applicants to USCIS of $46,991,905 annually. simplifying the payment process. • This measure may also reduce the probability of applicants subrnilling incorrect fees and consequently have their benefit requests rejected for failure to include a separate biometric services fee. DHS/USCIS• Eliminating the separate payment of the biometric services fee would decrease the adrninislrative burdens required to process both a filing fee and biometric services fee for a single benefit request. Qualitative: Applicants- • Limited fee increase allows more residents, especially those with financial and income constraints to seek citizenship. Qualitative: Applicants - • None DHS/USCIS• Transfer payments from DoD to USCIS of $222,145 annually for Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.082</GPH> • DHS proposes to retain a separate biometric services fee of $30 for initial applications and reregistrations for Temporary Protected Status (TPS). Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • DHS is keeping the existing statutory fee exemptions for military members and veterans who file a Form N-400, Application for Naturalization and FormN-600, Application for Certificate of Citizenship, under the military naturalization provisions. 535 N-400 (military only) reimbursements. • The proposal to expand eligibility to request reduced fees would benefit qualified applicants. DRS estimates that the fee decrease would result in transfer payments from USCTS to Form T-942 approved applicants of $103,225 per year. • Expanding the population of applicants using Form 1-942 would increase the administrative burden on the agency to process these forms. Fees for Filing Online • In recognition of the lower marginal costs to USCIS from online filling, DHS intends to lower fees for online filing of immigration benefit requests for which both paper and online filing options are available. The forms include: Quantitative: Petitioners • Transfer payments of $52,954,120 annnally from Forms 1-90, 1-130, 1-539 and 1-765 Online filers to USCIS. DHS/USCTS• None. • Form 1-90, Application to Replace Permanent Resident Card • Form 1-130, Petition for Alien Relative khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Form 1-539, Application to Extend/Change Nonimmigrnnt Status Qualitative: Petitioners • None. DHS/USCIS- 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4725 Online filing of Forms 1-90, 1-130, 1-539 and I-765 would provide estimated annual cost savings of$29,974,655 to applicants. The societal cost savings would come about if more people opted to apply online as a result of the fee differential between online and paper tlrat is introduced in lhis proposed rule. Qualitative: Petitioners• Encourages electronic processing and adjudications which helps streamline USCIS processes. This could reduce costs and could speed adjudication of cases. • None. • Form T-765, Application for Employment Authori7ation VerDate Sep<11>2014 Quantitative: Petitioners- E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.083</GPH> 5. 536 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules DHS/USCIS- • Form N-336, Request for a Hearing on a Decision in Naturcllization Proceedings (Under Section 336 of the INA) • USCIS will save in reduced intake and storage costs at the USCIS lockbox or other intake facilities. • Decrease the risk of mishandled, misplaced, damaged files or lost paper files because electronic records would not be physically moved around to different adjudication offices. • Form N-400, Application for Naturalization • Form N-565, Application for Replacement Naturalization/Citiz enship Document • Fonn N-600, Application for Certificate of Citizenship • Increased access to administrative records. USCIS could easily redistribute electronic files among adjudications offices located in different regions, for better management of workload activities. • Form N-600K, Application for Citizenship and Issuance of Certificate U ndcr Section322 • Form G-1041, Genealogy Index Search Request • Form G-l041A, Genealogy Records Request VerDate Sep<11>2014 Form 1-485, Application to Register Permanent Residence or Adjust Status 20:56 Jan 03, 2023 Jkt 259001 • DRS is proposing separate filing fees for applicants filing Forml-765, Application for Employment Authoriz.ation, and Fonnl-131, Application for Travel Documentation concurrently with Fonnl-485, Application to Register Permanent Residence or Adjust PO 00000 Frm 00136 Fmt 4701 Quantitative: Applicants• This increase in the Form 1-485 fee would result in approximately $22,860,810 in transfer payments annually from applicants filing T-485 (only) to USCIS. • DHS estimates that requiring separate filing fees for applicants filing 1-765 andl-131 interim benefits with Form T- Sfmt 4725 E:\FR\FM\04JAP2.SGM Quantitative: Applicants• Not estimated. Qualitative: Applicants • None. DHS/USCIS• DRS believes that unbundling the fee for Form 1-485 from Fonns 1-131 and 1-765 would reduce the burden of 04JAP2 EP04JA23.084</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 6. Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Status or after USCIS accepts their Form 1-485 and w bile it is still pending. • DHS is proposing that all applicants, including children under the age of 14 years concurrently filing Form 1-485 with a parent, pay the full fee. 485 would result in transfer payments from applicants to USClS of $597,439,512 annually. 537 administering separate fees and better reflect the cost of adjudication • DHS estimates transfer payments from applicants to USCIS of $19,339,200 annually for children under the age of 14 years concurrently filing Form 1-485 with a parent. Qualitative: Applicants • None. Form I-131A, Application for Travel Document (Carrier Documentation) Changes • DHS proposes to separate the fee for Forml-131A, Application for Carrier Documentation, from other travel document fees. Quantitative: Applicants• None. Qualitative: Applicants • None. Qualitative: Applicants • None. DHS/USCIS• None. khammond on DSKJM1Z7X2PROD with PROPOSALS2 8. VerDate Sep<11>2014 Separate Fees for Form 1-129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification and Limit Petitions Where Multiple Beneficiaries are Permitted to 25 Named Beneficiaries per Petition 20:56 Jan 03, 2023 Jkt 259001 • DHS proposes to charge different fees for Form 1-129, Petitioner for a Nonimmigrant Worker based on the nonimmigrant classification being requested in the petition, the number ofbeneficiaries on the petition and in some cases, according to PO 00000 Frm 00137 Fmt 4701 Quantitative: Applicants • The annual increase in transfer payments from Form 1-129 visa classification petitions to USCIS is expected to be $273,101,915. • The total costs of the Asylum Program fee to petitioners would be DHS/USCIS• Allows USCIS to assess the cost of providing services for this immigration benefit and propose better aligned fees in future fee reviews Quantitative: Applicants • None. DHS/USCTS• None. Qualitative: Applicants • None. DHS/USCIS- Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.085</GPH> 7. DHS/USCIS• None. Quantitative: Applicants• None. 538 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules whether the petition includes named or unnamed beneficiaries. approximately $574,884,600 annually. DHS/USCIS• Not estimated. • DHS also proposes to limit to 25 the number of named beneficiaries that may be included on a single petition for H-2A, H-2B, 0, H3,P, QandR workers. Qualitative: Applicants • None. DHS/USCIS• None. • DHS is also proposing a new Asylum Program fee of $600 to be paid by employers who file either a Fonn 1-129, Petition for a Noninunigrant Worker, orFonnl140, Inunigrant Petition for Alien Worker. 9. Adjustments to Premium Processing • DHS is proposing to change the premium processing timeframe from 15 calendar days to 15 business days for the inunigration benefit request types with a premium processing service. Quantitative: Applicants • None. DHS/USCIS• None. Qualitative: Applicants • None. DHS/USCIS- • Limiting the number of named beneficiaries to 25 per petition simplifies and optimizes the adjudication of these petitions, which can lead to reduced average processing times for a petition. Qualitative: Applicants • The additional days would increase the time frame to adjudicate which in tum might reduce the refunds issued by USCIS and thereby increase the applications adjudicated DHS/USCIS• The additional days would increase the time frame to adjudicate which in tum might reduce the refunds issued by USCIS. • USCIS would have additional time to process petitions which would allow USCIS to avoid VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.086</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 • None. • A benefit of the different fees for the Fonnl-129 classifications is that it would allow USCIS to further refine its fee model and better reflect the cost to adjudicate each specific noninunigrant classification. Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 539 suspending premium processing service as often as has recently been required when premium processing request volumes arc high. • This change would enable USCIS to make premium processing more consistently available and expand this service to the newly designated classifications and categories allowed by the USCIS Stabilization Act. DHS/USCIS• None. Qualitative: Applicants • None. DHS/USCIS• None. • DHS is also proposing to permit combined payments of the premium processing service fee with the remittance of other filing fees. khammond on DSKJM1Z7X2PROD with PROPOSALS2 10. lntercountry Adoptions VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • DHS proposes to clarify and align regulations with current pmctice regarding when prospective adoptive parents are not required to pay the Form 1-600 or Form PO 00000 Frm 00139 Fmt 4701 Quantitative: Applicants• DHS estimates that the filing fee and the time to complete and submit Form l-600A/l-600 Supplement 3 would cost$ 215,590 annually. Sfmt 4725 E:\FR\FM\04JAP2.SGM Qualitative: Applicants and DHS/USCIS -• DHS has found in its application of the new premium processing regulations (87 FR 18260)thatmandating a separate payment in all premium processing submissions may impose unnecessary burdens on petitioners, applicants, and DHS. Hence, not 1nandating a separate payment in all premium processing submissions reduces unnecessary burdens on petitioners, applicants, and DHS. Quantitative: Applicants • None. Qualitative: Applicants • Limiting the fee increase helps to 04JAP2 EP04JA23.087</GPH> • Currently, DHS mandates separate payments to request premium processing services. Instead of mandating the sepamte payments, DHS proposes that USCIS may require premium processing service fees be paid in a separate remittance from other filing fees. Quantitative: Applicants • None. 540 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 1-800 filing fee for multiple Form 1-600 or Form 1-800 petitions. • DHS is altering the validity period for a Forml-600A approval in an orphan case from 18 to 15 months to remove inconsistencies between Form I600A approval periods and validity of the Federnl Bureau of Investigation (FBI) background check. • The increase to the current fees for the existing adoption-related forms would result in transfer payments from applicants to USCIS of approximately $ 246,060 annually. Qualitative: Applicants • None. DHS/USCIS• None. reduce the fee burdens on adoptive families by covering some of the costs attributable to the adjudication of certain adoptionrelated petitions and applications. • The unifonn 15-month validity period will also alleviate the burden on prospective adoptive parents and adoption service providers to monitor multiple expirntion dates. • These proposed changes also clarify the process for applicants who would like to request an extension of Form I600A/I-600 and/or certain types of updates or changes to their approval. • DHS is also proposing to create a new form called Form I-600A/I-600 Supplement 3, Request for Action on Approved Form T-600 A/T-600. • Accepting the Form I800A Supplement 3 extension requests will make subsequent suitability and eligibility adjudication process faster, for prospective adoptive parents seeking an extension of their Form I-800A approval. • Standardizes USCIS process and provides for the ability to collect a fee. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00140 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.088</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 DHS/USCIS- Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 541 • Improve and align the USCIS adjudication and approval processes for adoptions of children from countries that are party to the Hague Adoption Convention and from countries that are not. 11. Immigrant Investors • DHS proposes to increase fees across the forms including Forms 1-526/1526E,331 1-829, I956 (formerly I924), l-956G (formerly 1-924A) and T-956F associated with the EB-5 program. Quantitative: Applicants• Annual transfer payments from EB-5 investors and regional centers to USCIS would be approximately $61,841,070 for Form I526/526E, $18,751,425 for 1-829, $5,681,000 for 1-956, and $1,173,830 forl-956G. Quantitative: Applicants• None. Qualitative: Applicants • None. DHS/USCIS• None. Qualitative: Applicants • None. DHS/USCIS• None. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • DHS proposes to revise genealogy regulations to encourage requestors to use the online portal to submit electronic versions of Form G1041. Quantitative: Applicants• Annual transfer payments from fee paying applicants of Forms G-1041, G1041A and G-1566 to USCIS of$1,198,890. • DHS also proposes to change the index search request process so that USCIS may provide requesters with digital records via email in response to Qualitative: Applicants • None. PO 00000 Frm 00141 Fmt 4701 DHS/USCIS• None. Sfmt 4725 E:\FR\FM\04JAP2.SGM Quantitative: Applicants• None. Qualitative: Applicants • Streamlining the genealogy search and records request process increases accuracy due to reduced human error from manual data entry. DHS/USCJS• Reduce costs for mailing, records processing, and storage 04JAP2 EP04JA23.089</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 12. Changes to Genealogy Search and Records Requests Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules the initial search request. costs because electronic versions of records requests will reduce the administrative burden onUSCIS. • DHS intends to lower the proposed fees for the onlinc filing of Forms G1041 and G-1041A to reflect the lower marginal costs to USCIS from online filing. • DHS is proposing to charge a fee for requests for a Certificate of NonExistence. • DHS proposes to adjust fees for the fo11owing immigration benefit requests it adjudicates with U.S. Customs and Border Protection (CBP): Forml-192, Application for Advance Permission to Enter as a Nonimmigrant Forml-193, Application for Waiver of Passport and/or Visa Forml-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal Form l-824, Application for Action on an Approved Application or Petition. khammond on DSKJM1Z7X2PROD with PROPOSALS2 13. Fees Shared by CBP andUSCIS 14. Form 1-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 • DHS is combining the current multiple fees charged for an individual or family into a single fee for each filing of Form PO 00000 Frm 00142 Fmt 4701 • Streamlining the genealogy search and records request process increases accuracy. Quantitative: Applicants• Annual transfer payments of $12,705,970 from fee payers to USCIS. Qualitative: Applicants • None. DHS/USCIS• None. Quantitative: Applicants• Transfer payments of $1,529 annually from I881 individual filers to USCIS. Sfmt 4725 E:\FR\FM\04JAP2.SGM Quantitative: Applicants• None. Qualitative: Applicants • A single fee for each shared form would reduce confusion for individuals interacting with CBP and USCIS. DHS/USCIS• None. Quantitative: Applicants• None. Qualitative: 04JAP2 EP04JA23.090</GPH> 542 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 1-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105100, the Nicaraguan Adjustment and Central American Relief Act [NACARA]). • $184 annually in transfer payments from USCIS to 1-881 family applicants since this fee is less than the cost to adjudicate the application Qualitative: Applicants • None. DHS/USCIS• None. 15. Fee Waivers • DHS proposes that fee waiver requests must be submitted only on the form prescribed by USCIS, which is the Request for Fee Waiver (Form I912). khammond on DSKJM1Z7X2PROD with PROPOSALS2 • Victims of Severe Form of Trafficking (T Nonimmigrants) VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00143 Fmt 4701 • A Single Form 1-881 fee may help reduce the administrative and adjudication process for USCIS more efficient. Quantitative: Applicants • None. DHS/USCIS• None. DHS/USCIS• None. DHS/USCIS• None. • DHS is proposing to provide fee exemptions for additional benefit requests filed by the following humanitarian-based immigration beneficiaries: 332 DHS/USCIS• Combining the two Immigration Examinations Fee Account (IEF A) fees into a single fee will streamline the revenue collections and reporting. Quantitative: Applicants • None. Qualitative: Applicants • None. 16. Fee Exemptions Applicants • None. Quantitative: Applicants• Transfer payment of approximately $106,821,450 annually from USCIS to the public. Qualitative: Applicants • None. DHS/USCIS• More simplified and streamlined system to process fee waivers. Quantitative: Applicants• Average of $12,390,027 in cost savings to the public for no longer having to complete and submit Forml-912. Qualitative: Applicants • None. Qualitative: Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.091</GPH> Law 105-100 [NACARA]) 543 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules • Victims of • • • • • • • • khammond on DSKJM1Z7X2PROD with PROPOSALS2 • • • VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 A pplicants - Qualifying Criminal Activity (U Nonimmigrants) VAWAFormI-360 Self-Petitioners and Derivatives Conditional Permanent Residents Filing a Waiver of the Joint Filing Requirement Based on Battery or Extreme Cmelty Abused Spouses and Children Adjusting Status under CAA andHRIFA Abused Spouses and Children Seeking Benefits under NACARA Abused Spouses and Children of LPRs or U.S. Citizens under INA Section 240A(b)(2) Special Immigrant Afghan or Iraqi Translators or Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S. Government, or Afghan Nationals Employed by or on Behalf of the U.S. Government or Employed by the ISAF (Sil and SI2) Special Immigrant Juveniles (SIJs) Temporary Protected Status (TPS) Asylees Refugees Person Who Served Honorably on Active Duty in The U.S. Armed Forces Filing Under INA Section 10 l(A)(27)(K) PO 00000 Frm 00144 Fmt 4701 DHS/USCIS• DHS expects a decrease in administrative burden associated with the processing of the Form I-912 (fee waiver) for categories of requestors that would no longer require a fee waiver because they will be fee exempt Sfmt 4725 E:\FR\FM\04JAP2.SGM • Individuals who are unable to afford immigration benefit request fees would benefit from filing a request with no fees. DHS/lJSCIS • None. 04JAP2 EP04JA23.092</GPH> 544 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules DHS proposes to increase fees for the following forms: 17. Additional Fee Adjustments • • • • • • • • • • • • • • • • • • 18. Adjusting USCIS Fees for Inflation 1-90 (paper) 1-102 1-130 (paper) 1-131 1-140 1-601 1-612 l-290B 1-360 1-539 (paper) l-601A l-687/1-690/1-694 1-751 1-765 (paper) 1-817 1-910 1-929 DHS proposes to use the CPI-U as the inflation index for fee adjustments between comprehensive fee rules. The actual impacts of such adjustments would be analyzed in a future rule should DHS exercise this proposed authority. Quantitative: Applicants• Transfer payment from fee payers to USCIS of approximately $674,215,570 annually. Qualitative: Applicants • None. 545 Quantitative: Applicants• None. Qualitative: Applicants • None. DHS/USCIS• None. Quantitative: Applicants• None. Qualitative: Applicants • None. Qualitative: DHS/USCIS- Qualitative: Applicants • None. • Allows DHS to publish timely fee schedule adjustments to insure the real value of USCIS fee revenue dollars against future inflation. DHS/USCIS• None. Source: USCIS analysis. DHS has prepared a full analysis according to E.O. 12866 and E.O. 13563, which can be found in the docket for this rulemaking or by searching for RIN 1615–AC18 on www.regulations.gov. In addition to the impacts summarized above, Table 31 presents the accounting statement as required by Circular A– 4.333 331 Combines both Forms I–526, Immigrant Petition by Standalone Investor and I–526E, Immigrant Petition by Regional Center Investor. USCIS revised Form I–526 and created Form I–526E as a result of the EB–5 Reform and Integrity Act of 2022. 332 These fee exemptions do not impact eligibility for any particular form or when an individual may file the form. They are in addition to the forms listed under proposed 8 CFR 106.2 for which DHS proposes to codify that there is no fee. 333 OMB Circular A–4 is available at https:// www.whitehouse.gov/wp-content/uploads/legacy_ drupal_files/omb/circulars/A4/a-4.pdf (last viewed on September 22, 2022). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00145 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.093</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Note: The dollar amounts in this table are undiscounted. 546 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules OCable 31: 0MB A-4 Accounting Statement($ in millions, 2021; period of the analysis: FY 2023 through FY ~032) Category Primary Estimate Minimum Estimate Maximum Source Estimate Citation BENEFITS Annualized Monetized Benefits NIA NIA NIA over 10 years NIA Annualized quantified, but unmonetized, benefits Unquantified Benefits NIA NIA The proposed changes in this rule would provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services which allows for better aligned fees. Using the CPI-U as the inflation index for fee schedule adjustments between comprehensive USCIS fee rules would allow DHS to publish timely fee adjustments that insure the real value of USCIS fee revenue dollars against future inflation Regulatory Impact Analysis (RIA) The primary benefits to applicants/petitioners include the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, expansion of the electronic filing system to include Form G-1041 and Form G-104 lA, reduced re-applications for premium processing and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens. COSTS Annualized monetized costs over 10 years Annualized quantified, but unmonetized, costs Qualitative (unquantified) costs (3%and 7%) RIA $532 NIA !Eliminating the separate payment of the biometric services fee would klecrease the administrative burdens required to process both a filing fee and biometric services fee for a single benefit request. IDHS also expects a decrease in administrative burden associated with the ~rocessing of the Form 1-912 (fee waiver) for categories of requestors that M'Ould no longer require a fee waiver because they will be fee exempt. !Expanding the population of applicants using Form 1-942 (reduced fee !request) would increase the administrative burden on the agency to process ~esefonns. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00146 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.094</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 TRANSFERS 547 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Annualized monetized transfers: From the applicants/ petitioners to USCIS Annualized monetized transfers: From USCIS to applicants/petitioners Annualized monetized transfers: From DoD to USCIS RIA (3%and 7%) $1,612 RIA (3%and 7%) $116 (3%and 7%) RIA $0.22 Effects Miscellaneous Analyses/Category Effects on state, local, and/or tribal governments Effects on small businesses None Preamble DHS does not believe that the increase in fees proposed in this rule would have a significant economic impact on a substantial number of small entities that file 1-140, 1-910, or 1-360. Initial Regulatory Flexibility k\nalysis (IRFA) and Small Entity Analysis (SEA) DHS does not have sufficient data on the revenue collected through administrative fees by regional centers to definitively determine the economic impact on small entities that may file Form 1-956 (formerly I924) or Form l-956G (formerly l-924A). DHS also does not have sufficient data on the requestors that file genealogy forms, Forms G-1041 and G-1041A, to determine whether such filings were made by entities or individuals and thus is unable to determine if the fee increase for genealogy searches is likely to have a significant economic impact on a substantial number of small entities. Effects on wages None None Effects on Growth None None khammond on DSKJM1Z7X2PROD with PROPOSALS2 B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term ‘‘small entities’’ comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 governmental jurisdictions with populations of less than 50,000. DHS nonetheless welcomes comments regarding potential impacts on small entities, which DHS may consider as appropriate in a final rule. In addition, the courts have held that the RFA requires an agency to perform an initial regulatory flexibility analysis (IRFA) of small entity impacts only when a rule directly regulates small entities. Below is a summary of the Small Entity Analysis (SEA). The PO 00000 complete detailed SEA 334 is available in the rulemaking docket at https:// www.regulations.gov. Individuals, rather than small entities, submit the majority of immigration and naturalization benefit applications and petitions, but this proposed rule would affect entities that file and pay fees for certain immigration benefit requests. Consequently, there are six categories of USCIS benefits that are subject to a small entity analysis for this proposed rule: Petition for a Nonimmigrant 334 DHS, USCIS Small Entity Analysis (SEA) for the USCIS Fee Schedule Proposed Rule dated May 24, 2022. Frm 00147 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.095</GPH> BILLING CODE 9111–97–C 548 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Worker, Form I–129; Immigrant Petition for an Alien Worker, Form I–140; Civil Surgeon Designation, Form I–910; Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360; Genealogy Forms G–1041 and G–1041A, Index Search and Records Requests; and the Application for Regional Center Designation Under the Immigrant Investor Program, Form I–956, and the Regional Center Annual Statement, Form I–956GA. DHS does not believe that the increase in fees proposed in this rule would have a significant economic impact on a substantial number of small entities that file I–140, I–910, or I–360. DHS does not have sufficient data on the revenue collected through administrative fees by regional centers to definitively determine the economic impact on small entities that may file Form I–956 or Form I–956G. DHS also does not have sufficient data on the requestors that file genealogy forms, Forms G–1041 and G–1041A, to determine whether such filings were made by entities or individuals and, thus, is unable to determine if the fee increase for genealogy searches is likely to have a significant economic impact on a substantial number of small entities. DHS is publishing this IRFA to aid the public in commenting on the small entity impact of its proposed adjustment to the USCIS fee schedule. In particular, DHS requests information and data that would help to further assess the impact of the fee changes on the genealogy forms or the regional center forms on small entities. 1. Initial Regulatory Flexibility Analysis (IRFA) khammond on DSKJM1Z7X2PROD with PROPOSALS2 a. A Description of the Reasons Why the Action by the Agency Is Being Considered DHS proposes to adjust fees USCIS charges for certain immigration and naturalization benefits. DHS has determined that current fees would not recover the full costs of services provided. Adjustment to the fee schedule is necessary to recover costs and maintain adequate service. b. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule DHS’s objectives and legal authority for this proposed rule are discussed in the preamble. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 c. Description and, Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Would Apply As noted above, below is a summary of the Small Entity Analysis (SEA). The complete detailed SEA is available in the rulemaking docket at https:// www.regulations.gov. The SEA has a full analysis of all samples for each small entity form described below, in the Initial Regulatory Flexibility Act Analysis. Entities affected by this proposed rule are those that file and pay fees for certain immigration benefit applications and petitions on behalf of a foreign national. These applications include Form I–129, Petition for a Nonimmigrant Worker; Form I–140, Immigrant Petition for an Alien Worker; Form I–910, Civil Surgeon Designation; Form I–360, Petition for Amerasian, Widow(er), or Special Immigrant; Genealogy Forms G–1041 and G–1041A, Index Search and Records Requests; Form I–956 (formerly Form I–924), Application for Regional Center Designation Under the EB–5 Regional Pilot Program, and Form I–956G (formerly Form I–924A), Regional Center Annual Statement. Annual numeric estimates of the small entities impacted by this fee increase total (in parentheses): Form I–129 (75,269 entities), Form I–140 (17,417 entities), Form I–910 (382 entities), and Form I– 360 (465 entities).335 DHS was not able to determine the numbers of regional centers or genealogy requestors that would be considered small entities and; therefore, does not provide numeric estimates for Form I–956, Form I–956G, or Forms G–1041 and G–1041A.336 This rule applies to small entities, including businesses, non-profit organizations, and governmental jurisdictions filing for the above benefits. Forms I–129 and I–140 would see a number of industry clusters impacted by this rule (see Appendix A of the Small Entity Analysis (SEA) for a list of impacted industry codes for Forms I–129, I–140, I–910, and I–360). The fee for civil surgeon designation would apply to physicians requesting such designation. The fee for Amerasian, widow(er), or special immigrants would apply to any entity 335 Calculation: 86,715 Form I–129 * 86.8 percent = 75,269 small entities; 25,279 Form I–140 * 68.9 percent = 17,417 small entities; 428 Form I–910 * 89.3 percent = 382 small entities; 489 Form I–360 * 95.0 percent = 465 small entities. 336 Small entity estimates are calculated by multiplying the population (total annual receipts for the USCIS form) by the percentage of small entities, which are presented in subsequent sections of this analysis. PO 00000 Frm 00148 Fmt 4701 Sfmt 4702 petitioning on behalf of a religious worker. Finally, DHS is creating these new forms as stated above, as part of the EB–5 Reform and Integrity Act of 2022. Since Form I–956/I–956G will be new forms and historical data does not exist; therefore, DHS will use historical data of the previous Form I–924, Application for Regional Center Designation Under the Immigrant Investor Program and Form I–924A, Annual Certification of Regional Center as a proxy for the analysis. The Form I–956 would impact any entity seeking designation as a regional center under the Immigrant Investor Program or filing an amendment to an approved regional center application. Captured in the dataset for Form I–956 is also Form I– 956G, which regional centers must file annually to establish continued eligibility for regional center designation for each fiscal year. DHS does not have sufficient data on the requestors for the genealogy forms, Forms G–1041 and G–1041A, to determine if entities or individuals submitted these requests. DHS has previously determined that requests for historical records are usually made by individuals.337 If professional genealogists and researchers submitted such requests in the past, they did not identify themselves as commercial requestors and thus could not be segregated in the data. Genealogists typically advise clients on how to submit their own requests. For those who submit requests on behalf of clients, DHS does not know the extent to which they can pass along the fee increases to their individual clients. DHS assumes genealogists have access to a computer and the internet. DHS is unable to estimate the online number of index searches and records requests; however, some will receive a reduced fee and cost savings, by filing online. Therefore, DHS does not currently have sufficient data to definitively assess the estimate of small entities for these requests. 1. Petition for a Nonimmigrant Worker, Form I–129 Funding the Asylum Program With Employer Form I–129 by Visa Classification Petition Fees In this proposed rule, DHS proposes a new Asylum Program Fee of $600 be paid by any employers who file either a Form I–129, Petition for a Nonimmigrant Worker, or Form I–140, Immigrant Petition for Alien Worker. Proposed 8 CFR 106.2(c)(13). DHS has determined that the Asylum Program 337 See Establishment of a Genealogy Program, 73 FR 28026 (May 15, 2008). E:\FR\FM\04JAP2.SGM 04JAP2 549 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers applications/petitioners. DHS determined the Asylum Program Fee by calculating the amount that would need to be added to the fees for Form I–129 and Form I–140 to collect the Asylum Processing IFR estimated annual costs.338 The Asylum Program Fee may be used to fund part of the costs of administering the entire asylum program and would be due in addition to the fee those petitioners would pay under USCIS’ standard costing and fee associated with processing the benefit requests for the various categories of nonimmigrant worker. The current base filing fee for Form I–129 is $460. DHS proposes separate H–2A and H–2B fees for petitions with named workers and unnamed workers. In Table 32a, as stated above, the Asylum Program Fee of $600 would be included with each Form 1–129 Petition for a Nonimmigrant Worker classification. It would apply to all feepaying receipts for Forms I–129, I– 129CW, and I–140. For example, it would apply to all initial petitions, changes of status, and extensions of stay that use Form I–129. collection methodologies for their Form I–129 and Form I–140 benefit requests. DHS is not separating Form I–129 into multiple forms in this proposed rule as it did in the 2020 fee rule, but it is taking that action separately as a revision of the currently approved Form I–129 information collection under the Paperwork Reduction Act. In this proposed rule, DHS proposes different fees for Form I–129 based on the nonimmigrant classification being requested in the petition, the number of beneficiaries on the petition, and, in some cases, according to whether the petition includes named or unnamed beneficiaries. The proposed fees are calculated to better reflect the costs BILLING CODE 9111–9–P Table 32a. USCIS Fees for Form 1-129 Petition for Nonimmie:rant Worker by Classification for FY 2022/2023 Visa Classification Immigration Benefit Request Current Fee Proposed Fee H-lB H-2A- Named Beneficiaries $460 $460 $780 $1,090 H-2B - Named Beneficiaries $460 $1,080 $600 $1,680 H-2A- Unnamed Beneficiaries $460 $530 $600 $1,130 H-2B - Unnamed Beneficiaries $460 $580 $600 $1,180 0-1/0-2 $460 $1.055 $600 $1,655 L- lA/L-lB/LZ Blanket $460 $1,385 $600 $1,985 CW, H-3, E, TN, Q, P, and R $460 $1,015 $600 $1,615 Asylum Proe;ram Fee $600 $600 Total Proposed Fee $1,380/$1 595 339 $1,690 Source: See sections 11.C., Summary of Current and Proposed Fees, and V.B.4., Funding the Asylum Program with Employer Petition Fees of the NPRM, of this preamble. For petitioners filing Form I–129, DHS proposes increasing the fee filed for all worker types. The fee adjustments and percentage increases are summarized, shown in Table 32b. For petitioners filing Form I–129, DHS proposes increasing the fee filed for all worker types. The fee adjustments and percentage increases are summarized below. H–1B classification cap-subject petitions will include a $215 registration fee, an increase of $205 from the original $10 fee. Non-cap subject petitions (e.g., extension petitions or cap-exempt filer petitions) would not have to pay the registration fee. This registration fee is added to the fee increase and results in an overall increase for cap-subject H–1B classification petitions of $920 ($215 + $705). 338 DHS acknowledges that, by using the middle of the range of costs, if actual costs are higher than that, then the USCIS fee schedule will be set at a level that is less than what will be required to recover all of the costs added by the Asylum Processing IFR, all other factors remaining the same. Estimated annual costs of the Asylum Processing IFR (mid-range estimate): FY 2022 total costs of $438.2 million plus FY 2023 total costs of $413.6 million equals $851.8. Average total costs of FY 2022/2023 equal $425.9 million. That figure represents the estimated costs that are directly attributable to the implementation of that rule. 339 USCIS in this SEA used the H–1B, Petition for Nonimmigrant Worker: H–1B Classification fee of $1,595 = The fee includes the $1,380 proposed fee for H–1B Classification + $215 initial mandatory for cap-subject H–1B Registration Fee (current $10 to proposed $215; $205 dollar increase). This registration fee of $215 is for each registration, each registration is for a single beneficiary. Registrants or their representative are required to pay the $215 non-refundable H–1B registration fee for each beneficiary before beng eligible to submit a registration for that beneficiary for the H–1B cap. The fee will not be refunded if the registration is not selected, withdrawn, or invalidated. H–1B capexempt petitions are not subject to registration and are not required to pay the registration fee of $215; therefore, those petitioners would only pay the $1,380 propoposed fee. See Registration Fee Requirement for Petitioners Seeking to File H–1B Petitions on Behalf of Cap Subject Aliens, Final Rule (84 FR 60307, November 8, 2019). Available at https://www.govinfo.gov/content/pkg/FR-201911-08/pdf/2019-24292.pdf. See Regulatory Impact Analysis in the docket on regulations.gov, section (3)(H), Separate Fees, for Form I–129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification and Limit Petitions Where Multiple Beneficiaries are Permitted to 25 Named Beneficiaries per Petition, Table 22 and 23, for further detail on the cap and non-cap H–1B petitions. VerDate Sep<11>2014 22:19 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00149 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.096</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Note: Employers may apply usingForml-129 also forP-1, P-lS, P-2, P-2S, P-3, P-3S, Rl, E-1, E-2, E-3. 550 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 32b. USCIS Fees for Form 1-129 Classifications for FY 2022/2023 Visa Classification Immigration Benefit Request H-lB H-2A - Named Beneficiaries Current Fee $460 Total Proposed Fee $1,380/$1,595 340 $1,690 H-2B - Named Beneficiaries $460 H-2A - Unnamed Beneficiaries $460 Difference in Fee Increase Percent Change $920/$1, 135 200%1247% $1,230 267% $1,680 $1,220 265% $460 $1,130 $670 146% H-2B - Unnamed Beneficiaries $460 $1,180 $720 157% 0-1/0-2 $460 $1,655 $1,195 260% L- lA/L- lB/LZ Blanket $460 $1,985 $1,525 332% CW, H-3, E, TN, Q, P, and R $460 $1,615 $1,155 251% Source: See sections 11.C., Summary of Current and Proposed Fees, and V.B.4., Funding the Asylum Program with Employer Petition Fees of the NPRM, of this preamble. Note: Employers may apply using Form 1-129 also for P-1, P-1S, P-2, P-2S, P-3, P-3S, Rl, E-1, E-2, E-3. khammond on DSKJM1Z7X2PROD with PROPOSALS2 340 USCIS in this SEA used the H–1B, Petition for Nonimmigrant Worker: H–1B Classification fee of $1,595 = The fee includes the $1,380 proposed fee for H–1B Classification + $215 initial mandatory for cap-subject H–1B Registration Fee (current $10 to proposed $215; $205 dollar increase). This registration fee of $215 is for each registration, each registration is for a single beneficiary. Registrants or their representative are required to pay the $215 non-refundable H–1B registration fee for each beneficiary before beng eligible to submit a registration for that beneficiary for the H–1B cap. The fee will not be refunded if the registration is not selected, withdrawn, or invalidated. H–1B capexempt petitions are not subject to registration and are not required to pay the registration fee of $215; therefore, those petitioners would only pay the $1,380 propoposed fee. See Registration Fee Requirement for Petitioners Seeking to File H–1B Petitions on Behalf of Cap Subject Aliens, Final Rule (84 FR 60307, November 8, 2019). Available at https://www.govinfo.gov/content/pkg/FR-2019- VerDate Sep<11>2014 22:19 Jan 03, 2023 Jkt 259001 associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity.341 H–1B classification capsubject petitions will include a $215 registration fee, an increase of $205 from the original $10 fee. This registration fee is added to the fee increase and results 11-08/pdf/2019-24292.pdf. See Regulatory Impact Analysis in the docket on regulations.gov, section (3)(H), Separate Fees, for Form I–129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification and Limit Petitions Where Multiple Beneficiaries are Permitted to 25 Named Beneficiaries per Petition, Table 22 and 23, for further detail on the cap and non-cap H–1B petitions. 341 Total Impact to Entity = (Number of Petitions Submitted per Entity × $X Amount of Fee Increase)/ Entity Sales Revenue. DHS used the lower end of the sales revenue range for those entities where ranges were provided. PO 00000 Frm 00150 Fmt 4701 Sfmt 4702 in an overall increase for H–1B classification petitions of $920 ($215 + $705). Because entities can file multiple petitions, the analysis considers the number of petitions submitted by each entity. Based on the proposed fee increases for Form I–129, this will amount to average impacts on all 353 small entities with revenue data as summarized in Table 32c.342 DHS determined that 289 of the 353 entities searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule.343 342 Random sample of small entities with revenue data selected to estimate impacts is described in Table 1 of the SEA. 343 Entities that were considered small based on employee count with missing revenue data were excluded. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.097</GPH> To calculate the impact of this increase, DHS estimated the total costs Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 551 Table 32c: Form 1-129 Classifications Economic Impacts on Small Entities with Revenue Data Visa Classification Immigration Benefit Request Fee Increase H-lB $920/$1 135** Average Impact Percentage* 0.66/0.73% H-2A- Named Beneficiaries $1,230 0.37% H-2B - Named Beneficiaries $1.220 0.75% H-2A- Unnamed Beneficiaries $670 0.37% H-2B - Unnamed Beneficiaries $720 0.75% L- lA/L- lB/LZ Blanket $1,525 0.42% 0-1/0-2 $1.195 0.57% CW H-3.E TN O.P andR $1.155 0.25% Source: USCIS calculation Note: There is no distinction between named and unnamed beneficiaries. Each average impact percentage calculation for H-2A-Named Beneficiaries required assuming each H-2A request is for named beneficiaries while each average impact percentage calculation for H-2A-Unnamed Beneficiaries required assuming that each H-2A request is for unnamed beneficiaries. The same process applied to H-2B requests. Note: Employers may apply using Form 1-129 also for P-1, P-1S, P-2, P-2S, P-3, P-3S, Rl, E-1, E-2, E-3. *These figures are percentages, not proportions. **$920 includes the fee increase ($705) and the increase in re.cistration fee for H-lB cap-subiect petitions ($215). Using a 12-month period of data on the number of Form I–129 petitions filed from October 1, 2019, through September 31, 2020, DHS collected internal data for each filing organization including the name, Employer Identification Number (EIN), city, state, zip code, and number/type of filings. Each entity may make multiple filings. For instance, there were receipts for 553,889 Form I–129 petitions, but only 86,715 unique entities that filed those petitions. Since the filing statistics do not contain information such as the revenue of the business, DHS used third-party sources of data to collect this information. DHS used a business provider database—Data Axle—as well as three open-access databases—Manta, Cortera, and Guidestar—to help determine an organization’s small entity status and then applied Small Business Administration (SBA) size standards to the entities under examination.344 The method DHS used to conduct the SEA was based on a representative sample of the impacted population with respect to each form. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 384 entities, which included using a 95 percent confidence level and a 5 percent confidence interval for a population of 344 Office of Advocacy, SBA, Size Standards Table. Available at https://www.sba.gov/document/ support--table-size-standards. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 86,715 unique entities filing Form I–129 petitions. Based on previous experience conducting small entity analyses, DHS expects to find 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS selected a sample size that was approximately 69 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 650 randomly selected entities from a population of 86,715 unique entities that filed Form I– 129 petitions. Of the 650 searches for small entities that filed Form I–129 petitions, 439 searches returned a successful match of a filing entity’s name in one of the databases and 211 searches did not match a filing entity. Based on previous experience conducting regulatory flexibility analyses, DHS assumes filing entities not found in the online database are likely to be small entities. As a result, to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 439 matches for Form I–129, DHS determined 353 to be small entities based on revenue or employee count and according to their assigned North American Industry Classification System (NAICS) code. Therefore, DHS was able to classify 564 of 650 entities PO 00000 Frm 00151 Fmt 4701 Sfmt 4702 as small entities that filed Form I–129 petitions, including combined nonmatches (211), matches missing data (0), and small entity matches (353). Using the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), the 0 matches missing data found in the databases lacked applicable revenue or employee count data. DHS determined that 564 of 650 (86.8 percent) of the entities filing Form I–129 petitions were small entities. Furthermore, DHS determined that 353 of the 650 entities searched were small entities based on sales revenue or employee data, which were needed to estimate the economic impact of the proposed rule. Since these 353 small entities were a subset of the random sample of 650 entity searches, they were considered statistically significant in the context of this research. To calculate the economic impact of this rule, DHS estimated the total costs associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity.345 Among the 353 matched small entities, 289 small entities had reported revenue data, 90.4 percent experienced 345 Total Economic Impact to Entity = (Number of Petitions Submitted per Entity * $X Amount of Fee Increase)/Entity Sales Revenue. DHS used the lower end of the sales revenue range for those entities where ranges were provided. Entities in the population without complete or with no EIN information (such as incomplete employee data or revenue information), were removed before the sample was selected for this analysis. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.098</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C 552 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules an economic impact of less than 1 percent with the exception of 9.6 of the small entities. Those small entities with greater than 1 percent impact filed multiple petitions and had a low reported revenue. Therefore, these small entities may file fewer petitions as a result of this proposed rule. Depending on the immigration benefit request, the average impact on all 289 small entities with revenue data ranges from 0.25 to 0.75 percent as shown above in Table 29c. In other words, no matter which version of the separated Form I–129 is applicable, the greatest economic impact proposed by this fee change was 19.04 percent and the smallest was 0.005 percent per entity. The average impact on all 289 small entities with revenue data was 0.57 percent. Small Entity Classifications With an aggregated total of 564 out of a sample size of 650, DHS inferred that a majority, or 86.8 percent, of the entities filing Form I–129 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-forprofit. The NAICS code 611 (Educational Services) may have forprofit entities. Most of the sample consisted of small businesses when looked at by type of small entity. There are no small governmental jurisdictions in the sample and 38 small not-forprofits. 2. Immigrant Petition for an Alien Worker, Form I–140 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Funding the Asylum Program With Form I–140 Petition Fees As explained in section X.B.1., Petition for a Nonimmigrant Worker, Form I–129 Funding the Asylum Program with Employer Form I–129 by Visa Classification Petition Fees, DHS proposes a new Asylum Program Fee of $600 to be paid by any Form I–140, Immigrant Petition for Alien Worker. This Asylum Program Fee adds a fee for Form I–140 petitioners of $600 while maintaining the fees other immigration benefit requestors that this rule proposes lower than would be proposed VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 if the costs were spread among all other fee payers. For example, by charging the Asylum Program Fee to I–140 petitioners as well as the I–129 petitioners, it helps recover the cost of the Asylum Program work while minimizing fee increases on forms that do not recover full cost (Forms N–400, I–600, I–800, etc.), or without adding a fee to forms that currently have none (Forms I–589, I–590, I–914, I–918, etc.). If Forms I–129 and I–140 recover more of those costs, then that means other forms need not recover as much. This results in lower proposed fees for certain forms, and others that recover more than full cost in this proposal. It would apply to all fee-paying receipts for Form I–140 and Form I–129. DHS proposes to increase the fee to file Immigrant Petition for an Alien Worker, Form I–140, from $700 to $715, an increase of $15 (2 percent). The total proposed fee would include the $600 Asylum Program Fee for a total of $1,315, an overall increase of $615 (88 percent) per petition. Using a 12-month period of data on the number of Form I–140 petitions filed from October 1, 2019, through September 31, 2020, DHS collected internal data similar to that of Form I–129. The total number of Form I–140 petitions was 129,531, with 25,279 unique entities that filed petitions. DHS used the same databases previously mentioned to search for information on revenue and employee count. DHS used the same method as with Form I–129 to conduct the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 383 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 25,279 unique entities for Form I–140 petitions. Based on previous experience conducting small entity analyses, DHS expected to find 40 to 50 percent of the filing organizations in the online subscription and public databases. Accordingly, DHS selected a sample size that was approximately 44 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 550 randomly selected entities from a population of 25,279 unique entities that filed Form I– 140 petitions. Of the 550 searches for small entities that filed Form I–140 petitions, 464 searches successfully matched the name of the filing entity to names in the databases and 86 searches did not match PO 00000 Frm 00152 Fmt 4701 Sfmt 4702 the name of a filing entity. Based on previous experience conducting regulatory flexibility analyses, DHS assumes filing entities not found in the online databases are likely to be small entities. As a result, in order to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the nonmatched entities as small entities for the purpose of this analysis. Among the 464 matches for Form I–140, DHS determined 292 to be small entities based on revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 379 of 550 entities as small entities that filed Form I–140 petitions, including combined non-matches (86), matches missing data (1), and small entity matches (292). Using the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), one matched entity found in the databases lacked applicable revenue statistics. DHS determined that 379 out of 550 (68.9 percent) entities filing Form I–140 petitions were small entities. Furthermore, DHS determined that 292 of the 550 searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 292 were a small entity subset of the random sample of 550 entity searches, they were considered statistically significant in the context of this research based on sales revenue information. Similar to Form I– 129, DHS calculated the economic impact of this rule on entities that filed Form I–140 by estimating the total costs associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity.346 Among the 292 small entities with reported revenue data, 98 percent experienced an economic impact of less than 1 percent, with the exception of 2 percent of the small entities. Using the above methodology, the greatest economic impact proposed by this fee change was 2.71 percent and the smallest was 0.006 percent per entity. Because of the fee increase, these small entities would see a cost increase per application in filing fees based on petitions. The average impact on all 292 small entities with revenue data was 0.16 percent. Small Entity Classification With an aggregated total of 379 out of a sample size of 550, DHS inferred that 346 Total Impact to Entity = (Number of Petitions Submitted per Entity * $615 Fee amount Increase)/ Entity Sales Revenue. USCIS used the lower end of the sales revenue range for those entities where ranges were provided. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules a majority, or 68.9 percent, of the entities filing Form I–140 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-forprofit. The NAICS code 611 (Educational Services) may have forprofit entities. Similar to the Form I–129 small entity types, the sample of Form I–140 consisted mainly of small businesses, with no small governmental jurisdictions in the sample and 15 small not-for-profits. Cumulative Impact of Form I–129 and Form I–140 Petitions In addition to the individual Form I– 129 and Form I–140 analyses, USCIS analyzed any cumulative impacts of these form types to determine if there were any impacts to small entities when analyzed together. Based on the samples in the individual analyses, USCIS isolated those entities that overlapped in both samples of Forms I–129 and I– 140 by EIN and revenue. Only 1 entity had an EIN that overlapped in both samples; this was a large entity that submitted 3 Form I–129 petitions and 1 Form I–140 petition. Due to little overlap in entities in the samples, and the relatively minor impacts on revenue of fee increases of Forms I–129 and I– 140, USCIS does not expect the combined impact of these 2 forms to be an economically significant burden on a number of small entities. khammond on DSKJM1Z7X2PROD with PROPOSALS2 3. Civil Surgeon Designation, Form I– 910 DHS proposes to increase the fee for Civil Surgeon Designations, Form I–910, from $785 to $1,230, an increase of $445 (57 percent). To calculate the economic impact of this increase, USCIS estimated the total costs associated with the fee increase for each entity and divided that amount by the sales revenue of that entity.347 Using a 12-month period of data from October 1, 2019, to September 347 Total Impact to Entity = (Number of Petitions Submitted per Entity * $445 Fee Amount Increase) Entity Sales Revenue. USCIS used the lower end of the sales revenue range for those entities where ranges were provided. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 31, 2020,348 DHS collected internal data on filings of Form I–910. The total number of Form I–910 applications was 639, with 428 unique entities that filed applications. The third-party databases mentioned previously were used again to search for revenue and employee count information. Using the same methodology as for the Forms I–129 and I–140, USCIS conducted the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 203 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 428 unique entities for Form I–910. USCIS conducted searches on 300 randomly selected entities from a population of 428 unique entities for Form I–910 petitions, a sample size approximately 48-percent larger than the minimum necessary. Of the 300 searches for small entities that filed Form I–910 petitions, 244 searches successfully matched the name of the filing entity to names in the databases and 56 searches did not match the name of a filing entity. DHS assumes filing entities not found in the online databases are likely to be small entities. DHS also considers all of the nonmatched entities as small entities for the purpose of this analysis. Among the 244 matches for Form I–910, DHS determined 207 to be small entities based on their revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 268 of 300 entities as small entities that filed Form I–910 petitions, including combined non-matches (5), matches missing data (56), and small entity matches (207). DHS also used the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), and the five matches missing data that were found in the databases lacked revenue data and associated employment threshold. DHS determined that 268 out of 300 (89.3 percent) entities filing Form I–910 applications were small entities. Furthermore, DHS determined that 207 of the 300 entities searched were small 348 DHS acknowledges the broad effects of the COVID–19 international pandemic on the United States and the populations affected by this rule. However, while most forms were impacted as a result of COVID, Form I–129 receipts increased in line with recent years. Thus, we decided to use the most recent fiscal year data from FY 20 for the samples to complete the supplemental Small Entity Analysis to maintain consistency across IRFAs regardless of the general effect of COVID–19 on filings, because that effect is not applicable to the forms discussed in this section. PO 00000 Frm 00153 Fmt 4701 Sfmt 4702 553 entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 207 were a small entity subset of the random sample of 300 entity searches, they were considered statistically significant in the context of this research, based on sales revenue information. Similar to the Forms I–129 and I–140, DHS calculated the economic impact of this rule on entities that filed Form I– 910 by estimating the total impact associated with the proposed fee increase for each entity and divided that amount by the sales revenue of that entity. Among the 207 small entities with reported revenue data, 97.6 percent experienced an economic impact considerably less than 1 percent, with the exception of 2.4 percent of the small entities. The greatest economic impact imposed by this proposed fee change was 1.85 percent and the smallest was 0.004 percent per entity. The average impact on all 207 small entities with revenue data was 0.15 percent. The increased fee will increase individual applicants’ cost by $445. Small Entity Classification With an aggregated total of 268 out of a sample size of 300, DHS inferred that a majority, or 89.3 percent, of the entities filing Form I–910 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-forprofit. The NAICS code 611 (Educational Services) may have forprofit entities. The sample of Form I– 910 consisted mainly of small businesses, with no small governmental jurisdictions in the sample and 5 small not-for-profits. 4. Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360 DHS proposes to increase the fee for entities petitioning on behalf of foreign religious workers who file using Form I– 360 from $435 to $515, an increase of $80 (18 percent), including entities who petition on behalf of foreign religious workers. To calculate the impact of the increase, DHS estimated the total costs E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 554 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules associated with the fee increase for each entity and divided that amount by the sales revenue of that entity.349 Using a 12-month period of data on the number of Form I–360 petitions filed from October 1, 2019, to September 31, 2020, DHS collected internal data on filings of Form I–360 for religious workers. The total number of Form I– 360 petitions was 2,388, with 489 unique entities that filed petitions. DHS used the same databases mentioned previously to search for information on revenue and employee count. DHS used the same method as with Forms I–129 and I–140 to conduct the SEA based on a representative sample of the impacted population. To identify a representative sample, DHS used a standard statistical formula to determine a minimum sample size of 215 entities, which included using a 95 percent confidence level and a 5 percent confidence interval on a population of 489 unique entities for Form I–360 petitions. To account for missing organizations in the online subscription and public databases, DHS selected a sample size that was approximately 95 percent larger than the necessary minimum to allow for non-matches (filing entities that could not be found in any of the four databases). Therefore, DHS conducted searches on 420 randomly selected entities from a population of 489 unique entities that filed Form I–360 petitions. Of the 420 searches for small entities that filed Form I–360 petitions, 248 searches successfully matched the name of the filing entity to names in the databases and 172 searches did not match the name of a filing entity in the databases. DHS assumes that filing entities not found in the online databases are likely to be small entities. As a result, to prevent underestimating the number of small entities this rule would affect, DHS conservatively considers all of the non-matched entities as small entities for the purpose of this analysis. Among the 248 matches for Form I–360, DHS determined 208 to be small entities based on revenue or employee count and according to their NAICS code. Therefore, DHS was able to classify 399 of 420 entities as small entities that filed Form I–360 petitions, including combined non-matches (172), matches missing data (19), and small entity matches (208). DHS also used the online databases mentioned above (Data Axle, Manta, Cortera, and Guidestar), and the 19 matches missing data that 349 Total Impact to Entity = (Number of Petitions Submitted per Entity * $80 Fee Amount Increase)/ Entity Sales Revenue. USCIS used the lower end of the sales revenue range for those entities where ranges were provided. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 were found in the databases lacked revenue or employee count data. DHS determined that 399 out of 420 (95.0 percent) entities filing Form I–360 petitions were small entities. Furthermore, DHS determined that 208 of the 420 searched were small entities based on sales revenue data, which were needed to estimate the economic impact of the proposed rule. Since these 208 small entities were a subset of the random sample of 420 entity searches, they were considered statistically significant in the context of this research. Similar to other forms analyzed in this IRFA, DHS calculated the economic impact of this rule on entities that filed Form I–360 on behalf of religious workers by estimating the total costs associated with the proposed fee increase for each entity. Among the 208 small entities with reported revenue data, 99.5 percent experienced an economic impact of less than 1 percent, with the exception of 0.5 percent of the small entities. The greatest economic impact imposed by this proposed fee change was 4.11 percent and the smallest was 0.0008 percent per entity. The average impact on all 208 small entities with revenue data was 0.08 percent. DHS also analyzed the proposed costs of this rule on the petitioning entities relative to the costs of the typical employee’s salary. Guidelines suggested by the SBA’s Office of Advocacy indicate that the impact of a rule could be significant if the cost of the regulation exceeds 5 percent of the labor costs of the entities in the sector.350 According to the Bureau of Labor Statistics (BLS), the mean annual salary is $57,230 for clergy,351 $52,880 for directors of religious activities and education,352 and $43,290 for other religious workers.353 Based on an average of 1.59 religious workers 354 350 Office of Advocacy, Small Business Administration ‘‘A Guide for Government Agencies, How to Comply with the Regulatory Flexibility Act,’’ page 19: Available at https://www.sba.gov/ sites/default/files/advocacy/How-to-Comply-withthe-RFA-WEB.pdf. 351 BLS, ‘‘Occupational Employment Statistics, May 2021, ‘‘Clergy’’: https://www.bls.gov/oes/2021/ may/oes212011.htm. 352 BLS, ‘‘Occupational Employment Statistics, May 2021, ‘‘Directors of Religious Activities and Education’’: Available at https://www.bls.gov/oes/ 2021/may/oes212021.htm. 353 BLS, ‘‘Occupational Employment Statistics, May 2021, ‘‘Religious Workers, All Other’’: Available at https://www.bls.gov/oes/2021/may/ oes212099.htm. 354 USCIS calculated the average filing per entity of 1.6 petitions, from the Form I–360 Sample with Petition Totals in Appendix E of the SEA for this NPRM. Calculation: (total number of petitions from each sample id)/(total number of sample Form I– PO 00000 Frm 00154 Fmt 4701 Sfmt 4702 petitioned for per entity, the additional average annual cost would be $127.20 per entity.355 The additional costs per entity proposed by this rule represent only 0.22 percent of the average annual salary for clergy, 0.24 percent of the average annual salary for directors of religious activities and education, and 0.29 percent of the average annual salary for all other religious workers.356 Small Entity Classification With an aggregated total of 399 out of a sample size of 420, DHS inferred that a large majority, or 95.0 percent, of the entities filing Form I–360 petitions were small entities. Small entities filing petitions could be for-profit businesses or not-for-profit entities. To understand the extent to which not-for-profits were included in the samples selected for each form DHS categorized entities as for-profit or not-for-profit. The business data provider databases do not distinguish if entities are for-profit or not-for-profit, so DHS used the assumption that entities with NAICS codes 712 (Museums, Historical Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic, Professional, and Similar Organizations), and 6241 (Family Social Services) were not-forprofit. The NAICS code 611 (Educational Services) may have forprofit entities. The sample of Form I– 360 consists of a majority not-for-profit entities, primarily composed of religious institutions. There were no small governmental jurisdictions in the sample and 221 small not-for-profits. 5. Genealogy Requests—Genealogy Index Search Request, Form G–1041, and Genealogy Records Request, Form G–1041A In this proposed rule, DHS establishes an increase in the fee for the Genealogy Index Search Request, Form G–1041, from $65 to $120, an increase of $55 (85 percent) for those who mail in this request on paper. This proposed rule increases the fee for requestors who use the online electronic Form G–1041 version from the current $65 to $100, an increase of $35 (54 percent). In this proposed rule, DHS establishes a fee for Form G–1041A that would increase from $65 to $260, an increase of $195 (300 percent) for those who mail 360 petitions) = 667/420 = 1.59 average petitions filed per entity. 355 Calculation: 1.59 average petitions per entity * $80 increase in petition fees = $127.20 additional total cost per entity. 356 Calculation: $127.20 additional cost per entity/$57,230 clergy salary × 100 = 0.22 percent; $127.20 additional cost per entity/$52,880 directors of religious activities and education × 100 = 0.24 percent; $127.20 additional cost per entity/$43,290 other religious workers × 100 = 0.29 percent. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 in this request on paper. In this proposed rule, the fee for requestors who use the online electronic Form G– 1041A will increase from the current $65 to $240, an increase of $175 (269 percent). Finally, DHS is proposing to charge a fee for requests for a Certificate of NonExistence. Currently, USCIS allows individuals to request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States. This service is often used by individuals gathering genealogical records to claim the citizenship of another nation. USCIS operates the Certificate of Non-Existence request process informally and at no cost to individuals while absorbing the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 costs to provide this service.357 DHS proposes a fee of $315 for individuals to recover the estimated full cost of processing these requests, which will require submission of Form G–1566, Request for a Certificate of NonExistence, once approved by OMB. The population affected by this provision includes individuals who use Form G–1041 to request a search of USCIS historical indices and individuals who use Form G–1041A to obtain copies of USCIS historical records found through an index request. 357 See 8 CFR 103.7(f) as of October 1, 2020, which provides that the Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records. PO 00000 Frm 00155 Fmt 4701 Sfmt 4702 555 The affected population also includes individuals who request a Certificate of Non-Existence to document that USCIS has no records indicating that an individual became a naturalized citizen of the United States. Based on the DHS records, Table 33 shows the estimated number of genealogy index search requests and historical records requests that were submitted to USCIS using Forms G–1041 and G–1041A for FY 2016 through FY 2020. DHS estimates that an annual average of 5,250 Form G– 1041 index search requests and 3,352 Form G–1041A records requests were received during that time. For both forms, more than 90 percent of the requests were submitted electronically. BILLING CODE 9111–97–P E:\FR\FM\04JAP2.SGM 04JAP2 556 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 33. Receipts of Form G-1041, Genealogy Index Search Request, Form G-1041A, Genealogy Records Request and Form G-1566, Request for a Certificate of Non-Existence for FY 2016 throu2h FY 2020 Form G-1041 Form G-1041 Percentage Filed Fiscal Year (Paper Filine) (Online Filine) Total Online 2016 321 5,192 5,513 94% 2017 274 3,036 3,310 92% 2018 228 3,602 3,830 94% 2019 218 5,295 5,513 96% 2020 318 7,764 8,082 96% 5-year Total 1,359 24,889 26,248 5-year Annual 95% 272 4,978 5,250 Avera2e Fiscal Year 2016 2017 2018 2019 2020 5-vear Total 5-year Annual Averae:e Form G-1041A (Paoer Filin2) 290 364 298 33 344 1,329 Form G-1041A (Online Filin2) 2,220 2,262 2,645 3,407 4,895 15,429 Total 2,510 2,626 2,943 3,440 5,239 16,758 266 Certificate of NonExistence Form G1566 679 909 1,442 1,516 1,784 6,330 3,086 3,352 Percentage Filed Online 88% 86% 90% 99% 93% 92% khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C Table 33 depicts the FY 2016 through FY 2020 filing receipts of the certificate of non-existence. DHS bases the estimate for the Form G–1566 on these receipts and estimates that the average annual receipts for Form G–1566 would be approximately 1,266. DHS has previously determined that requests for historical records are usually made by individuals.358 If professional genealogists and researchers submitted such requests in the past, they did not identify themselves as commercial requestors and, therefore, DHS could not separate these data from the dataset. Genealogists typically advise clients on how to 358 See Establishment of a Genealogy Program, 73 FR 28026 (May 15, 2008). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 submit their own requests. For those who submit requests on behalf of clients, DHS does not know the extent to which they can pass along the fee increases to their individual clients. DHS assumes genealogists have access to a computer and the internet. DHS is unable to estimate the online number of index searches and records requests; however, some will receive a reduced fee and cost savings, by filing online. Therefore, DHS currently does not have sufficient data to definitively assess the impact on small entities for these requests. However, DHS must still recover the full costs of this program. As stated in the preamble to this proposed rule, reducing the filing fee for any one benefit request submitted to DHS simply transfers the additional cost to process PO 00000 Frm 00156 Fmt 4701 Sfmt 4702 this request to other immigration and naturalization filing fees. For this proposed rule, DHS is expanding the use of electronic genealogy requests to encourage requestors to use the electronic versions of Form G–1041 and Form G–1041A. DHS is also changing the search request process so that USCIS may provide requestors with electronic records, if they exist, in response to the initial index request. These changes may reduce the time it takes to request and receive genealogy records, and, in some cases, it will eliminate the need to make multiple search requests and submit separate fees. Moreover, DHS notes that providing digital records in response to a Form G–1041 request may reduce the number of Form G–1041A requests that E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.099</GPH> Fiscal Year 2016 2017 2018 2019 2020 5-year Total 5-year Annual 1,266 Averae:e Source: USCIS, Immigration Records and Identity Senrices (IRIS) Directorate, Records Information Systems Branch (RISB). August 19, 2021. Note: IRIS tracks the online percentage of index searches and records reauests. Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 will be filed since there would already be a copy of the record if it was previously digitized. DHS proposes to provide the requestor with those preexisting digital records, if they exist, via email in response to the initial search request. Electronic versions of the requests reduce the administrative burden on USCIS by eliminating the need to manually enter requestor data into its systems. Requestors that cannot submit the forms electronically may still submit paper copies of both forms with the required filing fees. DHS recognizes that some small entities may be impacted by these proposed increased fees but cannot determine how many or the exact impact. DHS requests comments from the public on the impacts to small entities of the proposed fee increases to the genealogy forms. 6. Application for Regional Center Designation Under the EB–5 Regional Center Pilot Program, Form I- 956 (Formerly Form I–924) and I–956G (Formerly Form I–924A) Congress created the EB–5 program in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors. The EB–5 regional center program was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Public Law 102–395, sec. 610, 106 Stat 1828 (Oct. 6, 1992). As amended, the EB–5 program makes approximately 10,000 visas available annually to foreign nationals (and their dependents) who invest at least $1,050,00 or a discounted amount of $800,000 if the investment is in a targeted employment area (TEA) (which includes certain rural areas and areas of high unemployment) or infrastructure project in a U.S. business that will create at least 10 full-time jobs in the United States for qualifying employees. See INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8 U.S.C. 11538 U.S.C. 1153. Such investment amounts are not necessarily indicative of whether the regional center is appropriately characterized as a small entity for purposes of the RFA. Due to the lack of regional center revenue data, DHS assumes regional centers collect revenue primarily through the administrative fees charged to investors. On March 5, 2022, the President signed the EB–5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117– 103). The EB–5 Reform and Integrity Act of 2022 immediately repealed the Regional Center (RC) Pilot Program created by the Departments of Commerce, Justice, and State, the VerDate Sep<11>2014 00:08 Jan 04, 2023 Jkt 259001 Judiciary, and Related Agencies Appropriations Act 1993, Public Law 102–395, 106 Stat. 1828, sec. 610(b). The law also authorizes a new EB–5 Regional Center Program, which will become effective May 14, 2022 and is authorized through FY 2026 and makes various changes to the program. As discussed more fully in section VIII.N. of the NPRM, DHS proposes new fees for the forms used in the EB–5 program in this proposed rule. DHS proposes changes to various fees for regional centers and related immigration benefit requests related to Employment-Based Immigrant Visa, Fifth Preference (EB–5). The EB–5 Reform and Integrity Act of 2022 immediately repealed and replaced the prior EB–5 ‘‘regional center program.’’ The EB–5 Reform and Integrity Act of 2022 has no immediate impact on the staffing levels of the USCIS Immigrant Investor Program Office, although each existing Regional Center will be required to submit a request to be reapproved under the law, which could greatly increase the program workload initially. Nevertheless, and despite the changes in the law and program, DHS has proposed fees in this rule based on the currently projected staffing needs to meet the adjudicative and administrative burden of the Immigrant Investor Program Office pending the fee study required by section 106(a) of the EB–5 Reform and Integrity Act of 2022. Thus, the annual filing volume projections in this rule are based on historical volumes and trends because the EB–5 Reform and Integrity Act of 2022 is too new for DHS to accurately estimate its impacts on filing volumes. DHS welcomes comments from the public on the number of forms for the EB–5 program that will be submitted annually and how that number will be changed by the recent legislation. DHS may adjust the estimated filing volumes in the final rule based on additional analysis and comments on this rule. DHS is proposing a fee for Form I– 956, Application for Regional Center Designation, is $47,695, a $29,900 (168 percent) increase from the $17,795 fee for Form I–924, Application for Regional Center Designation under the Immigrant Investor Program. See 8 CFR 103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(64). DHS also proposes a $47,695 fee for Form I–956F, Application for Approval of Investment in a Commercial Enterprise, because its adjudicative burden is nearly identical to that of the Form I–956. The proposed fee for Form I–956G, Regional Center Annual Statement, is $4,470, a $1,435 (47 percent) increase from the current $3,035 fee Form I–924A, Annual PO 00000 Frm 00157 Fmt 4701 Sfmt 4702 557 Certification of Regional Center. See 8 CFR 103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(66). The EB–5 program encompasses Forms I–526, I– 829, I–956, I–965F, and I–956G.359 DHS is creating these new forms as stated above, as part of the EB–5 Reform and Integrity Act of 2022. Since Form I– 956/I–956A will be new forms and historical data does not exist. Because the immigration benefit adjudications previously performed using Form I–924 will now be administered using Forms I–956 and I–956G, DHS will use historical data of the previous Form I– 956 (formerly Form I–924) Application for Regional Center Designation and Form I–956G (formerly Form I–924A), Annual Certification of Regional Center as a proxy for the analysis. Under the Regional Center Program, foreign nationals based their EB–5 petitions on investments in new commercial enterprises located within ‘‘regional centers.’’ DHS regulations define a regional center as an economic unit, public or private, that promotes economic growth, regional productivity, job creation, and increased domestic capital investment. See 8 CFR 204.6(e). Requests for regional center designation must be filed with USCIS on Form I–956 (formerly Form I–924), Application for Regional Center Designation Under the Immigrant Investor Program. See 8 CFR 204.6(m)(3) and (4). Once designated, regional centers must provide USCIS with updated information to demonstrate continued eligibility for the designation by submitting Form I–956G (formerly Form I–924A), Annual Certification of Regional Center on an annual basis or as otherwise requested. See 8 CFR 204.6(m)(6)(i)(B). The application process would require the same information from applicants that is currently required. As shown in Table 34, during the 5-year period from FY 2016 through FY 2020, USCIS received a total of 951 annual Form I–956 (formerly Form I–924) regional centers applications and 4,091 359 The Supplement to Form I–956G is used to certify a Regional Center’s continued eligibility for the Regional Center designation through an annual certification. Each designated Regional Center entity must file a Form I–956G for each fiscal year within 90 days after the end of the fiscal year of the calendar year in which the fiscal year ended. DHS has also created Forms I–956H, Bona Fides of Persons Involved with Regional Center Program, and I–956K Registration for Direct and Third-Party Promoters, for the new EB–5 program. DHS proposes no fee for those forms in this proposed rule. E:\FR\FM\04JAP2.SGM 04JAP2 558 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Form I–956G (formerly Form I–924A) annual statements, with annual averages 190 and 818 respectively. Table 34. Annual Receipts for Form 1-956, Application For Regional Center Designation Under the Immigrant Investor Program, and Form I-956G, Annual Statements of Regional Center, for FY 2016 through FY 2020 Form 1-956* Form I-956G** 2016 436 863 2017 280 843 2018 122 887 2019 79 820 2020 34 678 5-year Total 951 4,091 5-year Annual Average 190 818 Fiscal Year *Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division, CLAIMS 3 database, May 5, 2021. **Source: USCIS, Immigrant Investor Office (IPO), INF ACT database, January 6, 2022. Regional centers are difficult to assess because there is a lack of official USCIS data on employment, income, and industry classification for these entities. It is difficult to determine the small entity status of regional centers without such data. Such a determination is also difficult because regional centers can be structured in a variety of different ways, and can involve multiple business and financial activities, some of which may play a direct or indirect role in linking investor funds to NCEs and job-creating projects or entities. Regional centers also pose a challenge for analysis as their structure is often complex and can involve many related business and financial activities not directly involved with EB–5 activities. Regional centers can be made up of several layers of business and financial activities that focus on matching foreign investor funds to development projects to capture above-market return differentials. While DHS attempted to treat regional centers similar to the other entities in this analysis, DHS was not able to identify most of the entities in any of the public or private online databases. Furthermore, while regional centers are an integral component of the EB–5 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 program, DHS does not collect data on the administrative fees the regional centers charge to the foreign investors who are investing in one of their projects. DHS did not focus on the bundled capital investment amounts (either a discounted $500,000 if the investment is in a TEA project, which includes certain rural areas and areas of high unemployment, or $1 million for a non-TEA project per investor, in a U.S. business that will create or preserve at least 10 full-time jobs in the United States for qualifying employees) 360 that get invested into an NCE. Such investment amounts are not necessarily indicative of whether the regional center is appropriately characterized as a small entity for purposes of the RFA. Due to the lack of regional center revenue data, DHS assumes regional centers collect revenue primarily through the administrative fees charged to investors. 360 U.S. Department of Homeland Security, USCIS—EB–5 Immigrant Investor Program Modernization, Proposed rule. See 84 FR 35750 (July 24, 2019). Available at https:// www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/ 2019-15000.pdf. This amount by investor is determined between a designated Target Employment Area and non-Target Employment Area. PO 00000 Frm 00158 Fmt 4701 Sfmt 4702 DHS did consider the information provided by regional center applicants as part of the Forms I–956 (formerly Form I–924) and I–956G (formerly Form I–924A); however, it does not include adequate data to allow DHS to reliably identify the small entity status of individual applicants. Although regional center applicants typically report the NAICS codes associated with the sectors they plan to direct investor funds toward, these codes do not necessarily apply to the regional centers themselves. In addition, information provided to DHS concerning regional centers generally does not include regional center revenues or employment. DHS was able to obtain some information under some specific assumptions in an attempt to analyze the small entity status of regional centers. In the DHS proposed rule ‘‘EB– 5 Immigrant Investor Program Modernization,’’ DHS analyzed estimated administrative fees and revenue amounts for regional centers.361 DHS found both the mean and median for administrative fees to be $50,000 and the median revenue amount to be 361 Id. E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.100</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 Note: I-956G are the annual statements to be submitted by these approved regional centers. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules $1,250,000 over the period FY 2017 through FY 2020. DHS does not know the extent to which these regional centers can pass along the fee increases to the individual investors. Passing along the costs from this proposed rule can reduce or eliminate the economic impacts to the regional centers. While DHS cannot definitively claim there is no significant economic impact to these small entities based on existing information, DHS would assume existing regional centers with revenues equal to or less than $447,000 per year (some of which DHS assumes would be derived from administrative fees charged to individual investors) could experience a significant economic impact if DHS assumes a fee increase that represents 1 percent of annual revenue is a ‘‘significant’’ economic burden under the RFA.362 DHS welcomes comments from the public on the impacts to small entities of the proposed fee increases to Form I– 956G (formerly Form I–924A) and requests information from the public on data sources on the average revenues collected by regional centers in the form of administrative fees and the extent to which regional centers may pass along the fee increases to the individual investors. d. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record. The proposed rule does not directly impose any new or additional ‘‘reporting’’ or ‘‘recordkeeping’’ requirements on filers of Form I–129, I– 140, I–910, I–360, G–1041, G–1041A, I– 956 (formerly Form I–924), or I–956G (formerly I–924A). The proposed rule does not require any new professional skills for reporting. e. An identification, to the extent practical, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. DHS is unaware of any duplicative, overlapping, or conflicting Federal rules, but invites any comment and information regarding any such rules. f. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities, including alternatives considered as: 362 Calculation: 1 percent of $447,000 = $4,470 (the new fee for Form I–956G; formerly Form I– 924A). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) Use of performance rather than design standards; and (4) Any exemption from coverage of the rule, or any part thereof, for such small entities. The INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other immigrant applicants. In addition, DHS must fund the costs of providing services without charge by using a portion of the filing fees that are collected for other immigration benefits. Without an adjustment in fees, USCIS would not be able to sustain the current level of service for immigration and naturalization benefits. While most immigration benefit fees are paid by individuals, as described above, some also are paid by small entities. USCIS seeks to minimize the impact on all parties, and in particular small entities. An alternative to the increased economic burden of the proposed rule is to maintain fees at their current level for small entities. The strength of this alternative is that it assures no additional fee burden is placed on small entities; however, this alternative also would cause negative impacts to small entities. Without the fee adjustments proposed in this proposed rule, significant operational changes would be necessary in order for USCIS to provide current immigration and naturalization benefits to the public. These changes would include reductions in Federal and contract staff, infrastructure spending on information technology and facilities, travel, and training. Depending on the actual level of workload received, these operational changes could result in longer application processing times, a degradation in service to applicants and petitioners, and reduced efficiency over time. DHS is therefore not proposing to exempt small entities from the fee increases outlined in this proposed rule. g. Questions for Comment to Assist Regulatory Flexibility Analysis. • DHS seeks comment on the numbers of small entities that may be impacted by this proposed rulemaking. • DHS seeks comment on any or all of the provisions in the proposed rule with regard to the economic impact of PO 00000 Frm 00159 Fmt 4701 Sfmt 4702 559 this proposed rule, paying specific attention to the effect of the rule on small entities in light of the above analysis, as well as the full small entity analysis on regulations.gov. • DHS seeks comment on any significant alternatives DHS should consider in lieu of the changes proposed by this proposed rule. • DHS seeks ways in which the rule could be modified to reduce burdens for small entities consistent with the Immigration and Nationality Act and the Chief Financial Officers Act requirements. • Please identify all relevant Federal, State, or local rules that may duplicate, overlap, or conflict with the proposed rule. C. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed rule, or final rule for which the agency published a proposed rule, that includes any Federal mandate that may result in $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector.363 While this proposed rule is expected to exceed the $100 million in 1995 expenditure in any one year when adjusted for inflation ($178 million in 2021 dollars based on the Consumer Price Index for All Urban Consumers (CPI–U)),364 DHS does not believe this proposed rule would impose any unfunded Federal mandates on State, local, and Tribal governments, in the aggregate, or on the private sector. It does not contain a Federal mandate as 363 See 2 U.S.C. 1532(a). U.S. Department of Labor, BLS, ‘‘Historical Consumer Price Index for All Urban Consumers (CPI–U): U.S. city average, all items, by month,’’ available at https://www.bls.gov/cpi/tables/ supplemental-files/historical-cpi-u-202112.pdf (last visited Jan. 13, 2022). Calculation of inflation: (1) Calculate the average monthly CPI–U for the reference year (1995) and the current year (2021); (2) Subtract reference year CPI–U from current year CPI–U; (3) Divide the difference of the reference year CPI–U and current year CPI–U by the reference year CPI–U; (4) Multiply by 100 = [(Average monthly CPI–U for 2021¥Average monthly CPI–U for 1995)/(Average monthly CPI–U for 1995)]*100=[(270.970¥152.383)/ 152.383]*100=(118.587/ 152.383)*100=0.77821673*100=77.82 percent=78 percent (rounded). Calculation of inflation-adjusted value: $100 million in 1995 dollars*1.78=$178 million in 2021 dollars. 364 See E:\FR\FM\04JAP2.SGM 04JAP2 560 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules the term is defined under UMRA.365 The requirements of Title II of UMRA, therefore, do not apply, and DHS has not prepared a written statement. D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act) The Congressional Review Act (CRA) was included as part of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) by section 804 of SBREFA, Public Law 104–121, 110 Stat. 847, 868, et seq. This proposed rule, if finalized, would be a major rule as defined by section 804 of SBREFA because the aggregate amount of additional fees to be collected will exceed $100 million. See 5 U.S.C. 804(2)(A) (providing that a rule is a major rule if it is likely to result in an annual effect on the economy of $100 million or more). Accordingly, absent exceptional circumstances, this proposed rule if enacted as a final rule would be effective at least 60 days after the date on which Congress receives a report submitted by DHS as required by 5 U.S.C. 801(a)(1). E. Executive Order 13132 (Federalism) This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This proposed rule was drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform. This proposed rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities to minimize litigation and undue burden on the Federal court system. DHS has determined that this proposed rule meets the applicable standards provided in section 3(a) and 3(b)(2) of E.O. 12988. G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This proposed rule would not have ‘‘Tribal implications’’ under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Accordingly, E.O. 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis. H. Paperwork Reduction Act Under the PRA of 1995, 44 U.S.C. 3501–12, DHS must submit to OMB, for review and approval, any reporting requirements inherent in a rule, unless they are exempt. In accordance with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instruments. Please see the accompanying PRA documentation for the full analysis. The Information Collection table below shows the summary of forms that are part of this rulemaking. BILLING CODE 9111–97–P Table 35: Information Collection Form Number G-1041 Form Name Genealogy Index Search Request Tvoe of PRA Action 365 The term ‘‘Federal mandate’’ means a Federal intergovernmental mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1), 658(6). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00160 Fmt 4701 Sfmt 4725 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.101</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS2 OMBNumber 1615-0096 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 561 Table 35: Information Collection Form Number G-1041A 1615-0156 G-1566 1615-0079 1-102 1615-0009 1-129 I-129CW 1615-0111 I-129CWR 1615-0001 I-129F 1615-0010 I-129S Petition for Alien fiancé(e) Nonimmigrant Petition Based on Blanket L Petition Petition for Alien Relative Supplemental Information for Snouse Beneficiarv 1-130 1615-0012 T-130A 1615-0013 1-131 1615-0135 T-131A 1615-0015 1-140 1615-0016 1-191 1615-0017 1-192 1615-0018 1-212 1615-0095 I-290B 1615-0020 1-360 Application for Travel Document Application for Travel Document (Carrier Documentation) Immigrant Petition for Alien Worker Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) Application for Advance Permission to Enter as Nonimmiornnt Application for Permission to Reapply for Ad.Inission into the United States After Deportation or Removal Notice of Appeal or Motion Petition for Amerasian, Widow(er), or Suecial Immiimmt Application to Register Permanent Residence or Adjust Status Supplement A to Form 1-485, Adjustment of Status Under Section 245(i) Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(i) Application to Extend/Change Nonimmiornnt Status 1-485 I-485A khammond on DSKJM1Z7X2PROD with PROPOSALS2 1615-0023 I-485J 1615-0003 VerDate Sep<11>2014 20:56 Jan 03, 2023 1-539 Jkt 259001 Form Name Genealogy Records Request (For each microfilm or hard couv file) Request for a Certificate of NonExistence Application for Replacement/Initial Nonimmigrant Arrival-Denarture Document Petition for a Nonimmigrant Worker Petition for a CNMI-Only Nonimmigrant Transitional Worker Semiannual Report for CW-1 Worker PO 00000 Frm 00161 Fmt 4701 Sfmt 4725 Tvoe of PRA Action Revision of a Currently Annroved Collection Revision of a Currently Auuroved Collection Revision of a Currently Approved Collection Revision of a Currently Auproved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Auproved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Auproved Collection Revision of a Currently Approved Collection Revision of a Currently Approved Collection Revision of a Currently Approved Collection Revision of a Currently Approved Collection Revision of a Currently Auproved Collection Revision of a Currently Approved Collection Revision of a Currently Approved Collection E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.102</GPH> OMBNumber 562 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Table 35: Information Collection 1615-0027 Form Number I-566 I-600 I-600A 1615-0028 I-600/A Suppl 1-600/A Supp 2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 I-600/A Supp 3 VerDate Sep<11>2014 1615-0029 1-601 1615-0123 I-601A 1615-0069 I-602 1615-0030 I-612 1615-0032 I-690 1615-0035 I-698 1615-0038 I-751 1615-0040 I-765 1615-0137 l-765V 1615-0005 I-817 1615-0043 I-821 1615-0124 I-821D 1615-0044 I-824 1615-0046 I-854A 1615-0072 I-881 1615-0082 I-90 20:56 Jan 03, 2023 Jkt 259001 Form Name Intcragcncy Record of Request A, G or NATO Dependent Employment Authorization or Change/ Adjustment to/from A, G or NATO Status Petition to Classify Orphan as an Inunediate Relative Application for Advance Processing of an Orphan Petition Form I-600A/I-600 Supplement 1, Listing of Adult Member of the Household Fonn I-G00A/I-600 Supplement 2, Consent to Disclose Information Form I-600A/I-600 Supplement 3, Request for Action on Approved Fonn I-600A/I-600 Application for Waiver of Grounds ofTnadmissibilitv Application for Provisional Unlawful Presence Waiver Application by Refugee for Waiver of Grmmds of Inadmissibilitv Application for Waiver of the Foreign Residence Requirement (Under Section212(e) of the INA, as Amended) Application for Waiver of Grounds of Inadmissibilitv Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) Petition to Remove Conditions on Residence Application for Employment Authorization Application for Employment Authorization for Abused Nonimmigrant Spouse Application for Family Unity Benefits Application for Temporary Protected Status Consideration of Deferred Action for Childhood Arrivals Application for Action on an Annroved Annlication or Petition Inter-Agency Alien Witness and Infonnant Record Application for Suspension of Deportation or Special Rule Cancellation of Removal Application to Replace Permanent Resident Card PO 00000 Frm 00162 Fmt 4701 Sfmt 4725 Tvpe of PRA Action Revision of a Currently Approved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Aooroved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Aooroved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Aooroved Collection Revision of a Currently Annroved Collection No material or nonsubstantive change to a currently approved collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.103</GPH> 0MB Number Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 563 Table 35: Information Collection Form Number 1615-0048 1-907 1615-0114 1-910 1615-0116 1-912 1615-0099 1-914 1615-0104 1-918 1615-0106 1-929 1615-0136 1-941 1615-0050 N-336 1615-0052 N-400 1615-0056 N-470 1615-0091 N-565 1615-0057 N-600 1615-0087 N-600K 1615-0144 OMB-64 Application for Fee Waiver Application for T nonimmigrant status Application for U nonimmigrant status Petition for Qualifying Family Member of a U-1 Nonimmigrant Application for Entrepreneur Parole Request for a Hearing on a Decision in Naturalization Proceedin!!S Application for Naturalization Application to Preserve Residence for Naturalization Pumoses Application for Replacement of Naturalization/Citizenship Document Application for Certification of Citizenshin Application for Citizenship and Issuance of Certificate under Section 322. khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–C USCIS is consolidating all information related to Form fees, fee exemptions, and how to submit fee payments into Form G–1055, Fee Schedule. Most fee-related language, including language from sections What is the Filing Fee, How To Check If the Fees Are Correct, Fee Waiver, and Premium Processing content is being removed from individual Form Instructions documents, which results in a per-response hour burden reduction for many USCIS information collections and an overall total hour burden reduction for the USCIS information collection inventory. In accordance with the PRA, the information collection notice is published in the Federal Register and will include the proposed edits to the information collection instruments. This rulemaking will also require non-substantive edits to some USCIS information collections, which are VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Form Name Request for Premium Processing Service Application for Civil Surgeon Desi!ffiation indicated in Table 35 as ‘‘No material/ non-substantive change to a currently approved collection’’ in the Type of PRA Action column. The USCIS Form I–854A, Inter-Agency Alien Witness and Informant Record, edits include updating general instructions language. As stated previously in this preamble, DHS has recently created Forms I–526, Immigrant Petition by Alien Entrepreneur, and Form I–526E, Immigrant Petition by Regional Center Investor, Form I–956, Application for Regional Center Designation, Form I– 956F, Application for Approval of Investment in a Commercial Enterprise, Form I–956G, Regional Center Annual Statement, Form I–956H, Bona Fides of Persons Involved with Regional Center Program, and Form I–956K Registration for Direct and Third-Party Promoters, to implement the EB–5 Reform and Integrity Act of 2022. USCIS continues to use Form I–829, Petition by Investor to Remove Conditions on Permanent Frm 00163 Fmt 4701 Sfmt 4702 Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection Revision of a Currently Approved Collection Revision of a Currently Annroved Collection H-IB Registration Tool PO 00000 Tvue of PRA Action Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Revision of a Currently Annroved Collection Resident Status, to adjudicate requests from investors under the previous statute and regulations, and as authorized by the EB–5 Reform and Integrity Act of 2022. Those forms are not subject to the Paperwork Reduction Act. See Public Law 117–103, div. BB, sec. 106(d) (providing that for a 1-year period the requirements of the PRA do not apply to any collection of information required to implement the EB–5 Reform and Integrity Act of 2022). Thus, those forms are not discussed in this section although new fees are proposed for them in this rule. If the applicable forms are approved by OMB before the final rule is published, the final rule will be updated accordingly. USCIS Form G–1041; G1041A 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 E:\FR\FM\04JAP2.SGM 04JAP2 EP04JA23.104</GPH> OMBNumber khammond on DSKJM1Z7X2PROD with PROPOSALS2 564 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0096 in the body of the letter and the agency name. 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, for example, 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: Genealogy Index Search Request; Genealogy Records Request (For each microfilm or hard copy file). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: G–1041; G– 1041A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. The Genealogy Program is necessary to provide a more timely response to requests for genealogical and historical records. Form G–1041 is provided as a convenient means for persons to provide data necessary to perform a search of historical agency indices. Form G–1041A provides a convenient means for persons to identify a particular record desired under the Genealogy Program. The forms provide rapid identification of such requests and ensures expeditious handling. Persons such as researchers, historians, and social scientists seeking ancestry information for genealogical, family history and their location purposes will use Forms G–1041 and G– 1041A. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (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 Form G–1041 is 3,847 and the estimated hour burden per response is 0.317 hours; the estimated total number of respondents for Form G–1041A is 2,920 and the estimated hour burden per response is 0.317 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 2,146 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $25,376. USCIS Form G–1566 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 information collection instrument. 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 1615–0156 in the body of the letter and the agency name. 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, for example, permitting electronic submission of responses. Overview of information collection: (1) Type of Information Collection: Revision of a Currently Approved Collection. PO 00000 Frm 00164 Fmt 4701 Sfmt 4702 (2) Title of the Form/Collection: Request for a Certificate of NonExistence. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: G–1566; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS will use the information collected on Form G–1566 to determine whether any immigration records about the subject of record listed on the form exist. If no records about the subject of record exist, USCIS will provide a Certificate of Nonexistence. If USCIS finds records related to the subject of record, a Certificate of NonExistence will not be issued, but the requestor will be notified that records were found. (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 G–1566 is 2,000 and the estimated hour burden per response is 0.5 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 1,000 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $122,000. USCIS Form I–102 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 information collection instrument. 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 1615–0079 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 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, for example, 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: Application for Replacement/Initial Nonimmigrant Arrival/Departure Document. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–102; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Nonimmigrants temporarily residing in the United States can use this form to request a replacement of a lost, stolen, or mutilated Form I–94, Arrival/Departure Record, or to request a new Arrival/Departure Record, if one was not issued when the nonimmigrant was last admitted but the nonimmigrant is now in need of such a record. USCIS uses the information provided by the requester to verify eligibility, as well as his or her status, process the request, and issue a new or replacement Arrival/ Departure Record. If the application is approved, USCIS will issue a Form I–94, Arrival/Departure Record. (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 Form I–102 is 4,100 and the estimated hour burden per response is 0.567 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 2,325 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $1,182,440. USCIS Form I–129 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 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0009 in the body of the letter and the agency name. 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, for example, 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: Petition for a Nonimmigrant Worker. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–129; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit; Not-for-profit institutions. USCIS uses the data collected on this form to determine the eligibility of a business to petition for a nonimmigrant worker to come to the United States temporarily to perform services or labor, or to receive training, as an H–1B, H–2A, H–2B, H– 3, L–1, O–1, O–2, P–1, P–1S, P–2, P–2S, P–3, P–3S, Q–1, or R–1 nonimmigrant worker. Petitioners may also use this form to request an extension of stay in or change of status to E–1, E–2, E–3, H– 1B1 or TN, or one of the above classifications for an alien. (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 Form I–129 is 572,606 and the estimated hour burden per response is 2.157 hours; the estimated total PO 00000 Frm 00165 Fmt 4701 Sfmt 4702 565 number of respondents for the information collection E–1/E–2 Classification Supplement is 12,050 and the estimated hour burden per response is 0.67; the estimated total number of respondents for the information collection Trade Agreement Supplement to Form I–129 is 12,945 and the estimated hour burden per response is 0.67; the estimated total number of respondents for the information collection H Classification Supplement to Form I–129 is 471,983 and the estimated hour burden per response is 2; the estimated total number of respondents for the information collection H–1B and H–1B1 Data Collection and Filing Fee Exemption Supplement is 398,936 and the estimated hour burden per response is 1; the estimated total number of respondents for the information collection L Classification Supplement to Form I–129 is 40,358 and the estimated hour burden per response is 1.34; the estimated total number of respondents for the information collections O and P Classifications Supplement to Form I–129 is 28,434 and the estimated hour burden per response is 1; the estimated total number of respondents for the information collection Q–1 Classification Supplement to Form I– 129 is 54 and the estimated hour burden per response is 0.34; the estimated total number of respondents for the information collection R–1 Classification Supplement to Form I– 129 is 6,782 and the estimated hour burden per response is 2.34. (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 2,693,162 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $294,892,090. USCIS Form I–129CW; I–129CWR 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 information collection instrument. 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 1615–0079 in the body of the letter and the agency E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 566 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules name. 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, for example, 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: Petition for a CNMI-Only Nonimmigrant Transitional Worker; Semiannual Report for CW–1 Workers. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–129CW; I– 129CWR; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business and other for-profit. USCIS uses the data collected on Form I–129CW to determine eligibility for the requested immigration benefits. An employer uses Form I– 129CW to petition USCIS for a noncitizen to temporarily enter as a nonimmigrant into the CNMI to perform services or labor as a CW–1 worker. An employer also uses Form I–129CW to request an extension of stay or change of status on behalf of the noncitizen worker. Form I–129CW serves the purpose of standardizing requests for these benefits and ensuring that the basic information required to determine eligibility is provided by the petitioners. Form I–129CWR, Semiannual Report for CW–1 Employers, is used by employers to comply with the reporting requirements imposed by the Workforce Act. Form I–129CWR captures data USCIS requires to help verify the continuing employment and payment of the CW–1 worker. DHS may provide such semiannual reports to other Federal partners, including the U.S. Department of Labor (DOL) for investigative or other use as DOL may deem appropriate. Congress expressly VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 provided for these semiannual reports to be shared with DOL. 48 U.S.C. 1806(d)(3)(D)(ii). (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 Form I–129CW is 5,975 and the estimated hour burden per response is 3.317 hours; the estimated total number of respondents for the information collection Form I–129CWR is 5,975 and the estimated hour burden per response is 2.5 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 34,757 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $3,809,063. USCIS Form I–129F 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 information collection instrument. 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 1615–0001 in the body of the letter and the agency name. 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, for example, permitting electronic submission of responses. Overview of information collection: PO 00000 Frm 00166 Fmt 4701 Sfmt 4702 (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: Petition for Alien fiancé´(e). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–129F; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and Households. Form I–129F must be filed with U.S. Citizenship and Immigration Services (USCIS) by a citizen of the United States in order to petition for an alien spouse, fiancé´(e), or child. (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 Form I–129F is 47,700 and the estimated hour burden per response is 3.067 hours; the estimated total number of respondents for biometrics processing is 47,700 and the estimated hour burden per response is 1.17 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 202,105 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $5,412,004. USCIS Form I–129S 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 information collection instrument. 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 1615–0010 in the body of the letter and the agency name. 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; E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (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, for example, 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: Nonimmigrant Petition Based on Blanket L Petition. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–129S; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. Employers seeking to classify employees outside the United States as executives, managers, or specialized knowledge professionals, as nonimmigrant intra-company transferees pursuant to a previously approved blanket petition under sections 214(c)(2) and 101(a)(15)(L) of the Act, may file this form. USCIS uses the information provided through this form to assess whether the employee meets the requirements for L–1 classification under blanket L petition approval. Submitting this information to USCIS is voluntary. USCIS may provide the information provided through this form to other Federal, State, local, and foreign government agencies and authorized organizations, and may also be made available, as appropriate, for law enforcement purposes or in the interest of national security. (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 Form I–129S is 75,000 and the estimated hour burden per response is 2.817 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 211,275 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $36,750,000. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 USCIS Form I–130; I–130A 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 information collection instrument. 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 1615–0012 in the body of the letter and the agency name. 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, for example, 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: Petition for Alien Relative; Supplemental Information for Spouse Beneficiary. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–130; I– 130A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Form I–130 allows U.S. citizens or lawful permanent residents of the United States to petition on behalf of certain alien relatives who wish to immigrate to the United States. Form I– 130A allows for the collection of additional information for spouses of the petitioners necessary to facilitate a decision. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to PO 00000 Frm 00167 Fmt 4701 Sfmt 4702 567 respond: The estimated total number of respondents for the information collection Form I–130 paper filing is 437,500 and the estimated hour burden per response is 1.817 hours; the estimated total number of respondents for the information collection Form I– 130A is 40,775 and the estimated hour burden per response is 0.833 hours; and the estimated total number of respondents for the information collection Form I–130 online filing is 437,500 and the estimated hour burden per response is 1.5 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 1,485,154 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $350,000,000. USCIS Form I–131 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 information collection instrument. 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 1615–0013 in the body of the letter and the agency name. 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, for example, permitting electronic submission of responses. Overview of information collection: E:\FR\FM\04JAP2.SGM 04JAP2 568 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: Application for Travel Document, Form I–131; Extension, Without Change, of a Currently Approved Collection. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–131; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Certain noncitizens, principally permanent or conditional residents, refugees or asylees, applicants for adjustment of status, noncitizens in TPS, DACA recipients, and noncitizens abroad seeking humanitarian parole who need to apply for a travel document to lawfully enter or re-enter the United States. Lawful permanent residents may now file requests for travel permits (transportation letter or boarding foil). (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 I–131 is 483,920 and the estimated hour burden per response is 1.717 hours; the estimated total number of respondents for biometrics processing is 84,000 and the estimated hour burden per response is 1.17 hours, the estimated total number of respondents for passport-style photos is 380,000 and the estimated hour burden per response is 0.5 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 1,119,171 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $146,072,480. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–131A 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 information collection instrument. 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 1615–0135 in the body of the letter and the agency name. Comments on this information VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 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, for example, 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: Application for Carrier Documentation. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–131A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS uses the information provided on Form I–131A to verify the status of permanent or conditional residents and determine whether the applicant is eligible for the requested travel document. (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 Form I–131A is 5,100 and the estimated hour burden per response is 0.837 hours; biometrics processing is 5,100 and the estimated hour burden per response is 1.17 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 10,236 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $919,275. USCIS Form I–140 DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance PO 00000 Frm 00168 Fmt 4701 Sfmt 4702 with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0015 in the body of the letter and the agency name. 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, for example, 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: Immigrant Petition for Alien Workers. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–140; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit; Not-for-profit institutions. The information collected on this form will be used by USCIS to determine eligibility for the requested immigration benefits under section 203(b)(1), 203(b)(2), or 203(b)(3) of the Immigration and Nationality Act. (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 Form I–140 is 143,000 and the estimated hour burden per response is 0.897 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 128,223 hours. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $62,598,250. USCIS Form I–191 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 information collection instrument. 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 1615–0016 in the body of the letter and the agency name. 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, for example, 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: Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–191; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS and EOIR use the information on the form to properly assess and determine whether the applicant is eligible for a waiver under former section 212(c) of INA. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 respond: The estimated total number of respondents for the information collection Form I–191 is 116 and the estimated hour burden per response is 1.567 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 182 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $59,740. USCIS Form I–192 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 information collection instrument. 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 1615–0017 in the body of the letter and the agency name. 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, for example, 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: Application for Advance Permission to Enter as Nonimmigrant (Pursuant to Section 212(d)(3)(A)(ii) of the INA). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–192; USCIS. PO 00000 Frm 00169 Fmt 4701 Sfmt 4702 569 (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. The data collected will be used by CBP and USCIS to determine whether the applicant is eligible to enter the United States temporarily under the provisions of section 212(d)(3), 212(d)(13), and 212(d)(14) of the INA. The respondents for this information collection are certain inadmissible nonimmigrant aliens who wish to apply for permission to enter the United States and applicants for T nonimmigrant status or petitioners for U nonimmigrant status. CBP has developed an electronic filing system, called Electronic Secured Adjudication Forms Environment (eSAFE), through which Form I–192 can be submitted when filed with CBP. (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 Form I–192 is 61,050 and the estimated hour burden per response is 1.317 hours; the estimated total number of respondents for the information collection e-SAFE is 7,000 and the estimated hour burden per response is 1.25 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 89,153 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $17,522,875. USCIS Form I–212 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 information collection instrument. 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 1615–0018 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 570 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 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, for example, 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: Application for Permission to Reapply for Admission into the United States After Deportation or Removal. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–212; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS uses the data collected on Form I–212 to determine whether an alien is eligible for and should be granted the benefit of consent to reapply for admission into the United States. This form standardizes requests for consent to reapply and its data collection requirements ensure that, when filing the application, the alien provides the basic information that is required to assess eligibility for consent to reapply. (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 Form I–212 paper filing is 7,000 and the estimated hour burden per response is 1.817 hours. The estimated total number of respondents for the information collection I–212 (online filing via CBP e-SAFE) is 1,200 and the estimated hour burden per response is 1.817 hours. The estimated total number of respondents for the information collection biometric submission is 350 and the estimated hour burden per response is 1.17 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 15,309 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $370,650. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 USCIS Form I–290B 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 information collection instrument. 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 1615–0095 in the body of the letter and the agency name. 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, for example, 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: Notice of Appeal or Motion. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–290B; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Form I–290B standardizes requests for appeals and motions and ensures that the basic information required to adjudicate appeals and motions is provided by applicants and petitioners, or their attorneys or representatives. USCIS uses the data collected on Form I–290B to determine whether an applicant or petitioner is eligible to file an appeal or motion, whether the requirements of an appeal or motion have been met, and whether the applicant or petitioner is eligible for the requested immigration benefit. Form PO 00000 Frm 00170 Fmt 4701 Sfmt 4702 I–290B can also be filed with ICE by schools appealing decisions on Form I– 17 filings for certification to ICE’s Student and Exchange Visitor Program (SEVP). (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 Form I–290B is 28,000 and the estimated hour burden per response is 1.317 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 36,876 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $8,652,000. USCIS Form I–360 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 information collection instrument. 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 1615–0020 in the body of the letter and the agency name. 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, for example, permitting electronic submission of responses. Overview of information collection: (1) Type of Information Collection: Revision of a Currently Approved Collection. E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (2) Title of the Form/Collection: Petition for Amerasian, Widow(er), or Special Immigrant. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–360; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The Form I–360 may be used by an Amerasian; a widow or widower; a battered or abused spouse or child of a U.S. citizen or lawful permanent resident; a battered or abused parent of a U.S. citizen son or daughter; or a special immigrant (religious worker, Panama Canal company employee, Canal Zone government employee, U.S. Government employee in the Canal Zone; physician, international organization employee or family member, juvenile court dependent; armed forces member; Afghanistan or Iraq national who supported the U.S. Armed Forces as a translator; Iraq national who worked for the or on behalf of the U.S. Government in Iraq; or Afghan national who worked for or on behalf of the U.S. Government or the International Security Assistance Force [ISAF] in Afghanistan) who intend to establish their eligibility to immigrate to the United States. The data collected on this form is reviewed by U.S. Citizenship and Immigration Services (USCIS) to determine if the petitioner may be qualified to obtain the benefit. The data collected on this form will also be used to issue an employment authorization document upon approval of the petition for battered or abused spouses, children, and parents, if requested. (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 Petition for Amerasian, Widower, or Special Immigration (Form I–360): Iraqi & Afghan Petitioners is 1,916 and the estimated hour burden per response is 2.917 hours; the estimated total number of respondents for the information collection Petition for Amerasian, Widower, or Special Immigration (Form I–360): Religious Workers is 2,393 and the estimated hour burden per response is 2.167 hours; the estimated total number of respondents for the information collection Petition for Amerasian, Widower, or Special Immigration (Form I–360): All Others is 14,362 and the estimated hour burden per response is 1.917 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 hour burden associated with this collection is 38,307 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $2,287,320. USCIS Form I–485; I–485A; I–485J 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 information collection instrument. 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 1615–0023 in the body of the letter and the agency name. 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, for example, 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: Application to Register Permanent Residence or Adjust Status; Supplement A to Form I–485, Adjustment of Status Under Section 245(i); Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–485; I– 485A; I–485J; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Form I–485 is used by all applicants seeking to adjust status to PO 00000 Frm 00171 Fmt 4701 Sfmt 4702 571 lawful permanent resident under INA section 245(a). Supplement A to Form I– 485 is used by a subset of applicants seeking to adjust status under INA section 245(i). Supplement J is used by applicants whose adjustment of status is based on an approved employmentbased immigrant visa petition that requires a job offer. (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 Form I–485 is 690,837 and the estimated hour burden per response is 7.087 hours; the estimated total number of respondents for the information collection Form I–485A is 29,213 and the estimated hour burden per response is 1.067 hours; the estimated total number of respondents for the information collection Form I– 485J is 37,358 and the estimated hour burden per response is 0.917; the estimated total number of respondents for the information collection biometrics submission is 690,837 and the estimated hour burden per response is 1.17. (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 5,700,585 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $1,093,101,980. USCIS Form I–539; I–539A 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 information collection instrument. 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 1615–0003 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 572 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 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, for example, 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: Application to Extend/Change Nonimmigrant Status; Supplement A to Form I–539A. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–539; I– 539A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. This form is used by nonimmigrants to apply for an extension of stay, for a change to another nonimmigrant classification, or to obtain V nonimmigrant 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 Form I–539 (paper) is 174,289 and the estimated hour burden per response is 1.817 hours, the estimated total number of respondents for the information collection I–539 (electronic) is 74,696 and the estimated hour burden per response is 1.083 hours; and the estimated total number of respondents for the information collection I–539A is 54,375 and the estimated hour burden per response is 0.5 hours; biometrics processing is 186,738 total respondents requiring an estimated 1.17 hours per response. (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 643,250 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $42,700,928. USCIS Form I–566 DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0027 in the body of the letter and the agency name. 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, for example, 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: Interagency Record of Request—A, G or NATO Dependent Employment Authorization or Change/Adjustment to/ from A, G or NATO Status. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–566; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The data on this form is used by Department of State (DOS) to certify to USCIS eligibility of dependents of A or G principals requesting employment authorization, as well as for NATO/Headquarters, Supreme Allied Commander Transformation (NATO/HQ SACT) to certify to USCIS similar eligibility for dependents of NATO principals. DOS also uses this form to certify to USCIS that certain A, G, or NATO nonimmigrants may change their status to another nonimmigrant status. USCIS, on the other hand, uses data on this form in the adjudication of change or adjustment of status applications from aliens in A, G, or NATO classifications PO 00000 Frm 00172 Fmt 4701 Sfmt 4702 and following any such adjudication informs DOS of the results by use of this form. The information provided on this form continues to ensure effective interagency communication among the three governmental departments—the Department of Homeland Security (DHS), DOS, and the Department of Defense (DOD)—as well as with NATO/ HQ SACT. These departments and organizations utilize this form to facilitate the uniform collection and review of information necessary to determine an alien’s eligibility for the requested immigration benefit. This form also ensures that the information collected is communicated among DHS, DOS, DOD, and NATO/HQ SACT regarding each other’s findings or actions. (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 Form I–566 is 5,800 and the estimated hour burden per response is 1.337 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 7,755 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $710,500. USCIS Form I–600; I–600A; Supplement 1; Supplement 2; Supplement 3 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 information collection instrument. 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 1615–0028 in the body of the letter and the agency name. 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; E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (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, for example, 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: Petition to Classify Orphan as an Immediate Relative; Application for Advance Processing of an Orphan Petition; Supplement 1, Listing of an Adult Member of the Household; Supplement 2, Consent to Disclose Information; and Supplement 3, Request for Action on Approved Form I–600A/ I–600. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: Form I–600, Form I–600A, Form I–600A/I–600 Supplement 1, Form I–600A/I–600 Supplement 2, Form I–600A/I–600 Supplement 3; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. A U.S. citizen adoptive parent may file a petition to classify an orphan as an immediate relative through Form I–600 under section 101(b)(1)(F) of the INA. A U.S. citizen prospective adoptive parent may file Form I–600A in advance of the Form I–600 filing and USCIS will determine the prospective adoptive parent’s eligibility to file Form I–600A and their suitability and eligibility to properly parent an orphan. If there are other adult members of the U.S. citizen prospective/adoptive parent’s household, as defined at 8 CFR 204.301, the prospective/adoptive parent must include Form I–600A/I–600 Supplement 1 when filing both Form I– 600A and Form I–600. A Form I–600A/ I–600 Supplement 2, Consent to Disclose Information, is an optional form that a U.S. citizen prospective/ adoptive parent may file to authorize USCIS to disclose case-related information that would otherwise be protected under the Privacy Act, 5 U.S.C. 552a, to adoption service providers or other individuals. Form I– 600A/I–600 authorized disclosures will assist USCIS in the adjudication of Forms I–600A and I–600. USCIS has created a new Form I–600A/I–600 Supplement 3, Request for Action on Approved Form I–600A/I–600, for this VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 information collection. Form I–600A/I– 600 Supplement 3 is a form that prospective/adoptive parents must use if they need to request action such as an extended suitability determination; updated suitability determination based upon a significant change in their circumstances or change in the number or characteristics of the children they intend to adopt or a change in their intended country of adoption; or a request for a duplicate notice of their approved Form I–600A suitability determination. (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 Form I–600 is 1,200 and the estimated hour burden per response is 0.817 hours; the estimated total number of respondents for the information collection Form I–600A is 2,000 and the estimated hour burden per response is 0.817 hours; the estimated total number of respondents for the information collection Form I–600/I–600A Supplement 1 is 301 and the estimated hour burden per response is 1 hour; the estimated total number of respondents for the information collection Form I– 600/I–600A Supplement 2 is 1,260 and the estimated hour burden per response is 0.25 hours; the estimated total number of respondents for the information collection Form I–600/I– 600A Supplement 3 is 1,286 and the estimated hour burden per response is 1 hours; the estimated total number of respondents for the Home Study information collection is 2,500 and the estimated hour burden per response is 25 hours; the estimated total number of respondents for the Biometrics information collection is 2,520 and the estimated hour burden per response is 1.17 hours; the estimated total number of respondents for the Biometrics—DNA information collection is 2 and the estimated hour burden per response is 6 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 69,977 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $7,759,232. USCIS Form I–601 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 PO 00000 Frm 00173 Fmt 4701 Sfmt 4702 573 collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0029 in the body of the letter and the agency name. 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, for example, 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: Application for Waiver of Grounds of Inadmissibility. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–601; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Form I–601 is necessary for USCIS to determine whether the applicant is eligible for a waiver of inadmissibility under section 212 of the Act. Furthermore, this information collection is used by individuals who are seeking Temporary Protected Status (TPS). (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 Form I–601 is 17,000 and the estimated hour burden per response is 1.567 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 26,639 hours. E:\FR\FM\04JAP2.SGM 04JAP2 574 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $6,311,250. USCIS Form I–601A 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 information collection instrument. 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 1615–0123 in the body of the letter and the agency name. 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, for example, 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: Application for Provisional Unlawful Presence Waiver. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–601A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA or the Act) provides for the inadmissibility of certain individuals who have accrued unlawful presence in the United States. There is also a waiver provision incorporated into section 212(a)(9)(B)(v) VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 of the Act, which allows the Secretary of Homeland Security to exercise discretion to waive the unlawful presence grounds of inadmissibility on a case-by-case basis. The information collected from an applicant on an Application for Provisional Unlawful Presence Waiver of Inadmissibility, Form I–601A, is necessary for U.S. Citizenship and Immigration Services (USCIS) to determine not only whether the applicant meets the requirements to participate in the streamlined waiver process provided by regulation, but also whether the applicant is eligible to receive the provisional unlawful presence waiver. (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 Form I–601A is 63,000 and the estimated hour burden per response is 1.317 hours: the estimated total number of respondents for the collection of biometrics is 63,000 and the estimated hour burden per response is 1.17 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 156,681 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $3,212,390. USCIS Form I–602 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 information collection instrument. 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 1615–0069 in the body of the letter and the agency name. 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; PO 00000 Frm 00174 Fmt 4701 Sfmt 4702 (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, for example, 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: Application by Refugee for Waiver of Grounds of Excludability. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–602; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The data collected on the Application by Refugee for Waiver of Inadmissibility Grounds, Form I–602, will be used by USCIS to determine eligibility for waivers, and to report to Congress the reasons for granting waivers. (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 Form I–602 is 240 and the estimated hour burden per response is 7.917 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 1,900 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $30,900. USCIS Form I–612 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 information collection instrument. 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 1615–0030 in the body of the letter and the agency name. Comments on this information E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 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, for example, 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: Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–612; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. This information collection is necessary and may be submitted only by an alien who believes that compliance with foreign residence requirements would impose exceptional hardship on his or her spouse or child who is a citizen of the United States, or a lawful permanent resident; or that returning to the country of his or her nationality or last permanent residence would subject him or her to persecution on account of race, religion, or political opinion. Certain aliens admitted to the United States as exchange visitors are subject to the foreign residence requirements of section 212(e) of the Immigration and Nationality Act (the Act). Section 212(e) of the Act also provides for a waiver of the foreign residence requirements in certain instances. (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 Form I–612 is 7,200 and the estimated hour burden per response is 0.15 hours. (6) An estimate of the total public burden (in hours) associated with the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 collection: The total estimated annual hour burden associated with this collection is 1,080 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $882,000. USCIS Form I–690; Supplement A 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 information collection instrument. 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 1615–0032 in the body of the letter and the agency name. 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, for example, 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: Application for Waiver of Grounds of Inadmissibility; Supplement A: Applicants with a Class A Tuberculosis Condition (As Defined by HHS Regulations). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–690; Supplement A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Applicants for lawful permanent residence under INA PO 00000 Frm 00175 Fmt 4701 Sfmt 4702 575 sections 210 or 245A who are inadmissible under certain grounds of inadmissibility at INA section 212(a) would use Form I–690 to seek a waiver of inadmissibility. USCIS uses the information provided through Form I– 690 to adjudicate waiver requests from individuals who are inadmissible to the United States. Based upon the instructions provided, a respondent can gather and submit the required documentation to USCIS for consideration of an inadmissibility waiver. (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 Form I–690 is 30 and the estimated hour burden per response is 2.817 hours; the estimated total number of respondents for the information collection Supplement A is 11 and the estimated hour burden per response is 2 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 107 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $4,523. USCIS Form I–698 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 information collection instrument. 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 1615–0035 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 576 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (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, for example, 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: Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–698; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The data collected on Form I–698 is used by USCIS to determine the eligibility to adjust an applicant’s residence status. (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 Form I–698 is 100 and the estimated hour burden per response is 1.067 hours; the estimated total number of respondents for biometrics processing is 100 and the estimated hour burden per response is 1.17 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 224 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $49,000. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–751 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 information collection instrument. 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 1615–0038 in the body of the letter and the agency name. Comments on this information collection should address one or more of the following four points: VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (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, for example, 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: Petition to Remove Conditions on Residence. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–751; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The information collected on Form I–751 is used by U.S. Citizenship and Immigration Services (USCIS) to verify the alien’s status and determine whether he or she is eligible to have the conditions on his or her status removed. Form I–751 serves the purpose of standardizing requests for benefits and ensuring that basic information required to assess eligibility is provided by petitioners. (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 Form I–751 is 153,000 and the estimated hour burden per response is 4.387 hours; the estimated total number of respondents for the information collection biometrics is 306,000 and the estimated hour burden per response is 1.17 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 1,029,231 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $19,698,750. PO 00000 Frm 00176 Fmt 4701 Sfmt 4702 USCIS Form I–765; I–765WS 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 information collection instrument. 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 1615–0040 in the body of the letter and the agency name. 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, for example, 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: Application for Employment Authorization; I–765 Worksheet. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–765; I– 765WS; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS uses Form I–765 to collect information needed to determine if a noncitizen is eligible for an initial EAD, a new replacement EAD, or a subsequent EAD upon the expiration of a previous EAD under the same eligibility category. Noncitizens in many immigration statuses are required to possess an EAD as evidence of work authorization. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 respond: The estimated total number of respondents for the information collection I–765 paper filing is 1,830,347 and the estimated hour burden per response is 4.317 hours; the estimated total number of respondents for the information collection I–765 online filing is 455,653 and the estimated hour burden per response is 4 hours; the estimated total number of respondents for the information collection I–765WS is 302,000 and the estimated hour burden per response is 0.5 hours; the estimated total number of respondents for the information collection biometrics submission is 302,535 and the estimated hour burden per response is 1.17 hours; the estimated total number of respondents for the information collection passport photos is 2,286,000 and the estimated hour burden per response is 0.5 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 11,372,186 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $400,895,820. USCIS Form I–765V 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 information collection instrument. 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 1615–0137 in the body of the letter and the agency name. 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 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, 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: Application for Employment Authorization for Abused Nonimmigrant Spouse. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–765V; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. U.S. Citizenship and Immigration Services (USCIS) will use Form I–765V, Application for Employment Authorization for Abused Nonimmigrant Spouse, to collect the information that is necessary to determine if the applicant is eligible for an initial EAD or renewal EAD as a qualifying abused nonimmigrant spouse. Aliens are required to possess an EAD as evidence of work authorization. To be authorized for employment, an alien must be lawfully admitted for permanent residence or authorized to be so employed by the INA or under regulations issued by DHS. Pursuant to statutory or regulatory authorization, certain classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. USCIS may determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. USCIS also collects biometric information from EAD applicants to verify the applicant’s identity, check or update their background information, and produce the EAD card. (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 Form I–765V is 350 and the estimated hour burden per response is 3.567 hours; the estimated total number of respondents for the information collection biometric submission is 350 and the estimated hour burden per response is 1.17 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual PO 00000 Frm 00177 Fmt 4701 Sfmt 4702 577 hour burden associated with this collection is 1,658 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $87,500. USCIS Form I–817 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 information collection instrument. 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 1615–0005 in the body of the letter and the agency name. 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, for example, 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: Application for Benefits Under the Family Unity Program Application. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–817; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The information collected will be used to determine whether the applicant meets the eligibility requirements for benefits under 8 CFR 236.14 and 245a.33. (5) An estimate of the total number of respondents and the amount of time E:\FR\FM\04JAP2.SGM 04JAP2 578 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules estimated for an average respondent to respond: The estimated total number of respondents for the information collection Form I–817 is 1,000 and the estimated hour burden per response is 1.817 hours; the estimated number of respondents providing biometrics is 1,000 and the estimated hour burden per response is 1.17 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 2,987 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $122,500. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–821 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 information collection instrument. 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 1615–0043 in the body of the letter and the agency name. 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, for example, 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: Application for Temporary Protected Status. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–821; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Form I–821 used by USCIS to gather information necessary to determine if an applicant is eligible for Temporary Protected Status. (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 Form I–821 (paper filed) is 453,600 and the estimated hour burden per response is 2.227 hours; the estimated total number of respondents for the information collection Form I– 821 (online filed) is 113,400 and the estimated hour burden per response is 1.92 hours; the estimated total number of respondents for the information collection Biometrics Submission is 567,000 and the estimated hour burden per response is 1.17 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 1,891,285 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $69,457,500. USCIS Form I–821D 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 information collection instrument. 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 1615–0124 in the body of the letter and the agency name. 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; PO 00000 Frm 00178 Fmt 4701 Sfmt 4702 (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, for example, 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: Consideration of Deferred Action for Childhood Arrivals. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: Form I–821D; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. As part of the administration of its programs, certain noncitizens may use this form to request that USCIS exercise its prosecutorial discretion on a case-by-case basis to defer action in their case. (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 I–821D Initial Request (paper) is 112,254 and the estimated hour burden per response is 2.817 hours. The estimated total number of respondents for the information collection I–821D Renewal Request (paper) is 221,167 and the estimated hour burden per response is 2.817 hours. The estimated total number of respondents for the information collection I–821D Renewal Request (Online) is 55,292 and the estimated hour burden per response is 2.482 hours. The estimated total number of respondents for the information collection I–821D Biometrics submission is 388,713 and the estimated hour burden per response is 1.17 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 1,531,259 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $33,040,605. USCIS Form I–824 DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 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 information collection instrument. 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 1615–0044 in the body of the letter and the agency name. 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, for example, 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: Application for Action on an Approved Application. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–824; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. This information collection is used to request a duplicate approval notice, as well as to notify and to verify with the U.S. Consulate that a petition has been approved or that a person has been adjusted to permanent resident status. (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 Form I–824 is 10,571 and the estimated hour burden per response is 0.237 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 hour burden associated with this collection is 2,505 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $1,361,016. USCIS Form I–881 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 information collection instrument. 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 1615–0072 in the body of the letter and the agency name. 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, for example, 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: Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Sec. 203 of Pub. L. 105–100). (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–881; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The data collected on the Form I–881 is used by Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) asylum officers, Department of PO 00000 Frm 00179 Fmt 4701 Sfmt 4702 579 Justice (DOJ), EOIR immigration judges, and Board of Immigration Appeals board members. The Form I–881 is used to determine eligibility for suspension of deportation or special rule cancellation of removal under Section 203 of NACARA. The form serves the purpose of standardizing requests for the benefits and ensuring that basic information required for assessing eligibility is provided by the applicants. (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 Form I–881 is 520 and the estimated hour burden per response is 11.817 hours; the estimated total number of respondents for the information collection Biometrics Submission is 858 and the estimated hour burden per response is 1.17 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 7,149 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $258,505. USCIS Form I–90 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 information collection instrument. 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 1615–0082 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 580 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, 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: Application to Replace Permanent Resident Card. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–90; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Form I–90 is used by USCIS to determine eligibility to replace a Lawful Permanent Resident Card. (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 Form I–90 (paper filed) is 444,601 and the estimated hour burden per response is 1.817 hours; the estimated total number of respondents for the information collection I–90 (electronic) is 296,400 and the estimated hour burden per response is 1.59 hours; and the estimated total number of respondents for the information collection biometrics is 741,001 and the estimated hour burden per response is 1.17 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with Form I–90 is 2,146,087 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $254,163,343. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–907 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 information collection instrument. 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 1615–0048 in the body of the letter and the agency name. Comments on this information VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 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, for example, 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: Request for Premium Processing Service. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–907; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. USCIS uses the data collected through this form to process a request for premium processing. The form serves the purpose of standardizing requests for premium processing and will ensure that basic information required to assess eligibility is provided by the employers/ petitioners. (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 Form I–907 is 815,773 and the estimated hour burden per response is 0.397 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 323,862 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $202,923,534. USCIS Form I–910 DHS and USCIS invite the general public and other Federal agencies to PO 00000 Frm 00180 Fmt 4701 Sfmt 4702 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 information collection instrument. 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 1615–0114 in the body of the letter and the agency name. 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, for example, 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: Application for Civil Surgeon Designation. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–910; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Businesses or nonprofits. This information collection is required to determine whether a physician meets the statutory and regulatory requirements for civil surgeon designation. For example, all documents are reviewed to determine whether the physician has a currently valid medical license and whether the physician has had any disciplinary action taken against him or her by the medical licensing authority of the U.S. state(s) or U.S. territories in which he or she practices. If the Application for Civil Surgeon Designation (Form I–910) is approved, the physician is included in USCIS’s public Civil Surgeon Locator and is authorized to complete Form I– E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 693 (OMB Control Number 1615–0033) for an applicant’s adjustment of status. (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 I–910 is 470 and the estimated hour burden per response is 1.817 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 854 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $24,205. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–912 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 information collection instrument. 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 1615–0116 in the body of the letter and the agency name. 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, for example, 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: Application for Fee Waiver. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–912; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. USCIS uses the data collected on this form to verify that the applicant is unable to pay for the immigration benefit being requested. USCIS will consider waiving a fee for an application or petition when the applicant or petitioner demonstrates that they are unable to pay the fee. Form I–912 standardizes the collection and analysis of statements and supporting documentation provided by the applicant with the fee waiver request. Form I–912 also streamlines and expedites USCIS’ review, approval, or denial of the fee waiver request by clearly laying out the most salient data and evidence necessary for the determination of inability to pay. Officers evaluate all factors, circumstances, and evidence supplied in support of a fee waiver request when making a final determination. Each case is unique and is considered on its own merits. If the fee waiver is granted, the application will be processed. If the fee waiver is not granted, USCIS will notify the applicant and instruct them to file a new application with the appropriate fee. (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 Form I–912 is 602,400 and the estimated hour burden per response is 1.17. The estimated total number of respondents for the information collection 8 CFR 103.7(d) Director’s Exception Request is 128 and the estimated hour burden per response is 1.17. (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 704,958 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $2,259,480. USCIS Form I–914; I–914A; I–914B 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 information collection instrument. PO 00000 Frm 00181 Fmt 4701 Sfmt 4702 581 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 1615–0099 in the body of the letter and the agency name. 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, for example, 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: Application for T nonimmigrant status; Supplement A, Application for Family Member of T–1 Recipient; Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–914; I– 914A; I–914B; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households; Federal Government; State, local or Tribal Government. The information on all three parts of the form will be used to determine whether applicants meet the eligibility requirements for benefits. This application incorporates information pertinent to eligibility under the Victims of Trafficking and Violence Protection Act (VTVPA), Public Law 106–386, and a request for employment authorization. (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 Form I–914 is 1,310 and the estimated hour burden per response is 2.63 hours; the estimated total number of respondents for the information E:\FR\FM\04JAP2.SGM 04JAP2 582 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules collection Form I–914A is 1,120 and the estimated hour burden per response is 1.083 hour; the estimated total number of respondents for the information collection Form I–914B Law Enforcement Officer completion activity is 459 and the estimated hour burden per response is 3.58 hour; the estimated total number of respondents for the information collection Form I–914B Contact by Respondent to Law Enforcement is 459 and the estimated hour burden per response is 0.25 hour; the estimated total number of respondents for the information collection biometrics submission is 2,430 and the estimated hour burden per response is 1.17 hour. (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 9,259 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $0. khammond on DSKJM1Z7X2PROD with PROPOSALS2 USCIS Form I–918; I–918A; I–918B 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 information collection instrument. 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 1615–0104 in the body of the letter and the agency name. 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, VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 for example, 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: Application for U Nonimmigrant Status; Supplement A, Petition for Qualifying Family Member of a U–1 Recipient; Supplement B, U Nonimmigrant Status Certification. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–918; I– 918A; I–918B; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households; Federal Government; or State, local or Tribal Government. This petition permits victims of certain qualifying criminal activity and their immediate family members to apply for temporary nonimmigrant classification. This nonimmigrant classification provides temporary immigration benefits, potentially leading to permanent resident status, to certain victims of criminal activity who: suffered substantial mental or physical abuse as a result of having been a victim of criminal activity; have information regarding the criminal activity; and assist Government officials in investigating and prosecuting such criminal activity. (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 I–918 is 29,400 and the estimated hour burden per response is 5 hours. The estimated total number of respondents for the information collection I–918A is 17,900 and the estimated hour burden per response is 1.5 hour. The estimated total number of respondents for the information collection I–918B is 29,400 and the estimated hour burden per response is 1 hour. The estimated total number of respondents for the information collection biometrics submission is 47,300 and the estimated hour burden per response is 1.17 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 258,591 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $201,025. PO 00000 Frm 00182 Fmt 4701 Sfmt 4702 USCIS Form I–929 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 information collection instrument. 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 1615–0106 in the body of the letter and the agency name. 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, for example, 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: Petition for Qualifying Family Member of a U–1 Nonimmigrant. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–929; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and Households. Section 245(m) of the Immigration and Nationality Act (Act) allows certain qualifying family members who have never held U nonimmigrant status to seek lawful permanent residence or apply for immigrant visas. Before such family members may apply for adjustment of status or seek immigrant visas, the U– 1 nonimmigrant who has been granted adjustment of status must file an immigrant petition on behalf of the qualifying family member using Form I– 929. Form I–929 is necessary for USCIS E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 to determine whether the eligibility requirements and conditions for a qualifying family member are met. (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 Form I–929 is 1,500 and the estimated hour burden per response is 0.817 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 1,226 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $183,750. USCIS Form I–941 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 information collection instrument. 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 1615–0136 in the body of the letter and the agency name. 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, for example, 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: Application for Entrepreneur Parole. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: I–941; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Entrepreneurs can use this form to make an initial request for parole based upon significant public benefit; make a subsequent request for parole for an additional period; or file an amended application to notify USCIS of a material change. (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 Form I–941 is 2,940 and the estimated hour burden per response is 4.517 hours; the estimated total number of respondents for the information collection biometrics submission is 2,940 and the estimated hour burden per response is 1.17 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 16,720 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $1,440,600. USCIS Form N–336 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 information collection instrument. 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 1615–0050 in the body of the letter and the agency name. 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 PO 00000 Frm 00183 Fmt 4701 Sfmt 4702 583 (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, for example, 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: Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: N–336; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Form N–336 is used by an individual whose Form N–400, Application for Naturalization was denied, to request a hearing before an immigration officer on the denial of the N–400. USCIS uses the information submitted on Form N–336 to locate the requestor’s file and schedule a hearing in the correct jurisdiction. It allows USCIS to determine if there is an underlying Form N–400, Application for Naturalization that was denied, to warrant the filing of Form N–336. The information collected also allows USCIS to determine if a member of the U.S. armed forces has filed the appeal. (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 Form N–336 (paper filed) is 3,788 and the estimated hour burden per response is 2.567 hours; the estimated total number of respondents for the information collection Form N– 336 (online filed) is 1,263 and the estimated hour burden per response is 2.5 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 12,882 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $2,601,265. USCIS Form N–400 DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 584 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. 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 1615–0052 in the body of the letter and the agency name. 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, for example, 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: Application for Naturalization. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: N–400; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Form N–400, Application for Naturalization, allows USCIS to fulfill its mission of fairly adjudicating naturalization applications and only naturalizing statutorily eligible individuals. Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the INA. (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 Form N–400 (paper filed) is 567,314 and the estimated hour burden per response is 8.987 hours; the estimated total number of respondents for the information collection N–400 VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (online filed) is 214,186 and the estimated hour burden per response is 3.5 hours; the estimated total number of respondents for the information collection biometrics submission is 778,000 and the estimated hour burden per response is 1.17 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 6,758,362 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $346,768,928. USCIS Form N–470 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 information collection instrument. 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 1615–0056 in the body of the letter and the agency name. 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, for example, 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: Application to Preserve Residence for Naturalization Purposes. (3) Agency form number, if any, and the applicable component of DHS PO 00000 Frm 00184 Fmt 4701 Sfmt 4702 sponsoring the collection: N–470; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. The information collected on Form N–470 will be used to determine whether an alien who intends to be absent from the United States for a period of one year or more is eligible to preserve residence for naturalization purposes. (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 Form N–470 is 120 and the estimated hour burden per response is 0.417 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 50 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $14,700. USCIS Form N–565 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 information collection instrument. 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 1615–0091 in the body of the letter and the agency name. 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 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules other forms of information technology, for example, 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: Application for Replacement of Naturalization/Citizenship Document. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: N–565; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. U.S. Citizenship and Immigration Services (USCIS) uses Form N–565 to determine the applicant’s eligibility for a replacement document. An applicant may file for a replacement if they were issued one of the documents described above and it was lost, mutilated, or destroyed; if the document is incorrect due to a typographical or clerical error by USCIS; if the applicant’s name was changed by a marriage, divorce, annulment, or court order after the document was issued and the applicant now seeks a document in the new name; or if the applicant is seeking a change of the gender listed on their document after obtaining a court order, a government-issued document, or a letter from a licensed health care professional recognizing that the applicant’s gender is different from that listed on their current document. The only document that can be replaced on the basis of a change to the applicant’s date of birth, as evidenced by a court order or a document issued by the U.S. Government or the government of a U.S. state, is the Certificate of Citizenship. If the applicant is a naturalized citizen who desires to obtain recognition as a citizen of the United States by a foreign country, he or she may apply for a special certificate for that purpose. (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 N–565 (paper-filed) is 13,270 and the estimated hour burden per response is 1.147 hours; the estimated total number of respondents for the information collection N–565 (online filed) is 13,270 and the estimated hour burden per response is 0.917 hours; the estimated total number of respondents for the photograph appointment is 26,340 (accounts for an estimated 200 respondents that file from overseas and do not need to attend a photo appointment) and the estimated hour burden per response is 1.17 hours. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (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 58,207 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $3,417,026. USCIS Form N–600 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 information collection instrument. 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 1615–0057 in the body of the letter and the agency name. 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, for example, 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: Application for Certification of Citizenship. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: N–600; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Form N–600 collects information from applicants who are requesting a Certificate of Citizenship PO 00000 Frm 00185 Fmt 4701 Sfmt 4702 585 because they acquired United States citizenship either by birth abroad to a U.S. citizen parent(s), adoption by a U. S. citizen parent(s), or after meeting eligibility requirements including the naturalization of a foreign-born parent. Form N–600 can also be filed by a parent or legal guardian on behalf of a minor child. The form standardizes requests for the benefit and ensures that basic information required to assess eligibility is provided by applicants. (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 N–600 (paper filing) is 27,500 and the estimated hour burden per response is 1.397 hours; the estimated total number of respondents for the information collection N–600 (online filed) is 27,500 and the estimated hour burden per response is 0.75 hours; the estimated total number of respondents for the information collection biometrics submission is 36,500 and the estimated hour burden per response is 1.17 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 101,748 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $7,081,250. USCIS Form N–600K 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 information collection instrument. 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 1615–0087 in the body of the letter and the agency name. 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; E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 586 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (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, for example, 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: Application for Citizenship and Issuance of Certificate under Section 322. (3) Agency form number, if any, and the applicable component of DHS sponsoring the collection: N–600K; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals and households. Form N–600K is used by children who regularly reside in a foreign country to claim U.S. citizenship based on eligibility criteria met by their U.S. citizen parent(s) or grandparent(s). The form may be used by children under age 18. USCIS uses information collected on this form to determine that the child has met all of the eligibility requirements for naturalization under section 322 of the Immigration and Nationality Act (INA). If determined eligible, USCIS will naturalize and issue the child a Certificate of Citizenship before the child reaches age 18. (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 Form N–600K (paper filed) is 1,300 and the estimated hour burden per response is 1.897 hours; the estimated total number of respondents for the information collection Form N– 600K (online filed) is 1,700 and the estimated hour burden per response is 1.5 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 5,016 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $386,250. USCIS Form OMB–64 DHS and USCIS invite the general public and other Federal agencies to VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 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 information collection instrument. 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 1615–0144 in the body of the letter and the agency name. 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, for example, 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 DHS sponsoring the collection: OMB–64; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. USCIS will use the data collected through the H–1B Registration Tool to select a sufficient number of registrations projected to meet the applicable H–1B cap allocations and to notify registrants whether their registration was selected. (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 business or other for-profit respondents for the information collection H–1B Registration Tool is 35,500 with an estimated 3 responses per respondents and an estimated hour burden per response of 0.5167 hours. The estimated total number of attorney respondents for PO 00000 Frm 00186 Fmt 4701 Sfmt 4702 the information collection H–1B Registration Tool is 4,500 with an estimated 38 responses per respondents and an estimated hour burden per response of 0.5167 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 143,384 hours. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $0.00. Any costs to respondents are captured in the Form I–129 information collection (OMB control number 1615–009). Differences in Information Collection Request Respondent Volume and Fee Model Filing Volume Projections DHS notes that the estimates of annual filing volume in the PRA section of this preamble are not the same as those used in the model used to calculate the fee amounts proposed in this rule. For example, the fee calculation model projects 1,666,500 Form I–765 filings while the estimated total number of respondents for the information collection I–765 is 2,179,494. As stated in section V.B.1.a of this preamble, the VPC forecasts USCIS workload volume based on shortand long-term volume trends and time series models, historical receipts data, patterns (such as level, trend, and seasonality), or correlations with historical events to forecast receipts. Workload volume is used to determine the USCIS resources needed to process benefit requests and is the primary cost driver for assigning activity costs to immigration benefits and biometric services in the USCIS ABC model. DHS uses a different method for estimating the average annual number of respondents for the information collection over the 3-year OMB approval of the control number, generally basing the estimate on the average filing volumes in the previous 3 of 5-year period, with less consideration of the volume effects on planned or past policy changes. Nevertheless, when the information collection request is nearing expiration USCIS will update the estimates of annual respondents based on actual results in the submission to OMB. The PRA burden estimates are generally updated at least every 3 years. Thus, DHS expects that the PRA estimated annual respondents will be updated to reflect the actual effects of this proposed rule within a relatively short period after a final rule takes effect. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules I. National Environmental Policy Act khammond on DSKJM1Z7X2PROD with PROPOSALS2 DHS Directive 023–01 Rev. 01 (Directive) and Instruction Manual 023– 01–001–01 Rev. 01 (Instruction Manual) establish the policies and procedures that DHS and its components use to comply with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (‘‘categorical exclusions’’) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1507.3(e)(2)(ii), 1501.4. The Instruction Manual establishes categorical exclusions that DHS has found to have no such effect. See Appendix A, Table 1. Under DHS NEPA implementing procedures, for a proposed action to be categorically excluded it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Instruction Manual section V.B(2)(a)–(c). This proposed rule implements the authority in the INA to establish fees to fund immigration and naturalization services of USCIS. DHS has determined that this proposed rule does not individually or cumulatively have a significant effect on the human environment because it clearly fits within categorical exclusions A3(a) and (d) in Appendix A of the Instruction Manual established for rules of a strictly administrative or procedural nature and actions that interpret or amend an existing regulation without changing its environmental effect. This proposed rule is not part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review. J. Family Assessment Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Agencies must assess whether the regulatory action: (1) Impacts the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 stability or safety of the family, particularly in terms of marital commitment; (2) impacts the authority of parents in the education, nurture, and supervision of their children; (3) helps the family perform its functions; (4) affects disposable income or poverty of families and children; (5) if the regulatory action financially impacts families, are justified; (6) may be carried out by State or local government or by the family; and (7) establishes a policy concerning the relationship between the behavior and personal responsibility of youth and the norms of society. If the determination is affirmative, then the Agency must prepare an impact assessment to address criteria specified in the law. DHS has no data that indicate that this proposed rule will have any impacts on disposable income or the poverty of certain families and children, including U.S. citizen children. DHS acknowledges that this proposal would increase the fees that families must submit and thus it may affect the disposable income for certain families. DHS has provided a process to waive fees for immigration benefits when the person submitting the request is unable to pay the fee. In addition, the proposed rule may provide USCIS with the funds necessary to provide free services to certain disadvantaged populations, including abused children and spouses, refugees, and victims of criminal activity or human trafficking. DHS believes that the benefits of the new fees justify the financial impact on the family, that this rulemaking’s impact is justified, and no further actions are required. DHS also determined that this proposed rule will not have any impact on the autonomy or integrity of the family as an institution. List of Subjects 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds. 8 CFR Part 106 8 CFR Part 204 Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. Frm 00187 Fmt 4701 Sfmt 4702 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange program, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students. 8 CFR Part 240 Administrative practice and procedure, Aliens. 8 CFR Part 244 Administrative practice and procedure, Immigration. 8 CFR Part 245 Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 245a Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 264 Aliens, Reporting and recordkeeping requirements. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, DHS proposes to amend chapter I of title 8 of the Code of Federal Regulations as follows: PART 103—IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS 1. The authority citation for part 103 is revised 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. 101 et seq.); Pub. L. 112–54, 125 Stat 550 (8 U.S.C. 1185 note); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. 2. Section 103.2 is amended by revising the fourth sentence of paragraph (a)(1) and paragraphs (a)(7)(ii)(D) and (b)(19)(iii)(A) to read as follows: ■ § 103.2 Submission and adjudication of benefit requests. Immigration, User fees. PO 00000 587 (a) * * * (1) * * * Filing fees generally are non-refundable regardless of the outcome of the benefit request, or how much time the adjudication requires, and any decision to refund a fee is at the discretion of USCIS. * * * * * * * * (7) * * * (ii) * * * E:\FR\FM\04JAP2.SGM 04JAP2 588 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (D) Submitted with the correct fee(s). If a check or other financial instrument used to pay a fee is returned as unpayable because of insufficient funds, USCIS will resubmit the payment to the remitter institution one time. If the instrument used to pay a fee is returned as unpayable a second time, the filing may be rejected. Financial instruments returned as unpayable for a reason other than insufficient funds will not be redeposited. Credit cards that are declined will not be submitted a second time. If a check or other financial instrument used to pay a fee is dated more than one year before the request is received, the payment and request may be rejected. * * * * * (b) * * * (19) * * * (iii) * * * (A) USCIS will send secure identification documents, such as a Permanent Resident Card or Employment Authorization Document, only to the applicant or self-petitioner unless the applicant or self-petitioner specifically consents to having his or her secure identification document sent to a designated agent or their attorney or accredited representative of record, as specified on the form instructions. * * * * * ■ 3. Section 103.7 is revised and republished to read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 103.7 Fees. (a) Department of Justice (DOJ) fees. Fees for proceedings before immigration judges and the Board of Immigration Appeals are described in 8 CFR 1003.8, 1003.24, and 1103.7. (1) USCIS may accept DOJ fees. Except as provided in 8 CFR 1003.8, or as the Attorney General otherwise may provide by regulation, any fee relating to any EOIR proceeding may be paid to USCIS. Payment of a fee under this section does not constitute filing of the document with the Board or with the immigration court. DHS will provide the payer with a receipt for a fee and return any documents submitted with the fee relating to any immigration court proceeding. (2) DHS–EOIR biometric services fee. Fees paid to and accepted by DHS relating to any immigration proceeding as provided in 8 CFR 1103.7(a) must include an additional $30 for DHS to collect, store, and use biometric information. (3) Waiver of court fees. An immigration judge may waive any fees prescribed under this chapter for cases under their jurisdiction to the extent provided in 8 CFR 1003.8, 1003.24, and 1103.7. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (b) USCIS fees. USCIS fees will be required as provided in 8 CFR part 106. (c) Remittances. Remittances to the Board of Immigration Appeals must be made payable to the ‘‘United States Department of Justice,’’ in accordance with 8 CFR 1003.8. (d) Non-USCIS DHS immigration fees. The following fees are applicable to one or more of the immigration components of DHS: (1) DCL system costs fee. For use of a Dedicated Commuter Lane (DCL) located at specific U.S. ports-of-entry by an approved participant in a designated vehicle: (i) $80.00; or (ii) $160.00 for a family (applicant, spouse and minor children); plus, (iii) $42 for each additional vehicle enrolled. (iv) The fee is due after approval of the application but before use of the DCL. (v) This fee is non-refundable, but may be waived by DHS. (2) Petition for Approval of School for Attendance by Nonimmigrant Student (Form I–17). (i) For filing a petition for school certification: $3,000 plus, a site visit fee of $655 for each location required to be listed on the form. (ii) For filing a petition for school recertification: $1,250, plus a site visit fee of $655 for each new location required to be listed on the form. (3) Form I–68. For application for issuance of the Canadian Border Boat Landing Permit under section 235 of the Act: (i) $16.00; or (ii) $32 for a family (applicant, spouse, and unmarried children under 21 years of age, and parents of either spouse). (4) Form I–94. For issuance of Arrival/ Departure Record at a land border portof-entry: $6.00. (5) Form I–94W. For issuance of Nonimmigrant Visa Waiver Arrival/ Departure Form at a land border port-ofentry under section 217 of the Act: $6.00. (6) Form I–246. For filing application for stay of deportation under 8 CFR part 243: $155.00. The application fee may be waived by DHS. (7) Form I–823. For application to a PORTPASS program under section 286 of the Act: (i) $25.00; or (ii) $50.00 for a family (applicant, spouse, and minor children). (iii) The application fee may be waived by DHS. (iv) If fingerprints are required, the inspector will inform the applicant of the current Federal Bureau of Investigation fee for conducting PO 00000 Frm 00188 Fmt 4701 Sfmt 4702 fingerprint checks before accepting the application fee. (v) The application fee (if not waived) and fingerprint fee must be paid to CBP before the application will be processed. The fingerprint fee may not be waived. (vi) For replacement of PORTPASS documentation during the participation period: $25.00. (8) Fee Remittance for F, J, and M Nonimmigrants (Form I–901). The fee for Form I–901 is: (i) For F and M students: $350. (ii) For J–1 au pairs, camp counselors, and participants in a summer work or travel program: $35. (iii) For all other J exchange visitors (except those participating in a program sponsored by the Federal Government): $220. (iv) There is no Form I–901 fee for J exchange visitors in federally funded programs with a program identifier designation prefix that begins with G–1, G–2, G–3, or G–7. (9) Special statistical tabulations. The DHS cost of the work involved. (10) Monthly, semiannual, or annual ‘‘Passenger Travel Reports via Sea and Air’’ tables. (i) For the years 1975 and before: $7.00. (ii) For after 1975: Contact: U.S. Department of Transportation, Transportation Systems Center, Kendall Square, Cambridge, MA 02142. (11) Request for Classification of a citizen of Canada to engage in professional business activities pursuant to section 214(e) of the Act (Chapter 16 of the North American Free Trade Agreement). $50.00. (12) Request for authorization for parole of an alien into the United States. $65.00. (13) Global Entry. Application for Global Entry: $100. (14) U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card. Application fee: $70. (15) Notice of Appeal or Motion (Form I–290B) filed with ICE SEVP. For a Form I–290B filed with the Student and Exchange Visitor Program (SEVP): $675. ■ 4. Section 103.17 is revised and republished to read as follows: § 103.17 Biometric services fee. DHS may charge a fee to collect biometric information, to provide biometric collection services, to conduct required national security and criminal history background checks, to verify an individual’s identity, and to store and maintain this biometric information for reuse to support other benefit requests. When a biometric services fee is required, USCIS may reject a benefit request submitted without the correct biometric services. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules 5. Section 103.40 is revised and republished to read as follows: ■ khammond on DSKJM1Z7X2PROD with PROPOSALS2 § 103.40 Genealogical research requests. (a) Nature of requests. Genealogy requests are requests for searches and/ or copies of historical records relating to a deceased person, usually for genealogy and family history research purposes. (b) Forms. USCIS provides on its website at https://www.uscis.gov/ records/genealogy the required forms in electronic versions: Genealogy Index Search Request or Genealogy Records Request. (c) Required information. Genealogical research requests may be submitted to request one or more separate records relating to an individual. A separate request must be submitted for each individual searched. All requests for records or index searches must include the individual’s: (1) Full name (including variant spellings of the name and/or aliases, if any). (2) Date of birth, at least as specific as a year. (3) Place of birth, at least as specific as a country and preferably the country name at the time of the individual’s immigration or naturalization. (d) Optional information. To better ensure a successful search, a genealogical research request may include each individual’s: (1) Date of arrival in the United States. (2) Residence address at time of naturalization. (3) Names of parents, spouse, and children if applicable and available. (e) Additional information required to retrieve records. For a Genealogy Records Request, requests for copies of historical records or files must identify the record by number or other specific data used by the Genealogy Program Office to retrieve the record as follows: (1) C-Files must be identified by a naturalization certificate number. (2) Forms AR–2 and A-Files numbered below 8 million must be identified by Alien Registration Number. (3) Visa Files must be identified by the Visa File Number. Registry Files must be identified by the Registry File Number (for example, R–12345). (f) Information required for release of records. (1) Documentary evidence must be attached to a Genealogy Records Request or submitted in accordance with the instructions on the Genealogy Records Request form. (2) Search subjects will be presumed deceased if their birth dates are more than 100 years before the date of the request. In other cases, the subject is presumed to be living until the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 requestor establishes to the satisfaction of USCIS that the subject is deceased. (3) Documentary evidence of the subject’s death is required (including but not limited to death records, published obituaries or eulogies, published death notices, church or bible records, photographs of gravestones, and/or copies of official documents relating to payment of death benefits). (g) Index search. Requestors who are unsure whether USCIS has any record of their ancestor, or who suspect a record exists but cannot identify that record by number, may submit a request for index search. An index search will determine the existence of responsive historical records. If no record is found, USCIS will notify the requestor accordingly. If records are found, USCIS will give the requestor electronic copies of records stored in digital format for no additional fee. For records found that are stored in paper format, USCIS will give the requestor the search results, including the type of record found and the file number or other information identifying the record. The requestor can use index search results to submit a Genealogy Records Request. (h) Processing of paper record copy requests. This service is designed for requestors who can identify a specific record or file to be retrieved, copied, reviewed, and released. Requestors may identify one or more files in a single request. ■ 6. Part 106 is revised and republished to read as follows: PART 106—USCIS FEE SCHEDULE Sec. 106.1 Fee requirements. 106.2 Fees. 106.3 Fee waivers and exemptions. 106.4 Premium processing service. 106.5 Authority to certify records. 106.6 DHS severability. Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; 48 U.S.C. 1806; Pub. L. 107- 296, 116 Stat. 2135 (6 U.S.C. 101 note); Pub. L. 115–218, 132 Stat. 1547; Pub. L. 116– 159, 134 Stat. 709. § 106.1 Fee requirements. (a) Fees must be submitted with any USCIS request in the amount and subject to the conditions provided in this part and remitted in the manner prescribed in the relevant form instructions, on the USCIS website, or in a Federal Register document. The fees established in this part are associated with the benefit, the adjudication, or the type of request and not solely determined by the form number listed in § 106.2. (b) Fees must be remitted from a bank or other institution located in the United States and payable in U.S. PO 00000 Frm 00189 Fmt 4701 Sfmt 4702 589 currency. The fee must be paid using the method that USCIS prescribes for the request, office, filing method, or filing location, as provided in the form instructions or by individual notice. (c) If a remittance in payment of a fee or any other matter is not honored by the bank or financial institution on which it is drawn: (1) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will be issued, and if a receipt was issued, it is void and the benefit request loses its receipt date; and (2) If the benefit request was approved, the approval may be revoked upon notice. If the approved benefit request requires multiple fees, this paragraph (c) would apply if any fee submitted is not honored. Other fees that were paid for a benefit request that is revoked under this paragraph (c) will be retained and not refunded. A revocation of an approval because the fee submitted is not honored may be appealed to the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 and the applicable form instructions. (d) DHS is not responsible for financial instruments that expire before they are deposited. USCIS may reject any filing for which required payment cannot be processed due to expiration of the financial instrument. (e) Fees paid to USCIS using a credit card are not subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS. § 106.2 Fees. (a) I Forms—(1) Application to Replace Permanent Resident Card, Form I–90. For filing an application for a Permanent Resident Card, Form I–551, to replace an obsolete card or to replace one lost, mutilated, or destroyed, or for a change in name. (i) When filed online: $455. (ii) When filed on paper: $465. (iii) If the applicant was issued a card but never received it: No fee. (iv) If the applicant’s card was issued with incorrect information because of DHS error and the applicant is filing for a replacement: No fee. (v) If the applicant has reached their 14th birthday and their existing card will expire after their 16th birthday: No fee. (2) Application for Replacement/ Initial Nonimmigrant Arrival-Departure Document, Form I–102. For filing an application for Arrival/Departure Record Form I–94, or Crewman’s Landing Permit Form I–95, to replace one lost, mutilated, or destroyed: $680. E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 590 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (i) For nonimmigrant member of the U.S. armed forces: No fee for initial filing; (ii) For a nonimmigrant member of the North Atlantic Treaty Organization (NATO) armed forces or civil component: No fee for initial filing; (iii) For nonimmigrant member of the Partnership for Peace military program under the Status of Forces Agreement (SOFA): No fee for initial filing; and (iv) For replacement for DHS error: No fee. (3) Petition or Application for a Nonimmigrant Worker, Form I–129. For filing a petition or application for a nonimmigrant worker: (i) Petition for H–1B Nonimmigrant Worker or H–1B1 Free Trade Nonimmigrant Worker: $780. (ii) Petition for H–2A Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,090. (iii) Petition for H–2A Nonimmigrant Worker with only unnamed beneficiaries: $530. (iv) Petition for H–2B Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,080. (v) Petition for H–2B Nonimmigrant Worker with only unnamed beneficiaries: $580. (vi) Petition for L Nonimmigrant Worker: $1,385. (vii) Petition for O Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,055. (viii) Petition or Application for E, H– 3, P, Q, R, or TN Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,015. (4) Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I–129CW. For an employer to petition on behalf of beneficiaries in the Commonwealth of the Northern Mariana Islands (CNMI): $1,015. (i) Additional fees in paragraph (c) of this section may apply. (ii) Semiannual Report for CW–1 Employers (Form I–129CWR): No fee. (5) Petition for Alien fiancé´(e), Form I–129F. (i) For filing a petition to classify a nonimmigrant as a fiancé´e or fiancé´ under section 214(d) of the Act: $720. (ii) For a K–3 spouse as designated in 8 CFR 214.1(a)(2) who is the beneficiary of an immigrant petition filed by a U.S. citizen on a ‘‘Petition for Alien Relative,’’ Form I–130: No fee. (6) Petition for Alien Relative, Form I– 130. For filing a petition to classify status of a foreign national relative for issuance of an immigrant visa under section 204(a) of the Act. (i) When filed online: $710. (ii) When filed on paper: $820. (7) Application for Travel Document, Form I–131. (i) Refugee Travel VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 Document for asylee and lawful permanent resident who obtained such status as an asylee 16 years or older: $165. (ii) Refugee Travel Document for asylee and lawful permanent resident who obtained such status as an asylee under the age of 16: $135. (iii) Advance Parole, Reentry Permit, and other travel documents: $630. (iv) There are no fees for a travel document for applicants who filed USCIS Form I–485 on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the Form I–485 fee. (v) There are no fees for parole requests from current or former U.S. armed forces service members. (8) Application for Carrier Documentation, Form I–131A. For filing an application to allow a lawful permanent resident to apply for a travel document (carrier documentation) to board an airline or other transportation carrier to return to the United States: $575. (9) Declaration of Financial Support, Form I–134. No fee. (10) Immigrant Petition for Alien Worker, Form I–140. For filing a petition to classify preference status of an alien on the basis of profession or occupation under section 204(a) of the Act: $715. (11) Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA), Form I–191. For filing an application for discretionary relief under section 212(c) of the Act: $930. (12) Application for Advance Permission to Enter as a Nonimmigrant, Form I–192. For filing an application for discretionary relief under section 212(d)(3), (13), or (14) of the Act, except in an emergency case or where the approval of the application is in the interest of the U.S. Government: $1,100. (13) Application for Waiver of Passport and/or Visa, Form I–193. For filing an application for waiver of passport and/or visa: $695. (14) Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I–212. For filing an application for permission to reapply for admission by an excluded, deported, or removed alien; an alien who has fallen into distress; an alien who has been removed as an alien enemy; or an alien who has been removed at Government expense: $1,395. (15) Notice of Appeal or Motion, Form I–290B. For appealing a decision under the immigration laws in any type of proceeding over which the Board of Immigration Appeals does not have appellate jurisdiction, and for filing a PO 00000 Frm 00190 Fmt 4701 Sfmt 4702 motion to review or reconsider a USCIS decision: $800. The fee will be the same for appeal of or motion on a denial of a benefit request with one or multiple beneficiaries. There is no fee for conditional permanent residents who filed a waiver of the joint filing requirement based on battery or extreme cruelty and filed a ‘‘Notice of Appeal or Motion (Form I–290B) when their Petition to Remove the Conditions on Residence’’ (Form I–751) was denied. (16) Petition for Amerasian, Widow(er), or Special Immigrant, Form I–360. $515. There is no fee for the following: (i) A petition seeking classification as an Amerasian; (ii) A petition seeking immigrant classification as a Violence Against Women Act (VAWA) self-petitioner; (iii) A petition for Special Immigrant Juvenile classification; (iv) A petition seeking special immigrant classification as Afghan or Iraqi translator or interpreter, Iraqi national employed by or on behalf of the U.S. Government, or Afghan national employed by or on behalf of the U.S. Government or employed by the International Security Assistance Force (ISAF); or a surviving spouse or child of such a person; or (v) A petition for a person who served honorably on active duty in the U.S. armed forces filing under section 101(a)(27)(K) of the Act. (17) Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97–359 Amerasian, Form I–361. No fee. (18) Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97–359 Amerasian, Form I–363. No fee. (19) Record of Abandonment of Lawful Permanent Resident Status, Form I–407. No fee. (20) Application to Register Permanent Residence or Adjust Status, Form I–485. For filing an application for permanent resident status or creation of a record of lawful permanent residence: $1,540. There is no fee for the following: (i) An applicant who is in deportation, exclusion, or removal proceedings before an immigration judge, and the court waives the application fee. (ii) An applicant who served honorably on active duty in the U.S. armed forces who is filing under section 101(a)(27)(K) of the Act. (21) Application to Adjust Status under Section 245(i) of the Act, Form I– 485 Supplement A. Supplement A to Form I–485 for persons seeking to adjust status under the provisions of section 245(i) of the Act: A sum of $1,000 must E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules be paid while the applicant’s ‘‘Application to Register Permanent Residence or Adjust Status’’ is pending, unless payment of the additional sum is not required under section 245(i) of the Act, including: (i) If applicant is unmarried and under 17 years of age: No fee. (ii) If the applicant is the spouse or unmarried child under 21 years of age of a legalized alien and attaches a copy of a USCIS receipt or approval notice for a properly filed Form I–817, ‘‘Application for Family Unity Benefits’’: No fee. (22) Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), Form I–485J. No fee. (23) Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities, Form I–508. No fee. (24) Immigrant Petition by Standalone or Regional Center Investor, Forms I–526 and I–526E. (i) Immigrant Petition by Standalone Investor, Form I–526: $11,160. (ii) Immigrant Petition by Regional Center Investor, Form I–526E: $11,160. (25) Application To Extend/Change Nonimmigrant Status, Form I–539. (i) When filing online: $525. (ii) When filing on paper: $620. (iii) There is no fee for the following: (A) Nonimmigrant A, G, and NATO; (B) T nonimmigrant; and (C) U nonimmigrant if filed before the petitioner files an Application to Register Permanent Residence or Adjust Status (Form I–485). (26) Interagency Record of Request— A, G, or NATO Dependent Employment Authorization or Change/Adjustment To/From A, G, or NATO Status, Form I– 566. No fee. (27) Application for Asylum and for Withholding of Removal, Form I–589. No fee. (28) Registration for Classification as a Refugee, Form I–590. No fee. (29) Petition to Classify Orphan as an Immediate Relative, Form I–600. For filing a petition to classify an orphan as an immediate relative for issuance of an immigrant visa: $920. (i) There is no fee for the first Form I–600 filed for a child on the basis of an approved Application for Advance Processing of an Orphan Petition, Form I–600A, during the Form I–600A approval or extended approval period. (ii) Except as specified in paragraph (a)(29)(iii) of this section, if more than one Form I–600 is filed during the Form I–600A approval period, the fee is $920 for the second and each subsequent Form I–600 petition submitted. (iii) If more than one Form I–600 is filed during the Form I–600A approval VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 period on behalf of beneficiary birth siblings, no additional fee is required. (30) Application for Advance Processing of an Orphan Petition, Form I–600A. For filing an application for determination of suitability and eligibility to adopt an orphan: $920. (31) Request for Action on Approved Form I–600A/I–600, Form I–600A/I–600 Supplement 3. $455. (i) This filing fee: (A) Is not charged if Form I–600A/I– 600 Supplement 3 is filed to obtain a first-time extension of the approval of the Form I–600A or to obtain a first-time change of non-Hague Adoption Convention country during the Form I– 600A approval period. (B) Is charged if Form I–600A/I–600 Supplement 3 is filed to request a new approval notice based on a significant change and updated home study unless a first-time extension of the Form I– 600A approval or first-time change of non-Hague Adoption Convention country is also being requested on the same Supplement 3. (C) Is charged for second or subsequent extensions of the approval of the Form I–600A, second or subsequent changes of non-Hague Adoption Convention country, requests for a new approval notice based on a significant change and updated home study, and requests for a duplicate approval notice permitted with Form I– 600A/I–600 Supplement 3 with the filing fee. (ii) Form I–600A/I–600 Supplement 3 cannot be used to: (A) Extend eligibility to proceed as a Hague Adoption Convention transition case beyond the first extension once the Convention enters into force for the new Convention country. (B) Request a change of country to a Hague Adoption Convention transition country for purposes of becoming a transition case if another country was already designated on the Form I–600A or the applicant previously changed countries. (iii) Form I–600A/I–600 Supplement 3 may only be used to request an increase in the number of children the applicant/ petitioner is approved to adopt from a transition country if the additional child is a birth sibling of a child whom the applicant/petitioner has adopted or is in the process of adopting, as a transition case, and is identified and petitioned for while the Form I–600A approval is valid, unless the new Convention country prohibits such birth sibling cases from proceeding as transition cases. (32) Application for Waiver of Ground of Inadmissibility, Form I–601. $1,050. No fee is required for filing an PO 00000 Frm 00191 Fmt 4701 Sfmt 4702 591 application to overcome the grounds of inadmissibility of the Act if filed concurrently with an application for adjustment of status under the provisions of the Act of October 28, 1977, and of this part. (33) Application for Provisional Unlawful Presence Waiver, Form I– 601A. $1,105. (34) Application by Refugee for Waiver of Grounds of Inadmissibility, Form I–602. No fee. (35) Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended), Form I– 612. $1,100. (36) Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, Form I–687. $1,240. (37) Application for Waiver of Grounds of Inadmissibility, Form I–690. For filing an application for waiver of a ground of inadmissibility under section 212(a) of the Act as amended, in conjunction with the application under section 210 or 245A of the Act, or a petition under section 210A of the Act: $985. (38) Report of Medical Examination and Vaccination Record (Form I–693). No fee. (39) Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act (or a petition under section 210A of the Act), Form I–694. For appealing the denial of an application under section 210 or 245A of the Act, or a petition under section 210A of the Act: $1,155. (40) Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA), Form I–698. For filing an application to adjust status from temporary to permanent resident (under section 245A of Pub. L. 99–603): $1,670. The adjustment date is the date of filing of the application for permanent residence or the applicant’s eligibility date, whichever is later. (41) Refugee/Asylee Relative Petition, Form I–730. No fee. (42) Petition to Remove Conditions on Residence, Form I–751. For filing a petition to remove the conditions on residence based on marriage: $1,195. (43) Application for Employment Authorization, Form I–765. (i) When filed online: $555. (ii) When filed on paper: $650. (iii) There is no fee for an initial Employment Authorization Document for the following: (A) An applicant who filed USCIS Form I–485 on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the Form I–485 fee; E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 592 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (B) Dependents of certain government and international organizations or NATO personnel; (C) N–8 (Parent of alien classed as SK3) and N–9 (Child of N–8) nonimmigrants; (D) Persons granted asylee status (AS1, AS6); (E) Citizen of Micronesia, Marshall Islands, or Palau; (F) Granted Withholding of Deportation or Removal; (G) Applicant for Asylum and Withholding of Deportation or Removal including derivatives; (H) Taiwanese dependents of Taipei Economic and Cultural Representative Office (TECRO) E–1 employees; and (I) Current or former U.S. armed forces service members. (iv) Request for replacement Employment Authorization Document based on USCIS error: No fee. (v) There is no fee for a renewal or replacement Employment Authorization Document for the following: (A) Any current Adjustment of Status or Registry applicant who filed for adjustment of status on or after July 30, 2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the appropriate Form I–485 filing fee; (B) Dependent of certain foreign government, international organization, or NATO personnel; (C) Citizen of Micronesia, Marshall Islands, or Palau; and (D) Granted withholding of deportation or removal. (vi) There is no fee for the Application for Employment Authorization for Abused Nonimmigrant Spouse, Form I– 765V. (44) Petition to Classify Convention Adoptee as an Immediate Relative, Form I–800. For filing a petition to classify a Hague Convention adoptee as an immediate relative for issuance of an immigrant visa. (i) There is no fee for the first Form I–800 filed for a child on the basis of an approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A, during the Form I–800A approval period. (ii) Except as specified in paragraph (a)(44)(iii) of this section, if more than one Form I–800 is filed during the Form I–800A approval period, the fee is $920 for the second and each subsequent Form I–800 petition submitted. (iii) If more than one Form I–800 is filed during the Form I–800A approval period on behalf of beneficiary birth siblings, no additional fee is required. (45) Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A. For VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 filing an application for determination of suitability and eligibility to adopt a child from a Hague Adoption Convention country: $920. (46) Request for Action on Approved Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I–800A, Supplement 3. $455. This filing fee: (i) Is not charged if Form I–800A Supplement 3 is filed to obtain a firsttime extension of the approval of the Form I–800A or to obtain a first-time change of Hague Adoption Convention country during the Form I–800A approval period. (ii) Is charged if Form I–800A Supplement 3 is filed to request a new approval notice based on a significant change and updated home study unless a first-time extension of the Form I– 800A approval or first-time change of Hague Adoption Convention country is also being requested on the same Supplement 3. (iii) Is $455 for second or subsequent extensions of the Form I–800A approval, second or subsequent changes of Hague Adoption Convention country, requests for a new approval notice based on a significant change and updated home study, and requests for a duplicate approval notice, permitted with the filing of a Form I–800A, Supplement 3 and the required filing fee. (47) Application for Family Unity Benefits, Form I–817. For filing an application for voluntary departure under the Family Unity Program: $875. (48) Application for Temporary Protected Status, Form I–821. (i) For first time applicants: $50 or the maximum permitted by section 244(c)(1)(B) of the Act. (ii) There is no fee for re-registration. (iii) A Temporary Protected Status (TPS) applicant or re-registrant must pay $30 for biometric services. (49) Consideration of Deferred Action for Childhood Arrivals, Form I–821D. $85. (50) Application for Action on an Approved Application or Petition, Form I–824. $675. (51) Petition by Investor to Remove Conditions on Permanent Resident Status, Form I–829. $9,525. (52) Inter-Agency Alien Witness and Informant Record, Form I–854. No fee. (53) Affidavit of Support Under Section 213A of the INA, Form I–864. No fee. (i) Contract Between Sponsor and Household Member, Form I–864A. No fee. (ii) Affidavit of Support Under Section 213A of the INA, Form I–864EZ. No fee. PO 00000 Frm 00192 Fmt 4701 Sfmt 4702 (iii) Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I–864W. No fee. (iv) Sponsor’s Notice of Change of Address, Form I–865. No fee. (54) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105–100), Form I–881. (i) $340 for adjudication by DHS. (ii) $165 for adjudication by EOIR. If the Form I–881 is referred to the immigration court by DHS: No fee. (iii) If filing Form I–881 as a VAWA self-petitioner, including derivatives, as defined under section 101(a)(51)(F) of the Act: No fee. (55) Application for Authorization to Issue Certification for Health Care Workers, Form I–905. $230. (56) Request for Premium Processing Service, Form I–907. The Request for Premium Processing Service fee will be as provided in § 106.4. (57) Request for Civil Surgeon Designation, Form I–910. $1,230. (58) Request for Fee Waiver, Form I– 912. No fee. (59) Application for T Nonimmigrant Status, Form I–914. No fee. (i) Supplement A to Form I–914, Application for Immigrant Family Member of a T–1 Recipient. No fee. (ii) Supplement B to Form I–914, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. No fee. (60) Petition for U Nonimmigrant Status, Form I–918. No fee. (i) Supplement A to Form I–918, Petition for Qualifying Family Member of U–1 Recipient. No fee. (ii) Supplement B to Form I–918, U Nonimmigrant Status Certification. No fee. (61) Petition for Qualifying Family Member of a U–1 Nonimmigrant, Form I–929. For a principal U–1 nonimmigrant to request immigration benefits on behalf of a qualifying family member who has never held U nonimmigrant status: $270. (62) Application for Entrepreneur Parole, Form I–941. For filing an application for parole for an entrepreneur: $1,200. (63) Request for Reduced Fee, Form I– 942. Requesting a reduced fee for the naturalization application Form N–400: No fee. (64) Application for Regional Center Designation, Form I–956. $47,695. (65) Application for Approval of Investment in a Commercial Enterprise, Form I–956F. $47,695. (66) Regional Center Annual Statement, Form I–956G. To provide updated information and certify that a Regional Center under the Immigrant E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules Investor Program has maintained its eligibility: $4,470. (b) N Forms—(1) Monthly Report on Naturalization Papers, Form N–4. No fee. (2) Application to File Declaration of Intention, Form N–300. $320. (3) Request for a Hearing on a Decision in Naturalization Proceedings (under section 336 of the Act), Form N– 336. $830. There is no fee for an applicant who has filed an Application for Naturalization under section 328 or 329 of the Act with respect to military service and whose application has been denied. (4) Application for Naturalization, Form N–400. $760. With the following exceptions: (i) No fee is charged an applicant who meets the requirements of section 328 or 329 of the Act with respect to military service. (ii) The fee for an applicant with an approved Request for Reduced Fee, Form I–942, whose documented income is less than 200 percent of the Federal poverty level: $380. (5) Request for Certification of Military or Naval Service, Form N–476. No fee. (6) Application to Preserve Residence for Naturalization Purposes, Form N– 470. $420. (7) Application for Replacement Naturalization/Citizenship Document, Form N–565. $555. There is no fee when this application is submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a certificate that contains an error. (8) Application for Certificate of Citizenship, Form N–600. $1,385. There is no fee for any application filed by a current or former member of any branch of the U.S. armed forces on their own behalf. (9) Application for Citizenship and Issuance of Certificate Under Section 322, Form N–600K. $1,385. (10) Application for Posthumous Citizenship, Form N–644. No fee. (11) Medical Certification for Disability Exceptions, Form N–648. No fee. (c) G Forms, statutory fees, and nonform fees—(1) Genealogy Index Search Request, Form G–1041. The fee is due regardless of the search results. (i) When filed online: $100. (ii) When filed on paper: $120. (2) Genealogy Records Request, Form G–1041A. USCIS will refund the records request fee when it is unable to locate any file previously identified in response to the index search request. (i) When filed online: $240. (ii) When filed on paper: $260. (3) USCIS immigrant fee. For DHS domestic processing and issuance of VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 593 registration is not selected or is required documents after an immigrant visa is issued by the U.S. Department of withdrawn. (12) Request for Certificate of NonState: $235. (4) American Competitiveness and Existence, G–1566. $330. For a Workforce Improvement Act (ACWIA) certification of non-existence of a fee. For filing certain H–1B petitions as naturalization record. (13) Asylum Program Fee. $600. The described in 8 CFR 214.2(h)(19) and Asylum Program Fee must be paid by USCIS form instructions: $1,500 or any petitioner filing a Petition or $750. (5) Fraud detection and prevention Application for a Nonimmigrant fee. (i) For filing certain H–1B and L Worker, Form I–129, Petition for a petitions as described in 8 U.S.C. CNMI-Only Nonimmigrant Transitional 1184(c) and USCIS form instructions: Worker, Form I–129CW, or an $500. Immigrant Petition for Alien Worker, (ii) For filing certain H–2B petitions Form I–140. as described in 8 U.S.C. 1184(c) and (d) Inflationary adjustment. The fees USCIS form instructions: $150. prescribed in this section may be (6) Fraud detection and prevention fee adjusted once per year by publication of for CNMI. For employer petitions in a rule in the Federal Register based on CNMI as described in Public Law 115– the amount of inflation as measured by 218 and USCIS form instructions: $50. the difference in the CPI–U as published (7) CNMI education funding fee. The by the U.S. Department of Labor, U.S. fee amount will be as prescribed in the Bureau of Labor Statistics in [MONTH form instructions and: FINAL RULE IS EFFECTIVE] of the year (i) The fee amount must be paid in of the last fee rule and the year of the addition to, and in a separate remittance adjustment under this section. The fee from, other filing fees; calculated under this paragraph (d) will (ii) Every employer who is issued a be rounded to the nearest $5 increment. permit must pay the education funding § 106.3 Fee waivers and exemptions. fee every year; (iii) An employer who is issued a (a) Waiver of fees—(1) Eligibility for a permit with a validity period of longer fee waiver. Discretionary waiver of the than 1 year must pay the fee for each fees provided in paragraph (b)(1)(i) of year of requested validity at the time the this section are limited as follows: permit is requested; and (i) The party requesting the benefit is (iv) Beginning in FY 2020, the fee may unable to pay the prescribed fee. be adjusted once per year by notice in (ii) A waiver based on inability to pay the Federal Register based on the is consistent with the status or benefit amount of inflation according to the sought, including benefits that require Consumer Price Index for All Urban demonstration of the applicant’s ability Consumers (CPI–U) since the fee was set to support himself or herself, or by law at $200 on July 24, 2018. individuals who seek immigration (8) 9–11 response and biometric entry- status based on a substantial financial exit fee for H–1B Visa. For certain investment. petitioners who employ 50 or more (2) Requesting a fee waiver. A person employees in the United States if more must submit a request for a fee waiver than 50 percent of the petitioner’s on the form prescribed by USCIS in employees are in H–1B, L–1A, or L–1B accordance with the instructions on the nonimmigrant status: $4,000. Collection form. of this fee is scheduled to end on (3) USCIS fees that may be waived. September 30, 2027. Only the following fees may be waived: (9) 9–11 response and biometric entry(i) The following fees for the exit fee for L–1 Visa. For certain following forms may be waived without petitioners who employ 50 or more condition: employees in the United States, if more (A) Application to Replace Permanent than 50 percent of the petitioner’s Resident Card (Form I–90); employees are in H–1B, L–1A, or L–1B (B) Application for Relief Under nonimmigrant status: $4,500. This fee Former Section 212(c) of the will be collected through September 29, Immigration and Nationality Act (Form 2027. I–191); (10) Claimant under section 289 of the (C) Petition to Remove the Conditions Act. No fee. of Residence (Form I–751); (11) Registration requirement for (D) Application for Family Unity petitioners seeking to file H–1B petitions Benefits (Form I–817); on behalf of cap-subject aliens. For each (E) Application for Temporary registration submitted to register for the Protected Status (Form I–821); H–1B cap or advanced degree (F) Application for Suspension of exemption selection process: $215. This Deportation or Special Rule fee will not be refunded if the Cancellation of Removal (Form I–881) PO 00000 Frm 00193 Fmt 4701 Sfmt 4702 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 594 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (pursuant to section 203 of Pub. L. 105– 110); (G) Application to File Declaration of Intention (Form N–300); (H) Request for a Hearing on a Decision in Naturalization Proceedings (Form N–336) (under section 336 of the INA); (I) Application for Naturalization (Form N–400); (J) Application to Preserve Residence for Naturalization Purposes (N–470); (K) Application for Replacement Naturalization/Citizenship Document (N–565); (L) Application for Certificate of Citizenship (N–600); and (M) Application for Citizenship and Issuance of Certificate under section 322 of the Act (N–600K). (ii) The following form fees may be waived based on the conditions described in paragraphs (a)(3)(ii)(A) through (F) of this section: (A) Petition for a CNMI-Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status (Form I–539), only in the case of a noncitizen applying for CW–2 nonimmigrant status; (B) Application for Travel Document (Form I–131), when filed to request humanitarian parole; (C) Notice of Appeal or Motion (Form I–290B), when there is no fee for the underlying application or petition or that fee may be waived; (D) Notice of Appeal of Decision Under Sections 245A or 210 of the Immigration and Nationality Act (Form I–694), if the underlying application or petition was fee exempt, the filing fee was waived, or was eligible for a fee waiver; (E) Application for Employment Authorization (Form I–765), except persons filing under category (c)(33), Deferred Action for Childhood Arrivals (DACA); and (F) Petition for Nonimmigrant Worker (Form I–129) or Application to Extend/ Change Nonimmigrant Status (Form I– 539), only in the case of an alien applying for E–2 CNMI Investor for an extension of stay. (iii) Any fees associated with the filing of any benefit request under 8 U.S.C. 1101(a)(51) and those otherwise self-petitioning under 8 U.S.C. 1154(a)(1) (VAWA self-petitioners), 8 U.S.C. 1101(a)(15)(T) (T visas), 8 U.S.C. 1101(a)(15)(U) (U visas), 8 U.S.C. 1105a (battered spouses of A, G, E–3, or H nonimmigrants), 8 U.S.C. 1229(b)(2) (special rule cancellation for battered spouse or child), and 8 U.S.C. 1254a(a) (Temporary Protected Status). (iv) The following fees may be waived only if the person is exempt from the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 public charge grounds of inadmissibility under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4): (A) Application for Advance Permission to Enter as Nonimmigrant (Form I–192); (B) Application for Waiver for Passport and/or Visa (Form I–193); (C) Application to Register Permanent Residence or Adjust Status (Form I– 485); and (D) Application for Waiver of Grounds of Inadmissibility (Form I–601). (4) Immigration Court fees. The provisions relating to the authority of the immigration judges or the Board to waive fees prescribed in paragraph (b) of this section in cases under their jurisdiction can be found at 8 CFR 1003.8 and 1003.24. (5) Fees under the Freedom of Information Act (FOIA). FOIA fees may be waived or reduced if DHS determines that such action would be in the public interest because furnishing the information can be considered as primarily benefiting the general public. (b) Humanitarian fee exemptions. Persons in the following categories are exempt from paying certain fees as follows: (1) Persons seeking or granted Special Immigrant Juvenile classification who file the following forms related to the Special Immigrant Juvenile classification or adjustment of status pursuant to section 245(h) of the Act, 8 U.S.C. 1255(h): (i) Application for Travel Document (Form I–131). (ii) Notice of Appeal or Motion (Form I–290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I–485). (iii) Application to Register Permanent Residence or Adjust Status (Form I–485). (iv) Application for Waiver of Ground of Inadmissibility (Form I–601). (v) Application for Employment Authorization (Form I–765). (2) Persons seeking or granted T nonimmigrant status who file the following forms related to the T nonimmigrant classification or adjustment of status pursuant to INA section 245(l), 8 U.S.C. 1255(l): (i) Application for Travel Document (Form I–131). (ii) Application for Advance Permission to Enter as a Nonimmigrant (Form I–192). (iii) Application for Waiver of Passport and/or Visa (Form I–193). (iv) Notice of Appeal or Motion (Form I–290B), if filed for any benefit request filed before adjustment of status or a PO 00000 Frm 00194 Fmt 4701 Sfmt 4702 motion or appeal filed for an Application to Register Permanent Residence or Adjust Status (Form I–485) if applicable. (v) Application to Register Permanent Residence or Adjust Status (Form I– 485). (vi) Application to Extend/Change Nonimmigrant Status (Form I–539). (vii) Application for Waiver of Ground of Inadmissibility (Form I–601). (viii) Application for Employment Authorization (Form I–765). (3) Persons seeking or granted special immigrant visa or status as Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF and their derivative beneficiaries, who file the following forms related to the Special Immigrant classification or adjustment of status pursuant to such classification: (i) Application for Travel Document (Form I–131). (ii) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I– 212). (iii) Notice of Appeal or Motion (Form I–290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I–485). (iv) Application to Register Permanent Residence or Adjust Status (Form I– 485). (v) Application for Waiver of Ground of Inadmissibility (Form I–601). (vi) Application for initial Employment Authorization (Form I– 765). (4) Persons seeking or granted adjustment of status as abused spouses and children under the Cuban Adjustment Act (CAA) and the Haitian Refugee Immigration Fairness Act (HRIFA) are exempt from paying the following fees for forms related to those benefits: (i) Application for Travel Document (Form I–131). (ii) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I– 212). (iii) Notice of Appeal or Motion (Form I–290B), if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I–485). (iv) Application to Register Permanent Residence or Adjust Status (Form I– 485). (v) Application for Waiver of Ground of Inadmissibility (Form I–601). E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (vi) Application for Employment Authorization (Form I–765). (5) Persons seeking U nonimmigrant status who file the following forms related to the U nonimmigrant status are exempt from paying fees if filed before the petitioner files an Application to Register Permanent Residence or Adjust Status (Form I–485): (i) Application for Advance Permission to Enter as a Nonimmigrant (Form I–192). (ii) Application for Waiver of Passport and/or Visa (Form I–193). (iii) Notice of Appeal or Motion (Form I–290B). (iv) Application to Extend/Change Nonimmigrant Status (Form I–539). (v) Application for Employment Authorization (Form I–765) for their initial request for principals and derivatives submitted under 8 CFR 274a.12(a)(19) and (20) and (c)(14). (6) Person seeking or granted immigrant classification as VAWA selfpetitioners and derivatives as defined in section 101(a)(51)(A) and (B) of the Act or those otherwise self-petitioning for immigrant classification under section 204(a)(1) of the Act, 8 U.S.C. 1154(a)(1), are exempt from paying the following fees for forms related to the benefit: (i) When the Petition for Amerasian, Widow(er), or Special Immigrant (Form I–360) and Application to Register Permanent Residence or Adjust Status (Form I–485) are concurrently filed or pending: (A) Application for Travel Document (Form I–131). (B) Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I– 212). (C) Notice of Appeal or Motion (Form I–290B) if filed for any benefit request filed before adjustment of status or a motion filed for an Application to Register Permanent Residence or Adjust Status (Form I–485). (D) Application for Waiver of Grounds of Inadmissibility (Form I–601). (E) Application for Employment Authorization (Form I–765) for initial requests submitted under 8 CFR 274a.12(c)(9) and (14) and section 204(a)(1)(K) of the Act. (ii) When the Petition for Amerasian, Widow(er), or Special Immigrant (Form I–360) is filed as a standalone selfpetition: (A) Notice of Appeal or Motion (Form I–290B) for a motion or appeal of a Petition for Amerasian, Widow(er), or Special Immigrant (Form I–360). (B) Application for Employment Authorization (Form I–765) for initial requests submitted under 8 CFR 274a.12(c)(14) and section 204(a)(1)(K) of the Act, 8 U.S.C 1154(a)(1)(K). VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (7) Abused spouses and children applying for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA) are exempt from paying the following fees for forms related to the benefit: (i) Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–100 (NACARA)) (Form I–881). (ii) Application for Waiver of Grounds of Inadmissibility (Form I–601). (iii) Application for Employment Authorization (Form I–765) submitted under 8 CFR 274a.12(c)(10). (8) Battered spouses and children of a lawful permanent resident (LPR) or U.S. citizen applying for cancellation of removal and adjustment of status under section 240A(b)(2) of the Act are exempt from paying the following fees for forms related to the benefit: (i) Application for Waiver of Ground of Inadmissibility (Form I–601). (ii) Application for Employment Authorization (Form I–765) for their initial request under 8 CFR 274a.12(c)(10). (9) Refugees, persons paroled as refugees, or lawful permanent residents who obtained such status as refugees in the United States are exempt from paying the following fees: (i) Application for Travel Document (Form I–131). (ii) Application for Carrier Documentation (Form I–131A). (iii) Application for Employment Authorization (Form I–765). (iv) Application to Register Permanent Residence or Adjust Status (Form I– 485). (c) Director’s waiver or exemption exception. The Director of USCIS may authorize the waiver of or exemption from, in whole or in part, a form fee required by § 106.2 that is not otherwise waivable under this section, if the Director determines that such action is in the public interest and consistent with the applicable law. This discretionary authority may be delegated only to the USCIS Deputy Director. § 106.4 Premium processing service. (a) General. A person may submit a request to USCIS for premium processing of certain immigration benefit requests, subject to processing timeframes and fees, as described in this section. (b) Submitting a request. A request must be submitted on the form and in the manner prescribed by USCIS in the form instructions. If the request for premium processing is submitted together with the underlying PO 00000 Frm 00195 Fmt 4701 Sfmt 4702 595 immigration benefit request, all required fees in the correct amount must be paid. The fee to request premium processing service may not be waived and must be paid in addition to other filing fees. USCIS may require the premium processing service fee be paid in a separate remittance from other filing fees and preclude combined payments in the applicable form instructions. (c) Designated benefit requests and fee amounts. Benefit requests designated for premium processing and the corresponding fees to request premium processing service are as follows: (1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA, 8 U.S.C. 1101(a)(15)(E)(i), (ii), or (iii): $2,500. (2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), or section 222(a) of the Immigration Act of 1990, Public Law 101–649: $2,500. (3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(b): $1,500. (4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA, 8 U.S.C. 1101(a)(15)(H)(iii): $2,500. (5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA, 8 U.S.C. 1101(a)(15(L): $2,500. (6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA, 8 U.S.C. 1101(a)(15)(O)(i): $2,500. (7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA, 8 U.S.C. 1101(a)(15)(P)(i): $2,500. (8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA, 8 U.S.C. 1101(a)(15)(Q): $2,500. (9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA, 8 U.S.C. 1101(a)(15)(R): $1,500. (10) Application for classification of a nonimmigrant described in section 214(e) of the INA, 8 U.S.C. 1184(e): $2,500. (11) Petition for classification under section 203(b)(1)(A) of the INA, 8 U.S.C. 1153(b)(1)(A): $2,500. (12) Petition for classification under section 203(b)(1)(B) of the INA, 8 U.S.C. 1153(b)(1)(B): $2,500. (13) Petition for classification under section 203(b)(2)(A) of the INA, 8 U.S.C. 1153(b)(2)(A) not involving a waiver under section 203(b)(2)(B) of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500. E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 596 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (14) Petition for classification under section 203(b)(3)(A)(i) of the INA, 8 U.S.C. 1153(b)(3)(A)(i): $2,500. (15) Petition for classification under section 203(b)(3)(A)(ii) of the INA, 8 U.S.C. 1153(b)(3)(A)(ii): $2,500. (16) Petition for classification under section 203(b)(3)(A)(iii) of the INA, 8 U.S.C. 1153(b)(3)(A)(iii): $2,500. (17) Petition for classification under section 203(b)(1)(C) of the INA, 8 U.S.C. 1153(b)(1)(C): $2,500. (18) Petition for classification under section 203(b)(2) of the INA, 8 U.S.C. 1153(b)(2), involving a waiver under section 203(b)(2)(B) of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500. (19) Application under section 248 of the INA, 8 U.S.C. 1258, to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA, 8 U.S.C. 1101(a)(15)(F), (J), or (M): $1,750. (20) Application under section 248 of the INA, 8 U.S.C. 1258, to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, 8 U.S.C. 1101(a)(15)(E), (H), (L), (O), (P), or (M), or to extend stay in such classification: $1,750. (21) Application for employment authorization: $1,500. (d) Fee adjustments. The fee to request premium processing service may be adjusted by notification in the Federal Register on a biennial basis based on the percentage by which the Consumer Price Index for All Urban Consumers for the month of June preceding the date on which such adjustment takes effect exceeds the Consumer Price Index for All Urban Consumers for the same month of the second preceding calendar year. (e) Processing timeframes. The processing timeframes for a request for premium processing are as follows: (1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA: 15 business days. (2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the Immigration Act of 1990, Public Law 101–649: 15 business days. (3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA: 15 business days. (4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA: 15 business days. (5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA: 15 business days. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 (6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA: 15 business days. (7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA: 15 business days. (8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA: 15 business days. (9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA: 15 business days. (10) Application for classification of a nonimmigrant described in section 214(e) of the INA: 15 business days. (11) Petition for classification under section 203(b)(1)(A) of the INA: 15 business days. (12) Petition for classification under section 203(b)(1)(B) of the INA: 15 business days. (13) Petition for classification under section 203(b)(2)(A) of the INA not involving a waiver under section 203(b)(2)(B) of the INA: 15 business days. (14) Petition for classification under section 203(b)(3)(A)(i) of the INA: 15 business days. (15) Petition for classification under section 203(b)(3)(A)(ii) of the INA: 15 business days. (16) Petition for classification under section 203(b)(3)(A)(iii) of the INA: 15 business days. (17) Petition for classification under section 203(b)(1)(C) of the INA: 45 business days. (18) Petition for classification under section 203(b)(2) of the INA involving a waiver under section 203(b)(2)(B) of the INA: 45 business days. (19) Application under section 248 of the INA to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA: 30 business days. (20) Application under section 248 of the INA to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay in such classification: 30 business days. (21) Application for employment authorization: 30 business days. (22) For the purpose of this section a business day is a day that the Federal Government is open for business, and does not include weekends, federally observed holidays, or days on which Federal Government offices are closed, such as for weather-related or other reasons. The closure may be nationwide or in the region where the adjudication PO 00000 Frm 00196 Fmt 4701 Sfmt 4702 of the benefit for which premium processing is sought will take place. (f) Processing requirements and refunds. (1) USCIS will issue an approval notice, denial notice, a notice of intent to deny, or a request for evidence within the premium processing timeframe. (2) Premium processing timeframes will commence: (i) For those benefits described in paragraphs (e)(1) through (16) of this section, on the date the form prescribed by USCIS, together with the required fee(s), are received by USCIS. (ii) For those benefits described in paragraphs (e)(17) through (21) of this section, on the date that all prerequisites for adjudication, the form prescribed by USCIS, and fee(s) are received by USCIS. (3) In the event USCIS issues a notice of intent to deny or a request for evidence, the premium processing timeframe will stop and will recommence with a new timeframe as specified in paragraphs (e)(1) through (21) of this section on the date that USCIS receives a response to the notice of intent to deny or the request for evidence. (4) Except as provided in paragraph (f)(5) of this section, USCIS will refund the premium processing service fee but continue to process the case if USCIS does not take adjudicative action described in paragraph (f)(1) of this section within the applicable processing timeframe as required in paragraph (e) of this section. (5) USCIS may retain the premium processing fee and not take an adjudicative action described in paragraph (f)(1) of this section on the request within the applicable processing timeframe, and not notify the person who filed the request, if USCIS opens an investigation for fraud or misrepresentation relating to the immigration benefit request. (g) Availability. (1) USCIS will announce by its official internet website, currently https:// www.uscis.gov, the benefit requests described in paragraph (c) of this section for which premium processing may be requested, the dates upon which such availability commences or ends, or any conditions that may apply. (2) USCIS may suspend the availability of premium processing for immigration benefit requests designated for premium processing if circumstances prevent the completion of processing of a significant number of such requests within the applicable processing timeframe. E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules § 106.5 Authority to certify records. The Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records. § 106.6 DHS severability. The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, the remaining provisions will continue in effect. PART 204—IMMIGRANT PETITIONS 7. The authority citation for part 204 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1324a, 1641; 8 CFR part 2. 8. Section 204.3 is amended by: a. Revising and republishing the definitions of ‘‘Advanced processing application’’ and ‘‘Orphan petition’’ in paragraph (b); ■ b. Revising and republishing paragraph (d) introductory text; and ■ c. Revising paragraphs (h)(3), (7), (13), and (14). The revisions and republications read as follows: ■ ■ § 204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-Hague Adoption Convention cases). khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (b) * * * Advanced processing application means Form I–600A (Application for Advanced Processing of Orphan Petition) completed in accordance with the form’s instructions and submitted with the required supporting documentation and the fee as required in 8 CFR 106.2. The application must be signed in accordance with the form’s instructions by the married petitioner and spouse, or by the unmarried petitioner. * * * * * Orphan petition means Form I–600 (Petition to Classify Orphan as an Immediate Relative). The petition must be completed in accordance with the form’s instructions and submitted with the required supporting documentation and, if there is not a pending, or currently valid and approved advanced processing application, the fee as required in 8 CFR 106.2. The petition must be signed in accordance with the form’s instructions by the married petitioner and spouse, or the unmarried petitioner. * * * * * (d) Supporting documentation for a petition for an identified orphan. Any document not in the English language VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 must be accompanied by a certified English translation. If an orphan has been identified for adoption and the advanced processing application is pending, the prospective adoptive parents may file the orphan petition at the USCIS office where the application is pending. The prospective adoptive parents who have an approved advanced processing application must file an orphan petition and all supporting documents within 15 months of the date of the approval of the advanced processing application. If the prospective adoptive parents fail to file the orphan petition within the approval validity period of the advanced processing application, the advanced processing application will be deemed abandoned pursuant to paragraph (h)(7) of this section. If the prospective adoptive parents file the orphan petition after the approval period of the advanced processing application has expired, the petition will be denied pursuant to paragraph (h)(13) of this section. Prospective adoptive parents who do not have an advanced processing application approved or pending may file the application and petition concurrently on one Form I– 600 if they have identified an orphan for adoption. An orphan petition must be accompanied by full documentation as follows: * * * * * (h) * * * (3) Advanced processing application approved. If the advanced processing application is approved: (i) The prospective adoptive parents will be advised in writing. A notice of approval expires 15 months after the date on which USCIS received the Federal Bureau of Investigation (FBI) response on the applicant’s, and any additional adult member of the household’s, biometrics, unless approval is revoked. If USCIS received the responses on different days, the 15month period begins on the earliest response date. The notice of approval will specify the expiration date. (ii) USCIS may extend the validity period for the approval of a Form I– 600A if requested in accordance with 8 CFR 106.2(a)(31). An applicant may not file a Form I–600A Supplement 3 seeking extension of an approval notice more than 90 days before the expiration of the validity period for the Form I– 600A approval but must do so on or before the date on which the validity period expires if the applicant seeks an extension. (iii) If the Form I–600A approval is for more than one orphan, the prospective adoptive parents may file a petition for PO 00000 Frm 00197 Fmt 4701 Sfmt 4702 597 each of the additional children, to the maximum number approved. (iv) It does not guarantee that the orphan petition will be approved. * * * * * (7) Advanced processing application deemed abandoned for failure to file orphan petition within the approval validity period of the advanced processing application. If an orphan petition is not properly filed within 15 months of the approval date of the advanced processing application: (i) The application will be deemed abandoned; (ii) Supporting documentation will be returned to the prospective adoptive parents, except for documentation submitted by a third party which will be returned to the third party, and documentation relating to the biometric checks; (iii) The director will dispose of documentation relating to biometrics checks in accordance with current policy; and (iv) Such abandonment will be without prejudice to a new filing at any time with fee. * * * * * (13) Orphan petition denied: petitioner files orphan petition after the approval of the advanced processing application has expired. If the petitioner files the orphan petition after the advanced processing application has expired, the petition will be denied. This action will be without prejudice to a new filing at any time with fee. (14) Revocation. (i) The approval of an advanced processing application or an orphan petition shall be automatically revoked in accordance with 8 CFR 205.1 if an applicable reason exists. The approval of an advanced processing application or an orphan petition shall be revoked if the director becomes aware of information that would have resulted in denial had it been known at the time of adjudication. Such a revocation or any other revocation on notice shall be made in accordance with 8 CFR 205.2. (ii) The approval of a Form I–600A or Form I–600 combination filing is automatically revoked if before the final decision on a beneficiary’s application for admission with an immigrant visa or for adjustment of status: (A) The marriage of the applicant terminates; or (B) An unmarried applicant marries. (iii) Revocation is without prejudice to the filing of a new Form I–600A or Form I–600 combination filing, with fee, accompanied by a new or updated home study, reflecting the change in marital status. If a Form I–600 had already been E:\FR\FM\04JAP2.SGM 04JAP2 598 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules filed based on the approval of the prior Form I–600A, a new Form I–600 must also be filed with the new Form I–600A under this paragraph (h)(14). The new Form I–600 will be adjudicated only if the new Form I–600A is approved. * * * * * ■ 9. Section 204.5 is amended by republishing paragraphs (p)(4) heading and (p)(4)(i) to read as follows: § 204.5 Petitions for employment-based immigrants. * * * * * (p) * * * (4) Application for employment authorization. (i) To request employment authorization, an eligible applicant described in paragraph (p)(1), (2), or (3) of this section must: (A) File an application for employment authorization (Form I– 765), with USCIS, in accordance with 8 CFR 274a.13(a) and the form instructions. (B) Submit biometric information as may be provided in the applicable form instructions. * * * * * ■ 10. Section 204.312 is amended by revising and republishing paragraph (e)(3)(i) and paragraph (e)(3)(ii) introductory text to read as follows: § 204.312 Adjudication of the Form I–800A. khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (e) * * * (3)(i) If the 15-month validity period for a Form I–800A approval is about to expire, the applicant: (A) May file Form I–800A Supplement 3 as described in 8 CFR 106.2(a)(31) to request an extension. (B) May not file a Form I–800A Supplement 3 seeking extension of an approval notice more than 90 days before the expiration of the validity period for the Form I–800A approval, but must do so on or before the date on which the validity period expires if the applicant seeks an extension. (ii) Any Form I–800A Supplement 3 that is filed to obtain an extension or update of the approval of a Form I–800A or to change of Hague Convention countries must be accompanied by: * * * * * ■ 11. Section 204.313 is amended by revising and republishing paragraph (a) to read as follows: § 204.313 Filing and adjudication of a Form I–800. (a) When to file. Once a Form I–800A has been approved and the Central Authority has proposed placing a child for adoption by the petitioner, the petitioner may file the Form I–800. The petitioner must complete the Form I– VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 800 in accordance with the instructions that accompany the Form I–800 and sign the Form I–800 personally. In the case of a married petitioner, one spouse cannot sign for the other, even under a power of attorney or similar agency arrangement. The petitioner may then file the Form I–800 with the stateside or overseas USCIS office or the visa issuing post that has jurisdiction under § 204.308(b) to adjudicate the Form I– 800, together with the evidence specified in this section and the filing fee specified in 8 CFR 106.2, if more than one Form I–800 is filed for children who are not birth siblings. * * * * * PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 12. The authority citation for part 212 is revised to read as follows: ■ Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1185 note (sec. 7209, Pub. L. 108– 458, 118 Stat. 3638), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR part 2. Section 212.1(q) also issued under sec. 702, Pub. L. 110–229, 122 Stat. 754, 854. 13. Section 212.19 is amended by revising and republishing paragraphs (b)(1), (c)(1), (e), (h)(1), and (j) to read as follows: ■ § 212.19 Parole for entrepreneurs. * * * * * (b) * * * (1) Filing of initial parole request form. An alien seeking an initial grant of parole as an entrepreneur of a startup entity must file Form I–941, Application for Entrepreneur Parole, with USCIS, with the required fee, and supporting documentary evidence in accordance with this section and the form instructions, demonstrating eligibility as provided in paragraph (b)(2) of this section. * * * * * (c) * * * (1) Filing of re-parole request form. Before expiration of the initial period of parole, an entrepreneur parolee may request an additional period of parole based on the same start-up entity that formed the basis for his or her initial period of parole granted under this section. To request such parole, an entrepreneur parolee must timely file an application for entrepreneur parole with USCIS on the form prescribed by USCIS with the required fee and supporting documentation in accordance with the form instructions, demonstrating PO 00000 Frm 00198 Fmt 4701 Sfmt 4702 eligibility as provided in paragraph (c)(2) of this section. * * * * * (e) Collection of biometric information. An alien seeking an initial grant of parole or re-parole will be required to submit biometric information. An alien seeking re-parole may be required to submit biometric information. * * * * * (h) * * * (1) The entrepreneur’s spouse and children who are seeking parole as derivatives of such entrepreneur must individually file Form I–131, Application for Travel Document. Such application must also include evidence that the derivative has a qualifying relationship to the entrepreneur and otherwise merits a grant of parole in the exercise of discretion. Such spouse or child will be required to appear for collection of biometrics in accordance with the form instructions or upon request. * * * * * (j) Reporting of material changes. An alien granted parole under this section must immediately report any material change(s) to USCIS. If the entrepreneur will continue to be employed by the start-up entity and maintain a qualifying ownership interest in the start-up entity, the entrepreneur must submit a form prescribed by USCIS, with any applicable fee in accordance with the form instructions to notify USCIS of the material change(s). The entrepreneur parolee must immediately notify USCIS in writing if they will no longer be employed by the start-up entity or ceases to possess a qualifying ownership stake in the start-up entity. * * * * * PART 214—NONIMMIGRANT CLASSES 14. The authority citation for part 214 continues to read as follows: ■ Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305, 1357, and 1372; sec. 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477– 1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 1806). 15. Section 214.1 is amended by republishing paragraph (c)(5) to read as follows: ■ § 214.1 Requirements for admission, extension, and maintenance of status. * E:\FR\FM\04JAP2.SGM * * 04JAP2 * * Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules (c) * * * (5) Decision on application for extension or change of status. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of USCIS. The denial of an application for extension of stay may not be appealed. * * * * * ■ 16. Section 214.2 is amended by: ■ a. Revising and republishing paragraphs (e)(8)(iii) through (v), (e)(23)(viii), (h)(2)(i)(A), (h)(2)(ii), (h)(5)(i)(B), and (h)(19)(i) introductory text; ■ b. Revising paragraph (m)(14)(ii) introductory text; ■ c. Revising and republishing paragraphs (o)(2)(iv)(F), (p)(2)(iv)(F), and (q)(5)(ii); ■ d. Republishing the definition for ‘‘Petition’’ in paragraph (r)(3); ■ e. Revising paragraph (r)(5); ■ f. Republishing paragraph (w)(5) and (w)(15)(iii); and ■ g. Revising paragraph (w)(16). The revisions and republications read as follows: § 214.2 Special requirements for admission, extension, and maintenance of status. khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (e) * * * (8) * * * (iii) Substantive changes. Approval of USCIS must be obtained where there will be a substantive change in the terms or conditions of E status. The treaty alien must file a new application in accordance with the instructions on the form prescribed by USCIS requesting extension of stay in the United States, plus evidence of continued eligibility for E classification in the new capacity. Or the alien may obtain a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry. USCIS will deem there to have been a substantive change necessitating the filing of a new application where there has been a fundamental change in the employing entity’s basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed. (iv) Non-substantive changes. Neither prior approval nor a new application is required if there is no substantive, or fundamental, change in the terms or conditions of the alien’s employment that would affect the alien’s eligibility for E classification. Further, prior approval is not required if corporate changes occur which do not affect the previously approved employment relationship, or are otherwise non- VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 substantive. To facilitate admission, the alien may: (A) Present a letter from the treatyqualifying company through which the alien attained E classification explaining the nature of the change; (B) Request a new approval notice reflecting the non-substantive change by filing an application with a description of the change; or (C) Apply directly to Department of State for a new E visa reflecting the change. An alien who does not elect one of the three options contained in paragraphs (e)(8)(iv)(A) through (C) of this section, is not precluded from demonstrating to the satisfaction of the immigration officer at the port-of-entry in some other manner, his or her admissibility under section 101(a)(15)(E) of the Act. (v) Advice. To request advice from USCIS as to whether a change is substantive, an alien may file an application with a complete description of the change. In cases involving multiple employees, an alien may request that USCIS determine if a merger or other corporate restructuring requires the filing of separate applications by filing a single application and attaching a list of the related receipt numbers for the employees involved and an explanation of the change or changes. * * * * * (23) * * * (viii) Information for background checks. USCIS may require an applicant for E–2 CNMI Investor status, including but not limited to any applicant for derivative status as a spouse or child, to submit biometrics as required under 8 CFR 103.16. * * * * * (h) * * * (2) * * * (i) * * * (A) General. A United States employer seeking to classify an alien as an H–1B, H–2A, H–2B, or H–3 temporary employee must file a petition on the form prescribed by USCIS in accordance with the form instructions. * * * * * (ii) Multiple beneficiaries. Up to 25 named beneficiaries may be included in an H–1C, H–2A, H–2B, or H–3 petition if the beneficiaries will be performing the same service, or receiving the same training, for the same period, and in the same location. If more than 25 named beneficiaries are being petitioned for, an additional petition is required. Petitions for H–2A and H–2B workers from countries not designated in accordance PO 00000 Frm 00199 Fmt 4701 Sfmt 4702 599 with paragraph (h)(6)(i)(E) of this section must be filed separately. * * * * * (5) * * * (i) * * * (B) Multiple beneficiaries. The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. A single petition can include more than one named beneficiary if the total number is 25 or less and does not exceed the number of positions indicated on the relating temporary labor certification. * * * * * (19) * * * (i) A United States employer (other than an exempt employer defined in paragraph (h)(19)(iii) of this section, or an employer filing a petition described in paragraph (h)(19)(v) of this section) who files a petition or application must include the additional American Competitiveness and Workforce Improvement Act (ACWIA) fee referenced in 8 CFR 106.2, if the petition is filed for any of the following purposes: * * * * * (m) * * * (14) * * * (ii) Application. An M–1 student must apply for permission to accept employment for practical training on Form I–765, with fee as contained in 8 CFR part 106, accompanied by a properly endorsed Form I–20 by the designated school official for practical training. The application must be submitted before the program end date listed on the student’s Form I–20 but not more than 90 days before the program end date. The designated school official must certify on Form I– 538 that: * * * * * (o) * * * (2) * * * (iv) * * * (F) Multiple beneficiaries. More than one O–2 accompanying alien may be included on a petition if they are assisting the same O–1 alien for the same events or performances, during the same period, and in the same location. Up to 25 named beneficiaries may be included per petition. * * * * * (p) * * * (2) * * * (iv) * * * (F) Multiple beneficiaries. More than one beneficiary may be included in a P petition if they are members of a team or group, or if they will provide essential support to P–1, P–2, or P–3 E:\FR\FM\04JAP2.SGM 04JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 600 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules beneficiaries performing in the same location and in the same occupation. Up to 25 named beneficiaries may be included per petition. * * * * * (q) * * * (5) * * * (ii) Petition for multiple participants. The petitioner may include up to 25 named participants on a petition. The petitioner shall include the name, date of birth, nationality, and other identifying information required on the petition for each participant. The petitioner must also indicate the United States consulate at which each participant will apply for a Q–1 visa. For participants who are visa-exempt under 8 CFR 212.1(a), the petitioner must indicate the port of entry at which each participant will apply for admission to the United States. * * * * * (r) * * * (3) * * * Petition means the form or as may be prescribed by USCIS, a supplement containing attestations required by this section, and the supporting evidence required by this part. * * * * * (5) Extension of stay or readmission. An R–1 alien who is maintaining status or is seeking readmission and who satisfies the eligibility requirements of this section may be granted an extension of R–1 stay or readmission in R–1 status for the validity period of the petition, up to 30 months, provided the total period of time spent in R–1 status does not exceed a maximum of 5 years. A Petition for a Nonimmigrant Worker to request an extension of R–1 status must be filed by the employer with a supplement prescribed by USCIS containing attestations required by this section, the fee specified in 8 CFR part 106, and the supporting evidence, in accordance with the applicable form instructions. * * * * * (w) * * * (5) Petition requirements. An employer who seeks to classify an alien as a CW–1 worker must file a petition with USCIS and pay the requisite petition fee plus the CNMI education funding fee and the fraud prevention and detection fee as prescribed in the form instructions and 8 CFR part 106. If the beneficiary will perform services for more than one employer, each employer must file a separate petition with fees with USCIS. * * * * * (15) * * * (iii) If the eligible spouse and/or minor child(ren) are present in the VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 CNMI, the spouse or child(ren) may apply for CW–2 dependent status on Form I–539 (or such alternative form as USCIS may designate) in accordance with the form instructions. The CW–2 status may not be approved until approval of the CW–1 petition. (16) Biometrics and other information. The beneficiary of a CW–1 petition or the spouse or child applying for a grant or extension of CW–2 status, or a change of status to CW–2 status, must submit biometric information as requested by USCIS. * * * * * ■ 17. Section 214.14 is amended by revising and republishing paragraph (c)(1) introductory text to read as follows: § 214.14 Alien victims of certain qualifying criminal activity. * * * * * (c) * * * (1) Filing a petition. USCIS has sole jurisdiction over all petitions for U nonimmigrant status. An alien seeking U–1 nonimmigrant status must submit a Petition for U Nonimmigrant Status on the form prescribed by USCIS, and initial evidence to USCIS in accordance with this paragraph (c)(1) and the form instructions. A petitioner who received interim relief is not required to submit initial evidence with a Petition for U Nonimmigrant Status if he or she wishes to rely on the law enforcement certification and other evidence that was submitted with the request for interim relief. * * * * * PART 240—VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND SPECIAL RULE CANCELLATION OF REMOVAL 18. The authority citation for part 240 continues to read as follows: ■ Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105–100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105–277 (112 Stat. 2681); 8 CFR part 2. 19. Section 240.63 is amended by revising and republishing paragraph (a) to read as follows: ■ § 240.63 Application process. (a) Form and fees. Except as provided in paragraph (b) of this section, the application must be made on the form prescribed by USCIS for this program and filed in accordance with the instructions for that form. An applicant who submitted to EOIR a completed, Application for Suspension of Deportation, before the effective date of PO 00000 Frm 00200 Fmt 4701 Sfmt 4702 the form prescribed by USCIS may apply with USCIS by submitting the completed Application for Suspension of Deportation attached to a completed first page of the application. Each application must be filed with the required fees as provided in 8 CFR 106.2. * * * * * PART 244—TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES 20. The authority citation for part 244 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2. 21. Section 244.6 is revised and republished to read as follows: ■ § 244.6 Application. (a) An application for Temporary Protected Status must be submitted in accordance with the form instructions, the applicable country-specific Federal Register notice that announces the procedures for TPS registration or reregistration and, except as otherwise provided in this section, with the appropriate fees as described in 8 CFR part 106. (b) An applicant for TPS may also request an employment authorization document pursuant to 8 CFR part 274a by filing an Application for Employment Authorization in accordance with the form instructions and in accordance with 8 CFR 106.2 and 106.3. ■ 22. Section 244.17 is amended by republishing paragraph (a) to read as follows: § 244.17 Periodic registration. (a) Aliens granted Temporary Protected Status must re-register periodically in accordance with USCIS instructions. Such registration applies to nationals of those foreign states designated for more than one year by DHS or where a designation has been extended for a year or more. Applicants for re-registration must apply during the period provided by USCIS. Reregistration applicants do not need to pay the fee that was required for initial registration except the biometric services fee, unless that fee is waived in the applicable form instructions, and if requesting an employment authorization document, the application fee for an Application for Employment Authorization. By completing the application, applicants attest to their continuing eligibility. Such applicants do not need to submit additional E:\FR\FM\04JAP2.SGM 04JAP2 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules supporting documents unless USCIS requests that they do so. * * * * * ■ 28. Section 245a.4 is amended by republishing paragraph (b)(5)(iii) to read as follows: PART 245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE § 245a.4 Adjustment to lawful resident status of certain nationals of countries for which extended voluntary departure has been made available. 23. The authority citation for part 245 is revised to read as follows: * ■ Authority: 8 U.S.C. 1101, 1103, 1182, 1252, 1255; Pub. L. 105–100, section 202, 111 Stat. 2160, 2193; Pub. L. 105–277, section 902, 112 Stat. 2681; Pub. L. 110–229, tit. VII, 122 Stat. 754; 8 CFR part 2. 24. Section 245.1 is amended by: a. Revising paragraph (f); and b. Removing the parenthetical authority citation at the end of the section. The revision reads as follows: ■ ■ ■ § 245.1 § 245a.12 Eligibility. * * * * (f) Concurrent applications to overcome grounds of inadmissibility. Except as provided in 8 CFR parts 235 and 249, an application under this part shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the United States. * * * * * PART 245a—ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION AND NATIONALITY ACT Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note. 26. Section 245a.2 is amended by republishing paragraph (e)(3) to read as follows: ■ § 245a.2 Application for temporary residence. khammond on DSKJM1Z7X2PROD with PROPOSALS2 * * * * * (e) * * * (3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. * * * * * ■ 27. Section 245a.3 is amended by republishing paragraph (d)(3) to read as follows: § 245a.3 Application for adjustment from temporary to permanent resident status. VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 * * * * (d) Application and supporting documentation. Each applicant for LIFE Legalization adjustment of status must submit the form prescribed by USCIS completed in accordance with the form instructions accompanied by the required evidence. * * * * * PART 264—REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES 30. The authority citation for part 264 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1201, 1303–1305; 8 CFR part 2. 31. Section 264.5 is amended by revising and republishing paragraph (a) to read as follows: ■ § 264.5 Application for a replacement Permanent Resident Card. 25. The authority citation for part 245a continues to read as follows: ■ * * * * (d) * * * (3) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. * * * * * Filing and applications. * * * * * * * (b) * * * (5) * * * (iii) A separate application must be filed by each applicant with the fees required by 8 CFR 106.2. * * * * * ■ 29. Section 245a.12 is amended by republishing paragraph (d) introductory text to read as follows: (a) Filing instructions. A request to replace a Permanent Resident Card must be filed in accordance with the appropriate form instructions and with the fee specified in 8 CFR 106.2. * * * * * PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 32. The authority citation for part 274a is revised to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 114–74, 129 Stat. 599 (28 U.S.C. 2461 note); 8 CFR part 2. 33. Section 274a.12 is amended by revising and republishing paragraphs (b)(9), (13), and (14) to read as follows: ■ § 274a.12 Classes of aliens authorized to accept employment. * * * * * (b) * * * (9) A temporary worker or trainee (H– 1, H–2A, H–2B, or H–3), pursuant to 8 PO 00000 Frm 00201 Fmt 4701 Sfmt 4702 601 CFR 214.2(h), or a nonimmigrant specialty occupation worker pursuant to section 101(a)(15)(H)(i)(b)(1) of the Act. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional H–2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new petition for H– 2B classification. If a new petition is not filed within 30 days, employment authorization will cease. If a new petition is filed within 30 days, the professional athlete’s employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. In the case of a nonimmigrant with H–1B status, employment authorization will automatically continue upon the filing of a qualifying petition under 8 CFR 214.2(h)(2)(i)(H) until such petition is adjudicated, in accordance with section 214(n) of the Act and 8 CFR 214.2(h)(2)(i)(H). * * * * * (13) An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O–1), and an accompanying alien (O–2), pursuant to 8 CFR 214.2(o). An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional O–1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new petition for O nonimmigrant classification. If a new petition is not filed within 30 days, employment authorization will cease. If a new petition is filed within 30 days, the professional athlete’s employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. (14) An athlete, artist, or entertainer (P–1, P–2, or P–3), pursuant to 8 CFR 214.2(p). An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional P–1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new E:\FR\FM\04JAP2.SGM 04JAP2 602 Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Proposed Rules organization, within which time the new organization is expected to file a new petition for P–1 nonimmigrant classification. If a new petition is not filed within 30 days, employment authorization will cease. If a new petition is filed within 30 days, the professional athlete’s employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. * * * * * Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security. [FR Doc. 2022–27066 Filed 1–3–23; 8:45 am] khammond on DSKJM1Z7X2PROD with PROPOSALS2 BILLING CODE 9111–97–P VerDate Sep<11>2014 20:56 Jan 03, 2023 Jkt 259001 PO 00000 Frm 00202 Fmt 4701 Sfmt 9990 E:\FR\FM\04JAP2.SGM 04JAP2

Agencies

DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Proposed Rules]
[Pages 402-602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27066]

[[Page 401]]

Vol. 88

Wednesday,

No. 2

January 4, 2023

Part II

Department of Homeland Security

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

8 CFR Part 103, 106, et al.

U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Proposed Rule

Federal Register / Vol. 88 , No. 2 / Wednesday, January 4, 2023 /
Proposed Rules

[[Page 402]]

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

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 106, 204, 212, 214, 240, 244, 245, 245a, 264 and
274a

[CIS No. 2687-21; DHS Docket No. USCIS 2021-0010]
RIN 1615-AC68

U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements

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

ACTION: Proposed rule.

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

SUMMARY: The Department of Homeland Security (DHS) proposes to adjust
certain immigration and naturalization benefit request fees charged by
U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a
comprehensive biennial fee review and determined that its costs have
increased considerably since its previous fee adjustment due to
expanded humanitarian programs, higher demand, increased processing
times, and a need for more USCIS employees. USCIS cannot maintain
adequate service levels with the effects of the budget cuts and its
current level of spending without lasting impacts on operations. DHS
proposes to adjust USCIS fees, add new fees for certain benefit
requests, establish distinct fees for petitions for nonimmigrant
workers, and limit the number of beneficiaries on certain forms. DHS is
also proposing additional fee exemptions for certain humanitarian
categories and changes to certain other immigration benefit request
requirements. If DHS does not adjust USCIS fees it will not have the
resources it needs to provide adequate service to applicants and
petitioners or be able to keep pace with incoming benefit request
workload, and USCIS processing times and backlogs will not improve. DHS
intends for this rulemaking to provide the funding required for USCIS
to improve service levels.

DATES: Written comments must be submitted on this proposed rule on or
before March 6, 2023. The electronic Federal Docket Management System
will accept comments before midnight eastern time at the end of that
day.
Listening session date: DHS will hold virtual public listening
sessions during which the public may speak directly to USCIS on the
questions raised in this proposed rule. A session will be held on
January 11, 2023 at 2:00 p.m. ET.
Listening sessions registration date: For an opportunity to provide
oral comments during the virtual public listening sessions, you must
register before the listening session in question. For registration
instructions, see the Public Participation section below.

ADDRESSES: You may submit comments on the entirety of this proposed
rule package, identified by DHS Docket No. USCIS-2021-0010, through the
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS. Please note that
DHS and USCIS cannot accept any comments that are hand delivered or
couriered. In addition, USCIS cannot accept comments contained on any
form of digital media storage devices, such as CDs/DVDs and USB drives.
Due to Coronavirus Disease (COVID-19), USCIS is also not accepting
mailed comments at this time. If you cannot submit your comment by
using https://www.regulations.gov, please contact Samantha Deshommes,
Chief, Regulatory Coordination Division, Office of Policy and Strategy,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, by telephone at (202) 658-9621 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: Carol Cribbs, Deputy Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746;
telephone 240-721-3000 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone numbers
above via TTY by calling the toll-free Federal Information Relay
Service at 877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
A. Summary of Economic Impacts
B. Summary of Proposed Provisions
C. Summary of Current and Proposed Fees
III. Basis for the Fee Review
A. Legal Authority and Guidance
B. Effect of FY 2022 Appropriations
C. Immigration Examinations Fee Account
D. Full Cost Recovery
E. The Use of Premium Processing Funds Under the Emergency
Stopgap USCIS Stabilization Act
F. Fee Review History
1. Current State of USCIS Fee Schedule Regulations
2. Previous Fee Rules
3. Current Fees
IV. Fee-Setting Approach--Reversal of 2020 Fee Rule
V. FY 2022/2023 Immigration Examinations Fee Account Fee Review
A. USCIS Projected Costs and Revenue
1. USCIS Budget History
2. FY 2022/2023 Cost Projections
a. General Expenses
b. Payroll
c. Related Rulemakings
d. Cost Summary
3. FY 2022/2023 Revenue Projections
4. Projected Cost and Revenue Differential
B. Methodology
1. Volume
a. Workload Volume and Volume Projection Committee
b. Fee-Paying Volume
2. Completion Rates
3. Assessing Proposed Fees
4. Funding the Asylum Program With Employer Petition Fees
C. Exclusion of Temporary or Uncertain Programs
D. Consideration of DACA Rulemaking
E. Fee-Related Issues for Consideration
1. Accommodating E-filing and Form Flexibility
2. Processing Time Outlook
VI. Fee Waivers
A. Background
B. The 2020 Fee Rule Fee Waiver Changes
C. Inability To Pay
D. USCIS Director's Discretionary Fee Waivers and Exemptions
E. Requirements To Submit Fee Waiver Form
F. Form and Policy Changes
G. Request for Comments
VII. Fee Exemptions
A. Codification of Benefit Requests With No Fees and Exemptions
of Certain Categories or Classifications From Fees
B. Proposed Fee Exemptions
1. Victims of Severe Form of Trafficking (T Nonimmigrants)
2. Victims of Qualifying Criminal Activity (U Nonimmigrants)
3. VAWA Form I-360 Self-Petitioners Derivatives
4. Conditional Permanent Residents Filing a Waiver of the Joint
Filing Requirement Based on Battery or Extreme Cruelty
5. Abused Spouses and Children Seeking Benefits Under CAA and
HRIFA
6. Abused Spouses and Children Seeking Benefits Under NACARA
7. Abused Spouses and Children of LPRs or U.S. Citizens Under
INA Sec. 240A(b)(2)
8. Special Immigrant Afghan or Iraqi Translators or
Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S.
Government, or Afghan Nationals Employed by or on Behalf of the U.S.
Government or Employed by the International Security Assistance
Force and Derivative Beneficiaries
9. Special Immigrant Juveniles
10. Temporary Protected Status
11. Asylees
12. Refugees
13. Person Who Served Honorably on Active Duty in the U.S. Armed
Forces Filing Under INA Sec. 101(A)(27)(K)

[[Page 403]]

14. Summary of Proposed Fee Exemptions
C. Request for Comments
VIII. Other Proposed Changes in the FY 2022/2023 Fee Schedule
A. Clarifying Dishonored Fee Check Re-Presentment Requirement
and Fee Payment Method
B. Payment Method
C. Non-Refundable Fees
D. Eliminating $30 Returned Check Fee
E. Changes to Biometric Services Fee
1. Incorporating Biometric Activities Into Immigration Benefit
Request Fees
2. Retaining the Separate Biometric Services Fee for Temporary
Protected Status
3. Executive Office for Immigration Review Biometric Services
Fee
F. Naturalization and Citizenship-Related Forms
1. Application for Naturalization (Form N-400) Fee
2. Request for Reduced Fee (Form I-942)
3. Military Naturalization and Certificates of Citizenship
4. Application for Certificate of Citizenship (Form N-600) and
Application for Citizenship and Issuance of Certificate Under
Section 322 (Form N-600K)
5. Proposed Changes to Other Naturalization-Related Application
Fees
6. Request for Comments
G. Fees for Online Filing
H. Form I-485, Application to Register Permanent Residence or
Adjust Status
1. Interim Benefits
2. Form I-485 Fee for Child Under 14, Filing With Parent
3. INA Sec. 245(i) Statutory Sum
I. Continuing To Hold Refugee Travel Document Fee for Asylees to
the Department of State Passport Fee
J. Form I-131A, Carrier Documentation
K. Separating Fees for Form I-129, Petition for a Nonimmigrant
Worker, by Nonimmigrant Classification
1. Form I-129, Petition for Nonimmigrant Worker: H-1
Classifications
2. Form I-129, Petitions for H-2A or H-2B Classifications
3. Form I-129, Petition for Nonimmigrant Worker: L
Classification
4. Form I-129, Petition for Nonimmigrant Worker: O
Classifications
5. Form I-129, Petition for Nonimmigrant Worker: E and TN
Classifications
6. Form I-129, Petition for Nonimmigrant Worker: H-3, P, Q, or R
Classifications
7. Separating Form I-129 Into Multiple Forms
8. Commonwealth of the Northern Mariana Islands Fees
9. H-1B Electronic Registration Fee
L. Premium Processing--Business Days
M. Permitting Combined Payment of the Premium Processing Fee
N. Intercountry Adoptions
1. Adjustment to Proposed Fees for Certain Intercountry
Adoption-Specific Forms
2. Clarification of Fee Exception for Birth Siblings
3. Suitability and Eligibility Approval Validity Period
4. Form I-600A/I-600, Supplement 3, Request for Action on
Approved Form I-600A/I-600
a. Suitability and Eligibility Extensions
b. New Approval Notices
c. Change of Country
d. Duplicate Approval Notices
e. Hague Adoption Convention Transition Cases
5. Form I-800A, Supplement 3, Request for Action on Approved
Form I-800A
O. Immigrant Investors
1. Immediate Effects of the EB-5 Reform and Integrity Act of
2022
2. Background of the EB-5 Program
3. Proposed EB-5 Program Fees
P. Genealogy and Records
1. Genealogy Search and Records Requests
2. Request for a Certificate of Non-Existence
Q. Fees Shared by CBP and USCIS
R. Form I-881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal (Pursuant to Section 203 of
Public Law 105-100 (NACARA))
S. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
T. Adjusting Fees for Inflation
U. Miscellaneous Technical and Procedural Changes
IX. Proposed Fee Adjustments to IEFA Immigration Benefits
A. Impact of Fees
B. USCIS Fiscal Health
C. Planned Increases in Efficiency
X. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. Paperwork Reduction Act
I. National Environmental Policy Act
J. Family Assessment

List of Acronyms and Abbreviations

AAPA Afghan Allies Protection Act of 2009
ABC Activity-Based Costing
ACWIA American Competitiveness and Workforce Improvement Act
AFM Adjudicator's Field Manual
APEC U.S. Asia-Pacific Economic Cooperation
ASC Application Support Center
ASVVP Administrative Site Visit and Verification Program
BLS Bureau of Labor Statistics
CAA Cuban Adjustment Act
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFO Chief Financial Officer
CFO Act Chief Financial Officers Act of 1990
CNMI Commonwealth of the Northern Mariana Islands
COVID Coronavirus Disease
CPI Consumer Price Index
CPI-U Consumer Price Index for All Urban Consumers
CPR Conditional Permanent Residents
CRA Congressional Review Act
DACA Deferred Action for Childhood Arrivals
DCL Dedicated Commuter Lane
DHS Department of Homeland Security
DoD Department of Defense
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
EAD Employment Authorization Document
EB-5 Employment-Based Immigrant Visa, Fifth Preference
EIN Employer Identification Number
E.O. Executive Order
EOIR Executive Office for Immigration Review
FBI Federal Bureau of Investigation
FDNS Fraud Detection and National Security Directorate
FOIA Freedom of Information Act
FPG Federal Poverty Guidelines
FY Fiscal Year
GAO U.S. Government Accountability Office
GE General Expenses
GPO Government Publishing Office
HHS U.S. Department of Health and Human Services
HRIFA Haitian Refugee Immigration Fairness Act
IEFA Immigration Examinations Fee Account
ILRC Immigrant Legal Resource Center v. Wolf
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IOAA Independent Offices Appropriations Act
IPO Immigrant Investor Program Office
IRFA Initial Regulatory Flexibility Analysis
IRIS Immigration Records and Identity Services
ISAF International Security Assistance Force
LPR Lawful Permanent Resident
NACARA Nicaraguan Adjustment and Central American Relief Act
NAFTA North American Free Trade Agreement
NAICS North American Industry Classification System
NATO North Atlantic Treaty Organization
NCE New Commercial Enterprise
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
NRC National Records Center
NWIRP Northwest Immigration Rights Project v. United States
Citizenship and Immigration Services
OAW Operation Allies Welcome
OIG DHS Office of Inspector General
OMB Office of Management and Budget
OP Operating Plan
OPQ Office of Performance and Quality
OPT Optional Practical Training
PRA Paperwork Reduction Act
PRC Permanent Resident Card
RAIO Refugee, Asylum, and International Operations Directorate
RAP Resource Allocation Plan
RFA Regulatory Flexibility Act
RFE Request for Evidence

[[Page 404]]

RIA Regulatory Impact Analysis
SAM Staffing Allocation Model
SAVE Systematic Alien Verification for Entitlements
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SCOPS Service Center Operations
SEA Small Entity Analysis
SEVP Student and Exchange Visitor Program
SIJ Special Immigrant Juvenile
SOFA Status of Forces Agreement
STEM OPT Science, Technology, Engineering, and Mathematics Optional
Practical Training
TEA Targeted Employment Area
TECRO Taipei Economic and Cultural Representative Office
TPS Temporary Protected Status
TVPRA William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UMRA Unfunded Mandates Reform Act
USCIS U.S. Citizenship and Immigration Services
USMCA U.S. Mexico-Canada Agreement
VAWA Violence Against Women Act
VPC Volume Projection Committee

I. Public Participation

DHS invites you 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-2021-0010 for this rulemaking. Providing comments
is entirely voluntary. Regardless of how you submit your comment, DHS
will post all submissions, without change, to the Federal eRulemaking
Portal at https://www.regulations.gov and will include any personal
information you provide. Because the information you submit will be
publicly available, you should consider limiting the amount of personal
information in your 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 https://www.regulations.gov.
Registration for listening session: To register and receive
information on how to attend the virtual public listening sessions,
please go to: https://www.uscis.gov/outreach/upcoming-national-engagements.
Docket: For access to the docket, go to https://www.regulations.gov
and enter this rulemaking's eDocket number: USCIS-2021-0010. The docket
includes additional documents that support the analysis contained in
this proposed rule to determine the specific fees that are proposed.
These documents include:
Fiscal Year (FY) 2022/2023 Immigration Examinations Fee
Account (IEFA) Fee Review Supporting Documentation (supporting
documentation);
FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule
documentation);
FY 2022/2023 IEFA Fee Review Model Documentation (model
documentation);
FY 2022/2023 Fee Review Regulatory Impact Analysis (RIA);
and
FY 2022/2023 Fee Review Small Entity Analysis (SEA).
You may review these documents on the electronic docket. The
software \1\ used to compute the immigration benefit request \2\ fees
and biometric fees \3\ is a commercial product licensed to USCIS that
may be accessed on-site, by appointment, by calling 240-721-6080.\4\
---------------------------------------------------------------------------

\1\ USCIS uses commercially available activity-based costing
(ABC) software, CostPerform, to create financial models as described
in the supporting documentation.
\2\ Benefit request means any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit, whether such request is filed on a paper
form or submitted in an electronic format, provided such request is
submitted in a manner prescribed by DHS for such purpose. See 8 CFR
1.2.
\3\ DHS uses the terms biometric fees, biometric services fees,
and biometric fee synonymously in this rule to describe the cost and
process for capturing, storing, or using biometrics.
\4\ This proposed rule describes key inputs to the ABC model
(for example, budget, workload forecasts, staffing, and completion
rates), both here and in the supporting documentation.
---------------------------------------------------------------------------

FAQ: To provide maximum transparency and clarity to the public on
this proposed rule, DHS has provided a list of frequently asked
questions and answers (FAQ) that summarize the content and context of
this rule in an easily readable and understandable summary fashion. We
have placed the FAQ in the eDocket USCIS-2021-0010, as well as on the
USCIS website at https://www.uscis.gov/proposed-fee-rule-faqs.

II. Executive Summary

DHS proposes to adjust the USCIS fee schedule, which specifies the
fee amount charged for each immigration and naturalization benefit
request.\5\ DHS last adjusted the fee schedule on December 23, 2016, by
a weighted average increase of 21 percent. See 81 FR 73292 (Oct. 24,
2016) (final rule) (FY 2016/2017 fee rule). USCIS budget and revenue
estimates at the time indicated there would be an average annual
deficit of $560 million without adjusting fees. DHS issued a final rule
to adjust the USCIS fee schedule on August 3, 2020, by a weighted
average of 20 percent, reflecting the results of the FY 2019/2020 USCIS
fee review. See 85 FR 46788 (2020 fee rule). DHS estimated an average
annual USCIS deficit of $1,035.9 million. The rule was scheduled to
become effective on October 2, 2020. However, that rule was
preliminarily enjoined, and USCIS has not implemented the fees set out
in the 2020 fee rule.\6\ In this rule, DHS proposes to replace the 2020
fee rule in its entirety by revising the regulatory changes codified by
the enjoined 2020 fee rule. Certain changes in the 2020 fee rule are
proposed to be retained by being republished.
---------------------------------------------------------------------------

\5\ For the purposes of this rulemaking, DHS is including all
requests funded from the IEFA in the term ``benefit request'' or
``immigration benefit request'' although the form or request may not
technically relate to an immigration or naturalization benefit. For
example, Deferred Action for Childhood Arrivals (DACA) is solely an
exercise of prosecutorial discretion by DHS, is not an immigration
benefit, and is called a ``benefit request'' solely for purposes of
this rule. Likewise, a request for genealogy records is not a
request for an immigration benefit. For historic receipts and
completion information, see USCIS immigration and citizenship data
available at https://www.uscis.gov/tools/reports-studies/immigration-forms-data.
\6\ Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D.
Cal. 2020) (ILRC); Nw. Immigrant Rights Project v. USCIS, 496 F.
Supp. 3d 31 (D.D.C. 2020) (NWIRP).
---------------------------------------------------------------------------

USCIS is primarily funded by fees charged to applicants and
petitioners for immigration and naturalization benefit requests. Fees
collected from individuals and entities filing immigration benefit
requests are deposited into the Immigration Examinations Fee Account
(IEFA). These fee collections fund the cost of fairly and efficiently
adjudicating immigration benefit requests, including those provided
without charge to refugee, asylum, and certain other applicants or
petitioners. The focus of this fee review is the fees that DHS has
established and is authorized by INA section 286(m), 8 U.S.C 1356(m),
to establish or change, collect, and deposit into the IEFA, which
comprised approximately 96 percent of USCIS' total FY 2021 enacted
spending authority; this fee review does not focus on fees that USCIS
is required to collect but cannot change. This rule also proposes to
revise the genealogy program fees established under INA section 286(t),
8 U.S.C. 1356(t), and those funds are also deposited into the IEFA.
Premium processing funds

[[Page 405]]

established under INA section 286(u), 8 U.S.C. 1356(u) are also IEFA
fees, but premium processing fees are not proposed to be changed in
this rule.
In accordance with the requirements and principles of the Chief
Financial Officers Act of 1990 (CFO Act), codified at 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.
Following such reviews, DHS proposes fee adjustments, if necessary, to
ensure that USCIS fees recover the full cost of operating USCIS as
authorized by INA section 286(m), 8 U.S.C. 1356(m). USCIS has completed
a fee review for the FY 2022/2023 biennial period. The primary
objective of any IEFA fee review is to determine whether current
immigration and naturalization benefit fees will generate sufficient
revenue to fund the anticipated operating costs associated with
administering the nation's legal immigration system. The results
indicate that current fee levels are insufficient to recover the full
cost of operations funded by the IEFA. Therefore, DHS proposes to
adjust USCIS fees.
In addition to the requirements of the CFO Act, there are other
important reasons for conducting the FY 2022/2023 fee review. The fee
review:
Allows for an assessment of USCIS policy changes, staffing
levels, costs, and revenue and other assessments. USCIS evaluates
operational requirements and makes informed decisions concerning
program scaling, resource planning, and staffing allocations; and
Provides those served by USCIS with an opportunity to
submit comments on the effect of fee changes.
USCIS calculates its fees to recover the full cost of operations
funded by the IEFA. These costs do not include limited appropriations
provided by Congress. If USCIS continues to operate at current fee
levels, it would experience an average annual shortfall (the amount by
which expenses exceed revenue) of $1,868.2 million. This projected
shortfall poses a risk of degrading USCIS operations funded by the
IEFA.
Although this fee schedule represents a 40-percent overall weighted
average increase to ensure full cost recovery, more than a million
immigration benefit requestors each year would see no increase or a
decrease in costs because their benefit requests have no fee, are fee
exempt, or are fee waived.\7\ In FY 2022/2023, USCIS estimates
approximately 8 million annual average receipts for workload with fees.
Of those, USCIS estimates approximately 7 million may pay fees. DHS
proposes to maintain the current fee waiver policy which was
established in 2011.\8\
---------------------------------------------------------------------------

\7\ USCIS uses a weighted average instead of a straight average
because of the difference in volume by immigration benefit type and
the resulting effect on fee revenue. The 40-percent weighted average
increase is a change in the average fee for a form that currently
requires a fee compared to the average proposed fee per form. The
sum of the current fees, multiplied by the projected FY 2022/2023
fee-paying receipts for each immigration benefit type, divided by
the total fee-paying receipts, is $518. The sum of the proposed
fees, multiplied by the projected FY 2022/2023 receipts for each
immigration benefit type, divided by the fee-paying receipts, is
$725. There is a $207, or approximately 40-percent, difference
between the two averages. These averages exclude fees that do not
receive cost reallocation, such as the separate biometric services
fee and the proposed genealogy fees.
\8\ See Policy Memorandum, Fee Waiver Guidelines as Established
by the Final Rule of the USCIS Fee Schedule; Revisions to
Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26,
available at https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf) (last viewed March 23, 2022).
---------------------------------------------------------------------------

The proposed fees would ensure that IEFA revenue covers USCIS'
costs associated with adjudicating immigration benefit requests. The
proposed fee schedule accounts for increased costs to adjudicate
immigration benefit requests, detect and deter immigration fraud, and
vet applicants, petitioners, and beneficiaries. See section V.A. of
this preamble for a discussion of IEFA budget history and cost
projections for this rulemaking. DHS also proposes to expand fee
exemptions for certain applicants and petitioners for humanitarian
benefits. Additionally, DHS proposes to establish distinct fees for
different categories of petitions for nonimmigrant workers. DHS
proposes to set a range of fees that vary by the nonimmigrant
classification and to limit petitions for nonimmigrant workers to 25
named beneficiaries. DHS believes the proposed fees more accurately
reflect the differing burdens of adjudication and will enable USCIS to
adjudicate these petitions more effectively.

A. Summary of Economic Impacts

The fee adjustments, as well as changes to the forms and fee
structures used by USCIS, would result in net costs, benefits, and
transfer payments. For the 10-year period of analysis of the rule (FY
2023 through FY 2032), DHS estimates the annualized net costs to the
public would be $532,379,138 discounted at 3- and 7-percent. Estimated
total net costs over 10 years would be $4,541,302,033, discounted at 3-
percent and $3,739,208,286 discounted at 7-percent.
The proposed changes in this rule would also provide several
benefits to DHS and applicants/petitioners seeking immigration
benefits. For the Government, the primary benefits include reduced
administrative burdens and fee processing errors, increased efficiency
in the adjudicative process, and the ability to better assess the cost
of providing services, which allows for better aligned fees in future
regulations. The primary benefits to the applicants/petitioners include
the simplification of the fee payment process for some forms,
elimination of the $30 returned check fee, USCIS' expansion of the
electronic filing system to include more forms, and for many
applicants, limited fee increases and additional fee exemptions to
reduce fee burdens.
Fee increases and other changes in this proposed rule would result
in annualized transfer payments from applicants/petitioners to USCIS of
approximately $1,612,133,742 discounted at both 3-percent and 7-
percent. The total 10-year transfer payments from applicants/
petitioners to USCIS would be $13,751,827,819 at a 3-percent discount
rate and $11,322,952,792 at a 7-percent discount rate.
Fee reductions and exemptions in this proposed rule would result in
annualized transfer payments from USCIS to applicants/petitioners of
approximately $116,372,429 discounted at both 3-percent and 7-percent.
The total 10-year transfer payments from USCIS to applicants/
petitioners would be $992,680,424 at a 3-percent discount rate and
$817,351,244 at a 7-percent discount rate.
The annualized transfer payments from the Department of Defense
(DoD) to USCIS would be approximately $222,145 at both 3- and 7-percent
discount rates. The total 10-year transfer payments from DoD to USCIS
would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-
percent discount rate.

B. Summary of Proposed Provisions

This proposed rule includes the following proposals:
Adjusting fees according to the schedule in Tables 1 and
26.
Adding new fee exemptions for certain humanitarian
programs and preserving the fee waiver requirements that are currently
being followed.
Removing fee exemptions that are based only on the age of
the person submitting the request.

[[Page 406]]

Eliminating the $30 returned check fee.
Incorporating biometrics costs into the main benefit fee
and removing the separate biometric services fee.
Requiring separate filing fees for Form I-485 and
associated Form I-131 and Form I-765 filings.
Establishing separate fees for Form I-129, Petition for
Nonimmigrant Worker, by nonimmigrant classification.
Revising the premium processing timeframe interpretation
from calendar days to business days.
Revising adoption-related requirements, including adding a
Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600,
Supplement 3), and associated fees.
Revising regulations related to genealogy searches,
including establishing a fee for Form G-1566, Request for Certificate
of Non-Existence.
Miscellaneous technical and procedural changes.
Creating lower fees for forms filed online.

C. Summary of Current and Proposed Fees

Table 1 summarizes the current and proposed fees. In addition, the
proposed fees and exemptions are incorporated into the draft version of
USCIS Form G-1055 as part of the docket for this rulemaking. In some
cases, the current or proposed fee may be the sum of several fees. For
example, several immigration benefit requests require an additional
biometric services fee under the current fee structure. The table
includes rows with and without the additional biometric services fee
added to the Current Fee(s) column. The Current Fee(s) column
represents the current fees in effect rather than the enjoined fees
from the 2020 fee rule.\9\ Throughout this proposed rule, the phrase
``current fees'' refers to the fees in effect and not the enjoined
fees. In this proposal, DHS would eliminate the additional biometric
services fee in most cases by including the costs in the underlying
immigration benefit request fee. As such, the Proposed Fees(s) column
does not include an additional biometric services fee. Some other
benefit requests are listed several times because in some cases DHS
proposes distinct fees based on filing methods, online or paper. DHS
proposes to require fees for Forms I-131 and I-765 when filed with Form
I-485. As such, Table 1 includes rows that compare the current fee for
Form I-485 to various combinations of the proposed fees for Forms I-
485, I-131, and I-765. We grouped the fees into different categories,
such as Citizenship and Nationality, Humanitarian, Family-Based,
Employment-Based, and Other. We included immigration benefit requests
without fees in a No Fees category. DHS proposes to codify these no fee
immigration benefit requests. See, e.g., proposed 8 CFR 106.2(a)(58)
through (60).
---------------------------------------------------------------------------

\9\ USCIS provides filing fee information on the All Forms page
at https://www.uscis.gov/forms/all-forms. You can use the Fee
Calculator to determine the exact filing and biometric services fees
for any form processed at a USCIS Lockbox facility. See USCIS, Fee
Calculator, https://www.uscis.gov/feecalculator. For a complete list
of all USCIS fees, see Form G-1055, Fee Schedule, available from
https://www.uscis.gov/g-1055.
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 407]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.000

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

\10\ These are fees that USCIS is currently charging and not
those codified by the 2020 fee rule.

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

[[Page 408]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.001

[[Page 409]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.002

[[Page 410]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.003

[[Page 411]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.004

[[Page 412]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.005

[[Page 413]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.006

[[Page 414]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.007

[[Page 415]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.008

BILLING CODE 9111-97-C

III. Basis for the Fee Review

A. Legal Authority and Guidance

DHS is issuing this proposed rule consistent with INA sec. 286(m),
8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and
naturalization services at a level to ``ensure recovery of the full
costs of providing all such services, including the costs of similar
services provided without charge to asylum applicants or other
immigrants''),\11\ and the CFO Act, 31 U.S.C. 901-03 (requiring each
agency's Chief Financial Officer (CFO) to review, on a biennial basis,
the fees imposed by the agency for services it provides, and to
recommend changes to the agency's fees).
---------------------------------------------------------------------------

\11\ The longstanding interpretation of DHS is that the
``including'' clause in section 286(m) does not constrain DHS's fee
authority under the statute. The ``including'' clause offers only a
non-exhaustive list of some of the costs that DHS may consider part
of the full costs of providing adjudication and naturalization
services. See 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23,
2019); 81 FR 26903, 26906 n.10 (May 4, 2016).
---------------------------------------------------------------------------

This proposed rule is also consistent with non-statutory guidance
on fees, the budget process, and Federal accounting principles.\12\ DHS
uses OMB Circular A-25 as general policy guidance for determining user
fees for immigration benefit requests, with exceptions as outlined in
section III.B of this preamble. DHS also follows the annual guidance in
OMB Circular A-11 if it requests appropriations to offset a portion of
Immigration Examinations Fee Account (IEFA) costs.\13\
---------------------------------------------------------------------------

\12\ See OMB Circular A-25, ``User Charges,'' 58 FR 38142,
available at https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf (July 15, 1993) (revising Federal policy guidance
regarding fees assessed by Federal agencies for Government
services). See also Federal Accounting Standards Advisory Board
Handbook, Version 17 (06/18), Statement of Federal Financial
Accounting Standards 4: Managerial Cost Accounting Standards and
Concepts, SFFAS 4, available at https://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally describing cost accounting concepts
and standards, and defining ``full cost'' to mean the sum of direct
and indirect costs that contribute to the output, including the
costs of supporting services provided by other segments and
entities.); id. at 49-66 (July 31, 1995). See also OMB Circular A-
11, Preparation, Submission, and Execution of the Budget, section
20.7(d), (g) (June 29, 2018), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf (June 29,
2018). (providing guidance on the FY 2020 budget and instructions on
budget execution, offsetting collections, and user fees).
\13\ OMB Circulars A-25 and A-11 provide nonbinding internal
executive branch direction for the development of fee schedules
under the Independent Offices Appropriations Act, 1952 (IOAA) and
appropriations requests, respectively. See 5 CFR 1310.1. Although
DHS is not required to strictly adhere to these OMB circulars in
setting USCIS fees, DHS understands they reflect best practices and
used the activity-based costing (ABC) methodology supported in
Circulars A-25 and A-11 to develop the proposed fee schedule.
---------------------------------------------------------------------------

Finally, this rulemaking accounts for, and is consistent with,
congressional appropriations for specific USCIS programs. FY 2021
appropriations for USCIS provided funding for the E-Verify employment
eligibility verification program. Congress provided E-Verify with
$117.8 million for operations and support. See Consolidated
Appropriations Act, 2021, Pub. L. 116-260, div. F, tit. IV (Dec. 27,
2020). DHS provides this information only for comparison to the IEFA.
E-Verify is not included in this fee review budget because, generally,
appropriations, not fees, fund E-Verify. In addition, Congress
appropriated $10 million for the Citizenship and Integration Grant
Program. Id. Together, the total FY 2021 appropriations for USCIS are
$127.8 million. For the last several years, USCIS has not had the
authority to spend more than $10 million for citizenship grants. Until
recently, grant program funding came from the IEFA fee revenue or a mix
of appropriations and fee revenue.\14\ Because Congress appropriated
funds for grants in FY 2021, the $10 million budgeted for citizenship
grants is not part of the FY 2022/2023 IEFA fee review budget.
---------------------------------------------------------------------------

\14\ USCIS received $2.5 million for the immigrant integration
grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113-
76). USCIS did not receive appropriations for the immigrant
integration grants program in FY 2015, FY 2016, FY 2017, and FY
2018. Congress provided $10 million for citizenship and integration
grants in FY 2019 (Pub. L. 116-6) and FY 2020 (Pub. L. 116-93).
---------------------------------------------------------------------------

B. Effect of FY 2022 Appropriations

In FY 2022, Congress provided USCIS additional appropriations for
very specific purposes. See Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) (``Pub. L. 117-103''). USCIS
received approximately $389.5 million for E-Verify, application
processing, backlog reduction, and the refugee program. See id at div.
F, title IV. Of that amount, approximately $87.6

[[Page 416]]

million is available until the end of FY 2023. Id. These funds will be
in a separate appropriated account. Id. USCIS will use $275 million to
reduce USCIS application and petition backlogs and delays, support
refugee admissions up to a ceiling of 125,000, and invest in enterprise
infrastructure improvements such as case file management and video
interviewing capabilities.\15\ USCIS will use the remaining amount,
approximately $114.5 million, to fund E-Verify. In addition, Congress
provided $20 million for Federal Assistance for the Immigrant
Citizenship and Integration Grants program. Id. This is $10 million
more than in a typical year.\16\ USCIS also received $193 million for
Operation Allies Welcome (OAW). See Extending Government Funding and
Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 30,
2021) (``Pub. L. 117-43'') at div. C. title V, sec. 2501. In FY 2022,
approximately $119.7 million is available for use in the Immigration
Examinations Fee Account, which is a no-year account. The remaining OAW
amount will be available in FY 2023 or until expended. In all of these
cases, the laws provide that the funds are only to be used for the
specified purposes, and DHS is not required to reduce any current IEFA
fee.\17\
---------------------------------------------------------------------------

\15\ This $275 million includes $250 million that USCIS received
in an earlier continuing resolution. See Extending Government
Funding and Delivering Emergency Assistance Act, 2022, Public Law
117-43 (Sept. 30, 2021) at div. A, sec. 132. USCIS received an
additional $25 million in the Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) at div. F, title IV.
\16\ For example, Congress appropriated $10 million in FY 2021.
See section III.A of this preamble for more information.
\17\ Public Law 117-43, at section 132, states, ``That such
amounts shall be in addition to any other funds made available for
such purposes, and shall not be construed to require any reduction
of any fee described in section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)):'' Likewise, Public Law 117-43,
at section 2501, states ``That such amounts shall be in addition to
any other amounts made available for such purposes and shall not be
construed to require any reduction of any fee described in section
286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).''
USCIS has a long history of funding citizenship and integration
grants from IEFA revenue, appropriations, or a mix of both.
---------------------------------------------------------------------------

The FY 2022/2023 fee review budget that is the basis for this
proposed rule excludes all appropriated funding, including the
approximately $529.2 million provided so far in FY 2022. USCIS will use
the appropriated funding for the purposes provided by Congress. The
appropriations support several DHS priorities, for example, decreasing
USCIS application processing times, reducing the backlog of requests
already on hand and being adjudicated (and for which a fee may have
already been paid). USCIS may also use the appropriations to expand
refugee processing efforts, and support vulnerable Afghans, including
those who worked alongside Americans in Afghanistan for the past two
decades, as they safely resettle in the United States. These
appropriations do not overlap with the fee review budget, which will
fund immigration adjudication and naturalization services for future
incoming receipts. The full costs of operating USCIS that are included
in the fee model do not include separate line items budgeted directly
for backlog reduction and OAW. Had the appropriation not been received,
DHS and USCIS would have been required to use funds budgeted for other
uses to fund the costs of OAW. While DHS and USCIS are very focused on
reducing backlogs, our efforts to reduce the backlog did not include a
significant shift of IEFA non-premium funds from normal operations to
that effort. USCIS funded previous backlog reduction efforts with IEFA
premium processing revenue and supplemental appropriations.\18\ The
backlog represents uncompleted work which USCIS already received, but
did not complete, and the appropriated funds will assist in clearing
that workload. In the absence of appropriations, USCIS may continue to
fund backlog reduction efforts with premium processing revenue.
---------------------------------------------------------------------------

\18\ The last time USCIS received appropriations for the backlog
was in FY 2008. See Consolidated Appropriations Act, 2008, Public
Law 110-161, Title IV (Dec. 26, 2007). USCIS received $20 million
``to address backlogs of security checks associated with pending
applications and petitions.'' More recently, Congress authorized
USCIS to use premium processing revenue to address the backlog. See
Emergency Stopgap USCIS Stabilization Act, Public Law 116-159, Div.
D, Title IV (Oct. 1, 2020).
---------------------------------------------------------------------------

DHS received appropriations to fund some of the additional spending
that USCIS will require for the refugee ceiling increase to 125,000
beginning in FY 2022, as described in section V.A.2.b.\19\ This is a
significant increase over recent years. The refugee admission ceiling
was 62,500 for FY 2021 and 18,000 for FY 2020.\20\ DHS is including
this amount in its total costs to be recovered by the fees proposed in
this rule because the appropriations in Public Law 117-103 will be used
to cover the FY 2022 expenses for the refugee program, while this rule
is unlikely to be effective until FY 2023. The approximately $87.6
million appropriated for application processing that is available until
the end of FY 2023 may be insufficient to fund backlog reduction and
refugee processing. For example, the President's budget request for FY
2023 included $765 million for increasing asylum caseloads, backlog
reduction, and refugee processing.\21\ While USCIS is committed to
seeking Congressional appropriations for refugee processing costs in
the future, USCIS cannot presume such appropriations, especially given
the lack of appropriations in the past. If this fee rule does not
account for the possibility of no Congressional funding in future years
and Congress fails to fund the program, either the program cannot
continue or USCIS will be forced to reallocate resources assigned to
another part of the agency for this purpose. However, if USCIS is
certain to receive additional appropriations to fund the FY 2023
refugee program at the time of the final rule, then USCIS may reduce
the estimated budget requirements funded by IEFA fees accordingly in
the final rule.
---------------------------------------------------------------------------

\19\ See White House, ``Memorandum for the Secretary of State on
Presidential Determination on Refugee Admissions for Fiscal Year
2022'' (Oct. 8, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/08/memorandum-for-the-secretary-of-state-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2022/.
\20\ See White House, ``Memorandum for the Secretary of State on
the Emergency Presidential Determination on Refugee Admissions for
Fiscal Year 2021'' (May 3, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/05/03/memorandum-for-the-secretary-of-state-on-the-emergency-presidential-determination-on-refugee-admissions-for-fiscal-year-2021-2/; see also Trump White
House, ``Presidential Determination on Refugee Admissions for Fiscal
Year 2020'' (Nov. 1, 2019), https://trumpwhitehouse.archives.gov/presidential-actions/presidential-determination-refugee-admissions-fiscal-year-2020/.
\21\ See White House, Budget of the United States, Fiscal Year
2023, p. 20, https://www.whitehouse.gov/wp-content/uploads/2022/03/budget_fy2023.pdf (last visited April 20, 2022).
---------------------------------------------------------------------------

The FY 2022 appropriation laws also require additional services and
impose reporting, processing, and monitoring requirements that will add
costs for USCIS. See, e.g., Public Law 117-43 at secs. 2502-2503. The
reporting requirements of Public Law 117-43 are quarterly and extend
through September 30, 2023, although the amounts appropriated are only
available for fiscal year 2022. Id at secs. 2503(a) and 2506. DHS will
fund these reporting costs with the appropriated funds for FY 2022 and
thus has excluded most of them from this rule. Id. at secs. 2502-2503.
Congress also added reporting requirements when it reauthorized and
revised the Employment-Based Immigrant Visa, Fifth Preference (EB-5)
authority. See Public Law 117-103, div. BB and section III.F of this
preamble for more information. IEFA fees will fund

[[Page 417]]

operational expenses as needed in FY 2022/2023, including the reporting
requirements imposed by Public Law 117-43 and Public Law 117-103 that
are not funded by appropriated funds. DHS describes the FY 2022/2023
fee review budget in section V.A. of this preamble.

C. Immigration Examinations Fee Account

USCIS manages three fee accounts:
The IEFA (includes premium processing revenues),\22\
---------------------------------------------------------------------------

\22\ INA sec. 286(m), (n), and (u); 8 U.S.C. 1356(m), (n), and
(u).
---------------------------------------------------------------------------

The Fraud Prevention and Detection Account,\23\ and
---------------------------------------------------------------------------

\23\ INA secs. 214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12)
and (13), 1356(v).
---------------------------------------------------------------------------

The H-1B Nonimmigrant Petitioner Account.\24\
---------------------------------------------------------------------------

\24\ INA secs. 214(c)(9) and (11), 286(s); 8 U.S.C. 1184(c)(9)
and (11), 1356(s).
---------------------------------------------------------------------------

In 1988, Congress established the IEFA in the Treasury of the
United States. See Public Law 100-459, sec. 209, 102 Stat. 2186 (Oct.
1, 1988) (codified as amended at INA sec. 286(m) and (n), 8 U.S.C.
1356(m) and (n)). Fees deposited into the IEFA fund the provision of
immigration adjudication and naturalization services. In subsequent
legislation, Congress directed that the IEFA fund the full costs of
providing all such services, including services provided to immigrants
at no charge. See Public Law 101-515, sec. 210(d)(1) and (2), 104 Stat.
2101, 2121 (Nov. 5, 1990). Consequently, the immigration benefit fees
were increased to recover these additional costs. See 59 FR 30520 (June
14, 1994). The IEFA accounted for approximately 96 percent of total
funding for USCIS in FY 2021 and is the focus of this proposed rule.
IEFA non-premium funding represents 83 percent and IEFA premium funding
represents 13 percent of USCIS FY 2021 total funding. The remaining
USCIS funding comes from appropriations (approximately 3 percent) or
other fee accounts (approximately 1 percent) in FY 2021. The Fraud
Prevention and Detection Account and H-1B Nonimmigrant Petitioner
Account are both funded by fees for which the dollar amount is set by
statute.\25\ DHS has no authority to adjust the fees for these
accounts.
---------------------------------------------------------------------------

\25\ See the supporting documentation included in the docket of
this rulemaking. There is additional information on these accounts
in Appendix II--USCIS Funding and Account Structure.
---------------------------------------------------------------------------

D. Full Cost Recovery

USCIS receives millions of requests each year for immigration
benefits. These benefits are funded by DHS, generally, by charging fees
for USCIS services. In recent years, however, and as fully explained in
this rule preamble and its supporting documents, USCIS costs have
surpassed the fees it collects.
As stated earlier, DHS publishes this proposed rule under the
Immigration and Nationality Act (``INA''), which establishes the
``Immigration Examinations Fee Account'' (``IEFA'') for the receipt of
fees it charges. INA section 286(m), 8 U.S.C. 1356(m). The INA allows
DHS to set ``fees for providing adjudication and naturalization
services . . . at a level that will ensure recovery of the full costs
of providing all such services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.'' Id.
The INA further provides that ``[s]uch fees may also be set at a level
that will recover any additional costs associated with the
administration of the fees collected.'' Id.
DHS proposes this rule to address the projected deficits and
unsustainable fiscal situation of USCIS that are explained in this
proposal and in the supporting documentation in the docket. See section
IX.A of this preamble; see also IEFA Non-Premium Carryover Projections
in the supporting documentation included in the docket to this
rulemaking. Carryover is unobligated or unexpended fee revenue
accumulated from previous fiscal years. Because USCIS is primarily fee-
funded, it must ensure that it maintains a carryover balance to
continue operating, and INA section 286(m), 8 U.S.C. 1356(m) authorizes
DHS to set fees at a level to recover ``the full costs'' of providing
``all'' ``adjudication and naturalization services,'' and ``the
administration of the fees collected.'' (emphasis added.) This
necessarily includes support costs such as physical overhead,
information technology, management and oversight, human resources,
national security vetting and investigations,\26\ accounting and
budgeting, and legal, for example. USCIS' current budget forecasts a
deficit based on fully funding all of its operations, and DHS must make
up that difference either by cutting costs, curtailing operations, or
increasing revenue. DHS has examined USCIS recent budget history,
service levels, and immigration trends to forecast its costs, revenue,
and operational metrics in order to determine whether USCIS fees would
generate sufficient revenue to fund anticipated operating costs. As
explained in this rule and the supporting documents, USCIS costs are
projected to be considerably higher than projected fee revenue should
fees remain at their current levels. The primary cost driver
responsible for this increase is payroll, including the need to hire
additional staff due to an increase in the volume of applications that
USCIS receives and the increase in time per adjudication for USCIS to
process many applications, petitions, and requests. See section V.B.
for a discussion of USCIS workload and the time to adjudicate
applications, petitions, and requests. See also section IX.C for
planned increases in efficiency. USCIS has already curtailed its own
costs and implemented cost-cutting measures, and any further reductions
would adversely affect the services USCIS provides to applicants
including adjudications time and processes. See section V.A.2. and
section IX.B. of this preamble.
---------------------------------------------------------------------------

\26\ Congress recommended that DHS establish an organization
``responsible for developing, implementing, directing, and
overseeing the joint USCIS-Immigration and Customs Enforcement (ICE)
anti-fraud initiative and conducting law enforcement/background
checks on every applicant, beneficiary, and petitioner prior to
granting immigration benefits.'' See, Conference Report to accompany
H.R. 4567 [Report 108-774], ``Making Appropriations for the
Department of Homeland Security for the Fiscal Year Ending September
30, 2005,'' p. 74, available at https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf.
---------------------------------------------------------------------------

Consistent with these authorities, sources, and needs, this
proposed rule would ensure that USCIS recovers its full operating costs
and maintains an adequate level of service in two ways:
First, where possible, the proposed rule would set fees at levels
sufficient to cover the full cost of the corresponding services
associated with fairly and efficiently adjudicating immigration benefit
requests.
DHS generally follows OMB Circular A-25, which ``establishes
federal policy regarding fees assessed for Government services and for
sale or use of Government goods or resources.'' OMB Circular A-25,
section 1, 58 FR 38144. A primary objective of OMB Circular A-25 is to
ensure that Federal agencies recover the full cost of providing
specific services to users and associated costs. See id., section 5.
Full costs include, but are not limited to, an appropriate share of:
Direct and indirect personnel costs, including salaries
and fringe benefits such as medical insurance and retirement;
Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel, and
rents or imputed rents on land, buildings, and equipment;
Management and supervisory costs; and

[[Page 418]]

Costs of enforcement, collection, research, establishment
of standards, and regulation.
Id., section 6, 58 FR 38145. Second, this proposed rule would set
fees at a level sufficient to fund overall requirements and general
operations related to USCIS IEFA programs. The current and proposed
IEFA fees fund programs that are not associated with specific statutory
fees or funded by annual appropriations. The proposed fees would also
recover the difference between the full cost of adjudicating benefit
requests and the revenue generated when such requests are fee exempt,
in whole or in part, when the fees for such requests are set at a level
below full cost by statute or policy, and when fees are waived,
consistent with past fee calculation methodology. As noted, Congress
provided that USCIS may set fees for providing adjudication and
naturalization services at a level that will ensure recovery of the
full costs of providing all such services, including the costs of
similar services provided without charge to asylum applicants or other
immigrants. See INA sec. 286(m), 8 U.S.C. 1356(m).\27\ DHS has long
interpreted this statutory fee-setting authority, including the
authorization to collect ``full costs'' for providing ``adjudication
and naturalization services,'' as granting DHS broad discretion to
include costs other than OMB Circular A-25 generally provides. See OMB
Circular A-25, section 6d(1); INA sec. 286(m), 8 U.S.C. 1356(m). See,
e.g., 66 FR 65811 at 65813 (Dec. 21, 2001) (responding to commenters
opposed to the use of IEFA fees to pay expenses for unrelated services
by stating that those costs must be recovered from the fees charged to
other applicants for immigration and naturalization benefits.). In
short, DHS may charge fees at a level that will ensure recovery of all
direct and indirect costs associated with providing immigration
adjudication and naturalization services.\28\
---------------------------------------------------------------------------

\27\ Congress has provided separate, but similar, authority for
establishing USCIS genealogy program fees. See INA sec. 286(t), 8
U.S.C. 1356(t). The statute requires that genealogy program fees be
deposited into the IEFA and that the fees for such research and
information services may be set at a level that will ensure the
recovery of the full costs of providing all such services. Id. The
methodology for calculating the genealogy program fees is discussed
in a separate section later in this preamble.
\28\ Congress has not defined either term with any degree of
specificity for purposes of paragraphs (m) and (n). See, e.g.,
Barahona v. Napolitano, No. 10-1574, 2011 WL 4840716, at **6-8
(S.D.N.Y. Oct. 11, 2011) (``While the term `full costs' appears
self-explanatory, section 286(m) contains both silence and ambiguity
concerning the precise scope that `full costs' entails in this
context.'').
---------------------------------------------------------------------------

Consistent with the historical position and practice of DHS, this
proposed rule would set fees at a level that ensures recovery of the
full operating costs of USCIS, the component within DHS that provides
almost all immigration adjudication and naturalization services. See
Homeland Security Act of 2002, Public Law 107-296, sec. 451, 116 Stat.
2142 (Nov. 26, 2002) (6 U.S.C. 271). Congress has historically relied
on the IEFA to support the vast majority of USCIS programs and
operations conducted as part of adjudication and naturalization service
delivery. This conclusion is supported by Congress' limited historical
appropriations to USCIS. The agency typically receives only a small
annual appropriation for specific uses. USCIS must use fee revenues, as
a matter of both discretion and necessity, to fund all operations
associated with activities that USCIS is charged by law to administer
that are not funded by other means.
Certain functions, including the Systematic Alien Verification for
Entitlements (SAVE) program \29\ and the Office of Citizenship,\30\
which USCIS has administered since DHS's inception, are integral parts
of fulfilling USCIS' statutory responsibility to provide immigration
adjudication and naturalization services. They are not associated with
specific fees, but they may be, and are, funded by the IEFA. Similarly,
when a filing fee for an immigration benefit request, such as Temporary
Protected Status (TPS), is capped by statute and does not cover the
cost of adjudicating these benefit requests, DHS may recover the
difference with fees charged to other immigration benefit requests. See
INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) (capping TPS
registration fee at $50); 8 CFR 103.7(b)(1)(i)(NN); proposed 8 CFR
106.2(a)(48)(i). Also, when DHS exempts certain benefit requests from
filing fees, such as applications or petitions from qualifying victims
who assist law enforcement in the investigation or prosecution of human
trafficking (T nonimmigrant status) or certain other crimes (U
nonimmigrant status), USCIS recovers the cost of providing those fee-
exempt or no-fee services through fees charged to other applicants and
petitioners. See, e.g., 8 CFR 103.7(b)(1)(i)(UU) and (VV) (Oct. 1,
2020); proposed 8 CFR 106.2(a)(59) and (60).
---------------------------------------------------------------------------

\29\ USCIS funds the SAVE program by user fees and IEFA funds,
as Congress has not provided any direct appropriated funds for the
program since FY 2007. SAVE provides an ``immigration adjudication .
. . service'' under INA sec. 286(m) and (n) to Federal, state, and
local agencies that require immigration adjudication information in
administering their benefits.
\30\ The Homeland Security Act created the Office of Citizenship
at the same time as several other mission-essential USCIS offices,
such as those for legal, budget, and policy. Like those offices, the
Office of Citizenship has always been considered an essential part
of the ``adjudication and naturalization services'' USCIS provides
under section 286(m) and (n) of the INA. As Congress recognized in
creating the Office of Citizenship in section 451(f) of the Homeland
Security Act (6 U.S.C. 271(f)), providing information to potential
applicants for naturalization regarding the process of
naturalization and related activities. is an integral part of
providing ``such services''
---------------------------------------------------------------------------

OMB guidance gives agencies discretion to interpret when additional
statutory requirements apply to user fees. See Circular A-25, section
4, 58 FR 38144. In that regard, in INA sec. 286(m), 8 U.S.C. 1356(m),
Congress imposed on DHS an additional obligation--to recover the full
cost of USCIS operations--over and above the advice in OMB Circular A-
25 concerning the direct correlation or connection between costs and
fees. Nevertheless, DHS follows OMB Circular A-25 to the extent
possible while complying with Congress's directive, including directing
that fees should be set to recover the costs of an agency's services in
their entirety and that full costs are determined based upon the best
available records of the agency. See OMB Circular A-25, section 6d(1).
DHS applies the discretion provided in INA sec. 286(m), 8 U.S.C.
1356(m), to: (1) use activity-based costing (ABC) to establish a model
for assigning costs to specific benefit requests in a manner reasonably
consistent with OMB Circular A-25; (2) allocate costs for programs for
which a fee is not charged or a law limits the fee amount, (3)
distribute costs that are not attributed to, or driven by, specific
adjudication and naturalization services; and (4) make additional
adjustments to effectuate specific policy objectives.\31\
---------------------------------------------------------------------------

\31\ DHS may reasonably adjust fees based on value judgments and
public policy reasons consistent with its statutory authority and
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).
---------------------------------------------------------------------------

The ABC model distributes indirect costs. Indirect costs are not
specifically identifiable with one output because they may contribute
to several outputs. The ABC model uses a cause-and-effect relationship
to distribute most indirect costs. See the supporting documentation
included in this docket for information on direct and 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

[[Page 419]]

model in a spreadsheet. The fee schedule spreadsheet adjusts the model
results to effectuate a desired result such as a lower fee to encourage
or not discourage the filing of a specific benefit request. For
example, the model determines the direct and indirect costs for refugee
workload. The costs associated with processing workload without fees or
where fees do not recover full cost must be reallocated outside the ABC
model. USCIS reallocates these costs to fee-paying immigration benefit
requests, either among the same request, among all fee-paying requests
or among certain unrelated fee-paying requests. For example, the costs
of Form I-485 filings that are fee-waived are shifted to the Form I-485
filings that pay the fee. All immigration benefit request fees that
recover their full cost also recover the cost of workloads without
fees, such as refugee workload. In this proposal, USCIS is allocating
more asylum costs to Forms I-129 and I-140 than the forms would receive
without additional intervention. The supporting documentation in the
docket contains an in-depth explanation of the ABC model and DHS has
included documentation for the fee schedule spreadsheet in the docket
for public review. USCIS acknowledges that its ABC model and fee
schedule are complex, but both are necessary to allocate the costs of
an agency with the size and breadth of purpose as USCIS. DHS invites
the public to request a demonstration of how the fee calculations are
affected by the direct and indirect cost allocation, shifting costs
from free immigration benefits to others, and capping certain fees at
decided-upon levels.
Typically, Congressional appropriations and two other small fee
accounts represent between 2-5 percent (combined) of USCIS' annual
budget.\32\ Each has statutory limits for both amounts and uses.
Appropriations are typically limited to use for E-Verify employment
status verification and the Citizenship and Integration grant program.
Congress authorizes or requires USCIS to carry out seemingly non-
adjudicatory functions and approves the DHS budget, knowing that USCIS
must use IEFA funds to cover those expenses which Congress does not
otherwise fund through appropriations and statutory fees. Therefore, by
approving the use of the IEFA every year to fund seemingly non-
adjudicatory functions, Congress acknowledges our construction.
---------------------------------------------------------------------------

\32\ This does not include the appropriations received for FY
2022 as discussed in detail earlier in this preamble.
---------------------------------------------------------------------------

E. The Use of Premium Processing Funds Under the Emergency Stopgap
USCIS Stabilization Act

On October 1, 2020, the Continuing Appropriations Act, 2021 and
Other Extensions Act (Continuing Appropriations Act) was signed into
law. Public Law 116-159 (Oct. 1, 2020). The Continuing Appropriations
Act included the Emergency Stopgap USCIS Stabilization Act (USCIS
Stabilization Act), which allows USCIS to establish and collect
additional premium processing fees and to use premium processing funds
for expanded purposes. See Public Law 116-159, secs. 4101 and 4102, 134
Stat. 739 (Oct. 1, 2020); 8 U.S.C. 1356(u). That statute is expected to
result in continued increases to USCIS premium processing revenue.
USCIS can now use premium processing revenue, if necessary, to provide
the infrastructure needed to carry out a broader range of activities
than previously authorized. Importantly for the purposes of this
proposed rule, the USCIS Stabilization Act permits USCIS to make
infrastructure improvements in adjudication processes and the provision
of information and services to immigration and naturalization benefit
requestors. 8 U.S.C. 1356(u)(4). The USCIS Stabilization Act also
establishes higher fees for existing premium processing services and
permits USCIS to expand premium processing to certain additional
benefits. 8 U.S.C. 1356(u)(2) and (3). It also exempts the agency from
the requirements of the Administrative Procedure Act (5 U.S.C. 553)
when instituting section 4102(b)(1) of the USCIS Stabilization Act. In
addition, it provides that the required processing timeframe for the
newly designated benefits will not commence until all prerequisites for
adjudication are received, which would include biometrics and
background check results. See section 4102(b)(2) of the USCIS
Stabilization Act.
On March 30, 2022, DHS published a final rule, ``Implementation of
the Emergency Stopgap USCIS Stabilization Act,'' implementing part of
the authority provided under the USCIS Stabilization Act to offer
premium processing for those benefit requests made eligible for premium
processing by section 4102(b) of that law. See 87 FR 18227 (premium
processing rule). The USCIS Stabilization Act requires that when DHS
implements the expansion of immigration benefit types that are
designated for premium processing, it must not result in an increase in
processing times for immigration benefit requests not designated for
premium processing or an increase in regular processing of immigration
benefit requests so designated.\33\ For this reason, DHS did not make
premium processing immediately available for all immigration benefit
requests newly designated in the premium processing rule. Id. Rather,
premium processing will be made available for a newly designated
immigration benefit requests only when DHS determines that it will have
the resources in place to adjudicate the requests within the time
required, and that the availability of premium processing for that
immigration benefit request will not adversely affect other immigration
benefit requests not designated for premium processing or the regular
processing of immigration benefit requests so designated.\34\
Nevertheless, while acknowledging its peripheral impacts as an
overlapping or interrelated rulemaking, DHS has determined that, at
this time, premium processing revenue is not sufficient to appreciably
affect non-premium fees. Thus, this proposed rule does not include
changes directly resulting from the USCIS Stabilization Act or premium
processing rule, except to conform 8 CFR 106.4 to the USCIS
Stabilization Act's requirements. DHS recognizes, however, that it will
have more information about the revenue collected from premium
processing services by the time DHS publishes a final rule. If
appropriate, DHS will consider including premium processing revenue and
costs in the final rule. USCIS' forecasted demand for premium
processing, revenue projections, and spending plans for the premium
processing rule are discussed in greater detail in the premium
processing rule. See 87 FR 18227 (Mar. 30, 2022). While DHS estimates
that the premium processing rule will increase USCIS annual revenues
over the next ten years, as stated previously, because of the resources
required for expanding the availability of premium processing to newly
designated immigration benefit requests, full implementation of
expanded premium processing is estimated to be complete around FY 2025.
This timeline for full implementation will allow current premium
processing revenue to fund other authorized uses and strategic
improvements until adequate revenues exist to cover the costs of
providing expedited processing of the new

[[Page 420]]

requests. USCIS plans to use premium processing revenue to provide
premium processing service, improve our information technology
infrastructure, and reduce backlogs. Accordingly, although the revenue
from premium processing is not considered in this proposed rule as
previously indicated, the costs for USCIS to provide premium processing
service, improve our information technology infrastructure, and reduce
the backlog are also not considered in the proposed fees. Examples of
premium processing costs include:
---------------------------------------------------------------------------

\33\ See Public Law 116-159, sec. 4102(c) (Oct. 1, 2020).
\34\ See Public Law 116-159, sec. 4102(c) (Oct. 1, 2020).
---------------------------------------------------------------------------

Realignment of $25.1 million for IRIS Directorate
information technology (IT) functions and support contracts in FY 2021.
Office of Information Technology GE costs of $363.6
million and $497 million for FY 2021 and FY 2022 respectively.
$57.5 million in FY 2021 and $58.1 million in FY 2022 for
Service Center Operations general expenses.
Therefore, the projected revenue to be collected from future
premium processing services established by the premium processing rule
is too attenuated to be considered in the current biennial fee study
and the ABC full cost recovery model used for this rule without placing
USCIS at risk of revenue shortfalls if that revenue did not
materialize. DHS has historically excluded premium processing revenue
and costs from its IEFA fee reviews and rulemakings to ensure that
premium processing funds are available for infrastructure investments
largely related to information technology, are available to provide
staff for backlog reduction, and to ensure that non-premium fees were
set at a level sufficient to cover the base operating costs of USCIS.
As noted above, if the revenue collected from premium processing
services becomes more significant and certain before DHS publishes a
final rule, DHS will consider including premium processing revenue and
costs in the final rule. In the next USCIS biennial fee study, DHS will
take into consideration the future effects of the premium processing
rule and the USCIS Stabilization Act allowing for premium processing
revenue to be used for more general uses than what was previously
authorized.

F. EB-5 Reform and Integrity Act of 2022

On March 15, 2022, the President signed the EB-5 Reform and
Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act,
2022, Public Law 117-103. The EB-5 Reform and Integrity Act of 2022
immediately repealed the Regional Center Pilot Program created by the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat. 1828,
sec. 610(b). The law also authorizes a new EB-5 Regional Center
Program, effective May 14, 2022, and is authorized through FY 2026 and
makes various changes to the program. As discussed more fully in
section VIII.O. of this preamble, DHS proposes new fees for the forms
used in the EB-5 program in this rule.
The EB-5 Reform and Integrity Act of 2022 requires DHS to conduct a
fee study not later than 1 year after the date of the enactment of this
Act and, not later than 60 days after the completion of the study, set
fees for EB-5 program related immigration benefit requests at a level
sufficient to recover the costs of providing such services, and
completing the adjudications within certain time frames. See Public Law
117-103, sec. 106(b). Further, the law provides that the fee
adjustments that it requires are notwithstanding the requirements of
INA section 286(m), 8 U.S.C. 1356(m), the authority under which we are
publishing this rule. Id. The law also provides that the fee study
required by 106(a) does not preclude DHS from adjusting its fees in the
interim. Id. sec. 106(f). Therefore, DHS proposes new fees for the EB-5
program forms in this rule using the full cost recovery model described
herein that we have used to calculate those fees since the program's
inception and not the fee study parameters and processing time frames
required by the EB-5 Reform and Integrity Act of 2022. USCIS will
collect fees established under INA section 286(m), 8 U.S.C. 1356(m),
for the EB-5 program, including as may be effected by a final rule for
this proposed rule, until the fees established under section 106(a) of
the EB-5 Reform and Integrity Act of 2022 take effect.

G. Fee Review History

1. Current State of USCIS Fee Schedule Regulations
On August 3, 2020, DHS published the 2020 fee rule, with an
effective date of October 2, 2020, to adjust the USCIS fee schedule and
make changes to certain other immigration benefit request requirements.
On September 29, 2020, the United States District Court for the
Northern District of California granted a motion for a preliminary
injunction of the 2020 fee rule in its entirety and stayed the final
rule's effective date in ILRC. On October 8, 2020, the United States
District Court for the District of Columbia also granted a motion for a
preliminary injunction and stay of the effective date of the final rule
in NWIRP. DHS subsequently issued a notification of preliminary
injunction on January 29, 2021, to inform the public of the two
preliminary injunctions. See 86 FR 7493. The Department continues to
comply with the terms of those orders and is not enforcing the
regulatory changes set out in the 2020 fee rule. In addition to the
changes made in the 2020 fee rule, in 2019 DHS revised USCIS fee waiver
policies and USCIS Form 1-912, including by requiring fee waiver
applicants to use the revised Form I-912, requiring waiver applicants
to submit tax transcripts to demonstrate income, and not accepting
evidence of receipt of a means-tested public benefit as evidence of
inability to pay as described (``the 2019 Fee Waiver Revisions''). See
USCIS Policy Manual Volume 1: General Policies and Procedures, Part B,
Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee
Waivers which were issued on October 25, 2019 and took effect on
December 2, 2019 City of Seattle v. Dep't of Homeland Sec., No. 3:19-
CV-07151-MMC (N.D. Cal. Dec.; see also 84 FR 26137 (June 5, 2019) (30-
day notice announcing changes to USCIS fee waiver polices and USCIS
Form I-912, submission to OMB, and requesting public comment). On
December 11, 2019, the United States District Court for the Northern
District of California preliminarily enjoined the 2019 Fee Waiver
Revisions in11, 2019) (``City of Seattle''). USCIS continues to accept
the fees that were in place before October 2, 2020, and follow the
guidance in place before October 25, 2019, to adjudicate fee waiver
requests.
DHS and the parties in ILRC, NWIRP, City of Seattle, and the
related cases agreed to, and the courts have approved, a stay of those
cases while the agency undertook this fee review and prepared this
notice of proposed rulemaking.
While DHS is enjoined from implementing or enforcing the 2020 fee
rule, the revisions set out in that rule were codified. While 8 CFR
part 106 and the other revisions set out in the 2020 fee rule are found
in the CFR, DHS did not implement them and continues to charge the fees
and follow the fee waiver policies that were, for the most part, in 8
CFR 103.7 as it existed before October 2, 2020. By this rulemaking, DHS
will replace the enjoined regulations and correct the currently
incorrect USCIS fee regulations in the CFR.
Because the 2020 fee rule was codified, this rule proposes to amend
the text of certain changes made by the

[[Page 421]]

2020 fee rule and codified in the CFR. However, because DHS did not
implement the 2020 fee rule, this preamble discusses substantive
changes that refer to the requirements of the regulations that existed
before October 2, 2020. Likewise, the regulatory impact analysis (RIA)
for this proposed rule analyzes the impacts of the changes between the
pre-2020 fee rule regulations that DHS is following under the
injunctions and those proposed in this rule.
This rule proposes relatively minor wording changes to the changes
codified by the 2020 fee rule, and, in most cases, DHS is only
proposing a new fee amount. However, because DHS could not implement
the regulations codified on October 2, 2020, DHS does not believe that
describing only the amendments to those sections is adequate to provide
the affected public with what it needs to adequately review,
understand, and comment on what is being proposed in this rule.
Therefore, DHS has published entire portions of the regulatory text
being proposed in this rule to provide a clear picture of what DHS is
proposing, including sections that are codified in the CFR but were not
implemented by USCIS.
Many of the proposed provisions in this rule are verbatim or close
to verbatim to what is already codified, although enjoined. However,
because those provisions are enjoined, DHS will address them as if they
are newly proposed and cite to, for example, ``proposed 8 CFR 106.2.''
When this preamble discusses the no longer codified but still in effect
provisions of title 8 of the CFR, the standard of citing to the CFR
print edition date \35\ may be inaccurate because title 8 was amended
by a number of rules during calendar year 2020. Therefore, when citing
fee regulations as they existed on October 1, 2020, the regulatory
citation will be followed by that date. For example, the citation for
the Biometric Services fee that was removed by the 2020 fee rule but is
still in effect would be written, ``See 8 CFR 103.7(b)(1)(i)(C) (Oct.
1, 2020).'' \36\ When citing to a provision that was codified by the
2020 fee rule that is not proposed in this rule, the regulatory
citation will be followed by the effective date of the 2020 fee rule.
For example, the citation for the separate fees for different versions
of Form I-129 is cited as ``8 CFR 106.2(a)(3) (Oct. 2, 2020).''
---------------------------------------------------------------------------

\35\ The soft bound print edition of the CFR is revised on a
quarterly basis. Titles 1 through 16 are revised as of January 1
each year.
\36\ Readers may find the OFR's eCFR a useful tool to review
historic regulatory text. For more information on viewing historical
versions of the eCFR, see https://www.ecfr.gov/reader-aids/using-ecfr/ecfr-changes-through-time.
---------------------------------------------------------------------------

As stated previously, this rule would replace the changes about
which the plaintiffs in ILRC, NWIRP, and City of Seattle brought suit.
For clarity and to avoid unnecessary length in this rule, DHS is not
repeating the amendatory instructions and regulatory text for certain
changes that were made by the 2020 fee rule if the provision is
ministerial, procedural, or otherwise non-substantive, such as a
regulation cross reference, form number or form name. Specifically, DHS
proposes to make no changes to the following provisions that were
codified in the 2020 fee rule:

1. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
2. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
3. Remove ``8 CFR 103.7,'' ``8 CFR 103.7(b)'' and ``8 CFR
103.7(b)(1)'' and ``Sec. 103.7 of this chapter'' and replace it
with ``8 CFR 106.2'' in 8 CFR 204.6, 204.310, 204.311, 204.313,
211.1, 211.2, 212.2, 212.3, 212.4, 212.7, 212.15, 212.18, 214.1,
214.3, 214.6, 214.11, 214.16. 216.4, 216.5, 216.6, 223.2, 236.14,
236.15, 245.7, 245.10, 245.15, 245.18, 245.21, 245.23, 245a.12,
245a.13, 245a.20, 245a.33, 248.3, 264.2, 264.5, 264.6, 286.9, 301.1,
319.11, 320.5, 322.3, 322.5, 324.2. 334.2, 341.1, 341.5, 343a.1,
343b.1, 392.4.
4. Replace all references to ``Form I-129'' and any supplements,
and adding in its place either ``the form prescribed by USCIS,''
``application or petition,'' as appropriate in 8 CFR 214.1 and
214.2.
5. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
6. In 8 CFR part 235, replace ``Sec. 103.7(b)(1) of this
chapter'' and Sec. ``103.7(b)(1)'' with ``8 CFR 103.7(d)(3)'' in 8
CFR 235.1, with ``8 CFR 103.7(d)(7)'' in 8 CFR 235.7, ``8 CFR
103.7(d)(13)'' in 8 CFR 235.12, and ``8 CFR 103.7(d)(14)'' in 8 CFR
235.13.
7. Remove the second sentence of Sec. 245.21(b) and remove and
reserve Sec. Sec. 245.15(c)(2)(iv)(B) and (h)(2),
245.23(e)(1)(iii), and 245.24(d)(3) and (i)(1)(iv).
8. Replace ``Missouri Service Center'' with ``National Benefit
Center'' in 8 CFR 245a.18, 245a.19, and 245a.33.

2. Previous Fee Rules
The USCIS IEFA fee schedule that is in effect was published in the
DHS FY 2016/2017 fee rule. See 81 FR 73292 (Oct. 24, 2016).\37\ That
rule and associated fees became effective on December 23, 2016. With
that rule, DHS adjusted the USCIS immigration benefits fee schedule for
the first time in more than six years, increasing fees by a weighted
average of 21 percent. The fee schedule adjustment recovered all
projected costs for FY 2016/2017, including the costs of the Refugee,
Asylum, and International Operations Directorate (RAIO), SAVE, and the
Office of Citizenship. See 81 FR 26911 and 73293.
---------------------------------------------------------------------------

\37\ The phrase ``FY 2016/2017 fee rule,'' as used in this
proposed rule, encompasses the fee review, proposed rule, final
rule, and all supporting documentation associated with the
regulations effective as of December 23, 2016.
---------------------------------------------------------------------------

The fee schedule had been adjusted previously as well, as follows:
Before the creation of DHS, the Department of Justice
(DOJ) Immigration and Naturalization Service (INS) \38\ adjusted fees
incrementally in 1994. See 59 FR 30520 (June 14, 1994).
---------------------------------------------------------------------------

\38\ The Homeland Security Act of 2002 abolished the INS and
transferred the INS's immigration administration and enforcement
responsibilities from DOJ to DHS. The INS's immigration and
citizenship services functions were specifically transferred to the
Bureau of Citizenship and Immigration Services, later renamed U.S.
Citizenship and Immigration Services. See Public Law 107-296, sec.
451 (6 U.S.C. 271).
---------------------------------------------------------------------------

DOJ conducted a comprehensive fee review using ABC and
adjusted most IEFA fees in 1998. See 63 FR 1775 (Jan. 12, 1998)
(proposed rule); 63 FR 43604 (Aug. 14, 1998) (final rule).
DOJ implemented fees for Nicaraguan Adjustment and Central
American Relief Act (NACARA) between 1998 and 1999. See 63 FR 64895
(Nov. 24, 1998) (proposed rule); 64 FR 27856 (May 21, 1999) (final
rule). DOJ adjusted fees for small volume workloads in 2000. See 64 FR
26698 (May 17, 1999) (proposed rule); 64 FR 69883 (Dec. 15, 1999)
(final rule). DOJ implemented premium processing in 2001. See 66 FR
29682 (June 1, 2001). DOJ adjusted fees for inflation in 2002. See 66
FR 65811 (Dec. 21, 2001).
Following the creation of DHS in 2002, the agency adjusted
fees in 2004 and 2005. See 69 FR 20528 (Apr. 15, 2004); 70 FR 50954
(Aug. 29, 2005) (increasing the fee for Form I-290B from $110 to $385);
70 FR 56182 (Sept. 26, 2005).
After those incremental changes, DHS published a
comprehensive FY 2008/2009 fee rule in 2007. See 72 FR 29851 (May 30,
2007).
DHS further amended USCIS fees in the FY 2010/2011 fee
rule. See 75 FR 58962 (Sept. 24, 2010). This rule removed the costs of
RAIO, SAVE, and the Office of Citizenship from the fee schedule, in
anticipation of appropriations from Congress that DHS requested. See 75
FR 58961, 58966. These resources did not fully materialize, requiring
USCIS to use other fee revenue to support these programs in the time
between the FY 2010/2011 fee rule and the FY 2016/2017 fee rule. See 81
FR 26910-26912.
The supporting documentation accompanying this proposed rule in the

[[Page 422]]

rulemaking docket at https://www.regulations.gov contains a historical
fee schedule that shows the immigration benefit fee history since
October 2005.\39\
---------------------------------------------------------------------------

\39\ For IEFA fee history before 2005, see USCIS, ``FY 2016/2017
Immigration Examinations Fee Account Fee Review Supporting
Documentation with Addendum'' (Oct 25, 2016), https://www.regulations.gov/document/USCIS-2016-0001-0466. Appendix VIII--
IEFA Fee History, page 56, provides fees from FY 1985 to Nov. 2010.
---------------------------------------------------------------------------

3. Current Fees
Table 2 summarizes the IEFA and biometric services fee schedule
that took effect on December 23, 2016. DHS is proposing to change the
current fee schedule as a result of the FY 2022/2023 fee review. The
table excludes statutory fees that DHS cannot adjust or can only adjust
for inflation.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP04JA23.009

[GRAPHIC] [TIFF OMITTED] TP04JA23.010

[[Page 423]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.011

[[Page 424]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.012

BILLING CODE 9111-97-C

IV. Fee-Setting Approach--Reversal of 2020 Fee Rule
---------------------------------------------------------------------------

\40\ Form, when used in connection with a benefit or other
request to be filed with DHS to request an immigration benefit,
means a device for the collection of information in a standard
format that may be submitted in a paper format or an electronic
format as prescribed by USCIS on its official website. The term
``Form'' followed by an immigration form number includes an approved
electronic equivalent of such form as made available by USCIS on its
official website. See 8 CFR 1.2 and 299.1. The word ``form'' is used
in this proposed rule in both the specific and general sense.
\41\ As described in this notice of proposed rulemaking (NPRM),
the United States' obligations under the 1967 Protocol relating to
the Status of Refugees (incorporating Article 28 of the 1951
Convention relating to the Status of Refugees) guide the Application
for Travel Document fees for a Refugee Travel Document. The USCIS
ABC model does not set these fees. See 8 CFR 103.7(b)(1)(i)(M)(1)
and (2) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(7)(i) and (ii).
\42\ Form I-191 was previously titled Application for Advance
Permission to Return to Unrelinquished Domicile. See 8 CFR
103.7(b)(1)(i)(O) (Oct. 1, 2020).
\43\ The Form I-192 fee remained $585 when filed with and
processed by U.S. Customs and Border Protection (CBP). See 8 CFR
103.7(b)(1)(i)(P) (Oct. 1, 2020).
\44\ This reduced fee is applied to ``an applicant under the age
of 14 years when [the application] is: (i) Submitted concurrently
with the Form I-485 of a parent; (ii) The applicant is seeking to
adjust status as a derivative of his or her parent; and (iii) The
child's application is based on a relationship to the same
individual who is the basis for the child's parent's adjustment of
status, or under the same legal authority as the parent.'' 8 CFR
103.7(b)(1)(i)(U)(2) (Oct. 1, 2020).
\45\ Currently there are two USCIS fees for Form I-881: $285 for
individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)(1)
(Oct. 1, 2020). DOJ's Executive Office for Immigration Review (EOIR)
has a separate $165 fee, which applies when one or more applicants
file with the immigration court.
\46\ USCIS excluded Form I-905, Application to Issue
Certification for Health Care Workers, from the FY 2022/2023 fee
review. As such, it will not appear in any tables in this NPRM that
display results of the FY 2022/2023 fee review. USCIS does not have
a FY 2022/2023 forecast for Form I-905 because it has a five-year
renewal cycle and only four applicants file it. USCIS adjudicates it
manually, meaning it does not track the filings in any case
management system. Future fee reviews may evaluate this fee if more
information is available.
\47\ USCIS excluded Form I-941, Application for Entrepreneur
Parole, from the FY 2022/2023 fee review. As such, it will not
appear in tables for workload, in tables for fee-paying volume, or
elsewhere in this NPRM. DHS published a separate NPRM that proposed
to terminate the program. See 83 FR 24415 (May 29, 2018). However,
DHS withdrew that NPRM. See 86 FR 25809 (May 11, 2021). As of Sep.
30, 2021, there are 24 FY 2021 receipts and only 54 receipts since
the beginning of the program. DHS does not believe it has sufficient
information to review this fee at this time. DHS does not propose
any changes to this fee but may evaluate the fee in future fee
reviews when more information is available.
---------------------------------------------------------------------------

In the 2020 fee rule NPRM, DHS explained that it was shifting its
fees away from an ability-to-pay model to a beneficiary-pays model. See
84 FR 62298 (Nov. 14, 2019); see also 85 FR 46795 (Aug. 3, 2020) (final
rule stating that DHS had proposed shifting to a beneficiary-pays
model). As described by the U.S. Government Accountability Office
(GAO), under the beneficiary-pays principle, the beneficiaries of a
service pay for the cost of providing that service.\48\ Under the
ability-to-pay principle, those who are more capable of bearing the
burden of fees pay more for the service than those with less ability to
pay. Id. Before the 2020 fee rule, DHS engaged in a balance of these
two fee-setting principles when setting USCIS fees. Generally, DHS has
given more weight to the ability-to-pay than the beneficiary-pays
principle when setting USCIS fees, and has made affordability a central
consideration.\49\ At the same time, DHS has not wholly rejected the
beneficiary-pays principle, including when the agency made clear that
it would not authorize fee waivers

[[Page 425]]

where such a waiver is inconsistent with the benefit requested, which
may require establishing financial stability. See 75 FR 58974 (Sept.
24, 2010). In addition, in past fee rules, DHS has declined to expand
USCIS fee waivers to benefits for which the eligibility requires
financial stability because that would contradict the rationale for
shifting costs related to those applications to others through fee
waivers. See 72 FR 29863 (May 30, 2007). DHS has also previously
declined suggestions that it reduce the burden on low-income requestors
by setting USCIS fees based on income using a tiered fee system,
because the benefits from such a scenario would not justify the
administrative costs added by requiring officers to adjudicate the
documentation of the applicant's income and eligibility for the
requested fee level before processing the request. Id. In the 2020 fee
rule, DHS was concerned that the level of USCIS annual forgone revenue
from fee waivers and exemptions had increased markedly from $191
million in the FY 2010/2011 fee review to $613 million in the FY 2016/
2017 fee review. See 85 FR 46807 (Aug. 3, 2020) (citing 81 FR 26922 and
73307). DHS estimated in the 2020 fee rule supporting documentation
that, without changes to fee waiver policy, it would forgo revenue of
almost $1.5 billion and believed that the fees necessary to recoup that
foregone revenue \50\ were too high to support the continuation of the
existing fee waiver policy.\51\ DHS notes, however, that in the 2020
fee rule, the agency did not abandon the ability-to-pay principle
altogether, and still provided for fee exemptions and statutorily
mandated fee waivers in certain circumstances.
---------------------------------------------------------------------------

\48\ See GAO, ``Federal User Fees: A Design Guide'' (May 29,
2008), https://www.gao.gov/products/GAO-08-386SP, at 7-12.
\49\ See 81 FR 26934 (May 4, 2016) (stating, ``The lower fee
would help ensure that those who have worked hard to become eligible
for naturalization are not limited by their economic means.'').
\50\ In this context, ``foregone revenue'' refers to the dollar
value associated with an approved fee waiver or fee-exempt forms and
benefits.
\51\ See, e.g., 85 FR 46799 (Aug. 3, 2020) (stating that the fee
for Form N-400 would represent the estimated full cost to USCIS and
be determined in the same manner as most other USCIS fees).
---------------------------------------------------------------------------

In this new fee rule, DHS proposes to return the focus of its fee-
setting away from emphasizing the beneficiary-pays principle towards
the historical balance between the beneficiary-pays and ability-to-pay
principles. DHS proposes this for several reasons.
First, DHS has been directed by the President to reduce barriers
and promote accessibility to the immigration benefits that it
administers. See Executive Order 14012, 86 FR 8277 (Feb. 2, 2021) (E.O.
14012). As the President noted in section 1 of the Executive order, new
Americans and their children fuel our economy; contribute to our arts,
culture, and government; and have helped the United States lead the
world in science, technology, and innovation. DHS agrees with the
President's goals of E.O. 14012, and that our laws and policies must
encourage full participation by immigrants, including refugees, in our
civic life, and that immigration benefits must be delivered effectively
and efficiently. More specifically, sections 3(a)(i) and 5(a)(iii) of
E.O. 14012, respectively, instruct the Secretary of Homeland Security
to identify barriers that impede access to immigration benefits and
make the naturalization process more accessible to all eligible
individuals, including through a potential reduction of the
naturalization fee and restoration of the fee waiver process. Id. USCIS
has already taken crucial steps towards ensuring fair access and
removing unnecessary barriers and bureaucracy. See, e.g., Preserving
Continuous Residence and Physical Presence for Purposes of
Naturalization while Engaged in Religious Duties Outside the United
States (May 25, 2021); \52\ Naturalization Eligibility and Voter
Registration Through a State's Benefit Application Process (May 27,
2021); \53\ Veterans Residing Outside the United States and
Naturalization (May 28, 2021); \54\ Assisted Reproductive Technology
and In-Wedlock Determinations for Immigration and Citizenship Purposes
(August 5, 2021); \55\ Clarifying Guidance on Military Service Members
and Naturalization (November 12, 2021); \56\ Demonstrating Eligibility
for Modification under Section 337 (November 19, 2021).\57\
---------------------------------------------------------------------------

\52\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Preserving Residence, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210525-PreservingResidence.pdf (last updated May 25, 2021).
\53\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Naturalization Eligibility and Voter Registration Through
a State's Benefit Application Process, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210527-VoterRegistration.pdf (last updated May 27, 2021).
\54\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Veterans Residing Outside the United States and
Naturalization, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210528-MilitaryVeterans.pdf (last updated
May 28, 2021).
\55\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Assisted Reproductive Technology and In-Wedlock
Determinations for Immigration and Citizenship Purposes, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210805-AssistedReproductiveTechnology.pdf (last updated Aug 5,
2021).
\56\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Clarifying Guidance on Military Service Members and
Naturalization, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-MilitaryNaturalization.pdf (last
updated Nov 12, 2021).
\57\ This guidance allows children born to married legal
parents, one of whom has a genetic or gestational link to the child,
to acquire citizenship because these children are now considered
born in wedlock. Immigration and Nationality Act. U.S. Citizenship
and Immigr. Servs., U.S. Dep't of Homeland Security, Demonstrating
Eligibility for Modification under Section 337 of the Immigration
and Nationality Act, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211119-ModificationUnderINA337.pdf
(last updated Nov 19, 2021).
---------------------------------------------------------------------------

As part of implementing Executive Order 14012, USCIS published a
Request for Public Input \58\ (RPI) on reducing barriers and burdens
across USCIS benefits and services as part of implementing Executive
Order 14012. It received nearly 7,400 public comments as a result.
USCIS analyzed these comments and incorporates actionable suggestions
into this proposed rule including expanding fee exemptions, clarifying
the financial hardship criteria for fee waivers, and maintaining the
reduced fee for naturalization.
---------------------------------------------------------------------------

\58\ See 86 FR 20398 (Apr. 19, 2021).
---------------------------------------------------------------------------

Second, DHS has read and considered the many comments that we
received on the 2020 fee rule that stated that the increased fees and
restrictions on fee waivers in that rule would result in many fewer
residents accessing a desired immigration status for which they are
eligible, simply because they cannot afford to apply. Others wrote that
the proposed naturalization fee increase would make naturalization
unaffordable. Thus, many public comments on the 2020 fee rule indicated
a preference for DHS placing greater emphasis on the ability-to-pay
principle in setting its fees. As a result of these comments, and to
encourage full economic and civic participation by immigrants, DHS has
also analyzed the effects of this rule in light of its impacts on low-
income populations and organizations that assist them in section IX.A,
Impact of Fees.
As stated earlier, DHS is operating under two injunctions that
preclude it from implementing or following the changes made by the 2020
fee rule, as well as an injunction that precludes it from implementing
the 2019 Fee Waiver Revisions. Thus, DHS must consider the concerns
expressed and the courts' findings in those cases. For example, in
ILRC, the order granting the injunction found that DHS failed to
analyze the effect of that rule's fees on the demand for immigration
benefit requests. The order also found that the rule's deviations from
the beneficiary-pays principle conflict with the comments presented on
the effects of these changes on low-income and vulnerable

[[Page 426]]

immigrant populations. See ILRC at 27. Similarly, the court in NWIRP
agreed with the plaintiffs that the fees and fee waiver regulations in
the 2020 fee rule could cause harm to low-income immigrants. See NWIRP
at 72.
DHS proposes to set USCIS fees at the level required to recover the
full cost of providing immigration adjudication and naturalization
services, as permitted or required by law, while providing certain fee
exemptions and waivers for low-income immigrants. As USCIS estimates
that the current fee structure will not generate sufficient revenue to
cover the projected costs of providing immigration adjudication and
naturalization services under the ABC methodology, the fees for many
immigration benefit requests will by necessity increase. Nevertheless,
where DHS has determined that this rule's approach would inequitably
impact the ability of those who may be less able to afford the proposed
fees to seek an immigration benefit for which they may be eligible, DHS
proposes either to maintain the pre-2020 fee rule regulations, fee
waivers, and reduced fees that USCIS is following, or to add new fee
exemptions to address accessibility and affordability. For example, as
detailed more fully later in this preamble, DHS proposes to maintain
the fee waiver regulations and eligibility guidance that took effect in
2010. Consistent with previous fee rules, DHS also proposes to limit
the fees for certain benefit requests in recognition that fees set at
the ABC model output for these forms would be overly burdensome. For
example, as detailed later in this preamble, both considering the
affordability of naturalization, and to promote naturalization for the
benefits it provides to the country, DHS proposes to set the fee for
Form N-400 at a level below what is required to recover the estimated
full cost of providing naturalization services. In addition, DHS
proposes to expand fee exemptions for certain vulnerable populations,
as described later in this preamble.\59\
---------------------------------------------------------------------------

\59\ See section VII, Fee Exemptions.
---------------------------------------------------------------------------

DHS acknowledges that the ability-to-pay principle necessarily
requires the shifting of costs. If some customers are exempt from
paying fees or have their fees waived, total fee collections cannot
cover the total program costs unless other users pay higher fees to
cover the costs associated with processing the benefit requests of non-
paying users. USCIS follows the principles in OMB Circular A-25 and
uses an ABC model to align its fees closely with the estimated cost for
the relevant service. When DHS deviates from the ABC model to limit,
waive, or exempt certain customers from fees because they are overly
burdensome, or to advance a public policy priority, this results in the
fees for particular services being set at a level that is higher than
the estimated cost of providing those services to fee-paying users.
That means that DHS examined each fee in this proposed rule, and the
fees proposed represent the Department's best effort to balance of
access, affordability, equity, and benefits to the national interest
while providing USCIS with the funding necessary to maintain adequate
services.

V. FY 2022/2023 Immigration Examinations Fee Account Review

A. USCIS Projected Costs and Revenue

The primary objective of the fee review is to determine whether
current immigration and naturalization benefit fees will generate
sufficient revenue to fund anticipated operating costs associated with
administering USCIS' role in the Nation's legal immigration system.
USCIS examines its recent budget history, service levels, and
immigration and naturalization trends to forecast costs, revenue, and
operational metrics. These data help USCIS identify the difference
between anticipated costs and revenue as well as calculate proposed
fees. DHS provides a brief summary of how the USCIS budget has evolved
from the projections included in the FY 2016/2017 fee rule for context
before discussing the elements of the FY 2022/2023 fee review. The FY
2022/2023 fee review encompasses three core elements:
Cost projections;
Revenue projections; and
Cost and revenue differential (the difference between cost
and revenue projections).
1. USCIS Budget History
USCIS' costs have grown beyond the levels projected in the FY 2016/
2017 fee rule, which went into effect on December 23, 2016. This cost
growth reflects increased USCIS workloads and staffing requirements
during that time. The FY 2016/2017 fee rule estimated that an average
annual IEFA non-premium cost projection of $3,037.8 million was
required to meet USCIS' operational requirements.
Spending grew by $1 billion or 28 percent between FY 2016 and FY
2019, while revenue only grew by $406 million or 12 percent during the
same period. Spending was driven by $943 million of one-time and
recurring enhancements provided over the same time period due to a
leadership directive to reduce carryover to around $800 million. The
majority of this increased spending was attributed to an additional
3,800 positions that were added between FY 2017 and FY 2019.\60\ No
enhancements were added in FY 2020 due to budget reductions. Increased
spending in enhancements in FY 2019 were approved based on the
assumption that the FY 2019/2020 fee rule would be implemented in the
summer of FY 2019, however subsequent to those decisions the FY 2019/
2020 fee rule was delayed until the end of FY 2020.
---------------------------------------------------------------------------

\60\ See the supporting documentation in the docket for this
rule for more information. Appendix Table 9 on page 49 shows on-
board staffing by office and fiscal year. Please note that on-board
staffing is a subset of authorized staffing.
---------------------------------------------------------------------------

Despite the spending increases between FY 2016 and FY 2019, USCIS
did not always spend as much as the plan called for, and carryover
remained in a relatively strong position (about $1.2 billion) at the
end of both FY 2017 and FY 2018. By the end of FY 2019, however,
carryover had decreased to about $850 million. In first half of FY
2020, before the onset of the COVID-19 pandemic, the agency had
substantially increased its first and second quarter spending, due to
the timing of contracts and on-board levels; this drew carryover down
to about $600 million at the end of February, with less than $200
million in non-premium carryover, which funded 80 percent of USCIS
operations. Although USCIS had surplus premium funding of about $400
million, those funds were fenced due to statutory restrictions and
could not be used to offset the deficit.
In the Spring of 2020, in the wake of the COVID-19 pandemic, USCIS
revenue dropped by 40 percent in April and an additional 25 percent in
May from the forecasted collections. That created a possibility that
USCIS might violate statutory anti-deficiency requirements and led to
dramatic cuts in spending through the last half of FY 2020, a hiring
freeze, and planned furloughs if revenue did not increase.
Towards the end of June and July of 2020, revenue began to return
to normal levels, and in conjunction with major budget cuts, allowed
USCIS to avoid the furloughs. In FY 2021, USCIS instituted 32 percent
cuts to non-payroll expenses, continued the hiring freeze through April
2021, and did not fund enhancements. While USCIS carryover has
stabilized and is projected to be over $600 million from non-premium
fees at the end of FY 2022, USCIS is still living with effects of those
32 percent budget cuts. USCIS has a minimum carryover

[[Page 427]]

threshold of $1,063.8 million in the non-premium IEFA.\61\
---------------------------------------------------------------------------

\61\ See the IEFA Non-Premium Carryover Projections section of
the supporting documentation for how and why USCIS requires a
minimum carryover balance.
---------------------------------------------------------------------------

The FY 2021 non-premium IEFA cost projections, which USCIS uses as
the base for its FY 2022/2023 fee review cost projections, totals
$3,776.3 million.\62\ As discussed later in greater detail, the FY
2022/2023 fee review projects costs of $5,150.7 million for USCIS to
fulfill its IEFA non-premium operational needs on an average annual
basis.
---------------------------------------------------------------------------

\62\ The USCIS FY 2021 Annual Operating Plan amount of $3,776
million was reported in the FY 2022 Congressional Budget
Justification and USCIS used this amount for cost projections to
develop the proposed new fee structure. In March 2021, the USCIS FY
2023 Congressional Budget Justification reported a different total
FY 2021 Annual Operating Plan of $3,524 million. This fee review
uses the earlier FY 2021 operating plan amount, which was a
reasonable assumption at the time.
[GRAPHIC] [TIFF OMITTED] TP04JA23.013

The combined average non-payroll or general expenses (GE) \63\
budget for the FY 2016/2017 fee review of $1,406.5 million increased by
only 4.3 percent to $1,467.0 million in the FY 2021 Operating Plan
(OP), which is a detailed spend plan for the agency that is finalized
in the summer before the start of the fiscal year. Typically, the
operating plan is executed closely to the original plan and is
indicative of the resources needed for each of the Directorates and
Program Offices to execute throughout the year. Excluding increased
contingency funding, the GE budget actually decreased from $1,406.5
million in the FY 2016/2017 fee review to $1,258.0 million in the FY
2021 OP, a decrease of $148.5 million or 10.6 percent. As evidenced by
the financial strains placed on USCIS by the COVID-19 pandemic,
however, USCIS must maintain additional contingency funding to deal
with emergent operational needs and provide funding in the event of
unforeseen financial shortfalls and seasonal fluctuations in filing
volumes and revenues.\64\ Additionally, GAO acknowledges that fee
funded agencies may need to designate funds as operating reserves to
weather periods when revenue collections are lower than costs.\65\
Therefore, USCIS decided to increase its contingency cost projection in
the FY 2021 OP and maintain the same level in the fee review cost
budget in case of continued negative effects from the pandemic. USCIS
may use contingency funding to cover emergent costs from policy
decisions, renegotiation of contracts, or new leases that were not
included initially in the OP or in the projected biennial period's cost
budget.
---------------------------------------------------------------------------

\63\ General expenses (GE) refers to non-pay expenses, such as
office equipment, technology, training, and travel.
\64\ See USCIS, ``Deputy Director for Policy Statement on USCIS'
Fiscal Outlook'' (June 25, 2020), https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook. See also USCIS, ``USCIS Averts Furlough of Nearly 70% of
Workforce (Aug. 25, 2020), https://www.uscis.gov/news/news-releases/uscis-averts-furlough-of-nearly-70-of-workforce.
\65\ See U.S. Government Accountability Office, Federal User
Fees: Fee Design Options and Implications for Managing Revenue
Instability (Sept. 30, 2013), https://www.gao.gov/assets/gao-13-820.pdf.
---------------------------------------------------------------------------

The limited growth in USCIS' GE budget is the result of actions
taken by USCIS to constrain cost growth. In response to reduction in
applicant volume and associated revenues during the COVID-19 pandemic,
USCIS implemented significant GE cost-saving measures in FY 2020 and FY
2021. These cuts enabled USCIS to redirect resources to fund payroll
and ensure that USCIS did not have to furlough any employees. These
cuts included GE reductions of up to 32 percent across all USCIS
offices, including a pause on new GE expenditure, reduced travel,
implementing shorter periods of performance for contracts, and a freeze
on implementing new contracts. Notable examples of GE budget decreases
from FY 2016/2017 to FY 2021 include:
$103.7 million (32 percent) decrease in IT equipment,
software, and related contractor support;
$36.8 million (52.2 percent) decrease in the USCIS Office
of Citizenship and Applicant Information Services' (CAIS) GE budget,
which included a reduction to the call center support contract and
removal of Office of Citizenship grants that were included in the FY
2016/2017 fee rule budget;
$27.3 million (59.9 percent) decrease in travel and
training across all USCIS offices; and
$52.4 million (83 percent) decrease in Service Center
Operations (SCOPS) contractor support.
While USCIS will need to reverse some of the GE spending cuts it
has made to ensure the continuation of its operations, USCIS projects
that some of these cuts will be permanent, in an effort to limit cost
growth and the increase in fees. Further details of restored GE budget
cuts in the FY 2022/2023 fee review cost projections are found in
section V.A.2.a of this preamble.
In contrast to the limited growth in non-payroll expenses relative
to the FY 2016/2017 fee review budget, USCIS' payroll costs have
increased substantially due to an increase in staffing. The combined
average IEFA non-premium payroll budget for the FY 2016/2017 fee review
of $1,631.3 million increased by 41.6 percent to $2,309.3 million in
the FY 2021 OP. USCIS experienced a significant increase in application
volume during the FY 2016/2017 to FY 2021 period and adjusted its
staffing requirements accordingly. The FY 2016/2017 fee review
accounted for 14,543 fully funded positions, while as of pay period 6
of FY 2021 (March 27, 2021) USCIS had 18,840 positions authorized to be
funded with IEFA non-premium funds (an increase of 29.5 percent). This
greater number of positions reflects increased operational demands on
USCIS, including growth in workload volumes, growth in the time
required

[[Page 428]]

per case which is in part driven by a combination of changing
adjudication policy and length of the forms, and expanded
responsibilities for other offices, such as Fraud Detection and
National Security (FDNS), including social media vetting.\66\ Payroll
budget increases from FY 2016/2017 to FY 2021 include:
---------------------------------------------------------------------------

\66\ In 2004, USCIS established the Fraud Detection and National
Security Directorate (FDNS) in response to a Congressional
recommendation to establish an organization ``responsible for
developing, implementing, directing, and overseeing the joint USCIS-
Immigration and Customs Enforcement (ICE) anti-fraud initiative and
conducting law enforcement/background checks on every applicant,
beneficiary, and petitioner prior to granting immigration
benefits.'' See, Conference Report to accompany H.R. 4567 [Report
108-774], ``Making Appropriations for the Department of Homeland
Security for the Fiscal Year Ending September 30, 2005,'' p. 74,
available at https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf. The Fraud Prevention and Detection Account and the
H-1B Nonimmigrant Petitioner Account are funded by statutorily set
fees, and divided among USCIS (for fraud detection and prevention),
the National Science Foundation, and the U.S. Department of Labor.
See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out of both the IEFA and
the fraud detection and prevention account because the fees fixed by
the statute are insufficient to cover the full costs of FDNS. The
Fraud fee account revenue collections are divided in three thirds,
one for the Department of State, one for the Department of Labor,
and one for USCIS. https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf. The Fraud Prevention and Detection Account
and the H-1B Nonimmigrant Petitioner Account are funded by
statutorily set fees, and divided among USCIS (for fraud detection
and prevention), the National Science Foundation, and the U.S.
Department of Labor. See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out
of both the IEFA and the fraud detection and prevention account
because the fees fixed by the statute are insufficient to cover the
full costs of FDNS. The Fraud fee account revenue collections are
divided in three thirds, one for the Department of State, one for
the Department of Labor, and one for USCIS.
---------------------------------------------------------------------------

New positions across all USCIS offices: $324.2 million
(19.9 percent). Due to the operational impact of the COVID-19 pandemic
and potential furlough of USCIS employees, FY 2020 and FY 2021 did not
have any new authorized positions;
Pay raises: $167.7 million (10.0 percent). Pay raises were
1.3 percent in FY 2016 and 1.0 percent in FY 2021.\67\ The highest
annual pay raise of 3.1 percent occurred in FY 2020; and
---------------------------------------------------------------------------

\67\ For a history of Federal salary data, see Office of
Personnel Management (OPM), Policy, Data, Oversight: Pay and Leave
available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/. OPM sets Federal salary levels, not DHS.
---------------------------------------------------------------------------

Significant payroll increases due to an increase in
staffing levels in these USCIS offices and directorates:
[cir] Asylum Division: $49.7 million (40.2 percent);
[cir] Field Office Directorate: $150.5 million (24.7 percent);
[cir] FDNS: $91.4 million (73.6 percent); and
[cir] SCOPS: $184.6 million (68.7 percent).
2. FY 2022/2023 Cost Projections
In developing projected program needs for FY 2022/2023, USCIS used
the FY 2021 operating plan (OP) as the starting point. Actual and
anticipated changes from the FY 2021 OP are discussed in this section.
Enacted funds from FY 2022 are not included in the projections. In
addition, there are standard pay adjustments and increases to programs
to maintain current services that are fairly standard in budget
development. Examples of necessary adjustments include:
Pay inflation and within-grade pay step increases ($2.67
billion in FY 2022 and an additional $2.76 billion in FY 2023). The
assumed Government-wide pay inflation rate for FY 2022 and FY 2023 is
2.7 percent and 1.6 percent respectively.
Staffing requirements ($315.7 million in FY 2022 and an
additional $34.8 million in FY 2023). USCIS models staffing allocations
and costs based on projected workload volumes. See section V.B. of this
preamble for information on how workload and completion rates affect
staffing. Staffing allocation model cost estimates are also influenced
by position type, grade level and locality.
Overall, the IEFA cost baseline increases by 35.3 percent in FY
2022 and 37.4 percent in FY 2023 both relative to the FY 2021 OP. A
detailed summary of adjustments to the FY 2021 OP that resulted in the
projected budget requirements for FY 2022 and FY 2023 follows.
Despite the growth in USCIS' IEFA non-premium budget from the
levels projected in the FY 2016/2017 fee review to the levels in the FY
2021 OP, USCIS remains underfunded to accomplish its operational
objectives, and processing backlogs continue to grow. See section III.A
of this preamble for information on supplemental appropriations for the
backlog.\68\ USCIS projects that its IEFA non-premium cost projections
must increase by 36.4 percent from $3,776.3 million in FY 2021 to an
average of $5,150.7 million in FY 2022/2023 to fulfill USCIS'
operational requirements. This increase in funding will ensure that
USCIS is able to meet its operational needs during the biennial period.
The following subsections provide more details on the required
increases for the FY 2022/2023 cost projections.
---------------------------------------------------------------------------

\68\ The appropriated funds will be focused mainly on reducing
current backlogs and not on processing future requests. If USCIS
does not increase revenue to meet the costs of timely adjudicating
all incoming receipts as proposed in this rule, USCIS will not be
able to keep up with demand and backlogs are likely to rematerialize
despite the funds provided for clearing those requests on hand.
[GRAPHIC] [TIFF OMITTED] TP04JA23.014

a. General Expenses
In the USCIS cost projections, GE represent all costs that are not
related to pay or benefits of employees. USCIS estimates that its GE
budget must increase by $335.8 million (22.9 percent) from $1,467.0
million in FY 2021 to a combined average of $1,802.9 million in the FY
2022/2023 fee review cost projections. Excluding contingency funding,
USCIS projects the GE budget must increase from $1,258.0 million in

[[Page 429]]

FY 2021 to $1,592.7 million in FY 2022/2023, or 26.6 percent. This
increase in GE is primarily the result of the planned reversal of
reductions made in FY 2020 and FY 2021 due to the COVID-19 pandemic.
These reductions were necessary at the time to preserve the financial
stability of USCIS, but some of them must be reversed to ensure that
USCIS can adequately perform the adjudication and naturalization
services that it is statutorily charged to administer. Notable examples
of increases in the GE budget from FY 2021 to the FY 2022/2023 fee
review average are projected to occur for these directorates and
programs:
SCOPS contractor support is projected to increase $41
million (386.4 percent) above the FY 2021 level. The funding for SCOPS
contractor support would revert close to the level projected in the FY
2016/2017 fee rule because the FY 2021 level had been reduced due to
funding constraints associated with the COVID-19 pandemic.
GE is projected to increase by $35 million to support
increased refugee processing associated with a proposed increase to the
refugee ceiling.
Immigration Records and Identity Services (IRIS) is
projected to have additional FY 2022/2023 Federal Bureau of
Investigation (FBI) fingerprint and background check service costs of
$16.7 million based on FBI fees and workload estimates.
In addition to the restoration of $13 million for
Application Support Center (ASC) contract support, costs increase as
USCIS restores ASC capacity following the COVID-19 pandemic. USCIS
temporarily suspended in-person services between March 18, 2020 until
June 4, 2020.\69\ ASC appointments that were cancelled due to the
temporary office closure were rescheduled causing some individuals to
experience significant processing delays. To reduce costs, the annual
contract was deferred to nine months. The remaining three months were
added to the 12-month optional period to resume in FY 2022.
---------------------------------------------------------------------------

\69\ USCIS temporarily suspended in-person office services to
help slow the spread of COVID-19 and ensure the safety of our staff
and communities. These temporary closures and capacity limitations
led to a substantial backlog of cases awaiting biometrics
appointments. USCIS has since extended operating hours at high-
volume ASCs and adjusted biometrics submission requirements for
certain applicants to address the backlogs. See USCIS, USCIS
Temporarily Closing Offices to the Public March 18-April 1, https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-to-the-public-march-18-april-1 (last updated Mar. 17, 2020); see also
USCIS, USCIS Preparing to Resume Public Services on June 4, https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4 (last updated Sept. 16, 2001). At the date of
publication of this proposed rule, ASC backlogs have mostly been
eliminated.
---------------------------------------------------------------------------

The Office of the Chief Information Officer's GE budget is
projected to increase by $35.3 million (16 percent) to support the
USCIS staffing requirements in the FY 2022/2023 fee review. The
additional funding is required to provide IT support, equipment, and
network services. This excludes projects funded from premium
processing. As stated earlier, non-premium IEFA cost projections are
the basis for the fee review budget.
The budget includes an increase of $9.8 million at the
National Records Center (NRC) to reduce the Freedom of Information Act
(FOIA) backlog at the NRC in FY 2022/2023. DHS has requested
appropriations to fund this additional spending. If USCIS receives
appropriations, USCIS may be able to revise downward the cost
projections funded by IEFA fees.
b. Payroll
USCIS projects that it must increase its IEFA non-premium pay
budget by $1,038.6 million (45 percent) from $2,309.3 million in FY
2021 to $3,347.9 million in the FY 2022/2023 fee review period to meet
its operational requirements. The payroll growth includes:
Pay and benefit adjustments for onboard staff: $313.1
million. USCIS budget projections include increased costs associated
with the Government-wide cost of living adjustment (COLA) assumption of
2.7 percent for FY 2022 and 1.6 percent for FY 2023.\70\
---------------------------------------------------------------------------

\70\ The FY 2022 COLA assumption is based on President Biden's
``Letter to the Speaker of the House and the President of the Senate
on the Alternative Plan for Pay Adjustments for Civilian Federal
Employment'', issued on August 27, 2021. See White House, ``Letter
to the Speaker of the House and the President of the Senate on the
Alternative Plan for Pay Adjustments for Civilian Federal
Employees'' (Aug. 27, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/27/letter-to-the-speaker-of-the-house-and-the-president-of-the-senate-on-the-alternative-plan-for-pay-adjustments-for-civilian-federal-employees/. The FY 2023 COLA
assumption is based on the available DHS Resource Allocation Plan
(RAP) guidance as of March 29, 2021.
---------------------------------------------------------------------------

Pay and benefits for new staff: $590.0 million. Projected
FY 2022 and FY 2023 workloads exceed current workload capacity by 10.2
percent, thereby requiring additional staff. The FY 2022 and FY 2023
Staffing Allocation Models (SAMs) \71\ estimated an additional 1,921
positions are necessary to meet adjudicative processing goals and other
USCIS mission objectives, including administrative functions. This
additional staffing requirement reflects the fact that it takes USCIS
longer to adjudicate many workloads than was planned for in the FY
2016/2017 fee rule and that workload volumes and operational needs have
grown. See section V.B. for information on how workload and completion
rates affect staffing forecasts. Outside of the SAMs, USCIS has
identified the need for another 2,035 new positions to accommodate the
Asylum Processing interim final rule (IFR) and the proposed increase in
the refugee admissions ceiling to 125,000. See section V.2.c. of this
preamble for more information on how the Asylum Processing IFR, 87 FR
18078 (Mar. 29, 2022), and other rulemakings affect the fee review
budget.\72\
---------------------------------------------------------------------------

\71\ The SAMs are SAS-based workforce planning tools that
estimate the staffing requirements necessary to adjudicate the
projected volume of workload receipts (in other words, applications
and petitions).
\72\ On March 29, 2022, DHS and DOJ issued an interim final
rule, Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
Officers (Asylum Processing IFR), to improve and expedite processing
of asylum claims made by noncitizens subject to expedited removal,
ensuring that those who are eligible for protection are granted
protection quickly, and those who are not are promptly removed. The
rule authorizes asylum officers within USCIS to consider the asylum
applications of individuals subject to expedited removal who assert
a fear of persecution or torture and pass the required credible fear
screening. See 87 FR 18078.
---------------------------------------------------------------------------

Realignment of 1,157 positions into the non-premium IEFA
budget: $135.5 million. This realignment includes moving 1,127
positions from IEFA premium processing funding ($129.8 million) and 30
positions that were previously funded by appropriated funds for the E-
Verify program ($5.7 million) to IEFA non-premium funding. The 1,127
positions were temporarily funded out of the premium processing budget
in the FY 2021 OP due to financial constraints. Funding these positions
with IEFA non-premium resources will allow USCIS to redirect premium
processing funds to infrastructure improvements, including investments
in USCIS' digital capabilities, as well as backlog reduction efforts.
USCIS is also realigning 30 positions from appropriated E-Verify
program funding to IEFA non-premium funding to reflect the appropriate
distribution of positions as identified in the Verification Division
SAM. The SAM identified that the 30 positions are better attributed to
the SAVE program, which is funded with IEFA non-premium funds.
Therefore, USCIS accounts for these 30 positions as increased IEFA non-
premium costs.

[[Page 430]]

c. Related Rulemakings
As stated elsewhere in this preamble with regard to the premium
processing rule and the DACA NPRM, simultaneously with this rule, DHS
is engaging in multiple rulemaking actions that are in various stages
of development.\73\ See 86 FR 53736. DHS has considered and analyzed
each of these other rules for peripheral, overlapping, or interrelated
effects on this rule and has incorporated their effects, if any, into
the supporting documentation, fee calculations, policies, and
regulatory text for this proposed rule.
---------------------------------------------------------------------------

\73\ See Spring 2022 Unified Agenda of Regulatory and
Deregulatory Actions, Agency Rule List-Spring 2022, Department of
Homeland Security at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600 (last accessed July 26,
2022).
---------------------------------------------------------------------------

DHS is proposing changes to the USCIS fee schedule in this rule
that may be necessary to implement the rule titled ``Procedures for
Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers.'' See 87 FR
18078 (Mar. 29, 2022) (Asylum Processing IFR). In the Asylum Processing
IFR, DOJ and DHS amended the regulations governing the determination of
certain protection claims raised by individuals subject to expedited
removal and found to have a credible fear of persecution or torture.
The changes are expected to improve the Departments' ability to
consider the protection claims of individuals encountered at or near
the border and placed into expedited removal more promptly while
ensuring fundamental fairness.
DHS includes an estimated cost of the Asylum Processing IFR in our
calculation of the proposed fees to recover full costs of USCIS
implementation of the rule. Consistent with the reasoning described in
the Asylum Processing IFR, DHS has used the primary estimate of annual
costs in the model used to calculate the fees in this rule.\74\ Use of
this figure results in costs of an average $425.9 million per fiscal
year during the biennial period.\75\ This funding, which is reflected
in the figures above, would support 2,035 new staff and associated GE.
These expenses constitute approximately 31 percent of the total
projected increase in budgetary requirements from FY 2021 to FY 2022/
2023.
---------------------------------------------------------------------------

\74\ See 87 FR 18078 (Mar. 29, 2022), at 18206.
\75\ DHS acknowledges that, by using the middle of the range of
costs, if actual costs are higher than that, then the USCIS fee
schedule will be set at a level that is less than what will be
required to recover all of the costs added by the Asylum Processing
IFR, all other factors remaining the same. Estimated annual costs of
the Asylum Processing IFR (mid-range estimate): FY 2022 total costs
of $438.2 million plus FY 2023 total costs of $413.6 million equals
$851.8. See 86 FR 46933-46934. Average total costs of FY 2022/2023
equal $425.9 million.
---------------------------------------------------------------------------

DHS proposes to include the middle of the three Asylum Processing
IFR estimates to plan for these additional staff and other resources.
Implementation of this rulemaking is subject to resource constraints,
including available IEFA non-premium funding and revenue. When USCIS
does not have the resources that it needs to meet its goals, processing
times increase and the case processing backlog grows. USCIS evaluates
its budget and revenue for operational purposes annually, separate from
the fee review process. For example, as mentioned above, the OP is a
budget for the current year and is separate from the fee review budget
estimates for future years. If actual revenue in FY 2022 or FY 2023 is
higher than the estimates included in this proposal, then USCIS may
dedicate additional staff and resources to the Asylum Processing IFR.
If actual revenue is lower than the estimates in this proposal, then
USCIS may dedicate fewer resources to implementing the Asylum
Processing IFR. Relatedly, if the ultimate costs of implementing the
Asylum Processing IFR exceed the estimates included in this proposal,
this will strain the resources available to USCIS and processing
backlogs may grow. Future fee review budget estimates will consider
current and planned DHS and USCIS policies.
If USCIS identifies alternative funding mechanisms or resources for
the Asylum Processing IFR other than IEFA non-premium funds, the fee
review budget projections may be reduced accordingly. Therefore, with
the implementation realities of the Asylum Processing IFR and possible
congressional appropriations to fund that rule, DHS may reduce USCIS'
estimated resource requirements for FY 2022/2023 and the fees necessary
to generate those resources in a final fee rule.
d. Cost Summary
Table 5 below is a crosswalk summary of the FY 2021 OP to the FY
2022 and FY 2023 cost projections. It accounts for payroll and non-
payroll for on-board and new staff, other resource requirements or
adjustments, and the removal of costs associated with temporary
programs. The FY 2022/2023 IEFA non-premium average annual budget
requirement is estimated to be $5,150.7 million. This represents a
$1,374.4 million, or 36.4 percent, increase over the FY 2021 IEFA non-
premium budget of $3,776.3 million. As previously discussed, the
primary cost driver is payroll, which accounts for 76 percent of the
increase.

[[Page 431]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.015

3. FY 2022/2023 Revenue Projections
USCIS' revenue projections are informed by internal immigration
benefit request receipt forecasts agreed to by the USCIS Volume
Projection Committee (VPC). See section V.B.1.a of this preamble for
more information on the VPC.\76\ USCIS also uses 12 months of
historical actual fee-paying receipts to account for fee-waiver and
fee-exemption trends. To project USCIS IEFA non-premium revenue, USCIS
develops application volume projections using all available data. USCIS
then considers the fee-paying rate for each application and petition
type to reflect the fact that not all applicants and petitioners pay
fees due to fee waivers and fee exemptions. USCIS uses actual revenue
collections from August 2019 to July 2020 as a basis for the fee-paying
assumptions in the FY 2022/2023 revenue projections. See section V.B.1
of this preamble for a more detailed discussion of USCIS volume
projections and fee-paying rates.
---------------------------------------------------------------------------

\76\ USCIS has developed the VPC, a panel of agency experts, for
systematic immigration benefit request filing volume forecasting for
use in fee studies. USCIS has considered other business forecasting
and structured forecasting approaches and models but has found that
the VPC has a reliably accurate history of filing volume prediction.
Two annual VPC meetings consider draft and final volume projections
for several years ahead. One of three annual VPC meetings reviews
the forecasts for the previous year, compares them to actual
receipts, and discusses future improvements for greater accuracy.
---------------------------------------------------------------------------

USCIS' current fee schedule is expected to yield $3.28 billion of
average annual revenue during the FY 2022/2023 biennial period. This
represents an increase of $0.80 billion, or 32 percent, from the FY
2016/2017 fee rule projection of $2.48 billion. See 81 FR 26911 (May 4,
2016). The projected revenue increase is based on the fees established
by the FY 2016/2017 fee rule and more anticipated fee-paying receipts.
The FY 2016/2017 fee rule forecasted 5,870,989 total workload receipts
and 5,140,415 fee-paying receipts. See 81 FR 26923-26924. However, the
FY 2022/2023 fee review forecasts 7,601,200 total workload receipts and
6,510,442 fee-paying receipts. See section V.B.1. of this preamble for
more information on the workload and fee-paying receipt forecasts. This
represents a 29 percent increase to workload and 26 percent increase to
fee-paying receipt volume assumptions. Despite the increase in
projected revenue above the FY 2016/2017 fee rule projection, this
additional revenue is projected to be insufficient to recover USCIS'
increased costs, as discussed in the next section.
4. Projected Cost Revenue Differential
USCIS identifies the difference between anticipated costs and
revenue, assuming no changes in fees, to determine whether the existing
fee schedule is sufficient to recover the projected full cost of
providing immigration adjudication and naturalization services or
whether a fee adjustment is necessary. Table 6 summarizes the projected
cost and revenue differential. Non-Premium Revenue represents a revenue
forecast using the current fees. Non-Premium Cost represents a budget
forecast. In any fee review, if the revenue forecast is less than the
budget forecast, then USCIS may propose new or increased fees to cover
the budget-revenue shortfall. Otherwise, USCIS may reduce certain costs
or services to cover the difference. Summary values may vary due to
rounding.

[[Page 432]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.016

Historically, and for the purpose of the fee review, USCIS reports
costs and revenue as an average over the 2-year period. In Table 6,
USCIS averages FY 2022 and FY 2023 costs and revenue to determine the
projected amounts to be recovered through this rule. Based on current
immigration benefit and biometric services fees and projected volumes,
USCIS expects that if fees remained at their current levels, those fees
would generate $3.28 billion in average annual revenue in FY 2022 and
FY 2023. For the same period, the average annual cost of processing
those immigration benefit requests and providing biometric services is
$5.15 billion. This yields an average annual deficit of $1,868.2
million. In other words, USCIS expects the costs of fulfilling its
operation requirements in FY 2022/2023 will exceed projected total
revenue under its current fee structure.
Because projected costs are higher than projected revenue, USCIS
has several options to address the shortfall:

1. Reduce projected costs;
2. Use carryover funds or revenue from the recovery of prior
year obligations; or
3. Adjust fees with notice-and-comment rulemaking.

Although USCIS continues to pursue efforts to increase agency
efficiency, DHS believes that reducing the projected costs to equal the
projected revenue would degrade USCIS operations funded by the IEFA;
therefore, this is not a viable alternative to the proposed rule. The
projected amount of funding necessary to meet USCIS' operational
requirements would exceed USCIS' projected carryover in both FY 2022
and FY 2023, so USCIS is not able to rely on those funds to cover the
difference between projected revenue and costs.\77\ Likewise, USCIS
estimates that recovered revenue from prior year obligations will be
insufficient. USCIS estimates that it may recover $91.9 million in FY
2022 and $94.2 million in FY 2023 for the non-premium IEFA. Therefore,
DHS proposes to increase revenue through the fee adjustments described
in detail throughout this rule. To the extent USCIS is successful in
measurably reducing completion rates or achieving other productivity
gains, DHS will re-evaluate the fee schedule in subsequent fee rules.
---------------------------------------------------------------------------

\77\ In the docket for this proposed rule, the supporting
documentation has more information on carryover estimates. See the
section titled IEFA Non-Premium Carryover Projections and Targets.
---------------------------------------------------------------------------

B. Methodology

When conducting a fee review, USCIS reviews its recent operating
environment to determine the appropriate method to assign costs to
immigration benefit requests, including biometric services. USCIS uses
ABC, a business management tool that assigns resource costs to
operational activities and then to products, services, or both. USCIS
uses commercially available ABC software to create financial models.
These models determine the cost of each major step toward processing
immigration benefit requests and providing biometric services. This is
the same methodology that USCIS used in the last five fee reviews, and
it is the basis for the current fee structure. Following the FY 2016/
2017 fee rule, USCIS identified several key methodology changes to
improve the accuracy of its ABC model. For more information on these
changes, please refer to the Changes Implemented in the FY 2022/2023
Fee Review section of the supporting documentation located in the
docket of this rule.
1. Volume
USCIS uses two types of volume data in the fee review: workload and
fee-paying volume. Workload volume is a projection of the total number
of immigration benefit requests that USCIS will receive in a fiscal
year. Fee-paying volume is a projection of the number of customers that
will pay a fee when filing requests for immigration benefits. Not all
customers pay a fee. Those customers to whom a fee exemption applies or
for whom USCIS grants a fee waiver are represented in the workload
volume, but not the fee-paying volume. Customers who pay a fee fund the
cost of processing requests for fee-waived or fee-exempt immigration
benefit requests. Tables 7 and 8 compare the FY 2016/2017 fee rule
volume forecasts to the volume forecasts for this rulemaking similar to
previous fee rules. See e.g., 81 FR 26922-26924. Actual receipts from
prior years inform those forecasts, but they may not be the only reason
for differences. We explain some of the larger differences in the
paragraphs that follow Tables 7 and 8. For information on actual
receipts from previous fiscal years, see Appendix Table 13 in the
supporting documentation.
---------------------------------------------------------------------------

\78\ DHS has considered the effects on this rule of all
intervening legislation, related rulemakings, and policy changes
that USCIS knows have occurred or will occur by the time the rule is
signed. However, DHS does not and cannot assert that it knows and
has considered every policy change that is planned or that may occur
at all levels and agencies of the U.S. Government that may directly
or indirectly affect this rule. Immigration policy changes
frequently and USCIS must use the best cost data available at a
point in time. Initiatives may come about without being incorporated
in the proposed and final fees simply due to the time required for
rule development and finalization. That necessary shortcoming is
ameliorated by the CFO Act requirement that DHS address the effects
of the constantly evolving immigration policy environment on its
fees, costs, and services every 2 years, as DHS has done through its
biennial fee reviews.
---------------------------------------------------------------------------

a. Workload Volume and Volume Projection Committee
USCIS uses statistical modeling, immigration receipt data, and
internal assessments of future developments (such as planned
immigration policy initiatives) \78\to develop workload volume
projections. All relevant USCIS directorates and program offices are
represented on the VPC. The VPC forecasts USCIS workload volume using
statistical forecasts and subject-matter expertise from various
directorates and program offices, including the service centers,
National Benefits Center, RAIO, and regional, district, and field
offices. Input from these offices helps refine the

[[Page 433]]

statistical volume projections. The VPC reviews short- and long-term
volume trends. In most cases, time series models provide volume
projections by form type. Time series models use historical receipt
data to determine patterns (such as level, trend, and seasonality) or
correlations with historical events to forecast receipts. When
possible, other, more detailed models are also used to determine
relationships within and between different benefit request types. At
VPC meetings, the committee members deliberate on the provided
forecast, consider alternatives, and agree to a forecast by group
consensus. Workload volume is a key element used to determine the USCIS
resources needed to process benefit requests within established
adjudicative processing goals. It is also the primary cost driver for
assigning activity costs to immigration benefits and biometric services
\79\ in the USCIS ABC model. Previous fee reviews also relied on VPC
forecasts.\80\ DHS explains some of the larger differences in the
paragraphs after Table 7. Values below are the average of 2 years,
rounded to whole numbers. There may be slight differences because of
rounding.
---------------------------------------------------------------------------

\79\ As fully explained later in this preamble, DHS is removing
biometric services as a separate fee in this rule, except as
associated with an Application for Temporary Protected Status and
certain other programs. Accordingly, N/A is included in the average
annual FY 2022/2023 projected workload receipts and difference
columns for biometrics in Table 7.
\80\ The FY 2010/2011 fee rule was the first to use VPC workload
estimates in a fee review. See, USCIS, FY 2010/2011 Immigration and
Examinations Fee Account Fee Review (June 11, 2010), available at
https://www.regulations.gov/document/USCIS-2009-0033-0007. All
subsequent fee reviews and fee rules used VPC estimates.
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 434]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.017

[[Page 435]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.018

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

\81\ Combines both Forms I-526 and I-526E. USCIS revised Form I-
526 and created Form I-526E as a result of the EB-5 Reform and
Integrity Act of 2022.

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

[[Page 436]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.019

[[Page 437]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.020

BILLING CODE 9111-97-C
Differences between the two sets of workload estimates may be
unrelated to any proposed fee or policy change. As mentioned earlier,
these estimates are based on historical data, statistical analysis, and
subject matter and policy input. For example, the Form I-90 forecast
consists of two combined forecasts: renewals and replacements. Both
Form I-90 forecasts use a time series model that allows for
seasonality. As another example, the VPC establishes two Form N-400
forecasts: civilian and military. The statistical model that the VPC
considers for the civilian Form N-400 forecast leverages survival
analysis to include individual microdata and reflects the differences
in application patterns of previous naturalization applicants. USCIS'
statistical model uses multiple factors to determine the likelihood of
naturalization of members of the pool of potential applicants,
including the length of time an individual has been a lawful permanent
resident (LPR), as well as an individual's country of origin, visa
type, and age. In contrast, the military naturalization forecast is a
time series model that does not use survival analysis. USCIS evaluates
a variety of models and methods to determine the best forecast for each
workload based on the available data and historical trends.
Some differences in workload are the result of proposed changes, in
whole or in part. Part of the large differences for Forms I-131 and I-
765 relate to a proposed change to Form I-485 fees and interim
benefits. See section VIII.H.1 for more information. In the FY 2016/
2017 fee review, USCIS determined the workload volume for Forms I-765
and I-131 that are not associated with Forms I-485 (in other words,
interim benefits). See 81 FR 26918 and 73300. The FY 2016/2017 column
in Table 7 represents only the standalone workload for Forms I-131 and
I-765 because all the interim benefit workloads bundled with Form I-485
are counted in the row for Form I-485. The FY 2022/2023 column of Table
7 includes workloads for Forms I-131 and I-765 that are either
standalone or interim benefits concurrently filed with Form I-485.
Other factors contributed to

[[Page 438]]

the differences, such as historical trends. There is no biometric
services workload forecast for FY 2022/2023 (apart from the TPS
workload, as discussed in section E.2 below) because of the proposal to
incorporate the cost of providing biometric services in the underlying
form fees, as explained in section VIII.E of this preamble.
A comparison of the two sets of forecasts, in isolation, may not
illustrate USCIS trends in the several years between fee reviews. For
example, when USCIS estimated workload for the FY 2016/2017 fee rule,
it had been several years since receipts for Form I-140 were over
100,000. As such, the receipt estimate was reasonable at the time and
consistent with receipts from FY 2009 to 2014. Since FY 2015, Form I-
140 receipts are routinely over 100,000. There could be a number of
reasons for this change, such as availability of employment-based visas
or increased demand following economic or policy changes in the
intervening years. As another example, filing trends for Form I-539
have changed significantly since the FY 2016/2017 fee rule. The
forecast for FY 2022/2023 is based on Student and Exchange Visitor
Information System data, which included 225,000 Form I-539 filings
annually beginning in January 2021. DHS expects the vast majority of
this workload to be optional practical training (OPT) and science,
technology, engineering, and mathematics optional practical training
(STEM OPT) extensions. As yet another example, the adoption workload
has been trending downward for many years. Comparing only two data
points in Table 7 does not show that the difference is just the
continuation of a gradual trend over many years. Finally, Table 7 does
not represent the entirety of USCIS workload. It excludes some
workloads without fees. For example, asylum and refugee workloads
(credible fear, reasonable fear, Forms I-589 and I-590) and other
humanitarian workloads (for example, Forms I-914 and I-918) are
excluded from the tables 7 and 8. These omitted workloads are part of
the ABC model so that USCIS can estimate their total cost. However,
only fee-paying volumes generate revenue for USCIS. See section III.C,
Full Cost Recovery, of this preamble for more information. As explained
later in this preamble, the proposed fees exclude temporary or
uncertain workloads, such as TPS and DACA. See sections V.C. and V.D of
this preamble.
b. Fee-Paying Volume
USCIS uses historical revenue and receipt data to determine the
number of individuals who paid a fee for each immigration or
naturalization benefit request. Fee-paying percentages by form are
usually steady year over year. USCIS uses monthly fee-paying
percentages in its forecasts to capture seasonality during the year.
Additionally, policy changes, legislation, and executive orders are
frequently some of the factors that affect fee-paying percentages, so
older historical data to calculate the percentages can be counter-
productive. In this proposed rule, USCIS therefore referenced revenue
and receipts data from August 2019 to July 2020 for fee-paying figures.
Total revenue for an immigration benefit request is divided by its fee
to determine the historical number of fee-paying immigration benefit
requests. Fee-paying receipts are compared to the total number of
receipts (workload volume) to determine a fee-paying percentage for
each immigration benefit request. When appropriate, projected fee-
paying volume is adjusted to reflect filing trends and anticipated
policy changes. These projections include the effects of changes that
DHS is proposing in this rule.\82\ DHS explains some of the larger
differences in the paragraphs after Table 8. Values below are the
average of two years, rounded to whole numbers. There may be slight
differences because of rounding.
---------------------------------------------------------------------------

\82\ Table 8 compares the projections from the FY 2016/2017 fee
rule with the projections of the FY 2022/2023 fee review. As
discussed, these projections are based on a number of factors,
including historical data of actual receipts. Although the FY 2016/
2017 Fee Review differs to some degree from the actual receipts
since the 2016 fee rule, USCIS compares fee projections against each
other, rather than against actual receipts, to ensure consistency.
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 439]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.021

[[Page 440]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.022

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

\83\ Combines both Forms I-526 and I-526E. USCIS revised Form I-
526 and created Form I-526E as a result of the EB-5 Reform and
Integrity Act of 2022.

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

[[Page 441]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.023

[[Page 442]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.024

All fee-paying workload is a subset of total workload, as discussed
in the previous section. As such, changes to workload may affect the
fee-paying projections. As explained above, USCIS estimates fee-paying
receipts by applying a percentage of fee-paying receipts to the
workload forecast. For a general explanation on how fee-paying volumes
affect fees, see section VI, Fee Waivers, of this preamble. Some
differences in fee-paying projections are the result of proposed
changes, in whole or in part. For example, part of the large
differences between the past and current projections for Forms I-131
and I-765 relate to the proposed change to Form I-485 fees and interim
benefits. See section VIII.H.1 for more information. In the FY 2016/
2017 fee review, USCIS determined the fee-paying volume for Forms I-765
and I-131 that are not associated with Forms I-485. See 81 FR 26918 and
73300. The FY 2016/2017 column in Table 8 represents the forecasted
standalone fee-paying receipts only for Forms I-131 and I-765 because
all interim benefit fee-paying receipts bundled with Form I-485 are
counted in the row for Form I-485. See 81 FR 26919 and 26924. The FY
2022/2023 column of Table 8 includes fee-paying receipts for Forms I-
131 and I-765 that are either standalone or interim benefits
concurrently filed with Form I-485. Other factors contributed to the
differences, such as historical trends. There is no workload forecast
for biometric services for FY 2022/2023 because of the proposed
elimination of the discrete biometric services fee for most benefit
requestors, as explained in section VIII.E of this preamble.
Table 9 is a comparison of fee-paying percentages in the FY 2016/
2017 fee rule and this proposed rule. It divides the fee-paying volumes
in Table 8 by the workload volumes in Table 7 to calculate the fee-
paying percentages. There may be slight differences because of
rounding.

[[Page 443]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.025

[[Page 444]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.026

[[Page 445]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.027

[[Page 446]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.028

2. Completion Rates
USCIS completion rates are the average hours per adjudication of an
immigration benefit request. They identify the adjudicative time
required to complete (render a decision on) specific immigration
benefit requests. The completion rate for each benefit type represents
an average. Completion rates reflect what is termed ``touch time,'' or
the time an employee with adjudicative responsibilities actually
handles the case. This does not reflect ``queue time,'' or time spent
waiting, for example, for additional evidence or supervisory approval.
Completion rates do not reflect the total processing time applicants,
petitioners, and requestors can expect to wait for a decision on their
case after USCIS accepts it.
USCIS requires most employees who adjudicate immigration benefit
requests to report adjudication hours and case completions by benefit
type. The reported hours and counts are aggregate information that does
not allow USCIS to estimate effects of individual policy changes. USCIS
calculates completion rates by dividing the adjudication hours by the
number of completions for the same period. As such, completion rates
represent an average hours per completion. In addition to using these
data to determine fees, completion rates help determine appropriate
staffing allocations to handle projected workload. The USCIS Office of
Performance and Quality (OPQ), field offices, regional management, and
service centers continually review the data to capture updates or
implementation of new processes and ensure continued accuracy. The
continual availability of the information enables USCIS to update cost
information for each fee review. The completion rates may change
between fee reviews based on more recently reported hours and counts.
Possible reasons for completion rate changes include changes to a form,
policy changes, and more recently, effects of the pandemic. USCIS
relied on completion rates before the pandemic to remove this effect
from the fee review. When employees who adjudicate immigration benefit
requests do not report adjudication hours, USCIS uses subject-matter
expertise to estimate completion rates.
USCIS does not list completion rates for the following immigration
benefit requests, forms, or other services, due to the special nature
of their processing, as explained below:
I-131A, Application for Carrier Documentation. In this
proposed rule, DHS anticipates that the Department of State (DOS)
Bureau of Consular Affairs, located outside of the United States, would
process all Form I-131A workload. Thus, USCIS projects it will have no
hours or workload for Form I-131A in FY 2022/2023 and does not
calculate a completion rate for this proposed rule.
H-1B Registration Process. Before a petitioner is eligible
to file an H-1B cap-subject petition (including those eligible for the
20,000-petition advanced degree exemption), the prospective petitioner
must register electronically through the USCIS website and have their
registration selected. See 84 FR 888 (Jan. 31, 2019). USCIS does not
adjudicate registrations received through the H-1B registration process
because the process is automated.
USCIS Immigrant Fee. USCIS does not adjudicate
applications for an immigrant visa. Rather, individuals located outside
of the United States apply with a DOS consular officer for an

[[Page 447]]

immigrant visa. If DOS issues the immigrant visa, the individual may
apply with a Customs and Border Protection (CBP) officer at a port of
entry for admission to the United States as an immigrant. This fee
represents USCIS' costs to create and maintain files and to issue
permanent resident cards (also known as ``Green Cards'') to individuals
who go through this process. See 8 CFR 103.7(b)(1)(i)(D) (Oct. 1,
2020), proposed 8 CFR 106.2(c)(3).
TPS. DHS proposes not to rely on TPS fee revenue for
recovering USCIS' operational expenses, consistent with previous fee
rules. See 81 FR 73312-73313. TPS designations may be terminated under
current law or may decrease due to a reduction in the eligible
population. Termination of the program, in whole or in part, after the
fees are set would result in unrealized revenue and a commensurate
budgetary shortfall. After the fee schedule is effective, fees cannot
be adjusted until the next fee schedule notice-and-comment rulemaking.
Thus, temporary programs subject to termination based on changed
circumstances are generally not included in the fee-setting model.
Therefore, USCIS excludes the completion rate, as well as workload
volumes and marginal costs, for Form I-821, Application for Temporary
Protected Status, and associated Form I-765 filings from discussion in
this proposed rule. DHS cannot increase the $50 initial statutory
registration fee permitted under INA sec. 244(c)(1)(B) or establish a
re-registration fee for TPS. Therefore, to recover some of the costs of
administering the TPS program, USCIS will continue to charge the
biometric services fee, where required, and the fee for an employment
authorization document (EAD), as permitted under 8 U.S.C. 1254b.

[[Page 448]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.029

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

\84\ See USCIS, Questions and Answers: Credible Fear Screening
available at https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening (last updated
July 15, 2015).
\85\ USCIS does not track distinct refugee travel document
completion rates, nor does it track rates by applicant age group.
The completion rate here is for a re-entry permit, a similar travel
document.

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

[[Page 449]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.030

[[Page 450]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.031

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

\86\ See USCIS, Questions and Answers: Reasonable Fear
Screening, available at https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-reasonable-fear-screenings
(last updated June 18, 2013).
---------------------------------------------------------------------------

BILLING CODE 9111-97-C
3. Assessing Proposed Fees
Historically, as a matter of policy, DHS has used its discretion to
limit fee increases for certain immigration benefit request fees that
would be overly burdensome on applicants, petitioners, and requestors
if set at ABC model output levels. Previous proposed IEFA fee schedules
referred to limited fee increases as ``low volume reallocation'' or
``cost reallocation.'' \87\ Despite the two separate phrases, the
calculation for both is the same. In this proposed rule, DHS will use
the phrase ``cost reallocation.'' In the FY 2016/2017 fee rule, USCIS
calculated an 8 percent limited fee increase for certain immigration
benefit request fees.\88\ For this proposed rule, USCIS calculated a
limited fee increase of approximately 18 percent using a similar
methodology as the FY 2016/2017 fee rule.\89\ The 18 percent is
approximately the difference between the average current fee compared
to the average ABC model output. The sum of the current fees,
multiplied by the projected FY 2022/2023 fee-paying receipts for each
immigration benefit type, divided by the total fee-paying receipts, is
$518. The model output is the total cost determined by the ABC model by
fee-paying receipts to determine a fee-paying unit cost. The sum of the
ABC model outputs, multiplied by the projected FY 2022/2023 receipts
for each immigration benefit type, divided by the fee-paying receipts,
is $614. There is a $96 or approximate 18 percent difference between
the two averages. These averages exclude fees that do not receive cost
reallocation, such as the separate biometric services fee and the
proposed genealogy fees. When DHS proposes to maintain the current fee,
it affects this calculation. In those cases, the formula multiplies the
current fee by fee-paying receipts instead of using the model output.
Except for Form I-90 filed online, the estimated volumes are low for
the fees that DHS proposes to maintain at the current level. As such,
if DHS did not propose to maintain those current fees, the result would
round to 17 percent. Thus, DHS has determined that 18 percent is a
reasonable figure at which to cap those requests for which USCIS
proposes to limit fee increases using the cost reallocation calculation
method.
---------------------------------------------------------------------------

\87\ The FY 2016/2017 proposed fee schedule used both phrases.
See 81 FR 26915. The FY 2010/2011 and FY 2008/2009 proposed fee
schedules used the phrase ``low volume reallocation.'' See 75 FR
33461 and 72 FR 4910, respectively.
\88\ The 8-percent increase was the percentage difference
between the current fees and the model output before reallocation,
weighted by fee-paying volume. See 81 FR 73296. The model output is
a projected fee-paying unit cost from the ABC model. It is projected
total cost divided by projected fee-paying receipts. While each fee
review may calculate a different percentage, the formula for the
calculation remains the same.
\89\ In the docket for this proposed rule, the supporting
documentation has more information on the proposed cost reallocation
and the ABC model output. See the Cost Reallocation column of
Appendix Table 4: Proposed Fees by Immigration Benefit Request. The
docket also includes documentation for the fee schedule.
---------------------------------------------------------------------------

Accordingly, in consideration of the need to balance the
beneficiary-pays and ability-to-pay principles and to achieve important
policy outcomes (for example, promoting naturalization, funding asylum
and other humanitarian programs, and making immigration benefits
affordable and accessible), DHS proposes that the increase in the
following immigration benefit request fees is limited to 18 percent for
the current fees:
Form I-192, Application for Advance Permission to Enter as
Nonimmigrant.
Form I-193, Application for Waiver of Passport and/or
Visa.
Form I-290B, Notice of Appeal or Motion.
Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant.
Form I-600, Petition to Classify Orphan as an Immediate
Relative.
Form I-600A, Application for Advance Processing of an
Orphan Petition.
Form I-600A/I-600, Supplement 3, Request for Action on
Approved Form I-600A/I-600.\90\
---------------------------------------------------------------------------

\90\ DHS explains the purpose of this proposed form in section
VIII.N.4 of this preamble.
---------------------------------------------------------------------------

Form I-612, Application for Waiver of the Foreign
Residence Requirement (Under Section 212(e) of the INA, as Amended).
Form I-800, Petition to Classify Convention Adoptee as an
Immediate Relative.
Form I-800A, Application for Determination of Suitability
to Adopt a Child from a Convention Country.
Form I-800A, Supplement 3, Request for Action on Approved
Form I-800A.
Form I-881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal.
Form I-929, Petition for Qualifying Family Member of a U-1
Nonimmigrant.
Form N-300, Application to File Declaration of Intention.
Form N-336, Request for Hearing on a Decision in
Naturalization Proceedings.
Form N-400, Application for Naturalization.
Form N-470, Application to Preserve Residence for
Naturalization Purposes.
Form N-600, Application for Certificate of Citizenship.
Form N-600K, Application for Citizenship and Issuance of
Certificate Under Section 322.
The proposed increase of approximately 18 percent may vary slightly
due to rounding. DHS rounds

[[Page 451]]

all IEFA non-premium fees to the nearest $5 increment.
For many of these form types, DHS and DOJ have a long history of
special consideration for these immigration and naturalization fees.
For example, DOJ did not change fees for Forms I-290B, I-360, N-300, N-
336, N-470 in the first IEFA fee rule that used ABC modeling. See 63 FR
1775 (Jan. 12, 1998) at 1784 (proposed rule); 63 FR 43604 (final rule).
DOJ maintained the prior fee for these forms until it could capture
sufficient information for these low (less than 10,000 per year) volume
forms to change the fees in a separate rulemaking. See 64 FR 69883
(Dec. 15, 1999). DHS has a history of setting adoption-related fees
lower than the amount suggested by the fee-setting methodology, as
discussed in section VIII.N.1 of this proposed rule. DHS also has a
long history of special consideration for naturalization fees, as
discussed in section VIII.F. of this preamble.
To allow the proposed fee schedule to recover full cost, DHS
proposes that other fees be increased to offset the difference between
the projected cost of adjudicating these benefit requests and the
revenue generated by the 18 percent limited fee increase. Similarly,
DHS proposes that other fees increase to offset a projected increase in
workloads that are exempt from paying fees or that are capped at a fee
less than what the ABC model indicates. In this proposed rule, DHS
refers to the process of recovering full cost for workloads without
fees or the shifting of cost burdens among benefit request fees due to
other policy considerations as cost reallocation.
DHS proposes to maintain the current fee for several benefit
requests. These proposed fees would have decreased based on the ABC
model results. However, DHS proposes to maintain the current fees. This
will allow these forms to fund some of the costs of other forms and may
limit the fee increase suggested by the fee calculation model for those
other forms. In this proposed rule, DHS proposes to not change the
following fees:
Form I-90, Application to Replace Permanent Resident Card
when filed online.
Form I-131A, Application for Travel Document (Carrier
Documentation).
Form I-191, Application for Relief Under Former Section
212(c) of the Immigration and Nationality Act (INA).
Form I-698, Application to Adjust Status from Temporary to
Permanent Resident (Under Section 245A of the INA).
Form N-565, Application for Replacement Naturalization/
Citizenship Document.
Some proposed fees are significantly higher than the current fees.
In some cases, this is because DHS proposes to not limit those fee
increases, as it has done in the past, for policy reasons, as explained
below. For example, previous fee schedules limited the increase for the
immigration benefit requests associated with Forms I-212, I-601, I-
601A, and I-765.\91\ See 81 FR 26915-26916. In the FY 2016/2017 fee
rule, DHS stopped limiting the fee increase for inadmissibility waivers
like Forms I-212 and I-601. See 81 FR 73306-73307. In addition, in this
proposed rule, DHS proposes not to limit the fee increase to 18 percent
for the following immigration benefit requests:
---------------------------------------------------------------------------

\91\ See section VIII.F, Naturalization and Citizenship-Related
Forms (discussion on the proposed naturalization fees).
---------------------------------------------------------------------------

Form I-601A, Provisional Unlawful Presence Waiver; and
Form I-765, Application for Employment Authorization.
DHS is not proposing to limit the fee increases for these two
immigration benefit requests because, if we did, then other proposed
fees would have to increase to recover full cost. For example, DHS
limited the fee increase for Form I-765 in the FY 2016/2017 fee rule
for humanitarian and practical reasons. See 81 FR 26916. Many
individuals seeking immigration benefits face financial obstacles and
cannot earn money through lawful employment in the United States until
they receive an EAD. In this rule, DHS proposes additional fee
exemptions instead of limiting the proposed fee for Form I-765. If DHS
were to propose limited fee increases for all of the immigration
benefit request fees that were limited in the FY 2016/2017 fee rule,
then some proposed fees could increase by as much as $2,855, with the
average of those changes being an increase of $79 per immigration
benefit request. The rationale for some of these proposed changes is
further discussed later in the preamble. See section VIII, Other
Proposed Changes in the FY 2022/2023 Fee Schedule.
Later in this preamble, DHS discusses the proposal for separate
online and paper filing fees. See section VIII.G. DHS bases the
proposed separate online and paper fees on ABC model results. When DHS
proposes limited fee increases or to continue using the current fee,
the calculation is based on the current fee instead of ABC model
results. As such, there are not separate proposed fees for online and
paper filing for immigration benefit requests with limited fee
increases or for those held to the current fee.
4. Funding the Asylum Program With Employer Petition Fees
DHS proposes a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, or Form I-140, Immigrant Petition for Alien Worker. Proposed 8
CFR 106.2(c)(13). DHS proposes this new fee as a way to mitigate the
scope of the proposed fee increases in this rule for individual
applicants and petitioners. DHS has determined that the Asylum Program
Fee is an effective way to shift some costs to requests that are
generally submitted by petitioners who have more ability to pay, as
opposed to shifting those costs to all other fee payers. DHS arrived at
the amount of the Asylum Program Fee by calculating the amount that
would need to be added to the fees for Form I-129, Petition for a
Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien
Worker, to collect the Asylum Processing IFR estimated annual
costs.\92\ See Table 11 for details on the calculation. The Asylum
Program Fee may be used to fund part of the costs of administering the
entire asylum program and would be due in addition to the fee those
petitioners would pay using USCIS' standard costing and fee calculation
methodologies.
---------------------------------------------------------------------------

\92\ DHS notes that in section V.A.2.c of this preamble it
identified the costs of the Asylum Processing IFR as averaging
$425.9 million annually over FY 2022/2023. That figure represents
the estimated costs that are directly attributable to the
implementation of that rule. DHS divided this cost estimate by the
estimated fee-paying volume for Forms I-129 and I-140 to determine
the $600 Asylum Program Fee. Calculation: $425,900,395/708,630 =
$601.02. DHS rounded to the nearest $5, consistent with other
proposed fees.
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 452]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.032

BILLING CODE 9111-97-C
This Asylum Program Fee adds a fee for Form I-129 and Form I-140
petitioners of $600 while maintaining lower proposed fees for other
immigration benefit requestors than would be proposed if the costs were
spread among all other fee payers. For example, charging the Asylum
Program Fee only to employer petitions reduces the proposed Form I-485
fee by $170 compared to a fee schedule without the cost shift.
Similarly, the proposed fee to file Form I-765 on paper is $70 less
than it would be absent the proposed Asylum Program Fee. The proposed
fees for Forms I-485, I-765, and others are lower in a scenario with
the shift of asylum program costs to employers through the new fee
because all IEFA non-premium fees are related. Each fee helps recover
the cost of work without fees (Forms I-589, I-590, I-914, I-918, etc.)
or work with fees that do not recover full cost (Forms N-400, I-600, I-
800, etc.). If Forms I-129 and I-140 recover more of those costs, then
that means other forms need not recover as much, resulting in lower
proposed fees for Forms I-485, I-765, and others that recover more than
full cost in this proposal. Table 12 shows the proposed IEFA non-
premium fees for Forms I-129 and I-140, including the Asylum Program
Fee. The table excludes additional statutory or premium-processing fees
that petitioners may pay for these immigration benefit requests.\93\
---------------------------------------------------------------------------

\93\ Most petitioners using Forms I-129 and I-140 may request
expedited processing for an additional $2,500 or $1,500 premium
processing fee. See USCIS, I-907, Request for Premium Processing
Service, https://www.uscis.gov/i-907 (last updated Sep. 30, 2021).
Certain H-1B and L petitions may have to pay up to $6,000 in
additional statutory fees, which DHS is unable to adjust. USCIS does
not keep most of the revenue of these fees. 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
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. 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 Feb. 20, 2018).

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

[[Page 453]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.034

BILLING CODE 9111-97-C
The proposed $600 Asylum Program Fee would apply to all fee-paying
receipts for Forms I-129, I-129CW, and I-140. For example, it would
apply to all initial petitions, changes of status, and extensions of
stay that use Form I-129.
DHS acknowledges that the scope of the proposed fee increases in
this rule is significant. DHS proposes this cost shifting approach with
the Asylum Program Fee to place greater emphasis on the ability-to-pay
principle for determining user fees. Petitioners for immigrant and
nonimmigrant workers generally are required to have the resources
necessary to pay the worker(s) for whom the petition is filed, and the
fees that the employer must pay USCIS to file a petition are not
significant compared to even a small \94\ petitioner's revenue and
profit. That determination is not changed by the proposed Asylum
Program Fee.
---------------------------------------------------------------------------

\94\ Small is defined by U.S. Small Business Administration
Guidelines. See Small Entity Analysis for the FY22/23 U.S.
Citizenship and Immigration Services Fee Schedule Proposed Rule in
Supporting Documents.
---------------------------------------------------------------------------

DHS considered proposing to transfer the costs of other
humanitarian programs, such as the T, U, VAWA, SIJ, and refugee
programs, to those who file benefit requests that may be able to better
afford to pay fees. DHS recognizes, however, that we have always spread
costs of free services that USCIS provides across all other fee-paying
requests in the past and we have never directly transferred the costs
of one program to another. See, e.g., 85 FR 46869 (stating, ``For the
fees that DHS does not limit, we use the total cost for each form to
reallocate the cost of limited fee increases or workload without
fees.''); 75 FR 58973 (Stating, ``To the extent not supported by
appropriations, the cost of providing free or reduced services must be
transferred to all other fee-paying applicants.''); 72 FR 29865
(stating, ``As with any other waiver, the loss of that fee revenue
would necessarily be spread across all other benefit applications and
petitions, having the potential to increase those fees.''). After
considering the impact on all of the fees calculated by the model, DHS
is proposing that the Asylum Program Fee for Forms I-129 and I-140 is
the appropriate place to shift some of the costs of the asylum.
DHS does not propose this Asylum Program Fee without having
carefully considered its implications and effects. DHS realizes that
some petitioners will object to funding the costs of USCIS-administered
programs to which they have no connection or from which they receive no
direct benefit. DHS is committed to reducing barriers and promoting
accessibility to immigration benefits, and knows that the beneficiaries
of Forms I-129 and I-140 fuel our economy, contribute to our arts,
culture, and government, and have helped the United States lead the
world in science, technology, and innovation. DHS is also aware that
Forms I-129 and I-140 are submitted by non-profit entities,
organizations performing research for government agencies, as well as
farms, small businesses, and individuals. DHS appreciates that non-
profit or small entities may not have the same level of financial
resources as many large, for-profit corporations that also submit
petitions for foreign workers. In our Small Entity Analysis (SEA) for
this proposed rule, we provide samples of the I-129 and I-140 forms,
and how the fees may impact the small entities with the Asylum Program
Fee. Within the SEA, DHS determined the average impacts to employers
who file a petition based on their total revenue and profits. For Form
I-129, approximately 90 percent of the small entities in the sample
experienced an economic impact of less than 1 percent of their reported
revenue. For Form I-140, approximately 98 percent of the small entities
in the sample experienced an economic impact of less than 1 percent of
their reported revenue. USCIS acknowledges that those small entities
with greater than 1 percent impact may file fewer petitions as a result
of this proposed rule. As previously indicated, the success of the
USCIS fee model and this rulemaking in generating the necessary revenue
depends on the filing volumes not falling short of those projected
herein. At the same time, USCIS is charged with administering the
asylum program using fee revenue and must make considered judgments
about how to fund it using available and appropriate means. Balancing
both of those goals, and

[[Page 454]]

considering the resources of the Form I-129 and I-140 filing
communities, DHS decided to propose this surcharge. DHS will re-
evaluate the Asylum Program Fee based on the status of the Asylum
Processing IFR and any funding appropriated for it when DHS develops
its final fee rule.

C. Exclusion of Temporary or Uncertain Programs

As stated in section V.B.1.b. of this preamble, the success of the
fees established by this rulemaking in providing the funding necessary
to sustain USCIS service levels depends on the projected volume of fee-
paying requests filed after this rule takes effect being at or near the
level projected. If a program is ended, is partially curtailed, or
substantially declines, USCIS is at risk of not achieving the projected
and necessary revenue. Therefore, USCIS excludes from the fee
calculation model the costs and revenue associated with programs that
are temporary by definition or where it is possible that the program
will diminish or cease to exist. This exclusion includes Form I-821,
Application for Temporary Protected Status, and Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, as well as the
Form I-765 filings and biometrics fees associated with both programs.
DHS excludes projected revenue from expiring or temporary programs
in setting the fees required to support baseline operations due to the
uncertainty associated with such programs. For example, the Secretary
may designate a foreign country for TPS due to conditions in the
country that temporarily prevent the country's nationals from returning
safely, or in certain circumstances where the country is temporarily
unable to adequately handle the return of its nationals. TPS, however,
is a temporary benefit, and TPS designations may be terminated. See INA
sec. 244(b)(3)(B), 8 U.S.C. 1254a(b)(3)(B). Likewise, DACA allows
certain individuals who meet specific guidelines to request
consideration of deferred action from USCIS for a specified period
unless terminated. DACA is an administrative exercise of enforcement
discretion and is implemented at the discretion of DHS, given that it
has insufficient resources to enforce the immigration laws against
every noncitizen without lawful immigration status. Because DACA is
temporary act of enforcement discretion and may be terminated, it is
excluded from this fee review, as discussed further in the next
section.
DHS excludes the costs and revenue associated with these programs
because program eligibility is subject to the discretion of the
Department. Because the future of these programs is difficult to
predict, as discussed later in this section, USCIS has excluded the
cost and workload of these programs from the fee review and does not
propose to allocate overhead and other fixed costs to these workload
volumes. This mitigates an unnecessary revenue risk. In other words, if
DHS established the USCIS fee schedule based on revenue from these
programs, and the eligible programs diminish or cease to exist, USCIS
will not realize the projected revenue and would not have enough
revenue to recover full cost of overhead and other fixed costs. USCIS
analyzes variable unit costs associated with processing these benefit
types and uses volume forecasts to exclude their costs from the fee
review budget and ABC model.
All fee revenue deposited into the IEFA is pooled and collectively
used to finance USCIS operations including DACA, TPS, and other
temporary programs. USCIS also responds to surges in customer demand
for services by realigning resources to cover the cost of processing.
Consequently, USCIS is capable of funding these programs even though
their costs are not included in the fee review budget or ABC model. By
excluding programs that are temporary by nature, DHS maintains the
integrity of the ABC model, better ensures recovery of full costs, and
mitigates revenue risk from unreliable sources. This approach is
consistent with prevailing guidance on the subject as stated by
Principle 6 of the Government Accountability Office (GAO) Greenbook,
Standards for Internal Control in the Federal Government (``The
Greenbook'').\95\ Principle 6 provides guidance on objectives and risks
and advises managers to determine the acceptable level of variation in
performance relative to the achievement of objectives. For example, in
FY 2020, there were 647,278 active DACA recipients. See 86 FR 53785.
DHS estimates that there will be 720,093 active DACA recipients in FY
2023.\96\ If DHS were to include the DACA renewals in the fee review,
it would be one of the larger populations. For example, in FY 2023,
USCIS estimates that 573,563 individuals will request either initial or
renewal DACA.\97\ However, on October 5, 2022, the U.S. Court of
Appeals for the Fifth Circuit affirmed, in part, a July 2021 decision
of the U.S. District Court for the Southern District of Texas declaring
the 2012 DACA policy unlawful, but remanded the case to the District
Court for further consideration of the recently published DACA final
rule.\98\ TPS volumes can vary significantly by fiscal year. In FY
2022, USCIS collected approximately $5.6 million in revenue for Form I-
821, and USCIS forecasts 626,770 receipts for Form I-821 in FY 2023.
Nevertheless, DHS cannot predict the disasters or crises that lead to
new TPS designations. DHS can reliably predict TPS renewals if existing
designations are not terminated; however, renewals are often on an 18-
month cycle that does not align with Federal fiscal years. Including
volume forecasts that are so variable by fiscal year may result in
inaccurate fee calculations, especially over a long term. As such, DHS
determined that including temporary or uncertain programs in the fee
structure would exceed an acceptable level of risk for the success of
this fee rule. Adding TPS and DACA costs, volumes, and revenue to the
fee review would lower the fee for Form I-765 if its fee is calculated
to recover full cost. However, if a certain country's TPS designation
is terminated or if DACA ceases, basing the Form I-765 fee on that
projected value leaves USCIS at a risk of not achieving projected
revenue and the objectives of this proposed rule. Thus, consistent with
four previous fee rules, DHS proposes to exclude from this rule the
costs and revenue from programs that are susceptible to large
reductions in filing volume.
---------------------------------------------------------------------------

\95\ The Green Book sets internal control standards for Federal
entities. Internal control is a process used by management to help
an entity achieve its objectives, run its operations efficiently and
effectively, report reliable information about its operations and
comply with applicable laws and regulations. See GAO, Standards for
Internal Control in the Federal Government (Sep. 10, 2014), https://www.gao.gov/products/gao-14-704g.
\96\ 87 FR 53275 (Aug. 30, 2022).
\97\ 87 FR 53277 (Aug. 30, 2022).
\98\ Texas v. United States, 50 F.4th 498 (5th Cir. 2022). The
Fifth Circuit, however, preserved the partial stay issued by the
district court in July 2021 (Texas v. United States, 549 F. Supp. 3d
572, 624 (S.D. Tex. 2021) while the case is on remand to the
District Court for further proceedings regarding the new DACA rule.
While the stay remains in place, current grants of DACA and related
Employment Authorization Documents are valid. USCIS will accept and
process renewal DACA requests but not process initial DACA requests.
---------------------------------------------------------------------------

D. Consideration of DACA Rulemaking

On August 30, 2022, DHS published a final rule, Deferred Action for
Childhood Arrivals, 87 FR 53152 (DACA rule). DHS has considered this
rule and the DACA rule's possible effects on each other when developing
this proposed rule. Because the specific costs and revenue associated
with DACA are not separately identified in this proposed rule, each
rule is

[[Page 455]]

independent and DHS estimates that the DACA rule will have no effects
on this rule or vice versa. The DACA rule interacts with this rule only
to the extent that the DACA rule established an $85 fee for Form I-821D
at 8 CFR 106.2(a)(38) and this rule proposes to move that fee to 8 CFR
106.2(a)(49).

E. Fee-Related Issues for Consideration

DHS identified a number of issues that do not affect the FY 2022/
2023 fee review but do merit some discussion. DHS does not propose any
changes related to the issues discussed in this section. USCIS may
discuss these issues in future biennial fee reviews or in conjunction
with other USCIS fee rules. To better inform this and future fee-
setting policies and rules, DHS welcomes comments on all facets of the
FY 2022/2023 fee review, this proposed rule, and USCIS fees in general,
regardless of whether changes have been proposed here.
1. Accommodating E-Filing and Form Flexibility
DHS attempts, as it did in the FY 2010/2011 fee rule, FY 2016/2017
fee rule, and the 2020 fee rule, to propose fees based on form titles
instead of form numbers to avoid prescribing fees in a manner that
could undermine the adoption by USCIS of electronic processing. See
proposed 8 CFR part 106. Form numbers are included for informational
purposes but are not intended to restrict the ability of USCIS to
collect a fee for a benefit request that falls within the parameters of
the adjudication for which the fee is published. DHS has worked for
over a decade to remove unnecessary administrative and procedural
provisions from title 8 of the CFR so as not to face restrictions such
as using a certain form number for a benefit request codified with the
force of law. As USCIS modernizes its processes and systems to allow
more applicants, petitioners, and requestors to file benefit requests
online, the agency may collect fees for immigration benefit requests
that do not have a form number or do not have the same form number as
described in regulations. This could occur, for example, if USCIS
developed an online version of a request that individuals often submit
with applications for employment authorization. In this situation,
USCIS may find it best to consolidate the two requests without
separately labeling the different sections related to the relevant form
numbers. DHS would still collect the required fee for the underlying
immigration benefit request as well as the request for employment
authorization, but the actual online request would not necessarily
contain form numbers corresponding to each separate request.
Similarly, USCIS may determine that efficiency would be improved by
breaking a paper form into separate paper forms. For instance, USCIS
could separate Form I-131, Application for Travel Document, into a
separate form and form number each for advance parole, humanitarian
parole, refugee travel documents, or re-entry permits. In this example,
USCIS could continue to charge the current Form I-131 fee for each
separate form. This structure permits USCIS to change forms more easily
without having to perform a new fee review each time the agency chooses
to do so.
2. Processing Time Outlook
As discussed in the Projected Cost and Revenue Differential section
of this preamble, USCIS anticipates having insufficient resources to
process its projected workload absent this fee rule. For FY 2022/2023,
USCIS estimates that backlogs will continue to grow in the absence of
additional resources. Although USCIS has implemented measures to reduce
the backlog as described in section IX.C., USCIS net processing
backlogs have grown from approximately 1.4 million cases in December
2016, when DHS last adjusted IEFA non-premium fees, to approximately
8.0 million cases at the end of September 2021.\99\ On top of these
pre-existing strains on USCIS, the COVID-19 pandemic constrained USCIS
adjudication capacity by limiting the ability of USCIS to schedule
normal volumes of interviews and biometrics appointments while
maintaining social distancing standards, contributing to the backlog.
Further, USCIS believes that the growing complexity of case
adjudications in past years, including prior increases in the number of
interviews required and request for evidence (RFE) volumes, has
contributed to higher completion rates and growing backlogs. See
section V.B.2, Completion Rates.
---------------------------------------------------------------------------

\99\ See USCIS, Number of Service wide Forms By Quarter, Form
Status, and Processing Time Fiscal Year 2021, Quarter 4, https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2021Q4.pdf (last visited Jan. 11, 2022).
---------------------------------------------------------------------------

USCIS is reviewing its adjudication and administrative policies to
find efficiencies, while strengthening the integrity of the immigration
system. This entails evaluating the utility of interview requirements,
biometrics submission requirements, RFEs, deference to previous
decisions, and other efforts that USCIS believes may, when implemented,
reduce the amount of adjudication officer time required, on average,
per case. Any improvements in these completion rates would, all else
equal, reduce the number of staff and financial resources USCIS
requires. Furthermore, USCIS is actively striving to use its existing
workforce more efficiently, by investigating ways to devote a greater
share of adjudication officer time to adjudications, rather than
administrative work. All else being equal, increasing the average share
of an officer's time spent on adjudication (that is, utilization rate)
would increase the number of adjudications completed per officer and
reduce USCIS' overall staffing and resource requirements. USCIS based
its fee review largely on existing data that do not presume the outcome
of these initiatives. USCIS cannot assume significant efficiency gains
in this rule, in advance of such efficiency gains being measurably
realized. Establishing more limited fees to account for estimated
future efficiency could result in a deficient funding, and USCIS would
not be able to meet its operational requirements. In contrast, if USCIS
ultimately receives the resources identified in this proposed rule and
subsequently achieves significant efficiency gains, this could result
in backlog reductions and shorter processing times. Those efficiency
improvements would then be considered in future fee reviews.
As explained in the FY 2022/2023 Cost Projections section of this
preamble, projected workloads for FY 2022 and FY 2023 exceed current
processing capacity. Therefore, USCIS requires additional resources and
staff to increase its processing capacity to match projected receipt
volumes and ensure that backlogs do not continue to grow. Through the
adjustments to the fee schedule proposed in this rule, USCIS expects to
collect sufficient fee revenue to fund additional staff who will
support the estimated FY 2022/2023 processing capacity requirements.
While USCIS is committed to reducing processing times and the current
backlog, DHS will not compromise the integrity of the immigration
system and safeguarding national security.

VI. Fee Waivers

A. Background

The fee-setting authority in INA sec. 286(m), 8 U.S.C. 1356(m),
states that ``[f]ees for providing adjudication and naturalization
services may be set at a level that will ensure recovery of the full
costs of providing all such services, including the costs of similar
services provided without charge to asylum

[[Page 456]]

applicants or other immigrants. Such fees may also be set at a level
that will recover any additional costs associated with the
administration of the fees collected.'' That provision does not require
that USCIS charge a fee for all of its services, and it provides that
USCIS may set fees at less than full cost or provide services for free.
DHS has long understood this provision to authorize DHS to fund or
subsidize discounted or free USCIS operations through the fees charged
to other unrelated filings. DHS has exercised its discretion to provide
free services in a number of ways, such as providing that a fee may be
waived for eligible filers upon request, by codifying ``no fee,''
setting a $0 fee, or simply leaving the fee regulations silent and not
codifying a fee for a particular service that it provides.
Currently, USCIS may waive the fee for certain immigration benefit
requests when the individual requesting the benefit is unable to pay
the fee. See 8 CFR 103.7(c) (Oct. 1, 2020). To request a fee waiver,
the individual must submit a written waiver request for permission to
have their benefit request processed without payment. Under the current
regulation, the waiver request must state the person's belief that they
are entitled to or deserving of the benefit requested and the reasons
for their inability to pay and include evidence to support the reasons
indicated. See 8 CFR 103.7(c)(2) (Oct. 1, 2020). There is no appeal of
the denial of a fee waiver request. See id. However, Form I-912 may be
resubmitted with additional evidence if the fee waiver request is
denied.
Following the 2010 fee rule, USCIS also issued guidance to the
field to streamline fee waiver adjudications and make them more
consistent among offices and form types nationwide. See Policy
Memorandum, PM-602-0011.1,\100\ Fee Waiver Guidelines as Established by
the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator's
Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar. 13, 2011)
(``Fee Waiver Policy''). This guidance clarifies what measures of
income can be used and the types of documentation that are acceptable
for individuals to present as demonstration that they are unable to pay
a fee when requesting a fee waiver. In June 2011, USCIS issued the
Request for Fee Waiver, Form I-912, which is an optional standardized
form with instructions that can be used to request a fee waiver in
accordance with the fee waiver guidance.\101\
---------------------------------------------------------------------------

\100\ USCIS, PM 602.0011.1 (March 13, 2011) available at https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf.
\101\ The form and its instructions may be viewed at https://www.uscis.gov/i-912.
---------------------------------------------------------------------------

DHS has always implemented fee waivers for USCIS applicants based
on need, and since 2007, has rejected the filing of fee waivers by
individuals that have the financial means to pay required fees for the
status or benefit sought. See 72 FR 4912 (Feb. 1, 2007). The William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA) \102\ requires DHS to permit certain categories of applicants
to apply for fee waivers for ``any fees associated with filing an
application for relief through final adjudication of the adjustment of
status.'' \103\ DHS interprets ``any fees associated with filing an
application for relief through final adjudication of the adjustment of
status'' \104\ to mean that, in addition to the main immigration
benefit request (such as Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, Form I-914, Application for T Nonimmigrant
Status, or Form I-918, Petition for U Nonimmigrant Status), these
categories of applicants must have the opportunity to request a fee
waiver for any form associated with the main benefit application up to
and including the adjustment of status application.\105\
---------------------------------------------------------------------------

\102\ See title II, subtitle A, sec. 201(d)(3), Public Law 110-
457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
\103\ See id.
\104\ See id.
\105\ Certain USCIS forms are not listed in 8 CFR 103.7(b) and
therefore have no fee. See proposed 8 CFR 106.2 for proposed fees.
---------------------------------------------------------------------------

B. The 2020 Fee Rule Waiver Changes

As stated in section IV of this preamble, each fee review plans for
a certain level of fee waivers, fee exemptions, and other fee-paying
policy decisions. DHS sets IEFA fees to recover estimated full cost,
including the estimated cost of fee-waived and fee-exempt work.
Applicants, petitioners, and requestors who pay a fee cover the cost of
processing their own requests plus the costs of requests that are fee
exempt, fee waived, or fee reduced. In prior years, USCIS fees have
given significant weight to the ability-to-pay principle. However, on
October 25, 2019, DHS revised USCIS fee waiver policies and Form 1-912,
including by requiring fee waiver applicants to use the revised Form I-
912, requiring waiver applicants to submit tax transcripts to
demonstrate income, and not accepting evidence of receipt of a means-
tested public benefit as evidence of inability to pay as described
(``the 2019 Fee Waiver Revisions''). See USCIS Policy Manual Alert, Fee
Submission of Benefit Requests, PA 2019-06 (October 25, 2019).\106\
This guidance was effective December 2, 2019. Form I-912 was updated
and submitted for a 30-day comment period on June 5, 2019,\107\ and
subsequently approved by OMB on October 24, 2019.\108\ While the 2019
Fee Waiver Revisions took effect on December 2, 2019, the United States
District Court for the Northern District of California preliminarily
enjoined them in City of Seattle, No. 3:19-CV-07151-MMC, on December
11, 2019. USCIS then reverted to using the previous policy and form.
---------------------------------------------------------------------------

\106\ Available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191025-FeeWaivers.pdf.
\107\ See 84 FR 26137 (June 5, 2019).
\108\ See OMB Notice of Action available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201910-1615-006#.
---------------------------------------------------------------------------

Subsequently, in the FY 2019/2020 fee review, DHS limited fee
waivers in the 2020 fee rule to immigration benefit requests for which
USCIS is required by law to consider a fee waiver or where the USCIS
Director exercised favorable discretion. 8 CFR 106.3(a)(1) (Oct. 2,
2020). The 2020 fee rule also limited fee waivers to individuals who
have an annual household income of less than 125 percent of the Federal
Poverty Guidelines (FPG) as defined by the U.S. Department of Health
and Human Services (HHS). 8 CFR 106.3(c) (Oct. 2, 2020). In addition,
the USCIS Director's discretion to grant a waiver was limited to: (1)
an individual who had an annual household income at or below 125
percent of the FPG as defined by HHS; (2) was seeking an immigration
benefit for which they were not required to submit an affidavit of
support under INA sec. 213A, 8 U.S.C. 1183a, or were not already a
sponsored immigrant as defined in 8 CFR 213a.1; and (3) was seeking an
immigration benefit for which they were not subject to the public
charge inadmissibility ground under INA sec. 212(a)(4), 8 U.S.C.
1182(a)(4). 8 CFR 106.3(b) (Oct. 2, 2020). The 2020 fee rule required
that a person must submit a request for a fee waiver on the form
prescribed by USCIS. 8 CFR 106.3(d) (Oct. 2, 2020). Finally, the 2020
fee rule prescribed the acceptable documentation of gross household
income that a person submitting a request for a fee waiver must submit.
8 CFR 106.3(f) (Oct. 2, 2020). As noted above, the 2020 fee rule was
preliminarily enjoined before its effective date.
As stated in Section IV, DHS has determined that the 2020 fee
rule's changes to fee waiver and fee exemption requirements would
adversely impact

[[Page 457]]

the ability of those who may be less able to afford the proposed fees
to seek an immigration benefit for which they may be eligible.
Therefore, in this rule, DHS is proposing to maintain previous
regulations for fee waivers and add fee exemptions to address
accessibility and affordability. DHS acknowledges that shifting away
from the beneficiary-pays approach taken in the 2020 fee rule and
reverting to the agency's historical practice of emphasizing the
ability-to-pay principle allocates costs away from individuals who are
exempt from paying fees or have their fees waived, and results in some
fees being higher than the estimated cost of providing the associated
service. Nevertheless, DHS has determined that these proposed fee
waiver regulations are reasonable, authorized by statute, and
consistent with the policy goal of making immigration benefits
affordable to the public while providing USCIS with adequate funding
for its services.

C. Inability To Pay

DHS does not propose to change fee waiver eligibility based on an
inability to pay, and will maintain the 2011 Fee Waiver Policy criteria
that established a streamlined process where USCIS could waive the
entire fee and the biometric services fee (if applicable) for forms
listed in the 8 CFR 103.7(c)(3) (Oct. 1, 2020).\109\ Applicants would
still be eligible for fee waivers if the form is listed in proposed 8
CFR 106.3(a)(3) and the applicant demonstrates that they meet at least
one of the following criteria:
---------------------------------------------------------------------------

\109\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver
Guidelines as Established by the Final Rule of the USCIS Fee
Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter
10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf; AFM Chapter 10.9(b).
---------------------------------------------------------------------------

Is receiving a means-tested benefit;
Had a household income at or below 150 percent of the FPG;
or
Is experiencing extreme financial hardship, such as
unexpected medical bills or emergencies.
The FPG, as annually published by the U.S. Department of Health and
Human Services \110\ increases the latest updated Census Bureau poverty
thresholds by the relevant percentage change in the Consumer Price
Index for All Urban Consumers (CPI-U). Census Bureau income thresholds
vary by family size and composition. If a family's total income is less
than the family's threshold, then every individual in that family is
considered to be living in poverty. The official poverty definition
uses money income before taxes and does not include capital gains or
noncash benefits (public benefits).\111\ The 2020 Poverty Guidelines
for the 48 Contiguous States and the District of Columbia was $12,760
for a household of one and $26,200 for a household of four.\112\
---------------------------------------------------------------------------

\110\ See Annual Update of the HHS Poverty Guidelines (87 FR
3315, Jan 21, 2022), available at https://www.federalregister.gov/documents/2022/01/21/2022-01166/annual-update-of-the-hhs-poverty-guidelines.
\111\ See How the Census Bureau Measures Poverty, available at
https://www.census.gov/topics/income-poverty/poverty/guidance/
poverty-
measures.html#:~:text=Poverty%20Thresholds%3A%20Measure%20of%20Need,a
nd%20age%20of%20the%20members (last visited April 19, 2022).
\112\ See Annual Update of the HHS Poverty Guidelines (86 FR
3060, Jan 17, 2020), available at https://www.federalregister.gov/documents/2020/01/17/2020-00858/annual-update-of-the-hhs-poverty-guidelines.
---------------------------------------------------------------------------

DHS considered the use of other measures of ability to pay for
administration of its fee waiver policies based on input provided by
stakeholders and due to concerns about the continued upward trend in
the number and dollar amounts of fee waivers approved since the three-
step eligibility process and Form I-912 were introduced. For example,
besides the FPG and increasing the percentage reviewed, DHS looked at
using the United States Department of Housing and Urban Development
(HUD) Median Family Income (MFI) \113\ estimates. The median household
income for 2020 was $67,521 in the United States.\114\ HUD Income
Limits calculations include the median family incomes for each area.
HUD uses the Section 8 (housing choice voucher) program's Fair Market
Rent (FMR) \115\ area definitions in developing median family
incomes.\116\ After careful consideration, DHS proposes to maintain the
use of the FPG for determining income thresholds for USCIS fee waiver
purposes for several reasons. First, the FPG ensures a consistent
national standard for income thresholds as HHS is required to update
the FPG at least annually, adjusting them based on the Consumer Price
Index for All Urban Consumers (CPI-U). The MFI and other thresholds
vary greatly by area and require a specific calculation by state and
county and, accordingly, relying on them would increase administrative
costs. Second, it promotes consistency between fee waivers and numerous
other Federal programs that utilize the FPG as an eligibility
criterion, including Medicaid. The MFI is specifically used for HUD
benefits and the calculation changes based on the area, so additional
calculations would need to be done in order to determine eligibility.
Thirdly, USCIS has used the FPG since putting the streamlined fee
waiver request and approval process in place over a decade ago, has
been effectively used, and its continued use would limit
confusion.\117\ In addition, DHS believes that the using FPG minimizes
confusion for the public and USCIS employees in determining income
thresholds for fee waiver eligibility. DHS has determined that use of
the FPG for determining income thresholds affords consistency for
administering a nationwide benefits program that other income
guidelines do not, preserves the accessibility and affordability of
immigration benefits for those who are eligible and may be less able to
afford the proposed fees, and does not result in unmanageable levels of
unfunded immigration services that must be borne by other fees.
---------------------------------------------------------------------------

\113\ See HHS, Office Of Policy Development And Research (Pd&R),
Income Limits, available at https://www.huduser.gov/portal/datasets/il.html (last visited 10/26/2021). USCIS fee waiver eligibility for
receipt of a means-tested benefit includes through HUD-related
housing public benefits.
\114\ See U.S. Census Bureau, Income and Poverty in the United
States: 2020 (September 14, 2021) available at https://www.census.gov/library/publications/2021/demo/p60-273.html (last
visited 04/19/2022).
\115\ See 24 CFR 888.113 are estimates of 40th percentile gross
rents for standard quality units within a metropolitan area or
nonmetropolitan county. See Fair Market Rents (40th Percentile
Rents) available at https://www.huduser.gov/portal/datasets/fmr.html
(last visited 4/19/2022).
\116\ See Methodology for Determining Section 8 Income Limits
available at https://www.huduser.gov/portal/datasets/il//il21/IncomeLimitsMethodology-FY21.pdf (last visited 4/19/2022).
\117\ As noted in the FY 2016/2017 fee rule, estimates of
foregone revenue from fee waivers and exemptions increased markedly,
from $191 million in the FY 2010/2011 fee review to $613 million in
the FY 2016/2017 Fee Review. See 81 FR 73307. Since 2017, the upward
trend in the amount of fee revenue foregone has since subsided. See
Appendix V--Fee Waivers of the supporting documentation in this
docket for historical trends from FY 2014 to FY 2020; the graph
excludes the cost of fee exemptions.
---------------------------------------------------------------------------

D. USCIS Director's Discretionary Fee Waivers and Exemptions

The FY 2010/2011 fee rule also authorized the USCIS Director to
approve and suspend exemptions from fees or provide that the fee may be
waived for a case or class of cases that is not otherwise provided in
the 8 CFR 103.7(c) (Oct. 1, 2020). See 75 FR 58990 (Sept. 24, 2010); 8
CFR 103.7(d) (Oct. 1, 2020). DHS proposes to retain the authority in
regulations for the Director of USCIS to provide exemptions from or
waive any fee for a case or specific class of cases, if the Director
determines that such action would be in the public interest and the
action is consistent with other applicable law. See 8 CFR 103.7(d)

[[Page 458]]

(Oct. 1, 2021); proposed 8 CFR 106.3(c). Previous USCIS Directors have
used this authority to permit fee waivers or provide fee exemptions for
specific categories and groups of immigrants.\118\ DHS further proposes
to maintain the current provision's limitation on the delegation of
this authority to waive or exempt fees to the Deputy Director. Id. In
the 2020 fee rule, DHS had proposed to limit the USCIS' Director's
authority to issue fee waivers and exemptions based on categories of
applicants such as asylee, refugees, national security or emergencies
or natural disasters. See 8 CFR 106.3(b) and (e).\119\ DHS believes
that maintaining the authority for this extraordinary relief with the
leaders of USCIS will ensure that it is consistently administered and
not handled in a way that could impair USCIS fee revenue or shift
significant costs among benefit requests by policy outside of
rulemaking.
---------------------------------------------------------------------------

\118\ For example, See, DHS Announces Fee Exemptions,
Streamlined Processing for Afghan Nationals as They Resettle in the
U.S. (Nov. 8, 2021), available at https://www.uscis.gov/newsroom/news-releases/dhs-announces-fee-exemptions-streamlined-processing-for-afghan-nationals-as-they-resettle-in-the-us (last visited 04/19/
2022). An individual is not permitted to independently submit a
request to the USCIS Director to exempt or waive a fee.
\119\ See 85 FR 46920 (Aug 3, 2020).
---------------------------------------------------------------------------

E. Requirement To Submit Fee Waiver Form

In addition, DHS proposes that fee waiver requests must be
submitted on the form prescribed by USCIS, Form I-912, Request for Fee
Waiver. Proposed 8 CFR 106.3(a)(2). Currently, requests for fee waivers
may be made via a written request submitted with evidence of
eligibility. Less than one percent of the fee waivers requests are
submitted through a written request instead of Form I-912.\120\ Some
written fee waiver requests may be denied because they do not provide
sufficient information for USCIS to adjudicate the request. DHS
believes that requiring Form I-912 will ensure that the information
required to make a fee waiver determination is provided and may result
in fewer rejections due to insufficient or incomplete requests.
---------------------------------------------------------------------------

\120\ See the Regulatory Impact Analysis, sec. O, Fee Waivers,
for further discussion. A total of 29 letters were submitted in lieu
of Form I-912 in 2017, .07 percent of the total.
---------------------------------------------------------------------------

DHS realizes that requiring the form instead of allowing a written
statement with documentation may be an additional burden. Adjudicating
ad hoc fee waiver requests, however, has proven to be difficult for
USCIS due to the varied quality and information provided in such
standalone letter requests. Form I-912 has an estimated time of
completion of one hour and ten minutes, and it provides standardization
that will assist USCIS in review of requests. Because DHS has
determined that requiring the form will reduce rejections, DHS believes
that any added burden is warranted and in the long term will assist
applicants and limit future burdens.

F. Form and Policy Changes

As discussed in the Paperwork Reduction Act section of this rule,
DHS is proposing changes to the information collection requirements
\121\ associated with Form I-912 to clarify the following policies:
---------------------------------------------------------------------------

\121\ DHS is proposing these policy changes in guidance and in
in form instructions and not codifying them in this rule as
regulations but marks those changes in the supporting documents in
the docket for the public to review.
---------------------------------------------------------------------------

The burden of proof for inability to pay is based on a
preponderance of the evidence. An officer may grant a request for fee
waiver in the absence of some of this documentation so long as the
available documentation supports that the requestor is more likely than
not to be unable to pay the fee.
A child's receipt of public housing assistance, such as
public housing or Section 8, will be acceptable as required evidence of
the parent's eligibility for a fee waiver when the parent resides in
the same residence.
The documentary requirements for humanitarian categories
of fee waiver requestors will include that:
[cir] Requestors seeking a fee waiver for any immigration benefit
associated with or based on a pending or approved petition or
application for VAWA benefits or T or U nonimmigrant status do not need
to list the following people as household members or provide income
information for:
[ssquf] Any person in the household who is or was the requestor's
abuser, human trafficker, or perpetrator; or
[ssquf] A person who is or was a member of the abuser, human
trafficker, or perpetrator's household.
[cir] Financial hardships that qualify an applicant for a fee
waiver may result from, but are not limited to the following examples:
[ssquf] A medical emergency or catastrophic illness affecting the
noncitizen or the noncitizen's dependents;
[ssquf] Unemployment;
[ssquf] Significant loss of work hours and wages (change in
employment status);
[ssquf] Eviction;
[ssquf] Homelessness;
[ssquf] Military deployment of spouse or parent;
[ssquf] Natural disaster;
[ssquf] Loss of home (destruction such as fire, water, or
collapse);
[ssquf] Inability to pay basic utilities and rent or mortgage
(payments and bills for each month are more than the monthly wages);
[ssquf] Substantial financial losses to a small business that
affect personal income;
[ssquf] Victimization;
[ssquf] Divorce or death of a spouse that affects overall income;
or
[ssquf] Situations that could not normally be expected in the
regular course of life events.
[cir] A requestor may submit tax returns, a W-2, or pay stubs to
establish household income.
[cir] If the requestor has no income due to unemployment,
homelessness, or other factors, the requestor may provide, as
applicable:
[ssquf] A detailed description of the financial situation that
demonstrates eligibility for the fee waiver;
[ssquf] Hospital bills, or bankruptcy documents;
[ssquf] If the requestor is receiving support services, an
affidavit from a religious institution, non-profit, hospital, or
community-based organization verifying the person is currently
receiving some benefit or support from that entity and attesting to the
requestor's financial situation; or
[ssquf] Evidence of unemployment, such as a termination letter or
unemployment insurance receipt.
These proposed policy changes are aimed at reducing the public
burden and clarifying the types of documents and applicant can provide
with the form. These changes are also responsive to the comments and
suggestions provided by the public in the RPI. DHS believes that making
these policy changes will provide additional guidance to the public on
eligibility and will clarify requirements for vulnerable populations.

G. Request for Comments

DHS welcomes comment on the proposed changes to additional fee
waivers which may include additional categories of petitioners,
applicants or forms.
In addition, while DHS proposes no changes to the fee waiver
criteria, the Department specifically requests comments on the
appropriate level of income that should be used by an applicant who is
unable to pay their fee and data to support that suggested level or
measure.
DHS also welcomes comments on requiring Form I-912 for all fee
requests and on alternatives for reducing

[[Page 459]]

rejections based on lack of information or documentation with a written
request.

VII. Fee Exemptions

As stated in section VI.A., DHS may provide services for free and
fund those free services with the fees charged to other, unrelated
filings. DHS has exercised its discretion to provide free services by
providing that a fee may be waived upon request, or by codifying ``no
fee,'' setting a $0 fee, or not codifying a fee for a particular
service that USCIS administers. DHS is proposing to maintain fee
exemptions currently being applied and provide new fee exemptions in
this rule as follows.

A. Codification of Benefit Requests With No Fees and Exemptions of
Certain Categories or Classifications From Fees

DHS proposes to codify several longstanding fee exemptions that are
currently provided through policy guidance documents, such as form
instructions, the USCIS policy manual, or similar directives, but not
in regulations, including the following: \122\
---------------------------------------------------------------------------

\122\ Application for Commonwealth of the Northern Mariana
Islands (CNMI) Long-Term Resident Status (Form I-955) is not
included in this list because USCIS only accepted applications for
initial CNMI long-term resident status between February 19, 2020 and
August 17, 2020. As of August 17, 2020, USCIS no longer accepts any
Forms I-955.
---------------------------------------------------------------------------

Form I-90, Application to Replace Permanent Resident Card.
No fee if the applicant was issued a card but never received it, or if
the applicant's card was issued with incorrect information because of
DHS error. Proposed 8 CFR 106.2(a)(1)(iv).
Form I-102, Application for Replacement/Initial
Nonimmigrant Arrival-Departure Document. No fee for initial filings for
a nonimmigrant member of the U.S. armed forces, for a nonimmigrant
member of the North Atlantic Treaty Organization (NATO) armed forces or
civil component; for a nonimmigrant member of the Partnership for Peace
military program under the Status of Forces Agreement; and for
replacement for DHS error. Proposed 8 CFR 106.2(a)(2)(i) through (iv).
Form I-129CWR, Semiannual Report for CW-1 Employers.
Proposed 8 CFR 106.2(a)(4)(ii).
Form I-131, Application for Travel Document. Proposed 8
CFR 106.2(a)(7)(v). No fees for parole requests from current or former
U.S. armed forces service members.
Form I-134, Declaration of Financial Support. Proposed 8
CFR 106.2(a)(9).
Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant. DHS proposes no fee for the following:
[cir] A petition for Special Immigrant Juvenile (SIJ)
classification, Proposed 8 CFR 106.2(a)(16)(iii); and
[cir] A petition for a person who served honorably on active duty
in the U.S. armed forces filing under INA sec. 101(a)(27)(K). Proposed
8 CFR 106.2(a)(16)(v).
Form I-361, Affidavit of Financial Support and Intent to
Petition for Legal Custody for Public Law 97-359 Amerasian. Proposed 8
CFR 106.2(a)(17).
Form I-363, Request to Enforce Affidavit of Financial
Support and Intent to Petition for Legal Custody for Public Law 97-359
Amerasian. Proposed 8 CFR 106.2(a)(18).
Form I-407, Record of Abandonment of Lawful Permanent
Resident Status. Proposed 8 CFR 106.2(a)(19).
Form I-485J, Confirmation of Bona Fide Job Offer or
Request for Job Portability Under INA Section 204(j). Proposed 8 CFR
106.2(a)(22).
Form I-508, Request for Waiver of Certain Rights,
Privileges, Exemptions, and Immunities. Proposed 8 CFR 106.2(a)(23).
Form I-539, Application to Extend/Change Nonimmigrant
Status for nonimmigrant A, G, and NATO and T nonimmigrant. Proposed 8
CFR 106.2(a)(25)(iii)(A).
Form I-566, Interagency Record of Request--A, G, or NATO
Dependent Employment Authorization or Change/Adjustment To/From A, G,
or NATO Status. Proposed 8 CFR 106.2(a)(26).
Form I-589, Application for Asylum and for Withholding of
Removal. Proposed 8 CFR 106.2(a)(27).
Form I-590, Registration for Classification as a Refugee.
Proposed 8 CFR 106.2(a)(28).
Form I-600, Petition to Classify Orphan as an Immediate
Relative. DHS proposes no fee for the first Form I-600 filed for a
child based on an approved Form I-600A, Application for Advance
Processing of an Orphan Petition, during the Form I-600A approval or
extended approval period. Proposed 8 CFR 106.2(a)(29)(i).
Form I-601, Application for Waiver of Grounds of
Inadmissibility. DHS proposes to move the current fee exemption for
concurrently filing a Form I-601 for certain reasons in 8 CFR 245.1(f)
to the fee provision for the Form I-601. Proposed 8 CFR 106.2(a)(32).
Form I-602, Application by Refugee for Waiver of Grounds
of Inadmissibility. Proposed 8 CFR 106.2(a)(34).
Form I-693, Report of Medical Examination and Vaccination
Record. Proposed 8 CFR 106.2(a)(38).
Form I-730, Refugee/Asylee Relative Petition. Proposed 8
CFR 106.2(a)(41).
Form I-765, Application for Employment Authorization. DHS
proposes that no fee will be charged for an initial EAD for the
following:
[cir] Dependents of certain Government and international
organizations or NATO personnel. Proposed 8 CFR 106.2(a)(43)(iii)(B).
[cir] N-8 (Parent of noncitizen classified as SK3) and N-9 (Child
of N-8) nonimmigrants; Proposed 8 CFR 106.2(a)(43)(iii)(C).
[cir] Persons granted asylee status (AS1, AS6). Proposed 8 CFR
106.2(a)(43)(iii)(D).
[cir] Citizens of Micronesia, Marshall Islands, or Palau. Proposed
8 CFR 106.2(a)(43)(iii)(E).
[cir] Persons Granted Withholding of Deportation or Removal.
Proposed 8 CFR 106.2(a)(43)(iii)(F).
[cir] Applicants for Asylum and Withholding of Deportation or
Removal including derivatives. Proposed 8 CFR 106.2(a)(43)(iii)(G).
[cir] Taiwanese dependents of Taipei Economic and Cultural
Representative Office E-1 employees. Proposed 8 CFR
106.2(a)(43)(iii)(H).
[cir] A Request for replacement EAD based on USCIS error. Proposed
8 CFR 106.2(a)(43)(iv).
[cir] For a renewal or replacement EAD for the following:
[ssquf] Dependents of certain foreign government, international
organization, or NATO personnel. Proposed 8 CFR 106.2(a)(43)(v)(B);
[ssquf] Citizens of Micronesia, Marshall Islands, or Palau.
Proposed 8 CFR 106.2(a)(43)(v)(C); and
[ssquf] Persons Granted Withholding of Deportation or Removal.
Proposed 8 CFR 106.2(a)(43)(v)(D).
Form I-765V, Application for Employment Authorization for
Abused Nonimmigrant Spouse. Proposed 8 CFR 106.2(a)(43)(vi) and 8 CFR
106.3(a)(3)(iii).
Form I-800, Petition to Classify Convention Adoptee as an
Immediate Relative, for the first Form I-800 filed for a child based on
an approved Form I-800A, Application for Determination of Suitability
to Adopt a Child from a Convention Country, during the Form I-800A
approval period or extended approval period. Proposed 8 CFR
106.2(a)(44)(i)(A).
Form I-821, Application for Temporary Protected Status.
There is no fee for re-registration. Proposed 8 CFR 106.2(a)(48)(ii).

[[Page 460]]

Form I-854, Inter-Agency Alien Witness and Informant
Record. Proposed 8 CFR 106.2(a)(52).
Form I-864, Affidavit of Support Under Section 213A of the
INA. Proposed 8 CFR 106.2(a)(53).
Form I-864A, Contract Between Sponsor and Household
Member. Proposed 8 CFR 106.2(a)(53)(i).
Form I-864EZ, Affidavit of Support Under Section 213A of
the INA. Proposed 8 CFR 106.2(a)(53)(ii).
Form I-864W, Request for Exemption for Intending
Immigrant's Affidavit of Support. Proposed 8 CFR 106.2(a)(53)(iii).
Form I-865, Sponsor's Notice of Change of Address.
Proposed 8 CFR 106.2(a)(53)(iv).
Form I-912, Request for Fee Waiver. Proposed 8 CFR
106.2(a)(58).
Supplement A to Form I-914, Application for Immigrant
Family Member of a T-1 Recipient, and Supplement B to Form I-914,
Declaration of Law Enforcement Officer for Victim of Trafficking in
Persons. Proposed 8 CFR 106.2(a)(59).
Supplement A to Form I-918, Petition for Qualifying Family
Member of U-1 Recipient, and Supplement B to Form I-918, U Nonimmigrant
Status Certification. Proposed 8 CFR 106.2(a)(60).
Form I-942, Request for Reduced Fee, requesting a reduced
fee for the naturalization application Form N-400. Proposed 8 CFR
106.2(a)(65).
Form N-4, Monthly Report on Naturalization Papers.
Proposed 8 CFR 106.2(b)(1).
Form N-476, Request for Certification of Military or Naval
Service. Proposed 8 CFR 106.2(b)(5).
Form N-644, Application for Posthumous Citizenship.
Proposed 8 CFR 106.2(b)(10).
Form N-648, Medical Certification for Disability
Exceptions. Proposed 8 CFR 106.2(b)(11).
Claimant under INA sec. 289. Proposed 8 CFR 106.2(c)(9).

B. Proposed Fee Exemptions

The TVPRA \123\ requires DHS to permit certain categories of
requestors filing petitions and applications to apply for fee waivers,
including for ``any fees associated with filing an application for
relief through final adjudication of the adjustment of status.'' \124\
This provision generally is limited to VAWA self-petitioners, as
defined in INA sec. 101(a)(51), and noncitizens applying for certain
other immigration benefits available to battered spouses and children
or for T or U nonimmigrant status. DHS interprets this language to mean
that, in addition to the main benefit request, individuals must have
the opportunity to request a fee waiver for any form associated with
the main benefit request up to and including the adjustment of status
application. See 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020); proposed 8
CFR 106.3(a)(3)(iii). Although DHS is authorized to establish and
collect a fee for that benefit request under INA sec. 286(m), 8 U.S.C.
1356(m), several humanitarian benefit requests have been exempted from
fees because of the humanitarian nature of these programs and the
likelihood that individuals who file requests in these categories will
qualify for a fee waiver if they request it.\125\ DHS is proposing to
provide additional fee exemptions for the following humanitarian-based
immigration benefit requests under proposed 8 CFR 106.3(b) for the
reasons listed below. These fee exemptions do not impact eligibility
for any particular form or when an individual may file the form. These
fee exemptions are in addition to the forms listed under proposed 8 CFR
106.2 for which DHS proposes to codify that there is ``no fee.'' Table
13C below provides a summary of the categories and the forms eligible
for fee exemptions and fee waivers. In this proposed rule, DHS
estimates that the increase in fee exemptions accounts for 1 percent of
the 40-percent weighted average fee increase.\126\
---------------------------------------------------------------------------

\123\ See title II, subtitle A, sec. 201(d)(3), Public Law 110-
457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
\124\ See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
\125\ See, e.g., previous 8 CFR 103.7(b)(1)(i)(UU) and (VV)
(codifying no fee for, respectively, the Application for T
Nonimmigrant Status, Form I-914, and the Petition for U Nonimmigrant
Status, Form I-918).
\126\ Office of the Chief Financial Officer (OCFO), September
13, 2021.
---------------------------------------------------------------------------

1. Victims of Severe Form of Trafficking (T Nonimmigrants)
There is no fee for filing Form I-914, Application for T
Nonimmigrant Status; Form I-914, Supplement A, Application for Family
Member of T-1 Recipient; and Form I-914, Supplement B, Declaration of
Law Enforcement Officer for Victim of Trafficking in Persons; under
former 8 CFR 103.7(b)(1)(i)(UU) (Oct. 1, 2020), and DHS will continue
to have no filing fee for these forms under proposed 8 CFR
106.2(a)(59). Principal applicants for T nonimmigrant status currently
also do not file Form I-765 or pay a fee when an EAD is requested on
Form I-914 and is issued incident to status. Any principal applicant
who does not request employment authorization on Form I-914 must file
Form I-765 but is fee exempt. Derivative beneficiaries must file Form
I-765 and must submit a fee or fee waiver request. Currently, T
nonimmigrants may request fee waivers for all forms up to and including
a Form I-485 and associated forms.\127\
---------------------------------------------------------------------------

\127\ See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7); 8 CFR
103.7(c) (Oct. 1, 2020).
---------------------------------------------------------------------------

In this proposed rule, DHS is proposing to expand fee exemptions
for all persons seeking or granted T nonimmigrant status, including
principals and derivatives, for all forms associated with an initial
application for T nonimmigrant status through final adjudication of the
T nonimmigrant's application for adjustment of status to LPR. See
proposed 8 CFR 106.3(b)(2). Applicants for T nonimmigrant status are a
small and especially vulnerable population that has historically
underused the T visa program; DHS has never come close to reaching the
annual statutory cap of 5,000 visas allocated to principal victims
since the creation of the T visa program. Many T visa applicants are
also eligible for fee waivers. To encourage eligible victims of
trafficking to use the T visa program, DHS is proposing to expand fee
exemptions for this population.
2. Victims of Qualifying Criminal Activity (U Nonimmigrants)
There is no fee for filing Form I-918, Petition for U Nonimmigrant
Status; Form I-918, Supplement A, Petition for Qualifying Family Member
of U-1 Recipient; or Form I-918, Supplement B U Nonimmigrant Status
Certification. See 8 CFR 103.7(b)(1)(i)(VV) (Oct. 1, 2020). DHS
proposes to continue having no fee for these forms. Proposed 8 CFR
106.2(a)(60). Principal U nonimmigrants who are in the United States
are also currently fee exempt for fees associated with employment
authorization when it is issued incident to status and are not required
to file Form I-765 to receive an EAD under 8 CFR 214.14(c)(7).
Principal U nonimmigrants outside the United States are fee exempt for
fees associated with employment authorization issued incident to status
once they enter the United States and file Form I-765. Derivative
beneficiaries requesting employment authorization, however, must file
Form I-765 with the appropriate fee or fee waiver request. U
nonimmigrants may also request a fee waiver for any forms filed up to
and including a Form I-485 and associated forms.\128\
---------------------------------------------------------------------------

\128\ See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

DHS is now proposing to expand fee exemptions for persons seeking
or granted U nonimmigrant status for all

[[Page 461]]

forms filed before filing a Form I-485. Proposed 8 CFR 106.3(b)(5).
Form I-765 would only be fee exempt, however, for an initial request
under 8 CFR 274a.12(a)(19) and (20) and an initial request under 8 CFR
274a.12(c)(14).
DHS is proposing that any form associated with U nonimmigrant
status be fee exempt up until the filing of a Form I-485. A fee would
be due (or a fee waiver requested) for a U nonimmigrant to file a Form
I-485 and any Form I-929, Petition for Qualifying Family Member. The
fee exemption for U nonimmigrants would not extend to the Form I-485,
unlike the fee exemption proposed for a Form I-485 filed by T
nonimmigrants. DHS acknowledges that, like T nonimmigrants, U
nonimmigrants are a particularly vulnerable population as victims of
crimes and may have similar financial resources or employment
prospects. However, DHS is proposing to treat them differently with
regard to their respective Form I-485 fees. U nonimmigrants may have a
longer time with work authorization than T nonimmigrants given the
ability of U nonimmigrant petitioners to receive work authorization as
part of the bona fide determination (BFD) process or with placement on
the waiting list and the lengthy waiting period before a U visa becomes
available. While some T nonimmigrant applicants may have work
authorization during the pendency of their application pursuant to a
grant of Continued Presence by U.S. Immigration and Customs Enforcement
(ICE), there has not been a BFD process implemented in the T visa
program, nor has a waiting list ever been used. The annual cap of 5,000
visas for the T visa program has also never been met, whereas the
annual cap of 10,000 visas for the U visa program is consistently
reached. Given current T nonimmigrant status processing times, which
are much shorter than in the U visa context, the issuance of T
nonimmigrant status may occur before a U petitioner is issued a BFD or
waiting list-based work authorization. Some T nonimmigrants are also
able to adjust much more quickly than a U visa petitioner given their
ability to adjust upon the completion of the trafficking investigation
or prosecution if certified by the U.S. Attorney General. In some
cases, the investigation or prosecution is already complete at the time
the individual receives T nonimmigrant status, rendering them
immediately eligible to adjust status. For all of these reasons, U
nonimmigrants are likely to have had work authorization much longer
than T nonimmigrants, and thus are less likely to need a fee exemption
for filing Form I-485.
In addition, USCIS receives a large number of petitions for U
nonimmigrant status each year and the cost of administering the U
nonimmigrant program is already largely funded by other fee-paying
requests. The T nonimmigrant program is also funded by other fee-paying
requests, but the costs of the T program are much lower because the
volume of T-based requests that USCIS must adjudicate is significantly
lower. DHS has determined that extending fee exemptions to the low
volume of T nonimmigrants filing Form I-485 could be absorbed with very
little impact. In contrast, providing a fee exemption for U
nonimmigrants filing Form I-485 would result in substantial
adjudication costs being shifted to fee payers because of the much
larger number of U nonimmigrants who file Form I-485. Thus, while the
populations have many similar characteristics, because of the different
levels of cost shifting required, DHS decided that the different
treatments for the Form I-485 fee were justified as proposed in this
rule.
3. VAWA Form I-360 Self-Petitioners and Derivatives
Violence Against Women Act (VAWA) self-petitioners currently pay no
fee for filing Form I-360 and would continue to not pay a fee under
this proposed rule. See 8 CFR 106.2(a)(16)(ii) (Oct. 1, 2020); proposed
8 CFR 106.3(b)(6). VAWA self-petitioners also currently are not
required to file Form I-765 or pay a fee when employment authorization
is requested on Form I-360. VAWA self-petitioners who do not request
employment authorization on Form I-360, however, and all derivative
beneficiaries must file Form I-765 and submit the fee or request a fee
waiver to obtain employment authorization. VAWA self-petitioners and
derivatives are currently eligible for fee waivers for any forms filed
up to and including a Form I-485 and associated forms.\129\
---------------------------------------------------------------------------

\129\ See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

DHS is now proposing to expand fee exemptions for persons seeking
or granted immigrant classification as VAWA self-petitioners. See
proposed 8 CFR 106.3(b)(6). VAWA self-petitioners and derivatives are
eligible to concurrently file Form I-360 and Form I-485 if a visa would
be immediately available after approval of Form I-360.\130\ Therefore,
when a VAWA Form I-360 is concurrently filed or pending with Form I-
485, DHS proposes that VAWA self-petitioners be fee exempt for all
forms associated with the Form I-360 filing through final adjudication
of the adjustment of status application, including the filing of Form
I-290B. Id. When a VAWA Form I-360 is filed as a standalone self-
petition, however, the VAWA self-petitioner would only be fee exempt
for Form I-290B, if filed as a motion to reopen or reconsider or an
appeal of the Form I-360 denial. Proposed 8 CFR 106.3(b)(6)(ii). All
separately filed Form I-485s and associated forms would require a fee
or fee waiver request. Additionally, only initial requests for
employment authorization under 8 CFR 274a.12(c)(14) and initial
requests under INA sec. 204(a)(1)(K) for the beneficiary of an approved
VAWA self-petition would be fee exempt. Requests for employment
authorization approved under INA sec. 204(a)(1)(K) are issued as a
category (c)(31) EAD. A fee or fee waiver request will be required to
replace or renew the initial, free EAD. For VAWA self-petitioners
filing Form I-360, all fee exemptions will also apply to derivative
beneficiaries. Proposed 8 CFR 106.3(b)(6).
---------------------------------------------------------------------------

\130\ See INA sec. 204(a)(1)(A)(iii)(II)(cc), (iv), (v), and
(vii); 8 U.S.C. 1154(a)(1)(A)(iii)(II)(cc), (iv), (v), and (vii).
See 8 CFR 245.2(a)(i)(2)(B).
---------------------------------------------------------------------------

Like T and U nonimmigrants, VAWA self-petitioners are a
particularly vulnerable population as victims of abuse and may not have
the financial resources or employment authorization needed to pay for
fees when initially filing for immigrant classification as VAWA self-
petitioners. When passing VAWA, Congress gave individuals the ability
to independently seek immigrant classification without the abusive U.S.
citizen or LPR's participation or knowledge. VAWA self-petitioners may
still be living with their abuser or may have recently fled their
abusive relationship when filing the self-petition. According to the
National Network to End Domestic Violence, abusers often maintain
control over financial resources to further the abuse, and victims may
have to choose between staying in an abusive relationship and poverty
and homelessness.\131\ Therefore, victims of abuse may not have access
to their finances or the financial means to pay for fees when filing
VAWA Form I-360, Form I-485, and associated forms. DHS, however, must
weigh these difficult considerations against the number of VAWA self-
petition filings it receives each year and the transfer of costs to
other petitions and applications if these

[[Page 462]]

filings were fee exempt through final adjudication of the adjustment of
status application. Therefore, DHS is proposing to limit the new fee
exemptions for these populations to forms associated with the VAWA
self-petition filing that are filed at the same time as or while the
VAWA Form I-360 self-petition is pending before the adjustment of
status applicant is filed. DHS is not proposing to exempt VAWA self-
petitioners from the Form I-485 fee when it is filed after their I-360
is approved because the approval of the Form I-360 authorizes
employment of the self-petitioner and the ability to either obtain the
funds to pay the fee or request a fee waiver.
---------------------------------------------------------------------------

\131\ See ``About Financial Abuse,'' Nat'l Network to End
Domestic Violence, https://nnedv.org/content/about-financial-abuse/
(last viewed June 2, 2021).
---------------------------------------------------------------------------

4. Conditional Permanent Residents Filing a Waiver of Joint Filing
Requirement Based on Battery or Extreme Cruelty
Conditional permanent residents (CPRs) filing a waiver of the joint
filing requirement based on battery or extreme cruelty (abuse waiver)
are considered VAWA self-petitioners as defined in INA sec.
101(a)(51)(C) and currently may request a fee waiver when filing Form
I-751. See 8 CFR 103.7(c)(3)(vii) (Oct. 1, 2020). DHS proposes that a
CPR requesting an abuse waiver continue to be eligible to request a fee
waiver when filing Form I-751. See proposed 8 CFR 106.3(a)(3)(i)(C).
Because CPRs filing Form I-751 may file for more than one basis when
seeking any waiver of the joint filing requirement, USCIS is unable to
provide a fee exemption for Form I-751 abuse waivers. However, because
CPRs requesting abuse waivers are a relatively small population and are
particularly vulnerable as victims of abuse as stated above, DHS is
proposing to exempt them from the fee for Form I-290B to file a motion
to reopen or reconsider the decision after a Form I-751 abuse waiver
request is denied. See proposed 8 CFR 106.2(a)(15).
5. Abused Spouses and Children Adjusting Status Under CAA or HRIFA
Abused spouses and children seeking benefits under the Cuban
Adjustment Act (CAA) and the Haitian Refugee Immigration Fairness Act
(HRIFA) are considered VAWA self-petitioners as defined in INA sec.
101(a)(51)(D) and (E). As such, they are currently eligible for fee
waivers for any forms filed through adjustment of status to LPR,
including associated forms.\132\ See 8 CFR 103.7(c)(3)(xviii) (Oct. 1,
2020).
---------------------------------------------------------------------------

\132\ See INA sec. 245(l)(7); 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

DHS proposes to provide fee exemptions for these persons for all
forms filed through final adjudication for adjustment of status to LPR,
including Form I-485 and associated forms. Proposed 8 CFR 106.3(b)(4).
For abused spouses and children filing under CAA and HRIFA, they will
be fee exempt for Form I-485 and associated forms, as they file for
VAWA benefits on Form I-485. Proposed 8 CFR 106.3(b)(4). Associated
forms include any forms filed before the individual adjusts their
status to LPR, such as a Form I-131; Form I-212, Application for
Permission to Reapply for Admission into the United States After
Deportation or Removal; Form I-290B, Form I-601, and Form I-765. Id.
Like VAWA self-petitioners filing Form I-360, these abused spouses and
children are particularly vulnerable populations as victims of abuse.
As there were fewer than 50 applications filed for these 2 populations
combined in FY 2020, and the applicant files for VAWA benefits when
filing for adjustment of status to LPR, DHS proposes to provide fee
exemptions for the VAWA-based filing (such as for Form I-485) as well
as associated forms. Id.
6. Abused Spouses and Children Seeking Benefits Under NACARA
Abused spouses and children seeking benefits under the Nicaraguan
Adjustment and Central American Relief Act (NACARA) are considered VAWA
self-petitioners as defined in INA sec. 101(a)(51)(F). As such, they
are currently eligible for fee waivers for any forms filed through
adjustment of status, including associated forms.\133\ See 8 CFR
103.7(c)(3)(xviii) (Oct. 1, 2020).
---------------------------------------------------------------------------

\133\ See INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

DHS proposes to provide fee exemptions for abused spouses and
children seeking benefits under NACARA for all forms filed through
final adjudication for adjustment of status to LPR, including the
Application for Suspension of Deportation or Special Rule Cancellation
of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA))
(Form I-881) and associated forms. Proposed 8 CFR 106.3(b)(7). For
abused spouses and children under NACARA, they must file for VAWA
benefits while in immigration proceedings, so they will be fee exempt
for the Form I-881, Form I-601, and Form I-765, which are forms that
may be filed with USCIS. Victims of abuse who file for VAWA benefits in
immigration court proceedings are a particularly vulnerable population
of applicants as mentioned previously. Therefore, DHS proposes to
provide fee exemptions for Form I-881 and Form I-765, which are forms
that may be filed with USCIS. Id.
7. Abused Spouses and Children of LPRs or U.S. Citizens Under INA Sec.
240A(b)(2)
Currently, abused spouses and children of LPRs and U.S. citizens
seeking cancellation of removal and adjustment of status under INA sec.
240A(b)(2) are eligible for fee waivers for any forms filed with USCIS
through adjustment of status to LPR, including associated forms.\134\
See 8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020). In this rule, DHS proposes
that this population be exempt from the fee for an Application for
Waiver of Grounds of Inadmissibility (Form I-601) and an initial
Application for Employment Authorization (Form I-765) when filed under
8 CFR 274a.12(c)(10). See Proposed 8 CFR 106.3(b)(8). Abused spouses
and children of LPRs and U.S. citizens seeking cancellation of removal
and adjustment of status in immigration proceedings are a particularly
vulnerable population. Therefore, DHS proposes to provide fee
exemptions for the only forms that this population may file with USCIS,
Forms I-601 and an initial I-765. Id.
---------------------------------------------------------------------------

\134\ See INA sec. 245(l)(7); 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

8. Special Immigrant Afghan or Iraqi Translators or Interpreters, Iraqi
Nationals Employed by or on Behalf of the U.S. Government, or Afghan
Nationals Employed by or on Behalf of the U.S. Government or Employed
by the International Security Assistance Force and Derivative
Beneficiaries
The National Defense Authorization Act for FY 2008 \135\ and
Omnibus Appropriations Act \136\ prohibit DHS from charging any fees in
connection with an application for, or issuance of, a special immigrant
visa for Special Immigrant Afghan or Iraqi translators or interpreters,
Iraqi nationals employed by or on behalf of the U.S. Government, or
Afghan nationals employed by or on behalf of the U.S. Government or
employed by the International Security Assistance Force (ISAF). These
applicants do not currently pay fees for Form I-360.
---------------------------------------------------------------------------

\135\ See Public Law 110-181 (Jan. 28, 2008).
\136\ See Public Law 111-8 (Mar. 11, 2009).

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

[[Page 463]]

As part of Operation Allies Welcome, beginning in July 2021, DHS
authorized filing fee exemptions, including for Form I-485, Form I-601,
and Form I-765, for certain Afghan nationals and their derivative
beneficiaries meeting certain criteria, who were evacuated from
Afghanistan due to the humanitarian crisis in that country.\137\ DHS is
proposing to expand fee exemptions for Special Immigrant Afghan or
Iraqi translators or interpreters, Iraqi Nationals Employed by or on
behalf of the U.S. Government, or Afghan nationals employed by or on
behalf of the U.S. Government or employed by the ISAF to all forms
associated with filings from initial status filing through final
adjudication of the adjustment of status application. Proposed 8 CFR
106.3(b)(3). In addition, DHS is clarifying that surviving spouses and
children of certain principal applicants who may file a petition for
classification as a special immigrant under to section 403 of the
Emergency Security Supplemental Appropriations Act, 2021, Public Law
117-31, 135 Stat. 309, 318 (July 30, 2021), are exempt from paying the
filing fee for Form I-360.\138\ DHS believes this population, who
assisted the United States Government often at risk to themselves and
their families, should benefit from an immigration process that imposes
a minimal financial burden. In addition, because the statutes provide
that the special immigrant visa petition is fee exempt, DHS believes
that it is consistent with those laws to provide fee exemptions for
these additional forms that are generally filed with or associated with
the special immigrant visa petition.
---------------------------------------------------------------------------

\137\ See U.S. Dep't of Homeland Security, ``DHS Announces Fee
Exemptions, Streamlined Processing for Afghan Nationals as They
Resettle in the U.S.'' (Nov. 8, 2021), available at https://www.dhs.gov/news/2021/11/08/dhs-announces-fee-exemptions-streamlined-processing-afghan-nationals-they-resettle.
\138\ The Emergency Security Supplemental Appropriations Act,
2021, Public Law 117-31, 135 Stat. 309, 318 (July 30, 2021), removed
the requirement that the principal noncitizen have a petition for
special immigrant visa (SIV) classification approved, in order for
the surviving spouse and/or children of the principal noncitizen to
apply to obtain SIVs, and replaced it with the requirement that the
principal noncitizen must have submitted an application for Chief of
Mission (COM) approval under section 1244 of Public Law 110-181, 122
Stat. 3 (Jan. 28, 2008), section 602(b) of the Afghan Allies
Protection Act of 2009, Title VI of Public Law 111-8, 123 Stat. 524,
807 (Mar. 11, 2009), or section 1059 of the National Defense
Authorization Act for Fiscal Year 2006, Public Law 109-163, 119
Stat. 3136 (Jan. 6, 2006) which included the noncitizen as an
accompanying spouse or child, or the principal noncitizen had
completed the special immigrant employment requirements at the time
of their death.
---------------------------------------------------------------------------

9. Special Immigrant Juveniles
DHS currently fee exempts Form I-360 \139\ for Special Immigrant
Juveniles (SIJs) and provides them eligibility to file a fee waiver for
Form I-485 and associated forms \140\ as well as for a naturalization
application.\141\ Upon classification as an SIJ, a noncitizen may be
eligible to apply for adjustment of status to LPR if an immigrant visa
number is immediately available. See INA sec. 245(h), 8 U.S.C. 1255(h).
DHS is now proposing to fee exempt SIJs for all forms through final
adjudication of the adjustment of status application, which will
include Form I-485 and associated forms. Proposed 8 CFR 106.3(b)(1).
SIJ petitioners and recipients are youth who have suffered abuse,
neglect, or abandonment by one or both parents, and DHS believes that
most SIJs have no means to pay the fees for these forms. Congress, in
recognizing the vulnerability of these youth, has afforded special
protections to this population, including access to federally funded
assistance through the Unaccompanied Refugee Minors program.\142\
Currently, SIJs are not required to provide evidence of household
income when applying for a fee waiver, and many are in the foster care
system or full-time students or both, without an ability to work.\143\
For these reasons, most SIJs are eligible for a fee waiver. DHS is
proposing to fee exempt SIJs through final adjudication of Form I-485
to recognize the financial and personal situation of most SIJs, to
reduce the burden on SIJs to request a fee waiver, and to reduce the
burden on USCIS of adjudicating SIJ fee waivers that are generally
approved.
---------------------------------------------------------------------------

\139\ 8 CFR 103.7(b)(1)(i)(T)(3) (Oct. 1, 2020).
\140\ 8 CFR 103.7(c)(4)(iii) (Oct. 1, 2020).
\141\ 8 CFR 103.7(c)(3)(xiii) (Oct. 1, 2020).
\142\ See 8 U.S.C. 1232(d)(4)(A).
\143\ See USCIS, Instructions for Request for Fee Waiver, page
7, available at https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf (last viewed June 1, 2021).
---------------------------------------------------------------------------

10. Temporary Protected Status
The fee for an Application for Temporary Protected Status (Form I-
821) for TPS registrations is limited to $50 by statute. See INA sec.
244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B). In addition, TPS applicants are
eligible for fee waivers for any forms submitted based on the
TVPRA.\144\ DHS is not proposing any additional fee exemptions or fee
waivers for this population.
---------------------------------------------------------------------------

\144\ See title II, subtitle A, sec. 201(d)(3), Public Law 110-
457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7);
8 CFR 103.7(c)(3)(xviii) (Oct. 1, 2020).
---------------------------------------------------------------------------

DHS, however, is proposing to remove the fee exemption for Form I-
765 filed by initial TPS applicants under age 14 and over age 65 for
initial EAD requests. See proposed 8 CFR 244.6(b). Currently, initial
TPS applicants under age 14 and over age 65 are exempt from paying the
fee for Form I-765 for initial EAD requests. See 8 CFR 244.6(b) (Oct.
1, 2020).\145\ When the regulations implementing TPS were first
published in 1991, the INS required all TPS applicants to file Form I-
765 for information collection purposes, even if an applicant did not
wish to request employment authorization.\146\ At that time, INS did
not issue EADs to minor children or persons over age 65.\147\ TPS
applicants who did not wish to request employment authorization were
not required to pay the fee for Form I-765. Initially, only nationals
of El Salvador ages 14-65 who requested employment authorization were
required to pay the fee for Form I-765. However, on April 25, 1995, INS
revised Form I-765 to remove the El Salvador specific language from the
form instructions and required all TPS applicants ages 14-65 who were
requesting employment authorization to pay the fee for Form I-765,
regardless of nationality, although fee waivers were available. The
regulatory language was updated to reflect this change in 1999.\148\
---------------------------------------------------------------------------

\145\ The exemption is not codified, except by implication by 8
CFR 244.6, which states that applicants between the ages of 14 and
65 who are not requesting authorization to work will not be charged
a fee for an application for employment authorization.
\146\ See 56 FR 619 (Jan. 7, 1991), as amended at 56 FR 23497
(May 22, 1991) (codifying 8 CFR 240.6 that provided that the fee for
Form I-765 was not charged except for nationals from El Salvador
between the ages of 14 to 65 who requested an EAD).
\147\ See 56 FR 23495 (May 22, 1991).
\148\ See 64 FR 4780-4781 (Feb. 1, 1999).
---------------------------------------------------------------------------

USCIS no longer requires TPS applicants to file Form I-765 for
information collection purposes, and only requires it if the TPS
applicant wants an EAD. Persons applying for TPS who do not wish to
request employment authorization need only file Form I-821.\149\ The
reason that the INS fee exempted a Form I-765 filed by initial TPS
applicants under age 14 and over age 65 from a fee no longer exists.
Thus, DHS is proposing that all TPS applicants requesting employment
authorization must pay the filing fee for Form I-765 or request a fee
waiver.
---------------------------------------------------------------------------

\149\ The October 17, 2017, revision of Form I-821 made
concurrent filing of Form I-765 optional. The May 31, 2018, revision
of Form I-765 removed the instruction appearing on earlier
iterations indicating that Form I-765 must be filed with Form I-821
to register for TPS, regardless of whether the applicant was
requesting employment authorization.

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

[[Page 464]]

11. Asylum Seekers and Asylees
DHS is not proposing any changes to fee exemptions or fee waivers
for asylum seekers or asylees and is proposing to codify that there is
no fee for an Application for Asylum and for Withholding of Removal
(Form I-589). Proposed 8 CFR 106.2(a)(27). See Table 13C, Categories of
Requestors and Related Forms Eligible for Fee Waivers under INA sec.
245(l)(7), 8 U.S.C. 1255(l)(7), and Fee Exemptions (Includes Current
Eligibility and Proposed Changes). In the 2020 fee rule DHS proposed a
$50 fee for Form I-589, Application for Asylum and for Withholding of
Removal, for when that form is filed with USCIS (``affirmative asylum
applications''). See 8 CFR 106.2(a)(20) (Oct. 2, 2020). The U.S.
Government had never previously charged a fee for an asylum request and
used fees from other form types to fund the operations involved in
processing asylum claims. However, in the 2020 fee rule DHS decided to
impose an asylum fee of $50, and provided that the fee would not be
waivable but exempted an unaccompanied child in removal proceedings
from the fee. 8 CFR 106.2(a)(20) (Oct. 2, 2020). A large number of
commenters on the 2020 fee rule generally opposed charging asylum
applicants a fee. See 85 FR 46844. Commenters stated that asylum
applicants have few economic resources, the few resources that they do
have are necessary for survival, and they are often financially
dependent on their family members. Thus, the commenters stated that the
asylum fee would create an additional burden on asylum applicants and
their families, be detrimental to survivors of torture, and further
endanger asylum seekers' health and safety.
After further consideration of the comments received on the 2020
fee rule's asylum fee, asylum applicants' lack of resources and the
burdens that they face, DHS proposes to remove the $50 fee for Form I-
589. Proposed 8 CFR 106.2(a)(27). DHS currently does not collect the
$50 fee for Form I-589 as a result of the injunction against the 2020
Fee Rule discussed above. While INA sec. 208(d)(3), 8 U.S.C.
1158(d)(3), specifically authorizes a fee for the consideration of an
asylum application in the discretion of the Secretary, it does not
require such fees, and further provides that the Secretary may set
adjudication and naturalization fees in accordance with INA sec.
1356(m), 8 U.S.C. 1356(m). DHS believes that the fee could deter asylum
seekers from seeking protection because of an inability to pay the fee.
Asylum applicants, many of whom arrive in the United States with few
resources and lack financial support, may be unable to pay the fee
(particularly considering that most are unable to legally seek
employment until after the approval of their application for employment
authorization based on their pending asylum application, which cannot
be filed together), or would choose between paying the fee and paying
for basic needs with the few resources they may have arrived with or
can attain before being allowed to legally seek employment in the
United States. DHS recognizes the vulnerable situations of individuals
who apply for asylum and has decided not to impose an asylum
application fee, so as to not make affordability a consideration for a
person requesting asylum.
DHS will also continue to provide a fee exemption for the initial
filing of Form I-765 for persons with pending asylum applications and
those who were granted asylum (asylees). Proposed 8 CFR
106.2(a)(43)(iii)(D) and (G).\150\ In the 2020 fee rule, DHS required
applicants who have applied for asylum or withholding of removal before
EOIR (defensive asylum) or filed Form I-589 with USCIS (affirmative
asylum), to pay the fee for initial filings of Form I-765. See 8 CFR
106.2(a)(32) (Oct. 2, 2020). Previously, USCIS had exempted applicants
with pending asylum applications who are filing their first EAD
application under the 8 CFR 274a.12(c)(8) eligibility category from the
Form I-765 fee if the applicant submitted evidence of a pending asylum
application and followed other instructions. However, in the 2020 fee
rule, DHS determined that continuing to exempt this population from
paying the Form I-765 fee would increase the proposed fee by $10 to
fund the cost of EADs for asylum applicants, and required initial
applicants with pending asylum claims to pay a $490 Form I-765 fee to
keep the fee lower for all fee-paying EAD applicants.
---------------------------------------------------------------------------

\150\ Except for individuals applying under special procedures
pursuant to the settlement agreement reached in American Baptist
Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).
---------------------------------------------------------------------------

Many commenters on the 2020 fee rule opposed the change to charge
asylum applicants for their first Form I-765, Application for
Employment Authorization. 85 FR 46851-46853. The commenters wrote that:
people who cannot work cannot afford to pay their asylum fees and may
work illegally; charging individuals who are not authorized to work to
pay a fee to acquire work authorization is counterintuitive; asylum
seekers are in dire financial situations; requiring a fee for
authorization to work will worsen the already precarious situation of a
vulnerable population; and the fee will act as an unjust deterrent for
asylum seekers. As a result of the economic challenges faced by asylum
seekers, DHS has determined that it agrees that charging asylum seekers
for an initial work authorization application could prevent them from
obtaining lawful employment, and that the EAD fee is unduly burdensome
for asylum seekers. Therefore, DHS proposes to retain the fee exemption
for applicants who have applied for asylum or withholding of removal
before EOIR (defensive asylum) or filed Form I-589 with USCIS
(affirmative asylum) for initial filings of Form I-765. See proposed 8
CFR 106.2(a)(43)(iii)(D) and (G).
As explained below, DHS also proposes that the fee for refugee
travel documents for asylees and LPRs who obtained such status as
asylees will be linked to the DOS fee for a U.S. passport. Proposed 8
CFR 106.2(a)(7)(i) and (ii). DHS also proposes to continue charging a
fee for asylees with pending adjustment of status applications who are
requesting advance parole. Proposed 8 CFR 106.2(a)(7)(iii). Although
asylees and refugees are in some respects similarly situated
populations, certain differences justify DHS's decision not to exempt
asylees from paying the fee for refugee travel documents or advance
parole. Unlike refugees, who are required to apply to adjust status
after they have been physically present in the United States for at
least one year, asylees are not required to apply for adjustment of
status, although they may do so. In addition, because asylees are a
larger population than refugees, DHS determined that transferring to
other applicants and petitioners the costs of adjudicating requests
from asylees for refugee travel documents and advance parole would be
overly burdensome to other fee payers. DHS believes that asylees are
better able to time the filing of Form I-485 for adjustment of status
to LPR or an associated benefit request with their ability to pay the
fees or request a fee waiver.
DHS proposes to continue fee waiver eligibility for asylees filing
Forms I-290B, I-765 for EAD renewal, and I-485. Proposed 8 CFR
106.3(a)(3)(ii)(C) and (E) and (a)(3)(iv)(C). DHS does not propose new
fee exemptions or fee waivers for asylum applicants or asylees in this
rulemaking because most forms used by this population are already fee
exempt or fee waiver eligible. DHS also considered the number of
asylum-based filings made each year and decided that the transfer of
the costs of such filings

[[Page 465]]

to other petitions and applications if these filings were fee exempt
resulted in too excessive a shift to fee payers to justify.
12. Refugees
DHS is continuing to provide a fee exemption for the initial filing
of Form I-765 for persons who were admitted or paroled as refugees.
Proposed 8 CFR 106.3(b)(9)(iii). This long-standing policy is
consistent with Article 17(1) of the 1951 Convention Relating to the
Status of Refugees (as incorporated in the 1967 Protocol Relating to
the Status of Refugees), which states, ``The Contracting State shall
accord to refugees lawfully staying in their territory the most
favorable treatment accorded to nationals of a foreign country in the
same circumstances, as regards the right to engage in wage-earning
employment.'' \151\
---------------------------------------------------------------------------

\151\ Convention Relating to the Status of Refugees, art. 17(1),
July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150. The United States
is not a party to the 1951 Refugee Convention, but the United States
is a party to the 1967 Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, which incorporates
Articles 2 to 34 of the 1951 Convention. See INS v. Stevic, 467 U.S.
407, 416 & n.9 (1984).
---------------------------------------------------------------------------

DHS also proposes to provide a fee exemption for persons admitted
or paroled as refugees who submit Form I-765 to renew or replace their
EAD. Proposed 8 CFR 106.3(b)(9)(iii). Currently, refugees may request a
fee waiver for such renewal and replacement applications. EAD renewal
and replacement filing volume is low, and DHS must expend effort to
adjudicate fee waiver requests, which are generally approved. DHS
believes that exempting all refugee Form I-765 filings is consistent
with the principles of the 1951 Refugee Convention cited above.
DHS further proposes to provide a fee exemption for the filing of
Form I-131, Application for Travel Document, for persons admitted or
paroled as refugees, including LPRs who obtained such status as
refugees in the United States. Proposed 8 CFR 106.3(b)(9)(i). Refugees
are by definition a vulnerable population.\152\ Congress has recognized
that many refugees are more likely than other immigrant populations to
lack economic security and determined that it is in the interests of
the United States to provide them with support and assistance on their
path to self-sufficiency. For example, INA sec. 207(c)(3) specifies
that the public charge ground of inadmissibility in INA sec. 212(a)(4)
does not apply to refugees. And section 412 of the INA, 8 U.S.C. 1522,
authorizes the provision of a variety of benefits and support services
to refugees, including employment training and placement, English
language training, cash assistance, and medical assistance. In light of
these considerations, DHS has historically exempted refugees from
paying fees for most applications and petitions for immigration
benefits, excluding naturalization, for which a fee waiver is
available. DHS now proposes to align Form I-131 with this long-standing
policy. For the same reasons, DHS also proposes to fee exempt the
Application for Carrier Documentation (Form I-131A) for refugees,
persons paroled as refugees (see INA sec. 212(d)(5)(B), 8 U.S.C.
1182(d)(5)(B)), and LPRs who obtained such status as refugees. See 8
CFR 106.3(b)(9)(ii).
---------------------------------------------------------------------------

\152\ See INA sec. 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)
(defining the term ``refugee'' as ``any person who is outside any
country of such person's nationality or, in the case of a person
having no nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion'').
---------------------------------------------------------------------------

13. Person Who Served Honorably on Active Duty in the U.S. Armed Forces
Filing Under INA Sec. 101(A)(27)(K)
An immigrant who has served honorably on active duty in the U.S.
armed forces of the United States after October 15, 1978, after
original lawful enlistment outside the United States (under a treaty or
agreement in effect on October 1, 1991) for a certain period of time
and the spouses and children of such immigrants may be granted special
immigrant status upon recommendation under the executive department.
INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27). These applicants may file
for naturalization under INA sec. 328, 8 U.S.C 1439. USCIS does not
charge a fee to military naturalization applicants because such fees
are prohibited by statute. See INA sec. 328(b)(4), 8 U.S.C. 1439(b)(4).
Other forms for active or former military service members are also
exempt from fees. See, e.g., 8 CFR 103.7(b)(1)(i)(AAA) and (EEE) (Oct.
1, 2020).
On July 2, 2021, Secretary Mayorkas and Secretary of Veterans
Affairs Denis McDonough announced a new initiative to support our
Nation's noncitizen service members, veterans, and the immediate family
members of service members. The initiative recognizes the profound
commitment and sacrifice that service members and their families have
made to the United States and that DHS agencies would review the
policies to remove barriers to naturalization for those eligible, and
improve access to immigration services.\153\
---------------------------------------------------------------------------

\153\ See DHS, VA Announce Initiative to Support Noncitizen
Service Members, Veterans, and Immediate Family Members (July 2,
2021), available at https://www.dhs.gov/news/2021/07/02/dhs-va-announce-initiative-support-noncitizen-service-members-veterans-and-immediate.
---------------------------------------------------------------------------

As part of this initiative on November 19, 2021, USCIS issued
guidance to provide fee exemptions for Form I-131 concurrently filed
with N-400 for applicants who are residing outside the United States
and seeking naturalization.\154\ Because this population submits a low
number of forms, and to be consistent with other fees related to
military applicants, DHS is proposing to codify a fee exemption for
Forms I-131 (parole requests). In addition, DHS is proposing to add fee
exemptions for Forms I-360, I-485, and I-765 (initial request) for
military applicants.
---------------------------------------------------------------------------

\154\ See USCIS Policy Manual, Volume 12, Citizenship and
Naturalization, Part I Military Members and their Families, Chapter
5, Application and Filing for Service Members (INA sections 328 and
329) [12 USCIS-PM I.5], available at https://www.uscis.gov/policy-manual/volume-12-part-i-chapter-5.
---------------------------------------------------------------------------

14. Summary of Proposed Fee Exemptions
The following Table 13A provides a summary of current fee
exemptions under INA sec. 245(l)(7). Table 13B provides a list of
proposed additional fee exemptions, and the impact on forms that no
longer require a fee waiver for these categories of requestors because
they will be fee exempt. Table 13C provides a list of all fee
exemptions and waivers that includes both the current provisions and
the proposed additions.
BILLING CODE 9111-97-P

[[Page 466]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.035

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

\155\ See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T) (T
nonimmigrant status for victims of severe forms of trafficking in
persons).

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

[[Page 467]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.036

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

\156\ See INA sec. 101(a)(15)(U) 8 U.S.C. 1101(a)(15)(U) (U
nonimmigrant status for victims of qualifying criminal activity).
\157\ No initial fee for principals who receive an EAD incident
to status.
\158\ This category includes VAWA self-petitioners and
derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those
otherwise self-petitioning for immigrant classification under INA
sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See
INA sec. 204(a); 8 U.S.C. 1154(a).
\159\ Currently, VAWA self-petitioners may check a box on Form
I-360 requesting a category (c)(31) EAD upon approval of the self-
petition. This EAD is currently fee exempt. If the self-petitioner
does not check this box, they must file a Form I-765 to request work
authorization under 8 CFR 274a.12(c)(14) designation or under 8 CFR
274a.12(c)(9) if applicable. The self-petitioner may also file a
Form I-765 to request a category (c)(31) EAD if not initially
requested on the Form I-360. All self-petitioners and derivatives
filing a renewal or replacement request must file a Form I-765 with
a fee or fee waiver request.

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

[[Page 468]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.037

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

\160\ See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8
U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D).
\161\ See INA sec. 101(a)(51)(D) and (E); 8 U.S.C.
1101(a)(51)(D) and (E). The proposed fee exemption for Form I-765
for these categories includes all initial, renewal, and replacement
EADs filed through final adjudication for adjustment of status.
\162\ See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The
proposed fee exemption for Form I-765 for this category includes all
initial, renewal, and replacement EADs filed through final
adjudication for adjustment of status.

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

[[Page 469]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.038

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

\163\ Also includes children of battered spouses and children of
an LPR or U.S. citizen and parents of battered children of an LPR or
U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4).
\164\ See INA sec. 106; 8 U.S.C. 1105a. The proposed fee
exemption for Form I-765 for these categories includes all initial,
renewal, and replacement EADs. If the abused spouses of A, E-3, G,
and H Nonimmigrants are able to file under another eligible
category, the applicant may be eligible for a fee waiver.
\165\ The fee exemption for Form I-765V for this category
includes all initial, renewal, and replacement EADs.
\166\ Afghan nationals and their derivative beneficiaries
paroled into the United States on or after July 30, 2021 and
applying to adjust status to permanent residence based on
classification as Afghan special immigrants as part of the temporary
Operation Allies Welcome (OAW) program.
\167\ Afghan nationals and their derivative beneficiaries who
were paroled into the United States on or after July 30, 2021. This
is part of the temporary OAW program.
\168\ Afghan nationals and their derivative beneficiaries
paroled into the United States on or after July 30, 2021 who file
Form I-601 associated with Form I-485, if filing as an Afghan
Special Immigrant.

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

[[Page 470]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.039

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

\169\ See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and
1255(l)(7). This category includes applicants and recipients of TPS.
\170\ Note DHS is proposing to end the fee exemption for Form I-
765 initial EAD requests filed by initial TPS applicants under age
14 and over age 65.
\171\ These applicants are eligible for naturalization under INA
sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for
naturalization without lawful permanent residence under INA sec.
329; 8 U.S.C. 1440.

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

[[Page 471]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.040

[[Page 472]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.041

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

\172\ This table includes exemptions and fee waivers that are
required under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7) and other
categories of immigrants for which DHS is proposing additional fee
exemptions. This table includes only those exemptions that DHS is
required to provide under this statute, and it does not include all
USCIS benefit requests or groups for which DHS currently provides or
is proposing to provide an exemption in this rule or by policy. See
regulatory text for all other fee exemptions and fee waivers.
\173\ This column lists all the additional fee exemptions that
are being proposed. DHS would continue to maintain all the fee
exemptions currently provided under Table 13A, column ``Current Fee
Exemptions.''
\174\ This column lists all the fee waivers that would still be
available after some forms will be fee exempt as listed in ``Current
Fee Exemptions'' column.
\175\ See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T) (T
nonimmigrant status for victims of severe forms of trafficking in
persons).
\176\ The proposed fee exemption for T nonimmigrants filing Form
I-765 includes all initial, renewal and replacement EADs filed at
the nonimmigrant and adjustment of status stages.
\177\ See INA sec. 101(a)(15)(U); 8 U.S.C. 1101(a)(15)(U) (U
nonimmigrant status for victims of qualifying criminal activity).

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

[[Page 473]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.042

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

\178\ This category includes VAWA self-petitioners and
derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those
otherwise self-petitioning for immigrant classification under INA
sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See
INA sec. 204(a); 8 U.S.C. 1154(a).
\179\ Under this proposed rule, the category (c)(31) EAD
provided through Form I-360 will continue to be fee exempt. In
addition, all Form I-765s filed for an initial 8 CFR 274a.12(c)(9),
8 CFR 274a.12(c)(14), and an initial category (c)(31) EAD will also
be fee exempt for both self-petitioners and derivatives.
\180\ See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8
U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D).

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

[[Page 474]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.043

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

\181\ See INA sec. 101(a)(51)(D) and (E); 8 U.S.C.
1101(a)(51)(D) and (E). The proposed fee exemption for Form I-765
for these categories includes all initial, renewal, and replacement
EADs filed through final adjudication for adjustment of status.
\182\ See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The
proposed fee exemption for Form I-765 for this category includes all
initial, renewal, and replacement EADs filed through final
adjudication for adjustment of status.
\183\ Also includes children of battered spouses and children of
an LPR or U.S. citizen and parents of battered children of an LPR or
U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4).

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

[[Page 475]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.044

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

\184\ See INA sec. 106; 8 U.S.C. 1105a. The proposed fee
exemption for Form I-765 for these categories includes all initial,
renewal, and replacement EADs. If the abused spouses of A, E-3, G,
and H Nonimmigrants are able to file under another eligible
category, the applicant may be eligible for a fee waiver.
\185\ See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and
1255(l)(7). This category includes applicants and recipients of TPS.

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

[[Page 476]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.045

[GRAPHIC] [TIFF OMITTED] TP04JA23.046

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

\186\ These applicants are eligible for naturalization under INA
sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for
naturalization without lawful permanent residence under INA sec.
329; 8 U.S.C. 1440.
\187\ See INA sec. 101(a)(15)(T); 8 U.S.C. 1101(a)(15)(T)(T
nonimmigrant status for victims of severe forms of trafficking in
persons).

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

[[Page 477]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.047

[[Page 478]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.048

[[Page 479]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.049

[[Page 480]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.050

[[Page 481]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.051

BILLING CODE 9111-97-C

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

\188\ See INA sec. 101(a)(15)(U); 8 U.S.C. 1101(a)(15)(U) (U
nonimmigrant status for victims of qualifying criminal activity).
\189\ This category includes VAWA self-petitioners and
derivatives as defined in INA sec. 101(a)(51)(A) and (B) and those
otherwise self-petitioning for immigrant classification under INA
sec. 204(a)(1). See INA sec. 101(a)(51); 8 U.S.C. 1101(a)(51). See
INA sec. 204(a); 8 U.S.C. 1154(a).
\190\ Under this proposed rule, the category (c)(31) EAD
provided through Form I-360 will continue to be fee exempt. In
addition, all Form I-765s filed for an initial 8 CFR 274a.12(c)(9),
8 CFR 274a.12(c)(14), and an initial category (c)(31) EAD will also
be fee exempt for both self-petitioners and derivatives.
\191\ See INA secs. 101(a)(51)(C) and 216(c)(4)(C) and (D); 8
U.S.C. 1101(a)(51)(C) and 1186a(c)(4)(C) and (D).
\192\ See INA sec. 101(a)(51)(D) and (E); 8 U.S.C.
1101(a)(51)(D) and (E). The proposed fee exemption for Form I-765
for these categories includes all initial, renewal, and replacement
EADs filed through final adjudication for adjustment of status.
\193\ See INA sec. 101(a)(51)(F); 8 U.S.C. 1101(a)(51)(F). The
proposed fee exemption for Form I-765 for this category includes all
initial, renewal, and replacement EADs filed through final
adjudication for adjustment of status.
\194\ Also includes children of battered spouses and children of
an LPR or U.S. citizen and parents of battered children of an LPR or
U.S. citizen under INA sec. 240A(b)(4); 8 U.S.C. 1229b(b)(4).
\195\ See INA sec. 106; 8 U.S.C. 1105a. The proposed fee
exemption for Form I-765 for these categories includes all initial,
renewal, and replacement EADs. If the abused spouses of A, E-3, G,
and H Nonimmigrants are able to file under another eligible
category, the applicant may be eligible for a fee waiver.
\196\ The fee exemption for Form I-765V for this category
includes all initial, renewal, and replacement EADs.
\197\ See INA secs. 244 and 245(l)(7); 8 U.S.C. 1254a and
1255(l)(7). This category includes applicants and recipients of TPS.
\198\ These applicants are eligible for naturalization under INA
sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for
naturalization without lawful permanent residence under INA sec.
329; 8 U.S.C. 1440.
---------------------------------------------------------------------------

C. Request for Comments

DHS welcomes comment on the proposed changes to which categories of
petitioners and applicants are exempt from the fees or which forms
should be fee exempt, the annual and cumulative estimated transfer
cost, requests to which costs should be shifted, and the reason as to
why the particular group should be fee exempt.

VIII. Other Proposed Changes in the FY 2022/2023 Fee Schedule

A. Clarifying Dishonored Fee Check Re-Presentment Requirement and Fee
Payment Method

USCIS is proposing to clarify that it will not redeposit financial
instruments returned as unpayable for a reason other than insufficient
funds. See proposed 8 CFR 103.2(a)(7)(ii)(D). In the FY 2016/2017 fee
rule, DHS amended the regulations regarding how USCIS treats a benefit
request accompanied by fee payment (in the form of check or another
financial instrument) that is subsequently returned as not payable. See
81 FR 73313-73315 (Oct. 24, 2016); 8 CFR 103.2(a)(7)(ii) and
103.7(a)(2). If a financial instrument used to pay a fee is returned as
unpayable after one representment, USCIS rejects the filing and imposes
a standard $30 charge. Id. In the preamble to the FY 2016/2017 fee
rule, DHS stated that, to make sure a payment rejection is the result
of insufficient funds and not due to USCIS error or network outages,
USCIS (through the U.S. Department of the Treasury (Treasury)) will
resubmit rejected payment instruments to the appropriate financial
institution one time. See 8 CFR 103.2(a)(7)(ii)(D). DHS's intent was to
submit only checks that were dishonored due to insufficient funds
because the Treasury check clearance regulations only permit an agency
to redeposit a check that was dishonored due to insufficient
funds.\199\ Although Treasury does not permit redeposit of checks
dishonored for any other reason, some stakeholders have interpreted 8
CFR 103.2(a)(7)(ii)(D) as requiring DHS to redeposit any check that is
returned as unpayable. Several petitioners have had fee payment checks
dishonored because the petitioner (or law firms paying the fee on the
petitioner's behalf) have placed a fraud hold on their checking
account, stopped payment on the check, or the check failed a third-
party validation process. DHS appreciates the concerns about fraudulent
or counterfeit checks and the impacts on petitioners and beneficiaries
when the petitioner or their bank accidently or erroneously stop
payments or dishonor checks. In the few cases where checks to USCIS
have been dishonored due to anti-fraud mechanisms, USCIS has not seen
an

[[Page 482]]

instance where the account was frozen as a result of actual, fraudulent
activity, and the remitting institution has acknowledged its fault or
error in dishonoring the fee checks. Nevertheless, USCIS is not
responsible for ensuring that a petitioner's or financial institution's
check writing procedures do not go awry and allowing resubmission of
correctly rejected requests adds work to an already burdened USCIS
intake system. In addition to most redeposits being impracticable and
in violation of Treasury regulations, the reason DHS provided the check
representment requirement in Sec. 103.2(a)(7)(ii)(D) did not
materialize, because in the almost five years since the requirement was
codified, DHS has rejected no payment because of USCIS error or network
outages. See 81 FR 73314.\200\ Therefore, to comply with the Treasury
regulations, because representment of other dishonored checks is not
permitted and futile, and representment has proven to not be necessary
to protect the public from the Government failings that were feared
when the provision was implemented, DHS is proposing in this rule that
if a check or other financial instrument used to pay a fee is returned
as unpayable because of insufficient funds, USCIS will resubmit the
payment to the remitter institution one time. If the remitter
institution returns the instrument used to pay a fee as unpayable a
second time, USCIS will reject the filing. See proposed 8 CFR
103.2(a)(7)(ii)(D).
---------------------------------------------------------------------------

\199\ See 31 CFR 210.3(b)(1)(i); National Automated Clearing
House Association, 2019 NACHA Operating Rules & Guidelines: The
Guide to the Rules Governing the ACH Network, Subsection 2.5.13.3
(limiting redepositing a check to those that are returned due to
``Not Sufficient Funds,'' ``NSF,'' ``Uncollected Funds,'' or
comparable).
\200\ The final FY 2016/2017 fee rule stated, ``To make sure
that a payment rejection is the result of insufficient funds and not
due to USCIS error or network outages, USCIS (through Treasury) will
resubmit rejected payment instruments to the appropriate financial
institution one time.''
---------------------------------------------------------------------------

In addition, DHS proposes two changes to address stale or expired
checks. First, DHS proposes that that it may reject a request that is
accompanied by a check that is dated more than 365 days before the
receipt date. Proposed 8 CFR 103.2(a)(7)(ii)(D). Second, DHS proposes
that it will not be responsible for financial instruments that expire
before they are deposited and USCIS may reject any filing for which a
required payment cannot be processed due to expiration of the financial
instrument. Proposed 8 CFR 106.1(d).
Currently, USCIS policy is to reject a check that is dated more
than a year before it is submitted. However, that policy is not
codified, and DHS has been sued or threatened with litigation multiple
times when a check that was dated more than a year before it was
submitted was the basis of a rejection that caused the requestor to
miss an important deadline. For example, USCIS has permitted an
applicant to submit Form I-821 after the deadline \201\ and adjudicated
a Form I-485 filed after the applicant's U nonimmigrant status had
expired because the initial, timely filing was rejected because the
applicant submitted a fee check that was more than one year old.\202\
While most personal and business checks do not expire, they become what
is known as ``stale dated'' 6 months after they are written.\203\ In
addition, many business entities provide that their checks expire after
a certain period, such as 90 days, if not cashed, because they are
concerned about the timeliness and accuracy of their accounting records
if checks that they issue are valid for a longer period,
notwithstanding that the Uniform Commercial Code (UCC) provides that a
bank may delay access to the funds from or is not obligated to deposit,
cash, honor, or pay a stale check.\204\ USCIS projects that it will
receive an average of 6,510,442 IEFA non-premium fee payments per
year.\205\ It is important that its requirements for payment
instruments provide certainty and minimize the likelihood of a payment
being dishonored. And, while USCIS has experienced delays in receipting
requests due to the COVID pandemic, many requests have been received
with checks that are very close to the check expiration date.\206\ To
reduce dishonored payments and to alert those who submit fee checks to
USCIS to monitor their expiration dates, DHS proposes to codify its
policy of rejecting 365-day-old checks and checks where the expiration
date on their face has passed to provide requestors with a reasonable
amount of flexibility in case there are delays with their filing.
Proposed 8 CFR 103.2(a)(7)(ii)(D); 106.1(d). Although commercial banks
use a guideline of 6 months, rejecting a check that is dated more than
a year earlier is also consistent with the time limit for a check
issued by the U.S. Treasury. See 31 CFR 245.3(a) (Any claim on account
of a Treasury check must be presented to the agency that authorized the
issuance of such check within 1 year after the date of issuance of the
check or within 1 year after October 1, 1989, whichever is later.).
Rejection of a stale or expired check will not be mandatory, so USCIS
will still have the authority to waive the check date requirements in
exigent circumstances or on a per case basis, such as when surges in
volume reduce USCIS' ability to timely intake requests and deposit
checks. For example, USCIS offered flexibility to lockbox filers whose
initial filings were rejected solely because a filing fee payment that
expired while the benefit request was awaiting processing between Oct.
1, 2020, and April 1, 2021.\207\
---------------------------------------------------------------------------

\201\ See 8 CFR 244.17(a) (``Applicants for periodic re-
registration must apply during the registration period provided by
USCIS.'').
\202\ See 8 CFR 245.24(b)(2)(ii) (requiring the applicant to
hold U nonimmigrant status at the time of application).
\203\ A bank is under no obligation to a customer having a
checking account to pay a check, other than a certified check, which
is presented more than 6 months after its date, but it may charge
its customer's account for a payment made thereafter in good faith.
See UCC 4-404 (2002).
\204\ Id. See also Aliaga Medical Center, S.C. v. Harris Bank
N.A., 21 NE3d 1203 (IL App (1st), Nov. 10, 2014) (holding that check
expiration is generally governed by the account agreement between
the bank and customer and the preprinted term ``void'' or phrase
``void after 90 days,'' on a check does not mean that the check
cannot be presented, paid, and accounted for as a check in the
normal course of the account's regular operation).
\205\ See section V.B.1.b, Fee-Paying Volume, of this preamble.
\206\ See, e.g., USCIS Lockbox Updates, at https://www.uscis.gov/news/alerts/uscis-lockbox-updates (Jan. 8, 2021).
\207\ See USCIS, ``USCIS Announces Lockbox Filing
Flexibilities,'' available at https://www.uscis.gov/news/alerts/uscis-announces-lockbox-filing-flexibilities (June 10, 2021).
---------------------------------------------------------------------------

B. Payment Method

Currently, USCIS uses the following payment methods:
For forms accepted at USCIS lockboxes \208\--Check, money
order, or credit card.\209\
---------------------------------------------------------------------------

\208\ Lockboxes that specialize in the intake and deposit of
multiple payment types receive about 53 percent of all USCIS
filings.
\209\ USCIS recently launched a pilot program to test the
acceptance of credit cards for payment of fees for benefit requests
filed at service centers. See USCIS, ``USCIS Announces Pilot Program
for Credit Card Payments Using Form G-1450 When Filing Form I-485,''
available at https://www.uscis.gov/news/alerts/uscis-announces-pilot-program-for-credit-card-payments-using-form-g-1450-when-filing-form-i-485 (June 2, 2021).
---------------------------------------------------------------------------

For online filing--Pay.gov payment submission which
includes credit cards, debit cards and Electronic Funds Transfer using
routing and account numbers.
For fees paid at a field office--Pay.gov only.
For immigrant fees paid by immigrants seeking entry into
the United States with a visa--Pay.gov only.
DHS also proposes to codify that USCIS may require that certain
fees be paid using a certain payment method or that certain fees cannot
be paid using a particular method. Proposed 8 CFR 106.1(b). For
example, USCIS may require that a request be submitted by using
Pay.gov, a secure portal that transmits an applicant's payment
information directly to the U.S. Treasury for processing, or may
preclude the use of certain payment

[[Page 483]]

types, such as cashier's check and money orders for the payment of a
particular form or when payments are made at certain offices. The
proposed change provides that the payment method will be described in
the form instructions (including for online filing) or by individual
notice (a bill, invoice, appointment confirmation, etc.); thereby,
requestors will be clearly notified of any limitations on the payment
method for the request they are filing. However, this proposed change
provides the authority prospectively, and USCIS is proposing no forms
changes with this rule that will impose any specific limits on
acceptable payments on the date this rule would take effect. The
payment method for a particular form will be changed in the future only
after the subject form instructions are revised in accordance with the
Paperwork Reduction Act (PRA).
For the 2020 fee rule, commenters wrote that requiring online or
electronic payments would restrict immigration benefits for individuals
who lack computer and internet access, that it is important to permit
cashier's checks and money orders because they are available to
individuals without banking services such as a credit card, and that
many immigrant households lack access to checking and savings accounts
or they are unbanked or underbanked. 85 FR 46877. DHS has determined
that any person who can purchase a cashier's check or money order from
a retailer can similarly purchase a prepaid debit card that can be used
to pay their benefit request fee using USCIS Form G-1450 or the Pay.gov
online payment platform. In addition, filers may split the fees between
more than one credit card, and the credit card does not have to be the
applicant's if the owner of the credit card authorizes its use.
Therefore, DHS believes that requiring the use of a check, credit, or
debit card will not prevent applicants or petitioners from paying the
required fees. While DHS does not permit the use of gift cards that
cannot be reloaded, reloadable debit cards are available for purchase
at most convenience, pharmacy, department, and grocery stores, or
online.\210\ In addition, resources such as libraries offer free online
services, access to information, and computers that the public may use
to access forms and complete, print or submit them. Nevertheless, in
evaluating future changes to acceptable means of payment for each
immigration benefit request, DHS will consider the availability of
internet access and different means of payment to the affected
populations.
---------------------------------------------------------------------------

\210\ See, for example, ``Visa Prepaid Cards Easy to use and
reloadable, Visa Prepaid cards go everywhere you do. No credit check
or bank account needed.'' https://usa.visa.com/pay-with-visa/find-card/get-prepaid-card (last viewed June 15, 2021).
---------------------------------------------------------------------------

Lockboxes that specialize in the intake and deposit of multiple
payment types receive about 53 percent of all USCIS filings. However,
the requirements and circumstances for the filing of some requests do
not permit lockbox submission and intake, and the request must be filed
at a particular office or in person. Various offices, such as field
offices, embassies, and consulates, are limited in the method of
payment that they can receive or process. Additionally, certain payment
methods, such as checks or cash, require time-intensive procedures for
cashiers and their supervisors to input, reconcile, and verify their
daily receipts and deposits. Generally, Federal agency offices must
deposit money that they receive on the same day that it is received.
See 31 U.S.C. 3720(a); 31 CFR 206.5; U.S. Treasury, ``Treasury
Financial Manual'' Vol. 1, Part 5, Chapter 2000, Section 2055.\211\
There are additional requirements and guidance for timely record
keeping and redundancy in personnel that similarly increase workload
and processing costs. See 31 U.S.C. 3302(e); U.S. Treasury, ``Treasury
Financial Manual'' Vol 1, Part 5, Chapter 2000, Section 2030; see also
GAO, GAO-14-704G ``Standards for Internal Control in the Federal
Government'' (2014).\212\ The time that USCIS spends complying with
payment processing requirements could be used to adjudicate cases. This
proposed change to codify that fees must be paid using the method that
USCIS prescribes, as provided in the form instructions or by individual
notice, would also permit USCIS to reduce administrative burdens and
processing errors associated with fee payments.
---------------------------------------------------------------------------

\211\ Agencies may accumulate deposits less than $5,000 until
they reach $5,000 or a given Thursday. U.S. Treasury, ``Treasury
Financial Manual'' Vol 1, Part 5, Chapter 2000, https://tfm.fiscal.treasury.gov/v1/p5/c200.html.
\212\ Principle 10, Design Control Activities, states that
management should control information processing and segregation of
duties to reduce risk, and it should correctly and promptly record
transactions. GAO, ``Standards for Internal Control in the Federal
Government'' (Sept. 10, 2014), https://www.gao.gov/assets/670/665712.pdf.
---------------------------------------------------------------------------

C. Non-Refundable Fees

Currently, USCIS filing fees generally are non-refundable and must
be paid when the benefit request is filed. See 8 CFR 103.2(a)(1). DHS
is proposing to clarify that fees are non-refundable regardless of the
result of the immigration benefit request or how much time passes
between USCIS' receipt of the request and completion of the
adjudication process.\213\ As previously discussed, DHS is authorized
to establish fees to recover the costs of providing USCIS adjudication
and naturalization services. See INA sec. 286(m) and (n); 8 U.S.C.
1356(m) and (n). Although fees are set to recover the cost of
processing an immigration benefit request, they must be paid in advance
of the request being processed. Therefore, fees are due at the time of
filing and are required in order for USCIS to receipt the request and
issue a receipt date. See 8 CFR 103.2(a)(7)(ii)(D). A benefit request
will be rejected if it is not submitted with the correct fee(s), and
the fee is not refundable, regardless of how much time is required to
complete adjudication or the decision that USCIS makes on the case.
---------------------------------------------------------------------------

\213\ In USCIS parlance, rejection of a receipt happens in the
initial filing stage. USCIS provides a receipt notice for accepted
requests and a rejection notice for rejected requests. See 8 CFR
103.2(a)(7). For example, Form I-797C, Notice of Action, will state
if a request was accepted or rejected. A denial, on the other hand,
is a decision that the request is not eligible for immigration
benefits for which it was filed after adjudication. Fees are not
returned when a request is denied.
---------------------------------------------------------------------------

Because fees are non-refundable, DHS further proposes to clarify
that fees paid to USCIS using a credit card are not subject to dispute,
chargeback, forced refund, or return to the cardholder for any reason
except at the discretion of USCIS. USCIS continues to expand the
acceptance of credit cards for the payment of USCIS fees. The increased
acceptance of credit cards for the payment of USCIS fees has resulted
in a sizeable increase in the number of disputes filed with credit card
companies challenging USCIS' retention of the fee. Disputes are
generally filed by requestors whose request was denied, who have
changed their mind about the request, or assert that the service was
not provided or was unreasonably delayed. USCIS records show that
credit card companies generally side with their cardholders in these
disputes and they determine that USCIS fails to adequately warn the
cardholder that the fee is not refundable and due regardless of the
result of the case or the time required to adjudicate it.\214\ In those
instances, USCIS has not received payment for adjudication of the
request.
---------------------------------------------------------------------------

\214\ In FY 2020, credit card issuers revoked the fee from USCIS
in 855 of 1,182 disputes filed, or roughly 72 percent.
---------------------------------------------------------------------------

When USCIS performs services for which a fee has not been paid,
such as when the fee is charged-back by a credit card company, the
costs incurred must

[[Page 484]]

be funded by other fee payers. As the dollar amount of fees paid with
credit cards continues to increase, an increase in the number of credit
card disputes and chargebacks has the potential to have a significant
negative fiscal effect on USCIS. Therefore, DHS is proposing to provide
that fees paid to USCIS for immigration benefit requests will not be
refunded regardless of the result of the benefit request or how much
time the adjudication requires, and that fees paid to USCIS using a
credit card are not subject to dispute by the cardholder or charge-back
by the issuing financial institution. See proposed 8 CFR 103.2(a)(1); 8
CFR 106.1(e). If the institution that issues the credit card rescinds
the payment of the fee to USCIS, USCIS may reject the request if
adjudication is not complete, or revoke the approval or convert the
denial to rejection, and invoice the responsible party (applicant,
petitioner, or requestor) and pursue collection of the unpaid fee in
accordance with 31 CFR parts 900 through 904 (Federal Claims Collection
Standards) if the adjudication is complete.\215\
---------------------------------------------------------------------------

\215\ USCIS may also prohibit the payment of fees using a credit
card from a financial institution that routinely rescinds fee
payments due to disputes.
---------------------------------------------------------------------------

D. Eliminating $30 Returned Check Fee

DHS also proposes to amend its regulations to remove the $30 charge
for dishonored payments. See 8 CFR 103.7(a)(2)(i) (Oct. 1, 2020). USCIS
data indicate that the cost of collecting the $30 fee outweighs the
benefits to the Government derived from imposing and collecting the
fee. For example, in FY 2016, USCIS collected a total of $416,541 from
the $30 returned check fee while the financial service provider billed
$508,770 to collect the $30 fee. In FY 2020, USCIS recovered only
$199,829 from the returned check fee. Although USCIS no longer
discretely tracks the costs associated with processing returned checks,
USCIS is at a net loss when processing returned checks. USCIS also
bears the cost and time of processing the returned check. Furthermore,
USCIS does not retain the $30 fee for deposit into the IEFA with other
immigration benefit request fees. USCIS deposits the fee in Treasury's
general fund; thus the $30 fee does not provide revenue to USCIS. As
such, USCIS would not benefit from DHS proposing changes to this fee.
Although agencies may prescribe regulations establishing the charge
for a service or thing of value provided by the agency \216\ Federal
agencies are not required to impose fees as a general matter, nor does
DHS or USCIS have a specific statutory authorization or requirement to
do so. Therefore, DHS is not required to charge a returned check fee.
Based on the cost to USCIS and that the bad check fees add nothing to
USCIS revenue, DHS proposes to remove the $30 fee from regulations.
---------------------------------------------------------------------------

\216\ See 31 U.S.C. 9701.
---------------------------------------------------------------------------

E. Changes to Biometric Services Fee

1. Incorporating Biometric Activities Into Immigrant Benefit Request
Fees
DHS proposes to incorporate the biometric services cost into the
underlying immigration benefit request fees based on the applicable
biometric services for each benefit request and the associated costs as
estimated in the ABC model. Currently, a separate $85 biometric
services fee may apply depending on the immigration benefit request
\217\ or other circumstances. See 8 CFR 103.7(b)(1)(i)(C) (Oct. 1,
2020). USCIS currently provides web content, form instructions, and
other information to help individuals assess whether they need to pay
the biometric services fee. USCIS rejects an application, petition, or
request that fails to pay the separate biometric services fee, if it
applies. See 8 CFR 103.17(b) (Oct. 1, 2020). DHS proposes to
incorporate the cost of biometric services into the underlying
immigration benefit request fees using its ABC model to simplify the
fee structure, reduce rejections of benefit requests for failure to
include a separate biometric services fee, and better reflect how USCIS
uses biometric information.
---------------------------------------------------------------------------

\217\ For a quick reference of the immigration benefit requests
that currently require biometric services with the initial
submission, see USCIS, Form G-1055, Fee Schedule, available at
https://www.uscis.gov/g-1055.
---------------------------------------------------------------------------

DHS has broad statutory authority to collect biometric information
when such information is ``necessary'' or ``material and relevant'' to
the administration and enforcement of the INA. See, e.g., INA secs.
103(a), 235(d)(3), 264(a); 8 U.S.C. 1103(a), 1225(d)(3), 1304(a). The
collection, use, and reuse of biometric data are integral to identity
management, criminal background checks, investigating and addressing
national security concerns, and maintaining program integrity.
In previous fee rules, USCIS evaluated the biometric activity cost
as a single biometric services fee separate from the underlying
application, petition, or request. In the FY 2016/2017 fee review,
USCIS called the activity Perform Biometric Services. See 81 FR 26913.
USCIS clarified that persons filing a benefit request may be required
to submit biometrics or be interviewed and pay the biometric services
fee. See 81 FR 26917 and 81 FR 73325. For many years, there has been a
single biometric services fee that includes four separate costs:
FBI Name Checks;
FBI fingerprints;
Application Support Center (ASC) contractual support; and
Biometric service management overall, including Federal
employees at the ASC locations.
In the FY 2022/2023 fee review, USCIS identified each of these four
costs as distinct activities in the ABC model. These four activities
replace the single biometric activity that USCIS used in previous fee
reviews.\218\ USCIS used volume estimates to allocate these costs to
the proposed immigration benefit requests to which they generally
apply. The biometric volume estimates were specific to the projected
workload for FBI Name Checks, FBI fingerprints, and contractual support
at the ASC locations. In most cases, these estimates used the average
proportion of workload for each immigration benefit request. The data
on ASC Production and FBI Name Checks are from FY 2015 to FY 2017. The
FBI Fingerprints data used FY 2016 to FY 2018. While the information
does not cover the most recent years, USCIS believes it is the most
appropriate information to use for this calculation because it reflects
biometric collection rates before the pandemic and before increased
collection of biometrics for certain populations. For example, the data
excludes higher biometric service rates for Form I-539 after a 2019
form revision.\219\ USCIS temporarily suspended biometric collection
for Form I-539 during the pandemic.\220\ Thus, the information
considered will more closely reflect the annual volume of biometrics
submissions that USCIS expects during FY 2022/2023. These proportions
of each biometric service to receipts can vary, because there is not
always a one-to-one relationship between a specific benefit request and
a biometric service. For example, USCIS may not require submission of

[[Page 485]]

biometrics if it resubmits existing, stored biometric information to
the FBI. As another example, some immigration benefit requests, like
adoption petitions and applications, require that all adults in a
household submit biometric information. See, e.g., 8 CFR
204.310(a)(3)(ii) and (b). As such, a single adoption petition or
application may require more than one adult to submit biometric
information. Using biometric volumes specific to individual biometric
activities enables USCIS to better forecast biometric costs and
attribute them to specific benefit requests. DHS proposes to
incorporate biometric costs into IEFA immigration benefit request fees
by using this biometric activity-specific information in the proposed
fees. See proposed 8 CFR 106.2.
---------------------------------------------------------------------------

\218\ The single biometric service activity was called Perform
Biometric Services in the FY 2016/2017 fee review. See 81 FR 26913-
26914. Previously, USCIS called the activity Capture Biometrics. See
75 FR 33459 (June 11, 2010) and 72 FR 4897 (Feb. 1, 2007).
\219\ See USCIS, ``UPDATE: USCIS to Publish Revised Form I-539
and New Form I-539A on March 8'' available at https://www.uscis.gov/news/alerts/update-uscis-to-publish-revised-form-i-539-and-new-form-i-539a-on-march-8 (last updated March 5, 2019).
\220\ See USCIS, ``USCIS Temporarily Suspends Biometrics
Requirement for Certain Form I-539 Applicants'' available at https://www.uscis.gov/news/alerts/uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants (last updated May 13,
2021).
---------------------------------------------------------------------------

The proposed changes in this rule may assist USCIS as it shifts to
enterprise-wide person-centric identity management. A person-centric
view of the data allows adjudicators to see relevant information for an
individual across multiple benefits requests and systems. USCIS aims to
improve how it acquires, stores, manages, shares, and uses identity
data--making all relevant information accessible and usable in support
of adjudications. For example, if USCIS modifies the types of
background checks conducted, then DHS may propose to increase the fee
as appropriate for the affected immigration benefit requests. This
approach may ensure that the affected customers would pay the
appropriate fee rather than pass the cost burden of all other biometric
services to other unrelated customers.
USCIS forecasts biometric workload volumes by immigration benefit
request type in order to assign biometrics costs to the appropriate
immigration benefit request. Assigning costs to the underlying
immigration benefit request type may reduce the administrative burden
on USCIS to administer the separate fee and make it easier for
applicants, petitioners, and beneficiaries to calculate the total
payment that is due. However, USCIS proposes to retain the separate
biometric services fee for specific workloads, as described in the next
section.
2. Retaining the Separate Biometric Services Fee for Temporary
Protected Status
DHS has excluded from USCIS' ABC model for this proposed rule the
costs and revenue associated with TPS, consistent with the previous fee
rule. See 81 FR 73312-73313. In addition, as noted above, DHS proposes
generally to eliminate a separate biometric services fee and fund
biometric services from the revenue received from the underlying
immigration benefit request fees. However, DHS proposes to retain a
separate biometric services fee for TPS. See proposed 8 CFR
106.2(a)(48)(iii).
While the TPS registration fee is capped by INA sec. 244a(c)(1)(B),
8 U.S.C. 1254a(c)(1)(B) at $50, DHS has specific statutory authority to
collect ``fees for fingerprinting services, biometric services, and
other necessary services'' when administering the TPS program. See 8
U.S.C. 1254b. USCIS collects biometrics for TPS registrants. USCIS
requires certain TPS initial applicants and re-registrants to pay the
biometric services fee in addition to the fees for Form I-821,
Application for Temporary Protected Status, and for Form I-765,
Application for Employment Authorization, if they want an employment
authorization document. See Instructions for Form I-821. The model
output of other fees indicates that the $50 amount provided by statute
does not recover the full cost of adjudicating these benefit requests.
To reduce the costs of TPS that USCIS must recover from fees
charged to other immigration benefit requests, DHS proposes to require
a $30 biometric services fee for TPS initial applications and re-
registrations. See proposed 8 CFR 106.2(a)(48)(iii). As stated
previously, while DHS follows OMB Circular A-25, we are not required to
set specific fees at the costs of the benefit request or adjudication
or naturalization service for which the fee is being charged.
Nevertheless, DHS based the proposed $30 biometric services fee on the
direct costs of collecting, storing, and using biometric information
for TPS initial applications and re-registrations. Currently, USCIS
pays approximately $11.25 to the FBI for fingerprinting results. USCIS
calculated that biometric collection, storage, and use at an ASC costs
approximately $19.50. These same ASC and FBI rates apply to TPS and all
other requests that use these services. The sum of these costs is
approximately $31. DHS rounded the proposed fee to the nearest $5
increment, similar to other IEFA fees, making the proposed fee $30. The
proposed fee is less than the current $85 biometric services fee
because the current fee includes indirect costs. The FY 2016/2017 fee
rule held the biometric services fee to $85, which has not changed
since the FY 2010/2011 fee rule.
3. Executive Office for Immigration Review Biometric Services Fee
Similarly, DHS is maintaining the current requirement that
applicants filing certain requests with EOIR \221\ submit a biometric
services fee. See proposed 8 CFR 103.7(a)(2). DHS, including USCIS,
handles all aspects of biometrics collection for EOIR and conducts
background security checks for individuals in immigration
proceedings.\222\ This fee is necessary to recover the costs USCIS
incurs performing that service for EOIR. When individuals in
immigration proceedings before EOIR seek to file an application for
relief or protection from removal with the immigration court they are
instructed to pay any applicable biometrics and application fees to
DHS. See 8 CFR 1103.7(a)(3).\223\ As previously explained, while DHS
proposes to incorporate the costs of biometric services into its
underlying immigration benefit request fees, DHS has no authority to
change the amounts it receives from any EOIR fees to recover the costs
it incurs for biometric services (which includes background checks).
---------------------------------------------------------------------------

\221\ EOIR is a component of the DOJ and includes the Office of
the Director, the Board of Immigration Appeals, the Office of the
Chief Immigration Judge, the Office of the Chief Administrative
Hearing Officer, the Office of Policy, and other staff as the
Attorney General or the Director may provide. See 8 CFR 1003.0.
USCIS provides intake services for several requests filed with, and
adjudicated by, EOIR, for which biometrics may be required.
\222\ Guidance is available at ``Immigration Benefits in EOIR
Removal Proceedings,'' at https://www.uscis.gov/laws/immigration-benefits-eoir-removal-proceedings (last updated Aug. 5, 2020).
\223\ This regulation provides that, except as provided in 8 CFR
1003.8, EOIR does not accept fees, and that fees relating to EOIR
proceedings are paid to DHS.
---------------------------------------------------------------------------

Under this proposed rule, DHS proposes to adjust the biometric
services fee for those requests filed with and processed by USCIS. DHS
proposes to use the same $30 fee using the same estimates as described
for the proposed TPS biometrics fee above. Consequently, DHS proposes a
biometric services fee of $30 for certain forms for which it performs
intake and biometrics services on behalf of EOIR. See proposed 8 CFR
103.7(a)(2).

F. Naturalization and Citizenship-Related Forms

Aside from updating the fees for naturalization and citizenship-
related forms, DHS proposes to continue offering fee waivers for the
naturalization forms. See section VI.E of this preamble. For a general
discussion on how fee waivers, limited fee increases, and fee
exemptions affect proposed fees, see section IV of this preamble.
The fee-paying unit costs represent the estimated cost per fee-
paying applicant as calculated in the USCIS

[[Page 486]]

ABC model.\224\ However, as to Forms N-565 and N-600K, both the current
fees and the proposed fees are less than the estimated cost (fee-paying
unit cost) for each naturalization form. For example, the current fee
for Form N-400 is $231 less than the fee-paying unit cost estimated in
the FY 2016/2017 fee rule. See Table 14. The proposed fee for Form N-
400 is $296 less than the estimated FY 2022/2023 fee-paying unit cost.
Id. As such, while DHS proposes to increase the fee for Form N-400, DHS
likewise proposes to recover a smaller percentage of the estimated cost
for adjudicating Form N-400 than it does in its current fee structure.
If the two difference columns in Table 14 are negative, then DHS
proposes to maintain the current practice by keeping the proposed fee
below the estimated cost. If the two difference columns are positive,
then DHS proposes to recover more than full cost in order to fund
operations and policy objectives, like offering fee waivers and
charging less than full cost for other naturalization fees.
---------------------------------------------------------------------------

\224\ For more information, see the FY Immigration Examinations
Fee Account Fee Review Supporting Documentation (supporting
documentation).
---------------------------------------------------------------------------

DHS further proposes separate online and paper fees for some
benefit types. Proposed online filing fees are lower than proposed
paper filing fees, when available. See section VIII.G of this preamble.
However, DHS does not propose separate online and paper filing fees for
naturalization services because the proposed naturalization fees are
based on the current fees instead of ABC model results. Specifically,
as a general matter, the proposed fees are approximately 18 percent
more than the current fees, based on a calculation described in section
V.B.3 of this preamble. However, for Forms N-565 and N-600K, the
proposed fees are below the estimated cost from the ABC model, thus DHS
proposes no discount for online filing of the N-forms.
[GRAPHIC] [TIFF OMITTED] TP04JA23.052

1. Application for Naturalization (Form N-400) Fee
DHS proposes to increase the fee for Form N-400, Application for
Naturalization, from $640 to $760, a $120 or 19 percent increase. See 8
CFR 103.7(b)(1)(i)(BBB) (Oct. 1, 2020); proposed 8 CFR 106.2(b)(4).
Most naturalization applicants pay an additional $85 biometric services
fee, making the current total fees for Form N-400 total $725. This rule
proposes to add the cost of biometric services to the underlying form
fee. See section VIII.E of this preamble. As such, the proposed fee for
Form N-400 is only $35 or approximately 5 percent more than the current
Form N-400 and biometric service fees that most applicants currently
pay. For comparison, the inflation since the current fees became
effective is approximately 19.75 percent.\225\ If DHS adjusted the Form
N-400 and biometric services fees by

[[Page 487]]

inflation, then the proposed fees would total $865, $140 more than the
current fees for Form N-400.\226\ DHS provides this inflation-adjusted
fee amount only as a point of comparison.
---------------------------------------------------------------------------

\225\ Current fees became effective on Dec. 23, 2016. See 81 FR
73292. The consumer price index for all urban consumers (CPI-U) was
241.432 in Dec. 2016 and 289.109 in Mar. 2022. The change in the
Index over these two periods was 47.68 or 19.75 percent. See U.S.
Department of Labor, Bureau of Labor Statistics, All Urban Consumers
(CPI-U) tables, available at https://data.bls.gov/timeseries/CUUR0000SA0. DHS has not recently adjusted IEFA fees by CPI-U
inflation, but provides this figure as a point of comparison.
\226\ The inflation adjusted amounts using this example would be
as follows: N-400: $640 multiplied by 1.1975, which is approximately
$766.38; biometric services fee: $85 multiplied by 1.1975, which is
approximately $101.79. DHS rounds fees to the nearest $5. Rounded to
the nearest $5, the inflation adjusted fees would be $765 and $100,
totaling $865.
---------------------------------------------------------------------------

Prior fee rules shifted a portion of the Form N-400 cost to other
fee-paying immigration benefit requestors, and DHS proposes to maintain
that approach. In the FY 2010/2011 and the FY 2016/2017 fee rules, the
Form N-400 fee was set below the ABC model output; in other words, the
fee was less than the estimated cost per fee-paying receipt. The FY
2010/2011 fee rule held the fee to $595, the amount set in the FY 2008/
2009 fee rule. See 75 FR 58975. The FY 2016/2017 fee rule limited the
fee to only $640, a $45 or eight percent increase. See 81 FR 73307.
The FY 2010/2011 proposed rule explained that holding the fee for
the Form N-400 to the FY 2008/2009 fee raised all other proposed fees
by approximately $8 each. See 75 FR 33462 (June 11, 2010). For DHS to
recover the full cost of adjudicating the Form N-400, the FY 2010/2011
proposed fee would have been $655, a $60 or roughly a 10 percent
increase. See 75 FR 33462-33463. In the FY 2016/2017 fee rule
supporting documentation, USCIS estimated that each Form N-400 may cost
$871 to complete, plus the cost for biometric services of $75, for a
total of $946.\227\ In this proposed rule, the estimated cost of Form
N-400, including biometrics, is $1,003 when filed online and $1,135
when filed on paper. If DHS were to maintain the current $640 fee, then
all other proposed fees would increase by an additional average $12.
---------------------------------------------------------------------------

\227\ See the Model Output column of Appendix Table 4: Final
Fees by Immigration Benefit Request in the docket of the FY 2016/
2017 fee rule. The model output is the projected total cost from the
ABC model divided by projected fee-paying volume. It is only a
forecast unit cost (using a budget) and not the actual unit cost
(using spending from prior years). USCIS does not track actual costs
by immigration benefit request. See Appendix VI of the supporting
documentation included in this docket for more information.
---------------------------------------------------------------------------

In crafting prior fee rules, DHS reasoned that setting the Form N-
400 fee at an amount less than its estimated costs and shifting those
costs to other fee payers was appropriate in order to promote
naturalization and immigrant integration.\228\ In the 2020 fee rule,
DHS increased the fee for Form N-400, Application for Naturalization,
from $640 to $1,170. See 8 CFR 103.7(b)(1)(i)(BBB); 8 CFR 106.2(b)(3)
(Oct. 2, 2020). DHS determined that shifting costs to other applicants
in the manner that it had in previous fee rules was ``not equitable''
given the significant increase in Form N-400 filings in recent years.
See 84 FR 62316. Therefore, to mitigate the fee increase of other
immigration benefit requests and to emphasize the beneficiary-pays
principle, DHS did not limit the Form N-400 fee and set a $1,170 fee to
recover the full cost of adjudicating the Form N-400, as well as a
proportion of costs not recovered by other forms for which fees are
limited or must be offered a waiver by statute. As stated earlier, DHS
proposes to shift away from emphasizing the beneficiary-pays principle
and return towards the historical balance between the beneficiary-pays
and ability-to-pay principles. DHS has determined that shifting costs
to other applicants in this manner is rational considering the
significant value that the United States obtains from the
naturalization of new citizens. Many commenters on the 2020 fee rule
stated that the fee would deter eligible applicants, and cited peer-
reviewed studies indicating that cost can be a prohibitive barrier for
would-be naturalization applicants. DHS is committed to promoting
naturalization and immigrant integration and making sure that
naturalization is readily accessible. Thus, DHS proposes setting the
Form N-400 fee at an amount less than its estimated costs and shifting
those costs to other fee payers using the cost reallocation
methodology.\229\ Therefore, DHS proposes to limit the Form N-400 fee
at $760 to partially recover the full cost of the Form N-400 and
biometrics services while promoting naturalization and integration. If
the full costs of administering USCIS programs to be recovered under
this rule decrease due to increases in revenue or gains in efficiency
between this proposed rule and the final rule, DHS will consider using
those cost reductions in to further reduce the Form N-400 fee,
considering the value of naturalization and immigrant integration, or
to reduce other fees based on policy considerations.
---------------------------------------------------------------------------

\228\ See, for example, 75 FR 33461; 81 FR 26916.
\229\ Based on filing volume trends in recent years, USCIS
forecasts an increase of 62,165 Form N-400 applications, nearly a 10
percent increase from the FY 2016/2017 fee rule forecast. See Table
7, Workload Volume Comparison.
---------------------------------------------------------------------------

2. Request for Reduced Fee (Form I-942)
In addition to updating the Form N-400 fee waiver requests, as
previously explained, DHS proposes to keep the reduced fee option for
those naturalization applicants with family incomes not more than 200
percent of the FPG. See 8 CFR 103.7(b)(1)(i)(BBB)(1) (Oct. 1, 2020).
The current N-400 reduced fee is $320 plus the $85 biometrics fee. The
proposed N-400 reduced fee is $380, a $60 or approximately 19 percent
increase from the current $320 fee but less than the current total cost
($405) with added $85 separate biometrics fee. See proposed
106.2(b)(4)(ii). Like the proposed Form N-400 fee, the proposed reduced
fee is a limited 18 percent increase from the current fee ($320),
rounded to the nearest $5. See Section V.B.3 of this preamble. Like
most proposed fees, it includes the cost of biometric services. See
section VIII.E. of this preamble. However, the biometric services fee
was not part of the calculation for the proposed fee. DHS calculated
the proposed fee for the reduced fee option the same way as the full
fee option, as described in section V.B.3 of this preamble.
Currently, qualifying applicants pay a fee of $320 plus an
additional $85 for biometric services, for a total of $405. To qualify
for a reduced fee, the eligible applicant must submit Form I-942,
Request for Reduced Fee, along with their Form N-400. Form I-942
requires the names of everyone in the household and documentation of
the household income to determine if the applicant's household income
is greater than 150 and not more than 200 percent of the FPG.
DHS eliminated the Form I-942 and reduced fee in the 2020 fee rule
to recover the estimated full cost for naturalization services and to
reduce the administrative burden on the agency to process the Form I-
942. See 84 FR 62317; 85 FR 46860. Commenters on the change wrote that
eliminating the reduced fee would make it difficult for immigrants with
income between 150 percent and 200 percent of the poverty level to
afford citizenship. DHS acknowledges that eliminating the reduced fee
for Form N-400 would block people from receiving a reduced fee,
increase the number of people who are required to pay the full Form N-
400 fee, and could result in fewer people applying for naturalization.
DHS implemented this reduced fee option in the FY 2016/2017 fee
rule to limit potential economic disincentives that some eligible
naturalization applicants may face when deciding whether to seek U.S.
citizenship. See 81 FR 73307. DHS only proposes that the income level
for the reduced fee is not limited to start at 150 percent of the

[[Page 488]]

FPG. Instead, any applicant who has an income under 200 percent of the
FPG can request a naturalization application with a reduced fee if
eligible.\230\ DHS had originally proposed the reduced fee option for
low-income applicants in support of 2015 immigration integration
policies and the USCIS mission to support aspiring citizens.\231\ The
reduced fee helps ensure that many immigrants whose goal it is to apply
for naturalization are not unnecessarily limited by their economic
means. Other fee payers are required to bear the cost of the reduced
fee, but the importance of naturalization justifies the slight shift of
burden.\232\ Similarly, in keeping the reduced fee for the
naturalization application, DHS is supporting and complying with
Executive Order 14012 to reduce barriers and promote accessibility to
the immigration benefits that it administers. See 86 FR 8277 (Feb. 2,
2021) (E.O. 14012). Although receipts of I-942 have remained relatively
low, the overall lower cost for a reduced N-400 application may
increase access to naturalization applications.
---------------------------------------------------------------------------

\230\ In 2018, Congress also encouraged USCIS ``to consider
whether the current naturalization fee is a barrier to
naturalization for those earning between 150 percent and 200 percent
of the FPG, who are not currently eligible for a fee waiver.'' H.
Rep. 115-948 at 61.
\231\ See The White House Task Force on New Americans,
``Strengthening Communities by Welcoming All Residents'', at 28-29
(2015), available at https://obamawhitehouse.archives.gov/sites/default/files/docs/final_tf_newamericans_report_4-14-15_clean.pdf.
\232\ DHS previously stated that adjusting fee levels based on
income would be administratively complex and would require higher
costs to administer. See 75 FR 58971. Specifically, in 2010, DHS
stated that a tiered fee system would impose an unreasonable cost
and administrative burden, because it would require staff dedicated
to income verification and necessitate significant information
system changes to accommodate multiple fee scenarios. See id. DHS
will need to reprogram intake operations for Form N-400 to recognize
the new fee and documentation. Staff must be added to review the
income documentation provided to determine if the applicant
qualifies for the new fee. DHS has determined that the change
proposed here, because it applies only to Form N-400 and the act of
acquiring citizenship, is of sufficient value from a public policy
standpoint to justify USCIS incurring the additional administrative
and adjudicative burden and the cost of such covered by other fee
payers, which as explained below is limited.
---------------------------------------------------------------------------

In FY 2020, 3,430 people submitted a reduced fee Form N-400.\233\
This represents approximately 0.47 percent of the people who paid for
Form N-400 in FY 2020. USCIS forecasts 3,763 average annual receipts
for the reduced Form N-400 in this proposed rule. As such, DHS
estimates that the reduced fee option for N-400 may provide
approximately $1.4 million in revenue with the proposed fee. If DHS
were to propose ending the reduced fee option, it would have almost no
effect on the resulting fee schedule. Two proposed fees would increase
by $5 and one would increase by $10, but all other proposed fees would
remain the same. DHS proposes to maintain the reduced fee \234\ to
further promote naturalization and limit a barrier to naturalization.
---------------------------------------------------------------------------

\233\ Based on actual FY 2020 revenue collections, 3,430 people
filed Form N-400 with Form I-942. In the same year, 726,519 paid the
full fee for Form N-400. Thus, the total fee-paying volume for both
is 729,949. Reduced fee applicants represented approximately 0.47
percent of total Form N-400 applicants.
\234\ This includes a reversal of the 2020 fee rule's removal of
the Form I-942.
---------------------------------------------------------------------------

3. Military Naturalization and Certificates of Citizenship
DHS does not propose any changes to fee exemptions for current and
former military service members who file a Form N-400 under the
military naturalization provisions.\235\ Military naturalization
applications will continue to be fee exempt. See 8 CFR
103.7(b)(1)(i)(BBB)(2) (Oct. 1, 2020); proposed 8 CFR
106.2(b)(4)(i).\236\ USCIS does not charge a fee to military
naturalization applicants because such fees are prohibited by statute.
See INA secs. 328(b)(4), 329(b)(4), 8 U.S.C. 1439 (b)(4), 8 U.S.C.
1440(b)(4). Applicants who request a hearing on a naturalization
decision under INA sec. 328 or 329 with respect to military service
will continue to be fee exempt. See 8 CFR 103.7(b)(1)(i)(AAA) (Oct. 1,
2020); proposed 8 CFR 106.2(b)(3). Current or former military members
of any branch of the U.S. armed forces will continue to be exempt from
paying the fee for an Application for Certificate of Citizenship, Form
N-600. See 8 CFR 103.7(b)(1)(i)(EEE) (Oct. 1, 2020); proposed 8 CFR
106.2(b)(8). While the statute prohibits fees for military
naturalization applicants themselves, DoD currently reimburses USCIS
for costs related to such applications.\237\ Accordingly, USCIS does
not propose to increase other fees to subsidize the costs of military
naturalization applications.
---------------------------------------------------------------------------

\235\ DHS notes that no other applicant is exempt from the Form
N-400 fee but any other applicant submitting a Form N-400 may
request a fee waiver.
\236\ DHS made no changes to the fee exemptions for military
members and veterans in the 2020 fee rule. See 84 FR 62317.
\237\ The proposed fee would increase the reimbursable agreement
between USCIS and DoD by $199,500. The current fees for Form N-400
($640) and biometric services ($85) total $725 per military
naturalization. In FY 2022/2023, USCIS forecasts an average of 5,700
military naturalizations per year. Under the current fees, this
would cost DoD $4,132,500 on average each year. With the proposed
$760 Form N-400 fee (which includes the cost of biometrics), the
same volume would cost $4,332,000, a $199,500 or approximately 5
percent increase.
---------------------------------------------------------------------------

4. Application for Certificate of Citizenship (Form N-600) and
Application for Citizenship and Issuance of Certificate Under Section
322 (Form N-600K)
As discussed earlier in this preamble, DHS bases most proposed fees
on fee-paying unit costs from the ABC model. See section V.B.3.,
Assessing Proposed fees. Other proposed fees, such as those for
naturalizations forms, are based the current fees plus a limited fee
increase. Id. The current fee for Forms N-600 and N-600K was based on
USCIS data that showed approximately one-third of Form N-600 filers
received fee waivers. See 81 FR 73298. In fact, the substantial fee
increase in the FY 2016/2017 fee rule was primarily due to the
availability of fee waivers for other N-600s and N-600Ks. Id. In the
2010 final rule, DHS assumed that every applicant would pay the fee for
Forms N-600 and N-600K.\238\ However, the fee-paying volume estimate
for Forms N-600 and N-600K decreased from 100 percent in FY 2010/2011
to 67 percent in FY 2016/2017 to reflect USCIS data, showing an
increased share of applicants receiving fee waivers. See 81 FR 73298.
In addition, the FY 2016/2017 fee rule removed the difference in fees
between forms filed for biological children versus forms filed for
adopted children. See 81 FR 73297-73298. In response to the FY 2016/
2017 fee rule NPRM, some commenters stated that the proposed fee
increases would result in a significant additional burden for
applicants, including adoptive families. Nevertheless, DHS increased
the fees to recover the cost of adjudications.
---------------------------------------------------------------------------

\238\ Compare Forms N-600 and N-600K between Tables 10 and 11 in
the 2010 proposed rule. See 75 FR 33468-33469 (June 11, 2010). The
2010 proposed rule assumed no fee waivers for Forms N-600 and N-600K
because workload volumes are equal to fee-paying volumes for the two
respective forms. The 2010 final rule adopted the proposed fees for
Forms N-600 and N-600K. See 75 FR 58964 (Sept. 24, 2010).
---------------------------------------------------------------------------

In the 2020 fee rule, fees for Forms N-600 and N-600K decreased.
See 85 FR 46792. However, that fee decrease was the result of
limitations on fee waivers that were included in that enjoined rule.
See 85 FR 46861. DHS is not proposing to similarly restrict fee waivers
in this rule. Therefore, fee waivers continue to contribute to the
proposed fee increases. Recent USCIS data indicate that approximately
53 percent of Form N-600 applicants and approximately 74 percent of
Form N-600K applicants pay the respective fees, and the fees

[[Page 489]]

proposed in this rule reflect that.\239\ This means that every fee-
paying Form N-600 applicant would need to pay almost double the
estimated unit cost of the application in order to accommodate
applicants that received a fee waiver or qualified for a fee exemption
for Form N-600 if the burden were limited to Form N-600 filers.
---------------------------------------------------------------------------

\239\ See Section V.B.1 earlier in this NPRM. Compare the
workload to the fee-paying volume for Forms N-600 and N-600K. Divide
the fee-paying receipts by the workload for the fee-paying
percentage. For example, Form N-600 estimated workload is 30,000.
The estimated fee-paying volume is 16,041. Estimated fee-paying
divided by estimated workload equals 53.47 percent as the fee-paying
percentage.
---------------------------------------------------------------------------

The current fees represent a combined fee for both Forms N-600 and
N-600K.\240\ The proposed fees for Forms N-600 and N-600K are
calculated and proposed separately. USCIS estimated separate workload
and fee-paying volumes for each in this proposed rule. By determining
separate volumes and fee-paying percentages for Forms N-600 and N-600K,
these proposed fees better reflect the fee-paying percentage of each
respective benefit request.
---------------------------------------------------------------------------

\240\ See 103.7(b)(1)(i)(EEE) and (FFF) (Oct. 1, 2020). Both
used the same $1,070 fee; see also 81 FR 73295 (Oct. 24, 2016).
---------------------------------------------------------------------------

DHS recognizes that increasing fees for Forms N-600 and N-600K to
account for the full cost of adjudication may adversely impact
applicants who are generally children and are already citizens by law.
DHS has determined that the combined effect of high cost and low fee-
paying volume would otherwise place an inordinate fee burden on
individuals requesting certificates of citizenship. Also, DHS has
decided that limiting the fee increase will promote citizenship and
immigrant integration.
Therefore, DHS proposes to limit the increase of the fee for these
forms and apply the cost reallocation methodology as described in
section VIII.F.5., Proposed Changes to Other Naturalization-Related
Application Fees. This proposed fee remains below the estimated cost
from the USCIS ABC model. By limiting the fee increase, DHS may reduce
the financial burden on these applicants. In addition, limiting the N-
600 fees does not appreciably increase other fees by shifting an
inordinate amount of costs of adjudicating the N-600 to them. The
increase to other forms is only $5 in many cases, compared to an
increase of hundreds of dollars to the N-600 and N-600K fees to recover
full cost. For example, if DHS proposed to recover full cost on Form N-
600 and N-600K, then proposed fees for Form N-600 would range from
$1,835 when filed online to $2,080 when filed on paper. These
hypothetical proposed fees are $450 and $695 more than the respective
proposed fees in this rulemaking. Thus, DHS concludes that the proposed
Form N-600 and N-600K fees represent a reasonable balance between the
beneficiary-pays and ability-to-pay fee-setting models being employed
to calculate the fees in this proposed rule.
5. Proposed Changes to Other Naturalization-Related Application Fees
There are other naturalization and citizenship related forms that
may be submitted in coordination with the naturalization or certificate
of citizenship application. Other forms may be submitted before or
after such applications for other benefits. In some cases, such as Form
N-565, DHS proposes to recover full cost; however, proposed fees for
most naturalization services remain below estimated cost. See Table 14.
DHS uses its fee setting discretion to adjust certain immigration
request fees that would be overly burdensome on applicants,
petitioners, and requestors. Historically, as a matter of policy, DHS
has chosen to limit USCIS fee adjustments for certain benefit requests
to the weighted average fee increase represented by the model output
costs for fee-paying benefit types. See 75 FR 33461.\241\ Any
additional costs from these benefit request types beyond this
calculated weighted average increase figure would be reallocated to
other benefit types.
---------------------------------------------------------------------------

\241\ See also FY 2008/2009 Fee Rule. 72 FR 4910.
---------------------------------------------------------------------------

DHS has continuously limited the fees for the following forms:
Form N-300, Application to File Declaration of Intention;
Form N-336, Request for a Hearing on a Decision in
Naturalization Proceedings (Under Section 336 of the INA); and
Form N-470, Application to Preserve Residence for
Naturalization Purposes.
DHS recognizes that charging less than the full cost of
adjudicating an immigration benefit request requires USCIS to increase
fees for other immigration benefit requests to ensure full cost
recovery.\242\ Nevertheless, DHS proposes to continue limiting the fees
for these forms as they are related to naturalization benefits and some
have low receipt numbers.
---------------------------------------------------------------------------

\242\ This complies with INA sec. 286(m), 8 U.S.C. 1356(m),
which authorizes DHS to set USCIS fees at a level required to cover
the costs of providing applicants, petitioners, or requestors a
service or part of a service ``without charge.''
---------------------------------------------------------------------------

DHS further proposes to maintain the current fee for Form N-565,
Application for Replacement Naturalization/Citizenship Document despite
the FY 2022/2023 USCIS ABC model calculating a lower fee for it. The
current fee for Form N-565 is $555. There is no fee when this
application is submitted under 8 CFR 338.5(a) or 343a.1 to request
correction of a certificate that contains an error. DHS considered
lowering the fee as provided in the model, but decided that the revenue
above the costs of adjudicating that would be generated by maintaining
the current N-565 fee would help to mitigate the fee increases for
other forms.\243\ DHS weighed a number of factors in deciding to keep
the current fee, which is $180 higher than the FY 2022/2023 fee-paying
unit cost. See Table 14. DHS recognizes that obtaining a replacement
Naturalization/Citizenship Document may be necessary at times; however,
a U.S. passport is an available alternative to proof of U.S.
citizenship. The number of individuals who would file Form N-565 is
limited, a fee waiver is still available, and the fee is not increasing
from the FY 2016/2017 fee rule. Therefore, DHS determined that keeping
the fee at the amount that it has been for the last 5 years would not
be unduly burdensome on applicants or limit access to a replacement
certificate. Thus, DHS decided that applicants for a replacement
naturalization/citizenship document would pay the current fee although
the amount is above the fee-paying unit cost calculated by the ABC
model.
---------------------------------------------------------------------------

\243\ See section V.B.3. of this preamble for more information
on assessing proposed fees.
---------------------------------------------------------------------------

6. Request for Comments
While DHS proposes no changes to the Request for Reduced Fee (Form
I-942) income threshold for the naturalization application, DHS
specifically requests comments on the appropriate level of income that
USCIS should use to determine eligibility for the reduced fee and data
to support that suggested level or measure. DHS also requests comments
on limiting the increase of some fees and applying the cost
reallocation methodology.

G. Fees for Online Filing

The June 2018 OMB report, ``Delivering Government Solutions in the
21st Century,'' recognized that an overarching source of Government
inefficiency is the outdated reliance on paper-based processes, and
prioritized the transition of Federal agencies' business processes and
recordkeeping to a fully electronic environment.\244\ The

[[Page 490]]

report noted that Federal agencies collectively spend billions of
dollars on paper management, including processing, moving, and
maintaining large volumes of paper records, and highlighted the key
importance of data, accountability, and transparency.\245\
Significantly, it cites USCIS' electronic processing efforts as an
example of an agency initiative that aligns with the prioritized
reforms.\246\
---------------------------------------------------------------------------

\244\ OMB, ``Delivering Government Solutions in the 21st
Century: Reform Plan and Reorganization Recommendations'' (2018),
available at https://www.whitehouse.gov/wp-content/uploads/2018/06/Government-Reform-and-Reorg-Plan.pdf.
\245\ Id. at 100.
\246\ Id. at 101-02.
---------------------------------------------------------------------------

The FY 2022 President's Budget also noted the need for effective,
efficient, and modern Federal information technology to improve service
delivery.\247\ USCIS will continue to expand upon the current level of
operational digital filing platforms and encourage filers to utilize
these online resources for a simpler, faster, and more responsive
filing experience.\248\
---------------------------------------------------------------------------

\247\ OMB, ``Budget of the U.S. Government: Fiscal Year 2022''
(2021), available at https://www.whitehouse.gov/wp-content/uploads/2021/05/budget_fy22.pdf.
\248\ OMB, ``12. Information Technology and Cybersecurity
Funding'' (2021), available at https://www.whitehouse.gov/wp-content/uploads/2021/05/ap_12_it_fy22.pdf.
---------------------------------------------------------------------------

DHS understands that while USCIS has embraced technology in
adjudication and recordkeeping, it remains bound to the significant
administrative and operational burdens associated with benefit requests
that are submitted on paper. The intake, storage, and handling of paper
require tremendous operational resources, and information recorded on
paper cannot be as effectively standardized or used for fraud and
national security, information sharing, and system integration
purposes. However, technological advances have allowed USCIS to develop
accessible, digital alternatives to traditional paper methods for
intaking and adjudicating benefit requests. Every benefit request
submitted online instead of on paper provides direct and immediate cost
savings and operational efficiencies to both USCIS and filers--benefits
that will increase throughout an individual's immigration lifecycle as
more benefit requests become available for online filing and case
management.
Even as benefit requests become available for online filing, USCIS
continues to provide the option of engaging with USCIS on paper. DHS
recognizes that people adopt new technology at varying rates and have
different levels of access to technology resources.\249\ In this case,
the complexity of the immigration benefit request system may exacerbate
the tendency toward the status quo. Those familiar with paper-based
forms and interactions may feel there is no reason to change a method
that has worked for them in the past.
---------------------------------------------------------------------------

\249\ See Brian Kennedy & Cary Funk, Pew Research Group, ``28
percent of Americans are `strong' early adopters of technology''
(July 12, 2016), available at https://www.pewresearch.org/fact-tank/2016/07/12/28-of-americans-are-strong-early-adopters-of-technology.
See also Emily Vowels, Pew Research Group, ``Digital divide persists
even as Americans with lower incomes make gains in tech adoption''
(June 22, 2021), available at https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption/.
---------------------------------------------------------------------------

DHS agrees that transitioning to online filing for benefit requests
is an important step in improving USCIS service and financial
stewardship while promoting the objectives of the Government Paperwork
Elimination Act \250\ and the E-Government Act.\251\ Therefore, USCIS
has calculated the fee-paying unit cost (model output) for paper filing
and online filing separately. USCIS modified its ABC model to
distinguish between paper and online filing costs when both options
exist for an immigration benefit request.\252\ USCIS used domestic
receipt data from April 2020 to March 2021 to estimate the percentage
of receipts by filing method (online or paper) for each type of
immigration benefit request available for online filing. USCIS applied
those percentages to the total receipt forecasts by fiscal year to
estimate online and paper filing volumes for immigration benefit
requests for which both filing options are available.\253\ The ABC
model assigned costs differently to the two filing methods. For
example, the model assigned the Intake activity to only paper
workloads. The Intake activity represents mailroom operations, data
entry and collection, file assembly, fee receipting, adjudication of
fee waiver requests, and lockbox operations.
---------------------------------------------------------------------------

\250\ See Pub. L. 105-227, 112 Stat. 2681 (Oct. 21, 1998).
\251\ See Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002).
\252\ USCIS uses commercially available ABC software,
CostPerform, to create financial models to implement ABC, as
described in the Methodology section of this preamble and the
supporting documentation in the docket for this proposed rule. The
supporting documentation also provides additional information on
activities and their assignments in the ABC model.
\253\ USCIS did not use online filing data for Form I-765 during
this timeframe. Online filing for certain applicants filing Form I-
765 became available on April 12, 2021. See USCIS, ``F-1 Students
Seeking Optional Practical Training Can Now File Form I-765
Online,'' available at https://www.uscis.gov/news/news-releases/f-1-students-seeking-optional-practical-training-can-now-file-form-i-765-online (last revised Apr. 12, 2021). USCIS used the online
filing rates for Form I-539 as a proxy for the online filing rates
for the eligible categories of I-765 filers.
---------------------------------------------------------------------------

DHS recognizes that the international COVID-19 pandemic may have
increased the level of online filing versus paper filing for benefit
requests where online filing is available. To encourage continued use
of online filing at the same or a higher rate after the pandemic, DHS
proposes a lower fee for online filing of immigration benefit requests
for which both paper and online filing options are available.\254\ See
proposed 8 CFR 106.2.\255\ See Table 15, Fees for Online Filing, for a
comparison of paper and online filing fees. In some cases, DHS proposes
to not change the fee. See section V.B.3., Assessing Proposed Fees, for
more information.
---------------------------------------------------------------------------

\254\ DHS codified a fee for forms currently available for
online filing with USCIS and filed online that was $10 lower than
the fee for the same paper. 8 CFR 106.2(d) (Oct. 2, 2020). In this
rule, DHS also proposes separate fees for filing forms online.
\255\ CBP accepts USCIS Forms I-192 and I-212 online. Available
at https://www.cbp.gov/travel/international-visitors/e-safe (last
modified Oct. 28, 2020). However, USCIS has no data on the cost of
online filing with CBP. Therefore, DHS proposes that USCIS online
and paper fees apply to USCIS forms submitted to USCIS only.

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

[[Page 491]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.053

DHS bases the proposed separate online and paper fees on ABC model
results. When DHS proposes limited fee increases or to continue using
the current fee, the calculation is based on the current fee instead of
ABC model results. As such, there are not separate proposed fees for
online and paper filing for immigration benefit requests with limited
fee increases or held to the current fee.
USCIS will further evaluate the effects of these changes in future
biennial fee reviews. For example, if the level of online filing
increases or as more benefit requests become available for online
filing, then USCIS will incorporate that information into future fee
reviews.

H. Form I-485, Application To Register Permanent Residence or Adjust
Status

1. Interim Benefits
Usually, a primary immigration benefit request must be approved
before an applicant can receive associated benefits such as employment
authorization or a travel document or both. That is, USCIS only grants
associated benefits after or at the same time as it grants the primary
immigration benefit request. However, in some situations, an applicant
may qualify for an associated immigration benefit while the primary
benefit request is still pending adjudication. For example, in certain
instances, a person with a pending adjustment of status application may
apply for employment authorization or a travel document or both. See 8
CFR 274a.12(c)(9). When associated benefits are issued while a primary
benefit request is pending, USCIS refers to them as ``interim''
benefits.
DHS proposes to require separate filing fees for Form I-765,
Application for Employment Authorization, and Form I-131, Application
for Travel Document, when filed concurrently with Form I-485,
Application to Register Permanent Residence or Adjust Status, or as
interim benefit requests on the basis of a pending Form I-485 filed on
or after the effective date of this rule.
Before the FY 2008/2009 fee rule, applicants paid separate fees for
Form I-765 and Form I-131 while waiting for USCIS to adjudicate Form I-
485. Applicants who had not yet received a permanent residence card
(PRC, also known as a ``Green Card'' or Form I-551), but who had to
renew these interim benefits, paid any associated fees for the
renewals. See 72 FR 4894. Since the FY 2008/2009 fee rule, USCIS has
allowed applicants who properly file and pay the required fee for Form
I-485 to file Forms I-765 and I-131 without paying the fees for those
forms. Form I-765 or Form I-131, or both, may be filed concurrently
with Form I-485 or as standalone interim benefit requests while Form I-
485 is still pending. Applicants who have not yet received a PRC but
who have to renew these interim benefits also do not have to pay the
associated fees. For the FY 2008/2009 fee rule, USCIS determined that
calculating fees for Form I-485 at an amount that would include interim
benefits would improve efficiency and save most applicants money. See
72 FR 4894 and 29861-29862. By providing that the fees for interim
benefits would be included in the fee for Form I-485, USCIS addressed
the perception that it benefits from increased revenue by processing
Form I-485 more slowly. See 72 FR 4894 and 72 FR 29861-29862 (May 30,
2007). The FY 2010/2011 fee rule continued the practice of ``bundling''
the fees for interim benefits and Form I-485. See 75 FR 58968.
In the FY 2016/2017 fee review, USCIS calculated the workload
volume and fee-paying percentage for Forms I-

[[Page 492]]

765 and I-131 that were not associated with a Form I-485. This enabled
USCIS to derive a fee-paying percentage for Forms I-765 and I-131 not
filed concurrently with a Form I-485. See 81 FR 26918 (May 4, 2016) and
81 FR 73300. By isolating standalone Form I-765 and Form I-131 interim
benefit applications from those filed concurrently with Form I-485,
USCIS more accurately assessed fee-paying percentages, fee-paying
volumes, and fees for all three benefit types. Id.
DHS proposes to charge separate fees for Form I-765 and Form I-131
when filed concurrently with Form I-485 or as interim benefit requests
while Form I-485 is pending adjudication. See proposed 8 CFR
106.2(a)(16); 8 CFR 106.2(a)(32); 8 CFR 106.2(a)(7)(iii).\256\ The
proposed change would be subject to phased implementation.
Specifically, individuals who filed a Form I-485 after July 30, 2007
(the FY 2008/2009 fee rule), and before this change proposed in this
rule takes effect will continue to be able to file Form I-765 and Form
I-131 without additional fees while their Form I-485 is pending and
would, therefore, be unaffected by this change. Individuals who filed
Form I-485 before the FY 2008/2009 fee rule and those who file Form I-
485 on or after the date the proposed change becomes effective would
pay separate fees for the interim benefits. The proposed changes are
summarized in Table 16. The date the proposed changes would take effect
is not yet available.
---------------------------------------------------------------------------

\256\ In the 2020 fee rule, DHS required separate filing fees
when filing Form I-765, Application for Employment Authorization,
and Form I-131, Application for Travel Document, concurrently with a
Form I-485, Application to Register Permanent Residence or Adjust
Status, or after USCIS accepts their Form I-485 and while it is
still pending. DHS is not proposing to reverse that change and is
proposing it again in this rule for the reasons stated.
[GRAPHIC] [TIFF OMITTED] TP04JA23.054

DHS proposes this change to reduce the proposed fee increases for
Form I-485 and other forms. For example, in the FY 2016/2017 fee rule,
USCIS isolated the workload volume and fee-paying percentage of Forms
I-765 and I-131 that are not associated with Form I-485. See 81 FR
26918. Isolating the volumes for interim benefits reduced the overall
volume on the fee schedule because USCIS only counted interim benefit
volumes as part of the Form I-485 forecast instead of counting them
twice (for Form I-485 and the interim benefit). USCIS expects
approximately 500,000 new fee-paying annual interim benefit
applications in the FY 2022/2023 forecast as a result of the proposed
change.
In the proposed fee schedule, USCIS assumes these interim benefit
applicants will pay the applicable fees for Forms I-485, I-765, and I-
131. If applicants continued to only pay a bundled fee, then the
proposed fee for Form I-485 would be $1,715, which is $175 or
approximately 37 percent more than the actual proposed fee of $1,540.
See 8 CFR 103.7(b)(1)(i)(U) (Oct. 1, 2020); proposed 8 CFR
106.2(a)(16). Other proposed fees would also change on this
hypothetical fee schedule including Form I-765, Application for
Employment Authorization. If USCIS continued to allow free interim
benefits, the proposed Form I-765 fee would be $825 when filed on
paper. This would be $415 or approximately 101 percent more than the
current $410 fee. By proposing that Form I-765 require the fee when
filing as an interim benefit, the proposed Form I-765 fee is $650,
which is $240 or approximately 59 percent more than the current $410
fee. See 8 CFR 103.7(b)(1)(i)(II) (Oct. 1, 2020); proposed 8 CFR
106.2(a)(43)(ii). By having one fee for Form I-485 and interim
benefits, the weighted average fee increase would be 51-percent
compared to the 40-percent average fee increase in the proposed fee
schedule.\257\
---------------------------------------------------------------------------

\257\ USCIS uses a weighted average instead of a straight
average because of the difference in volume by immigration benefit
type and the resulting effect on fee revenue. In a fee schedule with
free interim benefits, the sum of the current fees multiplied by the
projected FY 2022/2023 fee-paying receipts for each immigration
benefit type, divided by the total fee-paying receipts is $522. This
is $4 higher than in the proposed fee schedule because the fee-
paying volumes are lower when DHS assumes free interim benefits. The
weighted average proposed fee is $790, $65 or approximately 16
percent higher than the weighted average current fee of $522 in this
hypothetical fee schedule that assumes free interim benefits.
---------------------------------------------------------------------------

In a bundled scenarios, USCIS only counts Form I-485 as a fee-
paying receipt. In a scenario without bundled interim benefits, USCIS
may count Forms I-485, I-765, and I-131 each as up to three fee-paying
receipts. In general, fees are higher in a fee schedule with bundled
fee interim benefits because it has lower fee-paying volumes than the
proposed fee schedule. This means there are fewer immigration benefit
requests from which USCIS can recover projected costs in a fee schedule
with bundled fee interim benefits. For example, USCIS estimates that
approximately 65 percent of Form I-765 applicants may pay the Form I-
765 fee in a scenario without bundled interim benefits; this is the
proposed fee scenario with higher fee-paying volumes overall. In a
bundled scenario, approximately 45 percent of Form I-765 applicants may
pay the fee for Form I-765. While Form I-485 applicants would not have
to pay the fee for Form I-765 in a bunded scenario, the fee for all
other Form I-765 applicants would be higher because a bundled scenario
reduces fee-paying receipts overall. In the bundled scenario, people
would pay more to recover the cost of Form I-765 because of the
approximate 20 percent difference between the two scenarios. These
points of comparison ignore additional fee exemptions that are also
part of the proposed fees. Put another way, if USCIS performs less
bundled work, then applicants pay lower fees for that work because it
will increase fee-paying volumes for Forms I-485, I-765, and I-131. If
USCIS continues to offer bundled interim benefits, then other
immigration benefit request fees will be higher. DHS proposes separate
fees for interim benefit applications and Form I-485 applications in
order to lower the proposed fees for most other applicants,
petitioners, and requestors, and to tailor applicants' costs more
directly to the benefits for which they apply.

[[Page 493]]

DHS proposes to increase the Form I-485 fee to $1,540, which is
$400 or 35 percent more than the current $1,140 fee that includes
interim benefits. USCIS did not realize the efficiency gains
anticipated when it originally bundled interim benefits in the FY 2008/
2009 fee rule. See 72 FR 4894. This is due to a number of reasons.
Mainly, annual numerical visa limits established by Congress and high
demand have created long wait times for some visa categories, known as
retrogression. Some Form I-485 applicants must wait years for visas to
become available again after they file their adjustment of status
applications.\258\ While USCIS has some control over its own allocation
of resources to address processing times and backlogs, USCIS has no
direct control over delays caused by the DOS's allocation of visa
numbers and Congress' annual visa numerical limits. USCIS has taken
some actions to alleviate the filing burden and fees on those
individuals whose Form I-485 applications are still pending due to the
lack of available immigrant visas. For example, DHS, as of June 9,
2021, provides EADs with 2-year rather than 1-year validity periods to
decrease the burden on both the Department and applicants caused by
long waits for visa availability.\259\
---------------------------------------------------------------------------

\258\ See USCIS, ``Visa Retrogression,'' available at https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression (last updated Mar. 8,
2018).
\259\ See USCIS, ``USCIS Policy Manual'' (Vol. 10), Employment
Authorization, Part B, Specific Categories, Chapter 4, Adjustment
Applicants Under INA sec. 245, Policies to Improve Immigration
Services at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf (last
updated June 9, 2021). USCIS may, in its discretion, determine the
validity period assigned to any document issued evidencing an
individual's authorization to work in the United States. See 8 CFR
274a.12(b).
---------------------------------------------------------------------------

As a result of this proposal, new Form I-485 applicants would only
pay for the benefits that they request. In the FY 2008/2009 and FY
2010/2011 fee rules, some commenters stated they did not want to pay
for additional benefits they did not want, need, or receive, which was
a consequence of the bundled fee approach. See 72 FR 29861-29863 (May
30, 2007) and 75 FR 58968. In previous fee rules, bundled interim
benefit fees were only associated with a pending Form I-485. However,
other applications may also warrant interim benefits.\260\ DHS has
decided it is more equitable to treat all petitioners and applicants
who apply for interim benefits the same, regardless of the pending
primary request that may grant interim benefits, even though some
applicants would pay significantly more to adjust status and apply for
one or more interim benefits. If USCIS continues offering bundled
interim benefits, then other customers may bear the burden of higher
fees as a result of bundled interim benefits that do not benefit them.
For example, DHS believes it would present unfair barriers for
unrelated applicants with limited financial resources (like asylum
renewals or students) for Form I-765 to pay higher fees so that Form I-
485 applicants would pay lower fees. Table 17 compares the current fees
for Form I-485 applicants that may bundle interim benefits to the
proposed fees without bundling.
---------------------------------------------------------------------------

\260\ Individuals may derive interim benefits from an
Application for Temporary Protected Status, Form I-821. Unless
otherwise stated in this proposed rule preamble, DHS uses interim
benefits to refer to benefits associated with Form I-485,
Application to Register Permanent Residence or Adjust Status.
[GRAPHIC] [TIFF OMITTED] TP04JA23.055

DHS acknowledges that applicants and petitioners may face
additional difficulties in paying the proposed fees, and may be
required to request a fee waiver if eligible, save money longer to
afford the fees, or resort to credit cards or borrowing to pursue their
or their family members' immigration benefit. DHS has weighed these
impacts and interests and considered alternatives to the proposals in
this rule as described in this preamble. DHS is committed to
affordability and access for all and acknowledges that the increase in
some fees may appear contrary to this commitment. As discussed above,
however, bundled interim benefits are currently making other
immigration

[[Page 494]]

benefits less affordable. DHS requests comments on the proposed change
to Form I-485 and interim benefits.
2. Form I-485 Fee for Child Under 14, Filing With Parent
Currently, Form I-485 has two fees: the fee for an adult is $1,140,
and the fee for a child under the age of 14 concurrently filing with a
parent is $750. See 8 CFR 103.7(b)(1)(i)(U) (Oct. 1, 2020). DHS
proposes to require payment of the proposed $1,540 fee for all
applicants, including children under the age of 14 years concurrently
filing Form I-485 with a parent.\261\ See 8 CFR 103.7(b)(1)(i)(U)(2)
(Oct. 1, 2020); proposed 8 CFR 106.2(a)(16).\262\
---------------------------------------------------------------------------

\261\ The parent may be seeking classification as an immediate
relative of a U.S. citizen, a family-sponsored preference immigrant,
or a family member accompanying or following to join a spouse or
parent under sections 201(b)(2)(A)(i), 203(a)(2)(A), or 203(d) of
the INA; 8 U.S.C. 1151(b)(2)(A)(i), 1153(a)(2)(A), or 1153(d).
\262\ DHS made this change in the 2020 fee rule and is proposing
that it not be reversed for the reasons stated.
---------------------------------------------------------------------------

DHS no longer believes there is a cost basis for the two different
Form I-485 fees. As explained in the FY 2016/2017 fee rule, USCIS does
not track the adjudication time for Form I-485 based on the age of the
applicant, so there are no data showing a cost difference correlated to
the difference in applicant age. See 81 FR 73301. The FY 2016/2017 fee
rule calculated the $750 fee using the model output to comply more
closely with the ABC methodology for full cost recovery. See 81 FR
26919. USCIS assumed that the $750 fee would not include the cost of an
EAD. Id. As such, the completion rate for the $750 fee was lower than
for most adults. However, because DHS proposes to charge separate fees
for interim benefits, there are no longer any Form I-765 adjudication
costs included in the calculation of the fee, meaning that the previous
rationale for providing a discount no longer exists. However, children
under the age of 14 do not typically pay the $85 biometric services fee
required for adults that apply to adjust status, which this rule
proposes to bundle into the fee for Form I-485.
In the proposed Form I-485 fee, USCIS assumes the same completion
rate and biometric services for adults and children to reflect USCIS
data and processes, and because DHS proposes to separate interim
benefit request fees from the fee for Form I-485. DHS believes that a
single fee for Form I-485 will reduce the burden of administering
separate fees and better reflect the cost of adjudication. This
proposal will affect a small percentage of Form I-485 applicants. In FY
2019 and FY 2020, approximately five to six percent of Form I-485
applicants paid the $750 fee. See Table 18 for Form I-485 fee-paying
receipts and percentages for the 2 years.
[GRAPHIC] [TIFF OMITTED] TP04JA23.056

3. INA Sec. 245(i) Statutory Sum
In addition, DHS is proposing to clarify the statutory sum for
applicants for adjustment of status under INA sec. 245(i).\263\ Such
applicants are required to properly file Form I-485 with fee along with
Form I-485 Supplement A and the $1,000 statutory sum, unless exempted
by the statute. USCIS proposes that the statutory sum for Form I-485
Supplement A, Adjustment of Status Under Section 245(i), be revised to
clarify that Form I-485 Supplement A and the $1,000 statutory sum must
be submitted when Form I-485 is filed or still pending. See proposed 8
CFR 106.2(a)(21). DHS is also proposing to remove the additional
reference from the Form I-485 Supplement A that states there is no
required statutory sum when the applicant is an unmarried child under
17 or the spouse or the unmarried child under 21 of an individual with
lawful immigration status and who is qualified for and has applied for
voluntary departure under the family unity program. See 8 CFR
103.7(b)(1)(i)(V) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(17). Those
exemptions from the required statutory sum are explicitly provided by
statute and will be included in the applicable form instructions. See
INA sec. 245(i)(1)(C), 8 U.S.C. 1255(i)(1)(C). Therefore, it is
unnecessary to codify them in the CFR.
---------------------------------------------------------------------------

\263\ The additional $1,000 sum is required to be submitted with
each INA sec. 245(i), 8 U.S.C. 1255(i), adjustment of status
application, unless the applicant is (1) an unmarried child under
age 17, or (2) the spouse or unmarried child of a legalized alien
who satisfies the requirements for an exemption in 8 CFR 245.10(c).

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

[[Page 495]]

I. Continuing To Hold Refugee Travel Document Fee for Asylees to the
Department of State Passport Fee

Consistent with U.S. obligations under Article 28 of the 1951
Convention relating to the Status of Refugees,\264\ DHS proposes to
continue to link the fee charged for Form I-131, Application for Travel
Document, to the DOS's fee for a first time United States passport book
when Form I-131 is filed by asylees, or by LPRs who obtained such
status as asylees, to request a refugee travel document.\265\ In
previous fee rules, DHS aligned the refugee travel document fees to the
sum of the U.S. passport book application fee plus the additional
execution fee that DOS charges for first time applicants. See 81 FR
73301 and 75 FR 58972. Since the FY 2016/2017 fee rule, DOS increased
the execution fee from $25 to $35, which is a $10 or 40 percent
increase. See DOS, ``Schedule of Fees for Consular Services, Department
of State and Overseas Embassies and Consulates--Passport Services Fee
Changes,'' 83 FR 4425 (Jan. 31, 2018). In addition, DOS increased the
passport book security surcharge from $60 to $80, a $20 or 33 percent
increase. See DOS, ``Schedule of Fees for Consular Services-Passport
Security Surcharge,'' 86 FR 59613 (Oct. 27, 2021). Together, these two
DOS rules represent a $30 increase in passport book fees since DHS last
changed the refugee travel document fees. Under this proposal, DHS
would increase refugee travel document fees by a conforming amount for
asylees and LPRs who obtained such status as asylees. DHS refugee
travel document fees for this population would be $165 for adults and
$135 for children under the age of 16 years, consistent with U.S.
passport fees. See proposed revised and republished 8 CFR
106.2(a)(7)(i) and (ii). As discussed in section VII.B.12. of this
preamble, DHS proposes to exempt refugees from paying the fee for
refugee travel documents. DHS estimates that the cost to USCIS of
processing refugee travel documents exceeds the fee for a U.S. passport
book. Consistent with past and current practice, DHS proposes to set
other fees marginally higher to recover the difference between the cost
of adjudicating Form I-131 for refugee travel documents and the revenue
generated from the fees in light of the considerations and policy
reasons described above relating to refugees.
---------------------------------------------------------------------------

\264\ The United States is party to the 1967 Protocol Relating
to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606
U.N.T.S. 267 (1968), which incorporates articles 2 through 34 of the
1951 Convention. The United States is not party to the 1951
Convention. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,
169 n.19 (1993) (``Although the United States is not a signatory to
the Convention itself, in 1968 it acceded to the United Nations
Protocol Relating to the Status of Refugees, which bound the parties
to comply with Articles 2 through 34 of the Convention as to persons
who had become refugees because of events taking place after January
1, 1951.'').
\265\ See 75 FR 58972 (Sept. 24, 2010) (discussing Article 28
standards for assessing charges for a refugee travel document).
---------------------------------------------------------------------------

J. Form I-131A, Carrier Documentation

DHS proposes to separate the fee for Form I-131A, Application for
Carrier Documentation, from other travel document fees and maintain the
current Form I-131A fee. See 8 CFR 103.7(b)(1)(i)(M)(3) (Oct. 1, 2020);
proposed 8 CFR 106.2(a)(8). The proposed fee for Form I-131A is the
same as the current $575 fee. Id. USCIS began using Form I-131A,
Application for Carrier Documentation, in 2016. See 80 FR 59805 (Oct.
2, 2015). In the FY 2016/2017 fee rule, DHS implemented a fee that was
calculated using the total Form I-131 and I-131A workload. See 81 FR
73294-73295.
Currently, certain LPRs may use Form I-131A to apply for a travel
document (carrier documentation) if their PRC, also known as a ``Green
Card'' or Form I-551, or their re-entry permit is lost, stolen, or
destroyed while outside of the United States. Carrier documentation
allows an airline or other transportation carrier to board the LPR
without any penalty for permitting an individual to board without a
visa or travel document. See INA sec. 273, 8 U.S.C. 1323 (providing for
a fine of $3,000 for each noncitizen without proper documentation). In
order to be eligible for carrier documentation, an LPR who was
traveling on a PRC must have been outside the United States for less
than 1 year, and an LPR who was traveling on a re-entry permit must
have been outside the United States for less than 2 years. Form I-131A
is not an application for a replacement PRC or re-entry permit.
DHS proposes that the fee for Form I-131A does not change. While
the result of the ABC model indicated that the fee should decrease,
Form I-131A requires a different adjudicative process than Form I-131,
including processing by DOS personnel outside of the United States,
which affects the projected cost for Form I-131A. Other travel
documents may be adjudicated inside or outside of the United States,
while the DOS Bureau of Consular Affairs, located outside of the United
States, will process Form I-131A following the closure of most USCIS
international offices.\266\ The proposed fee includes direct costs to
account for the fee DOS charges USCIS to adjudicate Form I-131A
applications, which is approximately $337 per application.\267\ In the
FY 2020 interagency agreement and in this proposed rule, USCIS projects
that DOS will receive approximately 8,000 Forms I-131A each year. In
addition, the proposed fee includes a portion of the cost of RAIO
staff. Among other duties, RAIO oversees the interagency agreement with
the DOS. USCIS may also process some Form I-131A requests at the
remaining offices abroad. However, USCIS is uncertain how many. USCIS
is unable to estimate a workload forecast because the COVID-19 pandemic
forced the remaining USCIS locations abroad to close to the public
shortly after the reorganization. In light of this uncertainty, DHS
decided to maintain the current fee to generate more revenue. DHS will
reassess the fee in future fee reviews.
---------------------------------------------------------------------------

\266\ See USCIS, ``USCIS Will Adjust International Footprint to
Seven Locations,'' available at https://www.uscis.gov/news/news-releases/uscis-will-adjust-international-footprint-seven-locations
(last updated Aug. 9, 2019).
\267\ The FY 2020 interagency agreement between DOS and USCIS
uses an Economy Act rate of $313.11 for the adjudication.
Additionally, State charges a $23.82 cashiering fee for each Form I-
131A. USCIS used FY 2020 rates when calculating the proposed fees.
The total of these two fees is $336.93.
---------------------------------------------------------------------------

K. Separating Fees for Form I-129, Petition for a Nonimmigrant Worker,
by Nonimmigrant Classification

Currently, employers and other qualified filers, such as agents,
sponsoring organizations and investors (collectively referred to as a
``benefit requestor'' or separately referred to as a ``petitioner'' or
``applicant,'' as applicable) may use Form I-129, Petition for a
Nonimmigrant Worker, to submit a benefit request on behalf of a current
or future nonimmigrant worker to temporarily perform services or labor,
or to receive training in the United States.\268\ Using this single
form, petitioners or applicants can file petitions or applications for
many different types of nonimmigrant workers.\269\ Some classifications
also

[[Page 496]]

allow nonimmigrants to ``self-petition'' or file a petition or
application on their own behalf. Some nonimmigrant classifications
require use of Form I-129 supplemental forms, such as the H
Classification Supplement, or additional separate forms, such as Form
I-129S, Nonimmigrant Petition Based on Blanket L Petition. In some
cases, certain petitioners or applicants must pay statutory fees in
addition to a base filing fee. For example, several statutory fees
exist for H and L nonimmigrant workers.\270\ In some cases, petitioners
or applicants pay a single fee for multiple nonimmigrant beneficiaries.
USCIS provides several optional checklists to help navigate the
specific requirements of some nonimmigrant classifications.
---------------------------------------------------------------------------

\268\ See USCIS, ``Temporary (Nonimmigrant) Workers,'' available
at https://www.uscis.gov/working-united-states/temporary-nonimmigrant-workers (last updated Sept. 7, 2011). See also 8 CFR
214.2(h)(2)(i)(A) (Oct. 1, 2020) (stating that ``A United States
employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3
temporary employee must file a petition on Form I-129, Petition for
Nonimmigrant Worker, as provided in the form instructions.'').
\269\ For example, nonimmigrants workers in the following
classifications: E-1, E-2, E-2C, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN1, and TN2. See Form
I-129, Petition for a Nonimmigrant Worker, at https://www.uscis.gov/i-129 (last updated April 23, 2021).
\270\ Various statutory fees apply to H and L nonimmigrants. For
more information on the fees and statutory authority, see USCIS, ``H
and L Filing Fees for Form I-129, Petition for a Nonimmigrant
Worker,'' available at https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker (last updated/reviewed
Feb. 2, 2018).
---------------------------------------------------------------------------

In the 2020 fee rule, DHS separated Form I-129 into the following
forms: Form I-129E&TN, Petition for Nonimmigrant Worker: E and TN
Classifications; Form I-129H1, Petition for Nonimmigrant Worker: H-1
Classifications; Form I-129H2A, Petition for Nonimmigrant Worker: H-2A
Classification; Form I-129H2B, Petition for Nonimmigrant Worker: H-2B
Classification; Form I-129L, Petition for Nonimmigrant Worker: L
Classifications; Form I-129O, Petition for Nonimmigrant Worker: O
Classifications; and Form I-129MISC, Petition for Nonimmigration
Worker: H-3, P, Q, or R Classifications. 8 CFR 106.2(a)(3) (Oct. 2,
2020). DHS and USCIS believed that splitting the form and proposing
several different fees would simplify or consolidate the information
requirements for petitioners and applicants as well as better reflect
the cost to adjudicate each specific nonimmigrant classification. 84 FR
62307.
In the 2020 fee rule, DHS also limited the number of multiple
beneficiaries that could be requested on a single petition for
nonimmigrant worker, provided a different fee for petitions for up to
25 named beneficiaries versus petitions for more than 25 named
beneficiaries, and required that if a petition includes more than 25
beneficiaries, an additional petition is required. 8 CFR
214.2(h)(2)(ii) (Oct. 2, 2020). DHS estimated that it requires less
time and resources to adjudicate a petition with unnamed workers than
one with named workers. USCIS runs background checks on named workers,
but it cannot do so for unnamed workers. After a petition for unnamed
workers is approved, the petitioner finds workers and then the workers
apply for nonimmigrant visas with DOS, who will then vet the worker
before adjudicating the visa application. Therefore, USCIS believes
that it takes less time for USCIS immigration services officers to
adjudicate a petition with unnamed workers. 84 FR 62309.
In this rule, DHS proposes different fees for Form I-129 based on
the nonimmigrant classification being requested in the petition, the
number of beneficiaries on the petition, and, in some cases, according
to whether the petition includes named or unnamed beneficiaries. The
proposed fees are calculated to better reflect the costs associated
with processing the benefit requests for the various categories of
nonimmigrant worker. The current base filing fee for Form I-129 is
$460. See 8 CFR 103.7(b)(1)(i)(I) (Oct. 1, 2020). This base filing fee
is paid regardless of how many nonimmigrant workers will benefit from
the petition or application, the type of worker (for example,
landscaper, chef, scientist, computer programmer, physician, athlete,
musician, etc.), whether an employee is identified, and without
differentiating the amount of time it takes to adjudicate the different
nonimmigrant classifications. In order to reflect these differences,
DHS is proposing a range of fees for petitions and applications for
nonimmigrant workers, listed in Table 19 and explained in the
subsequent sections. USCIS believes the proposed different fees will
better reflect the cost to adjudicate each specific nonimmigrant
classification.
In 2017, the DHS Office of Inspector General (OIG) released a
report on H-1B visa participants.\271\ It discussed how USCIS verifies
H-1B visa participants through the Administrative Site Visit and
Verification Program (ASVVP). ASVVP includes site visits on all
religious worker petitioners, including petitioners for R
nonimmigrants, as well as randomly selected site visits for certain H-
1B and L workers to assess whether petitioners and beneficiaries comply
with applicable immigration laws and regulations. As a result of the
OIG audit, USCIS began to collect better information on the costs
associated with ASVVP. For example, ASVVP now uses unique project and
task codes in the USCIS financial system to track spending. Based on FY
2020 spending, USCIS estimates that it may spend $8.4 million for ASVVP
payroll in the FY 2022/2023 fee review budget. Additionally, USCIS
tracks ASVVP hours by form type in the FDNS Data System, which USCIS
uses to identify fraud and track potential patterns. In the FY 2022/
2023 fee review, USCIS used some of this new information to identify
distinct costs for these site visits. USCIS used the ASVVP hours by
immigration benefit request to assign the costs of site visits to Forms
I-129, I-360, and I-829. The proposed fees would result in the cost of
ASVVP being covered by the fees paid by the petitioners in proportion
to the extent to which ASVVP is being used for that benefit request.
---------------------------------------------------------------------------

\271\ DHS OIG, USCIS Needs a Better Approach to Verify H-1B Visa
Participants (Oct. 20, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-18-03-Oct17.pdf.
---------------------------------------------------------------------------

Additionally, USCIS now captures adjudication hours for
nonimmigrant worker petitions based on the classification for which the
petition is filed (see discussion of Completion Rates in section
V.B.2.). Therefore, the proposed fees include the costs associated with
the estimated adjudication hours for each of the new petitions being
proposed in this rule.
BILLING CODE 9111-97-P

[[Page 497]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.057

BILLING CODE 9111-97-C
1. Form I-129, Petition for Nonimmigrant Worker: H-1 Classification
The H-1B nonimmigrant program is for individuals who will perform
services in a specialty occupation, services relating to a Department
of Defense cooperative research and development project or coproduction
project, or services as a fashion model who is of distinguished merit
and ability, while the H-1B1 nonimmigrant program is for nationals of
Singapore or Chile engaging in specialty occupations. See INA sec.
101(a)(15)(H)(i)(b) and (a)(15)(H)(i)(b1); 8 U.S.C.
1101(a)(15)(H)(i)(b) and (a)(15)(H)(i)(b1).\272\ DHS proposes a fee of
$780 for Form I-129 petitions when filed for H-1B and H-1B1
nonimmigrant classifications. The proposed fee more accurately
incorporates the direct cost of USCIS fraud prevention efforts for H-1B
workers and other planned changes. DHS does not propose any changes to
statutory fee amounts for certain H-1B petitioners where it does not
have the authority to change the amount of these fees.\273\
---------------------------------------------------------------------------

\272\ See USCIS, ``H-1B Specialty Occupations, DOD Cooperative
Research and Development Project Workers, and Fashion Models,''
available at https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models (last updated Feb. 5,
2021).
\273\ 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 Treasury. USCIS retains five percent of the
$1,500 or $750 American Competitiveness and Workforce Improvement
Act fee. The remainder goes to the Department of Labor (DOL) and the
National Science Foundation. USCIS keeps one-third of the $500 Fraud
Detection and Prevention fee, while the remainder is split between
the DOS and the DOL. These statutory fees are in addition to the
current Form I-129 fee of $460 and optional premium processing fee
of $1,500 or $2,500. See USCIS, ``H and L Filing Fees for Form I-
129, Petition for a Nonimmigrant Worker,'' available at https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker (last updated/reviewed Feb. 2, 2018). Premium
processing fees are available at https://www.uscis.gov/i-907 (last
updated Dec. 21, 2020).
---------------------------------------------------------------------------

2. Form I-129, Petitions for H-2A or H-2B Classifications
The H-2A visa program allows U.S. employers or U.S. agents who meet
specific regulatory requirements to bring foreign nationals to the
United States to fill temporary agricultural jobs.\274\ The H-2B visa
program allows U.S. employers or U.S. agents who meet specific
regulatory requirements to bring foreign nationals to the United States
to fill temporary nonagricultural jobs.\275\ On March 6, 2017, the OIG
issued an

[[Page 498]]

audit report after reviewing whether the fee structure associated with
H-2 petitions is equitable and effective.\276\ OIG identified a number
of issues and provided recommendations to address the issues. In
response to OIG recommendations, USCIS proposes the following changes:
---------------------------------------------------------------------------

\274\ See USCIS, ``H-2A Temporary Agricultural Workers,''
available at https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers (last updated Jan. 12,
2021).
\275\ See USCIS, ``H-2B Temporary Non-Agricultural Workers,''
available at https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers (last updated Feb.
2, 2021). H-2B petitioners who file with USCIS are required to pay a
$150 Fraud Detection and Prevention fee per petition regardless of
the number of beneficiaries to which the petition pertains. DHS does
not propose any change to this statutory fee because it lacks the
authority to do so by rulemaking. See INA secs. 214(c)(13), 286(v);
8 U.S.C. 1184(c)(13), 1356(v). This statutory fee is in addition to
the current Form I-129 fee of $460 and optional premium processing
fee of $1,500.
\276\ DHS OIG, ``H-2 Petition Fee Structure Is Inequitable and
Contributes to Processing Errors'' (Mar. 6, 2017), available at
https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-42-Mar17.pdf.
---------------------------------------------------------------------------

Separate fees for petitions with named workers and
petitions with unnamed workers;
Limit the number of named workers that may be included on
a single petition to 25.
DHS proposes separate H-2A and H-2B fees for petitions with named
workers and unnamed workers. Currently, petitions for H-2A or H-2B
workers may include named or unnamed workers. Petitioners must name
workers when: (1) the petition is filed for a worker who is a national
of a country not designated by the Secretary of Homeland Security as
eligible to participate in the H-2A or H-2B programs; or (2) the
beneficiary is in the United States. See 8 CFR 214.2(h)(2)(iii) (Oct.
1, 2020). In addition, USCIS may require the petitioner to name H-2B
workers where the name is needed to establish eligibility for H-2B
nonimmigrant status. USCIS estimates that it requires less time and
resources to adjudicate a petition with unnamed workers than one with
named workers. USCIS runs background checks on named workers but cannot
do so for unnamed workers. After the petition is approved, the
petitioner finds workers and the worker applies for a nonimmigrant visa
with DOS, who will then vet the worker. The 2020 fee rule relied on
separate USCIS estimated hours per petition for named or unnamed
beneficiaries. In FY 2021, USCIS began tracking Form I-129 adjudication
hours by petitions for named or unnamed beneficiaries. This proposal is
based on those hours for the first 6 months of FY 2021, which was the
most recent available at the time of the FY 2022/2023 fee review. USCIS
data indicate that it takes less time for a USCIS immigration services
officer to adjudicate a petition with unnamed workers. The proposed
fees reflect the average adjudication time estimated by USCIS.
USCIS proposes to implement a limit of 25 named beneficiaries per
petition. Proposed 8 CFR 214.2(h)(2)(ii), (h)(5)(i)(B). Currently,
there is no limit on the number of named or unnamed workers that may be
on a single petition. USCIS currently charges a flat fee regardless of
whether a petition includes one or hundreds of named temporary
nonimmigrant workers. However, because USCIS completes a background
check for each named beneficiary, petitions with more named
beneficiaries require more time and resources to adjudicate than
petitions with fewer named beneficiaries. This means the cost to
adjudicate a petition increases with each additional named beneficiary.
In one case, a petitioner included more than 600 named workers in one
petition.\277\ OIG observed that the flat fee structure (meaning the
same fee regardless of the number of nonimmigrants included in the
petition) disproportionally costs more per nonimmigrant for petitions
with few beneficiaries compared to those with large numbers of
beneficiaries. In other words, petitioners filing petitions with low
named beneficiary counts subsidize the cost of petitioners filing
petitions with high named beneficiary counts.
---------------------------------------------------------------------------

\277\ Id. at 13.
---------------------------------------------------------------------------

OIG's interviews of USCIS immigration services officers indicated
that a maximum of 10 nonimmigrant workers could usually be processed
within a normal workday.\278\ DHS estimates the proposed change will
increase H-2A and H-2B petition filing volume by approximately 1,800
after comparing our H-2A and H-2B petition forecasts for FY 2022/2023
with or without the proposed change. DHS assumes that the total number
of named beneficiaries requested by an employer would remain the same,
so that an employer petitioning for more than 25 named beneficiaries
would file multiple petitions.
---------------------------------------------------------------------------

\278\ Id. at 17.
---------------------------------------------------------------------------

The proposed fees would address the imbalances in the current fee
structure identified by the OIG audit. For example, the proposed $530
fee for an H-2A petition without named workers is $560 less than the
proposed $1,090 fee for an H-2A petition with named workers because the
adjudication of petitions requesting unnamed workers requires less
time.
3. Form I-129, Petition for Nonimmigrant Worker: L Classification
Under current requirements, petitioners sponsoring L nonimmigrant
workers, who are intracompany transferees,\279\ may be required to
submit additional statutory fees or other additional forms to USCIS
along with Form I-129. For example, two statutory fees may apply for L
nonimmigrant workers.\280\ Some petitions require the additional Form
I-129S, Nonimmigrant Petition Based on Blanket L Petition. DHS is not
proposing different fees for managers and executives, because the
agency has no records on the difference in completion rates or costs
for processing petitions for managers and executives. USCIS currently
captures completion rates for H-1B, L, and other types of petitions,
but not for subgroups within classifications, such as managers and
executives. The $1,385 proposed fee is based partly on the average
completion rate for L-1 petitions. The proposed fees also assign the
direct costs of ASVVP site visits, currently used for certain H-1B, L,
and all religious workers, to the specific form for the classification.
---------------------------------------------------------------------------

\279\ The L-1 intracompany transferee nonimmigrant
classification permits a multinational organization to transfer
certain employees from one of its foreign entities to one of its
affiliated entities in the United States. The L-1A classification is
for employees coming to the United States temporarily to perform
services in a managerial or executive capacity. The L-1B
classification is for employees coming to the United States
temporarily to perform services that require specialized knowledge.
See INA sec. 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L).
\280\ Certain L petitioners may have to pay up to $5,000 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
derived from these fees. CBP receives 50 percent of the $4,500 9-11
Response and Biometric Entry-Exit fee revenue and the remaining 50
percent is deposited into the General Fund of the Treasury. USCIS
retains one-third of the $500 Fraud Detection and Prevention fee
revenue, while the remainder is split between the DOS and the DOL.
These statutory fees are in addition to the current Form I-129 fee
of $460 and optional premium processing fee of $2,500. See USCIS,
``H and L Filing Fees for Form I-129, Petition for a Nonimmigrant
Worker,'' available at https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker (last updated Feb. 2,
2018).
---------------------------------------------------------------------------

4. Form I-129, Petition for Nonimmigrant Worker: O Classification
DHS proposes a fee of $1,055 for Form I-129 petitions filed to
request O classifications. Similar to some other proposed changes to
Form I-129, DHS proposes to limit each Form I-129 filed for O
classifications to 25 named beneficiaries.\281\ Proposed and
republished 8 CFR 214.2(o)(2)(iv)(F). As previously discussed in the H-
2A and H-2B section above, limiting the number of named beneficiaries
simplifies and optimizes the adjudication of these petitions, which can
lead to reduced average processing times for a petition. Because USCIS
completes a background check for each named beneficiary, petitions with
more named beneficiaries require more time and resources to adjudicate
than petitions with fewer named

[[Page 499]]

beneficiaries. This means the cost to adjudicate a petition increases
with each additional named beneficiary. Thus, limiting the number of
named beneficiaries may ameliorate the inequity to petitioners filing
petitions with low beneficiary counts of effectively subsidizing the
cost of petitioners filing petitions with high beneficiary counts.
USCIS currently captures adjudication hours for these types of
petitions. As stated in section V.B.2., Completion Rates, the proposed
fee is partly based on these data.
---------------------------------------------------------------------------

\281\ While O-1 petitions are limited to a single named
beneficiary, a petition for O-2 nonimmigrant workers may include
multiple named beneficiaries in certain instances. See 8 CFR
214.2(o)(2)(iii)(F).
---------------------------------------------------------------------------

5. Form I-129, Petition for Nonimmigrant Worker: E and TN
Classifications
DHS proposes a fee of $1,015 for Form I-129 petitions filed for
Treaty Trader (E-1), Treaty Investor (E-2), E-3, and TN
classifications. The Treaty Trader (E-1) and Treaty Investor (E-2)
classifications are for citizens of countries with which the United
States maintains treaties of commerce and navigation. The applicant
must be coming to the United States to engage in substantial trade
principally between the United States and the treaty country (E-1), to
develop and direct the operations of an enterprise in which the
applicant has invested or is in the process of investing a substantial
amount of capital (E-2), or to work in the enterprise as an executive,
supervisor, or essentially skilled employee. See INA sec.
101(a)(15)(E), 8 U.S.C. 1101(a)(15)(E); 8 CFR 214.2(e). An E-2 CNMI or
E-2C investor is a noncitizen who seeks to enter or remain in the CNMI
in order to maintain an investment in the CNMI that was approved by the
CNMI government before November 28, 2009. This classification allows an
eligible noncitizen to be lawfully present in the CNMI in order to
maintain the investment during the transition period from CNMI to
Federal immigration law, which was extended by Public Law 115-218, sec.
3(a) on July 24, 2018, and will expire on December 31, 2029. See 48
U.S.C 1806; proposed and republished 8 CFR 214.2(e)(23). The E-3
classification applies to nationals of Australia who are coming to the
United States solely to perform services in a specialty occupation
requiring theoretical and practical application of a body of highly
specialized knowledge and at least the attainment of a bachelor's
degree, or its equivalent, as a minimum for entry into the occupation
in the United States. See INA secs. 101(a)(15)(E) and 214(i)(1); 8
U.S.C. 1101(a)(15)(E) and 1184(i)(1). The TN classification was
originally created to implement part of the trilateral North American
Free Trade Agreement (NAFTA) between Canada, Mexico, and the United
States. NAFTA was replaced by the U.S.-Mexico-Canada Agreement (USMCA).
The USMCA entered into force on July 1, 2020. The USMCA did not make
any changes to the Immigration chapter of NAFTA that have significance
for this proposed rule. The USMCA retains all substantive elements of
the former NAFTA, and the TN designation continues to be used for
NAFTA/USMCA professionals.\282\ TN admissions under NAFTA were governed
by the list of Professionals in Appendix 1603.D.1 to Annex 1603 of
NAFTA. Under the USMCA, TN admissions are governed by the (identical)
list of Professionals now found in USMCA Chapter 16 Appendix 2. For the
purposes of discussing TN classification, this document uses the term
``USMCA'' but applies to nonimmigrants under both the former ``NAFTA''
and ``USMCA'' interchangeably. In accordance with the USMCA, a citizen
of Canada or Mexico who seeks temporary entry as a businessperson to
engage in certain business activities at a professional level may be
admitted to the United States. See INA sec. 214(e), 8 U.S.C. 1184(e); 8
CFR 214.6; proposed 8 CFR 106.2(a)(3)(viii). USCIS does not have
separate completion rates for the E and TN classifications. Currently,
USCIS adjudicators report hours on these classifications in a catch-all
Form I-129 category.
---------------------------------------------------------------------------

\282\ See United States-Mexico-Canada Agreement Implementation
Act, Public Law 116-113 (2020).
---------------------------------------------------------------------------

6. Form I-129, Petition for Nonimmigrant Worker: H-3, P, Q, or R
Classifications
DHS proposes to create a fee of $1,015 for the remaining
nonimmigrant worker classifications: H-3, P, Q, and R. See proposed 8
CFR 106.2(a)(3)(viii). The costs used to determine the proposed fee for
these classifications aggregate all identifiable costs associated with
the adjudication of these different visa classifications, including the
costs of administering site visits for R visa workers under the
ASVVP.\283\ As previously discussed in sections 2 and 4, DHS proposes
to limit petitions for H-3, P, Q, or R classifications that allow 1
petition to be filed for multiple beneficiaries to 25 named
beneficiaries. Proposed 8 CFR 214.2(h)(2)(ii), 8 CFR
214.2(p)(2)(iv)(F), and 8 CFR 214.2(q)(5)(ii). As stated previously,
this change is expected to simplify and optimize the adjudication of
these petitions, which is expected to lead to reduced processing times
and reduced completion rates. Because USCIS completes a background
check for each named beneficiary, petitions with more beneficiaries
require more time and resources to adjudicate than petitions with fewer
named beneficiaries. This means the cost to adjudicate a petition
increases with each additional named beneficiary. Thus, limiting the
number of named beneficiaries may ameliorate the inequity to
petitioners filing petitions with low beneficiary counts of effectively
subsidizing the cost of petitioners filing petitions with high
beneficiary counts. USCIS does not have separate completion rates for
the H-3, P, Q, or R classifications. Currently, USCIS adjudicators
report hours on these classifications in a catch-all Form I-129
category. As such, DHS lacks the information to propose separate fees
for each of these classifications.
---------------------------------------------------------------------------

\283\ The estimated cost of ASVVP for this proposed fee is $69.
See the Direct Costs column of Appendix Table 6 in the supporting
documentation in the docket.
---------------------------------------------------------------------------

DHS proposes to republish a paragraph of regulatory text that
incorporates statutory changes and longstanding practices that allow
petitions for multiple P nonimmigrants. See proposed republished 8 CFR
214.2(p)(2)(iv)(F). Specifically, DHS proposes and republishes a
reference to ``team'' to account for INA sec. 214(c)(4)(G), 8 U.S.C.
1184(c)(4)(G) (The Secretary of Homeland Security shall permit a
petition under this subsection to seek classification of more than one
alien as a nonimmigrant under section 1101(a)(15)(P)(i)(a) of this
title), which was added in 2006 and mandates DHS to allow a petitioner
to include multiple P-1A athletes in one petition. See id. and Public
Law 109-463, 120 Stat. 3477 (2006). DHS also proposes to retain the
revisions from the 2020 final fee rule as set out in proposed 8 CFR
214.2(p)(2)(iv)(F) because certain athletic teams applying for P-1
nonimmigrant classification and groups applying for P-2 or P-3
nonimmigrant classification are not necessarily required to establish
reputation of the team or group as an entity. Id.
7. Separating Form I-129 Into Multiple Forms
DHS is not separating Form I-129 into multiple forms in this rule
as it did in the 2020 fee rule, but may take that action separately as
a revision of the currently approved Form I-129 information collection
under the PRA. See 86 FR 46260, 86 FR 46261, and 86 FR 46263 (August
18, 2021). Although DHS separated Form I-129 into different forms in
the 2020 fee rule, the form and its instructions can be revised in that
same way using the procedures

[[Page 500]]

provided in 5 CFR part 1320 and obtaining approval from the OMB.\284\
As stated in section V.E.1 of this preamble, form numbers are included
for informational purposes, but USCIS may collect fees for immigration
benefit requests regardless of the assigned form number. If the Form I-
129 is separated into smaller forms with different names in the future,
then the new, separate forms for nonimmigrant petitions will each have
the same fee that is established for that nonimmigrant classification
if this rule is final. Finally, as previously noted in the preamble,
DHS proposes to remove references to ``Form I-129'' from 8 CFR. See
e.g. 8 CFR 214.1 and 214.2 (Oct. 1, 2020); proposed 8 CFR 214.1 and
214.2.
---------------------------------------------------------------------------

\284\ The Administrative Procedure Act excepts ``. . . rules of
agency organization, procedure or practice.'' 5 U.S.C. 553(b)(A);
James v. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C.
Cir. 2000).
---------------------------------------------------------------------------

8. Commonwealth of the Northern Mariana Islands Fees
DHS proposes to create a fee of $1,015 for Form I-129CW, Petition
for a CNMI-Only Nonimmigrant Transitional Worker. See proposed 8 CFR
106.2(a)(4). Two recent public laws affected statutory fees for the
CNMI. The Northern Mariana Islands Economic Expansion Act, Public Law
115-53, section 2, 131 Stat. 1091, 1091 (2017) (2017 CNMI Act)
increased the CNMI education funding fee from $150 to $200. See 48
U.S.C. 1806(a)(6)(A)(i). USCIS began accepting this increased fee on
August 23, 2017.\285\ DHS proposes to make conforming edits to the fee
for the Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form
I-129CW, because of this statutory change. See 8 CFR 103.7(b)(1)(i)(J)
(Oct. 1, 2020); proposed 8 CFR 106.2(c)(7). Employers must pay the fee
for every beneficiary that they seek to employ as a CNMI-only
transitional worker. The fee must be paid at the time the petition is
filed. By statute, since the fee is for each worker approved, USCIS
refunds the CNMI education funding fee if the petition is not approved.
The fee is a recurring fee that petitioners must pay every year. A
prospective employer requesting issuance of a permit with a validity
period longer than 1 year must pay the fee for each year of requested
validity. USCIS transfers the revenue from the CNMI education funding
fee to the treasury of the Commonwealth Government to use for
vocational education, apprenticeships, or other training programs for
United States workers. The Northern Mariana Islands U.S. Workforce Act
of 2018, Public Law 115-218, sec. 3, 132 Stat. 1547 (2018) (2018 CNMI
Act), granted DHS the authority to adjust the fee for inflation. See 48
U.S.C. 1806(a)(6)(A)(ii).
---------------------------------------------------------------------------

\285\ USCIS, ``New Legislation Increases Availability of Visas
for CNMI Workers for Fiscal Year 2017,'' available at https://www.uscis.gov/news/news-releases/new-legislation-increases-availability-visas-cnmi-workers-fiscal-year-2017 (last updated on
Aug. 28, 2017).
---------------------------------------------------------------------------

DHS proposes a $10 adjustment to the $200 CNMI education funding
fee based on the methodology described in the authorizing statute.\286\
Beginning in FY 2020, DHS may adjust the CNMI education funding fee
once per year by notice in the Federal Register.\287\ The adjustment
must be based on the annual change in the CPI-U published by the BLS.
See proposed 8 CFR 106.2(c)(7)(iii). Therefore, the CNMI education
funding fee would be $210 (rounded to the nearest $5 increment).
Although the law provides DHS with explicit authority to adjust the fee
for inflation based on the CPI-U, DHS includes this proposed increase
along with other fees that USCIS collects. DHS took a similar approach
when it first increased the premium processing fee in 2010. See 75 FR
33477. The final rule will establish an amount based upon the latest
published annual CPI-U before the final rule publication. DHS may
revisit inflation increases to the CNMI education funding fee in future
fee rules or separately.
---------------------------------------------------------------------------

\286\ The unadjusted annual average CPI-U for 2019 was 255.657.
See BLS, CPI for All Urban Consumers (CPI-U) 1982-84=100
(Unadjusted)--CUUR0000SA0, available at https://data.bls.gov/cgi-bin/surveymost?bls (last visited Feb. 18, 2022). In 2021, it was
270.97, a 15.313 or approximately a 5.99 percent increase. Id. The
$200 fee adjusted for inflation is approximately $212, a $12
increase. When rounded to the nearest $5, the inflation adjusted fee
would be $210.
\287\ Beginning in FY 2020, the Secretary of Homeland Security,
through notice in the Federal Register, may annually adjust the
supplemental fee imposed under clause (i) by a percentage equal to
the annual change in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the Bureau of Labor Statistics (BLS).
48 U.S.C. 1806(a)(6)(A)(ii).
---------------------------------------------------------------------------

In addition to authorizing inflation adjustments for the CNMI
education funding fee, the 2018 CNMI Act created a new $50 CNMI fraud
prevention and detection fee. 2018 CNMI Act, sec. 3 (amending 48 U.S.C.
1806(a)(6)(A)(iv)). The new $50 fraud prevention and detection fee is
in addition to other fees that employers must pay for petitions to
employ CNMI-only transitional workers. See proposed 8 CFR 106.2(c)(6).
USCIS began accepting the fee on July 25, 2018.\288\ The new fee is
only due at the time of filing and is a single $50 fee per petition,
not a fee charged per beneficiary like the CNMI education funding fee.
USCIS must use the revenue for preventing immigration benefit fraud in
the CNMI, in accordance with INA sec. 286(v)(2)(B), 8 U.S.C.
1356(v)(2)(B). See also 48 U.S.C. 1806(a)(6)(A)(iv), as amended by 2018
CNMI Act, sec. 3.
---------------------------------------------------------------------------

\288\ USCIS, ``New Law Extends CNMI CW-1 Program, Mandates New
Fraud Fee, and Will Require E-Verify Participation,'' available at
https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation (last
updated on Oct. 23, 2018).
---------------------------------------------------------------------------

DHS also proposes conforming edits to CNMI regulations regarding
fee waivers and biometric services. Currently, some CNMI applicants and
beneficiaries may qualify for a fee waiver based on inability to pay or
other reasons. See 8 CFR 214.2(e)(23)(xv), (w)(5), and (w)(14)(iii).
Generally, fee waivers are not available for employment-based
applications and petitions. However, when DHS established the CW-1
petition fees, it decided to treat the CNMI with more flexibility in
this regard. See 76 FR 55513-55514 (Sept. 7, 2011). DHS proposes in
this rule to continue to offer fee waivers for CNMI applicants filing
Form I-129CW and Form I-539. See proposed 8 CFR 106.3. Currently, CNMI
beneficiaries may pay a biometric services fee when seeking a grant or
extension of CW-1 status in the CNMI. See 76 FR 55513-55514; 8 CFR
214.2(e)(23)(viii) and (w)(16). As explained in section VIII.E.,
Changes to Biometric Services Fee, DHS proposes to incorporate the cost
of biometric services into the underlying immigration benefit request
fees. This proposed change would place the entire financial burden for
CNMI petition fees on the employer, eliminating any fees paid by the
beneficiary. See proposed 8 CFR 106.2, 214.2(v)(23)(viii) and (w)(16).
DHS does not propose to limit the number of named beneficiaries
included in a single I-129CW filing. USCIS does not have separate
completion rates for CNMI petitions. Currently, USCIS adjudicators
report hours for Form I-129CW in a catch-all Form I-129 category.
9. H-1B Electronic Registration Fee
In 2019, DHS established a $10 registration fee per beneficiary for
H-1B petitions. See ``Registration Fee Requirement for Petitioners
Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens,'' 84 FR
60307 (Nov. 8, 2019). The $10 registration fee is separate from and in
addition to the H-1B petition filing fee. See 84 FR 60309. USCIS
requires the registration fee regardless of whether the potential
petitioner's registration is selected. USCIS lacked sufficient data to
precisely estimate the costs of the

[[Page 501]]

registration process at the time, but implemented the $10 fee to
provide an initial stream of revenue to fund part of the costs to USCIS
of operating the registration program. Id. DHS stated that USCIS would
review the fee in the future. Id. DHS proposes $215 based on the
results of the FY 2022/2023 fee review. See proposed 8 CFR
106.2(c)(11).
USCIS lacks information on the direct cost of H-1B registration,
but USCIS estimated the indirect costs of the H-1B registration program
using the same methods as it did to calculate other fees. The
methodology for estimating the cost provides results that are similar
to the USCIS Immigrant Fee, which was established as part of the FY
2010/2011 fee rule. See 75 FR 58979. However, the H-1B registration fee
contains and funds fewer activities. DHS bases the proposed fee on the
activity costs for the following activities:

Inform the Public
Management and Oversight

As such, the proposed fee is based on the estimated cost of these
two activities. See the supporting documentation included in the docket
for this rulemaking for more information on USCIS fee review
activities. The proposed fee does not include activity costs for paper
intake because registration is only available online. It does not
include the cost of any adjudication activities because the fee is only
for registration, not a decision. If selected, the petitioner must file
Form I-129 separately.
DHS understands that an increase from $10 to $215 may appear to be
exorbitant at first glance. However, the $10 fee was established simply
to cover a small portion of the costs of the program rather than
perpetually leaving 100 percent of those costs to be funded by the fees
paid for other unrelated requests. As stated in the rule setting the
fee, ``DHS proposed a $10 fee to provide an initial stream of revenue
to mitigate potential fiscal effects on USCIS. Following implementation
of the registration fee provided for in this rule, USCIS will gather
data on the costs and burdens of administering the registration process
in its next biennial fee review to determine whether a fee adjustment
is necessary to ensure full cost recovery.'' 84 FR 60309. DHS sees no
reasons why U.S. employers who wish to temporarily employ foreign
workers in specialty occupations should not cover the expenses of the
H-1B registration program, which is a prerequisite to being able to
file a nonimmigrant petition for a foreign worker in the H-1B
nonimmigrant classification. Even with the higher registration fee
requirement, the registration process is still expected to result in a
net cost-savings to USCIS and petitioners due to cost savings
associated with unselected petitions in DHS' Registration Requirement
for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject
Aliens.\289\
---------------------------------------------------------------------------

\289\ See 84 FR 940.
---------------------------------------------------------------------------

L. Premium Processing--Business Days

DHS proposes to define the premium processing timeframe for all
immigration benefit request types designated for premium processing to
only include business days.\290\ DHS is proposing to define business
days as days that the Federal Government is open for business, which do
not include weekends, federally observed holidays, or days on which
Federal Government offices are closed, such as for weather-related or
other reasons.\291\ The closure may be nationwide or in the region
where the adjudication of the benefit for which premium processing is
sought will take place. The former INS established the current premium
processing timeframe interpretation in June 2001. See ``Establishing
Premium Processing Service for Employment-Based Petitions and
Applications,'' 66 FR 29682. The rule's preamble stated that the
District of Columbia Appropriations Act of 2001 (Pub. L. 106-553)
``specified that the Service was required to process applications under
the Premium Processing Service in 15 calendar days,'' as part of a
general description of the statute. 66 FR 29682.
---------------------------------------------------------------------------

\290\ See 8 CFR 106.4(e). DHS lengthened the timeframe for USCIS
to take an adjudicative action on petitions filed with a request for
premium processing from 15 calendar days to 15 business days in the
2020 fee rule. See 8 CFR 106.4 (Oct. 2, 2020). However, on March 30,
2022, USCIS published the Implementation of the Stopgap USCIS
Stabilization Act rule (Premium Processing Rule), which amended
USCIS premium processing regulations by updating the regulations to
include the fees established by the Emergency Stopgap USCIS
Stabilization Act for immigration benefit requests that were
designated for premium processing on August 1, 2020, and established
new fees and processing timeframes consistent with section 4102(b)
of the Emergency Stopgap USCIS Stabilization Act. See 87 FR 18227.
The Premium Processing Rule explained that USCIS was not calculating
premium processing timeframes in business days because at that time
8 CFR 106.4 was not being administered as a result of the injunction
staying the 2020 Fee Rule in ILRC and NWIRP. The Premium Processing
rule explained that by removing the reference to business days in
the premium processing regulations, the premium processing
regulations will be clear and consistent with current practices and
requirements and not be a source of confusion to the public. Id. at
18233.
\291\ DHS recognizes that calculating premium processing
timeframes in business days is inconsistent with the definition of
``day'' in 8 CFR 1.2, which provides that when computing the period
of time for taking any action [in chapter I of title 8 of the CFR]
including the taking of an appeal, [it] shall include Saturdays,
Sundays, and legal holidays, except that when the last day of the
period computed falls on a Saturday, Sunday, or a legal holiday, the
period shall run until the end of the next day which is not a
Saturday, Sunday, or a legal holiday. However, having recognized the
definition of ``day'' in 8 CFR 1.2, DHS believes for the reasons
stated and explained in the preamble that it is necessary for DHS to
define premium processing timelines in business days.
---------------------------------------------------------------------------

DHS has re-examined the District of Columbia Appropriations Act of
2001 and found that it did not define the timeframe by which INS was
required to process applications under the Premium Processing Service
and was, in fact, silent on the issue.\292\ Thus, DHS has determined
that the June 1, 2001, interim rule stating a 15 calendar day
processing timeframe was required by the District of Columbia
Appropriations Act of 2001 was incorrect because there is nothing in
that statute establishing a timeframe in which premium processing must
occur, let alone how that timeframe is to be calculated. Without a
specific timeframe or an explanation of how that timeframe is to be
calculated, DHS may interpret its authority under INA sec. 286(u), 8
U.S.C. 1356(u), to define the timeframe in which premium processing
must occur. Thus, DHS has reevaluated its old statutory interpretation
to see if the premium processing program and premium processing
timeframes can be revised to make the program more serviceable for
USCIS while continuing to provide an expedited level of processing for
their immigration petitions and applications.\293\
---------------------------------------------------------------------------

\292\ See Public Law 106-553 (2000) sec. 112.
\293\ DHS also notes that section 4102(b) of the USCIS
Stabilization Act provides premium processing times of 30 and 45
days, indicating that Congress considers periods that are two and
three times longer than 15 days to be premium service.
---------------------------------------------------------------------------

When USCIS is unable to complete premium processing within the
required timeframe, USCIS must suspend premium processing. When USCIS
suspends premium processing, it must refund the fees for the premium
processing requests it cannot complete. In recent years, USCIS has
suspended for certain categories of employment-based petitions when it
determines that it has inadequate resources to devote to premium
processing requests, and might otherwise refund a large number of Form
I-907 fees for failure to meet the required processing timeframe.\294\
---------------------------------------------------------------------------

\294\ USCIS has not suspended premium processing for any
requests since the USCIS Stabilization Act became law. That law
provides that DHS may suspend the availability of premium processing
for designated immigration benefit requests only if circumstances
prevent the completion of processing of a significant number of such
requests within the required period. 8 U.S.C. 1356(u)(5)(A). While
that law reiterates the standard that USCIS has generally followed
in suspending premium processing, DHS does not know if that
provision will reduce future suspensions by itself.

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

[[Page 502]]

In certain instances, USCIS has been unable to maintain existing
premium processing timeframes due to the high volume of incoming
petitions and a significant surge in premium processing requests.\295\
For example, USCIS twice suspended premium processing before cap-
subject H-1B season, which is the largest premium processing workload.
In one such circumstance, USCIS initially announced it expected the
suspension to last up to 6 months then extended it for several more
months.\296\ The suspension not only lasted longer than USCIS initially
announced, but it also lasted well past the start date (October 1) for
H-1B cap employees. As a result, this led to uncertainty for both
employers and employees, because the employees were not able to timely
start when the employers requested and neither party could predict when
the employees would ultimately begin their employment. In addition to
the harm and uncertainty that suspensions cause employers, when premium
processing must be suspended, USCIS is not able to obtain the revenue
from premium processing to offset its costs and for other uses. USCIS
currently shifts adjudicators and other resources to address seasonal
increases in filings. USCIS will also transfer files to offices with
more processing capacity as needed. However, shifting adjudicators or
files to focus on premium processing does not achieve the efficiency
needed as higher volumes of incoming petitions or applications limit
USCIS' ability to complete processing within the required processing
timeframe.
---------------------------------------------------------------------------

\295\ See USCIS, ``USCIS Will Temporarily Suspend Premium
Processing for All H-1B Petitions,'' available at https://www.uscis.gov/archive/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions (last updated March 3, 2017); see also
``USCIS Will Temporarily Suspend Premium Processing for Fiscal Year
2019 H-1B Cap Petitions,'' available at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions (last updated March 20, 2018).
\296\ See USCIS, ``USCIS Resumes Premium Processing for Fiscal
Year 2019 H-1B Cap Petitions,'' available at https://www.uscis.gov/news/alerts/uscis-resumes-premium-processing-for-fiscal-year-2019-h-1b-cap-petitions (last updated Jan. 25, 2019).
---------------------------------------------------------------------------

USCIS also had to suspend premium processing due to the COVID-19
pandemic.\297\ At that time, all the petitions eligible for premium
processing were filed on paper at the service centers. Service centers
needed time to adapt workspace configurations and procedures to ensure
physical distancing and other safety protocols for employees working on
site and picking up and dropping off files. Contracted employees had to
be in the building to receive the petitions, data enter them into the
system, put the files together, and deliver the files to the
adjudicators. The adjudicators had to come into the building to pick up
and drop off the files. The requirement of physical presence in the
building greatly inhibited USCIS' ability to process petitions within
the allotted timeframe. Irrespective of the COVID-19 pandemic, many of
the benefit requests eligible for premium processing are still filed
manually on paper, which necessarily requires USCIS employees and
contractors to physically handle such benefit requests. If something
should occur, such as a natural or manmade disaster, that interferes or
prevents USCIS employees or contractors from being able to adjudicate
benefit requests seeking premium processing, those workdays lost should
not count against the premium processing timeframe.
---------------------------------------------------------------------------

\297\ See USCIS, ``USCIS Announces Temporary Suspension of
Premium Processing for All I-129 and I-140 Petitions Due to the
Coronavirus Pandemic,'' available at https://www.uscis.gov/news/alerts/uscis-announces-temporary-suspension-of-premium-processing-for-all-i-129-and-i-140-petitions-due-to (last updated Mar. 27,
2020).
---------------------------------------------------------------------------

USCIS employees are limited in the hours they are available to work
by collective bargaining agreements and contracted staff are limited to
the hours provided by contract, and both Federal employees and
contracted staff are prohibited from working outside regular business
hours or while not in a pay status. If USCIS needs its employees to
work overtime to process these petitions and applications within a
certain timeframe, it must of course pay them the applicable overtime
pay rate. Because USCIS adjudication operations are fee funded, USCIS
does not always have sufficient funds to support overtime; therefore,
it must calculate the premium processing timeframes based on the days
in which it can actually process petitions and applications (business
days). USCIS is not asserting that all adjudications will increase to
the full allowance of business days, however this change provides
needed flexibility for holidays, weather emergencies, and other
circumstances outside the agency's control.
In addition, the USCIS Stabilization Act prohibits USCIS from
making premium processing available if it adversely affects processing
times for immigration benefit requests not designated for premium
processing or the regular processing of immigration benefit requests so
designated. See USCIS Stabilization Act, sec. 4102(c), Public Law 116-
159 (Oct. 1, 2020). The USCIS Stabilization Act allows for expansion of
premium processing to certain EB-1 and EB-2 (NIW) petitions, which are
more complex adjudications typically containing voluminous evidence and
generally requiring more time to adjudicate than benefit types
previously afforded premium processing. See 8 U.S.C. 1356(u)(2)(B). It
also allows for expansion to Forms I-539 and I-765, which, while less
complex, constitute an exceptionally large filing volume which
necessitates a longer processing time. See 8 U.S.C. 1356(u)(2)(C) and
(D). USCIS must have sufficient staff able to process premium
processing cases during the allotted timeframe.
USCIS cannot expand premium processing, which was specifically
requested by many commentors in the previous fee rule, until it has
sufficient staff to consistently adjudicate within the timeframes.
However, it is difficult to estimate the staff needed to process
petitions during a certain timeframe using calendar days. In 2018,
premium processing was suspended in April, then the suspension was
extended until after the Federal holidays in December and January. In
the last 2 weeks of December 2018, USCIS lost 3 days of processing to
Federal holidays and 4 days to weekends. USCIS cannot hire additional
staff in short periods of time, nor can it reallocate staff without
affecting other processing times. DHS's proposed solution to
consistently offer and expand (as Congress has authorized) premium
processing services is to calculate the timeframe in business days.
Calculating the premium processing timeframes based on the days in
which USCIS is actually processing petitions and applications (business
days) will enable USCIS to make premium processing more consistently
available and expand it to the newly designated classifications and
categories as intended by the USCIS Stabilization Act. This avoids
USCIS having to suspend premium processing, which limits access to more
applicants and petitioners and extends the pending period for
adjudication.
DHS has determined that it is more appropriate for the premium
processing timeframes to be calculated using business days rather than
calendar days and proposes to apply this interpretation to all premium
processing timeframes.\298\ USCIS considers

[[Page 503]]

calculating premium processing timeframes in business days appropriate
because: (1) USCIS can only process petitions and applications on
business days; (2) using calendar days results in inconsistent and
varying timeframes for USCIS to process requests for premium processing
based on holidays and weather emergencies; and (3) using calendars days
causes particular operational challenges when trying to meet the
shorter 15-day premium processing timeframe applicable to certain
immigration benefits. By changing to business days instead of calendar
days, USCIS avoids having to suspend premium processing more frequently
which therefore alleviates the waiting time for applicants and
petitioners.
---------------------------------------------------------------------------

\298\ On October 1, 2020, the USCIS Stabilization Act amended
section 286(u) of the INA, 8 U.S.C. 1356(u), and did not define how
to calculate the timeframe by which USCIS must process applications
under the Premium Processing Service, with section 286(u) of the
INA, 8 U.S.C. 1356(u), still remaining silent on the issue.
---------------------------------------------------------------------------

Separate from this rulemaking, USCIS is providing more flexibility
in paying the premium processing fee. For example, USCIS piloted and
expanded credit card payments for Forms I-129, I-140, and I-907.\299\
USCIS will continue to evaluate options that give employers more
options and flexibility when using premium processing and when filing
petitions in general.
---------------------------------------------------------------------------

\299\ See USCIS, ``USCIS Expands Credit Card Payment Pilot
Program to California Service Center'', available at https://www.uscis.gov/newsroom/alerts/uscis-expands-credit-card-payment-pilot-program-to-california-service-center (last updated Nov. 5,
2021); see also USCIS, ``USCIS Expands Credit Card Payment Pilot
Program to Vermont Service Center'', available at https://www.uscis.gov/newsroom/alerts/uscis-expands-credit-card-payment-pilot-program-to-vermont-service-center (last updated Oct 21, 2021);
see also USCIS, ``USCIS Expands Credit Card Payment Pilot Program to
Form I-140 When Requesting Premium Processing'', available at
https://www.uscis.gov/news/alerts/uscis-expands-credit-card-payment-pilot-program-to-form-i-140-when-requesting-premium-processing (last
updated July 20, 2021); see also USCIS, ``USCIS Expands Credit Card
Payment Pilot Program to Texas Service Center'', available at
https://www.uscis.gov/newsroom/alerts/uscis-expands-credit-card-payment-pilot-program-to-texas-service-center (last updated Sept 9,
2021).
---------------------------------------------------------------------------

M. Permitting Combined Payment of the Premium Processing Fee

DHS proposes to permit the fee to request premium processing
service to be paid with the same remittance as other filing fees.
Proposed 8 CFR 106.4(b). DHS currently requires the fee to request
premium processing service to be paid in a separate remittance from
other filing fees. 8 CFR 106.4(b). DHS has found in its application of
the new premium processing regulations (87 FR 18260) that mandating a
separate payment in all premium processing submissions may impose
unnecessary burdens on petitioners, applicants and DHS. For example,
any limitation on fee intake that must be enforced by USCIS adds a
business requirement for the immigration benefit to be accepted. Each
rule requires system programming and may result in unnecessary
rejections. Thus, DHS proposes, instead of mandating the separate
payment, to provide that USCIS may require the fee to request premium
processing service to be paid in a separate remittance from other
filing fees. Proposed 8 CFR 106.4(b). DHS will maintain the authority
to require separate payments when combined payments need to be
precluded because they cause intake and acceptance problems. USCIS may
require the premium processing service fee be paid in a separate
remittance from other filing fees and preclude combined payments in the
applicable form instructions. Id.

N. Intercountry Adoptions

DHS made several changes in the 2020 fee rule related to
intercountry adoptions. See 8 CFR 204.3 and 204.312 (Oct. 2, 2020). As
discussed elsewhere, DHS and USCIS are enjoined from following the
regulations codified by that rule and DHS is proposing this rule to
replace the 2020 fee rule. Nevertheless, commenters supported the
changes to the handling of Hague Adoption Convention transition cases
and the adoption process improvements in that rule. See 85 FR 46850.
Therefore, in the following sections of this preamble, DHS generally
repeats the rationale that we provided for all of the adoption related
changes from the 2019 proposed rule. See 84 FR 62313-62315.
1. Adjustment to Proposed Fees for Certain Intercountry Adoption-
Specific Forms
DHS proposes to limit the increase of adoption-related fees in this
rule consistent with previous fee rules. See, e.g., 81 FR 73298. DHS
will continue its policy of reducing fee burdens on adoptive families
by covering some of the costs attributable to the adjudication of
certain adoption-related petitions and applications (Forms I-600/600A/
800/800A) through the fees collected from other immigration benefit
requests. If DHS used the estimated fee-paying unit cost from the ABC
model for Form I-600A, then this benefit request would have a fee of at
least $1,454.\300\ DHS believes that it would be contrary to public and
humanitarian interests to impose a fee of this amount on prospective
adoptive parents seeking to adopt a child from another country.
Therefore, DHS proposes to apply the 18 percent weighted average
increase to the current fee of $775, which represents a $145 increase
to $920 for Forms I-600/600A/800/800A. Proposed 8 CFR 106.2(a)(29),
(30), (44), and (45). The percentage increase is not specific to
adoption application and petition fees. It is the same percentage that
DHS uses for all USCIS fees that DHS proposes to keep below full cost.
See section V.B.3. It is worth noting that the proposed fee would
include the cost of biometric services under this proposal. See section
VIII.E. of this preamble. As such, the $920 proposed fee is less than
the current $775 plus the separate $85 fees for biometric services for
two adults in a household. Two adults in a household would pay $945
with the current fee structure for intercountry adoption. Thus, the
proposed fees are $25 less than the current fees for two adults in a
household who file an intercountry adoption-based application or
petition to adopt a single child or birth siblings.
---------------------------------------------------------------------------

\300\ Model output from Appendix Table 4 in the FY 2022/2023
Immigration Examinations Fee Account Fee Review Supporting
Documentation (supporting documentation) in the docket.
---------------------------------------------------------------------------

DHS greatly values its role in intercountry adoptions and places
high priority on the accurate and timely processing of immigration
applications and petitions that enable U.S. families to provide
permanent homes for adopted children from around the world. It also
recognizes that the financial costs, both foreign and domestic,
involved in intercountry adoptions can have significant impacts on
these families. DHS has a history of modifying policies to ease burdens
associated with international adoption. Before 2007, USCIS required
prospective adoptive parents who had not found a suitable child for
adoption within 18 months after approval of their Application for
Advance Processing of an Orphan Petition, Form I-600A, to submit a fee
with their request to extend their approval. Since 2007, USCIS has
permitted adoptive parents to request one extension of their Form I-
600A approval without charge, including the biometric fee. See 72 FR
29864; 8 CFR 103.7(b)(1)(i)(Z) (Oct. 1, 2020). Finally, DHS does not
charge an additional filing fee for an adoption petition filed on
behalf of the first beneficiary child or birth siblings. See 8 CFR
103.7(b)(1)(i)(Z) and (b)(1)(i)(JJ)(1) (Oct. 1, 2020).
DHS also has a history of setting adoption-related fees lower than
the amount suggested by the fee-setting methodology. In the 2010 fee
rule, the calculated fee for adoption petitions and applications (Forms
I-600/I-600A and I-800/I-800A) was $1,455, based on

[[Page 504]]

projected costs. See 75 FR 33461; 8 CFR 103.7(b)(1)(i)(Y), (Z), (II),
(JJ) (Oct. 1, 2020). In the FY 2016/2017 fee review, DHS set the Form
I-600 fee at $775 despite the estimated cost of $2,258. See 81 FR
73299. Shifting the adoption application and petition costs to other
fees is consistent with past DHS efforts and is in the public interest
to support parents of children adopted abroad.
2. Clarification of Fee Exemption for Birth Siblings
DHS proposes to revise and republish amendments to 8 CFR 106.2,
204.3, and 204.313 to clarify the regulations and align them with
current practice that prospective adoptive parents with a valid Form I-
600A or Form I-800A approval are not required to pay a fee for the
first Form I-600 or Form I-800 petition. If they are approved to adopt
more than one child, they are required to pay the filing fee for
additional Form I-600 or Form I-800 petitions unless the beneficiaries
are birth siblings.
To align with current and historical practice, DHS proposes to
clarify in the regulations that this exception is limited to ``birth''
siblings. This approach is consistent with the special treatment
afforded in the INA to ``natural siblings,'' which allows a Form I-600
or Form I-800 petition to be filed for a child up to age 18, rather
than up to age 16, only if the beneficiary is the ``natural sibling''
of another foreign-born child who has immigrated (or will immigrate)
based on adoption by the same adoptive parents. INA sec.
101(b)(1)(F)(ii) and (G)(iii); 8 U.S.C. 1101(b)(1)(F)(ii) and (G)(iii).
While the INA uses the term ``natural sibling,'' DHS generally uses the
term ``birth sibling'' synonymously, which includes half-siblings but
does not include adoptive siblings.
DHS also proposes to remove fee-related language from 8 CFR
204.3(h)(3)(i)(C) and (D) because this language will be covered in 8
CFR 106.2.
3. Suitability and Eligibility Approval Validity Period
DHS proposes to revise and republish the amendments to 8 CFR 204.3
relating to orphan cases under INA sec. 101(b)(1)(F), 8 U.S.C.
1101(b)(1)(F) (non-Convention cases). The proposed revised and
republished revisions to the orphan regulations are necessary to
eliminate disparity between the 18-month approval period for the Form
I-600A, Application for Advance Processing of an Orphan Petition, the
15-month validity period of FBI fingerprint clearances, and the 15-
month approval period for a Form I-800A, Application for Determination
of Suitability to Adopt a Child from a Convention Country, and any
approved extension.
Currently, the approval of a Form I-600A in an orphan case is valid
for 18 months. See 8 CFR 204.3(h)(3)(i) (Oct. 1, 2020). However,
standard USCIS policy has been that the FBI's clearance of a person's
fingerprints is valid for 15 months, thereby creating inconsistency
between the 15-month fingerprint clearance validity and the 18-month
approval validity period for the Form I-600A. This inconsistency was
partially resolved with the ratification of the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption (Hague Adoption Convention) and subsequent codification of 8
CFR 204.312(e)(1), whereby the initial approval period for a Form I-
800A in a Convention case is 15 months from the date USCIS received the
initial FBI response for the fingerprints of the prospective adoptive
parent(s) and any adult members of the household. This 15-month period
also applies to the extension of the Form I-800A approval period for an
additional 15 months from the date USCIS receives the new FBI response
on the fingerprints. Creating parity in the approval periods for
suitability and eligibility determinations provides additional
protections for adopted children and provides consistency and alignment
of the orphan and Hague regulations. Having a standardized 15-month
validity period will also alleviate the burden on prospective adoptive
parents and adoption service providers to manage and monitor multiple
expiration dates. Therefore, DHS proposes to alter the validity period
for a Form I-600A approval in an orphan case to 15 months. See proposed
8 CFR 204.3(b), (d), and (h)(7) and (13). See proposed 8 CFR
204.3(h)(3).\301\
---------------------------------------------------------------------------

\301\ In addition to changing the 18-month period to 15 months,
DHS is removing the internal procedure from 8 CFR 204.3(h)(3)(i)
that provides where documents will be forwarded and how notification
of overseas offices of the approval is handled. DHS is also
correcting a reference to the number of children the prospective
adoptive parents are approved for in the home study to refer to the
number of children the prospective adoptive parents are approved for
in the Form I-600A approval. Finally, DHS is also adding a reference
to proposed 8 CFR 106.2(a)(31) in Sec. 204.3(h)(3)(i), relating to
Form I-600A extension requests.
---------------------------------------------------------------------------

DHS proposes to remove fee-related language from 8 CFR
204.3(h)(3)(ii) because that language would be unnecessarily redundant
with the fee language in proposed 8 CFR 106.2.
4. Form I-600A/I-600, Supplement 3, Request for Action on Approved Form
I-600A/I-600
DHS proposes to revise and republish the regulation that creates a
new form \302\ to further align the processes for adoptions from
countries that are not party to the Hague Adoption Convention (Hague or
Convention) with the processes for adoptions from countries that are
party to that Convention. The proposed form name is Form I-600A/I-600,
Supplement 3, Request for Action on Approved Form I-600A/I-600. The
proposed fee is $455. Proposed 8 CFR 106.2(a)(31). As discussed in the
PRA section of this preamble, the draft Supplement 3 is posted in the
docket of this rulemaking for the public to review and provide
comments.
---------------------------------------------------------------------------

\302\ As defined in 8 CFR 1.2.
---------------------------------------------------------------------------

Currently, prospective adoptive parents face different processes
for requests for action on approved suitability applications in Hague
cases than they do in non-Hague cases. USCIS uses Forms I-800, I-800A,
and I-800A Supplement 3 for Hague cases. USCIS uses Forms I-600 and I-
600A for orphan cases. A fee for Form I-600A/I-600 Supplement 3 would
further align the Form I-600A/I-600 request for action process with the
existing Form I-800A process in four key areas:

1. Suitability and eligibility extensions.
2. New approval notices.
3. Change of country; and
4. Duplicate approval notices.

USCIS adjudicators must reassess whether prospective adoptive
parents are still suitable and eligible to adopt if the prospective
adoptive parents' circumstances have changed after the initial USCIS
suitability determination. The proposed fee would help recover some of
the cost for this work.
Requirements related to a prospective adoptive parent's change in
marital status for the orphan process are similar to the Hague process,
but not identical. This is because the orphan process provides an
option for combination filing, unlike the Hague process. In the orphan
process, a prospective adoptive parent can file their Form I-600
petition on behalf of a specific child together with the supporting
documents for Form I-600A, Application for Advance Processing of an
Orphan Petition, to request that USCIS decide their suitability and
eligibility to adopt at the same time as the child's eligibility. This
is referred to as combination filing.
For Hague cases, prospective adoptive parents cannot use Form I-800
Supplement 3 if their marital status

[[Page 505]]

changes. If the prospective adoptive parent's marital status changes
before they complete the intercountry adoption process, their Form I-
800A approval is automatically revoked. This is because a change in
marital status considerably changes the facts supporting a prior
suitability approval and who the adoptive parents will be. The
prospective adoptive parent must submit a new Form I-800A with an
updated home study. If the prospective adoptive parent had already
filed a Form I-800 based on the approval of the prior Form I-800A, they
must also file a new Form I-800. The prospective adoptive parent must
pay a new application fee unless their Form I-800A is still pending.
See 8 CFR 204.312(e)(2).
Similarly, a prospective adoptive parent will not be able to use
Form I-600A/I-600 Supplement 3 for the orphan process if their marital
status changes. If the prospective adoptive parent's marital status
changes before they complete the intercountry adoption process, they
must submit a new a Form I-600A or Form I-600 combination filing
(referred to in this preamble as a ``suitability application'') with an
updated home study. If the prospective adoptive parent already filed a
Form I-600 based on the approval of the prior Form I-600A, they must
also file a new Form I-600. They must pay a new application or petition
fee unless their suitability application is still pending. This is
consistent with longstanding practices, as reflected in prior versions
of the Form I-600A and Form I-600 instructions, which has required that
prospective adoptive parents file a new suitability application with an
updated home study if their marital status changes, rather than relying
on the previously filed suitability application, regardless of whether
the suitability application is pending or approved. With the addition
in this proposed rule of the Supplement 3 for the orphan process, DHS
proposes to codify this longstanding practice at 8 CFR 204.3(h)(14),
consistent with the Hague process at 8 CFR 204.312(e)(2).
Table 20 and the following sections summarize the current process
and the proposed changes.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP04JA23.058

[[Page 506]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.059

BILLING CODE 9111-97-C
a. Suitability and Eligibility Extensions
---------------------------------------------------------------------------

\303\ See section VIII.N.4.e for limitations in Hague Adoption
Convention transition cases and countries.
---------------------------------------------------------------------------

Currently, prospective adoptive parents pursuing an intercountry
adoption from non-Hague countries may request a no-fee initial
extension of their Form I-600A approval.\304\ Requests are submitted in
writing and second or subsequent requests to extend their approval are
not allowed. See 8 CFR 103.7(b)(1)(i)(Z)(3) (2020) (Oct. 1, 2020). DHS
proposes that prospective adoptive parents be allowed to request more
than one extension of their Form I-600A approval, if necessary, by
filing the proposed Form I-600A/I-600 Supplement 3. The first request
would be free under this proposal. Second or subsequent requests would
require the proposed fee of $455. See proposed 8 CFR 106.2(a)(31).
---------------------------------------------------------------------------

\304\ The Form I-600A approval notice reflects the validity
period of the prospective adoptive parents' suitability and
eligibility determination.
---------------------------------------------------------------------------

Currently, if an applicant needs to extend their Form I-600A
approval, they may file a written request for an extension no more than
90 days before their Form I-600A suitability approval expires, but on
or before its expiration date. DHS now proposes that an applicant must
file a Supplement 3 to seek an extension before their Form I-600A
suitability approval expires. A Supplement 3 seeking an extension
cannot be filed more than 90 days before the Form I-600A suitability
approval expires and must be filed before the approval expires if they
need to extend their validity period. A Supplement 3 may be denied if
filed sooner.\305\ This

[[Page 507]]

codifies the administrative efficiencies created by ensuring applicants
timely file their extensions and mirrors the existing time frames for
requesting an extension. In addition, this further aligns the processes
for requesting extensions for adoptions from countries that are not
party to the Hague Adoption Convention (Hague) with the processes for
countries that are a party to that Convention. See proposed 8 CFR
204.3(h)(3)(ii).
---------------------------------------------------------------------------

\305\ This is current practice that DHS is codifying with the
creation of Supplement 3 and a fee. See USCIS Policy Manual Volume
5, Adoptions, Part B, Adoptive Parent Suitability Determinations
Chapter 5, Action on Pending or Approved Suitability Determinations
[5 USCIS-PM B.5] available at https://www.uscis.gov/policy-manual/volume-5-part-b-chapter-5.
---------------------------------------------------------------------------

DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1, 2020). This
regulation that provides for DHS to extend suitability approvals
without the prospective adoptive parents requesting one in certain
scenarios would no longer be necessary because applicants would have a
form (Supplement 3) they can file to request unlimited extension
requests for non-Hague cases. Currently, DHS does not have a form for
applicants to request extensions for non-Hague cases, and only allows
one written extension request. In association with this rule, DHS
proposes to create a form that prospective adoptive parents can use to
file unlimited extension requests for non-Hague cases. In addition,
this proposed change also aligns the non-Hague adoptions regulations
with the Hague Adoption Convention regulations, which do not contain a
parallel provision that provides DHS authority to extend suitability
approvals in the event of such emergency because prospective adoptive
parents can file a form to request an extension and can do so an
unlimited number of times. Finally, DHS has an obligation to ensure
applicants remain suitable for intercountry adoption and must update
our suitability determination before extending approvals. For this
reason, DHS proposes to remove 8 CFR 204.3(h)(3)(ii) (Oct. 1,
2020).\306\
---------------------------------------------------------------------------

\306\ This provision was changed by the 2020 fee rule, to remove
language specific to SARS, and to replace with more general language
about a public health or other emergency. 85 FR 46921; 8 CFR
204.3(h)(3)(ii) (Oct. 2, 2020). DHS now proposes to remove that
provision altogether for the reasons stated here.
---------------------------------------------------------------------------

b. New Approval Notices
Currently, prospective adoptive parents using the non-Hague process
may request a new approval notice based on a significant change in
circumstances at no cost. See 8 CFR 103.7(b)(1)(i)(Z) (Oct. 1, 2020).
DHS proposes that prospective adoptive parents must file the proposed
Form I-600A/I-600 Supplement 3, and an updated home study, to notify
USCIS of a significant change and request a new approval notice. See
proposed 8 CFR 106.2(a)(31). The prospective adoptive parent must pay
the proposed fee of $455 unless they are also filing either a first-
time request for an extension or first-time change of country on the
same Supplement 3.
c. Change of Country
Currently, prospective adoptive parents may change the proposed
country of adoption once without fee. They may make subsequent country
changes by filing Form I-824, Application for Action on an Approved
Application or Petition, with fee. See 8 CFR 103.7(b)(1)(i)(OO) (Oct.
1, 2020). DHS proposes that prospective adoptive parents be allowed to
change the proposed country of adoption by filing the proposed Form I-
600A/I-600 Supplement 3. The first request to change countries would
remain free. Second or subsequent requests would require the proposed
fee of $455. Id.
d. Duplicate Approval Notices
Currently, prospective adoptive parents may request a duplicate
approval notice by filing Form I-824, Application for Action on an
Approved Application or Petition, with its $465 fee. DHS proposes that
prospective adoptive parents make duplicate approval notice requests by
filing the proposed Form I-600A/I-600 Supplement 3, with the proposed
fee of $455. See proposed 8 CFR 106.2(a)(31).
e. Hague Adoption Convention Transition Cases
DHS proposes to clarify the processes for requesting an extension
of the Form I-600A approval and other actions on an approved Form I-
600A or Form I-600 as they pertain to adoptions from countries that
newly become a party to the Hague Adoption Convention. When the Hague
Adoption Convention enters into force for a country, cases that meet
certain criteria are generally permitted by the new Convention country
to proceed as ``transition cases'' under the non-Hague Adoption
Convention process (Form I-600A and Form I-600 process). Provided that
the new Convention country agrees with the transition criteria, USCIS
will generally consider a case to be a transition case if, before the
date the Convention entered into force for the country, the prospective
adoptive parents: (1) filed a Form I-600A that designated the
transition country as the intended country of adoption or did not
designate a specific country and filed the Form I-600 while the Form I-
600A approval was still valid; (2) filed a Form I-600 on behalf of a
beneficiary from the transition country; or (3) completed the adoption
of a child from the transition country. If the case does not qualify as
a transition case, the prospective adoptive parents will generally need
to follow the Hague Adoption Convention process with the filing of Form
I-800A and Form I-800. With the addition of the new Form I-600A/I-600
Supplement 3, DHS proposes to codify certain limitations on when the
Supplement 3 can be used in the context of transition cases.
i. Suitability and Eligibility Extensions
If a case qualifies as a transition case based on the filing of
Form I-600A before the entry into force date, to continue as a
transition case, the prospective adoptive parents must file the Form I-
600 petition while the Form I-600A approval remains valid. Currently,
prospective adoptive parents are permitted to request a one-time, no-
fee extension of their Form I-600A approval to remain a transition
case. As discussed in section a.) above, DHS proposes that prospective
adoptive parents may request more than one extension of their Form I-
600A approval outside of the transition context. DHS proposes that
prospective adoptive parents may only be permitted to request a one-
time extension of their Form I-600A approval as a qualified transition
case. See proposed 8 CFR 106.2(a)(31). Generally, transition countries
have requested that DHS limit the ability of transition cases to
continue indefinitely to limit the confusion that having two
simultaneously running processes causes to its administrative bodies
and judicial systems. This will provide prospective adoptive parents
who have taken certain steps to begin the intercountry adoption process
with a country before the Convention entered into force additional time
to complete the adoption process under the non-Hague process, but
reasonably limits the ability to indefinitely extend the validity
period of the Form I-600A approval and the processing of transition
cases under the non-Hague process.
ii. Change of Country
The transition criteria were generally designed to permit
prospective adoptive parents who had taken certain steps to begin the
intercountry adoption process with a country before the Convention
entered into force to be able to continue under the non-Hague process,
rather than requiring them to begin again

[[Page 508]]

under the Hague process, which has different processing requirements.
If the prospective adoptive parents already designated a country of
intended adoption other than the transition country on their Form I-
600A or previously changed countries to a non-transition country, they
generally would not fall into the category of families the transition
criteria were intended to reach because the designation is an
indication that they have begun the intercountry adoption process with
the designated country and not with the transition country. Therefore,
in the transition context, prospective adoptive parents who designated
a non-transition country on their Form I-600A or previously changed
countries to a non-transition country generally have not been permitted
to change their Form I-600A approval to a transition country for
purposes of being considered a transition case. DHS proposes to codify
this limitation in this rule. See proposed 8 CFR 106.2(a)(31).
iii. Request To Increase the Number of Children Approved To Adopt
Outside of the transition context, prospective adoptive parents are
generally permitted to request an updated Form I-600A approval notice
to increase the number of children they are approved to adopt. In the
transition context, however, prospective adoptive parents with
transition cases generally have not been permitted to request an
increase in the number of children they are approved to adopt from a
transition country.\307\ However, unless prohibited by the new
Convention country, DHS will permit prospective adoptive parents to
request an updated Form I-600A approval notice to increase the number
of children they are approved to adopt as a transition case only in
order to pursue the adoption of a birth sibling, provided the birth
sibling(s) is (are) identified and the Form I-600 petition is filed
before the Form I-600A approval expires. See proposed 8 CFR
106.2(a)(31). This approach is consistent with the special treatment
afforded in the INA to ``natural siblings,'' which allows a Form I-600
or Form I-800 petition to be filed for a child up to age 18, rather
than age 16, only if the beneficiary is the ``natural sibling'' of
another foreign-born child who has immigrated (or will immigrate) based
on adoption by the same adoptive parents. INA sec. 101(b)(1)(F)(ii) and
(G)(iii); 8 U.S.C. 1101(b)(1)(F)(ii) and (G)(iii). While the INA uses
the term ``natural sibling,'' DHS generally uses the term ``birth
siblings'' synonymously, which includes half-siblings but does not
include adoptive siblings.
---------------------------------------------------------------------------

\307\ See USCIS, ``Transition Cases'', available at https://www.uscis.gov/adoption/immigration-through-adoption/transition-cases
(last viewed Jun. 21, 2022).
---------------------------------------------------------------------------

5. Form I-800A, Supplement 3, Request for Action on Approved Form I-
800A
DHS also proposes a fee of $455 at 8 CFR 106.2 and revises and
republishes a clarification to 8 CFR 204.312 to align with the current
process for adjudicating Form I-800A Supplement 3. Currently,
prospective adoptive parents may request a first extension of the Form
I-800A approval, and a first-time change in the proposed country of
adoption, by filing Form I-800A Supplement 3 without a fee. Second or
subsequent requests for an extension, change of country, or duplicate
approval notice can currently be made by filing Form I-800A Supplement
3 with a fee. Additionally, prospective adoptive parents can currently
request a new approval notice based on a significant change and updated
home study by filing Form I-800A Supplement 3. A request for a new
approval notice must be submitted with a fee unless the prospective
adoptive parents are also filing a first-time request for either an
extension or change of country on the same Supplement 3. When DHS
implemented the Hague Adoption Convention, as a matter of operational
efficiency USCIS decided to accept Form I-800A Supplement 3 extension
requests regardless of whether the Form I-800 petition was already
filed, rather than requiring prospective adoptive parents to file a new
Form I-800A to begin the process anew. That procedure generally
shortens the subsequent suitability and eligibility adjudication
process for prospective adoptive parents seeking an extension of their
Form I-800A approval, as Supplement 3 adjudications are generally
prioritized over new Form I-800A filings, allowing for a new decision
on the prospective adoptive parents' suitability and eligibility to
occur more quickly. Therefore, DHS proposes to republish 8 CFR
204.312(e)(3)(i) to permit the filing of Form I-800A Supplement 3
regardless of whether Form I-800 has been filed.
DHS proposes to revise 8 CFR 204.312(e)(3)(ii) to clarify the
evidentiary requirements for updates due to significant changes. The
Supplement 3 can be filed for an extension request, a change of
country, a duplicate approval notice, or an update due to a significant
change. The evidentiary requirements are the same regardless of which
type of request the applicant makes. However, the current regulation
only describes the evidence required for a Supplement 3 for an
extension request or a change of country. The current regulations do
not include updates when listing evidentiary requirements for
Supplement 3. This proposed clarification mirrors current practices and
form instructions. See proposed 8 CFR 204.312(e)(3)(ii).
DHS proposes to remove the fee language from 8 CFR
204.312(e)(3)(i), including amending paragraph (e)(3)(i)(A) and
striking paragraphs (e)(3)(i)(C) and (D), because this language is
unnecessarily redundant with the fees in 8 CFR 106.2.

O. Immigrant Investors

1. Immediate Effects of the EB-5 Reform and Integrity Act of 2022
DHS proposes changes to various fees for regional centers and
related immigration benefit requests related to Employment-Based
Immigrant Visa, Fifth Preference (EB-5). As explained in section III.F.
above, on March 15, 2022, the President signed the EB-5 Reform and
Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act,
2022 (Public Law 117-103). The EB-5 Reform and Integrity Act of 2022
repealed the prior authorizing statute for the EB-5 ``regional center
program'' and codified a substantially reformed regional center program
in the INA, effective 60 days after enactment on May 14, 2022. The EB-5
Reform and Integrity Act of 2022 has no immediate impact on the
staffing levels of the USCIS Immigrant Investor Program Office.
Nevertheless, and despite the changes in the law and program, DHS has
proposed fees in this rule based on the currently projected staffing
needs to meet the adjudicative and administrative burden of the
Immigrant Investor Program Office pending the fee study required by
section 106(a) of the EB-5 Reform and Integrity Act of 2022.
2. Background of the EB-5 Program
Congress created the EB-5 program in 1990 to stimulate the U.S.
economy through job creation and capital investment by immigrant
investors. The EB-5 regional center program was later added in 1992 by
the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1993. Public Law 102-395, sec.
610, 106 Stat. 1828 (Oct. 6, 1992). As amended by the EB-5 Reform and
Integrity Act of 2022, the EB-5 program makes approximately 10,000
visas available annually to foreign nationals (and their dependents)
who invest at least $1,050,000 or a

[[Page 509]]

discounted amount of $800,000 if the investment is in a targeted
employment area (TEA) (which includes certain rural areas and areas of
high unemployment) or infrastructure project in a U.S. business that
will create at least 10 full-time jobs in the United States for
qualifying employees. See INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8
U.S.C. 11538 U.S.C. 1153. Investors may satisfy up to 90 percent of the
job creation requirements with jobs that are estimated to be created
indirectly through qualifying investments within a commercial
enterprise associated with a regional center approved by USCIS for
participation in the regional center program. INA sec. 203(b)(5), 8
U.S.C. 1153(b)(5). In FY 2013, USCIS created the Immigration Investor
Program Office (IPO) in Washington, DC, to handle EB-5 matters, hiring
staff with expertise in economics, law, business, finance, securities,
and banking to enhance consistency, timeliness, and integrity within
the program.
USCIS is committed to strengthening the integrity and improving the
overall administration of the EB-5 program. There is perennial and
increasing media attention around the EB-5 Program, largely created
around the exploitation of the program by abusive actors.\308\ Since
the FY 2016/2017 fee rule, IPO added staff positions to focus both on
managing the program and identifying fraud, national security, public
safety, and non-compliance concerns within the program. For example,
IPO hired auditors to complete regional center compliance reviews
associated with the review of the annual certification filings. See INA
section 203(b)(5)(G), 8 U.S.C. 1153(b)(5)(G). On March 20, 2017, USCIS
instituted EB-5 regional center compliance reviews to enhance the EB-5
program integrity and verify information in regional center
applications and annual certifications. USCIS designed this program to
verify the information provided by designated regional centers and
verify compliance with applicable laws and authorities to ensure
continued eligibility for the regional center designation. These
compliance reviews are full-file reviews and include contact via
written correspondence, telephone, interviews, and onsite assessments
conducted by IPO auditors.
---------------------------------------------------------------------------

\308\ Michelle Hackman & Konrad Putzier, ``Cash-for-Visa Program
Looks to Be in Jeopardy,'' The Wall Street Journal (June 15, 2021),
available at https://www.wsj.com/articles/cash-for-visa-program-looks-to-be-in-jeopardy-11623758401; see also U.S. Citizenship and
Immigr. Servs., U.S. Dep't of Homeland Security, ``Hearing on
``Citizenship for Sale: Oversight of the EB-5 Investor Visa
Program'' before the Senate Committee on the Judiciary on June 19,
2018'' (last updated June 19, 2018), available at https://www.uscis.gov/tools/resources-for-congress/testimonies/hearing-on-citizenship-for-sale-oversight-of-the-eb-5-investor-visa-program-before-the-senate; U.S. Dep't of Justice, Office of Public Affairs,
``Chinese National Pleads Guilty to Illegal Exports to Northwest
Polytechnical University'' (Apr. 28, 2021), available at https://www.justice.gov/opa/pr/chinese-national-pleads-guilty-illegal-exports-northwestern-polytechnical-university; U.S. Dep't of
Justice, U.S. Attorney's Office, Eastern District of Louisiana,
``Ex-White House Military Aide and Maryland Businessman Found Guilty
for Operating Fraudulent EB-5 Visa Scheme (Sept. 6, 2019), available
at https://www.justice.gov/usao-edla/pr/ex-white-house-military-aide-and-maryland-businessman-found-guilty-operating-fraudulent;
U.S. Dep't of Justice, U.S. Attorney's Office, West District of
Wisconsin, ``Developer Sentenced to 4 Years in Prison for Defrauding
Investors seeking Permanent Residency under Federal Immigration
Program (Aug. 4, 2017), available at https://www.justice.gov/usao-wdwa/pr/developer-sentenced-4-years-prison-defrauding-investors-seeking-permanent-residency.
---------------------------------------------------------------------------

3. Proposed EB-5 Program Fees
The proposed fee for Forms I-526, Immigrant Petition by Alien
Entrepreneur, and Form I-526E, Immigrant Petition by Regional Center
Investor, is $11,160, a $7,485 or 204 percent increase from the current
$3,675 fee. See 8 CFR 103.7(b)(1)(i)(W) (Oct. 1, 2020); proposed 8 CFR
106.2(a)(24). The proposed fee for Form I-829, Petition by Investor to
Remove Conditions on Permanent Resident Status, is $9,525, a $5,775 or
154 percent increase from the current $3,750 fee. See 8 CFR
103.7(b)(1)(i)(PP) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(51). The
proposed fee for Form I-956, Application for Regional Center
Designation, is $47,695, a $29,900 or 168-percent increase from the
$17,795 fee for Form I-924, Application for Regional Center Designation
under the Immigrant Investor Program. See 8 CFR 103.7(b)(1)(i)(WW)
(Oct. 1, 2020); proposed 8 CFR 106.2(a)(64). DHS also proposes a
$47,695 fee for Form I-956F, Application for Approval of Investment in
a Commercial Enterprise, because the information it collects and the
benefit that results was previously an optional submission that was
adjudicated on Form I-924, when included. Section 103(b)(1)(F) of the
EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated
Appropriations Act, 2022 (Pub. L. 117-103) now requires a regional
center, once designated with an approved Form I-956, to submit an
application for approval of an investment in a commercial enterprise
(Form I-956F). The proposed fee for Form I-956G, Regional Center Annual
Statement, is $4,470, a $1,435 or 47 percent increase from the $3,035
fee for Form I-924A, Annual Certification of Regional Center. See 8 CFR
103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(66). The EB-
5 program encompasses Forms I-526, I-526E, I-829, I-956, I-965F, and I-
956G.\309\
---------------------------------------------------------------------------

\309\ DHS has also created Forms I-956H, Bona Fides of Persons
Involved with Regional Center Program, and I-956K Registration for
Direct and Third-Party Promoters, for the new EB-5 program. DHS
proposes no fee for those forms in this rule.
---------------------------------------------------------------------------

In the FY 2016/2017 fee rule, USCIS planned for 204 positions in
IPO. In the FY 2022/2023 fee review, USCIS estimates an annual average
requirement of 245 positions in IPO. As discussed earlier, projected
volumes and completion rates are two of the main drivers in the fee
review.\310\ Staffing requirements and costs change as volume or
completion rate estimates change. Generally, EB-5 volume estimates
decreased since the FY 2016/2017 fee rule while completion rate
estimates increased.\311\ For example, the FY 2022/2023 workload volume
estimate for Forms I-526 and I-526E decreased by 10,773 or -73 percent
compared to Form I-526 in FY 2016/2017. Estimated workload for Form I-
924 decreased by 338 or -85 percent. Overall, EB-5 actual receipts
declined consistently year-over-year from FY 2016 to FY 2020. See Table
21, EB-5 Receipts from FY 2016 to FY 2020. However, completion rates
increased. For example, the estimated completion rate for Form I-526
was 6.5 hours in the FY 2016/2017 fee rule. See 81 FR 26925. In the FY
2022/2023 fee review, USCIS estimates that the completion rate for
Forms I-526 and I-526E is 20.69 hours, a 14.19 hour or 218 percent
increase. The estimated completion rate for Form I-924 was 40 hours in
the current fee structure. Id. In the FY 2022/2023 fee review, USCIS is
using the methodology for Forms I-924 and I-924A and applying it to
Forms I-956 and I-956G respectively. USCIS estimates that the
completion rate for Form I-956 (formerly Form I-924) is 108.50 hours, a
68.50 hour or 171 percent increase. The work associated with Form I-956
adjudications includes reaffirmations and terminations; therefore, the
time requirements associated with these subsequent actions is factored
into the overall completion rate for Form I-956. The number of approved
regional centers decreased from 2016 to 2020 by over 200, significantly
increasing the number of hours spent on the terminations of those
regional centers. Increased work associated with terminations
contributed to the overall increase in the completion rates.
---------------------------------------------------------------------------

\310\ See section V.B, Methodology, earlier in this preamble for
workload volumes and completion rates in the FY 2022/2023 fee
review.
\311\ Id.

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

[[Page 510]]

IPO staffing did not decrease from the levels estimated in the FY
2016/2017 fee rule despite lower workload volumes because the amount of
work required per form increased (in other words, completion rates
increased) and USCIS increased the number of other positions to
strengthen the program integrity, resulting in increased staffing
overall. In some cases, there was adjudicative work that was required
even if there was no petition and associated filing fee filed. In
addition to reviewing Form I-956G (formerly Form I-924A), USCIS also
incurs costs associated with regional centers that fail to file Form I-
956G. USCIS will sanction or terminate the designation of a regional
center in the program if a regional center fails to submit information
annually. See INA section 203(b)(5)(G), 8 U.S.C. 1153(b)(5)(G).
Therefore, USCIS must take adjudicative action on regional centers that
fail to file this form, and there is a cost involved even if no fee is
filed to cover the cost.
The reduced EB-5 workload volume contributes to significantly
higher fee-paying unit costs in the ABC model because there are fewer
paying customers from whom USCIS recovers the cost of processing the
EB-5 workloads. As discussed in earlier in this preamble, DHS bases
most proposed fees on fee-paying unit costs from the ABC model. See
section V.B.3., Assessing Proposed fees. In a separate rulemaking, DHS
may reevaluate EB-5 proposed fees to meet the timely processing goals
of Public Law 117-103. See Public Law 117-103 at div. BB, sec. 106.
[GRAPHIC] [TIFF OMITTED] TP04JA23.061

The proposed fees represent consistent application of the
methodology discussed earlier in this preamble. In each case, the EB-5
proposed fees are based on the ABC model outputs. As explained earlier
in the preamble, the fees for benefit requests with higher fee-paying
volume or model outputs, such as the EB-5 forms, are set higher than
the model outputs via the process called cost reallocation. See section
V.B.3. Consistent with the practice and the treatment of similar forms
in this proposed rule, the proposed fees for the EB-5 forms exceed the
estimated full cost of adjudication because, under the model, the fees
include amounts needed to recover the costs associated with processing
other workloads where fees are insufficient to recover full cost. Id.
DHS may reevaluate EB-5 proposed fees to meet the additional fee
guidelines of EB-5 Reform and Integrity Act of 2022 sec. 106(c). Under
the ability-to-pay principle, those who are more capable of bearing the
burden of fees should pay more for a service than those with less
ability to pay. The requirements of immigrant investor program indicate
that immigrant investors and regional centers have the ability-to-pay
more than most USCIS customers. In addition, compared to the amount of
capital required and the required investment levels for an immigrant
investor, the amount of the USCIS fees are an insignificant amount.
Thus, DHS proposes that the fee amounts indicated by the ABC full cost
recovery model for the four immigrant investor forms are not capped or
decreased. DHS believes that immigrant investors and regional centers
are able to pay the fees and the requirements for financial wherewithal
in the program are inconsistent with shifting its costs to other
requests and requiring others to subsidize its share of the costs of
USCIS. While the proposed EB-5 fees are some of the highest on the fee
schedule, the revenue from them is still a small part of the total
revenue forecast because the volumes are low. See Table 22. The EB-5
average annual revenue forecast is approximately $80.7 million for the
FY 2022/2023 period. As such, the EB-5 revenue forecast is only
approximately 2 percent of the total average annual FY 2022/2023
revenue forecast with the proposed fees.

[[Page 511]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.062

P. Genealogy and Records

1. Genealogy Search and Records Requests
DHS revised the regulations governing genealogical research
requests in the 2020 fee rule. See 85 FR 46915. The changes were
intended to allow USCIS to send pre-existing digital records as part of
a response to requestors who have filed Form G-1041, Genealogy Index
Search Request, and otherwise help USCIS improve genealogy processes.
DHS also proposed a fee for a Genealogy Index Search Request, Form G-
1041, of $240, and for a Genealogy Records Request, Form G-1041A, of
$385. 84 FR 62362. Numerous commenters generally opposed increasing
fees for genealogy search and records requests for various reasons. 85
FR 46834. For the 2020 final rule, USCIS refined the methodology used
to estimate genealogy program costs and DHS established a fee for Form
G-1041 when filed online as $160 and $170 when filed on paper. DHS
established a fee for Form G-1041A when filed online as $255 and $265
when filed by paper. These fees were enjoined and not implemented.
The FY 2022/2023 IEFA fee review has determined that USCIS needs
additional funds for its Genealogy Search and Records Requests program.
Therefore, DHS again proposes changes to the genealogy search and
request program. These proposals will allow USCIS to send pre-existing
digital records as part of a response to requestors who have filed Form
G-1041, Genealogy Index Search Request, recover the costs of the
genealogy program, and may otherwise help USCIS improve genealogy
processes.
Congress provided specific authority for establishing USCIS
genealogy program fees. See INA sec. 286(t), 8 U.S.C. 1356(t). The
statute requires that genealogy program fees be deposited into the IEFA
and provides that the fees for such research and information services
may be set at a level that will ensure the recovery of the full costs
of providing all such services. Id. USCIS does not receive
appropriations for genealogy workloads, and genealogy revenue does not
augment Government tax revenue. USCIS only receives appropriations for
E-Verify, the Citizenship and Integration Grant Program, and other
specific purposes, as explained in section III.B. of this preamble.
The USCIS genealogy program processes requests for historical
records of deceased individuals. See Establishment of a Genealogy
Program, 73 FR 28026 (May 15, 2008) (final rule). Before creating a
genealogy program, USCIS processed the requests as FOIA request
workload, which resulted in delays. See Establishment of a Genealogy
Program, 71 FR 20357 (Apr. 20, 2006) (proposed rule). Requestors use
the USCIS website \312\ or Form G-1041, Genealogy Index Search Request,
to request an index search of USCIS historical records. See 8 CFR
103.7(b)(1)(i)(E) (Oct. 1, 2020). USCIS informs the requestor whether
any records are available by mailing a response letter. Requestors use
the Form G-1041A, Genealogy Records Request, to obtain copies of USCIS
historical records, if they exist. See 8 CFR 103.7(b)(1)(i)(F) (Oct. 1,
2020).
---------------------------------------------------------------------------

\312\ USCIS, ``Genealogy,'' available at https://www.uscis.gov/records/genealogy.
---------------------------------------------------------------------------

In the FY 2016/2017 fee rule, USCIS adopted the first change to the
genealogy search and records requests fees since they had been
established. See 81 FR 73304. DHS set both genealogy search and records
requests fees at $65. Id. At the time, genealogy fees were insufficient
to cover the full costs of the genealogy program. DHS increased the fee
to meet the estimated cost of the program and permit USCIS to respond
to requests for such historical records and materials.
After more than ten years of operating the genealogy program, DHS
proposes to make several changes to the process. Ultimately, DHS
expects these changes may allow USCIS to provide genealogy search
results and historic records more quickly when pre-existing digital
records exist.
First, DHS proposes to revise genealogy regulations to encourage
requestors to submit the electronic versions of Form G-1041, Genealogy
Index Search Request, and Form G-1041A, Genealogy Records Request,
through the online portal at https://www.uscis.gov/records/genealogy.
See proposed 8 CFR 103.40(b). Electronic versions of the requests
reduce the administrative burden on USCIS by eliminating the need to
manually enter requestor data into its systems. Requestors that cannot
submit the forms electronically may still submit paper copies of both
forms with the required filing fees.
Second, DHS proposes to change the search request process so that
USCIS may provide requestors with pre-existing digital records, if they
exist, in response to a Form G-1041, Genealogy Index Search Request.
When requestors submit Form G-1041, Genealogy Index Search Request, on
paper or electronically, USCIS searches for available records. If no
record is found,

[[Page 512]]

then USCIS notifies the requestor by mail or email. If USCIS identifies
available records, then USCIS provides details on the available
records, but does not provide the copies of the actual records. Under
current regulations, a requestor must file Form G-1041A, Genealogy
Records Request, with a fee for each file requested, before USCIS
provides any records that it found as a result of the search request.
DHS proposes to provide the requestor with those pre-existing digital
records, if they exist, via email in response to the initial search
request. See proposed 8 CFR 103.40(f). If only paper copies of the
records exist, or if the requestor wants a physical copy of the
digitized record, then the requestor must follow the current process
and file Form G-1041A. Consistent with current practices, requestors
must still pay the Form G-1041A request fee to request a paper record.
In short, the proposal may allow some customers to file a single search
request with a single fee and still receive the genealogy information
that they requested. USCIS forecasts that records requests may be
approximately 30 percent of index search requests. See section V.B.1.
of this preamble for immigration benefit request volumes. Meaning, for
approximately 70 percent of index searches, USCIS may provide
electronic copies of digital records, USCIS may not identify any
records, or customers may not follow-up with a records request for
hardcopies.
Lastly, DHS proposes to change the genealogy fees to reflect these
operational changes and recover the full cost of providing genealogical
services. See 8 CFR 103.7(b)(1)(i)(E) and (F) (Oct. 1, 2020); proposed
8 CFR 106.2(c)(1) and (2). USCIS estimated the workload volume based on
these proposed changes and historic information. USCIS must estimate
the costs of the genealogy program because it does not have a discrete
genealogy program operating budget. Maintaining a separate genealogy
program budget would be administratively burdensome because it is such
a small portion of USCIS staffing, as explained later in this section.
The proposed fees are based on results from the same ABC model used
to calculate other immigration benefit request fees proposed in this
NPRM. However, the proposed increase reflects changes in USCIS'
methodology for estimating the costs of the genealogy program to
improve the accuracy of its estimates. In the FY 2016/2017 fee rule,
DHS estimated the costs of the genealogy program indirectly using
projected volumes and other information. See 81 FR 26919. It did not
separate genealogy from the other costs related to the division that
handles genealogy, FOIA, and similar USCIS workloads. Id. This
methodology underestimated the total cost to USCIS of processing
genealogy requests by not fully recognizing costs associated with the
staff required to process genealogical requests. Therefore, other fees
have been funding a portion of the costs of the genealogy program, and
DHS proposes to correct that.
In the 2020 fee rule, USCIS created a new activity for this
workload, called Research Genealogy, in the ABC model.\313\ Previous
fee reviews captured this work as part of the Records Management
activity. The same office that researches genealogy requests, the
National Records Center (NRC), also performs other functions, such as
FOIA operations, retrieving, storing, and moving files. To improve
efficiency and decrease wait times for USCIS Genealogy Program
customers, processing of USCIS genealogy requests transitioned from
Washington, DC, to USCIS NRC in Lee's Summit, Missouri. This change
enabled USCIS to revise its cost estimation methodology to incorporate
a proportional share of the NRC's operating costs based on the staff
devoted to the genealogy program. USCIS estimates that there are
approximately 6 genealogy positions out of the total 24,266 positions
in the fee review.
---------------------------------------------------------------------------

\313\ The current FY 2022/2023 fee review continues to use this
new activity. See the supporting documentation accompanying this
proposed rule for more information on the activities in the ABC
model.
---------------------------------------------------------------------------

USCIS used historical information to calculate completion rates for
genealogy search and records requests. The completion rates allow for
separate search and record request fees based on the average time to
complete a request. As such, the proposed fees each represent the
average staff time required to complete the request, similar to most
other fees proposed in this rule. The completion rates in the 2020 fee
rule documentation did not reflect the workload transfer. Updated data
that reflects the change were used for this fee review and shows that
completion rates decreased.
In addition to genealogy staffing, USCIS also incurs overhead costs
associated with storing and managing genealogy records, including the
cost of facilities and information technology. The projected costs
included a portion of these overhead costs. The paper filing fee
includes a portion of lockbox costs for genealogy requests filed on
paper. Requests filed online do not include lockbox costs. USCIS
estimates that over 90 percent of genealogy customers may file online.
The proposed fees for Form G-1041 are $100 for online and $120 for
paper filing. The proposed fees for Form G-1041A are $240 for online
and $260 for paper filing. See Table 23 for a summary of current and
proposed genealogy fees. As explained earlier in this section, the
proposal may allow some customers to file a single search request with
a single fee and still receive the genealogy information that they
requested. The proposal to include pre-existing digital records, if
they exist, via email in response to the initial search request would
also be more efficient than the current process, as described earlier
in this section. USCIS estimates that genealogy fees may provide $1.9
million in revenue or approximately 0.04 percent of the USCIS total
$5,163.7 million in revenue from the proposed fee structure.

[[Page 513]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.063

2. Request for a Certificate of Non-Existence
USCIS allows individuals to request a Certificate of Non-Existence
to document that USCIS has no records indicating that an individual
became a naturalized citizen of the United States. See 8 CFR 103.7(f)
(Oct. 1, 2020) (stating, ``The Director of USCIS, or such officials as
he or she may designate, may certify records when authorized under 5
U.S.C. 552 or any other law to provide such records.''). This service
is often used by individuals gathering genealogical records to claim
the citizenship of another nation. Historically, USCIS has operated the
Certificate of Non-Existence request process informally and at no cost
to individuals requesting a Certificate. USCIS has now proposed to
create USCIS Form G-1566, Request for a Certificate of Non-Existence to
enable customers to request the Certificate. A Request for a
Certificate of Non-Existence is mailed to and processed at the NRC.
USCIS is currently seeking public comment and OMB approval for creation
of Form G-1566, Request for a Certificate of Non-Existence, in
compliance with the requirements of the PRA. See 86 FR 68680 (December
3, 2021) (requesting public comments on the information collection
instrument for 30 days).\314\
---------------------------------------------------------------------------

\314\ See Notice by USCIS, Agency Information Collection
Activities; New Collection: Request for a Certificate of Non-
Existence, available at https://www.federalregister.gov/documents/2021/12/03/2021-26245/agency-information-collection-activities-new-collection-request-for-a-certificate-of-non-existence.
---------------------------------------------------------------------------

DHS proposes a fee of $330 for a request for a Certificate of Non-
Existence. DHS calculated the fee to recover the estimated full cost of
processing these requests. If finalized, the fee will be established in
this rule and will be required for submission of Form G-1566 if it is
approved before this rule takes effect. If the form is not approved
before this rule is to take effect, the fee will be due with the
submission of a non-form request until the form is prescribed as
provided in 8 CFR 299.1. DHS proposes this fee consistent with the full
cost recovery model used for this rule to generate revenue to mitigate
the need for other fee payers to fund the costs of providing
certificates.
The proposed fee for a request for a Certificate of Non-Existence
is based on the same ABC model used to calculate the other proposed
fees. USCIS created a new activity for this workload, called Certify
Nonexistence, in the ABC model. Similar to the genealogy fee, previous
fee reviews captured this work as part of the Records Management
activity. See the supporting documentation accompanying this proposed
rule for more information on the activities in the ABC model.
Additionally, USCIS used subject matter expert input to determine a
completion rate for reviewing and responding to requests for a
Certificate of Non-Existence. Therefore, the proposed fee represents
the average staff time required to complete a request, similar to most
other fees proposed in this rule. The fee DHS proposes does not reflect
cost reallocation from other non-paying workloads to processing
requests for a Certificate of Non-Existence, because DHS determined
that including such costs would disproportionately affect the small
number of requestors.

Q. Fees Shared by CBP and USCIS

CBP shares the workload with USCIS in adjudicating the following
immigration benefit requests:
Form I-192, Application for Advance Permission to Enter as
a Nonimmigrant.
Form I-193, Application for Waiver of Passport and/or
Visa.
Form I-212, Application for Permission to Reapply for
Admission into the U.S. after Deportation or Removal.
Form I-824, Application for Action on an Approved
Application or Petition.
USCIS and CBP each keep the revenue for the applications that they
adjudicate. Tables 20 and 21 summarize CBP and USCIS information for
these shared workloads. Table 24 provides revenue information for both
DHS components. CBP provided revenue collections from FY 2014 to FY
2020 for these immigration benefit requests. Travel restrictions in FY
2020 likely lowered revenue collections. DHS believes that pre-pandemic
data is likely to be more representative of reasonable expectations for
FY 2022 and FY 2023 and so DHS decided to use FY 2019 amounts to
reflect costs and revenue before the pandemic. USCIS divided the

[[Page 514]]

revenue collections by the fee for each immigration benefit request to
derive the fee-paying volume for each immigration benefit request. CBP
did not provide total workload counts for these immigration benefit
requests. Table 24 summarizes the USCIS and CBP revenue collections,
current fees, and fee-paying actuals.
[GRAPHIC] [TIFF OMITTED] TP04JA23.064

DHS proposes to move to a single fee for each of these four
immigration benefit requests. The proposed fee is the same whether CBP
or USCIS adjudicates the application. To calculate the proposed fees
for these four forms, DHS combined the estimated cost and volume
information for these applications that both USCIS and CBP adjudicate.
DHS adds together the fee-paying receipt and cost data for both
components, as shown in Table 25, when calculating overall estimated
costs and projected receipts. USCIS calculated proposed fees using the
same methodology as other proposed fees and then added information from
CBP into the USCIS fee schedule. CBP estimated the total cost for Forms
I-192 and I-193 in FY 2019. As stated earlier, DHS used FY 2019 CBP
data because it is likely more representative of a typical year than
more recent data. CBP did not estimate the total cost of Forms I-212 or
I-824 in FY 2019. Based on CBP revenue collections in Table 24, fee-
paying receipts for Forms I-212 and I-824 appear to be very low. USCIS
incorporated the total costs and derived fee-paying volume for the
respective CBP workloads into the USCIS fee schedule and added the CBP
estimated costs to the USCIS estimated total cost from the ABC model.
USCIS added the CBP-derived fee-paying volume to the USCIS fee-paying
volume estimates. We divided the combined total cost by the combined
total fee-paying volumes for these immigration benefits. Table 25
details the estimated cost data, fee-paying receipts, fee-paying unit
cost, and proposed fees for combined USCIS and CBP workloads.

[[Page 515]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.065

The proposed fees represent single DHS fees for each of these
workloads by combining the estimated costs and fee-paying volumes of
USCIS and CBP. DHS believes that a single fee for each of these shared
workloads will reduce confusion for individuals interacting with CBP
and USCIS. DHS used the combined CBP and USCIS fee-paying unit cost to
calculate the proposed fees. DHS proposes to limit the fee increases
for Forms I-192 and I-193. See section V.B.3 for information on how DHS
assesses fees. The proposed fees for Forms I-212 and I-824 would
recover full cost. Under this proposal, CBP and USCIS will each
continue to keep the revenue that they collect for these fees.

R. Form I-881, Application for Suspension of Deportation or Special
Rule Cancellation of Removal (Pursuant to Section 203 of Public Law
105-100 (NACARA))

DHS proposes to adjust the fee for Form I-881, Application for
Suspension of Deportation or Special Rule Cancellation of Removal
(Pursuant to Section 203 of Public Law 105-100 (NACARA)). The IEFA fees
for this application have not changed since 2005. The proposed fee
remains less than USCIS' estimated costs associated with adjudicating
the application. Additionally, DHS proposes to combine the current
multiple fees into a single Form I-881 fee because we have no data that
supports limiting the amount charged to a family.
INS implemented two fees for this benefit request in 1999. See 63
FR 64895 (Nov. 24, 1998) (proposed rule) and 64 FR 27856 (May 21, 1999)
(interim final rule). The two IEFA fees were $215 for an individual and
$430 as a maximum per family. See 64 FR 27867-27868. EOIR collected a
separate $100 fee. Id. INS used ABC to determine the proposed IEFA
fees. See 63 FR 64900. The IEFA NACARA fees have only changed by
inflation since creation of the NACARA program. See 69 FR 20528 (Apr.
15, 2004) and 70 FR 56182 (Sept. 26, 2005). The current fees are as
follows:

1. $285 for individuals,
2. $570 maximum for families, and
3. $165 at EOIR, whether an individual or family.

In FY 2020, Form I-881 fees generated $107,640 in IEFA revenue.
Approximately 53 percent of applicants paid the $285 fee. See Table 26.
EOIR provided receipt information for FY 2016 to FY 2018. EOIR received
339 applications in FY 2016, 326 in FY 2017, and 277 in FY 2018. DHS
proposes no changes to the EOIR fee because it lacks the authority to
change DOJ fees.
[GRAPHIC] [TIFF OMITTED] TP04JA23.066

[[Page 516]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.067

In prior fee rules, DHS has not changed the Form I-881 fees. See 72
FR 29854, 75 FR 58964, and 75 FR 73312. DHS excluded this immigration
benefit request from previous fee rules, essentially treating it like
other temporary programs or policies such as TPS and DACA. See 81 FR
73312. DHS expects the population will be exhausted eventually due to
relevant eligibility requirements. Id.
DHS proposes a single $340 fee for any Form I-881 filed with USCIS.
See proposed 8 CFR 106.2(a)(54). DHS estimated the fee-paying unit cost
(model output) for Form I-881 is $2,382. USCIS forecasts an average of
385 annual Form I-881 receipts in the FY 2022/2023 biennial period.
Given the low volume and high model output, DHS proposes a fee that is
far less than the estimated cost to adjudicate the form. DHS believes
that the fee that the ABC model calculates for this form would be
overly burdensome and could result in an eligible applicant being
unable to file a request. Considering both its affordability and that
the estimated volume is so small, recovering full cost for this
workload would not significantly affect other fees. USCIS does not
track the different level of effort required to adjudicate Form I-881
applications filed by an individual compared to a family. However,
because DHS is proposing a fee that is only 14 percent of the relative
cost to USCIS to adjudicate the from, DHS is not providing a multiple
filing discount to applicants in the same family who file their Form I-
881 simultaneously.

S. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)

In section 402(g) of Div. O of the Consolidated Appropriations Act,
2016 (Pub. L.114-113) \315\ enacted December 18, 2015, Congress
required the submission of an additional fee of $4,000 for certain H-1B
petitions and $4,500 for certain L-1A and L-1B petitions. The language
in Public Law 114-113 is ambiguous and, as a result, DHS had to
determine whether the fee applied to all extension petitions by covered
employers, or just those for which the fraud fee was also charged
(extension of stay with change of employer). DHS interpreted the Public
Law 114-113 fee to apply only when the fraud fee, described in INA sec.
214(c)(12), 8 U.S.C. 1184(c)(12), is also required and issued guidance
accordingly. See 8 CFR 103.7(b)(1)(i)(III) and (JJJ) (Oct. 1, 2020).
However, in the 2020 fee rule, DHS revisited the issue and interpreted
Public Law 114-113 fee as applying to all extension of stay petitions
even when the fraud fee is not applicable. DHS still believes that the
language in the subject statute is ambiguous and could be interpreted
as provided in the 2020 fee rule. However, DHS is not including the 9-
11 Response and Biometric Entry-Exit Fees for H-1B and L-1 Nonimmigrant
Workers in this rulemaking. Thus, 8 CFR 106.2(c)(7) and (8) as codified
effective October 2, 2020, are proposed to be revised in this
rulemaking with the text that existed immediately before the 2020 fee
rule. See proposed 8 CFR 106.2(c)(8) and (9) (setting out the text of 8
CFR 103.7(b)(1)(i)(III) and (JJJ) as of October 1, 2020, except
providing that the fee is scheduled to end on September 30, 2027, as
required by section 30203 of Public Law 115-123 (Feb. 9, 2018)). DHS
may address the 9-11 Response and Biometric Entry-Exit Fees for H-1B
and L-1 Nonimmigrant Workers in a separate rulemaking in the future.
---------------------------------------------------------------------------

\315\ Section 402(g) of Div. O of Public Law 114-113 added a new
section 411 to the Air Transportation Safety and System
Stabilization Act, 49 U.S.C. 40101 note. Section 411 provided that
the fees collected thereunder would be divided 50/50 between general
Treasury and a new ``9-11 Response and Biometric Exit Account,''
until deposits into the latter amounted to $1 billion, at which
point further collections would go only to general Treasury.
Deposits into the 9-11 account are available to DHS for a biometric
entry-exit screening system as described in 8 U.S.C. 1365b.
---------------------------------------------------------------------------

T. Adjusting USCIS Fees for Inflation

DHS is proposing to codify a provision that will authorize it to
adjust the fees prescribed in proposed 8 CFR 106.2 by the rate of
inflation. Proposed 8 CFR 106.2(c). Before DHS removed it with the 2020
fee rule, 8 CFR 103.7(b)(3)(Oct. 1, 2020) provided that DHS may adjust
USCIS immigration benefit fees annually by publication of an inflation
adjustment notice in the Federal Register. The adjustment was based on
Federal employee salary inflation figures issued by the Office of
Management and Budget. Id. DHS last adjusted fees by inflation in 2005.
See, 70 FR 56182 (Sept. 26, 2005). In the 2020 fee rule, DHS removed
that provision for a number of reasons. First, an agency cannot publish
a document in the Notices category of the Federal Register that
provides that regulated parties ignore the CFR and follow what the
Notice provides instead. That violates the Federal Register Act, 44
U.S.C. 1510, and its implementing regulations, 1 CFR part 21. Thus, 8
CFR 103.7(b)(3) did not provide the authorization for which it was
intended. In addition, DHS felt that adjusting USCIS fees by inflation
or social security cost of living adjustments would be insufficient to
recover the full cost of providing adjudication and naturalization
services. See 85 FR 46867.
DHS has reconsidered the value of codifying an inflationary
adjustment provision. Regardless of the CFO Act requirements, and
although DHS has completed its biennial fee reviews as required, the
time required to propose and finalize new full cost recovery fee
schedules does not allow DHS to make timely adjustments to USCIS fees
to keep up with the effects of changes in immigration laws, policy, or
the costs of services. DHS has not calculated what the effects of an
inflation adjustment of fees in intervening years between fee rules
would have been. However, while we assume that inflationary adjustments
would not have provided USCIS with sufficient revenue to fully cover
costs, we think intermittent adjustments would have ameliorated the
size of fee adjustments when they were made via rulemaking.
DHS proposes to use the Consumer Price Index for All Urban
Consumers (CPI-U), as published by the U.S. Department of Labor, U.S.
Bureau of Labor Statistics, as the inflation index for these fee
adjustments.\316\ Proposed 8 CFR 106.2(c). In recognition of the rapid
growth in the size of transfers between a growing number of
stakeholders affected by the past three fee rules, adjusting USCIS fees
for inflation as measured by the CPI-U may insure future revenues
against the gradual erosion of real fee revenue dollars in the event
that future rulemakings are

[[Page 517]]

slowed by intensive, careful consideration of complex competing
interests and impacts. Consistent with the FPG, this approach may also
base fees on the constant-dollar value to consumers, generally, rather
than more opaque estimates of Government costs or the salaries of
Federal employees. Finally, using the CPI-U as our inflation index for
all fees is consistent with various statutes that have provided that
USCIS will use the CPI to adjust certain fees. See, e.g., Public Law
106-553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21,
2000) (premium processing fee adjustment); 48 U.S.C. 1806(a)(6)(A)(ii)
(Authority to adjust the CNMI education fee for inflation), and; 8
U.S.C. 1356(u)(3)(C) (adjustment of premium processing fees on a
biennial basis).
---------------------------------------------------------------------------

\316\ See, Consumer Price Index, at https://www.bls.gov/news.release/cpi.toc.htm (last viewed July 27, 2022).
---------------------------------------------------------------------------

The impacts of such an adjustment would be analyzed in a future
rule should DHS decide to use this proposed authority. In such a case,
the inflation adjusted fees may be higher or lower than proposed here.
For example and as a point of comparison only, if DHS adjusted the Form
N-400 and biometric services fee by inflation as of March 22, 2022,
then the inflation-adjusted fees would be at least $865, $140 more than
the current fees for Form N-400 of $725 ($640 + $85), and $105 more
than the proposed N-400 fee of $760, but less than the fee set in the
2020 fee rule of $1,170.\317\ Other inflation adjusted fees, such as
those for Forms I-129 or I-485, would likely be less than the fees
proposed in this rule. Future inflation-based fee increases would not
include policy changes. They would only adjust fees. It is unlikely
that DHS would pursue an inflation-based fee adjustment until FY 2025
or at least one year after DHS finalizes the fees it proposes in this
rule.
---------------------------------------------------------------------------

\317\ Current fees became effective on Dec. 23, 2016. See 81 FR
73292. The current fees for Form N-400 ($640) and biometric services
($85) total $725 for most applicants. The consumer price index for
all urban consumers (CPI-U) was 241.432 in Dec. 2016 and 289.109 in
Mar. 2022. The change in the index between these two periods was
47.68 or 19.75 percent. See U.S. Department of Labor, Bureau of
Labor Statistics, All Urban Consumers (CPI-U) tables, available at
https://data.bls.gov/timeseries/CUUR0000SA0. The inflation adjusted
amounts using this example would be as follows: N-400: $640
multiplied by 1.1975, which is approximately $766.38; biometric
services fee: $85 multiplied by 1.1975, which is approximately
$101.79. DHS rounds fees to the nearest $5. Rounded to the nearest
$5, the inflation adjusted fees would be $765 and $100, totaling
$865. The proposed fee for Form N-400 (including the cost of
biometric services) is $760, which is $35 or 5 percent more than the
total current fees of $725 for Form N-400 and biometric services.
---------------------------------------------------------------------------

U. Miscellaneous Technical and Procedural Changes

DHS proposes several technical or procedural changes. This rule
proposes to move the fee regulations for USCIS to a separate part of
chapter I of title 8 of the CFR. It moves them from 8 CFR part 103 to 8
CFR part 106 to reduce the length and density of part 103 as well as to
make it easier to locate specific fee provisions. In addition to the
renumbering and redesignating of paragraphs, this proposed rule has
reorganized and reworded some sections to improve readability. However,
as noted earlier in this preamble, DHS is proposing to adopt the
changes made by the 2020 fee rule as proposed for revision or
republication in this rule.
DHS also proposes to republish the amended title of 8 CFR part 103
to make it more descriptive of its contents. See proposed republished 8
CFR part 103. The title of part 103 before October 2, 2020, was
``Immigration Benefits; Biometric Requirements; Availability of
Records.'' Part 103 contains several significant requirements for
filing requests, forms, and documents with USCIS, especially in 8 CFR
103.2, which should be made clearer to the users of that part.
Therefore, DHS proposes to revise the title of the part to include a
reference to filing requirements. The proposed title is ``Part 103--
Immigration Benefit Requests; USCIS Filing Requirements; Biometric
Requirements; Availability of Records.''
In addition, DHS is proposing and republishing a severability
provision in new 8 CFR part 106. As stated repeatedly in this preamble,
the fees DHS is proposing in this rule are essential to USCIS being
able to fund its operations without further deterioration of its
services. While all of the proposed fees and other changes in this rule
are needed to ensure adequate resources, partially achieving the
objectives of this rule is preferable to achieving none of them. DHS
believes that some of the provisions of each new part can function
sensibly independent of other provisions. As explained in this
preamble, ABC and the full cost recovery fee model that DHS uses to
calculate the fees in this rule results in most of the fees being
dependent on policy decisions that affect the level of other fees. For
example, when DHS shifts the cost of benefit request fees due to policy
considerations, exempts requests from fees, or if fees are capped by
law, most other fees must/then increase to compensate to recover full
cost. On the other hand, certain fees, like the Asylum Program Fee and
genealogy fees, could be removed entirely without affecting all other
fees generally, although they would reduce USCIS projected revenue or
carryover balances. For example, absent the Asylum Program Fee or
appropriations, USCIS may continue to implement the Asylum Processing
IFR, perhaps at a reduced level. Such a funding decision may be similar
to when USCIS anticipated appropriations to fund RAIO, SAVE, and the
Office of Citizenship when it finalized fees in the FY 2010/2011 fee
rule. See 75 FR 58961, 58966. When appropriations resources did not
fully materialize, USCIS used other fee revenue to support these
programs in the time between the FY 2010/2011 fee rule and the FY 2016/
2017 fee rule. See 81 FR 26910-26912. If Congress provides full or
partial appropriations to fund the Asylum Processing IFR, then DHS may
be able to remove or reduce the proposed $600 Asylum Program Fee in a
final rule. If a court ruling were to enjoin the Asylum Processing IFR
or the Asylum Program Fee, then other USCIS operations could continue
to benefit from the increased revenue from other proposed fees while
halting or reducing implementation of the Asylum Processing IFR.
Therefore, to protect the goals for which this rule is being proposed
DHS is codifying our intent that the provisions be severable so that,
if necessary, the regulations can continue to function should a
provision be stricken. See proposed republished 8 CFR 106.6.

IX. Proposed Fee Adjustments to IEFA Immigrant Benefits

At current fee levels, projected USCIS costs for FY 2022 and FY
2023 exceed projected revenue by an average of $1,262.3 million each
year. See Table 6, IEFA Non-Premium Cost and Revenue Comparison.
Therefore, DHS proposes to adjust the fee schedule to recover the full
cost of processing immigration benefit requests and to continue to
maintain or improve current service delivery standards.
After resource costs are identified, the ABC model distributes them
to USCIS' primary processing activities. Table 27 outlines total IEFA
costs by activity. See the supporting documentation in the docket of
this rulemaking for more information on the ABC model, activities, and
results described in this section. While not an activity, the table
lists the Asylum Processing IFR as a separate row to be transparent.

[[Page 518]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.068

Next, the ABC model distributes activity costs to immigration
benefit requests. Each total cost result is based on the resources,
activities, and various drivers which contribute to the estimated cost
of its completion. The ABC model estimates total cost before
calculating unit costs. For total cost by activity as unit costs, see
Appendix VIII of the supporting documentation included in this docket.
Table 28 summarizes total cost estimates by immigration benefit request
based on the ABC model results. As explained earlier in the preamble,
the ABC model excludes costs for TPS and DACA. The table includes
benefit requests without fees. This table includes USCIS costs in the
2-year average for FY 2022/2023. It also includes CBP costs; as such,
the total in Table 28 is higher than in Table 27. See Table 25 in
section VIII.Q. for CBP total costs separately.

[[Page 519]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.069

[[Page 520]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.070

[[Page 521]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.071

[[Page 522]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.072

Table 29 depicts the current and proposed USCIS fees for
immigration benefit requests and biometric services. Current USCIS fees
are available to the public as part of the current Form G-1055, Fee
Schedule, available at https://

[[Page 523]]

www.uscis.gov/g-1055; individual web pages for each form are available
from https://www.uscis.gov/forms/all-forms; and the USCIS Fee
Calculator is available at https://www.uscis.gov/feecalculator. In
addition, the proposed fees are available in the draft version of Form
G-1055 as part of the docket for this rulemaking. For a more detailed
description of the basis for the changes described in this table, see
Appendix Table 3 in the supporting documentation accompanying this
proposed rule. See Table 1 in the Executive Summary of this preamble
for a comparison of current and proposed fees that includes additional
contributing factors, like the proposal to remove the separate
biometric services fee in most cases. Table 1 may more accurately
reflect how the proposed fees affect users.
[GRAPHIC] [TIFF OMITTED] TP04JA23.073

[[Page 524]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.074

[[Page 525]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.075

[[Page 526]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.076

[[Page 527]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.077

[[Page 528]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.078

A. Impact of Fees

For some immigration benefits and services, fees are increasing
substantially. DHS recognizes that this may be challenging for some
customers and stakeholders, especially those that may be taking actions
or making decisions with the expectation that USCIS fees remain
unchanged or increase more modestly. DHS acknowledges that applicants
and petitioners may face additional difficulties in paying the fees,
and may be required to request a fee waiver, save money longer to
afford the fees, or resort to credit cards or borrowing to pursue their
or their family members' immigration benefit. DHS has weighed these
impacts and interests and considered alternatives to the proposals in
this rule as described in this preamble. DHS examined each fee in this
proposed rule and adjusted the fees computed by the fee model where
appropriate and as discussed herein. It is DHS's view that the fees
proposed represent the best balance of access, affordability, and
benefits to the public interest while providing USCIS with the funding
necessary to maintain adequate services.
---------------------------------------------------------------------------

\318\ The current fee for Form I-192 is $585 when filed with and
processed by CBP. When filed with USCIS, the fee is $930. See 8 CFR
103.7(b)(1)(i)(P) (Oct. 1, 2020).
\319\ The $750 fee applies to ``an applicant under the age of 14
years when [the application] is: (i) Submitted concurrently with the
Form I-485 of a parent; (ii) The applicant is seeking to adjust
status as a derivative of his or her parent; and (iii) The child's
application is based on a relationship to the same individual who is
the basis for the child's parent's adjustment of status, or under
the same legal authority as the parent.'' See 8 CFR
103.7(b)(1)(i)(U)(2) (Oct. 1, 2020).
\320\ Currently there are two USCIS fees for Form I-881: $285
for individuals and $570 for families. See 8 CFR
103.7(b)(1)(i)(QQ)(1) (Oct. 1, 2020). EOIR has a separate $165 fee.
DHS proposes no changes to the EOIR fee.
---------------------------------------------------------------------------

DHS notes that the success of this rulemaking in funding USCIS
services depends on the fee-paying request filing volume meeting or
exceeding the projections used in the fee model as described in section
V.B.1.b of this preamble and the supporting documents. Many commenters
on the FY 2020 Fee Rule stated that DHS was increasing USCIS fees to
deter demand for immigration benefits and to discourage immigration in
general. As stated earlier with regard to E.O. 14012, DHS is committed
to encouraging access to immigration benefits. DHS appreciates the
concerns of these earlier commenters, and sincerely hopes that this
rulemaking does not discourage or impede individuals from obtaining the
benefits for which they are eligible. This is true not only as a policy
matter but as a practical necessity. If a USCIS fee rule were to cause
a significant reduction in the demand for USCIS services in its
administration of the legal immigration system, it would not meet DHS
objectives and would cause USCIS serious fiscal problems. A large
reduction in the number of immigration benefit filings on USCIS caused
by the COVID-19 pandemic had enormous detrimental effects on the fiscal
health of USCIS. Thus, taking any actions that could result in fewer
requests being filed would be self-defeating to the purposes of a rule
that adjusts USCIS fees.\321\
---------------------------------------------------------------------------

\321\ DHS has considered, but not identified any direct impacts
on any state government because it is not projected to increase or
decrease the number of immigrants who enter or leave the United
States, or result in a shift of immigrants between or among the
states. To the extent that states, cities, counties or municipal
governments (or organizations that they maintain) serve as advocacy
organizations or submit immigration benefit requests to USCIS, the
impacts on those groups are addressed in the relevant sections of
this rule or the supporting documentation in the docket.
---------------------------------------------------------------------------

DHS also acknowledges that USCIS fees and fee policies affect the
operations of organizations that assist applicants and petitioners with
the preparation and submission of USCIS benefit requests. Assistance
organizations generally do not pay the fees that would be established
by this rule (unless they independently apply to hire a foreign
national employee), and aside from those organizations to which USCIS
provides citizenship and integration grants, DHS has no role in
regulating the functions of such groups. Nonetheless, this rule could
indirectly affect the population and mix of the people who will want to
avail themselves of the services of such organizations; thus, these
groups may choose to obtain additional funding or alter their programs.
As discussed earlier in this proposed rule, absent a fee increase,
USCIS anticipates having insufficient resources to process its
projected workload. Providing USCIS with the funding necessary to
maintain adequate services would benefit our customers and stakeholders
with more timely processing. After considering the impacts on the
affected groups and the objectives of this proposed rule, DHS has
decided to move forward with this rulemaking despite such groups
choosing to adjust their business model to the proposed fees and
policies.\322\
---------------------------------------------------------------------------

\322\ See section X.B.1 of this preamble for a discussion of the
impacts of this rule on small entities.
---------------------------------------------------------------------------

B. USCIS Fiscal Health

As a fee-funded agency, USCIS was directly and adversely affected
by the global pandemic.\323\ This contrasts with congressionally
appropriated agencies, whose budgets are not directly impacted by
fluctuations in fee revenue. To address its deteriorating fiscal
situation when the pandemic compelled a temporary closure of USCIS
offices and led to a plunge in filing and fee receipts, USCIS tightened
its budget while continuing mission critical operations.

[[Page 529]]

USCIS froze hiring and terminated contracts. See section V.A.2. of this
preamble. When USCIS does not have the resources that it needs to meet
its goals, processing times increase and the case processing backlog
grows. Congress authorized an immediate increase in certain premium
processing fees and gave USCIS wider authority to spend the premium
processing revenue. See section III.D. of this preamble. More recently,
USCIS received appropriations from Congress for processing workloads
stemming from the agency backlog, refugee admissions, and Operation
Allies Welcome. See section III.A. of this preamble. USCIS may continue
to seek appropriations to supplement fee-funded operations. If USCIS is
certain to receive appropriations to fund the FY 2023 refugee program
at the time of the final rule, then USCIS may reduce the estimated
budget requirements funded by IEFA fees accordingly. USCIS will still
face resource challenges just in keeping pace with incoming receipts if
its fees do not recover full costs.
---------------------------------------------------------------------------

\323\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Deputy Director for Policy Statement on USCIS'
Fiscal Outlook, Available at https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook (last viewed Jun 25, 2020).
---------------------------------------------------------------------------

C. Planned Increases in Efficiency

USCIS is pursuing efficiencies that will streamline the
adjudication of immigration benefits along with increasing adjudication
capacity without adding additional costs. It is important to note that
these efficiencies are not included in this fee rule; however, they
will be reflected in future fee rules. USCIS expects that future
customers will be able to see the benefits in more quickly adjudicated
cases. DHS plans to address the challenge of the large volume of
pending cases and the associated growth in processing times by focusing
the efforts of the USCIS workforce to process pending cases and by
using policy and operational improvements to reduce both the number of
pending cases and overall processing times.
The USCIS Stabilization Act requires a five-year plan to (1)
establish electronic filing procedures for all applications and
petitions for immigration benefits, (2) accept electronic payment of
fees at all filing locations, (3) issue correspondence, including
decisions, requests for evidence, and notices of intent to deny, to
immigration benefit requestors electronically, and (4) improve
processing times for all immigration and naturalization benefit
requests. See USCIS Stabilization Act, sec. 4103, Public Law 116-159
(Oct. 1, 2020). USCIS provided an implementation plan to Congress and
has begun moving from a primarily paper-based adjudication and
correspondence to an electronic-based process.\324\ Throughout the
implementation of the plan, USCIS expects that efficiencies through the
use of electronic processing will improve future processing times.
Since this is a five-year plan, the results of improving processing
times may not be immediately evident as there are many interconnected
processes associated with adjudicating immigration applications and
petitions. As such, USCIS is not forecasting any financial efficiencies
in this rule.\325\
---------------------------------------------------------------------------

\324\ See USCIS, ``Section 4103 Plan Pursuant to the Emergency
Stopgap USCIS Stabilization Act: Fiscal Year 2021 Report to
Congress'' (Sep. 7, 2021), https://www.uscis.gov/sites/default/files/document/reports/SIGNED-Section-4103-FY2021-Report-9-7-21.pdf
(last reviewed Jan. 19, 2022).
\325\ If USCIS is able to clearly identify reductions in the
costs of USCIS to be recovered under this rule between the proposed
and final rule, DHS may consider those cost reductions to either
reduce the proposed fees, or certain fees based on policy
considerations, in the final rule.
---------------------------------------------------------------------------

There are multiple factors that contribute to calculating the
number of staff needed to adjudicate projected receipt volume. One such
factor is the utilization rate, the amount of time throughout a fiscal
year that an officer spends doing core adjudicative work. Further,
USCIS has broken down utilization rates to ``manageable'' and ``un-
manageable'' time; un-manageable time includes weekends, Federal
holidays, sick and annual leave, while manageable time includes
meetings, reporting, training, and other non-adjudicative work an
officer is required to complete. Since FY 2015, USCIS has seen
utilization rates decrease to below 60 percent. Beginning in FY 2022,
USCIS has set a target utilization rate of 60 percent. While this
certainly provides for more adjudications without the need for
additional staff, it is not factored into this rule because of a nearly
year-long hiring freeze at USCIS, which ended in April of 2021. USCIS
is working to staff back up. Given the efforts within USCIS to staff up
for current vacancies, it is imprudent to account for efficiencies that
USCIS may not realize, because a goal of this rule is to achieve full
cost recovery. However, USCIS expects to achieve a 60 percent
utilization rate as it reduces vacancies by hiring and training the new
staff.
While the volume of immigration benefit requests that USCIS
receives has increased substantially in recent years, DHS recognizes
that USCIS fees have increased at a higher rate than have the annual
number of workload receipts that USCIS receives. In the short run,
absent funding from other sources such as Congressional appropriations,
USCIS must obtain the fees that will result from this proposed rule to
maintain an acceptable level of service. In the longer term, USCIS is
implementing several measures that are intended to assist in increasing
efficiency and reducing costs.
USCIS has examined our processes and begun making changes to
improve efficiency and allow officers to devote more time to work that
requires their expertise and provides the greatest value to the public.
For example, USCIS has taken the following actions:
Made interviews more efficient and effective by ensuring
we are interviewing cases only where an interview will add appreciative
value to the adjudication, and relying on officer judgment to decide
when an interview is necessary to determine eligibility and
admissibility and should not be waived.
Eliminated the need for individuals who have applied for a
change of status (COS) to F-1 student to apply to change or extend
their nonimmigrant status while their initial F-1 COS application is
pending.\326\
---------------------------------------------------------------------------

\326\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Applicants for Change of Status to F-1 Student No
Longer Need to Submit Subsequent Applications to `Bridge the Gap',
https://www.uscis.gov/news/alerts/applicants-for-change-of-status-to-f-1-student-no-longer-need-to-submit-subsequent-applications-to
(last viewed Dec 1, 2021).
---------------------------------------------------------------------------

Suspended the biometrics submission requirement for
certain applicants filing Form I-539, Application To Extend/Change
Nonimmigrant Status, requesting an extension of stay in or change of
status to H-4, L-2, and E nonimmigrant status.\327\
---------------------------------------------------------------------------

\327\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, USCIS Temporarily Suspends Biometrics Requirement
for Certain Form I-539 Applicants, https://www.uscis.gov/news/alerts/uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants (last viewed Dec 1, 2021).
---------------------------------------------------------------------------

Allowed fingerprint and photograph reuse while ASC
services and/or operations were at reduced capacity as a result of the
COVID-19 pandemic and when there was no need for an in-person identity
verification at an ASC.\328\
---------------------------------------------------------------------------

\328\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, USCIS to Continue Processing Applications for
Employment Authorization Extension Requests Despite Application
Support Center Closures, https://www.uscis.gov/news/alerts/uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite (last viewed Dec 1, 2021).
---------------------------------------------------------------------------

Extended the time that receipt notices can be used to show
evidence of status from 18 months to 24 months for petitioners who
properly file Form I-751, Petition to Remove Conditions on Residence,
or Form I-829, Petition by

[[Page 530]]

Investor to Remove Conditions on Permanent Resident Status.\329\
---------------------------------------------------------------------------

\329\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, USCIS Extends Evidence of Status for Conditional
Permanent Residents to 24 Months with Pending Form I-751 or Form I-
829, https://www.uscis.gov/newsroom/alerts/uscis-extends-evidence-of-status-for-conditional-permanent-residents-to-24-months-with-pending-form (last viewed Dec 1, 2021).
---------------------------------------------------------------------------

Returned to adjudicating asylum workload on a last-in-
first-out basis.\330\
---------------------------------------------------------------------------

\330\ USCIS, USCIS to Take Action to Address Asylum Backlog,
available at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog (last updated Feb. 2, 2018). See
section III.B of this preamble for a discussion of the FY 2022
appropriation for backlog reduction.
---------------------------------------------------------------------------

In addition, USCIS has transitioned non-adjudicative work from
adjudicators to other staff, has centralized the delivery of
information services through the policies and processes in place to
allow USCIS Contact Center, and is leveraging electronic processing and
automation. Applicants, petitioners, and requestors also can track the
status of their immigration benefit requests online by using their
receipt number or by creating an online account at https://uscis.gov/casestatus. Applicants may make an ``outside normal processing time''
case inquiry for any benefit request pending longer than the time
listed for the high end of the range by submitting a service request
online at https://egov.uscis.gov/e-request/ or calling the USCIS
Contact Center at 1-800-375-5283.
USCIS expects to improve the user experience as it continues to
transition to online filing and electronic processing of immigration
applications and petitions. With a new person-centric electronic case
processing environment, USCIS will possess the data necessary to
provide near-real-time processing updates on the status of a case and
the time that has elapsed between actions for each individual case.
This provides greater transparency to the public on how long it will
take to process each case effective as it moves from stage to stage
(for example, biometrics submission, interview, decision). In addition,
USCIS has adjusted how it calculates and posts processing time
information to improve the timeliness of such postings, and to achieve
greater transparency. USCIS will continue to provide processing times
in an accurate and transparent fashion.
Finally, as discussed in section V.A.2.b., DHS proposes to fund
with IEFA non-premium funds 1,127 staff positions currently supported
by premium processing funds. Realigning the cost of these staff to non-
premium funds will free up an equivalent amount of premium processing
funding for use by USCIS as it pursues additional investments in its
online filing and electronic processing capabilities. Furthermore,
these premium processing funds also may fund additional staff for
backlog reduction efforts, which may result in reduced backlog sizes
and decreased processing times.

X. Statutory and Regulatory Requirements

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

Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to
assess the costs and benefits of available alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, and public
health and safety effects, distributive impacts, and equity). E.O.
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), within the
Office of Management and Budget (OMB), has designated this proposed
rule a significant regulatory action that is economically significant
under section 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed
this regulation.
The fee adjustments, as well as changes to the forms and fee
structures used by USCIS, would result in net costs, benefits, and
transfer payments. For the 10-year period of analysis of the rule (FY
2023 through FY 2032), DHS estimates the annualized net costs to the
public would be $532,379,138 discounted at 3- and 7-percent. Estimated
total net costs over 10 years would be $4,541,302,033 discounted at 3-
percent and $3,739,208,286 discounted at 7-percent.
The proposed changes in this rule would also provide several
benefits to DHS and applicants/petitioners seeking immigration
benefits. For the Government, the primary benefits include reduced
administrative burdens and fee processing errors, increased efficiency
in the adjudicative process, and the ability to better assess the cost
of providing services, which allows for better aligned fees in future
regulations. The primary benefits to the applicants/petitioners include
simplification of the fee payment process for some forms, elimination
of the $30 returned check fee, USCIS' expansion of the electronic
filing system to include more forms, and for many applicants, limited
fee increases and additional fee exemptions to reduce fee burdens.
Fee increases and other changes in this proposed rule would result
in annualized transfer payments from applicants/petitioners to USCIS of
approximately $1,612,133,742 discounted at both 3-percent and 7-
percent. The total 10-year transfer payments from applicants/
petitioners to USCIS of approximately $13,751,827,819 at a 3-percent
discount rate and $11,322,952,792 at a 7-percent discount rate.
Fee reductions and exemptions in this proposed rule would result in
annualized transfer payments from USCIS to applicants/petitioners of
approximately $116,372,429 discounted at both 3-percent and 7-percent.
The total 10-year transfer payments from USCIS to applicants/
petitioners would be $992,680,424 at a 3-percent discount rate and
$817,351,244 at a 7-percent discount rate.
The annualized transfer payments from the Department of Defense
(DoD) to USCIS would be approximately $222,145 at 3- and 7-percent
discount rates. The total 10-year transfer payments from DoD to USCIS
would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-
percent discount rate. These costs, transfers, and cost savings
(qualitative benefits) are briefly described below in Table 30, and in
more detail in a separate Regulatory Impact Analysis.
BILLING CODE 9111-97-P

[[Page 531]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.079

[[Page 532]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.080

[[Page 533]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.081

[[Page 534]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.082

[[Page 535]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.083

[[Page 536]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.084

[[Page 537]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.085

[[Page 538]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.086

[[Page 539]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.087

[[Page 540]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.088

[[Page 541]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.089

[[Page 542]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.090

[[Page 543]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.091

[[Page 544]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.092

[[Page 545]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.093

DHS has prepared a full analysis according to E.O. 12866 and E.O.
13563, which can be found in the docket for this rulemaking or by
searching for RIN 1615-AC18 on www.regulations.gov. In addition to the
impacts summarized above, Table 31 presents the accounting statement as
required by Circular A-4.\333\
---------------------------------------------------------------------------

\331\ Combines both Forms I-526, Immigrant Petition by
Standalone Investor and I-526E, Immigrant Petition by Regional
Center Investor. USCIS revised Form I-526 and created Form I-526E as
a result of the EB-5 Reform and Integrity Act of 2022.
\332\ These fee exemptions do not impact eligibility for any
particular form or when an individual may file the form. They are in
addition to the forms listed under proposed 8 CFR 106.2 for which
DHS proposes to codify that there is no fee.
\333\ OMB Circular A-4 is available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf (last viewed on September 22, 2022).

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

[[Page 546]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.094

[[Page 547]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.095

BILLING CODE 9111-97-C

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996, requires
Federal agencies to consider the potential impact of regulations on
small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. DHS nonetheless welcomes comments regarding potential impacts
on small entities, which DHS may consider as appropriate in a final
rule.
In addition, the courts have held that the RFA requires an agency
to perform an initial regulatory flexibility analysis (IRFA) of small
entity impacts only when a rule directly regulates small entities.
Below is a summary of the Small Entity Analysis (SEA). The complete
detailed SEA \334\ is available in the rulemaking docket at https://www.regulations.gov.
---------------------------------------------------------------------------

\334\ DHS, USCIS Small Entity Analysis (SEA) for the USCIS Fee
Schedule Proposed Rule dated May 24, 2022.
---------------------------------------------------------------------------

Individuals, rather than small entities, submit the majority of
immigration and naturalization benefit applications and petitions, but
this proposed rule would affect entities that file and pay fees for
certain immigration benefit requests. Consequently, there are six
categories of USCIS benefits that are subject to a small entity
analysis for this proposed rule: Petition for a Nonimmigrant

[[Page 548]]

Worker, Form I-129; Immigrant Petition for an Alien Worker, Form I-140;
Civil Surgeon Designation, Form I-910; Petition for Amerasian,
Widow(er), or Special Immigrant, Form I-360; Genealogy Forms G-1041 and
G-1041A, Index Search and Records Requests; and the Application for
Regional Center Designation Under the Immigrant Investor Program, Form
I-956, and the Regional Center Annual Statement, Form I-956GA.
DHS does not believe that the increase in fees proposed in this
rule would have a significant economic impact on a substantial number
of small entities that file I-140, I-910, or I-360. DHS does not have
sufficient data on the revenue collected through administrative fees by
regional centers to definitively determine the economic impact on small
entities that may file Form I-956 or Form I-956G.
DHS also does not have sufficient data on the requestors that file
genealogy forms, Forms G-1041 and G-1041A, to determine whether such
filings were made by entities or individuals and, thus, is unable to
determine if the fee increase for genealogy searches is likely to have
a significant economic impact on a substantial number of small
entities.
DHS is publishing this IRFA to aid the public in commenting on the
small entity impact of its proposed adjustment to the USCIS fee
schedule. In particular, DHS requests information and data that would
help to further assess the impact of the fee changes on the genealogy
forms or the regional center forms on small entities.
1. Initial Regulatory Flexibility Analysis (IRFA)
a. A Description of the Reasons Why the Action by the Agency Is Being
Considered
DHS proposes to adjust fees USCIS charges for certain immigration
and naturalization benefits. DHS has determined that current fees would
not recover the full costs of services provided. Adjustment to the fee
schedule is necessary to recover costs and maintain adequate service.
b. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
DHS's objectives and legal authority for this proposed rule are
discussed in the preamble.
c. Description and, Where Feasible, an Estimate of the Number of Small
Entities to Which the Proposed Rule Would Apply
As noted above, below is a summary of the Small Entity Analysis
(SEA). The complete detailed SEA is available in the rulemaking docket
at https://www.regulations.gov. The SEA has a full analysis of all
samples for each small entity form described below, in the Initial
Regulatory Flexibility Act Analysis.
Entities affected by this proposed rule are those that file and pay
fees for certain immigration benefit applications and petitions on
behalf of a foreign national. These applications include Form I-129,
Petition for a Nonimmigrant Worker; Form I-140, Immigrant Petition for
an Alien Worker; Form I-910, Civil Surgeon Designation; Form I-360,
Petition for Amerasian, Widow(er), or Special Immigrant; Genealogy
Forms G-1041 and G-1041A, Index Search and Records Requests; Form I-956
(formerly Form I-924), Application for Regional Center Designation
Under the EB-5 Regional Pilot Program, and Form I-956G (formerly Form
I-924A), Regional Center Annual Statement. Annual numeric estimates of
the small entities impacted by this fee increase total (in
parentheses): Form I-129 (75,269 entities), Form I-140 (17,417
entities), Form I-910 (382 entities), and Form I-360 (465
entities).\335\ DHS was not able to determine the numbers of regional
centers or genealogy requestors that would be considered small entities
and; therefore, does not provide numeric estimates for Form I-956, Form
I-956G, or Forms G-1041 and G-1041A.\336\
---------------------------------------------------------------------------

\335\ Calculation: 86,715 Form I-129 * 86.8 percent = 75,269
small entities; 25,279 Form I-140 * 68.9 percent = 17,417 small
entities; 428 Form I-910 * 89.3 percent = 382 small entities; 489
Form I-360 * 95.0 percent = 465 small entities.
\336\ Small entity estimates are calculated by multiplying the
population (total annual receipts for the USCIS form) by the
percentage of small entities, which are presented in subsequent
sections of this analysis.
---------------------------------------------------------------------------

This rule applies to small entities, including businesses, non-
profit organizations, and governmental jurisdictions filing for the
above benefits. Forms I-129 and I-140 would see a number of industry
clusters impacted by this rule (see Appendix A of the Small Entity
Analysis (SEA) for a list of impacted industry codes for Forms I-129,
I-140, I-910, and I-360). The fee for civil surgeon designation would
apply to physicians requesting such designation. The fee for Amerasian,
widow(er), or special immigrants would apply to any entity petitioning
on behalf of a religious worker. Finally, DHS is creating these new
forms as stated above, as part of the EB-5 Reform and Integrity Act of
2022. Since Form I-956/I-956G will be new forms and historical data
does not exist; therefore, DHS will use historical data of the previous
Form I-924, Application for Regional Center Designation Under the
Immigrant Investor Program and Form I-924A, Annual Certification of
Regional Center as a proxy for the analysis. The Form I-956 would
impact any entity seeking designation as a regional center under the
Immigrant Investor Program or filing an amendment to an approved
regional center application. Captured in the dataset for Form I-956 is
also Form I-956G, which regional centers must file annually to
establish continued eligibility for regional center designation for
each fiscal year.
DHS does not have sufficient data on the requestors for the
genealogy forms, Forms G-1041 and G-1041A, to determine if entities or
individuals submitted these requests. DHS has previously determined
that requests for historical records are usually made by
individuals.\337\ If professional genealogists and researchers
submitted such requests in the past, they did not identify themselves
as commercial requestors and thus could not be segregated in the data.
Genealogists typically advise clients on how to submit their own
requests. For those who submit requests on behalf of clients, DHS does
not know the extent to which they can pass along the fee increases to
their individual clients. DHS assumes genealogists have access to a
computer and the internet. DHS is unable to estimate the online number
of index searches and records requests; however, some will receive a
reduced fee and cost savings, by filing online. Therefore, DHS does not
currently have sufficient data to definitively assess the estimate of
small entities for these requests.
---------------------------------------------------------------------------

\337\ See Establishment of a Genealogy Program, 73 FR 28026 (May
15, 2008).
---------------------------------------------------------------------------

1. Petition for a Nonimmigrant Worker, Form I-129
Funding the Asylum Program With Employer Form I-129 by Visa
Classification Petition Fees
In this proposed rule, DHS proposes a new Asylum Program Fee of
$600 be paid by any employers who file either a Form I-129, Petition
for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien
Worker. Proposed 8 CFR 106.2(c)(13). DHS has determined that the Asylum
Program

[[Page 549]]

Fee is an effective way to shift some costs to requests that are
generally submitted by petitioners who have more ability to pay, as
opposed to shifting those costs to all other fee payers applications/
petitioners. DHS determined the Asylum Program Fee by calculating the
amount that would need to be added to the fees for Form I-129 and Form
I-140 to collect the Asylum Processing IFR estimated annual costs.\338\
The Asylum Program Fee may be used to fund part of the costs of
administering the entire asylum program and would be due in addition to
the fee those petitioners would pay under USCIS' standard costing and
fee collection methodologies for their Form I-129 and Form I-140
benefit requests.
---------------------------------------------------------------------------

\338\ DHS acknowledges that, by using the middle of the range of
costs, if actual costs are higher than that, then the USCIS fee
schedule will be set at a level that is less than what will be
required to recover all of the costs added by the Asylum Processing
IFR, all other factors remaining the same. Estimated annual costs of
the Asylum Processing IFR (mid-range estimate): FY 2022 total costs
of $438.2 million plus FY 2023 total costs of $413.6 million equals
$851.8. Average total costs of FY 2022/2023 equal $425.9 million.
That figure represents the estimated costs that are directly
attributable to the implementation of that rule.
---------------------------------------------------------------------------

DHS is not separating Form I-129 into multiple forms in this
proposed rule as it did in the 2020 fee rule, but it is taking that
action separately as a revision of the currently approved Form I-129
information collection under the Paperwork Reduction Act. In this
proposed rule, DHS proposes different fees for Form I-129 based on the
nonimmigrant classification being requested in the petition, the number
of beneficiaries on the petition, and, in some cases, according to
whether the petition includes named or unnamed beneficiaries. The
proposed fees are calculated to better reflect the costs associated
with processing the benefit requests for the various categories of
nonimmigrant worker. The current base filing fee for Form I-129 is
$460. DHS proposes separate H-2A and H-2B fees for petitions with named
workers and unnamed workers.
In Table 32a, as stated above, the Asylum Program Fee of $600 would
be included with each Form 1-129 Petition for a Nonimmigrant Worker
classification. It would apply to all fee-paying receipts for Forms I-
129, I-129CW, and I-140. For example, it would apply to all initial
petitions, changes of status, and extensions of stay that use Form I-
129.
BILLING CODE 9111-9-P
[GRAPHIC] [TIFF OMITTED] TP04JA23.096

For petitioners filing Form I-129, DHS proposes increasing the fee
filed for all worker types. The fee adjustments and percentage
increases are summarized, shown in Table 32b. For petitioners filing
Form I-129, DHS proposes increasing the fee filed for all worker types.
The fee adjustments and percentage increases are summarized below. H-1B
classification cap-subject petitions will include a $215 registration
fee, an increase of $205 from the original $10 fee. Non-cap subject
petitions (e.g., extension petitions or cap-exempt filer petitions)
would not have to pay the registration fee. This registration fee is
added to the fee increase and results in an overall increase for cap-
subject H-1B classification petitions of $920 ($215 + $705).
---------------------------------------------------------------------------

\339\ USCIS in this SEA used the H-1B, Petition for Nonimmigrant
Worker: H-1B Classification fee of $1,595 = The fee includes the
$1,380 proposed fee for H-1B Classification + $215 initial mandatory
for cap-subject H-1B Registration Fee (current $10 to proposed $215;
$205 dollar increase). This registration fee of $215 is for each
registration, each registration is for a single beneficiary.
Registrants or their representative are required to pay the $215
non-refundable H-1B registration fee for each beneficiary before
beng eligible to submit a registration for that beneficiary for the
H-1B cap. The fee will not be refunded if the registration is not
selected, withdrawn, or invalidated. H-1B cap-exempt petitions are
not subject to registration and are not required to pay the
registration fee of $215; therefore, those petitioners would only
pay the $1,380 propoposed fee. See Registration Fee Requirement for
Petitioners Seeking to File H-1B Petitions on Behalf of Cap Subject
Aliens, Final Rule (84 FR 60307, November 8, 2019). Available at
https://www.govinfo.gov/content/pkg/FR-2019-11-08/pdf/2019-24292.pdf. See Regulatory Impact Analysis in the docket on
regulations.gov, section (3)(H), Separate Fees, for Form I-129,
Petition for a Nonimmigrant Worker, by Nonimmigrant Classification
and Limit Petitions Where Multiple Beneficiaries are Permitted to 25
Named Beneficiaries per Petition, Table 22 and 23, for further
detail on the cap and non-cap H-1B petitions.

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

[[Page 550]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.097

To calculate the impact of this increase, DHS estimated the total
costs associated with the proposed fee increase for each entity and
divided that amount by the sales revenue of that entity.\341\ H-1B
classification cap-subject petitions will include a $215 registration
fee, an increase of $205 from the original $10 fee. This registration
fee is added to the fee increase and results in an overall increase for
H-1B classification petitions of $920 ($215 + $705). Because entities
can file multiple petitions, the analysis considers the number of
petitions submitted by each entity. Based on the proposed fee increases
for Form I-129, this will amount to average impacts on all 353 small
entities with revenue data as summarized in Table 32c.\342\ DHS
determined that 289 of the 353 entities searched were small entities
based on sales revenue data, which were needed to estimate the economic
impact of the proposed rule.\343\
---------------------------------------------------------------------------

\340\ USCIS in this SEA used the H-1B, Petition for Nonimmigrant
Worker: H-1B Classification fee of $1,595 = The fee includes the
$1,380 proposed fee for H-1B Classification + $215 initial mandatory
for cap-subject H-1B Registration Fee (current $10 to proposed $215;
$205 dollar increase). This registration fee of $215 is for each
registration, each registration is for a single beneficiary.
Registrants or their representative are required to pay the $215
non-refundable H-1B registration fee for each beneficiary before
beng eligible to submit a registration for that beneficiary for the
H-1B cap. The fee will not be refunded if the registration is not
selected, withdrawn, or invalidated. H-1B cap-exempt petitions are
not subject to registration and are not required to pay the
registration fee of $215; therefore, those petitioners would only
pay the $1,380 propoposed fee. See Registration Fee Requirement for
Petitioners Seeking to File H-1B Petitions on Behalf of Cap Subject
Aliens, Final Rule (84 FR 60307, November 8, 2019). Available at
https://www.govinfo.gov/content/pkg/FR-2019-11-08/pdf/2019-24292.pdf. See Regulatory Impact Analysis in the docket on
regulations.gov, section (3)(H), Separate Fees, for Form I-129,
Petition for a Nonimmigrant Worker, by Nonimmigrant Classification
and Limit Petitions Where Multiple Beneficiaries are Permitted to 25
Named Beneficiaries per Petition, Table 22 and 23, for further
detail on the cap and non-cap H-1B petitions.
\341\ Total Impact to Entity = (Number of Petitions Submitted
per Entity x $X Amount of Fee Increase)/Entity Sales Revenue. DHS
used the lower end of the sales revenue range for those entities
where ranges were provided.
\342\ Random sample of small entities with revenue data selected
to estimate impacts is described in Table 1 of the SEA.
\343\ Entities that were considered small based on employee
count with missing revenue data were excluded.

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

[[Page 551]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.098

BILLING CODE 9111-97-C
Using a 12-month period of data on the number of Form I-129
petitions filed from October 1, 2019, through September 31, 2020, DHS
collected internal data for each filing organization including the
name, Employer Identification Number (EIN), city, state, zip code, and
number/type of filings. Each entity may make multiple filings. For
instance, there were receipts for 553,889 Form I-129 petitions, but
only 86,715 unique entities that filed those petitions. Since the
filing statistics do not contain information such as the revenue of the
business, DHS used third-party sources of data to collect this
information. DHS used a business provider database--Data Axle--as well
as three open-access databases--Manta, Cortera, and Guidestar--to help
determine an organization's small entity status and then applied Small
Business Administration (SBA) size standards to the entities under
examination.\344\
---------------------------------------------------------------------------

\344\ Office of Advocacy, SBA, Size Standards Table. Available
at https://www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------

The method DHS used to conduct the SEA was based on a
representative sample of the impacted population with respect to each
form. To identify a representative sample, DHS used a standard
statistical formula to determine a minimum sample size of 384 entities,
which included using a 95 percent confidence level and a 5 percent
confidence interval for a population of 86,715 unique entities filing
Form I-129 petitions. Based on previous experience conducting small
entity analyses, DHS expects to find 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, DHS selected a sample size that was approximately 69
percent larger than the necessary minimum to allow for non-matches
(filing entities that could not be found in any of the four databases).
Therefore, DHS conducted searches on 650 randomly selected entities
from a population of 86,715 unique entities that filed Form I-129
petitions.
Of the 650 searches for small entities that filed Form I-129
petitions, 439 searches returned a successful match of a filing
entity's name in one of the databases and 211 searches did not match a
filing entity. Based on previous experience conducting regulatory
flexibility analyses, DHS assumes filing entities not found in the
online database are likely to be small entities. As a result, to
prevent underestimating the number of small entities this rule would
affect, DHS conservatively considers all of the non-matched entities as
small entities for the purpose of this analysis. Among the 439 matches
for Form I-129, DHS determined 353 to be small entities based on
revenue or employee count and according to their assigned North
American Industry Classification System (NAICS) code. Therefore, DHS
was able to classify 564 of 650 entities as small entities that filed
Form I-129 petitions, including combined non-matches (211), matches
missing data (0), and small entity matches (353). Using the online
databases mentioned above (Data Axle, Manta, Cortera, and Guidestar),
the 0 matches missing data found in the databases lacked applicable
revenue or employee count data.
DHS determined that 564 of 650 (86.8 percent) of the entities
filing Form I-129 petitions were small entities. Furthermore, DHS
determined that 353 of the 650 entities searched were small entities
based on sales revenue or employee data, which were needed to estimate
the economic impact of the proposed rule. Since these 353 small
entities were a subset of the random sample of 650 entity searches,
they were considered statistically significant in the context of this
research. To calculate the economic impact of this rule, DHS estimated
the total costs associated with the proposed fee increase for each
entity and divided that amount by the sales revenue of that
entity.\345\
---------------------------------------------------------------------------

\345\ Total Economic Impact to Entity = (Number of Petitions
Submitted per Entity * $X Amount of Fee Increase)/Entity Sales
Revenue. DHS used the lower end of the sales revenue range for those
entities where ranges were provided. Entities in the population
without complete or with no EIN information (such as incomplete
employee data or revenue information), were removed before the
sample was selected for this analysis.
---------------------------------------------------------------------------

Among the 353 matched small entities, 289 small entities had
reported revenue data, 90.4 percent experienced

[[Page 552]]

an economic impact of less than 1 percent with the exception of 9.6 of
the small entities. Those small entities with greater than 1 percent
impact filed multiple petitions and had a low reported revenue.
Therefore, these small entities may file fewer petitions as a result of
this proposed rule. Depending on the immigration benefit request, the
average impact on all 289 small entities with revenue data ranges from
0.25 to 0.75 percent as shown above in Table 29c. In other words, no
matter which version of the separated Form I-129 is applicable, the
greatest economic impact proposed by this fee change was 19.04 percent
and the smallest was 0.005 percent per entity. The average impact on
all 289 small entities with revenue data was 0.57 percent.
Small Entity Classifications
With an aggregated total of 564 out of a sample size of 650, DHS
inferred that a majority, or 86.8 percent, of the entities filing Form
I-129 petitions were small entities. Small entities filing petitions
could be for-profit businesses or not-for-profit entities. To
understand the extent to which not-for-profits were included in the
samples selected for each form DHS categorized entities as for-profit
or not-for-profit. The business data provider databases do not
distinguish if entities are for-profit or not-for-profit, so DHS used
the assumption that entities with NAICS codes 712 (Museums, Historical
Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic,
Professional, and Similar Organizations), and 6241 (Family Social
Services) were not-for-profit. The NAICS code 611 (Educational
Services) may have for-profit entities. Most of the sample consisted of
small businesses when looked at by type of small entity. There are no
small governmental jurisdictions in the sample and 38 small not-for-
profits.
2. Immigrant Petition for an Alien Worker, Form I-140
Funding the Asylum Program With Form I-140 Petition Fees
As explained in section X.B.1., Petition for a Nonimmigrant Worker,
Form I-129 Funding the Asylum Program with Employer Form I-129 by Visa
Classification Petition Fees, DHS proposes a new Asylum Program Fee of
$600 to be paid by any Form I-140, Immigrant Petition for Alien Worker.
This Asylum Program Fee adds a fee for Form I-140 petitioners of $600
while maintaining the fees other immigration benefit requestors that
this rule proposes lower than would be proposed if the costs were
spread among all other fee payers. For example, by charging the Asylum
Program Fee to I-140 petitioners as well as the I-129 petitioners, it
helps recover the cost of the Asylum Program work while minimizing fee
increases on forms that do not recover full cost (Forms N-400, I-600,
I-800, etc.), or without adding a fee to forms that currently have none
(Forms I-589, I-590, I-914, I-918, etc.). If Forms I-129 and I-140
recover more of those costs, then that means other forms need not
recover as much. This results in lower proposed fees for certain forms,
and others that recover more than full cost in this proposal. It would
apply to all fee-paying receipts for Form I-140 and Form I-129.
DHS proposes to increase the fee to file Immigrant Petition for an
Alien Worker, Form I-140, from $700 to $715, an increase of $15 (2
percent). The total proposed fee would include the $600 Asylum Program
Fee for a total of $1,315, an overall increase of $615 (88 percent) per
petition. Using a 12-month period of data on the number of Form I-140
petitions filed from October 1, 2019, through September 31, 2020, DHS
collected internal data similar to that of Form I-129. The total number
of Form I-140 petitions was 129,531, with 25,279 unique entities that
filed petitions. DHS used the same databases previously mentioned to
search for information on revenue and employee count.
DHS used the same method as with Form I-129 to conduct the SEA
based on a representative sample of the impacted population. To
identify a representative sample, DHS used a standard statistical
formula to determine a minimum sample size of 383 entities, which
included using a 95 percent confidence level and a 5 percent confidence
interval on a population of 25,279 unique entities for Form I-140
petitions. Based on previous experience conducting small entity
analyses, DHS expected to find 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, DHS selected a sample size that was approximately 44
percent larger than the necessary minimum to allow for non-matches
(filing entities that could not be found in any of the four databases).
Therefore, DHS conducted searches on 550 randomly selected entities
from a population of 25,279 unique entities that filed Form I-140
petitions.
Of the 550 searches for small entities that filed Form I-140
petitions, 464 searches successfully matched the name of the filing
entity to names in the databases and 86 searches did not match the name
of a filing entity. Based on previous experience conducting regulatory
flexibility analyses, DHS assumes filing entities not found in the
online databases are likely to be small entities. As a result, in order
to prevent underestimating the number of small entities this rule would
affect, DHS conservatively considers all of the non-matched entities as
small entities for the purpose of this analysis. Among the 464 matches
for Form I-140, DHS determined 292 to be small entities based on
revenue or employee count and according to their NAICS code. Therefore,
DHS was able to classify 379 of 550 entities as small entities that
filed Form I-140 petitions, including combined non-matches (86),
matches missing data (1), and small entity matches (292). Using the
online databases mentioned above (Data Axle, Manta, Cortera, and
Guidestar), one matched entity found in the databases lacked applicable
revenue statistics.
DHS determined that 379 out of 550 (68.9 percent) entities filing
Form I-140 petitions were small entities. Furthermore, DHS determined
that 292 of the 550 searched were small entities based on sales revenue
data, which were needed to estimate the economic impact of the proposed
rule. Since these 292 were a small entity subset of the random sample
of 550 entity searches, they were considered statistically significant
in the context of this research based on sales revenue information.
Similar to Form I-129, DHS calculated the economic impact of this rule
on entities that filed Form I-140 by estimating the total costs
associated with the proposed fee increase for each entity and divided
that amount by the sales revenue of that entity.\346\
---------------------------------------------------------------------------

\346\ Total Impact to Entity = (Number of Petitions Submitted
per Entity * $615 Fee amount Increase)/Entity Sales Revenue. USCIS
used the lower end of the sales revenue range for those entities
where ranges were provided.
---------------------------------------------------------------------------

Among the 292 small entities with reported revenue data, 98 percent
experienced an economic impact of less than 1 percent, with the
exception of 2 percent of the small entities. Using the above
methodology, the greatest economic impact proposed by this fee change
was 2.71 percent and the smallest was 0.006 percent per entity. Because
of the fee increase, these small entities would see a cost increase per
application in filing fees based on petitions. The average impact on
all 292 small entities with revenue data was 0.16 percent.
Small Entity Classification
With an aggregated total of 379 out of a sample size of 550, DHS
inferred that

[[Page 553]]

a majority, or 68.9 percent, of the entities filing Form I-140
petitions were small entities. Small entities filing petitions could be
for-profit businesses or not-for-profit entities. To understand the
extent to which not-for-profits were included in the samples selected
for each form DHS categorized entities as for-profit or not-for-profit.
The business data provider databases do not distinguish if entities are
for-profit or not-for-profit, so DHS used the assumption that entities
with NAICS codes 712 (Museums, Historical Sites, and Similar
Institutions), 813 (Religious, Grantmaking, Civic, Professional, and
Similar Organizations), and 6241 (Family Social Services) were not-for-
profit. The NAICS code 611 (Educational Services) may have for-profit
entities. Similar to the Form I-129 small entity types, the sample of
Form I-140 consisted mainly of small businesses, with no small
governmental jurisdictions in the sample and 15 small not-for-profits.
Cumulative Impact of Form I-129 and Form I-140 Petitions
In addition to the individual Form I-129 and Form I-140 analyses,
USCIS analyzed any cumulative impacts of these form types to determine
if there were any impacts to small entities when analyzed together.
Based on the samples in the individual analyses, USCIS isolated those
entities that overlapped in both samples of Forms I-129 and I-140 by
EIN and revenue. Only 1 entity had an EIN that overlapped in both
samples; this was a large entity that submitted 3 Form I-129 petitions
and 1 Form I-140 petition. Due to little overlap in entities in the
samples, and the relatively minor impacts on revenue of fee increases
of Forms I-129 and I-140, USCIS does not expect the combined impact of
these 2 forms to be an economically significant burden on a number of
small entities.
3. Civil Surgeon Designation, Form I-910
DHS proposes to increase the fee for Civil Surgeon Designations,
Form I-910, from $785 to $1,230, an increase of $445 (57 percent). To
calculate the economic impact of this increase, USCIS estimated the
total costs associated with the fee increase for each entity and
divided that amount by the sales revenue of that entity.\347\ Using a
12-month period of data from October 1, 2019, to September 31,
2020,\348\ DHS collected internal data on filings of Form I-910. The
total number of Form I-910 applications was 639, with 428 unique
entities that filed applications. The third-party databases mentioned
previously were used again to search for revenue and employee count
information.
---------------------------------------------------------------------------

\347\ Total Impact to Entity = (Number of Petitions Submitted
per Entity * $445 Fee Amount Increase) Entity Sales Revenue. USCIS
used the lower end of the sales revenue range for those entities
where ranges were provided.
\348\ DHS acknowledges the broad effects of the COVID-19
international pandemic on the United States and the populations
affected by this rule. However, while most forms were impacted as a
result of COVID, Form I-129 receipts increased in line with recent
years. Thus, we decided to use the most recent fiscal year data from
FY 20 for the samples to complete the supplemental Small Entity
Analysis to maintain consistency across IRFAs regardless of the
general effect of COVID-19 on filings, because that effect is not
applicable to the forms discussed in this section.
---------------------------------------------------------------------------

Using the same methodology as for the Forms I-129 and I-140, USCIS
conducted the SEA based on a representative sample of the impacted
population. To identify a representative sample, DHS used a standard
statistical formula to determine a minimum sample size of 203 entities,
which included using a 95 percent confidence level and a 5 percent
confidence interval on a population of 428 unique entities for Form I-
910. USCIS conducted searches on 300 randomly selected entities from a
population of 428 unique entities for Form I-910 petitions, a sample
size approximately 48-percent larger than the minimum necessary.
Of the 300 searches for small entities that filed Form I-910
petitions, 244 searches successfully matched the name of the filing
entity to names in the databases and 56 searches did not match the name
of a filing entity. DHS assumes filing entities not found in the online
databases are likely to be small entities. DHS also considers all of
the non-matched entities as small entities for the purpose of this
analysis. Among the 244 matches for Form I-910, DHS determined 207 to
be small entities based on their revenue or employee count and
according to their NAICS code. Therefore, DHS was able to classify 268
of 300 entities as small entities that filed Form I-910 petitions,
including combined non-matches (5), matches missing data (56), and
small entity matches (207). DHS also used the online databases
mentioned above (Data Axle, Manta, Cortera, and Guidestar), and the
five matches missing data that were found in the databases lacked
revenue data and associated employment threshold.
DHS determined that 268 out of 300 (89.3 percent) entities filing
Form I-910 applications were small entities. Furthermore, DHS
determined that 207 of the 300 entities searched were small entities
based on sales revenue data, which were needed to estimate the economic
impact of the proposed rule. Since these 207 were a small entity subset
of the random sample of 300 entity searches, they were considered
statistically significant in the context of this research, based on
sales revenue information.
Similar to the Forms I-129 and I-140, DHS calculated the economic
impact of this rule on entities that filed Form I-910 by estimating the
total impact associated with the proposed fee increase for each entity
and divided that amount by the sales revenue of that entity. Among the
207 small entities with reported revenue data, 97.6 percent experienced
an economic impact considerably less than 1 percent, with the exception
of 2.4 percent of the small entities. The greatest economic impact
imposed by this proposed fee change was 1.85 percent and the smallest
was 0.004 percent per entity. The average impact on all 207 small
entities with revenue data was 0.15 percent. The increased fee will
increase individual applicants' cost by $445.
Small Entity Classification
With an aggregated total of 268 out of a sample size of 300, DHS
inferred that a majority, or 89.3 percent, of the entities filing Form
I-910 petitions were small entities. Small entities filing petitions
could be for-profit businesses or not-for-profit entities. To
understand the extent to which not-for-profits were included in the
samples selected for each form DHS categorized entities as for-profit
or not-for-profit. The business data provider databases do not
distinguish if entities are for-profit or not-for-profit, so DHS used
the assumption that entities with NAICS codes 712 (Museums, Historical
Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic,
Professional, and Similar Organizations), and 6241 (Family Social
Services) were not-for-profit. The NAICS code 611 (Educational
Services) may have for-profit entities. The sample of Form I-910
consisted mainly of small businesses, with no small governmental
jurisdictions in the sample and 5 small not-for-profits.
4. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
DHS proposes to increase the fee for entities petitioning on behalf
of foreign religious workers who file using Form I-360 from $435 to
$515, an increase of $80 (18 percent), including entities who petition
on behalf of foreign religious workers. To calculate the impact of the
increase, DHS estimated the total costs

[[Page 554]]

associated with the fee increase for each entity and divided that
amount by the sales revenue of that entity.\349\
---------------------------------------------------------------------------

\349\ Total Impact to Entity = (Number of Petitions Submitted
per Entity * $80 Fee Amount Increase)/Entity Sales Revenue. USCIS
used the lower end of the sales revenue range for those entities
where ranges were provided.
---------------------------------------------------------------------------

Using a 12-month period of data on the number of Form I-360
petitions filed from October 1, 2019, to September 31, 2020, DHS
collected internal data on filings of Form I-360 for religious workers.
The total number of Form I-360 petitions was 2,388, with 489 unique
entities that filed petitions. DHS used the same databases mentioned
previously to search for information on revenue and employee count.
DHS used the same method as with Forms I-129 and I-140 to conduct
the SEA based on a representative sample of the impacted population. To
identify a representative sample, DHS used a standard statistical
formula to determine a minimum sample size of 215 entities, which
included using a 95 percent confidence level and a 5 percent confidence
interval on a population of 489 unique entities for Form I-360
petitions. To account for missing organizations in the online
subscription and public databases, DHS selected a sample size that was
approximately 95 percent larger than the necessary minimum to allow for
non-matches (filing entities that could not be found in any of the four
databases). Therefore, DHS conducted searches on 420 randomly selected
entities from a population of 489 unique entities that filed Form I-360
petitions.
Of the 420 searches for small entities that filed Form I-360
petitions, 248 searches successfully matched the name of the filing
entity to names in the databases and 172 searches did not match the
name of a filing entity in the databases. DHS assumes that filing
entities not found in the online databases are likely to be small
entities. As a result, to prevent underestimating the number of small
entities this rule would affect, DHS conservatively considers all of
the non-matched entities as small entities for the purpose of this
analysis. Among the 248 matches for Form I-360, DHS determined 208 to
be small entities based on revenue or employee count and according to
their NAICS code. Therefore, DHS was able to classify 399 of 420
entities as small entities that filed Form I-360 petitions, including
combined non-matches (172), matches missing data (19), and small entity
matches (208). DHS also used the online databases mentioned above (Data
Axle, Manta, Cortera, and Guidestar), and the 19 matches missing data
that were found in the databases lacked revenue or employee count data.
DHS determined that 399 out of 420 (95.0 percent) entities filing
Form I-360 petitions were small entities. Furthermore, DHS determined
that 208 of the 420 searched were small entities based on sales revenue
data, which were needed to estimate the economic impact of the proposed
rule. Since these 208 small entities were a subset of the random sample
of 420 entity searches, they were considered statistically significant
in the context of this research.
Similar to other forms analyzed in this IRFA, DHS calculated the
economic impact of this rule on entities that filed Form I-360 on
behalf of religious workers by estimating the total costs associated
with the proposed fee increase for each entity. Among the 208 small
entities with reported revenue data, 99.5 percent experienced an
economic impact of less than 1 percent, with the exception of 0.5
percent of the small entities. The greatest economic impact imposed by
this proposed fee change was 4.11 percent and the smallest was 0.0008
percent per entity. The average impact on all 208 small entities with
revenue data was 0.08 percent.
DHS also analyzed the proposed costs of this rule on the
petitioning entities relative to the costs of the typical employee's
salary. Guidelines suggested by the SBA's Office of Advocacy indicate
that the impact of a rule could be significant if the cost of the
regulation exceeds 5 percent of the labor costs of the entities in the
sector.\350\ According to the Bureau of Labor Statistics (BLS), the
mean annual salary is $57,230 for clergy,\351\ $52,880 for directors of
religious activities and education,\352\ and $43,290 for other
religious workers.\353\ Based on an average of 1.59 religious workers
\354\ petitioned for per entity, the additional average annual cost
would be $127.20 per entity.\355\ The additional costs per entity
proposed by this rule represent only 0.22 percent of the average annual
salary for clergy, 0.24 percent of the average annual salary for
directors of religious activities and education, and 0.29 percent of
the average annual salary for all other religious workers.\356\
---------------------------------------------------------------------------

\350\ Office of Advocacy, Small Business Administration ``A
Guide for Government Agencies, How to Comply with the Regulatory
Flexibility Act,'' page 19: Available at https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.
\351\ BLS, ``Occupational Employment Statistics, May 2021,
``Clergy'': https://www.bls.gov/oes/2021/may/oes212011.htm.
\352\ BLS, ``Occupational Employment Statistics, May 2021,
``Directors of Religious Activities and Education'': Available at
https://www.bls.gov/oes/2021/may/oes212021.htm.
\353\ BLS, ``Occupational Employment Statistics, May 2021,
``Religious Workers, All Other'': Available at https://www.bls.gov/oes/2021/may/oes212099.htm.
\354\ USCIS calculated the average filing per entity of 1.6
petitions, from the Form I-360 Sample with Petition Totals in
Appendix E of the SEA for this NPRM. Calculation: (total number of
petitions from each sample id)/(total number of sample Form I-360
petitions) = 667/420 = 1.59 average petitions filed per entity.
\355\ Calculation: 1.59 average petitions per entity * $80
increase in petition fees = $127.20 additional total cost per
entity.
\356\ Calculation: $127.20 additional cost per entity/$57,230
clergy salary x 100 = 0.22 percent; $127.20 additional cost per
entity/$52,880 directors of religious activities and education x 100
= 0.24 percent; $127.20 additional cost per entity/$43,290 other
religious workers x 100 = 0.29 percent.
---------------------------------------------------------------------------

Small Entity Classification
With an aggregated total of 399 out of a sample size of 420, DHS
inferred that a large majority, or 95.0 percent, of the entities filing
Form I-360 petitions were small entities. Small entities filing
petitions could be for-profit businesses or not-for-profit entities. To
understand the extent to which not-for-profits were included in the
samples selected for each form DHS categorized entities as for-profit
or not-for-profit. The business data provider databases do not
distinguish if entities are for-profit or not-for-profit, so DHS used
the assumption that entities with NAICS codes 712 (Museums, Historical
Sites, and Similar Institutions), 813 (Religious, Grantmaking, Civic,
Professional, and Similar Organizations), and 6241 (Family Social
Services) were not-for-profit. The NAICS code 611 (Educational
Services) may have for-profit entities. The sample of Form I-360
consists of a majority not-for-profit entities, primarily composed of
religious institutions. There were no small governmental jurisdictions
in the sample and 221 small not-for-profits.
5. Genealogy Requests--Genealogy Index Search Request, Form G-1041, and
Genealogy Records Request, Form G-1041A
In this proposed rule, DHS establishes an increase in the fee for
the Genealogy Index Search Request, Form G-1041, from $65 to $120, an
increase of $55 (85 percent) for those who mail in this request on
paper. This proposed rule increases the fee for requestors who use the
online electronic Form G-1041 version from the current $65 to $100, an
increase of $35 (54 percent).
In this proposed rule, DHS establishes a fee for Form G-1041A that
would increase from $65 to $260, an increase of $195 (300 percent) for
those who mail

[[Page 555]]

in this request on paper. In this proposed rule, the fee for requestors
who use the online electronic Form G-1041A will increase from the
current $65 to $240, an increase of $175 (269 percent).
Finally, DHS is proposing to charge a fee for requests for a
Certificate of Non-Existence. Currently, USCIS allows individuals to
request a Certificate of Non-Existence to document that USCIS has no
records indicating that an individual became a naturalized citizen of
the United States. This service is often used by individuals gathering
genealogical records to claim the citizenship of another nation. USCIS
operates the Certificate of Non-Existence request process informally
and at no cost to individuals while absorbing the costs to provide this
service.\357\ DHS proposes a fee of $315 for individuals to recover the
estimated full cost of processing these requests, which will require
submission of Form G-1566, Request for a Certificate of Non-Existence,
once approved by OMB.
---------------------------------------------------------------------------

\357\ See 8 CFR 103.7(f) as of October 1, 2020, which provides
that the Director of USCIS, or such officials as he or she may
designate, may certify records when authorized under 5 U.S.C. 552 or
any other law to provide such records.
---------------------------------------------------------------------------

The population affected by this provision includes individuals who
use Form G-1041 to request a search of USCIS historical indices and
individuals who use Form G-1041A to obtain copies of USCIS historical
records found through an index request. The affected population also
includes individuals who request a Certificate of Non-Existence to
document that USCIS has no records indicating that an individual became
a naturalized citizen of the United States. Based on the DHS records,
Table 33 shows the estimated number of genealogy index search requests
and historical records requests that were submitted to USCIS using
Forms G-1041 and G-1041A for FY 2016 through FY 2020. DHS estimates
that an annual average of 5,250 Form G-1041 index search requests and
3,352 Form G-1041A records requests were received during that time. For
both forms, more than 90 percent of the requests were submitted
electronically.
BILLING CODE 9111-97-P

[[Page 556]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.099

BILLING CODE 9111-97-C
Table 33 depicts the FY 2016 through FY 2020 filing receipts of the
certificate of non-existence. DHS bases the estimate for the Form G-
1566 on these receipts and estimates that the average annual receipts
for Form G-1566 would be approximately 1,266.
DHS has previously determined that requests for historical records
are usually made by individuals.\358\ If professional genealogists and
researchers submitted such requests in the past, they did not identify
themselves as commercial requestors and, therefore, DHS could not
separate these data from the dataset. Genealogists typically advise
clients on how to submit their own requests. For those who submit
requests on behalf of clients, DHS does not know the extent to which
they can pass along the fee increases to their individual clients. DHS
assumes genealogists have access to a computer and the internet. DHS is
unable to estimate the online number of index searches and records
requests; however, some will receive a reduced fee and cost savings, by
filing online. Therefore, DHS currently does not have sufficient data
to definitively assess the impact on small entities for these requests.
However, DHS must still recover the full costs of this program. As
stated in the preamble to this proposed rule, reducing the filing fee
for any one benefit request submitted to DHS simply transfers the
additional cost to process this request to other immigration and
naturalization filing fees.
---------------------------------------------------------------------------

\358\ See Establishment of a Genealogy Program, 73 FR 28026 (May
15, 2008).
---------------------------------------------------------------------------

For this proposed rule, DHS is expanding the use of electronic
genealogy requests to encourage requestors to use the electronic
versions of Form G-1041 and Form G-1041A. DHS is also changing the
search request process so that USCIS may provide requestors with
electronic records, if they exist, in response to the initial index
request. These changes may reduce the time it takes to request and
receive genealogy records, and, in some cases, it will eliminate the
need to make multiple search requests and submit separate fees.
Moreover, DHS notes that providing digital records in response to a
Form G-1041 request may reduce the number of Form G-1041A requests that

[[Page 557]]

will be filed since there would already be a copy of the record if it
was previously digitized. DHS proposes to provide the requestor with
those preexisting digital records, if they exist, via email in response
to the initial search request. Electronic versions of the requests
reduce the administrative burden on USCIS by eliminating the need to
manually enter requestor data into its systems. Requestors that cannot
submit the forms electronically may still submit paper copies of both
forms with the required filing fees. DHS recognizes that some small
entities may be impacted by these proposed increased fees but cannot
determine how many or the exact impact. DHS requests comments from the
public on the impacts to small entities of the proposed fee increases
to the genealogy forms.
6. Application for Regional Center Designation Under the EB-5 Regional
Center Pilot Program, Form I- 956 (Formerly Form I-924) and I-956G
(Formerly Form I-924A)
Congress created the EB-5 program in 1990 to stimulate the U.S.
economy through job creation and capital investment by immigrant
investors. The EB-5 regional center program was later added in 1992 by
the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1993. Public Law 102-395, sec.
610, 106 Stat 1828 (Oct. 6, 1992). As amended, the EB-5 program makes
approximately 10,000 visas available annually to foreign nationals (and
their dependents) who invest at least $1,050,00 or a discounted amount
of $800,000 if the investment is in a targeted employment area (TEA)
(which includes certain rural areas and areas of high unemployment) or
infrastructure project in a U.S. business that will create at least 10
full-time jobs in the United States for qualifying employees. See INA
sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8 U.S.C. 11538 U.S.C. 1153. Such
investment amounts are not necessarily indicative of whether the
regional center is appropriately characterized as a small entity for
purposes of the RFA. Due to the lack of regional center revenue data,
DHS assumes regional centers collect revenue primarily through the
administrative fees charged to investors.
On March 5, 2022, the President signed the EB-5 Reform and
Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act,
2022 (Pub. L. 117-103). The EB-5 Reform and Integrity Act of 2022
immediately repealed the Regional Center (RC) Pilot Program created by
the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat.
1828, sec. 610(b). The law also authorizes a new EB-5 Regional Center
Program, which will become effective May 14, 2022 and is authorized
through FY 2026 and makes various changes to the program. As discussed
more fully in section VIII.N. of the NPRM, DHS proposes new fees for
the forms used in the EB-5 program in this proposed rule.
DHS proposes changes to various fees for regional centers and
related immigration benefit requests related to Employment-Based
Immigrant Visa, Fifth Preference (EB-5). The EB-5 Reform and Integrity
Act of 2022 immediately repealed and replaced the prior EB-5 ``regional
center program.'' The EB-5 Reform and Integrity Act of 2022 has no
immediate impact on the staffing levels of the USCIS Immigrant Investor
Program Office, although each existing Regional Center will be required
to submit a request to be re-approved under the law, which could
greatly increase the program workload initially. Nevertheless, and
despite the changes in the law and program, DHS has proposed fees in
this rule based on the currently projected staffing needs to meet the
adjudicative and administrative burden of the Immigrant Investor
Program Office pending the fee study required by section 106(a) of the
EB-5 Reform and Integrity Act of 2022. Thus, the annual filing volume
projections in this rule are based on historical volumes and trends
because the EB-5 Reform and Integrity Act of 2022 is too new for DHS to
accurately estimate its impacts on filing volumes. DHS welcomes
comments from the public on the number of forms for the EB-5 program
that will be submitted annually and how that number will be changed by
the recent legislation. DHS may adjust the estimated filing volumes in
the final rule based on additional analysis and comments on this rule.
DHS is proposing a fee for Form I-956, Application for Regional
Center Designation, is $47,695, a $29,900 (168 percent) increase from
the $17,795 fee for Form I-924, Application for Regional Center
Designation under the Immigrant Investor Program. See 8 CFR
103.7(b)(1)(i)(WW) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(64). DHS
also proposes a $47,695 fee for Form I-956F, Application for Approval
of Investment in a Commercial Enterprise, because its adjudicative
burden is nearly identical to that of the Form I-956. The proposed fee
for Form I-956G, Regional Center Annual Statement, is $4,470, a $1,435
(47 percent) increase from the current $3,035 fee Form I-924A, Annual
Certification of Regional Center. See 8 CFR 103.7(b)(1)(i)(WW) (Oct. 1,
2020); proposed 8 CFR 106.2(a)(66). The EB-5 program encompasses Forms
I-526, I-829, I-956, I-965F, and I-956G.\359\
---------------------------------------------------------------------------

\359\ The Supplement to Form I-956G is used to certify a
Regional Center's continued eligibility for the Regional Center
designation through an annual certification. Each designated
Regional Center entity must file a Form I-956G for each fiscal year
within 90 days after the end of the fiscal year of the calendar year
in which the fiscal year ended. DHS has also created Forms I-956H,
Bona Fides of Persons Involved with Regional Center Program, and I-
956K Registration for Direct and Third-Party Promoters, for the new
EB-5 program. DHS proposes no fee for those forms in this proposed
rule.
---------------------------------------------------------------------------

DHS is creating these new forms as stated above, as part of the EB-
5 Reform and Integrity Act of 2022. Since Form I-956/I-956A will be new
forms and historical data does not exist. Because the immigration
benefit adjudications previously performed using Form I-924 will now be
administered using Forms I-956 and I-956G, DHS will use historical data
of the previous Form I-956 (formerly Form I-924) Application for
Regional Center Designation and Form I-956G (formerly Form I-924A),
Annual Certification of Regional Center as a proxy for the analysis.
Under the Regional Center Program, foreign nationals based their EB-5
petitions on investments in new commercial enterprises located within
``regional centers.'' DHS regulations define a regional center as an
economic unit, public or private, that promotes economic growth,
regional productivity, job creation, and increased domestic capital
investment. See 8 CFR 204.6(e). Requests for regional center
designation must be filed with USCIS on Form I-956 (formerly Form I-
924), Application for Regional Center Designation Under the Immigrant
Investor Program. See 8 CFR 204.6(m)(3) and (4). Once designated,
regional centers must provide USCIS with updated information to
demonstrate continued eligibility for the designation by submitting
Form I-956G (formerly Form I-924A), Annual Certification of Regional
Center on an annual basis or as otherwise requested. See 8 CFR
204.6(m)(6)(i)(B).
The application process would require the same information from
applicants that is currently required. As shown in Table 34, during the
5-year period from FY 2016 through FY 2020, USCIS received a total of
951 annual Form I-956 (formerly Form I-924) regional centers
applications and 4,091

[[Page 558]]

Form I-956G (formerly Form I-924A) annual statements, with annual
averages 190 and 818 respectively.
[GRAPHIC] [TIFF OMITTED] TP04JA23.100

Regional centers are difficult to assess because there is a lack of
official USCIS data on employment, income, and industry classification
for these entities. It is difficult to determine the small entity
status of regional centers without such data. Such a determination is
also difficult because regional centers can be structured in a variety
of different ways, and can involve multiple business and financial
activities, some of which may play a direct or indirect role in linking
investor funds to NCEs and job-creating projects or entities. Regional
centers also pose a challenge for analysis as their structure is often
complex and can involve many related business and financial activities
not directly involved with EB-5 activities. Regional centers can be
made up of several layers of business and financial activities that
focus on matching foreign investor funds to development projects to
capture above-market return differentials.
While DHS attempted to treat regional centers similar to the other
entities in this analysis, DHS was not able to identify most of the
entities in any of the public or private online databases. Furthermore,
while regional centers are an integral component of the EB-5 program,
DHS does not collect data on the administrative fees the regional
centers charge to the foreign investors who are investing in one of
their projects. DHS did not focus on the bundled capital investment
amounts (either a discounted $500,000 if the investment is in a TEA
project, which includes certain rural areas and areas of high
unemployment, or $1 million for a non-TEA project per investor, in a
U.S. business that will create or preserve at least 10 full-time jobs
in the United States for qualifying employees) \360\ that get invested
into an NCE. Such investment amounts are not necessarily indicative of
whether the regional center is appropriately characterized as a small
entity for purposes of the RFA. Due to the lack of regional center
revenue data, DHS assumes regional centers collect revenue primarily
through the administrative fees charged to investors.
---------------------------------------------------------------------------

\360\ U.S. Department of Homeland Security, USCIS--EB-5
Immigrant Investor Program Modernization, Proposed rule. See 84 FR
35750 (July 24, 2019). Available at https://www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/2019-15000.pdf. This amount by investor is
determined between a designated Target Employment Area and non-
Target Employment Area.
---------------------------------------------------------------------------

DHS did consider the information provided by regional center
applicants as part of the Forms I-956 (formerly Form I-924) and I-956G
(formerly Form I-924A); however, it does not include adequate data to
allow DHS to reliably identify the small entity status of individual
applicants. Although regional center applicants typically report the
NAICS codes associated with the sectors they plan to direct investor
funds toward, these codes do not necessarily apply to the regional
centers themselves. In addition, information provided to DHS concerning
regional centers generally does not include regional center revenues or
employment.
DHS was able to obtain some information under some specific
assumptions in an attempt to analyze the small entity status of
regional centers. In the DHS proposed rule ``EB-5 Immigrant Investor
Program Modernization,'' DHS analyzed estimated administrative fees and
revenue amounts for regional centers.\361\ DHS found both the mean and
median for administrative fees to be $50,000 and the median revenue
amount to be

[[Page 559]]

$1,250,000 over the period FY 2017 through FY 2020. DHS does not know
the extent to which these regional centers can pass along the fee
increases to the individual investors. Passing along the costs from
this proposed rule can reduce or eliminate the economic impacts to the
regional centers. While DHS cannot definitively claim there is no
significant economic impact to these small entities based on existing
information, DHS would assume existing regional centers with revenues
equal to or less than $447,000 per year (some of which DHS assumes
would be derived from administrative fees charged to individual
investors) could experience a significant economic impact if DHS
assumes a fee increase that represents 1 percent of annual revenue is a
``significant'' economic burden under the RFA.\362\
---------------------------------------------------------------------------

\361\ Id.
\362\ Calculation: 1 percent of $447,000 = $4,470 (the new fee
for Form I-956G; formerly Form I-924A).
---------------------------------------------------------------------------

DHS welcomes comments from the public on the impacts to small
entities of the proposed fee increases to Form I-956G (formerly Form I-
924A) and requests information from the public on data sources on the
average revenues collected by regional centers in the form of
administrative fees and the extent to which regional centers may pass
along the fee increases to the individual investors.
d. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
preparation of the report or record.
The proposed rule does not directly impose any new or additional
``reporting'' or ``recordkeeping'' requirements on filers of Form I-
129, I-140, I-910, I-360, G-1041, G-1041A, I-956 (formerly Form I-924),
or I-956G (formerly I-924A). The proposed rule does not require any new
professional skills for reporting.
e. An identification, to the extent practical, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
DHS is unaware of any duplicative, overlapping, or conflicting
Federal rules, but invites any comment and information regarding any
such rules.
f. Description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities, including alternatives considered as:
(1) Establishment of differing compliance or reporting requirements
or timetables that take into account the resources available to small
entities;
(2) Clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities;
(3) Use of performance rather than design standards; and
(4) Any exemption from coverage of the rule, or any part thereof,
for such small entities.
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including services provided without charge to
asylum applicants and certain other immigrant applicants. In addition,
DHS must fund the costs of providing services without charge by using a
portion of the filing fees that are collected for other immigration
benefits. Without an adjustment in fees, USCIS would not be able to
sustain the current level of service for immigration and naturalization
benefits. While most immigration benefit fees are paid by individuals,
as described above, some also are paid by small entities. USCIS seeks
to minimize the impact on all parties, and in particular small
entities. An alternative to the increased economic burden of the
proposed rule is to maintain fees at their current level for small
entities. The strength of this alternative is that it assures no
additional fee burden is placed on small entities; however, this
alternative also would cause negative impacts to small entities.
Without the fee adjustments proposed in this proposed rule,
significant operational changes would be necessary in order for USCIS
to provide current immigration and naturalization benefits to the
public. These changes would include reductions in Federal and contract
staff, infrastructure spending on information technology and
facilities, travel, and training. Depending on the actual level of
workload received, these operational changes could result in longer
application processing times, a degradation in service to applicants
and petitioners, and reduced efficiency over time. DHS is therefore not
proposing to exempt small entities from the fee increases outlined in
this proposed rule.
g. Questions for Comment to Assist Regulatory Flexibility Analysis.
DHS seeks comment on the numbers of small entities that
may be impacted by this proposed rulemaking.
DHS seeks comment on any or all of the provisions in the
proposed rule with regard to the economic impact of this proposed rule,
paying specific attention to the effect of the rule on small entities
in light of the above analysis, as well as the full small entity
analysis on regulations.gov.
DHS seeks comment on any significant alternatives DHS
should consider in lieu of the changes proposed by this proposed rule.
DHS seeks ways in which the rule could be modified to
reduce burdens for small entities consistent with the Immigration and
Nationality Act and the Chief Financial Officers Act requirements.
Please identify all relevant Federal, State, or local
rules that may duplicate, overlap, or conflict with the proposed rule.

C. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector.\363\
---------------------------------------------------------------------------

\363\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

While this proposed rule is expected to exceed the $100 million in
1995 expenditure in any one year when adjusted for inflation ($178
million in 2021 dollars based on the Consumer Price Index for All Urban
Consumers (CPI-U)),\364\ DHS does not believe this proposed rule would
impose any unfunded Federal mandates on State, local, and Tribal
governments, in the aggregate, or on the private sector. It does not
contain a Federal mandate as

[[Page 560]]

the term is defined under UMRA.\365\ The requirements of Title II of
UMRA, therefore, do not apply, and DHS has not prepared a written
statement.
---------------------------------------------------------------------------

\364\ See U.S. Department of Labor, BLS, ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. city average, all
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf (last visited Jan.
13, 2022). Calculation of inflation: (1) Calculate the average
monthly CPI-U for the reference year (1995) and the current year
(2021); (2) Subtract reference year CPI-U from current year CPI-U;
(3) Divide the difference of the reference year CPI-U and current
year CPI-U by the reference year CPI-U; (4) Multiply by 100 =
[(Average monthly CPI-U for 2021-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)]*100=[(270.970-152.383)/
152.383]*100=(118.587/152.383)*100=0.77821673*100=77.82 percent=78
percent (rounded). Calculation of inflation-adjusted value: $100
million in 1995 dollars*1.78=$178 million in 2021 dollars.
\365\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)

The Congressional Review Act (CRA) was included as part of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) by
section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et seq.
This proposed rule, if finalized, would be a major rule as defined by
section 804 of SBREFA because the aggregate amount of additional fees
to be collected will exceed $100 million. See 5 U.S.C. 804(2)(A)
(providing that a rule is a major rule if it is likely to result in an
annual effect on the economy of $100 million or more). Accordingly,
absent exceptional circumstances, this proposed rule if enacted as a
final rule would be effective at least 60 days after the date on which
Congress receives a report submitted by DHS as required by 5 U.S.C.
801(a)(1).

E. Executive Order 13132 (Federalism)

This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This proposed rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This proposed rule was written to provide
a clear legal standard for affected conduct and was carefully reviewed
to eliminate drafting errors and ambiguities to minimize litigation and
undue burden on the Federal court system. DHS has determined that this
proposed rule meets the applicable standards provided in section 3(a)
and 3(b)(2) of E.O. 12988.

G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

This proposed rule would not have ``Tribal implications'' under
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have substantial direct effects on one
or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Accordingly, E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, requires no further agency action or analysis.

H. Paperwork Reduction Act

Under the PRA of 1995, 44 U.S.C. 3501-12, DHS must submit to OMB,
for review and approval, any reporting requirements inherent in a rule,
unless they are exempt. In accordance with the PRA, the information
collection notice is published in the Federal Register to obtain
comments regarding the proposed edits to the information collection
instruments. Please see the accompanying PRA documentation for the full
analysis. The Information Collection table below shows the summary of
forms that are part of this rulemaking.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP04JA23.101

[[Page 561]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.102

[[Page 562]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.103

[[Page 563]]

[GRAPHIC] [TIFF OMITTED] TP04JA23.104

BILLING CODE 9111-97-C
USCIS is consolidating all information related to Form fees, fee
exemptions, and how to submit fee payments into Form G-1055, Fee
Schedule. Most fee-related language, including language from sections
What is the Filing Fee, How To Check If the Fees Are Correct, Fee
Waiver, and Premium Processing content is being removed from individual
Form Instructions documents, which results in a per-response hour
burden reduction for many USCIS information collections and an overall
total hour burden reduction for the USCIS information collection
inventory. In accordance with the PRA, the information collection
notice is published in the Federal Register and will include the
proposed edits to the information collection instruments.
This rulemaking will also require non-substantive edits to some
USCIS information collections, which are indicated in Table 35 as ``No
material/non-substantive change to a currently approved collection'' in
the Type of PRA Action column. The USCIS Form I-854A, Inter-Agency
Alien Witness and Informant Record, edits include updating general
instructions language. As stated previously in this preamble, DHS has
recently created Forms I-526, Immigrant Petition by Alien Entrepreneur,
and Form I-526E, Immigrant Petition by Regional Center Investor, Form
I-956, Application for Regional Center Designation, Form I-956F,
Application for Approval of Investment in a Commercial Enterprise, Form
I-956G, Regional Center Annual Statement, Form I-956H, Bona Fides of
Persons Involved with Regional Center Program, and Form I-956K
Registration for Direct and Third-Party Promoters, to implement the EB-
5 Reform and Integrity Act of 2022. USCIS continues to use Form I-829,
Petition by Investor to Remove Conditions on Permanent Resident Status,
to adjudicate requests from investors under the previous statute and
regulations, and as authorized by the EB-5 Reform and Integrity Act of
2022. Those forms are not subject to the Paperwork Reduction Act. See
Public Law 117-103, div. BB, sec. 106(d) (providing that for a 1-year
period the requirements of the PRA do not apply to any collection of
information required to implement the EB-5 Reform and Integrity Act of
2022). Thus, those forms are not discussed in this section although new
fees are proposed for them in this rule. If the applicable forms are
approved by OMB before the final rule is published, the final rule will
be updated accordingly.
USCIS Form G-1041; G1041A
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

[[Page 564]]

collection notice is published in the Federal Register to obtain
comments regarding the proposed edits to the information collection
instrument.
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 1615-0096 in the body of the letter and
the agency name. 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, for example, 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: Genealogy Index Search Request;
Genealogy Records Request (For each microfilm or hard copy file).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: G-1041; G-1041A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. The
Genealogy Program is necessary to provide a more timely response to
requests for genealogical and historical records. Form G-1041 is
provided as a convenient means for persons to provide data necessary to
perform a search of historical agency indices. Form G-1041A provides a
convenient means for persons to identify a particular record desired
under the Genealogy Program. The forms provide rapid identification of
such requests and ensures expeditious handling. Persons such as
researchers, historians, and social scientists seeking ancestry
information for genealogical, family history and their location
purposes will use Forms G-1041 and G-1041A.
(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 Form G-1041
is 3,847 and the estimated hour burden per response is 0.317 hours; the
estimated total number of respondents for Form G-1041A is 2,920 and the
estimated hour burden per response is 0.317 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 2,146 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $25,376.
USCIS Form G-1566
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 information collection instrument.
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 1615-0156 in the body of the letter and
the agency name. 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, for example, 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: Request for a Certificate of Non-
Existence.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: G-1566; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
will use the information collected on Form G-1566 to determine whether
any immigration records about the subject of record listed on the form
exist. If no records about the subject of record exist, USCIS will
provide a Certificate of Nonexistence. If USCIS finds records related
to the subject of record, a Certificate of Non-Existence will not be
issued, but the requestor will be notified that records were found.
(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 G-1566 is
2,000 and the estimated hour burden per response is 0.5 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 1,000 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $122,000.
USCIS Form I-102
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 information collection instrument.
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 1615-0079 in the body of the letter and
the agency name. 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

[[Page 565]]

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, for example, 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: Application for Replacement/
Initial Nonimmigrant Arrival/Departure Document.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-102; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households.
Nonimmigrants temporarily residing in the United States can use this
form to request a replacement of a lost, stolen, or mutilated Form I-
94, Arrival/Departure Record, or to request a new Arrival/Departure
Record, if one was not issued when the nonimmigrant was last admitted
but the nonimmigrant is now in need of such a record. USCIS uses the
information provided by the requester to verify eligibility, as well as
his or her status, process the request, and issue a new or replacement
Arrival/Departure Record. If the application is approved, USCIS will
issue a Form I-94, Arrival/Departure Record.
(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 Form I-102
is 4,100 and the estimated hour burden per response is 0.567 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 2,325 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,182,440.
USCIS Form I-129
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 information collection instrument.
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 1615-0009 in the body of the letter and
the agency name. 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, for example, 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: Petition for a Nonimmigrant
Worker.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine the eligibility of a business to petition for a nonimmigrant
worker to come to the United States temporarily to perform services or
labor, or to receive training, as an H-1B, H-2A, H-2B, H-3, L-1, O-1,
O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, or R-1 nonimmigrant worker.
Petitioners may also use this form to request an extension of stay in
or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above
classifications for an alien.
(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 Form I-129
is 572,606 and the estimated hour burden per response is 2.157 hours;
the estimated total number of respondents for the information
collection E-1/E-2 Classification Supplement is 12,050 and the
estimated hour burden per response is 0.67; the estimated total number
of respondents for the information collection Trade Agreement
Supplement to Form I-129 is 12,945 and the estimated hour burden per
response is 0.67; the estimated total number of respondents for the
information collection H Classification Supplement to Form I-129 is
471,983 and the estimated hour burden per response is 2; the estimated
total number of respondents for the information collection H-1B and H-
1B1 Data Collection and Filing Fee Exemption Supplement is 398,936 and
the estimated hour burden per response is 1; the estimated total number
of respondents for the information collection L Classification
Supplement to Form I-129 is 40,358 and the estimated hour burden per
response is 1.34; the estimated total number of respondents for the
information collections O and P Classifications Supplement to Form I-
129 is 28,434 and the estimated hour burden per response is 1; the
estimated total number of respondents for the information collection Q-
1 Classification Supplement to Form I-129 is 54 and the estimated hour
burden per response is 0.34; the estimated total number of respondents
for the information collection R-1 Classification Supplement to Form I-
129 is 6,782 and the estimated hour burden per response is 2.34.
(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 2,693,162 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $294,892,090.
USCIS Form I-129CW; I-129CWR
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 information collection instrument.
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 1615-0079 in the body of the letter and
the agency

[[Page 566]]

name. 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, for example, 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: Petition for a CNMI-Only
Nonimmigrant Transitional Worker; Semiannual Report for CW-1 Workers.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129CW; I-129CWR; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business and other for-profit. USCIS
uses the data collected on Form I-129CW to determine eligibility for
the requested immigration benefits. An employer uses Form I-129CW to
petition USCIS for a noncitizen to temporarily enter as a nonimmigrant
into the CNMI to perform services or labor as a CW-1 worker. An
employer also uses Form I-129CW to request an extension of stay or
change of status on behalf of the noncitizen worker. Form I-129CW
serves the purpose of standardizing requests for these benefits and
ensuring that the basic information required to determine eligibility
is provided by the petitioners.
Form I-129CWR, Semiannual Report for CW-1 Employers, is used by
employers to comply with the reporting requirements imposed by the
Workforce Act. Form I-129CWR captures data USCIS requires to help
verify the continuing employment and payment of the CW-1 worker. DHS
may provide such semiannual reports to other Federal partners,
including the U.S. Department of Labor (DOL) for investigative or other
use as DOL may deem appropriate. Congress expressly provided for these
semiannual reports to be shared with DOL. 48 U.S.C. 1806(d)(3)(D)(ii).
(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 Form I-129CW
is 5,975 and the estimated hour burden per response is 3.317 hours; the
estimated total number of respondents for the information collection
Form I-129CWR is 5,975 and the estimated hour burden per response is
2.5 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 34,757 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $3,809,063.
USCIS Form I-129F
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 information collection instrument.
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 1615-0001 in the body of the letter and
the agency name. 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, for example, 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: Petition for Alien
fiancé(e).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129F; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and Households. Form I-
129F must be filed with U.S. Citizenship and Immigration Services
(USCIS) by a citizen of the United States in order to petition for an
alien spouse, fiancé(e), or child.
(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 Form I-129F
is 47,700 and the estimated hour burden per response is 3.067 hours;
the estimated total number of respondents for biometrics processing is
47,700 and the estimated hour burden per response is 1.17 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 202,105 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $5,412,004.
USCIS Form I-129S
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 information collection instrument.
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 1615-0010 in the body of the letter and
the agency name. 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;

[[Page 567]]

(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, for example, 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: Nonimmigrant Petition Based on
Blanket L Petition.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129S; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit.
Employers seeking to classify employees outside the United States as
executives, managers, or specialized knowledge professionals, as
nonimmigrant intra-company transferees pursuant to a previously
approved blanket petition under sections 214(c)(2) and 101(a)(15)(L) of
the Act, may file this form. USCIS uses the information provided
through this form to assess whether the employee meets the requirements
for L-1 classification under blanket L petition approval. Submitting
this information to USCIS is voluntary. USCIS may provide the
information provided through this form to other Federal, State, local,
and foreign government agencies and authorized organizations, and may
also be made available, as appropriate, for law enforcement purposes or
in the interest of national security.
(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 Form I-129S
is 75,000 and the estimated hour burden per response is 2.817 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 211,275 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $36,750,000.
USCIS Form I-130; I-130A
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 information collection instrument.
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 1615-0012 in the body of the letter and
the agency name. 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, for example, 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: Petition for Alien Relative;
Supplemental Information for Spouse Beneficiary.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-130; I-130A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
130 allows U.S. citizens or lawful permanent residents of the United
States to petition on behalf of certain alien relatives who wish to
immigrate to the United States. Form I-130A allows for the collection
of additional information for spouses of the petitioners necessary to
facilitate a decision.
(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 Form I-130
paper filing is 437,500 and the estimated hour burden per response is
1.817 hours; the estimated total number of respondents for the
information collection Form I-130A is 40,775 and the estimated hour
burden per response is 0.833 hours; and the estimated total number of
respondents for the information collection Form I-130 online filing is
437,500 and the estimated hour burden per response is 1.5 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 1,485,154 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $350,000,000.
USCIS Form I-131
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 information collection instrument.
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 1615-0013 in the body of the letter and
the agency name. 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, for example, permitting
electronic submission of responses.
Overview of information collection:

[[Page 568]]

(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Travel Document,
Form I-131; Extension, Without Change, of a Currently Approved
Collection.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-131; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Certain
noncitizens, principally permanent or conditional residents, refugees
or asylees, applicants for adjustment of status, noncitizens in TPS,
DACA recipients, and noncitizens abroad seeking humanitarian parole who
need to apply for a travel document to lawfully enter or re-enter the
United States. Lawful permanent residents may now file requests for
travel permits (transportation letter or boarding foil).
(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 I-131 is
483,920 and the estimated hour burden per response is 1.717 hours; the
estimated total number of respondents for biometrics processing is
84,000 and the estimated hour burden per response is 1.17 hours, the
estimated total number of respondents for passport-style photos is
380,000 and the estimated hour burden per response is 0.5 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 1,119,171 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $146,072,480.
USCIS Form I-131A
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 information collection instrument.
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 1615-0135 in the body of the letter and
the agency name. 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, for example, 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: Application for Carrier
Documentation.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-131A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the information provided on Form I-131A to verify the status of
permanent or conditional residents and determine whether the applicant
is eligible for the requested travel document.
(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 Form I-131A
is 5,100 and the estimated hour burden per response is 0.837 hours;
biometrics processing is 5,100 and the estimated hour burden per
response is 1.17 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 10,236 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $919,275.
USCIS Form I-140
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 information collection instrument.
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 1615-0015 in the body of the letter and
the agency name. 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, for example, 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: Immigrant Petition for Alien
Workers.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-140; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. The information collected on this form will be
used by USCIS to determine eligibility for the requested immigration
benefits under section 203(b)(1), 203(b)(2), or 203(b)(3) of the
Immigration and Nationality Act.
(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 Form I-140
is 143,000 and the estimated hour burden per response is 0.897 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 128,223 hours.

[[Page 569]]

(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $62,598,250.
USCIS Form I-191
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 information collection instrument.
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 1615-0016 in the body of the letter and
the agency name. 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, for example, 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: Application for Relief Under
Former Section 212(c) of the Immigration and Nationality Act.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-191; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS and
EOIR use the information on the form to properly assess and determine
whether the applicant is eligible for a waiver under former section
212(c) of INA.
(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 Form I-191
is 116 and the estimated hour burden per response is 1.567 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 182 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $59,740.
USCIS Form I-192
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 information collection instrument.
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 1615-0017 in the body of the letter and
the agency name. 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, for example, 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: Application for Advance
Permission to Enter as Nonimmigrant (Pursuant to Section
212(d)(3)(A)(ii) of the INA).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-192; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. The data
collected will be used by CBP and USCIS to determine whether the
applicant is eligible to enter the United States temporarily under the
provisions of section 212(d)(3), 212(d)(13), and 212(d)(14) of the INA.
The respondents for this information collection are certain
inadmissible nonimmigrant aliens who wish to apply for permission to
enter the United States and applicants for T nonimmigrant status or
petitioners for U nonimmigrant status. CBP has developed an electronic
filing system, called Electronic Secured Adjudication Forms Environment
(e-SAFE), through which Form I-192 can be submitted when filed with
CBP.
(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 Form I-192
is 61,050 and the estimated hour burden per response is 1.317 hours;
the estimated total number of respondents for the information
collection e-SAFE is 7,000 and the estimated hour burden per response
is 1.25 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 89,153 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $17,522,875.
USCIS Form I-212
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 information collection instrument.
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 1615-0018 in the body of the letter and
the agency name. 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

[[Page 570]]

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, for example, 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: Application for Permission to
Reapply for Admission into the United States After Deportation or
Removal.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-212; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the data collected on Form I-212 to determine whether an alien is
eligible for and should be granted the benefit of consent to reapply
for admission into the United States. This form standardizes requests
for consent to reapply and its data collection requirements ensure
that, when filing the application, the alien provides the basic
information that is required to assess eligibility for consent to
reapply.
(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 Form I-212
paper filing is 7,000 and the estimated hour burden per response is
1.817 hours. The estimated total number of respondents for the
information collection I-212 (online filing via CBP e-SAFE) is 1,200
and the estimated hour burden per response is 1.817 hours. The
estimated total number of respondents for the information collection
biometric submission is 350 and the estimated hour burden per response
is 1.17 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 15,309 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $370,650.
USCIS Form I-290B
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 information collection instrument.
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 1615-0095 in the body of the letter and
the agency name. 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, for example, 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: Notice of Appeal or Motion.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-290B; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
290B standardizes requests for appeals and motions and ensures that the
basic information required to adjudicate appeals and motions is
provided by applicants and petitioners, or their attorneys or
representatives. USCIS uses the data collected on Form I-290B to
determine whether an applicant or petitioner is eligible to file an
appeal or motion, whether the requirements of an appeal or motion have
been met, and whether the applicant or petitioner is eligible for the
requested immigration benefit. Form I-290B can also be filed with ICE
by schools appealing decisions on Form I-17 filings for certification
to ICE's Student and Exchange Visitor Program (SEVP).
(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 Form I-290B
is 28,000 and the estimated hour burden per response is 1.317 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 36,876 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $8,652,000.
USCIS Form I-360
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 information collection instrument.
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 1615-0020 in the body of the letter and
the agency name. 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, for example, permitting
electronic submission of responses.
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.

[[Page 571]]

(2) Title of the Form/Collection: Petition for Amerasian,
Widow(er), or Special Immigrant.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-360; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The Form
I-360 may be used by an Amerasian; a widow or widower; a battered or
abused spouse or child of a U.S. citizen or lawful permanent resident;
a battered or abused parent of a U.S. citizen son or daughter; or a
special immigrant (religious worker, Panama Canal company employee,
Canal Zone government employee, U.S. Government employee in the Canal
Zone; physician, international organization employee or family member,
juvenile court dependent; armed forces member; Afghanistan or Iraq
national who supported the U.S. Armed Forces as a translator; Iraq
national who worked for the or on behalf of the U.S. Government in
Iraq; or Afghan national who worked for or on behalf of the U.S.
Government or the International Security Assistance Force [ISAF] in
Afghanistan) who intend to establish their eligibility to immigrate to
the United States. The data collected on this form is reviewed by U.S.
Citizenship and Immigration Services (USCIS) to determine if the
petitioner may be qualified to obtain the benefit. The data collected
on this form will also be used to issue an employment authorization
document upon approval of the petition for battered or abused spouses,
children, and parents, if requested.
(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 Petition for
Amerasian, Widower, or Special Immigration (Form I-360): Iraqi & Afghan
Petitioners is 1,916 and the estimated hour burden per response is
2.917 hours; the estimated total number of respondents for the
information collection Petition for Amerasian, Widower, or Special
Immigration (Form I-360): Religious Workers is 2,393 and the estimated
hour burden per response is 2.167 hours; the estimated total number of
respondents for the information collection Petition for Amerasian,
Widower, or Special Immigration (Form I-360): All Others is 14,362 and
the estimated hour burden per response is 1.917 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 38,307 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $2,287,320.
USCIS Form I-485; I-485A; I-485J
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 information collection instrument.
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 1615-0023 in the body of the letter and
the agency name. 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, for example, 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: Application to Register Permanent
Residence or Adjust Status; Supplement A to Form I-485, Adjustment of
Status Under Section 245(i); Confirmation of Bona Fide Job Offer or
Request for Job Portability Under INA Section 204(j).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-485; I-485A; I-485J; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
485 is used by all applicants seeking to adjust status to lawful
permanent resident under INA section 245(a). Supplement A to Form I-485
is used by a subset of applicants seeking to adjust status under INA
section 245(i). Supplement J is used by applicants whose adjustment of
status is based on an approved employment-based immigrant visa petition
that requires a job offer.
(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 Form I-485
is 690,837 and the estimated hour burden per response is 7.087 hours;
the estimated total number of respondents for the information
collection Form I-485A is 29,213 and the estimated hour burden per
response is 1.067 hours; the estimated total number of respondents for
the information collection Form I-485J is 37,358 and the estimated hour
burden per response is 0.917; the estimated total number of respondents
for the information collection biometrics submission is 690,837 and the
estimated hour burden per response is 1.17.
(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 5,700,585 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,093,101,980.
USCIS Form I-539; I-539A
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 information collection instrument.
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 1615-0003 in the body of the letter and
the agency name. 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

[[Page 572]]

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, for example, 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: Application to Extend/Change
Nonimmigrant Status; Supplement A to Form I-539A.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-539; I-539A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. This
form is used by nonimmigrants to apply for an extension of stay, for a
change to another nonimmigrant classification, or to obtain V
nonimmigrant 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 Form I-539
(paper) is 174,289 and the estimated hour burden per response is 1.817
hours, the estimated total number of respondents for the information
collection I-539 (electronic) is 74,696 and the estimated hour burden
per response is 1.083 hours; and the estimated total number of
respondents for the information collection I-539A is 54,375 and the
estimated hour burden per response is 0.5 hours; biometrics processing
is 186,738 total respondents requiring an estimated 1.17 hours per
response.
(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 643,250 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $42,700,928.
USCIS Form I-566
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 information collection instrument.
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 1615-0027 in the body of the letter and
the agency name. 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, for example, 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: Interagency Record of Request--A,
G or NATO Dependent Employment Authorization or Change/Adjustment to/
from A, G or NATO Status.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-566; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The data
on this form is used by Department of State (DOS) to certify to USCIS
eligibility of dependents of A or G principals requesting employment
authorization, as well as for NATO/Headquarters, Supreme Allied
Commander Transformation (NATO/HQ SACT) to certify to USCIS similar
eligibility for dependents of NATO principals. DOS also uses this form
to certify to USCIS that certain A, G, or NATO nonimmigrants may change
their status to another nonimmigrant status. USCIS, on the other hand,
uses data on this form in the adjudication of change or adjustment of
status applications from aliens in A, G, or NATO classifications and
following any such adjudication informs DOS of the results by use of
this form. The information provided on this form continues to ensure
effective interagency communication among the three governmental
departments--the Department of Homeland Security (DHS), DOS, and the
Department of Defense (DOD)--as well as with NATO/HQ SACT. These
departments and organizations utilize this form to facilitate the
uniform collection and review of information necessary to determine an
alien's eligibility for the requested immigration benefit. This form
also ensures that the information collected is communicated among DHS,
DOS, DOD, and NATO/HQ SACT regarding each other's findings or actions.
(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 Form I-566
is 5,800 and the estimated hour burden per response is 1.337 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 7,755 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $710,500.
USCIS Form I-600; I-600A; Supplement 1; Supplement 2; Supplement 3
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 information collection instrument.
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 1615-0028 in the body of the letter and
the agency name. 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;

[[Page 573]]

(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, for example, 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: Petition to Classify Orphan as an
Immediate Relative; Application for Advance Processing of an Orphan
Petition; Supplement 1, Listing of an Adult Member of the Household;
Supplement 2, Consent to Disclose Information; and Supplement 3,
Request for Action on Approved Form I-600A/I-600.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: Form I-600, Form I-600A, Form I-600A/I-600
Supplement 1, Form I-600A/I-600 Supplement 2, Form I-600A/I-600
Supplement 3; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. A U.S.
citizen adoptive parent may file a petition to classify an orphan as an
immediate relative through Form I-600 under section 101(b)(1)(F) of the
INA. A U.S. citizen prospective adoptive parent may file Form I-600A in
advance of the Form I-600 filing and USCIS will determine the
prospective adoptive parent's eligibility to file Form I-600A and their
suitability and eligibility to properly parent an orphan. If there are
other adult members of the U.S. citizen prospective/adoptive parent's
household, as defined at 8 CFR 204.301, the prospective/adoptive parent
must include Form I-600A/I-600 Supplement 1 when filing both Form I-
600A and Form I-600. A Form I-600A/I-600 Supplement 2, Consent to
Disclose Information, is an optional form that a U.S. citizen
prospective/adoptive parent may file to authorize USCIS to disclose
case-related information that would otherwise be protected under the
Privacy Act, 5 U.S.C. 552a, to adoption service providers or other
individuals. Form I-600A/I-600 authorized disclosures will assist USCIS
in the adjudication of Forms I-600A and I-600. USCIS has created a new
Form I-600A/I-600 Supplement 3, Request for Action on Approved Form I-
600A/I-600, for this information collection. Form I-600A/I-600
Supplement 3 is a form that prospective/adoptive parents must use if
they need to request action such as an extended suitability
determination; updated suitability determination based upon a
significant change in their circumstances or change in the number or
characteristics of the children they intend to adopt or a change in
their intended country of adoption; or a request for a duplicate notice
of their approved Form I-600A suitability determination.
(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 Form I-600
is 1,200 and the estimated hour burden per response is 0.817 hours; the
estimated total number of respondents for the information collection
Form I-600A is 2,000 and the estimated hour burden per response is
0.817 hours; the estimated total number of respondents for the
information collection Form I-600/I-600A Supplement 1 is 301 and the
estimated hour burden per response is 1 hour; the estimated total
number of respondents for the information collection Form I-600/I-600A
Supplement 2 is 1,260 and the estimated hour burden per response is
0.25 hours; the estimated total number of respondents for the
information collection Form I-600/I-600A Supplement 3 is 1,286 and the
estimated hour burden per response is 1 hours; the estimated total
number of respondents for the Home Study information collection is
2,500 and the estimated hour burden per response is 25 hours; the
estimated total number of respondents for the Biometrics information
collection is 2,520 and the estimated hour burden per response is 1.17
hours; the estimated total number of respondents for the Biometrics--
DNA information collection is 2 and the estimated hour burden per
response is 6 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 69,977 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $7,759,232.
USCIS Form I-601
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 information collection instrument.
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 1615-0029 in the body of the letter and
the agency name. 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, for example, 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: Application for Waiver of Grounds
of Inadmissibility.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-601; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Form I-
601 is necessary for USCIS to determine whether the applicant is
eligible for a waiver of inadmissibility under section 212 of the Act.
Furthermore, this information collection is used by individuals who are
seeking Temporary Protected Status (TPS).
(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 Form I-601
is 17,000 and the estimated hour burden per response is 1.567 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 26,639 hours.

[[Page 574]]

(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $6,311,250.
USCIS Form I-601A
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 information collection instrument.
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 1615-0123 in the body of the letter and
the agency name. 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, for example, 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: Application for Provisional
Unlawful Presence Waiver.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-601A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Section
212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA
or the Act) provides for the inadmissibility of certain individuals who
have accrued unlawful presence in the United States. There is also a
waiver provision incorporated into section 212(a)(9)(B)(v) of the Act,
which allows the Secretary of Homeland Security to exercise discretion
to waive the unlawful presence grounds of inadmissibility on a case-by-
case basis. The information collected from an applicant on an
Application for Provisional Unlawful Presence Waiver of
Inadmissibility, Form I-601A, is necessary for U.S. Citizenship and
Immigration Services (USCIS) to determine not only whether the
applicant meets the requirements to participate in the streamlined
waiver process provided by regulation, but also whether the applicant
is eligible to receive the provisional unlawful presence waiver.
(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 Form I-601A
is 63,000 and the estimated hour burden per response is 1.317 hours:
the estimated total number of respondents for the collection of
biometrics is 63,000 and the estimated hour burden per response is 1.17
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 156,681 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $3,212,390.
USCIS Form I-602
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 information collection instrument.
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 1615-0069 in the body of the letter and
the agency name. 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, for example, 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: Application by Refugee for Waiver
of Grounds of Excludability.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-602; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The data
collected on the Application by Refugee for Waiver of Inadmissibility
Grounds, Form I-602, will be used by USCIS to determine eligibility for
waivers, and to report to Congress the reasons for granting waivers.
(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 Form I-602
is 240 and the estimated hour burden per response is 7.917 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 1,900 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $30,900.
USCIS Form I-612
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 information collection instrument.
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 1615-0030 in the body of the letter and
the agency name. Comments on this information

[[Page 575]]

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, for example, 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: Application for Waiver of the
Foreign Residence Requirement (Under Section 212(e) of the INA, as
Amended).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-612; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. This
information collection is necessary and may be submitted only by an
alien who believes that compliance with foreign residence requirements
would impose exceptional hardship on his or her spouse or child who is
a citizen of the United States, or a lawful permanent resident; or that
returning to the country of his or her nationality or last permanent
residence would subject him or her to persecution on account of race,
religion, or political opinion. Certain aliens admitted to the United
States as exchange visitors are subject to the foreign residence
requirements of section 212(e) of the Immigration and Nationality Act
(the Act). Section 212(e) of the Act also provides for a waiver of the
foreign residence requirements in certain instances.
(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 Form I-612
is 7,200 and the estimated hour burden per response is 0.15 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 1,080 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $882,000.
USCIS Form I-690; Supplement A
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 information collection instrument.
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 1615-0032 in the body of the letter and
the agency name. 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, for example, 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: Application for Waiver of Grounds
of Inadmissibility; Supplement A: Applicants with a Class A
Tuberculosis Condition (As Defined by HHS Regulations).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-690; Supplement A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households.
Applicants for lawful permanent residence under INA sections 210 or
245A who are inadmissible under certain grounds of inadmissibility at
INA section 212(a) would use Form I-690 to seek a waiver of
inadmissibility. USCIS uses the information provided through Form I-690
to adjudicate waiver requests from individuals who are inadmissible to
the United States. Based upon the instructions provided, a respondent
can gather and submit the required documentation to USCIS for
consideration of an inadmissibility waiver.
(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 Form I-690
is 30 and the estimated hour burden per response is 2.817 hours; the
estimated total number of respondents for the information collection
Supplement A is 11 and the estimated hour burden per response is 2
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 107 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $4,523.
USCIS Form I-698
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 information collection instrument.
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 1615-0035 in the body of the letter and
the agency name. 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

[[Page 576]]

(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, for example, 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: Application to Adjust Status from
Temporary to Permanent Resident (Under Section 245A of the INA).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-698; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The data
collected on Form I-698 is used by USCIS to determine the eligibility
to adjust an applicant's residence status.
(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 Form I-698
is 100 and the estimated hour burden per response is 1.067 hours; the
estimated total number of respondents for biometrics processing is 100
and the estimated hour burden per response is 1.17 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 224 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $49,000.
USCIS Form I-751
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 information collection instrument.
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 1615-0038 in the body of the letter and
the agency name. 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, for example, 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: Petition to Remove Conditions on
Residence.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-751; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The
information collected on Form I-751 is used by U.S. Citizenship and
Immigration Services (USCIS) to verify the alien's status and determine
whether he or she is eligible to have the conditions on his or her
status removed. Form I-751 serves the purpose of standardizing requests
for benefits and ensuring that basic information required to assess
eligibility is provided by petitioners.
(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 Form I-751
is 153,000 and the estimated hour burden per response is 4.387 hours;
the estimated total number of respondents for the information
collection biometrics is 306,000 and the estimated hour burden per
response is 1.17 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 1,029,231 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $19,698,750.
USCIS Form I-765; I-765WS
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 information collection instrument.
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 1615-0040 in the body of the letter and
the agency name. 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, for example, 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: Application for Employment
Authorization; I-765 Worksheet.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-765; I-765WS; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses Form I-765 to collect information needed to determine if a
noncitizen is eligible for an initial EAD, a new replacement EAD, or a
subsequent EAD upon the expiration of a previous EAD under the same
eligibility category. Noncitizens in many immigration statuses are
required to possess an EAD as evidence of work authorization.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to

[[Page 577]]

respond: The estimated total number of respondents for the information
collection I-765 paper filing is 1,830,347 and the estimated hour
burden per response is 4.317 hours; the estimated total number of
respondents for the information collection I-765 online filing is
455,653 and the estimated hour burden per response is 4 hours; the
estimated total number of respondents for the information collection I-
765WS is 302,000 and the estimated hour burden per response is 0.5
hours; the estimated total number of respondents for the information
collection biometrics submission is 302,535 and the estimated hour
burden per response is 1.17 hours; the estimated total number of
respondents for the information collection passport photos is 2,286,000
and the estimated hour burden per response is 0.5 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 11,372,186 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $400,895,820.
USCIS Form I-765V
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 information collection instrument.
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 1615-0137 in the body of the letter and
the agency name. 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, for example, 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: Application for Employment
Authorization for Abused Nonimmigrant Spouse.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-765V; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. U.S.
Citizenship and Immigration Services (USCIS) will use Form I-765V,
Application for Employment Authorization for Abused Nonimmigrant
Spouse, to collect the information that is necessary to determine if
the applicant is eligible for an initial EAD or renewal EAD as a
qualifying abused nonimmigrant spouse. Aliens are required to possess
an EAD as evidence of work authorization. To be authorized for
employment, an alien must be lawfully admitted for permanent residence
or authorized to be so employed by the INA or under regulations issued
by DHS. Pursuant to statutory or regulatory authorization, certain
classes of aliens are authorized to be employed in the United States
without restrictions as to location or type of employment as a
condition of their admission or subsequent change to one of the
indicated classes. USCIS may determine the validity period assigned to
any document issued evidencing an alien's authorization to work in the
United States. USCIS also collects biometric information from EAD
applicants to verify the applicant's identity, check or update their
background information, and produce the EAD card.
(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 Form I-765V
is 350 and the estimated hour burden per response is 3.567 hours; the
estimated total number of respondents for the information collection
biometric submission is 350 and the estimated hour burden per response
is 1.17 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 1,658 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $87,500.
USCIS Form I-817
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 information collection instrument.
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 1615-0005 in the body of the letter and
the agency name. 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, for example, 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: Application for Benefits Under
the Family Unity Program Application.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-817; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The
information collected will be used to determine whether the applicant
meets the eligibility requirements for benefits under 8 CFR 236.14 and
245a.33.
(5) An estimate of the total number of respondents and the amount
of time

[[Page 578]]

estimated for an average respondent to respond: The estimated total
number of respondents for the information collection Form I-817 is
1,000 and the estimated hour burden per response is 1.817 hours; the
estimated number of respondents providing biometrics is 1,000 and the
estimated hour burden per response is 1.17 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 2,987 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $122,500.
USCIS Form I-821
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 information collection instrument.
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 1615-0043 in the body of the letter and
the agency name. 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, for example, 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: Application for Temporary
Protected Status.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-821; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Form I-
821 used by USCIS to gather information necessary to determine if an
applicant is eligible for Temporary Protected Status.
(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 Form I-821
(paper filed) is 453,600 and the estimated hour burden per response is
2.227 hours; the estimated total number of respondents for the
information collection Form I-821 (online filed) is 113,400 and the
estimated hour burden per response is 1.92 hours; the estimated total
number of respondents for the information collection Biometrics
Submission is 567,000 and the estimated hour burden per response is
1.17 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 1,891,285 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $69,457,500.
USCIS Form I-821D
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 information collection instrument.
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 1615-0124 in the body of the letter and
the agency name. 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, for example, 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: Consideration of Deferred Action
for Childhood Arrivals.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: Form I-821D; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. As part
of the administration of its programs, certain noncitizens may use this
form to request that USCIS exercise its prosecutorial discretion on a
case-by-case basis to defer action in their case.
(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 I-821D
Initial Request (paper) is 112,254 and the estimated hour burden per
response is 2.817 hours. The estimated total number of respondents for
the information collection I-821D Renewal Request (paper) is 221,167
and the estimated hour burden per response is 2.817 hours. The
estimated total number of respondents for the information collection I-
821D Renewal Request (Online) is 55,292 and the estimated hour burden
per response is 2.482 hours. The estimated total number of respondents
for the information collection I-821D Biometrics submission is 388,713
and the estimated hour burden per response is 1.17 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 1,531,259 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $33,040,605.
USCIS Form I-824
DHS and USCIS invite the general public and other Federal agencies
to comment on the impact to the proposed

[[Page 579]]

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 information collection
instrument.
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 1615-0044 in the body of the letter and
the agency name. 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, for example, 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: Application for Action on an
Approved Application.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-824; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. This
information collection is used to request a duplicate approval notice,
as well as to notify and to verify with the U.S. Consulate that a
petition has been approved or that a person has been adjusted to
permanent resident status.
(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 Form I-824
is 10,571 and the estimated hour burden per response is 0.237 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 2,505 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,361,016.
USCIS Form I-881
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 information collection instrument.
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 1615-0072 in the body of the letter and
the agency name. 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, for example, 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: Application for Suspension of
Deportation or Special Rule Cancellation of Removal (Pursuant to Sec.
203 of Pub. L. 105-100).
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-881; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The data
collected on the Form I-881 is used by Department of Homeland Security
(DHS), U.S. Citizenship and Immigration Services (USCIS) asylum
officers, Department of Justice (DOJ), EOIR immigration judges, and
Board of Immigration Appeals board members. The Form I-881 is used to
determine eligibility for suspension of deportation or special rule
cancellation of removal under Section 203 of NACARA. The form serves
the purpose of standardizing requests for the benefits and ensuring
that basic information required for assessing eligibility is provided
by the applicants.
(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 Form I-881
is 520 and the estimated hour burden per response is 11.817 hours; the
estimated total number of respondents for the information collection
Biometrics Submission is 858 and the estimated hour burden per response
is 1.17 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 7,149 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $258,505.
USCIS Form I-90
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 information collection instrument.
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 1615-0082 in the body of the letter and
the agency name. 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

[[Page 580]]

use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology, for example, 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: Application to Replace Permanent
Resident Card.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-90; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Form I-
90 is used by USCIS to determine eligibility to replace a Lawful
Permanent Resident Card.
(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 Form I-90
(paper filed) is 444,601 and the estimated hour burden per response is
1.817 hours; the estimated total number of respondents for the
information collection I-90 (electronic) is 296,400 and the estimated
hour burden per response is 1.59 hours; and the estimated total number
of respondents for the information collection biometrics is 741,001 and
the estimated hour burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with Form I-90 is 2,146,087 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $254,163,343.
USCIS Form I-907
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 information collection instrument.
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 1615-0048 in the body of the letter and
the agency name. 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, for example, 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: Request for Premium Processing
Service.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-907; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. USCIS
uses the data collected through this form to process a request for
premium processing. The form serves the purpose of standardizing
requests for premium processing and will ensure that basic information
required to assess eligibility is provided by the employers/
petitioners.
(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 Form I-907
is 815,773 and the estimated hour burden per response is 0.397 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 323,862 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $202,923,534.
USCIS Form I-910
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 information collection instrument.
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 1615-0114 in the body of the letter and
the agency name. 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, for example, 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: Application for Civil Surgeon
Designation.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-910; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Businesses or nonprofits. This
information collection is required to determine whether a physician
meets the statutory and regulatory requirements for civil surgeon
designation. For example, all documents are reviewed to determine
whether the physician has a currently valid medical license and whether
the physician has had any disciplinary action taken against him or her
by the medical licensing authority of the U.S. state(s) or U.S.
territories in which he or she practices. If the Application for Civil
Surgeon Designation (Form I-910) is approved, the physician is included
in USCIS's public Civil Surgeon Locator and is authorized to complete
Form I-

[[Page 581]]

693 (OMB Control Number 1615-0033) for an applicant's adjustment of
status.
(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 I-910 is 470
and the estimated hour burden per response is 1.817 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 854 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $24,205.
USCIS Form I-912
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 information collection instrument.
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 1615-0116 in the body of the letter and
the agency name. 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, for example, 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: Application for Fee Waiver.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-912; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the data collected on this form to verify that the applicant is
unable to pay for the immigration benefit being requested. USCIS will
consider waiving a fee for an application or petition when the
applicant or petitioner demonstrates that they are unable to pay the
fee. Form I-912 standardizes the collection and analysis of statements
and supporting documentation provided by the applicant with the fee
waiver request. Form I-912 also streamlines and expedites USCIS'
review, approval, or denial of the fee waiver request by clearly laying
out the most salient data and evidence necessary for the determination
of inability to pay. Officers evaluate all factors, circumstances, and
evidence supplied in support of a fee waiver request when making a
final determination. Each case is unique and is considered on its own
merits. If the fee waiver is granted, the application will be
processed. If the fee waiver is not granted, USCIS will notify the
applicant and instruct them to file a new application with the
appropriate fee.
(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 Form I-912
is 602,400 and the estimated hour burden per response is 1.17. The
estimated total number of respondents for the information collection 8
CFR 103.7(d) Director's Exception Request is 128 and the estimated hour
burden per response is 1.17.
(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 704,958 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $2,259,480.
USCIS Form I-914; I-914A; I-914B
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 information collection instrument.
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 1615-0099 in the body of the letter and
the agency name. 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, for example, 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: Application for T nonimmigrant
status; Supplement A, Application for Family Member of T-1 Recipient;
Supplement B, Declaration of Law Enforcement Officer for Victim of
Trafficking in Persons.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-914; I-914A; I-914B; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households; Federal
Government; State, local or Tribal Government. The information on all
three parts of the form will be used to determine whether applicants
meet the eligibility requirements for benefits. This application
incorporates information pertinent to eligibility under the Victims of
Trafficking and Violence Protection Act (VTVPA), Public Law 106-386,
and a request for employment authorization.
(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 Form I-914
is 1,310 and the estimated hour burden per response is 2.63 hours; the
estimated total number of respondents for the information

[[Page 582]]

collection Form I-914A is 1,120 and the estimated hour burden per
response is 1.083 hour; the estimated total number of respondents for
the information collection Form I-914B Law Enforcement Officer
completion activity is 459 and the estimated hour burden per response
is 3.58 hour; the estimated total number of respondents for the
information collection Form I-914B Contact by Respondent to Law
Enforcement is 459 and the estimated hour burden per response is 0.25
hour; the estimated total number of respondents for the information
collection biometrics submission is 2,430 and the estimated hour burden
per response is 1.17 hour.
(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 9,259 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.
USCIS Form I-918; I-918A; I-918B
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 information collection instrument.
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 1615-0104 in the body of the letter and
the agency name. 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, for example, 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: Application for U Nonimmigrant
Status; Supplement A, Petition for Qualifying Family Member of a U-1
Recipient; Supplement B, U Nonimmigrant Status Certification.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-918; I-918A; I-918B; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households; Federal
Government; or State, local or Tribal Government. This petition permits
victims of certain qualifying criminal activity and their immediate
family members to apply for temporary nonimmigrant classification. This
nonimmigrant classification provides temporary immigration benefits,
potentially leading to permanent resident status, to certain victims of
criminal activity who: suffered substantial mental or physical abuse as
a result of having been a victim of criminal activity; have information
regarding the criminal activity; and assist Government officials in
investigating and prosecuting such criminal activity.
(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 I-918 is
29,400 and the estimated hour burden per response is 5 hours. The
estimated total number of respondents for the information collection I-
918A is 17,900 and the estimated hour burden per response is 1.5 hour.
The estimated total number of respondents for the information
collection I-918B is 29,400 and the estimated hour burden per response
is 1 hour. The estimated total number of respondents for the
information collection biometrics submission is 47,300 and the
estimated hour burden per response is 1.17 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 258,591 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $201,025.
USCIS Form I-929
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 information collection instrument.
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 1615-0106 in the body of the letter and
the agency name. 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, for example, 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: Petition for Qualifying Family
Member of a U-1 Nonimmigrant.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-929; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and Households. Section
245(m) of the Immigration and Nationality Act (Act) allows certain
qualifying family members who have never held U nonimmigrant status to
seek lawful permanent residence or apply for immigrant visas. Before
such family members may apply for adjustment of status or seek
immigrant visas, the U-1 nonimmigrant who has been granted adjustment
of status must file an immigrant petition on behalf of the qualifying
family member using Form I-929. Form I-929 is necessary for USCIS

[[Page 583]]

to determine whether the eligibility requirements and conditions for a
qualifying family member are met.
(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 Form I-929
is 1,500 and the estimated hour burden per response is 0.817 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 1,226 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $183,750.
USCIS Form I-941
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 information collection instrument.
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 1615-0136 in the body of the letter and
the agency name. 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, for example, 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: Application for Entrepreneur
Parole.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-941; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households.
Entrepreneurs can use this form to make an initial request for parole
based upon significant public benefit; make a subsequent request for
parole for an additional period; or file an amended application to
notify USCIS of a material change.
(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 Form I-941
is 2,940 and the estimated hour burden per response is 4.517 hours; the
estimated total number of respondents for the information collection
biometrics submission is 2,940 and the estimated hour burden per
response is 1.17 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 16,720 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $1,440,600.
USCIS Form N-336
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 information collection instrument.
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 1615-0050 in the body of the letter and
the agency name. 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, for example, 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: Request for a Hearing on a
Decision in Naturalization Proceedings Under Section 336.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-336; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form N-
336 is used by an individual whose Form N-400, Application for
Naturalization was denied, to request a hearing before an immigration
officer on the denial of the N-400. USCIS uses the information
submitted on Form N-336 to locate the requestor's file and schedule a
hearing in the correct jurisdiction. It allows USCIS to determine if
there is an underlying Form N-400, Application for Naturalization that
was denied, to warrant the filing of Form N-336. The information
collected also allows USCIS to determine if a member of the U.S. armed
forces has filed the appeal.
(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 Form N-336
(paper filed) is 3,788 and the estimated hour burden per response is
2.567 hours; the estimated total number of respondents for the
information collection Form N-336 (online filed) is 1,263 and the
estimated hour burden per response is 2.5 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 12,882 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $2,601,265.
USCIS Form N-400
DHS and USCIS invite the general public and other Federal agencies
to comment on the impact to the proposed collection of information. In
accordance

[[Page 584]]

with the PRA, the information collection notice is published in the
Federal Register to obtain comments regarding the proposed edits to the
information collection instrument.
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 1615-0052 in the body of the letter and
the agency name. 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, for example, 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: Application for Naturalization.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-400; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form N-
400, Application for Naturalization, allows USCIS to fulfill its
mission of fairly adjudicating naturalization applications and only
naturalizing statutorily eligible individuals. Naturalization is the
process by which U.S. citizenship is granted to a foreign citizen or
national after he or she fulfills the requirements established by
Congress in the INA.
(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 Form N-400
(paper filed) is 567,314 and the estimated hour burden per response is
8.987 hours; the estimated total number of respondents for the
information collection N-400 (online filed) is 214,186 and the
estimated hour burden per response is 3.5 hours; the estimated total
number of respondents for the information collection biometrics
submission is 778,000 and the estimated hour burden per response is
1.17 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 6,758,362 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $346,768,928.
USCIS Form N-470
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 information collection instrument.
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 1615-0056 in the body of the letter and
the agency name. 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, for example, 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: Application to Preserve Residence
for Naturalization Purposes.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-470; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. The
information collected on Form N-470 will be used to determine whether
an alien who intends to be absent from the United States for a period
of one year or more is eligible to preserve residence for
naturalization purposes.
(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 Form N-470
is 120 and the estimated hour burden per response is 0.417 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 50 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $14,700.
USCIS Form N-565
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 information collection instrument.
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 1615-0091 in the body of the letter and
the agency name. 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

[[Page 585]]

other forms of information technology, for example, 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: Application for Replacement of
Naturalization/Citizenship Document.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-565; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. U.S.
Citizenship and Immigration Services (USCIS) uses Form N-565 to
determine the applicant's eligibility for a replacement document. An
applicant may file for a replacement if they were issued one of the
documents described above and it was lost, mutilated, or destroyed; if
the document is incorrect due to a typographical or clerical error by
USCIS; if the applicant's name was changed by a marriage, divorce,
annulment, or court order after the document was issued and the
applicant now seeks a document in the new name; or if the applicant is
seeking a change of the gender listed on their document after obtaining
a court order, a government-issued document, or a letter from a
licensed health care professional recognizing that the applicant's
gender is different from that listed on their current document. The
only document that can be replaced on the basis of a change to the
applicant's date of birth, as evidenced by a court order or a document
issued by the U.S. Government or the government of a U.S. state, is the
Certificate of Citizenship. If the applicant is a naturalized citizen
who desires to obtain recognition as a citizen of the United States by
a foreign country, he or she may apply for a special certificate for
that purpose.
(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 N-565
(paper-filed) is 13,270 and the estimated hour burden per response is
1.147 hours; the estimated total number of respondents for the
information collection N-565 (online filed) is 13,270 and the estimated
hour burden per response is 0.917 hours; the estimated total number of
respondents for the photograph appointment is 26,340 (accounts for an
estimated 200 respondents that file from overseas and do not need to
attend a photo appointment) and the estimated hour burden per response
is 1.17 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 58,207 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $3,417,026.
USCIS Form N-600
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 information collection instrument.
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 1615-0057 in the body of the letter and
the agency name. 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, for example, 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: Application for Certification of
Citizenship.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-600; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Form N-
600 collects information from applicants who are requesting a
Certificate of Citizenship because they acquired United States
citizenship either by birth abroad to a U.S. citizen parent(s),
adoption by a U. S. citizen parent(s), or after meeting eligibility
requirements including the naturalization of a foreign-born parent.
Form N-600 can also be filed by a parent or legal guardian on behalf of
a minor child. The form standardizes requests for the benefit and
ensures that basic information required to assess eligibility is
provided by applicants.
(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 N-600 (paper
filing) is 27,500 and the estimated hour burden per response is 1.397
hours; the estimated total number of respondents for the information
collection N-600 (online filed) is 27,500 and the estimated hour burden
per response is 0.75 hours; the estimated total number of respondents
for the information collection biometrics submission is 36,500 and the
estimated hour burden per response is 1.17 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 101,748 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $7,081,250.
USCIS Form N-600K
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 information collection instrument.
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 1615-0087 in the body of the letter and
the agency name. 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;

[[Page 586]]

(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, for example, 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: Application for Citizenship and
Issuance of Certificate under Section 322.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: N-600K; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals and households. Form N-
600K is used by children who regularly reside in a foreign country to
claim U.S. citizenship based on eligibility criteria met by their U.S.
citizen parent(s) or grandparent(s). The form may be used by children
under age 18. USCIS uses information collected on this form to
determine that the child has met all of the eligibility requirements
for naturalization under section 322 of the Immigration and Nationality
Act (INA). If determined eligible, USCIS will naturalize and issue the
child a Certificate of Citizenship before the child reaches age 18.
(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 Form N-600K
(paper filed) is 1,300 and the estimated hour burden per response is
1.897 hours; the estimated total number of respondents for the
information collection Form N-600K (online filed) is 1,700 and the
estimated hour burden per response is 1.5 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 5,016 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $386,250.
USCIS Form OMB-64
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 information collection instrument.
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 1615-0144 in the body of the letter and
the agency name. 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, for example, 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 DHS
sponsoring the collection: OMB-64; 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
will use the data collected through the H-1B Registration Tool to
select a sufficient number of registrations projected to meet the
applicable H-1B cap allocations and to notify registrants whether their
registration was selected.
(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 business or other for-profit respondents for the
information collection H-1B Registration Tool is 35,500 with an
estimated 3 responses per respondents and an estimated hour burden per
response of 0.5167 hours. The estimated total number of attorney
respondents for the information collection H-1B Registration Tool is
4,500 with an estimated 38 responses per respondents and an estimated
hour burden per response of 0.5167 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 143,384 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.00. Any costs to respondents
are captured in the Form I-129 information collection (OMB control
number 1615-009).
Differences in Information Collection Request Respondent Volume and Fee
Model Filing Volume Projections
DHS notes that the estimates of annual filing volume in the PRA
section of this preamble are not the same as those used in the model
used to calculate the fee amounts proposed in this rule. For example,
the fee calculation model projects 1,666,500 Form I-765 filings while
the estimated total number of respondents for the information
collection I-765 is 2,179,494. As stated in section V.B.1.a of this
preamble, the VPC forecasts USCIS workload volume based on short- and
long-term volume trends and time series models, historical receipts
data, patterns (such as level, trend, and seasonality), or correlations
with historical events to forecast receipts. Workload volume is used to
determine the USCIS resources needed to process benefit requests and is
the primary cost driver for assigning activity costs to immigration
benefits and biometric services in the USCIS ABC model. DHS uses a
different method for estimating the average annual number of
respondents for the information collection over the 3-year OMB approval
of the control number, generally basing the estimate on the average
filing volumes in the previous 3 of 5-year period, with less
consideration of the volume effects on planned or past policy changes.
Nevertheless, when the information collection request is nearing
expiration USCIS will update the estimates of annual respondents based
on actual results in the submission to OMB. The PRA burden estimates
are generally updated at least every 3 years. Thus, DHS expects that
the PRA estimated annual respondents will be updated to reflect the
actual effects of this proposed rule within a relatively short period
after a final rule takes effect.

[[Page 587]]

I. National Environmental Policy Act

DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual
023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and
procedures that DHS and its components use to comply with the National
Environmental Policy Act (NEPA) and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500
through 1508.
The CEQ regulations allow Federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') that experience has shown do not have a significant
effect on the human environment and, therefore, do not require an
Environmental Assessment or Environmental Impact Statement. 40 CFR
1507.3(e)(2)(ii), 1501.4.
The Instruction Manual establishes categorical exclusions that DHS
has found to have no such effect. See Appendix A, Table 1. Under DHS
NEPA implementing procedures, for a proposed action to be categorically
excluded it must satisfy each of the following three conditions: (1)
the entire action clearly fits within one or more of the categorical
exclusions; (2) the action is not a piece of a larger action; and (3)
no extraordinary circumstances exist that create the potential for a
significant environmental effect. Instruction Manual section V.B(2)(a)-
(c).
This proposed rule implements the authority in the INA to establish
fees to fund immigration and naturalization services of USCIS.
DHS has determined that this proposed rule does not individually or
cumulatively have a significant effect on the human environment because
it clearly fits within categorical exclusions A3(a) and (d) in Appendix
A of the Instruction Manual established for rules of a strictly
administrative or procedural nature and actions that interpret or amend
an existing regulation without changing its environmental effect.
This proposed rule is not part of a larger action and presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this proposed rule is categorically
excluded from further NEPA review.

J. Family Assessment

Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Agencies must assess whether the regulatory action: (1) Impacts the
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) if the regulatory action financially impacts
families, are justified; (6) may be carried out by State or local
government or by the family; and (7) establishes a policy concerning
the relationship between the behavior and personal responsibility of
youth and the norms of society. If the determination is affirmative,
then the Agency must prepare an impact assessment to address criteria
specified in the law. DHS has no data that indicate that this proposed
rule will have any impacts on disposable income or the poverty of
certain families and children, including U.S. citizen children. DHS
acknowledges that this proposal would increase the fees that families
must submit and thus it may affect the disposable income for certain
families. DHS has provided a process to waive fees for immigration
benefits when the person submitting the request is unable to pay the
fee. In addition, the proposed rule may provide USCIS with the funds
necessary to provide free services to certain disadvantaged
populations, including abused children and spouses, refugees, and
victims of criminal activity or human trafficking. DHS believes that
the benefits of the new fees justify the financial impact on the
family, that this rulemaking's impact is justified, and no further
actions are required. DHS also determined that this proposed rule will
not have any impact on the autonomy or integrity of the family as an
institution.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.

8 CFR Part 106

Immigration, User fees.

8 CFR Part 204

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

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.

8 CFR Part 240

Administrative practice and procedure, Aliens.

8 CFR Part 244

Administrative practice and procedure, Immigration.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 245a

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 264

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.

Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:

PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 is revised 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. 101 et seq.); Pub. L. 112-54, 125 Stat 550 (8 U.S.C. 1185
note); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8
CFR part 2.
0
2. Section 103.2 is amended by revising the fourth sentence of
paragraph (a)(1) and paragraphs (a)(7)(ii)(D) and (b)(19)(iii)(A) to
read as follows:

Sec. 103.2 Submission and adjudication of benefit requests.

(a) * * *
(1) * * * Filing fees generally are non-refundable regardless of
the outcome of the benefit request, or how much time the adjudication
requires, and any decision to refund a fee is at the discretion of
USCIS. * * *
* * * * *
(7) * * *
(ii) * * *

[[Page 588]]

(D) Submitted with the correct fee(s). If a check or other
financial instrument used to pay a fee is returned as unpayable because
of insufficient funds, USCIS will resubmit the payment to the remitter
institution one time. If the instrument used to pay a fee is returned
as unpayable a second time, the filing may be rejected. Financial
instruments returned as unpayable for a reason other than insufficient
funds will not be redeposited. Credit cards that are declined will not
be submitted a second time. If a check or other financial instrument
used to pay a fee is dated more than one year before the request is
received, the payment and request may be rejected.
* * * * *
(b) * * *
(19) * * *
(iii) * * *
(A) USCIS will send secure identification documents, such as a
Permanent Resident Card or Employment Authorization Document, only to
the applicant or self-petitioner unless the applicant or self-
petitioner specifically consents to having his or her secure
identification document sent to a designated agent or their attorney or
accredited representative of record, as specified on the form
instructions.
* * * * *
0
3. Section 103.7 is revised and republished to read as follows:

Sec. 103.7 Fees.

(a) Department of Justice (DOJ) fees. Fees for proceedings before
immigration judges and the Board of Immigration Appeals are described
in 8 CFR 1003.8, 1003.24, and 1103.7.
(1) USCIS may accept DOJ fees. Except as provided in 8 CFR 1003.8,
or as the Attorney General otherwise may provide by regulation, any fee
relating to any EOIR proceeding may be paid to USCIS. Payment of a fee
under this section does not constitute filing of the document with the
Board or with the immigration court. DHS will provide the payer with a
receipt for a fee and return any documents submitted with the fee
relating to any immigration court proceeding.
(2) DHS-EOIR biometric services fee. Fees paid to and accepted by
DHS relating to any immigration proceeding as provided in 8 CFR
1103.7(a) must include an additional $30 for DHS to collect, store, and
use biometric information.
(3) Waiver of court fees. An immigration judge may waive any fees
prescribed under this chapter for cases under their jurisdiction to the
extent provided in 8 CFR 1003.8, 1003.24, and 1103.7.
(b) USCIS fees. USCIS fees will be required as provided in 8 CFR
part 106.
(c) Remittances. Remittances to the Board of Immigration Appeals
must be made payable to the ``United States Department of Justice,'' in
accordance with 8 CFR 1003.8.
(d) Non-USCIS DHS immigration fees. The following fees are
applicable to one or more of the immigration components of DHS:
(1) DCL system costs fee. For use of a Dedicated Commuter Lane
(DCL) located at specific U.S. ports-of-entry by an approved
participant in a designated vehicle:
(i) $80.00; or
(ii) $160.00 for a family (applicant, spouse and minor children);
plus,
(iii) $42 for each additional vehicle enrolled.
(iv) The fee is due after approval of the application but before
use of the DCL.
(v) This fee is non-refundable, but may be waived by DHS.
(2) Petition for Approval of School for Attendance by Nonimmigrant
Student (Form I-17). (i) For filing a petition for school
certification: $3,000 plus, a site visit fee of $655 for each location
required to be listed on the form.
(ii) For filing a petition for school recertification: $1,250, plus
a site visit fee of $655 for each new location required to be listed on
the form.
(3) Form I-68. For application for issuance of the Canadian Border
Boat Landing Permit under section 235 of the Act:
(i) $16.00; or
(ii) $32 for a family (applicant, spouse, and unmarried children
under 21 years of age, and parents of either spouse).
(4) Form I-94. For issuance of Arrival/Departure Record at a land
border port-of-entry: $6.00.
(5) Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border port-of-entry under section 217 of the
Act: $6.00.
(6) Form I-246. For filing application for stay of deportation
under 8 CFR part 243: $155.00. The application fee may be waived by
DHS.
(7) Form I-823. For application to a PORTPASS program under section
286 of the Act:
(i) $25.00; or
(ii) $50.00 for a family (applicant, spouse, and minor children).
(iii) The application fee may be waived by DHS.
(iv) If fingerprints are required, the inspector will inform the
applicant of the current Federal Bureau of Investigation fee for
conducting fingerprint checks before accepting the application fee.
(v) The application fee (if not waived) and fingerprint fee must be
paid to CBP before the application will be processed. The fingerprint
fee may not be waived.
(vi) For replacement of PORTPASS documentation during the
participation period: $25.00.
(8) Fee Remittance for F, J, and M Nonimmigrants (Form I-901). The
fee for Form I-901 is:
(i) For F and M students: $350.
(ii) For J-1 au pairs, camp counselors, and participants in a
summer work or travel program: $35.
(iii) For all other J exchange visitors (except those participating
in a program sponsored by the Federal Government): $220.
(iv) There is no Form I-901 fee for J exchange visitors in
federally funded programs with a program identifier designation prefix
that begins with G-1, G-2, G-3, or G-7.
(9) Special statistical tabulations. The DHS cost of the work
involved.
(10) Monthly, semiannual, or annual ``Passenger Travel Reports via
Sea and Air'' tables. (i) For the years 1975 and before: $7.00.
(ii) For after 1975: Contact: U.S. Department of Transportation,
Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
(11) Request for Classification of a citizen of Canada to engage in
professional business activities pursuant to section 214(e) of the Act
(Chapter 16 of the North American Free Trade Agreement). $50.00.
(12) Request for authorization for parole of an alien into the
United States. $65.00.
(13) Global Entry. Application for Global Entry: $100.
(14) U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel
Card. Application fee: $70.
(15) Notice of Appeal or Motion (Form I-290B) filed with ICE SEVP.
For a Form I-290B filed with the Student and Exchange Visitor Program
(SEVP): $675.
0
4. Section 103.17 is revised and republished to read as follows:

Sec. 103.17 Biometric services fee.

DHS may charge a fee to collect biometric information, to provide
biometric collection services, to conduct required national security
and criminal history background checks, to verify an individual's
identity, and to store and maintain this biometric information for
reuse to support other benefit requests. When a biometric services fee
is required, USCIS may reject a benefit request submitted without the
correct biometric services.

[[Page 589]]

0
5. Section 103.40 is revised and republished to read as follows:

Sec. 103.40 Genealogical research requests.

(a) Nature of requests. Genealogy requests are requests for
searches and/or copies of historical records relating to a deceased
person, usually for genealogy and family history research purposes.
(b) Forms. USCIS provides on its website at https://www.uscis.gov/records/genealogy the required forms in electronic versions: Genealogy
Index Search Request or Genealogy Records Request.
(c) Required information. Genealogical research requests may be
submitted to request one or more separate records relating to an
individual. A separate request must be submitted for each individual
searched. All requests for records or index searches must include the
individual's:
(1) Full name (including variant spellings of the name and/or
aliases, if any).
(2) Date of birth, at least as specific as a year.
(3) Place of birth, at least as specific as a country and
preferably the country name at the time of the individual's immigration
or naturalization.
(d) Optional information. To better ensure a successful search, a
genealogical research request may include each individual's:
(1) Date of arrival in the United States.
(2) Residence address at time of naturalization.
(3) Names of parents, spouse, and children if applicable and
available.
(e) Additional information required to retrieve records. For a
Genealogy Records Request, requests for copies of historical records or
files must identify the record by number or other specific data used by
the Genealogy Program Office to retrieve the record as follows:
(1) C-Files must be identified by a naturalization certificate
number.
(2) Forms AR-2 and A-Files numbered below 8 million must be
identified by Alien Registration Number.
(3) Visa Files must be identified by the Visa File Number. Registry
Files must be identified by the Registry File Number (for example, R-
12345).
(f) Information required for release of records. (1) Documentary
evidence must be attached to a Genealogy Records Request or submitted
in accordance with the instructions on the Genealogy Records Request
form.
(2) Search subjects will be presumed deceased if their birth dates
are more than 100 years before the date of the request. In other cases,
the subject is presumed to be living until the requestor establishes to
the satisfaction of USCIS that the subject is deceased.
(3) Documentary evidence of the subject's death is required
(including but not limited to death records, published obituaries or
eulogies, published death notices, church or bible records, photographs
of gravestones, and/or copies of official documents relating to payment
of death benefits).
(g) Index search. Requestors who are unsure whether USCIS has any
record of their ancestor, or who suspect a record exists but cannot
identify that record by number, may submit a request for index search.
An index search will determine the existence of responsive historical
records. If no record is found, USCIS will notify the requestor
accordingly. If records are found, USCIS will give the requestor
electronic copies of records stored in digital format for no additional
fee. For records found that are stored in paper format, USCIS will give
the requestor the search results, including the type of record found
and the file number or other information identifying the record. The
requestor can use index search results to submit a Genealogy Records
Request.
(h) Processing of paper record copy requests. This service is
designed for requestors who can identify a specific record or file to
be retrieved, copied, reviewed, and released. Requestors may identify
one or more files in a single request.
0
6. Part 106 is revised and republished to read as follows:

PART 106--USCIS FEE SCHEDULE

Sec. 106.1 Fee requirements.
106.2 Fees.
106.3 Fee waivers and exemptions.
106.4 Premium processing service.
106.5 Authority to certify records.
106.6 DHS severability.

Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; 48
U.S.C. 1806; Pub. L. 107- 296, 116 Stat. 2135 (6 U.S.C. 101 note);
Pub. L. 115-218, 132 Stat. 1547; Pub. L. 116-159, 134 Stat. 709.

Sec. 106.1 Fee requirements.

(a) Fees must be submitted with any USCIS request in the amount and
subject to the conditions provided in this part and remitted in the
manner prescribed in the relevant form instructions, on the USCIS
website, or in a Federal Register document. The fees established in
this part are associated with the benefit, the adjudication, or the
type of request and not solely determined by the form number listed in
Sec. 106.2.
(b) Fees must be remitted from a bank or other institution located
in the United States and payable in U.S. currency. The fee must be paid
using the method that USCIS prescribes for the request, office, filing
method, or filing location, as provided in the form instructions or by
individual notice.
(c) If a remittance in payment of a fee or any other matter is not
honored by the bank or financial institution on which it is drawn:
(1) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will
be issued, and if a receipt was issued, it is void and the benefit
request loses its receipt date; and
(2) If the benefit request was approved, the approval may be
revoked upon notice. If the approved benefit request requires multiple
fees, this paragraph (c) would apply if any fee submitted is not
honored. Other fees that were paid for a benefit request that is
revoked under this paragraph (c) will be retained and not refunded. A
revocation of an approval because the fee submitted is not honored may
be appealed to the USCIS Administrative Appeals Office, in accordance
with 8 CFR 103.3 and the applicable form instructions.
(d) DHS is not responsible for financial instruments that expire
before they are deposited. USCIS may reject any filing for which
required payment cannot be processed due to expiration of the financial
instrument.
(e) Fees paid to USCIS using a credit card are not subject to
dispute, chargeback, forced refund, or return to the cardholder for any
reason except at the discretion of USCIS.

Sec. 106.2 Fees.

(a) I Forms--(1) Application to Replace Permanent Resident Card,
Form I-90. For filing an application for a Permanent Resident Card,
Form I-551, to replace an obsolete card or to replace one lost,
mutilated, or destroyed, or for a change in name.
(i) When filed online: $455.
(ii) When filed on paper: $465.
(iii) If the applicant was issued a card but never received it: No
fee.
(iv) If the applicant's card was issued with incorrect information
because of DHS error and the applicant is filing for a replacement: No
fee.
(v) If the applicant has reached their 14th birthday and their
existing card will expire after their 16th birthday: No fee.
(2) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document, Form I-102. For filing an application for Arrival/
Departure Record Form I-94, or Crewman's Landing Permit Form I-95, to
replace one lost, mutilated, or destroyed: $680.

[[Page 590]]

(i) For nonimmigrant member of the U.S. armed forces: No fee for
initial filing;
(ii) For a nonimmigrant member of the North Atlantic Treaty
Organization (NATO) armed forces or civil component: No fee for initial
filing;
(iii) For nonimmigrant member of the Partnership for Peace military
program under the Status of Forces Agreement (SOFA): No fee for initial
filing; and
(iv) For replacement for DHS error: No fee.
(3) Petition or Application for a Nonimmigrant Worker, Form I-129.
For filing a petition or application for a nonimmigrant worker:
(i) Petition for H-1B Nonimmigrant Worker or H-1B1 Free Trade
Nonimmigrant Worker: $780.
(ii) Petition for H-2A Nonimmigrant Worker with 1 to 25 named
beneficiaries: $1,090.
(iii) Petition for H-2A Nonimmigrant Worker with only unnamed
beneficiaries: $530.
(iv) Petition for H-2B Nonimmigrant Worker with 1 to 25 named
beneficiaries: $1,080.
(v) Petition for H-2B Nonimmigrant Worker with only unnamed
beneficiaries: $580.
(vi) Petition for L Nonimmigrant Worker: $1,385.
(vii) Petition for O Nonimmigrant Worker with 1 to 25 named
beneficiaries: $1,055.
(viii) Petition or Application for E, H-3, P, Q, R, or TN
Nonimmigrant Worker with 1 to 25 named beneficiaries: $1,015.
(4) Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form
I-129CW. For an employer to petition on behalf of beneficiaries in the
Commonwealth of the Northern Mariana Islands (CNMI): $1,015.
(i) Additional fees in paragraph (c) of this section may apply.
(ii) Semiannual Report for CW-1 Employers (Form I-129CWR): No fee.
(5) Petition for Alien fiancé(e), Form I-129F. (i) For
filing a petition to classify a nonimmigrant as a fiancée or
fiancé under section 214(d) of the Act: $720.
(ii) For a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the
beneficiary of an immigrant petition filed by a U.S. citizen on a
``Petition for Alien Relative,'' Form I-130: No fee.
(6) Petition for Alien Relative, Form I-130. For filing a petition
to classify status of a foreign national relative for issuance of an
immigrant visa under section 204(a) of the Act.
(i) When filed online: $710.
(ii) When filed on paper: $820.
(7) Application for Travel Document, Form I-131. (i) Refugee Travel
Document for asylee and lawful permanent resident who obtained such
status as an asylee 16 years or older: $165.
(ii) Refugee Travel Document for asylee and lawful permanent
resident who obtained such status as an asylee under the age of 16:
$135.
(iii) Advance Parole, Reentry Permit, and other travel documents:
$630.
(iv) There are no fees for a travel document for applicants who
filed USCIS Form I-485 on or after July 30, 2007, and before [EFFECTIVE
DATE OF THE FINAL RULE], and paid the Form I-485 fee.
(v) There are no fees for parole requests from current or former
U.S. armed forces service members.
(8) Application for Carrier Documentation, Form I-131A. For filing
an application to allow a lawful permanent resident to apply for a
travel document (carrier documentation) to board an airline or other
transportation carrier to return to the United States: $575.
(9) Declaration of Financial Support, Form I-134. No fee.
(10) Immigrant Petition for Alien Worker, Form I-140. For filing a
petition to classify preference status of an alien on the basis of
profession or occupation under section 204(a) of the Act: $715.
(11) Application for Relief Under Former Section 212(c) of the
Immigration and Nationality Act (INA), Form I-191. For filing an
application for discretionary relief under section 212(c) of the Act:
$930.
(12) Application for Advance Permission to Enter as a Nonimmigrant,
Form I-192. For filing an application for discretionary relief under
section 212(d)(3), (13), or (14) of the Act, except in an emergency
case or where the approval of the application is in the interest of the
U.S. Government: $1,100.
(13) Application for Waiver of Passport and/or Visa, Form I-193.
For filing an application for waiver of passport and/or visa: $695.
(14) Application for Permission to Reapply for Admission into the
United States After Deportation or Removal, Form I-212. For filing an
application for permission to reapply for admission by an excluded,
deported, or removed alien; an alien who has fallen into distress; an
alien who has been removed as an alien enemy; or an alien who has been
removed at Government expense: $1,395.
(15) Notice of Appeal or Motion, Form I-290B. For appealing a
decision under the immigration laws in any type of proceeding over
which the Board of Immigration Appeals does not have appellate
jurisdiction, and for filing a motion to review or reconsider a USCIS
decision: $800. The fee will be the same for appeal of or motion on a
denial of a benefit request with one or multiple beneficiaries. There
is no fee for conditional permanent residents who filed a waiver of the
joint filing requirement based on battery or extreme cruelty and filed
a ``Notice of Appeal or Motion (Form I-290B) when their Petition to
Remove the Conditions on Residence'' (Form I-751) was denied.
(16) Petition for Amerasian, Widow(er), or Special Immigrant, Form
I-360. $515. There is no fee for the following:
(i) A petition seeking classification as an Amerasian;
(ii) A petition seeking immigrant classification as a Violence
Against Women Act (VAWA) self-petitioner;
(iii) A petition for Special Immigrant Juvenile classification;
(iv) A petition seeking special immigrant classification as Afghan
or Iraqi translator or interpreter, Iraqi national employed by or on
behalf of the U.S. Government, or Afghan national employed by or on
behalf of the U.S. Government or employed by the International Security
Assistance Force (ISAF); or a surviving spouse or child of such a
person; or
(v) A petition for a person who served honorably on active duty in
the U.S. armed forces filing under section 101(a)(27)(K) of the Act.
(17) Affidavit of Financial Support and Intent to Petition for
Legal Custody for Public Law 97-359 Amerasian, Form I-361. No fee.
(18) Request to Enforce Affidavit of Financial Support and Intent
to Petition for Legal Custody for Public Law 97-359 Amerasian, Form I-
363. No fee.
(19) Record of Abandonment of Lawful Permanent Resident Status,
Form I-407. No fee.
(20) Application to Register Permanent Residence or Adjust Status,
Form I-485. For filing an application for permanent resident status or
creation of a record of lawful permanent residence: $1,540. There is no
fee for the following:
(i) An applicant who is in deportation, exclusion, or removal
proceedings before an immigration judge, and the court waives the
application fee.
(ii) An applicant who served honorably on active duty in the U.S.
armed forces who is filing under section 101(a)(27)(K) of the Act.
(21) Application to Adjust Status under Section 245(i) of the Act,
Form I-485 Supplement A. Supplement A to Form I-485 for persons seeking
to adjust status under the provisions of section 245(i) of the Act: A
sum of $1,000 must

[[Page 591]]

be paid while the applicant's ``Application to Register Permanent
Residence or Adjust Status'' is pending, unless payment of the
additional sum is not required under section 245(i) of the Act,
including:
(i) If applicant is unmarried and under 17 years of age: No fee.
(ii) If the applicant is the spouse or unmarried child under 21
years of age of a legalized alien and attaches a copy of a USCIS
receipt or approval notice for a properly filed Form I-817,
``Application for Family Unity Benefits'': No fee.
(22) Confirmation of Bona Fide Job Offer or Request for Job
Portability Under INA Section 204(j), Form I-485J. No fee.
(23) Request for Waiver of Certain Rights, Privileges, Exemptions,
and Immunities, Form I-508. No fee.
(24) Immigrant Petition by Standalone or Regional Center Investor,
Forms I-526 and I-526E. (i) Immigrant Petition by Standalone Investor,
Form I-526: $11,160.
(ii) Immigrant Petition by Regional Center Investor, Form I-526E:
$11,160.
(25) Application To Extend/Change Nonimmigrant Status, Form I-539.
(i) When filing online: $525.
(ii) When filing on paper: $620.
(iii) There is no fee for the following:
(A) Nonimmigrant A, G, and NATO;
(B) T nonimmigrant; and
(C) U nonimmigrant if filed before the petitioner files an
Application to Register Permanent Residence or Adjust Status (Form I-
485).
(26) Interagency Record of Request--A, G, or NATO Dependent
Employment Authorization or Change/Adjustment To/From A, G, or NATO
Status, Form I-566. No fee.
(27) Application for Asylum and for Withholding of Removal, Form I-
589. No fee.
(28) Registration for Classification as a Refugee, Form I-590. No
fee.
(29) Petition to Classify Orphan as an Immediate Relative, Form I-
600. For filing a petition to classify an orphan as an immediate
relative for issuance of an immigrant visa: $920.
(i) There is no fee for the first Form I-600 filed for a child on
the basis of an approved Application for Advance Processing of an
Orphan Petition, Form I-600A, during the Form I-600A approval or
extended approval period.
(ii) Except as specified in paragraph (a)(29)(iii) of this section,
if more than one Form I-600 is filed during the Form I-600A approval
period, the fee is $920 for the second and each subsequent Form I-600
petition submitted.
(iii) If more than one Form I-600 is filed during the Form I-600A
approval period on behalf of beneficiary birth siblings, no additional
fee is required.
(30) Application for Advance Processing of an Orphan Petition, Form
I-600A. For filing an application for determination of suitability and
eligibility to adopt an orphan: $920.
(31) Request for Action on Approved Form I-600A/I-600, Form I-600A/
I-600 Supplement 3. $455.
(i) This filing fee:
(A) Is not charged if Form I-600A/I-600 Supplement 3 is filed to
obtain a first-time extension of the approval of the Form I-600A or to
obtain a first-time change of non-Hague Adoption Convention country
during the Form I-600A approval period.
(B) Is charged if Form I-600A/I-600 Supplement 3 is filed to
request a new approval notice based on a significant change and updated
home study unless a first-time extension of the Form I-600A approval or
first-time change of non-Hague Adoption Convention country is also
being requested on the same Supplement 3.
(C) Is charged for second or subsequent extensions of the approval
of the Form I-600A, second or subsequent changes of non-Hague Adoption
Convention country, requests for a new approval notice based on a
significant change and updated home study, and requests for a duplicate
approval notice permitted with Form I-600A/I-600 Supplement 3 with the
filing fee.
(ii) Form I-600A/I-600 Supplement 3 cannot be used to:
(A) Extend eligibility to proceed as a Hague Adoption Convention
transition case beyond the first extension once the Convention enters
into force for the new Convention country.
(B) Request a change of country to a Hague Adoption Convention
transition country for purposes of becoming a transition case if
another country was already designated on the Form I-600A or the
applicant previously changed countries.
(iii) Form I-600A/I-600 Supplement 3 may only be used to request an
increase in the number of children the applicant/petitioner is approved
to adopt from a transition country if the additional child is a birth
sibling of a child whom the applicant/petitioner has adopted or is in
the process of adopting, as a transition case, and is identified and
petitioned for while the Form I-600A approval is valid, unless the new
Convention country prohibits such birth sibling cases from proceeding
as transition cases.
(32) Application for Waiver of Ground of Inadmissibility, Form I-
601. $1,050. No fee is required for filing an application to overcome
the grounds of inadmissibility of the Act if filed concurrently with an
application for adjustment of status under the provisions of the Act of
October 28, 1977, and of this part.
(33) Application for Provisional Unlawful Presence Waiver, Form I-
601A. $1,105.
(34) Application by Refugee for Waiver of Grounds of
Inadmissibility, Form I-602. No fee.
(35) Application for Waiver of the Foreign Residence Requirement
(under Section 212(e) of the Immigration and Nationality Act, as
Amended), Form I-612. $1,100.
(36) Application for Status as a Temporary Resident under Section
245A of the Immigration and Nationality Act, Form I-687. $1,240.
(37) Application for Waiver of Grounds of Inadmissibility, Form I-
690. For filing an application for waiver of a ground of
inadmissibility under section 212(a) of the Act as amended, in
conjunction with the application under section 210 or 245A of the Act,
or a petition under section 210A of the Act: $985.
(38) Report of Medical Examination and Vaccination Record (Form I-
693). No fee.
(39) Notice of Appeal of Decision under Sections 245A or 210 of the
Immigration and Nationality Act (or a petition under section 210A of
the Act), Form I-694. For appealing the denial of an application under
section 210 or 245A of the Act, or a petition under section 210A of the
Act: $1,155.
(40) Application to Adjust Status from Temporary to Permanent
Resident (Under Section 245A of the INA), Form I-698. For filing an
application to adjust status from temporary to permanent resident
(under section 245A of Pub. L. 99-603): $1,670. The adjustment date is
the date of filing of the application for permanent residence or the
applicant's eligibility date, whichever is later.
(41) Refugee/Asylee Relative Petition, Form I-730. No fee.
(42) Petition to Remove Conditions on Residence, Form I-751. For
filing a petition to remove the conditions on residence based on
marriage: $1,195.
(43) Application for Employment Authorization, Form I-765. (i) When
filed online: $555.
(ii) When filed on paper: $650.
(iii) There is no fee for an initial Employment Authorization
Document for the following:
(A) An applicant who filed USCIS Form I-485 on or after July 30,
2007, and before [EFFECTIVE DATE OF THE FINAL RULE], and paid the Form
I-485 fee;

[[Page 592]]

(B) Dependents of certain government and international
organizations or NATO personnel;
(C) N-8 (Parent of alien classed as SK3) and N-9 (Child of N-8)
nonimmigrants;
(D) Persons granted asylee status (AS1, AS6);
(E) Citizen of Micronesia, Marshall Islands, or Palau;
(F) Granted Withholding of Deportation or Removal;
(G) Applicant for Asylum and Withholding of Deportation or Removal
including derivatives;
(H) Taiwanese dependents of Taipei Economic and Cultural
Representative Office (TECRO) E-1 employees; and
(I) Current or former U.S. armed forces service members.
(iv) Request for replacement Employment Authorization Document
based on USCIS error: No fee.
(v) There is no fee for a renewal or replacement Employment
Authorization Document for the following:
(A) Any current Adjustment of Status or Registry applicant who
filed for adjustment of status on or after July 30, 2007, and before
[EFFECTIVE DATE OF THE FINAL RULE], and paid the appropriate Form I-485
filing fee;
(B) Dependent of certain foreign government, international
organization, or NATO personnel;
(C) Citizen of Micronesia, Marshall Islands, or Palau; and
(D) Granted withholding of deportation or removal.
(vi) There is no fee for the Application for Employment
Authorization for Abused Nonimmigrant Spouse, Form I-765V.
(44) Petition to Classify Convention Adoptee as an Immediate
Relative, Form I-800. For filing a petition to classify a Hague
Convention adoptee as an immediate relative for issuance of an
immigrant visa.
(i) There is no fee for the first Form I-800 filed for a child on
the basis of an approved Application for Determination of Suitability
to Adopt a Child from a Convention Country, Form I-800A, during the
Form I-800A approval period.
(ii) Except as specified in paragraph (a)(44)(iii) of this section,
if more than one Form I-800 is filed during the Form I-800A approval
period, the fee is $920 for the second and each subsequent Form I-800
petition submitted.
(iii) If more than one Form I-800 is filed during the Form I-800A
approval period on behalf of beneficiary birth siblings, no additional
fee is required.
(45) Application for Determination of Suitability to Adopt a Child
from a Convention Country, Form I-800A. For filing an application for
determination of suitability and eligibility to adopt a child from a
Hague Adoption Convention country: $920.
(46) Request for Action on Approved Application for Determination
of Suitability to Adopt a Child from a Convention Country, Form I-800A,
Supplement 3. $455. This filing fee:
(i) Is not charged if Form I-800A Supplement 3 is filed to obtain a
first-time extension of the approval of the Form I-800A or to obtain a
first-time change of Hague Adoption Convention country during the Form
I-800A approval period.
(ii) Is charged if Form I-800A Supplement 3 is filed to request a
new approval notice based on a significant change and updated home
study unless a first-time extension of the Form I-800A approval or
first-time change of Hague Adoption Convention country is also being
requested on the same Supplement 3.
(iii) Is $455 for second or subsequent extensions of the Form I-
800A approval, second or subsequent changes of Hague Adoption
Convention country, requests for a new approval notice based on a
significant change and updated home study, and requests for a duplicate
approval notice, permitted with the filing of a Form I-800A, Supplement
3 and the required filing fee.
(47) Application for Family Unity Benefits, Form I-817. For filing
an application for voluntary departure under the Family Unity Program:
$875.
(48) Application for Temporary Protected Status, Form I-821. (i)
For first time applicants: $50 or the maximum permitted by section
244(c)(1)(B) of the Act.
(ii) There is no fee for re-registration.
(iii) A Temporary Protected Status (TPS) applicant or re-registrant
must pay $30 for biometric services.
(49) Consideration of Deferred Action for Childhood Arrivals, Form
I-821D. $85.
(50) Application for Action on an Approved Application or Petition,
Form I-824. $675.
(51) Petition by Investor to Remove Conditions on Permanent
Resident Status, Form I-829. $9,525.
(52) Inter-Agency Alien Witness and Informant Record, Form I-854.
No fee.
(53) Affidavit of Support Under Section 213A of the INA, Form I-
864. No fee.
(i) Contract Between Sponsor and Household Member, Form I-864A. No
fee.
(ii) Affidavit of Support Under Section 213A of the INA, Form I-
864EZ. No fee.
(iii) Request for Exemption for Intending Immigrant's Affidavit of
Support, Form I-864W. No fee.
(iv) Sponsor's Notice of Change of Address, Form I-865. No fee.
(54) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100),
Form I-881. (i) $340 for adjudication by DHS.
(ii) $165 for adjudication by EOIR. If the Form I-881 is referred
to the immigration court by DHS: No fee.
(iii) If filing Form I-881 as a VAWA self-petitioner, including
derivatives, as defined under section 101(a)(51)(F) of the Act: No fee.
(55) Application for Authorization to Issue Certification for
Health Care Workers, Form I-905. $230.
(56) Request for Premium Processing Service, Form I-907. The
Request for Premium Processing Service fee will be as provided in Sec.
106.4.
(57) Request for Civil Surgeon Designation, Form I-910. $1,230.
(58) Request for Fee Waiver, Form I-912. No fee.
(59) Application for T Nonimmigrant Status, Form I-914. No fee.
(i) Supplement A to Form I-914, Application for Immigrant Family
Member of a T-1 Recipient. No fee.
(ii) Supplement B to Form I-914, Declaration of Law Enforcement
Officer for Victim of Trafficking in Persons. No fee.
(60) Petition for U Nonimmigrant Status, Form I-918. No fee.
(i) Supplement A to Form I-918, Petition for Qualifying Family
Member of U-1 Recipient. No fee.
(ii) Supplement B to Form I-918, U Nonimmigrant Status
Certification. No fee.
(61) Petition for Qualifying Family Member of a U-1 Nonimmigrant,
Form I-929. For a principal U-1 nonimmigrant to request immigration
benefits on behalf of a qualifying family member who has never held U
nonimmigrant status: $270.
(62) Application for Entrepreneur Parole, Form I-941. For filing an
application for parole for an entrepreneur: $1,200.
(63) Request for Reduced Fee, Form I-942. Requesting a reduced fee
for the naturalization application Form N-400: No fee.
(64) Application for Regional Center Designation, Form I-956.
$47,695.
(65) Application for Approval of Investment in a Commercial
Enterprise, Form I-956F. $47,695.
(66) Regional Center Annual Statement, Form I-956G. To provide
updated information and certify that a Regional Center under the
Immigrant

[[Page 593]]

Investor Program has maintained its eligibility: $4,470.
(b) N Forms--(1) Monthly Report on Naturalization Papers, Form N-4.
No fee.
(2) Application to File Declaration of Intention, Form N-300. $320.
(3) Request for a Hearing on a Decision in Naturalization
Proceedings (under section 336 of the Act), Form N-336. $830. There is
no fee for an applicant who has filed an Application for Naturalization
under section 328 or 329 of the Act with respect to military service
and whose application has been denied.
(4) Application for Naturalization, Form N-400. $760. With the
following exceptions:
(i) No fee is charged an applicant who meets the requirements of
section 328 or 329 of the Act with respect to military service.
(ii) The fee for an applicant with an approved Request for Reduced
Fee, Form I-942, whose documented income is less than 200 percent of
the Federal poverty level: $380.
(5) Request for Certification of Military or Naval Service, Form N-
476. No fee.
(6) Application to Preserve Residence for Naturalization Purposes,
Form N-470. $420.
(7) Application for Replacement Naturalization/Citizenship
Document, Form N-565. $555. There is no fee when this application is
submitted under 8 CFR 338.5(a) or 343a.1 to request correction of a
certificate that contains an error.
(8) Application for Certificate of Citizenship, Form N-600. $1,385.
There is no fee for any application filed by a current or former member
of any branch of the U.S. armed forces on their own behalf.
(9) Application for Citizenship and Issuance of Certificate Under
Section 322, Form N-600K. $1,385.
(10) Application for Posthumous Citizenship, Form N-644. No fee.
(11) Medical Certification for Disability Exceptions, Form N-648.
No fee.
(c) G Forms, statutory fees, and non-form fees--(1) Genealogy Index
Search Request, Form G-1041. The fee is due regardless of the search
results.
(i) When filed online: $100.
(ii) When filed on paper: $120.
(2) Genealogy Records Request, Form G-1041A. USCIS will refund the
records request fee when it is unable to locate any file previously
identified in response to the index search request.
(i) When filed online: $240.
(ii) When filed on paper: $260.
(3) USCIS immigrant fee. For DHS domestic processing and issuance
of required documents after an immigrant visa is issued by the U.S.
Department of State: $235.
(4) American Competitiveness and Workforce Improvement Act (ACWIA)
fee. For filing certain H-1B petitions as described in 8 CFR
214.2(h)(19) and USCIS form instructions: $1,500 or $750.
(5) Fraud detection and prevention fee. (i) For filing certain H-1B
and L petitions as described in 8 U.S.C. 1184(c) and USCIS form
instructions: $500.
(ii) For filing certain H-2B petitions as described in 8 U.S.C.
1184(c) and USCIS form instructions: $150.
(6) Fraud detection and prevention fee for CNMI. For employer
petitions in CNMI as described in Public Law 115-218 and USCIS form
instructions: $50.
(7) CNMI education funding fee. The fee amount will be as
prescribed in the form instructions and:
(i) The fee amount must be paid in addition to, and in a separate
remittance from, other filing fees;
(ii) Every employer who is issued a permit must pay the education
funding fee every year;
(iii) An employer who is issued a permit with a validity period of
longer than 1 year must pay the fee for each year of requested validity
at the time the permit is requested; and
(iv) Beginning in FY 2020, the fee may be adjusted once per year by
notice in the Federal Register based on the amount of inflation
according to the Consumer Price Index for All Urban Consumers (CPI-U)
since the fee was set by law at $200 on July 24, 2018.
(8) 9-11 response and biometric entry-exit fee for H-1B Visa. For
certain petitioners who employ 50 or more employees in the United
States if more than 50 percent of the petitioner's employees are in H-
1B, L-1A, or L-1B nonimmigrant status: $4,000. Collection of this fee
is scheduled to end on September 30, 2027.
(9) 9-11 response and biometric entry-exit fee for L-1 Visa. For
certain petitioners who employ 50 or more employees in the United
States, if more than 50 percent of the petitioner's employees are in H-
1B, L-1A, or L-1B nonimmigrant status: $4,500. This fee will be
collected through September 29, 2027.
(10) Claimant under section 289 of the Act. No fee.
(11) 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: $215. This fee will not be refunded if the
registration is not selected or is withdrawn.
(12) Request for Certificate of Non-Existence, G-1566. $330. For a
certification of non-existence of a naturalization record.
(13) Asylum Program Fee. $600. The Asylum Program Fee must be paid
by any petitioner filing a Petition or Application for a Nonimmigrant
Worker, Form I-129, Petition for a CNMI-Only Nonimmigrant Transitional
Worker, Form I-129CW, or an Immigrant Petition for Alien Worker, Form
I-140.
(d) Inflationary adjustment. The fees prescribed in this section
may be adjusted once per year by publication of a rule in the Federal
Register based on the amount of inflation as measured by the difference
in the CPI-U as published by the U.S. Department of Labor, U.S. Bureau
of Labor Statistics in [MONTH FINAL RULE IS EFFECTIVE] of the year of
the last fee rule and the year of the adjustment under this section.
The fee calculated under this paragraph (d) will be rounded to the
nearest $5 increment.

Sec. 106.3 Fee waivers and exemptions.

(a) Waiver of fees--(1) Eligibility for a fee waiver. Discretionary
waiver of the fees provided in paragraph (b)(1)(i) of this section are
limited as follows:
(i) The party requesting the benefit is unable to pay the
prescribed fee.
(ii) A waiver based on inability to pay is consistent with the
status or benefit sought, including benefits that require demonstration
of the applicant's ability to support himself or herself, or
individuals who seek immigration status based on a substantial
financial investment.
(2) Requesting a fee waiver. A person must submit a request for a
fee waiver on the form prescribed by USCIS in accordance with the
instructions on the form.
(3) USCIS fees that may be waived. Only the following fees may be
waived:
(i) The following fees for the following forms may be waived
without condition:
(A) Application to Replace Permanent Resident Card (Form I-90);
(B) Application for Relief Under Former Section 212(c) of the
Immigration and Nationality Act (Form I-191);
(C) Petition to Remove the Conditions of Residence (Form I-751);
(D) Application for Family Unity Benefits (Form I-817);
(E) Application for Temporary Protected Status (Form I-821);
(F) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Form I-881)

[[Page 594]]

(pursuant to section 203 of Pub. L. 105-110);
(G) Application to File Declaration of Intention (Form N-300);
(H) Request for a Hearing on a Decision in Naturalization
Proceedings (Form N-336) (under section 336 of the INA);
(I) Application for Naturalization (Form N-400);
(J) Application to Preserve Residence for Naturalization Purposes
(N-470);
(K) Application for Replacement Naturalization/Citizenship Document
(N-565);
(L) Application for Certificate of Citizenship (N-600); and
(M) Application for Citizenship and Issuance of Certificate under
section 322 of the Act (N-600K).
(ii) The following form fees may be waived based on the conditions
described in paragraphs (a)(3)(ii)(A) through (F) of this section:
(A) Petition for a CNMI-Only Nonimmigrant Transitional Worker, or
an Application to Extend/Change Nonimmigrant Status (Form I-539), only
in the case of a noncitizen applying for CW-2 nonimmigrant status;
(B) Application for Travel Document (Form I-131), when filed to
request humanitarian parole;
(C) Notice of Appeal or Motion (Form I-290B), when there is no fee
for the underlying application or petition or that fee may be waived;
(D) Notice of Appeal of Decision Under Sections 245A or 210 of the
Immigration and Nationality Act (Form I-694), if the underlying
application or petition was fee exempt, the filing fee was waived, or
was eligible for a fee waiver;
(E) Application for Employment Authorization (Form I-765), except
persons filing under category (c)(33), Deferred Action for Childhood
Arrivals (DACA); and
(F) Petition for Nonimmigrant Worker (Form I-129) or Application to
Extend/Change Nonimmigrant Status (Form I-539), only in the case of an
alien applying for E-2 CNMI Investor for an extension of stay.
(iii) Any fees associated with the filing of any benefit request
under 8 U.S.C. 1101(a)(51) and those otherwise self-petitioning under 8
U.S.C. 1154(a)(1) (VAWA self-petitioners), 8 U.S.C. 1101(a)(15)(T) (T
visas), 8 U.S.C. 1101(a)(15)(U) (U visas), 8 U.S.C. 1105a (battered
spouses of A, G, E-3, or H nonimmigrants), 8 U.S.C. 1229(b)(2) (special
rule cancellation for battered spouse or child), and 8 U.S.C. 1254a(a)
(Temporary Protected Status).
(iv) The following fees may be waived only if the person is exempt
from the public charge grounds of inadmissibility under section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4):
(A) Application for Advance Permission to Enter as Nonimmigrant
(Form I-192);
(B) Application for Waiver for Passport and/or Visa (Form I-193);
(C) Application to Register Permanent Residence or Adjust Status
(Form I-485); and
(D) Application for Waiver of Grounds of Inadmissibility (Form I-
601).
(4) Immigration Court fees. The provisions relating to the
authority of the immigration judges or the Board to waive fees
prescribed in paragraph (b) of this section in cases under their
jurisdiction can be found at 8 CFR 1003.8 and 1003.24.
(5) Fees under the Freedom of Information Act (FOIA). FOIA fees may
be waived or reduced if DHS determines that such action would be in the
public interest because furnishing the information can be considered as
primarily benefiting the general public.
(b) Humanitarian fee exemptions. Persons in the following
categories are exempt from paying certain fees as follows:
(1) Persons seeking or granted Special Immigrant Juvenile
classification who file the following forms related to the Special
Immigrant Juvenile classification or adjustment of status pursuant to
section 245(h) of the Act, 8 U.S.C. 1255(h):
(i) Application for Travel Document (Form I-131).
(ii) Notice of Appeal or Motion (Form I-290B), if filed for any
benefit request filed before adjustment of status or a motion filed for
an Application to Register Permanent Residence or Adjust Status (Form
I-485).
(iii) Application to Register Permanent Residence or Adjust Status
(Form I-485).
(iv) Application for Waiver of Ground of Inadmissibility (Form I-
601).
(v) Application for Employment Authorization (Form I-765).
(2) Persons seeking or granted T nonimmigrant status who file the
following forms related to the T nonimmigrant classification or
adjustment of status pursuant to INA section 245(l), 8 U.S.C. 1255(l):
(i) Application for Travel Document (Form I-131).
(ii) Application for Advance Permission to Enter as a Nonimmigrant
(Form I-192).
(iii) Application for Waiver of Passport and/or Visa (Form I-193).
(iv) Notice of Appeal or Motion (Form I-290B), if filed for any
benefit request filed before adjustment of status or a motion or appeal
filed for an Application to Register Permanent Residence or Adjust
Status (Form I-485) if applicable.
(v) Application to Register Permanent Residence or Adjust Status
(Form I-485).
(vi) Application to Extend/Change Nonimmigrant Status (Form I-539).
(vii) Application for Waiver of Ground of Inadmissibility (Form I-
601).
(viii) Application for Employment Authorization (Form I-765).
(3) Persons seeking or granted special immigrant visa or status as
Afghan or Iraqi translators or interpreters, Iraqi nationals employed
by or on behalf of the U.S. Government, or Afghan nationals employed by
or on behalf of the U.S. Government or employed by the ISAF and their
derivative beneficiaries, who file the following forms related to the
Special Immigrant classification or adjustment of status pursuant to
such classification:
(i) Application for Travel Document (Form I-131).
(ii) Application for Permission to Reapply for Admission into the
U.S. After Deportation or Removal (Form I-212).
(iii) Notice of Appeal or Motion (Form I-290B), if filed for any
benefit request filed before adjustment of status or a motion filed for
an Application to Register Permanent Residence or Adjust Status (Form
I-485).
(iv) Application to Register Permanent Residence or Adjust Status
(Form I-485).
(v) Application for Waiver of Ground of Inadmissibility (Form I-
601).
(vi) Application for initial Employment Authorization (Form I-765).
(4) Persons seeking or granted adjustment of status as abused
spouses and children under the Cuban Adjustment Act (CAA) and the
Haitian Refugee Immigration Fairness Act (HRIFA) are exempt from paying
the following fees for forms related to those benefits:
(i) Application for Travel Document (Form I-131).
(ii) Application for Permission to Reapply for Admission into the
U.S. After Deportation or Removal (Form I-212).
(iii) Notice of Appeal or Motion (Form I-290B), if filed for any
benefit request filed before adjustment of status or a motion filed for
an Application to Register Permanent Residence or Adjust Status (Form
I-485).
(iv) Application to Register Permanent Residence or Adjust Status
(Form I-485).
(v) Application for Waiver of Ground of Inadmissibility (Form I-
601).

[[Page 595]]

(vi) Application for Employment Authorization (Form I-765).
(5) Persons seeking U nonimmigrant status who file the following
forms related to the U nonimmigrant status are exempt from paying fees
if filed before the petitioner files an Application to Register
Permanent Residence or Adjust Status (Form I-485):
(i) Application for Advance Permission to Enter as a Nonimmigrant
(Form I-192).
(ii) Application for Waiver of Passport and/or Visa (Form I-193).
(iii) Notice of Appeal or Motion (Form I-290B).
(iv) Application to Extend/Change Nonimmigrant Status (Form I-539).
(v) Application for Employment Authorization (Form I-765) for their
initial request for principals and derivatives submitted under 8 CFR
274a.12(a)(19) and (20) and (c)(14).
(6) Person seeking or granted immigrant classification as VAWA
self-petitioners and derivatives as defined in section 101(a)(51)(A)
and (B) of the Act or those otherwise self-petitioning for immigrant
classification under section 204(a)(1) of the Act, 8 U.S.C. 1154(a)(1),
are exempt from paying the following fees for forms related to the
benefit:
(i) When the Petition for Amerasian, Widow(er), or Special
Immigrant (Form I-360) and Application to Register Permanent Residence
or Adjust Status (Form I-485) are concurrently filed or pending:
(A) Application for Travel Document (Form I-131).
(B) Application for Permission to Reapply for Admission into the
U.S. After Deportation or Removal (Form I-212).
(C) Notice of Appeal or Motion (Form I-290B) if filed for any
benefit request filed before adjustment of status or a motion filed for
an Application to Register Permanent Residence or Adjust Status (Form
I-485).
(D) Application for Waiver of Grounds of Inadmissibility (Form I-
601).
(E) Application for Employment Authorization (Form I-765) for
initial requests submitted under 8 CFR 274a.12(c)(9) and (14) and
section 204(a)(1)(K) of the Act.
(ii) When the Petition for Amerasian, Widow(er), or Special
Immigrant (Form I-360) is filed as a standalone self-petition:
(A) Notice of Appeal or Motion (Form I-290B) for a motion or appeal
of a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-
360).
(B) Application for Employment Authorization (Form I-765) for
initial requests submitted under 8 CFR 274a.12(c)(14) and section
204(a)(1)(K) of the Act, 8 U.S.C 1154(a)(1)(K).
(7) Abused spouses and children applying for benefits under the
Nicaraguan Adjustment and Central American Relief Act (NACARA) are
exempt from paying the following fees for forms related to the benefit:
(i) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100
(NACARA)) (Form I-881).
(ii) Application for Waiver of Grounds of Inadmissibility (Form I-
601).
(iii) Application for Employment Authorization (Form I-765)
submitted under 8 CFR 274a.12(c)(10).
(8) Battered spouses and children of a lawful permanent resident
(LPR) or U.S. citizen applying for cancellation of removal and
adjustment of status under section 240A(b)(2) of the Act are exempt
from paying the following fees for forms related to the benefit:
(i) Application for Waiver of Ground of Inadmissibility (Form I-
601).
(ii) Application for Employment Authorization (Form I-765) for
their initial request under 8 CFR 274a.12(c)(10).
(9) Refugees, persons paroled as refugees, or lawful permanent
residents who obtained such status as refugees in the United States are
exempt from paying the following fees:
(i) Application for Travel Document (Form I-131).
(ii) Application for Carrier Documentation (Form I-131A).
(iii) Application for Employment Authorization (Form I-765).
(iv) Application to Register Permanent Residence or Adjust Status
(Form I-485).
(c) Director's waiver or exemption exception. The Director of USCIS
may authorize the waiver of or exemption from, in whole or in part, a
form fee required by Sec. 106.2 that is not otherwise waivable under
this section, if the Director determines that such action is in the
public interest and consistent with the applicable law. This
discretionary authority may be delegated only to the USCIS Deputy
Director.

Sec. 106.4 Premium processing service.

(a) General. A person may submit a request to USCIS for premium
processing of certain immigration benefit requests, subject to
processing timeframes and fees, as described in this section.
(b) Submitting a request. A request must be submitted on the form
and in the manner prescribed by USCIS in the form instructions. If the
request for premium processing is submitted together with the
underlying immigration benefit request, all required fees in the
correct amount must be paid. The fee to request premium processing
service may not be waived and must be paid in addition to other filing
fees. USCIS may require the premium processing service fee be paid in a
separate remittance from other filing fees and preclude combined
payments in the applicable form instructions.
(c) Designated benefit requests and fee amounts. Benefit requests
designated for premium processing and the corresponding fees to request
premium processing service are as follows:
(1) Application for classification of a nonimmigrant described in
section 101(a)(15)(E)(i), (ii), or (iii) of the INA, 8 U.S.C.
1101(a)(15)(E)(i), (ii), or (iii): $2,500.
(2) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b),
or section 222(a) of the Immigration Act of 1990, Public Law 101-649:
$2,500.
(3) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(b): $1,500.
(4) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(iii) of the INA, 8 U.S.C. 1101(a)(15)(H)(iii):
$2,500.
(5) Petition for classification of a nonimmigrant described in
section 101(a)(15)(L) of the INA, 8 U.S.C. 1101(a)(15(L): $2,500.
(6) Petition for classification of a nonimmigrant described in
section 101(a)(15)(O)(i) or (ii) of the INA, 8 U.S.C.
1101(a)(15)(O)(i): $2,500.
(7) Petition for classification of a nonimmigrant described in
section 101(a)(15)(P)(i), (ii), or (iii) of the INA, 8 U.S.C.
1101(a)(15)(P)(i): $2,500.
(8) Petition for classification of a nonimmigrant described in
section 101(a)(15)(Q) of the INA, 8 U.S.C. 1101(a)(15)(Q): $2,500.
(9) Petition for classification of a nonimmigrant described in
section 101(a)(15)(R) of the INA, 8 U.S.C. 1101(a)(15)(R): $1,500.
(10) Application for classification of a nonimmigrant described in
section 214(e) of the INA, 8 U.S.C. 1184(e): $2,500.
(11) Petition for classification under section 203(b)(1)(A) of the
INA, 8 U.S.C. 1153(b)(1)(A): $2,500.
(12) Petition for classification under section 203(b)(1)(B) of the
INA, 8 U.S.C. 1153(b)(1)(B): $2,500.
(13) Petition for classification under section 203(b)(2)(A) of the
INA, 8 U.S.C. 1153(b)(2)(A) not involving a waiver under section
203(b)(2)(B) of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500.

[[Page 596]]

(14) Petition for classification under section 203(b)(3)(A)(i) of
the INA, 8 U.S.C. 1153(b)(3)(A)(i): $2,500.
(15) Petition for classification under section 203(b)(3)(A)(ii) of
the INA, 8 U.S.C. 1153(b)(3)(A)(ii): $2,500.
(16) Petition for classification under section 203(b)(3)(A)(iii) of
the INA, 8 U.S.C. 1153(b)(3)(A)(iii): $2,500.
(17) Petition for classification under section 203(b)(1)(C) of the
INA, 8 U.S.C. 1153(b)(1)(C): $2,500.
(18) Petition for classification under section 203(b)(2) of the
INA, 8 U.S.C. 1153(b)(2), involving a waiver under section 203(b)(2)(B)
of the INA, 8 U.S.C. 1153(b)(2)(B): $2,500.
(19) Application under section 248 of the INA, 8 U.S.C. 1258, to
change status to a classification described in section 101(a)(15)(F),
(J), or (M) of the INA, 8 U.S.C. 1101(a)(15)(F), (J), or (M): $1,750.
(20) Application under section 248 of the INA, 8 U.S.C. 1258, to
change status to be classified as a dependent of a nonimmigrant
described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the
INA, 8 U.S.C. 1101(a)(15)(E), (H), (L), (O), (P), or (M), or to extend
stay in such classification: $1,750.
(21) Application for employment authorization: $1,500.
(d) Fee adjustments. The fee to request premium processing service
may be adjusted by notification in the Federal Register on a biennial
basis based on the percentage by which the Consumer Price Index for All
Urban Consumers for the month of June preceding the date on which such
adjustment takes effect exceeds the Consumer Price Index for All Urban
Consumers for the same month of the second preceding calendar year.
(e) Processing timeframes. The processing timeframes for a request
for premium processing are as follows:
(1) Application for classification of a nonimmigrant described in
section 101(a)(15)(E)(i), (ii), or (iii) of the INA: 15 business days.
(2) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the
Immigration Act of 1990, Public Law 101-649: 15 business days.
(3) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(ii)(b) of the INA: 15 business days.
(4) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(iii) of the INA: 15 business days.
(5) Petition for classification of a nonimmigrant described in
section 101(a)(15)(L) of the INA: 15 business days.
(6) Petition for classification of a nonimmigrant described in
section 101(a)(15)(O)(i) or (ii) of the INA: 15 business days.
(7) Petition for classification of a nonimmigrant described in
section 101(a)(15)(P)(i), (ii), or (iii) of the INA: 15 business days.
(8) Petition for classification of a nonimmigrant described in
section 101(a)(15)(Q) of the INA: 15 business days.
(9) Petition for classification of a nonimmigrant described in
section 101(a)(15)(R) of the INA: 15 business days.
(10) Application for classification of a nonimmigrant described in
section 214(e) of the INA: 15 business days.
(11) Petition for classification under section 203(b)(1)(A) of the
INA: 15 business days.
(12) Petition for classification under section 203(b)(1)(B) of the
INA: 15 business days.
(13) Petition for classification under section 203(b)(2)(A) of the
INA not involving a waiver under section 203(b)(2)(B) of the INA: 15
business days.
(14) Petition for classification under section 203(b)(3)(A)(i) of
the INA: 15 business days.
(15) Petition for classification under section 203(b)(3)(A)(ii) of
the INA: 15 business days.
(16) Petition for classification under section 203(b)(3)(A)(iii) of
the INA: 15 business days.
(17) Petition for classification under section 203(b)(1)(C) of the
INA: 45 business days.
(18) Petition for classification under section 203(b)(2) of the INA
involving a waiver under section 203(b)(2)(B) of the INA: 45 business
days.
(19) Application under section 248 of the INA to change status to a
classification described in section 101(a)(15)(F), (J), or (M) of the
INA: 30 business days.
(20) Application under section 248 of the INA to change status to
be classified as a dependent of a nonimmigrant described in section
101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay
in such classification: 30 business days.
(21) Application for employment authorization: 30 business days.
(22) For the purpose of this section a business day is a day that
the Federal Government is open for business, and does not include
weekends, federally observed holidays, or days on which Federal
Government offices are closed, such as for weather-related or other
reasons. The closure may be nationwide or in the region where the
adjudication of the benefit for which premium processing is sought will
take place.
(f) Processing requirements and refunds. (1) USCIS will issue an
approval notice, denial notice, a notice of intent to deny, or a
request for evidence within the premium processing timeframe.
(2) Premium processing timeframes will commence:
(i) For those benefits described in paragraphs (e)(1) through (16)
of this section, on the date the form prescribed by USCIS, together
with the required fee(s), are received by USCIS.
(ii) For those benefits described in paragraphs (e)(17) through
(21) of this section, on the date that all prerequisites for
adjudication, the form prescribed by USCIS, and fee(s) are received by
USCIS.
(3) In the event USCIS issues a notice of intent to deny or a
request for evidence, the premium processing timeframe will stop and
will recommence with a new timeframe as specified in paragraphs (e)(1)
through (21) of this section on the date that USCIS receives a response
to the notice of intent to deny or the request for evidence.
(4) Except as provided in paragraph (f)(5) of this section, USCIS
will refund the premium processing service fee but continue to process
the case if USCIS does not take adjudicative action described in
paragraph (f)(1) of this section within the applicable processing
timeframe as required in paragraph (e) of this section.
(5) USCIS may retain the premium processing fee and not take an
adjudicative action described in paragraph (f)(1) of this section on
the request within the applicable processing timeframe, and not notify
the person who filed the request, if USCIS opens an investigation for
fraud or misrepresentation relating to the immigration benefit request.
(g) Availability. (1) USCIS will announce by its official internet
website, currently https://www.uscis.gov, the benefit requests
described in paragraph (c) of this section for which premium processing
may be requested, the dates upon which such availability commences or
ends, or any conditions that may apply.
(2) USCIS may suspend the availability of premium processing for
immigration benefit requests designated for premium processing if
circumstances prevent the completion of processing of a significant
number of such requests within the applicable processing timeframe.

[[Page 597]]

Sec. 106.5 Authority to certify records.

The Director of USCIS, or such officials as he or she may
designate, may certify records when authorized under 5 U.S.C. 552 or
any other law to provide such records.

Sec. 106.6 DHS severability.

The provisions of this part are separate and severable from one
another. If any provision is stayed or determined to be invalid, the
remaining provisions will continue in effect.

PART 204--IMMIGRANT PETITIONS

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

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1324a, 1641; 8 CFR part 2.

0
8. Section 204.3 is amended by:
0
a. Revising and republishing the definitions of ``Advanced processing
application'' and ``Orphan petition'' in paragraph (b);
0
b. Revising and republishing paragraph (d) introductory text; and
0
c. Revising paragraphs (h)(3), (7), (13), and (14).
The revisions and republications read as follows:

Sec. 204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-
Hague Adoption Convention cases).

* * * * *
(b) * * *
Advanced processing application means Form I-600A (Application for
Advanced Processing of Orphan Petition) completed in accordance with
the form's instructions and submitted with the required supporting
documentation and the fee as required in 8 CFR 106.2. The application
must be signed in accordance with the form's instructions by the
married petitioner and spouse, or by the unmarried petitioner.
* * * * *
Orphan petition means Form I-600 (Petition to Classify Orphan as an
Immediate Relative). The petition must be completed in accordance with
the form's instructions and submitted with the required supporting
documentation and, if there is not a pending, or currently valid and
approved advanced processing application, the fee as required in 8 CFR
106.2. The petition must be signed in accordance with the form's
instructions by the married petitioner and spouse, or the unmarried
petitioner.
* * * * *
(d) Supporting documentation for a petition for an identified
orphan. Any document not in the English language must be accompanied by
a certified English translation. If an orphan has been identified for
adoption and the advanced processing application is pending, the
prospective adoptive parents may file the orphan petition at the USCIS
office where the application is pending. The prospective adoptive
parents who have an approved advanced processing application must file
an orphan petition and all supporting documents within 15 months of the
date of the approval of the advanced processing application. If the
prospective adoptive parents fail to file the orphan petition within
the approval validity period of the advanced processing application,
the advanced processing application will be deemed abandoned pursuant
to paragraph (h)(7) of this section. If the prospective adoptive
parents file the orphan petition after the approval period of the
advanced processing application has expired, the petition will be
denied pursuant to paragraph (h)(13) of this section. Prospective
adoptive parents who do not have an advanced processing application
approved or pending may file the application and petition concurrently
on one Form I-600 if they have identified an orphan for adoption. An
orphan petition must be accompanied by full documentation as follows:
* * * * *
(h) * * *
(3) Advanced processing application approved. If the advanced
processing application is approved:
(i) The prospective adoptive parents will be advised in writing. A
notice of approval expires 15 months after the date on which USCIS
received the Federal Bureau of Investigation (FBI) response on the
applicant's, and any additional adult member of the household's,
biometrics, unless approval is revoked. If USCIS received the responses
on different days, the 15-month period begins on the earliest response
date. The notice of approval will specify the expiration date.
(ii) USCIS may extend the validity period for the approval of a
Form I-600A if requested in accordance with 8 CFR 106.2(a)(31). An
applicant may not file a Form I-600A Supplement 3 seeking extension of
an approval notice more than 90 days before the expiration of the
validity period for the Form I-600A approval but must do so on or
before the date on which the validity period expires if the applicant
seeks an extension.
(iii) If the Form I-600A approval is for more than one orphan, the
prospective adoptive parents may file a petition for each of the
additional children, to the maximum number approved.
(iv) It does not guarantee that the orphan petition will be
approved.
* * * * *
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within the approval validity period of the
advanced processing application. If an orphan petition is not properly
filed within 15 months of the approval date of the advanced processing
application:
(i) The application will be deemed abandoned;
(ii) Supporting documentation will be returned to the prospective
adoptive parents, except for documentation submitted by a third party
which will be returned to the third party, and documentation relating
to the biometric checks;
(iii) The director will dispose of documentation relating to
biometrics checks in accordance with current policy; and
(iv) Such abandonment will be without prejudice to a new filing at
any time with fee.
* * * * *
(13) Orphan petition denied: petitioner files orphan petition after
the approval of the advanced processing application has expired. If the
petitioner files the orphan petition after the advanced processing
application has expired, the petition will be denied. This action will
be without prejudice to a new filing at any time with fee.
(14) Revocation. (i) The approval of an advanced processing
application or an orphan petition shall be automatically revoked in
accordance with 8 CFR 205.1 if an applicable reason exists. The
approval of an advanced processing application or an orphan petition
shall be revoked if the director becomes aware of information that
would have resulted in denial had it been known at the time of
adjudication. Such a revocation or any other revocation on notice shall
be made in accordance with 8 CFR 205.2.
(ii) The approval of a Form I-600A or Form I-600 combination filing
is automatically revoked if before the final decision on a
beneficiary's application for admission with an immigrant visa or for
adjustment of status:
(A) The marriage of the applicant terminates; or
(B) An unmarried applicant marries.
(iii) Revocation is without prejudice to the filing of a new Form
I-600A or Form I-600 combination filing, with fee, accompanied by a new
or updated home study, reflecting the change in marital status. If a
Form I-600 had already been

[[Page 598]]

filed based on the approval of the prior Form I-600A, a new Form I-600
must also be filed with the new Form I-600A under this paragraph
(h)(14). The new Form I-600 will be adjudicated only if the new Form I-
600A is approved.
* * * * *
0
9. Section 204.5 is amended by republishing paragraphs (p)(4) heading
and (p)(4)(i) to read as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *
(p) * * *
(4) Application for employment authorization. (i) To request
employment authorization, an eligible applicant described in paragraph
(p)(1), (2), or (3) of this section must:
(A) File an application for employment authorization (Form I-765),
with USCIS, in accordance with 8 CFR 274a.13(a) and the form
instructions.
(B) Submit biometric information as may be provided in the
applicable form instructions.
* * * * *
0
10. Section 204.312 is amended by revising and republishing paragraph
(e)(3)(i) and paragraph (e)(3)(ii) introductory text to read as
follows:

Sec. 204.312 Adjudication of the Form I-800A.

* * * * *
(e) * * *
(3)(i) If the 15-month validity period for a Form I-800A approval
is about to expire, the applicant:
(A) May file Form I-800A Supplement 3 as described in 8 CFR
106.2(a)(31) to request an extension.
(B) May not file a Form I-800A Supplement 3 seeking extension of an
approval notice more than 90 days before the expiration of the validity
period for the Form I-800A approval, but must do so on or before the
date on which the validity period expires if the applicant seeks an
extension.
(ii) Any Form I-800A Supplement 3 that is filed to obtain an
extension or update of the approval of a Form I-800A or to change of
Hague Convention countries must be accompanied by:
* * * * *
0
11. Section 204.313 is amended by revising and republishing paragraph
(a) to read as follows:

Sec. 204.313 Filing and adjudication of a Form I-800.

(a) When to file. Once a Form I-800A has been approved and the
Central Authority has proposed placing a child for adoption by the
petitioner, the petitioner may file the Form I-800. The petitioner must
complete the Form I-800 in accordance with the instructions that
accompany the Form I-800 and sign the Form I-800 personally. In the
case of a married petitioner, one spouse cannot sign for the other,
even under a power of attorney or similar agency arrangement. The
petitioner may then file the Form I-800 with the stateside or overseas
USCIS office or the visa issuing post that has jurisdiction under Sec.
204.308(b) to adjudicate the Form I-800, together with the evidence
specified in this section and the filing fee specified in 8 CFR 106.2,
if more than one Form I-800 is filed for children who are not birth
siblings.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
12. The authority citation for part 212 is revised to read as follows:

Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and
note, 1102, 1103, 1182 and note, 1184, 1185 note (sec. 7209, Pub. L.
108-458, 118 Stat. 3638), 1187, 1223, 1225, 1226, 1227, 1255, 1359;
8 CFR part 2. Section 212.1(q) also issued under sec. 702, Pub. L.
110-229, 122 Stat. 754, 854.

0
13. Section 212.19 is amended by revising and republishing paragraphs
(b)(1), (c)(1), (e), (h)(1), and (j) to read as follows:

Sec. 212.19 Parole for entrepreneurs.

* * * * *
(b) * * *
(1) Filing of initial parole request form. An alien seeking an
initial grant of parole as an entrepreneur of a start-up entity must
file Form I-941, Application for Entrepreneur Parole, with USCIS, with
the required fee, and supporting documentary evidence in accordance
with this section and the form instructions, demonstrating eligibility
as provided in paragraph (b)(2) of this section.
* * * * *
(c) * * *
(1) Filing of re-parole request form. Before expiration of the
initial period of parole, an entrepreneur parolee may request an
additional period of parole based on the same start-up entity that
formed the basis for his or her initial period of parole granted under
this section. To request such parole, an entrepreneur parolee must
timely file an application for entrepreneur parole with USCIS on the
form prescribed by USCIS with the required fee and supporting
documentation in accordance with the form instructions, demonstrating
eligibility as provided in paragraph (c)(2) of this section.
* * * * *
(e) Collection of biometric information. An alien seeking an
initial grant of parole or re-parole will be required to submit
biometric information. An alien seeking re-parole may be required to
submit biometric information.
* * * * *
(h) * * *
(1) The entrepreneur's spouse and children who are seeking parole
as derivatives of such entrepreneur must individually file Form I-131,
Application for Travel Document. Such application must also include
evidence that the derivative has a qualifying relationship to the
entrepreneur and otherwise merits a grant of parole in the exercise of
discretion. Such spouse or child will be required to appear for
collection of biometrics in accordance with the form instructions or
upon request.
* * * * *
(j) Reporting of material changes. An alien granted parole under
this section must immediately report any material change(s) to USCIS.
If the entrepreneur will continue to be employed by the start-up entity
and maintain a qualifying ownership interest in the start-up entity,
the entrepreneur must submit a form prescribed by USCIS, with any
applicable fee in accordance with the form instructions to notify USCIS
of the material change(s). The entrepreneur parolee must immediately
notify USCIS in writing if they will no longer be employed by the
start-up entity or ceases to possess a qualifying ownership stake in
the start-up entity.
* * * * *

PART 214--NONIMMIGRANT CLASSES

0
14. The authority citation for part 214 continues to read as follows:

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec.
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).

0
15. Section 214.1 is amended by republishing paragraph (c)(5) to read
as follows:

Sec. 214.1 Requirements for admission, extension, and maintenance of
status.

* * * * *

[[Page 599]]

(c) * * *
(5) Decision on application for extension or change of status.
Where an applicant or petitioner demonstrates eligibility for a
requested extension, it may be granted at the discretion of USCIS. The
denial of an application for extension of stay may not be appealed.
* * * * *
0
16. Section 214.2 is amended by:
0
a. Revising and republishing paragraphs (e)(8)(iii) through (v),
(e)(23)(viii), (h)(2)(i)(A), (h)(2)(ii), (h)(5)(i)(B), and (h)(19)(i)
introductory text;
0
b. Revising paragraph (m)(14)(ii) introductory text;
0
c. Revising and republishing paragraphs (o)(2)(iv)(F), (p)(2)(iv)(F),
and (q)(5)(ii);
0
d. Republishing the definition for ``Petition'' in paragraph (r)(3);
0
e. Revising paragraph (r)(5);
0
f. Republishing paragraph (w)(5) and (w)(15)(iii); and
0
g. Revising paragraph (w)(16).

The revisions and republications read as follows:

Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.

* * * * *
(e) * * *
(8) * * *
(iii) Substantive changes. Approval of USCIS must be obtained where
there will be a substantive change in the terms or conditions of E
status. The treaty alien must file a new application in accordance with
the instructions on the form prescribed by USCIS requesting extension
of stay in the United States, plus evidence of continued eligibility
for E classification in the new capacity. Or the alien may obtain a
visa reflecting the new terms and conditions and subsequently apply for
admission at a port-of-entry. USCIS will deem there to have been a
substantive change necessitating the filing of a new application where
there has been a fundamental change in the employing entity's basic
characteristics, such as a merger, acquisition, or sale of the division
where the alien is employed.
(iv) Non-substantive changes. Neither prior approval nor a new
application is required if there is no substantive, or fundamental,
change in the terms or conditions of the alien's employment that would
affect the alien's eligibility for E classification. Further, prior
approval is not required if corporate changes occur which do not affect
the previously approved employment relationship, or are otherwise non-
substantive. To facilitate admission, the alien may:
(A) Present a letter from the treaty-qualifying company through
which the alien attained E classification explaining the nature of the
change;
(B) Request a new approval notice reflecting the non-substantive
change by filing an application with a description of the change; or
(C) Apply directly to Department of State for a new E visa
reflecting the change. An alien who does not elect one of the three
options contained in paragraphs (e)(8)(iv)(A) through (C) of this
section, is not precluded from demonstrating to the satisfaction of the
immigration officer at the port-of-entry in some other manner, his or
her admissibility under section 101(a)(15)(E) of the Act.
(v) Advice. To request advice from USCIS as to whether a change is
substantive, an alien may file an application with a complete
description of the change. In cases involving multiple employees, an
alien may request that USCIS determine if a merger or other corporate
restructuring requires the filing of separate applications by filing a
single application and attaching a list of the related receipt numbers
for the employees involved and an explanation of the change or changes.
* * * * *
(23) * * *
(viii) Information for background checks. USCIS may require an
applicant for E-2 CNMI Investor status, including but not limited to
any applicant for derivative status as a spouse or child, to submit
biometrics as required under 8 CFR 103.16.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) General. A United States employer seeking to classify an alien
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition
on the form prescribed by USCIS in accordance with the form
instructions.
* * * * *
(ii) Multiple beneficiaries. Up to 25 named beneficiaries may be
included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries
will be performing the same service, or receiving the same training,
for the same period, and in the same location. If more than 25 named
beneficiaries are being petitioned for, an additional petition is
required. Petitions for H-2A and H-2B workers from countries not
designated in accordance with paragraph (h)(6)(i)(E) of this section
must be filed separately.
* * * * *
(5) * * *
(i) * * *
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same temporary labor
certification may not exceed the number of workers indicated on that
document. A single petition can include more than one named beneficiary
if the total number is 25 or less and does not exceed the number of
positions indicated on the relating temporary labor certification.
* * * * *
(19) * * *
(i) A United States employer (other than an exempt employer defined
in paragraph (h)(19)(iii) of this section, or an employer filing a
petition described in paragraph (h)(19)(v) of this section) who files a
petition or application must include the additional American
Competitiveness and Workforce Improvement Act (ACWIA) fee referenced in
8 CFR 106.2, if the petition is filed for any of the following
purposes:
* * * * *
(m) * * *
(14) * * *
(ii) Application. An M-1 student must apply for permission to
accept employment for practical training on Form I-765, with fee as
contained in 8 CFR part 106, accompanied by a properly endorsed Form I-
20 by the designated school official for practical training. The
application must be submitted before the program end date listed on the
student's Form I-20 but not more than 90 days before the program end
date. The designated school official must certify on Form I-538 that:
* * * * *
(o) * * *
(2) * * *
(iv) * * *
(F) Multiple beneficiaries. More than one O-2 accompanying alien
may be included on a petition if they are assisting the same O-1 alien
for the same events or performances, during the same period, and in the
same location. Up to 25 named beneficiaries may be included per
petition.
* * * * *
(p) * * *
(2) * * *
(iv) * * *
(F) Multiple beneficiaries. More than one beneficiary may be
included in a P petition if they are members of a team or group, or if
they will provide essential support to P-1, P-2, or P-3

[[Page 600]]

beneficiaries performing in the same location and in the same
occupation. Up to 25 named beneficiaries may be included per petition.
* * * * *
(q) * * *
(5) * * *
(ii) Petition for multiple participants. The petitioner may include
up to 25 named participants on a petition. The petitioner shall include
the name, date of birth, nationality, and other identifying information
required on the petition for each participant. The petitioner must also
indicate the United States consulate at which each participant will
apply for a Q-1 visa. For participants who are visa-exempt under 8 CFR
212.1(a), the petitioner must indicate the port of entry at which each
participant will apply for admission to the United States.
* * * * *
(r) * * *
(3) * * *
Petition means the form or as may be prescribed by USCIS, a
supplement containing attestations required by this section, and the
supporting evidence required by this part.
* * * * *
(5) Extension of stay or readmission. An R-1 alien who is
maintaining status or is seeking readmission and who satisfies the
eligibility requirements of this section may be granted an extension of
R-1 stay or readmission in R-1 status for the validity period of the
petition, up to 30 months, provided the total period of time spent in
R-1 status does not exceed a maximum of 5 years. A Petition for a
Nonimmigrant Worker to request an extension of R-1 status must be filed
by the employer with a supplement prescribed by USCIS containing
attestations required by this section, the fee specified in 8 CFR part
106, and the supporting evidence, in accordance with the applicable
form instructions.
* * * * *
(w) * * *
(5) Petition requirements. An employer who seeks to classify an
alien as a CW-1 worker must file a petition with USCIS and pay the
requisite petition fee plus the CNMI education funding fee and the
fraud prevention and detection fee as prescribed in the form
instructions and 8 CFR part 106. If the beneficiary will perform
services for more than one employer, each employer must file a separate
petition with fees with USCIS.
* * * * *
(15) * * *
(iii) If the eligible spouse and/or minor child(ren) are present in
the CNMI, the spouse or child(ren) may apply for CW-2 dependent status
on Form I-539 (or such alternative form as USCIS may designate) in
accordance with the form instructions. The CW-2 status may not be
approved until approval of the CW-1 petition.
(16) Biometrics and other information. The beneficiary of a CW-1
petition or the spouse or child applying for a grant or extension of
CW-2 status, or a change of status to CW-2 status, must submit
biometric information as requested by USCIS.
* * * * *
0
17. Section 214.14 is amended by revising and republishing paragraph
(c)(1) introductory text to read as follows:

Sec. 214.14 Alien victims of certain qualifying criminal activity.

* * * * *
(c) * * *
(1) Filing a petition. USCIS has sole jurisdiction over all
petitions for U nonimmigrant status. An alien seeking U-1 nonimmigrant
status must submit a Petition for U Nonimmigrant Status on the form
prescribed by USCIS, and initial evidence to USCIS in accordance with
this paragraph (c)(1) and the form instructions. A petitioner who
received interim relief is not required to submit initial evidence with
a Petition for U Nonimmigrant Status if he or she wishes to rely on the
law enforcement certification and other evidence that was submitted
with the request for interim relief.
* * * * *

PART 240--VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND
SPECIAL RULE CANCELLATION OF REMOVAL

0
18. The authority citation for part 240 continues to read as follows:

Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat.
2681); 8 CFR part 2.

0
19. Section 240.63 is amended by revising and republishing paragraph
(a) to read as follows:

Sec. 240.63 Application process.

(a) Form and fees. Except as provided in paragraph (b) of this
section, the application must be made on the form prescribed by USCIS
for this program and filed in accordance with the instructions for that
form. An applicant who submitted to EOIR a completed, Application for
Suspension of Deportation, before the effective date of the form
prescribed by USCIS may apply with USCIS by submitting the completed
Application for Suspension of Deportation attached to a completed first
page of the application. Each application must be filed with the
required fees as provided in 8 CFR 106.2.
* * * * *

PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES

0
20. The authority citation for part 244 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

0
21. Section 244.6 is revised and republished to read as follows:

Sec. 244.6 Application.

(a) An application for Temporary Protected Status must be submitted
in accordance with the form instructions, the applicable country-
specific Federal Register notice that announces the procedures for TPS
registration or re-registration and, except as otherwise provided in
this section, with the appropriate fees as described in 8 CFR part 106.
(b) An applicant for TPS may also request an employment
authorization document pursuant to 8 CFR part 274a by filing an
Application for Employment Authorization in accordance with the form
instructions and in accordance with 8 CFR 106.2 and 106.3.
0
22. Section 244.17 is amended by republishing paragraph (a) to read as
follows:

Sec. 244.17 Periodic registration.

(a) Aliens granted Temporary Protected Status must re-register
periodically in accordance with USCIS instructions. Such registration
applies to nationals of those foreign states designated for more than
one year by DHS or where a designation has been extended for a year or
more. Applicants for re-registration must apply during the period
provided by USCIS. Re-registration applicants do not need to pay the
fee that was required for initial registration except the biometric
services fee, unless that fee is waived in the applicable form
instructions, and if requesting an employment authorization document,
the application fee for an Application for Employment Authorization. By
completing the application, applicants attest to their continuing
eligibility. Such applicants do not need to submit additional

[[Page 601]]

supporting documents unless USCIS requests that they do so.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

0
23. The authority citation for part 245 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1252, 1255; Pub. L. 105-
100, section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section
902, 112 Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR
part 2.

0
24. Section 245.1 is amended by:
0
a. Revising paragraph (f); and
0
b. Removing the parenthetical authority citation at the end of the
section.

The revision reads as follows:

Sec. 245.1 Eligibility.

* * * * *
(f) Concurrent applications to overcome grounds of inadmissibility.
Except as provided in 8 CFR parts 235 and 249, an application under
this part shall be the sole method of requesting the exercise of
discretion under sections 212(g), (h), (i), and (k) of the Act, as they
relate to the inadmissibility of an alien in the United States.
* * * * *

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE
IMMIGRATION AND NATIONALITY ACT

0
25. The authority citation for part 245a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

0
26. Section 245a.2 is amended by republishing paragraph (e)(3) to read
as follows:

Sec. 245a.2 Application for temporary residence.

* * * * *
(e) * * *
(3) A separate application must be filed by each applicant with the
fees required by 8 CFR 106.2.
* * * * *
0
27. Section 245a.3 is amended by republishing paragraph (d)(3) to read
as follows:

Sec. 245a.3 Application for adjustment from temporary to permanent
resident status.

* * * * *
(d) * * *
(3) A separate application must be filed by each applicant with the
fees required by 8 CFR 106.2.
* * * * *
0
28. Section 245a.4 is amended by republishing paragraph (b)(5)(iii) to
read as follows:

Sec. 245a.4 Adjustment to lawful resident status of certain nationals
of countries for which extended voluntary departure has been made
available.

* * * * *
(b) * * *
(5) * * *
(iii) A separate application must be filed by each applicant with
the fees required by 8 CFR 106.2.
* * * * *
0
29. Section 245a.12 is amended by republishing paragraph (d)
introductory text to read as follows:

Sec. 245a.12 Filing and applications.

* * * * *
(d) Application and supporting documentation. Each applicant for
LIFE Legalization adjustment of status must submit the form prescribed
by USCIS completed in accordance with the form instructions accompanied
by the required evidence.
* * * * *

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES

0
30. The authority citation for part 264 continues to read as follows:

Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.

0
31. Section 264.5 is amended by revising and republishing paragraph (a)
to read as follows:

Sec. 264.5 Application for a replacement Permanent Resident Card.

(a) Filing instructions. A request to replace a Permanent Resident
Card must be filed in accordance with the appropriate form instructions
and with the fee specified in 8 CFR 106.2.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
32. The authority citation for part 274a is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; Pub. L.
101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 114-74, 129
Stat. 599 (28 U.S.C. 2461 note); 8 CFR part 2.

0
33. Section 274a.12 is amended by revising and republishing paragraphs
(b)(9), (13), and (14) to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *
(b) * * *
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3),
pursuant to 8 CFR 214.2(h), or a nonimmigrant specialty occupation
worker pursuant to section 101(a)(15)(H)(i)(b)(1) of the Act. An alien
in this status may be employed only by the petitioner through whom the
status was obtained. In the case of a professional H-2B athlete who is
traded from one organization to another organization, employment
authorization for the player will automatically continue for a period
of 30 days after acquisition by the new organization, within which time
the new organization is expected to file a new petition for H-2B
classification. If a new petition is not filed within 30 days,
employment authorization will cease. If a new petition is filed within
30 days, the professional athlete's employment authorization will
continue until the petition is adjudicated. If the new petition is
denied, employment authorization will cease. In the case of a
nonimmigrant with H-1B status, employment authorization will
automatically continue upon the filing of a qualifying petition under 8
CFR 214.2(h)(2)(i)(H) until such petition is adjudicated, in accordance
with section 214(n) of the Act and 8 CFR 214.2(h)(2)(i)(H).
* * * * *
(13) An alien having extraordinary ability in the sciences, arts,
education, business, or athletics (O-1), and an accompanying alien (O-
2), pursuant to 8 CFR 214.2(o). An alien in this status may be employed
only by the petitioner through whom the status was obtained. In the
case of a professional O-1 athlete who is traded from one organization
to another organization, employment authorization for the player will
automatically continue for a period of 30 days after the acquisition by
the new organization, within which time the new organization is
expected to file a new petition for O nonimmigrant classification. If a
new petition is not filed within 30 days, employment authorization will
cease. If a new petition is filed within 30 days, the professional
athlete's employment authorization will continue until the petition is
adjudicated. If the new petition is denied, employment authorization
will cease.
(14) An athlete, artist, or entertainer (P-1, P-2, or P-3),
pursuant to 8 CFR 214.2(p). An alien in this status may be employed
only by the petitioner through whom the status was obtained. In the
case of a professional P-1 athlete who is traded from one organization
to another organization, employment authorization for the player will
automatically continue for a period of 30 days after the acquisition by
the new

[[Page 602]]

organization, within which time the new organization is expected to
file a new petition for P-1 nonimmigrant classification. If a new
petition is not filed within 30 days, employment authorization will
cease. If a new petition is filed within 30 days, the professional
athlete's employment authorization will continue until the petition is
adjudicated. If the new petition is denied, employment authorization
will cease.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-27066 Filed 1-3-23; 8:45 am]
BILLING CODE 9111-97-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.