Notice of EB-5 Regional Center Integrity Fund Fee, 13141-13145 [2023-04295]

Download as PDF Federal Register / Vol. 88, No. 41 / Thursday, March 2, 2023 / Notices Notice is hereby given that, in a letter dated January 9, 2023, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5207 (the Stafford Act), as follows: SUPPLEMENTARY INFORMATION: I have determined that the emergency conditions in certain areas of the State of California resulting from severe winter storms, flooding, and mudslides beginning on January 8, 2023, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the Stafford Act’’). Therefore, I declare that such an emergency exists in the State of California. You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses. Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act. ddrumheller on DSK120RN23PROD with NOTICES1 The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Andrew F. Grant, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency. The following areas of the State of California have been designated as adversely affected by this declared emergency: El Dorado, Los Angeles, Mariposa, Mendocino, Merced, Monterey, Napa, Placer, Riverside, Sacramento, San Bernardino, San Mateo, Santa Clara, Santa Cruz, Sonoma, Stanislaus, and Ventura Counties for emergency protective measures (Category B), limited to direct federal assistance, under the Public Assistance program. The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); VerDate Sep<11>2014 18:21 Mar 01, 2023 Jkt 259001 13141 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. number above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: Deanne Criswell, Administrator, Federal Emergency Management Agency. A. EB–5 Reform and Integrity Act of 2022 On March 15, 2022, the President signed into law the EB–5 Reform and Integrity Act of 2022 (the 2022 Act), Div. BB of the Consolidated Appropriations Act, 2022, Public Law 117–103. Among other things, the 2022 Act immediately repealed the former authorizing statutory provisions under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act 1993, Public Law 102–395, 106 Stat. 1828, § 610, and added new authorizing provisions to the Immigration and Nationality Act, substantially reforming the Regional Center Program effective May 14, 2022. The reformed Regional Center Program is authorized through September 30, 2027. The Regional Center Program makes visas available to qualified immigrants (and the eligible spouses and children of such immigrants) who pool their investments with other qualified immigrants in a ‘‘regional center’’ in the United States. See INA section 203(b)(5)(E), 8 U.S.C. 1153(b)(5)(E). USCIS designates regional centers based on a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment in their requested geographic region. Id. [FR Doc. 2023–04287 Filed 3–1–23; 8:45 am] BILLING CODE 9111–23–P DEPARTMENT OF HOMELAND SECURITY [CIS No. 2725–22; DHS Docket No. USCIS– 2023–0001] RIN 1615–ZB97 Notice of EB–5 Regional Center Integrity Fund Fee U.S. Citizenship and Immigration Services, Department of Homeland Security. ACTION: Notice of integrity fund fee. AGENCY: The U.S. Citizenship and Immigration Services (USCIS) is announcing a fee to be collected by USCIS. The EB–5 Reform and Integrity Act of 2022 (the 2022 Act) requires USCIS to establish a special fund to be known as the EB–5 Integrity Fund to be primarily used by USCIS in the administration of the Regional Center Program. USCIS must collect a fee of $20,000 or $10,000, depending on certain factors established by the 2022 Act, to finance the EB–5 Integrity Fund from each designated regional center. This notice explains how regional centers should determine the amount of the fee and provides the process for how it is to be paid. DATES: The first fee payment of the fees announced in this notice must be paid beginning on March 2, 2023 and before April 3, 2023. For fiscal year 2024 and each year thereafter, the fees must be paid between October 1st and October 31st of the same year. FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588–0009, telephone (240) 721–3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone SUMMARY: PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 Table of Abbreviations DHS—Department of Homeland Security INA—Immigration and Nationality Act USCIS—U.S. Citizenship and Immigration Services I. Background and Authority B. EB–5 Integrity Fund The 2022 Act establishes a special fund to be known as the EB–5 Integrity Fund (the Fund). INA section 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). The fund is to be used by DHS for the following: (1) Conducting investigations based outside of the United States, including monitoring and investigating programrelated events and promotional activities and ensuring that an alien investor’s funds associated with the alien’s investment were obtained from a lawful source and through lawful means; (2) Detecting and investigating fraud or other crimes; (3) Determining whether regional centers, new commercial enterprises, job-creating entities, and alien investors E:\FR\FM\02MRN1.SGM 02MRN1 13142 Federal Register / Vol. 88, No. 41 / Thursday, March 2, 2023 / Notices (and their alien spouses and alien children) comply with U.S. immigration laws; (4) Conducting audits and site visits; and (5) For other purposes as the Department of Homeland Security (DHS) determines necessary. INA section 203(b)(5)(J)(iii), 8 U.S.C. 1153(b)(5)(J)(iii). II. Integrity Fund Fee ddrumheller on DSK120RN23PROD with NOTICES1 A. Annual Fee. The 2022 Act requires the Fund to be financed through the collection of an annual fee paid by and collected from designated regional centers (Integrity Fund Fee).1 INA section 203(b)(5)(J)(ii), 8 U.S.C. 1153(b)(5)(J)(ii). USCIS recognizes that the 2022 Act required it to collect the first fee by October 1, 2022 and impose penalties for fees not paid by October 31, 2022. USCIS is working to implement the statutory mandates as soon as practicable. While that work is ongoing, and in an effort to implement the plain terms of the 2022 Act as quickly as possible, USCIS will begin collecting the fee for fiscal year 2023, which under the 2022 Act would have been due on October 1, 2022, on March 2, 2023. USCIS will accept payment of the fee, as required by the statute, for 30 days. For fiscal year 2024 and each year thereafter, such fees are required to be paid between October 1st and October 31st of the same year. Id. Section 102 of the Homeland Security Act of 2002 and section 103 of the INA, 8 U.S.C. 1103, generally charge DHS with the administration and enforcement of the immigration and naturalization laws of the United States.2 The INA further authorizes DHS to ‘‘establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of’’ the INA.3 In the Homeland Security Act of 2002, Congress also provided that DHS ‘‘shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.’’ 4 The Homeland 1 Beginning on October 1, 2022 and in accordance with Form I–526E, Immigrant Petition by Regional Center Investor, filing instructions on the USCIS website, USCIS began collecting a $1,000 Integrity Fund Fee with each new immigrant investor petition filed by a regional center investor for the Fund. INA section 203(b)(5)(J)(ii)(II), 8 U.S.C. 1153(b)(5)(J)(ii)(II). 2 Public Law 107–296, sec. 102(a)(3), 116 Stat. 2135, 2143 (codified at 6 U.S.C. 112(a)(3)); Public Law 82–414, 66 Stat. 163 (as amended); INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). 3 INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). 4 Public Law 107–296, sec. 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)). VerDate Sep<11>2014 18:21 Mar 01, 2023 Jkt 259001 Security Act also provides that DHS, in carrying out its authorities, must ‘‘ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.’’ 5 DHS is directed to set national immigration enforcement policies and priorities, and as such, is ultimately accountable for appropriately using the resources available to the Department as a whole and for taking a comprehensive view of the enforcement landscape. The 2022 Act sets the standard annual fee at $20,000 for each designated regional center. However, for those with ‘‘20 or fewer total investors in its new commercial enterprises’’ during the preceding fiscal year (October 1– September 30), the annual fee is reduced to $10,000. Id. At this time, given the statutory mandate to collect the fees beginning on October 1, 2022, and limited agency resources, USCIS is utilizing its discretion to set an enforcement policy for how it will evaluate whether a regional center has appropriately counted the number of its total investors and thus paid the correct fee. As a general matter, USCIS adjudicators will evaluate on a case-by-case basis how many investors a regional center has in any given fiscal year. However, adjudicators will engage in that case-bycase analysis with the understanding that, generally speaking, the number of investors for purpose of calculating the fee to be paid will be the total number of EB–5 investors who have invested (or are actively in the process of investing) in all of the regional center’s new commercial enterprises in the respective fiscal year. This policy is drawn as closely to the plain statutory language as possible and is in line with the general understanding of the term ‘‘investors’’ by EB–5 stakeholders. Although ‘‘investor’’ is not specifically defined for purposes of INA section 203(b)(5), 8 U.S.C. 1153(b)(5), it is used extensively throughout that section to refer to noncitizens seeking classification, or classified, under INA section 203(b)(5) 8 U.S.C. 1153(b)(5) (i.e. I–526 and I–526E petitioners). For purposes of INA section 216A, ‘‘alien investor’’ is defined as ‘‘an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise)’’ under INA section 203(b)(5), 8 U.S.C. 1153(b)(5). See INA 216A(f)(1), 8 U.S.C. 1186b(f)(1). USCIS recognizes that there is no legal requirement that an investor 56 PO 00000 U.S.C. 111(b)(1)(F). Frm 00063 Fmt 4703 Sfmt 4703 remain invested in an NCE within a specific time period after they file their Form I–829, Petition by Investor to Remove Conditions on Permanent Resident Status, and thus has determined that the filing of the Form I–829 generally would be an appropriate demarcation for purposes of determining the number of ‘‘total investors in the preceding fiscal year.’’ Based on INA sections 203(b)(5) and 216A(f)(1), USCIS generally considers an individual to be an investor from the point of filing a petition for classification (Form I–526, Immigrant Petition by Alien Entrepreneur, or Forms I–526E, Immigrant Petition by Regional Center Investor) through the point of filing a petition for removal of conditions (Form I–829, Petition by Investor to Remove Conditions on Permanent Resident Status). This is also the general understanding of the term amongst EB–5 stakeholders.6 Thus, subject to additional considerations described below, USCIS intends to estimate the approximate number of total investors in a regional center in any given fiscal year by subtracting the number of Forms I–829 associated with the regional center filed at any time on or before September 30 of that fiscal year (including filings from prior fiscal years) from the total number of pending and approved Forms I–526, Immigrant Petition by Standalone Investor, associated with the regional center (filed on or before June 30, 2021) and Forms I–526E, Immigrant Petition by Regional Center Investor, (filed on or after June 1, 2022 (the date USCIS published the form)) associated with the regional center filed at any time on or before September 30 of that same fiscal year (including filings from prior fiscal years). A Form I–829 that is filed separately by a spouse or child of an investor that obtained conditional permanent resident status based on their relationship to the investor and was not included on the principal investor’s Form I–829 may typically be excluded from the total investor calculation. For example, if a regional center had 30 associated Form I–526 petitions, 10 associated Form I–526E petitions and 20 associated Form I–829 petitions filed on or before September 30, 2022, USCIS generally would estimate that the 6 See, e.g., EB–5 Diligence, Answers to Common EB–5 Visa Investor Questions (Apr. 26, 2021), available at https://www.eb5diligence.com/articles/ common-eb-5-investor-questions (explaining that an investor’s capital goes into an NCE, the ‘‘at risk’’’ requirement lasts the ‘‘duration of the immigrant investor’s conditional residency’’, and if USCIS denies the petition for ineligibility, ‘‘all the NCE’s investors . . . would then have to start the investment process all over with a new I–526 filing and EB–5 investment.’’). E:\FR\FM\02MRN1.SGM 02MRN1 ddrumheller on DSK120RN23PROD with NOTICES1 Federal Register / Vol. 88, No. 41 / Thursday, March 2, 2023 / Notices regional center has 20 total investors in its new commercial enterprises for fiscal year 2022 (FY22) for purposes of calculating the applicable Integrity Fund fee for fiscal year 2023 (FY23) and would likely owe the reduced fee amount of $10,000, subject to additional considerations described below. USCIS recognizes that there may be alternative methods of calculating ‘‘total investors’’ and has considered potential reliance interests in arriving at this interpretation. As this is an entirely new statutorily created and mandated fee, and USCIS thus has not previously enforced this requirement, USCIS believes that regional centers likely do not have appreciable reliance interests that favor a given interpretation. USCIS emphasizes that the method of approximating investors described above is meant to be a general guide to USCIS adjudicators in this calculation. USCIS adjudicators retain discretion to evaluate the Integrity Fund fee due and the number of investors on a case-bycase basis, accounting for any other facts or evidence in the record in the totality of the circumstances, including any evidence provided by a regional center that believes it has greater or fewer total investors. USCIS considered alternative methods of calculating when a noncitizen generally would no longer be deemed an ‘‘investor’’; however, those options generally would either not capture the entire population or involve manual calculations that USCIS believes would place an unreasonable burden on the Agency’s limited resources as USCIS works to implement the 2022 Act. Additionally, those options might be confusing and burdensome to the investor or regional center populations. For example, USCIS considered generally counting only the Forms I–526 that were filed within two years of the applicable period used for determining the EB–5 Integrity Fund fee given the expected two-year minimum timeframe for the investment, or sustainment period, under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i). However, that would likely be underinclusive given that many investors are actively in the process of investing (i.e. not yet fully invested) when they file their Form I–526 petition as permitted under applicable requirements and, additionally, would not align with the sustainment period for those who filed prior to the 2022 Act, which runs approximately to the point of the Form I–829 filing, regardless of when they filed their Form I–526 or made their investment. For Form I–526 petitions filed after the 2022 Act, USCIS also considered generally VerDate Sep<11>2014 18:21 Mar 01, 2023 Jkt 259001 counting only Form I–526 petitions whose investments were still within the two-year period of investment expected under INA 203(b)(5)(A)(i); however, manual verification of the time period of investment for each regional center investor, rather than conducting a systems inquiry for total petition filings, would exhaust valuable and significant USCIS resources that the agency believes, in the balance, are better utilized in service of other adjudicatory priorities. USCIS acknowledges the practical limitations of determining how many ‘‘total investors’’ may be in a new commercial enterprise during any given fiscal year to ensure that the correct fee is paid. We believe the general method we are announcing in this notice, subject to case-by-case analysis, reflects both a reasonable interpretation of the statute and ensures that USCIS’ limited resources are used most efficiently to ensure compliance with the 2022 Act. B. Fee Payment Process Before April 3, 2023, and between October 1 and October 31 of each following year (FY 2024 onward), each designated regional center must pay the fee to USCIS online via the online form hosted on Pay.gov at Pay.gov—EB5— Annual Fee for Regional Center. Payment of this fee must be made by an authorized individual on behalf of a regional center. Each designated regional center must pay the fee with either a valid credit or debit card or by authorizing an ACH Debit transaction where the regional center provides its U.S. bank routing and checking account numbers to have money debited directly from its U.S. bank account. Please note that the U.S. Department of Treasury guidelines permit USCIS to accept a maximum payment amount of $24,999 from one credit card in one day, and a single obligation cannot be split into multiple credit card payments over multiple days in order to evade this limit.7 The 2022 Act and this notice represent the constructive notice to designated regional centers of the amount they owe and when it is due. USCIS will also post information on its website and issue a press release but will not send an invoice to the regional centers beyond this notice. Each regional center is responsible for determining their amount owed based 7 See U.S. Department of the Treasury, Bureau of the Fiscal Service, Treasury Financial Manual, Chapter 7000, section 7055.20, available at https:// tfm.fiscal.treasury.gov/v1/p5/c700#:∼: text=Federal%20entities %20must%20limit%20their,are%20no%20 more%20than%20%2410%2C000.00 (last viewed Oct. 12, 2022). PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 13143 on the number of total investors and for submitting the appropriate fee before the due date. If a regional center is required to provide evidence of payment of this fee, USCIS will accept proof that the fee is paid in the form of, for example, a copy of the Pay.gov payment confirmation email or a notice or statement from the payer’s credit card issuer or financial institution. C. Late Fee The 2022 Act requires DHS to impose a reasonable penalty fee (to be paid to USCIS and deposited into the Fund when collected) on a regional center that does not pay the annual Integrity Fund fee within 30 days after the date on which such fee is due. INA section 203(b)(5)(J)(iv), 8 U.S.C. 1153(b)(5)(J)(iv). USCIS must terminate the designation of any regional center that does not pay the fee within 90 days after the date on which such fee is due. Id. DHS has decided, in exercising its discretionary enforcement authority articulated above, that USCIS will not charge the late penalty in 2022 for the following reasons: (1) the Fund and Integrity Fund fee are new program requirements; and (2) USCIS must determine an amount that is a ‘‘reasonable’’ penalty to charge. Therefore, DHS has decided and USCIS is announcing that, as a matter of discretionary enforcement policy, we will not charge a late fee until we take further action to set the amount of the late fee, as well as the process for collecting the late fee. However, USCIS will, as authorized by the 2022 Act, terminate the designation of any regional center that does not pay the full fee within 90 days after the date on which such fee is due (i.e., a regional center does not make payment, or a regional center pays $10,000 when it owes $20,000). Termination will not be automatic and USCIS will provide a notice of intent to terminate and the opportunity for a regional center to prove that the fee was paid in the proper amount by the due date before sending a notice of termination. Again, USCIS recognizes that the 2022 Act requires collection of the fee on October 1, 2022 and imposition of termination after 90-days. Because this notice published after October 1, 2022, USCIS will maintain the statutory 90-day termination period and will not begin taking steps to terminate a regional center until May 31, 2023. For all subsequent years, USCIS will take steps to terminate the regional center if the regional center E:\FR\FM\02MRN1.SGM 02MRN1 13144 Federal Register / Vol. 88, No. 41 / Thursday, March 2, 2023 / Notices does not pay the full fee by December 31st.8 III. Regulatory Requirements. A. Administrative Procedure Act DHS and USCIS are taking this action without prior notice and opportunity for comment because this document is a general statement of policy supported by its discretionary enforcement authority and an interpretive rule. 5 U.S.C. 553(b)(A) (notice and comment requirements do not apply to ‘‘general statements of policy’’ and ‘‘interpretive rules’’). The Homeland Security Act authorized the Secretary with ‘‘[e]stablishing national immigration enforcement policies and priorities.’’ 9 In accordance with these authorities, and in attempting to quickly effectuate as much of the 2022 Act’s statutory requirements as possible, DHS is exercising its discretionary authority to explain how it will evaluate whether a regional center has paid the correct fee, and will not impose a reasonable penalty fee on a regional center that does not pay the annual Integrity Fund fee within 30 days until it can pursue additional rulemaking. The Supreme Court explained in Heckler v. Chaney, 470 U.S. 821, 831–32 (1985), that ‘‘an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise . . . we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights.’’ DHS has balanced the impact to the public of imposing a ‘‘reasonable penalty,’’ the timeliness of complying with the statutory mandates, and the agency delays in providing notice to regional centers regarding how to submit the fee. Ultimately, DHS decided that the discretionary policy of non-enforcement presented in this Notice was the most equitable path forward. Alternatively, this agency action is an interpretive rule. Whether a rule is legislative or interpretive turns on ‘‘the prior existence or non-existence of legal duties and rights.’’ Am. Mining Congr. v. Mine Safety & Health Admin., 995 F.2d 1106, 1110 (D.C. Cir. 1993). See, e.g., United Tech. Corp. v. EPA, 821 F.2d 714, 719–20 (D.C. Cir. 1987) (‘‘[W]hat distinguishes interpretative from legislative rules is the legal base upon which the rule rests. If the rule is based on specific statutory provisions, and its validity stands or falls on the correctness of the agency’s interpretation of those provisions, it is an interpretative rule. If, however, the rule is based on an agency’s power to exercise its judgment as to how best to implement a general statutory mandate, the rule is likely a legislative one.’’). By law, USCIS is required to collect the Integrity Fund Fee on an annual basis. See INA section 203(b)(5)(J)(ii), 8 U.S.C. 1153(b)(5)(J)(ii). The statutory provision that requires the $20,000 and $10,000 fees contains little ambiguity for USCIS to resolve or explain: (I) ANNUAL FEE.—On October 1, 2022, and each October 1 thereafter, the Secretary of Homeland Security shall collect for the Fund an annual fee— (aa) except as provided in item (bb), of $20,000 from each regional center designated under subparagraph (E); and (bb) of $10,000 from each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises. INA section 203(b)(5)(J)(ii)(I), 8 U.S.C. 1153(b)(5)(J)(ii)(I). To the extent that there is minimal ambiguity regarding the calculation of ‘‘total investors’’ because the statute does not explicitly include a calculation, USCIS’s interpretation is only intended to guide adjudicators in the performance of their duties and not remove their discretion in making adjudicatory decisions. This interpretation does not create any substantive or procedural right or benefit that is legally enforceable, because the fees are explicitly provided for in statute; but rather provides notice to the public regarding this explicit statutory fee requirement. USCIS imposes no additional duties or rights, beyond what the 2022 Act has already imposed. Therefore, USCIS is imposing this fee without soliciting public comment prior because this is a general statement of policy and an interpretive rule exempt from notice and comment procedures. 5 U.S.C. 553(b)(A). B. Other Regulatory Requirements Because this action is not subject to the notice-and-comment requirements under the Administrative Procedure Act, a final regulatory flexibility analysis is not required. See 5 U.S.C. 604(a). In addition, this notice is not a ‘‘major rule’’ as defined by the Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject to a 60day delay in the rule becoming effective. This action is not subject to the written statement requirements of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4). Nor does it require prior consultation with State, local, and tribal government officials as specified by Executive Orders 13132 or 13175. This notice also does not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). See 40 CFR 1507.3(b)(2)(ii) and 1508.4. This action does not affect the quality of the human environment and fits within Categorical Exclusion number A3(d) in Dir. 023–01 Rev. 01, Appendix A, Table 1, for rules that interpret or amend an existing regulation without changing its environmental effect. This notice does not require review by the Office of Management and Budget (OMB) under Executive Order 12866. As previously discussed, USCIS is required to collect the Integrity Fund Fee. Nonetheless, for illustrative purposes Table 1 shows the total number and aggregate amount of Integrity Fund Fees that USCIS estimates it will receive in 2022. TABLE 1—2022 PROJECTED INTEGRITY FUND FEES ddrumheller on DSK120RN23PROD with NOTICES1 Size of RC Number Fee in $ Total in $ >20 investors ............................................................................................................................... <= 20 investors ............................................................................................................................ 246 384 $20,000 10,000 $4,920,000 3,840,000 Total ...................................................................................................................................... 630 ........................ 8,760,000 8 The 2022 Act provides that DHS may increase the annual Integrity Fund fee as necessary to ensure that the Fund is sufficient to carry out its purposes. INA section 203(b)(5)(J)(ii)(III), 8 U.S.C. VerDate Sep<11>2014 18:21 Mar 01, 2023 Jkt 259001 1153(b)(5)(J)(ii)(III). DHS may increase the amount of the Integrity Fund fees through future regulations if the collections are inadequate. PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 9 Public Law 107–296, sec. 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)). E:\FR\FM\02MRN1.SGM 02MRN1 Federal Register / Vol. 88, No. 41 / Thursday, March 2, 2023 / Notices Finally, this notice and the Integrity Fund Fees are not subject to the Paperwork Reduction Act, 44 U.S.C. 3501–3521 (PRA). The PRA does not preclude the imposition of a penalty on an entity for failing to comply with a collection of information that is imposed on the entity by statute as is the case with the Integrity Fund Fees. See 5 CFR 1320.6(e). Ur M. Jaddou, Director. [FR Doc. 2023–04295 Filed 3–1–23; 8:45 am] BILLING CODE 9111–97–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [Docket No. BIA–2022–0005; 234A2100DD/ AAKC001030/A0A501010.999900; OMB Control Number 1076–0122] Agency Information Collection Activities; Data Elements for BureauFunded Schools Bureau of Indian Affairs, Interior. ACTION: Notice of information collection; request for comment. AGENCY: In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Education (BIE) are proposing to renew an information collection with revisions. DATES: Interested persons are invited to submit comments on or before May 1, 2023. SUMMARY: To submit a comment, please visit https:// www.regulations.gov/docket/BIA-20220005 or use the search field on https:// www.regulations.gov to find the ‘‘BIA– 2022–0005’’ docket. Please follow the comment instructions on Regulations.gov and reference the applicable OMB Control Number within your comment submission. FOR FURTHER INFORMATION CONTACT: Steven Mullen, Information Collection Clearance Officer, by email at comments@bia.gov or telephone at (202) 924–2650. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. You may also view the ICR at https://www.reginfo.gov/public/ Forward?SearchTarget=PRA& textfield=1076-0122. SUPPLEMENTARY INFORMATION: In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501 et seq.) and 5 CFR 1320.8(d)(1), all ddrumheller on DSK120RN23PROD with NOTICES1 ADDRESSES: VerDate Sep<11>2014 18:21 Mar 01, 2023 Jkt 259001 information collections require approval under the PRA. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public’s reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format. We are especially interested in public comment addressing the following: (1) 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) The accuracy of our estimate of the burden for the collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response. Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve the ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. OMB Control Number 1076–0122 Abstract: The Secretary of the Interior, through the Bureau of Indian Education (BIE), is required by the Snyder Act (25 U.S.C. 13), Indian Self-Determination and Education Assistance Act of 1975 (25 U.S.C. 5301), Education Amendments of 1978 (25 U.S.C. 2001), Augustus F. Hawkins-Robert T. Stafford PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 13145 Elementary and Secondary School Improvement Amendments of 1988 (20 U.S.C. 6301 et seq.), and Every Student Succeeds Act (20 U.S.C. 6301) to provide educational services to federally recognized Indians and Alaska Natives. In addition, 25 CFR 43, Maintenance and Control of Student Records in Bureau Schools, contain regulations governing the maintenance, control, and accessibility of student records. BIE’s Student Enrollment Application is utilized by schools operated or funded by BIE. The information is collected by school registrars to determine the student’s eligibility for enrollment in a bureau-operated school, and if eligible, is shared with appropriate school officials to identify the student’s base and supplemental educational and/or residential program needs. The information is compiled into a national database by the Bureau of Indian Education to facilitate budget requests and the allocation of congressionally appropriated funds. BIE’s Behavioral Health and Wellness Program (BHWP) is focused on providing indigenous focused, evidence-based, and trauma-informed behavioral health and wellness services/ resources for students and staff at all Bureau-funded programs, departments, and institutions including Bureau operated schools, Tribally controlled schools, post-secondary institutions, and Tribal colleges and universities. Proposed Revisions BIE proposes a referral intake form to facilitate virtual counseling and crisis services. All data collected for the BHWP will be utilized for establishing the appropriate level of care, assessing client safety, ensuring services are individualized to meet the client’s specific needs, and providing clients with external referrals, as needed. Title of Collection: Data Elements for Bureau-Funded Schools. OMB Control Number: 1076–0122. Form Number: None. Type of Review: Revision of a currently approved collection. Respondents/Affected Public: Individuals, Contract and Grant schools, and Bureau-funded schools. Total Estimated Number of Annual Respondents: 49,000 per year, on average. Total Estimated Number of Annual Responses: 49,000 per year, on average. Estimated Completion Time per Response: 15 to 30 minutes. Total Estimated Number of Annual Burden Hours: 12,500 hours. Frequency of Collection: Occasionally, required to obtain a benefit. E:\FR\FM\02MRN1.SGM 02MRN1

Agencies

[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Notices]
[Pages 13141-13145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04295]


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DEPARTMENT OF HOMELAND SECURITY

[CIS No. 2725-22; DHS Docket No. USCIS-2023-0001]
RIN 1615-ZB97


Notice of EB-5 Regional Center Integrity Fund Fee

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Notice of integrity fund fee.

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

SUMMARY: The U.S. Citizenship and Immigration Services (USCIS) is 
announcing a fee to be collected by USCIS. The EB-5 Reform and 
Integrity Act of 2022 (the 2022 Act) requires USCIS to establish a 
special fund to be known as the EB-5 Integrity Fund to be primarily 
used by USCIS in the administration of the Regional Center Program. 
USCIS must collect a fee of $20,000 or $10,000, depending on certain 
factors established by the 2022 Act, to finance the EB-5 Integrity Fund 
from each designated regional center. This notice explains how regional 
centers should determine the amount of the fee and provides the process 
for how it is to be paid.

DATES: The first fee payment of the fees announced in this notice must 
be paid beginning on March 2, 2023 and before April 3, 2023. For fiscal 
year 2024 and each year thereafter, the fees must be paid between 
October 1st and October 31st of the same year.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009, telephone 
(240) 721-3000 (this is not a toll-free number). Individuals with 
hearing or speech impairments may access the telephone number above via 
TTY by calling the toll-free Federal Information Relay Service at 1-
877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

DHS--Department of Homeland Security
INA--Immigration and Nationality Act
USCIS--U.S. Citizenship and Immigration Services

I. Background and Authority

A. EB-5 Reform and Integrity Act of 2022

    On March 15, 2022, the President signed into law the EB-5 Reform 
and Integrity Act of 2022 (the 2022 Act), Div. BB of the Consolidated 
Appropriations Act, 2022, Public Law 117-103. Among other things, the 
2022 Act immediately repealed the former authorizing statutory 
provisions under the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act 1993, Public Law 
102-395, 106 Stat. 1828, Sec.  610, and added new authorizing 
provisions to the Immigration and Nationality Act, substantially 
reforming the Regional Center Program effective May 14, 2022. The 
reformed Regional Center Program is authorized through September 30, 
2027.
    The Regional Center Program makes visas available to qualified 
immigrants (and the eligible spouses and children of such immigrants) 
who pool their investments with other qualified immigrants in a 
``regional center'' in the United States. See INA section 203(b)(5)(E), 
8 U.S.C. 1153(b)(5)(E). USCIS designates regional centers based on a 
proposal for the promotion of economic growth, including prospective 
job creation and increased domestic capital investment in their 
requested geographic region. Id.

B. EB-5 Integrity Fund

    The 2022 Act establishes a special fund to be known as the EB-5 
Integrity Fund (the Fund). INA section 203(b)(5)(J), 8 U.S.C. 
1153(b)(5)(J). The fund is to be used by DHS for the following:
    (1) Conducting investigations based outside of the United States, 
including monitoring and investigating program-related events and 
promotional activities and ensuring that an alien investor's funds 
associated with the alien's investment were obtained from a lawful 
source and through lawful means;
    (2) Detecting and investigating fraud or other crimes;
    (3) Determining whether regional centers, new commercial 
enterprises, job-creating entities, and alien investors

[[Page 13142]]

(and their alien spouses and alien children) comply with U.S. 
immigration laws;
    (4) Conducting audits and site visits; and
    (5) For other purposes as the Department of Homeland Security (DHS) 
determines necessary.
    INA section 203(b)(5)(J)(iii), 8 U.S.C. 1153(b)(5)(J)(iii).

II. Integrity Fund Fee

A. Annual Fee.

    The 2022 Act requires the Fund to be financed through the 
collection of an annual fee paid by and collected from designated 
regional centers (Integrity Fund Fee).\1\ INA section 203(b)(5)(J)(ii), 
8 U.S.C. 1153(b)(5)(J)(ii). USCIS recognizes that the 2022 Act required 
it to collect the first fee by October 1, 2022 and impose penalties for 
fees not paid by October 31, 2022. USCIS is working to implement the 
statutory mandates as soon as practicable. While that work is ongoing, 
and in an effort to implement the plain terms of the 2022 Act as 
quickly as possible, USCIS will begin collecting the fee for fiscal 
year 2023, which under the 2022 Act would have been due on October 1, 
2022, on March 2, 2023. USCIS will accept payment of the fee, as 
required by the statute, for 30 days. For fiscal year 2024 and each 
year thereafter, such fees are required to be paid between October 1st 
and October 31st of the same year. Id.
---------------------------------------------------------------------------

    \1\ Beginning on October 1, 2022 and in accordance with Form I-
526E, Immigrant Petition by Regional Center Investor, filing 
instructions on the USCIS website, USCIS began collecting a $1,000 
Integrity Fund Fee with each new immigrant investor petition filed 
by a regional center investor for the Fund. INA section 
203(b)(5)(J)(ii)(II), 8 U.S.C. 1153(b)(5)(J)(ii)(II).
---------------------------------------------------------------------------

    Section 102 of the Homeland Security Act of 2002 and section 103 of 
the INA, 8 U.S.C. 1103, generally charge DHS with the administration 
and enforcement of the immigration and naturalization laws of the 
United States.\2\ The INA further authorizes DHS to ``establish such 
regulations; prescribe such forms of bond, reports, entries, and other 
papers; issue such instructions; and perform such other acts as he 
deems necessary for carrying out his authority under the provisions 
of'' the INA.\3\ In the Homeland Security Act of 2002, Congress also 
provided that DHS ``shall be responsible for . . . [e]stablishing 
national immigration enforcement policies and priorities.'' \4\ The 
Homeland Security Act also provides that DHS, in carrying out its 
authorities, must ``ensure that the overall economic security of the 
United States is not diminished by efforts, activities, and programs 
aimed at securing the homeland.'' \5\
---------------------------------------------------------------------------

    \2\ Public Law 107-296, sec. 102(a)(3), 116 Stat. 2135, 2143 
(codified at 6 U.S.C. 112(a)(3)); Public Law 82-414, 66 Stat. 163 
(as amended); INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1).
    \3\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
    \4\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 
(codified at 6 U.S.C. 202(5)).
    \5\ 6 U.S.C. 111(b)(1)(F).
---------------------------------------------------------------------------

    DHS is directed to set national immigration enforcement policies 
and priorities, and as such, is ultimately accountable for 
appropriately using the resources available to the Department as a 
whole and for taking a comprehensive view of the enforcement landscape.
    The 2022 Act sets the standard annual fee at $20,000 for each 
designated regional center. However, for those with ``20 or fewer total 
investors in its new commercial enterprises'' during the preceding 
fiscal year (October 1-September 30), the annual fee is reduced to 
$10,000. Id.
    At this time, given the statutory mandate to collect the fees 
beginning on October 1, 2022, and limited agency resources, USCIS is 
utilizing its discretion to set an enforcement policy for how it will 
evaluate whether a regional center has appropriately counted the number 
of its total investors and thus paid the correct fee. As a general 
matter, USCIS adjudicators will evaluate on a case-by-case basis how 
many investors a regional center has in any given fiscal year. However, 
adjudicators will engage in that case-by-case analysis with the 
understanding that, generally speaking, the number of investors for 
purpose of calculating the fee to be paid will be the total number of 
EB-5 investors who have invested (or are actively in the process of 
investing) in all of the regional center's new commercial enterprises 
in the respective fiscal year. This policy is drawn as closely to the 
plain statutory language as possible and is in line with the general 
understanding of the term ``investors'' by EB-5 stakeholders.
    Although ``investor'' is not specifically defined for purposes of 
INA section 203(b)(5), 8 U.S.C. 1153(b)(5), it is used extensively 
throughout that section to refer to noncitizens seeking classification, 
or classified, under INA section 203(b)(5) 8 U.S.C. 1153(b)(5) (i.e. I-
526 and I-526E petitioners). For purposes of INA section 216A, ``alien 
investor'' is defined as ``an alien who obtains the status of an alien 
lawfully admitted for permanent residence (whether on a conditional 
basis or otherwise)'' under INA section 203(b)(5), 8 U.S.C. 1153(b)(5). 
See INA 216A(f)(1), 8 U.S.C. 1186b(f)(1).
    USCIS recognizes that there is no legal requirement that an 
investor remain invested in an NCE within a specific time period after 
they file their Form I-829, Petition by Investor to Remove Conditions 
on Permanent Resident Status, and thus has determined that the filing 
of the Form I-829 generally would be an appropriate demarcation for 
purposes of determining the number of ``total investors in the 
preceding fiscal year.'' Based on INA sections 203(b)(5) and 
216A(f)(1), USCIS generally considers an individual to be an investor 
from the point of filing a petition for classification (Form I-526, 
Immigrant Petition by Alien Entrepreneur, or Forms I-526E, Immigrant 
Petition by Regional Center Investor) through the point of filing a 
petition for removal of conditions (Form I-829, Petition by Investor to 
Remove Conditions on Permanent Resident Status). This is also the 
general understanding of the term amongst EB-5 stakeholders.\6\ Thus, 
subject to additional considerations described below, USCIS intends to 
estimate the approximate number of total investors in a regional center 
in any given fiscal year by subtracting the number of Forms I-829 
associated with the regional center filed at any time on or before 
September 30 of that fiscal year (including filings from prior fiscal 
years) from the total number of pending and approved Forms I-526, 
Immigrant Petition by Standalone Investor, associated with the regional 
center (filed on or before June 30, 2021) and Forms I-526E, Immigrant 
Petition by Regional Center Investor, (filed on or after June 1, 2022 
(the date USCIS published the form)) associated with the regional 
center filed at any time on or before September 30 of that same fiscal 
year (including filings from prior fiscal years). A Form I-829 that is 
filed separately by a spouse or child of an investor that obtained 
conditional permanent resident status based on their relationship to 
the investor and was not included on the principal investor's Form I-
829 may typically be excluded from the total investor calculation. For 
example, if a regional center had 30 associated Form I-526 petitions, 
10 associated Form I-526E petitions and 20 associated Form I-829 
petitions filed on or before September 30, 2022, USCIS generally would 
estimate that the

[[Page 13143]]

regional center has 20 total investors in its new commercial 
enterprises for fiscal year 2022 (FY22) for purposes of calculating the 
applicable Integrity Fund fee for fiscal year 2023 (FY23) and would 
likely owe the reduced fee amount of $10,000, subject to additional 
considerations described below.
---------------------------------------------------------------------------

    \6\ See, e.g., EB-5 Diligence, Answers to Common EB-5 Visa 
Investor Questions (Apr. 26, 2021), available at https://www.eb5diligence.com/articles/common-eb-5-investor-questions 
(explaining that an investor's capital goes into an NCE, the ``at 
risk''' requirement lasts the ``duration of the immigrant investor's 
conditional residency'', and if USCIS denies the petition for 
ineligibility, ``all the NCE's investors . . . would then have to 
start the investment process all over with a new I-526 filing and 
EB-5 investment.'').
---------------------------------------------------------------------------

    USCIS recognizes that there may be alternative methods of 
calculating ``total investors'' and has considered potential reliance 
interests in arriving at this interpretation. As this is an entirely 
new statutorily created and mandated fee, and USCIS thus has not 
previously enforced this requirement, USCIS believes that regional 
centers likely do not have appreciable reliance interests that favor a 
given interpretation. USCIS emphasizes that the method of approximating 
investors described above is meant to be a general guide to USCIS 
adjudicators in this calculation. USCIS adjudicators retain discretion 
to evaluate the Integrity Fund fee due and the number of investors on a 
case-by-case basis, accounting for any other facts or evidence in the 
record in the totality of the circumstances, including any evidence 
provided by a regional center that believes it has greater or fewer 
total investors.
    USCIS considered alternative methods of calculating when a 
noncitizen generally would no longer be deemed an ``investor''; 
however, those options generally would either not capture the entire 
population or involve manual calculations that USCIS believes would 
place an unreasonable burden on the Agency's limited resources as USCIS 
works to implement the 2022 Act. Additionally, those options might be 
confusing and burdensome to the investor or regional center 
populations. For example, USCIS considered generally counting only the 
Forms I-526 that were filed within two years of the applicable period 
used for determining the EB-5 Integrity Fund fee given the expected 
two-year minimum timeframe for the investment, or sustainment period, 
under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 
1153(b)(5)(A)(i). However, that would likely be underinclusive given 
that many investors are actively in the process of investing (i.e. not 
yet fully invested) when they file their Form I-526 petition as 
permitted under applicable requirements and, additionally, would not 
align with the sustainment period for those who filed prior to the 2022 
Act, which runs approximately to the point of the Form I-829 filing, 
regardless of when they filed their Form I-526 or made their 
investment. For Form I-526 petitions filed after the 2022 Act, USCIS 
also considered generally counting only Form I-526 petitions whose 
investments were still within the two-year period of investment 
expected under INA 203(b)(5)(A)(i); however, manual verification of the 
time period of investment for each regional center investor, rather 
than conducting a systems inquiry for total petition filings, would 
exhaust valuable and significant USCIS resources that the agency 
believes, in the balance, are better utilized in service of other 
adjudicatory priorities. USCIS acknowledges the practical limitations 
of determining how many ``total investors'' may be in a new commercial 
enterprise during any given fiscal year to ensure that the correct fee 
is paid. We believe the general method we are announcing in this 
notice, subject to case-by-case analysis, reflects both a reasonable 
interpretation of the statute and ensures that USCIS' limited resources 
are used most efficiently to ensure compliance with the 2022 Act.

B. Fee Payment Process

    Before April 3, 2023, and between October 1 and October 31 of each 
following year (FY 2024 onward), each designated regional center must 
pay the fee to USCIS online via the online form hosted on Pay.gov at 
Pay.gov--EB5--Annual Fee for Regional Center. Payment of this fee must 
be made by an authorized individual on behalf of a regional center. 
Each designated regional center must pay the fee with either a valid 
credit or debit card or by authorizing an ACH Debit transaction where 
the regional center provides its U.S. bank routing and checking account 
numbers to have money debited directly from its U.S. bank account. 
Please note that the U.S. Department of Treasury guidelines permit 
USCIS to accept a maximum payment amount of $24,999 from one credit 
card in one day, and a single obligation cannot be split into multiple 
credit card payments over multiple days in order to evade this 
limit.\7\
---------------------------------------------------------------------------

    \7\ See U.S. Department of the Treasury, Bureau of the Fiscal 
Service, Treasury Financial Manual, Chapter 7000, section 7055.20, 
available at https://tfm.fiscal.treasury.gov/v1/p5/
c700#:~:text=Federal%20entities%20must%20limit%20their,are%20no%20mor
e%20than%20%2410%2C000.00 (last viewed Oct. 12, 2022).
---------------------------------------------------------------------------

    The 2022 Act and this notice represent the constructive notice to 
designated regional centers of the amount they owe and when it is due. 
USCIS will also post information on its website and issue a press 
release but will not send an invoice to the regional centers beyond 
this notice. Each regional center is responsible for determining their 
amount owed based on the number of total investors and for submitting 
the appropriate fee before the due date. If a regional center is 
required to provide evidence of payment of this fee, USCIS will accept 
proof that the fee is paid in the form of, for example, a copy of the 
Pay.gov payment confirmation email or a notice or statement from the 
payer's credit card issuer or financial institution.

C. Late Fee

    The 2022 Act requires DHS to impose a reasonable penalty fee (to be 
paid to USCIS and deposited into the Fund when collected) on a regional 
center that does not pay the annual Integrity Fund fee within 30 days 
after the date on which such fee is due. INA section 203(b)(5)(J)(iv), 
8 U.S.C. 1153(b)(5)(J)(iv). USCIS must terminate the designation of any 
regional center that does not pay the fee within 90 days after the date 
on which such fee is due. Id.
    DHS has decided, in exercising its discretionary enforcement 
authority articulated above, that USCIS will not charge the late 
penalty in 2022 for the following reasons: (1) the Fund and Integrity 
Fund fee are new program requirements; and (2) USCIS must determine an 
amount that is a ``reasonable'' penalty to charge. Therefore, DHS has 
decided and USCIS is announcing that, as a matter of discretionary 
enforcement policy, we will not charge a late fee until we take further 
action to set the amount of the late fee, as well as the process for 
collecting the late fee.
    However, USCIS will, as authorized by the 2022 Act, terminate the 
designation of any regional center that does not pay the full fee 
within 90 days after the date on which such fee is due (i.e., a 
regional center does not make payment, or a regional center pays 
$10,000 when it owes $20,000). Termination will not be automatic and 
USCIS will provide a notice of intent to terminate and the opportunity 
for a regional center to prove that the fee was paid in the proper 
amount by the due date before sending a notice of termination. Again, 
USCIS recognizes that the 2022 Act requires collection of the fee on 
October 1, 2022 and imposition of termination after 90-days. Because 
this notice published after October 1, 2022, USCIS will maintain the 
statutory 90-day termination period and will not begin taking steps to 
terminate a regional center until May 31, 2023. For all subsequent 
years, USCIS will take steps to terminate the regional center if the 
regional center

[[Page 13144]]

does not pay the full fee by December 31st.\8\
---------------------------------------------------------------------------

    \8\ The 2022 Act provides that DHS may increase the annual 
Integrity Fund fee as necessary to ensure that the Fund is 
sufficient to carry out its purposes. INA section 
203(b)(5)(J)(ii)(III), 8 U.S.C. 1153(b)(5)(J)(ii)(III). DHS may 
increase the amount of the Integrity Fund fees through future 
regulations if the collections are inadequate.
---------------------------------------------------------------------------

III. Regulatory Requirements.

A. Administrative Procedure Act

    DHS and USCIS are taking this action without prior notice and 
opportunity for comment because this document is a general statement of 
policy supported by its discretionary enforcement authority and an 
interpretive rule. 5 U.S.C. 553(b)(A) (notice and comment requirements 
do not apply to ``general statements of policy'' and ``interpretive 
rules'').
    The Homeland Security Act authorized the Secretary with 
``[e]stablishing national immigration enforcement policies and 
priorities.'' \9\ In accordance with these authorities, and in 
attempting to quickly effectuate as much of the 2022 Act's statutory 
requirements as possible, DHS is exercising its discretionary authority 
to explain how it will evaluate whether a regional center has paid the 
correct fee, and will not impose a reasonable penalty fee on a regional 
center that does not pay the annual Integrity Fund fee within 30 days 
until it can pursue additional rulemaking. The Supreme Court explained 
in Heckler v. Chaney, 470 U.S. 821, 831-32 (1985), that ``an agency 
decision not to enforce often involves a complicated balancing of a 
number of factors which are peculiarly within its expertise . . . we 
note that when an agency refuses to act it generally does not exercise 
its coercive power over an individual's liberty or property rights.'' 
DHS has balanced the impact to the public of imposing a ``reasonable 
penalty,'' the timeliness of complying with the statutory mandates, and 
the agency delays in providing notice to regional centers regarding how 
to submit the fee. Ultimately, DHS decided that the discretionary 
policy of non-enforcement presented in this Notice was the most 
equitable path forward.
---------------------------------------------------------------------------

    \9\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 
(codified at 6 U.S.C. 202(5)).
---------------------------------------------------------------------------

    Alternatively, this agency action is an interpretive rule. Whether 
a rule is legislative or interpretive turns on ``the prior existence or 
non-existence of legal duties and rights.'' Am. Mining Congr. v. Mine 
Safety & Health Admin., 995 F.2d 1106, 1110 (D.C. Cir. 1993). See, 
e.g., United Tech. Corp. v. EPA, 821 F.2d 714, 719-20 (D.C. Cir. 1987) 
(``[W]hat distinguishes interpretative from legislative rules is the 
legal base upon which the rule rests. If the rule is based on specific 
statutory provisions, and its validity stands or falls on the 
correctness of the agency's interpretation of those provisions, it is 
an interpretative rule. If, however, the rule is based on an agency's 
power to exercise its judgment as to how best to implement a general 
statutory mandate, the rule is likely a legislative one.''). By law, 
USCIS is required to collect the Integrity Fund Fee on an annual basis. 
See INA section 203(b)(5)(J)(ii), 8 U.S.C. 1153(b)(5)(J)(ii). The 
statutory provision that requires the $20,000 and $10,000 fees contains 
little ambiguity for USCIS to resolve or explain:
    (I) ANNUAL FEE.--On October 1, 2022, and each October 1 thereafter, 
the Secretary of Homeland Security shall collect for the Fund an annual 
fee--
    (aa) except as provided in item (bb), of $20,000 from each regional 
center designated under subparagraph (E); and
    (bb) of $10,000 from each such regional center with 20 or fewer 
total investors in the preceding fiscal year in its new commercial 
enterprises.
    INA section 203(b)(5)(J)(ii)(I), 8 U.S.C. 1153(b)(5)(J)(ii)(I). To 
the extent that there is minimal ambiguity regarding the calculation of 
``total investors'' because the statute does not explicitly include a 
calculation, USCIS's interpretation is only intended to guide 
adjudicators in the performance of their duties and not remove their 
discretion in making adjudicatory decisions. This interpretation does 
not create any substantive or procedural right or benefit that is 
legally enforceable, because the fees are explicitly provided for in 
statute; but rather provides notice to the public regarding this 
explicit statutory fee requirement. USCIS imposes no additional duties 
or rights, beyond what the 2022 Act has already imposed.
    Therefore, USCIS is imposing this fee without soliciting public 
comment prior because this is a general statement of policy and an 
interpretive rule exempt from notice and comment procedures. 5 U.S.C. 
553(b)(A).

B. Other Regulatory Requirements

    Because this action is not subject to the notice-and-comment 
requirements under the Administrative Procedure Act, a final regulatory 
flexibility analysis is not required. See 5 U.S.C. 604(a). In addition, 
this notice is not a ``major rule'' as defined by the Congressional 
Review Act, 5 U.S.C. 804(2), and thus is not subject to a 60-day delay 
in the rule becoming effective. This action is not subject to the 
written statement requirements of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Pub. L. 104-4). Nor does it require prior consultation 
with State, local, and tribal government officials as specified by 
Executive Orders 13132 or 13175. This notice also does not require an 
Environmental Assessment (EA) or Environmental Impact Statement (EIS). 
See 40 CFR 1507.3(b)(2)(ii) and 1508.4. This action does not affect the 
quality of the human environment and fits within Categorical Exclusion 
number A3(d) in Dir. 023-01 Rev. 01, Appendix A, Table 1, for rules 
that interpret or amend an existing regulation without changing its 
environmental effect.
    This notice does not require review by the Office of Management and 
Budget (OMB) under Executive Order 12866. As previously discussed, 
USCIS is required to collect the Integrity Fund Fee. Nonetheless, for 
illustrative purposes Table 1 shows the total number and aggregate 
amount of Integrity Fund Fees that USCIS estimates it will receive in 
2022.

                                   Table 1--2022 Projected Integrity Fund Fees
----------------------------------------------------------------------------------------------------------------
                           Size of RC                                 Number         Fee in $       Total in $
----------------------------------------------------------------------------------------------------------------
>20 investors...................................................             246         $20,000      $4,920,000
<= 20 investors.................................................             384          10,000       3,840,000
                                                                 -----------------------------------------------
    Total.......................................................             630  ..............       8,760,000
----------------------------------------------------------------------------------------------------------------


[[Page 13145]]

    Finally, this notice and the Integrity Fund Fees are not subject to 
the Paperwork Reduction Act, 44 U.S.C. 3501-3521 (PRA). The PRA does 
not preclude the imposition of a penalty on an entity for failing to 
comply with a collection of information that is imposed on the entity 
by statute as is the case with the Integrity Fund Fees. See 5 CFR 
1320.6(e).

Ur M. Jaddou,
Director.
[FR Doc. 2023-04295 Filed 3-1-23; 8:45 am]
BILLING CODE 9111-97-P
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