Adjustment to Premium Processing Fees, 89539-89550 [2023-28529]
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89539
Rules and Regulations
Federal Register
Vol. 88, No. 248
Thursday, December 28, 2023
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS–NOP–21–0073]
RIN 0581–AE06
National Organic Program (NOP);
Organic Livestock and Poultry
Standards; Correction
Agricultural Marketing Service,
Department of Agriculture (USDA).
ACTION: Final rule; correction.
AGENCY:
The Agricultural Marketing
Service (AMS) is correcting nonsubstantive errors in the regulatory text
of the Organic Livestock and Poultry
Standards (OLPS) final rule published
on November 2, 2023. The corrections
are intended to improve readability and
clarity.
DATES: Effective January 12, 2024.
FOR FURTHER INFORMATION CONTACT: Erin
Healy, Director, Standards Division;
Telephone: (202) 720–3252; Email:
erin.healy@usda.gov.
SUPPLEMENTARY INFORMATION: The OLPS
final rule published on November 2,
2023 (88 FR 75394), delayed December
13, 2023 (88 FR 86259), amends the
USDA organic regulations related to the
production of livestock, including
poultry, marketed as organic. This
action corrects five errors in the OLPS
regulatory text published on November
2, 2023, to improve the readability and
clarity of the rule. The corrections do
not change the meaning of the
regulations.
Section 553 of the Administrative
Procedure Act, 5 U.S.C.553(b)(B),
provides that, when an agency for good
cause finds that notice and public
procedure are impracticable,
unnecessary, or contrary to the public
interest, an agency may issue a rule
without providing notice and an
opportunity for public comment. AMS
has determined that there is good cause
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SUMMARY:
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for making these corrections final
without prior proposal and opportunity
for comment because AMS is merely
correcting minor non-substantive errors
and omissions in the regulatory text.
Accordingly, AMS finds that there is
good cause to dispense with notice and
public procedure under 5 U.S.C.
553(b)(B). With respect to the effective
date, this final rule correction is not
substantive in nature, and there is good
cause to dispense with a 30-day delayed
effective date. This final rule correction
will be effective January 12, 2024, in
conjunction with the entirety of the
rule, as provided by FR Doc. 2023–
27255 (88 FR 86259; December 13,
2023).
provided that temporary confinement
for no more than one week prior to a fair
or other demonstration,’’ is corrected to
read, ‘‘For 4–H, National FFA
Organization, and other youth projects,
for no more than one week prior to a fair
or other demonstration,’’.
Erin Morris,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2023–28499 Filed 12–27–23; 8:45 am]
BILLING CODE P
DEPARTMENT OF HOMELAND
SECURITY
Corrections
In FR Doc. 2023–23726 appearing in
the Federal Register of November 2,
2023, at 88 FR 75394, the following
corrections are made:
8 CFR Part 106
§ 205.2
Adjustment to Premium Processing
Fees
[Corrected]
1. On page 75444, in the third column,
in § 205.2, in the definition of Cattle
wattling, ‘‘The surgical separation of
two layers of the skin from the
connective tissue for along a 2-to-4-inch
path’’ is corrected to read ‘‘The surgical
separation of two layers of the skin from
the connective tissue along a 2-to-4-inch
path’’.
■
§ 205.239
[Corrected]
2. On page 75447, in the first column,
in § 205.239, in paragraph (c)(4),
‘‘provide each animal with an average of
at least 30 percent DMI’’ is corrected to
read ‘‘provide each animal with an
average of at least 30 percent dry matter
intake (DMI)’’.
■
§ 205.241
[Corrected]
3. On page 75447, in the second
column, in § 205.241, in paragraph (a),
‘‘including: year-round access to
outdoors;’’ is corrected to read,
‘‘including: year-round access to the
outdoors;’’.
■ 4. On page 75447, in the third column,
in § 205.241, in paragraph (b)(4)(i), ‘‘a
certifier may approve practices that
provide less than 1 linear feet per 360
birds’’ is corrected to read, ‘‘a certifier
may approve practices that provide less
than 1 linear foot per 360 birds’’.
■ 5. On page 75448, in the second
column, in § 205.241, in paragraph
(d)(8), ‘‘For 4–H, National FFA
Organization, and other youth projects,
■
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[CIS No. 2757–23; DHS Docket No. USCIS–
2018–0003]
RIN 1615–ZC05
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security (DHS) is increasing premium
processing fees charged by U.S.
Citizenship and Immigration Services
(USCIS) to reflect the amount of
inflation from June 2021 through June
2023 according to the Consumer Price
Index for All Urban Consumers. The
adjustment increases premium
processing fees from $1,500 to $1,685,
$1,750 to $1,965, and $2,500 to $2,805.
DATES:
Effective date: This rule is effective on
February 26, 2024.
Compliance date: Requests for
premium processing postmarked on or
after February 26, 2024 must include the
new fee.
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).
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Table of Abbreviations
CFR—Code of Federal Regulations
CPI—Consumer Price Index
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CPI–U—Consumer Price Index for All Urban
Consumers DHS—Department of
Homeland Security
E.O.—Executive Order
Form I–129—Petition for a Nonimmigrant
Worker
Form I–140—Immigrant Petition for Alien
Workers
Form I–539—Application to Extend/Change
Nonimmigrant Status
Form I–765—Application for Employment
Authorization
FY—Fiscal Year
INA—Immigration and Nationality Act
NEPA—National Environmental Protection
Act
NIW—National Interest Waiver
SBREFA—Small Business Regulatory
Enforcement Fairness Act of 1996
USCIS—U.S. Citizenship and Immigration
Services
USCIS Stabilization Act—Emergency
Stopgap USCIS Stabilization Act
USCIS Stabilization Rule—Implementation of
the Emergency Stopgap USCIS
Stabilization Act Final Rule, published
March 30, 2022
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I. Background and Authority
Section 286(u) of the INA, 8 U.S.C.
1356(u), provides the Secretary with
authority to establish and collect a
premium fee for the premium
processing of certain immigration
benefit types.1 Premium processing
means that DHS collects a fee in
addition to the regular filing fee from
persons seeking expedited processing of
eligible immigration benefit requests.2
On October 1, 2020, the Continuing
Appropriations Act, which included the
Emergency Stopgap USCIS Stabilization
Act (USCIS Stabilization Act), set new
fees for premium processing of
immigration benefit requests that had
been designated for premium processing
as of August 1, 2020, and expanded
DHS authority to establish and collect
new premium processing fees, and to
use those additional funds for expanded
purposes. See Emergency Stopgap
USCIS Stabilization Act, Public Law
116–159, sec. 4102 (Oct. 1, 2020); INA
sec. 286(u), 8 U.S.C. 1356(u).
On October 16, 2020, USCIS
announced it would increase the fees for
premium processing, as required by the
USCIS Stabilization Act, effective
October 19, 2020.3 As of that date, the
fee for Form I–907, Request for Premium
Processing Service, increased from
$1,440 to $2,500 for all immigration
1 ‘‘Premium fees’’ and ‘‘premium processing fees’’
are used interchangeably throughout this rule.
2 See 8 CFR 1.2 for the definition of ‘‘Benefit
request’’; See 8 CFR 106.4 for those immigration
benefit requests currently eligible for premium
processing.
3 See USCIS, Premium Processing Fee Increase
Effective Oct. 19, 2020, https://www.uscis.gov/
news/premium-processing-fee-increase-effectiveoct-19-2020 (last visited July 19, 2023).
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benefit requests that were designated for
premium processing as of August 1,
2020, with the exception that the
premium processing fee for petitioners
filing Form I–129, Petition for a
Nonimmigrant Worker, requesting H–2B
or R–1 nonimmigrant status increased
from $1,440 to $1,500. USCIS further
announced that, while the USCIS
Stabilization Act gave USCIS the ability
to expand premium processing to
additional forms and immigration
benefit requests, USCIS was not yet
taking such action and that any
expansion of premium processing to
other forms would be implemented as
provided in the legislation.4
Effective May 31, 2022, DHS amended
its premium processing regulations to
codify the fees set by the USCIS
Stabilization Act and establish new fees
and processing timeframes consistent
with the conditions and eligibility
requirements set forth by section
4102(b)(1) of the USCIS Stabilization
Act. See Final rule, Implementation of
the Emergency Stopgap USCIS
Stabilization Act (USCIS Stabilization
Rule), 87 FR 18227 (Mar. 30, 2022); see
also 8 CFR 106.4. The fees established
by the USCIS Stabilization Act and
codified by the USCIS Stabilization Rule
were as follows:
Æ For all immigration benefit requests
that were designated for premium
processing as of August 1, 2020,
increased from $1,440 to $2,500, with
the exception that the premium
processing fee for petitioners filing
Form I–129, Petition for a
Nonimmigrant Worker, requesting H–2B
or R–1 nonimmigrant status increased
from $1,440 to $1,500.5
Æ For those requesting premium
processing for EB–1 immigrant
classification as a multinational
executive or manager or EB–2
immigrant classification as a member of
professions with advanced degrees or
exceptional ability seeking a national
interest waiver (NIW) on Form I–140,
Immigrant Petition for Alien Working,
the fee was established as $2,500.6
Æ For those requesting premium
processing of a change of status to F–1,
F–2, J–1, J–2, M–1, or M–2
nonimmigrant status or a change of
status to or extension of stay in E–1, E–
2, E–3, H–4, L–2, O–3, P–4, or R–2
nonimmigrant status on Form I–539,
4 Id.
5 See USCIS Stabilization Act, Public Law 116–
159 at sec. 4102(a) (codified as amended at 8 U.S.C.
1356(u)(3)(A) (Oct. 1, 2020); USCIS Stabilization
Rule, 87 FR 18227,18231 (Mar. 30, 2022). See also
8 CFR 106.4(c).
6 See id. at sec. 4102(b)(1)(A) (Oct. 1, 2020);
USCIS Stabilization Rule, 87 FR 18227,18231 (Mar.
30, 2022). See also 8 CFR 106.4(c).
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Application to Extend/Change
Nonimmigrant Status, the fee was
established as $1,750; 7 and
Æ For those requesting premium
processing for employment
authorization on Form I–765,
Application for Employment
Authorization, the fee was established
as $1,500.8
USCIS is now increasing those
premium processing fees provided by
Congress in the USCIS Stabilization Act
and codified through the USCIS
Stabilization Rule by the inflationary
adjustment calculation provided by INA
286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C). See
USCIS Stabilization Act, Public Law
116–159 (Oct. 1, 2020).
II. Basis for Adjustment
Section 286(u)(3)(C) of the INA, 8
U.S.C. 1356(u)(3)(C), provides that DHS
may adjust the premium fees on a
biennial basis by the percentage by
which the Consumer Price Index (CPI)
for All Urban Consumers for the month
of June preceding the date on which
such adjustment takes effect exceeds the
CPI for All Urban Consumers (CPI–U)
for the same month of the second
preceding calendar year. See also 8 CFR
106.4(d) (codifying section 286(u)(3)(C)
of the INA, 8 U.S.C. 1356(u)(3)(C) in 8
CFR part 106, USCIS Fee Schedule).
The USCIS Stabilization Act
established the current premium
processing fees and the authority for
DHS to adjust the premium fees on a
biennial basis on October 1, 2020. DHS
has not adjusted the statutory premium
fees since October 1, 2020. As
authorized by the USCIS Stabilization
Act, DHS is now increasing the statutory
premium fees as provided for by the
USCIS Stabilization Act by the
percentage by which the CPI–U for the
month of June preceding the date on
which such adjustment takes effect
exceeds the CPI–U for the same month
of the second preceding calendar year.
This rule is effective on February 26,
2024, therefore ‘‘the month of June
preceding the date on which such
adjustment takes effect’’ is June 2023.
As such, June 2021 is ‘‘the same month
of the second preceding calendar year,’’
because it is two years before the June
‘‘on which such adjustment takes
effect.’’ Therefore, DHS is using the
CPI–U as of June 2023 as the end point
and June 2021 as the starting point for
the period of inflation to establish the
new premium processing fees. In June
7 See id. at sec. 4102(b)(1)(B)&(C) (Oct. 1, 2020);
USCIS Stabilization Rule, 87 FR 18227,18231 (Mar.
30, 2022). See also 8 CFR 106.4(c).
8 See id. at sec. 4102(b)(1)(D) (Oct. 1, 2020);
USCIS Stabilization Rule, 87 FR 18227,18231 (Mar.
30, 2022). See also 8 CFR 106.4(c).
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2021 the CPI–U was 271.696, and in
June 2023 it was 305.109.9 Therefore,
between June 2021 and June 2023, the
CPI–U increased by 12.30 percent.10
When this percentage increase is
applied to the current premium
processing fees, the premium processing
fees that were $1,500, increase to
$1,685; the premium processing fees
that were $1,750, increase to $1,965;
and the premium processing fees that
were $2,500, increase to $2,805.11 See
new 8 CFR 106.4(c).
A request for premium processing
postmarked on or after February 26,
2024 must include the new fee. A
premium processing request must be
submitted on USCIS Form I–907,
Request for Premium Processing, 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, and in a separate
remittance from, other filing fees. See 8
CFR 106.4(b).
USCIS is adjusting current premium
processing fees to ensure that the
premium processing fees keep pace with
inflation as contemplated by Congress
in the USCIS Stabilization Act. It is
USCIS’ intention that premium
processing fees will be adjusted
biennially to consistently protect the
real dollar value of the premium
processing service that USCIS provides.
When making an inflationary
adjustment to the premium processing
fees provided by INA 286(u)(3)(C), 8
U.S.C. 1356(u)(3)(C), the adjustment is
limited to the percentage by which the
CPI–U for the month of June preceding
the date on which such adjustment
takes effect exceeds the CPI–U for the
same month of the second preceding
calendar year. By consistently adjusting
premium processing fees biennially
USCIS will fully capture any increase in
inflation that could be missed by
increasing premium processing fees
9 The latest CPI–U data is available at https://
data.bls.gov/cgi-bin/surveymost?bls (last visited 07/
27/2023). Select CPI–U 1982–84 = 100
(Unadjusted)—CUUR0000SA0 and click the
Retrieve data button.
10 DHS calculated this by subtracting the June
2021 CPI–U (271.696) from the June 2023 CPI–U
(305.109), then dividing the result (33.413) by the
June 2021 CPI–U (271.696). Calculation:
(305.109¥271.696)/271.696 = .1230 × 100 = 12.30
percent.
11 DHS generally rounds USCIS fees that it
establishes by rulemaking to the nearest $5
increment. See e.g., 81 FR 73292, 73303 (Oct. 24,
2016).
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over periods of time greater than two
years.
DHS will use the revenue generated
by the premium processing fee increase
to provide premium processing services;
make improvements to adjudications
processes; respond to adjudication
demands, including reducing benefit
request processing backlogs; and
otherwise fund USCIS adjudication and
naturalization services.
On January 4, 2023, DHS proposed
new fees to replace its current fee
schedule in its entirety. See, U.S.
Citizenship and Immigration Services
Fee Schedule and Changes to Certain
Other Immigration Benefit Request
Requirements, 88 FR 402 (Jan. 4, 2023)
(2023 Proposed Fee Rule).12 The 2023
Proposed Fee Rule proposed to
republish 8 CFR 106.4(c) Designated
benefit requests and fee amounts as it
was codified in the final rule entitled,
‘‘Implementation of the Emergency
Stopgap USCIS Stabilization Act,’’ on
March 30, 2022 without adjusting any of
the fees for premium processing. Id. at
595. As the 2023 Proposed Fee Rule has
not yet been finalized, this rule would
replace the premium processing fees at
8 CFR 106.4(c) that were set by the
USCIS Stabilization Act and codified in
the USCIS Stabilization Rule. See new
8 CFR 106.4(c).
III. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act
generally requires agencies to issue a
proposed rule before issuing a final rule,
subject to certain exceptions. See 5
U.S.C. 553(b). Section 286(u)(3)(C) of
the INA, 8 U.S.C. 1356 (u)(3)(C),
exempts DHS from the requirements of
5 U.S.C. 553. Section 286(u)(3)(C) of the
INA, 8 U.S.C. 1356(u)(3)(C), specifically
provides that ‘‘the provisions of section
553 of Title 5 shall not apply to an
adjustment authorized under [section
286(u)(3)(C) of the INA, 8 U.S.C.
1356(u)(3)(C)].’’ Therefore, DHS is not
required to issue a proposed rule when
adjusting premium fees under section
286(u)(3)(C) of the INA, 8 U.S.C. 1356
(u)(3)(C).
The regulations at 8 CFR 106.4(d)
provide that fees to request premium
processing service may be adjusted by
notice in the Federal Register. However,
the Federal Register Act (44 U.S.C.
1510) and its implementing regulations
(1 CFR part 21) provide that publishing
12 On January 9, 2023, USCIS published a
correction to the 2023 Proposed Fee Rule to correct
two fees that were erroneous as the result of
typographical errors. See U.S. Citizenship and
Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request
Requirements; Correction, 88 FR 1172 (Jan. 9, 2023).
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a Notice document in the Federal
Register announcing a new fee amount,
without amending the regulations, does
not effectuate a change of the Code of
Federal Regulations (CFR). Because
current premium processing fees are
codified in the CFR, it is necessary for
DHS to publish this rule to amend the
regulatory text.
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). This action is not subject to the
written statement requirements of the
Unfunded Mandates Reform Act of 1995
(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.
Executive Order 12988 (Civil Justice
Reform)
This rule was drafted and reviewed in
accordance with Executive Order (E.O.)
12988, Civil Justice Reform. DHS has
determined that this final rule meets the
applicable standards provided in
section 3 of E.O. 12988.
National Environmental Policy Act
The Department is not aware of any
significant impact on the environment,
or any change in environment that
would result from the changes in fees.
The Department finds that promulgation
of this rule clearly fits within categorical
exclusion A3, as established in DHS’s
National Environmental Policy Act
(NEPA) implementing procedures set
forth in DHS’s Directive 023–01,
Revision 01, and Instruction Manual
023–01–001–01, Revision 01
(‘‘Instruction Manual’’) Appendix A,
Table 1.
This rule is a standalone rule and is
not part of any larger action. This rule
would not result in any major Federal
action that would significantly affect the
quality of the human environment.
Furthermore, the Departments have
determined that no extraordinary
circumstances exist that would create
the potential for significant
environmental effects. Therefore, this
rule is categorically excluded from
further NEPA review.
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
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104–121, 110 Stat. 847, 868, et seq. The
Office of Information and Regulatory
Affairs has determined that this rule is
a major rule as defined by the CRA. DHS
has complied with the CRA’s reporting
requirements and has sent this final rule
to Congress and to the Comptroller
General as required by 5 U.S.C.
801(a)(1).
Executive Order 12866
Executive Orders 12866 (Regulatory
Planning and Review), as amended by
Executive Order 14094 (Modernizing
Regulatory Review), and 13563
(Improving Regulation and Regulatory
Review) direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. The Office
of Management and Budget (OMB) has
not designated this rule a ‘‘significant
regulatory action’’ as defined under
section 3(f) of E.O. 12866, as amended
by Executive Order 14094. Accordingly,
OMB has not reviewed this rule.
DHS estimates an additional annual
transfer of $184,715,135 in revenue to
be collected from fee-paying applicants
and petitioners (public) to DHS, due to
the increase in premium processing fees
subject to an adjustment for inflation
(Table 1).13
TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS OF THE FINAL RULE
Description of changes to
provisions
Estimated annual form receipts
This rule increased the premium processing fees for
Form I–129. The premium
processing fee for H–2B and
R–1 nonimmigrant status will
increase from $1,500 to
$1,685.
The premium processing fee
for all other available Form I–
129 classifications (E–1, E–
2, E–3, H–1B, H–3, L–1A, L–
1B, LZ, O–1, O–2, P–1, P–
1S, P–2, P–2S, P–3, P–3S,
Q–1, TN–1, and TN–2) will
increase from $2,500 to
$2,805.
This rule increased the premium processing fees for
Form I–140. The premium
processing fee for employment-based (EB) classifications E11, E12, E21 (nonNIW), E31, E32, EW3, as
well as recently available
E13 and E21 (NIW), will increase from $2,500 to
$2,805.
This rule increased the premium processing fees for
Form I–539 classifications F–
1, F–2, M–1, M–2, J–1, J–2,
E–1, E–2, E–3, L–2, H–4, O–
3, P–4, and R–2. The premium processing fee for this
population will increase from
$1,750 to $1,965.
This rule increased the premium processing fees for
Form I–765. The premium
processing fee for certain F–
1 students will increase from
$1,500 to $1,685.
Form I–129 H–2B and R–1
Classifications: 10,892.
All other Form I–129 Classifications: 310,146.
Total Form I–129 receipts:
321,038.
This will result in an increase in transfer payments from the
Form I–129 fee-paying population to DHS of $96,609,550.
Form I–140 E11, E12, E21
(non-NIW), E31, E32, EW3
Classifications: 85,399.
Form I–140 E13 and E21
(NIW) Classifications:
40,800.
Total Form I–140 receipts:
126,199.
This will result in an increase in transfer payments from the
Form I–140 fee-paying population to DHS of $38,490,695.
Form I–539 F–1, F–2, M–1, M–
2, J–1, J–2 Classifications:
11,144.
Form I–539 E–2, E–3, L–2, H–
4, O–3, P–4, and R–2 Classifications: 71,160.
Total Form I–539 receipts:
82,304.
This will result in an increase in transfer payments from the
Form I–539 fee-paying population to DHS of $17,695,360.
Form I–765 OPT and OPT–
STEM Classifications Currently Eligible: 114,116.
Form I–765 Classifications
Likely Eligible in the Future:
58,422.
Total Form I–765 receipts:
172,538.
This will result in an increase in transfer payments from the
Form I–765 fee-paying population to DHS of $31,919,530.
Rule provisions
1. Form I–129, Petition for a
Nonimmigrant Worker.
2. Form I–140, Immigrant Petition for Alien Workers.
3. Form I–539, Application to
Extend/Change Nonimmigrant
Status.
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4. Form I–765, Application for
Employment Authorization.
13 Additional revenue collected calculation:
$96,609,550 + $38,490,695 + $17,695,360 +
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Estimated annual change in transfers
$31,919,530 = $184,715,135 for forms I–129, I–140,
I–539 and I–765, respectively.
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In addition to the impacts
summarized above, the table below
presents the prepared accounting
statement showing the costs and
89543
benefits to each individual affected by
this final rule.14
OMB A–4 ACCOUNTING STATEMENT
[$ Millions, FY 2022; Time period: FY 2024 through FY 2025]
Category
Primary estimate
Minimum estimate
Maximum estimate
Source citation
BENEFITS
Monetized Benefits ..............................................
N/A
Annualized quantified, but unmonetized, benefits
N/A
Regulatory Impact Analysis (‘‘RIA’’) See E.O.
12866.
N/A
I
Unquantified Benefits ..........................................
N/A
I
E.O. 12866.
N/A
E.O. 12866.
COSTS
Annualized monetized costs (7%) .......................
Annualized monetized costs (3%) .......................
N/A
N/A
N/A
N/A
I
Annualized quantified, but unmonetized, costs ...
N/A
N/A
I
E.O. 12866.
N/A
Qualitative (unquantified) costs ...........................
N/A
E.O 12866.
TRANSFERS
Annualized monetized transfers ..........................
$184.7
N/A
I
N/A
I
E.O. 12866.
From whom to whom? .........................................
From the fee-paying applicants and petitioners of Form I–129, I–
140, I–539, and I–765 to DHS.
Qualitative (unquantified) transfers .....................
None
Miscellaneous Analyses/Category .......................
Effects
Effects on State, local, or tribal governments .....
None
None.
Effects on small businesses ................................
None
None.
Effects on wages .................................................
None
None.
Effects on growth .................................................
None
None.
Table 2 shows the estimated total
receipts received and refunds issued by
USCIS for Form I–907, Request for
Premium Processing Service, from fiscal
None.
Source Citation.
year (FY) 2018 through FY 2022. Based
on a 5-year annual average, DHS
estimates the annual receipts for Form
I–907 to be 406,437 for the biennial
period after this rule takes effect. In
addition, based on the 5-year average,
the annual number of refunds issued for
Form I–907 is estimated to be 297.15
TABLE 2—FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, RECEIPTS AND REFUNDS ISSUED, FY 2018
THROUGH FY 2022
Form I–907 receipts
Form I–907 refunds *
FY
Form I–129
2018
2019
2020
2021
2022
Form I–140
Total
Form I–129
Form I–140
Total
.........................................................................
.........................................................................
.........................................................................
.........................................................................
.........................................................................
292,297
333,175
276,107
309,596
394,015
78,232
79,752
64,529
107,908
96,573
370,529
412,927
340,636
417,504
490,588
123
259
500
89
167
101
48
51
126
22
224
307
551
215
189
Total .................................................................
1,605,190
426,994
2,032,184
1,138
348
1,486
5-year Annual Average .............................
321,038
85,399
406,437
228
70
297
khammond on DSKJM1Z7X2PROD with RULES
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
* Note: For refunds, the report reflects the most up-to-date data available at the time the system was queried. Any duplicate case information
has been removed.
14 White House, OMB, Circular A–4 (April 6,
2023), available at https://www.whitehouse.gov/wpcontent/uploads/2023/04/DraftCircularA-4.pdf (last
viewed Aug 3, 2023).
15 USCIS presents data on refunds issued by
USCIS because 8 CFR 106 guarantees processing for
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premium processing requests within 15, 30 or 45
days. The required period generally begins when
USCIS properly receives the correct version of Form
I–907, Request for Premium Processing Service,
with fee, at the correct filing address or the date that
all prerequisites for adjudication, the form
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prescribed by USCIS, and fee(s) are received by
USCIS. Within the required period, USCIS will
issue either an approval notice, denial notice,
notice of intent to deny, or request for evidence, or
open an investigation for fraud or
misrepresentation.
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Table 3 shows the percentage of the
eligible Form I–129, Petition for NonImmigrant Worker, petitioners who
opted to submit a premium processing
request along with their Form I–129
from FY 2018 through FY 2022. The 5year annual average percentage of
eligible Form I–129 petitioners who
choose to submit a premium processing
request was 57 percent.
TABLE 3—FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, FILED WITH FORM I–129, PETITION FOR A
NONIMMIGRANT WORKER, FY 2018 THROUGH FY 2022
Total Form I–129
receipts
FY
2018
2019
2020
2021
2022
Total Form I–129
petitions submitted
with Form I–907
Percentage of
Form I–907 receipts
that come with
Form I–129
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
548,910
551,789
555,058
531,851
629,424
292,297
333,175
276,107
309,596
394,015
53
60
50
58
63
Total ..................................................................................................
2,817,032
1,605,190
....................................
5-year Annual Average .............................................................
563,406
321,038
57
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
Table 4 shows the percentage of the
eligible Form I–140, Immigrant Petition
for Alien Workers, petitioners who
chose to submit a premium processing
request from FY 2018 through FY 2022.
Through FY 2022, not all Form I–140
petitioners are eligible for premium
processing; therefore, DHS only
discusses the percentage of those who
are eligible for premium processing
during these fiscal years compared to
the total number of premium processing
requests submitted.16 The 5-year annual
average percentage of eligible Form I–
140 petitioners who chose to submit a
premium processing request was 53
percent.
TABLE 4—FORM I–140 RECEIPTS ELIGIBLE FOR PREMIUM PROCESSING, FY 2018 THROUGH FY 2022
Total Form I–140
petitions eligible for
premium processing
FY
2018
2019
2020
2021
2022
Total Form I–140
petitions submitted
with Form I–907
Percentage of
Form I–907 receipts
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
62,262
70,215
65,029
112,521
91,605
35,889
34,958
29,060
65,685
48,616
58
50
45
58
53
Total ..................................................................................................
401,632
214,208
....................................
5-year Annual Average .............................................................
80,326
42,842
53
khammond on DSKJM1Z7X2PROD with RULES
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
Note: Form I–140 eligible petitioners include the following classifications are currently designated for premium processing: EB–1 Aliens of extraordinary ability (E11), EB–1 Outstanding professors and researchers (E12), EB–2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver (E21), EB–3 Skilled workers (E31), EB–3 Professionals (E32), and EB–3 Workers other than
skilled workers and professionals (EW3).
To estimate the probability that an
eligible petitioner may choose to request
premium processing, DHS computes a
ratio of the 5-year annual average
number of requests to the 5-year annual
average number of eligible petitioners.
Table 5 shows that of those currently
eligible for premium processing, 57
percent chose to submit a premium
processing request. Based on prior
agency experience,17 DHS assumes that
the demand rate will carry forward and
will use this percentage to estimate the
possible adoption volumes of Form I–
140, Immigrant Petition for Alien
Workers, Multinational Executives and
Managers (E–13) and Members of
professions with advanced degrees or
exceptional ability seeking a national
interest waiver (E–21); 18 Form I–539,
Application to Extend/Change
Nonimmigrant Status; and I–765,
Application for Employment
Authorization, applicants.
16 For more information on eligibility, please see
‘‘How Do I Request Premium Processing?’’ https://
www.uscis.gov/forms/all-forms/how-do-i-requestpremium-processing (last visited Aug 3, 2023).
17 Table 7 in the ‘‘Implementation of the
Emergency Stopgap USCIS Stabilization Act’’ rule
at 87 FR 18241 shows that in FY 2021, when the
fee was increased, Form I–129 petitioners were still
willing to pay for premium processing. ‘‘This
provides suggestive evidence that petitioners’
demand for premium processing is insensitive to
the price increases effected by [the USCIS
Stabilization] rule.’’
18 The USCIS Stabilization Act, codified by the
USCIS Stabilization rule, established E–13
multinational executive and manager petitioner and
E–21 national interest waiver petitioners eligible for
premium processing. USCIS began accepting Form
I–907 applications for these petitioners beginning
January 30, 2023. See https://www.uscis.gov/
newsroom/alerts/uscis-announces-final-phase-ofpremium-processing-expansion-for-eb-1-and-eb-2form-i-140-petitions. Because of the short time
period USCIS has been accepting Form I–907
applications for these petitioners, USCIS uses the
historical 5-year average of 57 percent submission
rate to estimate their possible premium processing
request adoption volumes.
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TABLE 5—PERCENTAGE OF PREMIUM PROCESSING REQUESTS, FY 2018 THROUGH FY 2022
5-year annual
average of Forms
submitted with Form
I–907
5-year annual
average of total
receipts by Form
Percentage of Form
I–907 receipts
Form I–129 ..............................................................................................
Form I–140 ..............................................................................................
321,038
42,842
563,406
80,326
57
53
Total ..................................................................................................
363,880
643,732
57
Source: USCIS Analysis.
(a) Form I–129, Petition for a
Nonimmigrant Worker, Transfer
Payments
Currently, petitioners requesting
certain benefits on Form I–129, Petition
for a Nonimmigrant Worker, are eligible
to also submit a request for premium
processing with their immigration
benefit request. Table 6 shows the
population of petitioners who submitted
Form I–907 with Form I–129 based on
the corresponding nonimmigrant
classifications from FY 2018 through FY
2022.
Based on a 5-year annual average,
DHS estimates the annual receipts from
Form I–907 filed with Form I–129 H–2B
or R–1 classifications to be 10,892.
Based on a 5-year annual average, DHS
estimates the annual receipts for Form
I–907 associated with all other Forms I–
129 to be 310,146.
TABLE 6—FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, FILED WITH FORM I–129, PETITION FOR A
NONIMMIGRANT WORKER, FY 2018 THROUGH FY 2022
Form I–129 H–2B
or R–1
request receipts
FY
2018
2019
2020
2021
2022
Form I–129 all
other visa request
receipts *
Total Form I–907
receipts
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
9,127
10,505
7,125
11,866
15,838
283,170
322,670
268,982
297,730
378,177
292,297
333,175
276,107
309,596
394,015
Total ..................................................................................................
54,461
1,550,729
1,605,190
5-year Annual Average .............................................................
10,892
310,146
321,038
khammond on DSKJM1Z7X2PROD with RULES
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
* Note: All other includes the following classifications: E–1, E–2, E–3, H–1B, H–2A, H–3, L–1A, L–1B, LZ, O–1, O–2, P–1, P–1S, P–2, P–2S,
P–3, P–3S, Q–1, TN–1, and TN–2. H–2B or R–1 equals 3.4% and All other I–129 equals 96.6%. of Total Form I–907 Receipts filed with a Form
I–129 petition.
This rule increases the premium
processing fees for Form I–129. The
premium processing fee for H–2B or R–
1 nonimmigrant status will increase
from $1,500 to $1,685, an increase of
$185, which is the result of a 12.3
percent increase in the CPI–U from June
2021 to June 2023.19 The premium fee
for all other available Form I–129
classifications (E–1, E–2, E–3, H–1B, H–
3, L–1A, L–1B, LZ, O–1, O–2, P–1, P–
1S, P–2, P–2S, P–3, P–3S, Q–1, TN–1,
and TN–2) will increase from $2,500 to
$2,805, an increase of $305. Because the
fee for premium processing for the Form
I–129 H–2B and R–1 classifications will
increase by a different amount than for
all other Form I–129 classifications, the
data for the Form I–129 H–2B and R–1
classifications data was separated from
the data for all other classifications.
Based on a 5-year annual average,
DHS estimates an additional $2,015,020
annually in transfer payments will be
collected from these new, higher
premium processing fees for Forms H–
2B and R–1.20 DHS will collect an
additional $94,594,530 annually in
transfer payments from premium
processing requestors filing Form I–129
for all other visa classifications to DHS,
based on a 5-year annual average.21
Accordingly, DHS estimates the total
increase in transfer payments from the
Form I–129 fee-paying population to
DHS will be $96,609,550 (Table 7)
annually, for the biennial period after
this rule takes effect.
19 DHS calculated this by subtracting the June
2021 CPI–U (271.696) from the June 2023 CPI–U
(305.109), then dividing the result (33.413) by the
June 2021 CPI–U (271.696). Calculation:
(305.109¥271.696)/271.696 = .1230 × 100 = 12.3
percent.
20 Calculation: 10,892 annual Form I–129 H–2B or
R–1 petitions * $185 ($1,685 fee¥$1,500 fee) =
$2,015,020.
21 Calculation: 310,146 annual Form I–129
petitions for other than H–2B and R–1
classifications * 305 ($2,805 fee¥$2,500 fee) =
$94,594,530.
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TABLE 7—FEES FOR FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, FILED WITH FORM I–129, PETITION
FOR A NONIMMIGRANT WORKER
5-Year annual
average receipts
(FY 2018 through
FY 2022)
Period of analysis
Fee
Total annual
fee revenue
Post-USCIS Stabilization Act (Baseline Costs) .....................................................................
2023 CPI–U Adjustment ........................................................................................................
10,892
10,892
$1,500
1,685
$16,338,000
18,353,020
Change in Transfer Payments for Form I–129 H–2B and R–1 .....................................
Post-USCIS Stabilization Act (Baseline Costs) .....................................................................
2023 CPI–U Adjustment ........................................................................................................
....................................
310,146
310,146
..................
2,500
2,805
2,015,020
775,365,000
869,959,530
Change in Transfer Payments for Form I–129 All Other * .............................................
....................................
..................
94,594,530
Total Change in Transfer Payments for Form I–129 ..............................................
....................................
..................
96,609,550
Source: USCIS Analysis.
* Note: All other includes the following classifications (E–1, E–2, E–3, H–1B, H–2A, H–3, L–1A, L–1B, LZ, O–1, O–2, P–1, P–1S, P–2, P–2S,
P–3, P–3S, Q–1, TN–1, and TN–2).
(b) Form I–140, Immigrant Petition for
Alien Worker, Transfer Payments
The estimated population of
petitioners who submitted Form I–907,
Request for Premium Processing
Service, with Form I–140, Immigrant
Petition for Alien Workers, based on the
corresponding employment-based (EB)
classifications that are currently
designated for premium processing is
85,399 (Table 2) per year.22 The fee for
all Form I–140 petitioners requesting
premium processing will increase from
$2,500 to $2,805, based off the 12.3
percent increase in the CPI–U from June
2021 to June 2023.23 Using the historical
5-year annual average from FY 2018
through FY 2022, DHS estimates that as
a result of the increase in filing fees for
premium processing the additional
annual transfer payments from the Form
I–140 fee-paying population to DHS will
be $26,046,695 (Table 8) for the biennial
period after this rule takes effect.
TABLE 8—FEES FOR FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, CURRENTLY FILED WITH FORM I–140,
IMMIGRANT PETITION FOR ALIEN WORKERS *
5-Year annual
average receipts
(FY 2018 through
FY 2022)
Period of analysis
Fee
Total annual
fee revenue
Post-USCIS Stabilization Act (Baseline Costs) .....................................................................
2023 CPI–U Adjustment ........................................................................................................
85,399
85,399
$2,500
2,805
$213,497,500
239,544,195
Total Change in Transfer Payments for Form I–140 .....................................................
....................................
..................
$26,046,695
Source: USCIS Analysis.
* Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3.
As of January 30, 2023, Form I–140
petitions under an E13 multinational
executive and manager classification
and petitions under an E21 national
interest waiver (NIW) classification are
eligible to request premium
processing.24 Table 9 shows the
estimated E13 multinational executive
and manager classification and E21
(NIW) classification populations that are
now eligible for premium processing.
Based on a 5-year annual average, DHS
estimates the annual average receipts of
Form I–140, E13 to be 11,752 and Form
I–140, E21 to be 59,827 for a total of
71,579.
TABLE 9—FORM I–140, IMMIGRANT PETITION FOR ALIEN WORKERS, E13 AND E21 CLASSIFICATIONS, FY 2018 THROUGH
FY 2022
khammond on DSKJM1Z7X2PROD with RULES
FY
2018
2019
2020
2021
2022
E13
E21 (NIW)
Total
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
13,596
12,489
11,220
10,279
11,178
61,650
65,718
53,288
55,991
62,487
75,246
78,207
64,508
66,270
73,665
Total ..................................................................................................
58,762
299,134
357,896
5-year Annual Average .............................................................
11,752
59,827
71,579
Sources: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
22 See
supra FN 16.
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Since E13 and E21 (NIW) Form I–140
applicants have only been recently
eligible to request premium processing,
DHS has no historical data to determine
how many of the newly eligible
population will take advantage of
premium processing. Therefore, DHS
uses the 57 percent average of Forms I–
129 and Forms I–140 developed in
Table 5, that request premium
processing for this newly eligible
population as a proxy. DHS is using the
same methodology to estimate the
transfers from the USCIS Stabilization
Rule, because there is insufficient
current data available for this
population.25
Table 10 shows the total population
by percentage for E13 and E21 (NIW)
petitioners who may choose to file Form
I–140. The estimated population of
petitioners who are projected to submit
Form I–907, Request for Premium
Processing Service, with Form I–140,
Immigrant Petition for Alien Workers,
based on the corresponding E13 and E21
(NIW) classifications that were recently
designated for premium processing is
40,800 (Table 10) per year.
TABLE 10—FORM I–140, IMMIGRANT PETITION FOR ALIEN WORKER, ESTIMATED ANNUAL AVERAGE PETITIONS FILED FOR
PREMIUM PROCESSING, BY CLASSIFICATION, FY 2018 THROUGH FY 2022
Percent
E13
E21 (NIW)
Total
Estimate of Eligible Form I–140 Petitions (57%) ....................................
A 6,699
B 34,101
40,800
6,699 = 11,752 (Table 9) × 0.57.
34,101 = 59,827 (Table 9) × 0.57.
Source: USCIS Analysis.
A Calculation:
B Calculation:
Using this historical 5-year annual
average from FY 2018 through FY 2022,
DHS estimates that as a result of the
increase in filing fees for premium
processing the additional annual
transfer payments from these Form I–
140 fee-paying populations to DHS will
be $12,444,000 (Table 11), for the
biennial period after this rule takes
effect.
TABLE 11—FEES FOR FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, CURRENTLY FILED WITH FORM I–
140, IMMIGRANT PETITION FOR ALIEN WORKERS *
5-Year Annual
average receipts
(FY 2018 through
FY 2022)
Period of analysis
Fee
Total annual
fee revenue
Post-USCIS Stabilization Act (Baseline Costs) .....................................................................
2023 CPI–U Adjustment ........................................................................................................
40,800
40,800
$2,500
2,805
$102,000,000
114,444,000
Total Change in Transfer Payments for Form I–140 .....................................................
....................................
..................
12,444,000
Source: USCIS Analysis.
* Note: Classifications: E13 and E21 (NIW).
Total estimated transfer payments for
Form I–140, Immigrant Petition for
Alien Worker, is $38,490,695
($26,046,695 + $12,444,000) per year.
(c) Form I–539, Application To Extend/
Change Nonimmigrant Status, Transfer
Payments
The USCIS Stabilization Act
authorized USCIS to permit premium
processing for newly eligible Form I–
539 filers. Per the statute, the fee was
originally set at $1,750. In June 2023,
USCIS announced eligibility for, F–1, F–
2, J–1, J–2, M–1, and M–2 change of
status filers.26 This newly eligible
population of filers are students and
exchange visitors. Because premium
processing was allowed for these
classifications recently, DHS does not
know how many currently eligible Form
I–539 applicants will choose to submit
a premium processing request. For
purposes of this analysis, we present
historical Form I–539 filing rates and
use projections of the premium
processing demand rates for Form I–129
and Form I–140 filers to estimate the
change in transfer payments as a result
of the inflationary adjustment.
Table 12 shows the 5-year annual
average receipt volumes for the
classifications that are now eligible for
premium processing for FY 2018
through FY 2022. DHS estimates the 5year annual average of the currently
eligible F–1, F–2, J–1, J–2, M–1, M–2
classifications to be 19,550, and the 5year annual average of the future
eligible E–1, E–2, E–3, L–2, H–4, O–3,
P–4, R–2 classifications to be 124,842.
TABLE 12—USCIS TOTAL OF FORM I–539, APPLICATION TO EXTEND/CHANGE NONIMMIGRANT STATUS, RECEIPTS BY
CLASSIFICATION, FY 2018 THROUGH FY 2022
F–1, F–2, J–1, J–2,
M–1, M–2 Total
khammond on DSKJM1Z7X2PROD with RULES
FY
2018 .........................................................................................................................................
2019 .........................................................................................................................................
2020 .........................................................................................................................................
25 See
87 FR 18227.
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19,464
17,565
20,005
E–1, E–2, E–3, L–2,
H–4, O–3, P–4, R–2
Total
124,228
123,528
141,986
seeking-to-change-into-f-m-or-j-nonimmigrantstatus (last visited Aug 3, 2023).
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TABLE 12—USCIS TOTAL OF FORM I–539, APPLICATION TO EXTEND/CHANGE NONIMMIGRANT STATUS, RECEIPTS BY
CLASSIFICATION, FY 2018 THROUGH FY 2022—Continued
E–1, E–2, E–3, L–2,
H–4, O–3, P–4, R–2
Total
F–1, F–2, J–1, J–2,
M–1, M–2 Total
FY
2021 .........................................................................................................................................
2022 .........................................................................................................................................
16,645
24,072
124,055
110,414
Total ..................................................................................................................................
97,751
624,211
5-year Annual Average .............................................................................................
19,550
124,842
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, July 18, 2023.
DHS calculated that 19,550 of the
144,392 newly eligible applicants would
be applying for F–1, F–2, J–1, J–2, M–
1, M–2 classifications (14%), and the
remaining 124,842 would be applying
for E–1, E–2, E–3, L–2, H–4, O–3, P–4,
R–2 classifications (86%). DHS uses the
57 percent averages of those requesting
premium processing for Forms I–129
and I–140 for the newly eligible Form I–
539 population as a proxy.
Of the 19,550 newly eligible
applicants for F–1, F–2, J–1, J–2, M–1,
M–2 classifications per year, DHS
estimates that 11,144 applicants (57
percent of the eligible population,
rounded) may submit a premium
processing request along with their
Form I–539 application. Of the 124,842
newly eligible applicants for E–1, E–2,
E–3, L–2, H–4, O–3, P–4, R–2
classifications per year, DHS estimates
that 71,160 applicants (57 percent of the
eligible population, rounded) may
submit a premium processing request
along with their Form I–539 application
as shown in Table 13.
TABLE 13—ESTIMATED ANNUAL AVERAGE PREMIUM PROCESSING REQUESTS FOR FORM I–539, APPLICATION TO EXTEND/
CHANGE NONIMMIGRANT STATUS
Form I–539 5-year
annual
average receipts
(FY 2018 through
FY 2022)
Classification type
Pct.
requesting
prem. proc.
Total
F–1, F–2, J–1, J–2, M–1, M–2 classifications .........................................................................
E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classifications .......................................................
19,550
124,842
57
57
11,144
71,160
Total ..................................................................................................................................
................................
....................
82,304
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023.
The fee for all Form I–539 petitioners
requesting premium processing will
increase from $1,750 to $1,965, based
off of the 12.3 percent increase in the
CPI–U from June 2021 to June 2023.27
Using the estimated premium
processing requests developed in Table
13 above. In Table 14, DHS estimates
the increase in filing fees for premium
processing results in annual transfer
payments from the Form I–539 feepaying population to DHS of
$17,695,360, for the biennial period
after this rule takes effect.
TABLE 14—FEES FOR FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE, CURRENTLY FILED WITH FORM I–
539, APPLICATION TO EXTEND/CHANGE NONIMMIGRANT STATUS
5-Year annual
average receipts
(FY 2018 through
FY 2022)
Period of analysis
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F–1, F–2, J–1, J–2, M–1, M–2 classifications:
Post-USCIS Stabilization Act (Baseline Costs) ................................................................
2023 CPI–U Adjustment ...................................................................................................
Fee
Total annual
fee revenue
11,144
11,144
$1,750
1,965
$19,502,000
21,897,960
Total Transfer Payments ...........................................................................................
E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classifications:
Post-USCIS Stabilization Act (Baseline Costs) ................................................................
2023 CPI–U Adjustment ...................................................................................................
................................
....................
2,395,960
71,160
71,160
1,750
1,965
124,530,000
139,829,400
Total Transfer Payments ...........................................................................................
................................
....................
15,299,400
Total Change in Transfer Payments for Form I–539 .........................................
................................
....................
17,695,360
Source: USCIS Analysis.
27 See
supra FN 19.
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population of other I–765 categories the
USCIS Stabilization Rule projected to
become eligible for premium processing
in the near future. Based on a 5-year
annual average, DHS estimates the
annual average receipts of Form I–765
from the OPT and STEM–OPT
populations to be 200,204 for the
biennial period after this rule takes
effect. Additionally, DHS estimates the
annual average receipts to be 102,495
from additional categories of Form I–
765 that are likely to become eligible for
premium processing in the future.30
This population is included in Table 15
because Form I–765 categories that
become eligible in the near future may
be impacted by the inflationary
adjustments discussed in this rule. The
USCIS Stabilization Rule’s Regulatory
(d) Form I–765, Application for
Employment Authorization, Transfer
Payments
The USCIS Stabilization Act
authorized USCIS to permit premium
processing of the Form I–765,
Application for Employment
Authorization. The USCIS Stabilization
Act set the fee for the premium
processing of Form I–765 at $1,500.28
USCIS began premium processing for
Forms I–765 for students applying for
Optional Practical Training (OPT) and
students seeking science, technology,
engineering, and mathematics (STEM)
OPT extensions in March 2023.29
Table 15 shows the estimated OPT
and STEM–OPT populations that are
now eligible as well as the estimated
89549
Impact Analysis further projected
1,136,691 annual Form I–765 receipts
belonging to classifications for which
USCIS will consider, but has no
immediate plans to expand premium
processing eligibility as well as a final
group of 802,145 belonging to I–765
classifications USCIS is unlikely to ever
make eligible for premium processing.31
These projected groups are excluded
from Table 15 and this Rule’s analysis
because they are unlikely to be
impacted by the decision to adjust
premium processing fees for inflation
over this biennial cycle. These impacts
would be more appropriately quantified
in a future inflation adjustment rule,
when some reasonable expectation
exists that premium processing
eligibility is likely in the future.
TABLE 15—FORM I–765, APPLICATION FOR EMPLOYMENT AUTHORIZATION, CLASSIFICATIONS BY IMPLEMENTATION, FY
2017 THROUGH FY 2022
Form I–765 OPT and
STEM–OPT receipts
currently eligible
Form I–765 receipts
likely eligible
in the future
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
....................................
225,277
215,212
198,498
173,773
188,258
96,806
100,316
110,743
110,449
94,160
....................................
Total ..........................................................................................................................................
1,001,018
512,474
5-year Annual Average .....................................................................................................
200,204
102,495
FY
2017
2018
2019
2020
2021
2022
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Sources: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18, 2023; Implementation of the
Emergency Stopgap USCIS Stabilization Act, 87 FR 18227 (Mar. 30, 2022).
Since Form I–765 OPT and STEM–
OPT applicants have only been recently
eligible to request premium processing,
DHS has no historical data to determine
how many of the newly eligible
population will take advantage of
premium processing. Therefore, DHS
uses the 57 percent average of Forms I–
129 and I–140 developed in Table 5,
that request premium processing for this
newly eligible population as a proxy for
all eligible Form I–765 categories. DHS
used the same methodology to estimate
the transfers from the USCIS
Stabilization Rule.
DHS estimates that 114,116 applicants
(57 percent of the eligible population)
out of the 200,204 (Table 15) Form I–
765 OPT and STEM–OPT applicants
who apply annually may submit a
premium processing request with their
Form I–765 application.32 DHS also
estimates that 58,422 applicants (57
percent of the eligible population) out of
the 102,495 (Table 15) employment
authorization document applicants who
apply annually may become eligible to
submit a premium processing request
with their Form I–765 application in the
near future.33
In Table 16, DHS uses the 114,116
and 58,422 population estimates from
OPT and OPT–STEM population as well
as the likely future eligible Form I–765
population to DHS to estimate transfer
payments for each category. The fee for
all Form I–765 applicants requesting
premium processing will increase from
$1,500 to $1,685, based off the 12.3
percent increase in the CPI–U from June
2021 to June 2023.34 DHS estimates that
annual transfer payments from currently
eligible OPT and OPT–STEM Form I–
765 applicants requesting premium
processing using Form I–907 will be
$21,111,460 to DHS for the biennial
period after this rule takes effect. DHS
estimates that annual transfer payments
from likely future eligible will be
$10,808,070 to DHS. Accordingly, DHS
estimates that total annual transfer
payments from Form I–765 applicants
requesting request premium processing
using Form I–907 will be $31,919,530 to
DHS.
28 See USCIS Stabilization Act, Public Law 116–
159 at sec. 4102(b)(1)(D)(Oct. 1, 2020). See also 8
CFR 106.4(c).
29 See https://www.uscis.gov/newsroom/newsreleases/uscis-announces-premium-processing-newonline-filing-procedures-for-certain-f-1-studentsseeking-opt (last visited Aug. 3, 2023).
30 See Implementation of the Emergency Stopgap
USCIS Stabilization Act, 87 FR 18227 (Mar. 30,
2022) https://www.federalregister.gov/documents/
2022/03/30/2022-06742/implementation-of-theemergency-stopgap-uscis-stabilization-act#h-34.
31 The Implementation of the Emergency Stopgap
USCIS Stabilization Act Final Rule, published
March 30, 2022 estimated the number of newly
eligible applicants beginning around FY 2025 based
on data from FY 2017 through FY 2021 actuals.
This still serves as a reasonable measure should this
population become available for premium
processing in the near future. See 87 FR 18250.
32 Calculation: 200,204 applicants * 57 percent =
114,116.
33 Calculation: 102,495 applicants * 57 percent =
58,422.
34 See supra FN 19.
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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations
TABLE 16—FEES FOR FORM I–765, APPLICATION FOR EMPLOYMENT AUTHORIZATION, APPLICANTS REQUESTING PREMIUM
PROCESSING USING FORM I–907, REQUEST FOR PREMIUM PROCESSING SERVICE
5-Year annual
average receipts
(FY 2018 through
FY 2022)
Period of analysis
Fee
Total annual
fee revenue
Form I–765 OPT and OPT–STEM Receipts Currently Eligible:
Post-USCIS Stabilization Act (Baseline Costs) ..........................................................
2023 CPI–U Adjustment ....................................................................................................
114,116
114,116
$1,500
1,685
$171,174,000
192,285,460
Total Transfer Payments .....................................................................................
................................
....................
21,111,460
5-year annual
average receipts
(FY 2017 through
FY 2021)
Fee
Period of analysis
Total
Form I–765 Receipts Likely Eligible in the Future:
Post-USCIS Stabilization Act (Baseline Costs) ..........................................................
2023 CPI–U Adjustment .............................................................................................
58,422
58,422
$1,500
1,685
$87,633,000
98,441,070
Total Transfer Payments .....................................................................................
................................
....................
$10,808,070
Total Change in Transfer Payments for Form I–765 ...................................
................................
....................
$31,919,530
Source: USCIS Analysis.
Paperwork Reduction Act
Under the Paperwork Reduction Act
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. This rule does not impose any
reporting or recordkeeping requirements
under the Paperwork Reduction Act.
USCIS will update the fee for filing
USCIS Form I–907 as appropriate.
List of Subjects in 8 CFR Part 106
Fees, Immigration.
For the reasons set out in the
preamble, the Department of Homeland
Security amends 8 CFR part 106 as
follows:
PART 106—USCIS FEE SCHEDULE
1. The authority citation for part 106
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1254a,
1254b,1304, 1356; Pub. L.107-296; 48 U.S.C
1806; Pub. L. 115–218; Pub. L. 116–159.
2. Section 106.4 is amended by
revising paragraph (c) to read as follows:
■
§ 106.4
Premium processing service.
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*
*
*
*
*
(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—
$2,805.
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19:28 Dec 27, 2023
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(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—$2,805.
(3) Petition for classification of a
nonimmigrant described in section
101(a)(15)(H)(ii)(b) of the INA—$1,685.
(4) Petition for classification of a
nonimmigrant described in section
101(a)(15)(H)(iii) of the INA—$2,805.
(5) Petition for classification of a
nonimmigrant described in section
101(a)(15)(L) of the INA—$2,805.
(6) Petition for classification of a
nonimmigrant described in section
101(a)(15)(O)(i) or (ii) of the INA—
$2,805.
(7) Petition for classification of a
nonimmigrant described in section
101(a)(15)(P)(i), (ii), or (iii) of the INA—
$2,805.
(8) Petition for classification of a
nonimmigrant described in section
101(a)(15)(Q) of the INA—$2,805.
(9) Petition for classification of a
nonimmigrant described in section
101(a)(15)(R) of the INA—$1,685.
(10) Application for classification of a
nonimmigrant described in section
214(e) of the INA—$2,805.
(11) Petition for classification under
section 203(b)(1)(A) of the INA—$2,805.
(12) Petition for classification under
section 203(b)(1)(B) of the INA—$2,805.
(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—$2,805.
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(14) Petition for classification under
section 203(b)(3)(A)(i) of the INA—
$2,805.
(15) Petition for classification under
section 203(b)(3)(A)(ii) of the INA—
$2,805.
(16) Petition for classification under
section 203(b)(3)(A)(iii) of the INA—
$2,805.
(17) Petition for classification under
section 203(b)(1)(C) of the INA—$2,805.
(18) Petition for classification under
section 203(b)(2) of the INA involving a
waiver under section 203(b)(2)(B) of the
INA—$2,805.
(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—
$1,965.
(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—
$1,965.
(21) Application for employment
authorization—$1,685.
*
*
*
*
*
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
[FR Doc. 2023–28529 Filed 12–27–23; 8:45 am]
BILLING CODE 9111–97–P
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]]>Agencies
[Federal Register Volume 88, Number 248 (Thursday, December 28, 2023)]
[Rules and Regulations]
[Pages 89539-89550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28529]
=======================================================================
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 106
[CIS No. 2757-23; DHS Docket No. USCIS-2018-0003]
RIN 1615-ZC05
Adjustment to Premium Processing Fees
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is increasing
premium processing fees charged by U.S. Citizenship and Immigration
Services (USCIS) to reflect the amount of inflation from June 2021
through June 2023 according to the Consumer Price Index for All Urban
Consumers. The adjustment increases premium processing fees from $1,500
to $1,685, $1,750 to $1,965, and $2,500 to $2,805.
DATES:
Effective date: This rule is effective on February 26, 2024.
Compliance date: Requests for premium processing postmarked on or
after February 26, 2024 must include the new fee.
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).
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR--Code of Federal Regulations
CPI--Consumer Price Index
[[Page 89540]]
CPI-U--Consumer Price Index for All Urban Consumers DHS--Department
of Homeland Security
E.O.--Executive Order
Form I-129--Petition for a Nonimmigrant Worker
Form I-140--Immigrant Petition for Alien Workers
Form I-539--Application to Extend/Change Nonimmigrant Status
Form I-765--Application for Employment Authorization
FY--Fiscal Year
INA--Immigration and Nationality Act
NEPA--National Environmental Protection Act
NIW--National Interest Waiver
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
USCIS--U.S. Citizenship and Immigration Services
USCIS Stabilization Act--Emergency Stopgap USCIS Stabilization Act
USCIS Stabilization Rule--Implementation of the Emergency Stopgap
USCIS Stabilization Act Final Rule, published March 30, 2022
I. Background and Authority
Section 286(u) of the INA, 8 U.S.C. 1356(u), provides the Secretary
with authority to establish and collect a premium fee for the premium
processing of certain immigration benefit types.\1\ Premium processing
means that DHS collects a fee in addition to the regular filing fee
from persons seeking expedited processing of eligible immigration
benefit requests.\2\
---------------------------------------------------------------------------
\1\ ``Premium fees'' and ``premium processing fees'' are used
interchangeably throughout this rule.
\2\ See 8 CFR 1.2 for the definition of ``Benefit request''; See
8 CFR 106.4 for those immigration benefit requests currently
eligible for premium processing.
---------------------------------------------------------------------------
On October 1, 2020, the Continuing Appropriations Act, which
included the Emergency Stopgap USCIS Stabilization Act (USCIS
Stabilization Act), set new fees for premium processing of immigration
benefit requests that had been designated for premium processing as of
August 1, 2020, and expanded DHS authority to establish and collect new
premium processing fees, and to use those additional funds for expanded
purposes. See Emergency Stopgap USCIS Stabilization Act, Public Law
116-159, sec. 4102 (Oct. 1, 2020); INA sec. 286(u), 8 U.S.C. 1356(u).
On October 16, 2020, USCIS announced it would increase the fees for
premium processing, as required by the USCIS Stabilization Act,
effective October 19, 2020.\3\ As of that date, the fee for Form I-907,
Request for Premium Processing Service, increased from $1,440 to $2,500
for all immigration benefit requests that were designated for premium
processing as of August 1, 2020, with the exception that the premium
processing fee for petitioners filing Form I-129, Petition for a
Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status
increased from $1,440 to $1,500. USCIS further announced that, while
the USCIS Stabilization Act gave USCIS the ability to expand premium
processing to additional forms and immigration benefit requests, USCIS
was not yet taking such action and that any expansion of premium
processing to other forms would be implemented as provided in the
legislation.\4\
---------------------------------------------------------------------------
\3\ See USCIS, Premium Processing Fee Increase Effective Oct.
19, 2020, https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last visited July 19, 2023).
\4\ Id.
---------------------------------------------------------------------------
Effective May 31, 2022, DHS amended its premium processing
regulations to codify the fees set by the USCIS Stabilization Act and
establish new fees and processing timeframes consistent with the
conditions and eligibility requirements set forth by section 4102(b)(1)
of the USCIS Stabilization Act. See Final rule, Implementation of the
Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Rule),
87 FR 18227 (Mar. 30, 2022); see also 8 CFR 106.4. The fees established
by the USCIS Stabilization Act and codified by the USCIS Stabilization
Rule were as follows:
[cir] For all immigration benefit requests that were designated for
premium processing as of August 1, 2020, increased from $1,440 to
$2,500, with the exception that the premium processing fee for
petitioners filing Form I-129, Petition for a Nonimmigrant Worker,
requesting H-2B or R-1 nonimmigrant status increased from $1,440 to
$1,500.\5\
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\5\ See USCIS Stabilization Act, Public Law 116-159 at sec.
4102(a) (codified as amended at 8 U.S.C. 1356(u)(3)(A) (Oct. 1,
2020); USCIS Stabilization Rule, 87 FR 18227,18231 (Mar. 30, 2022).
See also 8 CFR 106.4(c).
---------------------------------------------------------------------------
[cir] For those requesting premium processing for EB-1 immigrant
classification as a multinational executive or manager or EB-2
immigrant classification as a member of professions with advanced
degrees or exceptional ability seeking a national interest waiver (NIW)
on Form I-140, Immigrant Petition for Alien Working, the fee was
established as $2,500.\6\
---------------------------------------------------------------------------
\6\ See id. at sec. 4102(b)(1)(A) (Oct. 1, 2020); USCIS
Stabilization Rule, 87 FR 18227,18231 (Mar. 30, 2022). See also 8
CFR 106.4(c).
---------------------------------------------------------------------------
[cir] For those requesting premium processing of a change of status
to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of
status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or
R-2 nonimmigrant status on Form I-539, Application to Extend/Change
Nonimmigrant Status, the fee was established as $1,750; \7\ and
---------------------------------------------------------------------------
\7\ See id. at sec. 4102(b)(1)(B)&(C) (Oct. 1, 2020); USCIS
Stabilization Rule, 87 FR 18227,18231 (Mar. 30, 2022). See also 8
CFR 106.4(c).
---------------------------------------------------------------------------
[cir] For those requesting premium processing for employment
authorization on Form I-765, Application for Employment Authorization,
the fee was established as $1,500.\8\
---------------------------------------------------------------------------
\8\ See id. at sec. 4102(b)(1)(D) (Oct. 1, 2020); USCIS
Stabilization Rule, 87 FR 18227,18231 (Mar. 30, 2022). See also 8
CFR 106.4(c).
---------------------------------------------------------------------------
USCIS is now increasing those premium processing fees provided by
Congress in the USCIS Stabilization Act and codified through the USCIS
Stabilization Rule by the inflationary adjustment calculation provided
by INA 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C). See USCIS Stabilization
Act, Public Law 116-159 (Oct. 1, 2020).
II. Basis for Adjustment
Section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), provides
that DHS may adjust the premium fees on a biennial basis by the
percentage by which the Consumer Price Index (CPI) for All Urban
Consumers for the month of June preceding the date on which such
adjustment takes effect exceeds the CPI for All Urban Consumers (CPI-U)
for the same month of the second preceding calendar year. See also 8
CFR 106.4(d) (codifying section 286(u)(3)(C) of the INA, 8 U.S.C.
1356(u)(3)(C) in 8 CFR part 106, USCIS Fee Schedule).
The USCIS Stabilization Act established the current premium
processing fees and the authority for DHS to adjust the premium fees on
a biennial basis on October 1, 2020. DHS has not adjusted the statutory
premium fees since October 1, 2020. As authorized by the USCIS
Stabilization Act, DHS is now increasing the statutory premium fees as
provided for by the USCIS Stabilization Act by the percentage by which
the CPI-U for the month of June preceding the date on which such
adjustment takes effect exceeds the CPI-U for the same month of the
second preceding calendar year. This rule is effective on February 26,
2024, therefore ``the month of June preceding the date on which such
adjustment takes effect'' is June 2023. As such, June 2021 is ``the
same month of the second preceding calendar year,'' because it is two
years before the June ``on which such adjustment takes effect.''
Therefore, DHS is using the CPI-U as of June 2023 as the end point and
June 2021 as the starting point for the period of inflation to
establish the new premium processing fees. In June
[[Page 89541]]
2021 the CPI-U was 271.696, and in June 2023 it was 305.109.\9\
Therefore, between June 2021 and June 2023, the CPI-U increased by
12.30 percent.\10\ When this percentage increase is applied to the
current premium processing fees, the premium processing fees that were
$1,500, increase to $1,685; the premium processing fees that were
$1,750, increase to $1,965; and the premium processing fees that were
$2,500, increase to $2,805.\11\ See new 8 CFR 106.4(c).
---------------------------------------------------------------------------
\9\ The latest CPI-U data is available at https://data.bls.gov/cgi-bin/surveymost?bls (last visited 07/27/2023). Select CPI-U 1982-
84 = 100 (Unadjusted)--CUUR0000SA0 and click the Retrieve data
button.
\10\ DHS calculated this by subtracting the June 2021 CPI-U
(271.696) from the June 2023 CPI-U (305.109), then dividing the
result (33.413) by the June 2021 CPI-U (271.696). Calculation:
(305.109-271.696)/271.696 = .1230 x 100 = 12.30 percent.
\11\ DHS generally rounds USCIS fees that it establishes by
rulemaking to the nearest $5 increment. See e.g., 81 FR 73292, 73303
(Oct. 24, 2016).
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A request for premium processing postmarked on or after February
26, 2024 must include the new fee. A premium processing request must be
submitted on USCIS Form I-907, Request for Premium Processing, 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, and in a separate remittance
from, other filing fees. See 8 CFR 106.4(b).
USCIS is adjusting current premium processing fees to ensure that
the premium processing fees keep pace with inflation as contemplated by
Congress in the USCIS Stabilization Act. It is USCIS' intention that
premium processing fees will be adjusted biennially to consistently
protect the real dollar value of the premium processing service that
USCIS provides. When making an inflationary adjustment to the premium
processing fees provided by INA 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C),
the adjustment is limited to the percentage by which the CPI-U for the
month of June preceding the date on which such adjustment takes effect
exceeds the CPI-U for the same month of the second preceding calendar
year. By consistently adjusting premium processing fees biennially
USCIS will fully capture any increase in inflation that could be missed
by increasing premium processing fees over periods of time greater than
two years.
DHS will use the revenue generated by the premium processing fee
increase to provide premium processing services; make improvements to
adjudications processes; respond to adjudication demands, including
reducing benefit request processing backlogs; and otherwise fund USCIS
adjudication and naturalization services.
On January 4, 2023, DHS proposed new fees to replace its current
fee schedule in its entirety. See, U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 88 FR 402 (Jan. 4, 2023) (2023 Proposed Fee
Rule).\12\ The 2023 Proposed Fee Rule proposed to republish 8 CFR
106.4(c) Designated benefit requests and fee amounts as it was codified
in the final rule entitled, ``Implementation of the Emergency Stopgap
USCIS Stabilization Act,'' on March 30, 2022 without adjusting any of
the fees for premium processing. Id. at 595. As the 2023 Proposed Fee
Rule has not yet been finalized, this rule would replace the premium
processing fees at 8 CFR 106.4(c) that were set by the USCIS
Stabilization Act and codified in the USCIS Stabilization Rule. See new
8 CFR 106.4(c).
---------------------------------------------------------------------------
\12\ On January 9, 2023, USCIS published a correction to the
2023 Proposed Fee Rule to correct two fees that were erroneous as
the result of typographical errors. See U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements; Correction, 88 FR 1172
(Jan. 9, 2023).
---------------------------------------------------------------------------
III. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act generally requires agencies to
issue a proposed rule before issuing a final rule, subject to certain
exceptions. See 5 U.S.C. 553(b). Section 286(u)(3)(C) of the INA, 8
U.S.C. 1356 (u)(3)(C), exempts DHS from the requirements of 5 U.S.C.
553. Section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C),
specifically provides that ``the provisions of section 553 of Title 5
shall not apply to an adjustment authorized under [section 286(u)(3)(C)
of the INA, 8 U.S.C. 1356(u)(3)(C)].'' Therefore, DHS is not required
to issue a proposed rule when adjusting premium fees under section
286(u)(3)(C) of the INA, 8 U.S.C. 1356 (u)(3)(C).
The regulations at 8 CFR 106.4(d) provide that fees to request
premium processing service may be adjusted by notice in the Federal
Register. However, the Federal Register Act (44 U.S.C. 1510) and its
implementing regulations (1 CFR part 21) provide that publishing a
Notice document in the Federal Register announcing a new fee amount,
without amending the regulations, does not effectuate a change of the
Code of Federal Regulations (CFR). Because current premium processing
fees are codified in the CFR, it is necessary for DHS to publish this
rule to amend the regulatory text.
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). This action
is not subject to the written statement requirements of the Unfunded
Mandates Reform Act of 1995 (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.
Executive Order 12988 (Civil Justice Reform)
This rule was drafted and reviewed in accordance with Executive
Order (E.O.) 12988, Civil Justice Reform. DHS has determined that this
final rule meets the applicable standards provided in section 3 of E.O.
12988.
National Environmental Policy Act
The Department is not aware of any significant impact on the
environment, or any change in environment that would result from the
changes in fees. The Department finds that promulgation of this rule
clearly fits within categorical exclusion A3, as established in DHS's
National Environmental Policy Act (NEPA) implementing procedures set
forth in DHS's Directive 023-01, Revision 01, and Instruction Manual
023-01-001-01, Revision 01 (``Instruction Manual'') Appendix A, Table
1.
This rule is a standalone rule and is not part of any larger
action. This rule would not result in any major Federal action that
would significantly affect the quality of the human environment.
Furthermore, the Departments have determined that no extraordinary
circumstances exist that would create the potential for significant
environmental effects. Therefore, this rule is categorically excluded
from further NEPA review.
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
[[Page 89542]]
104-121, 110 Stat. 847, 868, et seq. The Office of Information and
Regulatory Affairs has determined that this rule is a major rule as
defined by the CRA. DHS has complied with the CRA's reporting
requirements and has sent this final rule to Congress and to the
Comptroller General as required by 5 U.S.C. 801(a)(1).
Executive Order 12866
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The Office of Management and Budget (OMB) has not
designated this rule a ``significant regulatory action'' as defined
under section 3(f) of E.O. 12866, as amended by Executive Order 14094.
Accordingly, OMB has not reviewed this rule.
DHS estimates an additional annual transfer of $184,715,135 in
revenue to be collected from fee-paying applicants and petitioners
(public) to DHS, due to the increase in premium processing fees subject
to an adjustment for inflation (Table 1).\13\
---------------------------------------------------------------------------
\13\ Additional revenue collected calculation: $96,609,550 +
$38,490,695 + $17,695,360 + $31,919,530 = $184,715,135 for forms I-
129, I-140, I-539 and I-765, respectively.
Table 1--Summary of Provisions and Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
Description of changes Estimated annual form Estimated annual change in
Rule provisions to provisions receipts transfers
----------------------------------------------------------------------------------------------------------------
1. Form I-129, Petition for a This rule increased the Form I-129 H-2B and R- This will result in an
Nonimmigrant Worker. premium processing 1 Classifications: increase in transfer
fees for Form I-129. 10,892. payments from the Form I-
The premium processing All other Form I-129 129 fee-paying population
fee for H-2B and R-1 Classifications: to DHS of $96,609,550.
nonimmigrant status 310,146.
will increase from Total Form I-129
$1,500 to $1,685. receipts: 321,038.
The premium processing
fee for all other
available Form I-129
classifications (E-1,
E-2, E-3, H-1B, H-3, L-
1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-
2S, P-3, P-3S, Q-1, TN-
1, and TN-2) will
increase from $2,500
to $2,805.
2. Form I-140, Immigrant Petition This rule increased the Form I-140 E11, E12, This will result in an
for Alien Workers. premium processing E21 (non-NIW), E31, increase in transfer
fees for Form I-140. E32, EW3 payments from the Form I-
The premium processing Classifications: 140 fee-paying population
fee for employment- 85,399. to DHS of $38,490,695.
based (EB) Form I-140 E13 and E21
classifications E11, (NIW)
E12, E21 (non-NIW), Classifications:
E31, E32, EW3, as well 40,800.
as recently available Total Form I-140
E13 and E21 (NIW), receipts: 126,199.
will increase from
$2,500 to $2,805.
3. Form I-539, Application to This rule increased the Form I-539 F-1, F-2, M- This will result in an
Extend/Change Nonimmigrant Status. premium processing 1, M-2, J-1, J-2 increase in transfer
fees for Form I-539 Classifications: payments from the Form I-
classifications F-1, F- 11,144. 539 fee-paying population
2, M-1, M-2, J-1, J-2, Form I-539 E-2, E-3, L- to DHS of $17,695,360.
E-1, E-2, E-3, L-2, H- 2, H-4, O-3, P-4, and
4, O-3, P-4, and R-2. R-2 Classifications:
The premium processing 71,160.
fee for this Total Form I-539
population will receipts: 82,304.
increase from $1,750
to $1,965.
4. Form I-765, Application for This rule increased the Form I-765 OPT and OPT- This will result in an
Employment Authorization. premium processing STEM Classifications increase in transfer
fees for Form I-765. Currently Eligible: payments from the Form I-
The premium processing 114,116. 765 fee-paying population
fee for certain F-1 Form I-765 to DHS of $31,919,530.
students will increase Classifications
from $1,500 to $1,685. Likely Eligible in
the Future: 58,422.
Total Form I-765
receipts: 172,538.
----------------------------------------------------------------------------------------------------------------
[[Page 89543]]
In addition to the impacts summarized above, the table below
presents the prepared accounting statement showing the costs and
benefits to each individual affected by this final rule.\14\
---------------------------------------------------------------------------
\14\ White House, OMB, Circular A-4 (April 6, 2023), available
at https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf (last viewed Aug 3, 2023).
OMB A-4 Accounting Statement
[$ Millions, FY 2022; Time period: FY 2024 through FY 2025]
----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized Benefits............ N/A Regulatory Impact
Analysis
(``RIA'') See
E.O. 12866.
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A N/A N/A E.O. 12866.
unmonetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits......... N/A E.O. 12866.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs N/A N/A N/A E.O. 12866.
(7%).
Annualized monetized costs N/A N/A N/A
(3%).
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A
unmonetized, costs.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) N/A E.O 12866.
costs.
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers $184.7 N/A N/A E.O. 12866.
----------------------------------------------------------------------------------------------------------------
From whom to whom?............ From the fee-paying applicants and petitioners of Form I-129,
I-140, I-539, and I-765 to DHS.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) None None.
transfers.
----------------------------------------------------------------------------------------------------------------
Miscellaneous Analyses/ Effects Source Citation.
Category.
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or None None.
tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses... None None.
----------------------------------------------------------------------------------------------------------------
Effects on wages.............. None None.
----------------------------------------------------------------------------------------------------------------
Effects on growth............. None None.
----------------------------------------------------------------------------------------------------------------
Table 2 shows the estimated total receipts received and refunds
issued by USCIS for Form I-907, Request for Premium Processing Service,
from fiscal year (FY) 2018 through FY 2022. Based on a 5-year annual
average, DHS estimates the annual receipts for Form I-907 to be 406,437
for the biennial period after this rule takes effect. In addition,
based on the 5-year average, the annual number of refunds issued for
Form I-907 is estimated to be 297.\15\
---------------------------------------------------------------------------
\15\ USCIS presents data on refunds issued by USCIS because 8
CFR 106 guarantees processing for premium processing requests within
15, 30 or 45 days. The required period generally begins when USCIS
properly receives the correct version of Form I-907, Request for
Premium Processing Service, with fee, at the correct filing address
or the date that all prerequisites for adjudication, the form
prescribed by USCIS, and fee(s) are received by USCIS. Within the
required period, USCIS will issue either an approval notice, denial
notice, notice of intent to deny, or request for evidence, or open
an investigation for fraud or misrepresentation.
Table 2--Form I-907, Request for Premium Processing Service, Receipts and Refunds Issued, FY 2018 Through FY
2022
----------------------------------------------------------------------------------------------------------------
Form I-907 receipts Form I-907 refunds *
FY ----------------------------------------------------------------------------------
Form I-129 Form I-140 Total Form I-129 Form I-140 Total
----------------------------------------------------------------------------------------------------------------
2018......................... 292,297 78,232 370,529 123 101 224
2019......................... 333,175 79,752 412,927 259 48 307
2020......................... 276,107 64,529 340,636 500 51 551
2021......................... 309,596 107,908 417,504 89 126 215
2022......................... 394,015 96,573 490,588 167 22 189
----------------------------------------------------------------------------------
Total.................... 1,605,190 426,994 2,032,184 1,138 348 1,486
----------------------------------------------------------------------------------
5-year Annual Average 321,038 85,399 406,437 228 70 297
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
* Note: For refunds, the report reflects the most up-to-date data available at the time the system was queried.
Any duplicate case information has been removed.
[[Page 89544]]
Table 3 shows the percentage of the eligible Form I-129, Petition
for Non-Immigrant Worker, petitioners who opted to submit a premium
processing request along with their Form I-129 from FY 2018 through FY
2022. The 5-year annual average percentage of eligible Form I-129
petitioners who choose to submit a premium processing request was 57
percent.
Table 3--Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant
Worker, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Total Form I-129 Percentage of Form I-
FY Total Form I-129 petitions submitted 907 receipts that
receipts with Form I-907 come with Form I-129
----------------------------------------------------------------------------------------------------------------
2018.......................................... 548,910 292,297 53
2019.......................................... 551,789 333,175 60
2020.......................................... 555,058 276,107 50
2021.......................................... 531,851 309,596 58
2022.......................................... 629,424 394,015 63
-----------------------------------------------------------------
Total..................................... 2,817,032 1,605,190 ....................
-----------------------------------------------------------------
5-year Annual Average................. 563,406 321,038 57
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
Table 4 shows the percentage of the eligible Form I-140, Immigrant
Petition for Alien Workers, petitioners who chose to submit a premium
processing request from FY 2018 through FY 2022. Through FY 2022, not
all Form I-140 petitioners are eligible for premium processing;
therefore, DHS only discusses the percentage of those who are eligible
for premium processing during these fiscal years compared to the total
number of premium processing requests submitted.\16\ The 5-year annual
average percentage of eligible Form I-140 petitioners who chose to
submit a premium processing request was 53 percent.
---------------------------------------------------------------------------
\16\ For more information on eligibility, please see ``How Do I
Request Premium Processing?'' https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last visited Aug 3, 2023).
Table 4--Form I-140 Receipts Eligible for Premium Processing, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Total Form I-140
petitions eligible Total Form I-140 Percentage of Form I-
FY for premium petitions submitted 907 receipts
processing with Form I-907
----------------------------------------------------------------------------------------------------------------
2018.......................................... 62,262 35,889 58
2019.......................................... 70,215 34,958 50
2020.......................................... 65,029 29,060 45
2021.......................................... 112,521 65,685 58
2022.......................................... 91,605 48,616 53
-----------------------------------------------------------------
Total..................................... 401,632 214,208 ....................
-----------------------------------------------------------------
5-year Annual Average................. 80,326 42,842 53
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
Note: Form I-140 eligible petitioners include the following classifications are currently designated for premium
processing: EB-1 Aliens of extraordinary ability (E11), EB-1 Outstanding professors and researchers (E12), EB-
2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver
(E21), EB-3 Skilled workers (E31), EB-3 Professionals (E32), and EB-3 Workers other than skilled workers and
professionals (EW3).
To estimate the probability that an eligible petitioner may choose
to request premium processing, DHS computes a ratio of the 5-year
annual average number of requests to the 5-year annual average number
of eligible petitioners. Table 5 shows that of those currently eligible
for premium processing, 57 percent chose to submit a premium processing
request. Based on prior agency experience,\17\ DHS assumes that the
demand rate will carry forward and will use this percentage to estimate
the possible adoption volumes of Form I-140, Immigrant Petition for
Alien Workers, Multinational Executives and Managers (E-13) and Members
of professions with advanced degrees or exceptional ability seeking a
national interest waiver (E-21); \18\ Form I-539, Application to
Extend/Change Nonimmigrant Status; and I-765, Application for
Employment Authorization, applicants.
---------------------------------------------------------------------------
\17\ Table 7 in the ``Implementation of the Emergency Stopgap
USCIS Stabilization Act'' rule at 87 FR 18241 shows that in FY 2021,
when the fee was increased, Form I-129 petitioners were still
willing to pay for premium processing. ``This provides suggestive
evidence that petitioners' demand for premium processing is
insensitive to the price increases effected by [the USCIS
Stabilization] rule.''
\18\ The USCIS Stabilization Act, codified by the USCIS
Stabilization rule, established E-13 multinational executive and
manager petitioner and E-21 national interest waiver petitioners
eligible for premium processing. USCIS began accepting Form I-907
applications for these petitioners beginning January 30, 2023. See
https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions. Because of the short time period USCIS has been accepting
Form I-907 applications for these petitioners, USCIS uses the
historical 5-year average of 57 percent submission rate to estimate
their possible premium processing request adoption volumes.
[[Page 89545]]
Table 5--Percentage of Premium Processing Requests, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
5-year annual
average of Forms 5-year annual Percentage of Form I-
submitted with Form average of total 907 receipts
I-907 receipts by Form
----------------------------------------------------------------------------------------------------------------
Form I-129.................................... 321,038 563,406 57
Form I-140.................................... 42,842 80,326 53
-----------------------------------------------------------------
Total..................................... 363,880 643,732 57
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
(a) Form I-129, Petition for a Nonimmigrant Worker, Transfer Payments
Currently, petitioners requesting certain benefits on Form I-129,
Petition for a Nonimmigrant Worker, are eligible to also submit a
request for premium processing with their immigration benefit request.
Table 6 shows the population of petitioners who submitted Form I-907
with Form I-129 based on the corresponding nonimmigrant classifications
from FY 2018 through FY 2022.
Based on a 5-year annual average, DHS estimates the annual receipts
from Form I-907 filed with Form I-129 H-2B or R-1 classifications to be
10,892. Based on a 5-year annual average, DHS estimates the annual
receipts for Form I-907 associated with all other Forms I-129 to be
310,146.
---------------------------------------------------------------------------
\19\ DHS calculated this by subtracting the June 2021 CPI-U
(271.696) from the June 2023 CPI-U (305.109), then dividing the
result (33.413) by the June 2021 CPI-U (271.696). Calculation:
(305.109-271.696)/271.696 = .1230 x 100 = 12.3 percent.
Table 6--Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant
Worker, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Form I-129 all other
FY Form I-129 H-2B or R- visa request Total Form I-907
1 request receipts receipts * receipts
----------------------------------------------------------------------------------------------------------------
2018.......................................... 9,127 283,170 292,297
2019.......................................... 10,505 322,670 333,175
2020.......................................... 7,125 268,982 276,107
2021.......................................... 11,866 297,730 309,596
2022.......................................... 15,838 378,177 394,015
-----------------------------------------------------------------
Total..................................... 54,461 1,550,729 1,605,190
-----------------------------------------------------------------
5-year Annual Average................. 10,892 310,146 321,038
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
* Note: All other includes the following classifications: E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2. H-2B or R-1 equals 3.4% and All other I-129 equals
96.6%. of Total Form I-907 Receipts filed with a Form I-129 petition.
This rule increases the premium processing fees for Form I-129. The
premium processing fee for H-2B or R-1 nonimmigrant status will
increase from $1,500 to $1,685, an increase of $185, which is the
result of a 12.3 percent increase in the CPI-U from June 2021 to June
2023.\19\ The premium fee for all other available Form I-129
classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-
1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2) will increase from
$2,500 to $2,805, an increase of $305. Because the fee for premium
processing for the Form I-129 H-2B and R-1 classifications will
increase by a different amount than for all other Form I-129
classifications, the data for the Form I-129 H-2B and R-1
classifications data was separated from the data for all other
classifications.
Based on a 5-year annual average, DHS estimates an additional
$2,015,020 annually in transfer payments will be collected from these
new, higher premium processing fees for Forms H-2B and R-1.\20\ DHS
will collect an additional $94,594,530 annually in transfer payments
from premium processing requestors filing Form I-129 for all other visa
classifications to DHS, based on a 5-year annual average.\21\
Accordingly, DHS estimates the total increase in transfer payments from
the Form I-129 fee-paying population to DHS will be $96,609,550 (Table
7) annually, for the biennial period after this rule takes effect.
---------------------------------------------------------------------------
\20\ Calculation: 10,892 annual Form I-129 H-2B or R-1 petitions
* $185 ($1,685 fee-$1,500 fee) = $2,015,020.
\21\ Calculation: 310,146 annual Form I-129 petitions for other
than H-2B and R-1 classifications * 305 ($2,805 fee-$2,500 fee) =
$94,594,530.
[[Page 89546]]
Table 7--Fees for Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a
Nonimmigrant Worker
----------------------------------------------------------------------------------------------------------------
5-Year annual
average receipts (FY Total annual
Period of analysis 2018 through FY Fee fee revenue
2022)
----------------------------------------------------------------------------------------------------------------
Post-USCIS Stabilization Act (Baseline Costs)................. 10,892 $1,500 $16,338,000
2023 CPI-U Adjustment......................................... 10,892 1,685 18,353,020
-------------------------------------------------
Change in Transfer Payments for Form I-129 H-2B and R-1... .................... .......... 2,015,020
Post-USCIS Stabilization Act (Baseline Costs)................. 310,146 2,500 775,365,000
2023 CPI-U Adjustment......................................... 310,146 2,805 869,959,530
-------------------------------------------------
Change in Transfer Payments for Form I-129 All Other *.... .................... .......... 94,594,530
-------------------------------------------------
Total Change in Transfer Payments for Form I-129...... .................... .......... 96,609,550
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: All other includes the following classifications (E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-
2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2).
(b) Form I-140, Immigrant Petition for Alien Worker, Transfer Payments
The estimated population of petitioners who submitted Form I-907,
Request for Premium Processing Service, with Form I-140, Immigrant
Petition for Alien Workers, based on the corresponding employment-based
(EB) classifications that are currently designated for premium
processing is 85,399 (Table 2) per year.\22\ The fee for all Form I-140
petitioners requesting premium processing will increase from $2,500 to
$2,805, based off the 12.3 percent increase in the CPI-U from June 2021
to June 2023.\23\ Using the historical 5-year annual average from FY
2018 through FY 2022, DHS estimates that as a result of the increase in
filing fees for premium processing the additional annual transfer
payments from the Form I-140 fee-paying population to DHS will be
$26,046,695 (Table 8) for the biennial period after this rule takes
effect.
---------------------------------------------------------------------------
\22\ See supra FN 16.
\23\ See supra FN 19.
Table 8--Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140, Immigrant
Petition for Alien Workers *
----------------------------------------------------------------------------------------------------------------
5-Year annual
average receipts (FY Total annual
Period of analysis 2018 through FY Fee fee revenue
2022)
----------------------------------------------------------------------------------------------------------------
Post-USCIS Stabilization Act (Baseline Costs)................. 85,399 $2,500 $213,497,500
2023 CPI-U Adjustment......................................... 85,399 2,805 239,544,195
-------------------------------------------------
Total Change in Transfer Payments for Form I-140.......... .................... .......... $26,046,695
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3.
As of January 30, 2023, Form I-140 petitions under an E13
multinational executive and manager classification and petitions under
an E21 national interest waiver (NIW) classification are eligible to
request premium processing.\24\ Table 9 shows the estimated E13
multinational executive and manager classification and E21 (NIW)
classification populations that are now eligible for premium
processing. Based on a 5-year annual average, DHS estimates the annual
average receipts of Form I-140, E13 to be 11,752 and Form I-140, E21 to
be 59,827 for a total of 71,579.
---------------------------------------------------------------------------
\24\ See supra FN 16.
Table 9--Form I-140, Immigrant Petition for Alien Workers, E13 and E21 Classifications, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
FY E13 E21 (NIW) Total
----------------------------------------------------------------------------------------------------------------
2018.......................................... 13,596 61,650 75,246
2019.......................................... 12,489 65,718 78,207
2020.......................................... 11,220 53,288 64,508
2021.......................................... 10,279 55,991 66,270
2022.......................................... 11,178 62,487 73,665
-----------------------------------------------------------------
Total..................................... 58,762 299,134 357,896
-----------------------------------------------------------------
5-year Annual Average................. 11,752 59,827 71,579
----------------------------------------------------------------------------------------------------------------
Sources: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
[[Page 89547]]
Since E13 and E21 (NIW) Form I-140 applicants have only been
recently eligible to request premium processing, DHS has no historical
data to determine how many of the newly eligible population will take
advantage of premium processing. Therefore, DHS uses the 57 percent
average of Forms I-129 and Forms I-140 developed in Table 5, that
request premium processing for this newly eligible population as a
proxy. DHS is using the same methodology to estimate the transfers from
the USCIS Stabilization Rule, because there is insufficient current
data available for this population.\25\
---------------------------------------------------------------------------
\25\ See 87 FR 18227.
---------------------------------------------------------------------------
Table 10 shows the total population by percentage for E13 and E21
(NIW) petitioners who may choose to file Form I-140. The estimated
population of petitioners who are projected to submit Form I-907,
Request for Premium Processing Service, with Form I-140, Immigrant
Petition for Alien Workers, based on the corresponding E13 and E21
(NIW) classifications that were recently designated for premium
processing is 40,800 (Table 10) per year.
Table 10--Form I-140, Immigrant Petition for Alien Worker, Estimated Annual Average Petitions Filed for Premium
Processing, by Classification, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Percent E13 E21 (NIW) Total
----------------------------------------------------------------------------------------------------------------
Estimate of Eligible Form I-140 Petitions \A\ 6,699 \B\ 34,101 40,800
(57%).....................................
----------------------------------------------------------------------------------------------------------------
\A\ Calculation: 6,699 = 11,752 (Table 9) x 0.57.
\B\ Calculation: 34,101 = 59,827 (Table 9) x 0.57.
Source: USCIS Analysis.
Using this historical 5-year annual average from FY 2018 through FY
2022, DHS estimates that as a result of the increase in filing fees for
premium processing the additional annual transfer payments from these
Form I-140 fee-paying populations to DHS will be $12,444,000 (Table
11), for the biennial period after this rule takes effect.
Table 11--Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140,
Immigrant Petition for Alien Workers *
----------------------------------------------------------------------------------------------------------------
5-Year Annual
average receipts (FY Total annual
Period of analysis 2018 through FY Fee fee revenue
2022)
----------------------------------------------------------------------------------------------------------------
Post-USCIS Stabilization Act (Baseline Costs)................. 40,800 $2,500 $102,000,000
2023 CPI-U Adjustment......................................... 40,800 2,805 114,444,000
-------------------------------------------------
Total Change in Transfer Payments for Form I-140.......... .................... .......... 12,444,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
* Note: Classifications: E13 and E21 (NIW).
Total estimated transfer payments for Form I-140, Immigrant
Petition for Alien Worker, is $38,490,695 ($26,046,695 + $12,444,000)
per year.
(c) Form I-539, Application To Extend/Change Nonimmigrant Status,
Transfer Payments
The USCIS Stabilization Act authorized USCIS to permit premium
processing for newly eligible Form I-539 filers. Per the statute, the
fee was originally set at $1,750. In June 2023, USCIS announced
eligibility for, F-1, F-2, J-1, J-2, M-1, and M-2 change of status
filers.\26\ This newly eligible population of filers are students and
exchange visitors. Because premium processing was allowed for these
classifications recently, DHS does not know how many currently eligible
Form I-539 applicants will choose to submit a premium processing
request. For purposes of this analysis, we present historical Form I-
539 filing rates and use projections of the premium processing demand
rates for Form I-129 and Form I-140 filers to estimate the change in
transfer payments as a result of the inflationary adjustment.
---------------------------------------------------------------------------
\26\ https://www.uscis.gov/newsroom/alerts/uscis-expands-premium-processing-for-applicants-seeking-to-change-into-f-m-or-j-nonimmigrant-status (last visited Aug 3, 2023).
---------------------------------------------------------------------------
Table 12 shows the 5-year annual average receipt volumes for the
classifications that are now eligible for premium processing for FY
2018 through FY 2022. DHS estimates the 5-year annual average of the
currently eligible F-1, F-2, J-1, J-2, M-1, M-2 classifications to be
19,550, and the 5-year annual average of the future eligible E-1, E-2,
E-3, L-2, H-4, O-3, P-4, R-2 classifications to be 124,842.
Table 12--USCIS Total of Form I-539, Application To Extend/Change Nonimmigrant Status, Receipts by
Classification, FY 2018 Through FY 2022
----------------------------------------------------------------------------------------------------------------
E-1, E-2, E-3, L-2, H-
FY F-1, F-2, J-1, J-2, M- 4, O-3, P-4, R-2 Total
1, M-2 Total
----------------------------------------------------------------------------------------------------------------
2018.......................................................... 19,464 124,228
2019.......................................................... 17,565 123,528
2020.......................................................... 20,005 141,986
[[Page 89548]]
2021.......................................................... 16,645 124,055
2022.......................................................... 24,072 110,414
-------------------------------------------------
Total..................................................... 97,751 624,211
-------------------------------------------------
5-year Annual Average................................. 19,550 124,842
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, July
18, 2023.
DHS calculated that 19,550 of the 144,392 newly eligible applicants
would be applying for F-1, F-2, J-1, J-2, M-1, M-2 classifications
(14%), and the remaining 124,842 would be applying for E-1, E-2, E-3,
L-2, H-4, O-3, P-4, R-2 classifications (86%). DHS uses the 57 percent
averages of those requesting premium processing for Forms I-129 and I-
140 for the newly eligible Form I-539 population as a proxy.
Of the 19,550 newly eligible applicants for F-1, F-2, J-1, J-2, M-
1, M-2 classifications per year, DHS estimates that 11,144 applicants
(57 percent of the eligible population, rounded) may submit a premium
processing request along with their Form I-539 application. Of the
124,842 newly eligible applicants for E-1, E-2, E-3, L-2, H-4, O-3, P-
4, R-2 classifications per year, DHS estimates that 71,160 applicants
(57 percent of the eligible population, rounded) may submit a premium
processing request along with their Form I-539 application as shown in
Table 13.
Table 13--Estimated Annual Average Premium Processing Requests for Form I-539, Application To Extend/Change
Nonimmigrant Status
----------------------------------------------------------------------------------------------------------------
Form I-539 5-year
annual average Pct.
Classification type receipts (FY 2018 requesting Total
through FY 2022) prem. proc.
----------------------------------------------------------------------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 classifications................... 19,550 57 11,144
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications......... 124,842 57 71,160
------------------------------------------------
Total...................................................... .................. ........... 82,304
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division, CLAIMS3 and ELIS database, July 18,
2023.
The fee for all Form I-539 petitioners requesting premium
processing will increase from $1,750 to $1,965, based off of the 12.3
percent increase in the CPI-U from June 2021 to June 2023.\27\ Using
the estimated premium processing requests developed in Table 13 above.
In Table 14, DHS estimates the increase in filing fees for premium
processing results in annual transfer payments from the Form I-539 fee-
paying population to DHS of $17,695,360, for the biennial period after
this rule takes effect.
---------------------------------------------------------------------------
\27\ See supra FN 19.
Table 14--Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-539,
Application To Extend/Change Nonimmigrant Status
----------------------------------------------------------------------------------------------------------------
5-Year annual
average receipts Total annual
Period of analysis (FY 2018 through Fee fee revenue
FY 2022)
----------------------------------------------------------------------------------------------------------------
F-1, F-2, J-1, J-2, M-1, M-2 classifications:
Post-USCIS Stabilization Act (Baseline Costs).............. 11,144 $1,750 $19,502,000
2023 CPI-U Adjustment...................................... 11,144 1,965 21,897,960
------------------------------------------------
Total Transfer Payments................................ .................. ........... 2,395,960
E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications:
Post-USCIS Stabilization Act (Baseline Costs).............. 71,160 1,750 124,530,000
2023 CPI-U Adjustment...................................... 71,160 1,965 139,829,400
------------------------------------------------
Total Transfer Payments................................ .................. ........... 15,299,400
------------------------------------------------
Total Change in Transfer Payments for Form I-539... .................. ........... 17,695,360
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
[[Page 89549]]
(d) Form I-765, Application for Employment Authorization, Transfer
Payments
The USCIS Stabilization Act authorized USCIS to permit premium
processing of the Form I-765, Application for Employment Authorization.
The USCIS Stabilization Act set the fee for the premium processing of
Form I-765 at $1,500.\28\ USCIS began premium processing for Forms I-
765 for students applying for Optional Practical Training (OPT) and
students seeking science, technology, engineering, and mathematics
(STEM) OPT extensions in March 2023.\29\
---------------------------------------------------------------------------
\28\ See USCIS Stabilization Act, Public Law 116-159 at sec.
4102(b)(1)(D)(Oct. 1, 2020). See also 8 CFR 106.4(c).
\29\ See https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt (last visited Aug. 3, 2023).
---------------------------------------------------------------------------
Table 15 shows the estimated OPT and STEM-OPT populations that are
now eligible as well as the estimated population of other I-765
categories the USCIS Stabilization Rule projected to become eligible
for premium processing in the near future. Based on a 5-year annual
average, DHS estimates the annual average receipts of Form I-765 from
the OPT and STEM-OPT populations to be 200,204 for the biennial period
after this rule takes effect. Additionally, DHS estimates the annual
average receipts to be 102,495 from additional categories of Form I-765
that are likely to become eligible for premium processing in the
future.\30\ This population is included in Table 15 because Form I-765
categories that become eligible in the near future may be impacted by
the inflationary adjustments discussed in this rule. The USCIS
Stabilization Rule's Regulatory Impact Analysis further projected
1,136,691 annual Form I-765 receipts belonging to classifications for
which USCIS will consider, but has no immediate plans to expand premium
processing eligibility as well as a final group of 802,145 belonging to
I-765 classifications USCIS is unlikely to ever make eligible for
premium processing.\31\ These projected groups are excluded from Table
15 and this Rule's analysis because they are unlikely to be impacted by
the decision to adjust premium processing fees for inflation over this
biennial cycle. These impacts would be more appropriately quantified in
a future inflation adjustment rule, when some reasonable expectation
exists that premium processing eligibility is likely in the future.
---------------------------------------------------------------------------
\30\ See Implementation of the Emergency Stopgap USCIS
Stabilization Act, 87 FR 18227 (Mar. 30, 2022) https://www.federalregister.gov/documents/2022/03/30/2022-06742/implementation-of-the-emergency-stopgap-uscis-stabilization-act#h-34.
\31\ The Implementation of the Emergency Stopgap USCIS
Stabilization Act Final Rule, published March 30, 2022 estimated the
number of newly eligible applicants beginning around FY 2025 based
on data from FY 2017 through FY 2021 actuals. This still serves as a
reasonable measure should this population become available for
premium processing in the near future. See 87 FR 18250.
Table 15--Form I-765, Application for Employment Authorization,
Classifications by Implementation, FY 2017 Through FY 2022
------------------------------------------------------------------------
Form I-765 OPT and Form I-765 receipts
FY STEM-OPT receipts likely eligible in
currently eligible the future
------------------------------------------------------------------------
2017........................ .................... 96,806
2018........................ 225,277 100,316
2019........................ 215,212 110,743
2020........................ 198,498 110,449
2021........................ 173,773 94,160
2022........................ 188,258 ....................
-------------------------------------------
Total................... 1,001,018 512,474
-------------------------------------------
5-year Annual 200,204 102,495
Average............
------------------------------------------------------------------------
Sources: USCIS, Office of Policy and Strategy, Policy Research Division,
CLAIMS3 and ELIS database, July 18, 2023; Implementation of the
Emergency Stopgap USCIS Stabilization Act, 87 FR 18227 (Mar. 30,
2022).
Since Form I-765 OPT and STEM-OPT applicants have only been
recently eligible to request premium processing, DHS has no historical
data to determine how many of the newly eligible population will take
advantage of premium processing. Therefore, DHS uses the 57 percent
average of Forms I-129 and I-140 developed in Table 5, that request
premium processing for this newly eligible population as a proxy for
all eligible Form I-765 categories. DHS used the same methodology to
estimate the transfers from the USCIS Stabilization Rule.
DHS estimates that 114,116 applicants (57 percent of the eligible
population) out of the 200,204 (Table 15) Form I-765 OPT and STEM-OPT
applicants who apply annually may submit a premium processing request
with their Form I-765 application.\32\ DHS also estimates that 58,422
applicants (57 percent of the eligible population) out of the 102,495
(Table 15) employment authorization document applicants who apply
annually may become eligible to submit a premium processing request
with their Form I-765 application in the near future.\33\
---------------------------------------------------------------------------
\32\ Calculation: 200,204 applicants * 57 percent = 114,116.
\33\ Calculation: 102,495 applicants * 57 percent = 58,422.
---------------------------------------------------------------------------
In Table 16, DHS uses the 114,116 and 58,422 population estimates
from OPT and OPT-STEM population as well as the likely future eligible
Form I-765 population to DHS to estimate transfer payments for each
category. The fee for all Form I-765 applicants requesting premium
processing will increase from $1,500 to $1,685, based off the 12.3
percent increase in the CPI-U from June 2021 to June 2023.\34\ DHS
estimates that annual transfer payments from currently eligible OPT and
OPT-STEM Form I-765 applicants requesting premium processing using Form
I-907 will be $21,111,460 to DHS for the biennial period after this
rule takes effect. DHS estimates that annual transfer payments from
likely future eligible will be $10,808,070 to DHS. Accordingly, DHS
estimates that total annual transfer payments from Form I-765
applicants requesting request premium processing using Form I-907 will
be $31,919,530 to DHS.
---------------------------------------------------------------------------
\34\ See supra FN 19.
[[Page 89550]]
Table 16--Fees for Form I-765, Application for Employment Authorization, Applicants Requesting Premium
Processing Using Form I-907, Request for Premium Processing Service
----------------------------------------------------------------------------------------------------------------
5-Year annual
average receipts Total annual fee
Period of analysis (FY 2018 through Fee revenue
FY 2022)
----------------------------------------------------------------------------------------------------------------
Form I-765 OPT and OPT-STEM Receipts Currently Eligible:
Post-USCIS Stabilization Act (Baseline Costs)........... 114,116 $1,500 $171,174,000
2023 CPI-U Adjustment....................................... 114,116 1,685 192,285,460
---------------------------------------------------
Total Transfer Payments............................. .................. ........... 21,111,460
----------------------------------------------------------------------------------------------------------------
Period of analysis 5-year annual Fee Total
average receipts
(FY 2017 through
FY 2021)
----------------------------------------------------------------------------------------------------------------
Form I-765 Receipts Likely Eligible in the Future:
Post-USCIS Stabilization Act (Baseline Costs)........... 58,422 $1,500 $87,633,000
2023 CPI-U Adjustment................................... 58,422 1,685 98,441,070
---------------------------------------------------
Total Transfer Payments............................. .................. ........... $10,808,070
---------------------------------------------------
Total Change in Transfer Payments for Form I-765 .................. ........... $31,919,530
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
Paperwork Reduction Act
Under the Paperwork Reduction Act 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. This rule does not impose
any reporting or recordkeeping requirements under the Paperwork
Reduction Act. USCIS will update the fee for filing USCIS Form I-907 as
appropriate.
List of Subjects in 8 CFR Part 106
Fees, Immigration.
For the reasons set out in the preamble, the Department of Homeland
Security amends 8 CFR part 106 as follows:
PART 106--USCIS FEE SCHEDULE
0
1. The authority citation for part 106 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b,1304, 1356; Pub.
L.107-296; 48 U.S.C 1806; Pub. L. 115-218; Pub. L. 116-159.
0
2. Section 106.4 is amended by revising paragraph (c) to read as
follows:
Sec. 106.4 Premium processing service.
* * * * *
(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--$2,805.
(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--$2,805.
(3) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(ii)(b) of the INA--$1,685.
(4) Petition for classification of a nonimmigrant described in
section 101(a)(15)(H)(iii) of the INA--$2,805.
(5) Petition for classification of a nonimmigrant described in
section 101(a)(15)(L) of the INA--$2,805.
(6) Petition for classification of a nonimmigrant described in
section 101(a)(15)(O)(i) or (ii) of the INA--$2,805.
(7) Petition for classification of a nonimmigrant described in
section 101(a)(15)(P)(i), (ii), or (iii) of the INA--$2,805.
(8) Petition for classification of a nonimmigrant described in
section 101(a)(15)(Q) of the INA--$2,805.
(9) Petition for classification of a nonimmigrant described in
section 101(a)(15)(R) of the INA--$1,685.
(10) Application for classification of a nonimmigrant described in
section 214(e) of the INA--$2,805.
(11) Petition for classification under section 203(b)(1)(A) of the
INA--$2,805.
(12) Petition for classification under section 203(b)(1)(B) of the
INA--$2,805.
(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--
$2,805.
(14) Petition for classification under section 203(b)(3)(A)(i) of
the INA--$2,805.
(15) Petition for classification under section 203(b)(3)(A)(ii) of
the INA--$2,805.
(16) Petition for classification under section 203(b)(3)(A)(iii) of
the INA--$2,805.
(17) Petition for classification under section 203(b)(1)(C) of the
INA--$2,805.
(18) Petition for classification under section 203(b)(2) of the INA
involving a waiver under section 203(b)(2)(B) of the INA--$2,805.
(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--$1,965.
(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--$1,965.
(21) Application for employment authorization--$1,685.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-28529 Filed 12-27-23; 8:45 am]
BILLING CODE 9111-97-P
