U.S. Citizenship and Immigration Services Fee Schedule

Federal RegisterOct 24, 2016

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, and 205

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

RIN 1615-AC09

U.S. Citizenship and Immigration Services Fee Schedule

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is adjusting the fee schedule for immigration and naturalization benefit requests processed by U.S. Citizenship and Immigration Services (USCIS). The fee schedule was last adjusted on November 23, 2010. USCIS conducted a comprehensive fee review for the fiscal year (FY) 2016/2017 biennial period and determined that current fees do not recover the full cost of services provided. DHS has determined that adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. DHS published a proposed fee schedule on May 4, 2016.

Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035 covering USCIS costs related to processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A; establish a three-level fee for the Application for Naturalization, Form N-400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

DATES:

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

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

III. Final Rule

A. Changes in the Final Rule

B. Corrections

C. Summary of Final Fees

IV. Public Comments on the Proposed Rule

A. General Comments

B. Relative Amount of Fees

1. Proposed Fees Are Too High

a. Barrier to Family Reunification

b. Impact on Low-Income Individuals; Low Volume Reallocation

2. Comments on Specific Fees and Adjustments

a. Application for Certificate of Citizenship, Forms N-600/600K

b. Adoption, Forms I-600/600A/800/800A

c. Petition for a Nonimmigrant Worker, Form I-129

d. Application To Register Permanent Residence or Adjust Status, Form I-485, and Interim Benefits

e. Application for Travel Document, Form I-131

f. Students

g. Application for Replacement Naturalization/Citizenship Certificate, Form N-565

h. Petition for Alien Relative, Form I-130

i. Application To Replace Permanent Resident Card, Form I-90

j. Genealogy, Forms G-1041/1041A

k. Petition To Remove Conditions on Residence, Form I-751

l. Petition for Alien Fiancé(e), Form I-129F

m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360

n. Notice of Appeal or Motion, Form I-290B

o. Application for Civil Surgeon Designation, Form I-910

p. Application for Advance Permission to Enter as a Nonimmigrant, Form I-192, and Application for Waiver of Passport and/or Visa, Form I-193

C. Fee Waivers and Exemptions

D. Naturalization

E. Improve Service and Reduce Inefficiencies

F. Premium Processing

G. Immigrant Investors

1. Application for Regional Center Under the Immigrant Investor Program, Form I-924

2. Immigrant Petition by Alien Entrepreneur, Form I-526

3. Petition by Entrepreneur To Remove Conditions on Permanent Resident Status, Form I-829

H. Methods Used To Determine Fee Amounts

1. Recovery of Full Cost Without Appropriations

2. Exclusion of Temporary or Uncertain Costs, Items, and Programs

3. Setting Fees by Benefit Type

4. Income-Based Fee Structure

5. Reduction in USCIS Costs

I. Dishonored Payments

J. Refunds

K. Visa Allocation

L. Credit Card Payments

V. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act—Final Regulatory Flexibility Analysis

1. A Statement of the Need for, and Objectives of, the Rule

2. A Statement of the Significant Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis, A Statement of the Assessment of the Agency of Such Issues, and A Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments

a. Comments on Form I-129

b. Comments on Forms I-360 and I-485

c. Comments on Forms G-1041 and G-1041A

d. Comments on Form I-924A

3. The Response of the Agency to Any Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration in Response to the Proposed Rule, and a Detailed Statement of Any Change Made to the Proposed Rule in the Final Rule as a Result of the Comments

4. A Description of and an Estimate of the Number of Small Entities to Which the Rule Will Apply or an Explanation of Why No Such Estimate is Available

a. Petition for a Nonimmigrant Worker, Form I-129

b. Immigrant Petition for an Alien Worker, Form I-140

c. Application for Civil Surgeon Designation, Form I-910

d. Regional Center Designation Under the Immigrant Investor Program, Form I-924 and I-924A

e. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360

5. A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary For Preparation of the Report or Record

6. A Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities was Rejected

B. Unfunded Mandates Reform Act

C. Small Business Regulatory Enforcement Fairness Act

D. Congressional Review Act

E. Executive Orders (E.O.) 12866 and 13563 (Regulatory Planning and Review)

1. Background and Purpose of the Final Rule

2. Amendments and Impacts of Regulatory Change

a. Dishonored Payments

b. Failure To Pay the Biometric Services Fees

c. Reduced Fee for Application for Naturalization

d. Refunds

F. Executive Order 13132 (Federalism)

G. Executive Order 12988 (Civil Justice Reform)

H. Family Assessment

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

1. Request for Reduced Fee, Form I-942

2. Annual Certification of Regional Center, Form I-924A

I. Executive Summary

The Department of Homeland Security (DHS) is adjusting the fee schedule for U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive fee review for the FY 2016/2017 biennial period, refined its cost accounting process, and determined that current fees do not recover the full costs of services provided. DHS has determined that adjusting USCIS' fee schedule is necessary to fully recover costs and maintain adequate service.

In this final rule, DHS will:

• Adjust fees by a weighted average increase of 21 percent to ensure that fees for each benefit type are adequate to cover USCIS' costs associated with processing applications and petitions, as well as providing similar benefits to asylum and refugee applicants

and certain other immigrants at no charge.

Although the President has announced an increase in the refugee admissions ceiling to 110,000, the final fee structure includes costs for only 100,000, which was the anticipated ceiling at the time that the fee review was conducted.

• Establish a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.

• Establish a three-level fee for Application for Naturalization, Form N-400. First, DHS will increase the standard fee for Form N-400 from $595 to $640. Second, DHS will continue to charge no fee to applicants who meet the requirements of sections 328 or 329 of the Immigration and Nationality Act of 1952 (INA) with respect to military service and applicants with approved fee waivers. Third, DHS will charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.

• Remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

• Clarify that persons filing any benefit request may be required to appear for biometrics services or an interview and may be required to pay the biometrics services fee.

II. Background

DHS published a notice of proposed rulemaking (NPRM) on May 4, 2016, which proposed adjusting USCIS' fee schedule by a weighted average increase of 21 percent.

See U.S. Citizenship and Immigration Services Fee Schedule; Proposed Rule,

81 FR 26904. This final rule establishes the first fee adjustment since 2010. It is a result of a comprehensive fee review conducted by USCIS for the FY 2016/2017 biennial period. During the fee review, USCIS determined that current fees do not recover the full costs of processing immigration benefits. This final rule reflects full cost recovery including program costs that DHS excluded in the 2010 final rule. USCIS provided the FY 2016/2017 Immigration Examinations Fee Account (IEFA) Fee Review Supporting Documentation (supporting documentation), which includes budget methodology, and regulatory flexibility analysis, in the public docket.

See http://www.regulations.gov,

docket number USCIS-2016-0001.

This final rule includes the addition of fee surcharges applied to certain immigration benefits to fully recover costs related to the USCIS Refugee, Asylum, and International Operations Directorate (RAIO), the Systematic Alien Verification for Entitlements (SAVE) program (to the extent not recovered from users),

and the Office of Citizenship.

In the 2010 final rule, USCIS assumed it would continue receiving funding for these programs through congressional appropriations.

See U.S. Citizenship and Immigration Services Fee Schedule,

75 FR 58962, 58966 (Sept. 24, 2010). The 2010 final rule removed asylum, refugee, and military naturalization costs from the fee structure and assumed that immigration fees would not be used to recover the costs of adjudicating asylum, refugee, and military naturalization requests, as well as costs associated with the SAVE program and the Office of Citizenship. The final rule removed all of these costs from the USCIS fee structure, instead assuming that these services would be funded using appropriated funds.

See

75 FR 58963. That budget request was not fulfilled, and USCIS was left to fund the cost of these programs after having removed the surcharge.

See

Pub. L. 112-10, sec. 1639 (Apr. 15, 2011).

The SAVE program was established in 1987 by the Immigration Reform and Control Act, Pub. L. 99-603, sec. 121(c) (Nov. 6, 1986), which required the Commissioner of the Immigration and Naturalization Service to “implement a system for the verification of immigration status . . . so that the system is available to all States by not later than October 1, 1987.” SAVE uses an internet-based service to assist Federal, state, and local benefit-issuing and licensing agencies, and other governmental entities, in determining the immigration status of benefit or license applicants, so that only those applicants entitled to benefits or licenses receive them.

The USCIS Office of Citizenship was established by section 451(f) of the Homeland Security Act of 2002. Pub. L. 107-296, sec. 451(f) (2002). The statute tasks the office with “promoting instruction and training on citizenship responsibilities for aliens interested in becoming naturalized citizens.”

USCIS received $29.95 million of the requested $248 million to fund a portion of the refugee and asylum processing administered under the RAIO Directorate and military naturalization processing in Fiscal Year 2011. USCIS has not received any substantial appropriations for these programs since FY 2011. USCIS received $2.5 million for the immigrant integration grants program in FY 2014 (Pub. L. 113-76) and FY 2013 (Pub. L. 113-6). USCIS did not receive appropriations for the immigrant integration grants program in FY 2015 or FY 2016. Similarly, USCIS received no FY 2016 discretionary appropriations for the SAVE program or for the Office of Citizenship.

See

DHS Appropriations Act 2016, Pub. L. 114-113, div. F. (Dec. 18, 2015).

DHS issues this final rule consistent with the Immigration and Nationality Act (INA) section 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants) and the Chief Financial Officers (CFO) Act of 1990, 31 U.S.C. 901-03 (requiring each agency's CFO to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency's fees). The NPRM provides additional information on the legal authority, non-statutory guidance, and background on the IEFA fees.

See

81 FR 26906.

III. Final Rule

A. Changes in the Final Rule

This section details the changes made in this final rule as compared to the NPRM. These changes are summarized as follows:

1. Application to Register Permanent Residence or Adjust Status, Form I-485. DHS has revised the regulatory language regarding the fee for the Application to Register Permanent Residence or Adjust Status, Form I-485, to clarify that the proposed $750 discounted fee is available for all applicants under 14 years old who submit their Form I-485 with that of a parent. These revisions accord the fee regulations with the current Form I-485 instructions and intake practices.

See

new 8 CFR 103.7(b)(1)(i)(U)(

); 81 FR 26919. The section later in this preamble entitled, “Adjustment of Status, Form I-485, and Interim Benefits,” provides more details about this change.

2. Dishonored payments. DHS has also clarified the regulations governing USCIS actions when a check used to pay the required fee is dishonored by the remitter's bank. Under this final rule, USCIS will submit all initially rejected payments to the applicant's bank a second time for it to clear or be rejected. 8 CFR 103.2(a)(7)(ii)(D). If the check is rejected again following re-submission by USCIS, it will reject the case for fee non-payment. If the case has been approved, USCIS will send a notice of intent to revoke the approval. The section later in this preamble entitled, “Dishonored Payments,” provides more details about this change.

3. Application for Advance Permission to Enter as a Nonimmigrant, Form I-192, and Application for Waiver for Passport and/or Visa, Form I-193. DHS has made adjustments to the proposed fees in the final rule for the Application for Advance Permission to Enter as a Nonimmigrant, Form I-192, and the Application for Waiver for Passport and/or Visa, Form I-193. For the reasons outlined in section IV.B.2.p. of this preamble, the fees that will be charged for Forms I-192 and I-193 will remain at $585, rather than the proposed fee of $930 when such forms are submitted to and processed by the U.S. Customs and Border Protection (CBP).

See

new 8 CFR 103.7(b)(1)(i)(P)-(Q).

B. Corrections

DHS inadvertently listed Application by Refugee for Waiver of Grounds of Excludability, Form I-602, in the NPRM preamble and the supporting documentation. DHS listed Form I-602 in the NPRM as part of Waiver Forms in section IV, Fee Review Methodology, at 81 FR 26916 and tables 8 and 9 at 81 FR 26926-26927. USCIS referenced it on pages 24, 47, 49, and 50 of the accompanying supporting documentation. The docket of this final rule includes a corrected version of the supporting documentation without references to Form I-602. Form I-602 has no fee and DHS should not have included it in these lists or tables. The NPRM did not assume any fee-paying workload for Form I-602; therefore, removing it from the fee schedule does not affect other fees. DHS continues to not charge a fee for Form I-602.

DHS also inadvertently did not include provisions for what would occur if a benefit request was approved before USCIS became aware that the fee payment was dishonored by the remitter institution.

See

proposed 8 CFR 103.2(a)(7)(ii), 103.7(a)(2); 81 FR 26936-26937. Specifically, DHS proposed to remove the requirement that USCIS provide notification to the requester whenever an instrument used to pay the filing fee is returned as not payable, with 14 days to cure the deficiency. However, DHS neglected to propose the necessary conforming change to 8 CFR 205.1(a)(2), which provides that the approval of a petition or self-petition made under INA section 204 is automatically revoked if the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable. The latter provision must be revised to conform it to the proposed change described previously. That oversight has been corrected in this final rule. New 8 CFR 103.7(a)(2)(iii), 205.1(a). This change is discussed in more detail in the response to the public comments regarding dishonored payments.

C. Summary of Final Fees

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

Table 1—Non-Statutory IEFA Immigration Benefit Request Fees

Form No.

Title

Current fee

Final fee

G-1041

Genealogy Index Search Request

$20

$65

G-1041A

Genealogy Records Request (Copy from Microfilm)

G-1041A

Genealogy Records Request (Copy from Textual Record)

I-90

Application to Replace Permanent Resident Card

365

455

I-102

Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

330

445

I-129/129CW

Petition for a Nonimmigrant Worker

325

460

I-129F

Petition for Alien Fiancé(e)

340

535

I-130

Petition for Alien Relative

420

535

I-131

/I-131A

Application for Travel Document

360

575

I-140

Immigrant Petition for Alien Worker

580

700

I-191

Application for Advance Permission to Return to Unrelinquished Domicile

585

930

I-192

Application for Advance Permission to Enter as Nonimmigrant

585

585/930

I-193

Application for Waiver of Passport and/or Visa

585

I-212

Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

585

930

I-290B

Notice of Appeal or Motion

630

675

I-360

Petition for Amerasian Widow(er) or Special Immigrant

405

435

I-485

Application to Register Permanent Residence or Adjust Status

985

1,140

I-485

Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years)

635

750

I-526

Immigrant Petition by Alien Entrepreneur

1,500

3,675

I-539

Application to Extend/Change Nonimmigrant Status

290

370

I-600/600A

Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition

720

775

I-800/800A

Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country

720

775

I-601

Application for Waiver of Ground of Excludability

585

930

I-601A

Application for Provisional Unlawful Presence Waiver

585

630

I-612

Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)

585

930

I-687

Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act

1,130

I-690

Application for Waiver of Grounds of Inadmissibility

200

715

I-694

Notice of Appeal of Decision

755

890

I-698

Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA)

1,020

1,670

I-751

Petition to Remove Conditions on Residence

505

595

I-765

Application for Employment Authorization

380

410

I-800A Supp. 3

Request for Action on Approved Form I-800A

360

385

I-817

Application for Family Unity Benefits

435

600

I-824

Application for Action on an Approved Application or Petition

405

465

I-829

Petition by Entrepreneur to Remove Conditions

3,750

I-910

Application for Civil Surgeon Designation

615

785

I-924

Application for Regional Center Designation Under the Immigrant Investor Program

6,230

17,795

I-924A

Annual Certification of Regional Center

3,035

I-929

Petition for Qualifying Family Member of a U-1 Nonimmigrant

215

230

N-300

Application to File Declaration of Intention

250

270

N-336

Request for Hearing on a Decision in Naturalization Proceedings

650

700

N-400

Application for Naturalization

595

640

N-470

Application to Preserve Residence for Naturalization Purposes

330

355

N-565

Application for Replacement Naturalization/Citizenship Document

345

555

N-600/N-600K

Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate under Section 322

600/550

1,170

USCIS Immigrant Fee

165

220

Biometric Services Fee

Form, when used in connection with a benefit or other request to be filed with DHS to request an immigration benefit, means a device for the collection of information in a standard format that may be submitted in a paper format or an electronic format as prescribed by USCIS on its official Internet Web site. The term “Form” followed by an immigration form number includes an approved electronic equivalent of such form as made available by USCIS on its official Internet Web site.

See

8 CFR 1.2 and 299.1. Therefore, the word “form” is used in this final rule in both the specific and general sense.

As described in the NPRM, the United States' obligations under the 1967 Protocol relating to the Status of Refugees (incorporating by reference Article 28 of the 1951 U.N. Convention relating to the Status of Refugees) guide the Application for Travel Document fees for a Refugee Travel Document. The USCIS ABC model does not calculate these fees.

See

8 CFR 103.7(b)(1)(i)(M)(2) and (3).

On August 31, OMB approved Form I-131A, Application for Travel Document (Carrier Documentation). The new form will be used by Lawful Permanent Residents (LPRs) who are temporarily overseas and have lost their Permanent Resident Card or Reentry Permit, to apply for a Travel Document.

See https://www.uscis.gov/i-131a

The fee for Form I-192 will remain $585 when filed with and processed by CBP.

DHS removed the word “Pilot” from the form title.

See

new 8 CFR 103.7(b)(1)(i)(WW).

The current fee for applications filed on behalf of a biological child is $600. The fee for an adopted child is $550. There is no fee for any application filed by a member or veteran of any branch of the U.S. Armed Forces.

DHS changed the fee name to “USCIS Immigrant Fee.”

See

new 8 CFR 103.7(b)(1)(i)(D).

IV. Public Comments on the Proposed Rule

DHS provided a 60-day comment period following publication of the NPRM; 436 comments were posted to

regulations.gov

. Although 475 comments were received on the docket, 38 were not posted and one was withdrawn. As noted in the proposed rule, DHS may withhold information provided in comments from public viewing if it determines that such information is offensive or may affect the privacy of an individual. 81 FR 26905.

A. General Comments

DHS received comments from a broad spectrum of individuals and organizations, including refugee and immigrant service and advocacy organizations, public policy groups, members of Congress, and private citizens. Some commenters wrote that they supported the fee changes while others were critical of them. Many commenters wrote that they were generally unsupportive of the weighted average increase; others commented on specific form types. Some commenters wrote about alternative methods to reduce costs and inefficiencies.

DHS also received several comments on subjects that are not related to the proposed fees and are outside the scope of the NPRM. With limited exception as explicitly stated below, DHS has not separately summarized or responded to these comments.

B. Relative Amount of Fees

Most commenters stated opposition to the fee increases. Some commenters suggested that fee increases would reduce the number of people seeking immigration benefits. Some commenters stated that the proposed fees did not reflect the actual adjudicative workload of particular benefit types. Several commenters stated that proposed fees were too low, but the clear majority stated that the fees were too high.

Although DHS summarizes and responds to these concerns in more detail below, it emphasizes that, as an initial matter and as articulated in the NPRM, DHS needs to increase USCIS fees by a weighted average increase of 21 percent to offset growing costs and continue to provide an adequate level of service, as provided by section 286(m) of the INA, 8 U.S.C. 1356(m), which authorizes USCIS to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge.” As reflected in this provision, some USCIS fees must exceed the cost of adjudicating the respective benefit types to cover those benefits provided without charge, such as refugee benefits, asylum benefits, and other fee-exempt, fee-waived or fee-reduced workloads. Furthermore, as explained in the NPRM,

“DHS may reasonably adjust fees based on value judgements and public policy reasons where a rational basis for the methodology is propounded in the rulemaking.”

See

81 FR 26907.

An example is the policy decision to include a fee exemption for individuals who are victims of a severe form of human trafficking and who assist law enforcement in the investigation or prosecution of those acts of trafficking (who may qualify for T visas), and individuals who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes (who may qualify for U visas). The cost of processing those fee-exempt visas must be recovered through fees charged for other benefit requests.

See

INA secs. 101(a)(15)(T), (U), 214(o), (p), 8 U.S.C. 1101(a)(15)(T), (U), and 1184(o), (p); 8 CFR 214.11, 214.14, 103.7(c)(5)(iii);

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status,

73 FR 75540 (Dec. 12, 2008). Such a decision would inevitably cause an unsustainable reduction in fee revenue unless DHS spread the cost of the fee exemption among other fee-paying applicants and petitioners. Accordingly, consistent with section 286(m) of the INA, 8 U.S.C. 1356(m), DHS sets fees for other fee-paying applicants and petitioners at a level sufficient to recover the full costs of providing all such services.

Similarly, a decision to allow fee waivers for a particular benefit request, or a decision to allow a reduced fee, will also have an impact on other fee-paying applicants and petitioners. For instance, when USCIS determines to hold a fee to a smaller percentage increase than the overall methodology suggests (in this rule, DHS uses an 8 percent weighted average increase for those benefits that it determines should be held to a smaller fee increase

), there are cascading effects on other fee-paying applicants and petitioners. These fee-reduced immigration benefit requests may not recover the full cost of their associated workloads or the full cost of their respective fee waivers. The portion of costs that is not recovered is reallocated to other immigration benefit requests.

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

See

81 FR 26915.

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

These fees also recover a greater portion of the cost of fee-exempt services.

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

1. Proposed Fees Are Too High

The largest number of commenters wrote in opposition to the overall increase in fees. Several commenters expressed concern over specific populations (such as families or potential adoptive families) that may be particularly affected by the fee increases. Some commenters believed that a steep increase in fees would result in increased illegal immigration, particularly for individuals who may not be able to afford increased costs associated with existing legal avenues. Some commenters suggested that the increase in fees could discourage certain individuals from attempting to work or ultimately seeking lawful permanent residence resident (LPR) status in the country.

As an initial matter, DHS notes that as stated in the NPRM, it attributes 17 percent of the 21 percent weighted average fee increase to the reinstatement of the surcharge needed to sustain current operating levels of RAIO, the SAVE program, and the Office of Citizenship, as well as to account for a projected loss in fee revenue resulting from a significant increase in the number of fee waivers currently received (and which is expected to continue throughout FY 2016/2017).

See

81 FR 26911. The remaining 4 percent is needed to recover the cost of sustaining current operating levels and to allow for limited, strategic investments necessary to ensure the agency's information technology infrastructure is strengthened. Such strengthening is needed to protect against potential cyber intrusions and to build the disaster recovery and back-up capabilities required to effectively deliver on the USCIS mission.

See

81 FR 26910. For comparison, the inflation from July 2010 to July 2016 was 9.5 percent.

The semiannual average consumer price index for all urban consumers (CPI-U) was 217.5 in July 2010 and 238.8 in July 2016. The change in the Index over 9 years was 21.3 or 9.5 percent.

See

U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI-U) Semiannual Average tables, available at

http://www.bls.gov/cpi/cpi_dr.htm

. DHS has not recently adjusted IEFA fees by CPI-U inflation, but provides this figure as a point of comparison.

DHS notes that fees do not merely cover the cost of adjudication time. The fees also cover the resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administrative requirements.

DHS also reiterates that any further fee adjustments would be zero-sum. Given the need to recover the full cost of the services provided, a decision reducing the fee burden on one population of beneficiaries will ultimately increase the burden on others.

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

a. Barrier to Family Reunification

A number of commenters stated that an increase in fees could potentially prevent family reunification for certain U.S. citizens and lawful permanent residents (LPRs), especially for individuals seeking to reunite with several family members. USCIS understands the importance of facilitating family reunification, as well as the advantages that LPR status and citizenship provide. DHS acknowledges that certain individuals may need to file multiple requests, and thus pay multiple fees, depending on the number of family members they seek to sponsor. Nonetheless, USCIS filing fees are necessary to provide the resources required to do the work associated with such filings. When fees do not fully recover costs, USCIS is unable to maintain sufficient capacity to process requests. Inadequate fees may cause significant delays in immigration request processing, which can result in the burden of longer separation from family members.

DHS recognizes that fees impose a burden on fee-paying applicants and beneficiaries, and it takes steps to mitigate that burden as appropriate. Specifically, after USCIS applies its standard fee-setting methodology to identify the Activity-Based Cost (ABC)

model output for each benefit

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

USCIS uses the ABC model to determine the full cost of processing immigration benefit requests and biometric services. This is the same methodology used in the last four fee reviews and the basis for the current fee structure. The ABC

model is a business management tool that assigns resource costs to operational activities and then to products and/or services. These assignments provide an accurate cost assessment of each major step towards producing the individual outputs of an organization. For additional information on the ABC model, see pages 17-22 of the supporting documentation.

b. Impact on Low-Income Individuals; Low Volume Reallocation

Several commenters stated that the proposed rule would harm the ability of low-income applicants and petitioners to afford USCIS services. Some of these commenters suggested that the proposed overall fee increase would result in a reduction in overall filings from low-income applicants and petitioners. Commenters discussed the importance of maintaining an immigration system that is accessible to people at all income levels.

DHS is aware of the potential impact of fee increases on low-income individuals and is sympathetic to these concerns. As a result, DHS not only offers fee waivers, but also uses its fee-setting discretion to adjust certain immigration benefit request fees that USCIS believes may be overly burdensome on applicants, petitioners, and requestors if set at the recommended model output levels. As discussed in the proposed rule and supporting documentation, and consistent with past practice, USCIS proposed to limit fee adjustments for certain benefit requests to a set percentage increase above current fees. USCIS determined this figure by calculating the average percentage fee increase across all model outputs before cost reallocation. In this rule, that calculated figure is 8 percent. This methodology is referred to as Low Volume Reallocation.

The use of Low Volume Reallocation frequently results in lower fees for certain low-income applicants and petitioners, but always results in higher fees for other benefit requests. This is because USCIS relies almost completely on fee revenue to support its operations. DHS is therefore mindful to use low volume reallocation only where compelling circumstances counsel in favor of shifting costs from one benefit request to others.

Nonetheless, as proposed, in this final rule, DHS will continue applying Low Volume Reallocation from the 2010 final rule to the following forms:

• Notice of Appeal or Motion, Form I-290B

• Petition for Amerasian, Widow(er) or Special Immigrant, Form I-360

• Petition to Classify Orphan as an Immediate Relative, Form I-600, and Application for Advance Processing of an Orphan Petition, Form I-600A

• Petition to Classify Convention Adoptee as an Immediate Relative, Form I-800, and Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A

• Petition for Qualifying Family Member of a U-1 Nonimmigrant Form I-929

• Application to File Declaration of Intention, Form N-300

• Request for Hearing on a Decision in Naturalization Proceedings, Form N-336

• Application to Preserve Residence for Naturalization Purposes, Form N-470

Also as proposed, DHS will apply the same calculated 8 percent weighted average increase to the following benefit types:

• Application for Provisional Unlawful Presence Waiver, Form I-601A

• Application for Employment Authorization, Form I-765

• Request for Action on Approved Form I-800A, Form I-800A Supplement 3

DHS believes that the use of Low Volume Reallocation will mitigate the potential burden of this final rule on certain low-income applicants and petitioners.

DHS intends to continue assessing the affordability of its fees in future fee reviews. This may result in continuing Low Volume Reallocation, otherwise reallocating certain costs, and identifying cost savings. For purposes of this final rule, however, DHS has not materially changed the proposed rule to address the commenters' stated concerns with the proposed overall fee increase.

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

2. Comments on Specific Fees and Adjustments

While many commenters indicated that they were opposed to the overall increase in fees, some comments focused on increases to particular forms or to specific groups of applicants, petitioners, or requestors. Those comments are addressed below.

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

a. Application for Certificate of Citizenship, Forms N-600/600K

In the NPRM, DHS proposed fee increases for the Application for Certificate of Citizenship, Form N-600, and the Application for Citizenship and Issuance of Certificate Under Section 322, Form N-600K. Under the proposed rule, the current $600 fee for applications filed on behalf of biological children would be increased by $570, or 95 percent, to $1,170. The proposed rule also would eliminate the current $50 discount on applications filed on behalf of adopted children, previously codified at 8 CFR 103.7(b)(1)(i)(AAA), thereby effectively increasing fees for such applications by $620, or 103 percent.

Id.

A number of commenters stated that DHS should reconsider the proposed fee increases. Some commenters requested additional information to explain the increases. Certain commenters who submitted comments through a form letter campaign stated that the proposed increases were troubling considering that USCIS had not reported a significant increase in application volume or processing times.

Some commenters stated that the proposed fee increase would result in a significant additional burden for potential adoptive families, who already invest a great deal of time and money in the adoption process. Some stated that Forms N-600 and N-600K should be free or discounted for adopted children, or alternatively maintained at the current fee. A commenter stated that the Department of State (DOS) processes derivative citizens' requests for passports in substantially the same manner that USCIS processes Forms N-600 and N-600K, yet DOS only charges $120 for a passport book for a child younger than 16 years of age. Other commenters stated that many adopted children automatically derive U.S. citizenship from their parents when they enter the United States, while other children derive U.S. citizenship when their adoptions are completed.

Several commenters noted that a passport may be an effective alternative to the certificate for naturalization.

See

U.S. Citizenship and Immigration Services, Before Your Child Immigrates to the United States (11/18/2014), available at

https://www.uscis.gov/adoption/your-child-immigrates-united-states.

As noted previously, USCIS based the proposed fee increase for the Forms N-600 and N-600K on the results of its comprehensive biennial fee review, a summary of which was available for comment in the docket accompanying the proposed rule. The biennial fee review helps ensure that fees for USCIS services cover the full cost of processing immigration benefits. In the absence of full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements.

DHS recognizes that fees impose a burden on fee-paying applicants and beneficiaries, and takes steps to mitigate that burden as appropriate. Specifically, after DHS applies the standard USCIS methodology to identify the model output for each benefit request, DHS evaluates the model output and determines whether it should be adjusted. In the NPRM, DHS proposed to limit a small number of fees to an 8 percent weighted average increase for one or more of the following three reasons: (1) DHS determined that the combined effect of cost, fee-paying volume, and methodology changes since the previous fee rule would otherwise place an inordinate fee burden on individuals requesting these types of benefits; (2) DHS determined that an adjustment was necessary to promote citizenship and immigrant integration or other policies; or (3) DHS lacked data on which to base an appropriate fee.

See

81 FR 26915. For example, DHS proposed to limit to the 8 percent weighted average increase to the Application for Naturalization and the adoption petition and application fees (explained in the sections of this preamble that discuss those requests).

DHS is mindful that departures from the standard USCIS fee methodology result in lower fees for some and higher fees for others. DHS is careful to use its fee setting discretion in a way that does not result in unnecessary or unjustifiable burdens for fee-paying applicants and petitioners. Accordingly, the proposed rule (like past fee rules) would have set most fees above cost, in adherence to the fee-setting methodology. The fee for Forms N-600 and N-600K is one of those fees.

Setting aside the effect of cost reallocation,

DHS attributes the proposed increase to the fee for Forms N-600 and N-600K to a significant increase in the number of fee waivers granted for such forms.

In the 2010 final rule, DHS assumed that every applicant would pay the fee for Forms N-600 and N-600K. However, the fee-paying volume estimate for Forms N-600 and N-600K decreased from 100 percent in FY 2010/2011 to 67 percent in FY 2016/2017 due to applicants receiving fee waivers. The standard fee-setting methodology provides that the costs of waived or exempted fees are to be recovered from fee-paying applicants submitting the same form(s) (in this case, applicants filing Forms N-600 and N-600K).

See

81 FR 26922. The previous fee for Form N-600 was set under the assumption that 100 percent of filers would pay the fee; as the NPRM explained, however, a third of Form N-600 filers are receiving fee waivers. These waivers account for a large portion of the costs that must now be addressed through the proposed fee increase. In short, the Form N-600 fee in the proposed rule is the result of consistent application of USCIS's fee-setting methodology. No adjustment was made to the fee calculated under the methodology based on other policy considerations.

At least one commenter indicated that the RAIO surcharge seemed to be a large contributor to the increase in the proposed fee for the Form N-600. The commenter suggested that the RAIO surcharge should be redistributed to all other forms to reduce the financial burden of the proposed fee increase on adoptive parents. As outlined in the NPRM, Forms N-600 and 600K are not the only forms that recover the cost of RAIO, the SAVE program, and the Office of Citizenship. USCIS currently distributes these costs to all form types not set below projected cost.

See

81 FR 26915.

See

Appendix Table 4 of the supporting documentation.

When DHS holds a fee below cost, the costs that are not covered, including fee waivers, must be paid by other fee paying applicants. Specifically, other immigration benefits whose fees are not held down recover the additional cost.

DHS is setting the fees for several other forms at a level that is less than their projected cost. If DHS similarly limited the fee for an Application for a Certificate of Citizenship, however, it would need to raise other fees to recover these expenses. USCIS estimates that each such instance would increase other fees between $5 and $210, with an average increase of $21.

With respect to comments about the potential impact of the proposed fee increase on adoptive families in particular, DHS notes that Forms N-600 and N-600K are not primarily used by adoptive families. USCIS estimates that adopted children represent less than 10 percent of the workload related to Applications for Certificate of Citizenship.

Although DHS could have established a separate fee for adopted children, the cost of such a departure from the standard fee-setting methodology would be borne by other fee-paying applicants and petitioners.

Similarly, if DHS set the fee for this benefit request at an equivalent level to the DOS passport fee, DHS would be required to substantially increase other fees to ensure full-cost recovery. DHS agrees with commenters that in many cases, a passport will serve the same purpose as a certificate of citizenship, and for a lower cost to the applicant. Finally, DHS notes that adjudicating a Form N-600 for an adopted child is similar in workload and difficulty to the adjudication of an Application for Certificate of Citizenship for a biological child. There would be no cost-related basis for establishing a separate fee for adopted children.

Based on FY 2015 actual revenue data, less than 10 percent of fee-paying applicants for Forms N-600 or N-600K paid the lower fee for adopted children.

DHS will continue its policy of reducing fee burdens on adoptive families in other ways. For instance, DHS will continue to allow fee waivers for the Form N-600. DHS will also continue to cover costs attributable to the adjudication of adoption petitions and applications (Forms I-600/600A/800/800A) through the fees collected from other requests. This policy is described in the following section on “Adoption.” Note that in the NPRM, the row for Forms I-600/600A/800/800A was labeled as “orphan petitions.” The term “orphan” only applies to Forms I-600 and Form I-600A. The row includes data for all of the adoption forms. Therefore, DHS changed the label for Forms I-600/600A/800/800A from “orphan petitions” to “adoption petitions and applications” in the final rule and in several tables within the supporting documentation. The changes only affect the labels for the rows and do not represent a change in the data or calculations.

For the reasons stated above, DHS has not revised the proposed fee in this final rule. Under this final rule, the fee for the Application for Certificate of Citizenship, Form N-600, and the Application for Citizenship and Issuance of Certificate Under Section 322, Form N-600K, will be $1,170.

b. Adoption, Forms I-600/600A/800/800A

In the NPRM, DHS proposed to increase the fee for the (1) Petition to Classify Orphan as an Immediate Relative, Form I-600; (2) Application for Advance Processing of an Orphan Petition, Form I-600A; (3) Petition to Classify Convention Adoptee as an Immediate Relative, Form I-800; and (4) Application for Determination of Suitability to Adopt a Child from a Convention Country, Form I-800A. The proposed increase would change the fee for each of these forms from $720 to $775.

See

proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ)(

), (KK); 81 FR 26939. DHS proposed to hold the increase for these benefit types (among others) to an 8 percent increase because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on individuals

requesting these types of benefits. For example, if DHS did not maintain the proposed fee for the Form I-600, this benefit request would have a fee of at least $2,258. DHS believes it would be contrary to the public interest to impose a fee of this amount on an estimated 15,000 potential adoptive parents each year.

Some commenters wrote in opposition to the proposed fee increases associated with intercountry adoptions or stated that DHS should reconsider these fee increases. Commenters wrote that all adoption-related fees should remain at the current level, be lowered, or be waived when adopting children from foster care. Some commenters stated that these fee increases would lead to decreased intercountry adoptions. At least one commenter wrote that adoptive parents were specifically targeted by the proposed fee increases in the NPRM.

DHS greatly values its role in intercountry adoptions and places high priority on the accurate and timely processing of immigration applications and petitions that enable U.S. families to provide permanent homes for adopted children from around the world. It also recognizes that the financial costs, both foreign and domestic, involved in intercountry adoptions can have significant impacts on these families. DHS has a history of modifying policies to ease burdens associated with international adoption. Prior to 2007, USCIS required prospective adoptive parents who had not found a suitable child for adoption within 18 months after approval of their Application for Advance Processing of Orphan Petition, Form I-600, to submit a fee with their request to extend their approval. Since 2007, USCIS has permitted adoptive parents to request one extension of their Form I-600 approval without charge, including the biometric fee.

See

72 FR 29864; 8 CFR 103.7(b)(1)(i)(Z). Finally, DHS does not charge an additional filing fee for an adoption petition filed on behalf of the first beneficiary child or birth siblings.

See

8 CFR 103.7(b)(1)(i)(Z) and 103.7(b)(1)(i)(JJ)(

DHS also has a history of setting adoption-related fees lower than the amount suggested by the fee-setting methodology. In the 2010 fee rule, the calculated fee for adoption petitions and applications (Forms I-600/I-600A and I-800/I-800A) was $1,455, based on projected costs.

See

75 FR 33461; previous 8 CFR 103.7(b)(1)(i)(Y), (Z), (II), (JJ). Instead of using the model output, DHS increased the fee by only $50, to $720.

See

75 FR 58972. As noted previously, in the FY 2016/2017 fee review, the model output for the Form I-600 was $2,258.

Nonetheless, DHS proposed setting fees for adoption petitions at $775.

See

proposed 8 CFR 103.7(b)(1)(i)(Y), (Z), (JJ), (

), (KK). The $1,483 difference between the model output and the final fee will be recovered from other applications, petitions, and requests. Shifting the adoption petition and application costs to other fees is consistent with past DHS efforts and is in the public interest to support parents of children adopted abroad.

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

DHS recognizes that fees impose a burden on individuals seeking immigration benefits, and it takes steps to mitigate that burden as appropriate. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality, including potential delays in processing. In this case, DHS proposed to apply the reduced (8 percent) fee increase to these benefit requests, for the reasons stated previously and consistent with DHS's practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that although this departure from the standard fee-setting methodology results in lower fees for adoptive families, it also results in higher fees for others. 81 FR 26915. Any further departure would only heighten the effect on the rest of the fee schedule, and would not be consistent with DHS's overall fee-setting methodology. DHS is therefore finalizing the fee as proposed.

c. Petition for a Nonimmigrant Worker, Form I-129

In the NPRM, DHS proposed to increase the fee for the Petition for a Nonimmigrant Worker, Form I-129, from $325 to $460.

See

proposed 8 CFR 103.7(b)(1)(i)(I); 81 FR 26937. The proposed fee increase was the result of the application of the standard USCIS fee-setting methodology to this benefit request.

Several commenters objected to the proposed fee increase. Most of the comments on this subject were from agricultural groups or farmers who expressed that the new fee would be too expensive for employers that employ H-2A temporary agricultural workers for seasonal labor. Other commenters objected to the impact that the proposed fee increase would have on performers in the arts. Commenters representing religious organizations also opposed the increase, stating that it would pose a burden to religious workers in small communities.

Others submitted comments about processing delays. Some commenters noted that delays in processing Forms I-129 affect the incomes of farmers and performers. Some commenters stated that DHS's proposal to increase the Form I-129 fee was undermined by USCIS' failure to process O and P visa requests within the 14 days allotted by statute for certain petitions.

See

INA sec. 214(c)(6)(D), 8 U.S.C.1184(c)(6)(D). Commenters stated that any fee increase should be accompanied by improvements in petition processing and policies, particularly as related to H-1B, L-1, O and P visas.

For additional information, see the section entitled, Improve Service and Reduce Inefficiencies.

As noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides for vulnerable populations on a fee-exempt, fee-reduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee-setting methodology as often as possible, and to avoid overuse of DHS's discretion to eliminate or reduce fees for special groups of beneficiaries.

The proposed fee for the Form I-129 resulted from application of the standard USCIS fee-setting methodology, because DHS did not find a compelling reason to shift the burden of the Form I-129 fee increase onto other applicants. Following consideration of the public comments, DHS retains the fee level expressed in the proposed rule. It is possible that in a limited number of cases a reduced fee would be more appropriate, but in the interest of fairness to all applicants and petitioners, as well as in the interest of the administration, this final rule sets a single fee for the Form I-129 at $460, as proposed.

The Regulatory Flexibility Act discussion in the Statutory and Regulatory Requirements section addresses comments regarding the effect of the rule on small entities. As for processing delays, DHS has further addressed the operational and efficiency

comments in the section of this preamble entitled, “Improve Service and Reduce Inefficiencies.”

d. Application To Register Permanent Residence or Adjust Status, Form I-485, and Interim Benefits

In the NPRM, DHS proposed to continue offering travel document and employment authorization renewals free of charge during the pendency of an Application to Register Permanent Residence or Adjust Status, Form I-485, so long as the applicant filed the application with the appropriate fee on or after July 30, 2007.

See

8 CFR 103.7(b)(1)(i)(M) (HH); proposed 8 CFR 103.7(b)(1)(i)(M), (II); 81 FR 26937. The associated forms are the Application for Travel Document, Form I-131, and Application for Employment Authorization, Form I-765. USCIS refers to travel document and employment authorization renewals as “interim benefits” when they are associated with a pending Form I-485.

See

81 FR 26918.

DHS received several comments from individuals who applied to adjust status before July 30, 2007, and who thus do not qualify for free interim benefits. These commenters stated that their Form I-485 applications have been pending since before July 30, 2007, and that because of the annual numerical visa limits established by Congress, they would likely need to request additional travel document and employment authorization renewals in the future.

Some commenters stated that it is unfair to charge applicants for interim benefits while they are waiting for visas to become available. Another commenter noted that USCIS has recently started requiring refugees and asylees to pay the required fee associated with the Application for Employment Authorization when concurrently filed with Form I-485. The commenter stated that USCIS had not previously required payment of a fee for such an application.

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

USCIS acknowledges that under current regulations and as proposed, employment-based Form I-485 applicants who filed before July 30, 2007, must continue to pay fees associated with interim benefits. Before the USCIS 2007 fee rule, DHS did not provide free interim benefits, and the Form I-485 fee was calculated without considering the potential costs of providing such benefits.

See

75 FR 58968, 58982.

The 2007 final rule increased the Form I-485 fee from $325 to $905, or 178 percent, mostly due to the decision to permit interim benefits without additional fees. 72 FR 29861. Because applicants for adjustment of status who filed before July 30, 2007, paid the lesser amount of $325 when they filed their Form I-485, and because a decision to provide free interim benefits to this population would shift additional costs to other fee-paying applicants and petitioners, DHS has decided to not provide free interim benefits for those pending applicants.

As explained in the 2007 proposed rule, the decision to provide free interim benefits is intended to restructure certain fee arrangements that some perceived as providing disincentives for USCIS to improve efficiency in processing.

See

72 FR 4894. By bundling the Form I-485 and interim benefit costs, USCIS ensured that an applicant for adjustment of status will pay a single fee and will not pay separate fees for interim benefits, no matter how long the case remains pending. As a result, if USCIS is unable to process the base application within the established processing goals, an applicant who needs to travel or extend his or her employment authorization is not financially disadvantaged by the delay.

USCIS has taken other actions to alleviate the filing burden and fees on those individuals whose applications are still pending due to the lack of available visas. For example, DHS now provides Employment Authorization Documents (EADs) with 2-year validity periods, instead of previously issued 1-year periods, which effectively reduces the fee per year.

In addition, USCIS adopted a policy in December 2010 under which an applicant with a pending Form I-485 that was filed before August 18, 2007, may receive a combination advance parole document and EAD with a 2-year validity period.

See

Policy Memorandum,

Issuance of Advance Parole Employment Authorization Document

(Dec. 21, 2010).

These longer approval periods have alleviated some of the burden described by the commenters.

USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an individual's authorization to work in the United States. 8 CFR 274a.12(b).

See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.

With regard to the comment that USCIS is requiring refugees and asylees to pay for Form I-765 when filing it concurrently with Form I-485, current regulations provide that Form I-765 has no fee if filed in conjunction with a pending or concurrently filed Form I-485 that was filed with a fee on or after July 30, 2007.

See

8 CFR 103.7(b)(1)(i)(M)(

). There is no fee for a refugee who is filing Form I-485.

See

8 CFR 103.7(b)(1)(i)(U)(

). Therefore, although USCIS has waived the Form I-765 fee for the first such application filed by a refugee, a Form I-765 filed by a refugee to renew his or her EAD requires a fee.

To renew interim benefits, a refugee who is filing a Form I-765 with Form I-485 must pay the Form I-765 fee or submit a Request for Fee Waiver, Form I-912. Similarly, if the refugee's employment authorization document expires before the Form I-485 is approved, he or she must file Form I-765 with a fee or request another fee waiver. Contrary to the commenter's statement, there has been no change in practice on this point.

See

Instructions for I-765, Application for Employment Authorization, available at

https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf.

Like almost all other applicants for adjustment of status, asylees are generally required to pay a fee for Form I-485; if they pay this fee, they receive free interim benefits as long as their Form I-485 is pending with USCIS. Asylees may request that both their Form I-485 and Form I-765 fees be waived.

See

8 CFR 103.7(c)(3)(viii) & (c)(4)(iii).

However, if USCIS waives the fee for the initial Form I-485, subsequent Form I-765 filings (for instance, to renew or replace a lost or expired EAD) require a fee or a new fee waiver request.

Because fee waivers are available, because refugees and asylees are usually not subject to lengthy waiting periods associated with visa availability, and because of the importance of ensuring full-cost recovery, DHS did not find a compelling reason to shift fee burdens onto other fee-paying applicants and petitioners. Accordingly, DHS has not revised this policy in this final rule.

Both fee waivers may be requested on one Request for Fee Waiver. See Instructions for Request for Fee Waiver at

https://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf.

An asylee in this situation, like all individuals seeking to file a Form I-765, may still apply for a fee waiver.

See

8 CFR 103.7(c)(3)(viii).

Finally, DHS also proposed to increase the separate Form I-485 fee that applies to a child under the age of 14 years who files a Form I-485 concurrently with the application of a parent seeking classification as an immediate relative of a U.S. citizen, a family-sponsored preference immigrant, or a family member accompanying or following to join a spouse or parent. DHS proposed a fee increase from $635 to $750, but did not propose any substantive changes to eligibility for the reduced fee.

See

81 FR 26919.

USCIS received at least one comment requesting that the proposed $750 discounted fee apply to all children under the age of 14 at any time, regardless of whether their Form I-485

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

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

DHS proposed that the discounted Form I-485 fee would only be available when the Form I-485 is filed concurrently with the application of a parent seeking classification as an immediate relative of a U.S. citizen, a family-sponsored preference immigrant, or a family member accompanying or following to join a spouse or parent.

See

proposed 8 CFR 103.7(b)(1)(i)(U)(

); 81 FR 26938. DHS has considered the commenter's suggestion, but is unable to adopt it. USCIS does not track the completion rates (

i.e.,

adjudication times) for Form I-485 based on the age of the applicant, so the agency does not have data showing a difference in the completion rate correlated to the difference in applicant age. In addition, USCIS does not know the volume of individual Form I-485 filings by children on which to base a separate fee. To set that fee as suggested by the commenter would require deviation from the fee-setting methodology and, as stated previously in this preamble, require the costs for those applications to be shifted to other benefit requests. Therefore, DHS is not expanding the child discount to all children in this final rule.

Nevertheless, while the current and proposed provisions limited the reduced fee only to children who are derivative applicants filing the Form I-485 at the same time as their parent, USCIS has in practice extended the reduced fee provision to all immigrant relative children under the age of 14 who file the Form I-485 at the same time as their parent (

i.e.,

mailed in the same envelope), regardless of whether they are filing as a derivative or a principal applicant. Therefore, to make the regulation text consistent with the form instructions and USCIS practice, this final rule sets the fee for Form I-485 accordingly.

See

new 8 CFR 103.7(b)(1)(i)(U)(

e. Application for Travel Document, Form I-131

In the NPRM, DHS proposed to increase the fee for the Application for Travel Document, Form I-131, from $360 to $575.

See

proposed 8 CFR 103.7(b)(1)(i)(M); 81 FR 23937. The proposed fee increase was the result of application of the standard fee-setting methodology to this benefit request.

Some commenters objected to the proposed increase. Some commenters noted that the forecasted fee-paying volume for Form I-131 has not changed significantly from the 2010 fee rule.

Additionally, they pointed out that the Form I-131 has one of the shortest completion rates,

indicating that it is not a relatively complex adjudication.

Some of these commenters wrote that they have a pending Form I-485 that was filed before July 30, 2007, and that they are thus ineligible for free interim benefits, including being permitted to file Form I-131 without a fee while waiting for an immigrant visa to become available.

See

previous 8 CFR 103.2(b)(1)(i)(M)(

). Some commenters stated that they have paid the Form I-131 fee several times while waiting for a visa to become available and that applicants from countries with long visa wait times must renew their travel documents every year, sometimes for multiple family members.

See

75 FR 26923 for overall workload in table 4 and 75 FR 26924 for fee-paying workload in table 5.

USCIS completion rates are the average hours per adjudication of an immigration benefit request. Adjudication hours are divided by the number of completions for the same time period to determine an average completion rate. For additional information on completion rates, see Appendix IX—Completion Rates on page 57 of the supporting documentation.

See Appendix Table 7: Completion Rates (Projected Adjudication Hours/Completions)

on page 58 of the supporting documentation.

Some commenters stated DHS should use a validity period of 2 years instead of 1 year when extensions of Form I-131 are approved for this population. As noted earlier in this preamble, however, USCIS may grant an applicant who has a pending Form I-485 and interim benefits, such as advance parole, an employment authorization combination document with a 2-year validity period if the immigrant visa is not currently available.

Adjudicator's Field Manual

ch. 55.3, par. (a)(2). These longer approval periods have alleviated some of the burden on applicants with long-pending I-485 applications.

As noted previously, the proposed fee increase for the Form I-131 was the result of application of the standard USCIS fee-setting methodology to this benefit request. When DHS departs from the standard USCIS fee-setting methodology to reduce fees for one group, fees for other groups (including, in this case, the fee for Form I-131) must be increased to recover full cost.

With respect to the Form I-131 in particular, the proposed fee increase was also due in part to USCIS improving its ability to fully account for the costs of this benefit request. The FY 2016/2017 fee review included more complete data on the Application for Travel Document workload than was included in the 2010 final rule. As noted in the supporting documentation, the latest fee review considered the completion rates for work performed by International Operations,

which adjudicates some Applications for Travel Documents, in the overall completion rates for Applications for Travel Documents. This information was not available for the FY 2010/2011 fee review, but it was included in this review to more accurately represent the cost of adjudicating an Application for Travel Document overseas. The proposed fee increase was due in part to USCIS including costs and time from International Operations in the model output for the Applications for Travel Documents fee. Ultimately, the proposed fee for Form I-131 represents its proportion of USCIS operating costs, as dictated by the standard USCIS fee-setting methodology. If DHS held the fee for Form I-131 below the amount suggested by the FY 2016/2017 fee-setting methodology, then the additional costs would be transferred to other immigration benefit fees.

See

International Operations Cost Allocation on page 26 of the supporting documentation.

Because DHS did not find a compelling reason to transfer a portion of the Form I-131 fee increase to other applicants, DHS retains the fee proposed in the NPRM. DHS recognizes that this decision will affect different applicants differently; some applicants may file this application just once, while others may file it multiple times. But in the interest of fairness to all applicants and petitioners, as well as in the interest of sound and efficient adjudications, DHS has decided to not create additional levels of fees for the Form I-131. This final rule sets a fee of $575 for the Form I-131, with appropriate exceptions for refugee travel documents, as discussed below. Nevertheless, Form I-131 requests for parole filed on behalf of individuals outside the United States, including humanitarian parole, remain eligible for a fee waiver. 8 CFR 103.7(c)(3)(iv).

Finally, at least one commenter questioned why DHS did not propose a new fee for refugee travel documents. As noted in the NPRM, fees for a refugee travel document are set at a level that is consistent with U.S. obligations under Article 28 of the 1951 Convention relating to the Status of Refugees, as incorporated by reference in the 1967 Convention relating to the Status of Refugees.

See

81 FR 26917. The fee must remain set at an amount that is consistent with U.S. obligations under Article 28. Therefore, fees for refugee travel documents will remain the same as DOS passport book fees.

The Refugee Travel Document fees are the same as the sum of the U.S. passport book application fee

plus the additional execution fee that the Department of State charges for first-time applicants.

f. Application for Employment Authorization, Form I-765, and Students

In the NPRM, DHS proposed to increase the fee for the Application for Employment Authorization, Form I-765, from $380 to $410.

See

proposed 8 CFR 103.7(b)(1)(i)(II); 81 FR 26938. DHS proposed to limit the increase for these benefit types (among others) to 8 percent for humanitarian and practical reasons. Many individuals seeking immigration benefits face financial obstacles and cannot earn money through lawful employment in the United States until they receive an Employment Authorization Document (EAD). 81 FR 26916.

At least one commenter objected to the potential effect of the proposed Form I-765 fee increase on foreign students seeking work authorization under the Optional Practical Training (OPT) program. The OPT program allows an F-1 nonimmigrant student to file a Form I-765 to request authorization to work in the United States in a position that is directly related to the F-1 student's major area of study.

See

8 CFR 214.2(f)(10)(ii)(C). OPT provides F-1 students with an opportunity to apply knowledge gained in the classroom to practical work experience off campus.

DHS places a high value on its role in attracting international students and scholars to the United States. Among other things, the contributions to U.S. educational institutions provided by a diverse international student body are invaluable. In recognition of these goals, USCIS devotes many resources to delivering immigration benefits to deserving students, including expending substantial resources, which DHS must recover, to adjudicate their eligibility for EADs. In addition, DHS limited the proposed EAD fee increase in a manner consistent with a number of other fees.

See

81 FR 26916. Moreover, F-1 students may request fee waivers in cases in which they are unable to afford the fee. In other cases, USCIS will continue to charge the full fee based on the effort and resources expended to process this benefit. This final rule therefore sets the fee at $410, as proposed.

See

new 8 CFR 103.7(b)(1)(i)(II).

g. Application for Replacement Naturalization/Citizenship Certificate, Form N-565

In the NPRM, DHS proposed to increase the fee for the Application for Replacement Naturalization/Citizenship Certificate, Form N-565, from $345 to $555, or 61 percent. The proposed fee increase was the result of application of the standard fee-setting methodology to this benefit request.

Commenters mentioned that some people could lose proof of citizenship or naturalization due to unforeseen circumstances, such as natural disasters or theft, and that a steep increase might make it more difficult for certain individuals to obtain replacement documents. Other commenters noted that citizens may need a certificate of naturalization or citizenship due to a name change. Commenters stated that the more prohibitively expensive it becomes for foreign-born U.S. citizens to replace documentation of their citizenship, the more difficult it will be for them to work, vote, or pursue other opportunities.

Commenters noted that the completion rate for Form N-565 increased significantly since the 2010 final rule. Some commenters compared the completion rate for Form N-565 to that of the Application to Replace Permanent Resident Card, Form I-90, and stated that the two adjudications should be similar. Those commenters noted that the completion rate for Form I-90 decreased since the 2010 final rule, while the Form N-565 completion rate increased by 64 percent. Some commenters stated that USCIS should further assess why the completion rate for Form N-565 increased to this degree.

DHS acknowledges that the Form N-565 adjudication time has increased over the years, and attributes this increase to the amount of research and review necessary to adjudicate these filings. Form N-565 adjudications require USCIS to fully review A-Files for security check purposes, including discovering name variations or aliases. To verify the naturalization of an applicant, USCIS officers must research all available systems. Yet many filings involve individuals who were naturalized decades ago and whose information is not contained in electronic systems, thus requiring extensive paper-based review. USCIS officers may also have to communicate with the National Archives and Records Administration or the Federal courts to obtain evidence supporting naturalization. In some cases, paper files must be transferred to a field office to conduct an interview of the applicant. Changes in name, marital status, gender, or other facts require evidentiary review to support requested changes in USCIS records. No filing fee is required in cases where the Form N-565 is filed to request correction of a certificate that contains an error, but even such filings require that USCIS fully review the relevant A-Files. DHS further notes that the processing of Form N-565 often requires the same use of time and resources by USCIS regardless of the basis for the request.

Moreover, the fee for Form I-90 differs from the fee for Form N-565 because the adjudication of the two forms differs. LPRs typically apply for new permanent resident cards every 10 years. Their information is thus generally up-to-date and readily available in an electronic system, thus eliminating the need for full A-File reviews when adjudicating Forms I-90. In addition, Form I-90 adjudication is streamlined and partially automated because the application exists in an electronic environment. Filings that involve information that is up-to-date and available in an electronic system generally require less processing time than filings that require review of physical records or multiple systems, or that require the entry of new data.

As noted, the proposed fee for Form N-565 resulted from application of the standard USCIS fee-setting methodology. Because DHS did not find a compelling reason to shift the burden of the Form N-565 fee increase onto other applicants, DHS retains the position expressed in the proposed rule. This final rule sets the fee for Form N-565 at $555, as proposed. Applicants who cannot pay the fee may request a fee waiver. 8 CFR 103.7(c)(3)(xv).

h. Petition for Alien Relative, Form I-130

In the NPRM, DHS proposed to increase the fee for the Petition for Alien Relative, Form I-130, from $420 to $535.

See

proposed 8 CFR 103.7(b)(1)(i)(L); 81 FR 26937. The proposed fee increase was the result of application of the standard USCIS fee-setting methodology to this benefit request.

Several commenters stated that they generally opposed the proposed increase in the Form I-130 fee because the increase, along with other proposed increases, would result in a significant financial burden for certain individuals, especially for low-income immigrants and their families. Some commenters asserted that the proposed increase of $115 would be disproportionate to the current adjudication time of 45 minutes. Another commenter suggested that fees be higher for businesses in order to offset the cost for family-based applicants. The same commenter referenced existing additional fees for H-1B visas and asserted that DHS should increase fees for O and P visas

to offset the cost of, and reduce the fees for, family-based immigration benefit requests. One commenter noted that Form I-130 filings are not eligible for fee waivers.

DHS appreciates the concerns of commenters, but reiterates that because USCIS is funded almost exclusively by fees, it sets the USCIS fee schedule based on a full cost recovery model. This means that although there is a relationship between the proposed fee and the projected adjudication time of 45 minutes, DHS cannot set fees at a level that would only recover costs for an individual adjudicator's time. In order for USCIS to continue to fulfill its mission, DHS must set fees at a level that accounts for the total resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administration. Moreover, because DHS provides some immigration adjudication and naturalization services (including for families) on a fee-exempt, fee-reduced, or fee-waived basis, fee-paying applicants and petitioners must at times pay more than their directly attributable share of costs.

In the case of the Form I-130, the primary reason for the proposed fee increase was the increase in USCIS' cost baseline for FY 2016/2017, and specifically the need to cover the costs of certain fee-exempt services. As noted in the NPRM and in this final rule, the FY 2016/2017 fee schedule adjusts fees to recover the costs related to RAIO, the SAVE program, and the Office of Citizenship.

See

81 FR 26910. In the FY 2010/2011 fee review, the model output for Form I-130 was approximately $368 before cost reallocation. Cost reallocation was smaller in the FY 2010/2011 fee review because USCIS assumed that appropriations would recover surcharges related to RAIO, the SAVE program, and the Office of Citizenship. In the FY 2016/2017 fee review, the model output for Form I-130, before cost reallocation, was approximately $383.

As mentioned in the NPRM, in the FY 2016/2017 fee review, USCIS included RAIO, the SAVE program, and the Office of Citizenship in the cost baseline. As shown in the supporting documentation, the fee includes $152 above the model output to ensure that IEFA fees recover full cost.

The $152 provides revenue for services that do not otherwise generate revenue (

e.g.,

refugee, asylum, and fee-waived workloads) and for forms that are held to the 8 percent weighted average increase based on policy decisions (

e.g.,

forms N-400 and I-600/600A/800/800A).

Projected cost refers to the model output column of Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation.

The amount here is the difference between the Model Output and the final fee. Amounts shown in Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation are rounded to the nearest dollar and all IEFA fees are rounded to the nearest $5 increment. The sum of the Model Output and the Cost Reallocation columns may not equal the proposed fee because of rounding.

DHS recognizes the burden that proposed fee increases impose on families and low-income individuals, and takes steps to mitigate that burden as appropriate. Specifically, after USCIS applies its standard fee-setting methodology to identify the model output for each benefit request, USCIS evaluates the model output and determines whether it should be adjusted. However, downward adjustments for some groups result in upward adjustments for other groups. There are many benefit requests that are used by families and low-income individuals, and it would be unsustainable and arguably unfair for USCIS to consistently shift the costs of all such requests to a completely unrelated subgroup of business immigration applicants and petitioners. With that context in mind, and following review of the public comments received, DHS has determined that the amount recommended under the fee-setting methodology was not inordinately high. Thus, DHS is adjusting the fee for Form I-130 in this final rule, as proposed. Moreover, as stated in the “Fee Waivers and Exemptions” section of this preamble, fee waivers are not provided for forms, such as Form I-130, that require petitioners to have the ability to support their intended beneficiary. DHS believes that this is sound overall policy, especially in light of the effects of fee waivers on the fees paid by other applicants and petitioners.

i. Application To Replace Permanent Resident Card, Form I-90

In the NPRM, DHS proposed to increase the fee for the Application to Replace Permanent Resident Card, Form I-90, from $365 to $455.

See

proposed 8 CFR 103.7(b)(1)(i)(G); 81 FR 26937. The proposed fee increase was the result of application of the standard USCIS fee-setting methodology to this benefit request.

A number of commenters objected to the proposed fee increase. Some commenters stated that the proposed fee was unjustified by the projected completion rate of 13 minutes. The commenters noted that although the proposed fee represents a significant increase, the projected completion rate had decreased slightly since the 2010 final rule. A commenter stated that the proposed increase would impose an unreasonable burden on many low-income applicants, especially when the reason for application may be out of their control, such as owning a prior edition of the card, expiration of the card between the individual's 14th and 16th birthday, a name change, or a change in commuter status.

Some commenters stated that USCIS guidance advises naturalization applicants to file Form I-90 if their permanent resident cards will expire within six months of the filing of their naturalization applications, and that USCIS sometimes requires naturalization applicants to file Form I-90 before completion of the Form N-400 adjudication. These commenters suggested that as a result, some applicants may file a Form I-90 and a Form N-400 in quick succession, and that DHS should reduce the combined fee burden for these two forms. The commenters suggested that DHS provide a discounted or partial fee for naturalization applicants who are required to file Form I-90.

As noted elsewhere in this preamble, because USCIS is funded almost exclusively by fees, DHS sets the USCIS fee schedule based on a full cost recovery model. This means that although there is a relationship between the proposed fee and the projected adjudication time of 13 minutes, DHS cannot set fees at a level that would only recover costs for an individual adjudicator's time. In order for USCIS to continue to fulfill its mission, DHS must set fees at a level that accounts for the total resources required for intake of immigration benefit requests, customer support, fraud detection, background checks, and administration. Moreover, because DHS provides some immigration adjudication and naturalization services on a fee-exempt, fee-reduced, or fee-waived basis, fee-paying applicants and petitioners must pay more than their directly attributable share of costs.

In the case of the Form I-90, the primary reason for the proposed fee increase is the increase in the USCIS cost baseline for FY 2016/2017, and specifically the need to cover the costs of certain fee-exempt services. As noted in the NPRM and this final rule, the FY 2016/2017 fee schedule recovers costs related to RAIO, the SAVE program, and the Office of Citizenship.

See

81 FR 26910. In the FY 2010/2011 fee review, the model output fee for Form I-90 was

approximately $321 before cost reallocation. Cost reallocation was smaller in the FY 2010/2011 fee review, because USCIS assumed appropriations that would recover the costs for RAIO, the SAVE program, and the Office of Citizenship. In the FY 2016/2017 fee review, the model output fee for Form I-90 was approximately $326, also before cost reallocation.

But, as mentioned in the NPRM, USCIS included the above mentioned programs in cost reallocation to recover the full cost of those programs. As shown in the supporting documentation, the fee is $129 above the model output fee to ensure that IEFA fees recover full cost.

The $129 provides revenue for services that do not otherwise generate revenue (

e.g.,

refugee, asylum, and fee-waived workloads) and for request types that are held to the 8 percent weighted average increase based on policy decisions (

e.g.,

Forms N-400 and I-600/600A/800/800A).

See

Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation.

Amounts shown in Appendix Table 4: Proposed Fees by Immigration Benefit Request in the supporting documentation are rounded to the nearest dollar and all IEFA fees are rounded to the nearest $5 increment. The sum of the Model Output and the Cost Reallocation columns may not equal the proposed fee because of rounding.

DHS recognizes that the proposed Form I-90 fee increase would impose an additional cost burden on filers. But the proposed fee increase results from application of the standard USCIS fee-setting methodology, and a downward adjustment favoring all Form I-90 filers, or a subgroup thereof, would result in upward adjustment of other fees. DHS has decided to impose this fee at the level dictated by the standard USCIS fee-setting methodology, as proposed. If applicants cannot afford to pay the increased Form I-90 fee, they may request a fee waiver. 8 CFR 103.7(c)(3)(ii).

With respect to the comments concerning naturalization applicants who are required to file a Form I-90 if their permanent resident card will expire within six months of filing the naturalization application, DHS notes that this is not a change in practice. LPRs are required to have valid, unexpired Permanent Resident Cards, Forms I-551, in their possession at all times,

see

INA sec. 264(e), 8 U.S.C. 1304(e), and DHS regulations require LPRs to file Form I-90 when those cards are set to expire in six months,

see

8 CFR 264.5(b)(2). For this reason, an LPR with fewer than six months remaining on his or her permanent resident card must generally file Form I-90, with fee, even if the LPR has applied for naturalization.

In other words, applying for naturalization does not eliminate the need to file Form I-90 when a permanent resident card is about to expire. If Form I-90 is properly filed, or if Form N-400 is filed at least six months before the expiration of the applicant's permanent resident card, the applicant can request an Alien Documentation Identification and Telecommunication (ADIT) stamp in lieu of filing for a new card.

For additional information, see

https://www.uscis.gov/i-90

and

https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.

DHS observes that a permanent resident card generally does not expire until 10 years after it is received by the LPR. For individuals who are familiar with the regulatory requirements,

this should be sufficient time for the applicant to take appropriate action, including renewing the card or naturalizing before the card expires.

Generally, LPRs become eligible to naturalize after 5 years of obtaining LPR status,

see, e.g.,

8 CFR 316.2(a)(3), and the average processing time for an application for naturalization is approximately 6 months. Therefore, individuals who receive LPR status have ample time during which they may save for fees, gather documents, and apply for naturalization before their permanent resident card expires. Moreover, creating a new process and discounted fee for those Form I-90 applicants who wish to naturalize would increase the administrative burden of administering both Form I-90 and Form N-400. For the reasons stated above, this final rule sets the Form I-90 fee at $455, as proposed, regardless of whether the applicant will also file Form N-400 in the near term.

USCIS also provides educational products and resources to welcome immigrants, promote English language learning, educate on rights and responsibilities of citizenship, and prepare immigrants for naturalization and civic participation. In addition, USCIS provides grants, materials and technical assistance to organizations that prepare immigrants for citizenship. The USCIS Citizenship Resource Center helps users better understand the citizenship process and gain the necessary skills required to be successful during the naturalization interview and test. See

https://www.uscis.gov/us-citizenship/naturalization-test/applicant-performance-naturalization-test/uscis-citizenship-education-resources-and-initiatives.

See https://www.uscis.gov/green-card/after-green-card-granted/renew-green-card.

j. Genealogy, Forms G-1041/1041A

In the NPRM, DHS proposed to increase fees for the Genealogy Index Search Request, Form G-1041, and Genealogy Records Request, Form G-1041A, from $20 or $35, depending on the format requested, to a single fee of $65.

See

proposed 8 CFR 103.7(b)(1)(i)(E)-(F); 81 FR 23967. As noted in the NPRM, DHS based the proposed fee increase on the ABC model output fee of $46 for genealogy services, as well as an additional $19 to recover the applicable administrative costs associated with funding these services, such as the USCIS Librarian and other genealogy research and information services. 81 FR 26919 (citing INA sec. 286(t)(1), 8 U.S.C. 1356(t)(1)).

Some commenters objected to the proposed fee increase. Some of these commenters compared the genealogy fees to state and local government fees for copies of vital records. Some commenters stated that the quality and efficiency of genealogy services were insufficient to justify the proposed fee increase.

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

See

81 FR 26917.

USCIS does not receive any appropriations for its genealogy program and thus depends on genealogy fees to cover costs, without increasing other immigration and naturalization fees to support this work. Genealogy fees have not been adjusted since USCIS created the program in 2008,

and such fees are currently insufficient to cover the full costs of the genealogy program. USCIS created the Genealogy Program to serve people performing genealogy research, including historical researchers, genealogists, and other members of the public, without diverting resources from the significant number of Freedom of Information Act requests to which USCIS must respond.

USCIS thus proposed to increase the fee to meet the full costs of the program and permit USCIS to respond to requests for such historical records and materials. Notwithstanding the fees charged by other government agencies, which likely face different operational and funding challenges, USCIS must ensure that it has sufficient funding to fulfill its mission. Following consideration of the comments on this subject, DHS has decided to set the final fee at $65, as proposed.

See

81 FR 26919; Final Rule, Establishment of a Genealogy Program, 73 FR 28026 (May 15, 2008).

Prior to the establishment of the Genealogy Program, genealogy researchers used the Freedom of Information Act process to conduct their research.

k. Petition To Remove Conditions on Residence, Form I-751

In the NPRM, DHS proposed to increase the fee for the Petition to Remove Conditions on Residence, Form I-751, from $505 to $595. Proposed 8 CFR 103.7(b)(1)(i)(HH); 81 FR 23968. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request.

Some commenters objected to the proposed fee increase. These commenters stated that Form I-751 is required for people who were granted conditional permanent residence through marriage, including spouses of U.S. citizens and their children, to remove the conditions on their status. The commenters asserted that the new fee is so burdensome that some applicants may miss their deadline to apply, putting those applicants at risk of losing their residency and becoming subject to removal from the United States. A commenter stated that in 2010, DHS increased the I-751 filing fee by $40. The commenter stated that to now increase it again by another $90 is unjustified, particularly when USCIS estimates that its projected workload volume for Form I-751 will decrease by 10,000 receipts from 2010/2011 levels. The commenter stated that if I-751 workloads will decrease, there is no justification for an 18 percent fee increase.

As noted previously in this preamble, because USCIS operates almost exclusively on fees, DHS sets the USCIS fee schedule based on a standard full cost recovery model. This means that DHS must account for more than just projected total receipts when setting the fee for a given benefit. For instance, DHS must account for the likelihood of fee waivers by setting fees based on projected total

fee-paying

receipts, not just projected total receipts. And DHS must also account for the costs associated with adjudicating each benefit request. If DHS did not account for fee waivers when setting fees, or for the cost of adjudicating benefit requests, DHS would not recover sufficient revenue to cover the cost of the services that DHS provides. Moreover, because DHS provides some immigration adjudication and naturalization services on a fee-exempt, fee-reduced, or fee-waived basis, fee-paying applicants and petitioners must pay more than their directly attributable share of costs.

In addition, in the case of the Form I-751 specifically, although workload volume decreased 5.5 percent since the 2010 final rule, fee-paying volume decreased at a greater rate of 8.4 percent. Moreover, the completion rate, or the average hours per adjudication, increased 39 percent since the 2010 final rule. Given that fewer fee-paying applicants are now absorbing the increased costs associated with longer adjudications, DHS believes the proposed $90 increase since the fee was last set six years ago is reasonable. Although the proposed increase would impose an additional cost burden on filers, it results from application of the standard USCIS fee methodology. A downward adjustment in favor of Form I-751 petitioners would result in upward adjustment of other fees. Furthermore, if the petitioner cannot pay the fee, they may request that the fee be waived.

See

8 CFR 103.7(c)(3)(vii). Therefore, this final rule sets the Form I-751 fee at $595, as proposed.

l. Petition for Alien Fiancé(e), Form I-129F

In the NPRM, DHS proposed to increase the fee for the Petition for Alien Fiancé(e), Form I-129F, from to $340 to $535.

See

proposed 8 CFR 103.7(b)(1)(i)(K); 81 FR 23967. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request.

Some commenters objected to the proposed fee increase, stating that it could discourage family reunification. The commenters stated that the increase would be particularly burdensome because there is no fee waiver option when filing this form.

As noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides on a fee-exempt, fee-reduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee methodology as often as possible, and to avoid overuse of DHS's discretion to eliminate or reduce fees for special groups of beneficiaries.

The proposed fee for the Form I-129F resulted from application of the standard USCIS fee methodology. DHS values its role in assisting U.S. citizens who wish to bring a foreign national fiancé(e) to the United States to marry, and is sensitive to the extra burden that the increased filing fee may impose. But if USCIS were to waive or exempt Form I-129F fees, then other applicants, petitioners, and requestors would pay higher fees to cover the cost. Because DHS did not find a compelling reason to shift the burden of the Form I-129F fee increase onto other applicants, this final rule sets the Form I-129F fee at $535, as proposed.

Moreover, as a general matter, DHS does not waive fees for petitions that require the beneficiaries to demonstrate that they will be able to support themselves financially, or that require the filing of an affidavit of support. A citizen who files Form I-129F must document his or her ability to financially support his or her foreign national fiancé(e). Because a few waiver options would be inconsistent with this financial support requirement, DHS declines to allow fee waivers for this form.

m. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360

In the NPRM, DHS proposed to increase the fee for the Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, from $405 to $435. Proposed 8 CFR 103.7(b)(1)(i)(T); 81 FR 23968. DHS proposed to hold the increase for these benefit types to an 8 percent increase

because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on individuals requesting these types of benefits.

See

81 FR 26915.

The proposed increase was 7.4 percent due to rounding.

Some commenters objected to the proposed fee increase because of its potential effect on religious workers. The commenters stated that religious workers must file additional forms and pay the required fees to obtain LPR status. The commenters noted that these workers benefit the United States by becoming integral parts of their religious ministries, participating in community outreach, and making specific connections with immigrants who speak the same language. For these reasons, the commenters requested that the agency not finalize the proposed fee increase.

Form I-360 may be used to obtain any of a large number of immigration benefits, some of which allow petitioners to file the form on a fee-exempt basis.

Many petitioners may

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

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

For those petitioners who are not fee-exempt, DHS recognizes that fee increases impose a burden, and DHS takes steps to mitigate such burdens as appropriate. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality. In this case, DHS proposed to apply the reduced fee increase (8 percent) to the Form I-360, for the reasons stated previously and consistent with DHS's practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that this departure from the standard fee methodology would also result in higher fees for others.

See

81 FR 26915. Although DHS acknowledges the importance of the religious worker program to many communities, any further departure would only heighten the effect on the rest of the fee schedule, and would not be consistent with DHS's overall fee methodology. In addition, unlike many of the fee-exempt Form I-360 petitioners, religious workers fall into the category of employment-based immigrants for whom petitioners must demonstrate the ability to pay a salary.

See, e.g.,

8 CFR 204.5(g)(2) (requiring a petition which requires an offer of employment to be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage). This final rule therefore sets the fee for Form I-360 at $435, as proposed.

n. Notice of Appeal or Motion, Form I-290B

DHS proposed to increase the fee for the Notice of Appeal or Motion, Form I-290B, from to $630 to $675. Proposed 8 CFR 103.7(b)(1)(i)(S); 81 FR 26938. DHS proposed to hold the increase for these benefit types to 8 percent

because the combined effect of cost, fee-paying volume, and methodology changes since the last fee rule would otherwise place an inordinate fee burden on the particular individuals requesting these types of benefits.

See

81 FR 26915.

The proposed increase was 7.1 percent due to rounding.

Some commenters objected to the proposed fee increase. Commenters stated that the resulting fee, though waivable,

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

If the Form I-290B is being filed to appeal or reopen the denial of an immigration benefit request that is exempt or where a fee has been waived, the Form I-290B fee may also be waived by USCIS if the applicant or petitioner demonstrates that he or she is unable to pay the fee. 8 CFR 103.7(c)(3)(vi) and 103.7(c)(1)(iii). Further, there is no fee for Form I-290B when an Iraqi or Afghan national who worked for, or on behalf of, the U.S. Government in Iraq or Afghanistan appeals a denial of a petition for a special immigrant visa. 8 CFR 103.7(b)(1)(i)(S).

DHS appreciates the concerns of the commenters and does not intend to hinder individuals from receiving benefits for which they are eligible. At the same time, DHS must recover the full costs of the services that USCIS provides, or else risk reductions in service quality. In this case, DHS proposed to apply the reduced fee increase (8 percent) to these benefit requests, for the reasons stated previously and consistent with DHS's practice of holding a number of benefit requests to this reduced fee increase. DHS was mindful that although this departure from the standard fee methodology would result in lower fees for Form I-290B filers, it would also results in higher fees for others. 81 FR 26915. Any further departure would only increase the effect on the rest of the fee schedule, and would not be consistent with DHS's overall fee methodology. DHS addresses requests for service quality improvements and credit card payments later in this preamble. DHS has made no changes to the fee in this final rule as a result of these comments, and is finalizing the Form I-290B fee at $675, as proposed.

o. Application for Civil Surgeon Designation, Form I-910

In the NPRM, DHS proposed to increase the fee for the Application for Civil Surgeon Designation, Form I-910, from $615 to $785.

See

proposed 8 CFR 103.7(b)(1)(i)(TT); 81 FR 26939. Form I-910 is used to request recognition of a physician as a civil surgeon for purposes of performing mandatory medical examinations on intending immigrants to determine whether they are inadmissible based on health-related grounds.

See

8 CFR 232.2(b). The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request.

At least one commenter stated that the proposed increase may have a chilling effect on requests from physicians to become approved civil surgeons. The commenter suggested the possibility of employing a tiered-fee structure, in which USCIS would offer a lower application fee in exchange for a physician's commitment to discount fees for vulnerable children and youth and other indigent applicants.

As noted, the proposed fee increase for the Form I-910 was the result of application of the standard USCIS fee methodology to this benefit request. When DHS departs from the standard USCIS fee methodology to reduce fees for one group, fees for other groups increase to recover full cost. With respect to the proposal to establish a tiered fee structure for the application, implementing such fees would require eligibility and evidentiary requirements for each fee and income level established. This would add administrative complexity, and further increase costs. Additionally, USCIS would not know whether such civil surgeons complied with their commitments to charge lower fees without regulating and monitoring those civil surgeons, and incurring the time and costs to do so. Accordingly, no changes were made in this final rule, which sets the Form I-910 fee at $785, as proposed.

p. Application for Advance Permission To Enter as a Nonimmigrant, Form I-192, and Application for Waiver of Passport and/or Visa, Form I-193

In the NPRM, DHS proposed to increase the fee for the Application for Advance Permission to Enter as a Nonimmigrant, Form I-192, and Application for Waiver of Passport and/or Visa, Form I-193, from $585 to $930.

See

proposed 8 CFR 103.7(b)(1)(i)(P); 81 FR 26938. The proposed fee increase was the result of application of the standard USCIS fee methodology to this benefit request. In the FY 2016/2017 fee review, USCIS grouped these benefit requests with other similar benefit requests, specifically, Forms I-191, I-212, I-601, and I-612.

One commenter stated that for certain filers, CBP, and not USCIS, adjudicates the benefit request.

The commenter stated that it would be unfair to increase

the fee for Form I-192 applications adjudicated by CBP, because those adjudications do not increase USCIS costs.

The commenter stated that the proposed increase in the fee for Form I-192 would burden Canadian and Bermudan nonimmigrant waiver applicants in particular, because unlike other nonimmigrant waiver applicants who submit their applications at the same time as visa applications at no additional charge, Canadians and Bermudans do not require a visa to enter the United States, and thus pay the full filing fee to submit the waiver application. The commenter stated that an increase in the filing fee will hurt local economies in border towns because “every dollar spent on a waiver application is a dollar not spent on tourism or retail.” The commenter did not provide further data or analysis on the potential impact of the proposed fee increase on such economies.

The commenter acknowledged that USCIS adjudicates Form I-192 for T and U nonimmigrants.

The commenter did not mention Form I-193 applications, but such applications are similarly affected by this rulemaking.

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

C. Fee Waivers and Exemptions

DHS proposed no changes to the USCIS fee waiver policies in the NPRM. DHS noted, however, that the lost revenue from fee waivers and exemptions has increased markedly, from $191 million in the FY 2010/2011 fee review to $613 million in the FY 2016/2017 Fee Review. DHS also explained the fee waiver process.

See

81 FR 26922. DHS received a number of comments on its fee waiver and exemption policies. Some commenters on this subject requested that DHS permit fee waivers for additional immigration benefit requests. Others asked that DHS make more requests exempt from fee requirements.

Applicants, petitioners, and requestors who pay a fee cover the cost of processing requests that are fee-waived or fee-exempt.

Id.

While a number of commenters suggested that USCIS expand the range of applications and petitions for which USCIS would consider a fee waiver, none provided a compelling argument for why a particular form that is not eligible for fee waivers should be made eligible in this final rule.

USCIS compares fee-paying receipts to the total number of receipts to determine a fee-paying percentage for each immigration benefit request. See page 16 of the supporting documentation in the rulemaking docket for an explanation of fee-paying volume and methodology.

For example, one commenter recommended that USCIS make fee waivers available for all applications. DHS recognizes that some applicants cannot pay filing fees, and has established a fee waiver process for certain forms and benefit types. USCIS carefully considers the merits of each fee waiver request before making a decision. Expansion of fee waiver policy to include all immigration benefit request fees would significantly increase administrative and adjudicative costs. Although DHS recognizes that filing fees impose a heavy burden on people of limited financial means, the costs of allowing fee waivers across the board would be borne by all other fee payers, because the cost of providing services with a discount or without a fee must be transferred to those who pay a full fee. Thus, USCIS takes a relatively careful position with respect to transferring costs from one applicant to another through the expansion of fee waiver eligibility.

DHS notes that, in response to stakeholder concerns about the fee waiver process and rejections of fee waiver requests, USCIS recently published a new Request for Fee Waiver, Form I-912. It revised the form to clarify the instructions, make the form less complex, and reduce the number of incomplete fee waiver requests that are ultimately rejected. In addition, because many applicants have had difficulty providing all the requested information in the spaces provided on the previous form, USCIS also included text boxes that provide space for explanations. Those boxes reduce the need for attachments, and make the form more user-friendly.

As for fee exemptions, DHS already exempts from fees those requests with compelling circumstances. These exemptions include benefit requests for a range of humanitarian and protective services, such as refugee and asylum processing, assisting victims of crime and human trafficking, and other related services. USCIS also may allow fee exemptions based on economic necessity in the event of incidents such as an earthquake, hurricane, or other natural disasters affecting localized populations by using the authority of the Director of USCIS at 8 CFR 103.7(d). DHS proposed no new exemptions in the NPRM, and knows of no compelling reason for exempting a new group of applicants, petitioners, or requestors from a fee. Therefore, DHS has added no new exemptions in this final rule.

D. Naturalization

In the NPRM, DHS proposed to increase the fee for the Application for Naturalization, Form N-400, from $595 to $640. Proposed 8 CFR 103.7(b)(1)(i)(BBB); 81 FR 26939. DHS proposed to hold the increase for the Form N-400 to the reduced fee increase (8 percent)

to support naturalization. DHS also proposed an additional fee option for those non-military naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. Proposed 8 CFR 103.7(b)(1)(i)(BBB)(1); 81 FR 26939. Specifically, DHS proposed that such applicants would receive a 50 percent discount, resulting in a fee of $320 for Form N-400. DHS proposed this reduced fee option to limit any potential economic disincentives that some eligible naturalization applicants may face when deciding whether or not to seek U.S. citizenship. The lower fee is intended to help ensure that those who have become eligible for naturalization are not prohibited from naturalizing due to their economic means.

The proposed increase was a 7.5 percent due to rounding.

Several commenters stated that the price of this benefit is already too high. Another commenter stated that the fee for Form N-400 should be increased based on the value of U.S. citizenship, not just the costs associated with adjudicating the form. And, while generally opposed to the fee increase, several commenters wrote in support of USCIS' efforts to alleviate some of the associated burdens by establishing a three-level fee for Form N-400, including a fee of $320 for certain low-income applicants who do not qualify for the existing fee waiver. The commenters stated that by doing so, USCIS will expand the pool of potential applicants.

DHS agrees with commenters that citizenship is a benefit that deserves special consideration and promotion. Therefore, DHS did not propose a fee

that reflected all of the costs associated with the relative complexity of the adjudication. The Application for Naturalization fee has not changed in nearly a decade. Additionally, the fee established in this rule for Form N-400 is less than it would be if the 2007 fee were simply adjusted for inflation. According to the Bureau of Labor Statistics, the semiannual average inflation from July 2007 to July 2016 was 16.1 percent.

If adjusted only for inflation, the current $595 fee would be $690, which is $50 more than the $640 fee set by this rule. DHS has not previously adjusted Form N-400 by CPI-U inflation, but provides this as a point of comparison.

The semiannual average consumer price index for all urban consumers (CPI-U) was 205.7 in July 2007 and 238.8 in July 2016. The change in the Index over 9 years was 33.1 or 16.1 percent.

See

U.S. Department of Labor, Bureau of Labor Statistics, All Urban Consumers (CPI-U) Semiannual Average tables, available at

http://www.bls.gov/cpi/cpi_dr.htm.

As for the comment requesting that the Form N-400 fee be based on the value of U.S. citizenship, doing so would require quantifying that value, which assuming it is appropriate or even possible to do precisely, would be beyond the scope established by the proposed rule. The USCIS ABC model is based on estimated operational costs, and DHS has set the fee at a level that adheres to the fee review methodology, which includes full cost recovery.

See

new 8 CFR 103.7(b)(1)(i)(BBB). DHS therefore sets the fee for Form N-400 at $640, as proposed.

E. Improve Service and Reduce Inefficiencies

Many of the comments received that opposed fee increases cited delays in processing times and dissatisfaction with customer service. Some of these commenters stated that they would embrace the fee increases if they resulted in faster processing and improved customer service. A few commenters asserted that if DHS implements any type of USCIS fee increase, then USCIS should guarantee that it will reduce benefit request processing times. At least one commenter recommended increasing the fees further so there would be no excuse for delays in processing. Other commenters wrote about expanding electronic filing and receipting to reduce mail handling and shipping of paper. USCIS acknowledges that since it last adjusted fees in FY 2010, the agency has experienced elevated processing times compared to the goals established in the 2007 fee rule. See 72 FR 29858-29859. These processing delays have contributed to case processing backlogs. This can partially be attributed to having removed the surcharge previously applied to the IEFA fee schedule to recover costs related to RAIO, the SAVE program, and the Office of Citizenship. This was done in anticipation of congressional appropriations for these programs, consistent with the President's budget requests. As the anticipated budget request was not granted, since FY 2012 USCIS has used other fee revenue to support these programs. Under this final rule, DHS will adjust USCIS fees by a total weighted average increase of 21 percent; the total 21 percent weighted average increase will be allocated as follows:

• To reinstate a surcharge in the fee schedule to sustain the current operating levels of RAIO, the SAVE program, and the Office of Citizenship (approximately 8 percent);

• To account for reduced revenue stemming from an increase in fee waivers granted since FY 2010 (approximately 9 percent); and

• To recover the costs needed to sustain current operating levels while allowing for limited, strategic investments necessary to ensure the agency's information technology infrastructure is strengthened to protect against potential cyber intrusions, and to build the necessary disaster recovery and back-up capabilities required to effectively deliver the USCIS mission (approximately 4 percent).

Through this final rule, USCIS expects to collect sufficient fee revenue to sustain current operating levels of RAIO, the SAVE program, and the Office of Citizenship. This change will allow USCIS to discontinue diverting other fee revenue to fund these programs, thereby increasing the resources available to fund additional personnel

needed to improve case processing, reduce backlogs, and move toward processing times that are in line with the commitments in the FY 2007 fee rule.

For additional information on staffing, see second bullet on pg. 13, Alignment of USCIS Staffing Allocation Model with the Fee Review on pg. 26, and Appendix XIII Table 12: IEFA Positions by Office in the supporting documentation.

While the agency remains committed to achieving the processing goal commitments in the 2007 fee rule, it acknowledges that these goals remain ambitious. By its very nature, the fee review cycle uses historical staffing and workload information to establish future needs, and as a result, cannot identify the exact resources necessary to guarantee future processing goals. In addition, superseding priorities may arise, which could not have been known at the time fee cycle calculations were made, that may impact USCIS' ability to meet customer expectations. USCIS will need to continue addressing emergent issues and their associated costs, which may impact case processing efficiency and backlogs. Nevertheless, the agency holds the 2007 processing goals to be among its highest priorities and recommits to achieving them as quickly as possible.

In addition, USCIS is committed to providing stakeholders and customers with the information they need, when they need it. To that end, USCIS is transforming how it calculates and posts processing time information to improve the timeliness of such postings, but more importantly, to achieve greater transparency of USCIS case processing. For instance, to make current published processing time information more transparent and less complex for customers to interpret, USCIS is evaluating the feasibility of calculating processing times using data generated directly from case management systems, rather than with self-reported performance data provided by Service Centers and Field Offices. Preliminary findings suggest that USCIS will be able to publish processing times sooner and with greater transparency by showing different processing times for each office and form type. USCIS is also considering publishing processing times using a range rather than using one number or date. This approach would show that, for example, half of cases are decided in between X and Y number of months.

USCIS also expects to improve the customer experience as it continues to transition to online filing and electronic processing of immigration applications and petitions. With the new person-centric electronic case processing environment, USCIS will possess the data needed to provide near-real-time processing updates to the customer that will identify the case status and time period that has elapsed between actions for each individual case. This will allow greater transparency to the public on how long it will take to process each case as it moves from stage to stage (

e.g.,

from biometrics collection, to interview, to decision).

DHS appreciates the comments requesting expansions of electronic filing, and USCIS is actively planning the expansion of its online case management system for the submission and adjudication of immigration benefits. As of the end of FY 2016, approximately 17 percent of the agency's intake was processed through

online filing and we are striving to increase that level.

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

F. Premium Processing

Premium processing is a program by which filers may request 15-calendar-day processing of certain employment-based immigration benefit requests if they pay an extra amount. 8 CFR 103.7(b)(1)(i)(RR) and (e); proposed 8 CFR 103.7(b)(1)(i)(SS); 81 FR 26939. In 2000, Congress set the premium processing fee at $1,000 and authorized USCIS to adjust the fee for inflation, as determined by the Consumer Price Index (CPI). Section 286(u) of the INA, 8 U.S.C. 1356(u). USCIS adjusted the premium processing fee to $1,225 by using the CPI in the 2010 final rule.

See

75 FR 58979. DHS proposed no change to premium processing fees or regulations because forecasted premium processing revenue is sufficient to cover the projected costs of providing the premium service and other permissible infrastructure investments.

Premium processing fees are increased using the CPI through statutory authority.

See

INA sec. 286(u), 8 U.S.C. 1356(u).

Several commenters wrote to request that USCIS expand premium processing to other forms, including family-based immigration benefit requests, naturalization, relief for victims of crimes who assist law enforcement, and forms related to the EB-5 Immigrant Investor Program. Some commenters stated that using premium processing revenue may alleviate backlogs. Other commenters stated that premium processing is essentially mandatory to ensure the timely and efficient processing of their employment-based petitions.

Assuming DHS has the general authority to offer expedited processing fees to additional forms, the timing requirements of many adjudications involve considerations that are out of USCIS' control. For example, background checks, the timing of which are not controlled by USCIS, are required for: The Application for Temporary Protected Status, Form I-821; the Application for Naturalization, Form N-400; the Application for Provisional Unlawful Presence Waiver, Form I-601A; and the Application to Register Permanent Residence or Adjust Status, Form I-485. These and many other forms are not suited for expedited processing. USCIS already seeks processing efficiencies where available and shifts workload to balance volume surges, seasonal demands, and competing priorities.

In addition, where expedited processing may be possible, it would be extraordinarily time-intensive to determine the appropriate fee amount, target adjudication timeframe, and staffing levels needed to implement a new expedited processing program. Expanding the premium processing program would require USCIS to estimate the costs of a service that does not currently exist with sufficient confidence that it can deliver the service promised and not impair service for other immigration benefit requests. Nevertheless, USCIS will continue considering additional premium processing services and its ability to improve services without creating new challenges. DHS made no changes in this final rule as a result of these comments.

G. Immigrant Investors

In the NPRM, DHS proposed a number of changes to fees related to the Employment-Based Immigrant Visa, Fifth Preference (EB-5) “Immigrant Investor” Program.

Specifically, DHS proposed to increase the fee for the Application for Regional Center Under the Immigrant Investor Program, Form I-924, from $6,230 to $17,795.

See

proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. DHS proposed to establish a new fee for the Annual Certification of Regional Center, Form I-924A, at $3,035.

See

proposed 8 CFR 103.7(b)(1)(i)(XX); 81 FR 26939. DHS proposed to increase the fee for the Immigrant Petition by Alien Entrepreneur, Form I-526, from $1,500 to $3,675.

See

proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. Finally, DHS proposed to hold the fee for the Petition by Entrepreneur to Remove Conditions, Form I-829, at $3,750.

See

proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. With the exception of the proposed fee for Form I-829, each proposed EB-5 fee increase was the result of application of the standard USCIS fee methodology to the applicable benefit request.

The EB-5 program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. The EB-5 “regional center program” was later added in 1992 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Pub. L. 102-395, sec. 610, 106 Stat 1828 (Oct. 6, 1992). The EB-5 immigrant classification allows qualifying individuals, and any accompanying or following to join spouses and children, to obtain lawful permanent resident (LPR) status if the qualifying individuals have invested, or are actively in the process of investing, $1 million in a new commercial enterprise.

See

INA sec. 203(b)(5)(A) and (C), 8 U.S.C. 1153(b)(5)(A) and (C). To qualify, the individual's investment must benefit the U.S. economy and create full-time jobs for 10 or more qualifying employees. INA sec. 203(b)(5)(A)(ii), 8 U.S.C. 1153(B)(5)(A)(ii). If the investment is in a Targeted Employment Area (TEA) (

i.e.,

a rural area or an area that has unemployment of at least 150% of the national average), the required capital investment amount is $500,000 rather than $1 million. INA sec. 203(b)(5)(C)(ii), 8 U.S.C. 1153(b)(5)(C)(ii); 8 CFR 204.6(f)(2). Entrepreneurs may meet the job creation requirements through the creation of indirect jobs by making qualifying investments within a new commercial enterprise associated with a regional center approved by USCIS for participation in the regional center program. INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5); 8 CFR 204.6(e) and (m)(7). For more information on the EB-5 program, see

https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa.

Several commenters objected to the proposed increases, noting that these are some of the highest proposed fee increases, while the related benefit requests have some of the longest processing times. Another commenter wrote to applaud the increase to EB-5 fees in general, but requested that USCIS conduct site visits and evaluate whether regional centers are misrepresenting themselves to investors.

As an initial matter, and as noted previously, DHS is authorized to set fees at a level that ensures recovery of the full costs of providing immigration adjudication and naturalization services. Because USCIS relies almost entirely on fee revenue, in the absence of a fee schedule that ensures full cost recovery, USCIS would be unable to sustain an adequate level of service, let alone invest in program improvements. Full cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides on a fee-exempt, fee-reduced, or fee-waived basis. DHS is therefore mindful to adhere to the standard USCIS fee methodology as often as possible, and to avoid overuse

of DHS's discretion to eliminate or reduce fees for special groups of beneficiaries.

The proposed fees for three of the four EB-5 Program forms resulted from application of the standard USCIS fee methodology,

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

See

81 FR 26918. Each of these factors contributed to the proposed EB-5 Program fees.

The proposed fee for the Form I-829 was above the model output, as described in the proposed rule.

In the immediately succeeding section, as well as in the Paperwork Reduction Act section of this preamble, DHS responds to additional comments on the proposed EB-5 fees.

1. Application for Regional Center Under the Immigrant Investor Program, Form I-924

In the NPRM, DHS proposed to increase the fee for the Application for Regional Center Under the Immigrant Investor Program, Form I-924, from $6,230 to $17,795.

See

proposed 8 CFR 103.7(b)(1)(i)(WW); 81 FR 26939. The proposed fee increase was the result of application of the standard USCIS fee methodology to the benefit request.

At least one commenter wrote to oppose the proposed Form I-924 fee increase due to the possible impact on EB-5 regional centers. The commenter recommended a possible reduced fee for centers in existence for fewer than 5 years. The same commenter stated dissatisfaction with the level of customer service that USCIS has provided and suggested that USCIS create an electronic platform for EB-5 regional centers to monitor their applications and cases. Other commenters stated that the proposed fee increase were unreasonable and inflated, especially in light of long processing delays. At least one commenter stated that regional centers in rural and high-unemployment areas are less capable of withstanding long processing delays. The same commenter stated that the proposed 286 percent fee increase for the Form I-924 should be accompanied by an assurance that processing times would be cut by 75 percent. The commenter stated that an alternative to processing time reductions would be to create a process in which regional centers would be automatically approved if USCIS does not provide a notice of action within 4 months, or if USCIS does not summarily reject a petition for which there have been prior approvals on the same project. Another commenter stated that DHS could adopt a tiered fee structure for Form I-924 based on whether the associated investment project was an actual or exemplar project. At least one commenter mentioned the potential for legislation to alter the regional center requirements.

USCIS understands the desire of EB-5 regional centers to receive prompt and courteous service, and the agency strives to provide the best level of service possible. As the program has grown and applicants and projects have become more advanced, the current fee level has proven to be inadequate to ensure that USCIS has the resources it needs. The proposed fee increase was determined using USCIS's standard fee-setting methodology, based on the number of hours required to adjudicate Form I-924. These adjudications require economists and adjudications officers to thoroughly review extensive business documents, economic impact analyses, and other project-related documents. The proposed fee increase was, in part, calculated to allow USCIS to hire additional staff to process Forms I-924 and provide better and more thorough service.

Currently, USCIS does not have the data to quantify alternative fees for regional centers in existence for fewer than 5 years. In addition, USCIS does not track Form I-924 completion rates based on whether the project involves a rural or urban area, an area of high or low employment, or an actual or exemplar project. USCIS also cannot commit to across-the-board processing time reductions as adjudications involve case-by-case review of complex applications and related supplementary information, nor can it implement a process that automatically approves a regional center without a complete adjudication. Moreover, USCIS does not prioritize Form I-924 workloads based on whether regional center projects involve a rural or urban area, or an area of high or low employment. DHS may consider exploring the feasibility of such a change in the future, but will not implement a change at this time.

With respect to the commenter that identified the possibility of legislative changes, USCIS greatly appreciates the work of stakeholders towards reauthorization of the Regional Center Program and reform of the EB-5 program more generally. USCIS is cognizant of potential legislative changes to the EB-5 program and is also aware that such changes may require adjustments to USCIS adjudication processes. In the event that legislative changes are enacted, USCIS would assess any significant changes and reassess program requirements, adjudication process, and required fees. For now, however, and for the reasons stated previously, this rule sets the Form I-924 fee at $17,795, as proposed.

2. Immigrant Petition by Alien Entrepreneur, Form I-526

In the NPRM, DHS proposed to increase the fee for the Immigrant Petition by Alien Entrepreneur, Form I-526, from $1,500 to $3,675.

See

proposed 8 CFR 103.7(b)(1)(i)(W); 81 FR 26938. The proposed fee increase was the result of application of the standard USCIS fee methodology to the benefit request.

Some commenters wrote to request additional information on the proposed fee increase. Another commenter stated that a lack of processing efficiency can cause problems for Form I-526 applicants. Specifically, the commenter stated that EB-5 project sponsors sometimes agree to put an investor's money in escrow until the Form I-526 is approved. If the form is denied, project sponsors return those funds to the investor; if approved, the project sponsor uses those funds on the project. The commenter stated that such projects can languish when the investor's money is held in escrow for lengthy periods of

time. According to the commenter, although escrow arrangements provide substantial benefits to program integrity, they are becoming commercially untenable due to Form I-526 processing times. The commenter also asserted that projects themselves are also hurt by lengthy processing times, as projects may be well underway by the time USCIS denies the forms.

USCIS has taken multiple steps towards reducing Form I-526 processing times. As previously mentioned, USCIS is in the process of hiring and training additional adjudications officers, economists, and support staff for these form types. Additionally, USCIS is working to revise the EB-5 regulations and is preparing revisions to the EB-5 Policy Manual. USCIS is also improving the forms and form instructions for the EB-5 program. The EB-5 program fee increases will further these agency efforts with the goal of improving operational efficiencies while enhancing predictability and transparency in the adjudication process. USCIS understands that long delays in Form I-526 adjudications negatively impact both immigrant investors and the projects awaiting the release of their investment funds from escrow. USCIS strives to process Form I-526 filings as soon as practicable. In addition, regarding the release of escrowed funds, USCIS permits EB-5 financing to replace interim financing where the financing to be replaced was contemplated as temporary financing that would be replaced.

DHS made no changes to the proposed Form I-526 fee as a result of these comments, and is finalizing the fee at $3,675, as proposed.

See Policy Memorandum,

EB-5 Adjudications Policy

(May 30, 2013) at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/May/EB-5%20Adjudications%20PM%20(Approved%20as%20final%205-30-13).pdf.

3. Petition by Entrepreneur To Remove Conditions, Form I-829

In the NPRM, DHS proposed to hold the fee for the Petition by Entrepreneur to Remove Conditions, Form I-829, at $3,750.

See

proposed 8 CFR 103.7(b)(1)(i)(PP); 81 FR 26939. While the fee model calculated a fee of $2,353, DHS proposed to maintain the current fee for such petitions.

See

81 FR 26918. Because of the recent and continued growth and maturation of the EB-5 Program, associated costs over the next few fiscal years are uncertain. Among other things, the final parameters of the program are still evolving, such as the number of USCIS employees and facilities necessary to carry out enhanced review of EB-5 filings, as well as site visits. This uncertainty makes it unclear whether EB-5 related fees will fully fund EB-5 program activities. DHS therefore proposed to keep the Form I-829 at the current fee, above the full cost recovery calculation, to shield USCIS against potential, but likely rising costs.

If DHS had decided to adjust the fee consistent with the adjustment that DHS made to most other fees, the proposed fee would have decreased to $3,280. The proposed fee would have been higher than the model output because of Cost Reallocation. Other fees would also have been adjusted accordingly.

At least one commenter indicated current USCIS processing times for Form I-829 extend beyond the 1-year automatic extension of the entrepreneur's conditional residence, imposing an additional burden on petitioners traveling outside of the United States. The commenter stated that delays in processing Form I-829 mean that investments must remain at risk for an extended period of time. The commenter added that USCIS could increase the efficiency of Form I-829 adjudications by consolidating the business-related portions of multiple Forms I-829 associated with a single investment project into a single adjudication. Another commenter recommended that USCIS implement electronic filing of this and other forms related to the Immigrant Investor Program to increase efficiency.

USCIS recognizes that lengthy Form I-829 processing times place a strain on EB-5 investors who are awaiting approval of their applications to adjust to LPR status. USCIS is working diligently to add staffing, and the agency plans to publish regulatory action, policy guidance, and revised forms with the goal of improving service delivery to applicants and improving the integrity of the EB-5 program. In part due to the tentative nature of these plans, DHS has no way to reliably quantify any potential cost savings that might be associated with these actions, and therefore could not propose to reduce the Form I-829 fee to account for such savings.

DHS appreciates the suggestions for improving EB-5 processing times. DHS clarifies that USCIS already has processes in place to streamline adjudication of the business-related portions of multiple Forms I-829 associated with a single, new investment project. Specifically, when USCIS receives a regional center-associated Form I-829 that involves a new commercial enterprise, USCIS reviews the first two petitions associated with that new commercial enterprise to determine if there are specific project-related issues that would apply to all petitioners associated with the new commercial enterprise. After completing that review, USCIS commences adjudication of all Forms I-829 associated with that new commercial enterprise filed within a given period. Similarly, when USCIS receives a regional center-associated Form I-829 that involves a previously reviewed commercial enterprise, USCIS immediately assigns that petition for adjudication. In other words, USCIS currently adjudicates Form I-829 petitions in “first in, first out” order by new commercial enterprises. USCIS constantly searches for new ways to increase efficiencies in the adjudications process, and for that reason cannot commit to a uniform queuing practice in this rule, or reduce associated fees in anticipation of heretofore unrealized savings.

USCIS does not have immediate plans to allow electronic filing for EB-5 requests, but appreciates commenters' desire to avoid voluminous paper filings. USCIS plans to allow electronic filing for EB-5 requests in the future. DHS made no changes to the proposed Form I-829 fee, or the policies regarding EB-5 adjudications, as a result of these comments. The final rule sets the Form I-829 fee at $3,750, as proposed.

H. Methods Used To Determine Fee Amounts

As described previously and in the NPRM, the standard USCIS fee-setting methodology is intended to ensure full cost recovery for USCIS immigration adjudication and naturalization services. DHS based the proposed USCIS fees on the estimated costs of providing immigration benefit adjudication and naturalization services. In addition, to the extent possible, and with limited exception, DHS based the proposed USCIS fees on the relative identifiable costs associated with providing each particular benefit or service. This fee methodology is consistent with government-wide fee-setting guidelines outlined by OMB Circular A-25, 58 FR 38142 (July 15, 1993);

the principles of the Chief Financial Officers Act of 1990, 31 U.S.C. 901-03; and the Federal Accounting Standards Advisory Board (FASAB) guidelines.

Additional information about the fee methodology can be found in this preamble, the preamble for the

proposed rule, and the supporting documentation accompanying this rulemaking.

Office of Management and Budget, Circular A-25, User Charges, available at

http://www.whitehouse.gov/omb/circulars_a025/.

Handbook, Version 14 (06/15), available at

http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf.

The USCIS fee methodology is not intended to yield a profit for the agency nor the Federal Government. The sole purpose of USCIS IEFA fees is to achieve full cost recovery to allow the agency to provide an adequate level of service. USCIS filing fees are not designed to function as tariffs, to generate general revenue to support broader policy decisions, or to deter certain behavior. As previously stated in this final rule, filing fees are generally not intended to influence public policy in favor of or in opposition to immigration, support broader infrastructure, or cover costs beyond USCIS.

DHS received a number of comments regarding the methods that DHS uses to determine fee amounts. Commenters made statements about the need for full cost recovery without appropriations, the decision to exclude revenue from certain benefits in the proposed fee schedule, potential alternative fee methodologies, and the potential for cost reductions. DHS responds to these comments below.

1. Recovery of Full Cost Without Appropriations

Some commenters suggested that USCIS seek appropriations to reduce immigration benefit request fees. Some commenters opposing the fee increase mentioned that immigrants in the United States pay Federal income taxes, Social Security taxes, and other fees and questioned whether those are being accounted for in USCIS fee calculations. Commenters stated that appropriations could help reduce processing times or fund programs that do not recover full cost on their own, such as RAIO, the SAVE program, and the Office of Citizenship.

DHS acknowledges that immigrants pay both Social Security and various Federal taxes and fees, but the decision whether to fund USCIS services through tax revenues belongs to the U.S. Congress. And in recent years, such funding has been unavailable. As noted in the NPRM, USCIS is almost entirely funded by fees and must recover the full cost of its operations.

See

81 FR 26905-26912. Fees collected from individuals and entities filing immigration benefit requests are deposited into the IEFA and used to fund the cost of immigration benefits and naturalization.

Id.

USCIS has not received any substantial appropriations since FY 2011. Similarly, USCIS received no FY 2016 discretionary appropriations for the SAVE program or the Office of Citizenship.

See

DHS Appropriations Act 2016, Public Law 114-113, div. F. (Dec. 18, 2015) and 81 FR 26912. USCIS did not receive appropriations for refugee and asylum processing or the SAVE program after FY 2011. USCIS received $2.5 million for the immigrant integration grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113-76), but the agency did not receive appropriations for that program in FY 2015 or FY 2016. The only USCIS appropriations for FY 2016 provided funding for the E-Verify employment eligibility verification program.

See

Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. IV (Dec. 18, 2015) (DHS Appropriations Act 2016). Other than as described, USCIS receives no appropriations to offset the cost of adjudicating immigration benefit requests.

Id.

As a consequence of this funding structure, taxpayers do not bear any costs related to the IEFA and bear only a nominal burden to fund USCIS. However, in the event appropriations are provided that will materially change IEFA fees, then DHS could pursue a rulemaking to adjust fees appropriately.

Finally, one commenter questioned why SAVE fees charged to local, state, and Federal agencies do not recover the full cost of the SAVE program. USCIS collects SAVE fees from federal government agencies under the authority of the Economy Act, 31 U.S.C. 1535, and from state or local government agencies under the authority of the Inter-Governmental Cooperation Act, 31 U.S.C. 6501. SAVE fees are included in Memoranda of Agreement (MOAs) with user agencies, which are updated based on the established periods of performance. As noted in the proposed rule, SAVE fees impact the IEFA fees established in this rule only as necessary to fund the SAVE costs that remain after taking into account revenue received under the MOAs.

See

81 FR 26911. Fees charged to SAVE users do not cover the full cost of the SAVE program; rather, they only cover the estimated per-query cost of operating the verification system. IEFA funds are used to cover other costs of the program, especially personnel and overhead expenses. In short, then, the funding structure for SAVE is a dual one, in which some costs are covered by reimbursements, and other costs from IEFA funds. Congress has supported this funding arrangement in the past, noting ongoing budget constraints.

As the commenter requests, USCIS and DHS regularly examine SAVE fees, and may modify them in the future.

H.R. Rep. No. 112-492 (May 23, 2012).

2. Exclusion of Temporary or Uncertain Costs, Items, and Programs

As noted in the NPRM, DHS excluded from the fee model the costs and revenue associated with certain programs that are time-limited or that may otherwise be narrowed or terminated, including because they are predicated on guidance and not preserved in regulations or statute.

See

81 FR 26914-26915. This exclusion applies to the Application for TPS, Form I-821; Consideration of Deferred Action for Childhood Arrivals (DACA), Form I-821D; and Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100) (Nicaraguan Adjustment and Central American Relief Act (NACARA)), Form I-881. As stated in the NPRM, DACA and TPS are both administrative exercises of discretion that may be granted on a case-by-case basis for particular periods of time. Both TPS and DACA, and the individual grants under each, are subject to intermittent renewal or extension at DHS's discretion. For NACARA, the eligible population will eventually be exhausted due to relevant eligibility requirements, including the date by which an applicant was required to have entered the United States. Given that these initiatives or programs are temporary by definition and at the discretion of DHS, USCIS excluded the associated cost and workload from the fee review and did not propose to allocate overhead and other fixed costs to these workload volumes.

See

81 FR 26915.

As noted in the proposed rule, for the purposes of this rulemaking, DHS is including all requests funded from the IEFA in the term “benefit request” or “immigration benefit request” although the form or request may not be to request an immigration benefit. For example, DACA is solely an exercise of prosecutorial discretion by DHS and not an immigration benefit, and would fit under the definition of “benefit request” solely for purposes of this rule. For historic receipts and completion information, see USCIS immigration and citizenship data available at

https://www.uscis.gov/tools/reports-studies/immigration-forms-data.

Some commenters wrote to question the rationale for excluding DACA and TPS from the fee review. Several commenters stated that it is a financial burden to have to renew DACA every 2 years and to renew TPS every 18 months. Other commenters stated that, by their own estimates, the cost of administering DACA is less than the revenue that the program generates. Some commenters stated that fee increases to Forms I-765 and I-131 would deter DACA and TPS renewals and initial applications.

Following consideration of the comments received, DHS retains its earlier position. The practice of excluding these initiatives or programs that are temporary by definition from the fee review mitigates an unnecessary revenue risk, by ensuring that USCIS

will have enough revenue to recover full cost regardless of DHS's discretionary decision to continue these initiatives. This allows DHS to maintain the integrity of its ABC model, ensure recovery of full costs, and mitigate revenue risk from unreliable sources.

For these reasons, the cost of adjudicating requests associated with these policies was not considered, and this final rule excludes from the ABC model the costs and revenue associated with aforementioned policies, as proposed.

3. Setting Fees by Benefit Type

A commenter stated that IEFA fees should be based on the specific immigration benefit sought by a filer, rather than the specific form type used. The commenter noted that USCIS tracks completion rate (

i.e.,

adjudication time) by form number, and that the agency generally establishes a fee for the form type rather than the benefit being sought through the filing, even if the same form can be used to obtain different immigration benefits. For example, Form I-129 is used to request several types of nonimmigrant visa classifications, and a different fee could conceivably be calculated for each such classification.

Currently, the fee is the same for each Form I-129 filed. This fee has historically been calculated based on the average level of complexity for the adjudication of the form.

USCIS already sets some of its fees based on benefit sought, rather than form type used. For example, USCIS sets different fees for Form I-131 depending on the benefit sought, and the agency provides fee exemptions to certain filers of Form I-360. For other forms that have multiple uses, USCIS has not calculated the completion rate with enough precision to determine fees based on the benefits sought by filers of those forms. USCIS officers are required to manually report the time they spend on adjudicating forms; requiring reporting for sub-uses of those forms would divert time from processing requests. In addition, tracking whether filers are submit

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.