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

Federal RegisterNov 14, 2019

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 106, 204, 211, 212, 214, 216, 223, 235, 236, 240, 244, 245, 245a, 248, 264, 274a, 301, 319, 320, 322, 324, 334, 341, 343a, 343b, and 392

[CIS No. 2627-18; DHS Docket No. USCIS-2019-0010]

RIN 1615-AC18

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

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Proposed rule.

SUMMARY:

The Department of Homeland Security (DHS) proposes to adjust certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the full costs of providing adjudication and naturalization services. DHS proposes to adjust USCIS fees by a weighted average increase of 21 percent, add new fees for certain benefit requests, establish multiple fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms to ensure that USCIS has the resources it needs to provide adequate service to applicants and petitioners. Adjustments to the fee schedule are necessary to recover the full operating costs associated with administering the nation's immigration benefits system, safeguarding its integrity, and efficiently and fairly adjudicating immigration benefit requests, while protecting Americans, securing the homeland, and honoring our country's values. USCIS also is proposing changes to certain other immigration benefit request requirements.

DATES:

Written comments must be submitted on or before December 16, 2019.

ADDRESSES:

You may submit comments, identified by DHS Docket No. USCIS-2019-0010, by one of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov.

Follow this site's instructions for submitting comments.

•

Mail:

Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0010 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

FOR FURTHER INFORMATION CONTACT:

Kika M. Scott, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-2130, telephone (202) 272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Effective Date

III. Basis for the Fee Review

A. Legal Authority and Guidance

B. Full Cost Recovery

C. Immigration Examinations Fee Account

D. Fee Review History

IV. FY 2019/2020 Immigration Examinations Fee Account Fee Review

A. USCIS Projected Costs and Revenue

1. Cost Projections

a. Use IEFA Fee Collections To Fund Immigration Adjudication Services Performed by ICE

2. Revenue Projections

3. Cost and Revenue Differential

B. Methodology

1. Volume

a. Workload Volume and Volume Projection Committee

b. Fee-Paying Volume

2. Completion Rates

3. Assessing Proposed Fees

C. Fee-Related Issues Noted for Consideration

1. Accommodating E-Filing and Form Flexibility

2. Processing Time Outlook

V. Proposed Changes in the FY 2019/2020 Fee Schedule

A. Clarify Dishonored Fee Check Re-Presentment Requirement

B. Eliminate $30 Returned Check Fee

C. Fee Waivers

1. Background

2. Cost of Fee Waivers

3. Proposed Fee Waiver Changes

a. Limits on Eligible Forms and Categories

b. Eligibility Requirements

c. Income Requirements

d. Subject to INA Section 212(a)(4) and Affidavit of Support Requirements

e. USCIS Director's Discretionary Fee Waivers and Emergency and Disaster Relief

f. Conforming Edits and Request for Comments

D. Fee Exemptions

1. Form I-765 Exemption Related to Asylees and Refugees

2. Exemptions Related to International Organization Officers and to Agreement Between the U.S. Government and Other Nations

3. Exemptions Related to VAWA and to T and U Nonimmigrant Status Categories

E. Changes to Biometric Services Fee

1. Incorporating Biometric Activities Into Immigration Benefit Request Fees

2. Retaining a Separate Biometric Services Fee for Temporary Protective Status

3. Executive Office for Immigration Review (EOIR) Biometric Services Fee

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

1. Interim Benefits

2. Form I-485 Fee for Child Under 14, Filing With Parent

G. Continuing To Hold Refugee Travel Document Fee to the Department of State Passport Fee

H. Form I-131A, Carrier Documentation

I. Separating Form I-129, Petition for a Nonimmigrant Worker, Into Different Forms

1. Form I-129H1, Petition for Nonimmigrant Worker: H-1B or H-1B1 Classifications

2. Forms I-129H2A and I-129H2B, Petitions for H-2A and H-2B Workers

3. Form I-129L, Petition for Nonimmigrant Worker: L Classification

4. Form I-129O Petition for Nonimmigrant Worker: O Classification

5. Form I-129E&TN, Application for Nonimmigrant Worker: E and TN Classification

6. Form I-129MISC, Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification

7. Commonwealth of the Northern Mariana Islands (CNMI) Fees

J. Premium Processing

1. Change Premium Processing Fee by Guidance

2. Change Calendar Days to Business Days

3. Actions That End or Restart the 15-Day Period

4. Expedited Processing for Other Requests

K. Regional Centers

L. Secure Mail Initiative

M. Intercountry Adoptions

1. Adjustment to Proposed Fees for Certain Intercountry Adoption-Specific Forms

2. Clarification of Fee Exception for Birth Siblings

3. Suitability and Eligibility Approval Validity Period

4. Form I-600A/I-600 Supplement 3, Request for Action on Approved Form I-600A/I-600

a. Suitability & Eligibility Extensions

b. New Approval Notices

c. Change of Country

d. Hague Adoption Convention Transition Cases

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

N. Changes to Genealogy Search and Records Requests

O. Naturalization and Citizenship Related Forms

1. No Longer Limit the Form N-400 Fee

2. Remove Form N-400 Reduced Fee

3. Military Naturalization and Certificates of Citizenship

4. Proposed Changes to Other Naturalization-Related Application and Certificate of Citizenship Application Fees

P. Asylum Fees

1. Fee for Form I-589, Application for Asylum and for Withholding of Removal

2. Fee for the Initial Application for Employment Authorization While an Asylum Claim Is Pending

Q. DACA Renewal Fees

R. Fees Shared by CBP and USCIS

S. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas

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

U. Miscellaneous Technical and Procedural Changes

VI. Proposed Fee Adjustments to IEFA Immigration Benefits

VII. Other Possible Fee Scenarios

A. Fee Schedule With DACA Renewal Fees

B. Fee Schedule Without DACA Fees

C. Fee Schedule With Both DACA Initial and Renewal Fees

VIII. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Congressional Review Act

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Paperwork Reduction Act

H. National Environmental Policy Act

List of Acronyms and Abbreviations

ABC Activity-Based Costing

ASC Application Support Center

BLS Bureau of Labor Statistics

CAT Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment

CBP U.S. Customs and Border Protection

CEQ Council on Environmental Quality

CFO Chief Financial Officer

CNMI Commonwealth of the Northern Mariana Islands

CPI Consumer Price Index

CPI-U Consumer Price Index for All Urban Consumers

DACA Deferred Action for Childhood Arrivals

DHS Department of Homeland Security

DOD Department of Defense

DOJ Department of Justice

DOL Department of Labor

DOS Department of State

EAD Employment Authorization Document

EB-5 Employment-Based Immigrant Visa, Fifth Preference

EIN Employer Identification Number

EOIR Executive Office for Immigration Review

FBI Federal Bureau of Investigation

FY Fiscal Year

GAO Government Accountability Office

HHS U.S. Department of Health and Human Services

IEFA Immigration Examinations Fee Account

INA Immigration and Nationality Act of 1952

INS Immigration and Naturalization Service

IPO Investor Program Office

IOAA Independent Offices Appropriations Act

LIFE Act Legal Immigration Family Equity Act

LPR Lawful Permanent Resident

NACARA Nicaraguan Adjustment and Central American Relief Act

NAICS North American Industry Classification System

NBC National Benefits Center

NEPA National Environmental Policy Act

NOID Notice of Intent to Deny

NPRM Notice of Proposed Rulemaking

OIG DHS Office of the Inspector General

OMB Office of Management and Budget

OPQ Office of Performance and Quality

PRC Permanent Resident Card

RAIO Refugee, Asylum, and International Operations Directorate

RFE Request for Evidence

RFA Regulatory Flexibility Act

SAVE Systematic Alien Verification for Entitlements

SBA Small Business Administration

TPS Temporary Protected Status

TVPRA William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UAC Unaccompanied Alien Child

UMRA Unfunded Mandates Reform Act

USCIS U.S. Citizenship and Immigration Services

VPC Volume Projection Committee

I. Public Participation

DHS invites you to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments providing the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change.

Instructions:

All submissions should include the agency name and DHS Docket No. USCIS-2019-0010 for this rulemaking. Providing comments is entirely voluntary. Regardless of how you submit your comment, DHS will post all submissions, without change, to the Federal eRulemaking Portal at

http://www.regulations.gov

and will include any personal information you provide. Because the information you submit will be publicly available, you should consider limiting the amount of personal information in your submission. DHS may withhold information provided in comments from public viewing if it determines that such information is offensive or may affect the privacy of an individual. For additional information, please read the Privacy Act notice available through the link in the footer of

http://www.regulations.gov.

Docket:

For access to the docket, go to

http://www.regulations.gov

and enter this rulemaking's eDocket number: USCIS-2019-0010. The docket includes additional documents that support the analysis contained in this proposed rule to determine the specific fees that are proposed. These documents include:

• Fiscal Year (FY) 2019/2020 Immigration Examinations Fee Account Fee Review Supporting Documentation;

• Regulatory Impact Analysis: U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements; and

• Small Entity Analysis for Adjustment of the U.S. Citizenship and Immigration Services Fee Schedule notice of proposed rulemaking (NPRM).

You may review these documents on the electronic docket. The software

used to compute the immigration benefit request fees

and biometric fees

is a commercial product licensed to USCIS that may be accessed on-site, by appointment, by calling (202) 272-1969.

USCIS uses commercially available activity-based costing (ABC) software, SAP Business Objects Profitability and Cost Management, to create financial models as described in the supporting documentation.

Benefit request means any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit, whether such request is filed on a paper form or submitted in an electronic format, provided such request is submitted in a manner prescribed by DHS for such purpose.

See

8 CFR 1.2.

DHS uses the terms biometric fees, biometric services fees, and biometric fee synonymously in this rule to describe the cost and process for capturing, storing, or using biometrics.

This proposed rule describes key inputs to the ABC model (for example, budget, workload forecasts, staffing, and completion rates), both here and in the supporting documentation.

II. Executive Summary

DHS proposes to adjust the USCIS fee schedule, which specifies the fee amount charged for each immigration and naturalization benefit request.

DHS last adjusted the fee schedule on December 23, 2016, by a weighted average increase of 21 percent.

See

81 FR 73292 (Oct. 24, 2016) (final rule) (FY 2016/2017 fee rule).

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, Deferred Action for Childhood Arrivals (DACA) is solely an exercise of prosecutorial discretion by DHS. It is not an immigration benefit and would fit under the definition of “benefit request” solely for purpose 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.

USCIS is primarily funded by immigration and naturalization benefit request fees charged to applicants and

petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants. The focus of this fee review is the IEFA, which comprised approximately 95 percent of USCIS' total FY 2018 enacted spending authority.

In accordance with the requirements and principles of the Chief Financial Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03 and Office of Management and Budget (OMB) Circular A-25, USCIS conducts biennial reviews of the non-statutory fees deposited into the IEFA. If necessary, DHS proposes fee adjustments to ensure full cost recovery. USCIS completed a fee review for the FY 2019/2020 biennial period. The primary objective of the fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund the anticipated operating costs associated with administering the nation's legal immigration system. The results indicate that current fee levels are insufficient to recover the full cost of operations funded by the IEFA. Therefore, DHS proposes to adjust USCIS fees by a weighted average increase of 21 percent.

In addition to the requirements of the CFO Act, there are other important reasons for conducting the FY 2019/2020 fee review. The fee review:

• Allows for an assessment of USCIS policy changes, staffing levels, costs, revenue, etc. USCIS evaluates operational requirements and makes informed decisions concerning program scaling, resource planning, and staffing allocations; and

• Provides those served by USCIS with an opportunity to assess the effect of fee changes.

USCIS calculates its fees to recover the full cost of operations funded by the IEFA. These costs do not include limited appropriations provided by Congress. If USCIS continues to operate at current fee levels, it would experience an average annual shortfall (the amount by which expenses exceed revenue) of $1,262.3 million. This projected shortfall poses a risk of degrading USCIS operations funded by the IEFA. As such, DHS proposes to adjust USCIS fees by a 21 percent weighted average increase to ensure full cost recovery. The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit request.

This rule refers to weighted average instead of straight average because the figure represents a more accurate depiction of the overall effect that the proposed fee increase would have on total fee revenue.

USCIS uses weighted average instead of a straight average because of the difference in volume by immigration benefit type and the resulting effect on fee revenue. The 21 percent weighted average increase is a change in the average fee for a form that currently requires a fee compared to the average proposed fee per form. The sum of the current fees multiplied by the projected FY 2019/2020 fee-paying receipts for each immigration benefit type, divided by the total fee-paying receipts = $530. The sum of the proposed fees multiplied by the projected FY 2019/2020 receipts for each immigration benefit type, divided by the fee-paying receipts = $640. There is a $110, or approximately 21 percent difference between the two averages. These averages exclude fees that do not receive cost reallocation, such as the separate biometric services fee and the proposed Form I-821D fee.

The proposed fees would ensure that IEFA revenue covers USCIS' costs associated with adjudicating the immigration benefit requests. The proposed fee schedule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries. DHS also proposes to change fee waiver and fee exemption policies to limit some fee increases. Additionally, DHS proposes to establish multiple fees for different categories of petitions for nonimmigrant workers in response to DHS Office of Inspector General (OIG) audit recommendations to USCIS. DHS proposes a range of fees that vary by the nonimmigrant classification and to limit petitions for nonimmigrant workers to 25 named beneficiaries. DHS believes the proposed fees more accurately reflect the differing burdens of adjudication and enable USCIS to adjudicate these petitions more effectively.

In addition to fee changes, this proposed rule would also make changes in the forms and fee structures used by USCIS. Some of these changes would result in cost savings, and others would result in costs or transfers. For the 10-year implementation period of the proposed rule, DHS estimates the total cost of the rule to applicants/petitioners is $4,730,732,250 undiscounted, $4,035,410,566 discounted at 3-percent, and $3,322,668,371 discounted at 7-percent. DHS estimates the total cost savings (benefits) to the applicants/petitioners is $220,187,510 undiscounted, $187,824,412 discounted at 3-percent, and $154,650,493 discounted at 7-percent. Much of this total is expected to be transfers between applicants and the federal government or between groups of applicants, rather than new, real resource costs to the U.S. economy.

A. Effective Date

The FY 2019/2020 fee review assumes these changes may affect the second year of the biennial period, as FY 2020 began on October 1, 2019.

III. Basis for the Fee Review

A. Legal Authority and Guidance

DHS issues this proposed rule consistent with 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 CFO Act, 31 U.S.C. 901-03 (requiring each agency's Chief Financial Officer (CFO) to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency's fees).

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

This proposed rule is also consistent with non-statutory guidance on fees, the budget process, and federal accounting principles.

See

OMB Circular A-25, available at

https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf,

58 FR 38142 (July 15, 1993) (establishing federal policy guidance regarding fees assessed by federal agencies for government services); Federal Accounting Standards Advisory Board Handbook, Version 17 (06/18), Statement of Federal Financial Accounting Standards 4: Managerial Cost Accounting Standards and Concepts, SFFAS 4, available at

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

(generally describing cost accounting concepts and standards, and defining “full cost” to mean the sum of direct and indirect costs that contribute to the output, including the costs of supporting services provided by other segments and entities.);

id.

at 49-66 (identifying various classifications of costs to be included and recommending various methods of cost assignment);

see also King

Burwell,

135 S. Ct. 2480, 2489 (2015) (“[O]ftentimes the `meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.' So when deciding whether the language is plain, we must read the words `in their context and with a view to their place in the overall statutory scheme.' ” (quoting

FDA

Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132-33 (2000))).

Consistent with the historical position, this proposed rule would set fees at a level that ensures recovery of the full operating costs of USCIS, the entity within DHS that provides almost all immigration adjudication and naturalization services.

See

Homeland Security Act of 2002, Public Law 107-

296, sec. 451, 116 Stat. 2142 (Nov. 26, 2002) (6 U.S.C. 271). The statute authorizes recovery of the full costs of providing immigration adjudication and naturalization services. Congress has historically relied on this authority to support the vast majority of USCIS programs and operations conducted as part of adjudication and naturalization service delivery. This conclusion is supported by Congress' historical appropriations to USCIS. The agency receives only a small annual appropriation. USCIS must use other means to fund, as a matter of both discretion and necessity, all other operations.

Certain functions, including the Systematic Alien Verification for Entitlements (SAVE) program

and the Office of Citizenship,

which USCIS has administered since DHS's inception, are integral parts of fulfilling USCIS' statutory responsibility to provide immigration adjudication and naturalization services. They are not associated with specific fees examined during the biennial fee review, but may be funded by the IEFA. Similarly, when a filing fee for an immigration benefit request such as Temporary Protected Status (TPS) is capped by statute at $50 and does not cover the cost of adjudicating these benefit requests, DHS may recover the difference with fees charged to other immigration benefit requests.

See

INA section 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B); 8 CFR 103.7(b)(1)(i)(NN); proposed 8 CFR 106.2(a)(37)(i). Finally, when DHS exempts certain benefit requests from filing or visa fees, such as, for example, applications or petitions from victims who assist law enforcement in the investigation or prosecution of acts of human trafficking (T nonimmigrant status) or certain other crimes (U nonimmigrant status), USCIS recovers the cost of processing those fee-exempt visas with fees charged to other applicants and petitioners.

See, e.g.,

8 CFR 103.7(b)(1)(i)(UU)-(VV); proposed 8 CFR 106.2(a)(46)-(47).

USCIS funds the SAVE program by user fees and IEFA funds, as Congress has not provided any direct appropriated funds for the program since FY 2007. SAVE provides an “immigration adjudication . . . service” under INA sections 286(m) and (n) to Federal, state and local agencies who require immigration adjudication information in administering their benefits.

The Homeland Security Act created the Office of Citizenship at the same time as several other mission essential USCIS offices, such as those for legal, budget, and policy. Like those offices, the Office of Citizenship has always been considered an essential part of the “adjudication and naturalization services” USCIS provides under sections 286(m) and (n) of the INA. An integral part of providing such services, as Congress recognized in creating the Citizenship office in section 451(f) of the Homeland Security Act (6 U.S.C. 271(f)), includes providing information to potential applicants for naturalization regarding the process of naturalization and related activities.

In short, the full cost of USCIS operations cannot be as directly correlated or connected to a specific fee as OMB Circular A-25 advises. Nonetheless, DHS follows OMB Circular A-25 to the extent appropriate, including directing that fees should be set to recover the costs of an agency's services in their entirety and that full costs are determined based upon the best available records of the agency.

Id.

DHS applies the discretion provided in INA section 286(m), 8 U.S.C. 1356(m), to: (1) Use Activity-Based Costing (ABC) to establish a model for assigning costs to specific benefit requests in a manner reasonably consistent with OMB Circular A-25; (2) distribute costs that are not attributed to, or driven by, specific adjudication and naturalization services;

and (3) make additional adjustments to effectuate specific policy objectives.

The ABC model distributes indirect costs. Costs that are not assigned to specific fee-paying immigration benefit requests are reallocated to other fee-paying immigration benefit requests outside the model. For example, the model determines the direct and indirect costs for refugee workload. The costs associated with processing the refugee workload are reallocated outside the model to fee-paying immigration benefit requests.

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

See FCC

Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009);

Motor Vehicle Mfrs. Ass'n

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983).

By approving DHS's annual appropriations, which provide limited appropriated funds to USCIS, Congress has consistently recognized that the “full” costs of operating USCIS, including SAVE and the Office of Citizenship, less any appropriated funding, is the appropriate cost basis for establishing IEFA fees. Nevertheless, in each biennial fee review, DHS adds refinements to its determination of immigration benefit fees, including the level by which fees match directly assignable, associated, and indirect costs.

C. Immigration Examinations Fee Account

USCIS manages three fee accounts:

• The IEFA (includes premium processing revenues),

INA sec. 286(m), (n) & (u); 8 U.S.C. 1356(m), (n) & (u).

• The Fraud Prevention and Detection Account,

and

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

• The H-1B Nonimmigrant Petitioner Account.

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

In 1988, Congress established the IEFA in the Treasury of the United States.

See

Public Law 100-459, sec. 209, 102 Stat. 2186 (Oct. 1, 1988) (codified as amended at INA sections 286(m) and (n), 8 U.S.C. 1356(m) and (n)). Fees deposited into the IEFA fund the provision of immigration adjudication and naturalization services. In subsequent legislation, Congress directed that the IEFA also fund the full costs of providing all such services, including services provided to immigrants at no charge.

See

Public Law 101-515, sec. 210(d)(1) and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). Consequently, the immigration benefit fees were increased to recover these additional costs.

See

59 FR 30520 (June 14, 1994). The IEFA comprised approximately 95 percent of total funding for USCIS in FY 2018 and is the focus of this proposed rule.

The Fraud Prevention and Detection Account and H-1B Nonimmigrant Petitioner Account are both funded by statutorily set fees. DHS has no authority to adjust fees for these accounts.

D. Fee Review History

Most recently, DHS published a revised USCIS fee schedule in its FY 2016/2017 fee rule.

See

81 FR 73292 (Oct. 24, 2016).

The rule and associated fees became effective on December 23, 2016. DHS adjusted the USCIS immigration benefits fee schedule for the first time in more than 6 years, increasing fees by a weighted average of 21 percent. The fee schedule adjustment recovered all projected costs for FY 2016-2017, including the Refugee, Asylum, and International Operations Directorate (RAIO), SAVE, and the Office of Citizenship.

See

81 FR 26911 and 73293.

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

The fee schedule had been adjusted previously as well. Before the creation of DHS, the Department of Justice (DOJ) Immigration and Naturalization Service (INS)

adjusted fees incrementally in 1994.

See

59 FR 30520 (June 14, 1994).

DOJ conducted a comprehensive fee review using activity-based costing (ABC) and adjusted most IEFA fees in 1998.

See

63 FR 1775 (Jan. 12, 1998) (proposed rule); 63 FR 43604 (Aug. 14, 1998) (final rule). DOJ adjusted fees for small volume workloads in 2000.

See

64 FR 26698 (May 17, 1999) (proposed rule); 64 FR 69883 (Dec. 15, 1999) (final rule). DOJ adjusted fees by inflation in 2002.

See

66 FR 65811 (Dec. 21, 2001). Following the creation of DHS, it adjusted fees in 2004 and 2005.

See

69 FR 20528 (Apr. 15, 2004); 70 FR 56182 (Sept. 26, 2005). After those incremental changes, DHS published a comprehensive FY 2007 fee rule.

See

72 FR 29851 (May 30, 2007). DHS further amended USCIS fees in the FY 2010/2011 fee rule.

See

75 CFR 58962 (Sept. 24, 2010). This rule removed the costs of the RAIO Directorate, SAVE, and the Office of Citizenship from the fee schedule, in anticipation of appropriations from Congress that DHS requested.

See

75 FR 58961, 58966. These resources did not fully materialize, requiring USCIS to use other fee revenue to support the programs in the FY 2016/2017 fee rule.

See

81 FR 26910-12.

The Homeland Security Act of 2002 abolished the INS and transferred the INS's immigration administration and enforcement responsibilities from DOJ to DHS. The INS's immigration and citizenship services functions were specifically transferred to the Bureau of Citizenship and Immigration Services, later renamed U.S. Citizenship and Immigration Services.

See

Public Law 107-296, 451 (6 U.S.C. 271).

The supporting documentation accompanying this proposed rule in the rulemaking docket at

www.regulations.gov

contains a historical fee schedule that shows the immigration benefit fee history since October 2005.

Table 1 summarizes the IEFA and biometric services fee schedule that took effect on December 23, 2016. DHS is proposing to change the current fee schedule as a result of the FY 2019/2020 fee review. The table excludes statutory fees that DHS cannot adjust or can only adjust by inflation.

Table 1—Non-Statutory IEFA Immigration Benefit Request Fees

Form No.

Title

Fee

G-1041

Genealogy Index Search Request

$65

G-1041A

Genealogy Records Request

I-90

Application to Replace Permanent Resident Card

455

I-102

Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

445

I-129/129CW

Petition for a Nonimmigrant Worker

460

I-129F

Petition for Alien Fiancé(e)

535

I-130

Petition for Alien Relative

535

I-131

Application for Travel Document

575

I-131A

Application for Carrier Documentation

575

I-140

Immigrant Petition for Alien Worker

700

I-191

Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)

930

I-192

Application for Advance Permission to Enter as Nonimmigrant

930/585

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

930

I-290B

Notice of Appeal or Motion

675

I-360

Petition for Amerasian, Widow(er), or Special Immigrant

435

I-485

Application to Register Permanent Residence or Adjust Status

1,140

I-485

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

750

I-526

Immigrant Petition by Alien Entrepreneur

3,675

I-539

Application to Extend/Change Nonimmigrant Status

370

I-600

Petition to Classify Orphan as an Immediate Relative

775

I-600A

Application for Advance Processing of an Orphan Petition

775

I-601

Application for Waiver of Grounds of Inadmissibility

930

I-601A

Application for Provisional Unlawful Presence Waiver

630

I-612

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

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

715

I-694

Notice of Appeal of Decision under Section 210 or 245A

890

I-698

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

1,670

I-751

Petition to Remove the Conditions of Residence

595

I-765

Application for Employment Authorization

410

I-800

Petition to Classify Convention Adoptee as an Immediate Relative

775

I-800A

Application for Determination of Suitability to Adopt a Child from a Convention Country

775

I-800A Supp. 3

Request for Action on Approved Form I-800A

385

I-817

Application for Family Unity Benefits

600

I-824

Application for Action on an Approved Application or Petition

465

I-829

Petition by Entrepreneur to Remove Conditions on Permanent Resident Status

3,750

I-881

Application for Suspension of Deportation or Special Rule Cancellation of Removal

285/570

I-910

Application for Civil Surgeon Designation

785

I-924

Application for Regional Center Designation Under the Immigrant Investor Program

17,795

I-924A

Annual Certification of Regional Center

3,035

I-929

Petition for Qualifying Family Member of a U-1 Nonimmigrant

230

I-941

Application for Entrepreneur Parole

1,200

N-300

Application to File Declaration of Intention

270

N-336

Request for a Hearing on a Decision in Naturalization Proceedings

700

N-400

Application for Naturalization

640

N-400

Application for Naturalization (Reduced Fee)

320

N-470

Application to Preserve Residence for Naturalization Purposes

355

N-565

Application for Replacement Naturalization/Citizenship Document

555

N-600

Application for Certification of Citizenship

1,170

N-600K

Application for Citizenship and Issuance of Certificate Under Section 322

1,170

USCIS Immigrant Fee

220

Biometric Services Fee

IV. FY 2019/2020 Immigration Examinations Fee Account Fee Review

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 website. The term “Form” followed by an immigration form number includes an approved electronic equivalent of such form as made available by USCIS on its official internet website.

See

8 CFR 1.2 and 299.1. 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 Convention relating to the Status of Refugees) guide the Application for Travel Document fees for a Refugee Travel Document. The USCIS ABC model does not set these fees.

See

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

) and (

Form I-191 was previously titled Application for Advance Permission to Return to Unrelinquished Domicile.

See

8 CFR 103.7(b)(1)(i)(O).

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

See

8 CFR 103.7(b)(1)(i)(P).

This reduced fee is applied to “an applicant under the age of 14 years when [the application] is (i) submitted concurrently with the Form I-485 of a parent, (ii) the applicant is seeking to adjust status as a derivative of his or her parent, and (iii) the child's application is based on a relationship to the same individual who is the basis for the child's parent's adjustment of status, or under the same legal authority as the parent.” 8 CFR 103.7(b)(1)(i)(U)(

The form's name in the current fee provision at 8 CFR 103.7(b)(1)(i)(GG) is “Application to Adjust Status from Temporary to Permanent Resident (Under section 245A of Public Law 99-603).”

Currently there are two USCIS fees for Form I-881: $285 for individuals and $570 for families.

See

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

). DOJ's Executive Office for Immigration Review (EOIR) has a separate $165 fee.

USCIS excluded Form I-941, Application for Entrepreneur Parole, from the FY 2019/2020 fee review. As such, it will not appear in tables for workload, fee-paying volume, or elsewhere in this NPRM. DHS published a separate NPRM that proposed to terminate the program.

See

83 FR 24415 (June 28, 2018). DHS does not propose any changes to this fee.

A. USCIS Projected Costs and Revenue

The primary objective of the fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund anticipated operating costs associated with administering USCIS' role in the nation's legal immigration system. USCIS examines its recent budget history, service levels, and immigration trends to forecast costs, revenue, and operational metrics. This data helps USCIS identify the difference between anticipated costs and revenue as well as calculate proposed fees. The FY 2019/2020 fee review encompasses three core elements:

• Cost projections;

• Revenue projections; and

• Cost and revenue differential (the difference between cost and revenue projections).

1. Cost Projections

USCIS' FY 2018 annual operating plan (AOP) is the basis for the FY 2019/2020 cost projections. These estimates reflect the funding necessary to maintain an adequate level of operations and do not include program increases for new development, modernization, or acquisition. Cost projections also include funding for enhancements that facilitate the processing of additional workload. Examples of items in the cost projections include:

•

Transfer of funding to U.S. Immigration and Customs Enforcement ($207.6 million in FY 2019 and FY 2020).

This item is explained in section IV.A.1.a., Use IEFA Fee Collections to Fund Immigration Adjudication Services Performed by ICE.

•

Pay and benefits adjustments for on-board staff ($280.2 million in FY 2019 and $89.8 million in FY 2020).

Pay adjustments account for cost of living adjustments, within-grade pay increases, and the annualization of prior-year vacancies. The government-wide cost of living adjustment rate assumption is 2.0 percent for both FY 2019 and FY 2020. Within-grade pay increases are routine raises awarded to general schedule employees, based on length of service and performance at an acceptable level of competence. Annualization of prior-year vacancies account for a full-year cost of salaries and benefits for positions that were on-board for only a portion of FY 2018.

•

Pay and benefits for new staff ($116.7 million in FY 2019 and $128.8 million in FY 2020).

Projected FY 2019 and FY 2020 workloads exceed current workload capacity, thereby requiring additional staff. The FY 2018 Staffing Allocation Model

and new staff enhancement requests yield an additional 2,098 positions necessary to meet adjudicative processing goals and other USCIS mission objectives, including administrative functions. In total, the FY 2016/2017 fee rule assumed a total authorized staffing level of 14,543, whereas estimates used for this proposed rule reflect 20,958. This represents an increase of 6,415 or 44 percent. This additional staffing requirement reflects the facts that it takes USCIS longer to adjudicate many workloads than was planned for in the FY 2016/2017 fee rule and that workload volumes, particularly for work types that do not currently generate fee revenue, have grown.

The Staffing Allocation Model is a Microsoft Excel-based workforce planning tool that estimates the staffing requirements necessary to adjudicate workload receipt (for example, applications and petitions) forecasts at target processing times.

•

Net additional costs ($150.8 million in FY 2019 and $6.2 million in FY 2020).

In addition to non-pay general expenses associated with on-boarding the new staff described above, these costs include other enhancement requests such as secure mail shipping for permanent resident cards, increased background investigations, headquarters consolidation, etc. The additional resources are to sustain current operations necessary for achieving USCIS' strategic goals. USCIS considered all cost data that was available at the time it conducted this fee review, including data on cost-saving measures. It does not account for recent cost-savings initiatives for which data were not yet available at the time of this fee review. However, USCIS intends to fully evaluate and capture any relevant cost-savings data during its next biennial fee review.

Table 2 is a crosswalk summary of the FY 2018 AOP to the FY 2019/2020 cost projections. It accounts for pay and non-pay general expenses for on-board and new staff, other resource requirements or adjustments, and the removal of costs associated with temporary programs such as TPS. FY 2019 cost projections are 20 percent higher than FY 2018 costs. FY 2020 cost projections are 5 percent higher than FY 2019 cost projections. The FY 2019/2020 average annual budget is $4,670.5 million. This represents a $1,632.5 million, or 54 percent, increase over the FY 2016/2017 fee rule average annual budget of $3,038.0 million. The primary cost driver is payroll, which accounts for 30.9 percent of the increase from the prior fee rule average annual budget.

The funding transfer to ICE accounts for about 6 percentage points (

i.e.,

28.5 percent) of the 21 percent total weighted average fee increase.

Table 2—Cost Projections

[FY 2019/2020 fee review IEFA non-premium budget (in millions)]

Total Base FY 2018 IEFA Non-Premium Budget

$3,585.6

Plus: Spending Adjustments

217.2

Total Adjusted FY 2018 IEFA Non-Premium Budget

3,802.8

Plus: Transfer to ICE

207.6

Plus: Pay Inflation and Promotions/Within Grade Increases

280.2

Plus: Net Additional Costs

267.5

Total Adjusted FY 2019 IEFA Non-Premium Budget

4,558.1

Plus: Pay Inflation and Promotions/Within Grade Increases

218.6

Plus: Net Additional Costs

6.2

Total Adjusted FY 2020 IEFA Non-Premium Budget

4,782.9

FY 2019/2020 Average Non-Premium Budget

4,670.5

a. Use IEFA Fee Collections To Fund Immigration Adjudication Services Performed by ICE

The President's FY 2019 and FY 2020 budget requests include a $207.6 million transfer of IEFA funds to ICE. DHS proposes to use USCIS fees to recover the full amount of this proposed transfer.

For additional information on ICE's FY 2019 costs, see pages 46 and 254-263 (called ICE—O&S-20 and ICE—IEFA-1-10, respectively, in the presentation) of the DHS ICE FY 2019 Congressional Justification located at

https://www.dhs.gov/sites/default/files/publications/U.S.%20Immigration%20and%20Customs%20Enforcement.pdf

. For information of ICE's FY 2020 costs, see pages 261-270 (called ICE—IEFA-3) of the DHS ICE FY 2020 Congressional Justification located at

https://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_CBJ-Immigration-Customs-Enforcement_0.pdf

DHS may use fees deposited into the IEFA to fund the expenses of providing immigration adjudication and naturalization services and the cost of collection, safeguarding, and accounting for the IEFA funds.

See

INA section 286(m), 8 U.S.C. 1356(m). Funds deposited into the IEFA are primarily used by USCIS, but they may also be used to reimburse other DHS components, including ICE, for qualifying costs. DHS proposes to recover, via USCIS' fee schedule, the full amount of the proposed transfer from past budget requests.

See

INA section 286(n); 8 U.S.C. 1356(n). DHS will transfer funds annually from the IEFA to ICE's appropriations so as to reimburse those appropriations for the cost of providing qualifying services, which will increase the level of service provided beyond current levels.

DHS “immigration adjudication and naturalization services” do not end with a decision to approve or deny a request. USCIS and ICE, as components of DHS, share a responsibility to ensure the integrity of the U.S. immigration system beyond the moment of adjudication. DHS believes that ICE investigations of potential immigration fraud perpetrated by individuals and entities who have sought immigration benefits before USCIS and efforts to enforce applicable immigration law and regulations with regard to such individuals and entities constitute direct support of immigration adjudication and naturalization services. Thus, the IEFA may fund ICE enforcement and support positions, as well as ancillary costs, to the extent that such positions and costs support immigration adjudication and naturalization services. ICE HSI could use funds transferred from the IEFA to support investigations of immigration benefit fraud via Document and Benefit Fraud Task Forces (DBFTFs), Operation Janus, and the HSI National Lead Development Center. DBFTFs facilitate information sharing and coordination among ICE, USCIS, other federal entities, as well as state and local law enforcement for the purpose of investigating document and benefit fraud in support of immigration and naturalization services. Operation Janus is a joint initiative including USCIS and ICE to ensure that individuals who have a previous order of removal have not and will not be able to fraudulently obtain immigration benefits under an alternate identity, thus ensuring the integrity of the immigration adjudication and naturalization services provided by USCIS. The HSI National Lead Development Center will receive referrals and review investigative leads as part of investigations into immigration fraud. Considering what constitutes immigration adjudication and naturalization services and collection, safeguarding, and accounting expenses under INA sections 286(m), (n), 8 U.S.C. 1356(m), (n), adjudication and naturalization services includes all costs for work related to determining or adjudicating whether applicants may receive such services. The cost of the services provided includes the cost of any investigatory work necessary to adjudicate applications or provide services, including investigations of fraud. Therefore, these activities constitute support of immigration adjudication and naturalization services.

Moreover, while transfers between appropriations are generally prohibited absent statutory authority, INA section 286(n), 8 U.S.C. 1356(n), expressly authorizes the use of the fees deposited in the IEFA to reimburse any appropriation for expenses in providing immigration adjudication and naturalization services. DHS has determined that the IEFA may be used to reimburse appropriations that fund enforcement and support positions to the extent that such positions support adjudication and naturalization services. Therefore, DHS proposes to recover the costs through the USCIS fee schedule. To see how the ICE transfer affects proposed fees, see section VII. Other Possible Fee Scenarios in this preamble.

The Administration has notified Congress of its intention to shift the cost of these ICE activities from annual appropriations to IEFA. See previous footnotes. If Congress rejects the Administration's proposal, or if DHS does not ultimately shift these costs from annual appropriations to IEFA, USCIS will not include this use of these funds in its fee model for the final rule.

The aforementioned cost projections serve as the basis for the additional ICE revenue of $207.6 million covered by this rule. DHS recognizes that the

$207.6 million previously identified in budget requests may propose to transfer more funding to ICE than is needed to fund activities that are reimbursable through the IEFA. DHS continues to study which ICE costs would be reimbursable through the IEFA, and may announce more precise cost estimates prior to publication of a final rule. To the extent that such cost estimates are lower than the $207.6 million figure currently accounted for in the rule, fee levels would be revised downward.

The possible effects of a different level of ICE costs to be funded by USCIS benefit request fees is discussed further in VII. Other Possible Fee Scenarios.

DHS proposes to establish all USCIS fees at a level necessary to recover the full amount of this proposed transfer. However, in the final rule, DHS may establish a separate surcharge for the amount necessary to recover the estimated funds to be transferred to ICE. The surcharge would be separately codified, but collected along with the fee for each benefit request for which a fee is established in the final rule. DHS encourages comments on the method used to recover the ICE adjudication and naturalization service costs.

2. Revenue Projections

USCIS' revenue projections are informed by internal immigration benefit request receipt forecasts and 12 months of historical actual fee-paying receipts to account for fee-waiver/fee-exemption trends. USCIS uses actual revenue collections from June 2016 to May 2017 as a basis for the fee-paying assumptions in the FY 2019/2020 revenue projections.

USCIS' current fee schedule is expected to yield $3.41 billion of average annual revenue during the FY 2019/2020 biennial period. This represents a $0.93 billion, or 38 percent, increase from the FY 2016/2017 fee rule projection of $2.48 billion.

See

81 FR 26911. The projected revenue increase is due to higher fees as a result of the FY 2016/2017 fee rule and more anticipated fee-paying receipts. The FY 2016/2017 fee rule forecasted 5,870,989 total workload receipts and 5,140,415 fee-paying receipts.

See

81 FR 26923-4. However, the FY 2019/2020 fee review forecasts 9,336,015 total workload receipts and 7,789,861 fee-paying receipts. This represents a 59 percent increase to workload and 52 percent increase to fee-paying receipt volume assumptions. Despite the increase in projected revenue above the FY 2016/2017 fee rule projection, this additional revenue is insufficient to recover USCIS' increased costs, as discussed in the next section.

3. Cost and Revenue Differential

USCIS identifies the difference between anticipated costs and revenue, assuming no changes in fees, to determine whether the existing fee schedule is sufficient to recover full costs or whether a fee adjustment is necessary. Table 3 summarizes the projected cost and revenue differential. Summary values may vary due to rounding.

Table 3—IEFA Non-Premium Cost and Revenue Comparison

[Dollars in millions]

Fiscal year

FY 2019

FY 2020

FY 2019/2020 average

Non-Premium Revenue

$3,408.2

Non-Premium Budget

4,558.1

4,782.9

4,670.5

Difference

−1,149.9

−1,374.7

−1,262.3

Historically, and for the purpose of the fee review, USCIS reports costs and revenue as an average over the 2-year period. In Table 3, FY 2019 and 2020 costs and revenue are averaged to determine the projected amounts to be recovered through this rule. Based on current immigration benefit and biometric services fees and projected volumes, USCIS expects fees to generate $3.41 billion in average annual revenue in FY 2019 and FY 2020. For the same period, the average annual cost of processing those immigration benefit requests and providing biometric services is $4.67 billion. This yields an average annual deficit of $1.26 billion. In other words, USCIS expects projected FY 2019/2020 total operating costs to exceed projected total revenue.

Because projected costs are higher than projected revenue, USCIS has several options to address the shortfall:

1. Reduce projected costs;

2. Use carryover funds or revenue from the recovery of prior year obligations; or

3. Adjust fees with notice and comment rulemaking.

DHS believes that reducing the projected costs to equal the projected revenue would risk degrading USCIS operations funded by the IEFA. However, DHS did assess several possible fee review budgets. For example, the effect of the $207.6 million transfer from USCIS to ICE is shown below in section VII. Other Possible Fee Scenarios. Projected carryover is negative in both FY 2019 and FY 2020 and thus eliminating this transfer is insufficient to bridge the gap between projected costs and revenue.

Likewise, USCIS estimates that recovered revenue from prior year obligations will be insufficient. USCIS estimates that it may recover $91.9 million in FY 2019 and $94.2 million in FY 2020 for the non-premium IEFA. Therefore, DHS proposes to increase revenue through the fee adjustments described in detail throughout this rule.

In the docket for this proposed rule, the FY 2019/2020 Immigration Examinations Fee Account Fee Review Supporting Documentation has more information. See the section titled IEFA Non-Premium Carryover Projections & Targets.

B. Methodology

When conducting a fee review, USCIS reviews its recent operating environment to determine the appropriate method to assign costs to immigration benefit requests, including biometric services. USCIS uses activity-based costing (ABC), a business management tool that assigns resource costs to operational activities and then to products and/or services. USCIS uses commercially available ABC software to create financial models. These models determine the cost of each major step towards processing immigration benefit requests and providing biometric services. This is the same methodology that USCIS used in the last five fee reviews, and it is the basis for the current fee structure. Following the FY 2016/2017 fee rule, USCIS identified several key methodology changes to improve the accuracy of its ABC model.

Please refer to the Methodology Changes Implemented in the FY 2019/2020 Fee Review section of the Supporting Documentation located in the docket of this rule.

1. Volume

USCIS uses two types of volume data in the fee review: Workload and fee-paying volume. Workload volume is a projection of the total number of immigration benefit requests that USCIS will receive in a fiscal year. Fee-paying volume is a projection of the number of applicants, petitioners, and requestors that will pay a fee when filing requests for immigration benefits. Not all applicants, petitioners, or requestors pay a fee. Those applicants, petitioners, and requestors for whom USCIS grants a fee waiver or to whom an exemption applies are represented in the workload volume, but not the fee-paying volume. Applicants, petitioners, and requestors who pay a fee fund the cost of processing requests for fee-waived or fee-exempt immigration benefit requests.

a. Workload Volume and Volume Projection Committee

USCIS uses statistical modeling, immigration receipt data from the last 15 years, and internal assessments of future developments (such as annualized data prepared by the USCIS Office of Performance and Quality) to develop workload volume projections. All relevant USCIS directorates and program offices are represented on the USCIS Volume Projection Committee (VPC). The VPC forecasts USCIS workload volume using subject matter expertise from various directorates and program offices, including the Service Centers, National Benefits Center, RAIO, and regional, district, and field offices. Input from these offices helps refine the volume projections. The VPC reviews short- and long-term volume trends. In most cases, time series models provide volume projections by form type. Time series models use historical receipts data to determine patterns (such as level, trend, and seasonality) or correlations with historical events to forecast receipts. When possible, models are also used to determine relationships between different benefit request types. Workload volume is a key element used to determine the USCIS resources needed to process benefit requests within established adjudicative processing goals. It is also the primary cost driver for assigning activity costs to immigration benefits and biometric services

in the USCIS ABC model.

As fully explained later in this preamble, DHS is removing biometric services as a separate fee in this rule, except as associated with an Application for Temporary Protected Status and certain other programs. Accordingly, N/A is included in the average annual FY 2019/2020 projected workload receipts and difference columns for biometrics in Table 4.

Table 4—Workload Volume Comparison

Immigration benefit request

Average annual

FY 2016/2017 projected

workload receipts

Average annual

FY 2019/2020 projected

workload receipts

Difference

I-90 Application to Replace Permanent Resident Card

810,707

767,020

−43,687

I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

10,143

7,700

−2,443

I-129 Petition for a Nonimmigrant Worker Subtotal

432,156

553,266

121,110

I-129H1

N/A

423,304

N/A

I-129H2A—Named Beneficiaries

N/A

3,962

N/A

I-129H2B—Named Beneficiaries

N/A

2,256

N/A

I-129L

N/A

41,502

N/A

I-129O

N/A

25,456

N/A

I-129CW, I-129E&TN, and I-129MISC

N/A

43,491

N/A

I-129H2A—Unnamed Beneficiaries

N/A

8,981

N/A

I-129H2B—Unnamed Beneficiaries

N/A

4,315

N/A

I-129F Petition for Alien Fiancé(e)

45,351

52,000

6,649

I-130 Petition for Alien Relative

911,349

984,107

72,758

I-131/I-131A Application for Travel Document Subtotal

256,622

480,834

224,212

I-131 Application for Travel Document

N/A

449,073

N/A

I-131 Refugee Travel Document for an individual age 16 or older

N/A

20,714

N/A

I-131 Refugee Travel Document for a child under the age of 16

N/A

1,248

N/A

I-131A Application for Carrier Documentation

N/A

9,799

N/A

I-140 Immigrant Petition for Alien Worker

88,602

161,000

72,398

I-290B Notice of Appeal or Motion

24,706

24,050

−656

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

26,428

42,873

16,445

I-485 Application to Register Permanent Residence or Adjust Status

593,717

632,500

38,783

I-526 Immigrant Petition by Alien Entrepreneur

14,673

14,000

−673

I-539 Application to Extend/Change Nonimmigrant Status

172,001

231,000

58,999

I-589 Application for Asylum and for Withholding of Removal

N/A

163,000

N/A

I-600/600A; I-800/800A Intercountry Adoption-Related Petitions and Applications

15,781

11,776

−4,005

I-600A/I-600 Supplement 3 Request for Action on Approved Form I-600A/I-600

N/A

1,500

N/A

I-601A Provisional Unlawful Presence Waiver

42,724

67,000

24,276

I-687 Application for Status as a Temporary Resident

−18

I-690 Application for Waiver of Grounds of Inadmissibility

I-694 Notice of Appeal of Decision

−29

I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA)

100

I-751 Petition to Remove Conditions on Residence on Permanent Resident Status

173,000

156,000

−17,000

I-765 Application for Employment Authorization

747,825

2,851,000

2,103,175

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

1,585

1,500

−85

I-817 Application for Family Unity Benefits

2,069

1,400

−669

I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal)

N/A

396,000

N/A

I-824 Application for Action on an Approved Application or Petition

10,921

11,303

382

I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status

3,562

3,500

−62

I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

N/A

340

N/A

I-910 Application for Civil Surgeon Designation

609

530

−79

I-924 Application For Regional Center Designation Under the Immigrant Investor Program

400

520

120

I-924A Annual Certification of Regional Center

882

950

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

575

2,200

1,625

N-300 Application to File Declaration of Intention

−37

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

4,666

4,700

N-400 Application for Naturalization

830,673

913,500

82,827

N-470 Application to Preserve Residence for Naturalization Purposes

362

110

−252

N-565 Application for Replacement Naturalization/Citizenship Document

28,914

28,000

−914

N-600/600K Application for Certificate of Citizenship Subtotal

69,723

64,000

−5,723

N-600 Application for Certificate of Citizenship

N/A

61,000

N/A

N-600K Application for Citizenship and Issuance of Certificate Under Section 322

N/A

3,000

N/A

Inadmissibility Waiver Subtotal

71,527

105,492

33,965

I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)

N/A

260

N/A

I-192 Application for Advance Permission to Enter as Nonimmigrant

N/A

69,557

N/A

I-193 Application for Waiver of Passport and/or Visa

N/A

7,763

N/A

I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

N/A

6,132

N/A

I-601 Application for Waiver of Ground of Excludability

N/A

21,000

N/A

I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)

N/A

780

N/A

USCIS Immigrant Fee

472,511

594,000

121,489

G-1041 Genealogy Index Search Request

3,605

4,650

1,045

G-1041A Genealogy Records Request

2,410

2,550

140

Subtotal

5,870,989

9,336,015

3,508,026

Biometric Services

3,028,254

N/A

Total

8,899,243

9,336,015

479,772

b. Fee-Paying Volume

USCIS uses historical revenue and receipt data to determine the number of individuals who paid a fee for each immigration benefit request. Total revenue for an immigration benefit request is divided by its fee to determine the number of fee-paying immigration benefit requests. Fee-paying receipts are compared to the total number of receipts (workload volume) to determine a fee-paying percentage for each immigration benefit request. When appropriate, projected fee-paying volume is adjusted to reflect filing trends and anticipated policy changes. These projections include the effects of changes that DHS is proposing in this rule to fee waiver policies, the discontinuation of free interim benefits while an Application to Register Permanent Residence or Adjust Status is pending, as well as the introduction of fees for Form I-589, Application for Asylum and for Withholding of Removal and Form I-182D, Consideration of Deferred Action for Childhood Arrivals (Renewal).

Some immigration benefit request volumes include estimated fee-paying volumes from CBP.

See section V.C. Fee Waivers of this preamble for more information on the proposed changes.

See section V.R. Fees Shared by CBP and USCIS of this preamble for more information.

Table 5—Fee-Paying Projection Comparison

Immigration benefit request

Average annual

FY 2016/2017

fee-paying

projection

Average annual

FY 2019/2020

fee-paying

projection

Difference

I-90 Application to Replace Permanent Resident Card

718,163

682,722

−35,442

I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

9,499

7,155

−2,344

I-129 Petition for a Nonimmigrant Worker Subtotal

427,778

553,266

125,488

I-129H1

N/A

423,304

N/A

I-129H2A—

Named Beneficiaries

N/A

3,962

N/A

I-129H2B—Named Beneficiaries

N/A

2,256

N/A

I-129L

N/A

41,502

N/A

I-129O

N/A

25,456

N/A

I-129CW, I-129E&TN, and I-129MISC

N/A

43,491

N/A

I-129H2A—Unnamed Beneficiaries

N/A

8,981

N/A

I-129H2B—Unnamed Beneficiaries

N/A

4,315

N/A

I-129F Petition for Alien Fiancé(e)

39,277

47,923

8,646

I-130 Petition for Alien Relative

907,512

976,398

68,886

I-131/I-131A Application for Travel Document Subtotal

194,461

322,829

128,368

I-131 Application for Travel Document

N/A

291,068

N/A

I-131 Refugee Travel Document for an individual age 16 or older

N/A

20,714

N/A

I-131 Refugee Travel Document for a child under the age of 16

N/A

1,248

N/A

I-131A Application for Carrier Documentation

N/A

9,799

N/A

I-140 Immigrant Petition for Alien Worker

88,602

161,000

72,398

I-290B Notice of Appeal or Motion

20,955

20,705

−250

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

8,961

4,224

−4,737

I-485 Application to Register Permanent Residence or Adjust Status

473,336

510,926

37,590

I-526 Immigrant Petition by Alien Entrepreneur

14,673

14,000

−673

I-539 Application to Extend/Change Nonimmigrant Status

171,616

223,903

52,287

I-589 Application for Asylum and for Withholding of Removal

N/A

163,000

N/A

I-600/600A; I-800/800A Orphan Petitions and Applications

5,811

6,142

331

I-600A/I-600 Supplement 3 Request for Action on Approved Form I-600A/I-600

N/A

768

N/A

I-601A Provisional Unlawful Presence Waiver

42,724

67,000

24,276

I-687 Application for Status as a Temporary Resident

I-690 Application for Waiver of Grounds of Inadmissibility

I-694 Notice of Appeal of Decision

−29

I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA)

100

I-751 Petition to Remove Conditions on Residence

162,533

148,918

−13,615

I-765 Application for Employment Authorization

397,954

1,846,491

1,448,537

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

746

768

I-817 Application for Family Unity Benefits

1,988

1,368

−620

I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal)

N/A

396,000

N/A

I-824 Application for Action on an Approved Application or Petition

10,828

11,147

319

I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status

3,562

3,500

−62

I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

N/A

340

N/A

I-910 Application for Civil Surgeon Designation

609

530

−79

I-924 Application For Regional Center Designation Under the Immigrant Investor Program

400

520

120

I-924A Annual Certification of Regional Center

882

950

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

257

1012.5

756

N-300 Application to File Declaration of Intention

−32

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

3,593

3,873

280

N-400 Application for Naturalization

631,655

811,730

180,075

N-470 Application to Preserve Residence for Naturalization purposes

360

107

−253

N-565 Application for Replacement Naturalization/Citizenship Document

23,491

23,458

−34

N-600/600K Naturalization Certificate Application Subtotal

46,870

49,826

2,956

N-600 Application for Certificate of Citizenship

N/A

46,857

N/A

N-600K Application for Citizenship and Issuance of Certificate Under Section 322

N/A

2,970

N/A

Inadmissibility Waiver Subtotal

41,902

58,098

16,196

I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)

N/A

260

N/A

I-192 Application for Advance Permission to Enter as Nonimmigrant

N/A

22,780

N/A

I-193 Application for Waiver of Passport and/or Visa

N/A

7,672

N/A

I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

N/A

6,085

N/A

I-601 Application for Waiver of Ground of Excludability

N/A

20,711

N/A

I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)

N/A

590

N/A

USCIS Immigrant Fee

472,511

572,425

99,914

G-1041 Genealogy Index Search Request

3,605

4,650

1,045

G-1041A Genealogy Records Request

2,410

2,550

140

Subtotal

4,929,707

7,789,861

2,860,154

Biometric Services

2,598,639

N/A

Grand Totals

7,528,346

7,789,861

261,515

2. Completion Rates

USCIS completion rates are the average hours per adjudication of an immigration benefit request. They identify the adjudicative time required to complete (render a decision on) specific immigration benefit requests. The completion rate for each benefit type represents an average. Completion rates reflect what is termed “touch time,” or the time an employee with adjudicative responsibilities actually handles the case. This does not reflect “queue time,” or time spent waiting, for example, for additional evidence or supervisory approval. Completion rates do not reflect the total processing time applicants, petitioners, and requestors can expect to wait for a decision on their case after USCIS accepts it.

USCIS requires employees who adjudicate immigration benefit requests to report adjudication hours and case completions by benefit type. Adjudication hours are divided by the number of completions for the same time period to determine an average completion rate. In addition to using this data to determine fees, completion rates help determine appropriate staffing allocations to handle projected workload. The USCIS Office of Performance and Quality (OPQ), field offices, and regional management scrutinize the data to ensure accuracy. When data is inconsistent and/or anomalies are identified, the OPQ contacts the reporting office to resolve and make necessary adjustments. USCIS has confidence in the data, given the consistency of reporting over the last several years. The continual availability of the information enables USCIS to update cost information for each fee review.

Table 6—Completion Rates per Benefit Request

[Projected adjudication hours/completion]

Immigration benefit request

Service-wide

completion rate

I-90 Application to Replace Permanent Resident Card

0.19

I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

0.77

I-129H1

1.10

I-129H2A—Named Beneficiaries

1.92

I-129H2B—Named Beneficiaries

2.00

I-129L

2.23

I-129O

1.90

I-129CW, I-129E&TN, and I-129MISC

1.62

I-129H2A—Unnamed Beneficiaries

0.50

I-129H2B—Unnamed Beneficiaries

0.58

I-129F Petition for Alien Fiancé(e)

0.67

I-130 Petition for Alien Relative

0.86

I-131 Application for Travel Document

0.25

I-131 Refugee Travel Document for an individual age 16 or older

0.27

I-131 Refugee Travel Document for a child under the age of 16

0.25

I-131A Application for Carrier Documentation

1.01

I-140 Immigrant Petition for Alien Worker

1.46

I-290B Notice of Appeal or Motion

1.32

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

1.65

I-485 Application to Register Permanent Residence or Adjust Status

1.63

I-526 Immigrant Petition by Alien Entrepreneur

8.65

I-539 Application to Extend/Change Nonimmigrant Status

0.51

I-589 Application for Asylum and for Withholding of Removal

4.10

I-600/600A; I-800/800A Orphan Petitions and Applications

2.22

I-600A/I-600 Supplement 3 Request for Action on Approved Form I-600A/I-600

1.90

I-601A Provisional Unlawful Presence Waiver

2.64

I-687 Application for Status as a Temporary Resident

N/A

I-690 Application for Waiver of Grounds of Inadmissibility

1.05

I-694 Notice of Appeal of Decision

1.10

I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA)

3.76

I-751 Petition to Remove Conditions on Residence

1.30

I-765 Application for Employment Authorization

0.20

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

1.90

I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal)

0.12

I-817 Application for Family Unity Benefits

0.91

I-824 Application for Action on an Approved Application or Petition

0.78

I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status

8.15

I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

2.00

I-910 Application for Civil Surgeon Designation

1.81

I-924 Application For Regional Center Designation Under the Immigrant Investor Program

34.95

I-924A Annual Certification of Regional Center

10.00

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

2.60

N-300 Application to File Declaration of Intention

2.68

N-336 Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)

3.05

N-400 Application for Naturalization

1.57

N-470 Application to Preserve Residence for Naturalization purposes

4.02

N-565 Application for Replacement Naturalization/Citizenship Document

0.89

N-600 Application for Certificate of Citizenship

1.08

N-600K Application for Citizenship and Issuance of Certificate Under Section 322

1.57

I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)

2.10

I-192 Application for Advance Permission to Enter as Nonimmigrant

0.97

I-193 Application for Waiver of Passport and/or Visa

0.30

I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal

2.71

I-601 Application for Waiver of Ground of Excludability

3.29

I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)

0.53

USCIS Immigrant Fee

N/A

USCIS does not list completion rates for the following immigration benefit requests, forms, or other services, due to the special nature of their processing as explained below:

•

USCIS Immigrant Fees.

USCIS does not adjudicate applications for an immigrant visa. Rather, individuals located outside of the United States apply with a Department of State (DOS) overseas consular officer for an immigrant visa. If DOS issues the immigrant visa, the individual may apply with a U.S. Customs and Border Protection (CBP) officer at a port of entry for admission to the United States as an immigrant. This fee represents USCIS' costs to create and maintain files and to issue permanent resident cards to individuals who go through this process.

See

8 CFR 103.7(b)(1)(i)(D), proposed 8 CFR 106.2(c)(3).

•

Refugee Processing and Other Forms Exempt from Fees.

These immigration benefit requests may use completion rates to determine staffing

levels. However, USCIS does not list completion rates for these workloads because these are exempt from paying a fee:

○ Credible Fear;

○ Reasonable Fear;

○ Registration for Classification as a Refugee, Form I-590;

○ Application By Refugee For Waiver of Grounds of Excludability, Form I-602;

○ Refugee/Asylee Relative Petition, Form I-730;

○ Application for T Nonimmigrant Status, Form I-914;

○ Petition for U Nonimmigrant Status, Form I-918; and

○ Application for Posthumous Citizenship, Form N-644.

•

Temporary Protected Status (TPS).

DHS proposes not to rely on TPS fee revenue for recovering USCIS' operational expenses, consistent with previous fee rules.

See

81 FR 73312-3. TPS designations may be terminated under current law or may cease due to a reduction in the eligible population. Termination of the program, in whole or in part, after the fees are set would result in unrealized revenue and a commensurate budgetary shortfall. After the fee schedule is effective, fees cannot be adjusted until the next fee schedule notice and comment rulemaking. Thus, temporary programs subject to termination based on changed circumstances are generally not included in the fee setting model. As such, USCIS excludes the completion rate for Form I-821, Application for Temporary Protected Status, from discussion in this rule because DHS cannot change the initial statutory registration fee permitted under section 244(c)(1)(B) of the INA or establish a re-registration fee for TPS. USCIS will continue to charge the biometric services fee, where required, and the fee for an employment authorization document, as permitted under 8 U.S.C. 1254b.

3. Assessing Proposed Fees

Historically, as a matter of policy, DHS uses its discretion to limit fee increases for certain immigration benefit request fees that would be overly burdensome on applicants, petitioners, and requestors if set at recommended ABC model output levels.

Previous proposed IEFA fee schedules referred to limited fee increases as “low volume reallocation” or “cost reallocation.”

Despite the two separate phrases, the calculation for both is the same. In the FY 2016/2017 fee rule, USCIS calculated an 8 percent limited fee increase for certain immigration benefit request fees.

For this proposed rule, USCIS calculated a limited fee increase of 5 percent using the same methodology as the previous rule.

See footnotes 15 and 16.

The FY 2016/2017 proposed fee schedule used both phrases.

See

81 FR 26915. The FY 2010/2011 and FY 2008/2009 proposed fee schedules used the phrase “low volume reallocation.”

See

75 FR 33461 and 72 FR 4910, respectively.

The 8 percent increase was the percentage difference between the current fees and the model output before reallocation, weighted by fee-paying volume.

See

81 FR 73296. The model output is a projected fee-paying unit cost from the ABC model. It is projected total cost divided by projected fee-paying receipts. While each fee review may calculate a different percentage, the formula for the calculation remains the same.

In the docket for this proposed rule, the FY 2019/2020 Immigration Examinations Fee Account Fee Review Supporting Documentation has more information. See the Cost Reallocation column of Appendix Table 3: Proposed Fees by Immigration Benefit Request.

As such, DHS proposes that the following immigration benefit request fees are limited to a 5 percent increase above the current fees:

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

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

• Form I-600, Petition to Classify Orphan as an Immediate Relative.

• Form I-600A, Application for Advance Processing of an Orphan Petition.

• Form I-600A/I-600, Supplement 3, Request for Action on Approved Form I-600A/I-600.

DHS explains the purpose of this new proposed form in section V.M.3 of this preamble. Request for Action on Approved Application for Advance Processing of an Orphan Petition or Petition to Classify Orphan as an Immediate Relative, Form I-600A/I-600 Supplement 3.

• Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative.

• Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country.

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

The proposed increase of approximately 5 percent may vary slightly due to rounding. DHS rounds all IEFA fees to the nearest $5 increment.

In order for the proposed fee schedule to recover full cost, DHS proposes that other fees be increased to offset the projected cost of the 5 percent limited fee increase. Similarly, DHS proposes that other fees increase to offset a projected increase in workloads that are exempt from paying fees or that are capped at a fee less than what the ABC model indicates that they should pay. In this proposed rule, DHS refers to the process of recovering full cost for workloads without fees or the shifting of cost burdens among benefit request fees as a result of other policy decisions as cost reallocation.

Some proposed fees are significantly higher than the current fees. In some cases, this is because DHS proposes to not limit those fee increases, as it has done in the past, for policy reasons. Previous fee schedules limited the increase for certain immigration benefit requests, such as most naturalization related forms.

See

81 FR 26915-6. In this proposed rule, DHS proposes to not limit the fee increase to 5 percent for the following immigration benefit requests:

See

V.O. Naturalization (discussion on the proposed naturalization fees).

• Form I-601A, Provisional Unlawful Presence Waiver.

• Form I-765, Application for Employment Authorization.

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

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

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

• Form N-400, Application for Naturalization.

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

If DHS were to propose limited fee increases for these immigration benefit requests, then other proposed fees would have to increase to recover full cost. For example, if DHS were to propose limited fee increases for all of the immigration benefit request fees that were limited in the previous fee rule, then some proposed fees could increase by as much as $1,185, with the average of those changes being an increase of $12 per immigration benefit request. The rationale for some of these proposed changes is further discussed later in the preamble. See section V. Proposed Changes in the FY 2019/2020 Fee Schedule.

Public commenters generally do not support fee increases. A fee decrease may be more popular. Generally, there are several potential ways to reduce IEFA fees:

1. Reduce projected costs or use other funding sources (such as appropriations, other fee accounts, carryover, or recoveries of prior year obligations);

2. Increase projected fee-paying receipts; or

3. Reduce completion rates.

As discussed earlier, reducing the projected costs to equal the projected revenue would risk degrading USCIS

operations funded by the IEFA.

Likewise, other funding sources are insufficient or unavailable.

Some of the proposed fees would be even higher without an increase to projected fee-paying receipts.

As discussed in the previous section, completion rates are based on reported adjudication hours and completions. USCIS does not believe the level of effort for future adjudications will decrease.

See section IV.A.3., Costs and Revenue Differential, of this preamble.

See

id.

and section III. Basis for the Fee Review.

See section V.C.3., Proposed Fee Waiver Changes, for more information.

C. Fee-Related Issues Noted for Consideration

DHS identifies a number of issues that do not affect the FY 2019/2020 fee review but do merit some discussion. DHS does not propose any changes related to the issues discussed in this section. USCIS may discuss these issues in future biennial fee reviews or in conjunction with other USCIS fee rules. DHS welcomes comments on all facets of the FY 2019/2020 fee review, this proposed rule, and USCIS fees in general, regardless of whether changes have been proposed here.

1. Accommodating E-Filing and Form Flexibility

DHS attempts, as it did in the FY 2016/2017 fee rule, to propose fees based on form titles instead of form numbers to avoid prescribing fees in a manner that could undermine the conversion of USCIS to electronic processing.

See

proposed 8 CFR 106. Form numbers are included for informational purposes, but are not intended to restrict the ability of USCIS to collect a fee for a benefit request that falls within the parameters of the adjudication for which the fee is published. As USCIS modernizes its processes and systems to allow more applicants, petitioners, and requestors to file applications online, the agency may collect fees for immigration benefit requests that do not have a form number or do not have the same form number as described in regulations. This could occur, for example, if USCIS developed an online version of a request that individuals often submit with applications for employment authorization. In this situation, USCIS may find it best to consolidate the two requests without separately labelling the different sections related to the relevant form numbers. DHS would still collect the required fee for the underlying immigration benefit request as well as the request for employment authorization, but the actual online request would not necessarily contain form numbers corresponding to each separate request.

Similarly, USCIS may determine that efficiency would be improved by breaking a paper form into separate paper forms. For instance, USCIS could separate Form I-131, Application for Travel Document, into a separate form and form number for advance parole, humanitarian parole, refugee travel documents, or reentry permits. In this example, USCIS could continue to charge the current Form I-131 fee. This structure permits USCIS to change forms more easily without having to perform a new fee review each time the agency chooses to do so.

2. Processing Time Outlook

As discussed in the Cost and Revenue Differential section of this preamble, USCIS anticipates having insufficient resources to process its projected workload. USCIS estimates that it will take several years before USCIS backlogs decrease measurably. USCIS experienced an unexpectedly high volume of immigration benefit requests in FY 2016 and FY 2017. In FY 2018, USCIS implemented measures to reduce the backlog, such as adjudicating asylum workload on a last-in-first out basis.

As explained in the Cost Projections section of this preamble, projected workloads for FY 2019 and FY 2020 exceed current workload capacity, thereby requiring additional staff.

U.S. Citizenship and Immigration Services,

USCIS to Take Action to Address Asylum Backlog,

available at

https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog

(last reviewed/updated Feb. 2, 2018).

A number of uncertainties remain that impede efficient case processing and timely decision making. One uncertainty is how to define the specific elements of the screening and national security vetting that USCIS will employ. This new framework will likely involve greater use of social media screenings and more in-person interviews of applicants for certain immigration benefits.

In addition, USCIS believes that the growing complexity of the case adjudication process over the past few years has also contributed to higher completion rates. For example, it takes more time for officers to adjudicate each case. (See section IV.B.2. Completion Rates.)

USCIS,

USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants,

https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants

(last reviewed/updated Aug. 28, 2017).

Through this rule, USCIS expects to collect sufficient fee revenue to fund additional staff that will support FY 2019/2020 workload projections as well as perform more national security vetting and screening. While USCIS is committed to ensuring the integrity of the immigration system and safeguarding national security, it is also committed to reducing processing times and the current backlog, without sacrificing proper vetting checks, by identifying ways to increase efficiency, ensuring the successful transition from paper-based to electronic processing, and increasing adjudicative resources. For example, USCIS is transitioning non-adjudicative work from adjudicators to other staff, centralizing the delivery of information services through the USCIS Contact Center, and leveraging electronic processing and automation.

Applicants, petitioners, and requestors can track the status of their immigration benefit requests online by using their receipt number or by creating an online account at

https://uscis.gov/casestatus

. They may also make an “outside normal processing time” case inquiry for any benefit request pending longer than the time listed for the high end of the range by submitting a service request online at

https://egov.uscis.gov/e-request/Intro.do

or calling the USCIS Contact Center at 1-800-375-5283.

USCIS also expects to improve the user 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 necessary to provide near-real-time processing updates on the status and time period lapsed between actions for each individual case. This enables greater transparency to the public on how long it will take to process each case as it moves from stage to stage (for example, biometrics collection, interview, and decision).

USCIS is committed to providing applicants, petitioners, and requestors with relevant information when they need it. As a result, USCIS is transforming how it calculates and posts processing time information in an effort to improve the timeliness of such postings, but more importantly to achieve greater transparency. USCIS will continue to provide processing times in an accurate and transparent fashion.

V. Proposed Changes in the FY 2019/2020 Fee Schedule

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

In the FY 2016/2017 fee rule, DHS amended the regulations regarding how USCIS treats a benefit request accompanied by fee payment (in the form of check or other financial instrument) that is subsequently returned as not payable.

See

81 FR 73313-15 (Oct. 24, 2016); 8 CFR 103.2(a)(7)(ii) and 8 CFR 103.7(a)(2). If a financial instrument used to pay a fee is returned as unpayable after one re-presentment, USCIS rejects the filing and imposes a standard $30 charge.

See id.

In the preamble to the FY 2016/2017 fee rule, DHS stated that, to make sure a payment rejection is the result of insufficient funds and not due to USCIS error or network outages, USCIS (through the U.S. Department of the Treasury (Treasury)) will resubmit rejected payment instruments to the appropriate financial institution one time.

See

8 CFR 103.2(a)(7)(ii)(D). While DHS's intent was to submit only checks that were dishonored due to insufficient funds, some stakeholders have interpreted the re-presentment as applying to any check DHS has deposited that is returned as unpayable. Although the Treasury check clearance regulations permit an agency to re-deposit a check dishonored due to insufficient funds, they prohibit submitting checks dishonored for other reasons for clearance a second time.

See

31 CFR 210.3(b); 2016 NACHA Operating Rules & Guidelines: A Complete Guide to Rules Governing the ACH Network, Subsection 2.5.13.3 (limiting re-depositing a check to those that are returned due to “Not Sufficient Funds,” “NSF,” “Uncollected Funds,” or comparable). To comply with the Treasury regulations, DHS is proposing in this rule that if a check or other financial instrument used to pay a fee is returned as unpayable

because of insufficient funds,

USCIS will resubmit the payment to the remitter institution one time. If the remitter institution returns the instrument used to pay a fee as unpayable a second time, USCIS will reject the filing. USCIS will not re-deposit financial instruments returned as unpayable for a reason other than insufficient funds. Proposed 8 CFR 103.2(a)(7)(ii)(D).

In addition, DHS proposes that it may reject a request that is accompanied by a check that is dated more than 365 days before the receipt date. Currently, USCIS policy is to reject a check that is dated more than a year before it is submitted. However, that policy is not codified, and DHS has been sued or threatened with litigation multiple times when a check that was dated more than a year before it was submitted was the basis of a rejection that caused the requestor to miss an important deadline. For example, USCIS has permitted an applicant to submit Form I-821 after the deadline

and adjudicated a Form I-485 filed after the applicant's U nonimmigrant status had expired because his initial, timely filing was rejected because it contained a check that was more than one year old.

See

8 CFR 245.24(b)(2)(ii) (requiring the applicant to hold U nonimmigrant status at the time of application.). While most personal and business checks do not expire, they become what is known as “stale dated” six months after they are written. This is because many things may change in six months that may affect the check's validity or the original reason that it was written. Accordingly, the Uniform Commercial Code

provides that a bank may delay access to the funds from or is not obligated to deposit, cash, honor, or pay a stale check. USCIS projects that it will receive an average 7,789,861 fee payments per year.

It is important that its requirements for payment instruments provide certainty and minimize the likelihood of a payment being dishonored. Although commercial banks use a guideline of six months, DHS proposes to reject only year-old checks to provide requestors with more flexibility in case there are delays with their filing. Rejecting a check that is dated more than a year earlier is also consistent with the time limit for a check issued by the U.S. Treasury.

See

31 CFR 245.3(a) (“Any claim on account of a Treasury check must be presented to the agency that authorized the issuance of such check within one year after the date of issuance of the check or within one year after October 1, 1989, whichever is later.”). Rejection of a stale check will not be mandatory, so USCIS will still have the authority to waive the check date requirement in exigent circumstances.

See

8 CFR 244.17(a) (“Applicants for periodic re-registration must apply during the registration period provided by USCIS.”).

A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer's account for a payment made thereafter in good faith. UCC 4-404 (2002).

See section IV.B.1.b. Fee-Paying Volume in this preamble.

DHS also proposes that USCIS may require that certain fees be paid using a certain payment method or that certain fees cannot be paid using a particular method. Proposed 8 CFR 106.1(b). For example, USCIS may require that a request be submitted by using

Pay.gov

, a secure portal which transmits an applicant's payment information directly to the U.S. Treasury for processing, or may preclude the use of certain payment types such as cashier's check and money orders for the payment of a particular form or when payments are made at certain offices. The proposed change provides that payment method will be provided in the form instructions (including for online filing) or by individual notice (a bill, invoice, appointment confirmation, etc.); therefore, requestors will be clearly notified of any limitations on the payment method for the request they are filing. About 80 percent of all USCIS filings are received via a Lockbox that is well versed in intake and depositing of multiple payment types. However, the requirements and circumstances for the filing of some requests do not permit lockbox submission and intake, and the request must be filed at a particular office or in person. Various offices, such as field offices, embassies, and consulates, are limited in the method of payment that they can receive or process. Additionally, certain payment methods such as checks or cash require time-intensive procedures for cashiers and their supervisors to input, reconcile, and verify their daily receipts and deposits. Generally, federal agency offices must deposit money that they receive on the same day that it is received.

See

31 U.S.C. 3720(a); 31 CFR 206.5; Treasury Financial Manual Vol. 1, Part 5, Chapter 2000, Section 2055.

There are additional requirements and guidance for timely record keeping and redundancy in personnel that similarly increase workload and processing costs.

See

31 U.S.C. 3302(e); Treasury Financial Manual Vol. 1, Part 5, Chapter 2000, Section 2030;

Category

Main immigration benefit requests

Associated forms

Violence Against Women Act (VAWA) self-petitioners.

• Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (no fee)

• Form I-485, Application to Register Permanent Residence or Adjust Status

• Form I-751, Petition to Remove Conditions on Residence

• Form I-131, Application for Travel Document.

• Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

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

• Form I-601, Application for Waiver of Grounds of Inadmissibility.

• Form I-765, Application for Employment Authorization (no fee for principals).

Victims of Severe Form of Trafficking (T visas).

• Form I-914, Application for T Nonimmigrant Status (no fee)

• Form I-914, Supplement A, Application for Family Member of T-1, Recipient (no fee)

• Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (no fee)

• Form I-485, Application to Register Permanent Residence or Adjust Status

• Form I-131, Application for Travel Document.

• Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

• Form I-193, Application for Waiver of Passport and/or Visa.

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

• Form I-539, Application to Change/Extend Nonimmigrant Status.

• Form I-601, Application for Waiver of Grounds of Inadmissibility.

• Form I-765, Application for Employment Authorization (no fee for principals).

Victims of Criminal Activity (U visas).

• Form I-918, Petition for U Nonimmigrant Status (no fee)

• Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient (no fee)

• Form I-918, Supplement B, U Nonimmigrant Status Certification (no fee)

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

• Form I-485, Application to Register Permanent Residence or Adjust Status

• Form I-131, Application for Travel Document.

• Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

• Form I-193, Application for Waiver of Passport and/or Visa.

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

• Form I-539, Application to Extend/Change Nonimmigrant Status.

• Form I-765, Application for Employment Authorization (no fee for principals).

Battered spouses of A, G, E-3, or H nonimmigrants.

• Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse (no fee)

• None.

Battered spouses or children of a lawful permanent resident or U.S. citizen under INA 240A(b)(2).

• EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (DOJ form and immigration judge determines fee waiver)

• Form I-601, Waiver of Grounds of Inadmissibility.

Temporary Protected Status.

• I-821, Application for Temporary Protected Status

• Biometric Services Fee

• Form I-131, Application for Travel Document.

• Form I-601, Application for Waiver of Grounds of Inadmissibility.

• Form I-765, Application for Employment Authorization.

Before 2007, USCIS could

waive any fee, even if a fee waiver was inconsistent with the underlying immigration benefit request. For example, before 2007, USCIS could waive fees for companies seeking to sponsor foreign workers, individuals seeking status based on substantial business investments, or individuals seeking to sponsor foreign relatives to whom the sponsors must provide financial support.

See

72 FR 4912. Since 2007, USCIS has limited the fees that may be waived under 8 CFR 103.7(c)(3) based on the general premise that fee waivers must be consistent with any financial considerations that apply to the status or benefit sought.

See

8 CFR 103.7(c)(1)(ii).

Some immigration benefit requests may not have a fee for the specific category.

See

INA sec. 101(a)(51), 8 U.S.C. 1101(a)(51); INA section 245(l)(7), 8 U.S.C. 1255(l)(7). Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008); 22 U.S.C. 7101

et seq.

Currently, fees for Form I-131 are exempt if filed in conjunction with a pending or concurrently filed Form I-485 with fee that was filed on or after July 30, 2007.

See

8 CFR 103.7(b)(1)(i)(M)(4). However, DHS proposes changes to this policy in this rule as explained later in this preamble.

Form I-360 allows a principal self-petitioner to request an EAD incident to case approval without submitting a separate Form I-765. Form I-765 is required for employment authorization requests by derivative beneficiaries.

See

INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) (T nonimmigrant status for victims of a severe form of trafficking in persons).

See

INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U) (U nonimmigrant status for victims of certain criminal activity).

See

INA sec. 106, 8 U.S.C. 1105a.

See

INA sec. 240A(b)(2), 8 U.S.C. 1229b(b)(2), and INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).

See INA sec. 244, 8 U.S.C. 1254a.

Following the FY 2010/2011 fee rule, USCIS also issued policy guidance to streamline fee waiver adjudications and make them more consistent across offices and form types nationwide.

See

Policy Memorandum, PM-602-0011.1,

Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule;

Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar. 13, 2011) (“Fee

Waiver Policy”). The Fee Waiver Policy clarified acceptable measures of income and documentation that individuals may present to demonstrate they are unable to pay a fee when requesting a fee waiver. In June 2011, USCIS issued Form I-912, Request for Fee Waiver, as a standardized form with instructions to request a fee waiver in accordance with the Fee Waiver Policy.

USCIS previously engaged in a holistic analysis of the individual's finances to determine inability to pay.

See, e.g.,

William R. Yates,

Field Guidance on Granting Fee Waivers Pursuant to 8 CFR 103.7(c)

(Mar. 4, 2004). The 2011 Fee Waiver Policy established a streamlined process where USCIS would usually waive the entire fee and the biometric services fee for forms listed in 8 CFR 103.7(c)(3) for applicants who at time of filing the fee waiver request with the benefit application:

The form and its instructions may be viewed at

http://www.uscis.gov/i-912

. The proposed version is available for review in the docket for this proposed rule.

See

Policy Memorandum, PM-602-0011.1, Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar. 13, 2011); AFM Chapter 10.9(b).

• Were receiving a means-tested benefit;

• Had a household income at or below 150 percent of the Federal Poverty Guidelines (FPG); or

• Were experiencing extreme financial hardship such as unexpected medical bills or emergencies.

The FY 2010/2011 fee rule also authorized the USCIS director to approve and suspend exemptions from fees or provide that the fee may be waived for a case or class of cases that is not otherwise provided in 8 CFR 103.7(c).

See

75 FR 58990; 8 CFR 103.7(d).

On October 25, 2019, USCIS published the updated Form I-912

and corresponding policy guidance in the USCIS Policy Manual

that removed the means-tested benefit as a criterion in the fee waiver request determination, clarified that the submission of Form I-912 is required to request a fee waiver, and clarified some of the evidence requirements. The new policy will be effective on December 2, 2019. Therefore, as of December 2, 2019 an individual would be eligible to request a fee waiver based on one of two criteria for inability to pay,

i.e.,

if he or she:

The Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) approved the form changes on October 24, 2019, available at

https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201910-1615-006#

(last visited October 25, 2019).

See USCIS, Policy Alert PA 2019-06, Fees for Submission of Benefit Requests, available at

https://www.uscis.gov/sites/default/files/policymanual/updates/20191025-FeeWaivers.pdf

(last visited Oct. 25, 2019) (revising the USCIS interpretation of unable to pay in 8 CFR 103.7(c)).

• Has a household income at or below 150 percent of the FPG; or

• Is experiencing extreme financial hardship such as unexpected medical bills or emergencies.

This proposed rule further limits forms eligible for a fee waiver and the criteria to establish eligibility for a fee waiver.

2. Cost of Fee Waivers

The U.S. Government Accountability Office (GAO), an independent, nonpartisan agency that works for Congress, describes equity of federal user fees as a balancing act between two principles:

• Beneficiary-pays; and

• Ability-to-pay.

GAO,

Federal User Fees: A Design Guide

(May 29, 2008), available at

https://www.gao.gov/products/GAO-08-386SP

This proposed rule emphasizes the beneficiary-pays principle. Under the beneficiary-pays principle, the beneficiaries of a service pay for the cost of providing that service.

See

GAO-08-386SP at pp. 7-12.

Under the ability-to-pay principle, those who are more capable of bearing the burden of fees should pay more for the service than those with less ability to pay. IEFA fee exemptions, fee waivers, and reduced fees for low income households adhere to this principle. Applicants, petitioners, and requestors who pay a fee cover the cost of processing requests that are fee-exempt, fee-waived, or fee-reduced. For example, if only 50 percent of a benefit request workload is fee-paying, then those who pay the fee will pay twice as much as they would if everyone paid the fee. By paying twice as much, they pay for their benefit request and the cost of the same benefit request that someone else did not pay for.

In prior years, USCIS fees have given significant weight to the ability-to-pay principle. In the FY 2016/2017 fee rule, DHS noted that the estimated annual forgone 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.

See

81 FR 26922 and 73307. In the FY 2016/2017 proposed rule, DHS estimated that the increase in fee waiver accounted for 9 percent of the 21 percent weighted average fee increase.

See

81 FR 26910. In the same proposed rule, DHS provided notice that in the future it may revisit the USCIS fee waiver guidance with respect to what constitutes inability to pay under 8 CFR 103.7(c).

See

81 FR 26922.

Each fee review plans for a certain level of fee waivers, fee exemptions, and other fee-paying policy decisions. Ideally, no IEFA revenue is lost due to fee waivers because USCIS plans for a certain level of fee waivers and fee exemptions. IEFA fees recover full cost, including the estimated cost of fee-waived and fee-exempt work. However, USCIS does forgo revenue by allowing fee waivers and fee exemptions. Forgone revenue represents the total fees that fee waiver or fee exempt applicants, petitioners, and requestors would have paid if they had paid the fees.

In the FY 2019/2020 fee review, USCIS determined that without changes to fee waiver policy, it would forgo revenue of approximately $1,494 million. The proposed fee schedule estimates $962 million forgone revenue from fee waivers and fee exemptions. The difference in forgone revenue is $532 million. Without changes to fee waiver policy, fees would increase by a weighted average of 31 percent, which is 10 percent more than in the proposed fee schedule.

3. Proposed Fee Waiver Changes

As previously stated, INA sec. 286(m), 8 U.S.C. 1356(m) authorizes but does not require that DHS set fees to recover the costs of administering USCIS adjudication and naturalization services. That statute also authorizes setting such fees at a level that will recover the costs of services provided without charge, but it does not require that DHS provide services without charge.

Nevertheless, DHS (and previously the INS) has provided fee waivers based on need.

See, e.g.,

63 FR 43604, 43607 (stating, “The Service often waives fees for this application when the economic need exists. The proposed rule stated, `For FY 1998, the Service estimates that approximately 50 percent of the Form I-765 applications will be processed at no charge to applicants, at a total cost of $35.9 million.' ”). For the reasons stated in this rule, DHS has determined that it is necessary to utilize this statutory discretion to establish the following new requirements for waiving USCIS fees.

Legislation enacted in 2008 requires that a fee waiver be considered for certain requests. INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7).

a. Limits on Eligible Forms and Categories

Because of the costs of fee waivers, and the inconsistency of current fee waiver regulations with the beneficiary pays principal, DHS proposes to limit fee waivers to immigration benefit requests for which USCIS is required by law to consider a fee waiver or where the USCIS Director exercises favorable discretion as provided in the proposed regulation.

See

proposed 8 CFR 106.3. The proposed regulation would limit the eligible forms and categories to those listed in Table 7: Statutory Fee Waiver Categories and Associated Forms.

Accordingly, many forms will generally no longer be eligible for a fee waiver,

except in limited circumstances where the law requires that a waiver be made available based on the circumstances of the applicant. Forms that would generally no longer be eligible for a fee waiver include the following:

Under the settlement agreement concluded in

American Baptist Churches

Thornburgh,

760 F. Supp. 976 (N.D. Cal. 1991) (

ABC

), “eligible class members who can demonstrate that they fall within the poverty guidelines as set forth in 45 CFR 1060.2 will not be required to pay the fee.” DHS will continue to allow these applicants to request a fee waiver. In 1991, the U.S. Department of Health and Human Services (HHS) codified at 45 CFR 1060.2 (1990) the federal poverty guidelines issued by the former HHS Office of Economic Opportunity/Community Services Administration. The

ABC

settlement agreement requires USCIS to waive fees for those covered by the agreement who fall squarely within the Federal Poverty Guidelines. The requirements for a fee waiver proposed in this rule are less restrictive than the subject settlement agreement.

See

proposed 8 CFR 106.3(d).

Fee waivers would still be available at the discretion of the USCIS Director, or as provided by INA 245(l)(7), 8 U.S.C. 1255(l)(7).

See

proposed 8 CFR 106.3. An applicant, petitioner, or requestor may not independently request that the Director exercise this authority.

• Form I-90, Application to Replace Permanent Resident Card;

• Form I-765, Application for Employment Authorization;

• CNMI related petitions and applications;

For example, Form I-129CW, Petition for CNMI-Only a Nonimmigrant Transitional Worker, and Form I-539, Application to Extend/Change Nonimmigrant Status.

• Form I-485, Application to Register Permanent Residence or Adjust Status;

Certain categories may still be eligible for fee waivers of an I-485, as identified in Table 7, as provided by INA 245(l)(7), 8 U.S.C. 1255(l)(7).

• Forms for applicants exempt from the public charge inadmissibility ground;

For example, Form I-601, Application for Waiver of Grounds of Inadmissibility, Form I-192, Application for Advance Permission to Enter as Nonimmigrant, and Form I-193, Application for Waiver for Passport and/or Visa.

• Form I-751, Petition to Remove Conditions on Residence;

• Naturalization and citizenship-related forms.

Including Form N-400, Application for Naturalization; Form N-470, Application to Preserve Residence for Naturalization Purposes; Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings; Form N-565, Application for Replacement of Naturalization/Citizenship Document; Form N-600, Application for Certification of Citizenship; and Form N-600K, Application for Citizenship and Issuance of Certificate Under section 322.

The Senate Appropriations Committee Report that accompanied the fiscal year 2017 Department of Homeland Security Appropriations Act

expressed concern about the increased use of fee waivers, which force those paying fees to absorb costs for which they receive no benefit.

DHS believes that these changes would make the fee increase more equitable for all immigration benefit requests by requiring fees for the service to be paid by those who benefit.

See

Public Law 115-31, div. F, 131 Stat. 135, 404.

See

S. Rep. No. 114-264, at 125 (2016).

b. Eligibility Requirements

Further, DHS proposes to generally limit fee waivers to individuals who have an annual household income of less than 125 percent of the FPG as defined by the U.S. Department of Health and Human Services (HHS). Notwithstanding these general limitations, however, a fee waiver may be authorized in the USCIS Director's discretion, even for those benefit requests not normally amenable to a fee waiver,

if an individual meets all three of the following requirements:

See

proposed 8 CFR 106.3(b) and (c).

• Has an annual household income at or below 125 percent of the FPG as defined by HHS;

• Is seeking an immigration benefit for which he or she is not required to submit an affidavit of support under INA section 213A, 8 U.S.C. 1183a, or is not already a sponsored immigrant as defined in 8 CFR 213a.1; and

• Is seeking an immigration benefit for which he or she is not subject to the public charge inadmissibility ground under INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

In addition, DHS would update the language in the regulation to codify that a person must submit a request for a fee waiver on the form prescribed by USCIS, as provided in the previous Form I-912 notice and provide evidence of household income such as federal income tax transcripts.

USCIS believes that making these changes to the fee waiver policy would assure that fee paying applicants do not bear the increasing costs caused by application fees being waived.

c. Income Requirements

The poverty guidelines are used as an eligibility criterion by many Federal public benefit programs and USCIS to determine income levels. The poverty guidelines are a simplified version of the poverty thresholds that the Census Bureau uses to prepare its estimates of the number of individuals and families in poverty.

Some federal programs use a percentage multiple of the guidelines (for example, 125 percent or 185 percent of the guidelines), as noted in relevant authorizing legislation or program regulations.

The poverty threshold or line (100 percent of the FPG) is the primary version of the federal poverty measure, as updated by the Census Bureau every year, and generally used to estimate the number of Americans in poverty each year.

See

Annual Update of the HHS Poverty Guidelines 84 FR 1167, 1168, available at

https://www.govinfo.gov/content/pkg/FR-2019-02-01/pdf/2019-00621.pdf

See id.

See

ASPE, Poverty Guidelines, available at

https://aspe.hhs.gov/poverty-guidelines

(last visited Aug. 16, 2019).

In the immigration context, USCIS uses 125 percent of the FPG as the standard for public charge and affidavit of support purposes.

Congress also identified 125 percent of FPG as a threshold for a sponsor to support an individual immigrant to meet the requirements an affidavit of support in the public charge inadmissibility determination.

The threshold for fee waiver eligibility under current regulations of 150 percent of the FPG is higher than the threshold used in the public charge and affidavit of support context. DHS believes limiting fee waivers to households with incomes at or below 125 percent of the FPG, as proposed in this rule, would be appropriate because it would be consistent with the affidavit of support requirements under INA sections 212(a)(4) and 213A, 8 U.S.C. 1182(a)(4).

See

8 CFR 212.22(b)(4)(i)(A).

See

INA sec. 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

d. Subject to INA Section 212(a)(4) and Affidavit of Support Requirements

The current fee waiver regulation allows people who are applying for several immigration benefits—advance permission to enter as a nonimmigrant, a waiver for passport and/or visa, adjustment of status, or for a waiver of grounds of inadmissibility—to file a fee waiver request if they are not subject to the public charge inadmissibility ground.

See

8 CFR 103.7(c)(4) (stating that certain fees may be waived “only for an alien for which a determination

of their likelihood of becoming a public charge under section 212(a)(4) of the Act is not required at the time of an application for admission or adjustment of status”). Consistent with this provision, DHS is proposing that fee waivers will not be available to applicants who are subject to the public charge inadmissibility ground.

See generally

8 CFR 103.7(c)(4).

DHS also proposes to preclude fee waivers for applicants who are subject to an affidavit of support under INA section 213A, 8 U.S.C. 1183a, or is already a sponsored immigrant as defined in 8 CFR 213a.1. Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress provided that the affidavit of support could be legally required and enforced for certain immigration categories.

A sponsor generally must demonstrate that he or she is able to maintain the sponsored alien at an annual income of not less than 125 percent of the FPG.

Although sponsors are not required to assist an alien with immigration fees, a sponsor is generally financially responsible for the alien; thus, an alien with a sponsor should not need a fee waiver. DHS has decided that it is inconsistent with that law and its stated objective that aliens be able to meet their needs for applicants who have a sponsor through an affidavit of support to receive immigration benefits for free, funded by others who are paying their full immigration benefit request fee. Therefore, USCIS believes that limiting fee waivers to those applicants who are not subject to affidavit of support requirements is consistent with congressional intent under IIRIRA.”

See

Div. C, Title V of Public Law 104-208, 110 Stat. 3009, 3009-670 (September 30, 1996).

See

INA 213A. A sponsor who is on active duty (other than active duty for training) in the U.S. armed forces and who is petitioning for a spouse or child only has to demonstrate the means to maintain an annual income equal to at least 100 percent of the FPG.

See Div. C, Title V of Public Law 104-208, 110 Stat. 3009, 3009-670 (September 30, 1996).

DHS notes that the House Report on Department of Homeland Security Appropriations Bill, 2019 stated, “USCIS is expected to continue the use of fee waivers for applicants who can demonstrate an inability to pay the naturalization fee. USCIS is also encouraged to consider whether the current naturalization fee is a barrier to naturalization for those earning between 150 percent and 200 percent of the federal poverty guidelines, who are not currently eligible for a fee waiver.” H. Rep. No. 115-948 at 61 (2018). USCIS appreciates the concerns of this recommendation and fully considered it before publishing this proposed rule. Nevertheless, DHS determined that the current trends and level of fee waivers are not sustainable. Work that USCIS provides for free or below cost impacts other fee-paying applicants by making their fees higher so DHS can recover USCIS full cost. DHS is trying to make the USCIS fee schedule more equitable for all applicants and petitioners. As shown in the supporting documentation for this rule, the number and dollar volume of fee waiver requests and foregone revenue has trended upward during periods of economic improvement. That indicates that, should the economy worsen, the number of fee waiver requests will increase to a level that could threaten the ability of USCIS to deliver programs without disruption.

Violence Against Women Act (VAWA) self-petitioners as defined under INA 101(a)(51); T nonimmigrants; U nonimmigrants; battered spouses of A, G, E-3, or H nonimmigrants; battered spouses or children of a lawful permanent resident or U.S. citizen as provided under INA sec. 240A(b)(2); and TPS applicants are not subject to the public charge inadmissibility provision or the affidavit of support requirements.

e. USCIS Director's Discretionary Fee Waivers and Emergency and Disaster Relief

DHS proposes to retain the authority in regulations for the Director of USCIS to waive any fee for a case or specific class of cases, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law. 8 CFR 103.7(d); proposed 8 CFR 106.3(b). DHS is concerned that the current authority provides too much discretion, however, and thus proposes to limit a Director's discretionary waiver to cases related to one of the following: (1) Asylees; (2) Refugees; (3) National security; (4) Emergencies or major disasters declared in accordance with 44 CFR part 206, subpart B; (5) An agreement between the U.S. government and another nation or nations; or (6) USCIS error.

DHS also proposes to clarify the discretionary authority of the Director to authorize fee waiver requests for a case or specific class of cases such as for emergency and disaster relief including tsunamis, wildfires, and hurricanes in accordance with 44 CFR part 206, subpart B. USCIS would continue to notify the general public of eligibility for fee waivers for specific forms under this provision through policy or website updates. Individuals who would qualify for such a fee waiver would still need to meet the requirements to request a fee waiver as provided in proposed 8 CFR 106.3(d). Proposed 8 CFR 106.3(d) complies with 42 U.S.C. 5174b. That law provides that the President, in consultation with the Governor of a State, may waive certain fees for an individual or household who lives in a federally declared disaster area, including the following USCIS fees: Form I-90, Form I-193, Form I-765, Form N-300, Form N-565, and the biometric services fee, which are forms and services related to establishing immigration status. DHS plans to carry out this permissive authority through the USCIS Director's exercise of his or her discretion to provide a specific class of fee waivers for emergency and disaster relief.

See

84 FR 3957 (Feb. 13, 2019).

DHS acknowledges that the proposed changes to the fee waiver policies would be a significant change from past fee waiver regulations and policies. Section 286(m) of the INA, 8 U.S.C. 1356(m), authorizes DHS to set USCIS fees at an amount necessary to recover the costs of free adjudication and naturalization services provided. It does not require that DHS provide free services. In past fee rules, DHS has made clear that it would not authorize fee waivers where such a waiver is inconsistent with the benefit requested and that fee waiver policy was based on economic necessity, rather than providing certain applicants with an advantage over another.

See

75 FR 58974. In addition, DHS has responded to comments requesting that it expand USCIS fee waivers by stating that the financial circumstances required to be eligible for certain benefits, such as intercountry adoptions, directly contradict the rationale for shifting costs related to such applications to others through fee waivers.

See

72 FR 29863. As previously stated, fee waiver increases accounted for 9 percent of the 21 percent weighted average fee increase in the FY 2016/2017 fee rule, and DHS stated that it may revisit the USCIS fee waiver guidance with respect to what constitutes inability to pay under 8 CFR 103.7(c) because of the increasing costs of providing free services through fee waivers.

See

81 FR 26922. Therefore, DHS is not basing the proposed changes to USCIS fee waiver policies upon factual findings that contradict those underlying the prior policy. In fact, the changes proposed in this rule are consistent with the direction that DHS previously took regarding fee waivers for emergency and disaster relief.

DHS appreciates that individuals who in the past may have received a free

service from USCIS may no longer be able to have their USCIS fees waived after these proposed changes take effect. However, to the extent that a person is in the process of completing and filing an immigration benefit request, has paid for assistance in preparing their request, including gathering necessary evidence to support the request, this rule provides public notice of the impending policy change. As for applicants who are not in the process of preparing a benefit request, there is no action that they would take as a result of assuming they will receive a fee waiver after the publication of this rule because they will be placed on notice of the likelihood of the proposed fee waiver changes and provided sufficient time to conform their behavior to the new requirements before they take effect.

f. Conforming Edits and Request for Comments

DHS also proposes to make conforming edits in its regulations to remove references to fee waivers.

See, e.g.,

proposed 8 CFR 240.63(a), 8 CFR 244.17(a), and 8 CFR 245.15(c)(2)(iv)(B). DHS also proposes to remove fee waivers for Commonwealth of the Northern Mariana Islands (CNMI) fees.

See

proposed 8 CFR 214.2(e)(23)(xv), (w)(14)(iii). DHS welcomes comment on the proposed limits on who may file a fee waiver request and for which forms a fee waiver may be requested.

D. Fee Exemptions

The fee-setting authority under INA section 286(m), 8 U.S.C. 1356(m), authorizes DHS to set its fees for adjudication and naturalization services at a level to ensure recovery of the full costs of providing all such services. That provision does not require that USCIS charge a fee for all of its services, and it provides that USCIS may set fees at less than full cost or provide services for free. That authority necessarily means that DHS may fund or subsidize discounted or free USCIS operations through the fees charged to other unrelated filings. DHS has exercised its discretion to provide free services in a number of ways, such as by codifying “no fee,” $0 fee, or simply leaving the fee regulations silent and not codifying a fee for a particular service that it provides.

In addition, the current 8 CFR 103.7(d) provision provides that the USCIS Director may create an exemption from certain fees “for a case or specific class of cases that is not otherwise provided in this section, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law.” This authority is limited to the Director and may only be delegated to the USCIS Deputy Director.

An individual would not be permitted to independently submit a request to the USCIS Director to waive his or her fee. Previous USCIS Directors have used this authority to provide fee exemptions for specific categories and groups of immigrants.

Consistent with the discussion above about the TVPRA, no law requires USCIS to provide fee exemptions for any immigration category listed below. Application fees from other form types have always been used to fund the costs of processing fee-exempt filings.

See, e.g.,

81 FR 73295. Continuing to exempt these populations from paying associated fees would result in the costs of their requests being borne by the other proposed fees.

DHS proposes to clarify the Director's fee exemption provision in proposed 8 CFR 106.3(f) to specify that fee exemptions must be related to one of the following:

• Asylees;

• Refugees;

• National security;

• Emergencies or major natural disasters declared in accordance with 44 CFR part 206, subpart B;

This authority is proposed to extend only to a Presidential declaration of a major disaster or an emergency granted in accordance with 8 CFR part 206, subpart B.

• A diplomatic agreement or to further relations between the U.S. Government and other nations; or

• USCIS error.

Consistent with the proposed change to the Director's exemption criteria, DHS proposes to remove the fee exemptions for an initial request for an employment authorization document (Form I-765) for the following classifications:

• Citizen of Micronesia, Marshall Islands, or Palau;

• Granted Withholding of Deportation or Removal;

• Temporary Protected Status if the individual is filing an initial TPS application and is under 14 years of age or over 65 years of age; and

• Applicant for Asylum and Withholding of Deportation or Removal.

The proposed changes for asylum applicants and an Application for Asylum and Withholding of Deportation or Removal are discussed in a later section of this preamble, V.P.2. Fee for the Initial Application for Employment Authorization while an Asylum Claim is Pending.

DHS is proposing to continue to exempt the following categories that are consistent with the proposed criteria for a Director's exemption:

• Form I-102, Application for Replacement/Initial Nonimmigrant Arrival/Departure Document: Nonimmigrant military members of the U.S. Armed Forces, noncitizen participating in NATO or Partnership for Peace Military Program under the Status of Forces Agreement (SOFA).

• Form I-539, Application to Extend/Change Nonimmigrant Status: Noncitizen with Ambassador, Public Ministry, or Career Diplomatic or Consular Officer and their Immediate Family and Attendant or Servant (A-1, A-2, and A-3), Designated Principal Resident Representative of a Foreign Government and Immediate Family and Attendant or Servant (G-1, G-2, G-3, G-4, and G-5) or NATO nonimmigrants status (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, NATO-7, and NATO-8).

• Form I-765, Application for Employment Authorization: Asylees, refugees, noncitizens paroled as refugees, N-8 and N-9 Special Immigrants under INA sections 101(a)(27)(I)(i) and (L);

Victims of Severe Form of Trafficking in Persons (T-1); Victim of Qualifying Criminal Activity (U-1); dependents of Certain foreign national organizations and NATO; VAWA Self-Petitioner principal;

an applicant who filed USCIS Form I-485 on or after July 30, 2007, and before the effective date of this rule, and paid the Form I-485 fee; Taiwanese dependents of Taipei Economic and Cultural Representative Office TECRO E-1 employees.

N-8 is a parent of alien classed as SK3 (unmarried son or daughter of retired G-4 (international Organization Officer or Employee, or Immediate Family) and an N-9 is the child of Child of N-8 or SK1 (Retired International Organization Employee, SK2 (spouse of SKI-1), SK4 (unmarried son or daughter of G-3).

DHS notes that derivatives must pay the fees but are eligible to request a fee waiver.

1. Form I-765 Exemption Related to Asylees and Refugees

USCIS is continuing to provide a fee exemption for Form I-765, Application for Employment Authorization, for individuals who were granted asylum (asylees) or who were admitted as refugees. This long-standing policy is consistent with Article 17(1) of the 1951 Convention relating to the Status of Refugees (as incorporated in the 1967 Protocol relating to the Status of Refugees), which states in pertinent part “The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign

country in the same circumstances, as regards the right to engage in wage-earning employment.”

2. Exemptions Related to International Organization Officers and to Agreement Between the U.S. Government and Other Nations

Under the International Organization Immunities Act,

certain representatives of foreign governments may be entitled to enjoy some privileges, exemptions and immunities. USCIS has several forms that provide for NATO participants, ambassadors, and foreign government representatives, as described above. These groups of individuals are limited in number.

59 Stat. 669, 22 U.S.C. 288.

DHS believes that continuing to exempt these categories from the fees provides for consistency with agreements between the U.S. Government and another nation or nations, as well as concepts of reciprocity and good relations with other nations. Therefore, USCIS believes that continuing the policy to exclude these categories of applicants is appropriate to comply with agreements and promote good relations with other nations.

3. Exemptions Related to VAWA Benefit Requests and to T and U Nonimmigrant Status Categories

As previously discussed, TVPRA requires DHS to permit certain applicants to apply for fee waivers for “any fees associated with filing an application for relief through final adjudication of the adjustment of status.” DHS interprets “any fees associated with filing an application for relief through final adjudication of the adjustment of status” to mean that, in addition to the main benefit application, applicants must have the opportunity to request a fee waiver for any form associated with the main benefit application up to and including the adjustment of status application. The fees for the VAWA, T, and U categories for Form I-765 had previously been exempted because of the humanitarian nature of these programs and the likelihood that individuals who file requests related to the VAWA, T and U categories would qualify for a fee waiver if they request it. Thus it is more efficient to exempt that population from fees than to employ staff to review fee waiver requests that would usually be approved. Based on the same reasoning, USCIS will continue to provide a fee exemption for the Form I-765 for VAWA, T and U categories.

E. Changes to Biometric Services Fee

1. Incorporating Biometric Activities Into Immigration Benefit Request Fees

DHS proposes to incorporate the biometric services cost into the underlying immigration benefit request fees for which biometric services are applicable. Currently, a separate $85 biometric services fee may apply depending on the immigration benefit request

or other circumstances.

See

8 CFR 103.7(b)(1)(i)(C). USCIS provides tables, forms, instructions and other information to help individuals assess whether they need to pay the biometric services fee. USCIS rejects an application, petition, or request that fails to pay the separate biometric services fee, if it applies.

See

8 CFR 103.17(b). DHS proposes to incorporate the cost of biometric services into the underlying immigration benefit request fees to simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.

For a quick reference of the immigration benefit requests that currently require biometric services with the initial submission, see USCIS, Form G-1055,

Fee Schedule,

available at

https://www.uscis.gov/g-1055

DHS has broad statutory authority to collect biometric information when such information is “necessary” or “material and relevant” to the administration and enforcement of the INA.

See, e.g.,

INA secs. 103(a), 235(d)(3), 264(a); 8 U.S.C. 1103(a), 1225(d)(3), 1304(a). The collection, use, and reuse of biometric data are integral to identity management, excluding people with criminal backgrounds, investigating and addressing national security concerns, and maintaining program integrity.

In previous fee rules, USCIS evaluated the biometric activity cost as a single biometric service fee separate from the underlying application, petition, or request. In the FY 2016/2017 fee review, USCIS called the activity Perform Biometric Services.

See

81 FR 26913. USCIS clarified that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometric services fee.

See

81 FR 26917 and 81 FR 73325. There has been a single biometric services fee for many years, which includes four separate costs:

• FBI Name Checks;

• FBI fingerprints;

• Application Support Center (ASC) contractual support; and

• Biometric service management overall, including federal employees at the ASC locations.

In the FY 2019/2020 fee review, USCIS identified each of these four costs as distinct activities in the ABC model. These four activities replace the single biometric activity that USCIS used in previous fee reviews.

100

USCIS used volume estimates to allocate these costs to the proposed immigration benefit requests to which they generally apply. The biometric volume estimates were specific to the projected workload for FBI Name Checks, FBI fingerprints, and contractual support at the ASC locations. In most cases, these estimates use the average proportion of workload for each immigration benefit request over the last three years. If USCIS believed the average of the last three years did not reflect current plans, it used more recent data or other assumptions. These proportions of each biometric service to receipts can vary, because there is not always a one-to-one relationship between a specific benefit request and a biometric service. For example, USCIS may not require a new biometric collection at an ASC location if it resubmits existing, stored biometric information to the FBI. As another example, some immigration benefit requests, like adoption petitions and applications, require that all adults in a household submit biometric information.

See, e.g.,

8 CFR 204.310(a)(3)(ii) and 204.310(b). As such, a single adoption petition or application may require one or more adults to submit biometric information. Using biometric volumes specific to individual biometric activities enables USCIS to better forecast biometric costs. DHS proposes to incorporate biometric costs into IEFA immigration benefit request fees by using this biometric activity-specific information in the proposed fees.

See

proposed 8 CFR 106.2. DHS also proposes conforming edits elsewhere in its regulations to remove references to the separate biometric services fee.

See, e.g.,

proposed 8 CFR 204.5(p)(4), 204.310(a)(3)(ii), 212.19(e), 214.2(e)(23)(viii), 214.14(c)(1), 245.15 (h)(2), and 245a.12(d)(2).

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The single biometric service activity was called Perform Biometric Services in the FY 2016/2017 fee review.

See

81 FR 26913-4. Previously, USCIS called the activity Capture Biometrics.

See

75 FR 33459 and 72 FR 4897.

The proposed changes in this rule may assist USCIS when shifting to enterprise-wide

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