# U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-24366 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** November 14, 2019 - **Citation:** 84 FR 62280 ## Text 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 1 used to compute the immigration benefit request fees 2 and biometric fees 3 is a commercial product licensed to USCIS that may be accessed on-site, by appointment, by calling (202) 272-1969. 4 1 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. 2 Benefit request means any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit, whether such request is filed on a paper form or submitted in an electronic format, provided such request is submitted in a manner prescribed by DHS for such purpose. See 8 CFR 1.2. 3 DHS uses the terms biometric fees, biometric services fees, and biometric fee synonymously in this rule to describe the cost and process for capturing, storing, or using biometrics. 4 This proposed rule describes key inputs to the ABC model (for example, budget, workload forecasts, staffing, and completion rates), both here and in the supporting documentation. II. Executive Summary DHS proposes to adjust the USCIS fee schedule, which specifies the fee amount charged for each immigration and naturalization benefit request. 5 DHS last adjusted the fee schedule on December 23, 2016, by a weighted average increase of 21 percent. See 81 FR 73292 (Oct. 24, 2016) (final rule) (FY 2016/2017 fee rule). 5 For the purposes of this rulemaking, DHS is including all requests funded from the IEFA in the term “benefit request” or “immigration benefit request” although the form or request may not 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. 6 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. 6 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”) 7 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). 7 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 OMB Circular A-11, Preparation, Submission, and Execution of the Budget, section 20.7(d), (g) (June 29, 2018)), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/a11_2018.pdf (providing guidance on the FY 2020 budget and instructions on budget execution, offsetting collections, and user fees). DHS uses OMB Circular A-25 as general policy guidance for determining user fees for immigration benefit requests, with exceptions as outlined in section III.B. of this preamble. DHS also follows the annual guidance in OMB Circular A-11 if it requests appropriations to offset a portion of IEFA costs. 8 8 OMB Circulars A-25 and A-11 provide nonbinding internal Executive Branch direction for the development of fee schedules under the Independent Offices Appropriations Act (IOAA) and appropriations requests, respectively. See 5 CFR 1310.1. Although DHS is not required to strictly adhere to these OMB circulars in setting USCIS fees, DHS used the activity-based costing (ABC) methodology supported in Circulars A-25 and A-11 to develop the proposed fee schedule. Finally, this rule accounts for, and is consistent with, congressional appropriations for specific USCIS programs. FY 2018 appropriations for USCIS provided funding for only the E-Verify employment eligibility verification program. Congress provided E-Verify with $108.9 million for operations and support and $22.7 million for procurement, construction, and improvements. See Consolidated Appropriations Act, 2018, Public Law 115-66, div. F, tit. IV (Mar. 21, 2018) (DHS Appropriations Act 2018). The total E-Verify appropriation was $131.5 million in FY 2018. FY 2019 E-Verify appropriations are $109.7 million for operations and support, plus $22.8 million for procurement, construction, and improvements; the latter sum remains available until the end of FY 2021. See Consolidated Appropriations Act, 2019, Public Law 116-6, div. A, tit. IV (Feb. 15, 2019). DHS provides this information only for comparison to the IEFA. E-Verify is not included in this fee review budget because, generally, appropriations, not fees, fund E-Verify. In addition, Congress appropriated $10 million for the Citizenship and Integration Grant Program. Id. Together, the total FY 2019 appropriations for USCIS are $142.5 million. For the last several years, USCIS has had the authority to spend no more than $10 million for citizenship grants. The funding for the grant program came from the IEFA fee revenue or a mix of appropriations and fee revenue since 2013. 9 While Congress appropriated funds for grants in FY 2019, it did not reduce authorized IEFA spending to offset the change. As such, the $10 million previously budgeted for citizenship grants remains in the FY 2019/2020 IEFA fee review budget. 9 USCIS received $2.5 million for the immigrant integration grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113-76). USCIS did not receive appropriations for the immigrant integration grants program in FY 2015, FY 2016, FY 2017, and FY 2018. B. Full Cost Recovery Consistent with these authorities and sources, this proposed rule would ensure that USCIS recovers its full operating costs and maintains an adequate level of service in two ways: First, where possible, the proposed rule would set fees at levels sufficient to cover the full cost of the corresponding services associated with fairly and efficiently adjudicating immigration benefit requests. 10 DHS generally follows OMB Circular A-25, which “establishes federal policy regarding fees assessed for Government services and for sale or use of Government goods or resources.” OMB Circular A-25, User Charges (Revised), para. 6, 58 FR 38142 (July 15, 1993). A primary objective of OMB Circular A-25 is to ensure that federal agencies recover the full cost of providing specific services to users and associated costs. See id., para. 5. Full costs include, but are not limited to, an appropriate share of: 10 Section 286(m) of the Act, 8 U.S.C. 1356(m), provides broader fee-setting authority and is an exception from the stricter costs-for-services-rendered requirements of the Independent Offices Appropriations Act, 1952, 31 U.S.C. 9701(c) (IOAA). See Seafarers Int'l Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179 (D.C. Cir. 1996) (IOAA provides that expenses incurred by agency to serve some independent public interest cannot be included in cost basis for a user fee, although agency is not prohibited from charging applicant full cost of services rendered to applicant, which also results in some incidental public benefits). Congress initially enacted immigration fee authority under the IOAA. See Ayuda, Inc. v. Attorney General, 848 F.2d 1297 (D.C. Cir. 1988). Congress thereafter amended the relevant provision of law to require deposit of the receipts into the separate Immigration Examinations Fee Account of the Treasury as offsetting receipts to fund operations, and broadened the fee-setting authority. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Public law 101-515, sec. 210(d), 104 Stat. 2101, 2111 (Nov. 5, 1990). Additional values are considered in setting IEFA fees that would not be considered in setting fees under the IOAA. See 72 FR at 29866-7. • Direct and indirect personnel costs, including salaries and fringe benefits, such as medical insurance and retirement; • Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment; • Management and supervisory costs; and • Costs of enforcement, collection, research, establishment of standards, and regulation. Id. Secondly, this proposed rule would set fees at a level sufficient to fund overall requirements and general operations related to USCIS IEFA programs that are not associated with specific statutory fees or funded by annual appropriations, benefit requests fees that are statutorily set at a level below full cost, or benefit requests that are fee exempt, in whole or in part. As noted, Congress has provided that USCIS may set fees for providing adjudication and naturalization services at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. See INA section 286(m), 8 U.S.C. 1356(m). 11 DHS interprets this statutory fee-setting authority, including the authorization to collect “full costs” for providing “adjudication and naturalization services,” as granting DHS broad discretion to include costs other than OMB Circular A-25 generally provides. See OMB Circular A-25, para. 6d1; INA section 286(m), 8 U.S.C. 1356(m). In short, DHS may charge fees at a level that will ensure recovery of all direct and indirect costs associated with providing immigration adjudication and naturalization services. 12 11 Congress has provided separate, but similar, authority for establishing USCIS genealogy program fees. See section 286(t) of the Act, 8 U.S.C. 1356(t). The statute requires that genealogy program fees be deposited into the Immigration Examinations Fee Account and that the fees for such research and information services may be set at a level that will ensure the recovery of the full costs of providing all such services. Id. The methodology for calculating the genealogy program fees is discussed in a separate section later in this preamble. 12 Congress has not defined either term with any degree of specificity for purposes of subsections (m) and (n). See, e.g., Barahona v. Napolitano, No. 10-1574, 2011 WL 4840716, at **6-8 (S.D.N.Y. Oct. 11, 2011) (“While the term `full costs' appears self-explanatory, section 286(m) contains both silence and ambiguity concerning the precise scope that `full costs' entails in this context.”); see also King v. 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 v. 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 13 and the Office of Citizenship, 14 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). 13 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. 14 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; 15 and (3) make additional adjustments to effectuate specific policy objectives. 16 15 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. 16 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 v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). 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), 17 17 INA sec. 286(m), (n) & (u); 8 U.S.C. 1356(m), (n) & (u). • The Fraud Prevention and Detection Account, 18 and 18 INA secs. 214(c)(12)-(13), 286(v); 8 U.S.C. 1184(c)(12)-(13) 1356(v). • The H-1B Nonimmigrant Petitioner Account. 19 19 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). 20 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. 20 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) 21 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. 21 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. 22 Title Fee G-1041 Genealogy Index Search Request $65 G-1041A Genealogy Records Request 65 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 23 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) 24 930 I-192 Application for Advance Permission to Enter as Nonimmigrant 25 930/585 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) 26 750 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) 27 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 28 285/570 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 29 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 85 IV. FY 2019/2020 Immigration Examinations Fee Account Fee Review 22 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. 23 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)( 2 ) and ( 3 ). 24 Form I-191 was previously titled Application for Advance Permission to Return to Unrelinquished Domicile. See 8 CFR 103.7(b)(1)(i)(O). 25 The Form I-192 fee remained $585 when filed with and processed by CBP. See 8 CFR 103.7(b)(1)(i)(P). 26 This reduced fee is applied to “an applicant under the age of 14 years when [the application] is (i) submitted concurrently with the Form I-485 of a parent, (ii) the applicant is seeking to adjust status as a derivative of his or her parent, and (iii) the child's application is based on a relationship to the same individual who is the basis for the child's parent's adjustment of status, or under the same legal authority as the parent.” 8 CFR 103.7(b)(1)(i)(U)( 2 ). 27 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).” 28 Currently there are two USCIS fees for Form I-881: $285 for individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)( 1 ). DOJ's Executive Office for Immigration Review (EOIR) has a separate $165 fee. 29 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 30 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. 30 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. 31 31 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. 32 32 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. 33 33 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 $3,408.2 $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. 34 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. 34 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 35 in the USCIS ABC model. 35 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 0 −18 I-690 Application for Waiver of Grounds of Inadmissibility 21 30 9 I-694 Notice of Appeal of Decision 39 10 −29 I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) 91 100 9 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 68 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 41 4 −37 N-336 Request for a Hearing on a Decision in Naturalization Proceedings 4,666 4,700 34 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 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). 36 Some immigration benefit request volumes include estimated fee-paying volumes from CBP. 37 36 See section V.C. Fee Waivers of this preamble for more information on the proposed changes. 37 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 0 0 0 I-690 Application for Waiver of Grounds of Inadmissibility 17 25 8 I-694 Notice of Appeal of Decision 39 10 −29 I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) 91 100 9 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 22 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 68 I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 257 1012.5 756 N-300 Application to File Declaration of Intention 36 4 −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 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. 38 Previous proposed IEFA fee schedules referred to limited fee increases as “low volume reallocation” or “cost reallocation.” 39 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. 40 For this proposed rule, USCIS calculated a limited fee increase of 5 percent using the same methodology as the previous rule. 41 38 See footnotes 15 and 16. 39 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. 40 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. 41 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. 42 42 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. 43 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: 43 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. 44 Likewise, other funding sources are insufficient or unavailable. 45 Some of the proposed fees would be even higher without an increase to projected fee-paying receipts. 46 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. 44 See section IV.A.3., Costs and Revenue Differential, of this preamble. 45 See id. and section III. Basis for the Fee Review. 46 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. 47 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. 47 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. 48 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.) 48 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 49 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 50 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. 51 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. 49 See 8 CFR 244.17(a) (“Applicants for periodic re-registration must apply during the registration period provided by USCIS.”). 50 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). 51 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. 52 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; see also U.S. Government and Accountability Office (GAO) GAO-14-704G Standards for Internal Control in the Federal Government (2014). 53 The time that USCIS spends complying with payment processing requirements can be used to adjudicate cases. This proposed change would also permit USCIS to reduce administrative burdens and processing errors associated with fee payments. 52 Agencies may accumulate deposits less than $5,000 until they reach $5,000 or a given Thursday. U.S. Treasury, Treasury Financial Manual Vol 1, Part 5, Chapter 2000, https://tfm.fiscal.treasury.gov/v1/p5/c200.html . 53 Principal 10, Design Control Activities, states that management should control information processing and segregation of duties to reduce risk, and accurate and timely record transactions. GAO, Standards for Internal Control in the Federal Government (Sept. 10, 2014), https://www.gao.gov/assets/670/665712.pdf . DHS is also clarifying that fees are non-refundable regardless of the result of the immigration benefit request or how much time the request requires to be adjudicated. As provided in 8 CFR 103.2(a)(1) USCIS filing fees generally are non-refundable and must be paid when the benefit request is filed. As discussed fully in this rule, DHS is authorized to establish fees to recover the costs of providing USCIS adjudication and naturalization services. While the fees are to recover the processing costs of adjudications, the fees are due when filing an immigration benefit request before the request will be considered received and the requestor will receive a receipt date. See 8 CFR 103.2(a)(7)(ii)(D). A benefit request will be rejected if it is not submitted with the correct fee(s). Thus the fee is due at filing and is not refundable, regardless of how much time passed from filing to approval, or if the request is denied or approved. Nevertheless, USCIS has recently, greatly, expanded acceptance of credit cards for the payment of USCIS fees. To our misfortune, the increased acceptance of credit cards for the payment of USCIS fees has resulted in a sizeable increase in the number of disputes filed with credit card companies challenging the retention of the fee by USCIS. Disputes are generally filed by requestors whose request was denied, who have changed their mind about the request, or assert that the service was not provided or unreasonably delayed. Troublingly, USCIS loses many of these dispute because the credit card companies agree with the cardholder and have determined that USCIS fails to adequately warn the cardholder that the fee is not refundable and due regardless of the result or time required. As the dollar amount of fees paid with credit cards continues to increase, this result has the potential to have a significant negative fiscal effect on USCIS fee receipts. Therefore, DHS is proposing to clarify that fees will not be refunded no matter the result of the benefit request or how much time the adjudication requires. Proposed 8 CFR 103.2(a)(1). In the event that the bank that issues the credit card rescinds the payment of the fee to USCIS, USCIS reserves the authority to invoice the responsible party (applicant, petitioner, requestor) and pursue collection of the unpaid fee in accordance with 31 CFR 900-904 (Federal Claims Collection Standards). B. Eliminate $30 Returned Check Fee DHS also proposes to amend its regulations to remove the $30 charge for dishonored payments. See 8 CFR 103.7(a)(2)(i). USCIS data indicates that the cost of collecting the $30 fee outweighs the benefits to the government derived from imposing and collecting the fee. For example, in FY 2016, USCIS collected a total of $416,541 from the $30 returned check fee while the financial service provider billed $508,770 to collect the $30 fee. Furthermore, USCIS does not retain the $30 fee for deposit into the IEFA with other immigration benefit request fees; thus the $30 fee does not provide revenue to USCIS. Agencies may prescribe regulations establishing the charge for a service or thing of value provided by the agency. See 31 U.S.C. 9701. However, federal agencies are not required to impose fees as a general matter, nor does DHS or USCIS have a specific statutory authorization or requirement to do so. Therefore, DHS is not required to charge a returned check fee. DHS proposes to remove the $30 fee from regulations. C. Fee Waivers 1. Background Currently, USCIS may waive the fee for certain immigration benefit requests when the individual requesting the benefit is unable to pay the fee. See 8 CFR 103.7(c). To request a fee waiver, the individual must submit a written waiver request for permission to have their benefit request processed without payment. Under the current regulation, the waiver request must state the person's belief that he or she is entitled to or deserving of the benefit requested and the reasons for his or her inability to pay and include evidence to support the reasons indicated. See 8 CFR 103.7(c)(2). There is no appeal of the denial of a fee waiver request. See id. The statute authorizing USCIS to establish fees does not specifically mention fee waivers and fee exemptions for any type of applicant or group, or any criteria for fee waivers. 54 The statute does not require that DHS provide certain services for free, but it authorizes DHS to set USCIS fees at a level that will recover the full costs of adjudication and naturalization services provided “including the costs of similar services provided without charge to asylum applicants or other immigrants.” 55 DHS interprets that provision as authorizing it to provide certain services for free in all cases in the form of fee exemptions, 56 or free when certain criteria are met in the form of a waiver. DHS has always implemented fee waivers based on need, and since 2007, has precluded fees waivers for individuals that have financial means as a requirement for the status or benefit sought. See 72 FR 4912. However, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) 57 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.” 58 DHS interprets “any fees associated with filing an application for relief through final adjudication of the adjustment of status” 59 to mean that, in addition to the main immigration benefit request that accords a status, (such as Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant or Form I-485, Application to Register Permanent Residence or Adjust Status) 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. 60 Table 7 lists the immigration categories for which DHS must provide an opportunity to request a fee waiver for main immigration benefit requests and associated forms in accordance with TVPRA. 61 54 USCIS is primarily funded by application and petition fees. Under INA 286(m), 8 U.S.C. 1356(m), DHS has the authority to establish the fees it charges for immigration and naturalization services to recover the full costs of such services, including those provided without charge, and to recover costs associated with the administration of the fees collected. Therefore, the fees are set at a level that is intended to recover the full cost of USCIS operations. 55 See INA sec. 286(m), 8 U.S.C. 1356(m). 56 See, e.g., proposed 8 CFR 106.2(a)(45) and (46) (codifying no fee for an Application for T Nonimmigrant Status and Petition for U Nonimmigrant Status ). 57 See title II, subtitle A, sec. 201(d)(3), Public Law 110-457, 122 Stat. 5044 (2008); INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). 58 See id. 59 See id. 60 Certain USCIS forms are not listed in 8 CFR 103.7(b) and therefore have no fee. See proposed 8 CFR 106.2 for proposed fees. 61 INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7). Table 7—Statutory Fee Waiver Categories and Associated Forms Category Main immigration benefit requests 62 Associated forms Violence Against Women Act (VAWA) self-petitioners. 63 • 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. 64 • 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). 65 Victims of Severe Form of Trafficking (T visas). 66 • 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). 67 • 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. 68 • 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). 69 • 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. 70 • 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). 62 Some immigration benefit requests may not have a fee for the specific category. 63 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. 64 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. 65 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. 66 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). 67 See INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U) (U nonimmigrant status for victims of certain criminal activity). 68 See INA sec. 106, 8 U.S.C. 1105a. 69 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). 70 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. 71 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: 72 71 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. 72 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 73 and corresponding policy guidance in the USCIS Policy Manual 74 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: 73 The Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) app [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-24366. Public record. Not legal advice.