# Implementation of the Emergency Stopgap USCIS Stabilization Act > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-06742 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 30, 2022 - **Citation:** 87 FR 18227 ## Text DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 106 [CIS No. 2688-21; DHS Docket No. USCIS-2021-0011] RIN 1615-AC73 Implementation of the Emergency Stopgap USCIS Stabilization Act AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security. ACTION: Final rule. SUMMARY: The Department of Homeland Security (DHS) is amending DHS premium processing regulations to codify statutory changes made by the Continuing Appropriations Act, 2021 and Other Extensions Act (Continuing Appropriations Act). The Continuing Appropriations Act included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), which amended the Immigration and Nationality Act (INA) by modifying U.S. Citizenship and Immigration Services' (USCIS) authority to provide premium processing services and to establish and collect premium processing fees for those services. This rule amends DHS premium processing regulations by updating the regulations to include the fees established by the USCIS Stabilization Act for immigration benefit requests that were designated for premium processing on August 1, 2020, and establishing new fees and processing timeframes consistent with section 4102(b) of the USCIS Stabilization Act. DATES: Effective Date: This rule is effective on May 31, 2022. The availability of premium processing for newly designated immigration benefit requests will be announced by USCIS in accordance with DHS premium processing regulations and will become available as stated at that time. Comment Date: DHS will only accept comments on the revised information collection Form I-907 described in the Paperwork Reduction Act section of this rule. Comments on the revised information collection must be received on or before May 31, 2022. This comment period applies to the Paperwork Reduction Act section of this rule only; it does not cover the substance of the regulatory changes, future policy associated with premium processing availability, or on any other topic related to this rulemaking beyond the proposed revisions to the impacted information collections. ADDRESSES: All comments on the information collection must be submitted through the Federal eRulemaking Portal: https://www.regulations.gov . The comments on the information collection must be identified by DHS Docket No. USCIS 2006-0025 and OMB Control Number 1615-0048. Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the information collection requirements and will not receive a response from DHS. Please note that USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions. Public comments submitted on matters related to this final rule, but not specifically associated with the revised information collections, will not be considered by DHS. FOR FURTHER INFORMATION CONTACT: Connie L. Nolan, Acting Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Summary of Costs and Benefits D. Summary of the Major Provisions of This Regulatory Action II. Background A. Current State of DHS Premium Processing Regulations B. History of DHS Premium Processing Regulations C. The USCIS Stabilization Act III. Discussion of the Changes IV. Statutory and Regulatory Requirements A. Administrative Procedure Act B. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) C. Regulatory Flexibility Act D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act) E. Unfunded Mandates Reform Act of 1995 F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. National Environmental Policy Act I. Family Assessment J. Paperwork Reduction Act Table of Abbreviations APA—Administrative Procedure Act BLS—Bureau of Labor Statistics CEQ—Council on Environmental Quality CFR—Code of Federal Regulations CPI—Consumer Price Index CPI-U—Consumer Price Index for All Urban Consumers CRA—Congressional Review Act DHS—Department of Homeland Security EB—Employment-Based E.O.—Executive Order FR—Federal Register FY—Fiscal Year GPO—Government Publishing Office ICE—Immigration and Customs Enforcement INA—Immigration and Nationality Act IT—Information technology NARA—U.S. National Archives and Records Administration NEPA—National Environmental Policy Act NIW—National Interest Waiver NPRM—Notice of Proposed Rulemaking OP&S—Office of Policy and Strategy OMB—Office of Management and Budget PRD—Policy Research Division Pub. L.—Public Law RFA—Regulatory Flexibility Act RIA—Regulatory Impact Analysis SBREFA—Small Business Regulatory Enforcement Fairness Act Secretary—Secretary of Homeland Security Stat.—U.S. Statutes at Large UMRA—Unfunded Mandates Reform Act of 1995 U.S.C.—U.S. Code USCIS—U.S. Citizenship and Immigration Services USCIS Stabilization Act—Emergency Stopgap USCIS Stabilization Act I. Executive Summary A. Purpose of the Regulatory Action The purpose of this rulemaking is to amend the DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act under section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. In 2000, Congress added new section 286(u) to the INA, 8 U.S.C. 1356(u), to permit the former Immigration and Naturalization Service to designate certain employment-based immigration benefit requests for premium processing subject to an additional fee. 1 At the time, Congress set the premium processing fee and authorized USCIS to adjust the fee for inflation, as determined by the Consumer Price Index for All Urban Consumers (CPI-U). 2 On this basis, USCIS established premium processing fees and timeframes for certain employment-based petitions, including Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Workers, in certain visa classifications. Petitioners and applicants request premium processing through filing Form I-907, Request for Premium Processing Service, and paying the appropriate fee. 3 1 See Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000); INA sec. 286(u) (2000), 8 U.S.C. 1356(u)(2000). 2 Id. 3 See 66 FR 29682 (Jun. 1, 2001); see also 8 CFR 103.7(b)(1)(i)(SS) and (e). On October 1, 2020, the Continuing Appropriations Act, which included the USCIS Stabilization Act, was signed into law. The USCIS Stabilization Act set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded DHS authority to establish and collect new premium processing fees, and to use those additional funds for expanded purposes. 4 4 See Emergency Stopgap USCIS Stabilization Act, Public Law 116-159, sec. 4102 (Oct. 1, 2020). B. Legal Authority The Secretary of Homeland Security's (Secretary) authority for regulatory amendments is found in various provisions of the INA, 8 U.S.C. 1101, et seq., and the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101, et seq. General authority for issuing this rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, and to establish such regulations as the Secretary deems necessary. In addition, section 286(u) of the INA, 8 U.S.C. 1356(u), provides the Secretary with authority to establish and collect a premium fee for the premium processing of certain immigration benefit types. The Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on October 1, 2020, contains the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act). 5 The USCIS Stabilization Act, among other things, set new fees for immigration benefit requests that were designated for premium processing on August 1, 2020, and expanded USCIS authority to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes, including to provide premium processing services to requestors, to make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors, to respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests, and to otherwise offset the cost of providing adjudication and naturalization services. 6 5 USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 6 See id. at sec. 4102. C. Summary of Costs and Benefits The USCIS Stabilization Act increased the fees for premium processing services already available, sets fees for and expands premium processing to additional immigration benefits requests, and provides specific purposes for the premium processing fees. 7 The fees may be used to provide the premium processing services; make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors; respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests; and otherwise offset the cost of providing adjudication and naturalization services. 8 This rule provides DHS with the opportunity to increase revenue in order to make infrastructure improvements and improve processing times, among other purposes. 7 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 8 See id. at sec. 4102(a)(codified as amended at 8 U.S.C. 1356(u)(4) (2020)). This expansion of electronic filing to application and benefit requests is a prerequisite so that the premium processing form, Form I-907 (which is not currently available electronically) could be filed electronically with the benefit request form for which premium processing is being requested. USCIS plans to encumber additional IT resources needed to make the I-907 available for electronic filing independent of this rule. USCIS intends to implement expansion of premium processing availability of Forms I-539, I-765 and I-140 as soon as feasible. DHS plans on a phased implementation strategy to allow current premium processing revenue to pay for development and implementation costs associated with expanding availability of the service. DHS plans to implement expansion for certain categories of Forms I-539, I-765 and both of the new I-140 classifications in FY 2022. DHS estimates that it will not be able to expand premium processing to the additional categories of Forms I-539 and I-765 until FY 2025 due to the possibility that premium processing revenues do not yet exist to cover any potential costs associated with expanding premium processing to these additional categories without adversely affecting the processing times of other immigration benefit requests, as directed by Congress. This is explained in greater detail in the “Government Costs” section below. The projected implementation plan will allow current premium processing revenue to cover potential costs from the expedited processing of a large volume of new requests. For the 10-year implementation period of the rule if year one is FY 2021, DHS estimates the annualized cost to be $13 million discounted at 3 percent and $12 million discounted at 7 percent. These costs are from the opportunity costs of time that newly eligible populations of Forms I-140, I-539, and I-765 will incur to request premium processing. For the 10-year implementation period of the rule, DHS estimates the annualized transfer payments from the Form I-129 and Form I-140 fee-paying population, and from newly eligible classifications of Form I-140 petitioners, Form I-539 applicants and Form I-765 applicants to DHS to be $743 million discounted at 3 percent and $729 million discounted at 7 percent due to the increase in filing fees. This final rule benefits petitioners of Form I-140 (EB-1, multinational executives and managers and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing, but will now be eligible following implementation of this final rule to request expedited review of their petitions. As a result, an adjudicative action would be taken more quickly. This change benefits businesses that previously would have had to wait longer to receive adjudicative action (such as a notice of approval) for an employee. It also benefits applicants of Form I-539 who will have the option to receive a decision on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Applicants of Form I-765 would benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would previously. D. Summary of the Major Provisions of This Regulatory Action This rule amends DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), as well as the preexisting timeframes for those immigration benefit requests that had been designated for premium processing as of August 1, 2020, and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. This rule further amends DHS premium processing regulations to codify the USCIS Stabilization Act's changes to the process for adjusting premium processing fees at section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), according to which such adjustments are permitted on a biennial basis consistent with certain changes to the Consumer Price Index for All Urban Consumers (CPI-U). 9 Finally, any additional changes made by this rule to revise DHS regulations at new 8 CFR 106.4 pertaining to premium processing 10 are made to be consistent with amendments made by the USCIS Stabilization Act. 9 When making the biennial adjustment for premium processing fees pursuant to 8 U.S.C. 1356(u)(3)(C), USCIS will use the Bureau of Labor and Statistics CPI-U All Items as the index for the adjustment. https://www.bls.gov/news.release/cpi.t01.htm (last visited Jan. 7, 2022). 10 Those regulations also track the language that existed at 8 CFR 103.7(b)(1)(i)(SS) and (e) on October 1, 2020 ( i.e., prior to the 2020 USCIS Fee Schedule Final Rule). II. Background A. Current State of DHS Premium Processing Regulations On November 14, 2019, DHS published the proposed rule, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” in the Federal Register proposing to adjust certain immigration and naturalization benefit request fees charged by USCIS. 11 On August 3, 2020, DHS published the final rule with an effective date of October 2, 2020. 12 This effectively transferred DHS premium processing regulations from 8 CFR 103.7(b)(1)(i)(SS) and (e) to the new 8 CFR part 106, specifically 8 CFR 106.4, “Premium processing service.” 11 See 84 FR 62280 (Nov. 14, 2019). 12 U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788 (Aug. 3, 2020) (2020 Fee Schedule Final Rule). On September 29, 2020, the U.S. District Court for the Northern District of California granted a motion for a preliminary injunction and stay under 5 U.S.C. 705 of the 2020 Fee Schedule Final Rule in its entirety. 13 On October 8, 2020, the U.S. District Court for the District of Columbia also granted a motion for a preliminary injunction and stay under 5 U.S.C. 705 of the 2020 Fee Schedule Final Rule. 14 And, on January 29, 2021, DHS published a notification of preliminary injunction in the Federal Register to inform the public of the two preliminary injunctions of the 2020 Fee Schedule Final Rule. 15 The Department continues to comply with the terms of those orders and is not enforcing the regulatory changes set out in the 2020 Fee Schedule Final Rule. 13 Immigrant Legal Resource Center v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. Sept. 29, 2020) ( ILRC v. Wolf ). 14 See Northwest Immigrant Rights Project, et al., v. United States Citizenship and Immigration Services, et al. 496 F. Supp. 3d 31 (D.D.C. Oct. 8, 2020) ( NWIRP v. USCIS ). 15 See 86 FR 7493 (Jan. 29, 2021). Litigation in ILRC v. Wolf and NWIRP v. USCIS is currently stayed through February 14, 2022, to allow DHS to move forward through notice-and-comment rulemaking with a possible new USCIS fee schedule that would rescind and replace the changes made by the 2020 Fee Schedule Final Rule and establish new USCIS fees to recover USCIS operating costs. 16 16 See Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, U.S. Citizenship and Immigration Services Fee Schedule, available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68 (last visited Feb. 8, 2022). USCIS continued to accept the premium processing fees that were in place before October 2, 2020. On October 19, 2020, pursuant to the passage of the USCIS Stabilization Act, USCIS increased those premium processing fees that were in place at that time. 17 17 On October 16, 2020, USCIS issued a web alert notifying the public that USCIS would increase fees for premium processing, effective October 19, 2020, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Public Law 116-159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020). Although DHS is enjoined from implementing or enforcing the 2020 Fee Schedule Final Rule and the rule has been stayed, the regulatory amendments established by the 2020 Fee Schedule Final Rule were incorporated into the Code of Federal Regulations (CFR) on October 2, 2020, by operation of the rule's publication in the Federal Register and as the rule instructed. 18 In that regard, DHS has not implemented and is not administering the regulatory changes made by the 2020 Fee Schedule Final Rule, but rather continues to follow the premium processing regulations as provided in the versions of 8 CFR 103.7(b)(1)(i)(SS) and (e) as they existed until October 2, 2020. Nevertheless, 8 CFR part 106 and the other regulatory changes in the 2020 Fee Schedule Final Rule have been codified. Therefore, DHS is using this rule to revise all of the enjoined and stayed regulations pertaining to premium processing at 8 CFR 106.4. Notably, DHS will continue to calculate premium processing timeframes in calendar days rather than business days, as it did before the 2020 Fee Schedule Final Rule and as it continues to do under the terms of the injunctions. Other than superseding the regulatory text set forth by the 2020 Fee Schedule Final Rule related to calculating premium processing timeframes in business days and reverting back to the established USCIS practice of calculating premium processing timeframes using calendar days, all other regulatory changes are based upon those changes set forth in the USCIS Stabilization Act. 18 See, e.g., 8 CFR part 106. Because the entirety of 8 CFR part 106, including 8 CFR 106.4, is enjoined and stayed, and the previous DHS premium processing regulations at 8 CFR 103.7(b)(1)(i)(SS) and (e) were removed, DHS will amend 8 CFR 106.4 by revising it in its entirety. This will avoid any confusion as to which DHS premium processing regulations are current and make it clear to the public that the DHS premium processing regulations are wholly contained in 8 CFR 106.4, available as a current reference, and being followed by DHS. Legal citations to the changes being made to DHS premium processing regulations in this preamble will cite to “8 CFR 106.4” to comport with the current location of the regulations in the CFR. However, because 8 CFR part 106 has been enjoined and stayed, has not been implemented, and is not being administered by USCIS, the standard of citing to the CFR print edition date may be inaccurate. Therefore, in this rule, when DHS references the no longer existing (but still being followed) 8 CFR 103.7(b)(1)(i)(SS) and (e), DHS will refer to these regulations as they appeared in the CFR on October 1, 2020, and denote by reference to that date in any legal citation ( e.g., 8 CFR 103.7(b)(1)(i)(SS) or (e) (Oct. 1, 2020)). B. History of DHS Premium Processing Regulations The District of Columbia Appropriations Act of 2001 added section 286(u) to the INA, 8 U.S.C. 1356(u), authorizing the collection of a $1,000 “premium fee,” in addition to the regular filing fee, from persons seeking expedited processing of eligible employment-based petitions and applications. 19 Based upon this statutory authority, the former Immigration and Naturalization Service issued an interim rule establishing its premium processing service on June 1, 2001. 20 Premium processing allows filers to request 15-day processing of certain employment-based immigration benefit requests if they pay a premium processing fee in addition to the base filing fee and any other applicable fees. 21 This premium processing fee cannot be waived. 22 Premium processing is currently available for certain petitioners filing a Form I-129, Petition for a Nonimmigrant Worker, or a Form I-140, Immigrant Petition for Alien Workers, and seeking certain employment-based classifications. USCIS informs the public by announcements on its website of the dates of availability of premium processing service for specific petitions or applications. 23 19 See District of Columbia Appropriations Act of 2001, Public Law 106-553, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000). 20 See 66 FR 29682 (Jun. 1, 2001). 21 See 8 CFR 103.7(b)(1)(i)(SS) and (e) (Oct. 1, 2020). 22 See 8 CFR 103.7(b)(1)(i)(SS)(3) (Oct. 1, 2020). 23 See 8 CFR 103.7(b)(1)(i)(SS) and (e) (Oct. 1, 2020); s ee also USCIS, “How Do I Request Premium Processing?,” https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated Apr. 12, 2021). The INA as amended by the District of Columbia Appropriations Act of 2001 provided that premium processing revenue shall be used to fund the cost of offering the service, as well as the cost of infrastructure improvements in adjudications and customer service processes. The INA as amended by the District of Columbia Appropriations Act of 2001 further provided USCIS with explicit authority to adjust the premium processing fee for inflation based on the CPI-U. 24 As such, DHS has periodically adjusted the premium processing fee by the percentage increase in inflation according to the CPI since premium processing's inception. 25 DHS first adjusted the premium processing fee from $1,000 to $1,225 in the 2010 USCIS fee rule. 26 Prior to the USCIS Stabilization Act, DHS last adjusted the premium processing fee to $1,440 in December 2019. 27 24 See INA sec. 286(u) (2000), 8 U.S.C. 1356(u) (2000); Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000). 25 The CPI is issued by the Department of Labor's Bureau of Labor Statistics (BLS) and can be found at http://www.bls.gov/cpi (last visited Jan. 7, 2022). 26 See USCIS Fee Schedule; Final Rule, 75 FR 58962, 58978, 58988 (Sept. 24, 2010) (Between June 2001, when Congress established the fee, and June 2010, the CPI-U [All Items] increased by 22.45%. When that percentage increase is applied to the current premium processing fee of $1,000, the adjusted premium processing fee is $1,224 ($1,225 when rounded to the nearest $5.); 8 CFR 103.7(b)(1)(i)(RR) (effective Nov. 23, 2010, codified as amended at 8 CFR 103.7(b)(1)(i)(SS), 81 FR 73292, 73331 (Oct. 24, 2016)). 27 See Adjustment to Premium Processing Fee; Final Rule, 84 FR 58303, (Oct. 31, 2019) (Between June 2001 and August 2019, the CPI-U [All Items] increased by 44.13 percent. When this percentage increase is applied to the June 2001 premium processing fee of $1,000, the adjusted premium processing fee is $1,441.34 ($1,440 when rounded to the nearest $5 increment.); 8 CFR 103.7(b)(1)(i)(SS) (effective Dec. 2, 2019). C. The USCIS Stabilization Act On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act was signed into law. That enactment contains the USCIS Stabilization Act. 28 The USCIS Stabilization Act amended section 286(u) of the INA, 8 U.S.C. 1356(u), by raising the premium processing fees for immigration benefit types designated for premium processing on or before August 1, 2020, and by expanding the benefit types that may be designated for premium processing service within prescribed limitations, among other changes. 29 These additional changes included redefining the process for adjusting premium processing fees by the CPI and expanding the permissible uses of revenue from the collection of premium processing fees, including improvements to adjudications process infrastructure, responses to adjudication demands, and to otherwise offset the cost of providing adjudication and naturalization services. 28 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 29 On May 23, 2006, USCIS issued an interim rule changing the premium processing regulations. See 71 FR 29571. Under that rule, USCIS would designate petitions and applications for premium processing by publication of notices in the Federal Register . That same day, USCIS designated Forms I-539 and I-765 for premium processing by a notice in the Federal Register . See 71 FR 29662. On September 24, 2010, USCIS changed the manner in which a form would be designated for premium processing. See 75 FR 58962. The 2010 rule provides that premium processing designation will be established through the USCIS website. Thus, for a form to be designated for premium processing it must be designated as such on the USCIS website. Forms I-539 and I-765 have not been designated for premium processing on the USCIS website since the 2010 rule became effective and so were not designated on August 1, 2020, nor did USCIS provide premium processing for Forms I-539 and I-765 on or before August 1, 2020. Thus, Forms I-539 and I-765 are not covered by INA sec. 286(u)(3)(A), 8 U.S.C. 1356(u)(3)(A) (relating to “immigration benefit types designated as eligible for premium processing on or before August 1, 2020.”), as enacted by the USCIS Stabilization Act. USCIS interprets INA sec. 286(u)(3)(A), 8 U.S.C. 1356(u)(3)(A), to refer to immigration benefit requests that were designated pursuant to the premium processing regulations in effect at the time of the statute's enactment. USCIS believes this interpretation is supported by the fact that Congress specifically provided an appropriate fee and processing timeframe for Forms I-539 and I-765 in sec. 4102(b)(1) of the USCIS Stabilization Act, which provides an exception to 5 U.S.C. 553 in establishing an initial fee for those forms. Additionally, because sec. 4102(b)(1) of the USCIS Stabilization Act only applies to INA sec. 286(u)(3)(B) and to those immigration benefit requests designated for premium processing after August 1, 2020, it is clear that Congress intended for Forms I-539 and I-765 to fall under those immigration benefit requests described in INA sec. 286(u)(3)(B) and not INA sec. 286(u)(3)(A). On October 16, 2020, USCIS announced it would increase the fees for premium processing, as required by the USCIS Stabilization Act, effective October 19, 2020. 30 As of that date, the fee for Form I-907, Request for Premium Processing Service, increased from $1,440 to $2,500 for all immigration benefit requests that were designated for premium processing as of August 1, 2020, with the exception that the premium processing fee for petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status increased from $1,440 to $1,500. USCIS further announced that, while the USCIS Stabilization Act gave USCIS the ability to expand premium processing to additional forms and immigration benefit requests, USCIS was not yet taking such action and that any expansion of premium processing to other forms would be implemented as provided in the legislation. 31 30 See USCIS, Premium Processing Fee Increase Effective Oct. 19, 2020, https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020). 31 Id. Through this rulemaking, DHS is amending DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act through enactment of section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), as well as the preexisting timeframes for those immigration benefit requests that were designated for premium processing as of August 1, 2020, and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. DHS is also amending DHS premium processing regulations to codify the USCIS Stabilization Act's changes made at section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), to the process for adjusting premium processing fees, according to which such adjustments are permitted on a biennial basis consistent with certain changes to the CPI-U. III. Discussion of the Changes Prior to the USCIS Stabilization Act, premium processing provided expedited processing for certain designated classifications that are requested on Form I-129 and Form I-140. 32 USCIS had the authority to designate the classifications of employment-based immigration benefit requests that were eligible for premium processing by announcing on its official internet website ( http://www.uscis.gov ) those immigration benefit requests for which premium processing was available, the dates upon which such availability commenced or ended, and any conditions that applied. Also prior to the USCIS Stabilization Act, the fee and processing timeframes for premium processing were uniform for all designated immigration benefit requests. Specifically, USCIS guaranteed processing for these requests within 15 days to petitioners who chose to pay the additional fee to request this service. The 15-day period would generally begin when USCIS properly received the correct version of Form I-907, Request for Premium Processing Service, with fee, at the correct filing address. Within the 15-day period, USCIS would issue either an approval notice, denial notice, notice of intent to deny, or request for evidence, or open an investigation for fraud or misrepresentation. If USCIS did not take any of the above actions within the 15-day period, USCIS would refund the premium processing fee. If the benefit required the submission of additional evidence or a response to a notice of intent to deny, a new 15-day period would begin when USCIS received a complete response to the request for evidence or notice of intent to deny. The premium processing fee was required to be paid in addition to, and in a separate remittance from, other filing fees, and could not be waived. Finally, the premium processing fee amount could be adjusted annually by notice in the Federal Register based on inflation according to the CPI. 32 A list of immigration benefit requests available for premium processing and when those immigration benefit requests became available for premium processing can be found on USCIS's web page, “How Do I Request Premium Processing?,” https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated Apr. 12, 2021). While leaving in place the general concept and framework for premium processing that existed prior to its enactment, the USCIS Stabilization Act made significant changes to the INA, amending significant aspects of premium processing that had previously been established by regulation. While maintaining DHS's authority to set reasonable conditions or limitations on premium processing, the USCIS Stabilization Act expanded the immigration benefit types that can be designated for premium processing, to wit: applications to change or extend nonimmigrant status and applications for employment authorization (generally on Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization, respectively) as well as any other immigration benefit type that DHS deems appropriate for premium processing. 33 This expansion of premium processing to other immigration benefit types generally requires that the initial premium processing fee be established by regulation, with a detailed methodology supporting the proposed premium processing fee amount. 34 However, the USCIS Stabilization Act did identify specific immigration benefit requests to which premium processing could be expanded by final rule without regard to the provisions of 5 U.S.C. 553 as long as the established premium fee and required processing timeframe are consistent with the limitations described therein. 35 These immigration benefit requests and applicable fees and timeframes are: 33 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 34 See id. at sec. 4102(a)(codified as amended at 8 U.S.C. 1356(u)(3)(B) (2020)). 35 See id. at sec. 4102(b) (Oct. 1, 2020). • Form I-140 requesting EB-1 immigrant classification as a multinational executive or manager or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days; • Form I-539 requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and • Form I-765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days. 36 36 Id. The primary purpose of this rule is to add these specific benefit types as those designated for premium processing in DHS regulations with both a premium processing fee and required processing timeframe, consistent with the exemption from 5 U.S.C. 553, while further reconciling the premium processing regulations with the other changes made by the USCIS Stabilization Act. In the Executive Orders 12866 and 13563 section of this rule, DHS estimates the number of newly eligible I-140 petitioners, I-539 applicants, or I-765 applicants that may choose to submit a premium processing request. However, as further discussed in section IV.B of this rule, it is difficult for DHS to determine the amount of time and resources specifically needed to accommodate these new requests for premium processing. Therefore, DHS has set the premium processing fees and timeframes for the newly eligible immigration benefit requests to be consistent with the fees and maximum processing timeframes set forth by Congress in section 4102(b)(1) of the USCIS Stabilization Act. As provided by section 4102(b)(2) of the USCIS Stabilization Act and as codified in the new 8 CFR 106.4(f)(2)(ii), the premium processing timeframe for the immigration benefit requests identified in section 4102(b) of the USCIS Stabilization Act will commence on the date that all prerequisites for adjudication, the form prescribed by USCIS, and fee(s) are received by USCIS. DHS is not codifying a definition of the phrase “prerequisites for adjudication” in this rule and will determine when the timeframe begins based on the benefit request and what is required to fully adjudicate it, consistent with otherwise applicable regulations. USCIS has been unable to offer premium or expedited services for many of its adjudication and naturalization services because of the difficulty in determining the appropriate fee, staffing levels, time period for adjudication, and other parameters. The USCIS Stabilization Act recognized that it is the requestor's responsibility to provide a complete request before premium processing can begin and that there is inherent ambiguity in defining the appropriate timeframe. DHS interprets “prerequisites for adjudication” in section 4102(b) to at least require a complete, fully executed form as prescribed and required by 8 CFR 1.2 and 8 CFR 103.2(a)(7), completed in accordance with the form instructions as required by 8 CFR 103.2(a)(1), and other filing requirements as may be provided in the applicable regulations for the specific benefit request, including receiving all necessary evidence and information from interviews, biometrics submission, and background checks. USCIS may specify additional prerequisites that determine when the timeframe begins when it announces those requests for which premium processing may be requested and any conditions that may apply under 8 CFR 106.4(g). The USCIS Stabilization Act also established distinct premium processing fees and the authority to establish distinct premium processing timeframes based upon the specific immigration benefit request. 37 With respect to an immigration benefit type designated for premium processing before August 1, 2020, the premium fee was set at $2,500, except that the premium fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status was set at $1,500. 38 This rule codifies these changes by specifically defining the premium processing fee and the premium processing timeframe for those immigration benefit types that were designated for premium processing before August 1, 2020. As maintained in the new 8 CFR 106.4(f)(2)(i), the premium processing timeframe for these benefits requests will commence on the date that the form prescribed by USCIS and fee(s) are received by USCIS. 37 See id. at sec. 4102(b). 38 See id. at sec. 4102(a)(codified as amended at 8 U.S.C. 1356(u)(3)(A) (2020)). The USCIS Stabilization Act also amended the INA by adding section 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C), which adjusts the frequency and the manner in which USCIS may periodically adjust the fees for premium processing. 39 The statute now provides that the Secretary may adjust these fees on a biennial basis by the percentage (if any) of the CPI-U 40 for the month of June preceding the date on which such adjustment takes effect exceeds the CPI-U for the same month of the second preceding calendar year. 41 Adjustments to the premium processing fees made in this manner are specifically exempted from notice-and-comment rulemaking. 42 These changes have been codified at new 8 CFR 106.4(d). DHS will maintain its practice of announcing adjustments to the premium processing fees that are not subject to notice and comment (and made pursuant to section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C)) through publication in the Federal Register . 43 39 See id. at sec. 4102(a)(codified as amended at 8 U.S.C. 1356(u)(3)(C) (2020)). 40 See sup ra note 9. 41 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 42 Id. 43 See 8 CFR 103.7(b)(1)(i)(SS)( 2 ) (Oct. 1, 2020); See new 8 CFR 106.4(d). The premium processing regulations require USCIS to communicate which immigrant benefit requests are available for premium processing, the dates upon which availability commences and ends and any conditions that may apply to seeking a request for premium processing. 44 USCIS will maintain this practice. In order to provide USCIS with the flexibility to be adequately responsive to changing customer demands and resource constraints, new 8 CFR 106.4(g) draws on the previous process that USCIS used to announce when premium processing is available and may be requested. 45 In particular, USCIS will announce by its official website those requests for which premium processing of designated benefits is available, the dates when such availability commences or ends, and any conditions that may apply. 46 Such conditions may include establishing a prerequisite to eligibility for the underlying immigration benefit request, as is the case currently where USCIS will only accept a request for premium processing on a petition for temporary nonimmigrant religious worker (R-1 visa) after there has been a successful onsite inspection. 47 Such conditions may also include establishing periods of pendency or specific filing dates necessary for phasing-in expanded premium processing for immigration benefit requests or delaying receipt dates for those immigration benefit requests subject to a numerical limitation (or cap) to determine whether a random selection process (or lottery) may be necessary and to complete such process when required. The use of such prerequisites and conditions is consistent with established USCIS premium processing practices as they existed prior to the USCIS Stabilization Act. 44 See 8 CFR 103.7(e)(3)(ii) (Oct. 1, 2020). 45 See 8 CFR 103.7(e)(3) (Oct. 1, 2020). 46 See new 8 CFR 106.4(g)(1). 47 See I-907, Request for Premium Processing Service—Special Instructions, https://www.uscis.gov/i-907 (last updated Sep. 30, 2021). Consistent with the USCIS Stabilization Act, new 8 CFR 106.4(g) further clarifies that USCIS may suspend the availability of premium processing for certain immigration benefit requests if circumstances prevent the agency from being able to complete a significant number of such requests within the applicable processing timeframe. 48 New 8 CFR 106.4(g) also makes clear that the designation of a benefit request for premium processing and establishing the corresponding premium processing fees and timeframes, does not in itself permit a request for premium processing to be filed for an immigration benefit request, but that USCIS must also make premium processing available for each immigration benefit request type. By identifying and establishing those immigration benefit request types designated for premium processing in this rule and the corresponding fees and processing timeframes, consistent with the USCIS Stabilization Act, this rule will allow USCIS to offer and suspend premium processing for designated immigration benefit request types in reaction to customer needs and USCIS workload, when there are circumstances that prevent USCIS from completing the processing of a significant number of premium processing requests within the required timeframes and in accordance with the procedures codified at new 8 CFR 106.4(g). 48 See USCIS Stabilization Act, sec. 4102(a)(codified as amended at 8 U.S.C. 1356(u)(5)(A) (2020)), Public Law 116-159 (Oct. 1, 2020). See new 8 CFR 206.4(g)(2). Relatedly, the USCIS Stabilization Act requires that when DHS implements the availability of premium processing, or expands premium processing to new immigration benefit request types, DHS must ensure that such implementation or expansion does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated. 49 Before DHS can implement the expansion of premium processing provided in this rule, DHS must raise sufficient funds to ensure it has the staffing and information technology (IT) resources in place to expand premium processing availability to avoid increasing non-premium processing related processing times. The current processing times for the immigration benefit requests newly designated for premium processing exceed the proposed premium processing timeframes by many months as expected. 49 See USCIS Stabilization Act, sec. 4102(c), Public Law 116-159 (Oct. 1, 2020). DHS generally cannot reallocate staff to adjudicate these immigration benefit requests without adversely affecting processing times for other non-premium processing related immigration benefit requests. Therefore, DHS must hire and train new staff with revenue from current premium processing requests in order to expand expedited adjudication of premium processing consistent with the statutory requirement. Delayed implementation will allow USCIS to maintain a minimum premium revenue carryover balance. USCIS will use the carryover balance to ensure fiscal stability and fund infrastructure and process improvements, such as the expansion of premium services. For these reasons and circumstances, DHS will suspend the availability of premium processing for those immigration benefit requests newly designated for premium processing by this rule and will not make those immigration benefit requests newly designated by this rule immediately available for premium processing upon the effective date of this rule. In the 2020 Fee Schedule NPRM, DHS changed the way it calculated the 15-day premium processing clock from counting calendar days to counting business days. 50 DHS explained it was necessary to make this change, because of the frequency by which USCIS found it necessary to suspend premium processing for certain categories of employment-based petitions as a result of having to reassign officers to process long-pending non-premium filed petitions and to prevent a lapse in employment authorization for beneficiaries of Form I-129 extension of stay petitions. There were also instances when USCIS could not meet the 15-day premium processing requirement due to surges in petitions accompanied by premium processing requests, which resulted in USCIS having to refund the premium processing fees and incurring additional costs as a result. 51 50 See 8 CFR 106.4(a). 51 See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 FR 62280, 62311-12 (Nov. 14, 2019) (2020 Fee Schedule NPRM). In this rule, DHS is removing any reference to calculating premium processing timeframes in business days that were finalized in the 2020 Fee Schedule Final Rule. Following issuance of this rule, DHS intends to continue to calculate premium processing timeframes by counting calendar days. As previously discussed, the 2020 Fee Schedule Final Rule is enjoined and stayed, and the regulations as codified in 8 CFR 106.4 are not being administered by USCIS. Because the litigation in ILRC v. Wolf and NWIRP v. USCIS is currently stayed, and because DHS plans to replace the regulations codified by the 2020 Fee Schedule Final Rule with a new rule, the regulations currently at 8 CFR 106.4 have never been implemented. USCIS currently is not calculating premium processing timeframes in business days, consistent with the terms of the injunctions and stays. Rather, USCIS is calculating premium processing timeframes, as it has always done, by counting calendar days. By removing the reference to business days in the premium processing regulations, the premium processing regulations will be clear and consistent with current practices and requirements and not be a source of confusion to the public. 52 52 Counting premium processing timeframes by calendar days is also consistent with the definition of “day” in 8 CFR 1.2, which provides that when computing the period of time for taking any action [in chapter I of title 8 of the CFR] including the taking of an appeal, [it] shall include Saturdays, Sundays, and legal holidays, except that when the last day of the period computed falls on a Saturday, Sunday, or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday. IV. Statutory and Regulatory Requirements A. Administrative Procedure Act The Administrative Procedure Act (APA) generally requires agencies to issue a proposed rule before issuing a final rule, subject to certain exceptions. 53 As explained below, the changes made in this rule do not require advance notice and opportunity for public comment, because the changes are (1) exempt from the requirements of 5 U.S.C. 553 by section 4102(b)(1) of the USCIS Stabilization Act, (2) exempt from public comment under 5 U.S.C. 553(b)(B) because they merely restate existing law, or (3) exempt as procedural under 5 U.S.C. 553(b)(A). 53 See 5 U.S.C. 553(b). (1) Statutory Exemption From the Requirements of 5 U.S.C. 553 The USCIS Stabilization Act has exempted DHS from the requirements of 5 U.S.C. 553 when USCIS establishes fees that are consistent with section 4102(b) of the USCIS Stabilization Act. This exemption allows DHS to establish fees consistent with section 4102(b) of the USCIS Stabilization Act by final rule and does not require notice-and-comment rulemaking. 54 54 See USCIS Stabilization Act, sec. 4102(b)(1). (2) Statutorily Required Changes The USCIS Stabilization Act made statutory changes to section 286(u) of the INA, 8 U.S.C. 1356(u). 55 DHS has good cause to bypass notice-and-comment procedures when incorporating those nondiscretionary statutory changes made by the USCIS Stabilization Act to section 286(u) of the INA, 8 U.S.C. 1356(u), through conforming changes to the DHS premium processing regulations via this rulemaking. When regulations merely restate the statute they implement ( i.e., when the rule does not change the established legal order), the APA does not require the agency to use notice-and-comment procedures. See 5 U.S.C. 553(b)(B); Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. 1991); see also United States v. Cain, 583 F.3d 408, 420 (6th Cir. 2009) (contrasting legislative rules, which require notice-and-comment procedures, “with regulations that merely restate or interpret statutory obligations,” which do not); Komjathy v. Nat. Trans. Safety Bd., 832 F.2d 1294, 1296 (D.C. Cir. 1987) (when a rule “does no more than repeat, virtually verbatim, the statutory grant of authority” notice-and-comment procedures are not required). This exception to notice and comment applies to the portions of this rule that merely restate the fees for those immigration benefit types designated for premium processing on or before August 1, 2020 and the biennial fee adjustment. 56 This exception also applies to the portions of this rule that codify the clarification provided in section 4102(b)(2) of the USCIS Stabilization Act regarding when processing timeframes will commence for those benefit request types described in section 4102(b)(1) of the USCIS Stabilization Act and the manner in which USCIS may suspend premium processing services now codified in section 286(u)(5)(A) of the INA, 8 U.S.C. 1356(u)(5)(A). 57 55 See id. at sec. 4102(a). 56 See USCIS Stabilization Act, sec. 4102(a); new 8 CFR 106.4(c) and (d). 57 See new 8 CFR 106.4(f)(2)(ii) and (g). (3) Rule of Procedure This rule is also exempt, in its entirety, from the notice-and-comment requirements of 5 U.S.C. 553, because the rule's provisions are fundamentally procedural in nature. See 5 U.S.C. 553(b)(A). See generally Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (“Procedural rules do not themselves alter the rights or interests of parties, although they may alter the manner in which the parties present themselves or their viewpoints to the agency. The distinction between substantive and procedural rules is one of degree depending upon whether the substantive effect is sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA.” (cleaned up)). This rule describes the process and the procedures that USCIS will employ to make premium processing available to the public. This rule explains that there is premium processing for certain immigration benefit requests, how to submit a request for premium processing, those immigration benefits designated for premium processing and the associated fees, how fees will be adjusted, processing timeframes (including the reversion to calendar days), processing requirements and when fees will be refunded, and how USCIS will communicate the availability of premium processing to the public. This rule communicates the mechanics and processes that USCIS has deemed to be an efficient and practical way to manage and offer a service to those willing to pay a premium to have their immigration benefit requests processed in a more expeditious manner. B. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and to the extent permitted by law, to proceed if the benefits justify the costs. They also direct agencies to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). In particular, E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), has designated this final rule an economically significant regulatory action under sec. 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation. (1) Summary The Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on October 1, 2020, contained the Emergency Stopgap USCIS Stabilization Act, which set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded USCIS authority to establish and collect new premium processing fees and to use those additional funds for expanded purposes. The purpose of this rulemaking is to amend DHS premium processing regulations for previously designated benefit requests to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new immigration benefit requests designated for premium processing under section 286(u)(3)(B) of the INA, 8 U.S.C. 1356(u)(3)(B), consistent with those conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. While DHS is able to assess the costs and benefits of premium processing for the forms and classifications for which it is currently available, it is more difficult to assess when DHS will be able to expand the availability of premium processing to all of the newly designated immigration benefit request types. Due to the statutory requirement that the expansion of availability of premium processing should not result in increased processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated, DHS must first raise sufficient funds to ensure it has the staffing and information technology (IT) resources to expand premium processing availability to avoid such an increase to any processing times. The current (non-premium) processing times for the newly designated immigration benefit requests exceed the proposed premium processing timeframes by many months, as expected. DHS generally is unable to reallocate staff to adjudicate these immigration benefit requests without adversely affecting processing times for other immigration benefit requests. Therefore, DHS must hire and train new staff with revenue from current premium processing requests in order to expand expedited adjudication of premium processing consistent with the statutory requirement that other processing times not be adversely affected. Furthermore, Section 3401 of the Stabilization Act authorizes USCIS to use fee revenue for the following, competing purposes: To provide premium processing services to requestors, to make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors, to respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests, and to otherwise offset the cost of providing adjudication and naturalization services. Prior to expansion, any revenues in excess of costs generated by premium processing will be used to support other authorized uses. Section 3402 of the Stabilization Act additionally directs USCIS to provide a 5-year plan for improvements in electronic filing, electronic payment, and electronic correspondence resulting in improved processing times for all immigration and naturalization benefit requests. In accordance with these authorizations and directives, DHS has prioritized and is in the process of expanding electronic filing for all applications and benefit requests. Some of the immigration benefit requests newly designated for premium processing are already filed electronically. 58 58 USCIS Forms Currently Available to File Online: https://www.uscis.gov/file-online/forms-available-to-file-online (last updated Dec. 21, 2021). Of the forms impacted by this rule, USCIS already provides electronic filing of certain Forms I-539 and I-765. However, Form I-907 is not currently available for electronic filing. The expansion of electronic filing to application and benefit requests is a prerequisite so that the premium processing form, Form I-907, (which is not currently available electronically) could be filed electronically with the benefit request form for which premium processing is being requested. USCIS plans to encumber additional IT resources needed to make the I-907 available for electronic filing independent of this rule. USCIS intends to implement expansion of premium processing availability of Forms I-539, I-765 and I-140 as soon as feasible. DHS plans on a phased implementation strategy to allow current premium processing revenue to pay for development and implementation costs associated with expanding availability of the service. DHS plans to implement expansion for certain categories of Forms I-539, I-765 and both of the new I-140 classifications in FY 2022. DHS estimates that it will not be able to expand premium processing to the additional categories of Forms I-539 and I-765 until FY 2025 due to the possibility that premium processing revenues do not yet exist to cover any potential costs of hiring additional staff to expand premium processing to these additional categories without adversely affecting other benefit's processing times, as directed by Congress. This is explained in greater detail in the “Government Costs” section below. The projected implementation plan will allow current premium processing revenue to cover potential costs from the expedited processing of a large volume of new requests. For the 10-year implementation period of the rule if year one is FY 2021, DHS estimates the annualized cost to be $13 million discounted at 3 percent and $12 million discounted at 7 percent. These costs are from the opportunity costs of time that newly eligible populations of Forms I-140, I-539, and I-765 will incur to request premium processing. For the 10-year implementation period of the rule, DHS estimates the annualized transfer payments from the Form I-129 and Form I-140 fee-paying population, and from newly eligible classifications of Form I-140 petitioners, Form I-539 applicants and Form I-765 applicants to DHS to be $743 million discounted at 3 percent and $729 million discounted at 7 percent due to the increase in filing fees. This final rule benefits petitioners of Form I-140 (EB-1, multinational executives and managers and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing to receive a quicker adjudication. This change benefits businesses that previously would have had to wait longer to receive a decision (such as a notice of approval) for an employee. It also benefits applicants of Form I-539 who will have the option to receive a decision on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Applicants of Form I-765 would benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would have previously. Table 1 provides a more detailed summary of the final rule provisions and their impacts. Table 1—Summary of Provisions and Impacts of the Final Rule Final rule provisions Description of change to provision Estimated costs/transfers of provisions Estimated benefits of provisions • Codify fee increases from the Continuing Appropriations Act, 2021 and Other Extensions Act. • The Continuing Appropriations Act, 2021 and Other Extensions Act, expanded USCIS authority to establish and collect new premium processing fees and to use those additional funds for expanded purposes. • Codifies existing premium processing fees and processing timeframes for certain classifications requested on Form I-129 classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2) and Form I-140 classifications: EB-1 Aliens of extraordinary ability, EB-1 Outstanding professors and researchers, EB-2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB-3 Skilled workers, EB-3 Professionals, EB-3 Workers other than skilled workers and professionals ($2,500/15 days). • Codifies existing premium processing fees and processing timeframes for certain classifications requested on Form I-129 classifications H-2B, R-1 ($1,500/15 days). Quantitative: Petitioners— • Annual transfer payments of $306,448,000 from Form I-129 petitioners to DHS from an increase in filing fees in FY 2021. • Annual estimated transfer payments of $295,113,180 from Form I-129 petitioners to DHS from a projected increase in filing fees in FY 2022 through FY 2030. • Annual transfer payments of $103,111,500 from Form I-140 petitioners to DHS from an increase in filing fees in FY 2021. • Annual estimated transfer payments of $82,872,920 from Form I-140 petitioners to DHS from a projected increase in filing fees in FY 2022 through FY 2030. DHS/USCIS— • None. Qualitative: Petitioners— • None. DHS/USCIS— • None. Quantitative: Petitioners— • None. DHS/USCIS— • None. Qualitative: Petitioners— • None. DHS/USCIS— • The primary benefit of these provisions to DHS is the opportunity to increase revenue in order to make infrastructure improvements and processing times, among other purposes. • Expansion of premium processing to Form I-140 Classifications: E13, E21 (NIW). • Establishes a $2,500 premium processing fee and 45-day processing timeframe for newly eligible Form I-140 Classifications: EB-1, multinational executives and managers, and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver. Quantitative: Petitioners— • Cost to petitioners completing and filing Form I-907 requests will be approximately $2,934,568 annually in FY 2022 through FY 2030. • Annual transfer payments of $94,427,500 from newly eligible Form I-140 petitioners to DHS due to filing fees in FY 2022 through FY 2030. DHS/USCIS— • None. Qualitative: Petitioners— • None. DHS/USCIS— • None. Quantitative: Petitioners— • None. DHS/USCIS— • None. Qualitative: Petitioners— • Petitioners requesting benefit requests that were not previously designated for premium processing may now be able to obtain quicker adjudicative action. DHS/USCIS— • The primary benefit of this provision to DHS is the opportunity to increase revenue in order to make infrastructure improvements and processing times, among other purposes. • Expansion of premium processing to Form I-539 Classifications: E-1, E-2, E-3, F-1, F-2, H-4, J-1, J-2, L-2, M-1, M-2, O-3, P-4, R-2. • Establishes a $1,750 premium processing fee and 30-day processing timeframe for newly eligible Form I-539 Classifications: E-1, E-2, E-3, F-1, F-2, H-4, J-1, J-2, L-2, M-1, M-2, O-3, P-4, R-2. Quantitative: Applicants— • Costs to F-1, F-2, J-1, J-2, M-1, M-2 classification applicants completing and filing Form I-907 requests are estimated to be $296,648 annually starting in FY 2022 through FY 2030. • Costs to E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classification applicants completing and filing Form I-907 requests are estimated to be $3,048,488 annually starting in FY 2025 through FY 2030. • Total Costs to all Form I-539 applicants completing and filing Form I-907 requests are estimated to be $3,345,136 annually starting in FY 2025 through FY 2030. • Annual estimated transfer payments of $17,939,250 from Form I-539 F-1, F-2, J-1, J-2, M-1, M-2 classification applicants completing and filing Form I-907 requests to DHS from filing fees in FY 2022 through FY 2030. Quantitative: Applicants— • None. DHS/USCIS— • None. Qualitative: Applicants— • Applicants requesting benefit requests that were not previously designated for premium processing may now be able to obtain quicker adjudicative action. DHS/USCIS— • The primary benefit of this provision to DHS is the opportunity to make infrastructure improvements and processing times, among other purposes. • Annual estimated transfer payments of $110,572,000 from Form I-539 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classification applicants completing and filing Form I-907 requests to DHS from filing fees starting in FY 2025 through FY 2030. • Total transfers from all Form I-539 applicants completing and filing Form I-907 requests are estimated to be $128,511,250 annually starting in FY 2025 through FY 2030. DHS/USCIS— • None. Qualitative: Applicants— • None. DHS/USCIS— • This final rule will require USCIS enhancements to handle the projected volumes of expedited requests without adverse impact to other processing times. • Expansion of premium processing to Form I-765 Categories. • Establishes a $1,500 premium processing fee and 30-day processing timeframe for newly eligible Form I-765 Categories. Quantitative: Applicants— • Costs to some applicants completing and filing Form I-907 requests are expected to be approximately $6,486,289 annually starting in FY 2022 through FY 2030 for certain classifications. • Costs to other applicants completing and filing Form I-907 requests are expected to be approximately $3,048,488 annually starting in FY 2025 through FY 2030 for certain classifications. Quantitative: Applicants— • None. DHS/USCIS— • None. Qualitative: Applicants— • Applicants requesting benefit requests that were not previously designated for premium processing will now be able to obtain quicker adjudicative action making those applicants eligible to work legally in the United States sooner than they would have previously. DHS/USCIS— • The primary benefit of this provision to DHS is the opportunity to make infrastructure improvements and processing times, among other purposes. • Total Costs to all Form I-765 applicants completing and filing Form I-907 requests are estimated to be $9,534,777 annually starting in FY 2025 through FY 2030. • Annual estimated transfer payments of $173,370,000 from some applicants completing and filing Form I-907 requests to DHS from filing fees in FY 2022 through FY 2030. • Annual estimated transfer payments of $81,483,000 from some applicants completing and filing Form I-907 requests to DHS from filing fees starting in FY 2025 through FY 2030. • Total transfers from all Form I-765 applicants completing and filing Form I-907 requests are estimated to be $254,853,000 annually starting in FY 2025 through FY 2030. DHS/USCIS— • None. Qualitative: Applicants— • None. DHS/USCIS— • This final rule will require USCIS enhancements to handle the projected volumes of expedited requests without adverse impact to other processing times. In addition to the impacts summarized above, and as required by OMB Circular A-4, Table 2 presents the prepared accounting statement showing the costs and benefits to each individual affected by this final rule. 59 59 White House, OMB, Circular A-4 (Sept. 17, 2003), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last viewed June 1, 2021). Table 2—OMB A-4 Accounting Statement [$ millions, FY 2020] Time Period: FY 2021 through FY 2030 Category Primary estimate Minimum estimate Maximum estimate Source citation BENEFITS Monetized Benefits N/A Regulatory Impact Analysis (“RIA”). Annualized quantified, but unmonetized, benefits N/A N/A N/A RIA. Unquantified Benefits The USCIS Stabilization Act provides specific purposes that the premium processing fees can be used for. Consistent with those permissible purposes, the primary benefit of this rule to DHS is the opportunity to increase revenue to provide the premium processing services; make infrastructure improvements in adjudications processes and information and services to immigration and naturalization benefit requestors; and respond to adjudication demands. RIA. This final rule benefits petitioners of Form I-140 (EB-1, multinational executives and managers and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing and may now have their petitions reviewed quicker. As a result, an adjudicative action may be taken more quickly. This change benefits businesses that previously would have had to wait longer to receive adjudicative action (such as a notice of approval) for an employee. It also benefits applicants of Form I-539 would receive an adjudicative action on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Applicants of Form I-765 would benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would have previously. COSTS Annualized monetized costs (7%) $12.2 N/A N/A RIA. Annualized monetized costs (3%) $12.7 N/A N/A Annualized quantified, but unmonetized, costs N/A Qualitative (unquantified) costs This final rule will require USCIS enhancements to handle the projected volumes of expedited requests without adverse impact to other processing times. DHS must hire and train new staff with revenue from current premium processing requests in order to expand expedited adjudication of premium processing consistent with the statutory requirement that other processing times not be adversely affected. DHS does not know how much it will cost to add new categories to apply for premium processing, and these costs are unquantified. The quantified transfers from Form I-129 and Form I-140 petitioners/applicants to DHS will result in higher revenue collected by USCIS. USCIS anticipates this additional revenue would cover any future expenditures required for staffing and training purposes. RIA. TRANSFERS Annualized monetized transfers (7%) $729.3 N/A N/A Annualized monetized transfers (3%) $743.2 N/A N/A From whom to whom? From the fee-paying petitioners of Form I-129 and Form I-140 to DHS. From whom to whom? Miscellaneous Analyses/Category Effects Source Citation Effects on State, local, or tribal governments None. RIA. Effects on small businesses None. RIA. Effects on wages None. None. Effects on growth None. None. (2) Background On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act, which contained the USCIS Stabilization Act, was signed into law. 60 The USCIS Stabilization Act amended section 286(u) of the INA, 8 U.S.C. 1356(u), to raise the premium processing fees for immigration benefit types designated for premium processing on or before August 1, 2020, and to expand the immigration benefit requests that may be designated for premium processing service within prescribed limitations, among other changes. 61 60 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). 61 Id. Through this rulemaking, DHS is amending DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new immigration benefit requests designated for premium processing under section 286(u)(3)(B) of the INA, 8 U.S.C. 1356(u)(3)(B), consistent with those conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. 62 62 Id. (3) Population USCIS' premium processing service currently allows petitioners to pay an additional filing fee to expedite the adjudication of certain employment-based immigration benefit requests. The Continuing Appropriations Act, which included the USCIS Stabilization Act, set new fees for the premium processing of immigration benefit requests designated for premium processing as of August 1, 2020, and provided authority to establish new immigration benefit requests designated for premium processing and the associated fees. 63 This final rule will codify the new fees from the USCIS Stabilization Act into regulation and impose costs related to the newly eligible population filing Form I-907, Request for Premium Processing Service, for those immigration benefit requests designated for premium processing by this rule. 63 Id. Table 3 shows the estimated total receipts received and refunds issued by USCIS for Form I-907 from fiscal year (“FY”) 2017 through FY 2021. During this period, total annual receipts for Form I-907 ranged from a low of 307,981 in FY 2017 to a high of 412,836 in FY 2019. Based on a 5-year annual average, DHS estimates the annual receipts for Form I-907 to be 365,521. In addition, the total number of refunds issued for Form I-907 decreased to 151 in FY 2021 from a high of 1,055 in FY 2017, with a 5-year annual average of 457 Form I-907 issued refunds. USCIS presents data on refunds issued by USCIS because USCIS currently guarantees processing for these requests within 15 days to petitioners who chose to pay the additional fee to request this service. The 15-day period generally begins when USCIS properly receives the correct version of Form I-907, Request for Premium Processing Service, with fee, at the correct filing address. Within the 15-day period, USCIS will issue either an approval notice, denial notice, notice of intent to deny, or request for evidence, or open an investigation for fraud or misrepresentation. If the benefit request requires the submission of additional evidence or a response to a notice of intent to deny, a new 15-day period begins when USCIS receives a complete response to the request for evidence or notice of intent to deny. The premium processing fee is required to be paid in addition to, and in a separate remittance from, other filing fees, and cannot be waived. If USCIS did not take any of the above actions within the 15-day processing service timeframe, USCIS refunds the premium processing fee. This rule allows USCIS up to 45-days for premium processing of Form I-140 requesting EB-1 immigrant classification as a multinational executive or manager or EB-2 immigrant classification as member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW) and allows USCIS up to 30 days for premium processing of Form I-539 and Form I-765. This change from the standard premium processing timeframe of 15 days reduces the risk that expansion of premium processing to new populations would result in a disproportionate increase in refunds beyond the levels shown in Table 3. This expansion in timeframe will not result in longer wait times for individuals requesting premium processing since the affected population is only a relatively small percentage of people whose adjudication would have required more time (0.1-percent) and therefore would have been refunded. As a result of this final rule, USCIS refunds will not increase for individuals requesting premium processing. Table 3—Form I-907, Request for Premium Processing Service, Receipts and Refunds Issued, FY 2017 Through FY 2021 FY Form I-907 receipts Form I-129 Form I-140 Total Form I-907 refunds * Form I-129 Form I-140 Total 2017 236,499 71,482 307,981 968 87 1,055 2018 292,294 78,215 370,509 123 101 224 2019 333,160 79,676 412,836 255 48 303 2020 276,052 64,264 340,316 499 51 550 2021 300,200 97,275 397,475 42 109 151 Total 1,438,205 390,912 1,829,117 1,887 396 2,283 5-year Average 287,641 78,182 365,823 377 79 457 Source: USCIS, OP&S PRD, CLAIMS3 and ELIS database, October 13, 2021. Notes: * The report reflects the most up-to-date data available at the time the system was queried. Any duplicate case information has been removed. Table 4 shows the percentage of the eligible Form I-140 petitioners who chose to submit a premium processing request from FY 2017 through FY 2021. The following classifications are currently designated for premium processing: EB-1 Aliens of extraordinary ability, EB-1 Outstanding professors and researchers, EB-2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB-3 Skilled workers, EB-3 Professionals, and EB-3 Workers other than skilled workers and professionals. 64 Currently not all Form I-140 petitioners are eligible for premium processing, therefore DHS only discusses the percentage of those who are eligible for premium processing compared to the total number of premium processing requests submitted. The population in Table 3 consist of all Form I-140 petitions that are submitted with a Form I-907. However, in FY 2020 of the 64,264 receipts 35,367 were ineligible and 28,897 were eligible. In FY 2020 there were 129,536 total receipts for Form I-140. Of those 64,501 are currently ineligible and 65,035 are eligible for premium processing. The 5-year annual average percentage of eligible Form I-140 petitioners who chose to submit a premium processing request was 52 percent. In FY 2021, there were significantly more Form I-140 petitions submitted compared to previous years; however, the percentage of Form I-140 petitions filed with a Form I-907 has stayed consistent over the past 5 years. 64 See “How Do I Request Premium Processing?” https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated Apr. 12, 2021). Table 4—Form I-140 Receipts Eligible for Premium Processing, FY 2017 Through FY 2021 FY Total Form I-140 petitions eligible for premium processing Total Form I-140 petitions submitted with Form I-907 Percentage of Form I-907 receipts 2017 60,255 32,674 54 2018 62,266 35,875 58 2019 70,218 34,898 50 2020 65,035 28,897 44 2021 112,070 58,359 52 Total 369,844 190,703 5-year Annual Average 73,969 38,141 52 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. Note: Form I-140 eligible petitioners include the following classifications are currently designated for premium processing: EB-1 Aliens of extraordinary ability, EB-1 Outstanding professors and researchers, EB-2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB-3 Skilled workers, EB-3 Professionals, and EB-3 Workers other than skilled workers and professionals. Table 5 shows the percentage of the eligible Form I-129 petitioners who chose to submit a premium processing request along with their Form I-129 petitions from FY 2017 through FY 2021. The 5-year annual average percentage of eligible Form I-129 petitioners who choose to submit a premium processing request was 53-percent. Table 5—Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant Worker, FY 2017 Through FY 2021 FY Total Form I-129 receipts Total Form I-129 petitions submitted with Form I-907 Percentage of Form I-907 receipts that come with Form I-129 2017 530,812 236,499 45 2018 548,950 292,296 53 2019 551,840 333,160 60 2020 555,093 274,864 50 2021 531,818 300,200 56 Total 2,718,513 1,437,019 5-year Annual Average 543,703 287,404 53 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. To estimate the probability that an eligible petitioner may choose to request premium processing, DHS computes a ratio of the 5-year annual average number of requests to the 5-year annual average number of eligible petitioners. Table 6 shows that of those currently eligible for premium processing, 53-percent chose to submit a premium processing request. For purposes of this analysis, DHS assumes that demand rate will carry forward and will use this percentage to estimate the possible adoption volumes of the newly eligible Form I-539 and I-765 applicants. Table 6—Percentage of Premium Processing Requests, FY 2017 Through FY 2021 5-year annual average of Forms submitted with Form I-907 5-year annual average of total receipts by Form Percentage of Form I-907 receipts Form I-140 38,141 73,969 52 Form I-129 287,404 543,703 53 Total 325,545 617,672 53 Source: USCIS Analysis. (4) Costs, Transfers, and Benefits of the Final Rule (a) Form I-129, Petition for a Nonimmigrant Worker, Transfer Payments Currently, petitioners requesting certain benefits on Form I-129, Petition for a Nonimmigrant Worker, are eligible to also submit a request for premium processing with their immigration benefit request. Table 7 shows the population of petitioners who submitted Form I-907 with Form I-129 65 based on the corresponding nonimmigrant classifications from FY 2017 through FY 2021. The USCIS Stabilization Act increased the premium processing fees for Form I-129. The premium processing fee for H-2B or R-1 nonimmigrant status was increased from $1,440 to $1,500, an increase of $60, which represents a 4.2-percent increase. The premium fee for all other available Form I-129 classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2) was increased from $1,440 to $2,500, and increase of $1,060, which represents a 73.6-percent increase. Because the fee for premium processing for the Form I-129 H-2B and R-1 classifications was increased by a different amount than for all other Form I-129 classifications, the data for the Form I-129 H-2B and R-1 classifications data was separated from the data for all other classifications. During this period, total annual receipts for Form I-907 with Form I-129 H-2B or R-1 classifications ranged from a low of 7,067 in FY 2020 to a high of 11,764 in FY 2021. Based on a 5-year annual average, DHS estimates the annual receipts from Form I-907 filed with Form I-129 H-2B or R-1 classifications to be 9,024. 65 See Instructions for Petition for Nonimmigrant Worker. Form I-129. OMB No. 1615-0009 Expires Sept. 30, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (last updated Mar. 10, 2021). During this period, total annual receipts for Form I-907 filed with all other available Form I-129 classifications (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2) ranged from a low of 227,289 in FY 2017 to a high of 322,656 in FY 2019. Based on a 5-year annual average, DHS estimates the annual receipts for Form I-907 associated with all other Forms I-129 to be 287,404, which represents 78.6-percent of all filed Form I-907 receipts. 66 66 Calculation: 287,404 Total I-129 Forms filed with an I-907 (See Table 5—Total Form I-129 Petitions submitted with Form I-907) divided by 365,823 Total Form I-907 filed = 78.6 percent. Table 7—Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant Worker, FY 2017 Through FY 2021 FY Form I-129 H-2B or R-1 request receipts Form I-129 all other visa request receipts * Total Form I-907 receipts 2017 9,210 227,289 236,499 2018 9,127 283,169 292,296 2019 10,504 322,656 333,160 2020 7,067 267,797 274,864 2021 11,764 288,436 300,200 Total 47,672 1,389,347 1,437,019 5-year Annual Average 9,534 277,869 287,404 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. * Note: All other includes the following classifications: E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2. H-2B or R-1 equals 3.3% and All other I-129 equals 96.7%. of Total Form I-907 Receipts filed with a Form I-129 petition. On October 1, 2020, the Continuing Appropriations Act, which included the USCIS Stabilization Act, was signed into law. The USCIS Stabilization Act set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded DHS authority to establish and collect new premium processing fees, and to use those additional funds for expanded purposes. 67 Table 7 shows that in FY 2021 when the fee was increased, Form I-129 petitioners were still willing to pay for premium processing. This provides suggestive evidence that petitioners' demand for premium processing is insensitive to the price increases effected by this rule. Consequently, projections of demand for expanded premium processing presented in this analysis do not anticipate a quantifiable price response. 67 See USCIS Stabilization Act, Public Law 116-159 (Oct. 1, 2020). The fee for premium processing for those petitioners requesting H-2B or R-1 nonimmigrant status was increased from $1,440 to $1,500, an increase of $60, which represents a 4.2-percent increase. 68 DHS collected an additional $705,840 69 from the new, higher premium processing fees associated with Form I-129 requests from the H-2B or R-1 nonimmigrant status fee paying population in annual transfer payments for FY 2021 to DHS. The fee for all other Form I-129 petitioners requesting premium processing was increased from $1,440 to $2,500, an increase of $1,060, which represents a 73.6- percent increase. DHS collected an additional $305,742,160 70 in transfer payments from premium processing requestors filing Form I-129 for all other visa classifications to DHS in FY 2021. The total increase in transfer payments from the Form I-129 fee-paying population to DHS in FY 2021 was $306,448,000 as shown in Table 8. 68 See id.; On October 16, 2020, USCIS issued a web alert notifying the public that USCIS would increase fees for premium processing, effective October 19, 2020, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Public Law 116-159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020). 69 Calculation: 11,764 annual Form I-129 H-2B or R-1 applications * $60 ($1,500 fee−$1,440) = $705,840. 70 Calculation: 288,436 annual Form I-129 applications for other than H-2B and R-1 status * $1,060 ($2,500 fee−$1,440) = $305,742,160. Table 8—Fees for Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant Worker, FY 2021 Period of analysis FY 2021 Fee Total Pre-Appropriations Act (Baseline Costs) 11,764 $1,440 $16,940,160 Post-Appropriations Act 11,764 1,500 17,646,000 Change in Transfer Payments for Form I-129 H-2B or R-1 705,840 Pre-Appropriations Act (Baseline Costs) 288,436 1,440 415,347,840 Post-Appropriations Act 288,436 2,500 721,090,000 Change in Transfer Payments for Form I-129 All Other * 305,742,160 Total Change in Transfer Payments for Form I-129 in FY 2021 306,448,000 Source: USCIS Analysis. * Note: All other includes the following classifications (E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2). DHS estimates the new premium processing fees associated with Form I-129 requests for H-2B or R-1 nonimmigrant status will result in $572,040 71 in additional annual transfer payments from the Form I-129 H-2B and R-1 fee-paying population to DHS. The fee for all other Form I-129 petitioners requesting premium processing was increased from $1,440 to $2,500, an increase of $1,060. DHS estimates increased annual transfer payments from premium processing requestors filing Form I-129 for all other visa classifications to DHS will be $294,541,140 in FY 2022 through FY 2030. 72 The total annual increased transfer payments from the Form I-129 fee-paying population to DHS is $295,113,180 from a projected increase in filing fees in FY 2022 through FY 2030, shown in Table 9. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government. 73 71 Calculation: 9,534 average annual Form I-129 H-2B or R-1 applications * $60 ($1,500 fee−$1,440) = $572,040. 72 Calculation: 277,869 average annual Form I-129 applications for other than H-2B and R-1 status * $1,060 ($2,500 fee−$1,440) = $294,541,140. 73 See Instructions for Petition for Nonimmigrant Worker. Form I-129. OMB No. 1615-0009 Expires Sept. 30, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (last updated Mar. 10, 2021). The USCIS Stabilization Act did not change the time burden to complete any of the classifications for Form I-129, nor form fee. The public reporting burden for this collection of information is in the form instructions. Table 9—Fees for Form I-907, Request for Premium Processing Service, Filed With Form I-129, Petition for a Nonimmigrant Worker, FY 2022 Through FY 2030 Period of analysis 5-Year annual average (FY 2017 through FY 2021) Fee Total Pre-Appropriations Act (Baseline Costs) 9,534 $1,440 $13,728,960 Post-Appropriations Act 9,534 1,500 14,301,000 Annual Change in Transfer Payments for Form I-129 H-2B or R-1 572,040 Pre-Appropriations Act (Baseline Costs) 277,869 1,440 400,131,360 Post-Appropriations Act 277,869 2,500 694,672,500 Annual Change in Transfer Payments for Form I-129 All Other * 294,541,140 Total Annual Change in Transfer Payments for Form I-907 in FY 2022 through FY 2030 295,113,180 Source: USCIS Analysis. * Note: All other includes the following classifications (E-1, E-2, E-3, H-1B, H-2A, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, TN-1, and TN-2). (b) Form I-140, Immigrant Petition for Alien Workers, Transfer Payments Table 10 shows the population of petitioners who submitted Form I-907, Request for Premium Processing Service, with Form I-140, Immigrant Petition for Alien Workers, 74 based on the corresponding employment-based (EB) classifications that are currently designated for premium processing. The following classifications are currently designated for premium processing: EB-1 Aliens of extraordinary ability (E11), EB-1 Outstanding professors and researchers (E12), EB-2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver E21 (non-NIW), EB-3 Skilled workers (E31), EB-3 Professionals (E32), and EB-3 Workers other than skilled workers and professionals (EW3). 75 74 See Instructions for Petition for Alien Workers. Form I-140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf (last updated Sep. 30, 2020). 75 See “How Do I Request Premium Processing?” https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated Apr. 12, 2021). Table 10 also shows the number of Form I-140 receipts filed with Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) from FY 2017 through FY 2021. The number of Form G-28 submissions allows USCIS to estimate the cost of time for a petitioner or representative to file each form, which is addressed in the next section of this analysis. During FY 2017 through FY 2021, total annual receipts from Form I-907 filed with Form I-140 ranged from a low of 57,969 in FY 2020 to a high of 88,109 in FY 2021. Based on a 5-year annual average, DHS estimates the annual receipts of Form I-907 filed with Form I-140 to be 71,569. Table 10—Form I-907, Request for Premium Processing Service Filed With Form I-140, Immigrant Petition for Alien Workers and the Number of Forms G-28 Filed With Those Forms I-907, FY 2017 Through FY 2021 FY Form I-907 receipts received with a Form I-140 Form G-28 receipts received with a Form I-140 and Form I-907 Percentage of Forms I-140 requesting premium processing and filed by an attorney or other representative (Form G-28) 2017 71,482 65,453 92 2018 78,215 73,168 94 2019 79,676 73,144 92 2020 64,264 57,969 90 2021 97,275 88,109 91 Total 390,912 357,843 5-year Annual Average 78,182 71,569 92 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. Effective October 1, 2020, the USCIS Stabilization Act increased the fee for premium processing of all designated classifications (Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3) available with Form I-140, from $1,440 to $2,500, an increase of $1,060. 76 76 See USCIS Stabilization Act; On October 16, 2020, USCIS issued a web alert notifying the public that USCIS would increase fees for premium processing, effective October 19, 2020, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Public Law 116-159, signed into law on October 1, 2020. https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020 (last updated Oct. 16, 2020). Using the population from FY 2021 of 97,275 applicants, DHS estimates that as a result of the fee increase the additional premium processing annual transfer payments from the Form I-140 fee-paying population to DHS was $103,111,500 in FY 2021, shown in Table 11. Consistent with demand for Form I-129 premium processing, DHS observed an increase in premium processing requests associated with Form I-140 in FY 2021 following implementation of the fee increase. This corroborates the agency's experience that requestors are insensitive to the price increases effected by this rule, and will continue to file for premium processing. Table 11—Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140, Immigrant Petition for Alien Workers * Period of analysis FY 2021 Fee Total Pre-Appropriations Act (Baseline Costs) 97,275 $1,440 $140,076,000 Post-Appropriations Act 97,275 2,500 243,187,500 Total Transfer Payments 103,111,500 Source: USCIS Analysis. * Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3. Using the historical 5-year annual average from FY 2017 through FY 2021 of 78,182 applicants, DHS estimates that as a result of the increase in filing fees for premium processing the additional annual transfer payments from the Form I-140 fee-paying population to DHS will be $82,872,920 a projected in FY 2022 through FY 2030 shown in Table 12. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government. 77 77 See Instructions for Petition for Alien Workers. Form I-140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf (last updated Sep. 30, 2020). The USCIS Stabilization Act did not change the time burden to complete any of the classifications for Form I-140, nor form fee. The public reporting burden for this collection of information is in the form instructions. Table 12—Fees for Form I-907, Request for Premium Processing Service, Currently Filed With Form I-140, Immigrant Petition for Alien Workers * Period of Analysis 5-Year annual average (FY 2017 through FY 2021) Fee Total Pre-Appropriations Act (Baseline Costs) 78,182 $1,440 $112,582,080 Post-Appropriations Act 78,182 2,500 195,455,000 Total Transfer Payments 82,872,920 Source: USCIS Analysis. * Note: Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3. This final rule allows USCIS 45-days for premium processing of currently eligible Form I-140 requests, instead of the existing 15-day timeframe. While USCIS is unable to determine how many of the 79 Form I-140 premium processing refunds issued under the 15-day timeframe (Table 3) would be able to have their Request for Premium Processing completed as a result of this change, this would result in a reduction of the expected transfer of refunded revenues from the government, back to those petitioners. (c) Form I-140, Immigrant Petition for Alien Workers Newly Eligible Population, Costs & Transfer Payments The following classifications are currently designated for premium processing: EB-1 Aliens of extraordinary ability, EB-1 Outstanding professors and researchers, EB-2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB-3 Skilled workers, EB-3 Professionals, EB-3 Workers other than skilled workers and professionals. 78 In this final rule, DHS is adding two new employment-based classifications that will be designated for premium processing when filing Form I-140. DHS is including EB-1, multinational executives and managers, and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver. Petitioners of Form I-140 (EB-1, multinational executives and managers and EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing may be able to have their petitions reviewed more quickly. As a result, an adjudicative action may be taken more quickly. This change will come at a cost of time and money for this new population. 78 See “How Do I Request Premium Processing?” https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated Apr. 12, 2021). Table 13 shows the total receipts received for Form I-140 EB-1, multinational executives, and managers, and Form I-140 EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver for FY 2017 through FY 2021. During this period, total annual receipts for Form I-140 with these classifications ranged from a low of 64,501 in FY 2020 to a high of 79,135 in FY 2017. Based on a 5-year annual average, DHS estimates the annual receipts for Form I-140 with these two classifications to be 72,637. Table 13—Form I-140, Immigrant Petition for Alien Workers, Receipts by Classification, FY 2017 Through FY 2021 FY EB-1, multinational executives, and managers receipts EB-2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver receipts Total 2017 16,708 62,427 79,135 2018 13,595 61,652 75,247 2019 12,492 65,711 78,203 2020 11,222 53,279 64,501 2021 10,182 55,916 66,098 Total 64,199 298,985 363,184 5-year Annual Average 12,840 59,797 72,637 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. DHS recognizes that not all eligible petitioners will submit a premium processing request, and therefore, DHS uses the current percentage of premium processing requests compared to the number of total receipts from the currently eligible population, 52- percent, as a proxy of the number of newly eligible petitioners that will submit a premium processing request with Form I-140. DHS estimates 37,771 petitioners (52 percent of the newly eligible population of 72,637) would submit a premium processing request with their I-140 petition, as shown in Table 14. Table 14—Estimated of Premium Processing Requests for Newly Eligible Form I-140, Immigrant Petition for Alien Workers Percent of total newly eligible Form I-140 petitioners Newly eligible Form I-140 petitioners 52 37,771 Source: USCIS Analysis. Petitioners who file Form I-140 with a Form G-28 would use a lawyer or accredited representative to complete any related immigration benefit requests or forms. Based on the data from Table 10, 92 percent of Form I-140 petitions were filed with a Form G-28, while the remaining 8 percent of Form I-140 petitions are filed without a Form G-28. 79 Table 15 shows the total estimated population of petitioners who would choose to file Form I-140 requesting premium processing with an in-house or outsourced lawyer using a Form G-28 80 and the total estimated population of petitioners who would file Form I-140 requesting premium processing with a Human Resources Specialist. 79 Calculation: 100 percent−92 percent filing with Form G-28 = 8 percent only filing Form I-140. 80 DHS uses an outsourced lawyer recognizing that not all entities will have in-house counsel and may need to hire outside counsel. Table 15—Estimated Newly Eligible Form I-140, Immigrant Petition for Alien Workers, Populations With and Without Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative Percent Estimated Form I-140 requesting premium processing filed by an attorney or other representative (Form G-28) (92% of 37,771) Estimated Form I-140 requesting premium processing filed by an HR specialist (8% of 37,771) Total Population of Newly Eligible Form I-140 Petitioners filing for Premium Processing by Filer Type (52%) 34,749 3,022 37,771 Source: USCIS Analysis. In order to estimate the opportunity costs of time for completing and filing Form I-907, DHS assumes that a petitioner will use a human resources (HR) specialist, an in-house lawyer, or an outsourced lawyer to prepare Form I-907 petitions. 81 DHS uses the mean hourly wage of $33.38 for HR specialists to estimate the opportunity cost of the time for preparing and submitting Form I-907. 82 Additionally, DHS uses the mean hourly wage of $71.59 for in-house lawyers to estimate the opportunity cost of the time for preparing and submitting Form I-140. 83 81 USCIS limited its analysis to HR specialists, in-house lawyers, and outsourced lawyers to present estimated costs. However, USCIS understands that not all entities employ individuals with these occupations and, therefore, recognizes equivalent occupations may also prepare and file these petitions. 82 See Bureau of Labor Statistics, U.S. Department of Labor, “Occupational Employment Statistics, May 2020, Human Resources Specialist.” Available at https://www.bls.gov/oes/2020/may/oes131071.htm. Accessed April 13, 2021. 83 See Bureau of Labor Statistics, U.S. Department of Labor, “Occupational Employment Statistics, May 2020, Lawyers.” Available at https://www.bls.gov/oes/2020/may/oes231011.htm. Accessed April 13, 2021. DHS accounts for worker benefits when estimating the total costs of compensation by calculating a benefits-to-wage multiplier using the U.S. Department of Labor, BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS estimates that the benefits-to-wage multiplier is 1.45 and, therefore, is able to estimate the full opportunity cost per petitioner, including employee wages and salaries and the full cost of benefits such as paid leave, insurance, retirement, etc. 84 DHS multiplied the average hourly U.S. wage rate for HR specialists and in-house lawyers by 1.45 to account for the full cost of employee benefits, for a total of $48.40 85 per hour for an HR specialist and $103.81 86 per hour for an in-house lawyer. DHS recognizes that a firm may choose, but is not required, to outsource the preparation of these petitions and, therefore, presents two wage rates for lawyers. To determine the full opportunity costs of time if a firm hired an outsourced lawyer, DHS multiplied the average hourly U.S. wage rate for lawyers by 2.5 for a total of $178.98 87 to approximate an hourly wage rate for an outsourced lawyer 88 to prepare and submit Form I-907. 89 84 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour)/(Wages and Salaries per hour) ($38.60 Total Employee Compensation per hour)/($26.53 Wages and Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department of Labor, Bureau of Labor Statistics, Economic News Release, Employer Cost for Employee Compensation (December 2020), Table 1. Employer Costs for Employee Compensation by ownership (Dec. 2020), available at https://www.bls.gov/news.release/archives/ecec_03182021.htm. (last visited March. 31, 2021). The ECEC measures the average cost to employers for wages and salaries and benefits per employee hour worked. 85 Calculation: $33.38 * 1.45 = $48.40 total wage rate for HR specialist. 86 Calculation: $71.59 * 1.45 = $103.81 total wage rate for in-house lawyer. 87 Calculation: $71.59 * 2.5 = $178.98 total wage rate for an outsourced lawyer. 88 The DHS analysis in, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program” (83 FR 24905, May 31, 2018), available at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced attorney wages. The DHS ICE rule, “Final Small Entity Impact Analysis: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” at G-4 (Aug. 25, 2008), available at https://www.regulations.gov/document/ICEB-2006-0004-0922 also uses a multiplier. The methodology used in the Final Small Entity Impact Analysis remains sound for using 2.5 as a multiplier for outsourced labor wages in this rule, pages 143-144. 89 The DHS analysis in, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program” (83 FR 24905, May 31, 2018), available at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced attorney wages. Also, the analysis for a DHS ICE rule, “Final Small Entity Impact Analysis: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” at G-4 (Aug. 25, 2008), available at https://www.regulations.gov/document/ICEB-2006-0004-0922 used a multiplier. The methodology used in the Final Small Entity Impact Analysis remains sound for using 2.5 as a multiplier for outsourced labor wages in this rule, pages 143-144. To estimate the opportunity cost of time to complete and file Form I-907, DHS applies the estimated time burden (0.58 hours) to the newly eligible population and compensation rates of those who may file with or without a lawyer. 90 Table 16 shows the estimated annual opportunity cost of time for newly eligible Form I-140 petitioners employing an in-house or outsourced lawyer to complete and file Form I-907 requests. DHS does not know the exact numb er of petitioners who will choose an in-house or an outsourced lawyer, but assumes it may be a 50/50 split and therefore provides an average. These opportunity costs of time for Form I-140 petitioners who request premium processing using an attorney or other representative are estimated to range from $2,092,230 to $3,607,238 with an average of $2,849,734. 90 See Instructions for Request for Premium Processing Service. Form I-907. OMB No. 1615-0048 Expires July 31, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (last updated Sep. 30, 2020). Table 16—Average Opportunity Costs of Time to Newly Eligible Form I-140 Petitioners Requesting Premium Processing Filing With an Attorney or Other Representative Newly eligible population of petitioners filing with a lawyer Time burden to complete Form I-907 (hours) Cost of time Total opportunity cost A B C D = (A × B × C) In House Lawyer ($103.81/hr.) 34,749 0.58 $103.81 $2,092,230 Outsourced Lawyer ($178.98/hr.) 34,749 0.58 178.98 3,607,238 Average 2,849,734 Source: USCIS Analysis. To estimate the remaining opportunity cost of time for a HR specialist filing Form I-907 without a lawyer, DHS applies the estimated public reporting time burden (0.58 hours) to the compensation rate of an HR specialist. For those newly eligible, shown in Table 17, DHS estimates the total annual opportunity cost of time to HR specialists completing and filing Form I-907 requests will be approximately $84,834. Table 17—Opportunity Costs of Time to Newly Eligible Form I-140 Petitioners for Filing Form I-907, Request for Premium Processing Service Without an Attorney or Accredited Representative Newly eligible population Time burden to complete Form I-907 (hours) HR specialist's opportunity cost of time (48.40/hr.) Total opportunity cost of time A B C D = (A × B × C) Estimate of Eligible Form I-140 Petitions (52%) 3,022 0.58 $48.40 $84,834 Source: USCIS Analysis. The costs to the petitioners newly eligible to file Form I-907 with a Form I-140 as a result of this rule is estimated to be $2,934,568, as shown Table 18. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government. 91 91 See Instructions for Petition for Alien Workers. Form I-140. OMB No. 1615-0015 Expires June 30, 2022. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-140instr.pdf (last updated Sep. 30, 2020). The USCIS Stabilization Act did not change the time burden to complete any of the classifications for Form I-140, nor form fee. The public reporting burden for this collection of information is in form instructions. Table 18—Total Costs to Newly Eligible Form I-140 Petitioners for Filing Form I-907, Request for Premium Processing Service Opportunity cost of time to complete and to file Form I-907 (lawyers), Table 16 Opportunity cost of time to complete and file Form I-907 (HR specialists), Table 17 Total cost A B D = (A + B + C) Estimate of Eligible Form I-140 Petitions (52%) $2,849,734 $84,834 $2,934,568 Source: USCIS Analysis. In Table 19, DHS estimates that as a result of the increase in filing fees for Form I-907, Request for Premium Processing Service, the additional annual transfer payments from the new Form I-140 fee-paying population to DHS will be $94,427,500. Table 19—New Filing Fees to Form I-140 Petitioners for Filing Form I-907, Request for Premium Processing Service Newly eligible population New filing fees for Form I-907 Total filing fees from Form I-907 A B C = (B × A) Estimate of Eligible Form I-140 Petitions (52%) 37,771 $2,500 $94,427,500 Source: USCIS Analysis. (d) Form I-539, Application To Extend/Change Nonimmigrant Status, Costs & Transfer Payments In this final rule, DHS is now adding Form I-539, Application to Extend/Change Nonimmigrant Status, to the types of immigration benefit requests that are eligible for premium processing. While Form I-539 is used for many nonimmigrants categories who may apply for an extension of stay or a change of status, premium processing will now be extended to Form I-539 requestors changing status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status. Table 20 shows the total receipts received for Form I-539 for FY 2017 through FY 2021 and the number of Form I-539 receipts filed with an attorney or accredited representative using Form G-28. The number of Form G-28 submissions allows USCIS to estimate the numbers of forms that are filed by an attorney or accredited representative. This in turn, allows USCIS to estimate the opportunity cost of time depending on the type of filer. During this period, total annual receipts for Form I-539 ranged from a low of 227,120 in FY 2019 to a high of 441,920 in FY 2020. Based on a 5-year annual average, DHS estimates the annual receipts for Form I-539 to be 284,345, with 49 percent of Forms I-539 being filed by an attorney or accredited representative. Table 20—USCIS Receipts of Form I-539, Application To Extend/Change Nonimmigrant Status, With the Number of G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, Received, FY 2017 Through FY 2021 FY Receipts Form G-28 Percentage of Forms I-539 filed with Form G-28 2017 233,306 121,855 52 2018 233,437 130,654 56 2019 227,120 130,435 57 2020 441,920 166,298 38 2021 285,941 148,779 52 Total 1,421,724 698,021 49 5-year Annual Average 284,345 139,604 49 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. DHS does not know how many newly eligible Form I-539 applicants will choose to submit a premium processing request since this population has not previously been eligible to file for premium processing. DHS recognizes that not all eligible petitioners will submit a premium processing request. Table 21 shows the 5-year annual average for the classifications that are now eligible for premium processing along with the number of forms that are filed with a Form G-28 for FY 2017 through FY 2021. Overall, 49 percent 92 of Form I-539 applications will now be eligible for premium processing. Form I-539 F-1, F-2, J-1, J-2, M-1, M-2 classifications account for 14 percent 93 of the newly eligible population and are students and exchange visitors. Form I-539 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications are employment visas and account for the remaining 86 percent 94 of the newly eligible population of Form I-539 filers. 92 Calculation: 5-year Annual Average Total Newly Eligible Form I-539 applicants/5-year Annual Average of Total Form I-539 Receipts = 138,557 (Table 21)/284,345 (Table 20) = 49%. 93 Calculation: F, J, and M Total/Total of all Classifications = 96,708/692,785 = 14%. 94 Calculation: All Other Total/Total of all Classifications = 596,077/692,785 = 86%. Table 21—USCIS 5-Year Annual Average of Form I-539 Receipts, Application To Extend/Change Nonimmigrant Status by Classification and File With or Without a Form G-28, FY 2017 Through FY 2021 Form I-539 classifications Form I-539 filed with Form G-28 Form I-539 filed without Form G-28 Total Form I-539 receipts F-1 22,180 55,680 77,860 F-2 2,640 6,161 8,801 J-1 209 1,033 1,242 J-2 132 529 661 M-1 333 7,773 8,106 M-2 14 24 38 F-1, F-2, J-1, J-2, M-1, M-2 Total 25,508 71,200 96,708 E-1 601 99 700 E-2 10,985 1,966 12,951 E-3 2,340 417 2,757 H-4 372,202 131,452 503,654 L-2 53,545 7,617 61,162 O-3 6,825 1,004 7,829 P-4 875 443 1,318 R-2 4,470 1,236 5,706 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 Total 451,843 144,234 596,077 Total of all Classifications 477,351 215,434 692,785 5-year Annual Average of all Classifications 95,470 43,087 138,557 Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS database, October 13, 2021. Table 21 shows that of the 138,557 newly eligible applicants, DHS calculated that 19,342 would be applying for F-1, F-2, J-1, J-2, M-1, M-2 classifications (14%), and the remaining 119,215 would be applying for E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications (86%). Since Form I-539 applicants have never been eligible to request premium processing, DHS has no historical data to determine how many of the newly eligible population will take advantage of premium processing. Therefore, DHS uses the 53 percent average of Forms I-129 and I-140 that request premium processing for this newly eligible population as a proxy. Of the 19,342 newly eligible applicants for F-1, F-2, J-1, J-2, M-1, M-2 classifications, DHS estimates that 10,251 applicants (53 percent of the eligible population) may submit a premium processing request along with their Form I-539 application. Of the 119,215 newly eligible applicants for E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications, DHS estimates that 63,184 applicants (53 percent of the eligible population) may submit a premium processing request along with their Form I-539 application as shown in Table 22. DHS is planning to begin accepting premium processing requests from F-1, F-2, J-1, J-2, M-1, M-2 classifications beginning in FY 2022. DHS anticipates accepting premium processing requests from E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications by FY 2025. Table 22—Estimated USCIS 5-Year Annual Average Form I-539, Application To Extend/Change Nonimmigrant Status, Populations Filed With and Without Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative, FY 2017 Through FY 2021 Classification type Estimated Form I-539 filed with Form G-28 Estimated Form I-539 filed without Form G-28 Total F-1, F-2, J-1, J-2, M-1, M-2 classifications 2,704 7,547 10,251 E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 classifications 47,895 15,289 63,184 Total 50,599 22,836 73,435 Source: U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated via SAS, queried October 13, 2021. In order to estimate the opportunity costs of time for completing and filing Form I-907, DHS assumes that an applicant will use an in-house or outsourced lawyer or will prepare Form I-907 request themselves. Many of the individuals using Form I-539 F-1, F-2, J-1, J-2, M-1, M-2 classifications may file forms on their own because they are students, professors, research scholars, trainees or interns, teachers, camp counselors, au pairs, and summer work travel exchange visitors, and may not choose to hire a lawyer. 95 Table 22 shows the total population of applicants who chose to file Form I-539 with and without an attorney or accredited representative using Form G-28 by classification. 95 USCIS recognizes that professors, teachers, and research scholars in the J-1 and J-2 visa categories may not hire lawyers and may not file these forms themselves. USCIS recognizes that these forms may be filed by an HR Specialist or some other equivalent occupation at the sponsoring entity on behalf of these applicants. However, for the simplicity of this analysis, USCIS includes these categories as filing themselves which may result in a slight underestimation in the opportunity costs of time for the J category. To estimate the new opportunity cost of time f [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%3A2022-06742. Public record. Not legal advice.