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

Federal RegisterJan 4, 2023

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 106, 204, 212, 214, 240, 244, 245, 245a, 264 and 274a

[CIS No. 2687-21; DHS Docket No. USCIS 2021-0010]

RIN 1615-AC68

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

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Proposed rule.

SUMMARY:

The Department of Homeland Security (DHS) proposes to adjust certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive biennial fee review and determined that its costs have increased considerably since its previous fee adjustment due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees. USCIS cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations. DHS proposes to adjust USCIS fees, add new fees for certain benefit requests, establish distinct fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms. DHS is also proposing additional fee exemptions for certain humanitarian categories and changes to certain other immigration benefit request requirements. If DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners or be able to keep pace with incoming benefit request workload, and USCIS processing times and backlogs will not improve. DHS intends for this rulemaking to provide the funding required for USCIS to improve service levels.

DATES:

Written comments must be submitted on this proposed rule on or before March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.

Listening session date:

DHS will hold virtual public listening sessions during which the public may speak directly to USCIS on the questions raised in this proposed rule. A session will be held on January 11, 2023 at 2:00 p.m. ET.

Listening sessions registration date:

For an opportunity to provide oral comments during the virtual public listening sessions, you must register before the listening session in question. For registration instructions, see the Public Participation section below.

ADDRESSES:

You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2021-0010, through the Federal eRulemaking Portal:

https://www.regulations.gov.

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 proposed rule and may not receive a response from DHS. Please note that DHS and 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. Due to Coronavirus Disease (COVID-19), 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 (202) 658-9621 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Carol Cribbs, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Summary of Economic Impacts

B. Summary of Proposed Provisions

C. Summary of Current and Proposed Fees

III. Basis for the Fee Review

A. Legal Authority and Guidance

B. Effect of FY 2022 Appropriations

C. Immigration Examinations Fee Account

D. Full Cost Recovery

E. The Use of Premium Processing Funds Under the Emergency Stopgap USCIS Stabilization Act

F. Fee Review History

1. Current State of USCIS Fee Schedule Regulations

2. Previous Fee Rules

3. Current Fees

IV. Fee-Setting Approach—Reversal of 2020 Fee Rule

V. FY 2022/2023 Immigration Examinations Fee Account Fee Review

A. USCIS Projected Costs and Revenue

1. USCIS Budget History

2. FY 2022/2023 Cost Projections

a. General Expenses

b. Payroll

c. Related Rulemakings

d. Cost Summary

3. FY 2022/2023 Revenue Projections

4. Projected Cost and Revenue Differential

B. Methodology

1. Volume

a. Workload Volume and Volume Projection Committee

b. Fee-Paying Volume

2. Completion Rates

3. Assessing Proposed Fees

4. Funding the Asylum Program With Employer Petition Fees

C. Exclusion of Temporary or Uncertain Programs

D. Consideration of DACA Rulemaking

E. Fee-Related Issues for Consideration

1. Accommodating E-filing and Form Flexibility

2. Processing Time Outlook

VI. Fee Waivers

A. Background

B. The 2020 Fee Rule Fee Waiver Changes

C. Inability To Pay

D. USCIS Director's Discretionary Fee Waivers and Exemptions

E. Requirements To Submit Fee Waiver Form

F. Form and Policy Changes

G. Request for Comments

VII. Fee Exemptions

A. Codification of Benefit Requests With No Fees and Exemptions of Certain Categories or Classifications From Fees

B. Proposed Fee Exemptions

1. Victims of Severe Form of Trafficking (T Nonimmigrants)

2. Victims of Qualifying Criminal Activity (U Nonimmigrants)

3. VAWA Form I-360 Self-Petitioners Derivatives

4. Conditional Permanent Residents Filing a Waiver of the Joint Filing Requirement Based on Battery or Extreme Cruelty

5. Abused Spouses and Children Seeking Benefits Under CAA and HRIFA

6. Abused Spouses and Children Seeking Benefits Under NACARA

7. Abused Spouses and Children of LPRs or U.S. Citizens Under INA Sec. 240A(b)(2)

8. Special Immigrant Afghan or Iraqi Translators or Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S. Government, or Afghan Nationals Employed by or on Behalf of the U.S. Government or Employed by the International Security Assistance Force and Derivative Beneficiaries

9. Special Immigrant Juveniles

10. Temporary Protected Status

11. Asylees

12. Refugees

13. Person Who Served Honorably on Active Duty in the U.S. Armed Forces Filing Under INA Sec. 101(A)(27)(K)

14. Summary of Proposed Fee Exemptions

C. Request for Comments

VIII. Other Proposed Changes in the FY 2022/2023 Fee Schedule

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

B. Payment Method

C. Non-Refundable Fees

D. Eliminating $30 Returned Check Fee

E. Changes to Biometric Services Fee

1. Incorporating Biometric Activities Into Immigration Benefit Request Fees

2. Retaining the Separate Biometric Services Fee for Temporary Protected Status

3. Executive Office for Immigration Review Biometric Services Fee

F. Naturalization and Citizenship-Related Forms

1. Application for Naturalization (Form N-400) Fee

2. Request for Reduced Fee (Form I-942)

3. Military Naturalization and Certificates of Citizenship

4. Application for Certificate of Citizenship (Form N-600) and Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K)

5. Proposed Changes to Other Naturalization-Related Application Fees

6. Request for Comments

G. Fees for Online Filing

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

1. Interim Benefits

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

3. INA Sec. 245(i) Statutory Sum

I. Continuing To Hold Refugee Travel Document Fee for Asylees to the Department of State Passport Fee

J. Form I-131A, Carrier Documentation

K. Separating Fees for Form I-129, Petition for a Nonimmigrant Worker, by Nonimmigrant Classification

1. Form I-129, Petition for Nonimmigrant Worker: H-1 Classifications

2. Form I-129, Petitions for H-2A or H-2B Classifications

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

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

5. Form I-129, Petition for Nonimmigrant Worker: E and TN Classifications

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

7. Separating Form I-129 Into Multiple Forms

8. Commonwealth of the Northern Mariana Islands Fees

9. H-1B Electronic Registration Fee

L. Premium Processing—Business Days

M. Permitting Combined Payment of the Premium Processing Fee

N. Intercountry Adoptions

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

2. Clarification of Fee Exception for Birth Siblings

3. Suitability and Eligibility Approval Validity Period

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

a. Suitability and Eligibility Extensions

b. New Approval Notices

c. Change of Country

d. Duplicate Approval Notices

e. Hague Adoption Convention Transition Cases

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

O. Immigrant Investors

1. Immediate Effects of the EB-5 Reform and Integrity Act of 2022

2. Background of the EB-5 Program

3. Proposed EB-5 Program Fees

P. Genealogy and Records

1. Genealogy Search and Records Requests

2. Request for a Certificate of Non-Existence

Q. Fees Shared by CBP and USCIS

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

S. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Nonimmigrant Workers (Pub. L. 114-113 Fees)

T. Adjusting Fees for Inflation

U. Miscellaneous Technical and Procedural Changes

IX. Proposed Fee Adjustments to IEFA Immigration Benefits

A. Impact of Fees

B. USCIS Fiscal Health

C. Planned Increases in Efficiency

X. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act)

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

H. Paperwork Reduction Act

I. National Environmental Policy Act

J. Family Assessment

List of Acronyms and Abbreviations

AAPA Afghan Allies Protection Act of 2009

ABC Activity-Based Costing

ACWIA American Competitiveness and Workforce Improvement Act

AFM Adjudicator's Field Manual

APEC U.S. Asia-Pacific Economic Cooperation

ASC Application Support Center

ASVVP Administrative Site Visit and Verification Program

BLS Bureau of Labor Statistics

CAA Cuban Adjustment Act

CBP U.S. Customs and Border Protection

CEQ Council on Environmental Quality

CFO Chief Financial Officer

CFO Act Chief Financial Officers Act of 1990

CNMI Commonwealth of the Northern Mariana Islands

COVID Coronavirus Disease

CPI Consumer Price Index

CPI-U Consumer Price Index for All Urban Consumers

CPR Conditional Permanent Residents

CRA Congressional Review Act

DACA Deferred Action for Childhood Arrivals

DCL Dedicated Commuter Lane

DHS Department of Homeland Security

DoD Department of Defense

DOJ Department of Justice

DOL Department of Labor

DOS Department of State

EAD Employment Authorization Document

EB-5 Employment-Based Immigrant Visa, Fifth Preference

EIN Employer Identification Number

E.O. Executive Order

EOIR Executive Office for Immigration Review

FBI Federal Bureau of Investigation

FDNS Fraud Detection and National Security Directorate

FOIA Freedom of Information Act

FPG Federal Poverty Guidelines

FY Fiscal Year

GAO U.S. Government Accountability Office

GE General Expenses

GPO Government Publishing Office

HHS U.S. Department of Health and Human Services

HRIFA Haitian Refugee Immigration Fairness Act

IEFA Immigration Examinations Fee Account

ILRC

Immigrant Legal Resource Center

Wolf

INA Immigration and Nationality Act of 1952

INS Immigration and Naturalization Service

IOAA Independent Offices Appropriations Act

IPO Immigrant Investor Program Office

IRFA Initial Regulatory Flexibility Analysis

IRIS Immigration Records and Identity Services

ISAF International Security Assistance Force

LPR Lawful Permanent Resident

NACARA Nicaraguan Adjustment and Central American Relief Act

NAFTA North American Free Trade Agreement

NAICS North American Industry Classification System

NATO North Atlantic Treaty Organization

NCE New Commercial Enterprise

NEPA National Environmental Policy Act

NPRM Notice of Proposed Rulemaking

NRC National Records Center

NWIRP

Northwest Immigration Rights Project

United States Citizenship and Immigration Services

OAW Operation Allies Welcome

OIG DHS Office of Inspector General

OMB Office of Management and Budget

OP Operating Plan

OPQ Office of Performance and Quality

OPT Optional Practical Training

PRA Paperwork Reduction Act

PRC Permanent Resident Card

RAIO Refugee, Asylum, and International Operations Directorate

RAP Resource Allocation Plan

RFA Regulatory Flexibility Act

RFE Request for Evidence

RIA Regulatory Impact Analysis

SAM Staffing Allocation Model

SAVE Systematic Alien Verification for Entitlements

SBA Small Business Administration

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

SCOPS Service Center Operations

SEA Small Entity Analysis

SEVP Student and Exchange Visitor Program

SIJ Special Immigrant Juvenile

SOFA Status of Forces Agreement

STEM OPT Science, Technology, Engineering, and Mathematics Optional Practical Training

TEA Targeted Employment Area

TECRO Taipei Economic and Cultural Representative Office

TPS Temporary Protected Status

TVPRA William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UMRA Unfunded Mandates Reform Act

USCIS U.S. Citizenship and Immigration Services

USMCA U.S. Mexico-Canada Agreement

VAWA Violence Against Women Act

VPC Volume Projection Committee

I. Public Participation

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

Instructions:

All submissions should include the agency name and DHS Docket No. USCIS-2021-0010 for this rulemaking. Providing comments is entirely voluntary. Regardless of how you submit your comment, DHS will post all submissions, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov

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

https://www.regulations.gov.

Registration for listening session:

To register and receive information on how to attend the virtual public listening sessions, please go to:

https://www.uscis.gov/outreach/upcoming-national-engagements.

Docket:

For access to the docket, go to

https://www.regulations.gov

and enter this rulemaking's eDocket number: USCIS-2021-0010. The docket includes additional documents that support the analysis contained in this proposed rule to determine the specific fees that are proposed. These documents include:

• Fiscal Year (FY) 2022/2023 Immigration Examinations Fee Account (IEFA) Fee Review Supporting Documentation (supporting documentation);

• FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule documentation);

• FY 2022/2023 IEFA Fee Review Model Documentation (model documentation);

• FY 2022/2023 Fee Review Regulatory Impact Analysis (RIA); and

• FY 2022/2023 Fee Review Small Entity Analysis (SEA).

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

used to compute the immigration benefit request

fees and biometric fees

is a commercial product licensed to USCIS that may be accessed on-site, by appointment, by calling 240-721-6080.

USCIS uses commercially available activity-based costing (ABC) software, CostPerform, to create financial models as described in the supporting documentation.

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

See

8 CFR 1.2.

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

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

FAQ:

To provide maximum transparency and clarity to the public on this proposed rule, DHS has provided a list of frequently asked questions and answers (FAQ) that summarize the content and context of this rule in an easily readable and understandable summary fashion. We have placed the FAQ in the eDocket USCIS-2021-0010, as well as on the USCIS website at

https://www.uscis.gov/proposed-fee-rule-faqs.

II. Executive Summary

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

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

See

81 FR 73292 (Oct. 24, 2016) (final rule) (FY 2016/2017 fee rule). USCIS budget and revenue estimates at the time indicated there would be an average annual deficit of $560 million without adjusting fees. DHS issued a final rule to adjust the USCIS fee schedule on August 3, 2020, by a weighted average of 20 percent, reflecting the results of the FY 2019/2020 USCIS fee review.

See

85 FR 46788 (2020 fee rule). DHS estimated an average annual USCIS deficit of $1,035.9 million. The rule was scheduled to become effective on October 2, 2020. However, that rule was preliminarily enjoined, and USCIS has not implemented the fees set out in the 2020 fee rule.

In this rule, DHS proposes to replace the 2020 fee rule in its entirety by revising the regulatory changes codified by the enjoined 2020 fee rule. Certain changes in the 2020 fee rule are proposed to be retained by being republished.

For the purposes of this rulemaking, DHS is including all requests funded from the IEFA in the term “benefit request” or “immigration benefit request” although the form or request may not technically relate to an immigration or naturalization benefit. For example, Deferred Action for Childhood Arrivals (DACA) is solely an exercise of prosecutorial discretion by DHS, is not an immigration benefit, and is called a “benefit request” solely for purposes of this rule. Likewise, a request for genealogy records is not a request for an immigration benefit. For historic receipts and completion information,

see

USCIS immigration and citizenship data available at

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

Immigrant Legal Res. Ctr.

Wolf,

491 F. Supp. 3d 520 (N.D. Cal. 2020) (

ILRC

);

Nw. Immigrant Rights Project

USCIS,

496 F. Supp. 3d 31 (D.D.C. 2020) (

NWIRP

USCIS is primarily funded by fees charged to applicants and petitioners for immigration and naturalization benefit requests. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants or petitioners. The focus of this fee review is the fees that DHS has established and is authorized by INA section 286(m), 8 U.S.C 1356(m), to establish or change, collect, and deposit into the IEFA, which comprised approximately 96 percent of USCIS' total FY 2021 enacted spending authority; this fee review does not focus on fees that USCIS is required to collect but cannot change. This rule also proposes to revise the genealogy program fees established under INA section 286(t), 8 U.S.C. 1356(t), and those funds are also deposited into the IEFA. Premium processing funds

established under INA section 286(u), 8 U.S.C. 1356(u) are also IEFA fees, but premium processing fees are not proposed to be changed in this rule.

In accordance with the requirements and principles of the Chief Financial Officers Act of 1990 (CFO Act), codified at 31 U.S.C. 901-03, and Office of Management and Budget (OMB) Circular A-25, USCIS conducts biennial reviews of the non-statutory fees deposited into the IEFA. Following such reviews, DHS proposes fee adjustments, if necessary, to ensure that USCIS fees recover the full cost of operating USCIS as authorized by INA section 286(m), 8 U.S.C. 1356(m). USCIS has completed a fee review for the FY 2022/2023 biennial period. The primary objective of any IEFA fee review is to determine whether current immigration and naturalization benefit fees will generate sufficient revenue to fund the anticipated operating costs associated with administering the nation's legal immigration system. The results indicate that current fee levels are insufficient to recover the full cost of operations funded by the IEFA. Therefore, DHS proposes to adjust USCIS fees.

In addition to the requirements of the CFO Act, there are other important reasons for conducting the FY 2022/2023 fee review. The fee review:

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

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

USCIS calculates its fees to recover the full cost of operations funded by the IEFA. These costs do not include limited appropriations provided by Congress. If USCIS continues to operate at current fee levels, it would experience an average annual shortfall (the amount by which expenses exceed revenue) of $1,868.2 million. This projected shortfall poses a risk of degrading USCIS operations funded by the IEFA.

Although this fee schedule represents a 40-percent overall weighted average increase to ensure full cost recovery, more than a million immigration benefit requestors each year would see no increase or a decrease in costs because their benefit requests have no fee, are fee exempt, or are fee waived.

In FY 2022/2023, USCIS estimates approximately 8 million annual average receipts for workload with fees. Of those, USCIS estimates approximately 7 million may pay fees. DHS proposes to maintain the current fee waiver policy which was established in 2011.

USCIS uses a weighted average instead of a straight average because of the difference in volume by immigration benefit type and the resulting effect on fee revenue. The 40-percent weighted average increase is a change in the average fee for a form that currently requires a fee compared to the average proposed fee per form. The sum of the current fees, multiplied by the projected FY 2022/2023 fee-paying receipts for each immigration benefit type, divided by the total fee-paying receipts, is $518. The sum of the proposed fees, multiplied by the projected FY 2022/2023 receipts for each immigration benefit type, divided by the fee-paying receipts, is $725. There is a $207, or approximately 40-percent, difference between the two averages. These averages exclude fees that do not receive cost reallocation, such as the separate biometric services fee and the proposed genealogy fees.

See

Policy Memorandum, Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26, available at

https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf

) (last viewed March 23, 2022).

The proposed fees would ensure that IEFA revenue covers USCIS' costs associated with adjudicating immigration benefit requests. The proposed fee schedule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and vet applicants, petitioners, and beneficiaries. See section V.A. of this preamble for a discussion of IEFA budget history and cost projections for this rulemaking. DHS also proposes to expand fee exemptions for certain applicants and petitioners for humanitarian benefits. Additionally, DHS proposes to establish distinct fees for different categories of petitions for nonimmigrant workers. DHS proposes to set a range of fees that vary by the nonimmigrant classification and to limit petitions for nonimmigrant workers to 25 named beneficiaries. DHS believes the proposed fees more accurately reflect the differing burdens of adjudication and will enable USCIS to adjudicate these petitions more effectively.

A. Summary of Economic Impacts

The fee adjustments, as well as changes to the forms and fee structures used by USCIS, would result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2023 through FY 2032), DHS estimates the annualized net costs to the public would be $532,379,138 discounted at 3- and 7-percent. Estimated total net costs over 10 years would be $4,541,302,033, discounted at 3-percent and $3,739,208,286 discounted at 7-percent.

The proposed changes in this rule would also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the Government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/petitioners include the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, USCIS' expansion of the electronic filing system to include more forms, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens.

Fee increases and other changes in this proposed rule would result in annualized transfer payments from applicants/petitioners to USCIS of approximately $1,612,133,742 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from applicants/petitioners to USCIS would be $13,751,827,819 at a 3-percent discount rate and $11,322,952,792 at a 7-percent discount rate.

Fee reductions and exemptions in this proposed rule would result in annualized transfer payments from USCIS to applicants/petitioners of approximately $116,372,429 discounted at both 3-percent and 7-percent. The total 10-year transfer payments from USCIS to applicants/petitioners would be $992,680,424 at a 3-percent discount rate and $817,351,244 at a 7-percent discount rate.

The annualized transfer payments from the Department of Defense (DoD) to USCIS would be approximately $222,145 at both 3- and 7-percent discount rates. The total 10-year transfer payments from DoD to USCIS would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-percent discount rate.

B. Summary of Proposed Provisions

This proposed rule includes the following proposals:

• Adjusting fees according to the schedule in Tables 1 and 26.

• Adding new fee exemptions for certain humanitarian programs and preserving the fee waiver requirements that are currently being followed.

• Removing fee exemptions that are based only on the age of the person submitting the request.

• Eliminating the $30 returned check fee.

• Incorporating biometrics costs into the main benefit fee and removing the separate biometric services fee.

• Requiring separate filing fees for Form I-485 and associated Form I-131 and Form I-765 filings.

• Establishing separate fees for Form I-129, Petition for Nonimmigrant Worker, by nonimmigrant classification.

• Revising the premium processing timeframe interpretation from calendar days to business days.

• Revising adoption-related requirements, including adding a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600, Supplement 3), and associated fees.

• Revising regulations related to genealogy searches, including establishing a fee for Form G-1566, Request for Certificate of Non-Existence.

• Miscellaneous technical and procedural changes.

• Creating lower fees for forms filed online.

C. Summary of Current and Proposed Fees

Table 1 summarizes the current and proposed fees. In addition, the proposed fees and exemptions are incorporated into the draft version of USCIS Form G-1055 as part of the docket for this rulemaking. In some cases, the current or proposed fee may be the sum of several fees. For example, several immigration benefit requests require an additional biometric services fee under the current fee structure. The table includes rows with and without the additional biometric services fee added to the Current Fee(s) column. The Current Fee(s) column represents the current fees in effect rather than the enjoined fees from the 2020 fee rule.

Throughout this proposed rule, the phrase “current fees” refers to the fees in effect and not the enjoined fees. In this proposal, DHS would eliminate the additional biometric services fee in most cases by including the costs in the underlying immigration benefit request fee. As such, the Proposed Fees(s) column does not include an additional biometric services fee. Some other benefit requests are listed several times because in some cases DHS proposes distinct fees based on filing methods, online or paper. DHS proposes to require fees for Forms I-131 and I-765 when filed with Form I-485. As such, Table 1 includes rows that compare the current fee for Form I-485 to various combinations of the proposed fees for Forms I-485, I-131, and I-765. We grouped the fees into different categories, such as Citizenship and Nationality, Humanitarian, Family-Based, Employment-Based, and Other. We included immigration benefit requests without fees in a No Fees category. DHS proposes to codify these no fee immigration benefit requests.

See, e.g.,

proposed 8 CFR 106.2(a)(58) through (60).

USCIS provides filing fee information on the All Forms page at

https://www.uscis.gov/forms/all-forms.

You can use the Fee Calculator to determine the exact filing and biometric services fees for any form processed at a USCIS Lockbox facility.

See

USCIS, Fee Calculator,

https://www.uscis.gov/feecalculator.

For a complete list of all USCIS fees, see Form G-1055, Fee Schedule, available from

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

BILLING CODE 9111-97-P

EP04JA23.000

These are fees that USCIS is currently charging and not those codified by the 2020 fee rule.

EP04JA23.001

EP04JA23.002

EP04JA23.003

EP04JA23.004

EP04JA23.005

EP04JA23.006

EP04JA23.007

EP04JA23.008

BILLING CODE 9111-97-C

III. Basis for the Fee Review

A. Legal Authority and Guidance

DHS is issuing this proposed rule consistent with INA sec. 286(m), 8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants”),

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

The longstanding interpretation of DHS is that the “including” clause in section 286(m) does not constrain DHS's fee authority under the statute. The “including” clause offers only a non-exhaustive list of some of the costs that DHS may consider part of the full costs of providing adjudication and naturalization services.

See

8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4, 2016).

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

DHS uses OMB Circular A-25 as general policy guidance for determining user fees for immigration benefit requests, with exceptions as outlined in section III.B of this preamble. DHS also follows the annual guidance in OMB Circular A-11 if it requests appropriations to offset a portion of Immigration Examinations Fee Account (IEFA) costs.

See

OMB Circular A-25, “User Charges,” 58 FR 38142, available at

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

(July 15, 1993) (revising Federal policy guidance regarding fees assessed by Federal agencies for Government services).

see also

USCIS, USCIS Preparing to Resume Public Services on June 4,

https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4

(last updated Sept. 16, 2001). At the date of publication of this proposed rule, ASC backlogs have mostly been eliminated.

• The Office of the Chief Information Officer's GE budget is projected to increase by $35.3 million (16 percent) to support the USCIS staffing requirements in the FY 2022/2023 fee review. The additional funding is required to provide IT support, equipment, and network services. This excludes projects funded from premium processing. As stated earlier, non-premium IEFA cost projections are the basis for the fee review budget.

• The budget includes an increase of $9.8 million at the National Records Center (NRC) to reduce the Freedom of Information Act (FOIA) backlog at the NRC in FY 2022/2023. DHS has requested appropriations to fund this additional spending. If USCIS receives appropriations, USCIS may be able to revise downward the cost projections funded by IEFA fees.

b. Payroll

USCIS projects that it must increase its IEFA non-premium pay budget by $1,038.6 million (45 percent) from $2,309.3 million in FY 2021 to $3,347.9 million in the FY 2022/2023 fee review period to meet its operational requirements. The payroll growth includes:

•

Pay and benefit adjustments for onboard staff:

$313.1 million. USCIS budget projections include increased costs associated with the Government-wide cost of living adjustment (COLA) assumption of 2.7 percent for FY 2022 and 1.6 percent for FY 2023.

The FY 2022 COLA assumption is based on President Biden's “Letter to the Speaker of the House and the President of the Senate on the Alternative Plan for Pay Adjustments for Civilian Federal Employment”, issued on August 27, 2021.

See

White House, “Letter to the Speaker of the House and the President of the Senate on the Alternative Plan for Pay Adjustments for Civilian Federal Employees” (Aug. 27, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/27/letter-to-the-speaker-of-the-house-and-the-president-of-the-senate-on-the-alternative-plan-for-pay-adjustments-for-civilian-federal-employees/.

The FY 2023 COLA assumption is based on the available DHS Resource Allocation Plan (RAP) guidance as of March 29, 2021.

•

Pay and benefits for new staff:

$590.0 million. Projected FY 2022 and FY 2023 workloads exceed current workload capacity by 10.2 percent, thereby requiring additional staff. The FY 2022 and FY 2023 Staffing Allocation Models (SAMs)

estimated an additional 1,921 positions are necessary to meet adjudicative processing goals and other USCIS mission objectives, including administrative functions. This additional staffing requirement reflects the fact that it takes USCIS longer to adjudicate many workloads than was planned for in the FY 2016/2017 fee rule and that workload volumes and operational needs have grown.

See

section V.B. for information on how workload and completion rates affect staffing forecasts. Outside of the SAMs, USCIS has identified the need for another 2,035 new positions to accommodate the Asylum Processing interim final rule (IFR) and the proposed increase in the refugee admissions ceiling to 125,000. See section V.2.c. of this preamble for more information on how the Asylum Processing IFR, 87 FR 18078 (Mar. 29, 2022), and other rulemakings affect the fee review budget.

The SAMs are SAS-based workforce planning tools that estimate the staffing requirements necessary to adjudicate the projected volume of workload receipts (in other words, applications and petitions).

On March 29, 2022, DHS and DOJ issued an interim final rule, Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (Asylum Processing IFR), to improve and expedite processing of asylum claims made by noncitizens subject to expedited removal, ensuring that those who are eligible for protection are granted protection quickly, and those who are not are promptly removed. The rule authorizes asylum officers within USCIS to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening.

See

87 FR 18078.

•

Realignment of 1,157 positions into the non-premium IEFA budget:

$135.5 million. This realignment includes moving 1,127 positions from IEFA premium processing funding ($129.8 million) and 30 positions that were previously funded by appropriated funds for the E-Verify program ($5.7 million) to IEFA non-premium funding. The 1,127 positions were temporarily funded out of the premium processing budget in the FY 2021 OP due to financial constraints. Funding these positions with IEFA non-premium resources will allow USCIS to redirect premium processing funds to infrastructure improvements, including investments in USCIS' digital capabilities, as well as backlog reduction efforts. USCIS is also realigning 30 positions from appropriated E-Verify program funding to IEFA non-premium funding to reflect the appropriate distribution of positions as identified in the Verification Division SAM. The SAM identified that the 30 positions are better attributed to the SAVE program, which is funded with IEFA non-premium funds. Therefore, USCIS accounts for these 30 positions as increased IEFA non-premium costs.

c. Related Rulemakings

As stated elsewhere in this preamble with regard to the premium processing rule and the DACA NPRM, simultaneously with this rule, DHS is engaging in multiple rulemaking actions that are in various stages of development.

See

86 FR 53736. DHS has considered and analyzed each of these other rules for peripheral, overlapping, or interrelated effects on this rule and has incorporated their effects, if any, into the supporting documentation, fee calculations, policies, and regulatory text for this proposed rule.

See

Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, Agency Rule List-Spring 2022, Department of Homeland Security at

https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=1600

(last accessed July 26, 2022).

DHS is proposing changes to the USCIS fee schedule in this rule that may be necessary to implement the rule titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.”

See

87 FR 18078 (Mar. 29, 2022) (Asylum Processing IFR). In the Asylum Processing IFR, DOJ and DHS amended the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. The changes are expected to improve the Departments' ability to consider the protection claims of individuals encountered at or near the border and placed into expedited removal more promptly while ensuring fundamental fairness.

DHS includes an estimated cost of the Asylum Processing IFR in our calculation of the proposed fees to recover full costs of USCIS implementation of the rule. Consistent with the reasoning described in the Asylum Processing IFR, DHS has used the primary estimate of annual costs in the model used to calculate the fees in this rule.

Use of this figure results in costs of an average $425.9 million per fiscal year during the biennial period.

This funding, which is reflected in the figures above, would support 2,035 new staff and associated GE. These expenses constitute approximately 31 percent of the total projected increase in budgetary requirements from FY 2021 to FY 2022/2023.

See

87 FR 18078 (Mar. 29, 2022), at 18206.

DHS acknowledges that, by using the middle of the range of costs, if actual costs are higher than that, then the USCIS fee schedule will be set at a level that is less than what will be required to recover all of the costs added by the Asylum Processing IFR, all other factors remaining the same. Estimated annual costs of the Asylum Processing IFR (mid-range estimate): FY 2022 total costs of $438.2 million plus FY 2023 total costs of $413.6 million equals $851.8.

See

86 FR 46933-46934. Average total costs of FY 2022/2023 equal $425.9 million.

DHS proposes to include the middle of the three Asylum Processing IFR estimates to plan for these additional staff and other resources. Implementation of this rulemaking is subject to resource constraints, including available IEFA non-premium funding and revenue. When USCIS does not have the resources that it needs to meet its goals, processing times increase and the case processing backlog grows. USCIS evaluates its budget and revenue for operational purposes annually, separate from the fee review process. For example, as mentioned above, the OP is a budget for the current year and is separate from the fee review budget estimates for future years. If actual revenue in FY 2022 or FY 2023 is higher than the estimates included in this proposal, then USCIS may dedicate additional staff and resources to the Asylum Processing IFR. If actual revenue is lower than the estimates in this proposal, then USCIS may dedicate fewer resources to implementing the Asylum Processing IFR. Relatedly, if the ultimate costs of implementing the Asylum Processing IFR exceed the estimates included in this proposal, this will strain the resources available to USCIS and processing backlogs may grow. Future fee review budget estimates will consider current and planned DHS and USCIS policies.

If USCIS identifies alternative funding mechanisms or resources for the Asylum Processing IFR other than IEFA non-premium funds, the fee review budget projections may be reduced accordingly. Therefore, with the implementation realities of the Asylum Processing IFR and possible congressional appropriations to fund that rule, DHS may reduce USCIS' estimated resource requirements for FY 2022/2023 and the fees necessary to generate those resources in a final fee rule.

d. Cost Summary

Table 5 below is a crosswalk summary of the FY 2021 OP to the FY 2022 and FY 2023 cost projections. It accounts for payroll and non-payroll for on-board and new staff, other resource requirements or adjustments, and the removal of costs associated with temporary programs. The FY 2022/2023 IEFA non-premium average annual budget requirement is estimated to be $5,150.7 million. This represents a $1,374.4 million, or 36.4 percent, increase over the FY 2021 IEFA non-premium budget of $3,776.3 million. As previously discussed, the primary cost driver is payroll, which accounts for 76 percent of the increase.

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3. FY 2022/2023 Revenue Projections

USCIS' revenue projections are informed by internal immigration benefit request receipt forecasts agreed to by the USCIS Volume Projection Committee (VPC).

See

section V.B.1.a of this preamble for more information on the VPC.

USCIS also uses 12 months of historical actual fee-paying receipts to account for fee-waiver and fee-exemption trends. To project USCIS IEFA non-premium revenue, USCIS develops application volume projections using all available data. USCIS then considers the fee-paying rate for each application and petition type to reflect the fact that not all applicants and petitioners pay fees due to fee waivers and fee exemptions. USCIS uses actual revenue collections from August 2019 to July 2020 as a basis for the fee-paying assumptions in the FY 2022/2023 revenue projections.

See

section V.B.1 of this preamble for a more detailed discussion of USCIS volume projections and fee-paying rates.

USCIS has developed the VPC, a panel of agency experts, for systematic immigration benefit request filing volume forecasting for use in fee studies. USCIS has considered other business forecasting and structured forecasting approaches and models but has found that the VPC has a reliably accurate history of filing volume prediction. Two annual VPC meetings consider draft and final volume projections for several years ahead. One of three annual VPC meetings reviews the forecasts for the previous year, compares them to actual receipts, and discusses future improvements for greater accuracy.

USCIS' current fee schedule is expected to yield $3.28 billion of average annual revenue during the FY 2022/2023 biennial period. This represents an increase of $0.80 billion, or 32 percent, from the FY 2016/2017 fee rule projection of $2.48 billion.

See

81 FR 26911 (May 4, 2016). The projected revenue increase is based on the fees established by the FY 2016/2017 fee rule and more anticipated fee-paying receipts. The FY 2016/2017 fee rule forecasted 5,870,989 total workload receipts and 5,140,415 fee-paying receipts.

See

81 FR 26923-26924. However, the FY 2022/2023 fee review forecasts 7,601,200 total workload receipts and 6,510,442 fee-paying receipts.

See

section V.B.1. of this preamble for more information on the workload and fee-paying receipt forecasts. This represents a 29 percent increase to workload and 26 percent increase to fee-paying receipt volume assumptions. Despite the increase in projected revenue above the FY 2016/2017 fee rule projection, this additional revenue is projected to be insufficient to recover USCIS' increased costs, as discussed in the next section.

4. Projected Cost Revenue Differential

USCIS identifies the difference between anticipated costs and revenue, assuming no changes in fees, to determine whether the existing fee schedule is sufficient to recover the projected full cost of providing immigration adjudication and naturalization services or whether a fee adjustment is necessary. Table 6 summarizes the projected cost and revenue differential. Non-Premium Revenue represents a revenue forecast using the current fees. Non-Premium Cost represents a budget forecast. In any fee review, if the revenue forecast is less than the budget forecast, then USCIS may propose new or increased fees to cover the budget-revenue shortfall. Otherwise, USCIS may reduce certain costs or services to cover the difference. Summary values may vary due to rounding.

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Historically, and for the purpose of the fee review, USCIS reports costs and revenue as an average over the 2-year period. In Table 6, USCIS averages FY 2022 and FY 2023 costs and revenue to determine the projected amounts to be recovered through this rule. Based on current immigration benefit and biometric services fees and projected volumes, USCIS expects that if fees remained at their current levels, those fees would generate $3.28 billion in average annual revenue in FY 2022 and FY 2023. For the same period, the average annual cost of processing those immigration benefit requests and providing biometric services is $5.15 billion. This yields an average annual deficit of $1,868.2 million. In other words, USCIS expects the costs of fulfilling its operation requirements in FY 2022/2023 will exceed projected total revenue under its current fee structure.

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

1. Reduce projected costs;

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

3. Adjust fees with notice-and-comment rulemaking.

Although USCIS continues to pursue efforts to increase agency efficiency, DHS believes that reducing the projected costs to equal the projected revenue would degrade USCIS operations funded by the IEFA; therefore, this is not a viable alternative to the proposed rule. The projected amount of funding necessary to meet USCIS' operational requirements would exceed USCIS' projected carryover in both FY 2022 and FY 2023, so USCIS is not able to rely on those funds to cover the difference between projected revenue and costs.

Likewise, USCIS estimates that recovered revenue from prior year obligations will be insufficient. USCIS estimates that it may recover $91.9 million in FY 2022 and $94.2 million in FY 2023 for the non-premium IEFA. Therefore, DHS proposes to increase revenue through the fee adjustments described in detail throughout this rule. To the extent USCIS is successful in measurably reducing completion rates or achieving other productivity gains, DHS will re-evaluate the fee schedule in subsequent fee rules.

In the docket for this proposed rule, the supporting documentation has more information on carryover estimates.

See

the section titled IEFA Non-Premium Carryover Projections and Targets.

B. Methodology

When conducting a fee review, USCIS reviews its recent operating environment to determine the appropriate method to assign costs to immigration benefit requests, including biometric services. USCIS uses ABC, a business management tool that assigns resource costs to operational activities and then to products, services, or both. USCIS uses commercially available ABC software to create financial models. These models determine the cost of each major step toward processing immigration benefit requests and providing biometric services. This is the same methodology that USCIS used in the last five fee reviews, and it is the basis for the current fee structure. Following the FY 2016/2017 fee rule, USCIS identified several key methodology changes to improve the accuracy of its ABC model. For more information on these changes, please refer to the Changes Implemented in the FY 2022/2023 Fee Review section of the supporting documentation located in the docket of this rule.

1. Volume

USCIS uses two types of volume data in the fee review: workload and fee-paying volume. Workload volume is a projection of the total number of immigration benefit requests that USCIS will receive in a fiscal year. Fee-paying volume is a projection of the number of customers that will pay a fee when filing requests for immigration benefits. Not all customers pay a fee. Those customers to whom a fee exemption applies or for whom USCIS grants a fee waiver are represented in the workload volume, but not the fee-paying volume. Customers who pay a fee fund the cost of processing requests for fee-waived or fee-exempt immigration benefit requests. Tables 7 and 8 compare the FY 2016/2017 fee rule volume forecasts to the volume forecasts for this rulemaking similar to previous fee rules.

See e.g.,

81 FR 26922-26924. Actual receipts from prior years inform those forecasts, but they may not be the only reason for differences. We explain some of the larger differences in the paragraphs that follow Tables 7 and 8. For information on actual receipts from previous fiscal years, see Appendix Table 13 in the supporting documentation.

DHS has considered the effects on this rule of all intervening legislation, related rulemakings, and policy changes that USCIS knows have occurred or will occur by the time the rule is signed. However, DHS does not and cannot assert that it knows and has considered every policy change that is planned or that may occur at all levels and agencies of the U.S. Government that may directly or indirectly affect this rule. Immigration policy changes frequently and USCIS must use the best cost data available at a point in time. Initiatives may come about without being incorporated in the proposed and final fees simply due to the time required for rule development and finalization. That necessary shortcoming is ameliorated by the CFO Act requirement that DHS address the effects of the constantly evolving immigration policy environment on its fees, costs, and services every 2 years, as DHS has done through its biennial fee reviews.

a. Workload Volume and Volume Projection Committee

USCIS uses statistical modeling, immigration receipt data, and internal assessments of future developments (such as planned immigration policy initiatives)

to develop workload volume projections. All relevant USCIS directorates and program offices are represented on the VPC. The VPC forecasts USCIS workload volume using statistical forecasts and subject-matter expertise from various directorates and program offices, including the service centers, National Benefits Center, RAIO, and regional, district, and field offices. Input from these offices helps refine the

statistical volume projections. The VPC reviews short- and long-term volume trends. In most cases, time series models provide volume projections by form type. Time series models use historical receipt data to determine patterns (such as level, trend, and seasonality) or correlations with historical events to forecast receipts. When possible, other, more detailed models are also used to determine relationships within and between different benefit request types. At VPC meetings, the committee members deliberate on the provided forecast, consider alternatives, and agree to a forecast by group consensus. Workload volume is a key element used to determine the USCIS resources needed to process benefit requests within established adjudicative processing goals. It is also the primary cost driver for assigning activity costs to immigration benefits and biometric services

in the USCIS ABC model. Previous fee reviews also relied on VPC forecasts.

DHS explains some of the larger differences in the paragraphs after Table 7. Values below are the average of 2 years, rounded to whole numbers. There may be slight differences because of rounding.

As fully explained later in this preamble, DHS is removing biometric services as a separate fee in this rule, except as associated with an Application for Temporary Protected Status and certain other programs. Accordingly, N/A is included in the average annual FY 2022/2023 projected workload receipts and difference columns for biometrics in Table 7.

The FY 2010/2011 fee rule was the first to use VPC workload estimates in a fee review.

See,

USCIS, FY 2010/2011 Immigration and Examinations Fee Account Fee Review (June 11, 2010), available at

https://www.regulations.gov/document/USCIS-2009-0033-0007.

All subsequent fee reviews and fee rules used VPC estimates.

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EP04JA23.018

Combines both Forms I-526 and I-526E. USCIS revised Form I-526 and created Form I-526E as a result of the EB-5 Reform and Integrity Act of 2022.

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BILLING CODE 9111-97-C

Differences between the two sets of workload estimates may be unrelated to any proposed fee or policy change. As mentioned earlier, these estimates are based on historical data, statistical analysis, and subject matter and policy input. For example, the Form I-90 forecast consists of two combined forecasts: renewals and replacements. Both Form I-90 forecasts use a time series model that allows for seasonality. As another example, the VPC establishes two Form N-400 forecasts: civilian and military. The statistical model that the VPC considers for the civilian Form N-400 forecast leverages survival analysis to include individual microdata and reflects the differences in application patterns of previous naturalization applicants. USCIS' statistical model uses multiple factors to determine the likelihood of naturalization of members of the pool of potential applicants, including the length of time an individual has been a lawful permanent resident (LPR), as well as an individual's country of origin, visa type, and age. In contrast, the military naturalization forecast is a time series model that does not use survival analysis. USCIS evaluates a variety of models and methods to determine the best forecast for each workload based on the available data and historical trends.

Some differences in workload are the result of proposed changes, in whole or in part. Part of the large differences for Forms I-131 and I-765 relate to a proposed change to Form I-485 fees and interim benefits.

See

section VIII.H.1 for more information. In the FY 2016/2017 fee review, USCIS determined the workload volume for Forms I-765 and I-131 that are not associated with Forms I-485 (in other words, interim benefits).

See

81 FR 26918 and 73300. The FY 2016/2017 column in Table 7 represents only the standalone workload for Forms I-131 and I-765 because all the interim benefit workloads bundled with Form I-485 are counted in the row for Form I-485. The FY 2022/2023 column of Table 7 includes workloads for Forms I-131 and I-765 that are either standalone or interim benefits concurrently filed with Form I-485. Other factors contributed to

the differences, such as historical trends. There is no biometric services workload forecast for FY 2022/2023 (apart from the TPS workload, as discussed in section E.2 below) because of the proposal to incorporate the cost of providing biometric services in the underlying form fees, as explained in section VIII.E of this preamble.

A comparison of the two sets of forecasts, in isolation, may not illustrate USCIS trends in the several years between fee reviews. For example, when USCIS estimated workload for the FY 2016/2017 fee rule, it had been several years since receipts for Form I-140 were over 100,000. As such, the receipt estimate was reasonable at the time and consistent with receipts from FY 2009 to 2014. Since FY 2015, Form I-140 receipts are routinely over 100,000. There could be a number of reasons for this change, such as availability of employment-based visas or increased demand following economic or policy changes in the intervening years. As another example, filing trends for Form I-539 have changed significantly since the FY 2016/2017 fee rule. The forecast for FY 2022/2023 is based on Student and Exchange Visitor Information System data, which included 225,000 Form I-539 filings annually beginning in January 2021. DHS expects the vast majority of this workload to be optional practical training (OPT) and science, technology, engineering, and mathematics optional practical training (STEM OPT) extensions. As yet another example, the adoption workload has been trending downward for many years. Comparing only two data points in Table 7 does not show that the difference is just the continuation of a gradual trend over many years. Finally, Table 7 does not represent the entirety of USCIS workload. It excludes some workloads without fees. For example, asylum and refugee workloads (credible fear, reasonable fear, Forms I-589 and I-590) and other humanitarian workloads (for example, Forms I-914 and I-918) are excluded from the tables 7 and 8. These omitted workloads are part of the ABC model so that USCIS can estimate their total cost. However, only fee-paying volumes generate revenue for USCIS.

See

section III.C, Full Cost Recovery, of this preamble for more information. As explained later in this preamble, the proposed fees exclude temporary or uncertain workloads, such as TPS and DACA.

See

sections V.C. and V.D of this preamble.

b. Fee-Paying Volume

USCIS uses historical revenue and receipt data to determine the number of individuals who paid a fee for each immigration or naturalization benefit request. Fee-paying percentages by form are usually steady year over year. USCIS uses monthly fee-paying percentages in its forecasts to capture seasonality during the year. Additionally, policy changes, legislation, and executive orders are frequently some of the factors that affect fee-paying percentages, so older historical data to calculate the percentages can be counter-productive. In this proposed rule, USCIS therefore referenced revenue and receipts data from August 2019 to July 2020 for fee-paying figures. Total revenue for an immigration benefit request is divided by its fee to determine the historical number of fee-paying immigration benefit requests. Fee-paying receipts are compared to the total number of receipts (workload volume) to determine a fee-paying percentage for each immigration benefit request. When appropriate, projected fee-paying volume is adjusted to reflect filing trends and anticipated policy changes. These projections include the effects of changes that DHS is proposing in this rule.

DHS explains some of the larger differences in the paragraphs after Table 8. Values below are the average of two years, rounded to whole numbers. There may be slight differences because of rounding.

Table 8 compares the projections from the FY 2016/2017 fee rule with the projections of the FY 2022/2023 fee review. As discussed, these projections are based on a number of factors, including historical data of actual receipts. Although the FY 2016/2017 Fee Review differs to some degree from the actual receipts since the 2016 fee rule, USCIS compares fee projections against each other, rather than against actual receipts, to ensure consistency.

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EP04JA23.022

Combines both Forms I-526 and I-526E. USCIS revised Form I-526 and created Form I-526E as a result of the EB-5 Reform and Integrity Act of 2022.

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All fee-paying workload is a subset of total workload, as discussed in the previous section. As such, changes to workload may affect the fee-paying projections. As explained above, USCIS estimates fee-paying receipts by applying a percentage of fee-paying receipts to the workload forecast. For a general explanation on how fee-paying volumes affect fees,

see

section VI, Fee Waivers, of this preamble. Some differences in fee-paying projections are the result of proposed changes, in whole or in part. For example, part of the large differences between the past and current projections for Forms I-131 and I-765 relate to the proposed change to Form I-485 fees and interim benefits.

See

section VIII.H.1 for more information. In the FY 2016/2017 fee review, USCIS determined the fee-paying volume for Forms I-765 and I-131 that are not associated with Forms I-485.

See

81 FR 26918 and 73300. The FY 2016/2017 column in Table 8 represents the forecasted standalone fee-paying receipts only for Forms I-131 and I-765 because all interim benefit fee-paying receipts bundled with Form I-485 are counted in the row for Form I-485.

See

81 FR 26919 and 26924. The FY 2022/2023 column of Table 8 includes fee-paying receipts for Forms I-131 and I-765 that are either standalone or interim benefits concurrently filed with Form I-485. Other factors contributed to the differences, such as historical trends. There is no workload forecast for biometric services for FY 2022/2023 because of the proposed elimination of the discrete biometric services fee for most benefit requestors, as explained in section VIII.E of this preamble.

Table 9 is a comparison of fee-paying percentages in the FY 2016/2017 fee rule and this proposed rule. It divides the fee-paying volumes in Table 8 by the workload volumes in Table 7 to calculate the fee-paying percentages. There may be slight differences because of rounding.

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2. Completion Rates

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

USCIS requires most employees who adjudicate immigration benefit requests to report adjudication hours and case completions by benefit type. The reported hours and counts are aggregate information that does not allow USCIS to estimate effects of individual policy changes. USCIS calculates completion rates by dividing the adjudication hours by the number of completions for the same period. As such, completion rates represent an average hours per completion. In addition to using these data to determine fees, completion rates help determine appropriate staffing allocations to handle projected workload. The USCIS Office of Performance and Quality (OPQ), field offices, regional management, and service centers continually review the data to capture updates or implementation of new processes and ensure continued accuracy. The continual availability of the information enables USCIS to update cost information for each fee review. The completion rates may change between fee reviews based on more recently reported hours and counts. Possible reasons for completion rate changes include changes to a form, policy changes, and more recently, effects of the pandemic. USCIS relied on completion rates before the pandemic to remove this effect from the fee review. When employees who adjudicate immigration benefit requests do not report adjudication hours, USCIS uses subject-matter expertise to estimate completion rates.

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

•

I-131A, Application for Carrier Documentation.

In this proposed rule, DHS anticipates that the Department of State (DOS) Bureau of Consular Affairs, located outside of the United States, would process all Form I-131A workload. Thus, USCIS projects it will have no hours or workload for Form I-131A in FY 2022/2023 and does not calculate a completion rate for this proposed rule.

•

H-1B Registration Process.

Before a petitioner is eligible to file an H-1B cap-subject petition (including those eligible for the 20,000-petition advanced degree exemption), the prospective petitioner must register electronically through the USCIS website and have their registration selected.

See

84 FR 888 (Jan. 31, 2019). USCIS does not adjudicate registrations received through the H-1B registration process because the process is automated.

•

USCIS Immigrant Fee.

USCIS does not adjudicate applications for an immigrant visa. Rather, individuals located outside of the United States apply with a DOS consular officer for an

immigrant visa. If DOS issues the immigrant visa, the individual may apply with a Customs and Border Protection (CBP) officer at a port of entry for admission to the United States as an immigrant. This fee represents USCIS' costs to create and maintain files and to issue permanent resident cards (also known as “Green Cards”) to individuals who go through this process.

See

8 CFR 103.7(b)(1)(i)(D) (Oct. 1, 2020), proposed 8 CFR 106.2(c)(3).

•

TPS.

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

See

81 FR 73312-73313. TPS designations may be terminated under current law or may decrease due to a reduction in the eligible population. Termination of the program, in whole or in part, after the fees are set would result in unrealized revenue and a commensurate budgetary shortfall. After the fee schedule is effective, fees cannot be adjusted until the next fee schedule notice-and-comment rulemaking. Thus, temporary programs subject to termination based on changed circumstances are generally not included in the fee-setting model. Therefore, USCIS excludes the completion rate, as well as workload volumes and marginal costs, for Form I-821, Application for Temporary Protected Status, and associated Form I-765 filings from discussion in this proposed rule. DHS cannot increase the $50 initial statutory registration fee permitted under INA sec. 244(c)(1)(B) or establish a re-registration fee for TPS. Therefore, to recover some of the costs of administering the TPS program, USCIS will continue to charge the biometric services fee, where required, and the fee for an employment authorization document (EAD), as permitted under 8 U.S.C. 1254b.

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See

USCIS, Questions and Answers: Credible Fear Screening available at

https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening

(last updated July 15, 2015).

USCIS does not track distinct refugee travel document completion rates, nor does it track rates by applicant age group. The completion rate here is for a re-entry permit, a similar travel document.

EP04JA23.030

EP04JA23.031

See

USCIS, Questions and Answers: Reasonable Fear Screening, available at

https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-reasonable-fear-screenings

(last updated June 18, 2013).

BILLING CODE 9111-97-C

3. Assessing Proposed Fees

Historically, as a matter of policy, DHS has used its discretion to limit fee increases for certain immigration benefit request fees that would be overly burdensome on applicants, petitioners, and requestors if set at ABC model output levels. Previous proposed IEFA fee schedules referred to limited fee increases as “low volume reallocation” or “cost reallocation.”

Despite the two separate phrases, the calculation for both is the same. In this proposed

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

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