Adjustment to the Examinations Fee Schedule

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1384-92; AG ORDER NO. 1893-94]

RIN 1115-AD18

Adjustment to the Examinations Fee Schedule

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule adjusts the Immigration and Naturalization Service

(INS) Examinations Fee schedule. The increases are necessary to

generate sufficient revenue to recover the costs of providing

adjudication and naturalization services. This rule ensures that funds

will be available to continue providing services to users while keeping

increases as small as possible.

EFFECTIVE DATE: July 14, 1994.

FOR FURTHER INFORMATION CONTACT:

Donald L. Lowry, Staff Accountant, Fee Analysis and Operations Branch,

Office of Finance; Immigration and Naturalization Service; 425 I

Street, NW.; room 6240; Washington, DC 20536-0002; telephone 202-616-

2754.

SUPPLEMENTARY INFORMATION:

I. Introduction

The INS published a proposed rule on January 10, 1994, at 59 FR

1308, to adjust the current Examinations Fee schedule. The proposed

rule was initially published with a 30-day comment period. To ensure

that the public had ample opportunity to review and comment on the

proposed rule, the comment due date was extended from February 9, 1994

to March 11, 1994 (59 FR 5740, Feb. 8, 1994).

The fee adjustment is needed to comply with specific Federal

immigration laws and the Federal user fee statute and regulations,

which require the recipients of special benefits from Government

services that are not directed to the public at large to bear the costs

to the Government of providing those services. The fees amended in this

rule result from an analysis of adjudication and naturalization

services and associated costs for fiscal year 1993 and projected costs

for fiscal year 1994. The revised fees are calculated to recover the

costs of providing these special services and benefits.

Comments were received from 77 commenters, including 46 performing

arts organizations, 15 agricultural organizations, 7 employers, 3

attorney organizations, 3 individual attorneys, 2 voluntary service

organizations, and 1 member of Congress. The Department carefully

considered all comments before preparing this final rule. Following is

a discussion of the comments.

II. Summary of Comments

A. Petition for a Nonimmigrant Worker (Form I-129)

Sixty-six commenters, largely performing arts organizations and

agricultural organizations, expressed dissatisfaction with the proposed

fee schedule for the Petition for a Nonimmigrant Worker (Form I-129).

The commenters opposed increasing the minimum fee from $80 ($70 base

fee plus $10 fee per beneficiary) to $120 and the per worker fee from

$10 to $20. Fifteen of these same commenters questioned the

justification for assessing a per-worker fee for petitions with

multiple unnamed beneficiaries.

In response to the public's comments, INS is making the following

changes: Petitioners with multiple unnamed beneficiaries will no longer

be assessed any per worker fee, and the base fee will increase from $70

to $75. The $5 increase is consistent with the general 7.5 percent

increase to the current fee schedule, which was discussed in the notice

of proposed rule.

On January 11, 1994, INS promulgated a final rule, 59 FR 1455,

which allows a worker's dependents to be included in a petitioner's

request for an extension of stay or change of status, where there is

only one worker in the petition. That provision will go into effect at

the time the form providing for this process becomes available. This

rule sets a fee of $10 for each dependent included on an extension of

stay or change of status request. Dependents of beneficiaries covered

by multiple worker petitions must continue to file requests for an

extension of stay or change of status on an Application to Extend/

Change Nonimmigrant Status (Form I-539).

Accordingly, the new fee structure for the Petition for a

Nonimmigrant Worker will be as follows:

Petition With Unnamed Beneficiaries

--Fee of $75 per petition.

Petition With Named Beneficiaries

--Base fee of $75 per petition plus either:

--$10 per worker if requesting consulate or port-of-entry notification

for visa issuance or admission;

--$80 per worker if requesting a change of status; or

--$50 per worker if requesting an extension of stay. If filing an

extension of stay or change of status for one worker, dependents may be

included for a fee of $10 per dependent.

Two additional comments related to I-129 processing were received.

One commenter stated that the current procedure includes Consulate or

port-of-entry notification for visa issuance or admission purposes and

the proposed procedure does not discuss this notification. The

commenter questioned whether notification would continue. This rule

amends only the Examination Fee schedule and does not change existing

procedures; as noted above, this notification will continue.

One commenter also questioned the procedural change related to the

$10 fee for each dependent of a beneficiary worker. The commenter

stated that the beneficiary worker may be transferred to the United

States several months in advance of that person's family members and

questioned whether this delay between the two dates would present a

problem for Consulate or port-of-entry processing.

Again, this rule only sets the fee for dependents included on an

extension of stay or change of status request. The final rule

promulgated at 59 FR 1455 provides for dependents to be included on a

request for an extension of stay or change of status. An original

petition is granted solely on behalf of the worker; the consular

officer issues visas to dependents separately. Accordingly, the

commenter's concerns are unfounded.

B. Application for Employment Authorization (Form I-765)

One commenter objected to the $10 increase for the employment

authorization document (EAD). The commenter stated that EADs for asylum

applicants are valid for only 6 months and that it is unfair and

unreasonable to require an asylum applicant and dependent family

members to pay a $70 fee every 6 months. The commenter suggests that if

EAD cards were renewed for a significant period of time, such an

increase would not be an unfair burden on the applicant.

The increase in the EAD fee is necessary to recover the costs of

adjudicating the application. Under 8 CFR 208.7, an interim EAD for an

asylum applicant may be granted for a period not to exceed 1 year.

Although INS has the discretion to grant an EAD for a period of 6

months, most asylum EADs are valid for 1 year. Consequently, the

situation described by the commenter should not arise frequently.

C. Application to Register Permanent Residence or Adjust Status (Form

I-485)

One commenter objected to the $10 increase in fees for filing the

I-485 and suggested a family ceiling on the fees charged. The commenter

stated that the other costs associated with filing an I-485, such as

the required physical examination, make the total costs prohibitive for

a family.

The INS recognizes the commenter's concerns. However, it is not

possible for INS to set a family ceiling and recover the costs of

adjudicating applications through user fees, as required under section

286(m) of the Immigration and Nationality Act (INA). However, the fees

for applicants under the age of 14 are $100, an increase of only $5. It

should also be noted that fee waivers are available on a case-by-case

basis, under 8 CFR Sec. 103.7(c).

D. Application for Naturalization (N-400) and Application for

Certificate of Citizenship (N-600)

One commenter criticized INS for increasing naturalization fees.

The commenter opposed the increases stating that the income of many

immigrant families is relatively low, that increased rates of

naturalization are in our national interest, and that concerns about

INS financial management and service delivery have yet to be resolved.

The INS recognizes the commenter's concern. However, as stated

above, under section 286(m) of the INA, INS is required to recover the

costs of adjudicating naturalization applications through user fees.

Alternative revenue sources are not available. Increased naturalization

fees are necessary to avoid applicants for other benefits paying higher

fees to absorb the costs not recovered through the naturalization fees.

In order to recover the costs, the naturalization fees must be

increased.

E. Meaningful Opportunity To Comment on the Proposed Rule

One commenter stated that the public has been denied a meaningful

opportunity to comment on the proposed rule because the proposed rule

did not provide sufficient information to do so. The INS believes that

sufficient information was provided in the proposed rule. Under the

proposed rule, supporting documentation was available upon request and

was provided to commenters who requested it. In addition, the comment

period was extended an additional 30 days so that the public would have

ample opportunity to fully review and comment on the proposed rule.

F. Indirect Costs Charged to the Examinations Fee Account

One commenter stated that certain functions in the legal

proceedings program, such as adversary appearances, are not

appropriately charged to the Examinations Fee Account. In 1992, INS

performed a comprehensive review of the work that should be properly

charged to the INS user fee accounts, and concluded that these legal

costs are an appropriate and necessary expense of the adjudication and

naturalization service process.

The same commenter stated that the proposed rule did not explain

what management and administration (M&A) positions and functions are

included in indirect costs, so that the commenter could not determine

if they were appropriate. The proposed rule used the term management

and administrative (M&A) in a descriptive sense. As commonly used, M&A

refers to the costs of providing accounting, budget, personnel, equal

employment opportunity, contracting and procurement, and general

administration services. The proposed rule used the example of the

costs of mail processing in discussing how the distribution-key concept

works in allocating indirect costs among various accounts. From the

example and from the general understanding of the term ``M&A,'' INS

believes that sufficient information was given to allow a fair

opportunity to comment on the appropriateness of charging M&A as

indirect costs to the Examinations Fee Account.

G. Proportional Assignment of Indirect Costs to Each Examinations Fee

One commenter stated that INS did not explain why indirect costs

are assigned in an ``across-the-board'' manner, rather than

apportioning the indirect costs in the same ratio as the direct cost of

the application. Various methods for allocating indirect costs exist;

INS considers the current method to be reasonable. As INS continues to

refine its fee structure, alternative allocation methodologies will be

evaluated.

H. Plan to Improve Service

One commenter stated that the proposed rule did not discuss plans

to improve service, such as expansion of INS service centers,

elimination of backlogs, and acceleration of processing times.

Improvement efforts have been focused on processing more

applications at the service centers and reducing the adjudicative work

at the district offices. The expansion of centralized processing at the

service centers is expected to result in expedited processing of

routine cases. The district offices will retain adjudicative

responsibilities for applications necessitating an interview or complex

or unique adjudications where personal contact is necessary. The INS

expects that staff will be shifted among district offices and service

centers based on workload requirements.

Implementation of an automated system at district offices and

continued improvement of that system for service center operations is

also expected to improve productivity. This automated system, called

CLAIMS, integrates many of the manual processes or discrete automated

processes that adjudicators use now. The CLAIMS system is currently

operational in the four INS service centers; in FY 1994, it will be

installed at one district office. Plans for expansion to other sites

and continued system enhancements are under constant review and

dependent upon funding availability.

I. Fee Basis

One commenter stated that the proposed fees appear to be based on

faulty or incomplete data and do not appear to be rationally related to

the real work required to process any given application. As discussed

in the proposed rule, INS examined the relevant costs of the

Examinations Fee Account and computed the percentage revenue increase

required to cover the costs, and that percentage, with limited

exceptions, was applied to the existing fee schedule.

The INS also considered the feasibility of basing the proposed fees

on 1992 costs measurements. The INS rejected this approach because of

problems with 1992 data caused by the transition to a more automated

system of productivity measurement. At this time, the current fee

schedule, with specifically identified adjustments, reflects the best

available data on costs, which is consistent with Office of Management

and Budget and Department of Justice guidance. Future fee adjustments

will reflect efforts to refine direct and indirect cost definitions and

measurements.

The same commenter stated that the inclusion of inspection costs

was not explained in the proposed rule. The costs of the Inspections

program attributed to the Examinations Fee Account are exclusively

related to examinations work performed by land border inspectors during

periods in which they are not performing inspections. This allocation

of adjudication workload to inspectors permits more efficient use of

resources and results in reduced costs.

III. Fee Adjustments

The fee adjustments, as adopted in this rule, are shown in Exhibit

1.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it

certifies that this rule will not have a significant economic impact on

a substantial number of small entities. This rule adjusts the current

Examinations Fee schedule. Its financial impact on users of the

services is small. In most cases, the fee increase is $5.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

and Naturalization Service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review, because approximately 4 million people per annum will be

assessed a user fee to recover the costs of providing adjudication and

naturalization services.

Executive Order 12612

The regulation will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12606

The Attorney General certifies that she has assessed this rule in

light of the criteria in Executive Order 12606 and has determined that

it will not have a significant negative impact on family well-being.

The information collection requirements contained in this rule have

been cleared by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. Clearance numbers for these

collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Fees, Forms, Freedom of information, Privacy,

Reporting and recordkeeping requirements, Surety bonds.

Accordingly, part 103 chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. Section 103.7, paragraph (b)(1) is amended by revising the

entries listed to read as follows:

Sec. 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

Form I-17. For filing an application for school approval, except in

the case of a school or school system owned or operated as a public

educational institution or system by the United States or a state or

political subdivision thereof--$140.

Form I-90. For filing an application for Alien Registration Receipt

Card (Form I-551) in lieu of an obsolete card or in lieu of one lost,

mutilated or destroyed, or in a changed name--$75.

Form I-102. For filing an application (Form I-102) for Arrival-

Departure Record (Form I-94) or Crewman's Landing (Form I-95), in lieu

of one lost, mutilated, or destroyed--$65.

Form I-129. For filing a petition for a nonimmigrant worker--If a

petition with unnamed beneficiaries, a fee of $75 per petition. If a

petition with named beneficiaries, a base fee of $75 plus: --$10 per

worker if requesting consulate or port-of-entry notification for visa

issuance or admission; --$80 per worker if requesting a change of

status; or --$50 per worker if requesting an extension of stay. If

filing an extension of stay or change of status for one worker,

dependents may be included for a fee of $10 per dependent.

* * * * *

Form I-130. For filing a petition to classify status of alien

relative for issuance of immigrant visa under section 204(a) of the

Act--$80.

Form I-131. For filing an application for issuance of reentry

permit--$70.

Form I-140. For filing a petition to classify preference status of

an alien on basis of profession or occupation under section 204(a) of

the Act--$75.

* * * * *

Form I-192. For filing an application for discretionary relief

under section 212(d)(3) of the Act, except, in an emergency case, or

where the approval of the application is in the interest of the United

States Government--$90.

Form I-193. For filing an application for waiver of passport and/or

visa--$95.

Form I-212. For filing an application for permission to reapply for

an excluded or deported alien, an alien who has fallen into distress

and has been removed as an alien enemy, or an alien who has been

removed at Government expense in lieu of deportation--$95.

* * * * *

Form I-360. For filing a petition for an Amerasian, Widow(er), or

Special Immigrant--$80, except there is no fee for a petition seeking

classification as an Amerasian.

Form I-485. For filing an application for permanent residence

status or creation of a record of lawful permanent residence--$130 for

an applicant 14 years of age or older; $100 for an applicant under the

age of 14 years.

* * * * *

Form I-526. For filing a petition for an alien enterpreneur--$155.

* * * * *

Form I-539. For filing an application to extend or change

nonimmigrant status--$75 plus $10 per coapplicant.

* * * * *

Form I-600. For filing a petition to classify orphan as an

immediate relative for issuance of immigrant visa under section 204(a)

of the Act. (When more than one petition is submitted by the same

petitioner on behalf of orphans who are brothers or sisters, only one

fee will be required.)--$155.

Form I-600A. For filing an application for advance processing of

orphan petition. (When more than one petition is submitted by the same

petitioner on behalf of orphans who are brothers or sisters, only one

fee will be required.--$155.

Form I-601. For filing an application for waiver of ground of

excludability under section 212 (h) or (i) of the Act. (Only a single

application and fee shall be required when the alien is applying

simultaneously for a waiver under both those sub-sections.)--$95.

Form I-612. For filing an application for waiver of the foreign-

residence requirement under section 212(e) of the Act--$95.

* * * * *

Form I-751. For filing a petition to remove the conditions on

residence which is based on marriage--$80.

* * * * *

Form I-765. For filing an application for employment authorization

pursuant to 8 CFR 274a.13--$70.

* * * * *

Form I-817. For filing an application for voluntary departure under

the Family Unity Program--$80. The maximum amount payable by the

members of a family filing their applications concurrently shall be

$225.

* * * * *

Form N-300. For filing an application for declaration of

intention--$75.

* * * * *

Form N-400. For filing an application for naturalization--$95. For

filing an application for naturalization under section 405 of the

Immigration Act of 1990, if the applicant will be interviewed in the

Philippines--$120.

* * * * *

Form N-470. For filing an application for section 316(b) or 317 of

the Act benefits--$115.

Form N-565. For filing an application for a certificate of

naturalization or declaration of intention in lieu of a certificate or

declaration alleged to have been lost, mutilated, or destroyed; for a

certificate of citizenship in a changed name under section 343(b) or

(d) of the Act; or for a special certificate of naturalization to

obtain recognition as a citizen of the United States by a foreign state

under section 343(c) of the Act--$65.

Form N-600. For filing an application for certificate of

citizenship under section 309(c) or section 341 of the Act--$100.

Form N-643. For filing an application for a certificate of

citizenship on behalf of an adopted child--$80.

Form N-644. For filing an application for posthumous citizenship--

$80.

* * * * *

Dated: June 8, 1994.

Janet Reno,

Attorney General.

Exhibit 1

Note: The following exhibit will not appear in the Code of

Federal Regulations.

Examinations Fee Account

[Revised Fees]

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Form No. Form name/description Fee

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I-17............ Petition for Approval of School for Attendance by Nonimmigrant Students. $140

I-90............ Application to Replace Alien Registration Card.......................... 75

I-102........... Application for Replacement/Initial Nonimmigrant Arrival Departure 65

Document.

I-129........... Petition for a Nonimmigrant Worker...................................... See below.\1\

I-129F.......... Petition for Alien Finance(e)........................................... 75

I-130........... Petition for Alien Relative............................................. 80

I-131........... Application for Travel Document......................................... 70

I-140........... Immigrant Petition for Alien Worker..................................... 75

I-191........... Application for Advance Permission to Return to Unrelinquished Domicile. 90

I-192........... Application for Advance Permission to Enter as Nonimmigrant............. 90

I-193........... Application for Waiver of Passport and/or Visa.......................... 95

I-212........... Application for Permission to Reapply for Admission into the U.S. After 95

Deportation or Removal.

I-360........... Petition for Amerasian, Widow(er), or Special Immigrant (except for a 80

petition seeking classification as an Amerasian in which case the fee

is waived).

I-485........... Application to Register Permanent Residence or Adjust Status:

If 14 years of age or older............................................. 130

If under 14 years of age................................................ 100

I-526........... Immigrant Petition by Alien Entrepreneur................................ 155

I-539........... Application to Extend/Change Nonimmigrant Status........................ 75 plus 10 per

coapplicant.

I-600........... Petition to Classify Orphan as an Immediate Relative.................... 155

I-600A.......... Application for Advance Processing of Orphan Petition................... 155

I-601........... Application for Waiver of Grounds of Excludability...................... 95

I-612........... Application for Waiver of the Foreign Residence Requirement............. 95

I-751........... Petition to Remove the Condition on Residence........................... 80

I-765........... Application for Employment Authorization................................ 70

I-817........... Application for Voluntary Departure Under Family Unity Program.......... 80

N-300........... Application to File Declaration of Intention............................ 75

N-400........... Application for Naturalization.......................................... 95

N-470........... Application to Preserve Residence for Naturalization Purposes........... 115

N-565........... Application for Replacement Naturalization/Citizenship Document......... 65

N-600........... Application for Certificate of Citizenship.............................. 100

N-643........... Application for Certificate of Citizenship in Behalf of an Adopted Child 80

N-644........... Application for Posthumous Citizenship.................................. 80

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\1\Petition with Unnamed Beneficiaries:

--Fee of $75 per petition.

Petition with Named Beneficiaries:

--Base fee of $75 per petition plus either:

--$10 per worker if requesting consulate or port-of-entry notification for visa issuance or admission;

--$80 per worker if requesting a change of status; or

--$50 per worker if requesting an extension of stay. If filing an extension of stay or change of status for one

worker, dependents may be included for a fee of $10 per dependent.

[FR Doc. 94-14441 Filed 6-13-94; 8:45 am]

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