EB-5 Regional Center New Forms I-924 & 924A and Application Fee

[Federal Register: June 11, 2010 (Volume 75, Number 112)]
[Proposed Rules]
[Page 33445-33488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jn10-24]
[[Page 33445]]

———————————————————————–

Part IV

 

 

Department of Homeland Security

 

 

———————————————————————–

 

8 CFR Parts 103, 204, 244, et al.

 

U.S. Citizenship and Immigration Services Fee Schedule; Proposed Rule
[[Page 33446]]
———————————————————————–

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 244, and 274A

[CIS No. 2490-09; DHS Docket No. USCIS-2009-0033]
RIN 1615-AB80
U.S. Citizenship and Immigration Services Fee Schedule

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 fees charged by U.S.
Citizenship and Immigration Services (USCIS). USCIS conducted a
comprehensive fee study and refined its cost accounting process, and
determined that current fees do not recover the full costs of services
provided. Adjustment to the fee schedule is necessary to fully recover
costs and maintain adequate service. DHS proposes to increase USCIS
fees by a weighted average of 10 percent. DHS proposes among other
amendments to add three new fees to cover USCIS costs related to
processing the following requests: Regional center designation under
the Immigrant Investor Pilot Program; Civil surgeon designation; and
Immigrant visas.

DATES: Written comments must be submitted on or before July 26, 2010.

ADDRESSES: Comments, identified by DHS Docket No. USCIS-2009-0033,
should be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Room 3008, Washington, DC 20529-2210. To
ensure proper handling, please reference DHS Docket No. USCIS-2009-0033
on the correspondence. This mailing address may also be used for paper,
disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Room 3008, Washington, DC 20529-2210.
Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Timothy Rosado, Chief, Budget
Division, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2130, telephone (202) 272-1930.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Legal Authority and Guidance
III. The Immigration Examinations Fee Account
A. General Background
B. Fee Review History
C. USCIS Accomplishments Funded under the 2007 Fee Adjustment
D. Processing Time Outlook
E. FY 2008/2009 Fee Rule Enhancements
F. Administration Policy
IV. FY 2010/2011 Immigration Examination Fee Account Fee Review
A. Overall Approach
B. Basis for Fee Schedule Changes
1. Costs
a. Baseline Adjustments
b. Program Increase
2. Revenue
3. Refugee and Asylum Surcharge
4. Military Naturalizations
5. Proposed FY 2011 Appropriations for Systematic Alien
Verification for Entitlements (SAVE) Program and the Office of
Citizenship
6. Establish an Immigrant Visa Processing Fee
7. Civil Surgeon Program Fees
8. EB-5 Regional Center Designation Fee
9. Employment Authorization Document Fees for Applicants Covered
by Deferred Enforced Departure (Form I-765)
C. Summary
D. Performance Improvements
V. Fee Review Methodology
A. Background
1. ABC Methodology
a. Resources
b. Resource Drivers and Resource Assignment
c. Activities
d. Activity Drivers and Activity Assignment
e. Cost Objects
2. Low Volume Reallocation
3. Application for Naturalization
B. Key Changes Implemented for the FY 2010/2011 Fee Review
1. Appropriation for Refugee, Asylum, and Military
Naturalization Benefits
2. Fee Waivers and Exemptions
3. Immigrant Visa Processing Fee
4. EB-5 Regional Center Designation Fee
5. Civil Surgeon Program
VI. Volume
VII. Completion Rates
VIII. Proposed Fee Adjustments
A. Proposed Adjustments to IEFA Immigration Benefits
B. Removal of Fees Based on Form Numbers
C. Collection of Biometrics Fees Overseas
IX. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act
C. Small Business Regulatory Enforcement Fairness Act
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act

List of Acronyms and Abbreviations

ABC–Activity-Based Costing.
AAO–Administrative Appeals Office.
AOP–Annual Operating Plan.
ASC–Application Support Centers.
BLS–Bureau of Labor Statistics.
CFO–Chief Financial Officer.
CLAIMS–Computer Linked Application Information System.
CNMI–Commonwealth of Northern Mariana Islands.
CPI-U–Consumer Price Index–Urban Consumers.
CHEP–Cuban Haitian Entrant Program.
CBP–U.S. Customs and Border Protection.
DED–Deferred Enforced Departure.
DOD–Department of Defense.
DHS–Department of Homeland Security.
DOL–Department of Labor.
DOS–Department of State.
DNB–Dun and Bradstreet.
EAD–Employment Authorization Document.
FASAB–Federal Accounting Standards Advisory Board.
FBI–Federal Bureau of Investigation.
FSM–Federated States of Micronesia.
FY–Fiscal Year.
FDNS–Fraud Detection and National Security.
FTE–Full-Time Equivalents.
GAO–Government Accountability Office.
IV–Immigrant Visa.
IEFA–Immigration Examinations Fee Account.
IT–Information Technology.
IBIS–Interagency Border Inspection System.
IO–International Operations.
NARA–National Archives and Records Administration.
OIS–Office of Immigration Statistics.
OIT–Office of Information Technology.
OMB–Office of Management and Budget.
PAS–Performance Analysis System.
PMB–Production Management Branch.
PPA–Program Project Activity Structure.
RAIO–Refugee, Asylum, and International Operations.
RFA–Regulatory Flexibility Act.
RMI–Republic of the Marshall Islands.
SLAs–Service Level Agreements.
SAM–Staffing Allocation Model.
SQA–System Qualified Adjudication.
SAVE–Systematic Alien Verification for Entitlements.
TPS–Temporary Protected Status.
TPO–Transformation Program Office.
TTPI–Trust Territory of the Pacific Islands.
USCIS–U.S. Citizenship and Immigration Services.
UMRA–Unfunded Mandates Reform Act.
USPHS–United States Public Health Service.
VPC–Volume Projection Committee.

I. Public Participation

DHS invites interested persons to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule. Comments that will provide the most assistance to DHS
will reference a specific portion of the proposed rule, explain the
reason for

[[Page 33447]]

any recommended change, and include data, information, or authority
that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2009-0033. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Anonymous comments should be submitted
to http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
The docket includes additional documents that support the analysis
contained in this rule to determine the specific fees that are
proposed. These documents include:
FY 2010/2011 Fee Review Supporting Documentation; and
Small Entity Analysis for Adjustment of the U.S.
Citizenship and Immigration Services Fee Schedule.
These documents may be reviewed on the electronic docket. The
software used in computing the immigration benefit request and
biometric fees is a commercial product licensed to USCIS that may be
accessed on-site by appointment by calling (202) 272-1930.

II. Legal Authority and Guidance

The Immigration and Nationality Act of 1952 (INA), as amended,
provides for the collection of fees at a level that will ensure
recovery of the full costs of providing adjudication and naturalization
services, including services provided without charge to asylum
applicants and certain other immigrant applicants. INA section 286(m),
8 U.S.C. 1356(m).\1\ The INA provides that the fees may recover
administrative costs as well. The fee revenue collected under section
286(m) of the INA remains available to DHS to provide immigration and
naturalization benefits and ensures the collection, safeguarding, and
accounting of fees by USCIS. INA section 286(n), 8 U.S.C. 1356(n).
—————————————————————————

\1\ INA section 286(m), 8 U.S.C. 1356(m), provides, in pertinent
part:
Notwithstanding any other provisions of law, all adjudication
fees as are designated by the [Secretary of Homeland Security] in
regulations shall be deposited as offsetting receipts into a
separate account entitled “Immigration Examinations Fee Account”
in the Treasury of the United States, whether collected directly by
the [Secretary] or through clerks of courts: Provided, however, * *
*: Provided further, That fees for providing adjudication and
naturalization services may be set at a level that will ensure
recovery of the full costs of providing all such services, including
the costs of similar services provided without charge to asylum
applicants or other immigrants. Such fees may also be set at a level
that will recover any additional costs associated with the
administration of the fees collected.
Paragraph (n) provides that deposited funds remain available
until expended “for expenses in providing immigration adjudication
and naturalization services and the collection, safeguarding and
accounting for fees deposited in and funds reimbursed from the
`Immigration Examinations Fee Account’.”
—————————————————————————

INA section 286(m), 8 U.S.C. 1356(m), contains both silence and
ambiguity under Chevron USA, Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984). Congress has not spoken directly, for example, to
a number of issues present in this section, including the scope of
application of the section or subsidizing operations from other
fees.\2\ Congress has provided that USCIS recover costs “including the
costs of similar services” provided to “asylum applicants and other
immigrants.” Congress has not detailed the determination of what costs
are to be included. Moreover, “other immigrants” has a broad meaning
under the INA because the term “immigrant” is defined by exclusion to
mean “every alien except an alien who is within one of the following
classes of nonimmigrant aliens.” INA section 101(a)(15), 8 U.S.C.
1101(a)(15). The extensive listing of exclusions from “immigrant” by
the non-immigrant visa classes is replete with ambiguity evidenced by
the detailed and complex regulations and judicial interpretations of
those provisions.
—————————————————————————

\2\ Congress’s intent in using individual terms, such as “full
cost,” is clear, although the totality of the section is ambiguous.
—————————————————————————

Additionally, Congress provides appropriations for specific USCIS
programs. Appropriated funding for FY 2010 included asylum and refugee
operations (4th Quarter contingency funding), and military
naturalization surcharge costs ($55 million); E-Verify ($137 million);
immigrant integration ($11 million); REAL ID Act implementation ($10
million); and data center consolidation ($11 million). Department of
Homeland Security Appropriations Act, 2010, Public Law 111-83, title
IV, 123 Stat. 2142, 2164–5 (Oct. 28, 2009) (DHS Appropriation Act
2010). Providing these limited funds against the backdrop of the broad
immigration examinations fee statute–together forming the totality of
funding available for USCIS operations–requires that all other costs
relating to USCIS and adjudication operations are funded from fees.
When no appropriations are received, or fees are statutorily set at
a level that does not recover costs, or DHS determines that a type of
application should be exempt from payment of fees, USCIS must use funds
derived from other fee applications to fund overall requirements and
general operations. For example, when a fee such as Temporary Protected
Status (TPS), set by statute at $50, does not cover the cost of
adjudicating the TPS application, the excess cost must be recovered by
fees charged to other applications. INA section 244(c)(1)(B), 8 U.S.C.
1254a(c)(1)(B). Furthermore, when a policy decision is made by
regulations, for example, to exempt aliens who are victims of a severe
form of trafficking in persons and who assist law enforcement in the
investigation or prosecution of the acts of trafficking (T Visa), and
aliens who are victims of certain crimes and are being helpful to the
investigation or prosecution of those crimes (U Visa), from visa fees,
the cost of processing those fee-exempt visas must be recovered by fees
charged against other applications. INA sections 101(a)(15)(T), (U),
214(o), (p), 8 U.S.C. 1101(a)(15)(T), (U), and 1184(o), (p); 8 CFR
214.11, 214.14, 103.7(c)(5)(iii); Adjustment of Status to Lawful
Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 FR
75540 (Dec. 12, 2008).
The proposed rule follows initial steps taken by the Administration
within enacted FY 2010 appropriations for USCIS fee reform that moved
some asylum, refugee, and military naturalization costs out of the fee
structure. The purpose of this fee reform is to improve the linkage
between fees paid by USCIS applicants and petitioners and the cost of
programs and activities to provide immigration benefits. Because of fee
exemptions for beneficiaries of asylum, refugee, and military
naturalization, fee surcharges were added to other applications and
petitions. 72 FR 29859. Similarly, costs of SAVE and the Office of
Citizenship are currently only partially supported by fee revenue.
Additional fee reform in these areas moves these costs out of the USCIS
fee structure and improves the transparency of USCIS fees.
Nevertheless, while USCIS has calculated its fees as much as possible
to bear a relationship with the effort expended to carry out the
adjudication, fees are the prevalent source of USCIS funding.\3\
—————————————————————————

\3\ INA section 286(m), 8 U.S.C. 1356(m), provides broader fee-
setting authority and is an exception from the stricter costs-for-
services-rendered requirements of the Independent Offices
Appropriations Act, 1952, 31 U.S.C. 9701(c) (IOAA); see Seafarers
Intern. Union of North America v. U.S. Coast Guard, 81 F.3d 179 (DC
Cir. 1996) (IOAA provides that expenses incurred by agency to serve
some independent public interest cannot be included in cost basis
for a user fee, although agency is not prohibited from charging
applicant full cost of services rendered to applicant which also
results in some incidental public benefits). Congress initially
enacted immigration fee authority under the IOAA. See Ayuda, Inc. v.
Attorney General, 848 F.2d 1298 (DC Cir. 1988). Congress thereafter
amended the relevant provision of law to require deposit of the
receipts into the separate Immigration Examinations Fee Account of
the Treasury as offsetting receipts to fund operations, and
broadened the fee setting authority. Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1991, Public Law 101-515, sec. 210(d), 104 Stat.
2101, 2111 (Nov. 5, 1990). Additional values are considered in
setting Immigration Examinations Fee Account fees that would not be
considered in setting fees under the IOAA. See 72 FR at 29866–7.

—————————————————————————

[[Page 33448]]

DHS works with the Office of Management and Budget (OMB) and
follows the guidance provided by OMB Circular A-25, establishing
Federal policy guidance regarding fees assessed by Federal agencies for
government services. OMB Circular A-25, User Charges (Revised), par. 6,
—————————————————————————
58 FR 38142 (July 15, 1993). Circular A-25 provides that:

[i]t is the objective of the United States Government to:
a. Ensure that each service, sale, or use of Government goods or
resources provided by an agency to specific recipients be self-
sustaining;
b. Promote efficient allocation of the Nation’s resources by
establishing charges for special benefits provided to the recipient
that are at least as great as costs to the Government of providing
the special benefits; and
c. Allow the private sector to compete with the Government
without disadvantage in supplying comparable services, resources, or
goods where appropriate.

Id, par. 5. In summary, one objective of Circular A-25 ensures that
Federal agencies recover the full costs of providing specific services
to users and associated costs. Full costs include, but are not limited
to, an appropriate share of:

Direct and indirect personnel costs, including salaries
and fringe benefits such as medical insurance and retirement;
Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel, and
rents or imputed rents on land, buildings, and equipment;
Management and supervisory costs; and
The costs of enforcement, collection, research,
establishment of standards, and regulation.

Id. par. 6d1. INA section 286(m), 8 U.S.C. 1356(m), provides DHS
broader discretion to include other costs.

OMB Circular A-25 advises that fees should be set to recover these
costs in their entirety. Full costs are determined based upon the best
available records of the agency. Id. See also OMB Circular A-11,
section 20.7(d), (g) (August 7, 2009, revised November 16, 2009) (FY
2011 budget formulation and execution policy regarding user fees),
found at http://www.whitehouse.gov/omb/assets/a11_current_year/a_
11_2009.pdf. DHS and OMB use OMB Circular A-25 as the overall policy
guidance for determining the activity based costing that forms a base
for the ultimate decisions on appropriate fee amounts, and, in
conjunction with OMB Circular A-11, issued each budget cycle,
determining appropriate requests for appropriations that may offset a
portion of the totality of fee recovery.
OMB Circulars A-11 and A-25 provide internal Executive Branch
direction for the development of appropriation requests and fee
schedules (under the IOAA), but are adapted here to the activity based
costing methodology that forms the nucleus for the proposed fee
schedule. These internal directions remain at the discretion of the
President and the Director of OMB. 5 CFR 1310.1.
DHS also conforms to the requirements of the Chief Financial
Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03, requiring that each
agency’s Chief Financial Officer (CFO) “review, on a biennial basis,
the fees, royalties, rents, and other charges imposed by the agency for
services and things of value it provides, and make recommendations on
revising those charges to reflect costs incurred by it in providing
those services and things of value.” Id. at 902(a)(8). This proposed
rule reflects recommendations made by the DHS CFO and USCIS CFO.
When developing proposed fees, USCIS reviews, to the extent
applicable, cost accounting concepts and standards recommended by the
Federal Accounting Standards Advisory Board (FASAB). The FASAB defines
“full cost” to include “direct and indirect costs that contribute to
the output, regardless of funding sources.” FASAB, Statement of
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government 36 (July 31, 1995).
To determine the full cost of a service or services, FASAB identifies
various classifications of costs to be included and recommends various
methods of cost assignment. Id. at 33-42. DHS proposes complete funding
of existing services and specific allocation methods.
Accordingly, DHS applies the discretion provided in INA section
286(m), 8 U.S.C. 1356(m), to (1) develop activity based costing to
establish basic fee setting parameters that are consistent to the
extent practical with OMB Circular A-25, (2) applies administrative
judgment to spread those overhead and other costs that are not driven
by the cost of services, and (3) applies policy judgments to effectuate
the overall Administration policy.\4\ The “full” cost of operating
USCIS, less any appropriated funding, has been the historical total
basis for establishing the cost basis for the fees, and Congress has
consistently recognized this concept on annual appropriations. This
proposed rule reflects the authority granted to DHS by INA section
286(m) and other statutes.
—————————————————————————

\4\ DHS may reasonably adjust fees based on value judgments and
public policy reasons where a rational basis for the methodology is
propounded in the rulemaking. See FCC v. Fox Television Stations,
Inc., 556 U.S. —, –, 129 S.Ct. 1800, 1811 (2009); Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
—————————————————————————

III. The Immigration Examinations Fee Account

A. General Background

In 1988, Congress established the Immigration Examination Fee
Account (IEFA). Public Law 100-459, section 209, 102 Stat. 2186 (Oct.
1, 1988), enacting, after correction, INA sections 286(m) and (n), 8
U.S.C. 1356(m) and (n). Fees deposited into the IEFA fund the provision
of immigration and naturalization benefits and other benefits as
directed by Congress. In subsequent legislation, Congress directed that
the IEFA also fund the cost of asylum processing and other services
provided to immigrants at no charge. Public Law 101-515, sec. 210(d)(1)
and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). Consequently, the
immigration benefit fees were increased to recover these additional
costs. See 59 FR 30520 (June 14, 1994).

B. Fee Review History

USCIS conducted a comprehensive fee review in 2007 and promulgated
a revised fee schedule that amended many of the fees charged by USCIS
to more accurately reflect the costs of the services provided by USCIS.
72 FR 29851 (May 30, 2007) (final rule) (FY 2008/2009 Fee Rule).\5\ The
2007 final rule was effective on July 30, 2007, covering FY 2008 and FY
2009. The documentation accompanying this rule in the rulemaking docket
at http://www.regulations.gov contains a historical fee schedule that
shows the immigration benefit fee history since FY

[[Page 33449]]

1985. The Immigration and Naturalization Service (INS) or USCIS also
adjusted fees incrementally in 1994, 2002, 2004, and 2005. See,
respectively, 59 FR 30520 (June 14, 1994); 66 FR 65811 (Dec. 21, 2001);
69 FR 20528 (April 15, 2004); and 70 FR 56182 (Sep. 26, 2005). Prior to
USCIS’s 2007 review and update, the last comprehensive fee review was
conducted by INS in 1998. 63 FR 43604 (Aug, 14, 1998).
—————————————————————————

\5\ FY 2008/2009 Fee Rule as used in this rule encompasses the
proposed rule, final rule, fee study, and all supporting
documentation associated with the regulations effective July 30,
2007.
—————————————————————————

USCIS is committed to reviewing the IEFA every two years consistent
with the biennial review standard of the CFO Act and guidance from OMB
Circular A-25. The FY 2008/2009 Fee Rule followed nearly a decade
without a comprehensive review of IEFA fees, and fees increased by a
weighted average of 86 percent to recover both base costs and costs for
improving operations and service-wide performance needs. By reviewing
the IEFA every two years, USCIS is able to implement more moderate fee
changes and avoid periods of inadequate revenue that typically precede
large fee increases. Additionally, conducting a comprehensive review
every two years will allow USCIS to incorporate the productivity gains
achieved from investments in technology and modernization of agency
operations. These investments should result in improved performance and
lower costs.
Table 1 sets out the current IEFA and biometric fee schedule.
BILLING CODE 9111-97-P

[[Page 33450]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.003
[[Page 33451]]
[GRAPHIC] [TIFF OMITTED] TP11JN10.004

BILLING CODE 9111-97-C

C. USCIS Accomplishments Funded Under the 2007 Fee Adjustment

The 2007 adjustment to USCIS’s fee schedule enabled USCIS to
accomplish several critical service actions and improvements, including
improved service delivery. The following are some of the key
accomplishments:
USCIS processed nearly 1.2 million naturalization
applications in FY 2008, 56 percent more than FY 2007. As of March
2010, approximately 262,000 naturalizations cases were pending–one of
the lowest levels in recent history.
A surge response plan implemented in FY 2008 enabled USCIS
to meet nearly all FY 2008/2009 Fee Rule processing time goals by the
end of FY 2009.
In FY09 USCIS and the FBI effectively eliminated the
National Name Check Program (NNCP) backlog. NNCP now is able to
complete 98 percent of name check requests submitted by USCIS within 30
days, and the remaining 2 percent within 90 days.
Refugee admissions totaled 74,652 for FY 2009, a 25
percent increase over the FY 2008 admissions level. This figure
includes the processing of 18,833 Iraqi refugees, up from 13,000 in FY
2008.
USCIS is using System Qualified Adjudication (SQA) to
electronically adjudicate some cases and determine those that require
closer review. This improvement helps staff focus attention on more
complex cases including those where discrepancies have been found.
USCIS uses SQA on about 5 percent of immigration benefit requests.
USCIS implemented a secure mail delivery process whereby
USCIS delivers re-entry permits and refugee travel documents to
applicants via the U.S. Postal Service Priority Mail. This process
allows documents to be delivered in two to three days with delivery
confirmation.
USCIS is transitioning to a U.S. Department of the
Treasury Lockbox provider and away from dispersed collection points to
improve intake operations and control the timing of fee deposits. Two
major forms–Form N-400, Application for Naturalization, and Form I-90,
Application to Replace Permanent Resident Card–have already been
centralized for filing at the Lockbox. Likewise, forms related to
international adoptions that are filed domestically have been
centralized for filing at the Lockbox: (Form I-800, Petition to
Classify Convention Adoptee as an Immediate Relative; Form I-800A,
Application for Determination of Suitability to Adopt a Child from a
Convention Country; Form I-600, Petition to Classify Orphan as an
Immediate Relative; and Form I-600A, Application for Advance Processing
of Orphan Petition). USCIS centralized eight more application types in
December 2009.
In tandem with the additional capacity and efficiency improvements
in the FY 2008/2009 Fee Rule, USCIS committed to reducing immigration
benefit request processing times. Two performance goals were specified:
Reduce processing times by the end of FY 2008 for four key
benefits:

[cir] Application to Register Permanent Residence or Adjust Status
(Form I-485), from six months to four months;
[cir] Application for Naturalization (Form N-400) from seven months
to five months;
[cir] Application to Replace Permanent Residence Card (Form I-90)
from six months to four months; and
[cir] Immigrant Petition for Alien Worker (Form I-140), from six
months to four months.

Achieve a 20 percent reduction in average application
processing times by the end of FY 2009.
During the period between the 2007 notice of proposed rulemaking
and implementation of a final rule on July 30, 2007, USCIS received a
substantial surge in immigration benefit requests. This surge more than
doubled the number of naturalization applications received for the
entire year–at the lower fee level which the fee study had found
insufficient to cover the costs of processing those applications.
Naturalization applications are very labor-intensive and the additional
surge had a significant impact on USCIS resources.
USCIS responded to the 2007 surge by rapidly adding capacity in
2008 in excess of the increases planned in connection with the FY 2008/
2009 Fee Rule. Despite completing 1.6 million more requests than
received during FY 2008, USCIS could not meet its processing time
goals. As a result, all of the FY 2008 goals for key immigration
benefits were postponed until the end of FY 2009. No change was made to
the existing 20 percent processing time reduction goal slated to be
reached by the end of FY 2009. USCIS achieved nearly all of the goals
set for the FY 2008/2009 Fee Rule by the end of FY 2009.

D. Processing Time Outlook

USCIS met or exceeded nearly all FY 2008/2009 Fee Rule processing
time performance goals by the end of FY 2009. Processing time progress
updates are posted monthly to the USCIS Web site. For the FY 2010/2011
period, USCIS intends to ensure that the FY 2008/2009 Fee Rule average
processing time goals are met and maintained. Wherever appropriate and
feasible, USCIS aims to exceed target performance goals through
existing staff levels, efficiency improvements, and systems
modernization. USCIS does not plan to increase adjudication staffing
levels and, in fact, has and will continue to reduce staff during the
FY 2010/2011 biennial period based on current revenue trends and the
institutional focus on countering fee increases to the extent possible.

E. FY 2008/2009 Fee Rule Enhancements

Table 2 provides a status summary of all fee rule initiatives by
program. USCIS set forth 43 enhancements and initiatives in the FY
2008/2009 fee rule. See, e.g., 72 FR 4888 at 4898-4902 (Feb

[[Page 33452]]

1, 2007); 72 FR 29851 at 29855 (May 30, 2007). USCIS has successfully
implemented these enhancements and initiatives, and, of 43 initiatives,
35 are complete.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP11JN10.005
[[Page 33453]]
[GRAPHIC] [TIFF OMITTED] TP11JN10.006

BILLING CODE 9111-97-C

F. Administration Policy

President Obama launched a multi-year effort in his fiscal year
(FY) 2010 Budget to reform immigration fees. The purpose of reforming
immigration fees is to improve the transparency and precision of how
fees are determined and to develop, as a matter of discretion, fees
that reflect more closely actual costs of adjudication and assignable
associated costs. The President’s FY 2010 Budget requested
appropriations from Congress to allow USCIS to remove the surcharge for
refugee and asylum program costs and military naturalizations.
Additional steps to reform immigration fees have continued in the
President’s FY 2011 Budget request and in this proposed fee rule.
DHS has calculated the proposed changes to the fee schedule based
on the fee reform steps taken in the FY 2010 Budget and FY 2011 Budget
request. These changes may require adjustment if USCIS’s appropriation
requests are not enacted or are reduced for FY 2011. Accordingly, DHS
is proposing a range of fees to account for fee increases that would be
necessary if the requested appropriations for FY 2011 are not enacted.

IV. FY 2010/2011 Immigration Examination Fee Account Fee Review

A. Overall Approach

USCIS manages three fee accounts: The IEFA (which includes premium
processing revenues set aside for infrastructure improvements by the
Office of Transformation Coordination for near- and long-term
investments to strategically improve USCIS operations),\6\ the Fraud
Prevention and Detection Account (immigration benefit fraud),\7\ and
the H-1B Nonimmigrant Petitioner Account.\8\ The Fraud Prevention and
Detection account and the H-1B Nonimmigrant Petitioner Account are both
funded by statutorily-set fees. The proceeds of these fees are used for
fraud detection and prevention activities and to provide training for
American workers in order to reduce employer reliance on nonimmigrant
workers, respectively. DHS has no authority to adjust fees for these
accounts.
—————————————————————————

\6\ INA sections 286(m), (n), 8 U.S.C. 1356(m), (n).
\7\ INA sections 214(c), 286(v), 8 U.S.C. 1184(c) 1356(v).
\8\ INA sections 214(c), 286(s), 8 U.S.C. 1184(c), 1356(s).
—————————————————————————

The IEFA account comprised approximately 95 percent of total
funding for USCIS in FY 2009, excluding premium processing, and is the
focus of this proposed rule. The FY 2010/2011 Fee Review encompasses
three core elements:
Cost Projections–The cost baseline is the estimated level
of funding necessary to maintain an adequate level of operations and
does not include program increases for new development, modernization,
or acquisition. Proposed program increases are considered outside of
the baseline. Cost projections for FY 2010/2011 are derived from the
USCIS operating plan for FY 2010.
Revenue Status and Projections–Actual revenue collections
for FY 2009 are used to derive projections for the two-year period of
the fee review based on current and anticipated trends.
Cost and Revenue Differential–The difference between
anticipated costs and revenue, assuming no change in fees, is
identified.
The primary objective of this fee review is to ensure immigration
benefit request fee revenue provides sufficient funding to meet ongoing
operating costs, including national security, customer service, and
business adjudicative processing needs which are essential to provide
immigration benefits and services.

B. Basis for Fee Schedule Changes

When conducting the comprehensive fee review, USCIS reviewed its
recent cost history, operating environment, and current service levels
to determine the appropriate method to assign costs to particular form
types. Overall, USCIS kept costs as low as possible and minimized non-
critical program changes that would increase costs.
1. Costs
a. Baseline Adjustments
The cost baseline is comprised of the resources (such as personnel
and

[[Page 33454]]

general expenses) necessary for each USCIS office to sustain
operations. The baseline excludes new or expanded programs or
significant policy changes. A detailed USCIS annual operating plan
(AOP) is the starting point for baseline estimates.
In developing estimates of program needs for FY 2010/2011, USCIS
used the FY 2010 AOP as the starting point. In response to reduced
workload and declining revenue during both FY 2008 and FY 2009, USCIS
reduced baseline costs for FY 2010.
Expenditures were reduced by $111 million in such areas as staffing
and correspondingly reduced introductory training programs, overtime,
and facilities improvement.
These reductions were offset by necessary pay adjustments and
increases to programs to maintain current services, particularly
adjustments to programs that received one-time reductions during FY
2009. Examples of necessary adjustments include:
Pay inflation ($15.1 million in FY 2010 and $16.5 million
in FY 2011). The assumed government-wide pay inflation rate for FY 2010
and FY 2011 is 2 percent and 2.1 percent respectively;
Within-grade pay step increases ($15.4 million in FY 2010
and $16 million in FY 2011);
Rent increases ($15.1 million in FY 2010 and $27.6 million
in FY 2011). Rent increases as existing leases expire and are
renegotiated. Rent is projected to increase by 9 percent in FY 2010 and
15 percent in FY 2011. The increase in rent is attributable to several
factors including the size of the facilities, the growth of USCIS, the
timing of facility projects, and the cost of construction. Many
facility projects that are scheduled for completion in FY 2010
commenced in FY 2008. The additional space was acquired based on
increased staffing levels (a direct result of the FY 2008/2009 Fee Rule
enhancements). Outside of the acquisition of new facilities, annual
rent costs increase due to higher operating costs (such as utilities)
that USCIS must pay to the General Services Administration.
Table 3 summarizes adjustments to the FY 2009 cost baseline, as
well as the cost increases and decreases to reach the FY 2010 and FY
2011 cost baselines. Overall, the IEFA cost baseline decreases by
approximately 1.5 percent in FY 2010 from FY 2009 and increases by 2.7
percent for FY 2011.
[GRAPHIC] [TIFF OMITTED] TP11JN10.007

b. Program Increase
USCIS has included only one program increase, encompassing $30
million in infrastructure funding to support the transformation of
USCIS operations under its transformation program. To improve
operational efficiency, enhance customer service, and increase national
security, USCIS is centralizing and consolidating the electronic
environments used for case processing and management and to standardize
and improve business processes. A large portion of this effort is
dedicated to developing and integrating information management systems.
USCIS will migrate from a paper file-based, non-integrated systems
environment to an electronic customer-focused, centralized case
management environment for benefit processing. This transformation will
allow USCIS to streamline benefit processing, eliminate the capture and
processing of redundant data, and reduce the number of and automate its
forms. This process will be a phased multi-year initiative to
restructure USCIS business processes and related information technology
systems.
Direct transformation program costs are currently funded through
premium processing fees. Some supporting infrastructure upgrades
outside of the Transformation Program are necessary to enable
implementation such as upgrades to existing network, communication, and
supporting systems. USCIS is assuming a $30 million program increase
each year, for a total of $60 million in additional costs over the fee
review period.
2. Revenue
During the fourth quarter of FY 2007, USCIS received over 2.5
million filings, compared to 1.3 million received in the same period of
FY 2006, as applicants attempted to file before the July 30, 2007 fee
adjustment and in response to adjustments made by the Department of
State (DOS) to its July 2007 visa bulletin. This filing surge created a
delay in receipting, which led to an increase in revenue at the
beginning of FY 2008. The additional applications received were charged
lower pre-FY 2008/2009 Fee Rule fees. The increase in early filings
meant that FY 2008 application levels were substantially below
expectations. The decrease in FY 2008 filings began the last two
quarters of FY 2008 and continued throughout FY 2009. IEFA revenue for
FY 2008 was $75 million below the estimated FY 2008 projection of
$2.329 billion, despite an estimated $300 million of FY 2007
applications receipted in FY 2008. IEFA revenue for FY 2009 was $345
million below the $2.329 billion projection.

[[Page 33455]]

Actual FY 2009 IEFA revenue includes the revenue associated with
the temporary protected status (TPS) registration that was not included
in the FY 2008/2009 Fee Rule projections. In order to have a more
reliable budget estimate upon which to base its fees, USCIS chose not
to rely on temporary funding sources such as TPS that are subject to
being discontinued annually. Therefore, USCIS cannot build TPS cost and
revenue into long-term plans. Thus the fees proposed in this rule are
based on the TPS Program for re-registrants of certain nationalities
not continuing and their associated fees not being collected. When
estimated TPS revenue of $120 million is factored out, the IEFA revenue
was $465 million below the FY 2008/2009 Fee Rule projections.
USCIS fee revenue collections are affected by many things including
the economy, debate in Congress over immigration legislation, and
business cycles. A significant downward trend in employment benefit
receipts in FY 2009 suggests that the primary cause of reduced receipts
was the downturn in the economy. Employment-based workload, adjustment
of status and naturalization requests–both primary consumers of work
hours and sources of revenue–were also significantly lower than FY
2007 receipts. In addition, there is anecdotal evidence that there was
a “surge” in the volume of certain applications, the Application for
Naturalization in particular, just before the previous fee rule went
into effect that may have had an impact on application volume in FY
2009. The fee increase may have been the reasons for this surge,
although other factors, such as the immigration legislation that was
considered but not enacted by Congress in 2007, and the 2008
Presidential election, are believed to have had an impact on filing
volumes during FY 2008.
Given the downward revenue trend for FY 2008 and FY 2009, USCIS has
formulated conservative volume and revenue projections. Overall, this
fee review assumes that baseline revenue will decline from an FY 2008/
2009 Fee Rule projection of $2.329 billion to $2.056 billion, a
decrease of approximately 12 percent. This determination is based on a
workload volume reduction from the FY 2008/2009 projections of
approximately 1.6 million benefit requests (including biometrics) and a
fee-paying volume reduction of 827,689. See 72 FR 29851. Table 4
summarizes the projected cost differential.
[GRAPHIC] [TIFF OMITTED] TP11JN10.008

Historically and for the purpose of the fee review, USCIS has
reported costs and revenue using an average over the biennial time
period. In Table 5, FY 2010 and 2011 costs and revenue are averaged to
determine the projected fee rule revenue and cost amounts. Based on
current immigration benefit and biometric service fees and projected
volumes, fees are expected to generate $2.056 billion in annual revenue
in FY 2010 and FY 2011. For the same period, the average cost of
processing those benefit requests is $2.417 billion. This calculation
results in an average annual deficit of $361 million.
3. Refugee and Asylum Surcharge
The President’s FY 2010 Budget requested $200 million to eliminate
estimated asylum and refugee surcharges. See Office of Management and
Budget, Budget of the United States Government, Fiscal Year 2010, at
510-1 (2009), available at http://www.gpoaccess.gov/usbudget/fy10/pdf/
appendix/dhs.pdf. Congress enacted $50 million for FY 2010, contingent
upon conforming rulemaking to adjust the surcharges accordingly (i.e.,
the $50 million represents an annualized figure of $200 million,
appropriated in the expectation that it will fund the final quarter of
FY 2010 rather than the entire year). DHS Appropriation Act 2010, 123
Stat. at 2164-5. Costs of refugee and asylum processing are currently
borne by all fee-paying applicants as a surcharge applied to each fee-
paying immigration benefit request. See 72 FR at 29859 (all immigration
benefit and petition fees include a total of $72 in “surcharges” to
recover asylum and refugee costs, and fee waiver and exemption costs).
While consistent with the Immigration and Nationality Act, this
surcharge raises fees for those applying for other benefits. Estimated
costs in these areas include:
The budgets of both the Refugee and Asylum Divisions of
the Refugee, Asylum, and International Operations (RAIO) Directorate,
along with the cost of RAIO Headquarters;
Five percent of the International Operations (IO) office,
representing the portion of IO that completes refugee work;
A proportionate share of overhead costs of USCIS; and
The cost of the Cuban-Haitian Entrant Program.
The $50 million appropriation enacted by Congress only replaces a
portion of the surcharge for FY 2010 representing one-quarter of the
fiscal year. DHS Appropriation Act 2010, 123 Stat. at 2164-5. President
Obama requested an appropriation from Congress of $207 million to
replace the full, annualized costs of these activities in FY 2011.
Office of Management and Budget, Budget of the United States
Government, Fiscal Year 2011, at 521-2 (2010) (2011 Budget Request),
available at http://www.whitehouse.gov/omb/budget/fy2011/assets/
dhs.pdf. If Congress enacts the requested FY 2011 appropriations,
surcharges for this category of costs will be eliminated when this
proposed rule is promulgated as a final rule and becomes effective. If
the requested appropriation is not enacted, or a different amount is
appropriated, the final rule will adjust the fee schedule accordingly.
See Table 16 (comparative fee schedule with and without requested
appropriations).
4. Military Naturalizations
Service members in any of the branches of the U.S. Military who
meet certain requirements may apply for naturalization and are exempt
from paying the fee for the Application for Naturalization (Form N-
400). INA sec. 328(a)(4), 8 U.S.C. 1439(a)(4); INA sec. 329(b)(4), 8
U.S.C. 1440(b)(4). Congress provided $5 million in FY 2010 to cover the
estimated cost to USCIS of processing military naturalization
applications. DHS Appropriation Act 2010, Public Law 111-83, 123 Stat.
at 2164-5. As recognized by Congress in providing this appropriation,
these costs

[[Page 33456]]

should not be borne by other fee-payers, particularly since this volume
increases as the Department of Defense expands its recruitment efforts
to certain aliens and other than lawful permanent residents. The
estimated cost is based on a projected workload of 9,500 military
naturalizations multiplied by the current fee of $595. The FY 2011
Budget Request of $5 million in appropriations for the Department of
Defense is reflected in the recalculation of the proposed fees. See
2011 Budget Request, at 521-2. If Congress appropriates a different
amount, the fees will be adjusted accordingly in the final rule. Table
5 depicts the cost and revenue differential after appropriations for
refugee, asylum, and military naturalizations are assumed.
[GRAPHIC] [TIFF OMITTED] TP11JN10.009

5. Proposed FY 2011 Appropriations for Systematic Alien Verification
for Entitlements (SAVE) Program and the Office of Citizenship
The $385,800,000 for USCIS funding in the FY 2011 Budget Request
seeks appropriations to cover the estimated cost of the SAVE program
($34 million) and the Office of Citizenship ($18 million) for FY 2011.
See 2011 Budget Request, at 521-2. If Congress appropriates a different
amount, the fees will be adjusted accordingly in the final rule. The
fees proposed in this rule are based on the costs of the SAVE program
and the Office of Citizenship not being financed by fee revenue and,
instead, paid with appropriated funds. The baseline costs (without
program increases) are approximately $26.1 million in FY 2011. If
appropriations are not approved for these activities, USCIS will be
required to adjust fees to reflect costs for the programs.
The proposal follows initial steps taken within enacted FY 2010
appropriations for USCIS fee reform that moved some asylum, refugee,
and military naturalization costs out of the fee structure. The purpose
of this fee reform is to improve the linkage between fees paid by USCIS
applicants and petitioners and the cost of programs and activities to
provide immigration benefits. Because of fee exemptions for
beneficiaries of asylum, refugee, and military naturalization, fee
surcharges were added to other applications and petitions. 72 FR 29859.
Similarly, costs of SAVE and the Office of Citizenship are currently
only partially supported by fee revenue. Additional fee reform in these
areas moves these costs out of the USCIS fee structure and improves the
precision and transparency of USCIS fees.
The IEFA cost baseline is increasing while anticipated volumes and
revenue are expected to decrease compared to the last fee rule. Table 6
depicts the cost and revenue differential after appropriations for
refugee, asylum, military naturalizations, SAVE, and the Office of
Citizenship are assumed.
[GRAPHIC] [TIFF OMITTED] TP11JN10.010

6. Establish an Immigrant Visa Processing Fee
DHS proposes to establish a new fee for immigrant visas to recover
the costs to USCIS for related activities. Immigrant visas are issued
by the Department of State (DOS) in overseas consulates to foreign
nationals seeking to reside permanently in the United States. INA
section 221-222, 8 U.S.C. 1201-1202. Although DOS issues the visas,
USCIS must complete several visa application-related activities prior
to issuance of a permanent resident card. USCIS must create a file,
review the application, correspond with the applicant, and produce and
issue a secure card upon approval. DOS charges fees for immigrant
visas, but USCIS does not. The DOS fee is currently established, using
DOS’s fee-setting methodology, at $355. 22 CFR 22.1. The DOS fee was
established to recover DOS costs only, and the USCIS FY 2010/2011 Fee
Review was performed without consideration of fees paid by applicants
to DOS. Other USCIS applicants have historically borne the cost of
processing this immigrant visa workload.
The USCIS fee only reflects the costs incurred by USCIS. Although
USCIS projects an annual volume of 430,000 requests, in anticipation of
the timing of implementation of a final rule promulgating the fee,
USCIS only accounts for revenue for the second half of the first fiscal
year, or 215,000 immigrant visas. USCIS projects that the collection of
the immigrant visa fee will be implemented beginning in FY 2011. The
proposed fee based on the workload analysis is $165. The additional
revenue from implementing this fee will reduce

[[Page 33457]]

fees paid by, and fee increases charged to, other applications.
7. Civil Surgeon Program Fees
DHS proposes to establish new fees for processing civil surgeon
designations. Medical examinations are needed for most adjustment of
status cases (Form I-485) and requests for V nonimmigrant status (Form
I-539). The medical examination must be conducted by a civil surgeon
who has been designated by USCIS. USCIS traditionally has not charged
civil surgeons seeking this designation a fee to recover the costs
associated with this application; these costs have been recovered as
part of the administrative overhead charged to all fee-paying
applicants and petitioners. The process for receiving and reviewing the
information required for a civil surgeon designation, however, is labor
intensive. For USCIS to continue to provide civil surgeon designations
in a timely manner and to further refine the cost analysis and fee
setting, USCIS must establish a fee of $615 to cover the cost of
processing requests for such designations. Collecting a fee for these
services will ensure that other fee-paying applicants do not bear these
costs.
8. EB-5 Regional Center Designation Fee
DHS proposes to add a fee for adjudication of regional center
designations under the Immigrant Investor Pilot Program. See Public Law
102-395, tit. VI, sec. 610, 106 Stat. 1874 (1992) (8 U.S.C. 1153 note).
This program, implemented by Congress in 1990 to stimulate the U.S.
economy, allows certain foreign investors to obtain lawful permanent
resident status in the United States as EB-5 immigrants by making
certain levels of capital investment and associated job creation or
preservation. One aspect of this program (the Regional Center Pilot
Program) encourages foreign investors to invest funds in a distinct
economic “regional center.” A regional center is an economic unit,
public or private, engaged in the promotion of economic growth,
improved regional productivity, job creation, and increased domestic
capital investment. See 8 CFR 204.6(e). An individual or entity
interested in participating in the Regional Center Pilot Program must
file a Regional Center Proposal with USCIS to request USCIS approval of
the proposal and designation of the entity as a regional center. The
proposal must provide a framework within which individual alien
investors affiliated with the regional center can satisfy the EB-5
eligibility requirements and create qualifying EB-5 jobs.\9\
—————————————————————————

\9\ See “Adjudication of EB-5 Regional Center Proposals and
Affiliated Form I-526 and Form I-829 Petitions; Adjudicators Field
Manual (AFM) Update to Chapters 22.4 and 25.2,” Donald Neufeld,
Acting Associate Director, Domestic Operations, USCIS (Dec. 11,
2009); http://www.uscis.gov.
—————————————————————————

USCIS’s fee study found that these designations are exceptionally
labor intensive for USCIS. Historically, the cost of this designation
process has been borne by all fee-paying applicants and beneficiaries.
Accordingly, to refine the cost accounting and fee structure, and to
make the distribution of costs more equitable, DHS proposes a new fee
of $6,230 per request for designation.
9. Employment Authorization Document Fees for Applicants Covered by
Deferred Enforced Departure (Form I-765)
DHS proposes to collect a fee for an Application for Employment
Authorization and the associated biometrics for aliens granted deferred
enforced departure (DED). DHS also proposes to remove an extraneous
provision from the employment authorization regulations relating to
aliens granted “extended voluntary departure by the Attorney General
as a member of a nationality group pursuant to a request by the
Secretary of State.” 8 CFR 274a.12(a)(11).
In the Immigration Act of 1990, Congress established the temporary
protected status (TPS) program and instructed that TPS constitutes the
exclusive authority of the Attorney General (now the Secretary of
Homeland Security) to permit deportable or paroled aliens to remain in
the United States temporarily because of their particular nationality.
See INA sec. 244(g), 8 U.S.C. 1254a(g). Accordingly, since 1990 neither
the Attorney General nor the Secretary have designated a class of
aliens for nationality-based “extended voluntary departure,” and
there no longer are aliens in the United States benefiting from such a
designation. Accordingly, DHS proposes to remove the obsolete reference
to extended voluntary departure.
On occasion, however, Presidents have issued executive orders or
memoranda directing the deferral of enforced departure from the United
States of certain nationals of a particular country for temporary
periods and have directed that eligible individuals be provided
employment authorization during the period of deferral. See, e.g.,
Exec. Order No. 12711, 55 FR 13897 (April 11, 1990) (deferring
departure of certain Chinese nationals); Memorandum from President
Barack Obama to Secretary of Homeland Security Janet Napolitano
Extending Deferred Enforced Departure for Liberians (Mar. 20, 2009),
available at http://www.whitehouse.gov/the_press_office/Presidential-
Memorandum-Regarding-Deferred-Enforced-Departure-for-Liberians. DHS
proposes changes that will clarify its authority to process and collect
a fee for EADs and associated biometrics for aliens eligible for DED.
Proposed 8 CFR 103.7(b) and 274a.12(a)(11). Collection of the EAD fee
from individuals who are covered by an occasional Presidential
directive to defer their departure temporarily will facilitate
adjudication of the benefit, and the production of secure, biometric
EADs, as with other EAD-eligible groups, such as aliens granted TPS. An
EAD applicant may request a fee waiver based on an inability to pay the
fee. The new provision will still be in regulations governing work
authorization incident to status. 8 CFR 274a.12(a). The proposed change
specifies that work authorization will be provided under terms and
conditions set by the Secretary consistent with the President’s DED
directive. Proposed 8 CFR 274a.12(a)(11).

C. Summary

Projected costs are expected to exceed projected revenue. This
differential must be addressed with increased revenue, notwithstanding
new appropriations and cost adjustments. Increased revenue will be
derived from new immigrant visas, civil surgeon designations, and
immigrant investors. Increased revenue will also be derived from a
weighted average fee increase on existing immigration benefits. Some
fees will be reduced due to lower processing costs; other fees will
increase. The level of fee increase necessary to align costs and
revenue is a weighted average of 10 percent after adjusting prices to
account for reduced surcharges and other costs from appropriations for
SAVE, Office of Citizenship, refugee and asylum costs, and military
naturalization reimbursements from DOD. USCIS will adjust fees
consistent with the details of this supporting documentation if
proposed appropriations are not approved.

D. Performance Improvements

In the FY 2008/2009 fee rule, USCIS committed to a series of
performance improvements and reduced processing time goals. For the FY
2010/2011 period, USCIS is identifying in this fee rule a new set of
goals and performance improvements that are aimed at increasing
accountability, providing

[[Page 33458]]

better customer service, and increasing efficiency. These enhancements
include:
Expanding the use of Systems Qualified Adjudication to a
larger share of USCIS’s workload. USCIS expects all Form I-90, I-765,
and I-821 re-registration applications will be supported by electronic
adjudication by September 2011. In addition to improving the processing
of these requests, this step will provide adjudicators with more time
to focus on more complex applications.
Begin Deployment of Transformed Processes and System.
USCIS expects to deploy the initial increment of its transformation
program by the end of FY 2011. As one of the Administration’s High
Priority Performance Goals,\10\ USCIS has committed to ensuring that at
least 25 percent of applications will be electronically filed and
adjudicated using the new transformed integrated operating environment
by FY 2012.
—————————————————————————

\10\ See Memorandum for the Heads of Departments and Agencies,
Planning for the President’s Fiscal Year 2011 Budget and Performance
Plans, from Peter R. Orszag, Director, Office of Management and
Budget, June 11, 2009.
—————————————————————————

Integration of productivity measures in future fee review
methodology. Beginning with the next fee rule, USCIS will integrate
productivity measures into the underlying methodology USCIS uses to
conduct fee studies. This means that efficiency gains resulting from
information technology investments and process improvements will be
clearly identified, including the cost savings that occur due to these
changes, ensuring that those savings are incorporated into new fee
amounts.

V. Fee Review Methodology

When conducting a fee review, USCIS reviews its recent cost
history, operating environment, and current service levels to determine
the appropriate method to assign costs to particular benefit requests.
The methodology used in the review reflects a robust capability to
calculate, analyze, and project costs and revenues.
USCIS uses commercially available activity-based costing (ABC)
software to create financial models to calculate immigration benefit
requests and biometric service fees. Following the FY 2008/2009 Fee
Rule, USCIS identified several key methodology changes to improve the
accuracy of the ABC model. Improvements were also suggested by the
Government Accountability Office (GAO) following a review and
completion of the FY 2008/2009 Fee Rule.\11\ These changes include
analyzing cost allocation methods to evaluate methods that may offer
greater precision and fully documenting the rationale and any related
analysis for using the assumptions and cost assignment methods
selected. USCIS continues to update the ABC model with the most current
information for fee review and cost management purposes.
—————————————————————————

\11\ Government Accountability Office, Immigration Application
Fees: Costing Methodology Improvements Would Provide More Reliable
Basis for Setting Fees (GAO-09-70, Jan. 23, 2009); Government
Accountability Office, Federal User Fees: Additional Analyses and
Timely Reviews Could Improve Immigration and Naturalization User Fee
Design and USCIS Operations (GAO-09-180, Jan. 23, 2009); Statement
of Susan J. Irving, Government Accountability Office, Federal User
Fees: Fee Design Characteristics and Trade-Offs Illustrated by
USCIS’s Immigration and Naturalization Fees, Testimony before the
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law, Committee on the Judiciary, U.S. House of
Representatives, 18 (March 23, 2010) (Noting that “Any user fee
design embodies trade-offs among equity, efficiency, revenue
adequacy, and administrative burden.”).
—————————————————————————

A. Background

ABC is a business management tool that assigns resource costs to
operational activities and then to products and services. These
assignments provide an accurate cost assessment of each work stream
involved in producing the individual outputs of an agency or
organization. ABC is a preferred cost accounting method endorsed by the
FASAB and enables USCIS to conform to Managerial Cost Accounting
Concepts and Standards for the Federal Government.\12\
—————————————————————————

\12\ Federal Accounting Standards Advisory Board, Statement of
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government 36 (July 31,
1995).
—————————————————————————

1. ABC Methodology
a. Resources
The total resource base for the ABC model is the FY 2010/2011 cost
baseline and assumes that USCIS will receive $55 million in FY 2010 and
$238 million in FY 2011 from appropriations to replace surcharges. The
resulting $2.271 billion (see Table 6) is the estimated cost of FY 2010
and FY 2011 resources necessary to fund the full cost of processing
immigration benefit requests and biometric services for which USCIS
charges a fee, as well as the cost of providing similar services at no
cost. This represents the first stage of the ABC process.
The ABC model structure for FY 2010/2011 was designed to closely
resemble the structure of the FY 2009 Annual Operating Plan (AOP). The
AOP is the detailed budget execution plan USCIS establishes at the
beginning of the fiscal year consistent with the Congressionally
approved fiscal year appropriation and forecasted fee revenue. The
model includes the same USCIS offices and individual line items
associated with these offices. This structure provides a common format
and creates a means to project out-year budgets and potentially track
commitments, obligations, and expenditures by the operating plan line
item description in the model.
The ABC model structure for the FY 2008/2009 Fee Rule was based on
the FY 2007 AOP. Headquarters payroll and agency-wide non-payroll were
very similar to the operating plan; however, payroll for field offices
(Service Centers, District Offices, National Benefits Center, and
National Records Center) was broken down into sub-categories similar to
the internal USCIS Staffing Allocation Model (SAM).\13\
—————————————————————————

\13\ The Staffing Allocation Model is a model used to calculate
estimates of staffing types and levels necessary to undertake
specific workload (e.g., applications and petitions) levels at
target processing times.
—————————————————————————

b. Resource Drivers and Resource Assignment
ABC methodology uses resource drivers to assign resources to
activities. Using the resource base of $2.271 billion, costs are
assigned to activities using resource drivers. All resource costs are
assigned to activities, so the total resources in the model equal the
total cost of activities. This represents the second stage of the ABC
process.
A commonly used resource driver in ABC is an organization’s number
of employees and the percentage of time they spend performing certain
activities. The FY 2010/2011 ABC model uses this methodology to assign
resources to activities. The ABC model assigns resources to activities
using authorized positions by funding stream (fund code) and Program,
Project, and Activity (PPA) for each USCIS office. This driver is then
weighted by the percentage of on-board positions performing specific
activities within each USCIS office. These percentages are determined
using a payroll position title analysis. The payroll position title
analysis identifies the percentage of each office that is dedicated to
the nine ABC activities (for more information see the section titled
“Activities” below) by reviewing the titles and position descriptions
of its workforce.
Other resource drivers in the FY 2010/2011 model include a direct
driver

[[Page 33459]]

and a rent driver that are similar to those used in the FY 2008/2009
model. The direct driver assigns specific resources directly to
activities. For example, the contract issued for USCIS Application
Support Centers (ASCs) only pertains to the capture biometrics
activity. Therefore, the costs associated with this contract are
assigned directly to the capture biometrics activity using a direct
driver. The rent driver assigns estimated rent costs for each fiscal
year to each USCIS office based on projected FY 2010 rent costs by
location. Other overhead costs, such as the Office of Information
Technology, service-level agreements, and the DHS working capital fund
costs are distributed to each USCIS office on a prorated basis by
authorized positions.
The FY 2008/2009 model used total authorized positions as the
primary resource driver. For Headquarters offices, this driver was
weighted by the estimated percentage of time spent performing certain
activities, based on operational knowledge. For field offices, total
positions were weighted by the time spent performing certain
activities, based on operational knowledge as well as time percentages
determined using officer hour data from the USCIS Performance Analysis
System (PAS).\14\
—————————————————————————

\14\ The USCIS Performance Analysis System (PAS) is an online
data entry and retrieval system used to track workload
accomplishments and human resources expenditures.
—————————————————————————

The allocation methods in the FY 2008/2009 Fee Rule, as well as the
FY 2010/2011 Fee Review, are consistent with the FASAB Standard 4 on
managerial cost accounting concepts. They fulfill the mandate to
directly trace costs when feasible, and to either assign costs on a
cause-and-effect basis or allocate them in a reasonable and consistent
way.
c. Activities
In ABC, activities are the critical link between resources and cost
objects. This represents the third stage of the ABC process. Projected
operating costs (resources) for FY 2010/2011 are spread to nine
activities. They are:
Inform the Public involves receiving and responding to
applicant and petitioner inquires through telephone calls, written
correspondence, or walk-in inquiries;
Capture Biometrics involves the electronic capture of
biometric information (fingerprint and photograph), background checks
performed by the FBI, and use of the collected biometrics for verifying
the identity of the applicants;
Intake involves mailroom operations, data capture and
collection, file assembly, fee receipting, and file room operations;
Conduct Interagency Border Inspection System (IBIS) Checks
involves the process of comparing information on applicants,
petitioners, beneficiaries, derivatives, and household members who
apply for an immigration benefit against various Federal lookout
systems;
Review Records involves searching and requesting files;
creating temporary and/or permanent alien files; consolidating files;
connecting returned evidence with application or petition files;
pulling, storing, and moving files upon request; auditing and updating
systems on the location of files; and archiving inactive files;
Make Determination involves the tasks of adjudicating
immigration benefits; making and recording adjudicative decisions;
requesting and reviewing additional evidence; interviewing applicants;
consulting with supervisors or legal counsel; and researching
applicable laws and decisions on non-routine adjudications;
Fraud Detection and Prevention involves activities
performed by the Fraud Detection and National Security Directorate in
detecting, combating, and deterring immigration benefit fraud, and
addressing national security and intelligence concerns;
Issue Document involves the tasks of producing and
distributing secure cards that identify the holder as an alien and also
identify his or her status or employment authorization;
Management and Oversight involves activities in all
offices that provide broad, high-level leadership to meet USCIS goals.
Management and Oversight is an activity designed to capture
managerial activities at Headquarters and in the field. This activity
provides a more specific depiction of the work performed by certain
offices. All Headquarters offices \15\ are allocated to Management and
Oversight in their entirety, including the Executive Secretariat;
Office of Administration; Office of the Chief Financial Officer; Office
of Citizenship; Office of Communications; Office of Congressional
Relations; Office of Emergency Preparedness and Coordination; Office of
Equal Opportunity & Inclusion; Office of Human Capital, Training, and
Management; Office of Policy & Strategy; Office of Privacy; Office of
Security & Integrity; Office of the Chief Counsel; Office of the Deputy
Director/Chief of Staff; Office of the Director; Office of
Transformation Coordination;\16\ and Office of Records.
—————————————————————————

\15\ In January 2010, USCIS realigned its structure and
management functions that created new offices and modified the
reporting relationship between others. For the purpose of this fee
review, the previous organizational chart, valid as of February
2009, was used.
\16\ The only portion of the Office of Transformation
Coordination that is treated as a Headquarters office is funding for
staff (payroll, overtime, and awards) and related general expenses.
Other programmatic costs are funded by premium processing revenue.
—————————————————————————

The payroll title analysis allowed USCIS to identify leadership
positions in the field offices that should be allocated to the
Management and Oversight activity. Projected operating costs for FY
2008/2009 were spread to the nine activities (Inform the Public,
Intake, Capture Biometrics, Conduct IBIS Check, Review Records, Fraud
Detection and Prevention, Make Determination, and Issue Document).
Management and Oversight was not a separate activity.
d. Activity Drivers and Activity Assignment
The fourth stage in the ABC process is driving the activity costs
to the immigration benefits (cost objects). Activity costs are
primarily spread to immigration benefit requests based on the
percentage of total projected volume, as similar time and effort are
involved in processing each application. There are unique drivers used
for two of the activities–Capture Biometrics and Make Determination.
The Make Determination activity is spread to requests by a factor of
average adjudication time and projected volume (i.e., projected
adjudication hours) as these metrics pertain directly to the
adjudication function and can vary significantly by application. The
general premise is that the more time spent adjudicating a request, the
higher the fee. Exceptions to this general rule occur when volumes skew
unit costs (e.g., high-volume applications tend to have lower unit
costs since costs are allocated over a higher volume base) or
additional activities are performed (e.g., some applications require
the creation of secure cards). Capture Biometrics uses a direct
activity driver to drive all of the costs associated with this activity
to Biometric Services.
Activity costs are spread to immigration benefit requests by the
locations where they are processed apart from the Intake activity.
Intake is primarily performed at the Lockbox; however, some intake is
performed at the field offices. Due to varying costs at field
locations, spreading intake costs by a percentage of total field office
costs introduces inaccurate variability in

[[Page 33460]]

intake costs by request. There is little variability in the intake
process by request type and therefore, intake costs are spread using an
average cost per request. Ultimately, nearly all immigration benefit
request types will be received only by Lockbox locations.
Activity costs for the FY 2008/2009 Fee Rule were spread by
projected volume weighted by average adjudication time for the Make
Determination activity. All other activity costs were spread using an
average activity cost per application.
e. Cost Objects
Cost objects are the immigration benefits and biometric services
for which USCIS charges a fee. Driving activity costs to the cost
objects is the final stage of the ABC process.
Application costs were derived for virtually every immigration
benefit that USCIS adjudicates including those filed for asylum and
refugee protection, Temporary Protected Status, Premium Processing, and
H-1B nonimmigrant petitions. The IEFA cost of requests for which no
revenue is recovered is redistributed to other applications in a
prorated manner similar to the way the FY 2008/2009 Fee Rule handled
requests. Temporary Protected Status (Form I-821), Nicaraguan
Adjustment and Central American Relief Act (NACARA) (Form I-881)–
Suspension of Deportation or Application Special Rule, are temporary
programs. Thus USCIS does not rely on their revenue in the FY 2010/2011
Fee Review to support baseline operations, although their costs are
analyzed.
A separate fee for biometric services was also derived. The
proposed rule continues to provide for a separate $85 biometric fee to
accommodate national security and fraud detection decisions that may
require extension of biometric requirements to additional immigration
benefit requests that do not already include that fee. Table 7 outlines
the fees for immigration benefits that require biometric services.
These fees assume receipt of $283 million in appropriated funds in FY
2011 for refugee, asylum, military naturalization, SAVE, and Office of
Citizenship activities.
[GRAPHIC] [TIFF OMITTED] TP11JN10.011

Table 8 outlines the fees for immigration benefits if Congress does
not enact the requested appropriations for SAVE and the Office of
Citizenship.
—————————————————————————

\17\ Applicants submitting a Form I-131, Travel Document–
Advance Parole, are not required to pay the biometrics fee.
\18\ Amerasian applicants are the only class of I-360 applicants
required to pay for biometric services.

—————————————————————————

[[Page 33461]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.012

2. Low Volume Reallocation
USCIS is using its fee setting discretion to adjust certain
application and petition fees when the low volume that is projected
leads to particularly high unit cost increases. USCIS determined in its
fee study that the combined effect of cost, revenue estimates, and
methodology results in an inordinate fee burden being placed on these
requests relative to other benefit requests. For example, without
reallocation for an orphan petition, the fee for that form would be
$1,455. USCIS believes it would be contrary to the public interest to
impose a fee of this size on an estimated 25,000 potential adoptive
parents each year. Similar disparate effects occur for all of the form
types that are being adjusted using a low volume reallocation. Thus,
USCIS has decided, based on its experience in carrying out immigration
benefit programs, assessing fees, and the characteristics of various
applicants, that reasonable adjustments based on such equitable
considerations are justified.
USCIS will therefore limit the fee increase for these forms to an
increase equal to the weighted average percentage fee increase of all
immigration benefits. The additional costs from these form types are
then prorated to other benefits. This same methodology was used
effectively in the FY 2008/2009 Fee Rule. 72 FR at 4910. The benefit
requests requiring a low volume adjustment for the FY 2010/2011 Fee
Rule are:
Petition for Amerasian, Widow(er), or Special Immigrant
(with respect to Form I-360 applicants who are not already exempt from
paying the fee);
Application for Waiver of Grounds of Inadmissibility (Form
I-690);
Application to File Declaration of Intention (Form N-300);
Application to Preserve Residence for Naturalization
Purposes (Form N-470);
Orphan Petitions (Forms I-600/I-600A and I-800/I-800A,);
Notice of Appeal or Motion (Form I-290B);
Request for Hearing on a Decision in Naturalization
Proceedings (Form N-336); and
Waiver Forms (Forms I-191, I-192, I-193, I-212, I-601, I-
612).
Public comments would be particularly useful on whether to maintain
fees for certain low volume applications and petitions at levels below
the ABC model.
3. Application for Naturalization
DHS proposes to provide special consideration to the fee for an
Application for Naturalization (Form N-400), by limiting the fee at its
current level of $680 ($595 current fee with the $85 biometrics fee).
USCIS received many comments on the FY 2008/2009 Fee Rule expressing
concern that the N-400 fee had been increased inordinately. 72 FR at
29856.
DHS has determined that the act of requesting and obtaining U.S.
citizenship deserves special consideration given the unique nature of
this benefit to the individual applicant, the significant public
benefit to the Nation, and the Nation’s proud tradition of welcoming
new citizens. DHS believes this action to retain the naturalization fee
at the current level will reinforce these principles, allow more
immigrants to fully participate in civic life, and is consistent with
other DHS efforts to promote citizenship and immigrant integration.\19\
For these reasons, and based on its experience in administering the
naturalization program, DHS proposes to retain the fee for
naturalization at the current level over the FY 2010/2011 biennial
period.
—————————————————————————

\19\ See USCIS Office of Citizenship Vision and Mission at
http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
?vgnextoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5e
314c0cee47210VgnVCM100000082ca60aRCRD.
—————————————————————————

DHS recognizes that limiting the fee at its current level would
lead to the subsidization of naturalization by other fee-paying
applicants as allowed by INA section 286(m), 8 U.S.C. 1356(m). Charging
“other immigrants” who file an Application for Naturalization (Form
N-400) less than full cost of adjudicating that petition, or spreading
the costs of administration of USCIS more fully among non-
naturalization applicants, may be fairly interpreted as providing the
naturalization applicants with a part of that service “without
charge.” As

[[Page 33462]]

discussed in the Authority section of this rule, DHS is proposing to
shift this amount to other applicants as part of full cost recovery in
compliance with INA section 286(m).
This proposal would result in setting the fee for the Application
for Naturalization (Form N-400) at less than what the ABC model
generates as the full cost of adjudicating that application. A model-
based fee for naturalization would have increased the current fee level
by as much as $60 per application. DHS is anticipating receiving an
annual volume of 684,390 fee-paying naturalization applications (Form
N-400); accordingly, forgoing the $60 fee increase for the Form N-400
thus would reduce fee collections by approximately $41 million, as
compared to using the adjusted fee. As a result, retaining the current
fee will spread this portion of the cost from naturalization applicants
to other applicants and petitioners as part of full cost recovery in
implementing INA section 286(m), 8 U.S.C. 1356(m). The estimated fee
impact of this policy on other application and petition types is a
weighted average of $8.00 per application and petition (i.e., the
impact is greater or less than $8.00 for each application and petition,
with the weighted average being $8.00). DHS is specifically requesting
comments on this policy decision. The comments will be considered in
determining whether the final rule provides a fee of $680 as proposed
or a higher amount as calculated in the FY 2010/2011 Fee Review using
ABC methodology and all other factors that are part of calculations for
the final rule.\20\ Table 9 illustrates the impact of this proposed
policy decision across all fee paying applications and petitions.
—————————————————————————

\20\ The fees established in the final rule may vary based on
cost figures that are current when the final rule is drafted,
enacted appropriations, and adjustments made as a result of public
comments on all fees, waivers, exemptions, reallocations, and
general methodology. Adjustment of one fee will result in changes in
the fees for other benefit requests (raising or reducing fees)
depending on the action. The effect of a change in one fee on all
other fees cannot be precisely stated because of the other
adjustments that will be made.
Costs not recovered with respect to immigration benefits for
which the fee is set below the ABC model amount are spread to other
immigration benefits by the ABC model output amount. First these
redistributed costs are added to all non-held immigrant benefits.
Then these redistributed costs, as an average, are spread to the
fee-paying volume of each of the non-held immigrant benefit fees.
This methodology is consistent with the methodology used in the FY
2007 Fee Rule to spread these costs equitably to the benefit instead
of applying a fixed “surcharge.”
—————————————————————————

BILLING CODE 9111-97-P

[[Page 33463]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.013
[[Page 33464]]
[GRAPHIC] [TIFF OMITTED] TP11JN10.014

BILLING CODE 9111-97-C

B. Key Changes Implemented for the FY 2010/2011 Fee Review

1. Appropriation for Refugee, Asylum, and Military Naturalization
Benefits
Fee setting authority for the IEFA provides that fees may be set at
a level to fund the full cost of processing immigration benefit
requests and the full cost of providing similar benefits to asylum and
refugee applicants. INA sec. 286(m); 8 U.S.C. 1356(m). In the FY 2008/
2009 Fee Rule, USCIS attached a $72 surcharge to every immigration
benefit request representing the cost of workload for asylum and
refugee applicants as well as the cost of estimated fee waivers and
exemptions. 72 FR 29859. For the fees proposed in this rule, USCIS will
exclude the costs incurred for refugee, asylum, and military
naturalization workload from the ABC model. Appropriated funding for
these purposes was requested and partially approved for FY 2010;
additional appropriations to fund operations were requested for FY
2011.
International Operations (IO) processes immigration benefits and
petitions, facilitates the international adoption process, and serves
the immediate family members of U.S. citizens residing abroad who want
to adjust their status. In the FY 2008/2009 Fee Rule, IO’s costs were
part of the Refugee/Asylum surcharge applied to all fee-paying
applications and petitions. In this proposed rule, the portion of IO’s
budget attributable to processing refugee benefits has been included in
the requested appropriation. The remaining costs are included in the
IEFA cost baseline and recovered by fee revenue. The portion of IO that
processes fee-paying benefits will be funded using IEFA revenue. If the
FY 2011 request for appropriated funds is not enacted or enacted at a
reduced level, the model will be revised and the final fee structure
will reflect the costs of these activities.
2. Fee Waivers and Exemptions
DHS proposes to modify the regulatory language and clarify
eligibility for an individual fee waiver in 8 CFR 103.7(c). Where
appropriate in the IEFA fee structure, USCIS exempts certain classes of
applicants and petitioners from paying fees, and certain applicants may
be granted a fee waiver due to verifiable financial hardship. DHS
proposes to modify 8 CFR 103.7(c) to list benefit requests for which
applicants may request fee waivers.
DHS also proposes to add a new 8 CFR 103.7(d) to provide USCIS with
the discretion to approve and revoke exemptions from fees, or provide
that the fee may be waived for a case or class of cases that is not
otherwise provided in 8 CFR 103.7(c). To exercise this authority, the
Director of USCIS must determine that such an exemption or waiver would
be in the public interest and the exception is not inconsistent with
other applicable law or regulation. DHS proposes that this exception
authority will be vested with the Director of USCIS and cannot be
delegated to any other official other than his or her deputy. USCIS
plans to issue internal guidance that will require requests for a
Director’s waiver to be sent to the USCIS District Office. The guidance
will require the District Office and applicable program directorate to
recommend approval, outline the reasons for the recommendation in their
transmission of the waiver or exemption request to the Director, and
certify that no other law or regulations are violated by granting the
waiver or exemption.
In addition, DHS proposes to remove the separate fee waiver
provisions that relate to applications for temporary protected status
(TPS). See 8 CFR 244.20. The applicant must show that he or she is
unable to pay the prescribed fees to establish eligibility for a waiver
of the fee for an application for TPS. Those requirements differ only
slightly from the more general fee waiver eligibility in 8 CFR 103.7(c)
and the redundant provisions have been the source of confusion. These
proposed modifications ensure that waivers and exemptions are applied
in a fair and consistent manner.
3. Immigrant Visa Processing Fee
DHS is proposing to collect a fee for processing immigrant visas.
USCIS does not currently recover fees for the cost of processing visas
issued overseas by DOS, although USCIS offices expend time and effort
to process those visas. This practice is inconsistent with Executive
Branch guidance in OMB Circular A-25 to recover the full cost of
providing a service to the public. Historically, these costs were
carried as overhead and spread across all fee-paying applicants. By not
collecting a fee for this service while incurring significant
associated costs, USCIS is placing additional burdens on all fee-paying
applicants. The fee proposed in this rule for immigrant visas was
calculated at the amount necessary to fully recover the costs to USCIS
for processing these requests. This new fee will result in a smaller
increase in the fees proposed for other benefit requests absent this
action.
While USCIS does not adjudicate immigrant visas applications, USCIS
resources are required to complete the processing of this benefit when
an immigrant visa is granted by a DOS

[[Page 33465]]

consular officer. An individual receiving a visa from a DOS consulate
overseas receives visa documentation and his or her photograph in a
sealed application package. The individual takes the application
package with him or her for use at the U.S. port of entry. At the port
of entry, a U.S. Customs and Border Protection (CBP) officer will
inspect the individual and fill out remaining information and collect
remaining application documentation. CBP forwards the immigrant visa
package to USCIS for review and entry into USCIS data systems. If a
deficiency is found, the visa case is referred to a USCIS District
Office for resolution. Typical deficiencies include missing
documentation, missing biometric information, unacceptable photographs,
and mismatches of admission stamp information. Some of the deficiencies
are resolved between USCIS and CBP.
When an immigrant visa is deemed complete and satisfactory, USCIS
enters the data; scans photographs, signatures and fingerprints; and
issues a permanent resident card. USCIS Service Centers often take
inquiries from immigrants until the card is received in the mail. USCIS
integrates visa documentation within a central alien file (A-File) and,
if none exists, a new A-File is created and stored. Of the nine ABC
activities, the following activities apply directly to processing
immigrant visas:
Intake–USCIS must receive immigrant visa packets from
CBP, perform data entry, and create a file for each individual packet.
Review Records–USCIS must ensure that inter-agency forms
that are essential to the immigrant visa process are received from the
appropriate source and collated into one A-file. Each immigrant visa
application becomes a record that must be stored, retrieved, and
archived as needed.
Issue Document–Each approved immigrant visa applicant
receives a permanent resident card (green card) created by the USCIS
Integrated Document Production office.
Inform the Public–USCIS receives and processes applicant
and petitioner service inquiries from immigrant visa applicants related
to their permanent resident status.
Management and Oversight–All applications processed by
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
The proposed fee to service each of the immigrant visas and issue a
permanent resident card, based on these activities, is $165.
4. EB-5 Regional Center Designation Fee
DHS is proposing an immigrant investor fee for individuals, State
or local government agencies, partnerships, or any other business
entity requesting approval and designation to be a regional center
under the Immigrant Investor Pilot Program (Pilot Program). See Public
Law 102-395, tit. VI, section 610, 106 Stat. 1874 (1992) (8 U.S.C. 1153
note). This program is distinct in certain ways from the basic EB-5
investor program. Foreign investors are encouraged to invest funds in
an economic unit known as a “regional center.” A regional center is
defined under 8 CFR 204.6(e) to mean any economic unit, public or
private, engaged in the promotion of economic growth, improved regional
productivity, job creation, and increased domestic capital investment.
USCIS regulations establish eligibility criteria for a regional center
and the related reporting requirements. 8 CFR 204.6(m)(3). In
conjunction with the new fee, the regional center reporting
requirements are proposed to be clarified in this rule. The reporting
requirements will make it clearer that the designation as a regional
center is subject to maintenance of the eligibility requirements, and
the provision of reports to USCIS showing continued compliance.
Proposed 8 CFR 204.6(m)(6).
The FY 2010/2011 fee study found that USCIS expends a lot of effort
to adjudicate a request for designation as an approved EB-5 regional
center. These applicants do not pay fees to cover the costs incurred to
carry out this program’s activities. As a result, the costs of staff
and resources necessary to carry out the regional center program have
been paid from revenue derived from other applications. In addition to
providing a vehicle for fee collection, the standardized “Application
for Regional Center under the Immigrant Investor Pilot Program,” (Form
I-924); will clarify requirements for a regional center document;
improve the quality of applications; better document eligibility for
the Pilot Program; alleviate content inconsistencies among applicants’
submissions; and support a more efficient process for adjudication of
applications.
Of the nine ABC activities, the following apply directly to
processing applications for Regional Centers:
Intake–USCIS must receive applications from individuals
or entities desiring to receive regional center designation, perform
data entry, and create a file for each individual packet.
Review Records–USCIS must ensure that evidence essential
to the adjudications process is received from the appropriate source
and collated into one file. Each application becomes a record that must
be stored, retrieved, and archived as needed.
Inform the Public– USCIS receives and processes applicant
and petitioner service inquiries from applicants related to the status
of their applications.
Fraud Prevention and Detection–The authenticity of each
application must be analyzed in order to prevent immigration benefit
fraud.
Make Determination–The Regional Center application
requires the submission of extensive documentation and statistical data
concerning the geographical region the center will affect. Applicants
must also provide thorough business plans, analysis of the potential
economic impact the center will have, and proof of immigration status
for review by USCIS.
Management and Oversight–All applications processed by
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
Based on these activities, a proposed fee of $6,230 has been
calculated for servicing these applications. USCIS estimates that it
will receive an average of 132 applications for regional centers per
year. Based on the experience USCIS has in administering the regional
center and EB-5 investor program, and knowledge of the entities that
file the typical application, this fee is affordable and it is
reasonable to collect it from the affected applicants. For example, a
review of investment subscription agreements and limited partnership
membership agreements provided in support of recently submitted
proposals during the USCIS adjudication process indicates that multiple
investors typically paid from $25,000 to $50,000 each for the
opportunity to invest in a project, in addition to the minimum
investment required by DHS regulations to be a EB-5 investor.\21\ Thus,
regardless of the low annual volume estimate, no low volume
reallocation of the costs of the EB-5 investor program is being
proposed. Thus, the fee of $6,230 will be collected from each
applicant.
—————————————————————————

\21\ http://www.uscis.gov/eb-5centers.
—————————————————————————

5. Civil Surgeon Program
DHS is proposing a new fee for individuals requesting civil surgeon
designation. Civil surgeons are physicians who are authorized to
conduct medical examinations that are required of applicants for
certain immigration benefits. 42 CFR part 34. See also ch. 373, title
III, secs. 325, 361, 58 Stat. 697, 703 (Jul. 1, 1944); 42 U.S.C.

[[Page 33466]]

252, 264 (requiring the Secretary of HHS to make and enforce
regulations necessary to prevent the introduction, transmission, or
spread of communicable diseases from foreign countries into the
States). Section 232(b) of the INA, 8 U.S.C. 1222(b), provides for
officers of the United States Public Health Service (USPHS) to conduct
physical and mental examinations of arriving aliens. If there are not
enough USPHS officers to conduct these examinations, section 232(b)
provides for the designation of civilian physicians as “civil
surgeons,” who are then authorized to conduct the examinations. Under
section 451(b) of the Homeland Security Act of 2002, Public Law 107-
296, 116 Stat. 2135, 2195 (2002), the authority to designate civil
surgeons transferred on March 1, 2003, from the Attorney General to the
Secretary of Homeland Security. 6 U.S.C. 271(b), 557; see also 8 CFR
part 2.1. The Secretary of Homeland Security has delegated the
authority to designate civil surgeons to USCIS. The civil surgeon must
conduct all examinations in accordance with Technical Instructions for
the Medical Examination of Aliens in the United States, adopted by the
Centers for Disease Control and Prevention of the United States
Department of Health and Human Services. See http://www.cdc.gov/
immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-
surgeons.html. The INA provides that officers of the United States
Public Health Service (USPHS) or civil surgeons, when USPHS officers
are not available, conduct physical and mental examinations of arriving
aliens. INA section 232(b), 8 U.S.C. 1252(b). The civil surgeon
designation is required for physicians wishing to conduct physical and
mental examinations of those seeking admission into the United States
or applying for adjustment of status. Id.; 8 CFR 232.2(b). It is
currently within the authority of the District Directors to designate
civil surgeons for each district. See 8 CFR 232.2(b). Currently, USCIS
does not recover the costs of granting civil surgeon designation and
managing the Civil Surgeon Program. This is inconsistent with OMB
Circular A-25 requirements that USCIS recover the full cost of services
provided to the public. DHS, therefore, proposes a fee to correct that
oversight in this proposed rule.
In the future, the civil surgeon designation process will be
standardized. USCIS will develop a standard designation process and
form, maintain an accurate, regularly-updated list of civil surgeons,
ensure that the program is self-funded, and improve communication
between USCIS and civil surgeons. Six of the nine ABC activities apply
to the civil surgeon designation process:
Intake–USCIS must receive requests for civil surgeon
designation, perform data entry, and create a file for each individual
application.
Review Records–USCIS must ensure that evidence essential
to the designations process is received from appropriate sources and
collated into one file. Each application becomes a record that must be
stored, retrieved, and archived as needed.
Inform the Public–USCIS receives and processes applicant
and petitioner service inquiries from applicants related to the status
of their applications.
Fraud Prevention and Detection–The authenticity of each
application must be analyzed in order to prevent potential immigration
benefit fraud.
Make Determination–All physicians applying for civil
surgeon designation will be vetted for any adverse actions pending
against them by the State medical licensing authorities to determine
eligibility.
Management and Oversight–All applications processed by
USCIS receive a portion of the cost of high-level leadership and non-
adjudicative support from Headquarters offices.
The FY 2010/2011 Fee Study calculated the costs of carrying out
each of these activities as, respectively, $26, $61, $85, $24, $350,
and $69, for a total proposed fee of $615 for this benefit. Doctors who
request a civil surgeon designation will add a payment of $615 to the
items that are currently required. Since the estimated number of civil
surgeon designation requests is only 3,410 per year, the impact of this
proposed fee on other fees is negligible. Nevertheless, even though
they amount to only $1.9 million per year, these costs should not be
covered by other fee payers.

VI. Volume

USCIS uses two types of volume data in the fee review. Workload
volume is a projection of the total number of immigration benefit
requests received in a fiscal year and is used to determine the amount
of resources needed. Fee-paying volume is a projection of how many
applicants will pay a fee for a request. Since USCIS may waive the fee
or allow an exemption for certain classes of applicants, fee-paying
volume is used to determine projected revenue.
Workload Volume is a primary cost driver for assigning
processing activity costs to immigration benefit requests in the USCIS
activity-based cost model. Workload volume is projected for each
immigration benefit by Service Centers, National Benefit Center, and
District Offices in order to assign costs where the work is performed,
and thus where costs are realized.
Fee-paying Volume is used to calculate proposed fees for
immigration benefit requests and biometric services. The fee-paying
volume for each form is determined by dividing the actual fee revenues
per request in FY 2008 by the FY 2008 fee to determine the fee-paying
percentage, and then applying that percentage to projected workload
volumes. USCIS adjusts FY 2008 fee-paying volumes to reflect filing
trends and anticipated changes in order to project FY 2010/2011 fee-
paying volumes.
USCIS projects workload volumes based on filing trends in FY 2009
and projected changes for FY 2010/2011. USCIS also utilizes time series
model data from the last 15 years developed by the DHS Office of
Immigration Statistics (OIS), as well as the best available internal
understanding of future developments. Given the size and scope of
current negative economic conditions, historical data may not provide
sufficient insight into the likelihood or timing of volume increases or
decreases. Consequently, USCIS has taken a conservative approach to
workload volume estimates for FY 2010/2011.
USCIS reviews short- and long-term volume trends and assesses OIS
trend data with representatives of other affected components of DHS.
OIS volume estimates by application or petition type are primarily
drawn from time series models. The time series models analyze
historical receipts data in order to capture patterns (such as level,
trend, and seasonality) or correlations in historical events. These
patterns and correlations are then extrapolated into the future in
order to derive projected receipts. All of the models capture the
behavioral relationships and dependencies of receipts to past values.
For example, the models factor in the correlation between the number of
pending Form I-485, Application to Register Permanent Residence or
Adjustment of Status, and the projected number of receipts for the Form
I-765, Application for Employment Authorization, and the Form I-131,
Application for Travel Document. DHS, USCIS, and OIS will continue to
improve both the estimating process and the basis for specific
estimates.
Table 10 summarizes the FY 2008/2009 workload volume and the
projected workload volume for FY 2010/

[[Page 33467]]

2011 based on trends and projected changes by immigration benefit
request. The projected workload volume is used in the cost model to
determine request costs. USCIS has experienced a general decrease in
volume and expects that trend to continue.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TP11JN10.015
[[Page 33468]]
[GRAPHIC] [TIFF OMITTED] TP11JN10.016

The projected fee-paying volume is used to determine immigration
benefit and biometric service unit costs and ultimately the proposed
fees. A comparison of 2008/2009 Fee Rule fee-paying volume to projected
2010/2011 fee-paying volume, along with the difference between the two,
is outlined in Table 11.

[[Page 33469]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.017
[[Page 33470]]
[GRAPHIC] [TIFF OMITTED] TP11JN10.018

VII. Completion Rates

USCIS uses completion rates, reflective of Immigration Services
Officer (ISO) hours per completion, to identify the adjudicative time
required to complete specific benefit requests from receipt to final
disposition. The rate for each benefit request represents an average,
as each case is different and some cases are more complex than others.
Completion rates reflect what is termed “touch time,” or the time the
ISO is actually handling the case. It is not reflective of “queue
time,” or time spent waiting, for example, for additional information
or supervisory approval. Nor does it reflect the total time applicants
and petitioners can expect to await a decision on their cases once they
are received by USCIS.
All ISOs are required to report completion rate information. In
addition to using this data to determine fees, completion rates are a
key factor in determining staffing allocations to match resources and
workload. For this reason, data reported are scrutinized by field and
regional office management officials, and by the Production Management
Branch (PMB) at USCIS headquarters to ensure data accuracy. When the
data are found to be inconsistent with other offices or with prior
reported data, the PMB contacts the reporting office and makes any
necessary adjustments. Completion rates, reflected in terms of hours
per completion, are summarized in Table 12. Completion rates are
calculated using data for the 12-month period of May 2008 through April
2009. While more recent rates are available, USCIS believes that the
rates utilized for the rule best reflect actual work times. More recent
rates that have not had sufficient review and analysis and may reflect
near-term trends and work fluctuations that could skew model outcomes.

[[Page 33471]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.019

 

\22\ Completion rates are calculated using data for the 12-month
period of May 2008 through April 2009.
\23\ Due to substantial changes in the business processes used
to adjudicate the I-90, the completion rate is the 3-year service-
wide average from May 2006 through April 2009.
\24\ Data for the I-290B was not collected until October 2008,
therefore the completion rate time period is the 7-month period of
October 2008 through April 2009.

—————————————————————————

[[Page 33472]]

Completion rates for the following immigration benefits are not
utilized, due to the special nature of their processing or because
there is no fee for the application:
Application for Posthumous Citizenship (Form N-644);
Refugee/Asylee Relative Petition (Form I-730); Application for T
Nonimmigrant Status (Form I-914); and, Petition for U Nonimmigrant
Status (Form I-918). Applicants for these form types are exempt from
paying a fee.
Biometric Services (processed by the Application Support
Centers) are not included for each request type because specific costs
can be directly assigned to these services. Factors of volume and
completion rates are not necessary to assign processing costs to this
product.
Application for Temporary Protected Status (Form I-821)
and Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Form I-881) are not included because these
programs are temporary and USCIS does not assume their revenue streams
will continue.
The activities associated with processing immigrant visa
packages do not include adjudicative hours and costs are driven by
volume only.

VIII. Proposed Fee Adjustments

USCIS costs exceed projected revenue by an average of $214 million
each year, even after cuts in operations based on, among other things,
reduced workload and appropriations for asylum, refugee, SAVE, the
Office of Citizenship, and military naturalizations are taken into
account. While USCIS has taken action to minimize or decrease its
operating costs, the current deficit is too large to close using cost
cutting measures alone without a drastically negative impact on
service. USCIS must adjust the fee schedule to recover the full cost of
processing immigration benefits, and to continue to maintain current
service delivery standards.

A. Proposed Adjustments to IEFA Immigration Benefits

After resource costs are identified, they are distributed to
USCIS’s primary processing activities in the ABC model. This process
was more completely described in section V. Table 13 outlines total
IEFA costs by activity.
[GRAPHIC] [TIFF OMITTED] TP11JN10.020

Table 14 outlines IEFA costs by activity if FY 2011 appropriations
for SAVE and Office of Citizenship are not approved. As noted
previously, if appropriations differ from requested amounts, these
costs must be recovered from fees.

[[Page 33473]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.021

The activity costs are then distributed to the applications. Table
15 summarizes total revenue by immigration benefit request.

[[Page 33474]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.022

 

\25\ The Form I-687 was temporarily available only for
Legalization Applications Pursuant to the Northwest Immigrant Rights
Project (NWIRP) Settlement Agreement. Filing period ended Jan. 31,
2010.

—————————————————————————

[[Page 33475]]

Finally, consolidating the budget realignment proposed in the
President’s budget and this rule, Table 16 depicts the current and
proposed USCIS fees for immigration benefits and biometric services.
This proposed fee schedule is based on the President’s requested
appropriation to fund the Asylum/Refugee surcharge and for SAVE and
Office of Citizenship being enacted into law. In some applications, DHS
proposes to reduce the fees and fee increases are mitigated by the
President’s requested appropriation; in those applications where a fee
reduction is proposed, the President’s requested appropriation would
further reduce that fee. In one instance, the Application To Extend/
Change Nonimmigrant Status (Form I-539), the President’s requested
appropriation would alter a 2% increase in the modeled fee to a 5%
decrease in fee. If a different appropriation is enacted, the final
rule will adjust the fee schedule to accommodate the appropriated
funding.

[[Page 33476]]

[GRAPHIC] [TIFF OMITTED] TP11JN10.023

BILLING CODE 9111-97-C

[[Page 33477]]

B. Proposed Adjustments to Premium Processing Fee

The Immigration and Nationality Act permits certain employment-
based immigration benefit applicants to request, for a fee, premium
processing. INA sec. 286(u), 8 U.S.C. 1356(u). The premium processing
fee is paid in addition to the base filing fee. Premium processing
guarantees that USCIS will process an application within fifteen days.
Id; 8 CFR 103.2(f). The Act provides that premium processing revenue
shall be used to fund the cost of offering the service, as well as the
cost of infrastructure improvements in adjudications and customer
service processes.\26\ Id. USCIS, therefore, segregates revenue from
the premium processing and dedicates it to transitioning USCIS from a
paper-based operational environment to a paperless electronic case
management environment.\27\ This program is an extensive, multi-year
effort, estimated for completion over a five-year period. Unlike
previous efforts to modernize USCIS, however, the Transformation
program will implement near-term improvements as they are developed,
allowing USCIS and its customers to benefit more quickly with improved
service. Transformation will comprehensively touch every aspect of
USCIS business operations such as information collection, storage, and
data sharing; customer service and support, adjudicatory processes;
staff roles and responsibilities; and information technology.
—————————————————————————

\26\ In the June 2007 Annual Report to Congress, the USCIS
Ombudsman stated that “premium processing is less costly than
regular USCIS benefits processing because fewer repeat steps are
necessary, fewer employees must handle these applications, and
delayed processing inquiries are eliminated. USCIS has not provided
any credible data to the contrary. The margin of income that USCIS
can derive from premium processing is higher than from regular
processing.” and made the recommendation that “USCIS conduct a
thorough, transparent, and independent analysis of premium
processing costs as compared with regular processing.” Citizenship
and Immigration Services Ombudsman, Annual Report to Congress, June
2007, (Recommendation AR 2007-07). A subsequent review by the GAO,
Immigration Application Fees: Costing Methodology Improvements Would
Provide More Reliable Basis for Setting Fees (GAO-09-70, Jan. 23,
2009), suggested that a decision to dedicate all premium revenues to
transformation may create inequities where persons not paying for
premium processing service still pay the cost of premium processing
operations. While the substance of the reports addresses two
separate matters, the unified concern is that undue cost and fee
burdens are being placed on persons who do not receive premium
processing services. Preliminary analysis of premium processing
costs indicates that the marginal increase in cost of premium
processing operations apart from regular processing is small.
\27\ USCIS separately tracks, from an accounting standpoint,
revenue receipts from each unique source (such as each application
type) including premium processing. All Immigration Examinations Fee
Account (IEFA) revenue is, however, deposited into a single account
including premium processing fees, and all expenditures are made
from this single unified account without separate tracking of
spending tied to the specific fees. Ultimately, there is no direct,
per dollar, matching of premium processing receipts used to fund
adjudication costs, expenditures for infrastructure improvements, or
USCIS operating expenses.
—————————————————————————

Transforming USCIS systems from paper to electronic is crucial to
the success of improving immigration services. The current business
model and supporting systems cannot meet anticipated demand and
unanticipated workload surges. Among many improvements, after the
transformation initiative is completed, USCIS expects much greater
utilization of the electronic submission of applications and supporting
documentation. Applicants and petitioners will be able to establish
online accounts, track activity on their cases, update personal
profiles, and will no longer need to resubmit duplicative biometric and
biographic information when applying for future benefits.
DHS proposes to adjust the premium processing fee by the percentage
increase in inflation according to the Consumer Price Index (CPI) since
the fee’s inception. The CPI is issued by the Department of Labor’s
Bureau of Labor Statistics (BLS) and can found at http://www.bls.gov/
cpi/cpi_dr.htm. In December 2000, Congress authorized the collection
of a premium processing fee in the amount of $1,000.\28\ INA sec.
286(u); 8 U.S.C. 1356(u). Although the law provides USCIS with explicit
authority to adjust the fee for inflation based on the CPI, USCIS has
not adjusted the fee since its inception in 2001. This adjustment was
recently recommended by the Government Accountability Office.
Government Accountability Office, Federal User Fees, GAO-09-180 (Jan.
2009).\29\ Therefore, DHS proposes to increase the premium processing
fee by applying the inflation rate since the fee’s inception in June
2001 until the date of publication of a final rule. For illustrative
purposes, the proposed rule uses the September 2009 CPI.
—————————————————————————

\28\ Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat.
2762, 2762A-68 (Dec. 21, 2000).
\29\ http://www.gao.gov/new.items/d09180.pdf.
—————————————————————————

USCIS uses the CPI for all urban consumers (CPI-U) because it is
the primary CPI measure. The CPI-U covers approximately 87 percent of
the total population.\30\ In June 2001, the CPI for all urban consumers
was 178.0. In March 2010, the CPI-U was 217.631. The 22 percent
increase to the CPI-U applied to the $1,000 fee results in a fee of
$1,223 ($1,225 after it is rounded to the nearest $5). This calculation
results in a proposed increase in the premium processing fee of $225.
The final fee could be different from this proposed amount, because the
CPI-U, upon which the fee adjustment is based, varies monthly; however,
the final fee rule will be based upon the same methodology. The final
rule will establish an amount based upon the latest published monthly
CPI before the final rule publication. DHS also proposes to specify
that USCIS will use the CPI-U to calculate all future inflation-based
fee adjustments and will publish a Notice in the Federal Register
annually (if applicable) to adjust this fee. See Proposed 8 CFR
103.7(b).
—————————————————————————

\30\ Consumer Price Index Overview. Bureau of Labor Statistics,
Dec. 09, 2009. http://www.bls.gov/cpi/cpiovrvw.htm#item1.
—————————————————————————

C. Removal of Fees Based on Form Numbers

Historically, USCIS has depended on paper files, which can make it
difficult to efficiently process immigration benefits. As discussed
above, USCIS is modernizing its processes and systems to accommodate
and encourage greater use of electronic data submission to include e-
filing and electronic interaction. Although it is possible some
applicants and petitioners may still choose to file paper forms, USCIS
plans to encourage electronic filing. USCIS will continue to describe
form names, numbers and filing instructions on its Internet Web site
and public information phone scripts; however, USCIS may change form
numbers as processes evolve.
To avoid prescribing fees in a manner that could undermine the
transformation process, DHS proposes fees based on form titles instead
of form numbers. Proposed 8 CFR 103.7(b)(1). Although the current form
number is included in the text of the regulation for each fee,
introductory text is proposed that will allow the form number to change
without affecting the fee. See Proposed 8 CFR 103.7(b).
As stated previously, current USCIS form fees and those proposed in
this rule are based on the average adjudication costs derived from the
ABC model. Many forms are used to request a wide variety of benefits
for which the evidentiary and adjudication requirements can be quite
disparate. For example, Form I-129, Petition for Nonimmigrant Worker,
is used for employers to petition for an alien to come to the United
States as an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-
2, P-2S, P-3, P-3S, Q-1, or R-1 nonimmigrant worker. Employers may also
use this form to

[[Page 33478]]

request an extension of stay or change of status for an alien as an E-
1, E-2, or TN nonimmigrant. The complexity of the evidence required to
document eligibility for each of the respective visas varies to some
degree based on factors too numerous to outline here. For another
example, Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant, is used to classify an alien as: (1) An Amerasian; (2) A
Widow or Widower; (3) A Battered or Abused Spouse or Child of a U.S.
Citizen or Lawful Permanent Resident; or (4) A special immigrant
defined as: A Religious Worker, Panama Canal Company Employee, Canal
Zone Government Employee, U.S. Government in the Canal Zone Employee;
Physician; International Organization Employee or Family Member;
Juvenile Court Dependent; Armed Forces Member; Afghanistan or Iraqi
national who supported the U.S. Armed Forces as a translator; or an
Iraqi national who worked for, or on behalf of, the U.S. Government in
Iraq. Several other examples exist. Future fee reviews may explore
establishing the fee schedule with an even wider range of discrete fees
than provided in this rule to more closely align the level of effort
expended or required to the fee. As an initial step toward such
refinement, this rule, by not proposing to promulgate fees based on a
precise form number, will allow that form number to be changed as part
of the initial phases of the transformation process.
To further facilitate USCIS transformation, 8 CFR 103.7(b) is being
restructured to clarify those fees that apply only to USCIS. DHS
regulations contain provisions that to varying degrees govern facets of
all of the immigration components of DHS–USCBP, USCIS and U.S.
Immigration and Customs Enforcement (ICE). This rule applies only to
USCIS. DHS will divide 8 CFR 103.7(b)(1) into separate regulatory
provisions containing those fees that are managed by USCIS only and
those that are shared with or managed by another immigration-related
component of DHS. Further, 8 CFR 103.7(c) regarding fee waivers is
restructured to list fees that can be waived, rather than those that
cannot be waived, and moves the provisions of 8 CFR 103.7(c)(1) into
more coherent paragraphs. In addition, the current requirement for an
“unsworn declaration” in 8 CFR 103.7(c) is overly technical for an
individual who may qualify for a fee waiver and that requirement is
proposed to be removed. Beyond the restructuring of 8 CFR 103.7(b) and
(c), however, DHS does not propose to change any authority other than
that of USCIS in any context. While DHS believes these structural
changes will clarify fee waiver policies, DHS specifically requests
comments on any unintended substantive effects. Finally, DHS proposes
to redesignate and revise 8 CFR 103.7(d) to remove extraneous language,
outdated terminology and excessive, internal, procedural detail.

D. Collection of Biometrics Fees Overseas

DHS proposes to remove the provision in current regulations that
exempts individuals who require fingerprinting and who reside outside
of the United States at the time of filing an immigration benefit
request from the requirement to submit the service fee for
fingerprinting with the application or petition for immigration
benefits. See current 8 CFR 103.2(e)(4)(ii). USCIS expects to collect
biometrics from an increasing number of overseas residents in order to
comply with the Adam Walsh Child Protection and Safety Act of 2006,
which restricts the ability of any U.S. citizen or lawful permanent
resident alien who has been convicted of any “specified offense
against a minor” to file certain family-based immigration petitions,
unless USCIS determines that the petitioner poses no risk to the
intended beneficiaries of the petition. Public Law 109-248, secs.
402(a) and (b), 120 Stat. 587, 622 (2006). Moreover, USCIS believes
that overseas residents can or should be required to pay fees
commensurate with the services being provided. The cost of conducting
biometrics overseas should not be borne by other applicants. Thus, DHS
proposes to eliminate this exemption. Projected biometric volumes for
the FY 2010/2011 fee review include overseas volumes.

IX. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C.
601(6), USCIS examined the impact of this rule on small entities. A
small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act, 15 U.S.C. 632), a small
not-for-profit organization, or a small governmental jurisdiction
(locality with fewer than fifty thousand people). Below is a summary of
the small entity analysis. A more detailed analysis is available in the
rulemaking docket at http://www.regulations.gov.
Individuals rather than small entities submit the majority of
immigration and naturalization benefit applications and petitions.
Entities that would be affected by this rule are those that file and
pay the alien’s fees for certain immigration benefit applications.
Consequently, there are four categories of USCIS benefits that are
subject to a RFA analysis for this rule: Petition for a Nonimmigrant
Worker (Form I-129); Immigrant Petition for an Alien Worker (Form I-
140); Civil Surgeon Designation; and the new Application for Regional
Center under the Immigrant Investor Pilot Program (Form I-924).
DHS does not believe that the increase in fees proposed in this
rule will have a significant economic impact on a substantial number of
small entities. Nevertheless, DHS is publishing this initial regulatory
flexibility analysis to aid the public in commenting on the small
entity impact of its proposed adjustment to the USCIS Fee Schedule. In
particular, DHS requests information and data that would lead the
agency to a different conclusion. DHS also seeks comment on significant
alternatives that accomplish the objectives of this rulemaking and that
minimize the rule’s economic impact on small entities.
1. A Description of the Reasons Why the Action by the Agency Is Being
Considered
DHS proposes to adjust certain immigration and naturalization
benefit fees charged by USCIS. USCIS has refined its cost accounting
process and determined that current fees do not recover the full costs
of services provided. Adjustment to the fee schedule is necessary to
recover costs and maintain adequate service.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
DHS’s objectives and legal authority for this proposed rule are
discussed in section II of this preamble.
3. A Description–and, Where Feasible, an Estimate of the Number–of
Small Entities to Which the Proposed Rule Will Apply
Entities affected by this rule are those that file and pay fees for
certain immigration benefit applications on behalf of an alien. These
applications include Form I-129 (Petition for Nonimmigrant Worker),
Form I-140 (Immigrant Petition for Alien Worker), Civil Surgeon
Designation, and Form I-924 (Application for Regional Center). Annual
numeric estimates of the small entities impacted by this fee increase
total: Form I-129 (87,220 entities), Form

[[Page 33479]]

I-140 (44,500 entities), Civil Surgeon Designation (1,200 entities),
and Form I-924 (132 entities).
This rule applies to small entities, including businesses, non-
profit organizations, and governmental jurisdictions filing for the
above benefits. Forms I-129 and I-140, will see a number of industry
clusters impacted by this rule (see Appendix A of the Small Entity
Analysis for a list of impacted industry codes). The fee for Civil
Surgeon designation will impact physicians seeking to be designated as
a Civil Surgeon. Finally, the Form I-924, will impact any entity
requesting approval and designation to be a Regional Center under the
Immigrant Investor Pilot Program.
(a) Petition for a Nonimmigrant Worker (Form I-129) and Immigrant
Petition for an Alien Worker (Form I-140)
USCIS proposes to increase the fee for Petition for a Nonimmigrant
Worker (Form I-129) from $320 to $325, a $5 (1.5%) increase. USCIS
proposes to increase the fee for Immigrant Petition for an Alien Worker
(Form I-140) from $475 to $580, a $105 (22%) increase. In order not to
underestimate the economic impact of this proposed rule on small
entities, this analysis uses a fee structure based on fees without
including appropriated funds. Therefore, the fees analyzed here are
Form I-129 at $355 ($35 increase) and Form I-140 at $630 ($155
increase).
Using fiscal year 2008 data on actual filings of Form I-129 and I-
140 petitions, USCIS collected internal data for each filing
organization including the name, Employer Identification Number (EIN),
city, State, zip code, and number/type of filings. Each entity may make
multiple filings; for instance, there were 525,709 I-129 and I-140
petitions, but only 148,289 unique entities.
Since the filing statistics do not contain information such as the
revenue of the business, a third party source of data was necessary to
help find this information. USCIS utilized the comprehensive online
database from Reference USA to help determine an organization’s small
entity status and then applied SBA guidelines to the entities under
analysis.\31\
—————————————————————————

\31\ The Reference USA Web site can be found at: http://
www.referenceusagov.com.
—————————————————————————

USCIS devised a methodology to conduct the small entity analysis
based on a representative sample of the potentially impacted
population. To achieve a 95% confidence level and a 5% confidence
interval on a population of 148,289 entities, USCIS used the standard
statistical formula to determine a minimum sample size of 383 entities
was necessary.
USCIS conducted searches on 891 randomly selected entities from a
population of 148,289 unique entities. Based on past experience, USCIS
expected to be able to find about 50 to 60 percent of the filing
organizations in the Reference USA database, which includes information
on approximately 14 million U.S. entities.
Accordingly, USCIS created a sample size much greater than the 383
minimum necessary in order to allow for these non-matches (filing
organizations that could not be found in the Reference USA database).
The 891 searches resulted in 512 instances where the name of the filing
organization was successfully matched with Reference USA and 379
instances where the name of the filing organization was not found in
the Reference USA database. Based on previous experience conducting
regulatory flexibility analyses, USCIS assumes filing organizations not
found in the Reference USA database are likely to be small entities and
in order not to underestimate the number of small entities impacted by
this rule, USCIS makes the conservative assumption to consider all of
these 379 non-matched entities as small entities for the purpose of
this analysis. Further, 52 of the 512 matched entities did not contain
revenue or employee count data. Additional Internet research allowed us
to classify all 52 as small entities: 5 small non-profit/small
governmental jurisdiction and 47 small businesses. Among the 512
matches, 336 were determined to be small entities based on their
revenue or employee count and their NAICS code. Combining non-matches
(379), small non-profit/governmental jurisdiction (22), matches missing
data (52), and small entity matches (336), enables us to classify 789
of 891 entities as small.
With an aggregated total of 789 out of a sample size of 891, DHS
inferred that a majority, or 88.6%, of the entities filing Form I-129
and Form I-140 petitions were small entities. Furthermore, 332 of the
891 searched were small entities with the sales revenue data needed in
order to estimate the economic impact of the proposed rule. Since these
332 were a small entity subset of the random sample of 891 searches,
they were statistically significant in the context of this research.
In order to calculate the economic impact of this rule, DHS
estimated the total costs associated with the proposed fee increase for
each entity, divided by sales revenue of that entity. For example, an
entity with $100,000 in sales revenue filed one Form I-129 and one Form
I-140. Based on the proposed fee increase of $35 for Form I-129 and
$155 for Form I-140, this would amount to a 0.19% economic impact on
the entity.\32\
—————————————————————————

\32\ Reference USA reports sales revenue for entities as a range
of values. For this analysis, DHS utilized the lower end of the
range in order to assure the potential economic impact of the
proposed rule was not underestimated. For example, if Reference USA
reported a filing organization had revenue between $500,000 and
$750,000, this analysis assumed the revenue was $500,000.
—————————————————————————

Among the 332 small entities with reported revenue data, all
experienced an economic impact considerably less than 1.0%. In fact,
using the above methodology, the greatest economic impact imposed by
this fee change totaled 0.19% and the smallest totaled 0.00002%. The
average impact on all 332 small entities with revenue data was 0.055%.
Finally, the impact on small entities was examined by looking at
each form separately. Since entities can file multiple forms, the
analysis considers exactly how many forms each entity submitted. For
example, an entity with $100,000 in sales revenue that filed four Form
I-129s would experience an economic impact of 0.14% of revenue; while
an entity with sales revenue of $500,000 filing three Form I-140s would
experience an economic impact of 0.093% All small entities filing Form
I-129s experienced an average impact of 0.0215% (range of impact from
0.000004% to 0.525%). Similarly, the average impact on filers of Form
I-140 of 0.0491% was also insignificant (range of impact from 0.00002%
to 0.155.
The evidence suggests that the additional fee imposed by this rule
does not represent a significant economic impact on these entities.
(b) Civil Surgeon Designation
USCIS estimates that it will receive a request for designation as a
civil surgeon from 1,160 doctors in both FY 2010 and FY 2011. According
to the Small Business Administration (SBA) Small Business Size
Regulations at 13 CFR part 121, offices of physicians (except mental
health professionals) are considered small entities when their annual
sales are less than $10 million. USCIS has no records on the average
annual revenue for the doctors registered as civil surgeons. For the
purposes of this analysis, it is assumed that they all have annual
gross revenue of under $10 million.\33\ Therefore, it is

[[Page 33480]]

estimated that approximately 1,200 individuals per year that would file
a request for designation as a civil surgeon would be affected by this
rule, with all of them being classified as small entities.
—————————————————————————

\33\ NAICS Code 62111. See U. S. Small Business Administration
Table of Small Business Size Standards Matched to North American
Industry Classification System Codes. http://www.sba.gov/idc/groups/
public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
—————————————————————————

The rule proposes to establish a processing fee of $615 for the
Civil Surgeon Program. This analysis utilized fees calculated without
any appropriated funds, resulting in a $665 fee for the Civil Surgeon
analysis.
To illustrate whether or not a rule could have a significant
impact, guidelines suggested by the SBA Office of Advocacy provide that
the cost of the proposed regulation may exceed one percent of the gross
revenues of the entities in a particular sector or five percent of the
labor costs of the entities in the sector.\34\
—————————————————————————

\34\ See SBA Office of Advocacy, A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act,
18,.available at: http://www.sba.gov/advo/laws/rfaguide.pdf.
—————————————————————————

According to the U.S. Department of Labor, Bureau of Labor
Statistics (BLS), Office of Occupational Employment Statistics, the
median annual wage for Family and General Practitioners is about
$161,490. Thus, the costs added by this rule are only 0.41 percent of
the salary costs for one doctor.\35\ As stated before, the average
total revenue of the civil surgeon is unknown. Nonetheless, for the new
$665 fee to exceed one percent of annual revenues, sales would be
required to be $66,500 per year or less.
—————————————————————————

\35\ $665 divided by $161,490.
—————————————————————————

USCIS believes that the costs of this rulemaking to small entities
would not exceed one percent of the gross revenues of the entities in
the affected sector. Using the average annual labor costs and the
percentage of the affected entities’ annual revenue stream as
guidelines, USCIS believes that the civil surgeon designation fee
proposed by this rule would not have a significant economic impact on a
substantial number of small entities.
(c) Application for Regional Center Under the Immigrant Investor Pilot
Program (Form I-924)
The Immigrant Investor Program, also known as EB-5, was created by
Congress in 1990 under 203(b)(5) of the Immigration and Nationality Act
(INA) to stimulate the U.S. economy through job creation and capital
investment by alien investors. Alien investors have the opportunity to
obtain lawful permanent residence in the United States for themselves,
their spouses, and their minor unmarried children by making a certain
level of capital investment and associated job creation or
preservation. There are two distinct EB-5 pathways for an alien
investor to gain lawful permanent residence: the Basic Program and the
Regional Center Pilot Program. Both programs require that the alien
investor make a capital investment of either $500,000 or $1,000,000
(depending on whether the investment is in a Targeted Employment Area
or not) in a new commercial enterprise located within the United
States.
USCIS proposes a $6,230 Immigrant Investor fee for entities
requesting approval and designation as a Regional Center under the
Immigrant Investor Pilot Program. The new application process will
require the same information from applicants that is currently
required, but will standardize/simplify the reporting format. This
analysis utilized fees calculated without any appropriated funds,
resulting in a $6,820 fee for the EB-5 Regional Center analysis.
DOS reports that 4,218 EB-5 visas were issued in 2009.\36\ USCIS
estimates that 1,687 of these are primary aliens (investors) and the
remainder are dependents.\37\ Typically, ninety percent of EB-5
investors participate in Regional Center-related projects, while the
others invest individually. Therefore, USCIS estimates FY 2009 Regional
Center investors at 1,518 aliens.\38\ As of October 1, 2009, there were
79 USCIS-approved Regional Centers, which equates to an average of 19.2
new investors per Regional Center in FY 2009.
—————————————————————————

\36\ http://www.travel.state.gov/visa/frvi/statistics/
statistics_4581.html.
\37\ 4,218/2.5 = 1,687 investors. USCIS estimates that 2.5 visas
are issued for each primary alien.
\38\ 90% x 1,687 = 1,518.
—————————————————————————

Each Regional Center receives a minimum investment from every alien
investor of $500,000. A search of Regional Center Web sites shows that
most charge each investor a “syndication fee” of $20,000 to
$50,000.\39\ Further, during the application process, Regional Centers
are required to provide a detailed statement regarding the amount and
source of non-alien capital and a description of the planned
promotional efforts. Combining the data, an average of 19.2 new
investors, each investing $500,000, leads to an average additional
investment per Regional Center of $9.6 million in FY 2009. While
Regional Centers are prohibited from using alien investments to pay for
overhead expenses, comparing FY 2009 average Regional Center investor
receipts to the $6,820 application fee provides a reasonable context in
which to consider the economic impact of the proposed fee. The proposed
Regional Center fee of $6,820 would represent only 0.07104% of the $9.6
million average additional investment per Regional Center in FY 2009.
The proposed application fee of $6,820 is only collected once and is
not a recurring fee.
—————————————————————————

\39\ Three exemplar Web sites are provided: http://
www.cmbeb5visa.com/faq_timeline.aspx; http://www.unyrc.com/
process.html; http://www.eb5dc.com/resources/CARc_AILA_Price_
Plan_2_25_10_Extension.pdf. Additionally, a list of USCIS
approved Regional Centers is available online at: http://
www.uscis.gov/eb-5centers.
—————————————————————————

The data indicates there are 79 approved Regional Centers in the
United States and its territories. An analysis of these 79 Regional
Centers shows 66 of these Regional Centers are owned by small
businesses and possibly one of these Regional Centers is owned by a
small non-profit organization. Consequently 67 of the existing 79
Regional Centers, or 85%, are small entities. Based on increased
interest in the EB-5 program, USCIS estimates at least 132 new Regional
Centers will be approved each year over the next two years. Since the
overwhelming majority of these Regional Centers are small entities, for
the purpose of this analysis, DHS will assume all 132 new Regional
Centers are small entities.
In summary, even though a significant number of these Regional
Centers are small entities, considering this proposed fee represents
only 0.07104% of the average additional investment per Regional Center
in FY 2009, DHS believes this $6,820 fee does not constitute a
significant economic impact on these entities. Nevertheless, DHS has
prepared an Initial Regulatory Flexibility Analysis, included it in the
proposed rule, and requests public comment on the impact of this rule
on small entities.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Types of Professional Skills
(a). Forms I-129 and I-140:
The proposed rule does not directly impose any new or additional
“reporting” or “recordkeeping” requirements on filers of Form I-
129. The proposed rule does not require any new professional skills for
reporting.
USCIS proposes to increase the fee for Petition for a Nonimmigrant
Worker (Form I-129) from $320 to $325, a $5 (1.5%) increase. USCIS
proposes to

[[Page 33481]]

increase the fee for Immigrant Petition for an Alien Worker (Form I-
140) from $475 to $580, a $105 (22%) increase. In order not to
underestimate the economic impact of this proposed rule on small
entities, this analysis uses a fee structure based on fees without
including appropriated funds. Therefore, the fees analyzed here are
Form I-129 at $355 ($35 increase) and Form I-140 at $630 ($155
increase).
In order to calculate the economic impact of this rule, DHS
estimated the total costs associated with the proposed fee increase for
each entity, divided by sales revenue of that entity. For example, an
entity with $100,000 in sales revenue filed one Form I-129 and one Form
I-140. Based on the proposed fee increase of $35 for Form I-129 and
$155 for Form I-140, this would amount to a 0.19% economic impact on
the entity.\40\
—————————————————————————

\40\ Reference USA reports sales revenue for entities as a range
of values. For this analysis, DHS utilized the lower end of the
range in order to assure the potential economic impact of the
proposed rule was not underestimated. For example, if Reference USA
reported a filing organization had revenue between $500,000 and
$750,000, this analysis assumed the revenue was $500,000.
—————————————————————————

Among the 332 small entities with reported revenue data, all
experienced an economic impact considerably less than 1.0%. In fact,
using the above methodology, the greatest economic impact imposed by
this fee change totaled 0.19% and the smallest totaled 0.00002%. The
average impact on all 332 small entities with revenue data was 0.055%.
Analyzed individually by form and weighted by the number of
petitions actually filed, the economic impact upon small entities was
also insignificant. All small entities filing I-129 experienced an
average impact of 0.0215% (range of impact from 0.000004% to 0.525%).
Similarly, the average weighted impact on filers of Form I-140 of
0.0491% was also insignificant (range of impact from 0.00002% to
0.155%). These results agree with the results of the combined sample.
(b) Civil Surgeon Designation:
The proposed rule does not directly impose any new or additional
“reporting” or “recordkeeping” requirements on filers of Form I-
129, Form I-140, or Civil Surgeon Designation. Also, the proposed rule
does not require any new professional skills for reporting. The rule
proposes to establish a processing fee of $615 for the Civil Surgeon
Program. This analysis utilized fees calculated without any
appropriated funds, resulting in a $665 fee for the Civil Surgeon
analysis.
To illustrate whether or not a rule could have a significant
impact, guidelines suggested by the SBA Office of Advocacy provide that
the cost of the proposed regulation may exceed one percent of the gross
revenues of the entities in a particular sector or five percent of the
labor costs of the entities in the sector.\41\
—————————————————————————

\41\ See SBA Office of Advocacy, A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act, 18,
available at: http://www.sba.gov/advo/laws/rfaguide.pdf.
—————————————————————————

According to the U.S. Department of Labor, Bureau of Labor
Statistics (BLS), Office of Occupational Employment Statistics, the
median annual wage for Family and General Practitioners is about
$161,490. Thus, the costs added by this rule are only 0.41 percent of
the salary costs for one doctor.\42\ As stated before, the average
total revenue of the civil surgeon is unknown. Nonetheless, for the new
$665 fee to exceed one percent of annual revenues, sales would be
required to be $66,500 per year or less.
—————————————————————————

\42\ $665 divided by $161,490.
—————————————————————————

Therefore, USCIS believes that the costs of this rulemaking to
small entities would not exceed one percent of the gross revenues of
the entities in the affected sector. Using both the average annual
labor costs and the percentage of the affected entities’ annual revenue
stream as guidelines, the evidence suggests that the civil surgeon
designation fee proposed by this rule would not have a significant
economic impact on a substantial number of small entities.
(c) Form I-924:
A standardized form and instructions for the filing of proposals
requesting the Regional Center designation does not currently exist.
The lack of a standardized form has resulted in confusion on the part
of the public regarding the specific documentation that is required in
order to meet the eligibility requirements. Applicants have not paid
any fees to cover costs associated with program activities. As a
result, costs have been paid by fee-paying applicants and petitioners
within the fee levels of other applications.
The new Form I-924, Application for Regional Center under the
Immigrant Investor Pilot Program, will serve the purpose of
standardizing requests for benefits and ensuring that the basic
information required to determine eligibility is provided by applicants
which will alleviate content inconsistencies among applicants’
submissions. Form I-924 will support a more efficient process for
adjudication of Regional Center proposals. Also, the proposed rule does
not require any new professional skills beyond those currently in
place.
USCIS proposes a $6,230 Immigrant Investor fee for entities
requesting approval and designation as a Regional Center under the
Immigrant Investor Pilot Program. The new application process will
require the same information from applicants that is currently
required, but will standardize/simplify the reporting format. This
analysis utilized fees calculated without any appropriated funds,
resulting in a $6,820 fee for the EB-5 Regional Center analysis.
DOS reports that 4,218 EB-5 visas were issued in 2009.\43\ USCIS
estimates that 1,687 of these are primary aliens (investors) and the
remainder are dependents.\44\ Typically, ninety percent of EB-5
investors participate in Regional Center-related projects, while the
others invest individually. Therefore, USCIS estimates FY 2009 Regional
Center investors at 1,518 aliens.\45\As of October 1, 2009, there were
79 USCIS-approved Regional Centers, which equates to an average of 19.2
new investors per Regional Center in FY 2009.
—————————————————————————

\43\ http://www.travel.state.gov/visa/frvi/statistics/
statistics_4581.html.
\44\ 4,218/2.5 = 1,687 investors. USCIS estimates that 2.5 visas
are issued for each primary alien.
\45\ 90% x 1,687 = 1,518.
—————————————————————————

Each Regional Center receives a minimum investment from every alien
investor of $500,000. A search of Regional Center Web sites shows that
most charge each investor a “syndication fee” of $20,000 to
$50,000.\46\ Further, during the application process, Regional Centers
are required to provide a detailed statement regarding the amount and
source of non-alien capital and a description of the planned
promotional efforts. Combining the data, an average of 19.2 new
investors, each investing $500,000, leads to an average additional
investment per Regional Center of $9.6 million in FY 2009. While
Regional Centers are prohibited from using alien investments to pay for
overhead expenses, comparing FY 2009 average Regional Center investor
receipts to the $6,820 application fee provides a reasonable context in
which to consider the economic impact of the proposed fee. The proposed
Regional Center fee of

[[Page 33482]]

$6,820 would represent only 0.07104% of the $9.6 million average
additional investment per Regional Center in FY 2009. The proposed
application fee of $6,820 is only collected once and is not a recurring
fee.
—————————————————————————

\46\ Three exemplar Web sites are provided: http://
www.cmbeb5visa.com/faq_timeline.aspx; http://www.unyrc.com/
process.html; http://www.eb5dc.com/resources/CARc_AILA_Price_
Plan_2_25_10_Extension.pdf. Additionally, a list of USCIS
approved Regional Centers is available online at: http://
www.uscis.gov/eb-5centers.
—————————————————————————

In summary, even though a significant number of these Regional
Centers are small entities, considering this proposed fee represents
only 0.07104% of the average additional investment per Regional Center
in FY 2009, DHS believes this $6,820 fee does not constitute a
significant economic impact on these entities. Nevertheless, DHS has
prepared an Initial Regulatory Flexibility Analysis, included it in the
proposed rule, and requests public comment on the impact of this rule
on small entities.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
DHS is unaware of any duplicative, overlapping, or conflicting
Federal rules. As noted below, DHS seeks comment and information about
any such rules.
6. Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and That
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities, Including Alternatives Considered Such as: (1) Establishment
of differing compliance or reporting requirements or timetables that
take into account the resources available to small entities; (2)
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) use
of performance rather than design standards; (4) any exemption from
coverage of the rule, or any part thereof, for such small entities
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including services provided without charge to
asylum applicants and certain other immigrant applicants. In addition,
DHS must fund the costs of providing services without charge by using a
portion of the filing fees that are collected for other immigration
benefits. Without an increase in fees, USCIS will not be able to
provide petitioners with the same level of service for immigration and
naturalization benefits. DHS has considered the alternative of
maintaining fees at the current level with reduced services and
increased wait times. While most immigration benefit fees apply to
individuals, as described above, some also apply to small entities.
USCIS seeks to minimize the impact on all parties, but in particular
small entities. An alternative to the increased economic burden of the
proposed rule is to maintain fees at their current level for small
entities. The strength of this alternative is that it assures no
additional fee-burden is placed on small entities; however, this
alternative also would cause negative impacts to small entities.
Without the fee adjustments proposed in this rule, significant
operational changes would be necessary. Given current filing volume and
other economic considerations, additional revenue is necessary to
prevent immediate and significant cuts in planned spending. These
spending cuts would include reductions in areas such as Federal and
contract staff, infrastructure spending on information technology and
facilities, travel, and training. Depending on the actual level of
workload received, these operational changes would result in longer
application processing times, a degradation in customer service, and
reduced efficiency over time. These cuts would ultimately represent an
increased cost to small entities by causing delays in benefit
processing and less customer service.
7. Questions for Comment To Assist Regulatory Flexibility Analysis
Please provide comment on the numbers of small entities
that may be impacted by this rulemaking.
Please provide comment on any or all of the provisions in
the proposed rule with regard to the economic impact of this rule,
paying specific attention to the effect of the rule on small entities
in light of the above analysis.
Please provide comment on any significant alternatives DHS
should consider in lieu of the changes proposed by this rule.
Please describe ways in which the rule could be modified
to reduce burdens for small entities consistent with the Immigration
and Nationality Act and the Chief Financial Officers Act requirements.
Please identify all relevant Federal, State or local rules
that may duplicate, overlap or conflict with the proposed rule.

B. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken before an agency promulgates any notice of
rulemaking “that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, local and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year.” 2 U.S.C. 1532(a). While this rule may
result in the expenditure of more than $100 million by the private
sector annually, the rulemaking is not a “Federal mandate” as defined
for UMRA purposes, 2 U.S.C. 658(6), as the payment of immigration
benefit fees by individuals or other private sector entities is, to the
extent it could be termed an enforceable duty, one that arises from
participation in a voluntary Federal program, applying for immigration
status in the United States. 2 U.S.C. 658(7)(A)(ii). Therefore, no
actions were deemed necessary under the provisions of the UMRA.

C. Small Business Regulatory Enforcement Fairness Act

This rulemaking is a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rulemaking will
result in an annual effect on the economy of more than $100 million, in
order to generate the revenue necessary to fully fund the increased
cost associated with the processing of immigration benefit applications
and petitions and associated support benefits; the full cost of
providing similar benefits to asylum and refugee applicants; and the
full cost of similar benefits provided to other immigrants, as
specified in the proposed regulation, at no charge. The increased costs
will be recovered through the fees charged for various immigration
benefit applications.

D. Executive Order 12866

This rule is considered by the Department of Homeland Security to
be an economically significant regulatory action under Executive Order
12866, section 3(f)(1), Regulatory Planning and Review. Accordingly,
this rule has been reviewed by the Office of Management and Budget.
The implementation of this rule would provide USCIS with an average
of $209 million in FY 2010 and FY 2011 annual fee revenue, based on a
projected annual fee-paying volume of 4.4 million immigration benefit
requests and 1.9 million requests for biometric services, over the fee
revenue that would be collected under the current fee structure. This
increase in revenue will be used pursuant to subsections 286(m) and (n)
of the INA, 8 U.S.C. 1356(m) and (n), to fund the full costs of
processing immigration benefit applications and associated support
benefits; the full cost of providing similar benefits to asylum

[[Page 33483]]

and refugee applicants; and the full cost of similar benefits provided
to others at no charge.
If USCIS does not adjust the current fees to recover the full costs
of processing immigration benefit requests, USCIS would be forced to
enact additional significant spending reductions resulting in a
reversal of the considerable progress it has made over the last several
years to reduce the backlogs of immigration benefit filings, to
increase the integrity of the immigration benefit system, and to
protect national security and public safety. The revenue increase is
based on USCIS costs and projected volumes that were available at the
time the rule was drafted. USCIS has placed in the rulemaking docket a
detailed analysis that explains the basis for the annual fee increase
and has included an accounting statement detailing the annualized costs
of the proposed rule below.
[GRAPHIC] [TIFF OMITTED] TP11JN10.024

E. Executive Order 13132

This rulemaking 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 section 6
of Executive Order 13132, the Department of Homeland Security has
determined that this rulemaking does not have sufficient Federalism
implications to warrant the preparation of a federalism summary impact
statement.

F. Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB,
for review and approval, any reporting or recordkeeping requirements
inherent in a rule. Accordingly, DHS is requesting comments on two
information collections for 60-days until August 10, 2010. Comments on
these information collections should address one or more of the
following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency’s estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Information Collection: Immigration Investor Pilot Program
DHS proposes to require the use of new Form I-924, Application for
Regional Center under the Immigrant Investor Pilot Program, and Form I-
924A, Supplement to Form I-924. This form is considered an information
collection and is covered under the Paperwork Reduction Act.
a. Type of information collection: New information collection.
b. Abstract: This collection will be used by individuals and
businesses to file a request for USCIS approval and designation as a
regional center on behalf of an entity under the Immigrant Investor
Pilot Program.
c. Title of Form/Collection: Application for Regional Center under
the Immigrant Investor Pilot Program.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-924
and Form 924A; U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Individuals and businesses.
f. An estimate of the total number of respondents: 132 respondents
filing Form I-924, and 116 respondents filing Form I-924A.
g. Hours per response: Form I-924 at 40 hours per response, and
Form I-924A at 3 hours per response.
h. Total Annual Reporting Burden: 4,428 hours.
Overview of Information Collection: Civil Surgeons Fee
This rule proposes a fee for applying for a civil surgeon
designation. To apply for a civil surgeon designation, USCIS requires a
civil surgeon submit the following information:
A letter to the District Director requesting
consideration,
A copy of a current medical license (in the State in which
the physician seeks to complete immigration medical examinations),
A current resume that shows at least 4 years of
professional experience (not including residency or medical school),
and
Two signature cards showing the physician’s name and
signature.
This information collection is required to determine whether a
physician meets the statutory and regulatory requirement for civil
surgeon designation. For example, all documents are reviewed to
determine whether the physician has a currently valid medical license
and whether the physician has had any action taken against him or her
by the medical licensing authority of the State. If the civil surgeon
designation request is accepted, the physician is

[[Page 33484]]

included in USCIS’ Civil Surgeon locator and is authorized to complete
Form I-693 for an applicant’s adjustment of status.
a. Type of information collection: New information collection.
b. Abstract: This information collection is required to determine
whether a physician meets the statutory and regulatory requirement for
civil surgeon designation.
c. Title of Form/Collection: Application for Civil Surgeon
Designation Registration.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: No form
number; U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Individuals and businesses.
f. An estimate of the total number of respondents: 1,200
respondents.
g. Hours per response: One hour.
h. Total Annual Reporting Burden: 1,200 hours.
Comments concerning these collections and forms can be submitted to
the Department of Homeland Security, USCIS, Chief, Regulatory Products
Division, Clearance Office, 111 Massachusetts Avenue, NW., Washington,
DC 20529-2210.
The changes to the proposed fees will require minor amendments to
immigration benefit and petition forms to reflect the new fees. The
necessary changes to the annual cost burden and to the forms will be
submitted to OMB using OMB Form 83-C, Correction Worksheet, when this
proposed rule is submitted to OMB as a final rule.

List of Subjects

8 CFR Part 103

Administrative practice and procedures; Authority delegations
(government agencies); Freedom of Information; Privacy; Reporting and
recordkeeping requirements; and Surety bonds.

8 CFR Part 204

Administrative practice and procedure; Immigration; Reporting and
recordkeeping requirements.

8 CFR Part 244

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:

PART 103–POWERS AND DUTIES; AVAILABILITY OF RECORDS

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

Authority: 5 U.S.C. 301, 552, 552(a); 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p.166;
8 CFR part 2.
Sec. 103.2 [Amended]

2. Section 103.2 is amended by:
a. Removing paragraph (e)(4)(ii);
b. Redesignating paragraphs (e)(4)(iii), and (e)(4)(iv), as
paragraphs (e)(4)(ii), and (e)(4)(iii), respectively; and by
c. Removing paragraph (f).
3. Section 103.7 is amended by:
a. Revising paragraphs (b) and (c);
b. Redesignating paragraph (d) as paragraph (f);
c. Adding new paragraphs (d) and (e); and by
d. Revising newly redesignated paragraph (f).
The revisions and additions read as follows:
Sec. 103.7 Fees.

* * * * *
(b) Amounts of fees. (1) Prescribed fees and charges. (i) USCIS
fees. A request for immigration benefits submitted to USCIS must
include the required fee as prescribed under this section. The fees
prescribed in this section are associated with the benefit, the
adjudication, and the type of request and not solely determined by the
form number listed below. The term “form” as defined in 8 CFR part 1,
may include a USCIS-approved electronic equivalent of such form as
USCIS may prescribe on its official Web site at http//www.uscis.gov.
(A) Certification of true copies: $2.00 per copy.
(B) Attestation under seal: $2.00 each.
(C) Biometric services (Biometric Fee). For capturing, storing, and
using biometric information (Biometric Fee). A service fee of $85 will
be charged for any individual who is required to have biometric
information captured, stored, and used in connection with an
application or petition for certain immigration and naturalization
benefits (other than asylum), whose application fee does not already
include the charge for biometric services. No biometric service fee is
charged when:
(1) A written request for an extension of the approval period is
received by USCIS prior to the expiration date of approval of an
Application for Advance Processing of Orphan Petition, if a Petition to
Classify Orphan as an Immediate Relative has not yet been submitted in
connection with an approved Application for Advance Processing of
Orphan Petition. This extension without fee is limited to one occasion.
If the approval extension expires prior to submission of an associated
Petition to Classify Orphan as an Immediate Relative, then a complete
application and fee must be submitted for a subsequent application.
(2) There is no fee for the associated benefit request that was, or
is, being submitted.
(D) Immigrant visas. For processing immigrant visas issued by the
Department of State in embassies or consulates: $165.
(E) Request for a search of indices to historical records to be
used in genealogical research (Form G-1041): $20. The search fee is not
refundable.
(F) Request for a copy of historical records to be used in
genealogical research (Form G-1041A): $20 for each file copy from
microfilm, or $35 for each file copy from a textual record. In some
cases, the researcher may be unable to determine the fee, because the
researcher will have a file number obtained from a source other than
USCIS and therefore not know the format of the file (microfilm or hard
copy). In this case, if USCIS locates the file and it is a textual
file, USCIS will notify the researcher to remit the additional $15.
USCIS will refund the records request fee only when it is unable to
locate the file previously identified in response to the index search
request.
(G) Application to Replace Permanent Resident Card (Form I-90). For
filing an application for a Permanent Resident Card (Form I-551) in
lieu of an obsolete card or in lieu of one lost, mutilated, or
destroyed, or for a change in name: $365.
(H) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document (Form I-102). For filing a petition for an
application for Arrival/Departure Record (Form I-94) or Crewman’s
Landing Permit (Form I-95), in lieu of one lost, mutilated, or
destroyed: $330.
(I) Petition for a Nonimmigrant Worker (Form I-129). For filing a
petition for a nonimmigrant worker: $325.
(J) Petition for Nonimmigrant Worker in CNMI (Form I-129CW). For an
employer to petition on behalf of one or more beneficiaries: $325 plus
a supplemental CNMI education funding fee of $150 per beneficiary per
year. The

[[Page 33485]]

CNMI education funding fee cannot be waived.
(K) Petition for Alien Fianc[eacute](e) (Form I-129F). For filing a
petition to classify a nonimmigrant as a fianc[eacute]e or
fianc[eacute] under section 214(d) of the Act: $340; there is no fee
for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the
beneficiary of an immigrant petition filed by a United States citizen
on a Petition for Alien Relative (Form I-130).
(L) Petition for Alien Relative (Form I-130). For filing a petition
to classify status of an alien relative for issuance of an immigrant
visa under section 204(a) of the Act: $420.
(M) Application for Travel Document (Form I-131). For filing an
application for travel document: $360. There is no fee for filing for a
Refugee Travel Document or advance parole if filed in conjunction with
a pending or concurrently filed Form I-485 with fee that was filed on
or after July 30, 2007.
(N) Immigrant Petition for Alien Worker (Form I-140). For filing a
petition to classify preference status of an alien on the basis of
profession or occupation under section 204(a) of the Act: $580.
(O) Application for Advance Permission to Return to Unrelinquished
Domicile (Form I-191). For filing an application for discretionary
relief under section 212(c) of the Act: $585.
(P) Application for Advance Permission to Enter as a Nonimmigrant
(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: $585.
(Q) Application for Waiver for Passport and/or Visa (Form I-193).
For filing an application for waiver of passport and/or visa: $585.
(R) Application for Permission to Reapply for Admission into the
United States After Deportation or Removal (Form I-212). For filing an
application for permission to reapply for an excluded, deported or
removed alien, an alien who has fallen into distress, an alien who has
been removed as an alien enemy, or an alien who has been removed at
government expense in lieu of deportation: $585.
(S) Notice of Appeal or Motion (Form I-290B). For appealing a
decision under the immigration laws in any type of proceeding over
which the Board of Immigration Appeals does not have appellate
jurisdiction: $630. The fee will be the same for appeal of a denial of
a benefit request with one or multiple beneficiaries.
(T) Petition for Amerasian, Widow(er), or Special Immigrant (Form
I-360). For filing a petition for an Amerasian, Widow(er), or Special
Immigrant: $405. The following requests are exempt from this fee:
(1) A petition seeking classification as an Amerasian;
(2) A self-petitioning battered or abused spouse, parent, or child
of a United States citizen or lawful permanent resident; or
(3) A Special Immigrant Juvenile.
(4) An Iraqi national who worked for or on behalf of the U.S.
Government in Iraq.
(U) Application to Register Permanent Residence or Adjust Status
(Form I-485). For filing an application for permanent resident status
or creation of a record of lawful permanent residence:
(1) $985 for an applicant 14 years of age or older; or
(2) $635 for an applicant under the age of 14 years when it is:
(i) Submitted concurrently for adjudication with the Form I-485 of
a parent;
(ii) The applicant is seeking to adjust status as a derivative of
his or her parent; and
(iii) The child’s application is based on them being a close
relative of the same individual who is the basis for the child’s
parent’s adjustment of status..
(3) There is no fee if an applicant is filing as a refugee under
section 209(a) of the Act.
(V) Application To Adjust Status under Section 245(i) of the Act
(Supplement A to Form I-485). Supplement to Form I-485 for persons
seeking to adjust status under the provisions of section 245(i) of the
Act: $1,000. There is no fee when the applicant is an unmarried child
less than 17 years of age, or when the applicant is the spouse, or the
unmarried child less than 21 years of age of a legalized alien and who
is qualified for and has applied for voluntary departure under the
family unity program.
(W) Immigrant Petition by Alien Entrepreneur (Form I-526). For
filing a petition for an alien entrepreneur: $1,500.
(X) Application To Extend/Change Nonimmigrant Status (Form I-539).
For filing an application to extend or change nonimmigrant status:
$290.
(Y) Petition To Classify Orphan as an Immediate Relative (Form I-
600). For filing a petition to classify an orphan as an immediate
relative for issuance of an immigrant visa under section 204(a) of the
Act. Only one fee is required when more than one petition is submitted
by the same petitioner on behalf of orphans who are brothers or
sisters: $720.
(Z) Application for Advance Processing of Orphan Petition (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.): $720. No fee is charged if Form I-600 has not
yet been submitted in connection with an approved Form I-600A subject
to the following conditions:
(1) The applicant requests an extension of the approval in writing
and the request is received by USCIS prior to the expiration date of
approval.
(2) The applicant’s home study is updated and USCIS determines that
proper care will be provided to an adopted orphan.
(3) A no fee extension is limited to one occasion. If the Form I-
600A approval extension expires prior to submission of an associated
Form I-600, then a complete application and fee must be submitted for
any subsequent application.
(AA) Application for Waiver of Ground of Inadmissibility (Form I-
601). For filing an application for waiver of grounds of
inadmissibility: $585.
(BB) Application for Waiver of the Foreign Residence Requirement
(Under Section 212(e) of the Immigration and Nationality Act, as
Amended) (Form I-612). For filing an application for waiver of the
foreign-residence requirement under section 212(e) of the Act: $585.
(CC) Application for Status as a Temporary Resident Under Section
245A of the Immigration and Nationality Act (Form I-687). For filing an
application for status as a temporary resident under section 245A(a) of
the Act: $1,130.
(DD) Application for Waiver of Grounds of Inadmissibility Under
Sections 245A or 210 of the Immigration and Nationality Act (Form I-
690). For filing an application for waiver of a ground of
inadmissibility under section 212(a) of the Act as amended, in
conjunction with the application under sections 210 or 245A of the Act,
or a petition under section 210A of the Act: $200.
(EE) Notice of Appeal of Decision Under Sections 245A or 210 of the
Immigration and Nationality Act (or a Petition Under Section 210A of
the Act) (Form I-694). For appealing the denial of an application under
sections 210 or 245A of the Act, or a petition under section 210A of
the Act: $755.
(FF) Petition To Remove the Conditions of Residence Based on
Marriage (Form I-751). For filing a petition to remove the conditions
on residence based on marriage: $505.

[[Page 33486]]

(GG) Application for Employment Authorization (Form I-765). $380;
no fee if filed in conjunction with a pending or concurrently filed
Form I-485 with fee that was filed on or after July 30, 2007.
(HH) Petition To Classify Convention Adoptee as an Immediate
Relative (Form I-800).
(1) There is no fee for the first Form I-800 filed for a child on
the basis of an approved Application for Determination of Suitability
To Adopt a Child from a Convention Country (Form I-800A) during the
approval period.
(2) If more than one Form I-800 is filed during the approval period
for different children, the fee is $720 for the second and each
subsequent petition submitted.
(3) If the children are already siblings before the proposed
adoption, however, only one filing fee of $720 is required, regardless
of the sequence of submission of the immigration benefit.
(II) Application for Determination of Suitability To Adopt a Child
From a Convention Country (Form I-800A). For filing an application for
determination of suitability to adopt a child from a Convention
country: $720.
(JJ) Request for Action on Approved Application for Determination
of Suitability To Adopt a Child From a Convention Country (Form I-800A,
Supplement 3). This filing fee is not charged if Form I-800 has not
been filed based on the approval of the Form I-800A, and Form I-800A
Supplement 3 is filed in order to obtain a first extension of the
approval of the Form I-800A: $360.
(KK) Application for Family Unity Benefits (Form I-817). For filing
an application for voluntary departure under the Family Unity Program:
$435.
(LL) Application for Temporary Protected Status (Form I-821). For
first time applicants: $50. There is no fee for re-registration.
(MM) Application for Action on an Approved Application or Petition
(Form I-824). For filing for action on an approved application or
petition: $405.
(NN) Petition by Entrepreneur To Remove Conditions (Form I-829).
For filing a petition by entrepreneur to remove conditions: $3,750.
(OO) Application for suspension of deportation or special rule
cancellation of removal (pursuant to section 203 of Pub. L. 105-100)
(Form I-881):
(1) $285 for adjudication by the Department of Homeland Security,
except that the maximum amount payable by family members (related as
husband, wife, unmarried child under 21, unmarried son, or unmarried
daughter) who submit applications at the same time shall be $570.
(2) $165 for adjudication by the Immigration Court (a single fee of
$165 will be charged whenever applications are filed by two or more
aliens in the same proceedings). (3) The $165 fee is not required if
the Form I-881 is referred to the Immigration Court by the Department
of Homeland Security.
(PP) Application for authorization to issue certification for
health care workers (Form I-905): $230.
(QQ) Request for Premium Processing Service (Form I-907). The fee
must be paid in addition to, and in a separate remittance from, other
filing fees. The request for premium processing fee will be adjusted
annually by notice in the Federal Register based on inflation according
to the Consumer Price Index (CPI). The fee to request premium
processing: $1,225. The fee for Premium Processing Service may not be
waived.
(RR) Civil Surgeon Designation. For filing an application for civil
surgeon designation: $615.
(SS) Application for Regional Center under the Immigrant Investor
Pilot Program (Form I-924). For filing an application for regional
center under the Immigrant Investor Pilot Program: $6,230.
(TT) Petition for Qualifying Family Member of a U-1 Nonimmigrant
(Form I-929). For U-1 principal applicant to submit for each qualifying
family member who plans to seek an immigrant visa or adjustment of U
status: $215.
(UU) Application to File Declaration of Intention (Form N-300). For
filing an application for declaration of intention to become a U.S.
citizen: $250.
(VV) Request for a Hearing on a Decision in Naturalization
Proceedings (Under Section 336 of the Act) (Form N-336). For filing a
request for hearing on a decision in naturalization proceedings under
section 336 of the Act: $650.
(WW) Application for Naturalization (Form N-400). For filing an
application for naturalization (other than such application filed on or
after October 1, 2004, by an applicant who meets the requirements of
sections 328 or 329 of the Act with respect to military service, for
which no fee is charged): $595.
(XX) Application to Preserve Residence for Naturalization Purposes
(Form N-470). For filing an application for benefits under section
316(b) or 317 of the Act: $330.
(YY) Application for Replacement Naturalization/Citizenship
Document (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(c) 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(b) of the Act: $345.
(ZZ) Application for Certificate of Citizenship (Form N-600). For
filing an application for a certificate of citizenship under section
309(c) or section 341 of the Act for applications filed on behalf of a
biological child: $600. For applications filed on behalf of an adopted
child: $550.
(AAA) Application for Citizenship and Issuance of Certificate under
Section 322 (Form N-600K). For filing an application for citizenship
and issuance of certificate under section 322 of the Act: $600, for an
application filed on behalf of a biological child and $550 for an
application filed on behalf of an adopted child.
(ii) Other DHS immigration fees. The following fees are applicable
to one or more of the immigration components of DHS:
(A) DCL System Costs Fee. For use of a Dedicated Commuter Lane
(DCL) located at specific Ports of Entry of the United States by an
approved participant in a designated vehicle: $80.00, with the maximum
amount of $160.00 payable by a family (husband, wife, and minor
children under 18 years-of-age). Payable following approval of the
application but before use of the DCL by each participant. This fee is
non-refundable, but may be waived by the district director. If a
participant wishes to enroll more than one vehicle for use in the
PORTPASS system, he or she will be assessed with an additional fee of:
$42 for each additional vehicle enrolled.
(B) Form I-17. For filing a petition for school certification:
$1,700, plus a site visit fee of $655 for each location listed on the
form.
(C) Form I-68. For application for issuance of the Canadian Border
Boat Landing Permit under section 235 of the Act: $16.00. The maximum
amount payable by a family (husband, wife, unmarried children under 21
years of age, parents of either husband or wife) shall be $32.00.
(D) Form I-94. For issuance of Arrival/Departure Record at a land
border Port-of-Entry: $6.00.
(E) Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border Port-of-Entry under section 217 of the
Act: $6.00.
(F) Form I-246. For filing application for stay of deportation
under part 243 of this chapter: $155.00.

[[Page 33487]]

(G) Form I-570. For filing application for issuance or extension of
refugee travel document: $45.00
(H) Form I-823. For application to a PORTPASS program under section
286 of the Act–$25.00, with the maximum amount of $50.00 payable by a
family (husband, wife, and minor children under 18 years of age). The
application fee may be waived by the district director. If fingerprints
are required, the inspector will inform the applicant of the current
Federal Bureau of Investigation fee for conducting fingerprint checks
prior to accepting the application fee. Both the application fee (if
not waived) and the fingerprint fee must be paid to CBP before the
application will be processed. The fingerprint fee may not be waived.
For replacement of PORTPASS documentation during the participation
period: $25.00.
(I) Form I-901. For remittance of the I-901 SEVIS fee for F and M
students: $200. For remittance of the I-901 SEVIS fee for certain J
exchange visitors: $180. For remittance of the I-901 SEVIS fee for J-1
au pairs, camp counselors, and participants in a summer work/travel
program: $35. There is no I-901 SEVIS fee remittance obligation for J
exchange visitors in Federally-funded programs with a program
identifier designation prefix that begins with G-1, G-2, G-3 or G-7.
(J) Special statistical tabulations–a charge will be made to cover
the cost of the work involved: DHS Cost.
(K) Set of monthly, semiannual, or annual tables entitled
“Passenger Travel Reports via Sea and Air”: $7.00. Available from
DHS, then Immigration & Naturalization Service, for years 1975 and
before. Later editions are available from the United States Department
of Transportation, contact: United States Department of Transportation,
Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
(L) Classification of a citizen of Canada to be engaged in business
activities at a professional level pursuant to section 214(e) of the
Act (Chapter 16 of the North American Free Trade Agreement): $50.00.
(M) Request for authorization for parole of an alien into the
United States: $65.00.
(iii) Fees for copies of records. Fees for production or disclosure
of records under 5 U.S.C. 552 shall be charged in accordance with the
regulations of the Department of Homeland Security at 6 CFR 5.11.
(iv) Adjustment to fees. The fees prescribed in paragraph (b)(1)(i)
of this section may be adjusted annually by publication of an inflation
adjustment. The inflation adjustment will be announced by a publication
of a notice in the Federal Register. The adjustment shall be a
composite of the Federal civilian pay raise assumption and non-pay
inflation factor for that fiscal year issued by the Office of
Management and Budget for agency use in implementing OMB Circular A-76,
weighted by pay and non-pay proportions of total funding for that
fiscal year. If Congress enacts a different Federal civilian pay raise
percentage than the percentage issued by OMB for Circular A-76, the
Department of Homeland Security may adjust the fees, during the current
year or a following year to reflect the enacted level. The prescribed
fee or charge shall be the amount prescribed in paragraph (b)(1)(i) of
this section, plus the latest inflation adjustment, rounded to the
nearest $5 increment.
(v) Fees for immigration court and Board of Immigration Appeals.
Fees for proceedings before immigration judges and the Board of
Immigration Appeals are provided in 8 CFR 1103.7.
(c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary
waiver of the fees provided in paragraph (b)(1)(i) of this section are
limited as follows:
(i) The party requesting the benefit is unable to pay the
prescribed fee.
(ii) A waiver based on inability to pay is consistent with the
status or benefit being sought including requests that require
demonstration of the applicant’s ability to support himself or herself,
or individuals who seek immigration status based on a substantial
financial investment.
(2) Requesting a fee waiver. To request a fee waiver, a person
requesting an immigration benefit must submit a written request for
permission to have their request processed without payment of a fee
with their benefit request. The request must state the person’s belief
that he or she is entitled to or deserving of the benefit requested,
the reasons for his or her inability to pay, and evidence to support
the reasons indicated. There is no appeal of the denial of a fee waiver
request.
(3) USCIS fees that may be waived. No fee relating to any
application, petition, appeal, motion, or request made to U.S.
Citizenship and Immigration Services may be waived except for the
following:
(i) Biometric Fee,
(ii) Application to Replace Permanent Resident Card;
(iii) Petition for a CNMI-Only Nonimmigrant Transitional Worker,
(iv) Application for Advance Permission to Return to Unrelinquished
Domicile,
(v) Notice of Appeal or Motion,
(vi) Application for Employment Authorization,
(vii) Application for Family Unity Benefits
(viii) Application for Temporary Protected Status,
(ix) Application to File Declaration of Intention, Request for a
Hearing on a Decision in Naturalization Proceedings (Under Section 336
of the INA),
(x) Application for Naturalization,
(xi) Application to Preserve Residence for Naturalization Purposes.
(xii) Application for Replacement Naturalization/Citizenship
Document,
(xiii) Application for Certificate of Citizenship, and
(xiv) Application for Citizenship and Issuance of Certificate under
Section 322.
(4) The following fees may be waived only in the case of an alien
in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) of
the Act; an applicant under section 209(b) of the Act; an approved VAWA
self-petitioner; or an alien to whom section 212(a)(4) of the Act does
not apply with respect to adjustment of status:
(i) Application for Advance Permission to Enter as Nonimmigrant;
(ii) Application for Waiver for Passport and/or Visa;
(iii) Application to Register Permanent Residence or Adjust Status;
(iv) Application for Waiver of Grounds of Inadmissibility.
(5) Immigration Court fees. The provisions relating to the
authority of the immigration judges or the Board to waive fees
prescribed in paragraph (b) of this section in cases under their
jurisdiction can be found at 8 CFR 1003.8 and 1003.24.
(6) Fees under the Freedom of Information Act (FOIA). FOIA fees may
be waived or reduced if DHS determines that such action would be in the
public interest because furnishing the information can be considered as
primarily benefiting the general public.
(d) Exceptions and exemptions. The Director of USCIS may approve
and suspend exemptions from any fee required by paragraph (b)(1)(i) of
this section or provide that the fee may be waived for a case or
specific class of cases that is not otherwise provided in this section,
if the Director determines that such action would be in the public
interest, and the action is consistent with other applicable law. This
discretionary authority will not be delegated to any official other
than the USCIS Deputy Director.
(e) Premium processing service. A person submitting a request to
USCIS may request 15 calendar day processing of certain employment-
based immigration benefit requests.

[[Page 33488]]

(1) Submitting a request for premium processing. A request for
premium processing must be submitted on the form prescribed by USCIS,
including the required fee, and submitted to the address specified on
the form instructions.
(2) 15-day limitation. The 15 calendar day processing period begins
when USCIS receives the request for premium processing accompanied by
an eligible employment-based immigration benefit request.
(i) If USCIS cannot reach a final decision on a request for which
premium processing was requested, as evidenced by an approval notice,
denial notice, a notice of intent to deny, or a request for evidence,
USCIS will refund the premium processing service fee, but continue to
process the case.
(ii) USCIS may retain the premium processing fee and not reach a
conclusion on the request within 15 days, and not notify the person who
filed the request, if USCIS opens an investigation for fraud or
misrepresentation relating to the benefit request.
(3) Requests eligible for premium processing.
(i) USCIS will designate the categories of employment-related
benefit requests that are eligible for premium processing.
(ii) USCIS will announce by its official Internet Web site,
currently http://www.uscis.gov, those requests for which premium
processing may be requested, the dates upon which such availability
commences and ends, and any conditions that may apply.
(f) Authority to certify records. The Director of USCIS or such
officials as he or she may designate, may certify records when
authorized under 5 U.S.C. 552 or any other law to provide such records.

PART 204–IMMIGRANT PETITIONS

4. The authority citation for part 204 continues to read as
follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1641; 8 CFR part 2.

5. Section 204.6 is amended by revising paragraph (m)(6) to read as
follows:
Sec. 204.6 Petitions for employment creation aliens.

* * * * *
(m) * * *
(6) Termination of participation of regional centers. To ensure
that regional centers continue to meet the requirements of section
610(a) of the Appropriations Act, a regional center must provide USCIS
with updated information to demonstrate the regional center is
continuing to promote economic growth, improved regional productivity,
job creation, or increased domestic capital investment in the approved
geographic area. Such information must be submitted to USCIS on an
annual basis, on a cumulative basis, and/or as otherwise requested by
USCIS, using a form designated for this purpose. USCIS will issue a
notice of intent to terminate the participation of a regional center in
the pilot program if a regional center fails to submit the required
information or upon a determination that the regional center no longer
serves the purpose of promoting economic growth, including increased
export sales, improved regional productivity, job creation, and
increased domestic capital investment. The notice of intent to
terminate shall be made upon notice to the regional center and shall
set forth the reasons for termination. The regional center must be
provided thirty days from receipt of the notice of intent to terminate
to offer evidence in opposition to the ground or grounds alleged in the
notice of intent to terminate. If USCIS determines that the regional
center’s participation in the Pilot Program should be terminated, USCIS
shall notify the regional center of the decision and of the reasons for
termination. The regional center may appeal the decision within thirty
days after the service of notice to the USCIS as provided in 8 CFR
103.3.
* * * * *

PART 244–TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES

4. The authority citation for part 244 continues to read as
follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
Sec. 244.20 [Removed]

5. Section 244.20 is removed.

PART 274a–CONTROL OF EMPLOYMENT OF ALIENS

6. The authority citation for part 274a continues to read as
follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law
110-229; 8 CFR part 2.
7. Section 274a.12 is amended by revising paragraphs (a)(8) and
(a)(11) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.

(a) * * *
(8) An alien admitted to the United States as a nonimmigrant
pursuant to the Compact of Free Association between the United States
and of the Federated States of Micronesia, the Republic of the Marshall
Islands, or the Republic of Palau;
* * * * *
(11) An alien whose enforced departure from the United States has
been deferred in accordance with a directive from the President of the
United States to the Secretary. Employment is authorized for the period
of time and under the conditions established by the Secretary pursuant
to the Presidential directive;
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2010-13991 Filed 6-9-10; 8:45 am]
BILLING CODE 9111-97-P

Call Now Button