[Federal Register: August 8, 2001 (Volume 66, Number 153)]
[Proposed Rules]
[Page 41456-41462]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au01-10]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 41456]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 103
[INS No. 2072-00; AG Order No. 2497-2001]
RIN 1115-AF61
Adjustment of Certain Fees of the Immigration Examinations Fee
Account
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to adjust the fee schedule of the
Immigration Examinations Fee Account (IEFA) for certain immigration and
naturalization applications and petitions, as well as the fee for the
fingerprinting of applicants who apply for certain immigration and
naturalization benefits. Fees collected from persons filing these
applications and petitions are deposited into the IEFA and used to fund
the full cost of processing immigration and naturalization 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 regulation, at no charge. The proposed fees will allow
the Service to process applications and petitions that it expects to
receive in 2002 and 2003, and provide funding to other programs
supported by IEFA.
DATES: Written comments must be submitted on or before October 9, 2001.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC, 20536. To ensure
proper handling, please reference INS Number 2072-00 on your
correspondence. The public may also submit comments electronically at
insregs@usdoj.gov. When submitting comments electronically, please
include INS No. 2072-00 in the subject box. Comments are available for
public inspection at the above address by calling (202) 514-3048 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Immigration
Services Branch, Office of Budget, Immigration and Naturalization
Service, 425 I Street NW., Room 5307, Washington, DC 20536, telephone
(202) 314-3410.
SUPPLEMENTARY INFORMATION:
What Legal Authority Does the Service Have To Charge Fees?
A. Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriation Acts of 1989 and 1991
With reference to the fees for applications and petitions, the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriation Act, 1989, Pub. L. No. 100-459, Sec. 209, 102
Stat. 2186, 2203 (1988) authorized the Immigration and Naturalization
Service (Service) to prescribe and collect fees to recover the cost of
providing certain immigration and naturalization benefits. That law
also authorized the establishment of the IEFA in the Treasury of the
United States. All revenue from fees collected for immigration and
naturalization benefits are deposited in the IEFA and remain available
to provide immigration and naturalization benefits and the collection,
safeguarding and accounting for fees. 8 U.S.C. 1356(n).
In subsequent legislation, the Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations Act,
1991, Pub. L. No. 101-515, Sec. 210(d), 104 Stat. 2101, 2121 (1990),
Congress further provided 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.'' 8 U.S.C. 1356(m).
The House Conference Report to the bill entitled, ``Making
Appropriations for the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies For the Fiscal Year Ending September
30, 1996, and For Other Purposes,'' H.R. Conf. Rep. No. 104-378, at 82
(1995), directs the Service to fund the cost of the Cuban-Haitian
Entrant Program from the IEFA. The Report states, ``(t)he conferees
have also agreed that the activities related to the resettlement of
Cubans and Haitians should be transferred to the * * * Service and that
the costs of these activities should be supported by the [IEFA].'' Id.
With reference to the fingerprint fee, the Department of Justice
Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2448
(1997), required the Service, with limited exceptions, to prepare all
fingerprint cards used to conduct FBI criminal background checks on
individuals applying for certain benefits under the Immigration and
Nationality Act of 1952, as amended (Act). This legislation also
authorized the Service to charge a fee for this fingerprinting service.
Id. The Service deposits this fee into the IEFA established by 8 U.S.C.
1356(m)-(p). On March 29, 1998, the Service began charging $25 for the
fingerprinting service.
B. The Independent Offices Appropriation Act, 1952
The Service also employs the authority granted by the Independent
Offices Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701, commonly
referred to as the ``user fee statute,'' to develop its fees. The user
fee statute directs Federal agencies to identify services provided to
unique segments of the population and to charge fees for those
services, rather than supporting such services through general tax
revenues. The IOAA states that ``[i]t is the sense of Congress that
each service or thing of value provided by an agency * * * to a person
* * * is to be self-sustaining to the extent possible.'' 31 U.S.C.
9701(a).
The IOAA further provides that charges for such services or things
of value should be fair and based on ``(A) the costs to the Government;
(B) the value of the service or thing to the recipient; (C) the public
policy or interest served; and (D) other relevant facts.'' 31 U.S.C.
9701(b).
C. The Chief Financial Officers Act of 1990
The Service must also conform to the requirements of the Chief
Financial Officers Act of 1990 (CFO Act), Pub. L.
[[Page 41457]]
No. 101-576, 104 Stat. 2838 (1980). Subsection 205(a)(8) of the CFO Act
requires each agency's Chief Financial Officer to ``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 2844, 31
U.S.C. 902(a)(8).
What Federal Cost Accounting and Fee Setting Standards and
Guidelines Were Used in Developing the Proposed Fee Changes?
A. Office of Management and Budget (OMB) Circular No. A-25, User
Charges
When developing fees for special benefits, the Service adheres to
the principles contained in OMB Circular No. A-25, Revised, User
Charges (1993). OMB Circular No. A-25 states that as a general policy a
``user charge * * * will be assessed against each identifiable
recipient for special benefits derived from Federal activities beyond
those received by the general public.'' Id. at Sec. 6.
The guidance contained in OMB Circular No. A-25 is applicable to
the extent that it is not inconsistent with any Federal statute. For
example, specific legislative authority to charge fees for special
benefits takes precedence over OMB Circular No. A-25 when the statute
expressly designates ``who pays the charge; how much is the charge;
where collections are deposited.'' Id. at Sec. 4(b). When a statute
does not address issues of how to calculate fees or what costs to
include in the fee calculation, Federal agencies must follow the
principles and guidance contained in OMB Circular No. A-25 to the
fullest extent allowable. The guidance directs Federal agencies to
charge the ``full cost'' of providing benefits when calculating fees
that provide a special benefit to recipients. Id. at Sec. 6(a)(2)(a).
Subsection 6(d) of OMB Circular No. A-25 defines ``full cost'' as
including ``all direct and indirect costs to any part of the Federal
Government of providing a good, resource, or service.'' These costs
include, but are not limited to, an appropriate share of:
(a) Direct and indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement;
(b) 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;
(c) Management and supervisory costs; and
(d) The costs of enforcement, collection, research, establishment
of standards, and regulation.
Finally, section 6(d)(1)(e) states that ``[f]ull cost shall be
determined or estimated from the best available records of the agency,
and new cost accounting systems need not be established solely for this
purpose.''
B. Federal Accounting Standards Advisory Board Statement of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government
When developing fees for services, the Service also adheres to the
cost accounting concepts and standards recommended by the Federal
Accounting Standards Advisory Board (FASAB). The FASAB was established
in 1990, and its purpose is to recommend accounting standards for the
Federal Government. The FASAB defines ``full cost'' to include ``direct
and indirect costs that contribute to the output, regardless of funding
sources.'' 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).
To obtain full cost, FASAB identifies various classifications of costs
to be included, and recommends various methods of cost assignment, as
will be discussed later. Id. at 36-42.
How Are the Adjudication of Immigration and Naturalization Benefits
Funded and Supported?
A. Background
In 1988, Congress established the IEFA. See Pub. L. No. 100-459,
Sec. 209, 102 Stat. at 2203. In the first year of the IEFA's existence,
the Service retained the appropriation that funded the processing of
immigration and naturalization applications and petitions. During that
year, fees collected for these applications and petitions were used to
enhance the Adjudications and Naturalization Program (although Congress
did temporarily direct the Service to deposit $50 million of the fee
revenue into the General Fund of the Treasury). Id. In subsequent
years, fees deposited into the IEFA have been the primary source of
funding for the Adjudications and Naturalization Program, and other
Programs as directed by Congress, and generally have replaced the
annual appropriation that the Service received for such services. In
subsequent legislation, Congress directed the Service to use revenue in
the IEFA to fund the cost of asylum processing and other services
provided to immigrants at no charge. See Pub. L. No. 101-515, sec.
210(d)(2), 104 Stat. at 2121. Consequently, the Service began to add a
``surcharge'' to the immigration and naturalization fees to recover
these additional costs.
B. Sufficiency of the Current Fee Schedule
In a fee review of the IEFA for certain immigration and
naturalization applications and petitions completed in July 1997, the
Service identified a shortfall of revenues to expenses in the IEFA
because the fees did not recover the full costs of services provided.
This review involved an in-depth analysis of resources, activities, and
applications and petitions using an activity-based costing methodology.
The majority of current immigration and naturalization application and
petition fees are based on this review.
A recent General Accounting Office report entitled ``Immigration
Benefits--Several Factors Impede Timeliness of Application Processing''
(May 2001), identified inadequate automation as one of the three
factors which has impeded the INS' ability to reduce backlogs, improve
processing times, and effectively manage its workload. Id. at 2. The
report also identified the need for increased quality controls when
processing immigration and naturalization benefits. Id. at 42.
Information technology and quality assurance are included within the
definition of ``full cost'' as defined by OMB Circular No. A-25,
however these costs are not currently recovered in the fees.
Information technology and quality assurance are critical to improving
service to applicants and petitioners and ensuring consistent
adjudication. Therefore, the Service is including additional resources
in its proposed fees that will be dedicated solely to recovering
information technology and quality assurance costs.
Since fiscal year (FY) 1998, the costs of providing immigration and
naturalization benefits have risen as a result of general cost-of-
living increases. Therefore, the fees need to be adjusted to recover
the full costs associated with the benefits provided.
C. Programs That Support Immigration and Naturalization Services
The major Service programs that support immigration and
naturalization services are discussed below.
[[Page 41458]]
The Adjudications and Naturalization (A&N) Program processes,
adjudicates, and ultimately grants or denies applications and petitions
for benefits provided under the Act. It is responsible for processing
applications and petitions for immigration and naturalization benefits,
including, but not limited to: applications for permanent resident
status; applications for work authorization; petitions for relatives;
applications and petitions for immigrant and nonimmigrant workers;
applications for travel documents; and applications for extensions of
temporary stay by non-immigrants in the United States.
Naturalization processes also include the examination of aliens to
determine their qualifications for naturalization, the issuance of
citizenship documents, the appearance of Service officials and the
conduct of administrative naturalization oaths, and the appearance of
Service officials at Federal and State Courts that administer
naturalization oaths.
The A&N Program operates in District Offices located throughout the
United States, and in four Service Centers located in California,
Texas, Nebraska, and Vermont. Applications for immigration, nationality
and citizenship benefits, and naturalization are received and
adjudicated by a corps of immigration Adjudication Officers and
adjudication support personnel. District Officers adjudicate cases that
may require personal appearances by applicants and petitioners. Service
Center operations concentrate on cases that can be processed without
individual appearances, and benefit from the economies generated by
large volume, production-oriented processing.
The Information and Records Management Program creates, maintains,
stores and tracks records; responds to Freedom of Information Act and
Privacy Act requests; provides information and application forms to the
public (both in person and by telephone) on immigration-related
matters; and compiles, analyzes, publishes, and issues the Service's
statistical data.
The Investigations and Intelligence Programs focus on the detection
and deterrence of fraud to protect the integrity of benefits and
documents legitimately provided by the Service to authorized persons.
The International Affairs Program adjudicates refugee and asylum
applications (including FBI fingerprint checks of certain applicants),
conducts investigations for preference and relative visa petitions, and
conducts other records checks and background investigations as required
by overseas Service offices. Officers assigned to this program also
provide assistance to citizens and lawful permanent residents abroad
regarding foreign adoptions, immigration, or parole of alien spouses
and children, and other benefits under the Act. They also review
requests to the Attorney General to grant humanitarian parole into the
United States for deserving persons. Through grants and cooperative
agreements, staff also administer the Resettlement Program and
Unaccompanied Minors Program.
The Training Program provides the staff and resources necessary to
maintain an employee development program that meets the training needs
of the Service's asylum, adjudications, and naturalization workforce.
The Data and Communications Program develops and operates automated
information systems that support immigration and naturalization
processes.
The Legal Proceedings Program provides support and/or represents
the Service in cases involving asylum, rescission, naturalization, visa
petition, adjustment of status, registry, sections 212(c) (8 U.S.C.
1182(c)) and 241(f) (8 U.S.C. 1231(f)) of the Act, and other
examinations-related cases and matters.
The Management and Administration Program supports Service
personnel and offices involved in the processing and adjudication of
applications and petitions by providing various administrative services
including personnel, accounting, budgeting, equal employment
opportunity, procurement, property management, fleet management, and
security.
How Was the Proposed Application and Petition Fee Schedule
Determined?
A. 1999 Fee Review
The Service conducted a partial review of the current fee levels in
FY 1999. This review attempted to build upon the extensive work
completed in a 1997 review. In the FY 1999 review, the Service made
numerous changes to the underlying methodology of the 1997 review and
selected a few forms to conduct further analysis. As a result of the
methodology changes, the FY 1999 model produced different fee levels
than the 1997 review. However, the Service could not easily explain the
programmatic reasons for the changes in fee levels, i.e., application
processing had not significantly changed since the 1997 review. For
example, the Application for Naturalization (N-400) fee increased by
more than 50%, from $225 to $345. This increase of more than 50% would
have followed a 137% increase, from $95 to $225, that took place in
January 1999. At the time of the fee increase, the Service was able to
identify programmatic reasons, such as the Naturalization Quality
Procedures program, for the significant increase in the cost of
processing naturalization applications. However, the processing of
naturalization applications has remained fundamentally unchanged since
January 1999. The Service also had concerns that the revised model may
have inadvertently included costs associated with the application
backlog. As a result, the Service did not have confidence in basing the
proposed fee levels on the 1999 review due to questions regarding the
revised methodology as well as the limited nature of the review.
B. Basis for the Proposed Fee Schedule
Because of the apparent problems with the FY 1999 review, the
Service is relying primarily on the 1997 review, on which the majority
of current fees are based, to determine the proposed fees. This is
consistent with OMB's statement in Circular No. A-25 that ``full cost
shall be determined or estimated from the best available records of the
agency.'' Sec. 6(d)(1)(e). The 1997 review was based on an Activity-
Based Costing (ABC) methodology to determine the full costs of
processing immigration and naturalization applications and petitions.
ABC is sanctioned by FASAB as one of the recommended full cost
methodologies. In the 1997 review, applying ABC involved an in-depth
analysis of resources, resource drivers, activities, activity drivers,
and applications/petitions. The Service continues to believe that the
current fees accurately represented the costs for adjudicating cases in
1998. However, costs have increased as a result of inflation.
Therefore, the current fees have been adjusted for inflation (per
OMB inflationary factors) from 1998 to 2002. The adjusted fee level was
then averaged with the 2003 inflationary fee level, as the fee is
anticipated to be effective during 2002 and 2003. The Service then
applied $5.00 equally to all applications and petitions to recover
information technology and quality assurance costs that are not
included in the current fee levels. The Service believes that this
approach recovers the full costs of processing immigration
applications/petitions that it expects to receive over the next two
years.
The Service requests comments on whether it should set separate fee
schedules for FY 2002 and FY 2003 versus a single, blended schedule
that is
[[Page 41459]]
effective for both years. Commenters may want to consider whether
changing fee schedules would unduly confuse applicants and petitioners.
Does the Service Plan on Conducting a New Fee Review?
Yes, the Service plans on conducting a new fee study during the
next two years. Based on its experience with the 1999 review, the
Service plans on conducting a review of all application forms, as it
did in the 1997 review. As with this proposed rule, the Service intends
to continue using activity-based costing methodology as the primary
basis for the fees.
How Was the Proposed Fingerprint Fee Determined?
The Service began to operate its own fingerprint program in 1998.
Individuals applying for certain immigration and naturalization
benefits that require an FBI criminal background check are
fingerprinted by one of four methods. The four methods are as follows:
(1) The Service fingerprints the majority of individuals at 129
Service offices known as Application Support Centers (ASCs);
(2) Designated Law Enforcement Agencies (DLEAs) that have entered
into cooperative agreements with the Service fingerprint individuals
who do not reside near an ASC;
(3) Service personnel use mobile equipment to fingerprint
individuals at remote locations (mobile routes);
(4) United States consular offices or military installations abroad
fingerprint individuals residing outside of the United States.
The Service charges a fee to recover the operating costs of its
fingerprinting program. Congress directed the Service to implement
changes to its fingerprinting process within three months. This short
timeframe did not allow for an in-depth analysis of the costs.
Accordingly, the Service initially estimated the appropriate fee for
fingerprinting at $25 per individual and the fee was established by
publication of an interim rule in the Federal Register. See
Establishing a Fee for Fingerprinting by the Service, 63 FR 12,979,
12,986 (interim rule March 17, 1998). The Service began collecting that
fee on March 29, 1998. However, the Service soon determined that it was
not recovering the full costs of the fingerprint program.
To determine the actual cost of fingerprinting individuals applying
for certain immigration and naturalization benefits, the Service
reviewed the FY 1999 costs of operating the fingerprint program. The
applications included in this review were Forms I-360, Petition for
Amerasian, Widow(er), or Special Immigrant; I-485, Application to
Register Permanent Residence or Adjust Status; I-600/600A, Petition to
Classify Orphan as an Immediate Relative/Application for Advance
Processing of Orphan Petition; I-817, Application for Benefits under
the Family Unity Program; and N-400, Application for Naturalization.
The Service determined the number of individuals fingerprinted by
taking an average of the number of prints taken for FY 1998 and FY 1999
in order to allow for variances in available application volumes. To
determine the fingerprinting unit cost for individuals seeking certain
immigration and naturalization benefits, the Service divided the cost
of the fingerprint capture program by the average number of individuals
fingerprinted.
The Service assigned the cost of operating and maintaining the
ASCs, DLEAs, and mobile routes to the cost of operating and maintaining
the fingerprint capture program. The main costs included the fee for
contractor services at the ASCs and the Service's labor cost for
persons assigned to the fingerprinting program. The FY 1999 cost was
adjusted for inflation (per OMB inflationary factors) to FY 2000 and FY
2001, and averaged FY 2002 and FY 2003 costs, as the fee is anticipated
to be effective during these latter fiscal years.
What Are the Proposed Fees and How Do the Proposed Fees Compare to
the Current Fees?
A. Applications and Petitions
The proposed fees, current fees, and their dollar differences are
displayed in Table 1.
Table 1.--Current Versus Proposed Application and Petition Fees
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Proposed Current
Form No. Description fee fee Change
----------------------------------------------------------------------------------------------------------------
I-17........................... Petition for Approval of School Attendance $230 $200 $30
by Non-Immigrant Student.
I-90........................... Application to Replace Alien Registration 130 110 20
Card.
I-102.......................... Application for Replacement/Initial 100 85 15
NonImmigrant Arrival/Departure Document.
I-129.......................... Petitions for Nonimmigrant Worker.......... 130 110 20
I-129F......................... Petition to Classify Nonimmigrant as Fiance 110 95 15
I-130.......................... Petition to Classify Status of Alien 130 110 20
Relative for Issuance of Immigrant Visa.
I-131.......................... Application for Travel Document............ 110 95 15
I-140.......................... Immigrant Petition for Alien Worker........ 135 115 20
I-191.......................... Application for Advance Permission to 195 170 25
Return to Unrelinquished Domicile.
I-192.......................... Application for Advance Permission to Enter 195 170 25
as a Non-Immigrant.
I-193.......................... Application for Waiver of Passport and/or 195 170 25
Visa.
I-212.......................... Application to Reapply for Admission into 195 170 25
the U.S. After Deportation.
I-360.......................... Petition for Amerasian, Widow(er), or 130 110 20
Special Immigrant.
I-485.......................... Application to Register Permanent Residence 255 220 35
or Adjust Status.
I-506.......................... Application for Change of Nonimmigrant 85 70 15
Classification.
I-526.......................... Immigrant Petition by Alien Entrepreneur... 400 350 50
I-539.......................... Application to Extend/Change Nonimmigrant 140 120 20
Status.
I-600/600A..................... Petition to Classify Orphan as an Immediate 460 405 55
Relative/Application for Advance
Processing or Orphan Petition.
I-601.......................... Application for Waiver on Grounds of 195 170 25
Excludability.
I-612.......................... Application for Waiver of the Foreign 195 170 25
Residence Requirement.
I-751.......................... Petition to Remove the Conditions on 145 125 20
Residence.
I-765.......................... Application for Employment Authorization... 120 100 20
I-817.......................... Application for Voluntary Departure under 140 120 20
the Family Unity Program.
I-824.......................... Application for Action on an Approved 140 120 20
Application or Petition.
I-829.......................... Petition by Entrepreneur to Remove 395 345 50
Conditions.
N-300.......................... Application to File Declaration of 60 50 10
Intention.
[[Page 41460]]
N-336.......................... Request for Hearing on a Decision in 195 170 25
Naturalization Procedures.
N-400.......................... Application for Naturalization............. 260 225 35
N-470.......................... Application to Preserve Residence for 95 80 15
Naturalization Purposes.
N-565.......................... Application for Replacement of 155 135 20
Naturalization/Citizenship Document.
N-600.......................... Application for Certification of 185 160 25
Citizenship.
N-643.......................... Application for Certification of 145 125 20
Citizenship in Behalf of an Adopted Child.
----------------------------------------------------------------------------------------------------------------
B. Fingerprint Fee
Based on its review of costs, the Service is proposing to increase
the fingerprint fee to $50. The proposed fee has been rounded up to the
nearest whole $5 in accordance with the Service's standard practice.
Table 2.--Current Versus Proposed Fingerprint Fee
------------------------------------------------------------------------
Proposed Current
Description fee fee Change
------------------------------------------------------------------------
Fingerprinting by the Service....... $50 $25 $25
------------------------------------------------------------------------
Why Is the Fee for LIFE Act Adjustment of Status Applications (I-
485) Different Than the Fee Proposed in This Rule?
In an interim final rule published June 1, 2001, Adjustment of
Status Under Legal Immigration Family Equity (LIFE) Act and
Legalization Provisions and LIFE Act Amendments Family Unity
Provisions, 66 FR 29,661, 29,672 (June 1, 2001), the Service
established a $330 fee for filing legalization applications under
section 1004 of the Legal Immigration Family Unity Equity Act (LIFE
Act) and the LIFE Act Amendments. In establishing the fee, the Service
first identified the adjustment of status application (Form I-485)
process as most similar to the new legalization application process.
Id. at 29,667. The Service then referred to the 1999 review, which
identified an estimated full cost of the Form I-485 to be $330. Id. at
29,668.
The Service now questions the methodology and limited nature of
this review and is proposing that the Form I-485 fee be $255. However,
the Service also recognizes that there are start-up costs associated
with processing legalization applications that were not accounted for
in the 1999 review and, therefore, will not be recovered with the
proposed Form I-485 fee. As a result, the Service is currently
reviewing the $330 fee established for filing legalization
applications. In light of these developments, the Service intends to
publish a separate Federal Register document to extend or reopen, as
appropriate, the comment period on the $330 fee. Moreover if the
Service determines that the current full cost of a legalization
application is not $330, it will undertake a separate rulemaking to
adjust the fee and take whatever actions are appropriate to ensure
equity.
Does the Service Have the Authority To Waive Fees on a Case-by-Case
Basis?
Yes, the Service has the authority to waive fees on a case-by-case
basis pursuant to 8 CFR 103.7(c).
How Does This Proposal Fit With the President's Backlog Initiative?
The Administration is committed to building and maintaining an
immigration services system that ensures integrity, provides services
accurately and in a timely manner, and emphasizes a culture of respect.
The President proposed a universal six-month processing standard for
all immigration applications. To support this standard, the 2002 Budget
proposed $100 million--the first installment in a five-year, $500
million initiative to address the backlog problem.
In contrast to the budget, which requests appropriated resources to
eliminate the application backlog, this proposed rule addresses the
costs of processing cases that will be filed over the next two years.
If the Service does not adjust the current fees to reflect the costs of
processing applications and petitions, the backlog will likely
increase.
Regulatory Flexibility Act
The Attorney General, in accordance with 5 U.S.C. 605(b), has
reviewed this regulation and by approving it has determined that this
rule will not have a significant economic impact on a substantial
number of small entities.
The majority of applications and petitions are submitted by
individuals and not small entities as that term is defined in 5 U.S.C.
601(6).
The Service acknowledges, however, that a number of small entities,
particularly those filing business-related applications and petitions,
such as Forms I-140, Immigrant Petition for Alien Worker; I-526,
Immigrant Petition by Alien Entrepreneur; and I-829, Petition by
Entrepreneur to Remove Conditions may be affected by this rule. For FY
2001, the Service projects approximately 130,000 Forms I-140, 400 Forms
I-526, and 400 Forms I-829 will be filed. However, this volume
represents petitions filed by a variety of businesses, ranging from
large multi-national corporations to small domestic businesses. The
Service does not collect data on the size of the businesses filing
petitions, and therefore does not know the number of small businesses
that may be affected by this rule. Even if all of the employers
applying for benefits met the definition of small businesses, however,
the resulting degree of economic impact would not require a Regulatory
Flexibility Analysis to be performed.
Unfunded Mandates Reform Act of 1995
This rule will not impose a mandate of enforceable duty on State,
local and tribal governments, in the aggregate, or on the private
sector, and it will not significantly or uniquely affect small
governments. Accordingly, no further actions are necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is a major rule as defined by the Small Business
Regulatory
[[Page 41461]]
Enforcement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996).
Based on the data included in the proposed rule, this rule will result
in an annual effect on the economy of $169 million, in order to
generate the revenue necessary to fund the increased expenses of
processing the Service's immigration and naturalization applications
and petitions. The increased fees will be paid by persons who file
applications or petitions to obtain immigration benefits.
The projected increase in revenues probably overstates the actual
receipt of applications and petitions because it is likely that there
will be fewer applications and petitions filed due to the
implementation of the higher fees. The decrease in volume due to the
higher fees has a real economic effect in that there will be fewer
people applying for and receiving services paid for by the Service's
user fees.
Executive Order 12866
This rule is considered by the Department of Justice to be an
economically ``significant regulatory action'' under section 3(f) of
Executive Order 12866, Regulatory Planning and Review, because it will
have an annual effect on the economy of over $100 million. Without the
fee adjustments, the Service estimates that it will collect
approximately $815 million in fees for immigration and naturalization
benefits in FY 2002. If the fee adjustments become effective on January
1, 2002, the Service anticipates collecting approximately $942 million
in FY 2002--$127 million in additional revenue.
The projected increase in revenues probably overstates the actual
receipt of applications and petitions because it is likely that there
will be fewer applications and petitions filed due to the
implementation of the higher fees. The decrease in volume due to the
higher fees has a real economic effect in that there will be fewer
people applying for and receiving services paid for by the Service's
user fees.
This increase in revenue will be used to fund the processing of
immigration and naturalization applications and petitions. The revenue
increase is based on the Service's costs and workload volumes. The
volume of applications and petitions filed is projected based on a
regression analysis of a 5-year history of actual applications and
petitions received by the Service. The regression analysis is adjusted
for any anticipated or actual changes in laws, policies, or procedures
that may affect future filing patterns. The proposed fees will be paid
by an estimated 6.6 million individuals and businesses filing
immigration and naturalization applications and petitions. Accordingly,
this regulation has been submitted to OMB for review.
Executive Order 13132
This rule 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 has determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a final rule. This rule does not impose any new reporting
or recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
Accordingly, part 103 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557; 3 CFR, 1982 Comp., p.166; 8 CFR part 2.
2. In Sec. 103.7, paragraph (b)(1) is amended by revising the entry
``For fingerprinting by the Service'' and by revising the entries for
the following forms. The revisions read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
For fingerprinting by the Service. A service fee of $50 will be
charged by the Service for any individual who is required to be
fingerprinted in connection with an application or petition for certain
immigration and naturalization benefits (other than asylum), and whose
residence is in the United States as defined in section 101(a)(38) of
the Act.
* * * * *
Form I-17. For filing an application for school approval, except in
the case of a school or school system owned or operated as a public
educational institution or system by the United States or a state or
political subdivision thereof--$230.00.
* * * * *
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--$130.00.
* * * * *
Form I-102. For filing a petition for an application (Form I-102)
for Arrival/Departure Record (Form I-94) or Crewman's Landing (Form I-
95), in lieu of one lost, mutilated, or destroyed--$100.00.
* * * * *
Form I-129. For filing a petition for a nonimmigrant worker, a base
fee of $130. For filing an H-1B petition, a base fee of $130 plus an
additional $1,000 fee in a single remittance of $1,130. The remittance
may be in the form of one or two checks (one in the amount of $1,000
and the other in the amount of $130). Payment of this additional $1,000
fee is not waivable under Sec. 103.7(c)(1). Payment of this additional
$1,000 fee is not required if an organization is exempt under
Sec. 214.2(h)(19)(iii) of this chapter, and this additional $1,000 fee
also does not apply to certain filings by any employer as provided in
Sec. 214.2(h)(19)(v) of this chapter.
Form I-129F. For filing a petition to classify nonimmigrant as
fiance or fiance under section 214(d) of the Act--$110.00.
Form I-130. For filing a petition to classify status of alien
relative for issuance of immigrant visa under section 204(a) of the
Act--$130.00.
Form I-131. For filing an application for travel documents--
$110.00.
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--$135.00.
* * * * *
[[Page 41462]]
Form I-191. For filing applications for discretionary relief under
section 212(c) of the Act--$195.00.
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--$195.00.
Form I-193. For filing an application for waiver of passport and/or
visa--$195.00.
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--
$195.00.
* * * * *
Form I-360. For filing a petition for an Amerasian, Widow(er), or
Special Immigrant--$130.00, except there is no fee for a petition
seeking classification as an Amerasian.
Form I-485. For filing an application for permanent resident status
or creation of a record of lawful permanent residence--$255.00 for an
applicant 14 years of age or older; $160.00 for an applicant under the
age of 14 years; no fee for an applicant filing as a refugee under
section 209(a) of the Act. All applicants filing for Adjustment of
Status under LIFE Act Legalization (Public Law 106-553) must pay
$330.00.
* * * * *
Form I-506. For filing an application for change of nonimmigrant
classification under Section 248 of the Act--$85.00.
Form I-526. For filing a petition for an alien entrepreneur--
$400.00.
* * * * *
Form I-539. For filing an application to extend or change
nonimmigrant status--$140.00.
* * * * *
Form I-600. For filing a petition to classify orphan as an
immediate relative for issuance of immigrant visa under section 204(a)
of the Act. (When more than one petition is submitted by the same
petitioner on behalf of orphans who are brothers or sisters, only one
fee will be required.)--$460.00.
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.)--$460.00.
Form I-601. For filing an application for waiver of ground of
inadmissibility under section 212(h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those subsections.)--$195.00.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$195.00.
* * * * *
Form I-751. For filing a petition to remove the conditions on
residence, based on marriage--$145.00.
Form I-765. For filing an application for employment authorization
pursuant to 8 CFR 274a.13--$120.00.
* * * * *
Form I-817. For filing an application for voluntary departure under
the Family Unity Program--$140.00.
* * * * *
Form I-824. For filing for action on an approved application or
petition--$140.00.
Form I-829. For filing a petition by entrepreneur to remove
conditions--$395.00.
* * * * *
Form N-300. For filing an application for declaration of
intention--$60.00.
Form N-336. For filing a request for hearing on a decision in
naturalization proceedings under section 366 of the Act--$195.00.
Form N-400. For filing an application for naturalization--$260.00.
* * * * *
Form N-470. For filing an application for section 316(b) or 317 of
the Act benefits--$95.00.
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--$155.00.
Form N-600. For filing an application for a certificate of
citizenship under section 309(c) or section 341 of the Act--$185.00.
Form N-643. For filing an application for a certificate of
citizenship on behalf of an adopted child--$145.00.
* * * * *
Dated: August 3, 2001.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 01-19875 Filed 8-3-01; 2:37 pm]
BILLING CODE 4410-10-P
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