2010-13991

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Friday,

June 11, 2010

Part IV

Department of Homeland Security 8 CFR Parts 103, 204, 244, et al.

U.S. Citizenship and Immigration ServicesFee Schedule; Proposed Rule

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33446 Federal Register / Vol. 75, No. 112/ Friday, June 11, 2010 / Proposed Rules

DEPARTMENT OF HOMELANDSECURITY

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 ImmigrationServices Fee Schedule

AGENCY: U.S. Citizenship andImmigration Services, DHS.

ACTION: Proposed rule.

SUMMARY: The Department of HomelandSecurity (DHS) proposes to adjustcertain immigration and naturalization

benefit fees charged by U.S. Citizenshipand Immigration Services (USCIS).USCIS conducted a comprehensive feestudy and refined its cost accountingprocess, and determined that currentfees do not recover the full costs of

services provided. Adjustment to the feeschedule is necessary to fully recovercosts and maintain adequate service.DHS proposes to increase USCIS fees bya weighted average of 10 percent. DHSproposes among other amendments toadd three new fees to cover USCIS costsrelated to processing the followingrequests: Regional center designationunder the Immigrant Investor PilotProgram; Civil surgeon designation; andImmigrant visas.DATES: Written comments must besubmitted on or before July 26, 2010.

ADDRESSES: Comments, identified by

DHS Docket No. USCIS–2009–0033,should be submitted by one of thefollowing methods:

• Federal eRulemaking Portal: http:// www.regulations.gov. Follow theinstructions for submitting comments.

• Mail: Chief, Regulatory ProductsDivision, U.S. Citizenship andImmigration Services, Department of Homeland Security, 111 MassachusettsAvenue, NW., Room 3008, Washington,DC 20529–2210. To ensure properhandling, please reference DHS DocketNo. USCIS–2009–0033 on thecorrespondence. This mailing addressmay also be used for paper, disk, or CD–ROM submissions.

• Hand Delivery/Courier: RegulatoryProducts Division, U.S. Citizenship andImmigration Services, Department of Homeland Security, 111 MassachusettsAvenue, NW., Room 3008, Washington,DC 20529–2210. Contact TelephoneNumber (202) 272–8377.

FOR FURTHER INFORMATION CONTACT:Timothy Rosado, Chief, BudgetDivision, U.S. Citizenship andImmigration Services, Department of Homeland Security, 20 Massachusetts

Avenue, NW., Washington, DC 20529–2130, telephone (202) 272–1930.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public ParticipationII. Legal Authority and GuidanceIII. The Immigration Examinations Fee

Account

A. General BackgroundB. Fee Review HistoryC. USCIS Accomplishments Funded under

the 2007 Fee AdjustmentD. Processing Time OutlookE. FY 2008/2009 Fee Rule EnhancementsF. Administration Policy

IV. FY 2010/2011 Immigration ExaminationFee Account Fee Review

A. Overall ApproachB. Basis for Fee Schedule Changes1. Costsa. Baseline Adjustments

b. Program Increase2. Revenue3. Refugee and Asylum Surcharge4. Military Naturalizations

5. Proposed FY 2011 Appropriations forSystematic Alien Verification forEntitlements (SAVE) Program and theOffice of Citizenship

6. Establish an Immigrant Visa ProcessingFee

7. Civil Surgeon Program Fees8. EB–5 Regional Center Designation Fee9. Employment Authorization Document

Fees for Applicants Covered by DeferredEnforced Departure (Form I–765)

C. SummaryD. Performance Improvements

V. Fee Review MethodologyA. Background1. ABC Methodologya. Resources

b. Resource Drivers and ResourceAssignment

c. Activitiesd. Activity Drivers and Activity

Assignmente. Cost Objects2. Low Volume Reallocation3. Application for NaturalizationB. Key Changes Implemented for the FY

2010/2011 Fee Review1. Appropriation for Refugee, Asylum, and

Military Naturalization Benefits2. Fee Waivers and Exemptions3. Immigrant Visa Processing Fee4. EB–5 Regional Center Designation Fee5. Civil Surgeon Program

VI. Volume

VII. Completion RatesVIII. Proposed Fee Adjustments

A. Proposed Adjustments to IEFAImmigration Benefits

B. Removal of Fees Based on FormNumbers

C. Collection of Biometrics Fees OverseasIX. Statutory and Regulatory Reviews

A. Regulatory Flexibility ActB. Unfunded Mandates Reform ActC. Small Business Regulatory Enforcement

Fairness ActD. Executive Order 12866E. Executive Order 13132F. 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 toparticipate in this rulemaking bysubmitting written data, views, orarguments on all aspects of thisproposed rule. Comments that willprovide the most assistance to DHS willreference a specific portion of theproposed rule, explain the reason for


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33447Federal Register / Vol. 75, No. 112/ Friday, June 11, 2010 / Proposed Rules

1 INA section 286(m), 8 U.S.C. 1356(m), provides,in pertinent part:

Notwithstanding any other provisions of law, alladjudication fees as are designated by the [Secretaryof Homeland Security] in regulations shall bedeposited as offsetting receipts into a separateaccount entitled ‘‘Immigration Examinations FeeAccount’’ 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 providingadjudication and naturalization services may be setat a level that will ensure recovery of the full costsof providing all such services, including the costsof similar services provided without charge toasylum applicants or other immigrants. Such feesmay also be set at a level that will recover anyadditional costs associated with the administrationof the fees collected.

Paragraph (n) provides that deposited fundsremain available until expended ‘‘for expenses inproviding immigration adjudication andnaturalization services and the collection,safeguarding and accounting for fees deposited inand funds reimbursed from the ‘ImmigrationExaminations Fee Account’.’’

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

3 INA section 286(m), 8 U.S.C. 1356(m), provides broader fee-setting authority and is an exceptionfrom the stricter costs-for-services-renderedrequirements of the Independent OfficesAppropriations Act, 1952, 31 U.S.C. 9701(c)(IOAA); see Seafarers Intern. Union of NorthAmerica v. U.S. Coast Guard, 81 F.3d 179 (DC Cir.1996) (IOAA provides that expenses incurred byagency to serve some independent public interestcannot be included in cost basis for a user fee,

Continued

any recommended change, and includedata, information, or authority thatsupport such recommended change.

Instructions: All submissions receivedmust include the agency name and DHSDocket No. USCIS–2009–0033. Allcomments received will be postedwithout change to http:// www.regulations.gov, including any

personal information provided.Anonymous comments should besubmitted to http:// www.regulations.gov.

Docket: For access to the docket toread background documents orcomments received, go to http:// www.regulations.gov.

The docket includes additionaldocuments that support the analysiscontained in this rule to determine thespecific fees that are proposed. Thesedocuments include:

• FY 2010/2011 Fee ReviewSupporting Documentation; and

• Small Entity Analysis forAdjustment of the U.S. Citizenship andImmigration Services Fee Schedule.

These documents may be reviewed onthe electronic docket. The software usedin computing the immigration benefitrequest and biometric fees is acommercial product licensed to USCISthat may be accessed on-site byappointment by calling (202) 272–1930.

II. Legal Authority and Guidance

The Immigration and Nationality Actof 1952 (INA), as amended, provides forthe collection of fees at a level that willensure recovery of the full costs of

providing adjudication andnaturalization services, includingservices provided without charge toasylum applicants and certain otherimmigrant applicants. INA section286(m), 8 U.S.C. 1356(m).1 The INAprovides that the fees may recover

administrative costs as well. The feerevenue collected under section 286(m)of the INA remains available to DHS toprovide immigration and naturalization

benefits and ensures the collection,safeguarding, and accounting of fees byUSCIS. INA section 286(n), 8 U.S.C.1356(n).

INA section 286(m), 8 U.S.C. 1356(m),

contains both silence and ambiguityunder Chevron USA, Inc. v. Natural Resources Defense Council , 467 U.S.837 (1984). Congress has not spokendirectly, for example, to a number of issues present in this section, includingthe scope of application of the sectionor subsidizing operations from otherfees.2 Congress has provided that USCISrecover costs ‘‘including the costs of similar services’’ provided to ‘‘asylumapplicants and other immigrants.’’Congress has not detailed thedetermination of what costs are to beincluded. Moreover, ‘‘other immigrants’’

has a broad meaning under the INA because the term ‘‘immigrant’’ is defined by exclusion to mean ‘‘every alienexcept an alien who is within one of thefollowing classes of nonimmigrantaliens.’’ INA section 101(a)(15), 8 U.S.C.1101(a)(15). The extensive listing of exclusions from ‘‘immigrant’’ by thenon-immigrant visa classes is repletewith ambiguity evidenced by thedetailed and complex regulations andjudicial interpretations of thoseprovisions.

Additionally, Congress providesappropriations for specific USCISprograms. Appropriated funding for FY2010 included asylum and refugeeoperations (4th Quarter contingencyfunding), and military naturalizationsurcharge costs ($55 million); E-Verify($137 million); immigrant integration($11 million); REAL ID Actimplementation ($10 million); and datacenter consolidation ($11 million).Department of Homeland SecurityAppropriations Act, 2010, Public Law111–83, title IV, 123 Stat. 2142, 2164—5 (Oct. 28, 2009) (DHS AppropriationAct 2010). Providing these limited fundsagainst the backdrop of the broadimmigration examinations fee statute—

together forming the totality of fundingavailable for USCIS operations—requires that all other costs relating toUSCIS and adjudication operations arefunded from fees.

When no appropriations are received,or fees are statutorily set at a level thatdoes not recover costs, or DHSdetermines that a type of applicationshould be exempt from payment of fees,

USCIS must use funds derived fromother fee applications to fund overallrequirements and general operations.For example, when a fee such asTemporary Protected Status (TPS), set

by statute at $50, does not cover the costof adjudicating the TPS application, theexcess cost must be recovered by feescharged to other applications. INA

section 244(c)(1)(B), 8 U.S.C.1254a(c)(1)(B). Furthermore, when apolicy decision is made by regulations,for example, to exempt aliens who arevictims of a severe form of trafficking inpersons and who assist law enforcementin the investigation or prosecution of the acts of trafficking (T Visa), andaliens who are victims of certain crimesand are being helpful to theinvestigation or prosecution of thosecrimes (U Visa), from visa fees, the costof processing those fee-exempt visasmust be recovered by fees chargedagainst 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); 8CFR 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 initialsteps taken by the Administrationwithin enacted FY 2010 appropriationsfor USCIS fee reform that moved someasylum, refugee, and militarynaturalization costs out of the feestructure. The purpose of this fee reformis to improve the linkage between feespaid by USCIS applicants and

petitioners and the cost of programs andactivities to provide immigration

benefits. Because of fee exemptions for beneficiaries of asylum, refugee, andmilitary naturalization, fee surchargeswere added to other applications andpetitions. 72 FR 29859. Similarly, costsof SAVE and the Office of Citizenshipare currently only partially supported

by fee revenue. Additional fee reform inthese areas moves these costs out of theUSCIS fee structure and improves thetransparency of USCIS fees.Nevertheless, while USCIS hascalculated its fees as much as possible

to bear a relationship with the effortexpended to carry out the adjudication,fees are the prevalent source of USCISfunding.3














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although agency is not prohibited from chargingapplicant full cost of services rendered to applicant

which also results in some incidental public benefits). Congress initially enacted immigration feeauthority under the IOAA. See Ayuda, Inc. v.Attorney General, 848 F.2d 1298 (DC Cir. 1988).Congress thereafter amended the relevant provisionof law to require deposit of the receipts into theseparate Immigration Examinations Fee Account of the Treasury as offsetting receipts to fundoperations, and broadened the fee setting authority.Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies AppropriationsAct, 1991, Public Law 101–515, sec. 210(d), 104Stat. 2101, 2111 (Nov. 5, 1990). Additional valuesare considered in setting Immigration ExaminationsFee Account fees that would not be considered insetting fees under the IOAA. See 72 FR at 29866—7.

4DHS may reasonably adjust fees based on valuejudgments and public policy reasons where arational basis for the methodology is propounded inthe 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).

5FY 2008/2009 Fee Rule as used in this ruleencompasses the proposed rule, final rule, feestudy, and all supporting documentation associatedwith the regulations effective July 30, 2007.

DHS works with the Office of Management and Budget (OMB) andfollows the guidance provided by OMBCircular A–25, establishing Federalpolicy guidance regarding fees assessed

by Federal agencies for governmentservices. 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 byan agency to specific recipients be self-sustaining;

b. Promote efficient allocation of theNation’s resources by establishing charges forspecial benefits provided to the recipient thatare at least as great as costs to theGovernment of providing the special benefits;and

c. Allow the private sector to compete withthe Government without disadvantage insupplying comparable services, resources, orgoods where appropriate.

Id , par. 5. In summary, one objective of Circular A–25 ensures that Federalagencies recover the full costs of providing specific services to users andassociated costs. Full costs include, butare not limited to, an appropriate shareof:

• Direct and indirect personnel costs,including salaries and fringe benefitssuch as medical insurance andretirement;

• Physical overhead, consulting, andother indirect costs, including materialand supply costs, utilities, insurance,travel, and rents or imputed rents onland, 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), 8U.S.C. 1356(m), provides DHS broaderdiscretion to include other costs.

OMB Circular A–25 advises that feesshould be set to recover these costs intheir entirety. Full costs are determined

based upon the best available records of the agency. Id. See also OMB CircularA–11, section 20.7(d), (g) (August 7,2009, revised November 16, 2009) (FY2011 budget formulation and executionpolicy regarding user fees), found athttp://www.whitehouse.gov/omb/assets/ a11 _current _ year/a _11 _2009.pdf. DHSand OMB use OMB Circular A–25 as the

overall policy guidance for determiningthe activity based costing that forms a

base for the ultimate decisions onappropriate fee amounts, and, inconjunction with OMB Circular A–11,issued each budget cycle, determiningappropriate requests for appropriationsthat may offset a portion of the totalityof fee recovery.

OMB Circulars A–11 and A–25provide internal Executive Branchdirection for the development of appropriation requests and feeschedules (under the IOAA), but areadapted here to the activity based

costing methodology that forms thenucleus for the proposed fee schedule.These internal directions remain at thediscretion of the President and theDirector of OMB. 5 CFR 1310.1.

DHS also conforms to therequirements of the Chief FinancialOfficers Act of 1990 (CFO Act), 31U.S.C. 901–03, requiring that eachagency’s Chief Financial Officer (CFO)‘‘review, on a biennial basis, the fees,royalties, rents, and other chargesimposed by the agency for services andthings of value it provides, and makerecommendations on revising thosecharges to reflect costs incurred by it in

providing those services and things of value.’’ Id. at 902(a)(8). This proposedrule reflects recommendations made bythe DHS CFO and USCIS CFO.

When developing proposed fees,USCIS reviews, to the extent applicable,cost accounting concepts and standardsrecommended by the FederalAccounting Standards Advisory Board(FASAB). The FASAB defines ‘‘full cost’’

to include ‘‘direct and indirect costs thatcontribute 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). Todetermine the full cost of a service orservices, FASAB identifies variousclassifications of costs to be includedand recommends various methods of cost assignment. Id. at 33–42. DHSproposes complete funding of existingservices and specific allocationmethods.

Accordingly, DHS applies thediscretion provided in INA section286(m), 8 U.S.C. 1356(m), to (1) developactivity based costing to establish basic

fee setting parameters that are consistentto the extent practical with OMBCircular A–25, (2) appliesadministrative judgment to spread thoseoverhead and other costs that are notdriven by the cost of services, and (3)applies policy judgments to effectuatethe overall Administration policy.4 The‘‘full’’ cost of operating USCIS, less any

appropriated funding, has been thehistorical total basis for establishing thecost basis for the fees, and Congress hasconsistently recognized this concept onannual appropriations. This proposedrule reflects the authority granted toDHS by INA section 286(m) and otherstatutes.

III. The Immigration Examinations FeeAccount

A. General Background

In 1988, Congress established theImmigration Examination Fee Account(IEFA). Public Law 100–459, section

209, 102 Stat. 2186 (Oct. 1, 1988),enacting, after correction, INA sections286(m) and (n), 8 U.S.C. 1356(m) and(n). Fees deposited into the IEFA fundthe provision of immigration andnaturalization benefits and other

benefits as directed by Congress. Insubsequent legislation, Congressdirected that the IEFA also fund the costof asylum processing and other servicesprovided 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 benefitfees were increased to recover these

additional costs. See 59 FR 30520 (June14, 1994).

B. Fee Review History

USCIS conducted a comprehensivefee review in 2007 and promulgated arevised fee schedule that amendedmany of the fees charged by USCIS tomore accurately reflect the costs of theservices provided by USCIS. 72 FR29851 (May 30, 2007) (final rule) (FY2008/2009 Fee Rule).5 The 2007 finalrule was effective on July 30, 2007,covering FY 2008 and FY 2009. Thedocumentation accompanying this rulein the rulemaking docket at http:// www.regulations.gov contains ahistorical fee schedule that shows theimmigration benefit fee history since FY


http://www.whitehouse.gov/omb/assets/a11_current_year/a_11_2009.pdf
















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1985. The Immigration andNaturalization Service (INS) or USCISalso adjusted fees incrementally in1994, 2002, 2004, and 2005. See,respectively, 59 FR 30520 (June 14,1994); 66 FR 65811 (Dec. 21, 2001); 69FR 20528 (April 15, 2004); and 70 FR56182 (Sep. 26, 2005). Prior to USCIS’s2007 review and update, the last

comprehensive fee review wasconducted by INS in 1998. 63 FR 43604(Aug, 14, 1998).

USCIS is committed to reviewing theIEFA every two years consistent with

the biennial review standard of the CFOAct and guidance from OMB CircularA–25. The FY 2008/2009 Fee Rulefollowed nearly a decade without acomprehensive review of IEFA fees, andfees increased by a weighted average of 86 percent to recover both base costsand costs for improving operations andservice-wide performance needs. Byreviewing the IEFA every two years,USCIS is able to implement moremoderate fee changes and avoid periodsof inadequate revenue that typically

precede large fee increases.Additionally, conducting acomprehensive review every two yearswill allow USCIS to incorporate theproductivity gains achieved frominvestments in technology andmodernization of agency operations.These investments should result inimproved performance and lower costs.

Table 1 sets out the current IEFA and biometric fee schedule.BILLING CODE 9111–97–P


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BILLING CODE 9111–97–C

C. USCIS Accomplishments Funded Under the 2007 Fee Adjustment

The 2007 adjustment to USCIS’s feeschedule enabled USCIS to accomplishseveral critical service actions andimprovements, including improvedservice delivery. The following are someof the key accomplishments:

• USCIS processed nearly 1.2 millionnaturalization applications in FY 2008,56 percent more than FY 2007. As of March 2010, approximately 262,000naturalizations cases were pending—one of the lowest levels in recenthistory.

• A surge response plan implementedin FY 2008 enabled USCIS to meetnearly all FY 2008/2009 Fee Ruleprocessing time goals by the end of FY2009.

• In FY09 USCIS and the FBIeffectively eliminated the NationalName Check Program (NNCP) backlog.NNCP now is able to complete 98

percent of name check requestssubmitted by USCIS within 30 days, andthe remaining 2 percent within 90 days.

• Refugee admissions totaled 74,652for FY 2009, a 25 percent increase overthe FY 2008 admissions level. Thisfigure includes the processing of 18,833Iraqi refugees, up from 13,000 in FY2008.

• USCIS is using System QualifiedAdjudication (SQA) to electronicallyadjudicate some cases and determinethose that require closer review. Thisimprovement helps staff focus attentionon 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 maildelivery process whereby USCISdelivers re-entry permits and refugeetravel documents to applicants via theU.S. Postal Service Priority Mail. Thisprocess allows documents to bedelivered in two to three days withdelivery confirmation.

• USCIS is transitioning to a U.S.Department of the Treasury Lockboxprovider and away from dispersed

collection points to improve intakeoperations and control the timing of feedeposits. Two major forms—Form N–400, Application for Naturalization, andForm I–90, Application to ReplacePermanent Resident Card—have already

been centralized for filing at theLockbox. Likewise, forms related tointernational adoptions that are fileddomestically have been centralized for

filing at the Lockbox: (Form I–800,Petition to Classify Convention Adopteeas an Immediate Relative; Form I–800A,Application for Determination of Suitability to Adopt a Child from aConvention Country; Form I–600,Petition to Classify Orphan as anImmediate Relative; and Form I–600A,Application for Advance Processing of Orphan Petition). USCIS centralizedeight more application types inDecember 2009.

In tandem with the additionalcapacity and efficiency improvementsin the FY 2008/2009 Fee Rule, USCIS

committed to reducing immigration benefit request processing times. Twoperformance goals were specified:

• Reduce processing times by the endof FY 2008 for four key benefits:

Æ Application to Register PermanentResidence or Adjust Status (Form I–485), from six months to fourmonths;

Æ Application for Naturalization(Form N–400) from seven months tofive months;

Æ Application to Replace PermanentResidence Card (Form I–90) fromsix months to four months; and

Æ Immigrant Petition for AlienWorker (Form I–140), from sixmonths to four months.

• Achieve a 20 percent reduction inaverage application processing times bythe end of FY 2009.

During the period between the 2007notice of proposed rulemaking andimplementation of a final rule on July30, 2007, USCIS received a substantialsurge in immigration benefit requests.This surge more than doubled thenumber of naturalization applicationsreceived for the entire year—at the

lower fee level which the fee study hadfound insufficient to cover the costs of processing those applications.Naturalization applications are verylabor-intensive and the additional surgehad a significant impact on USCISresources.

USCIS responded to the 2007 surge byrapidly adding capacity in 2008 inexcess of the increases planned in

connection with the FY 2008/2009 FeeRule. Despite completing 1.6 millionmore requests than received during FY2008, USCIS could not meet itsprocessing 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 theexisting 20 percent processing timereduction goal slated to be reached bythe end of FY 2009. USCIS achievednearly all of the goals set for the FY2008/2009 Fee Rule by the end of FY2009.

D. Processing Time Outlook

USCIS met or exceeded nearly all FY2008/2009 Fee Rule processing timeperformance goals by the end of FY2009. Processing time progress updatesare posted monthly to the USCIS Website. For the FY 2010/2011 period,USCIS intends to ensure that the FY2008/2009 Fee Rule average processingtime goals are met and maintained.Wherever appropriate and feasible,USCIS aims to exceed targetperformance goals through existing staff levels, efficiency improvements, andsystems modernization. USCIS does notplan to increase adjudication staffing

levels and, in fact, has and will continueto reduce staff during the FY 2010/2011 biennial period based on currentrevenue trends and the institutionalfocus on countering fee increases to theextent possible.

E. FY 2008/2009 Fee RuleEnhancements

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


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1, 2007); 72 FR 29851 at 29855 (May 30,2007). USCIS has successfullyimplemented these enhancements and

initiatives, and, of 43 initiatives, 35 arecomplete.BILLING CODE 9111–97–P


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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).


F. Administration Policy

President Obama launched a multi-year effort in his fiscal year (FY) 2010Budget to reform immigration fees. Thepurpose of reforming immigration feesis to improve the transparency andprecision of how fees are determinedand to develop, as a matter of discretion,

fees that reflect more closely actualcosts of adjudication and assignableassociated costs. The President’s FY2010 Budget requested appropriationsfrom Congress to allow USCIS to removethe surcharge for refugee and asylumprogram costs and militarynaturalizations. Additional steps toreform immigration fees have continuedin the President’s FY 2011 Budgetrequest and in this proposed fee rule.

DHS has calculated the proposedchanges to the fee schedule based on thefee reform steps taken in the FY 2010Budget and FY 2011 Budget request.These changes may require adjustmentif USCIS’s appropriation requests arenot enacted or are reduced for FY 2011.Accordingly, DHS is proposing a rangeof fees to account for fee increases thatwould be necessary if the requestedappropriations for FY 2011 are notenacted.

IV. FY 2010/2011 ImmigrationExamination Fee Account Fee Review

A. Overall Approach

USCIS manages three fee accounts:The IEFA (which includes premium

processing revenues set aside forinfrastructure improvements by theOffice of Transformation Coordinationfor near- and long-term investments tostrategically improve USCISoperations),6 the Fraud Prevention andDetection Account (immigration benefitfraud),7 and the H–1B NonimmigrantPetitioner Account.8 The FraudPrevention and Detection account andthe H–1B Nonimmigrant PetitionerAccount are both funded by statutorily-set fees. The proceeds of these fees areused for fraud detection and preventionactivities and to provide training forAmerican workers in order to reduceemployer reliance on nonimmigrantworkers, respectively. DHS has noauthority to adjust fees for theseaccounts.

The IEFA account comprisedapproximately 95 percent of totalfunding for USCIS in FY 2009,excluding premium processing, and isthe focus of this proposed rule. The FY

2010/2011 Fee Review encompassesthree core elements:

• Cost Projections—The cost baselineis the estimated level of fundingnecessary to maintain an adequate levelof operations and does not includeprogram increases for new development,modernization, or acquisition. Proposed

program increases are consideredoutside of the baseline. Cost projectionsfor FY 2010/2011 are derived from theUSCIS operating plan for FY 2010.

• Revenue Status and Projections—Actual revenue collections for FY 2009are used to derive projections for thetwo-year period of the fee review basedon current and anticipated trends.

• Cost and Revenue Differential —Thedifference between anticipated costsand revenue, assuming no change infees, is identified.

The primary objective of this feereview is to ensure immigration benefitrequest fee revenue provides sufficientfunding to meet ongoing operating costs,including national security, customerservice, and business adjudicativeprocessing needs which are essential toprovide immigration benefits andservices.

B. Basis for Fee Schedule Changes

When conducting the comprehensive

fee review, USCIS reviewed its recentcost history, operating environment, andcurrent service levels to determine theappropriate method to assign costs toparticular form types. Overall, USCISkept costs as low as possible andminimized non-critical program changesthat would increase costs.

1. Costs

a. Baseline Adjustments

The cost baseline is comprised of theresources (such as personnel and


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general expenses) necessary for eachUSCIS office to sustain operations. The

baseline excludes new or expandedprograms or significant policy changes.A detailed USCIS annual operating plan(AOP) is the starting point for baselineestimates.

In developing estimates of programneeds for FY 2010/2011, USCIS used the

FY 2010 AOP as the starting point. Inresponse to reduced workload anddeclining revenue during both FY 2008and FY 2009, USCIS reduced baselinecosts for FY 2010.

Expenditures were reduced by $111million in such areas as staffing andcorrespondingly reduced introductorytraining programs, overtime, andfacilities improvement.

These reductions were offset bynecessary pay adjustments andincreases to programs to maintain

current services, particularlyadjustments to programs that receivedone-time reductions during FY 2009.Examples of necessary adjustmentsinclude:

• Pay inflation ($15.1 million in FY2010 and $16.5 million in FY 2011). Theassumed government-wide pay inflationrate 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 $16million in FY 2011);

• Rent increases ($15.1 million in FY2010 and $27.6 million in FY 2011).Rent increases as existing leases expireand are renegotiated. Rent is projectedto increase by 9 percent in FY 2010 and15 percent in FY 2011. The increase inrent is attributable to several factorsincluding the size of the facilities, thegrowth of USCIS, the timing of facility

projects, and the cost of construction.Many facility projects that arescheduled for completion in FY 2010commenced in FY 2008. The additionalspace was acquired based on increasedstaffing levels (a direct result of the FY2008/2009 Fee Rule enhancements).Outside of the acquisition of newfacilities, annual rent costs increase dueto higher operating costs (such asutilities) that USCIS must pay to theGeneral Services Administration.

Table 3 summarizes adjustments tothe FY 2009 cost baseline, as well as thecost increases and decreases to reach theFY 2010 and FY 2011 cost baselines.Overall, the IEFA cost baselinedecreases by approximately 1.5 percentin FY 2010 from FY 2009 and increases

by 2.7 percent for FY 2011.

b. Program Increase

USCIS has included only one programincrease, encompassing $30 million ininfrastructure funding to support thetransformation of USCIS operationsunder its transformation program. Toimprove operational efficiency, enhancecustomer service, and increase nationalsecurity, USCIS is centralizing andconsolidating the electronicenvironments used for case processingand management and to standardize andimprove business processes. A largeportion of this effort is dedicated todeveloping and integrating informationmanagement systems. USCIS willmigrate from a paper file-based, non-integrated systems environment to anelectronic customer-focused, centralizedcase management environment for

benefit processing. This transformationwill allow USCIS to streamline benefitprocessing, eliminate the capture and

processing of redundant data, andreduce the number of and automate itsforms. This process will be a phasedmulti-year initiative to restructureUSCIS business processes and relatedinformation technology systems.

Direct transformation program costsare currently funded through premiumprocessing fees. Some supportinginfrastructure upgrades outside of the

Transformation Program are necessaryto enable implementation such asupgrades to existing network,communication, and supportingsystems. USCIS is assuming a $30million program increase each year, fora total of $60 million in additional costsover 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 thesame period of FY 2006, as applicants

attempted to file before the July 30, 2007fee adjustment and in response toadjustments made by the Department of State (DOS) to its July 2007 visa

bulletin. This filing surge created adelay in receipting, which led to anincrease in revenue at the beginning of FY 2008. The additional applicationsreceived were charged lower pre-FY2008/2009 Fee Rule fees. The increase

in early filings meant that FY 2008application levels were substantially

below expectations. The decrease in FY2008 filings began the last two quartersof FY 2008 and continued throughoutFY 2009. IEFA revenue for FY 2008 was$75 million below the estimated FY2008 projection of $2.329 billion,despite an estimated $300 million of FY2007 applications receipted in FY 2008.IEFA revenue for FY 2009 was $345million below the $2.329 billionprojection.


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Actual FY 2009 IEFA revenueincludes the revenue associated withthe temporary protected status (TPS)registration that was not included in theFY 2008/2009 Fee Rule projections. Inorder to have a more reliable budgetestimate upon which to base its fees,USCIS chose not to rely on temporaryfunding sources such as TPS that are

subject to being discontinued annually.Therefore, USCIS cannot build TPS costand revenue into long-term plans. Thusthe fees proposed in this rule are basedon the TPS Program for re-registrants of certain nationalities not continuing andtheir associated fees not being collected.When estimated TPS revenue of $120million is factored out, the IEFArevenue was $465 million below the FY2008/2009 Fee Rule projections.

USCIS fee revenue collections areaffected by many things including the

economy, debate in Congress overimmigration legislation, and businesscycles. A significant downward trend inemployment benefit receipts in FY 2009suggests that the primary cause of reduced receipts was the downturn inthe economy. Employment-basedworkload, adjustment of status andnaturalization requests—both primary

consumers of work hours and sources of revenue—were also significantly lowerthan FY 2007 receipts. In addition, thereis anecdotal evidence that there was a‘‘surge’’ in the volume of certainapplications, the Application forNaturalization in particular, just beforethe previous fee rule went into effectthat may have had an impact onapplication volume in FY 2009. The feeincrease may have been the reasons forthis surge, although other factors, suchas the immigration legislation that was

considered but not enacted by Congressin 2007, and the 2008 Presidentialelection, are believed to have had animpact on filing volumes during FY2008.

Given the downward revenue trendfor FY 2008 and FY 2009, USCIS hasformulated conservative volume andrevenue projections. Overall, this fee

review assumes that baseline revenuewill decline from an FY 2008/2009 FeeRule projection of $2.329 billion to$2.056 billion, a decrease of approximately 12 percent. Thisdetermination is based on a workloadvolume reduction from the FY 2008/2009 projections of approximately 1.6million benefit requests (including

biometrics) and a fee-paying volumereduction of 827,689. See 72 FR 29851.Table 4 summarizes the projected costdifferential.

Historically and for the purpose of thefee review, USCIS has reported costsand revenue using an average over the

biennial time period. In Table 5, FY2010 and 2011 costs and revenue areaveraged to determine the projected fee

rule revenue and cost amounts. Basedon current immigration benefit and

biometric service fees and projectedvolumes, fees are expected to generate$2.056 billion in annual revenue in FY2010 and FY 2011. For the same period,the average cost of processing those

benefit requests is $2.417 billion. Thiscalculation results in an average annualdeficit of $361 million.

3. Refugee and Asylum Surcharge

The President’s FY 2010 Budgetrequested $200 million to eliminateestimated asylum and refugee

surcharges. See Office of Managementand Budget, Budget of the United StatesGovernment, 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, contingentupon conforming rulemaking to adjustthe surcharges accordingly (i.e., the $50million represents an annualized figureof $200 million, appropriated in theexpectation that it will fund the finalquarter of FY 2010 rather than the entireyear). DHS Appropriation Act 2010, 123

Stat. at 2164–5. Costs of refugee andasylum processing are currently borne

by all fee-paying applicants as asurcharge applied to each fee-payingimmigration benefit request. See 72 FRat 29859 (all immigration benefit and

petition fees include a total of $72 in‘‘surcharges’’ to recover asylum andrefugee costs, and fee waiver andexemption costs). While consistent withthe Immigration and Nationality Act,this surcharge raises fees for thoseapplying for other benefits. Estimatedcosts in these areas include:

• The budgets of both the Refugeeand Asylum Divisions of the Refugee,Asylum, and International Operations(RAIO) Directorate, along with the costof RAIO Headquarters;

• Five percent of the InternationalOperations (IO) office, representing the

portion of IO that completes refugeework;• 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 aportion of the surcharge for FY 2010representing one-quarter of the fiscalyear. DHS Appropriation Act 2010, 123Stat. at 2164–5. President Obamarequested an appropriation fromCongress of $207 million to replace the

full, annualized costs of these activitiesin FY 2011. Office of Management andBudget, Budget of the United StatesGovernment, 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 2011appropriations, surcharges for thiscategory of costs will be eliminatedwhen this proposed rule is promulgatedas a final rule and becomes effective. If the requested appropriation is notenacted, or a different amount isappropriated, the final rule will adjustthe fee schedule accordingly. See Table16 (comparative fee schedule with andwithout requested appropriations).

4. Military Naturalizations

Service members in any of the

branches of the U.S. Military who meetcertain requirements may apply fornaturalization and are exempt frompaying the fee for the Application forNaturalization (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). Congressprovided $5 million in FY 2010 to coverthe estimated cost to USCIS of processing military naturalizationapplications. DHS Appropriation Act2010, Public Law 111–83, 123 Stat. at2164–5. As recognized by Congress inproviding this appropriation, these costs


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should not be borne by other fee-payers,particularly since this volume increasesas the Department of Defense expandsits recruitment efforts to certain aliensand other than lawful permanentresidents. The estimated cost is basedon a projected workload of 9,500

military naturalizations multiplied bythe current fee of $595. The FY 2011Budget Request of $5 million inappropriations for the Department of Defense is reflected in the recalculationof the proposed fees. See 2011 BudgetRequest, at 521–2. If Congress

appropriates a different amount, the feeswill be adjusted accordingly in the finalrule. Table 5 depicts the cost andrevenue differential after appropriationsfor refugee, asylum, and militarynaturalizations are assumed.

5. Proposed FY 2011 Appropriations forSystematic Alien Verification forEntitlements (SAVE) Program and the

Office of CitizenshipThe $385,800,000 for USCIS fundingin the FY 2011 Budget Request seeksappropriations to cover the estimatedcost of the SAVE program ($34 million)and the Office of Citizenship ($18million) for FY 2011. See 2011 BudgetRequest, at 521–2. If Congressappropriates a different amount, the feeswill be adjusted accordingly in the finalrule. The fees proposed in this rule are

based on the costs of the SAVE programand the Office of Citizenship not beingfinanced by fee revenue and, instead,paid with appropriated funds. The

baseline costs (without programincreases) are approximately $26.1million in FY 2011. If appropriations are

not approved for these activities, USCISwill be required to adjust fees to reflectcosts for the programs.

The proposal follows initial stepstaken within enacted FY 2010appropriations for USCIS fee reform thatmoved some asylum, refugee, andmilitary naturalization costs out of thefee structure. The purpose of this feereform is to improve the linkage

between fees paid by USCIS applicantsand petitioners and the cost of programsand activities to provide immigration

benefits. Because of fee exemptions for beneficiaries of asylum, refugee, and

military naturalization, fee surchargeswere added to other applications andpetitions. 72 FR 29859. Similarly, costs

of SAVE and the Office of Citizenshipare currently only partially supported by fee revenue. Additional fee reform inthese areas moves these costs out of theUSCIS fee structure and improves theprecision and transparency of USCISfees.

The IEFA cost baseline is increasingwhile anticipated volumes and revenueare expected to decrease compared tothe last fee rule. Table 6 depicts the costand revenue differential afterappropriations for refugee, asylum,military naturalizations, SAVE, and theOffice of Citizenship are assumed.

6. Establish an Immigrant VisaProcessing Fee

DHS proposes to establish a new feefor immigrant visas to recover the coststo USCIS for related activities.Immigrant visas are issued by theDepartment of State (DOS) in overseasconsulates to foreign nationals seekingto reside permanently in the UnitedStates. INA section 221–222, 8 U.S.C.1201–1202. Although DOS issues thevisas, USCIS must complete several visaapplication-related activities prior toissuance of a permanent resident card.USCIS must create a file, review the

application, correspond with theapplicant, and produce and issue a

secure card upon approval. DOS chargesfees for immigrant visas, but USCIS doesnot. The DOS fee is currentlyestablished, using DOS’s fee-settingmethodology, at $355. 22 CFR 22.1. TheDOS fee was established to recover DOScosts only, and the USCIS FY 2010/2011Fee Review was performed withoutconsideration of fees paid by applicantsto DOS. Other USCIS applicants havehistorically borne the cost of processingthis immigrant visa workload.

The USCIS fee only reflects the costsincurred by USCIS. Although USCIS

projects an annual volume of 430,000requests, in anticipation of the timing of implementation of a final rulepromulgating the fee, USCIS onlyaccounts for revenue for the second half of the first fiscal year, or 215,000immigrant visas. USCIS projects that thecollection of the immigrant visa fee will

be implemented beginning in FY 2011.The proposed fee based on the workloadanalysis is $165. The additional revenuefrom implementing this fee will reduce


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9See ‘‘Adjudication of EB–5 Regional CenterProposals 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.

fees paid by, and fee increases chargedto, other applications.

7. Civil Surgeon Program Fees

DHS proposes to establish new feesfor processing civil surgeondesignations. Medical examinations areneeded for most adjustment of statuscases (Form I–485) and requests for V

nonimmigrant status (Form I–539). Themedical examination must be conducted

by a civil surgeon who has beendesignated by USCIS. USCIStraditionally has not charged civilsurgeons seeking this designation a feeto recover the costs associated with thisapplication; these costs have beenrecovered as part of the administrativeoverhead charged to all fee-payingapplicants and petitioners. The processfor receiving and reviewing theinformation required for a civil surgeondesignation, however, is labor intensive.For USCIS to continue to provide civil

surgeon designations in a timely mannerand to further refine the cost analysisand fee setting, USCIS must establish afee of $615 to cover the cost of processing requests for suchdesignations. Collecting a fee for theseservices will ensure that other fee-paying applicants do not bear thesecosts.

8. EB–5 Regional Center Designation Fee

DHS proposes to add a fee foradjudication of regional centerdesignations under the ImmigrantInvestor Pilot Program. See Public Law

102–395, tit. VI, sec. 610, 106 Stat. 1874(1992) (8 U.S.C. 1153 note). Thisprogram, implemented by Congress in1990 to stimulate the U.S. economy,allows certain foreign investors toobtain lawful permanent resident statusin the United States as EB–5 immigrants

by making certain levels of capitalinvestment and associated job creationor preservation. One aspect of thisprogram (the Regional Center PilotProgram) encourages foreign investors toinvest funds in a distinct economic‘‘regional center.’’ A regional center is aneconomic unit, public or private,engaged in the promotion of economicgrowth, improved regional productivity,job creation, and increased domesticcapital investment. See 8 CFR 204.6(e).An individual or entity interested inparticipating in the Regional CenterPilot Program must file a RegionalCenter Proposal with USCIS to requestUSCIS approval of the proposal anddesignation of the entity as a regionalcenter. The proposal must provide aframework within which individualalien investors affiliated with theregional center can satisfy the EB–5

eligibility requirements and createqualifying EB–5 jobs.9

USCIS’s fee study found that thesedesignations are exceptionally laborintensive for USCIS. Historically, thecost of this designation process has been

borne by all fee-paying applicants and beneficiaries. Accordingly, to refine thecost accounting and fee structure, and to

make the distribution of costs moreequitable, DHS proposes a new fee of $6,230 per request for designation.

9. Employment AuthorizationDocument Fees for Applicants Covered

by Deferred Enforced Departure (FormI–765)

DHS proposes to collect a fee for anApplication for EmploymentAuthorization and the associated

biometrics for aliens granted deferredenforced departure (DED). DHS alsoproposes to remove an extraneousprovision from the employmentauthorization regulations relating toaliens granted ‘‘extended voluntarydeparture by the Attorney General as amember of a nationality group pursuantto a request by the Secretary of State.’’8 CFR 274a.12(a)(11).

In the Immigration Act of 1990,Congress established the temporaryprotected status (TPS) program andinstructed that TPS constitutes theexclusive authority of the AttorneyGeneral (now the Secretary of HomelandSecurity) to permit deportable orparoled aliens to remain in the UnitedStates temporarily because of theirparticular nationality. See INA sec.

244(g), 8 U.S.C. 1254a(g). Accordingly,since 1990 neither the Attorney Generalnor the Secretary have designated aclass of aliens for nationality-based‘‘extended voluntary departure,’’ andthere no longer are aliens in the UnitedStates benefiting from such adesignation. Accordingly, DHS proposesto remove the obsolete reference toextended voluntary departure.

On occasion, however, Presidentshave issued executive orders ormemoranda directing the deferral of enforced departure from the UnitedStates of certain nationals of a particular

country for temporary periods and havedirected that eligible individuals beprovided employment authorizationduring 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 HomelandSecurity Janet Napolitano ExtendingDeferred Enforced Departure forLiberians (Mar. 20, 2009), available athttp://www.whitehouse.gov/ the _ press _office/Presidential- Memorandum-Regarding-Deferred- Enforced-Departure-for-Liberians. DHSproposes changes that will clarify its

authority to process and collect a fee forEADs and associated biometrics foraliens eligible for DED. Proposed 8 CFR103.7(b) and 274a.12(a)(11). Collectionof the EAD fee from individuals who arecovered by an occasional Presidentialdirective to defer their departuretemporarily will facilitate adjudicationof the benefit, and the production of secure, biometric EADs, as with otherEAD-eligible groups, such as aliensgranted TPS. An EAD applicant mayrequest a fee waiver based on aninability to pay the fee. The newprovision will still be in regulations

governing work authorization incidentto status. 8 CFR 274a.12(a). Theproposed change specifies that workauthorization will be provided underterms and conditions set by theSecretary consistent with the President’sDED directive. Proposed 8 CFR274a.12(a)(11).

C. Summary

Projected costs are expected to exceedprojected revenue. This differentialmust be addressed with increasedrevenue, notwithstanding newappropriations and cost adjustments.Increased revenue will be derived from

new immigrant visas, civil surgeondesignations, and immigrant investors.Increased revenue will also be derivedfrom a weighted average fee increase onexisting immigration benefits. Some feeswill be reduced due to lower processingcosts; other fees will increase. The levelof fee increase necessary to align costsand revenue is a weighted average of 10percent after adjusting prices to accountfor reduced surcharges and other costsfrom appropriations for SAVE, Office of Citizenship, refugee and asylum costs,and military naturalizationreimbursements from DOD. USCIS will

adjust fees consistent with the details of this supporting documentation if proposed appropriations are notapproved.

D. Performance Improvements

In the FY 2008/2009 fee rule, USCIScommitted to a series of performanceimprovements and reduced processingtime goals. For the FY 2010/2011period, USCIS is identifying in this feerule a new set of goals and performanceimprovements that are aimed atincreasing accountability, providing


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

11Government 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 ReviewsCould Improve Immigration and NaturalizationUser 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-OffsIllustrated by USCIS’s Immigration and Naturalization Fees, Testimony before theSubcommittee 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 amongequity, efficiency, revenue adequacy, andadministrative burden.’’).

12Federal 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).

13The Staffing Allocation Model is a model usedto calculate estimates of staffing types and levelsnecessary to undertake specific workload (e.g.,applications and petitions) levels at targetprocessing times.

better customer service, and increasingefficiency. These enhancementsinclude:

• Expanding the use of SystemsQualified Adjudication to a larger shareof USCIS’s workload. USCIS expects allForm I–90, I–765, and I–821 re-registration applications will besupported by electronic adjudication bySeptember 2011. In addition toimproving the processing of theserequests, this step will provideadjudicators with more time to focus onmore complex applications.

• Begin Deployment of Transformed Processes and System. USCIS expects todeploy the initial increment of itstransformation program by the end of FY 2011. As one of the Administration’sHigh Priority Performance Goals,10 USCIS has committed to ensuring that atleast 25 percent of applications will beelectronically filed and adjudicatedusing the new transformed integrated

operating environment by FY 2012.• Integration of productivity

measures in future fee review methodology. Beginning with the nextfee rule, USCIS will integrateproductivity measures into theunderlying methodology USCIS uses toconduct fee studies. This means thatefficiency gains resulting frominformation technology investments andprocess improvements will be clearlyidentified, including the cost savingsthat occur due to these changes,ensuring that those savings areincorporated into new fee amounts.

V. Fee Review Methodology

When conducting a fee review, USCISreviews its recent cost history, operatingenvironment, and current service levelsto determine the appropriate method toassign costs to particular benefitrequests. The methodology used in thereview reflects a robust capability tocalculate, analyze, and project costs andrevenues.

USCIS uses commercially availableactivity-based costing (ABC) software tocreate financial models to calculateimmigration benefit requests and

biometric service fees. Following the FY2008/2009 Fee Rule, USCIS identifiedseveral key methodology changes toimprove the accuracy of the ABC model.Improvements were also suggested bythe Government Accountability Office(GAO) following a review andcompletion of the FY 2008/2009 Fee

Rule.11 These changes includeanalyzing cost allocation methods toevaluate methods that may offer greaterprecision and fully documenting therationale and any related analysis forusing the assumptions and costassignment methods selected. USCIScontinues to update the ABC modelwith the most current information for

fee review and cost managementpurposes.

A. Background

ABC is a business management toolthat assigns resource costs tooperational activities and then toproducts and services. Theseassignments provide an accurate costassessment of each work streaminvolved in producing the individualoutputs of an agency or organization.ABC is a preferred cost accountingmethod endorsed by the FASAB andenables USCIS to conform to Managerial

Cost Accounting Concepts andStandards for the FederalGovernment.12

1. ABC Methodology

a. Resources

The total resource base for the ABCmodel is the FY 2010/2011 cost baselineand assumes that USCIS will receive$55 million in FY 2010 and $238million in FY 2011 from appropriationsto replace surcharges. The resulting$2.271 billion (see Table 6) is theestimated cost of FY 2010 and FY 2011resources necessary to fund the full cost

of processing immigration benefitrequests and biometric services forwhich USCIS charges a fee, as well asthe cost of providing similar services atno cost. This represents the first stage of the ABC process.

The ABC model structure for FY2010/2011 was designed to closely

resemble the structure of the FY 2009Annual Operating Plan (AOP). The AOPis the detailed budget execution planUSCIS establishes at the beginning of the fiscal year consistent with theCongressionally approved fiscal yearappropriation and forecasted feerevenue. The model includes the sameUSCIS offices and individual line items

associated with these offices. Thisstructure provides a common formatand creates a means to project out-year

budgets and potentially trackcommitments, obligations, andexpenditures by the operating plan lineitem description in the model.

The ABC model structure for the FY2008/2009 Fee Rule was based on theFY 2007 AOP. Headquarters payroll andagency-wide non-payroll were verysimilar to the operating plan; however,payroll for field offices (Service Centers,District Offices, National BenefitsCenter, and National Records Center)

was broken down into sub-categoriessimilar to the internal USCIS StaffingAllocation Model (SAM).13

b. Resource Drivers and ResourceAssignment

ABC methodology uses resourcedrivers to assign resources to activities.Using the resource base of $2.271

billion, costs are assigned to activitiesusing resource drivers. All resourcecosts are assigned to activities, so thetotal resources in the model equal thetotal cost of activities. This representsthe second stage of the ABC process.

A commonly used resource driver in

ABC is an organization’s number of employees and the percentage of timethey spend performing certain activities.The FY 2010/2011 ABC model uses thismethodology to assign resources toactivities. The ABC model assignsresources to activities using authorizedpositions by funding stream (fund code)and Program, Project, and Activity(PPA) for each USCIS office. This driveris then weighted by the percentage of on-board positions performing specificactivities within each USCIS office.These percentages are determined usinga payroll position title analysis. Thepayroll position title analysis identifiesthe percentage of each office that isdedicated to the nine ABC activities (formore information see the section titled‘‘Activities’’ below) by reviewing thetitles and position descriptions of itsworkforce.

Other resource drivers in the FY2010/2011 model include a direct driver


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14The USCIS Performance Analysis System (PAS)is an online data entry and retrieval system used totrack workload accomplishments and humanresources expenditures.

15 In January 2010, USCIS realigned its structureand management functions that created new officesand modified the reporting relationship betweenothers. For the purpose of this fee review, theprevious organizational chart, valid as of February2009, was used.

16The only portion of the Office of Transformation Coordination that is treated as aHeadquarters office is funding for staff (payroll,overtime, and awards) and related general expenses.Other programmatic costs are funded by premiumprocessing revenue.

and a rent driver that are similar tothose used in the FY 2008/2009 model.The direct driver assigns specificresources directly to activities. Forexample, the contract issued for USCISApplication Support Centers (ASCs)only pertains to the capture biometricsactivity. Therefore, the costs associatedwith this contract are assigned directly

to the capture biometrics activity usinga direct driver. The rent driver assignsestimated rent costs for each fiscal yearto each USCIS office based on projectedFY 2010 rent costs by location. Otheroverhead costs, such as the Office of Information Technology, service-levelagreements, and the DHS workingcapital fund costs are distributed to eachUSCIS office on a prorated basis byauthorized positions.

The FY 2008/2009 model used totalauthorized positions as the primaryresource driver. For Headquartersoffices, this driver was weighted by the

estimated percentage of time spentperforming certain activities, based onoperational knowledge. For field offices,total positions were weighted by thetime spent performing certain activities,

based on operational knowledge as wellas time percentages determined usingofficer hour data from the USCISPerformance Analysis System (PAS).14

The allocation methods in the FY2008/2009 Fee Rule, as well as the FY2010/2011 Fee Review, are consistentwith the FASAB Standard 4 onmanagerial cost accounting concepts.They fulfill the mandate to directly tracecosts when feasible, and to either assign

costs on a cause-and-effect basis orallocate them in a reasonable andconsistent way.

c. Activities

In ABC, activities are the critical link between resources and cost objects. Thisrepresents the third stage of the ABCprocess. Projected operating costs(resources) for FY 2010/2011 are spreadto nine activities. They are:

• Inform the Public involvesreceiving and responding to applicantand petitioner inquires throughtelephone calls, written correspondence,or walk-in inquiries;

• Capture Biometrics involves theelectronic capture of biometricinformation (fingerprint andphotograph), background checksperformed by the FBI, and use of thecollected biometrics for verifying theidentity of the applicants;

• Intake involves mailroomoperations, data capture and collection,

file assembly, fee receipting, and fileroom operations;

• Conduct Interagency Border Inspection System (IBIS) Checksinvolves the process of comparinginformation on applicants, petitioners,

beneficiaries, derivatives, andhousehold members who apply for animmigration benefit against various

Federal lookout systems;• Review Records involves searching

and requesting files; creating temporaryand/or permanent alien files;consolidating files; connecting returnedevidence with application or petitionfiles; pulling, storing, and moving filesupon request; auditing and updatingsystems on the location of files; andarchiving inactive files;

• Make Determination involves thetasks of adjudicating immigration

benefits; making and recordingadjudicative decisions; requesting andreviewing additional evidence;interviewing applicants; consulting withsupervisors or legal counsel; andresearching applicable laws anddecisions on non-routine adjudications;

• Fraud Detection and Preventioninvolves activities performed by theFraud Detection and National SecurityDirectorate in detecting, combating, anddeterring immigration benefit fraud, andaddressing national security andintelligence concerns;

• Issue Document involves the tasksof producing and distributing securecards that identify the holder as an alienand also identify his or her status oremployment authorization;

• Management and Oversight involves activities in all offices thatprovide broad, high-level leadership tomeet USCIS goals.

Management and Oversight is anactivity designed to capture managerialactivities at Headquarters and in thefield. This activity provides a morespecific depiction of the workperformed by certain offices. AllHeadquarters offices 15 are allocated toManagement and Oversight in theirentirety, including the ExecutiveSecretariat; Office of Administration;Office of the Chief Financial Officer;

Office of Citizenship; Office of Communications; Office of Congressional Relations; Office of Emergency Preparedness andCoordination; Office of EqualOpportunity & Inclusion; Office of Human Capital, Training, andManagement; 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 TransformationCoordination;16 and Office of Records.

The payroll title analysis allowedUSCIS to identify leadership positionsin the field offices that should be

allocated to the Management andOversight activity. Projected operatingcosts for FY 2008/2009 were spread tothe nine activities (Inform the Public,Intake, Capture Biometrics, ConductIBIS Check, Review Records, FraudDetection and Prevention, MakeDetermination, and Issue Document).Management and Oversight was not aseparate activity.

d. Activity Drivers and ActivityAssignment

The fourth stage in the ABC processis driving the activity costs to theimmigration benefits (cost objects).Activity costs are primarily spread toimmigration benefit requests based onthe percentage of total projectedvolume, as similar time and effort areinvolved in processing each application.There are unique drivers used for two of the activities—Capture Biometrics andMake Determination. The MakeDetermination activity is spread torequests by a factor of averageadjudication time and projected volume(i.e., projected adjudication hours) asthese metrics pertain directly to theadjudication function and can varysignificantly by application. The general

premise is that the more time spentadjudicating a request, the higher thefee. Exceptions to this general rule occurwhen volumes skew unit costs (e.g.,high-volume applications tend to havelower unit costs since costs are allocatedover a higher volume base) or additionalactivities are performed (e.g., someapplications require the creation of secure cards). Capture Biometrics uses adirect activity driver to drive all of thecosts associated with this activity toBiometric Services.

Activity costs are spread toimmigration benefit requests by the

locations where they are processed apartfrom the Intake activity. Intake isprimarily performed at the Lockbox;however, some intake is performed atthe field offices. Due to varying costs atfield locations, spreading intake costs bya percentage of total field office costsintroduces inaccurate variability in


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17Applicants submitting a Form I–131, TravelDocument—Advance Parole, are not required to paythe biometrics fee.

18Amerasian applicants are the only class of I–360 applicants required to pay for biometricservices.

intake costs by request. There is littlevariability in the intake process byrequest type and therefore, intake costsare spread using an average cost perrequest. Ultimately, nearly allimmigration benefit request types will

be received only by Lockbox locations.

Activity costs for the FY 2008/2009

Fee Rule were spread by projectedvolume weighted by averageadjudication time for the MakeDetermination activity. All otheractivity costs were spread using anaverage activity cost per application.

e. Cost Objects

Cost objects are the immigration benefits and biometric services forwhich USCIS charges a fee. Driving

activity costs to the cost objects is thefinal stage of the ABC process.

Application costs were derived forvirtually every immigration benefit thatUSCIS adjudicates including those filedfor asylum and refugee protection,Temporary Protected Status, PremiumProcessing, and H–1B nonimmigrantpetitions. The IEFA cost of requests for

which no revenue is recovered isredistributed to other applications in aprorated manner similar to the way theFY 2008/2009 Fee Rule handledrequests. Temporary Protected Status(Form I–821), Nicaraguan Adjustmentand Central American Relief Act(NACARA) (Form I–881)—Suspensionof Deportation or Application SpecialRule, are temporary programs. ThusUSCIS does not rely on their revenue in

the FY 2010/2011 Fee Review tosupport baseline operations, althoughtheir costs are analyzed.

A separate fee for biometric serviceswas also derived. The proposed rulecontinues to provide for a separate $85

biometric fee to accommodate nationalsecurity and fraud detection decisions

that may require extension of biometricrequirements to additional immigration benefit requests that do not alreadyinclude that fee. Table 7 outlines thefees for immigration benefits thatrequire biometric services. These feesassume receipt of $283 million inappropriated funds in FY 2011 forrefugee, asylum, military naturalization,SAVE, and Office of Citizenshipactivities.

Table 8 outlines the fees forimmigration benefits if Congress does

not enact the requested appropriationsfor SAVE and the Office of Citizenship.


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19See USCIS Office of Citizenship Vision and Mission at http://www.uscis.gov/portal/site/uscis/ menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/ ?vgnextoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5e314c0cee47210V gnVCM100000082ca60aRCRD.

2. Low Volume Reallocation

USCIS is using its fee settingdiscretion to adjust certain applicationand petition fees when the low volumethat is projected leads to particularlyhigh unit cost increases. USCISdetermined in its fee study that thecombined effect of cost, revenueestimates, and methodology results inan inordinate fee burden being placed

on these requests relative to other benefit requests. For example, withoutreallocation for an orphan petition, thefee for that form would be $1,455.USCIS believes it would be contrary tothe public interest to impose a fee of this size on an estimated 25,000potential adoptive parents each year.Similar disparate effects occur for all of the form types that are being adjustedusing a low volume reallocation. Thus,USCIS has decided, based on itsexperience in carrying out immigration

benefit programs, assessing fees, and thecharacteristics of various applicants,

that reasonable adjustments based onsuch equitable considerations arejustified.

USCIS will therefore limit the feeincrease for these forms to an increaseequal to the weighted averagepercentage fee increase of allimmigration benefits. The additionalcosts from these form types are thenprorated to other benefits. This samemethodology was used effectively in theFY 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 toForm I–360 applicants who are notalready exempt from paying the fee);

• Application for Waiver of Groundsof Inadmissibility (Form I–690);

• Application to File Declaration of Intention (Form N–300);

• Application to Preserve Residencefor Naturalization Purposes (Form N–470);

• Orphan Petitions (Forms I–600/I–600A and I–800/I–800A,);

• Notice of Appeal or Motion (FormI–290B);

• Request for Hearing on a Decisionin Naturalization Proceedings (Form N–336); and

• Waiver Forms (Forms I–191, I–192,I–193, I–212, I–601, I–612).

Public comments would beparticularly useful on whether tomaintain fees for certain low volume

applications and petitions at levels below the ABC model.

3. Application for Naturalization

DHS proposes to provide specialconsideration to the fee for anApplication for Naturalization (Form N–400), by limiting the fee at its currentlevel of $680 ($595 current fee with the$85 biometrics fee). USCIS receivedmany comments on the FY 2008/2009Fee 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 specialconsideration given the unique nature of this benefit to the individual applicant,the significant public benefit to theNation, and the Nation’s proud traditionof welcoming new citizens. DHS

believes this action to retain thenaturalization fee at the current levelwill reinforce these principles, allow

more immigrants to fully participate incivic life, and is consistent with otherDHS efforts to promote citizenship andimmigrant integration.19 For thesereasons, and based on its experience inadministering the naturalizationprogram, DHS proposes to retain the feefor naturalization at the current levelover the FY 2010/2011 biennial period.

DHS recognizes that limiting the fee atits current level would lead to thesubsidization of naturalization by otherfee-paying applicants as allowed by INAsection 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 adjudicatingthat petition, or spreading the costs of administration of USCIS more fullyamong non-naturalization applicants,may be fairly interpreted as providingthe naturalization applicants with a partof that service ‘‘without charge.’’ As


http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5e314c0cee47210VgnVCM100000082ca60aRCRD










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20The fees established in the final rule may vary based on cost figures that are current when the final

rule is drafted, enacted appropriations, andadjustments made as a result of public commentson all fees, waivers, exemptions, reallocations, andgeneral methodology. Adjustment of one fee will

result in changes in the fees for other benefitrequests (raising or reducing fees) depending on theaction. The effect of a change in one fee on all otherfees cannot be precisely stated because of the otheradjustments that will be made.

Costs not recovered with respect to immigration benefits for which the fee is set below the ABCmodel amount are spread to other immigration benefits by the ABC model output amount. Firstthese redistributed costs are added to all non-heldimmigrant benefits. Then these redistributed costs,as an average, are spread to the fee-paying volumeof each of the non-held immigrant benefit fees. Thismethodology is consistent with the methodologyused in the FY 2007 Fee Rule to spread these costsequitably to the benefit instead of applying a fixed‘‘surcharge.’’

discussed in the Authority section of this rule, DHS is proposing to shift thisamount to other applicants as part of full cost recovery in compliance withINA section 286(m).

This proposal would result in settingthe fee for the Application forNaturalization (Form N–400) at lessthan what the ABC model generates as

the full cost of adjudicating thatapplication. A model-based fee fornaturalization would have increased thecurrent fee level by as much as $60 perapplication. DHS is anticipatingreceiving an annual volume of 684,390fee-paying naturalization applications(Form N–400); accordingly, forgoing the$60 fee increase for the Form N–400thus would reduce fee collections byapproximately $41 million, as comparedto using the adjusted fee. As a result,retaining the current fee will spread thisportion of the cost from naturalization

applicants to other applicants andpetitioners as part of full cost recoveryin implementing INA section 286(m), 8U.S.C. 1356(m). The estimated feeimpact of this policy on otherapplication and petition types is aweighted average of $8.00 perapplication and petition (i.e., the impactis greater or less than $8.00 for each

application and petition, with theweighted average being $8.00). DHS isspecifically requesting comments onthis policy decision. The comments will

be considered in determining whetherthe final rule provides a fee of $680 asproposed or a higher amount ascalculated in the FY 2010/2011 FeeReview using ABC methodology and allother factors that are part of calculationsfor the final rule.20 Table 9 illustrates

the impact of this proposed policydecision across all fee payingapplications and petitions.BILLING CODE 9111–97–P


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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 IEFAprovides that fees may be set at a levelto fund the full cost of processingimmigration benefit requests and thefull cost of providing similar benefits toasylum and refugee applicants. INA sec.286(m); 8 U.S.C. 1356(m). In the FY2008/2009 Fee Rule, USCIS attached a$72 surcharge to every immigration

benefit request representing the cost of workload for asylum and refugeeapplicants as well as the cost of

estimated fee waivers and exemptions.72 FR 29859. For the fees proposed inthis rule, USCIS will exclude the costsincurred for refugee, asylum, andmilitary naturalization workload fromthe ABC model. Appropriated fundingfor these purposes was requested andpartially approved for FY 2010;additional appropriations to fundoperations were requested for FY 2011.

International Operations (IO)processes immigration benefits andpetitions, facilitates the internationaladoption process, and serves theimmediate family members of U.S.

citizens residing abroad who want toadjust their status. In the FY 2008/2009Fee Rule, IO’s costs were part of theRefugee/Asylum surcharge applied toall fee-paying applications andpetitions. In this proposed rule, theportion of IO’s budget attributable toprocessing refugee benefits has beenincluded in the requested appropriation.The remaining costs are included in theIEFA cost baseline and recovered by feerevenue. The portion of IO thatprocesses fee-paying benefits will befunded using IEFA revenue. If the FY

2011 request for appropriated funds isnot enacted or enacted at a reducedlevel, the model will be revised and the

final fee structure will reflect the costsof these activities.

2. Fee Waivers and Exemptions

DHS proposes to modify theregulatory language and clarifyeligibility for an individual fee waiverin 8 CFR 103.7(c). Where appropriate inthe IEFA fee structure, USCIS exemptscertain classes of applicants andpetitioners from paying fees, and certainapplicants may be granted a fee waiverdue 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 8CFR 103.7(d) to provide USCIS with thediscretion to approve and revokeexemptions from fees, or provide thatthe fee may be waived for a case or classof cases that is not otherwise providedin 8 CFR 103.7(c). To exercise thisauthority, the Director of USCIS mustdetermine that such an exemption orwaiver would be in the public interestand the exception is not inconsistentwith other applicable law or regulation.DHS proposes that this exceptionauthority will be vested with the

Director of USCIS and cannot bedelegated to any other official other thanhis or her deputy. USCIS plans to issueinternal guidance that will requirerequests for a Director’s waiver to besent to the USCIS District Office. Theguidance will require the District Officeand applicable program directorate torecommend approval, outline thereasons for the recommendation in theirtransmission of the waiver or exemptionrequest to the Director, and certify thatno other law or regulations are violated

by granting the waiver or exemption.

In addition, DHS proposes to removethe separate fee waiver provisions thatrelate to applications for temporary

protected status (TPS). See 8 CFR244.20. The applicant must show thathe or she is unable to pay the prescribedfees to establish eligibility for a waiverof the fee for an application for TPS.Those requirements differ only slightlyfrom the more general fee waivereligibility in 8 CFR 103.7(c) and theredundant provisions have been thesource of confusion. These proposedmodifications ensure that waivers andexemptions are applied in a fair andconsistent manner.

3. Immigrant Visa Processing Fee

DHS is proposing to collect a fee forprocessing immigrant visas. USCIS doesnot currently recover fees for the cost of processing visas issued overseas byDOS, although USCIS offices expendtime and effort to process those visas.This practice is inconsistent withExecutive Branch guidance in OMBCircular A–25 to recover the full cost of providing a service to the public.Historically, these costs were carried asoverhead and spread across all fee-paying applicants. By not collecting afee for this service while incurringsignificant associated costs, USCIS is

placing additional burdens on all fee-paying applicants. The fee proposed inthis rule for immigrant visas wascalculated at the amount necessary tofully recover the costs to USCIS forprocessing these requests. This new feewill result in a smaller increase in thefees proposed for other benefit requestsabsent this action.

While USCIS does not adjudicateimmigrant visas applications, USCISresources are required to complete theprocessing of this benefit when animmigrant visa is granted by a DOS


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

consular officer. An individualreceiving a visa from a DOS consulateoverseas receives visa documentationand his or her photograph in a sealedapplication package. The individualtakes the application package with himor her for use at the U.S. port of entry.At the port of entry, a U.S. Customs andBorder Protection (CBP) officer will

inspect the individual and fill outremaining information and collectremaining application documentation.CBP forwards the immigrant visapackage to USCIS for review and entryinto USCIS data systems. If a deficiencyis found, the visa case is referred to aUSCIS District Office for resolution.Typical deficiencies include missingdocumentation, missing biometricinformation, unacceptable photographs,and mismatches of admission stampinformation. Some of the deficienciesare resolved between USCIS and CBP.

When an immigrant visa is deemed

complete and satisfactory, USCIS entersthe data; scans photographs, signaturesand fingerprints; and issues apermanent resident card. USCIS ServiceCenters often take inquiries fromimmigrants until the card is received inthe mail. USCIS integrates visadocumentation within a central alienfile (A–File) and, if none exists, a newA–File is created and stored. Of the nineABC activities, the following activitiesapply directly to processing immigrantvisas:

• Intake—USCIS must receiveimmigrant visa packets from CBP,

perform data entry, and create a file foreach individual packet.• Review Records—USCIS must

ensure that inter-agency forms that areessential to the immigrant visa processare received from the appropriate sourceand collated into one A-file. Eachimmigrant visa application becomes arecord that must be stored, retrieved,and archived as needed.

• Issue Document —Each approvedimmigrant visa applicant receives apermanent resident card (green card)created by the USCIS IntegratedDocument Production office.

• Inform the Public—USCIS receivesand processes applicant and petitionerservice inquiries from immigrant visaapplicants related to their permanentresident status.

• Management and Oversight —Allapplications processed by USCISreceive a portion of the cost of high-level leadership and non-adjudicativesupport from Headquarters offices.

The proposed fee to service each of the immigrant visas and issue apermanent resident card, based on theseactivities, is $165.

4. EB–5 Regional Center Designation Fee

DHS is proposing an immigrantinvestor fee for individuals, State orlocal government agencies,partnerships, or any other businessentity requesting approval anddesignation to be a regional centerunder the Immigrant Investor PilotProgram (Pilot Program). See Public Law102–395, tit. VI, section 610, 106 Stat.1874 (1992) (8 U.S.C. 1153 note). Thisprogram is distinct in certain ways fromthe basic EB–5 investor program.Foreign investors are encouraged toinvest funds in an economic unit knownas a ‘‘regional center.’’ A regional centeris defined under 8 CFR 204.6(e) to meanany economic unit, public or private,engaged in the promotion of economicgrowth, improved regional productivity,job creation, and increased domesticcapital investment. USCIS regulationsestablish eligibility criteria for a regionalcenter and the related reporting

requirements. 8 CFR 204.6(m)(3). Inconjunction with the new fee, theregional center reporting requirementsare proposed to be clarified in this rule.The reporting requirements will make itclearer that the designation as a regionalcenter is subject to maintenance of theeligibility requirements, and theprovision of reports to USCIS showingcontinued compliance. Proposed 8 CFR204.6(m)(6).

The FY 2010/2011 fee study foundthat USCIS expends a lot of effort toadjudicate a request for designation asan approved EB–5 regional center.

These applicants do not pay fees tocover the costs incurred to carry out thisprogram’s activities. As a result, thecosts of staff and resources necessary tocarry out the regional center programhave been paid from revenue derivedfrom other applications. In addition toproviding a vehicle for fee collection,the standardized ‘‘Application forRegional Center under the ImmigrantInvestor Pilot Program,’’ (Form I–924);will clarify requirements for a regionalcenter document; improve the quality of applications; better document eligibilityfor the Pilot Program; alleviate content

inconsistencies among applicants’submissions; and support a moreefficient process for adjudication of applications.

Of the nine ABC activities, thefollowing apply directly to processingapplications for Regional Centers:

• Intake—USCIS must receiveapplications from individuals or entitiesdesiring to receive regional centerdesignation, perform data entry, andcreate a file for each individual packet.

• Review Records—USCIS mustensure that evidence essential to the

adjudications process is received fromthe appropriate source and collated intoone file. Each application becomes arecord that must be stored, retrieved,and archived as needed.

• Inform the Public— USCIS receivesand processes applicant and petitionerservice inquiries from applicants relatedto the status of their applications.

• Fraud Prevention and Detection—The authenticity of each applicationmust be analyzed in order to preventimmigration benefit fraud.

• Make Determination—The RegionalCenter application requires thesubmission of extensive documentationand statistical data concerning thegeographical region the center willaffect. Applicants must also providethorough business plans, analysis of thepotential economic impact the centerwill have, and proof of immigrationstatus for review by USCIS.


Based on these activities, a proposedfee of $6,230 has been calculated forservicing these applications. USCISestimates that it will receive an averageof 132 applications for regional centersper year. Based on the experienceUSCIS has in administering the regionalcenter and EB–5 investor program, andknowledge of the entities that file thetypical application, this fee is affordableand it is reasonable to collect it from theaffected applicants. For example, a

review of investment subscriptionagreements and limited partnershipmembership agreements provided insupport of recently submitted proposalsduring the USCIS adjudication processindicates that multiple investorstypically paid from $25,000 to $50,000each for the opportunity to invest in aproject, in addition to the minimuminvestment required by DHS regulationsto be a EB–5 investor.21 Thus, regardlessof the low annual volume estimate, nolow volume reallocation of the costs of the EB–5 investor program is beingproposed. Thus, the fee of $6,230 will

be collected from each applicant.5. Civil Surgeon Program

DHS is proposing a new fee forindividuals requesting civil surgeondesignation. Civil surgeons arephysicians who are authorized toconduct medical examinations that arerequired of applicants for certainimmigration 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.


http://www.uscis.gov/eb-5centers


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252, 264 (requiring the Secretary of HHSto make and enforce regulationsnecessary to prevent the introduction,transmission, or spread of communicable diseases from foreigncountries into the States). Section 232(b)of the INA, 8 U.S.C. 1222(b), providesfor officers of the United States PublicHealth Service (USPHS) to conduct

physical and mental examinations of arriving aliens. If there are not enoughUSPHS officers to conduct theseexaminations, section 232(b) providesfor the designation of civilianphysicians as ‘‘civil surgeons,’’ who arethen authorized to conduct theexaminations. Under section 451(b) of the Homeland Security Act of 2002,Public Law 107–296, 116 Stat. 2135,2195 (2002), the authority to designatecivil surgeons transferred on March 1,2003, from the Attorney General to theSecretary of Homeland Security. 6U.S.C. 271(b), 557; see also 8 CFR part

2.1. The Secretary of Homeland Securityhas delegated the authority to designatecivil surgeons to USCIS. The civilsurgeon must conduct all examinationsin accordance with TechnicalInstructions for the MedicalExamination of Aliens in the UnitedStates, adopted by the Centers forDisease Control and Prevention of theUnited States Department of Health andHuman Services. See http:// www.cdc.gov/immigrantrefugeehealth/ exams/ti/civil/technical-instructions-civil-surgeons.html. The INA providesthat officers of the United States Public

Health Service (USPHS) or civilsurgeons, when USPHS officers are notavailable, conduct physical and mentalexaminations of arriving aliens. INAsection 232(b), 8 U.S.C. 1252(b). Thecivil surgeon designation is required forphysicians wishing to conduct physicaland mental examinations of thoseseeking admission into the UnitedStates or applying for adjustment of status. Id.; 8 CFR 232.2(b). It is currentlywithin the authority of the DistrictDirectors to designate civil surgeons foreach district. See 8 CFR 232.2(b).Currently, USCIS does not recover thecosts of granting civil surgeondesignation and managing the CivilSurgeon Program. This is inconsistentwith OMB Circular A–25 requirementsthat USCIS recover the full cost of services provided to the public. DHS,therefore, proposes a fee to correct thatoversight in this proposed rule.

In the future, the civil surgeondesignation process will bestandardized. USCIS will develop astandard designation process and form,maintain an accurate, regularly-updatedlist of civil surgeons, ensure that the

program is self-funded, and improvecommunication between USCIS andcivil surgeons. Six of the nine ABCactivities apply to the civil surgeondesignation process:

• Intake—USCIS must receiverequests for civil surgeon designation,perform data entry, and create a file foreach individual application.

• Review Records—USCIS mustensure that evidence essential to thedesignations process is received fromappropriate sources and collated intoone file. Each application becomes arecord that must be stored, retrieved,and archived as needed.

• Inform the Public—USCIS receivesand processes applicant and petitionerservice inquiries from applicants relatedto the status of their applications.

• Fraud Prevention and Detection—The authenticity of each applicationmust be analyzed in order to preventpotential immigration benefit fraud.

• Make Determination—Allphysicians applying for civil surgeondesignation will be vetted for anyadverse actions pending against them bythe State medical licensing authoritiesto determine eligibility.


The FY 2010/2011 Fee Studycalculated the costs of carrying out eachof these activities as, respectively, $26,$61, $85, $24, $350, and $69, for a totalproposed fee of $615 for this benefit.

Doctors who request a civil surgeondesignation will add a payment of $615to the items that are currently required.Since the estimated number of civilsurgeon designation requests is only3,410 per year, the impact of thisproposed fee on other fees is negligible.Nevertheless, even though they amountto only $1.9 million per year, these costsshould not be covered by other feepayers.

VI. Volume

USCIS uses two types of volume datain the fee review. Workload volume is

a projection of the total number of immigration benefit requests received ina fiscal year and is used to determinethe amount of resources needed. Fee-paying volume is a projection of howmany applicants will pay a fee for arequest. Since USCIS may waive the feeor allow an exemption for certainclasses of applicants, fee-paying volumeis used to determine projected revenue.

• Workload Volume is a primary costdriver for assigning processing activitycosts to immigration benefit requests inthe USCIS activity-based cost model.

Workload volume is projected for eachimmigration benefit by Service Centers,National Benefit Center, and DistrictOffices in order to assign costs wherethe work is performed, and thus wherecosts are realized.

• Fee-paying Volume is used tocalculate proposed fees for immigration

benefit requests and biometric services.

The fee-paying volume for each form isdetermined by dividing the actual feerevenues per request in FY 2008 by theFY 2008 fee to determine the fee-payingpercentage, and then applying thatpercentage to projected workloadvolumes. USCIS adjusts FY 2008 fee-paying volumes to reflect filing trendsand anticipated changes in order toproject FY 2010/2011 fee-payingvolumes.

USCIS projects workload volumes based on filing trends in FY 2009 andprojected changes for FY 2010/2011.USCIS also utilizes time series modeldata from the last 15 years developed bythe DHS Office of Immigration Statistics(OIS), as well as the best availableinternal understanding of futuredevelopments. Given the size and scopeof current negative economicconditions, historical data may notprovide sufficient insight into thelikelihood or timing of volume increasesor decreases. Consequently, USCIS hastaken a conservative approach toworkload volume estimates for FY 2010/2011.

USCIS reviews short- and long-termvolume trends and assesses OIS trenddata with representatives of other

affected components of DHS. OISvolume estimates by application orpetition type are primarily drawn fromtime series models. The time seriesmodels analyze historical receipts datain order to capture patterns (such aslevel, trend, and seasonality) orcorrelations in historical events. Thesepatterns and correlations are thenextrapolated into the future in order toderive projected receipts. All of themodels capture the behavioralrelationships and dependencies of receipts to past values. For example, themodels factor in the correlation between

the number of pending Form I–485,Application to Register PermanentResidence or Adjustment of Status, andthe projected number of receipts for theForm I–765, Application forEmployment Authorization, and theForm I–131, Application for TravelDocument. DHS, USCIS, and OIS willcontinue to improve both the estimatingprocess and the basis for specificestimates.

Table 10 summarizes the FY 2008/2009 workload volume and theprojected workload volume for FY 2010/


http://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civil-surgeons.html








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2011 based on trends and projectedchanges by immigration benefit request.The projected workload volume is used

in the cost model to determine requestcosts. USCIS has experienced a general

decrease in volume and expects thattrend to continue.BILLING CODE 9111–97–P


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The projected fee-paying volume isused to determine immigration benefitand biometric service unit costs and

ultimately the proposed fees. Acomparison of 2008/2009 Fee Rule fee-paying volume to projected 2010/2011

fee-paying volume, along with thedifference between the two, is outlinedin Table 11.


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VII. Completion Rates

USCIS uses completion rates,reflective of Immigration ServicesOfficer (ISO) hours per completion, toidentify the adjudicative time requiredto complete specific benefit requestsfrom receipt to final disposition. Therate for each benefit request representsan average, as each case is different and

some cases are more complex thanothers. Completion rates reflect what istermed ‘‘touch time,’’ or the time the ISOis actually handling the case. It is notreflective of ‘‘queue time,’’ or time spentwaiting, for example, for additionalinformation or supervisory approval.

Nor does it reflect the total timeapplicants and petitioners can expect toawait a decision on their cases oncethey are received by USCIS.

All ISOs are required to reportcompletion rate information. In additionto using this data to determine fees,completion rates are a key factor indetermining staffing allocations to

match resources and workload. For thisreason, data reported are scrutinized byfield and regional office managementofficials, and by the ProductionManagement Branch (PMB) at USCISheadquarters to ensure data accuracy.When the data are found to be

inconsistent with other offices or withprior reported data, the PMB contactsthe reporting office and makes anynecessary adjustments. Completionrates, reflected in terms of hours percompletion, are summarized in Table12. Completion rates are calculatedusing 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 therule best reflect actual work times. Morerecent rates that have not had sufficientreview and analysis and may reflectnear-term trends and work fluctuationsthat could skew model outcomes.


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22Completion rates are calculated using data forthe 12-month period of May 2008 through April2009.

23Due to substantial changes in the businessprocesses used to adjudicate the I–90, thecompletion rate is the 3-year service-wide averagefrom May 2006 through April 2009.

24Data for the I–290B was not collected untilOctober 2008, therefore the completion rate timeperiod is the 7-month period of October 2008through April 2009.


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The activity costs are then distributedto the applications. Table 15

summarizes total revenue byimmigration benefit request.


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25The Form I–687 was temporarily available onlyfor Legalization Applications Pursuant to the

Northwest Immigrant Rights Project (NWIRP)Settlement Agreement. Filing period ended Jan. 31,2010.


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Finally, consolidating the budgetrealignment proposed in the President’s

budget and this rule, Table 16 depictsthe current and proposed USCIS fees forimmigration benefits and biometricservices. This proposed fee schedule is

based on the President’s requestedappropriation to fund the Asylum/Refugee surcharge and for SAVE and

Office of Citizenship being enacted intolaw. In some applications, DHSproposes to reduce the fees and feeincreases are mitigated by thePresident’s requested appropriation; inthose applications where a fee reductionis proposed, the President’s requestedappropriation would further reduce thatfee. In one instance, the Application To

Extend/Change Nonimmigrant Status(Form I–539), the President’s requestedappropriation would alter a 2% increasein the modeled fee to a 5% decrease infee. If a different appropriation isenacted, the final rule will adjust the feeschedule to accommodate theappropriated funding.


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26 In the June 2007 Annual Report to Congress,the USCIS Ombudsman stated that ‘‘premiumprocessing is less costly than regular USCIS benefitsprocessing 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 thecontrary. The margin of income that USCIS canderive from premium processing is higher than

from regular processing.’’

and made therecommendation that ‘‘USCIS conduct a thorough,transparent, and independent analysis of premiumprocessing costs as compared with regularprocessing.’’ Citizenship and Immigration ServicesOmbudsman, Annual Report to Congress, June2007, (Recommendation AR 2007–07). Asubsequent review by the GAO, ImmigrationApplication 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 premiumrevenues to transformation may create inequitieswhere persons not paying for premium processingservice still pay the cost of premium processingoperations. While the substance of the reportsaddresses two separate matters, the unified concernis that undue cost and fee burdens are being placedon persons who do not receive premium processing

services. Preliminary analysis of premiumprocessing costs indicates that the marginalincrease in cost of premium processing operationsapart from regular processing is small.

27USCIS separately tracks, from an accountingstandpoint, revenue receipts from each uniquesource (such as each application type) includingpremium processing. All Immigration ExaminationsFee Account (IEFA) revenue is, however, depositedinto a single account including premium processingfees, and all expenditures are made from this singleunified account without separate tracking of spending tied to the specific fees. Ultimately, thereis no direct, per dollar, matching of premiumprocessing receipts used to fund adjudication costs,expenditures for infrastructure improvements, orUSCIS operating expenses.

28Public Law 106–553, App. B, tit. I, sec. 112, 114Stat. 2762, 2762A–68 (Dec. 21, 2000).

29http://www.gao.gov/new.items/d09180.pdf. 30Consumer Price Index Overview. Bureau of

Labor Statistics, Dec. 09, 2009. http://www.bls.gov/ cpi/cpiovrvw.htm#item1.

B. Proposed Adjustments to PremiumProcessing Fee

The Immigration and Nationality Actpermits certain employment-basedimmigration benefit applicants torequest, for a fee, premium processing.INA sec. 286(u), 8 U.S.C. 1356(u). Thepremium processing fee is paid inaddition to the base filing fee. Premiumprocessing guarantees that USCIS willprocess an application within fifteendays. Id; 8 CFR 103.2(f). The Actprovides that premium processingrevenue shall be used to fund the costof offering the service, as well as thecost of infrastructure improvements inadjudications and customer serviceprocesses.26 Id. USCIS, therefore,segregates revenue from the premiumprocessing and dedicates it totransitioning USCIS from a paper-basedoperational environment to a paperlesselectronic case managementenvironment.27 This program is an

extensive, multi-year effort, estimatedfor completion over a five-year period.Unlike previous efforts to modernizeUSCIS, however, the Transformationprogram will implement near-termimprovements as they are developed,allowing USCIS and its customers to

benefit more quickly with improvedservice. Transformation willcomprehensively touch every aspect of USCIS business operations such asinformation collection, storage, and datasharing; customer service and support,adjudicatory processes; staff roles andresponsibilities; and informationtechnology.

Transforming USCIS systems frompaper to electronic is crucial to thesuccess of improving immigrationservices. The current business modeland supporting systems cannot meetanticipated demand and unanticipatedworkload surges. Among manyimprovements, after the transformationinitiative is completed, USCIS expectsmuch greater utilization of theelectronic submission of applicationsand supporting documentation.Applicants and petitioners will be ableto establish online accounts, trackactivity on their cases, update personal

profiles, and will no longer need toresubmit duplicative biometric and biographic information when applyingfor future benefits.

DHS proposes to adjust the premiumprocessing fee by the percentageincrease in inflation according to theConsumer Price Index (CPI) since thefee’s inception. The CPI is issued by theDepartment of Labor’s Bureau of LaborStatistics (BLS) and can found athttp://www.bls.gov/cpi/cpi _dr.htm. InDecember 2000, Congress authorized thecollection of a premium processing feein the amount of $1,000.28 INA sec.286(u); 8 U.S.C. 1356(u). Although the

law provides USCIS with explicitauthority to adjust the fee for inflation

based on the CPI, USCIS has notadjusted the fee since its inception in2001. This adjustment was recentlyrecommended by the GovernmentAccountability Office. GovernmentAccountability Office, Federal User Fees, GAO–09–180 (Jan. 2009).29 Therefore, DHS proposes to increase thepremium processing fee by applying theinflation rate since the fee’s inception in

June 2001 until the date of publicationof a final rule. For illustrative purposes,the proposed rule uses the September

2009 CPI.USCIS uses the CPI for all urbanconsumers (CPI–U) because it is theprimary CPI measure. The CPI–U coversapproximately 87 percent of the totalpopulation.30 In June 2001, the CPI forall urban consumers was 178.0. InMarch 2010, the CPI–U was 217.631.

The 22 percent increase to the CPI–Uapplied to the $1,000 fee results in a feeof $1,223 ($1,225 after it is rounded tothe nearest $5). This calculation resultsin a proposed increase in the premiumprocessing fee of $225. The final feecould be different from this proposedamount, because the CPI–U, uponwhich the fee adjustment is based,

varies monthly; however, the final feerule will be based upon the samemethodology. The final rule willestablish an amount based upon thelatest published monthly CPI before thefinal rule publication. DHS alsoproposes to specify that USCIS will usethe CPI–U to calculate all futureinflation-based fee adjustments and willpublish a Notice in the Federal Registerannually (if applicable) to adjust thisfee. See Proposed 8 CFR 103.7(b).

C. Removal of Fees Based on FormNumbers

Historically, USCIS has depended onpaper files, which can make it difficultto efficiently process immigration

benefits. As discussed above, USCIS ismodernizing its processes and systemsto accommodate and encourage greateruse of electronic data submission toinclude e-filing and electronicinteraction. Although it is possible someapplicants and petitioners may stillchoose to file paper forms, USCIS plansto encourage electronic filing. USCISwill continue to describe form names,numbers and filing instructions on itsInternet Web site and publicinformation phone scripts; however,

USCIS may change form numbers asprocesses evolve.

To avoid prescribing fees in a mannerthat could undermine thetransformation process, DHS proposesfees based on form titles instead of formnumbers. Proposed 8 CFR 103.7(b)(1).Although the current form number isincluded in the text of the regulation foreach fee, introductory text is proposedthat will allow the form number tochange without affecting the fee. SeeProposed 8 CFR 103.7(b).

As stated previously, current USCISform fees and those proposed in this

rule are based on the averageadjudication costs derived from the ABCmodel. Many forms are used to requesta wide variety of benefits for which theevidentiary and adjudicationrequirements can be quite disparate. Forexample, Form I–129, Petition forNonimmigrant Worker, is used foremployers to petition for an alien tocome 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


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request an extension of stay or changeof status for an alien as an E–1, E–2, orTN nonimmigrant. The complexity of the evidence required to documenteligibility for each of the respectivevisas varies to some degree based onfactors too numerous to outline here.For another example, Form I–360,Petition for Amerasian, Widow(er), or

Special Immigrant, is used to classify analien as: (1) An Amerasian; (2) A Widowor Widower; (3) A Battered or AbusedSpouse or Child of a U.S. Citizen orLawful Permanent Resident; or (4) Aspecial immigrant defined as: AReligious Worker, Panama CanalCompany Employee, Canal ZoneGovernment Employee, U.S.Government in the Canal ZoneEmployee; Physician; InternationalOrganization Employee or FamilyMember; Juvenile Court Dependent;Armed Forces Member; Afghanistan orIraqi national who supported the U.S.

Armed Forces as a translator; or an Iraqinational who worked for, or on behalf of, the U.S. Government in Iraq. Severalother examples exist. Future fee reviewsmay explore establishing the feeschedule with an even wider range of discrete fees than provided in this ruleto more closely align the level of effortexpended or required to the fee. As aninitial step toward such refinement, thisrule, by not proposing to promulgatefees based on a precise form number,will allow that form number to bechanged as part of the initial phases of the transformation process.

To further facilitate USCIStransformation, 8 CFR 103.7(b) is beingrestructured to clarify those fees thatapply only to USCIS. DHS regulationscontain provisions that to varyingdegrees govern facets of all of theimmigration components of DHS—USCBP, USCIS and U.S. Immigrationand Customs Enforcement (ICE). Thisrule applies only to USCIS. DHS willdivide 8 CFR 103.7(b)(1) into separateregulatory provisions containing thosefees that are managed by USCIS onlyand those that are shared with ormanaged by another immigration-

related component of DHS. Further, 8CFR 103.7(c) regarding fee waivers isrestructured to list fees that can bewaived, rather than those that cannot bewaived, and moves the provisions of 8CFR 103.7(c)(1) into more coherentparagraphs. In addition, the currentrequirement for an ‘‘unsworndeclaration’’ in 8 CFR 103.7(c) is overlytechnical for an individual who mayqualify for a fee waiver and thatrequirement is proposed to be removed.Beyond the restructuring of 8 CFR103.7(b) and (c), however, DHS does not

propose to change any authority otherthan that of USCIS in any context.While DHS believes these structuralchanges will clarify fee waiver policies,DHS specifically requests comments onany unintended substantive effects.Finally, DHS proposes to redesignateand revise 8 CFR 103.7(d) to removeextraneous language, outdated

terminology and excessive, internal,procedural detail.

D. Collection of Biometrics FeesOverseas

DHS proposes to remove theprovision in current regulations thatexempts individuals who requirefingerprinting and who reside outside of the United States at the time of filing animmigration benefit request from therequirement to submit the service fee forfingerprinting with the application orpetition for immigration benefits. Seecurrent 8 CFR 103.2(e)(4)(ii). USCIS

expects to collect biometrics from anincreasing number of overseas residentsin order to comply with the AdamWalsh Child Protection and Safety Actof 2006, which restricts the ability of any U.S. citizen or lawful permanentresident alien who has been convictedof any ‘‘specified offense against aminor’’ to file certain family-basedimmigration petitions, unless USCISdetermines that the petitioner poses norisk to the intended beneficiaries of thepetition. 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 topay fees commensurate with theservices being provided. The cost of conducting biometrics overseas shouldnot be borne by other applicants. Thus,DHS proposes to eliminate thisexemption. Projected biometric volumesfor the FY 2010/2011 fee review includeoverseas volumes.

IX. Statutory and Regulatory Reviews

A. Regulatory Flexibility Act

In accordance with the RegulatoryFlexibility Act (RFA), 5 U.S.C. 601(6),USCIS examined the impact of this ruleon small entities. A small entity may bea small business (defined as anyindependently owned and operated

business not dominant in its field thatqualifies as a small business per theSmall Business Act, 15 U.S.C. 632), asmall not-for-profit organization, or asmall governmental jurisdiction(locality with fewer than fifty thousandpeople). Below is a summary of thesmall entity analysis. A more detailedanalysis is available in the rulemakingdocket at http://www.regulations.gov.

Individuals rather than small entitiessubmit the majority of immigration andnaturalization benefit applications andpetitions. Entities that would be affected

by this rule are those that file and paythe 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 aNonimmigrant Worker (Form I–129);Immigrant Petition for an Alien Worker(Form I–140); Civil SurgeonDesignation; and the new Applicationfor Regional Center under the ImmigrantInvestor Pilot Program (Form I–924).

DHS does not believe that the increasein fees proposed in this rule will havea significant economic impact on asubstantial number of small entities.Nevertheless, DHS is publishing thisinitial regulatory flexibility analysis toaid the public in commenting on thesmall entity impact of its proposed

adjustment to the USCIS Fee Schedule.In particular, DHS requests informationand data that would lead the agency toa different conclusion. DHS also seekscomment on significant alternatives thataccomplish the objectives of thisrulemaking and that minimize the rule’seconomic impact on small entities.

1. A Description of the Reasons Why theAction by the Agency Is BeingConsidered

DHS proposes to adjust certainimmigration and naturalization benefitfees charged by USCIS. USCIS hasrefined its cost accounting process and

determined that current fees do notrecover the full costs of servicesprovided. Adjustment to the feeschedule is necessary to recover costsand maintain adequate service.

2. A Succinct Statement of theObjectives of, and Legal Basis for, theProposed Rule

DHS’s objectives and legal authorityfor this proposed rule are discussed insection II of this preamble.

3. A Description—and, Where Feasible,an Estimate of the Number—of SmallEntities to Which the Proposed Rule

Will ApplyEntities affected by this rule are those

that file and pay fees for certainimmigration benefit applications on

behalf of an alien. These applicationsinclude Form I–129 (Petition forNonimmigrant 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 smallentities impacted by this fee increasetotal: Form I–129 (87,220 entities), Form




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

32Reference USA reports sales revenue forentities as a range of values. For this analysis, DHSutilized the lower end of the range in order toassure the potential economic impact of theproposed rule was not underestimated. Forexample, if Reference USA reported a filingorganization had revenue between $500,000 and$750,000, this analysis assumed the revenue was$500,000.

33NAICS Code 62111. See U. S. Small BusinessAdministration Table of Small Business Size

Continued

I–140 (44,500 entities), Civil SurgeonDesignation (1,200 entities), and FormI–924 (132 entities).

This rule applies to small entities,including businesses, non-profitorganizations, and governmentaljurisdictions filing for the above

benefits. Forms I–129 and I–140, willsee a number of industry clusters

impacted by this rule (see Appendix Aof the Small Entity Analysis for a list of impacted industry codes). The fee forCivil Surgeon designation will impactphysicians seeking to be designated asa Civil Surgeon. Finally, the Form I–924, will impact any entity requestingapproval and designation to be aRegional Center under the ImmigrantInvestor Pilot Program.

(a) Petition for a Nonimmigrant Worker(Form I–129) and Immigrant Petition foran 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 toincrease the fee for Immigrant Petitionfor an Alien Worker (Form I–140) from$475 to $580, a $105 (22%) increase. Inorder not to underestimate the economicimpact of this proposed rule on smallentities, this analysis uses a feestructure based on fees withoutincluding appropriated funds.Therefore, the fees analyzed here areForm I–129 at $355 ($35 increase) andForm I–140 at $630 ($155 increase).

Using fiscal year 2008 data on actualfilings of Form I–129 and I–140

petitions, USCIS collected internal datafor each filing organization includingthe name, Employer IdentificationNumber (EIN), city, State, zip code, andnumber/type of filings. Each entity maymake multiple filings; for instance, therewere 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 revenueof the business, a third party source of data was necessary to help find thisinformation. USCIS utilized thecomprehensive online database fromReference USA to help determine an

organization’s small entity status andthen applied SBA guidelines to theentities under analysis.31

USCIS devised a methodology toconduct the small entity analysis basedon a representative sample of thepotentially impacted population. Toachieve a 95% confidence level and a5% confidence interval on a populationof 148,289 entities, USCIS used thestandard statistical formula to determine

a minimum sample size of 383 entitieswas necessary.

USCIS conducted searches on 891randomly selected entities from apopulation of 148,289 unique entities.Based on past experience, USCISexpected to be able to find about 50 to60 percent of the filing organizations inthe Reference USA database, which

includes information on approximately14 million U.S. entities.

Accordingly, USCIS created a samplesize much greater than the 383minimum necessary in order to allowfor these non-matches (filingorganizations that could not be found inthe Reference USA database). The 891searches resulted in 512 instanceswhere the name of the filingorganization was successfully matchedwith Reference USA and 379 instanceswhere the name of the filingorganization was not found in theReference USA database. Based onprevious experience conductingregulatory flexibility analyses, USCISassumes filing organizations not foundin the Reference USA database are likelyto be small entities and in order not tounderestimate the number of smallentities impacted by this rule, USCISmakes the conservative assumption toconsider all of these 379 non-matchedentities as small entities for the purposeof this analysis. Further, 52 of the 512matched entities did not containrevenue or employee count data.Additional Internet research allowed usto classify all 52 as small entities: 5small non-profit/small governmental

jurisdiction and 47 small businesses.Among the 512 matches, 336 weredetermined to be small entities based ontheir revenue or employee count andtheir NAICS code. Combining non-matches (379), small non-profit/governmental jurisdiction (22), matchesmissing data (52), and small entitymatches (336), enables us to classify 789of 891 entities as small.

With an aggregated total of 789 out of a sample size of 891, DHS inferred thata majority, or 88.6%, of the entitiesfiling Form I–129 and Form I–140petitions were small entities.

Furthermore, 332 of the 891 searchedwere small entities with the salesrevenue data needed in order toestimate the economic impact of theproposed rule. Since these 332 were asmall entity subset of the randomsample of 891 searches, they werestatistically significant in the context of this research.

In order to calculate the economicimpact of this rule, DHS estimated thetotal costs associated with the proposedfee increase for each entity, divided bysales revenue of that entity. For

example, an entity with $100,000 insales revenue filed one Form I–129 andone Form I–140. Based on the proposedfee increase of $35 for Form I–129 and$155 for Form I–140, this would amountto a 0.19% economic impact on theentity.32

Among the 332 small entities withreported revenue data, all experienced

an economic impact considerably lessthan 1.0%. In fact, using the abovemethodology, the greatest economicimpact imposed by this fee changetotaled 0.19% and the smallest totaled0.00002%. The average impact on all332 small entities with revenue datawas 0.055%.

Finally, the impact on small entitieswas examined by looking at each formseparately. Since entities can filemultiple forms, the analysis considersexactly how many forms each entitysubmitted. For example, an entity with$100,000 in sales revenue that filed four

Form I–129s would experience aneconomic impact of 0.14% of revenue;while an entity with sales revenue of $500,000 filing three Form I–140swould experience an economic impactof 0.093% All small entities filing FormI–129s experienced an average impact of 0.0215% (range of impact from0.000004% to 0.525%). Similarly, theaverage impact on filers of Form I–140of 0.0491% was also insignificant (rangeof impact from 0.00002% to 0.155.

The evidence suggests that theadditional fee imposed by this rule doesnot represent a significant economicimpact on these entities.

(b) Civil Surgeon Designation

USCIS estimates that it will receive arequest for designation as a civilsurgeon from 1,160 doctors in both FY2010 and FY 2011. According to theSmall Business Administration (SBA)Small Business Size Regulations at 13CFR part 121, offices of physicians(except mental health professionals) areconsidered small entities when theirannual sales are less than $10 million.USCIS has no records on the averageannual revenue for the doctorsregistered as civil surgeons. For the

purposes of this analysis, it is assumedthat they all have annual gross revenueof under $10 million.33 Therefore, it is


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Standards Matched to North American IndustryClassification System Codes. http://www.sba.gov/ idc/groups/public/documents/sba _homepage/ serv _sstd _tablepdf.pdf.

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

35$665 divided by $161,490.

36http://www.travel.state.gov/visa/frvi/statistics/ statistics _4581.html.

374,218/2.5 = 1,687 investors. USCIS estimatesthat 2.5 visas are issued for each primary alien.

3890% × 1,687 = 1,518.39Three 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 RegionalCenters is available online at: http://www.uscis.gov/ eb-5centers.

estimated that approximately 1,200individuals per year that would file arequest for designation as a civilsurgeon would be affected by this rule,with all of them being classified assmall entities.

The rule proposes to establish aprocessing fee of $615 for the CivilSurgeon Program. This analysis utilized

fees calculated without anyappropriated funds, resulting in a $665fee for the Civil Surgeon analysis.

To illustrate whether or not a rulecould have a significant impact,guidelines suggested by the SBA Officeof Advocacy provide that the cost of theproposed regulation may exceed onepercent of the gross revenues of theentities in a particular sector or fivepercent of the labor costs of the entitiesin the sector.34

According to the U.S. Department of Labor, Bureau of Labor Statistics (BLS),Office of Occupational Employment

Statistics, the median annual wage forFamily and General Practitioners isabout $161,490. Thus, the costs added

by this rule are only 0.41 percent of thesalary costs for one doctor.35 As stated

before, the average total revenue of thecivil surgeon is unknown. Nonetheless,for the new $665 fee to exceed onepercent of annual revenues, sales would

be required to be $66,500 per year orless.

USCIS believes that the costs of thisrulemaking to small entities would notexceed one percent of the grossrevenues of the entities in the affectedsector. Using the average annual laborcosts and the percentage of the affectedentities’ annual revenue stream asguidelines, USCIS believes that the civilsurgeon designation fee proposed bythis rule would not have a significanteconomic impact on a substantialnumber of small entities.

(c) Application for Regional CenterUnder the Immigrant Investor PilotProgram (Form I–924)

The Immigrant Investor Program, alsoknown as EB–5, was created byCongress in 1990 under 203(b)(5) of theImmigration and Nationality Act (INA)

to stimulate the U.S. economy throughjob creation and capital investment byalien investors. Alien investors have theopportunity to obtain lawful permanentresidence in the United States for

themselves, their spouses, and theirminor unmarried children by making acertain level of capital investment andassociated job creation or preservation.There are two distinct EB–5 pathwaysfor an alien investor to gain lawfulpermanent residence: the Basic Programand 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 investmentis in a Targeted Employment Area ornot) in a new commercial enterpriselocated within the United States.

USCIS proposes a $6,230 ImmigrantInvestor fee for entities requestingapproval and designation as a RegionalCenter under the Immigrant InvestorPilot Program. The new applicationprocess will require the sameinformation from applicants that iscurrently required, but will standardize/simplify the reporting format. This

analysis utilized fees calculated withoutany appropriated funds, resulting in a$6,820 fee for the EB–5 Regional Centeranalysis.

DOS reports that 4,218 EB–5 visaswere issued in 2009.36 USCIS estimatesthat 1,687 of these are primary aliens(investors) and the remainder aredependents.37 Typically, ninety percentof EB–5 investors participate inRegional Center-related projects, whilethe others invest individually.Therefore, USCIS estimates FY 2009Regional Center investors at 1,518aliens.38 As of October 1, 2009, therewere 79 USCIS-approved Regional

Centers, which equates to an average of 19.2 new investors per Regional Centerin FY 2009.

Each Regional Center receives aminimum investment from every alieninvestor of $500,000. A search of Regional Center Web sites shows thatmost charge each investor a‘‘syndication fee’’ of $20,000 to$50,000.39 Further, during theapplication process, Regional Centersare required to provide a detailedstatement regarding the amount andsource of non-alien capital and adescription of the planned promotional

efforts. Combining the data, an averageof 19.2 new investors, each investing

$500,000, leads to an average additionalinvestment per Regional Center of $9.6million in FY 2009. While RegionalCenters are prohibited from using alieninvestments to pay for overheadexpenses, comparing FY 2009 averageRegional Center investor receipts to the$6,820 application fee provides areasonable context in which to consider

the economic impact of the proposedfee. The proposed Regional Center fee of $6,820 would represent only 0.07104%of the $9.6 million average additionalinvestment per Regional Center in FY2009. The proposed application fee of $6,820 is only collected once and is nota recurring fee.

The data indicates there are 79approved Regional Centers in theUnited States and its territories. Ananalysis of these 79 Regional Centersshows 66 of these Regional Centers areowned by small businesses and possiblyone of these Regional Centers is owned

by a small non-profit organization.Consequently 67 of the existing 79Regional Centers, or 85%, are smallentities. Based on increased interest inthe EB–5 program, USCIS estimates atleast 132 new Regional Centers will beapproved each year over the next twoyears. Since the overwhelming majorityof these Regional Centers are smallentities, for the purpose of this analysis,DHS will assume all 132 new RegionalCenters are small entities.

In summary, even though a significantnumber of these Regional Centers aresmall entities, considering this proposedfee represents only 0.07104% of the

average additional investment perRegional Center in FY 2009, DHS

believes this $6,820 fee does notconstitute a significant economic impacton these entities. Nevertheless, DHS hasprepared an Initial RegulatoryFlexibility Analysis, included it in theproposed rule, and requests publiccomment on the impact of this rule onsmall entities.

4. A Description of the ProjectedReporting, Recordkeeping, and OtherCompliance Requirements of theProposed Rule, Including an Estimate of the Classes of Small Entities That WillBe Subject to the Requirement and theTypes 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 anynew professional skills for reporting.

USCIS proposes to increase the fee forPetition for a Nonimmigrant Worker(Form I–129) from $320 to $325, a $5(1.5%) increase. USCIS proposes to


http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf









http://www.sba.gov/advo/laws/rfaguide.pdf



http://www.travel.state.gov/visa/frvi/statistics/statistics_4581.html




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

































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40Reference USA reports sales revenue forentities as a range of values. For this analysis, DHSutilized the lower end of the range in order toassure the potential economic impact of theproposed rule was not underestimated. Forexample, if Reference USA reported a filingorganization had revenue between $500,000 and$750,000, this analysis assumed the revenue was$500,000.

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

42$665 divided by $161,490.

43http://www.travel.state.gov/visa/frvi/statistics/ statistics _4581.html.

444,218/2.5 = 1,687 investors. USCIS estimatesthat 2.5 visas are issued for each primary alien.

4590% × 1,687 = 1,518.46Three 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 RegionalCenters is available online at: http://www.uscis.gov/ eb-5centers.

increase the fee for Immigrant Petitionfor an Alien Worker (Form I–140) from$475 to $580, a $105 (22%) increase. Inorder not to underestimate the economicimpact of this proposed rule on smallentities, this analysis uses a feestructure based on fees withoutincluding appropriated funds.Therefore, the fees analyzed here are

Form I–129 at $355 ($35 increase) andForm I–140 at $630 ($155 increase).

In order to calculate the economicimpact of this rule, DHS estimated thetotal costs associated with the proposedfee increase for each entity, divided bysales revenue of that entity. Forexample, an entity with $100,000 insales revenue filed one Form I–129 andone Form I–140. Based on the proposedfee increase of $35 for Form I–129 and$155 for Form I–140, this would amountto a 0.19% economic impact on theentity.40

Among the 332 small entities withreported revenue data, all experiencedan economic impact considerably lessthan 1.0%. In fact, using the abovemethodology, the greatest economicimpact imposed by this fee changetotaled 0.19% and the smallest totaled0.00002%. The average impact on all332 small entities with revenue datawas 0.055%.

Analyzed individually by form andweighted by the number of petitionsactually filed, the economic impactupon small entities was alsoinsignificant. All small entities filing I–129 experienced an average impact of 0.0215% (range of impact from

0.000004% to 0.525%). Similarly, theaverage weighted impact on filers of Form I–140 of 0.0491% was alsoinsignificant (range of impact from0.00002% to 0.155%). These resultsagree with the results of the combinedsample.

(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 SurgeonDesignation. Also, the proposed ruledoes not require any new professionalskills for reporting. The rule proposes toestablish a processing fee of $615 for theCivil Surgeon Program. This analysisutilized fees calculated without anyappropriated funds, resulting in a $665fee for the Civil Surgeon analysis.

To illustrate whether or not a rulecould have a significant impact,guidelines suggested by the SBA Officeof Advocacy provide that the cost of theproposed regulation may exceed onepercent of the gross revenues of theentities in a particular sector or fivepercent of the labor costs of the entitiesin the sector.41

According to the U.S. Department of Labor, Bureau of Labor Statistics (BLS),Office of Occupational EmploymentStatistics, the median annual wage forFamily and General Practitioners isabout $161,490. Thus, the costs added

by this rule are only 0.41 percent of thesalary costs for one doctor.42 As stated

before, the average total revenue of thecivil surgeon is unknown. Nonetheless,for the new $665 fee to exceed onepercent of annual revenues, sales would

be required to be $66,500 per year orless.

Therefore, USCIS believes that the

costs of this rulemaking to small entitieswould not exceed one percent of thegross revenues of the entities in theaffected sector. Using both the averageannual labor costs and the percentage of the affected entities’ annual revenuestream as guidelines, the evidencesuggests that the civil surgeondesignation fee proposed by this rulewould not have a significant economicimpact on a substantial number of smallentities.

(c) Form I–924:A standardized form and instructions

for the filing of proposals requesting the

Regional Center designation does notcurrently exist. The lack of astandardized form has resulted inconfusion on the part of the publicregarding the specific documentationthat is required in order to meet theeligibility requirements. Applicantshave not paid any fees to cover costsassociated with program activities. As aresult, costs have been paid by fee-paying applicants and petitionerswithin the fee levels of otherapplications.

The new Form I–924, Application forRegional Center under the ImmigrantInvestor Pilot Program, will serve thepurpose of standardizing requests for

benefits and ensuring that the basicinformation required to determineeligibility is provided by applicantswhich will alleviate contentinconsistencies among applicants’submissions. Form I–924 will support amore efficient process for adjudication

of Regional Center proposals. Also, theproposed rule does not require any newprofessional skills beyond thosecurrently in place.

USCIS proposes a $6,230 ImmigrantInvestor fee for entities requestingapproval and designation as a RegionalCenter under the Immigrant InvestorPilot Program. The new application

process will require the sameinformation from applicants that iscurrently required, but will standardize/simplify the reporting format. Thisanalysis utilized fees calculated withoutany appropriated funds, resulting in a$6,820 fee for the EB–5 Regional Centeranalysis.

DOS reports that 4,218 EB–5 visaswere issued in 2009.43 USCIS estimatesthat 1,687 of these are primary aliens(investors) and the remainder aredependents.44 Typically, ninety percentof EB–5 investors participate inRegional Center-related projects, whilethe others invest individually.Therefore, USCIS estimates FY 2009Regional Center investors at 1,518aliens.45As of October 1, 2009, therewere 79 USCIS-approved RegionalCenters, which equates to an average of 19.2 new investors per Regional Centerin FY 2009.

Each Regional Center receives aminimum investment from every alieninvestor of $500,000. A search of Regional Center Web sites shows thatmost charge each investor a‘‘syndication fee’’ of $20,000 to$50,000.46 Further, during theapplication process, Regional Centers

are required to provide a detailedstatement regarding the amount andsource of non-alien capital and adescription of the planned promotionalefforts. Combining the data, an averageof 19.2 new investors, each investing$500,000, leads to an average additionalinvestment per Regional Center of $9.6million in FY 2009. While RegionalCenters are prohibited from using alieninvestments to pay for overheadexpenses, comparing FY 2009 averageRegional Center investor receipts to the$6,820 application fee provides areasonable context in which to consider

the economic impact of the proposedfee. The proposed Regional Center fee of











































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$6,820 would represent only 0.07104%of the $9.6 million average additionalinvestment per Regional Center in FY2009. The proposed application fee of $6,820 is only collected once and is nota recurring fee.

In summary, even though a significantnumber of these Regional Centers aresmall entities, considering this proposed

fee represents only 0.07104% of theaverage additional investment perRegional Center in FY 2009, DHS

believes this $6,820 fee does notconstitute a significant economic impacton these entities. Nevertheless, DHS hasprepared an Initial RegulatoryFlexibility Analysis, included it in theproposed rule, and requests publiccomment on the impact of this rule onsmall entities.

5. An Identification, to the ExtentPracticable, of All Relevant FederalRules That May Duplicate, Overlap, orConflict With the Proposed Rule

DHS is unaware of any duplicative,overlapping, or conflicting Federalrules. As noted below, DHS seekscomment and information about anysuch rules.

6. Description of Any SignificantAlternatives to the Proposed Rule ThatAccomplish the Stated Objectives of Applicable Statutes and That MinimizeAny Significant Economic Impact of theProposed Rule on Small Entities,Including Alternatives Considered Suchas: (1) Establishment of differingcompliance or reporting requirements ortimetables that take into account theresources available to small entities; (2)clarification, consolidation, orsimplification of compliance andreporting requirements under the rulefor such small entities; (3) use of performance rather than designstandards; (4) any exemption fromcoverage 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 recoveryof the full costs of providingadjudication and naturalizationservices, including services provided

without charge to asylum applicantsand certain other immigrant applicants.In addition, DHS must fund the costs of providing services without charge byusing a portion of the filing fees that arecollected for other immigration benefits.Without an increase in fees, USCIS willnot be able to provide petitioners withthe same level of service forimmigration and naturalization benefits.DHS has considered the alternative of maintaining fees at the current levelwith reduced services and increasedwait times. While most immigration

benefit fees apply to individuals, asdescribed above, some also apply tosmall entities. USCIS seeks to minimizethe impact on all parties, but inparticular small entities. An alternativeto the increased economic burden of theproposed rule is to maintain fees at theircurrent level for small entities. Thestrength of this alternative is that it

assures no additional fee-burden isplaced on small entities; however, thisalternative also would cause negativeimpacts to small entities.

Without the fee adjustments proposedin this rule, significant operationalchanges would be necessary. Givencurrent filing volume and othereconomic considerations, additionalrevenue is necessary to preventimmediate and significant cuts inplanned spending. These spending cutswould include reductions in areas suchas Federal and contract staff,infrastructure spending on information

technology and facilities, travel, andtraining. Depending on the actual levelof workload received, these operationalchanges would result in longerapplication processing times, adegradation in customer service, andreduced efficiency over time. These cutswould ultimately represent an increasedcost to small entities by causing delaysin benefit processing and less customerservice.

7. Questions for Comment To AssistRegulatory Flexibility Analysis

• Please provide comment on thenumbers of small entities that may beimpacted by this rulemaking.

• Please provide comment on any orall of the provisions in the proposedrule with regard to the economic impactof this rule, paying specific attention tothe effect of the rule on small entities inlight of the above analysis.

• Please provide comment on anysignificant alternatives DHS shouldconsider 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 consistentwith the Immigration and Nationality

Act and the Chief Financial Officers Actrequirements.• Please identify all relevant Federal,

State or local rules that may duplicate,overlap or conflict with the proposedrule.

B. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Actof 1995 (UMRA) requires certain actionsto be taken before an agencypromulgates any notice of rulemaking‘‘that is likely to result in promulgationof any rule that includes any Federal

mandate that may result in theexpenditure by State, local and Tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or more(adjusted annually for inflation) in anyone year.’’ 2 U.S.C. 1532(a). While thisrule may result in the expenditure of more than $100 million by the privatesector annually, the rulemaking is not a

‘‘Federal mandate’’ as defined for UMRApurposes, 2 U.S.C. 658(6), as thepayment of immigration benefit fees byindividuals or other private sectorentities is, to the extent it could betermed an enforceable duty, one thatarises from participation in a voluntaryFederal program, applying forimmigration status in the United States.2 U.S.C. 658(7)(A)(ii). Therefore, noactions were deemed necessary underthe provisions of the UMRA.

C. Small Business Regulatory Enforcement Fairness Act

This rulemaking is a major rule asdefined by section 804 of the SmallBusiness Regulatory Enforcement Act of 1996. This rulemaking will result in anannual effect on the economy of morethan $100 million, in order to generatethe revenue necessary to fully fund theincreased cost associated with theprocessing of immigration benefitapplications and petitions andassociated support benefits; the full costof providing similar benefits to asylumand refugee applicants; and the full costof similar benefits provided to otherimmigrants, as specified in the proposedregulation, at no charge. The increased

costs will be recovered through the feescharged for various immigration benefitapplications.

D. Executive Order 12866

This rule is considered by theDepartment of Homeland Security to bean economically significant regulatoryaction under Executive Order 12866,section 3(f)(1), Regulatory Planning andReview. Accordingly, this rule has beenreviewed by the Office of Managementand Budget.

The implementation of this rulewould provide USCIS with an averageof $209 million in FY 2010 and FY 2011annual fee revenue, based on a projectedannual fee-paying volume of 4.4 millionimmigration benefit requests and 1.9million requests for biometric services,over the fee revenue that would becollected under the current feestructure. 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 processingimmigration benefit applications andassociated support benefits; the full costof providing similar benefits to asylum


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and refugee applicants; and the full costof similar benefits provided to others atno charge.

If USCIS does not adjust the currentfees to recover the full costs of processing immigration benefit requests,USCIS would be forced to enactadditional significant spendingreductions resulting in a reversal of the

considerable progress it has made overthe last several years to reduce the

backlogs of immigration benefit filings,to increase the integrity of theimmigration benefit system, and toprotect national security and publicsafety. The revenue increase is based onUSCIS costs and projected volumes that

were available at the time the rule wasdrafted. USCIS has placed in therulemaking docket a detailed analysisthat explains the basis for the annual feeincrease and has included anaccounting statement detailing theannualized costs of the proposed rule

below.

E. Executive Order 13132

This rulemaking will not havesubstantial direct effects on the States,on the relationship between theNational Government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with section 6 of ExecutiveOrder 13132, the Department of Homeland Security has determined thatthis rulemaking does not have sufficientFederalism implications to warrant thepreparation of a federalism summary

impact statement.

F. Executive Order 12988

This rule meets the applicablestandards set forth in sections 3(a) and3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Actof 1995, Public Law 104–13, 109 Stat.163 (1995) (PRA), all Departments arerequired to submit to OMB, for reviewand approval, any reporting orrecordkeeping requirements inherent ina rule. Accordingly, DHS is requesting

comments on two informationcollections for 60-days until August 10,2010. Comments on these informationcollections should address one or moreof the following four points:

(1) Evaluate whether the collection of information is necessary for the properperformance of the functions of theagency, including whether theinformation will have practical utility;

(2) Evaluate the accuracy of theagency’s estimate of the burden of thecollection of information, including the

validity of the methodology andassumptions used;

(3) Enhance the quality, utility, andclarity of the information to becollected; and

(4) Minimize the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother 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 forRegional Center under the ImmigrantInvestor Pilot Program, and Form I–924A, Supplement to Form I–924. Thisform is considered an informationcollection and is covered under thePaperwork Reduction Act.

a. Type of information collection:New information collection.

b. Abstract: This collection will beused by individuals and businesses to

file a request for USCIS approval anddesignation as a regional center on

behalf of an entity under the ImmigrantInvestor Pilot Program.

c. Title of Form/Collection:Application for Regional Center underthe Immigrant Investor Pilot Program.

d. Agency form number, if any, and the applicable component of theDepartment of Homeland Security sponsoring the collection: Form I–924and Form 924A; U.S. Citizenship andImmigration 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 filingForm I–924, and 116 respondents filingForm I–924A.

g. Hours per response: Form I–924 at40 hours per response, and FormI–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 applyingfor a civil surgeon designation. To applyfor a civil surgeon designation, USCISrequires a civil surgeon submit thefollowing information:

• A letter to the District Directorrequesting consideration,

• A copy of a current medical license(in the State in which the physicianseeks to complete immigration medicalexaminations),

• A current resume that shows atleast 4 years of professional experience(not including residency or medicalschool), and

• Two signature cards showing thephysician’s name and signature.This information collection is

required to determine whether aphysician meets the statutory andregulatory requirement for civil surgeondesignation. For example, all documentsare reviewed to determine whether thephysician has a currently valid medicallicense and whether the physician hashad any action taken against him or her

by the medical licensing authority of theState. If the civil surgeon designationrequest is accepted, the physician is


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included in USCIS’ Civil Surgeonlocator and is authorized to completeForm I–693 for an applicant’sadjustment of status.

a. Type of information collection:New information collection.

b. Abstract: This informationcollection is required to determinewhether a physician meets the statutory

and regulatory requirement for civilsurgeon designation.

c. Title of Form/Collection:Application for Civil SurgeonDesignation Registration.

d. Agency form number, if any, and the applicable component of theDepartment of Homeland Security sponsoring the collection: No formnumber; U.S. Citizenship andImmigration 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 submittedto the Department of HomelandSecurity, USCIS, Chief, RegulatoryProducts Division, Clearance Office, 111Massachusetts Avenue, NW.,Washington, DC 20529–2210.

The changes to the proposed fees willrequire minor amendments toimmigration benefit and petition formsto reflect the new fees. The necessary

changes to the annual cost burden andto the forms will be submitted to OMBusing OMB Form 83–C, CorrectionWorksheet, when this proposed rule issubmitted to OMB as a final rule.

List of Subjects

8 CFR Part 103

Administrative practice andprocedures; Authority delegations(government agencies); Freedom of Information; Privacy; Reporting andrecordkeeping requirements; and Surety

bonds.

8 CFR Part 204

Administrative practice andprocedure; Immigration; Reporting andrecordkeeping requirements.

8 CFR Part 244

Aliens, Reporting and recordkeepingrequirements.

8 CFR Part 274a

Administrative practice andprocedure, Aliens, Employment,Penalties, Reporting and recordkeepingrequirements.

Accordingly, chapter I of title 8 of theCode of Federal Regulations is proposedto be amended as follows:

PART 103—POWERS AND DUTIES;AVAILABILITY OF RECORDS

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

Authority: 5 U.S.C. 301, 552, 552(a); 8U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C.9701; Public Law 107–296, 116 Stat. 2135 (6U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874,15557; 3 CFR, 1982 Comp., p.166; 8 CFR part2.

§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) asparagraph (f);c. Adding new paragraphs (d) and (e);

and byd. Revising newly redesignated

paragraph (f).The revisions and additions read as

follows:

§103.7 Fees.

* * * * *(b) Amounts of fees. (1) Prescribed

fees and charges. (i) USCIS fees. Arequest for immigration benefitssubmitted to USCIS must include therequired fee as prescribed under this

section. The fees prescribed in thissection are associated with the benefit,the adjudication, and the type of requestand not solely determined by the formnumber listed below. The term ‘‘form’’ asdefined in 8 CFR part 1, may include aUSCIS-approved electronic equivalentof such form as USCIS may prescribe onits official Web site at http// www.uscis.gov.

(A) Certification of true copies: $2.00per 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 forany individual who is required to have

biometric information captured, stored,and used in connection with anapplication or petition for certainimmigration and naturalization benefits(other than asylum), whose applicationfee does not already include the chargefor biometric services. No biometricservice fee is charged when:

(1) A written request for an extensionof the approval period is received byUSCIS prior to the expiration date of

approval of an Application for AdvanceProcessing of Orphan Petition, if aPetition to Classify Orphan as anImmediate Relative has not yet beensubmitted in connection with anapproved Application for AdvanceProcessing of Orphan Petition. Thisextension without fee is limited to oneoccasion. If the approval extension

expires prior to submission of anassociated Petition to Classify Orphan asan Immediate Relative, then a completeapplication and fee must be submittedfor a subsequent application.

(2) There is no fee for the associated benefit request that was, or is, beingsubmitted.

(D) Immigrant visas. For processingimmigrant visas issued by theDepartment of State in embassies orconsulates: $165.

(E) Request for a search of indices tohistorical records to be used ingenealogical research (Form G–1041):$20. The search fee is not refundable.

(F) Request for a copy of historicalrecords to be used in genealogicalresearch (Form G–1041A): $20 for eachfile copy from microfilm, or $35 for eachfile copy from a textual record. In somecases, the researcher may be unable todetermine the fee, because theresearcher will have a file numberobtained from a source other thanUSCIS and therefore not know theformat of the file (microfilm or hardcopy). In this case, if USCIS locates thefile and it is a textual file, USCIS willnotify the researcher to remit theadditional $15. USCIS will refund the

records request fee only when it isunable to locate the file previouslyidentified in response to the indexsearch request.

(G) Application to Replace Permanent Resident Card (Form I–90). For filing anapplication for a Permanent ResidentCard (Form I–551) in lieu of an obsoletecard or in lieu of one lost, mutilated, ordestroyed, or for a change in name:$365.

(H) Application for Replacement/ Initial Nonimmigrant Arrival-DepartureDocument (Form I–102). For filing apetition for an application for Arrival/

Departure Record (Form I–94) orCrewman’s Landing Permit (Form I–95),in lieu of one lost, mutilated, ordestroyed: $330.

(I) Petition for a Nonimmigrant Worker (Form I–129). For filing apetition for a nonimmigrant worker:$325.

(J) Petition for Nonimmigrant Worker in CNMI (Form I–129CW). For anemployer to petition on behalf of one ormore beneficiaries: $325 plus asupplemental CNMI education fundingfee of $150 per beneficiary per year. The






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CNMI education funding fee cannot bewaived.

(K) Petition for Alien Fiance (e) (FormI–129F). For filing a petition to classifya nonimmigrant as a fiance e or fiance under section 214(d) of the Act: $340;there is no fee for a K–3 spouse asdesignated in 8 CFR 214.1(a)(2) who isthe beneficiary of an immigrant petition

filed by a United States citizen on aPetition for Alien Relative (Form I–130).

(L) Petition for Alien Relative (Form I– 130). For filing a petition to classifystatus 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 applicationfor travel document: $360. There is nofee for filing for a Refugee TravelDocument or advance parole if filed inconjunction with a pending orconcurrently filed Form I–485 with feethat was filed on or after July 30, 2007.

(N) Immigrant Petition for AlienWorker (Form I–140). For filing apetition to classify preference status of an alien on the basis of profession oroccupation under section 204(a) of theAct: $580.

(O) Application for AdvancePermission to Return to Unrelinquished Domicile (Form I–191). For filing anapplication for discretionary relief under section 212(c) of the Act: $585.

(P) Application for AdvancePermission to Enter as a Nonimmigrant (Form I–192). For filing an applicationfor discretionary relief under section212(d)(3) of the Act, except in an

emergency case or where the approvalof the application is in the interest of the United States Government: $585.

(Q) Application for Waiver for Passport and/or Visa (Form I–193). Forfiling an application for waiver of passport and/or visa: $585.

(R) Application for Permission toReapply for Admission into the United States After Deportation or Removal (Form I–212). For filing an applicationfor permission to reapply for anexcluded, deported or removed alien, analien who has fallen into distress, analien who has been removed as an alien

enemy, or an alien who has beenremoved at government expense in lieuof deportation: $585.

(S) Notice of Appeal or Motion (FormI–290B). For appealing a decision underthe immigration laws in any type of proceeding over which the Board of Immigration Appeals does not haveappellate 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 fromthis fee:

(1) A petition seeking classification asan Amerasian;

(2) A self-petitioning battered orabused spouse, parent, or child of aUnited 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 inIraq.

(U) Application to Register Permanent Residence or Adjust Status (Form I– 485). For filing an application forpermanent 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 theage of 14 years when it is:

(i ) Submitted concurrently foradjudication with the Form I–485 of a

parent;(ii ) The applicant is seeking to adjust

status as a derivative of his or herparent; and

(iii ) The child’s application is basedon them being a close relative of thesame individual who is the basis for thechild’s parent’s adjustment of status..

(3) There is no fee if an applicant isfiling as a refugee under section 209(a)of the Act.

(V) Application To Adjust Statusunder Section 245(i) of the Act (Supplement A to Form I–485).Supplement to Form I–485 for personsseeking to adjust status under theprovisions of section 245(i) of the Act:$1,000. There is no fee when theapplicant is an unmarried child lessthan 17 years of age, or when theapplicant is the spouse, or theunmarried child less than 21 years of age of a legalized alien and who isqualified for and has applied forvoluntary departure under the familyunity program.

(W) Immigrant Petition by AlienEntrepreneur (Form I–526). For filing apetition for an alien entrepreneur:$1,500.

(X) Application To Extend/Change

Nonimmigrant Status (Form I–539). Forfiling an application to extend or changenonimmigrant status: $290.

(Y) Petition To Classify Orphan as anImmediate Relative (Form I–600). Forfiling a petition to classify an orphan asan immediate relative for issuance of animmigrant visa under section 204(a) of the Act. Only one fee is required whenmore than one petition is submitted bythe same petitioner on behalf of orphanswho are brothers or sisters: $720.

(Z) Application for AdvanceProcessing of Orphan Petition (Form I–

600A). For filing an application foradvance processing of orphan petition.(When more than one petition issubmitted by the same petitioner on

behalf of orphans who are brothers orsisters, only one fee will be required.):$720. No fee is charged if Form I–600has not yet been submitted inconnection with an approved Form I–

600A subject to the followingconditions:

(1) The applicant requests anextension of the approval in writing andthe request is received by USCIS priorto the expiration date of approval.

(2) The applicant’s home study isupdated and USCIS determines thatproper care will be provided to anadopted orphan.

(3) A no fee extension is limited toone occasion. If the Form I–600Aapproval extension expires prior tosubmission of an associated Form I–600,then a complete application and fee

must be submitted for any subsequentapplication.

(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 theForeign Residence Requirement (Under Section 212(e) of the Immigration and Nationality Act, as Amended) (Form I– 612). For filing an application for waiverof the foreign-residence requirementunder section 212(e) of the Act: $585.

(CC) Application for Status as aTemporary Resident Under Section

245A of the Immigration and Nationality Act (Form I–687). For filingan application for status as a temporaryresident under section 245A(a) of theAct: $1,130.

(DD) Application for Waiver of Grounds of Inadmissibility Under Sections 245A or 210 of the Immigrationand Nationality Act (Form I–690). Forfiling an application for waiver of aground of inadmissibility under section212(a) of the Act as amended, inconjunction with the application undersections 210 or 245A of the Act, or apetition under section 210A of the Act:$200.

(EE) Notice of Appeal of DecisionUnder Sections 245A or 210 of theImmigration and Nationality Act (or aPetition Under Section 210A of the Act)(Form I–694). For appealing the denialof an application under sections 210 or245A of the Act, or a petition undersection 210A of the Act: $755.

(FF) Petition To Remove theConditions of Residence Based onMarriage (Form I–751). For filing apetition to remove the conditions onresidence based on marriage: $505.


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(GG) Application for Employment Authorization (Form I–765). $380; nofee if filed in conjunction with apending 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 FormI–800 filed for a child on the basis of anapproved Application for Determinationof Suitability To Adopt a Child from aConvention Country (Form I–800A)during the approval period.

(2) If more than one Form I–800 isfiled during the approval period fordifferent children, the fee is $720 for thesecond and each subsequent petitionsubmitted.

(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 aConvention Country (Form I–800A). Forfiling an application for determinationof suitability to adopt a child from aConvention country: $720.

(JJ) Request for Action on Approved Application for Determination of Suitability To Adopt a Child From aConvention Country (Form I–800A,Supplement 3). This filing fee is notcharged 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 firstextension of the approval of the Form I–800A: $360.

(KK) Application for Family Unity Benefits (Form I–817). For filing anapplication for voluntary departureunder the Family Unity Program: $435.

(LL) Application for Temporary Protected Status (Form I–821). For firsttime applicants: $50. There is no fee forre-registration.

(MM) Application for Action on anApproved Application or Petition (FormI–824). For filing for action on anapproved application or petition: $405.

(NN) Petition by Entrepreneur ToRemove Conditions (Form I–829). Forfiling a petition by entrepreneur toremove conditions: $3,750.

(OO) Application for suspension of deportation or special rule cancellationof removal (pursuant to section 203 of Pub. L. 105–100) (Form I–881):

(1) $285 for adjudication by theDepartment of Homeland Security,except that the maximum amountpayable by family members (related ashusband, wife, unmarried child under21, unmarried son, or unmarried

daughter) who submit applications atthe same time shall be $570.

(2) $165 for adjudication by theImmigration Court (a single fee of $165will be charged whenever applicationsare filed by two or more aliens in thesame proceedings). (3) The $165 fee isnot required if the Form I–881 isreferred to the Immigration Court by the

Department of Homeland Security.(PP) Application for authorization to

issue certification for health careworkers (Form I–905): $230.

(QQ) Request for Premium Processing Service (Form I–907). The fee must bepaid in addition to, and in a separateremittance from, other filing fees. Therequest for premium processing fee will

be adjusted annually by notice in theFederal Register based on inflationaccording to the Consumer Price Index(CPI). The fee to request premiumprocessing: $1,225. The fee for PremiumProcessing Service may not be waived.

(RR) Civil Surgeon Designation. Forfiling an application for civil surgeondesignation: $615.

(SS) Application for Regional Center under the Immigrant Investor Pilot Program (Form I–924). For filing anapplication for regional center under theImmigrant Investor Pilot Program:$6,230.

(TT) Petition for Qualifying Family Member of a U–1 Nonimmigrant (FormI–929). For U–1 principal applicant tosubmit for each qualifying familymember who plans to seek an immigrantvisa or adjustment of U status: $215.

(UU) Application to File Declaration

of Intention (Form N–300). For filing anapplication for declaration of intentionto become a U.S. citizen: $250.

(VV) Request for a Hearing on aDecision in Naturalization Proceedings(Under Section 336 of the Act) (Form N– 336). For filing a request for hearing ona decision in naturalization proceedingsunder section 336 of the Act: $650.

(WW) Application for Naturalization(Form N–400). For filing an applicationfor naturalization (other than suchapplication filed on or after October 1,2004, by an applicant who meets therequirements 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 applicationfor benefits under section 316(b) or 317of the Act: $330.

(YY) Application for Replacement Naturalization/Citizenship Document (Form N–565). For filing an applicationfor a certificate of naturalization ordeclaration of intention in lieu of acertificate or declaration alleged to have

been lost, mutilated, or destroyed; for a

certificate of citizenship in a changedname under section 343(c) of the Act; orfor a special certificate of naturalizationto obtain recognition as a citizen of theUnited States by a foreign state undersection 343(b) of the Act: $345.

(ZZ) Application for Certificate of Citizenship (Form N–600). For filing anapplication for a certificate of

citizenship under section 309(c) orsection 341 of the Act for applicationsfiled on behalf of a biological child:$600. For applications filed on behalf of an adopted child: $550.

(AAA) Application for Citizenshipand Issuance of Certificate under Section 322 (Form N–600K). For filingan application for citizenship andissuance of certificate under section 322of the Act: $600, for an application filedon behalf of a biological child and $550for an application filed on behalf of anadopted child.

(ii) Other DHS immigration fees. The

following fees are applicable to one ormore 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 theUnited States by an approvedparticipant in a designated vehicle:$80.00, with the maximum amount of $160.00 payable by a family (husband,wife, and minor children under 18years-of-age). Payable followingapproval of the application but beforeuse of the DCL by each participant. Thisfee is non-refundable, but may be

waived by the district director. If aparticipant wishes to enroll more thanone vehicle for use in the PORTPASSsystem, he or she will be assessed withan additional fee of: $42 for eachadditional vehicle enrolled.

(B) Form I–17. For filing a petition forschool certification: $1,700, plus a sitevisit fee of $655 for each location listedon the form.

(C) Form I–68. For application forissuance of the Canadian Border BoatLanding Permit under section 235 of theAct: $16.00. The maximum amountpayable 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 applicationfor stay of deportation under part 243 of this chapter: $155.00.


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(G) Form I–570. For filing applicationfor issuance or extension of refugeetravel document: $45.00

(H) Form I–823. For application to aPORTPASS program under section 286of the Act—$25.00, with the maximumamount of $50.00 payable by a family(husband, wife, and minor childrenunder 18 years of age). The application

fee may be waived by the districtdirector. If fingerprints are required, theinspector will inform the applicant of the current Federal Bureau of Investigation fee for conductingfingerprint checks prior to accepting theapplication fee. Both the application fee(if not waived) and the fingerprint feemust be paid to CBP before theapplication will be processed. Thefingerprint fee may not be waived. Forreplacement of PORTPASSdocumentation during the participationperiod: $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 SEVISfee for certain J exchange visitors: $180.For remittance of the I–901 SEVIS feefor J–1 au pairs, camp counselors, andparticipants in a summer work/travelprogram: $35. There is no I–901 SEVISfee remittance obligation for J exchangevisitors in Federally-funded programswith a program identifier designationprefix that begins with G–1, G–2, G–3 orG–7.

(J) Special statistical tabulations—acharge will be made to cover the cost of the work involved: DHS Cost.

(K) Set of monthly, semiannual, or

annual tables entitled ‘‘Passenger TravelReports via Sea and Air’’: $7.00.Available from DHS, then Immigration& Naturalization Service, for years 1975and before. Later editions are availablefrom the United States Department of Transportation, contact: United StatesDepartment of Transportation,Transportation Systems Center, KendallSquare, Cambridge, MA 02142.

(L) Classification of a citizen of Canada to be engaged in businessactivities at a professional levelpursuant to section 214(e) of the Act(Chapter 16 of the North American Free

Trade Agreement): $50.00.(M) Request for authorization forparole of an alien into the United States:$65.00.

(iii) Fees for copies of records. Feesfor production or disclosure of recordsunder 5 U.S.C. 552 shall be charged inaccordance with the regulations of theDepartment of Homeland Security at 6CFR 5.11.

(iv) Adjustment to fees. The feesprescribed in paragraph (b)(1)(i) of thissection may be adjusted annually bypublication of an inflation adjustment.

The inflation adjustment will beannounced by a publication of a noticein the Federal Register. The adjustmentshall be a composite of the Federalcivilian pay raise assumption and non-pay inflation factor for that fiscal yearissued by the Office of Management andBudget for agency use in implementingOMB Circular A–76, weighted by pay

and non-pay proportions of totalfunding for that fiscal year. If Congressenacts a different Federal civilian payraise percentage than the percentageissued by OMB for Circular A–76, theDepartment of Homeland Security mayadjust the fees, during the current yearor a following year to reflect the enactedlevel. The prescribed fee or charge shall

be the amount prescribed in paragraph(b)(1)(i) of this section, plus the latestinflation adjustment, rounded to thenearest $5 increment.

(v) Fees for immigration court and Board of Immigration Appeals. Fees for

proceedings before immigration judgesand the Board of Immigration Appealsare provided in 8 CFR 1103.7.

(c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary waiver of thefees provided in paragraph (b)(1)(i) of this section are limited as follows:

(i) The party requesting the benefit isunable to pay the prescribed fee.

(ii) A waiver based on inability to payis consistent with the status or benefit

being sought including requests thatrequire demonstration of the applicant’sability to support himself or herself, orindividuals who seek immigration

status based on a substantial financialinvestment.(2) Requesting a fee waiver. To request

a fee waiver, a person requesting animmigration benefit must submit awritten request for permission to havetheir request processed withoutpayment of a fee with their benefitrequest. The request must state theperson’s belief that he or she is entitledto or deserving of the benefit requested,the reasons for his or her inability topay, and evidence to support thereasons indicated. There is no appeal of the denial of a fee waiver request.

(3) USCIS fees that may be waived. Nofee relating to any application, petition,appeal, motion, or request made to U.S.Citizenship and Immigration Servicesmay 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 UnrelinquishedDomicile,

(v) Notice of Appeal or Motion,

(vi) Application for EmploymentAuthorization,

(vii) Application for Family UnityBenefits

(viii) Application for TemporaryProtected Status,

(ix) Application to File Declaration of Intention, Request for a Hearing on aDecision 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 Section322.

(4) The following fees may be waivedonly in the case of an alien in lawfulnonimmigrant status under sections101(a)(15)(T) or (U) of the Act; anapplicant 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 toadjustment of status:

(i) Application for AdvancePermission to Enter as Nonimmigrant;

(ii) Application for Waiver forPassport and/or Visa;

(iii) Application to RegisterPermanent Residence or Adjust Status;

(iv) Application for Waiver of Grounds of Inadmissibility.

(5) Immigration Court fees. Theprovisions relating to the authority of the immigration judges or the Board towaive fees prescribed in paragraph (b) of

this section in cases under theirjurisdiction can be found at 8 CFR1003.8 and 1003.24.

(6) Fees under the Freedom of Information Act (FOIA). FOIA fees may

be waived or reduced if DHS determinesthat such action would be in the publicinterest because furnishing theinformation can be considered asprimarily benefiting the general public.

(d) Exceptions and exemptions. TheDirector of USCIS may approve andsuspend exemptions from any feerequired by paragraph (b)(1)(i) of thissection or provide that the fee may be

waived for a case or specific class of cases that is not otherwise provided inthis section, if the Director determinesthat such action would be in the publicinterest, and the action is consistentwith other applicable law. Thisdiscretionary authority will not bedelegated to any official other than theUSCIS Deputy Director.

(e) Premium processing service. Aperson submitting a request to USCISmay request 15 calendar day processingof certain employment-basedimmigration benefit requests.


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(1) Submitting a request for premium processing. A request for premiumprocessing must be submitted on theform prescribed by USCIS, including therequired fee, and submitted to theaddress specified on the forminstructions.

(2) 15-day limitation. The 15 calendarday processing period begins whenUSCIS receives the request for premiumprocessing accompanied by an eligibleemployment-based immigration benefitrequest.

(i) If USCIS cannot reach a finaldecision on a request for whichpremium processing was requested, asevidenced by an approval notice, denialnotice, a notice of intent to deny, or arequest for evidence, USCIS will refundthe premium processing service fee, butcontinue to process the case.

(ii) USCIS may retain the premiumprocessing fee and not reach aconclusion on the request within 15days, and not notify the person whofiled the request, if USCIS opens aninvestigation for fraud ormisrepresentation relating to the benefitrequest.

(3) Requests eligible for premium processing.

(i) USCIS will designate the categoriesof employment-related benefit requeststhat are eligible for premium processing.

(ii) USCIS will announce by itsofficial Internet Web site, currentlyhttp://www.uscis.gov, those requests forwhich premium processing may be

requested, the dates upon which suchavailability commences and ends, andany conditions that may apply.

(f) Authority to certify records. TheDirector of USCIS or such officials as heor she may designate, may certifyrecords when authorized under 5 U.S.C.552 or any other law to provide suchrecords.

PART 204—IMMIGRANT PETITIONS

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

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

5. Section 204.6 is amended byrevising paragraph (m)(6) to read asfollows:

§ 204.6 Petitions for employment creationaliens.

* * * * *(m) * * *(6) Termination of participation of

regional centers. To ensure that regionalcenters continue to meet therequirements of section 610(a) of theAppropriations Act, a regional centermust provide USCIS with updatedinformation to demonstrate the regionalcenter is continuing to promoteeconomic growth, improved regionalproductivity, job creation, or increaseddomestic capital investment in theapproved geographic area. Suchinformation must be submitted to USCIS

on an annual basis, on a cumulative basis, and/or as otherwise requested byUSCIS, using a form designated for thispurpose. 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 therequired information or upon adetermination that the regional centerno longer serves the purpose of promoting economic growth, includingincreased export sales, improvedregional productivity, job creation, andincreased domestic capital investment.The notice of intent to terminate shall

be made upon notice to the regionalcenter and shall set forth the reasons fortermination. The regional center must

be provided thirty days from receipt of the notice of intent to terminate to offerevidence in opposition to the ground orgrounds alleged in the notice of intentto terminate. If USCIS determines thatthe regional center’s participation in thePilot Program should be terminated,USCIS shall notify the regional center of the decision and of the reasons fortermination. The regional center mayappeal the decision within thirty days

after the service of notice to the USCISas provided in 8 CFR 103.3.

* * * * *

PART 244—TEMPORARY PROTECTEDSTATUS FOR NATIONALS OFDESIGNATED 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.

§244.20 [Removed]

5. Section 244.20 is removed.

PART 274a—CONTROL OFEMPLOYMENT OF ALIENS

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

Authority: 8 U.S.C. 1101, 1103, 1324a;Title VII of Public Law 110–229; 8 CFR part2.

7. Section 274a.12 is amended by

revising paragraphs (a)(8) and (a)(11) toread as follows:

§ 274a.12 Classes of aliens authorized toaccept employment.

(a) * * *(8) An alien admitted to the United

States as a nonimmigrant pursuant tothe Compact of Free Association

between the United States and of theFederated States of Micronesia, theRepublic of the Marshall Islands, or theRepublic of Palau;

* * * * *(11) An alien whose enforced

departure from the United States has been deferred in accordance with adirective from the President of theUnited States to the Secretary.Employment is authorized for theperiod of time and under the conditionsestablished by the Secretary pursuant tothe Presidential directive;

* * * * *

Janet Napolitano,

Secretary.

[FR Doc. 2010–13991 Filed 6–9–10; 8:45 am]

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2010-13991