Proposed Rule2022-27066
U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements
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Published
January 4, 2023
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) proposes to adjust certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a comprehensive biennial fee review and determined that its costs have increased considerably since its previous fee adjustment due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees. USCIS cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations. DHS proposes to adjust USCIS fees, add new fees for certain benefit requests, establish distinct fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms. DHS is also proposing additional fee exemptions for certain humanitarian categories and changes to certain other immigration benefit request requirements. If DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners or be able to keep pace with incoming benefit request workload, and USCIS processing times and backlogs will not improve. DHS intends for this rulemaking to provide the funding required for USCIS to improve service levels.
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[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Proposed Rules]
[Pages 402-602]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27066]
[[Page 401]]
Vol. 88
Wednesday,
No. 2
January 4, 2023
Part II
Department of Homeland Security
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8 CFR Part 103, 106, et al.
U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Proposed Rule
Federal Register / Vol. 88 , No. 2 / Wednesday, January 4, 2023 /
Proposed Rules
[[Page 402]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 106, 204, 212, 214, 240, 244, 245, 245a, 264 and
274a
[CIS No. 2687-21; DHS Docket No. USCIS 2021-0010]
RIN 1615-AC68
U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) proposes to adjust
certain immigration and naturalization benefit request fees charged by
U.S. Citizenship and Immigration Services (USCIS). USCIS conducted a
comprehensive biennial fee review and determined that its costs have
increased considerably since its previous fee adjustment due to
expanded humanitarian programs, higher demand, increased processing
times, and a need for more USCIS employees. USCIS cannot maintain
adequate service levels with the effects of the budget cuts and its
current level of spending without lasting impacts on operations. DHS
proposes to adjust USCIS fees, add new fees for certain benefit
requests, establish distinct fees for petitions for nonimmigrant
workers, and limit the number of beneficiaries on certain forms. DHS is
also proposing additional fee exemptions for certain humanitarian
categories and changes to certain other immigration benefit request
requirements. If DHS does not adjust USCIS fees it will not have the
resources it needs to provide adequate service to applicants and
petitioners or be able to keep pace with incoming benefit request
workload, and USCIS processing times and backlogs will not improve. DHS
intends for this rulemaking to provide the funding required for USCIS
to improve service levels.
DATES: Written comments must be submitted on this proposed rule on or
before March 6, 2023. The electronic Federal Docket Management System
will accept comments before midnight eastern time at the end of that
day.
Listening session date: DHS will hold virtual public listening
sessions during which the public may speak directly to USCIS on the
questions raised in this proposed rule. A session will be held on
January 11, 2023 at 2:00 p.m. ET.
Listening sessions registration date: For an opportunity to provide
oral comments during the virtual public listening sessions, you must
register before the listening session in question. For registration
instructions, see the Public Participation section below.
ADDRESSES: You may submit comments on the entirety of this proposed
rule package, identified by DHS Docket No. USCIS-2021-0010, through the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS. Please note that
DHS and USCIS cannot accept any comments that are hand delivered or
couriered. In addition, USCIS cannot accept comments contained on any
form of digital media storage devices, such as CDs/DVDs and USB drives.
Due to Coronavirus Disease (COVID-19), USCIS is also not accepting
mailed comments at this time. If you cannot submit your comment by
using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes,
Chief, Regulatory Coordination Division, Office of Policy and Strategy,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, by telephone at (202) 658-9621 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Carol Cribbs, Deputy Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746;
telephone 240-721-3000 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone numbers
above via TTY by calling the toll-free Federal Information Relay
Service at 877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Summary of Economic Impacts
B. Summary of Proposed Provisions
C. Summary of Current and Proposed Fees
III. Basis for the Fee Review
A. Legal Authority and Guidance
B. Effect of FY 2022 Appropriations
C. Immigration Examinations Fee Account
D. Full Cost Recovery
E. The Use of Premium Processing Funds Under the Emergency
Stopgap USCIS Stabilization Act
F. Fee Review History
1. Current State of USCIS Fee Schedule Regulations
2. Previous Fee Rules
3. Current Fees
IV. Fee-Setting Approach--Reversal of 2020 Fee Rule
V. FY 2022/2023 Immigration Examinations Fee Account Fee Review
A. USCIS Projected Costs and Revenue
1. USCIS Budget History
2. FY 2022/2023 Cost Projections
a. General Expenses
b. Payroll
c. Related Rulemakings
d. Cost Summary
3. FY 2022/2023 Revenue Projections
4. Projected Cost and Revenue Differential
B. Methodology
1. Volume
a. Workload Volume and Volume Projection Committee
b. Fee-Paying Volume
2. Completion Rates
3. Assessing Proposed Fees
4. Funding the Asylum Program With Employer Petition Fees
C. Exclusion of Temporary or Uncertain Programs
D. Consideration of DACA Rulemaking
E. Fee-Related Issues for Consideration
1. Accommodating E-filing and Form Flexibility
2. Processing Time Outlook
VI. Fee Waivers
A. Background
B. The 2020 Fee Rule Fee Waiver Changes
C. Inability To Pay
D. USCIS Director's Discretionary Fee Waivers and Exemptions
E. Requirements To Submit Fee Waiver Form
F. Form and Policy Changes
G. Request for Comments
VII. Fee Exemptions
A. Codification of Benefit Requests With No Fees and Exemptions
of Certain Categories or Classifications From Fees
B. Proposed Fee Exemptions
1. Victims of Severe Form of Trafficking (T Nonimmigrants)
2. Victims of Qualifying Criminal Activity (U Nonimmigrants)
3. VAWA Form I-360 Self-Petitioners Derivatives
4. Conditional Permanent Residents Filing a Waiver of the Joint
Filing Requirement Based on Battery or Extreme Cruelty
5. Abused Spouses and Children Seeking Benefits Under CAA and
HRIFA
6. Abused Spouses and Children Seeking Benefits Under NACARA
7. Abused Spouses and Children of LPRs or U.S. Citizens Under
INA Sec. 240A(b)(2)
8. Special Immigrant Afghan or Iraqi Translators or
Interpreters, Iraqi Nationals Employed by or on Behalf of the U.S.
Government, or Afghan Nationals Employed by or on Behalf of the U.S.
Government or Employed by the International Security Assistance
Force and Derivative Beneficiaries
9. Special Immigrant Juveniles
10. Temporary Protected Status
11. Asylees
12. Refugees
13. Person Who Served Honorably on Active Duty in the U.S. Armed
Forces Filing Under INA Sec. 101(A)(27)(K)
[[Page 403]]
14. Summary of Proposed Fee Exemptions
C. Request for Comments
VIII. Other Proposed Changes in the FY 2022/2023 Fee Schedule
A. Clarifying Dishonored Fee Check Re-Presentment Requirement
and Fee Payment Method
B. Payment Method
C. Non-Refundable Fees
D. Eliminating $30 Returned Check Fee
E. Changes to Biometric Services Fee
1. Incorporating Biometric Activities Into Immigration Benefit
Request Fees
2. Retaining the Separate Biometric Services Fee for Temporary
Protected Status
3. Executive Office for Immigration Review Biometric Services
Fee
F. Naturalization and Citizenship-Related Forms
1. Application for Naturalization (Form N-400) Fee
2. Request for Reduced Fee (Form I-942)
3. Military Naturalization and Certificates of Citizenship
4. Application for Certificate of Citizenship (Form N-600) and
Application for Citizenship and Issuance of Certificate Under
Section 322 (Form N-600K)
5. Proposed Changes to Other Naturalization-Related Application
Fees
6. Request for Comments
G. Fees for Online Filing
H. Form I-485, Application to Register Permanent Residence or
Adjust Status
1. Interim Benefits
2. Form I-485 Fee for Child Under 14, Filing With Parent
3. INA Sec. 245(i) Statutory Sum
I. Continuing To Hold Refugee Travel Document Fee for Asylees to
the Department of State Passport Fee
J. Form I-131A, Carrier Documentation
K. Separating Fees for Form I-129, Petition for a Nonimmigrant
Worker, by Nonimmigrant Classification
1. Form I-129, Petition for Nonimmigrant Worker: H-1
Classifications
2. Form I-129, Petitions for H-2A or H-2B Classifications
3. Form I-129, Petition for Nonimmigrant Worker: L
Classification
4. Form I-129, Petition for Nonimmigrant Worker: O
Classifications
5. Form I-129, Petition for Nonimmigrant Worker: E and TN
Classifications
6. Form I-129, Petition for Nonimmigrant Worker: H-3, P, Q, or R
Classifications
7. Separating Form I-129 Into Multiple Forms
8. Commonwealth of the Northern Mariana Islands Fees
9. H-1B Electronic Registration Fee
L. Premium Processing--Business Days
M. Permitting Combined Payment of the Premium Processing Fee
N. Intercountry Adoptions
1. Adjustment to Proposed Fees for Certain Intercountry
Adoption-Specific Forms
2. Clarification of Fee Exception for Birth Siblings
3. Suitability and Eligibility Approval Validity Period
4. Form I-600A/I-600, Supplement 3, Request for Action on
Approved Form I-600A/I-600
a. Suitability and Eligibility Extensions
b. New Approval Notices
c. Change of Country
d. Duplicate Approval Notices
e. Hague Adoption Convention Transition Cases
5. Form I-800A, Supplement 3, Request for Action on Approved
Form I-800A
O. Immigrant Investors
1. Immediate Effects of the EB-5 Reform and Integrity Act of
2022
2. Background of the EB-5 Program
3. Proposed EB-5 Program Fees
P. Genealogy and Records
1. Genealogy Search and Records Requests
2. Request for a Certificate of Non-Existence
Q. Fees Shared by CBP and USCIS
R. Form I-881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal (Pursuant to Section 203 of
Public Law 105-100 (NACARA))
S. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
T. Adjusting Fees for Inflation
U. Miscellaneous Technical and Procedural Changes
IX. Proposed Fee Adjustments to IEFA Immigration Benefits
A. Impact of Fees
B. USCIS Fiscal Health
C. Planned Increases in Efficiency
X. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. Paperwork Reduction Act
I. National Environmental Policy Act
J. Family Assessment
List of Acronyms and Abbreviations
AAPA Afghan Allies Protection Act of 2009
ABC Activity-Based Costing
ACWIA American Competitiveness and Workforce Improvement Act
AFM Adjudicator's Field Manual
APEC U.S. Asia-Pacific Economic Cooperation
ASC Application Support Center
ASVVP Administrative Site Visit and Verification Program
BLS Bureau of Labor Statistics
CAA Cuban Adjustment Act
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFO Chief Financial Officer
CFO Act Chief Financial Officers Act of 1990
CNMI Commonwealth of the Northern Mariana Islands
COVID Coronavirus Disease
CPI Consumer Price Index
CPI-U Consumer Price Index for All Urban Consumers
CPR Conditional Permanent Residents
CRA Congressional Review Act
DACA Deferred Action for Childhood Arrivals
DCL Dedicated Commuter Lane
DHS Department of Homeland Security
DoD Department of Defense
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
EAD Employment Authorization Document
EB-5 Employment-Based Immigrant Visa, Fifth Preference
EIN Employer Identification Number
E.O. Executive Order
EOIR Executive Office for Immigration Review
FBI Federal Bureau of Investigation
FDNS Fraud Detection and National Security Directorate
FOIA Freedom of Information Act
FPG Federal Poverty Guidelines
FY Fiscal Year
GAO U.S. Government Accountability Office
GE General Expenses
GPO Government Publishing Office
HHS U.S. Department of Health and Human Services
HRIFA Haitian Refugee Immigration Fairness Act
IEFA Immigration Examinations Fee Account
ILRC Immigrant Legal Resource Center v. Wolf
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IOAA Independent Offices Appropriations Act
IPO Immigrant Investor Program Office
IRFA Initial Regulatory Flexibility Analysis
IRIS Immigration Records and Identity Services
ISAF International Security Assistance Force
LPR Lawful Permanent Resident
NACARA Nicaraguan Adjustment and Central American Relief Act
NAFTA North American Free Trade Agreement
NAICS North American Industry Classification System
NATO North Atlantic Treaty Organization
NCE New Commercial Enterprise
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
NRC National Records Center
NWIRP Northwest Immigration Rights Project v. United States
Citizenship and Immigration Services
OAW Operation Allies Welcome
OIG DHS Office of Inspector General
OMB Office of Management and Budget
OP Operating Plan
OPQ Office of Performance and Quality
OPT Optional Practical Training
PRA Paperwork Reduction Act
PRC Permanent Resident Card
RAIO Refugee, Asylum, and International Operations Directorate
RAP Resource Allocation Plan
RFA Regulatory Flexibility Act
RFE Request for Evidence
[[Page 404]]
RIA Regulatory Impact Analysis
SAM Staffing Allocation Model
SAVE Systematic Alien Verification for Entitlements
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SCOPS Service Center Operations
SEA Small Entity Analysis
SEVP Student and Exchange Visitor Program
SIJ Special Immigrant Juvenile
SOFA Status of Forces Agreement
STEM OPT Science, Technology, Engineering, and Mathematics Optional
Practical Training
TEA Targeted Employment Area
TECRO Taipei Economic and Cultural Representative Office
TPS Temporary Protected Status
TVPRA William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UMRA Unfunded Mandates Reform Act
USCIS U.S. Citizenship and Immigration Services
USMCA U.S. Mexico-Canada Agreement
VAWA Violence Against Women Act
VPC Volume Projection Committee
I. Public Participation
DHS invites you to participate in this rulemaking by submitting
written data, views, or arguments on all aspects of this proposed rule.
Comments providing the most assistance to DHS will reference a specific
portion of the proposed rule, explain the reason for any recommended
change, and include data, information, or authority that supports the
recommended change.
Instructions: All submissions should include the agency name and
DHS Docket No. USCIS-2021-0010 for this rulemaking. Providing comments
is entirely voluntary. Regardless of how you submit your comment, DHS
will post all submissions, without change, to the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and will include any personal
information you provide. Because the information you submit will be
publicly available, you should consider limiting the amount of personal
information in your submission. DHS may withhold information provided
in comments from public viewing if it determines that such information
is offensive or may affect the privacy of an individual. For additional
information, please read the Privacy Act notice available through the
link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Registration for listening session: To register and receive
information on how to attend the virtual public listening sessions,
please go to: <a href="https://www.uscis.gov/outreach/upcoming-national-engagements">https://www.uscis.gov/outreach/upcoming-national-engagements</a>.
Docket: For access to the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and enter this rulemaking's eDocket number: USCIS-2021-0010. The docket
includes additional documents that support the analysis contained in
this proposed rule to determine the specific fees that are proposed.
These documents include:
<bullet> Fiscal Year (FY) 2022/2023 Immigration Examinations Fee
Account (IEFA) Fee Review Supporting Documentation (supporting
documentation);
<bullet> FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule
documentation);
<bullet> FY 2022/2023 IEFA Fee Review Model Documentation (model
documentation);
<bullet> FY 2022/2023 Fee Review Regulatory Impact Analysis (RIA);
and
<bullet> FY 2022/2023 Fee Review Small Entity Analysis (SEA).
You may review these documents on the electronic docket. The
software \1\ used to compute the immigration benefit request \2\ fees
and biometric fees \3\ is a commercial product licensed to USCIS that
may be accessed on-site, by appointment, by calling 240-721-6080.\4\
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\1\ USCIS uses commercially available activity-based costing
(ABC) software, CostPerform, to create financial models as described
in the supporting documentation.
\2\ Benefit request means any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit, whether such request is filed on a paper
form or submitted in an electronic format, provided such request is
submitted in a manner prescribed by DHS for such purpose. See 8 CFR
1.2.
\3\ DHS uses the terms biometric fees, biometric services fees,
and biometric fee synonymously in this rule to describe the cost and
process for capturing, storing, or using biometrics.
\4\ This proposed rule describes key inputs to the ABC model
(for example, budget, workload forecasts, staffing, and completion
rates), both here and in the supporting documentation.
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FAQ: To provide maximum transparency and clarity to the public on
this proposed rule, DHS has provided a list of frequently asked
questions and answers (FAQ) that summarize the content and context of
this rule in an easily readable and understandable summary fashion. We
have placed the FAQ in the eDocket USCIS-2021-0010, as well as on the
USCIS website at <a href="https://www.uscis.gov/proposed-fee-rule-faqs">https://www.uscis.gov/proposed-fee-rule-faqs</a>.
II. Executive Summary
DHS proposes to adjust the USCIS fee schedule, which specifies the
fee amount charged for each immigration and naturalization benefit
request.\5\ DHS last adjusted the fee schedule on December 23, 2016, by
a weighted average increase of 21 percent. See 81 FR 73292 (Oct. 24,
2016) (final rule) (FY 2016/2017 fee rule). USCIS budget and revenue
estimates at the time indicated there would be an average annual
deficit of $560 million without adjusting fees. DHS issued a final rule
to adjust the USCIS fee schedule on August 3, 2020, by a weighted
average of 20 percent, reflecting the results of the FY 2019/2020 USCIS
fee review. See 85 FR 46788 (2020 fee rule). DHS estimated an average
annual USCIS deficit of $1,035.9 million. The rule was scheduled to
become effective on October 2, 2020. However, that rule was
preliminarily enjoined, and USCIS has not implemented the fees set out
in the 2020 fee rule.\6\ In this rule, DHS proposes to replace the 2020
fee rule in its entirety by revising the regulatory changes codified by
the enjoined 2020 fee rule. Certain changes in the 2020 fee rule are
proposed to be retained by being republished.
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\5\ For the purposes of this rulemaking, DHS is including all
requests funded from the IEFA in the term ``benefit request'' or
``immigration benefit request'' although the form or request may not
technically relate to an immigration or naturalization benefit. For
example, Deferred Action for Childhood Arrivals (DACA) is solely an
exercise of prosecutorial discretion by DHS, is not an immigration
benefit, and is called a ``benefit request'' solely for purposes of
this rule. Likewise, a request for genealogy records is not a
request for an immigration benefit. For historic receipts and
completion information, see USCIS immigration and citizenship data
available at <a href="https://www.uscis.gov/tools/reports-studies/immigration-forms-data">https://www.uscis.gov/tools/reports-studies/immigration-forms-data</a>.
\6\ Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D.
Cal. 2020) (ILRC); Nw. Immigrant Rights Project v. USCIS, 496 F.
Supp. 3d 31 (D.D.C. 2020) (NWIRP).
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USCIS is primarily funded by fees charged to applicants and
petitioners for immigration and naturalization benefit requests. Fees
collected from individuals and entities filing immigration benefit
requests are deposited into the Immigration Examinations Fee Account
(IEFA). These fee collections fund the cost of fairly and efficiently
adjudicating immigration benefit requests, including those provided
without charge to refugee, asylum, and certain other applicants or
petitioners. The focus of this fee review is the fees that DHS has
established and is authorized by INA section 286(m), 8 U.S.C 1356(m),
to establish or change, collect, and deposit into the IEFA, which
comprised approximately 96 percent of USCIS' total FY 2021 enacted
spending authority; this fee review does not focus on fees that USCIS
is required to collect but cannot change. This rule also proposes to
revise the genealogy program fees established under INA section 286(t),
8 U.S.C. 1356(t), and those funds are also deposited into the IEFA.
Premium processing funds
[[Page 405]]
established under INA section 286(u), 8 U.S.C. 1356(u) are also IEFA
fees, but premium processing fees are not proposed to be changed in
this rule.
In accordance with the requirements and principles of the Chief
Financial Officers Act of 1990 (CFO Act), codified at 31 U.S.C. 901-03,
and Office of Management and Budget (OMB) Circular A-25, USCIS conducts
biennial reviews of the non-statutory fees deposited into the IEFA.
Following such reviews, DHS proposes fee adjustments, if necessary, to
ensure that USCIS fees recover the full cost of operating USCIS as
authorized by INA section 286(m), 8 U.S.C. 1356(m). USCIS has completed
a fee review for the FY 2022/2023 biennial period. The primary
objective of any IEFA fee review is to determine whether current
immigration and naturalization benefit fees will generate sufficient
revenue to fund the anticipated operating costs associated with
administering the nation's legal immigration system. The results
indicate that current fee levels are insufficient to recover the full
cost of operations funded by the IEFA. Therefore, DHS proposes to
adjust USCIS fees.
In addition to the requirements of the CFO Act, there are other
important reasons for conducting the FY 2022/2023 fee review. The fee
review:
<bullet> Allows for an assessment of USCIS policy changes, staffing
levels, costs, and revenue and other assessments. USCIS evaluates
operational requirements and makes informed decisions concerning
program scaling, resource planning, and staffing allocations; and
<bullet> Provides those served by USCIS with an opportunity to
submit comments on the effect of fee changes.
USCIS calculates its fees to recover the full cost of operations
funded by the IEFA. These costs do not include limited appropriations
provided by Congress. If USCIS continues to operate at current fee
levels, it would experience an average annual shortfall (the amount by
which expenses exceed revenue) of $1,868.2 million. This projected
shortfall poses a risk of degrading USCIS operations funded by the
IEFA.
Although this fee schedule represents a 40-percent overall weighted
average increase to ensure full cost recovery, more than a million
immigration benefit requestors each year would see no increase or a
decrease in costs because their benefit requests have no fee, are fee
exempt, or are fee waived.\7\ In FY 2022/2023, USCIS estimates
approximately 8 million annual average receipts for workload with fees.
Of those, USCIS estimates approximately 7 million may pay fees. DHS
proposes to maintain the current fee waiver policy which was
established in 2011.\8\
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\7\ USCIS uses a weighted average instead of a straight average
because of the difference in volume by immigration benefit type and
the resulting effect on fee revenue. The 40-percent weighted average
increase is a change in the average fee for a form that currently
requires a fee compared to the average proposed fee per form. The
sum of the current fees, multiplied by the projected FY 2022/2023
fee-paying receipts for each immigration benefit type, divided by
the total fee-paying receipts, is $518. The sum of the proposed
fees, multiplied by the projected FY 2022/2023 receipts for each
immigration benefit type, divided by the fee-paying receipts, is
$725. There is a $207, or approximately 40-percent, difference
between the two averages. These averages exclude fees that do not
receive cost reallocation, such as the separate biometric services
fee and the proposed genealogy fees.
\8\ See Policy Memorandum, Fee Waiver Guidelines as Established
by the Final Rule of the USCIS Fee Schedule; Revisions to
Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26,
available at <a href="https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf">https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf</a>) (last viewed March 23, 2022).
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The proposed fees would ensure that IEFA revenue covers USCIS'
costs associated with adjudicating immigration benefit requests. The
proposed fee schedule accounts for increased costs to adjudicate
immigration benefit requests, detect and deter immigration fraud, and
vet applicants, petitioners, and beneficiaries. See section V.A. of
this preamble for a discussion of IEFA budget history and cost
projections for this rulemaking. DHS also proposes to expand fee
exemptions for certain applicants and petitioners for humanitarian
benefits. Additionally, DHS proposes to establish distinct fees for
different categories of petitions for nonimmigrant workers. DHS
proposes to set a range of fees that vary by the nonimmigrant
classification and to limit petitions for nonimmigrant workers to 25
named beneficiaries. DHS believes the proposed fees more accurately
reflect the differing burdens of adjudication and will enable USCIS to
adjudicate these petitions more effectively.
A. Summary of Economic Impacts
The fee adjustments, as well as changes to the forms and fee
structures used by USCIS, would result in net costs, benefits, and
transfer payments. For the 10-year period of analysis of the rule (FY
2023 through FY 2032), DHS estimates the annualized net costs to the
public would be $532,379,138 discounted at 3- and 7-percent. Estimated
total net costs over 10 years would be $4,541,302,033, discounted at 3-
percent and $3,739,208,286 discounted at 7-percent.
The proposed changes in this rule would also provide several
benefits to DHS and applicants/petitioners seeking immigration
benefits. For the Government, the primary benefits include reduced
administrative burdens and fee processing errors, increased efficiency
in the adjudicative process, and the ability to better assess the cost
of providing services, which allows for better aligned fees in future
regulations. The primary benefits to the applicants/petitioners include
the simplification of the fee payment process for some forms,
elimination of the $30 returned check fee, USCIS' expansion of the
electronic filing system to include more forms, and for many
applicants, limited fee increases and additional fee exemptions to
reduce fee burdens.
Fee increases and other changes in this proposed rule would result
in annualized transfer payments from applicants/petitioners to USCIS of
approximately $1,612,133,742 discounted at both 3-percent and 7-
percent. The total 10-year transfer payments from applicants/
petitioners to USCIS would be $13,751,827,819 at a 3-percent discount
rate and $11,322,952,792 at a 7-percent discount rate.
Fee reductions and exemptions in this proposed rule would result in
annualized transfer payments from USCIS to applicants/petitioners of
approximately $116,372,429 discounted at both 3-percent and 7-percent.
The total 10-year transfer payments from USCIS to applicants/
petitioners would be $992,680,424 at a 3-percent discount rate and
$817,351,244 at a 7-percent discount rate.
The annualized transfer payments from the Department of Defense
(DoD) to USCIS would be approximately $222,145 at both 3- and 7-percent
discount rates. The total 10-year transfer payments from DoD to USCIS
would be $1,894,942 at a 3-percent discount rate and $1,560,254 at a 7-
percent discount rate.
B. Summary of Proposed Provisions
This proposed rule includes the following proposals:
<bullet> Adjusting fees according to the schedule in Tables 1 and
26.
<bullet> Adding new fee exemptions for certain humanitarian
programs and preserving the fee waiver requirements that are currently
being followed.
<bullet> Removing fee exemptions that are based only on the age of
the person submitting the request.
[[Page 406]]
<bullet> Eliminating the $30 returned check fee.
<bullet> Incorporating biometrics costs into the main benefit fee
and removing the separate biometric services fee.
<bullet> Requiring separate filing fees for Form I-485 and
associated Form I-131 and Form I-765 filings.
<bullet> Establishing separate fees for Form I-129, Petition for
Nonimmigrant Worker, by nonimmigrant classification.
<bullet> Revising the premium processing timeframe interpretation
from calendar days to business days.
<bullet> Revising adoption-related requirements, including adding a
Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600,
Supplement 3), and associated fees.
<bullet> Revising regulations related to genealogy searches,
including establishing a fee for Form G-1566, Request for Certificate
of Non-Existence.
<bullet> Miscellaneous technical and procedural changes.
<bullet> Creating lower fees for forms filed online.
C. Summary of Current and Proposed Fees
Table 1 summarizes the current and proposed fees. In addition, the
proposed fees and exemptions are incorporated into the draft version of
USCIS Form G-1055 as part of the docket for this rulemaking. In some
cases, the current or proposed fee may be the sum of several fees. For
example, several immigration benefit requests require an additional
biometric services fee under the current fee structure. The table
includes rows with and without the additional biometric services fee
added to the Current Fee(s) column. The Current Fee(s) column
represents the current fees in effect rather than the enjoined fees
from the 2020 fee rule.\9\ Throughout this proposed rule, the phrase
``current fees'' refers to the fees in effect and not the enjoined
fees. In this proposal, DHS would eliminate the additional biometric
services fee in most cases by including the costs in the underlying
immigration benefit request fee. As such, the Proposed Fees(s) column
does not include an additional biometric services fee. Some other
benefit requests are listed several times because in some cases DHS
proposes distinct fees based on filing methods, online or paper. DHS
proposes to require fees for Forms I-131 and I-765 when filed with Form
I-485. As such, Table 1 includes rows that compare the current fee for
Form I-485 to various combinations of the proposed fees for Forms I-
485, I-131, and I-765. We grouped the fees into different categories,
such as Citizenship and Nationality, Humanitarian, Family-Based,
Employment-Based, and Other. We included immigration benefit requests
without fees in a No Fees category. DHS proposes to codify these no fee
immigration benefit requests. See, e.g., proposed 8 CFR 106.2(a)(58)
through (60).
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\9\ USCIS provides filing fee information on the All Forms page
at <a href="https://www.uscis.gov/forms/all-forms">https://www.uscis.gov/forms/all-forms</a>. You can use the Fee
Calculator to determine the exact filing and biometric services fees
for any form processed at a USCIS Lockbox facility. See USCIS, Fee
Calculator, <a href="https://www.uscis.gov/feecalculator">https://www.uscis.gov/feecalculator</a>. For a complete list
of all USCIS fees, see Form G-1055, Fee Schedule, available from
<a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a>.
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\10\ These are fees that USCIS is currently charging and not
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BILLING CODE 9111-97-C
III. Basis for the Fee Review
A. Legal Authority and Guidance
DHS is issuing this proposed rule consistent with INA sec. 286(m),
8 U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and
naturalization services at a level to ``ensure recovery of the full
costs of providing all such services, including the costs of similar
services provided without charge to asylum applicants or other
immigrants''),\11\ and the CFO Act, 31 U.S.C. 901-03 (requiring each
agency's Chief Financial Officer (CFO) to review, on a biennial basis,
the fees imposed by the agency for services it provides, and to
recommend changes to the agency's fees).
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\11\ The longstanding interpretation of DHS is that the
``including'' clause in section 286(m) does not constrain DHS's fee
authority under the statute. The ``including'' clause offers only a
non-exhaustive list of some of the costs that DHS may consider part
of the full costs of providing adjudication and naturalization
services. See 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23,
2019); 81 FR 26903, 26906 n.10 (May 4, 2016).
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This proposed rule is also consistent with non-statutory guidance
on fees, the budget process, and Federal accounting principles.\12\ DHS
uses OMB Circular A-25 as general policy guidance for determining user
fees for immigration benefit requests, with exceptions as outlined in
section III.B of this preamble. DHS also follows the annual guidance in
OMB Circular A-11 if it requests appropriations to offset a portion of
Immigration Examinations Fee Account (IEFA) costs.\13\
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\12\ See OMB Circular A-25, ``User Charges,'' 58 FR 38142,
available at <a href="https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf">https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf</a> (July 15, 1993) (revising Federal policy guidance
regarding fees assessed by Federal agencies for Government
services). See also Federal Accounting Standards Advisory Board
Handbook, Version 17 (06/18), Statement of Federal Financial
Accounting Standards 4: Managerial Cost Accounting Standards and
Concepts, SFFAS 4, available at <a href="http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf">http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf</a> (generally describing cost accounting concepts
and standards, and defining ``full cost'' to mean the sum of direct
and indirect costs that contribute to the output, including the
costs of supporting services provided by other segments and
entities.); id. at 49-66 (July 31, 1995). See also OMB Circular A-
11, Preparation, Submission, and Execution of the Budget, section
20.7(d), (g) (June 29, 2018), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf">https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf</a> (June 29,
2018). (providing guidance on the FY 2020 budget and instructions on
budget execution, offsetting collections, and user fees).
\13\ OMB Circulars A-25 and A-11 provide nonbinding internal
executive branch direction for the development of fee schedules
under the Independent Offices Appropriations Act, 1952 (IOAA) and
appropriations requests, respectively. See 5 CFR 1310.1. Although
DHS is not required to strictly adhere to these OMB circulars in
setting USCIS fees, DHS understands they reflect best practices and
used the activity-based costing (ABC) methodology supported in
Circulars A-25 and A-11 to develop the proposed fee schedule.
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Finally, this rulemaking accounts for, and is consistent with,
congressional appropriations for specific USCIS programs. FY 2021
appropriations for USCIS provided funding for the E-Verify employment
eligibility verification program. Congress provided E-Verify with
$117.8 million for operations and support. See Consolidated
Appropriations Act, 2021, Pub. L. 116-260, div. F, tit. IV (Dec. 27,
2020). DHS provides this information only for comparison to the IEFA.
E-Verify is not included in this fee review budget because, generally,
appropriations, not fees, fund E-Verify. In addition, Congress
appropriated $10 million for the Citizenship and Integration Grant
Program. Id. Together, the total FY 2021 appropriations for USCIS are
$127.8 million. For the last several years, USCIS has not had the
authority to spend more than $10 million for citizenship grants. Until
recently, grant program funding came from the IEFA fee revenue or a mix
of appropriations and fee revenue.\14\ Because Congress appropriated
funds for grants in FY 2021, the $10 million budgeted for citizenship
grants is not part of the FY 2022/2023 IEFA fee review budget.
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\14\ USCIS received $2.5 million for the immigrant integration
grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113-
76). USCIS did not receive appropriations for the immigrant
integration grants program in FY 2015, FY 2016, FY 2017, and FY
2018. Congress provided $10 million for citizenship and integration
grants in FY 2019 (Pub. L. 116-6) and FY 2020 (Pub. L. 116-93).
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B. Effect of FY 2022 Appropriations
In FY 2022, Congress provided USCIS additional appropriations for
very specific purposes. See Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) (``Pub. L. 117-103''). USCIS
received approximately $389.5 million for E-Verify, application
processing, backlog reduction, and the refugee program. See id at div.
F, title IV. Of that amount, approximately $87.6
[[Page 416]]
million is available until the end of FY 2023. Id. These funds will be
in a separate appropriated account. Id. USCIS will use $275 million to
reduce USCIS application and petition backlogs and delays, support
refugee admissions up to a ceiling of 125,000, and invest in enterprise
infrastructure improvements such as case file management and video
interviewing capabilities.\15\ USCIS will use the remaining amount,
approximately $114.5 million, to fund E-Verify. In addition, Congress
provided $20 million for Federal Assistance for the Immigrant
Citizenship and Integration Grants program. Id. This is $10 million
more than in a typical year.\16\ USCIS also received $193 million for
Operation Allies Welcome (OAW). See Extending Government Funding and
Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 30,
2021) (``Pub. L. 117-43'') at div. C. title V, sec. 2501. In FY 2022,
approximately $119.7 million is available for use in the Immigration
Examinations Fee Account, which is a no-year account. The remaining OAW
amount will be available in FY 2023 or until expended. In all of these
cases, the laws provide that the funds are only to be used for the
specified purposes, and DHS is not required to reduce any current IEFA
fee.\17\
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\15\ This $275 million includes $250 million that USCIS received
in an earlier continuing resolution. See Extending Government
Funding and Delivering Emergency Assistance Act, 2022, Public Law
117-43 (Sept. 30, 2021) at div. A, sec. 132. USCIS received an
additional $25 million in the Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) at div. F, title IV.
\16\ For example, Congress appropriated $10 million in FY 2021.
See section III.A of this preamble for more information.
\17\ Public Law 117-43, at section 132, states, ``That such
amounts shall be in addition to any other funds made available for
such purposes, and shall not be construed to require any reduction
of any fee described in section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)):'' Likewise, Public Law 117-43,
at section 2501, states ``That such amounts shall be in addition to
any other amounts made available for such purposes and shall not be
construed to require any reduction of any fee described in section
286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).''
USCIS has a long history of funding citizenship and integration
grants from IEFA revenue, appropriations, or a mix of both.
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The FY 2022/2023 fee review budget that is the basis for this
proposed rule excludes all appropriated funding, including the
approximately $529.2 million provided so far in FY 2022. USCIS will use
the appropriated funding for the purposes provided by Congress. The
appropriations support several DHS priorities, for example, decreasing
USCIS application processing times, reducing the backlog of requests
already on hand and being adjudicated (and for which a fee may have
already been paid). USCIS may also use the appropriations to expand
refugee processing efforts, and support vulnerable Afghans, including
those who worked alongside Americans in Afghanistan for the past two
decades, as they safely resettle in the United States. These
appropriations do not overlap with the fee review budget, which will
fund immigration adjudication and naturalization services for future
incoming receipts. The full costs of operating USCIS that are included
in the fee model do not include separate line items budgeted directly
for backlog reduction and OAW. Had the appropriation not been received,
DHS and USCIS would have been required to use funds budgeted for other
uses to fund the costs of OAW. While DHS and USCIS are very focused on
reducing backlogs, our efforts to reduce the backlog did not include a
significant shift of IEFA non-premium funds from normal operations to
that effort. USCIS funded previous backlog reduction efforts with IEFA
premium processing revenue and supplemental appropriations.\18\ The
backlog represents uncompleted work which USCIS already received, but
did not complete, and the appropriated funds will assist in clearing
that workload. In the absence of appropriations, USCIS may continue to
fund backlog reduction efforts with premium processing revenue.
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\18\ The last time USCIS received appropriations for the backlog
was in FY 2008. See Consolidated Appropriations Act, 2008, Public
Law 110-161, Title IV (Dec. 26, 2007). USCIS received $20 million
``to address backlogs of security checks associated with pending
applications and petitions.'' More recently, Congress authorized
USCIS to use premium processing revenue to address the backlog. See
Emergency Stopgap USCIS Stabilization Act, Public Law 116-159, Div.
D, Title IV (Oct. 1, 2020).
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DHS received appropriations to fund some of the additional spending
that USCIS will require for the refugee ceiling increase to 125,000
beginning in FY 2022, as described in section V.A.2.b.\19\ This is a
significant increase over recent years. The refugee admission ceiling
was 62,500 for FY 2021 and 18,000 for FY 2020.\20\ DHS is including
this amount in its total costs to be recovered by the fees proposed in
this rule because the appropriations in Public Law 117-103 will be used
to cover the FY 2022 expenses for the refugee program, while this rule
is unlikely to be effective until FY 2023. The approximately $87.6
million appropriated for application processing that is available until
the end of FY 2023 may be insufficient to fund backlog reduction and
refugee processing. For example, the President's budget request for FY
2023 included $765 million for increasing asylum caseloads, backlog
reduction, and refugee processing.\21\ While USCIS is committed to
seeking Congressional appropriations for refugee processing costs in
the future, USCIS cannot presume such appropriations, especially given
the lack of appropriations in the past. If this fee rule does not
account for the possibility of no Congressional funding in future years
and Congress fails to fund the program, either the program cannot
continue or USCIS will be forced to reallocate resources assigned to
another part of the agency for this purpose. However, if USCIS is
certain to receive additional appropriations to fund the FY 2023
refugee program at the time of the final rule, then USCIS may reduce
the estimated budget requirements funded by IEFA fees accordingly in
the final rule.
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\19\ See White House, ``Memorandum for the Secretary of State on
Presidential Determination on Refugee Admissions for Fiscal Year
2022'' (Oct. 8, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/08/memorandum-for-the-secretary-of-state-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2022/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/08/memorandum-for-the-secretary-of-state-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2022/</a>.
\20\ See White House, ``Memorandum for the Secretary of State on
the Emergency Presidential Determination on Refugee Admissions for
Fiscal Year 2021'' (May 3, 2021), <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/05/03/memorandum-for-the-secretary-of-state-on-the-emergency-presidential-determination-on-refugee-admissions-for-fiscal-year-2021-2/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/05/03/memorandum-for-the-secretary-of-state-on-the-emergency-presidential-determination-on-refugee-admissions-for-fiscal-year-2021-2/</a>; see also Trump White
House, ``Presidential Determination on Refugee Admissions for Fiscal
Year 2020'' (Nov. 1, 2019), <a href="https://trumpwhitehouse.archives.gov/presidential-actions/presidential-determination-refugee-admissions-fiscal-year-2020/">https://trumpwhitehouse.archives.gov/presidential-actions/presidential-determination-refugee-admissions-fiscal-year-2020/</a>.
\21\ See White House, Budget of the United States, Fiscal Year
2023, p. 20, <a href="https://www.whitehouse.gov/wp-content/uploads/2022/03/budget_fy2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/03/budget_fy2023.pdf</a> (last visited April 20, 2022).
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The FY 2022 appropriation laws also require additional services and
impose reporting, processing, and monitoring requirements that will add
costs for USCIS. See, e.g., Public Law 117-43 at secs. 2502-2503. The
reporting requirements of Public Law 117-43 are quarterly and extend
through September 30, 2023, although the amounts appropriated are only
available for fiscal year 2022. Id at secs. 2503(a) and 2506. DHS will
fund these reporting costs with the appropriated funds for FY 2022 and
thus has excluded most of them from this rule. Id. at secs. 2502-2503.
Congress also added reporting requirements when it reauthorized and
revised the Employment-Based Immigrant Visa, Fifth Preference (EB-5)
authority. See Public Law 117-103, div. BB and section III.F of this
preamble for more information. IEFA fees will fund
[[Page 417]]
operational expenses as needed in FY 2022/2023, including the reporting
requirements imposed by Public Law 117-43 and Public Law 117-103 that
are not funded by appropriated funds. DHS describes the FY 2022/2023
fee review budget in section V.A. of this preamble.
C. Immigration Examinations Fee Account
USCIS manages three fee accounts:
<bullet> The IEFA (includes premium processing revenues),\22\
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\22\ INA sec. 286(m), (n), and (u); 8 U.S.C. 1356(m), (n), and
(u).
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<bullet> The Fraud Prevention and Detection Account,\23\ and
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\23\ INA secs. 214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12)
and (13), 1356(v).
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<bullet> The H-1B Nonimmigrant Petitioner Account.\24\
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\24\ INA secs. 214(c)(9) and (11), 286(s); 8 U.S.C. 1184(c)(9)
and (11), 1356(s).
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In 1988, Congress established the IEFA in the Treasury of the
United States. See Public Law 100-459, sec. 209, 102 Stat. 2186 (Oct.
1, 1988) (codified as amended at INA sec. 286(m) and (n), 8 U.S.C.
1356(m) and (n)). Fees deposited into the IEFA fund the provision of
immigration adjudication and naturalization services. In subsequent
legislation, Congress directed that the IEFA fund the full costs of
providing all such services, including services provided to immigrants
at no charge. See Public Law 101-515, sec. 210(d)(1) and (2), 104 Stat.
2101, 2121 (Nov. 5, 1990). Consequently, the immigration benefit fees
were increased to recover these additional costs. See 59 FR 30520 (June
14, 1994). The IEFA accounted for approximately 96 percent of total
funding for USCIS in FY 2021 and is the focus of this proposed rule.
IEFA non-premium funding represents 83 percent and IEFA premium funding
represents 13 percent of USCIS FY 2021 total funding. The remaining
USCIS funding comes from appropriations (approximately 3 percent) or
other fee accounts (approximately 1 percent) in FY 2021. The Fraud
Prevention and Detection Account and H-1B Nonimmigrant Petitioner
Account are both funded by fees for which the dollar amount is set by
statute.\25\ DHS has no authority to adjust the fees for these
accounts.
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\25\ See the supporting documentation included in the docket of
this rulemaking. There is additional information on these accounts
in Appendix II--USCIS Funding and Account Structure.
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D. Full Cost Recovery
USCIS receives millions of requests each year for immigration
benefits. These benefits are funded by DHS, generally, by charging fees
for USCIS services. In recent years, however, and as fully explained in
this rule preamble and its supporting documents, USCIS costs have
surpassed the fees it collects.
As stated earlier, DHS publishes this proposed rule under the
Immigration and Nationality Act (``INA''), which establishes the
``Immigration Examinations Fee Account'' (``IEFA'') for the receipt of
fees it charges. INA section 286(m), 8 U.S.C. 1356(m). The INA allows
DHS to set ``fees for providing adjudication and naturalization
services . . . at a level that will ensure recovery of the full costs
of providing all such services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.'' Id.
The INA further provides that ``[s]uch fees may also be set at a level
that will recover any additional costs associated with the
administration of the fees collected.'' Id.
DHS proposes this rule to address the projected deficits and
unsustainable fiscal situation of USCIS that are explained in this
proposal and in the supporting documentation in the docket. See section
IX.A of this preamble; see also IEFA Non-Premium Carryover Projections
in the supporting documentation included in the docket to this
rulemaking. Carryover is unobligated or unexpended fee revenue
accumulated from previous fiscal years. Because USCIS is primarily fee-
funded, it must ensure that it maintains a carryover balance to
continue operating, and INA section 286(m), 8 U.S.C. 1356(m) authorizes
DHS to set fees at a level to recover ``the full costs'' of providing
``all'' ``adjudication and naturalization services,'' and ``the
administration of the fees collected.'' (emphasis added.) This
necessarily includes support costs such as physical overhead,
information technology, management and oversight, human resources,
national security vetting and investigations,\26\ accounting and
budgeting, and legal, for example. USCIS' current budget forecasts a
deficit based on fully funding all of its operations, and DHS must make
up that difference either by cutting costs, curtailing operations, or
increasing revenue. DHS has examined USCIS recent budget history,
service levels, and immigration trends to forecast its costs, revenue,
and operational metrics in order to determine whether USCIS fees would
generate sufficient revenue to fund anticipated operating costs. As
explained in this rule and the supporting documents, USCIS costs are
projected to be considerably higher than projected fee revenue should
fees remain at their current levels. The primary cost driver
responsible for this increase is payroll, including the need to hire
additional staff due to an increase in the volume of applications that
USCIS receives and the increase in time per adjudication for USCIS to
process many applications, petitions, and requests. See section V.B.
for a discussion of USCIS workload and the time to adjudicate
applications, petitions, and requests. See also section IX.C for
planned increases in efficiency. USCIS has already curtailed its own
costs and implemented cost-cutting measures, and any further reductions
would adversely affect the services USCIS provides to applicants
including adjudications time and processes. See section V.A.2. and
section IX.B. of this preamble.
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\26\ Congress recommended that DHS establish an organization
``responsible for developing, implementing, directing, and
overseeing the joint USCIS-Immigration and Customs Enforcement (ICE)
anti-fraud initiative and conducting law enforcement/background
checks on every applicant, beneficiary, and petitioner prior to
granting immigration benefits.'' See, Conference Report to accompany
H.R. 4567 [Report 108-774], ``Making Appropriations for the
Department of Homeland Security for the Fiscal Year Ending September
30, 2005,'' p. 74, available at <a href="https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf">https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf</a>.
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Consistent with these authorities, sources, and needs, this
proposed rule would ensure that USCIS recovers its full operating costs
and maintains an adequate level of service in two ways:
First, where possible, the proposed rule would set fees at levels
sufficient to cover the full cost of the corresponding services
associated with fairly and efficiently adjudicating immigration benefit
requests.
DHS generally follows OMB Circular A-25, which ``establishes
federal policy regarding fees assessed for Government services and for
sale or use of Government goods or resources.'' OMB Circular A-25,
section 1, 58 FR 38144. A primary objective of OMB Circular A-25 is to
ensure that Federal agencies recover the full cost of providing
specific services to users and associated costs. See id., section 5.
Full costs include, but are not limited to, an appropriate share of:
<bullet> Direct and indirect personnel costs, including salaries
and fringe benefits such as medical insurance and retirement;
<bullet> Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel, and
rents or imputed rents on land, buildings, and equipment;
<bullet> Management and supervisory costs; and
[[Page 418]]
<bullet> Costs of enforcement, collection, research, establishment
of standards, and regulation.
Id., section 6, 58 FR 38145. Second, this proposed rule would set
fees at a level sufficient to fund overall requirements and general
operations related to USCIS IEFA programs. The current and proposed
IEFA fees fund programs that are not associated with specific statutory
fees or funded by annual appropriations. The proposed fees would also
recover the difference between the full cost of adjudicating benefit
requests and the revenue generated when such requests are fee exempt,
in whole or in part, when the fees for such requests are set at a level
below full cost by statute or policy, and when fees are waived,
consistent with past fee calculation methodology. As noted, Congress
provided that USCIS may set fees for providing adjudication and
naturalization services at a level that will ensure recovery of the
full costs of providing all such services, including the costs of
similar services provided without charge to asylum applicants or other
immigrants. See INA sec. 286(m), 8 U.S.C. 1356(m).\27\ DHS has long
interpreted this statutory fee-setting authority, including the
authorization to collect ``full costs'' for providing ``adjudication
and naturalization services,'' as granting DHS broad discretion to
include costs other than OMB Circular A-25 generally provides. See OMB
Circular A-25, section 6d(1); INA sec. 286(m), 8 U.S.C. 1356(m). See,
e.g., 66 FR 65811 at 65813 (Dec. 21, 2001) (responding to commenters
opposed to the use of IEFA fees to pay expenses for unrelated services
by stating that those costs must be recovered from the fees charged to
other applicants for immigration and naturalization benefits.). In
short, DHS may charge fees at a level that will ensure recovery of all
direct and indirect costs associated with providing immigration
adjudication and naturalization services.\28\
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\27\ Congress has provided separate, but similar, authority for
establishing USCIS genealogy program fees. See INA sec. 286(t), 8
U.S.C. 1356(t). The statute requires that genealogy program fees be
deposited into the IEFA and that the fees for such research and
information services may be set at a level that will ensure the
recovery of the full costs of providing all such services. Id. The
methodology for calculating the genealogy program fees is discussed
in a separate section later in this preamble.
\28\ Congress has not defined either term with any degree of
specificity for purposes of paragraphs (m) and (n). See, e.g.,
Barahona v. Napolitano, No. 10-1574, 2011 WL 4840716, at **6-8
(S.D.N.Y. Oct. 11, 2011) (``While the term `full costs' appears
self-explanatory, section 286(m) contains both silence and ambiguity
concerning the precise scope that `full costs' entails in this
context.'').
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Consistent with the historical position and practice of DHS, this
proposed rule would set fees at a level that ensures recovery of the
full operating costs of USCIS, the component within DHS that provides
almost all immigration adjudication and naturalization services. See
Homeland Security Act of 2002, Public Law 107-296, sec. 451, 116 Stat.
2142 (Nov. 26, 2002) (6 U.S.C. 271). Congress has historically relied
on the IEFA to support the vast majority of USCIS programs and
operations conducted as part of adjudication and naturalization service
delivery. This conclusion is supported by Congress' limited historical
appropriations to USCIS. The agency typically receives only a small
annual appropriation for specific uses. USCIS must use fee revenues, as
a matter of both discretion and necessity, to fund all operations
associated with activities that USCIS is charged by law to administer
that are not funded by other means.
Certain functions, including the Systematic Alien Verification for
Entitlements (SAVE) program \29\ and the Office of Citizenship,\30\
which USCIS has administered since DHS's inception, are integral parts
of fulfilling USCIS' statutory responsibility to provide immigration
adjudication and naturalization services. They are not associated with
specific fees, but they may be, and are, funded by the IEFA. Similarly,
when a filing fee for an immigration benefit request, such as Temporary
Protected Status (TPS), is capped by statute and does not cover the
cost of adjudicating these benefit requests, DHS may recover the
difference with fees charged to other immigration benefit requests. See
INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) (capping TPS
registration fee at $50); 8 CFR 103.7(b)(1)(i)(NN); proposed 8 CFR
106.2(a)(48)(i). Also, when DHS exempts certain benefit requests from
filing fees, such as applications or petitions from qualifying victims
who assist law enforcement in the investigation or prosecution of human
trafficking (T nonimmigrant status) or certain other crimes (U
nonimmigrant status), USCIS recovers the cost of providing those fee-
exempt or no-fee services through fees charged to other applicants and
petitioners. See, e.g., 8 CFR 103.7(b)(1)(i)(UU) and (VV) (Oct. 1,
2020); proposed 8 CFR 106.2(a)(59) and (60).
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\29\ USCIS funds the SAVE program by user fees and IEFA funds,
as Congress has not provided any direct appropriated funds for the
program since FY 2007. SAVE provides an ``immigration adjudication .
. . service'' under INA sec. 286(m) and (n) to Federal, state, and
local agencies that require immigration adjudication information in
administering their benefits.
\30\ The Homeland Security Act created the Office of Citizenship
at the same time as several other mission-essential USCIS offices,
such as those for legal, budget, and policy. Like those offices, the
Office of Citizenship has always been considered an essential part
of the ``adjudication and naturalization services'' USCIS provides
under section 286(m) and (n) of the INA. As Congress recognized in
creating the Office of Citizenship in section 451(f) of the Homeland
Security Act (6 U.S.C. 271(f)), providing information to potential
applicants for naturalization regarding the process of
naturalization and related activities. is an integral part of
providing ``such services''
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OMB guidance gives agencies discretion to interpret when additional
statutory requirements apply to user fees. See Circular A-25, section
4, 58 FR 38144. In that regard, in INA sec. 286(m), 8 U.S.C. 1356(m),
Congress imposed on DHS an additional obligation--to recover the full
cost of USCIS operations--over and above the advice in OMB Circular A-
25 concerning the direct correlation or connection between costs and
fees. Nevertheless, DHS follows OMB Circular A-25 to the extent
possible while complying with Congress's directive, including directing
that fees should be set to recover the costs of an agency's services in
their entirety and that full costs are determined based upon the best
available records of the agency. See OMB Circular A-25, section 6d(1).
DHS applies the discretion provided in INA sec. 286(m), 8 U.S.C.
1356(m), to: (1) use activity-based costing (ABC) to establish a model
for assigning costs to specific benefit requests in a manner reasonably
consistent with OMB Circular A-25; (2) allocate costs for programs for
which a fee is not charged or a law limits the fee amount, (3)
distribute costs that are not attributed to, or driven by, specific
adjudication and naturalization services; and (4) make additional
adjustments to effectuate specific policy objectives.\31\
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\31\ DHS may reasonably adjust fees based on value judgments and
public policy reasons consistent with its statutory authority and
where a rational basis for the methodology is propounded in the
rulemaking. See FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29 (1983).
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The ABC model distributes indirect costs. Indirect costs are not
specifically identifiable with one output because they may contribute
to several outputs. The ABC model uses a cause-and-effect relationship
to distribute most indirect costs. See the supporting documentation
included in this docket for information on direct and indirect costs.
Costs that are not assigned to specific fee-paying immigration benefit
requests are reallocated to other fee-paying immigration benefit
requests outside the
[[Page 419]]
model in a spreadsheet. The fee schedule spreadsheet adjusts the model
results to effectuate a desired result such as a lower fee to encourage
or not discourage the filing of a specific benefit request. For
example, the model determines the direct and indirect costs for refugee
workload. The costs associated with processing workload without fees or
where fees do not recover full cost must be reallocated outside the ABC
model. USCIS reallocates these costs to fee-paying immigration benefit
requests, either among the same request, among all fee-paying requests
or among certain unrelated fee-paying requests. For example, the costs
of Form I-485 filings that are fee-waived are shifted to the Form I-485
filings that pay the fee. All immigration benefit request fees that
recover their full cost also recover the cost of workloads without
fees, such as refugee workload. In this proposal, USCIS is allocating
more asylum costs to Forms I-129 and I-140 than the forms would receive
without additional intervention. The supporting documentation in the
docket contains an in-depth explanation of the ABC model and DHS has
included documentation for the fee schedule spreadsheet in the docket
for public review. USCIS acknowledges that its ABC model and fee
schedule are complex, but both are necessary to allocate the costs of
an agency with the size and breadth of purpose as USCIS. DHS invites
the public to request a demonstration of how the fee calculations are
affected by the direct and indirect cost allocation, shifting costs
from free immigration benefits to others, and capping certain fees at
decided-upon levels.
Typically, Congressional appropriations and two other small fee
accounts represent between 2-5 percent (combined) of USCIS' annual
budget.\32\ Each has statutory limits for both amounts and uses.
Appropriations are typically limited to use for E-Verify employment
status verification and the Citizenship and Integration grant program.
Congress authorizes or requires USCIS to carry out seemingly non-
adjudicatory functions and approves the DHS budget, knowing that USCIS
must use IEFA funds to cover those expenses which Congress does not
otherwise fund through appropriations and statutory fees. Therefore, by
approving the use of the IEFA every year to fund seemingly non-
adjudicatory functions, Congress acknowledges our construction.
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\32\ This does not include the appropriations received for FY
2022 as discussed in detail earlier in this preamble.
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E. The Use of Premium Processing Funds Under the Emergency Stopgap
USCIS Stabilization Act
On October 1, 2020, the Continuing Appropriations Act, 2021 and
Other Extensions Act (Continuing Appropriations Act) was signed into
law. Public Law 116-159 (Oct. 1, 2020). The Continuing Appropriations
Act included the Emergency Stopgap USCIS Stabilization Act (USCIS
Stabilization Act), which allows USCIS to establish and collect
additional premium processing fees and to use premium processing funds
for expanded purposes. See Public Law 116-159, secs. 4101 and 4102, 134
Stat. 739 (Oct. 1, 2020); 8 U.S.C. 1356(u). That statute is expected to
result in continued increases to USCIS premium processing revenue.
USCIS can now use premium processing revenue, if necessary, to provide
the infrastructure needed to carry out a broader range of activities
than previously authorized. Importantly for the purposes of this
proposed rule, the USCIS Stabilization Act permits USCIS to make
infrastructure improvements in adjudication processes and the provision
of information and services to immigration and naturalization benefit
requestors. 8 U.S.C. 1356(u)(4). The USCIS Stabilization Act also
establishes higher fees for existing premium processing services and
permits USCIS to expand premium processing to certain additional
benefits. 8 U.S.C. 1356(u)(2) and (3). It also exempts the agency from
the requirements of the Administrative Procedure Act (5 U.S.C. 553)
when instituting section 4102(b)(1) of the USCIS Stabilization Act. In
addition, it provides that the required processing timeframe for the
newly designated benefits will not commence until all prerequisites for
adjudication are received, which would include biometrics and
background check results. See section 4102(b)(2) of the USCIS
Stabilization Act.
On March 30, 2022, DHS published a final rule, ``Implementation of
the Emergency Stopgap USCIS Stabilization Act,'' implementing part of
the authority provided under the USCIS Stabilization Act to offer
premium processing for those benefit requests made eligible for premium
processing by section 4102(b) of that law. See 87 FR 18227 (premium
processing rule). The USCIS Stabilization Act requires that when DHS
implements the expansion of immigration benefit types that are
designated for premium processing, it must not result in an increase in
processing times for immigration benefit requests not designated for
premium processing or an increase in regular processing of immigration
benefit requests so designated.\33\ For this reason, DHS did not make
premium processing immediately available for all immigration benefit
requests newly designated in the premium processing rule. Id. Rather,
premium processing will be made available for a newly designated
immigration benefit requests only when DHS determines that it will have
the resources in place to adjudicate the requests within the time
required, and that the availability of premium processing for that
immigration benefit request will not adversely affect other immigration
benefit requests not designated for premium processing or the regular
processing of immigration benefit requests so designated.\34\
Nevertheless, while acknowledging its peripheral impacts as an
overlapping or interrelated rulemaking, DHS has determined that, at
this time, premium processing revenue is not sufficient to appreciably
affect non-premium fees. Thus, this proposed rule does not include
changes directly resulting from the USCIS Stabilization Act or premium
processing rule, except to conform 8 CFR 106.4 to the USCIS
Stabilization Act's requirements. DHS recognizes, however, that it will
have more information about the revenue collected from premium
processing services by the time DHS publishes a final rule. If
appropriate, DHS will consider including premium processing revenue and
costs in the final rule. USCIS' forecasted demand for premium
processing, revenue projections, and spending plans for the premium
processing rule are discussed in greater detail in the premium
processing rule. See 87 FR 18227 (Mar. 30, 2022). While DHS estimates
that the premium processing rule will increase USCIS annual revenues
over the next ten years, as stated previously, because of the resources
required for expanding the availability of premium processing to newly
designated immigration benefit requests, full implementation of
expanded premium processing is estimated to be complete around FY 2025.
This timeline for full implementation will allow current premium
processing revenue to fund other authorized uses and strategic
improvements until adequate revenues exist to cover the costs of
providing expedited processing of the new
[[Page 420]]
requests. USCIS plans to use premium processing revenue to provide
premium processing service, improve our information technology
infrastructure, and reduce backlogs. Accordingly, although the revenue
from premium processing is not considered in this proposed rule as
previously indicated, the costs for USCIS to provide premium processing
service, improve our information technology infrastructure, and reduce
the backlog are also not considered in the proposed fees. Examples of
premium processing costs include:
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\33\ See Public Law 116-159, sec. 4102(c) (Oct. 1, 2020).
\34\ See Public Law 116-159, sec. 4102(c) (Oct. 1, 2020).
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<bullet> Realignment of $25.1 million for IRIS Directorate
information technology (IT) functions and support contracts in FY 2021.
<bullet> Office of Information Technology GE costs of $363.6
million and $497 million for FY 2021 and FY 2022 respectively.
<bullet> $57.5 million in FY 2021 and $58.1 million in FY 2022 for
Service Center Operations general expenses.
Therefore, the projected revenue to be collected from future
premium processing services established by the premium processing rule
is too attenuated to be considered in the current biennial fee study
and the ABC full cost recovery model used for this rule without placing
USCIS at risk of revenue shortfalls if that revenue did not
materialize. DHS has historically excluded premium processing revenue
and costs from its IEFA fee reviews and rulemakings to ensure that
premium processing funds are available for infrastructure investments
largely related to information technology, are available to provide
staff for backlog reduction, and to ensure that non-premium fees were
set at a level sufficient to cover the base operating costs of USCIS.
As noted above, if the revenue collected from premium processing
services becomes more significant and certain before DHS publishes a
final rule, DHS will consider including premium processing revenue and
costs in the final rule. In the next USCIS biennial fee study, DHS will
take into consideration the future effects of the premium processing
rule and the USCIS Stabilization Act allowing for premium processing
revenue to be used for more general uses than what was previously
authorized.
F. EB-5 Reform and Integrity Act of 2022
On March 15, 2022, the President signed the EB-5 Reform and
Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act,
2022, Public Law 117-103. The EB-5 Reform and Integrity Act of 2022
immediately repealed the Regional Center Pilot Program created by the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat. 1828,
sec. 610(b). The law also authorizes a new EB-5 Regional Center
Program, effective May 14, 2022, and is authorized through FY 2026 and
makes various changes to the program. As discussed more fully in
section VIII.O. of this preamble, DHS proposes new fees for the forms
used in the EB-5 program in this rule.
The EB-5 Reform and Integrity Act of 2022 requires DHS to conduct a
fee study not later than 1 year after the date of the enactment of this
Act and, not later than 60 days after the completion of the study, set
fees for EB-5 program related immigration benefit requests at a level
sufficient to recover the costs of providing such services, and
completing the adjudications within certain time frames. See Public Law
117-103, sec. 106(b). Further, the law provides that the fee
adjustments that it requires are notwithstanding the requirements of
INA section 286(m), 8 U.S.C. 1356(m), the authority under which we are
publishing this rule. Id. The law also provides that the fee study
required by 106(a) does not preclude DHS from adjusting its fees in the
interim. Id. sec. 106(f). Therefore, DHS proposes new fees for the EB-5
program forms in this rule using the full cost recovery model described
herein that we have used to calculate those fees since the program's
inception and not the fee study parameters and processing time frames
required by the EB-5 Reform and Integrity Act of 2022. USCIS will
collect fees established under INA section 286(m), 8 U.S.C. 1356(m),
for the EB-5 program, including as may be effected by a final rule for
this proposed rule, until the fees established under section 106(a) of
the EB-5 Reform and Integrity Act of 2022 take effect.
G. Fee Review History
1. Current State of USCIS Fee Schedule Regulations
On August 3, 2020, DHS published the 2020 fee rule, with an
effective date of October 2, 2020, to adjust the USCIS fee schedule and
make changes to certain other immigration benefit request requirements.
On September 29, 2020, the United States District Court for the
Northern District of California granted a motion for a preliminary
injunction of the 2020 fee rule in its entirety and stayed the final
rule's effective date in ILRC. On October 8, 2020, the United States
District Court for the District of Columbia also granted a motion for a
preliminary injunction and stay of the effective date of the final rule
in NWIRP. DHS subsequently issued a notification of preliminary
injunction on January 29, 2021, to inform the public of the two
preliminary injunctions. See 86 FR 7493. The Department continues to
comply with the terms of those orders and is not enforcing the
regulatory changes set out in the 2020 fee rule. In addition to the
changes made in the 2020 fee rule, in 2019 DHS revised USCIS fee waiver
policies and USCIS Form 1-912, including by requiring fee waiver
applicants to use the revised Form I-912, requiring waiver applicants
to submit tax transcripts to demonstrate income, and not accepting
evidence of receipt of a means-tested public benefit as evidence of
inability to pay as described (``the 2019 Fee Waiver Revisions''). See
USCIS Policy Manual Volume 1: General Policies and Procedures, Part B,
Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee
Waivers which were issued on October 25, 2019 and took effect on
December 2, 2019 City of Seattle v. Dep't of Homeland Sec., No. 3:19-
CV-07151-MMC (N.D. Cal. Dec.; see also 84 FR 26137 (June 5, 2019) (30-
day notice announcing changes to USCIS fee waiver polices and USCIS
Form I-912, submission to OMB, and requesting public comment). On
December 11, 2019, the United States District Court for the Northern
District of California preliminarily enjoined the 2019 Fee Waiver
Revisions in11, 2019) (``City of Seattle''). USCIS continues to accept
the fees that were in place before October 2, 2020, and follow the
guidance in place before October 25, 2019, to adjudicate fee waiver
requests.
DHS and the parties in ILRC, NWIRP, City of Seattle, and the
related cases agreed to, and the courts have approved, a stay of those
cases while the agency undertook this fee review and prepared this
notice of proposed rulemaking.
While DHS is enjoined from implementing or enforcing the 2020 fee
rule, the revisions set out in that rule were codified. While 8 CFR
part 106 and the other revisions set out in the 2020 fee rule are found
in the CFR, DHS did not implement them and continues to charge the fees
and follow the fee waiver policies that were, for the most part, in 8
CFR 103.7 as it existed before October 2, 2020. By this rulemaking, DHS
will replace the enjoined regulations and correct the currently
incorrect USCIS fee regulations in the CFR.
Because the 2020 fee rule was codified, this rule proposes to amend
the text of certain changes made by the
[[Page 421]]
2020 fee rule and codified in the CFR. However, because DHS did not
implement the 2020 fee rule, this preamble discusses substantive
changes that refer to the requirements of the regulations that existed
before October 2, 2020. Likewise, the regulatory impact analysis (RIA)
for this proposed rule analyzes the impacts of the changes between the
pre-2020 fee rule regulations that DHS is following under the
injunctions and those proposed in this rule.
This rule proposes relatively minor wording changes to the changes
codified by the 2020 fee rule, and, in most cases, DHS is only
proposing a new fee amount. However, because DHS could not implement
the regulations codified on October 2, 2020, DHS does not believe that
describing only the amendments to those sections is adequate to provide
the affected public with what it needs to adequately review,
understand, and comment on what is being proposed in this rule.
Therefore, DHS has published entire portions of the regulatory text
being proposed in this rule to provide a clear picture of what DHS is
proposing, including sections that are codified in the CFR but were not
implemented by USCIS.
Many of the proposed provisions in this rule are verbatim or close
to verbatim to what is already codified, although enjoined. However,
because those provisions are enjoined, DHS will address them as if they
are newly proposed and cite to, for example, ``proposed 8 CFR 106.2.''
When this preamble discusses the no longer codified but still in effect
provisions of title 8 of the CFR, the standard of citing to the CFR
print edition date \35\ may be inaccurate because title 8 was amended
by a number of rules during calendar year 2020. Therefore, when citing
fee regulations as they existed on October 1, 2020, the regulatory
citation will be followed by that date. For example, the citation for
the Biometric Services fee that was removed by the 2020 fee rule but is
still in effect would be written, ``See 8 CFR 103.7(b)(1)(i)(C) (Oct.
1, 2020).'' \36\ When citing to a provision that was codified by the
2020 fee rule that is not proposed in this rule, the regulatory
citation will be followed by the effective date of the 2020 fee rule.
For example, the citation for the separate fees for different versions
of Form I-129 is cited as ``8 CFR 106.2(a)(3) (Oct. 2, 2020).''
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\35\ The soft bound print edition of the CFR is revised on a
quarterly basis. Titles 1 through 16 are revised as of January 1
each year.
\36\ Readers may find the OFR's eCFR a useful tool to review
historic regulatory text. For more information on viewing historical
versions of the eCFR, see <a href="https://www.ecfr.gov/reader-aids/using-ecfr/ecfr-changes-through-time">https://www.ecfr.gov/reader-aids/using-ecfr/ecfr-changes-through-time</a>.
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As stated previously, this rule would replace the changes about
which the plaintiffs in ILRC, NWIRP, and City of Seattle brought suit.
For clarity and to avoid unnecessary length in this rule, DHS is not
repeating the amendatory instructions and regulatory text for certain
changes that were made by the 2020 fee rule if the provision is
ministerial, procedural, or otherwise non-substantive, such as a
regulation cross reference, form number or form name. Specifically, DHS
proposes to make no changes to the following provisions that were
codified in the 2020 fee rule:
1. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
2. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
3. Remove ``8 CFR 103.7,'' ``8 CFR 103.7(b)'' and ``8 CFR
103.7(b)(1)'' and ``Sec. 103.7 of this chapter'' and replace it
with ``8 CFR 106.2'' in 8 CFR 204.6, 204.310, 204.311, 204.313,
211.1, 211.2, 212.2, 212.3, 212.4, 212.7, 212.15, 212.18, 214.1,
214.3, 214.6, 214.11, 214.16. 216.4, 216.5, 216.6, 223.2, 236.14,
236.15, 245.7, 245.10, 245.15, 245.18, 245.21, 245.23, 245a.12,
245a.13, 245a.20, 245a.33, 248.3, 264.2, 264.5, 264.6, 286.9, 301.1,
319.11, 320.5, 322.3, 322.5, 324.2. 334.2, 341.1, 341.5, 343a.1,
343b.1, 392.4.
4. Replace all references to ``Form I-129'' and any supplements,
and adding in its place either ``the form prescribed by USCIS,''
``application or petition,'' as appropriate in 8 CFR 214.1 and
214.2.
5. Replace ``Sec. 103.7(b)(1) of this chapter'' with ``8 CFR
103.7(d)(4)'' in 8 CFR 217.2.
6. In 8 CFR part 235, replace ``Sec. 103.7(b)(1) of this
chapter'' and Sec. ``103.7(b)(1)'' with ``8 CFR 103.7(d)(3)'' in 8
CFR 235.1, with ``8 CFR 103.7(d)(7)'' in 8 CFR 235.7, ``8 CFR
103.7(d)(13)'' in 8 CFR 235.12, and ``8 CFR 103.7(d)(14)'' in 8 CFR
235.13.
7. Remove the second sentence of Sec. 245.21(b) and remove and
reserve Sec. Sec. 245.15(c)(2)(iv)(B) and (h)(2),
245.23(e)(1)(iii), and 245.24(d)(3) and (i)(1)(iv).
8. Replace ``Missouri Service Center'' with ``National Benefit
Center'' in 8 CFR 245a.18, 245a.19, and 245a.33.
2. Previous Fee Rules
The USCIS IEFA fee schedule that is in effect was published in the
DHS FY 2016/2017 fee rule. See 81 FR 73292 (Oct. 24, 2016).\37\ That
rule and associated fees became effective on December 23, 2016. With
that rule, DHS adjusted the USCIS immigration benefits fee schedule for
the first time in more than six years, increasing fees by a weighted
average of 21 percent. The fee schedule adjustment recovered all
projected costs for FY 2016/2017, including the costs of the Refugee,
Asylum, and International Operations Directorate (RAIO), SAVE, and the
Office of Citizenship. See 81 FR 26911 and 73293.
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\37\ The phrase ``FY 2016/2017 fee rule,'' as used in this
proposed rule, encompasses the fee review, proposed rule, final
rule, and all supporting documentation associated with the
regulations effective as of December 23, 2016.
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The fee schedule had been adjusted previously as well, as follows:
<bullet> Before the creation of DHS, the Department of Justice
(DOJ) Immigration and Naturalization Service (INS) \38\ adjusted fees
incrementally in 1994. See 59 FR 30520 (June 14, 1994).
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\38\ The Homeland Security Act of 2002 abolished the INS and
transferred the INS's immigration administration and enforcement
responsibilities from DOJ to DHS. The INS's immigration and
citizenship services functions were specifically transferred to the
Bureau of Citizenship and Immigration Services, later renamed U.S.
Citizenship and Immigration Services. See Public Law 107-296, sec.
451 (6 U.S.C. 271).
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<bullet> DOJ conducted a comprehensive fee review using ABC and
adjusted most IEFA fees in 1998. See 63 FR 1775 (Jan. 12, 1998)
(proposed rule); 63 FR 43604 (Aug. 14, 1998) (final rule).
<bullet> DOJ implemented fees for Nicaraguan Adjustment and Central
American Relief Act (NACARA) between 1998 and 1999. See 63 FR 64895
(Nov. 24, 1998) (proposed rule); 64 FR 27856 (May 21, 1999) (final
rule). DOJ adjusted fees for small volume workloads in 2000. See 64 FR
26698 (May 17, 1999) (proposed rule); 64 FR 69883 (Dec. 15, 1999)
(final rule). DOJ implemented premium processing in 2001. See 66 FR
29682 (June 1, 2001). DOJ adjusted fees for inflation in 2002. See 66
FR 65811 (Dec. 21, 2001).
<bullet> Following the creation of DHS in 2002, the agency adjusted
fees in 2004 and 2005. See 69 FR 20528 (Apr. 15, 2004); 70 FR 50954
(Aug. 29, 2005) (increasing the fee for Form I-290B from $110 to $385);
70 FR 56182 (Sept. 26, 2005).
<bullet> After those incremental changes, DHS published a
comprehensive FY 2008/2009 fee rule in 2007. See 72 FR 29851 (May 30,
2007).
<bullet> DHS further amended USCIS fees in the FY 2010/2011 fee
rule. See 75 FR 58962 (Sept. 24, 2010). This rule removed the costs of
RAIO, SAVE, and the Office of Citizenship from the fee schedule, in
anticipation of appropriations from Congress that DHS requested. See 75
FR 58961, 58966. These resources did not fully materialize, requiring
USCIS to use other fee revenue to support these programs in the time
between the FY 2010/2011 fee rule and the FY 2016/2017 fee rule. See 81
FR 26910-26912.
The supporting documentation accompanying this proposed rule in the
[[Page 422]]
rulemaking docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> contains a historical
fee schedule that shows the immigration benefit fee history since
October 2005.\39\
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\39\ For IEFA fee history before 2005, see USCIS, ``FY 2016/2017
Immigration Examinations Fee Account Fee Review Supporting
Documentation with Addendum'' (Oct 25, 2016), <a href="https://www.regulations.gov/document/USCIS-2016-0001-0466">https://www.regulations.gov/document/USCIS-2016-0001-0466</a>. Appendix VIII--
IEFA Fee History, page 56, provides fees from FY 1985 to Nov. 2010.
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3. Current Fees
Table 2 summarizes the IEFA and biometric services fee schedule
that took effect on December 23, 2016. DHS is proposing to change the
current fee schedule as a result of the FY 2022/2023 fee review. The
table excludes statutory fees that DHS cannot adjust or can only adjust
for inflation.
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IV. Fee-Setting Approach--Reversal of 2020 Fee Rule
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\40\ Form, when used in connection with a benefit or other
request to be filed with DHS to request an immigration benefit,
means a device for the collection of information in a standard
format that may be submitted in a paper format or an electronic
format as prescribed by USCIS on its official website. The term
``Form'' followed by an immigration form number includes an approved
electronic equivalent of such form as made available by USCIS on its
official website. See 8 CFR 1.2 and 299.1. The word ``form'' is used
in this proposed rule in both the specific and general sense.
\41\ As described in this notice of proposed rulemaking (NPRM),
the United States' obligations under the 1967 Protocol relating to
the Status of Refugees (incorporating Article 28 of the 1951
Convention relating to the Status of Refugees) guide the Application
for Travel Document fees for a Refugee Travel Document. The USCIS
ABC model does not set these fees. See 8 CFR 103.7(b)(1)(i)(M)(1)
and (2) (Oct. 1, 2020); proposed 8 CFR 106.2(a)(7)(i) and (ii).
\42\ Form I-191 was previously titled Application for Advance
Permission to Return to Unrelinquished Domicile. See 8 CFR
103.7(b)(1)(i)(O) (Oct. 1, 2020).
\43\ The Form I-192 fee remained $585 when filed with and
processed by U.S. Customs and Border Protection (CBP). See 8 CFR
103.7(b)(1)(i)(P) (Oct. 1, 2020).
\44\ This reduced fee is applied to ``an applicant under the age
of 14 years when [the application] is: (i) Submitted concurrently
with the Form I-485 of a parent; (ii) The applicant is seeking to
adjust status as a derivative of his or her parent; and (iii) The
child's application is based on a relationship to the same
individual who is the basis for the child's parent's adjustment of
status, or under the same legal authority as the parent.'' 8 CFR
103.7(b)(1)(i)(U)(2) (Oct. 1, 2020).
\45\ Currently there are two USCIS fees for Form I-881: $285 for
individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)(1)
(Oct. 1, 2020). DOJ's Executive Office for Immigration Review (EOIR)
has a separate $165 fee, which applies when one or more applicants
file with the immigration court.
\46\ USCIS excluded Form I-905, Application to Issue
Certification for Health Care Workers, from the FY 2022/2023 fee
review. As such, it will not appear in any tables in this NPRM that
display results of the FY 2022/2023 fee review. USCIS does not have
a FY 2022/2023 forecast for Form I-905 because it has a five-year
renewal cycle and only four applicants file it. USCIS adjudicates it
manually, meaning it does not track the filings in any case
management system. Future fee reviews may evaluate this fee if more
information is available.
\47\ USCIS excluded Form I-941, Application for Entrepreneur
Parole, from the FY 2022/2023 fee review. As such, it will not
appear in tables for workload, in tables for fee-paying volume, or
elsewhere in this NPRM. DHS published a separate NPRM that proposed
to terminate the program. See 83 FR 24415 (May 29, 2018). However,
DHS withdrew that NPRM. See 86 FR 25809 (May 11, 2021). As of Sep.
30, 2021, there are 24 FY 2021 receipts and only 54 receipts since
the beginning of the program. DHS does not believe it has sufficient
information to review this fee at this time. DHS does not propose
any changes to this fee but may evaluate the fee in future fee
reviews when more information is available.
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In the 2020 fee rule NPRM, DHS explained that it was shifting its
fees away from an ability-to-pay model to a beneficiary-pays model. See
84 FR 62298 (Nov. 14, 2019); see also 85 FR 46795 (Aug. 3, 2020) (final
rule stating that DHS had proposed shifting to a beneficiary-pays
model). As described by the U.S. Government Accountability Office
(GAO), under the beneficiary-pays principle, the beneficiaries of a
service pay for the cost of providing that service.\48\ Under the
ability-to-pay principle, those who are more capable of bearing the
burden of fees pay more for the service than those with less ability to
pay. Id. Before the 2020 fee rule, DHS engaged in a balance of these
two fee-setting principles when setting USCIS fees. Generally, DHS has
given more weight to the ability-to-pay than the beneficiary-pays
principle when setting USCIS fees, and has made affordability a central
consideration.\49\ At the same time, DHS has not wholly rejected the
beneficiary-pays principle, including when the agency made clear that
it would not authorize fee waivers
[[Page 425]]
where such a waiver is inconsistent with the benefit requested, which
may require establishing financial stability. See 75 FR 58974 (Sept.
24, 2010). In addition, in past fee rules, DHS has declined to expand
USCIS fee waivers to benefits for which the eligibility requires
financial stability because that would contradict the rationale for
shifting costs related to those applications to others through fee
waivers. See 72 FR 29863 (May 30, 2007). DHS has also previously
declined suggestions that it reduce the burden on low-income requestors
by setting USCIS fees based on income using a tiered fee system,
because the benefits from such a scenario would not justify the
administrative costs added by requiring officers to adjudicate the
documentation of the applicant's income and eligibility for the
requested fee level before processing the request. Id. In the 2020 fee
rule, DHS was concerned that the level of USCIS annual forgone revenue
from fee waivers and exemptions had increased markedly from $191
million in the FY 2010/2011 fee review to $613 million in the FY 2016/
2017 fee review. See 85 FR 46807 (Aug. 3, 2020) (citing 81 FR 26922 and
73307). DHS estimated in the 2020 fee rule supporting documentation
that, without changes to fee waiver policy, it would forgo revenue of
almost $1.5 billion and believed that the fees necessary to recoup that
foregone revenue \50\ were too high to support the continuation of the
existing fee waiver policy.\51\ DHS notes, however, that in the 2020
fee rule, the agency did not abandon the ability-to-pay principle
altogether, and still provided for fee exemptions and statutorily
mandated fee waivers in certain circumstances.
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\48\ See GAO, ``Federal User Fees: A Design Guide'' (May 29,
2008), <a href="https://www.gao.gov/products/GAO-08-386SP">https://www.gao.gov/products/GAO-08-386SP</a>, at 7-12.
\49\ See 81 FR 26934 (May 4, 2016) (stating, ``The lower fee
would help ensure that those who have worked hard to become eligible
for naturalization are not limited by their economic means.'').
\50\ In this context, ``foregone revenue'' refers to the dollar
value associated with an approved fee waiver or fee-exempt forms and
benefits.
\51\ See, e.g., 85 FR 46799 (Aug. 3, 2020) (stating that the fee
for Form N-400 would represent the estimated full cost to USCIS and
be determined in the same manner as most other USCIS fees).
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In this new fee rule, DHS proposes to return the focus of its fee-
setting away from emphasizing the beneficiary-pays principle towards
the historical balance between the beneficiary-pays and ability-to-pay
principles. DHS proposes this for several reasons.
First, DHS has been directed by the President to reduce barriers
and promote accessibility to the immigration benefits that it
administers. See Executive Order 14012, 86 FR 8277 (Feb. 2, 2021) (E.O.
14012). As the President noted in section 1 of the Executive order, new
Americans and their children fuel our economy; contribute to our arts,
culture, and government; and have helped the United States lead the
world in science, technology, and innovation. DHS agrees with the
President's goals of E.O. 14012, and that our laws and policies must
encourage full participation by immigrants, including refugees, in our
civic life, and that immigration benefits must be delivered effectively
and efficiently. More specifically, sections 3(a)(i) and 5(a)(iii) of
E.O. 14012, respectively, instruct the Secretary of Homeland Security
to identify barriers that impede access to immigration benefits and
make the naturalization process more accessible to all eligible
individuals, including through a potential reduction of the
naturalization fee and restoration of the fee waiver process. Id. USCIS
has already taken crucial steps towards ensuring fair access and
removing unnecessary barriers and bureaucracy. See, e.g., Preserving
Continuous Residence and Physical Presence for Purposes of
Naturalization while Engaged in Religious Duties Outside the United
States (May 25, 2021); \52\ Naturalization Eligibility and Voter
Registration Through a State's Benefit Application Process (May 27,
2021); \53\ Veterans Residing Outside the United States and
Naturalization (May 28, 2021); \54\ Assisted Reproductive Technology
and In-Wedlock Determinations for Immigration and Citizenship Purposes
(August 5, 2021); \55\ Clarifying Guidance on Military Service Members
and Naturalization (November 12, 2021); \56\ Demonstrating Eligibility
for Modification under Section 337 (November 19, 2021).\57\
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\52\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Preserving Residence, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210525-PreservingResidence.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210525-PreservingResidence.pdf</a> (last updated May 25, 2021).
\53\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Naturalization Eligibility and Voter Registration Through
a State's Benefit Application Process, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210527-VoterRegistration.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210527-VoterRegistration.pdf</a> (last updated May 27, 2021).
\54\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Veterans Residing Outside the United States and
Naturalization, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210528-MilitaryVeterans.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210528-MilitaryVeterans.pdf</a> (last updated
May 28, 2021).
\55\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Assisted Reproductive Technology and In-Wedlock
Determinations for Immigration and Citizenship Purposes, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210805-AssistedReproductiveTechnology.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210805-AssistedReproductiveTechnology.pdf</a> (last updated Aug 5,
2021).
\56\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, Clarifying Guidance on Military Service Members and
Naturalization, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-MilitaryNaturalization.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-MilitaryNaturalization.pdf</a> (last
updated Nov 12, 2021).
\57\ This guidance allows children born to married legal
parents, one of whom has a genetic or gestational link to the child,
to acquire citizenship because these children are now considered
born in wedlock. Immigration and Nationality Act. U.S. Citizenship
and Immigr. Servs., U.S. Dep't of Homeland Security, Demonstrating
Eligibility for Modification under Section 337 of the Immigration
and Nationality Act, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211119-ModificationUnderINA337.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211119-ModificationUnderINA337.pdf</a>
(last updated Nov 19, 2021).
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As part of implementing Executive Order 14012, USCIS published a
Request for Public Input \58\ (RPI) on reducing barriers and burdens
across USCIS benefits and services as part of implementing Executive
Order 14012. It received nearly 7,400 public comments as a result.
USCIS analyzed these comments and incorporates actionable suggestions
into this proposed rule including expanding fee exemptions, clarifying
the financial hardship criteria for fee waivers, and maintaining the
reduced fee for naturalization.
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\58\ See 86 FR 20398 (Apr. 19, 2021).
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Second, DHS has read and considered the many comments that we
received on the 2020 fee rule that stated that the increased fees and
restrictions on fee waivers in that rule would result in many fewer
residents accessing a desired immigration status for which they are
eligible, simply because they cannot afford to apply. Others wrote that
the proposed naturalization fee increase would make naturalization
unaffordable. Thus, many public comments on the 2020 fee rule indicated
a preference for DHS placing greater emphasis on the ability-to-pay
principle in setting its fees. As a result of these comments, and to
encourage full economic and civic participation by immigrants, DHS has
also analyzed the effects of this rule in light of its impacts on low-
income populations and organizations that assist them in section IX.A,
Impact of Fees.
As stated earlier, DHS is operating under two injunctions that
preclude it from implementing or following the changes made by the 2020
fee rule, as well as an injunction that precludes it from implementing
the 2019 Fee Waiver Revisions. Thus, DHS must consider the concerns
expressed and the courts' findings in those cases. For example, in
ILRC, the order granting the injunction found that DHS failed to
analyze the effect of that rule's fees on the demand for immigration
benefit requests. The order also found that the rule's deviations from
the beneficiary-pays principle conflict with the comments presented on
the effects of these changes on low-income and vulnerable
[[Page 426]]
immigrant populations. See ILRC at 27. Similarly, the court in NWIRP
agreed with the plaintiffs that the fees and fee waiver regulations in
the 2020 fee rule could cause harm to low-income immigrants. See NWIRP
at 72.
DHS proposes to set USCIS fees at the level required to recover the
full cost of providing immigration adjudication and naturalization
services, as permitted or required by law, while providing certain fee
exemptions and waivers for low-income immigrants. As USCIS estimates
that the current fee structure will not generate sufficient revenue to
cover the projected costs of providing immigration adjudication and
naturalization services under the ABC methodology, the fees for many
immigration benefit requests will by necessity increase. Nevertheless,
where DHS has determined that this rule's approach would inequitably
impact the ability of those who may be less able to afford the proposed
fees to seek an immigration benefit for which they may be eligible, DHS
proposes either to maintain the pre-2020 fee rule regulations, fee
waivers, and reduced fees that USCIS is following, or to add new fee
exemptions to address accessibility and affordability. For example, as
detailed more fully later in this preamble, DHS proposes to maintain
the fee waiver regulations and eligibility guidance that took effect in
2010. Consistent with previous fee rules, DHS also proposes to limit
the fees for certain benefit requests in recognition that fees set at
the ABC model output for these forms would be overly burdensome. For
example, as detailed later in this preamble, both considering the
affordability of naturalization, and to promote naturalization for the
benefits it provides to the country, DHS proposes to set the fee for
Form N-400 at a level below what is required to recover the estimated
full cost of providing naturalization services. In addition, DHS
proposes to expand fee exemptions for certain vulnerable populations,
as described later in this preamble.\59\
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\59\ See section VII, Fee Exemptions.
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DHS acknowledges that the ability-to-pay principle necessarily
requires the shifting of costs. If some customers are exempt from
paying fees or have their fees waived, total fee collections cannot
cover the total program costs unless other users pay higher fees to
cover the costs associated with processing the benefit requests of non-
paying users. USCIS follows the principles in OMB Circular A-25 and
uses an ABC model to align its fees closely with the estimated cost for
the relevant service. When DHS deviates from the ABC model to limit,
waive, or exempt certain customers from fees because they are overly
burdensome, or to advance a public policy priority, this results in the
fees for particular services being set at a level that is higher than
the estimated cost of providing those services to fee-paying users.
That means that DHS examined each fee in this proposed rule, and the
fees proposed represent the Department's best effort to balance of
access, affordability, equity, and benefits to the national interest
while providing USCIS with the funding necessary to maintain adequate
services.
V. FY 2022/2023 Immigration Examinations Fee Account Review
A. USCIS Projected Costs and Revenue
The primary objective of the fee review is to determine whether
current immigration and naturalization benefit fees will generate
sufficient revenue to fund anticipated operating costs associated with
administering USCIS' role in the Nation's legal immigration system.
USCIS examines its recent budget history, service levels, and
immigration and naturalization trends to forecast costs, revenue, and
operational metrics. These data help USCIS identify the difference
between anticipated costs and revenue as well as calculate proposed
fees. DHS provides a brief summary of how the USCIS budget has evolved
from the projections included in the FY 2016/2017 fee rule for context
before discussing the elements of the FY 2022/2023 fee review. The FY
2022/2023 fee review encompasses three core elements:
<bullet> Cost projections;
<bullet> Revenue projections; and
<bullet> Cost and revenue differential (the difference between cost
and revenue projections).
1. USCIS Budget History
USCIS' costs have grown beyond the levels projected in the FY 2016/
2017 fee rule, which went into effect on December 23, 2016. This cost
growth reflects increased USCIS workloads and staffing requirements
during that time. The FY 2016/2017 fee rule estimated that an average
annual IEFA non-premium cost projection of $3,037.8 million was
required to meet USCIS' operational requirements.
Spending grew by $1 billion or 28 percent between FY 2016 and FY
2019, while revenue only grew by $406 million or 12 percent during the
same period. Spending was driven by $943 million of one-time and
recurring enhancements provided over the same time period due to a
leadership directive to reduce carryover to around $800 million. The
majority of this increased spending was attributed to an additional
3,800 positions that were added between FY 2017 and FY 2019.\60\ No
enhancements were added in FY 2020 due to budget reductions. Increased
spending in enhancements in FY 2019 were approved based on the
assumption that the FY 2019/2020 fee rule would be implemented in the
summer of FY 2019, however subsequent to those decisions the FY 2019/
2020 fee rule was delayed until the end of FY 2020.
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\60\ See the supporting documentation in the docket for this
rule for more information. Appendix Table 9 on page 49 shows on-
board staffing by office and fiscal year. Please note that on-board
staffing is a subset of authorized staffing.
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Despite the spending increases between FY 2016 and FY 2019, USCIS
did not always spend as much as the plan called for, and carryover
remained in a relatively strong position (about $1.2 billion) at the
end of both FY 2017 and FY 2018. By the end of FY 2019, however,
carryover had decreased to about $850 million. In first half of FY
2020, before the onset of the COVID-19 pandemic, the agency had
substantially increased its first and second quarter spending, due to
the timing of contracts and on-board levels; this drew carryover down
to about $600 million at the end of February, with less than $200
million in non-premium carryover, which funded 80 percent of USCIS
operations. Although USCIS had surplus premium funding of about $400
million, those funds were fenced due to statutory restrictions and
could not be used to offset the deficit.
In the Spring of 2020, in the wake of the COVID-19 pandemic, USCIS
revenue dropped by 40 percent in April and an additional 25 percent in
May from the forecasted collections. That created a possibility that
USCIS might violate statutory anti-deficiency requirements and led to
dramatic cuts in spending through the last half of FY 2020, a hiring
freeze, and planned furloughs if revenue did not increase.
Towards the end of June and July of 2020, revenue began to return
to normal levels, and in conjunction with major budget cuts, allowed
USCIS to avoid the furloughs. In FY 2021, USCIS instituted 32 percent
cuts to non-payroll expenses, continued the hiring freeze through April
2021, and did not fund enhancements. While USCIS carryover has
stabilized and is projected to be over $600 million from non-premium
fees at the end of FY 2022, USCIS is still living with effects of those
32 percent budget cuts. USCIS has a minimum carryover
[[Page 427]]
threshold of $1,063.8 million in the non-premium IEFA.\61\
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\61\ See the IEFA Non-Premium Carryover Projections section of
the supporting documentation for how and why USCIS requires a
minimum carryover balance.
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The FY 2021 non-premium IEFA cost projections, which USCIS uses as
the base for its FY 2022/2023 fee review cost projections, totals
$3,776.3 million.\62\ As discussed later in greater detail, the FY
2022/2023 fee review projects costs of $5,150.7 million for USCIS to
fulfill its IEFA non-premium operational needs on an average annual
basis.
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\62\ The USCIS FY 2021 Annual Operating Plan amount of $3,776
million was reported in the FY 2022 Congressional Budget
Justification and USCIS used this amount for cost projections to
develop the proposed new fee structure. In March 2021, the USCIS FY
2023 Congressional Budget Justification reported a different total
FY 2021 Annual Operating Plan of $3,524 million. This fee review
uses the earlier FY 2021 operating plan amount, which was a
reasonable assumption at the time.
[GRAPHIC] [TIFF OMITTED] TP04JA23.013
The combined average non-payroll or general expenses (GE) \63\
budget for the FY 2016/2017 fee review of $1,406.5 million increased by
only 4.3 percent to $1,467.0 million in the FY 2021 Operating Plan
(OP), which is a detailed spend plan for the agency that is finalized
in the summer before the start of the fiscal year. Typically, the
operating plan is executed closely to the original plan and is
indicative of the resources needed for each of the Directorates and
Program Offices to execute throughout the year. Excluding increased
contingency funding, the GE budget actually decreased from $1,406.5
million in the FY 2016/2017 fee review to $1,258.0 million in the FY
2021 OP, a decrease of $148.5 million or 10.6 percent. As evidenced by
the financial strains placed on USCIS by the COVID-19 pandemic,
however, USCIS must maintain additional contingency funding to deal
with emergent operational needs and provide funding in the event of
unforeseen financial shortfalls and seasonal fluctuations in filing
volumes and revenues.\64\ Additionally, GAO acknowledges that fee
funded agencies may need to designate funds as operating reserves to
weather periods when revenue collections are lower than costs.\65\
Therefore, USCIS decided to increase its contingency cost projection in
the FY 2021 OP and maintain the same level in the fee review cost
budget in case of continued negative effects from the pandemic. USCIS
may use contingency funding to cover emergent costs from policy
decisions, renegotiation of contracts, or new leases that were not
included initially in the OP or in the projected biennial period's cost
budget.
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\63\ General expenses (GE) refers to non-pay expenses, such as
office equipment, technology, training, and travel.
\64\ See USCIS, ``Deputy Director for Policy Statement on USCIS'
Fiscal Outlook'' (June 25, 2020), <a href="https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook">https://www.uscis.gov/news/news-releases/deputy-director-for-policy-statement-on-uscis-fiscal-outlook</a>. See also USCIS, ``USCIS Averts Furlough of Nearly 70% of
Workforce (Aug. 25, 2020), <a href="https://www.uscis.gov/news/news-releases/uscis-averts-furlough-of-nearly-70-of-workforce">https://www.uscis.gov/news/news-releases/uscis-averts-furlough-of-nearly-70-of-workforce</a>.
\65\ See U.S. Government Accountability Office, Federal User
Fees: Fee Design Options and Implications for Managing Revenue
Instability (Sept. 30, 2013), <a href="https://www.gao.gov/assets/gao-13-820.pdf">https://www.gao.gov/assets/gao-13-820.pdf</a>.
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The limited growth in USCIS' GE budget is the result of actions
taken by USCIS to constrain cost growth. In response to reduction in
applicant volume and associated revenues during the COVID-19 pandemic,
USCIS implemented significant GE cost-saving measures in FY 2020 and FY
2021. These cuts enabled USCIS to redirect resources to fund payroll
and ensure that USCIS did not have to furlough any employees. These
cuts included GE reductions of up to 32 percent across all USCIS
offices, including a pause on new GE expenditure, reduced travel,
implementing shorter periods of performance for contracts, and a freeze
on implementing new contracts. Notable examples of GE budget decreases
from FY 2016/2017 to FY 2021 include:
<bullet> $103.7 million (32 percent) decrease in IT equipment,
software, and related contractor support;
<bullet> $36.8 million (52.2 percent) decrease in the USCIS Office
of Citizenship and Applicant Information Services' (CAIS) GE budget,
which included a reduction to the call center support contract and
removal of Office of Citizenship grants that were included in the FY
2016/2017 fee rule budget;
<bullet> $27.3 million (59.9 percent) decrease in travel and
training across all USCIS offices; and
<bullet> $52.4 million (83 percent) decrease in Service Center
Operations (SCOPS) contractor support.
While USCIS will need to reverse some of the GE spending cuts it
has made to ensure the continuation of its operations, USCIS projects
that some of these cuts will be permanent, in an effort to limit cost
growth and the increase in fees. Further details of restored GE budget
cuts in the FY 2022/2023 fee review cost projections are found in
section V.A.2.a of this preamble.
In contrast to the limited growth in non-payroll expenses relative
to the FY 2016/2017 fee review budget, USCIS' payroll costs have
increased substantially due to an increase in staffing. The combined
average IEFA non-premium payroll budget for the FY 2016/2017 fee review
of $1,631.3 million increased by 41.6 percent to $2,309.3 million in
the FY 2021 OP. USCIS experienced a significant increase in application
volume during the FY 2016/2017 to FY 2021 period and adjusted its
staffing requirements accordingly. The FY 2016/2017 fee review
accounted for 14,543 fully funded positions, while as of pay period 6
of FY 2021 (March 27, 2021) USCIS had 18,840 positions authorized to be
funded with IEFA non-premium funds (an increase of 29.5 percent). This
greater number of positions reflects increased operational demands on
USCIS, including growth in workload volumes, growth in the time
required
[[Page 428]]
per case which is in part driven by a combination of changing
adjudication policy and length of the forms, and expanded
responsibilities for other offices, such as Fraud Detection and
National Security (FDNS), including social media vetting.\66\ Payroll
budget increases from FY 2016/2017 to FY 2021 include:
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\66\ In 2004, USCIS established the Fraud Detection and National
Security Directorate (FDNS) in response to a Congressional
recommendation to establish an organization ``responsible for
developing, implementing, directing, and overseeing the joint USCIS-
Immigration and Customs Enforcement (ICE) anti-fraud initiative and
conducting law enforcement/background checks on every applicant,
beneficiary, and petitioner prior to granting immigration
benefits.'' See, Conference Report to accompany H.R. 4567 [Report
108-774], ``Making Appropriations for the Department of Homeland
Security for the Fiscal Year Ending September 30, 2005,'' p. 74,
available at <a href="https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf">https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf</a>. The Fraud Prevention and Detection Account and the
H-1B Nonimmigrant Petitioner Account are funded by statutorily set
fees, and divided among USCIS (for fraud detection and prevention),
the National Science Foundation, and the U.S. Department of Labor.
See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out of both the IEFA and
the fraud detection and prevention account because the fees fixed by
the statute are insufficient to cover the full costs of FDNS. The
Fraud fee account revenue collections are divided in three thirds,
one for the Department of State, one for the Department of Labor,
and one for USCIS. <a href="https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf">https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf</a>. The Fraud Prevention and Detection Account
and the H-1B Nonimmigrant Petitioner Account are funded by
statutorily set fees, and divided among USCIS (for fraud detection
and prevention), the National Science Foundation, and the U.S.
Department of Labor. See 8 U.S.C. 1356(v)(2)(B). FDNS is funded out
of both the IEFA and the fraud detection and prevention account
because the fees fixed by the statute are insufficient to cover the
full costs of FDNS. The Fraud fee account revenue collections are
divided in three thirds, one for the Department of State, one for
the Department of Labor, and one for USCIS.
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<bullet> New positions across all USCIS offices: $324.2 million
(19.9 percent). Due to the operational impact of the COVID-19 pandemic
and potential furlough of USCIS employees, FY 2020 and FY 2021 did not
have any new authorized positions;
<bullet> Pay raises: $167.7 million (10.0 percent). Pay raises were
1.3 percent in FY 2016 and 1.0 percent in FY 2021.\67\ The highest
annual pay raise of 3.1 percent occurred in FY 2020; and
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\67\ For a history of Federal salary data, see Office of
Personnel Management (OPM), Policy, Data, Oversight: Pay and Leave
available at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/</a>. OPM sets Federal salary levels, not DHS.
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<bullet> Significant payroll increases due to an increase in
staffing levels in these USCIS offices and directorates:
[cir] Asylum Division: $49.7 million (40.2 percent);
[cir] Field Office Directorate: $150.5 million (24.7 percent);
[cir] FDNS: $91.4 million (73.6 percent); and
[cir] SCOPS: $184.6 million (68.7 percent).
2. FY 2022/2023 Cost Projections
In developing projected program needs for FY 2022/2023, USCIS used
the FY 2021 operating plan (OP) as the starting point. Actual and
anticipated changes from the FY 2021 OP are discussed in this section.
Enacted funds from FY 2022 are not included in the projections. In
addition, there are standard pay adjustments and increases to programs
to maintain current services that are fairly standard in budget
development. Examples of necessary adjustments include:
<bullet> Pay inflation and within-grade pay step increases ($2.67
billion in FY 2022 and an additional $2.76 billion in FY 2023). The
assumed Government-wide pay inflation rate for FY 2022 and FY 2023 is
2.7 percent and 1.6 percent respectively.
<bullet> Staffing requirements ($315.7 million in FY 2022 and an
additional $34.8 million in FY 2023). USCIS models staffing allocations
and costs based on projected workload volumes. See section V.B. of this
preamble for information on how workload and completion rates affect
staffing. Staffing allocation model cost estimates are also influenced
by position type, grade level and locality.
Overall, the IEFA cost baseline increases by 35.3 percent in FY
2022 and 37.4 percent in FY 2023 both relative to the FY 2021 OP. A
detailed summary of adjustments to the FY 2021 OP that resulted in the
projected budget requirements for FY 2022 and FY 2023 follows.
Despite the growth in USCIS' IEFA non-premium budget from the
levels projected in the FY 2016/2017 fee review to the levels in the FY
2021 OP, USCIS remains underfunded to accomplish its operational
objectives, and processing backlogs continue to grow. See section III.A
of this preamble for information on supplemental appropriations for the
backlog.\68\ USCIS projects that its IEFA non-premium cost projections
must increase by 36.4 percent from $3,776.3 million in FY 2021 to an
average of $5,150.7 million in FY 2022/2023 to fulfill USCIS'
operational requirements. This increase in funding will ensure that
USCIS is able to meet its operational needs during the biennial period.
The following subsections provide more details on the required
increases for the FY 2022/2023 cost projections.
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\68\ The appropriated funds will be focused mainly on reducing
current backlogs and not on processing future requests. If USCIS
does not increase revenue to meet the costs of timely adjudicating
all incoming receipts as proposed in this rule, USCIS will not be
able to keep up with demand and backlogs are likely to rematerialize
despite the funds provided for clearing those requests on hand.
[GRAPHIC] [TIFF OMITTED] TP04JA23.014
a. General Expenses
In the USCIS cost projections, GE represent all costs that are not
related to pay or benefits of employees. USCIS estimates that its GE
budget must increase by $335.8 million (22.9 percent) from $1,467.0
million in FY 2021 to a combined average of $1,802.9 million in the FY
2022/2023 fee review cost projections. Excluding contingency funding,
USCIS projects the GE budget must increase from $1,258.0 million in
[[Page 429]]
FY 2021 to $1,592.7 million in FY 2022/2023, or 26.6 percent. This
increase in GE is primarily the result of the planned reversal of
reductions made in FY 2020 and FY 2021 due to the COVID-19 pandemic.
These reductions were necessary at the time to preserve the financial
stability of USCIS, but some of them must be reversed to ensure that
USCIS can adequately perform the adjudication and naturalization
services that it is statutorily charged to administer. Notable examples
of increases in the GE budget from FY 2021 to the FY 2022/2023 fee
review average are projected to occur for these directorates and
programs:
<bullet> SCOPS contractor support is projected to increase $41
million (386.4 percent) above the FY 2021 level. The funding for SCOPS
contractor support would revert close to the level projected in the FY
2016/2017 fee rule because the FY 2021 level had been reduced due to
funding constraints associated with the COVID-19 pandemic.
<bullet> GE is projected to increase by $35 million to support
increased refugee processing associated with a proposed increase to the
refugee ceiling.
<bullet> Immigration Records and Identity Services (IRIS) is
projected to have additional FY 2022/2023 Federal Bureau of
Investigation (FBI) fingerprint and background check service costs of
$16.7 million based on FBI fees and workload estimates.
<bullet> In addition to the restoration of $13 million for
Application Support Center (ASC) contract support, costs increase as
USCIS restores ASC capacity following the COVID-19 pandemic. USCIS
temporarily suspended in-person services between March 18, 2020 until
June 4, 2020.\69\ ASC appointments that were cancelled due to the
temporary office closure were rescheduled causing some individuals to
experience significant processing delays. To reduce costs, the annual
contract was deferred to nine months. The remaining three months were
added to the 12-month optional period to resume in FY 2022.
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\69\ USCIS temporarily suspended in-person office services to
help slow the spread of COVID-19 and ensure the safety of our staff
and communities. These temporary closures and capacity limitations
led to a substantial backlog of cases awaiting biometrics
appointments. USCIS has since extended operating hours at high-
volume ASCs and adjusted biometrics submission requirements for
certain applicants to address the backlogs. See USCIS, USCIS
Temporarily Closing Offices to the Public March 18-April 1, <a href="https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-to-the-public-march-18-april-1">https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-to-the-public-march-18-april-1</a> (last updated Mar. 17, 2020); see also
USCIS, USCIS Preparing to Resume Public Services on June 4, <a href="https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4">https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4</a> (last updated Sept. 16, 2001). At the date of
publication of this proposed rule, ASC backlogs have mostly been
eliminated.
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<bullet> The Office of the Chief Information Officer's GE budget is
projected to increase by $35.3 million (16 percent) to support the
USCIS staffing requirements in the FY 2022/2023 fee review. The
additional funding is required to provide IT support, equipment, and
network services. This excludes projects funded from premium
processing. As stated earlier, non-premium IEFA cost projections are
the basis for the fee review budget.
<bullet> The budget includes an increase of $9.8 million at the
National Records Center (NRC) to reduce the Freedom of Information Act
(FOIA) backlog at the NRC in FY 2022/2023. DHS has requested
appropriations to fund this additional spending. If USCIS receives
appropriations, USCIS may be able to revise downward the cost
projections funded by IEFA fees.
b. Payroll
USCIS projects that it must increase its IEFA non-premium pay
budget by $1,038.6 million (45 percent) from $2,309.3 million in FY
2021 to $3,347.9 million in the FY 2022/2023 fee review period to meet
its operational requirements. The payroll growth includes:
<bullet> Pay and benefit adjustments for onboard staff: $313.1
million. USCIS budget projections include increased costs associated
with the Government-wide cost of living adjustment (COLA) assumption of
2.7 percent for FY 2022 and 1.6 percent for FY 2023.\70\
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\70\ The FY 2022 COLA assumption is based on President Biden's
``Letter to the Speaker of the House and the President of the Senate
on the Alternative Plan for Pay Adjustments for Civilian Federal
Employment'', issued on August 27, 2021. See White House, ``Letter
to the Speaker of the House and the President of the Senate on the
Alternative Plan for Pay Adjustments for Civilian Federal
Employees'' (Aug. 27, 2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/27/letter-to-the-speaker-of-the-house-and-the-president-of-the-senate-on-the-alternative-plan-for-pay-adjustments-for-civilian-federal-employees/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/27/letter-to-the-speaker-of-the-house-and-the-president-of-the-senate-on-the-alternative-plan-for-pay-adjustments-for-civilian-federal-employees/</a>. The FY 2023 COLA
assumption is based on the available DHS Resource Allocation Plan
(RAP) guidance as of March 29, 2021.
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<bullet> Pay and benefits for new staff: $590.0 million. Projected
FY 2022 and FY 2023 workloads exceed current workload capacity by 10.2
percent, thereby requiring additional staff. The FY 2022 and FY 2023
Staffing Allocation Models (SAMs) \71\ estimated an additional 1,921
positions are necessary to meet adjudicative processing goals and other
USCIS mission objectives, including administrative functions. This
additional staffing requirement reflects the fact that it takes USCIS
longer to adjudicate many workloads than was planned for in the FY
2016/2017 fee rule and that workload volumes and operational needs have
grown. See section V.B. for information on how workload and completion
rates affect staffing forecasts. Outside of the SAMs, USCIS has
identified the need for another 2,035 new positions to accommodate the
Asylum Processing interim final rule (IFR) and the proposed increase in
the refugee admissions ceiling to 125,000. See section V.2.c. of this
preamble for more information on how the Asylum Processing IFR, 87 FR
18078 (Mar. 29, 2022), and other rulemakings affect the fee review
budget.\72\
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\71\ The SAMs are SAS-based workforce planning tools that
estimate the staffing requirements necessary to adjudicate the
projected volume of workload receipts (in other words, applications
and petitions).
\72\ On March 29, 2022, DHS and DOJ issued an interim final
rule, Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
Officers (Asylum Processing IFR), to improve and expedite processing
of asylum claims made by noncitizens subject to expedited removal,
ensuring that those who are eligible for protection are granted
protection quickly, and those who are not are promptly removed. The
rule authorizes asylum officers within USCIS to consider the asylum
applications of individuals subject to expedited removal who assert
a fear of persecution or torture and pass the required credible fear
screening. See 87 FR 18078.
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<bullet> Realignment of 1,157 positions into the non-premium IEFA
budget: $135.5 million. This realignment includes moving 1,127
positions from IEFA premium processing funding ($129.8 million) and 30
positions that were previously funded by appropriated funds for the E-
Verify program ($5.7 million) to IEFA non-premium funding. The 1,127
positions were temporarily funded out of the premium processing budget
in the FY 2021 OP due to financial constraints. Funding these positions
with IEFA non-premium resources will allow USCIS to redirect premium
processing funds to infrastructure improvements, including investments
in USCIS' digital capabilities, as well as backlog reduction efforts.
USCIS is also realigning 30 positions from appropriated E-Verify
program funding to IEFA non-premium funding to reflect the appropriate
distribution of positions as identified in the Verification Division
SAM. The SAM identified that the 30 positions are better attributed to
the SAVE program, which is funded with IEFA non-premium funds.
Therefore, USCIS accounts for these 30 positions as increased IEFA non-
premium costs.
[[Page 430]]
c. Related Rulemakings
As stated elsewhere in this preamble with regard to the premium
processing rule and the DACA NPRM, simultaneously with this rule, DHS
is engaging in multiple rulemaking actions that are in various stages
of development.\73\ See 86 FR 53736. DHS has considered and analyzed
each of these other rules for peripheral, overlapping, or interrelated
effects on this rule and has incorporated their effects, if any, into
the supporting documentation, fee calculations, policies, and
regulatory text for this proposed rule.
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\73\ See Spring 2022 Unified Agenda of Regulatory and
Deregulatory Actions, Agency Rule List-Spring 2022, Department of
Homeland Security at <a href="https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600">https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600</a> (last accessed July 26,
2022).
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DHS is proposing changes to the USCIS fee schedule in this rule
that may be necessary to implement the rule titled ``Procedures for
Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers.'' See 87 FR
18078 (Mar. 29, 2022) (Asylum Processing IFR). In the Asylum Processing
IFR, DOJ and DHS amended the regulations governing the determination of
certain protection claims raised by individuals subject to expedited
removal and found to have a credible fear of persecution or torture.
The changes are expected to improve the Departments' ability to
consider the protection claims of individuals encountered at or near
the border and placed into expedited removal more promptly while
ensuring fundamental fairness.
DHS includes an estimated cost of the Asylum Processing IFR in our
calculation of the proposed fees to recover full costs of USCIS
implementation of the rule. Consistent with the reasoning described in
the Asylum Processing IFR, DHS has used the primary estimate of annual
costs in the model used to calculate the fees in this rule.\74\ Use of
this figure results in costs of an average $425.9 million per fiscal
year during the biennial period.\75\ This funding, which is reflected
in the figures above, would support 2,035 new staff and associated GE.
These expenses constitute approximately 31 percent of the total
projected increase in budgetary requirements from FY 2021 to FY 2022/
2023.
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\74\ See 87 FR 18078 (Mar. 29, 2022), at 18206.
\75\ DHS acknowledges that, by using the middle of the range of
costs, if actual costs are higher than that, then the USCIS fee
schedule will be set at a level that is less than what will be
required to recover all of the costs added by the Asylum Processing
IFR, all other factors remaining the same. Estimated annual costs of
the Asylum Processing IFR (mid-range estimate): FY 2022 total costs
of $438.2 million plus FY 2023 total costs of $413.6 million equals
$851.8. See 86 FR 46933-46934. Average total costs of FY 2022/2023
equal $425.9 million.
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DHS proposes to include the middle of the three Asylum Processing
IFR estimates to plan for these additional staff and other resources.
Implementation of this rulemaking is subject to resource constraints,
including available IEFA non-premium funding and revenue. When USCIS
does not have the resources that it needs to meet its goals, processing
times increase and the case processing backlog grows. USCIS evaluates
its budget and revenue for operational purposes annually, separate from
the fee review process. For example, as mentioned above, the OP is a
budget for the current year and is separate from the fee review budget
estimates for future years. If actual revenue in FY 2022 or FY 2023 is
higher than the estimates included in this proposal, then USCIS may
dedicate additional staff and resources to the Asylum Processing IFR.
If actual revenue is lower than the estimates in this proposal, then
USCIS may dedicate fewer resources to implementing the Asylum
Processing IFR. Relatedly, if the ultimate costs of implementing the
Asylum Processing IFR exceed the estimates included in this proposal,
this will strain the resources available to USCIS and processing
backlogs may grow. Future fee review budget estimates will consider
current and planned DHS and USCIS policies.
If USCIS identifies alternative funding mechanisms or resources for
the Asylum Processing IFR other than IEFA non-premium funds, the fee
review budget projections may be reduced accordingly. Therefore, with
the implementation realities of the Asylum Processing IFR and possible
congressional appropriations to fund that rule, DHS may reduce USCIS'
estimated resource requirements for FY 2022/2023 and the fees necessary
to generate those resources in a final fee rule.
d. Cost Summary
Table 5 below is a crosswalk summary of the FY 2021 OP to the FY
2022 and FY 2023 cost projections. It accounts for payroll and non-
payroll for on-board and new staff, other resource requirements or
adjustments, and the removal of costs associated with temporary
programs. The FY 2022/2023 IEFA non-premium average annual budget
requirement is estimated to be $5,150.7 million. This represents a
$1,374.4 million, or 36.4 percent, increase over the FY 2021 IEFA non-
premium budget of $3,776.3 million. As previously discussed, the
primary cost driver is payroll, which accounts for 76 percent of the
increase.
[[Page 431]]
[GRAPHIC] [TIFF OMITTED] TP04JA23.015
3. FY 2022/2023 Revenue Projections
USCIS' revenue projections are informed by internal immigration
benefit request receipt forecasts agreed to by the USCIS Volume
Projection Committee (VPC). See section V.B.1.a of this preamble for
more information on the VPC.\76\ USCIS also uses 12 months of
historical actual fee-paying receipts to account for fee-waiver and
fee-exemption trends. To project USCIS IEFA non-premium revenue, USCIS
develops application volume projections using all available data. USCIS
then considers the fee-paying rate for each application and petition
type to reflect the fact that not all applicants and petitioners pay
fees due to fee waivers and fee exemptions. USCIS uses actual revenue
collections from August 2019 to July 2020 as a basis for the fee-paying
assumptions in the FY 2022/2023 revenue projections. See section V.B.1
of this preamble for a more detailed discussion of USCIS volume
projections and fee-paying rates.
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\76\ USCIS has developed the VPC, a panel of agency experts, for
systematic immigration benefit request filing volume forecasting for
use in fee studies. USCIS has considered other business forecasting
and structured forecasting approaches and models but has found that
the VPC has a reliably accurate history of filing volume prediction.
Two annual VPC meetings consider draft and final volume projections
for several years ahead. One of three annual VPC meetings reviews
the forecasts for the previous year, compares them to actual
receipts, and discusses future improvements for greater accuracy.
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USCIS' current fee schedule is expected to yield $3.28 billion of
average annual revenue during the FY 2022/2023 biennial period. This
represents an increase of $0.80 billion, or 32 percent, from the FY
2016/2017 fee rule projection of $2.48 billion. See 81 FR 26911 (May 4,
2016). The projected revenue increase is based on the fees established
by the FY 2016/2017 fee rule and more anticipated fee-paying receipts.
The FY 2016/2017 fee rule forecasted 5,870,989 total workload receipts
and 5,140,415 fee-paying receipts. See 81 FR 26923-26924. However, the
FY 2022/2023 fee review forecasts 7,601,200 total workload receipts and
6,510,442 fee-paying receipts. See section V.B.1. of this preamble for
more information on the workload and fee-paying receipt forecasts. This
represents a 29 percent increase to workload and 26 percent increase to
fee-paying receipt volume assumptions. Despite the increase in
projected revenue above the FY 2016/2017 fee rule projection, this
additional revenue is projected to be insufficient to recover USCIS'
increased costs, as discussed in the next section.
4. Projected Cost Revenue Differential
USCIS identifies the difference between anticipated costs and
revenue, assuming no changes in fees, to determine whether the existing
fee schedule is sufficient to recover the projected full cost of
providing immigration adjudication and naturalization services or
whether a fee adjustment is necessary. Table 6 summarizes the projected
cost and revenue differential. Non-Premium Revenue represents a revenue
forecast using the current fees. Non-Premium Cost represents a budget
forecast. In any fee review, if the revenue forecast is less than the
budget forecast, then USCIS may propose new or increased fees to cover
the budget-revenue shortfall. Otherwise, USCIS may reduce certain costs
or services to cover the difference. Summary values may vary due to
rounding.
[[Page 432]]
[GRAPHIC] [TIFF OMITTED] TP04JA23.016
Historically, and for the purpose of the fee review, USCIS reports
costs and revenue as an average over the 2-year period. In Table 6,
USCIS averages FY 2022 and FY 2023 costs and revenue to determine the
projected amounts to be recovered through this rule. Based on current
immigration benefit and biometric services fees and projected volumes,
USCIS expects that if fees remained at their current levels, those fees
would generate $3.28 billion in average annual revenue in FY 2022 and
FY 2023. For the same period, the average annual cost of processing
those immigration benefit requests and providing biometric services is
$5.15 billion. This yields an average annual deficit of $1,868.2
million. In other words, USCIS expects the costs of fulfilling its
operation requirements in FY 2022/2023 will exceed projected total
revenue under its current fee structure.
Because projected costs are higher than projected revenue, USCIS
has several options to address the shortfall:
1. Reduce projected costs;
2. Use carryover funds or revenue from the recovery of prior
year obligations; or
3. Adjust fees with notice-and-comment rulemaking.
Although USCIS continues to pursue efforts to increase agency
efficiency, DHS believes that reducing the projected costs to equal the
projected revenue would degrade USCIS operations funded by the IEFA;
therefore, this is not a viable alternative to the proposed rule. The
projected amount of funding necessary to meet USCIS' operational
requirements would exceed USCIS' projected carryover in both FY 2022
and FY 2023, so USCIS is not able to rely on those funds to cover the
difference between projected revenue and costs.\77\ Likewise, USCIS
estimates that recovered revenue from prior year obligations will be
insufficient. USCIS estimates that it may recover $91.9 million in FY
2022 and $94.2 million in FY 2023 for the non-premium IEFA. Therefore,
DHS proposes to increase revenue through the fee adjustments described
in detail throughout this rule. To the extent USCIS is successful in
measurably reducing completion rates or achieving other productivity
gains, DHS will re-evaluate the fee schedule in subsequent fee rules.
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\77\ In the docket for this proposed rule, the supporting
documentation has more information on carryover estimates. See the
section titled IEFA Non-Premium Carryover Projections and Targets.
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B. Methodology
When conducting a fee review, USCIS reviews its recent operating
environment to determine the appropriate method to assign costs to
immigration benefit requests, including biometric services. USCIS uses
ABC, a business management tool that assigns resource costs to
operational activities and then to products, services, or both. USCIS
uses commercially available ABC software to create financial models.
These models determine the cost of each major step toward processing
immigration benefit requests and providing biometric services. This is
the same methodology that USCIS used in the last five fee reviews, and
it is the basis for the current fee structure. Following the FY 2016/
2017 fee rule, USCIS identified several key methodology changes to
improve the accuracy of its ABC model. For more information on these
changes, please refer to the Changes Implemented in the FY 2022/2023
Fee Review section of the supporting documentation located in the
docket of this rule.
1. Volume
USCIS uses two types of volume data in the fee review: workload and
fee-paying volume. Workload volume is a projection of the total number
of immigration benefit requests that USCIS will receive in a fiscal
year. Fee-paying volume is a projection of the number of customers that
will pay a fee when filing requests for immigration benefits. Not all
customers pay a fee. Those customers to whom a fee exemption applies or
for whom USCIS grants a fee waiver are represented in the workload
volume, but not the fee-paying volume. Customers who pay a fee fund the
cost of processing requests for fee-waived or fee-exempt immigration
benefit requests. Tables 7 and 8 compare the FY 2016/2017 fee rule
volume forecasts to the volume forecasts for this rulemaking similar to
previous fee rules. See e.g., 81 FR 26922-26924. Actual receipts from
prior years inform those forecasts, but they may not be the only reason
for differences. We explain some of the larger differences in the
paragraphs that follow Tables 7 and 8. For information on actual
receipts from previous fiscal years, see Appendix Table 13 in the
supporting documentation.
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\78\ DHS has considered the effects on this rule of all
intervening legislation, related rulemakings, and policy changes
that USCIS knows have occurred or will occur by the time the rule is
signed. However, DHS does not and cannot assert that it knows and
has considered every policy change that is planned or that may occur
at all levels and agencies of the U.S. Government that may directly
or indirectly affect this rule. Immigration policy changes
frequently and USCIS must use the best cost data available at a
point in time. Initiatives may come about without being incorporated
in the proposed and final fees simply due to the time required for
rule development and finalization. That necessary shortcoming is
ameliorated by the CFO Act requirement that DHS address the effects
of the constantly evolving immigration policy environment on its
fees, costs, and services every 2 years, as DHS has done through its
biennial fee reviews.
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a. Workload Volume and Volume Projection Committee
USCIS uses statistical modeling, immigration receipt data, and
internal assessments of future developments (such as planned
immigration policy initiatives) \78\to develop workload volume
projections. All relevant USCIS directorates and program offices are
represented on the VPC. The VPC forecasts USCIS workload volume using
statistical forecasts and subject-matter expertise from various
directorates and program offices, including the service centers,
National Benefits Center, RAIO, and regional, district, and field
offices. Input from these offices helps refine the
[[Page 433]]
statistical volume projections. The VPC reviews short- and long-term
volume trends. In most cases, time series models provide volume
projections by form type. Time series models use historical receipt
data to determine patterns (such as level, trend, and seasonality) or
correlations with historical events to forecast receipts. When
possible, other, more detailed models are also used to determine
relationships within and between different benefit request types. At
VPC meetings, the committee members deliberate on the provided
forecast, consider alternatives, and agree to a forecast by group
consensus. Workload volume is a key element used to determine the USCIS
resources needed to process benefit requests within established
adjudicative processing goals. It is also the primary cost driver for
assigning activity costs to immigration benefits and biometric services
\79\ in the USCIS ABC model. Previous fee reviews also relied on VPC
forecasts.\80\ DHS explains some of the larger differences in the
paragraphs after Table 7. Values below are the average of 2 years,
rounded to whole numbers. There may be slight differences because of
rounding.
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\79\ As fully explained later in this preamble, DHS is removing
biometric services as a separate fee in this rule, except as
associated with an Application for Temporary Protected Status and
certain other programs. Accordingly, N/A is included in the average
annual FY 2022/2023 projected workload receipts and difference
columns for biometrics in Table 7.
\80\ The FY 2010/2011 fee rule was the first to use VPC workload
estimates in a fee review. See, USCIS, FY 2010/2011 Immigration and
Examinations Fee Account Fee Review (June 11, 2010), available at
<a href="https://www.regulations.gov/document/USCIS-2009-0033-0007">https://www.regulations.gov/document/USCIS-2009-0033-0007</a>. All
subsequent fee reviews and fee rules used VPC estimates.
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BILLING CODE 9111-97-P
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[[Page 435]]
[GRAPHIC] [TIFF OMITTED] TP04JA23.018
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\81\ Combines both Forms I-526 and I-526E. USCIS revised Form I-
526 and created Form I-526E as a result of the EB-5 Reform and
Integrity Act of 2022.
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[[Page 436]]
[GRAPHIC] [TIFF OMITTED] TP04JA23.019
[[Page 437]]
[GRAPHIC] [TIFF OMITTED] TP04JA23.020
BILLING CODE 9111-97-C
Differences between the two sets of workload estimates may be
unrelated to any proposed fee or policy change. As mentioned earlier,
these estimates are based on historical data, statistical analysis, and
subject matter and policy input. For example, the Form I-90 forecast
consists of two combined forecasts: renewals and replacements. Both
Form I-90 forecasts use a time series model that allows for
seasonality. As another example, the VPC establishes two Form N-400
forecasts: civilian and military. The statistical model that the VPC
considers for the civilian Form N-400 forecast leverages survival
analysis to include individual microdata and reflects the differences
in application patterns of previous naturalization applicants. USCIS'
statistical model uses multiple factors to determine the likelihood of
naturalization of members of the pool of potential applicants,
including the length of time an individual has been a lawful permanent
resident (LPR), as well as an individual's country of origin, visa
type, and age. In contrast, the military naturalization forecast is a
time series model that does not use survival analysis. USCIS evaluates
a variety of models and methods to determine the best forecast for each
workload based on the available data and historical trends.
Some differences in workload are the result of proposed changes, in
whole or in part. Part of the large differences for Forms I-131 and I-
765 relate to a proposed change to Form I-485 fees and interim
benefits. See section VIII.H.1 for more information. In the FY 2016/
2017 fee review, USCIS determined the workload volume for Forms I-765
and I-131 that are not associated with Forms I-485 (in other words,
interim benefits). See 81 FR 26918 and 73300. The FY 2016/2017 column
in Table 7 represents only the standalone workload for Forms I-131 and
I-765 because all the interim benefit workloads bundled with Form I-485
are counted in the row for Form I-485. The FY 2022/2023 column of Table
7 includes workloads for Forms I-131 and I-765 that are either
standalone or interim benefits concurrently filed with Form I-485.
Other factors contributed to
[[Page 438]]
the differences, such as historical trends. There is no biometric
services workload forecast for FY 2022/2023 (apart from the TPS
workload, as discussed in section E.2 below) because of the proposal to
incorporate the cost of providing biometric services in the underlying
form fees, as explained in section VIII.E of this preamble.
A comparison of the two sets of forecasts, in isolation, may not
illustrate USCIS trends in the several years between fee reviews. For
example, when USCIS estimated workload for the FY 2016/2017 fee rule,
it had been several years since receipts for Form I-140 were over
100,000. As such, the receipt estimate was reasonable at the time and
consistent with receipts from FY 2009 to 2014. Since FY 2015, Form I-
140 receipts are routinely over 100,000. There could be a number of
reasons for this change, such as availability of employment-based visas
or increased demand following economic or policy changes in the
intervening years. As another example, filing trends for Form I-539
have changed significantly since the FY 2016/2017 fee rule. The
forecast for FY 2022/2023 is based on Student and Exchange Visitor
Information System data, which included 225,000 Form I-539 filings
annually beginning in January 2021. DHS expects the vast majority of
this workload to be optional practical training (OPT) and science,
technology, engineering, and mathematics optional practical training
(STEM OPT) extensions. As yet another example, the adoption workload
has been trending downward for many years. Comparing only two data
points in Table 7 does not show that the difference is just the
continuation of a gradual trend over many years. Finally, Table 7 does
not represent the entirety of USCIS workload. It excludes some
workloads without fees. For example, asylum and refugee workloads
(credible fear, reasonable fear, Forms I-589 and I-590) and other
humanitarian workloads (for example, Forms I-914 and I-918) are
excluded from the tables 7 and 8. These omitted workloads are part of
the ABC model so that USCIS can estimate their total cost. However,
only fee-paying volumes generate revenue for USCIS. See section III.C,
Full Cost Recovery, of this preamble for more information. As explained
later in this preamble, the proposed fees exclude temporary or
uncertain workloads, such as TPS and DACA. See sections V.C. and V.D of
this preamble.
b. Fee-Paying Volume
USCIS uses historical revenue and receipt data to determine the
number of individuals who paid a fee for each immigration or
naturalization benefit request. Fee-paying percentages by form are
usually steady year over year. USCIS uses monthly fee-paying
percentages in its forecasts to capture seasonality during the year.
Additionally, policy changes, legislation, and executive orders are
frequently some of the factors that affect fee-paying percentages, so
older historical data to calculate the percentages can be counter-
productive. In this proposed rule, USCIS therefore referenced revenue
and receipts data from August 2019 to July 2020 for fee-paying figures.
Total revenue for an immigration benefit request is divided by its fee
to determine the historical number of fee-paying immigration benefit
requests. Fee-paying receipts are compared to the total number of
receipts (workload volume) to determine a fee-paying percentage for
each immigration benefit request. When appropriate, projected fee-
paying volume is adjusted to reflect filing trends and anticipated
policy changes. These projections include the effects of changes that
DHS is proposing in this rule.\82\ DHS explains some of the larger
differences in the paragraphs after Table 8. Values below are the
average of two years, rounded to whole numbers. There may be slight
differences because of rounding.
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\82\ Table 8 compares the projections from the FY 2016/2017 fee
rule with the projections of the FY 2022/2023 fee review. As
discussed, these projections are based on a number of factors,
including historical data of actual receipts. Although the FY 2016/
2017 Fee Review differs to some degree from the actual receipts
since the 2016 fee rule, USCIS compares fee projections against each
other, rather than against actual receipts, to ensure consistency.
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\83\ Combines both Forms I-526 and I-526E. USCIS revised Form I-
526 and created Form I-526E as a result of the EB-5 Reform and
Integrity Act of 2022.
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All fee-paying workload is a subset of total workload, as discussed
in the previous section. As such, changes to workload may affect the
fee-paying projections. As explained above, USCIS estimates fee-paying
receipts by applying a percentage of fee-paying receipts to the
workload forecast. For a general explanation on how fee-paying volumes
affect fees, see section VI, Fee Waivers, of this preamble. Some
differences in fee-paying projections are the result of proposed
changes, in whole or in part. For example, part of the large
differences between the past and current projections for Forms I-131
and I-765 relate to the proposed change to Form I-485 fees and interim
benefits. See section VIII.H.1 for more information. In the FY 2016/
2017 fee review, USCIS determined the fee-paying volume for Forms I-765
and I-131 that are not associated with Forms I-485. See 81 FR 26918 and
73300. The FY 2016/2017 column in Table 8 represents the forecasted
standalone fee-paying receipts only for Forms I-131 and I-765 because
all interim benefit fee-paying receipts bundled with Form I-485 are
counted in the row for Form I-485. See 81 FR 26919 and 26924. The FY
2022/2023 column of Table 8 includes fee-paying receipts for Forms I-
131 and I-765 that are either standalone or interim benefits
concurrently filed with Form I-485. Other factors contributed to the
differences, such as historical trends. There is no workload forecast
for biometric services for FY 2022/2023 because of the proposed
elimination of the discrete biometric services fee for most benefit
requestors, as explained in section VIII.E of this preamble.
Table 9 is a comparison of fee-paying percentages in the FY 2016/
2017 fee rule and this proposed rule. It divides the fee-paying volumes
in Table 8 by the workload volumes in Table 7 to calculate the fee-
paying percentages. There may be slight differences because of
rounding.
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2. Completion Rates
USCIS completion rates are the average hours per adjudication of an
immigration benefit request. They identify the adjudicative time
required to complete (render a decision on) specific immigration
benefit requests. The completion rate for each benefit type represents
an average. Completion rates reflect what is termed ``touch time,'' or
the time an employee with adjudicative responsibilities actually
handles the case. This does not reflect ``queue time,'' or time spent
waiting, for example, for additional evidence or supervisory approval.
Completion rates do not reflect the total processing time applicants,
petitioners, and requestors can expect to wait for a decision on their
case after USCIS accepts it.
USCIS requires most employees who adjudicate immigration benefit
requests to report adjudication hours and case completions by benefit
type. The reported hours and counts are aggregate information that does
not allow USCIS to estimate effects of individual policy changes. USCIS
calculates completion rates by dividing the adjudication hours by the
number of completions for the same period. As such, completion rates
represent an average hours per completion. In addition to using these
data to determine fees, completion rates help determine appropriate
staffing allocations to handle projected workload. The USCIS Office of
Performance and Quality (OPQ), field offices, regional management, and
service centers continually review the data to capture updates or
implementation of new processes and ensure continued accuracy. The
continual availability of the information enables USCIS to update cost
information for each fee review. The completion rates may change
between fee reviews based on more recently reported hours and counts.
Possible reasons for completion rate changes include changes to a form,
policy changes, and more recently, effects of the pandemic. USCIS
relied on completion rates before the pandemic to remove this effect
from the fee review. When employees who adjudicate immigration benefit
requests do not report adjudication hours, USCIS uses subject-matter
expertise to estimate completion rates.
USCIS does not list completion rates for the following immigration
benefit requests, forms, or other services, due to the special nature
of their processing, as explained below:
<bullet> I-131A, Application for Carrier Documentation. In this
proposed rule, DHS anticipates that the Department of State (DOS)
Bureau of Consular Affairs, located outside of the United States, would
process all Form I-131A workload. Thus, USCIS projects it will have no
hours or workload for Form I-131A in FY 2022/2023 and does not
calculate a completion rate for this proposed rule.
<bullet> H-1B Registration Process. Before a petitioner is eligible
to file an H-1B cap-subject petition (including those eligible for the
20,000-petition advanced degree exemption), the prospective petitioner
must register electronically through the USCIS website and have their
registration selected. See 84 FR 888 (Jan. 31, 2019). USCIS does not
adjudicate registrations received through the H-1B registration process
because the process is automated.
<bullet> USCIS Immigrant Fee. USCIS does not adjudicate
applications for an immigrant visa. Rather, individuals located outside
of the United States apply with a DOS consular officer for an
[[Page 447]]
immigrant visa. If DOS issues the immigrant visa, the individual may
apply with a Customs and Border Protection (CBP) officer at a port of
entry for admission to the United States as an immigrant. This fee
represents USCIS' costs to create and maintain files and to issue
permanent resident cards (also known as ``Green Cards'') to individuals
who go through this process. See 8 CFR 103.7(b)(1)(i)(D) (Oct. 1,
2020), proposed 8 CFR 106.2(c)(3).
<bullet> TPS. DHS proposes not to rely on TPS fee revenue for
recovering USCIS' operational expenses, consistent with previous fee
rules. See 81 FR 73312-73313. TPS designations may be terminated under
current law or may decrease due to a reduction in the eligible
population. Termination of the program, in whole or in part, after the
fees are set would result in unrealized revenue and a commensurate
budgetary shortfall. After the fee schedule is effective, fees cannot
be adjusted until the next fee schedule notice-and-comment rulemaking.
Thus, temporary programs subject to termination based on changed
circumstances are generally not included in the fee-setting model.
Therefore, USCIS excludes the completion rate, as well as workload
volumes and marginal costs, for Form I-821, Application for Temporary
Protected Status, and associated Form I-765 filings from discussion in
this proposed rule. DHS cannot increase the $50 initial statutory
registration fee permitted under INA sec. 244(c)(1)(B) or establish a
re-registration fee for TPS. Therefore, to recover some of the costs of
administering the TPS program, USCIS will continue to charge the
biometric services fee, where required, and the fee for an employment
authorization document (EAD), as permitted under 8 U.S.C. 1254b.
[[Page 448]]
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\84\ See USCIS, Questions and Answers: Credible Fear Screening
available at <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening">https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening</a> (last updated
July 15, 2015).
\85\ USCIS does not track distinct refugee travel document
completion rates, nor does it track rates by applicant age group.
The completion rate here is for a re-entry permit, a similar travel
document.
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\86\ See USCIS, Questions and Answers: Reasonable Fear
Screening, available at <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-reasonable-fear-screenings">https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-reasonable-fear-screenings</a>
(last updated June 18, 2013).
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BILLING CODE 9111-97-C
3. Assessing Proposed Fees
Historically, as a matter of policy, DHS has used its discretion to
limit fee increases for certain immigration benefit request fees that
would be overly burdensome on applicants, petitioners, and requestors
if set at ABC model output levels. Previous proposed IEFA fee schedules
referred to limited fee increases as ``low volume reallocation'' or
``cost reallocation.'' \87\ Despite the two separate phrases, the
calculation for both is the same. In this proposed rule, DHS will use
the phrase ``cost reallocation.'' In the FY 2016/2017 fee rule, USCIS
calculated an 8 percent limited fee increase for certain immigration
benefit request fees.\88\ For this proposed rule, USCIS calculated a
limited fee increase of approximately 18 percent using a similar
methodology as the FY 2016/2017 fee rule.\89\ The 18 percent is
approximately the difference between the average current fee compared
to the average ABC model output. The sum of the current fees,
multiplied by the projected FY 2022/2023 fee-paying receipts for each
immigration benefit type, divided by the total fee-paying receipts, is
$518. The model output is the total cost determined by the ABC model by
fee-paying receipts to determine a fee-paying unit cost. The sum of the
ABC model outputs, multiplied by the projected FY 2022/2023 receipts
for each immigration benefit type, divided by the fee-paying receipts,
is $614. There is a $96 or approximate 18 percent difference between
the two averages. These averages exclude fees that do not receive cost
reallocation, such as the separate biometric services fee and the
proposed genealogy fees. When DHS proposes to maintain the current fee,
it affects this calculation. In those cases, the formula multiplies the
current fee by fee-paying receipts instead of using the model output.
Except for Form I-90 filed online, the estimated volumes are low for
the fees that DHS proposes to maintain at the current level. As such,
if DHS did not propose to maintain those current fees, the result would
round to 17 percent. Thus, DHS has determined that 18 percent is a
reasonable figure at which to cap those requests for which USCIS
proposes to limit fee increases using the cost reallocation calculation
method.
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\87\ The FY 2016/2017 proposed fee schedule used both phrases.
See 81 FR 26915. The FY 2010/2011 and FY 2008/2009 proposed fee
schedules used the phrase ``low volume reallocation.'' See 75 FR
33461 and 72 FR 4910, respectively.
\88\ The 8-percent increase was the percentage difference
between the current fees and the model output before reallocation,
weighted by fee-paying volume. See 81 FR 73296. The model output is
a projected fee-paying unit cost from the ABC model. It is projected
total cost divided by projected fee-paying receipts. While each fee
review may calculate a different percentage, the formula for the
calculation remains the same.
\89\ In the docket for this proposed rule, the supporting
documentation has more information on the proposed cost reallocation
and the ABC model output. See the Cost Reallocation column of
Appendix Table 4: Proposed Fees by Immigration Benefit Request. The
docket also includes documentation for the fee schedule.
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Accordingly, in consideration of the need to balance the
beneficiary-pays and ability-to-pay principles and to achieve important
policy outcomes (for example, promoting naturalization, funding asylum
and other humanitarian programs, and making immigration benefits
affordable and accessible), DHS proposes that the increase in the
following immigration benefit request fees is limited to 18 percent for
the current fees:
<bullet> Form I-192, Application for Advance Permission to Enter as
Nonimmigrant.
<bullet> Form I-193, Application for Waiver of Passport and/or
Visa.
<bullet> Form I-290B, Notice of Appeal or Motion.
<bullet> Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant.
<bullet> Form I-600, Petition to Classify Orphan as an Immediate
Relative.
<bullet> Form I-600A, Application for Advance Processing of an
Orphan Petition.
<bullet> Form I-600A/I-600, Supplement 3, Request for Action on
Approved Form I-600A/I-600.\90\
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\90\ DHS explains the purpose of this proposed form in section
VIII.N.4 of this preamble.
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<bullet> Form I-612, Application for Waiver of the Foreign
Residence Requirement (Under Section 212(e) of the INA, as Amended).
<bullet> Form I-800, Petition to Classify Convention Adoptee as an
Immediate Relative.
<bullet> Form I-800A, Application for Determination of Suitability
to Adopt a Child from a Convention Country.
<bullet> Form I-800A, Supplement 3, Request for Action on Approved
Form I-800A.
<bullet> Form I-881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal.
<bullet> Form I-929, Petition for Qualifying Family Member of a U-1
Nonimmigrant.
<bullet> Form N-300, Application to File Declaration of Intention.
<bullet> Form N-336, Request for Hearing on a Decision in
Naturalization Proceedings.
<bullet> Form N-400, Application for Naturalization.
<bullet> Form N-470, Application to Preserve Residence for
Naturalization Purposes.
<bullet> Form N-600, Application for Certificate of Citizenship.
<bullet> Form N-600K, Application for Citizenship and Issuance of
Certificate Under Section 322.
The proposed increase of approximately 18 percent may vary slightly
due to rounding. DHS rounds
[[Page 451]]
all IEFA non-premium fees to the nearest $5 increment.
For many of these form types, DHS and DOJ have a long history of
special consideration for these immigration and naturalization fees.
For example, DOJ did not change fees for Forms I-290B, I-360, N-300, N-
336, N-470 in the first IEFA fee rule that used ABC modeling. See 63 FR
1775 (Jan. 12, 1998) at 1784 (proposed rule); 63 FR 43604 (final rule).
DOJ maintained the prior fee for these forms until it could capture
sufficient information for these low (less than 10,000 per year) volume
forms to change the fees in a separate rulemaking. See 64 FR 69883
(Dec. 15, 1999). DHS has a history of setting adoption-related fees
lower than the amount suggested by the fee-setting methodology, as
discussed in section VIII.N.1 of this proposed rule. DHS also has a
long history of special consideration for naturalization fees, as
discussed in section VIII.F. of this preamble.
To allow the proposed fee schedule to recover full cost, DHS
proposes that other fees be increased to offset the difference between
the projected cost of adjudicating these benefit requests and the
revenue generated by the 18 percent limited fee increase. Similarly,
DHS proposes that other fees increase to offset a projected increase in
workloads that are exempt from paying fees or that are capped at a fee
less than what the ABC model indicates. In this proposed rule, DHS
refers to the process of recovering full cost for workloads without
fees or the shifting of cost burdens among benefit request fees due to
other policy considerations as cost reallocation.
DHS proposes to maintain the current fee for several benefit
requests. These proposed fees would have decreased based on the ABC
model results. However, DHS proposes to maintain the current fees. This
will allow these forms to fund some of the costs of other forms and may
limit the fee increase suggested by the fee calculation model for those
other forms. In this proposed rule, DHS proposes to not change the
following fees:
<bullet> Form I-90, Application to Replace Permanent Resident Card
when filed online.
<bullet> Form I-131A, Application for Travel Document (Carrier
Documentation).
<bullet> Form I-191, Application for Relief Under Former Section
212(c) of the Immigration and Nationality Act (INA).
<bullet> Form I-698, Application to Adjust Status from Temporary to
Permanent Resident (Under Section 245A of the INA).
<bullet> Form N-565, Application for Replacement Naturalization/
Citizenship Document.
Some proposed fees are significantly higher than the current fees.
In some cases, this is because DHS proposes to not limit those fee
increases, as it has done in the past, for policy reasons, as explained
below. For example, previous fee schedules limited the increase for the
immigration benefit requests associated with Forms I-212, I-601, I-
601A, and I-765.\91\ See 81 FR 26915-26916. In the FY 2016/2017 fee
rule, DHS stopped limiting the fee increase for inadmissibility waivers
like Forms I-212 and I-601. See 81 FR 73306-73307. In addition, in this
proposed rule, DHS proposes not to limit the fee increase to 18 percent
for the following immigration benefit requests:
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\91\ See section VIII.F, Naturalization and Citizenship-Related
Forms (discussion on the proposed naturalization fees).
---------------------------------------------------------------------------
<bullet> Form I-601A, Provisional Unlawful Presence Waiver; and
<bullet> Form I-765, Application for Employment Authorization.
DHS is not proposing to limit the fee increases for these two
immigration benefit requests because, if we did, then other proposed
fees would have to increase to recover full cost. For example, DHS
limited the fee increase for Form I-765 in the FY 2016/2017 fee rule
for humanitarian and practical reasons. See 81 FR 26916. Many
individuals seeking immigration benefits face financial obstacles and
cannot earn money through lawful employment in the United States until
they receive an EAD. In this rule, DHS proposes additional fee
exemptions instead of limiting the proposed fee for Form I-765. If DHS
were to propose limited fee increases for all of the immigration
benefit request fees that were limited in the FY 2016/2017 fee rule,
then some proposed fees could increase by as much as $2,855, with the
average of those changes being an increase of $79 per immigration
benefit request. The rationale for some of these proposed changes is
further discussed later in the preamble. See section VIII, Other
Proposed Changes in the FY 2022/2023 Fee Schedule.
Later in this preamble, DHS discusses the proposal for separate
online and paper filing fees. See section VIII.G. DHS bases the
proposed separate online and paper fees on ABC model results. When DHS
proposes limited fee increases or to continue using the current fee,
the calculation is based on the current fee instead of ABC model
results. As such, there are not separate proposed fees for online and
paper filing for immigration benefit requests with limited fee
increases or for those held to the current fee.
4. Funding the Asylum Program With Employer Petition Fees
DHS proposes a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, or Form I-140, Immigrant Petition for Alien Worker. Proposed 8
CFR 106.2(c)(13). DHS proposes this new fee as a way to mitigate the
scope of the proposed fee increases in this rule for individual
applicants and petitioners. DHS has determined that the Asylum Program
Fee is an effective way to shift some costs to requests that are
generally submitted by petitioners who have more ability to pay, as
opposed to shifting those costs to all other fee payers. DHS arrived at
the amount of the Asylum Program Fee by calculating the amount that
would need to be added to the fees for Form I-129, Petition for a
Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien
Worker, to collect the Asylum Processing IFR estimated annual
costs.\92\ See Table 11 for details on the calculation. The Asylum
Program Fee may be used to fund part of the costs of administering the
entire asylum program and would be due in addition to the fee those
petitioners would pay using USCIS' standard costing and fee calculation
methodologies.
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\92\ DHS notes that in section V.A.2.c of this preamble it
identified the costs of the Asylum Processing IFR as averaging
$425.9 million annually over FY 2022/2023. That figure represents
the estimated costs that are directly attributable to the
implementation of that rule. DHS divided this cost estimate by the
estimated fee-paying volume for Forms I-129 and I-140 to determine
the $600 Asylum Program Fee. Calculation: $425,900,395/708,630 =
$601.02. DHS rounded to the nearest $5, consistent with other
proposed fees.
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BILLING CODE 9111-97-P
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BILLING CODE 9111-97-C
This Asylum Program Fee adds a fee for Form I-129 and Form I-140
petitioners of $600 while maintaining lower proposed fees for other
immigration benefit requestors than would be proposed if the costs were
spread among all other fee payers. For example, charging the Asylum
Program Fee only to employer petitions reduces the proposed Form I-485
fee by $170 compared to a fee schedule without the cost shift.
Similarly, the proposed fee to file Form I-765 on paper is $70 less
than it would be absent the proposed Asylum Program Fee. The proposed
fees for Forms I-485, I-765, and others are lower in a scenario with
the shift of asylum program costs to employers through the new fee
because all IEFA non-premium fees are related. Each fee helps recover
the cost of work without fees (Forms I-589, I-590, I-914, I-918, etc.)
or work with fees that do not recover full cost (Forms N-400, I-600, I-
800, etc.). If Forms I-129 and I-140 recover more of those costs, then
that means other forms need not recover as much, resulting in lower
proposed fees for Forms I-485, I-765, and others that recover more than
full cost in this proposal. Table 12 shows the proposed IEFA non-
premium fees for Forms I-129 and I-140, including the Asylum Program
Fee. The table excludes additional statutory or premium-processing fees
that petitioners may pay for these immigration benefit requests.\93\
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\93\ Most petitioners using Forms I-129 and I-140 may request
expedited processing for an additional $2,500 or $1,500 premium
processing fee. See USCIS, I-907, Request for Premium Processing
Service, <a href="https://www.uscis.gov/i-907">https://www.uscis.gov/i-907</a> (last updated Sep. 30, 2021).
Certain H-1B and L petitions may have to pay up to $6,000 in
additional statutory fees, which DHS is unable to adjust. USCIS does
not keep most of the revenue of these fees. CBP receives 50 percent
of the $4,000 9-11 Response and Biometric Entry-Exit fee and the
remaining 50 percent is deposited into the General Fund of the
Treasury. USCIS retains 5 percent of the $1,500 or $750 American
Competitiveness and Workforce Improvement Act (ACWIA) fee. The
remainder goes to the Department of Labor and the National Science
Foundation. USCIS keeps one third of the $500 Fraud Detection and
Prevention fee, while the remainder is split between the Department
of State and the Department of Labor. These statutory fees are in
addition to the current Form I-129 fee of $460 and optional premium
processing fee. See USCIS, H and L Filing Fees for Form I-129,
Petition for a Nonimmigrant Worker, <a href="https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker">https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker</a> (last
updated Feb. 20, 2018).
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[[Page 453]]
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BILLING CODE 9111-97-C
The proposed $600 Asylum Program Fee would apply to all fee-paying
receipts for Forms I-129, I-129CW, and I-140. For example, it would
apply to all initial petitions, changes of status, and extensions of
stay that use Form I-129.
DHS acknowledges that the scope of the proposed fee increases in
this rule is significant. DHS proposes this cost shifting approach with
the Asylum Program Fee to place greater emphasis on the ability-to-pay
principle for determining user fees. Petitioners for immigrant and
nonimmigrant workers generally are required to have the resources
necessary to pay the worker(s) for whom the petition is filed, and the
fees that the employer must pay USCIS to file a petition are not
significant compared to even a small \94\ petitioner's revenue and
profit. That determination is not changed by the proposed Asylum
Program Fee.
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\94\ Small is defined by U.S. Small Business Administration
Guidelines. See Small Entity Analysis for the FY22/23 U.S.
Citizenship and Immigration Services Fee Schedule Proposed Rule in
Supporting Documents.
---------------------------------------------------------------------------
DHS considered proposing to transfer the costs of other
humanitarian programs, such as the T, U, VAWA, SIJ, and refugee
programs, to those who file benefit requests that may be able to better
afford to pay fees. DHS recognizes, however, that we have always spread
costs of free services that USCIS provides across all other fee-paying
requests in the past and we have never directly transferred the costs
of one program to another. See, e.g., 85 FR 46869 (stating, ``For the
fees that DHS does not limit, we use the total cost for each form to
reallocate the cost of limited fee increases or workload without
fees.''); 75 FR 58973 (Stating, ``To the extent not supported by
appropriations, the cost of providing free or reduced services must be
transferred to all other fee-paying applicants.''); 72 FR 29865
(stating, ``As with any other waiver, the loss of that fee revenue
would necessarily be spread across all other benefit applications and
petitions, having the potential to increase those fees.''). After
considering the impact on all of the fees calculated by the model, DHS
is proposing that the Asylum Program Fee for Forms I-129 and I-140 is
the appropriate place to shift some of the costs of the asylum.
DHS does not propose this Asylum Program Fee without having
carefully considered its implications and effects. DHS realizes that
some petitioners will object to funding the costs of USCIS-administered
programs to which they have no connection or from which they receive no
direct benefit. DHS is committed to reducing barriers and promoting
accessibility to immigration benefits, and knows that the beneficiaries
of Forms I-129 and I-140 fuel our economy, contribute to our arts,
culture, and government, and have helped the United States lead the
world in science, technology, and innovation. DHS is also aware that
Forms I-129 and I-140 are submitted by non-profit entities,
organizations performing research for government agencies, as well as
farms, small businesses, and individuals. DHS appreciates that non-
profit or small entities may not have the same level of financial
resources as many large, for-profit corporations that also submit
petitions for foreign workers. In our Small Entity Analysis (SEA) for
this proposed rule, we provide samples of the I-129 and I-140 forms,
and how the fees may impact the small entities with the Asylum Program
Fee. Within the SEA, DHS determined the average impacts to employers
who file a petition based on their total revenue and profits. For Form
I-129, approximately 90 percent of the small entities in the sample
experienced an economic impact of less than 1 percent of their reported
revenue. For Form I-140, approximately 98 percent of the small entities
in the sample experienced an economic impact of less than 1 percent of
their reported revenue. USCIS acknowledges that those small entities
with greater than 1 percent impact may file fewer petitions as a result
of this proposed rule. As previously indicated, the success of the
USCIS fee model and this rulemaking in generating the necessary revenue
depends on the filing volumes not falling short of those projected
herein. At the same time, USCIS is charged with administering the
asylum program using fee revenue and must make considered judgments
about how to fund it using available and appropriate means. Balancing
both of those goals, and
[[Page 454]]
considering the resources of the Form I-129 and I-140 filing
communities, DHS decided to propose this surcharge. DHS will re-
evaluate the Asylum Program Fee based on the status of the Asylum
Processing IFR and any funding appropriated for it when DHS develops
its final fee rule.
C. Exclusion of Temporary or Uncertain Programs
As stated in section V.B.1.b. of this preamble, the success of the
fees established by this rulemaking in providing the funding necessary
to sustain USCIS service levels depends on the projected volume of fee-
paying requests filed after this rule takes effect being at or near the
level projected. If a program is ended, is partially curtailed, or
substantially declines, USCIS is at risk of not achieving the projected
and necessary revenue. Therefore, USCIS excludes from the fee
calculation model the costs and revenue associated with programs that
are temporary by definition or where it is possible that the program
will diminish or cease to exist. This exclusion includes Form I-821,
Application for Temporary Protected Status, and Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, as well as the
Form I-765 filings and biometrics fees associated with both programs.
DHS excludes projected revenue from expiring or temporary programs
in setting the fees required to support baseline operations due to the
uncertainty associated with such programs. For example, the Secretary
may designate a foreign country for TPS due to conditions in the
country that temporarily prevent the country's nationals from returning
safely, or in certain circumstances where the country is temporarily
unable to adequately handle the return of its nationals. TPS, however,
is a temporary benefit, and TPS designations may be terminated. See INA
sec. 244(b)(3)(B), 8 U.S.C. 1254a(b)(3)(B). Likewise, DACA allows
certain individuals who meet specific guidelines to request
consideration of deferred action from USCIS for a specified period
unless terminated. DACA is an administrative exercise of enforcement
discretion and is implemented at the discretion of DHS, given that it
has insufficient resources to enforce the immigration laws against
every noncitizen without lawful immigration status. Because DACA is
temporary act of enforcement discretion and may be terminated, it is
excluded from this fee review, as discussed further in the next
section.
DHS excludes the costs and revenue associated with these programs
because program eligibility is subject to the discretion of the
Department. Because the future of these programs is difficult to
predict, as discussed later in this section, USCIS has excluded the
cost and workload of these programs from the fee review and does not
propose to allocate overhead and other fixed costs to these workload
volumes. This mitigates an unnecessary revenue risk. In other words, if
DHS established the USCIS fee schedule based on revenue from these
programs, and the eligible programs diminish or cease to exist, USCIS
will not realize the projected revenue and would not have enough
revenue to recover full cost of overhead and other fixed costs. USCIS
analyzes variable unit costs associated with processing these benefit
types and uses volume forecasts to exclude their costs from the fee
review budget and ABC model.
All fee revenue deposited into the IEFA is pooled and collectively
used to finance USCIS operations including DACA, TPS, and other
temporary programs. USCIS also responds to surges in customer demand
for services by realigning resources to cover the cost of processing.
Consequently, USCIS is capable of funding these programs even though
their costs are not included in the fee review budget or ABC model. By
excluding programs that are temporary by nature, DHS maintains the
integrity of the ABC model, better ensures recovery of full costs, and
mitigates revenue risk from unreliable sources. This approach is
consistent with prevailing guidance on the subject as stated b
[…truncated; see source link]Indexed from Federal Register on January 4, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.