Rule2024-01427
U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 31, 2024
Effective
April 1, 2024
Issuing agencies
Homeland Security Department
Abstract
This final rule adjusts certain immigration and naturalization benefit request fees charged by USCIS. This rule also provides additional fee exemptions for certain humanitarian categories and makes changes to certain other immigration benefit request requirements. USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the full cost of providing adjudication and naturalization services. DHS is adjusting the fee schedule to fully recover costs and maintain adequate service. This final rule also responds to public comments received on the USCIS proposed fee schedule published on January 4, 2023.
Full Text
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<title>Federal Register, Volume 89 Issue 21 (Wednesday, January 31, 2024)</title>
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[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Rules and Regulations]
[Pages 6194-6400]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01427]
[[Page 6193]]
Vol. 89
Wednesday,
No. 21
January 31, 2024
Part II
Department of Homeland Security
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8 CFR Parts 103, 106, 204,, et al.
U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Final Rule
Federal Register / Vol. 89 , No. 21 / Wednesday, January 31, 2024 /
Rules and Regulations
[[Page 6194]]
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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 (USCIS), Department
of Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: This final rule adjusts certain immigration and naturalization
benefit request fees charged by USCIS. This rule also provides
additional fee exemptions for certain humanitarian categories and makes
changes to certain other immigration benefit request requirements.
USCIS conducted a comprehensive biennial fee review and determined that
current fees do not recover the full cost of providing adjudication and
naturalization services. DHS is adjusting the fee schedule to fully
recover costs and maintain adequate service. This final rule also
responds to public comments received on the USCIS proposed fee schedule
published on January 4, 2023.
DATES: This final rule is effective April 1, 2024. Any benefit request
postmarked on or after this date must be accompanied with the fees
established by this final rule.
Public Engagement date: DHS will hold a virtual public engagement
session during which USCIS will discuss the changes made in this final
rule. The session will be held at 2 p,m. Eastern on Feb. 22, 2024.
Register for the engagement here: <a href="https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081">https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081</a>.
USCIS will allot time during the session to answer questions
submitted in advance. Please email questions to
<a href="/cdn-cgi/l/email-protection#84f4f1e6e8ede7aae1eae3e5e3e1e9e1eaf0c4f1f7e7edf7aae0ecf7aae3ebf2"><span class="__cf_email__" data-cfemail="dcaca9beb0b5bff2b9b2bbbdbbb9b1b9b2a89ca9afbfb5aff2b8b4aff2bbb3aa">[email protected]</span></a> by 4 p.m. Eastern on Thursday, Feb. 8,
2024, and use ``Fee Rule Webinar'' in the subject link. Please note
that USCIS cannot answer case-specific inquiries during the session.
ADDRESSES: Docket: To view comments on the proposed rule that preceded
this rule, search for docket number USCIS 2021-0010 on the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Carol Cribbs, Deputy Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 5900 Capital Gateway Dr., Camp Springs, MD 20746;
telephone 240-721-3000 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Changes From the Proposed Rule
D. Summary of Final Fees
E. Summary of Costs and Benefits
F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking
II. Background
A. History
B. Authority and Guidance
C. Changes From the Proposed Rule
D. Corrections
E. Status of Previous USCIS Fee Regulations
F. Severability
III. Related Rulemakings and Policies
A. New Processes
B. Effects of Temporary Programs or Discretionary Programs and
Processes
C. Lawful Pathways Rule
D. Premium Processing--Emergency Stopgap USCIS Stabilization Act
E. Premium Processing Inflation Adjustment
F. EB-5 Reform and Integrity Act of 2022 and Related Rules
G. Modernizing H-1B Requirements, Providing Flexibility in the
F-1 Program, and Program Improvements Affecting Other Nonimmigrant
Workers
H. Citizenship and Naturalization and Other Related
Flexibilities
I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Proposed Rule
C. Basis for the Fee Review
D. FY 2022/2023 IEFA Fee Review
E. Fee Waivers
F. Fee Exemptions
G. Fee Changes by Benefit Category
H. Statutory and Regulatory Requirements
I. Out of Scope
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review)
and Executive Order 14094 (Modernizing Regulatory Review)
B. Regulatory Flexibility Act--Final Regulatory Flexibility
Analysis (FRFA)
C. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
D. Unfunded Mandates Reform Act
E. Executive Order 12132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Tribal Governments)
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act
List of Acronyms and Abbreviations
AAO Administrative Appeals Office
ABC Activity-Based Costing
ACWIA American Competitiveness and Workforce Improvement Act
APA Administrative Procedure Act
APD Advance Parole Documents
ASVVP Administrative Site Visit and Verification Program
BFD Bona Fide Determination
CAA Cuban Adjustment Act of 1966
CBP U.S. Customs and Border Protection
CFO Chief Financial Officer
CFR Code of Federal Regulations
CIS The Office of the Citizenship and Immigration Services
COVID Coronavirus Disease
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
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
FDNS Fraud Detection and National Security Directorate
FOIA Freedom of Information Act
FPG Federal Poverty Guidelines
FR Federal Register
FRFA Final Regulatory Flexibility Analysis
FTE Full-Time Equivalent
FY Fiscal Year
GAO Government Accountability Office
HHS Department of Health and Human Services
HRIFA Haitian Refugee Immigration Fairness Act
ICE U.S. Immigration and Customs Enforcement
IEFA Immigration Examinations Fee Account
IFR Interim final rule
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IPO Immigrant Investor Program Office
IRS Internal Revenue Service
ISAF International Security Assistance Forces
IT information technology
IOAA Independent Offices Appropriations Act
LPR Lawful Permanent Resident
NACARA Nicaraguan Adjustment and Central American Relief Act
NAICS North American Industry Classification System
NARA National Archives and Records Administration
[[Page 6195]]
NEPA National Environmental Policy Act
NOID Notice of Intent to Deny
NPRM Notice of Proposed Rulemaking
NRC National Records Centers
OAW Operation Allies Welcome
OIG DHS Office of the Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OPT Optional Practical Training
PRA Paperwork Reduction Act of 1995
PRC Permanent Resident Card or Green Card \1\
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\1\ DHS uses the informal term ``Green Card'' interchangeably
with or to refer to a Permanent Resident Card, USCIS Form I-551.
See, e.g., Green Card, at <a href="https://www.uscis.gov/green-card">https://www.uscis.gov/green-card</a> (last
viewed Dec. 5, 2023).
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Pub. L. Public Law
RFA Regulatory Flexibility Act
RFE Requests for Evidence
RIA Regulatory Impact Analysis
SBA Small Business Administration
SEA Small Entity Analysis
Secretary Secretary of Homeland Security
SIJ Special Immigrant Juvenile
SNAP Supplemental Nutrition Assistance Program
SSI Supplemental Security Income
SSN Social Security number
Stat. U.S. Statutes at Large
STEM Science, Technology, Engineering, and Mathematics
TPS Temporary Protected Status
TVPRA William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
VAWA Violence Against Women Act
VTVPA Victims of Trafficking and Violence Protection Act of 2000
I. Executive Summary
A. Purpose of the Regulatory Action
DHS is adjusting the fee schedule for U.S. Citizenship and
Immigration Services (USCIS) immigration benefit requests.\2\ As stated
in the proposed rule, 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. Most of these fees have
not changed since 2016 despite increased costs of federal salaries and
inflation costs for other goods and services. This rule also revises
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 established under INA section 286(u), 8 U.S.C.
1356(u) are also IEFA fees, but premium processing fees do not change
in this rule.
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\2\ DHS uses the term ``benefit request'' throughout this rule
as defined in 8 CFR 1.2 to mean any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit. The term benefit request applies regardless
of if the title of the request uses the term petition (e.g.,
Petition for Nonimmigrant Worker), application (e.g., Application
for Naturalization) or request (e.g., Request for Fee Waiver).
Accordingly, ``requestor'' is a synonym for applicant or petitioner.
Immigration benefit request or benefit request is also used even if
USCIS approval of the request does not result in an immigration
benefit, status, visa, or classification, such as requests related
to inadmissibility waivers and the USCIS genealogy program. Using
the term benefit request reduces the ambiguity and confusion
resulting from the repetitive use of application, petition,
applicant, and petitioner, and improves readability without
substantive legal effect. 76 FR 53764, 53767 (Aug. 11, 2011).
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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
conducted a comprehensive fee review for the Fiscal Year (FY) 2022/2023
biennial period, refined its cost accounting process, and determined
that current fees do not recover the full costs of services provided.
DHS determined that adjusting USCIS' fee schedule is necessary to fully
recover costs and maintain adequate service. This final rule also
increases the populations that are exempt from certain fees and
clarifies filing requirements for nonimmigrant workers, requests for
premium processing, and other administrative requirements.
B. Legal Authority
DHS's authority is in several statutory provisions. Section 102 of
the Homeland Security Act of 2002,\3\ 6 U.S.C. 112, and section 103 of
the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. 1103,
charge the Secretary with the administration and enforcement of the
immigration and naturalization laws of the United States. Specific
authority for establishing multiple USCIS fees is found in INA sec.
286, 8 U.S.C. 1356, and more specifically section 286(m), 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 and other immigrants'').\4\
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\3\ Public Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25, 2002).
\4\ The longstanding interpretation of DHS is that the
``including'' clause in INA sec. 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 INA sec. 286(m), 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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C. Changes From the Proposed Rule
As explained more fully in part II.C. of this preamble, DHS is
making several changes in this final rule based on comments received on
the proposed rule or in exercising its authority to establish fees,
provide fee exemptions, allow fee waivers, provide lower fees, or shift
the costs of benefits and services based on adequately funding USCIS,
balancing beneficiary-pays and ability-to-pay principles, burdening
requestors and USCIS, considering humanitarian concerns, and other
policy objectives as supported by data. The changes are as follows:
1. Reduced Costs and Fees
DHS proposed to recover $5,150.7 million in FY 2022/2023 to fulfill
USCIS' operational requirements. See 88 FR 402, 428 (Jan. 4, 2023). In
this final rule, USCIS revises the FY 2022/2023 cost projection to
approximately $4,424.0 million. DHS removes approximately $726.7
million of average annual estimated costs by transferring costs to
premium processing revenue, reducing the work to be funded by the
Asylum Program Fee, and considering the budget effects of improved
efficiency measures.
2. Changes in the Asylum Program Fee
DHS proposed a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant
Transitional Worker, or Form I-140, Immigrant Petition for Alien
Worker. 88 FR 451. In the final rule, DHS exempts the Asylum Program
Fee for nonprofit petitioners and reduces it by half for small
employers. See 8 CFR 106.2(c)(13). The fee will be $0 for nonprofits;
$300 for small employers (defined as firms or individuals having 25 or
fewer FTE
[[Page 6196]]
employees); and $600 for all other filers of Forms I-129 and I-140. See
8 CFR 106.1(f) and 106.2(c)(13).
3. Changes to Employment-Based Immigrant Visa, Fifth Preference (EB-5)
Fees
DHS has updated the USCIS volume forecasts for the EB-5 workload
based on more recent and reliable information than what was available
while drafting the proposed rule. Increasing the fee-paying receipt
forecasts for these workloads conversely increased the estimated
revenue generated by EB-5 fees. DHS also revised the USCIS budget to
reflect these changes.
4. Changes to H-1B Registration Fees
DHS also revises the USCIS volume forecasts for H-1B registration
workload, to 424,400, based on more recent information than was
available while drafting the proposed rule, such as the total
registrations for the FY 2023 cap year. The proposed rule forecasted
273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). This change
increases the estimated revenue generated by the H-1B registration fees
in the final rule.
5. Online Filing Fees
The proposed rule provided lower fees for some online requests
based on estimated costs for online and paper filing. See 88 FR 402,
489-491. The fee differences between paper and online filing ranged
from $10 to $110. Id. This final rule provides a $50 discount for forms
filed online with USCIS. See 8 CFR 106.1(g). The discount is not
applied in limited circumstances, such as when the form fee is already
provided at a substantial discount or USCIS is prohibited by law from
charging a full cost recovery level fee. See, e.g., 8 CFR
106.2(a)(50)(iv).
6. Adjust Fees for Forms Filed by Individuals by Inflation
The proposed rule included a wide range of proposed fees. In this
final rule, (a) DHS holds several fees to the rate of inflation since
the previous fee increase in 2016, and (b) if the proposed fee was less
than the current fee adjusted for inflation, then DHS sets the fee in
this rule at the level proposed. Except for certain employment-based
benefit request fees, if proposed fees were less than the rate of
inflation, then DHS finalizes the proposed fee or a lower fee. A
comparison of current, proposed, and final fees can be found in Table
1.
7. Fee Exemptions and Fee Waivers
The proposed rule included new fee exemptions and proposed to
codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023).
This final rule expands fee exemptions for humanitarian filings. See
section II.C.; 8 CFR 106.3(b). The final rule also codifies the 2011
Fee Waiver Policy \5\ criteria that USCIS may grant a request for fee
waiver if the requestor demonstrates an inability to pay based on
receipt of a means-tested benefit, household income at or below 150
percent of the Federal Poverty Guidelines (FPG), or extreme financial
hardship. See 8 CFR 106.3(a)(1).
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\5\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Policy Memorandum, PM-602-0011.1, ``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'' (Mar. 13, 2011), <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>.
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DHS proposed 8 CFR 106.3(a)(2) to require that a request for a fee
waiver be submitted on the form prescribed by USCIS in accordance with
the instructions on the form. In the final rule, USCIS will maintain
the status quo of accepting either Form I-912, Request for Fee Waiver,
or a written request, and revert to the current effective language at 8
CFR 103.7(c)(2) (Oct. 1, 2020).
DHS also decided to modify the instructions for Form I-912 to
accept evidence of receipt of a means-tested benefit by a household
child as evidence of the parent's inability to pay because the child's
eligibility for these means-tested benefits is dependent on household
income.
8. Procedural Changes To Address Effects of Fee Exemptions and
Discounts
DHS is making five procedural changes in the final rule to address
issues that it has experienced with fee-exempt and low-fee filings.
First, the final rule provides that a duplicate filing that is
materially identical to a pending immigration benefit request will be
rejected. See 8 CFR 103.2(a)(7)(iv). Second, in the final rule DHS
provides that if USCIS accepts a benefit request and determines later
that the request was not accompanied by the correct fee, USCIS may deny
the request. See 8 CFR 103.2(a)(7)(ii)(D)(1). Third, if the benefit
request was approved before USCIS determines the correct fee was not
paid, the approval may be revoked upon notice. Id. Fourth, the first
sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the benefit
request was approved, the approval may be revoked upon notice.'' DHS is
revising the first sentence to read, ``If the benefit request was
approved, the approval may be revoked upon notice, rescinded, or
canceled subject to statutory and regulatory requirements applicable to
the immigration benefit request.'' Reference to applicable statutes and
regulations is also added to the last sentence of section 106.1(c)(2).
Finally, this final rule provides that USCIS may forward an appeal for
which the fee is waived or exempt for adjudication without requiring a
review by the official who made the unfavorable decision. 8 CFR
103.3(a)(2)(ii).
9. Adjustment of Status (Form I-485) and Family-Based Fees
In this final rule, DHS provides that Form I-485, Application to
Register Permanent Residence or Adjust Status, applicants will pay half
of the regular Form I-765, Application for Employment Authorization,
fee when it is filed with a Form I-485 for which the fee is paid if the
adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had
proposed requiring the full fee for Form I-765, and Form I-131,
Application for Travel Document, when filed with Form I-485. See 88 FR
402, 491. DHS is setting the filing fee for a Form I-765 filed
concurrently with Form I-485 after the effective date at $260. See 8
CFR 106.2(a)(44)(i).
The proposed rule also would have ($1,540). See 88 FR 402, 494
(Jan. 4, 2023). In the final rule, DHS provides that, when filing with
parents, children will pay a lesser fee of $950 for Form I-485. See 8
CFR 106.2(a)(20)(ii).
10. Adoption Forms
In the final rule, DHS is providing additional fee exemptions for
adoptive families. See 8 CFR 106.2(a)(32) and (48). Specifically, DHS
will also provide fee exemptions for second extensions, second change
of country requests, and duplicate approval notices for both the orphan
and the Hague process. These would all be requested using Supplement 3
for either the orphan (Form I-600/I-600A) or Hague (Form I-800A)
process. This is in addition to the exemptions that DHS already
provides for the Supplement 3 for first extensions and first change of
country requests. The final rule also provides that Forms N-600,
Application for Certificate of Citizenship, and N-600K, Application for
Citizenship and Issuance of Certificate under Section 322, are fee
exempt for certain adoptees. See 8 CFR 106.2(b)(7)(ii) and (8).
11. Naturalization and Citizenship Fees
This final rule expands eligibility for paying half of the regular
fee for Form N-400, Application for Naturalization. An applicant with
household income at or below 400 percent of Federal Poverty Guidelines
(FPG) may pay half price for
[[Page 6197]]
their Application for Naturalization. See 8 CFR 106.2(b)(3)(ii).
12. Additional Changes
In the final rule:
<bullet> DHS deletes proposed 8 CFR 106.3(a)(5), ``Fees under the
Freedom of Information Act (FOIA),'' because it is unnecessary. DHS
FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under
FOIA, 5 U.S.C. 552(a)(4)(A)(iii).
<bullet> Removes the fee exemption for Form I-601, Application for
Waiver of Grounds of Inadmissibility, for applicants seeking
cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2),
since they cannot use a waiver of inadmissibility to establish
eligibility for this type of relief from removal. Matter of Y-N-P-, 26
I&N Dec. 10 (BIA 2012); cf. proposed 8 CFR 106.3(b)(8)(i).
<bullet> Provides a 30-day advance public notification requirement
before a payment method will be changed. 8 CFR 106.1(b).
<bullet> Provides that an inflation only rule must adjust all USCIS
fees that DHS has the authority to adjust under the INA (those not
fixed by statute).
D. Summary of Final Fees
The fees established in this rule are summarized in the Final
Fee(s) column in Table 1. Table 1 compares the current fees to the fees
established in this rule. In addition, the new fees and exemptions are
incorporated into the Form G-1055, Fee Schedule, as part of the docket
for this rulemaking.
The Current Fee(s) column in Table 1 represents the current fees in
effect rather than the enjoined fees from the 2020 fee rule.\6\
Throughout this final rule, the phrase ``current fees'' refers to the
fees in effect and not the enjoined fees.
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\6\ 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 U.S.
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, 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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In some cases, the current or final fees 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. In this final rule, 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 Final Fees(s) column does not include an additional
biometric services fee in most cases.
Some other benefit requests are listed several times because in
some cases DHS proposes distinct fees based on filing methods, online
or paper. DHS will require fees for Form I-131, Application for Travel
Document, and Form I-765, Application for Employment Authorization,
when filed with Form I-485, Application to Register Permanent Residence
or Adjust Status, in most cases. As such, Table 1 includes rows that
compare the current fee for Form I-485 to various combinations of the
final fees for Forms I-485, I-131, and I-765.
The table excludes statutory fees that DHS cannot adjust or can
only adjust for inflation. Instead, the table focuses on the IEFA non-
premium fees that DHS is changing in this rule.
BILLING CODE 9111-97-P
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BILLING CODE 9111-97-C
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E. Summary of Costs and Benefits
The fee adjustments, as well as changes to the forms and fee
structures used by USCIS, will result in net costs, benefits, and
transfer payments. For the 10-year period of analysis of the rule (FY
2024 through FY 2033), DHS estimates the annualized net costs to the
public will be $157,005,952 discounted at 3 and 7 percent. Estimated
total net costs over 10 years will be $1,339,292,617 discounted at 3-
percent and $1,102,744,106 discounted at 7-percent.
The changes in the final rule will 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 reduced fee
processing errors, increased efficiency in the adjudicative process,
the simplification of the fee payment process for some forms,
elimination of the $30 returned check fee, and for many applicants,
limited fee increases and additional fee exemptions to reduce fee
burdens.
Fee increases will result in annualized transfer payments from
applicants/petitioners to USCIS of approximately $887,571,832
discounted at 3 and 7 percent. The total 10-year transfer payments from
applicants/petitioners to USCIS will be $7,571,167,759 at a 3-percent
discount rate and $6,233,933,135 at a 7-percent discount rate.
Reduced fees and expanded fee exemptions will result in annualized
transfer payments from USCIS to applicants/petitioners of approximately
$241,346,879 discounted at both 3-percent and 7-percent. The total 10-
year transfer payments from USCIS to applicants/petitioners will be
$2,058,737,832 at a 3-percent discount rate and $1,695,119,484 at a 7-
percent discount rate. The annualized transfer payments from the
Department of Defense (DOD) to USCIS for Form N-400 filed by military
members will be approximately $197,260 at both 3- and 7-percent
discount rates. The total 10-year transfer payments from DOD to USCIS
will be $1,682,668 at a 3-percent discount rate and $1,385,472 at a 7-
percent discount rate.
Adding annualized transfer payments from fee paying applicants/
petitioners to USCIS ($887,571,832) and transfer payments from DoD to
USCIS ($197,260), then subtracting transfer payments from USCIS to
applicants/petitioners ($241,346,879) yields estimated net transfer
payments to USCIS of $646,422,213 at both 3 and 7-percent discount
rates, an approximation of additional annual revenue to USCIS from this
rule.
F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking
DHS acknowledges the broad effects of the Coronavirus Disease
(COVID-19) international pandemic on the United States broadly and the
populations affected by this rule. Multiple commenters on the proposed
rule wrote that increasing USCIS fees at this time would exacerbate the
negative economic impacts that the United States has experienced from
the COVID-19 pandemic.
DHS realizes the effects of COVID-19, and USCIS, specifically, is
still dealing with the effects of COVID-19 on its workforce and
processing backlog. COVID-19 affected the demand for immigration
benefits and USCIS services, and, as all employers did, USCIS was
required to adjust its workplaces to mitigate the impacts of the
disease. DHS has procedures in place to deal with emergency situations
as they arise but is no longer providing special accommodations
associated with the pandemic.\15\ USCIS considered the effects of
COVID-19 on its workload volumes, revenue, or costs, along with all
available data, when it conducted its fee review. DHS will also
consider these effects in future fee rules. However, no changes were
made in the fees and regulations codified in this final rule to address
the effects of COVID-19. Further, Census data indicates that impacts of
COVID-19 showed a dip in estimated sales, revenue, and value of
shipments in 2020 followed by a recovery through the fourth quarter of
2021.\16\ CDC ended the public health emergency due to the COVID-19
pandemic on May 11, 2023.\17\ Although there may be some lingering
economic impacts from COVID-19, DHS does not believe these would have
an impact on the number of filings by requestors. DHS notes that for
certain forms and categories fee waivers may be available for people
with financial hardship. See 8 CFR 106.3(a); Table 4B.
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\15\ See USCIS, Immigration Relief in Emergencies or Unforeseen
Circumstances available at <a href="https://www.uscis.gov/newsroom/immigration-relief-in-emergencies-or-unforeseen-circumstances">https://www.uscis.gov/newsroom/immigration-relief-in-emergencies-or-unforeseen-circumstances</a> (last
reviewed/updated Aug. 16, 2023); USCIS, USCIS Announces End of
COVID-Related Flexibilities available at <a href="https://www.uscis.gov/newsroom/alerts/uscis-announces-end-of-covid-related-flexibilities">https://www.uscis.gov/newsroom/alerts/uscis-announces-end-of-covid-related-flexibilities</a>
(last reviewed/updated Mar. 23, 2023).
\16\ See <a href="https://www.regulations.gov/comment/USCIS-2021-0010-0706">https://www.regulations.gov/comment/USCIS-2021-0010-0706</a> and <a href="https://www.regulations.gov/comment/USCIS-2021-0010-4141">https://www.regulations.gov/comment/USCIS-2021-0010-4141</a>.
\17\ See CDC, COVID-19 End of Public Health Emergency, available
at <a href="https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html">https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html</a> (last updated May 5, 2023).
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II. Background
A. History
On January 4, 2023, DHS published a proposed rule in the Federal
Register (docket USCIS-2021-0010) at 88 FR 402. DHS published a
correction on January 9, 2023, at 88 FR 1172.\18\ On February 24, 2023,
DHS extended the comment period an additional 5 days, to March 13,
2023, for a total comment period of 68 days. See 88 FR 11825. USCIS
also held a public engagement event on January 11, 2023, and a software
demonstration on March 1, 2023, to provide additional avenues for the
interested public to hear about and provide feedback on the proposed
fee rule.\19\ In this final rule, DHS will refer to the initial
proposed rule, correction, and extension collectively as the proposed
rule.
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\18\ The document corrected two typographical errors in Table 1
of the proposed rule.
\19\ <a href="https://www.regulations.gov/comment/USCIS-2021-0010-0706">https://www.regulations.gov/comment/USCIS-2021-0010-0706</a>
and <a href="https://www.regulations.gov/comment/USCIS-2021-0010-4141">https://www.regulations.gov/comment/USCIS-2021-0010-4141</a>.
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B. Authority and Guidance
DHS publishes this final 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 also issues this final rule consistent with
the Chief Financial Officer Act, 31 U.S.C. 901-03903 (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).
This final rule is also consistent with non-statutory guidance on
fees, the budget process, and Federal accounting principles.\20\ DHS
uses Office of
[[Page 6206]]
Management and Budget (OMB) Circular A-25 as general policy guidance
for determining user fees for immigration benefit requests, with
exceptions as outlined in this section. 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.\21\
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\20\ See 58 FR 38142 (July 15, 1993) (revising Federal policy
guidance regarding fees assessed by Federal agencies for Government
services); 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); 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).
\21\ OMB Circulars A-25 and A-11 provide nonbinding internal
executive branch direction for the development of fee schedules
under 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 final rule accounts for, and is consistent with,
congressional appropriations for specific USCIS programs. In the
proposed rule, DHS outlined the effects of appropriations for FY 2021
and FY 2022.\22\ As explained in the proposed rule, Congress provided
USCIS additional appropriations for very specific purposes in FY
2022.\23\ Shortly before publication of the proposed rule, Congress
passed a full year appropriation bill for FY 2023. Together, the total
FY 2023 appropriations for USCIS were approximately $268.0 million.
Congress appropriated USCIS approximately $243.0 million for E-Verify
and refugee processing in FY 2023.\24\ Approximately $133.4 million of
the $243.0 million was for refugee processing, and the remainder was
for E-Verify. In addition, Congress appropriated $25 million for the
Citizenship and Integration Grant Program, which is available until
September 30, 2024, the end of FY 2024. Id. This means that USCIS
received $5 million more than in FY 2022, and it has 2 years to spend
the full $25 million. Because USCIS anticipated appropriated funds for
citizenship grants in both FY 2022 and FY 2023, the $20 million in FY
2022 and the $25 million in FY 2023 for citizenship grants are not part
of the FY 2022/2023 IEFA fee review budget. For several years, USCIS
had the authority to spend no more than $10 million for citizenship
grants.\25\ Until recently, grant program funding came from the IEFA
fee revenue or a mix of appropriations and fee revenue.\26\ If USCIS
does not receive appropriations for citizenship grants for FY 2024,
then it could use any remaining amount from the $25 million
appropriation in the Consolidated Appropriations Act, 2023.
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\22\ See 88 FR 402, 415-417 (Jan. 4, 2023); see also
Consolidated Appropriations Act, 2021 (Dec. 27, 2020), Public Law
116-260, at div. F, tit. IV; Consolidated Appropriations Act, 2022,
Public Law 117-103 (Mar. 15, 2022) (``Pub. L. 117-103'') at div. F.
tit. 4; 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.
\23\ See 88 FR 402, 415-416 (Jan. 4, 2023); see also Public Law
117-103.
\24\ See Consolidated Appropriations Act, 2023, Public Law 117-
328, div. F, tit. IV (Dec. 29, 2022).
\25\ Congress provided $10 million for citizenship and
integration grants in FY 2019 (Pub. L. 116-6), FY 2020 (Pub. L. 116-
93), and FY 2021 (Pub. L. 116-260).
\26\ 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.
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In these cases, appropriation laws for FY 2022 and FY 2023 provide
that the funds are only to be used for the specified purposes, and DHS
is not required to reduce any current IEFA fee.\27\ As explained in the
proposed rule, these appropriations do not overlap with the fee review
budget, which will fund immigration adjudication and naturalization
services for future incoming receipts. USCIS cannot and does not
presume congressional 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 a program, either the program cannot continue or USCIS
will be forced to reallocate resources assigned to another part of the
agency for this purpose. As such, DHS makes no changes to the final
rule based on the appropriations for FY 2022 and FY 2023.
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\27\ 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)).''
Similar wording is in Public Law 117-328 in div F. tit. IV. USCIS
has a long history of funding citizenship and integration grants
from IEFA revenue, appropriations, or a mix of both.
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C. Changes From the Proposed Rule
This final rule adopts, with appropriate changes, the regulatory
text in the proposed rule published in the Federal Register on January
4, 2023. See U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements;
Proposed rule, 88 FR 402. DHS is making several changes in this final
rule based on comments received on the proposed rule or as required by
the effects of those changes. As explained throughout this preamble,
DHS exercises its discretionary authority to establish fees, provide
fee exemptions, allow fee waivers, provide lower fees, or shift the
costs of benefits and services based on numerous factors, including
adequately funding USCIS operations, balancing beneficiary-pays and
ability-to-pay principles, burdening requestors and USCIS, considering
humanitarian concerns, and other policy objectives as supported by
data. This final rule also relies on the justifications articulated in
the proposed rule, except as modified and explained throughout this
rule in response to public comments, intervening developments, and new
information. As stated in the proposed rule, DHS is not repeating the
amendatory instructions and regulatory text for ministerial,
procedural, or otherwise non-substantive changes adopted from the 2020
fee rule. 88 FR 421. A description of each change is as follows:
1. Reduced Costs and Fees
DHS has revised the USCIS budget underlying the final rule. In the
proposed rule, USCIS projected 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. See 88 FR 402, 428 (Jan. 4, 2023). In
this final rule, USCIS revises the FY 2022/2023 cost projection to
approximately $4,424.0 million, a $726.7 million or 14.1 percent
decrease compared to the proposed rule. See Table 2 of this preamble.
[[Page 6207]]
[GRAPHIC] [TIFF OMITTED] TR31JA24.007
DHS is authorized by INA section 286(m), 8 U.S.C. 1356(m), to set
USCIS fees at a level to recover ``the full costs'' of providing
``all'' ``adjudication and naturalization services,'' and ``the
administration of the fees collected.'' This necessarily includes
support costs, and USCIS' current budget forecasts a deficit based on
fully funding all of its operations. DHS must make up that difference
either by cutting costs, curtailing operations, or increasing revenue.
DHS 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. This increase
in funding ensures that USCIS can meet its operational needs during the
biennial period.
[GRAPHIC] [TIFF OMITTED] TR31JA24.008
Reducing the budget allows DHS to finalize some fees that are lower
than in the proposed rule and offer additional fee exemptions in
response to public comments requesting lower fees. In this final rule,
DHS removes approximately $726.7 million of average annual estimated
costs by making the following changes:
<bullet> Transferring costs to Premium Processing revenue;
<bullet> Reducing the estimated marginal costs of the Procedures
for Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers Interim Final
Rule to be funded; \28\ and
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\28\ 87 FR 18078 (Mar. 29, 2022).
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<bullet> Including efficiency estimates based on improved
efficiency measures.
DHS revises the estimated cost and revenue differential to $1,141.5
million in this final rule. See Table 3 of this preamble. DHS issues
this final rule to adjust USCIS' fee schedule to recover the full cost
of providing immigration adjudication and naturalization services.
a. Transferring Costs to Premium Processing Revenue
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, 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. This was done
because the INA, as amended by the District of Columbia Appropriations
Act of 2001 provided that premium processing revenue shall be used to
fund the cost of offering premium service, as well as the cost of
infrastructure improvements in adjudications and customer service
processes. See 87 FR 1832. In the proposed rule at 88 FR 420, USCIS
outlined its planned uses of premium processing revenue to provide
premium processing service, improve information technology
infrastructure, and reduce backlogs. Therefore, revenue from premium
processing, the costs for USCIS to provide premium processing service,
the costs to improve information technology infrastructure, and the
costs directed at reducing the backlog were not considered in the
proposed fees.
On October 1, 2020, the Continuing Appropriations Act, which
included the USCIS Stabilization Act, was signed into law, codifying
new section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A). Among
other things, the USCIS Stabilization Act established new premium
processing fees and expanded the permissible uses of revenue from the
collection of premium processing fees, including improvements to
adjudication process infrastructure, responses to adjudication demands,
and to otherwise offset the cost of providing adjudication and
naturalization services. Then, on March 30, 2022, DHS published a final
rule, Implementation of the Emergency Stopgap USCIS Stabilization Act,
[[Page 6208]]
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).
On December 28, 2023, DHS published a final rule, Adjustment to
Premium Processing Fees, effective February 26, 2024, that increased
premium processing fees charged by USCIS to reflect the amount of
inflation from June 2021 through June 2023 according to the Consumer
Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28,
2023). The adjustment increases premium processing fees from $1,500 to
$1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4.
The proposed rule did not include changes directly resulting from
the USCIS Stabilization Act or premium processing rule, as DHS was
still in the early stages of implementation. It stated that DHS would
consider including premium processing revenue and costs in the final
rule., as appropriate, as DHS would have more information about the
revenue collected from premium processing services by the time DHS
publishes a final rule. See 88 FR 402, 419 (Jan. 4, 2023). As a result
of additional information gathered over the passage of time since the
proposed rule and the December 28, 2023 Adjustment to Premium
Processing Fees final rule, 88 FR 89539, in this final rule, DHS has
transferred $129.8 million in costs to premium processing to account
for future premium processing revenue projections.
b. Reducing the Work To Be Funded by the Asylum Program Fee.
DHS proposed 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. 88 FR 451.
DHS has begun implementation of the Procedures for Credible Fear
Screening and Consideration of Asylum, Withholding of Removal, and CAT
Protection Claims by Asylum Officers (Asylum Processing IFR) (87 FR
18078 Mar. 29, 2022) rulemaking, but full implementation of the IFR is
delayed while DHS resolves litigation around the Circumvention of
Lawful Pathways rule. See 88 FR 31314 (May 16, 2023). Therefore, DHS
needs to generate less revenue from the Asylum Program Fee than we
estimated was needed in the proposed rule. Accordingly, we have
provided a lower fee in this final rule for certain small employers and
nonprofits in response to comments requesting lower fees for these
groups. Businesses with 25 or fewer full-time equivalent employees will
pay a $300 Asylum Program Fee instead of $600, and half of the full fee
for Form I-129. Nonprofits will pay $0. How DHS determined which
businesses would receive such relief from the full fee is discussed
later in this section. DHS estimates the revised Asylum Program Fee
will generate approximately $313 million in revenue, compared to the
$425 million that was estimated in the proposed rule from charging $600
with no exemptions or discounts.
DHS recognizes that reducing the USCIS budget due to the lower
projected revenue from the Asylum Program Fee risks a revenue shortfall
if the Asylum Processing IFR is fully implemented and the associated
costs incurred. However, DHS's Asylum Processing IFR workload is
somewhat flexible because DOJ can share some--though not all--of the
workload. On the other hand, if the Asylum Processing IFR is not fully
implemented, USCIS still has a significant need for the revenue.
Although the amount of the fee was based on the costs of the Asylum
Processing IFR, it was proposed ``. . . to fund part of the costs of
administering the entire asylum program . . .'' 88 FR 849. USCIS Asylum
Division expense estimates are over $400 million a year before adding
the costs of the Asylum Processing IFR, and USCIS is regularly adding
new asylum offices and capabilities. Thus, DHS projects that the total
costs of the asylum program will exceed the revenue from the new fee
even before any new capacity is added to implement the Asylum
Processing IFR.
Further, DHS notes that USCIS cannot direct the revenue from the
Asylum Program Fee precisely to the marginal costs that result from the
implementation of the Asylum Processing IFR, as the Asylum Program Fee,
like other fees, will be deposited into the general IEFA and not an
account specific to the IFR or to the asylum program. In addition, if
Asylum Division expenses are greatly reduced or funded by a
Congressional appropriation, and USCIS determines the Asylum Program
Fee is not needed, USCIS can pause collection of the Asylum Program Fee
using the authority in 8 CFR 106.3(c). The costs for administering the
asylum program not funded by the revenue collected from the Asylum
Program Fee will continue to be funded by other fees.
c. Including Processing Efficiency Estimates Based on Improved
Efficiency Measures
USCIS is making progress reducing backlogs and processing times.
For example, USCIS committed to new cycle time goals in March 2022.\29\
These goals are internal metrics that guide the backlog reduction
efforts of the USCIS workforce and affect how long it takes the agency
to process cases. As cycle times improve, processing times will follow,
and requestors will receive decisions on their cases more quickly.
USCIS has continued to increase capacity, improve technology, and
expand staffing to achieve these goals.
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\29\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``USCIS Announces New Actions to Reduce Backlogs, Expand
Premium Processing, and Provide Relief to Work Permit Holders''
(Mar. 29, 2022), <a href="https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work">https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work</a>.
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2. Changes in the Asylum Program Fee
DHS proposed a new Asylum Program Fee of $600 to be paid by
employers who file either a Form I-129, Petition for a Nonimmigrant
Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant
Transitional Worker, or Form I-140, Immigrant Petition for Alien
Worker. See 88 FR 402, 451 (Jan. 4, 2023). As explained in the proposed
rule, DHS 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. See 88 FR 402, 451-454 (Jan. 4, 2023).
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, Form I-129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker, and Form I-140, Immigrant Petition
for Alien Worker, to collect the Asylum Processing IFR estimated annual
costs. Id. The Asylum Program Fee adds a fee, only for Form I-129, I-
129CW, and Form I-140 petitioners, in order to maintain lower fees for
other immigration benefit requestors than if these asylum costs were
spread among all other fee payers. The proposed rule provided examples
of alternative Form I-485, Application to Register Permanent Residence
or Adjust Status, and I-765, Application for Employment Authorization,
proposed fees if those applications were burdened with the Asylum
Processing IFR estimated annual costs. Id at 452. The proposed fees for
Forms I-485, I-765, and others were lower with the shift of asylum
program costs to employers through the new fee. If Forms I-129, I-
129CW, and I-140 recover more of those
[[Page 6209]]
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
recovered more than full cost in the proposed rule. DHS stands by this
approach to lower fees for other immigration benefit requestors less
able to pay by limiting the Asylum Program Fee to Forms I-129, I-129CW,
and I-140.
DHS summarizes and responds to the comments on the Asylum Program
Fee in more detail in section IV.G.2.a. of this preamble. After
considering public comments, in the final rule, DHS exercises its
discretionary authority to establish fees, balancing the beneficiary-
pays and ability-to-pay principles, and to address the negative effects
that commenters stated would result, by exempting the Asylum Program
Fee for nonprofit petitioners and reducing it by half for small
employers. See 8 CFR 106.2(c)(13).\30\ The fee will be $0 for
nonprofits; $300 for small employers (defined as firms or individuals
having 25 or fewer FTE employees); and $600 for all other filers of
Forms I-129, I-129CW, and I-140. See 8 CFR 106.1(f) and 106.2(c)(13).
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\30\ DHS recognizes that many small employers and nonprofits
submit USCIS Form I-907, Request for Premium Processing, with their
Form I-129. Because premium processing is an optional request for
faster processing and not required to obtain an immigration benefit,
DHS makes no changes to premium processing fees for those groups.
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3. Defining Small Employer
DHS did not propose to provide any fee exemptions or discounts
based on employer size. Many commenters, however, wrote that the
proposed new fees for employment-based immigration benefit requests
could make it difficult for small companies to pay the fees or it may
hinder their ability to hire the workers they need. Balancing the need
to shift the costs of services, adequately fund USCIS operations, and
balance the beneficiary-pays and ability-to-pay principles, DHS
determined that a discount based on the size of the business is
consistent with the ability-to-pay principle that was articulated in
the proposed rule. See 88 FR 402,424-26 (Jan. 4, 2023).
The final rule defines ``small employer'' as having 25 or fewer
full-time equivalent (FTE). See 8 CFR 106.1(f). When determining which
employers should be considered small, DHS considered what definition
could be administered to provide the relief requested by commenters
without adding costs to USCIS, additional burden to petitioners, or
causing delays in intake and processing of the submitted requests. The
volume of forms submitted to USCIS requires that benefit request intake
be automated to the extent possible, including the analysis of whether
the correct fee has been paid based on if the petitioner meets the
criteria for the fee they have submitted with their request. DHS also
considered other exemptions provided for the same or similar forms and
how the term ``small employer'' is defined in other contexts. DHS
reviewed INA section 214(c)(9)(B), 8 U.S.C. 1184(c)(9)(B), which
provides that the ACWIA fee is reduced by half for any employer with
not more than 25 FTE employees who are employed in the United States
(determined by including any affiliate or subsidiary of such employer).
Because the ACWIA fee and the Asylum Program fee are both applied to
the Form I-129, DHS decided that using a consistent definition was
preferable. DHS also determined that defining small employer as 25 or
fewer full time equivalent employees was appropriate because: (1) it is
consistent with what Congress has provided in statute that it considers
small with regard to the applicability of certain fees for employment-
based petitions submitted to USCIS; (2) DHS has a long history of
administering the ACWIA fee, and (3) determining if the petitioner is
eligible for the fee discount requires minimal additional evidence.\31\
This definition will be applied to the fee discount and exemption for
the Asylum Program Fee and the discount for the Form I-129 fee
(discussed later in this section).
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\31\ As noted in the Paperwork Burden Act section of this final
rule, and in the final form instructions for Forms I-129 and 140
provided in the docket, DHS will require that petitioners submit the
first page of their most recent IRS Form 941, Employer's QUARTERLY
Federal Tax Return. We will determine at intake if the petitioner
has submitted the lower fee or no fee based on the number indicated
in Part 1, question 1, Number of employees who received wages, tips,
or other compensation for the pay period.
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4. Defining Nonprofit
DHS did not propose any relief from any fee in the proposed rule
for nonprofit entities. Many commenters, however, wrote that the
proposed new fees for nonprofits could make it difficult for the
nonprofits to pay the fees or it may hinder their ability to hire the
workers they need. DHS agrees that the type of organizations that
qualify as a nonprofit generally provide a service to the public.\32\
Nonprofit organizations may include religious, educational, or
charitable organizations and may not be required to pay federal
taxes.\33\ DHS understands that organizations that do not pursue
monetary gain or profit must use funds for USCIS fees that they would
otherwise use in pursuit of public and private service. Therefore,
balancing the need to shift the costs of services, adequately funding
USCIS operations, and the beneficiary-pays and ability-to-pay
principles, DHS determined that a discount for nonprofits is consistent
with the ability-to-pay principle that was articulated in the proposed
rule. See 88 FR 402,424-26 (Jan. 4, 2023). DHS acknowledges that
allowing this discount for certain large non-profits, such as
universities and hospitals, may seem inconsistent with the ability-to-
pay principle. However, DHS notes that this treatment is consistent
with their tax-exempt status and believes that the public service
performed by these entities further justifies the fee discount.
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\32\ See U.S. Department of the Treasury, U.S. Internal Revenue
Service, Exempt Organization Types, <a href="https://www.irs.gov/charities-non-profits/exempt-organization-types">https://www.irs.gov/charities-non-profits/exempt-organization-types</a> (Page Last Reviewed or
Updated: 05-Dec-2023).
\33\ Nonprofits may be required to pay certain other taxes. See,
U.S. Department of the Treasury, U.S. Internal Revenue Service,
Federal Tax Obligations of Non-Profit Corporations at <a href="https://www.irs.gov/charities-non-profits/federal-tax-obligations-of-non-profit-corporations">https://www.irs.gov/charities-non-profits/federal-tax-obligations-of-non-profit-corporations</a>. (Page Last Reviewed or Updated: 05-Dec-2023).
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DHS determined that the most appropriate definition for nonprofit
is the definition in the Internal Revenue Code (IRC), specifically 26
U.S.C. 501(c)(3) (2023). 8 CFR 106.1(f)(2). As with the definition of
small employer, DHS considered costs to USCIS, burden on petitioners,
and intake and processing requirements. DHS also considered how the
term nonprofit is defined in other contexts. Commenters that requested
relief for nonprofits did not suggest an alternative definition for
nonprofit than that used for Federal income tax purposes or as provided
for the ACWIA fee reduction in 8 CFR 214.2(h)(19)(iv). The INA provides
for a reduced ACWIA fee if a petitioner is ``a primary or secondary
education institution, an institution of higher education, as defined
in section 1001(a) of title 20, a nonprofit entity related to or
affiliated with any such institution, a nonprofit entity which engages
in established curriculum-related clinical training of students
registered at any such institution, a nonprofit research organization,
or a governmental research organization.'' INA section 214(c)(9)(A), 8
U.S.C. 1184(c)(9)(A). The INA does not define ``nonprofit'' in terms of
the IRC and the definitions of ``institution of higher education'' and
``government research organization'' in 8 CFR 214.2(h)(19)(iv)(B) are
not tied to the IRC.
For ease of administration, DHS will not require that the
petitioner nonprofit
[[Page 6210]]
status be limited to research or educational purposes, as in 8 CFR
214.2(h)(19)(iv)(B). DHS has decided that eligibility for fee
reductions and fee exemptions for nonprofits provided in this final
rule will be limited to nonprofit organizations approved by the
Internal Revenue Service as a nonprofit entity under section 501(c)(3)
of the IRC or as a government research organization, and that USCIS
will not impose the burden on petitioners of demonstrating an
educational or research purpose. This approach will ensure that the
primary types of organizations eligible for the ACWIA fee reduction in
the INA--educational institutions, nonprofit research organizations,
and governmental research organizations--will also be eligible for the
fee reductions and exemptions under this rule, as will other nonprofit
entities with a charitable purpose under section 501(c)(3).
DHS considered including but will not include entities organized
under 501(c)(4) and 501(c)(6) of the IRC in the definition of nonprofit
in this rule. Tax-exempt organizations under section 501(c)(4) include
social welfare organizations and local associations of employees, while
tax-exempt organizations under 501(c)(6) include business leagues,
chambers of commerce, real estate boards, boards of trade, and
professional football leagues. See 26 U.S.C. 501(c)(4) & (6). Both
types of entities, unlike public charities under 501(c)(3), may engage
in lobbying activities. Although 8 CFR 214.2(h)(19)(iv)(A) includes
nonprofit or tax-exempt organizations under 501(c)(3), 501(c)(4), and
501(c)(6) for purposes of the ACWIA fee reduction, this eligibility is
further cabined by 8 CFR 214.2(h)(19)(iv)(B), requiring that such
entities have been ``approved as a tax-exempt organization for research
or educational purposes by the Internal Revenue Service'' (emphasis
added). As a practical matter, DHS experience indicates that few
501(c)(4) or 501(c)(6) entities are likely to be organized for research
or educational purposes and meet the definition of ``affiliated or
related nonprofit entity'' under 8 CFR 214.2(h)(19)(iii), which
requires a close tie to an institution of higher education. Therefore,
DHS has determined that in defining eligibility for nonprofit fee
reductions and exemptions under this rule, it is appropriate to include
501(c)(3) entities while excluding 501(c)(4) and 501(c)(6) entities.
This definition will be applied to the fee discount and exemption for
the Asylum Program Fee and the discount for the Form I-129 fee
(discussed later in this section).
5. Changes to EB-5 Volume Forecasts
DHS has updated the USCIS volume forecasts for the EB-5 workload
based on more recent and reliable information than what was available
while drafting the proposed rule. Increasing the fee-paying receipt
forecasts for these workloads conversely increased the estimated
revenue generated by EB-5 fees. DHS also revised the USCIS budget to
reflect these changes.
For the proposed rule, DHS estimated the EB-5 workload based on
statistical modeling, immigration receipt data, and internal
assessments, like other workload forecasts. 88 FR 402, 432-438. The
proposed rule discussed that EB-5 receipts decreased from FY 2016 to FY
2020. 88 FR 402, 509-510. At the time of the proposed rule, DHS had
very limited information upon which to base estimates of the new
workload required by the EB-5 Reform and Integrity Act of 2022. See id.
at 557. In this final rule, DHS updated the EB-5 workload estimates to
account for the effect of the EB-5 Reform and Integrity Act of 2022.
USCIS believes these estimates better represent the EB-5 filing
receipts it can expect. Increasing the volume forecasts for EB-5 also
increases the amount of revenue generated by the EB-5 workload for the
final rule budget. As explained elsewhere, DHS has revised the USCIS
budget to accommodate the revenue generated by the fees and volumes in
this final rule. Increasing the fee-paying receipt forecasts for these
workloads increases the estimated revenue generated by the EB-5 fees in
the final rule. 88 FR 72870.
[[Page 6211]]
[GRAPHIC] [TIFF OMITTED] TR31JA24.009
6. Changes to H-1B Registration Fee Volume Forecasts
DHS also revises the USCIS volume forecasts for H-1B registration
workload, to 424,400, based on more recent information than was
available while drafting the proposed rule, such as the total
registrations for the FY 2023 cap year. The proposed rule forecasted
273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast
for the proposed rule is close to the 274,237 total registrations in
the FY 2021 cap year.\34\ However, after the proposed rule was
published, a total of 780,884 petitioners registered for an FY 2024
cap-subject H-1B employee. This final rule forecast of 424,400, based
on more recent data, is closer to the total registrations for the FY
2023 cap year. Increasing the fee-paying receipt forecasts for these
workloads increases the estimated revenue generated by the H-1B
registration fees in the final rule. 88 FR 72870.
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\34\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, H-1B Electronic Registration Process, <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a>.
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7. Online Filing Fees
The proposed rule provided lower fees for some online requests
based on estimated costs for online and paper filing. 88 FR 402, 489-
491. The fee differences between paper and online filing ranged from
$10 to $110. Id. This final rule provides a $50 discount for forms
filed online with USCIS. 8 CFR 106.1(g). The discount is not applied in
limited circumstances, such as when the form fee is already provided at
a substantial discount or USCIS is prohibited by law from charging a
full cost recovery level fee. See, e.g., 8 CFR 106.2(a)(50)(iv).
As described in the proposed rule and supporting documentation, the
cost savings USCIS experiences from online filing differs from form to
form depending on many factors. Many commenters wrote that USIS was
penalizing those who still filed on paper by making paper filing more
expensive. The commenters misunderstand the policy goal of the online
discount because DHS is not increasing the fee for paper filings by
shifting costs for online filing to the fee for paper requests as a
form of penalty or deterrent. If the online discount was not provided,
paper form fees would not decrease accordingly. DHS wants to
incentivize online filing, but we proposed fees based on the costs
savings calculated in the ABC model.
In response to comments, DHS reevaluated the difference between
online and paper fees. In the proposed rule, the proposed fee
differences ranged from $0 to $110. In this final rule, DHS again has
determined that online filing provides costs savings to USCIS and
requestors, increases flexibility and efficiency in adjudications, and
those benefits should be reflected in lower fees. However, in the final
rule DHS takes the expected savings from online filing and divides it
among all online filed forms by establishing that the fees for online
filing will be $50 less than for the same request filed on paper.\35\
Furthermore, DHS believes that the $50 reduced cost can be reasonably
anticipated to be consistent for future USCIS online filing
capabilities and has decided to provide that online filing fees will be
$50 less than the paper filing fee as additional forms are made
available for online filing, unless otherwise noted. See 8 CFR
106.1(g). DHS emphasizes it establishes the $50 difference because
[[Page 6212]]
USCIS experiences moderately reduced costs from online filing.
Additionally, applying a uniform $50 reduced cost for online filing to
all forms will make the reduced fee easier for USCIS to administer and
be less confusing to the public when calculating the fee. Although DHS
believes that it should encourage online filing as a matter of sound
policy, contrary to the suggestions of some commenters, DHS is not
increasing the fee for paper filings by shifting costs for online
filing to the fee for paper requests as a form of penalty or deterrent.
For applicants who experience a lack of access to computers or the
internet, paper filing will generally remain an option.\36\
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\35\ DHS applies this discount to USCIS online filings only and
does not apply this provision to fees set in this rule for
immigration benefit requests that are submitted to either USCIS or
CBP when the request is submitted to and fee collected by CBP
online. See, e.g., 8 CFR 106.2(a)(13)--(15).
\36\ USCIS Form I-134A, Online Request to be a Supporter and
Declaration of Financial Support, must be filed online, but no fee
is required. See, <a href="https://www.uscis.gov/i-134a">https://www.uscis.gov/i-134a</a>, last Reviewed/
Updated: 08/11/2023.
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8. Adjust Fees for Forms Filed by Individuals by Inflation
The proposed rule included a wide range of proposed fees.
Consistent with past fee rules, DHS used its discretion to limit some
proposed fee increases that would be overly burdensome on applicants,
petitioners, and requestors if set at ABC model output levels. 88 FR
402, 450-451. The proposed rule also included a provision to adjust
fees by inflation in the future. 88 FR 402, 516.
DHS received many comments about the method that USCIS used to
calculate how its costs should be dispersed among the requests for
which fees are charged. Some commenters wrote that DHS should limit the
increase in USCIS fees by the amount of inflation. DHS analyzed the
suggestion and determined that from December 2016 (the month FY 2016/
2017 fee rule went into effect) to June 2023,\37\ the CPI-U increased
by 26.37 percent.\38\ Using the CPI-U as the measure for cost and fee
increases is consistent with statutes that authorize DHS to adjust
USCIS fees. See, e.g. section 286(u)(3)(C) of the INA, 8 U.S.C.
1356(u)(3)(C) (providing that DHS may adjust the premium fees based on
the change in the CPI-U). DHS then calculated what the fees would be if
adjusted by 26.37 percent, rounded to the nearest $5 increment,
consistent with other fees (and reducing online filing fees by $50 as
explained earlier). After considering the amount of the increase, as
well as the impacts of the applicable fees on individual filers, DHS
determined (1) that the additional revenue that would be generated by
increasing the subject forms by inflation would be appropriate for
expected revenue from those requests in the final rule, (2) increasing
the fees by only inflation as suggested in public comments balanced the
need to recover increased USCIS costs with the impacts of the fees on
individuals and families, and (3) to the extent that an inflation
adjustment did not recover the relative costs of the applicable
requests, either other fees could be increased to make up the
unrecovered costs using the ability to pay principle or USCIS could
reduce its budget. In the final rule, except for certain employment-
based benefit request fees, DHS finalized the fees at either the
proposed fee level or the current fee adjusted for inflation, whichever
was lower. A comparison of current, proposed, and final fees can be
found in Table 1.
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\37\ DHS used June 2023 as the end date for the period of
inflation to be consistent with the 2023 premium processing fee
inflation adjustments. 88 FR 89539. DHS acknowledges that inflation
will likely change from the June 2023 CPI-U before the fees in this
rule take effect. The time and effort required to calculate the fees
for this rule, draft comment responses, prepare supporting
documents, perform the regulatory impact analysis, small entity
impact analysis, and clear the rule through the necessary channels
requires that a reasonable endpoint be selected on which to base the
required calculations and move the final rule forward without
continuous updates.
\38\ DHS calculated this by subtracting the December 2016 CPI-U
(241.432) from the June 2023 CPI-U (305.109), then dividing the
result (63.677) by the December 2016 CPI-U (241.432). Calculation:
(305.109 - 241.432)/241.432 = .2637 x 100 = 26.37 percent.
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Some of the proposed fees set to increase less than inflation are
the fees for Form N-400, Application for Naturalization, certain
adoption-related forms (e.g., Form I-600, Petition to Classify Orphan
as an Immediate Relative and Form I-800, Petition to Classify
Convention Adoptee as an Immediate Relative), and other immigration
benefit requests where DHS limited the proposed fee increase to 18
percent increase (not including biometrics fees), as described in the
proposed rule. See 88 FR 402, 450-451, 486-487 (Jan. 4, 2023).
This final rule additionally holds several fees to the rate of
inflation since the previous fee increase in 2016. For example, DHS
adjusts the paper filing fees for Forms I-130, I-485, I-539, and I-751
by inflation.
DHS notes that an increase of a straight 26.37 percent based solely
on inflation deviates from the ABC model that OMB Circular A-25
recommends, and the method generally used by DHS in past USCIS fee
rules. However, as stated in past fee rules, the proposed rule, and in
responses to comments in this rule, DHS is not strictly bound by A-25;
nor is it limited to setting fees based on the costs of the service
under 31 U.S.C. 9701. For public policy reasons, DHS may use and 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. 81 FR
73308 (the 2016 final rule noted that the Application for
Naturalization fee has not changed in nearly a decade and was being set
at less than it would be if the 2007 fee were simply adjusted for
inflation). DHS believes that this combination of limiting certain fee
increases for policy reasons, setting fees using the ABC model, and
adjusting fees by inflation, in addition to being responsive to public
comments, provides a logical, reasonable, and balanced approach. For
the proposed rule, and consistent with past fee rules, DHS used its
discretion to limit some proposed fee increases that would be overly
burdensome on applicants, petitioners, and requestors if set at
activity-based costing (ABC) model output levels. 88 FR 402, 450-451.
DHS is doing the same in the final rule.
9. Fee Exemptions and Fee Waivers
The proposed rule included new fee exemptions and proposed to
codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023).
This final rule expands fee exemptions for humanitarian filings and
adoptions. See Tables 5B, 7; 8 CFR 106.3(b). Many commenters requested
that DHS provide more fee exemptions for humanitarian related benefit
requests. In response to the public comments, DHS reexamined the fees
for victim-based or humanitarian requests and other categories and
decided to provide more related fee exemptions. Normally, expanding fee
waivers or exemptions may increase fees, as explained in the proposed
rule. 88 FR 402, 450-451. However, in this final rule, DHS revised the
USCIS budget to accommodate the revenue generated by the fees and fee-
paying receipts. As such, DHS is implementing these fee exemptions
without increasing fees for other benefit requests.
a. No New Fee Waivers
DHS acknowledges the importance of ensuring that individuals who
cannot afford filing fees have access to fee waivers. DHS has primarily
sought to ease the burden of fee increases by significantly expanding
the number of forms that are now fee exempt. See 8 CFR 106.3(b). DHS
believes it has provided fee waivers for the appropriate forms and
categories by emphasizing humanitarian, victim-based, and citizenship-
related benefits while changing some fee waivers to fee exemptions.
Additional fee waivers
[[Page 6213]]
would require USCIS to increase fees for other forms and requestors to
compensate for fewer requests paying fees. DHS has sought to balance
the need for the fee waivers and the need to ensure sufficient revenue
and does not believe additional fee waivers are appropriate.
b. New Fee Exemptions
Many commenters requested that DHS provide more fee exemptions and
free services for humanitarian-related benefit requests. In response to
the public comments, DHS reexamined the fees for victim-based or
humanitarian requests and other categories and decided to provide fee
exemptions for several additional forms. A summary of the current and
new exemptions is provided below in Table 5A and 5B. The adoption
related fee exemptions are in Table 7. Balancing beneficiary-pays and
ability-to-pay and the funding needs of USCIS, DHS has determined that
these additional fee exemptions are warranted for the following
reasons.
Victims of Severe Form Of Trafficking (T Nonimmigrants)
In the proposed rule, DHS offered a fee exemption for T
nonimmigrant status (``T visa'') applicants, T nonimmigrants, and their
derivatives for Form I-290B, Notice of Appeal or Motion, only if filed
for any benefit request filed before adjusting status or for Form I-
485, Application to Register Permanent Residence or Adjust Status. In
this final rule, DHS expands the exemption for this category of
requestors to include Form I-290B if filed for ancillary forms
associated with Form I-485. DHS also exempts the fee for Form I-824,
Application for Action on an Approved Application or Petition, for this
population in this final rule. As stated in the proposed rule, the T
visa program is historically underused and the annual statutory cap of
5,000 has never been reached. See 88 FR 460. DHS aims to further
encourage participation of eligible victims of trafficking in the T
visa program by expanding fee exemptions as provided in this final
rule. DHS believes that these expanded fee exemptions advance the
humanitarian goals of the T visa program by reducing barriers for this
particularly vulnerable population while meeting the agency's funding
needs because of the relatively low receipts and cost transfer for
these forms.\39\ Also, providing these fee exemptions helps to ensure
parity of access to immigration relief for T visa applicants, T
nonimmigrants, and their derivatives with similarly situated
humanitarian categories of requestors. Finally, these additional
exemptions will help account for the trauma and financial difficulties
that T nonimmigrants may endure long after escaping their traffickers.
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\39\ From FY 2018 through FY 2022, T nonimmigrants filed a five-
year annual average of 311 Forms I-290B and a five-year annual
average of 4 Forms I-824. See RIA, Table 47. Based on these annual
average receipts, the transfer payment from the government to
benefit requestors is calculated to be $171,672 for Form I-290B and
$2,242 for Form I-824. See RIA, Table 48. This represents 0.09% and
0.001%, respectively, of the grand total transfer payments. See RIA,
Table 48.
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Victims of Qualifying Criminal Activity (U Nonimmigrants)
DHS provided fee exemptions in the proposed rule for U nonimmigrant
status (``U visa'') petitioners and U nonimmigrants filing Form I-192,
Form I-193, Form I-290B, and Form I-539 in limited circumstances. DHS
expands these fee exemptions in this final rule such that Form I-192,
Form I-193, and Form I-539 are fee exempt when filed by a U visa
petitioner or U nonimmigrant at any time, and Form I-290B is also fee
exempt if filed for ancillary forms associated with Form I-485. DHS
also expands the fee exemption for Form I-765 to include initial,
renewal, and replacement requests. Furthermore, DHS provides additional
fee exemptions for Form I-131, Form I-485, Form I-601, Form I-824 and
Form I-929 for this population. Providing these fee exemptions helps to
ensure parity of access to immigration relief for U nonimmigrants with
similarly situated humanitarian categories of requestors. These
additional fee exemptions are provided in this final rule for the
reasons stated in Section IV.F of this preamble where DHS responds to
the public comments provided on the fees proposed for U nonimmigrants.
VAWA Form I-360 Self-Petitioners and Derivatives
DHS offered fee exemptions in the proposed rule for VAWA self-
petitioners and derivatives filing Forms I-131, I-212 and I-601
depending on whether Forms I-360 and I-485 are filed concurrently or
currently pending adjudication. Additionally, exemptions were proposed
for Forms I-290B and I-485 when the Form I-485 is filed concurrently
with the Form I-360, and for initial filers of I-765 for VAWA self-
petitioners and derivatives. For the reasons stated in Section IV.F of
this preamble in response to the public comments provided on VAWA self-
petitioners, this final rule expands fee exemptions to include when
Form I-360 and Form I-485 are filed separately and for some ancillary
forms, when the I-485 is not pending. DHS also expands the fee
exemption for Form I-290B filed by VAWA self-petitioners to include any
benefit request filed before adjusting status or for Form I-485 and
associated ancillary forms. Additionally, this final rule provides VAWA
self-petitioners fee exemptions for Form I-601A, Form I-824, and Form
I-765 renewal and replacement requests. Providing these fee exemptions
helps to improve parity of access to immigration relief for VAWA self-
petitioners with similarly situated humanitarian categories of
requestors. On balance, the reduction of barriers to immigration relief
for VAWA self-petitioners when compared with the relatively low
transfer payment from the government to other benefit requestors
supports DHS's decision to provide these fee exemptions.\40\
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\40\ From FY 2018 through FY 2022, VAWA self-petitioners filed
an annual average of 1,273 Forms I-290B and an annual average of 314
Forms I-824. See RIA, Table 47. Based on these annual average
receipts, the transfer payment from the government to benefit
requestors is calculated to be $1,550,128 for Form I-290B and
$36,769 for Form I-824. See RIA, Table 48. This represents 0.09% and
0.001%, respectively, of the grand total transfer payments. See RIA,
Table 48.
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Conditional Permanent Residents filing an application for a waiver
of the joint filing requirement based on battery or extreme cruelty.
For conditional permanent residents (CPRs) seeking a waiver of the
Form I-751 joint-filing requirement based on battery or extreme
cruelty, DHS provides an additional fee exemption in this final rule.
DHS believes that CPRs filing under this exception are similarly
situated to other VAWA requestors, for whom DHS has created new fee
exemptions in the proposed rule and final rule. As the proposed rule
noted with regards to VAWA self-petitioners, see 88 FR 402, 461 (Jan.
4, 2023), abused CPRs may still be living with their abuser or have
recently fled their abusive relationship when filing Form I-751.
Abusers often maintain control over financial resources to further the
abuse, and victims may have to choose between staying in an abusive
relationship and poverty and homelessness. Id. Therefore, CPRs who are
victims of abuse may lack financial resources or access to their
finances. DHS acknowledges that the proposed rule stated that it could
not provide this fee exemption because Form I-751 petitioners can seek
a joint-filing waiver on multiple grounds at once. Id. at 462. Upon
reconsideration, however, DHS sees no reason that providing the fee
exemption for CPRs who also request
[[Page 6214]]
multiple waivers would be infeasible operationally. DHS further notes
that CPRs requesting abuse waivers are a relatively small population,
id.; RIA Table 47; so even without the budget reductions described
earlier, this additional fee exemption would have minimal effect on
USCIS revenue and other fees.
Abused Spouses and Children Adjusting Status Under CAA and HRIFA
In the proposed rule, DHS proposed a fee exemption for abused
spouses and children adjusting status under CAA and HRIFA for Form I-
290B only if filed for any benefit request filed before adjusting
status or for Form I-485. In this final rule, DHS expands this
exemption for this category of requestors to include Form I-290B if
filed for ancillary forms associated with Form I-485. DHS also exempts
the fee for Form I-824 for this population. DHS has determined that
these new exemptions are warranted because these applicants can face
many of the ongoing financial obstacles as other VAWA requestors, as
discussed earlier. These additional fee exemptions, which DHS has
extended to one or most of the categories listed in Table 5B, improve
the parity of fee exemptions amongst humanitarian and protection-based
immigration categories. Given the very low number of applicants for
these two populations (see 88 FR 402, 462, Jan. 4, 2023), DHS
anticipates that these additional fee exemptions will have a negligible
impact on its budget.
Abused Spouses and Children Seeking Benefits Under NACARA and Abused
Spouses and Children of LPRs or U.S. Citizens Under INA sec. 240A(b)(2)
For abused spouses and children seeking benefits under NACARA as
well as abused spouses and children of LPRs or U.S. citizens under INA
sec. 240A(b)(2), DHS proposed fee exemptions for Form I-765 initial
requests submitted under 8 CFR 274A.12(c)(10). In this final rule, DHS
expands these fee exemptions to include Form I-I-765 renewal and
replacement requests, as well as Form I-824 for both categories of
requestors. DHS determined that these new exemptions are warranted
because abused NACARA applicants may face many of the ongoing financial
obstacles as other VAWA requestors, as discussed previously. These
additional fee exemptions, which DHS has extended to one or most of the
categories listed in Table 5B, improve the parity of fee exemptions
amongst humanitarian and protection-based immigration categories.
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 ISAF and their derivative beneficiaries.
DHS proposed fee exemptions in the proposed rule for 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 ISAF
and their derivative beneficiaries filing Form I-290B for any benefit
request filed before adjusting status or Form I-485 and Form I-765
initial requests. In this final rule, DHS expands these fee exemptions
for this category of requestors to include Form I-290B if filed for
ancillary forms associated with Form I-485 and Form I-765 replacement
and renewal requests. DHS also exempts the fee for Form I-824 for this
population. DHS echoes the reasoning provided in the proposed rule as
to why this population merits additional fee exemptions. See 88 FR 463.
DHS believes that it is an inefficient use of USCIS resources to
adjudicate individual fee waiver requests for this group when such
requests will likely be granted. DHS also believes that the time saved
in the adjudication process for these individuals will demonstrate the
agency's ``full and prompt cooperation, resources, and support'' for
this population as directed by the President.\41\ Also, DHS experience
indicates that many in the OAW population move often, and have
experienced challenges in securing employment authorization documents
(EADs) that have resulted in USCIS receiving many EADs back as
undeliverable (for example, needing to relocate after being resettled
in the United States, or not having their initial EAD properly
transferred to their new address), which would have required them to
submit additional requests such as Form I-765 with the fee to request a
replacement EAD. DHS acknowledges that these challenges faced by this
population result from circumstances beyond their control, and
therefore provides expanded fee exemptions to improve their access to
immigration benefits for which they are eligible.
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\41\ See Memorandum on the Designation of the Department of
Homeland Security as Lead Federal Department for Facilitating the
Entry of Vulnerable Afghans into the United States, Aug. 29, 2021.
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Special Immigrant Juveniles (SIJs)
In the proposed rule, DHS proposed a fee exemption Form I-290B
filed by SIJs for any benefit request filed before adjusting status or
for Form I-485. In this final rule, DHS expands this fee exemption to
include Form I-290B if filed for ancillary forms associated with Form
I-485. DHS also provides a fee exemption for SIJs filing Form I-601A
and Form I-824. Notwithstanding that SIJs adjust status in the United
States and do not generally need to use Form I-601A, some individuals
in this category do file the form. Given the very small number of
receipts, DHS provides a fee exemption for SIJs filing Form I-601A. DHS
believes that these expanded fee exemptions align with the reasoning
for exempting fees for this population given in the proposed rule (see
88 FR 463) and improves the parity of fee exemptions among similarly
situated humanitarian and protection-based immigration categories.
Current and Former U.S. Armed Forces Service Members, Including Persons
Who Served Honorably on Active Duty in the U.S. Armed Forces filing
under INA sec. 101(a)(27)(K)
For current and former U.S. Armed Forces service members, including
persons who served honorably on active duty in the U.S. Armed Forces
filing under INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27(K), DHS
proposed a fee exemption for Form I-765 initial requests for the
service member in the proposed rule. DHS expands this fee exemption in
the final rule to include Form I-765 renewal and replacement requests
for the service member. DHS provides these additional fee exemptions in
furtherance of our commitment to reduce barriers and improve access to
immigration benefits for individuals who served in the U.S. Armed
Forces, as described in the proposed rule.\42\ DHS also believes that
providing a fee exemption for this population for Form I-765 renewal
and replacement requests improves parity with similarly situated
immigration categories like special immigrant Afghan and Iraqi
translators and interpreters.
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\42\ See 88 FR 465 (noting DHS's involvement in the initiative
to support service members, veterans, and their immediate family
members in recognition of their commitment and sacrifice).
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1. Summary Tables of Fee Exemption Changes in the Final Rule
Tables 5A, 5B, and 5C compare fee exemptions and fee waiver
eligibility at three points in time: those currently in effect, those
provided in the proposed
[[Page 6215]]
rule, and those provided in this final rule. These tables include fee
exemptions and fee waivers that are required under INA sec. 245(l)(7),
8 U.S.C. 1255(l)(7), and other immigration categories for which DHS is
providing additional fee exemptions and waivers. These tables do not
include all USCIS benefit requests or groups for which DHS currently
provides or will provide a fee exemption or waiver in this rule or by
policy.\43\
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\43\ For all other fee exemptions and fee waiver eligibility,
see 8 CFR 106.2, 106.3.
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<bullet> Table 5A illustrates the fee exemptions and fee waiver
eligibility existing before the effective date of this final rule
(``current'').
<bullet> Table 5B lists forms eligible for fee waivers as provided
in the proposed rule, additional fee exemptions provided in the
proposed rule, and additional fee exemptions provided in this final
rule.
<bullet> Table 5C summarizes the available fee exemptions and fee
waiver eligibility as of the effective date of this final rule, which
includes currently available fee exemptions and the additional fee
exemptions provided in the proposed rule.
BILLING CODE 9111-97-P
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BILLING CODE 9111-97-C
c. Codifying Fee Waiver Eligibility Criteria
The proposed rule specified that discretionary waiver of fees
requires that a waiver based on inability to pay be consistent with the
status or benefit sought, including benefits that require demonstration
of the applicant's ability to support himself or herself, or
individuals who seek immigration status based on a substantial
financial investment. See 88 FR 402, 593 (proposed 8 CFR
106.3(a)(1)(ii)). The final rule removes this regulatory text because
it is redundant and unnecessary, as the forms eligible for fee waiver
are enumerated at 8 CFR 106.3(a)(3). The final rule codifies that a
person demonstrates an inability to pay the fee by establishing at
least one of the following criteria:
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\98\ These applicants are eligible for naturalization under INA
sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for
naturalization without lawful permanent residence under INA sec.
329; 8 U.S.C. 1440.
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<bullet> Receipt of a means-tested benefit as defined in 8 CFR
106.1(f)(3) at the time of filing;
<bullet> Household income at or below 150 percent of the Federal
Poverty Guidelines at the time of filing; or
<bullet> Extreme financial hardship due to extraordinary expenses
or other circumstances that render the individual unable to pay the
fee.
See 8 CFR 106.3(a).
This change codifies the 2011 Fee Waiver Policy criteria that USCIS
may grant a request for fee waiver if the requestor demonstrates an
inability to pay based on receipt of a means-tested benefit, household
income at or below 150 percent of the FPG, or extreme financial
hardship.\99\ While not a change
[[Page 6233]]
to fee waiver eligibility criteria, DHS believes that codifying these
criteria in this final rule will provide consistency and transparency
that is responsive to the concerns of many commenters.
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\99\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, Policy Memorandum, PM-602-0011.1, ``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'' (Mar. 13, 2011), <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>.
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d. No Mandatory Use of Form I-912
In the proposed rule, 8 CFR 106.3(a)(2) stated, ``Requesting a fee
waiver. A person must submit a request for a fee waiver on the form
prescribed by USCIS in accordance with the instructions on the form.''
In this final rule, USCIS will maintain the status quo of accepting
either Form I-912 or a written request. The final rule will revert to
the current effective language at 8 CFR 103.7(c)(2) (Oct. 1, 2020),
which states, ``Requesting a fee waiver. To request a fee waiver, a
person requesting an immigration benefit must submit a written request
for permission to have their request processed without payment of a fee
with their benefit request. The request must state the person's belief
that he or she is entitled to or deserving of the benefit requested,
the reasons for his or her inability to pay, and evidence to support
the reasons indicated. There is no appeal of the denial of a fee waiver
request.''
After considering public comments in response to the proposed
requirement to submit Form I-912, DHS agrees with multiple points made
by commenters. DHS acknowledges that requiring submission of Form I-912
could create an additional burden on certain requestors. See 88 FR 402,
458 (Jan. 4, 2023). Due to the multiple ways of establishing one's
inability to pay, see 8 CFR 106.3(a)(1), Form I-912 may be complex for
some requestors. DHS also recognizes that some requestors, particularly
those who are struggling financially, may face difficulty accessing
printing and internet services. DHS believes that flexibility is
important in dealing with these populations, and allowing requestors to
seek fee waivers via written request will improve access to immigration
benefits consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). Because
less than one percent of fee waivers are requested by written request
instead of Form I-912, continuing to allow written requests will not
significantly impact USCIS operations. See 88 FR 402, 458 (Jan. 4,
2023). For these reasons, this final rule maintains the current
effective regulation that allows requestors to obtain a fee waiver by
written request without filing Form I-912.
e. Child's Means-Tested Benefit Is Evidence of Parent's Inability To
Pay
After considering the comments on the proposed rule DHS has decided
to modify the instructions for Form I-912 to accept evidence of receipt
of a means-tested benefit by a household child as evidence of the
parent's inability to pay because eligibility for these means-tested
benefits is dependent on household income. Such benefits would include
public housing assistance, Medicaid, SNAP, TANF, and SSI, although DHS
is not codifying specific means-tested benefits and will implement
those as examples in guidance through the updated Form I-912
instructions. DHS has decided to limit this policy to household spouses
and children because other household members' eligibility for certain
means-tested benefits may not reflect the financial need of the fee
waiver requestor. For example, for SSI purposes an individual's deemed
income only includes the income of their spouse and parents with whom
they live and their Form I-864 sponsor.\100\ USCIS retains the
discretion to determine whether any requestor is eligible for a fee
waiver, including whether the means-tested benefit qualifies as
provided in 8 CFR 106.1(f) and the Form I-912 instructions.
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\100\ Soc. Sec. Admin., ``Understanding Supplemental Security
Income, What Is Income?'' (2023), <a href="https://www.ssa.gov/ssi/text-income-ussi.htm">https://www.ssa.gov/ssi/text-income-ussi.htm</a> (last visited Aug. 21, 2023).
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10. Procedural Changes To Address Effects of Fee Exemptions and
Discounts
DHS is making procedural changes in the final rule to address
issues that it has experienced with fee-exempt and low fee-filings. DHS
appreciates the concerns of commenters and is making changes to address
those concerns by lowering many fees below the amount that was
proposed, establishing discounts for small employers and nonprofits,
and adding multiple fee exemptions. However, to provide the requested
changes, DHS must make some adjustments to codified procedural
requirements to mitigate some of the unintended consequences of
providing limited discounts and free services and some of the actions
for which those changes may provide an incentive.
a. Duplicate Filings
The final rule provides that a duplicate filing that is materially
identical to a pending immigration benefit request may be rejected. See
8 CFR 103.2(a)(7)(iv). DHS did not initially propose to prohibit
multiple filings of identical requests to deter multiple filings of
requests that have no or minimal fee, to reduce backlogs, and to
improve processing times.
DHS is concerned that the new fee exemptions listed above will lead
to the filing of multiple or simultaneous filing of requests that could
create jurisdictional conflicts between DHS offices or individual
immigration service officers who adjudicate the same types of requests.
For example, filing multiple Forms I-290B, Notice of Appeal or Motion,
may lead to the filing of multiple motions, multiple appeals, or the
simultaneous filing of motions and appeals that would create
jurisdictional conflicts between the Administrative Appeals Office
(AAO) and other DHS offices. USCIS must intake the request, process or
reject the request, and incur the associated costs for each duplicate,
multiple or original request even when no fee is required. Multiple
filings increase costs to USCIS to reject or process and it may
exacerbate backlogs because free services or those with minimal fees do
not provide revenue that can be used to fund new processing capacity.
Requesters who file multiple requests consume excessive USCIS resources
to the detriment of those who file one legitimate request.
Although it seems self-evident that USCIS can reject a materially
identical filing of the exact same form while a previous request for
the same benefit for the same person is still pending, that authority
is not codified. Historically, USCIS has accepted duplicate filings of
certain forms assuming the fee would cover the duplicate adjudication
effort, if any. USCIS experience in administering OAW, U4U, the
processes for Cubans, Haitians, Nicaraguans, and Venezuelans, and FRP
has found that applicants submit multiple parole requests when they are
fee exempt (as they are for OAW), as well as multiple Forms I-134A,
Online Request to be a Supporter and Declaration of Financial Support,
for the same prospective beneficiary. USCIS also receives duplicate
Forms I-730, Refugee/Asylee Relative Petition, and Forms I-918,
Petition for U Nonimmigrant Status, which do not have a filing fee. For
some of these cases USCIS will adjudicate the initial and duplicate
petitions on the merits, increasing costs to USCIS. Others are
administratively closed, rejected, or consolidated with the duplicate
request. All of these actions take time away from processing other
requests. DHS is concerned that the reduction of fees for the
additional
[[Page 6234]]
forms provided in this rule, see Table 5B, will in the same way cause
applicants to submit multiples of the same request.
This change is necessitated by DHS's decision to provide the
additional free services in the fee rule as requested by commenters. As
explained above, USCIS experience is that when a full cost recovery fee
is charged, duplicate, identical filings are very uncommon, but when
the request is free or minimal (such as with the $10 H-1B Registration
Fee) they are submitted more frequently. Because this problem results
from fee exempt filings, and this rule provides additional fee
exemptions as requested by commenters, codifying this restriction as a
related change to offset the possible negative effects of the relief is
a logical outgrowth of the proposed rule.\101\ USCIS already rejects or
administratively closes a request that is materially identical to a
request that is being adjudicated because a requester generally cannot
receive two or more identical immigration statuses, classifications,
visas, or benefits. Individuals generally do not have a substantive
right to receive multiple issuances of identical immigration benefits,
which by their nature are only of value at first issuance (e.g., two
green cards or two travel documents). Thus, DHS will only approve
document replacement requests under certain circumstances such as when
the document is lost, stolen, or destroyed. In addition, after
employees have already processed one request and made a decision,
requiring the same or another agency employee to process the same
request all over again, while a backlog of requesters remain waiting
for attention, is not an efficient use of agency resources, especially
when the request has no fee. This minor change to USCIS intake
procedures is procedural in nature and does not alter the substantive
rights of individuals. DHS is codifying this practice to ameliorate
unintended consequences that may logically flow from the actions we are
taking to provide more fee relief in this rule. These changes are made
in the final rule as a procedural change and thus public comment is not
required. See 5 U.S.C. 553(b)(A). Therefore, DHS is adding new 8 CFR
103.2(a)(7)(iv) to provide that a request that is materially identical
to a pending request may be rejected.
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\101\ An agency may make changes that follow logically from or
reasonably develop the rules the agency proposed. See, Air Transport
Ass'n of America v. C.A.B., 732 F.2d 219 (D.C. Cir. 1984).
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b. Revocations
The final rule changes to a minor extent the handling of an
approved benefit request if an incorrect fee is submitted or if the fee
payment instrument is dishonored. See 8 CFR 103.2(a)(7)(ii)(D)(1) and
106.1(c)(2).
DHS is authorized to charge fees and inherent in that authority is
the authority to enforce the payment of the fee and sanction failure to
pay the fee. Payment of a codified fee is a fundamental eligibility
criterion for any immigration benefit request. Failure to pay the
correct fee by falsifying or misrepresenting eligibility for a fee
waiver, exemption, or discount, as well as a dishonored check, stop
payment, credit card dispute, or closed account, renders the requester
ineligible for the approved benefit. Without enforcement capability,
failure to pay fees would have no ramifications and possibly cause
considerable damage to the ability of USCIS to fund its operations.
Regarding the fee discounts, DHS foresees the situation where a
petitioner may submit a lower fee for which they may not qualify and
USCIS may not catch that error at intake. For example, in the five
fiscal years preceding the FY 2016/2017 fee rule, an average of 231
petitions per year were submitted with a Request for Premium Processing
Service, Form I-907, accompanied by a check that was dishonored by the
remitting bank. 81 FR 73292, 73314. For fiscal year 2023, as of July
15, 2023, USCIS received between 30 to 43 dishonored payments per month
that were associated with a Form I-129 filing, with approximately 10 of
those being dishonored for stop-payment. If a benefit approved under
these circumstances is not revoked, petitioners would have the
incentive to request premium processing services in order to receive a
swift approval, knowing they would not face any consequences once the
bank dishonors the premium processing payment. Id.
Accordingly, balancing the need to provide relief to those
requesters who have less ability to pay with the need to fully fund
DHS, in the final rule DHS provides that if USCIS accepts a benefit
request and determines later that the request was not accompanied by
the correct fee, USCIS may deny the request. See 8 CFR
103.2(a)(7)(ii)(D)(1). This change will insulate USCIS against the
falsification of fee discount eligibility and the negative revenue
impacts that would cause. Further, many of the discounted fee requests
will include a request for premium processing and USCIS may approve
them in a few days. The alternative to revocation on notice would be
for USCIS to hold each benefit request until the financial instrument
used to pay the fee has finally cleared or been rejected. In the
interest of administrative efficiency and prompt processing of benefit
requests, DHS has rejected that alternative. Thus, if the benefit
request was approved before USCIS determines the correct fee was not
paid, the approval may be revoked upon notice. Id. Sending a Notice of
Intent to Revoke (NOIR) will be more effective than billing for the
unpaid fee because the requestor may simply ignore the bill while
confident that it would cost USCIS more to attempt collection through
litigation or other means. In most cases, the NOIR will be cured by
payment of the correct amount.
The first sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the
benefit request was approved, the approval may be revoked upon
notice.'' DHS is revising 106.1(c)(2) to clarify that if the benefit
request was approved, the approval may be revoked upon notice,
rescinded, or canceled subject to statutory and regulatory requirements
applicable to the immigration benefit request. 8 CFR 106.1(c)(2). DHS
does not in all cases have authority to revoke an approval upon notice.
For example, DHS cannot administratively revoke naturalization and must
use proceedings in a Federal district court following INA section
340(a), 8 U.S.C. 1451(a). Similarly, cancellation under INA section
342, 8 U.S.C. 1453, is the only route to pursue revocation if a
certificate of citizenship or naturalization has already been issued.
Accordingly, while these authorities already exist in statute and
rulemaking is not required to implement them, in the final rule DHS is
revising 8 CFR 106.1(c)(2) to explicitly acknowledge that USCIS' right
to revoke an approval upon notice in cases where a fee payment is not
honored may be subject to statutory limitations.
c. No Initial Field Review for Fee Exempt Form I-290B
When an affected party files an appeal of an initial USCIS
decision, the USCIS officer who made the initial decision reviews the
appeal case and decides whether the case warrants favorable action. See
8 CFR 103.3(a)(2)(ii). During their review, the officer decides whether
the case warrants favorable action and if warranted, may reverse the
initial unfavorable decision. If the officer determines that favorable
action is not warranted, he or she must ``promptly'' forward the appeal
to the AAO. See 8 CFR 103.3(a)(2)(iv). DHS did not propose exceptions
to 8 CFR
[[Page 6235]]
103.3(a)(2)(ii) in the proposed rule. However, as outlined previously
in this section, the final rule makes Form I-290B, Notice of Appeal or
Motion, fee exempt for several new populations. See Table 48, in
Section P. Fee Exemptions of RIA. To avoid fee exempt requests
consuming excessive USCIS resources, in the case of a fee waived or fee
exempt appeal under 8 CFR 106.3, this rule provides that USCIS may
forward the appeal for adjudication without requiring a review by the
official who made the unfavorable decision. See 8 CFR 103.3(a)(2)(ii)
(providing that USCIS may forward the appeal for adjudication without a
review by the official who made the unfavorable decision).
As stated previously in this section, free services do not provide
revenue that can be used to fund new processing capacity. In addition,
making an immigration benefit request free may increase the volume of
those filings. The review by the official who made the unfavorable
decision is a step in the appeal process that costs USCIS time and
money and exacerbates backlogs by requiring officers to review already
decided cases. To minimize the workload on USCIS officers who are
required to review a denied request after appeal that may be caused by
free appeals, DHS is eliminating the regulatory requirement to review
appeals before forwarding them to the AAO if the appeal was fee exempt
or the fee was waived. Elimination of mandatory field review is likely
to decrease appeal processing times. Based on the FY 2017 average time
for the AAO to receive an appeal from the field, the elimination of
mandatory field review could save up to 113 days in processing time, on
average, for cases requiring AAO review. This change will expedite the
appeals process and provide the affected party a quicker decision. This
change is both a logical outgrowth of the proposed rule and a logical
extension of changes made in the final rule at the request of
commenters. In addition, affected parties would not incur costs from
this change because it is a procedural matter of internal agency
management. DHS does not anticipate any cost savings for USCIS from
this change, as any savings will be offset by a full appellate review
at the AAO.
11. Adjustment of Status (Form I-485) and Family-Based Fees
a. Bundling of Fees for Form I-765 and I-131
In this final rule, DHS provides that Form I-485, Application to
Register Permanent Residence or Adjust Status, applicants will pay half
of the regular Form I-765, Application for Employment Authorization,
fee when it is filed with a Form I-485 for which the fee is paid if the
adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had
proposed requiring the full fee for Form I-765, and Form I-131,
Application for Travel Document, when filed with Form I-485. See 88 FR
402, 491. Instead, DHS is setting the filing fee for a Form I-765 filed
concurrently with Form I-485 after the effective date at $260. See 8
CFR 106.2(a)(44)(i). Applicants will pay the same fee to renew their
Employment Authorization Document (EAD) while their Form I-485 is
pending. Id. DHS is unbundling the forms to make USCIS processing times
more efficient by eliminating Forms I-765 filed for individuals who are
not in need of employment authorization or Forms I-131 for individuals
who have no intention of traveling outside the United States. Bundling
Forms I-765, I-131, and I-485 transfers the cost of fees not paid by
these applicants and results in other applicants paying for forms in a
bundle they may not need.
Nevertheless, after considering the public comments DHS decided to
provide the half price Form I-765 to reduce the burden on low, middle-
income, or working-class requesters. DHS acknowledges that many
prospective applicants for lawful permanent resident (LPR) status may
lack work authorization and therefore struggle to pay the filing fee
for Form I-765. An applicant may request a fee waiver for Form I-765.
See 8 CFR 106.3(a)(3)(ii)(F). In addition, Forms I-131 and I-765 are
fee exempt for certain categories of applicants. See 8 CFR 106.3(b).
b. Child Discount for Form I-485
DHS initially proposed that children filing Form I-485 with their
parents pay the same fee as adults, $1,540. 88 FR 402, 494 (Jan. 4,
2023). In the final rule, DHS provides that, when filing with parents,
children will pay $950 for Form I-485. See 8 CFR 106.2(a)(20)(ii). The
current $750 fee went into effect in December 2016 and the new $950 fee
is based on the increase in the CPI-U (the amount of inflation) between
December 2016 and June 2023, like other inflation adjusted fees in this
rule. DHS agrees with many of the points made by commenters, including
that the increased fee may be burdensome to filers and affect family
reunification, and that there may be a cost basis for distinguishing a
Form I-485 filed by a child in conjunction with a parent from other
Form I-485s. DHS also understands the social benefit of family
immigration and the potential impacts the proposed fee could have on
children and families. Therefore, after reviewing the comments, DHS is
reducing the fee for applicants under age 14 who file concurrently with
a parent to $950. Additionally, children under 14 who have properly
filed the Form I-485 with a fee on or after July 30, 2007, and before
the effective date of the final rule are not required to pay additional
fees for the Form I-765 and Form I-131. See 8 CFR 106.2(a)(7)(iv),
(44)(ii)(A).
12. Adoption Forms Changes
After considering public comments, in the final rule DHS is
providing additional fee exemptions for adoptive families. See 8 CFR
106.2(a)(32) and (48). Specifically, DHS will also provide fee
exemptions for:
<bullet> Second extensions.
<bullet> Second change of country requests.
<bullet> Duplicate approval notices for both the orphan and the
Hague process.
These would all be requested using Supplement 3 for either the
orphan (Form I-600/I-600A) or Hague (Form I-800A) process. This is in
addition to the exemptions that DHS already provides for the Supplement
3 for first extensions and first change of country requests. Providing
a second free extension will provide another 15 months of suitability
approval validity at no additional cost to the applicants. DHS
recognizes that intercountry adoptions may take an increasing amount of
time because of factors outside the control of adoptive families, such
as country conditions, and believes this will help reduce related
burdens on adoptive families.
The final rule fee for the Supplement 3 for the orphan and Hague
process will be $455. Petitioners will pay less under the final rule
for most scenarios where they request action on a suitability
application for the orphan or Hague process. Therefore, DHS believes
the fees and new fee exemptions properly align with the needs of the
adoption community while not unnecessarily shifting the USCIS adoption
program costs by increasing fees for others.
13. Naturalization and Citizenship Fees
a. Half Fee for Form N-400
In the proposed rule, applicants with household incomes not more
than 200 percent of the Federal Poverty Guidelines (FPG) would be
eligible for the reduced fee for Form N-400, Application for
Naturalization. See 88 FR 402, 487-488 (Jan. 4, 2023). However, DHS
notes that in recent years only one third of new lawful permanent
residents (LPR) naturalized within 6
[[Page 6236]]
years of obtaining LPR status,\102\ and stakeholders have identified
the fee for Form N-400 as a significant obstacle to
naturalization.\103\
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\102\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Trends in Naturalization Rates: FY 2018
Update'' (Sept. 2021), <a href="https://www.uscis.gov/sites/default/files/document/reports/Trends_In_Naturalization_Rates_FY18_Update_Report.pdf">https://www.uscis.gov/sites/default/files/document/reports/Trends_In_Naturalization_Rates_FY18_Update_Report.pdf</a>.
\103\ See, e.g., Comment Submitted by CASA, May 19, 2021,
<a href="https://www.regulations.gov/comment/USCIS-2021-0004-7122">https://www.regulations.gov/comment/USCIS-2021-0004-7122</a>.
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In response to public comments and additional stakeholder feedback,
and in recognition of the financial gains immigrants obtain with
naturalization and the benefits that the United States obtains from new
naturalized citizens, this final rule expands eligibility for paying
half of the regular fee for Form N-400. An applicant with household
income at or below 400 percent of FPG may pay half price for their
Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). DHS believes
that this change will provide additional relief to longtime residents
who struggle to pay naturalization fees without requiring further fee
increases for other forms to offset the cost. The increased income
threshold for a reduced naturalization fee will also enable the United
States to further benefit from newly naturalized citizens, including
their greater civic involvement and tax revenues.\104\
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\104\ See Holly Straut-Eppsteiner, Cong. Research Servs.,
R43366, ``U.S. Naturalization Policy,'' (May 2021), <a href="https://crsreports.congress.gov/product/pdf/R/R43366">https://crsreports.congress.gov/product/pdf/R/R43366</a>.
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b. Fee Exemption for Adoption Related Form N-600
The final rule provides that Forms N-600, Application for
Certificate of Citizenship and N-600K, Application for Citizenship and
Issuance of Certificate under Section 322, are fee exempt for certain
adoptees. See 8 CFR 106.2(b)(7)(ii) and (8).
Multiple commenters asked USCIS to provide Certificates of
Citizenship for all children immigrating based on adoption at no
additional cost, as the fee would be an unfair burden on adoptive
families. Commenters opposed the increase to the filing fees for
adoptive families whose children enter the United States on certain
types of visas, reasoning that the certificate should be provided at no
additional cost, once all the necessary legal steps have been
completed, just as it is provided at no cost for adopted children who
enter on a different type of visa for children with final adoptions
(IR-3 and IH-3 visas). Commenters indicated that if a Certificate of
Citizenship is not obtained at the time of adoption, this becomes a
further burden for adoptees.
USCIS already provides Certificates of Citizenship to certain
adopted children who come to the United States with a final adoption
(children with an IR-3 or IH-3 visa) \105\ and meet the conditions of
INA sec. 320, 8 U.S.C. 1431, without them having to file a Form N-600
and without paying a fee. USCIS can do this because children with an
IR-3 or IH-3 visa generally automatically acquire U.S. citizenship upon
their admission to the United States as lawful permanent residents and
USCIS can make a citizenship determination based on their underlying
immigration petition approval (Form I-600 or Form I-800) without any
additional evidence. In addition, these children are in visa categories
that are only for adopted children who generally automatically acquire
citizenship upon admission, and therefore USCIS can easily identify
these children based on their visa category. USCIS is not able to
provide Certificates of Citizenship without a Form N-600 for other
categories of children, because USCIS cannot make a citizenship
determination without additional evidence or cannot identify the
children based on their visa category. For example, USCIS cannot issue
Certificates of Citizenship without a Form N-600 for children
immigrating based on adoption who do not have final adoptions (IR-4s
and IH-4s) because they do not automatically acquire citizenship upon
their admission and need to submit additional evidence of a full and
final adoption for a subsequent citizenship determination. USCIS also
cannot automatically issue Certificates of Citizenship to adopted
children who are issued IR-2 visas, because stepchildren are also
issued IR-2 visas but do not automatically acquire U.S. citizenship
upon their admission. USCIS cannot automatically determine which
children in these visa categories automatically acquire citizenship and
which do not, and thus additional evidence submitted with the N-600
application is required. DHS recognizes the unique vulnerability of
adopted children and the overall costs that adoptive families face and
wishes to reduce the burden on adoptive families. DHS also notes a
passport is available to obtain proof of citizenship without filing
Form N-600 for adopted children who automatically acquire or derive
citizenship. If adoptive families wish to seek a Certificate of
Citizenship, DHS cannot eliminate the requirement to file a Form N-600
for additional categories of adopted children (such as IR-2, IR-4, and
IH-4). However, after considering many comments requesting a free N-600
or N-600K for adopted children, DHS will exempt individuals who are the
subject of a final adoption for immigration purposes and meet (or met
before age 18) the definition of child under section 101(b)(1)(E), (F),
or (G) of the INA from Form N-600 filing fees. 8 CFR 106.2(b)(7). This
will include adoptees who are over age 18 at the time of filing or
adjudication of the N-600, but who met the definition of child under
section 101(b)(1)(E), (F), or (G) of the INA before turning 18. DHS
will also exempt children who are the subject of a final adoption for
immigration purposes and meet the definition of child under section
101(b)(1)(E), (F), or (G) of the Act from Form N-600K filing fees.
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\105\ See U.S. Citizenship & Immigr. Servs, U.S. Dep't of
Homeland Security, ``Your New Child's Immigrant Visa,'' <a href="https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-to-the-united-states/your-new-childs-immigrant-visa/your-new-childs-immigrant-visa">https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-to-the-united-states/your-new-childs-immigrant-visa/your-new-childs-immigrant-visa</a> (last updated Dec. 15, 2021), for visa categories for
adopted children.
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DHS realizes that this exemption seems to favor adopted over
biological children in allowing the filing without a fee. DHS did not
take this perception lightly when considering whether adopted children
should be able to file a fee exempt Form N-600/600K. In the end, DHS
reasoned that many adoptive families have already paid USCIS fees for
the Form I-600A/I-600, Form I-800A/I-800, or Form I-130, Petition for
Alien Relative, whereas the Form N-600 fee may be the only USCIS fee
that families of biological children would pay if they acquired
citizenship under INA 301 or 309. DHS also recognizes that families may
also choose to apply for a passport to document their child's
citizenship in cases where a biological child automatically acquired
citizenship. The exemption fits logically within the structure of this
rule, and results in a minimal loss of revenue from adoptee/adopted
child Form N-600 and N-600K fees. Thus, DHS has decided to respond
favorably to the request of many commenters and exempt certain adoptees
from the N-600 fee and adopted children from the N-600K fee. 8 CFR
106.2(b)(7) and (8).
14. Additional Changes
In the final rule DHS:
<bullet> Deletes proposed 8 CFR 106.3(a)(5), ``Fees under the
Freedom of Information Act (FOIA),'' because it is unnecessary. DHS
FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under
FOIA, 5 U.S.C. 552(a)(4)(A)(iii).
<bullet> Removes the fee exemption for Form I-601, Application for
Waiver of Grounds of Inadmissibility, for applicants seeking
cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2),
since they cannot use a
[[Page 6237]]
waiver of inadmissibility to establish eligibility for this type of
relief from removal. Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012); cf.
proposed 8 CFR 106.3(b)(8)(i). Therefore, the form is not filed by that
population, so the exemptions was not needed making the text
superfluous.
<bullet> Codifies that USCIS will provide 30-day advance public
notification before a currently acceptable payment method will be
changed. 8 CFR 106.1(b). Commenters requested that advance notice be
provided when a payment method is changed. As explained more fully in
the responses to the comments on the subject, DHS is codifying this
procedural requirement.
<bullet> Revises proposed 8 CFR 106.2(d)(2) to provide that all
USCIS fees that DHS has the authority to adjust under the INA (those
not fixed by statute) may be increased by the rate of inflation by
final rule. The change is limited only to clarify that all fees not
fixed by statute are increased simultaneously. This change is explained
more fully in the response to the public comments on this subject.
<bullet> Amends 8 CFR 204.5(p)(4)(ii) in this final rule by
removing the clause ``but not to exceed the period of the alien's
authorized admission'' so that the provision once again states that
``Employment authorization under this paragraph may be granted solely
in 1-year increments.'' The last clause in Sec. 204.5(p)(4)(ii), which
is being removed in this final rule, was added in the 2020 Fee Rule in
a revision that was intended to remove ``8 CFR 103.7(b)(1)'' and
replace it with ``8 CFR 106.2.'' 85 FR 46922; 84 FR 62364. In neither
the 2020 Fee Rule nor in the January 4, 2023, proposed rule did DHS
explain why the rule added or retained the last clause, respectively.
Although the proposed rule proposed to retain this clause, DHS has
determined that the clause is unnecessary and potentially confusing. As
explained in the 2016 final rule that created Sec. 204.5(p), the 1-
year grant of employment authorization is meant to be a stopgap measure
for nonimmigrants facing compelling circumstances and, if granted,
provides a period of authorized stay.\106\
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\106\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant Workers
Final Rule, 81 FR 82398, 82424-82425) (Nov. 18, 2016).
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D. Corrections
DHS notes multiple non-substantive errors in the proposed rule as
follows:
<bullet> The preamble to the proposed rule states, ``However, as to
Forms N-565 and N-600K, both the current fees and the proposed fees are
less than the estimated cost (fee-paying unit cost) for each
naturalization form.'' 88 FR 402, 485-486 (Jan. 4, 2023) (emphasis
added). ``However, for Forms N-565 and N-600K, the proposed fees are
below the estimated cost from the ABC model, thus DHS proposes no
discount for online filing of the N-forms.'' Id. at 486 (emphasis
added). These statements were incorrect as to the Form N-565,
Application for Replacement Naturalization/Citizenship Document,
because the proposed fee was higher than its fee-paying unit cost. This
error is immaterial to the final rule because the current N-565 fee is
being increased by the rate of inflation as previously explained.
<bullet> DHS proposed to remove text from Form I-485, Supplement A,
Supplement A to Form I-485, Adjustment of Status Under Section 245(i),
regarding the statutory exemptions to the required INA sec. 245(i)
statutory sum when the applicant is an unmarried child under 17 or the
spouse or the unmarried child under 21 of an individual with lawful
immigration status and who is qualified for and has applied for
voluntary departure under the family unity program. See 88 FR 402, 494
(Jan. 4, 2023). However, Form I-485, Supplement A, does not contain the
language DHS proposed to remove. DHS further stated that it was
unnecessary to codify the exemptions from the required INA sec. 245(i)
sum into the CFR, but the proposed regulatory text did include the
exemptions.
<bullet> The proposed regulatory text for 8 CFR 212.19(e) stated:
``An alien seeking an initial grant of parole or re-parole will be
required to submit biometric information. An alien seeking re-parole
may be required to submit biometric information.'' The second sentence
was included in error and has been removed from the final rule.
E. Status of Previous USCIS Fee Regulations
DHS issued a final rule to adjust the USCIS fee schedule on August
3, 2020, at 85 FR 46788. The rule was scheduled to become effective on
October 2, 2020. However, that rule was preliminarily enjoined.
Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal.
2020); Nw. Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31
(D.D.C. 2020). Consequently, USCIS has not implemented the fees set out
in the 2020 fee rule and is still using the fees set in the 2016 fee
rule unless an intervening rulemaking has codified a different
fee.\107\ DHS discussed the effects of the injunctions and their
relationship to this rule in detail in the proposed rule. See 88 FR
402, 420 (Jan. 4, 2023). This preamble discusses substantive changes
that refer to the requirements of the regulations that existed before
October 2, 2020.\108\ 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 codified in this rule.\109\
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\107\ See 86 FR 7493 (Jan. 29, 2021) (announcing that DHS is
complying with the terms of the orders, not enforcing the regulatory
changes set out in the 2020 rule, and accepting fees that were in
place before October 2, 2020).
\108\ As explained in the proposed rule, the effects of the
injunction of the 2020 fee rule, intervening rules, and the
codification but ineffectiveness of the 2020 fee rule may result in
the standard of citing to the CFR print edition date being
inaccurate because title 8 was amended by a number of rules in and
since calendar year 2020. 88 FR 421. Therefore, regulations that
existed on October 1, 2020 are followed by that date, and provisions
that were codified by the 2020 fee rule are followed by the
effective date of the 2020 fee rule, October 2, 2020.
\109\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, FY 2022-2023 Fee Review Regulatory Impact
Analysis (Jan. 4, 2023), <a href="https://www.regulations.gov/document/USCIS-2021-0010-0031">https://www.regulations.gov/document/USCIS-2021-0010-0031</a>.
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F. Severability
In the approach that DHS adopts in this final rule, the new fees
allow USCIS to recover full cost given projected volumes and all policy
considerations. However, if DHS were prohibited from collecting any new
fee for any reason, DHS believes this rule is structured so that a
stay, injunction or vacatur of a fee set by this rule could be narrowly
tailored to remedy the specific harm that a court may determine exists
from the specific fee or fees challenged. USCIS would be able to
continue operations, perhaps at a reduced level or by shifting
resources in the absence of the fee until DHS is able to conduct new
rulemaking to re-set fees and correct the deficiencies that resulted in
the court order. Operating without one or a few of the new fees would
be preferable to an invalidation of all the new fees, which would great
disruption and deterioration of USCIS operations.
DHS believes that the provisions in this rule can function
independently of each other. For example, the H-1B Registration Fee,
Asylum Program Fee, and genealogy fees could be stalled while a new
rule is undertaken without affecting all other fees generally. This
would reduce USCIS projected revenue, carryover balances and require
realignment of the USCIS budget and a reassessment of spending
priorities. See
[[Page 6238]]
88 FR 402, 517 (Jan. 4, 2023). However, USCIS constantly assesses its
budget and spending to avoid a deterioration in service considering its
fees have not been increased since 2016. Additionally, the statutory
authority for this rule provides that ``fees for providing adjudication
and naturalization services may be set at a level that will ensure
recovery of the full costs of providing all such services'' and does
not require that DHS must recover full costs. INA section 286(m), 8
U.S.C. 1356(m). Therefore, to protect the goals for which this rule is
being proposed, DHS is codifying our intent that the provisions be
severable so that, if necessary, the regulations overall can continue
to function should a particular provision be stricken. See 8 CFR 106.6.
III. Related Rulemakings and Policies
DHS is engaging in multiple rulemaking actions that are in various
stages of development.\110\ DHS realizes that policy and regulatory
changes can affect staffing needs, costs, fee revenue, and processing
times. DHS has considered each of these other rules for peripheral,
overlapping, or interrelated effects on this rule, and has analyzed the
potential effects of rules that may impact or substantively overlap
with this proposal, if any. See 88 FR 402, 432 n.78 (Jan. 4, 2023).
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\110\ See Office of Information and Regulatory Affairs, ``Fall
2023 Unified Agenda of Regulatory and Deregulatory Actions,''
<a href="https://www.reginfo.gov/public/do/eAgendaMain">https://www.reginfo.gov/public/do/eAgendaMain</a> (last visited December
29, 2023).
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DHS has also, to the extent possible, considered the effects, if
any, on this rule of all intervening or future legislation and policy
changes of which USCIS is aware. Immigration policy changes frequently,
and initiatives may come about without being incorporated in a proposed
and final rule simply due to the time required for rule development and
finalization. DHS, therefore, 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. However, DHS believes that it
has examined and considered all relevant aspects of the problems that
this rulemaking solves, responded to all substantive public comments,
articulated a satisfactory analysis and reasoned explanation for each
change and the rule, and not relied on factors which Congress has not
intended us to consider. Specific recent and planned DHS rules and
major policy changes and their effects on this rule are as follows:
A. New Processes
1. Uniting for Ukraine (U4U)
On April 21, 2022, the United States announced a key step toward
fulfilling President Biden's commitment to welcome Ukrainians fleeing
Russia's invasion.\111\ Uniting for Ukraine (U4U) provides a pathway
for Ukrainian citizens and their immediate family members who are
outside the United States to come to the United States and stay
temporarily for a 2-year period of parole. Ukrainians participating in
U4U must have a supporter in the United States who agrees to provide
them with financial support for the duration of their stay in the
United States.
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\111\ See USCIS, Uniting for Ukraine, at <a href="https://www.uscis.gov/ukraine">https://www.uscis.gov/ukraine</a> (last visited Aug. 24, 2023).
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2. Operation Allies Welcome
On August 29, 2021, President Biden directed DHS to lead and
coordinate ongoing efforts across the Federal Government to support
vulnerable Afghans, including those who worked alongside the U.S.
government in Afghanistan for the past 2 decades, as they safely
resettle in the United States. USCIS is and has been responsible for
large portions of the implementation of Operation Allies Welcome
(OAW).\112\
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\112\ See U.S. Dep't of Homeland Sec, Operation Allies Welcome,
<a href="https://www.dhs.gov/allieswelcome">https://www.dhs.gov/allieswelcome</a> (last updated Nov. 27, 2023).
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3. Processes for Cubans, Haitians, Nicaraguans, and Venezuelans
Over the last year, DHS has implemented processes through which
nationals of designated countries and their immediate family members
may request to come to the United States in a safe and orderly way. DHS
used emergency processing when implementing Uniting for Ukraine as well
as new parole processes for certain Cubans,\113\ Haitians,\114\
Nicaraguans,\115\ and Venezuelans.\116\ Under these processes,
qualified beneficiaries who are outside the United States and lack U.S.
entry documents may be considered, on a case-by-case basis, for
advanced authorization to travel and a temporary period of parole for
urgent humanitarian reasons or significant public benefit.
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\113\ 88 FR 1266 (Jan. 9, 2023); see also 88 FR 26329 (Apr. 28,
2023).
\114\ 88 FR 1243 (Jan. 9, 2023); see also 26 FR 327 (Apr. 28,
2023).
\115\ 88 FR 1255 (Jan. 9, 2023).
\116\ 87 FR 63507 (Oct. 19, 2023); see also 88 FR 1279 (Jan. 9,
2023).
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4. Family Reunification Parole Processes
DHS also used emergency processing when establishing new family
reunification parole (FRP) processes for certain Colombians,\117\
Ecuadorians,\118\ Salvadorans,\119\ Guatemalans,\120\ and Hondurans
\121\ and implementing procedural changes to the previously established
Cuban \122\ and Haitian \123\ Family Reunification Parole processes.
These FRP processes are available to certain petitioners who filed an
approved Form I-130, Petition for Alien Relative, on behalf of a
principal beneficiary who is a national of Colombia, Cuba, El Salvador,
Guatemala, Haiti, or Honduras, and their immediate family members.
These processes allow an eligible beneficiary to be considered, on a
case-by-case basis, for advanced authorization to travel and a
temporary period of parole for urgent humanitarian reasons or
significant public benefit.
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\117\ 88 FR 43591 (July 10, 2023).
\118\ 88 FR 78762 (Nov. 16, 2023).
\119\ 88 FR 43611 (July 10, 2023).
\120\ 88 FR 43581 (July 10, 2023).
\121\ 88 FR 43601 (July 10, 2023).
\122\ 88 FR 54639 (Aug. 11, 2023).
\123\ 88 FR 54635 (Aug. 11, 2023).
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B. Effects of Temporary or Discretionary Programs and Processes
As stated elsewhere, and in the proposed rule, Deferred Action for
Childhood Arrivals (DACA) and Temporary Protected Status (TPS) country
designations are both administrative exercises of discretion that may
be granted on a case-by-case basis for certain periods. See 88 FR 402,
447 (Jan. 4, 2023). DACA grants are subject to intermittent renewal,
extension, or termination at DHS's discretion. TPS country designations
must be periodically reviewed and are subject to termination if the
conditions for the designation no longer exist. Likewise, OAW, U4U, and
processes for Cubans, Haitians, Nicaraguans, and Venezuelans are
temporary processes established to address exigent circumstances. The
FRP processes require that the petitioner first receive an invitation
to be able to initiate the process. The invitation requirement allows
DHS to adjust the number of invitations issued based on the resources
available to process requests and to achieve desired policy objectives.
Given that these processes are temporary by definition or may be paused
at the discretion of DHS, USCIS excluded the associated costs and
workload from the fee review and did not propose to allocate overhead
and other fixed costs to these workloads.\124\
[[Page 6239]]
Excluding these initiatives or processes that are temporary from the
fee review mitigates an unnecessary revenue risk, by ensuring that
USCIS will have enough revenue to recover full cost regardless of DHS's
discretionary decision to continue or terminate these initiatives. This
allows DHS to maintain the integrity of its activity-based cost (ABC)
model, ensure recovery of full costs, and mitigate revenue risk from
unreliable sources. While the operational costs of adjudicating
requests associated with these policies are carefully considered on a
day-to-day basis, the proposed rule and this final rule exclude from
the ABC model the costs and revenue associated with these processes.
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\124\ USCIS has considered the number of immigration benefit
requests it will receive from noncitizens from Afghanistan who will
stay permanently and safely resettle in the United States over the
fee review period.
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C. Lawful Pathways Rule
DHS and the U.S. Department of Justice (DOJ) recently published a
final rule, Circumvention of Lawful Pathways. See 88 FR 31314 (May 16,
2023). Under the final rule, certain noncitizens who cross the
southwest land border or adjacent coastal borders without
authorization, and without having availed themselves of existing
lawful, safe, and orderly pathways are presumed ineligible for asylum
unless they meet certain limited exceptions. See id at 31449-52. The
rule is projected to increase USCIS costs for operating the asylum
program. See 88 FR 11704 (Feb. 23, 2023). While the costs of this rule
were not considered in the proposed rule, DHS believes that USCIS'
budget may be sufficient to cover these costs in the near term. Much of
the cost for the Circumvention of Lawful Pathways rule will occur
beyond the 2-year study cycle for the fee revenue required to be
generated by this rule. Future fee rules will use more recent
information and estimates, when available.
D. Premium Processing--Emergency Stopgap USCIS Stabilization Act
As explained in the proposed rule, 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). Then, 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 proposed rule did not include changes directly resulting from
the USCIS Stabilization Act or premium processing rule and stated that
DHS will consider including premium processing revenue and costs in the
final rule. See 88 FR 402, 419 (Jan. 4, 2023). In this final rule, DHS
has transferred $129.8 million in costs to premium processing because
of premium processing revenue projections. See section II.B of this
preamble.
E. Premium Processing Inflation Adjustment
On December 28, 2023, DHS published a final rule, Adjustment to
Premium Processing Fees, effective February 26, 2024, that increased
premium processing fees charged by USCIS to reflect the amount of
inflation from June 2021 through June 2023 according to the Consumer
Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28,
2023). The adjustment increases premium processing fees from $1,500 to
$1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4.
The total projected revenue to be collected from the new premium
processing fees established by the final rule premium processing rule
is too attenuated to be considered for this rule without placing USCIS
at risk of revenue shortfalls if that revenue did not materialize.
However, as noted earlier, this final fee rule transfers additional
costs to premium processing revenue. Premium revenue will be considered
in future fee studies.
F. EB-5 Reform and Integrity Act of 2022 and Related Rules
As stated in the proposed rule, on March 15, 2022, the President
signed the EB-5 Reform and Integrity Act of 2022, which repealed the
Regional Center Pilot Program and authorized a new Regional Center
Program.\125\ See 88 FR 402, 420 (Jan. 4, 2023). (EB-5 stands for
Employment-Based Immigrant Visa, Fifth Preference.) 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 complete the
adjudications within certain time frames. See Public Law 117-103, sec.
106(b). DHS has begun the fee study required by the EB-5 Reform and
Integrity Act of 2022 and has initiated a working group to begin
drafting the rule. However, that effort is still in its early stages.
How the EB-5 Reform and Integrity Act of 2022 and the fee study it
requires relate to this rule and the fees it sets are explained in
section IV.G.2.b. of this preamble in responses to comments on those
fees and related polices.
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\125\ Div. BB of the Consolidated Appropriations Act, 2022,
Public Law 117-103.
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G. Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant Workers
On October 23, 2023, DHS proposed to amend its regulations
governing H-1B specialty occupation workers. 88 FR 72870. The rule
proposed to modernize and improve the efficiency of the H-1B program by
amending several requirements for the subject nonimmigrant
classifications, including to improve the integrity of the H-1B
program. Id. Specifically, that rule proposes that USCIS would select
registrations by unique beneficiary rather than by individual
registration to reduce the potential for gaming the H-1B cap system and
make it more likely that each beneficiary would have the same chance of
being selected, regardless of how many registrations are submitted on
their behalf. If that proposal is finalized as proposed, the actual
number of H-1B Registrations may not be as high as projected in this
rule. For example, the proposed rule forecasted 273,990 H-1B
registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast for the
proposed rule was similar to the 274,237 total registrations in the FY
2021 cap year.\126\ This final rule revises the H-1B registrations
forecast to 424,400 based on more recent data, such as the total
registrations for the FY 2023 cap year. The effect of modernizing H-1B
requirements may result in a different H-1B registration volume than we
forecast here. If that occurs, DHS will address the resulting revenue
shortfall in a future fee rule, or in a separate rulemaking that
directly addresses the H-1B Registration Fee and the changes made by
the Modernizing rule, the H-1B registration process, and the need to
recover the costs of USCIS.
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\126\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, H-1B Electronic Registration Process, <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a>.
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[[Page 6240]]
H. Citizenship and Naturalization and Other Related Flexibilities
DHS expects to soon publish a notice that will propose amendments
of its regulations governing citizenship and naturalization.\127\ The
notice will propose changes to naturalization eligibility regulations
and other immigration benefit provisions that affect naturalization and
acquisition of citizenship, remove outdated provisions, and amend
provisions that are inconsistent with intervening laws. DHS has not
incorporated any changes in this final rule because the Citizenship and
Naturalization notice has not yet been adopted, and whether USCIS needs
to update form fees due to the changes would not be determined until
after implementation. Future fee rules will consider the effects of the
changes if the notice becomes final.
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\127\ See Office of Info. and Regulatory Affairs, Office of
Mgmt. and Budget, Exec. Office of the President, ``Fall 2023 Unified
Agenda of Planned Regulatory Actions,'' RIN 1615-AC80, <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1615-AC80">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1615-AC80</a>
(last viewed Jan. 16, 2024).
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I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
Congress requires the submission of an additional fee of $4,000 for
certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions
in section 402(g) of Div. O of the Consolidated Appropriations Act,
2016 (Pub. L.114-113) enacted December 18, 2015.\128\ DHS proposed to
republish the regulatory text that existed immediately before the 2020
fee rule. See 88 FR 402, 516. DHS did not receive any comments on this
proposal. As such, this final rule republishes the proposed text for
these fees. See 8 CFR 106.2(c)(8) and (9). However, DHS is proposing to
address the 9-11 Response and Biometric Entry-Exit Fees for H-1B and L-
1 Nonimmigrant Workers language in a separate rulemaking in the
future.\129\
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\128\ Section 402(g) of Div. O of Public Law 114-113 added a new
section 411 to the Air Transportation Safety and System
Stabilization Act, 49 U.S.C. 40101 note. Section 411 provided that
the fees collected thereunder would be divided 50/50 between general
Treasury and a new ``9-11 Response and Biometric Exit Account,''
until deposits into the latter amounted to $1 billion, at which
point further collections would go only to general Treasury.
Deposits into the 9-11 account are available to DHS for a biometric
entry-exit screening system as described in 8 U.S.C. 1365b.
\129\ See Department of Homeland Security, Fall 2023 Regulatory
Agenda, 9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1
Visas, <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1651-AB48">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1651-AB48</a> (last visited Dec. 20,
2023).
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IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
DHS provided a 65-day comment period following publication of the
proposed rule. DHS received 7,973 public comment submissions in docket
USCIS-2021-0010 in response to the proposed rule. Of the 7,973
submissions, 5,417 were unique submissions, 2,393 were form letter
copies, 113 were duplicate submissions, 45 were not germane to the
rule, and 5 contained comments and requests that were entirely outside
of the scope of the rule. Most submissions \130\ were anonymous or from
individuals, schools or universities, advocacy groups, lawyers or law
firms, legal assistance providers, community or social organizations,
businesses, State and Federal elected officials, research
organizations, religious organizations, local governments or tribes,
unions, and business or trade associations. Some commenters expressed
total support for the proposed rule or supported one or more specific
provisions of the proposed rule without recommending changes. Most
commenters opposed the rule and expressed unqualified opposition or
opposition to one or more provisions without recommending changes. Many
commenters provided mixed comments of both support for and opposition
to various provisions of the proposed rule, provided general support
with suggested revisions, provided general opposition with suggested
revisions, or were unclear on whether the comment supported or opposed
the proposed rule.
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\130\ The term ``submission'' refers to an entire submission
letter submitted by a commenter. The term ``comments'' refers to
parts or excerpts of the submission based on subject matter.
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DHS reviewed all the public comments received in response to the
proposed rule and addressed relevant comments in this final rule,
grouped by subject area.
DHS also received several comments on subjects unrelated to the
proposed fees that are outside of the proposed rule's scope. DHS has
not individually responded to these comments but has summarized out of
scope comments and provided a general response in Section IV.I of this
preamble.
B. General Feedback on the Proposed Rule
1. General Support for the Proposed Rule
Comment: Several commenters expressed general support for the
proposed rule. Some commenters expressed general support for the rule
without providing additional rationale. Commenters expressed support
for the rule reasoning that the fee adjustments would:
<bullet> Reduce processing times, increase staff, and reduce the
backlog or wait times for decisions.
<bullet> Decrease fraud.
<bullet> Reflect USCIS' adjudication burden and need for sufficient
financing to support effective processing of its vital services.
<bullet> Reduce USCIS' funding and operational issues that are
caused by its status as a fee-funded agency.
A commenter urged USCIS to move forward with the proposed rule and
respond forcefully to organizations that fail to acknowledge USCIS
management has improved efficiencies despite lacking sufficient funds
to sustain operations. The commenter stated that USCIS is capable of
increasing efficiencies in a short period but said that it needs more
congressional funding. Another commenter suggested that USCIS further
increase its fees.
Response: DHS appreciates these commenters' support for the
proposed rule and did not make any changes in this final rule based on
them.
2. General Opposition to the Proposed Rule
Many commenters stated their general opposition to the proposed
fees, the magnitude of the fee adjustments, charging fees in general,
and specific proposed policy changes in the proposed rule. DHS
summarizes and responds to these public comments in the following
sections:
a. Immigration Policy Concerns
Comment: Many commenters opposed the proposed fee adjustments based
on the burdens they would create. Commenters stated that the proposed
fees would:
<bullet> Be a financial obstacle or prohibitively expensive,
discourage people from immigrating to the United States, and be
detrimental for the United States and immigrant communities.
<bullet> Encourage illegal immigration by creating significant
barriers to and discouraging legal immigration.
<bullet> Strain resources with which immigrants can integrate into
the United States.
Response: DHS's fee rule is not intended to reduce or limit
immigration. These fee adjustments reflect DHS's best effort to balance
access, affordability, equity, and benefits to the national interest
while providing USCIS with the funding necessary to maintain adequate
[[Page 6241]]
services. Recognizing that fees impose a burden on fee-paying
requestors and their communities, DHS is shifting its fee-setting
approach away from sole emphasis on the beneficiary-pays principle
toward the historical balance between the beneficiary-pays and ability-
to-pay principles. See 88 FR 402, 424-26 (Jan. 4, 2023). Nonetheless,
USCIS filing fees are necessary to provide the resources required to
perform the work associated with such filings. When fees do not fully
recover costs, USCIS cannot maintain sufficient capacity to process
requests. Inadequate fees may cause significant delays in immigration
request processing which can burden requestors, as well as their
families, communities, and employers.
In this final rule, USCIS has made multiple adjustments to its
budget to limit the extent of fee increases. Ordinarily, any decrease
in the fee adjustments would require a decrease in USCIS' budget and a
commensurate decrease in service levels. Rather than decrease service
levels, in this final rule USCIS has shifted a portion of its budget
from IEFA non-premium revenue to the IEFA premium processing revenue,
in addition to current levels of premium processing in the overall
USCIS budget. USCIS has also revised staffing estimates based on
improved efficiency measures, which allowed a further reduction to the
budget. Through these adjustments, DHS seeks to recover the full cost
of the services provided by USCIS.
This final rule limits fee increases for several forms, including
the Form I-130, Petition for Alien Relative, Form I-485, Application to
Register Permanent Residence or Adjust Status, and Form I-765,
Application for Employment Authorization, to an inflation-based
increase. See Table 1. For reasons explained earlier in section II.C.
of this preamble, the final rule also creates lower fees for certain
small employers and nonprofits. Businesses with 25 or fewer employees
will pay a $300 Asylum Program Fee instead of the $600 fee that larger
businesses will pay, and nonprofits will pay no Asylum Program Fee. See
8 CFR 106.2(c)(13). In addition, many categories of Form I-129,
Petition for Nonimmigrant Worker, now allow for half-price fees for
businesses with 25 or fewer employees and nonprofits. See 8 CFR
106.2(a)(3)(ix); Table 1. The final rule also expands the number of
forms that qualify for fee exemptions. See 8 CFR 106.3(b); Table 5B.
Regarding integration concerns, the final rule increases the household
income threshold to 400 percent of the FPG to enable more
naturalization applicants to qualify for a reduced fee for Form N-400,
Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). These
changes do not represent a change in fee policy or requirements. They
are a continuation of the discretion that DHS typically exercises in
setting USCIS fees. See, e.g., 81 FR 73292, 73296-73297 (Oct. 24,
2016); 75 FR 58962, 58969-58970 (Sept. 24, 2010).
In addition to these changes in the final rule, DHS reiterates the
steps it has taken to mitigate the burden of fee increases on fee-
paying requestors. DHS has maintained some current fees and limited the
increases for many others to levels at or below inflation. See Table 1.
DHS includes a separate Asylum Program Fee to mitigate the scope of fee
increases for individual requestors. See 8 CFR 106.2(c)(13); see also
88 FR 402, 451-454 (Jan. 4, 2023). For humanitarian immigration
categories, DHS has expanded the availability of fee exemptions and
waivers to ensure that the most vulnerable applicants are able to
access protection-based relief. See 8 CFR 106.3; Table 5B; preamble
sections IV.E. and IV.F. DHS is mindful that departures from the
standard USCIS fee-setting methodology result in lower fees for some
and higher fees for others. However, it believes that these fees
balance access, affordability, equity, and benefits to the national
interest while providing USCIS adequate funding.
DHS disagrees that the proposed fee increases are likely to
incentivize irregular migration because the financial costs and other
risks of irregular migration tend to be higher than USCIS fees,\131\
and the economic benefits of lawful migration outweigh USCIS fees.\132\
DHS believes that the consequences of not pursuing full cost recovery
(processing delays, backlogs, and otherwise inadequate services) may be
more likely to discourage lawful migration, since wait times may tend
to have a stronger influence than financial costs on one's decision to
pursue unlawful pathways of migration.\133\ DHS further notes that it
focuses fee exemptions and waivers on humanitarian and protection-based
immigration forms, where requestors are at a greater risk of pursuing
irregular forms of migration. See 8 CFR 106.3; Table 5B.
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\131\ See, e.g., U.N. Office on Drugs & Crime, ``Smuggling of
Migrants: The Harsh Search for a Better Life,'' https://
www.unodc.org/toc/en/crimes/migrant-
smuggling.html#:~:text=The%20fees%20charged%20for%20smuggling,pay%20a
s%20much%20as%20%2410%2C000. (last visited Sept. 5, 2023) (noting
smuggling fees ranging from $2,000-$10,000 depending on point of
origin).
\132\ See, e.g., California Immigrant Data Portal, ``Median
Hourly Wage,'' available at <a href="https://immigrantdataca.org/indicators/median-hourly-wage">https://immigrantdataca.org/indicators/median-hourly-wage</a> (last visited Sept. 7, 2023) (noting that ``the
median hourly wage for naturalized immigrants was $24, compared to
$19 for lawful residents, and $13 for undocumented immigrants'').
\133\ See, e.g., David J. Bier, ```Why Don't They Just Get in
Line?' Barriers to Legal Immigration,'' Testimony, CATO Institute,
Apr. 28, 2021, <a href="https://www.cato.org/testimony/why-dont-they-just-get-line-barriers-legal-immigration">https://www.cato.org/testimony/why-dont-they-just-get-line-barriers-legal-immigration</a> (identifying wait times as a
primary driver of unlawful migration).
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Comment: Other commenters stated that the proposed rule would:
<bullet> Undermine U.S. national values.
<bullet> Be anti-immigrant, ``tantamount to a threat to American
democracy,'' unfair, or unethical.
<bullet> Unduly place the burden of funding USCIS on immigrants.
<bullet> Isolate the United States internationally, reflect poorly
on Americans, harm U.S. relations with other countries, and lead to
other countries increasing their fees.
Response: DHS strongly disagrees that this fee rule represents a
departure from U.S. values or is anti-immigrant, unfair, or unethical.
DHS recognizes that increased fees create burdens for fee-paying
requestors and their communities. However, it would not be more fair,
ethical, pro-immigrant, or consistent with U.S. values to maintain
current fee levels if this results in decreases in USCIS productivity.
Because DHS does not receive congressional appropriations for the great
majority of its operations, DHS must charge fees for the services it
provides to ensure that those seeking to live and work in the United
States can efficiently receive their benefits. Since 1990, the INA has
specified that the government may set immigration adjudication and
naturalization fees at a level that will ensure full cost
recovery,\134\ and past fee rules have consistently followed this
approach.\135\ By shifting its fee-setting approach away from the
beneficiary-pays principle toward the historical balance of ability-to-
pay and beneficiary-pays principles, DHS has sought to reduce barriers
and promote accessibility to immigration benefits. See 88 FR 402, 424-
25 (Jan. 4, 2023). As noted in the prior response, DHS has limited the
increases in many forms and instituted new fee waivers and exemptions
to reduce financial barriers to U.S. immigration benefits.
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\134\ See Departments of Commerce, Justice, and State, The
Judiciary, and Related Agencies Appropriations Act, 1991, Public Law
101-515, 104 Stat 2101 (1990).
\135\ See 72 FR 4888, 4896 (Feb. 1, 2007); 75 FR 33446, 33472
(June 11, 2010); 81 FR 26904, 26905 (May 4, 2016); 88 FR 62280,
62282 (Nov. 14, 2019).
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DHS does not believe that this final fee schedule poses significant
consequences for foreign relations. Commenters failed to cite any
examples of other countries raising immigration fees or otherwise
retaliating in response
[[Page 6242]]
to fee increases by USCIS or the former Immigration and Naturalization
Services (INS). DHS notes that other countries regularly charge fees
for visas and other immigration benefits,\136\ and only one foreign
government entity submitted a comment on the proposed rule.\137\ Unlike
nonimmigrant visa fees set by the U.S. Department of State (DOS), the
principle of reciprocity does not factor into USCIS fees. Cf. INA sec.
281, 8 U.S.C. 1351; 9 FAM 403.8.
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\136\ See Duncan Madden, ``The World's Most Expensive Passports
and Visas,'' Forbes, July 10, 2023, available at <a href="https://www.forbes.com/sites/duncanmadden/2023/07/10/travel-expenses-the-cheapest-and-most-expensive-passports-and-visas/?sh=5e5de6ff6f1e">https://www.forbes.com/sites/duncanmadden/2023/07/10/travel-expenses-the-cheapest-and-most-expensive-passports-and-visas/?sh=5e5de6ff6f1e</a>
(last visited Sept. 5, 2023).
\137\ See <a href="http://Regulations.gov">Regulations.gov</a>, Comment Submitted by ARTS, <a href="https://www.regulations.gov/comment/USCIS-2021-0010-7354">https://www.regulations.gov/comment/USCIS-2021-0010-7354</a>.
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Comment: A commenter stated USCIS should terminate ``unlawful''
special parole programs, as the creation of these unauthorized and
unappropriated programs diverts agency resources from legitimate visa
programs, resulting in fee increases and increased delays for many
benefit requestors. The commenter stated that DHS should return to
interpreting parole authority on a case-by-case basis to enhance DHS's
ability to focus its resources on processing immigration benefits
Congress has authorized and increase access to such benefits without
unreasonable delays.
Response: DHS disagrees that the parole programs identified by this
commenter are unlawful and believes that the legal authority for those
programs has been adequately presented in their respective rules.\138\
As stated earlier, the special parole processes mentioned by the
commenter are necessary to address urgent humanitarian events and aid
in the United States' ongoing efforts to engage hemispheric partners to
increase their efforts to collaboratively manage and reduce irregular
migration that could have worsened without timely action by the United
States. See, e.g., 88 FR 1243 (Jan. 9, 2023); see also 88 FR 26327
(Apr. 28, 2023). DHS acknowledges that, apart from International
Entrepreneur Parole, the special parole processes require the use of
limited USCIS budget resources. However, the case-by-case parole into
the United States of noncitizens under special parole processes aids in
the United States' effort to deter irregular migration from those
countries by providing lawful, safe, orderly pathways to travel to the
United States. Id. Also, unlike many noncitizens who irregularly
migrate, noncitizens who are paroled into the United States through
these processes are immediately eligible to apply for employment
authorization throughout the duration of their parole period, allowing
them to support themselves and contribute to the U.S. economy through
labor, taxes, consumption of goods, and payment of rent and utilities
in their new U.S. communities.\139\
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\138\ See 88 FR 21694 (Apr. 11, 2023); 88 FR 1266 (Jan. 9,
2023); 88 FR 1243 (Jan. 9, 2023); 88 FR 1255 (Jan. 9, 2023); 88 FR
1279 (Jan. 9, 2023).
\139\ See generally, e.g., National Academies of Sciences,
Engineering, and Medicine, ``The Economic and Fiscal Consequences of
Immigration,'' (2017), <a href="https://nap.nationalacademies.org/catalog/23550/the-economic-and-fiscal-consequences-of-immigration">https://nap.nationalacademies.org/catalog/23550/the-economic-and-fiscal-consequences-of-immigration</a>; Chair
Cecilia Rouse et al., The White House Blog: ``The Economic Benefits
of Extending Permanent Legal Status to Unauthorized Immigrants,''
(Sept. 17, 2021) <a href="https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/">https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/</a>.
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As stated in the proposed rule, DHS excluded Form I-941,
Application for Entrepreneur Parole, from this rule. See 88 FR 402, 424
n.47. The fee for Form I-941 will remain at $1,200, the level
previously set to recover its anticipated processing costs to DHS and
will not impact fees or processing times for other immigration benefit
requests. 82 FR 5238, 5280 (Jan. 17, 2017).
b. Impact on Specific Benefit Categories
Comment: Multiple commenters stated that the proposed fees would be
discriminatory, disproportionately burdensome, or otherwise harmful
toward the following immigration categories:
<bullet> Undocumented individuals.
<bullet> Applicants pursuing legal residency and citizenship.
<bullet> Nonimmigrants such as foreign artists.
<bullet> Family-based immigration. Commenters stated that the
proposed rules would be a hindrance to family unity, and would have a
large impact on families and U.S. citizens sponsoring immigrant
relatives, children, partners, fianc[eacute]es, or spouses.
<bullet> Vulnerable and humanitarian immigrants, including
refugees, survivors, and victims of crime escaping violence.
Response: DHS recognizes the burden that immigration fees may pose
for certain requestors. Nonetheless, USCIS filing fees are necessary to
provide the resources required to do the work associated with such
filings. When fees do not fully recover costs USCIS cannot maintain
sufficient capacity to process requests. Inadequate fees may cause
significant delays or other lapses in immigration request processing,
which can result in additional burdens to requestors.
In general, the fees in this final rule are set to ensure full cost
recovery for USCIS. With limited exceptions, as noted in the proposed
rule and this final rule, DHS establishes its fees at the level
estimated to represent the full cost of providing adjudication and
naturalization services, including the cost of relevant overhead and
similar services provided at no or reduced charge to asylum applicants
or other immigrants. This approach is consistent with DHS's legal
authorities. See INA sec. 286(m), 8 U.S.C. 1356(m). In this final rule,
USCIS reduced the fee review budget, as explained earlier in section
II.C of this preamble.
In certain instances, DHS establishes fees that do not represent
the estimated full cost of adjudication in the proposed rule. See 88 FR
402, 450-451. In many cases, this is a result of DHS's refocus on
balancing the beneficiary-pays principle with the ability-to-pay
principle, whereby DHS has reduced or limited fee increases where a
full cost increase would be particularly burdensome for requestors. By
limiting many of the final fees to an inflation-based adjustment of the
current fee, DHS addresses some of these comments.
Regarding individuals seeking to naturalize or obtain proof of
citizenship, DHS has maintained the fees for common forms like Form N-
400, Form N-336, Request for a Hearing on a Decision in Naturalization
Proceedings (Under Section 336 of the INA), and Form N-600, Application
for Certificate of Citizenship, at levels below full cost recovery (See
Table 1; 88 FR 402, 486 (Table 14), Jan. 4, 2023), and expanded the
availability of reduced fee N-400s, see 8 CFR 106.2(b)(3)(ii).
Regarding family-based residency, DHS has limited the increase for
common family-based forms such as Form I-130 and Forms I-129F, Petition
for Alien Fianc[eacute](e), to levels at or below inflation. See Table
1. Regarding artists and other employment-based nonimmigrants, the
final rule limits the fee increase for Form I-129s to a level below
inflation for many small-employer and nonprofit petitioners, see Table
1, eliminates the Asylum Program fee for nonprofit petitioners, and
halves the Asylum Program fee for small-employer petitioners, see 8 CFR
106.2(c)(13).
In addition, this final rule expands fee exemptions and fee waivers
for certain humanitarian categories including survivors, victims of
crime, and refugees. See 8 CFR 106.3; Table 5B; see also 88 FR 402,
459-482 (Jan. 4, 2023). The new exemptions created by this rule include
exemptions for T and U nonimmigrants, VAWA self-petitioners, Special
Immigrant Juveniles (SIJs), and other benefit requestors. 8 CFR
106.3(b). Also, the Director of USCIS may,
[[Page 6243]]
consistent with applicable law, authorize additional fee exemptions
when in the public interest, such as when necessary to address
incidents such as an earthquake, hurricane, or other natural disasters
affecting localized populations. See 8 CFR 106.3(c).
c. Impact on Specific Demographic Characteristics
Comment: Several commenters wrote that certain proposed fees are
discriminatory, disproportionately burdensome, or otherwise harmful to
people based on:
<bullet> Race, ethnicity, skin color, national origin, country of
birth, or country of citizenship.
<bullet> Gender.
<bullet> Sexual orientation or gender identity.
<bullet> Age.
<bullet> Disability.
<bullet> Language.
Response: DHS did not design this fee schedule with any intent to
deter requests from or discriminate against any group of people. The
final fees are set to ensure full cost recovery while accounting for
filers' ability to pay, irrespective of their membership in one of the
groups identified by the commenters. As stated in the proposed rule,
where DHS has determined that a fee in this rule may inequitably impact
those who may be less able to afford it, DHS sets the fees below the
ABC model output. See 88 FR 402, 426 (Jan. 4, 2023). In addition, we
codify the fee waiver eligibility guidance that took effect in 2010 and
expand fee exemptions for vulnerable or low-income populations, as
described elsewhere in this preamble.
Comment: Some commenters wrote that the proposed fees would be
particularly burdensome for low-income or economically disadvantaged
people. Several commenters stated that, due to low wages of many
immigrants, higher fees would create a high burden for benefit
requestors and contribute to their economic insecurity, forcing them to
choose between applications and other necessities. Commenters stated
that the proposed fees would create hardship for some applicants and
their families, threaten immigrants' ability to pay for rent, food, and
necessities, and potentially cause some to go into debt. Commenters
also stated that, to pay fees, low-income applicants may become victims
of predatory loan schemes that offer high interest loans. An advocacy
group expressed concern that increased fees could cause immigrants to
remain or become uninsured.
Response: DHS is aware of the potential impact of fee increases on
low-income and economically disadvantaged individuals and is
sympathetic to these concerns. As discussed in the proposed rule and
consistent with past practice, USCIS has limited fee adjustments for
certain benefit requests. DHS recognizes that immigration application
fees may be burdensome for these filers, and that those who choose to
finance application fees through debt may be responsible for additional
interest. With these types of concerns in mind, DHS has shifted its
fee-setting approach away from the beneficiary-pays principle that
guided the 2019/2020 fee rule and more toward the ability-to-pay
principle. See 88 FR 402, 424-26 (Jan. 4, 2023). To keep many common
forms affordable, DHS has kept their fees at or below full cost
recovery or the rate of inflation. See Table 1. The rule codifies
USCIS' guidance on fee waivers for individuals who are unable to pay.
See 8 CFR 106.3(a). It also expands the number of forms that are
eligible for fee exemptions and waivers, see Table 5B, and includes
several policy adjustments designed to make fee waivers more readily
accessible. See 88 FR 402, 458 (Jan. 4, 2023). For naturalization
applicants who do not meet the requirements for a full fee waiver, DHS
has made N-400 fee reductions more available by increasing the income
threshold to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). DHS
focuses fee exemptions on vulnerable populations and waiver
availability on those with an inability to pay. See 8 CFR 106.3; Table
5B. DHS recognizes that that there are many forms for which fee
exemptions or fee waivers are not available but notes that it is
limited by congressional expectation that many immigrants and
nonimmigrants would possess means of self-support. See INA sec.
212(a)(4), 8 U.S.C. 1182(a)(4). DHS believes that this rule
substantially mitigates many of commenters' concerns while ensuring
that USCIS can recover full costs and fund its ongoing operations. DHS
also recognizes that the immigration process can be complex, and that
benefit requestors may still risk becoming victims of scams or fraud.
We encourage requestors to use the information on the USCIS website to
avoid becoming victims of common scams, fraud, or misconduct.\140\
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\140\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Scams, Fraud, and Misconduct,'' available at
<a href="https://www.uscis.gov/scams-fraud-and-misconduct/scams-fraud-and-misconduct">https://www.uscis.gov/scams-fraud-and-misconduct/scams-fraud-and-misconduct</a> (last visited Sept. 25, 2023).
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d. Impact Based on Geography
Comment: Several commenters stated that the proposed rule and
certain form fees would have a disproportionate effect on benefit
requestors and communities in various parts of the country, including:
<bullet> Rural areas or small towns, where individuals may lack
access to technology.
<bullet> High cost-of-living areas, where individuals are forced to
choose between meeting basic needs and pursuing immigration benefits.
<bullet> Particular states and cities that have large immigrant
populations or high poverty rates, where immigrants have less access to
technology, or where nonprofits may be burdened by COVID-19 and recent
natural disasters.
Response: DHS recognizes that certain individuals may experience
more difficulty paying filing fees partly due to the area of the
country in which they live and that this may have secondary effects on
their communities. This rule is in no way intended to limit access to
immigration benefits based on geography. Like past rules, this fee rule
generally does not factor requestors' geographic locations in setting
fees. Geography is only one of many factors that affect an individual's
ability to pay, and geography may impact on individual's ability to pay
differently depending on their profession, family, and other factors.
For example, individuals living in high-cost areas may also benefit
from higher wages, whereas individuals living in low-cost areas may
face more limited job prospects. DHS considers it more effective to
accommodate filers' ability to pay in the manners described earlier in
this preamble. See section IV.E.3.a. of this preamble for a discussion
of using the U.S. Department of Housing and Urban Development's (HUD)
Mean Family Income (MFI), which accounts for the costs of living in
different parts of the country, to determine eligibility for fee
waivers.
e. Impact on Economy/Employers
Comment: Some commenters stated that raising immigration fees
would:
<bullet> Hamper U.S. population growth and the country's ability to
innovate in technology and culture.
<bullet> Deter workers.
<bullet> Have negative effects on the labor market by discouraging
employers from hiring foreign workers.
<bullet> Create problems for retail, agriculture, construction,
manufacturing, hospitality, and the labor pool in general.
Response: DHS disagrees that these fees will negatively affect the
labor
[[Page 6244]]
market or other sectors described in the comment. With previous fee
increases in 2010 and 2016, DHS has continued to see a steady increase
in filing and has not seen a reduction in filing based on fee
increases. It is possible that USCIS observes no price response to past
fee increases because the value of immigration benefits is greater than
the fees USCIS assesses to recover costs. DHS has no data that would
indicate the fees would limit employers' ability to hire foreign
workers or negatively impact the labor market. In fact, H-1B receipts
have grown by over 225,000 from FY 2010 through FY 2022. Growing demand
in the period immediately after the 2010 and 2016 fee increases reveals
that, in setting fees at levels to recover only USCIS costs, all
applicants enjoyed some cost savings or surplus relative to what the
immigration benefit was truly worth to them. USCIS has discussed
related issues in depth in the supplemental RIA (see Section 5: Price
Elasticity) and SEA. While DHS appreciates that an increase in prices
for immigration benefits affects some individuals' choices to pursue or
not pursue those benefits, DHS notes that demand may also decrease due
to declines in service quality when USCIS programs are not properly
funded. Lastly, DHS reiterates that this final rule lowers the Asylum
Program Fee and certain Form I-129 fees for small employers and
nonprofits. See 8 CFR 106.2(a)(3)(ix), (c)(13); Table 1. These changes
further mitigate any risk that these fees will negatively impact the
labor market or other sectors of the economy.
Comment: Multiple commenters stated that the proposed fees are
disproportionately burdensome, or otherwise harmful to the following
types of petitioners:
<bullet> Smaller and midsized businesses and organizations, by
further increasing labor costs associated with hiring immigrants.
<bullet> Nonprofits.
<bullet> Religious organizations.
Response: DHS recognizes that the impacts that increased fees can
have on smaller and midsized firms, as well as nonprofit and religious
institutions. See Small Entity Analysis. However, DHS notes that these
organizations are also impacted by delayed processing times, backlogs,
and other lapses in service that result if USCIS' operations are not
adequately funded. Mindful of the difficulties that smaller and
midsized firms and nonprofits (including religious institutions) may
face, DHS has discounted the proposed fee increases of the requests
that many such entities submit in this final rule, as discussed in
section II.C of this preamble. For small-employer and nonprofit
petitioners, this final rule limits the fee increases for Form I-129.
See 8 CFR 106.2(a)(3); Table 1. In addition, the final rule reduces the
Asylum Program Fee by $300 for small employers and eliminates the
Asylum Program Fee for nonprofit petitioners. See 8 CFR 106.2(c)(13).
Comment: Commenters also stated that the proposed fees would be
harmful to nonprofit legal service providers and other organizations
that serve immigrant communities. A commenter specified that the
increased fees would result in case-handling delays for their
immigration clients, which will divert resources from other casework
and advocacy priorities.
Response: DHS recognizes the value of legal service providers and
other groups that assist individuals in navigating its regulations and
forms, and that fee increases can impact their ability to serve their
clients. However, DHS believes that inadequate funding for USCIS
(resulting in processing delays, backlogs, and otherwise inadequate
service) would also impact these organizations' ability to deliver
timely and effective legal services for their clients. As discussed
earlier in this rule, the final rule contains several provisions that
make immigration fees more affordable to the immigrant communities
(often indigent and disadvantaged) that nonprofits serve.
Comment: Multiple commenters stated that the proposed rules would
exacerbate the negative economic effects of:
<bullet> The COVID-19 pandemic (e.g., job loss, inability to pay
rent, labor shortages).
<bullet> Inflation.
<bullet> The war in Ukraine.
Response: DHS acknowledges that the last few years have been
difficult on immigrant communities due to the COVID-19 pandemic,
inflation, and various international crises including the war in
Ukraine. However, these events have impacted USCIS' financial stability
as well.\141\ Without increased fees to adequately fund services, USCIS
will inevitably experience decreases in the quality of its services,
and it will be in a substantially worse position to manage future
crises of these sorts when they arise. DHS notes that, during the COVID
pandemic, USCIS implemented many policy changes to accommodate
requestors.\142\ Also, the fee increases in this final rule will help
fund USCIS' Uniting for Ukraine program, as well as other zero-fee or
fee-exempt programs that address international, humanitarian crises,
including refugee and asylum processing and DHS's FRP processes.
Applicants continue to have fee waivers available for specific forms
where they can demonstrate an inability to pay. See 8 CFR 106.3(a).
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\141\ 88 FR 402, 426-429 (Jan. 4, 2023); see also U.S.
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security,
``Uniting for Ukraine,'' <a href="https://www.uscis.gov/ukraine">https://www.uscis.gov/ukraine</a> (last updated
Sept. 20, 2023); U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``I-134A, Online Request to be a Supporter and
Declaration of Financial Support,'' <a href="https://www.uscis.gov/i-134a">https://www.uscis.gov/i-134a</a>
(last updated Nov. 15, 2023) ($0 filing fee).
\142\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``USCIS Response to COVID-19,'' <a href="https://www.uscis.gov/archive/uscis-response-to-covid-19">https://www.uscis.gov/archive/uscis-response-to-covid-19</a> (last updated Mar.
6, 2023).
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Comment: A commenter stated that the increased fees further enhance
the control that corporations and employers have over foreign workers,
as any worker would require their employer's assistance to be able to
afford the fees.
Response: USCIS disagrees with the comment's premise that the
beneficiary's ability t
[…truncated; see source link]Indexed from Federal Register on January 31, 2024.
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.