Rule2026-08333
USCIS Immigration Fees and Related Procedures Required by H.R.1 Reconciliation Bill
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
April 29, 2026
Effective
May 29, 2026
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) issues this interim final rule (IFR) to codify certain immigration fees and other provisions required by the One Big Beautiful Bill Act (H.R.1). This IFR amends U.S. Citizenship and Immigration Services (USCIS) regulations to codify: the asylum and annual asylum fees, including the consequences of non-payment of these fees; the new Form I-94 fee requirement; the validity period for certain types of employment authorization; and the retention of the Form I-589 filing fee for every application.
Full Text
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<title>Federal Register, Volume 91 Issue 82 (Wednesday, April 29, 2026)</title>
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[Federal Register Volume 91, Number 82 (Wednesday, April 29, 2026)]
[Rules and Regulations]
[Pages 22952-22973]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08333]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 106, 208, 244, and 274a
[CIS No. 2841-26; DHS Docket No. USCIS-2026-0133]
RIN 1615-AD09
USCIS Immigration Fees and Related Procedures Required by H.R.1
Reconciliation Bill
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Interim final rule; request for comments.
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SUMMARY: The U.S. Department of Homeland Security (DHS) issues this
interim final rule (IFR) to codify certain immigration fees and other
provisions required by the One Big Beautiful Bill Act (H.R.1). This IFR
amends U.S. Citizenship and Immigration Services (USCIS) regulations to
codify: the asylum and annual asylum fees, including the consequences
of non-payment of these fees; the new Form I-94 fee requirement; the
validity period for certain types of employment authorization; and the
retention of the Form I-589 filing fee for every application.
DATES: This interim final rule is effective May 29, 2026. DHS invites
public comment on all aspects of this interim final rule; written
comments must be submitted on this interim final rule on or before June
29, 2026.
ADDRESSES: You may submit comments on the entirety of this interim
final rule package, identified by DHS Docket No. USCIS-2026-0133,
through the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In
accordance with 5 U.S.C. 553(b)(4), the summary of this rule found
above may also be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments. Comments must be
submitted in English, or an English translation must be provided.
Comments that will provide the most assistance to USCIS in implementing
these changes will reference a specific portion of the interim final
rule, explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the rule and may not receive a response from
DHS. Please note that DHS and USCIS cannot accept any comments that are
hand-delivered or couriered. USCIS cannot accept comments contained on
any form of digital media storage devices, such as CDs/DVDs and USB
drives. USCIS is also not accepting mailed comments at this time. If
you cannot submit your comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>,
please contact the Regulatory Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, by telephone at (240) 721-3000 for alternate
instructions.
FOR FURTHER INFORMATION CONTACT: Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-
3000 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone number above via TTY by
calling the toll-free Federal Information Relay Service at 1-877-889-
5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Regulatory Action
D. Summary of Costs and Benefits
III. Background and Authority
A. H.R.1--One Big Beautiful Bill Act
B. DHS General Rulemaking Authority
IV. Discussion of Changes Made in This IFR
A. Form I-94 Immigration Fee
B. Asylum Application Fee
C. Implementation and Administration of the Annual Asylum Fee
D. Implementation of the Limits of Employment Authorization
Based on Temporary Protected Status
E. Severability
F. Fee Waivers and Exemptions
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14192 (Unleashing Prosperity Through
Deregulation)
C. Regulatory Flexibility Act (Certification)
D. Unfunded Mandates Reform Act of 1995
E. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
Table of Abbreviations
AAF--Annual Asylum Fee
APA--Administrative Procedure Act
BLS--U.S. Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CFO Act--Chief Financial Officers Act
CFR--Code of Federal Regulations
CPI-U--Consumer Price Index for All Urban Consumers
CRA--Congressional Review Act
DHS--Department of Homeland Security
DOJ--Department of Justice
DOL--Department of Labor
EAD--Employment Authorization Document
E.O.--Executive Order
EOIR--Executive Office for Immigration Review
FR--Federal Register
FRN--Federal Register Notice
FY--Fiscal Year
H.R.1--One Big Beautiful Bill Act
HSA--Homeland Security Act of 2002
IFR--Interim Final Rule
INA--Immigration and Nationality Act
IPF--Immigration Parole Fee
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act
NTA--Notice to Appear
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act of 1980
RIA--Regulatory Impact Analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SIJ--Special Immigrant Juvenile
TPS--Temporary Protected Status
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this interim final rule. DHS also invites comments
that relate to the economic, environmental, or federalism effects that
might result from this interim final rule. Comments must be submitted
in English, or an English translation must be provided. Comments that
will provide the most assistance to USCIS in implementing these changes
will reference a specific portion of the interim final rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change. Comments submitted
in a manner other than the one listed above, including emails or
letters sent to DHS or USCIS officials,
[[Page 22953]]
will not be considered comments on the interim final rule and may not
receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0133 for this interim final rule. Please note all
submissions will be posted, without change, to the Federal eRulemaking
Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal
information you provide. Therefore, submitting this information makes
it public. You may wish to consider limiting the amount of personal
information that you provide in any voluntary public comment submission
you make to DHS. DHS may withhold information provided in comments from
public viewing that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy and Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2026-0133. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
On July 4, 2025, the President signed into law H.R.1--One Big
Beautiful Bill Act, Public Law 119-21, 139 Stat. 72 (``H.R.1''). H.R.1
was a comprehensive legislative package that changed many laws and
added new laws that touch many areas of the United States government.
Among those changes, the law established several new provisions and
fees to the Immigration and Nationality Act (INA). See H.R.1, Title X,
Subtitle A, Part I, Sections 100001 through 1000018. This IFR codifies
several of the H.R.1 immigration fee provisions and other limitations
on aliens.
Specifically, the IFR does the following: (1) codification in the
Code of Federal Regulations (CFR) of the Form I-94 fee requirement set
forth in 8 U.S.C. 1807 as it applies to USCIS; (2) codification of the
Annual Asylum Fee (AAF) requirement in 8 U.S.C. 1808, including
consequences for failure to pay the AAF and limitations related to
employment authorization required by 8 U.S.C. 1810(b); (3) codification
of the requirement that every asylum application include the fee
required by 8 U.S.C. 1802 at filing regardless of whether the
application is rejected, and is not refundable; and (4) codification of
the H.R.1 limits on the validity of Temporary Protected Status (TPS)
employment authorization required by 8 U.S.C. 1803(c) and 8 U.S.C.
1811(a).
B. Legal Authority
This rule is issued under section 208(d)(3) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1158(d); section 102 of the Homeland
Security Act of 2002 (HSA), 6 U.S.C. 112; and sections 100002 through
100018 of H.R.1, codified at 8 U.S.C. 1802 through 1815. These statutes
authorize DHS to administer the asylum process, and collect certain
fees as required by law.
DHS is issuing this rule as an interim final rule under the ``good
cause'' exception of 5 U.S.C. 553(b)(B), as prior notice and comment
would be impracticable and contrary to the public interest. H.R.1
requires immediate implementation to ensure compliance with the
statutory mandate and provides no discretion to DHS on the provisions
implemented in this rule.
C. Summary of the Regulatory Action
This rule codifies certain H.R.1 fee provisions applicable to
USCIS:
<bullet> Form I-94 Fee required by 8 U.S.C. 1807: Establishes a fee
requirement that, for USCIS, is applicable to the filing of Form I-102,
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document. New 8 CFR 103.7(d)(4).
<bullet> Annual Asylum Fee required by 8 U.S.C. 1808: Codifies the
requirement that an alien pay the AAF and establishes that,
procedurally, failure to pay within 30 days of notice results in
rejection of the pending asylum application and the denial of any
associated application for employment authorization. New 8 CFR
106.2(c)(15)(ii) and 208.3(c)(6).
<bullet> Retention of Asylum Application Fee required by 8 U.S.C.
1802: Codifies the fee requirement and provides that the asylum
application filing fee is retained by USCIS if a Form I-589 is
rejected. New 8 CFR 106.2(c)(14).
<bullet> TPS Employment Authorization Validity required by 8 U.S.C.
1803(c) and 8 U.S.C. 1811(a): Limits work authorization and any
associated employment authorization document under TPS to one year, or
the remaining period of designation if shorter, with conforming changes
to ensure consistency across DHS regulations. New 8 CFR 274a.12(a)(12)
and 274.12(c)(19).
D. Summary of Costs and Benefits
DHS also analyzed the costs and benefits of this rule. Because the
rule codifies statutory mandates or procedural processes, DHS estimates
minimal incremental cost beyond those imposed by Congress. Qualitative
benefits include improved fee transparency, reduced administrative
ambiguity, and enhanced enforcement efficiency consistent with the
goals of H.R.1.
III. Background and Authority
A. H.R.1--One Big Beautiful Bill Act
The H.R.1 Reconciliation Act of 2025 (H.R.1), Public Law 119-21,
established a new framework of immigration fees that Congress directed
DHS to implement beginning FY 2025.\1\ Congress intended H.R.1 to
ensure that aliens who apply for or maintain eligibility for
immigration benefits bear more of the costs of administering the
immigration system.\2\ In explaining its decision, Congress made clear
that these new fees were long overdue and necessary to recover the
growing costs of adjudicating the millions of pending asylum
applications before both USCIS, a component agency of DHS, and the
Department of Justice, Executive Office for Immigration Review
(EOIR).\3\ H.R.1 requires that these fees be applied commencing in FY
2025 ``in addition to any other fee authorized by law.'' \4\
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Unless otherwise described in this rule with respect to a specific fee,
the fees set forth in H.R.1 are imposed in addition to fees in 8 CFR
part 106, or any other fee promulgated by DHS under INA sec. 286(m), 8
U.S.C. 1356(m), and are not refundable. See 89 FR 6194 (Jan. 31, 2024);
90 FR 34511 (July 22, 2025). On July 22, 2025, USCIS published a
Federal Register notice (FRN) announcing the implementation of several
fees administered by USCIS mandated by H.R.1 (H.R.1 Fee notice). 90 FR
34511 (July 22, 2025).\5\ That notice implemented a minimum $100 asylum
application filing fee commencing in FY 2025 under 8 U.S.C. 1802 and a
minimum $100 annual asylum fee (AAF) starting in FY 2025 for each
calendar year an asylum application remains pending under 8 U.S.C.
1808. 90 FR 34511 (July 22, 2025). The notice also announced fees for
Temporary Protected Status (TPS), special immigrant juveniles (SIJs)
under 8 U.S.C. 1805, and certain categories of employment authorization
under 8 U.S.C. 1803(a)-(c). 90 FR 34511 (July 22, 2025).
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\1\ H.R.1, Public Law 119-21 (2025), 139 Stat. 221 (2025)
(codified at 8 U.S.C. 1802-1815).
\2\ Id.; H. Comm. on the Judiciary, Markup of H.R.1, 119th Cong.
(Apr. 30, 2025) (statement of Chairman Jordan), <a href="https://www.congress.gov/event/119th-congress/house-event/118180">https://www.congress.gov/event/119th-congress/house-event/118180</a>; Am. First
Policy Inst., Remarks of Chairman Jim Jordan, Conversation with Chad
Wolf (June 25, 2025), <a href="https://www.americafirstpolicy.com/issues/securing-the-border-restoring-the-law-a-conversation-with-rep-jim-jordan">https://www.americafirstpolicy.com/issues/securing-the-border-restoring-the-law-a-conversation-with-rep-jim-jordan</a>.
\3\ H.R. Rep No. 119-106, Book 1, at 843-856 (2025).
\4\ See 8 U.S.C. 1802(a) (``In addition to any other fee
authorized by law, the Secretary of Homeland Security or the
Attorney General, as applicable, shall require the payment of a fee,
equal to the amount specified in this section, by any alien who
files an application for asylum under section 208 (8 U.S.C. 1158) at
the time such application is filed.''); see also 8 U.S.C. 1803(a)(1)
(initial application for employment authorization under section
208(d)(2)); 8 U.S.C. 1803(b)(1) (initial application for employment
authorization filed by any alien paroled into the United States); 8
U.S.C. 1803(c)(1) (initial application for employment authorization
under section 244(a)(1)(B)); 8 U.S.C. 1805(a) (any alien, parent, or
legal guardian of an alien applying for SIJ status under section
101(a)(27)(J)); 8 U.S.C. 1808(a) (for each calendar year that an
alien's asylum application remains pending); 8 U.S.C. 1809(a) (any
parolee who seeks a renewal or extension of employment authorization
based on a grant of parole); 8 U.S.C. 1810(a) (any alien who has
applied for asylum for each renewal or extension of employment
authorization); 8 U.S.C. 1811(a) (renewal or extension of employment
authorization based on a grant of temporary protected status).
\5\ In furtherance of enacting the text of H.R.1, DHS published
multiple FRNs (90 FR 34511 (July 22, 2025), 90 FR 42025 (Aug. 28,
2025), 90 FR 43223 (Sept. 8, 2025), and 90 FR 48317 (Oct. 16, 2025))
announcing the new H.R.-1 fees that are administered by DHS
components.
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The USCIS notice also provides that USCIS will issue personal,
individualized notice to each asylum applicant with an application
pending with USCIS from whom the AAF is required, and that the notice
will include the amount of the fee, when and how the fee must be paid,
and the consequences of failure to pay.\6\ For the AAF due for FY 2025,
DHS has issued AAF notices that only state that failure to pay the fee
before the deadline may negatively affect the application, but do not
specify what will occur if the fee is not paid.\7\
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\6\ See new 8 CFR 106.2(15).
\7\ On October 30, 2025, the United States District Court for
the District of Maryland issued an order in Asylum Seeker Advocacy
Project v. United States Citizenship and Immigration Services, et
al., SAG-25-03299 (D. Md.), staying the Annual Asylum Fee (AAF)
implementation provisions by USCIS as provided in the July 22, 2026
notice. In accordance with the order, USCIS paused the issuance of
AAF notices. The stay was lifted on February 2, 2026. Once this rule
is effective, DHS will send notices to applicants who have not paid
informing them of how non-payment affects their application.
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The H.R.1 Fee notice expressly deferred announcement of multiple
statutory fees. Among them were: (1) the Immigration Parole Fee (IPF)
required by 8 U.S.C. 1804, which includes multiple enumerated statutory
exceptions, and (2) the Form I-94 fee required by 8 U.S.C. 1807
applicable to any alien who submits an application for a Form I-94
Arrival/Departure Record. 90 FR 34511 at 34516 (July 22, 2025). In both
cases, USCIS explained that further interpretation and guidance were
necessary before implementation could proceed. 90 FR 34511 (July 22,
2025). On October 16, 2025, DHS published an additional FRN to address
the Immigration Parole Fee (IPF) required by 8 U.S.C. 1804. 90 FR 48317
(Oct. 16, 2025). The IPF notice announced the new fee to be
administered by DHS components, including USCIS, and specified the
classes of applicants to whom the fee applies, the effective date of
the new requirement, and instructions for remitting payment. 90 FR
48317 (Oct. 16, 2025). It also described the circumstances under which
the fee exceptions may apply in accordance with the statutory
exceptions provided in H.R.1 and clarified the consequences for failure
to pay. 90 FR 48317 (Oct. 16, 2025). The IPF notice fulfilled the
commitment made in the H.R.1 Fee notice, which stated that the fee
mandated by 8 U.S.C. 1804, subject to multiple statutory exceptions
requiring agency interpretation, would be announced in a future
publication. 90 FR 34511 (July 22, 2025). By providing this follow-up
guidance, DHS ensured that members of the public received the necessary
information to comply fully with the new statutory mandate.
H.R.1 requires that DHS, beginning in FY 2026 and continuing for
each subsequent fiscal year, adjust the immigration-related fees for
inflation. H.R.1 prescribes that DHS use the percentage change to the
CPI-U for the month of July in the current year compared to the
preceding calendar year, and round each fee to the next lowest multiple
of $10 or down to the nearest dollar as authorized by H.R.1. In
furtherance of enacting the text of H.R.1, DHS components published
multiple FRNs announcing the new H.R inflationary increases (90 FR
52085 (Nov. 19, 2025), 90 FR 52425 (Nov. 20, 2025), and 90 FR 52693
(Nov. 21, 2025)).
B. DHS General Rulemaking Authority
The Secretary of Homeland Security's authority for the regulatory
amendment is found in various sections of the INA, 8 U.S.C. 1101 et
seq. and the Homeland Security Act of 2002 (HSA), 6 U.S.C. 101 et seq.
General authority for issuing this IFR is found in section 103(a) of
the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer
and enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority,\8\ as well as sections 102 of the HSA, 6 U.S.C. 112, which
vests all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\9\ In addition to the general
authority, the asylum-specific authority at INA sec. 208(d)(5)(B), 8
U.S.C. 1158(d)(5)(B), states that ``the Attorney General may provide by
regulation for any other conditions or limitations on the consideration
of an application for asylum not inconsistent with this chapter.'' \10\
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\8\ See 6 U.S.C. 522 (``Nothing in [the HSA], any amendment made
by [the HSA], or in section 1103 of Title 8, shall be construed to
limit judicial deference to regulations, adjudications,
interpretations, orders, decisions, judgments, or any other actions
of the Secretary of Homeland Security or the Attorney General.'').
\9\ Although several provisions of the INA discussed in this IFR
refer exclusively to the ``Attorney General,'' such provisions are
now to be read as referring to the Secretary of Homeland Security by
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note,
557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap, 586
U.S. 392, 397 n.2 (2019).
\10\ INA sec. 208(d)(5)(B).
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The H.R.1 text ``in addition to any other fee authorized by law''
is clear.\11\ H.R.1 fees do not supersede or replace the fee schedule
DHS promulgated in 8 CFR part 106 and related provisions, nor do they
limit DHS's authority under INA sec. 286(m), 8 U.S.C. 1356(m), to
recover the costs of providing adjudication and naturalization
services. The H.R.1 fees are a distinct set of statutory requirements
intended to raise revenue to support enforcement priorities, improve
public safety, and provide revenue to the Treasury while USCIS
continues to fund adjudicatory functions through its existing fee
authority. To interpret H.R.1 as supplanting the USCIS fees DHS
codified in 8 CFR part 106 would produce a large shortfall in USCIS'
operating revenue, compromise USCIS' ability to fund its operations,
and jeopardize service levels Congress has not indicated should be
curtailed.
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\11\ 8 U.S.C. 1801-1815.
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IV. Discussion of Changes Made in This IFR
This IFR expands upon the H.R. 1 Fee notice and the IPF notice to
more fully implement the H.R.1 fees related to USCIS. Congressional
intent, reflected in both the statutory text of H.R.1 and in the
accompanying legislative history, makes clear that these statutory
provisions were enacted to expeditiously strengthen immigration
enforcement and improve public
[[Page 22955]]
safety.\12\ The specific changes are as follows:
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\12\ H.R. Rep No. 119-106, Book 1, at 843-856 (2025).
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A. Form I-94 Immigration Fee
H.R.1 requires ``any alien who submits an application for a Form I-
94 Arrival/Departure Record to pay a minimum of $24.'' \13\ This new
fee shall be adjusted annually for inflation and is to be collected
``in addition to any other fee authorized by law.'' \14\ The statute
specifies that this fee ``shall not be waived or reduced.'' \15\ This
IFR codifies the new 8 U.S.C. 1807 fee requirement for applicants that
submit a Form I-94 Arrival/Departure Record and that the fee must be
submitted when the applicants request the Form I-94 in addition to the
fee required by 8 CFR 106.2(a)(2).\16\
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\13\ 8 U.S.C. 1807.
\14\ Id; see also, 90 FR 52085 (Nov. 19, 2025) (adjusting the
Form I-94 fee mathematically for inflation although no change was
made in the FY26 amount).
\15\ 8 U.S.C. 1807.
\16\ Id; see also new 8 CFR 103.7(d)(4).
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USCIS interprets the language ``submits an application for a Form
I-94'' in 8 U.S.C. 1807 to apply exclusively to scenarios where an
applicant files an application explicitly requesting a Form I-94
Arrival/Departure record. This interpretation limits USCIS' collection
of the Form I-94 fee solely to Form I-102, Application for Replacement/
Initial Nonimmigrant Arrival-Departure Document, or successor form, as
required by 8 U.S.C. 1807.\17\
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\17\ CBP also collects the I-94 fee under certain circumstances.
See CBP Immigration Fees Required by H.R.1 for Fiscal Year 2025, 90
FR 42025 (Aug. 28, 2025).
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USCIS recognizes that in many adjudications, the agency may create
or update an electronic Form I-94 record in its systems when approving
an application or petition that confers, extends, or changes a period
of authorized stay. However, this process is distinct from a direct
request for a Form I-94 through the filing of Form I-102. Accordingly,
as it pertains to USCIS' collection, the Form I-94 fee required by 8
U.S.C. 1807 is limited to cases involving the direct filing of Form I-
102 and does not extend to an adjudication that results in the
incidental creation or amendment of a Form I-94 record.\18\
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\18\ See new 8 CFR 103.7(d)(4).
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Form I-102, Application for Replacement/Initial Nonimmigrant
Arrival-Departure Document, is the application an alien requests the
issuance, replacement, or correction of a Form I-94. Form I-102 may be
filed for a range of reasons, as outlined in the USCIS form
instructions and codified at 8 CFR 264.6.\19\ These include the
``general filing'' category, which applies where an applicant requires
replacement of a lost, stolen, mutilated, or damaged Form I-94 or
otherwise needs a Form I-94 not covered by one of the specific
exceptions. In addition, applicants may file Form I-102 where U.S.
Customs and Border Protection (CBP) did not issue a Form I-94 at the
time of admission at a land border, airport, or seaport, where a
correction of a Forms I-94, I-94W, Nonimmigrant Visa Waiver Arrival/
Departure Record, or I-95, Alien Crew Landing Permit, is necessary
through no fault of the applicant, or where the record cannot be
retrieved electronically through CBP's website.\20\ Other categories
reflect special provisions for nonimmigrant members of the U.S. Armed
Forces, North Atlantic Treaty Organization (NATO) forces, or
Partnership for Peace programs, where initial requests may be exempt
from the underlying USCIS filing fee but subsequent requests remain
subject to it.\21\
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\19\ USCIS, Form I-102, ``Application for Replacement/Initial
Nonimmigrant Arrival-Departure Document'' (last updated Oct. 28,
2025), <a href="https://www.uscis.gov/i-102">https://www.uscis.gov/i-102</a>.
\20\ Under 8 U.S.C. 1807, the Form I-94 fee only applies to an
application for a Form I-94 Arrival/Departure Record. Accordingly,
although Form I-102 may be used to request replacement or correction
of a Form I-94, Form I-94W, or Form I-95, only requests involving a
Form I-94 are subject to the fee. See USCIS, Form I-102,
``Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document,'' Instructions 2-3 (Apr. 1, 2024) (identifying eligibility
for replacement or correction of Forms I-94, I-94W, and I-95); see
also 8 CFR 264.1(b) (identifying Forms I-94 and I-95 as evidence of
alien registration).
\21\ Id.; USCIS, Form G-1055, ``Fee Schedule'' (last updated
Oct. 28, 2025), <a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a>.
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Under 8 U.S.C. 1807 and new 8 CFR 103.7(d)(4), benefit requests
submitted on Form I-102, Application for Replacement/Initial
Nonimmigrant Arrival-Departure Document are subject to the new Form I-
94 fee, in addition to the existing DHS filing fees. Even in instances
where the DHS filing fee is waived or set at $0, the H.R.1 Form I-94
fee remains applicable.\22\ The only exception to the H.R.1 Form I-94
fee is for Form I-102 filings when the application is submitted to
correct a DHS error. The fees eligible for a waiver request under 8 CFR
106.3(a) do not include the H.R.1 Form I-94 fee.
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\22\ The fee does not apply when DHS issued an incorrect I-94 at
its fault because DHS has a responsibility to issue a replacement
for the Form I-94 it issued incorrectly. DHS utilizes the Form I-102
to track the development of the new, correct Form I-94 in its
system, but we do not consider the correction an application to
which 8 U.S.C. 1807 applies, and do not perform an adjudication
service to which a fee applies under 8 U.S.C. 1356(m).
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Table 1 shows the current USCIS paper filing fee for each Form I-
102 filing category, the additional minimum $24 H.R.1 Form I-94 fee,
and the total fee to be collected. This format follows the structure
used in the H.R.1 Fee notice and complements the parallel CBP notice
for the H.R.1 Form I-94 fee published August 28, 2025. 90 FR 34511
(July 22, 2025); 90 FR 42025 (Aug. 28, 2025).\23\
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\23\ See also, 90 FR 52085 (making no change in the FY26 amount
of the Form I-94 fee).
\24\ This fee shall be adjusted annually for inflation per 8
U.S.C. 1807.
Table 1--Form I-102 Fees Under 8 U.S.C. 1807
----------------------------------------------------------------------------------------------------------------
Minimum H.R.1
Filing category/general reason Current USCIS form I-94 fee Total fee
fee \24\
----------------------------------------------------------------------------------------------------------------
General Filing (lost, stolen, mutilated, damaged, or other $560 $24 $584
reasons not covered elsewhere).................................
Nonimmigrant member of U.S. armed forces--Request for initial 0 24 24
Form I-94......................................................
NATO armed forces/civil component--Request for initial Form I-94 0 24 24
Partnership for Peace under SOFA--Request for initial Form I-94. 0 24 24
Replacement for USCIS error..................................... 0 0 0
----------------------------------------------------------------------------------------------------------------
[[Page 22956]]
B. Asylum Application Fee
1. Background and Statutory Context
In this rule, DHS codifies the asylum application fee requirement
set forth in 8 U.S.C. 1802,\25\ and provides that USCIS will retain the
asylum application fee when a Form I-589 is rejected for any reason
consistent with 8 CFR 103.2. Currently, a Form I-589 is filed as an
incomplete application if it does not include a signature, does not
include a response to the questions on the form, or is missing required
evidence or materials. 8 CFR 208.3(c). DHS is adding in 8 CFR 208.3(c)
that a filed Form I-589 is also incomplete if it does not include the
asylum application fee, which is consistent with DHS's other
regulations. DHS is also adding the asylum application fee to 8 CFR
103.7 which is subject to submission requirements in 8 CFR 103.2.
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\25\ See new 8 CFR 106.2(c)(14). Per 8 U.S.C. 1802(d), fifty
percent of the fees received by USCIS will be credited to USCIS and
fifty percent to EOIR.
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INA sec. 208 establishes the statutory framework for asylum
applications and requires the Government to impose ``fees for the
consideration of an application for asylum.'' \26\ The asylum
application fee required by 8 U.S.C. 1802 is due at the time the
application is filed and provides that the fee may not be waived or
reduced.\27\ In the H.R.1 Fee notice, USCIS implemented 8 U.S.C. 1802
by announcing the initial minimum $100 asylum application fee and
clarifying that I-589 filings must include the new fee or they will be
rejected if the fee is missing. 90 FR 34511 (July 22, 2025). However,
that notice did not address applications that are received by USCIS and
therefore filed,\28\ but subsequently rejected under 8 CFR 103.2(a)(7)
or returned under 8 CFR 208.3(c).
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\26\ INA sec. 208(d)(3); 8 U.S.C. 1158(d)(3).
\27\ 8 U.S.C. 1802(a), (e).
\28\ Consistent with CFR 208.4(a)(2)(ii), USCIS considers an
asylum application filed on the date that USCIS receives it. And
consistent with 8 CFR 208.3(c), a filed asylum application may
subsequently be deemed complete or incomplete and rejected or
returned to the applicant.
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DHS regulations require that a form must be executed in accordance
with the form instructions and filed with the fee(s) required by
regulation, and filing fees are non-refundable, except at the
discretion of USCIS. 8 CFR 103.2(a)(1). In addition, regulations
provide that USCIS records the receipt date as of the actual date of
physical receipt of a benefit request, a rejected request will not
retain a receipt date, and a request will be rejected if not submitted
with the correct fee. 8 CFR 103.2(a)(7)(ii)(D). Those filing
requirements and receipt rules have been in place for benefit request
filings since at least 1964.\29\ For the purpose of 8 CFR 103.2(a)(7),
USCIS has long defined the term ``rejected'' to mean that the benefit
request and fee payment are returned for failure to comply with all
filing requirements without being fully considered, and can be re-filed
when properly completed. See, e.g., Immigration Benefits Business
Transformation, Increment I, 76 FR 53764, 53770 (August 29, 2011).\30\
However, the term ``rejection'' is not codified, defined, or
promulgated in DHS regulations. ``Denied,'' on the other hand,
generally means that the request is fully adjudicated and considered,
and the requestor is determined ineligible for the benefit sought. Id.
Denied is also defined only in practice and not codified.\31\
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\29\ 29 FR 11956 (Aug. 21, 1964) (final rule codifying 8 CFR
103.2(a)(1) that provided that every application shall be executed
and filed in accordance with the instructions on the form,
applications received shall be stamped to show the time and date of
their actual receipt and regarded as filed when so stamped unless
returned as improperly executed).
\30\ The only exception is when an appeal filed by a requestor
not entitled to file is rejected, the filing fee will not be
refunded. 8 CFR 103.3(a)(2)(v)(A)(1).
\31\ 8 CFR 103.2 uses the terms filed and submitted as synonyms.
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Consistent with the discretion provided in 8 CFR 103.2(a)(1)
regarding the non-refundability of fees, DHS is providing that if an
asylum application is rejected, the asylum application fee will be
retained and not returned or refunded when a filed asylum application
is rejected. See new 8 CFR 106.2.
DHS is retaining the fee both for legal and practical reasons.
First, such treatment is directed by H.R.1 given the requirement in 8
U.S.C. 1802 that each application when filed must include the fee.
H.R.1 provides that DHS shall require the payment of a $100 fee by any
alien who files an application for asylum at the time such application
is filed. 8 U.S.C. 1802(a). That provision requires a fee at the time
of the application without regard for the services DHS must provide or
the applicant must receive in exchange for the fee or how the fee is
treated if the application is denied, rejected, abandoned, delayed,
etc. Id.\32\ On the other hand, the lack of a statutory link in H.R.1
to the services DHS must provide contrasts with INA 286(m), 8 U.S.C.
1356(m) that provides that DHS may set benefit request fees to recover
the costs of providing such services. DHS has interpreted ``fees for
providing adjudication and naturalization services'' in section 1356(m)
as meaning the fee is required for the provision of a service, in
effect, an adjudication of the filed request. When the request is
rejected and the only service performed is to determine if it is
minimally acceptable, no fee is due, and the fee is returned.\33\
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\32\ 8 U.S.C. 1802(e) also provides that there is no waiver or
reduction of this fee. DHS has codified multiple fee exemptions
utilizing the fee-setting authority in INA sec. 286(m), 8 U.S.C.
1356(m) because that provision does not require USCIS to charge a
fee and DHS may set fees at less than full cost or provide services
for free. See 8 CFR 106.3(c). The statute does not use the word
``exemption,'' but DHS has exercised its discretion to provide free
services using that term. Consistent with that interpretation, DHS
interprets ``shall not be waived or reduced'' in multiple provisions
of H.R.1 as precluding fee exemptions, $0 fees, or no fee,
regardless of the words exempt or exemption not being in the
statute.
\33\ When DHS has determined the fee should not be returned it
has codified retention. See 8 CFR 103.3(a)(2)(v)(A)(1) (providing
that USCIS does not refund the filing fee when it rejects an appeal
filed by a person or entity not entitled to file an appeal).
---------------------------------------------------------------------------
Next, retention of the H.R.1 asylum application fee promotes
deterrence of defective filings, recoups intake costs, and concretely
advances Congress's expressed intent to resource enforcement and ensure
aliens, not American taxpayers, bear specified administrative
costs.\34\ The H.R.1 Fee notice implementation details (effective
dates, payment mechanics, and rejection for missing fees) are
consistent with this reading. In this IFR, DHS establishes regulations
with the force and effect of law to provide for retention of filing
fees when asylum applications are rejected, to include when an asylum
application is rejected due to nonpayment of the AAF.\35\
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\34\ Id.; Further Consolidated Appropriations Act, Public Law
118-47 (Mar. 23, 2024); Joint Explanatory Statement, Division C,
Department of Homeland Security Appropriations Act, Public Law 118-
47 (Mar. 22, 2024) (appropriating funds to USCIS to address the
affirmative asylum application backlog); 8 CFR 208.4(a)(5)(v).
\35\ Id.
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DHS is also referencing 8 CFR 103.2 which provides some
administrative discretion to USCIS to refund a fee if the agency
determines that is appropriate. For example, in the past, USCIS on a
rare occasion has erroneously requested that an individual file an
unnecessary form along with the associated fee. Another example is
where an individual pays a required fee more than once or otherwise
pays a fee in excess of the amount due and USCIS accepts the incorrect
overpayment. Therefore, DHS references 8 CFR 103.2 noting that while
the fee will be retained and not returned or refunded when a filed
asylum application is rejected, DHS's existing regulations provide
limited refunds at DHS discretion.
[[Page 22957]]
2. Summary of Regulatory Text Changes
DHS adopts the following regulatory changes to implement H.R.1's
asylum application fee under 8 U.S.C. 1802 and to clarify the retention
of the fee upon rejection:
<bullet> New 8 CFR 106.2(c)(14): Codifies that the new Asylum
Application Fee is due at filing, and if a Form I-589 is rejected,
USCIS will retain the fee and that it will be consistent with 8 CFR
103.2.
C. Implementation and Administration of the Annual Asylum Fee
1. AAF Background
On July 22, 2025, USCIS published the H.R.1 Fee notice implementing
8 U.S.C. 1808 by announcing how the AAF would be administered for FY
2025 and beyond. 90 FR 34511 (July 22, 2025). H.R.1 requires all asylum
applicants with pending asylum applications to pay a minimum $100
annual fee for each calendar year the application ``remains pending,''
in addition to any other applicable fee. 8 U.S.C. 1808.
In the H.R.1 Fee notice, DHS interpreted the statutory phrase
``remains pending'' to encompass any Form I-589 filed with USCIS or DOJ
and that remains pending with any federal government agency, court, or
entity with jurisdiction over asylum claims. 90 FR 34511 (July 22,
2025). The notice further clarified that the initial minimum $100 AAF
must be paid by asylum applicants whose applications had been filed
with USCIS on or before October 1, 2024, and that were still pending at
the close of FY 2025 on September 30, 2025. 90 FR 34511 (July 22,
2025). In doing so, USCIS provided several months' notice to impacted
applicants that they would be subject to a fee if they chose to pursue
their application through and beyond September 2025.
The H.R.1 Fee notice also explained how the AAF applies in
subsequent years. For asylum applications pending during the entirety
of FY 2025, the AAF would become due on September 30 for each
subsequent year that the application remains pending. For Forms I-589
filed after October 1, 2024 that remain pending for 365 days after
filing, the AAF becomes due annually on the one-year anniversary of the
filing date each year the application remains pending. 90 FR 34511
(July 22, 2025). USCIS determined that H.R.1 does not impose the AAF
retroactively for years prior to FY 2025, but that the plain language
of 8 U.S.C. 1808 requires applying the minimum $100 fee to applications
that were already pending at the start of FY 2025. 90 FR 34511 (July
22, 2025). In reaching this conclusion, USCIS cited established
principles of statutory interpretation and U.S. Supreme Court case law,
Landgraf v. USI Film Products, which distinguishes between
impermissible retroactive rules and prospective procedural changes. 90
FR 34511 (July 22, 2025). Because H.R.1 expressly mandated that the AAF
``shall'' apply beginning in and for FY 2025, applying the requirement
to pending cases as of October 1, 2024, was deemed consistent with both
congressional intent and case law. 90 FR 34511 (July 22, 2025).
Finally, the July notice established USCIS' administrative process
for collecting the AAF. For FY 2025, consistent with the H.R.1 Fee
notice, USCIS sent individual, personalized notices to asylum
applicants with pending cases, identifying the amount owed, the time
period in which to pay the fee, the method of payment, and the
consequences of failure to pay. 90 FR 34511 (July 22, 2025). USCIS
requires the AAF to be paid online through the agency's electronic fee
payment system. The framework established by USCIS was designed to
facilitate compliance by applicants, to make the AAF process
unconfusing and as un-burdensome as possible, and to ensure the
government can reliably administer the new statutory requirement across
all pending asylum applications. 90 FR 34511 (July 22, 2025).
2. Consequences of Failure To Pay the AAF
i. Summary of Consequences
H.R.1 requires, and this IFR codifies in regulation, for FY 2025
and beyond, payment of the AAF for each calendar year that an asylum
application remains pending. 8 U.S.C. 1808. The statute mandates
collection and enforcement of the AAF and prohibits waivers. 8 U.S.C.
1808. Regulatory codification of the consequences for failure to pay
the AAF is essential to give clarity to applicants and give effect to
Congress's mandate. USCIS has never required an annual fee for an
application or petition that is pending with USCIS. Therefore, USCIS
cannot rely on current or past practice to determine the consequences
for nonpayment of the AAF. A clearly defined regulatory consequence
implements the statutory requirement most effectively because the
statutory requirement would risk becoming ineffective, allowing
applicants to avoid their obligations while maintaining pending asylum
claims indefinitely.\36\ Such a result would undercut H.R.1's purpose,
create inequities between compliant and non-compliant applicants, and
fail to place costs on applicants rather than being subsidized by fees
paid by legal immigrants.\37\ Pursuant to H.R.1 sec. 100018, INA sec.
208(d)(3) was amended to require that USCIS ``impose fees for the
consideration of an application for asylum.'' One of those mandatory
fees is the AAF. 8 U.S.C. 1808. Without established consequences for
failure to pay the AAF, USCIS would be required to adjudicate an asylum
application without statutory authority or keep applications with
unpaid AAFs in the backlog indefinitely.
---------------------------------------------------------------------------
\36\ INA sec. 208, 8 U.S.C. 1158; see also 8 U.S.C. 1808.
\37\ H.R. Rep No. 119-106, Book 1, at 859 (2025).
---------------------------------------------------------------------------
DHS codifies in this rule that, following individualized notice and
a 30-day window for online payment, failure to pay the AAF results in
rejection of the pending Form I-589.\38\ Rejection results in the
termination of the asylum application with USCIS, meaning that USCIS
will take no further action on the application. If the alien wishes to
reapply for asylum, he or she will need to file a new Form I-589,
including a new mandatory filing fee as required by 8 U.S.C. 1802. If
the alien maintains lawful status, USCIS will not issue a Notice to
Appear (NTA) or initiate removal solely based on the AAF
nonpayment.\39\ If the alien lacks lawful status, DHS will either
initiate expedited removal under INA sec. 235(b), 8 U.S.C. 1225(b),
where the applicant is amenable to expedited removal, or issue an NTA
under INA sec. 239, 8 U.S.C. 1229, in other cases.\40\ Consistent with
existing asylum jurisdiction rules, once the NTA is filed after
rejection, any subsequent defensively filed Form I-589 is submitted to
and adjudicated by an immigration judge under 8 CFR 1208.2(b). If the
alien maintains lawful status, USCIS will reject Form I-589 for
nonpayment but will only issue an NTA if the facts support a charge of
removability.\41\
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\38\ See new 8 CFR 106.2(c)(15); new 8 CFR 208.3(c)(3), (a)(6);
and 8 U.S.C. 1808.
\39\ See 8 U.S.C. 1229(a).
\40\ Id.; INA sec. 235(b), 8 U.S.C. 1225(b); 8 CFR 235.3(b); INA
sec. 239, 8 U.S.C. 1229.
\41\ See INA sec. 239(a)(1); 8 U.S.C. 1229(a)(1) (providing for
general information needed for NTA issuance).
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Further, rejection for nonpayment will stop the asylum employment-
authorization clock under new 8 CFR 208.7(a)(1)(i) as the application
will no longer be pending. Further, any pending application for
employment authorization under 8 CFR 274a.12(c)(8) would be rejected or
denied per new 8 CFR 208.7(a)(1)(iii) and (iv). Upon
[[Page 22958]]
rejection of the asylum application by USCIS, any existing employment
authorization pursuant to 8 CFR 274a.12(c)(8) will terminate
immediately per new 8 CFR 208.7(b)(1). Per 8 U.S.C. 1810(b)(2) and new
8 CFR 208.7(b)(2), if the asylum application is denied or rejected by
an immigration judge at EOIR, the employment authorization will
terminate immediately on the date that is 30 days after the date of
denial or rejection, unless the alien makes a timely appeal to the
Board of Immigration Appeals. Per 8 U.S.C. 1810(b)(3) and new 8 CFR
208.7(b)(3), if the Board of Immigration Appeals denies an appeal of a
denial or rejection of an asylum application, employment authorization
will terminate immediately.\42\
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\42\ 8 U.S.C. 1810(b)(1)-(3); see new 8 CFR 208.7(b)(1)-(3),
(a)(2); 8 CFR 274a.12(c)(8).
---------------------------------------------------------------------------
ii. Summary of Regulatory Text Changes
DHS adopts the following amendments to 8 CFR part 208 to implement
H.R.1's AAF requirement:
<bullet> 8 CFR 208.3(c)(3) and (6) (filing consequences): \43\ This
IFR clarifies that even if an application is initially accepted as
complete, upon non-payment of the AAF, it will be considered incomplete
and rejected by USCIS. Further, upon rejection, accrual of time toward
the period after which the applicant may file an application for
employment authorization is stopped.
---------------------------------------------------------------------------
\43\ DHS also divides 8 CFR 208.3(c) in this rule into more
paragraphs to make it less dense and more readable, without making
changes to its substance.
---------------------------------------------------------------------------
<bullet> 8 CFR 208.7(a)(1) (consequences of rejected application--
new language added): As amended, this provides that USCIS will reject
an application for employment authorization submitted by an applicant
whose asylum application has been previously denied or rejected.
Further, if an asylum application is denied or rejected prior to a
decision on a pending application for employment authorization, the
application for employment authorization will be denied.
<bullet> 8 CFR 208.7(b)(1) through (3) (consequences of rejected
application--new language added):
[cir] Pursuant to 8 U.S.C. 1810(b)(1) through (3), employment
authorization will terminate immediately upon denial or rejection of an
asylum application by USCIS (which does not include asylum applications
referred to an immigration judge); or
[cir] On the date that is 30 days after the date on which an
immigration judge denies an asylum application, unless the alien makes
a timely appeal to the Board of Immigration Appeals; or
[cir] Immediately following the denial by the Board of Immigration
Appeals of an appeal of a denial or rejection of an asylum application.
iii. Rejection of a Pending Asylum Application for Failure To Pay the
AAF
a. DHS Authority Under H.R.1 and INA Sec. 208
Section 208 of the INA, 8 U.S.C. 1158, establishes the statutory
framework governing asylum applications and related procedures. Section
208(a) provides a general statement that any alien physically present
in or arriving at the United States may apply for asylum, either
pursuant to section 208 or section 235 where applicable, and also
provides exceptions describing certain aliens who are not eligible to
apply for asylum. Section 208(b) defines the standards for granting
asylum and permits DHS to establish additional limitations and
conditions under which an alien will be ineligible for asylum.\44\
Section 208(d) sets procedural requirements and expressly authorizes
the Government to impose ``fees for the consideration of an application
for asylum'' and ``fees for employment authorization under this
section,'' and permits DHS to ``provide by regulation for any other
conditions or limitations on the consideration of an application for
asylum.'' \45\
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\44\ INA sec. 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
\45\ INA sec. 208(d)(3) and (5), 8 U.S.C. 1158(d)(3) and (5).
---------------------------------------------------------------------------
Congress thus recognized that an alien's pursuit of asylum status
before DHS is contingent on the payment of reasonable administrative
fees and that failure to comply with such procedural requirements
renders any attempted asylum application a nullity because DHS is
unable to consider it.\46\ As such, section 208 of the INA permits DHS
to condition the continued pendency of an asylum application--and
retention of benefits associated with it--on compliance with
established fee obligations.\47\ H.R.1's requirement that DHS collect
the AAF for each year an application remains pending operates squarely
within the bounds of section 208 of the INA.\48\ Thus, DHS codifies
that failure to pay the AAF within a 30-day payment period will result
in consequences consistent with both the procedural requirements of the
asylum statute and the immigration enforcement purpose of H.R.1
previously described in its H.R.1 Fee notice.\49\ 90 FR 34511 (July 22,
2025).
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\46\ Id.
\47\ Id.
\48\ Id.
\49\ See new 8 CFR 106.2(c)(15), 8 CFR 208.3(c)(3) and (c)(6), 8
CFR 208.7(a)(1) and (b)(1)-(2); H. Comm. on the Judiciary, Markup of
H.R.1, 119th Cong. (Apr. 30, 2025) (statement of Chairman Jordan),
<a href="https://www.congress.gov/event/119th-congress/house-event/118180">https://www.congress.gov/event/119th-congress/house-event/118180</a>.
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b. Rejection Aligns With USCIS Filing Rules and Administrative Practice
USCIS' general filing regulations require that any benefit request
be submitted ``in accordance with the form instructions and applicable
regulations,'' which include fee requirements.\50\ USCIS regulations
also provide that a benefit request ``will be rejected'' if it is
submitted with an incorrect fee, no fee, or otherwise fails to satisfy
required fee payment conditions--codifying the longstanding practice of
rejecting filings that do not include proper fees.\51\ Fees are a
filing prerequisite and USCIS may reject filings that do not meet fee
requirements prescribed by statute, regulation, or form
instructions.\52\ Because 8 U.S.C. 1808(b) ties fee payment to each
year the application ``remains pending,'' the administrable, logical,
and uniform consequence for nonpayment--after individualized notice and
a 30-day payment period--is rejection rather than allowing it to remain
pending for consideration contrary to the applicable statutes.\53\ 90
FR 34511 (July 22, 2025).
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\50\ 8 CFR 103.2(a)(1) (requiring compliance with form
instructions and regulations, including fees).
\51\ 8 CFR 103.2(a)(7)(ii) (benefit request will be rejected if
not accompanied by the proper fee or if an incorrect fee is
submitted); see also 8 CFR part 106 (USCIS fee regulations).
\52\ 8 CFR 103.2(a)(7)(ii)(A) and 106.1(a).
\53\ 8 U.S.C. 1808; INA sec. 208(d)(3), 8 U.S.C. 1158(d)(3); see
new 8 CFR 106.2(c)(15)(ii), 8 CFR 208.3(c)(3) and (6).
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c. Rejection for Failure To Pay Is Consistent With the Best
Interpretation of 8 U.S.C. 1808(b)
Congress intended 8 U.S.C. 1808 to have operative effect such that
failure to pay the AAF would carry meaningful consequences. Under
settled principles of statutory construction, including the rule
against superfluities, a statute must be interpreted so that each
provision is given effect.\54\ Reading 8 U.S.C. 1808 to impose a
mandatory annual fee without consequence for nonpayment would render
the provision a nullity, contrary to Congress' intent.\55\
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\54\ Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A statute should
be construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or insignificant .
. .'').
\55\ Id.
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DHS further interprets H.R.1's silence regarding the specific
consequence for nonpayment of the AAF consistent with longstanding
USCIS practice. USCIS has consistently required that benefit requests
be accompanied by proper fee payment as a condition of filing and
[[Page 22959]]
routinely rejects benefit requests that do not include the proper
fee.\56\ This well-established framework for requiring payment of the
proper fee predates H.R.1 and is reflected in existing DHS
regulations.\57\ As such, DHS thinks the best reading of the statute is
that Congress, in enacting the AAF requirement, presumed that USCIS
would apply its existing practice for fee compliance and did not see a
need to codify the consequences for nonpayment explicitly in the
statute. Accordingly, DHS interprets 8 U.S.C. 1808 to operate in
concert with existing USCIS fee practice, under which noncompliance
with fee requirements results in rejection of the benefit request.\58\
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\56\ 8 CFR 103.2(a)(1) and (7)(ii); U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements, Final Rule, 89 FR 6194
(Jan. 31, 2024) (reaffirming fee-compliance prerequisites).
\57\ Id.
\58\ Id.
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Thus, DHS believes the best interpretation of H.R.1's AAF mandate,
when read together with INA sec. 208, is to require fee compliance as a
condition of continued pendency and USCIS' consideration of the asylum
application.\59\ Interpreting INA sec. 208(d)(3) and 8 U.S.C. 1808(b)
to authorize rejection of a Form I-589 for nonpayment after notice and
a 30-day payment period is the best reading because Congress tied an
annual fee to each year an application ``remains pending,'' thereby
making ongoing pendency and USCIS' consideration of the application
after such year contingent on payment.\60\ 90 FR 34511 (July 22, 2025).
This construction also satisfies the reasoned decisionmaking standard
because it directly advances Congress's cost-recovery and deterrence
objectives through a clear, administrable trigger.\61\ Further, this
interim final rule will not have retroactive effect because it does not
``impair rights a party possessed when he acted, increase a party's
liability for past conduct, or impose new duties with respect to
transactions already completed.'' \62\ The triggering event is the
pendency of the application for one year as of a date after enactment
and the continued pendency of the application. The earliest any AAF
payments became due was the close of FY 2025 and the specific
consequences articulated in the rule will not be applied until an
applicant receives notice of such consequences under the rule and a 30-
day opportunity to fulfill the requirement. As such, timely payment is
a prospective requirement, not an impermissible retroactive penalty.
Accordingly, codifying rejection for AAF nonpayment implements the best
interpretation of INA sec. 208(d)(3) and 8 U.S.C. 1808(b).\63\
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\59\ Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
(rejecting Chevron deference and requiring courts--and by extension
agencies in rulemaking--to adhere to the best reading of the
statute).
\60\ 8 U.S.C. 1808; INA sec. 208(d)(3), 8 U.S.C. 1158(d)(3).
\61\ See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
\62\ Landgraf v. USI Film Prods., 511 U.S. 244 (1994)
(prospective procedural rules are not impermissibly retroactive); 8
U.S.C. 1808 (effective in FY 2025 and thereafter).
\63\ INA sec. 208(d)(3), 8 U.S.C. 1158(d)(3); 8 U.S.C. 1808.
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d. Nonpayment Will Result in the Rejection or Denial of Applications
for Employment Authorization or Immediate Termination of Previously
Approved Employment Authorization
Under this final rule, failure to pay the AAF required by 8 U.S.C.
1808 results in rejection of the pending asylum application pursuant to
new 8 CFR 106.2(c)(15)(ii) and new 8 CFR 208.3(c)(3). Consistent with
that determination, rejection for failure to pay the AAF will result in
the termination of accrual of time toward employment authorization
eligibility under new 8 CFR 208.3(c)(3)(i) and 8 CFR 208.7(a)(1)(i).
Further, rejection of the Form I-589 for failure to pay the AAF will
result in the rejection or denial of any related application for
employment authorization still pending under new 8 CFR 208.7(a)(1)(iii)
or (iv), or the immediate termination of related employment
authorization as required by 8 U.S.C. 1810(b)(1) and new 8 CFR
208.7(b)(1).\64\ These consequences will require asylum applicants to
meet the fee obligations in the law while still maintaining their
pending asylum claims. These changes ensure that both a denial and a
rejection of a Form I-589, result in the same consequence for purposes
of employment authorization eligibility under 8 CFR 274a.12(c)(8).
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\64\ See new 8 CFR 208.7(a)(1), and (b)(1)-(2); 8 U.S.C.
1810(b)(1).
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iv. Alternative Consequences for Nonpayment of the AAF Considered
DHS evaluated several alternatives to the adopted consequence
framework to ensure the rule reflects the best interpretation of H.R.1
and the INA and satisfies the Administrative Procedure Act (APA)'s
requirement for reasoned decisionmaking.\65\ For the reasons explained
below, DHS concluded that the selected approach--rejection for
nonpayment of the AAF (and possibly NTA issuance or initiation of
expedited removal where applicable) best effectuates H.R.1's
enforcement and deterrence purposes and is administratively superior to
the following alternatives considered.
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\65\ Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
(requiring the best interpretation of the statute); Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)
(reasoned decisionmaking).
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a. Denial for AAF Nonpayment in Lieu of Rejection
DHS considered treating nonpayment as grounds for denial under 8
CFR 103.2(a)(7)(ii)(D)(1) rather than a rejection tied to a statutory
filing condition. Using rejection for a fee-compliance defect fits the
existing 8 CFR 103.2 framework, in which filings ``must be executed and
filed in accordance with the form instructions and applicable
regulations,'' including fee requirements, and ``will be rejected'' if
submitted with an incorrect or missing fee.\66\ Further, a denial in
lieu of a rejection could trigger motions processes under 8 CFR 103.3
and 103.5, adding layers of procedure and delay inconsistent with
H.R.1's direction that the AAF accompany each year an application
``remains pending.'' \67\ Finally, current asylum regulations \68\
contemplate denial of an I-589 where the applicant is maintaining
lawful immigration status or is in a valid period of parole.
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\66\ 8 CFR 103.2(a)(1) and (7)(ii); 8 CFR 208.7(a)(2).
\67\ 8 U.S.C. 1808.
\68\ See, e.g., 8 CFR 208.14(c) (d).
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b. Rejection With No NTA and a Bar on Refiling Asylum
DHS also considered an alternative where an unpaid AAF would result
in rejection, with no subsequent NTA but with a prohibition on refiling
a Form I-589 with USCIS. DHS rejected this alternative because a
categorical bar on refiling would potentially require an
administratively burdensome process for evaluating exceptions in order
to maintain consistency with INA section 208(a)(1), 8 U.S.C.
1158(a)(1). Additionally, a blanket refile ban would be difficult to
administer fairly and could preclude bona fide protection claims,
contrary to the statute's humanitarian purpose.\69\ Issuing an NTA or
initiating expedited removal provides a path for aliens to present
their bona fide protection claims either before an immigration judge
with authority to grant withholding of removal or protection under the
Convention against Torture, or an
[[Page 22960]]
asylum officer with authority to conduct a fear screening.\70\
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\69\ INA sec. 208(b), 8 U.S.C. 1158(b).
\70\ 8 CFR 208.16(a) and (c)(4); 8 CFR 208.17(b); 8 CFR
208.18(b).
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c. Holding Applications in Abeyance Until AAF Is Paid
DHS also considered holding applications in abeyance upon
nonpayment (i.e., no decision, no rejection, and no charging interest),
thereby keeping the case pending until the mandatory AAF fee is paid.
This approach was rejected because it would allow indefinite pendency
notwithstanding noncompliance, frustrating H.R.1's requirement that the
annual fee accompany each year an application ``remains pending.'' \71\
The structure of the AAF also demonstrates Congress's concern with
asylum applicants filing Form I-589 to baselessly avoid removal and
obtain employment authorization while relying on the asylum backlog or
using dilatory tactics to avoid a final adjudication of their
application. Were DHS to hold Form I-589 applications in indefinite
abeyance for failure to pay the AAF, this would exacerbate the very
problem that Congress intended to address. Abeyance also would
exacerbate backlogs and resource strain rather than advance H.R.1's
enforcement and cost-recovery objectives, contrary to the APA's
expectation of prompt administrative disposition.\72\ In short,
abeyance would preserve or worsen the very incentives H.R.1's AAF was
designed to counteract and therefore not appropriate. 8. U.S.C. 1808.
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\71\ 8 U.S.C. 1808. It is also consistent with past USCIS fee
requirements to reject a pending request at the point the fee that
was paid is determined to have been the incorrect amount. See 8 CFR
103.2(a)(7)(ii)(D) (providing that when USCIS begins to adjudicate a
request and determines the correct fee was not paid, that request
may be rejected or denied).
\72\ 5 U.S.C. 555(b) (``With due regard for the convenience and
necessity of the parties or their representatives and within a
reasonable time, each agency shall proceed to conclude a matter
presented to it.''); see Telecomms. Research & Action Ctr. (TRAC) v.
FCC, 750 F.2d 70 (D.C. Cir. 1984).
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D. Implementation of the Limits on Employment Authorization Based on
Temporary Protected Status
1. H.R.1 Text Limiting Validity of Employment Authorization
Congress enacted H.R.1, in part, to specify new, uniform limits and
fees for employment authorization and employment authorization periods
in connection with TPS.\73\ 8 U.S.C. 1803(c) provides that each initial
TPS-based employment authorization ``shall be valid for a period of 1
year, or for the duration of the alien's temporary protected status,
whichever is shorter,'' and imposes an additional fee for an alien who
files an initial TPS EAD application that may not be waived or reduced.
8 U.S.C. 1811(a) likewise provides that any employment authorization
for an alien granted TPS, or any renewal or extension of such
authorization, ``shall be valid for a period of 1 year or for the
duration of the designation of temporary protected status, whichever is
shorter,'' and establishes a renewal or extension fee that may not be
waived or reduced. By their terms, these provisions cap TPS-related
work authorization at one year or the remaining designation, whichever
is shorter, with no TPS-specific exception to exceed the cap.\74\
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\73\ 8 U.S.C. 1803(c) and 1811; INA sec. 244; 8 CFR 244.5; 8 CFR
274a.12.
\74\ 8 U.S.C. 1803(c) and 1811(a).
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In its H.R.1 Fee notice, USCIS summarized these TPS employment
authorization fee provisions and restated the one-year-or-duration of
designation validity rules for initial and renewal/extension filings,
noting the statutory prohibition on waiver of the H.R.1 fees and the
separate preexisting regulatory fee that may still be waived under 8
CFR part 106. 90 FR 34511 (July 22, 2025). Thereafter, USCIS began
applying the validity rules to TPS-based employment authorization.\75\
This IFR updates DHS regulations at 8 CFR parts 244 and 274a to conform
to the statutory mandate in H.R.1.
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\75\ Given that some TPS designations in effect at the time
H.R.1 was signed into law in July 2025 exceeded 12 months, USCIS
calculated the H.R.1 caps from the date of adjudication and back-
dated renewal EADs to the expiration date of the previous EAD to
ensure against gaps in employment authorization documentation. Since
that time, as several TPS designations have terminated and the
remaining do not exceed 12 months, there is no longer a need for
USCIS to continue this mitigation measure.
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2. INA Sec. 244 and Prior Practice
INA sec. 244, 8 U.S.C. 1254a, authorizes the Secretary to designate
countries for TPS, to grant TPS to eligible nationals, and to provide
benefits to an alien in TPS status including eligibility for employment
authorization. INA sec. 244(a)(1), 8 U.S.C. 1254a(a)(1) states that the
Secretary ``may grant the alien temporary protected status'' and
``shall authorize the alien to engage in employment in the United
States and provide the alien with an employment authorized endorsement
or other appropriate work permit.'' INA sec. 244(a)(2), 8 U.S.C.
1254a(a)(2), adds that the work authorization associated with TPS
``shall be effective throughout the period the alien is in temporary
protected status under this section.'' INA sec. 244(a)(4), 8 U.S.C.
1254a(a)(4), further requires provision of temporary treatment
benefits--including employment authorization--to an alien who
establishes a prima facie case of eligibility for TPS until a final
determination is made or until a reasonable opportunity to register
opens, as applicable.
DHS's regulations governing the regulations that provide the
employment-authorization categories reflect the requirements of INA
sec. 244(a), 8 U.S.C. 1254a(a). Under 8 CFR 274a.12(a)(12), aliens
granted TPS are authorized for employment ``incident to status'' as a
condition of their immigration status. An alien may request an EAD by
filing Form I-765, Application for Employment Authorization, and USCIS
will issue EADs in category (a)(12) to individuals who have been
granted TPS and file Form I-765. Under 8 CFR 274a.12(c)(19), USCIS will
grant employment authorization and issue EADs in category (c)(19) to
TPS applicants whom USCIS has determined are prima facie eligible for
TPS and therefore receive temporary treatment benefits while their
applications are pending. The regulation at 8 CFR 244.5 mirrors INA
sec. 244(a)(4), 8 U.S.C. 1254a(a)(4), by providing temporary treatment
benefits, including employment authorization, for prima facie-eligible
applicants during the pendency of adjudication of the TPS application.
Since the inception of TPS, DHS has treated both TPS beneficiaries and
prima facie-eligible TPS applicants as employment authorized
continuously during the designation and through any designation
extensions, using Federal Register notices to automatically extend the
validity of existing TPS-based EADs--typically for six or twelve
months--to provide continued evidence of employment authorization while
re-registrants await adjudication of their Forms I-765 to obtain
renewal EADs.\76\
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\76\ See, e.g., Extension of the Designation of El Salvador for
Temporary Protected Status, 90 FR 5953 (Jan. 17, 2025)
(``Accordingly, through this Federal Register notice, DHS
automatically extends through March 9, 2026, the validity of certain
EADs previously issued under the TPS designation of El Salvador. As
proof of continued employment authorization through March 9, 2026,
TPS beneficiaries can show their EAD with the notation A12 or C19
under Category and a `Card Expires' date of March 9, 2025, June 30,
2024, Dec. 31, 2022, Oct. 4, 2021, Jan. 4, 2021, Jan. 2, 2020, Sept.
9, 2019, or March 9, 2018.'').
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[[Page 22961]]
3. H.R.1 Controls and Supersedes Prior TPS Employment Authorization
Duration Practices Under INA Sec. 244
Textually, 8 U.S.C. 1803(c) and 8 U.S.C. 1811(a) appear to conflict
with the phrasing of INA sec. 244(a)(2), 8 U.S.C. 1254a(a)(2) that TPS-
based employment authorization is ``effective throughout'' the period
of TPS, because they impose a specific one-year-or-duration of
designation cap on the TPS-related employment authorization, whereas
section 244(a)(2), 1254a(a)(2), speaks in status-based terms without
prescribing a duration.\77\ DHS must implement H.R.1's explicit caps
for TPS-related employment authorization periods in a manner faithful
to both the new and previously existing statutory text.
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\77\ Cf. 8 U.S.C. 1803(c) and 1811(a), with INA sec. 244(a)(2),
8 U.S.C. 1254a(a)(2).
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H.R.1's duration provisions are later-enacted and speak directly to
the temporal scope of TPS-based employment authorization; they impose
an express ceiling--one year or the duration of the designation
(whichever period is shorter)--on how long employment authorization may
remain valid in any single grant or renewal.\78\ Reading 8 U.S.C.
1803(c) and 8 U.S.C. 1811(a) together with INA sec. 244, 8 U.S.C.
1254a, under the ordinary tools of construction, DHS gives effect to
both statutes by assigning them complementary roles: INA sec. 244, 8
U.S.C. 1254a, continues to define who is eligible to be employment-
authorized (TPS beneficiaries under 8 CFR 274a.12(a)(12) and prima
facie-eligible applicants receiving temporary treatment benefits under
8 CFR 274a.12(c)(19) and 8 CFR 244.5), while H.R.1 supplies the maximum
duration for each period of authorization across both categories.\79\
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\78\ 8 U.S.C. 1803(c) and 1811(a).
\79\ INA sec. 244(a)(1), (2), (4), 8 U.S.C. 1254a(a)(1), (2),
(4); 8 CFR 274a.12(a)(12) and (c)(19); 8 CFR 244.5; 8 U.S.C. 1803(c)
and 1811(a).
---------------------------------------------------------------------------
Where INA sec. 244(a)(2), 8 U.S.C. 1254a(a)(2), states that
employment authorization is ``effective throughout'' TPS, DHS reads
that as a status-based entitlement to be eligible for authorization
during the life of the TPS designation, not as a guarantee that any
single authorization period may exceed H.R.1's specific limit.\80\
Applying the later-in-time canon resolves the textual tension by
allowing the INA sec. 244, 8 U.S.C. 1254a entitlement to persist while
H.R.1's later, more specific command regulates how long each
authorization may run.\81\ This harmonized reading provides a clear,
administrable rule that aligns with H.R.1's structure of initial and
renewal fees tied to time-limited employment authorization periods.\82\
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\80\ INA sec. 244(a)(2), 8 U.S.C. 1254a(a)(2); 8 U.S.C. 1803(c)
and 1811(a).
\81\ See e.g., Watt v. Alaska, 451 U.S. 259 (1981); Chae Chan
Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581
(1889) (recognizing Congress's plenary power over exclusion and
applying the later-in-time rule--i.e., a subsequent statute may
supersede a conflicting treaty).
\82\ 8 U.S.C. 1803(c) and 1811(a); 8 CFR 274a.12(a)(12),
(c)(19); 8 CFR 244.5(d).
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DHS is enforcing the H.R.1 employment authorization period limits
by requiring that TPS employment authorization be renewed at intervals
of one year--or the remaining TPS designation, if shorter--for both 8
CFR 274a.12(a)(12) beneficiaries and 8 CFR 274a.12(a)(19) prima facie-
eligible applicants.\83\ DHS recognizes that, where a TPS designation
is longer than 12 months, a possible impact of this renewal requirement
may be that some TPS beneficiaries or prima facie-eligibility
applicants could face gaps in employment authorization and suffer
temporary job loss until they receive a renewal of employment
authorization. At present, current TPS designation timeframes do not
place TPS beneficiaries and applicants at risk of experiencing gaps in
employment authorization.\84\ In addition, in instances where TPS
designations have been automatically extended for 6 months, USCIS has
automatically extended EADs in order to prevent gaps in employment
authorization. Should future TPS designations, redesignations, or
extensions be set for more than 12 months, applicants seeking to avoid
gaps in employment authorization and EAD validity would need to file
timely renewals to maintain employment authorization for the remainder
of the designation or extension, and each renewal will be approved only
for the maximum period permitted under H.R.1--that is, for one year or
the remaining duration of the TPS designation, whichever is
shorter.\85\ By requiring TPS beneficiaries and prima facie eligible
applicants to regularly renew their requests for employment
authorization, this approach provides predictable checkpoints for
identity, eligibility, and security vetting.\86\ It helps ensure that
aliens do not possess facially-valid EADs based on TPS when the
underlying TPS designations no longer exist, including when a
designation nears conclusion or is terminated.\87\ Any document
evidencing employment authorization (e.g., an EAD) must reflect--and
may not exceed--the underlying authorization period established by
H.R.1, so that documentary validity and the legal authorization it
evidences remain aligned.\88\
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\83\ 8 U.S.C. 1803(c) (initial fee); 8 U.S.C. 1811(d) (renewal/
extension fee); see also 8 U.S.C. 1811(a) (renewal/extension limited
to one year or designation).
\84\ Of the current TPS designations, none exceed one year. The
latest designation period is for TPS Ukraine, which ends on October
19, 2026. Many designations have been terminated but are subject to
ongoing litigation; TPS benefits have continued for these
designations. See USCIS Temporary Protected Status web pages at
<a href="https://www.uscis.gov/humanitarian/temporary-protected-status">https://www.uscis.gov/humanitarian/temporary-protected-status</a> (last
reviewed/updated 03/17/2026).
\85\ 8 U.S.C. 1811(a)-(d); 8 U.S.C. 1803(c).
\86\ See 8 CFR 274a.12.
\87\ INA sec. 244(b), 8 U.S.C. 1254a(b); 8 U.S.C. 1803(c) and
1811(a).
\88\ 8 U.S.C. 1803(a), 1811(a); 8 CFR 274a.12; 8 CFR 244.5.
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4. Summary of Regulatory Text Changes
DHS adopts the following regulatory changes to implement H.R.1's
substantive cap on employment authorization incident to TPS--1 year or
the remaining duration of the TPS designation, whichever is shorter:
<bullet> New 8 CFR 244.5(d) (Prima facie applicants/temporary
treatment benefits):
DHS is revising this section to (1) provide that employment
authorization granted as a temporary treatment benefit to prima facie-
eligible TPS applicants may not exceed 1 year or the remaining TPS
designation, whichever is shorter; and (2) require the applicant to
obtain a renewal of employment authorization if the TPS designation has
not yet terminated to continue authorization beyond each employment
authorization period.
<bullet> Revised 8 CFR 244.12(a) and (d) (TPS beneficiaries):
DHS revises 8 CFR 244.12(a) to (1) establish the one-year-or-
duration of the designation limit on employment authorization for TPS
beneficiaries; and (2) require the beneficiary to obtain a renewal of
employment authorization if the TPS designation has not yet terminated
to continue authorization beyond each employment authorization period.
DHS also revises 8 CFR 244.12(d) to subject extensions of employment
authorization during the pendency of any renewal or appeal in
administrative proceedings to the one-year-or-duration of the
designation limitation described in revised 8 CFR 244.12(a).
<bullet> Conforming revisions to 8 CFR 274a.12(a)(12) and (c)(19):
DHS revises 8 CFR 274a.12(a)(12) and (c)(19) to cross-reference the
validity period limitations specified in 8 CFR 244.5(d) and 244.12(a)
and aligns EAD
[[Page 22962]]
validity to the underlying authorized period of employment.
E. Severability
Although DHS is not codifying a severability provision in the
regulatory text, DHS intends for the provisions of this interim final
rule to be fully severable. The decision not to codify a severability
clause is to avoid potential confusion across multiple CFR parts
amended here (8 CFR parts 103, 106, 208, 244, and 274a), which govern
distinct programs, authorities, and procedures, and to keep the
regulatory text concise and readable. DHS believes that the provisions
in this rule can function independently of each other and the absence
of a codified severability provision should not be taken to suggest any
different intent than if such language were included. If any provision
of this rule--or the application of any provision to any person,
entity, or circumstance--is stayed or held invalid, the remainder of
the rule, and the application of the affected provision to other
persons, entities, or circumstances, will not be affected. Without
limitation, each amended section, subsection, sentence, clause, and
item (including but not limited to the fee provisions under part 106,
the asylum fee provisions and AAF consequence in part 208, and the TPS
employment-authorization duration and renewal requirements in parts 244
and 274a) is intended to be independently operative and severable from
the others.
F. Fee Waivers and Exemptions
DHS is not changing any fee exemptions and fee waivers in 8 CFR
part 106 in this rule. Fees imposed by HR-1 cannot be waived or
reduced. While INA section 245(l)(7), 8 U.S.C. 1255(l)(7) requires DHS
to allow a request for waiver of the fees required for certain
immigration benefit requests, H.R.1 supersedes that requirement.
Therefore, USCIS cannot waive such a fee required by H.R.1 and a
request for such may not be submitted. The inability to waive an H.R.1
fee requires no changes to the DHS fee regulations at 8 CFR parts 103
and 106. Fee waivers and exemptions in 8 CFR 106.3(a)(3) list the USCIS
fees that may be waived or are exempt, and by leaving those provisions
unchanged, H.R.1 fees are neither explicitly nor implicitly included as
fees that may be waived or exempt. In addition, public interest fee
waivers and exemptions authorized by 8 CFR 106.3(c) must be consistent
with the applicable law. Thus, that provision does not authorize relief
from the payment of H.R.1 fees and no amendment or clarification is
required.
The fee exemptions provided by 8 CFR part 106 do not apply to the
new fees codified in this rule. Thus, for example, the fee exemptions
provided for USCIS Form I-131 by 8 CFR 106.2(a)(7)(v) and (vi) apply to
the base USCIS fee for Form I-131, while the H.R.1 fee for being
paroled into the United States is still required.
V. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Statutorily Required Changes
As noted elsewhere in the preamble, DHS is conforming its
regulations to statutory changes that provide little agency discretion
in its interpretation and promulgation. When regulations merely restate
the statute they implement (i.e., when the rule does not change the
established legal order), the APA does not require the agency to use
notice-and-comment procedures. See 5 U.S.C. 553(b)(B); Gray Panthers
Advocacy Comm. v. Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. 1991). So
long as the agency does not expand the substantive reach of the statute
to impose new obligations, penalties, or substantive eligibility
requirements--i.e., so long as the agency ``merely restate[s]'' the
statute--notice and comment are unnecessary. See World Duty Free
Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 65 (D.D.C. 2000).
In addition, courts have consistently held that ``good cause''
under the APA's notice-and-comment exemption exists where delay would
be impracticable, unnecessary, or contrary to the public interest.\89\
Rulemaking procedures are deemed ``unnecessary'' when the use of
rulemaking would be inconsequential to the industry and the rule is
routine.\90\ Courts have found that the unnecessary prong is satisfied
if, for example, the rescission or change of a rule is needed for
consistency with legislation or judicial decision and there is no room
for public debate over the agency's course of action.\91\
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\89\ See, e.g., Util. Solid Waste Activities Grp. v. EPA, 236
F.3d 749, 754-55 (D.C. Cir. 2001); Hawai[revaps]i Helicopter
Operators Ass'n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995).
\90\ See, e.g., Util. Solid Waste Activities Grp. v. EPA, 236
F.3d 749, 7555 (D.C. Cir. 2001); See Nat'l Customs Brokers &
Forwarders Ass'n of Am. v. United States, 59 F.3d 1219, 1224 (Fed.
Cir. 1995) (accepting Customs' good cause argument that, because
Congress directed Customs to change the regulations in the way it
did, delaying implementation by going through notice and comment
procedures was unnecessary). Juan J. Lavilla, The Good Cause
Exemption to Notice and Comment Rulemaking Requirements Under the
Administrative Procedure Act, 3 Admin. L.J. 317, 354 (1989).
\91\ See EME Homer City Generation, LP v. EPA, 795 F.3d 118,
134-35 (D.C. Cir. 2015) (EPA had good cause to issue interim rule
rescinding agency prior regulatory approvals of certain state
implementation plans under the Clean Air Act, consistent with D.C.
Circuit decision holding those approvals have been erroneous, as
commenters would have had little to say.'').
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2. Procedural Rule
The APA requires DHS to provide public notice and seek public
comment on substantive regulations. See 5 U.S.C. 553. The APA, however,
provides limited exceptions to this requirement for notice and public
comment, including for ``rules of agency organization, procedure or
practice.'' 5 U.S.C. 553(b)(A).
H.R.1, signed into law on July 4, 2025, sets forth the requirement
that DHS collect new statutory fees during FY 2025, limit the length of
EADs, and execute enforcement of such fees.\92\ This final rule both
codifies statutory requirements to pay and collect fees, and provides
that the fees cannot be waived or reduced. DHS acknowledges the
substantive impact of new fees on the affected parties, but DHS has no
discretion but to impose those fees, and must dictate their
implementation, attendant processes, and consequences for failure to
comply.\93\ H.R.1 law was effective on enactment and DHS must implement
it by providing the procedures both for applicants and for USCIS to
pay, collect, and for failure to pay.\94\
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\92\ 8 U.S.C. 1801-1815.
\93\ See 6 U.S.C. 522 (``Nothing in [the HSA], any amendment
made by [the HSA], or in section 1103 of Title 8, shall be construed
to limit judicial deference to regulations, adjudications,
interpretations, orders, decisions, judgments, or any other actions
of the Secretary of Homeland Security or the Attorney General.'').
\94\ Id.
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While DHS began collecting many of the H.R.1 fee provisions via
notice,\95\ DHS also noted that some of the fees would require
additional implementation. This IFR codifies a number of H.R.1
statutory requirements to pay certain fees in addition to existing
fees, that the asylum application fee is required at filing and will be
retained regardless of the application being rejected, and the new EAD
statutory periods for asylum applicants and TPS.
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\95\ See 90 FR 34511 and 90 FR 48317.
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[[Page 22963]]
DHS acknowledges that not all rules that might be categorized as
procedural are exempted and that the distinction between substantive
and procedural rules is not a clear line.\96\ Almost all procedural
rules affect substantive rights to some degree and substantive rules
are bounded and defined by procedural dictates.\97\ A procedural rule
cannot alter the rights or interests of parties, although it may alter
the manner in which the parties present themselves or their viewpoints
to the agency, and the determining factor is whether the substantive
effect is enough to provide that notice and comment are needed to
safeguard the policies underlying the APA.\98\
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\96\ JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir.
1994).
\97\ Lamoille Valley R. Co. v. ICC, 711 F.2d 295, 328 (D.C. Cir.
1983).
\98\ James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277,
280 (D.C. Cir. 2000).
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Applying the exception to this rule DHS finds that the procedures
put in place to process the new statutory fee requirements are
intertwined with the fees themselves and to not apply them would render
the fee requirements ineffectual. Thus, DHS is of the opinion that it
could bypass rulemaking altogether and could retain the asylum
application fee and reject a Form I-589 for failure to pay the AAF
through internal guidance. However, DHS is codifying this requirement
in the interest of accessibility and public awareness. Therefore,
because the procedures codified necessarily attendant to implement the
fees so as to add no more requirements than the law's fee requirements
themselves, they relate to agency procedure and practice (5 U.S.C.
553(b)(A)) and advance notice and comment is unnecessary.
Accordingly, DHS finds good cause to issue this rule as an IFR.
Immediate effect is necessary to meet Congress's directive and in the
public interest. Although H.R.1 prescribes these requirements, DHS
recognizes the value of public comments and is publishing this rule as
an IFR with a request for public comment. DHS intends to publish a
final rule and will consider all timely comments submitted during the
public comment period as described in the Addresses section in
developing that rule as well as in issuing guidance related to H.R.1.
B. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has not designated this
rule a ``significant regulatory action'' under section 3(f) of E.O.
12866. Accordingly, OMB has not reviewed it.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation' ''
(Mar. 26, 2025).
1. Baseline
Generally, rulemaking begins with the articulation of a problem
that needs to be solved and analysis of the mechanisms by which the
amended regulations would solve the relevant issues and what the
resulting impacts would be relative to the appropriate baseline. A
baseline is the best assessment of the way the world would look absent
the regulatory action, i.e., a baseline measures the current state of
the world. DHS assesses the benefits and costs of a regulatory action
relative to the baseline. In this rule, DHS is updating the CFR to
codify the details and changes required in H.R.1. Therefore, the proper
baseline for this IFR is a statutory baseline, such as H.R.1 in this
case, from which we can assess the economic impact of the rule relative
to current, existing law.
As described in the preamble, this IFR implements the following
regulatory changes:
1. Form I-94 Fee required by 8 U.S.C. 1807: Establishes a fee
requirement that, for USCIS, is applicable to the filing of Form I-102,
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document. New 8 CFR 103.7(d)(4).\99\
---------------------------------------------------------------------------
\99\ USCIS notes that this fee is already collected by CBP when
CBP issues a Form I-94. The provision described here is limited to
USCIS' provision of Forms I-94 requested via Forms I-102.
---------------------------------------------------------------------------
2. Annual Asylum Fee required by 8 U.S.C. 1808: Codifies the
requirement that an alien pay the AAF and establishes that,
procedurally, failure to pay within 30 days of notice results in
rejection of the pending asylum application and the denial of any
associated application for employment authorization. New 8 CFR
106.2(c)(15)(ii) and 208.3(c)(6).
3. Retention of Asylum Application Fee required by 8 U.S.C. 1802:
Codifies the fee requirement and provides that the asylum application
filing fee is retained by USCIS if a Form I-589 is rejected, consistent
with 8 CFR 103.2. New 8 CFR 106.2(c)(14).
4. TPS Employment Authorization Validity required by 8 U.S.C.
1803(c) and 8 U.S.C. 1811(a): Limits work authorization and any
associated employment authorization document under TPS to one year, or
the remaining period of designation if shorter, with conforming changes
to ensure consistency across DHS regulations. New 8 CFR 274a.12(a)(12)
and 274.12(c)(19).
All 4 items are explicitly required by statute. However, DHS is
exercising limited discretion in the implementation of items 1-3 to set
forth procedural changes required for such implementation. Therefore,
this analysis discusses the impacts of how DHS implements the Form I-
102 fees (for a replacement Form I-94 as required by H.R.1), the
consequences of failure to pay the AAF, and the retention of the asylum
application fee after Form I-589 rejection.
2. Summary
Table 2 summarizes the estimated impacts of the provisions of the
IFR.
[[Page 22964]]
Table 2--Summary of Provisions and Economic Impacts of the IFR
----------------------------------------------------------------------------------------------------------------
Provisions IFR regulatory text Estimated impact of regulatory change
----------------------------------------------------------------------------------------------------------------
New Immigration Fee Required by H.R.1 8 CFR 103.7(d)(4)(ii)...... Quantitative:
Section 100008. Transfers
<bullet> Affected aliens will transfer
$98,880 annually to the Federal
Government through additional filing
fees for Form I-102.
Qualitative:
Benefits
<bullet> The Federal Government may
realize some benefits from optimizing
the allocation of its resources.
Consequences of Nonpayment of the Annual 8 CFR 208.3(c)(3) and 8 CFR Qualitative:
Asylum Fee (AAF). 208.7(a)(2). Costs
<bullet> Certain aliens who fail to pay
the AAF will incur time burdens (either
through expedited removal proceedings or
the NTA process).\100\
<bullet> Certain aliens who fail to pay
the AAF may lose wages due to the loss
of employment authorization.
<bullet> Certain employers who would have
employed an affected alien may lose
productivity due to the loss of
employment authorization.
<bullet> Affected aliens without lawful
status that are placed in expedited
removal may incur economic losses due to
time spent in custody due to mandatory
detention.
<bullet> The government may incur costs
associated with expedited removal
proceedings, including mandatory
detention of affected aliens placed in
expedited removal and transportation
costs.
Benefits
<bullet> Improved resource allocation as
DHS will be able to focus resources on
processing asylum filings.
<bullet> Increased immigration
enforcement.
Retention of the H.R.1 sec. 100002 8 CFR 106.2(c)(14)......... Qualitative:
Asylum Application Fee After Form I-589 Transfers
is Rejected. <bullet> Retention of asylum application
fees for filed and rejected Forms I-589
will transfer administration and
immigration enforcement costs from
taxpayers to aliens.
Implementation of H.R.1 Section 100012 8 CFR 244.5, 8 CFR 244.12, Qualitative:
Limits on Temporary Protected Status 8 CFR 274a.12(a)(12) and Costs
Employment Authorization Document Va. (c)(19). <bullet> Certain aliens may incur lost
wages due to the (a)(12) and (c)(19) EAD
validity period being shortened.
<bullet> Certain employers who would have
employed an affected alien may lose
productivity due to the EAD validity
period being shortened.
Benefits
<bullet> Harmonized regulations provide
clarity and improved operability of the
rule.
Familiarization......................... USCIS believes a subset of Qualitative:
future petitioners will Costs:
need to familiarize <bullet> Per person opportunity cost of
themselves with the rule. time for familiarization with the rule
will range from $23.79 to $53.88
depending on the wages of the affected
alien. The total opportunity cost of
time to become familiarized with the
rule is $144.96 for lawyers.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
In additionto the impacts summarized above, and as required by OMB
Circular A-4, DHS presents in Table 3 the accounting statement showing
the anticipated costs, benefits, and transfers associated with this
regulation.\101\
---------------------------------------------------------------------------
\100\ The population of aliens that would experience additional
costs due to failure to the pay the AAF are aliens that would have
otherwise been approved but for failure to pay the AAF.
\101\ OMB, Circular A-4, ``Regulatory Analysis,'' p. 44 (Sep.
17, 2003), <a href="https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
Table 3--OMB A-4 Accounting Statement ($ millions, 2024)
[Time period: FY 2025 through FY 2033]
----------------------------------------------------------------------------------------------------------------
Source citation
Category Primary estimate Minimum estimate Maximum estimate (RIA, RFA, SEA,
preamble, etc.)
----------------------------------------------------------------------------------------------------------------
Benefits:
Monetized Benefits...... N/A N/A N/A
Annualized quantified, N/A N/A N/A
but un-monetized
benefits.
----------------------------------------------------------------------------------------------------------------
[[Page 22965]]
Unquantified benefits... The Federal Government may realize some benefits from optimizing RIA.
the allocation of its resources, given that CBP already has an
operational and effective substitute for Form I-102, Application
for Replacement/Initial Nonimmigrant Arrival-Departure Document,
filings. The government may also be able to better optimize
resource allocation if the required fees reduce frivolous
filings and the resources used on them are reallocated to
genuine asylum filings. This IFR may also increase compliance
with immigration laws and regulations by providing DHS more
resources. This rule will make the affected regulations more
consistent and clearer thereby improving the functioning of the
immigration system.
----------------------------------------------------------------------------------------------------------------
Costs:
Annualized monetized N/A N/A N/A RIA.
costs.
Annualized quantified, N/A N/A N/A RIA.
but un-monetized costs
for 10-year period
starting in FY 2025
through FY 2034.
----------------------------------------------------------------------------------------------------------------
Qualitative Affected aliens may incur costs due to legal proceedings
(unquantified) costs. stemming from failure to pay the required fees or lost wages due
to the loss of employment authorization and shortened EAD
validity periods. Affected employers may also lose productivity
due to the loss of employment authorization and shortened EAD
validity periods. Affected aliens may incur costs due to time
spent in mandatory detention as a result of expedited removal
proceedings. The government may face increased costs associated
with mandatory detention and transportation of aliens placed in
expedited removal proceedings.
Affected stakeholders may also need to spend time familiarizing
themselves with the rule.
----------------------------------------------------------------------------------------------------------------
Transfers:
Annualized monetized
transfers:
From Aliens to the $0.1 $0.1 $0.1 RIA.
Federal Government.
----------------------------------------------------------------------------------------------------------------
Miscellaneous Analyses/ Effects.
Category.
Effects on State, None. N/A.
local, and/or Tribal
governments.
Effects on small None. N/A.
businesses.
Effects on wages...... None. N/A.
Effects on growth..... None. N/A.
----------------------------------------------------------------------------------------------------------------
3. Background and Purpose of the IFR
H.R.1 was signed into law on July 4, 2025, and mandated specific
fees for various immigration-related forms, benefits, statuses,
petitions, applications, and requests administered by multiple
government agencies. In furtherance of enacting the text of H.R.1,
USCIS and DHS published multiple FRNs (90 FR 34511 (July 22, 2025), 90
FR 42025 (Aug. 28, 2025), 90 FR 43223 (Sept. 8, 2025), and 90 FR 48317
(Oct. 16, 2025)) announcing some of the new fees that are administered
by USCIS, to whom those fees apply, when the new fees take effect,
instructions on their payment, when and if the fees may be waived, and
consequences of the failure to pay. The purpose of this IFR is to
expand upon the prior FRNs and codify the statutory requirements of
H.R.1, and this Regulatory Impact Analysis (RIA) analyzes the impacts
of this regulatory action.
4. Population
This IFR codifies the implementation of fees for several alien
populations at the direction of Congress, as stated in H.R.1. The
relevant populations are described below.
Section 1807 of 8 U.S.C. requires a $24 fee for any alien who
``submits an application for a Form I-94.'' Because USCIS implements
this fee through the filing of Form I-102, the plain language
application of this portion of H.R.1 for USCIS indicates that the
appropriate affected population is filers of USCIS Form I-102,
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document. Table 4 shows data on Form I-102 filings for FY 2021 through
FY 2025, including the 5-year average.
Table 4--Historical Forms I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document, FY
2021-FY 2025
----------------------------------------------------------------------------------------------------------------
Fiscal year Receipts Approvals Denials Completions
----------------------------------------------------------------------------------------------------------------
2021............................................ 4,282 2,436 629 3,065
2022............................................ 4,272 3,017 1,295 4,312
2023............................................ 3,737 3,505 1,813 5,318
2024............................................ 3,855 3,391 1,268 4,659
2025 *.......................................... 4,454 2,940 868 3,808
[[Page 22966]]
5-year Average.................................. 4,120 3,058 1,175 4,232
----------------------------------------------------------------------------------------------------------------
Source: Data are compiled from annual USCIS ``Quarterly All Forms'' datasets. See the following data sets for
fiscal years 2021-2025, respectively: <a href="https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv">https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv">https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv">https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx</a>.
* Data for FY2025 are calculated. Receipts, Approvals, Denials, and completions are estimated by doubling the
actual values through the end for Q2, FY 2025.
The estimated population for affected Form I-102 filers is 4,120
aliens per year.
H.R.1 requires new fees for aliens seeking asylum. First, H.R.1
requires the payment of a $100 fee by any alien who files an
application for asylum at the time such application is filed. 8 U.S.C.
1802. Table 5 shows historical data for Form I-589 filings for fiscal
years 2021 through 2025 including the 5-year average of the historical
data.
Table 5--Historical Population of Form I-589 Filings
----------------------------------------------------------------------------------------------------------------
Fiscal year Receipts * Approvals Denials Completions Pending
----------------------------------------------------------------------------------------------------------------
2021............................ 61,158 7,118 17,888 39,681 412,796
2022............................ 195,279 10,099 17,059 41,160 571,628
2023............................ 455,054 15,468 5,848 54,211 1,022,163
2024............................ 419,825 16,932 4,600 126,660 1,344,743
2025 **......................... 557,500 13,256 14,652 191,818 1,710,425
5-year Average.................. 337,763 12,575 12,009 90,706 1,012,351
----------------------------------------------------------------------------------------------------------------
Source: Data are compiled from annual USCIS ``Quarterly All Forms'' datasets. See the following data sets for
fiscal years 2021-2025, respectively: <a href="https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv">https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv">https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv">https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>, and <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx</a>.
* Receipts do not equal approval, denials, and completions in any particular fiscal year as cases may have been
adjudicated in a later fiscal year than the one in which they were received.
** Data for FY 2025 are calculated. Receipts, Approvals, Denials, and Completions are estimated by doubling the
actual values through the end for Q2, FY2025. The Pending population is calculated by adding the estimated
FY2025 receipts to the actual FY2024 pending population and then subtracting the estimated FY 2025
completions.
USCIS estimates that the applicable population for the asylum
application fee will be 337,763 aliens annually.
Second, Section 100009 of H.R.1, 8 U.S.C. 1808, requires USCIS to
collect the AAF for FY 2025 and beyond.\102\ 90 FR 34511 (July 22,
2025). This entails that all asylum applicants with pending
applications must pay a minimum $100 annual fee for each calendar year
the application ``remains pending,'' in addition to any other
applicable fee. 8 U.S.C. 1808. Therefore, the relevant population
subject to this fee is all current and future aliens that have filed or
will file Form I-589, respectively, with USCIS.
---------------------------------------------------------------------------
\102\ USCIS Immigration Fees Required by H.R.1, Public Law 119-
21 (2025).
---------------------------------------------------------------------------
Table 6 shows the estimated population over the analysis period,
with a total 10-year population of 30,692,385 aliens required to pay
the congressionally mandated annual asylum fee.\103\
---------------------------------------------------------------------------
\103\ The total 10-year population represents a possible
scenario based on the continuation of recent trends. It represents a
reasonable baseline estimate given historical information and does
not represent a prospective estimate that accounts for all possible
behavioral responses to this IFR and other possible regulatory
changes. As such, USCIS notes that the pending asylum population may
be less if this IFR, or other regulatory changes, causes asylum
filings to substantially drop.
Table 6--Estimated Number of Form I-589 Filings, FY 2026-FY 2035
----------------------------------------------------------------------------------------------------------------
Fiscal year Receipts Approvals Denials Completions Pending
----------------------------------------------------------------------------------------------------------------
2026............................ 337,763 12,575 12,009 90,706 1,957,482
2027............................ 337,763 12,575 12,009 90,706 2,204,539
2028............................ 337,763 12,575 12,009 90,706 2,451,596
2029............................ 337,763 12,575 12,009 90,706 2,698,653
2030............................ 337,763 12,575 12,009 90,706 2,945,710
2031............................ 337,763 12,575 12,009 90,706 3,192,767
2032............................ 337,763 12,575 12,009 90,706 3,439,824
2033............................ 337,763 12,575 12,009 90,706 3,686,881
2034............................ 337,763 12,575 12,009 90,706 3,933,938
2035............................ 337,763 12,575 12,009 90,706 4,180,995
-------------------------------------------------------------------------------
Total....................... .............. .............. .............. .............. 30,692,385
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
[[Page 22967]]
Note: The Pending population is calculated by adding the estimated previous fiscal year's receipts to the
estimated fiscal year pending population and then subtracting the estimated fiscal year's completions. The
pending population for FY2026 is based on the estimated pending population from FY2025, as shown in Table 5.
Finally, H.R.1 also amends the validity period of employment
authorization for aliens who have applied for TPS or who have been
granted TPS such that the validity period of employment authorization
and the resultant Employment Authorization Document (EAD) is limited to
a year or the duration of the temporary status, whichever is shorter.
This provision would affect two separate employment authorization
categories: \104\ (a)(12) for individuals who have been granted TPS and
(c)(19) for applicants who USCIS has determined are prima facie
eligible for TPS. Table 7 and Table 8 show historical data for both the
(a)(12) and the (c)(19) classifications for fiscal year 2021 through
fiscal year 2025, including the 5-year averages.
---------------------------------------------------------------------------
\104\ USCIS provides for employment authorization in multiple
categories. Please see <a href="https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf</a> for information regarding the
specifics of the different categories.
Table 7--Historical Form I-765 Applications, (A)(12) Classification
----------------------------------------------------------------------------------------------------------------
Fiscal year Receipts Approvals Denials
----------------------------------------------------------------------------------------------------------------
2021............................................................ 41,159 14,145 393
2022............................................................ 51,459 41,068 840
2023............................................................ 267,863 80,613 3,538
2024............................................................ 240,947 362,645 8,238
2025 *.......................................................... 418,192 20,262 2,930
5-year Average.................................................. 203,924 103,747 3,188
----------------------------------------------------------------------------------------------------------------
Source: Data are compiled from annual USCIS ``Quarterly All Forms'' datasets. See the following data sets for
fiscal years 2021-2025, respectively: <a href="https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv">https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv">https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv">https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx</a>.
* Data for FY2025 are calculated. Receipts, Approvals, and Denials, are estimated by doubling the actual values
through the end for Q2, FY2025.
Table 8--Historical Form I-765 Applications With (c)(19) Classification, FY 2021-FY 2025
----------------------------------------------------------------------------------------------------------------
Fiscal year Receipts Approvals Denials
----------------------------------------------------------------------------------------------------------------
2021............................................................ 107,927 4,859 106
2022............................................................ 49,022 74,601 1,089
2023............................................................ 61,624 82,520 6,733
2024............................................................ 155,748 136,200 4,992
2025 *.......................................................... 76,450 11,472 700
5-year Average.................................................. 90,154 61,930 2,724
----------------------------------------------------------------------------------------------------------------
Source: Data are compiled from annual USCIS ``Quarterly All Forms'' datasets. See the following data sets for
fiscal years 2021-2025, respectively: <a href="https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv">https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv">https://www.uscis.gov/sites/default/files/document/data/Quarterly_All_Forms_FY2022_Q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv">https://www.uscis.gov/sites/default/files/document/reports/quarterly_all_forms_fy2023_q4.csv</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q4.xlsx</a>, <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2025_q2.xlsx</a>.
* Data for FY2025 are calculated. Receipts, Approvals, and Denials, are estimated by doubling the actual values
through the end for Q2, FY2025.
Given that employment authorization must be approved for there to
be a validity period, the appropriate population for both
classifications is approved Forms I-765. Assuming that historical
trends continue to be stable in the future, the affected estimated
populations are 103,747 for (A)(12) EADs and 61,930 for (C)(19) EADs
(see Table 7 and Table 8).
5. Cost-Benefit Analysis
The background and population sections above describe the
populations affected by this rule. In most instances, the impacts to
these populations come directly from changes Congress articulated in
H.R.1 and therefore are not considered impacts from this rulemaking. In
other instances, however, USCIS seeks to codify aspects of H.R.1 where
congressional direction was ambiguous or missing through the
promulgation of this IFR. The costs, benefits, cost savings, and
transfers (whether quantitative or qualitative) are described below.
i. Costs
Aspects of this IFR may impose qualitative costs. Aliens without
lawful status who fail to pay the AAF in a timely manner (within 30
days) will have their Form I-589 rejected and will either be placed in
expedited removal proceedings or will be issued an NTA. This
necessarily entails time engaging in those processes, though USCIS
cannot properly assess the actual costs given the fact-specific nature
of each individual proceeding.
Furthermore, aliens who fail to pay the AAF in a timely manner
(within 30 days) could experience disruptions to employment
authorization and therefore, both the alien and a hypothetical employer
would experience economic losses (in the form of lost wages for the
alien and lost productivity for the employer). Similarly, the EAD
validity period for some TPS recipients may have been shortened by
H.R.1. This would entail economic losses (in the form of lost wages for
the affected alien and lost productivity for an affected employer).
These impacts are fact specific (including the duration and nature of
[[Page 22968]]
proceedings, lost wages for aliens, lost productivity for employers,
etc.).
The relative increase in the usage of expedited removal (for
certain aliens) may also increase costs to affected populations because
of the additional time in mandatory detention and transportation costs
if removed. Affected aliens will realize costs due to lost wages due to
additional time in detention (subject to the wage ranges discussed
above). The government will also face increased costs in this instance
because of increased infrastructure, administration, and oversight
costs required by the increased prevalence of mandatory detention.
Increased use of expedited removal may also increase transportation
costs. DHS cannot accurately estimate these costs because it lacks
sufficient data regarding the possibly affected population and rate of
non-compliance with the AAF.
Additionally, DHS expects that aliens (or their representatives in
some circumstances) will need to read and understand this rule in order
to successfully understand and be responsive to the regulatory changes.
As a result, we expect this rule will impose familiarization costs
associated with reading this rule.
To estimate the costs of rule familiarization, we estimate the time
it would take to read and understand the IFR by assuming a reading
speed of 250 words per minute.\105\ This rule has approximately 17,000
words. Using a reading speed of 250 words per minute, DHS estimates it
will take approximately 1.13 hours to read and understand this rule.
---------------------------------------------------------------------------
\105\ See <a href="https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html">https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html</a>.
---------------------------------------------------------------------------
To properly calculate these costs, USCIS must account for the
opportunity cost of time for the affected population, which requires
information regarding the relevant wages. The Federal minimum wage is
currently $7.25 per hour,\106\ but many states have implemented higher
minimum wage rates.\107\ However, the Federal Government does not track
a nationwide population-weighted minimum wage estimate. Individuals in
the population of interest for an analysis could be located anywhere
within the United States and may be subject to a range of minimum wage
rates depending on the state or city in which they live.
---------------------------------------------------------------------------
\106\ See DOL, ``Minimum Wage,'' <a href="https://www.dol.gov/general/topic/wages/minimumwage">https://www.dol.gov/general/topic/wages/minimumwage</a> (last visited Nov. 6, 2025).
\107\ See DOL, ``State Minimum Wage Laws,'' <a href="https://www.dol.gov/agencies/whd/minimum-wage/state">https://www.dol.gov/agencies/whd/minimum-wage/state</a> (last updated July 31, 2025).
---------------------------------------------------------------------------
For this IFR, DHS uses the most recent wage data from the U.S.
Department of Labor (DOL), Bureau of Labor Statistics (BLS), National
Occupational Employment and Wage Estimates. More specifically, we use
the 10th percentile hourly wage estimate for all occupations as a
reasonable proxy for the effective minimum wage when estimating the
opportunity cost of time for individuals in populations of interest who
are likely to earn an entry-level wage.\108\ We also use the 10th
percentile hourly wage estimate for individuals who are unemployed, or
for individuals who cannot, or choose not to, participate in the labor
market, as these individuals incur opportunity costs, assign valuation
in deciding how to allocate their time, or both.
---------------------------------------------------------------------------
\108\ See BLS, ``Occupational Employment and Wage Statistics,''
May 2024, United States, All Occupations (SOC #00-0000), <a href="https://www.bls.gov/oes/2024/may/oes_nat.htm#00-0000">https://www.bls.gov/oes/2024/may/oes_nat.htm#00-0000</a> (last updated July 23,
2025).
---------------------------------------------------------------------------
Due to the wide variety of non-paid activities an individual could
pursue, such as childcare, housework, or other activities without paid
compensation, it is difficult to estimate the value of that time, and
even when an individual is not working for wages, their time still has
value. In addition, using a percentile of the hourly wage estimate for
all occupations allows DHS the flexibility to adjust its estimates,
when necessary, depending on the population(s) of interest for
regulatory impact analyses. Moreover, BLS estimates account for changes
in wages across the United States labor market, which includes any
future changes to state minimum wage rates.
Furthermore, DHS does not rule out the possibility that some
portion of the population might earn higher wages. Given that DHS lacks
detailed information on the affected population, it is reasonable to
use a range of wages to calculate the cost of the IFR's provisions to
the affected populations. The aforementioned 10th percentile wage
serves as the lower for the affected population, while DHS utilizes the
mean wage from BLS as the upper bound. DHS will continue to evaluate
the most appropriate wage assumptions for the populations of interest
in its regulatory impact analyses.
The 10th percentile hourly wage estimate for all occupations is
currently $14.42, not accounting for worker benefits while the mean
hourly wage estimate for all occupations is $32.66.\109\ Furthermore,
DHS recognizes that affected aliens may have chosen to hire a lawyer or
accredited representative during their immigration proceedings. The BLS
estimates that the average hourly wage for a lawyer is $87.86.
---------------------------------------------------------------------------
\109\ Id.
---------------------------------------------------------------------------
DHS also must account for worker benefits when estimating the
opportunity cost of time by calculating a benefits-to-wage multiplier.
The benefits-to-wage multiplier is calculated using the most recent BLS
report detailing average total employee compensation for all civilian
U.S. workers.\110\ DHS estimates the benefits-to-wage multiplier to be
1.46, which incorporates employee wages and salaries and the full cost
of benefits, such as paid leave, insurance, and retirement.\111\
Therefore, using the benefits-to-wage multiplier, DHS calculates the
lower bound of total compensation for individuals as $21.05 per hour
for this IFR, where the 10th percentile hourly wage estimate is $14.42
per hour and the average benefits are $6.63 per hour.\112\ Similarly,
the upper bound for total compensation is $47.68, where the mean wage
is $32.66 per hour and the average benefits are $15.02 per hour.\113\
Similarly, DHS estimates the average total hourly compensation for a
lawyer is $128.28.\114\
---------------------------------------------------------------------------
\110\ See BLS, Economic News Release, ``Employer Costs for
Employee Compensation Summary--December 2024,'' Table 1, Employer
costs for employer compensation by ownership, p. 4 (Mar. 14, 2025),
<a href="https://www.bls.gov/news.release/archives/ecec_03142025.pdf">https://www.bls.gov/news.release/archives/ecec_03142025.pdf</a>.
\111\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour) / (Wages and Salaries per
hour) = $47.92 / $32.92 = 1.46 (rounded). See BLS, Economic News
Release, ``Employer Costs for Employee Compensation--December
2024,'' Table 1, Employer costs for employer compensation by
ownership, p. 4 (June 13, 2025), <a href="https://www.bls.gov/news.release/archives/ecec_06132025.pdf">https://www.bls.gov/news.release/archives/ecec_06132025.pdf</a>.
\112\ The calculation of the benefits-weighted 10th percentile
hourly wage estimate: $14.42 per hour x 1.46 benefits-to-wage
multiplier = $21.05 (rounded) per hour.
\113\ The calculation of the benefits-weighted 10th percentile
hourly wage estimate: $32.66 per hour x 1.46 benefits-to-wage
multiplier = $47.68 (rounded) per hour.
\114\ The calculation of the benefits-weighted Lawyer wage
estimate: $87.86 per hour x 1.46 benefits-to-wage multiplier =
$128.28 (rounded) per hour.
---------------------------------------------------------------------------
As discussed above, the hourly total compensation for aliens
earning the 10th percentile wage is $21.05, the total hourly
compensation of aliens earning the average wage is $47.68, and total
hourly compensation for lawyers is $128.28. Therefore, the estimated
opportunity cost of time for each type of applicant to read and
understand the rule for non-working petitioners is approximately $23.79
for aliens earning the 10th percentile wage, $53.88 for aliens earning
the average wage, and $144.96 for lawyers.\115\
---------------------------------------------------------------------------
\115\ Calculation, 10th percentile wage = $21.05 hourly total
compensation * 1.13 hours = $23.79 (rounded).
Calculation, mean wage = $47.68 hourly total compensation * 1.13
hours = $53.88 (rounded).
Calculation, lawyer = $128.28 hourly total compensation * 1.13
hours = $144.96 (rounded).
---------------------------------------------------------------------------
[[Page 22969]]
ii. Benefits
DHS believes that there are several benefits to this rule. First,
this IFR benefits the Federal Government by improving the ability to
allocate scarce resources. Because the consequence for failure to pay
the AAF in this rule is rejection of the pending request, for instance,
it could reduce the number of asylum applications USCIS must process to
approval or denial. By reducing the number of pending asylum
applications, rejection for failure to pay the AAF will also reduce
filings of USCIS Form I-765, Application for Employment Authorization,
from an applicant for asylum or their derivatives. USCIS processes a
Form I-765 from asylum applicants for free.\116 \Thus, because some
level of nonpayment of the AAF is quite likely, USCIS will benefit by
being able to shift resources from processing Forms I-589 and I-765 for
asylum applicants who will be rejected after this rule takes effect to
requests from those who pay their AAF as required. Such a shift will
facilitate better allocation of scarce resources for USCIS.
---------------------------------------------------------------------------
\116\ 8 CFR 106.2(a)(44(ii)(G).
---------------------------------------------------------------------------
Another important benefit of the IFR is the general strengthening
of the immigration system. Rejection for failure to pay the AAF and the
retention of the Form I-589 filing fee if the form is rejected advances
H.R.1's deterrence and enforcement objectives by ensuring that
noncompliance results in swift and predictable consequences consistent
with DHS' mission to enforce the immigration laws and ensure the
security of the Nation's borders.
iv. Transfers
This IFR will likely impact transfer payments between various
populations. Some of these transfers can be quantified, while others
can be described only qualitatively.
a. Quantitative Transfers
This IFR codifies that Form I-102 filings must include the
statutorily mandated $24 fee for any alien who ``submits an application
for a Form I-94''. As such, an estimated 4,120 Form I-102 filers per
year (see Table 4) will be required to submit this fee in addition to
any fees required for Form I-102 itself. Therefore, annual transfers
from affected aliens to the Federal Government under the rule are
estimated to be $98,880 per year.\117\ Total transfers from affected
aliens to the Federal Government are estimated to be $988,800 over the
entire analysis period.\118\
---------------------------------------------------------------------------
\117\ Calculation: 4,120 affected aliens x $24 filing fee for
Form I-94 = $98,880 in transfers. Also note that these calculations
do not include inflation adjustments as described in H.R.1.
\118\ Calculation: $98,880 in annual transfers due to Form I-94
filing fees x 10 years = $988,800 in new transfers due to the rule.
---------------------------------------------------------------------------
b. Qualitative Transfers
This IFR codifies that the asylum application fee required by H.R.1
will be retained by the Federal Government if a Form I-589 is rejected.
The decision to retain such fees does represent a transfer from asylum
applicants to the Federal Government. The rule itself does not create
or change such transfers, but only clarifies their treatment in the
case of rejected applications. While filing fees are typically thought
of as transfers since USCIS sets fees so that they properly cover the
cost of adjudication and administrative burdens associated with the
form, the retention of the asylum application fee represents a transfer
because the transfer occurs irrespective of the filing's acceptance. In
this instance, the IFR's provision furthers H.R.1's goal of shifting
immigration enforcement and oversight costs from taxpayers to aliens.
USCIS cannot reliably quantify the amount of these transfers since the
implementation of the asylum application fee is new and there is a lack
of information to estimate the rate of noncompliance or the rate of
rejected filings that would include the asylum application fee.\119\
---------------------------------------------------------------------------
\119\ As discussed above, USCIS estimates that approximately
337,763 Forms I-589 will be filed annually over the 10-year analysis
period. Internal data show that, for the first half of FY2026, USCIS
rejected approximately 42% of Forms I-589 that were filed. These
data indicate that, should these rates remain constant over the
analysis period, USCIS would reject approximately 141,860 Forms I-
589 annually. USCIS notes, however, that the historical rate of
rejection applied to historical filing population is an unreliable
proxy for the rate of rejection after complete implementation of the
fees (and consequences for lack thereof) described by H.R.1 because
the establishment of fees for Forms I-589 represents a significant
change from past practice and disincentivizes frivolous filing.
USCIS presents these datapoints as context but does not believe that
they should be relied upon in and of themselves.
---------------------------------------------------------------------------
6. Alternatives Considered
As discussed above, this rule largely serves to codify the changes
that Congress dictated by the passage of H.R.1. Therefore, this rule
generally does not represent an independent action by USCIS to assert
its discretion to amend the CFR.
As discussed above, DHS evaluated several alternatives to the
procedural provisions described in this IFR. Each option was evaluated
with the goal of ensuring that the rule reflects the best
interpretation of H.R.1 and the INA and satisfies the APA's requirement
for reasoned decisionmaking.\120\ For the reasons explained in this
analysis, DHS concluded that the selected approaches--applicability of
the Form I-94 fee to the Form I-102, rejection of a nonpaying I-589
resulting in an NTA or expedited removal where applicable and the loss
of employment authorization, retention of the asylum application fees
in the event of rejection, and harmonization of EAD validity periods
for certain TPS applicants and recipients--best effectuate H.R.1's
enforcement and deterrence purposes and are administratively superior
to the following alternatives considered.
---------------------------------------------------------------------------
\120\ Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
(requiring the best interpretation of the statute); Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)
(reasoned decision-making).
---------------------------------------------------------------------------
C. Regulatory Flexibility Act (Certification)
The Regulatory Flexibility Act of 1980 (RFA), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996, requires
Federal agencies to consider the potential impact of regulations on
small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.\121\
---------------------------------------------------------------------------
\121\ A small business is defined as any independently owned and
operated business not dominant in its field of operation that
qualifies as a small business per the Small Business Act, 15 U.S.C.
632.
---------------------------------------------------------------------------
The IFR does not directly regulate small entities and is not
expected to have a direct effect on small entities. Rather, this IFR
regulates individuals, and individuals are not defined as ``small
entities'' by the RFA. While some employers could experience costs or
transfer effects, these impacts would be indirect. As discussed
previously, the no-action baseline for this IFR includes the fees
mandated by H.R.1 so any behavioral response from those fees would not
be attributable to this IFR. For instance, any reduction in the number
of aliens requesting Forms I-765 under either (a)(12) or (c)(19)
classifications would be attributable to H.R.1 and not to this IFR. In
any case, this rule would not impact the ability to employ eligible
aliens and also would not impact the actual eligibility criteria
[[Page 22970]]
for employment authorization. As such, the impact of this rule on small
entities will be negligible.
Based on the evidence presented in this analysis and throughout
this preamble, DHS certifies that this IFR would not have a significant
economic impact on a substantial number of small entities. DHS
nonetheless welcomes comments regarding potential impacts on small
entities, which DHS may consider as appropriate in a final rule.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector.\122\
---------------------------------------------------------------------------
\122\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------
The inflation adjusted value of $100 million in 1995 is
approximately $206 million in 2024 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\123\ This IFR does not contain a
Federal mandate as the term is defined under UMRA.\124\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
---------------------------------------------------------------------------
\123\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' <a href="https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf">https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf</a> (last visited Nov. 6, 2025). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2024); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; and (4) Multiply by 100 = [(Average monthly CPI-U for 2024-
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)]
x 100 = [(313.689 -152.383) / 152.383] = (161.306/152.383) = 1.059 x
100 = 105.86% percent = 106 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.06 = $206
million in 2024 dollars.
\124\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------
E. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
The Congressional Review Act (CRA) was included as part of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) by
subtitle E of SBREFA, Public Law 104-121, title II, 110 Stat. 847, 868,
et seq. While this IFR does not meet the criteria set forth in 5 U.S.C.
804(2) because it is not likely to result in an annual effect on the
economy of $100 million or more, DHS has complied with the CRA's
reporting requirements and has sent this rule to Congress and the
Comptroller General as required by 5 U.S.C. 801(a)(1).
F. Executive Order 13132 (Federalism)
This IFR will not have substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of E.O. 13132,
Federalism, 64 FR 43255 (Aug. 4, 1999), it is determined that this IFR
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This IFR is drafted and reviewed in accordance with E.O. 12988,
Civil Justice Reform. This IFR was written to provide a clear legal
standard for affected conduct and was reviewed carefully to eliminate
drafting errors and ambiguities so as to minimize litigation and undue
burden on the Federal Court system. DHS has determined that this rule
meets the applicable standards provided in section 3 of E.O. 12988.
H. Family Assessment
DHS has reviewed this rule in line with the requirements of section
654 of the Treasury General Appropriations Act, 1999.\125\ DHS has
systematically reviewed the criteria specified in section 654(c)(1), by
evaluating whether this regulatory action: (1) impacts the stability or
safety of the family, particularly in terms of marital commitment; (2)
impacts the authority of parents in the education, nurture, and
supervision of their children; (3) helps the family perform its
functions; (4) affects disposable income or poverty of families and
children; (5) only financially impacts families, if at all, to the
extent such impacts are justified; (6) may be carried out by State or
local government or by the family; or (7) establishes a policy
concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the agency
determines a regulation may negatively affect family well-being, then
the agency must provide an adequate rationale for its implementation.
---------------------------------------------------------------------------
\125\ See Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------
DHS has no data that indicate that this IFR will have any impacts
on disposable income or the poverty of certain families and children,
including U.S. citizen children. DHS acknowledges that this rule would
increase the fees that some families must submit and thus may affect
the disposable income for certain families. However, the IFR would
provide USCIS and the Federal Government with funds that would be used
to administer the affected programs and meet the intent of H.R.1. DHS
is required to collect the subject fees and is authorized to make
adjustments to them to effectuate the policy and funding goals of the
law. While the new fees could have a financial impact on a family that
chooses to submit an immigration benefit request, DHS has few
alternatives other than this rulemaking. DHS also determined that this
rule would not have any impact on the autonomy or integrity of the
family as an institution.
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This IFR does not have Tribal implications under Executive Order
13175, Consultation and Coordination With Indian Tribal Governments,
because it will not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
J. National Environmental Policy Act
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.,
applies and, if so, what degree of analysis is required. DHS Directive
023-01 Rev. 01 ``Implementing the National Environmental Policy Act''
(Dir. 023-01 Rev. 01) and Instruction Manual 023-01-001-01 Rev. 01
(Instruction Manual) \126\ establish the policies and procedures that
DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\126\ The Instruction Manual contains DHS's procedures for
implementing NEPA and was issued November 6, 2014, <a href="https://www.dhs.gov/ocrso/eed/epb/nepa">https://www.dhs.gov/ocrso/eed/epb/nepa</a> (last updated July 29, 2025).
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a
[[Page 22971]]
significant effect on the human environment and, therefore, do not
require an environmental assessment or environmental impact
statement.\127\ The Instruction Manual, Appendix A lists the DHS
Categorical Exclusions.\128\
---------------------------------------------------------------------------
\127\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\128\ See Instruction Manual, Appendix A, Table 1.
---------------------------------------------------------------------------
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\129\
---------------------------------------------------------------------------
\129\ Instruction Manual at V.B(2)(a)-(c).
---------------------------------------------------------------------------
This IFR implements and clarifies certain immigration fees that DHS
is required to collect under H.R.1, provides consequences from non-
payment of certain fees, and allows USCIS to retain the Form I-589
filling fee, if the application is rejected. The rule is intended to
provide the regulations authorized and required by H.R.1 and to clarify
and fully carry out its requirements for USCIS fees.
This IFR is strictly administrative and procedural. DHS has
reviewed this IFR and finds that no significant impact on the
environment, or any change in environmental effect, will result from
the amendments being promulgated in this IFR.
Accordingly, DHS finds that the promulgation of this IFR's
amendments to current regulations clearly fits within categorical
exclusion A3 established in DHS's NEPA implementing procedures as an
administrative change with no change in environmental effect, that is
not part of a larger Federal action, and that does not present
extraordinary circumstances that create the potential for a significant
environmental effect. Therefore, this IFR is categorically excluded
from further NEPA review.
K. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to the Office of Management and Budget (OMB) for
review and approval any reporting requirements inherent in a rule,
unless they are exempt. This rule does not impose any new reporting or
recordkeeping requirements under the PRA.
This rule addresses the submission of USCIS Form I-102, Application
for Replacement/Initial Nonimmigrant Arrival-Departure Document, (OMB
control number 1615-0079) but it makes no substantive changes in the
estimated completion burden for or the estimated annual number of
respondents who would submit the collection.
H.R.1 provides that each initial employment authorization for an
alien with parole or TPS shall be valid for a period of 1 year or for
the duration of the alien's parole or TPS. 8 U.S.C. 1803(b)(1), (c)(1),
1809(a). USCIS policy has previously provided for longer authorization
periods or automatic renewal of an EAD.\130\ Thus, the shorter periods
of employment authorization may result in more Forms I-765 being
submitted. USCIS will analyze and revise, as necessary, the approved
information collection for Form I-765 (OMB Control No. 1650-0040) as
required by the PRA to account for the change in respondents. This
revision project is independent of and being conducted outside of this
rulemaking.
---------------------------------------------------------------------------
\130\ See 8 CFR 274A.12(a). USCIS may, in its discretion,
determine the validity period assigned to any document issued
evidencing an alien's authorization to work in the United States.
---------------------------------------------------------------------------
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Freedom of information, Immigration,
Privacy, Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 106
Citizenship and naturalization, Fees, Immigration.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 244
Administrative practice and procedure, Immigration.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Penalties, Reporting and recordkeeping
requirements, Students.
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR parts 103, 106, 208, 244,
and 274a as follows:
PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 is revised to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b, 1372, 1801-1815; 8 U.S.C. 1185 note; 31 U.S.C. 9701; 48
U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.);
E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR
part 2; 31 CFR part 223.
0
2. Amend Sec. 103.7 by revising the introductory text of paragraph (d)
and paragraph (d)(4) to read as follows:
Sec. 103.7 Fees.
* * * * *
(d) Other DHS immigration fees. The following fees are applicable
to one or more of the immigration components of DHS:
* * * * *
(4) Form I-94 fee. (i) For issuance of an Arrival/Departure Record
at a land border port-of-entry: $6.00.
(ii) Each applicant requesting an Arrival/Departure Record from
USCIS, must submit the fee required by 8 U.S.C. 1807.
* * * * *
PART 106--USCIS FEE SCHEDULE
0
3. The authority citation for part 106 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356, 1801--
1815; 48 U.S.C. 1806; Pub. L. 107-609, 115 Stat. 1012; Pub. L. 107-
296, 116 Stat. 2135 (6 U.S.C. 101 note).
0
4. Amend Sec. 106.2 by revising the section heading and the
introductory text of paragraph (c) and adding paragraphs (c)(14) and
(15) to read as follows:
Sec. 106.2 USCIS fees.
* * * * *
(c) G Forms, statutory fees, and non-form fees. A schedule of all
USCIS fees including fees required by law can be viewed on the USCIS
website.
* * * * *
(14) Application for Asylum and for Withholding of Removal, I-589.
To apply for asylum under 8 U.S.C. 1158, the applicant must submit the
fee required by 8 U.S.C. 1802. The fee will be retained and not
returned or refunded when a filed asylum application is rejected
consistent with 8 CFR 103.2(a).
(15) Annual asylum fee. For each calendar year that a Form I-589
remains pending, the applicant must pay an
[[Page 22972]]
annual asylum fee as required by 8 U.S.C. 1808 within 30-days of the
date the notice is sent.
(i) DHS will send each applicant a notice informing them that their
annual asylum fee is due, when it is due, and how it must be paid; and
(ii) If the annual asylum fee is not paid, the asylum application
will be rejected.
* * * * *
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
5. The authority citation for part 208 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282, 1802,
1808; 48 U.S.C. 1806; 8 CFR part 2.
0
6. Amend Sec. 208.3 by:
0
a. Revising paragraph (c)(3);
0
b. Removing the word ``and'' at the end of paragraph (c)(4);
0
c. Removing the period at the end of paragraph (c)(5) and adding ``;
and'' in its place; and
0
d. Adding paragraph (c)(6).
The revision and addition read as follows:
Sec. 208.3 Form of application.
* * * * *
(c) * * *
(3) An asylum application must be signed and include a response to
each of the questions contained in the application, the materials
required by paragraph (a)(1) of this section, and any required fee;
otherwise, it will be deemed an incomplete filing. An incomplete
application will be rejected and will:
(i) Not commence the period after which the applicant may file an
application for employment authorization in accordance with Sec.
208.7;
(ii) Be returned by mail (if the request is filed on paper) to the
applicant within 30 days of the receipt of the application by the
Service. If the Service has not mailed the incomplete application back
to the applicant within 30 days, it will be deemed complete; and
(iii) Be resubmitted by the applicant as a complete application if
he or she wishes to have the application considered;
* * * * *
(6) If an applicant does not pay the annual asylum fee required by
Sec. 106.2(c)(15) of this chapter within 30 days of the fee notice
date, the application will be rejected and this paragraph (c) shall not
apply.
0
7. Amend Sec. 208.7 by revising paragraphs (a)(1) and (b)(1) and (2)
and adding paragraph (b)(3) to read as follows:
Sec. 208.7 Employment authorization.
(a) * * *
(1) Subject to the restrictions contained in sections 208(d) and
236(a) of the Act, an applicant for asylum who is not an aggravated
felon shall be eligible pursuant to 8 CFR 274a.12(c)(8) and 274a.13(a)
to request employment authorization subject to the following
conditions:
(i) Except in the case of an alien whose asylum application has
been recommended for approval, or in the case of an alien who filed an
asylum application prior to January 4, 1995, the application shall be
submitted no earlier than 150 days after the date on which a complete
asylum application submitted in accordance with Sec. Sec. 208.3 and
208.4 has been received. The 150-day period will not start if the
asylum application is rejected as incomplete in accordance with Sec.
208.3(c)(3).
(ii) In the case of an applicant whose asylum application has been
recommended for approval, the applicant may apply for employment
authorization when he or she receives notice of the recommended
approval.
(iii) USCIS will reject an application for employment authorization
submitted by an applicant whose asylum application has been denied or
rejected.
(iv) If an asylum application is denied or rejected prior to a
decision on a pending application for employment authorization, the
application for employment authorization shall be denied.
* * * * *
(b) * * *
(1) If the asylum application is denied or rejected by USCIS, the
employment authorization shall terminate immediately. This termination
does not apply where USCIS refers the asylum application to an
immigration judge pursuant to Sec. 208.14(c)(1) or (c)(4).
(2) If the asylum application is denied or rejected by an
immigration judge, the employment authorization shall terminate
immediately on the date that is 30 days after the date on which an
immigration judge denies or rejects an asylum application, unless the
alien submits an appeal to the Board of Immigration Appeals as provided
by 8 CFR 1003.38.
(3) If Board of Immigration Appeals denies an appeal of a denial or
rejection of an asylum application, employment authorization shall
terminate immediately.
* * * * *
PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
0
8. The authority citation for part 244 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note, 1803, 1811; 8 CFR
2.9.
0
9. Amend Sec. 244.5 by adding paragraph (d) to read as follows:
Sec. 244.5 Temporary treatment benefits for eligible aliens.
* * * * *
(d) Employment authorization validity for prima facie-eligible
aliens. Initial employment authorization provided under this section to
an applicant afforded temporary treatment benefits based on a prima
facie showing of eligibility will be valid for a period of 1 year or
for the remaining duration of the country's designation of Temporary
Protected Status, whichever is shorter. If the country's designation of
Temporary Protected Status has not terminated by the expiration of the
authorized period of employment authorization, the alien must obtain a
renewal to continue employment authorization. The renewal will be valid
for 1 year or for the remaining duration of the country's designation
of Temporary Protected Status, whichever is shorter.
0
10. Amend Sec. 244.12 by revising paragraphs (a) and (d) to read as
follows:
Sec. 244.12 Employment authorization.
(a) Upon approval of an application for Temporary Protected Status,
USCIS shall grant employment authorization and, subject to 8 CFR
274a.12(a), issue an employment authorization document valid for a
period of 1 year or for the remaining duration of the country's
designation of Temporary Protected Status, whichever is shorter. If the
country's designation of Temporary Protected Status has not terminated
by the expiration of the employment authorization period, the alien
must obtain a renewal to continue employment authorization, which will
be valid for 1 year or for the remaining duration of the country's
designation of Temporary Protected Status, whichever is shorter.
* * * * *
(d) If the application is renewed or appealed in deportation or
exclusion proceedings, or pending administrative appeal pursuant to
Sec. 244.18(b), employment authorization will be extended during the
pendency of the renewal and/or appeal, subject to the limitation in
section paragraph (a) of this section.
[[Page 22973]]
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
11. The authority citation for part 274a is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 28
U.S.C. 2461; 8 CFR part 2.
0
12. Amend Sec. 274a.12 by revising paragraphs (a)(12) and (c)(19) to
read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) * * *
(12) An alien granted Temporary Protected Status under section 244
of the Act for the period of time described in 8 CFR 244.12, as
evidenced by an employment authorization document issued by the
Service;
* * * * *
(c) * * *
(19) An alien applying for Temporary Protected Status pursuant to
section 244 of the Act must apply for employment authorization in
accordance with the procedures set forth in 8 CFR part 244. Employment
authorization and any document evidencing employment authorization
issued under this paragraph (c)(19) are subject to the limitations
described in 8 CFR 244.5.
* * * * *
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-08333 Filed 4-28-26; 8:45 am]
BILLING CODE 9111-97-P
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</html>Indexed from Federal Register on April 29, 2026.
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