Proposed Rule2026-09007
Fee Adjustment for U.S. Immigration and Customs Enforcement Form I-246, Application for a Stay of Deportation or Removal
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
May 7, 2026
Issuing agencies
Homeland Security Department
Abstract
DHS proposes to increase the fee for adjudicating Form I-246, Application for a Stay of Deportation or Removal, from $155 to $755. The rule proposes to adjust the Form I-246 fee to recover costs, which has not been adjusted since 1989. DHS also proposes to make technical edits to the stay of deportation and removal fee regulation.
Full Text
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<title>Federal Register, Volume 91 Issue 88 (Thursday, May 7, 2026)</title>
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[Federal Register Volume 91, Number 88 (Thursday, May 7, 2026)]
[Proposed Rules]
[Pages 24739-24745]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-09007]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 88 / Thursday, May 7, 2026 / Proposed
Rules
[[Page 24739]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 103
[DHS Docket No. ICEB-2020-0005]
RIN 1653-AA82
Fee Adjustment for U.S. Immigration and Customs Enforcement Form
I-246, Application for a Stay of Deportation or Removal
AGENCY: U.S. Immigration and Customs Enforcement (ICE), Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: DHS proposes to increase the fee for adjudicating Form I-246,
Application for a Stay of Deportation or Removal, from $155 to $755.
The rule proposes to adjust the Form I-246 fee to recover costs, which
has not been adjusted since 1989. DHS also proposes to make technical
edits to the stay of deportation and removal fee regulation.
DATES: Electronic comments must be submitted on or before July 6, 2026.
ADDRESSES: You may submit comments on the entirety of this proposed
rule, identified by Docket No. ICEB-2020-0005, through the following
method:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions to submit comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS officials, will not be
considered comments on the proposed rule, and may not receive a
response from DHS. Please note that DHS cannot accept any comments that
are mailed, hand delivered, or couriered. In addition, DHS cannot
accept mailed comments contained on any form of digital media storage
devices, such as CDs/DVDs and USB drives. If you cannot submit your
material using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
FOR FURTHER INFORMATION CONTACT: Office of the Principal Legal Advisor,
Regulatory Affairs Unit, U.S. Immigration and Customs Enforcement,
Department of Homeland Security, 500 12th Street SW, Washington, DC
20536-5901. Telephone 202-732-6960 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Acronyms and Abbreviations
ABC Activity-Based Costing
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive Order
EOIR Executive Office of Immigration Review
FTE Full Time Equivalent
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration Customs Enforcement
INA Immigration and Nationality Act
INS Immigration and Naturalization Service
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
NEPA National Environmental Policy Act
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
SFFAS Statement of Federal Financial Accounting Standards
U.S.C. United States Code
II. Public Participation
DHS encourages all interested parties to participate in this
rulemaking by submitting data, views, comments, and arguments on all
aspects of this proposed rule. Comments providing the most assistance
to DHS will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include the data,
information, or authority that supports the recommended change. See the
ADDRESSES section above for information on where to submit comments.
A. Submitting Comments
To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and insert ``ICEB-2020-0005'' in the ``Search'' box. Click on the
``Comment'' box and input your comments in the text box provided. When
you are satisfied with your comments, follow the prompts, and then
click ``Submit Comment.''
DHS will post comments to the federal e-Rulemaking portal at
<a href="https://www.regulations.gov">https://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 is offensive. For additional information,
please read the ``Privacy & Security Notice,'' via the link in the
footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. DHS will consider all comments
and materials received during the comment period and may change this
rule based on comments received.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
insert ``ICEB-2020-0005'' in the ``Search'' box. Next, click on
``Dockets Folder,'' then on the name of the rule, and finally on
``Browse All Comments.'' Individuals without internet access can make
alternate arrangements for viewing comments and documents related to
this rulemaking by contacting the individual listed in the FOR FURTHER
INFORMATION CONTACT section above. 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.
III. Background and Purpose
A. Legal Authority
The Homeland Security Act of 2002 (HSA) provides the Secretary of
Homeland Security (the Secretary) a broad range of immigration
authorities. Section 102 of the HSA (Pub. L. 107-296, 116 Stat. 2135),
6 U.S.C. 112, and section 103(a)(1) and (3) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1103(a)(1), (3), charge the Secretary
with the administration and enforcement of the immigration and
naturalization laws of the United States. Section 241 of the INA
authorizes the Secretary to grant a stay of deportation or removal
(hereafter referred to as ``stay'') in the Secretary's unreviewable
discretion. See INA sec. 242(g), 8 U.S.C. 1252(g) (stripping the
federal courts of jurisdiction to hear any case or claim arising from
the decision to execute removal orders).\1\ The regulations
[[Page 24740]]
implementing the Secretary's authority to stay deportation or removal
that are applicable to U.S. Immigration and Customs Enforcement (ICE),
a component of the Department of Homeland Security (DHS), include 8 CFR
241.6 and 8 CFR 103.7. Through delegation of powers from the
Secretary,\2\ ICE is authorized to adjudicate applications for stays
submitted to ICE. See INA sec. 241(c)(2), 8 U.S.C. 1231(c)(2) and 8 CFR
241.6.\3\
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\1\ However, the INA provides alternative methods for a
petitioner to contest a removal order, including a petition for
review filed in the court of appeals. See, e.g., INA 242(a)(2)(D).
\2\ Under the Homeland Security Act, references to the
``Attorney General'' in the INA also encompass the Secretary, either
solely or additionally, with respect to the statutory authorities
vested in the Secretary in the Homeland Security Act or subsequent
legislation. See 6 U.S.C. 557.
\3\ See also DHS Delegation of Authority to the Assistant
Secretary for U.S. Immigration and Customs Enforcement. (DHS Do. No.
7030.2 (a)(w)).
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Section 286(m) of the INA authorizes the Secretary to set and
collect fees for providing adjudication and naturalization services.\4\
The statute authorizes DHS to set fees at an amount that would collect
the full cost of providing the services.\5\ The fee level may also
include recovery of any additional costs associated with the
administration of the fees.\6\ All fees collected under these
authorities are deposited as offsetting receipts into the Immigration
Examinations Fee Account and are available to the Secretary until
expended for authorized purposes. See 8 U.S.C. 1356(m), (n). The
current fee for Form I-246, Application for a Stay of Deportation or
Removal, and ICE's authority to waive the fee are set forth in 8 CFR
103.7(d)(6).
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\4\ 8 U.S.C. 1356(m) authorizes the Secretary to set and collect
fees at a level that would ensure recovery of the full costs of
providing such services, including the costs of providing similar
services without charge to asylum applicants and certain other
immigrants.
\5\ Id.
\6\ Id.
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As a general matter, in developing fees and fee rules, DHS looks to
a range of governmental accounting provisions. The Office of Management
and Budget (OMB) Circular No. A-25, User Charges (Revised), sets
federal policy regarding user fees assessed for Government services and
for the sale or use of Government goods or resources. OMB Circular A-25
provides guidance to executive branch agencies regarding the scope and
type of activities subject to user fees and how to set such user
fees.\7\ It applies to all federal activities that convey special
benefits to recipients beyond those accruing to the general public. OMB
Circular A-25, para. 6, 58 FR 38142 (July 15, 1993), defines ``full
cost'' to include all direct and indirect costs to any part of the
federal government for providing a good, resource, or service. These
costs include, but are not limited to, an appropriate share of the
following: direct and indirect personnel cost, physical overhead,
consulting and other indirect cost, management and supervisory cost,
investigation, information collection and research, and establishment
of standards and regulation, including any required environmental
review. Section 31.5 of OMB Circular A-11, Preparation, Submission and
Execution of the Budget, July 1, 2016, directs agencies to develop user
charge estimates based on the full cost recovery policy set forth in
OMB Circular A-25, (budget formulation and execution policy regarding
user fees).
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\7\ By policy, OMB Circular A-25 shall be applied by agencies in
their assessment of user charges under Title V of the Independent
Offices Appropriations Act of 1952 (31 U.S.C. 9701), however, OMB
Circular A-25 merely provides guidance to agencies regarding their
assessment of user charges under other statutes, such as here, where
ICE is assessing a fee authorized under 8 U.S.C. 1356(m).
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The Federal Accounting Standards Advisory Board (FASAB) Statement
of Federal Financial Accounting Standards (SFFAS) No. 4: Managerial
Cost Accounting Concepts and Standards for the Federal Government, July
31, 1995, updated June 2017, provides the standards for managerial cost
accounting and full cost. SFFAS No. 4 defines ``full cost'' to include
``direct and indirect costs that contribute to the output, regardless
of funding sources.'' FASAB identifies various classifications of costs
to be included and recommends various methods of cost assignment to
identify full cost.
B. Background
After an alien becomes subject to an administratively final order
of deportation or removal from the United States, ICE has discretion to
grant a stay to temporarily delay the alien's physical removal. Aliens
may apply for a stay with ICE by filing Form I-246, Application for a
Stay of Deportation or Removal, under 8 CFR 241.6.\8\ Aliens may apply
for a stay from ICE once they are subject to an administratively final
order of deportation or removal. An order is final when all available
administrative appeals of a removal or deportation order have been
exhausted, and the only remaining step is the alien's physical
removal.\9\ A stay is not considered an immigration benefit or waiver
because it only provides temporary delay in the physical removal of the
alien.
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\8\ Pursuant to different authorities, stays of removal may also
be granted in certain circumstances by the Department of Justice's
Executive Office for Immigration Review (EOIR) and the federal
courts.
\9\ But see Hechavarria v. Sessions, 891 F.3d 49, 55-56 (2d Cir.
2018) (holding sec. 1231 does not govern when the appellate court
stays removal); Leslie v. Att'y Gen., 672 F.3d 265, 270 (3d Cir.
2012) (same).
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When adjudicating an alien's application for a stay, in its
discretion, ICE considers a number of factors, including the presence
of compelling humanitarian reasons to delay the removal and if
immediate physical removal is practicable or appropriate. For instance,
ICE may take into consideration circumstances such as if the alien has
a serious medical condition, is a minor, is required to be present in
U.S. court proceedings, or other such circumstances that may result in
a determination that physical removal is not in the public interest.
Activities related to the adjudication of an application for an
administrative stay of removal consist of, but are not limited to,
conducting interviews, reviewing documentation, detecting and deterring
fraud, and assessing eligibility to remain temporarily in the United
States. When a stay is determined to be in the interest of the
government or the public, ICE may use its discretion to grant a stay
for a set period and under conditions that ICE determines are
appropriate. When applying to ICE for a stay, the alien must file Form
I-246 and pay the filing fee. This proposed rule seeks to adjust the
filing fee that the alien must pay in the absence of an approved fee
waiver.
An alien who is unable to pay the fee may request a fee waiver for
Form I-246. Under the current procedures, ICE adjudicates fee waiver
requests for Form I-246 based on its internal fee waiver policy
established in 2008.\10\ Aliens can apply for a fee waiver for Form I-
246 by submitting an affidavit or declaration to the officer that
details their financial circumstances and their inability to pay the
prescribed fee. The affidavit or declaration must be made under the
penalty of perjury pursuant to 28 U.S.C. 1746. ICE does not require a
specific form to be completed by aliens for the fee waiver. These
procedures are flexible in that it does not specifically prescribe a
set of evidentiary documents but rather allows the applicant to provide
any relevant documentation that may assist the ICE officer in assessing
the applicant's inability to pay.
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\10\ U.S. Immigration and Customs Enforcement, Fee Waiver
Guidelines (Feb. 11, 2008), <a href="https://www.ice.gov/doclib/foia/policy/11023.1_FeeWaiverGuidelines.pdf">https://www.ice.gov/doclib/foia/policy/11023.1_FeeWaiverGuidelines.pdf</a>.
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[[Page 24741]]
IV. Proposed Changes
A. Form I-246 Fee Adjustment
The Chief Financial Officers Act, 31 U.S.C. 901-03, requires
agencies to review, on a biennial basis, the fees imposed by the agency
for services it provides and to recommend changes to the agency's fees.
Since 1989, the fee, which was intended to cover the costs associated
with adjudication, has remained at $155,\11\ and currently does not
account for inflation or the current costs associated with adjudicating
Form I-246. ICE is now proposing to update the fee to recover the costs
associated with Form I-246. Going forward, ICE will adhere to the
biennial fee review requirements established by the Chief Financial
Officers Act and expects to adjust its fees more periodically.
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\11\ See INS/EOIR Fee Schedule, 54 FR 13513 (April 4, 1989).
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ICE conducted a fee analysis in 2025, based on a labor survey in
the Spring of 2020,\12\ which showed that the current Form I-246 fee
does not cover the full cost of adjudicating the form. According to
ICE's 2025 fee analysis, it would cost approximately $755 to cover the
costs of adjudicating each stay request. This cost includes costs
associated with the form including labor, equipment, and overhead costs
for the personnel involved in review and adjudication. The fee analysis
has been posted for review in the rulemaking docket for this rule at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
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\12\ In the spring of 2025, ICE confirmed with ERO leadership
that the conclusions of the survey remain representative of current
Form I-246 adjudication activities.
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A $755 fee would cover the costs required for providing
adjudication services, which include customer support, fraud detection,
background checks, and administrative tasks. Increasing the fee to $755
would also reallocate the costs of processing the Form I-246 to those
receiving the direct services, thereby ensuring that the U.S. taxpayers
do not bear a disproportionate burden in funding the immigration
system. This fee increase generally aligns with Executive Order (E.O.)
14218, Ending Taxpayer Subsidization of Open Borders,\13\ which
emphasizes the need to ``prevent taxpayer resources from acting as a
magnet and fueling illegal immigration to the United States, and to
ensure, to the maximum extent permitted by law, that no taxpayer-funded
benefits go to unqualified aliens.'' Notably, aliens seeking a stay of
removal are subject to final orders of removal and are consequently
present in the United States unlawfully. The aliens are requesting that
DHS delay the execution of a lawful removal order through the exercise
of DHS' discretion and not as a matter of right or procedural due
process. As such, the burden and costs associated with adjudicating and
processing the request for stay should not be imposed on the taxpayers.
To continue fulfilling its mission and supporting DHS priorities, DHS
is proposing this fee increase for Form I-246.
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\13\ E.O. 14218, Ending Taxpayer Subsidization of Open Borders,
90 FR 10581 (Feb. 19, 2025).
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DHS proposes to exercise its discretion to increase the fee for
Form I-246 to recover the labor costs in adjudicating the form. See INA
section 286(m), 8 U.S.C. 1356(m). DHS proposes increasing the Form I-
246 fee from $155 to $755.
DHS is cognizant of the potential increased economic burden this
fee change may have on applicants and notes that fee waivers may
continue to be requested. DHS believes that the availability of fee
waivers will alleviate the financial burden on aliens who are unable to
pay the new fee for Form I-246. DHS is also aware that an increased fee
may dissuade aliens with limited means from submitting Form I-246. DHS
believes that the availability of fee waivers sufficiently ensures that
aliens are not discouraged from applying for a stay of removal due to
their limited means or inability to pay.
B. Technical Changes
DHS proposes to make non-substantive technical changes for clarity
and accuracy including revising outdated language in the Form I-246 fee
provision, 8 CFR 103.7(d)(6). These changes are minor and technical. In
this provision, DHS proposes to remove the reference to 8 CFR part 243,
which has been reserved, and replace it with the correct reference to 8
CFR part 241.\14\ DHS also proposes to add the term ``removal'' for
consistency with the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) and with Form I-246. The regulation
currently references a ``stay of deportation,'' but Form I-246 and
IIRIRA use the phrase ``stay of deportation and removal.'' These
proposed changes would make the regulation consistent with the passage
of IIRIRA in 1996 and Form I-246.
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\14\ See 8 CFR 243--[Reserved] and 8 CFR 103.7(d)(6) (Filing for
application for stay of deportation under 8 CFR part 243).
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V. Statutory and Regulatory Requirements
A. Executive Orders 12866, 14192 and 13563
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.''
This rule has not been designated a ``significant regulatory
action'' as defined under section 3(f) of E.O. 12866. Accordingly, the
rule has not been reviewed by OMB.
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).
DHS is proposing to increase the Form I-246 fee from $155 to $755.
DHS last adjusted the Form I-246 fee in 1989. DHS is proposing to
adjust the fee upward to recover the costs of adjudicating the
form.\15\ This proposed change would result in an increase in transfers
from fee payers to ICE.
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\15\ DHS conducted a fee analysis in 2025, based on a labor
survey conducted in the Spring of 2020, which showed that the
current Form I-246 fee does not cover the cost of adjudicating the
form. According to DHS's 2025 fee analysis, DHS determined that
approximately $755 to cover the costs of adjudicating each stay
request, which is subject to increase due to economic factors in the
future. The fee analysis has been posted for review in the
rulemaking docket for this rule at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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DHS is also proposing technical revisions of outdated language in 8
CFR
[[Page 24742]]
103.7(d)(6). These changes would improve clarity by updating references
and aligning the language with the IIRIRA and Form I-246. The technical
changes do not alter user fees or impose any burden. The technical
changes introduce no substantive changes, are not expected to raise
existing costs, and do not impose any additional burden on applicants
or DHS.
Incremental Transfers
Transfer payments are monetary payments from one group to another
that do not affect the total resources available to society.\16\
Transfers such as insurance payments, fees, direct subsidies, and
indirect subsidies can have significant efficiency effects in addition
to distributional effects and are not included in the estimates of the
benefits and costs of a regulation. Transfers are analyzed in this
proposed rule because the proposed increase in the Form I-246 fee is a
transfer from the fee payers to ICE. DHS is not proposing new
adjudication activity or new costs from this proposed rule.
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\16\ OMB Circular A-4, Regulatory Analysis (2003).
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DHS estimated the size of the transfer that would occur from DHS
increasing the fee by $600, from $155 to $755 per application. Table 1
illustrates the incremental fee increase DHS is proposing. Aliens who
submit a Form I-246 would pay an additional $600 under this proposed
rule, a 387 percent increase from the current fee.
Table 1--Fee Increase
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Difference (new- Percent
Type Current fee New fee current) increase
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I-246........................................ $155 $755 $600 387
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Total Transfers
To estimate the total transfers, DHS used the number of I-246 fee
payments received from FY 2016 to 2025 to estimate the annual number of
I-246 fee payments. The annual number of I-246 fee payments in the last
ten years has varied significantly, as high as 10,494 payments in
FY2017 and as low as 1,537 payments in FY2022. In FY2025, ICE received
3,745 I-246 fee payments. ICE plans to conduct a biennial fee review in
accordance with the Chief Financial Officers Act. Therefore, ICE uses a
two-year regulatory analysis period of FY2026 through FY2027. Due to
uncertainty in the number of fee payments, based on the high number
variance and no trendline in the data, ICE assumes that FY2026 and
FY2027 will be similar to FY2025 for the estimates. DHS estimated the
anticipated number of fee payments in FY2026 and FY 2027 to be 3,745,
equal to the number of fee payments received in FY2025. DHS then
determined the annual transfer increase as the product of the fee
increase and the estimated annual number of I-246 fees paid. DHS
estimates that the fee increase would result in an increase in annual
transfers from the public to the government of $2.25 million in FY2026
and FY2027.\17\ Table 2 displays the annual increase in transfers.
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\17\ The estimate of fee payments does not include Form I-246
filings that have had their fees waived. Thus, there were likely
more filings than payments for each of the years accounted for in
this estimate. DHS cannot estimate the number of fee waivers that
will be received because ICE has very little data on fee waivers
approved in the past.
Table 2--Transfer from the Fee Change
[$ 2024]
----------------------------------------------------------------------------------------------------------------
Nominal transfer per form Forecasted number of Annual increase in
FY Year (from change in fee) payments per year transfers
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2026-2027......................... $600 3,745 $2.25 million
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DHS acknowledges that an increase in the fee could increase the
number of fee waivers requested. However, DHS does not have data on fee
waivers approved in the past to estimate the potential impacts of a fee
increase. Approval of fee waivers is at the discretion of the ICE
personnel and the number of fee waivers is not limited. Any increase in
fee waivers, however small, would have the effect of reducing the size
of the amount of the transfer.
Benefits
Since 1989, the Form I-246 fee has remained static. The current fee
is not sufficient to recover ICE's full cost, including labor costs to
adjudicate each stay request. The proposed fee adjustment would cover
costs of adjudicating the form, support ICE efforts to maintain the
current level of service, and better distribute the costs of
adjudication to those receiving the direct services. This fee increase
generally aligns with E.O. 14218,\18\ which emphasizes the need to
``prevent taxpayer resources from acting as a magnet and fueling
illegal immigration to the United States, and to ensure, to the maximum
extent permitted by law, that no taxpayer-funded benefits go to
unqualified aliens.''
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\18\ E.O. 14218, Ending Taxpayer Subsidization of Open Borders,
90 FR 10581 (Feb. 19, 2025).
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Alternatives
DHS considered the following alternatives for this proposed rule.
DHS considered allowing the Form I-246 fee to remain unchanged.
However, as previously stated, the Chief Financial Officers Act of
1990, requires each agency to review, on a biennial basis, the fees
imposed by the agency for services and make recommendations on revising
those charges to reflect cost incurred. DHS's 2025 fee analysis showed
that the current Form I-246 fee does not cover the cost of adjudicating
the form. Given that DHS has not increased the fee since 1989 and DHS
is not recovering its cost in adjudicating the Form I-246, DHS rejected
this alternative.
DHS also considered changing the fee to $395, using the CPI-U to
adjust the fee upward to account for changes in inflation between 1989
and 2024. An inflation-adjusted fee of $395 for filing Form I-246 in
2024 would reflect approximately the same purchasing
[[Page 24743]]
power as the $155 fee did in 1988.\19\ This option would allow DHS to
recover more of the adjudication costs from applicants while being
cognizant of the increased burden on applicants. However, DHS rejected
this option because this method would only account for a general
increase in CPI rather than the adjusted costs of adjudicating the
form. This option is inconsistent with the congressional intent for DHS
to recover the costs of adjudicating the form and with the 1989 fee
analysis that created and set the fee for cost recovery. Using this
method, ICE would require a relatively greater level of appropriated
funds to recover the costs not covered by the inflation adjusted
alternative fee.
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\19\ U.S. Bureau of Labor Statistics, CPI for All Urban
Consumers (CPI-U), available at <a href="https://data.bls.gov/timeseries/CUUR0000SA0?years_option=all_years">https://data.bls.gov/timeseries/CUUR0000SA0?years_option=all_years</a>. The last full calendar year of
data available at the time of this analysis was 2024. DHS calculated
the inflation adjustment by comparing the average CPI-U in 1989
(123.967), the year when the fee was set to $155, with the average
CPI-U for 2024 (313.689). This resulted in an inflation adjustment
factor of 1.530, and then multiplied the inflation adjustment factor
by the current fee of $155 to calculate the inflation increment of
$237.15, resulting in a total inflation adjusted fee of $395
(rounded up from $392).
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DHS also considered a higher fee that would better reflect the pay
scale levels of ICE personnel adjudicating each Form I-246 and the
multiple activities at each step of the adjudication process. As
discussed in the fee analysis, the GS-level of adjudicators varied
between a GS-11 or GS-12, and approximately 30 percent of the work was
completed by supervisors.\20\ However, DHS assumed a typical
adjudicator would be a GS-11 to estimate the fee. In addition, budget
forecasts for operating costs and overhead expenses associated with ICE
personnel are likely to increase in the future. Applying expenses that
reflect operations over a longer term and an average of personnel
levels to estimate the labor costs would have resulted in a higher fee.
This approach would also cover a wider range of input costs associated
with resources needed to support the adjudication process. DHS chose
not to propose this change because the percentage increase from the
current $155 fee to $755 fee already covers a substantial amount of the
labor costs. However, DHS does believe this alternative may be more
aligned with the total cost incurred.
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\20\ For a breakdown of the work hours, see Table 1 of the Fee
Analysis, available on the docket for this rulemaking.
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DHS is seeking public comment on these alternatives, especially the
alternative of setting a higher fee with a different labor cost
estimate.
Total Impact of Proposed Rule
Table 3 presents an accounting statement summarizing the annualized
transfer amounts and the qualitative benefits of the proposed rule.
Table 3--Accounting Statement for FY2026-FY2027
[$ 2024]
----------------------------------------------------------------------------------------------------------------
3 Percent discount 7 Percent discount Source citation (RIA,
Category rate rate preamble, etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized monetized ($Mil)............. None. Preamble, E.O. 12866
analysis.
----------------------------------------------------------------------------------------------------------------
Annualized quantified................... None. Preamble, E.O. 12866
analysis.
----------------------------------------------------------------------------------------------------------------
Qualitative............................. Covers the resources needed for DHS to Preamble, E.O. 12866
provide Form I-246 services. analysis.
Increased regulatory clarity.
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized (2024 $Mil)........ $2.25 $2.25 Preamble, E.O. 12866
analysis.
----------------------------------------------------------------------------------------------------------------
From/To................................. Individual applicants to ICE.
----------------------------------------------------------------------------------------------------------------
Effects on State, Local, and/or Tribal None.
Government.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses............. None. Form I-246 fees are paid by RFA.
individuals who are not, for purposes of
the RFA, within the definition of small
entities established.
----------------------------------------------------------------------------------------------------------------
Wages................................... None.
----------------------------------------------------------------------------------------------------------------
Growth.................................. None.
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
DHS has reviewed this proposed regulation in accordance with the
Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601-612), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, tit. II, 110 Stat. 847, and has determined that
this rule would not have a significant economic impact on a substantial
number of small entities. The rule would not regulate ``small
entities'' as the term is defined in 5 U.S.C. 601(6). 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 people.
By adjusting the Form I-246 fee, this proposed rule would increase
transfers to the government. Form I-246 fees are paid by individuals
who are not, for purposes of the RFA, within the definition of small
entities established by 5 U.S.C. 601(6). While it is possible that some
aliens may pay the fee through a representative, ultimately the alien
is responsible for the Form I-246
[[Page 24744]]
fee, not the representative. Therefore, DHS certifies this proposed
rulemaking would not have a significant economic impact on a
substantial number of small entities.
C. Small Business Regulatory Enforcement Fairness Act of 1996
Pursuant to Section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847,
858-59, DHS wants to assist small entities in understanding this
proposed rule so that they can better evaluate its effects and
participate in the rulemaking. If the proposed rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector in any one year of $100 million
or more in 1995 dollars, updated annually for inflation. That threshold
is currently approximately $206 million in 2024 dollars based on the
Consumer Price Index for All Urban Consumers (CPI-U).\21\ Though this
proposed rule would not result in such an expenditure, DHS does discuss
the effects of this rule elsewhere in this preamble.
---------------------------------------------------------------------------
\21\ See Bureau of Labor Statistics, ``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 September 9, 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; (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% = 106 percent (rounded).
Calculation of inflation-adjusted value: $100 million in 1995
dollars x 2.06 = $206 million in 2024 dollars.
---------------------------------------------------------------------------
E. Paperwork Reduction Act
All Departments are required to submit to OMB for review and
approval any reporting or recordkeeping requirements inherent in a rule
under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109
Stat. 163 (codified at 44 U.S.C. 3501 et seq.). Under the PRA, an
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the agency obtains
approval from OMB for the collection and the collection displays a
valid OMB control number. See 44 U.S.C. 3506, 3507.
This rule does not propose a new ``collection[s] of information''
as that term is defined under the PRA. There would be no changes to the
reporting burden for the existing collection of information associated
with Form I-246 (OMB control number 1653-0021, titled Application for
Stay of Deportation or Removal, expiration date October 31, 2027).
Although DHS proposes to revise the fee amount for Form I-246, there
are no substantive changes to the forms as a result of this rulemaking.
F. Executive Order 13132: Federalism
This proposed rule would not have substantial direct effects on the
states, on the relationship between the federal 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, DHS determined that this rule would not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to
minimize litigation, eliminate ambiguity, and reduce burden.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
DHS has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. DHS has determined that it is not a ``significant
energy action'' under that order because it is a ``significant
regulatory action'' under E.O. 12866 but is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
I. National Environmental Policy Act
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., applies to them and, if so, what degree of analysis is required.
DHS Directive 023-01 Rev. 01 \22\ and Instruction Manual 023-01-001-01
Rev. 01 (Instruction Manual) \23\ establish the policies and procedures
that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\22\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01, Revision 01 (Oct. 31, 2014).
\23\ DHS, Implementation of the National Environmental Policy
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6,
2014).
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish categories of actions
(categorical exclusions) that experience has shown do not, individually
or cumulatively, have a significant effect on the human environment
and, therefore, do not require an environmental assessment (EA) or
environmental impact statement (EIS). An agency is not required to
prepare an EA or EIS for a proposed action ``if the proposed agency
action is excluded pursuant to one of the agency's categorical
exclusions.'' 42 U.S.C. 4336(a)(2). The Instruction Manual, Appendix A,
lists the DHS Categorical Exclusions. For an action to be categorically
excluded under DHS's Instruction Manual, the action 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.\24\
---------------------------------------------------------------------------
\24\ Instruction Manual 023-01-001-01 at V.B(2)(a) through (c)
and Appendix A at A-1-A-2.
---------------------------------------------------------------------------
This proposed rule is categorically excluded from DHS's NEPA
implementing procedures because it satisfies all three relevant
conditions. First, DHS has determined that the proposed rule fits
clearly within categorical exclusions A3(d) of DHS's Instruction
Manual, Appendix A, for the promulgation of rules ``that interpret or
amend an existing regulation without changing its environmental
effect.'' This rule merely proposes to increase the fee for
adjudicating Form I-246 from $155 to $755 and to make minor technical
edits to the stay regulations. DHS proposes to adjust the Form I-246
fee in order to recover the cost of activities needed to sufficiently
review and adjudicate the forms. Second, this proposed rule is a
standalone rule and is not part of any larger action. Third, DHS is not
aware of any extraordinary circumstances that would cause significant
environmental effects. Therefore, this proposed rule is categorically
excluded, and no further NEPA analysis or documentation is required.
[[Page 24745]]
J. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed rule does not have tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it would 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.
K. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not cause a taking of private property or
otherwise have taking implications under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
L. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks, requires agencies to consider the impacts of
environmental health risks or safety risks that may disproportionately
affect children. DHS has reviewed this proposed rule and determined
that this rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children. Therefore, DHS has not prepared a
statement under this E.O.
M. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the OMB, with an explanation of why using these standards would
be inconsistent with applicable law or otherwise impracticable.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, DHS did
not consider the use of voluntary consensus standards.
N. Family Assessment
DHS has determined that this proposed action would not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Pub. L. 105-277, 112 Stat. 2681).
Lists of Subjects in 8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Freedom of Information, Immigration,
Privacy, Reporting and recordkeeping requirements, Surety bonds.
Regulatory Amendments
Accordingly, DHS proposes to amend part 103 of title 8 of the Code
of Federal Regulations as follows:
PART 103--IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b; 31 U.S.C. 9701; 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; Pub. L. 112-54; 125 Stat. 550; 31 CFR
part 223.
0
2. Section 103.7 is amended by revising paragraph (d)(6) to read as
follows:
Sec. 103.7 Fees.
* * * * *
(d) * * *
(6) Form I-246. For filing application for stay of deportation or
removal under 8 CFR part 241: $755. The application fee may be waived
by DHS.
* * * * *
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-09007 Filed 5-6-26; 8:45 am]
BILLING CODE 9111-28-P
</pre></body>
</html>Indexed from Federal Register on May 7, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.