[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3798-3801]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-1853]



[[Page 3797]]

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Part X





Department of Justice





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Immigration and Naturalization Service



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8 CFR Part 103



Adjustment of Immigration Benefit Application Fees; Interim Rule

Federal Register / Vol. 68, No. 16 / Friday, January 24, 2003 / Rules 
and Regulations

[[Page 3798]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 2257-03]
RIN 1115-AG96


Adjustment of Immigration Benefit Application Fees

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule adjusts the immigration benefit application fee 
schedule by subtracting the applicable amount of surcharges used for 
asylum and refugee services, fee exemptions and fee waivers to comply 
with section 457 of the Homeland Security Act of 2002, Public Law 107-
296. Fees collected from persons filing immigration benefit 
applications are deposited into the Immigration Examinations Fee 
Account (IEFA) and used to recover the full cost of processing 
immigration benefit applications and associated administrative costs. 
Federal guidelines require the Immigration and Naturalization Service 
(Service or INS) to establish and collect fees to recover the full 
costs of processing immigration benefit applications.

DATES: Effective date: This rule is effective January 24, 2003.
    Comment date: Written comments must be submitted on or before March 
25, 2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS Number 2257-03 on your correspondence. 
You may also submit comments electronically at insregs@usdoj.gov. When 
submitting comments electronically, you must include INS No. 2257-03 in 
the subject box so that your comments can be properly routed to the 
appropriate office. Comments are available for public inspection at the 
above address by calling (202) 514-3291 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Immigration 
Services Branch, Office of Budget, Immigration and Naturalization 
Service, 425 I Street NW., Room 5307, Washington, DC 20536, telephone 
(202) 514-3410.

SUPPLEMENTARY INFORMATION: 

What Legal Authority Does the Service Have To Charge Fees?

A. Departments of Commerce, Justice, and State, the Judiciary, and 
Related Agencies Appropriation Acts of 1989 and 1991

    With reference to the fees for applications and petitions, the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriation Act, 1989, Public Law 100-459, sec. 209, 102 
Stat. 2186, 2203 (October 1, 1988), authorized the Service to prescribe 
and collect fees to recover the cost of providing certain immigration 
and naturalization benefits. That law also authorized the establishment 
of the IEFA in the Treasury of the United States. All revenue from fees 
collected for immigration and naturalization benefits are deposited in 
the IEFA and remain available to provide immigration and naturalization 
services. 8 U.S.C. 1356(n).
    In subsequent legislation, the Departments of Commerce, Justice, 
and State, the Judiciary, and Related Agencies Appropriations Act, 
1991, Public Law 101-515, sec. 210(d), 104 Stat. 2101, 2121 (November 
5, 1990), Congress further provided that ``fees for providing 
adjudication and naturalization services may be set at a level that 
will ensure recovery of the full costs of providing all such services, 
including the costs of similar services provided without charge to 
asylum applicants or other immigrants. Such fees may also be set at a 
level that will recover any additional costs associated with the 
administration of the fees collected.'' 8 U.S.C. 1356(m).
    The House Conference Report to the bill, entitled ``Making 
Appropriations for the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies For the Fiscal Year Ending September 
30, 1996, and For Other Purposes,'' H.R. Conf. Rep. No. 104-378, at 82 
(1995), directs the Service to fund the cost of the Cuban-Haitian 
Entrant Program from the IEFA. The Report states, ``(t)he conferees 
have also agreed that the activities related to the resettlement of 
Cubans and Haitians should be transferred to the * * * Service and that 
the costs of these activities should be supported by the [IEFA].'' Id.
    In a final rule effective October 13, 1998, except the Form N-400, 
which took effect on January 15, 1999, the Service raised the majority 
of fees to recover the full costs of processing immigration benefit 
applications, and added a ``surcharge'' setting the fees at a level 
sufficient to fund the processing of asylum and refugee applications as 
well as those immigration benefit applications processed at no charge 
to applicants/petitioners.

What Is the Impact of Section 457 of the Homeland Security Act on the 
Current Fee Structure?

    In section 457 of the Homeland Security Act of 2002, Congress 
provided that ``Section 286(m) of the Immigration and Nationality Act 
(8 U.S.C. 1356(m)) is amended by striking ``services, including the 
costs of similar services provided without charge to asylum applicants 
or other immigrants.'' and inserting ``services.''. The deletion of 
this language has the effect of repealing the statutory basis for 
surcharges. The Service is, therefore, required to reduce immigration 
benefit application fees by an average of $50, or 25%, for the 
surcharges applied to the majority of immigration benefit applications 
as stated in 63 FR 1775 (proposed rule January 12, 1998). The surcharge 
amount (as well as the costs of processing immigration benefit 
applications) was subsequently increased by inflation factors as per 66 
FR 65811 (final rule December 21, 2001).
    The following table displays the surcharges per application for 
asylum and refugee services, and for fee exemptions and fee waivers 
(adjusted for inflation).

                            Table 1.--Surcharges per Immigration Benefit Application
----------------------------------------------------------------------------------------------------------------
                                                                                        Fee
              Form No.                       Description              Asylum/       exemptions/        Total
                                                                      refugee         waivers
----------------------------------------------------------------------------------------------------------------
I-17...............................  Petition for Approval of             $34.76          $27.85          $62.61
                                      School for Attendance by
                                      Nonimmigrant Student.
I-90...............................  Application to Replace                19.29           15.46           34.75
                                      Permanent Resident Card.

[[Page 3799]]

 
I-102..............................  Application for Replacement/          15.24           12.21           27.45
                                      Initial Nonimmigrant
                                      Arrival/Departure Record.
I-129..............................  Petition for A Nonimmigrant           18.81           15.08           33.89
                                      Worker.
I-129F.............................  Petition for Alien                    16.38           13.12           29.50
                                      Fiance(e).
I-130..............................  Petition for Alien Relative           19.11           15.32           34.43
I-131..............................  Application for Travel                16.50           13.22           29.72
                                      Document.
I-140..............................  Immigrant Petition for                19.88           15.92           35.80
                                      Alien Worker.
I-191..............................  Application for Permission            29.45           23.59           53.04
                                      to Return to an
                                      Unrelinquished Domicile.
I-192..............................  Application for Advance               29.45           23.59           53.04
                                      Permission to Enter as a
                                      Nonimmigrant.
I-193..............................  Application for Waiver of             29.45           23.59           53.04
                                      Passport and/or Visa.
I-212..............................  Application for Permission            29.45           23.59           53.04
                                      to Reapply for Admission
                                      into the U.S. After
                                      Deportation or Removal.
I-485..............................  Application to Register               38.53           30.88           69.41
                                      Permanent Residence or to
                                      Adjust Status.
I-526..............................  Immigrant Petition by Alien           60.85           48.75          109.60
                                      Entrepreneur.
I-539..............................  Application to Extend/                20.94           16.77           37.71
                                      Change Nonimmigrant Status.
I-600/600A.........................  Petition to Classify Orphan           70.79           56.72          127.51
                                      as an Immediate Relative/
                                      Application for Advance
                                      Processing or Orphan
                                      Petition.
I-601..............................  Application for Waiver of             29.45           23.59           53.04
                                      Grounds of Excludability.
I-612..............................  Application for Waiver of             29.45           23.59           53.04
                                      the Foreign Residence
                                      Requirement.
I-751..............................  Petition to Remove the                22.01           17.64           39.65
                                      Conditions on Residence.
I-765..............................  Application for Employment            17.92           14.36           32.28
                                      Authorization.
I-817..............................  Application for Family                20.92           16.76           37.68
                                      Unity Benefits.
I-824..............................  Application for Action on             20.65           16.54           37.19
                                      an Approved Application or
                                      Petition.
I-829..............................  Petition by Entrepreneur to           60.69           48.63          109.32
                                      Remove Conditions.
N-400..............................  Application for                       39.77           31.87           71.64
                                      Naturalization.
N-565..............................  Application for Replacement           23.55           18.87           42.42
                                      Naturalization Citizenship
                                      Document.
N-600..............................  Application for                       28.32           22.69           51.01
                                      Certification of
                                      Citizenship.
N-643..............................  Application for Certificate           22.06           17.67           39.73
                                      of Citizenship in Behalf
                                      of an Adopted Child.
----------------------------------------------------------------------------------------------------------------

    The following table displays the new immigration benefit 
application fees, minus the surcharge (rounded to the nearest $1.00).

                        Table 2.--Current Versus New Immigration Benefit Application Fees
----------------------------------------------------------------------------------------------------------------
              Form No.                       Description              New fee       Current fee       Change
----------------------------------------------------------------------------------------------------------------
I-17...............................  Petition for Approval of               $517            $580           ($63)
                                      School Attendance by
                                      Nonimmigrant Student.
I-90...............................  Application to Replace                   95             130            (35)
                                      Permanent Resident Card.
I-102..............................  Application for Replacement/             73             100            (27)
                                      Initial Nonimmigrant
                                      Arrival/Departure Record.
I-129..............................  Petition for A Nonimmigrant              96             130            (34)
                                      Worker.
I-129F.............................  Petition for Alien                       81             110            (29)
                                      Fianc[eacute](e).
I-130..............................  Petition for Alien Relative              96             130            (34)
I-131..............................  Application for Travel                   80             110            (30)
                                      Document.
I-140..............................  Immigrant Petition for                   99             135            (36)
                                      Alien Worker.
I-191..............................  Application for Permission              142             195            (53)
                                      to Return to an
                                      Unrelinquished Domicile.
I-192..............................  Application for Advance                 142             195            (53)
                                      Permission to Enter as a
                                      Nonimmigrant.
I-193..............................  Application for Waiver of               142             195            (53)
                                      Passport and/or Visa.
I-212..............................  Application for Permission              142             195            (53)
                                      to Reapply for Admission
                                      into the U.S. After
                                      Deportation or Removal.
I-485..............................  Application to Register                 186             255            (69)
                                      Permanent Residence or to
                                      Adjust Status.
I-526..............................  Immigrant Petition by Alien             290             400           (110)
                                      Entrepreneur.
I-539..............................  Application to Extend/                  102             140            (38)
                                      Change Nonimmigrant Status.
I-600/600A.........................  Petition to Classify Orphan             332             460           (128)
                                      as an Immediate Relative/
                                      Application for Advance
                                      Processing or Orphan
                                      Petition.
I-601..............................  Application for Waiver of               142             195            (53)
                                      Grounds of Excludability.
I-612..............................  Application for Waiver of               142             195            (53)
                                      the Foreign Residence
                                      Requirement.
I-751..............................  Petition to Remove the                  105             145            (40)
                                      Conditions on Residence.
I-765..............................  Application for Employment               88             120            (32)
                                      Authorization.
I-817..............................  Application for Family                  102             140            (38)
                                      Unity Benefits.
I-824..............................  Application for Action on               103             140            (37)
                                      an Approved Application or
                                      Petition.
I-829..............................  Petition by Entrepreneur to             286             395           (109)
                                      Remove Conditions.
N-400..............................  Application for                         188             260            (72)
                                      Naturalization.
N-565..............................  Application for Replacement             113             155            (42)
                                      Naturalization Citizenship
                                      Document.
N-600..............................  Application for                         134             185            (51)
                                      Certification of
                                      Citizenship.
N-643..............................  Application for Certificate             105             145            (40)
                                      of Citizenship in Behalf
                                      of an Adopted Child.
----------------------------------------------------------------------------------------------------------------


[[Page 3800]]

What Is the Impact of section 457 of the Homeland Security Act on 
Current Programs?

    The Service recognizes that this statutory amendment has the effect 
of terminating the existing source of funding for the asylum and 
refugee programs and, accordingly, will impair the Service's ability to 
adjudicate applications for these programs. This amendment also 
terminates the existing source of funding for the adjudication of other 
applications for which the Service has granted a fee waiver under the 
relevant standards, thereby eliminating the ability of the Service to 
grant fee waivers and exemptions. However, the Service has no choice in 
taking this action to revise the current fee schedule because Congress 
has mandated that result, effective January 24, 2003.

Good Cause Exception

    This interim rule is effective on January 24, 2003, although the 
Service invites post promulgation comments and will address any such 
comments in a final rule. The Service finds that good cause exists to 
adopt this rule without the prior notice and comment period and delayed 
effective date ordinarily required by 5 U.S.C. 553(b) and (d), since 
section 457 of the Homeland Security Act of 2002, Public Law 107-296 
takes effect on January 24, 2003.

Regulatory Flexibility Act

    The Acting Commissioner, Immigration and Naturalization Service, in 
accordance with 5 U.S.C. 605(b), has reviewed this regulation and by 
approving it has determined that this rule will not have a significant 
economic impact on a substantial number of small entities. The majority 
of applications and petitions are submitted by individuals and not 
small entities as that term is defined in 5 U.S.C. 601(6).
    Although the Service acknowledges that a number of small entities, 
particularly those filing business-related applications and petitions, 
such as Form I-140, Immigrant Petition for Alien Worker; Form I-526, 
Immigrant Petition by Alien Entrepreneur; and Form I-829, Petition by 
Entrepreneur to Remove Conditions, may be affected by this rule, the 
rule will have a positive impact since the Service will be reducing the 
costs of petitions and applications.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for review.
    The Service has assessed both the costs and benefits of this rule 
as required by section 1(b)(6) of Executive Order 12866 and has made a 
determination that the Service has no alternative other than to 
eliminate the surcharge in order to comply with section 457 of Public 
Law 107-296.

Executive Order 13132

    This rule 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 
Executive Order 13132, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule requires that the fees for application and petition forms 
identified in this interim rule be reduced to comply with section 457 
of Public Law 107-296. Since a reduction of these fees will reduce the 
cost burden on the public the Service has submitted the required 
Paperwork Reduction Change Worksheet (OMB-83C) to the Office of 
Management and Budget (OMB) reflecting the new fees and cost burdens on 
the public, and OMB has approved the changes.
    To ensure that the public is fully aware of these changes the new 
fees will be highlighted on the Services Web site at: http://
www.ins.usdoj.gov.

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(government agencies), Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.


    Accordingly, part 103 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

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

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 
Comp., p.166; 8 CFR part 2.


    2. Section 103.7(b)(1) is amended by revising the entries for the 
following forms, to read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-17. For filing a petition for school approval or 
recertification--$517 plus $350 per additional campus listed on Form 
I-17B.
* * * * *
    Form I-90. For filing an application for a Permanent Resident 
Card (Form I-551) in lieu of an obsolete card or in lieu of one 
lost, mutilated, or destroyed, or for a change in name--$95.
* * * * *
    Form I-102. For filing a petition for an application (Form I-
102) for Arrival/Departure Record (Form I-94) or Crewman's Landing 
(Form I-95), in lieu of one lost, mutilated, or destroyed--$73.
    Form I-129. For filing a petition for a nonimmigrant worker, a 
base fee of $96. For filing an H-1B petition a base fee of $96 plus 
an additional $1,000 fee in a single remittance of $1,096. The 
remittance may be in the form of one or two checks (one in the 
amount of $1,000 and the other in the amount of $96). Payment of 
this additional $1,000 fee is not waivable under Sec.  103.7(c)(1). 
Payment of this additional $1,000 fee is not required if an 
organization is exempt under Sec.  214.2(h)(19)(iii) of this 
chapter, and this additional $1,000 fee also does not apply to 
certain filings by any

[[Page 3801]]

employer as provided in Sec.  214.2(h)(19)(v) of this chapter.
    Form I-129F. For filing a petition to classify nonimmigrant as 
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--
$81.
    Form I-130. For filing a petition to classify status of alien 
relative for issuance of immigrant visa under section 204(a) of the 
Act--$96.
    Form I-131. For filing an application for travel documents--$80.
    Form I-140. For filing a petition to classify preference status 
of an alien on the basis of profession or occupation under section 
204(a) of the Act--$99.
* * * * *
    Form I-191. For filing applications for discretionary relief 
under section 212(c) of the Act--$142.
    Form I-192. For filing an application for discretionary relief 
under section 212(d)(3) of the Act, except in an emergency case, or 
where the approval of the application is in the interest of the 
United States Government--$142.
    Form I-193. For filing an application for waiver of passport 
and/or visa--$142.
* * * * *
    Form I-212. For filing an application for permission to reapply 
for an excluded, deported or removed alien, an alien who has fallen 
into distress, an alien who has been removed as an alien enemy, or 
an alien who has been removed at government expense in lieu of 
deportation--$142.
* * * * *
    Form I-485. For filing an application for permanent resident 
status or creation of a record of lawful permanent residence--$186 
for an applicant 14 years of age or older; $160 for an applicant 
under the age of 14 years; no fee for an applicant filing as a 
refugee under section 209(a) of the Act.
* * * * *
    Form I-526. For filing a petition for an alien entrepreneur--
$290.
* * * * *
    Form I-539. For filing an application to extend or change 
nonimmigrant status--$102.
* * * * *
    Form I-600. For filing a petition to classify orphan as an 
immediate relative for issuance of immigrant visa under section 
204(a) of the Act. (When more than one petition is submitted by the 
same petitioner on behalf of orphans who are brothers or sisters, 
only one fee will be required.)--$332.
    Form I-600A. For filing an application for advance processing of 
orphan petition. (When more than one petition is submitted by the 
same petitioner on behalf of orphans who are brothers or sisters, 
only one fee will be required.)--$332.
    Form I-601. For filing an application for waiver of ground of 
inadmissibility under section 212(h) or (i) of the Act. (Only a 
single application and fee shall be required when the alien is 
applying simultaneously for a waiver under both those 
subsections.)--$142.
    Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$142.
* * * * *
    Form I-751. For filing a petition to remove the conditions on 
residence, based on marriage--$105.
    Form I-765. For filing an application for employment 
authorization pursuant to 8 CFR 274a.13--$88.
* * * * *
    Form I-817. For filing an application for voluntary departure 
under the Family Unity Program--$102.
* * * * *
    Form I-824. For filing for action on an approved application or 
petition--$103.
    Form I-829. For filing a petition by entrepreneur to remove 
conditions--$286.
* * * * *
    Form N-400. For filing an application for naturalization--$188.
* * * * *
    Form N-565. For filing an application for a certificate of 
naturalization or declaration of intention in lieu of a certificate 
or declaration alleged to have been lost, mutilated, or destroyed; 
for a certificate of citizenship in a changed name under section 
343(c) of the Act; or for a special certificate of naturalization to 
obtain recognition as a citizen of the United States by a foreign 
state under section 343(b) of the Act--$113.
    Form N-600. For filing an application for a certificate of 
citizenship under section 309(c) or section 341 of the Act--$134.
    Form N-643. For filing an application for a certificate of 
citizenship on behalf of an adopted child--$105.
* * * * *

    Dated: January 23, 2003.
Michael J. Garcia,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 03-1853 Filed 1-23-03; 11:21 am]
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