[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 20528-20536]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-8699]



[[Page 20527]]

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Part IV





Department of Homeland Security





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8 CFR Part 103



Adjustment of the Immigration Benefit Application Fee Schedule; Final 
Rule

Federal Register / Vol. 69, No. 73 / Thursday, April 15, 2004 / Rules 
and Regulations

[[Page 20528]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 103

[CIS No. 2233-02]
RIN 1615-AA84


Adjustment of the Immigration Benefit Application Fee Schedule

AGENCY: Department of Homeland Security, Bureau of Citizenship and 
Immigration Services.

ACTION: Final rule and confirmation of interim rules.

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SUMMARY: This rule adjusts the fee schedule of the Immigration 
Examinations Fee Account (IEFA) for immigration benefit applications 
and petitions, as well as the fee for capturing biometric information 
of applicants or petitioners who apply for certain immigration 
benefits. Fees collected from persons filing immigration benefit 
applications are deposited into the IEFA and used to fund the full cost 
of providing immigration benefits; the full cost of providing similar 
benefits to asylum and refugee applicants; and the full cost of similar 
benefits provided to other immigrants, as specified in the regulation, 
at no charge. This rule adjusts the immigration benefit application 
fees by approximately $55 per application, and increases the biometric 
fee by $20, in order to ensure sufficient funding to process incoming 
applications. In addition, on January 24, 2003, and February 27, 2003, 
the former Immigration and Naturalization Service (INS) published two 
interim rules that first adjusted fees lower based on section 457 of 
the Homeland Security Act of 2002, and then readjusted the fees to 
preexisting levels, based upon the repeal of section 457. Accordingly, 
this final rule will adopt the two interim rules as final without 
change, and will adopt the fee structure that was proposed on February 
3, 2004.

DATES: This final rule is effective April 30, 2004. Applications or 
petitions mailed, postmarked, or otherwise filed, on or after this date 
require the new fee.

FOR FURTHER INFORMATION CONTACT: Paul L. Schlesinger, Acting Budget 
Director, Office of Budget, U.S. Citizenship and Immigration Services, 
425 I Street, NW., Room 5307, Washington, DC 20536, telephone (202) 
514-3206.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Bureau of Citizenship and Immigration Services (BCIS) published 
a proposed rule in the Federal Register on February 3, 2004, at 69 FR 
5088, to adjust the application fee schedule of the IEFA. The proposed 
rule was published with a 30-day comment period, which closed on March 
4, 2004. The BCIS received 278 comments pertaining to the adjustment of 
the immigration benefit application fee schedule. This final rule 
implements the fee structure as outlined in the proposed rule, without 
change except for several nonsubstantive technical changes (described 
further below) to update references in light of the Homeland Security 
Act and revise references to fees that relate to Department of Justice 
(DOJ) proceedings in light of DOJ fee regulations at 8 CFR parts 1003 
and 1103. Any applications or petitions mailed, postmarked, or 
otherwise filed, on or after April 30, 2004, will require the new fee.
    Comments were received from a broad spectrum of individuals and 
organizations, including 1 caucus of members of Congress, 16 refugee 
and immigrant service organizations, 15 public policy and advocacy 
groups, 8 educational institutions, 8 attorney organizations, 2 public 
corporations, 37 past and present adopting parents, 2 municipalities, 
and 189 other concerned individuals. Many commenters addressed multiple 
issues in their comments, and as a result, the number of comments 
discussed below in reference to specific issues exceeds the total 
number of comments received. All of the comments were carefully 
considered before preparing this final rule.
    In addition, on January 24, 2003 (at 68 FR 3798), and February 27, 
2003 (at 68 FR 8989), the former INS published interim rules first 
adjusting fees lower, and then readjusting them to the preexisting 
levels, based upon section 457 of the Homeland Security Act of 2002, 
Public Law 107-296, and the subsequent repeal of section 457 in section 
107 of the Homeland Security Act Amendments of 2003, Div. L. of Public 
Law 108-7. The former INS received five comments on the January 24 rule 
and one comment on the February 27 rule. Comments included urging the 
BCIS to seek appropriated funding to pay for asylum and refugee 
services instead of application fees, and contending that the high fees 
are putting the benefit of naturalization beyond the reach of many of 
our nation's immigrants. In creating the Immigration Examinations Fee 
Account, Congress intended that the activities supported by this 
account be self-sustaining, and not be funded by tax dollars (Pub. L. 
100-459), with the exception of appropriated funds dedicated 
specifically towards backlog reduction. The BCIS has been managing this 
account consistent with federal law and congressional direction. 
Additionally, the BCIS does have the ability to waive fees on a case-
by-case basis. Any applicant or petitioner who has an ``inability to 
pay'' the fees may request a fee waiver. This final rule adopts the fee 
structure proposed on February 3, 2004, but, in so doing, the BCIS has 
reviewed and considered the comments made in response to the January 
24, 2003, and February 27, 2003, interim rules.
    The following is a discussion of the comments received for the 
February 3, 2004, proposed rule and the BCIS' response.

II. Summary of Comments

A. Form I-600/600A, Petition to Classify an Orphan as an Immediate 
Relative/Application for Advance Processing of Orphan Petitions

    Forty-two comments were received expressing dissatisfaction with 
the fee increases associated with Forms I-600 and I-600A, Petition to 
Classify an Orphan as an Immediate Relative, and the Application for 
Advance Processing of Orphan Petition, respectively. The combined cost 
of the Form I-600 and Form I-600A ($525) necessarily reflects the fact 
that the Form I-600 and Form I-600A consist of two separate, highly 
labor-intensive adjudications.
    Adjudication of the Forms I-600 and I-600A ``orphan petitions'' has 
been, and continues to be, a priority as evidenced by the commitment 
established in the regulations at 8 CFR 204.3(a)(2). Specifically, 
orphan petitions are filed at district offices and adjudicated by 
experienced District Adjudication Officers. This is due to both the 
complexity of the international adoption process in general and the 
adjudication process required by statute and regulation. In addition, 
because of the importance the BCIS places on international adoptions, 
handling these cases in district offices by experienced officers allows 
for personalized customer service. District Adjudication Officers may 
be in constant contact with the petitioner throughout the process of a 
U.S. citizen's effort to adopt a child from abroad. The earliest 
contact may be a request for information and forms, followed by the 
filing of the Form I-600A and the home study. The adjudication of the 
Form I-600A petition requires knowledge of State law requirements 
regarding adoptions, including pre-adoption requirements such as 
counseling in certain States. Each petition must be accompanied by a 
home study, for which there are State requirements as well as Federal

[[Page 20529]]

requirements. Since there is no single national standard, it makes 
sense to assign these petitions to adjudication officers located in 
district offices that are better able to stay on top of ever-changing 
State requirements and establish effective local liaisons.
    The home study process is complex and often the adjudication 
officer must request that additional information be provided in the 
home study. When the child to be adopted is identified, further 
information and contact may ensue. To accommodate prospective adoptive 
parents, the BCIS allows petitioners to submit supporting evidence 
after initial filing of a Form I-600A. Thus, documentation is usually 
added to the petition as the adoption process progresses. It is not 
unusual for a case to be with the BCIS for several months, demanding an 
intense and protracted level of customer service. There may be frequent 
communications in person, telephonically, and in writing, between the 
BCIS, adoption agencies, social workers, and prospective adoptive 
parents.
    The home study review makes this petition particularly labor-
intensive. The adjudication officer is tasked with the careful review 
of the home study, perhaps 10-20 pages long, addressing a number of 
issues including any history of abuse or arrests. This information is 
carefully compared against Federal Bureau of Investigation (FBI) 
fingerprint checks. If necessary, the officer must request and review 
the arrest dispositions of petitioners with criminal records. When 
there are discrepancies, the home study must be revised or supplemented 
to include the new information and consider the impact it has on the 
placement.
    The Form I-600 petition establishes eligibility of a child as an 
orphan. Adjudication of these petitions requires the BCIS to determine 
if the child meets the regulatory definition of an orphan. Accordingly, 
the adjudication officer must develop and maintain a level of expertise 
in the laws and processes governing adoption in countries from which 
children are adopted. This assessment may require working with the 
Department of State or BCIS offices overseas to verify the validity of 
documents and interpret laws regarding international adoptions in 
countries other than the United States.
    Finally, the Form I-600 adjudication also includes a Form I-604 
investigation. The Form I-604, Request for and Report on Overseas 
Orphan Investigation, is used to document the investigations that must 
be completed in every orphan case before the Form I-600 can be 
approved. It includes: The child's birth name; date and place of birth; 
where the child lives; and if the child lives at an orphanage or with 
someone other than the biological parent(s), how and why that placement 
occurred; the child's physical and mental condition, and information 
about any known physical or mental illnesses (e.g., is the child a 
special needs child); if the child has siblings, and if so, if the 
child lives with the brothers or sisters; information concerning the 
child's biological parents and the determination that the child is an 
orphan because he or she has a ``sole parent'' or ``surviving parent'' 
(as defined in the regulations); and any other pertinent facts that the 
investigation uncovers. The purpose of the investigation is to verify 
that the child is an orphan, address specific concerns articulated by 
the adjudicating officer or consular officer that can only be resolved 
by an investigation, and resolve significant differences between the 
facts presented in the advanced processing application (Form I-600A) or 
advanced processing of the application (a Form I-600 approved by a BCIS 
office in the United States) and evidence available at later stages of 
processing. The investigation is conducted at the overseas visa-issuing 
post by the BCIS, or by the Department of State if there is no BCIS 
office at that U.S. Embassy or Consulate. A Form I-604 investigation 
may require a field investigation entailing travel to a remote location 
to establish whether or not a child is actually an orphan.
    Since the BCIS relies on fees to recover the full cost of 
processing immigration and naturalization benefits, the increase in 
fees for the Forms I-600 and I-600A to $525 is necessary to recover the 
full costs associated with processing orphan petitions, including 
security enhancements instituted post September 11, 2001. Accordingly, 
the BCIS will charge a fee of $525 for processing Forms I-600 and I-
600A.

B. How Will the BCIS Improve Service?

    One hundred and eighty-one comments were received opposing the 
increase in the fees given the current level of services provided by 
the BCIS. Many people noted the lengthy waiting times to process their 
benefit applications as well as the need to improve overall customer 
service.
    The BCIS has made progress in many areas of customer service such 
as eliminating the lines at a number of its offices (including New York 
and Miami), introducing on-line options for certain application filing 
and case status updates, and establishing a bilingual, toll-free 
customer help-line. Nonetheless, the BCIS is committed to taking 
further steps to fundamentally transform the administration of 
citizenship and immigration services. Over the coming year, the BCIS 
will prioritize customer service and improve application processing 
times, in addition to security. The agency has already begun 
implementing significant information technology and process 
improvements including electronic filing for certain immigration 
benefit applications. In FY 2002, the President launched a multi-year 
initiative to eliminate the application backlog and ensure a six-month 
processing time standard for all immigration benefit applications. The 
FY 2005 Budget provides an additional $60 million in appropriated funds 
to support this effort for a total of $160 million in funds available 
for the backlog efforts. The BCIS plans to achieve the President's goal 
by FY 2006.
    A number of commenters also suggested that the high fees are 
putting immigration benefits beyond the reach of many of our nation's 
immigrants. The BCIS does have the ability to waive fees on a case-by-
case basis. Any applicant or petitioner who has an ``inability to pay'' 
the fees may request a fee waiver. However, it should be noted that the 
biometric fee cannot be waived.
    A number of commenters also made specific service improvement 
ideas, including extending validity periods for Employment 
Authorizations and Advance Parole documents beyond the current one 
year, issuing fewer Requests for Evidence, and using SEVIS (Student and 
Exchange Visitor Information System) information more broadly for other 
adjudication purposes. The BCIS welcomes public input in this area and 
will consider it as it moves forward to improve customer service. To 
the extent processing improvements can be adopted in the future that 
further increase efficiency or reduce costs, they will be taken into 
account in any future fee adjustments.
    Lastly, a number of commenters mentioned the recent General 
Accounting Office (GAO) Report on Immigration Application Fees: Current 
Fees Are Not Sufficient to Fund U.S. Citizenship and Immigration 
Services' Operations. Comments noted that the BCIS does not have a 
system to track the status of each application as it moves through the 
process. While such a system undoubtedly would provide additional 
information on the cost to process pending applications, it is not 
necessary in order to identify the cost elements that have led to 
shortfalls in the IEFA, will continue to be incurred, and must be 
recovered for the BCIS to

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process applications. Those costs, as discussed in the proposed and 
this final rule, are the basis for these fee adjustments. Furthermore, 
the GAO also concluded that the existing fee schedule is not sufficient 
to fully fund the BCIS's operations, that the current fee schedule is 
based on a fee study that did not include all costs of the BCIS's 
operations, and that costs have increased due to additional processing 
requirements and other actions not covered by current fees.
    Several commenters noted the significant percentage increase in the 
application fees over the last several years. The vast majority of this 
increase is attributed to an exhaustive fee review completed in FY 
1997, employing an activity-based costing (ABC) methodology to more 
accurately capture the direct and indirect costs of providing 
immigration and naturalization services. The ABC methodology 
represented a significantly improved methodology over previous ones 
employed by the former INS. This methodology involved time and motion 
studies to capture the cycle times of individual form types, and 
allowed the former INS to identify the individual costs of activities 
involved in the processing of each application and petition. The 
methodology also allowed for the recovery of costs of services provided 
to other immigrants at no charge, including services to refugees and 
asylum applicants. This improved methodology was the basis for the 
significant fee increases in FY 1999. A General Accounting Office 
report in September 1998, entitled ``INS User Fee Revisions,'' reviewed 
this methodology and concluded that ``On the basis of our discussions 
with OMB staff and our review of INS' efforts to identify the costs 
associated with processing applications, we believe that INS complied, 
to the extent it was able, with available OMB guidance that requires 
agencies to recover the full costs of providing services.'' The fee 
adjustments in this rule are based on an incremental increase in 
application costs of this established methodology.

C. Fee Increases are Necessary

    Fifty-six comments were received in favor of the fee increases. In 
general, these can be divided into two groups: those who supported the 
proposed fee increases as long as they are accompanied with actual 
significant improvements in processing times and other customer 
service, and those whose support for increased fees was not coupled 
with any stated concern about BCIS customer service. A few commenters 
stated that the fee increases should be higher. Several others 
suggested expanding the premium processing fee to the Form I-485 or 
other BCIS applications, while still others supported sharp increases 
in EB-5 fees to support the regional center program. Although the 
reasons provided for supporting the fee increases, or for supporting 
higher fees, varied substantially from general concerns about 
immigration levels or the Federal deficit to more specific points about 
immigration benefit processing, several of the more frequently stated 
rationales included:
    (1) Current fees are too low in relation to the value of the 
benefit received (U.S. citizenship, for example);
    (2) Taxpayers should not pay for the increasing costs of providing 
immigration and naturalization benefits;
    (3) Fee increases are necessary to enhance security;
    (4) Fee increases are justified given the increasing demand for 
immigration and naturalization benefits over the last several years; 
and
    (5) Fee increases are necessary in order to increase the current 
level of services.
    The BCIS believes that the proposed fee increases will lead to and 
support improved services as previously stated, and disagrees with 
those commenters who stated that the increases are too small. The BCIS 
also notes that the $1,000 premium processing fee is a statutory 
authorization (section 286(u) of the Immigration and Nationality Act) 
specifically limited to employment-based applications and petitions, 
and does not seek in this final rule to expand the premium processing 
service.

D. Why Is BCIS Raising the Fees Instead of Seeking Additional Sources 
of Funding?

    Seventeen commenters urged BCIS to seek additional appropriated 
funds to cover the costs of military naturalizations, the Refugee 
Corps, and other immigration benefit services, especially those that 
the commenters perceived as not directly related to the actual 
adjudication of the specific application for which the fee was paid. In 
creating the Immigration Examinations Fee Account, Congress intended 
that the activities supported by this account be self-sustaining, and 
not be funded by tax dollars (Pub. L. 100-459), with the exception of 
appropriated funds dedicated specifically towards backlog reduction. 
The BCIS has been managing this account consistent with Federal law and 
congressional direction.
    Some of the individual cost elements are discussed more 
specifically below. With respect to all of the challenged elements, 
however, the costs are either: (1) Part of the full direct and indirect 
costs of providing the adjudication to the applicant under the 
principles of Office of Management and Budget (OMB) Circular A-25, 
which allocate costs to include, but not be limited to, an appropriate 
share of direct and indirect personnel costs, physical overhead, 
consulting, other indirect costs, and management and supervisory costs; 
or (2) are part of the full costs of providing services to immigrants 
other than the applicant, as authorized by section 286(m) of the Act; 
or both.
    In a variant on these comments, at least one commenter suggested 
that because security checks and some other aspects of immigration 
services funded by these fees provide a public rather than a purely 
personal benefit, the increases are unwarranted and beyond the scope of 
the authorizing statutes. Security checks are an integral part of 
determining the applicant's eligibility for a benefit and are 
appropriately an item that may be fully recovered through the 
applicable fee under the OMB Circular A-25 guidance. In addition, the 
fact that a process benefits the public interest as well as a private 
party does not mean that it cannot be funded by a user fee paid by the 
private party. Rather, when the service enables the beneficiary to 
obtain more immediate or substantial gains or values than those that 
accrue to the general public, a user fee is appropriate. The entire 
legal immigration and citizenship process--with respect both to grants 
of benefits and to denials for national security or other reasons--is 
one that benefits the public as well as private interests, but its 
focus on the adjudication of eligibility for individual benefits, as 
confirmed by section 286(m) of the Act and other broadly-based fee 
authorizing provisions, makes the fee-based structure entirely lawful 
and appropriate even when the public as a whole benefits as a result. 
As OMB Circular A-25 states at paragraph 6.a.3, ``when the public 
obtains benefits as a necessary consequence of an agency's provision of 
special benefits to an identifiable recipient (i.e., the public 
benefits are not independent of, but merely incidental to, the special 
benefits), an agency need not allocate any costs to the public and 
should seek to recover from the identifiable recipient either the full 
cost to the Federal Government of providing the special benefit or the 
market price, whichever applies.'' Furthermore, under the authority of 
section 286(m) of the Act, user fees may be used--and are used now--not 
only for the benefit of the user

[[Page 20531]]

who paid them and any collateral benefit resulting to the public, but 
also to benefit the interests of certain others, such as asylum 
applicants, who do not pay fees.
    Some of these commenters suggested, in effect, that fees should be 
funding of last recourse for immigration services; that is, that the 
BCIS should be required to have exhausted all possible means of seeking 
appropriated funds before imposing fee increases. The BCIS disagrees 
with this characterization. The Immigration and Nationality Act 
authorizes the recovery of the full costs of providing immigration and 
naturalization services, including services provided free of charge to 
many applicants, through application fees. It does not require the BCIS 
either to seek or to obtain other sources of funding for this purpose, 
although the President has requested, and Congress to date has 
provided, appropriations to supplement fee revenues in the area of 
backlog reduction.
    One commenter expressed surprise that the proposed rule had not 
cited 8 U.S.C. 1573 and other indicia of Congress's strong interest in 
backlog reduction and directive to the BCIS to achieve this goal. The 
proposed rule discussed those legal authorities most directly relevant 
to fee-setting authority. The BCIS agrees with the commenter that 
Congress desires it to reduce backlogs, and seeks in this rule to 
obtain a level of resources that will prevent existing backlogs 
actually from increasing.

E. Litigation Settlements

    Six commenters strongly objected to the inclusion of litigation 
costs as an element in the fee adjustment calculation. As one commenter 
correctly stated, ``The Equal Access to Justice Act (`EAJA') mandates 
that government agencies pay certain costs when they take a 
substantially unjustified position in litigation.'' What the commenter 
describes as ``certain costs'' are, more specifically, attorneys' fee 
awards, which must be paid from agency budgets rather than from the 
Judgment Fund. See 28 U.S.C. 2412(d).
    The commenters' assumption that these payments necessarily result 
from ``lost'' cases and EAJA awards by courts, though, is mistaken. 
Most attorneys'' fee payments arise from settlements in which the 
government admits neither legal liability under EAJA or any other 
statute, nor that its position was unjustified--and in fact maintains 
that its course of conduct was legally correct--but in which the 
posture of the case, risk management concerns, and the public interest 
support settling the case and putting the litigation to rest. These are 
cases in which settlement mutually benefits both parties, otherwise it 
would not happen. It is not accurate to state or imply that when the 
United States settles civil litigation with an agreement that includes 
payment of attorneys' fees it necessarily has ``lost'' the case or has 
by the fact of settlement and payment in any way conceded that its 
conduct was unlawful or its legal position unjustified.
    The comments also fail to recognize that most attorneys' fee 
payments are currently paid out of fee receipts. That is the way a fee-
funded agency, without appropriated funds designated for that purpose, 
is able to pay them. Accounting for these costs in fee-setting is not a 
new imposition on the fee-paying public. In other words, this fee 
increase only changes the form in which the fee-paying public bears the 
cost of attorneys' fee payments from reduced service on the back end to 
a very slightly higher fee payment up front.
    The BCIS seeks to minimize its litigation exposure by seeking to 
take responsible legal positions both with respect to setting policies 
in the first place and the merits of lawsuits against it. The BCIS 
would greatly prefer not to have to pay attorneys' fees from its budget 
as opposed to what it would view as more productive uses of resources, 
but it recognizes its potential obligations under the EAJA statute. It 
also recognizes that it cannot avoid a measure of litigation exposure 
as a cost of doing the public's business, and it would not be 
responsible to pretend that these costs do not exist or that they have 
no financial effect on the agency's fee-funded operations.
    Instead, the BCIS believes that the more appropriate and 
responsible course of action is to account for attorneys' fee awards, 
based on actual experience with these costs as an unavoidable element 
of providing immigration services. It does this so that the provision 
of adjudication services to fee-paying and other BCIS customers will 
not be negatively affected by them. To do so does not encourage taking 
unjustified positions in litigation.

F. Competitive Sourcing Study

    Six commenters objected to the inclusion of the cost of a 
competitive sourcing study. The BCIS needs to be open to new methods of 
providing immigration and naturalization services that may in time save 
the fee-paying public both time and money, and this openness from time 
to time requires up-front investment. Whether that is the case with 
outsourcing immigration information officers remains to be seen; that 
is the purpose of the study. Some of the comments appear to be based 
upon objection to outsourcing this or other functions. While the BCIS 
respects that view, it disagrees that it is an appropriate basis not to 
continue with or to fund the study to determine whether it is a 
substantially valid view in this instance.

G. Nicaraguan Adjustment and Central American Relief Act (NACARA) fees

    One commenter objected to increasing fees for NACARA-related 
applications, primarily on the ground that as an established program 
with known standards for adjudication, the cost of processing should be 
declining. In response, the BCIS notes that the fee adjustments relate 
to costs, including security enhancements conducted since July 2002, 
that affect NACARA applicants as much as any others. In addition, the 
premise of the comment that experience with a particular program 
necessarily results in reduced processing costs is incorrect. The basic 
nature of a NACARA adjudication--reviewing the evidence in the 
application and case file (which may be voluminous) in light of 
relevant legal standards and conducting security and other necessary 
record checks--is the same now as it was when the program began.

H. Refugee Corps

    Eleven commenters objected to funding refugee processing with fee 
revenues. Although the commenters supported free refugee services, in 
their view appropriated funds should be used pay for them. This subject 
has frequently been discussed in former INS rule making publications 
relating to fees. In repealing section 457 of the Homeland Security Act 
of 2002 in Public Law 108-7, and thereby restoring the authority of the 
BCIS to set fees at a level that will recover the costs of refugee and 
asylum processing, fee waivers, and other free services, Congress 
reaffirmed its expectation that such services be paid for through the 
fee account, after a brief period during which it had withdrawn that 
authority.

I. Inflation Adjustment

    Several commenters expressed concern about the provision for 
inflation adjustments through future notice in the Federal Register, 
including a contention that the phrase ``inflation rate enacted by 
Congress'' was not clear or specific. This provision will permit the 
BCIS to adjust on a timely basis for regular, fixed increases in costs 
based on Federal civilian pay increases and non-pay inflationary 
increases. The BCIS agrees

[[Page 20532]]

that the phrase should be clarified to more specifically refer to 
Federal civilian salary and benefits costs and non-pay costs and 
therefore has revised the regulation to reference the pay and non-pay 
inflation adjustments that the Office of Management and Budget (OMB) 
issues annually for agency use in implementing OMB Circular A-76, 
Performance of Commercial Activities. In other words, the regulation 
will enable BCIS to adjust its fees and charges on an annual basis 
using the inflationary adjustments that the Federal government already 
uses under Circular A-76 to reflect the impact of inflation on agency 
costs. If Congress enacts a Federal civilian pay inflation factor that 
is different than the factor issued by OMB for Circular A-76, BCIS may 
adjust for these costs during the current year or in a following year.

III. Fee Adjustments

    The fee adjustments, as adopted in this rule, are shown as follows:

                    New Application and Petition Fees
------------------------------------------------------------------------
    Form No.                     Description                     Fee
------------------------------------------------------------------------
I-90...........  Application to Replace Permanent Resident          $185
                  Card.
I-102..........  Application for Replacement/Initial                 155
                  Nonimmigrant Arrival/Departure Record.
I-129..........  Petition for a Nonimmigrant Worker........          185
I-129F.........  Petition for Alien Fiance(e)..............          165
I-130..........  Petition for Alien Relative...............          185
I-131..........  Application for Travel Document...........          165
I-140..........  Immigrant Petition for Alien Worker.......          190
I-191..........  Application for Permission to Return to an          250
                  Unrelinquished Domicile.
I-192..........  Application for Advance Permission to               250
                  Enter as a Nonimmigrant.
I-193..........  Application for Waiver of Passport and/or           250
                  Visa.
I-212..........  Application for Permission to Reapply for           250
                  Admission into the U.S. After Deportation
                  or Removal.
I-360..........  Petition for Amerasian, Widow(er), or               185
                  Special Immigrant.
I-485..........  Application to Register Permanent                   315
                  Residence or to Adjust Status.
I-526..........  Immigrant Petition by Alien Entrepreneur..          465
I-539..........  Application to Extend/Change Nonimmigrant           195
                  Status.
I-600/600A.....  Petition to Classify Orphan as an                   525
                  Immediate Relative/Application for
                  Advance Processing or Orphan Petition.
I-601..........  Application for Waiver of Grounds of                250
                  Excludability.
I-612..........  Application for Waiver of the Foreign               250
                  Residence Requirement.
I-687..........  For Filing Application for Status as a              240
                  Temporary Resident.
I-690..........  Application for Waiver of Excludability...           90
I-694..........  Notice of Appeal of Decision..............          105
I-695..........  Application for Replacement Employment               65
                  Authorization or Temporary Residence Card.
I-698..........  Application to Adjust Status from                   175
                  Temporary to Permanent Resident.
I-751..........  Petition to Remove the Conditions on                200
                  Residence.
I-765..........  Application for Employment Authorization..          175
I-817..........  Application for Family Unity Benefits.....          195
I-824..........  Application for Action on an Approved               195
                  Application or Petition.
I-829..........  Petition by Entrepreneur to Remove                  455
                  Conditions.
I-881..........  NACARA--Suspension of Deportation or                275
                  Application for Special Rule Cancellation
                  of Removal for adjudication by the
                  Department of Homeland Security.
I-881..........  NACARA--Suspension of Deportation or                155
                  Application for Special Rule Cancellation
                  of Removal for adjudication by the
                  Immigration Court.
I-914..........  Application for T Nonimmigrant Status.....          255
N-300..........  Application to File Declaration of                  115
                  Intention.
N-336..........  Request for Hearing on a Decision in                250
                  Naturalization Procedures.
N-400..........  Application for Naturalization............          320
N-470..........  Application to Preserve Residence for               150
                  Naturalization Purposes.
N-565..........  Application for Replacement Naturalization          210
                  Citizenship Document.
N-600..........  Application for Certification of                    240
                  Citizenship.
N-600K.........  Application for Citizenship and Issuance            240
                  of Certificate under Section 322.
                 For Capturing Biometric Information.......           70
------------------------------------------------------------------------

IV. Technical Improvements

    This final rule also makes several minor, nonsubstantive changes to 
8 CFR 103.7 that were not included in the proposed rule. In particular, 
these changes replace references to the former INS with reference to 
the Department of Homeland Security (DHS). In so doing, they conform 
the published text of the regulations with the changes already in fact 
made to them by the ``deeming'' provision (section 1512(d)) of the 
Homeland Security Act. The changes also remove references to Department 
of Justice forms and procedures now covered by 8 CFR part 1003. The 
reference to the discontinued Form I-290A, which was replaced in 1996 
by Forms EOIR-26 and EOIR-29, has also been removed.
    The Department of Justice intends to make similar updates and 
improvements to its regulations in 8 CFR parts 1003 and 1103. Until 
conforming changes are promulgated, the fee adjustments made by this 
final rule shall supersede any fee amounts stated in 8 CFR 1103.7(b) 
with respect to any fee paid to the Department of Homeland Security by 
any person, including any alien in proceedings before the Executive 
Office for Immigration Review, to the extent there are any 
inconsistencies between the fees as stated in the two regulations.

Good Cause Exception

    Although this rule falls under the category of major rule as that 
term is defined in 5 U.S.C. 804(2)(A), the DHS finds that under 5 
U.S.C. 808(2) and 5 U.S.C. 553(d)(3) good cause exists to make the rule 
take effect 15 days from the date of publication in the Federal 
Register, for the following reasons: the

[[Page 20533]]

BCIS must collect fee funds to provide immigration and naturalization 
benefits, but absent prompt change in the fee schedule, the BCIS will 
not have sufficient resources to process immigration benefit 
applications and adequately perform its mission. In particular, the 
security enhancements funded by the increased fees are important to the 
national security interests of the United States. To continue 
performing comprehensive security enhancements to fully meet homeland 
security needs, it is essential that the BCIS recover the costs of this 
workload as promptly as possible. In addition, implementing this rule 
at the earliest feasible date will assist the BCIS in enhancing its 
services and reducing processing times, which is to the benefit of BCIS 
customers and the public interest. In particular, the vast majority of 
customers who do not present a danger to the national security or 
public safety will benefit from the increased resources available in 
this fiscal year through more rapid implementation. Accordingly, the 
DHS finds that it would be contrary to the public interest for this 
rule to go into effect 60 days after its publication, and that there is 
good cause for the rule to go into effect 15 days from its publication. 
In order to assist the public and mitigate any potential harmful effect 
on customers as a result of this implementation schedule, the BCIS 
plans an aggressive outreach and informational campaign involving the 
internet and other media resources.

Regulatory Flexibility Act

    This rule has been reviewed in accordance with 5 U.S.C. 605(b), and 
the Department of Homeland Security certifies 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).
    BCIS acknowledges, however, 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. For 
the FY 2004/2005 biennial time period, BCIS projects that approximately 
190,000 Forms I-140, 435 Forms I-526, and 508 Forms I-829 will be 
filed. This volume represents petitions filed by a variety of 
businesses, ranging from large multinational corporations to small 
domestic businesses. However, even if all of the employers applying for 
benefits met the definition of small businesses, the resulting degree 
of economic impact would not require a Regulatory Flexibility Analysis 
to be performed. None of the public comments indicated that the rule 
would have a significant economic impact on small entities.

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 a major rule as defined by section 804 of the Small 
Business Regulatory Enforcement Act of 1996. This rule will result in 
an annual effect on the economy of more than $100 million, in order to 
generate the revenue necessary to fully fund the increased cost 
associated with the processing of immigration benefit applications and 
associated support benefits; the full cost of providing similar 
benefits to asylum and refugee applicants; and the full cost of similar 
benefits provided to other immigrants, as specified in the regulation, 
at no charge. The increased costs will be recovered through the fees 
charged for various immigration benefit applications.

Executive Order 12866

    This rule is considered by the Department of Homeland Security to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. The implementation of 
this final rule would provide BCIS with an additional $232 million in 
FY 2004 and $394 million in FY 2005 in annual fee revenue, based on a 
projected annual fee-paying volume of 6.8 million applications and 
petitions, over the fee revenue that would be collected under the 
current fee structure. This increase in revenue will be used pursuant 
to subsections 286(m) and (n) of the Immigration and Nationality Act 
(Act) to fund the full costs of processing immigration benefit 
applications and associated support benefits; the full cost of 
providing similar benefits to asylum and refugee applicants; and the 
full cost of similar benefits provided to other immigrants at no 
charge. Activities not directly comprising the processing of fee paid-
applications are discussed elsewhere in the preamble, such as the 
section of the summary of the comments entitled ``Refugee Corps'' and 
``Why is BCIS Raising the Fees Instead of Seeking Additional Sources of 
Funding?''. If the BCIS does not adjust the current fees to recover the 
full costs of processing immigration benefit applications, the backlog 
will likely increase. The revenue increase is based on BCIS' costs and 
projected volumes that were available at the time of the rule. 
Accordingly, this rule has been submitted to the Office of Management 
and Budget for clearance.

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 Homeland Security 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

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995), all Departments are required to submit to OMB, for 
review and approval, any reporting or recordkeeping requirements 
inherent in a rule. This rule does not impose any new reporting or 
recordkeeping requirements under the Paperwork Reduction Act.
    However, it should be noted that BCIS solicited public comments on 
the change of fees in the proposed rule which was published in the 
Federal Register on February 3, 2004. It should also be noted that the 
changes to the fees will require changes to the application/petition 
forms to reflect the new fees. OMB has approved changes to the 
appropriate forms, consistent with the provisions in this final rule.

List of Subjects in 8 CFR Part 103

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


[[Page 20534]]



0
Accordingly, the interim rules amending 8 CFR part 103 which were 
published at 68 FR 3798 on January 24, 2003, and 68 FR 8989 on February 
27, 2003, are adopted as a final rule without change. In addition, part 
103 of chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552(a); 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 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.


0
2. Section 103.7 is amended by:
0
a. Revising paragraph (a);
0
b. In paragraph (b), by removing the entry ``For fingerprinting by the 
Service'' and adding the entry ``For capturing biometric information'' 
in its place, and by revising the entries for the forms set forth 
below, except for Form N-600K;
0
c. Adding the entry for ``Form N-600K'' and revising the entry for 
``Motion'' the second time it appears in paragraph (b)(1);
0
d. Removing the entries ``Form EOIR-40'', ``Form EOIR-42'', ``Form I-
290A'', ``Form N-643'', and ``Motion'' the first time it appears in 
paragraph (b)(1);
0
e. Revising paragraph (b)(2);
0
f. Adding new paragraphs (b)(3) and (b)(4); and by
0
g. Revising paragraph (c).
    The revisions and additions read as follows:


Sec.  103.7  Fees.

    (a) Remittances.
    (1) Fees shall be submitted with any formal application or petition 
prescribed in this chapter in the amount prescribed by law or 
regulation. Except for fees remitted directly to the Board of 
Immigration Appeals pursuant to the provisions of 8 CFR 1003.8, or as 
the Attorney General otherwise may provide by regulation, any fee 
relating to any Department of Justice Executive Office for Immigration 
Review proceeding shall be paid to, and accepted by, any BCIS office 
authorized to accept fees. The immigration court does not collect fees. 
Payment of any fee under this section does not constitute filing of the 
document with the Board of Immigration Appeals or with the Immigration 
Court. The Department of Homeland Security shall return to the payer, 
at the time of payment, a receipt for any fee paid. The BCIS shall also 
return to the payer any documents, submitted with the fee, relating to 
any Immigration Court proceeding.
    (2) Remittances must be drawn on a bank or other institution 
located in the United States and be payable in United States currency. 
Fees in the form of postage stamps shall not be accepted. Remittances 
to the Department of Homeland Security shall be made payable to the 
``Department of Homeland Security'' except that in case of applicants 
residing in the Virgin Islands of the United States, the remittances 
shall be made payable to the ``Commissioner of Finance of the Virgin 
Islands'' and, in the case of applicants residing in Guam, the 
remittances shall be made payable to the ``Treasurer, Guam.'' If an 
application to the Department of Homeland Security is submitted from 
outside the United States, remittance may be made by bank international 
money order or foreign draft drawn on a financial institution in the 
United States and payable to the Department of Homeland Security. 
Remittances to the Board of Immigration Appeals shall be made payable 
to the ``United States Department of Justice,'' in accordance with 8 
CFR 1003.8. A charge of $30.00 will be imposed if a check in payment of 
a fee or any other matter is not honored by the bank or financial 
institution on which it is drawn. A receipt issued by a Department of 
Homeland Security officer for any remittance shall not be binding upon 
the Department of Homeland Security if the remittance is found 
uncollectible. Furthermore, legal and statutory deadlines will not be 
deemed to have been met if payment is not made within 10 business days 
after notification by the Department of Homeland Security of the 
dishonored check.
    (b) * * *
    (1) * * *
* * * * *
    For capturing biometric information. A service fee of $70 will 
be charged for any individual who is required to have biometric 
information captured in connection with an application or petition 
for certain immigration and naturalization benefits (other than 
asylum), and whose residence is in the United States.
* * * * *
    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--$185.
* * * * *
    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--$155.
    Form I-129. For filing a petition for a nonimmigrant worker--
$185.
* * * * *
    Form I-129F. For filing a petition to classify a nonimmigrant as 
a fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--
$165.
    Form I-130. For filing a petition to classify status of an alien 
relative for issuance of an immigrant visa under section 204(a) of 
the Act--$185.
    Form I-131. For filing an application for travel documents--
$165.
    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--$190.
    Form I-191. For filing an application for discretionary relief 
under section 212(c) of the Act--$250.
    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--$250.
    Form I-193. For filing an application for waiver of passport 
and/or visa--$250.
    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--$250.
* * * * *
    Form I-360. For filing a petition for an Amerasian, Widow(er), 
or Special Immigrant--$185, except there is no fee for a petition 
seeking classification as an Amerasian.
    Form I-485. For filing an application for permanent resident 
status or creation of a record of lawful permanent residence--$315 
for an applicant 14 years of age or older; $215 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--
$465.
    Form I-539. For filing an application to extend or change 
nonimmigrant status--$195.
* * * * *
    Form I-600. For filing a petition to classify an orphan as an 
immediate relative for issuance of an 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.)--$525.
    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.)--$525.
    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.)--$250.
    Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$250.
    Form I-687. For filing an application for status as a temporary 
resident under section

[[Page 20535]]

245A(a) of the Act. A fee of $240 for each application or $105 for 
each application for a minor child (under 18 years of age) is 
required at the time of filing with the Department of Homeland 
Security. The maximum amount payable by a family (husband, wife, and 
any minor children) shall be $585.
    Form I-690. For filing an application for waiver of a ground of 
inadmissibility under section 212(a) of the Act as amended, in 
conjunction with the application under sections 210 or 245A of the 
Act, or a petition under section 210A of the Act--$90.
    Form I-694. For appealing the denial of an application under 
sections 210 or 245A of the Act, or a petition under section 210A of 
the Act--$105.
    Form I-695. For filing an application for replacement of 
temporary resident card (Form I-688)--$65.
    Form I-698. For filing an application for adjustment from 
temporary resident status to that of lawful permanent resident under 
section 245A(b)(1) of the Act. For applicants filing within 31 
months from the date of adjustment to temporary resident status, a 
fee of $135 for each application is required at the time of filing 
with the Department of Homeland Security. The maximum amount payable 
by a family (husband, wife, and any minor children (under 18 years 
of age living at home)) shall be $405. For applicants filing after 
31 months from the date of approval of temporary resident status, 
who file their applications on or after July 9, 1991, a fee of $175 
(a maximum of $525 per family) is required. The adjustment date is 
the date of filing of the application for permanent residence or the 
applicant's eligibility date, whichever is later.
* * * * *
    Form I-751. For filing a petition to remove the conditions on 
residence, based on marriage--$200.
    Form I-765. For filing an application for employment 
authorization pursuant to 8 CFR 274a.13--$175.
* * * * *
    Form I-817. For filing an application for voluntary departure 
under the Family Unity Program--$195.
* * * * *
    Form I-824. For filing for action on an approved application or 
petition--$195.
    Form I-829. For filing a petition by entrepreneur to remove 
conditions--$455.
    Form I-881. For filing an application for suspension of 
deportation or special rule cancellation of removal (pursuant to 
section 203 of Public Law 105-100):

-- $275 for adjudication by the Department of Homeland Security, 
except that the maximum amount payable by family members (related as 
husband, wife, unmarried child under 21, unmarried son, or unmarried 
daughter) who submit applications at the same time shall be $550.
-- $155 for adjudication by the Immigration Court (a single fee of 
$155 will be charged whenever applications are filed by two or more 
aliens in the same proceedings). The $155 fee is not required if the 
Form I-881 is referred to the Immigration Court by the Department of 
Homeland Security.

* * * * *
    Form I-914. For filing an application to classify an alien as a 
nonimmigrant under section 101(a)(15)(T) of the Act (victims of a 
severe form of trafficking in persons and their immediate family 
members)--$255. For each immediate family member included on the 
same application, an additional fee of $105 per person, up to a 
maximum amount payable per application of $510.
    Form N-300. For filing an application for declaration of 
intention--$115.
    Form N-336. For filing a request for hearing on a decision in 
naturalization proceedings under section 336 of the Act--$250.
    Form N-400. For filing an application for naturalization--$320. 
(There is no fee charged for an application filed on or after 
October 1, 2004, by an applicant who meets the requirements of 
sections 328 or 329 of the Act with respect to military service.)
* * * * *
    Form N-470. For filing an application for benefits under section 
316(b) or 317 of the Act--$150.
    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--$210.
    Form N-600. For filing an application for a certificate of 
citizenship under section 309(c) or section 341 of the Act--$240, 
for applications filed on behalf of a biological child and $200 for 
applications filed on behalf of an adopted child.
    Form N-600K. For filing an application for citizenship and 
issuance of certificate under section 322 of the Act--$240, for an 
application filed on behalf of a biological child and $200 for an 
application filed on behalf of an adopted child.
* * * * *
    Motion. For filing a motion to reopen or reconsider any decision 
under the immigration laws in any type of proceeding over which the 
Executive Office for Immigration Review does not have jurisdiction. 
No fee shall be charged for a motion to reopen or reconsider a 
decision on an application for relief for which no fee is chargeable 
or for any motion to reopen or reconsider made concurrently with any 
initial application for relief under the immigration laws for which 
no fee is chargeable. (The fee of $110 shall be charged whenever an 
appeal or motion is filed by or on behalf of two or more aliens and 
all such aliens are covered by one decision. When a motion to reopen 
or reconsider is made concurrently with any application for relief 
under the immigration laws for which a fee is chargeable, the motion 
is filed and, if the motion is granted, the requisite fee for filing 
the application for relief will be charged and must be paid within 
the time specified in order to complete the application.)--$110.
* * * * *
    (2) Fees for production or disclosure of records under 5 U.S.C. 552 
shall be charged in accordance with the regulations of the Department 
of Homeland Security at 6 CFR 5.11.
    (3) The fees prescribed in paragraph (b)(1) of this section shall 
be adjusted annually on or after October 1, 2005, by publication of an 
inflation adjustment. The inflation adjustment will be announced by 
notice in the Federal Register, and the adjustment shall be a composite 
of the Federal civilian pay raise assumption and non-pay inflation 
factor for that fiscal year issued by the Office of Management and 
Budget for agency use in implementing OMB Circular A-76, weighted by 
pay and non-pay proportions of total funding for that fiscal year. If 
Congress enacts a different Federal civilian pay raise percentage than 
the percentage issued by OMB for Circular A-76, the Department of 
Homeland Security may adjust the fees, during the current year or a 
following year to reflect the enacted level. The prescribed fee or 
charge shall be the amount prescribed in paragraph (b)(1) of this 
section, plus the latest inflation adjustment, rounded to the nearest 
$5 increment.
    (4) For the schedule of fees relating to proceedings before the 
immigration judges and the Board of Immigration Appeals, see 8 CFR 
1103.7.
    (c) Waiver of fees. (1) Except as otherwise provided in this 
paragraph (c), any of the fees prescribed in paragraph (b) of this 
section relating to applications, petitions, appeals, motions, or 
requests may be waived by the Department of Homeland Security in any 
case under its jurisdiction in which the alien or other party affected 
is able to substantiate that he or she is unable to pay the prescribed 
fee. The person seeking a fee waiver must file his or her affidavit, or 
unsworn declaration made pursuant to 28 U.S.C. 1746, asking for 
permission to prosecute without payment of fee of the application, 
petition, appeal, motion, or request, and stating his or her belief 
that he or she is entitled to or deserving of the benefit requested and 
the reasons for his or her inability to pay. The officer of the 
Department of Homeland Security having jurisdiction to render a 
decision on the application, petition, appeal, motion, or request may, 
in his or her discretion, grant the waiver of fee. Fees for ``Passenger 
Travel Reports via Sea and Air'' and for special statistical 
tabulations may not be waived. The payment of the additional sum 
prescribed by section 245(i) of the Act

[[Page 20536]]

when applying for adjustment of status under section 245 of the Act may 
not be waived. The fee for Form I-907, Request for Premium Processing 
Services, may not be waived. For provisions relating to the authority 
of the immigration judges or the Board to waive fees prescribed in 
paragraph (b) of this section in cases under their jurisdiction, see 8 
CFR 1003.24 and 1003.8.
    (2) Fees under the Freedom of Information Act, as amended, may be 
waived or reduced where the Department of Homeland Security determines 
such action would be in the public interest because furnishing the 
information can be considered as primarily benefiting the general 
public.
    (3) When the prescribed fee is for services to be performed by the 
clerk of court under section 344(a) of the Act, the affidavit for 
waiver of the fee shall be filed with the district director or officer 
in charge of the BCIS having administrative jurisdiction over the place 
in which the court is located at least 7 days prior to the date the fee 
is required to be paid. If the waiver is granted, there shall be 
delivered to the clerk of court by a BCIS representative on or before 
the date the fee is required to be paid, a notice prepared on BCIS 
letterhead and signed by the officer granting the waiver, that the fee 
has been waived pursuant to this paragraph.
    (4) Fees for applications for Temporary Protected Status may be 
waived pursuant to 8 CFR 244.20.
* * * * *

    Dated: April 13, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-8699 Filed 4-13-04; 3:38 pm]
BILLING CODE 4410-10-P