[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14441] [[Page Unknown]] [Federal Register: June 14, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Immigration and Naturalization Service 8 CFR Part 103 [INS No. 1384-92; AG ORDER NO. 1893-94] RIN 1115-AD18 Adjustment to the Examinations Fee Schedule AGENCY: Immigration and Naturalization Service, Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This rule adjusts the Immigration and Naturalization Service (INS) Examinations Fee schedule. The increases are necessary to generate sufficient revenue to recover the costs of providing adjudication and naturalization services. This rule ensures that funds will be available to continue providing services to users while keeping increases as small as possible. EFFECTIVE DATE: July 14, 1994. FOR FURTHER INFORMATION CONTACT: Donald L. Lowry, Staff Accountant, Fee Analysis and Operations Branch, Office of Finance; Immigration and Naturalization Service; 425 I Street, NW.; room 6240; Washington, DC 20536-0002; telephone 202-616- 2754. SUPPLEMENTARY INFORMATION: I. Introduction The INS published a proposed rule on January 10, 1994, at 59 FR 1308, to adjust the current Examinations Fee schedule. The proposed rule was initially published with a 30-day comment period. To ensure that the public had ample opportunity to review and comment on the proposed rule, the comment due date was extended from February 9, 1994 to March 11, 1994 (59 FR 5740, Feb. 8, 1994). The fee adjustment is needed to comply with specific Federal immigration laws and the Federal user fee statute and regulations, which require the recipients of special benefits from Government services that are not directed to the public at large to bear the costs to the Government of providing those services. The fees amended in this rule result from an analysis of adjudication and naturalization services and associated costs for fiscal year 1993 and projected costs for fiscal year 1994. The revised fees are calculated to recover the costs of providing these special services and benefits. Comments were received from 77 commenters, including 46 performing arts organizations, 15 agricultural organizations, 7 employers, 3 attorney organizations, 3 individual attorneys, 2 voluntary service organizations, and 1 member of Congress. The Department carefully considered all comments before preparing this final rule. Following is a discussion of the comments. II. Summary of Comments A. Petition for a Nonimmigrant Worker (Form I-129) Sixty-six commenters, largely performing arts organizations and agricultural organizations, expressed dissatisfaction with the proposed fee schedule for the Petition for a Nonimmigrant Worker (Form I-129). The commenters opposed increasing the minimum fee from $80 ($70 base fee plus $10 fee per beneficiary) to $120 and the per worker fee from $10 to $20. Fifteen of these same commenters questioned the justification for assessing a per-worker fee for petitions with multiple unnamed beneficiaries. In response to the public's comments, INS is making the following changes: Petitioners with multiple unnamed beneficiaries will no longer be assessed any per worker fee, and the base fee will increase from $70 to $75. The $5 increase is consistent with the general 7.5 percent increase to the current fee schedule, which was discussed in the notice of proposed rule. On January 11, 1994, INS promulgated a final rule, 59 FR 1455, which allows a worker's dependents to be included in a petitioner's request for an extension of stay or change of status, where there is only one worker in the petition. That provision will go into effect at the time the form providing for this process becomes available. This rule sets a fee of $10 for each dependent included on an extension of stay or change of status request. Dependents of beneficiaries covered by multiple worker petitions must continue to file requests for an extension of stay or change of status on an Application to Extend/ Change Nonimmigrant Status (Form I-539). Accordingly, the new fee structure for the Petition for a Nonimmigrant Worker will be as follows: Petition With Unnamed Beneficiaries --Fee of $75 per petition. Petition With Named Beneficiaries --Base fee of $75 per petition plus either: --$10 per worker if requesting consulate or port-of-entry notification for visa issuance or admission; --$80 per worker if requesting a change of status; or --$50 per worker if requesting an extension of stay. If filing an extension of stay or change of status for one worker, dependents may be included for a fee of $10 per dependent. Two additional comments related to I-129 processing were received. One commenter stated that the current procedure includes Consulate or port-of-entry notification for visa issuance or admission purposes and the proposed procedure does not discuss this notification. The commenter questioned whether notification would continue. This rule amends only the Examination Fee schedule and does not change existing procedures; as noted above, this notification will continue. One commenter also questioned the procedural change related to the $10 fee for each dependent of a beneficiary worker. The commenter stated that the beneficiary worker may be transferred to the United States several months in advance of that person's family members and questioned whether this delay between the two dates would present a problem for Consulate or port-of-entry processing. Again, this rule only sets the fee for dependents included on an extension of stay or change of status request. The final rule promulgated at 59 FR 1455 provides for dependents to be included on a request for an extension of stay or change of status. An original petition is granted solely on behalf of the worker; the consular officer issues visas to dependents separately. Accordingly, the commenter's concerns are unfounded. B. Application for Employment Authorization (Form I-765) One commenter objected to the $10 increase for the employment authorization document (EAD). The commenter stated that EADs for asylum applicants are valid for only 6 months and that it is unfair and unreasonable to require an asylum applicant and dependent family members to pay a $70 fee every 6 months. The commenter suggests that if EAD cards were renewed for a significant period of time, such an increase would not be an unfair burden on the applicant. The increase in the EAD fee is necessary to recover the costs of adjudicating the application. Under 8 CFR 208.7, an interim EAD for an asylum applicant may be granted for a period not to exceed 1 year. Although INS has the discretion to grant an EAD for a period of 6 months, most asylum EADs are valid for 1 year. Consequently, the situation described by the commenter should not arise frequently. C. Application to Register Permanent Residence or Adjust Status (Form I-485) One commenter objected to the $10 increase in fees for filing the I-485 and suggested a family ceiling on the fees charged. The commenter stated that the other costs associated with filing an I-485, such as the required physical examination, make the total costs prohibitive for a family. The INS recognizes the commenter's concerns. However, it is not possible for INS to set a family ceiling and recover the costs of adjudicating applications through user fees, as required under section 286(m) of the Immigration and Nationality Act (INA). However, the fees for applicants under the age of 14 are $100, an increase of only $5. It should also be noted that fee waivers are available on a case-by-case basis, under 8 CFR Sec. 103.7(c). D. Application for Naturalization (N-400) and Application for Certificate of Citizenship (N-600) One commenter criticized INS for increasing naturalization fees. The commenter opposed the increases stating that the income of many immigrant families is relatively low, that increased rates of naturalization are in our national interest, and that concerns about INS financial management and service delivery have yet to be resolved. The INS recognizes the commenter's concern. However, as stated above, under section 286(m) of the INA, INS is required to recover the costs of adjudicating naturalization applications through user fees. Alternative revenue sources are not available. Increased naturalization fees are necessary to avoid applicants for other benefits paying higher fees to absorb the costs not recovered through the naturalization fees. In order to recover the costs, the naturalization fees must be increased. E. Meaningful Opportunity To Comment on the Proposed Rule One commenter stated that the public has been denied a meaningful opportunity to comment on the proposed rule because the proposed rule did not provide sufficient information to do so. The INS believes that sufficient information was provided in the proposed rule. Under the proposed rule, supporting documentation was available upon request and was provided to commenters who requested it. In addition, the comment period was extended an additional 30 days so that the public would have ample opportunity to fully review and comment on the proposed rule. F. Indirect Costs Charged to the Examinations Fee Account One commenter stated that certain functions in the legal proceedings program, such as adversary appearances, are not appropriately charged to the Examinations Fee Account. In 1992, INS performed a comprehensive review of the work that should be properly charged to the INS user fee accounts, and concluded that these legal costs are an appropriate and necessary expense of the adjudication and naturalization service process. The same commenter stated that the proposed rule did not explain what management and administration (M&A) positions and functions are included in indirect costs, so that the commenter could not determine if they were appropriate. The proposed rule used the term management and administrative (M&A) in a descriptive sense. As commonly used, M&A refers to the costs of providing accounting, budget, personnel, equal employment opportunity, contracting and procurement, and general administration services. The proposed rule used the example of the costs of mail processing in discussing how the distribution-key concept works in allocating indirect costs among various accounts. From the example and from the general understanding of the term ``M&A,'' INS believes that sufficient information was given to allow a fair opportunity to comment on the appropriateness of charging M&A as indirect costs to the Examinations Fee Account. G. Proportional Assignment of Indirect Costs to Each Examinations Fee One commenter stated that INS did not explain why indirect costs are assigned in an ``across-the-board'' manner, rather than apportioning the indirect costs in the same ratio as the direct cost of the application. Various methods for allocating indirect costs exist; INS considers the current method to be reasonable. As INS continues to refine its fee structure, alternative allocation methodologies will be evaluated. H. Plan to Improve Service One commenter stated that the proposed rule did not discuss plans to improve service, such as expansion of INS service centers, elimination of backlogs, and acceleration of processing times. Improvement efforts have been focused on processing more applications at the service centers and reducing the adjudicative work at the district offices. The expansion of centralized processing at the service centers is expected to result in expedited processing of routine cases. The district offices will retain adjudicative responsibilities for applications necessitating an interview or complex or unique adjudications where personal contact is necessary. The INS expects that staff will be shifted among district offices and service centers based on workload requirements. Implementation of an automated system at district offices and continued improvement of that system for service center operations is also expected to improve productivity. This automated system, called CLAIMS, integrates many of the manual processes or discrete automated processes that adjudicators use now. The CLAIMS system is currently operational in the four INS service centers; in FY 1994, it will be installed at one district office. Plans for expansion to other sites and continued system enhancements are under constant review and dependent upon funding availability. I. Fee Basis One commenter stated that the proposed fees appear to be based on faulty or incomplete data and do not appear to be rationally related to the real work required to process any given application. As discussed in the proposed rule, INS examined the relevant costs of the Examinations Fee Account and computed the percentage revenue increase required to cover the costs, and that percentage, with limited exceptions, was applied to the existing fee schedule. The INS also considered the feasibility of basing the proposed fees on 1992 costs measurements. The INS rejected this approach because of problems with 1992 data caused by the transition to a more automated system of productivity measurement. At this time, the current fee schedule, with specifically identified adjustments, reflects the best available data on costs, which is consistent with Office of Management and Budget and Department of Justice guidance. Future fee adjustments will reflect efforts to refine direct and indirect cost definitions and measurements. The same commenter stated that the inclusion of inspection costs was not explained in the proposed rule. The costs of the Inspections program attributed to the Examinations Fee Account are exclusively related to examinations work performed by land border inspectors during periods in which they are not performing inspections. This allocation of adjudication workload to inspectors permits more efficient use of resources and results in reduced costs. III. Fee Adjustments The fee adjustments, as adopted in this rule, are shown in Exhibit 1. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule adjusts the current Examinations Fee schedule. Its financial impact on users of the services is small. In most cases, the fee increase is $5. Executive Order 12866 This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, because approximately 4 million people per annum will be assessed a user fee to recover the costs of providing adjudication and naturalization services. Executive Order 12612 The regulation 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12606 The Attorney General certifies that she has assessed this rule in light of the criteria in Executive Order 12606 and has determined that it will not have a significant negative impact on family well-being. The information collection requirements contained in this rule have been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display of Control Numbers. List of Subjects in 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Fees, Forms, Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds. Accordingly, part 103 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, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 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, paragraph (b)(1) is amended by revising the entries listed to read as follows: Sec. 103.7 Fees. * * * * * (b) * * * (1) * * * Form I-17. For filing an application for school approval, except in the case of a school or school system owned or operated as a public educational institution or system by the United States or a state or political subdivision thereof--$140. Form I-90. For filing an application for Alien Registration Receipt Card (Form I-551) in lieu of an obsolete card or in lieu of one lost, mutilated or destroyed, or in a changed name--$75. Form I-102. For filing 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--$65. Form I-129. For filing a petition for a nonimmigrant worker--If a petition with unnamed beneficiaries, a fee of $75 per petition. If a petition with named beneficiaries, a base fee of $75 plus: --$10 per worker if requesting consulate or port-of-entry notification for visa issuance or admission; --$80 per worker if requesting a change of status; or --$50 per worker if requesting an extension of stay. If filing an extension of stay or change of status for one worker, dependents may be included for a fee of $10 per dependent. * * * * * 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--$80. Form I-131. For filing an application for issuance of reentry permit--$70. Form I-140. For filing a petition to classify preference status of an alien on basis of profession or occupation under section 204(a) of the Act--$75. * * * * * 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--$90. Form I-193. For filing an application for waiver of passport and/or visa--$95. Form I-212. For filing an application for permission to reapply for an excluded or deported alien, an alien who has fallen into distress and has been removed as an alien enemy, or an alien who has been removed at Government expense in lieu of deportation--$95. * * * * * Form I-360. For filing a petition for an Amerasian, Widow(er), or Special Immigrant--$80, except there is no fee for a petition seeking classification as an Amerasian. Form I-485. For filing an application for permanent residence status or creation of a record of lawful permanent residence--$130 for an applicant 14 years of age or older; $100 for an applicant under the age of 14 years. * * * * * Form I-526. For filing a petition for an alien enterpreneur--$155. * * * * * Form I-539. For filing an application to extend or change nonimmigrant status--$75 plus $10 per coapplicant. * * * * * 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.)--$155. 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.--$155. Form I-601. For filing an application for waiver of ground of excludability 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 sub-sections.)--$95. Form I-612. For filing an application for waiver of the foreign- residence requirement under section 212(e) of the Act--$95. * * * * * Form I-751. For filing a petition to remove the conditions on residence which is based on marriage--$80. * * * * * Form I-765. For filing an application for employment authorization pursuant to 8 CFR 274a.13--$70. * * * * * Form I-817. For filing an application for voluntary departure under the Family Unity Program--$80. The maximum amount payable by the members of a family filing their applications concurrently shall be $225. * * * * * Form N-300. For filing an application for declaration of intention--$75. * * * * * Form N-400. For filing an application for naturalization--$95. For filing an application for naturalization under section 405 of the Immigration Act of 1990, if the applicant will be interviewed in the Philippines--$120. * * * * * Form N-470. For filing an application for section 316(b) or 317 of the Act benefits--$115. 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(b) or (d) 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(c) of the Act--$65. Form N-600. For filing an application for certificate of citizenship under section 309(c) or section 341 of the Act--$100. Form N-643. For filing an application for a certificate of citizenship on behalf of an adopted child--$80. Form N-644. For filing an application for posthumous citizenship-- $80. * * * * * Dated: June 8, 1994. Janet Reno, Attorney General. Exhibit 1 Note: The following exhibit will not appear in the Code of Federal Regulations. Examinations Fee Account [Revised Fees] ---------------------------------------------------------------------------------------------------------------- Form No. Form name/description Fee ---------------------------------------------------------------------------------------------------------------- I-17............ Petition for Approval of School for Attendance by Nonimmigrant Students. $140 I-90............ Application to Replace Alien Registration Card.......................... 75 I-102........... Application for Replacement/Initial Nonimmigrant Arrival Departure 65 Document. I-129........... Petition for a Nonimmigrant Worker...................................... See below.\1\ I-129F.......... Petition for Alien Finance(e)........................................... 75 I-130........... Petition for Alien Relative............................................. 80 I-131........... Application for Travel Document......................................... 70 I-140........... Immigrant Petition for Alien Worker..................................... 75 I-191........... Application for Advance Permission to Return to Unrelinquished Domicile. 90 I-192........... Application for Advance Permission to Enter as Nonimmigrant............. 90 I-193........... Application for Waiver of Passport and/or Visa.......................... 95 I-212........... Application for Permission to Reapply for Admission into the U.S. After 95 Deportation or Removal. I-360........... Petition for Amerasian, Widow(er), or Special Immigrant (except for a 80 petition seeking classification as an Amerasian in which case the fee is waived). I-485........... Application to Register Permanent Residence or Adjust Status: If 14 years of age or older............................................. 130 If under 14 years of age................................................ 100 I-526........... Immigrant Petition by Alien Entrepreneur................................ 155 I-539........... Application to Extend/Change Nonimmigrant Status........................ 75 plus 10 per coapplicant. I-600........... Petition to Classify Orphan as an Immediate Relative.................... 155 I-600A.......... Application for Advance Processing of Orphan Petition................... 155 I-601........... Application for Waiver of Grounds of Excludability...................... 95 I-612........... Application for Waiver of the Foreign Residence Requirement............. 95 I-751........... Petition to Remove the Condition on Residence........................... 80 I-765........... Application for Employment Authorization................................ 70 I-817........... Application for Voluntary Departure Under Family Unity Program.......... 80 N-300........... Application to File Declaration of Intention............................ 75 N-400........... Application for Naturalization.......................................... 95 N-470........... Application to Preserve Residence for Naturalization Purposes........... 115 N-565........... Application for Replacement Naturalization/Citizenship Document......... 65 N-600........... Application for Certificate of Citizenship.............................. 100 N-643........... Application for Certificate of Citizenship in Behalf of an Adopted Child 80 N-644........... Application for Posthumous Citizenship.................................. 80 ---------------------------------------------------------------------------------------------------------------- \1\Petition with Unnamed Beneficiaries: --Fee of $75 per petition. Petition with Named Beneficiaries: --Base fee of $75 per petition plus either: --$10 per worker if requesting consulate or port-of-entry notification for visa issuance or admission; --$80 per worker if requesting a change of status; or --$50 per worker if requesting an extension of stay. If filing an extension of stay or change of status for one worker, dependents may be included for a fee of $10 per dependent. [FR Doc. 94-14441 Filed 6-13-94; 8:45 am] BILLING CODE 4410-01-M