[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Proposed Rules]
[Pages 67243-67246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26521]
[[Page 67243]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 106, 204, 211, 212, 214, 216, 223, 235, 236, 240,
244, 245, 245a, 248, 264, 274a, 301, 319, 320, 322, 324, 334, 341,
343a, 343b, and 392
[CIS No. 2627-18; DHS Docket No. USCIS-2019-0010]
RIN 1615-AC18
U.S. Citizenship and Immigration Services Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule; extension of comment period; availability of
supplemental information.
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SUMMARY: The Department of Homeland Security (DHS) is extending the
comment period for its November 14, 2019, notice of proposed rulemaking
(NPRM or ``proposed rule'') regarding the USCIS Fee Schedule and
Changes to Certain Other Immigration Benefit Request Requirements. DHS
is also announcing the availability of supplemental information to
inform the public of information related to the NPRM. This supplement
describes the projected costs associated with supporting immigration
adjudication and naturalization services for which USCIS will reimburse
U.S. Immigration and Customs Enforcement. This document also clarifies
the comment period on the proposed information collection revisions in
the NPRM. This announcement ensures that the public has an opportunity
to comment on the supplemental materials.
DATES: The comment period for the NPRM published November 14, 2019, at
84 FR 62280, is extended to December 30, 2019.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2019-0010, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow this site's instructions for submitting comments.
Mail: Samantha Deshommes, Chief, Regulatory Coordination
Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper
handling, please reference DHS Docket No. USCIS-2019-0010 in your
correspondence. Mail must be postmarked by the comment submission
deadline. Please note that USCIS cannot accept any comments that are
hand delivered or couriered. In addition, USCIS cannot accept mailed
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives.
FOR FURTHER INFORMATION CONTACT: Kika M. Scott, Chief Financial
Officer, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-
2130, telephone (202) 272-8377.
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites you to participate in this rulemaking by submitting
written data, views, or arguments on all aspects of the proposed rule.
Comments providing the most assistance to DHS will reference a specific
portion of the proposed rule, explain the reason for any recommended
change, and include data, information, or authority that supports the
recommended change.
Instructions: All submissions should include the agency name and
DHS Docket No. USCIS-2019-0010 for this rulemaking. Providing comments
is entirely voluntary. Regardless of how you submit your comment, DHS
will post all submissions, without change, to the Federal eRulemaking
Portal at http://www.regulations.gov and will include any personal
information you provide. Because the information you submit will be
publicly available, you should consider limiting the amount of personal
information in your submission. DHS may withhold information provided
in comments from public viewing if it determines that such information
is offensive or may affect the privacy of an individual. For additional
information, please read the Privacy Act notice available through the
link in the footer of http://www.regulations.gov.
Docket: For access to the docket, go to http://www.regulations.gov
and enter this rulemaking's eDocket number: USCIS-2019-0010. The docket
includes additional documents that support the analysis contained in
the proposed rule to determine the specific fees that are proposed.
These documents include:
Fiscal Year (FY) 2019/2020 Immigration Examinations Fee
Account Fee Review Supporting Documentation;
Regulatory Impact Analysis: U.S. Citizenship and
Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements; and
Small Entity Analysis for Adjustment of the U.S.
Citizenship and Immigration Services Fee Schedule notice of proposed
rulemaking (NPRM).
You may review these documents on the electronic docket. The
software \1\ used to compute the immigration benefit request fees \2\
and biometric fees \3\ is a commercial product licensed to USCIS that
may be accessed on-site, by appointment, by calling (202) 272-1969.\4\
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\1\ USCIS uses commercially available activity-based costing
(ABC) software, SAP Business Objects Profitability and Cost
Management, to create financial models as described in the
supporting documentation.
\2\ Benefit request means any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit, whether such request is filed on a paper
form or submitted in an electronic format, provided such request is
submitted in a manner prescribed by DHS for such purpose. See 8 CFR
1.2.
\3\ DHS uses the terms biometric fees, biometric services fees,
and biometric fee synonymously in this rule to describe the cost and
process for capturing, storing, or using biometrics.
\4\ The proposed rule describes key inputs to the ABC model (for
example, budget, workload forecasts, staffing, and completion
rates).
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II. Extension of Comment Period
On November 14, 2019, DHS published the aforementioned proposed
rule. See 84 FR 62280. DHS has received requests to extend the comment
period for this rulemaking. In consideration of these requests, and to
provide additional time for the public to review the supplemental
information below, the comment deadline is extended from December 16,
2019 through December 30, 2019.
DHS also notes and clarifies the comment period for the information
collection requests (forms) that the proposed rule would revise in
accordance with the Paperwork Reduction Act. The comment period for the
NPRM will end on December 30, 2019, including comments on the forms DHS
must submit to OMB for review and approval under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501-12. The NPRM contained erroneous
references to comments being accepted for 60 days from the publication
date of the proposed rule. See 84 FR 62349, 62350, 62351, 62352, 62353,
62354, 62355, 62356.
III. Supplemental Information Regarding ICE Activities To Be Funded by
the IEFA
a. Background
In the proposed rule, DHS proposed to recover, via USCIS' fee
schedule, the full amount of the proposed transfer from USCIS to ICE
that was contained in past budget requests. See 84 FR 62287. The IEFA
may be used to reimburse appropriations that fund enforcement and
support positions of U.S. Immigration and Customs
[[Page 67244]]
Enforcement (ICE) to the extent that such positions support
adjudication and naturalization services.
DHS proposed to recover as much as $207.6 million in ICE expenses
via USCIS' fee schedule, and described some categories of eligible
costs. See id. DHS wrote that it ``continues to study which ICE costs
would be reimbursable through the IEFA, and may announce more precise
cost estimates prior to publication of a final rule. To the extent that
such cost estimates are lower than the $207.6 million figure currently
accounted for in the rule, fee levels would be revised downward.'' See
id. at 62288. This document announces such cost estimates, which are
lower than the $207.6 million figure in the proposed rule. DHS
therefore anticipates a downward adjustment in the proposed fees. See
id.
Specifically, following further study, DHS now proposes to recover,
via USCIS' fee schedule, $112,287,417 for allowable costs, instead of
the $207.6 million referenced in the proposed rule. DHS proposes to
establish USCIS fees at a level necessary to recover the full amount of
this proposed transfer in addition to the costs of operating USCIS.
This document explains how those ICE costs were determined.
b. Methodology
DHS estimated the ICE projected costs to be funded through the IEFA
using Activity-Based Costing (ABC) consistent with OMB Circular A-25,
the Statement of Federal Financial Accounting Standards (SFFAS-4):
Managerial Cost Accounting Concepts and Standards for the Federal
Government, and other relevant financial management directives as
described in the November 14, 2019 proposed rule. 84 FR 62280, 62283.
ICE used an ABC approach to define full cost, outline the sources of
cost for providing the investigation of immigration adjudication and
naturalization services and the collection, safeguarding, and
accounting for fees deposited in and funds reimbursed from the IEFA.
These costs do not include costs associated with the Student and
Exchange Visitor Program (SEVP). ICE conducts a separate ABC analysis
to set SEVP fees.
A critical element in building the ABC model was for ICE to
identify the sources and cost for all expenses in providing immigration
adjudication and naturalization services. Consistent with the
applicable law and guidance as stated in the November 14, 2019 proposed
rule, the proposed transfer from USCIS to ICE would recover the full
cost of providing immigration adjudication and naturalization services.
After identifying which case activities can be covered by IEFA funds,
the total investigative hours were estimated for the case activities.
ICE used the full cost of providing immigration adjudication and
naturalization services to calculate the amount needed to be
transferred from the USCIS-managed IEFA to ICE to fully recover all
costs for ICE administered immigration adjudication and naturalization
services.\5\
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\5\ Additional HSI agents and requisite support staff would need
to be hired in order to complete the additional work contemplated.
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c. Fees To Support Operations
ICE Homeland Security Investigations (HSI) would use funds
transferred from the IEFA to support investigations of immigration
benefit fraud via Document and Benefit Fraud Task Forces (DBFTFs),
Operation Janus, the HSI National Lead Development Center, and other
immigration adjudication and naturalization activities. Under INA
section 286(m) and (n), 8 U.S.C. 1356(m) and (n), adjudication and
naturalization services include all costs for work related to
determining whether applicants may receive the benefit of such
services. The cost of the services provided includes the cost of any
investigatory work necessary to adjudicate applications or provide
services, including investigations of fraud. Moving forward, USCIS will
reimburse ICE for costs associated with supporting immigration
adjudication and naturalization services. Table 1 provides a detailed
list of case activities that can be paid for with IEFA funds as they
directly relate to the investigation of the immigration adjudication
and naturalization process.
Table 1--Identity and Benefit Fraud Activities
[As of November 2019]
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Activity Detailed description
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General Investigative Covers investigation of benefit fraud of
Activities. adjudication and naturalization
services.
Employment Fraud............. Covers employment benefit fraud in the
context of adjudication and
naturalization services.
Family Fraud................. Covers family-based benefit fraud in the
context of adjudication and
naturalization services.
Non-Employment Visa Fraud.... Closely tied to benefit fraud of
adjudication and naturalization
services.
Marriage Fraud............... Covers marriage-based benefit fraud in
the context of adjudication and
naturalization services.
Refugee Fraud................ Covers refugee-based benefit fraud in the
context of adjudication and
naturalization services.
Asylum Fraud................. Covers asylum-based benefit fraud in the
context of adjudication and
naturalization services.
Citizenship/Naturalization Covers benefit fraud of adjudication and
Fraud. naturalization services.
Deferred Action for Childhood Covers activities related to specific
Arrivals (DACA) Fraud. fraud investigations that USCIS refers
to ICE for investigation.
Petition for Relief of Covers costs associated with
Seizure. investigating relief of seizure when
property had been seized as part of a
fraud investigation in the context of
adjudication and naturalization
services.
Benefit Fraud................ Covers identity benefit fraud cases
directly related to adjudication and
naturalization fraud.
Unauthorized Practice of Covers fraud related to individuals
Immigration Law (UPIL)/ acting as an attorney or authorized
Notario Fraud. legal representative for aliens in an
attempt to fraudulently obtain a USCIS
benefit.
Document Benefit Fraud Task Targets criminal enterprises and
Force (DBFTF). individuals who attempt to use document
and benefit fraud to compromise the
integrity of the immigration system.
IEFA-funded personnel improve DBFTFs'
information sharing, reduce duplication
of efforts, and increase the
effectiveness of investigations
alongside our Federal, State, and local
law enforcement partners.
Operation Janus (Special Covers naturalization fraud by an alien
Interest Alien (SIA) Fraud). that's been identified through
biometrics for having an alternative
identity.
EB-5 Investor Fraud.......... Covers benefit fraud case for investing
$900,000+ into a business solely to gain
immigration status.
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Juvenile Deferred Action..... Covers routine investigative activities
to support DACA adjudication and/or to
confirm the DACA application
information.
H&L Visa Fraud............... Covers benefit fraud by illegally
obtaining H and L visas.
Benefit Fraud Assessment..... Statistical analysis of benefit fraud.
HQ-Denaturalization Referrals Covers naturalization fraud relating to
the vetting of denaturalization
referrals from the Department of State
and other federal agencies, now being
conducted by ICE.
Executive Office for Covers investigative activities that
Immigration Review (EOIR) focus on USCIS fraud that were referred
Referral. from EOIR.
USCIS Historical Fingerprint Covers activities related to HFE
Enrollment (HFE) Referrals. referrals from USCIS.
Military Marriage Fraud...... Covers benefit fraud from a military
marriage.
Sex Offender Naturalization.. Covers fraud during the naturalization
process, by not disclosing the fact that
they have a criminal record relating to
sex offenses, and the benefit would not
have been awarded had the criminal
history been disclosed.
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DHS notes that the aforementioned list of activities serves as the
basis for cost projections and is not intended to be all-inclusive. DHS
may use IEFA revenue to reimburse any IEFA-eligible expense, regardless
of whether DHS considered those expenses when setting fees.
d. Expansion of Investigations
ICE HSI case hours from Fiscal Year (FY) 2017, FY 2018, and FY 2019
are used to estimate future expenditures on those activities. Using an
activity-based cost model consistent with DHS methodology for USCIS fee
setting, the number of case hours were translated into total cost of
full-time equivalents (FTEs) needed to cover activities that DHS
proposes to fund with IEFA funds. DHS estimated a 5.2 percent growth
rate from FY 2020 projections and 1.9 percent constant rate to FY 2021
to fully fund the cost of future expenses consistent with recent trends
in the hours spent providing immigration adjudication and
naturalization services. The projected growth rate is based on the
growth rate for case hours in FY 2017 (517,531 hours), FY 2018 (547,774
hours), and FY 2019 (572,004 hours). There was a 5.84 percent increase
in HSI investigative case hours from FY 2017 to FY 2018 and a 4.42
percent increase in investigative case hours from FY 2018 to FY 2019.
The DHS forecast of 5.2 percent growth in FY 2020 based on historical
averages was applied to account for future costs.
Table 2 outlines the percent change of activity hours by fiscal
year.
Table 2--IEFA Hours by Fiscal Year
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IEFA activity Percent
Fiscal year hours change
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FY 2017....................................... 517,531 ........
FY 2018....................................... 547,774 5.84
FY 2019....................................... 572,004 4.42
FY 2020 *..................................... 601,748 5.2
FY 2021 *..................................... 601,748 0
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* Denotes forecast.
e. Projected Cost Estimates by Fiscal Year
In FY 2017, 2018, and 2019 HSI agents worked a total of 517,531
hours, 547,774 hours and 572,004 hours, respectively, on IEFA
reimbursable related activities. To determine the number of IEFA
activity hours for FY 2020, ICE analyzed historical growth rates from
the three preceding years, which averaged approximately 5.2 percent.
The IEFA activity hours for FY 2021 may remain the same. This results
in a ``total hours'' projection of 601,748 hours for FY 2020, and
601,748 hours for FY 2021. Hours were then translated into an FTE count
for an ICE, HSI Criminal Investigator (U.S. Office of Personnel
Management Classification Position Number 1811).\6\ Total FTEs were
then translated into a total cost for all HSI criminal investigators.
Total cost of HSI criminal investigators was derived using an ICE
Budget-approved modular cost table that accounts for salary,
compensation, locality payment, mission essential equipment (e.g.,
uniforms, technical equipment, supplies, and training), and inflation.
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\6\ U.S. Office of Personnel Management, General Schedule
Qualifications Standards, https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1800/criminal-investigator-treasury-enforcement-agent-1811/.
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Mission Support staff is also needed to support the investigators.
To determine the mission support FTEs required, a mission support ratio
of 0.32 to each criminal investigator was derived by taking the total
number of mission support FTEs divided by the total number of
investigators from the ICE FY 2017 to FY 2019 Table of Organization
Position System (TOPS) data. This FTE total was then translated into
total Mission Support Cost using the ICE Budget-approved cost table
that accounts for salary, compensation, locality payment, mission
essential equipment, supplies, trainings, and inflation.
ICE estimates that it will spend approximately 601,748
investigative hours on IEFA reimbursable activities in FY 2021. That
results in an estimated 355 criminal investigators and 113 mission
support professionals being required.\7\ Table 3 outlines the cost
estimate for the services provided.
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\7\ Actual needs may be slightly more or less based on the
ability to hire and on-board personnel and the level of services ICE
provides to support USCIS within a given year.
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Table 3--Cost Estimate for Immigration Adjudication and Naturalization Services
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HSI FTE Frontline
(1811 series) Mission support HSI mission Total cost (HSI
IEFA HSI 1811 cost (HSI 1811 FTE (HSI 1811 FTE support cost (MS 1811 FTE
Fiscal year activity FTE FTE * fully * MS FTE to 1811 FTE * fully frontline cost +
hours burdened 1811 FTE ratio) burdened MS FTE HSI MS cost)
cost) cost)
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FY 2017............................................... 517,531 305 $77,750,217 96 $17,021,439 $94,771,656
FY 2018............................................... 547,774 323 82,293,713 102 18,016,122 100,309,835
FY 2019............................................... 572,004 337 85,933,858 107 18,813,040 104,746,897
FY 2020............................................... 601,748 355 90,402,418 113 19,791,318 110,193,736
FY 2021 *............................................. 601,748 355 92,120,064 113 20,167,353 112,287,417
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* Denotes forecast.
As a result, DHS projects an annual transfer to ICE of
$112,287,417, rather than $207.6 million. Because the projected annual
transfer to ICE is lower than DHS previously proposed, the proposed fee
levels would be reduced accordingly. As the NPRM stated, the fees that
DHS proposed may change in the final rule based on policy decisions, in
response to public comments, intervening legislation, and other
reasons. 84 FR 62327. In the NPRM, to reduce uncertainty, USCIS laid
out what the fees would be if certain conditions materialize and
explained that the final fees would be one of the scenarios presented,
or an amount in between the highest and lowest fees proposed. Id. Table
21 in the NPRM outlines the proposed fee levels contained in the
proposed rule that would result if the ICE transfer of $207.6 million
either did or did not occur. Because the estimated amount of the
transfer is $112,287,417 million, the resulting fee schedule would, all
else remaining the same, be somewhere between those two levels.
Chad F. Wolf,
Acting Secretary.
[FR Doc. 2019-26521 Filed 12-6-19; 8:45 am]
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