Federal Register, Volume 85 Issue 149 (Monday, August 3, 2020)

[Federal Register Volume 85, Number 149 (Monday, August 3, 2020)]
[Rules and Regulations]
[Pages 46788-46929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16389]

[[Page 46787]]

Vol. 85

Monday,

No. 149

August 3, 2020

Part II

Department of Homeland Security

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8 CFR Parts 103, 106, 204, et al.

U.S. Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Final Rule

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules
and Regulations

[[Page 46788]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 106, 204, 211, 212, 214, 216, 217, 223, 235, 236,
240, 244, 245, 245a, 248, 264, 274a, 286, 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: Final rule.

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SUMMARY: This final rule adjusts certain immigration and naturalization
benefit request fees charged by U.S. Citizenship and Immigration
Services (USCIS). It also removes certain fee exemptions, changes fee
waiver requirements, alters premium processing time limits, and
modifies intercountry adoption processing. USCIS conducted a
comprehensive biennial fee review and determined that current fees do
not recover the full cost of providing adjudication and naturalization
services. Therefore, the Department of Homeland Security (DHS) is
adjusting USCIS fees by a weighted average increase of 20 percent,
adding new fees for certain immigration benefit requests, establishing
multiple fees for nonimmigrant worker petitions, and limiting the
number of beneficiaries for certain forms. This final rule is intended
to ensure that USCIS has the resources it needs to provide adequate
service to applicants and petitioners.

DATES: This final rule is effective October 2, 2020. Any application,
petition, or request postmarked on or after this date must be
accompanied with the fees established by this final rule.

FOR FURTHER INFORMATION CONTACT: Kika 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:

Table of Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Final Rule Provisions
D. Summary of Costs and Benefits
E. Effect on the Department of Justice's Executive Office for
Immigration Review (EOIR)
F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking
II. Background
A. History
B. Authority and Guidance
C. Basis for Fee Adjustments
D. Final Rule
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Comments Expressing General Support for the NPRM
C. Comments Expressing General Opposition to the NPRM
1. Immigration Policy Concerns
2. Other General Opposition
3. Proposed Fees Are Unconstitutional
4. Rule Will Have Negative Effects on Applicants
5. Rule Will Have Negative Effects on the Economy and Employers
6. Comments on the DACA Renewal Fee
D. Comments on Legal Adequacy of the Rule
E. Comments on Fee Waivers
1. Limits on Eligible Immigration Categories and Forms
2. Fee Waiver Income Requirements
3. Means-Tested Benefits
4. Public Charge Rule
5. Financial Hardship
6. Public Charge Ground of Inadmissibility and Affidavit of
Support Requirements
7. Discretionary Fee Waivers
8. Fee Waiver Documentation
9. Cost of Fee Waivers
10. Changes to Form I-912, Request for Fee Waiver
11. Suggestions
F. Comments on Fee Exemptions
1. EAD (Form I-765) Exemption
2. TPS
G. Comments on Specific Fees
1. Fees for Online Filing
2. Biometric Services Fee
3. Genealogy Fees, Forms G-1041, Genealogy Index Search
Request, and G-1041A, Genealogy Records Request
4. Form I-90, Application To Replace Permanent Resident Card
5. Form I-131, Application for Travel Document, Refugee Travel
Documents
6. Form I-131A, Application for Travel Document (Carrier
Documentation)
7. Form I-192, Application for Advance Permission To Enter as a
Nonimmigrant
8. Form I-193, Application for Waiver of Passport and/or Visa
9. Form I-290B, Notice of Appeal or Motion
10. Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant
11. Form I-485, Application To Register Permanent Residence or
Adjust Status
12. Form I-526, Immigrant Petition by Alien Investor
13. Form I-589, Application for Asylum and Withholding of
Removal Fee
14. Form I-600A/I-600 Supplement 3, Request for Action on
Approved Form I-600A/I-600
15. Form I-601A, Application for Provisional Unlawful Presence
Waiver
16. Form I-751, Petition To Remove Conditions on Residence
17. Form I-765, Application for Employment Authorization
18. Form I-817, Application for Family Unity Benefits
19. Form I-821D, DACA Renewal Fee
20. Form I-829, Petition by Investor To Remove Conditions on
Permanent Resident Status
21. Form I-881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal (Pursuant to Section 203 of
Public Law 105-100 (NACARA))
22. Forms I-924, Application for Regional Center Designation
Under the Immigrant Investor Program, and I-924A, Annual
Certification of Regional Center
23. Form I-929, Petition for Qualifying Family Member of a U-1
Nonimmigrant
24. Form N-400, Application for Naturalization
25. Other Naturalization and Citizenship Forms
H. Comments on Changes to Form I-129, Petition for a
Nonimmigrant Worker
I. Premium Processing
J. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)
K. Comments on Other General Feedback
L. Cost Analysis and DHS Rationale for Fee Adjustments
1. Workload Projections
2. Completion Rates
3. USCIS Staffing
4. Cost Baseline
5. Alternative Funding Sources
M. ICE Transfer
N. Processing Times and Backlogs
O. Fee Payment and Receipt Requirements
P. Fees Shared by CBP and USCIS
Q. Paperwork Reduction Act (PRA) Comment Responses
R. Statutory and Regulatory Responses
1. General Comments on the Regulatory Impact Analysis
2. Methodology Issues
3. Other Comments on the Cost-Benefit Analysis
4. Impacts on Lower-Income Individuals and Families
5. Impacts on Immigrant Populations in Distinct Geographic
Areas
6. Immigrants' Access to Legal and Supportive Services
7. Impacts on Students From Low Income Families
8. Impacts on Victimized Groups and Other Vulnerable
Populations
9. Impacts to Industries That Use H-2A Workers
10. Effects on Other Federal Agencies
IV. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
B. Regulatory Flexibility Act
1. Final Regulatory Flexibility Analysis (FRFA)
a. A Statement of Need for, and Objectives of, the Rule

[[Page 46789]]

b. A statement of the Significant Issues Raised by the Public
Comments in Respone to the Initail Regulatory Flexibility Analysis,
a Statement of the Assessment of the Agency of Such Issues, and a
Statement of Any Changes Made in the Proposed Rule as a Result of
Such Comments
c. The Response of the Agency to any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in
Response to the Rule, and a Detailed Statement of Any Change Made to
the Final Rule as a Result of the Comments
d. A Description of and an Estimate of the Number of Small
Entities to Which the Rule Will Apply or an Explanation of Why No
Such Estimate is Available
e. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Rule, Including an Estimate of
the Classes of Small Entities That Will be Subject to the
Requirement and the Type of Professional Skills Necessary for
Preparation of the Report or Record
f. Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities was Rejected
C. Congressional Review Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 Consultation and Coordination With
Indian Tribal Governments
H. Family Assessment
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act
K. Signature

List of Acronyms and Abbreviations

ABC Activity-Based Costing
the Act Homeland Security Act of 2002
ADA Americans with Disabilities Act
AOP Annual Operating Plan
APA Administrative Procedure Act
ASVVP Administrative Site Visit and Verification Program
ASC Application Support Center
BLS Bureau of Labor Statistics
CAA Cuban Adjustment Act of 1966
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFO Chief Financial Officer
CFR Code of Federal Regulations
CNMI Commonwealth of the Northern Mariana Islands
CUNY City University of New York
DACA Deferred Action for Childhood Arrivals
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
EAD Employment Authorization Document
EB-5 Employment-Based Immigrant Visa, Fifth Preference
EIN Employer Identification Number
E.O. Executive Order
EOIR Executive Office for Immigration Review
FBI Federal Bureau of Investigation
FDMS Federal Docket Management System
FOIA Freedom of Information Act
FPG Federal Poverty Guidelines
FR Federal Register
FRFA Final Regulatory Flexibility Analysis
FVRA Federal Vacancies Reform Act
FY Fiscal Year
GAO Government Accountability Office
GDP Gross Domestic Product
ICE U.S. Immigration and Customs Enforcement
IEFA Immigration Examinations Fee Account
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IRS Internal Revenue Service
ISAF International Security Assistance Forces
IT information technology
LCA Labor Condition Application
LGBTQ Lesbian, gay, bisexual, transgender, and questioning
IOAA Independent Offices Appropriations Act
LIFO Last In, First Out
LPR Lawful Permanent Resident
MOAs Memoranda of Agreement
MPP Migrant Protection Protocols
NACARA Nicaraguan Adjustment and Central American Relief Act
NAICS North American Industry Classification System
NARA National Archives and Records Administration
NEPA National Environmental Policy Act
NOID Notice of Intent to Deny
NPRM Notice of Proposed Rulemaking
NRC National Record Center
OIG DHS Office of the Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PA Privacy Act
PII Personally Identifiable Information
PRA Paperwork Reduction Act of 1995
PRC Permanent Resident Card
Privacy Act Privacy Act of 1974
Pub. L. Public Law
RFE Request for Evidence
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAVE Systematic Alien Verification for Entitlements
SBA Small Business Administration
SCRD Signature Confirmation Restricted Delivery
Secretary The Secretary of Homeland Security
SIJ Special Immigrant Juvenile
SNAP Supplemental Nutrition Assistance Program
SSI Supplemental Security Income
Stat. U.S. Statutes at Large
STEM Science, Technology, Engineering, and Mathematics
TPS Temporary Protected Status
TVPA Trafficking Victims Protection Act of 2000
TVPRA The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UAC Unaccompanied Alien Child
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
VAWA Violence Against Women Act
VPC Volume Projection Committee

I. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

DHS's authority is in several statutory provisions. Section 102 of
the Homeland Security Act of 2002 (the Act),\1\ 6 U.S.C. 112, and the
Immigration and Nationality Act of 1952 (INA) section 103, 8 U.S.C.
1103, charge the Secretary with the administration and enforcement of
the immigration and naturalization laws of the United States. Further,
authority for establishing fees is found in INA section 286(m), 8
U.S.C. 1356(m) (authorizing DHS to charge fees for adjudication and
naturalization services at a level to ``ensure recovery of the full
costs of providing all such services, including the costs of similar
services provided without charge to asylum applicants and other
immigrants'').\2\
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\1\ Public Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25, 2002).
\2\ The longstanding interpretation of DHS is that the
``including'' clause in INA section 286(m) does not constrain DHS's
fee authority under the statute. The ``including'' clause offers
only a non-exhaustive list of some of the costs that DHS may
consider part of the full costs of providing adjudication and
naturalization services. See INA section 286(m), 8 U.S.C. 1356(m);
84 FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May
4, 2016).

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C. Summary of the Final Rule Provisions

DHS carefully considered the public comments received. This final
rule adopts, with appropriate changes, the regulatory text proposed in
the Notice of Proposed Rulemaking (NPRM) published in the Federal
Register on November 14, 2019. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements; Proposed rule, 84 FR 62280. This final rule also
relies on all the justifications articulated in the NPRM, except as
reflected below.
This final rule makes the following changes as compared to the
NPRM:
Does not provide for the transfer of Immigration
Examinations Fee Account (IEFA) funds collected by USCIS to U.S.
Immigration and Customs Enforcement (ICE). 84 FR 62287; ``U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements,'' Proposed
Rule; Extension of Comment Period; Availability of Supplemental
Information, 84 FR 67243 (Dec. 9, 2019).
Removes the proposed fee ($275) for Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, filed for
renewal of Deferred Action for Childhood Arrivals (DACA). 84 FR 62320,
62362; proposed and new 8 CFR 106.2(a)(38).
Reassigns National Record Center (NRC) costs that do not
directly apply to the genealogy program, thereby setting genealogy fees
lower than proposed. 84 FR 62315, 62316, 62362; proposed 8 CFR
106.2(c)(1) and (2); new 8 CFR 106.2(c)(1) and (2).
Realigns $10 million of anticipated IEFA costs for the
Office of Citizenship to account for citizenship grants appropriations
received via the FY 2019--2020 DHS appropriation bills. See
Consolidated Appropriations Act, 2019, Public Law 116-6, div. A, tit.
IV (Feb. 15, 2019) and Consolidated Appropriations Act, 2020, Public
Law 116-93, div. D, tit. IV (Dec. 20, 2019).
Provides a $50 reduction in the fee for Form I-485,
Application to Register Permanent Residence or Adjust Status, filed in
the future for principal applicants who pay the $50 fee for Form I-589
and are subsequently granted asylum. New 8 CFR 106.2(a)(17)(ii).
Provides that petitioners for and recipients of Special
Immigrant Juvenile (SIJ) classification who, at the time of filing,
have been placed in out-of-home care under the supervision of a
juvenile court or a state child welfare agency, may submit requests for
fee waivers for Form I-485 and associated forms; and explains the
documentation requirement for SIJs. New 8 CFR 106.3(a)(2)(i) and
(a)(3).
Provides that an Afghan or Iraqi Interpreter, an Iraqi
National employed by or on behalf of the U.S. Government, or an Afghan
National employed by the U.S. Government or the International Security
Assistance Forces (ISAF) may submit requests for fee waivers for Form
I-485 and associated forms.\3\ New 8 CFR 106.3(a)(2)(ii).
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\3\ As described in section 1059(a)(2) of the National Defense
Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6,
2006) as amended; section 602(b) of the Afghan Allies Protection Act
of 2009, Public Law 111-8, title VI (Mar. 11, 2009), as amended, 8
U.S.C. 1101 note; and section 1244(g) of the National Defense
Authorization Act for Fiscal Year 2008, as amended Public Law 110-
181 (Jan. 28, 2008).
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Provides that requestors who meet the requirements of INA
section 245(l)(7), 8 U.S.C. 1255(l)(7) may also request a fee waiver
for the Forms N-400, N-600, and N-600K. New 8 CFR 106.3(a)(3).
Also provides that SIJs who are placed in out-of-home care
under the supervision of a juvenile court or a state child welfare
agency and Afghan or Iraqi Interpreter, or Iraqi National employed by
or on behalf of the U.S. Government or Afghan National employed by the
U.S. Government or ISAF may submit requests for fee waivers for Forms
N-400, N-600, and N-600K. New 8 CFR 106.3(a)(2)(i) and (a)(3).
Clarifies that the Violence Against Women Act (VAWA) self-
petitioner classification includes individuals who meet the
requirements of INA section 101(a)(51) and anyone otherwise self-
petitioning due to battery or extreme cruelty pursuant to the
procedures in INA section 204(a) See new 8 CFR 106.3(a)(1)(i).
Consolidates the Director's discretionary provision on fee
waivers to remove redundancy. See proposed 8 CFR 106.3(b) and (c); 84
FR 62363 (containing the text that is being consolidated). New 8 CFR
106.3(b).
Moves proposed 8 CFR 106.3(d)(1) and (d)(2) (not
permitting a fee waiver for a requestor who is subject to the affidavit
of support, already a sponsored immigrant, or subject to the public
charge inadmissibility ground) to 8 CFR 106.3(b)(1) and (b)(2)
(governing waivers provided by the USCIS Director), because an
affidavit of support and the public charge inadmissibility ground are
not applicable to applicants who are otherwise eligible for fee waivers
in this rule). New 8 CFR 106.3(b).
Clarifies the fee waiver request documentation
requirements for VAWA, T, and U requestors who may not have access to
documentation of household income. New 8 CFR 106.3(f)(5).
Provides that the fee for forms currently available for
online filing with USCIS and filed online will be $10 lower than the
fee for the same paper forms. New 8 CFR 106.2(d).
Requires a separate $30 biometric services fee for Form I-
765 filed by pending asylum applicants and applicants for status as a
long-term resident from the Commonwealth of the Northern Mariana
Islands (CNMI). New 8 CFR 106.2(a)(32)(i).
Separates fee exemptions for Form I-765 for renewal or
replacement of an Employment Authorization Document and clarifies the
provisions related to VAWA self-petitioners who are eligible for a fee
exemption. New 8 CFR 106.2(a)(32).
Incorporates a $10 fee for the registration requirement
for petitioners seeking to file H-1B petitions on behalf of cap-subject
aliens. See old 8 CFR 103.7(b)(1)(i)(NNN), 84 FR 60307 (Nov. 8, 2019);
new 8 CFR 106.2(c)(11). The final regulation at 8 CFR 103.2(a)(1) also
clarifies that all USCIS fees are generally non-refundable, regardless
of whether they apply to a benefit request, another adjudication and
naturalization service, or other requests such as H-1B Registration,
DACA, Civil Surgeon Designation, and Genealogy requests.
Updates 8 CFR 244.6(b) to clarify the Temporary Protected
Status (TPS) related fee provisions in accordance with the NPRM. See 84
FR 62301 (stating that the rule proposed to remove the Form I-765 fee
exemption for Temporary Protected Status if the individual is filing an
initial TPS application and is under 14 years of age or over 65 years
of age).
DHS will maintain the DACA policy fees as in effect before
September 5, 2017, at $410 for employment authorization and $85 for
biometric services. New 8 CFR 106.2(a)(32)(vi).
Makes other minor non-substantive and clarifying changes.
DHS summarizes the final fees in Table 1. The table excludes fees
established and required by statute and those that DHS cannot adjust.
The table only calculates the change in the current fee. If an
applicant, petitioner, or requestor must file additional forms as a
result of policy changes in this rule, then the individual changes to a
single

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fee may not represent the total change in fees for every circumstance.

Table 1--Non-Statutory IEFA Immigration Benefit Request Fees
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Percentage
Immigration benefit request Current fee $ Final fee $ Change ($) change
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I-90 Application to Replace Permanent Resident 455 405 -50 -11
Card (online filing)...........................
I-90 Application to Replace Permanent Resident 455 415 -40 -9
Card (paper filing)............................
I-102 Application for Replacement/Initial 445 485 40 9
Nonimmigrant Arrival-Departure Document........
I-129 Petition for a Nonimmigrant worker........ 460 N/A N/A N/A
I-129CW, I-129E&TN, and I-129MISC........... 460 695 235 51
I-129H1..................................... 460 555 95 21
I-129H2A--Named Beneficiaries............... 460 850 390 85
I-129H2B--Named Beneficiaries............... 460 715 255 55
I-129L...................................... 460 805 345 75
I-129O...................................... 460 705 245 53
I-129H2A--Unnamed Beneficiaries............. 460 415 -45 -10
I-129H2B--Unnamed Beneficiaries............. 460 385 -75 -16
I-129F Petition for Alien Fianc[eacute](e)...... 535 510 -25 -5
I-130 Petition for Alien Relative (online 535 550 15 3
filing)........................................
I-130 Petition for Alien Relative (paper filing) 535 560 25 5
I-131 Application for Travel Document........... 575 590 15 3
I-131 Refugee Travel Document for an individual 135 145 10 7
age 16 or older................................
I-131 Refugee Travel Document for a child under 105 115 10 10
the age of 16..................................
I-131A Application for Travel Document (Carrier 575 1,010 435 76
Documentation).................................
I-140 Immigrant Petition for Alien Worker....... 700 555 -145 -21
I-191 Application for Relief Under Former 930 790 -140 -15
Section 212(c) of the Immigration and
Nationality Act (INA)..........................
I-192 Application for Advance Permission to 585 1,400 815 139
Enter as Nonimmigrant (CBP) \4\................
I-192 Application for Advance Permission to 930 1,400 470 51
Enter as Nonimmigrant (USCIS)..................
I-193 Application for Waiver of Passport and/or 585 2,790 2,205 377
Visa...........................................
I-212 Application for Permission to Reapply for 930 1,050 120 13
Admission into the U.S. After Deportation or
Removal........................................
I-290B Notice of Appeal or Motion............... 675 700 25 4
I-360 Petition for Amerasian, Widow(er), or 435 450 15 3
Special Immigrant..............................
I-485 Application to Register Permanent 1,140 1,130 -10 -1
Residence or Adjust Status \5\.................
750 1,130 380 51
I-526 Immigrant Petition by Alien Investor...... 3,675 4,010 335 9
I-539 Application to Extend/Change Nonimmigrant 370 390 20 5
Status (online filing).........................
I-539 Application to Extend/Change Nonimmigrant 370 400 30 8
Status (paper filing)..........................
I-589 Application for Asylum and for Withholding 0 50 50 N/A
of Removal.....................................
I-600/600A Adoption Petitions and Applications.. 775 805 30 4
I-600A Supplement 3 Request for Action on N/A 400 N/A N/A
Approved Form I-600A...........................
I-601 Application for Waiver of Ground of 930 1,010 80 9
Excludability..................................
I-601A Provisional Unlawful Presence Waiver..... 630 960 330 52
I-612 Application for Waiver of the Foreign 930 515 -415 -45
Residence Requirement (Under Section 212(e) of
the INA, as Amended)...........................
I-687 Application for Status as a Temporary 1,130 1,130 0 0
Resident.......................................
I-690 Application for Waiver of Grounds of 715 765 50 7
Inadmissibility................................
I-694 Notice of Appeal of Decision-............. 890 715 -175 -20
I-698 Application to Adjust Status from 1,670 1,615 -55 -3
Temporary to Permanent Resident (Under Section
245A of the INA)...............................
I-751 Petition to Remove Conditions on Residence 595 760 165 28
I-765 Application for Employment Authorization 410 550 140 34
(Non-DACA).....................................
I-765 Application for Employment Authorization 410 410 0 0
(DACA only) \6\................................
I-800/800A Adoption Petitions and Applications.. 775 805 30 4
I-800A Supplement 3 Request for Action on 385 400 15 4
Approved Form I-800A...........................
I-817 Application for Family Unity Benefits..... 600 590 -10 -2
I-824 Application for Action on an Approved 465 495 30 6
Application or Petition........................
I-829 Petition by Investor to Remove Conditions. 3,750 3,900 150 4
I-881 Application for Suspension of Deportation 285 1,810 1,525 535
or Special Rule Cancellation of Removal \7\....
570 1,810 1,240 218
I-910 Application for Civil Surgeon Designation. 785 635 -150 -19
I-924 Application For Regional Center 17,795 17,795 0 0
Designation Under the Immigrant Investor
Program........................................
I-924A Annual Certification of Regional Center.. 3,035 4,465 1,430 47
I-929 Petition for Qualifying Family Member of a 230 1,485 1,255 546
U-1 Nonimmigrant...............................
N-300 Application to File Declaration of 270 1,305 1,035 383
Intention......................................
N-336 Request for Hearing on a Decision in 700 1,725 1,025 146
Naturalization Proceedings (online filing).....

[[Page 46792]]

N-336 Request for Hearing on a Decision in 700 1,735 1,035 148
Naturalization Proceedings (paper filing)......
N-400 Application for Naturalization (online 640 1,160 520 81
filing)........................................
N-400 Application for Naturalization (paper 640 1,170 530 83
filing)\8\..................................... 320 1,170 850 226
N-470 Application to Preserve Residence for 355 1,585 1,230 346
Naturalization Purposes........................
N-565 Application for Replacement Naturalization/ 555 535 -20 -4
Citizenship Document (online filing)...........
N-565 Application for Replacement Naturalization/ 555 545 -10 -2
Citizenship Document (paper filing)............
N-600 Application for Certificate of Citizenship 1,170 990 -180 -15
(online filing)................................
N-600 Application for Certificate of Citizenship 1,170 1,000 -170 -15
(paper filing).................................
N-600K Application for Citizenship and Issuance 1,170 935 -235 -20
of Certificate (online filing).................
N-600K Application for Citizenship and Issuance 1,170 945 -225 -19
of Certificate (paper filing)..................
USCIS Immigrant Fee............................. 220 190 -30 -14
Biometric Services (Non-DACA) \9\............... 85 30 -55 -65
Biometric Services (DACA only) \10\............. 85 85 0 0
G-1041 Genealogy Index Search Request (online 65 160 95 146
filing)........................................
G-1041 Genealogy Index Search Request (paper 65 170 105 162
filing)........................................
G-1041A Genealogy Records Request (online 65 255 190 292
filing)........................................
G-1041A Genealogy Records Request (paper filing) 65 265 200 308
----------------------------------------------------------------------------------------------------------------

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\4\ Because the FY 2016/2017 fee review and resulting fee change
were based on USCIS's costs for processing inadmissibility waivers
and not CBP's costs, the Form I-192 fee remained $585 when filed
with and processed by CBP. See 8 CFR 103.7(b)(1)(i)(P); 81 FR 73307.
\5\ Currently, there are two fees for Form I-485. See 8 CFR
103.7(b)(1)(i)(U). The $750 fee is applied to ``an applicant under
the age of 14 years when [the application] is (i) submitted
concurrently with the Form I-485 of a parent, (ii) the applicant is
seeking to adjust status as a derivative of his or her parent, and
(iii) the child's application is based on a relationship to the same
individual who is the basis for the child's parent's adjustment of
status, or under the same legal authority as the parent.'' See 84 FR
62305. With this rule, DHS removes the reduced child fee. See
section III.G.11.b. Form I-485 Child Fee. Additionally, DHS adds a
$1,080 fee for certain asylum applicants. See section III.G.11.c.
Form I-485 Reduced Fee for Asylees and new 8 CFR 106.2(a)(17)(ii).
\6\ DHS will maintain the DACA fees at $410 for employment
authorization and $85 for biometric services. See section III.C.6.
Comments on DACA Renewal Fee of this preamble; new 8 CFR
106.2(a)(32)(vi).
\7\ Currently there are two USCISs fees for Form I-881: $285 for
individuals and $570 for families. See 8 CFR 103.7(b)(1)(i)(QQ)(1).
EOIR has a separate $165 fee. DHS does not change the EOIR fee with
this rule.
\8\ Currently, there are two fees for paper filing of Form N-
400. See 8 CFR 103.7(b)(1)(i)(BBB). This final rule eliminates the
reduced fee option for an applicant whose documented income is
greater than 150 percent and not more than 200 percent of the
Federal poverty level. See section III.G.24.c of this final rule or
84 FR 62317 for the proposed rule.
\9\ As explained in this preamble and NPRM, this rule only
requires the separate biometric services fee in certain cases. See
section III.G.2. Biometric Services Fee of this preamble; 84 FR
62302; new 8 CFR 103.7(a)(2), 106.2(a)(32)(i), and
106.2(a)(37)(iii).
\10\ See footnote 6.
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D. Summary of Costs and Benefits

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available alternatives, and if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This rulemaking has
been designated an ``economically significant regulatory action'' under
section 3(f)(1) of E.O. 12866. Accordingly, it has been reviewed by the
Office of Management and Budget (OMB). E.O. 13771 directs agencies to
reduce regulation and control regulatory costs. Because the estimated
impacts range from costs to cost savings, this final rule is considered
neither regulatory or deregulatory under E.O. 13771. Details on the
estimated impacts of this final rule can be found in the rule's
economic analysis, section 2.
This final rule adjusts certain immigration and naturalization
benefit request fees charged by U.S. Citizenship and Immigration
Services (USCIS). It also removes certain fee exemptions, changes fee
waiver requirements,\11\ alters premium processing time limits, and
modifies intercountry adoption processing. This final rule removes the
proposed fee that was introduced in the NPRM of this rule for Form I-
821D; \12\ it does not provide for the proposed transfer of any
Immigration Examination Fee Account (IEFA) funds collected by USCIS to
ICE; \13\ it reassigns the proposed National Record Center (NRC) costs
that do not directly apply to the genealogy program, thereby setting
genealogy fees lower than proposed; \14\ and it now allows for a $10
reduction in filing fee for applicants who file online for forms that
are electronically available by USCIS rather than submit paper
applications.\15\
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\11\ Also, in this final rule DHS Consolidates the Director's
discretionary provision on fee waivers to remove redundancy. 84 FR
62363. Proposed and new 8 CFR 106.3.
\12\ 84 FR 62320, 62362; proposed and new 8 CFR 106.2(a)(2)(38).
\13\ 84 FR 62287, 84 FR 67243. This final rule does not transfer
funds to ICE. Therefore, DHS removes $207.6 million for ICE from its
cost baseline, resulting in lower fees than if DHS pursued the
transfer of funds.
\14\ 84 FR 62315, 62316, 62362; proposed and new 8 CFR
106.2(c)(1)-(c)(2); new 8 CFR 106.2(c)(1)-(c)(2).
\15\ New 8 CFR 106.2(d).
---------------------------------------------------------------------------

The fee schedule that went into effect on December 23, 2016 was
expected to yield approximately $3.4 billion of average annual revenue
during the FY 2019/2020 biennial period. This represents a $0.9
billion, or 36 percent, increase from the FY 2016/2017 fee rule
projection of $2.5 billion. See 81 FR 26911. The projected revenue
increase is due to higher fees as a result of the FY 2016/2017 fee rule
and more anticipated fee-paying receipts. The FY 2016/2017 fee rule
forecasted approximately 5.9 million total workload receipts and 4.9
million fee-paying receipts, excluding biometric services. See 81 FR
26923-4. However, the FY 2019/2020 fee review forecasts approximately
8.5 million total workload receipts and 7.0 million fee-paying
receipts, excluding biometric

[[Page 46793]]

services. This represents a 44 percent increase to workload and a 43
percent increase to fee-paying receipt assumptions.\16\
---------------------------------------------------------------------------

\16\ See FY 2019/2020 Immigration Examinations Fee Account Fee
Review Supporting Documentation with Addendum, which is part of the
docket for this final rule. DHS revised the volumes to exclude DACA
and change fee-paying assumptions for Forms N-400, N-600, and N-
600K, as discussed later in this preamble.
---------------------------------------------------------------------------

For the 10-year implementation period of the rule, DHS estimates
the annualized costs of the rule to be $13,856,291, annualized at
either 3- and 7-percent discount rates. DHS estimates the annualized
cost savings to be $6,192,201 to $22,546,053. DHS estimates the
annualized net societal costs and savings of the rule to range from
costs of $7,664,090 to savings of $8,689,762. Over the 10-year
implementation period of the rule, DHS estimates the annualized
transfers to the government from applicants/petitioners to be
$551,842,481, annualized at either 3- and 7-percent discount rates.
Over the same 10-year implementation period of the rule, DHS estimates
the annualized transfers of the rule between different groups of fee-
paying applicants and/or petitioners to specific form populations is
$832,239,426, annualized at either 3- and 7-percent discount rates.
The final revenue increase is based on USCIS costs and volume
projections available at the time of the USCIS fee review. A full
analysis of these regulatory provisions and their impacts can be found
in the stand-alone Regulatory Impact Analysis found in the docket of
this rulemaking and in the statutory and regulatory requirements
section of this preamble.

E. Effect on the Department of Justice's Executive Office for
Immigration Review (EOIR)

DHS notes possible ancillary effects of this final rule on the fees
charged by the Executive Office for Immigration Review (EOIR). In the
NPRM, DHS proposed a fee for a Form I-589 filed with DHS only. Whether
the fee also will apply to a Form I-589 filed with EOIR is a matter
within the jurisdiction of the Department of Justice (DOJ) rather than
DHS, subject to the laws and regulations governing the fees charged in
EOIR immigration proceedings. 84 FR 62318. DHS does not directly set
any fees for DOJ. DHS did not collaborate with DOJ to calculate or
incorporate the costs for DOJ adjudication and naturalization services
into the USCIS Activity-Based Costing (ABC) model used for this final
rule. After the NPRM was published, DOJ published a rule that proposed
to increase the fees for those EOIR applications, appeals, and motions
that are subject to an EOIR-determined fee, based on a fee review
conducted by EOIR. 85 FR 11866 (Feb. 28, 2020). EOIR also stated that
its proposed rule would not affect the fees that have been established
by DHS with respect to DHS forms for applications that are filed or
submitted in EOIR proceedings. Id. at 11871. DOJ did not propose any
revisions to 8 CFR 1103.7(b)(4)(ii) in its rule that would change its
longstanding use of DHS forms and fees. Rather, EOIR proposed to revise
its regulations to make changes conforming to the DHS NPRM, namely the
transfer of DHS's fee schedule from 8 CFR 103.7 to the new 8 CFR part
106. Id. Consequently, in immigration court proceedings, EOIR will
continue to charge fees established by DHS for DHS forms, including the
fees that DHS is establishing in this final rule, which include but are
not limited to the fees for Form I-485, Application to Register
Permanent Residence or Adjust Status; Form I-589, Application for
Asylum and Withholding of Removal Fee; \17\ and Form I-601, Application
for Waiver of Grounds of Inadmissibility.
---------------------------------------------------------------------------

\17\ No fee would apply where an applicant submits a Form I-589
for the sole purpose of seeking withholding of removal under INA
section 241(b)(3), 8 U.S.C. 1231(b)(3), or protection from removal
under the regulations implementing U.S. obligations under Article 3
of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). See 85 FR 11871.
---------------------------------------------------------------------------

F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and
Rulemaking

DHS acknowledges the broad effects of the COVID-19 international
pandemic on the United States broadly and the populations affected by
this rule. USCIS has seen a dramatic decline in applications and
petitions during the COVID-19 pandemic which has also resulted in an
unprecedented decline in revenue. DHS has no comparable historical data
that can be used to project the scope, duration, and total effect this
will have on USCIS' revenue. As a result, USCIS is monitoring its
revenue collections daily. In April 2020, USCIS projected that USCIS'
non-premium revenue for April 2020 through September 2020 would fall
approximately 59 percent below USCIS' initial FY 2020 annual operating
plan revenue projection based on the dramatic reduction in fees
received during the pandemic. The projections show that USCIS would
receive $1.1 billion less in non-premium revenue in the second half of
the fiscal year than previously forecast.\18\ USCIS cannot absorb that
large of a revenue loss and have enough funding to sustain operations
at the same level as prior to the pandemic. Therefore, DHS has provided
technical assistance identifying for Congress USCIS funding needs to
help cover payroll and other fixed costs in FY 2020 ($571 million) and
to have enough carryover ($650 million) available during the first
quarter of FY 2021 to continue operations while new fees continue to be
collected. The additional revenue provided by this rule addresses the
difference between the costs of USCIS operations and USCIS revenue for
the biennial period as projected at the time of the USCIS fee review.
The amount of funding identified in DHS's technical assistance to
Congress would restore USCIS' financial situation to its pre-rule
status and would not obviate the need for DHS to adjust USCIS' fees to
address the projected disparity between costs and revenue identified in
this rule.
---------------------------------------------------------------------------

\18\ In April 2020, USCIS revised its internal annual operating
plan revenue projections based on observed receipt patterns for each
form during the pandemic. The annual operating plan revenue
projections are not the same as the fee rule revenue projections,
and revisions to them do not adjust the results of the USCIS fee
review.
---------------------------------------------------------------------------

DHS makes no changes in this rule in response to the pandemic.
USCIS considers all available data at the time it conducts its fee
review. USCIS conducted most of the FY 2019/2020 fee review in FY 2017,
before the emergence of the pandemic. At that time, USCIS did not
foresee, and could not reasonably have foreseen, the effects of such a
pandemic on USCIS receipt, revenue, or cost projections during the FY
2019/2020 biennial period, and we cannot project the effects at this
time. The projections in this rule were based on conventional
conditions, and with no way of knowing or being able to predict the
long-term effects of COVID-19 at this point, DHS must assume that
filing volumes will return to near previous levels within a reasonable
period. Thus, DHS proceeds with this rulemaking on the basis of the FY
2019/2020 USCIS fee review and associated projections. Consistent with
past practice and as required by the CFO Act, USCIS will evaluate all
available data at the time it conducts future fee reviews, including
data related to the COVID-19 pandemic and any potential effects on
USCIS workload volumes, revenue, or costs. DHS will consider these
effects in future fee rules.

II. Background

A. History

On November 14, 2019, DHS published a proposed rule in the Federal
Register (docket USCIS-2019-

[[Page 46794]]

0010). See 84 FR 62280. In consideration of requests to extend the
comment period and to provide additional time for the public to review
supplemental information, on December 9, 2019, DHS published a proposed
rule; extension of comment period; availability of supplemental
information; and extended the comment deadline from December 16, 2019
through December 30, 2019. 84 FR 67243 (Dec. 9, 2019). Then on January
24, 2020, DHS further extended the comment period until February 10,
2020. See 85 FR 4243 (Jan. 24, 2020). In addition, DHS announced that
it would consider comments received during the entire public comment
period, including comments received since December 30, 2019. Id. In
this final rule, DHS will refer to these three documents collectively
as the proposed rule or NPRM.

B. Authority and Guidance

DHS issues this final rule consistent with INA section 286(m), 8
U.S.C. 1356(m) and the Chief Financial Officers (CFO) Act, 31 U.S.C.
901-03 (requiring each agency's CFO to review, on a biennial basis, the
fees imposed by the agency for services it provides and to recommend
changes to the agency's fees).
This final rule is also consistent with non-statutory guidance on
fees, the budget process, and federal accounting principles. See OMB
Circular A-25, 58 FR 38142 (July 15, 1993) (establishing federal policy
guidance regarding fees assessed by federal agencies for government
services); \19\ Federal Accounting Standards Advisory Board Handbook,
Version 17 (06/19), Statement of Federal Financial Accounting Standards
4: Managerial Cost Accounting Standards and Concepts, SFFAS 4
(generally describing cost accounting concepts and standards, and
defining ``full cost'' to mean the sum of direct and indirect costs
that contribute to the output, including the costs of supporting
services provided by other segments and entities.); id. at 49-66
(identifying various classifications of costs to be included and
recommending various methods of cost assignment); \20\ see also OMB
Circular A-11, Preparation, Submission, and Execution of the Budget,
section 20.7(d), (g) (June 29, 2018) (providing guidance on the FY 2020
budget and instructions on budget execution, offsetting collections,
and user fees).\21\ DHS uses OMB Circular A-25 as general policy
guidance for determining user fees for immigration benefit requests,
with exceptions as outlined in section III.B. of the preamble. DHS also
follows the annual guidance in OMB Circular A-11 if it requests
appropriations to offset a portion of IEFA costs.\22\
---------------------------------------------------------------------------

\19\ Available at https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf (last viewed 03/06/2020).
\20\ Available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (last viewed 03/06/2020).
\21\ Available at https://www.whitehouse.gov/wp-content/uploads/2018/06/a11_2018.pdf (last viewed 03/06/2020).
\22\ OMB Circulars A-25 and A-11 provide nonbinding internal
Executive Branch direction for the development of fee schedules
under the Independent Offices Appropriations Act (IOAA) and
appropriations requests, respectively. See 5 CFR 1310.1.
---------------------------------------------------------------------------

Finally, this final rule accounts for, and is consistent with,
congressional appropriations for specific USCIS programs. See
Consolidated Appropriations Act, 2019, Public Law 116-6, div. A, tit.
IV (Feb. 15, 2019) and Consolidated Appropriations Act, 2020, Public
Law 116-93, div. D, tit. IV (Dec. 20, 2019).

C. Basis for Fee Adjustments

DHS conducted a comprehensive fee review for the FY 2019/FY 2020
biennial period. It identified a projected average annual cost and
revenue differential of $1,262.3 million between the revenue
anticipated under current fees and the anticipated full cost of
providing immigration adjudication and naturalization services. DHS
revises the estimated cost and revenue differential to $1,035.9 million
in this final rule. In the final rule, DHS has removed $226.4 million
of average annual estimated costs related to the immigration
adjudication and naturalization services provided by ICE and the
Deferred Action for Childhood Arrival (DACA) policy from the budget
projection used to calculate the fees in the NPRM. DHS issues this
final rule to adjust USCIS' fee schedule to recover the full cost of
providing immigration adjudication and naturalization services.

Table 2--Revised IEFA Non-Premium Cost and Revenue Projections Comparison
----------------------------------------------------------------------------------------------------------------
IEFA Non-Premium Cost and Revenue Projections Comparison
-----------------------------------------------------------------------------------------------------------------
FY 2019/2020
Comparison FY 2019 FY 2020 average
----------------------------------------------------------------------------------------------------------------
Non-Premium Revenue.................................... $3,408,233,376 $3,408,233,376 $3,408,233,376
Non-Premium Budget..................................... $4,331,978,119 $4,556,386,463 $4,444,182,291
--------------------------------------------------------
Difference......................................... ($923,744,743) ($1,148,153,087) ($1,035,948,915)
----------------------------------------------------------------------------------------------------------------

D. Final Rule

Following careful consideration of public comments received, DHS
made modifications to the NPRM's regulatory text, as described above.
Rationale provided in the background section of the NPRM remains valid,
except as described in this regulatory preamble. Section III of this
preamble includes a detailed summary and analysis of the public
comments. Comments and supporting documents may be reviewed at the
Federal Docket Management System (FDMS) at http://www.regulations.gov,
docket number USCIS-2019-0010.

III. Response to Public Comments on the Proposed Rule

A. Summary of Public Comments

DHS received a total of 43,108 public comment submissions in Docket
USCIS-2019-0010 in response to the NPRM.\23\ DHS reviewed all the
public comments received in response to the NPRM and addresses relevant
comments in this final rule, grouped by subject area. The majority of
comment submissions were from individual and anonymous commenters.
Other commenters included healthcare providers; research institutes and
universities; law firms and individual attorneys; federal, state,
local, and tribal

[[Page 46795]]

elected officials; state and local government agencies; religious and
community organizations; advocacy groups; unions; as well as trade and
business organizations. While some commenters wrote that they supported
the NPRM, the vast majority of commenters opposed all or part of it.
---------------------------------------------------------------------------

\23\ Of the 43,108 public comment submissions received, 12,114
were posted to www.regulations.gov. The other 30,994 submissions
were designated ``inactive--do not post'' and included form copies,
duplicates, and non-germane submissions.
---------------------------------------------------------------------------

B. Comments Expressing General Support for the NPRM

Comment: Several commenters expressed general support for the NPRM.
Most did not state precise reasons for their support. Examples of the
rationale for some of the generally supportive comments include: Fees
are a small price to pay for the benefits of immigration; the burden of
immigration should fall on the applicants and not on U.S. taxpayers;
the fees will discourage fraudulent immigration; USCIS must have funds
to operate; and the rule would benefit the U.S. government. A few
commenters suggested that fees should be even higher than DHS proposed.
One commenter generally supported the proposal and wrote that the
methodology used in the biennial fee review was accurate and fully
compliant with statutory requirements set forth at INA sections 286(m)
and (n), 8 U.S.C. 1356(m), (n). This commenter said the fee review was
also compliant with OMB and Federal Accounting Standards Board
standards for budgeting and financial management.
Response: DHS appreciates that some commenters support the NPRM.
However, it has not separately summarized these comments and does not
make any changes in this final rule because of them.

C. Comments Expressing General Opposition to the NPRM

Many commenters generally opposed the NPRM, including the proposed
fees, magnitude of the fee adjustments, charging fees in general, and
specific proposed policy changes. DHS summarized and responded to the
public comments as follows:
1. Immigration Policy Concerns
Comment: Many commenters opposed fee adjustments for policy reasons
generally suggesting that the fees will be harmful. The comments are
summarized as follows:
Immigration is important to the United States and the NPRM
betrays or is contrary to American values.
USCIS has an enormous and far-reaching impact and it is
imperative that USCIS consider the harmful human effects of the
proposed fee increases.
The fee increase is an attack on immigrants and vulnerable
populations.
The fees would especially affect people of color; the rule
implements and displays the racial animus that officials have
expressed, is designed to keep non-white immigrants out of the U.S.,
limits people of color from becoming lawful permanent residents or U.S.
citizens, and would have a negative effect on the Latin population.
The rule is cruel, inhumane, nationalistic, fascist,
racist, xenophobic, intended to limit voting rights to the wealthy, and
deter green card holders from seeking citizenship.
The fee increases will create financial hardships for low-
income immigrants and the increased cost of renewing residency cards
would make it more difficult for immigrants to obtain employment or
provide proof of their immigration status.
Low income immigrants will be forced to choose between
providing for basic needs and pursuing immigration benefits.
The fee increase is an attack on the immigrant and refugee
communities who already face discrimination, language barriers, lack of
services, poverty, marginalization, persecution, trauma, and fear.
High fees could result in healthcare avoidance and other
negative impacts on foreign-born individuals, as well as their U.S.
citizen family members.
The rule would harm LGBTQ or HIV positive noncitizens.
The rule's adverse and disparate impact on immigrants of
color renders the proposed rule arbitrary and capricious in
contravention of federal anti-discrimination protections.
The rule creates roadblocks to the integration of
immigrants.
The rule attempts to establish discriminatory policies
that have been judicially enjoined and to prevent fair and equal access
to the U.S. immigration system.
The proposed fee increase would prevent many immigrants
from seeking and obtaining the right to vote. A commenter questioned
whether the increase was intentionally seeking to suppress potential
low- and middle-income immigrant voters.
DHS should remove financial barriers clearly intended to
target the poor to encourage people to use the legal immigration
process.
Increased fees and removal of fee waiver categories in the
proposed rule would result in more applicants being put into removal
proceedings.
The proposal would worsen USCIS' already bad reputation.
USCIS is engaging in partisan machinations rather than
acting as a neutral federal agency.
The proposal would increase predatory and fraudulent
immigration services scams and USCIS will need to enhance its efforts
to combat these harmful practices.
The proposal would negatively impact familial integrity
and family unity and would increase the financial strain on immigrants'
household resources that would be better spent on improving the
family's welfare.
The proposal, along with the previous public charge rule,
demonstrates DHS' ``animus towards low-income immigrants seeking family
unity'' and urged the agency to instead facilitate family unity
regardless of immigrants' finances.
The proposal would create an ``invisible wall'' that would
block many hard-working noncitizens from accessing immigration benefits
and would cause long-term family separation.
Response: DHS proposed adjustments to USCIS' fee schedule to ensure
full cost recovery. DHS did not target any particular group or class of
individuals, or propose changes with the intent to deter requests from
low-income immigrants seeking family unity or deterring requests from
any immigrants based on their financial or family situation or to block
individuals from accessing immigrant benefits. With limited exceptions
as noted in the NPRM and this final rule, DHS establishes its fees at
the level estimated to represent the full cost of providing
adjudication and naturalization services, including the cost of
relevant overhead and similar services provided at no or reduced charge
to asylum applicants or other immigrants. This rule is consistent with
DHS's legal authorities. See INA section 286(m), 8 U.S.C. 1356(m). DHS
proposed changes in fee waiver policies to ensure that those who
benefit from immigration benefits pay their fair share of costs,
consistent with the beneficiary-pays principle as described in the
Government Accountability Office report number GAO-08-386SP.\24\
---------------------------------------------------------------------------

\24\ GAO, Federal User Fees: A Design Guide (May 29, 2008),
available at https://www.gao.gov/products/GAO-08-386SP. (last
accessed Feb. 24, 2020).
---------------------------------------------------------------------------

In certain instances, DHS deviates from the beneficiary-pays
principle to establish fees that do not represent the estimated full
cost of adjudication. For example, DHS proposed a $50 fee for Form I-
589, Application for Asylum and for Withholding of Removal, when filed
with USCIS. This fee deviates from the beneficiary-pays principle by
holding the fee well below the estimated

[[Page 46796]]

cost of adjudication. The $50 fee for affirmative asylum filings is not
intended to recover the estimated full cost of adjudication. Instead,
it is intended to limit the increase of other fees that must otherwise
be raised to cover the estimated full cost of adjudicating asylum
applications. Fee adjustments are not intended to advance any policy
objectives related to influencing the race or nationality of
immigrants, deterring immigration and naturalization, or affecting
voting.
DHS adjusts the USCIS fee schedule in this final rule to provide
for recovery of the estimated full cost of immigration adjudication and
naturalization services. DHS notes that the fees are the same for all
people who submit benefit requests regardless of their physical,
cultural, or individual characteristics. The commenters state that DHS
has discriminatory intent or pretext for this rulemaking, but they
provide no evidence to support that statement. DHS has complied with
all relevant legal and statutory authorities, including the Immigration
and Nationality Act (INA) and the Administrative Procedure Act (APA).
DHS rejects the claim that its justifications for adjusting the fees
are pretextual or intended to obscure its true intent, or that
nefarious reasons like voter suppression and racial animus are behind
the fee adjustments, and DHS declines to make any changes in this final
rule on these bases.
2. Other General Opposition
Comment: Many commenters expressed general opposition to the
proposed increase in USCIS fees. Commenters stated:
USCIS should find a way to increase its margins without
causing detriment to the populations it serves.
The NPRM was not justifiable and USCIS should increase its
own efficiency instead of charging more and providing less service.
The rule's objectives are pretextual, and its goal of
fully recovering costs is undermined by the series of USCIS policies
and practices that increase the agency's costs and inefficiencies.
USCIS fails to describe alternatives to those policies and practices in
the proposed rule.
USCIS should not increase fees when it has inefficiencies
such as performing three different background and biological checks on
a single applicant.
USCIS policy failings and inefficient resource allocation
are creating the need for increased fees. Commenters provided examples
such as the following:
[cir] Failure to revise policies to keep costs within current fees;
[cir] Failure to hire and train already budgeted staff;
[cir] Extensive and frivolous use of a Request for Evidence (RFE)
and Notice of Intent to Deny (NOID);
[cir] ``Extreme vetting'';
[cir] Lengthy suspension of longstanding premium processing
services for certain applications;
[cir] The current lockbox system;
[cir] Increased and unnecessary in-person interviews;
[cir] Ramped up denaturalization efforts;
[cir] Resources spent litigating improperly denied applications;
and
[cir] Actions that increased appeals and motions.
Many of these commenters said the NPRM does not account for agency
inefficiencies resulting from these policies or how increased revenue
would mitigate them and that USCIS should end them before seeking
additional fees from applicants.
After listing several policy changes leading to USCIS
inefficiencies, one commenter said these policies and requiring fee
increases would, in key respects, transfer the costs of the agency's
own inefficiencies to the public. The commenter also wrote that the
NPRM suggests that the agency could expand implementation of at least
some of these ``misguided measures.'' The commenter concluded that it
is therefore unsurprising that the NPRM fails to provide any meaningful
evidence that the changes it proposes would relieve case processing
delays or otherwise improve agency performance; rather, the proposed
rule assumes that lengthy delays will persist.
Response: DHS will continue to explore efficiencies that improve
USCIS services. DHS may incorporate corresponding cost savings into
future biennial fee reviews and rulemakings accordingly. Nevertheless,
USCIS must recover the estimated full cost of providing immigration
adjudication and naturalization services, including services provided
at no or reduced charge to asylum applicants and other immigrants. DHS
declines to make changes in this final rule in response to these
comments.
Comment: Several commenters suggested tax solutions instead of fee
increases. One commenter stated that because they were an American, the
U.S. government should raise the commenter's taxes instead of raising
fees for citizenship applications. Another commenter suggested that the
U.S. government should tax large corporations to fund public services.
One commenter opposed the regulation for three reasons: The department
managers should be requesting additional funding from Congress to meet
legal requirements, reimbursements between USCIS and DHS ``are not to
be addressed directly by the users of services required to be provided
by the executive branch,'' and the executive branch is required to
provide certain services regardless of cost.
Response: DHS has no opinion on whether Congress should pass any
new laws to address fees for adjudication and naturalization services.
However, DHS reiterates that this final rule complies with current
laws. Consistent with DHS' statutory authority, user fees are the
primary source of funding for USCIS. See INA section 286(m), 8 U.S.C.
1356(m). This final rule adjusts those user fees to provide for full
cost recovery to USCIS. DHS declines to make changes in this final rule
in response to these comments.
Comment: One commenter stated that new administrative procedures
instituted in the last 3 years serve as barriers to naturalization and
immigration rather than as security precautions.
Response: Under the law, DHS must fund USCIS operations, including
the vetting of individuals who want to enter the United States, using
fees. The security screening, background checks, and interviews are all
vitally necessary to ensuring that bad actors do not exploit the legal
immigration system to enter the United States and undertake actions
that harm citizens and conflict with our national values. USCIS must
carry out those functions as part of the vetting process and these
functions are funded by fees.
Comment: Some commenters said that USCIS should maintain the
current fee schedule as-is and revisit the issue after further review
of the efficiency and effectiveness of current policies, or possible
review of the U.S. system of immigration policy by future terms of
Congress.
Response: In its FY 2019/2020 fee review, USCIS estimated that
there is a gap of more than $1 billion annually between the revenue
collections projected under the previous fee schedule and the resources
USCIS needs to meet its operational needs to address incoming
workloads. Therefore, if DHS did not adjust fees in this final rule,
USCIS' pending caseload would likely continue to grow and applicants
and petitioners would experience longer processing times. DHS declines
to adopt the commenter's suggestion in this final rule.

[[Page 46797]]

3. Proposed Fees Are Unconstitutional \25\
---------------------------------------------------------------------------

\25\ For constitutional claims against the $50 asylum fee see
the General Comments on the Asylum Fee section of this preamble.
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Comment: Several commenters wrote that the proposed USCIS fee rule
violates one or more provisions of the United States Constitution.
These comments are summarized as follows:
By removing fee waivers for most categories of cases,
USCIS is conditioning fundamental rights, such as the ability to vote,
on the ability to pay, engaging in discrimination prohibited by the
Constitution because it affects one race more than another, and using
the ``beneficiary pays'' principle as a pretextual argument to conceal
an intent to discriminate against racial minorities.
Raising the citizenship application fee to over $1,000 is
like imposing a ``poll'' tax on future voters, which is outlawed by the
24th amendment to the U.S. Constitution.
Naturalization is an especially important immigration
benefit, as it is the only one referenced in the Constitution.
Depriving low-income immigrants of their due process
rights through significant economic obstacles to immigration benefits
is contrary to the Equal Protection Clause of the 14th Amendment.\26\
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\26\ The commenter likely meant the equal protection component
of the Fifth Amendment Due Process Clause.
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The intent of the rule is unconstitutional because it is
intended to directly exclude individuals based on their economic class.
Response: DHS is not adjusting the USCIS fee schedule with any
undisclosed motivation or intent other than to recover the estimate
full cost of adjudication and naturalization services. The new fees are
not insubstantial, but DHS disagrees with the commenters' assertions
that the fees in this final rule will have an effect on the economic
class or number of applicants. DHS has no data that would indicate that
the populations noted by the commenters will be precluded from
submitting benefit requests. As stated in other parts of this final
rule, DHS must study the adequacy of its fee schedule biennially. If
this final rule results in a significant reduction in the number of
requests submitted for immigration benefits, DHS can adjust to address
that result in a future fee rule. Therefore, DHS does not agree that
the new fees violate the U.S. Constitution.
4. Rule Will Have Negative Effects on Applicants
Comment: Many commenters wrote that the NPRM, including the fee
schedule and limited fee waivers, would have negative effects on
applicants, including the following:
Impede legal immigration;
Block low-income immigrants from achieving citizenship and
the associated benefits;
Disproportionately impact Asian immigrants and Asian
Americans;
Encourage illegal immigration;
Prevent immigrants from being contributing members of
society;
Cause immigrants to rely on public assistance;
Make it difficult to become documented;
Cost DHS more money for deportations;
Prevent nonimmigrants and their families from accessing
the American Dream;
Make it difficult for immigrants to make a better life for
themselves and their families;
Make it more difficult for immigrant residents in South
Carolina to maintain lawful status, secure work authorization, and
provide support for their families;
Make it more difficult for people to immigrate and for
lawyers to obtain clients;
Dissuade citizens and lawful permanent residents (LPRs)
from bringing their family members to the U.S and family support is a
relevant factor in economic mobility;
Promote ``healthcare avoidance'' and exacerbate medical
needs when immigrants finally emerge in care systems, resulting in
increased costs for the health and human services sectors;
Cause significant negative effects on Latino immigrants;
Punish immigrants who did their utmost to obey immigration
laws;
Adversely impact populations already much less likely to
apply for and obtain naturalization, such as survivors of domestic
violence, sexual assault, and human trafficking. Further discouraging
naturalization among these populations would harm their chances of
reuniting with family through immediate relative petitions and
undermine applicants' sense of security in the United States.
The fee increases making naturalization less accessible
for low-income immigrants would yield poor health outcomes among
children.
The proposal, along with other policies, serves to disrupt
access to programs that address social determinants of health and
contribute to individuals' and families' well-being.
Response: DHS is unable to quantify how many people will not apply
because they do not have access to fee waivers and we acknowledge that
some individuals will need to save, borrow, or use a credit card in
order to pay fees because they may not receive a fee waiver. DHS also
recognizes that if individuals borrow or use a credit card, they are
likely also responsible for the filing fee, and any additional interest
cost accruing on the loan or credit card. DHS does not know the price
elasticity of demand for immigration benefits, nor does DHS know the
level at which the fee increases become too high for applicants/
petitioners to apply. However, DHS disagrees that the fees will result
in the negative effects the commenters' suggested. DHS believes that
immigration to the United States remains attractive to millions of
individuals around the world and that its benefits continue to outweigh
the costs noted by the commenters. Therefore, DHS believes the price
elasticity for immigration services is inelastic and increases in price
will have no impact on the demand for these services. This is true for
all immigration services impacted by this rule. DHS also does not
believe that the NPRM is in any way discriminatory in its application
and effect. Therefore, DHS declines to make changes in this final rule
in response to these comments.
5. Rule Will Have Negative Effects on the Economy and Employers
Comment: Multiple commenters stated that the NPRM would have
negative direct and indirect impacts on local, state, regional and the
United States' economy, as well as businesses and employers. These
comments are summarized as follows:
Immigrants provide crucial labor in agriculture,
construction, healthcare, hospitality, and other industries, and they
need an ample workforce from which to draw.
Lawful permanent residents becoming citizens is important
to the economy of the United States, and those positive economic
impacts reach across generations.
Immigrants can contribute more to the economy with access
to legal documentation.
Higher fees affect lower-skilled laborers who are in
demand in several industries. Immigrants are key contributors to the
U.S. labor force and the proposed fee change would impede immigration
to the detriment of the labor force.

[[Page 46798]]

The rule could cost the United States potential future
taxpayers. This impact could result in a long-term economic loss.
Immigrants are the backbone of industry and the economy,
often responsible for significant job creation and innovation.
An increase in fees will negatively affect U.S. companies
that pay immigration fees on behalf of their employees.
The proposed fee increases will result in the decrease of
immigration applications, negatively affecting the government.
The increased fees will create a financial barrier to
protection from deportation and work authorization, thus making it more
expensive to participate on the U.S. economy.
Immigrants will be the primary source of future U.S. labor
growth. Limiting working class immigration is contrary to the interests
of the U.S. society and economy. Similarly, naturalization boosts
American democracy, economy, and diversity.
Increased fees will negatively affect the U.S. workforce
because employees who may be eligible to naturalize will no longer have
access to naturalization.
The fees would be detrimental to immigrant students'
success and the nation's economic prosperity.
Improved immigration status allows low-income immigrants
to rise out of poverty and contribute economically to their communities
with access to better jobs and opportunities.
The rule will damage regional and national economies by
stymieing immigration and the benefits that flow from it.
The proposed rule would have a negative ripple effect on
U.S. citizens because of the economic benefits derived from immigrants.
These changes would not only impact individual applicants
who may be unable to work due to delays in their pursuit of work
authorization, but also family members and employers who may have to
lay off valuable employees.
Immigrant communities in rural areas with high levels of
poverty live paycheck to paycheck and the proposed fee increases would
make immigration benefits less accessible to working-class and
vulnerable individuals.
Raising fees would undermine the jobs and wages of
domestic workers with limited education performing low-skill jobs.
The proposed rule would increase unemployment among
immigrant workers.
The proposed fee increases and the revocation of fee
waivers would increase economic and administrative burdens on State and
local government workforces.
The destabilizing effects of barriers to naturalization
would create undue financial burdens on municipalities that outweigh
any stated benefits of the proposal.
Immigrant entrepreneurs and small business owners generate
``tens of billions of dollars'' in business revenue.
Immigrants make important contributions in research and
science. Four of eight Nobel Prize Laureates from the United States in
2019 were foreign born and 34 percent of all Nobel Prize Laureates from
the United States were immigrants.
Scientific discovery is dependent on the ability to travel
freely and the rule would limit the ability of scholars to study and
work in the United States.
The proposal would adversely impact the direct care and
nursing home industries' abilities to hire and retain sufficient staff.
These industries are increasingly reliant on immigrants to staff
positions.
The H-2A program provides the citrus industry with
reliable foreign labor. The cost increase for H-2A petitions was
excessive and other cost in the industry were also increasing.
The increased fees, coupled with restrictions to fee
waivers, would result in many fewer residents accessing a desired
immigration status for which they are eligible simply because they
cannot afford to apply.
Impeding an individual's ability to achieve a secure
immigration status because of poverty is unacceptable and
unconscionable.
Response: DHS knows that immigrants make significant contributions
to the U.S. economy, and this final rule is in no way intended to
impede or limit legal immigration. DHS's rule in no way is intended to
reduce, limit, or preclude immigration for any specific immigration
benefit request, population, industry, or group. DHS agrees that
immigrants are an important source of labor in the United States and
contribute to the economy. DHS does not have data that would indicate
that the fees in this rule would make a U.S. employer that is unable to
find a worker in the United States forego filling a vacant position
rather than submitting a petition for a foreign worker with USCIS. DHS
saw no or limited decreases in the number of benefit requests submitted
after its fee adjustments in 2007, 2010, and 2016 and has no data that
would indicate that the fees for family based benefit requests, lawful
permanent residence, and naturalization in this final rule would
prevent applicants from being filed. DHS agrees that immigrants are
crucial for agriculture, construction, healthcare, hospitality, almost
all industries, immigrants are a source of future U.S. labor growth,
many immigrants are successful entrepreneurs, and that welcoming new
citizens helps the U.S. economy. DHS acknowledges in its analyses
accompanying this rule that the higher fees must be paid by U.S.
companies that hire foreign nationals, but DHS has no data that
indicates that higher fees will affect the supply of lower-skilled
laborers, impede immigration to the detriment of the labor force,
result in aliens being unable to work, cause employers to lay off
employees, undermine the jobs and wages of domestic workers with
limited education performing low-skill jobs, or increase unemployment
among immigrant workers. DHS knows that immigrants make important
contributions in research, science, and we have no data that supports
the assertion that the increased fees and restrictions on fee waivers
would result in many fewer residents accessing a desired immigration
status for which they are eligible simply because they cannot afford to
apply.
Comment: A commenter requested that DHS more thoroughly analyze the
costs of impeding access to naturalization, which include long-term
reduced economic and social mobility for affected populations.
Response: DHS recognizes the contributions that naturalized
citizens make to American society. However, USCIS must fund itself
through fees unless DHS receives a Congressional appropriation to do
so. DHS does not have any data to establish that these fees, though
required, are a significant impediment to naturalization or economic
and social mobility. DHS saw no or limited decreases in the number of
benefit requests submitted after its fee adjustments in 2007, 2010, and
2016 (e.g. N-400 filing volumes grew from less than 600,000 in FY 2009
to approximately 750,000 in FY 2011; similarly, N-400 filing volumes
grew from less than 800,000 in FY 2015 to nearly 1 million in FY 2017).
In an effort to apply fees more equitably to the beneficiary of each
benefit request, DHS must increase the fee for Form N-400, Application
for Naturalization, in this final rule. As stated in the proposed rule
and elsewhere in this final rule, DHS performs a biennial review of the
fees collected by USCIS and may recommend changes to future fees. DHS
declines to conduct further analysis on

[[Page 46799]]

this issue or make changes in this final rule in response to this
comment.
Comment: Many commenters wrote about the benefits of
naturalization, the effect of naturalization on the economy and how the
current application fee and proposed fee discourages naturalization.
These comments are summarized as follows:
Immigrants contribute to the economy by paying taxes, and
they should have easy access to naturalization.
Naturalization increases support for American political
institutions, workforce diversity, strengthens employee productivity
and retention, and creates well-informed community members.
Raising fees for naturalization could discourage
immigrants from seeking citizenship, negatively affecting the economy.
Naturalization is a key driver in allowing immigrants to
fully integrate into our society, economically contribute to the U.S.
economy.
Everyone benefits from residents naturalizing.
Naturalization increases net taxable income, GDP,
individual earnings, employment rates, homeownership, federal, state,
and city tax revenues, and higher education, etc.
Naturalization decreases government benefit expenditures.
Citizenship promotes social benefits, higher rates of
health insurance, English proficiency, quality of employment, and buy-
in to U.S. democratic principles.
Naturalization increases engagement in civic life.
The proposal would increase profits for private companies
that benefit from financial obstacles to naturalization.
In its proposal, DHS incorrectly stated that
naturalization applicants will find some way to come up with the fee
and failed to prove that the proposal would not shrink revenues due to
a reduction in submitted applications.
The proposed fee increases would place citizenship and the
``American dream'' out of reach for many immigrants.
Costs associated with naturalization were already
prohibitively high and DHS should refrain from any efforts to make
naturalization and other immigration benefits even less accessible.
Research from the Journal on Migration and Human Security
that found there were approximately 9 million LPRs eligible to
naturalize and the proposed naturalization fee increase would make
naturalization unaffordable for low-income and working-class people.
The Immigrant Legal Resource Center and Stanford
University's Immigration Policy Lab study demonstrates current fee
levels already prevent a considerable share of low-income immigrants
from applying for citizenship, as well as a 40 percent increase in
application rates when low-income immigrants are given vouchers to
cover application fee costs.
Compliance with immigration and naturalized citizenship
laws was already an ``arduous and risky'' process and USCIS should
estimate the impact on compliance for immigrants seeking to follow such
laws.
USCIS should implement a system to account for individuals
who cannot afford to comply with immigration and citizenship laws due
to the proposed fee increases.
An analysis from the American Immigration Council shows
that the cost of citizenship has become a systemic barrier and the
proposal would raise naturalization fees even higher.
An analysis from the Center for Migration Studies that
found 39 percent of those eligible for naturalization live in
households with incomes below 150 percent of Federal Poverty Guidelines
(FPG) and the proposal would price out naturalization-eligible
individuals from pursuing citizenship to the detriment of their
families and communities.
A hypothetical family of four would have to pay an
additional $3,115 over a 3-year period to maintain their status and
secure citizenship.
The ``road to naturalization eligibility may be lengthy,
unpredictable and costly,'' and the proposed fee increases and changes
to fee waiver eligibility would impact immigrants who must file
concurrent applications for spousal petitions, work authorizations, and
adjustment of status. These changes would cost $4,680 over a 4-year
period, an amount the commenter described as ``prohibitive.''
Existing costs for immigration benefits already pose
challenges for immigrant families and DHS should not increase fees by
such an unprecedented amount.
Response: DHS recognizes the economic and societal value of
nonimmigrants, immigration, and naturalization. DHS agrees that new
citizens and naturalization are of tremendous economic and societal
value and generally agrees with the points made by, and the studies
cited by, commenters. DHS is not adjusting the USCIS fee schedule with
an intent to impede, reduce, limit, or preclude naturalization and did
not propose to adjust the USCIS fee schedule to reduce, limit, or
preclude immigration in any way for any specific immigration benefit
request, population, industry or group, including members of the
working class. However, DHS must adjust the USCIS fee schedule to
recover the full cost of providing immigration adjudication and
naturalization services. While fully aware of the benefits that
immigrants provide to society, DHS must fund USCIS with fees unless DHS
receives a Congressional appropriation to do so.
DHS acknowledges that the fee for Form N-400, Application for
Naturalization is increasing by a greater percentage than the total
increase in USCIS costs and the average increase in fees generally. The
fee for this form is increasing more than for most other forms because
DHS has historically held the fee for Form N-400, Application for
Naturalization, below the estimated cost to USCIS of adjudicating the
form in recognition of the social value of citizenship. Immigration
services provide varying levels of social benefit, and previously DHS
accounted for some aspect of the social benefit of specific services
through holding fees below their cost. However, in this final rule DHS
is emphasizing the beneficiary-pays principle of user fees. This
approach means that the fee for Form N-400 will now represent the
estimated full cost to USCIS of adjudicating the form, plus a
proportional share of overhead costs and the costs of providing similar
services at reduced or no charge to asylum applicants and other
immigrants. In other words, the fee for Form N-400 will now be
determined in the same manner as most other USCIS fees. Because DHS has
held the fee for Form N-400 below full cost in the past, adjusting to
full cost requires an increase in excess of the volume-weighted average
increase of 20 percent. If DHS did not increase the fee for Form N-400
this amount, other fees would need to increase further to generate the
revenue necessary to recover full cost, including the costs of the N-
400 not covered by its fee. DHS believes the increase in the fee for
Form N-400 is fully justified. Finally, DHS does not believe the new
Form N-400 fee will deter naturalization or that the new fees
established in this final rule will prevent immigrants from receiving
immigration benefits. DHS saw no or limited decreases in the number of
benefit requests submitted after its fee adjustments in 2007, 2010, and
2016 (e.g. N-400 filing volumes grew from less than 600,000 in FY 2009
to approximately 750,000 in FY 2011; similarly, N-400 filing volumes
grew

[[Page 46800]]

from less than 800,000 in FY 2015 to nearly 1 million in FY 2017).
Therefore, DHS declines to make any changes in this final rule in
response to this comment.
Comment: One commenter stated that the higher fees would result in
fewer clients for their advocacy organization. As a result, the group
might have to let go of some staff. Another commenter wrote that the
proposal would harm its city's efforts to create a welcoming
environment for immigrants. The commenter described programs like
Citizenship Day in Boston intended to make immigration legal services
more accessible and said the proposal would undermine these efforts.
The proposed fee changes and elimination of fee waivers would harm
agencies that carry out the DOJ's Office of Legal Access Programs
mission as those agencies would lose clients as naturalization and
other applications become less affordable, resulting in a reduction of
funding and potential staff layoffs. The commenter also said these
agencies would need to change their informational and educational
materials if the proposed rule is implemented, resulting in increased
design, printing, and distribution costs.
A commenter stated that while it does not provide direct social or
legal services, it frequently fields questions from transgender
individuals and their family members, attorneys, and other
organizations about government policies and individuals' legal rights,
including questions about immigration. The commenter wrote that if the
proposed rule is adopted, it will need to expend considerable resources
to comprehend and explain changes to the public and will see an
increase in requests for information. The commenter said USCIS should
also consider the impact of the proposed rule on organizations like
theirs, and on organizations that provide direct services to immigrants
applying for immigration benefits.
A commenter said the proposal would harm its organization's mission
and ability to sustain itself financially. The commenter said 90
percent of its funding comes from the State of Washington's allocation
for the Washington New Americans Program and is tied to certain
contractual obligations, including that the organization complete 1,000
naturalization applications, host various workshop events, and screen
around 2,000 green card holders for eligibility each year, among other
conditions. The commenter said its ability to meet these numbers and
its success rate would be adversely impacted if the proposed fee
increases and elimination of fee waivers become finalized. One
commenter wrote that the proposal would present challenges for non-
profit organizations providing legal assistance to low-income
immigrants because it would reduce the number of clients who connect
with services for which they are eligible, and would require increased
outreach by an already overworked staff.
Another commenter wrote that the proposal would interfere with
state and local non-profit programs that provide services to help
individuals navigate the immigration process. The commenter said that
if the proposal is implemented, such programs in Washington State
anticipate that the increased demand for fee reimbursement will outpace
other services. The commenter wrote that many organizations providing
immigration services are dependent on reasonable application fees and
would be at risk of disappearing if fees increase above current levels.
Another commenter said the proposal would interfere with its
organizational mission and would hamper the work done by other non-
profit entities serving immigrant communities. The commenter wrote that
its organization is funded primarily by city and state grants, with
specific funding attached to specific numbers of low-income immigrants
served and that the proposal would undermine its ability to meet grant
requirements. The commenter said in the previous year, it had processed
hundreds of applications that it would not have been able to file under
the proposed removal of fee waivers for certain application types. Many
commenters wrote that the proposed fee increases would deter immigrants
from using qualified legal services, an outcome that the commenters
stated would complicate USCIS processing. The commenter said that if
these actors are left unchecked, they will end up diverting thousands
of dollars away from the agency.
Commenters said the proposed fee increases and elimination of fee
waivers would disrupt organizations that provide legal assistance and
other services to immigrants because of a reduction in the number of
clients served, an inability to meet contractual requirements, and loss
of financial support through contracts or grants. One commenter said
their city partners with immigration legal service organizations to
help immigrants secure needed benefits because income-based barriers to
such benefits already exist. One commenter said their office assists
1,000 constituents annually who already face burdens navigating the
immigration system.
Some commenters suggested that because the fee increases will
discourage many immigrants from utilizing qualified legal assistance to
assist with applications, USCIS will encounter challenges and
inefficiencies in processing due to less complete or less accurate
applications being filed. Other commenters wrote that the proposal
would increase the prevalence of ``notario'' fraud and other types of
consumer fraud against immigrants, who would be more likely to turn to
dishonest providers of legal and other assistance due to the proposed
fee increases. Another commenter agreed that the fee increases would
decrease immigrants' ability to afford counsel, and referred to a 2014
study from Stanford Law School that found detained immigrants were
three times more likely to win deportation cases when they were
assisted by attorneys. The commenter also cited research from the New
York Immigrant Family Unity Project from November 2017 that
demonstrated for every 12 individuals who received counsel under the
organization's ``universal representation model,'' 11 would have been
deported without access to an attorney. The commenter concluded that
non-profit organizations that are already under-resourced will have to
step in to provide services if immigrants lack income to hire
attorneys. Some commenters suggested that the proposed rule would not
only impact immigrant populations, but also legal aid organizations
providing services to such populations and students who benefit from
programs and clinics designed to support low-income populations.
Response: DHS recognizes the value of the various groups that
assist individuals navigate its regulations and forms. However, USCIS
strives to develop rules and forms that are user-friendly, can be
easily completed by the public, and require no legal or professional
assistance. As stated before, DHS is changing USCIS fees to recover the
costs of administering its adjudication and naturalization services.
DHS is not changing USCIS fees with the intent to deter requests from
low-income immigrants seeking family unity or deterring requests from
any immigrants based on their financial or family situation. Previous
fee adjustments had no discernible effect on the number of benefit
requests filed. This final rule amends fee waiver requirements and
divides the Form I-129 into multiple forms, but otherwise makes no
major changes to any immigration benefit requests. DHS will continue to
explore efficiencies that

[[Page 46801]]

improve USCIS services. DHS may incorporate corresponding cost savings
into future biennial fee reviews and rulemakings accordingly.
Therefore, DHS declines to make any changes in this final rule as a
result of these comments.
Comment: One commenter cited a Bureau of Labor Statistics study
(2017-2018), which indicates that the unemployment rate for foreign-
born men (3.0 percent) was smaller than the unemployment rate for
native-born men (4.2 percent), as a benefit to the United States.
Response: DHS appreciates the comment and agrees that foreign-born
workers are dependable employees who are important to the U.S. economy.
6. Comments on the DACA Renewal Fee
Comment: Many commenters generally opposed higher DACA fees.
Commenters stated:
Current DACA fees are high and an increase to renewal fees
would make it difficult for people to afford legal immigration
processes.
It would be unjust to charge students and families to pay
more to maintain DACA.
Many DACA recipients are in school, early in their
careers, or have young children, and therefore cannot afford the fee
increases.
DACA fees would make it difficult for individuals to renew
their work permits and they could lose the ability to work legally in
the United States. The proposed fee increase would cause emotional and
financial hardships for the families of DACA recipients.
DACA fees will suppress/undermine the DACA policy while
legal status is undetermined.
The DACA renewal fee will discourage DACA recipients from
seeking citizenship.
High fees are the reason only 800,000 of the 1.3 million
DACA-qualified individuals have requested DACA.
The fee increases will reduce the number of DACA
recipients who are able to renew their deferred action and complete
higher education. DACA recipients often live paycheck-to-paycheck and
must support family members financially. The renewal fees already
present a burden and the proposed increase would exacerbate the
hardship.
DACA is a prerequisite for in-state tuition in many
states, and increased fees would cause many DACA recipients to lose
their DACA and give up their pursuit of higher education.
DACA has been instrumental in helping many recipients
access better educational and professional opportunities and better
support their families.
Many DACA recipients have lived in the United States since
early childhood, and this rule would place them in danger of removal
from the only country they consider home.
DACA recipients have, in some cases, shown to be dedicated
to serving their communities through Teach For America.
Without the contributions of DACA recipients the United
States would lose $433.3 billion in GDP and $24.6 billion in Social
Security and Medicare contributions.
DACA renewals should be funded by increased taxes rather
than by placing the burden on DACA requestors, who are vulnerable.
USCIS needs to offer justification for increasing DACA
fees from an economic standpoint.
Response: In light of the concerns raised by commenters, as well as
the recent Supreme Court Decision in DHS et al v. Regents of the Univ.
of Cal. et al, No. 18-587 (S.Ct. June 18, 2020), DHS will not impose a
fee for Form I-821D. Therefore, there is no fee for Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, in this final
rule, and USCIS will not receive revenue from Form I-821D. DHS has
removed the estimated costs and staff directly attributable to the DACA
policy from its cost baseline used in its fee calculations for this
final rule, consistent with past practice. See 81 FR 26903, 26914 (May
4, 2016) (explaining that USCIS excludes from the fee calculation model
the costs and revenue associated with programs and policies that are
temporary in nature such as DACA). In this final rule, DHS adjusts
other fees to recover the anticipated overhead and cost reallocation
that the NPRM associated with DACA fees, including Forms I-765 and I-
821D.
In light of the recent Supreme Court ruling and attendant changes
to DHS' operations relating to the DACA policy DHS will maintain the
DACA fees as in effect before the rescission on September 5, 2017 at
$410 for employment authorization and $85 for biometric services. New 8
CFR 106.2(a)(32)(vi).

D. Comments on Legal Adequacy of the Rule

Comment: Multiple commenters stated that the rule was arbitrary and
capricious, contrary to law, and in violation of the Administrative
Procedure Act for various reasons, summarized as follows:
The fee increase is excessive particularly for
naturalization and adjustment of status.
Fee increases will frustrate the substantive policies
promoted in the INA.
The proposal was a pretext for decreasing legal
immigration.
The fee of $2,000 to change the status of a single family
member is a thinly veiled effort to bring the recently enjoined public
charge regulations and health insurance proclamation to life and
circumvent the judicial injunctions on that rule.
In emphasizing the beneficiary-pays principle, the rule
abandons prior motivations to tailor fees based on users' ability to
pay. The 2008 Government Accountability Office (GAO) report to Congress
entitled, Federal User Fees: A Design Guide, undermines USCIS' sudden
switch to the beneficiary-pays principle, and USCIS has elevated the
beneficiary-pays principle as a pretext for restricting and deterring
legal immigration against the will of Congress.
The rule's objectives are pretextual, and its goal of
fully recovering costs is undermined by the series of USCIS policies
and practices that increase the agency's costs and inefficiencies.
USCIS fails to describe alternatives to those policies and practices in
the proposed rule.
The proposed rule fails to determine a social good that
results from equity among application fees, with no evidence, data, or
rational connection between that good and the stated goal of equity.
The agency failed to adequately describe the terms or
substance of the proposed rule in accordance with APA.
The NPRM's rationale and fee increases are arbitrary
because the amount of revenue that would be generated is much bigger
than the projected shortfall at USCIS and some fees would increase more
than others.
Not all fees are being changed proportionally or
rationally, and some fee decreases and increases appear completely
arbitrary and do not align with the agency's reasoning.
The rule lacks a detailed description of how or why the
costs of adjudication have increased so dramatically as to necessitate
such a large fee increase.
The rule cites to INA section 286(m) multiple times for
the Congressional mandate that authorizes the DHS to charge fees ``at a
level that will recover the full costs of adjudication,'' but fee
increases should be supported with details of what those ``costs''
actually

[[Page 46802]]

are, and they should be itemized in a way that clearly justifies the
price.
The public has the right to know the specific details of
the projected budget shortfall and how proposed fee changes would be
allocated to meet the projected deficit.
Some fee increases were larger than others.
It is arbitrary to eliminate fee caps for some but not all
categories, and the rationale provided for not limiting fee increases
for some benefit requests is inadequate. If limited fee increases were
continued for all previously limited requests some proposed fees could
increase by as much as $1,185 with the average of those changes being
an increase of $12 per immigration benefit request.
The rule contains clear and measurable hypocrisy in that
USCIS claims that prior policy must fall in the face of the agency's
newfound insistence on the ``beneficiary-pays principle,'' but it
violates this principle for certain form types because USCIS proposes
to maintain a 5 percent limit on fee increases without specific
justification for each.
The proposed rule's invocation of the ``beneficiary-pays
principle'' is not made in good faith in that USCIS is still willing to
support subsidies for some users (e.g., adoptive parents and religious
institutions) and even a high premium on others (e.g., ``regional
center'' investment groups).''regional center'' investment groups).
Contrary to DHS's rationales for the rule, increased fees
will not improve USCIS' efficiency or allow the agency to provide
better service to applicants.
Response: INA section 286(m), 8 U.S.C. 1356(m) authorizes DHS to
recover the full cost of providing immigration adjudication and
naturalization services, including the cost of services provided at
reduced or no charge to asylum applicants and other immigrants through
the USCIS fee schedule. This final rule complies with the INA, as DHS
estimated the cost of providing immigration adjudication and
naturalization services over the biennial period and adjusts USCIS' fee
schedule to recover those costs. DHS has explained its rational basis
for adjusting USCIS fees in the proposed rule and this final rule. The
docket and administrative record document the bases for the changes and
show that the fee adjustments in this final rule are not motivated by
any purpose other than those expressly stated in this rulemaking. This
final rule intends to recover the estimated full cost of providing
immigration adjudication and naturalization services and is not a
pretext to implement the Inadmissibility on Public Charge Grounds final
rule, as indicated by a commenter. DHS notes that the Public Charge
final rule was implemented nationwide on February 24, 2020, after the
Supreme Court of the United States stayed the last remaining injunction
on that final rule on February 21, 2020.
This final rule also complies with the APA. DHS issued an NPRM in
the Federal Register on November 14, 2019, and a Supplemental Notice on
December 9, 2019. DHS accepted public comments on the proposed rule
through February 10, 2020. DHS fully considered the issues raised in
the public comments and made some adjustments in response, as detailed
in responses throughout this final rule.
DHS disagrees with commenters' assertions that the fees established
in this final rule are unjustified because the fees differ in amount or
are not being changed ``proportionally.'' In most instances, DHS sets
the fees based on the estimated full cost of providing the relevant
immigration adjudication or naturalization service. Some services cost
USCIS more to provide than others, resulting in fees that differ in
relation to how costly the applicable service is. Furthermore, the
costs to USCIS of providing a given service may evolve over time in a
manner that is different than the cost of providing another service.
Thus, when DHS adjusts the USCIS fee schedule, not all fees are
adjusted ``proportionally.'' For example, as DHS explains in the NPRM
and elsewhere in this rule, DHS determined that it would be appropriate
to limit the fee increase for several forms while not limiting the fee
increase for other forms to reduce the cost burden placed upon other
fee-paying applicants, petitioners, and requestors.
DHS reiterates that this final rule complies with the all current
laws. Therefore, DHS declines to make changes in this final rule in
response to these comments.
Comment: Numerous issues permeate the NPRM and result in such a
vague rule change as to invalidate the entire proposal. The NPRM fails
to disclose the actual weighted average fee increase or fee increases
associated with individual form types and many unrelated changes are
proposed without supporting documentation for each of these proposed
changes. The commenter wrote that other open-ended language in this
proposal also improperly subverts the legal requirements of this notice
process by granting exclusive powers to the Attorney General to set
such fees and fee waiver regulations and create such USCIS forms
without future public notices. The commenter wrote that other open-
ended language in this proposal also improperly subverts the legal
requirements of this notice process by granting exclusive powers to the
Attorney General to set such fees and fee waiver regulations and create
such USCIS forms without future public notices.
Response: DHS has provided sufficient details of the bases for the
fee adjustments in the NPRM, this final rule, and supporting
documentation. As clearly stated earlier, the INA authorizes the use of
fees for funding USCIS. However, the law does not prescribe a method
for USCIS fee setting. As explained in the supporting documentation
that accompanies this final rule, USCIS follows guidance provided by
OMB Circular A-25 and has leveraged an ABC methodology in the last five
fee reviews. USCIS' use of commercially available ABC software to
create financial models has enabled it to align with the Federal
Accounting Standards Advisory Board's (FASAB's) Statement of Federal
Financial Accounting Standards Number 4 on managerial cost accounting
concepts, which provides guidelines for agencies to perform cost
assignments in the following order of preference: (1) Directly tracing
costs wherever feasible and economically practicable; (2) Assigning
costs on a cause-and-effect basis; or (3) Allocating costs on a
reasonable and consistent basis.\27\
---------------------------------------------------------------------------

\27\ FASAB, Statement of Federal Financial Accounting Standards
4, available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf
(last viewed 03/06/2020).
---------------------------------------------------------------------------

USCIS is a worldwide operation of thousands of employees with
myriad responsibilities and functions. The commenter's expectations of
absolute precision are unattainable for setting the fees for such a
large organization that provides a wide range of services and
immigration benefit requests. DHS has provided rational connection to
the law, its needs, policy choices, calculations, and fees established
in this final rule, even if the rational basis may require following
mathematical calculations and defensible estimates.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Some commenters said that the excessive fee increase and
limiting fee waivers would indirectly make wealth a dispositive
requirement for immigration benefits, effectively adopting a ``wealth
test'' for citizenship and similar immigrant benefits that will deter
non-citizens from seeking lawful immigration status in violation of the
INA and which the legislature never

[[Page 46803]]

intended. A commenter said DHS's proposal to eliminate most fee waivers
and exemptions, coupled with dramatic fee hikes for most immigrants,
breaks from decades of executive practice and ignores clear
Congressional intent to create a fair and accessible immigration
system. The commenter said DHS has declined, despite congressional
requests, to consider the effect of eliminating reduced fees on
applicants for naturalization or to maintain fee waivers for such
applicants.
A commenter said USCIS' policy of recovering the full cost of
application processing is a choice, not a legal requirement.
Specifically, the commenter said USCIS cites INA section 286(m), 8
U.S.C. 1356(m) as the basis of its policy, but this section states
merely that the agency ``may be set at a level that will ensure
recovery of the full costs of providing all such services.'' Therefore,
the statute is permissive, not mandatory. The commenter went on to say
that USCIS also cites OMB Circular A-25, but this document is only
policy guidance that lacks the force of law and, by its own terms,
provides for exceptions to this general policy. The commenter also said
that since USCIS has used its discretion to set fees for several forms
at levels that would not recover its full costs, it should go further
in shifting costs away from applications that would help working
immigrant families acquire, maintain, or document lawful status and
citizenship. Similarly, another commenter said USCIS is not required by
law to recover its costs on the backs of applicants, many of whom are
low-income; the relevant section of the INA is permissive, not
mandatory.
A commenter said the proposed rule ignores Congressional intent,
citing a 2018 House Appropriations Committee report (H. Rep. No. 115-
948) and the bipartisan, bicameral conference report accompanying the
omnibus appropriations act for Fiscal Year 2019 (H. Rep. No. 116-9),
both of which stated that ``USCIS is expected to continue the use of
fee waivers for applicants who can demonstrate an inability to pay the
naturalization fee. USCIS is also encouraged to consider whether the
current naturalization fee is a barrier to naturalization for those
earning between 150 percent and 200 percent of the federal poverty
guidelines (FPG), who are not currently eligible for a fee waiver.''
Although the NPRM states that ``USCIS appreciates the concerns of this
recommendation and fully considered it before publishing this proposed
rule,'' the commenter said USCIS provides no evidence that it either
``appreciates'' or ``fully considered'' these directives from Congress.
Instead, the commenter said the agency is eliminating fee waivers and
naturalization fee reductions in direct contravention of Congressional
will. A couple of other commenters also cited the same Congressional
directives, stating that DHS has ignored these directives without
rational explanation.
Another commenter said that, by solely focusing on ``full cost
recovery'' regardless of an immigrant's ability to pay and under the
false pretense of equity, DHS is restricting immigration to only those
who can afford it. The commenter said this is a ``backhanded attempt''
to introduce a merit-based immigration system without legislation. The
commenter said Congress has already shown it does not wish to enact a
merit-based immigration system and the DHS should not be able to go
around the will of Congress. Similarly, another commenter said the
changes serve to circumvent Congressional oversight of the immigration
system by effectively eliminating statutory paths to immigration status
by making them unaffordable and inaccessible to those who qualify.
Another commenter said these fees would effectively impose a means
test for U.S. residence and citizenship, and that these immigration
benefits is of such importance that any related policy should be
determined by Congressional legislation. A commenter said a limit
should be placed on USCIS' ability to raise fees without Congressional
approval, concluding that such policies should only be passed by
Congressional authority.
A commenter said the administration is attempting to reshape
American immigration policy, ignoring Congress' plenary power and
attempting to make the immigration process established by Congress
inaccessible to eligible immigrants. Similarly, another commenter said
USCIS is imposing financial tests cloaked under the rule-making process
to reshape the demographics of the American society by excluding those
who are not wealthy and asylum-seekers who are largely from Central
America, Latin America, Africa, and Asia.
A commenter said the rule would significantly deter family-based
immigration, contrary to Congressional intent. The commenter said that
the effect of the rule will promote employment-based immigration at the
expense of family-based immigration because immigrants who arrive on
employment-based visas are typically well-educated, can speak English
proficiently, have sufficient assets, and have solid employment
prospects. The commenter said the effect of the proposed rule will be
to favor wealthy or higher-skilled immigrants over families, and in
turn reverse over a half century of bedrock immigration policy in the
United States. The commenter concluded that Congress did not delegate
DHS the authority to implement such sweeping reform of our immigration
laws.
Another commenter said Congress needs a clear expenditure plan in
order to monitor if the funds are being used as warranted, which is not
present in the current proposal. Similarly, a commenter said the
proposed fee schedule is inconsistent with statutory framework because
it lacks a valid analysis as to how the proposal might achieve the
policy objectives it ``allegedly would further.''
Response: DHS adjusts the fees for immigration benefit requests in
this final rule to recover the estimated full cost of providing
immigration adjudication and naturalization services, as provided by
law. In adjusting the fees, DHS is not imposing a ``wealth test'' or
otherwise attempting to erect barriers to immigration and rejects any
implication that its justifications for adjusting the fees are pretexts
to obscure any other motivation.
INA section 286(m), 8 U.S.C. 1356(m) authorizes DHS to recover the
full cost of providing immigration adjudication and naturalization
services, including the cost of services provided at no charge to
asylum applicants and other immigrants through the USCIS fee schedule.
This final rule complies with the INA, as DHS estimated the cost of
providing immigration adjudication and naturalization services over the
biennial period and adjusts USCIS' fee schedule to recover those costs.
This final rule also complies with the APA. DHS issued an NPRM in
the Federal Register on November 14, 2019, and a Supplemental notice on
December 9, 2019. DHS accepted public comments on the proposed rule
through February 10, 2020. DHS fully considered the issues raised in
the public comments and made some adjustments in response, as detailed
elsewhere in this final rule. DHS provides responses to those comments
in this final rule.
Comment: One commenter stated that the proposed rule was not ripe
for comment, because DHS did not provide a final, definitive set of
fees but instead provided a range of potential outcomes that were
possible.
Response: DHS disagrees that the proposed rule was not ripe for
comment. DHS provided multiple options for proposed fee schedules and

[[Page 46804]]

explained that the final outcome would be one of the proposed scenarios
or another outcome within the range of the alternatives proposed. The
fee schedule adopted in this final rule falls within the range of
outcomes DHS provided in the NPRM. The policies implemented in this
final rule are identical to, or are logical outgrowths of, those
contained in the NPRM.
The intent of the comment period provided under the APA is to allow
agencies to consider public feedback on proposed rules and make changes
as appropriate. Because a single change made in response to public
comments may affect multiple fees, it is impossible to provide a final
set of fees in an NPRM unless it were to be adopted without any
modification, thereby negating the value of public feedback. Therefore,
the NPRM was fully ripe for public comment, and DHS declines to make
any adjustments in response to this comment.
Comment: Two commenters wrote that the NPRM has no force or effect
because Mr. Wolf does not have a valid legal claim to the office of DHS
Secretary. The commenters detailed the required line of succession
required by Executive Order 13753 after the departure of Secretary
Nielsen, which according to the commenters should not have led to Mr.
McAleenan. The commenters then stated that, even if President Trump
lawfully departed from E.O. 13753 when Mr. McAleenan was designated,
his authority was limited to 210 days under the Vacancies Act, but Mr.
McAleenan purported to serve as Acting Secretary for a year and a half.
The commenters stated that, because Mr. Wolf's appointment to Secretary
was a result of Mr. McAleenan's unlawful amendment to the order of
succession, Mr. Wolf has no valid legal claim to the office of the
Secretary, and the action he has taken in promulgating the proposed
rule shall have ``no force or effect.''
Similarly, other commenters said the rule violates the Appointments
Clause and the Federal Vacancies Reform Act (FVRA) because it was
promulgated under the unlawful authority of Kenneth Cuccinelli. The
commenters detailed the requirements of the FVRA and the succession
line leading to Mr. Cuccinelli's appointment. The commenters concluded
that, since Mr. Cuccinelli has not succeeded to the Acting Director of
USCIS position pursuant to the FVRA, his designation was void, and
thus, the rule that was proposed under his purported authority should
have ``no force or effect'' and its adoption would be unlawful.
Another commenter said it is improper to issue a significant rule
when the authority of DHS and USCIS leadership is in question. The
commenter said the significant changes proposed are egregious when the
agency lacks confirmed leadership to exercise authority pursuant to the
law. The commenter wrote that legal challenges to the authority of
agency leadership are currently pending and a letter from the House
Committee on Homeland Security to the GAO that questions the legality
Chad Wolf's appointment as Acting DHS Secretary and Kenneth
Cuccinelli's appointment as Senior Official Performing the Duties of
the Deputy Secretary. The commenter wrote that the lack of responsible
authorities makes it inappropriate for the agency to make the radical
and untested policy shifts it proposes.
Response: DHS disagrees that Mr. Cuccinelli was unlawfully
appointed in violation of the Appointments Clause or the Federal
Vacancies Reform Act. In any event, it is unnecessary to discuss the
merits of Mr. Cuccinelli's appointment, because the proposed rule only
proposed changes to DHS regulations and requested comments. It did not
effectuate any change that would be amount to a final action taken by
Mr. Cuccinelli or any DHS official. In addition, neither the NPRM nor
this final rule were signed by Mr. Cuccinelli. Thus, while DHS believes
that Mr. Cuccinelli is lawfully performing the duties of the Director
of USCIS and using the title Senior Official Performing the Duties of
Director of USCIS, and the Senior Official Performing the Duties of the
Deputy Secretary of Homeland Security, whether that is true is
immaterial.
The NPRM was signed by Kevin K. McAleenan and this final rule is
signed by Chad F. Wolf, both as Acting Secretary of Homeland Security.
Contrary to the comment, Secretary Wolf is validly acting as Secretary
of Homeland Security. Under INA section 103(a)(1), 8 U.S.C. 1103(a)(1),
the Secretary of Homeland Security is charged with the administration
and enforcement of the INA and all other immigration laws (except for
the powers, functions, and duties of the Secretary of State and
Attorney General). The Secretary is also authorized to delegate his or
her authority to any officer or employee of the agency and to designate
other officers of the Department to serve as Acting Secretary. See 8
U.S.C. 103 and 6 U.S.C. 113(g)(2). The HSA further provides that every
officer of the Department ``shall perform the functions specified by
law for the official's office or prescribed by the Secretary.'' 6
U.S.C. 113(f).
On April 9, 2019, then-Secretary Nielsen, who was Senate confirmed,
used the authority provided by 6 U.S.C. 113(g)(2) to establish the
order of succession for the Secretary of Homeland Security. This change
to the order of succession applied to any vacancy. Exercising the
authority to establish an order of succession for the Department
pursuant to 6 U.S.C. 113(g)(2), superseded the FVRA and the order of
succession found in E.O. 13753.
As a result of this change and pursuant to 6 U.S.C. 113(g)(2), Mr.
McAleenan, who was Senate confirmed as the Commissioner of CBP, was the
next successor and served as Acting Secretary without time limitation.
Acting Secretary McAleenan was the signing official of the proposed
rule. Acting Secretary McAleenan subsequently amended the Secretary's
order of succession pursuant to 6 U.S.C. 113(g)(2), placing the Under
Secretary for Strategy, Policy, and Plans position third in the order
of succession below the positions of the Deputy Secretary and Under
Secretary for Management. Because these positions were vacant when Mr.
McAleenan resigned, Mr. Wolf, as the Senate confirmed Under Secretary
for Strategy, Policy, and Plans, was the next successor and began
serving as the Acting Secretary. Therefore, both the NPRM and this
final rule were lawfully signed by the Acting Secretary of Homeland
Security.
Comment: A commenter opposed the proposal because it would result
in family separation and would run counter to the family-based
immigration system Congress intended to create through the INA. Another
commenter wrote that the proposal conflicts with the principle of
family unity because it interferes with the right to choose to live
with family members and disrupts the INA's goal of family unity.
Response: In adjusting the USCIS fee schedule in this final rule,
DHS complies with all relevant legal authorities. DHS does not intend
to erect barriers to family unity or reunification. This final rule
adjusts the USCIS fee schedule to recover the estimated full cost of
providing immigration adjudication and naturalization services.
DHS declines to adjust this final rule in response to these
comments.
Comment: A commenter wrote that the proposed transfer of $112.3
million in IEFA ICE fees violates the Appropriations Clause of the
Constitution. The commenter wrote that the use of the IEFA to fund any
activities of ICE circumvented the

[[Page 46805]]

Appropriations Clause and other laws that prohibit the transfer of
funds without statutory authorization. Another commenter wrote that
enactment of the FY 2020 appropriations package in December clarified
USCIS' understanding of its Congressional mandate and spending
authority, but that the agency had failed to acknowledge this package
in its January 2020 notice regarding the fee proposal. The commenter
wrote that funding provided by Congress in that bill should have
resolved open questions about the fee schedule, and that USCIS' failure
to propose a fee schedule based on ``no transfer of funding'' in its
January 2020 notice precludes the public from providing fully informed
feedback.
Response: DHS is not moving forward with the proposed transfer of
IEFA funds to ICE in this final rule. Please see the ICE Transfer
Section (Section III.L) of this final rule for more information.
Comment: Multiple commenters requested that DHS extend the public
comment period to 60 days to allow more time to review the proposed
rule and to develop responses. Commenters stated that the length of the
NPRM was greater than that of earlier fee rules, but commenters had
less time to respond to this rule. Multiple commenters suggested that
the timing of the comment period over multiple holidays hindered the
ability of the public to respond to the proposed rule.
Response: DHS understands that the general policy of the Executive
Branch is that agencies should afford the public a meaningful
opportunity to comment on any proposed regulation, which in most cases
should include a comment period of not less than 60 days, for rules
that are determined to be significant by OMB's Office of Information
and Regulatory Affairs (OIRA). See E.O. 12866, Regulatory Planning and
Review, 58 FR 51735 (Oct 4, 1993), Sec. 6(a)(1). (E.O. 12866). However,
circumstances may warrant a shorter comment period and the minimum
required by the APA is 30-days. 5 U.S.C. 553(d). On January 24, 2020,
DHS reopened the comment period for an additional 15-days and accepted
public comments through February 10, 2020. See 85 FR 4243. Thus, the
public was provided a comment period of 61 days to review the NPRM,
revised information collections, supporting documents, other comments,
and the entire docket contents. In addition, comments received between
December 30, 2019, and January 24, 2020, were also considered. As a
result, although in three separate notices, the public was afforded
more time to comment than required by E.O. 12866, the APA, and the
Paperwork Reduction Act (PRA).
Comment: One commenter wrote that USCIS promised to provide public
review of its cost model software; however, it did not provide access
when the commenter reached out to the provided contact. Later, that
same commenter along with several other commenters submitted a comment
that referenced a February 3, 2020, meeting during which USCIS hosted a
demonstration of its ABC cost-modeling software, as promised in the
original proposed rule. A commenter wrote that USCIS gave stakeholders
just one week to write comments on the cost-assignment software before
the end of the comment period. The commenter said USCIS should never
force stakeholders to review and provide a formal response to a complex
financial proposal within the space of just one week, and it should not
impose such an impossible deadline upon analysis of a sophisticated
tool that is the foundation of the rule. A commenter asked why the
public's ability to provide informed comment on the software was
unfairly limited to an in-person demonstration with no phone or online
access, asserting that the process limited the ability of stakeholders
to request and analyze relevant information. Another commenter also
said USCIS' presentation did not allow meaningful public engagement.
Another commenter wrote that none of the information received was made
available to the rest of the public, which the commenter said would
have generated additional important perspectives.
Response: DHS met all requirements under the APA in affording
commenters who requested a meeting with DHS to review the ABC software
the opportunity to provide public comments. The public was offered a
chance to meet with USCIS experts and review the software and every
party who requested an appointment to review the software was provided
an appointment and a review. DHS did not provide additional time beyond
the end of the public comment period for the meeting participants to
provide feedback because doing so would have advantaged the feedback of
those commenters relative to the rest of the public.
DHS declines to make changes in this final rule in response to the
comment.
Comment: A commenter said DHS has not complied with the Treasury
General Appropriations Act by failing to assess whether the proposed
rule strengthens or erodes the stability or safety of the family,
increases or decreases disposable income or poverty of families and
children, and is warranted because the proposed benefits justify the
financial impact on the family.
Response: As stated in the Family Assessment Section of this final
rule (Section IV.H), DHS does not believe that this rulemaking will
have a negative financial impact on families. DHS disagrees with
commenter's assertions about the effects of the proposed fees and does
not agree that the data provided by the commenter indicates that the
fees established in this final rule will affect the financial stability
and safety of immigrant families. As stated elsewhere in response to
similar comments, based on the number of filings received after past
fee increases, DHS does not anticipate that the fees would affect
application levels or that it will create barriers to family
reunification or stymie noncitizens seeking to adjust their status or
naturalize. DHS must have sufficient revenue to operate USCIS or its
service to all people who file immigration benefit requests could
suffer, persons who are not eligible could improperly be approved for a
status, or a person who wants to harm the United States and its
residents may not be properly vetted. Thus, the benefits of the fees
outweigh the costs they impose.

E. Comments on Fee Waivers

Comment: Many commenters, without providing substantive rationale
or supporting data, stated that they oppose the elimination of fee
waivers in the rule. Some commenters stated that fee waivers are a
matter of public policy and reflect American values. The commenters
further stated that the rule would increase dependence on debt to
finance applications, the fees are already difficult to pay, and this
change will allow only affluent individuals and families to immigrate
legally. Commenters indicated that the elimination of almost all fee
waivers would cause a substantial burden and prevent large numbers of
people from accessing immigration relief and submitting a timely
application, and even force applicants to forgo the assistance of
reputable and licensed counsel in order to save money to pay the fees.
Commenters also stated that fee waivers should continue to be
available for low-income individuals and their elimination would result
in financial hardship for immigrant and mixed-status families,
resulting in immigrants delaying or losing immigration status due to
financial considerations. Commenters also discussed the benefits of fee
waivers to immigrants, including helping families to improve their

[[Page 46806]]

stability, to financially support themselves, and to fully integrate
into their communities while allowing them to allocate funds for higher
education. Commenters further stated that fee waivers help families be
secure, stable, and financially stronger, and help them integrate into
their communities. Commenters stated that the proposed fee increases
and elimination of fee waivers would prevent many individuals and
families from engaging with the legal immigration system, including
putting benefits such as naturalization, lawful permanent residence,
and employment authorization out of reach for people who face financial
hardship and low-income individuals by serving as a ``metaphorical
border wall.'' Commentators indicated that fee waivers are commonly
used by low-income and vulnerable immigrants, especially students and
their families, and the rule would leave essential immigration benefits
accessible primarily to the affluent.
A commenter disagreed with USCIS' statement in the NPRM that
changes in fee waiver policy would not impact application volume
because research suggests price increases for naturalization
applications are a significant barrier for lower income noncitizens.
Another commenter provided data from several sources and wrote that
immigrants tend to have higher rates of poverty and that fee waivers
are an important asset for immigrants looking to maintain legal status.
Another commenter stated that fee waivers serve to permit those with an
``inability to pay'' the same opportunity as others and denying access
to fee waivers divides the ``opportunity pool.'' Another commenter
wrote that applicants may, instead of going into debt, have to forego
other expenses such as housing, childcare, transportation, and
healthcare in order to apply. A commenter wrote that the elimination of
fee waivers would force families to forego necessities such as food,
shelter, transportation, education, and healthcare to pay for proof of
lawful status that allows them to work. A commenter wrote that USCIS
eliminating the fee waiver altogether for non-humanitarian applications
directly contradicts USCIS' previous statements regarding the revision
to Form I-912.
Response: To align fee waiver regulations more closely with the
beneficiary-pays principle, DHS proposed to limit fee waivers to
immigration benefit requests for which USCIS is required by law to
consider a fee waiver. See proposed 8 CFR 106.3. DHS acknowledges that
this is a change from its previous approach to fee setting and believes
that these changes will make USCIS' fee schedule more equitable for all
immigration benefit requests by requiring fees to be paid mostly by
those who receive and benefit from the applicable service.
Additionally, DHS believes that making these changes to the fee waiver
policy would ensure that fee-paying applicants do not bear the costs of
fee-waived immigration benefit requests. DHS does not agree that
individuals will be prevented from filing applications or receiving
immigrant benefits.
DHS provided notice in its FY 2016/2017 USCIS fee rule that in the
future it may revisit the USCIS fee waiver guidance with respect to
what constituted inability to pay under the previous regulation, 8 CFR
103.7(c). See U.S. Citizenship and Immigration Services Fee Schedule,
Proposed Rule, 81 FR 26903-26940, 26922 (May 4, 2016). INA section
286(m), 8 U.S.C. 1356(m) authorizes, but does not require, that DHS set
fees to recover the full cost of administering USCIS adjudication and
naturalization services. That statute also authorizes setting such fees
at a level that will recover the costs of services provided without
charge, but it does not require that DHS provide services without
charge.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Several commenters stated that USCIS has neither explained
its significant departure from its prior reasoning and practice nor
satisfactorily justified limiting fee waivers for naturalization and
several other application categories. A commenter stated that the
proposed changes concerning fee waivers represents such a ``massive and
inadequately explained shift in policy'' that it would create a
crippling burden on low-income immigrants compounded with previous
recent fee waiver changes.
Response: DHS understands that the NPRM and this final rule
represent a change from previous guidance on fee waivers. Due to the
cost of fee waivers and inconsistency of current regulations with the
beneficiary-pays principle emphasized in the NPRM and this final rule,
DHS is limiting fee waivers to immigration benefit requests for which
USCIS is required by law to consider a request or where the USCIS
Director exercises favorable discretion as provided in the regulation,
as well as a few other instances. In addition, DHS is allowing fee
waivers for certain associated humanitarian programs including
petitioners and recipients of SIJ classification and those classified
as Special Immigrants based on an approved Form I-360 as an Afghan or
Iraqi Translator or Interpreter, Iraqi National employed by or on
behalf of the U.S. Government, or Afghan National employed by or on
behalf of the U.S. government or employed by the International Security
Assistance Forces. Although these changes do limit the number of people
eligible for fee waivers, as previously discussed, the changes also
limit increases to fees for forms that previously had high rates of fee
waiver use.
Comment: Some commenters provided information specific to a
geographic area or political subdivision. One commenter added that
reductions in fee waivers would in turn cause sweeping consequences to
applicants, safety net programs, and state and county economies. One
commenter wrote that the proposal would significantly harm New York as
a whole because fee waivers allow indigent and low-income immigrants to
obtain lawful status, which puts them on the path to social and
economic security. The commenter cited data showing that New York's
immigrants account for $51.6 billion of the State's tax revenue and
stated that New York would lose much needed support if fewer immigrants
are unable to legally work and live in the United States. Another
commenter cited data showing that immigrant-led households in Oregon
paid $1.7 billion in federal taxes and over $736.6 million in State
taxes and stated that the proposed change would prohibit many of these
immigrant from fully participating in their local economies. Another
commenter calculated the costs a family with an income of 150 percent
of the FPG level would face living in Boston, writing that fee waivers
are vital to such families maintaining their immigration status or
naturalizing.
Response: DHS disagrees that the fee waiver regulations in this
final rule would prohibit immigrants from participating in local and
state economies or affect safety net programs. This final rule does not
prevent any person from submitting a benefit request to USCIS or
prohibit immigrants from obtaining services or benefits from state or
local programs. DHS declines to make changes in this final rule in
response to this comment.
Comment: Another commenter stated that limiting fee waivers would
result in a greater number of applicants delaying submitting
applications due to financial hardship. The commenter wrote that
applicants would therefore live without authorization for which they
are

[[Page 46807]]

lawfully eligible for a longer time period, resulting in negative
impacts to their financial and emotional security.
Response: DHS acknowledges that the changes in the fee waiver
provisions may impose a burden on applicants who may have previously
been eligible for a fee waiver. However, DHS does not have data
indicating that individuals will delay submitting applications and
petitions in response to the fee waiver policy changes. USCIS accepts
credit cards to pay for a USCIS request sent to one of the USCIS
Lockboxes. While DHS acknowledges that the use of a credit card may add
interest expenses to the fee payment, a person can generally use a
debit or credit card to pay their benefit request fee and does not have
to delay their filing until they have saved the entire fee. DHS
declines to make changes in this final rule in response to this
comment.
Comment: A few commenters said that eliminating fee waivers is a
racist attempt to prevent immigration from poorer countries. Commenters
indicated that eliminating fee waivers would be discriminatory against
immigrants who have limited incomes, who are willing to work for
everything they get, want a better life for their children, desire to
improve their communities, and the rule would put immigration benefits
out of reach for people who face financial hardship.
Response: DHS changes to fee waiver availability in this rule have
no basis in race or discriminatory policies. DHS is not limiting fee
waivers to discriminate against any group, nationality, race, or
religion, to reduce the number of immigrants, or limit applications for
naturalization. Rather, the change is to alleviate the increase of fees
for other applicants and petitioners who must bear the cost of fee
waivers as previously discussed. DHS does not anticipate a reduction in
receipt volumes because of the fee waiver policy changes. DHS declines
to make changes in this final rule in response to these comments.
Comment: A few commenters stated that the curtailment of fee
waivers disregards a Senate Appropriations Committees' directive that
USCIS was to ``report on the policies and provide data on the use of
fee waivers for four fiscal years in 90 days,'' which is not provided
in the NPRM.
Response: DHS has previously provided the required reports to
Congress. The Congressional reporting requirements do not include a
limit on USCIS fees or limit the authority of DHS to provide
discretionary fee waiver eligibility criteria or guidelines. They also
do not require publication in the NPRM or the Federal Register as the
commenter implies. Therefore, DHS does not believe this final rule
disregards the directive for reporting to Congress and declines to make
changes in this final rule in response to these comments.
1. Limits on Eligible Immigration Categories and Forms
Comment: Many commenters stated that USCIS should maintain fee
waivers for all current categories and that the proposed fee waiver
changes would make essential benefits such as citizenship, green card
renewal, and employment authorization inaccessible for low-income
immigrants.
Response: DHS has always implemented USCIS fee waivers based on
need and since 2007, has precluded fee waivers for individuals that
have financial means as a requirement for the status or benefit sought.
See Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule; Proposed Rule, 72 FR 4887-4915,
4912 (Feb 1, 2007). As discussed in the NPRM, under the ability-to-pay
principle, those who are more capable of bearing the burden of fees
should pay more for the service than those with less ability to pay.
See 84 FR 62298. IEFA fee exemptions, fee waivers, and reduced fees for
low income households adhere to this principle. Applicants,
petitioners, and requestors who pay a fee cover the cost of processing
requests that are fee-exempt, fee-waived, or fee-reduced. For example,
if only 50 percent of a benefit request workload is fee-paying, then
those who pay the fee will pay approximately twice as much as they
would if everyone paid the fee. By paying twice as much, they pay for
their benefit request and the cost of the same benefit request for
which someone else did not pay.
In prior years, USCIS fees have given significant weight to the
ability-to-pay principle by providing relatively liberal fee waivers
and exemptions and placing the costs of those services on those who
pay. In the FY 2016/2017 fee rule, DHS noted that the estimated annual
dollar value of waived fees and exemptions has increased markedly, from
$191 million in the FY 2010/2011 fee review to $613 million in the FY
2016/2017 fee review. See 81 FR 26922 and 73307. DHS set the fees in
the FY 2016/2017 fee rule based on those estimates of the level of fee
waivers and exemptions by increasing other fees accordingly. To the
extent that waivers and exemptions exceed the estimates used to
calculate fees, USCIS forgoes the revenue. While DHS acknowledges that
the fee adjustments established in this final rule are not
insubstantial to an applicant of limited means, DHS does not believe
that they make immigration benefits inaccessible to low income
applicants. Thus, DHS will not shift the costs from all low-income
applicants to other fee-paying applicants and petitioners in this final
rule.
DHS declines to make changes in this final rule in response to
these comments.
a. Categories or Group of Aliens
Comment: A commenter stated that while USCIS may claim it is not
required to waive any fees for vulnerable applicants such as the
disabled and elderly, federal laws, such as the Americans with
Disabilities Act (ADA) and Rehabilitation Act, do require that fees and
benefits are kept within reach of protected and vulnerable populations.
Response: DHS disagrees with the commenter's assertion. Section 504
of the Rehabilitation Act, applicable to USCIS, provides that qualified
individuals with a disability shall not be excluded from the
participation in, denied the benefits of, or be subjected to
discrimination under any program or activity conducted by a federal
executive agency. USCIS immigration benefit request fees are generally
applicable and do not violate that provision. Congress did not
specifically provide for an immigration benefit request fee exemption
or waiver for individuals with disabilities. DHS generally does not
assess fees to applicants for any accommodations requested by the
applicants for physical access to USCIS facilities when required for
interviews, biometrics submission, or other purposes. Therefore, the
USCIS fee schedule established in this final rule does not violate the
Rehabilitation Act. The ADA does not generally apply to USCIS programs,
but to the extent that it provides guidance on the expectations for a
Federal agency's accommodations for a qualified individual with a
disability, the fees that DHS is establishing in this final rule also
fully comply with the ADA.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Commenters stated that the proposed limits on fee waivers
would threaten disabled immigrants and deny them access to citizenship.
The commenter wrote that disabled lawful permanent residents rely on
Supplemental Security Income (SSI), but that LPRs must naturalize
within 7 years to sustain this benefit. The commenter stated that
removing the naturalization fee waiver would drive

[[Page 46808]]

these disabled LPRs to homelessness and desperation, with negative
societal consequences and no benefit. A commenter added that LPRs with
disabilities lose SSI benefits 7 years after their entry, and, thus,
that the proposed rule could deny members of this population access to
basic necessities. A commenter wrote that citizens are eligible for
SSI, but such benefits are only available to some non-citizens for up
to seven years. The commenter wrote that the increase in naturalization
fees would ``create an insurmountable barrier'' for disabled non-
citizens to naturalize, and thus creates a ``finite timeline'' during
which a non-citizen can receive important needed benefits like SSI.
Response: DHS disagrees that removing the application for
naturalization fee waiver would drive disabled applicants into
homelessness, despair, or deny them access to citizenship. Normally, if
an applicant entered the United States on or after August 22, 1996, he
or she is not eligible for SSI for the first 5 years as a lawfully
admitted permanent resident, unless he or she is a qualified alien, as
provided under the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA).\28\ Some categories of aliens who
are eligible, including asylees and refugee, may be limited to a
maximum of 7 years of SSI. Generally, an alien may apply for
naturalization after 5 years as an LPR. This final rule does not
prohibit eligible aliens from obtaining SSI benefits or naturalizing.
DHS declines to make changes in this final rule in response to these
comments.
---------------------------------------------------------------------------

\28\ See Title IV of Public Law 104-193, 110 Stat. 2105, 2260-77
(Aug 22, 1996). For information on who is a qualified alien see
eligible for SSI, see Under What Circumstances May A Non-Citizen Be
Eligible For SSI? available at https://www.ssa.gov/ssi/spotlights/spot-non-citizens.htm (last visited June 5, 2020).
---------------------------------------------------------------------------

Comment: Commenters stated that fee waivers should be available for
both affirmative and defensive asylum seekers. One commenter stated
that DHS failed to justify its decision to forgo fee waivers for asylum
applications, since the agency did not analyze data from other fee
waiver processes to determine whether the fee waivers would offset the
cost recovery of the asylum fee. Another commenter said that if fee
waivers will offset the revenue from the asylum fee, then the entire
fee should be abandoned.
One commenter said that the asylum fee should be established at
$366 while allowing Form I-589 applications to be submitted with a fee
waiver application, stating that many asylees are able to pay the full
fee. The fee waiver application process would better allow USCIS to
detect fraud while serving as a sworn statement of financial status,
circumventing the need for universal verification which consumes agency
resources.
The fee waiver for asylum applications would, according to this
commenter, enable indigent applicants to be granted asylum, upholding
the U.S.'s non-refoulement obligations. The commenter also stated that
defensive applications should be subject to the same fees as
affirmative applications, so long as a fee waiver remains available.
One commenter wrote that the elimination of fee waivers would
require immigrants with few economic resources to finance the cost of
their own oppression referencing that applicants who have a legal basis
for asylum claims will be forced to pay the fees associated with that
claim with no discretion or real procedural mechanism for accessing a
fee waiver. The commenter indicated that immigrants living in this
country often arrived as economic refugees and do not have economic
resources, especially given the difficulties in obtaining employment
without status. The commenter stated that forcing some of the most
marginalized communities to pay, for instance, a $1,170 filing fee
(more than 3 weeks wages for a low-income earner) makes a mockery of
the country's values.
Response: DHS acknowledges the commenters' concerns related to fees
and fee waivers for asylum seekers and asylees. As stated in the NPRM
and in this final rule, DHS is not providing fee waivers for the $50
asylum application fee. DHS's decision to establish a mandatory $50 fee
is justified. The $50 fee would generate an estimated $8.15 million of
annual revenue. If DHS permits fee waiver requests, it legitimately
assumes that the cost of administering the fee waiver request review
process may exceed the revenue, thereby negating any cost recovery
achieved from establishment of the fee. See 84 FR 62319. Although the
INA authorizes DHS to set fees ``at a level that will ensure recovery
of the full costs of providing all such services, including the costs
of similar services provided without charge to asylum applicants or
other immigrants,'' INA section 286(m), 8 U.S.C. 1356(m), DHS
establishes a $50 fee for Form I-589, which is well below the estimated
full cost of adjudicating the application.
The statutory authorization for fees allows, but does not require,
imposition of a fee equal to the full cost of the services provided.
The INA provides that DHS may impose fees for the consideration of
asylum and employment authorization applications that are not to exceed
the estimated costs of adjudicating the applications. See INA section
208(d)(3), 8 U.S.C. 1158(d)(3).\29\ INA section 208(d)(3) also states,
``[n]othing in this paragraph shall be construed to require [DHS] to
charge fees for adjudication services provided to asylum applicants, or
to limit the authority of [DHS] to set adjudication and naturalization
fees in accordance with section 286(m).'' Thus, DHS is permitted to
charge asylum applicants the same fee for employment authorization that
it charges all others for employment authorization. The fee for Form I-
765 is calculated in accordance with INA section 286(m), 8 U.S.C.
1356(m). DHS considered the effect of a non-waivable fee for the Form
I-589 on affirmative asylum seekers and believes that the fee does not
create a barrier to asylum for indigent applicants. The imposition of
any fees for defensive asylum applications filed with EOIR is a matter
that falls within the jurisdiction of the Department of Justice, rather
than DHS, subject to the laws and regulations governing fees charged in
immigration court proceedings before EOIR. Under those regulations,
EOIR charges the fee established by DHS for a DHS form and determines
the availability of a fee waiver for a DHS form based on whether DHS
allows such a waiver. See 8 CFR 1103.7(b)(4)(ii), (c).
---------------------------------------------------------------------------

\29\ This section states, ``The Attorney General may impose fees
for the consideration of an application for asylum, for employment
authorization under this section, and for adjustment of status under
section 209(b). Such fees shall not exceed the Attorney General's
costs in adjudicating the applications. The Attorney General may
provide for the assessment and payment of such fees over a period of
time or by installments.''
---------------------------------------------------------------------------

Further, the fees align with U.S. international treaty obligations
and domestic implementing law. As indicated in the NPRM, DHS believes
that the asylum fee may arguably be constrained in amount, but is not
prohibited, by the 1951 U.N. Convention Relating to the Status of
Refugees (``1951 Refugee Convention'') and the 1967 U.N. Protocol
Relating to the Status of Refugees (``1967 Refugee Protocol'').\30\ See
84 FR 62318-19; 1951 Refugee Convention, 19 U.S.T. 6259,

[[Page 46809]]

189 U.N.T.S. 137; 1967 Refugee Protocol, 19 U.S.T. 6223, 606 U.N.T.S.
267. The 1951 Refugee Convention and the 1967 Refugee Protocol, as
incorporated by reference, address the imposition of fees on
individuals seeking protection, and limit ``fiscal charges'' to not
higher than those charged to their nationals in similar situations. See
Article 29(1) of the 1951 Refugee Convention, and 1967 Refugee
Protocol, as incorporated by reference. Domestic implementing law,
which is consistent with international treaty obligations, authorizes
the Attorney General to ``impose fees for the consideration of an
application for asylum, for employment authorization under this section
[208], and for adjustment of status under section 209(b).'' INA section
208(a)(3), 8 U.S.C. 1158(a)(3). Thus, as provided in the NPRM and in
this final rule, no fee waivers are available to asylum seekers in
connection with filing Form I-589 or for Form I-765 with USCIS.
Notably, unaccompanied alien children in removal proceedings who file
an application for asylum with USCIS are exempt from the Form I-589
fee. New 8 CFR 106.2(a)(20).
---------------------------------------------------------------------------

\30\ 1951 Convention relating to the Status of Refugees, opened
for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137; 1967
Protocol relating to the Status of Refugees, open for signature Jan.
31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. Although the United
States is not a signatory to the 1951 Refugee Convention, it adheres
to Articles 2 through 34 by operation of the 1967 Refugee Protocol,
to which the United States acceded on Nov. 1, 1968.
---------------------------------------------------------------------------

As proposed in the NPRM and stated in this final rule, DHS exempts
applicants filing as refugees under INA section 209(a), 8 U.S.C.
1159(a), from the filing fee for adjustment of status applications
(Form I-485). See 8 CFR 106.2(a)(17)(iii). Asylees are not exempt from
the Form I-485 filing fee, and neither asylees nor refugees are exempt
from naturalization fees (Form N-400). The fee waiver regulations are
consistent with the INA and international treaty obligations, which
allow for the imposition of fees, and do not require that DHS offer
these applicants fee waivers. See INA section 208(a)(3), 8 U.S.C.
1158(a)(3).
DHS considered extending the fee waiver rules that apply to SIJ,
SIVs, T, U and VAWA applicants to asylum seekers, asylees, and
refugees. However, in reviewing the data on the number of applicants
for various forms, DHS concluded that the populations of asylum
applicants, refugees, and asylees are substantial enough that a fee
waiver would have caused a greater increase to the I-765 and N-400
fees, for example, thereby increasing the burden upon other applicants.
As explained in the NPRM, initial applicants with pending asylum
applications, aliens who have not yet established eligibility for
asylum, account for approximately 13 percent of the total Form I-765
workload volume forecast. See 84 FR 62320. Continuing to exempt this
population of aliens which is only eligible to obtain an EAD due to an
asylum application pending for a certain amount of time from the Form
I-765 fee or permitting fee waivers would have further increased the
proposed fee, meaning that fee-paying EAD applicants would pay a higher
amount to fund the cost of EADs for asylum applicants. Therefore, DHS
limited fee waiver availability to only those categories of
humanitarian programs that had limited populations to avoid increasing
other fees. The limitation of fee waiver availability conforms with the
beneficiary pays principle, and unlike the asylum seeker, asylee, and
refugee population, such limited fee waiver availability does not pass
on a significant burden to other applicants.
Notwithstanding these considerations and changes, DHS retains the
authority in the final rule for the Director of USCIS to waive any fee
if he or she determines that such action is an emergent circumstance,
or if a major natural disaster has been declared in accordance with 44
CFR part 206, subpart B. See 8 CFR 106.3(b). As provided in the NPRM,
USCIS will continue to notify the general public of eligibility for fee
waivers for specific forms under this provision through policy or
website updates. See 84 FR 62300. Individuals who may qualify for such
a fee waiver will still need to meet the requirements to request a fee
waiver as provided in 8 CFR 106.3(b).
In this final rule, DHS consolidates the provisions regarding the
USCIS Director's discretion to provide fee waivers in the proposed 8
CFR 106.3(b) and 8 CFR 106.3(c), as proposed 8 CFR 106.3(b) was
redundant.
Comment: Multiple commenters wrote that the proposal eliminating
the fee waivers would severely affect vulnerable immigrants and
survivor-based immigration. Several commenters stated that the
elimination of fee waivers will harm the most vulnerable populations,
such as domestic violence or human trafficking survivors, and those in
times of crisis. One commenter stated fee waivers should be available
to individuals seeking humanitarian relief and lacking the ability to
pay. Several commenters stated that the elimination of most fee waivers
discriminates against immigrants who are low income, elderly, and have
disabilities and undermines humanitarian protection for victims of
gender-based violence and other crimes. Multiple commenters wrote that
eliminating the availability of fee waivers would only create an
insurmountable economic barrier to low-income, vulnerable immigrants
and lawful permanent residents, such as survivors of domestic violence,
sexual assault, human trafficking, gender-based abuses, and other
crimes, as well as their children. A few commenters wrote that access
to fee waivers helps survivors and their children rebuild their lives;
break free from the cycle of abuse; heal; and protect themselves, their
children, and the community. Commenters stated that USCIS should
instead focus on ensuring that low-income and other vulnerable
immigrants have access to immigration relief for which they are
eligible.
One commenter said that access to fee waivers is essential for
survivors because it allows them to replace confiscated immigration
documents such as permanent resident cards or employment authorization
cards. The commenter stated that without fee waivers, survivors would
be unable to pay these filing fees and would have to choose between
going without these documents or putting their lives in danger to
retrieve documents from potentially dangerous situations.
Multiple commenters wrote that while fee waivers for certain
survivor-related applications will remain, the proposed rule ignores
the fact that survivors may pursue other routes to secure immigration
status other than those specifically designed for crime survivors. The
commenters stated that, by removing waivers for these other routes, the
proposed rule would harm survivors. One commenter indicated for a
survivor of family violence, the ability to apply for a fee waiver was
crucial to be able to obtain an EAD and gain some financial stability
and independence from her abusive spouse. The commenter indicated that,
as an example, a fee waiver allows a client to be able to maintain
employment eligibility at her minimum wage job. Without the ability to
apply for a fee waiver for all related applications the client would
have faced additional barriers that would have prohibited her from
obtaining financial independence from the abuser and lawful status. One
commenter stated that the proposal ignores the fact that survivors of
human trafficking may pursue other routes to secure immigration status
and in these instances, survivors will no longer have access to fee
waivers. Some commenters drew upon their experiences counseling those
seeking immigration benefits to underscore their opposition to further
restricting access to legal immigration via unaffordable filing fees or
the elimination of fee waivers. A commenter said the elimination of fee
waivers would place ``the majority'' of its clients in a precarious
position because they do not have funds to pay fees out of pocket and
will have to

[[Page 46810]]

choose between borrowing money and pursuing immigration benefits that
would improve their lives. The commenter wrote that many of its clients
were ``cut off'' from financial institutions and described the dangers
of borrowing from ``predatory lending mechanisms'' or from family
members who may use the debt owed as ``currency for their abusive
behavior'' in some circumstances. The commenter also said the increased
fees for work authorization would leave many immigrants vulnerable to
victimization, citing a report from Public Radio International.
Many commenters also wrote that the proposed changes for necessary
ancillary forms, including I-765, I-601, I-192, and I-929, would impose
significant fee increases that survivors often cannot afford. Another
commenter stated that the elimination of fee waivers, combined with the
increased fees for N-400, would put those escaping violence in the
position of having to choose between expending resources to become a
U.S. citizen or covering basic necessities for their families.
A commenter said individuals with U nonimmigrant status or other
humanitarian-based immigration benefits should not be ``priced out'' of
remaining with their families. Another commenter said more than 94
percent of domestic violence survivors suffer financial abuse, and many
receive some form of means-tested benefits that may preclude them from
applying for fee waivers in the naturalization process. The commenter
said fee waivers were critical for ensuring such vulnerable individuals
have the opportunity to pursue citizenship.
Response: DHS is not intending to further harm survivors of
domestic violence, human trafficking, or other crimes. In fact, DHS
continues to exempt VAWA self-petitioners, individuals who are victims
of a severe form of human trafficking and who assist law enforcement in
the investigation or prosecution of those acts of trafficking or
qualify for an exception (who may qualify for T nonimmigrant status),
and individuals who are victims of certain crimes and have been, are
being, or are likely to be helpful to the investigation or prosecution
of those crimes (who may qualify for U nonimmigrant status) from paying
a fee for the main benefit forms: Form I-360 for VAWA, and Forms I-914
and I-918 for T and U nonimmigrants including family members,
respectively. See 8 CFR 106.2(a)(16)(ii), (a)(45) and (a)(46). DHS
believes that maintaining access to fee waivers for these vulnerable
populations mitigates any concerns that the increase in certain fees
would limit access for protected categories of individuals. In
addition, in response to commenters' concerns regarding the ability for
the VAWA, T nonimmigrant, U nonimmigrant and Special Immigrant (Afghan
and Iraqi translators) populations to pay for the cost of
naturalization applications, DHS decided to expand the ability of these
populations to apply for a fee waiver for Form N-400, Application for
Naturalization, Form N-600, Application for Certificate of Citizenship,
and Form N-600K, Application for Citizenship and Issuance of
Certificate Under Section 322. See 8 CFR 106.3(a)(3).
Comment: One commenter referred to a study from the National
Resource Center on Domestic Violence that found means-tested benefits
support financial security and independence and are ``critically
important'' for survivors of domestic violence, sexual assault, and
human trafficking. The commenter said recipients of means-tested
benefits are, by definition, of limited financial means and need these
benefits to meet their basic needs. The commenter said restricting the
availability of fee waivers would harm survivors of domestic violence
and other forms of gender-based violence, and cited research
demonstrating the widespread incidence and devastating economic impacts
of such violence.
Response: DHS does not intend to further harm domestic violence or
human trafficking survivors. In fact, the rule continues to exempt
those applying for VAWA, T, and U benefits from certain fees and allows
them to request fee waivers for other forms as provided by statute. DHS
believes that maintaining access to fee waivers for these populations
mitigates any concerns that the increase in certain fees would limit
access for protected categories of individuals. See 8 CFR 106.3(a).
Comment: A commenter stated that Congress mandated that DHS permit
applicants to apply for a waiver of any fees associated with VAWA
benefits, T nonimmigrant filings, U nonimmigrant filings, or an
application for VAWA cancellation of removal or suspension of
deportation. In doing so, Congress recognized that ensuring equal
access to immigration protections was crucial for crime survivors to
achieve safety and security. Many commenters also wrote that the
proposed rule undermines Congressional intent to make humanitarian
relief accessible to victims. Another commenter stated that the
proposed rule clearly violates Congressional intent, as reiterated in a
December 2019 House Appropriations Committee report, by imposing fees
on individuals who have received humanitarian protection and
subsequently seek adjustment of status and other immigration benefits
which they cannot afford. The commenters said low-income survivors will
not apply for benefits due to the barriers they will encounter in
demonstrating their eligibility for fee waivers and that the proposed
rule ``undermines'' bi-partisan Congressional intent with respect to
VAWA-based relief. Commenters stated that the language runs counter to
existing law as Congress did not place any conditions on the
availability of fee waivers for survivors when it codified the use of
fee waivers for filing a VAWA self-petition, a T nonimmigrant status
application or U nonimmigrant status petition, or an application for
VAWA cancellation or suspension of deportation. Other commenters wrote
that USCIS should automatically waive fees for all forms associated
with applications for T nonimmigrant status, U nonimmigrant status, and
VAWA self-petitioners to make humanitarian immigration relief
accessible to victims.
Response: DHS exempts VAWA self-petitioners, applicants for T
nonimmigrant status, and petitioners for U nonimmigrant status from
paying a fee for the main benefit forms: Form I-360 for VAWA, and Forms
I-914 and I-918 for T and U nonimmigrants including family members,
respectively. Thus, DHS is making relief accessible to the populations
noted by the commenters.
Further, this final rule complies with the law's requirements \31\
to permit these applicants to apply for a waiver of any fees associated
with filing an application for relief through final adjudication of the
adjustment of status. See new 8 CFR 106.3(a)(1). DHS agrees that
Congress did not place any conditions on the availability of fee
waivers for a VAWA self-petition, a T nonimmigrant status application,
or U nonimmigrant status petition, or an application for VAWA
cancellation or suspension of deportation, but DHS disagrees that any
legislation requires or implies or that Congress intended that USCIS
provide free adjudications for all of their associated benefit
requests. Congress has codified several fee exemptions or fee limits.
See, e.g., INA section 328(b)(4), 8 U.S.C. 1439(b)(4) (fee exemption
for Military Naturalization Based on Peacetime Service); INA section
244(c)(1)(B), 8

[[Page 46811]]

U.S.C. 1254a(c)(1)(B) (the registration fee for TPS is limited to $50,
although additional fees may be collected for biometrics and associated
services, See 8 U.S.C. 1254b. Congress has also appropriated funds for
adjudication and certain naturalization services. See, e.g.,
Consolidated Appropriations Act, 2019, Public Law 116-6, div. A, tit.
IV (Feb. 15, 2019) and Consolidated Appropriations Act, 2020, Public
Law 116-93, div. D, tit. IV (Dec. 20, 2020). Congress has not provided
for a fee exemption, fee cap, or appropriated funds for VAWA self-
petitioners, T nonimmigrant status applicants, and U nonimmigrant
status petitioners. To the contrary, the statute directs DHS to allow
applications for fee waivers, rather than to waive all such fees,
evidencing Congress's intent for DHS to evaluate the individual merits
of such requests. DHS appreciates the concerns about affordability,
but, while many victim requesters are in poor financial condition,
being a victim does not equate to being poor, and DHS may require that
the victim requester document eligibility for a fee waiver. Therefore,
DHS makes no changes in the final rule as a result of these comments.
---------------------------------------------------------------------------

\31\ See INA section 245(l)(7), 8 U.S.C. 1255(l)(7).
---------------------------------------------------------------------------

Comment: Commenters stated that while applications and petitions
for survivor-based relief do not have fees, applicants must frequently
file ancillary forms whose fees are increasing under the proposed rule
or may seek status through other immigration categories. The commenter
stated that by eradicating fee waivers for other types of applications
and petitions, the proposed rule ignores the facts that survivors of
domestic violence, sexual assault, human trafficking, and other gender-
based abuses may pursue other routes to secure immigration status which
lack such explicit protections. They also noted that fee waivers will
no longer be available for any naturalization applications and many
other forms in non-survivor based cases, like legal permanent residence
applications; work permit applications; and Form I-751, Petition to
Remove Conditions on Residence; among others. Another commenter said
the final rule would need to more explicitly address the protections
and exemptions for humanitarian visa categories because the proposed
rule contained contradictory and confusing language and many potential
applicants would not necessarily be aware of special protections to
which they are entitled.
Other commenters requested that USCIS withdraw the proposed rule,
because it would create barriers to accessing immigration benefits for
victims, and immigration benefits are essential for survivors to escape
abuse and become self-sufficient after they have been victimized.
Commenters stated that the rule ignores survivors of domestic violence,
who have a spotty employment history or lack of savings, or both, and
survivors of human trafficking, who may spend many months waiting for
compensation from litigation or before they are able to recuperate
their lost wages.
Other commenters detailed how economic abuse affects survivors'
finances, including precluding victims from working, destroying their
work uniforms and equipment, preventing them from getting to work or an
interview, and other tactics that impact a victim's financial
independence and impede their ability to pay filing fees. One commenter
specifically noted that VAWA self-petitioners often have limited
financial means, are often homeless after escaping their abusers, and
suffer from physical and mental health issues. The commenter stated
that the little money they do have is needed to help them maintain
independence from their abusers and provide for their families. One
commenter wrote that USCIS should focus on ensuring vulnerable
immigrants have access to immigration relief for which they are
eligible. The commenters stated that fee waivers for survivor-based
immigration protections have helped survivors improve their lives by
allowing them to obtain employment authorization and legal status
without having to request funds from their abusers or forgo food or
housing in order to pay fees. In the context of VAWA, T, and U
applicants, another commenter stated that the fee increases did not
take into account areas of the country, such as the San Francisco Bay
Area, where living expenses and housing costs are high. They said such
a fee increase also does not consider the mandatory expense of the
obligatory medical exam (Form I-693, Report of Medical Examination and
Vaccination Record) that in their experience ranges anywhere from $300
to $700 and for which there is no fee waiver.
Response: DHS acknowledges the concerns commenters have raised and
does not intend to unduly burden any alien, particularly those who have
been victimized. To avoid confusion and clarify the applicability of
the rule, DHS reiterates that the rule continues to exempt the VAWA, T,
and U populations from fees for the main benefit forms and allows them
to submit fee waiver requests for any associated forms up to and
including the application for adjustment of status, as provided by
statute. For example, there are no fees for the following forms: VAWA-
based Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant; Form I-914, Application for T Nonimmigrant Status; and Form
I-918, Petition for U Nonimmigrant Status. In addition, VAWA, T, and U
filers may submit a request for a fee waiver for associated forms,
including Forms I-765, I-131, I-212, and I-601, among other forms.
Additionally, in response to commenters' concerns regarding the
ability for the victim population to pay for the cost of naturalization
applications, DHS will permit this population to request a fee waiver
for Form N-400, Application for Naturalization; Form N-600, Application
for Certificate of Citizenship; and Form N-600K, Application for
Citizenship and Issuance of Certificate Under Section 322. The table
below provides the full list of forms these applicants and petitioners
may apply for that are either exempt from fees or eligible for fee
waivers. DHS repeats these applicants, generally, do not have to pay
the fees for the initial main benefit forms that provide the
immigration status or benefit.

[[Page 46812]]

Table 3--Categories and Forms Without Fees or Eligible for Fee Waivers
----------------------------------------------------------------------------------------------------------------
Main immigration benefit requests
Category \32\ Associated forms
----------------------------------------------------------------------------------------------------------------
Violence Against Women Act Form I-360, Petition for Form I-131, Application for Travel
(VAWA) self-petitioners and Amerasian, Widow(er), or Special Document.\34\
derivatives as defined in INA Immigrant (no fee for VAWA-based Form I-212, Application for Permission to
section 101(a)(51) or filings). Reapply for Admission into the United
individuals otherwise self- Form I-485, Application to States After Deportation or Removal.
petitioning for immigrant Register Permanent Residence or Form I-290B, Notice of Appeal or Motion.
classification or seeking Adjust Status. Form I-601, Application for Waiver of
adjustment of status due to Form I-751, Petition to Remove Grounds of Inadmissibility.
abuse by a qualifying relative Conditions on Residence. Form I-765, Application for Employment
\33\. Form I-881, Application for Authorization (no initial fee for
Suspension of Deportation or principals).\35\
Special Rule Cancellation of Form N-400, Application for Naturalization.
Removal (Pursuant to Section 203 Form N-600, Application for Certificate of
of Public Law 105-100 (NACARA)). Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.
Victims of Severe Form of Form I-914, Application for T Form I-131, Application for Travel
Trafficking (T nonimmigrant) Nonimmigrant Status (no fee). Document.
\36\. Form I-914 Supplement A, Form I-192, Application for Advance
Application for Family Member of Permission to Enter as a Nonimmigrant.
T-1, Recipient (no fee). Form I-193, Application for Waiver of
Form I-914, Supplement B, Passport and/or Visa.
Declaration of Law Enforcement Form I-290B, Notice of Appeal or Motion.
Officer for Victim of Form I-539, Application to Extend/Change
Trafficking in Persons (no fee). Nonimmigrant Status.
Form I-485, Application to Form I-601, Application for Waiver of
Register Permanent Residence or Grounds of Inadmissibility.
Adjust Status. Form I-765, Application for Employment
Authorization (no initial fee for
principals).
Form N-400, Application for Naturalization.
Form N-600, Application for Certificate of
Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.
Victims of Criminal Activity (U Form I-918, Petition for U Form I-131, Application for Travel
nonimmigrant) \37\. Nonimmigrant Status (no fee). Document.
Form I-918, Supplement A, Form I-192, Application for Advance
Petition for Qualifying Family Permission to Enter as a Nonimmigrant.
Member of U-1 Recipient (no fee). Form I-193, Application for Waiver of
Form I-918 Supplement B, U Passport and/or Visa.
Nonimmigrant Status Form I-290B, Notice of Appeal or Motion.
Certification (no fee). Form I-539, Application to Extend/Change
Form I-929, Petition for Nonimmigrant Status.
Qualifying Family Member of a U- Form I-765, Application for Employment
1 Nonimmigrant. Authorization (no initial fee for
Form I-485, Application to principals).
Register Permanent Residence or Form N-400, Application for Naturalization.
Adjust Status. Form N-600, Application for Certificate of
Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.
Employment authorization for Form I-765V, Application for None.
battered spouses of A, G, E-3, Employment Authorization for
or H nonimmigrants \38\. Abused Nonimmigrant Spouse (no
initial fee).
Battered spouses or children of None with USCIS.................. Form I-601, Waiver of Grounds of
a lawful permanent resident or Inadmissibility.
U.S. citizen and derivatives Form N-400, Application for Naturalization.
under INA section 240A(b)(2) Form N-600, Application for Certificate of
\39\. Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.
Temporary Protected Status \40\. Form I-821, Application for Form I-131, Application for Travel
Temporary Protected Status. Document.
Biometric Services Fee........... Form I-601, Application for Waiver of
Grounds of Inadmissibility.
Form I-765, Application for Employment
Authorization.
Special Immigrant Juveniles Form I-360, Petition for Form I-131, Application for Travel
(SIJ) who have been placed in Amerasian, Widow(er), or Special Document.\41\
out-of-home care under the Immigrant (no fee). Form I-212, Application for Permission to
supervision of a juvenile court Form I-485, Application to Reapply for Admission into the United
or a state child welfare agency Register Permanent Residence or States After Deportation or Removal.
at the time of filing. Adjust Status. Form I-290B, Notice of Appeal or Motion.
Form I-601, Application for Waiver of
Grounds of Inadmissibility.
Form I-765, Application for Employment
Authorization.
Form N-400, Application for Naturalization.
Form N-600, Application for Certificate of
Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.

[[Page 46813]]

Special Immigrant as an Afghan Form I-360, Petition for Form I-131, Application for Travel Document
or Iraqi Translator or Amerasian, Widow(er), or Special (no fee).
Interpreter, Iraqi National Immigrant (no fee). Form I-290B, Notice of Appeal or Motion (no
employed by or on behalf of the Form I-485, Application to fee).
U.S. Government, or Afghan Register Permanent Residence or Form I-765, Application for Employment
National employed by or on Adjust Status (no fee). Authorization (no fee).
behalf of the U.S. government Form I-212, Application for Permission to
or employed by the Reapply for Admission into the United
International Security States After Deportation or Removal.
Assistance Forces. Form I-601, Application for Waiver of
Grounds of Inadmissibility.
Form N-400, Application for Naturalization.
Form N-600, Application for Certificate of
Citizenship.
Form N-600K, Application for Citizenship
and Issuance of Certificate Under Section
322.
----------------------------------------------------------------------------------------------------------------

Although DHS is increasing fees for various forms to account for
the cost of adjudication, the victim populations identified here will
be eligible to apply for a fee waiver for most forms if their income is
at or below 125 percent of the FPG. As stated previously, the law does
not require, and DHS declines to adopt, the recommendation to
automatically waive fees for all forms associated with VAWA, T, and U
filings or to withdraw the rule in its entirety. USCIS is funded
through fees, and taxpayer dollars are not used to fund USCIS
adjudication and naturalization services. The cost associated with
applications and petitions that have been fee waived is paid from fees
collected from other benefit requests. DHS believes that maintaining
access to fee waivers for these vulnerable populations mitigates any
concerns that the increase in the fees will limit access for protected
categories of individuals.
---------------------------------------------------------------------------

\32\ Some immigration benefit requests may not have a fee for
the specific category.
\33\ See INA sections 101(a)(51) and 204(a), 8 U.S.C.
1101(a)(51) and 1154(a); INA section 245(l)(7), 8 U.S.C. 1255(l)(7);
Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008); 22 U.S.C. 7101
et seq. This category includes applicants for waivers of the joint
filing requirement for Form I-751 based on battery and extreme
cruelty; victims of battery or extreme cruelty as a spouse or child
under the Cuban Adjustment Act Public Law 99-603, 100 Stat. 3359
(November 6, 1986) (as amended), 8 U.S.C. 1255a; applicants
adjusting based on dependent status under the Haitian Refugee
Immigrant Fairness Act, Public Law 105-277, 112 Stat. 2681 (October
21, 1998), 8 U.S.C. 1255, for battered spouses and children; and
applicants for Suspension of Deportation or Special Rule
Cancellation of Removal (Form I-881) under the Nicaraguan Adjustment
and Central American Relief Act, Public Law 105-100, 111 Stat. 2163
(Nov. 19, 1997), for battered spouses and children.
\34\ Currently, fees for Form I-131 are exempt if filed in
conjunction with a pending or concurrently filed Form I-485 with fee
that was filed on or after July 30, 2007. See 8 CFR
103.7(b)(1)(i)(M)(4). However, DHS implements changes to this policy
in this final rule as explained in this preamble. New 8 CFR
106.2(a)(7)(iv).
\35\ Form I-360 allows a principal self-petitioner to request an
EAD incident to case approval without submitting a separate Form I-
765. Form I-765 is required for employment authorization requests by
derivative beneficiaries.
\36\ See INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) (T
nonimmigrant status for victims of a severe form of trafficking in
persons).
\37\ See INA section 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U) (U
nonimmigrant status for victims of certain criminal activity).
\38\ See INA section 106, 8 U.S.C. 1105a.
\39\ See INA section 240A(b)(2), 8 U.S.C. 1229b(b)(2), and INA
section 245(l)(7), 8 U.S.C. 1255(l)(7).
\40\ See INA section 244, 8 U.S.C. 1254a.
\41\ Currently, fees for Form I-131 are exempt if filed in
conjunction with a pending or concurrently filed Form I-485 with fee
that was filed on or after July 30, 2007. See 8 CFR
103.7(b)(1)(i)(M)(4). However, DHS proposes changes to the policy in
this final rule as explained later in this preamble. New 8 CFR
106.2(a)(7)(iv).
---------------------------------------------------------------------------

As the commenters point out, the law provides specific immigration
benefits for those who have been victimized and provides protections
and flexibilities for these populations to address their particular
concerns. This final rule complies with those provisions.
Comment: Another commenter provided statistics describing the
economic condition of the population served by non-profit legal service
providers in its State and wrote that the proposal would increase the
strain on these important organizations. The commenter noted that
nearly 90 percent of the 25 legal service providers surveyed in its
state represented applicants for humanitarian immigration benefits,
such as VAWA petitions, trafficking victims on T nonimmigrant
applications, or asylum applicants. The commenter stated the proposal
would create a chilling effect on all clients served by these
organizations, regardless of the benefits for which they qualify, and
could ultimately jeopardize these organizations' budgets due to a
reduction in the number of cases served.
Response: As stated previously, DHS appreciates the services that
charitable, community based, non-governmental, and non-profit
organizations provide to the immigrant community. DHS declines,
however, to exempt from fees all forms associated with VAWA, T, and U
filings. Organizations providing services to the VAWA, T, and U
population will continue to be able to request fee waivers for forms
associated with these filings in addition to a fee exemption for the
main benefit request (i.e., Form I-360, Form I-914, and Form I-918 have
no fee for these populations).
Comment: One commenter stated that the proposed Form I-912
instructions ``create additional burdens that are ultra vires to the
statute permitting fee waivers for survivor-based cases, notably with
the phrase `due to your victimization.' '' The commenter stated that
survivors should not have to demonstrate a nexus between their
victimization and their lack of income or proof of income. The
commenter also stated that this non-statutory requirement is burdensome
on survivors, as they may face obstacles obtaining or providing proof
of income for reasons that may or may not be related to their
victimization and will prevent many survivors from accessing critical
benefits. Several commenters said low-income survivors will not apply
for benefits due to the barriers they will encounter in demonstrating
their eligibility for fee waivers and that the proposed rule undermines
bi-partisan Congressional intent with respect to VAWA-based relief.
Many commenters stated that the additional limits on fee waiver
eligibility criteria combined with the stringent documentation
requirements for fee waivers (e.g., Form I-912 instructions that
survivors need to ``demonstrate a nexus between their victimization and
lack of income or proof of income) will prevent many survivors from
qualifying or applying for fee waivers. A commenter stated that,
whether intentional or not, the proposed rule will act as a barrier to
status for the crime survivors we serve and, coupled with the stringent
documentation requirements for fee waivers, will prevent many survivors
from qualifying

[[Page 46814]]

for fee waivers.'' A commenter said the proposed Form I-912
instructions create additional burdens for crime survivors from
qualifying for fee waivers, and USCIS should continue to accept
applicant-generated fee waiver requests. One commenter said USCIS had
received many comments on a previous attempt to modify the fee waiver
form from stakeholders concerned about the negative impact those
changes would have on immigrant survivors of violence and wrote that
the current proposal would make these problems worse. The commenter
said survivors of violence would be adversely impacted by the
heightened documentation requirements, specifically the provision that
survivors would have to demonstrate that their inability to comply with
documentation requirements was due to their victimization. The
commenter said the proposal failed to reference any exceptions to the
vague ``victimization'' standard despite USCIS' prior recognition that
the requirement to provide documentation from the Internal Revenue
Service (IRS) would disadvantage immigrant survivors.
Response: To obtain a fee waiver, an applicant must demonstrate
that he or she is at or below 125 percent of the FPG, meet the other
criteria as provided in the rule, and provide the information and
evidence available in order to establish eligibility. The applicant
need only provide sufficient information to establish why the
documentation is not available and not that it is unavailable directly
or indirectly as a result of the victimization. The form provides space
for explanations and attachments are accepted, but a separate
declaration is unnecessary. Although not required by statute, USCIS has
provided flexibilities in the instructions for the VAWA, T, and U
populations permitting them to submit information regarding their
inability to obtain documentation on their income with their fee waiver
request. DHS will presume that the inability of this group of
applicants to submit certain evidence is the result of the
victimization and abuse and not require proof of a nexus between
victimization and the inability to pay, but the request must
demonstrate inability to pay to the extent necessary for USCIS to grant
a discretionary fee waiver. All applicants for a fee waiver are subject
to the evidence requirements as provided in the revised form
instructions, which include more flexible rules with respect to the
groups these comments mention. If individuals are unable to obtain
documents without contacting the abuser, they can explain why they are
unable to obtain such documentation and submit other evidence to
demonstrate their eligibility. Obtaining information from the IRS in
transcripts, a W-2, or proof of non-filing, if applicable, is
sufficient documentation to establish the necessary income or lack of
income.
Comment: A few commenters discussed the processing times for
survivor-based forms of immigration protections, citing increased
adjudication time for filings such as petitions for U nonimmigrant
status and Violence Against Women Act (VAWA) self-petitions. Commenters
said slow processing times can lead to increased homelessness,
violence, or a return to abusive relationships for victims and that
USCIS has failed to address how these fees will improve processing
times. One commenter cited several sources and wrote that new fees
would not result in improved processing but instead would contribute
to, and escalate, violence.
Response: DHS understands the commenter's concerns regarding
processing times. Processing times are impacted by several factors, and
any changes based on the rule would limitedly impact these populations.
The rule continues to exempt the VAWA, T, and U populations from
certain fees and allows them to submit fee waiver requests for any
forms up to adjustment of status. See new 8 CFR 106.2(a)(16),
(a)(32)(ii), (a)(45) and (a)(46); 8 CFR 106.3(a)(3). In the final rule
DHS is permitting a request for a fee waiver on the application for
naturalization or certificate of citizenship for these categories. See
new 8 CFR 106.3(a)(3). DHS disagrees that this final rule would result
in increased processing times or contribute to escalating violence on
these populations, particularly as the additional resources made
available from increased fees may enable USCIS to limit growth in
pending caseloads. As DHS states elsewhere in this rule, DHS is
adjusting fees in this final rule because they are insufficient to
generate the revenue necessary to fund USCIS at levels adequate to meet
its processing time goals. The new fees will allow USCIS to hire more
people to adjudicate cases and possibly prevent the growth of backlogs.
Comment: A commenter stated that the proposed rule is not detailed
enough about whether refugees are exempt from fees including the Form
I-765 fees and whether asylees and SIJ petitioners and recipients will
be eligible for fee waivers. The commenter also stated that DHS fails
to understand that individuals are forced to file fee waivers when DHS
places fees for benefits out of the reach of most low to moderate
income applicants and that the inability to access identity documents
exacerbates homelessness and unemployment, concluding that elimination
of fee waivers is arbitrary and capricious.
Response: DHS acknowledges the concerns of the commenter related to
the availability of fee waivers for refugees and asylees, and other
vulnerable applicants and petitioners. DHS will continue to provide a
fee exemption for the initial Form I-765 for individuals who were
granted asylum (asylees) or who were admitted as refugees. See 84 FR
62301. DHS is also continuing to provide a fee exemption to refugees
for Form I-485. See 84 FR 62360; new 8 CFR 106.2(a)(17)(iii). In
addition, the fee that DHS charges for refugee travel documents will
continue as a lesser fee, linked to the fee for a U.S. passport book,
rather than the estimated full cost of adjudication. See 84 FR 62306.
At the USCIS Director's discretion, USCIS may waive or exempt the
fee for any form, including those filed by asylees and refugees. See 8
CFR 106.3(b), (e). That provision is similar to, but somewhat more
limited than, the authority that was in 8 CFR 103.7(d) for the Director
of USCIS to provide for the waiver or exemption of any fee if doing so
was in the public interest. The new provision provides that the
Director determines that such action is an emergent circumstance or if
a major natural disaster has been declared in accordance with 44 CFR
part 206, subpart B. See 8 CFR 106.3(b), (e). As was stated in the
NPRM, USCIS will notify the public of the availability of fee waivers
for specific forms under this provision through external policy
guidance, website updates, and communication materials. See 84 FR
62300. Individuals who qualify for such a fee waiver would still need
to meet the requirements to request a fee waiver as provided in the new
8 CFR 106.3(b) and (d). In this final rule, DHS consolidated the
provisions regarding the USCIS Director's discretion in 8 CFR 106.3(b)
and 8 CFR 106.3(c), as the proposed provision in the NPRM, 8 CFR
106.3(b), was redundant.
In response to commenters' concerns, DHS will also allow
petitioners for and recipients of SIJ classification who, at the time
of filing, have been placed in out-of-home care under the supervision
of a juvenile court or a state child welfare agency, to submit requests
for fee waivers for Form I-485 and associated forms, as well as Forms
N-400, N-600, and N-600K. See 8 CFR 106.3(a)(2)(i). DHS does not
believe that the final rule eliminates fee waivers for

[[Page 46815]]

these applicants or blocks access to identity documents.
Comment: Several commenters stated that the elimination of fee
waivers will harm the most vulnerable populations, such as domestic
violence or human trafficking survivors, and those in times of crisis.
One commenter stated fee waivers should be available to individuals
seeking humanitarian relief and lacking the ability to pay. One
commenter suggested that it would make better fiscal sense and would
result in better outcomes for USCIS if the agency automatically waives
fees for all forms associated with applicants for T nonimmigrant
status, petitioners for U nonimmigrant status, and VAWA self-
petitioners because fee waivers would facilitate non-profits' efforts
to help these applicants file these forms quickly. A commenter wrote
that delays in application submission due to limitations on fee waivers
would result in delayed justice for individuals because immigration
practitioners will be forced to spend more time on each case.
Response: DHS acknowledges the commenters' concerns and clarifies
that this final rule continues to exempt the VAWA, T and U populations
from certain fees and allows them to request fee waivers on other forms
as previously discussed. See 8 CFR 106.2(a)(16)(ii), (a)(45) and
(a)(46), 8 CFR 106.3. Furthermore, in response to concerns expressed by
the public, DHS provides in this final rule that those populations may
also request a fee waiver for Forms N-400, N-600, and N-600K. See 8 CFR
106.3(a)(3). DHS believes that by continuing to provide the opportunity
to request fee waivers, the final rule will not unduly burden these
populations or delay the submission of their applications and
petitions.
Comment: A commenter opposed the new form's request for applicants
to self-identify as survivors. The commenter stated that most types of
humanitarian relief covered by Form I-912 ``are subject to certain
protections and sanctions'' relating to privacy and confidentiality and
requested that USCIS clarify that the disclosure of personal
information in these sections complies with protections codified at 8
U.S.C. 1367.
Response: DHS takes seriously its responsibility to properly
protect sensitive information in its possession.\42\ DHS follows the
Privacy Act requirements, which apply to information that is maintained
in a ``system of records'' from which information is retrieved by the
name of an individual or by some identifying number, symbol, or other
identifier particular assigned to the individual. Information from
forms is collected and maintained consistent with the Privacy Act of
1974 \43\ (Privacy Act) and the System of Records Notice (SORN), which
identifies the purpose for which Personally Identifiable Information
(PII) is collected, from whom and what type of PII is collected, how
the PII is shared externally (routine uses), and how to access and
correct any PII maintained by DHS.\44\ With regard to 8 U.S.C. 1367
protections, DHS remains committed to our obligations under the statute
and applies the required protections to all information pertaining to
individuals with a pending or approved VAWA, T, or U petition or
application, which includes information provided on Form I-912.
---------------------------------------------------------------------------

\42\ See generally Notice of Modified Privacy Act System of
Records, 82 FR 43556, 43564 (Sept. 18, 2017) (``DHS/USCIS safeguards
records in this system according to applicable rules and policies,
including all applicable DHS automated systems security and access
policies. USCIS has imposed strict controls to minimize the risk of
compromising the information that is being stored.'').
\43\ See 5 U.S.C. 552.
\44\ See generally Notice of Modified Privacy Act System of
Records, 82 FR 43556, 43564 (Sept. 18, 2017) (``DHS/USCIS safeguards
records in this system according to applicable rules and policies,
including all applicable DHS automated systems security and access
policies. USCIS has imposed strict controls to minimize the risk of
compromising the information that is being stored.'').
---------------------------------------------------------------------------

Comment: Several commenters stated that SIJ petitioners and
recipients, a vulnerable group, are missing from USCIS' list of groups
retaining access to fee waivers. A commenter stated that this proposal
will hinder the ability of juveniles who receive SIJ classification to
fully integrate into the United States, due to excessive costs, and
that it will result in other unintended consequences, particularly for
unaccompanied minors. Such consequences include difficulty finding
sponsors and a lower level of legal representation. Commenters further
noted that the proposed fee increases would burden SIJ petitioners and
recipients who have no means to pay for the fees when applying for
adjustment of status. The commenter stated that SIJ petitioners and
recipients are children who have suffered abuse, neglect, or
abandonment by at least one of their parents. The commenter stated that
SIJs benefit immensely from obtaining work authorization, as working
lets the SIJs take control over their lives, provide for themselves,
and begin to build a brighter future. The commenter stated that
adjustment offers them the chance to permanently put down roots in the
United States, putting the trauma in their pasts behind them. One
commenter stated that in passing the Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA),\45\ Congress made amendments to
the SIJ statute to provide ``permanent protection for certain at-risk
children.'' The commenter further stated that not providing fee waivers
to SIJs would preclude at-risk children from accessing fee waivers and
thus clearly violate Congressional intent to permanently protect these
at-risk children. Another commenter said that the hardship would be
particularly acute for those SIJ petitioners in foster care, who have
limited or no access to the funds necessary to seek adjustment of
status with USCIS.
---------------------------------------------------------------------------

\45\ See The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA), Public Law 110-457, 112 Stat.
5044 (Dec. 23, 2008).
---------------------------------------------------------------------------

Response: The TVPRA \46\ requires DHS to permit certain applicants
to apply for fee waivers for ``any fees associated with filing an
application for relief through final adjudication of the adjustment of
status.'' INA section 245(l)(7), 8 U.S.C. 1255(l)(7), provides that
``The Secretary of Homeland Security shall permit aliens to apply for a
waiver of any fees associated with filing an application for relief
through final adjudication of the adjustment of status for a VAWA self-
petitioner and for relief under sections 1101(a)(15)(T),
1101(a)(15)(U), 1105a, 1229b(b)(2), and 1254a(a)(3) of this title (as
in effect on March 31, 1997).'' These provisions do not include SIJ
petitioners or recipients. Therefore, DHS is not mandated to allow SIJs
to apply for fee waivers. Nevertheless, after considering the
commenters' concerns, DHS agrees that SIJ petitioners who are wards of
the state are particularly vulnerable. Therefore, DHS will allow
petitioners for and recipients of SIJ classification who, at the time
of filing, have been placed in out-of-home care under the supervision
of a juvenile court or a state child welfare agency, to request that
the fees for Form I-485 and associated forms be waived. See 8 CFR
106.3(a)(2)(i).
---------------------------------------------------------------------------

\46\ See title II, subtitle A, sec. 201(d)(3), Public Law 110-
457, 122 Stat. 5044 (2008); INA section 245(l)(7), 8 U.S.C.
1255(l)(7).
---------------------------------------------------------------------------

In addition, DHS is including Forms N-400, N-600, and N-600K as
forms eligible for a fee waiver for multiple categories of applicants.
See 8 CFR 106.3(a)(3). Table 3 above provides a list of forms eligible
for fee waivers based on SIJ classification.
Comment: A commenter stated that limits on categories eligible for
fee waivers and elimination of a need-based benefit as a way to qualify
for a fee

[[Page 46816]]

waiver will have an especially heavy impact on the homeless, who often
have difficulty providing required documents and must file applications
for replacement of lost or stolen immigration documents.
Response: This final rule does not prohibit aliens who are homeless
from applying for or receiving a fee waiver if he or she is a member of
one of the designated categories.
Comment: Multiple commenters opposed lowering the income limit for
fee waivers to 125 percent of the FPG as it would disqualify many
immigrants, including survivors of crime who are statutorily protected,
from receiving fee waivers for immigration benefits. Many commenters
stated that the proposed rule fails to acknowledge that immigrants,
especially survivors of crimes, often do not have access to financial
documents or proof of their income for various reasons, including
informal jobs (e.g., babysitting or yard work) that pay cash; the fact
that limited earnings do not require taxes to be filed; and that
abusers often have control of all financial documents, destroy records,
or prevent victims from attaining financial independence. One commenter
wrote that since many individuals would not fall within the proposed,
narrower financial eligibility criteria, victims of labor trafficking
may turn to jobs with exploitative employers or back to traffickers in
order to pay the fees for adjustment of status or other ancillary
forms.
Response: DHS acknowledges that some applicants may no longer
qualify for fee waivers if their income was higher than 125 percent of
the FPG but lower than 150 percent of the FPG. However, many applicants
may otherwise have income below 125 percent and, therefore, still
qualify. Consistent with the statute, this final rule specifically
permits aliens described in the TVPRA, including those seeking benefits
under VAWA, as well as T and U nonimmigrants,\47\ to request fee
waivers for ``any fees associated with filing an application for relief
through final adjudication of the adjustment of status.'' \48\ The
TVPRA provision requires DHS to allow these applicants to request fee
waivers; however, the TVPRA does not require fee exemptions or set the
FPG level for waivers. DHS declines to make changes in this final rule
in response to this comment.
---------------------------------------------------------------------------

\47\ See title II, subtitle A, sec. 201(d)(3), Public Law 110-
457, 122 Stat. 5044 (2008); INA section 245(l)(7), 8 U.S.C.
1255(l)(7).
\48\ See id.
---------------------------------------------------------------------------

b. Fee Waivers for Specific Forms
Comment: Commenters opposed eliminating the fee waiver for
naturalization, as well as lawful permanent residence, employment
authorization, and other applications. Numerous commenters opposed the
proposed elimination of fee waivers for Form I-90, Form I-765, Form I-
485, forms for applicants exempt from the public charge inadmissibility
ground, Form I-751, and naturalization and citizenship-related forms.
Response: DHS is not eliminating all fee waivers for Forms I-485
and I-765 and is allowing fee waiver requests for certain humanitarian
programs for naturalization and citizenship related forms as
applicable. See 8 CFR 106.3(a). See Table 3: Categories and Forms
Without Fees or Eligible for Fee Waivers. DHS will continue to accept
fee waiver requests from applicants who meet the requirements of INA
section 245(l)(7), 8 U.S.C. 1255(l)(7). Id. As explained in the NPRM,
the INA requires DHS to permit fee waiver requests from certain
immigrant categories and for certain forms; limiting fee waiver
requests reduces the fee increases for all immigration benefits and
places the fee costs on the benefit recipient instead of an unrelated
party.
DHS notes, however, that the law requires DHS to ``permit aliens to
apply for a waiver of any fees associated with filing an application
for relief through final adjudication of the adjustment of status for a
VAWA self-petitioner and for relief under sections 101(a)(15)(T),
101(a)(15)(U), 106, 240A(b)(2), and 244(a)(3) (as in effect on March
31, 1997).'' DHS appreciates that aliens will often file multiple
requests simultaneously or shortly after each other, including requests
for asylum, SIJ classification, T nonimmigrant status, U nonimmigrant
status, humanitarian parole, or deferred action. However, that a
request may be filed simultaneously with a status included in section
245(l)(7), 1255(l)(7), or while it is pending, does not make such a
request an ``application for relief'' ``associated with filing'' for
the purposes of fee waiver eligibility under that provision of law.
USCIS will generally reject a fee waiver request and the associated
benefit request that asserts that it is ``associated'' and eligible for
a fee waiver simply because it is simultaneous or filed while another
benefit request is pending.
DHS will not make changes to its fee waiver regulations in this
final rule in response to these comments.
Comment: A few commenters said the Form I-90 should remain fee
waivable, as the form is necessary to renew permanent resident cards.
The commenters stated that without the fee waiver, applicants would be
unable to renew their status and escape poverty. A commenter wrote that
eliminating a fee waiver option for an I-90 would be ``egregious.'' The
commenter stated that immigrants with expired legal status or
employment authorization often get caught in a vicious cycle of being
unable to prove they have permission to work, preventing them from
earning funds to cover filing fees and thus perpetuating their
inability to procure work authorization.
Several commenters stated that removing fee waivers for forms such
as the I-90 and the N-565 would prevent or significantly delay
applicants from being able to apply for and maintain employment. The
commenters stated that the change could likewise prevent applicants
from having proof of their eligibility for certain public benefits, as
many applicants, especially survivors of crime and homeless immigrants,
have primary documents that have been stolen, lost, or destroyed, often
by abusers.
Response: DHS disagrees that eliminating the fee waivers for the I-
90 would be ``egregious,'' or that it will prevent or significantly
delay applicants from being able to apply for and maintain employment.
Applicants would still be eligible to obtain proof of status, and
public benefit granting agencies have access to the Systematic Alien
Verification for Entitlements (SAVE) program which validates an alien's
immigration status. DHS declines to make changes in this final rule in
response to these comments.
Comment: A commenter wrote that children should not be subject to
fees for Form I-485 or for EAD applications while their asylum or
adjustment of status application is pending because doing so would
impose multiple hardships. The commenter stated that EADs serve as a de
facto identification document and are frequently a precursor to
obtaining access to state and federal services, as well as access to a
social security number, which is a common prerequisite for enrolling in
school, obtaining health insurance, or receiving preventative care.
A commenter wrote that senior citizens have extremely limited
financial situations but are often able to renew their Permanent
Resident cards or apply for citizenship with a fee waiver. The
commenter stated that eliminating this fee waiver, while also raising
the form fees, would put these applications out of reach.

[[Page 46817]]

Response: DHS disagrees that this final rule prevents asylees,
children, or seniors from obtaining documentation of status. Immigrants
are provided a stamp in their passports that they can use as
documentation of lawful permanent resident status upon adjustment of
status or their entry into the United States as a lawful permanent
resident. Further, an alien's LPR card, which provides documentation of
LPR status, and therefore employment eligibility, is generally valid
for 10 years. For those without approved status, applicants may use
their receipt notices to identify they have applied for the applicable
immigration status. Schools, insurance companies, and doctors' offices
should not require a permanent resident card or an employment
authorization document from a child and DHS cannot adjust the fees for
obtaining such documents based on such unofficial uses and unnecessary
requirements. Further, DHS disagrees that this final rule imposes
greater burdens on these aliens accessing public benefits or services.
Public benefit granting agencies verify the immigration status of
aliens through the SAVE program. DHS declines to make changes in this
final rule on the basis of these comments.
Comment: A commenter wrote that it is unjust to allow fee waivers
for Form I-751 for VAWA self-petitioners but not for individuals who
are submitting a waiver for joint spousal filing of Form I-751 due to
battery or cruelty by the U.S. citizen spouse. A commenter said the
petition to remove conditions on residence should remain accessible,
especially for survivors of domestic violence. Similarly, a few
commenters stated that, if USCIS were to eliminate fee waivers for Form
I-751, some victims of violence could be subject to deportation or to
the threats of their abusers.
Response: DHS recognizes the concerns of commenters and clarifies
that this final rule continues to allow an individual to request a fee
waiver when he or she is filing a waiver of the Form I-751 joint filing
requirement because they were subject to battery or extreme cruelty.
See 8 CFR 106.3(a). The term ``VAWA self-petitioner'' as defined in INA
section 101(a)(51)(C), 8 U.S.C. 1101(a)(51)(C), includes individuals
filing a waiver of the joint filing requirement based on battery or
extreme cruelty. Thus, USCIS will continue to accept requests for fee
waivers for Form I-751 when filed with a waiver of the joint filing
requirement based on battery or extreme cruelty, as provided by
statute.
Comment: A few commenters stated that eliminating fee waivers for
work authorization applications would cause further harm to asylum
seekers. At least one commenter stated that elimination of fee waivers
for asylum seekers would have a disproportionately negative impact on
the people who most need asylum. Another commenter wrote that
individuals with pending asylum cases before USCIS are required to
renew their employment authorization every year, and without fee
waivers, employment authorization filing fees would cut significantly
into their paychecks and make it more difficult for them to provide for
their families. Another commenter said USCIS should neither eliminate
the waiver of the initial filing fee for Form I-765, Application for
Employment Authorization, nor increase the filing fee. The commenter
further stated this would make it harder for asylum seekers to apply
for an EAD.
Response: DHS acknowledges the concerns of the commenters related
to asylum seekers applying for EADs. Charging a fee for adjudication
services is in line with INA section 208(d)(3), which provides that
``[n]othing in this paragraph shall be construed to require the
Attorney General to charge fees for adjudication services provided to
asylum applicants, or to limit the authority of the Attorney General to
set adjudication and naturalization fees in accordance with section
1356(m) of this title.'' Noncitizens are generally required to pay
adjudication fees, and asylum seekers, in particular, are subject to
several statutory and regulatory requirements that carefully regulate
the circumstances under which they may qualify for employment
authorization, including a mandatory waiting period before they may
even apply for employment authorization. USCIS is continuing to provide
a fee exemption for the initial Form I-765 filing for individuals who
were granted asylum (asylees) or who were admitted as refugees.
Therefore, there is no fee waiver request necessary for asylees filing
an initial Form I-765. Asylees and refugees will generally continue to
be required to pay the fee for renewal EADs. Finally, as a point of
clarification, DHS notes that, at the time of publication of this rule,
the validity period for an EAD for asylum seekers is two years (not one
year, as asserted by the commenter) which should be sufficient time for
asylum seekers to factor the required renewal EAD fee into their
budget. Therefore, for the reasons above, DHS declines to make changes
in this final rule in response to these comments.
Comment: A few commenters opposed the elimination of fee waivers,
including for Form I-765, which would unfairly limit the access to
immigration benefits for students who cannot afford their request for
employment authorization.
Response: USCIS must incur the costs of adjudicating a Form I-765
submitted by a student, and DHS does not believe it should shift that
cost to other fee payers. Moreover, certain nonimmigrant students are
required to establish the financial means to support themselves for the
duration of their stay. See 8 CFR 214.2(f)(1)(i)(B); see also 8 CFR
214.2(m)(1)(i)(B). That requirement also applies to students who are
eligible to request employment authorization for pre- and post-
completion training programs. Therefore, DHS believes that this final
rule would not cause undue burdens to student visa holders. DHS
declines to make changes in this final rule in response to these
comments.
c. Form N-400 Fee Waivers
Comment: Numerous commenters said that USCIS should maintain
existing fee waivers for naturalization applications, especially given
the proposed increase of naturalization fees. Citing a 2017 Report to
Congress, several commenters stated that naturalization is one of the
most frequently requested application types for fee waivers and that
over 500 of their clients a year would probably forgo the opportunity
to become citizens of the United States if the proposed rule were
adopted. Commenters wrote that removal of fee waivers will price many
individuals out of naturalization and would discourage individuals from
applying for fee waivers and citizenship. Citing various studies, a few
commenters detailed how fee waivers increased naturalization rates.
Citing to the USCIS Fee Waiver Policies and Data, Fiscal Year 2017
Report to Congress, USCIS (Sept. 17, 2017), a commenter stated because
of the benefits of naturalization, the naturalization application is
one of the form types most frequently associated with fee waiver
requests. Several commenters emphasized the importance of fee waivers
to naturalization, citing the number of applicants who qualify for fee
waivers through City University of New York's CUNY Citizenship Now!
program. One commenter stated that CUNY Citizenship Now!, which runs
one of the most prominent citizenship and naturalization clinics in New
York, reports that 54.8 percent of naturalization applicants they
assist qualify for fee waivers, while the same is true for 75.6 percent
of Form N-600

[[Page 46818]]

applicants and 65.8 percent for Form I-90 applicants.
An individual commented that the proposed naturalization fee
increase would prevent residents from seeking citizenship, citing data
on financial and administrative barriers as bars to naturalization.
Commenters also cited a 2018 Stanford Immigration Policy Lab study from
Hainmueller et al. in stating that the application fees discourage
naturalization. Other commenters cited the same study and stated that
offering ``fee vouchers'' increased naturalization application rates by
about 41 percent or from 37 percent to 78 percent. Several commenters
wrote that immigrants want to naturalize, citing the Migration Policy
Institute figures on rising annual rates of naturalization. Commenters
also cited a Yasenov et al. study demonstrating that the introduction
of Form I-912 waivers had the greatest impact on naturalization
applicants with low levels of income and education. A commenter cited a
surge of naturalization applications before a fee increase in 2008 as
evidence of the role of fees in naturalization decisions.
A few commenters stated that, since naturalization is one of the
form types for which fee waivers are most frequently submitted, the
change would have a profound negative impact on vulnerable immigrants,
including asylum seekers, who must naturalize to obtain legal rights. A
commenter stated that 2.1 million immigrants are eligible for
naturalization in the State of California, of whom 1 million
individuals would be severely impacted by a rise in the cost of an
application fee and 768,024 live in Los Angeles County. Other
commenters also provided figures on the numbers of immigrants eligible
for naturalization in Minnesota, and Washington. Other commenters
provided similar figures for programs in California, Michigan, Boston,
Houston, and New York. A commenter cited a Fortune article stating
that, in 2017, almost 40 percent of naturalization applications
received a fee waiver.
Commenters wrote that 9 million permanent residents are eligible
for citizenship across the United States, citing an Office of
Immigration Statistics publication, a study by Warren and Kerwin, and a
Pew Research paper. A few commenters wrote that, of these, 3 million
are under 150 percent of the FPG, 1 million are between 150 and 200
percent of FPG, and 1.7 million are between 200 and 300 percent FPG.
Another commenter cited a 2014 University of Southern California study
in concluding that over half of naturalization applicants would lose
access to waivers as a result of the proposed rule.
Some commenters wrote that without fee waivers, applicants for
naturalization would take longer to apply or not apply and this would
also hinder state and local governments' efforts to facilitate
naturalization. Some commenters stated that fee waivers have been
essential to increasing naturalization and that they pay for themselves
many times over. A commenter requested that DHS more thoroughly analyze
the costs of impeding access to naturalization, which include long-term
reduced economic and social mobility for impacted populations.
Response: DHS agrees that the naturalization application is one of
the forms affected by the limitation of the fee waivers. Fees for other
applicants and petitioners must increase to recover the cost of
adjudicating fee-waived applications and petitions. In this final rule,
DHS limits the availability of fee waivers for Form N-400 to mitigate
the additional cost burden that other fee-paying applicants must bear.
This is consistent with the beneficiary-pays principle emphasized
throughout the NPRM and this final rule. If USCIS continued to accept
fee waiver requests for Form N-400 under the previous eligibility
criteria, the fee would be higher than established in this final rule.
The reduction in the availability of fee waivers for Form N-400 is not
intended to discourage, deter, or otherwise limit access to
naturalization for any group, category, or class of individual. In
response to public comments received on the NPRM, DHS is expanding the
immigration benefit requests for which it will accept fee waiver
requests from statutorily protected populations to include Forms N-400,
N-600, and N-600K, and to certain SIJs and Afghan and Iraqi
interpreters as described elsewhere in this final rule. DHS believes
that expanding fee waiver eligibility mitigates concerns that the fee
increase for Form N-400 unduly burdens or otherwise prevents
naturalization for these populations.
DHS acknowledges that the fee for Form N-400 increases in this
final rule by more than most other forms. The large fee increase for
Form N-400 is because DHS previously held the fee for Form N-400 below
the full estimated cost of adjudication. In this final rule, DHS
emphasizes the beneficiary-pays principle and declines to hold the fee
for Form N-400 artificially low. DHS believes that increasing the Form
N-400 fee to the estimated full cost of its adjudication will alleviate
the increased burden of higher fees placed upon other immigration
benefits.
Comment: Some commenters stated that eliminating fee waivers for
naturalization and other form types most frequently associated with fee
waiver requests undermines Congressional intent. Commenters stated that
Congress has called on USCIS to keep the pathway to citizenship
affordable and accessible, and opposed the proposed elimination of fee
waivers for applicants who can demonstrate an inability to pay the
naturalization fee.
Response: USCIS appreciates the concerns of this recommendation and
fully considered it before publication. Nevertheless, DHS determined
that the current trends and level of fee waivers are not sustainable.
Work that USCIS provides for free or below cost affects other fee-
paying applicants by making their fees higher, so DHS can recover
USCIS' full cost. DHS is trying to make the USCIS fee schedule more
consistent with the beneficiary-pays principle. As shown in the
supporting documentation that accompanies this final rule, the number
and dollar value of approved fee waiver requests has remained high
during periods of economic improvement. That indicates that, as the
economy declines the number of fee waiver requests could increase to a
level that could threaten the ability of USCIS to deliver programs
without disruption. DHS declines to make changes in this final rule in
response to these comments.
Comment: A few commenters stated that the NPRM violates
Congressional intent since USCIS has not supplied any data, research,
or other actual factual evidence to show whether the current
naturalization fees would be ``a barrier to naturalization for those
earning between 150 percent and 200 percent FPG,'' let alone the effect
of the proposal to significantly increase the naturalization fees and
eliminate fee waivers.
Response: DHS is unaware of any statute that requires DHS to
document that the fees it establishes to recover USCIS' costs will not
be a barrier to naturalization. DHS has complied with the economic
analysis requirements of Executive Orders. There is no legal
requirement to comply with language in a Congressional briefing that
does not become law, aside from cooperation with the Congressional
oversight function. DHS has carefully considered Congress' view of
these issues, as well as the statutory and fiscal limitations under
which USCIS operates and declines to make changes in this final rule in
response to these comments.

[[Page 46819]]

Comment: Several commenters noted that without fee waivers many
naturalized citizens who required waivers to become citizens would not
have been able to afford to apply for naturalization and that a high
percentage of applicants currently use or apply for waivers.
Response: DHS recognizes the commenters' concerns. However, as
stated elsewhere throughout this final rule, USCIS must recover its
costs through user fees. DHS does not believe that current high levels
of fee waiver usage are sustainable. Further, DHS believes that it
would be equitable for fee-paying applicants to continue to bear the
high costs of fee waiver usage through the fees that they pay. DHS
declines to make changes in this final rule in response to these
comments.
2. Fee Waiver Income Requirements
Comment: Many commenters opposed restricting the income
requirements from 150 percent of FPG to 125 percent because such a
restriction would be unjustified, especially since no estimates were
provided as to how many people it would impact. Many commenters stated
that lowering the standard to 125 percent will negatively affect many
in cities and states across the country who are unable to pay fees and
still have a very low income. Household income does not take into
account the dramatically different costs of living throughout the
country, complex living arrangements (such as mixed-status households
or households supporting family members in another country), or the
variety of circumstances that may render individuals unable to pay
fees. One commenter stated that the income requirement would negatively
impact many individuals because even those above the 125 percent FPG
are unable to provide for their daily essentials due to the high cost
of living in Los Angeles County. A commenter went on to state that the
income standard should be tied to an inability to pay particular fees
at the time of application since fee waiver consideration is focused on
an individual's financial circumstances at that particular point.
Response: As provided in the NPRM, because of the costs of fee
waivers, and because the current fee waiver regulations are
inconsistent with the beneficiary-pays principle, DHS proposed to limit
fee waivers to immigration benefit requests for which USCIS is required
by law to consider a fee waiver or where the USCIS Director decides a
fee waiver should be available. See 8 CFR 106.3.
As the commenters point out, and as explained in the NPRM, USCIS
issued policy guidance in 2011 to streamline fee waiver adjudications
and make them more consistent across offices and form types nationwide.
See Policy Memorandum, PM-602-0011.1, Fee Waiver Guidelines as
Established by the Final Rule of the USCIS Fee Schedule; Revisions to
Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar.
13, 2011) (``2011 Fee Waiver Policy''). The 2011 Fee Waiver Policy
provided that USCIS would generally waive fees for applicants who are
receiving a means-tested benefit, have a household income at or below
150 percent of the FPG, or were experiencing financial hardship. The
2011 Fee Waiver Policy interpreted 8 CFR 103.7(c) regarding what would
be considered inability to pay and the evidence required. The 2011 Fee
Waiver Policy established the 150 percent of the FPG income level that
the commenters recommended retaining, but that policy was not binding
on USCIS officers and the three criteria were not codified as a
regulation. DHS proposed in the NPRM to codify an income level based on
the FPG that would be a binding requirement for future fee waivers.
DHS recognizes that the FPG are not responsive to differences in
the cost of living around the nation. However, DHS establishes the fee
waiver eligibility criterion of household income of less than 125
percent of FPG in this final rule because it is consistent with the
income necessary to provide an affidavit of support necessary to
sponsor an immigrant. See 8 CFR 106.3(c). Furthermore, DHS does not
generally provide special consideration for residents of a particular
geographic area.
DHS believes that these changes will make the fee increase more
equitable for all immigration benefit requests by requiring fees for
services to be paid by those who benefit. In addition, DHS believes
that making these changes to the fee waiver policy will ensure that
fee-paying applicants do not bear the increasing costs of application
fees being waived. In response to public comments received on the NPRM,
DHS is expanding the immigration benefit requests for which it will
accept fee waiver requests from statutorily protected populations to
include Forms N-400, N-600, and N-600K. Although DHS acknowledges that
the rule reduces the number of applicants eligible for fee waivers, DHS
does not agree that aliens will be prevented from filing application or
receiving immigrant benefits.
Comment: A few commenters wrote that ``equity is not a federal
policy goal'' and USCIS fails to recognize that encouraging exemptions
and waivers for individuals in vulnerable circumstances or who are
unable to pay fees would actually advance equity. The commenter stated
that 125 percent of the FPG is not an appropriate marker to whether an
individual can afford to pay a large fee on top of normal living
expenses and so the fee waiver qualification threshold should remain at
150 percent of poverty level, ``to serve as an apt indicator of whether
a potential applicant for naturalization or other benefits can afford
to support him- or herself and, in addition, to pay significant
application fees of hundreds or thousands of dollars.'' Another
commenter stated that DHS rationalized that 125 percent is an
appropriate marker for FPG because it is the minimum required to
qualify as a sponsor for an intending immigrant. The commenter stated
that these situations are not comparable because sponsoring an
immigrant may not cost very much, and sponsored immigrants are
generally authorized to work and do not actually rely upon sponsors for
subsistence. The commenter stated that in contrast, when determining
eligibility for a fee waiver, USCIS must consider whether an individual
can afford to pay a large fee on top of their normal living expenses,
and it is therefore appropriate that FPG remain at 150 percent.
Several commenters provided figures of the numbers of clients they
serve who are below the 150 percent FPG line and qualify for waivers. A
commenter specifically calculated the costs that a family at the 150
percent FPG limit would face living in Boston, writing that fee waivers
are vital to such families maintaining their immigration status or
naturalizing.
One commenter cited a study of 21 cities which showed that 33
percent of those eligible to naturalize had incomes up to 150 percent
of FPG. The study also found that 16 percent of LPRs eligible to
naturalize of Mexican origin have incomes between 150 and 200 percent
FPG, compared to 8 percent of European-origin immigrants eligible to
naturalize. The commenter used this data to support their comment that
the income requirements would reduce or eliminate access to citizenship
for all but the wealthy and privileged.
Response: The 150 percent of the FPG threshold currently used for
fee waiver eligibility is higher than the threshold used in the public
charge inadmissibility and affidavit of support contexts. DHS has
decided that limiting fee waivers to households with incomes at or
below 125 percent of the FPG is appropriate because it would be
consistent with other determinants of

[[Page 46820]]

low income or financial wherewithal used in USCIS adjudications, such
as the affidavit of support requirements under INA sections 212(a)(4)
and 213A, 8 U.S.C. 1182(a)(4) and 1183a. See 8 CFR 106.3(c). DHS
declines to make changes in this final rule in response to these
comments.
Comment: A commenter stated that USCIS should respect the rights of
veterans to petition for a fee waiver for spouses and children
regardless of income.
Response: DHS appreciates the sacrifices of members of the Armed
Forces and veterans. USCIS charges no Form N-400 fee to an applicant
who meets the requirements of INA sections 328 or 329 with respect to
military service as provided by the law. See 8 CFR 106.2(b)(3(c). In
addition, there is no Form N-600 fee for any application filed by a
member or veteran of any branch of the U.S. Armed Forces. See 8 CFR
106.2(b)(63(c). DHS proposed adjustments to USCIS' fee schedule to
ensure full cost recovery. DHS did not target any particular group, or
class of individuals or propose changes with the intent to deter
requests from any immigrants based on their financial or family
situation or to block individuals from access immigrant benefits. With
limited exceptions as noted in the NPRM and this final rule, DHS
establishes its fees at the level estimated to represent the full cost
of providing adjudication and naturalization services, including the
cost of relevant overhead and similar services provided at no or
reduced charge to asylum applicants or other immigrants. This rule is
consistent with DHS's legal authorities. See INA section 286(m), 8
U.S.C. 1356(m). DHS proposed changes in fee waiver policies to ensure
that those who benefit from immigration benefits pay their fair share
of costs, consistent with the beneficiary-pays principle as described
in the Government Accountability Office report number GAO-08-386SP. In
addition, there is no law that requires a fee waiver or exemption for
spouses or children of members of the Armed Forces or veterans. DHS
declines to make changes in this final rule in response to these
comments.
3. Means-Tested Benefits
Comment: A commenter recommended that USCIS use proof of receipt of
a means-tested public benefit as evidence to demonstrate inability to
pay the prescribed fee under the new rule.
Response: The commenter is requesting that USCIS continue to follow
guidance that USCIS issued under its previous fee waiver regulations.
Before 2010, USCIS allowed fee waiver applicants to submit requests in
a variety of ways and undertook a holistic analysis of the applicant's
finances to determine inability to pay. 75 FR 58974. In 2010, DHS
decided that the USCIS fee waiver process would benefit from
standardization. Id. By the 2010 rule DHS amended 8 CFR 103.7(c) to
provide, on a discretionary basis, fee waivers for certain services,
subject to two conditions: (1) The applicant is ``unable to pay'' the
fee; and (2) a ``waiver based on inability to pay is consistent with
the status or benefit . . . .'' 8 CFR 103.7(c)(1). DHS also required
that waiver requests be in writing and state the reasons for and
provide evidence in support of the claim of inability to pay. Id. at
103.7(c)(2). After the 2010 rule, DHS developed a new form to
facilitate the fee waiver process: Request for Fee Waiver, Form I-
912.\49\ See Agency Information Collection Activities: Form I-912; New
Information Collection; Comment Request, 75 FR 40846 (July 14, 2010).
USCIS also published the 2011 Fee Waiver Policy providing further
guidance as to adjudication of fee waiver requests. The 2011 guidance
provided that as proof of inability to pay under 8 CFR 103.7(c), USCIS
would accept: (1) Evidence of receipt of a means-tested benefit; (2)
evidence of household income at or below 150 percent of the FPG; or (3)
evidence of financial hardship.
---------------------------------------------------------------------------

\49\ The form is now called Form I-912, Request for Fee Waiver.
---------------------------------------------------------------------------

In the NPRM, DHS proposed multiple changes to the then-existing fee
waiver regulations, explained our need to and reasoning for doing so,
and in accordance with the Paperwork Reduction Act, posted the proposed
revised Form I-912, Request for Fee Waiver, and its instructions in
this final rule's docket for the public to review and comment on its
information collection requirements. See 84 FR 62296-62301, and 62356.
The proposed regulations for fee waivers provided that DHS would
provide, on a discretionary basis, fee waivers for certain services,
subject to the following conditions: (1) A waiver of fees would be
limited to aliens with annual household incomes at or below 125 percent
of the FPG; (2) a waiver of fees would not be provided to a requestor
who is seeking an immigration benefit for which he or she: Is subject
to the affidavit of support requirements under INA section 213A, 8
U.S.C. 1183a, and is already a sponsored immigrant as defined in 8 CFR
213a.1, or is subject to the public charge inadmissibility ground under
INA section 212(a)(4), 8 U.S.C. 1182(a)(4); and (3) a request for a fee
waiver must be submitted on the form prescribed by USCIS in accordance
with the form instructions. Proposed 8 CFR 106.3(d); 84 FR 62363.
DHS is adopting the general fee waiver eligibility guidelines as
proposed with a clarification. New 8 CFR 106.3. Proposed 8 CFR
106.3(d)(1) and (d)(2) (not permitting a fee waiver for a requestor who
is subject to the affidavit of support, already a sponsored immigrant,
or subject to the public charge inadmissibility ground) are not
applicable to applicants who are statutorily eligible for fee waivers
or those additional immigration benefit requests (SIV and certain SIJ
applicants) that we are making eligible for a fee waiver in this final
rule. Therefore, DHS removed those limitations from the general fee
waiver provision and included it in 8 CFR 106.3(b) governing waivers
provided by the USCIS Director. New 8 CFR 106.3.
By removing the more ambiguous term ``inability to pay'' in favor
of more clearly defined, straightforward requirements, DHS is imposing
on the fee waiver request process greater consistency and equity.
Receipt of any means-tested benefit would no longer automatically
satisfy the new regulation's requirements for demonstrating inability
to pay. USCIS has also considered if means-tested benefits that are
awarded using 125 percent of the FPG would be acceptable evidence of
the 125 percent of the FPG household income requirement in addition to
the other criteria in new 8 CFR 106.3(d). However, implementing that
criterion would require USCIS to determine the income requirements that
all jurisdictions across the United States use to determine eligibility
for each means-tested benefit. In addition, USCIS would be required to
continually monitor those requirements for any changes by individual
jurisdictions and programs. Therefore, DHS has determined that such a
policy would be unnecessarily burdensome for USCIS to administer and
decided not to revise the Form I-912 instructions to permit any usage
of a means-tested benefit as evidence for a fee waiver.
Comment: One commenter noted that using the Paperwork Reduction Act
to introduce a revised fee waiver form, with new requirements, in
October 2019 in lieu of using a NPRM and then eliminating fee waivers
in this rule, was a waste of the public's time to review both
documents. A few commenters stated that eligibility based on receipt of
a means-tested benefit was due to be

[[Page 46821]]

eliminated by the revised fee waiver form challenged in City of Seattle
v. DHS, 3:19-cv-7151-MMC (N.D. Cal., filed Oct. 31, 2019) but the court
in that case preliminarily enjoined the revised fee waiver form on a
nationwide basis, thereby affecting USCIS' plans to constrict
eligibility standards for fee waivers. Other commenters stated that
USCIS has already eliminated the means-tested benefit criterion for fee
waivers, which drastically limited access to immigration benefits, and
that the proposed rule narrows the criteria for fee waivers even
further and eliminates the financial hardship criterion entirely which
means 400,666 individuals annually would be detrimentally affected.
Another commenter stated that changes in Form I-912 and fee waiver
requirements in the NPRM are an attempt to get around the injunction of
the 2019 fee waiver rules because it eliminates fee waivers for most
applicants. The commenter stated that the proposal seeks to restrict
legal immigration and naturalization for poor and non-white people.
Another commenter recommended that while the Form I-912 revision is
enjoined by the U.S. District Court for the Northern District of
California, USCIS should request public comment on a new proposed Form
I-912 that maintains options to demonstrate qualification through
receipt of means-tested benefits, financial hardship, or income of up
to 150 percent of the FPG. The commenter wrote that USCIS is required
by the injunction to restart the information collection request
clearance process anew for a revised Form I-912 that conforms to the
Court's decision. The commenter wrote that the Form I-912 proposed with
the USCIS's November 14, 2019 NPRM does not meet the Court's
specifications, and USCIS may not move forward with implementation of
this revised Form I-912 based on the present notice-and-comment
process.''
Response: These comments refer to the effort by USCIS to revise the
USCIS policy guidance on fee waivers. On September 28, 2018, USCIS
published a 60-day notice in the Federal Register requesting comments
on the then-proposed revised Form I-912 and instructions and posted the
documents for review in docket USCIS-2010-0008 at www.regulations.gov.
See 83 FR 49120 (Sept. 28, 2018). The revisions to Form I-912, Request
for Fee Waiver, revised the evidence USCIS would consider in evaluating
inability to pay, required federal income tax transcripts to
demonstrate income, and required use of the Form I-912 for fee waiver
requests. USCIS complied with the Paperwork Reduction Act and the
Office of Information and Regulatory Affairs, OMB (OIRA) approved the
form changes on October 24, 2019.\50\ On October 25, 2019, USCIS
published the revised Form I-912 and instructions, along with
corresponding revisions to the USCIS Policy Manual and a Policy Alert.
The revised Form and Manual took effect on December 2, 2019.
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\50\ The approved package is available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201910-1615-006# (last
visited Feb. 17, 2020).
---------------------------------------------------------------------------

DHS did not consider this rulemaking's impact when undertaking the
Form I-912 revisions that took effect on December 2, 2019, because DHS
was proposing comprehensive reforms to fee waivers which were not
certain to occur and the rulemaking was separate and independent of the
form and policy change that took effect on December 2, 2019. USCIS was
forgoing hundreds of millions of dollars each year to fee waivers, and
it decided not to wait for the comprehensive DHS fee rulemaking while
it continued to forgo increasing amounts of revenue as more fees were
waived. 84 FR 26138 (June 5, 2019). Nonetheless, on December 11, 2019,
the U.S. District Court for the Northern District of California held
that the Form I-912 revisions that took effect on December 2, 2019
required notice and comment rulemaking to effectuate, and the revised
Form I-912, the Policy Manual revisions, and an October 25, 2019 Policy
Alert announcing the revisions were preliminarily enjoined nationwide.
See Order Granting Pls.' Mot. for Nationwide Prelim. Inj., City of
Seattle v. DHS, 3:19-cv-7151-MMC (N.D. Cal., Dec. 11, 2019). By
stipulation of the parties and as agreed to by the court, that
injunction will remain in place pending publication of this final rule.
The injunction in City of Seattle does not impose any requirements on
subsequent revisions of the Form I-912 nor otherwise affect USCIS's
ability to move forward with implementation of the Form I-912 revised
in accordance with the notice-and-comment process completed by this
rulemaking. In fact, the injunction in City of Seattle contemplates
that the 2019 fee waiver policy changes were lawful but for compliance
with the procedures required by the Administrative Procedure Act that
are met by publication of this final rule.
Comment: Commenters stated that proving household income through
USCIS' process is needlessly burdensome, intended to discourage
applications, and that the fee waiver application process and 125
percent FPG limit is duplicative with means-testing requirements for
other government programs where individuals have already passed a
thorough income eligibility screening by government agencies. Several
commenters specifically requested maintaining the means-tested benefits
criterion as it is the least burdensome and most accessible application
criterion for vulnerable immigrant populations.
Response: DHS understands that removing the means-tested benefit
criterion will require people to obtain different documentation than
they previously would have to establish eligibility for a fee waiver.
DHS agrees that the burden will increase but has determined that the
documentation required to establish income is the best approach to
establish eligibility. DHS does not believe that the burden that will
be imposed by the new requirements is excessive for a requestor to
receive the free adjudication of his or her immigration benefit
request. USCIS is 96 percent funded by fees and must charge fees to
cover its costs. Although the means-tested benefits criterion will no
longer be an option under the revised fee waiver regulations, eligible
applicants may request fee waivers under the criterion of having income
at or below 125 percent of the FPG. Thus, staff and volunteers at
nonprofit community organizations should already be familiar with the
remaining criterion for fee waiver eligibility. DHS has considered the
burden on applicants and those that provide them aid and determined
that the benefits of the policy change exceed the potential additional
burden. DHS disagrees that its fee waiver income requirements are
duplicative with state means-tested benefit requirements because, as
stated earlier, many public benefits have different income thresholds
for eligibility in different states. Therefore, DHS has determined that
relying on a consistent income threshold and not using a means-tested
benefits for eligibility will best provide consistency in applying the
requirements.
4. Public Charge Rule
Comment: Comments stated that DHS claims that USCIS uses 125
percent of the FPG as the standard for public charge and affidavit of
support purposes and cites 8 CFR 212.22(b)(4)(i)(A), but DHS's proposed
public charge rule is currently enjoined. The commenters state that
because of court orders, USCIS has not been using 125 percent of the
federal poverty guidelines as the standard for public charge purposes
to date, and this rule is an improper attempt to codify the enjoined
public charge rule.

[[Page 46822]]

Response: On February 24, 2020, DHS implemented the Inadmissibility
on Public Charge Grounds Final Rule nationwide after the Supreme Court
of the United States stayed the last remaining injunction.\51\ In
addition, the 125 percent of the FPG threshold is not only used in
public charge inadmissibility determinations, but also is the standard
by which the sufficiency of an affidavit of support is based, as
established by Congress under INA section 213A, 8 U.S.C. 1183a. As
provided in the NPRM, USCIS generally uses 125 percent of the FPG as
the minimum income threshold to be considered a positive factor in the
totality of the circumstances in public charge inadmissibility
determinations as the threshold. Congress also identified 125 percent
of FPG as a threshold for establishing the sufficiency of the affidavit
of support under INA section 213A, 8 U.S.C. 1183a. The threshold for
fee waiver eligibility under previous regulations of 150 percent of the
FPG was higher than the threshold used in the public charge
inadmissibility and affidavit of support context. DHS believes limiting
fee waivers to households with incomes at or below 125 percent of the
FPG, as set forth in this final rule, and aligning the fee waiver rule
with the public charge inadmissibility rule and the affidavit of
support requirements set forth in INA sections 212(a)(4) and 213A, 8
U.S.C. 1182(a)(4) and 1183a, will best provide consistency in applying
the income requirements in immigration benefit administration.
---------------------------------------------------------------------------

\51\ See Wolf v. Cook County, 140 S.Ct. 681 (2020).
---------------------------------------------------------------------------

5. Financial Hardship
Comment: One commenter wrote that the proposed elimination of fee
waiver eligibility based on extraordinary hardship (sic financial
hardship) was not explained and is alarming and unjustified. USCIS does
not acknowledge or explain its apparent decision to cease accepting
evidence or granting fee waivers related to temporary illness and
injury, recessions, bankruptcy, or any other of the myriad situations
that may render qualified people unable to pay fees but that cannot be
characterized as natural disasters. The commenter wrote that this
change would prevent deserving individuals from accessing immigration
and naturalization benefits and violate the principles of due process
that govern rulemaking and other federal administrative action.
Response: DHS believes that a provision for financial hardship is
unnecessary as past fee waivers requested using the financial hardship
criterion were minimal, accounting for only 1.2 percent of all
requests. A detailed distribution of the approved Fee Waiver Requests
can be found in the RIA. See Section D, Tables 5-8. While DHS
acknowledges that the fee adjustments established in this final rule
are not insubstantial to an applicant of limited means, DHS does not
believe that they make immigration benefits inaccessible to low income
applicants who have financial hardships. DHS is therefore not making
changes based on this comment.
6. Public Charge Ground of Inadmissibility and Affidavit of Support
Requirements
Comment: Several commenters disagreed with USCIS' claim that it
would be appropriate to restrict household income criteria to 125
percent FPG to be consistent with the public charge inadmissibility
final rule and the statutory and regulatory requirement applicable to
affidavit of support, writing that they are separate and unrelated
legal concepts. Multiple commenters opposed the proposal to make fee
waivers unavailable to applicants who are subject to the public charge
ground of inadmissibility, those who are subject to the affidavit of
support requirement under INA section 213A, 8 U.S.C. 1183a, and those
who are already sponsored immigrants. The commenters stated that the
proposal would disproportionately harm low- and moderate-income
families, including many immigrant survivors and their children. Many
commenters stated that most family-sponsored immigrants must supply an
affidavit of support regardless of income. They stated that, because
the affidavit of support contract terminates only after specific
criteria are met (e.g., sponsored immigrant becomes a U.S. citizen,
dies, or departs the United States), barring these immigrants from
receiving fee waivers would result in an additional barrier for low-
income immigrants regardless of their actual need and would have a
disproportionate effect on low-income Asian immigrants and U.S.
citizens of Asian descent, especially as most Asian immigrants become
permanent residents through family sponsorship and require affidavits
of support. A commenter wrote that the proposal will further punish
people who have the misfortune of poor health, are struggling to
survive, and have chronic, severe pain. The commenter wrote that such
individuals are too sick to work full-time and require an affidavit of
support from family members or friends. A few commenters expressed
worry that barring fee waivers for individuals subject to the public
charge ground of inadmissibility would add more strain on an already
overburdened legal service providers to low-income immigrants,
resulting in a general decrease in capacity of pro bono services. A few
commenters stated that there is no burden on USCIS to continue
processing fee waiver applications for immigrants subject to affidavit
of support nor any basis to disqualify those subject to affidavits of
support from receiving fee waivers.
Response: DHS agrees that, in general, family sponsored immigrants
are subject to the public charge ground of inadmissibility and are
required to submit a sufficient affidavit of support under INA section
213A, 8 U.S.C. 1883a, and therefore may not be eligible to request a
fee waiver under this final rule. The NPRM generally limited fee waiver
eligibility to those statutorily eligible for fee waivers, which are
limited to VAWA, T, U and TPS applicants. Family and employment related
benefit requests were not generally included as being eligible for fee
waivers in the NPRM. As discussed in the NPRM, under IIRIRA, certain
immigrant categories are required to submit an enforceable affidavit of
support executed by a sponsor.\52\ Although sponsors are not required
to assist an alien with fees associated with immigration benefits,
sponsors generally must demonstrate that they are able to maintain the
sponsored alien at an annual income of not less than 125 percent of the
FPG.\53\ INA section 213A, 8 U.S.C. 1183a, formalized requirements of a
legally enforceable affidavit of support, specified who is eligible to
be a sponsor, which aliens require an Affidavit of Support Under
Section 213A of the INA, the scope of a sponsor's obligations, and how
the affidavit may be enforced.\54\ These provisions were intended to
``encourage immigrants to be self-reliant in accordance with national
immigration policy.'' \55\ DHS believes it is inconsistent with the
affidavit of

[[Page 46823]]

support requirements to allow this population to request fee
waivers.\56\
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\52\ See INA sections 212(a)(4) and INA 213A, 8 U.S.C.
1182(a)(4), and 1183a. See also Div. C, Title V of Public Law 104-
208, 110 Stat. 3009, 3009-670 (September 30, 1996).
\53\ See INA section 213A. A sponsor who is on active duty
(other than active duty for training) in the U.S. armed forces and
who is petitioning for a spouse or child only has to demonstrate the
means to maintain an annual income equal to at least 100 percent of
the FPG.
\54\ See INA section 213A, 8 U.S.C. 1183a. See Section 551 of
the IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).
\55\ See H.R. Rep. 104-828, at 241 (Sept. 24, 1996) (Conf.
Rep.).
\56\ See Div. C, Title V of Public Law 104-208, 110 Stat. 3009,
3009-670 (September 30, 1996).
---------------------------------------------------------------------------

Further, the current fee waiver regulation allows people who are
applying for immigration benefits for which a public charge
inadmissibility determination is not made--advance permission to enter
as a nonimmigrant, a waiver for passport and/or visa, adjustment of
status, or a waiver of the grounds of inadmissibility--to file a fee
waiver request. See 8 CFR 103.7(c)(4) (stating that certain fees may be
waived ``only for an alien for which a determination of their
likelihood of becoming a public charge under section 212(a)(4) of the
Act is not required at the time of an application for admission or
adjustment of status'').
The rule provides that an alien who is subject to the affidavit of
support requirements under INA section 213A, 8 U.S.C. 1183a, or is
already a sponsored immigrant as defined in 8 CFR 213a.1 unless the
applicant is seeking a waiver of the joint filing requirement to remove
conditions on his or her residence based on abuse; or subject to the
public charge inadmissibility ground under INA section 212(a)(4), 8
U.S.C. 1182(a)(4) is not eligible for a fee waiver. See New 8 CFR
106.3(b). DHS declines to make any changes in this final rule in
response to these comments.
Comment: One commenter stated that the proposal would place an
unnecessarily cumbersome requirement on those who are already receiving
some form of assistance and require additional assistance in order to
improve their immigration status. Another commenter stated that many
survivors of crime and domestic violence would be negatively impacted
because many survivors receive CalWORKS, a California public benefits
program.
A commenter stated that the proposal is unfair and discriminatory
because it could severely affect the naturalization process based on
receiving public benefits, even if this occurred years before an
application for citizenship. The commenter also stated that temporary
assistance in a time of hardship should not be an opportunity for any
country to deny its people the path to citizenship.
Response: This final rule does not prevent individuals from
requesting or receiving any public benefits, as defined in, PRWORA, 8
CFR 212.21(b), or other provision, for which they are eligible.
Further, this final rule does not consider the receipt of public
benefits as part of the eligibility requirements. Instead, DHS would
look to the immigrant or nonimmigrant category the alien holds or is
seeking and their income in order to determine whether he or she
qualifies to submit a fee waiver request.
DHS notes that VAWA self-petitioners as defined under INA section
101(a)(51) and anyone otherwise self-petitioning due to battery or
extreme cruelty pursuant to the procedures in section 204(a), 8 U.S.C.
1101(a)(51) and 1154(a), T nonimmigrants, U nonimmigrants, battered
spouses of A, G, E-3, or H nonimmigrants, battered spouses or children
of a lawful permanent resident or U.S. citizen as provided under INA
section 240A(b)(2), and TPS applicants are generally not subject to the
public charge inadmissibility provision or the affidavit of support
requirements. Therefore, under this final rule, these applicants are
not precluded from requesting a fee waiver. See 8 CFR 106.3.
Furthermore, certain Special Immigrant Juveniles and Afghan and Iraqi
translators are also not precluded from requesting a fee waiver under
this final rule, as they are not subject to the public charge
inadmissibility determination or the affidavit of support
requirement.\57\ Id. DHS has updated the provision to clarify these
aliens are not subject to these eligibility requirements. See new 8 CFR
106.3(c).
---------------------------------------------------------------------------

\57\ See INA sections 212(a)(4) and 213A,8 U.S.C. 1182(a)(4) and
1183a. See also 8 CFR 212.23(a)(4) and (10).
---------------------------------------------------------------------------

Comment: Multiple commenters said that, because abusive spouses may
be the sponsor holding the affidavits of support, it was critical to
keep fee waivers available to those subject to the affidavit of support
under INA section 213A, 8 U.S.C. 1183a. The commenter wrote that doing
so would help ensure that immigrant survivors are not compelled to
return to their abusers to seek immigration benefits.
Response: An applicant under the VAWA provisions is generally not
subject to the affidavit of support requirements.\58\ In addition, fee
waiver requests do not require information regarding the income of an
abusive spouse. DHS believes that its continued provision of fee
waivers for VAWA, T, and U categories mitigates any concerns that
changes to fee waiver eligibility will unduly burden or otherwise harm
the victims of abusive spouses. See Table 3: Categories and Forms
Without Fees or Eligible for Fee Waivers. DHS declines to make changes
in this final rule in response to these comments.
---------------------------------------------------------------------------

\58\ See INA section 212(a)(4)(E)(i), 8 U.S.C. 1182(a)(4)(E)(i).
See also 8 CFR 212.23(a)(20).
---------------------------------------------------------------------------

7. Discretionary Fee Waivers
Comment: Several commenters opposed narrowing discretionary
authority that would prevent many family-based immigrants from
receiving fee waivers and would disadvantage recipients of certain
humanitarian benefits, such as Special Immigrant Juveniles (SIJs) and
Cuban Adjustment Act applicants.
Some commenters said the proposed limitations on the Director's
discretion to grant fee waivers are arbitrary and unsupported by any
evidence. The commenters stated that no explanation, data, or examples
were provided indicating why the concern over the Director having too
much discretion requires changing well-established precedent. Another
commenter stated that the rule does not provide a basis for the
guidelines of how the Attorney General shall determine which designated
group of victims of calamities will be granted access to fee waivers.
Response: In this final rule, DHS retains the authority in the
regulations for the Director of USCIS to waive any fee if the Director
determines that such action is an emergent circumstance, or if a major
natural disaster has been declared in accordance with 44 CFR part 206,
subpart B. DHS notes that the Director's discretionary provision has
never been and is not intended for whole categories of aliens to
request fee waivers directly to the Director. See 75 FR 58974
(encouraging those who believe that they have a sufficiently
sympathetic case or group of cases in any type of benefit request to
submit a request to their USCIS local office for a waiver under 8 CFR
103.7(d)). The discretionary provision is meant to provide for discrete
and limited fee waivers when there are emergent circumstances. See 75
FR 33464. DHS has further consolidated the Director's discretionary
provisions as it is not limited by category but is also not intended to
allow for individual applications from broad categories of individuals.
In addition the provisions regarding eligibility were consolidated to
clarified who may not qualify based on the alien being subject to the
affidavit of support requirements under section 213A of the Act or
already a sponsored immigrant as defined in 8 CFR 213a.1 (unless the
applicant is seeking a waiver of the joint filing requirement to remove
conditions on his or her residence based on abuse), or being subject to
the public charge inadmissibility ground under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4).

[[Page 46824]]

Further, DHS does not believe that the rule disadvantages
recipients of humanitarian benefits. For example, DHS believes that the
imposition of a fee or a lack of a fee waiver does not infringe upon
the ongoing protections offered by the Cuban Adjustment Act of 1966
(CAA). The CAA allows Cuban natives or citizens living in the United
States who meet certain eligibility requirements to apply to become
lawful permanent residents.\59\ Applicants under the CAA have
previously paid fees. Under the CAA, a native or citizen of Cuba who
has been inspected and admitted or paroled into the United States and
who has been physically present in the United States for at least one
year may apply for permanent residency in the United States. An alien
under the CAA submits Form I-485, Application to Register Permanent
Residence or Adjust Status, and does not need to file a visa petition
or have an immigrant visa immediately available to him or her.\60\
Generally, when an alien has a pending Form I-485, he or she may apply
for employment authorization by filing a Form I-765, Application for
Employment Authorization.\61\ For this reason, DHS believes that aliens
who benefit from the CAA have unique advantages compared to other
humanitarian populations, such as asylum seekers, who may have to wait
months or years before being eligible to apply to become a lawful
permanent resident. The CAA does not prohibit the charging of fees for
applicants, and DHS believes that the imposition of a fee or a lack of
a fee waiver does not infringe upon the ongoing protections that the
CAA affords to qualified individuals.
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\59\ See https://www.uscis.gov/greencard/caa (last accessed 03/
10/2020).
\60\ See Public Law 89-732 (1966).
\61\ See https://www.uscis.gov/greencard/caa (last accessed 03/
10/2020).
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As provided in the NPRM, USCIS will continue to notify the general
public of eligibility for fee waivers for specific forms under 8 CFR
106.3 through policy or website updates. Individuals who may qualify
for such a fee waiver will still need to meet the requirements to
request a fee waiver as provided in 8 CFR 106.3(b) and (d).
As discussed above, in response to commenters' concerns, DHS will
allow petitioners for and recipients of SIJ classification who, at the
time of filing, have been placed in out-of-home care under the
supervision of a juvenile court or a state child welfare agency, to
submit requests for fee waivers for Form I-485 and associated forms, as
well as Forms N-400, N-600, and N-600K. See Table 3: Categories and
Forms Without Fees or Eligible for Fee Waivers.
Comment: A few commenters wrote that, at a minimum, USCIS should
allow a proactive application process for discretionary fee waivers.
These would allow individuals to alert USCIS to their need for a waiver
of an application fee rather than having to wait to receive an
invitation from USCIS first.
Response: DHS has clarified the USCIS Director's fee waiver
provision at 8 CFR 106.3(b) and 106.3(c) in this final rule because it
was not necessary to have a separate section authorizing the Director
to waive fees for groups or individuals. See new 8 CFR 106.3(b).
Proposed 8 CFR 106.3(c) could be used to grant group or individual fee
waivers, thus proposed 8 CFR 106.3(b) was redundant. As provided in new
8 CFR 106.3(b), the Director of USCIS may authorize the waiver, in
whole or in part, of a form fee required by 8 CFR 106.2 that is not
otherwise waivable under this section, if the Director determines that
such action is an emergent circumstance, or if a major natural disaster
has been declared in accordance with 44 CFR part 206, subpart B. New 8
CFR 106.3(b) authorizes the Director to designate a group eligible for
fee waivers as appropriate. As previously indicated, DHS notes that the
Director's discretionary provision has never been and is not intended
for whole categories of aliens to request fee waivers directly to the
Director. See 75 FR 58974. Although many applicants may believe they
personally need a waiver of an application fee, the discretionary
provision is meant to provide for discrete and limited fee waivers when
there are emergent circumstances and the other eligibility requirements
are met. Therefore, DHS is maintaining the provision that individuals
may not directly submit requests for fee waivers to the USCIS Director.
Comment: The commenter stated that the proposal to make Form I-765
fee waivers discretionary for affirmative asylum seekers may cause
additional burdens for low-income households.
Response: DHS acknowledges the commenter's concern; however, as
stated in the NPRM and in this final rule, fee waivers for the Form I-
765 will not be available to asylum seekers. See 84 FR 62296-62301.
USCIS is continuing to provide a fee exemption for the initial Form I-
765 filing for individuals who were granted asylum (asylees) or who
were admitted as refugees. Therefore, there is no fee waiver request
necessary for asylees filing an initial Form I-765. Asylees and
refugees will generally continue to be required to pay the relevant fee
for renewal EADs. As indicated previously, DHS has clarified the
provisions regarding the USCIS Director's discretion as it relates to
fee waivers in 8 CFR 106.3(b), as the individual provision in the
proposed 8 CFR 106.3(b) was redundant.
8. Fee Waiver Documentation
Comment: A commenter recommended that USCIS expand the types of
documentary evidence accepted in support of fee waiver applications.
Several commenters stated that applicants should not be required to
procure additional new documents, such as federal tax transcript, to
demonstrate household income. The commenters stated that, obtaining a
transcript would substantially complicate the process of applying for a
fee waiver because individuals may not have access to a computer and
several days to six weeks or more may be required to wait on delivery
via the mail. Some commenters indicated that the proposal creates a
burdensome new requirement that many applicants will be unable to meet,
either because it's too difficult to obtain the documentation or
because they were too poor to file taxes with a foreign government.
Response: USCIS currently requests copies of income tax returns
from applicants requesting fee waivers. Tax transcripts are easily
requested through the Internal Revenue Service (IRS) website or paper
filing and are free to taxpayers. USCIS cannot accept incomplete copies
of tax returns or copies that are not signed or submitted to the IRS to
support fee waiver requests, because they may not validly reflect the
applicant's household income. USCIS believes that the proposed change
will reduce its administrative burden for fee waiver processing and
reduce the number of fee waiver requests that are rejected because of
improper documentation, inadequate information, and no signatures for
household members. In terms of the non-filing letter from the IRS,
USCIS is concerned about not receiving documentation of no-income.
Therefore, obtaining information from the IRS in transcripts, a W-2, or
proof of non-filing, if applicable, is sufficient documentation to
establish the necessary income or no income. DHS believes that, while
this might place a small additional burden on applicants, the change
will ultimately benefit applicants by mitigating future rejections and
ensuring that fees are waived for deserving applicants.
Comment: A commenter stated the proposed changes would increase the

[[Page 46825]]

inefficiencies in processing fee waiver requests, place an unnecessary
burden on the Internal Revenue Service (IRS) for requests for
documentation from immigrants, and add burden on USCIS increasing the
complexity of adjudicating fee waiver requests. Plus, USCIS would need
to continuously track the IRS transcript request processes.
Response: As part of its regular operations, the Internal Revenue
Service (IRS) provides customer service including providing tax
transcripts. Tax transcripts can be obtained by calling the IRS or
submitting a request online, through the mail or by fax. As the IRS,
and other federal, state, and local agencies regularly provide
information and services to their customers as part of their daily
operations, the proposed form changes should have a minimal impact on
them. The Department of the Treasury was provided with the proposed and
final rule to review, and they did not object to the requirement for
the tax transcript.
Comment: A commenter stated that requiring separate fee waiver
submissions for derivative family members was overly burdensome and
provided USCIS data to demonstrate that survivors applying for
humanitarian protections frequently included derivative family members
in their applications. Many commenters stated that requiring each
applicant to submit their own form when applying for fee waivers
imposes a large, duplicative burden on applicants. Commenters
recommended that family members should be allowed to continue
submitting a single fee waiver application with all relevant
information collected in one location. Another commenter said survivors
applying for humanitarian protections frequently included derivative
family members in their applications and provided USCIS data to
demonstrate this fact.
Response: Over 90 percent of the fee waiver requests filed were for
individual applicants \62\ and many other forms are already required to
be submitted individually. Therefore, DHS does not believe that
requiring Form I-912 for each applicant or petitioner in a household
will unduly burden applicants. The change will reduce the number of fee
waiver requests that are rejected for failure to obtain all signatures
of included family members. DHS has determined that the benefit of
fewer rejections exceeds the small increase in burden that this change
may add for a small percentage of fee waiver requests.
---------------------------------------------------------------------------

\62\ See Tables 10-11. Distribution of Total Approved Applicants
per Fee Waiver Request (Form I-912) in the RIA.
---------------------------------------------------------------------------

Comment: A commenter recommended that USCIS continue to allow use
of applicant generated, non-form fee waiver requests and objected to
option of a written statement being eliminated for Form I-918, Petition
for U Nonimmigrant Status.
Response: Adjudicating ad hoc fee waiver requests has proven to be
difficult for USCIS due to the varied quality and information provided
in ad hoc letter requests. Form I-912 is easy to complete, and it
provides standardization that will assist USCIS in our review of
requests. In addition, there is no filing fee for Form I-918.
Therefore, DHS declines to make changes in this final rule in response
to this comment and will require submission of Form I-912 to request a
fee waiver.
9. Cost of Fee Waivers
Comment: Many commenters stated that DHS' application of the
beneficiary-pays principle is arbitrary, capricious, unsupported, and
unjustified. Commenters indicated that restricting the income
requirements from 150 percent of FPG to 125 percent is unjustified,
especially because DHS did not estimate how many people the change
would affect. Multiple commenters opposed the beneficiary-pay model as
it would not be a fair or just system, writing that it ignores the
inequities that exist across incomes and that the ability-to-pay model
has been working for years. A commenter wrote that DHS' justification
that the use of fee waivers haves increased in a good economy was
faulty, writing that DHS cited statistics for USCIS fee waivers from FY
2008 to 2011--a period of economic recession. Another commenter said
that DHS' argument that fee waivers have become too costly to sustain
fails to account for recent fee increases or indicate whether fee
waiver volume has changed. The commenter wrote that fee waivers between
2016 and 2017 did not increase and the NPRM does not acknowledge the
recent decline in fee waivers in FY 2018.
Response: DHS explained in the NPRM that fee waivers had increased
to unmanageable levels and that DHS had to do something to curtail the
amount of free services being provided by USCIS. In prior years, USCIS'
fees have given significant weight to the ability-to-pay principle and
shifted the costs of certain benefit requests to other fee payers. In
the FY 2016/2017 fee rule, DHS noted that the estimated annual forgone
revenue from fee waivers and exemptions has increased markedly, from
$191 million in the FY 2010/2011 fee review to $613 million in the FY
2016/2017 fee review.\63\ See 81 FR 26922 and 73307. In the FY 2016/
2017 NPRM, DHS estimated that the increase in fee waivers accounted for
9 percent of the 21 percent weighted average fee increase. See 81 FR
26910. In the same NPRM, DHS provided notice that in the future it may
revisit the USCIS fee waiver guidance with respect to what constitutes
inability to pay under 8 CFR 103.7(c). See 81 FR 26922.
---------------------------------------------------------------------------

\63\ Since USCIS includes a projection for fee waivers/fee
exemptions when setting its fees to recover full cost, it does not
forgo revenue unless the total dollar amount of actual fee waivers/
fee exemptions exceeds the projected amount that was included in the
fee setting process. The dollar amount of actual fee waivers/fee
exemptions in excess of the projected amount included in the fee
setting process is considered foregone revenue.
---------------------------------------------------------------------------

In this final rule, DHS is aligning USCIS' fees more closely to the
beneficiary-pays principle. Without the changes to fee waiver policy
implemented in this final rule, fees would increase by a weighted
average of 30 percent, which is 10 percent more than in the fee
schedule implemented in this final rule. In an effort to mitigate the
total weighted average fee increase and preserve equitable distribution
of costs for adjudication and naturalization services, DHS declines to
make changes in this final rule in response to the comment.
Comment: Some commenters stated that USCIS' justification to make
the fee schedule more equitable with the beneficiary-pays approach
fails to consider the effect on applicants or benefits resulting from
fee waivers. A few commenters stated that setting fees at full cost
recovery would be inadequate as it does not take into account the
benefits side of the equation, such as the added earnings of
citizenship relative to prior earnings as a legal immigrant. The
commenters stated that including benefits would show that all costs are
indeed paid and covered.
A few commenters wrote that USCIS has taken actions that increase
operating costs (e.g., extreme vetting, re-interviewing individuals,
enhanced background checks, decrease in staffing) which the department
now seeks to pass onto the public via the beneficiary-pays principle
and by eliminating fee waivers.
Response: Consistent with historical practice, this final rule sets
fees at a level to recover the estimated full operating costs of USCIS,
the entity within DHS that provides almost all immigration adjudication
and

[[Page 46826]]

naturalization services. See Homeland Security Act of 2002, Public Law
107-296, sec. 451, 116 Stat. 2142 (Nov. 26, 2002) (6 U.S.C. 271). The
statute authorizes recovery of the full costs of providing immigration
adjudication and naturalization services. As provided in the NPRM and
RIA, the fees account for all anticipated operational costs and
adjudicative actions based on the best information available at the
time USCIS conducted the FY 2019/2020 fee review.
DHS considered the effects of the revised fee schedule on
applicants and petitioners, as documented in the RIA, Final Regulatory
Flexibility Analysis (FRFA), SEA and relevant sections of this final
rule. As noted elsewhere in this preamble, DHS is not required to
conduct a cost-benefit analysis of the impacts on all applicants of
each change in a fee or change in USCIS fees or fee-related
regulations. As stated elsewhere in this preamble,\64\ DHS is required
by OMB Circular A-4 to include all total projected costs, benefits, and
transfers annualized and monetized over a specified implementation
period, which for this final rule is 10 years. The final rule intends
to merely recover the estimated full cost to USCIS of providing
immigration adjudication and naturalization services, including
services provided without charge to asylum applicants and other
immigrants.
---------------------------------------------------------------------------

\64\ Section IV A, Statutory and Regulatory Requirements,
Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review), and
Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs).
---------------------------------------------------------------------------

However, this rule sets fees to offset USCIS costs to provide
immigration adjudication and naturalization services at an adequate
level. DHS anticipates that applicants and petitioner will consider the
potential benefits, including the potential for increased earnings as
noted by the commenter, weigh those benefits against the cost of
applying, including the fee, and decide if the benefits outweigh the
costs. DHS believes that many LPRs will determine that the benefits of
naturalization, including the prospect of additional earnings, exceed
the cost of the fee for Form N-400.
Comment: Another commenter wrote that there are errors and a lack
of supporting documentation in the NPRM. They stated that this lack of
information made it impossible to verify or understand calculations
that USCIS relies on to justify the proposed changes to the fee
waivers. The commenter provided the following examples and criticisms:
``In the FY 2019/2020 fee review, USCIS determined that
without changes to fee waiver policy, it would forgo revenue of
approximately $1,494 million.''--supporting document states foregone
revenue for 2017 was $367,243,540.
``The proposed fee schedule estimates $962 million forgone
revenue from fee waivers and fee exemptions.''--no supporting
documents.
``The difference in forgone revenue is $532 million.''--no
supporting documents.
``Without changes to fee waiver policy, fees would
increase by a weighted average of 31 percent, which is 10 percent more
than in the proposed fee schedule.''--no supporting documents.
``As shown in the supporting documentation for this rule,
the number and dollar volume of fee waiver requests and foregone
revenue has trended upward during periods of economic improvement. That
indicates that, should the economy worsen, the number of fee waiver
requests will increase to a level that could threaten the ability of
USCIS to deliver programs without disruption.''--While there is
supporting documentation for this statement, its meaning is unclear as
no analysis is given comparing the fee waiver usage to economic
performance.
``In the FY 2016/2017 fee rule, DHS noted that the
estimated annual forgone revenue from fee waivers and exemptions has
increased markedly, from $191 million in the FY 2010/2011 fee review to
$613 million in the FY 2016/2017 fee review.''
USCIS miscalculated the surcharge needed to add onto other
fees to make up for lost revenue.
Response: All examples cited by the commenter do not directly
impact fee calculations. Rather, they are byproduct estimates of
multiple operational data elements including fees, workload receipts,
and fee-paying receipts. Additional information on the historical
dollar value of approved fee waiver requests is located in the
supporting documentation that accompanies this final rule.
Additionally, DHS used the best available information at the time it
conducted the FY 2019/2020 fee review to calculate fees and does not
calculate a surcharge to add onto other fees. Instead, it estimates the
total cost of performing USCIS' anticipated workload by form and
divides those costs by the estimated fee-paying volume for each form.
Regarding the commenter's question about the volume of fee waiver
requests increasing during periods of a good economy, as indicated in
the NPRM, DHS determined that the current trends and level of fee
waivers are not sustainable. As shown in the supporting documentation
that accompanies this final rule, the number and dollar value of
approved fee waiver requests has remained high during periods when the
U.S. economy was improving. As the economy worsens, the number of fee
waiver requests could increase to a level that could threaten the
ability of USCIS to deliver programs without disruption. DHS declines
to make changes in this final rule in response to these comments.
Comment: One commenter wrote that USCIS data is incomplete as it
only shows fee waiver trends through FY 2017 and requested the data on
fee waiver approval rates for the past two fiscal years be released.
Response: The NPRM contained information USCIS had available at the
time it conducted the FY 2019/2020 fee review. It provides more than
adequate data upon which to base the fee waiver regulatory changes made
in this final rule. However, in response to the commenter and to
demonstrate that fee waiver levels remain high, DHS has included FY
2018 and FY 2019 fee waiver data in the supporting documentation that
accompanies this final rule for informational purposes. DHS has also
included the actual dollar value of approved fee waiver requests for FY
2013-FY 2019.
10. Changes to Form I-912, Request for Fee Waiver
Comment: One commenter recommended that USCIS revert to and retain
the previous version of Form I-912 (03/13/2018 edition).
Response: DHS declines to revert to the previous version of the
form as this final rule establishes revised criteria for eligibility.
The Form I-912 version submitted with this final rule incorporates the
relevant provisions.
Comment: One commenter recommended that USCIS restore helpful
language in instructions and forms that clarifies that applicants need
only meet one of multiple possible grounds of qualification for a fee
waiver and clarify that applicants only need to provide documentation
for one basis. A commenter also noted that the proposed Form I-912
contains provisions that are difficult to understand, citing the
request for applicants to include ``a receipt number'' (Part 1,
Question A) as an example. One commenter recommended that Part 1.
Question 1.A's instruction should be changed to, ``[i]f available,
provide the receipt number'' as the applicant may not yet have a
receipt number.

[[Page 46827]]

Response: DHS clarified the provision regarding the basis of
eligibility for a fee waiver by indicating that the applicants should
select the basis for qualification. DHS added a clarification to the
form to indicate that the receipt number is only required if the
applicant has already been provided with a receipt number.
Comment: One commenter stated that Part 1, ``Question 1.B's new
guidelines allowing fee waivers for those impacted by a disaster are
unclear. The form states in Part 1 that in order to be eligible, these
applicants must have an annual household income at or below 125 percent
of the FPG. They must then provide information about their income in
Part 3, discussed in more detail below. However, in Part 3, number 11
they are asked to provide information about their expenses, debt, or
losses incurred in the disaster. It is unclear why this additional
information is needed, if the applicant has already been required to
document their income at or below 125 percent of the FPG. This
information request does not fit into the eligibility guidelines based
on income and is not relevant to USCIS' adjudication. We recommend
either deleting item 11 in Part 3, or expanding the eligibility
guidelines to include financial hardship for those impacted by a
disaster who are unable to document low income. The same commenter
later noted that ``Question #11 is redundant, as stated above, and we
recommend that it be deleted.''
Response: DHS agrees that an applicant or petitioner impacted by a
disaster who is otherwise eligible for a fee waiver would only need to
provide documentation of income at or below 125 percent of the FPG and
would not need to provide evidence of expenses, debt, or losses
incurred in the disaster. DHS has removed the additional question from
the form.
Comment: One commenter stated that Part 3 asks for gross income,
but neither the form nor the instructions define the term. `Gross
income' needs to be explained, especially for those who are not able to
simply refer to the ``gross income'' line on their tax return. We
recommend that USCIS define `gross income' on the form just below the
heading for Part 3 and in the corresponding instructions. The commenter
also recommends that Part 3., Question 6 explicitly instruct applicants
where to find their gross income.
Response: Gross income includes wages, dividends, capital gains,
business income, retirement distributions as well as other income
without any adjustments.\65\ This clarification has been added to Form
I-912 instructions.
---------------------------------------------------------------------------

\65\ See IRS, Definition of Adjusted Gross Income, available at
https://www.irs.gov/e-file-providers/definition-of-adjusted-gross-income (last visited March 7, 2020).
---------------------------------------------------------------------------

Comment: One commenter recommended increasing the chart in Part 3.,
Question 4 from four (4) spaces total for listing household members to
six (6) spaces, along with instructions above the chart for what to do
if the applicant needs more spaces. Alternatively, they also recommend
providing the chart again in Part 7. for those who need more space to
list household members.
Response: Requestors should use the Additional Information section
if more space is required. DHS is not modifying the form in response to
this comment. Adding additional charts or rows will unnecessarily
increase the form length.
Comment: Commenters recommended explicitly instructing applicants
that they need to attach a copy of their federal income tax
transcripts.
Response: DHS has added an additional form instruction to indicate
that requestors should provide income tax return transcripts.
Comment: One commenter stated that Part 3., Question 10 ``is a
catch-all for describing special circumstances. Applicants could easily
miss it. We recommend adding a new item number after 10 for those who
have no income or are homeless to describe their circumstances, e.g.,
`[i]f you have no income and/or are homeless, you may use this space to
provide additional information.' ''
Response: To limit the burden on applicants, DHS will not be adding
a question. However, question 10 has been updated to clarify that the
space may be used for additional information which may include a
statement about lack of income. Although a homeless person without
income would generally qualify for a fee waiver based on income at or
below 125 percent of the FPG, being homeless does not make an applicant
eligible for a fee waiver.
11. Suggestions
Comment: A few commenters suggested alternatives to narrowing the
requirements for fee waivers and changing their standards of evidence
including limiting fee waivers allowed for specific applications (for
example the first 25,000 fee waivers for Form I-90), have a lottery for
fee waivers (for example: For those paying with credit card they can be
entered in a lottery and if chosen the application is free, if not,
then the card will be charged); offer fee reductions; and lower the
threshold to 150 percent or 175 percent instead. A few commenters
stated that partial fee waivers, with mechanisms such as reduced fees,
sliding scale fee schedules, and family caps, should be used to
facilitate applications from low- and middle-income immigrants. Several
commenters wrote that USCIS should retain the previous fee waiver
eligibility criteria.
Response: DHS recognizes that filing fees are a burden for some
people of limited financial means. However, as previously stated, the
cost of fee waivers and reduced fees are borne by all other fee payers,
because they must be transferred to those who pay a full fee to ensure
full cost recovery. DHS believes that it is more equitable to base fees
on the beneficiary-pays principle. Thus, USCIS takes a relatively
careful position with respect to transferring costs from one applicant
to another through the expansion of fee waiver eligibility and
discounting fees. To set fees at various levels based on income, as
suggested by the commenter, would require deviation from the underlying
fee-setting methodology and require some of the costs for those
applications to be reassigned to other benefit requests. Therefore, DHS
did not incorporate a reduced fee, sliding scale, or family cap in this
final rule or the other suggestions provided by commenters.
Comment: Others suggested USCIS set a higher limit of at least 200
percent instead of 125 percent FPG.
Response: DHS will not adopt the suggestion to increase the income
requirement to 200 percent of the poverty line. As previously
discussed, DHS selected the 125 percent of the FPG threshold as it is
consistent with the income threshold in other areas related to
immigration benefit adjudication, the public charge inadmissibility
rule, and affidavit of support requirements under INA section 213A, 8
U.S.C.1183a, and 8 CFR 212.22(b)(4).

F. Comments on Fee Exemptions

Comment: One commenter opposed USCIS' proposal to remove most fee
exemptions and to formalize limits to its discretion to provide fee
exemptions. The commenter stated that USCIS failed to provide any
rationale to justify this regulatory constraint. The commenter said
narrowing the regulatory authority of the Director of USCIS to receive
requests and waive fees for a case or specific class of cases would
unnecessarily tie the hands of future policymakers. The commenter also
stated that it is unclear how this

[[Page 46828]]

authority would be exercised and how USCIS would adequately publicize
any such exercise of discretion.
Response: DHS authorized the USCIS Director to approve and revoke
exemptions from fees or provide that the fee may be waived for a case
or class of cases that is not otherwise provided in 8 CFR 103.7(c) in
2010. See old 8 CFR 103.7(d); 75 FR 58, 961, 58990. Since then, that
provision has been implemented effectively without providing publicly
available guidance for how a person may request that the Director
exercise that authority for an individual who feels like he or she is
worthy of special consideration by the Director. USCIS receives several
million fee-paying requests per year and to permit an individual to
request a fee waiver from the Director using authority that may only be
delegated to one other person could result in an unmanageable level of
requests. USCIS has approved waiver eligibility and group exemptions in
the case of natural disasters or significant USCIS errors. DHS
explained in the proposed rule that it was concerned that the current
authority provides too much discretion to a future Director to expand
fee exemptions and waivers beyond what may be fiscally sound and
shifting burden to just a few fee payers. In the 2010 fee rule, DHS
stated that it thought the limits that it was imposing in that rule on
fee waivers would ensure that fee waivers are applied in a fair and
consistent manner, that aliens who are admitted into the United States
will not become public charges, and that USCIS will not shift an
unreasonable amount of costs to other fee-paying benefit requests.\66\
Unfortunately, that goal was not achieved, and as stated in the NPRM,
the current level of fee waivers is not sustainable. See 84 FR 62300.
Thus, prescribing a limit in the regulations on the ability of future
Directors to waive or exempt fees on a discretionary basis was
determined to be necessary. Nevertheless, based on the use of 8 CFR
103.7(d) by Directors since 2010, the restrictions are consistent with
the relief that has been provided; thus new 8 CFR 106.3(b) and (c) is
not a major departure from how that provision has been applied.
---------------------------------------------------------------------------

\66\ 75 FR 58973.
---------------------------------------------------------------------------

Table 4 below provides a list of filing fee exemptions as provided
in the rule. See new 8 CFR 106.2.
---------------------------------------------------------------------------

\67\ In general, USCIS exempts a fee for an application or
request to replace a document based on USCIS error.
\68\ Some supplemental forms may not have fees as the fees are
part of the main form, including Form I-130A, Supplemental
Information for Spouse Beneficiary, Form I-485 Supplement J,
Confirmation of Bona Fide Job Offer or Request for Job Portability
Under INA Section 204(j), Form I-539A Supplemental Information for
Application to Extend/Change Nonimmigrant Status.
\69\ If more than one Form I-600 is filed during the Form I-600A
approval period on behalf of beneficiary birth siblings, no
additional fee is required.
\70\ No additional fee for a Form I-800 is required when filing
for children who are birth siblings.
\71\ Re-registration applicants must still pay the biometric
services fee.

Table 4--Filing Fee Exemptions \67\
----------------------------------------------------------------------------------------------------------------
Reason for Final rule Statutory or
Form \68\ Eligibility category filing (if regulation regulatory authority
applicable) section if applicable
----------------------------------------------------------------------------------------------------------------
I-90, Application to Replace Applicant who has N/A............. 8 CFR 8 CFR 264.5(a).
Permanent Resident Card. reached his or her 106.2(a)(1).
14th birthday and
the existing card
expires after his or
her 16th birthday.
I-102, Application for For nonimmigrant Initial Filing.. 8 CFR 8 CFR 106.3(e)(5)--
Replacement/Initial member of the U.S. ................ 106.2(a)(2)(i). Agreement between
Nonimmigrant Arrival- Armed Forces. Initial Filing.. ................ U.S. government and
Departure Document. For a nonimmigrant 8 CFR other nations.
member of the North 106.2(a)(ii). 8 CFR 106.3(e)(5)--
Atlantic Treaty Agreement between
Organization (NATO) U.S. government and
armed forces or other nations.
civil component.
For nonimmigrant Initial Filing.. 8 CFR 8 CFR 106.3(e)(5)--
member of the 106.2(a)(ii). Agreement between
Partnership for U.S. government and
Peace military other nations.
program under the
Status of Forces
Agreement.
I-129CW, Petition for a CNMI- For filing Form I- N/A............. 8 CFR 8 CFR 106.3(e)(5)--
Only Nonimmigrant 129CWR, Semiannual 106.2(a)(4)(B)( Agreement between
Transitional Worker. Report for CW-1 iii). U.S. government and
Employers. other nations.
I-129F, Petition for Alien For a K-3 spouse as N/A............. 8 CFR Previous regulations
Fianc[eacute](e). designated in 8 CFR 106.2(a)(5)(ii). at 8 CFR
214.1(a)(2) who is 103.7(b)(1)(i)(K).
the beneficiary of
an immigrant
petition filed by a
U.S. citizen on a
Petition for Alien
Relative, Form I-130.
I-131, Application for Travel Applicants who filed Any application. 8 CFR Required by
Document. USCIS Form I-485 on 106.2(a)(7)(iv). regulations in
or after July 30, effect at the time
2007, and before the request was
October 2, 2020 and filed.
paid the Form I-485
fee.
Applicants for Any application. 8 CFR National Defense
Special Immigrant 106.2(a)(7)(iv). Authorization Act
Status based on an for Fiscal Year
approved Form I-360 2008, Public Law 110-
as an Afghan or 181 (Jan 28, 2008)
Iraqi Interpreter, and Omnibus
or Iraqi National Appropriations Act,
employed by or on 2009 Public Law 111-
behalf of the U.S. 8 (Mar. 11, 2009).
Government or Afghan
National employed by
the U.S. Government
or the International
Security Assistance
Forces (``ISAF'').
I-360 Petition for Amerasian, A petition Any application. 8 CFR Policy based on INA
Widow(er), or Special seeking 106.2(a)(16). section 245(l)(7).
Immigrant. classification as an
Amerasian;.
A self-
petition for
immigrant
classification as an
abused spouse or
child of a U.S.
citizen or lawful
permanent resident
or an abused parent
of a U.S. citizen
son or daughter; or.
A petition
for special
immigrant juvenile
classification; or.
A petition seeking
special immigrant
visa or status an
Afghan or Iraqi
Interpreter, or
Iraqi National
employed by or on
behalf of the U.S.
Government or Afghan
National employed by
the U.S. Government
or the International
Security Assistance
Forces (``ISAF'')..
Form I-485, Application to Applicants for Any application. 8 CFR National Defense
Register Permanent Residence Special Immigrant 106.2(a)(17)(ii Authorization Act
or Adjust Status. Status based on an i). for Fiscal Year
approved Form I-360 2008, Public Law 110-
as an Afghan or 181 (Jan 28, 2008)
Iraqi Interpreter, and Omnibus
or Iraqi National Appropriations Act,
employed by or on 2009 Public Law 111-
behalf of the U.S. 8 (Mar. 11, 2009).
Government or Afghan
National employed by
the U.S. Government
or the International
Security Assistance
Forces (``ISAF'').
Applicants filing as Any application. ................ Previous 8 CFR
refugees under INA 103.7(b)(1)(i)(U)(3)
section 209(a). .

[[Page 46829]]

I-485 Supplement A, Adjustment When the applicant is N/A............. 8 CFR INA section 245(i).
of Status under Section an unmarried child 106.2(a)(17)(iv
245(i). less than 17 years ).
of age, when the
applicant is the
spouse, or the
unmarried child less
than 21 years of age
of a legalized alien
and who is qualified
for and has properly
filed an application
for voluntary
departure under the
family unity program.
I-290B, Notice of Appeal or For an appeal or Any application. 8 CFR National Defense
Motion. motion for denial of 106.2(a)(14)(ii Authorization Act
a petition for a ). for Fiscal Year
special immigrant 2008, Public Law 110-
visa from an 181 (Jan 28, 2008)
individual for a and Omnibus
special immigrant Appropriations Act,
status as an Afghan 2009 Public Law 111-
or Iraqi 8 (Mar. 11, 2009).
Interpreter, or
Iraqi or Afghan
National employed by
the U.S. Government
or the International
Security Assistance
Forces (``ISAF'').
I-539, Application to Extend/ Nonimmigrant A, G, ................ 8 CFR 8 CFR 106.3(e)(5)--
Change Nonimmigrant Status. and NATO. 106.2(a)(19). Agreement between
the U.S. government
and other nations.
I-589, Application for Asylum Applications filed by ................ 8 CFR Public Law 110-457,
and for Withholding of unaccompanied alien 106.2(a)(20). 122 Stat. 5044
Removal. children who are in (2008).
removal proceedings.
I-600, Petition to Classify First Form I-600 ................ 8 CFR Previous 8 CFR
Orphan as an Immediate filed for a child on 106.2(a)(21)(i). 103.7(b)(1)(i)(Y),
Relative \69\. the basis of an (Z).
approved Application
for Advance
Processing of an
Orphan Petition,
Form I-600A, during
the Form I-600A
approval or extended
approval period.
I-600A/I-600 Supplement 3, Filed in order to ................ 8 CFR Previous 8 CFR
Request for Action on obtain a first 106.2(a)(23)(i) 103.7(b)(1)(i)(Y),
Approved Form I-600A/I-600. extension of the (A). (Z).
approval of the Form
I-600A or to obtain
a first time change
of non-Hague
Adoption Convention
country during the
Form I-600A approval
period.
I-765, Application for Refugee.............. Initial EAD..... 8 CFR Policy.
Employment Authorization. Paroled as refugee... Initial EAD..... 106.2(a)(32)(ii Policy.
)(B).
8 CFR
106.2(a)(32)(ii
)(B).
Asylee............... Initial EAD..... 8 CFR Policy.
106.2(a)(32)(ii
)(C).
N-8 or N-9 Initial EAD..... 8 CFR 8 CFR 106.3(e)(5)--
nonimmigrant. 106.2(a)(32)(ii Agreement between
)(G). the U.S. government
and another nation
or nations.
Victim of severe form Initial EAD..... 8 CFR Policy based on INA
of trafficking (T-1 106.2(a)(32)(ii section 245(l)(7).
nonimmigrant). )(D).
Victim of qualifying Initial EAD..... 8 CFR Policy based on INA
criminal activity (U- 106.2(a)(32)(ii section 245(l)(7).
1 nonimmigrant). )(E).
Dependent of certain Initial EAD..... 8 CFR Based on 106.3(e)(5)--
government and Renewal EAD, 106.2(a)(32)(ii An agreement between
international Replacement EAD. )(F). the U.S. government
organizations, or 8 CFR and another nation
NATO personnel. 106.2(a)(32)(iv or nations.
)(C).
Taiwanese dependent Initial EAD, N/A............. 8 CFR 106.3(e)(5)--An
of Taipei Economic Renewal EAD, agreement between
and Cultural Replacement EAD. the U.S. government
Representative and another nation
Office TECRO E-1 or nations.
employees.
VAWA Self-Petitioners Initial EAD..... 8 CFR Policy based on INA
as defined in 106.2(a)(32)(ii section 245(l)(7).
section )(I).
101(a)(51)(D) of the
Act (Applicant
adjusting under the
Cuban Adjustment Act
for battered spouses
and children
(principal) who has
a pending adjustment
of status
application (Form I-
485)).
VAWA Self-Petitioners Initial EAD..... 8 CFR Policy based on
as defined in 106.2(a)(32)(ii through INA
section )(I). 245(l)(7).
101(a)(51)(E) of the
Act (Applicant
adjusting based on
dependent status
under the Haitian
Refugee Immigrant
Fairness Act for
battered spouses and
children (principal)
who has a pending
adjustment of status
application (Form I-
485)).
VAWA Self-Petitioners Initial EAD..... 8 CFR Policy based on INA
as defined in 106.2(a)(32)(ii section 245(l)(7).
section )(I).
101(a)(51)(F) of the
Act (Applicant
adjusting under the
Nicaraguan
Adjustment and
Central American
Relief Act for
battered spouses and
children (principal)
who has a pending
adjustment of status
application (Form I-
485)).
Applicant for Special Initial EAD, 8 CFR Public Law 110-181
Immigrant Status Renewal EAD, 106.2(a)(32)(ii (Jan 28, 2008) and
based on an approved Replacement EAD. )(J). Public Law 111-8
Form I-360 as an (Mar. 11, 2009).
Afghan or Iraqi
Translator or
Interpreter, Iraqi
National employed by
or on behalf of the
U.S. Government, or
Afghan National
employed by or on
behalf of the U.S.
government or
employed by the
International
Security Assistance
Forces (``ISAF'').
An applicant who Initial EAD, 8 CFR Required by
filed USCIS Form I- Renewal EAD, 106.2(a)(32)(ii regulations in
485 on or after July Replacement EAD. )(A). effect when form was
30, 2007 and before filed.
[INSERT EFFECTIVE
DATE OF 2018/2019
FEE RULE] and paid
the Form I-485
filing fee.
Principal VAWA Self- Initial EAD..... 8 CFR Policy based on INA
Petitioners who have 106.2(a)(32)(ii section 245(l)(7).
approved petitions )(H).
pursuant to section
204(a) of the Act.
Any current Initial EAD, 8 CFR Required by
Adjustment of Status Renewal EAD, 106.2(a)(32)(iv regulations in
or Registry Replacement EAD. )(A). effect when form was
applicant filed for filed.
adjustment of status
on or after July 30,
2007, and before
[INSERT EFFECTIVE
DATE OF 2018/2019
FEE RULE] and paid
the appropriate Form
I-485 filing fee.
Request for Replacement EAD. 8 CFR 8 CFR 106.3(e)(6).
replacement 106.2(a)(32)(ii
Employment i).
Authorization
Document based on
USCIS error.
I-765V, Application for Any applicant........ N/A............. 8 CFR Policy based on INA
Employment Authorization for 106.2(a)(32)(v). section 245(l)(7).
Abused Nonimmigrant Spouse.
I-800, Petition to Classify The first Form I-800 Initial Filing.. 8 CFR 8 CFR
Convention Adoptee as an filed for a child on 106.2(a)(33)(i). 103.7(b)(1)(i)(JJ),
Immediate Relative \70\. the basis of an (LL).
approved Application
for Determination of
Suitability to Adopt
a Child from a
Convention Country,
Form I-800A, during
the Form I-800A
approval period.
Form I-800A Supplement 3, Filed in order to N/A............. 8 CFR 8 CFR
Request for Action on obtain a first 106.2(a)(35)(i) 103.7(b)(1)(i)(JJ)(1
Approved Form I-800A. extension of the (A). ).
approval of the Form
I-800A or to obtain
a first time change
of Hague Adoption
Convention country
during the Form I-
800A approval period.

[[Page 46830]]

I-821, Application for Any applicant........ Re-registration. 8 CFR 106.2(a).. INA section
Temporary Protected Status 245(l)(7).
\71\.
I-821D, Consideration of Any requestor........ ................ 8 CFR Policy decision based
Deferred Action for Childhood 106.2(a)(38). on DHS et al. v.
Arrivals. Regents of the Univ.
of Cal. et al., No.
18-587 (S.Ct. June
18, 2010).
I-914, Application for T Any applicant........ N/A............. 8 CFR Policy but based on
Nonimmigrant Status. 106.2(a)(45). INA section
245(l)(7).
I-918, Petition for U Any applicant........ N/A............. 8 CFR Policy but based on
Nonimmigrant Status. 106.2(a)(46). INA section
245(l)(7).
N-336, Request for a Hearing An applicant who has N/A............. 8 CFR See INA secs.
on a Decision in filed an Application 106.2(b)(2). 328(b)(4),
Naturalization Proceedings for Naturalization 329(b)(4).
(Under Section 336 of the under sections 328
INA). or 329 of the Act
with respect to
military service and
whose application
has been denied.
N-400, Application for An applicant who N/A............. 8 CFR See INA secs.
Naturalization. meets the 106.2(b)(3). 328(b)(4),
requirements of 329(b)(4).
sections 328 or 329
of the Act with
respect to military
service.
N-565, Application for Application is N/A............. 8 CFR Policy based on 8 CFR
Replacement Naturalization/ submitted under 8 106.2(b)(5)(ii). 106.3(e)(6).
Citizenship Document. CFR 338.5(a) or
343a.1 to request
correction of a
certificate that
contains an error.
Form N-600, Application for Member or veteran of N/A............. 8 CFR Based on National
Certificate of Citizenship. any branch of the 106.2(b)(6). Defense
U.S. Armed Forces. Authorization
provisions.
Other--Claimant under section Claimant............. N/A............. 8 CFR INA 289.
289 of the Act. 106.2(c)(9).
----------------------------------------------------------------------------------------------------------------

1. EAD (Form I-765) Exemption
Comment: A commenter stated that DHS should not charge a fee for
applications for employment authorization for individuals granted
withholding of removal, indicating that it violates United States
treaty obligations under Article 17 of the Refugee Convention.
Individuals who have been granted withholding of removal have been
found by an immigration judge to meet the legal definition of a
refugee, and are authorized to remain lawfully in the United States for
as long as that status continues, citing to INA section 241(b)(3), 8
U.S.C. 1231(b)(3); 8 CFR 1208.16, 1208.24. The commenter indicated that
the U.S. Supreme Court has recognized that withholding of removal is
the mechanism by which the United States implements its obligation
under Article 33 of the Refugee Convention to ensure that refugees are
not returned to a place where they will face persecution, citing to INS
v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987). The commenter wrote
that just as much as asylees, individuals granted withholding of
removal have a right, under Article 17(1) of the Refugee Convention, to
obtain authorization to work on the most favorable terms that the
United States allows to nationals of a foreign country. The commenter
also indicated that Australia only charges the equivalent of 25 U.S.
dollars--half of what DHS proposes to charge for asylum applications.
Another commenter said the imposition of a fee for work
authorization for those individuals who have been granted withholding
of removal is in conflict with the U.S. legal obligations. The
commenter said such individuals have an urgent, recognized humanitarian
need to live and work in the United States, and therefore, USCIS should
continue its historic practice of exempting these individuals from work
authorization fees.
Response: DHS is continuing to provide a fee exemption for the
initial Form I-765, Application for Employment Authorization, for
individuals who were granted asylum (asylees) or who were admitted as
refugees, consistent with Article 17(1) of the 1951 Convention relating
to the Status of Refugees (as incorporated in the 1967 Protocol
relating to the Status of Refugees). See 84 FR 62302; 8 CFR
106.2(a)(32)(ii)(B). Consistent with past practice, asylees and
refugees submitting a Form I-765 for EAD renewals will generally be
required to pay the relevant fee. See 8 CFR 106.2(a)(32).
However, DHS is not providing a fee exemption for initial requests
for an EAD for individuals granted withholding of removal. See 84 FR
62301. Fees associated with access to protection and work authorization
do not jeopardize United States compliance with its non-refoulement
obligations under Article 33 of the 1951 Refugee Convention. The United
States ensures compliance with non-refoulement obligations not through
the asylum process, but through the withholding of removal provisions,
currently codified at section 241(b)(3) of the INA. See INS v. Stevic,
467 U.S. 407 (1984). USCIS uses the Form I-589 solely to adjudicate
affirmative applications for asylum. It is immigration judges, within
the Department of Justice, who evaluate withholding of removal claims
in the context of removal proceedings before them. The asylum process
``does not correspond to Article 33 of the 1951 Convention, but instead
corresponds to Article 34'' of the 1951 Refugee Convention, which
provides that party states ``shall as far as possible facilitate the
assimilation and naturalization of refugees.'' See INS v. Cardoza-
Fonseca, 480 U.S. 421, 441 (1987) (quotation marks omitted). As the
Supreme Court has recognized, Article 34 is ``precatory'' and ``does
not require [an] implementing authority actually to grant asylum to all
those who are eligible.'' Id. Further, although the United States is a
party to the 1967 Refugee Protocol, which incorporates both Articles 33
and 34 of the 1951 Refugee Convention, the Protocol is not self-
executing. See, e.g., Stevic, at 428 n.22. It is the withholding
statute at INA section 241(b)(3) and the asylum statute at INA section
208 that, respectively, constitute the U.S. implementation of these
treaty obligations. Nothing in either of these two provisions precludes
the imposition of a filing fee for asylum applications or work
authorization for those granted withholding of removal. Imposition of
asylum application and work authorization filing fees are fully
consistent with United States domestic implementing law and Article 17
of the 1951 Refugee Convention, which relates to refugees engaging in
employment. See Weinberger v. Rossi, 456 U.S. 25, 34 (1982) (noting the
general presumption that United States law conforms to U.S.
international treaty obligations). DHS has further clarified the
immigrant categories eligible for fee exemptions and clarified which
renewal and

[[Page 46831]]

replacement EAD are eligible for fee exemptions. See new 106.2(a)(32).
2. TPS
Comment: Another commenter stated that fee exemption limitations
would be especially harmful to TPS applicants. The commenter added that
USCIS is planning to charge TPS applicants a separate biometric service
fee, even though the proposal bundles that cost for every other
category of benefit applicant. The commenter concluded by saying TPS
applicants would be required to pay $570 to obtain TPS protections and
begin to earn an income, which is unaffordable.
Response: In this final rule, DHS removes the Form I-765 fee
exemption in 8 CFR 244.6(b) for TPS if the individual is an initial TPS
registrant and is under 14 years of age or over 65 years of age, and
DHS establishes a biometric services fee of $30 for TPS applicants and
re-registrants. As we stated in the NPRM, DHS is removing the fee
exemption because application fees from other form types have always
been used to fund the costs of processing fee-exempt filings.
Continuing to exempt these populations from paying associated fees
would result in the costs of their requests being borne by the other
proposed fees. Thus, DHS determined that initial TPS registrants under
14 years of age or over 65 years of age should pay for their own EAD.
The biometric services fee that TPS applicants and re-registrants
must pay is changed from $85 to $30, a reduction of $55 per filing.
This $30 fee, which will be required regardless of age, reflects the
cost of providing biometric services to TPS applicants and re-
registrants. See new 8 CFR 244.17(a). This biometric services fee will
partially offset the increase in the fee or the removal of the fee
exemption for Form I-765, Application for Employment authorization, so
that the total cost of applying for Temporary Protected Status and
requesting employment authorization for those who would not have been
exempt from the Form I-765 fee is increasing from $545 \72\ to $630 for
initial TPS applicants.\73\ The cost of re-registering for TPS and
requesting employment authorization will increase from $495 \74\ to
$580.\75\ DHS notes that TPS applicants and re-registrants may request
fee waivers. See 8 CFR 106.3.
---------------------------------------------------------------------------

\72\ Total of $545 equals $50 for Form I-821 plus $85 biometric
services fee plus $410 for Form I-765.
\73\ Total of $630 equals $50 for Form I-821 plus $30 biometric
services fee plus $550 for Form I-765.
\74\ Total of $495 equals $85 biometric services fee plus $410
for Form I-765.
\75\ Total of $580 equals $30 biometric services fee plus $550
for Form I-765.
---------------------------------------------------------------------------

The commenter correctly noted that DHS did not incorporate the cost
of biometrics into the cost of Form I-821, Application for Temporary
Protected Status. In this final rule, DHS incorporates the cost of
providing biometric services into the underlying fee for most
applications and petitions. However, the maximum fee for Form I-821,
Application for Temporary Protected Status is set in legislation at $50
for initial TPS applicants and $0 for re-registrants. See INA section
244a(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B). Therefore, DHS is not able to
increase the fee for Form I-821 and cannot incorporate the cost of
biometrics into the form fee. Thus, DHS maintains a separate biometric
services fee for TPS registrants and re-registrants and requires the
biometric services fee for re-registrants under age 14 to recover the
full cost of providing such services. New 8 CFR 106.3(a)(37)(iii) and
244.17(a).
DHS declines to make changes in this final rule based on this
comment. DHS also notes that 8 CFR 244.6(b) is updated to be consistent
with new 8 CFR 106.2 and 106.3 in relation to the Form I-765 fees for
TPS.

G. Comments on Specific Fees

1. Fees for Online Filing
Comment: A few 545 suggested that, rather than just raising the
fees, USCIS should focus on processing times and becoming more
efficient, stating that the process is ``severely paper intensive'' and
could benefit from a more streamlined electronic process. One commenter
cited a 2005 report from DHS Office of the Inspector General (OIG)
which found that USCIS information technology (IT) systems were
primarily paper-based and duplicative, and that USCIS' ability to
process immigration benefits was inefficient. Another commenter stated
that USCIS has done little to shift to digital applications despite
prior fee hikes. One commenter said paper filing is extremely laborious
for petitioners, and that many of the concerns that led USCIS to
propose higher fees and beneficiary limits could be solved by
implementing electronic filing. Another commenter outlined the benefits
of moving to electronic process, including cost savings and the ability
for ``essential workers to arrive on time.'' One commenter stated that
USCIS has failed to deliver promised improvements to its online filing
abilities and other modernization initiatives that would result in more
streamlined operations. The same commenter stated that in 2019, legal
service providers still reported many challenges in utilizing USCIS
online filing systems, and that modernization continues to be pushed on
to USCIS customers even to the detriment of customer service. A
commenter wrote that they were concerned about USCIS moving to online
filing based on their experiences with the Department of State's
National Visa center; they were frustrated by software glitches and
processing issues (e.g., lost documents, erroneous file rejection, lack
of information after lengthy waits on hold) which the commenter said
should be addressed before fees are raised. One commenter stated if
USCIS wants to save money, it should stop requiring an endless flow of
paperwork. The commenter provided a list of forms that businesses in
the CNMI must fill out when new employees are hired and stated that the
redundancy wasted both their and USCIS' time and resources. The
commenter referred to a bill from Congressman Sablan that would give
long-term CW Visa personnel permanent status and stated their hope that
there will not be constant paperwork required for those requests.
Response: On March 13, 2017, the President signed Executive Order
13781, entitled ``Comprehensive Plan for Reorganizing the Executive
Branch.'' \76\ The order instructed the Director of OMB to propose a
plan to improve the efficiency, effectiveness, and accountability of
the Executive Branch. The resulting June 2018 OMB Report, ``Delivering
Government Solutions in the 21st Century'' recognized that an
overarching source of government inefficiency is the outdated reliance
on paper-based processes and prioritized the transition of Federal
agencies' business processes and recordkeeping to a fully electronic
environment.\77\ The report noted that Federal agencies collectively
spend billions of dollars on paper management, including the
processing, moving, and maintaining of large volumes of paper records
and highlighted the key importance of data, accountability, and
transparency.\78\

[[Page 46832]]

Even more significantly, it cites USCIS' electronic processing efforts
as an example of an agency initiative that aligns with the prioritized
reforms.\79\
---------------------------------------------------------------------------

\76\ E.O. 13781, 82 FR 13959 (Mar 16, 2017).
\77\ OMB, Delivering Government Solutions in the 21st Century:
Reform Plan and Reorganization Recommendations 18 (2018), available
at https://www.whitehouse.gov/wp-content/uploads/2018/06/Government-Reform-and-Reorg-Plan.pdf.
\78\ Id. at 100.
\79\ Id. at 101-02.
---------------------------------------------------------------------------

DHS understands that, while USCIS has embraced technology in
adjudication and recordkeeping, it remains bound to the significant
administrative and operational burdens associated with paper
submissions. The intake, storage, and handling of paper require
tremendous operational resources, and the information recorded on paper
cannot be as effectively standardized or used for fraud and national
security, information sharing, and system integration purposes.
Technological advances have allowed USCIS to develop accessible,
digital alternatives to traditional paper methods for handling
requests. Every submission completed online rather than through paper
provides direct and immediate cost savings and operational efficiencies
to both USCIS and filers--benefits that will accrue throughout the
immigration lifecycle of the individual and with the broader use of
online filing and e-processing.
As various online functions are developed, USCIS makes them
available to the public, providing the option of engaging with USCIS
either online or on paper. DHS recognizes that, if presented with
optional new technology, people adopt new practices at varying
rates.\80\ In this case, the complexity of the immigration benefit
request system may exacerbate the tendency toward the status quo. Those
familiar with paper-based forms and interactions may feel there is no
reason to change a method that has worked for them.
---------------------------------------------------------------------------

\80\ Brian Kennedy & Cary Funk, Pew Research Group, 28 percent
of Americans are `strong' early adopters of technology (July 12,
2016), available at http://www.pewresearch.org/fact-tank/2016/07/12/28-of-americans-are-strong-early-adopters-of-technology/; Charlie
Wells, The Wall Street Journal, Forget Early Adopters: These People
are Happy to Be Late (Jan. 26, 2016), available at https://www.wsj.com/articles/forget-early-adopters-these-people-are-happy-to-be-late-1453827437.
---------------------------------------------------------------------------

DHS agrees that transitioning to e-processing for benefit requests
is an important step in improving the service and stewardship of USCIS
and to promote the objectives of the Government Paperwork Elimination
Act, E-Government Act, and E.O. 13781.\81\ Therefore, and in response
to the public comments, USCIS has calculated the amount of upfront cost
savings that it recognizes from an online versus paper filing in the
current environment and determined that it saves approximately $7 per
submission. To encourage the shift of those capable of filing online
into the electronic channel and increase the usage of USCIS e-
processing for those forms for which online filing is currently
available, DHS will set the fees for online filing at an amount $10
lower than the fees established in this final rule for filing that form
on paper. New 8 CFR 106.3(d).\82\ See Table 5: Fees for Online Filing
for a comparison of paper and online filing fees.
---------------------------------------------------------------------------

\81\ See President's Management Council, Executive Office of the
President, President's Management Agenda 7 (2018), available at
https://www.whitehouse.gov/wp-content/uploads/2018/04/ThePresidentsManagementAgenda.pdf.
\82\ U.S. Customs and Border Protection accepts USCIS Forms I-
192 and I-212 online. Available at https://www.cbp.gov/travel/international-visitors/e-safe (last viewed Mar. 27, 2020). However,
USCIS has no data on the cost of online filing with CBP. Therefore,
this $10 online fee reduction applies to USCIS forms submitted to
USCIS only.

Table 5--Fees for Online Filing
----------------------------------------------------------------------------------------------------------------
Online filing Paper filing
Immigration benefit request fee fee Difference
----------------------------------------------------------------------------------------------------------------
I-90 Application to Replace Permanent Resident Card............. $405 $415 $10
I-130 Petition for Alien Relative............................... 550 560 10
I-539 Application to Extend/Change Nonimmigrant Status.......... 390 400 10
N-336 Request for Hearing on a Decision in Naturalization 1,725 1,735 10
Proceedings....................................................
N-400 Application for Naturalization............................ 1,160 1,170 10
N-565 Application for Replacement Naturalization/Citizenship 535 545 10
Document.......................................................
N-600 Application for Certificate of Citizenship................ 990 1,000 10
N-600K Application for Citizenship and Issuance of Certificate.. 935 945 10
G-1041 Genealogy Index Search Request........................... 160 170 10
G-1041A Genealogy Records Request............................... 255 265 10
----------------------------------------------------------------------------------------------------------------

DHS adjusts USCIS' fee schedule in this final rule to ensure it
recovers the estimated full cost of providing immigration adjudication
and naturalization services. USCIS' cost baseline reflected in this
final rule accounts for the costs of intake and adjudication of
applications received online and on paper. To provide for full cost
recovery, DHS adjusts the fees for filing applications on paper when
online filing is available to be higher than those fees would be in the
absence of the lower fees for online filing. The increased revenue
anticipated from the higher fees for those forms when filed on paper
will offset the reductions in revenue anticipated from the lower fees
for online filing. USCIS will further evaluate the effects of these
changes in future biennial fee reviews.
As for the comments directed at the Department of State (DOS)
online processing, USCIS has no control over the efficacy of DOS
systems. DHS may learn from the DOS issues, however, and will, of
course, work to minimize any glitches.
Comment: Some commenters wrote that switching to online filing
would create a barrier to immigrants without access to technology, and
the option should exist to choose between e-filing and paper
submissions.
Response: USCIS does not require that any immigration benefit
request be filed online. Filing on paper remains a valid option.
However, this final rule specifies that forms currently eligible for
online filing will be $10 more if filed on paper.
Comment: A few commenters recommended USCIS maintain the current
fees for processing Form I-129 petitions for H-2A beneficiaries until
the online Electronic Immigration System (ELIS) can be established and
USCIS can conduct a robust analysis to more accurately determine an
appropriate fee schedule consistent with Federal guidelines for user
fees.
Response: USCIS must recover its full cost of providing immigration
adjudication and naturalization services. DHS adjusts the fees for
forms that are currently eligible for online filing to be $10 lower if
filed online than the fee for the same forms filed on paper to reflect
the known cost-savings to USCIS of receiving an application
electronically. DHS declines to delay adjusting the fee for Form I-
129H2A

[[Page 46833]]

because USCIS must recover its full costs.
DHS does not provide for a lower online filing fee for Form I-
129H2A in this final rule. As described above, DHS is increasing the
fees for filing an application on paper above the level it would
otherwise establish when the application is also eligible for online
filing. This will provide for full cost recovery by USCIS. However,
because online filing is not yet available for Form I-129H2A, DHS
cannot increase the fee for a paper filing to offset the anticipated
reduction in revenue from a lower fee for online filing and still
provide for full cost recovery. If DHS raised the fee for filing Form
I-129H2A on paper in anticipation of future online filing and a lower
fee for filing online, USCIS would recover revenue in excess of its
estimated full cost of adjudication until such time as online filing
and a lower online filing fee are available. Thus, DHS cannot establish
lower fees for online filing for Form I-129H2A, or any other
applications for which online filing is not yet available, and still
provide for full cost recovery. DHS may consider a lower fee for Form
I-129H2A if filed online in future rulemakings if Form I-129H2A is
available for online filing.
2. Biometric Services Fee
Comment: One commenter questioned why USCIS would forego
approximately $220,884,315 in biometric services fee revenue. The
commenter added that the NPRM allows for biometric services fees for
TPS applicants and those filing EOIR forms; therefore, there should
continue to be a fee for this service. The commenter concluded that if
DHS implements this proposal, it will be confusing for applicants,
attorneys, and government staff to implement and it will lead to delays
in proper filing of applications and petitions. The same commenter
recommended that USCIS use the biometric services fee to supplement
fraud investigations or consider raising this fee in order to provide
additional revenue.
Response: The commenter misunderstands DHS's approach to recovering
the estimated full cost of providing biometric services. Although DHS
eliminates the separate biometrics service fee of $85 for many
application types in this final rule, it establishes fees for most
forms to reflect the estimated full cost of adjudication, including the
cost of biometric services that are typically associated with that
form. Thus, DHS will continue to recover the cost of providing
biometric services, but it will do so by adjusting form fees to reflect
the total cost of an adjudication, including providing biometric
services. DHS will not forego any revenue associated with the biometric
services fee because of this change.
DHS believes that this change in its method of recovering the cost
of biometric services will provide benefits to applicants and USCIS.
Most applicants and petitioners will no longer need to determine if
they must submit a separate biometric services fee in addition to the
fee for their request. DHS believes that this will reduce confusion
among requestors and decrease rejections for incorrect fees. Fewer
rejections for incorrect fees should increase administrative efficiency
for USCIS.As provided in new 8 CFR 103.17, DHS is also establishing a
separate biometric services fee for additional requests for which it
could not include the costs to USCIS of administering biometric
services in the ABC model used for the NPRM. First, DHS codified
revised 8 CFR 208.7(a)(1)(i), which requires that biometrics be
submitted for an application for employment authorization from an
applicant for asylum or to renew such an EAD. See Asylum Application,
Interview, and Employment Authorization for Applicants, 85 FR 38532,
38626 (June 26, 2020); new 8 CFR 208.7(a) (1)(i). That rule takes
effect on August 25, 2020. Second, on February 19, 2020, USCIS
implemented the Commonwealth of the Northern Mariana Islands (CNMI)
long-term resident status program. It was created by the Northern
Mariana Islands Long-Term Legal Residents Relief Act. 48 U.S.C.
1806(e)(6).\83\
---------------------------------------------------------------------------

\83\ See, CNMI Long-Term Resident Status, available at https://www.uscis.gov/working-united-states/cnmi-long-term-resident-status
(last reviewed/updated Feb. 19, 2020).
---------------------------------------------------------------------------

Applicants must file Form I-955, Application for CNMI Long-Term
Resident Status, together with Form I-765, Application for Employment
Authorization, by August 17, 2020. When the CNMI long-term resident
status program was established, USCIS required that a biometric
services fee be submitted with the Form I-765.\84\ Because the CNMI
long-term resident program and fee NPRM were under development
simultaneously, DHS was unable to include the cost of biometric
services for CNMI long-term resident program in the ABC model for the
NPRM. Therefore, the fee for Form I-765 does not include the costs for
that service. DHS proposed new 8 CFR 103.17 in contemplation of the
need for a separate fee in the future if biometric services was
required by regulations or policy, but where the costs had not been
considered in setting the benefit request fee. As a result, and
consistent with the actions taken for TPS, EOIR forms, and in
accordance with new 8 CFR 103.17, DHS requires that CNMI long-term
resident applicants and applicants for asylum who are applying for
employment authorization submit a $30 biometric services fee with their
Form I-765. 8 CFR 106.2(a)(32)(i)(A), (B).
---------------------------------------------------------------------------

\84\ See USCIS Form I-765, Application for Employment
Authorization, page 23 (stating, ``Special Instructions for
Applicants for Commonwealth of the Northern Mariana Islands (CNMI)
Long-Term Resident Status--(c)(37). All applicants under this
category must pay the biometric services fee of $85. The biometric
services fee and the filing fee for the I-765 application cannot be
waived.''). Available at https://www.uscis.gov/i-765.
---------------------------------------------------------------------------

Comment: One commenter opposed a separate biometric services fee
for TPS applicants, stating that USCIS is breaching Congress's $50 cap
on TPS filing by imposing a separate biometric fee.
Response: The commenter is correct in stating that the fee for Form
I-821, Application for Temporary Protected Status, is statutorily
limited to $50 for initial TPS applicants and $0 for re-registrants.
See INA section 244a(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B). However, the
commenter is incorrect in stating that charging TPS applicants and re-
registrants a separate biometric services fee constitutes a breach of
any statute. DHS has specific statutory authority to collect ``fees for
fingerprinting services, biometric services, and other necessary
services'' when administering the TPS program. See 8 U.S.C. 1254b.
Before this final rule, all TPS applicants and re-registrants aged
14 years and older were subject to the $85 biometric services fee, in
addition to any applicable fees for Forms I-821 and I-765. Therefore,
adjusting the biometric services fee for TPS applicants and re-
registrants to $30 represents a $55 reduction in the biometric services
fee that these individuals may pay. DHS also notes that TPS applicants
and re-registrants may apply for fee waivers based on eligibility
criteria established by USCIS.
In this final rule, DHS removes the Form I-765 fee exemption in 8
CFR 244.6(b) for TPS if the individual is an initial TPS registrant and
is under 14 years of age or over 65 years of age, and DHS establishes a
biometric services fee of $30 for TPS applicants and re-registrants. As
we stated in the NPRM, DHS is removing the fee exemption because fees
from other form types have always been used to fund the costs of
processing fee-exempt filings. Continuing to exempt these populations

[[Page 46834]]

from paying associated fees would result in the costs of their requests
being borne by the other proposed fees. Thus, DHS determined that
initial TPS registrants under 14 years of age or over 65 years of age
should pay their own Form I-765 fee and biometric services fee. The
biometric services fee that TPS applicants and re-registrants must pay
is changed from $85 to $30, a reduction of $55 per filing. This $30
fee, which will be required regardless of age, reflects the cost of
providing biometric services to TPS applicants and re-registrants. See
new 8 CFR 244.17(a).
DHS declines to make changes in this final rule in response to the
comment.
Comment: A few commenters stated that including a biometrics
screening and fee for children under 14 is unnecessary and that it is
inappropriate to charge a single fee for Form I-485 that includes the
cost of biometrics to both adults and children under 14 years of age
who do not submit biometric information. A few commenters stated that
imposing a biometric services fee where USCIS does not capture
biometric data would deter families from entering the United States as
a unit.
Response: As explained previously, DHS will expand the collection
of biometric information for TPS re-registrants under the age of 14,
remove the biometrics fee exemption from 8 CFR 244.17(a), and revise
the form instructions for Form I-821 to require a $30 biometrics
service fee from every TPS registrant regardless of age. See 84 FR
62303 and 62368. This change assigns the costs of TPS applications and
re-registrations to those who benefit from them. DHS uses biometrics
beyond criminal history background checks to include identity
management and verification in the immigration lifecycle. Therefore,
biometrics will be collected without age limitation, although it may be
waived at DHS's discretion.
DHS also acknowledges that this final rule increases the fees for
children under 14 years old who file an I-485 concurrently with a
parent filing an I-485 by eliminating the reduced I-485 child fee. This
final rule establishes the fee for Form I-485, Application to Register
Permanent Residence or Adjust Status, at $1,130 for all applicants.
The commenters correctly wrote that the Form I-485 fee established
in this final rule includes the average cost of biometric services
associated with processing those applications. The inclusion of
biometric services reduces the average cost of Form I-485 and the final
fee established in this final rule. Processing a given application may
be more or less costly than processing another application of the same
type because of the evidence and other factors that adjudicators may
consider. Therefore, DHS establishes its fees, unless otherwise noted,
at a level sufficient to recover the estimated full cost of
adjudication. DHS calculated the Form I-485 fee to reflect the full
cost of adjudication, including the average cost of biometric services
associated with those applications.
DHS declines to make changes in this final rule in response to
these comments.
3. Genealogy Fees, Forms G-1041, Genealogy Index Search Request, and G-
1041A, Genealogy Records Request
Comment: Numerous commenters generally opposed increasing fees for
genealogy search and records requests. Other commenters, many
identifying themselves as professional genealogists and/or individual
family genealogists, opposed the proposed increased fees, stating that
they oppose the fee increase for the following reasons:
No other government record or research request fees are
close to the proposed increased costs.
The 500 percent fee hike is unjustified, especially after
fees tripled 3 years ago.
The NPRM did not present data or specifics to substantiate
the costs. DHS cannot claim such fees are necessary to cover costs when
USCIS did not provide cost analysis to support the claim. The proposed
fees for G-1041 and G-1041A are arbitrary and capricious.
The nature of genealogical research often requires broad
investigation, requiring several search and record requests.
Some commenters stated that the reasoning presented in the NPRM
does not make sense, and expressed doubt that the cost of providing
these services could possibly have risen enough in 3 short years to
justify an increase of this magnitude, including:
Workload volume submitted in Tables 1 and 5 are the same
and do not indicate any increase in workload after the increase in fee
schedules;
Table 4 shows a combined total increase of only 7,200
requests in the last three years;
Table 24 shows how costs will be reduced to the agency by
decreasing the administrative burden through electronic versions of
records;
The proposal provides no real basis of comparison of real
costs;
DHS does not currently have enough data to estimate the
effects for small entities; and
The expected use in the next fiscal year shows almost no
impact to USCIS.
Response: DHS recognizes commenters' concerns regarding the scope
of the fee increases for Forms G-1041 and G-1041A in the NPRM. The
proposed increase reflected changes in USCIS' methodology for
estimating the costs of the genealogy program to improve the accuracy
of its estimates. In response to public comments on the proposed
genealogy fee increases, USCIS further refined the methodology used to
estimate genealogy program costs. Based on the refined methodology,
this final rule establishes a fee for Form G-1041, Genealogy Index
Search Request, when filed online as $160 and $170 when filed on paper.
Using the same methodology refinement, DHS establishes a fee for Form
G-1041A, Genealogy Records Request, when filed online as $255 and $265
when filed by paper.
INA section 1356(t)(1) authorizes DHS to set the genealogy fee for
providing genealogy research and information services at a level that
will ensure the recovery of the costs of providing genealogy services
separate from other adjudication and naturalization service's fees.
USCIS must estimate the costs of the genealogy program because it does
not have a discrete genealogy program operating budget. Nor does USCIS
discretely identify and track genealogy program expenditures. The same
office that researches genealogy requests, the National Records Center,
also performs other functions, such as FOIA operations, retrieving,
storing, and moving files. In the FY 2016/2017 fee rule, DHS estimated
the costs of the genealogy program indirectly using projected volumes
and other information. The projected costs included a portion of
Lockbox costs, genealogy contracts, and other costs related to the
division that handles genealogy, FOIA, and similar USCIS workloads. See
81 FR 26919. This estimation methodology underestimated the total cost
to USCIS of processing genealogy requests by not fully recognizing
costs associated with the staff required to process genealogical
requests. Therefore, other fees have been funding a portion of the
costs of the genealogy program, and DHS is correcting that in this
rule.
In FY 2018, USCIS incorporated the genealogy program into the
National Records Center (NRC). This change enabled USCIS to revise its
cost estimation methodology to incorporate a proportional share of the
NRC's operating costs based on the staffing devoted to the genealogy
program. DHS estimated the costs of the genealogy program using this
methodology for the first time in its FY 2019/2020 fee review

[[Page 46835]]

and subsequently proposed to base the fees for Forms G-1041 and G-1041A
on these revised cost estimates. DHS did not apply cost reallocation to
the fees for Forms G-1041 and G-1041A. DHS believes that these revised
cost estimates and fees reflect more accurately the true costs to USCIS
of operating the genealogy program than the previous indirect
estimation methodology.
As requested by public comments received on the NPRM, USCIS
examined the proposed genealogy fees, and decided to further refine its
cost estimation for the genealogy program. For this final rule, USCIS
reviewed the costs attributable to the NRC to identify those that
directly support the genealogy program. USCIS determined that some NRC
costs do not directly support the genealogy program and are not
attributable to Forms G-1041 and G-1041A. USCIS removed the non-
attributable costs to the genealogy program from its cost estimates for
Forms G-1041 and G-1041A. USCIS maintained in its genealogy program
cost estimates a proportional share of NRC overhead costs based on the
number of staff at the NRC supporting the genealogy program. Thus,
USCIS reduced its estimate of the genealogy program's total cost by
$0.9 million. In this final rule, DHS establishes the fee for Form G-
1041, Genealogy Index Search Request, when filed online as $160, the
fee for a paper filed G-1041 as $170, the fee for Form G-1041A,
Genealogy Records Request, when filed online as $255, and the fee for a
paper filed G-1041A as $265 to reflect its revised, lower cost
estimates directly attributable to the USCIS genealogy program. To the
extent that DHS will no longer recover a full proportionate share of
the NRC's costs via fees for Forms G-1041 and G-1041A, USCIS will
recover those costs through the fees assessed for other immigration
benefit requests.
DHS appreciates the public's feedback on the USCIS genealogy
program and has implemented changes in this final rule in response to
these comments.
Comment: Some commenters claimed that taxpayers have already paid
to acquire, manage, and store these records. Taxpayers already support
the government substantially and should not be charged for access to
records.
Response: DHS understands the commenters' concerns regarding the
potential for duplicative payment. However, USCIS does not receive
taxpayer funds for the genealogy program, nor do taxes pay for the
acquisition, management, or storage of records in USCIS' custody.
Therefore, DHS must recover the estimated full cost of the genealogy
program, including managing and storing records, via USCIS' fee
schedule.
When DHS receives a request for genealogical records, it must
identify whether USCIS possesses relevant records, retrieve, and review
them for release where appropriate. These activities incur costs beyond
the general costs of record management and storage that DHS
incorporates into other immigration benefit request fees via the
Records Management activity. USCIS estimates the costs of the genealogy
program via the Research Genealogy activity, as shown in the Cost
Objects section of the supporting documentation that accompanies this
final rule. Therefore, DHS establishes fees for Forms G-1041 and G-
1041A to recover these additional costs. DHS has explicit authority to
recover the costs of providing genealogical services via genealogy
fees. See 8 U.S.C. 1356(t).
DHS declines to make changes in this final rule in response to
these comments.
Comment: Some commenters opposing the fee increase focused on
income and ability-to-pay, such as the following:
The increased fees would be far beyond the financial means
of most average Americans and make it impossible for genealogists and
families to make and pay for requests. Only the rich and wealthiest
would be able to access these records.
Many individuals doing genealogy research tend to be older
and on limited income.
A few commenters said that 2018 data from the Federal
Reserve Board indicated that the proposed increased fees would place
access to Federal public records beyond the financial capabilities of
an estimated 40 percent of Americans. Many commenters stated that
records should be easily obtainable to all and not used to generate
revenue for the government.
Response: DHS recognizes the concerns of commenters and
acknowledges the substantial increase in the fees for Forms G-1041 and
G-1041A. In response, USCIS refined its cost estimation methodology for
the genealogy program as described above. In this final rule, DHS
establishes the fee for Form G-1041, Genealogy Index Search Request,
when filed online as $160, the fee for a paper filed G-1041 as $170,
the fee for Form G-1041A, Genealogy Records Request, when filed online
as $255, and the fee for a paper filed Form G-1041A as $265 to reflect
its revised, lower cost estimates for operating the USCIS genealogy
program.
In this final fee rule, DHS emphasizes the beneficiary-pays
principle. Consistent with its approach to most other fees addressed in
this final rule, DHS establishes the fees for Forms G-1041 and G-1041A
at a level that reflects the estimated full cost of providing those
services. DHS does not establish these fees to limit access to
genealogical records, and they do not augment government tax revenue.
DHS declines to require other individuals filing immigration benefit
requests to subsidize users of the genealogy program.
Comment: Multiple commenters stated that the proposed fee increases
for record requests seems to be a punishment for citizens who want
access to ancestors' records. Multiple individuals stated that USCIS
would be ``holding them hostage'' by demanding exorbitant and
unjustified fees to access documents on immigration ancestors. The
commenters wrote that these records should already be publicly
accessible under the law.
Response: DHS rejects the characterization of the proposed fees as
a way to punish or hold hostage individuals who seek records related to
their ancestors via the USCIS genealogy program. In this final rule,
DHS establishes the fees for Forms G-1041 and G-1041A at a level
sufficient to recover the estimated full cost of providing access to
genealogical records, as provided for by law. See INA section 286(t), 8
U.S.C. 1356(t). DHS is not motivated by any other consideration and
declines to make changes in this final rule in response to these
comments.
Comment: One commenter stated that USCIS most likely has indices of
all files in digital form, therefore the time required to type a name
into a computer, read the result, and email it to the requester is a
matter of minutes and the salary and benefits of the employees do not
justify a fee of $240. A few commenters stated that USCIS should
publish the figures for the ``actual out-of-pocket costs'' of searching
indices and providing copies of records found and the estimate of the
number of requests likely to be processed so that the public can judge
whether the fees are appropriate to the cost of providing the service.
Response: DHS acknowledges that USCIS possesses indices of many
different types and series of records. These indices aid USCIS in
efficiently identifying records that may be related to a given
genealogical request. However, to fulfill genealogical records
requests, USCIS incurs costs beyond identifying records that may be
relevant

[[Page 46836]]

to a particular inquiry. In addition to identifying relevant records,
USCIS must retrieve the relevant records and manually review them
before release to ensure compliance with federal privacy statutes. In
addition to these direct costs, USCIS also incurs overhead costs
associated with storing and managing the records, including relevant
facilities costs. In this final rule, DHS estimates the total cost,
including applicable indirect costs, of completing Form G-1041,
Genealogy Index Search Request, to be $160 when filed online and the
total cost of completing a paper Form G-1041, Genealogy Index Search
Request, to be $170. Therefore, DHS establishes the fee for Form G-1041
as $160 when filed online and a paper filed Form G-1041 as $170. In
this final rule, DHS estimates the total cost, including applicable
indirect costs, of completing Form G-1041A, Genealogy Records Request,
to be $255 when filed online and the total cost of completing a paper
Form G-1041A, Genealogy Records Request, to be $265. Therefore, DHS
establishes the fee for Form G-1041A as $255 when filed online and the
fee for a paper filed Form G-1041A as $265.
Comment: Many commenters stated that it was vital to be able to
obtain records and family artifacts held in files about their
ancestors' immigration to the United States and path to becoming
Americans. A commenter stated that the records provide information that
genealogists often cannot find in any other extant record. Some
commenters said public access and researching genealogy helps educate
themselves, their children, and other generations on important parts of
immigration history, such as the Chinese Exclusion Act and the
Holocaust. Multiple commenters wrote ``an informed and educated
citizenry is essential for our democracy to continue to prosper.'' A
few commenters said studies show that children perform better in school
if they know about their ancestors. A few commenters wrote that
genealogy research is an integral part of the Church of Jesus Christ of
Latter-day Saints and the proposed increase in fees would be a burden
to those of that faith. Some commenters said that Daughters of the
American Revolution and Native Americans search records to confirm
applications for memberships. Ancestral history projects research
American slaves brought to South Carolina and Virginia. A fee increase
would negatively affect legitimate organizations that keep detailed,
complete, and accurate records of American history and would forestall
efforts to complete the histories of minority citizens. A few
commenters stated that USCIS genealogy records contain information no
longer found in Europe, where the Nazis destroyed records during World
War II.
Response: DHS recognizes the importance of genealogical records and
the connections they can provide to immigrant ancestors. In this final
rule, DHS establishes the fees for Forms G-1041 and G-1041A at a level
sufficient to recover the estimated full cost of providing access to
genealogical records, as provided for by law. See INA section 286(t), 8
U.S.C. 1356(t). The fees established in this final rule are intended to
recover the estimated full cost of providing genealogical record
services and are not motivated by any other consideration. DHS declines
to make changes in in this final rule in response to these comments.
Comment: Several commenters wrote that the information provided is
essential as part of an application process to those pursuing dual
citizenship.
Response: DHS recognizes the value of genealogical records to
individuals who are pursuing dual citizenship. However, as an agency
funded primarily through user fees, USCIS must recover the full cost of
the services it provides. Consistent with the beneficiary-pays
principle emphasized throughout this final rule, DHS declines to
require other immigration benefit requestors to subsidize individuals
requesting genealogical services from USCIS. DHS declines to make
changes in this final rule in response to these comments.
Comment: A few individuals stated that affordable access to
genealogy is important to helping determine genetic medical problems
and allowing family members to take proactive precautions that foster
improved public health as well as substantial cost-savings by federal
and state financial medical services.
Response: DHS recognizes that individuals may value and request
genealogical records for many different reasons. However, DHS is not
aware of any data demonstrating the monetary value of health
information that may be derived from such records. Consistent with the
beneficiary-pays principle emphasized throughout this final rule, DHS
declines to require other immigration benefit requestors to subsidize
individuals requesting genealogical services from USCIS. DHS declines
to make changes in this final rule in response to these comments.
Comment: Several commenters stated that the proposed fees are far
from advancing the goals of the USCIS Genealogy Program and instead
would likely be the demise of the program. Some commenters wrote that
the proposed increase in fees would price-out and prevent researchers
from accessing records, significantly reducing the number of requests
for documents, and essentially closing down USCIS' Genealogy Program.
Many commenters stated that the proposed increase in fees appears
intentionally designed to put an end to people using the Genealogy
Program. Numerous commenters addressed how the hefty charges for the
initial research, regardless of whether USCIS identified any records,
would be by itself a substantial deterrent to genealogical research.
Response: DHS acknowledges the substantial increase in fees for
Forms G-1041 and G-1041A in this final rule. In this final rule, DHS
established the fees for Forms G-1041 and G-1041A to recover the
estimated full cost to USCIS of providing genealogical services. In
setting these fees, DHS is not motivated by any other consideration.
DHS does not intend to discourage individuals from requesting
genealogical records, to deter genealogical research, or to eliminate
the USCIS genealogy program. DHS declines to make changes in this final
rule in response to these comments.
Comment: Many commenters wrote that the proposed change would be in
violation of the Freedom of Information Act (FOIA). Some further
commented that the proposed fees are inexplicable given that USCIS
often directs a majority of requests to the FOIA program for
processing. Several commenters questioned how there could be a charge,
other than standard FOIA fees, if the information is available via
FOIA. Some commenters wrote that a charge of $240 to simply search an
index is unacceptably high compared to standard DHS cost and timeframes
for FOIA requests because this fee would equal 6 hours of searching the
Master Index, when index searches should usually be able to be
completed in an hour or less, undercutting the intent of the FOIA.
Response: There is no conflict between the Freedom of Information
Act and DHS' operation of the USCIS genealogical program. Nor is USCIS
constrained in establishing fees for its genealogical services to the
levels established under FOIA. USCIS formerly processed requests for
historical records under USCIS' Freedom of Information Act (FOIA)/
Privacy Act (PA) program but the demand for historical records grew
dramatically. Because the records were not subject to FOIA exemptions,
that

[[Page 46837]]

process was not the most suitable for genealogy request. See
Establishment of a Genealogy Program; Proposed rule, 71 FR 20357-20368
(April 20, 2006). The genealogy program was established to relieve the
FOIA/PA program from burdensome requests that require no FOIA/PA
expertise, place requesters and the Genealogy staff in direct
communication, provide a dedicated queue and point of contact for
genealogists and other researchers seeking access to historical
records, and cover expenses through fees for the program. and, reduce
the time to respond to requests. Id at 20364. In this final rule, DHS
establishes the fees for Forms G-1041 and G-1041A at levels sufficient
to recover the estimated full cost of providing access to genealogical
records, as provided for by law. See INA section 286(t), 8 U.S.C.
1356(t). In this final rule, using the refined methodology described
above, DHS estimates the total cost, including applicable indirect
costs, of completing Form G-1041, Genealogy Index Search Request, to be
$160 when filed online and the total cost of completing a paper Form G-
1041, Genealogy Index Search Request, to be $170. Therefore, DHS
establishes the fee for Form G-1041 as $160 when filed online and a
paper filed Form G-1041 as $170. In this final rule, DHS estimates the
total cost, including applicable indirect costs, of completing Form G-
1041A, Genealogy Records Request, to be $255 when filed online and the
total cost of completing a paper Form G-1041A, Genealogy Records
Request, to be $265. Therefore, DHS establishes the fee for Form G-
1041A as $255 when filed online and the fee for a paper filed Form G-
1041A as $265.
DHS appreciates the commenters' concerns regarding differences
between the FOIA process and the genealogical index search and records
request processes. Before 2017, the USCIS staff who processed FOIA
requests also processed some genealogical records requests,
particularly records from 1951 or later. However, USCIS moved the
genealogical program to the NRC in 2017. Since that time, dedicated
USCIS genealogical staff process all genealogical records requests.
Commenters are mistaken in stating that the genealogy program sends
appropriately filed genealogy requests through the FOIA process. DHS
acknowledges that both FOIA requests and genealogical records requests
are subject to review under the Privacy Act of 1974 to ensure that
USCIS does not inappropriately release information to third parties.
However, USCIS' genealogy program is distinct from the FOIA program and
the fees DHS establishes for Forms G-1041 and G-1041A reflects the
estimated full cost of only the USCIS genealogy program. DHS declines
to make changes in this final rule in response to these comments.
Comment: Numerous commenters stated that USCIS needs to comply with
its own retention schedules and send appropriate records to NARA, as
required by law. Multiple commenters wrote that requests for documents,
such as A-files, visa and registry files, and alien registration forms,
should already be at NARA per law and for a minimal cost. Some
commenters wrote that NARA could manage records more efficiently,
accessed more freely, and reproduced more economically, as preserving
and providing access to historical records of the federal government is
one of NARA's core missions and areas of expertise. Many commenters
requested information on USCIS' plan and timeline to move all the
records to NARA for release.
Response: DHS acknowledges that many records in USCIS' possession
are due to be transferred to NARA under its existing records retention
schedules. USCIS strives to adhere to its records retention schedules
and transfer files to NARA expeditiously when records are eligible for
transfer. Unfortunately, issues such as incomplete/non-existent file
indices or other operational difficulties may inhibit and delay such
transfers. USCIS works with NARA to address all such issues and expects
to transfer more files to NARA in the near future. DHS agrees that NARA
is the appropriate repository for permanently retained records. DHS
declines to make any changes in this final rule in response to these
comments.
Comment: Many commenters stated that implementation of increased
fees should not occur without careful explanation and discussion of
alternatives. Several commenters suggested alternatives, including
rolling back or reducing fees for record requests, aligning an increase
with inflation rates, charging less for family genealogy, allowing NARA
to provide free or much lower cost access to the files, digitizing all
documents and allowing access on-line, transferring records to an
appropriate repository, and/or limiting USCIS holdings to non-
historical records. A commenter suggested that all pre-1948 indices and
records be copied to NARA, following a federal government census rule
that information can be disclosed after 72 years. A few commenters
wrote that encouraging requests via electronic submissions for index
searches and documents, as stated in the proposed rule, and
digitization of records is worthy, as it should result in lower fees,
greater efficiency, and ease of use, not the reverse.
Response: DHS appreciates and agrees with the commenters' reasoning
that filing index search requests and records request online increases
efficiency and, all else equal, reduces the cost to USCIS of providing
the associated services. To reflect these reduced costs, in this final
rule, DHS implements a fee of $160 for Form G-1041, Genealogy Index
Search, when filed online and a fee of $170 for a paper filed Form G-
1041. Similarly, DHS implements a fee of $255 for Form G-1041A,
Genealogy Records Request, when filed online and a fee of $265 for a
paper filed Form G-1041A. The difference between the fee for a form
filed online and a form filed on paper represents the estimated
reduction in cost to USCIS of providing the relevant service.
DHS also appreciates commenters' suggestions to reduce the fees for
record requests. As described above, in response to public comments
received on its NPRM, USCIS further refined its cost estimation
methodology for the genealogy program. These refinements reduced the
estimated cost of the USCIS genealogy program by $0.9 million, leading
to a commensurate reduction in the fees for Forms G-1041 and G-1041A
from the levels proposed in the NPRM.
DHS evaluated alternatives to increasing the genealogy fees.
Unfortunately, alternative approaches such as increasing the fees for
Forms G-1041 and G-1041A by the rate of inflation would not enable
USCIS to recover the estimated full cost of providing genealogical
services. Such an approach would require other immigration benefit
requestors to subsidize the USCIS genealogy program. As stated
elsewhere, consistent with the beneficiary-pays principle emphasized
throughout this final rule, DHS declines to require other immigration
benefit requestors to subsidize the USCIS genealogy program.
Comment: A couple of commenters suggested other changes to the
proposed fees, including basing the cost on the number of pages and
time for staff to prepare the records for transmission as well as using
some of the new funds to fix problems that exist with managing records
at USCIS (e.g., losing indexes or records, staffing issues). A few
commenters wrote that if a search returns no information, then USCIS
should not charge a fee or should issue a partial refund.
Response: DHS understands the commenters' suggestions. However,

[[Page 46838]]

USCIS must recover the cost of its operations through user fees. DHS is
setting the fees for Form G-1041 and G-1041A at levels that represent
the estimated full cost to USCIS of providing genealogical services.
These fees represent the estimated average cost of completing an index
search or a records request. USCIS does not track or differentiate the
costs incurred based on the number of pages of documents involved in a
request, nor does USCIS track the time each individual genealogy
request requires. Charging a la carte fees as suggested would be
burdensome to administer because we would need to track the time spent
on every request and invoice for payment. That system would not
function properly, or efficiently or provide for full cost recovery.
DHS declines to adopt the commenters' suggestion to establish the fees
for Forms G-1041 and G-1041A using this method.
Furthermore, DHS incurs costs associated with index searches and
records requests regardless of whether DHS ultimately identifies
relevant records that can be provided to the requestor. Refunding the
fee for Form G-1041 and G-1041A that do not result in records or
information provided to the requestor would defy the principles of full
cost recovery. DHS declines to require other applicants and petitioners
to subsidize the cost of processing Forms G-1041 and G-1041A when those
requests do not identify information for release to the requestor.
Comment: Several commenters suggested repealing the tax cuts
implemented by President Trump that resulted in a substantial budget
deficit instead of implementing the proposed increase in fees.
Response: The USCIS genealogy program is funded by user fees,
consistent with statutory authority. See INA section 286(t), 8 U.S.C.
1356(t). DHS is adjusting the fees for Forms G-1041 and G-1041A to
reflect USCIS' estimated full cost of providing the relevant services.
Comment: One commenter said that although immigration fees should
not increase, non-immigration related genealogical search fees should
increase to recover those costs.
Response: DHS thanks the commenter for their input but declines to
adopt the recommendation. DHS is adjusting the fees for Forms G-1041
and G-1041A to reflect USCIS' estimated full cost of providing the
relevant services.
4. Form I-90, Application To Replace Permanent Resident Card
Comment: A commenter stated that the $40 reduction would not lead
to any real financial relief to LPRs who want to apply for
naturalization when the citizenship fees will increase by 83 percent.
The commenter stated that, due to long processing times, many
citizenship applicants must, for all practical purposes, pay the fees
for both Forms I-90 and N-400, which total $1,585, in order to keep
green cards up to date. The commenter said it failed to see how this
``miniscule'' reduction in Form I-90 fees helps the agency accomplish
its goals.
Response: In this final rule, DHS adjusts the fee for Form I-90,
Application to Replace Permanent Resident Card, to $405 when filed
online and the fee for a paper filed Form I-90 to $415. Most applicants
for Form I-90 must pay the current $455 fee plus an $85 biometric
services fee, thus making the total current fees $540. These amounts
represent USCIS' estimated full cost adjudicating Form I-90, including
the cost of providing similar services without charge to asylum
applicants and other immigrants. In setting these fees, DHS intends to
achieve full cost recovery for USCIS, as provided in law, while
emphasizing the beneficiary-pays principle of user fees. DHS is not
motivated by any other consideration in establishing these fees, thus,
we did not consider any interplay between the fees for Forms I-90 and
N-400 in the NPRM, nor do we in the final rule. The new fee for Form I-
90 of $405 when filed online represents a $50 decrease from the
previous fee of $455. The new fee for a paper filed Form I-90 of $415
represents a $40 decrease from the previous fee of $455. The new fees
include the cost of biometric services, thus making the total decrease
$135 when filed online or $125 when filed on paper. These adjustments
reflect efficiencies USCIS has achieved in adjudicating Form I-90,
thereby reducing the estimated cost of adjudication. The lower fee for
Form I-90 when filed online reflects the estimated cost savings to
USCIS of receiving the application online. These fee adjustments are
intended to ensure that the fees accurately reflect the estimated full
cost of adjudication. DHS declines to make any adjustments in response
to this comment.
Comment: Another commenter said, by not only increasing the N-400
fee but also reducing the Form I-90 fee, the proposed rule would
further discourage Form N-400 applicants from naturalizing and
obtaining the full benefits of citizenship for both themselves and our
nation. Similarly, another commenter said decreasing the Form I-90 fee
while increasing the Form N-400 fee appears to be a conscious policy
decision by USCIS to keep LPRs from applying for U.S. citizenship.
Response: DHS acknowledges that this final rule establishes
increased fees for Form N-400 ($1,160 if filed online and $1,170 if
filed on paper) while reducing the fees for Form I-90 ($405 if filed
online and $415 if filed on paper) DHS does not intend to discourage
naturalization and is not motivated by any consideration other than
achieving full cost recovery while emphasizing the beneficiary-pays
principle in establishing these fees. DHS declines to make any changes
in this final rule in response to these comments.
Comment: A commenter said that the Form I-90 fee decrease is
puzzling considering the current processing and adjudication of the
corresponding benefits. The commenter said a simple renewal of a
permanent resident card currently takes up to 11 months, wondered why
issuing a new card takes that long, and it seems unlikely that these
processing times will improve with a decreased fee.
Response: DHS acknowledges that USCIS' processing times for Form I-
90 have exceeded it goals. However, USCIS has achieved efficiencies in
adjudicating Form I-90 that have reduced the relative cost per
adjudication. Thus, in this final rule DHS implements a fee for Form I-
90, Application to Replace Permanent Resident Card, of $405 when filed
online and a $415 fee for a paper filed Form I-90. DHS appreciates the
implication that it may charge more for Form I-90, but to maintain
consistency with full cost recovery. DHS declines to make any
adjustments in this final rule in response to this comment.
5. Form I-131, Application for Travel Document, Refugee Travel
Documents
Comment: A commenter stated that comparing Form I-131, Application
for Travel Document, to a passport to set the fee for refugee travel
documents is inappropriate because passports are valid for 10 or 5
years versus the 1 year for the Refugee Travel Document. The commenter
recommended that refugee travel documents be valid for longer than a
year for this reason and because other countries often require that
travel documents be valid for 6 months beyond the expected period of
stay. Furthermore, the commenter stated that adult U.S. passport
renewals do not include a $35 execution fee, implying that DHS should
not consider the execution fee in establishing the fee for a refugee
travel document.
Response: DHS declines the commenter's request to extend the
validity length of refugee travel documents (RTD). DHS did not propose

[[Page 46839]]

changes to the validity length of the RTD that is codified at 8 CFR
223.3(a)(2) and, besides the commenter, we do not think the public
would think that an increase to the validity length of an RTD would be
a subject open for public comment in a rule dealing primarily with
fees. The fee for an RTD is linked to the fee for a passport because
Article 28 of the 1951 U.N. Convention Relating to the Status of
Refugees (``1951 Refugee Convention''), and the 1967 U.N. Protocol
Relating to the Status of Refugees ''the 1967 Refugee Protocol''),
which, by reference, adopts articles 2 through 34 of the 1951 Refugee
Convention, requires state parties to issue documents for international
travel to refugees lawfully staying in their territory and that fees
charged for such documents shall not exceed the lowest scale of charges
for national passports. See United Nations Protocol Relating to the
Status of Refugees, Jan. 13, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267
1967 Refugee Protocol. Consistent with past practice, DHS is increasing
the fee for Form I-131, Application for Travel Document, when
requesting a refugee travel document by $10, the amount of increase in
the cost of a U.S. passport to $145 for adults and $115 for children.
However, the term of an approved RTD is not related to that of a
passport, and it will not be changed in this rule.
6. Form I-131A, Application for Travel Document (Carrier Documentation)
Comment: A few commenters opposed the fee increase for Form I-131A.
One of these commenters questioned why the fee is being increased by
$435, or 76 percent, when USCIS would only have to reimburse the
Department of State (DOS) with $385 to replace lost documents. A
commenter asked if DHS had considered the effect of this ``massive''
fee increase on a vulnerable population. Some commenters claimed DOS
would not have to be reimbursed if USCIS international offices had not
been closed.
Response: DHS acknowledges that the $1,010 fee established in this
final rule for Form I-131A, Application for Travel Document (Carrier
Documentation), represents a substantial increase of $435 relative to
the previous fee. Consistent with full cost recovery and the
beneficiary-pays principle emphasized throughout this final rule, the
new fee of $1,010 represents USCIS' estimated full cost of adjudicating
Form I-131A, including the cost of providing similar services to asylum
applicants and other immigrants without charge, at the time of USCIS'
FY 2019/2020 fee review.
Before Form I-131A was published, USCIS had completion rate data
specific to providing carrier boarding documents. However, DHS did not
use that completion rate data to establish a separate Form I-131A fee
when it published Form I-131A. Instead, DHS set the Form I-131A fee to
be the same as for other travel documents. Establishing Form I-131A and
requiring fee payment using Pay.gov standardized requirements that were
somewhat different or informal before the creation of Form I-131A.
While not discussed in the FY 2016/2017 fee rule, DHS believed that the
standardized Form I-131A might reduce the completion rate, and the
cost, of the workload. When USCIS conducted its FY 2019/2020 fee
review, it separated completion rate data for Forms I-131 and I-131A
and proposed separate fees. At this point, Form I-131A existed for
several years, so the completion rate data reflect the standardized
process. Thus, we are setting a more accurate fee to reflect the full
cost of adjudicating Form I-131A. The final fee for Form I-131A
reflects the cost of USCIS processing, including the costs of USCIS
reimbursement to DOS for action taken on behalf of USCIS. At the time
of its FY 2019/2020 fee review, USCIS did not yet have sufficient
information regarding office closures and the transfer of
responsibilities between USCIS and the DOS to accurately reflect
anticipated changes in the average cost of adjudicating Form I-131A.
Thus, any potential cost savings related to the reduction in the number
of offices USCIS maintains abroad are not included in this final rule.
USCIS will incorporate all newly available information in its next fee
review.
Commenters who claimed that USCIS would not need to reimburse the
Department of State had it maintained its previous international
presence are mistaken. USCIS reimburses DOS for all work performed on
its behalf. This includes work performed on behalf of USCIS in
locations where USCIS is not present and in locations where USCIS has
an office. As USCIS has never had a presence in all countries where an
individual may need to file Form I-131A, DOS has always adjudicated
some Forms I-131A on behalf of USCIS. Altering USCIS's international
presence did not change this operational necessity. DHS declines to
make any changes in this final rule in response to these comments.
Comment: A commenter wrote that DHS failed to apprise stakeholders
of its reasoning for the substantial increase to the Form I-131A fee.
The commenter added that there is no justification for charging LPRs
for the privilege of returning to their homes, jobs, and families.
Response: DHS disagrees with the commenter's assertion that DHS
failed to explain or justify the fee increase for Form I-131A. In the
NPRM, DHS explained that in the FY 2016/2017 fee review, USCIS
calculated a single fee for Forms I-131 and I-131A. See 84 FR 62306
(Nov. 14, 2019). DHS clarified that in the FY 2019/2020 fee review,
USCIS calculated a separate fee for Form I-131A to reflect differences
between Form I-131 and Form I-131A, including the fact that Form I-131A
is adjudicated abroad, where costs are typically greater than the cost
of adjudicating an equivalent form domestically. This differentiation
between Form I-131 and Form I-131A is consistent with the beneficiary-
pays principle of user emphasized throughout the NPRM and this final
rule, as it ensures that the fee an applicant pays better reflects the
estimated full cost to USCIS of adjudicating the application. DHS
declines to make changes in this final rule in response to the comment.
Comment: One commenter claimed these new fees are an attempt
prevent LPRs from becoming U.S. citizens.
Response: DHS rejects the claim that its decision to adjust the fee
for Form I-131A to $1,010 is motivated by any consideration other than
USCIS achieving full cost recovery. The fee of $1,010 represents USCIS'
estimated full cost of adjudicating Form I-131A, including the cost of
providing similar services to asylum applicants and other immigrants
without charge, at the time of USCIS' FY 2019/2020 fee review. DHS
declines to make changes in this final rule in response to this
comment.
7. Form I-192, Application for Advance Permission To Enter as a
Nonimmigrant
Comments: A commenter said it did not oppose a fee increase
associated with Form I-192 but wrote that the fee increase is quite
high for an application fee that, if approved, grants entry to the U.S.
for a relatively short time. The commenter said the proposal would cost
Canadian citizens $1,400 on average and questioned whether USCIS was
considering increasing the duration of authorized presence in the U.S.
to a minimum of 5 years and a maximum of 10 years.
Many commenters suggested that the $485 or 52 percent increase for
fees related to visa applications for victims of crime and victims of
trafficking in persons is ``outrageous.'' A commenter wrote that the
proposal to raise the Form I-192 fee defeats the purpose of

[[Page 46840]]

the U-visa, which protects victims of crime. The commenter wrote that
raising fees to make this protection inaccessible to victims of crime
runs counter to Congress' intent to provide protection to such victims
for ``compelling humanitarian and public policy/safety reasons.''
Another commenter stated that the $485 increase for Form I-192 was
particularly steep for U nonimmigrant status petitioners who often have
medical bills related to being victims of crimes and who may not work
before the submission of the application.
A few commenters said that raising the fee for Form I-192 may make
it harder, if not impossible, for survivors of crime to petition for U
nonimmigrant status. One commenter suggested that because survivors of
domestic violence often have suffered financial abuse and survivors of
human trafficking often have suffered financial exploitation, they will
likely be unable to pay the fees.
A commenter indicated that the increase in the filing fee for Form
I-192, combined with the elimination of a fee waiver for this form,
would effectively eliminate a statutorily available waiver of
inadmissibility for many applicants and prevent those inadmissible
immigrants from obtaining status.
Multiple commenters stated that the NPRM ignores the fact that many
applicants for survivor-based relief must also file ancillary forms
that do have fees, including Form I-192.
Response: DHS acknowledges a considerable increase of the fee for
Form I-192, Application for Advance Permission to Enter as a
Nonimmigrant. The new fee established in this final rule represents the
estimated full cost of adjudication. \85\ See INA section 286(m), 8
U.S.C. 1356(m). As with other USCIS fees, the fee amount is derived
from the cost to USCIS of providing the relevant service; the fee is
not related to the duration of the benefit received. Therefore, DHS did
not evaluate potential changes in the duration of authorized presence
as part of this final rule.
---------------------------------------------------------------------------

\85\ In accordance with INA section 286(m), 8 U.S.C. 1356(m),
USCIS total costs include the cost of similar services provided
without charge to asylum applicants and other immigrants, which
encompass fee exemptions, waivers, and setting fees below the amount
suggested by the model. Throughout the remainder of this rule, when
USCIS refers to the estimated full costs of adjudication, in the
interest of the economy of words and improving readability, that
term includes the cost of services provided without charge to asylum
applicants and other immigrants in accordance with the INA.
---------------------------------------------------------------------------

DHS recognizes the commenters' concerns regarding vulnerable
populations, particularly applicants for T nonimmigrant status and
petitioners for U nonimmigrant status, who use Form I-192. Consistent
with its commitment to preserve access to required fee waivers for
populations identified in statute, the fee for Form I-192 will remain
waivable for those seeking T and U nonimmigrant status, provided that
those applicants file Form I-912, Request for Fee Waiver and
demonstrate that they meet the requisite criteria for approval. See 8
CFR 106.3. DHS believes that maintaining access to fee waivers for
these populations mitigates any concerns that the fee increase for Form
I-192 would limit access to protections.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Another commenter stated that most of its clients who are
pursuing T or U nonimmigrant status must file supplemental forms that
often have very high fees, including Form I-192. The commenter
indicated that most of the issues disclosed require very little, if
any, further adjudication from USCIS, and, therefore, the fee is
unnecessary and unfair.
Response: USCIS data also indicates that most aliens pursuing T and
U nonimmigrant status must file Form I-192. Those aliens may request a
fee waiver. DHS disagrees that Form I-192 requires little effort by
USCIS. USCIS evaluates the evidence regarding the inadmissibility
charges present (immigration violations, criminal issues, potential
fraud, etc.) and the alien's responses and evidence provided to address
those charges. Depending on the number of inadmissibility grounds and
complexity of the individual filing, those adjudications may require
considerable time and resources.
In many cases, aliens file Form I-192 with U.S. Customs and Border
Protection, which adjudicates those filings. In the NPRM, DHS explained
that USCIS had incorporated cost and workload volume information from
CBP into its cost model to determine a single fee for Form I-192 that
reflects the estimated full average cost of adjudicating Form I-192 for
CBP and USCIS. See 84 FR 62321.
DHS declines to make changes in this final rule in response to the
comment.
Comment: One commenter stated that Form I-192 was created to
encourage eligible individuals to complete the immigrant visa process
abroad, promote family unity, and improve administrative efficiency.
Response: Form I-192, Application for Advance Permission to Enter
as a Nonimmigrant, is not part of the immigrant visa process. It
appears that the commenter may have confused Form I-192 with Form I-
601A, Application for Provisional Unlawful Presence Waiver. DHS
declines to make changes in this final rule in response to the comment.
8. Form I-193, Application for Waiver of Passport and/or Visa
Comment: One commenter said that the proposed 377 percent fee
increase for Form I-193 is ``startling.'' Another commenter stated that
the 377 percent increase is ``outrageous'' given the time and effort
required to fill out and adjudicate the form with just one page of
content. The commenter also stated that a small number of applicants
use the form to travel, usually in extenuating circumstances beyond the
control of the applicant. As such, it is unlikely that there would be a
high incidence of fraud or abuse to justify such a fee increase. The
commenter also said that it is unreasonable to expect applicants to pay
the $2,790 fee on the spot.
Response: DHS acknowledges a substantial increase in the fee for
Form I-193. In its NPRM, DHS explained that USCIS incorporated cost and
workload volume information from CBP into its ABC model to determine a
single fee for Form I-193 that reflects the estimated full average cost
of adjudicating Form I-193 for CBP and USCIS. See 84 FR 62321. CBP
adjudicates most filings of Form I-193 and incurs a majority of the
costs associated with adjudication. As documented in the NPRM, in FY
2017 CBP incurred an estimated $18.0 million in costs to adjudicate
filings of Form I-193. This final rule establishes the fee for Form I-
193 at a level sufficient to recover the full average estimated cost of
adjudication for both USCIS and CBP.
DHS declines to make changes in this final rule in response to
these comments.
9. Form I-290B, Notice of Appeal or Motion
Comment: A commenter stated that increasing the fee for Form I-290B
places U-visa petitioners at risk of not being able to exercise their
due process rights and threatens their ability to appeal or reopen
their petition. Another commenter recommended that USCIS fully refund
the filling fee for Form I-290B if the agency determines, after
adjudicating, that the underlying petition denial was the result of
clear USCIS error.
Response: DHS recognizes the importance of maintaining access to
Form I-290B to ensure that individuals have the ability to appeal or
file a

[[Page 46841]]

motion to reopen or reconsider a decision. In recognition of this, DHS
deviated from the beneficiary-pays principle to transfer some of the
costs for adjudicating Form I-290B to all other fee payers. The
proposed fee for Form I-290B was far below the estimated cost to USCIS
of processing I-290B filings, an increase of only 5 percent. See 84 FR
62293. In this final rule, DHS adjusts the fee for Form I-290B from
$675 to $700, an increase of approximately 3.7 percent. Furthermore, in
the NPRM, DHS clarified that Form I-290B would remain fee-waivable for
VAWA self-petitioners, applicants for T nonimmigrant status and
petitioners for U nonimmigrant status, petitioners, and T nonimmigrant
status applicants. See 84 FR 62297. DHS believes that maintaining
access to fee waivers for vulnerable populations mitigates any concerns
that the fee increase for Form I-290B would limit access for protected
categories of individuals.
In general, USCIS does not refund a fee or application regardless
of the decision on the application. There are only a few exceptions,
such as when USCIS made an error which resulted in the application
being filed inappropriately or when an incorrect fee was collected.
DHS declines to make changes in this final rule in response to
these comments.
10. Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
Comment: Multiple commenters opposed the proposed fee increase for
Form I-360, stating that it would harm the ability of religious
organizations to petition for their workers. Commenters stated that
this would impact the non-profit organizations associated with these
religious workers and the communities that they support.
Response: DHS recognizes the importance of maintaining access to
Form I-360 for individuals and organizations. In recognition of this,
DHS proposed in the NPRM to deviate from the beneficiary-pays
principle, transfer some of the costs for adjudicating Form I-360 to
all other fee payers, and hold the fee for Form I-360 far below the
estimated full cost to USCIS of processing I-360 petitions, proposing
to increase the fee by only 5 percent. See 84 FR 62293. The fee to
recover full cost would have exceeded $5,500.\86\ Such a high fee would
place an unreasonable burden on petitioners. In this final rule, DHS
adjusts the fee for Form I-360 from $435 to $450, an increase $15 or
approximately 3.4 percent as discussed in the proposed rule. DHS
declines to make changes in this final rule in response to these
comments.
---------------------------------------------------------------------------

\86\ See the FY 2019/2020 Immigration Examinations Fee Account
Fee Review Supporting Documentation in the docket for more
information.
---------------------------------------------------------------------------

11. Form I-485, Application To Register Permanent Residence or Adjust
Status
a. Debundling Interim Benefits
Comment: Multiple commenters wrote that the proposed debundling of
interim benefits led to excessive fees. Many commenters stated that the
steep increase in fees, along with the elimination of waivers will make
adjustment of status unattainable for many low-income and working-class
people. A few commenters said this change would create a catch-22 where
immigrants with low income can afford to apply to adjust but cannot
afford to seek employment authorization. A commenter stated that the
proposed change would force highly skilled workers to pay $1,075 more
for dual-intent visas than H-1B or L-1 dual-visa applicants. Other
comments wrote that charging fees for concurrently filed ancillary
Forms I-765 and I-131 with Adjustment of Status applications, along
with renewals, would create a perverse incentive for USCIS to delay
interim benefit and Form I-485 adjudications in order to receive
additional funds. A few commenters wrote the proposed changes would
force immigrants out of the legal immigration system. Other commenters
added that this change could contribute to family separation. A
commenter claimed USCIS ignores the fact that children will need to
have a travel authorization, and therefore will still need to file Form
I-131 for advance parole. One commenter stated this change will deny
immigrants the path to citizenship. Another commenter said USCIS'
purpose is an attempt to discourage families from being able to afford
to apply for legal permanent residence.
Response: DHS acknowledges the total cost increase for adjustment
of status applicants who request interim benefits. The fees DHS
establishes in this final rule accurately reflect the estimated full
cost of adjudicating those applications, including the cost of
providing similar services to asylum applicants and other immigrants
without charge. USCIS did not realize the operational efficiencies
envisioned when it introduced bundled filings for interim benefits and
adjustment of status applications, which was implemented to address the
same commenter accusation of a revenue incentive. See 72 FR 4894
(stating, ``This creates the perception that USCIS gains by processing
cases slowly.''). USCIS has no data to indicate that it takes less time
to adjudicate interim benefits bundled with an I-485 than it does to
adjudicate standalone I-131 and I-765 filings. Therefore, DHS declines
to adopt the commenters' recommendation to continue bundled adjustment
of status filings; this final rule eliminates bundling.
Individuals applying for adjustment of status are not required to
request a travel document or employment authorization. With bundled
interim benefits, individuals may have requested interim benefits that
they did not intend to use because it was already included in the
bundled price. Debundling allows individuals to pay for only the
services actually requested. Thus, many individuals may not pay the
full combined price for Forms I-485, I-131, and I-765.
DHS and USCIS are not profit-seeking entities. Neither benefit from
delays in Form I-485 adjudications that may result in individuals
filing for additional interim benefits. USCIS would use any revenue
received to fund immigration adjudication services and minimize future
fee increases.
After adjusting the results of the FY 2019/2020 fee review to
account for removal of the ICE transfer, exclusion of the DACA renewal
fee, and other changes, DHS establishes the fee for Form I-131,
Application For Travel Document, as $590 and the fee for Form I-765,
Application for Employment Authorization as $550.
b. Form I-485 Child Fee
Comment: Some commenters opposed this provision because of its
effect on families and children. A commenter said this NPRM would
burden families who would be required to pay an increased total cost
for multiple concurrent adjustments and create barriers for low-income
and working-class individuals. Another commenter said this change would
have a negative effect of children and youth, either delaying their
ability to unite with family or deterring it completely.
Response: DHS acknowledges a substantial increase in the fee for
Form I-485 for child applicants who are under 14 years old and are
filing with at least one parent. Consistent with the beneficiary-pays
principle of user fees emphasized throughout this final rule, DHS
adjusts the fee for all Forms I-485, except those filed by refugees, to
$1,130 to reflect the estimated full cost of adjudication. This fee
represents an increase of $380 relative to the previous fee of $750.
DHS declines to make

[[Page 46842]]

changes in this final rule in response to these comments.
Comment: A commenter cited USCIS' justification for removal of the
reduced fee for children because processing them is not distinguished
by age. The commenter stated that, if the completion rate is influenced
by time to adjudicate (e.g., conduct background checks), this would
likely be shorter for children. The commenter said USCIS has not
provided data or analysis to address this concern, and that this an
extreme hike for a small portion of applications.
Response: USCIS used the data available at the time when it
conducted the FY 2019/2020 fee review to determine the fee for Form I-
485. USCIS does not have data to support the commenter's contention
that that the time required to adjudicate a Form I-485 (i.e., the
completion rate) is less for a child's application than for an adult's
application, because USCIS data does not separate Form I-485
adjudications by the age of the applicant. See 84 FR 62305 and 81 FR
73301. Therefore, USCIS calculated the estimated average cost of
adjudicating all Forms I-485. In this final rule, DHS adjusts the fee
for all Forms I-485, except those filed by refugees, to $1,130 to
reflect the estimated full cost of adjudication.
DHS declines to make changes in this final rule in response to the
comment.
c. Form I-485 Reduced Fee for Asylees
Comment: Multiple commenters highlighted the cost to asylum
applicants and asylees of filing Form I-589, Form I-765, and if granted
asylum, Form I-485 to adjust status. A commenter stated, ``Regarding
asylee Form I-485 applications, this proposed rule would cause a
significant harm to be placed on those who have come to the United
States after fleeing persecution in their country of origin. After
waiting years for an asylum interview and sometimes more than a year
after that interview for a grant of asylum, an asylee should not have
any additional obstacles placed on their path to obtaining a green
card, which they will use to show their lawful presence and employment
authorization. This proposed change is an unnecessary impediment to
asylees' integration in our society and economy.'' Another commenter
wrote that the elimination of fee waivers for adjustments of status,
including asylees, runs counter to the intent of Congress and will
create a significant barrier that will prevent many asylees from
regularizing their immigration status. Another commenter reiterated
that the high fees for Form I-485 and ancillary benefits and the
elimination of fee waivers will make adjustment of status unattainable
for many low-income and working class people, particularly asylees. The
commenter stated that increasing the overall cost of adjustment of
status would undermine family unity and prevent many low-income
individuals from becoming permanent residents.
Response: DHS recognizes the additional burden placed on asylum
applicants with the introduction of a $50 fee for Form I-589 in this
final rule. Therefore, DHS establishes in this final rule a reduced fee
of $1,080 for Form I-485 when filed by an individual who has been
granted asylum after having paid the $50 fee for Form I-589 as a
principal applicant. See new 8 CFR 106.2(a)(16)(ii). The reduced fee
will be available to otherwise qualifying individuals regardless of
whether USCIS or EOIR ultimately granted the asylum claim. DHS
reiterates, as it did in the NPRM and this final rule, that DHS does
not intend to deter asylum applications with the introduction of the
$50 fee for Form I-589. DHS believes that effectively refunding the
Form I-589 fee for approved asylees when they adjust will ensure that
individuals with legitimate asylum claims do not experience a net
increase in cost through the time they adjust status to that of lawful
permanent resident as a result of the new fee for Form I-589.
DHS provides in this final rule that only one Form I-485 reduced
fee filing will be available per Form I-589 fee paid. This approach
ensures that USCIS will only provide a single $50 discount for each
Form I-589 filing that ultimately results in a grant of asylum, meaning
that the total value of fee reductions available to Form I-485
applicants will match the value of Form I-589 fees collected from those
applicants. DHS makes the reduced fee available only to the principal
applicant on an approved Form I-589 for which the $50 fee was paid. The
reduced fee Form I-485 may not be transferred from the principal
applicant to derivatives listed on the same Form I-589 or to other
derivative beneficiaries. If DHS provided all individuals granted
asylum the opportunity to file Form I-485 with a reduced fee, the
ultimate value of the fee reductions could exceed the value of the
revenue generated from the Form I-589 fee, resulting in a net cost to
USCIS that must be passed on to other fee payers. Similarly, DHS
provides that an individual qualifying for the Form I-485 reduced fee
may file Form I-485 only once utilizing the reduced fee. If USCIS
accepts a Form I-485 filed with the reduced fee and subsequently denies
the application, that applicant may reapply as permitted but will not
qualify for the reduced fee on any subsequent filing. This ensures that
the value of the fee reductions will not exceed the value of the Form
I-589 fees paid by the affected applicants. If USCIS rejects a Form I-
485 filed by an asylee with a reduced fee, the applicant will not have
used their single reduced fee filing, and the applicant may reapply and
qualify for the reduced fee.
DHS did not change its cost projections, volumes forecasts, or
revenue anticipated from Form I-485 in this final rule in response to
the introduction of the reduced fee for Form I-485. DHS does not
anticipate receiving any Form I-485 filings during the FY 2019/2020
biennial period for this fee rule that are eligible for the reduced
fee. This reflects the fact that asylum applicants will begin to pay
the $50 fee for Form I-589, a pre-requisite to qualify for the reduced
fee Form I-485, as of the effective date of this final rule. Those
asylum applicants must have their claims adjudicated and approved
before becoming eligible to adjust status one year after their asylum
claim was granted. Thus, DHS does not anticipate any reduced fee Form
I-485 filings until more than 1 year after the effective date of this
final rule. Furthermore, because DHS anticipates no reduced fee filings
during FY 2019/2020, USCIS anticipates no costs during FY 2019/2020
associated with charging less than the estimated full cost of
adjudication of Form I-485 that must be reallocated to other fee-paying
applicants. Therefore, no fees increase in this final rule as a result
of the introduction of the reduced fee Form I-485, and the fee for Form
I-485 would remain $1,130 even in the absence of the reduced fee. USCIS
will evaluate the Form I-485 reduced fee in future fee reviews using
all available data at that time, consistent with its evaluation of all
other fees.
d. Other Form I-485 Comments
Comment: A commenter said USCIS' proposed changes to Supplement A
to Form I-485 have no justification. The commenter said USCIS proposes
removing from the Supplement A form the instruction that there is no
fee for certain persons. The commenter stated that USCIS is making it
even more difficult for applicants to identify the few instances where
they are not obligated to pay large fees. The commenter wrote that the
change would obfuscate the fact that some individuals are exempted from
paying the fee by statute, leading fewer people to apply because they
would erroneously believe they must pay the fee. The commenter

[[Page 46843]]

also wrote that the provision creates a way for USCIS to re-investigate
granted adjustments under INA section 245(i), 8 U.S.C. 1255(i), going
back more than 20 years, resulting in potentially stripping lawful
permanent residents of their status.
Response: DHS erroneously stated in the NPRM that it proposed
deleting text from Form I-485, Supplement A, related to those
categories of adjustment applicants who are not required to pay the
$1,000 sum. No such text appears on the form itself, but rather is
found in the instructions. DHS will retain the language concerning the
exceptions from paying the INA section 245(i), 8 U.S.C. 1255(i) sum in
the Instructions for Form I-485 Supplement A, and in the rule.
Comment: A commenter recommended phasing in the increased Form I-
485 fee over several years. A commenter recommended that the validity
period of employment authorization and advance parole for dependent
children also be increased from 1 to 2 years.
Response: In this final rule, DHS adjusts the fee for all Form I-
485 applications, except those filed by refugees, to $1,130 to reflect
the estimated average full cost of adjudication. DHS declines to adopt
the commenter's suggestion of phasing in the increased fee over time,
because USCIS would not be able to achieve full cost recovery during
the phase-in period. DHS also declines to adopt the recommendation to
extend the validity period of employment authorization and advance
parole for dependent children.
Comment: A commenter opposed deleting language regarding 245(i)
penalty fee exemptions from the regulations.
Response: In this final rule, DHS includes language in 8 CFR
106.2(a)(17) detailing the categories of applicants for adjustment of
status under INA section 245(i), 8 U.S.C. 1255(i) who are not required
to submit the $1,000 sum per the statute.
Comment: One commenter said that the increased fee for the Form I-
485, when considered in combination with the separate fees for the Form
I-765 and Form I-131, will have negative impacts on industries that use
the Employment-Based Third Preference Unskilled Workers (Other Work)
category, such as meat/poultry processers, home healthcare providers,
hospitality/lodging employees.\87\ The commenter assumes that the rate
of pay for workers in those industries is not as high as in other
fields and the fees represent a larger percentage of those worker's
wages.
---------------------------------------------------------------------------

\87\ See USCIS, Employment-Based Immigration: Third Preference
EB-3, available at https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-third-preference-eb-3
(last reviewed/updated March 27, 2020).
---------------------------------------------------------------------------

Response: The NPRM emphasizes the beneficiary-pays principle. DHS
believes that a single fee for Form I-485 will reduce the burden of
administering separate fees and better reflect the estimated full cost
of adjudication. By making the filing fee equal for all applicants,
whether they are family-based or employment-based, the cost of
adjudication for the benefit of each individual applicant will be
sustained by that applicant, and other applicants are not burdened with
subsidizing the cost of adjudication. In this final rule, DHS adjusts
the fee for all Form I-485 applications, except those filed by refugees
and certain Special Immigrants, to $1,130 to reflect the estimated
average full cost of adjudication. See 8 CFR 106.2(a)(17)(iii).
Requiring fees paid for each renewal of interim benefits, such as
employment or travel authorization, also aligns with the beneficiary-
pays principal by preventing other applicants from being burdened with
fees for benefits they do not wish to receive or subsidizing fees for
benefits for which they do not apply. The fee increases associated with
Form I-485 and interim benefits are not exclusive to employment-based
applicants and therefore are not adjusted based on the filing category
or rate of pay of workers.
DHS declines to make changes in this final rule in response to the
comment.
12. Form I-526, Immigrant Petition by Alien Investor
Comment: A commenter said the fee review for EB-5 forms, such as
Form I-526, failed to meet the objectives of ensuring USCIS has
adequate resources and to recover the full operating costs of
administering the national immigration benefits system. The commenter
said the fee increase for Form I-526 was too low to balance the
workload increase reported by USCIS and would not reverse the current
``critically inadequate'' service associated with this form. The
commenter also said the fee increase was too low given that this fee is
paid by affluent immigrant investors ``who value time.'' The commenter
cited USCIS data to demonstrate that the processing time associated
with Form I-526 had increased since 2016 and wrote that time spent
processing this application was likely to increase due to the EB-5
Immigrant Investor Program Modernization regulation that went into
effect on November 21, 2019. See 84 FR 35750. The commenter wrote that
the 9 percent increase in the fee for this form suggests that USCIS
considers the 3-4-year processing time for this form to be acceptable.
However, the commenter also wrote that USCIS' projected workload volume
for Form I-526 was ``three times too high'' considering data from 2018-
2019. The commenter said the EB-5 Immigrant Investor Program
Modernization regulation would dampen demand for use of this form and
suggested that the number of form receipts for 2020 would be less than
the 5,000 average annual receipts from 2018-2019. The commenter wrote
that due to this overestimation of the number of Form I-526 receipts,
the fee analysis ``overestimates revenue and underestimates receipt
fees needed to cover costs.'' The commenter said that if the number of
Form I-526 receipts is closer to 4,000, the $16 million in revenue
would not provide enough financial resources to cover costs and provide
adequate service. The commenter suggested that USCIS had failed to
consider the future workload associated with ``thousands'' of Form I-
526 submissions that are still pending from previous years in its fee
analysis, and that the agency should account for ``an environment of
long backlogs and falling receipts'' in revising the fee for this form.
The commenter reiterated that the current processing time for this form
was far too long and stated that the agency should consider targeting
more reasonable processing times for this form, such as the 240-day
target recently suggested in the U.S. Senate. Another commenter wrote
that USCIS had overestimated the workload volume associated with Form
I-526.
Response: In its fee reviews, USCIS evaluates the estimated cost of
processing all incoming workloads to determine the fees necessary to
recover full cost. USCIS does not consider the cost of processing
existing pending workloads in setting fees, as setting fees on that
basis would place the burden of funding the processing of previously
received applications and petitions on future applicants. Thus, DHS
declines to include the cost of all pending Form I-526 workload in this
analysis and final rule.
DHS acknowledges that USCIS' volume projections for Form I-526 in
the FY 2019/2020 fee review substantially exceed the receipts in FY
2018 and FY 2019. As with other forms, USCIS created its volume
projections for Form I-526 using the best information available at the
time it conducted the FY 2019/2020 fee review. The commenter is

[[Page 46844]]

correct in stating that if USCIS has overestimated the receipt volume
for Form I-526, then it has also overestimated the amount of revenue
that the revised Form I-526 fee will generate. Such a scenario would
also imply that USCIS had overestimated the total amount of costs to be
recovered, as fewer staff would be necessary to adjudicate the newly
received Forms I-526. However, it is possible that, as the commenter
contends, if USCIS overestimated the anticipated volume of Form I-526
filings, it underestimated the Form I-526 fee that would be necessary
to recover the full cost of adjudication. USCIS will review and
reevaluate all fees during its next biennial fee review. If USCIS
determines that the fee is insufficient to recover full cost, DHS may
adjust the fee through a future rulemaking.
DHS acknowledges that current processing times for Form I-526
extend far beyond its processing time goals. DHS believes that
adjusting USCIS fees to provide for full cost recovery constitutes the
best means of addressing resource constraints that have led to growth
in pending caseloads. DHS declines to make changes in this final rule
in response to the comment.
Form I-539, Application To Extend/Change Nonimmigrant Status
Comment: A commenter opposed the proposed fee increase for Form I-
539 because it would pose a financial burden to clients who are
survivors of violence and U nonimmigrants.
Response: DHS acknowledges that this final rule increases the fee
for Form I-539 to $390 if filed online and $400 if filed on paper.
However, DHS disagrees with the commenter's assertion that the fee
increase for Form I-539 would unduly burden U nonimmigrants. In its
NPRM, DHS clarified that those seeking or holding T and U nonimmigrant
status would remain eligible to apply for fee waivers for Form I-539
and other associated forms. See 84 FR 62297. DHS believes that
maintaining access to fee waivers for these vulnerable populations
mitigates any concerns that the increase in the fee for Form I-539
would limit access for protected categories of individuals. DHS
declines to make changes in this final rule in response to the comment.
13. Form I-589, Application for Asylum and Withholding of Removal Fee
Comment: Multiple commenters generally opposed charging asylum
applicants a fee. Commenters stated:
DHS should not expect people fleeing harm and in need of
protection to pay a fee.
These individuals often have few economic resources, the
few resources that they do have are necessary for survival.
They should not endure the added burden of a fee to gain
asylum and other immigration services.
Asylum seekers joining family in the United States are
often financially dependent on their family members, and an asylum fee
would create an additional burden on their families.
Asylum should not be based on an applicant's socio-
economic status.
Fees would be detrimental to survivors of torture,
impacting their mental health and well-being by obstructing access to
live and work in the United States.
A $50 fee would further endanger asylum seekers' health
and safety.
DHS should consider asylum seekers' humanity and suggested
that the rule dehumanized the issue.
Commenters rejected the notion that those seeking asylum
represent a cost that the nation must recoup.
If the revenue from these fees were being used to
assistance to those seeking asylum, they would be less opposed to the
fee increases.
DHS did not provide adequate justification for charging an
asylum fee.
Response: DHS acknowledges the humanitarian plight of legitimate
asylum seekers. In recognition of the circumstances of many of these
applicants, DHS establishes a $50 fee for Form I-589 for most
applicants (unaccompanied alien children in removal proceedings who
file Form I-589 with USCIS are not required to pay the fee). DHS
expects that charging this fee will generate some revenue to offset
adjudication costs, but DHS is not aligning the fee with the
beneficiary-pays principle, because the estimated cost of adjudicating
Form I-589 exceeds $50. As DHS stated in its NPRM, it does not intend
to recover the full cost of adjudicating asylum applications via the
Form I-589 fee. See 84 FR 62318. Instead, DHS establishes a $50
application fee to generate some revenue to offset costs. DHS will
recover the additional costs of asylum adjudications (via cost
reallocation) by charging other fee-paying applicants and petitioners
more, consistent with historical practice and statutory authority. See
INA section 286(m), 8 U.S.C. 1356(m). DHS does not intend to discourage
meritorious asylum claims or unduly burden any applicant, group of
applicants, or their families.
In the NPRM, DHS provided substantial justifications for
establishing an asylum application fee. DHS explained that USCIS has
experienced a continuous, sizeable increase in the affirmative asylum
backlog over the last several years. DHS explored ways to alleviate the
pressure that the asylum workload places on the administration of other
immigration benefits and determined that a minimal fee would mitigate
fee increases for other immigration benefit requests. See 84 FR 62318.
DHS estimated the cost of adjudicating Form I-589 and considered asylum
fees charged by other nations. DHS also considered the authority
provided in INA section 208(d)(3), various fee amounts, whether the fee
would be paid in installments over time or all at once, if the fee
would be waivable, and decided to establish a minimal $50 fee.
As stated in the NPRM, DHS believes that the fee can be paid in one
payment, would generate revenue to offset costs, and not be so high as
to be unaffordable to an indigent applicant. See 84 FR 62319. Further,
DHS has provided the advance notice of and the reasons for the change
in its longstanding policy as required by the APA. This change will
only apply prospectively to asylum applications filed after the
effective date of this final rule.
Nevertheless, as a result of the concerns raised by commenters, DHS
is providing in this final rule that Form I-485 filed in the future for
principal asylum applicants who pay the Form I-589 fee of $50 and are
granted asylum and apply for adjustment of status will pay a fee that
is $50 less than other Form I-485 filers. See new 8 CFR
106.2(a)(17)(ii). DHS will provide only one reduced fee per Form I-589
filing fee paid. If a Form I-485 filing with a $50 reduced fee is
denied, USCIS will not accept future discounted I-485 filings from the
same applicant. That is because DHS anticipates a one-to-one
relationship between the fees collected and discounts provided. If an
approved principal asylee were to file multiple Forms I-485 with the
reduced fee, it could illogically result in the $50 fee for Form I-589
causing a net revenue loss to USCIS. DHS will not deviate from its
primary objective of this final rule to set fees at a level necessary
to recover estimated full cost by allowing multiple I-485 reduced fee
filings. Unaccompanied alien children in removal proceedings who filed
Form I-589 with USCIS, and thus did not pay the $50 Form I-589 fee, are
not eligible to file Form I-485 with the reduced fee.
Comment: Additional commenters on the asylum fee generally opposed
the

[[Page 46845]]

proposed fees for asylum indicating that the proposal runs counter to
U.S. ideals, and stated:
The United States has no precedent in international law to
charge for asylum, the fee does not support the humanitarian interests
of the United States, would be against the values of the United States
and Congressional intent, and our moral and constitutional obligation
to provide sanctuary to those who need it.
The United States would become one of only four countries
to charge such a fee if DHS implemented the proposal.
Processing asylum requests is a fundamental right
guaranteed by international agreements to which the United States
adheres.
The United States should endeavor to resolve, rather than
exacerbate, humanitarian crises and the U.S. is required under domestic
and international law to provide refuge to people fleeing violence and
seeking protection in the United States.
Significant changes to the conditions of asylum services
should be carried out by Congress, and not through administrative
processes.
Charging a fee for asylum requests is discrimination and
an attempt to block legal immigration of people of color and/or non-
wealthy backgrounds.
The right to seek and to enjoy asylum from persecution is
enshrined in the United Nations Universal Declaration of Human Rights
of 1948 and supported by the 1951 Convention Relating to the Status of
Refugees and the 1967 Protocol Relating to the Status of Refugees.
The United States is obligated to accept asylum seekers
under international and domestic law, and therefore should not refuse
asylum seekers because of an inability to pay the fee. Thus, the
proposed asylum fees would be a dereliction of legal duty and violate
the 1951 Refugee Convention, which prevents signatory countries from
taking any action that would ``in any matter whatsoever'' expel or
return a refugee to a place where his or her life or freedom would be
threatened.''
The creation of an asylum fee suggests that the United
States will shy away from international problems rather than confront
them.
One commenter said that under the Universal Declaration of
Human Rights, the United States is obligated by international law to
accept refugees and accord them certain rights and benefits, such as
access to courts.
A fee for asylum violates the INA and that Congress did
not intend to authorize fees for asylum applicants, but instead
intended that the cost services to asylum seekers should be paid by
fees from the IEFA.
Response: DHS disagrees with commenters' assertions that an asylum
fee violates the INA, that there is no precedent in international law
for charging a fee for asylum applications, and that charging a fee is
discriminatory and against the values, morals, and Constitution of the
United States. DHS also disagrees that the United States is required to
provide asylum to those fleeing violence and seeking protection, as the
United States' non-refoulement obligations are met by the statutory
withholding of removal provisions at INA section 241(b)(3). Asylum is a
discretionary benefit available to those who meet the definition of a
refugee and who are not otherwise ineligible.
Although the United States is a party to the 1967 U.N. Protocol
Relating to the Status of Refugees (``1967 Refugee Protocol''), which
incorporates Articles 2 through 34 of the 1951 U.N. Convention Relating
to the Status of Refugees (``1951 Refugee Convention''), the Protocol
is not self-executing. See INS v. Stevic, 467 U.S. 407, 428 n.22
(1984). The asylum statute at INA section 208 and withholding of
removal statute at INA section 241(b)(3) constitute the U.S.
implementation of international treaty obligations related to asylum
seekers. The asylum provisions of the INA do not preclude the
imposition of a filing fee for asylum applications. INA section
208(d)(3), 8 U.S.C. 1158(d)(3) specifically authorizes the Attorney
General to impose a fee for the consideration of an asylum application
that is less than the estimated cost of adjudicating the application.
Furthermore, DHS believes that the asylum fee may arguably be
constrained in amount, but a fee is not prohibited by the 1951 Refugee
Convention, 1967 Refugee Protocol, United States constitution, or
domestic implementing law. Article 29(1) of the 1951 Refugee Convention
and the 1967 Refugee Protocol, as incorporated by reference, refers to
the imposition of fees on those seeking protection, and limits ``fiscal
charges'' to not higher than those charged to nationals of a given
country for similar services, but does not bar the imposition of such
fiscal charges. The $50 fee is reasonably aligned with the fees charged
to United States nationals for other immigration benefit requests.
Thus, a $50 fee for asylum applications is in line with international
and domestic law.
DHS also considered the asylum fees charged by other nations,
including Australia, Fiji, and Iran. A $50 fee is in line with the fees
charged by these other nations. DHS further believes that the $50 fee
would not require an applicant to spend an unreasonable amount of time
saving to pay the fee.
DHS declines to make changes in this final rule in response to
these comments.
Comment: With regard to the Form I-589 fee and the fee for an
initial Form I-765 filed by an asylum applicant, commenters stated:
Asylum seekers should not have to pay for an asylum
application or an associated work permit because they are not
authorized to work for months once in the United States and would have
no way of earning money to pay for the fees.
Asylum seekers in detention, who earn at most $1 a day
would have no way to pay the $50 fee.
Asylum seekers are not allowed to work more than 4 hours a
day and are thus unable to pay increased fees.
Asylum seekers who are poor or need to ``quickly flee
situations of peril or harm'' would be harmed by the asylum fee
proposal, and that such individuals would not be able to earn enough
money to pay asylum fees once in detention.
Asylum seekers are often minors with no means to support
themselves and therefore cannot afford an asylum fee.
Response: DHS acknowledges the commenters' concerns about asylum
seekers' ability to pay the fees for the asylum application and
associated EAD. DHS considered the effect of the fees on asylum seekers
and believes the fees would not impose an unreasonable burden on
applicants or prevent asylum seekers from seeking protection or EAD.
DHS also acknowledges that the Trafficking Victims Protection
Reauthorization Act (TVPRA) of 2008, provides a range of protections
for unaccompanied alien children. As such, DHS excluded unaccompanied
alien children in removal proceedings, a particularly vulnerable
population, from the imposition of the $50 asylum application fee.
The services that USCIS provides at no cost or below cost impacts
the final fees imposed on other fee-paying applicants. However, DHS
seeks to make the USCIS fee schedule more equitable for all applicants
and petitioners in this final rule. Therefore, DHS declines to make
changes in this final rule in response to these comments.
Comment: One commenter stated that asylum seekers provide services
to the United States, such as investments in their education and pay
taxes, that DHS

[[Page 46846]]

should consider before increasing asylum fees. Several commenters
stated that DHS should not raise asylum fees because asylum seekers are
important to the U.S. economy and workforce.
Response: DHS acknowledges that asylum seekers invest in their
educations and pay taxes like other immigrants do. When considering
whether to increase or establish new fees, including fees for asylum
seekers, USCIS examined its recent budget history, service levels, and
immigration trends, and also assessed anticipated costs, revenue, and
operational demands. USCIS has experienced a continuous, sizeable
increase in the affirmative asylum backlog and explored ways to
alleviate the pressure that the asylum workload places on USCIS. As
stated in the NPRM, DHS does not intend to recover the estimated full
cost of adjudicating asylum applications via the Form I-589 fee. 84 FR
62318. DHS will recover the additional costs of asylum adjudications
(via cost reallocation) by charging other fee-paying applicants and
petitioners more for other types of applications.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Many commenters addressed gender-based violence as a
reason for women and girls fleeing their countries of origin to seek
asylum in the United States. Another commenter stated that an asylum
fee will disproportionately impact women and minorities. Several
commenters discussed domestic violence survivors who rely on asylum
status and work authorization for protection. Some commenters said that
young people flee sexual and physical violence, and even torture. One
commenter said survivors often have no support systems in the U.S. and
therefore face homelessness and economic hardship, which are two of the
three most urgent and prevalent systemic challenges, confronting
immigrant women in the U.S. A couple of commenters said the asylum
seekers who flee domestic violence are often eligible for asylum as
well as other types of humanitarian immigration benefits, such as U
nonimmigrant status. In certain instances, it makes sense for survivors
to apply for different types of relief simultaneously as they may get
access to work authorization faster under one type of relief, which, in
turn, can help them avoid being financially dependent on their abuser.
Therefore, the commenter said an asylum fee may force survivors to
choose between different types of immigration relief to their
detriment. A commenter discussed rates of gender-based violence in El
Salvador, Honduras, Guatemala, Venezuela, and China and concluded that
sexual violence survivors seeking asylum in the U.S. are often doing so
as a last resort because there is little hope of finding protection and
safety from their abusers and assailants in their home countries.
Therefore, an asylum fee would make it virtually impossible for the
most vulnerable immigrant survivors of horrific domestic and sexual
abuse to live free from the violence of their abusers. A commenter
discussed the gender-based and gang violence that causes people to flee
their countries and claimed that the $50 asylum fee would serve to
enable smugglers and traffickers to pay the fees for asylum seekers to
extort their help in smuggling enterprises.
Response: DHS recognizes the challenges that gender-based violence
survivors face when fleeing from the violence of their abusers. This
final rule establishes the Form I-589 fee at only $50 because DHS
believes it is not an unreasonable amount. DHS disagrees that the fee
forces applicants to choose between applying for different forms of
relief or protection and enables smugglers and traffickers to extort
applicants. DHS does not believe that establishing an asylum
application fee of $50 unduly burdens or harms any applicants. DHS
carefully assessed the costs associated with the adjudication of asylum
applications and other types of immigration benefit requests and
concluded that the $50 fee for asylum applications is warranted. The
approximate cost of adjudicating an asylum application is $366. A $50
fee is well below the full cost of adjudicating the application.
Moreover, the asylum application fee is in line with international
treaty obligations under the 1951 Refugee Convention, as incorporated
by reference in the 1967 Refugee Protocol, and domestic implementing
law.
DHS declines to make changes in this final rule in response to
these comments.
Comment: One commenter stated that USCIS is promising the same
inadequate service it has been providing in the past few years and is
asking immigrant and refugee families to pay more to not get their
applications processed. The commenter stated that the proposal to
charge for asylum applications contradicts the 2005 Notice of
Adjustment of the Immigration Benefit Application Fee Schedule which
states, ``fees collected from persons filing immigration benefit
applications and petitions are deposited into the Immigration
Examinations Fee Account and are used to fund the full cost of
providing immigration benefits, including the full cost of providing
benefits such as asylum and refugee admission for which no fees are
assessed.''
Response: DHS acknowledges the concerns of the commenter related to
delays in the processing of applications. DHS has experienced a
continuous, sizeable increase in the affirmative asylum backlog over
the last several years. One of the ways in which DHS seeks to alleviate
the pressure of the increasing workload on the administration of
immigration benefits is to charge a $50 fee for asylum applications.
The fee will generate some revenue to help offset costs. As far as the
2005 notice is concerned, it described the asylum fee requirements, but
does not preclude the establishment of a fee.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Some commenters wrote that they question the statutory
authority to charge a fee to asylum applicants. Commenters stated that
United States is obligated to accept asylum seekers under international
and domestic law, and therefore should not refuse asylum seekers
because of an inability to pay the fee. One commenter wrote that
charging an asylum fee would have global consequences effecting the
standard of care and rule of law in humanitarian protections. Comments
stated that the United States has no precedent in international law to
charge for asylum, a fee for asylum applications is discriminatory, and
a fee for asylum is against the values of the United States.
Response: DHS recognizes the vulnerable situations of many
individuals who apply for asylum. DHS considered all of the points the
commenters raised when deciding to establish an asylum application fee.
INA section 208(d)(3), 1158(d)(3) specifically authorizes the Attorney
General to impose a fee for the consideration of an asylum application
that is less than the estimated cost of adjudicating the application.
As stated in the NPRM, DHS considered the authority provided in INA
section 208(d)(3), whether the fee would be paid in installments or
over time, and various fee amounts. DHS decided to establish a $50 fee
because it could be paid in one payment, would generate some revenue to
offset costs, and not be so high as to be unaffordable to even an
indigent alien. 84 FR 62320. Thus, the lack of resources that asylum
applicants possess and the burdens that they face contributed to DHS's
decision to establish a minimal $50 fee.

[[Page 46847]]

Furthermore, DHS disagrees that there is no precedent in
international law for charging an asylum application fee. DHS believes
that the asylum application fee may arguably be constrained in amount,
but a fee is not prohibited by the 1951 U.N. Convention Relating to the
Status of Refugees (``1951 Refugee Convention''), 1967 U.N. Protocol
Relating to the Status of Refugees (``1967 Refugee Protocol''), United
States constitution, or domestic implementing law. Article 29(1) of the
1951 Refugee Convention and the 1967 Refugee Protocol, as incorporated
by reference, refers to the imposition of fees on those seeking
protection, and limits ``fiscal charges'' to not higher than those
charged to nationals of a given country for similar services, but does
not bar the imposition of such fiscal charges. The $50 fee is
reasonably aligned with the fees charged to United States nationals for
other immigration benefit requests.
Comment: One commenter stated that if asylum seekers have to pay
for their own initial Employment Authorization Document (EAD), it is
likely that asylees will not apply for an EAD, which may be used
against them when USCIS adjudicates their asylum application.
Response: DHS infers that the commenter is suggesting that asylum
applicants will pursue unauthorized employment rather than pay the Form
I-765 fee to lawfully obtain an EAD, and that will result in USCIS
denying their application because they worked in the U.S. without
authorization. DHS expects that asylum applicants will not pursue such
an option and instead find a lawful way to pay the fee. As DHS noted in
the NPRM, initial applicants with pending claims of asylum are a large
workload volume for USCIS. In this final rule, DHS emphasizes that the
person receiving the benefit should pay the fee. While DHS appreciates
the need for asylum seekers to obtain lawful employment while their
applications are pending, Congress has made it clear that fees
primarily fund USCIS. After analyzing the costs of EADs for asylum
applicants and considering the other factors raised by the commenters,
DHS maintains its position that asylum applicants should pay the fee
for the initial and renewal EADs.
Comment: Some commenters wrote that the fee for asylum applications
would cause the U.S. to break its treaty obligations and contradicts
the intent of the 1980 Refugee Act. Some commenters agreed and more
specifically stated that the proposal would conflict with Congressional
intent to offer humanitarian assistance to those fleeing persecution
regardless of national origin, race, age, gender, or financial status.
A commenter said requiring asylum applicants to pay a fee violates the
principle of non-refoulement because it would likely result in the
expulsion of potential refugees merely on the basis of their financial
status, and since the imposition of the asylum application fees would
also be a barrier to apply for relief under the Convention Against
Torture, it also conflicts with U.S. treaty commitments. Multiple
commenters indicated an inability to pay the proposed fee would hinder
asylum seekers' ability to apply for asylum and gain needed protection,
thereby forcing asylum seekers to return to their country of origin to
face further persecution and even death. A commenter wrote that the
asylum fee proposal would increase the number of cases sent to
immigration courts because individuals would not have the funds to pay
for asylum applications. A few commenters stated that the unprecedented
fee would restrict life-saving access to the legal system.
A commenter provided a lengthy comment on the 1951 Refugee
Convention and the Refugee Act of 1980, stating that courts have
interpreted the federal regulations establishing the asylum process and
the INA as creating a constitutionally protected right to petition the
United States for asylum. This in turn triggers the safeguards of the
Fifth Amendment's Due Process Clause. The commenter said, because the
proposed fee would operate as complete bar to some asylum seekers'
ability to exercise their constitutionally protected right to petition
for asylum, it violates the guarantee of due process that accompanies
that right. The commenter stated that the rule should therefore be
rejected. The commenter also said DHS has also failed to consider
Article 32 of the 1951 Refugee Convention, which provides that refugees
shall be expelled only pursuant to a decision reached in accordance
with due process of law. The commenter said the United States cannot
recognize the right to apply for asylum as a component of due process
for the purposes of its own Constitution while contending that Article
32 of the 1951 Refugee Convention can be satisfied without such a
guarantee. Similarly, the commenter said DHS neglects Article 3's
guarantee of equal protection by facially discriminating among refugees
based on wealth and disparately affecting refugees based on national
origin or race. Another commenter spoke of several court cases that set
due process and equal protections precedent for asylees: (1) Mathews v.
Eldridge, 424 U.S. 319 (1976), (2) Griffin v. Illinois, 351 U.S. 12, 19
(1956), (3) Smith v. Bennett, 365 U.S. 708 (1961), and (4) Burns v.
State of Ohio, 360 U.S. 252, 258 (1959).
Some commenters pointed to the 1994 asylum reform initiative, which
sought to impose a $130 fee on asylum applicants but was withdrawn
following extraordinary opposition from the public. The argument that
won then is applicable now, the commenter wrote, and that charging for
an asylum application is contrary to United States international
obligations to permit refugees to seek asylum in the United States and
in violation of 8 U.S.C. 1158(a)(1).
Several commenters noted that the vast majority of signatories to
the 1951 Refugee Convention or 1967 Refugee Protocol do not charge an
asylum fee. Multiple commenters wrote that the U.S. would become just
the fourth nation to charge fees for asylum. Similarly, a commenter
said only three countries currently charge a fee for asylum because
such a policy is ``universally considered'' dangerous, discriminatory,
and wrongheaded. Similarly, several comments stated that the United
States has been a world leader in refugee protection for a long time
and wrote that if the U.S. begins charging fees for asylum, other
nations may choose to follow suit. The commenters described this
outcome as ``disastrous'' given the increasing need for refugee
resettlement worldwide. A commenter wrote that imposing a fee for
asylum seekers is not feasible and would break with international
precedent by denying such individuals access to ``a universal human
right.'' A commenter suggested there was a global consensus for
rejecting fees for refugees and asylum seekers and wrote that any
additional barriers to asylum adjudication could result in ``even more
deaths.'' Another commenter expounded on this point and questioned why
USCIS neglected to discuss why most nations do not charge fees for
asylum. The commenter also requested that USCIS ``investigate the
context of migration'' in the nations that do charge fees for asylum,
and said that, of these, only Australia was another ``Western'' nation.
One commenter stated that charging a fee for asylum would place the
U.S. ``in the same position as countries that abuse human rights'' and
would contravene the work the U.S. has done to become a leader in
refugee protection. A few commenters said that a fee for Form I-589
would make the United States the first, and only, country to charge
asylum applicants to

[[Page 46848]]

access protection with no possibility of fee waiver.
One commenter wrote that Australia's direct cash assistance to
asylum seekers has no equivalent in the United States. Another
commenter added that Australia, whose policies towards asylum seekers
have garnered international criticism, charges half of what DHS
proposes to charge for asylum applications. A commenter noted that the
United States will now have harsher asylum regulations than Iran, whose
policies allow asylum seekers to obtain a fee waiver.
Response: DHS disagrees that the establishment of an asylum
application fee is in violation of United States international treaty
obligations, the principle of non-refoulement, and domestic
implementing law. Although the United States is a party to the 1967
Refugee Protocol, which incorporates Articles 2 through 34 of the 1951
Refugee Convention, the Protocol is not self-executing. See, e.g.,
Stevic, at 428 n.22. The asylum statute at INA section 208 and
withholding of removal statute at INA section 241(b)(3) constitute the
U.S. implementation of international treaty obligations related to
asylum seekers. DHS believes that the asylum application fee may
arguably be constrained in amount but is not prohibited by the 1951
U.N. Convention Relating to the Status of Refugees (``1951 Refugee
Convention''), 1967 U.N. Protocol Relating to the Status of Refugees
(``1967 Refugee Protocol''), United States constitution, or domestic
implementing law. Article 29(1) of the 1951 Refugee Convention, and as
incorporated by reference in the 1967 Refugee Protocol, refers to the
imposition of fees on refugees, and limits ``fiscal charges'' to not
higher than those charged to nationals of a given country for similar
services. A $50 fee is reasonably aligned with the fees charged to U.S.
nationals for other immigration benefit requests. Moreover, INA section
208(d)(3), 8 U.S.C. 1158(d)(3), specifically authorizes DHS to impose a
fee for the consideration of an asylum application that is less than
the estimated cost of adjudicating the application. The approximate
cost of an asylum application is $366. Thus, a $50 fee for asylum
applications is in line with U.S. international treaty obligations and
domestic implementing law.
DHS disagrees with the commenters' assertions that a $50 fee would
operate as a complete bar on asylum seekers' ability to apply for
asylum and access to equal protection and due process of law. The
commenter refers to Article 32 of the 1951 Refugee Convention, which
provides that ``[t]he expulsion of such a refugee shall be only in
pursuance of a decision reached in accordance with due process of
law.'' The commenter also refers to Article 3 of the 1951 Refugee
Convention, which states that the provisions of the Convention shall
apply ``to refugees without discrimination as to race, religion, or
country of origin.'' DHS believes that the establishment of a minimal
fee of $50 to apply for asylum is not cost-prohibitive or overly
burdensome for asylum seekers. This final rule does not bar asylum
seekers from filing asylum applications. Also, charging a $50 fee for
an asylum application does not restrict an asylum seeker's access to a
decision reached in accordance with due process of law or discriminate
against refugees.
Moreover, DHS does not intend to recover the estimated full cost of
adjudicating the asylum application, as the fee amount is well below
the approximate full cost of $366 for adjudicating an asylum
application. DHS maintains that charging a fee for asylum applications
will help alleviate the pressure that the growing asylum workload
places on the administration of other immigration benefits and would
generate some revenue to help offset costs.
As discussed in the NPRM, DHS requested a report from the Law
Library of Congress on fees charged to asylum applicants by countries
that are a party to the 1951 Refugee Convention and/or its 1967 Refugee
Protocol. The Law Library of Congress surveyed the 147 signatory
countries to the 1951 Refugee Convention and/or the 1967 Refugee
Protocol, and of 147 countries, identified three countries that charge
a fee for initial applications for asylum or refugee protection. DHS
considered the asylum fees charged by other nations, including
Australia, Fiji, and Iran, and the $50 fee is in line with the fees
charged by these other nations. See 84 FR 62319.
DHS disagrees with commenters' assertions that charging a fee for
asylum would place the United States in the same position as countries
that abuse human rights and would contravene the work the United States
has done to become a leader in refugee protection. DHS acknowledges the
comments related to the policies of other nations, such as Australia
and Iran. Each nation has its own unique needs and different asylum
workloads. Given the growing scale of the affirmative asylum workload
in the United States, DHS explored ways to alleviate the pressure of
the affirmative asylum workload. DHS believes that establishing a
minimal fee of $50 for Form I-589 would help USCIS generate revenue and
offset costs, as well as mitigate fee increases for other immigration
benefit requests.
Comment: Some commenters said the asylum application fee, Migrant
Protection Protocols (MPP), CBP ``metering,'' and ``safe third country
agreements'' are counter to the international legal principle of non-
refoulement and indicate a clear effort on the part of the
administration to dismantle asylum in the United States.
Response: The commenter's concerns regarding MPP, CBP ``metering'',
and safe third country agreements are outside of the scope of this
rulemaking and DHS provides no response to those subjects in this final
rule. DHS believes that fees associated with access to asylum and work
authorization in the United States are not prohibited by the 1951 U.N.
Convention Relating to the Status of Refugees (``1951 Refugee
Convention''), 1967 U.N. Protocol Relating to the Status of Refugees
(``1967 Refugee Protocol''), United States constitution, or domestic
implementing law, and do not run counter to the principle of non-
refoulement. Article 29(1) of the 1951 Refugee Convention, and as
incorporated by reference in the 1967 Refugee Protocol, refers to the
imposition of fees on refugees seeking protection, and limits ``fiscal
charges'' to not higher than those charged to nationals of a given
country for similar services, but does not bar the imposition of such
fiscal charges. The $50 fee is reasonably aligned with the fees charged
to United States nationals for other immigration benefit requests. INA
Section 208(d)(3) authorizes the imposition of fees for asylum
applications. The asylum application fee is in line with domestic
implementing law and does not contravene international treaty
obligations.
Comment: Some commenters suggested that migration patterns in the
U.S. are unique and questioned whether the proposed rule was a racist
and xenophobic response to increasing levels of immigration from Latin
America. Some commenters discussed the characteristics of common
countries of origin for asylees. Two commenters wrote that the asylum
fee provision would impact thousands of Asian immigrants, and provided
data from FY 2017 that shows 27,759 Chinese immigrants and 4,057 Indian
immigrants applied for asylum, accounting for 12 percent and 2.9
percent of asylum seekers. Another commenter stated that approximately
1.5 million Africans have left Africa for the United States or Europe
since 2010,

[[Page 46849]]

according to the United Nations, and that Nigeria was the seventh most
represented country of origin for affirmative asylum cases filed in the
U.S. from 2016-2018 according to a DHS report. Another commenter
claimed that the asylum fee is indicative of xenophobia and racial
animus toward those from Mexico and Central America, as Mexico, Haiti,
El Salvador, Honduras, and Guatemala, respectively, had the highest
denial rates of the 10 nationalities with the most asylum decisions
between 2012 and 2017 (according to a 2018 report by CNN). The
commenter claimed that high denial rates for people from these
countries are partly due to the inaccessibility of legal assistance,
and higher fees will exacerbate the disparity. One commenter stated
that if the United States is not willing to address the root causes of
migration, it cannot also place a fee on asylum seekers fleeing the
violence and poverty of the countries that the U.S. refuses to aid.
Response: DHS disagrees that the asylum application fee is a racist
and xenophobic response to increasing levels of migration and
acknowledges the concerns of the commenters related to asylum seekers
fleeing violence and poverty. Asylum is a discretionary benefit
available to those who meet the definition of a refugee and are
otherwise eligible. DHS recognizes that many legitimate asylum seekers
face poverty and violence and considered the challenging circumstances
that many asylum seekers face when deciding to establish a minimal fee
of $50. The fee is well below the cost of adjudicating the asylum
application, which is consistent with INA section 208(d)(3). The
establishment of an asylum application fee is not animated by racism or
xenophobia, but rather, it is animated by a need to respond to the
increasing affirmative asylum workload and generate some revenue to
offset costs. USCIS must address these issues regardless of the myriad
factors that contribute to individuals claiming asylum in the United
States.
Comment: Some commenters discussed the impact of an asylum fee on
children. One commenter said the proposed rule disregards the best
interests of children, as it would charge unaccompanied children for
applying for asylum, writing that children should not have to shoulder
the burden of the large backlog of cases and slow processing of
immigration applications. One commenter said that 56 percent of the
applications from Central America were filed by unaccompanied children,
many of whom are fleeing the most high-volume countries of origin and
are in danger without the help of the U.S. Another commenter noted that
derivative applicants who do not file independent asylum applications
cannot assert their own, independent claims. Many asylum-seeking
families submit individual applications for all family members to
pursue every possible avenue of relief for all family members. The cost
per application will have a negative impact on these families. Multiple
commenters wrote that applying a fee to asylum applications could
result in deportations or compel vulnerable children and families to
return to countries they fled, risking continued persecution or death.
Several commenters pointed out that asylum seekers are in danger of
human trafficking and other crimes, and that the asylum fee bars them
from the protections that legal status affords. A few commenters stated
that asylum should only be based on evidence of perceived or actual
persecution and not whether asylum seekers have financial assets. A
commenter suggested the asylum fee proposal was ``cruel and inhumane''
and that asylum seekers should not have to prioritize asylum fees over
feeding their families.
Response: DHS acknowledges the commenters' concerns about the
potential effects of the asylum application fee on children and their
families. DHS recognizes that the Trafficking Victims Protection
Reauthorization Act (TVPRA) of 2008, provides a range of protections
for unaccompanied alien children. DHS excludes unaccompanied alien
children in removal proceedings, a particularly vulnerable population,
from the imposition of a $50 asylum application fee. 8 CFR
106.2(a)(20).
DHS acknowledges the commenters' concerns about asylum seekers'
ability to pay fees for multiple asylum applications depending on the
circumstances of principal and derivative applicants, including
children. DHS considered the effect of a fee on asylum seekers and
believes it would not impose an unreasonable burden on applicants or
prevent asylum seekers from seeking protection. The services that USCIS
provides at no or below cost impacts the fees imposed on other fee-
paying applicants. DHS seeks to make the USCIS fee schedule more
equitable for all applicants and petitioners. Nevertheless, DHS
considered the challenges that asylum seekers face and establishes an
asylum application fee that is well below the cost of adjudicating the
application.
Comment: Multiple commenters discussed the very limited resources
with which asylum seekers come to the U.S., and the resulting
inaccessibility of transportation, housing, healthcare, and other
necessities. Several commenters noted that asylum seekers are
ineligible for public assistance programs unless and until they are
granted asylum, and they rely on nonprofit and community resources for
housing, basic toiletries, school supplies, clothing, and public
transportation. The commenters claim that the asylum fee unjustly
burdens those who need resources and support the most. One commenter
cited a Human Rights Watch publication to claim that asylum seekers'
financial resources often fail to cover the bare necessities of life,
such as food, medicine, and shelter. Another commenter said that many
asylum seekers do not have financial resources because of ``the nature
of flight from perilous situations,'' and wrote that asylum seekers are
considered ``non-qualified'' immigrants for the purposes of
qualification for federal public assistance.
One commenter said that USCIS claims the $50 fee is large enough to
produce a revenue stream while small enough to remain affordable. The
commenter cited a Washington Post article that discusses the extreme
poverty of asylum seekers to emphasize the inability of these people to
pay any fee, no matter how small. Another commenter added that USCIS
should take into account $50 as a percentage of Gross National Income
(GNI) in asylees' home countries, citing World Bank and TRAC
Immigration data. A commenter wrote that the $50 fee for asylum would
not be a deterrent for some asylum seekers, but that the ``calculus is
not so simple'' for others who will not be able to afford the fee. The
commenter provided anecdotes about the personal backgrounds of asylum
seekers to provide context about the challenging financial situations
many asylum seekers or refugees face.
Response: DHS acknowledges the challenges that asylum seekers face,
including extreme poverty and limited access to resources. In
recognition of these circumstances, DHS establishes a minimal $50 fee
for Form I-589 for most applicants (unaccompanied alien children in
removal proceedings who file Form I-589 with USCIS are not required to
pay the fee). DHS considered various fee amounts and whether the fee
would be paid in installments over time. DHS has established a minimal
$50 fee that can be paid at one time, would not require an applicant to
save for an unreasonable amount of time, would generate revenue to
offset costs, and would not be so high as to be

[[Page 46850]]

unaffordable to an indigent applicant. See 84 FR 62319. DHS does not
intend to recover the full cost of adjudicating asylum applications via
the Form I-589 fee. DHS will recover the additional costs of asylum
adjudications by charging other fee-paying applicants and petitioners
more. DHS does not intend to discourage meritorious asylum claims or
unduly burden any applicant, group of applicants, or their families.
Comment: A commenter stated that this NPRM functions under the
``deterrence paradigm'' to prevent asylum seekers from coming to the
United States. They claimed that such deterrence policies do not work,
citing a report by the American Immigration Council which showed that
comprehensive knowledge of the dangers and possible futility of seeking
asylum had little impact on the intentions of Hondurans to seek asylum
in 2014.
Response: DHS does not intend to deter legitimate asylum seekers
from filing asylum applications via the $50 asylum application fee. The
goals behind establishing a $50 asylum application fee include
alleviating the pressure of the growing affirmative asylum workload on
the administration of other immigration benefit requests and generating
some revenue to offset costs. DHS believes the minimal fee of $50 is
not unreasonably burdensome and does not prevent legitimate asylum
seekers from submitting asylum applications.
Comment: A few commenters indicated that the $50 fee does not
mitigate the fee increase of other immigration benefit requests. One of
these commenters stated that since DHS will still rely on other benefit
requesters to cover the costs of the asylum process, as authorized by
Congress, the decision to charge an asylum fee is unacceptable.
A few commenters reasoned that, because the process costs around
$300 per applicant, a $50 fee would not meaningfully address the
deficit associated with asylum adjudication but would still be
prohibitively expensive for vulnerable people. One commenter added that
this is an arbitrary departure from the ``full cost'' standard required
for federal agencies, and that USCIS should charge applicants the full
cost of adjudicating the application.
One commenter cited the Asylum Division's quarterly statistics,
which indicate that DHS experienced a 40 percent decrease in
affirmative filings between 2017 and 2018. The commenter stated that
USCIS is unable to alleviate a growing backlog despite a drop in
affirmative filings. Two commenters cited a Migration Policy Institute
study which shows that many factors contributing to the backlog are the
result of U.S. policies.
Response: DHS carefully assessed the costs associated with the
adjudication of asylum applications and other types of immigration
benefit requests and concluded that the $50 fee for asylum applications
is warranted. A minimal fee would mitigate the fee increase of other
immigration benefit requests. DHS also relied on INA section 208(d)(3),
which provides that ``fees shall not exceed the Attorney General's
costs in adjudicating'' the asylum application. The approximate cost of
adjudicating an asylum application is $366, and thus, the fee is below
the full cost of adjudicating the application. The lower fee amount
represents DHS's efforts to balance the needs and interests of USCIS in
generating some revenue to offset costs against the socio-economic
challenges faced by some asylum seekers.
DHS acknowledges the comments related to the growing affirmative
asylum backlog, which played into DHS's decision to establish an asylum
application fee. USCIS has taken several actions to address the
affirmative asylum backlog, including: Identifying and employing
strategies to maximize efficiencies in case processing across
workloads; increasing adjudicative capacity by expanding its field
office workforce and continuing significant facilities expansion; and
reverting to reform scheduling, also known as Last In, First Out (LIFO)
scheduling, which involves scheduling the most recently filed
applications for interviews ahead of older filings. See USCIS
announcement on Last in, First Out scheduling (January 2018), available
at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog. LIFO scheduling has contributed to a decrease in the
growth of the asylum backlog. Even though USCIS has taken a range of
measures to address the backlog, the number of pending affirmative
asylum cases remains high.
Comment: One commenter cited a 2011 New York Immigrant
Representation Study to say that with decreased ability to support
themselves, asylum seekers would be far less likely to afford legal
counsel and therefore have less chance of prevailing on their asylum
claims.
Response: DHS believes that a minimal fee of $50 will not prevent
asylum seekers from securing legal counsel or affect their chance of
prevailing on their asylum claims. Asylum seekers may secure legal
counsel as needed to assist them with the asylum application process.
This final rule does not hinder or affect asylum seekers' access to
counsel. With or without legal counsel, asylum applicants are given the
opportunity to provide the information needed for an adjudicator to
make a decision about their eligibility for asylum. DHS declines to
make any changes in this final rule in response to the comment.
14. Form I-600A/I-600 Supplement 3, Request for Action on Approved Form
I-600A/I-600
Comment: A commenter supported changes in the handling of Hague
Adoption Convention Transition Cases, commenting that their personal
experience in the adoption process had been very difficult. The
commenter stated that having a prescribed system would be an
improvement.
Response: DHS appreciates the support for the changes in handling
intercounty adoption cases and agrees that the prescribed system is an
improvement upon previous practice.
15. Form I-601A, Application for Provisional Unlawful Presence Waiver
Comment: Multiple commenters opposed increasing the fee for Form I-
601A because it would harm family unity, discourage the use of consular
processing, and undermine the use of Form I-601A to improve efficiency.
Response: DHS recognizes that Form I-601A can aid family unity and
improve administrative efficiency through the use of consular
processing. However, DHS disagrees with the commenters' contention that
the fee increases enacted in this final rule for Form I-601A, from $630
to $960, undermines those goals. DHS adjusts the fee for Form I-601A to
reflect the estimated full cost of adjudication. If DHS did not adjust
fee to provide for USCIS to recover full cost, USCIS would be unable to
devote sufficient resources to adjudication to limit the growth of
pending caseload, thereby undermining the goals of family unity and
efficient processing.
DHS declines to make adjustments in this final rule in response to
these comments.
Comment: A commenter opposed the fee increase for Form I-601A
because such waivers have allowed thousands of immigrants to pursue
lawful permanent residence through consular processing. The commenter
said the proposed increase for this waiver application, in conjunction
with the costs of consular processing, would discourage immigrants from
seeking lawful status and place them at risk of removal and long-term
separation from their families.

[[Page 46851]]

Response: DHS recognizes that the provisional waiver process has
enabled family unity and the use of consular processing to gain lawful
permanent residence. However, DHS disagrees with the commenter's
assertion that the fee increase for Form I-601A will discourage
immigrants from seeking lawful status or result in long-term separation
for families. DHS believes that the fee increase of $330, from $630 to
$960, likely represents a small portion of the overall cost of
utilizing consular processing to pursue lawful permanent residence. DHS
also notes that noncitizens with an approved Form I-601A still trigger
the unlawful presence ground of inadmissibility found in INA section
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) upon departure.
DHS declines to make changes in this final rule in response to the
comment.
16. Form I-751, Petition To Remove Conditions on Residence
Comment: Multiple commenters wrote regarding increases in the fee
for Form I-751. Commenters wrote that the fee for Form I-751 would
cause individuals who are unable to afford the new fee failing to
petition to remove the conditions on their permanent residence, thereby
losing their conditional lawful permanent resident status.
Response: DHS recognizes the importance of Form I-751 to
individuals in conditional lawful permanent resident status. However,
DHS disagrees with the commenters' contention that the fee increase for
Form I-751, from $595 to $760, will render Form I-751 unaffordable to
these individuals. Conditional lawful permanent residents have nearly
two years between gaining that status and the 90-day period in which
they are required to file Form I-751, during which they are able to
work and save to afford the fee, or they may pay with a credit card.
DHS adjusts the fee for Form I-751 to reflect the estimated full cost
of adjudication and declines to make adjustments in this final rule in
response to these comments.
Comment: Many commenters indicated the Form I-751 fee increase and
elimination of the fee waiver would make it more difficult for low-
income families to file timely and could have severe consequences,
including the conditional resident's loss of lawful status and the risk
of being placed into removal proceedings. A commenter stated that the
unbundling and resulting increase in the fee for adjustment of status
and ancillary applications, and the increased fee for provisional
waivers could prevent low-income individuals from applying for
immigration benefits. The commenter asked that USCIS hold current fees
in place or increase the fees by a modest amount. One commenter said
the proposed change would affect many older applicants who maybe be on
fixed incomes, as well as people in single-income households.
Response: DHS acknowledges the changes in fee waiver eligibility
and the increase in the fee for Form I-751 implemented in this final
rule will render the process of removing conditions on lawful permanent
resident status more expensive for individuals. However, DHS disagrees
with the commenters' contention that the fee increase for Form I-751,
from $595 to $760, will render Form I-751 unaffordable to these
individuals. Conditional lawful permanent residents have nearly two
years between gaining that status and the 90-day period in which they
are required to file Form I-751, during which they are able to work and
save to afford the fee.
DHS declines to adjust this final rule in response to these
comments.
17. Form I-765, Application for Employment Authorization
Comment: A commenter wrote that Form I-765 fees are causing
students to consider leaving the United States following graduation,
removing talented workers from the U.S. economy and tax base. The
commenter stated that the proposal would further disincentivize foreign
students from studying in the United States. A commenter also wrote
that the proposed fee increases could impede immigrant student's career
advancement.
Response: DHS acknowledges the sizeable increase in the Form I-765
fee implemented in this final rule, adjusting the fee from $410 to
$550. DHS adjusts the fee for Form I-765 to reflect the estimated full
cost of adjudication. Although DHS recognizes that this fee increase
imposes an additional burden on nonimmigrant students seeking
employment authorization for Optional Practical Training, off-campus
employment under the sponsorship of a qualifying international
organization, or due to severe economic hardship, DHS is unaware of
data to support the commenter's contention that fee for Form I-765
serves to deter students from coming to the United States. DHS declines
to exempt students from the increased filing fee because USCIS must
determine the student's eligibility under the applicable regulations at
the time of application and the fee is necessary to recover the full
costs of the adjudication. DHS does not believe the fee is an
unreasonable burden for students who need employment-based training.
DHS believes that employment in the United States will continue to
appeal to individuals despite an increase of $140 in the cost of
applying for an EAD.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Multiple commenters opposed the change to charge asylum
applicants for their first Form I-765, Application for Employment
Authorization. The comments are summarized as follows:
Charging asylum seekers for the first work permit creates
a ``catch 22'' situation where people cannot work so cannot afford to
pay their asylum fees and may incentivize people to work illegally.
USCIS should not charge $50 for asylum applications and
further charge for an EAD while asylum cases are pending.
Requiring individuals who are not authorized to work to
pay such a substantial fee to acquire work authorization is cruel and
counterintuitive.
Asylum seekers have historically not been charged for
their initial EAD because their flight from their country of origin
leaves them in dire financial situations, and they often lack family
support in the United States to assist them.
Requiring asylum applicants to pay for an initial EAD
before they have authorization to work will worsen the already
precarious situation of a vulnerable population.
People subject to the fee have already spent substantial
time and money to get to the United States, have likely spent time in
immigration detention, and have not been authorized to work since
leaving their home country.
USCIS should continue to exempt asylum seekers from fees
associated with EADs because these individuals would not be able to
afford fees before they can legally work. It did not make sense to
charge asylum seekers for work permits before being granted protection.
The EAD fee for asylum seekers will act as an unjust
deterrent for asylum seekers.
To levy an asylum fee in conjunction with the EAD fee was
beyond contemplation and abominable and questioned how the government
could expect asylum-seekers to obtain funds to cover these costs.
The proposal was far from benign and employers could pay
this work permit fee.
This fee will force asylum applicants into seeking
unauthorized

[[Page 46852]]

work, putting them at a higher risk of exploitation, placing an undue
burden on investigative agencies, and ultimately putting those
applicants in danger of facing further consequences for attempting to
work without authorization.
A fee for an initial work permit is illogical, because the
U.S. benefits from self-sufficiency of asylum seekers and should
therefore want to expedite the employment authorization process.
It will burden local communities and service providers
that must provide social services to asylum applicants unable to work.
Local communities will suffer lost wages and tax revenue,
as well as the labor that would otherwise be provided by asylees.
State, local, community, and religious organizations will
attempt to cover the EAD fee for asylum seekers, straining their
resources and preventing them from serving more people.
Preventing asylum seekers from authorized work restricts
them from lawfully paying a fee for asylum.
Allowing asylum seekers to have work authorization
benefits local economies by asylum seekers paying taxes, filling skills
gaps, and building the workforce.
Asylees often bring a wide range of skills and experience
and are useful to many businesses, and that the proposal would deny
U.S. businesses of the opportunity to hire these workers.
Nearly 65 percent of the asylum seekers in the commenter's
program arrive in the U.S. with experience in STEM and healthcare
fields.
Employers would have difficulty finding labor substitutes
if asylum seekers were kept out of the workforce. USCIS should conduct
additional analysis on the impact of new fees for employment
authorization.
USCIS has not calculated the losses to tax revenue and the
broader economy associated with a reduced number of asylees in the U.S.
Asylees often come to the U.S. with in-demand skills,
including skills that would be useful in the healthcare and information
technology sectors, and the USCIS should estimate the costs borne to
employers who would use asylees.
Response: DHS acknowledges the concerns of the commenters related
to the requirement of a fee ($550) for initial filings of Form I-765
for applicants with pending asylum applications. Initial EAD applicants
with pending asylum applications account for a large volume,
approximately 13 percent, of the Form I-765 workload forecast and DHS
has decided to no longer provide this service for free. Charging
initial Form I-765 applicants with pending asylum applications allows
DHS to keep the fee for all fee-paying EAD applicants lower. Asylum
applicants will pay no more and no less than any other EAD applicant
(except for those who are eligible for a fee waiver) for the same
service.
DHS is acting in compliance with Section 208(d)(3) of the INA,
which provides that, ``[n]othing in this paragraph shall be construed
to require the Attorney General to charge fees for adjudication
services provided to asylum applicants, or to limit the authority of
the Attorney General to set adjudication and naturalization fees in
accordance with section 286(m).'' DHS believes that charging asylum
applicants for EADs does not impose an unreasonable burden on asylum
seekers. This final rule does not impose or seek to impose any
obligation on the part of employers, states, or community or religious
organizations to pay the Form I-765 fee. Also, this final rule does not
seek to burden local communities or service providers. DHS declines to
make changes in this final rule in response to these comments.
USCIS disagrees that charging asylum seekers for the first work
permit creates a conflict between contradictory conditions where aliens
cannot work to pay their asylum fees and may incentivize people to work
illegally. No asylum applicant may receive employment authorization
before 180 days have passed since the filing of his or her asylum
application. INA section 208(d)(2), 8 U.S. C. 1158(d)(2); 8 CFR
208.7(a)(1). This requirement has been in effect for over twenty years.
See, Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Section 604, Public Law 104-208; see also 62 FR 10337. Thus, an
asylum seeker is unlikely to come to the United States expecting to be
authorized to work immediately. Asylum seekers can, and do, rely on
their own means, as well as family or community support to economically
sustain themselves in the United States during the period of time that
they are not employment authorized.
Comment: Several commenters wrote that if asylum seekers are unable
to obtain employment authorization, they may be unable to pay for legal
counsel, which will make it more difficult for them to prevail on the
asylum applications. One commenter cited ``Accessing Justice: The
Availability & Adequacy of Counsel in Immigration Proceedings,'' a
study that showed that among non-detained individuals in immigration
court, those with counsel saw success in 74 percent of cases compared
with 13 percent of those unrepresented.
Response: DHS recognizes the economic challenges faced by asylum
seekers. However, DHS does not believe that charging asylum seekers for
a work authorization application will prevent them from obtaining legal
counsel. DHS does not believe that the EAD fee is unduly burdensome for
asylum seekers. Furthermore, DHS is acting within the scope of its
statutory authority to establish fees for adjudication services, in
accordance with INA sections 208(d)(3) and 286(m). DHS declines to make
changes in response to these comments.
Comment: A commenter stated that fee exemptions for EAD
applications by asylees should apply not only to initial applications,
but also renewals. The commenter said the original rationale was that
the initial EAD lasts for 2 years, and it was expected that asylees
would be granted lawful permanent residence within that two-year
period. Currently, however, the processing times for permanent
residence by asylees range up to 26 months, so the commenter said USCIS
should eliminate the fee for applications for renewal of employment
authorization filed by asylees.
Response: DHS acknowledges the concerns related to processing times
for EADs and adjustment of status applications. DHS does not believe
that the fee for renewal EAD filings will present an insurmountable
burden for asylees. Asylees are employment authorized incident to their
status. DHS will continue to exempt asylees from the initial Form I-765
fee. However, considering that they are employment authorized incident
to their status as an asylee and the EAD is matter of convenience and
not necessary for ongoing employment, asylees submitting I-765 renewal
applications will be required to pay the relevant fee, unless the
asylee filed for adjustment of status on or after July 30, 2007 and
before October 2, 2020 and paid the Form I-485 filing fee. DHS declines
to adjust this final rule in response to these comments.
Comment: One commenter suggested that initial asylum applicants
seeking employment authorization should be exempt from fees. Instead,
they propose that the Form I-765 fee should increase by $10 to offset
the cost.
Response: DHS appreciates the commenter's suggestion. DHS
considered continuing to exempt asylum applicants from paying for their
first Form I-765 filing. However, to more closely align with the
beneficiary-pays principle, DHS declines to require other fee-paying
applicants to subsidize

[[Page 46853]]

the cost of adjudicating the initial EAD applications of asylum
applicants. DHS declines to adopt the change suggested by this
commenter.
Comment: One commenter pointed out that work-eligible unaccompanied
children need access to EADs in order to access housing, food, and
clothing. Many minors reach adulthood before their Form I-589
application is adjudicated, losing access to foster care and other
financial support, leaving them as reliant on work as adult applicants.
Another commenter said that women and children will be particularly
affected by the EAD application fee and stated that a fee waiver is
necessary for these applications. Given that asylum seekers do not have
access to social welfare benefits, women are especially at risk of
hunger, abuse, homelessness, trafficking, and other coercive employment
practices. This commenter cited data from the Women's Refugee
Commission which emphasizes the benefits of employment for women who
have experienced trauma, as many asylees have.
Response: DHS acknowledges that asylum applicants need access to
employment authorization. DHS does not believe that this final rule
hinders or prevents asylum seekers from applying for employment
authorization. DHS believes that the EAD fee is not unduly burdensome
for asylum seekers and is acting within the scope of its statutory
authority to establish fees for adjudication services, in accordance
with INA sections 208(d)(3) and 286(m). Regarding unaccompanied alien
children (UAC), a UAC may be in the custody of the U.S. Department of
Health and Human Services, Office of Refugee Resettlement (ORR) or
residing with a sponsor. See 8 U.S.C. 1232(b) and (c). A UAC should not
need an EAD for an identity document, and to the extent that they do,
the sponsor for the UAC is generally responsible for his or her Form I-
765 fee. After turning 18, the same policy considerations for charging
them for the Form I-765 apply as for charging all adults.
Comment: A few commenters claimed that the processing time for EAD
applications is too long as is, and the new Form I-765 fee will present
an unsurmountable burden. Doubling the waiting period, along with the
$490 fee, presents an unjust financial hurdle for many asylum seekers
and will prevent them from attaining self-sufficiency through work.
Response: DHS acknowledges that the fee and waiting period for the
initial EAD may be an economic challenge to some asylum applicants, but
DHS disagrees that it is insurmountable or unduly burdensome. Many
asylum seekers spend thousands of dollars to make the journey to the
United States. It is not unduly burdensome to require that asylum
seekers plan and allocate their financial resources to pay a fee that
all other noncitizens must also pay. USCIS must incur the costs of
adjudicating Form I-765 submitted by an asylum seeker, and DHS does not
believe it should shift that cost to other fee payers. Charging a fee
for adjudication services is in line with INA section 208(d)(3), which
provides that ``[n]othing in this paragraph shall be construed to
require the Attorney General to charge fees for adjudication services
provided to asylum applicants, or to limit the authority of the
Attorney General to set adjudication and naturalization fees in
accordance with section 1356(m) of this title.'' DHS declines to make
changes in this final rule in response to these comments.
18. Form I-817, Application for Family Unity Benefits
Comment: A commenter said the fee decrease for Form I-817 is
puzzling in light of the current processing and adjudication of the
corresponding benefits because this form currently experiences
inordinate delays for processing.
Response: DHS acknowledges that processing times for many forms,
including Form I-817, have exceeded USCIS' processing time goals. DHS
is setting the fee for Form I-817 at the level sufficient to recover
the estimated full cost of adjudicating USCIS's anticipated workload
receipt volumes. DHS hopes to be able to devote sufficient resources to
Form I-817 adjudication to reduce pending caseload. DHS declines to
make any adjustments in this final rule in response to the comment.
19. Form I-821D, DACA Renewal Fee
Comment: Many commenters wrote that they opposed the Form I-821D
DACA renewal fees. Commenters stated that increasing DACA fees would
make it difficult for individuals to renew their work permits and
individuals could lose the ability to work legally in the United
States. Commenters highlighted that many DACA requestors are students
and may have difficulty paying the proposed fee in addition to the fee
for filing Form I-765. Commenters wrote that the proposed fee increase
would cause emotional and financial hardships for the families of DACA
recipients. Commenters stated that the imposition of a fee for DACA
would constitute an attempt to terminate the DACA program. Some
comments stated that the Supreme Court might decide the future of the
DACA program in the next few months; therefore, DACA recipients should
not pay more for an uncertain benefit.
Response: DHS will not impose the proposed Form I-821D,
Consideration of Deferred Action for Childhood Arrivals fee. It is not
included in this final rule. USCIS will not receive any revenue from
Form I-821D. Therefore, DHS removed the marginal costs directly
attributable to the DACA policy from its cost baseline that informs the
fee calculations for this final rule. The revenue DHS anticipated from
the Form I-821D DACA fee in its NPRM to recover costs associated with
overheads and cost reallocation will be collected through adjustments
to the other fees addressed in this final rule.\88\ DACA requestors
will continue to pay the fees in place before September 5, 2017, $410
for Form I-765, Application for Employment Authorization, as well as a
separate biometric services fee of $85.
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\88\ Although DHS requires DACA requestors to continue paying
the fee for Form I-765, it has removed all DACA workload and fee-
paying volume projections from USCIS' ABC model due to our decision
to not impose a fee for Form I-821D in this final rule, consistent
with Scenario D of the NPRM and the FY 2016/2017 fee rule. In its
rules to establish USCIS fees, DHS has generally not relied on
revenue from sources that are temporary in nature, including DACA.
See 81 FR 73312. Including temporary programs in the model would
allocate fixed costs and overhead to these programs, thereby
introducing financial risk because USCIS would not be able to
recover full cost if they are discontinued.
---------------------------------------------------------------------------

Comment: Multiple commenters suggested that the ability to receive
immigration protection and work authorization under DACA is crucial for
immigrant survivors of domestic and sexual violence. The commenters
cited a DOJ special report from December 2014 which indicates that
women between the ages of 18 and 24 experience the highest rate of rape
and sexual assault when compared to women of other age groups. The
commenters stated that because most DACA requestors are young
immigrants, the DACA eligible population is particularly vulnerable to
violence and abuse.
One commenter said that increasing the DACA renewal fee by 55
percent will jeopardize the employment of domestic abuse survivors. The
commenter stated that when a DACA holder is a victim of domestic
violence and becomes eligible for U nonimmigrant status, it is
important that they be able to renew their DACA and related work
permits while they wait for their U nonimmigrant status so that can
remain employed and not have to

[[Page 46854]]

financially rely on their abusers. The commenter stated that processing
time for petitions for U nonimmigrant status is between 52.3 and 53
months.
Response: DHS will not impose a fee for Form I-821D in this final
rule. However, DACA requestors will continue to be required to submit
Form I-765 for an EAD. To request a DACA renewal, DHS will continue to
require the $410 Form I-765 fee and the $85 biometric services fee that
were in effect before September 5, 2017. Furthermore, DHS reiterates
that Form I-918 has no fee and Form I-192 remains fee waivable for U
nonimmigrant status petitioners.
DHS declines to make changes in this final rule in response to
these comments.
20. Form I-829, Petition by Investor To Remove Conditions on Permanent
Resident Status
Comment: A commenter said the fee review for EB-5 forms, such as
Form I-829, failed to meet the objectives of ensuring USCIS has
adequate resources and to recover the full operating costs of
administering the national immigration benefits system. The commenter
said the modest 4 percent increase for Form I-829 fee is clearly too
low for adequate service and noted that despite the form having a
statutory requirement to be adjudicated within 90 days of filing, the
processing time for this form is currently between 22 and 45 months.
Response: DHS acknowledges that processing times for many forms,
including Form I-829, have exceeded the goals established by USCIS.
Furthermore, DHS acknowledges its obligation to adjudicate Form I-829
filings within 90 days of the filing date or interview, whichever is
later. See INA section 216(c)(3)(A)(ii), 8 U.S.C. 1186b(c)(3)(A)(ii).
In this final rule, DHS adjusts the fee for Form I-829 to $3,900 to
reflect the estimated full cost of adjudication. In estimating the full
cost of adjudication, USCIS considers the costs to adjudicate incoming
workloads and does not consider the resources necessary to adjudicate
existing pending caseloads. If USCIS considered the cost to adjudicate
existing, pending caseloads in its fee reviews, this would require
future immigration benefit requestors to subsidize the cost of
adjudicating previously received applications and petitions. DHS will
not require future applicants and petitioners to subsidize the
adjudication of existing, pending caseloads.
DHS declines to make changes in this final rule in response to the
comment.
21. Form I-881, Application for Suspension of Deportation or Special
Rule Cancellation of Removal (Pursuant to Section 203 of Public Law
105-100 (NACARA))
Comment: A commenter said that the NPRM provided no explanation for
the 532 percent fee increase for Form I-881. The commenter questioned
if adjudication had changed drastically to justify the fee increase.
Similarly, a couple commenters stated that USCIS' justifications did
not explain the fee increase and the proposal was contrary to the
purpose of the Nicaraguan Adjustment and Central American Relief Act
(NACARA).
Response: DHS disagrees with the commenters' contention that DHS
failed to explain or justify the fee increase for Form I-881. This
final rule adjusts the fee for Form I-881 from $285 for individuals or
$570 for families to a single fee of $1,810. As stated in the NPRM, DHS
has not adjusted the fee for Form I-881 since 2005. Thus, the fee has
not reflected USCIS' estimated full cost of adjudication since that
time. The large increase results from a need for the fee to recover its
proportionate share of USCIS' estimated full costs. In this final rule,
DHS adjusts the fee for Form I-881 to reflect the estimated full cost
of adjudication.
DHS declines to make change in this final rule in response to these
comments.
22. Forms I-924, Application for Regional Center Designation Under the
Immigrant Investor Program, and I-924A, Annual Certification of
Regional Center
Comment: A commenter said the filing fee for Form I-924 is
``already vastly out of proportion'' with the work required to process
the form. The commenter said the current fee of $17,795 may be
appropriate for entities seeking a new regional center designation or
an approval of an exemplar Form I-526 petition but is not reasonable
for smaller-scale changes like a change to a regional center's name,
ownership, or organizational structure. The commenter suggested there
should be a much lower fee to accompany such minor changes (which are
mandatory notifications to USCIS).
Another commenter said the fee adjustment for Forms I-924 and I-
924A fails to meet the agency's stated objectives of adjusting fees to
ensure USCIS has the necessary resources to provide adequate service to
applicants and can recover the full operating costs associated with
administering the immigration benefits system.
Response: DHS acknowledges that there may be a difference between
the cost of adjudicating a Form I-924 filing that requests a new
regional center designation and a filing that amends an existing
regional center. However, DHS does not have data to document the
difference in effort and cost between different types of Form I-924
filings. Thus, DHS estimated the full cost of adjudication for Form I-
924 based on an estimate of the average level of effort required to
adjudicate Form I-924. As noted in the rule initially establishing the
$17,795 for this form, the proposed fee ``was determined using USCIS's
standard fee-setting methodology, based on the number of hours required
to adjudicate Form I-924. These adjudications require economists and
adjudications officers to thoroughly review extensive business
documents, economic impact analyses, and other project-related
documents.'' \89\
---------------------------------------------------------------------------

\89\ USCIS, U.S. Citizenship and Immigration Services Fee
Schedule, 81 FR 73292, 73310 (Oct. 24, 2016).
---------------------------------------------------------------------------

DHS disagrees with the commenter's contention that the fee for Form
I-924 is too low to provide adequate service. In its fee review, USCIS
estimated that the fee for Form I-924 necessary to reflect the full,
estimated cost of adjudication would be less than the existing fee of
$17,795. In recognition of the resources available to I-924 filers and
to limit the fee increases for other form types, DHS decided to
maintain the fee for Form I-924 at the current level of $17,795 in this
final rule.
DHS declines to make changes in this final rule in response to
these comments.
23. Form I-929, Petition for Qualifying Family Member of a U-1
Nonimmigrant
Comment: Multiple commenters suggested the proposed $1,285 or 559
percent increase in the Form I-929 fee is excessive. The commenters
stated that the petition benefits crime victims' family members. A
commenter said the proposed fee would create a financial hardship for
immigrant families and the proposed rule ignores the fact that
survivors of domestic violence, sexual assault, and human trafficking
may desperately need timely processing of ancillary applications to
escape and overcome abuse. Another commenter said the proposed increase
would inhibit a vulnerable population from reuniting with spouses,
children, and in the case of minors, parents--directly in tension with
congressional intent. A commenter indicated this increase would make
applying extremely difficult for individuals who have

[[Page 46855]]

qualified family members. A commenter stated that it is important to
incentivize individuals to come forward and report when they have been
the victim of a crime and by keeping derivative applications for U-visa
applicants affordable, USCIS would ensure that agencies prioritize
public safety and family unity.
Response: DHS recognizes the importance of Form I-929 for promoting
family unity for U nonimmigrants and their family members. In
recognition of this importance, and consistent with its commitment to
maintain fee waiver availability of statutorily protected classes of
individuals, DHS proposed in the NPRM to continue to make the fee for
Form I-929 waivable for those who file Form I-912, Request for Fee
Waiver, and meet the fee waiver eligibility criteria. See 84 FR 62297.
In this final rule, DHS reaffirms that the fee for Form I-929 will
remain waivable for petitioning U nonimmigrants or lawful permanent
residents who file Form I-912, Request for Fee Waiver, and meet the fee
waiver eligibility criteria. DHS believes that maintaining access to
fee waivers for this vulnerable population mitigates any concerns that
the increase in the fee for Form I-929 would inhibit family unity.
In this final rule, DHS establishes the fee for Form I-929 as
$1,485 to reflect the estimated full cost of adjudication, which
includes the anticipated cost of fee waivers for Form I-929. DHS
recognizes that this represents a significant increase of $1,255 in the
fee. DHS notes that this increase is due, in part, to its commitment to
preserve access to fee waivers for certain vulnerable populations.
Because DHS anticipates that many filers will meet the fee waiver
criteria, USCIS must charge fee-paying applicants more to recover the
cost of processing fee-waived forms.
DHS declines to make changes in this final rule in response to
these comments.
24. Form N-400, Application for Naturalization
a. N-400 Fee Increase
Comment: Some commenters stated that USCIS does not have statutory
authority for raising the naturalization fees.
Response: DHS disagrees that USCIS does not have the statutory
authority to raise naturalization fees. The Form N-400 fee adjustment
is consistent with INA section 286(m), 8 U.S.C. 1356(m) (authorizing
DHS to charge fees for adjudication and naturalization services at a
level to ``ensure recovery of the full costs of providing all such
services, including the costs of similar services provided without
charge to asylum applicants and other immigrants'') \90\ and the CFO
Act, 31 U.S.C. 901-03 (requiring each agency's Chief Financial Officer
(CFO) to review, on a biennial basis, the fees imposed by the agency
for services it provides, and to recommend changes to the agency's
fees). Currently, there are no statutory provisions that require USCIS
to limit the naturalization application fee. DHS declines to make any
changes in this final rule in response to these comments.
---------------------------------------------------------------------------

\90\ The longstanding interpretation of DHS is that the
``including'' clause in section 286(m) does not constrain DHS's fee
authority under the statute. The ``including'' clause offers only a
non-exhaustive list of some of the costs that DHS may consider part
of the full costs of providing adjudication and naturalization
services. See 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23,
2019); 81 FR 26903, 26906 n.10 (May 4, 2016).
---------------------------------------------------------------------------

Comment: Many commenters stated that Congress has asked USCIS to
keep citizenship affordable, consistent with Congressional intent,
USCIS has historically followed this directive by using other fees to
subsidize naturalization fees, and that the proposed increase in
naturalization fees and removal of fee waivers violates Congressional
intent. A commenter provided quotations from 2010 and 2016 rulemakings
stating this policy objective and wrote that USCIS is arbitrarily
departing from the policy of reducing economic barriers to
naturalization. Commenters also cited the U.S. Code's citizenship
criteria and noted the absence of economic status. Commenters cited the
2019 DHS Appropriations Act and a recent Congressional Committee report
in making this argument and especially opposing the removal of fee
waivers for Form N-400. A commenter also cited Consolidated
Appropriations Acts from 2012, 2017, and 2019 as evincing Congressional
intention to reduce financial barriers to naturalization. The commenter
also quoted a Senate Committee report from 2015 and House Committee
report from 2020 to the same effect. Another commenter provided two
House of Representatives reports from 2018 and 2019, also writing that
the proposal contravenes Congressional intent.
Multiple commenters stated that the proposal ``undermin[es] the
special consideration that obtaining U.S. citizenship deserves.'' A
commenter wrote that USCIS irrationally dismissed Congressional
instructions to remove barriers to naturalization by relying on a
principle of ``self-sufficiency'' that USCIS asserts without support.
Another commenter stated that USCIS acknowledged its departure from
Congressional intent, and that its stated justification--a
``hypothetical concern'' that waivers could disrupt services--is
insufficient. A commenter stated that, while reducing the subsidy
provided by other immigration fees to naturalization may be
appropriate, it is cynical of USCIS to use naturalization fees to fund
ICE while making no commitment to reducing the months-or-years-long
wait times for citizenship interviews. A commenter provided a citation
to a USCIS statement reaffirming the special consideration given for
naturalization in making fee determinations.
A commenter stated that increasing naturalization fees would impact
families and that DHS must therefore perform a ``family policymaking
assessment,'' citing a 1998 Omnibus Appropriations Act. The commenter
wrote that N-400s are the forms most likely to impact immigrant
families.
A commenter wrote that the Northern District of California issued a
nationwide preliminary injunction, effective December 2, 2019, barring
USCIS from limiting access to naturalization for LPRs.
Two commenters cited the United Nations Declaration of Human
Rights' statement that the right to a nationality also includes the
right to ``change [one's] nationality,'' and therefore there should be
no arbitrary barriers that prevent naturalization.
One commenter cited a 2012 Migration Policy Institute study which
found that the United States lags behind other English-speaking
countries in naturalization rates, writing that these countries have
made active attempts to encourage naturalization. A few commenters
emphasized the role of naturalization in providing personal security
for immigrants, particularly those who are in danger of worker
exploitation without the full legal rights of citizenship. A commenter
requested that DHS more thoroughly analyze the costs of impeding access
to naturalization, which include long-term reduced economic and social
mobility for impacted populations.
Response: DHS recognizes the importance of naturalization to
individual beneficiaries and American society as a whole. However,
there are no specific provisions in the law (including the INA or the
United Nations Declaration of Human Rights) that require USCIS to set
fees to encourage individuals to obtain U.S. citizenship.
In response to comments, DHS provides that the fee for Form N-400
will remain fee waivable for VAWA self-

[[Page 46856]]

petitioners T and U nonimmigrants, SIJ petitioners and recipients who
have been placed in out-of-home care under the supervision of a
juvenile court or a state child welfare agency, and Special Immigrant
Afghan and Iraqi translators. DHS is aware of the United Nations'
Universal Declaration of Human Rights, and we agree with the
declaration's article 15 which provides that everyone has the right to
a nationality and no one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.\91\
Congress has authorized DHS to fund USCIS naturalization services from
fees, and does not fund USCIS through appropriations. See INA section
286(m), 8 U.S.C. 1356(m). Our fees are set using notice and comment
rulemaking as permitted by law and we provide a robust explanation of
the need for the fees and respond to public comments. Furthermore, the
fee for an application for naturalization will be $1,170 and fee
waivers will be available to VAWA, T, U, SIJ and Afghan/Iraqi SIV
applicants. See new 8 CFR 106.2(b)(3) and 106.3(a)(3). DHS recognizes
that some applicants would need to pay for the fees absent a fee waiver
but does not believe the increase will prevent people from filing for
naturalization. As previously indicated, USCIS monitors the proportion
of lawful permanent residents who naturalize over time and this
tracking has a high degree of accuracy and the most recent published
analysis shows that the proportion of LPRs naturalizing increased over
time from the 1970s to 2004, despite the increase in the naturalization
fee over that time period.
---------------------------------------------------------------------------

\91\ See Universal Declaration of Human Rights, Available at
https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
(last viewed March 16, 2020).
---------------------------------------------------------------------------

Comment: An individual commenter stated that the rule's
justification--that fee increases are needed to cover costs--does not
support the Form N-400, Application for Naturalization, fee increase.
The commenter wrote that USCIS' projected cost increases are only 13 or
20 percent and the proposal would raise fees by 60 percent.
Response: DHS acknowledges that the fee for Form N-400, Application
for Naturalization, is increasing by a greater percentage than the
total increase in USCIS costs and the average increase in fees
generally. DHS is raising the fee for Form N-400 from $640, plus the
$85 biometric services fee, if applicable, to a total fee including
biometric services fee of $1,160 if filed online or $1,170 if filed on
a paper application. The estimated average fee of $1,165 is $445, or
61.4 percent, above the previous combined cost of Form N-400 and the
biometric services fee.
The fee for this form is increasing more than for most other forms
because DHS has historically held the fee for Form N-400 below the
estimated cost to USCIS of adjudicating the form in recognition of the
social value of citizenship. However, in this final rule DHS is
emphasizing the beneficiary-pays principle for establishing user fees.
This means that the fee for Form N-400 will now represent the estimated
full cost to USCIS of adjudicating the form, plus a proportional share
of overhead costs and the costs of providing similar services at a
reduced or no charge to asylum applicants and other immigrants. In
other words, the fee for Form N-400 will now be determined in the same
manner as most other USCIS fees. Because DHS has held the fee for Form
N-400 below full cost in the past, adjusting to full cost requires an
increase in excess of the volume-weighted average increase of 20
percent. If DHS did not increase the fee for Form N-400 this amount,
other fees would need to increase further to generate the revenue
necessary to recover full cost, including the costs of Form N-400 not
covered by its fee. Thus, DHS believes the increase in the fee for Form
N-400 is fully justified.
Comment: Many commenters opposed the proposed fee increase by
comparing its 60 percent increase against the 4 percent inflation rate
over the same period. A commenter recommended that DHS raise the fee
for Form N-400 to $737.70, to account for inflation. A commenter wrote
that DHS should base naturalization fee increases on inflation only.
Another commenter stated that, adjusted for inflation since its
original price in 1985, the citizenship application should cost $85,
rather than the $725 it currently is or the proposed $1,170. Likewise,
another commenter cited a Stanford News article in commenting that the
inflated price of naturalization applications should only be $80.25.
Another commenter stated that, if inflated since 1994, the current
naturalization fee would be $95. Another commenter recommended that
naturalization fees be set at a percentage of the taxable income
reported by applicants over the past 2 years. A commenter stated that
the proposed naturalization fee increases should be phased in over a
number of years in order to reduce its burden on applicants.
Response: DHS appreciates the recommendations but neither adjusting
the fee for Form N-400 by inflation nor phasing the fee increase in
gradually over time would result in sufficient revenue to recover the
cost of adjudicating and processing Form N-400. DHS is increasing the
fee for Form N-400, Application for Naturalization, to recover the full
cost of adjudication. The revenue generated by the previous fee is
insufficient to recover the full cost of adjudication. DHS held the
current N-400 fee at less than the cost of adjudication when it last
adjusted the fee on December 23, 2016. See 81 FR 73307. In this final
rule, DHS emphasizes the beneficiary-pays principle of user fees so
that applicants will be primarily responsible for covering the cost of
adjudicating their applications. This requires an increase in the fee
for Form N-400 to $1,160 for online filing or $1,170 for paper filing.
Phasing in the increase over multiple years would require increasing
other fees by greater amounts to generate the revenue necessary to
cover the costs not recovered due to the lower Form N-400 fee.
Therefore, DHS declines to adopt the commenters' suggestions.
Comment: A commenter stated that the fees for Forms N-400 and N-600
should not be more than $500, and indicated that DHS should decrease
the fees so that more immigrants can afford to apply without relying on
a fee waiver. The commenter stated that the fee increase is a hardship
and referenced refugees, Special Immigrant Visas, and Afghan/Iraqi
interpreters should pay lower fees for humanitarian reasons.
Response: Charging a limited fee shifts the cost of processing and
adjudicating those benefits to other applicants and petitioners, which
is not equitable given the significant increase in Form N-400 filings
in recent years.\92\ The new fees for Forms N-600 and N-400 implement
the beneficiary-pays principle, which ensures that those individuals
who receive a benefit pay for the processing of the relevant
application, petition, or request. The N-400 fees of $1,160 if filed
online and $1,170 if filed on paper are set to recover the full cost of
adjudicating the Form N-400.\93\ In addition, DHS has provided in the
final rule that certain Afghan/Iraqi interpreters are eligible for N-
400 fee waivers, provided that they file Form I-912, Request for Fee
Waiver, and meet the fee waiver eligibility requirements. See 8 CFR
106.3.
---------------------------------------------------------------------------

\92\ Based on filing volume trends in recent years, USCIS
forecasts an increase of 82,827 Form N-400 applications, nearly a 10
percent increase from the FY 2016/2017 fee rule forecast. See NPRM
Table 4: Workload Volume Comparison.
\93\ For more information, see Appendix VII: Final Fees by
Immigration Benefit Request that accompanies this final rule.

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[[Page 46857]]

Comment: An individual commenter stated that the rule's
justification--that fee increases are needed to cover costs--does not
support the naturalization fee increase. The commenter wrote that
USCIS' projected cost increases are only 20 percent and the proposal
would raise fees by 60 percent.
Response: As stated in the NPRM, in crafting prior fee rules, DHS
reasoned that setting the Form N-400 fee at an amount less than its
estimated costs and shifting those costs to other fee payers was
appropriate in order to promote naturalization and immigrant
integration.\94\ DHS now believes that shifting costs to other
applicants in this manner is not equitable given the significant
increase in Form N-400 filings in recent years.\95\ Therefore, DHS
proposes to no longer limit the Form N-400 fee to a level below the
cost of adjudication, thereby mitigating the fee increase of other
immigration benefit requests and implementing the beneficiary-pays
principle. In this final rule, DHS institutes a $1,160 fee for Form N-
400 if filed online and a fee of $1,170 if filed on paper to recover
the full cost of adjudicating the Form N-400, as well as the cost of
similar service provided without charge to asylum applicants and other
immigrants.\96\
---------------------------------------------------------------------------

\94\ See, e.g., 75 FR 33461; 81 FR 26916.
\95\ Based on filing volume trends in recent years, USCIS
forecasts an increase of 82,827 Form N-400 applications, nearly a 10
percent increase from the FY 2016/2017 fee rule forecast. See Table
4: Workload Volume Comparison.
\96\ For more information, see Appendix VII: Final Fees by
Immigration Benefit Request of the supporting documentation that
accompanies this final rule.
---------------------------------------------------------------------------

DHS acknowledges that the fee for Form N-400, Application for
Naturalization, is increasing by a greater percentage than the total
increase in USCIS costs and the average increase in fees generally. DHS
is raising the fee for Form N-400, Application for Naturalization, from
$640, plus the $85 biometric services fee, if applicable, to a fee of
$1,160 if filed online or $1,170 if filed on a paper application. The
estimated average fee of $1,165 is $445, or 61.4 percent, above the
previous combined cost of Form N-400 and the biometric services fee.
Comment: Multiple commenters requested that USCIS ensure that
naturalization remain affordable. A commenter stated that the cost and
fees are a significant amount and discourages immigrants from applying
to become US citizens. The commenter cited to a 2015 Pew Research
Center asked Mexican green-card holders additional 13 percent of
Mexican and 19 percent of non-Mexican lawful immigrants identified
financial and administrative barriers, mainly the cost of
naturalization. Two commenters said that barriers to naturalization
disproportionately endanger Mexican workers, who are more likely to
experience worker exploitation and four times more likely to die in the
workplace than U.S.-born workers. Another commenter indicated that the
naturalization fee amounted to a month's gross income for an immigrant
and therefore would make it too difficult to afford citizenship
applications. Another commenter indicated that the naturalization fee
represents 50 to 100 percent of a foreign resident's monthly income. A
commenter questioned the naturalization application fee increased based
on 2 hours of work and asked about the hourly wage or a week's salary
for a typical American household. Another commenter opposed USCIS'
rationale, writing that while it may receive more naturalization
applications, naturalization adjudication levels remain flat despite
receipt increases. An individual commented that the proposed
naturalization fee increase would prevent residents from seeking
citizenship, citing data on financial and administrative barriers as
bars to naturalization. Another individual described the extent of the
fee's burden by comparing it against the average income of immigrants.
A commenter wrote that the proposal would act as a barrier to
immigrants with middle or lower class income and cited an analysis from
the Pew Research Center that found immigrants age 16 and over who
arrived in the U.S. in the past five years had median annual earnings
of $24,000, and those who arrived in the U.S. in the last ten years had
median annual earnings of $32,000. The commenter cited another analysis
from the same organization showing the U.S. foreign-born population was
44.4 million in 2017, and that 800,000 immigrants applied for
naturalization in 2018. One commenter provided citations to various
sources detailing the widespread lack of adequate savings among many
Americans, particularly black and Latino households, and that the
proposal would deprive families of the ability to work and pursue
opportunities. The commenter said the proposal would cause
``irreparable harm'' to families forced out of the legal immigration
system by unaffordable fees.
Response: DHS understands that the increase for the naturalization
application may affect those applying. As explained in the NPRM, in
crafting prior fee rules, DHS reasoned that setting the Form N-400 fee
at an amount less than its estimated cost and shifting those costs to
other fee payers was appropriate in order to promote naturalization and
immigrant integration.\97\ DHS now believes that shifting costs to
other applicants in this manner is not equitable given the significant
increase in Form N-400 filings in recent years.\98\ Therefore, DHS will
no longer limit the Form N-400 fee, thereby mitigating the fee increase
of other immigration benefit requests and implementing the beneficiary-
pays principle. In this final rule, DHS institutes a fee of $1,160 for
Form N-400 if filed online and a fee of $1,170 if filed on a paper form
to recover the full cost of adjudicating the Form N-400.\99\
---------------------------------------------------------------------------

\97\ See, e.g., 75 FR 33461; 81 FR 26916.
\98\ Based on filing volume trends in recent years, USCIS
forecasts an increase of 82,827 Form N-400 applications, nearly a 10
percent increase from the FY 2016/2017 fee rule forecast. See NPRM
Table 4: Workload Volume Comparison.
\99\ For more information, see Appendix VII: Final Fees by
Immigration Benefit Request of the supporting documentation that
accompanies this final rule.
---------------------------------------------------------------------------

Comment: A commenter faulted USCIS' economic model for the Form N-
400 fee increases. The commenter wrote that USCIS increased the
activity-based cost (ABC) model baseline with no explanation, failed to
account for fee waivers, increased the model output for Form N-400 by
18 percent, and failed to account for the cost-savings of online Form
N-400 filings. A commenter stated that the proposal belies its
``beneficiary-pays'' principle by charging naturalization applicants a
higher amount than the cost of processing of their own applications,
subsidizing other immigration-related expenditures. Likewise, another
commenter wrote that the proposal arbitrarily departs from past
practice of capping the ``model output'' increase to 5 percent, setting
the new level at 18-19 percent. A commenter wrote that the proposed
naturalization fee increase could actually be detrimental to USCIS
finances, as fewer immigrants would apply. The commenter faulted USCIS'
rationale as failing to discuss operational effectiveness despite
increasing fees beyond projected processing volume increases and
failing to justify a $745-per-hour processing cost for naturalization
applications--a cost exceeding that charged by private lawyers to
corporate clients. The commenter also cited Government Finance Officers
Association guidelines in writing that high-demand benefits are made
affordable by government entities.

[[Page 46858]]

Response: DHS understands the commenter's concerns regarding the
effect the fee increase on USCIS' financial well-being. DHS recognizes
that, if the increase in fee for Form N-400 discouraged significant
numbers of individuals from naturalizing, USCIS could realize less
revenue than with a lower fee for Form N-400. However, DHS believes
that most individuals will continue to value American citizenship, even
if it is more expensive to naturalize. In the wake of past increases in
the fee for Form N-400, USCIS has not experienced a decline in
application volumes. DHS does not anticipate that Form N-400
application volumes will decrease following the fee increase in this
final rule.
DHS notes that the critiques of its ABC model misunderstand what
model outputs represent, how they incorporate fee waivers, and how they
translate into final fees. DHS never limits the model output for any
form type. The model output represents the estimated fee-paying unit
cost for a given form. Meaning, the model output would recover the full
cost of adjudicating that form type, given the anticipated fee-paying
rate for that form. However, given that DHS determined to limit the fee
increase for certain form types, USCIS must reallocate costs that will
not be recovered by the lower, limited fees to other form types. Thus,
the fees for most form types are greater than the calculated model
outputs in order to generate revenue sufficient to cover the cost of
adjudicating form types with fees held below the model output and
ensure that USCIS achieve full cost recovery overall. DHS acknowledges
that, in past fee rules, DHS has limited the increase in the fee for
Form N-400 below the model output for that form. This choice forced
other fee-paying applicants to pay higher fees and bear the cost of
generating the revenue that was not recovered from the Form N-400 fees
because of the lower fee. In the NPRM, DHS noted that it no longer
believes this approach to setting the fee for Form N-400 is equitable,
given high volumes of Form N-400 filings, the significant amount of
costs other fee-paying applicants would have to bear if DHS limited the
increase in fee for Form N-400, and its emphasis on the beneficiary-
pays principle of user fees. Therefore, DHS disagrees that this change
in practice is arbitrary.
The commenter is mistaken in calculating the cost per hour to
process Form N-400 as $745. As with all USCIS fees, the fee for Form N-
400 reflects not only the direct costs of processing an individual Form
N-400 filing but also the cost of providing similar services at no or
reduced charge to asylum applicants and other immigrants. Furthermore,
each fee incorporates costs related to USCIS overheads and general
administrative costs. In this final rule, DHS establishes a fee of
$1,160 for Form N-400 if filed online and a fee of $1,170 if filed on
paper to reflect the full cost to USCIS of processing these filings.
DHS believes it has fully justified these fees.
Comment: Another commenter faulted DHS' abandonment of the
``ability-to-pay'' principle, asking for more transparency as to the
changes in N-400 trends and how other applicants subsidized
naturalization. The commenter also stated that DHS' assumption that
applicants will continue to submit applications regardless of their
eligibility for a fee waiver is unfounded. The commenter provided
another citation to the proposal where DHS appears to recognize that
removing fee waivers would impact application decisions, and then
states that it cannot predict the proposal's impact on applications. A
different commenter stated that, in a footnote, USCIS indicates that
the true intent of the proposal is to impose a ``self-sufficiency''
principle and impose barriers to naturalization contrary to
Congressional intent. A commenter also stated that when President
Johnson signed the Immigration and Naturalization Act of 1965 into law,
it ushered in our modern era with a more equitable system.
Response: The quote of President Johnson cited by the commenter
referred to the elimination of the previous quota system that had
severely restricted the number of people from outside Western Europe
who were allowed to immigrate to the United States. The 1965 Act did
not discuss the fees for naturalization. The 1965 Act did not provide
for specific fee exemptions or waivers. DHS considered the self-
sufficiency principles as established by Congress along with other
provision of the law and the added cost to other fee-paying applicants
and petitioners. DHS believes that it is neither equitable nor in
accordance with the principle of self-sufficiency that Congress has
frequently emphasized, to continue to force certain other applicants to
subsidize fee-waived and reduced-fee applications for naturalization
applicants who are unable to pay the full cost fee.
Comment: A commenter contrasted the proposed rule against a speech
from Vice President Pence where he stated, ``America has the most
generous system of legal immigration in the history of the world,''
writing that the proposal would be inconsistent with this statement.
The commenter also provided statistics of the number of immigrants who
naturalize in the United States against higher figures from Australia,
Canada, and the United Kingdom.
Response: DHS does not agree that this final rule is inconsistent
with the Vice-President's statement.\100\ The statement did not include
any references to fee or fee waivers or exemptions, instead the
statement references the ability of different people with different
backgrounds to be able to naturalize. The rate of naturalization has
increased over the years and DHS does not believe that this final rule
would have a significant effect on the number of people filing Form N-
400.
---------------------------------------------------------------------------

\100\ Remarks by Vice President Pence at a Naturalization
Ceremony, July 4, 2019, available at https://www.whitehouse.gov/briefings-statements/remarks-vice-president-pence-naturalization-ceremony (last visited March 9, 2020).
---------------------------------------------------------------------------

Comment: A commenter claimed that USCIS has failed to provide the
evidence necessary for the agency to save money by no longer providing
printed N-400 forms for people with low technology literacy, requiring
them to access the forms at public libraries and community
organizations. The commenter wrote that USCIS has failed to account for
the impact those savings had on the agency's budget, as well as on the
ability of LPRs to submit their naturalization applications.
Response: As the commenter points out, DHS is encouraging
applicants to file online when they can, moving toward modernizing all
of our services, minimizing the use of paper, and increasing agency
efficiency through technology. It requires 10 days to receive forms
after ordering them from the phone and mail service, as opposed to
immediate access via the website. All USCIS forms are easily accessible
by visiting the USCIS website, and applicants may either file
electronically or download the form and submit it in paper format
according to the form instructions. If an individual visits a USCIS
office, we will direct them to digital tools and USCIS Contact Center
phone number. Understanding some individuals may not have access to the
digital tools, our staff will make them aware of resources, such as
libraries that offer free computer online services, including many that
offer a Citizenship Corner. USCIS works closely with accredited
community-based organizations and local libraries to provide access to
information and computers. Public libraries can be a resource for
immigration information, and many have a Citizenship Corner where the
public can visit and learn more about the citizenship process

[[Page 46859]]

libraries may also have computers that the public may use to access
forms, complete, and print them. USCIS has enjoyed a costs savings from
reducing the storage and mailing of paper forms, as well as destroying
unused stocks of paper forms when versions changed, but not enough of a
savings to have an appreciable effect on the new fees in this final
rule.
Comment: A commenter recommended several alternatives to the
proposed fee increases, including bundling fees for Forms I-90 and N-
400, offering premium processing at a fee, offering tiered pricing for
Form N-400, and offering fee reductions based on applicant's income
taxes. A commenter suggested that USCIS adopt a sliding scale
application fee for naturalization based on income. Another commenter
suggested a payment installment plan for immigrants who cannot pay the
full amount at once, as well as micro-loans. The commenter also
suggested the creation of a citizenship foundation similar to that
which funds the National Park Service.
Response: As previously indicated, DHS recognizes that filing fees
are a burden for some people of limited financial means. Creating and
maintaining a new system of tiered pricing, family caps, installments
plans, or micro-loans would be administratively complex and would
require even higher costs than in the NPRM. Such payment systems would
require staff dedicated to payment verification and necessitate
significant information system changes to accommodate multiple fee
scenarios for every form. The costs and administrative burden
associated with implementing such a system would require additional
overall fee revenue. However, as previously stated, the cost of fee
waivers and reduced fees are borne by all other fee payers because they
must be transferred to those who pay a full fee to ensure full cost
recovery. DHS believes that it is more equitable to align with the
beneficiary-pays principle. Thus, USCIS takes a relatively careful
position with respect to transferring costs from one applicant to
another through the expansion of fee waiver eligibility and discounting
fees. To set fees at various levels based on income, as suggested by
the commenter, would require deviation from the underlying fee-setting
methodology and require some of the costs for those applications to be
reassigned to other benefit requests. Therefore, DHS did not
incorporate a reduced fee, sliding scale, or family cap in this final
rule or the other suggestions provided by commenters.
Comment: One commenter took issue with the use of terms like
``moral turpitude'' and ``good moral character'' since these terms lack
a legal definition. The commenter said the proposed fee increases would
prevent many LPRs from pursuing citizenship, and that the lack of a
legal definition for certain terms would increase the amount of time
individuals are at risk of losing legal status.
Response: DHS did not propose a change to the eligibility
provisions for benefit requests such as adjustment of status to lawful
permanent resident or naturalization, for which a ``crime involving
moral turpitude'' and ``good moral character'' may be relevant
statutory terms. Therefore, we are not including changes to those terms
in the final rule.
b. Effect on Naturalization Applicants
Comment: Many comments offered various comments on the effects of
the proposed naturalization fee increase on naturalization applicants.
Commenters wrote that the new fees:
Would prevent residents from seeking citizenship, citing
data on financial and administrative barriers as bars to
naturalization.
Will not just delay, but ultimately prevent low income and
poor immigrants from naturalizing, and the U.S. is engaging in implicit
racism, citing the U.S.'s history of denying citizenship based on race.
The proposal would punish immigrants who did their utmost
to obey immigration laws.
The proposal would harm the Latino community--more than
half of the immigrants currently eligible to naturalize are Latino
while 71 percent of the population that face the greatest barriers to
naturalization are Latino.
Naturalization fees are a significant bar to Mexican
immigrants becoming U.S. citizens with 13 percent of Mexican and 19
percent of non-Mexican lawful immigrants identifying financial and
administrative barriers, mainly the cost of naturalization, as a reason
preventing their naturalization.
2.1 million immigrants are eligible for naturalization in
the state of California, and the new fee would severely affect 1
million Californians including 768,024 that live in Los Angeles County.
The proposal would increase immigrants' dependence on
predatory financing in order to support their naturalization
applications.
Would harm eligible parents of U.S. children who will
either have to pay a higher fee or forgo naturalization, subjecting
themselves and their children to the stresses of uncertain status.
The mental health problems and traumas faced by children
of undocumented parents would be exacerbated.
The increase is harmful--the United States Census Bureau
reported that between 1970 and 2010 the percentage of foreign-born
populations who naturalized decreased from 64 percent to 44 percent, A
20 percent decrease in 40 years is a drastic drop and one reason for
this is due to the increased in prices for naturalization applications.
Naturalization provides personal security for immigrants,
particularly those who are in danger of worker exploitation without the
full legal rights of citizenship.
Citizenship helps members of immigrant communities to feel
secure enough to report crime, which improves neighborhood safety.
Limiting working class immigration would be contrary to
the interests of the U.S. society and economy.
Naturalization boosts American democracy, economy, and
diversity.
Everyone benefits from residents naturalizing, citing a
study showing that naturalization increases net taxable income and GDP.
Naturalization increases individual earnings. A San
Francisco Pathways to Citizenship Initiative study program's
participants used financial assistance to afford the naturalization
application fee. The funds provided by the city to support such fees
``would be depleted almost immediately'' if the proposed rule goes into
effect.
Citizenship promotes social benefits, such as English
proficiency, quality of employment, and buy-in to U.S. democratic
principles.
Naturalization improves immigrant language skills.
If half of LPRs naturalized, GDP would increase between
$37 and $52 billion annually.
LPRs must navigate many hurdles to naturalize, and that at
a certain point, the United States misses out on the benefits of high
naturalization rates because of these hurdles. Naturalization boosts
American democracy, economy, and diversity, citing a Catholic
Immigration Network study.
Naturalization increases civic engagement, naming many
naturalized citizens who have gone on to hold elected office.
A 2015 Urban Institute study shows that naturalization
increased individual earnings by 8.9 percent, employment rates by 2.2
percent, and

[[Page 46860]]

homeownership by 6.3 percent, with the earnings and employment
improvements resulting in $5.7 billion of additional income in the 21
cities studied and increases home ownership and incomes.
If eligible immigrants naturalized, federal, state, and
city revenues would increase by $20 billion while New York City
government benefit expenditures would decrease by $34 million.
A 2015 Urban Institute study demonstrates that if just
half of eligible immigrants in the United States naturalize, it would
increase GDP by $37-52 billion, annually, and if all eligible
immigrants in 21 U.S. cities naturalized, home ownership would increase
by more than 45,000 people and an additional $2 billion in tax revenue
would be recognized.
A 2002 Bratsberg et al. study showed that naturalization
led to wage increases as observed in the same individuals over time.
A 2012 Migration Policy Institute study shows
naturalization contributes to increased economic growth through
consumer spending.
Several show the current application fee discourages
naturalization, and that naturalization positively impacts wages, the
economy, and immigrants' integration into society.
A 2019 Migration Policy Institute study shows that
naturalized citizens over the age of 25 have similar levels of post-
secondary education to U.S.-born citizens and that, through
naturalization, these immigrants can better integrate into and
contribute to their local communities. The naturalization fee increases
have caused the number of immigrants eligible to naturalize but not
doing so to 9 million, and the proposal would diminish U.S.-specific
human capital.
A 2019 Center for Migration Studies paper shows the impact
of naturalization on college degree attainment, English-language
skills, employment in skilled occupations, healthcare, poverty level,
and home ownership.
Response: DHS appreciates and acknowledges all of the positive
aspects of naturalization. DHS does not intend for the new fees to
prevent individuals from applying for naturalization, that they require
applicants to depend on predatory financing to pay naturalization
application fees, and we do not believe the rule will have those
effects. Therefore, DHS declines to make any changes in this final rule
on these bases.
USCIS monitors the proportion of lawful permanent residents who
naturalize over time. This analysis has a high degree of accuracy
because it uses administrative data rather than survey data (as the
Census does) to assess changes in naturalization patterns. The most
recent published analysis shows that the proportion of LPRs
naturalizing increased over time from the 1970s to 2004, despite the
increase in the naturalization fee over that time period.\101\ DHS does
not have any data that indicates that this trend would change.
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\101\ See USCIS, Trends in Naturalization Rates: FY 2014 Update
(November 2016), available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports/Trends-in-Naturalization-Rates-FY14-Update.pdf.
---------------------------------------------------------------------------

Comment: A commenter stated that all asylees rely on naturalization
for the right to petition for certain family members. The commenter
stated that with the additional financial burden of naturalization
fees, family reunification for asylees will be delayed or prevented.
Response: DHS recognizes that asylees may petition for family
members after completing the naturalization process. DHS wants every
person eligible to apply for naturalization to submit an application.
Likewise, we encourage anyone eligible to petition for the immigration
of qualifying family members. DHS does not believe that asylees would
be unduly burdened by naturalization fees and does not agree that
naturalization fees would prevent or delay family reunification for
asylees. DHS is also unaware of any specific statutory provision
requiring DHS to provide naturalization applications to asylees with
limited fees. DHS declines to make any changes in this final rule in
response to this comment.
Comment: Another commenter stated that the NPRM would further
disadvantage people with disabilities and chronic mental health
conditions, contrary to Congressional intent to make immigration
benefits available to eligible noncitizens regardless of disability.
The commenter wrote that, in addition to the increased naturalization
fees, people with disabilities and chronic mental health conditions
often must pay to appeal erroneous findings by USCIS officers who
conduct naturalization interviews with no medical training and make
assumptions regarding their clients' disabilities.
Response: DHS is adjusting its fees in this final rule to recover
the estimated full cost of providing adjudication and naturalization
services. As the commenter suggests, DHS is applying the fees in this
final rule to all applicants regardless of their having a disability or
not. The comment seems to equate physical disability and mental health
conditions with poor financial condition, but DHS does not know that to
generally be the case, and DHS is not basing fee policies on that
assumption but rather emphasizing the beneficiary-pays principle.
Further, USCIS monitors the proportion of lawful permanent residents
who naturalize over time. This analysis has a high degree of accuracy
because it uses administrative data rather than survey data (as Census
does) to assess changes in naturalization patterns. The most recent
published analysis shows that the proportion of LPRs naturalizing
increased over time from the 1970s to 2004, despite the increase in the
naturalization fee over that time period.\102\ DHS declines to make
changes in this final rule in response to the comment.
---------------------------------------------------------------------------

\102\ See USCIS Trends in Naturalization Rates: FY 2014
(November 2016) Update, available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports/Trends-in-Naturalization-Rates-FY14-Update.pdf.
---------------------------------------------------------------------------

c. N-400 Reduced Fee
Comment: Commenters stated that the fee waiver and partial fee
waiver would be eliminated for families with income between 150 percent
and 200 percent of the poverty level and almost eliminated for everyone
else. A commenter indicating the eliminating the reduced fee for people
with incomes from 150 to 200 percent of the FPG would make it too
difficult for immigrants to afford citizenship. An individual commenter
mentioned the fee waiver and partial fee waiver system strengthened by
the Obama administration, and stated that this rule would eliminate
these options for families with income between 150 percent and 200
percent of the poverty level and almost eliminate waivers for everyone
else.
Response: DHS acknowledges that eliminating the reduced fee for the
naturalization application will limit the number of people who receive
a reduced fee and slightly increase the number of people who are
required to pay the full fee. However, few applicants have requested
the reduced fee since its creation and significantly fewer applicants
than predicted took advantage of the reduced fee option. In other
words, the reduced fee option was not widely received, and DHS does not
believe its elimination will significantly hinder the number of people
who cannot pay the full fee established in this final rule.
The estimated total number of approved reduced fee requests in
fiscal year 2017 was 3,624 (0.83 percent). The total number of denied
reduced fee requests was 733. In total, DHS estimates the annual number
of requests for a reduced Form N-400 fee that

[[Page 46861]]

would be filed absent the proposed change is 4,357 (0.6 percent). For
comparison, the total number of Form N-400 filed in fiscal year 2017
was 581,998. See Table 38 in the RIA.
DHS proposes to eliminate the reduced fee in order to recover the
estimated full cost for naturalization services. In addition,
eliminating the Form I-942 will reduce the administrative burden on the
agency to process the Form I-942. USCIS would recover the cost of
adjudicating Form N-400 and not transfer Form N-400 costs to other form
fees.
d. Case Processing
Comment: A commenter wrote that the proposed naturalization fee
increase is not supported by any improvement in quality of services. It
added that, in 1998, INS announced a fee increase but claimed that it
would only follow a reduction in the backlog and acceleration of
processing speeds. The commenter contrasted this statement against the
current backlog of 700,000, cited from a 2019 Colorado State Advisory
Committee paper. The commenter also provided a lengthy quotation from a
2017 OIG report stating that USCIS has introduced operational
inefficiencies as processing times doubled and naturalization
interviews were cancelled. The commenter mentioned the suspension of
InfoPass services specifically as an example of diminished customer
service.
A commenter wrote that the proposal would compound policies made at
the local level which are already increasing barriers to
naturalization, such as the USCIS field office in Seattle's 2019
decision to shift caseloads to offices more than 142 or 174 miles away.
A commenter provided figures of the LPRs eligible to naturalize and
the backlogs in Denver and that the fee increase will further deter
eligible adults from naturalizing.
A commenter claimed that without increasing fees, with automation
and management reforms, the Form N-400 processing period in their
region has decreased to an average of less than 12 months, undermining
the necessity of a fee increase.
Response: DHS does not believe the rule changes will delay
processing or deny access. USCIS will adapt and change its process as
necessary to avoid or minimize any delays in case processing.
Nevertheless, by enabling USCIS to hire more employees to process
requests, including requests on hand, USCIS also believes the new fees
will help reduce backlogs.
25. Other Naturalization and Citizenship Forms
Comment: A commenter opposed the Form N-600 fee increase, writing
that USCIS would receive more revenue and avoid administrative
difficulties if the fee were reasonable. A commenter opposed the fee
increase for Forms N-600 and N-535 [sic], stating that no explanation
has been provided to explain why those increases are necessary.
Response: DHS disagrees with this comment. DHS calculated the
estimated cost to USCIS of adjudicating Form N-600. This change aligns
more closely with the beneficiary-pays principle to ensure that
individuals who receive an immigration benefit or service from USCIS
bear the cost of providing that benefit or service. Therefore, DHS
believes the fee as established is reasonable based on USCIS costs.
Comment: A commenter stated that the Form N-600 fee is especially
cruel as it has been inflated for years, ``not getting their
certificate of citizenship limits their college options, and most
families have more than one child.''
Response: DHS disagrees that the fees for Forms N-600 and N-600K
were inflated for years. As noted in the FY 2016/2017 fee rule, the
current fees for Forms N-600 and N-600K assumed that approximately one
third of applicants would receive a fee waiver. See 81 FR 73928. To
recover full cost, DHS set the fees for Forms N-600 and N-600K at a
level for fee-paying applicants to cover the cost of fee-waived work.
Id.
In this fee rule, the fees for Forms N-600 and N-600K are
decreasing mainly because of the proposed limitation of fee waivers,
which will enable greater cost recovery for several form types and
limit the need for cost reallocation to fee-paying applicants. The
proposed fees provide for the full recovery of costs associated with
adjudicating the forms. In addition, DHS is providing fee waivers for
the humanitarian categories for Forms N-400, N-600, and N-600K.
In addition, not obtaining a certificate of citizenship does not
limit a person's college options because there are other means to
establish citizenship. Upon meeting the requirements of INA 320,
children of U.S. citizens automatically acquire U.S. citizenship.
Applying for a certificate of citizenship is only one means to acquire
proof of such citizenship. Applicants who acquired U.S. citizenship may
also obtain a passport to establish proof of citizenship. Further, some
colleges permit nonimmigrants and lawful permanent residents to attend
college.
Comment: Commenters opposed the proposed fees for the following
naturalization and related forms:
N-300, Application to File Declaration of Intention;
N-336, Request for a Hearing on a Decision in
Naturalization Proceedings (Under Section 336 of the INA); and
N-470, Application to Preserve Residence for
Naturalization Purposes.
These commenters stated that immigrants who need to file these
special forms would face additional barriers to naturalization.
Commenters indicated that some immigrants use Form N-300 in order
to work in certain states. The proposed rule would increase this fee by
389 percent, to $1,320 or five weeks of minimum wage take-home pay.
Some immigrants use Form N-336 to file an appeal if their
naturalization application is denied by USCIS. The proposed rule would
increase this fee by 151 percent, to $1,755 or seven weeks of minimum
wage take-home pay. The commenter stated that USCIS provided no
justification for its Form N-336 fee increase and that the increase
would especially affect the most vulnerable populations by charging a
total of $2,925 to navigate a faulty system.
Some immigrants use Form N-470 if they plan to work abroad for a
U.S. company, university, or government agency before applying for U.S.
citizenship. The proposed rule would increase this fee by 351 percent,
to $1,600 or six weeks of minimum wage take-home pay.
The comment stated that in all of these cases, immigrants living in
the United States could be prevented from increasing their income,
obtaining the right to vote, and reuniting with family members abroad
because they are unable to afford the proposed naturalization fees.
Response: Consistent with full cost recovery and the beneficiary-
pays principle emphasized throughout this final rule, the new fees
represents USCIS' estimated full cost of adjudicating the forms at the
time of USCIS' FY 2019/2020 fee review. USCIS used all available data
at the time it conducted its fee review to estimate the full cost of
adjudication for benefit requests. DHS does not believe that the
changes in the fees will limit the ability of noncitizens to obtain the
required documentation to be eligible to work if qualified.

H. Comments on Changes to Form I-129, Petition for a Nonimmigrant
Worker

Comment: Multiple commenters objected to the increase in fees for

[[Page 46862]]

petitions requesting O and P nonimmigrant status. Commenters
highlighted the increased costs and burdens to U.S.-based petitioners,
including non-profit organizations, small entities, and cultural
institutions. Some commenters objected to treating petitions for O and
P visa classifications differently, as DHS proposed to create Form I-
129O for entities to petition for O visa classification and Form I-
129MISC to petition for P visa classification and other categories of
nonimmigrant visas. A commenter wrote that the proposed Form I-129MISC
would only further delay P-visa classification processing, especially
as P, Q, R, and H-3 visa classifications are vastly different. Another
commenter said the I-129MISC classifications are so vastly different
that there is a higher risk that an officer will apply certain criteria
to the P visa classification that is only applicable to another
classification. A few commenters stated Form I-129MISC is an
inappropriate option for P visa classification and instead suggest
combining P visa classification form with Form I-129O or creating a
separate P visa classification form to replicate I-129O with minor
modifications.
Response: DHS acknowledges similarities between the uses of O and P
nonimmigrant visa classifications. However, USCIS currently records
time per adjudication (i.e., completion rates) for Form I-129 petitions
requesting O visa classification discretely so we are able to calculate
a separate fee for the O nonimmigrant classification. Time spent
adjudicating petitions requesting P visa classification are aggregated
with the time spent adjudicating all of the nonimmigrant
classifications requested using the new Form I-129MISC. Thus, USCIS is
unable to distinguish the time spent adjudicating petitions requesting
P nonimmigrant workers from the time spent on adjudicating requests for
the other types of workers included in Form I-129MISC, and therefore we
have not calculated a separate fee for the P classification. Therefore,
DHS declines commenters' suggestions to charge the same amount for
petitions requesting O nonimmigrant classification and P nonimmigrant
classification and implements fees based on data that show
adjudications of O nonimmigrant petitions require more staff, and are
therefore more costly, than adjudications of petitions for nonimmigrant
classifications that may be requested using Form I-129MISC. DHS will
revisit the fees for all of the new Forms I-129 that are created in
this rule in the next biennial fee review.
Comment: Commenters on the effect of the religious worker program
stated:
That the proposed changes to Form I-129 unduly burden
religious organizations because religious workers have limited means to
petition for R nonimmigrants, hindering their ability to provide
pastoral care while respecting vows of poverty.
Petitioners requesting R nonimmigrant workers currently
pay a $460 fee for Form I-129. Under the proposal, the fee would be
$705, a $245 or 53 percent increase.
The steep fee increases would have a chilling effect on
U.S. religious workers and would burden religious orders and their
vital work in American communities.
International religious workers provide critical pastoral
care and social services for American parishioners and communities.
These fees would disproportionately affect small religious
organizations that serve a charitable function in our society.
Response: In this final rule, DHS adjusts the fees for all types of
Form I-129 to reflect the estimated full cost of adjudication. DHS does
not believe that the fee increases implemented in this final rule will
impose unreasonable burdens on petitioners, churches, religious
organizations, or small entities who wish to petition for a
nonimmigrant religious worker. DHS realizes that many religious workers
have limited means and some take a vow of poverty, but the R-1
religious worker does not petition for his or her own employment and is
not responsible for paying the Form I-129 fee, because the organization
is required to submit Form I-129 and pay the fee. DHS declines to make
changes in this final rule in response to these comments.
Comment: One commenter noted that the changes to the way USCIS
reviews and adjudicates H-1B petitions have resulted in slower
processing times, shifting standards for approval of petitions, and an
increase in Requests for Evidence (RFEs).
Response: DHS is unsure how the commenter thinks changes in H-1B
nonimmigrant adjudications impact this rulemaking. DHS is breaking the
Form I-129 into several forms that will focus the information collected
and instructions on the nonimmigrant category. DHS anticipates that
this will result in more efficient completion and adjudication of the
forms and declines to make changes in this final rule in response to
the comment.
Comment: Many commenters called the 25-person limit for Form I-129
petition for H-2A, O, or P performers ``arbitrary.'' A few commenters
stated that USCIS fails to provide any information or data supporting
the 25-person limit or increased fees. One commenter questioned how
USCIS determined their per worker/petition cost because it would cost
the same to have a petitioner with one beneficiary as it would to have
a petitioner with 25 beneficiaries. A few commenters suggested that the
proposed 25-beneficiary cap as applied to arts ensembles would multiply
costs for arts organizations and would preclude them from considering
larger performing groups. The commenters also said the 25-beneficiary
cap would create ``new risks for USCIS confusion'' and unnecessary
processing delays. A commenter suggested that O- and P-nonimmigrant
classifications also limit the numbers of beneficiaries on a single
petition, reasoning that USCIS should not apply the same fee for cases
with fewer beneficiaries. Some commenter's stated that the separating
of I-129 will create confusion and delays.
Response: DHS disagrees with commenters that the separating of Form
I-129 will create confusion and delays. USCIS is limiting the number of
named beneficiaries to 25 that may be included on a single petition for
H-2A, H-2B, H-3, O,\103\ P, Q, E, and TN workers. As previously
discussed in section I of the preamble of the NPRM, limiting the number
of named beneficiaries simplifies and optimizes the adjudication of
these petitions, which can lead to reduced average processing times for
a petition. Because USCIS completes a background check for each named
beneficiary, petitions with more named beneficiaries require more time
and resources to adjudicate than petitions with fewer named
beneficiaries. This means the cost to adjudicate a petition increases
with each additional named beneficiary. Thus, limiting the number of
named beneficiaries may ameliorate the inequity of petitioners filing
petitions with low beneficiary counts who effectively subsidize the
cost of petitioners filing petitions with high beneficiary counts.
---------------------------------------------------------------------------

\103\ While O-1 petitions are limited to a single named
beneficiary, a petition for O-2 nonimmigrant workers may include
multiple named beneficiaries in certain instances. See 8 CFR
214.2(o)(2)(iii)(F).
---------------------------------------------------------------------------

DHS acknowledges similarities between the uses of O and P
nonimmigrant classifications. Annual receipt data for each nonimmigrant
classification petitioned for on Form I-129 can be found in the
Regulatory Impact Analysis throughout Section (K) and more specifically
Table 7. However,

[[Page 46863]]

USCIS currently records time per adjudication (i.e. completion rates)
for Form I-129 petitions requesting O nonimmigrants discretely, but
records time spent adjudicating petitions requesting P nonimmigrants
aggregated form such that it is combined with the time spent
adjudicating all classes of nonimmigrant classifications that may be
requested using the new Form I-129MISC. Thus, USCIS is unable to
distinguish the time spent adjudicating petitions requesting P
nonimmigrants from the time spent on adjudicating requests for the
other types of visas included in Form I-129MISC. Therefore, DHS cannot
charge a separate fee for P nonimmigrants or charge the same amount for
petitions requesting O and P nonimmigrants. DHS implements fees based
on data that show adjudications of O nonimmigrant petitions require
more staff, and are therefore more costly, than adjudications of
petitions for nonimmigrant workers that may be requested using Form I-
129MISC. The evidence suggests that the additional fee in this final
rule does not represent a significant economic impact on these
entities.
Comment: A few commenters wrote that applicants with one or two
beneficiaries are subsidizing applications with multiple beneficiaries,
which could further diminish, if not eliminate, farmers' margins. A few
commenters indicated that limiting petitions to 25 named beneficiaries
and requiring farmers to file separate petitions would create an
immense paperwork burden; multiplying the costs to access the H-2A
program; and increasing the workload for USCIS as well as for farmers
who produce labor intensive agricultural commodities.
Response: DHS agrees that petitions with one or two named
beneficiaries subsidize petitions with greater numbers of named
beneficiaries, because petitions with fewer named workers require less
time to process but pay the same fee. In this final rule, DHS adjusts
the fees for all types of Form I-129 to reflect the estimated average
cost of adjudication for the relevant form. Setting the fee at the
level of the average cost necessarily entails some cross-subsidization
between petitions that are less costly to adjudicate and those that are
more costly to adjudicate.
DHS data indicates that the limit of 25 named beneficiaries per
petition established in this final rule will significantly limit the
amount of cross-subsidization between petitions with few named workers
and many named workers. Previously a single petition might contain a
single named worker or hundreds of named workers, implying a high level
of cross-subsidization, given the disparity between the cost of
adjudicating a petition with a single named worker and the cost of
adjudicating a petition with hundreds of named workers. Limiting the
number of named beneficiaries per petition to 25 effectively limits the
amount of cross-subsidization per petition, because it limits the
maximum disparity in the number of background checks to 24 (25-1) and
overall cost of adjudications between petitions.
DHS declines to make changes in this final rule in response to
these comments.
Comment: A few commenters suggested a flat application fee with an
add-on fee per beneficiary.
Response: DHS considered and rejected the approach suggested by the
commenter. Past experience has demonstrated to DHS the complexity of
administering sliding scale fees. DHS believes that the system
implemented in this final rule of limiting an individual petition to a
maximum of 25 named beneficiaries minimizes the administrative
complexity, while also clearly delineating the cost for individual
petitioners. DHS acknowledges that this system continues cross-
subsidization between petitions that include few named beneficiaries
and those that include 25 named beneficiaries, but DHS determined that
25 was a logical number because USCIS immigration services officers
could generally adjudicate a petition with 1-25 named workers in 2
hours. 84 FR 62309. DHS believes that the administrative simplicity of
this system outweighs concerns about cross-subsidization.
Comment: Some commenters generally opposed limiting the number of
H-2A beneficiaries and increasing fees. One commenter opposed the fee
changes for named and unnamed beneficiaries. The commenter stated DHS
lacks a large amount of data, including the amount of time and effort
required to process these petitions. Several commenters expressed
support for USCIS lowering the fees for unnamed I-129 petitions, but
opposed increasing the fees for a Form I-129 with named beneficiaries.
One commenter stated that USCIS' justification for separating fees for
named and unnamed petitions are valid, but due to the significantly
higher filing fee for petitions filled with a named worker, petitioners
will be incentivized to file unnamed worker petitions and require
significantly more resources to be expended by the State Department in
order for workers to obtain their visas. A commenter stated that the
department failed to explain why it does not discuss an option of using
improved technology to reduce processing time for named beneficiary
petitions.
Response: In this final rule, DHS establishes the fee for each Form
I-129 subtype at the estimated average cost of adjudication. DHS used
all available data at the time it conducted its fee review to estimate
the cost of adjudication for Form I-129 subtype. DHS disagrees with the
commenter who wrote that USCIS did not have sufficient data.
DHS acknowledges that some petitioners may choose to file petitions
for unnamed workers with a lower fee than petitions for named workers
with a higher fee. However, choosing to petition for unnamed workers
also incurs additional costs associated with consular processing.
Furthermore, in some instances, petitioners may need to submit
petitions for named workers. Thus, DHS does not believe its changes to
the fee structure for petitions with named and unnamed beneficiaries
will substantially change petitioner behavior.
DHS declines to make changes in this final rule in response to
these comments.
Comment: A commenter stated that members of its trade association
would face a 529 percent increase in filing costs because of the
proposed Form I-129H2A changes. The commenter stated that this change
is contrary to Congressional intent and that USCIS' justification
relies on it performing duplicative background checks on workers who
have already been vetted by the Department of State. A few commenters
doubted that USCIS could use background checks to determine whether
workers have left the country for 3 months after 3 years, reasoning
that CBP officials do not record land-based departures from the
country. One commenter suggested USCIS develop an entry and exit system
to help track the amount of time a worker has spent in and out of the
country and having an online system should expedite the process and
allow USCIS and the petitioner to get an approval at a more efficient
speed. Another commenter said that forgoing the full background check
and instead just doing a shorter update background check on petitions
for workers who already possess a visa and who are already in the
United States could save extraordinary amounts of time, money, and
effort.
Response: USCIS must conduct full background checks on named
workers and does not merely check to determine how much time the worker
has spent

[[Page 46864]]

outside of the United States. In this final rule, DHS establishes the
fee for Form I-129H2A at the level estimated to represent the full cost
of adjudication. DHS declines to make changes in this final rule in
response to these comments.
Comment: Many commenters generally opposed the changes to the Form
I-129 and its fees as it applies to the arts, writing that artists
should be treated better and the arts should be promoted. A commenter
stated that the proposal would diminish the quality of arts in the
United States, as artists would be unable to afford to tour and make a
living from their craft. Commenters indicated that the proposal would
harm local communities, small businesses, and non-profits, as artists
would be unable to afford to perform here. A commenter wrote that
artists' contribution to the U.S. market is greater than what they
actually ``earn,'' mentioning that artists help draw in international
demand. Commenters also stated that international artists provide a
vital service in promoting cultural exchange and U.S. soft diplomacy. A
commenter wrote that its art school teaches Scottish music, and
hindering the school's ability to procure Scottish talent would operate
to the detriment of the school, its students, and the community it
serves. One commenter stated their organization already navigates
significant uncertainty in gaining approval for petitions, due to
lengthy processing times, uneven application of statutes and policies,
and extensive and even unwarranted requests for further evidence to
support petitions. The commenter stated that the proposed fees would
only exacerbate these issues for performers. A few commenters said this
NPRM would make it harder for their businesses to hire foreign
musicians. Some commenters said the proposal would create financial
barriers that will harm U.S. arts organizations and the local economies
these organizations support. The commenters stated that if artists are
unable to come to the U.S., the public will be denied the opportunity
to ``experience international artistry.'' One commenter that provides
legal services to overseas artists and performance groups wrote that
the proposal would negatively impact their business and its clients,
many of whom are small businesses.
Response: DHS agrees with the commenters' views of the arts a
vitally important and beneficial. Nevertheless, the fees DHS
establishes in this final rule are intended to recover the estimated
full cost to USCIS of providing immigration adjudication and
naturalization services. DHS does not intend to deter or unduly burden
petitioners requesting workers in the arts, but any preferential
treatment provided to petitioners for performers and musicians is borne
by other petitioners, applicants, and requestors. DHS declines to
require other applicants and petitioners subsidize the cost of
petitioning for workers in the arts.
Comment: Some commenters discussed the rule's impact on farmers and
the H-2A program. Several commenters said their use of H-2A workers
allows them to have trained and trusted labor that has been properly
vetted through the USCIS system. Likewise, several commenters said the
proposed increase of H-2A filing fees would be especially harmful
considering the difficulty farmers have obtaining enough and dependable
domestic workers. A commenter stated that the proposed increase of H-2A
filing fees would contravene the Executive Order on Buy American and
Hire American. In contrast, one commenter expressed support for
increased fees and rationalized that fees would improve their ability
to compete with farms that spend less on labor and make it more
appealing for farms to consider hiring citizens.
Response: In this final rule DHS adjusts the fees for all types of
Form I-129 to reflect the estimated full cost of adjudication. DHS
declines to make changes in this final rule in response to these
comments.
Comment: Multiple commenters referenced an OIG report titled ``H-2
Petition Fee Structure Is Inequitable and Contributes to Processing
Errors.'' A few commenters said USCIS uses this report as justification
for their proposed changes, but they claimed the audit separates
filings into small (1-10), medium (11-40) and large (more than 40) and
does not suggest limiting the number of beneficiaries to specifically
25. One commenter said the report explicitly refrains from recommending
a change in fees, noting that collecting more detailed cost data will
be critical for USCIS to ``inform its H-2 petition fee setting
activities.'' Another commenter quoted the report saying that a ``flat
fee is not consistent with Federal guidelines that beneficiaries pay
for the full (or actual) cost of services provided or that established
user fees be based on costs and benefits.''
Response: DHS appreciates commenters' references to the report by
the DHS Office of the Inspector General. As stated in the NPRM, DHS
establishes separate fees of forms for different types of Form I-129
filings to distinguish the different cost of adjudicating different
kinds of petitions. DHS believes that the changes implemented in this
final rule, including establishing a maximum limit of 25 named
beneficiaries per petition, and differentiated fees based on whether a
petition requests named or unnamed workers, are consistent with and
responsive to the recommendation of the DHS OIG report.
Consistent with the recommendations highlighted by commenters, DHS
used detailed cost data to distinguish between the average cost of
adjudicating petitions with named and unnamed beneficiaries where
applicable. In establishing different fees that distinguish the
differences in the average cost of adjudication, DHS addresses concerns
that the previous flat fees were not consistent with the beneficiary-
pays principle of user fees.
DHS declines to make changes in this final rule in response to
these comments.
Comment: A few commenters stated that USCIS does not provide any
data, evidence, or information in its proposed rule regarding the costs
associated with conducting site visits through the Administrative Site
Visit and Verification Program (ASVVP). The commenters added that USCIS
has failed to articulate how these site visit costs are not already
covered by the $500 Fraud Prevention and Detection Fee and other
related fees submitted by petitioners for certain categories of
nonimmigrant workers, such as for certain H-1B and L workers. One
commenter concluded that USCIS must disclose this data so that the
public can fully evaluate whether the increased fees that USCIS is
proposing accurately encompass the ASVVP costs associated with
adjudicating certain categories of nonimmigrant workers.
Response: DHS disagrees with the commenter's assertion that DHS
failed to provide any data related to the costs of the ASVVP program.
In the supporting documentation published on November 14, 2019 to
accompany the NPRM, DHS identified $5.4 million in payroll and travel
costs of the ASVVP program. As DHS described in the NPRM, USCIS
attributed these costs to the relevant form types in proportion to
their share of the total ASVVP costs of $5.4 million. Form I-129H1
received $3.6 million of these costs while Form I-129L received $0.6
million, Form I-129MISC received $1.0 million, and Form I-360 received
$0.1 million. These figures do not sum to $5.4 million due to rounding.
USCIS cannot use revenue from the statutory Fraud Prevention and
Detection Fee to cover the costs of the ASVVP program. USCIS scopes all

[[Page 46865]]

activities funded by the Fraud Detection and Prevention Fee outside of
its fee reviews, because DHS is unable to adjust the fee by rulemaking.
Furthermore, USCIS, by statute, does not retain the entirety of the
Fraud Detection and Prevention Fee. As explained in the NPRM, the USCIS
FY 2019/2020 fee review, like previous fee reviews, estimates the costs
to be recovered by fees deposited into the Immigration Examinations Fee
Account. Unlike the fees addressed in this rulemaking, the Fraud
Detection and Prevention Fee is not deposited into the IEFA. Instead,
that revenue is deposited into the Fraud Detection and Prevention
Account and is used for different purposes beyond the scope of this
final rule. DHS declines to make changes in this final rule in response
to the comment.
Comment: A commenter opposed the increased L-1 application fees and
took issue with USCIS' rationale that the fee is based on ``the
completion rate for the average of L-1 petitions.'' The commenter
stated that if USCIS diverted resources away from adjudicating L-1
petitions, imposing adjudicatory criteria unauthorized by INA or USCIS
regulations, and issuing unnecessary, duplicative RFEs, the completion
rate for L-1 nonimmigrants would return to its historical norm.
Response: USCIS used the most recent data available at the time it
conducted the FY 2019/2020 fee review. Contemplating alternatives
suggested by the commenter are beyond the scope of this rulemaking. DHS
declines to make changes in this final rule in response to the comment.
Comment: A few commenters wrote to oppose the fee increases for
transitional workers in the Commonwealth of the Northern Mariana
Islands (CNMI). These commenters stated the proposed fees would put a
financial burden on businesses and the economic development of CNMI. A
commenter wrote that the CNMI was still recovering from recent
disasters and noted that the economy had barely stabilized after Super
Typhoon Yutu hit in October of 2018. The commenter referred to a U.S.
Department of the Interior report that documented the shortage of U.S.-
eligible workers affecting businesses in the Commonwealth and said the
proposed fee increase of 53 percent for Petitions for a CNMI-only
Nonimmigrant Transitional Worker would place a financial burden on
businesses still recovering from disasters. The commenter requested
that the increase for this petition be tabled, citing the provisions of
U.S. Public Law 110-229 that detailed Congress' intent to grant the
Commonwealth as much flexibility as possible in maintaining existing
businesses and other revenue sources.
Response: In this final rule, DHS establishes fees that reflect the
average cost of adjudication. DHS declines to make other applicants and
petitioners subsidize petitions for transitional workers in the CNMI
and does not make changes in response to these comments.

I. Premium Processing

Comment: Multiple commenters opposed the proposal to lengthen the
timeframe for USCIS to take an adjudicative action on petitions filed
with a request for premium processing from 15 calendar days to 15
business days. Commenters stated that the proposed change would reduce
the level of service that USCIS provides to petitioning entities and
delay the arrival of greatly needed workers, thereby imposing an
economic cost on petitioners. Multiple commenters said the relaxation
of the premium processing deadline would result in slower
adjudications, higher prices, and slowed hiring.
Response: DHS acknowledges that some petitioners may wait up to
four or more days longer for USCIS to take an adjudicative action on a
petition for which a petitioner has requested premium processing
service. DHS further acknowledges that this may result in slightly
longer waits for workers for petitioning entities. However, DHS
disagrees that adjusting the timeframe for adjudicative action on a
petition for which premium processing service has been requested from
15 calendar days to 15 business days would meaningfully harm
petitioning entities. DHS was not able to quantify the estimated cost
to petitioning entities of these additional delays.
DHS is adjusting the timeframe for premium processing for multiple
reasons. The current timeframe does not consider the days on which
USCIS staff are unavailable to adjudicate cases, such as when there is
a federal holiday or inclement weather preventing employees from coming
to work. Therefore, a surge in applications may coincide with a period
when USCIS staff have substantially less than 15 working days to
receipt and adjudicate a petition with premium processing. In the past,
there have been instances when USCIS was unable to adjudicate all of
the petitions for which petitioners requested premium processing within
the 15-calendar day timeframe. This led USCIS to refund the premium
processing fee for petitions that were not adjudicated within 15
calendar days and to temporarily suspend premium processing service.
DHS believes that extending the premium processing timeframe from 15
calendar days to 15 business days will allow USCIS adequate time to
take adjudicative action on petitions and will provide petitioners with
a consistent and predictable experience. Therefore, DHS declines to
adopt the commenters' suggestions.
Comment: Multiple commenters said that the premium processing delay
would harm American businesses that face workforce gaps and that the
cost of premium processing service reduces arts organizations' budgets
for other activities. The commenters wrote that the change to the
premium processing timeline would exacerbate these inefficiencies and
increase uncertainty. Additionally, it would only further lower USCIS'
accountability standards. A commenter similarly stated that increasing
the premium processing timeframe would adversely impact businesses that
pay premium processing fees because of their urgent workforce needs,
and they suggested that further delays to the processing timeline would
have a ``chilling effect'' on the overall process. One comment stated
that changing the premium processing time will deter businesses from
doing business in the United States. Another commenter added that in
many cases, the issuance of an RFE is a stalling technique and that if
DHS premium processing regulations to be 15 business days instead to
calendar days that senseless and unnecessary RFEs will not continue.
Response: DHS understands that sometimes a petitioning employer
needs USCIS to take quick adjudicative action. However, as stated in
the NPRM, DHS believes that changing from calendar days to business
days may reduce the need for USCIS to suspend premium processing for
petitions during peak seasons. This may permit USCIS to offer premium
processing to more petitioning businesses each year. DHS believes the
possibility that a petitioner requesting premium processing service may
need to wait a few additional days for adjudicative action is a small
cost to impose for being able to expand premium processing to more
requests and reduce the likelihood for future suspensions of premium
processing service. DHS does not think additional days will reduce the
desire of businesses to request premium processing. DHS also disagrees
with the assertion that USCIS issues RFEs as a stalling tactic. USCIS
officers issue RFEs, in their discretion, to provide the petitioner an
opportunity to supplement

[[Page 46866]]

the record when eligibility has not been established. USCIS officers do
not send RFEs just because they are near the 15-day maximum time for
action.
Comment: Commenters requested that USCIS reinstate the
``traditional expedite'' option for non-profits that seek to enhance
the cultural and social interest in the United States.
Response: USCIS has implemented an expedite policy for certain
petitions in the past. Whether a petitioner seeks to enhance the
cultural and social interest in the United States may have been
considered when USCIS decided to favorably exercise its discretion when
considering expedite requests. However, expedited processing is a
policy that is implemented using guidance and not governed by
regulations. DHS is amending USCIS' fees and fee-related regulations in
this final rule that require notice and comment rulemaking to
effectuate. Petitioners do not pay a fee when submitting an expedite
request, and the decision to grant or deny an expedite request does not
affect the fees required for the underlying petition. Thus, expedite
policy is outside the scope of this rulemaking. DHS may consider
whether to provide expedited processing for certain petitions based on
its workload in other areas and ability to meet promised deadlines.
Also, depending on the immigrant or nonimmigrant classification sought,
the petitioner may request premium processing service by filing Form I-
907 and paying the associated fee. This final rule, though, makes no
changes in response to this comment.
Comment: A commenter asked if DHS would consider the additional
revenue received by USCIS from higher premium processing fees as
another revenue stream.
Response: DHS understands that the commenter is suggesting that
USCIS consider additional revenue from higher premium processing fees.
The INA permits DHS to charge and collect a premium processing fee for
employment-based petitions and applications. The fee revenue must be
used to provide certain premium-processing services to business
petitioners and to make infrastructure improvements in the
adjudications and customer service processes. By statute, the premium
processing fee must be paid in addition to any applicable petition/
application fee. The statute provides that DHS may adjust this fee
according to the Consumer Price Index. See INA section 286(u), 8 U.S.C.
1356(u); Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 2762,
2762A-68 (Dec. 21, 2000). DHS increased the USCIS premium processing
fee in both 2018 and 2019. See 83 FR 44449 (Aug 31, 2018) (increasing
the fee to reflect inflation from $1,225 to $1,410); 84 FR 58303 (Oct.
31, 2019) (increasing the fee from $1,410 to $1,440).
DHS regularly considers if USCIS' premium processing fee should be
adjusted considering the rate of inflation, cost, and revenue needs.
DHS prefers to adjust the premium processing fee outside of rules, like
this one, that adjust fees comprehensively based on USCIS' full costs
recovery model. The primary reason is because the premium processing
fee may be adjusted by inflation; notice and comment rulemaking is not
required. See 84 FR 58304. In addition, USCIS regularly analyzes
whether to remove eligible categories based on its ability to meet
demand or designate new benefit requests as eligible for premium
processing in accordance with previous 8 CFR 103.7(e); new 8 CFR 106.4.
For example, DHS recently determined that a few categories of
employment authorization documents qualify as employment-based
petitions and applications for business customers under INA section
286(u), 8 U.S.C. 1356(u). Thus, USCIS is considering permitting premium
processing requests for qualifying categories of employment
authorization that may be requested on USCIS Form I-765. When and if
USCIS decides to provide premium processing for additional requests,
USCIS will announce on its website, those requests for which premium
processing may be requested, the dates upon which such availability
commences and ends, and any conditions that may apply. New 8 CFR
106.4(e). This final rule, though, makes no changes in response to this
comment and adjusts only USCIS' non-statutory, non-premium processing
fees that DHS has the authority to adjust for full cost recovery via
public notice and comment rulemaking.

J. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Nonimmigrant Workers (Pub. L. 114-113 Fees)

Comment: DHS received many comments on the change in how DHS
interprets the statutory language in Public Law 114-113 to change the
benefit requests to which the fee would apply. The comments are
summarized as follows:
USCIS lacks the authority to create such a fee increase
and that only Congress has this authority.
USCIS lacks the authority to reinterpret language from
Public Laws 111-230 (2010) and 114-113 (2015) and that the proposal
invents ambiguity that does not exist with respect to the extension of
the $4,000 or $4,500 fee to extension petitions.
Extending the Public Law 114-113 fee for qualifying H-1B
and L-1 petitions is contrary to Congressional intent and represents an
effort to deter legal immigration from certain countries. DHS's
interpretation of Public Law 114-113 is inconsistent with the agency's
historical regulatory interpretation.
Congress set the amounts and parameters for the fees and
Public Law 111-230 (2010) and Public Law 114-113 (2015) do not support
the revisions.
Congress' consistent reenactment of the statute without
changing the statute's meaning with respect to when the fee is required
suggests Congressional intent that the scope of the 9-11 Response fee
continue.
Examples of Congress' use of the language in Public Law
114-113 demonstrate that the DHS interpretation is not consistent with
the intent of Congress.
Congress provided clear and unambiguous language
instructing DHS that the additional fee be combined with the fraud
prevention and detection fee and the proposed change is an effort to
thwart the plain instruction of Public Law 114-113.
Language from Public Laws 111-230 and 114-113 support that
the current statutory language was not ambiguous and the addition of
the word combined in 2015 in Public Law 114-113 was not merely a
clarifying edit as stated in the NPRM and Congress' actions over the
past decade make it clear that the filing fee does not apply to
extension petitions.
Federal courts would not grant Chevron deference to the
agency's effort to reinterpret the word combined because it is a non-
complex, nontechnical word in common public usage and the agency does
not have special expertise in determining the definition of combined.
This interpretation is not only correct, it is mandated by
the statutory language.
Congress limited the circumstances requiring the 9-11
Response fee to only those for an application for admission and this
language does not naturally apply to applicants for extension of time,
for an amendment to terms, or for a change in status.
The fees would negatively affect employers because it
would require them to pay the fee multiple times for the same employee
because the duration of an approval may be less than one year.
Companies that hire from countries like India, where
beneficiaries may wait

[[Page 46867]]

for an immigrant visa number for decades, would have to file extensions
until the worker becomes a permanent resident.
Because USCIS routinely limits the expiration date of Form
I-797 approval notices to the end date of the specific contract,
resulting in short approval periods, employers will be forced to file
extension petitions once the Statement of Work is renewed, incurring
new filing and legal fees. The fee would result in employers opting not
to hire or extend nonimmigrant employees which would have negative
impacts on workers, companies, and the overall economy. H-1B and L-1
workers benefit the economy by increasing business efficiency, reducing
costs for specialized work, and filling workforce gaps.
Response: DHS disagrees with the commenters' assertions that the
statutory language is unambiguous or that DHS does not have the
authority to interpret the statutory language. The statutory text
refers to, among other things, an increase to H-1B and L-1 filing and
fraud prevention and detection fees. Such fees are typically collected
by DHS, either by USCIS upon the filing of an H-1B or L-1 petition or
by CBP for certain visa-exempt L-1 nonimmigrants. The statutory text
clearly shows that Congress intended DHS, in addition to the U.S.
Department of State, to administer Public Law 114-113 and collect the
associated fees. Such authority is also consistent with the general
authority provided to DHS under INA section 214(a) and (c)(1), 8 U.S.C.
1184(a) and (c)(1), as well as, by incorporation, the specific
authority provided in INA section 214(c)(12), 8 U.S.C. 1184(c)(12). DHS
also explained in the NPRM how the statutory text is ambiguous, and
that explanation remains unchanged.
DHS understands that it must provide a valid explanation of its
changed position and provide a reasoned explanation for disregarding
facts that underlay the prior policy. See Encino Motorcars, LLC, v.
Navarro, 136 S.Ct. 2117, 2125 (2016). DHS acknowledges the commenters'
concerns about the effect of our change in interpretation on
petitioning employers, and that the statute is open to different
interpretations. However, DHS is providing considerable advance notice
of this change to those affected by it, and the fee will only apply to
future petitioners after the effective date of this final rule. DHS may
change its initial interpretation when engaging in rulemaking and
consider different interpretations when deciding to continue with a
current policy. See, Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. 467 U.S. 837, 863 (1984). As we stated in the NPRM, DHS
believes that the Public Law 114-113 fee should apply to all extension
of stay petitions because that interpretation gives meaning to all of
the statutory text. That interpretation is also the most consistent
with the goal of the statute to ensure employers that overly rely on H-
1B or L nonimmigrant workers' pay an additional fee by making the fee
applicable to petitions, including extensions of H-1B or L status,
filed by employers that meet the statute's 50 employee/50 percent test,
regardless of whether or not the fraud fee also applies. 84 FR 62322.
In other words, the fee should apply to all H-1B or L-1 petitions,
whether for new employment or an extension of stay. Consequently, DHS
makes no changes in response to these comments.
Comment: A commenter requested that USCIS reinstate policy
memoranda related to deference, such as the 2004 USCIS Memorandum, The
Significance of a Prior CIS Approval of a Nonimmigrant Petition in the
Context of a Subsequent Determination Regarding Eligibility for
Extension of Petition Validity. The commenter also requested that USCIS
enforce 8 CFR 214.2(1)(14)(i) to provide appropriate deference to
officers' prior decisions regarding L-1. The commenter wrote that this
would mitigate the need for fee increases for L1-nonimmigrant petition
filings.
Response: DHS has no intent to reinstate the 2004 memo in this fee
rule. This final rule is focused on establishing appropriate fees for
different nonimmigrant worker classifications and not altering existing
evidentiary requirements, such as those found at 8 CFR 214.2(l)(14)(i).
Consequently, the changes suggested by this commenter were not
mentioned or proposed in the NPRM and are outside the scope of this
final rule.

K. Comments on Other General Feedback

Comment: Commenters wrote that fees should be raised based on
inflation or social security cost of living increases, and that fee
increases would be unnecessary if USCIS trained its officers.
Response: As explained in the NPRM and this final rule, DHS adjusts
USCIS' fee schedule to ensure full cost recovery. DHS cannot guarantee
that future inflation rates or social security cost of living
adjustments applied to fees will yield sufficient revenue to ensure
full cost recovery. In other words, adjusting fees by inflation or
social security cost of living adjustments may be insufficient to
recover the full cost of providing adjudication and naturalization
services. As a result, DHS rejects the notion that fees should be
raised based on inflation or social security cost of living increases
and will continue to comply with the CFO Act by evaluating fees on a
biennial basis and recommending adjustments to USCIS' fee schedule, as
necessary.
Comment: A commenter opposed scenario A and stated that it would be
unreasonable for the agency to compel the public to evaluate six
different scenarios. The commenter added that, in order for the final
rule to be valid, it must include only the fee schedule that the public
was given adequate time to evaluate, and the agency may not use the
final rule to codify a ``suite of alternative fee schedules'' that it
can switch between at will without public comment.
Response: DHS stated in the NPRM that subject to certain
limitations, the proposed fees may change in the final rule based on
policy decisions, in response to public comments, intervening
legislation, and other changes. 84 FR 62327. To reduce the uncertainty
that such conditions present to the affected public, USCIS proposed six
fee scenarios that lay out what the fees would be if certain conditions
materialize and present a range of fees. Id. DHS disagrees that the
public is incapable of reviewing and commenting on multiple proposed
fee scenarios. The fee schedule adopted in this final rule falls within
the range of the six scenarios. The policies implemented in this final
rule are the same, or are logical outgrowths of, those contained in the
NPRM.
The intent of the comment period provided under the APA is to allow
agencies to consider public feedback on proposed rules and make changes
as appropriate. Because a single change made in response to public
comments may affect multiple fees, it is impossible to provide a final
set of fees in a NPRM unless it were to be adopted without any
modification, thereby negating the value of public feedback. DHS
declines to make any adjustments in the final rule in response to these
comments.
Comment: A commenter said the severability provision suffers from
``logical outgrowth'' concerns, stating that it would do nothing to
protect a final rule if key provisions of the proposed rule changed so
much in the final rule that the public was not given fair notice. In
contrast, a commenter stated they ``wholly'' agreed with the
severability provision because the provisions each part function
independent of other provisions. The commenter supported codifying the

[[Page 46868]]

intent that provisions be severable to protect the goals of the
proposed rule.
Response: DHS is unsure of the relationship between a logical
outgrowth and severability to which the commenter refers. DHS is making
no changes in this final rule that the public would not view as a
possibility based on the contents of the proposed rule. DHS realizes
that many parts of this final rule are interrelated, but most are
severable and can be implemented independently from the remainder of
this final rule's provisions.
DHS declines to make any adjustments in the final rule in response
to these comments.
Comment: A commenter wrote that DHS should allow applicants to
elect their delivery method for their secure document, DHS failed to
justify why the agency is adopting Signature Confirmation Restricted
Delivery (SCRD) to deliver secure documents, and DHS should publish a
notice in the Federal Register each time USCIS proposes to add SCRD to
any additional document beyond Permanent Resident Cards, Employment
Authorization Cards, and Travel Booklets. One commenter supported SCRD
as the sole method of delivery for secure documents. Another commenter
wrote that it is an unnecessary burden to place on low-income or rural
residents to travel to the post office or arrange to hold a secure
document for pick-up.
Response: USCIS may use the United States Postal Service (USPS)
Secure Confirmation Restricted Delivery (SCRD) service for delivery of
all USCIS secure identification documents: Permanent Resident Card,
Employment Authorization Document, and Travel Document Booklets once
this final rule is effective. New 8 CFR 103.2(b)(19)(iii)(A). USCIS
already uses SCRD when documents are returned by USPS as undeliverable
after being sent by Priority Mail with Delivery Confirmation. USCIS
plans to use only USPS initially for SCRD when appropriate because only
the USPS can deliver to post office boxes and military addresses (i.e.,
APO addresses). Other delivery services like FedEx or UPS would just
leave the package on the doorstep, require a signature, or require it
to be picked up. In addition, the current application process does not
support choosing a different delivery method, although DHS is exploring
more delivery methods as a future capability.
USPS's Signature Confirmation Restricted Delivery (SCRD) product
requires the addressee to provide proof of identification and sign for
delivery of their secure document. Applicants may also designate an
agent to sign on their behalf, by notifying USPS and completing PS Form
3801, Standing Delivery Order, or PS Form 3801-A, Agreement by a Hotel,
Apartment House, or similar. SCRD permits USCIS and applicants to track
their document utilizing the USPS website up to when the document is
delivered. The authority for USCIS to use the SCRD process will improve
tracking and accuracy of delivery and will improve resolution of
questions from applicants. Recipients will also have the ability to
change their delivery location by going to the USPS website and
selecting ``hold for pickup'' to arrange for pickup at a post office at
a date and time that suits them. It is not unnecessarily cumbersome or
unreasonable to expect document recipients to undertake the time and
expense to ensure that documents as important as those issued by USCIS
get into the right people's hands.

L. Cost Analysis and DHS Rationale for Fee Adjustments

Comment: Many commenters stated that USCIS proposed a 21 percent
fee increase without evidence that it will improve immigration benefit
services. Some commenters suggested that USCIS should find ways to
revise the NPRM and include data that would make the connection between
fee and efficiency increases in the adjudication process, as currently
there is no evidence linking the two. Other commenters wrote that USCIS
should rescind inefficient policies rather than increase fees to
subsidize them, higher fees pass the costs of USCIS inefficiency to the
public, fee hikes are not justified because USCIS has record long
processing times, and needs to revert to its prior procedures for
processing cases before increasing fees.
Response: As explained in the NPRM, USCIS considered all cost and
operational data that was available at the time it conducted the FY
2019/2020 fee review, including data related to potential cost-saving
measures. It does not account for recent cost-saving initiatives for
which data was not yet available at that time. However, USCIS will
evaluate and incorporate any relevant cost-savings data into its next
biennial fee review. To the extent that potential process efficiencies
are recognized in the next biennial fee review, cost-savings may lessen
the impact of future fee adjustments.
Similarly, DHS recognizes that certain USCIS policies may increase
the cost of completing its work. USCIS accounted for those cost
increases where it had data available at the time it conducted the FY
2019/2020 fee review. It does not account for recent policy initiatives
that may increase costs for which data were not available at the time
of the FY 2019/2020 fee review. In its next biennial fee review, USCIS
will continue the practice of using all available data to determine
total costs and appropriate fees to recover those costs.
DHS believes that USCIS policies are necessary for the agency to
effectively achieve its mission and fulfil statutory mandates. USCIS
faithfully adheres to immigration law and carefully considers the pros,
cons, costs, and ramifications of all policy initiatives it undertakes.
In its FY 2019/2020 fee review, USCIS estimated total costs to the
agency of providing immigration adjudication and naturalization
services. In the NPRM and this final rule, DHS has fully explained and
justified the cost increases that necessitate USCIS fee adjustments.
Comment: Another commenter criticized USCIS' use of the ABC model
to predict the cost of adjudicating forms. The commenter wrote that the
model predicts different costs in 2019 compared to 2016 with no
explanation, USCIS increased the ABC model baseline with no explanation
and USCIS' explanation for ``low volume reallocation'' is used as a
pretext for the Department's policy priorities.
Response: USCIS' cost projections for the FY 2019/2020 biennial
period have increased relative to the FY 2016/2017 biennial period.
However, DHS disagrees with the commenter's assertion that it provided
no explanation of the change in USCIS' costs between 2016 and 2019. The
NPRM provides USCIS' FY 2018 AOP amount used as a baseline to inform FY
2019/2020 cost projections. It also explains projected cost increases
over the FY 2019/2020 biennial period from that FY 2018 baseline,
including the need for additional staff, pay adjustments for existing
staff, and other net additional costs. See 84 FR 62286 (Nov. 14, 2019).
Additionally, DHS clarifies that USCIS' ABC model does not predict
costs. Instead, it assigns cost projections to operational activities
and then to immigration benefit requests as explained in the supporting
documentation that accompanies this final rule.
DHS categorically denies that ``low volume reallocation'' or ``cost
reallocation'' is a pretext with any intent other than to exercise its
discretion to limit the fee for certain applications and petitions in
recognition that fees set at the ABC model output for these forms would
be overly burdensome and possibly unaffordable for the affected

[[Page 46869]]

applicants, petitioners, and requestors.\104\ In its discretion, DHS
determined that it would be appropriate to limit the fee increase for
the following forms, while also rounding to the nearest $5 increment:
---------------------------------------------------------------------------

\104\ DHS may reasonably adjust fees based on value judgments
and public policy reasons where a rational basis for the methodology
is propounded in the rulemaking. See FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
---------------------------------------------------------------------------

Form I-290B, Notice of Appeal or Motion,
Form I-360, Petition for Amerasian, Widow(er) or Special
Immigrant,
Form I-600, Petition to Classify Orphan as an Immediate
Relative,
Form I-600A, Application for Advance Processing of an
Orphan Petition,
Form I-600A/I-600, Supplement 3, Request for Action on
Approved Form I-600A/I-600,
Form I-800, Petition to Classify Convention Adoptee as an
Immediate Relative,
Form I-800A, Application for Determination of Suitability
To Adopt a Child From a Convention Country, and
Form I-800A, Supplement 3, Request for Action on Approved
Form I-800A.
In the NPRM, DHS explained that limiting the fee increase for these
forms requires DHS to shift the costs to other fee-paying applicants,
petitioners, and requestors via increased fees for other forms. If
USCIS did not perform cost reallocation, then fees for other
applications and petitions would be lower than those implemented in
this final rule, and USCIS would not recover its estimated full cost of
providing immigration adjudication and naturalization services. As
explained in the NPRM, DHS determined that it would deviate from
previous fee rules by not limiting the fee increase for the following
forms:
Form I-601A, Provisional Unlawful Presence Waiver,
Form I-765, Application for Employment Authorization,
Form I-929, Petition for Qualifying Family Member of a U-1
Nonimmigrant,
Form N-300, Application to File Declaration of Intention,
Form N-336, Request for a Hearing on a Decision in
Naturalization Proceedings,
Form N-400, Application for Naturalization, and
Form N-470, Application to Preserve Residence for
Naturalization Purposes.
DHS outlined in its NPRM that other fees would be lower in
recognition of additional revenue anticipated from the fee increases
for these forms. The primary objective of not limiting the fee increase
for these forms is to reduce the cost burden placed upon other fee-
paying applicants, petitioners, and requestors.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Commenters attended a February 3, 2020 meeting with USCIS
to observe the ABC cost modeling software. In follow-up comments, the
attendees said that many questions remain outstanding about how USCIS
developed its proposal. Many of their follow-up comments were the same
as those made by other commenters, which are responded to in other
sections of this preamble. Some of their comments were unique due to
observations of the software, including:
Why have the costs for Form N-400s risen so dramatically,
Can USCIS explain the 900 line items in the budget,
Scenario modeling other than references to the six
Scenarios A-F as described in the proposed rule, and
USCIS explained that cost reallocation takes place outside
of the ABC model but did not show the spreadsheet.
Response: In its NPRM, DHS provided the public with an opportunity
to request an appointment to view the ABC software that USCIS uses to
help calculate immigration benefit fees. See 84 FR 62281. The purpose
of the February 3, 2020 meeting was to provide an overview of the
software and demonstrate how it works. In other words, USCIS allowed
these public commenters (who requested an appointment) to view the
software and showed them how it leverages operational data inputs
(i.e., FY 2019/2020 cost baseline, receipt volume projections, and
completion rates) to determine the activity costs and fee-paying unit
costs that inform proposed fees. A discussion regarding cost increases
associated with Form N-400 and a detailed explanation of each USCIS
budget line item was outside the scope of this meeting, which was
focused on the ABC software. USCIS officials did not provide
deliberative materials or supplemental information to these public
commenters that is not in the record for the NPRM and in the docket.
Although briefly discussed, the public commenters did not specifically
ask USCIS officials during the meeting to view the separate spreadsheet
used to calculate cost reallocation. However, as explained in the
supporting documentation that accompanies this final rule, cost
reallocation is simply the process USCIS uses to reassign costs to each
form fee to ensure full cost recovery. Total reassigned costs are the
sum of the products of the fee-paying volume and model output for those
forms with fees held below the model output, less the sum of the
products of the fee-paying volume and the final fees for those same
forms. Explained another way, a spreadsheet assigns the cost of limited
fee increases or workload without fees to the fees that DHS does not
limit for various policy reasons. We call this process cost
reallocation. USCIS multiplies the fee-paying receipt forecast by the
model output for each form. This calculates a total cost for that form.
For the fees that DHS does not limit, we use the total cost for each
form to reallocate the cost of limited fee increases or workload
without fees. As a result, forms with the highest cost receive a larger
share of cost reallocation. While terminology may have been
different,\105\ this is the same process that DHS used in the previous
three fee rules. See 84 FR 62294. DHS believes that assigning more
costs to forms with the highest cost is in line with the beneficiary
pays principal emphasized throughout this rule.
---------------------------------------------------------------------------

\105\ Previous proposed IEFA fee schedules referred to limited
fee increases as ``low volume reallocation'' or ``cost
reallocation.'' The FY 2016/2017 proposed fee schedule used both
phrases. See 81 FR 26915. The FY 2010/2011 and FY 2008/2009 proposed
fee schedules used the phrase ``low volume reallocation.'' See 75 FR
33461 and 72 FR 4910, respectively.
---------------------------------------------------------------------------

DHS declines to make changes in this final rule in response to
these comments.
Comment: Another commenter discussed information needed, but not
provided at the meeting (even upon request in some cases) in order to
understand how the software works. Because USCIS has failed to provide
stakeholders with the opportunity to analyze the entire set of relevant
information that USCIS has used to calculate the proposed new fees, the
commenter opposed the entire new rule and requested that USCIS continue
using the current fee schedule until USCIS provides access to the
``FULL SET'' of information it used and enough organized time to submit
comments.
Response: The purpose of the February 3, 2020 meeting was to
provide an overview and demonstration of the ABC software that USCIS
uses to calculate immigration benefit fees. As was offered in the NPRM,
USCIS officials provided the attendees with complete information on the
inputs for the fee calculations and explained how the software works.
An attendee posed several questions that would have

[[Page 46870]]

required USCIS to provide deliberative information, granular
assumptions underlying all aspects of the USCIS budget, an in-depth
explanation of particular fee adjustments, and policy rationale
associated with the Form N-400 fee (in excess of what is in the NPRM
and supporting documentation). The questions asked went beyond the
software demonstration, would have expanded the meeting considerably,
and would have provided the attendee additional information that was
not relevant. DHS believes that all relevant information is readily
available in the NPRM and supporting documentation.
DHS declines to make changes in this final rule as a result of the
comment.
1. Workload Projections
Comment: Multiple commenters stated that USCIS used unreasonable
workload receipt projections in its cost model. One commenter cited
figures in Table 5 of the NPRM detailing the average annual fee-paying
receipts projection and said that they do not reflect the stated
subtotals and grand totals. Similarly, another commenter said USCIS has
not explained the source for its data on volume projections entered
into the ABC model. Commenters also highlighted concerns with projected
workload and fee-paying receipts for certain individual form types such
as Form I-526.
Response: DHS acknowledges that workload receipt volume projections
used in the FY 2019/2020 fee review did not materialize in FY 2019
exactly as forecasted. USCIS' Volume Projection Committee (VPC)
developed workload volume projections for the FY 2019/2020 fee review
in FY 2017. The VPC considers all available data at the time it
finalizes projections, including statistical forecasts for each form,
analysis of recent trends, and consideration of future policy
initiatives that are known at that time. The VPC integrates this
information with subject matter expertise and judgement to provide
unified receipt volume projections by form type for use in the biennial
fee review and other operational planning purposes.
Certain filing trends have changed since USCIS forecasted the FY
2019/2020 fee review workload and fee-paying receipt volumes. USCIS
simply cannot predict all filing changes that will affect actual
receipt volumes. USCIS used the best information available at the time
it conducted the FY 2019/2020 fee review to develop workload and fee-
paying receipt volume forecasts.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Some commenters stated that USCIS based its workload
receipt forecasts on limited and unrepresentative data, using data only
from June 2016 to May 2017. Commenters stated that USCIS did not
explain why it chose this period. A commenter also said that USCIS'
fee-paying volume assumptions reflect ``filing trends and anticipated
policy changes,'' but it is not clear how USCIS accounted for these
factors. Another commenter said that projected volumes do not account
for current processing times. Estimates used FY 2016-2017 data, but
processing times have increased since then.
Response: The commenters are generally mistaken. DHS did not use a
single 12-month period of data to project anticipated workloads for the
FY 2019/2020 biennial period. To establish workload projections, USCIS'
VPC always evaluates the best available information, including
historical application volumes and trends, including data that extend
far beyond a single 12-month period. For example, USCIS used 10 years
of data to estimate Form I-90 renewals. In accordance with this
procedure, USCIS evaluated all available information at the time it
conducted the FY 2019/2020 fee review to establish its workload
projections for the biennial period. See 84 FR 62289. Therefore, DHS
rejects the claims that its volume forecasts are unsubstantiated.
USCIS did use data from the June 2016 to May 2017 period to
estimate a proportion of individuals who pay the filing fee by form
type. In its NPRM, DHS referred to this proportion as ``fee-paying
percentage.'' See 84 FR 62290. DHS used this data to calculate fee-
paying volumes for each form type under current policy and to estimate
the effects of policy changes in the NPRM. DHS used data from the June
2016 to May 2017 period because it was the most current data available
at the time USCIS conducted the FY 2019/2020 fee review and using a
full year of data can smooth out fluctuations that may occur from month
to month. DHS believes that use of this data is correct and appropriate
and declines to make changes in this final rule in response to these
comments.
Comment: A commenter wrote that the NPRM does not make clear
whether projected receipts only include new applications anticipated in
2020, or also includes applications in the backlog.
Response: DHS reiterates that all workload figures in this final
rule are projected volumes and do not include existing pending
caseload. 84 FR 62288 (stating that revenue estimates were based on
projected volumes).
Comment: A commenter who attended the February 3, 2020 software
review meeting at USCIS stated that evidence does not support the
projected figure for future Form N-400 filings. The commenter stated
that receipts may decrease because of the fee increase and elimination
of fee waivers. The NPRM says USCIS adjudicated 830,673 Forms N-400 in
FY 2016/2017 and expects to adjudicate 913,500 in the FY 2020-21
biennium. The commenter understood from the meeting that USCIS
``surveyed its staff,'' but said it does not know how staff came up
with the application volume data to arrive at their volume projections.
The commenter questioned USCIS' assertion that they will receive more
N-400s than in the previous year given the drastic fee increases the
agency seeks.
Response: DHS used the best information available at the time USCIS
conducted the FY 2019/2020 fee review to develop receipt volume
projections. The VPC considered all relevant statistical forecasts,
recent trend analysis, and subject matter expertise. It also considered
the potential effects of future policy changes. The VPC does not survey
staff generally. Instead, the VPC considers input of subject matter
experts in conjunction with statistical forecasts to determine a final
volume forecast.
2. Completion Rates
Comment: A commenter wrote that USCIS should use completion rates
to estimate all activity costs as was done in the previous USCIS fee
rulemaking. A commenter wrote that the NPRM provides only some
completion rates, but the information by itself is not useful in
assessing justifications for proposed fee increases. A commenter wrote
that Table 6 in the NPRM demonstrates that completion rates for most
forms are as low as 1-2 hours, indicating that most forms include fees
at a cost of hundreds of dollars an hour. A commenter wrote that the
completion rates for Form N-400 with a filing fee of $1,170 come out to
a cost of $745.22 an hour, whereas an EB-5 form for a wealthy investor
includes a filing fee of $4,015 at a rate of $464 an hour. The
commenter asked why it costs USCIS so much less to work on Form I-526,
which is a much more complicated and time consuming petition requiring
very specialized and more experienced officers, than that required to
adjudicate Form N-400. Other commenters also mentioned the disparate
hourly rates between Form N-400 and EB-5 workload, stating that the
proposed fees

[[Page 46871]]

are not supported by the costs of completion and that the cost per
completion rate for these forms shows the fees are a wealth test.
Response: It is not accurate to say that USCIS used completion
rates to estimate all activity costs in the previous rulemaking. In the
last three fee rules, USCIS used completion rates to assign costs from
the Make Determination activity to individual cost objects (i.e.,
forms). USCIS continued this approach in the FY 2019/2020 fee review.
The fees DHS enacts in this final rule are based on the same
methodology that was used in previous fee rules.
DHS understands the skepticism induced by simply dividing a form's
proposed fee by the completion rate in an attempt to estimate the
hourly processing cost. However, the calculation performed by the
commenter does not accurately represent the per hour cost of
adjudicating a particular form. Such a calculation presumes that all
costs are associated with the Make Determination activity and ignores
the costs associated with other activities, such as the Issue Document
activity, that are not based on completion rates. In addition, all fees
greater than the model output (i.e., receive cost reallocation)
represent the full amount of both the estimated cost of adjudicating
the form and other costs associated with providing similar services at
no or reduced charge to asylum applicants and other immigrants. USCIS'
fees must recover estimated full costs, not just the direct costs to
adjudicate forms.\106\
---------------------------------------------------------------------------

\106\ See FY 2019/2020 Immigration Examinations Fee Account Fee
Review Supporting Documentation with Addendum, which is part of the
docket for this final rule. It provides more information on how
USCIS conducted the fee review and defines the activities in it.
---------------------------------------------------------------------------

DHS declines to make changes in this final rule in response to
these comments.
Comment: A commenter criticized USCIS for not disclosing actual
case completion per hour statistics in the NPRM or supporting
documentation.
Response: DHS provided completion rates (hours per completion) in
Table 6 of the NPRM. See 84 FR 62292. Appendix Table 10 of the
supporting documentation that accompanies this final rule also includes
them.
Comment: A commenter wrote that USCIS does not explain whether
prior year expenses used in calculations for immigration application
fees under Section IV(B) include activities that courts later enjoined,
or whether the calculation included legal costs related to litigating
the issues in court. If so, the commenter asked that USCIS recalculate
expense and completion rates.
Response: As explained in the NPRM, proposed fees are informed by
cost projections for the FY 2019/2020 biennial period. See 84 FR 62888.
DHS does not use prior year expenses to calculate immigration benefit
request fees. Additionally, as stated in the supporting documentation
that accompanies this final rule, USCIS does not track actual costs by
immigration benefit request. Therefore, DHS does not believe that an
additional explanation is necessary and declines to make changes in
this final rule in response to the comment.
3. USCIS Staffing
Comment: Multiple commenters wrote that the NPRM seeks to justify
fee increases by a need for more staffing, yet USCIS has employees
performing enforcement work for ICE and CBP. Other commenters supported
the addition of employees to improve USCIS case processing times.
Response: In response to the migration crisis at the United States
southern border, USCIS did provide staff on detail to ICE for clerical
assistance in the creation and management of immigration case files.
USCIS detailed the staff to ICE without reimbursement as provided in
law. See Emergency Supplemental Appropriations for Humanitarian
Assistance and Security at the Southern Border Act, 2019, Public Law
116-26, tit. III (Jul. 1, 2019). This temporary support to ICE
represented a miniscule proportion of total USCIS staff. Marginal costs
associated with this effort are not in this final rule, as USCIS did
not assume an additional staffing requirement for this workload in the
FY 2019/2020 fee review. Additionally, DHS does not assign USCIS
employees to perform enforcement work for ICE and CBP.
DHS proposed to hire additional USCIS employees for the reasons
stated in the NPRM. USCIS estimates that it must add an additional
1,960 positions in FY 2019/2020 (relative to FY 2018 authorized
staffing levels) to address incoming workload.\107\ However, the fee
schedule that has been in place since December 23, 2016 is insufficient
to fund this additional staffing requirement. The total estimated
staffing requirement of 20,820 in this final rule represents an
increase of 6,277 or 43 percent from the FY 2016/2017 fee rule
(14,543). DHS believes that this estimate is lawful and fully justified
based on the best information available to USCIS at the time it
conducted the FY 2019/2020 fee review.
---------------------------------------------------------------------------

\107\ This represents 138 fewer positions than reflected in the
NPRM due to the removal of estimated additional staff associated
with DACA. See the Form I-821D, DACA Renewal Fee section for
additional information regarding why DHS is not implementing a fee
for Form I-821D in this final rule.
---------------------------------------------------------------------------

Comment: Another commenter said USCIS indicates that it uses a
staffing model to predict needs based on workload receipts and target
processing times, but USCIS has not identified target processing times
or described its method for calculating workload receipts, other than
to explain that a committee looked at trends and models. Further, the
commenter said it is not clear what outputs that staffing model
generated.
Response: DHS uses multiple, different techniques to forecast
USCIS' workloads. Ultimately, the VPC reviews, deliberates, and reaches
a final consensus on every forecast, as described in the NPRM and
elsewhere in this final rule. DHS uses these workload forecasts as
inputs to Staffing Allocation Models, which determine the estimated
staffing requirements for USCIS. DHS outlines USCIS' total estimated
IEFA authorized staffing requirement by directorate in Appendix Table 7
of the supporting documentation that is in the docket for this final
rule. See 84 FR 62281. DHS declines to make changes in this final rule
as a result of the comment.
Comment: A commenter said USCIS needs to fill important open
positions in order to address significant backlogs, citing a 2019 USCIS
report to Congress.
Response: DHS concurs with this commenter's statement. This is one
reason why DHS is adjusting USCIS' fees in this final rule. DHS
believes that the final fees will yield additional revenue that USCIS
can use to hire and fill additional positions necessary for
adjudicating incoming workload. The ability to adjudicate incoming
workload may help USCIS mitigate future backlog growth.
Comment: A commenter wrote that USCIS does not explain why the NPRM
includes funding for a 44 percent increase in staffing levels from FY
2016/2017, or why this increase was not anticipated in the 2016 fee
rule just 3 years earlier. The same commenter stated that USCIS should
at the very least provide the public with a version of fee review
supporting documentation Appendix Table 6 that goes back 10 years,
broken down by directorate, and actual staffing numbers for each fiscal
year. Similarly, another commenter said USCIS fails to explain why the
increase of 5,000 in staff from 2018 to 2019 is merited.

[[Page 46872]]

Response: DHS articulated in the NPRM that, ``This additional
staffing requirement reflects the fact that it takes USCIS longer to
adjudicate many workloads than was planned for in the FY 2016/2017 fee
rule and that workload volumes, particularly for work types that do not
currently generate fee revenue, have grown.'' See 84 FR 62286. Although
USCIS used all available data at the time it conducted the FY 2016/2017
fee review, it necessarily used historical data and trends to inform
its projections. USCIS was unable to foresee these additional staffing
needs at the time it implemented the FY 2016/2017 fee rule because of
nearly unprecedented growth in workloads such as credible fear and
affirmative asylum. Furthermore, USCIS could not perfectly anticipate
all policy and operational changes that influence adjudication times.
USCIS cannot afford the estimated staffing requirement necessary to
address its incoming workload under the previous fee structure. If
USCIS maintains current staffing levels, DHS believes that backlogs
would grow. Therefore, DHS adjusts USCIS' fees in this final rule to
generate additional revenue that may be used to fund staff that will
adjudicate incoming workload and potentially mitigate or stabilize
future backlog growth.
DHS declines to make changes in this final rule in response to
these comments.
4. Cost Baseline
Comment: Multiple commenters claimed that DHS did not adequately
explain the growth in USCIS costs from the FY 2016/2017 fee rule and
that DHS failed to provide justifications for 57 percent of the
increase in costs from the previous fee rule. A commenter stated that
USCIS dismisses the option of reducing projected costs with a single
sentence and is a ``fatal defect'' in the NPRM. Other commenters said
that in overstating workload volumes, DHS overestimated the costs to be
recovered by USCIS' fee schedule.
Response: In its NPRM, DHS highlighted changes from USCIS' FY 2018
Annual Operating Plan (AOP) to the FY 2019/2020 cost baseline. See 84
FR 62286. The authorized staffing levels and FY 2018 AOP costs are
higher than FY 2016/2017 fee rule projections. After the FY 2016/2017
fee rule became effective on December 23, 2016, USCIS funded additional
staff and other agency initiatives through a combination of additional
revenue resulting from higher fees and available carryover funds. Per
Figure 4 of the supporting documentation that accompanies this final
rule, USCIS expected to draw down its carryover funds in FY 2019 and FY
2020 because base operating costs were projected to exceed incoming
revenue. In other words, USCIS forecasted an annual operating deficit
in both years. DHS determined that USCIS cannot sustain recurring
annual operating deficits of this magnitude and continue to fund itself
in this manner, necessitating an adjustment to the fee schedule based
on the results of the FY 2019/2020 fee review.
As detailed in the NPRM, a primary driver of cost growth from the
FY 2018 AOP to the FY 2019/2020 cost baseline is payroll for on-board
and new staff. See 84 FR 62286. This staff is necessary to process the
projected workload receipt volume, which exceeds USCIS' current
workload capacity. Strategic investments in staffing may help USCIS
mitigate or stabilize future backlog growth. Furthermore, net
additional costs include non-pay general expense enhancements for
requirements such as secure mail shipping for permanent resident cards
and other secure documents ($27 million), USCIS headquarters
consolidation ($32 million), increased background checks ($18 million),
IT modernization efforts ($32 million), customer engagement center ($23
million), and inflationary increases for contracts. This final rule
does not transfer funds to ICE or implement new DACA fees. Therefore,
DHS removed $207.6 million for ICE and $18.7 million of DACA costs in
this final rule. Table 6 is a revised crosswalk summary from the FY
2018 AOP to the FY 2019/2020 cost baseline used to inform the fee
schedule in this final rule.

Table 6--Revised Cost Baseline Projections
[FY 2019/2020 fee review IEFA non-premium budget (in millions)]
------------------------------------------------------------------------

------------------------------------------------------------------------
Total Base FY 2018 IEFA Non-Premium Budget.............. $3,585.6
Plus: Net Spending Adjustments.......................... 217.2
---------------
Total Adjusted FY 2018 IEFA Non-Premium Budget...... 3,802.8
Plus: Transfer to ICE................................... ..............
Plus: Pay Inflation and Promotions/Within Grade 280.2
Increases..............................................
Plus: Net Additional Costs.............................. 249.0
---------------
Total Adjusted FY 2019 IEFA Non-Premium Budget...... 4,332.0
Plus: Pay Inflation and Promotions/Within Grade 218.6
Increases..............................................
Plus: Net Additional Costs.............................. 5.8
---------------
Total Adjusted FY 2020 IEFA Non-Premium Budget...... 4,556.4
------------------------------------------------------------------------

DHS did not overstate its projected costs for recovery via USCIS'
fee schedule. Generally, whenever an overestimate of workload and/or
fee-paying receipts materialize, proposed fees are often understated.
For example, assume there is a total cost estimate of $100.00 for an
agency to recover via one user fee. If there were 100 projected fee-
paying applicants to assign a total cost estimate of $100.00 to, then
the proposed fee would be $1.00. However, if the actual fee-paying
receipt volume materialized at half or 50, then the proposed fee should
have been double or $2.00 to recover full cost because there were fewer
fee-paying applicants to absorb the $100.00. Using this same example,
even if the $100.00 was high due to an overestimate of volume
projections and it should have been only $80.00 (to account for a
notional marginal cost change), the proposed fee would remain $2.00
($80.00/50 = $1.60 or $2.00 when rounded to the nearest whole
dollar).\108\ As previously explained, USCIS uses the best information
available at the time it conducts biennial fee reviews.\109\

[[Page 46873]]

Forecasts may not materialize exactly as initially projected due to
many factors. Consequently, USCIS reevaluates its fees on a biennial
basis and makes adjustments, if necessary.
---------------------------------------------------------------------------

\108\ In reality, a lower receipt volume often does not produce
a cost reduction within the span of a two-year period due to fixed
costs associated with facilities, staff, and other overhead.
\109\ OMB Circular A-25 clarifies that ``full cost shall be
determined or estimated from the best available records of the
agency, and new cost accounting systems need not be established
solely for this purpose.''
---------------------------------------------------------------------------

DHS declines to make changes in this final rule in response to
these comments.
Comment: A commenter stated that USCIS rests the proposed new fees
on the outcome of a budget model but gives little indication of how it
derived the budget in the first place. For example, USCIS states that
the budget is derived from the FY 2018 AOP, but it is not clear from
the proposal and supplemental material what estimates, assumptions, or
operating practices this plan embodies or why this plan is relevant
(instead of a more recent plan or actual operating figures). In
addition, the commenter said USCIS states that its budget reflects an
``adequate level of operations,'' plus ``funding for [certain]
enhancements,'' but does not explain either concept. The commenter also
said the proposal does not give commenters a full understanding of
other aspects of the budget, including the ICE funds transfer, staff
salaries and benefits, what assumptions are driving the estimates of
budget growth, how much carryover USCIS is budgeting for or how that
affects the proposed fees, and how USCIS plans to use premium
processing revenue or why such revenue does not offset any of the fees
that USCIS proposes based on its non-premium budget.
Response: As explained in the supporting documentation that
accompanies this final rule, USCIS establishes an AOP (detailed budget
execution plan) at the beginning of each fiscal year that is consistent
with the annual spending authority enacted by Congress. The FY 2018 AOP
is USCIS' basis for the FY 2019/2020 cost baseline, which informs
proposed fees in the NPRM and final fees in this final rule. DHS
clarifies that USCIS considers an ``enhancement'' to be additional
funding in excess of the base annual operating plan. This estimated
additional funding (i.e., cost projections) are outlined in both the
NPRM and Cost Baseline section of this final rule.
Information and assumptions about USCIS' carryover are located in
the IEFA Non-Premium Carryover Projections section of the supporting
documentation that accompanies this final rule. Additionally, premium
processing revenue, as explained in the Premium Processing section of
this final rule, may only be used for limited purposes as provided by
law.
DHS declines to make changes in this final rule in response to the
comment.
Comment: Commenters identified differences between their estimate
of USCIS' expenditures in FY 2018-2019 and DHS' cost estimates for
those years in the NPRM. The commenters contended that DHS appears to
have substantially overstated USCIS' FY 2018-2020 costs. Additionally,
commenters noted that USCIS' FY 2019-2021 congressional justifications
convey lower amounts than DHS' cost estimates in the NPRM.
Response: The commenters' conclusion that USCIS' FY 2018-2019
actual expenditures are less than its cost estimates for those years in
the NPRM is correct. Furthermore, the commenters' observation that
USCIS' FY 2019-2021 congressional justifications requested less
budgetary authority than the cost estimates for those years in the NPRM
is also correct. However, contrary to the commenters' assertions, this
does not mean that DHS overstated USCIS' costs or that USCIS does not
need to collect the amount of revenue it identified in the NPRM.
DHS developed cost estimates for addressing projected incoming
workloads during the FY 2019/2020 period. As identified in the NPRM,
USCIS is unable to fully fund its estimated budgetary requirements
(i.e., FY 2019/2020 cost baseline or cost projections) via the existing
fee schedule, thereby necessitating fee adjustments in this final rule.
Thus, USCIS expended less in FY 2018-2019 than its cost projections for
addressing incoming workloads precisely because it did not have
sufficient available resources to meet its estimated budgetary
requirements. Similarly, the congressional justifications cited by the
commenters reflect USCIS' estimates, at different points in time, of
the funds it would be able to execute based on anticipated resources
available to the agency under current policy and fees, rather than the
cost projections of addressing incoming workloads forecasted during the
FY 2019/2020 fee review. Therefore, DHS's NPRM cost projections differ
from actual expenditures and congressional justifications because they
reflect USCIS' estimated budgetary requirements to fully address
projected incoming workloads as of a particular point in time.
Given that USCIS did not have available resources equivalent to its
estimated budgetary needs in FY 2018 and 2019, it was not able to hire
the number of staff estimated by its Staffing Allocation Models. The
underfunding of USCIS' requirements increased processing times and
backlogs. USCIS' fee schedule must recover the estimated costs of
addressing incoming workloads to ensure that it has sufficient
resources to operate and limit the future growth of processing times
and backlogs.
DHS declines to make adjustments in this final rule in response to
these comments.
Comment: Similarly, a commenter stated that the NPRM uses opaque
and invalid budget assumptions and neither the proposed rule nor the
commenter's meeting with USCIS have provided any way for the public to
adequately understand, much less analyze, future costs and revenue
estimates. The commenter said cost and revenue baselines are not
aligned, as USCIS is using two completely different time periods to
inform its proposed fee rule: A relatively antiquated time period (June
2016 to May 2017) as the baseline for revenues, and a relatively recent
time period (FY 2018) as the baseline for costs. The commenter
characterized this as ``perplexing'' given that USCIS surely knows its
actual costs and revenues for any prior fiscal year. The commenter also
detailed their analysis that concluded that projected costs and
revenues do not match actual costs and revenues, which the commenter
said raises several issues that USCIS must explain to the public.
Response: DHS disagrees with the commenter's contention that USCIS'
budget assumptions are opaque and invalid. The commenter is incorrect
in stating that USCIS used two different time periods to determine
revenue and cost projections for the FY 2019/2020 fee review and that
the revenue and cost baseline are not aligned. USCIS used data from
June 2016 to May 2017 to determine one data element, fee-paying
percentages, that informed its FY 2019 and FY 2020 revenue forecasts.
This is only one data input among several that USCIS considers in
forecasting revenue. DHS maintains that its use is appropriate.
Furthermore, USCIS used the same data to inform the FY 2018 AOP,
insofar as it was also an input into the FY 2018 USCIS revenue
forecast.
DHS declines to make changes in this final rule in response to the
comment.
Comment: A commenter wrote that there is an especially great burden
on USCIS to disclose a full and transparent accounting for why it
requires an average annual budget of $4.67 billion, as the role of the
agency's cost-modeling software is simply to accept this number ``as a
received truth'' and allocate it among all of the various form types.
This commenter said USCIS provides

[[Page 46874]]

almost no explanation for why it is projecting such high costs,
especially when the agency's actual costs in FY 2018, 2019, and 2020
were so much lower than its own projections.
Response: DHS acknowledges that USCIS' actual expenditures in FY
2019 were less than the projected costs in this final fee rule.
Furthermore, the commenter is correct in stating that the FY 2019 and
FY 2020 cost projections in the NPRM exceed the total budget authority
requested for USCIS in the Congressional Justifications that accompany
the President's annual budget proposal for those years. This reflects
the fact that the revenue generated under the previous USCIS fee
schedule was insufficient to adequately fund the agency's needs. The
President's budget proposal did not request authority for USCIS to
spend money that it was not expecting to have. The difference between
the cost projections and actual USCIS expenditures across this time
manifested in backlog growth and unmet operational needs. It does not
reflect inaccurate projections of the cost to USCIS of fully funding
its operational requirements.
DHS has fully explained and justified USCIS' projected costs to
meet its operational requirements and address its projected workload.
Therefore, DHS declines to make changes in this final rule in response
to the comment.
Comment: Commenters stated that, during a meeting with USCIS Office
of the Chief Financial Officer, the group discussed the timing and
availability of information in the FY 2019/2020 fee review. A commenter
stated that the cost-modeling software uses information from 2017,
which precedes most of the notable USCIS policy changes of the past 3
years. The commenter stated that USCIS apparently attempts to predict
how costs for a given form type will change in the future, but there
has been no comprehensive modeling of the many recent developments that
would tend to reduce agency costs and put downward pressure on user
fees.
The commenter stated that USCIS does not appear to have accounted
for many recent policy changes because data was not available ``at the
time it conducted this fee review.'' The commenters wrote that more
recent data could change the number of people applying for immigration
benefits, and thus USCIS' budget estimates and fee calculations.
Another commenter stated that the rule does not suggest that USCIS has
estimated and accounted for the combined effect of these multiple
initiatives, nor could it have done so comprehensively as the
Administration's adoption of new initiatives that could affect the
number of people seeking immigration benefits has continued even since
April 2019 when USCIS completed its fee review and November 2019 when
DHS published the NPRM. The commenter said this also raises serious
questions about whether the fee review complies with the statutory
requirement for USCIS to conduct such a review and make recommendations
based on the relevant ``costs incurred.'' The commenter said the
proposal's reliance on 2018 cost projections is unreasonable. The
commenter said more recent data and projections were available or could
have been if USCIS had waited just a bit longer, and USCIS provides no
reason that 2018 figures are more relevant. The same commenter said the
proposal is additionally unreasonable because it is based on
projections for FY 2019 and FY 2020, a period that has nearly passed.
The commenter said USCIS should have based its modeling on more recent
data and projected results for the time period when any new fee rule
would be in effect.
A commenter wrote that USCIS excludes savings and benefits already
realized such as efficiencies gained through investments in information
technology, closures of international offices, and lower refugee
intake. Similarly, a commenter wrote that the RIA fails to present data
and evidence on a number of recent changes designed to reduce costs,
including limiting the availability of printed study materials, no
longer providing printed Forms N-400, centralizing all customer
inquiries and complaints on a call center, and introducing electronic
filing for many benefits.
Response: DHS acknowledges that it did not incorporate cost
increases or savings from policy initiatives for which data was not
available at the time USCIS conducted the FY 2019/2020 fee review. DHS
rejects the implication that it inappropriately failed to account for
future policy initiatives. DHS must adjust USCIS fees through notice
and comment rulemaking which, especially for a rule with a billion-
dollar impact, is a lengthy process that requires policy planning,
analysis, a proposed rule, reading and responding to comments, and a
final rule. DHS must publish a final rule that only makes changes that
are a logical outgrowth from the proposed rule, and a totally new
budget with minor changes in costs or savings cannot be substituted
between the proposed and final rules, although we adjust for
substantial sums based on intervening legislation as we did for
appropriated funds for ICE and the Citizenship and Integration Grant
Program discussed elsewhere. The immigration policy environment changes
so frequently that if USCIS were to delay finalizing a fee review until
cost data was available for all future policy initiatives, DHS would be
unable to adjust fees timely, thereby posing a fiscal risk to USCIS.
Biennial fee reviews must reflect USCIS' cost projections as of a
particular point in time as best can be determined. The same logic
applies to other operational metrics including completion rates,
revenue forecasts, and workload projections. USCIS always leverages the
best information available at the time it conducts a biennial fee
review, but it necessarily results in some costs or savings realized or
to be realized not being incorporated in the final fees simply due to
the passage of time for rule development and finalization.
In recognition of the constantly evolving immigration policy
environment and its obligations under the INA and the CFO Act, USCIS
regularly conducts biennial fee reviews. The two-year review mandate in
the CFO Act forces fee setting agencies to address the effects of just
these sorts of policy and practice changes on their fees; otherwise,
bureaucratic inertia could cause an agency to not address the soundness
of their fees versus costs and services. As it is, the two-year period
provides agencies with a reasonable period within which to regularly
address such issues, subject to the time constraints of notice and
comment rulemaking previously mentioned. To the extent that the recent
policy initiatives identified by the commenters affect USCIS' costs,
those effects will be captured in USCIS' next biennial fee review. If
the totality of new initiatives reduces USCIS' costs, it may result in
lower fees in the future for applicants and petitioners.
DHS declines to make changes in this final rule in response to the
comments.
Comment: A commenter wrote that their own estimates suggest USCIS
is attempting to increase revenue by around 49 percent over current
revenue projections based on estimated growth in applications. The
commenter said this is an extraordinary amount of revenue extracted
from its most vulnerable users.
Response: DHS is unable to replicate the commenter's estimate and
does not know the source or validity of these calculations. Regardless,
as explained in the NPRM and this final rule, DHS must adjust USCIS'
fees to recover the estimated full cost of providing adjudication and
naturalization services. DHS declines to make changes

[[Page 46875]]

in this final rule in response to this comment.
Comment: A commenter said that USCIS states that it recognizes
revenue when work is completed, asserting that the implications of this
accounting principle on USCIS' budget and fee modeling is not clear but
could be quite significant. For example, the commenter said it is
unclear whether revenue estimates are based on actual cash flow or the
amount of revenue that is recognized in a current year or if USCIS'
budget is inflated with the costs of processing applications for which
USCIS received a fee in a prior year.
Response: DHS clarifies that all figures in the USCIS fee review,
NPRM, and this final rule reflect projected costs, workload and
associated revenue for the FY 2019/2020 biennial period. DHS did not
overstate or inflate the USCIS' cost baseline because it does not
include workload for which USCIS received a fee in a prior year.
DHS declines to make changes in this final rule in response to the
comment.
5. Alternative Funding Sources
Comment: Commenters wrote that funding for USCIS should come from
another source. Multiple commenters indicated that Congress should
provide appropriations to USCIS to decrease the burden on immigrants.
Some commenters also indicated that USCIS did not consider the $10
million appropriation for citizenship grants in setting its fees.
Response: As stated in the NPRM, fees have funded USCIS since its
inception. Approximately 97 percent of USCIS' annual funding comes from
fees. USCIS must rely on fees until the law changes or Congress
appropriates funding. For FY 2019 and FY 2020, Congress appropriated
$10 million for the Citizenship and Integration Grant Program. See
Consolidated Appropriations Act, 2019, Public Law 116-6, div. A, tit.
IV (Feb. 15, 2019) and Consolidated Appropriations Act, 2020, Public
Law 116-93, div. D, tit. IV (Dec. 20, 2020). At the time USCIS
conducted the FY 2019/2020 fee review, Congress had not appropriated
$10 million for the Citizenship and Integration Grant Program. As a
result, USCIS did not expect to receive the appropriations in FY 2019
or FY 2020. Therefore, USCIS' FY 2018 AOP and FY 2019/2020 fee review
cost baseline accounted for these funds in the IEFA non-premium budget.
In this final rule, DHS clarifies that $10 million (IEFA non-premium
funds; not appropriated funds) remains in the cost baseline for other
agency initiatives. However, USCIS does not assign $10 million to only
naturalization-related forms (i.e., N-336, N-400, N-565, N-600, and N-
600K) in its final ABC model because Congress appropriated funds for
the Citizenship and Integration Grant Program. Instead, USCIS reassigns
$10 million of non-premium funds to other fee-paying forms, thereby
reducing the costs assigned to and final fees for naturalization-
related forms.
DHS declines to make any changes in this final rule in response to
these comments.

M. ICE Transfer

Comment: Many commenters wrote that they disagree with the proposed
transfer of USCIS IEFA funds to ICE. They provided a number of reasons
for their objections. Another commenter concluded that eliminating the
revenue transfer to ICE enforcement would reduce USCIS' claimed need to
eliminate ability-to-pay waivers.
Response: DHS removed the transfer of IEFA funds to ICE from this
final rule because Congress appropriated $207.6 million to ICE in FY
2020. See Consolidated Appropriations Act, 2020, Public Law 116-93,
div. D, tit. IV (Dec. 20, 2019). DHS may fund activities conducted by
any component of the department that constitute immigration
adjudication and naturalization services using the IEFA. See INA
section 286(m), (n), 8 U.S.C. 1356(m), (n). Nevertheless, the fees
established by this final rule are not calculated to provide funds to
ICE.
Comment: A commenter suggested that USCIS use the money currently
spent on detention by ICE to instead streamline and simplify the
application process.
Response: Congress appropriates funds for ICE Enforcement and
Removal Operations. Those funds are not available for use by USCIS. DHS
declines to make changes in this final rule in response to this
comment.
Comment: A commenter wrote that recent legislative action suggested
USCIS would abandon the plan to transfer funds to ICE, so the commenter
asked that USCIS confirm in its final rule that it does not have the
authority to transfer IEFA funds to ICE collected.
Response: DHS may fund activities conducted by any component of the
department that constitute immigration adjudication and naturalization
services using the IEFA. See INA section 286(m), (n), 8 U.S.C. 1356(m),
(n). DHS removed the transfer of IEFA funds to ICE from this final rule
because Congress appropriated $207.6 million to ICE in FY 2020. See
Consolidated Appropriations Act, 2020, Public Law 116-93, div. D, tit.
IV (Dec. 20, 2019). The fees established in this final rule are not
calculated to provide funds to ICE.

N. Processing Times and Backlogs

Comment: A commenter wrote that USCIS should focus on the
processing times and becoming more efficient. The commenter also
suggested that USCIS could benefit from a more streamlined electronic
process. One commenter wrote that electronic filing glitches, lost
documents, erroneous rejections, and lengthy holds should be addressed
before fees are raised. One commenter said USCIS should increase filing
technology and training of Service Officers to ensure they have the
legal knowledge of the regulations and have the platform to adjudicate
cases efficiently. The commenter said technology allocations should
specifically focus on electronic filing systems that can reduce
processing times and make document and forms submission from U.S.
employers seamless.
Response: DHS strives to save money, be efficient, and process all
requests in a timely manner while maintaining the integrity of the
United States immigration system. USCIS agrees with commenters that
electronic filing, processing, and record keeping for immigration
benefit requests is likely to provide operational efficiencies that
could aid USCIS in better using its existing resources and potentially
reduce processing times and backlogs. Although USCIS is aggressively
moving to expand e-processing to more form types, its current
operational needs dictate that it must increase fees to cover projected
costs. If USCIS realizes operational efficiencies through the expansion
of electronic benefit request filing and processing, those cost savings
will be reflected in upcoming fee reviews and may result in future fees
that are lower than they would have been in the absence of such
efficiencies. Training, software, and equipment costs are part the IEFA
budget. USCIS encourages its employee to discuss with their supervisor
if they believe that they lack the resources necessary to do their
jobs.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Many commenters who opposed the NPRM noted that
immigration benefit request backlogs and processing times have
increased under the current administration despite a fee increase in
December 2016. Many commenters stated that since 2010, USCIS increased
filing fees by weighted averages of 10 percent and 21 percent but has
not achieved any

[[Page 46876]]

associated improvement in processing times, backlogs, or customer
service. Commenters cited reports stating that during that same period
USCIS' backlog has increased by more than 6,000 percent and that the
overall average case processing time increased 91 percent between 2014
and 2018. Commenters wrote that fees should not increase until USCIS
improves its efficiency and management. Commenters wrote that an
increase in fees must be accompanied by improvement in processing
times, reduced backlogs, improved customer service, and services that
do not discriminate against the working class, low-income applicants,
and others who face financial hardships.
Response: DHS recognizes the continued growth of USCIS case
processing backlogs since it last adjusted the USCIS fee schedule on
December 23, 2016. See 81 FR 73292 (Oct. 24, 2016). The fees
established at that time proved insufficient to fund USCIS at the level
necessary to prevent growth in case processing backlogs. USCIS' costs
grew more than expected at that time because of disproportionate growth
in humanitarian workloads that did not generate revenue, increased
adjudicative time requirements per case for many different workloads
(i.e., increased completion rates), additional staff, and other
factors.
DHS is adjusting fees in this final rule because they are
insufficient to generate the revenue necessary to fund USCIS at levels
adequate to meet its processing time goals. Adjustments to USCIS' fee
schedule will generate more revenue to fund the operational
requirements necessary to meet projected incoming workloads and prevent
further deterioration in processing times. The new fees will allow
USCIS to hire more people to adjudicate cases and possibly prevent the
growth of backlogs. USCIS will continue to explore possibilities for
business process efficiencies. Future fee adjustments will reflect any
efficiencies realized by USCIS.
DHS declines to make changes in this final rule in response to
these comments.
Comment: One commenter suggested that USCIS should internally
review its processes and determine how they might be streamlined before
increasing fees. A few commenters stated that increased RFEs and
mandatory in-person interviews, among other policies, are labor
intensive and should be addressed to decrease the backlog before fees
are increased.
Response: USCIS continually evaluates its processes and pursues
efficiencies to the greatest extent possible. As explained in the NPRM,
USCIS considered all cost and operational data that was available at
the time it conducted the FY 2019/2020 fee review, including potential
process efficiencies. It does not account for recent process
efficiencies for which data was not yet available at the time. However,
USCIS will evaluate and capture any relevant cost-savings data for
process efficiencies during its next biennial fee review. To the extent
that potential process efficiencies are recognized in the next biennial
fee review, cost-savings may lessen the impact of future fee
adjustments.
DHS declines to make changes in this final rule in response to the
comment.
Comment: A commenter said an increase in fees would only further
burden those who seek services and are repeatedly met with
inefficiency, long wait times, and the inability to get answers. This
commenter said USCIS has taken away services, such as the ability to
make InfoPass appointments online, and rerouted those inquiries to
Customer Service Center where wait times to receive calls back make
emergency situations that require an InfoPass appointment even more
frustrating. Another commenter also mentioned the difficulty in making
InfoPass appointments as an example of how USCIS services have declined
in recent years due to mismanagement. Commenters said USCIS should end
policies and practices that raise fees to support the continued
administration of backlog-expanding policies and practices.
Response: USCIS continually evaluates potential operational
efficiencies. Reductions in the use of in-person appointments through
InfoMod enable USCIS to redirect resources to adjudication, potentially
improving overall customer service. USCIS evaluates and incorporates
all available information on both cost-savings and cost increases as
part of its biennial fee reviews, including the effects of policy
changes and their impact on operational processes. This final rule
adjusts USCIS' fee schedule to recover the estimated full cost of
providing immigration adjudication and naturalization services;
removing or reconsidering all USCIS policies and practices is beyond
the scope of this rulemaking.
DHS declines to make changes in this final rule in response to
these comments.
Comment: Another commenter noted that USCIS' only concrete plan was
to spend money on reducing fraud, which would not efficiently reduce
the backlog.
Response: DHS disagrees with the commenter's statement that its
only concrete plan is to spend more money on reducing fraud. USCIS
intends to use revenue from the fees to fund multiple initiatives,
including increased staffing across the agency. DHS adjusts USCIS' fee
schedule in this final rule to recover the estimated full cost of
providing immigration adjudication and naturalization services for
anticipated incoming workloads. USCIS does not incorporate the cost of
addressing existing pending caseloads in its biennial fee reviews, as
it would be inequitable to require new applicants and petitioners to
pay for the cost addressing previously submitted applications and
petitions for which USCIS already collected fees. To the extent fee
adjustments result in additional revenue for USCIS, those additional
resources may help limit future growth in pending caseload. DHS
declines to make changes in this final rule in response to the comment.
Comment: Some commenters noted USCIS' failure to implement the
recommendations of the USCIS Ombudsman's Report, which provides a
number of recommendations for improving adjudication times. One of
these commenters said DHS's failure to consider, address, or implement
recommendations from other federal government offices is telling,
asserting that these changes are simply intended to make the asylum
process more challenging for asylum applicants, and to deter asylum
applicants.
Response: DHS notes that one of the USCIS Ombudsman's
recommendations is to address delays in processing Form I-765 by
ensuring sufficient staffing resources are available to provide for
timely adjudication. DHS adjusts USCIS' fee schedule in this final
rule, including the fee for Form I-765, to provide for the recovery of
full estimates of the costs of providing immigration adjudication and
naturalization services. The Ombudsman did not recommend an increase in
the Form I-765 fee; however, adjusting the fee schedule will enable
USCIS to devote more resources, including staffing, to the adjudication
of all applications and petitions, including Form I-765. DHS reiterates
that it does not intend to make the asylum process more complicated.
DHS declines to make changes in this final rule in response to
these comments.

O. Fee Payment and Receipt Requirements

Comment: Multiple commenters opposed the proposal to allow DHS to
require the payment of certain fees by particular methods, as described
in the relevant form instructions. Commenters

[[Page 46877]]

wrote that any potential future requirement to pay fees through
electronic means such as Pay.gov would limit the ability of individuals
who lack access to bank accounts or credit cards to apply for
immigration benefits. Commenters also wrote that requiring payment
through electronic means would restrict the availability of immigration
benefits for individuals who lack computer and internet access.
Commenters stated that it is important to maintain the ability to pay
fees using cashier's checks and money orders, because they are
available to individuals without access to other banking services, such
as a credit card. Another commenter cited data from the New York City
Department of Consumer and Worker Protection, which found that less
than two-thirds of immigrant households in New York have access to
products such as checking and savings accounts and that 11 percent are
unbanked and 22 percent are underbanked. A few commenters cited Federal
Deposit Insurance Corporation numbers in writing that the proposal
would inhibit the immigrant portion of the ``unbanked'' and
``underbanked'' households in the United States from applying.
Multiple commenters said prohibiting cashier's checks or money
orders would disproportionately affect low-income immigrants and a few
commenters indicated it would impose a substantial burden on asylum
seekers. One commenter said 85 percent of the immigrant clients they
help need to use money orders, and this provision would negatively
affect them. Commenters said the proposal would lead to wide scale
confusion and inefficiency among immigrant and advocacy groups and
requested that USCIS continue to accept cashier's checks and money
orders.
Response: In this final rule, DHS does not restrict the method of
payment for any particular immigration benefit request. This final rule
clarifies the authority for DHS to prescribe certain types of payments
for specific immigration benefits or methods of submission. DHS does
not have data specific to USCIS benefit requestors' access to the
internet and/or banking but understands that particular populations
submitting requests may have attributes that make access to a bank
account more or less challenging DHS acknowledges that some requestors
may not use banks or use them on a limited basis for a number of
reasons. However, any person who can purchase a cashier's check or
money order from a retailer can just as easily purchase a pre-paid
debit card that can be used to pay their benefit request fee.\110\ In
addition, since 2018 requesters can use a credit card to pay for a
USCIS form filing fee that gets sent to and processed by one of the
USCIS lockboxes, or split the fees between more than one credit
card.\111\ The credit card used does not have to be the applicant's;
however, the person who is the owner of the credit card must authorize
use of his or her credit card. Therefore, DHS believes that requiring
the use of a check, credit, or debit card will not prevent applicants
or petitioners from paying the required fees. In addition, resources
such as libraries offer free online services, access to information and
computers that the public may use to access forms, complete, print or
submit them. Nevertheless, in evaluating future changes to acceptable
means of payment for each immigration benefit request, DHS will
consider the availability of internet access and different means of
payment to the affected populations.
---------------------------------------------------------------------------

\110\ See, e.g., Visa Prepaid Cards, at https://usa.visa.com/pay-with-visa/cards/prepaid-cards.html (last viewed 2/24/20).
\111\ See USCIS Expands Credit Card Payment Option for Fees
https://www.uscis.gov/news/news-releases/uscis-expands-credit-card-payment-option-fees.
---------------------------------------------------------------------------

DHS declines to make changes in this final rule in response to
these comments.
Comment: A few commenters raised concerns about nonrefundable fees
and rejecting checks over 365 days old, which they said were listed in
the NPRM without explanation. The commenters stated that relevant fees
should be refundable in certain situations, including when an
applicant's health or family conditions have changed or when an
immigrant is denied on a clear USCIS error.
Response: DHS provided a complete explanation of its reasoning
behind its proposed stale check or refund requirements. See 84 FR 62295
and 62296. In addition, DHS is continuing its policy to issue fee
refunds if there is a clear USCIS error, but we will not codify that
discretionary practice as a requirement on USCIS. DHS declines to make
changes in this final rule in response to these comments.
Comment: One commenter suggested that USCIS should publish any
restriction of payment in the Federal Register. The commenter also
suggested that USCIS should accept financial instruments regardless of
their age and, if it does not process, give applicants 14 days to
correct any payment errors. The commenter wrote that USCIS should not
be rejecting applicants because of payment problems unknown to them or
out of their control.
Response: DHS declines to publish any change in acceptable payment
instruments in the Federal Register. However, where DHS limits
acceptable instruments locally, nationwide, or for certain USCIS
benefit requests, it issues multiple communications and provides
sufficient advance public notice to minimize adverse effects on any
person who may have plans to pay using methods that may no longer be
accepted.\112\ As far as the age of payment instruments, as stated in
the NPRM, USCIS generally accepts and deposits payments dated up to
one-year before they are received although 6 months old is a general
standard often followed in the financial services industry. See 84 FR
62295. Because of the large volume of payments that USCIS receives on a
daily basis, handling dishonored payments adds unnecessary
administrative burden to its intake process. Assigning employees to
handle defective payments and, as suggested by the commenter, holding
filings and billing for fees that were not properly submitted, is an
opportunity cost to USCIS because those employees could otherwise
adjudicate immigration benefit requests. DHS believes that it is the
responsibility of the remitter to submit proper fees. USCIS will take
ameliorative action if a payment error is caused by the agency.
However, USCIS has no obligation to insulate filers from a payment
problem caused by the requester's financial institution, agent, lawyer,
third party check validation service, or similar parties. DHS makes no
changes in response to these comments.
---------------------------------------------------------------------------

\112\ See, e.g., USCIS Updates Fee Payment System Used in Field
Offices, available at https://www.uscis.gov/news/news-releases/uscis-updates-fee-payment-system-used-field-offices (Last Reviewed/
Updated: 3/07/2019).
---------------------------------------------------------------------------

P. Fees Shared by CBP and USCIS

Comment: One commenter suggested that previous fee reviews failed
to account for the actual adjudication costs of these forms. They
questioned if CBP costs were accounted for in previous fee reviews.
Response: DHS acknowledges that previous adjustments to the USCIS
fee schedule did not account for CBP costs for instances where CBP uses
the same form as USCIS. DHS set those fees using USCIS costs and CBP
collected the fee that was established. This final rule refines the fee
calculation by considering CBP costs and workload volumes in
establishing the fees for shared forms. However, CBP workload volumes
and associated revenue are backed out from the fee schedule shown in
the NPRM and this final rule because

[[Page 46878]]

that revenue is not available to USCIS for the purposes of funding its
immigration adjudication and naturalization services. This ensures that
USCIS' projected revenue matches its estimated costs of adjudication.
Comment: A commenter said that the hike in fees shared by CBP and
USCIS are drastic and unjustified because the cost to legalize status
will rise to thousands of dollars per person.
Response: DHS recognizes that adjustments to the fees for forms
shared by USCIS and CBP represent a sizeable increase in the cost of
those forms. However, the fees adopted in this final rule represent the
estimated full cost of adjudication. DHS declines to make changes to
the final fee schedule on the basis of this comment.
Comment: Another commenter questioned why the NPRM did not include
more recent information regarding CBP costs and suggested that if CBP
needs the revenue, they should have their own higher fees or fund their
operations through annual appropriations.
Response: DHS used the most recent CBP data available at the time
USCIS conducted the FY 2019/2020 fee review. It includes cost and
workload volume information from FY 2017 as the basis for FY 2019/2020
projections. This is consistent with the data used to develop all other
workload and cost projections represented in the fee schedule. The fees
set in this final rule that affect CBP are only those forms that USCIS
prescribes, but CBP shares for certain functions. DHS has determined
that it is appropriate to set the fees for these forms at a level
sufficient to ensure that both USCIS and CBP recover the estimated full
cost of adjudication, including the cost of providing similar services
at no charge to other immigrants. Therefore, DHS makes no changes in
this final rule in response to the comment.

Q. Paperwork Reduction Act (PRA) Comment Responses

Comment: Multiple commenters noted that the increased requirements
and additional evidence required for filing the Form I-912, Request for
Fee Waiver should increase the time burden to applicants. This includes
one commenter who noted that the submitted ``Instructions for request
for fee waiver'' states that the form will take 1 hour and 10 minutes
per response, but the currently approved form states it would take 2
hours and 20 minutes. The commenter said USCIS did not provide
rationale on why the newly revised form would take half the time when
it has not been simplified. A commenter stated that the proposed
changes to Form I-912 would present burdens to applicants with
increased evidence requirements and repetitious and extraneous
information collection. The commenter recommended that USCIS revert and
retain the previous version of Form I-912.
Response: DHS agrees that it used an outdated burden estimate in
the NPRM. In this final rule, DHS has updated the estimated time burden
for Form I-912 from 1 hour and 10 minutes to the currently approved 2
hours and 20 minutes.
Comment: One commenter noted that using the Paperwork Reduction Act
to introduce a revised fee waiver form, with new requirements, in
October 2019 in lieu of using a NPRM and then eliminating fee waivers
in this rule, was a waste of the public's time to review both
documents. A few commenters stated that eligibility based on receipt of
a means-tested benefit was due to be eliminated, but the case City of
Seattle, a court placed a nation-wide injunction on that action,
thereby affecting USCIS' plans to constrict eligibility standards for
fee waivers. USCIS has already eliminated the means-tested benefit
criteria for fee waivers, which drastically limited access to
immigration benefits. The proposed rule narrows the criteria for fee
waivers even further and eliminates the financial hardship criteria
entirely which means 400,666 individuals annually, about the population
of Tampa, FL, would be detrimentally impacted. Another commenter stated
that the fee increases are an attempt to get around the currently
enjoined 2019 fee waiver rules because it eliminates fee waivers for
most applicants. The commenter stated that the proposal seeks to
restrict legal immigration and naturalization for ``poor and non-white
people.'' Another commenter recommended that while the Form I-912
revision is enjoined by the U.S. District Court for the Northern
District of California that USCIS request public comment on a new
proposed Form I-912 that maintains options to demonstrate qualification
through receipt of means-tested benefits, financial hardship, or income
of up to 150 percent of the federal poverty level. The commenter wrote
that USCIS is required by the injunction to restart the information
collection request clearance process anew for a revised I-912 form that
conforms to the Court's decision. The commenter wrote that because the
version of the Form I-912 published as supporting material to USCIS's
November 14, 2019 NPRM, for which comment periods with a cumulative
total length of slightly more than 60 days are now ending, does not
meet the Court's specifications, USCIS may not move forward with
implementation of this revised I-912 based on the present notice-and-
comment process.''
Response: The comment refers to the effort by USCIS to revise the
USCIS policy guidance on fee waivers. On September 28, 2018, USCIS
published a 60-day notice in the Federal Register requesting comments
on the revised Form I-912 and instructions and posted the documents for
review in docket USCIS-2010-0008 at www.regulations.gov. 83 FR 49120
(Sept. 28, 2018). The revisions to the fee waiver form revised the
evidence USCIS would consider in evaluating inability to pay, required
federal income tax transcripts to demonstrate income, and required use
of the Form I-912 for fee waiver requests. USCIS complied with the
Paperwork Reduction Act and the Office of Information and Regulatory
Affairs, OMB (OIRA) approved the form changes on October 24, 2019.\113\
On October 25, 2019, USCIS published the revised Form I-912 and
instructions, along with corresponding revisions to the USCIS Policy
Manual and a Policy Alert. The revised form and manual took effect on
December 2, 2019.
---------------------------------------------------------------------------

\113\ The approved package is available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201910-1615-006# (last
visited Feb. 17, 2020).
---------------------------------------------------------------------------

DHS did not consider this rulemaking's impact on that policy change
because DHS was proposing comprehensive reforms to fee waivers which
were not certain to occur, and the rulemaking was separate and
independent of the October 25, 2019, form and policy change. USCIS was
losing hundreds of millions of dollars each year to fee waivers and it
decided not to wait for the comprehensive DHS fee rulemaking while it
continued to ``forgo increasing amounts of revenue as more fees are
waived.'' 84 FR 26138 (June 5, 2019). Nonetheless, on December 11,
2019, the revised Form I-912 was preliminarily enjoined, nationwide, by
the U.S. District Court for the Northern District of California. See
Order Granting Pls.' Mot. for Nationwide Prelim. Inj., City of Seattle
v. DHS, 3:19-cv-7151-MMC (N.D. Cal., Dec. 11, 2019). By stipulation of
the parties and as agreed to by the court, that injunction will remain
pending publication of this final rule. The injunction does not require
that USCIS may only revise the Form I-912 in a way that conforms to the
Court's decision. Nonetheless, while this final rule is not affected by
City of Seattle, the decision in that case only requires that the
October 25, 2019 fee waiver policy

[[Page 46879]]

changes required notice and comment rulemaking to effectuate. DHS is
conducting notice and comment rulemaking with this final rule and the
City of Seattle injunction does not prevent USCIS from moving forward
with implementation of the Form I-912 revision in accordance with this
rulemaking.
Comment: Several commenters stated that the proposed rule also
fails to comply with a federal agency's requirements under the
Paperwork Reduction Act by failing to provide the public with a 60-day
opportunity to comment on the collection of information under the
proposal. One commenter states that ``when proposed rule was initially
published on November 14, 2019, it provided 60 days for the public to
submit comments on draft forms and instructions. USCIS then posted no
fewer than 145 such documents on regulations.gov for public review.
Then, on December 9, 2019, published another proposed rule that reduced
the period for public comments on draft forms and instructions to only
45 days. This clear breach of the Paperwork Reduction Act (PRA) leaves
insufficient time for the public to adequately comment on the massive
volume of form changes proposed by the agency. USCIS must therefore
extend the comment period for PRA review by at least another 30 days.''
Another commenter stated that ``while the extension notice of December
9, 2019 extends the public comment period, it simultaneously shortens
it for the related forms, in violation of the Paperwork Reduction
Act.\114\ The extension notice states: 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. The commenter
requests that the public comment period be open for 60 days.
---------------------------------------------------------------------------

\114\ Paperwork Reduction Act of 1995, Public Law 104-13,
Sec. 451(b), 110 Stat. 163 (1995) (codified at 44 U.S.C. 3501 et
seq.)].
---------------------------------------------------------------------------

Response: DHS regrets any erroneous references in the NPRM.
Nevertheless, as the commenters have indicated, DHS published the
proposed revisions to the information collection requirements for
public comment for a cumulative period of more than 60 days. Thus, DHS
has complied with the public comment period requirements of 5 CFR
1320.11 for the information revisions associated with this rule.
Comment: A commenter wrote that the collection of a valid domestic
address for named workers in a Form I-129 petition is duplicative given
that USCIS conducts a background check for named beneficiaries listed
on Form I-129. The commenter also wrote that USCIS ``failed to
articulate in its proposed rule why this new question is necessary.''
Response: DHS disagrees with the comment that this question is
duplicative. Providing a valid domestic address for the beneficiary
helps USCIS to conduct the background check and otherwise ensure the
integrity of the information provided on the Form I-129. In addition,
USCIS will use a beneficiary's U.S. address to notify them if USCIS
denies a request to change status or extend stay.
Comment: A commenter wrote that, ``USCIS [should] adopt a timeline
that allows for a sufficient grace period and does not conflict with
high-volume filing seasons'' when implementing the new forms and
recommended a six-month grace period. The commenter wrote that USCIS
should consider high-volume filing seasons, for which petitioners
prepare months in advance, noting that ``refusing to accept a prior
version of a form during that time could cause undue burden on the
public.''
Response: DHS will not adopt the recommendation to provide a
minimum six-month grace period before the new forms are mandatory for
submission. DHS does not believe that requiring use of the new forms
immediately will cause undue burden on the public. The proposed forms
essentially incorporate the same information as the previous forms, but
the new forms are shorter because they are focused on the specific
nonimmigrant classification. In addition, DHS believes the public has
had sufficient notice of the proposed forms. DHS first published the
NPRM on November 14, 2019, subsequently extended the comment period on
December 9, 2019, and the rule is not effective until 60-days after
publication. USCIS will consider high-volume filing seasons when
establishing the implementation process for these new forms.
Comment: A commenter wrote, ``about the inclusion of E-Verify
questions on each of the new [Forms I-129], even when participation in
E-Verify is not mandated for participation in nonimmigrant program
(sic), as it could be used inappropriately to target employers for
enforcement action.'' The commenter recommended that USCIS either
remove the E-Verify questions from forms where it is not mandated, or
add language to the form instructions to say that ``. . . these
questions are optional and are not outcome determinative, such that if
a petitioner leaves the information blank it will not result in a
rejection.'' The commenter also pointed out a typographical error.
Response: USCIS does not accept the recommendation to remove E-
Verify-related questions on Forms I-129 where participation is not
mandated. Petitioners who choose not to participate in E-Verify are not
required to enroll in the system; only those who are already enrolled
will need to provide E-Verify information. Requiring the petitioner's
name as listed in E-Verify, as well as their E-Verify Company
Identification Number or Client Company Identification Number, if
applicable, protects the interests of U.S. workers by preventing fraud
and abuse of E-Verify and employment eligibility rules. Having this
information on all of the I-129 versions maximizes E-Verify's
reliability and integrity by confirming that certain categories of
employees who are authorized for employment with a specific employer
incident to status are working for the employer specified on the
petition.
USCIS Form Instructions indicate that all questions should be
answered fully and accurately. They also provide direction to write
``N/A'' or ``None'' when a question doesn't apply to the applicant,
petitioner, requestor or beneficiary.
USCIS reviewed all of the new I-129 forms and corrected
typographical errors related to the E-Verify questions.
Comment: A commenter pointed out that on Form I-129H1, ``. . . in
Part 2. Information about this Petition, question 1, Item 1D repeats
Item #1C. It appears it should read `Free Trade, Chile (H-1B1).' '' The
commenter also wrote that they recommended ``. . . that Part 5. Basic
Information About the Proposed Employment and Employer, questions 9 and
10 be struck as they ask for information that is beyond what is
required for eligibility for H-1B status.
Response: USCIS has updated Form I-129H1, Part 1., Item Number 1,
Item 1D. Regarding Part 5., Item Numbers 9 and 10, these questions
relate to the ``experience required for the position'' and ``special
skills'' for the position, both of which are relevant to determining if
the wage level selected on the Labor Condition Application (LCA)
corresponds to the position as described in the petition. Per 20 CFR
655.705(b), while the U.S. Department

[[Page 46880]]

of Labor ``administers the labor condition application process,'' the
U.S. Department of Homeland Security (DHS) ``determines whether the
petition is supported by an LCA which corresponds with the petition.''
Petitioner's responses to these questions provide USCIS with a more
complete picture of the requirements for the proffered position. This
may help to reduce RFEs on this topic, as USCIS officers will have
additional information when initially adjudicating the case.
Comment: A commenter wrote that they appreciated that ``. . .
specific program requirements have been laid out in the instructions .
. .'' for the new Form I-129H2A and Form I-129H2B that ``. . . will be
helpful for newer employers, agents, and attorneys.'' The commenter
objected, however, to the ``. . . additional requirements for each
program that have not been previously required that are either
burdensome or too broad'' and that USCIS could ascertain them ``. . .
through its own systems . . .'' The commenter also indicated that, ``.
. . Part 6. Petitioner and Employer Obligations, question 14, which
requires the H-2A petitioner and each employer to consent to ``allow
Government access'' to the H-2A worksite is overly broad and goes
beyond 8 CFR 214.2(h)(5)(vi) which only requires consent to ``allow
access to the site by DHS officers.''
Response: The data collections included in Form I-129H2A and Form
I-129H2B have a regulatory basis. While they might technically be
ascertainable through USCIS systems, this would result in substantially
greater operational burdens and, hence, greater expense being passed
onto petitioners. It is also reasonable that petitioners should
properly be on record whether the relevant requirements are met.
Regarding the Petitioner and Employer Obligations, Item Number 14,
USCIS has changed the language to ``DHS access.''
Comment: A commenter wrote that the requirement on Form I-129H2B
for the petitioner ``. . . to provide evidence of why substitution is
necessary and that the requested number of workers has not exceeded the
number of workers on the approved temporary labor certification . . .''
could be ``. . . burdensome on the petitioner and delay processing.''
The commenter also suggested that Forms I-129H2A and I-129H2B be
reviewed for consistency, noting that helpful language about what
evidence to provide appeared in one of these forms but not in the
other.
Response: The H-2B Substitution regulation at 8 CFR
214.2(h)(6)(viii) states that to substitute beneficiaries who were
previously approved for consular processing but have not been admitted
with aliens who are currently in the United States, the petitioner
shall file an amended petition with fees at the USCIS Service Center
where the original petition was filed, with a statement explaining why
the substitution is necessary and evidence that the number of
beneficiaries will not exceed the number allocated on the approved
temporary labor certification, such as employment records or other
documentary evidence to establish that the number of visas sought in
the amended petition were not already issued. Thus this requirement is
clearly supported by the regulations.
USCIS has reviewed the forms for consistency and updated Form I-
129H2B to include the appropriate note under Part 3., Item Number 24.
Comment: A commenter wrote that proposed Form I-129MISC ``. . .
would make applications for R nonimmigrant workers less efficient and
more confusing.'' The commenter stated that, ``The current version of
the form is organized and follows a clear structure . . .'' but that
``. . . the proposed revised Form I-129 moves from one topic to
another, not following a logical progression.'' The commenter also
wrote that, ``. . . certain questions are redundant and . . . broaden
the scope of the question needlessly.''
Response: The comment does not specify how the organization fails
to follow the progression of the regulation. Notably, the new Form I-
129MISC structure contains much of the eligibility information in the
main petition. The R Supplement is limited to questions about the
beneficiary's family, the relationship between the foreign and U.S.
organizations, and the attestation, including attestation regarding
secular employment, as required by R-1 regulations. 8 CFR 214.2(r)(8).
Plus, petitioners no longer must search through lengthy instructions
that do not apply to their petition.
Comment: One commenter wrote that on Form I-129MISC, ``Part 1,
Question #10 does not include an option to select ``Not Applicable'' if
a Social Security number is not available.''
Response: USCIS has added an ``(as applicable)'' parenthetical to
the U.S. Social Security Number field on the form. Per USCIS Form
Instructions, all questions should be answered fully and accurately.
Any questions that do not pertain to the applicant, petitioner,
requestor or beneficiary should be answered with ``N/A'' or ``None,''
according to the instructions.
Comment: A commenter noted that, ``Part 2, Question #3 requests
that a petitioner for amended status provide the receipt number of the
petition they seek to amend. However, in Part 3, Question #17, the
petitioner would have to enter the receipt number again. This is
repetitive. There are several bases for classification in which a
previous receipt number would be necessary for adjudication.'' The
commenter ``. . . recommend[ed] that USCIS consolidate and only request
a receipt number once for any basis that would be applicable.
Response: On Form I-129MISC, Part 2 relates to information about
the basis for the filing (new employment, continued employment, change
of status, or amended petition), and, if an amended petition, asks for
the receipt number of the petition being amended. Part 3, on the other
hand, seeks information about the beneficiary, requesting the most
recent petition or application number for the beneficiary. These
requests are not necessarily duplicative as a previous receipt number
does not always mean the filing is an amended petition. Eliminating the
question about the receipt number of the petition to be amended in Part
2 would make matching the amended petition with the original petition
more burdensome.
Comment: A commenter wrote that, ``Part 4, Questions #9 and #10 ask
if the beneficiary has ever been granted or denied the classification
requested. The current version of the form limits the scope of these
questions to the last 7 years. By removing the time limitation on this
question, USCIS is requesting information that may be overly burdensome
for petitioners and beneficiaries to provide, if the information has
been lost over time. Information beyond 7 years is also unnecessary for
USCIS' adjudication, as that time period would necessarily encompass
enough time to demonstrate that a beneficiary who had spent the maximum
5 years in a previous R-1 status had spent the requisite one year
outside the United States to be eligible for readmission.''
Response: USCIS notes that P-1A individual athletes have a 10-year
admission period when your account for their initial and extension
period of stay while other P categories may have their period of stay
extended in one-year increments. 8 CFR 214.2(p)(14). While the R-1
classification does have a 5-year limit, USCIS will count only time
spent physically in the United States in valid R-1 status toward the 5-
year maximum period of stay, and an R-1 may be able to ``recapture''
time when he or she has resided abroad and has been physically present
outside the United States for the immediate prior year. 8 CFR

[[Page 46881]]

214.2(r)(6).\115\ Thus the time the beneficiary may have been in R-1
status in the United States may be longer than the immediately
preceding 7 years in some scenarios. USCIS does not believe the
questions to be overly burdensome since we are not initially requiring
supporting evidence.
---------------------------------------------------------------------------

\115\ See Procedures for Calculating the Maximum Period of Stay
for R-1 Nonimmigrants, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2012/March/R-1_Recapture_%20AFM_Update_3-8-12.pdf.
---------------------------------------------------------------------------

Comment: A commenter pointed out a typographical error in Part 5.,
Question #6 of Form I-129MISC. `` `If the answered `No' . . .' should
be `If you answered `No'.''
Response: USCIS has corrected this typographical error.
Comment: A commenter wrote that, ``R-1 Classification Supplement
Section 1, Question #18 has been revised to provide less context and
detail for this request for information about secular employment.
Specifically, the phrase `[i]f the position is not a religious vocation
. . . has been removed, making the question much broader than the
previous version. This broad question is more difficult for petitioners
to answer and could result in answers that create more confusion for
adjudicators.''
Response: In the R-1 Classification Supplement, Section 1, Item
Number 18, removal of the phrase ``[i]f the position is not a religious
vocation . . .'' aligns the question to the relevant regulatory text.
Specifically, the regulation at 8 CFR 214.2(r)(8)(xi) requires the
prospective employer to attest ``[t]hat the alien will not be engaged
in secular employment,'' without regard to the type of religious worker
position that the beneficiary will hold. As to the commenter's concern
that the revised wording creates a ``much broader'' question that is
more difficult to answer, we note that it remains a yes or no question,
requiring further explanation only if the prospective employer answers
``no'' to the required statement.

R. Statutory and Regulatory Responses

1. General Comments on the Regulatory Impact Analysis
Comment: One commenter cited the APA and Supreme Court precedent,
stating that the asylum fee is such a departure from prior policy that
the agency must provide a ``reasoned analysis for the change.'' The
commenter wrote that the agency provided no evidence, analysis, or
discussion to support its conclusions, and that under the APA and
Executive Orders 12866 and 13563, USCIS failed to identify and evaluate
all potential economic and non-economic costs and ensure that those
costs are outweighed by benefits and that the regulations impose the
least burden to society. The commenter wrote that E.O. 12866 requires
agencies to assess all costs and benefits and should select those
approaches that maximize benefits (including potential economic,
environment, public health and safety), and other disadvantages;
distributive impacts, and equity.
Response: DHS has identified and evaluated potential economic and
non-economic costs as summarized in table 7 of the Executive Orders
12866 and 13563 sections of this rule, table 1 of the Regulatory Impact
Analysis, and in the Small Entity Analysis document. As stated in
multiple places in this final rule, DHS is changing USCIS fees to
recover the costs of administering its adjudication and naturalization
services. DHS is not changing USCIS fees with the intent to deter
requests from low-income immigrants seeking family unity or deterring
requests from any immigrants based on their financial or family
situation. DHS will continue to explore efficiencies that improve USCIS
services and may incorporate corresponding cost savings into future
biennial fee reviews and rulemakings accordingly.
Comment: Multiple commenters generally stated that the RIA does not
accurately analyze the impact of reduced economic activity generated by
immigrants as a result of more arduous immigrant requirements under
this rule. Some commenters requested that USCIS analyze whether reduced
administrative costs as a result of increased fees would be offset by a
reduction in the economic value generated by immigrants due to more
costly fees. Similarly, a commenter wrote that the proposed rule does
not account for the harm posed by increased naturalization fees such as
reduced wages, broken families, and increased vulnerability to domestic
violence.
Response: DHS notes that previous fee increases in 2007, 2010 and
2016 have had no discernible effect on the number of filings that USCIS
received.\116\
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\116\ See RIA, Section M: Fee Waivers.
---------------------------------------------------------------------------

DHS recognizes the contributions that naturalized citizens make to
American society. However, USCIS must fund itself through fees. DHS
does not have any data to establish that these fees, though required,
are a significant impediment to naturalization or economic and social
mobility. As stated in the proposed rule and elsewhere in this final
rule, DHS performs a biennial review of the fees collected by USCIS and
may recommend changes to future fees. DHS reviewed research cited by
commenters as evidence that the cost increases discussed in the rule
would be a barrier to immigration and found no evidence to support the
conclusion that the fee changes would have a quantifiable causal effect
on wages, family cohesion or domestic violence. DHS declines to conduct
further analysis on this issue or make changes in this final rule in
response to this comment.
DHS recognizes the economic and societal value of nonimmigrants,
immigration, and naturalization. DHS agrees that new citizens and
naturalization are of tremendous economic and societal value and
generally agrees with the points made by, and the studies cited by,
commenters. DHS is not adjusting the USCIS fee schedule to impede,
reduce, limit, or preclude naturalization and did not propose to adjust
the USCIS fee schedule to reduce, limit, or preclude immigration in any
way for any specific immigration benefit request, population, industry
or group, including members of the working class.
DHS acknowledges that some individuals will need to save, borrow,
or use a credit card in order to pay fees because they may not receive
a fee waiver. DHS does not know the price elasticity of demand for
immigration benefits, nor does DHS know the level at which the fee
increases become too high for applicants/petitioners to apply. However,
DHS disagrees that the fees will result in the negative effects the
commenters' suggested. DHS believes that immigration to the United
States remains attractive to millions of individuals around the world
and that its benefits continue to outweigh the costs noted by the
commenters. DHS also does not believe that the NPRM is in any way
discriminatory in its application and effect. DHS did not target any
particular group or class of individuals. Therefore, DHS declines to
make changes in this final rule in response to these comments.
Comment: A commenter wrote that the RIA does not consider the costs
to the families and communities of asylum seekers who will need to help
cover fees for indigent individuals.
Response: DHS did not consider the costs to the families and
communities of asylum seekers, who will need assistance with fees for
indigent individuals who are more likely to be asylum seekers. DHS
expects that charging this fee will generate some revenue to offset
adjudication costs but is not aligning with the beneficiary-pays

[[Page 46882]]

principle, as the estimated cost of adjudicating Form I-589 exceeds
$50. DHS recognizes that these families and communities will have to
find a way to pay, whether through their communities, friends, loans,
or credit cards. DHS discusses the impact of the asylum fee and
determines that some applicants may no longer apply for asylum in
Section P, Charge a Fee for Form I-589 Application for Asylum and for
Withholding, of the final RIA. DHS notes that some applicants would be
able to find other means to pay for this application fee, such as
borrowing money or using a credit card. DHS is not able to estimate the
effect of the new $50 fee on asylum applicants who may not be able to
afford the new fee and cannot accurately or reliably predict how many
applicants would no longer apply for asylum as result of the $50 fee.
Comment: Multiple commenters wrote that USCIS failed to
sufficiently analyze the price elasticity or price sensitivity of
naturalization applications, and as a result total agency revenue could
actually decrease due to reduced naturalization applications from
higher fees under the proposed rule. One commenter cited research
demonstrating that subsidizing naturalization fees for low income
individuals increased applications by 41 percent. A commenter wrote
that USCIS argues that the lack of a fee waiver will not affect the
number of requests filed, however research shows that fee waiver
standardization increased applications for low income immigrants. A
commenter wrote that USCIS fails to produce an incremental analysis
considering the difference in money flow between the original situation
and the proposed changes.
Response: DHS acknowledges that one randomized control trial
mentioned by the commenter observed a 41 percent increase in
applications for naturalization amongst immigrants randomly selected to
have their filing fees paid by an outside party. Commenters cited
another study's findings that standardization of the fee waiver
process, and incorporation of the FPG for determining eligibility
resulted in the largest increases in naturalization rates for low-
income immigrants. While DHS acknowledges immigrants facing financial
challenges encounter added difficulty paying filing fees, these studies
highlight the impact of removing fees entirely on many immigrants who
would not have naturalized without full subsidization or waiver, thus
these effects are not informative of price sensitivity in the context
of this rule.
DHS has not omitted data describing the price sensitivity to fees,
rather, the agency has no data describing the myriad complex and
changing unobservable factors that may affect each immigrant's unique
decision to file for a particular immigration benefit. DHS notes that
previous fee increases in 2007, 2010 and 2016 have had no discernible
effect on the number of filings that USCIS received.\117\
---------------------------------------------------------------------------

\117\ See RIA, Section M: Fee Waivers
---------------------------------------------------------------------------

Comment: A commenter wrote that USCIS failed to present an accurate
analysis of increased administrative processing costs under the
proposed rule, wherein ``hundreds of thousands'' of means-tested
applicants will begin submitting fee waiver requests under the
household income basis.
Response: Based on the OIDP survey, as described in the RIA,
approximately 16.36 percent of all fee waiver applications become
ineligible by lowering the income criteria from 150 percent to 125
percent of the FPG. As a result, DHS estimates about 22,940 fewer fee
waiver applications will be eligible for a fee waiver according to the
approval eligibility criterion to limit fee waivers to households with
income at or below 125 percent of FPG. See 8 CFR 106.3. Therefore, DHS
disagrees that USCIS failed to present an accurate analysis of
increased administrative processing costs under the proposed rule.
Comment: A commenter wrote that the RIA suggests that USCIS cannot
reliably predict the number of asylum applicants who would be deterred
by the proposed rule's $50 fee, but then argues it would be a smaller
number without providing any data to back the claim.
Response: As stated in the NPRM RIA and in this Final Rule RIA
(Section P), DHS agrees with the commenter that USCIS cannot reliably
estimate the numbers of asylum applications who may not be able to
afford the $50 fee for Form I-589. DHS does not believe that the new
fee will deter asylum applications, and the commenter provides no data
to support its claim that it will.
2. Methodology Issues
Comment: Some commenters had issue with the timelines used in the
RIA. A commenter wrote that the proposed rule covers a 10-year
implementation period, but USCIS' calculations do not show the impact
of fees on workload over a 10 year period. A commenter wrote that the
RIA uses receipts from June 2016 to May 2017 to make revenue
projections for FY 2019/2020, however USCIS does not explain why this
time frame is used or why it doesn't align with the Federal
government's fiscal quarters.
Response: The calculations in this rule's RIA estimate the annual
amounts of each proposed change in Table 1. In further detail of each
proposed change, transfers, costs, or cost savings are displayed in
relation to the affected population. USCIS then shows the total costs
over 10-years discounted at 3 percent and 7 percent (see RIA Section
2--Total Estimated Transfers and Costs of Regulatory Changes) as
suggested by regulatory in guidance. See Circular A-4, (Sept. 17,
2003).\118\ The preamble of this rule bases receipt and revenue
projection data covering two years due to the biennial fee study. This
study is repeated and analyzed every two years. However, USCIS does not
choose to alter its fee schedule through regulation every two years.
Therefore, the impacts in the RIA cover a longer timeline to estimate
the perpetual impacts of this rule.
---------------------------------------------------------------------------

\118\ Available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf. (Sept. 17, 2003)
(last viewed April 2, 2020).
---------------------------------------------------------------------------

Comment: A commenter provided the following criticism of the
methodologies and data used by USCIS in developing the RIA:
USCIS estimates 1 hour and 10 minutes to complete Form I-
912 when the actual OMB approved burden is 2 hours and 20 minutes.
USCIS states that data on fee waiver requests were not
available due to limitations, but the agency does not explain what
their limitations are.
USCIS used fee waiver data from lockbox facilities in
October 2017 but does not report any data related to the surveys and
provides no insight into why data for just one month was appropriate
for cost projections.
Response: DHS agrees with the commenter that the time burden
estimate utilized in the proposed rule was incorrect. For this final
rule, USCIS has accounted for the new burden places on applicants as
the current time burden for Form I-912 of 1 hour and 10 minutes to 2
hours and 20 minutes under this rule. The cost calculations for the
final rule have been updated accordingly. DHS used data that was
collected from a statistically valid random sample from October 2, 2017
to October 27, 2017 on approved fee waivers. Using a standard
statistical formula based on the average annual fee waiver population,
DHS determined that a random sample size of 384 applications was
necessary to yield statistically significant results with a 95 percent
confidence level and a 5 percent confidence interval. USCIS analyzed

[[Page 46883]]

data on 4,431 approved fee waiver requests, which exceeded the
necessary sample size of 384 for statistical significance. The study of
statistics allows us to apply the results from this statistically valid
random sample to the population of fee waivers resulting in the same
results 95 percent of the time. This data from the survey is in Section
(E) of the Regulatory Impact Analysis and Table 10 of the RIA displays
the overall approvals, denials, and foregone revenue estimates of a 5-
year average. Additionally, DHS has included the raw data of the survey
questions and results in the appendix Office of Intake Production
(OIDP) Fee Waiver Results from October 2, 2017 to October 27, 2017
stand-alone RIA found in the docket of this final rulemaking.
Comment: Similarly, another commenter provided the following
critiques of the methodologies and data used by USCIS in developing the
RIA:
USCIS underestimates the need and subsequent costs that a
number of applicants will have for legal representation in completing
new form requirements as well as opportunity costs of time for HR
specialists and attorneys used in the economic analysis.
The economic analysis showed that services previously
provided without user fees are a transfer from the Federal government
to the applicant, however this is not accurate as tax revenues do not
support the functions of USCIS.
Response: While DHS acknowledges that some attorneys charge higher
fees than those used in the economic analysis, the agency continues the
standard practice of using BLS average occupational earnings estimates.
Similarly, it is acknowledged that some petitioners may incur
additional legal fees. The economic analysis does not describe every
immigrants' situation, rather, DHS presents our best estimates of the
impact of the rule. In addition, form fees that required no change in
time burden, documentation, or biographical information will be a
transfer from current fee-paying applicants and/or petitioners to those
filing for a particular immigration benefit using a form with a revised
form fee. The RIA calculates the new costs and/or cost savings to
applicants/petitioners, from the impact of each policy decision. In
this final rule, each policy justification is included in the RIA
summary table, with the estimated benefits of the provision. Cost
savings and benefits are displayed for both the applicant(s)/
petitioner(s) and the DHS. Once the new fees are established, DHS
calculates the opportunity costs of the time burden required for
completing the applicable impacted forms. If the only change in the
rule to a specific benefit request is to increase the fee, the RIA does
not specifically calculate the total amount of new fees per year that
will be paid for all filings of that particular benefit because those
amounts and the new fee times projected volume are already included in
the tables and text describing the fee calculation model. Finally, DHS
does not include the costs for applicants to hire legal representation
in completing forms because DHS does not require that applicants hire
anyone to assist them in preparing USCIS benefit requests.
Comment: A commenter wrote that USCIS excludes savings and benefits
already realized such as efficiencies gained through investments in IT,
closure of international offices, and lower refugee intake. A commenter
wrote that the RIA fails to present data and evidence on a number of
recent changes designed to reduce costs including limiting the
availability of printed study materials, no longer providing printed N-
400 forms, centralizing all customer inquiries and complaints on a call
center, and introducing electronic filing for many benefits.
Response: DHS acknowledges that there are these costs savings. The
RIA calculates cost savings and efficiencies to applicants/petitioners
that are built into the ABC model. Despite the money saved it still
leads USCIS to these fee changes. In this final rule, each policy
justification is included in the RIA summary table, with the estimated
benefits of the provision. Cost savings and benefits are displayed for
both the applicant(s)/petitioner(s) and the DHS. Once the new fees are
established, DHS calculates the opportunity costs of the time burden
required for completing the applicable impacted forms. If the only
change in the rule to a specific benefit request is to increase the
fee, the RIA does not specifically calculate the total amount of new
fees per year that will be paid for all filings of that particular
benefit because those amounts and the new fee times projected volume
are already included in the tables and text describing the fee
calculation model.
3. Other Comments on the Cost-Benefit Analysis
Comment: A commenter wrote that the proposed rule does not consider
less costly alternatives to raising fees such as reducing operating
costs, drawing on carryover funds, or seeking discretionary
appropriations from Congress. The commenter also suggested that USCIS
should analyze the impacts of slowly increasing the proposed fees on a
year by year basis until reaching the desired level in order to avoid
disruption. Another commenter also said USCIS fails to consider less
burdensome alternatives.
Response: As mentioned in response to a previous comment, for FY
2019 and FY 2020, Congress appropriated $10 million for the Citizenship
and Integration Grant Program. See Consolidated Appropriations Act,
2019, Public Law 116-6, div. A, tit. IV (Feb. 15, 2019) and
Consolidated Appropriations Act, 2020, Public Law 116-93, div. D, tit.
IV (Dec. 20, 2020). Other than that, USCIS receives no appropriations
to offset the cost of adjudicating immigration benefit requests.\119\
As a consequence of this funding structure, taxpayers do not bear any
costs related to the IEFA and bear only a nominal burden to fund USCIS.
However, in the event appropriations that would materially change IEFA
fees are provided, then DHS could pursue a rulemaking to adjust fees
appropriately.
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\119\ Congress provides USCIS with appropriations for the E-
Verify program.
---------------------------------------------------------------------------

DHS considered alternatives such as using existing carryover funds
instead of adjusting fees. However, DHS determined that USCIS has
insufficient carryover funds to obviate the need to adjust fees. As
stated in the Supporting Documentation accompanying this rule, USCIS
projected that, if DHS did not adjust fees, USCIS would exhaust all of
its existing carryover funds during the FY 2019/2020 biennium, reaching
a carryover balance of -$1.069 billion at the end of FY 2020. USCIS
cannot have a negative carryover balance, as a negative carryover
balance indicates that USCIS has incurred costs greater than its
available financial resources. USCIS must maintain a positive carryover
balance to ensure that USCIS is able meet its financial obligations at
times when USCIS operating costs temporarily exceed its revenues.
DHS does not believe that gradually adjusting the USCIS fee
schedule over multiple years represents a reasonable alternative to
this final rule, as such an approach would ensure that USCIS does not
recover full cost and is not able to fully fund its operational
requirements while the new fees are phased-in. DHS declines to make
changes in this final rule in response to these comments.
Comment: A commenter wrote that the cost analysis provided in the
NPRM was ``incomplete and arbitrary'' and rejected the NPRM's
``allegation'' that the agency's operations are conducted efficiently.
The commenter cited Congressional testimony and an article from the
American Immigration Lawyers Association that discussed

[[Page 46884]]

USCIS' decreased cost-effectiveness and changes to operational
procedures that have increased costs without tangible improvements to
adjudication quality.
Response: USCIS analyzed the impacts of this rule using the best
available data at the time the analysis was written in an objective
manner. USCIS's goal in the analysis was to produce an objective
assessment of the cost, benefits, and transfers associated with this
rule as required by Executive Orders 12866 and 13563. DHS believes
these operational changes are necessary to ensure that applicants
seeking immigration benefits are properly vetted and eligible for the
benefit for which they have applied.
4. Impacts on Lower-Income Individuals and Families
Comment: One commenter cited research from the Kaiser Family
Foundation, the Urban Institute and the Foundation for Child
Development, demonstrating that even though U.S. citizen children with
an immigrant parent are more likely to live in families with a full-
time worker, such families still experience economic hardships that
carry adverse health and developmental outcomes for children. The
commenter cited research from various other sources documenting the
impact of economic hardships and stated that the proposal would
exacerbate such hardships. The commenter wrote that changes to the fee
waiver program would discourage low-income families from applying for
needed benefits and may lead to family separation, an outcome that
would carry profound negative impacts on child health and well-being.
The commenter also said that ``decades of research'' demonstrates that
family stability supports early childhood health and development and
wrote that the fee increases making naturalization less accessible for
low-income immigrants would yield poor health outcomes among children.
A commenter addressed the proposed rule's potential impact on health
care, including forgone medical care, increased detrimental health
conditions, and increased costs to the health care system. The
commenter suggested there would be cost increases for State Medicaid
programs and urged USCIS to fully analyze and explain such costs.
Response: DHS recognizes that the fee increases may create an
economic hardship for some families. Furthermore, DHS acknowledges the
studies and data cited suggesting that many families struggle to afford
healthcare and connecting such financial risks to adverse health and
developmental outcomes in children. However, collectively these studies
suggest that the incomes of some immigrant families may result in
adverse outcomes, rather than that present USCIS fees have caused such
outcomes. The comments do not indicate that net costs of the final rule
would be improved by shifting the costs of certain benefit requests to
other requestors.
5. Impacts on Immigrant Populations in Distinct Geographic Areas
Comments:
Citing economic conditions in the State of California,
including information about earnings, the State's high poverty rate,
and the increasing costs of housing, commenters underscore their
opposition to all aspects of the proposed rule that would act as a
barrier between low-income immigrants and benefits for which they
qualify.
One million individuals would be adversely impacted by the
proposed rule in Los Angeles County. There are 1.5 million immigrants
in Los Angeles and the proposed rule would impede their ability to
apply for, or renew, immigration benefits allowing them to work, attend
school, and access critical community services.
The immigrant community would have to choose between using
their income to provide for their families or applying for immigration
benefits for which they qualify.
The proposal would make it nearly impossible for more than
50,000 low-income non-citizens in San Francisco to seek or renew
immigration benefits.
Individuals in full-time, minimum wage jobs would need to
dedicate a full month's salary towards green card applications and many
immigrants earn even less and may not be able to afford immigration
benefits at all.
Alameda county is the fourth most diverse county in the
nation with more than half a million immigrants, and that 90,000 adults
eligible for naturalization in the county would be faced with
insurmountable barriers in securing their status, keeping communities
together, and participating fully in civic life. The proposal would
exacerbate existing socio-economic and health disparities in San
Joaquin Valley in California which suffers from socio-economic and
health disparities, including the fact that over half of the area's
residents are enrolled in Medicaid and nearly 20 percent use SNAP
benefits and more than 40 percent of children are living with at least
one foreign-born parent.
The American Immigration Council found 357,652 Minnesota
residents (or 6.6 percent of the State's total population) were U.S.-
born Americans with at least one immigrant parent, and that ``nearly
half'' of all the immigrants in Minnesota were naturalized citizens.
The rule would have a disproportionately negative impact on low-income
and vulnerable immigrants and would limit access to essential
immigration benefits to the wealthy.
Response: This rule in no way is intended to reduce, limit, or
preclude any specific immigration benefit request from any population,
industry, or group. DHS acknowledges that individuals earning the
federal minimum wage may need to use an entire paycheck to pay the
filing fee for Form I-485. While studies indicate that some lawful
immigrants who have not naturalized cite administrative and financial
barriers as a reason for not naturalizing, this alone does not
establish that previous fee levels were prohibitive. Similarly,
financial support provided by communities to local immigrants does not
establish that these immigrants would be unable to afford fees set by
this rule. None of the studies cited by commenters conclude that the
rule would explicitly preclude access to any specific immigration
benefit request, population, industry, or group. USCIS must fund its
operations from fees regardless of state and regional economic
conditions, the costs of housing, household earnings, and poverty. This
final rule provides for some fee waivers and does not preclude
individuals from receiving public benefits or pursuing higher-paying
opportunities for work in more affordable communities.
6. Immigrants' Access to Legal and Supportive Services
Comment: One commenter wrote that workshops run by non-profit
immigration legal service providers are ``the most efficient model'' to
help vulnerable populations seek immigration relief and wrote that the
proposed changes to the fee waiver forms would make it harder for these
providers to complete applications in the workshop setting. The
commenter also said the proposed rule would ``decrease the resources
practitioners can dedicate to actual legal representation'' due to the
increased burden associated with generating Forms I-912 that are
already denied at a high rate, and without cause, by USCIS. One
commenter said their organization, and other organizations like Kids in
Need of Defense, provide social services and legal assistance to
unaccompanied children, and wrote that if organizations that provide
such

[[Page 46885]]

services pro bono ``must find ways to subsidize unreasonable fees,''
they may have to reduce the number of children they serve. Another
commenter that provides services to survivors of gender-based violence
said if their organization must divert resources towards fundraising
for application fees it may be unable to serve the same volume of
clients.
Response: DHS recognizes the challenges that gender-based violence
survivors face when fleeing from the violence of their abusers. In
addition, there continues to be no fees for Form I-914 or I-918 for
applications for T or U non-immigrant status. DHS believes that these
fee exemptions and waivers mitigate concerns that other provisions of
this final rule may harm victims of abuse and domestic violence. The
RIA calculates the new costs and/or cost savings to applicants/
petitioners from the impact of each policy decision. In this final
rule, each policy justification is included in the RIA summary table,
with the estimated benefits of the provision. Cost savings and benefits
are displayed for both the applicant(s)/petitioner(s) and the DHS.
DHS does not include the costs for applicants to hire legal
representation in completing forms because DHS does not require that
applicants hire anyone to assist them in preparing USCIS benefit
requests. Similarly, DHS recognizes comments concerning individuals and
community organizations that choose to donate valuable assistance to
applicants, but DHS finds no evidence that the rule prevents
organizations from choosing to continue providing a level of
assistance. DHS declines to make changes in this final rule in response
to these comments.
7. Impacts on Students From Low Income Families
Comment: One commenter stated the proposed rule would have ``far-
reaching effects'' on employers, international students, H-1B
nonimmigrants, L-1 nonimmigrants, EB-5 investors, DACA recipients,
asylum seekers, and those seeking naturalization, and provided a
``visual representation'' of the proposed fee schedule increases that
shows the average increase will be ``far greater'' than the 21 percent
average increase cited in the proposal.
Response: The commenter does not provide details or explanations of
the far-reaching impacts that it estimates will result from an increase
in USCIS immigration benefit request fees that DHS can address in this
final rule short of abandoning the rule altogether. When DHS increased
USCIS fees in 2007, 2010, and 2016 there were no far reaching impacts
on the classifications and applicants that the comment mentions, aside
from, as discussed elsewhere in this final rule, a large increase in
the number of fee waivers granted to naturalization applicants since
2010. DHS is increasing the fees that USCIS charges for immigration
adjudication and naturalization services to recover the costs of
running its programs. DHS can readjust the fees in its next fee
rulemaking that follows its next biennial fee review if necessary.
Still, in this final rule, DHS is addressing the issues that the
commenter touches on by expanding fee waivers and exemptions from what
was proposed, not charging a DACA renewal fee, and not transferring any
fee revenue to ICE.
Comment: One commenter cited research from the Community College
Research Center at Columbia University demonstrating that more than a
third of community college students come from families with incomes
less than $20,000 per year, and research from the Migration Policy
Institute showing immigrants and their children make up nearly a third
of community colleges' student population. The commenter said
immigrant-origin students at community colleges face unique challenges,
and cited research demonstrating that such students are more likely to
apply for financial aid, are typically ``debt inverse,'' and cover most
of their own educational expenses. The commenter said the proposed fee
increases and elimination of fee waivers will prove ``punishing'' for
hard-working, low-income immigrant students by denying them
opportunities to adjust their status, pursue citizenship, and apply for
DACA renewal.
A commenter said more than 600 Latina girls participate in one of
its programs with a 99 percent high school graduation rate and wrote
that the prohibitive costs for immigration benefits would hinder this
success since many of these participants work full time while attending
school. Another commenter said the proposal would generate additional
cost burdens for economically disadvantaged students and their
families, placing ``the dream of completing a degree'' out of reach for
many students. The commenter also wrote that 46 percent of the Latino
population aged 18 and over in its area were born outside the United
States, while only 4 percent of Latinos under age 18 were born outside
the United States. The commenter stated this statistic meant that the
proposal would have a strong negative effect on immigrant families
already struggling to support their college-age children.
Response: DHS acknowledges the studies and statistics presented by
commenters demonstrating that paying for college is a significant
challenge for many students, more so for students of lower income.
These studies also show that community college and student loans are
among the existing market-oriented solutions available to mitigate the
cost burden of pursuing higher education. DHS is changing USCIS fees to
recover the costs of administering its adjudication and naturalization
services. DHS is not changing USCIS fees with the intent to deter
requests from low-income immigrants seeking to reunite with family or
based on race, financial, or family situation.
8. Impacts on Victimized Groups and Other Vulnerable Populations
Comment: A commenter suggested that the costs associated with the
proposed rule vastly outweighed any benefits of the proposed rule and
said DHS had not attempted to quantify the cost associated with being
unable to receive protections under a winning asylum claim. The
commenter said the proposal did not offer any evidence that a $50 fee
for asylum applications would deter ``frivolous filings'' and wrote
that DHS' goal in promulgating the proposal was simply to reduce the
number of people filing asylum claims. The commenter also said the
introduction of a $490 fee for employment authorization would
negatively impact asylum seekers and the ``overstretched''
organizations that assist asylum seekers.
Response: DHS does not believe that establishing an asylum
application fee of $50 unduly burdens or harms any applicants. DHS
carefully assessed the costs associated with the adjudication of asylum
applications and other types of immigration benefits and concluded that
the $50 fee for asylum applications is warranted. The approximate cost
of adjudicating an asylum application is $366, and the $50 fee is well
below the full cost of adjudicating the application. Moreover, the
asylum application fee is in line with international treaty obligations
under the 1951 Refugee Convention, as incorporated by reference in the
1967 Refugee Protocol, and domestic law.
DHS recognizes the economic challenges faced by asylum seekers.
However, DHS does not believe that charging asylum seekers for a work
authorization application will prevent them from obtaining legal
counsel. DHS does not believe that the EAD fee is unduly burdensome for
asylum seekers.

[[Page 46886]]

Comment: Many commenters wrote that immigrants are particularly
vulnerable to violence or abuse, and cited research from the Journal of
Interpersonal Violence demonstrating that immigrant women are more
likely than U.S. born women to suffer violence or death from intimate
partners. The commenters wrote that this problem was especially acute
among Asian and Pacific Islander populations, citing research from the
Asian Pacific Institute on Gender-Based Violence. The commenters wrote
that the proposed fee schedule increases would reinforce abusers'
ability to use immigration status and financial circumstances as tools
to abuse victims, citing research from various sources documenting the
tactics used and the frequency of such abuse. The commenters said it
was ``crucial'' for immigrant survivors of abuse to access immigration
relief in order to ensure they can ``seek and find safety.'' One
commenter said the proposal would make it harder for victims of abuse
to apply for immigration relief independently of their abusers and said
the proposed elimination of fee waivers was ``frustrating the intent of
Congress'' to enable victims to escape ``unhealthy power dynamics.'' A
commenter wrote that the proposal to limit the availability of fee
waivers and increase fees would negatively impact survivors of domestic
violence because the changes would deprive this vulnerable population
of the opportunity to pursue immigration protections that Congress
specifically provided for them.
Response: In this final rule, VAWA self-petitions, applications for
T nonimmigrant status application, petitions for U nonimmigrant status
and applications for VAWA cancellation or suspension of deportation are
fee exempt, and fee waivers will remain available for all ancillary
forms associated with those categories. DHS believes that these fee
exemptions and waivers mitigate concerns that other provisions of this
final rule may harm victims of abuse and domestic violence. DHS
declines to make changes in this final rule in response to these
comments.
Comment: One commenter wrote that the proposal would
disproportionately impact women, children, and older adults because
these populations often depend on means-tested public benefits or
familial support due to their inability to find work. Another commenter
cited research from various sources documenting the numbers of U.S.
born children living with an undocumented family member and the fact
that many of these children are born to DACA-eligible parents. The
commenter described the consequences of children living with an
undocumented parent, including the fear of being separated from their
families and higher rates of post-traumatic stress disorder or similar
mental health problems. The commenter cited research from several
sources demonstrating how U.S. born children of undocumented parents
stand to benefit when their parents achieve legal status. The commenter
said the proposal would make it harder for undocumented parents to
achieve adjustment of status and wrote that their children and families
would be harmed by the family's reduction of disposable income due to
the fee increases.
Response: DHS is changing USCIS fees to recover the costs of
administering its adjudication and naturalization services. DHS is not
changing USCIS fees with the intent to deter requests from low-income
immigrants seeking family unity or deterring requests from any
immigrants based on their race, financial, or family situation. While
one commenter shared survey results indicating many undocumented
immigrants are eligible to adjust their status, this alone does not
suggest this rule would preclude them from doing so. DHS recognizes
such individuals will consider many factors, including future earnings
and costs, before deciding if, how and when to adjust their status. DHS
appreciates and acknowledges all of the positive contributions of
immigrants to the United States.
Comment: Some commenters cited data from a variety of sources to
underscore their comment that the proposal would create barriers that
disproportionately harm low-income immigrant women. The research cited
by the commenters demonstrated that immigrant women are at a higher
risk of economic insecurity due to pay disparities and other forms of
discrimination, that domestic violence carries severe economic
consequences including jeopardizing women's job prospects, that
immigrant women are vulnerable to abuse from employers, and that women
take on a disproportionate share of caregiving responsibilities. The
commenters said these factors would make it more difficult for
immigrant women to account for the ``onerous cost increases'' in the
proposed rule and would be deprived of access to immigration benefits
at a higher rate than males. Another commenter cited research from the
National Women's Law Center demonstrating that Latinas make $0.54 cents
for every dollar earned by a white, non-Hispanic male, and have less
resources to spend on necessities despite the fact that Latinas are
``breadwinners'' in more than 3 million households. The commenter wrote
that the proposed fee increases and elimination of fee waivers would
make it less likely that Latinas could become U.S. citizens.
Response: DHS acknowledges the comments about Latina women, but DHS
is not adjusting its fees with a planned effect on any particular group
or class of individuals. This rule adjusts USCIS' fee schedule to
recover its cost. With limited exceptions as noted in the NPRM and this
final rule, DHS establishes its fees at the level estimated to
represent the full cost of providing adjudication and naturalization
services, including the cost of relevant overhead and similar services
provided at no or reduced charge to asylum applicants or other
immigrants. This is consistent with DHS's legal authorities. See INA
section 286(m), 8 U.S.C. 1356(m).
As stated previously, the USCIS fee changes in 2007, 2010 and 2016
had no effect on the number of benefit requests received.\120\ The
commenters simply assert that the fees are too high for certain
potential benefit request filers without providing data to support
their assertions. DHS has no way to effectively determine how these new
fees will affect anyone, but DHS believes that benefit request filings
will not decrease substantially.
---------------------------------------------------------------------------

\120\ See RIA, Section M: Fee Waivers.
---------------------------------------------------------------------------

Comment: Some commenters wrote that survivors of violence may
pursue immigration benefits through non-humanitarian channels and would
no longer have access to fee waivers under the proposed rule. The
commenters said the elimination of fee waivers, coupled with the
increased fees for naturalization, would force LPR survivors to choose
between providing basic necessities for their families and pursuing
citizenship.\121\ A commenter said the heightened standards for fee
waiver eligibility, combined with increased fees for naturalization or
adjustment of status, would cause irreparable harm to survivors of
gender-based violence. The commenter said that access to immigration
relief and regularization of immigration status increases employment
opportunities and decreases vulnerability to continued abuse for
survivors, and that survivors should not have to choose between
pursuing citizenship and

[[Page 46887]]

acquiring food and shelter for their families.
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\121\ National Women's Law Center; California Partnership to End
Domestic Violence; Illinois Coalition Against Domestic Violence;
National Partnership for New Americans; Texas RioGrande Legal Aid,
Inc.
---------------------------------------------------------------------------

Response: DHS recognizes the challenges that gender-based violence
survivors face when fleeing from the violence of their abusers. Victims
of abuse that file a VAWA self-petition, an application T nonimmigrant
status or petition for U nonimmigrant status, or an application for
VAWA cancellation or suspension of deportation are fee exempt, and fee
waivers remain available for filing all ancillary forms associated with
those categories. DHS proposed adjustments to USCIS' fee schedule to
ensure full cost recovery. DHS did not target any particular group or
class of individuals. With limited exceptions as noted in the NPRM and
this final rule, DHS establishes its fees at the level estimated to
represent the full cost of providing adjudication and naturalization
services.
Comment: Another commenter wrote that removing the financial
hardship grounds for fee waivers ``overlooks'' the financial challenges
survivors of violence face, including ruined credit scores, high levels
of debt, relocation costs, medical bills from injuries, and attorney
and court costs. The commenter also said the heightened documentation
requirements, including the time-consuming process of obtaining IRS
documents, would negatively impact survivors because they often need to
move quickly to meet deadlines and avoid delays in filing that would
harm the merits of their applications in adjudication. The commenter
wrote that the proposed rule falls short of the ``any credible
evidence'' standard Congress mandated for humanitarian-based benefit
requests by ``impermissibly requiring specific types of evidence,''
such as IRS documentation.
Response: To obtain a fee waiver, an applicant must demonstrate
that he or she is at or below 125 percent of the FPG, and submit the
form along with the information and evidence available in order to
establish eligibility. The applicant need only provide sufficient
information to establish why the documentation is not available and not
that it is unavailable directly or indirectly as a result of the
victimization. The form provides space for explanations and attachments
are accepted, but a separate declaration is unnecessary. Although not
required by statute, USCIS has provided flexibilities in the
instructions for the VAWA, T, and U populations, permitting them to
submit information regarding their inability to obtain documentation on
their income with their fee waiver request. DHS will presume that the
inability of this group of applicants to submit certain evidence is the
result of the victimization and abuse and not require proof of a nexus
between victimization and the inability to pay, but the request must
demonstrate inability to pay to the extent necessary for USCIS to grant
a discretionary fee waiver. All applicants for a fee waiver are subject
to the evidence requirements as provided in the revised form
instructions, which include more flexible rules with respect to the
groups these comments mention. If individuals are unable to obtain
documents without risking further abuse, they can explain why they are
unable to obtain such documentation and submit other evidence to
demonstrate their eligibility. Obtaining information from the IRS in
transcripts, a W-2, or proof of non-filing, if applicable, is
sufficient documentation to establish the necessary income or no
income.
Comment: Several comments were submitted about LGBTQ asylum seekers
and transgender applicants. These comments are summarized as follows:
LGBTQ people suffer significant economic hardships, have
past medical conditions and traumas, language barriers that make it
more difficult to find housing and employment, difficulty finding legal
services, and other challenges.
The proposal would disproportionately impact transgender
people because they are more likely to be indigent and are frequently
seeking asylum as they seek to escape ``extraordinary levels of
violence and persecution.''
Violence and persecution towards transgender people was
well-documented in reports and analyses from the U.S. Department of
State and various other sources.
LGBTQ asylum seekers face dangers in their countries of
origin which do not protect them from violence and oppression.
According to the United Nations High Commissioner for
Refugees, 88 percent of LGBTQ asylum seekers and refugees fleeing
persecution from the Northern Triangle have faced sexual or gender-
based violence in their home country.
LGBTQ and HIV-positive individuals sometimes seek asylum
in the United States as a result of persecution by their own families
and communities and often cannot rely on family or community networks
in the United States for financial support and therefore require the
United States to intervene.
A commenter that serves the LGBT community, survivors of
misogyny, homophobia, transphobia, family rejection, and gang violence
said the proposed fee increases would be especially burdensome for the
populations it serves and increase filing fees for its clients by
$22,700 annually.
The proposal would further victimize and isolate LGBTQ
refugees seeking asylum and many older LGBTQ people who have lived in
the U.S. for many years.
LGBTQ, women, and minors would be ``hardest hit'' by the
proposed fee increases given the pervasive nature of gender inequity
and prejudice against LGBTQ populations.
Response: DHS acknowledges that asylum applicants face challenges.
DHS is not adjusting the USCIS fee schedule to reduce, limit, or
preclude any individuals or groups of individuals from requesting
asylum or seeking any other type of immigration benefit and does not
intend to discourage meritorious asylum claims or unduly burden any
applicant or group of applicants. More broadly, DHS is adjusting the
USCIS fee schedule to recover the full cost of providing immigration
adjudication and naturalization services (with some exceptions, as
stated earlier). However, in recognition of the circumstances
particular to asylum applicants, DHS is not aligning the fee with the
beneficiary-pays principle and does not intend to recover the full cost
of adjudicating Form I-589 asylum applications. Instead, DHS is
establishing a $50 fee for Form I-589 even though the estimated
adjudication costs exceed $50. DHS has determined that the only
exception to the fee should apply to unaccompanied alien children in
removal proceedings who file Form I-589 with USCIS. DHS does not
believe that it is reasonable or appropriate to make additional
exceptions to the fee, particularly on the basis of factors tied to
underlying asylum claims.
DHS expects that charging a $50 fee to asylum applicants except for
the narrow group of unaccompanied alien children will generate some
revenue to offset adjudication costs. With respect to charging a fee to
initial Form I-765 EAD applicants with pending asylum applications, DHS
will be able to keep the fee for all fee-paying EAD applicants lower.
Asylum applicants will pay no more and no less than any other EAD
applicant (except for those who are eligible for a fee waiver) for the
same service.
DHS is acting in compliance with sections 208(d)(3) of the INA,
which provides that, ``[n]othing in this paragraph shall be construed
to require the Attorney General to charge fees for adjudication
services provided to

[[Page 46888]]

asylum applicants, or to limit the authority of the Attorney General to
set adjudication and naturalization fees in accordance with section
286(m).'' DHS believes that charging asylum applicants for asylum
applications and EADs does not impose an unreasonable burden on asylum
seekers.
Comment: One commenter wrote that foreign national students
represent the majority of science, technology, engineering and
mathematics (STEM) graduates from master's degree and Ph.D. programs,
and that these students help fill the demand for ``high-level technical
talent,'' permit U.S. universities to sustain competitive STEM
programs, and help cement America's role as a leader in technological
innovation. The commenter discussed the demand for highly skilled
technical workers and cited research showing that there were 3.3
million STEM job openings in 2016, but only 568,000 students graduating
with STEM degrees. The commenter said that employers of all sizes, and
across industries, faced challenges in securing high-skilled, available
candidates, and that issues relating to ``employment immigration'' were
of utmost importance to the technology industry. The commenter
expressed their support for comprehensive immigration reform that meets
employers' demands in a globally competitive and digital economy.
Another commenter said the proposal would accelerate the loss of U.S.
information technology jobs. The commenter said access to information
technology workers on H-1B nonimmigrant workers was critical for the
industry and wrote that the proposal would make U.S.-based information
technology projects ``less economically viable.'' The commenter said
proposed fee increases would make it more difficult to create and
retain information technology jobs in the U.S.
Response: DHS recognizes that immigrants and international students
make significant contributions to the U.S. technology industry. The
commenter's suggestion that high demand by globally competitive firms
for high-skilled occupations would be affected by the fee changes is
not clearly explained or supported with evidence.
9. Impacts to Industries That Use H-2A Workers
Comment: A commenter provided statistics detailing the economic
condition of farmworkers in the U.S. and said many of its farmworker
clients struggle to meet their families' financial needs despite
working long hours. The commenter cited figures from the Department of
Labor (DOL) showing that farmworkers' average household income ranged
from $20,000 to $24,999 per year, and that 33 percent of farmworkers
have family incomes below 100 percent of FPG. The commenter said
farmworkers' wages are low ``through no fault of their own'' and wrote
that farm work is seasonal by nature, a fact that causes periods of
unemployment and fluctuating incomes throughout the year. The commenter
drew upon its experience serving farmworker clients in remarking that
low-wage farm work should not indicate an immigrant's inability to be
self-sufficient. The commenter also said a majority of its clients use
fee waivers or other forms of financial assistance to pay for
applications and wrote that the combination of fee increases and the
elimination of fee waivers would mean that its communities will be hard
hit.
Response: The commenters do not offer evidence to support their
claims that the new fees will result in the negative effects suggested.
Seasonal farmworkers employed as H-2A workers are not required to pay
any fees or expenses for recruitment, travel, or USCIS petitions, so it
is assumed that the immigrant workers that the commenter is referencing
immigrated to the U.S. as beneficiaries of a petition for a family
member. In that case, the immigrant will be subject to an affidavit of
support from a family member who must support them at an income above
125 percent of FPG. If the farmworker is a TPS registrant, then they
may request a fee waiver.
DHS is changing USCIS fees to recover the costs of administering
its adjudication and naturalization services. DHS is not changing USCIS
fees with intent or effect of deterring requests from low-income
immigrants seeking family unity or deterring requests from any
immigrants based on their financial or family situation.
Comment: Some commenters opposed the proposed rule increasing
burdens on employers participating in the H-2A program. One commenter
wrote that farmworkers help sustain the $47 billion agriculture
industry and that immigrants have supplied the industry with a needed
workforce. One commenter stated its members need H-2A workers because
there are no domestic workers willing to perform jobs its members need.
The commenter wrote that the proposal would diminish employers' use of
the H-2A program, an outcome that the commenter also wrote would lead
to the elimination of jobs in certain sectors, slowed economic growth,
and reduced national security due to a less secure food supply. Another
commenter said the proposal would make it cost prohibitive for small
farms and ranchers to remain in production and suggested that the loss
of agricultural production was a national security concern. One
commenter suggested that the proposal, in conjunction with Policy Memo
PM-602-0176, would increase ranchers costs by 274 percent (rather than
87 percent). The commenter wrote that since agricultural producers are
price takers, they are unable to pass these extra costs onto consumers
and would see their margins depleted. The commenter said it would
support a flat application fee with an additional add-on for each
beneficiary (such as $425 per application and $10 per beneficiary).
Other commenters stated that the proposed increase would hurt
agriculture businesses because they cannot pass down additional costs
to consumers. One commenter stated low-wage H-2A agricultural workers
would have their fees increased by four times the amount of H-1B
workers, who are more likely to be able to afford the proposed
increased, which highlights the ``deeply flawed'' perspective that
those workers that serve as the backbone of our agricultural industry
are less necessary to the U.S. economy. A commenter wrote these
increased fees could lead to decreased participation in the H-2A
program. A commenter indicated that the proposed increase of H-2A
filing fees would burden the livestock industry, substantially and
disproportionately harming small businesses.
Response: DHS understands the need for nonimmigrant workers to meet
seasonal demands in agriculture in the United States and is sympathetic
to the costs for agricultural employers involved in doing so. With that
in mind, DHS notes, preliminarily, that the current fee for Form I-129
is $460, and DHS is imposing a fee for new Forms I-129H2A of $415 for
petitions for unnamed workers--an actual reduction in the filing fee
from the current $460. We note that the filing fee for named H-2A
workers, however, will be increasing from $460 to $850 per petition,
with a maximum of 25 named workers per each H-2A petition. The change
in these filing fees, as provided in this final rule, is consistent
with the recommendation of the DHS Office of the Inspector General
(OIG) of March 6, 2017.\122\ That report reviewed whether the fee
structure associated with the filing of

[[Page 46889]]

H-2 petitions is equitable and effective, and recommended separate fees
for petitions with named workers, which, due to the need to verify
eligibility of individually named workers, is more costly to USCIS than
the costs associated with adjudicating petitions filed on behalf of
unnamed workers.\123\ Consistent with the OIG's recommendation, USCIS
conducted a study to address the inequities identified in the OIG
report, and, based on its study, USCIS determined that the filing fees
in this final rule reflect the relative costs to USCIS in processing
these two different types of H-2A petitions. USCIS also notes that
limiting the number of beneficiaries in an H-2A petition with named
workers to a maximum of 25 is intended not only to make the processing
of such petitions more efficient, but to provide better data on the
actual costs of adjudicating various nonimmigrant classifications,
thereby permitting USCIS to refine its fee calculations in the future
to better reflect relative costs.
---------------------------------------------------------------------------

\122\ DHS OIG, H-2 Petition Fee Structure Is Inequitable and
Contributes to Processing Errors (Mar. 6, 2017), available at
www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-42-Mar17.pdf.
\123\ DHS OIG, H-2 Petition Fee Structure Is Inequitable and
Contributes to Processing Errors (Mar. 6, 2017), available at
https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-42-Mar17.pdf.
---------------------------------------------------------------------------

10. Effects on Other Federal Agencies
Many commenters wrote about their predictions of the problems that
the fee rule would cause other Federal agencies and their employee.
Those commenters wrote that the new USCIS fees would result in the
following:
Would place an unnecessary burden on the IRS by requiring
fee waiver applicants to provide IRS documentation to demonstrate their
eligibility.
Would require IRS verification and did not consider
whether the IRS was prepared to handle a substantial increase in
requests for documents.
The increases to employment authorization application fees
may place vulnerable workers in exploitative arrangements which would
make DOL incur increased burden for enforcing federal workplace laws.
Increased immigrants' fear of government officials would
hamper DOL workplace investigations and enforcement.
Would cause the IRS to lose income revenue from a
reduction in asylum applications and would need to dedicate more
resources to investigations of tax liability for unauthorized
employment.
DOL would need to investigate more incidences of wage
theft and unsafe working conditions because many asylum seekers would
be forced into the unauthorized workforce due to their inability to
afford work authorization fees.
Response: With regard to the documentation required from the IRS
for fee waivers, all other Federal agencies, including the Department
of the Treasury and Department of Labor, reviewed the NPRM through the
interagency review process and provided no objections, thus DHS
believes that the IRS and DOL can handle any additional workload
arising from this rule.

IV. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)

\124\ See FY 2019/2020 Immigration Examinations Fee Account Fee
Review Supporting Documentation with Addendum, which is part of the
docket for this final rule. DHS revised the volumes to exclude DACA
and change fee-paying assumptions for Forms N-400, N-600, and N-
600K, as discussed later in this preamble.
---------------------------------------------------------------------------

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available alternatives, and if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This rulemaking has
been designated an ``economically significant regulatory action'' under
section 3(f)(1) of E.O. 12866. Accordingly, the rule has been reviewed
by the Office of Management and Budget (OMB). E.O. 13771 directs
agencies to reduce regulation and control regulatory costs. Because the
estimated impacts range from costs to cost savings, this final rule is
considered neither regulatory or deregulatory under E.O. 13771. Details
on the estimated impacts of this final rule can be found in the rule's
economic analysis, section 2.
This final rule adjusts certain immigration and naturalization
benefit request fees charged by U.S. Citizenship and Immigration
Services (USCIS). It also removes certain fee exemptions, changes fee
waiver requirements,\125\ alters premium processing time limits, and
modifies intercountry adoption processing. This final rule removes the
proposed fee that was introduced in the NPRM of this rule for Form I-
821D; \126\ it does not provide for the proposed transfer of any
Immigration Examination Fee Account (IEFA) funds collected by USCIS to
ICE; \127\ it reassigns the proposed National Record Center (NRC) costs
that do not directly apply to the genealogy program, thereby setting
genealogy fees lower than proposed; \128\ and it now allows for a $10
reduction in filing fee for applicants who file online for forms that
are electronically available by USCIS rather than submit paper
applications.\129\
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\125\ Also, in this final rule DHS consolidates the Director's
discretionary provision on fee waivers to remove redundancy. 84 FR
62363. New 8 CFR 106.3.
\126\ 84 FR 62320, 62362; proposed and new 8 CFR
106.2(a)(2)(38).
\127\ 84 FR 62287, 84 FR 67243. This final rule does not
transfer funds to ICE. Therefore, DHS removes $207.6 million for ICE
from its cost baseline, resulting in lower fees than if DHS pursued
the transfer of funds.
\128\ 84 FR 62315, 62316, 62362; proposed and new 8 CFR
106.2(c)(1)-(c)(2); new 8 CFR 106.2(c)(1)-(c)(2).
\129\ New 8 CFR 106.2(d).
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USCIS conducted a comprehensive biennial fee review and determined
that current fees do not recover the full cost of providing
adjudication and naturalization services. Therefore, DHS adjusts USCIS
fees by a weighted average increase of 20 percent, adds new fees for
certain immigration benefit requests, establishes multiple fees for
nonimmigrant worker petitions, and limits the number of beneficiaries
for certain forms. This final rule is intended to ensure that USCIS has
the resources it needs to provide adequate service to applicants and
petitioners. It also makes changes related to setting, collecting, and
administering fees. DHS has kept certain fees, such as the fee for the
Form

[[Page 46890]]

N-400, Application for Naturalization, below the level indicated by the
fee setting model based on policy choices, or provided that certain
fees may be waived, transferring the costs not covered by the lower or
waived fee to other benefit requests. However, in this rule, DHS is
focusing on the beneficiary pays principle and assigning fees to those
who are going to directly reap the benefits of the applicable
immigration benefit request. DHS's policy shift to the beneficiary-pays
principle, as detailed in the preamble, recognizes that different
immigration services provide varying levels of societal net benefits
(whether economic or humanitarian), and previously DHS accounted for
some aspects of the social benefit of specific services through holding
fees below their cost.\130\ However, DHS believes that the beneficiary-
pays principle is generally more equitable and has largely adopted it
in this fee rule. Regardless, fee schedule adjustments are necessary to
recover the full operating costs of administering the nation's lawful
immigration system, safeguarding its integrity and promise by
efficiently and fairly adjudicating requests for immigration benefits,
while protecting Americans, securing the homeland, and honoring our
values. This final rule also makes certain adjustments to fee waiver
eligibility, filing requirements for nonimmigrant workers, the premium
processing service, and other administrative requirements.
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\130\ Government Accountability Office (GAO), Federal User Fees:
A Design Guide (May 29, 2008), available at https://www.gao.gov/products/GAO-08-386SP. (last accessed Feb. 24, 2020).
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For the 10-year implementation period of the rule, DHS estimates
the annualized costs of the rule to be $13,856,291, annualized at
either 3- and 7-percent discount rates. DHS estimates the annualized
cost savings to be $6,192,201 to $22,546,053. DHS estimates the
annualized net societal costs and savings of the rule to range from
costs of $7,664,090 to savings of $8,689,762. Over the 10-year
implementation period of the rule, DHS estimates annualized transfers
to the government from applicants/petitioners to be $551,842,481
annualized at either 3- and 7-percent discount rates. Over 10-year
implementation period of the rule, DHS estimates the annualized
transfers of the rule between different groups of fee-paying applicants
and/or petitioners to specific form populations is $832,239,426,
annualized at either 3- and 7-percent discount rates.
The final revenue increase is based on USCIS costs and volume
projections available at the time of the USCIS fee review. Table 7
provides a detailed summary of the provisions of this final rule and
their impacts.

Table 7--Summary of Provisions and Impacts--Costs, Transfers, and
Benefits of This Final Rule Summary
------------------------------------------------------------------------
Estimated costs Estimated
Provision Purpose of or transfers of benefits of
provision provision provision
------------------------------------------------------------------------
(a) Reduced Fees USCIS does not Quantitative: Quantitative:
for Filing require that Applicants-- Applicants--
Online. immigration A None.
Form I- benefit requests transfer of Qualitative:
90, Application be filed online. $6.1 million Applicants--
to Replace Voluntarily, annually from
Permanent filing on paper applicants/ Facilitates
Resident Card remains a valid petitioners who electronic
Form N- option. However, will pay $10 processing and
336, Request for for forms more for those adjudications
a Hearing on a currently same filings on which helps
Decision in eligible for paper to fee- streamline
Naturalization online filing, paying USCIS
Proceedings the fee will be applicants/ processes. This
(Under Section $10 more if petitioners could reduce
336 of the INA) filed on paper. filing eligible costs and could
Form N- forms online speed
400, Application for a adjudication of
for particular cases.
Naturalization immigration Results
Form N- benefit or in more
565, Application request as a accurately
for Replacement result of the prepared and
Naturalization/ final supported
Citizenship applicable requests
Document USCIS filing accompanied by
Form I- fees. necessary
130/130A, Qualitative: evidence and
Petition for Applicants-- documentation.
Alien Relative None. Reduces the
Form N- DHS/USCIS-- need for USCIS
600, Application None. to request
for Certificate additional
of Citizenship data,
Form N- clarifying
600K, information, or
Application for documents.
Citizenship and Reduce
Issuance of the collection
Certificate of unnecessary
Under Section or duplicative
322 information as
Form I- the system
539/539A, guides
Application To requestors to
Extend/Change provide
Nonimmigrant responses that
Status comply with
Form G- requirements
1041, Genealogy and
Index Search instructions
Request that are
Form G- pertinent to
1041A, Genealogy their benefit
Records Request requests
DHS/USCIS--
USCIS
will save in
reduced intake
and storage
costs at the
USCIS Lockbox
or other intake
facilities.
Based on
current USCIS
internal
lockbox
analysis at
this time, each
submission
completed
online rather
than through
paper provides
a cost savings
of $7 per
submission and
operational
efficiencies to
both USCIS and
filers--benefit
s that will
accrue
throughout the
immigration
lifecycle of
the individual
and with the
broader use of
online filing
and e-
processing.
USCIS
also realizes
cost savings
from no longer
having to send
paper-based
notices,
requests, and
other
communications
to requestors
via mail.

Decrease the
risk of
mishandled,
misplaced, or
damaged files;
increase
availability of
administrative
records; and
decrease
occasionally
lost paper
files;
electronic
records would
not be
physically
moved around to
different
adjudication
offices. USCIS
could easily
redistribute
electronic
files among
adjudications
offices located
in different
regions, for
better
management of
workload
activities.

[[Page 46891]]

(b) Secure Mail USCIS will use Quantitative: Quantitative:
Initiative. the Signature Applicants-- Applicants--
Confirmation None.
Restricted Qualitative: Applicants with
Delivery as a Applicants-- unstable
method of None. addresses or
delivery of DHS/USCIS-- who move often
secure documents DHS will be more
for USCIS. will experience certain to
a cost of $34.5 receive their
million from documents.
the United Qualitative:
States Postal Applicants--
Service (USPS) USCIS
for total mail and applicants
cost, which can track their
includes document using
Signature the USPS
Confirmation website up to
Restricted when the
Delivery document is
confirmation to delivered.
re -send secure
documents to Recipients will
the proper also have the
recipient. When ability to
they fail to change their
make it to delivery
their proper location by
recipient. going to the
USPS website
and selecting
``hold for
pickup'' to
arrange for
pickup at a
post office at
a date and time
that suits
them.
DHS/USCIS--
Ensure
secure and
important
identity
documents
issued by USCIS
are delivered
to the address
of person to
whom they
rightfully
belong.
Will
reduce the
likelihood of
mis-delivered
documents that
could be mis-
used.
(c) Clarify DHS is changing Quantitative: Quantitative:
Dishonored Check its provision in Applicants-- Applicants--
Re-presentment this rule that None. None.
Requirement and if a check or Qualitative: Qualitative:
Fee Payment other financial Applicants-- Applicants--
Method, and Non- instrument used None. None.
refundability. to pay a fee is DHS/USCIS-- DHS/USCIS--
returned as None. By
unpayable clarifying the
because of dishonored fee
insufficient check re-
funds, USCIS presentment
will resubmit processes,
the payment to USCIS will
the remitter reduce
institution one administrative
time. burdens and
If the remitter processing
institution errors
returns the associated with
instrument used fee payments.
to pay a fee as In the
unpayable a event that the
second time, bank that
USCIS will issues the
reject the credit card
filing. USCIS rescinds the
will not re- payment of a
deposit fee to USCIS,
financial USCIS will be
instruments able to invoice
returned as the responsible
unpayable for a party
reason other (applicant,
than petitioner, or
insufficient requestor) and
funds. pursue
In addition, DHS collection of
may reject a the unpaid fee
request that is in accordance
accompanied by a with 31 CFR
check that is 900--904
dated more than (Federal Claims
365 days before Collection
the receipt Standards).
date. Clarifying that
DHS is also fees are due
clarifying that regardless of
fees are non- the result or
refundable how long the
regardless of decision takes,
the result of and there are
the immigration no refunds, is
benefit request expected to
or how much time result in USCIS
the request losing fewer
requires to be credit card
adjudicated. disputes.
(d) Eliminate $30 DHS is removing Quantitative: Quantitative:
Returned Check the $30 charge Applicants-- Applicants--
Fee. for dishonored None. $0.17
payments. million annual
savings.
................. Qualitative: Qualitative:
Applicants-- Applicants--
None. The
DHS/USCIS-- current $30
There charge and the
may be an potential of
increase in having a
insufficient benefit request
payments by rejected
applicants encourages
because the $30 applicants to
fee may serve provide the
as a deterrent correct filing
for submitting fees when
a deficient submitting an
payment. application or
petition.

Applicants who
submit bad
checks will no
longer have to
pay a fee.
DHS/USCIS--
DHS
will not have
to seek payment
of the $30 fee
if payment is
dishonored
resulting in a
savings to
USCIS as it
spends more to
collect the $30
returned
payment charges
than the $30
itself. USCIS
hires a
financial
service
provider to
provide fee
collection
services to
pursue and
collect the $30
fee. This
expense would
no longer be
necessary with
this change.
DHS
assumes that
the current $30
charge and the
potential of
having a
benefit request
rejected
encourages
applicants to
provide the
correct filing
fees when
submitting an
application or
petition.
(e) Removal of DHS is limiting Quantitative: Quantitative:
Fee waivers. fee waivers to Applicants-- Applicants--
statutorily A Current
mandated fee transfer of fee-paying
waivers and two $368.3 million applicants are
other annually to no longer
humanitarian those burdened with
programs and to applicants who covering the
those applicants previously costs for those
who have an received a fee applicants who
annual household waiver from currently
income of less different receive fee
than 125% of the groups of fee- waivers.
Federal Poverty paying DHS/USCIS--
Guidelines applicants. None.
(FPG). These transfers Qualitative:
Additionally, derive from Applicants--
fee waiver applicable None.
applicants USCIS filing DHS/USCIS--
cannot have been fees. This
admitted into DHS/USCIS-- provision may
the United None. reduce
States subject Qualitative: administrative
to an affidavit Applicants-- costs to USCIS
of support under of adjudicating
INA section Limiting fee fee waiver
213A, 8 U.S.C waivers may requests. It
1183a or be adversely may also reduce
subject to the affect some the amount of
public charge applicants' training or
inadmissibility ability to guidance
ground under INA apply for necessary to
section immigration adjudicate
212(a)(4), 8 benefits. unique fee
U.S.C. 1182 DHS/USCIS-- waiver
(a)(4). None. requests.

[[Page 46892]]

(f) Fee DHS is removing Quantitative: Quantitative:
Exemptions. the fee Applicants-- Applicants--
exemptions for A None.
an initial transfer of
request for an $3.9 million
employment annually in
authorization filing fees to
document (EAD) the categories
for the listed in the
following provision that
classifications: are no longer
exempted from
different
groups of fee-
paying
applicants of
Form I-765.
Citizen Qualitative: Qualitative:
of Micronesia, Applicants-- Applicants--
Marshall This The
Islands, or could result in removal of fee
Palau; lost wages for exemptions for
Granted the workers who these
Withholding of may not be able populations may
Deportation; to afford the reduce further
costs of filing increases of
Temporary Form I-765 and other fees to
Protected Status lost the fee-paying
(TPS) if filing productivity population.
an initial TPS for the DHS/USCIS--
application for employers that
individuals hire these Continuing to
under 14 years workers. The provide these
of age or over lost wages and fee exemptions
65 years of age. productivity would result in
can be the costs of
Applicant for considered as those services
Asylum and costs of the being
Withholding of forgone transferred to
Deportation or benefits. the fees for
Removal. DHS/USCIS-- other forms.
None.
Removing the
exemptions
allows DHS to
recover the
costs of
adjudication of
Form I-765 for
these
categories from
those who
benefit from
the service
instead of
other fee
payers.
(g) Changes to DHS is Quantitative: Quantitative:
Biometric incorporating Applicants-- Applicants--
Services Fee. the biometric $12.4 $15.0
services cost million costs million in
into the for asylum transfers from
underlying applicants the government
immigration paying the to fee paying
benefit request biometrics applicants/
fee instead of service fee and petitioners
charging a flat for those for, EOIR, TPS,
$85 biometric completing and and term CNMI
services fee. submitting new resident
Form I-600A/600 applicants
Supplement 3. resulting from
a $55 reduction
in biometrics
service fees
per applicant.
DHS will require Qualitative: Qualitative:
a $30 biometric Applicants-- Applicants--
services fee for None.
an applicant for DHS/USCIS-- Simplifies the
asylum or an None. process to
alien approved submit
for parole who payments.
applies for May
employment result in fewer
authorization incorrect
(c)(8)'s, TPS payments and
initial therefore,
applications and fewer rejected
re- applications.
registrations,
EOIR applicants, Biometric costs
and term CNMI incorporated
resident program into the fee
applicants. will actually
correspond to
the services
provided.
DHS/USCIS--

Eliminating the
separate
payment of the
biometric
services fee
will decrease
the
administrative
burden required
to process both
a filing fee
and biometric
services fee
for a single
benefit
request.
USCIS
can assign a
biometric cost
to the form fee
that is based
on the
appropriate
contract
instead of a
standard cost.
(h) Discontinue DHS is requiring Quantitative: Quantitative:
bundling of separate fees Applicants-- Applicants--
interim benefits for Forms I-765 A Not
when Forms I-765 and/or I-131 transfer of estimated.
and I-131 are when filed $597.3 million
filed concurrently from those
concurrently with Form I-485 applicants who
with pending or when a Form I- file for Forms
Form I-485 or 485 is pending. I-765 and/or I-
when a Form I- 131
485 is pending. concurrently
filed with Form
I-485 or while
it is pending
to different
groups of fee-
paying
applicants.
................. Qualitative: Qualitative:
Applicants-- Applicants--
None. None.
DHS/USCIS--
The
provision will
isolate stand-
alone interim
benefit
applicants from
those
concurrently
filing Form I-
485 allowing
USCIS to more
accurately
assess fee-
paying
percentages,
fee-paying
volumes, and
fees for all
three benefit
types.
Easier
to administer
separate fees
than to
determine if
the Forms I-131
and/or I-765 is
supposed to be
free or require
a fee.
Form I-
485 applicants
will be treated
the same as
other
applicants for
employment
authorization
and advance
parole.
Requests for
interim
benefits
associated with
a pending Form
I-485 will be
adjudicated the
same as all
other requests
for interim
benefits.
(i) Form I-485 DHS is requiring Quantitative: Quantitative:
Fee for Children payment of the Applicants-- Applicants--
Under 14, Filing full $1,130 fee A transfer of Not
with Parent. for a child $11.4 million estimated.
under the age of from applicants
14 years when who
concurrently concurrently
filing Form I- file a Form I-
485 with a 485 with a
parent. child under the
age of 14 to
different
groups of fee-
paying
applicants.
................. Qualitative: Qualitative:
Applicants-- Applicants--
DHS/USCIS-- None.
None. DHS/USCIS--
Easier
to administer
one single fee
for Form I-485
will reduce the
burden of
adjudication
and better
reflect the
cost of
adjudication.
(j) Allow DHS is expanding Quantitative: Quantitative:
Individuals with the population Applicants-- Applicants--
Advance Parole eligible to use A transfer of None.
to use Form I- Form I-131A to $10.1 annually
131A, include to applicants
Application for individuals with who file Form I-
Travel Document advance parole 131A from
(Carrier documents. different
Documentation) groups of
applicants.

[[Page 46893]]

Qualitative: Qualitative:
Applicants-- Applicants--
In
addition to the Individuals who
filing fee, DHS lose their
estimated a advance parole
qualitative per cards while
unit cost per abroad now have
applicant for a defined
the opportunity process to
cost of time receive carrier
for completing documentation
Form I-131A and to return to
submitting one the U.S.
passport-sized DHS/USCIS--
photo of $32.66 None.
per unit
application
cost.
DHS/USCIS--
None.
(k) Separating DHS is separating Quantitative: Quantitative:
Form I-129, the Petition for Applicants-- Applicants--
Petition for a a Nonimmigrant A $5.9
Nonimmigrant Worker, Form I- transfer of million if HR
Worker, into 129, into $75.1 million specialist
Different Forms, several forms in filing fees file, $12.8
and Limit with different of visa million if in-
Petitions Where corresponding category house lawyers
Multiple fees. specific file, or $22.3
Beneficiaries DHS also is petitions from million if
are Permitted to imposing a limit petitioners outsourced
25 Named of 25 named using the lawyers file in
Beneficiaries beneficiaries specific new annual savings
per Petition. per petition Form I-129 to the
where multiple classification petitioners
beneficiaries forms to filing Form I-
are permitted. different 129 new visa
groups of fee- category
paying specific
petitioners. petitions. The
DHS/USCIS-- annual savings
Not will be in the
estimated. Form I-129
opportunity
costs of time
to complete the
different form
classifications
.
DHS/USCIS--
None.
................. Qualitative: Qualitative:
Applicants-- Applicants--
None.
DHS/USCIS-- Separating
None. forms will
reduce the need
to navigate
lengthy
instructions
that do not
apply to their
petition.
DHS/USCIS--
By
splitting the
form and
introducing
several
different fees,
this provision
will simplify
or consolidate
the information
requirements
for petitioners
and applicants
as well as
better reflect
the cost to
adjudicate each
specific
nonimmigrant
classification
type.
(l) Extend DHS is changing Quantitative: Quantitative:
premium the premium Applicants-- Applicants--
processing processing Not Not
timeframe from timeframe from estimated. estimated.
15 calendar days 15 calendar days
to 15 business to 15 business
days. days.
................. Qualitative: Qualitative:
Petitioners-- Petitioners--
An Removes
employer may petitioner
lose some expectation of
productivity 15 calendar day
but USCIS has processing to
no way to allow for
estimate what better business
that loss may planning.
be. Premium
processing is
Applicants and for quick
employers may adjudication
have to wait 4 and certainty,
days or longer but they lose
for decisions no productivity
on their cases from the
DHS/USCIS-- additional 4
None. days.
DHS/USCIS--
USCIS
will have
additional time
to process a
petition before
it has to issue
a refund for
not meeting the
guaranteed
timeline.
In
addition, the
extra time will
allow USCIS to
avoid
suspending
premium
processing
service as
often as has
recently been
required when
premium
processing
request volumes
are high.
(m) Creation of DHS is creating a Quantitative: Quantitative:
Form I-600A/600 new form, Form I- Applicants-- Applicants--
Supplement 3, 600 Supplement $0.14 None.
Request for 3, Request for million costs
Action on Action on an for completing
Approved For I- Approved Form I- and submitting
600A/I-600 and 600A/I-600 and new Form I-600A/
new fee. new fee to 600 Supplement
clarify the 3.
regulations and
formalize
current practice
for requests for
action on
approved Forms I-
600A/I-600.
DHS is altering Qualitative: Qualitative:
the validity Applicants-- Applicants--
period for a None. Improve
Form I-600A DHS/USCIS-- and align the
approval in an $0.13 adjudication
orphan case from million in and approval
18 to 15 months costs for processes for
to remove processing and adoptions from
inconsistencies reviewing the countries that
between Form I- new Form I-600A/ are party to
600A approval 600 Supplement the Hague
periods and 3. Adoption
validity of the Convention and
Federal Bureau countries that
of Investigation are not.
(FBI) background Clarify
check. the process for
applicants who
would like to
request an
extension of
Form I-600A/I-
600 and/or
another type of
approved change
to their
application/
petition.
DHS/USCIS--

Standardizes
USCIS process
and provides
for the ability
to collect a
fee.
Improve
and align the
USCIS
adjudication
and approval
processes for
adoptions of
children from
countries that
are party to
the Hague
Adoption
Convention and
from countries
that are not.

Changing the
validity period
to 15 months
will make the
Form I-600A
approval
periods
consistent with
the validity of
FBI biometric
related
background
checks. The
uniform 15-
month validity
period will
also alleviate
the burden on
prospective
adoptive
parents and
adoption
service
providers to
monitor
multiple
expiration
dates.

[[Page 46894]]

(n) Changes to DHS is changing Quantitative: Quantitative:
Genealogy Search how USCIS Applicants-- Applicants--
and Records processes DHS Index
Requests. genealogy estimates the search and
requests. new annual records
DHS is expanding costs to file requestors who
the use of Form G-1041 file online,
electronic index search will pay a
genealogy requests and reduced fee of
requests; Form G-1041A $10 dollars
changing the records compared to
search request requests will those who file
process so that be $1.3 million by paper.
USCIS can annually.
provide
requesters with
digital records,
if they exist;
and changing the
genealogy fees.
DHS is also Qualitative: Qualitative:
offering an Applicants-- Applicants--
online filing In
fee, for those addition to the Genealogy
genealogy filing fee search and
searches and increase, DHS records request
records estimated process changes
requests. qualitative per will increase
unit cost of accuracy and
$14.70 per decrease wait
index search times for
requests and requestors.
records Fewer
request. individuals may
DHS/USCIS-- need to file
USCIS Form G-1041A to
will still need request a
to mail some record if it is
records in provided
cases where digitally in
requestors who response to a
cannot submit Form G-1041
the forms filing.
electronically DHS/USCIS--
need to submit Reduce
paper copies of costs for
both forms with mailing,
required filing records
fees. processing, and
storage costs
because
electronic
versions of
records
requests will
reduce the
administrative
burden on
USCIS.
USCIS
will save $16
to $45 per
index search
service and $26
to $55 for each
textual file
retrieved.
The
provisions are
streamlining
the genealogy
search and
records request
process
increases
accuracy.
(o) Remove DHS is Quantitative: Quantitative:
Reduced Fee for eliminating the Applicants-- Applicants--
Naturalization reduced fee A None.
Applicants Using option for Form transfer of
Form I-942, N-400 that $3.7 million
Request for applies to annually from
Reduced Fee. applicants whose applicants who
documented previously
household income filed Form N-
is greater than 400 with the
150 percent and reduced fee.
not more than These
200 percent of individuals
the Federal will no longer
Poverty be able to
Guidelines. request a
reduced Form N-
400 fee using
Form I-942 from
different fee-
paying
applicants.
................. Qualitative: Quantitative:
Applicants-- Applicants--
$0.05
Applicants will million annual
have a total quantitative
per unit cost savings to the
for N-400 applicants
applications of filing for a N-
$182.12 400 will be in
(opportunity the I-942
cost to file, opportunity
biometric costs of time,
collection and to complete the
travel) with form being
the increased eliminated.
filing fee. DHS/USCIS--
DHS/USCIS-- A
None. qualitative
benefit to DHS
by eliminating
the Form I-942
will reduced
the
administrative
burden on the
agency to
process the
Form I-942.
(p) Charge for an DHS will require Quantitative: Quantitative:
initial Form I- a fee for an Applicants-- Applicants--
765 while an initial A Other
asylum Application for transfer of EAD applicants
application is Employment $118.8 million will not be
pending. Authorization, annually to required to
Form I-765, when applicants who subsidize EADs
asylum file an initial for pending
applicants apply Form I-765 with asylum
for asylum or a pending applicants.
file an asylum Qualitative:
Application for application Applicants--
Asylum and for from different None.
Withholding of fee-paying DHS/USCIS--
Removal, Form I- applicants. None.
589. Currently,
USCIS exempts Applicants
these initial could have
applicants from costs in lost
a fee with wages and
pending asylum employers could
applications. have costs in
terms of lost
productivity.
DHS/USCIS--
None.
(q) Charge a fee DHS will require Quantitative: Quantitative:
for Form I-589, a $50 fee for Applicants-- Applicants--
Application for Form I-589, A $0.74
Asylum and for Application for transfer of million in
Withholding of Asylum and for $5.5 million transfers from
Removal. Withholding of from Asylum the government
Removal. applicants to asylum I-589
filing Form I- applicants who
589 to will pay a
different fee- reduced fee of
paying $50 for Form I-
applicants. 485 Application
to Register
Permanent
Residence or
Adjust Status
from $1,130 to
$1,080 because
their I-589 was
approved.
................. Qualitative: Qualitative:
Applicants-- Applicants--
Some None.
applicants may DHS/USCIS--
not be able to None.
afford this fee
and will no
longer be able
to apply for
asylum.
(r) Combining DHS is combining Quantitative: Quantitative:
Fees for Form I- the current Applicants-- Applicants--
881, Application multiple fees A $0.03
for Suspension charged for an transfer of million in
of Deportation individual or $0.43 million savings from
or Special Rule family into a annually to the reduced
Cancellation of single fee for those who apply passport-style
Removal each filing of for suspension photos
(Pursuant to Form I-881, of deportation requirement.
Section 203 of Application for or special rule They currently
Public Law 105- Suspension of cancellation of have to provide
100 [NACARA]). Deportation or removal under 4 photos and
Special Rule NACARA using now they will
Cancellation of Form I-881 from only be
Removal different required to
(Pursuant to groups of fee- provide 2 which
Section 203 of paying will save each
Public Law 105- individuals. applicant money
100, the and by not
Nicaraguan traveling to
Adjustment and ASC facilities,
Central American for biometric
Relief Act collection/
[NACARA]). submission.
................. Qualitative: Qualitative:
Applicants-- Applicants--
None. None.
DHS/USCIS-- DHS/USCIS--
None.
Combining the
two IEFA fees
into a single
fee will
streamline the
revenue
collections and
reporting.
A
Single Form I-
881 fee may
help reduce the
administrative
and
adjudication
process for
USCIS more
efficient.

[[Page 46895]]

(s) Clarify who DHS will apply Quantitative: Quantitative:
must pay a 9-11 the 9-11 Applicants-- Applicants--
Response and Response and A None.
Biometric Entry- Biometric Entry- transfer of Qualitative:
Exit Fee for H- Exit Fee to all $199.2 million Applicants--
1B and L-1. covered in petition Fee
petitions fees to the will
(meaning those government from consistently be
meeting the 50 fee paying applied to all
employee/50 petitioners for H-1B or L-1
percent H-1B or extensions into petitions,
L test), whether the 9-11 whether for new
for new Response employment or
employment or Biometric Entry- extension.
extension. Exit account. DHS/USCIS--
Qualitative: The
Applicants-- collected fees
None. will help
DHS/USCIS-- increase the 9-
None. 11 Response and
Biometric Entry-
Exit fee
account for
biometric entry-
exit screening,
deficit
reduction, and
other public
purposes funded
by general
Treasury
revenues.
------------------------------------------------------------------------

A full regulatory impact analysis (RIA) of this final rule can be
found in the docket at www.regulations.gov. In addition to the impacts
summarized here, Table 8 presents the accounting statement as required
by Circular A-4.\131\
---------------------------------------------------------------------------

\131\ OMB Circular A-4 is available at: www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.
\132\ See RIA, Section E: Removal Fee Waivers.

Table 8--OMB A-4 Accounting Statement ($, 2019), Period of the Analysis 2020-2029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
Annualized Monetized Benefits N/A.......................... N/A.......................... N/A.
over 10 years. N/A.......................... N/A.......................... N/A..........................
--------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un- USCIS sets fees at levels sufficient to cover the full cost of the corresponding services RIA.
monetized, benefits. Unquantified associated with fairly and efficiently adjudicating immigration benefit requests and at a
Benefits. level sufficient to fund overall requirements and general operations, including the full
costs of processing immigration benefit requests and associated support benefits; the full
cost of providing similar benefits to asylum and refugee applicants at no charge; and the
full cost of providing similar benefits to others at no or reduced charge.
This final rule will help reduce the administrative and adjudication process for USCIS more
efficient. Limiting fee waivers may reduce administrative costs to USCIS of adjudicating
fee waiver requests. It may also reduce the amount of training or guidance necessary to
adjudicate unique fee waiver requests.
Removing the exemptions allows DHS to recover the costs of adjudicating Form I-765 for
these categories from those who benefit from the service instead of other fee payers.
Continuing to provide these fee exemptions would result in the costs of those fee services
being transferred to the fees for other forms. This final rule will help reduce the
administrative and adjudication process for USCIS more efficient.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
Annualized monetized costs over N/A.......................... (3%) $7,664,090.............. (3%) -$8,689,762............. RIA.
10 years (discount rate in N/A.......................... (7%) $7,664,090.............. (7%) -$8,689,762.............
parenthesis).
--------------------------------------------------------------------------------------------------------------------
Annualized quantified, but un- N/A
monetized, costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs... DHS is unable to quantify how many people will not apply because they do not have access to
fee waivers and we acknowledge that some individuals will need to save, borrow, or use a
credit card in order to pay fees because they do not have recourse to a fee waiver. DHS
does not know the price elasticity of demand for immigration benefits, nor does DHS know
the level at which the fee increases become too high for applicants/petitioners to apply.
While DHS acknowledges immigrants facing financial challenges encounter added difficulty
paying filing fees, any potential effects are expected to be indirect reductions in
consumption of other goods with relatively more elastic demand. DHS is unable to quantify
the extent to which the rule could result in some immigrants choosing to live in less
costly areas, seeking out higher earnings opportunities, curtailing other purchases or
rethinking their immigration altogether.
DHS has not omitted data describing the price sensitivity to fees, rather, the agency has
no data describing the myriad complex and changing unobservable factors that may affect
each immigrant's unique decision to file for a particular immigration benefit. DHS notes
that previous fee increases in 2007, 2010 and 2016 have had no discernible effect on the
number of filings that USCIS received, and, in response to public comments, acknowledges
that evidence presented indicating naturalization increases when previous fees were waived
entirely does not support the claim that immigration benefits are sensitive to the changes
implemented by this rule.\132\ DHS does not know the individual financial circumstances of
each applicant/petitioner applying for a particular immigration benefit.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 46896]]

Table 8--OMB A-4 Accounting Statement ($, 2019), Period of the Analysis 2020-2029--Continued
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
DHS believes that immigration to the United States remains attractive to millions of
individuals around the world and that its benefits continue to outweigh the costs
associated. Therefore, DHS believes the price elasticity of demand for immigration
services is inelastic and increases in price will have a minimal or no impact on the
demand for these services. This is true for all immigration services impacted by this
rule.
USCIS will look at future rulemakings, to encourage other forms being made available
(either in phases by benefits requests or a certain number per year), to file online as
DHS shifts to a more electronic immigration system.
USCIS will still need to mail some records in cases where requestors who cannot submit the
forms electronically need to submit paper copies of both forms with required filing fees,
as a result of changes to Genealogy Search and Records Requests.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
Annualized monetized transfers:
From whom to whom?
Annual transfer payments from (3%) $832,239,426............ ............................. ............................. RIA.
specific form populations to (7%) $832,239,426............
different groups of fee-paying
applicants/petitioners for a
particular immigration benefit
or request.
Annualized monetized transfers:
From whom to whom?
Annual transfer payments to (3%) $551,842,481............ ............................. ............................. RIA.
Government from Fee-Paying (7%) $551,842,481............
applicants/petitions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/category Effects.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or None. Preamble.
tribal governments
--------------------------------------------------------------------------------------------------------------------
Effects on small businesses.... The fees in this rule will not have a significant economic impact on a substantial number FRFA and Small Entity
of small entities for entities filing Forms I-129, I-40, I-360, I-910. Analysis (SEA).
The impact of this final rule for those entities that file Forms I-129, I-140, I-360, I-
910, I-924, and G-1041/1041A that submit petitions on behalf of nonimmigrant and immigrant
workers will face an increase or decrease in filing fees.
DHS is unable to estimate the number of G-1041 index searches and G-1041A records requests
considered small; however, some will receive a reduced fee and savings, by filing online.
Therefore, DHS does not currently have sufficient data on the requestors for the genealogy
forms to definitively assess the estimate of small entities for these requests. DHS is
unable to estimate by how much because DHS does not know how many individuals will have
access to a computer and/or internet capability. The case management tracking system used
by DHS for genealogy requests does not allow for requestor data to be readily pulled.
I-924/I-924A Regional centers are difficult to assess because there is a lack of official
data on employment, income, and industry classification for these entities. It is
difficult to determine the small entity status of regional centers without such data. Due
to the lack of regional center revenue data, DHS assumes regional centers collect revenue
primarily through the administrative fees charged to investors.
--------------------------------------------------------------------------------------------------------------------
Effects on wages............... None. None.
Effects on Growth.............. None. None.
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small businesses, small
governmental jurisdictions, and small organizations during the
development of their rules. The term ``small entities'' comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, or governmental
jurisdictions with populations of less than 50,000.\133\ A detailed
Small Entity Analysis is available in the docket of this rulemaking at
http://www.regulations.gov.
---------------------------------------------------------------------------

\133\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

Individuals, rather than small entities, submit the majority of
immigration and naturalization benefit applications and petitions. This
final rule will primarily affect entities that file and pay fees for
certain immigration benefit requests. Consequently, there are six
categories of USCIS benefits that are subject to a small entity
analysis for this final rule: Petition for a Nonimmigrant Worker, Form
I-129; Immigrant Petition for an Alien Worker, Form I-140; Civil
Surgeon Designation, Form I-910; Petition for Amerasian, Widow(er), or
Special Immigrant, Form I-360; Genealogy Forms G-1041 and G-1041A,
Index Search and Records Requests; and the Application for Regional
Center Designation Under the Immigrant Investor Program, Form I-924.
Following the review of available data, DHS does not believe that
the increase in fees in this final rule will have a significant
economic impact on a substantial number of small entities that are
filing Form I-129, Form I-140, Form I-910 or Form I-360. DHS does not
have sufficient data on the revenue collected through administrative
fees by regional centers to definitively determine the economic impact
on small entities that may file Form I-924. DHS also does not have
sufficient data on the requestors that file genealogy forms, Forms G-
1041 and G-1041A, to determine whether such filings were made by
entities or individuals and thus is unable to determine if the fee
increase for genealogy searches is likely to have a significant
economic impact on a substantial number of small entities. DHS is
publishing this Final Regulatory Flexibility Analysis (FRFA) to respond
to public comments and provide further information on the likely impact
of this rule on small entities.

[[Page 46897]]

1. Final Regulatory Flexibility Analysis (FRFA)
a. A Statement of Need for, and Objectives of, the Rule
DHS issues this final rule consistent with INA section 286(m),\134\
which authorizes DHS to charge fees for adjudication and naturalization
services at a level to ``ensure recovery of the full costs of providing
all such services, including the costs of similar services provided
without charge to asylum applicants or other immigrants,'' and the CFO
Act,\135\ which requires each agency's CFO to review, on a biennial
basis, the fees imposed by the agency for services it provides, and to
recommend changes to the agency's fees. DHS is adjusting the fee
schedule for DHS immigration and naturalization benefit applications
after conducting a comprehensive fee review for the FY 2019/2020
biennial period and determining that current fees do not recover the
full costs of services provided. DHS has determined that adjusting the
fee schedule is necessary to fully recover costs adjustments are
necessary to associated with administering the nation's lawful
immigration system, safeguarding its integrity and promise by
efficiently and fairly adjudicating requests for immigration benefits,
while protecting Americans, securing the homeland, and honoring our
values.
---------------------------------------------------------------------------

\134\ See 8 U.S.C. 1356(m).
\135\ See 31 U.S.C. 901-03.
---------------------------------------------------------------------------

b. A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis, a Statement
of the Assessment of the Agency of Such Issues, and a Statement of any
Changes Made in the Proposed Rule as a Result of Such Comments
Comment: Some commenters wrote that the proposed rate increase
would certainly suppress the ability of hundreds of thousands of people
to research their family history. These commenters stated this would
have a significant economic impact on a substantial number of small
entities and prevent businesses from making profits providing
information to others.
Response: DHS acknowledges the scope of the increase in fees for
Form G-1041 and G-1041A. DHS recognizes that some small entities may be
impacted by these increased fees but cannot determine how many or the
exact impact.\136\ USCIS receives fewer than 10,000 genealogy requests
each year, so the fees should not affect hundreds of thousands of
people as the commenter mentions.
---------------------------------------------------------------------------

\136\ See economic analysis (RIA) Section M Changes to Genealogy
Search and Records Requests and Section E in the SEA for further
detailed information pertaining to the economic impact on small
entities.
---------------------------------------------------------------------------

DHS took into consideration all of the comments pertaining to Form
G-1041 Genealogy Index Search Request and G-1041A Genealogy Record
Request fees from the proposed and lowered the fees in this final rule.
The fee for the Genealogy Index Search Request, Form G-1041 is
increasing from $65 to $160, an increase of $95 (146 percent) for those
who use the electronic form. The fee for Form G-1041A will increase
from $65 to $265, an increase of $200 (308 percent) for those who mail
in this request. DHS is setting the fee $10 lower for requesters who
use the electronic version and file this request online. The fee for
Form G-1041A is increasing from $65 to $255, an increase of $190 (292
percent) for those who use the electronic form.
In this final rule, DHS adjusts the fees for all categories of Form
I-129 to reflect the estimated full cost of adjudication. The evidence
provided in the stand-along Small Entity Analysis available in the
docket of this rulemaking suggests that the additional fees in this
rule do not impose a significant economic impact on a substantial
number of small entities. As for the comment stating that low-wage H-2A
agricultural workers would have their fees increased, this rule imposes
no fees on H-2A workers because the petitioning entity is prohibited
from passing any of the costs of the recruitment, hiring, petitioning,
travel or housing to the H-2A worker. DHS declines to make changes in
this final rule in response to these comments.
Comment: A commenter said the proposed rule is contrary to the RFA
because it fails to take into account the burdens of its regulatory
actions on small entities, including small businesses and non-profits.
Several commenters stated that USCIS should revise its RFA analysis to
consider the economic impact of the proposed rule on small entities
that file or pay for any immigration benefits applications.
Response: As required by the RFA, DHS considered whether this rule
will have a significant economic impact on a substantial number of
small entities. DHS also considered all types of entities as required
by the RFA including small businesses, small not for profits, and small
governmental jurisdictions that filed petitions with USCIS. The full
analysis of these findings are found in the stand-alone Small Entity
Analysis for this final rule found in the docket of this rulemaking.
Comment: A commenter said the majority of livestock producers are
family businesses that play a critical role in the production of food
and fiber products in the United States and require labor during
several different periods each year. The commenter stated these
businesses must fill out named beneficiary petitions for extension of
stay, and that with marginal cost increases between 44 and 87 percent,
small business employers will ``disproportionately bear the burden'' of
the proposed fee increases.
Response: This final rule in no way is intended to reduce, limit,
or prevent the filing of a request for any specific immigration benefit
by any population, industry, or group. DHS agrees that immigrants are
an important source of labor in the United States and contribute to the
economy. DHS acknowledges that some employers will pay the increased
Form I-129H-2A fee; however, they will only have to submit one petition
based on the number of named beneficiaries.
The SEA analyzed the impacts of this rule on entities that were
considered small based on employee count or revenue. Entities with
missing revenue data were excluded. Among the 346 small entities with
reported revenue data, all experienced an economic impact of
considerably less than 2 percent with the exception of 11 entities.
Those 11 small entities with greater than a 2 percent impact filed
multiple petitions and had a low reported revenue. Therefore, these
small entities may file fewer petitions as a result of this rule.
Depending on the immigration benefit request, the average impact on all
346 small entities with revenue data ranges from -0.12 to 0.63 percent
as shown in Table 7, of the SEA. In other words, no matter which
version of the newly separated Form I-129 is applicable, the absolute
value of the average impact on the described 346 small entities is less
than 1 percent. DHS does not believe that the benefit request fees
established by this final rule would make an individual forego filling
a vacant position rather than submitting a petition for a foreign
worker with USCIS.
The SEA outlines using the subscription or public-use databases
identified previously. DHS assembled revenue and employment information
on these entities and determined that 556, or 85.5 percent of these
petitioners met the definition of small entities. Of those that we
determined could be classified as small entities, 71 percent had annual
revenues of less than a

[[Page 46898]]

million and approximately 9 percent of them had petitioned for five or
more workers over that year. Thus, DHS does not believe that the final
rule will have a significant impact on a substantial number of small
entities in any one industry, including agriculture.
Comment: A commenter wrote that the Small Entity Analysis (SEA)
presented in the NPRM was inaccurate because it failed to include the
proposal's impact on hundreds of non-profit service providers that
support LPRs' pursuit of naturalization. The commenter stated that many
of these organizations cover costs related to legal consultation and
preparation with their own resources, and that the agency should
analyze how these organizations would be impacted by the proposal.
Response: Organizations that help applicants complete
naturalization applications are not the subject of the regulations
being revised in this rule, or the relevant statute, INA section
386(m), 8 U.S.C. 1356(m), which authorizes USCIS to set fees and
provide discretionary fee waivers to applicants. See 5 U.S.C. 603(b)(4)
(requiring only ``a description of the projected reporting,
recordkeeping and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which will be
subject to the requirement'' (emphasis added)); see 5 U.S.C. 603(b)(3)
(requiring only ``a description of and, where feasible, an estimate of
the number of small entities to which the proposed rule will apply''
(emphasis added)); see also Mid-Tex Elec. Co-op., Inc. v. FERC, 773
F.2d 327, 342 (D.C. Cir. 1985) (finding ``Congress did not intend to
require that every agency consider every indirect effect that any
regulation might have on small businesses in any stratum of the
national economy'' and limiting the impact analysis requirement ``to
small entities subject to the proposed regulation''). Therefore, any
impacts on such organizations are too indirect to require inclusion in
the SEA since the RFA only requires consideration of direct impacts to
small entities. Additionally, the naturalization applicants themselves
are individuals and therefore are not subjects for RFA consideration.
Comment: Another commenter stated that one example of how the
rule's cost analysis is unsupported by evidence is USCIS' conclusion
that only 1 percent of small businesses would be impacted. The
commenter said the methodology used relies upon the lack of signups/
registrations on several website directories, but nowhere does the
agency use the data it actually collects from businesses in every I-129
form submitted (e.g., company size, gross and net income, number of
employees requested), all of which the commenter said is readily
available within USCIS. Moreover, the commenter said the DOL's Labor
Condition Application and Program Electronic Review Management (PERM)
usage listing employers and numbers of employees sought shows the top
10-20 users are major corporations, while small and midsize businesses
hire between 1-10 people a year, most often one-offs. The commenter
said the fact that these companies mostly hire just one worker explains
that the overall cost and bureaucracy is a barrier to employer
participation.
Response: USCIS does not collect revenue and the number of
employees for all categories of Forms I-129, as stated in the stand-
alone SEA. Therefore, USCIS relied on a third-party sources (Hoover's,
Cortera, Manta, and Guidestar) to obtain this information (see table 4
of the SEA). DHS obtained petitioner data filed for Forms I-129 from
internal databases for fiscal year 2017 (FY 2017), spanning from
October 2016 to September 2017.\137\ This petitioner data included the
employer firm name, city, state, ZIP code, employer identification
number (EIN),\138\ number/type of filing, and petitioner or beneficiary
name. Filing data did not include information needed to classify the
entity according to size standards, such as revenue or number of
employees, so DHS used third party sources to obtain this information.
Therefore, for the analysis of the effects on Forms I-129, DHS used
several data sources to capture information on the characteristics of
entities required to pay these fees.
---------------------------------------------------------------------------

\137\ Source: DHS, USCIS, Office of Performance and Quality.
\138\ An Employer Identification Number (EIN) is a nine-digit
number that U.S. Internal Revenue Service assigns in the following
format: XX-XXXXXXX. It is used to identify the tax accounts of
employers. Employer Identification Number, p 2. https://www.irs.gov/pub/irs-pdf/p1635.pdf.
---------------------------------------------------------------------------

One of the databases used by USCS was Hoover's online database of
U.S. entities, a subscription service of Dun & Bradstreet. Hoover's
covers millions of companies and uses revenue from several years and is
one of the largest and most respected databases of company data. A
majority of the entities in the SEA sample size were found in Hoovers.
From these sources, DHS determined the North American Industry
Classification System (NAICS) code,\139\ revenue, and employee count
for each entity in the sample. A list of NAICS codes for each entity
matched in Forms I-129, I-140, I-910 and I-360 can be found in Appendix
A, along with the SBA threshold for each industry cluster.\140\ In
order to determine an entity's size, DHS first classified each entity
by its NAICS code, and then used the SBA size standards to compare the
requisite revenue or employee count threshold for each entity. Based on
the NAICS code, some entities are classified as small based on their
annual revenue and some based on the number of employees. Comment: A
commenter wrote these fees would disproportionately affect small
religious organizations that serve a charitable function in our
society.
---------------------------------------------------------------------------

\139\ U.S. Census Bureau, NAICS code listing: http://www.census.gov/eos/www/naics/.
\140\ SBA size standards effective October, 2017. Visited April,
2018. https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
---------------------------------------------------------------------------

Response: DHS disagrees that these fees would disproportionately
affect small religious organizations. USCIS used internal data as
indicated below in section (B)(1)(d), of the FRFA, including entities
who petition on behalf of foreign religious workers. DHS used the same
databases mentioned previously to search for information on revenue and
employee count. DHS used the same method as with Forms I-129 and I-140
to conduct the SEA based on a representative sample of the impacted
population. As detailed in Section of D of the SEA, DHS determined
that, based on the standard statistical formula, 420 randomly selected
entities from a population of 760 unique entities filed Form I-360
petitions. Therefore, DHS was able to classify 388 of 420 entities as
small entities that filed Form I-360 petitions, including combined non-
matches (5), matches missing data (74), and small entity matches (309).
DHS also used the subscription-based, online databases mentioned above
(Hoover's, Manta, Cortera, and Guidestar). The 74 matches missing data
that were found in the databases lacked revenue or employee count data.
DHS determined that 388 out of 420 (92.4 percent) entities filing
Form I-360 petitions were small entities.
Similar to other forms analyzed in this RFA, DHS calculated the
economic impact of this rule on entities that filed Form I-360 by
estimating the total costs associated with the final fee increase for
each entity. Among the 309 small entities with reported revenue data,
each would experience an economic impact considerably less than 1.0
percent. The greatest economic impact imposed by this final fee change
totaled 0.35 percent and the smallest totaled 0.000002 percent. The
average impact on all 309 small entities with revenue

[[Page 46899]]

data was 0.01 percent. DHS also analyzed the final costs of this rule
on the petitioning entities relative to the costs of the typical
employee's salary. Guidelines suggested by the SBA Office of Advocacy
indicate that the impact of a rule could be significant if the cost of
the regulation exceeds 5 percent of the labor costs of the entities in
the sector.\141\ According to the Bureau of Labor Statistics (BLS), the
mean annual salary is $53,290 for clergy,\142\ $46,980 for directors of
religious activities and education,\143\ and $35,860 for other
religious workers.\144\ Based on an average of 1.5 religious workers
\145\ petitioned for per entity, the additional average annual cost
would be $22 per entity.\146\ The additional costs per entity in this
final rule represent only 0.04 percent of the average annual salary for
clergy, 0.05 percent of the average annual salary for directors of
religious activities and education, and 0.06 percent of the average
annual salary for all other religious workers.\147\ Therefore, using
average annual labor cost guidelines, the additional regulatory
compliance costs in this final rule are not significant.
---------------------------------------------------------------------------

\141\ Office of Advocacy, Small Business Administration, ``A
Guide for Government Agencies, How to Comply with the Regulatory
Flexibility Act'', page 19: https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.
\142\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Clergy'': https://www.bls.gov/oes/2018/may/oes212011.htm.
\143\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Directors of
Religious Activities and Education'': https://www.bls.gov/oes/2018/may/oes212099.htm.
\144\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Religious Workers,
All Other'': https://www.bls.gov/oes/2018/may/oes212099.htm.
\145\ USCIS calculated the average filing per entity of 1.5
petitions, from the Form I-360 Sample with Petition Totals in
Appendix E, of the SEA for the U.S. Citizenship and Immigration
Services Fee Schedule NPRM. Calculation: (total number of petitions
from each sample id)/(total number of sample Form I-360 petitions) =
618/420 = 1.5 average petitions filed per entity.
\146\ Calculation: 1.5 average petitions per entity * $15
increase in petition fees = approximately $22 additional total cost
per entity.
\147\ Calculation: $22 per entity/$53,290 clergy salary x 100 =
.04 percent;
$22 per entity/$46,980 directors of religious activities and
education x 100 = .05 percent;
$22 per entity/$35,860 other religious workers x 100 = .06
percent.
---------------------------------------------------------------------------

c. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Rule, and a Detailed Statement of Any Change Made to the Final
Rule as a Result of the Comments
No comments were filed by the Chief Counsel for Advocacy of the
Small Business Administration (SBA).
d. A Description of and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
Entities affected by this rule are those that file and pay fees for
certain immigration benefit applications and petitions on behalf of a
foreign national. These applications include Form I-129, Petition for a
Nonimmigrant Worker; Form I-140, Immigrant Petition for an Alien
Worker; Form I-910, Civil Surgeon Designation; Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant; Genealogy Forms G-1041 and
G-1041A, Index Search and Records Requests; and Form I-924, Application
for Regional Center Designation Under the Immigrant Investor Program.
Annual numeric estimates of the small entities impacted by this fee
increase total (in parentheses): Form I-129 (77,571 entities), Form I-
140 (22,165 entities), Form I-910 (428 entities), and Form I-360 (698
entities).\148\ DHS was not able to determine the numbers of regional
centers or genealogy requestors that would be considered small
entities, therefore does not provide numeric estimates for Form I-924
or Forms G-1041 and G-1041A.\149\
---------------------------------------------------------------------------

\148\ Calculation: 90,726 Form I-129 * 85.5 percent = 77,571
small entities; 30,321 Form I-140 * 73.1 percent = 22,165 small
entities; 476 Form I-910 * 90.0 percent = 428 small entities; 760
Form I-360 * 91.9 percent = 698 small entities.
\149\ Small entity estimates are calculated by multiplying the
population (total annual receipts for the USCIS form) by the
percentage of small entities, which are presented in subsequent
sections of this analysis.
---------------------------------------------------------------------------

This rule applies to small entities, including businesses, non-
profit organizations, and governmental jurisdictions filing for the
above benefits. Forms I-129 and I-140, will see a number of industry
clusters impacted by this rule. See Appendix A of the SEA for a list of
impacted industry codes for Forms I-129, I-140, I-910, and I-360. Of
the total 650 small entities in the sample for Form I-129, most
entities were small businesses (556 or 85.5 percent) with 41 small not-
for-profit entities and only 4 small governmental jurisdictions.
Similarly, of the total 550 small entities in the sample for Form I-
140, most entities were small businesses (402 or 73.1 percent) with 6
small not-for-profit entities and 0 small governmental jurisdictions.
The fee for the application for civil surgeon designation (Form I-910)
will apply to physicians requesting such designation. There were 300
small entities in the sample for Form I-910, consisting of 270 small
governmental jurisdictions and 270 (or 90 percent) small entities that
were either small businesses or small not-for-profits. The fee for
Amerasian, widow(er), or special immigrants will apply to any entity
petitioning on behalf of a religious worker. Finally, Form I-924 will
impact any entity seeking designation as a regional center under the
Immigrant Investor Program or filing an amendment to an approved
regional center application. Captured in the dataset for Form I-924 is
also Form I-924A, which regional centers must file annually to
establish continued eligibility for regional center designation for
each fiscal year.
DHS does not have sufficient data on the requestors for the
genealogy forms, Forms G-1041 and G-1041A, to determine if entities or
individuals submitted these requests. DHS has previously determined
that requests for historical records are usually made by
individuals.\150\ If professional genealogists and researchers
submitted such requests in the past, they did not identify themselves
as commercial requestors and therefore could not be segregated within
the pool of data. Genealogists typically advise clients on how to
submit their own requests. For those that submit requests on behalf of
clients, DHS does not know the extent to which they can pass along the
fee increases to their individual clients. DHS assumes genealogists
have access to a computer and the internet. DHS is unable to estimate
the online number of index searches and records requests; however, some
will receive a reduced fee and cost savings, by filing online.
Therefore, DHS does not currently have sufficient data on the
requestors for the genealogy forms to definitively assess the estimate
of small entities for these requests. though DHS is unable to estimate
by how much because DHS does not know how many individuals will have
access to a computer and/or internet capability.
---------------------------------------------------------------------------

\150\ See Genealogy Program, 73 FR 28026 (May 15, 2008) (final
rule).
---------------------------------------------------------------------------

a. Petition for a Nonimmigrant Worker, Form I-129
DHS is separating Form I-129, Petition for a Nonimmigrant Worker,

[[Page 46900]]

into several forms with different corresponding fees, from the previous
$460. Currently, employers may use Form I-129, to petition for CW, E,
H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S,
Q-1, or R-1 nonimmigrant workers. As applicable, employers also may use
Form I-129 to apply for E-1, E-2, E-3, or TN nonimmigrant status for
eligible workers. DHS is separating the Petition for a Nonimmigrant
Worker, Form I-129, into several forms. These forms will include
information from the various supplemental forms for specific types of
workers. DHS will have different fees for these new forms. The final
fees are calculated at a more detailed level than the current fees.
The current fee for Form I-129 is $460. DHS will impose the
following fees for new Forms I-129 (separated into new forms by worker
type):

Form I-129H1, Petition for Nonimmigrant Worker: H-1
Classifications--$555
Form I-129H2A, Petition for Nonimmigrant Worker: H-2A
Classification (Named Beneficiaries)--$850
Form I-129H2B, Petition for Nonimmigrant Worker: H-2B
Classification (Named Beneficiaries)--$715
Form I-129L, Petition for Nonimmigrant Worker: L
Classifications--$805
Form I-129O, Petition for Nonimmigrant Worker: O
Classifications--$705
I-129E&TN, Application for Nonimmigrant Worker: E and TN
Classifications; and I-129MISC, Petition for Nonimmigrant Worker: H-3,
P, Q, or R Classification--$695
Form I-129H2A, Petition for Nonimmigrant Work Classification:
H-2A Classification (Unnamed Beneficiaries)--$415
Form I-129H2B, Petition for Nonimmigrant Worker: H-2B
Classification (Unnamed Beneficiaries)--$385.

For petitioners filing Form I-129 for H-2A and H-2B workers with
only unnamed beneficiaries, DHS will impose a lower fee than the
current filing fee. DHS will increase the fee when filed for all other
worker types. The fee adjustments and percentage increases or decreases
are summarized in Table 9.

Table 9--USCIS Fees for Separated Forms I-129 for Fiscal Year 2019/2020
----------------------------------------------------------------------------------------------------------------
Fee increase/
Immigration benefit request Current fee Final fee decrease Percent change
----------------------------------------------------------------------------------------------------------------
Form I-129H1--Named Beneficiaries............... $460 $555 $95 $21
Form I-129H2A--Named Beneficiaries.............. 460 850 390 85
Form I-129H2A--Unnamed Beneficiaries............ 460 415 -45 -10
Form I-129H2B--Named Beneficiaries.............. 460 715 255 55
Form I-129H2B--Unnamed Beneficiaries............ 460 385 -75 -16
Form I-129O..................................... 460 705 245 53
Form I-129 L1A/L1B/LZ Blanket................... 460 805 345 75
Forms I-129CW, I-129E&TN, and I-129MISC......... 460 695 235 51
----------------------------------------------------------------------------------------------------------------
Source: USCIS FY 2019/2020 Final Fee Schedule (see preamble).

Using a 12-month period of data on the number of Form I-129
petitions filed from October 1, 2016 to September 31, 2017, DHS
collected internal data for each filing organization including the
name, Employer Identification Number (EIN), city, state, zip code, and
number/type of filings. Each entity may make multiple filings. For
instance, there were receipts for 530,442 Form I-129 petitions, but
only 90,726 unique entities that filed those petitions. Since the
filing statistics do not contain information such as the revenue of the
business, DHS used third party sources of data to collect this
information. DHS used a subscription-based, online database--Hoover's--
as well as three open-access databases--Manta, Cortera, and Guidestar--
to help determine an organization's small entity status and then
applied Small Business Administration size standards to the entities
under examination.\151\
---------------------------------------------------------------------------

\151\ U.S. Small Business Administration, Office of Advocacy,
Size Standards Table effective August 19, 2019. Available at https://www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------

The method DHS used to conduct the SEA was based on a
representative sample of the impacted population with respect to each
form. To identify a representative sample, DHS used a standard
statistical formula to determine a minimum sample size of 384 entities,
which included using a 95 percent confidence level and a 5 percent
confidence interval for a population of 90,726 unique entities filing
Form I-129 petitions. Based on previous experience conducting small
entity analyses, DHS expects to find 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, DHS selected a sample size that was approximately 69
percent larger than the necessary minimum to allow for non-matches
(filing entities that could not be found in any of the four databases).
Therefore, DHS conducted searches on 650 randomly selected entities
from a population of 90,726 unique entities that filed Form I-129
petitions.
Of the 650 searches for small entities that filed Form I-129
petitions, 473 searches returned a successful match of a filing
entity's name in one of the databases and 177 searches did not match a
filing entity. Based on previous experience conducting regulatory
flexibility analyses, DHS assumes filing entities not found in the
online database are likely to be small entities. As a result, in order
to prevent underestimating the number of small entities this rule would
affect, DHS conservatively considers all of the non-matched entities as
small entities for the purpose of this analysis. Among the 473 matches
for Form I-129, DHS determined 346 to be small entities based on
revenue or employee count and according to their assigned North
American Industry Classification System (NAICS) code. Therefore, DHS
was able to classify 556 of 650 entities as small entities that filed
Form I-129 petitions, including combined non-matches (177), matches
missing data (33), and small entity matches (346). Using the
subscription-based, online databases mentioned above (Hoover's, Manta,
Cortera, and Guidestar), the 33 matches missing data found in the
databases lacked applicable revenue or employee count data.
DHS determined that 556 of 650 (85.5 percent) of the entities
filing Form I-129 petitions were small entities. Furthermore, DHS
determined that 346 of the 650 entities searched were small entities
based on sales revenue data,

[[Page 46901]]

which were needed to estimate the economic impact of this final rule.
Since these 346 small entities were a subset of the random sample of
650 entity searches, they were statistically significant in the context
of this research. In order to calculate the economic impact of this
rule, DHS estimated the total costs associated with the final fee
increase for each entity and divided that amount by the sales revenue
of that entity.\152\ Based on the final fee increases for Form I-129,
DHS calculated the average economic impact on the 346 small entities
with revenue data as summarized in Table 10.
---------------------------------------------------------------------------

\152\ Total Economic Impact to Entity = (Number of Petitions
Submitted per Entity * $X difference in current fee from final fee)/
Entity Sales Revenue.

Table 10--Economic Impacts on Small Entities With Revenue Data
------------------------------------------------------------------------
Fee increase/ Average impact
Immigration benefit request decrease percentage
------------------------------------------------------------------------
Form I-129H1............................ $95 0.15
Form I-129H2A--Named Beneficiaries...... 390 0.63
Form I-129H2A--Unnamed Beneficiaries.... -45 -0.07
Form I-129H2B--Named Beneficiaries...... 255 0.41
Form I-129H2B--Unnamed Beneficiaries.... -75 -0.12
Form I-129L............................. 345 0.56
Form I-129O............................. 245 0.40
Forms I-129CW, I-129E&TN, and I-129MISC. 235 0.38
------------------------------------------------------------------------
Source: USCIS calculation.

Among the 346 small entities with reported revenue data, all
experienced an economic impact of considerably less than 2 percent with
the exception of 11 entities. Those 11 small entities with greater than
a 2 percent impact filed multiple petitions and had a low reported
revenue, for any immigration benefit request made using separate Forms
I-129. Therefore, these small entities may file fewer petitions as a
result of this rule. Depending on the type of immigration benefit
request, the average impact on all 346 small entities with revenue data
ranges from -0.12 to 0.63 percent, as shown in the supporting
comprehensive SEA. Therefore, the average economic impact on the
described 346 small entities is less than 1 percent, regardless of
which newly separate Form I-129 petition is applicable. The evidence
suggests that the changes in fees imposed by this rule do not represent
a significant economic impact on these entities.
b. Immigrant Petition for an Alien Worker, Form I-140
USCIS is decreasing the fee to file Immigrant Petition for an Alien
Worker, Form I-140, from $700 to $555, a decrease of $145 (21 percent).
Using a 12-month period of data on the number of Form I-140 petitions
filed from October 1, 2016 to September 31, 2017, DHS collected
internal data similar to that of Form I-129. The total number of Form
I-140 petitions filed was 139,439, with 30,321 unique entities that
filed petitions. DHS used the same databases previously mentioned to
search for information on revenue and employee count.
DHS used the same method as with Form I-129 to conduct the SEA
based on a representative sample of the impacted population. To
identify a representative sample, DHS used a standard statistical
formula to determine a minimum sample size of 383 entities, which
included using a 95 percent confidence level and a 5 percent confidence
interval on a population of 30,321 unique entities for Form I-140
petitions. Based on previous experience conducting small entity
analyses, DHS expected to find 40 to 50 percent of the filing
organizations in the online subscription and public databases.
Accordingly, DHS selected a sample size that was approximately 44
percent larger than the necessary minimum to allow for non-matches
(filing entities that could not be found in any of the four databases).
Therefore, DHS conducted searches on 550 randomly selected entities
from a population of 30,321 unique entities that filed Form I-140
petitions.
Of the 550 searches for small entities that filed Form I-140
petitions, 480 searches successfully matched the name of the filing
entity to names in the databases and 70 searches did not match the name
of a filing entity. Based on previous experience conducting regulatory
flexibility analyses, DHS assumes filing entities not found in the
online databases are likely to be small entities. As a result, in order
to prevent underestimating the number of small entities this rule would
affect, DHS conservatively considers all of the non-matched entities as
small entities for the purpose of this analysis. Among the 480 matches
for Form I-140, DHS determined 324 to be small entities based on
revenue or employee count and according to their NAICS code. Therefore,
DHS was able to classify 402 of 550 entities as small entities that
filed Form I-140 petitions, including combined non-matches (70),
matches missing data (8), and small entity matches (324). Using the
subscription-based, online databases mentioned above (Hoover's, Manta,
Cortera, and Guidestar), the 8 matches missing data that were found in
the databases lacked applicable revenue or employee count statistics.
DHS determined that 402 out of 550 (73.1 percent) entities filing
Form I-140 petitions were small entities. Furthermore, DHS determined
that 324 of the 550 searched were small entities based on sales revenue
data, which were needed to estimate the economic impact of the final
rule. Since these 324 were a small entity subset of the random sample
of 550 entity searches, they were considered statistically significant
in the context of this research. Similar to Form I-129, DHS calculated
the economic impact of this rule on entities that filed Form I-140 by
estimating the total cost savings associated with the final fee
decrease for each entity and divided that amount by sales revenue of
that entity.
Among the 324 small entities with reported revenue data, each would
experience an economic impact of less than -2 percent. Using the above
methodology, the greatest economic

[[Page 46902]]

impact by this fee change totaled -1.74 percent and the smallest
totaled -0.00000006 percent, resulting in a cost savings as shown in
the supporting comprehensive SEA. The average impact on all 324 small
entities with revenue data was -0.06 percent. Because of the fee
decrease, these small entities will see a cost savings per application
in filing fees based on petitions. The negative number represents cost
savings to the petitioner. Therefore, the larger it is, the greater the
cost savings for the petitioners. The average impact on all 324 small
entities with revenue data was -0.06 percent. The evidence suggests
that the decreased fee in this final rule does not represent a
significant economic impact on these entities.
In addition to the individual Form I-129 and Form I-140 analyses,
USCIS analyzed any cumulative impacts of these form types to determine
if there were any impacts to small entities when analyzed together.
USCIS isolated those entities that overlapped in both samples of Forms
I-129 and I-140 by EIN. Only 1 entity had an EIN that overlapped in
both samples; this was a small entity that submitted 3 Form I-129
petitions and 1 Form I-140 petition. Due to little overlap in entities
in the samples and the relatively minor impacts on revenue of fee
increases of Forms I-129 and I-140, USCIS does not expect the combined
impact of these two forms to be an economically significant burden on a
substantial number of small entities.
c. Application for Civil Surgeon Designation, Form I-910
By law, a civil surgeon is a physician designated by USCIS to
conduct immigration medical examinations for individuals applying for
an immigration benefit in the United States. Form I-910 is used by a
physician to request that USCIS designate him or her as a civil surgeon
to perform immigration medical examinations in the United States and
complete USCIS Form I-693, Report of Medical Examination and
Vaccination Record.
DHS is decreasing the fee for Civil Surgeon Designations, Form I-
910, from $785 to $635, a decrease of $150 (19 percent). Using a 12-
month period of data from October 1, 2016 to September 31, 2017, DHS
reviewed collected internal data for Form I-910 filings. The total
number of Form I-910 applications was 757, with 476 unique entities
that filed applications. The third-party databases mentioned previously
were used again to search for revenue and employee count information.
Using the same methodology as the Forms I-129 and I-140, USCIS
conducted the SEA based on a representative sample of the impacted
population. To identify a representative sample, DHS used a standard
statistical formula to determine a minimum sample size of 213 entities,
which included using a 95 percent confidence level and a 5 percent
confidence interval on a population of 476 unique entities for Form I-
910. USCIS conducted searches on 300 randomly selected entities from a
population of 476 unique entities for Form I-910 applications, a sample
size approximately 40 percent larger than the minimum necessary.
Of the 300 searches for small entities that filed Form I-910
applications, 266 searches successfully matched the name of the filing
entity to names in the databases and 34 searches did not match the name
of a filing entity. DHS assumes filing entities not found in the online
databases are likely to be small entities. DHS also assumes all of the
non-matched entities as small entities for the purpose of this
analysis. Among the 266 matches for Form I-910, DHS determined 189 to
be small entities based on their revenue or employee count and
according to their NAICS code. Therefore, DHS was able to classify 270
of 300 entities as small entities that filed Form I-910 applications,
including combined non-matches (34), matches missing data (47), and
small entity matches (189). DHS also used the subscription-based,
online databases mentioned above (Hoover's, Manta, Cortera, and
Guidestar), and the 8 matches missing data that were found in the
databases lacked revenue or employee count statistics.
DHS determined that 270 out of 300 (90 percent) entities filing
Form I-910 applications were small entities. Furthermore, DHS
determined that 189 of the 300 entities searched were small entities
based on sales revenue data, which were needed in order to estimate the
economic impact of this final rule. Since the 189 entities were a small
entity subset of the random sample of 300 entity searches, they were
statistically significant in the context of this research.
Similar to the Forms I-129 and I-140, DHS calculated the economic
impact of this rule on entities that filed Form I-910 by estimating
estimated the total savings associated with the final fee decrease for
each entity and divided that amount by sales revenue of that entity.
Among the 189 small entities with reported revenue data, all
experienced an economic impact considerably less than 1.0 percent. The
greatest economic impact imposed by this final fee change totaled -1.50
percent and the smallest totaled -0.001 percent. The average impact on
all 189 small entities with revenue data was -0.116 percent. The
decreased fee will create cost savings for the individual applicant of
$150. The negative number represents cost savings to the applicant.
Therefore, the larger it is, the greater the cost savings for the
applicants. The evidence suggests that the decreased fee by this final
rule does not represent a significant economic impact on these
entities.
d. Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360
DHS is increasing the fee for applicants who file using Form I-360
from $435 to $450, an increase of $15 (4 percent), including entities
who petition on behalf of foreign religious workers. Using a 12-month
period of data on the number of Form I-360 petitions filed from October
1, 2016 to September 31, 2017, DHS collected internal data on filings
of Form I-360 petitioners who file for foreign religious workers. The
total number of Form I-360 petitions was 2,446, with 760 unique
entities that filed petitions. DHS used the same databases mentioned
previously to search for information on revenue and employee count.
DHS used the same method as with Forms I-129 and I-140 to conduct
the SEA based on a representative sample of the impacted population. To
identify a representative sample, DHS used a standard statistical
formula to determine a minimum sample size of 332 entities, which
included using with a 95 percent confidence level and a 5 percent
confidence interval on a population of 760 unique entities for Form I-
360 petitions. To account for missing organizations in the online
subscription and public databases, DHS selected a sample size that was
approximately 27 percent larger than the necessary minimum to allow for
non-matches (filing entities that could not be found in any of the four
databases). Therefore, DHS conducted searches on 420 randomly selected
entities from a population of 760 unique entities that filed Form I-360
petitions.
Of the 420 searches for small entities that filed Form I-360
petitions, 415 searches successfully matched the name of the filing
entity to names in the databases and 5 searches did not match the name
of the filing entities in the databases. DHS assumes that filing
entities not found in the online databases are likely to be small
entities. As a result, in order to prevent underestimating the number
of small

[[Page 46903]]

entities this rule would affect, DHS conservatively assumes to consider
all of the non-matched entities as small entities for the purpose of
this analysis. Among the 415 matches for Form I-360, DHS determined 309
to be small entities based on revenue or employee count and according
to their NAICS code. Therefore, DHS was able to classify 388 of 420
entities as small entities that filed Form I-360 petitions, including
combined non-matches (5), matches missing data (74), and small entity
matches (309). DHS also used the subscription-based, online databases
mentioned above (Hoover's, Manta, Cortera, and Guidestar), the 74
matches missing data that were found in the databases lacked revenue or
employee count data.
DHS determined that 388 out of 420 (92.4 percent) entities filing
Form I-360 petitions were small entities. Furthermore, DHS determined
that 309 of the 420 searched were small entities based on sales revenue
data, which were needed to estimate the economic impact of this final
rule. Since 309 small entities were a subset of the random sample of
420 entity searches, they were statistically significant in the context
of this research.
Similar to other forms analyzed in this RFA, DHS calculated the
economic impact of this rule on entities that filed Form I-360 by
estimating the total costs associated with the final fee increase for
each entity. Among the 309 small entities with reported revenue data,
each would experience an economic impact considerably less than 1.0
percent. The greatest economic impact imposed by this final fee change
totaled 0.35 percent and the smallest totaled 0.000002 percent. The
average impact on all 309 small entities with revenue data was 0.01
percent.
DHS also analyzed the final costs of this rule on the petitioning
entities relative to the costs of the typical employee's salary.
Guidelines suggested by the SBA Office of Advocacy indicate that the
impact of a rule could be significant if the cost of the regulation
exceeds 5 percent of the labor costs of the entities in the
sector.\153\ According to the Bureau of Labor Statistics (BLS), the
mean annual salary is $53,290 for clergy,\154\ $46,980 for directors of
religious activities and education,\155\ and $35,860 for other
religious workers.\156\ Based on an average of 1.5 religious workers
\157\ petitioned for per entity, the additional average annual cost
would be $22 per entity.\158\ The additional costs per entity in this
final rule represent only 0.04 percent of the average annual salary for
clergy, 0.05 percent of the average annual salary for directors of
religious activities and education, and 0.06 percent of the average
annual salary for all other religious workers.\159\ Therefore, using
average annual labor cost guidelines, the additional regulatory
compliance costs in this final rule are not significant.
---------------------------------------------------------------------------

\153\ Office of Advocacy, Small Business Administration, ``A
Guide for Government Agencies, How to Comply with the Regulatory
Flexibility Act'', page 19: https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf
\154\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Clergy'': https://www.bls.gov/oes/2018/may/oes212011.htm
\155\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Directors of
Religious Activities and Education'': https://www.bls.gov/oes/2018/may/oes212099.htm
\156\ Bureau of Labor Statistics, U.S. Department of Labor,
``Occupational Employment Statistics, May 2018, ``Religious Workers,
All Other'': https://www.bls.gov/oes/2018/may/oes212099.htm.
\157\ USCIS calculated the average filing per entity of 1.5
petitions, from the Form I-360 Sample with Petition Totals in
Appendix E, of the SEA for the U.S. Citizenship and Immigration
Services Fee Schedule NPRM. Calculation: (total number of petitions
from each sample id)/(total number of sample Form I-360 petitions) =
618/420 = 1.5 average petitions filed per entity.
\158\ Calculation: 1.5 average petitions per entity * $15
increase in petition fees = approximately $22 additional total cost
per entity.
\159\ Calculation: $22 per entity/$53,290 clergy salary x 100 =
.04 percent;
$22 per entity/$46,980 directors of religious activities and
education x 100 = .05 percent;
$22 per entity/$35,860 other religious workers x 100 = .06
percent.
---------------------------------------------------------------------------

e. Genealogy Requests. Genealogy Index Search Request Form G-1041 and
Genealogy Record Request, Form G-1041A
DHS is increasing the fee to file both types of genealogy requests:
Form G-1041, Genealogy Index Search Request, and Form G-1041A,
Genealogy Record Request. The fee to file Form G-1041 will increase
from $65 to $170, an increase of $105 (162 percent increase) for those
who mail in this request on paper. In this rule, increases the fee for
requestors who use the online electronic Form G-1041 version from the
current $65 to $160, an increase of $95 (146 percent). The fee for Form
G-1041A will increase from $65 to $265, an increase of $200 (308
percent) for those who mail in this request on paper. The fee for Form
G-1041A is increasing from $65 to $255, an increase of $190 (292
percent) for those who use the electronic form.
Based on DHS records for calendar years 2013 to 2017, there was an
annual average of 3,840 genealogy index search requests made using Form
G-1041 and there was an annual average of 2,152 genealogy records
requests made using Form G-1041A. DHS does not have sufficient data on
the requestors for the genealogy forms to determine if entities or
individuals submitted these requests.
DHS has previously determined that individuals usually make
requests for historical records.\160\ If professional genealogists and
researchers submitted such requests in the past, they did not identify
themselves as commercial requestors and, therefore, DHS could not
separate these data from the dataset. Genealogists typically advise
clients on how to submit their own requests. For those that submit
requests on behalf of clients, DHS does not know the extent to which
they can pass along the fee increases to their individual clients.
Therefore, DHS currently does not have sufficient data to definitively
assess the impact on small entities for these requests.
---------------------------------------------------------------------------

\160\ See ``Establishment of a Genealogy Program; Proposed
Rule,'' 71 FR 20357--20368 (April 20, 2006). Available at: https://www.regulations.gov/document?D=USCIS-2006-0013-0001.
---------------------------------------------------------------------------

However, DHS must still recover the full costs of this program. As
stated in the preamble to this rule, reducing the filing fee for any
one benefit request submitted to DHS simply transfers the additional
cost to process this request to other immigration and naturalization
filing fees.
For this rule, DHS is expanding the use of electronic genealogy
requests to encourage requesters to use the electronic versions of Form
G-1041 and Form G-1041A. DHS is changing the search request process so
that USCIS may provide requesters with electronic records, if they
exist, in response to the initial index request. These final changes
may reduce the time it takes to request and receive genealogy records,
and, in some cases, it will eliminate the need to make multiple search
requests and submit separate fees. Moreover, DHS notes that providing
digital records in response to a Form G-1041 request may reduce the
number of Form G-1041A requests that will be filed because there would
already be a copy of the record if it was previously digitized. As a
result, the volume of Form G-1041A requests USCIS receives may
decrease, though DHS is unable to estimate by how much. DHS recognizes
that some small entities may be impacted by these proposed increased
but cannot determine how many or the exact impact.
DHS recognizes that some small entities may be impacted by these
increased fees but cannot determine how many or the exact impact.

[[Page 46904]]

f. Regional Center Under the Immigrant Investor Program, Form I-924 and
I-924A
As part of the Immigration Act of 1990, Public Law 101-649, 104
Stat. 4978 (Nov. 29, 1990), Congress established the EB-5 immigrant
visa classification to incentivize employment creation in the United
States. Under the EB-5 program, lawful permanent resident (LPR) status
is available to foreign nationals who invest the required amount in a
new commercial enterprise that will create at least 10 full-time jobs
in the United States. See INA section 203(b)(5), 8 U.S.C. 1153(b)(5). A
foreign national may also invest a lower amount in a targeted
employment area defined to include rural areas and areas of high
unemployment. Id.; 8 CFR 204.6(f). The INA allots 9,940 immigrant visas
each fiscal year for foreign nationals seeking to enter the United
States under the EB-5 classification.\161\ See INA section 201(d), 8
U.S.C. 1151(d); INA section 203(b)(5), 8 U.S.C. 1153(b)(5). Not fewer
than 3,000 of these visas must be reserved for foreign nationals
investing in targeted employment areas. See INA section 203(b)(5)(B), 8
U.S.C. 1153(b)(5)(B).
---------------------------------------------------------------------------

\161\ An immigrant investor, his or her spouse, and children (if
any) will each use a separate visa number.
---------------------------------------------------------------------------

Enacted in 1992, section 610 of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act of 1993, Public Law 102-395, 106 Stat. 1828 (Oct. 6, 1992),
established a pilot program that requires the allocation of a limited
number of EB-5 immigrant visas to individuals who invest through DHS-
designated regional centers.\162\ Under the Regional Center Program,
foreign nationals base their EB-5 petitions on investments in new
commercial enterprises located within USCIS-designated ``regional
centers.'' DHS regulations define a regional center as an economic
unit, public or private, that promotes economic growth, including
increased export sales, improved regional productivity, job creation,
and increased domestic capital investment. See 8 CFR 204.6(e). While
all EB-5 petitioners go through the same petition process, those
petitioners participating in the Regional Center Program may meet
statutory job creation requirements based on economic projections of
either direct or indirect job creation, rather than only on jobs
directly created by the new commercial enterprise. See 8 CFR
204.6(j)(4)(iii), (m)(3). As of August 12, 2019, there were 826 USCIS-
approved Regional Centers.\163\ Requests for regional center
designation must be filed with USCIS on Form I-924, Application for
Regional Center Designation Under the Immigrant Investor Program. See 8
CFR 204.6(m)(3)-(4). Once designated, regional centers must provide
USCIS with updated information to demonstrate continued eligibility for
the designation by submitting a Form I-924A, Annual Certification of
Regional Center, on an annual basis or as otherwise requested. See 8
CFR 204.6(m)(6)(i)(B).
---------------------------------------------------------------------------

\162\ Current law requires that DHS annually set aside 3,000 EB-
5 immigrant visas for regional center investors. Public Law 105-119,
sec. 116, 111 Stat. 2440 (Nov. 26, 1997). If this full annual
allocation is not used, remaining visas may be allocated to foreign
nationals who do not invest in regional centers.
\163\ USCIS Immigrant Investor Regional Centers: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers (last reviewed/updated Aug. 20, 2019).
---------------------------------------------------------------------------

DHS will not adjust the fee for Form I-924. The current fee to file
Form I-924 is $17,795. However, DHS is increasing the fee for Form I-
924A from $3,035 to $4,465 per filing, an increase of $1,430 (47
percent). Using a 12-month period of data on the number of Forms I-924
and I-924A from October 1, 2016 to September 31, 2017, DHS collected
internal data on these forms. DHS received a total of 280 Form I-924
applications and 847 Form I-924A applications.
Regional centers are difficult to assess because there is a lack of
official data on employment, income, and industry classification for
these entities. It is difficult to determine the small entity status of
regional centers without such data. Such a determination is also
difficult because regional centers can be structured in a variety of
different ways and can involve multiple business and financial
activities, some of which may play a direct or indirect role in linking
investor funds to new commercial enterprises and job-creating projects
or entities.
Regional centers also pose a challenge for analysis as the
structure is often complex and can involve many related business and
financial activities not directly involved with EB-5 activities.
Regional centers can be made up of several layers of business and
financial activities that focus on matching foreign investor funds to
development projects to capture above market return differentials. In
the past, DHS has attempted to treat the regional centers similar to
the other entities in this analysis. DHS was not able to identify most
of the entities in any of the public or private databases. Furthermore,
while regional centers are an integral component of the EB-5 program,
DHS does not collect data on the administrative fees the regional
centers charge to the foreign investors who are investing in one of
their projects. DHS did not focus on the bundled capital investment
amounts (either $900,000 for TEA projects or $1.8 million for a non-TEA
projects per investor) \164\ that get invested into an NCE. Such
investments amounts are not necessarily indicative of whether the
regional center is appropriately characterized as a small entity for
purposes of the RFA. Due to the lack of regional center revenue data,
DHS assumes regional centers collect revenue primarily through the
administrative fees charged to investors.
---------------------------------------------------------------------------

\164\ U.S. Department of Homeland Security, USCIS--EB-5
Immigrant Investor Program Modernization, Final Rule. See 84 FR
35750. Dated July 24, 2019. Available at https://www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/2019-15000.pdf. This amount by
investor is determined between a designated Target Employment Area
and non-Target Employment Area.
---------------------------------------------------------------------------

The information provided by regional centers as part of the Forms
I-924 and I-924A does not include adequate data to allow DHS to
reliably identify the small entity status of individual applicants.
Although regional center applicants typically report the NAICS codes
associated with the sectors they plan to direct investor funds toward,
these codes do not necessarily apply to the regional centers
themselves. In addition, information provided to DHS concerning
regional centers generally does not include regional center revenues or
employment.
DHS was able to obtain some information under some specific
assumptions in an attempt to analyze the small entity status of
regional centers.\165\ In the DHS final rule ``EB-5 Immigrant Investor
Program Modernization,'' DHS analyzed the estimated administrative fees
and revenue amounts for regional centers. DHS found both the mean and
median for administrative fees to be $50,000 and the median revenue
amount to be $1,250,000 over the period fiscal years 2014 to 2017. DHS
does not know the extent to which these regional centers can pass along
the fee increases to the individual investors. Passing along the costs
from this rule can reduce or eliminate the economic impacts to the
regional centers. While DHS cannot definitively claim there is no
significant economic impact to these small entities

[[Page 46905]]

based on existing information, DHS would assume existing regional
centers with revenues equal to or less than $446,500 per year (some of
which DHS assumes would be derived from administrative fees charged to
individual investors) could experience a significant economic impact.
If DHS assumes a fee increase that represents 1 percent of annual
revenue is a ``significant'' economic burden under the RFA.\166\
---------------------------------------------------------------------------

\165\ The methodology used to analyze the small entity status of
regional centers is explained in further detail in Section D of the
RFA section within DHS final rule ``EB-5 Immigrant Investor Program
Modernization,'' available at 84 FR 35750.
\166\ Calculation: 1 percent of $446,500 = $4,465 (the new fee
for Form I-924A).
---------------------------------------------------------------------------

e. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
This final rule imposed lower or higher fees for filers of Forms I-
129. DHS is changing the following fees for new Forms I-129 (separated
into new forms by worker type). The new fee structure as it applies to
the small entities outline above, resulting the following fees: I-129H1
($555), I-129H2A (Named Beneficiaries, $850) I-129H2A (Unnamed
Beneficiaries, $415), I-129H2B (Named, $715), I-129H2B (Unnamed, $385),
I-129O ($705), I-129L ($805), I-129CW ($695), I-129E&TN ($695), I-
129MISC (Includes H-3, P, Q, or R Classifications, $695), I-140 ($555),
I-910 ($635), I-924 ($17,795), I-924A ($4,465), Form I-360 ($450), G-
1041 ($170 paper, $160 online) and G-1041A ($265 paper, $255 online).
This final rule does not require any new professional skills for
reporting.
f. Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered By the Agency Which Affect the
Impact on Small Entities Was Rejected
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including services provided without charge to
asylum applicants and certain other applicants. In addition, DHS must
fund the costs of providing services without charge by using a portion
of the filing fees collected for other immigration benefits. Without an
increase in fees, DHS will not be able to maintain the level of service
for immigration and naturalization benefits that it now provides. DHS
has considered the alternative of maintaining fees at the current level
with reduced services and increased processing times but has determined
that this will not be in the interest of applicants and petitioners.
Therefore, this alternative was rejected. While most immigration
benefit fees apply to individuals, as described previously, some also
apply to small entities. DHS seeks to minimize the impact on all
parties, but in particular small entities.
Another alternative to the increased economic burden of the fee
adjustment is to maintain fees at their current level for small
entities. The strength of this alternative is that it assures that no
additional fee-burden is placed on small entities; however, small
entities will experience negative effects due to the service reductions
that will result in the absence of the fee adjustments in this final
rule. Without the fee adjustments provided in this final rule,
significant operational changes to USCIS would be necessary. Given
current filing volume considerations, DHS requires additional revenue
to prevent immediate and significant cuts in planned spending. These
spending cuts would include reductions in areas such as Federal and
contract staff, infrastructure spending on information technology and
facilities, and training. Depending on the actual level of workload
received, these operational changes could result in longer processing
times, a degradation in customer service, and reduced efficiency over
time. These cuts would ultimately represent an increased cost to small
entities by causing delays in benefit processing and reductions in
customer service.
For reasons explained more fully elsewhere in the preamble to the
final rule, DHS chose the approach contained in this final rule.

C. Congressional Review Act

DHS has sent this final rule to the Congress and to the Comptroller
General under the Congressional Review Act, 5 U.S.C. 801 et seq. The
Administrator of the Office of Information and Regulatory Affairs has
determined that this final rule is a ``major rule'' within the meaning
of the Congressional Review Act. This rule will would be effective at
least 60 days after the date on which Congress receives a report
submitted by DHS under the Congressional Review Act, or 60 days after
the final rule's publication, whichever is later.

D. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for
inflation to 2019 levels by the Consumer Price Index for All Urban
Consumers (CPI-U) is approximately $168 million based on the Consumer
Price Index for All Urban Consumers.\167\
---------------------------------------------------------------------------

\167\ See U.S. Bureau of Labor Statistics, Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All
Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited June 2, 2020).
Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2019 - Average monthly CPI-U for 1995)/(Average monthly
CPI-U for 1995)] * 100 = [(255.657 - 152.383)/152.383] * 100 =
(103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent
(rounded)
Calculation of inflation-adjusted value: $100 million in 1995
dollars * 1.68 = $168 million in 2019 dollars.
---------------------------------------------------------------------------

While this final rule may result in the expenditure of more than
$100 million by the private sector annually, the rulemaking is not a
``Federal mandate'' as defined for UMRA purposes.\168\ The payment of
immigration benefit fees by individuals or other private sector
entities is, to the extent it could be termed an enforceable duty, one
that arises from participation in a voluntary Federal program, applying
for immigration status in the United States.\169\ This final rule does
not contain such a mandate. The requirements of Title II of UMRA,
therefore, do not apply, and DHS has not prepared a statement under
UMRA.
---------------------------------------------------------------------------

\168\ See 2 U.S.C. 658(6).
\169\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

This final rule does not have federalism implications because it
does 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

[[Page 46906]]

accordance with section 6 of Executive Order 13132, it is determined
that this final rule does not have sufficient federalism implications
to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This final rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This final rule was written to provide a
clear legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this final rule meets the applicable standards provided in section 3 of
E.O. 12988.

G. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments

This final rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.

H. Family Assessment

Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Agencies must assess whether the regulatory action: (1) Impacts the
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) if the regulatory action financially impacts
families, are justified; (6) may be carried out by State or local
government or by the family; and (7) establishes a policy concerning
the relationship between the behavior and personal responsibility of
youth and the norms of society. If the determination is affirmative,
then the Agency must prepare an impact assessment to address criteria
specified in the law. DHS has no data that indicates that the rule will
have any impacts on disposable income or the poverty of certain
families and children, including U.S. citizen children. A family may
have to delay applying until they have saved funds for a fee set by
this final rule, or pay the fee using a credit card. Nevertheless, DHS
believes that the benefits of the new fees justify the financial impact
on the family. DHS determined that this rulemaking's impact is
justified and no further actions are required. DHS also determined that
this final rule will not have any impact on the autonomy or integrity
of the family as an institution.

I. National Environmental Policy Act (NEPA)

This final rule adjusts certain immigration and naturalization
benefit request fees charged by USCIS. It also makes changes related to
setting, collecting, and administering fees. Fee schedule adjustments
are necessary to recover the full operating costs associated with
administering the nation's lawful immigration system, safeguarding its
integrity and promise by efficiently and fairly adjudicating requests
for immigration benefits, while protecting Americans, securing the
homeland, and honoring our values. This final rule also makes certain
adjustments to fee waiver eligibility, filing requirements for
nonimmigrant workers, premium processing service, and other
administrative requirements.
DHS analyzes actions to determine whether NEPA applies to them and
if so what degree of analysis is required. DHS Directive (Dir) 023-01
Rev. 01 and Instruction Manual (Inst.) 023-01-001 Rev. 01 establish the
procedures that DHS and its components use to comply with NEPA and the
Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal
agencies to establish, with CEQ review and concurrence, categories of
actions (``categorical exclusions'') which experience has shown do not
individually or cumulatively have a significant effect on the human
environment and, therefore, do not require an Environmental Assessment
(EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii),
1508.4. DHS Instruction 023-01-001 Rev. 01 establishes such Categorical
Exclusions that DHS has found to have no such effect. Inst. 023-01-001
Rev. 01 Appendix A Table 1. For an action to be categorically excluded,
DHS Inst. 023-01-001 Rev. 01 requires the action to satisfy each of the
following three conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions;
(2) the action is not a piece of a larger action; and
(3) no extraordinary circumstances exist that create the potential
for a significant environmental effect. Inst. 023-01-001 Rev. 01
section V.B(1)-(3).
DHS has analyzed this action and has concluded that NEPA does not
apply due to the excessively speculative nature of any effort to
conduct an impact analysis. This final rule fits within the Categorical
Exclusion found in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1,
number A3(d): ``Promulgation of rules . . . that interpret or amend an
existing regulation without changing its environmental effect.'' This
final rule is not part of a larger action. This final rule presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this final rule is categorically
excluded from further NEPA review.

J. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS
must submit to OMB, for review and approval, any reporting requirements
inherent in a rule, unless they are exempt. See Public Law 104-13, 109
Stat. 163 (May 22, 1995). The Information Collection table 11 below
shows the summary of forms that are part of this rulemaking.

Table 11--Information Collection
----------------------------------------------------------------------------------------------------------------
Type of information
OMB No. Form No. Form name collection.
----------------------------------------------------------------------------------------------------------------
1615-0105............................ G-28................... Notice of Entry of No material or non-
Appearance as Attorney substantive change to
or Accredited a currently approved
Representative. collection.
1615-0096............................ G-1041................. Genealogy Index Search No material or non-
Request. substantive change to
a currently approved
collection.
G-1041A................ Genealogy Records
Request (For each
microfilm or hard copy
file).

[[Page 46907]]

1615-0079............................ I-102.................. Application for No material or non-
Replacement/Initial substantive change to
Nonimmigrant Arrival- a currently approved
Departure Document. collection.
1615-0111............................ I-129CW................ Petition for a CNMI- No material or non-
Only Nonimmigrant substantive change to
Transitional Worker. a currently approved
collection.
I-129CWR............... Semiannual Report for
CW-1 Employers.
1615-0146............................ I-129E&TN.............. Application for New Collection.
Nonimmigrant Worker: E
and TN Classifications.
1615-0001............................ I-129F................. Petition for Alien No material or non-
Fianc[eacute](e). substantive change to
a currently approved
collection.
1615-0009............................ I-129H1................ Petition for Revision of a Currently
Nonimmigrant Worker: H- Approved Collection.
1 Classifications.
1615-0150............................ I-129H2A............... Petition for New Collection.
Nonimmigrant Worker: H-
2A Classification.
1615-0149............................ I-129H2B............... Petition for New Collection.
Nonimmigrant Worker: H-
2B Classification.
1615-0147............................ I-129L................. Petition for New Collection.
Nonimmigrant Worker: L
Classifications.
1615-0145............................ I-129MISC.............. Petition for New Collection.
Nonimmigrant Worker: H-
3, P, Q, or R
Classifications.
1615-0148............................ I-129O................. Petition for New Collection.
Nonimmigrant Worker: O
Classifications.
1615-0012............................ I-130.................. Petition for Alien No material or non-
Relative. substantive change to
a currently approved
collection.
I-130A................. Supplemental
Information for Spouse
Beneficiary.
1615-0013............................ I-131.................. Application for Travel Revision of a Currently
Document. Approved Collection.
1615-0135............................ I-131A................. Application for Travel Revision of a Currently
Document (Carrier Approved Collection.
Documentation).
1615-0015............................ I-140.................. Immigrant Petition for No material or non-
Alien Worker. substantive change to
a currently approved
collection.
1615-0016............................ I-191.................. Application for Relief No material or non-
Under Former Section substantive change to
212(c) of the a currently approved
Immigration and collection.
Nationality Act.
1615-0017............................ I-192.................. Application for Advance No material or non-
Permission to Enter as substantive change to
Nonimmigrant. a currently approved
collection.
1615-0018............................ I-212.................. Application for No material or non-
Permission to Reapply substantive change to
for Admission Into the a currently approved
United States After collection.
Deportation or Removal.
1615-0095............................ I-290B................. Notice of Appeal or No material or non-
Motion. substantive change to
a currently approved
collection.
1615-0020............................ I-360.................. Petition for Amerasian, No material or non-
Widow(er), or Special substantive change to
Immigrant. a currently approved
collection.
1615-0023............................ I-485.................. Application to Register No material or non-
Permanent Residence or substantive change to
Adjust Status. a currently approved
collection.
I-485A................. Supplement A to Form I-
485, Adjustment of
Status Under Section
245(i).
I-485J................. Confirmation of Bona
Fide Job Offer or
Request for Job
Portability Under INA
Section 204(j).
1615-0026............................ I-526.................. Immigrant Petition by No material or non-
Alien. substantive change to
a currently approved
collection.
1615-0003............................ I-539.................. Application to Extend/ No material or non-
Change Nonimmigrant substantive change to
Status. a currently approved
collection.
1615-0003............................ I-539A................. Supplemental No material or non-
Information for substantive change to
Application to Extend/ a currently approved
Change Nonimmigrant collection.
Status.
1615-0067............................ I-589.................. Application for Asylum Revision of a Currently
and for Withholding of Approved Collection.
Removal.
1615-0028............................ I-600.................. Petition to Classify Revision of a Currently
Orphan as an Immediate Approved Collection.
Relative.
I-600A................. Application for Advance
Processing of an
Orphan Petition.
I-600/A SUPP1.......... Form I-600A/I-600
Supplement 1, Listing
of Adult Member of the
Household.
I-600/A SUPP2.......... Form I-600A/I-600
Supplement 2, Consent
to Disclose
Information.
I-600/A SUPP3.......... Form I-600A/I-600
Supplement 3, Request
for Action on Approved
Form I-600A/I-600.
1615-0029............................ I-601.................. Application for Waiver No material or non-
of Grounds of substantive change to
Inadmissibility. a currently approved
collection.
1615-0123............................ I-601A................. Application for No material or non-
Provisional Unlawful substantive change to
Presence Waiver. a currently approved
collection.

[[Page 46908]]

1615-0030............................ I-612.................. Application for Waiver No material or non-
of the Foreign substantive change to
Residence Requirement a currently approved
(Under Section 212(e) collection.
of the INA, as
Amended).
1615-0032............................ I-690.................. Application for Waiver No material or non-
of Grounds of substantive change to
Inadmissibility. a currently approved
collection.
1615-0034............................ I-694.................. Notice of Appeal of No material or non-
Decision Under substantive change to
Sections 245A or 210 a currently approved
of the Immigration and collection.
Nationality Act.
1615-0035............................ I-698.................. Application to Adjust No material or non-
Status From Temporary substantive change to
to Permanent Resident a currently approved
(Under Section 245A of collection.
the INA).
1615-0038............................ I-751.................. Petition to Remove No material or non-
Conditions on substantive change to
Residence. a currently approved
collection.
1615-0040............................ I-765.................. Application for Revision of a Currently
Employment Approved Collection.
Authorization.
1615-0005............................ I-817.................. Application for No material or non-
Benefits Under the substantive change to
Family Unity Program. a currently approved
collection.
1615-0043............................ I-821.................. Application for No material or non-
Temporary Protected substantive change to
Status. a currently approved
collection.
1615-0044............................ I-824.................. Application for Action No material or non-
on an Approved substantive change to
Application or a currently approved
Petition. collection.
1615-0045............................ I-829.................. Petition by Investor to No material or non-
Remove Conditions on substantive change to
Permanent Resident a currently approved
Status. collection.
1615-0072............................ I-881.................. Application for No material or non-
Suspension of substantive change to
Deportation or Special a currently approved
Rule Cancellation of collection.
Removal (Pursuant to
Sec. 203 of Pub. L.
105-100).
1615-0082............................ I-90................... Application to Replace No material or non-
Permanent Resident substantive change to
Card. a currently approved
collection.
1615-0048............................ I-907.................. Request for Premium No material or non-
Processing Service. substantive change to
a currently approved
collection.
1615-0114............................ I-910.................. Application for Civil No material or non-
Surgeon Designation. substantive change to
a currently approved
collection.
1615-0116............................ I-912.................. Request for Fee Waiver. Revision of a Currently
Approved Collection.
1615-0099............................ I-914.................. Application for T No material or non-
nonimmigrant status. substantive change to
a currently approved
collection.
1615-0104............................ I-918.................. Petition for U No material or non-
nonimmigrant status. substantive change to
a currently approved
collection.
1615-0061............................ I-924.................. Application for No material or non-
Regional Designation substantive change to
Center Under the a currently approved
Immigrant Investor collection.
Program.
I-924A................. Annual Certification of
Regional Center.
1615-0106............................ I-929.................. Petition for Qualifying No material or non-
Family Member of a U-1 substantive change to
Nonimmigrant. a currently approved
collection.
1615-0136............................ I-941.................. Application for No material or non-
Entrepreneur Parole. substantive change to
a currently approved
collection.
1615-0133............................ I-942.................. Application for Reduced Discontinuation
Fee.
1615-0122............................ Immigrant Fee.......... Fee paid for immigrant No material or non-
visa processing. substantive change to
a currently approved
collection.
1615-0050............................ N-336.................. Request for a Hearing No material or non-
on a Decision in substantive change to
Naturalization a currently approved
Proceedings Under collection.
Section 336.
1615-0052............................ N-400.................. Application for No material or non-
Naturalization. substantive change to
a currently approved
collection.
1615-0056............................ N-470.................. Application to Preserve No material or non-
Residence for substantive change to
Naturalization a currently approved
Purposes. collection.
1615-0091............................ N-565.................. Application for No material or non-
Replacement of substantive change to
Naturalization/ a currently approved
Citizenship Document. collection.
1615-0057............................ N-600.................. Application for No material or non-
Certification of substantive change to
Citizenship. a currently approved
collection.
1615-0087............................ N-600K................. Application for No material or non-
Citizenship and substantive change to
Issuance of a currently approved
Certificate under collection.
Section 322.
----------------------------------------------------------------------------------------------------------------

Various USCIS Forms
This final rule will require non-substantive edits to the forms
listed above where the Type of Information Collection column states,
``No material/non-substantive change to a currently approved
collection.'' These edits include: Updates to the fees collected,
including changes to the collection of biometric services fees;
modification of various form instructions to conform with changes to
USCIS Form I-912; modification to USCIS Form N-400 to conform with the
discontinuation of USCIS Form I-942; modification to various form
instructions to conform with changes to the conditions for fee
exemptions; removal of the returned check fee; text clarifying that a
second presentment is limited to NSF checks, addition of language
regarding delivery requirements of certain secured documents; general
language modification of fee activities within various USCIS forms.
Accordingly, USCIS has submitted a Paperwork Reduction Act Change
Worksheet, Form

[[Page 46909]]

OMB 83-C, and amended information collection instruments to OMB for
review and approval in accordance with the PRA.\170\
---------------------------------------------------------------------------

\170\ As stated earlier DHS is removing the $30 fee for
dishonored fee payment instruments. EOIR will make conforming
changes to its affected forms separately. . .
---------------------------------------------------------------------------

USCIS Form I-129H1
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for a Nonimmigrant
Worker: H-1B Classifications.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129H1; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested nonimmigrant classification
and/or requests to extend or change nonimmigrant status. An employer
(or agent, where applicable) uses this form to petition USCIS for
classification of an alien as an H-1B nonimmigrant. An employer (or
agent, where applicable) also uses this form to request an extension of
stay of an H-1B or H-1B1 nonimmigrant worker or to change the status of
an alien currently in the United States as a nonimmigrant to H-1B or H-
1B1. The form serves the purpose of standardizing requests for H-1B and
H-1B1 nonimmigrant workers and ensuring that basic information required
for assessing eligibility is provided by the petitioner while
requesting that beneficiaries be classified under the H-1B or H-1B1
nonimmigrant employment categories. It also assists USCIS in compiling
information required by Congress annually to assess effectiveness and
utilization of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-129H1
is 402,034 and the estimated hour burden per response is 4 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 1,608,136 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $207,047,510.
USCIS Form I-129H2A
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for a Nonimmigrant
Worker: H-2A Classifications.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129H2A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested H-2A nonimmigrant petition and/
or requests to extend or change nonimmigrant status. An employer or
agent uses this form to petition USCIS for classification of an alien
as an H-2A nonimmigrant. An employer or agent also uses this form to
request an extension of stay or change of status on behalf of the alien
worker. The form serves the purpose of standardizing requests for H-2A
nonimmigrant workers and ensuring that basic information required for
assessing eligibility is provided by the petitioner. It also assists
USCIS in compiling information required by Congress annually to assess
effectiveness and utilization of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-
129H2A is 12,008 and the estimated hour burden per response is 3 hours;
the estimated total number of respondents for the information
collection Named Worker Attachment for Form I-129H2A is 65,760 and the
estimated hour burden per response is 0.5 hours; the estimated total
number of respondents for the information collection Joint Employer
Supplement for Form I-129H2A is 5,000 and the estimated hour burden per
response is 0.167 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 69,739 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $6,184,120.
USCIS Form I-129H2B
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker:
H-2B Classification.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129H2B; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested H-2B nonimmigrant petition and/
or requests to extend or change nonimmigrant status. An employer or
agent uses this form to petition USCIS for classification of an alien
as an H-2B nonimmigrant. An employer or agent also uses this form to
request an extension of stay or change of status on behalf of the alien
worker. The form serves the purpose of standardizing requests for
nonimmigrant workers and ensuring that basic information required for
assessing eligibility is provided by the petitioner. It also assists
USCIS in compiling information required by Congress annually to assess
effectiveness and utilization of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-
129H2B is 6,340 and the estimated hour burden per response is 3 hours;
the estimated total number of respondents for the information
collection Named Worker Attachment for Form I-129H2B is 58,104 and the
estimated hour burden per response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 48,072 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $3,265,100.
USCIS Form I-129L
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker:
I-129L Classification.
(3) Agency form number, if any, and the applicable component of the
DHS

[[Page 46910]]

sponsoring the collection: I-129L; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on Form I-129L
to determine a petitioner and beneficiary's eligibility for L-1A and L-
1B classification. The form is also used to determine eligibility for
an LZ Blanket petition. An employer uses this form to petition USCIS
for classification of the beneficiary as an L-1 nonimmigrant. An
employer also uses this form to request an extension of stay or change
of status on behalf of the beneficiary. The form standardizes these
types of petitioners and ensures that the information required for
assessing eligibility is provided by the petitioner about themselves
and the beneficiary. The form also enables USCIS to compile data
required for an annual report to Congress assessing the effectiveness
and utilization of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-129L
is 42,871 and the estimated hour burden per response is 3 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 128,613 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $22,078,565.
USCIS Form I-129O
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker:
O Classification.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129O; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested nonimmigrant petition and/or
requests to extend or change nonimmigrant status. An employer or agent
uses this form to petition USCIS for classification of an alien as an O
nonimmigrant worker. An employer or agent also uses this form to
request an extension of stay or change of status on behalf of the alien
worker. The form serves the purpose of standardizing requests for
nonimmigrant workers and ensuring that basic information required for
assessing eligibility is provided by the petitioner while requesting
that beneficiaries be classified under certain nonimmigrant employment
categories. It also assists USCIS in compiling information required by
Congress annually to assess effectiveness and utilization of certain
nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-129O
is 25,516 and the estimated hour burden per response is 3 hours; the
estimated total number of respondents for the information collection
Attachment 1--Additional Beneficiary for Form I-129O is 1,189 and the
estimated hour burden per response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 77,143 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $13,140,740.
USCIS Form I-129MISC
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker:
H-3, P, Q, or R Classification.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129MISC; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested nonimmigrant classification
and/or requests to extend or change nonimmigrant status. An employer
(or agent, where applicable) uses this form to petition USCIS for
classification of an alien as an H-3, P, Q, or R nonimmigrant. An
employer (or agent, where applicable) also uses this form to request an
extension of stay of an H-3, P, Q, or R nonimmigrant worker or to
change the status of an alien currently in the United States as a
nonimmigrant to H-3, P, Q, or R. The form serves the purpose of
standardizing requests for H-3, P, Q, or R nonimmigrant workers, and
ensuring that basic information required for assessing eligibility is
provided by the petitioner while requesting that beneficiaries be
classified under the H-3, P, Q, or R nonimmigrant employment
categories. It also assists USCIS in compiling information required by
Congress annually to assess effectiveness and utilization of certain
nonimmigrant classification.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-
129MISC is 28,799 and the estimated hour burden per response is 3
hours; the estimated total number of respondents for the information
collection H-3 Classification Supplement to Form I-129MISC, Petition
for Nonimmigrant Worker: H-3, P, Q, or R Classification is 1,449 and
the estimated hour burden per response is 0.25 hours; the estimated
total number of respondents for the information collection P
Classification Supplement to Form I-129MISC is 18,524 and the estimated
hour burden per response is 0.5 hours; the estimated total number of
respondents for the information collection Q-1 International Cultural
Exchange Alien Supplement to Form I-129MISC is 295 and the estimated
hour burden per response is 0.167 hours; the estimated total number of
respondents for the information collection R-1 Classification
Supplement to Form I-129MISC is 1 and the estimated hour burden per
response is 1 hours; the estimated total number of respondents for the
information collection Attachment 1-Additional Beneficiary for Form I-
129MISC is 8,531 and the estimated hour burden per response is 0.5
hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 107,847 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $14,831,485.
USCIS Form I-129E&TN
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker:
E and TN Classification.
(3) Agency form number, if any, and the applicable component of the
DHS

[[Page 46911]]

sponsoring the collection: I-129E&TN; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit; Not-
for-profit institutions. USCIS uses the data collected on this form to
determine eligibility for the requested nonimmigrant classification
and/or requests to extend or change nonimmigrant status. An employer
agent, or applicant uses this form to apply to USCIS for classification
of an alien as an E-1, E-2, E-3, or TN nonimmigrant. An employer,
agent, applicant, or CNMI investor also uses this form to request an
extension of stay in one of these classifications for an alien or for
themselves, or to change the status of an alien currently in the United
States as a nonimmigrant or their own status if they are currently in
the United States as a nonimmigrant to E-1, E-2, E-3, or TN. The form
serves the purpose of standardizing requests for nonimmigrant workers
in these classifications and ensuring that basic information required
for assessing eligibility is provided by the applicant. It also assists
USCIS in compiling information required by Congress annually to assess
effectiveness and utilization of certain nonimmigrant classification.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-
129E&TN is 12,709 and the estimated hour burden per response is 3
hours; the estimated total number of respondents for the information
collection E-1/E-2 Classification Supplement to Form I-129E&TN is 4,236
and the estimated hour burden per response is 1.45 hours; the estimated
total number of respondents for the information collection E-3
Classification Supplement to Form I-129E&TN is 2,824 and the estimated
hour burden per response is 1 hours; the estimated total number of
respondents for the information collection NAFTA Supplement to Form I-
129E&TN is 7,349 and the estimated hour burden per response is 0.5
hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 50,768 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $6,545,135.
USCIS Form I-131
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Travel Document,
Form I-131; Extension, Without Change, of a Currently Approved
Collection.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-131; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Certain
aliens, principally permanent or conditional residents, refugees or
asylees, applicants for adjustment of status, aliens in Temporary
Protected Status (TPS), and aliens abroad seeking humanitarian parole
who need to apply for a travel document to lawfully enter or reenter
the United States. Lawful permanent residents may now file requests for
travel permits (transportation letter or boarding foil).
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-131 is
464,900 and the estimated hour burden per response is 1.9 hours; the
estimated total number of respondents for biometrics processing is
86,000 and the estimated hour burden per response is 1.17 hours, the
estimated total number of respondents for passport-style photos is
360,000 and the estimated hour burden per response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 1,163,930 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $143,654,100.
USCIS Form I-131A
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Carrier
Documentation.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-131A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the information provided on Form I-131A to verify the status of
permanent or conditional residents, and aliens traveling abroad on an
Advance Parole Document (Form I-512 or I-512L) or Employment
Authorization Documents (EAD) with travel endorsement (Form I-766) and
to determine whether the applicant is eligible for the requested travel
document.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-131A
is 5,100 and the estimated hour burden per response is .92 hours;
biometrics processing is 5,100 and the estimated hour burden per
response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 10,659 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $919,275.
USCIS Form I-589
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Asylum and for
Withholding of Removal.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-589; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. Form I-
589 is necessary to determine whether an alien applying for asylum and/
or withholding of removal in the United States is classified as a
refugee and is eligible to remain in the United States.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of USCIS respondents for the information collection in
Form I-589 is approximately 114,000, and the estimated annual
respondents for Form I-589 filed with DOJ is approximately 150,000. The
estimated hour burden per response is 13 hours per response; and the
estimated number of respondents providing biometrics to USCIS is
110,000, and to DOJ (collected on their behalf by USCIS) is 150,000.
The estimated hour burden per response for biometrics submissions is
1.17 hours.

[[Page 46912]]

(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection for USCIS is 1,610,700 hours, and for DOJ is
2,125,500.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information for USCIS is estimated to be
$46,968,000 and for DOJ is $61,800,000.
USCIS Form I-600, I-600A, Supplement 1, Supplement 2, Supplement 3
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition to Classify Orphan as an
Immediate Relative; Application for Advance Processing of an Orphan
Petition; Supplement 1, Listing of an Adult Member of the Household;
Supplement 2, Consent to Disclose Information; Supplement 3, Request
for Action on Approved Form I-600A/I-600.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form I-600, Form I-600A, Form I-600A/I-
600 Supplement 1, Form I-600A/I-600 Supplement 2, Form I-600A/I-600
Supplement 3; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. A U.S.
citizen prospective/adoptive parent may file a petition to classify an
orphan as an immediate relative under section 201(b)(2)(A) of the INA.
A U.S. citizen adoptive parent may file a petition to classify an
orphan as an immediate relative through Form I-600 under section
101(b)(1)(F) of the INA. A U.S. citizen prospective adoptive parent may
file Form I-600A in advance of the Form I-600 filing and USCIS will
make a determination regarding the prospective adoptive parent's
eligibility to file Form I-600A and his or her suitability and
eligibility to properly parent an orphan. If there are other adult
members of the U.S. citizen prospective/adoptive parent's household, as
defined at 8 CFR 204.301, the prospective/adoptive parent must include
Form I-600A/I-600 Supplement 1 when filing both Form I-600A and Form I-
600. A Form I-600A/I-600 Supplement 2, Consent to Disclose Information,
is an optional form that a U.S. citizen prospective/adoptive parent may
file to authorize USCIS to disclose case-related information that would
otherwise be protected under the Privacy Act, 5 U.S.C. 552a, to
adoption service providers or other individuals. Form I-600A/I-600
authorize d disclosures will assist USCIS in the adjudication of Forms
I-600A and I-600. USCIS has created a new Form I-600A/I-600 Supplement
3, Request for Action on Approved Form I-600A/I-600, for this
information collection. Form I-600A/I-600 Supplement 3 is a form that
prospective/adoptive parents must use if they need to request action
such as an extended or updated suitability determination based upon a
significant change in their circumstances or change in the number or
characteristics of the children they intend to adopt, a change in their
intended country of adoption, or a request for a duplicate notice of
their approved Form I-600A suitability determination.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-600
is 1,200 and the estimated hour burden per response is 1 hour; the
estimated total number of respondents for the information collection
Form I-600A is 2,000 and the estimated hour burden per response is 1
hour; the estimated total number of respondents for the information
collection Form I-600/I-600A Supplement 1 is 301 and the estimated hour
burden per response is 1 hour; the estimated total number of
respondents for the information collection Form I-600/I-600A Supplement
2 is 1,260 and the estimated hour burden per response is 0.25 hours;
the estimated total number of respondents for the information
collection Form I-600/I-600A Supplement 3 is 1,286 and the estimated
hour burden per response is 1 hours; the estimated total number of
respondents for the Home Study information collection is 2,500 and the
estimated hour burden per response is 25 hours; the estimated total
number of respondents for the Biometrics information collection is
2,520 and the estimated hour burden per response is 1.17 hours; the
estimated total number of respondents for the Biometrics--DNA
information collection is 2 and the estimated hour burden per response
is 6 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 70,562.40 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $7,759,232.
USCIS Form I-765
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application for Employment
Authorization.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-765; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses Form I-765 to collect information needed to determine if an alien
is eligible for an initial EAD, a new replacement EAD, or a subsequent
EAD upon the expiration of a previous EAD under the same eligibility
category. Aliens in many immigration statuses are required to possess
an EAD as evidence of work authorization.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-765 is
2,286,000 and the estimated hour burden per response is 4.5 hours; the
estimated total number of respondents for the information collection I-
765WS is 302,000 and the estimated hour burden per response is 0.5
hours; the estimated total number of respondents for the information
collection biometrics is 302,535 and the estimated hour burden per
response is 1.17 hours; the estimated total number of respondents for
the information collection passport photos is 2,286,000 and the
estimated hour burden per response is 0.5 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 11,934,966 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $400,895,820.
USCIS Form I-912
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Request for Fee Waiver.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-912; USCIS.

[[Page 46913]]

(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. USCIS
uses the data collected on this form to verify that the applicant is
unable to pay for the immigration benefit being requested. USCIS will
consider waiving a fee for an application or petition when the
applicant or petitioner clearly demonstrates he or she is eligible
based on 8 CFR 106.3. Form I-912 standardizes the collection and
analysis of statements and supporting documentation provided by the
applicant with the fee waiver request. Form I-912 also streamlines and
expedites USCIS' approval, or rejection of the fee waiver request by
clearly laying out the most salient data and evidence necessary for the
determination of inability to pay. Officers evaluate all information
and evidence supplied in support of a fee waiver request when making a
final determination. Each case is unique and is considered on its own
merits. If the fee waiver is granted, the application will be
processed. If the fee waiver is not granted, USCIS will notify the
applicant and instruct him or her to file a new application with the
appropriate fee.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-912 is
116,832 and the estimated hour burden per response is 2.33 hours; the
estimated total number of respondents for the information collection
DACA Exemptions is 108 and the estimated hour burden per response is
1.17 hours; the estimated total number of respondents for the
information collection Director's Exemption Provision in new 8 CFR
106.3(e) is 20 and the estimated hour burden per response is 1.17
hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 272,368 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $438,600.
USCIS Form I-942
This final rule discontinues the use of Form I-942, Request for
Reduced Fee, because DHS is eliminating the option to request a reduced
fee. Accordingly, USCIS has submitted a Paperwork Reduction Act Change
Worksheet, Form OMB 83-D, and amended information collection
instruments to OMB for review and approval in accordance with the PRA.

Differences in information collection request respondent volume and fee
model filing volume projections.
DHS acknowledges that the estimates of annual filing volume in the
PRA section of this preamble are not the same as those used in the ABC
model used to calculate the fee amounts in this rule. For example, the
fee calculation model estimates 163,000 annual Form I-589 filings while
the PRA section estimates the average annual number of respondents will
be 114,000. The model projects 2,455,000 Form I-765 filings while the
estimated total number of respondents for the information collection I-
765 is 2,096,000. As stated in the NPRM and section III.L.1 of this
preamble, the VPC forecasts USCIS workload volume based on short- and
long-term volume trends and time series models, historical receipts
data, patterns (such as level, trend, and seasonality) or correlations
with historical events to forecast receipts. Workload volume is used to
determine the USCIS resources needed to process benefit requests and is
the primary cost driver for assigning activity costs to immigration
benefits and biometric services in the USCIS ABC model. DHS uses a
different method for estimating the average annual number of
respondents for the information collection over the three-year OMB
approval of the control number, generally basing the estimate on the
average filing volumes in the previous 3 or 5 year period, with less
consideration of the volume effects of planned or past policy changes.
Nevertheless, when the information collection request is nearing
expiration, USCIS will update the estimates of annual respondents based
on actual filing volumes that occur after this final rule takes effect
in the submission to OMB. The PRA burden estimates are generally
updated at least every three years. Thus, DHS expects that the PRA
estimated annual respondents will be updated to reflect the actual
effects of this proposed rule within a relatively short period after a
final rule takes effect.

K. Signature

The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 103

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

8 CFR Part 106

Immigration, User fees.

8 CFR Part 204

Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.

8 CFR Part 211

Immigration, Passports and visas, Reporting and recordkeeping
requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping, requirements, Students.

8 CFR Part 216

Administrative practice and procedure, Aliens.

8 CFR Part 217

Air carriers, Aliens, Maritime carriers, Passports and visas.

8 CFR Part 223

Aliens, Refugees, Reporting and recordkeeping requirements.

8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirement.

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 240

Administrative practice and procedure, Aliens.

8 CFR Part 244

Administrative practice and procedure; Immigration.

8 CFR Parts 245 and 245a

Aliens, Immigration, Reporting and recordkeeping requirements.

[[Page 46914]]

8 CFR Parts 248 and 264

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 286

Air carriers, Immigration, Maritime carriers, Reporting and
recordkeeping requirements.

8 CFR Parts 301 and 319

Citizenship and naturalization, Reporting and recordkeeping
requirements.

8 CFR Parts 320 and 322

Citizenship and naturalization, Infants and children, Reporting and
recordkeeping requirements.

8 CFR Part 324

Citizenship and naturalization, Reporting and recordkeeping
requirements, Women.

8 CFR Part 334

Administrative practice and procedure, Citizenship and
naturalization, Courts, Reporting and recordkeeping requirements.

8 CFR Parts 341, 343a, 343b, and 392

Citizenship and naturalization, Reporting and recordkeeping
requirements.

Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:

PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS

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

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 31 U.S.C. 9701; 48 U.S.C. 1806; Pub. L.107-296, 116 Stat. 2135
(6 U.S.C. 101 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982
Comp., p. 166; 8 CFR part 2; Pub. L. 112-54, 125 Stat 550. Pub. L.
115-218.

0
2. The heading for part 103 is revised to read as set forth above.

0
3. Section 103.2 amended:
0
a. By revising the last sentence of paragraph (a)(1) and adding a new
last sentence;
0
b. By revising paragraph (a)(7)(ii)(D);
0
c. In paragraph (b)(9) introductory text, by removing ``8 CFR
103.7(b)(1)(i)(C)'' and adding in its place ``8 CFR 106.2'' in the
second sentence; and
0
d. By revising paragraph (b)(19)(iii).
The revisions read as follows:

Sec. 103.2 Submission and adjudication of benefit requests.

(a) * * *
(1) * * * All USCIS fees are generally are non-refundable
regardless of if the benefit request or other service is approved,
denied, or selected, or how much time the adjudication or processing
requires. Except as otherwise provided in this chapter I, fees must be
paid when the request is filed or submitted.
* * * * *
(7) * * *
(ii) * * *
(D) Submitted with the correct fee(s). If a check or other
financial instrument used to pay a fee is returned as unpayable because
of insufficient funds, USCIS will resubmit the payment to the remitter
institution one time. If the instrument used to pay a fee is returned
as unpayable a second time, the filing may be rejected. Financial
instruments returned as unpayable for a reason other than insufficient
funds will not be redeposited. If a check or other financial instrument
used to pay a fee is dated more than one year before the request is
received, the payment and request may be rejected.
* * * * *
(b) * * *
(19) * * *
(iii) Secure identity documents. (A) USCIS may send secure
identification documents, such as a Permanent Resident Card or
Employment Authorization Document, only to the applicant or self-
petitioner unless the applicant or self-petitioner specifically
consents to having his or her secure identification document sent to a
designated agent, their attorney or accredited representative or
record, as specified on the form instructions.
(B) The designated agent, or attorney or accredited representative,
will be required to provide identification and sign for receipt of the
secure document.
* * * * *

Sec. 103.3 [Amended]

0
4. Section 103.3 is amended in paragraph (a)(2)(i) by removing ``Sec.
103.7 of this part'' and adding in its place ``8 CFR 106.2''.

Sec. 103.5 [Amended]

0
5. Section 103.5 is amended in paragraph (a)(1)(iii)(B) by removing
``Sec. 103.7'' and adding in its place ``8 CFR 106.2''.

0
6. Section 103.7 is revised to read as follows:

Sec. 103.7 Fees.

(a) DOJ fees. Fees for proceedings before immigration judges and
the Board of Immigration Appeals are described in 8 CFR 1003.8,
1003.24, and 1103.7.
(1) USCIS may accept DOJ fees. Except as provided in 8 CFR 1003.8,
or as the Attorney General otherwise may provide by regulation, any fee
relating to any EOIR proceeding may be paid to USCIS. Payment of a fee
under this section does not constitute filing of the document with the
Board or with the immigration court. DHS will provide the payer with a
receipt for a fee and return any documents submitted with the fee
relating to any immigration court proceeding.
(2) DHS-EOIR biometric services fee. Fees paid to and accepted by
DHS relating to any immigration proceeding as provided in 8 CFR
1103.7(a)(3) must include an additional $30 for DHS to collect, store,
and use biometric information.
(3) Waiver of Immigration Court fees. An immigration judge or the
Board may waive any fees prescribed under this chapter for cases under
their jurisdiction to the extent provided in 8 CFR 1003.8 and 1003.24.
(b) USCIS fees. USCIS fees will be required as provided in 8 CFR
part 106.
(c) Remittances. Remittances to the Board of Immigration Appeals
must be made payable to the ``United States Department of Justice,'' in
accordance with 8 CFR 1003.8.
(d) Non-USCIS DHS immigration fees. The following fees are
applicable to one or more of the immigration components of DHS:
(1) DCL System Costs Fee. For use of a Dedicated Commuter Lane
(DCL) located at specific U.S. ports-of-entry by an approved
participant in a designated vehicle:
(i) $80.00, or
(ii) $160.00 for a family (applicant, spouse and minor children);
plus,
(iii) $42 for each additional vehicle enrolled.
(iv) The fee is due after approval of the application but before
use of the DCL.
(v) This fee is non-refundable, but may be waived by DHS.
(2) Petition for Approval of School for Attendance by Nonimmigrant
Student (Form I-17). (i) For filing a petition for school
certification: $3,000 plus, a site visit fee of $655 for each location
required to be listed on the form;
(ii) For filing a petition for school recertification: $1,250 plus
a site visit

[[Page 46915]]

fee of $655 for each new location required to be listed on the form.
(3) Form I-68. For application for issuance of the Canadian Border
Boat Landing Permit under section 235 of the Act:
(i) $16.00, or
(ii) $32 for a family (applicant, spouse and unmarried children
under 21 years of age, and parents of either spouse).
(4) Form I-94. For issuance of Arrival/Departure Record at a land
border port-of-entry: $6.00.
(5) Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border port-of-entry under section 217 of the
Act: $6.00.
(6) Form I-246. For filing application for stay of deportation
under 8 CFR part 243: $155.00.
(7) Form I-823. For application to a PORTPASS program under section
286 of the Act:
(i) $25.00, or
(ii) $50.00 for a family (applicant, spouse, and minor children).
(iii) The application fee may be waived by DHS.
(iv) If biometrics, such as fingerprints, are required, the
inspector will inform the applicant of the current Federal Bureau of
Investigation fee for conducting background checks prior to accepting
the application fee.
(v) The application fee (if not waived) and fingerprint fee must be
paid to CBP before the application will be processed. The fingerprint
fee may not be waived.
(vi) For replacement of PORTPASS documentation during the
participation period: $25.00.
(8) Fee Remittance for F, J, and M Nonimmigrants (Form I-901). The
fee for Form I-901 is:
(i) For F and M students: $350.
(ii) For J-1 au pairs, camp counselors, and participants in a
summer work or travel program: $35.
(iii) For all other J exchange visitors (except those participating
in a program sponsored by the Federal Government): $220.
(iv) There is no Form I-901 fee for J exchange visitors in
federally funded programs with a program identifier designation prefix
that begins with G-1, G-2, G-3, or G-7.
(9) Special statistical tabulations: The DHS cost of the work
involved.
(10) Monthly, semiannual, or annual ``Passenger Travel Reports via
Sea and Air'' tables. (i) For the years 1975 and before: $7.00.
(ii) For after 1975: Contact: U.S. Department of Transportation,
Transportation Systems Center, Kendall Square, Cambridge, MA 02142.
(11) Request for Classification of a citizen of Canada to engage in
professional business activities pursuant to section 214(e) of the Act
(Chapter 16 of the North American Free Trade Agreement): $50.00.
(12) Request for authorization for parole of an alien into the
United States: $65.00.
(13) Global Entry. Application for Global Entry: $100.
(14) U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel
Card. Application fee: $70.
(15) Notice of Appeal or Motion (Form I-290B) filed with ICE SEVP.
For a Form I-290B filed with the Student and Exchange Visitor Program
(SEVP): $675.

0
7. Section 103.17 is revised to read as follows:

Sec. 103.17 Biometric services fee.

DHS may charge a fee to collect biometric information, to provide
biometric collection services, to conduct required national security
and criminal history background checks, to verify an individual's
identity, and to store and maintain this biometric information for
reuse to support other benefit requests. If a benefit request as
defined in 8 CFR 1.2 must be submitted with a biometric services fee, 8
CFR part 106 will contain the requirement. When a biometric services
fee is required, a benefit request submitted without the correct
biometric services fee may be rejected.

0
8. Section 103.40 is revised to read as follows:

Sec. 103.40 Genealogical research requests.

(a) Nature of requests. Genealogy requests are requests for
searches and/or copies of historical records relating to a deceased
person, usually for genealogy and family history research purposes.
(b) Forms. USCIS provides on its website at https://www.uscis.gov/genealogy the required forms in electronic versions: Genealogy Index
Search Request, or Genealogy Records Request.
(c) Required information. Genealogical Research Requests may be
submitted to request one or more separate records relating to an
individual. A separate request must be submitted for each individual
searched. All requests for records or index searches must include the
individual's:
(1) Full name (including variant spellings of the name and/or
aliases, if any).
(2) Date of birth, at least as specific as a year.
(3) Place of birth, at least as specific as a country and
preferably the country name at the time of the individual's immigration
or naturalization.
(d) Optional information. To better ensure a successful search, a
Genealogical Research Request may include each individual's:
(1) Date of arrival in the United States.
(2) Residence address at time of naturalization.
(3) Names of parents, spouse, and children if applicable and
available.
(e) Additional information required to retrieve records. For a
Genealogy Records Request, requests for copies of historical records or
files must:
(1) Identify the record by number or other specific data used by
the Genealogy Program Office to retrieve the record as follows:
(i) C-Files must be identified by a naturalization certificate
number.
(ii) Forms AR-2 and A-Files numbered below 8 million must be
identified by Alien Registration Number.
(iii) Visa Files must be identified by the Visa File Number.
Registry Files must be identified by the Registry File Number (for
example, R-12345).
(2) [Reserved]
(f) Information required for release of records. (1) Documentary
evidence must be attached to a Genealogy Records Request or submitted
in accordance with the instructions on the Genealogy Records Request
form.
(2) Search subjects will be presumed deceased if their birth dates
are more than 100 years before the date of the request. In other cases,
the subject is presumed to be living until the requestor establishes to
the satisfaction of USCIS that the subject is deceased.
(3) Documentary evidence of the subject's death is required
(including but not limited to death records, published obituaries or
eulogies, published death notices, church or bible records, photographs
of gravestones, and/or copies of official documents relating to payment
of death benefits).
(g) Index search. Requestors who are unsure whether USCIS has any
record of their ancestor, or who suspect a record exists but cannot
identify that record by number, may submit a request for index search.
An index search will determine the existence of responsive historical
records. If no record is found, USCIS will notify the requestor
accordingly. If records are found, USCIS will give the requestor
electronic copies of records stored in digital format for no additional
fee. For records found that are stored in paper format, USCIS will give
the requestor the search results, including the type of record found
and the file number or other information identifying the record. The
requestor can use index search results to submit a Genealogy Records
Request.
(h) Processing of paper record copy requests. This service is
designed for

[[Page 46916]]

requestors who can identify a specific record or file to be retrieved,
copied, reviewed, and released. Requestors may identify one or more
files in a single request.

Sec. 103.41 [Removed and Reserved]

0
9. Section 103.41 is removed and reserved.

0
10. Part 106 is added to read as follows:

PART 106--USCIS FEE SCHEDULE

Sec.
106.1 Fee requirements.
106.2 Fees.
106.3 Fee waivers and exemptions.
106.4 Premium processing service.
106.5 Authority to certify records.
106.6 DHS severability.

Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub.
L. 107-609; 48 U.S.C. 1806; Pub. L. 115-218.

Sec. 106.1 Fee requirements.

(a) Fees must be submitted with any USCIS benefit request or other
request in the amount and subject to the conditions provided in this
part and remitted in the manner prescribed in the relevant form
instructions, on the USCIS website, or in a Federal Register document.
The fees established in this part are associated with the benefit, the
adjudication, or the type of request and not solely determined by the
form number listed in 8 CFR 106.2.
(b) Fees must be remitted from a bank or other institution located
in the United States and payable in U.S. currency. The fee must be paid
using the method that USCIS prescribes for the request, office, filing
method, or filing location, as provided in the form instructions or by
individual notice.
(c) If a remittance in payment of a fee or any other matter is not
honored by the bank or financial institution on which it is drawn:
(1) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will
be issued, and if a receipt was issued, it is void and the benefit
request loses its receipt date; and
(2) If the benefit request was approved, the approval may be
revoked upon notice. If the approved benefit request requires multiple
fees, this provision will apply if any fee submitted is not honored.
Other fees that were paid for a benefit request that is revoked under
this provision will be retained and not refunded. A revocation of an
approval because the fee submitted is not honored may be appealed to
the USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3
and the applicable form instructions.

Sec. 106.2 Fees.

(a) I Forms--(1) Application to Replace Permanent Resident Card,
Form I-90. For filing an application for a Permanent Resident Card,
Form I-551, to replace an obsolete card or to replace one lost,
mutilated, or destroyed, or for a change in name: $415.
(2) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document, Form I-102. For filing an application for Arrival/
Departure Record, Form I-94, or Crewman's Landing Permit, Form I-95, to
replace one lost, mutilated, or destroyed: $485.
(i) For nonimmigrant member of the U.S. armed forces: No fee for
initial filing;
(ii) For a nonimmigrant member of the North Atlantic Treaty
Organization (NATO) armed forces or civil component: No fee for initial
filing;
(iii) For nonimmigrant member of the Partnership for Peace military
program under the Status of Forces Agreement (SOFA): No fee for initial
filing.
(3) Petition or Application for a Nonimmigrant Worker, Form I-129.
For filing a petition or application for a nonimmigrant worker:
(i) Petition for H-1B Nonimmigrant Worker or H-1B1 Free Trade
Nonimmigrant Worker, Form I-129H1: $555.
(ii) Petition for H-2A Nonimmigrant Worker, Form I-129H2A, with 1
to 25 named beneficiaries: $850.
(iii) Petition for H-2A Nonimmigrant Worker, Form I-129H2A, with
only unnamed beneficiaries: $415.
(iv) Petition for H-2B Nonimmigrant Worker, Form I-129H2B, with 1
to 25 named beneficiaries: $715.
(v) Petition for H-2B Nonimmigrant Worker, Form I-129H2B, with only
unnamed beneficiaries: $385.
(vi) Petition for L Nonimmigrant Worker, Form I-129L: $805.
(vii) Petition for O Nonimmigrant Worker, Form I-129O, with 1 to 25
named beneficiaries: $705.
(viii) Petition or Application for E, H-3, P, Q, R, or TN
Nonimmigrant Worker, Forms I-129E or I-129MISC, with 1 to 25 named
beneficiaries: $695.
(4) Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form
I-129CW. For an employer to petition on behalf of beneficiaries in the
Commonwealth of the Northern Mariana Islands (CNMI): $695, plus the
following fees:
(i) CNMI education funding fee:
(A) $200 per beneficiary per year.
(B) DHS may adjust this fee once per year by notice in the Federal
Register based on the amount of inflation according to the change in
the unadjusted All Items Consumer Price Index for All Urban Consumers
(CPI-U) for the U.S. City Average published by the Bureau of Labor
Statistics since the fee was set on June 18, 2020.
(ii) A fraud prevention and detection fee: $50 per employer filing
a petition.
(iii) For filing Form I-129CWR, Semiannual Report for CW-1
Employers: No fee.
(5) Petition for Alien Fianc[eacute](e), Form I-129F. (i) For
filing a petition to classify a nonimmigrant as a fianc[eacute]e or
fianc[eacute] under section 214(d) of the Act: $510.
(ii) For a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the
beneficiary of an immigrant petition filed by a U.S. citizen on a
Petition for Alien Relative, Form I-130: No fee.
(6) Petition for Alien Relative, Form I-130. For filing a petition
to classify status of a foreign national relative for issuance of an
immigrant visa under section 204(a) of the Act: $560.
(7) Application for Travel Document, Form I-131. For filing an
application for travel document:
(i) $145 for a Refugee Travel Document for someone 16 or older.
(ii) $115 for a Refugee Travel Document for a child under 16.
(iii) $590 for advance parole and any other travel document except
Form I-131A.
(iv) There is no fee for applicants who filed USCIS Form I-485 on
or after July 30, 2007, and before October 2, 2020, and paid the Form
I-485 fee, or for applicants for Special Immigrant Status based on an
approved Form I-360 as an Afghan or Iraqi Interpreter, or Iraqi
National employed by or on behalf of the U.S. Government or Afghan
National employed by the U.S. Government or the International Security
Assistance Forces (``ISAF'').
(8) Application for Travel Document (Carrier Documentation), Form
I-131A. For filing an application to allow a lawful permanent resident,
conditional permanent resident or other alien traveling abroad on an
Advance Parole Document (Form I-512 or I-512L) or Employment
Authorization Documents (EAD) with travel endorsement (Form I-766), to
apply for carrier documentation to board an airline or other
transportation carrier to return to the United States: $1,010.
(9) Immigrant Petition for Alien Workers, 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: $555.
(10) Application for Relief Under Former Section 212(c) of the
Immigration and Nationality Act (INA), Form I-191. For filing an
application for

[[Page 46917]]

discretionary relief under section 212(c) of the Act: $790.
(11) Application for Advance Permission to Enter as Nonimmigrant,
Form I-192. For filing an application for discretionary relief under
section 212(d)(3), (d)(13), or (d)(14) of the Act, except in an
emergency case or where the approval of the application is in the
interest of the U.S. Government: $1,400.
(12) Application for Waiver of Passport and/or Visa, Form I-193.
For filing an application for waiver of passport and/or visa: $2,790.
(13) Application for Permission to Reapply for Admission into the
United States After Deportation or Removal, Form I-212. For filing an
application for permission to reapply for admission by 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: $1,050.
(14) Notice of Appeal or Motion, Form I-290B. For appealing a
decision under the immigration laws in any type of proceeding over
which the Board of Immigration Appeals does not have appellate
jurisdiction: $700. In addition:
(i) The fee will be the same for appeal or a motion to reopen a
denial of a benefit request with one or multiple beneficiaries.
(ii) There is no fee for an appeal or motion associated with a
denial of a petition for a special immigrant visa filed by or on behalf
of an individual seeking special immigrant status as an Afghan or Iraqi
Interpreter, or Iraqi National employed by or on behalf of the U.S.
Government or Afghan National employed by the U.S. Government or the
International Security Assistance Forces (``ISAF'').
(15) Request for Cancellation of Public Charge Bond, Form I-356.
$25.
(16) Petition for Amerasian, Widow(er), or Special Immigrant, Form
I-360. For filing a petition for an Amerasian, Widow(er), or Special
Immigrant: $450. The following requests are exempt from this fee:
(i) A petition seeking classification as an Amerasian;
(ii) A self-petition for immigrant classification as an abused
spouse or child of a U.S. citizen or lawful permanent resident or an
abused parent of a U.S. citizen son or daughter; or
(iii) A petition for special immigrant juvenile classification; or
(iv) A petition seeking special immigrant visa or status an Afghan
or Iraqi Interpreter, or Iraqi National employed by or on behalf of the
U.S. Government or Afghan National employed by the U.S. Government or
the International Security Assistance Forces (``ISAF'').
(17) Application to Register Permanent Residence or Adjust Status,
Form I-485--(i) Most permanent residence applications. For filing an
application for permanent resident status or creation of a record of
lawful permanent residence: $1,130.
(ii) Asylees. For the first Form I-485, Application to Register
Permanent Residence or Adjust Status, filed by individuals who have
paid the $50 fee for Form I-589 and are subsequently granted asylum
based on that Form I-589: $1,080.
(iii) Refugees and Special Immigrants. There is no fee if an
applicant is filing as a refugee under section 209(a) of the Act or for
applicants for Special Immigrant Status based on an approved Form I-360
as an Afghan or Iraqi Interpreter, or Iraqi National employed by or on
behalf of the U.S. Government or Afghan National employed by the U.S.
Government or the International Security Assistance Forces (``ISAF'').
(iv) Adjustment of Status Under Section 245(i), Form I-485
Supplement A. Persons seeking to adjust status under the provisions of
section 245(i) of the Act must submit a sum of $1,000 in addition to
the fee for filing the Form I-485, unless payment of the additional sum
is not required under section 245(i) of the Act. The additional sum is
not required when the applicant is an unmarried child less than 17
years of age, when the applicant is the spouse, or the unmarried child
less than 21 years of age of a legalized alien and who is qualified for
and has properly filed an application for voluntary departure under the
family unity program.
(18) Immigrant Petition by Alien Investor, Form I-526. For filing a
petition for an alien investor: $4,010.
(19) Application To Extend/Change Nonimmigrant Status, Form I-539.
For filing an application to extend or change nonimmigrant status:
$400. For nonimmigrant A, G, and NATO: No fee.
(20) Application for Asylum and for Withholding of Removal, Form I-
589. For filing an application for asylum status: $50. There is no fee
for applications filed by unaccompanied alien children who are in
removal proceedings.
(21) Petition to Classify Orphan as an Immediate Relative, 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.
(i) There is no fee for the first Form I-600 filed for a child on
the basis of an approved Application for Advance Processing of an
Orphan Petition, Form I-600A, during the Form I-600A approval or
extended approval period.
(ii) Except as specified in paragraph (a)(21)(iii) of this section,
if more than one Form I-600 is filed during the Form I-600A approval
period, the fee is $805 for the second and each subsequent Form I-600
petition submitted.
(iii) If more than one Form I-600 is filed during the Form I-600A
approval period on behalf of beneficiary birth siblings, no additional
fee is required.
(22) Application for Advance Processing of an Orphan Petition, Form
I-600A. For filing an application for determination of suitability and
eligibility to adopt an orphan: $805.
(23) Request for Action on Approved Form I-600A/I-600, Form I-600A/
I-600 Supplement 3: $400.
(i) This filing fee:
(A) Is not charged if Form I-600A/I-600 Supplement 3 is filed in
order to obtain a first extension of the approval of the Form I-600A or
to obtain a first time change of non-Hague Adoption Convention country
during the Form I-600A approval period.
(B) Is charged if Form I-600A/I-600 Supplement 3 is filed in order
to request a new approval notice based on a significant change and
updated home study, unless a first extension of the Form I-600A
approval or first time change of non-Hague Adoption Convention country
is also being requested on the same Supplement 3.
(C) Is $400 for second or subsequent extensions of the approval of
the Form I-600A, second or subsequent changes of non-Hague Adoption
Convention country, requests for a new approval notice based on a
significant change and updated home study, and requests for a duplicate
approval notice permitted with Form I-600A/I-600 Supplement 3 with the
filing fee.
(ii) Form I-600A/I-600 Supplement 3 cannot be used to:
(A) Extend eligibility to proceed as a Hague Adoption Convention
transition case beyond the first extension once the Convention enters
into force for the new Convention country.
(B) Request a change of country to a Hague Adoption Convention
transition country for purposes of becoming a transition case if
another country was already designated on the Form I-600A or prior
change of country request.
(iii) Form I-600A/I-600 Supplement 3 may only be used to request an
increase the number of children the applicant/petitioner is approved to
adopt from a transition country if the additional child is a birth
sibling of a child who the applicant/petitioner has adopted or is in
the process of adopting, as a transition case, and is identified and
petitioned for

[[Page 46918]]

while the Form I-600A approval is valid, unless the new Convention
country prohibits such birth sibling cases from proceeding as
transition cases.
(24) Application for Waiver of Grounds of Inadmissibility, Form I-
601. For filing an application for waiver of grounds of
inadmissibility: $1,010.
(25) Application for Provisional Unlawful Presence Waiver, Form I-
601A. For filing an application for provisional unlawful presence
waiver: $960.
(26) Application for Waiver of the Foreign Residence Requirement
(under Section 212(e) of the Immigration and Nationality Act, as
Amended), Form I-612. For filing an application for waiver of the
foreign-residence requirement under section 212(e) of the Act: $515.
(27) Application for Status as a Temporary Resident under Section
245A of the Immigration and Nationality Act, Form I-687. For filing an
application for status as a temporary resident under section 245A(a) of
the Act: $1,130.
(28) Application for Waiver of Grounds of Inadmissibility, 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: $765.
(29) Notice of Appeal of Decision under Sections 245A or 210 of the
Immigration and Nationality Act (or a petition under section 210A of
the Act), 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: $715.
(30) Application to Adjust Status from Temporary to Permanent
Resident (Under Section 245A of the INA), Form I-698. For filing an
application to adjust status from temporary to permanent resident (Pub.
L. 99-603): $1,615.
(31) Petition to Remove Conditions on Residence, Form I-751. For
filing a petition to remove the conditions on residence based on
marriage: $760.
(32) Application for Employment Authorization, Form I-765: $550.
(i) A $30 biometric services must be included with a Form I-765
filed by:
(A) An asylum applicant with a pending Form I-589.
(B) An applicant for status as a long-term resident of the
Commonwealth of the Northern Mariana Islands.
(ii) There is no fee for an initial Employment Authorization
Document for:
(A) An applicant who filed USCIS Form I-485 on or after July 30,
2007, and before October 2, 2020, and paid the Form I-485 fee;
(B) Refugees and aliens paroled as a refugee;
(C) Aliens granted asylee status;
(D) Victims of Severe Forms of Trafficking (T-1);
(E) Nonimmigrant Victim of Criminal Activity (U-1);
(F) Dependents of certain government and internal organizations or
NATO personnel;
(G) N-8 (Parent of alien classed as SK3) and N-9 (Child of N-8)
nonimmigrants;
(H) Principal VAWA Self-Petitioners who have approved petitions
pursuant to section 204(a) of the Act;
(I) VAWA Self-Petitioners as defined in section 101(a)(51)(D), (E),
and (F) of the Act;
(J) Applicants for Special Immigrant Status based on an approved
Form I-360 as an Afghan or Iraqi Interpreter, or Iraqi National
employed by or on behalf of the U.S. Government or Afghan National
employed by the U.S. Government or the International Security
Assistance Forces (``ISAF''); and
(iii) Request for replacement Employment Authorization Document
based on USCIS error: No fee.
(iv) There is no fee for a renewal or replacement Employment
Authorization Document for:
(A) Any current Adjustment of Status or Registry applicant who
filed for adjustment of status on or after July 30, 2007, and before
October 2, 2020, and paid the appropriate Form I-485 filing fee.
(B) Applicants for Special Immigrant Status based on an approved
Form I-360 as an Afghan or Iraqi Translator or Interpreter, Iraqi
National employed by or on behalf of the U.S. Government, or Afghan
National employed by or on behalf of the U.S. government or employed by
the International Security Assistance Forces: And
(C) Dependent of certain foreign government, international
organization, or NATO personnel.
(v) An Application for Employment Authorization for Abused
Nonimmigrant Spouse, Form I-765V: No fee.
(vi) The Form I-765 fee for initial and renewal requestors of
Consideration of Deferred Action for Childhood Arrivals is $410.
Requestors of Consideration of Deferred Action for Childhood Arrivals
must also pay a biometric services fee of $85 for an initial, renewal
of, or to replace their employment authorization document.
(33) Petition to Classify Convention Adoptee as an Immediate
Relative, Form I-800. (i) There is no fee for the first Form I-800
filed for a child on the basis of an approved Application for
Determination of Suitability to Adopt a Child from a Convention
Country, Form I-800A, during the Form I-800A approval period.
(ii) Except as specified in paragraph (a)(33)(iii) of this section,
if more than one Form I-800 is filed during the Form I-800A approval
period, the fee is $805 for the second and each subsequent Form I-800
petition submitted.
(iii) If more than one Form I-800 is filed during the Form I-800A
approval period on behalf of beneficiary birth siblings, no additional
fee is required.
(34) Application for Determination of Suitability to Adopt a Child
from a Convention Country, Form I-800A. For filing an application for
determination of suitability and eligibility to adopt a child from a
Hague Adoption Convention country: $805.
(35) Request for Action on Approved Application for Determination
of Suitability to Adopt a Child from a Convention Country, Form I-800A
Supplement 3: $400.
(i) This filing fee:
(A) Is not charged if Form I-800A Supplement 3 is filed in order to
obtain a first extension of the approval of the Form I-800A or to
obtain a first time change of Hague Adoption Convention country during
the Form I-800A approval period.
(B) Is charged if Form I-800A Supplement 3 is filed in order to
request a new approval notice based on a significant change and updated
home study, unless a first extension of the Form I-800A approval or
first time change of Hague Adoption Convention country is also being
requested on the same Supplement 3.
(ii) Is $400 for second or subsequent extensions of the Form I-800A
approval, second or subsequent changes of Hague Adoption Convention
country, requests for a new approval notice based on a significant
change and updated home study, and requests for a duplicate approval
notice, permitted with the filing of a Form I-800A, Supplement 3 and
the required filing fee: $400.
(36) Application for Family Unity Benefits, Form I-817. For filing
an application for voluntary departure under the Family Unity Program:
$590.
(37) Application for Temporary Protected Status, Form I-821. (i)
For first time applicants: $50 or the maximum permitted by section
244(c)(1)(B) of the Act.
(ii) There is no fee for re-registration.
(iii) A Temporary Protected Status (TPS) applicant or re-registrant
must pay $30 for biometric services unless

[[Page 46919]]

exempted in the applicable form instructions.
(38) Application for Deferred Action for Childhood Arrivals, Form
I-821D. No fee.
(39) Application for Action on an Approved Application, Form I-824:
$495.
(40) Petition by Investor to Remove Conditions, Form I-829. For
filing a petition by an investor to remove conditions: $3,900.
(41) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100),
Form I-881.
(i) $1,810 for adjudication by DHS.
(ii) $165 for adjudication by EOIR. If the Form I-881 is referred
to the immigration court by DHS, the $1,810 fee is required.
(42) Application for Authorization to Issue Certification for
Health Care Workers, Form I-905: $230.
(43) Request for Premium Processing Service, Form I-907. The
Request for Premium Processing Service fee will be as provided in 8 CFR
106.4.
(44) Application for Civil Surgeon Designation, Form I-910: $635.
There is no filing fee for:
(i) A medical officer in the U.S. Armed Forces or
(ii) A civilian physician employed by the U.S. Government who
examines members and veterans of the U.S. Armed Forces and their
dependents at a military, Department of Veterans Affairs, or U.S.
Government facility in the United States.
(45) Application for T Nonimmigrant Status, Form I-914: No fee.
(46) Petition for U Nonimmigrant Status, Form I-918: No fee.
(47) Application for Regional Center Designation under the
Immigrant Investor Program, Form I-924: $17,795.
(48) Annual Certification of Regional Center, Form I-924A. To
provide updated information and certify that a Regional Center under
the Immigrant Investor Program has maintained its eligibility: $4,465.
(49) Petition for Qualifying Family Member of a U-1 Nonimmigrant,
Form I-929. For a principal U-1 nonimmigrant to request immigration
benefits on behalf of a qualifying family member who has never held U
nonimmigrant status: $1,485.
(50) Application for Entrepreneur Parole, Form I-941. For filing an
application for parole for an entrepreneur: $1,200.
(51) Public Charge Bond, Form I-945: $25.
(b) N Forms--(1) Application to File Declaration of Intention, Form
N-300. For filing an application for declaration of intention to become
a U.S. citizen: $1,305.
(2) Request for a Hearing on a Decision in Naturalization
Proceedings (under section 336 of the Act), Form N-336. For filing a
request for hearing on a decision in naturalization proceedings under
section 336 of the Act: $1,735. There is no fee for an applicant who
has filed an Application for Naturalization under sections 328 or 329
of the Act with respect to military service and whose application has
been denied.
(3) Application for Naturalization, Form N-400. For filing an
application for naturalization: $1,170. No fee is charged an applicant
who meets the requirements of sections 328 or 329 of the Act with
respect to military service.
(4) Application to Preserve Residence for Naturalization Purposes,
Form N-470. For filing an application for benefits under section 316(b)
or 317 of the Act: $1,585.
(5) Application for Replacement Naturalization/Citizenship
Document, Form N-565: $545.
(i) This fee is for filing an application for:
(A) A certificate of naturalization or certificate of citizenship;
(B) A declaration of intention in place of a certificate or
declaration alleged to have been lost, mutilated, or destroyed;
(C) A changed name under section 343(c) of the Act; or
(D) 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;
(ii) There is no fee when this application is submitted under 8 CFR
338.5(a) or 343a.1 to request correction of a certificate of
naturalization or certificate of citizenship that contains an error.
(6) Application for Certificate of Citizenship, Form N-600. For
filing an application for a certificate of citizenship under section
309(c) or section 341 of the Act: $1,000. There is no fee for any
application filed by a member or veteran of any branch of the U.S.
Armed Forces.
(7) Application for Citizenship and Issuance of Certificate Under
Section 322, Form N-600K. For filing an application for citizenship and
issuance of certificate under section 322 of the Act: $945.
(c) G Forms, Statutory Fees, and Non-Form Fees--(1) Genealogy Index
Search Request, Form G-1041: $170. The fee is due regardless of the
search results.
(2) Genealogy Records Request, Form G-1041A: $265. USCIS will
refund the records request fee when it is unable to locate any file
previously identified in response to the index search request.
(3) USCIS Immigrant Fee. For DHS domestic processing and issuance
of required documents after an immigrant visa is issued by the U.S.
Department of State: $190.
(4) American Competitiveness and Workforce Improvement Act (ACWIA)
fee. For filing certain H-1B petitions as described in 8 CFR
214.2(h)(19) and USCIS form instructions: $1,500 or $750.
(5) Fraud detection and prevention fee. (i) For filing certain H-1B
and L petitions as described in 8 U.S.C. 1184(c) and USCIS form
instructions: $500.
(ii) For filing certain H-2B petitions as described in 8 U.S.C.
1184(c) and USCIS form instructions: $150.
(6) Fraud detection and prevention fee for CNMI. For employer
petitions in CNMI as described in Public Law 115-218 and USCIS form
instructions: $50.
(7) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For
all petitioners filing an H-1B petition who employ 50 or more employees
in the United States if more than 50 percent of the petitioner's
employees in the aggregate are in H-1B, L-1A or L-1B nonimmigrant
status, except for petitioners filing an amended petition without an
extension of stay request: $4,000. This fee will apply to petitions
filed on or before September 30, 2027.
(8) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For
all petitioners filing an L-1 petition who employ 50 or more employees
in the United States, if more than 50 percent of the petitioner's
employees in the aggregate are in H-1B, L-1A or L-1B nonimmigrant
status, except for petitioners filing an amended petition without an
extension of stay request: $4,500. This fee will apply to petitions
filed on or before September 30, 2027.
(9) Claimant under section 289 of the Act: No fee.
(10) Registration requirement for petitioners seeking to file H-1B
petitions on behalf of cap-subject aliens. For each registration
submitted to register for the H-1B cap or advanced degree exemption
selection process: $10. This fee will not be refunded if the
registration is not selected or is withdrawn.
(d) Online forms. The fee for the following forms is $10.00 lower
than the fee established in paragraphs (a), (b), and (c) of this
section when submitted to USCIS online and not in paper form:
(1) I-90, Application to Replace Permanent Resident Card;

[[Page 46920]]

(2) N-336, Request for a Hearing on a Decision in Naturalization
Proceedings (Under Section 336 of the INA);
(3) N-400, Application for Naturalization;
(4) N-565, Application for Replacement Naturalization/Citizenship
Document;
(5) I-130/130A, Petition for Alien Relative;
(6) N-600, Application for Certificate of Citizenship;
(7) N-600K, Application for Citizenship and Issuance of Certificate
Under Section 322;
(8) I-539/539A, Application To Extend/Change Nonimmigrant Status;
(9) G-1041, Genealogy Index Search Request; and
(10) G-1041A, Genealogy Records Request.

Sec. 106.3 Fee waivers and exemptions.

(a) Fee waiver. No fee relating to any benefit request submitted to
USCIS may be waived unless otherwise provided in this paragraph.
(1) An alien may apply for a fee waiver if there is a statutory or
regulatory provision allowing for fee waivers including as provided by
section 245(l)(7) of the Act, 8 U.S.C. 1255(l)(7). Specifically, the
following categories of requestors may apply for a waiver of any fees
for an immigration benefit and any associated filing up to and
including an application for adjustment of status:
(i) Violence Against Women Act (VAWA) self-petitioners and
derivatives as defined under section 101(a)(51) and anyone otherwise
self-petitioning due to battery or extreme cruelty pursuant to the
procedures in section 204(a) of the Act;
(ii) T nonimmigrants;
(iii) U nonimmigrants;
(iv) Battered spouses of A, G, E-3, or H nonimmigrants;
(v) Battered spouses or children of a lawful permanent resident or
U.S. citizen and derivatives as provided under section 240A(b)(2) of
the Act; and
(vi) Applicants for Temporary Protected Status, including both
initial applicants and re-registering TPS beneficiaries.
(2) The following categories of requestors may apply for a waiver
of any fees for an immigration benefit and any associated filing up to
and including an application for adjustment of status:
(i) Special Immigrant Juveniles (SIJs) who have been placed in out-
of-home care under the supervision of a juvenile court or a state child
welfare agency at the time of filing; and
(ii) Afghan or Iraqi Translator or Interpreter, Iraqi National
employed by or on behalf of the U.S. Government, or Afghan National
employed by or on behalf of the U.S. government or employed by the
International Security Assistance Forces.
(3) Requestors who have been approved for the immigration benefits
in paragraphs (a)(1) and (2) of this section may apply for a waiver of
any fees for Form N-400, Application for Naturalization, Form N-600
Application for Certificate of Citizenship, or Form N-600K, Application
for Citizenship and Issuance of Certificate Under Section 322, as
applicable.
(b) Director's exception. The Director of USCIS may authorize the
waiver, in whole or in part, of a form fee required by 8 CFR 106.2 that
is not otherwise waivable under this section, if the Director
determines that such action is an emergent circumstance, or if a major
natural disaster has been declared in accordance with 44 CFR part 206,
subpart B. This discretionary authority may be delegated only to the
USCIS Deputy Director. The Director may not waive the requirements of
paragraph (c) or (d) of this section. An applicant, petitioner, or
requestor may not directly submit a request to the Director. In
addition, a waiver of fees as provided in this paragraph may not be
provided to a requestor who is seeking an immigration benefit for which
he or she:
(1) Is subject to the affidavit of support requirements under
section 213A of the Act or is already a sponsored immigrant as defined
in 8 CFR 213a.1 unless the applicant is seeking a waiver of the joint
filing requirement to remove conditions on his or her residence based
on abuse; or
(2) Is subject to the public charge inadmissibility ground under
section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).
(c) Eligibility for fee waiver. A waiver of fees is limited to an
alien with an annual gross household income at or below 125 percent of
the Federal Poverty Guidelines as updated periodically in the Federal
Register by the U.S. Department of Health and Human Services under the
authority of 42 U.S.C. 9902(2).
(d) Form required. A person must submit a request for a fee waiver
on the form prescribed by USCIS in accordance with the instructions on
the form.
(e) Exemptions. The Director of USCIS may provide an exemption for
any fee required by 8 CFR 106.2. This discretionary authority may only
be delegated to the USCIS Deputy Director. The Director must determine
that such action would be in the public interest, the action is
consistent with the applicable law, and the exemption is related to one
of the following:
(1) Asylees;
(2) Refugees;
(3) National security;
(4) Emergencies or major disasters declared in accordance with 44
CFR part 206, subpart B;
(5) An agreement between the U.S. government and another nation or
nations; or
(6) USCIS error.
(f) Documentation of gross household income. A person submitting a
request for a fee waiver must submit the following documents as
evidence of annual gross household income:
(1) A transcript(s) from the United States Internal Revenue Service
(IRS) of the person's IRS Form 1040, U.S. Individual Income Tax Return;
(2) If the person was not required to file a Federal income tax
return, he or she must submit their most recent IRS Form W-2, Wage and
Tax Statement, Form 1099G, Certain Government Payments, or Social
Security Benefit Form SSA-1099, if applicable;
(3) If the person filed a Federal income tax return, and has
recently changed employment or had a change in salary, the person must
also submit copies of consecutive pay statements (stubs) for the most
recent month or longer;
(4) If the person does not have income and has not filed income tax
returns, he or she must submit documentation from the IRS that
indicates that no Federal income tax transcripts and no IRS Form W-2s
were found;
(5) An alien who is applying for or has been granted benefits or
status as a VAWA self-petitioner or derivative or a T or U
nonimmigrant, who does not have any income or cannot provide proof of
income may:
(i) Describe the situation in sufficient detail as provided in the
form and form instructions prescribed by DHS to substantiate that he or
she has income at or below 125 percent of the Federal Poverty
Guidelines as well as the inability to obtain the required
documentation; and
(ii) Provide pay statements (stubs) or affidavits from religious
institutions, non-profits, or other community-based organizations
verifying that he or she is currently receiving some benefit or support
from that entity and attesting to his or her financial situation as
documentation of income, if available; and
(6) For applications related to Special Immigrant Juvenile
classification, the applicant must provide the following in lieu of
documentation of gross household income:

[[Page 46921]]

(i) Evidence that the applicant is approved for or filed for
Special Immigrant Juvenile classification, and
(ii) Evidence that the applicant remains in out-of-home care such
as foster care.

Sec. 106.4 Premium processing service.

(a) General. A person submitting a request to USCIS may request 15
business-day processing of certain employment-based immigration benefit
requests.
(b) Submitting a request. A request must be submitted on the form
prescribed by USCIS and prepared and submitted in accordance with the
form instructions. If the request for premium processing is submitted
together with the underlying benefit request, all required fees in the
correct amount must be paid.
(c) Fee amount. The fee amount will be prescribed in the form
instructions and:
(1) Must be paid in addition to, and in a separate remittance from,
other filing fees.
(2) May be adjusted once per year by notice in the Federal Register
based on the amount of inflation according to the Consumer Price Index
(CPI) since the fee was set by law at $1,000 on June 1, 2001.
(d) 15-day limitation. USCIS will refund the premium processing
service fee, but continue to process the case if:
(1) USCIS does not issue a notice of any adjudicative action by the
end of the 15th business day from the date USCIS accepted a properly
filed request for premium processing for an eligible employment-based
immigration benefit request, including all required fees. The
adjudicative action is evidenced by the notification of, but not
necessarily receipt of, an approval, denial, request for evidence (RFE)
or notice of intent to deny (NOID); or
(2) USCIS does not issue a notice of a subsequent adjudicative
action by the end of the 15th business-day from the date USCIS received
the response to an RFE or NOID. In premium processing cases where USCIS
issues an RFE or NOID within 15 business days from the initial date of
acceptance, a new 15-day period begins on the date that USCIS receives
the response to the RFE or NOID.
(3) USCIS may retain the premium processing fee and not reach a
conclusion on the request within 15 business days, and not notify the
person who filed the request, if USCIS opens an investigation for fraud
or misrepresentation relating to the benefit request.
(e) Requests eligible for premium processing. (1) USCIS will
designate the categories of employment-based benefit requests that are
eligible for premium processing.
(2) USCIS will announce by its official internet website, currently
http://www.uscis.gov, those requests for which premium processing may
be requested, the dates upon which such availability commences and
ends, and any conditions that may apply.

Sec. 106.5 Authority to certify records.

The Director of USCIS, or such officials as he or she may
designate, may certify records when authorized under 5 U.S.C. 552 or
any other law to provide such records.

Sec. 106.6 DHS severability.

Each provision of this part is separate and severable from one
another. If any provision is stayed or determined to be invalid, the
remaining provisions will continue in effect.

PART 204--IMMIGRANT PETITIONS

0
11. The authority citation for part 204 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1641; 8 CFR part 2.

0
12. Section 204.3 is amended:
0
a. By revising the section heading;
0
b. In paragraph (b), in the definition of ``Orphan petition'', by
revising the second sentence;
0
c. By revising the fourth and fifth sentences of paragraph (d)
introductory text; and
0
d. By revising paragraphs (h)(3)(i) and (ii) and (h)(7) and (13).
The revisions read as follows:

Sec. 204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-
Hague Adoption Convention cases).

* * * * *
(b) * * *
Orphan petition means * * * The petition must be completed in
accordance with the form's instructions and submitted with the required
supporting documentation and, if there is not a pending, or currently
valid and approved advanced processing application, the fee as required
in 8 CFR 106.2. * * *
* * * * *
(d) * * * If the prospective adoptive parents fail to file the
orphan petition within the approval validity period of the advanced
processing application, the advanced processing application will be
deemed abandoned pursuant to paragraph (h)(7) of this section. If the
prospective adoptive parents file the orphan petition after the
approval period of the advanced processing application has expired, the
petition will be denied pursuant to paragraph (h)(13) of this section.
* * *
* * * * *
(h) * * *
(3) * * *
(i) If the advanced processing application is approved:
(A) The prospective adoptive parents will be advised in writing. A
notice of approval expires 15 months after the date on which USCIS
received the FBI response on the applicant's, and any additional adult
member of the household's, biometrics, unless approval is revoked. If
USCIS received the responses on different days, the 15-month period
begins on the earliest response date. The notice of approval will
specify the expiration date.
(B) USCIS may extend the validity period for the approval of a Form
I-600A as provided in paragraph (h)(3)(ii) of this section or if
requested in accordance with 8 CFR 106.2(a)(23). During this time, the
prospective adoptive parents may file an orphan petition for one orphan
without fee.
(C) If the Form I-600A approval is for more than one orphan, the
prospective adoptive parents may file a petition for each of the
additional children, to the maximum number approved.
(D) If the orphans are birth siblings, no additional fee is
required. If the orphans are not birth siblings, an additional fee is
required for each orphan beyond the first orphan.
(E) It does not guarantee that the orphan petition will be
approved.
(ii) In the case of an outbreak affecting a public health or other
emergency:
(A) The USCIS Director or his or her designee, may extend the
validity period of the approval of the advance processing application,
either in an individual case or for a class of cases if the Director or
designee determines that the ability of a prospective adoptive parent
to timely file a petition has been adversely affected.
(B) An extension of the validity of the approval of the advance
processing application may be subject to such conditions as the USCIS
Director, or officer designated by the USCIS Director, may establish.
* * * * *
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within the approval validity period of the
advanced processing application. If an orphan petition is not properly
filed within 15 months of the approval date of the advanced processing
application:

[[Page 46922]]

(i) The application will be deemed abandoned;
(ii) Supporting documentation will be returned to the prospective
adoptive parents, except for documentation submitted by a third party
which will be returned to the third party, and documentation relating
to the biometrics checks;
(iii) The director will dispose of documentation relating to
biometrics checks in accordance with current policy; and
(iv) Such abandonment will be without prejudice to a new filing at
any time with fee.
* * * * *
(13) Orphan petition denied: petitioner files orphan petition after
the approval of the advanced processing application has expired. If the
petitioner files the orphan petition after the advanced processing
application has expired, the petition will be denied. This action will
be without prejudice to a new filing at any time with fee.
* * * * *

0
13. Section 204.5 is amended:
0
a. In paragraph (m)(5), in the definition of ``Petition'', by removing
``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''; and
0
b. By revising paragraph (p)(4).
The revision reads as follows:

Sec. 204.5 Petitions for employment-based immigrants.

* * * * *
(p) * * *
(4) Application for employment authorization. (i) To request
employment authorization, an eligible applicant described in paragraph
(p)(1), (2), or (3) of this section must:
(A) File an application for employment authorization (Form I-765),
with USCIS, in accordance with 8 CFR 274a.13(a) and the form
instructions.
(B) Submit biometric information as may be provided in the
applicable form instructions.
(ii) Employment authorization under this paragraph may be granted
solely in 1-year increments, but not to exceed the period of the
alien's authorized admission.
* * * * *

Sec. 204.6 [Amended]

0
14. Section 204.6 is amended in paragraph (m)(6)(i)(C) by removing ``8
CFR 103.7(b)(1)(i)(XX)'' and adding in its place ``8 CFR 106.2''.

Sec. 204.310 [Amended]

0
15. Section 204.310 is amended in paragraph (a)(3)(i) by removing ``8
CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2'' and by
removing and reserving paragraph (a)(3)(ii).

Sec. 204.311 [Amended]

0
16. Section 204.311 is amended in paragraph (u)(4) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

0
17. Section 204.312 is amended by revising paragraph (e)(3) to read as
follows:

Sec. 204.312 Adjudication of the Form I-800A.

* * * * *
(e) * * *
(3)(i) If the 15-month validity period for a Form I-800A approval
is about to expire, the applicant:
(A) May file Form I-800A Supplement 3, with the filing fee under 8
CFR 106.2, if required.
(B) May not file a Form I-800A Supplement 3 seeking extension of an
approval notice more than 90 days before the expiration of the validity
period for the Form I-800A approval, but must do so on or before the
date on which the validity period expires.
(C) Is not required to pay the Form I-800A Supplement 3 filing fee
for the first request to extend the approval of a Form I-800A, or to
obtain a first time change of Hague Convention country during the Form
I-800A approval period.
(D) Must pay the Form I-800A Supplement 3 filing fee, as specified
in 8 CFR 106.2, for the second, or any subsequent, Form I-800A
Supplement 3 that is filed, if the applicant files a second or
subsequent Form I-800A Supplement 3 to obtain a second or subsequent
extension or a second or subsequent change of Hague Convention country.
(ii) Any Form I-800A Supplement 3 that is filed to obtain an
extension of the approval of a Form I-800A or a change of Hague
Convention country must be accompanied by:
(A) A statement, signed by the applicant under penalty of perjury,
detailing any changes to the answers given to the questions on the
original Form I-800A;
(B) An updated or amended home study as required under 8 CFR
204.311(u); and
(C) A photocopy of the Form I-800A approval notice.
(iii) If USCIS continues to be satisfied that the applicant remains
suitable as the adoptive parent of a Convention adoptee, USCIS will
extend the approval of the Form I-800A to a date not more than 15
months after the date on which USCIS received the new biometric
responses. If new responses are received on different dates, the new
15-month period begins on the earliest response date. The new notice of
approval will specify the new expiration date.
(iv) There is no limit to the number of extensions that may be
requested and granted under this section, so long as each request is
supported by an updated or amended home study that continues to
recommend approval of the applicant for intercountry adoption and USCIS
continues to find that the applicant remain suitable as the adoptive
parent(s) of a Convention adoptee.
* * * * *

Sec. 204.313 [Amended]

0
18. Section 204.313 is amended in the last sentence of paragraph (a) by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''
and by adding the word ``birth'' before ``siblings''.
* * * * *

PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

0
19. The authority citation for part 211 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.

Sec. 211.1 [Amended]

0
20. Section 211.1 is amended in the second sentence in paragraph (b)(3)
by removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR
106.2''.

Sec. 211.2 [Amended]

0
21. Section 211.2 is amended in the second sentence in paragraph (b) by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
22. The authority citation for part 212 continues to read as follows:

Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note,
1102, 1103, 1182 and note, 1184, 1185 note (section 7209 of Pub. L.
108-458), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR part 2.

Sec. 212.2 [Amended]

0
23. Section 212.2 is amended in paragraphs (b)(1), (c)(1)(ii), (d), and
(g)(1) by removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8
CFR 106.2''.

Sec. 212.3 [Amended]

0
24. Section 212.3 is amended in paragraph (a) by removing ``8 CFR

[[Page 46923]]

103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 212.4 [Amended]

0
25. Section 212.4 is amended in the first sentence in paragraph (b) by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 212.7 [Amended]

0
26. Section 212.7 is amended:
0
a. In paragraph (a)(1), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2'' in paragraph (a)(1); and
0
b. In paragraphs (e)(1) and (e)(5)(i), by removing ``8 CFR 103.7(b)''
and adding in its place ``8 CFR 106.2''.

Sec. 212.15 [Amended]

0
27. Section 212.15 is amended in paragraph (j)(2)(ii) by removing ``8
CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 212.18 [Amended]

0
28. Section 212.18 is amended in paragraph (a)(2) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

0
29. Section 212.19 is amended by revising paragraphs (b)(1), (c)(1),
(e), (h)(1), and (j) to read as follows:

Sec. 212.19 Parole for entrepreneurs.

* * * * *
(b) * * *
(1) Filing of initial parole request form. An alien seeking an
initial grant of parole as an entrepreneur of a start-up entity must
file Form I-941, Application for Entrepreneur Parole, with USCIS, with
the required fee, and supporting documentary evidence in accordance
with this section and the form instructions, demonstrating eligibility
as provided in paragraph (b)(2) of this section.
* * * * *
(c) * * *
(1) Filing of re-parole request form. Before expiration of the
initial period of parole, an entrepreneur parolee may request an
additional period of parole based on the same start-up entity that
formed the basis for his or her initial period of parole granted under
this section. To request such parole, an entrepreneur parolee must
timely file Form I-941, Application for Entrepreneur Parole, with
USCIS, with the required fee and supporting documentation in accordance
with the form instructions, demonstrating eligibility as provided in
paragraph (c)(2) of this section.
* * * * *
(e) Collection of biometric information. An alien seeking an
initial grant of parole or re-parole before October 2, 2020 will be
required to submit biometric information. An alien seeking an initial
grant of parole or re-parole may be required to submit biometric
information.
* * * * *
(h) * * *
(1) The entrepreneur's spouse and children who are seeking parole
as derivatives of such entrepreneur must individually file Form I-131,
Application for Travel Document. Such application must also include
evidence that the derivative has a qualifying relationship to the
entrepreneur and otherwise merits a grant of parole in the exercise of
discretion. Such spouse or child will be required to appear for
collection of biometrics in accordance with the form instructions or
upon request.
* * * * *
(j) Reporting of material changes. An alien granted parole under
this section must immediately report any material change(s) to USCIS.
If the entrepreneur will continue to be employed by the start-up entity
and maintain a qualifying ownership interest in the start-up entity,
the entrepreneur must submit a form prescribed by USCIS, with any
applicable fee in accordance with the form instructions to notify USCIS
of the material change(s). The entrepreneur parolee must immediately
notify USCIS in writing if he or she will no longer be employed by the
start-up entity or ceases to possess a qualifying ownership stake in
the start-up entity.
* * * * *

PART 214--NONIMMIGRANT CLASSES

0
30. The authority citation for part 214 continues to read as follows:

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1356, and 1372; sec.
643, Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114
Stat. 1477-1480; section 141 of the Compacts of Free Association
with the Federated States of Micronesia and the Republic of the
Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901
note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.

0
31. Section 214.1 is amended:
0
a. In paragraph (c)(1), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2'';
0
b. In paragraph (c)(2), by removing ``Sec. 103.7 of this chapter'' and
adding in its place ``8 CFR 106.2'';
0
c. By revising paragraph (c)(5); and
0
d. In paragraph (j) introductory text, by removing:
0
i. ``a Form I-129'' and adding in its place ``an application or
petition'' in the first sentence; and
0
ii. ``Form I-129'' and adding in its place ``application or petition''
in the second and third sentences.
The revision reads as follows:

Sec. 214.1 Requirements for admission, extension, and maintenance of
status.

* * * * *
(c) * * *
(5) Decision on application for extension or change of status.
Where an applicant or petitioner demonstrates eligibility for a
requested extension, it may be granted at the discretion of USCIS. The
denial of an application for extension of stay may not be appealed.
* * * * *

0
32. Section 214.2 is amended:
0
a. By revising paragraph (e)(8)(iii), the first sentence of paragraph
(e)(8)(iv) introductory text, and paragraphs (e)(8)(iv)(B) and
(e)(8)(v);
0
b. In paragraph (e)(20) introductory text and in two places in
paragraph (e)(21)(i), by removing ``Form I-129 and E Supplement'' and
adding in its place ``the form prescribed by USCIS'';
0
c. By revising paragraph (e)(23)(viii);
0
d. By removing and reserving paragraph (e)(23)(xv);
0
e. In paragraph (f)(9)(ii)(F)(1), by removing ``8 CFR 103.7(b)(1)'' and
adding in its place ``8 CFR 106.2'';
0
f. By revising paragraph (h)(2)(i)(A);
0
g. In paragraph (h)(2)(i)(B), by removing ``Form I-129'' and adding in
its place ``application or petition'' wherever it appears;
0
h. In paragraph (h)(2)(i)(D), by removing ``Form I-129'' and adding in
its place ``the form prescribed by USCIS'';
0
i. By revising paragraph (h)(2)(ii);
0
j. In paragraph (h)(5)(i)(A), by removing ``Form I-129'' and adding in
its place ``the form prescribed by USCIS'';
0
k. By revising paragraph (h)(5)(i)(B);
0
l. In paragraph (h)(6)(iii)(E), by removing ``I-129'' and adding in its
place ``the form prescribed by USCIS'';
0
m. In paragraph (h)(6)(vii), by removing ``Form I-129'' and adding in
its place ``application or petition'' wherever it appears;
0
n. In paragraphs (h)(11)(i)(A), (h)(14), and (h)(15)(i), by removing
``Form I-129'' and adding in its place ``the form prescribed by
USCIS'';
0
o. By revising paragraph (h)(19)(i);
0
p. In paragraph (h)(19)(vi)(A), by removing ``Petition for Nonimmigrant
Worker (Form I-129)'' and adding in its place ``the form prescribed by
USCIS'';
0
q. In paragraph (l)(2)(i), by removing ``Form I-129, Petition for
Nonimmigrant

[[Page 46924]]

Worker'' and adding in its place ``the form prescribed by USCIS'' in
its place;
0
r. In paragraphs (l)(2)(ii), (l)(3) introductory text, and (l)(4)(iv)
introductory text by removing ``Form I-129'' and adding in its place
``the form prescribed by USCIS'';
0
s. In paragraph (l)(5)(ii)(F), by removing ``Form I-129, Petition for
Nonimmigrant Worker'' and adding in its place ``the form prescribed by
USCIS'' in its place;
0
t. In paragraph (l)(14)(ii) introductory text, by removing ``Form I-
129'' and adding in its place ``application or petition'' wherever it
appears;
0
u. In paragraph (l)(17)(i), by removing ``Form I-129'' and adding in
its place ``the form prescribed by USCIS'' wherever it occurs;
0
v. By revising paragraph (m)(14)(ii) introductory text;
0
w. In paragraph (o)(2)(i), by removing ``Form I-129, Petition for
Nonimmigrant Worker'' and adding in its place ``the form prescribed by
USCIS'' in its place;
0
x. In paragraph (o)(2)(iv)(D), by removing ``Form I-129'' and adding in
its place ``the form prescribed by USCIS'';
0
y. By revising paragraph (o)(2)(iv)(F);
0
z. In paragraph (o)(2)(iv)(G), by removing ``Form I-129'' and adding in
its place ``application or petition'' wherever it appears;
0
aa. In paragraph (o)(11), by removing ``Form I-129, Petition for
Nonimmigrant Worker'' and adding in its place ``the form prescribed by
USCIS'' in its place;
0
bb. In paragraph (o)(12(i), by removing ``Form I-129'' and adding in
its place ``an application or petition'' in the first sentence;
0
cc. In paragraph (p)(2)(i), by removing ``Form I-129, Petition for
Nonimmigrant Worker'' and adding in its place ``the form prescribed by
USCIS'' in its place;
0
dd. In paragraph (p)(2)(iv)(C)(2), by removing ``Form I-129'' and
adding in its place ``application or petition'' wherever it appears;
0
ee. By revising paragraph (p)(2)(iv)(F);
0
ff. In paragraph (p)(2)(iv)(H), by removing ``Form I-129 petition'' and
adding in its place ``application or petition'';
0
gg. In paragraphs (p)(13) and (p)(14)(i), by removing ``Form I-129''
and adding in its place ``the form prescribed by USCIS'';
0
hh. In paragraph (q)(3)(i), by removing ``Form I-129, Petition for
Nonimmigrant Worker'' and adding in its place ``the form prescribed by
USCIS'';
0
ii. In the second sentence of paragraph (q)(3)(i) wherever it appears
and in paragraph (q)(4)(i), by removing ``Form I-129'' and adding in
its place ``application or petition'';
0
jj. In paragraph (q)(4)(iii), by removing ``Form I-129'' and adding in
its place ``the form prescribed by USCIS'';
0
kk. In the first sentence of paragraph (q)(5)(i), by removing ``Form I-
129, Petition for Nonimmigrant Worker'' and adding in its place ``the
form prescribed by USCIS'';
0
ll. In the second sentence of paragraph (q)(5)(i), by removing ``Form
I-129'' and adding in its place ``the form prescribed by USCIS'';
0
mm. In paragraph (q)(6), by removing ``Form I-129'' and adding in its
place ``application or petition'';
0
nn. By revising paragraph (r)(3) introductory text and the definition
of ``Petition'' in paragraph (r)(3);
0
oo. By revising paragraph (r)(5);
0
pp. In paragraph (r)(13), by removing ``8 CFR 103.7(b)(1)'' and adding
in its place ``8 CFR 106.2''; and
0
qq. By revising paragraphs (w)(5), (w)(15)(iii), and (w)(16).
The revisions read as follows:

Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.

* * * * *
(e) * * *
(8) * * *
(iii) Substantive changes. Approval of USCIS must be obtained where
there will be a substantive change in the terms or conditions of E
status. The treaty alien must file a new application in accordance with
the instructions on the form prescribed by USCIS requesting extension
of stay in the United States, plus evidence of continued eligibility
for E classification in the new capacity. Or the alien may obtain a
visa reflecting the new terms and conditions and subsequently apply for
admission at a port-of-entry. USCIS will deem there to have been a
substantive change necessitating the filing of a new application where
there has been a fundamental change in the employing entity's basic
characteristics, such as a merger, acquisition, or sale of the division
where the alien is employed.
(iv) * * * Neither prior approval nor a new application is required
if there is no substantive, or fundamental, change in the terms or
conditions of the alien's employment which would affect the alien's
eligibility for E classification. * * *
* * * * *
(B) Request a new approval notice reflecting the non-substantive
change by filing an application with a description of the change, or;
* * * * *
(v) Advice. To request advice from USCIS as to whether a change is
substantive, an alien may file an application with a complete
description of the change. In cases involving multiple employees, an
alien may request that USCIS determine if a merger or other corporate
restructuring requires the filing of separate applications by filing a
single application and attaching a list of the related receipt numbers
for the employees involved and an explanation of the change or changes.
* * * * *
(23) * * *
(viii) Information for background checks. USCIS may require an
applicant for E-2 CNMI Investor status, including but not limited to
any applicant for derivative status as a spouse or child, to submit
biometrics as required under 8 CFR 103.16.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) General. A United States employer seeking to classify an alien
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition
on the form prescribed by USCIS in accordance with the form
instructions.
* * * * *
(ii) Multiple beneficiaries. Up to 25 named beneficiaries may be
included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries
will be performing the same service, or receiving the same training,
for the same period, and in the same location. If more than 25 named
beneficiaries are being petitioned for, an additional petition is
required. Petitions for H-2A and H-2B workers from countries not
designated in accordance with paragraph (h)(6)(i)(E) of this section
must be filed separately.
* * * * *
(5) * * *
(i) * * *
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same temporary labor
certification may not exceed the number of workers indicated on that
document. A single petition can include more than one named beneficiary
if the total number is 25 or less and does not exceed the number of
positions indicated on the relating temporary labor certification.
* * * * *
(19) * * *
(i) A United States employer (other than an exempt employer defined
in paragraph (h)(19)(iii) of this section, or an employer filing a
petition described in paragraph (h)(19)(v) of this section) who files a
petition or application must include the additional American

[[Page 46925]]

Competitiveness and Workforce Improvement Act (ACWIA) fee referenced in
8 CFR 106.2, if the petition is filed for any of the following
purposes:
* * * * *
(m) * * *
(14) * * *
(ii) Application. A M-1 student must apply for permission to accept
employment for practical training on Form I-765, with fee as contained
in 8 CFR part 106, accompanied by a properly endorsed Form I-20 by the
designated school official for practical training. The application must
be submitted before the program end date listed on the student's Form
I-20 but not more than 90 days before the program end date. The
designated school official must certify on Form I-538 that--
* * * * *
(o) * * *
(2) * * *
(iv) * * *
(F) Multiple beneficiaries. More than one O-2 accompanying alien
may be included on a petition if they are assisting the same O-1 alien
for the same events or performances, during the same period, and in the
same location. Up to 25 named beneficiaries may be included per
petition.
* * * * *
(p) * * *
(2) * * *
(iv) * * *
(F) Multiple beneficiaries. More than one beneficiary may be
included in a P petition if they are members of a team or group, or if
they will provide essential support to P-1, P-2, or P-3 beneficiaries
performing in the same location and in the same occupation. Up to 25
named beneficiaries may be included per petition.
* * * * *
(r) * * *
(3) Definitions. As used in this section, the term:
* * * * *
Petition means the form or as may be prescribed by USCIS, a
supplement containing attestations required by this section, and the
supporting evidence required by this part.
* * * * *
(5) Extension of stay or readmission. An R-1 alien who is
maintaining status or is seeking readmission and who satisfies the
eligibility requirements of this section may be granted an extension of
R-1 stay or readmission in R-1 status for the validity period of the
petition, up to 30 months, provided the total period of time spent in
R-1 status does not exceed a maximum of five years. A Petition for a
Nonimmigrant Worker to request an extension of R-1 status must be filed
by the employer with a supplement prescribed by USCIS containing
attestations required by this section, the fee specified in 8 CFR part
106, and the supporting evidence, in accordance with the applicable
form instructions.
* * * * *
(w) * * *
(5) Petition requirements. An employer who seeks to classify an
alien as a CW-1 worker must file a petition with USCIS and pay the
requisite petition fee plus the CNMI education funding fee and the
fraud prevention and detection fee as prescribed in the form
instructions and 8 CFR part 106. If the beneficiary will perform
services for more than one employer, each employer must file a separate
petition with fees with USCIS.
* * * * *
(15) * * *
(iii) If the eligible spouse and/or minor child(ren) are present in
the CNMI, the spouse or child(ren) may apply for CW-2 dependent status
on Form I-539 (or such alternative form as USCIS may designate) in
accordance with the form instructions. The CW-2 status may not be
approved until approval of the CW-1 petition.
(16) Biometrics and other information. The beneficiary of a CW-1
petition or the spouse or child applying for a grant or, extension of
CW-2 status, or a change of status to CW-2 status, must submit
biometric information as requested by USCIS.
* * * * *

Sec. 214.3 [Amended]

0
33. Section 214.3 is amended:
0
a. In paragraph (h)(1)(i), by removing ``8 CFR 103.7(b)(1)'' and adding
in its place ``8 CFR 106.2''; and
0
b. In paragraph (h)(2) introductory text, by removing ``8 CFR
103.7(b)(1)(ii)(B)'' and adding in its place ``8 CFR 103.7(d)(2)''.

Sec. 214.6 [Amended]

0
34. Section 214.6 is amended in paragraphs (g)(1), (h)(1)(i), (h)(2),
and (i)(2) by removing ``8 CFR 103.7(b)(1)'' and adding in its place
``8 CFR 106.2''.

Sec. 214.11 [Amended]

0
35. Section 214.11 is amended in paragraphs (d)(2)(iii) and (k)(1) by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

0
36. Section 214.14 is amended by revising paragraph (c)(1) introductory
text to read as follows:

Sec. 214.14 Alien victims of certain qualifying criminal activity.

* * * * *
(c) * * *
(1) Filing a petition. USCIS has sole jurisdiction over all
petitions for U nonimmigrant status. An alien seeking U-1 nonimmigrant
status must submit, Form I-918, Petition for U Nonimmigrant Status, and
initial evidence to USCIS in accordance with this paragraph and the
instructions to Form I-918. A petitioner who received interim relief is
not required to submit initial evidence with Form I-918 if he or she
wishes to rely on the law enforcement certification and other evidence
that was submitted with the request for interim relief.
* * * * *

PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS

0
37. The authority citation for part 216 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.

Sec. 216.4 [Amended]

0
38. Section 216.4 is amended in paragraph (a)(1) by removing ``Sec.
103.7(b) of this chapter'' and adding in its place ``8 CFR 106.2''.

Sec. 216.5 [Amended]

0
39. Section 216.5 is amended in paragraph (b) by removing ``Sec.
103.7(b) of this Chapter'' and adding in its place ``8 CFR 106.2''.

Sec. 216.6 [Amended]

0
40. Section 216.6 is amended in paragraph (a)(1)(i) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 217--VISA WAIVER PROGRAM

0
41. The authority citation for part 217 continues to read as follows:

Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.

Sec. 217.2 [Amended]

0
42. Section 217.2 is amended in paragraph (c)(2) by removing ``Sec.
103.7(b)(1) of this chapter'' and adding in its place ``8 CFR
103.7(d)(4)''.

PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE
PAROLE DOCUMENTS

0
43. The authority citation for part 223 continues to read as follows:

Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226,
1227, 1251; Protocol

[[Page 46926]]

Relating to the Status of Refugees, November 1, 1968, 19 U.S.T. 6223
(TIAS) 6577; 8 CFR part 2.

Sec. 223.2 [Amended]

0
44. Section 223.2 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
45. The authority citation for part 235 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p.278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of
Public Law 110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458); Pub. L. 112-54.

Sec. 235.1 [Amended]

0
46. Section 235.1 is amended in paragraphs (g)(1)(iii) and (g)(2) by
removing ``Sec. 103.7(b)(1) of this chapter'' and adding in its place
``8 CFR 103.7(d)(3)''.

Sec. 235.7 [Amended]

0
47. Section 235.7 is amended in paragraph (a)(4)(v) by removing ``Sec.
103.7(b)(1) of this chapter'' and ``Sec. 103.7(b)(1)'' and adding in
their place ``8 CFR 103.7(d)(7)''.

Sec. 235.12 [Amended]

0
48. Section 235.12 is amended in paragraph (d)(2) by removing ``8 CFR
103.7(b)(1)(ii)(M)'' and adding in its place ``8 CFR 103.7(d)(13)''.

Sec. 235.13 [Amended]

0
49. Section 235.13 is amended in paragraph (c)(5) by removing ``8 CFR
103.7(b)(1)(ii)(N)'' and adding in its place ``8 CFR 103.7(d)(14)''.

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

0
50. The authority citation for part 236 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224,
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part
2.

Sec. 236.14 [Amended]

0
51. Section 236.14 is amended in paragraph (a) by removing ``Sec.
103.7(b)(1) of this chapter'' and adding in its place ``8 CFR 106.2''.

Sec. 236.15 [Amended]

0
52. Section 236.15 is amended in paragraph (e) by removing ``Sec.
103.7(b)(1) of this chapter'' and adding in its place ``8 CFR 106.2''.

PART 240--VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND
SPECIAL RULE CANCELLATION OF REMOVAL

0
53. The authority citation for part 240 continues to read as follows:

Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat.
2681); 8 CFR part 2.

0
54. Section 240.63 is amended by revising paragraph (a) to read as
follows:

Sec. 240.63 Application process.

(a) Form and fees. Except as provided in paragraph (b) of this
section, the application must be made on the form prescribed by USCIS
for this program and filed in accordance with the instructions for that
form. An applicant who submitted to EOIR a completed Form EOIR-40,
Application for Suspension of Deportation, before the effective date of
the form prescribed by USCIS may apply with the Service by submitting
the completed Form EOIR-40 attached to a completed first page of the
application. Each application must be filed with the required fees as
provided in 8 CFR 106.2.
* * * * *

PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES

0
55. The authority citation for part 244 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

Sec. 244.6 [Amended]

0
56. Section 244.6 is revised to read as follows:

Sec. 244.6 Application.

(a) An application for Temporary Protected Status must be submitted
in accordance with the form instructions, the applicable country-
specific Federal Register notice that announces the procedures for TPS
registration or re-registration and, except as otherwise provided in
this section, with the appropriate fees as described in 8 CFR part 106.
(b) An applicant for TPS may also request an employment
authorization document pursuant to 8 CFR 274a by filing an Application
for Employment Authorization in accordance with the form instructions
and in accordance with 8 CFR 106.2 and 106.3.

0
57. Section 244.17 is amended by revising paragraph (a) to read as
follows:

Sec. 244.17 Periodic registration.

(a) Aliens granted Temporary Protected Status must re-register
periodically in accordance with USCIS instructions. Such registration
applies to nationals of those foreign states designated for more than
one year by DHS or where a designation has been extended for a year or
more. Applicants for re-registration must apply during the period
provided by USCIS. Re-registration applicants do not need to pay the
fee that was required for initial registration except the biometric
services fee, unless that fee is waived in the applicable form
instructions, and if requesting an employment authorization document,
the application fee for an Application for Employment Authorization. By
completing the application, applicants attest to their continuing
eligibility. Such applicants do not need to submit additional
supporting documents unless USCIS requests that they do so.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

0
58. The authority citation for part 204 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100,
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

Sec. 245.7 [Amended]

0
59. Section 245.7 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 245.10 [Amended]

0
60. Section 245.10 is amended in paragraph (c) introductory text by
removing ``Sec. 103.7(b)(1) of this chapter'' and adding in its place
``8 CFR 106.2''.

Sec. 245.15 [Amended]

0
61. Section 245.15 is amended:
0
a. In paragraph (c)(2)(iv)(A), by removing ``Sec. 103.7(b)(1) of this
chapter'' and adding in its place ``8 CFR 106.2'';
0
b. By removing and reserving paragraph (c)(2)(iv)(B);
0
c. In paragraph (g)(1), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2'';
0
d. In paragraph (h)(1), by removing ``Sec. 103.7(b)(1) of this
chapter'' and adding in its place ``8 CFR 106.2'';
0
e. By removing and reserving paragraph (h)(2); and

[[Page 46927]]

0
f. In paragraphs (n)(1), (t)(1), and (t)(2)(i), by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 245.18 [Amended]

0
62. Section 245.18 is amended in paragraphs (d)(1) and (k) by removing
``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 245.21 [Amended]

0
63. Section 245.21 is amended:
0
a. In paragraph (b), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2'' in the first sentence and removing the second
sentence; and
0
b. In paragraphs (f), (h), and (i), by removing ``8 CFR 103.7(b)(1)''
and adding in its place ``8 CFR 106.2''.

Sec. 245.23 [Amended]

0
64. Section 245.23 is amended in paragraph (e)(1)(ii) by removing ``8
CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2'' and by
removing and reserving paragraph (e)(1)(iii).

Sec. 245.24 [Amended]

0
65. Section 245.24 is amended:
0
a. In paragraph (d)(2), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2'' and by removing and reserving paragraph
(d)(3); and
0
b. In paragraphs (h)(1)(ii) and (i)(1)(iii), by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2'' and by removing
paragraph (i)(1)(iv).

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE
IMMIGRATION AND NATIONALITY ACT

0
66. The authority citation for part 245a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

0
67. Section 245a.2 is amended by revising paragraph (e)(3) to read as
follows:

Sec. 245a.2 Application for temporary residence.

* * * * *
(e) * * *
(3) A separate application must be filed by each applicant with the
fees required by 8 CFR 106.2.
* * * * *

0
68. Section 245a.3 is amended by revising paragraph (d)(3) to read as
follows:

Sec. 245a.3 Application for adjustment from temporary to permanent
resident status.

* * * * *
(d) * * *
(3) A separate application must be filed by each applicant with the
fees required by 8 CFR 106.2.
* * * * *

0
69. Section 245a.4 is amended by revising paragraph (b)(5)(iii) to read
as follows:

Sec. 245a.4 Adjustment to lawful resident status of certain
nationals of countries for which extended voluntary departure has been
made available.

* * * * *
(b) * * *
(5) * * *
(iii) A separate application must be filed by each applicant with
the fees required by 8 CFR 106.2.
* * * * *

0
70. Section 245a.12 is amended:
0
a. In paragraphs (b) introductory text and (c), by removing ``Missouri
Service Center'' and adding in its place ``National Benefit Center'';
0
b. By revising paragraph (d) introductory text;
0
c. In paragraph (d)(1), by removing ``8 CFR 103.7(b)(1)'' and adding in
its place ``8 CFR 106.2''; and
0
d. By removing and reserving paragraphs (d)(2), (4), and (6).
The revision reads as follows:

Sec. 245a.12 Filing and applications.

* * * * *
(d) Application and supporting documentation. Each applicant for
LIFE Legalization adjustment of status must submit the form prescribed
by USCIS completed in accordance with the form instructions accompanied
by the required evidence.
* * * * *

Sec. 245a.13 [Amended]

0
71. Section 245a.13 is amended:
0
a. In paragraphs (d)(1) and (e)(1), by removing ``Sec. 103.7(b)(1) of
this chapter'' and adding in its place ``8 CFR 106.2''; and
0
b. In paragraph (e) introductory text and (e)(1), by removing
``Missouri Service Center'' and adding in its place ``National Benefit
Center''; and

Sec. 245a.18 [Amended]

0
72. Section 245a.18 is amended in paragraph (c)(1) by removing
``Missouri Service Center'' and adding in its place ``National Benefit
Center'' in paragraph (c)(1).

Sec. 245a.19 [Amended]

0
73. Section 245a.19 is amended in paragraph (a) by removing ``Missouri
Service Center'' and adding in its place ``National Benefit Center''.

Sec. 245a.20 [Amended]

0
74. Section 245a.20 is amended in paragraph (a)(2) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 245a.33 [Amended]

0
75. Section 245a.33 is amended in paragraph (a) by removing ``Sec.
103.7(b)(1) of this chapter'' and adding in its place ``8 CFR 106.2''
and in paragraphs (a) and (b) by removing ``Missouri Service Center''
and adding in its place ``National Benefit Center''.

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

0
76. The authority citation for part 248 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

Sec. 248.3 [Amended]

0
77. Section 248.3 is amended in the introductory text by removing ``8
CFR 103.7(b)'' and adding in its place ``8 CFR 106.2'' in its place and
in paragraph (h) introductory text by removing ``8 CFR 103.7(b)(1)''
and adding in its place ``8 CFR 106.2''.

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES

0
78. The authority citation for part 248 continues to read as follows:

Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.

Sec. 264.2 [Amended]

0
79. Section 264.2 is amended in paragraphs (c)(1)(i) and (c)(2)(i) by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 264.5 [Amended]

0
80. Section 264.5 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Sec. 264.6 [Amended]

0
81. Section 264.6 is amended in paragraph (b) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
82. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2; Pub. L. 101-410,

[[Page 46928]]

104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

0
83. Section 274a.12 is amended by revising paragraphs (b)(9), (13), and
(14) to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *
(b) * * *
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3),
pursuant to 8 CFR 214.2(h), or a nonimmigrant specialty occupation
worker pursuant to sections 101(a)(15)(H)(i)(b)(1),
101(a)(15)(H)(ii)(a), 101(a)(15)(H)(ii)(b) and INA 101(a)(15)(H)(iii)
of the Act. An alien in this status may be employed only by the
petitioner through whom the status was obtained. In the case of a
professional H-2B athlete who is traded from one organization to
another organization, employment authorization for the player will
automatically continue for a period of 30 days after acquisition by the
new organization, within which time the new organization must file a
new petition for H-2B classification. If a new petition is not filed
within 30 days, employment authorization will cease. If a new petition
is filed within 30 days, the professional athlete's employment
authorization will continue until the petition is adjudicated. If the
new petition is denied, employment authorization will cease. In the
case of a nonimmigrant with H-1B status, employment authorization will
automatically continue upon the filing of a qualifying petition under 8
CFR 214.2(h)(2)(i)(H) until such petition is adjudicated, in accordance
with section 214(n) of the Act and 8 CFR 214.2(h)(2)(i)(H);
* * * * *
(13) An alien having extraordinary ability in the sciences, arts,
education, business, or athletics (O-1), and an accompanying alien (O-
2), pursuant to 8 CFR 214.2(o). An alien in this status may be employed
only by the petitioner through whom the status was obtained. In the
case of a professional O-1 athlete who is traded from one organization
to another organization, employment authorization for the player will
automatically continue for a period of 30 days after the acquisition by
the new organization, within which time the new organization is
expected to file a new petition for O nonimmigrant classification. If a
new petition is not filed within 30 days, employment authorization will
cease. If a new petition is filed within 30 days, the professional
athlete's employment authorization will continue until the petition is
adjudicated. If the new petition is denied, employment authorization
will cease.
(14) An athlete, artist, or entertainer (P-1, P-2, or P-3),
pursuant to 8 CFR 214.2(p). An alien in this status may be employed
only by the petitioner through whom the status was obtained. In the
case of a professional P-1 athlete who is traded from one organization
to another organization, employment authorization for the player will
automatically continue for a period of 30 days after the acquisition by
the new organization, within which time the new organization is
expected to file a new petition for P-1 nonimmigrant classification. If
a new petition is not filed within 30 days, employment authorization
will cease. If a new petition is filed within 30 days, the professional
athlete's employment authorization will continue until the petition is
adjudicated. If the new petition is denied, employment authorization
will cease;
* * * * *

PART 286--IMMIGRATION USER FEE

0
84. The authority citation for part 286 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1356; Title VII of Public Law
110-229; 8 CFR part 2.

Sec. 286.9 [Amended]

0
85. Section 286.9 is amended in paragraph (a) by removing ``Sec.
103.7(b)(1)'' and adding in its place ``8 CFR 103.7(d)''.

PART 301--NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

0
86. The authority citation for part 301 continues to read as follows:

Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.

Sec. 301.1 [Amended]

0
87. Section 301.1 is amended in paragraph (a)(1) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 319--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
SPOUSES OF UNITED STATES CITIZENS

0
88. The authority citation for part 319 continues to read as follows:

Authority: 8 U.S.C. 1103, 1430, 1443.

Sec. 319.11 [Amended]

0
89. Section 319.11 is amended in paragraph (a) introductory text by
removing ``8 CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 320--CHILD BORN OUTSIDE THE UNITED STATES AND RESIDING
PERMANENTLY IN THE UNITED STATES; REQUIREMENTS FOR AUTOMATIC
ACQUISITION OF CITIZENSHIP

0
90. The authority citation for part 320 continues to read as follows:

Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.

Sec. 320.5 [Amended]

0
91. Section 320.5 is amended in paragraphs (b) and (c) by removing ``8
CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 322--CHILD BORN OUTSIDE THE UNITED STATES; REQUIREMENTS FOR
APPLICATION FOR CERTIFICATE OF CITIZENSHIP

0
92. The authority citation for part 322 continues to read as follows:

Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.

Sec. 322.3 [Amended]

0
93. Section 322.3 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2'' and in paragraph
(b)(1) introductory text by removing ``Sec. 103.7(b)(1) of this
chapter'' and adding in its place ``8 CFR 106.2''.

Sec. 322.5 [Amended]

0
94. Section 322.5 is amended in paragraphs (b) and (c) by removing ``8
CFR 103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 324--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: WOMEN
WHO HAVE LOST UNITED STATES CITIZENSHIP BY MARRIAGE AND FORMER
CITIZENS WHOSE NATURALIZATION IS AUTHORIZED BY PRIVATE LAW

0
95. The authority citation for part 324 continues to read as follows:

Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 1101 note.

Sec. 324.2 [Amended]

0
96. Section 324.2 is amended in paragraph (b) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 334--APPLICATION FOR NATURALIZATION

0
97. The authority citation for part 334 continues to read as follows:

Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.

[[Page 46929]]

Sec. 334.2 [Amended]

0
98. Section 334.2 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

PART 341--CERTIFICATES OF CITIZENSHIP

0
99. The authority citation for part 341 continues to read as follows:

Authority: Pub. L. 82-414, 66 Stat. 173, 238, 254, 264, as
amended; 8 U.S.C. 1103, 1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR
part 2.

Sec. 341.1 [Amended]

0
100. Section 341.1 is amended by removing ``8 CFR 103.7(b)(1)'' and
adding in its place ``8 CFR 106.2''.

Sec. 341.5 [Amended]

0
101. Section 341.5 is amended in paragraph (e) by removing ``8 CFR
103.7'' and adding in its place ``8 CFR 106.2''.

PART 343a--NATURALIZATION AND CITIZENSHIP PAPERS LOST, MUTILATED,
OR DESTROYED; NEW CERTIFICATE IN CHANGED NAME; CERTIFIED COPY OF
REPATRIATION PROCEEDINGS

0
102. The authority citation for part 343a continues to read as follows:

Authority: 8 U.S.C. 1101 note, 1103, 1435, 1443, 1454, and 1455.

Sec. 343a.1 [Amended]

0
103. Section 343a.1 is amended in paragraph (a) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR part 106''.

PART 343b--SPECIAL CERTIFICATE OF NATURALIZATION FOR RECOGNITION BY
A FOREIGN STATE

0
104. The authority citation for part 343b continues to read as follows:

Authority: 8 U.S.C. 1103, 1443, 1454, 1455.

Sec. 343b.1 [Amended]

0
105. Section 343b.1 is amended by removing the term ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2'' in the first
sentence.

PART 392--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
PERSONS WHO DIE WHILE SERVING ON ACTIVE DUTY WITH THE UNITED STATES
ARMED FORCES DURING CERTAIN PERIODS OF HOSTILITIES

0
106. The authority citation for part 392 continues to read as follows:

Authority: 8 U.S.C. 1103, 1440 and note, and 1440-1; 8 CFR part
2.

Sec. 392.4 [Amended]

0
107. Section 392.4 is amended in paragraph (e) by removing ``8 CFR
103.7(b)(1)'' and adding in its place ``8 CFR 106.2''.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel for DHS.
[FR Doc. 2020-16389 Filed 7-31-20; 8:45 am]
BILLING CODE 9111-97-P