Fr

46788

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

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
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:

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.
SUMMARY:

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:

khammond on DSKJM1Z7X2PROD with RULES2

FOR FURTHER INFORMATION CONTACT:

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

46789

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
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 and
safeguarding its integrity and promise
by efficiently and fairly adjudicating
requests for immigration benefit, 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.
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
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 nonexhaustive list of some of the costs that DHS may
consider part of the full costs of providing
adjudication and naturalization services. See INA

E:\FR\FM\03AUR2.SGM

Continued

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46790

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

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
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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).
• 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 selfpetitioning 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).
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).

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

• 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

E:\FR\FM\03AUR2.SGM

03AUR2

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

46791

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

TABLE 1—NON-STATUTORY IEFA IMMIGRATION BENEFIT REQUEST FEES
Current fee
$

Immigration benefit request
I–90 Application to Replace Permanent Resident Card (online filing) ............
I–90 Application to Replace Permanent Resident Card (paper filing) ............
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document .....................................................................................................
I–129 Petition for a Nonimmigrant worker .......................................................
I–129CW, I–129E&TN, and I–129MISC ...................................................
I–129H1 ....................................................................................................
I–129H2A—Named Beneficiaries .............................................................
I–129H2B—Named Beneficiaries .............................................................
I–129L .......................................................................................................
I–129O ......................................................................................................
I–129H2A—Unnamed Beneficiaries .........................................................
I–129H2B—Unnamed Beneficiaries .........................................................
I–129F Petition for Alien Fiance´(e) ..................................................................
I–130 Petition for Alien Relative (online filing) ................................................
I–130 Petition for Alien Relative (paper filing) .................................................
I–131 Application for Travel Document ...........................................................
I–131 Refugee Travel Document for an individual age 16 or older ................
I–131 Refugee Travel Document for a child under the age of 16 ..................
I–131A Application for Travel Document (Carrier Documentation) .................
I–140 Immigrant Petition for Alien Worker ......................................................
I–191 Application for Relief Under Former Section 212(c) of the Immigration
and Nationality Act (INA) .............................................................................
I–192 Application for Advance Permission to Enter as Nonimmigrant
(CBP) 4 ..........................................................................................................
I–192 Application for Advance Permission to Enter as Nonimmigrant
(USCIS) ........................................................................................................
I–193 Application for Waiver of Passport and/or Visa ....................................
I–212 Application for Permission to Reapply for Admission into the U.S.
After Deportation or Removal ......................................................................
I–290B Notice of Appeal or Motion .................................................................
I–360 Petition for Amerasian, Widow(er), or Special Immigrant .....................
I–485 Application to Register Permanent Residence or Adjust Status 5 ........

khammond on DSKJM1Z7X2PROD with RULES2

I–526 Immigrant Petition by Alien Investor ......................................................
I–539 Application to Extend/Change Nonimmigrant Status (online filing) ......
I–539 Application to Extend/Change Nonimmigrant Status (paper filing) .......
I–589 Application for Asylum and for Withholding of Removal .......................
I–600/600A Adoption Petitions and Applications ............................................
I–600A Supplement 3 Request for Action on Approved Form I–600A ...........
I–601 Application for Waiver of Ground of Excludability .................................
I–601A Provisional Unlawful Presence Waiver ...............................................
I–612 Application for Waiver of the Foreign Residence Requirement (Under
Section 212(e) of the INA, as Amended) ....................................................
I–687 Application for Status as a Temporary Resident ..................................
I–690 Application for Waiver of Grounds of Inadmissibility .............................
I–694 Notice of Appeal of Decision- ................................................................
I–698 Application to Adjust Status from Temporary to Permanent Resident
(Under Section 245A of the INA) .................................................................
I–751 Petition to Remove Conditions on Residence .......................................
I–765 Application for Employment Authorization (Non-DACA) .......................
I–765 Application for Employment Authorization (DACA only) 6 .....................
I–800/800A Adoption Petitions and Applications ............................................
I–800A Supplement 3 Request for Action on Approved Form I–800A ...........
I–817 Application for Family Unity Benefits .....................................................
I–824 Application for Action on an Approved Application or Petition .............
I–829 Petition by Investor to Remove Conditions ...........................................
I–881 Application for Suspension of Deportation or Special Rule Cancellation of Removal 7 ..........................................................................................
I–910 Application for Civil Surgeon Designation .............................................
I–924 Application For Regional Center Designation Under the Immigrant Investor Program .............................................................................................
I–924A Annual Certification of Regional Center ..............................................
I–929 Petition for Qualifying Family Member of a U–1 Nonimmigrant ...........
N–300 Application to File Declaration of Intention ..........................................
N–336 Request for Hearing on a Decision in Naturalization Proceedings
(online filing) .................................................................................................

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

Final fee
$

Change
($)

Percentage
change

455
455

405
415

¥50
¥40

¥11
¥9

445
460
460
460
460
460
460
460
460
460
535
535
535
575
135
105
575
700

485
N/A
695
555
850
715
805
705
415
385
510
550
560
590
145
115
1,010
555

40
N/A
235
95
390
255
345
245
¥45
¥75
¥25
15
25
15
10
10
435
¥145

9
N/A
51
21
85
55
75
53
¥10
¥16
¥5
3
5
3
7
10
76
¥21

930

790

¥140

¥15

585

1,400

815

139

930
585

1,400
2,790

470
2,205

51
377

930
675
435
1,140
750
3,675
370
370
0
775
N/A
930
630

1,050
700
450
1,130
1,130
4,010
390
400
50
805
400
1,010
960

120
25
15
¥10
380
335
20
30
50
30
N/A
80
330

13
4
3
¥1
51
9
5
8
N/A
4
N/A
9
52

930
1,130
715
890

515
1,130
765
715

¥415
0
50
¥175

¥45
0
7
¥20

1,670
595
410
410
775
385
600
465
3,750

1,615
760
550
410
805
400
590
495
3,900

¥55
165
140
0
30
15
¥10
30
150

¥3
28
34
0
4
4
¥2
6
4

285
570
785

1,810
1,810
635

1,525
1,240
¥150

535
218
¥19

17,795
3,035
230
270

17,795
4,465
1,485
1,305

0
1,430
1,255
1,035

0
47
546
383

700

1,725

1,025

146

E:\FR\FM\03AUR2.SGM

03AUR2

46792

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
TABLE 1—NON-STATUTORY IEFA IMMIGRATION BENEFIT REQUEST FEES—Continued
Current fee
$

Immigration benefit request
N–336 Request for Hearing on a Decision in Naturalization Proceedings
(paper filing) .................................................................................................
N–400 Application for Naturalization (online filing) .........................................
N–400 Application for Naturalization (paper filing)8 ........................................
N–470 Application to Preserve Residence for Naturalization Purposes .........
N–565 Application for Replacement Naturalization/Citizenship Document
(online filing) .................................................................................................
N–565 Application for Replacement Naturalization/Citizenship Document
(paper filing) .................................................................................................
N–600 Application for Certificate of Citizenship (online filing) ........................
N–600 Application for Certificate of Citizenship (paper filing) .........................
N–600K Application for Citizenship and Issuance of Certificate (online filing)
N–600K Application for Citizenship and Issuance of Certificate (paper filing)
USCIS Immigrant Fee .....................................................................................
Biometric Services (Non¥DACA) 9 .................................................................
Biometric Services (DACA only) 10 ..................................................................
G–1041 Genealogy Index Search Request (online filing) ...............................
G–1041 Genealogy Index Search Request (paper filing) ...............................
G–1041A Genealogy Records Request (online filing) ....................................
G–1041A Genealogy Records Request (paper filing) .....................................

khammond on DSKJM1Z7X2PROD with RULES2

D. Summary of Costs and Benefits
Executive Orders (E.O.) 12866 and
13563 direct agencies to assess the costs
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

Fmt 4701

Sfmt 4700

Percentage
change

1,735
1,160
1,170
1,170
1,585

1,035
520
530
850
1,230

148
81
83
226
346

555

535

¥20

¥4

555
1,170
1,170
1,170
1,170
220
85
85
65
65
65
65

545
990
1,000
935
945
190
30
85
160
170
255
265

¥10
¥180
¥170
¥235
¥225
¥30
¥55
0
95
105
190
200

¥2
¥15
¥15
¥20
¥19
¥14
¥65
0
146
162
292
308

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).

Frm 00006

Change
($)

700
640
640
320
355

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

PO 00000

Final fee
$

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
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 feepaying 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 feepaying receipts, excluding biometric
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).

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

those EOIR applications, appeals, and
motions that are subject to an EOIRdetermined 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.
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’ nonpremium 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
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.
18 In April 2020, USCIS revised its internal
annual operating plan revenue projections based on

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

46793

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.
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–
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.

E:\FR\FM\03AUR2.SGM

03AUR2

46794

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

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
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
Comparison

FY 2020

FY 2019/2020 average

Non-Premium Revenue .............................................................................................
Non-Premium Budget ................................................................................................

$3,408,233,376
$4,331,978,119

$3,408,233,376
$4,556,386,463

$3,408,233,376
$4,444,182,291

Difference ...........................................................................................................

($923,744,743)

($1,148,153,087)

($1,035,948,915)

D. Final Rule

khammond on DSKJM1Z7X2PROD with RULES2

FY 2019

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
19 Available at https://www.whitehouse.gov/wpcontent/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/wpcontent/uploads/2018/06/a11_2018.pdf (last
viewed 03/06/2020).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
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.
23 Of the 43,108 public comment submissions
received, 12,114 were posted to

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

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
www.regulations.gov. The other 30,994 submissions
were designated ‘‘inactive—do not post’’ and
included form copies, duplicates, and non-germane
submissions.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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 farreaching 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

• 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 middleincome 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.

PO 00000

Frm 00009

Fmt 4701

Sfmt 4700

46795

• 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
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
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).

E:\FR\FM\03AUR2.SGM

03AUR2

46796

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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:

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

Æ Failure to revise policies to keep
costs within current fees;
Æ Failure to hire and train already
budgeted staff;
Æ Extensive and frivolous use of a
Request for Evidence (RFE) and Notice
of Intent to Deny (NOID);
Æ ‘‘Extreme vetting’’;
Æ Lengthy suspension of longstanding
premium processing services for certain
applications;
Æ The current lockbox system;
Æ Increased and unnecessary inperson interviews;
Æ Ramped up denaturalization efforts;
Æ Resources spent litigating
improperly denied applications; and
Æ 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

PO 00000

Frm 00010

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
3. Proposed Fees Are
Unconstitutional 25

4. Rule Will Have Negative Effects on
Applicants

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
• 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.

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 lowincome immigrants would yield poor
health outcomes among children.
• The proposal, along with other
policies, serves to disrupt access to
programs that address social

25 For constitutional claims against the $50
asylum fee see the General Comments on the
Asylum Fee section of this preamble.
26 The commenter likely meant the equal
protection component of the Fifth Amendment Due
Process Clause.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00011

Fmt 4701

Sfmt 4700

46797

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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46798

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

• 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 lowskill jobs.
• The proposed rule would increase
unemployment among immigrant
workers.
• The proposed fee increases and the
revocation of fee waivers would

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 lowincome immigrants from applying for
citizenship, as well as a 40 percent
increase in application rates when lowincome 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

PO 00000

Frm 00013

Fmt 4701

Sfmt 4700

46799

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 beneficiarypays 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46800

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

become finalized. One commenter wrote
that the proposal would present
challenges for non-profit organizations
providing legal assistance to lowincome 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.

PO 00000

Frm 00014

Fmt 4701

Sfmt 4700

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 underresourced 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 lowincome 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 userfriendly, 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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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 DACAqualified 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-topaycheck 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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:

PO 00000

Frm 00015

Fmt 4701

Sfmt 4700

46801

• 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46802

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00016

Fmt 4701

Sfmt 4700

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
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
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).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 rulemaking 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

PO 00000

Frm 00017

Fmt 4701

Sfmt 4700

46803

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46804

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

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00018

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 costassignment 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

PO 00000

Frm 00019

Fmt 4701

Sfmt 4700

46805

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 mixedstatus 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46806

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

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 lowincome individuals by serving as a
‘‘metaphorical border wall.’’
Commentators indicated that fee
waivers are commonly used by lowincome 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00020

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 feereduced. For example, if only 50 percent
of a benefit request workload is feepaying, 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

PO 00000

Frm 00021

Fmt 4701

Sfmt 4700

46807

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 feepaying 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46808

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

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 noncitizens 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.
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
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00022

Fmt 4701

Sfmt 4700

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).
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,
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.’’
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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 survivorbased 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

PO 00000

Frm 00023

Fmt 4701

Sfmt 4700

46809

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 lowincome 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 survivorrelated 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46810

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 genderbased 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

PO 00000

Frm 00024

Fmt 4701

Sfmt 4700

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’’ bipartisan 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 selfpetitioners, 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
31 See

E:\FR\FM\03AUR2.SGM

INA section 245(l)(7), 8 U.S.C. 1255(l)(7).

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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.
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 genderbased 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00025

Fmt 4701

Sfmt 4700

46811

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.

E:\FR\FM\03AUR2.SGM

03AUR2

46812

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
TABLE 3—CATEGORIES AND FORMS WITHOUT FEES OR ELIGIBLE FOR FEE WAIVERS
Main immigration benefit requests 32

Associated forms

Violence Against Women Act
(VAWA) self-petitioners and
derivatives as defined in INA
section 101(a)(51) or individuals otherwise self-petitioning
for immigrant classification or
seeking adjustment of status
due to abuse by a qualifying
relative 33.

Form I–360, Petition for Amerasian,
Widow(er), or Special Immigrant (no fee for
VAWA-based filings).
Form I–485, Application to Register Permanent Residence or Adjust Status.
Form I–751, Petition to Remove Conditions
on Residence.
Form I–881, Application for Suspension of
Deportation or Special Rule Cancellation of
Removal (Pursuant to Section 203 of Public
Law 105–100 (NACARA)).

Victims of Severe Form of Trafficking (T nonimmigrant) 36.

Form I–914, Application for T Nonimmigrant
Status (no fee).
Form I–914 Supplement A, Application for
Family Member of T–1, Recipient (no fee).
Form I–914, Supplement B, Declaration of
Law Enforcement Officer for Victim of Trafficking in Persons (no fee).
Form I–485, Application to Register Permanent Residence or Adjust Status.

Victims of Criminal Activity (U
nonimmigrant) 37.

Form I–918, Petition for U Nonimmigrant Status (no fee).
Form I–918, Supplement A, Petition for Qualifying Family Member of U–1 Recipient (no
fee).
Form I–918 Supplement B, U Nonimmigrant
Status Certification (no fee).
Form I–929, Petition for Qualifying Family
Member of a U–1 Nonimmigrant.
Form I–485, Application to Register Permanent Residence or Adjust Status.

Employment authorization for
battered spouses of A, G, E–
3, or H nonimmigrants 38.
Battered spouses or children of
a lawful permanent resident or
U.S. citizen and derivatives
under INA section
240A(b)(2) 39.
Temporary Protected Status 40 ...

Form I–765V, Application for Employment Authorization for Abused Nonimmigrant
Spouse (no initial fee).
None with USCIS ............................................

Form I–131, Application for Travel Document.34
Form I–212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
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 (no
initial fee for principals).35
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.
Form I–131, Application for Travel Document.
Form I–192, Application for Advance Permission to Enter as
a Nonimmigrant.
Form I–193, Application for Waiver of Passport and/or Visa.
Form I–290B, Notice of Appeal or Motion.
Form I–539, Application to Extend/Change Nonimmigrant
Status.
Form I–601, Application for Waiver of Grounds of Inadmissibility.
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.
Form I–131, Application for Travel Document.
Form I–192, Application for Advance Permission to Enter as
a Nonimmigrant.
Form I–193, Application for Waiver of Passport and/or Visa.
Form I–290B, Notice of Appeal or Motion.
Form I–539, Application to Extend/Change Nonimmigrant
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.
None.

Category

khammond on DSKJM1Z7X2PROD with RULES2

Special Immigrant Juveniles
(SIJ) 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Form I–821, Application for Temporary Protected Status.
Biometric Services Fee.
Form I–360, Petition for Amerasian,
Widow(er), or Special Immigrant (no fee).
Form I–485, Application to Register Permanent Residence or Adjust Status.

Jkt 250001

PO 00000

Frm 00026

Fmt 4701

Sfmt 4700

Form I–601, 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.
Form I–131, Application for Travel Document.
Form I–601, Application for Waiver of Grounds of Inadmissibility.
Form I–765, Application for Employment Authorization.
Form I–131, Application for Travel Document.41
Form I–212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

46813

TABLE 3—CATEGORIES AND FORMS WITHOUT FEES OR ELIGIBLE FOR FEE WAIVERS—Continued
Main immigration benefit requests 32

Category
Special Immigrant 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.

Form I–360, Petition for Amerasian,
Widow(er), or Special Immigrant (no fee).
Form I–485, Application to Register Permanent Residence or Adjust Status (no fee).

khammond on DSKJM1Z7X2PROD with RULES2

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,
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

Associated forms
Form I–131, Application for Travel Document (no fee).
Form I–290B, Notice of Appeal or Motion (no fee).
Form I–765, Application for Employment Authorization (no
fee).
Form I–212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
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.

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.
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

PO 00000

Frm 00027

Fmt 4701

Sfmt 4700

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 bipartisan 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46814

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 nonfiling, 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

PO 00000

Frm 00028

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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
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.’’).

PO 00000

Frm 00029

Fmt 4701

Sfmt 4700

46815

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46816

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

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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,

PO 00000

Frm 00030

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00031

Fmt 4701

Sfmt 4700

46817

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46818

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 feepaying 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

PO 00000

Frm 00032

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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’’

PO 00000

Frm 00033

Fmt 4701

Sfmt 4700

46819

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

E:\FR\FM\03AUR2.SGM

03AUR2

46820

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00034

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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 means50 The approved package is available at https://
www.reginfo.gov/public/do/PRAViewICR?ref_
nbr=201910-1615-006# (last visited Feb. 17, 2020).

PO 00000

Frm 00035

Fmt 4701

Sfmt 4700

46821

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.

E:\FR\FM\03AUR2.SGM

03AUR2

46822

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

khammond on DSKJM1Z7X2PROD with RULES2

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.
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
51 See

Wolf v. Cook County, 140 S.Ct. 681 (2020).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 lowand 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

PO 00000

Frm 00036

Fmt 4701

Sfmt 4700

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
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.).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
support requirements to allow this
population to request fee waivers.56
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,
56 See Div. C, Title V of Public Law 104–208, 110
Stat. 3009, 3009–670 (September 30, 1996).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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).
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.
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).
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).

PO 00000

Frm 00037

Fmt 4701

Sfmt 4700

46823

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).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46824

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

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.
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
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00038

Fmt 4701

Sfmt 4700

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 nonfiling, 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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
62 See Tables 10–11. Distribution of Total
Approved Applicants per Fee Waiver Request
(Form I–912) in the RIA.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

increase in burden that this change may
add for a small percentage of fee waiver
requests.
Comment: A commenter
recommended that USCIS continue to
allow use of applicant generated, nonform 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 beneficiarypays 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 beneficiarypay 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

PO 00000

Frm 00039

Fmt 4701

Sfmt 4700

46825

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.
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, reinterviewing 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
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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46826

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

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 feerelated 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.
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:
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

• ‘‘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,

PO 00000

Frm 00040

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

without any adjustments.65 This
clarification has been added to Form I–
912 instructions.
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,
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).

PO 00000

Frm 00041

Fmt 4701

Sfmt 4700

46827

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 lowand 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

E:\FR\FM\03AUR2.SGM

03AUR2

46828

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

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

TABLE 4—FILING FEE EXEMPTIONS 67
Form 68

Eligibility category

Reason for filing
(if applicable)

Final rule
regulation section

I–90, Application to Replace Permanent Resident Card.
I–102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.

Applicant who has reached his or her 14th birthday
and the existing card expires after his or her 16th
birthday.
For nonimmigrant member of the U.S. Armed
Forces.
For a nonimmigrant member of the North Atlantic
Treaty Organization (NATO) armed forces or civil
component.
For nonimmigrant member of the Partnership for
Peace military program under the Status of
Forces Agreement.
For filing Form I–129CWR, Semiannual Report for
CW–1 Employers.

N/A ...................................

8 CFR 106.2(a)(1) ...........

8 CFR 264.5(a).

Initial Filing ......................

8 CFR 106.2(a)(2)(i) ........

Initial Filing.

8 CFR 106.2(a)(ii).

8 CFR 106.3(e)(5)—Agreement between U.S. government and other nations.
8 CFR 106.3(e)(5)—Agreement between U.S. government and other nations.

Initial Filing ......................

8 CFR 106.2(a)(ii) ...........

8 CFR 106.3(e)(5)—Agreement between U.S. government and other nations.

N/A ...................................

8 CFR 106.2(a)(4)(B)(iii)

8 CFR 106.3(e)(5)—Agreement between U.S. government and other nations.

N/A ...................................

8 CFR 106.2(a)(5)(ii) .......

Previous regulations at 8 CFR 103.7(b)(1)(i)(K).

Any application ................

8 CFR 106.2(a)(7)(iv) ......

Required by regulations in effect at the time the request was filed.

Any application ................

8 CFR 106.2(a)(7)(iv) ......

National Defense Authorization Act for Fiscal Year
2008, Public Law 110–181 (Jan 28, 2008) and
Omnibus Appropriations Act, 2009 Public Law
111–8 (Mar. 11, 2009).

Any application ................

8 CFR 106.2(a)(16) .........

Policy based on INA section 245(l)(7).

Any application ................

8 CFR 106.2(a)(17)(iii) ....

National Defense Authorization Act for Fiscal Year
2008, Public Law 110–181 (Jan 28, 2008) and
Omnibus Appropriations Act, 2009 Public Law
111–8 (Mar. 11, 2009).

Any application ................

..........................................

Previous 8 CFR 103.7(b)(1)(i)(U)(3).

I–129CW, Petition for a
CNMI-Only Nonimmigrant Transitional
Worker.
I–129F, Petition for Alien
Fiance´(e).

I–131, Application for Travel Document.

I–360 Petition for
Amerasian, Widow(er),
or Special Immigrant.

khammond on DSKJM1Z7X2PROD with RULES2

Form I–485, Application to
Register Permanent Residence or Adjust Status.

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.
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.
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’’).
• A petition seeking 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’’).
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’’).
Applicants filing as refugees under INA section
209(a).

66 75

FR 58973.
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
67 In

VerDate Sep<11>2014

23:42 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00042

Fmt 4701

Sfmt 4700

Statutory or regulatory authority if applicable

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

46829

TABLE 4—FILING FEE EXEMPTIONS 67—Continued
Form 68

Eligibility category

Reason for filing
(if applicable)

Final rule
regulation section

I–485 Supplement A, Adjustment of Status under
Section 245(i).

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.
For an appeal or motion for denial of a petition for a
special immigrant visa from an individual for a
special immigrant status as an Afghan or Iraqi Interpreter, or Iraqi or Afghan National employed by
the U.S. Government or the International Security
Assistance Forces (‘‘ISAF’’).
Nonimmigrant A, G, and NATO ................................

N/A ...................................

8 CFR 106.2(a)(17)(iv) ....

INA section 245(i).

Any application ................

8 CFR 106.2(a)(14)(ii) .....

National Defense Authorization Act for Fiscal Year
2008, Public Law 110–181 (Jan 28, 2008) and
Omnibus Appropriations Act, 2009 Public Law
111–8 (Mar. 11, 2009).

..........................................

8 CFR 106.2(a)(19) .........

8 CFR 106.3(e)(5)—Agreement between the U.S.
government and other nations.

Applications filed by unaccompanied alien children
who are in removal proceedings.

..........................................

8 CFR 106.2(a)(20) .........

Public Law 110–457, 122 Stat. 5044 (2008).

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.
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.
Refugee .....................................................................
Paroled as refugee ....................................................
Asylee ........................................................................
N–8 or N–9 nonimmigrant .........................................

..........................................

8 CFR 106.2(a)(21)(i) ......

Previous 8 CFR 103.7(b)(1)(i)(Y), (Z).

..........................................

8 CFR 106.2(a)(23)(i)(A)

Previous 8 CFR 103.7(b)(1)(i)(Y), (Z).

Initial
Initial
Initial
Initial

8
8
8
8

I–290B, Notice of Appeal
or Motion.

I–539, Application to Extend/Change Nonimmigrant Status.
I–589, Application for Asylum and for Withholding
of Removal.
I–600, Petition to Classify
Orphan as an Immediate
Relative 69.

I–600A/I–600 Supplement
3, Request for Action on
Approved Form I–600A/
I–600.
I–765, Application for Employment Authorization.

khammond on DSKJM1Z7X2PROD with RULES2

Victim of severe form of trafficking (T–1 nonimmigrant).
Victim of qualifying criminal activity (U–1 nonimmigrant).
Dependent of certain government and international
organizations, or NATO personnel.

I–765V, Application for Employment Authorization
for Abused Nonimmigrant Spouse.
I–800, Petition to Classify
Convention Adoptee as
an Immediate Relative 70.

Form I–800A Supplement
3, Request for Action on
Approved Form I–800A.

VerDate Sep<11>2014

Taiwanese dependent of Taipei Economic and Cultural Representative Office TECRO E–1 employees.
VAWA Self-Petitioners as defined in section
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 as defined in section
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 as defined in section
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 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 (‘‘ISAF’’).
An applicant who filed USCIS Form I–485 on or
after July 30, 2007 and before [INSERT EFFECTIVE DATE OF 2018/2019 FEE RULE] and paid
the Form I–485 filing fee.
Principal VAWA Self-Petitioners who have approved
petitions pursuant to section 204(a) of the Act.
Any current Adjustment of Status or Registry applicant filed for 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 Employment Authorization
Document based on USCIS error.
Any applicant .............................................................

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.
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.

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00043

EAD
EAD
EAD
EAD

Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(D)

Policy.
Policy.
Policy.
8 CFR 106.3(e)(5)—Agreement between the U.S.
government and another nation or nations.
Policy based on INA section 245(l)(7).

Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(E)

Policy based on INA section 245(l)(7).

Initial EAD ........................
Renewal EAD, Replacement EAD.
Initial EAD, Renewal
EAD, Replacement
EAD.
Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(F)
8 CFR 106.2(a)(32)(iv)(C)

Based on 106.3(e)(5)—An agreement between the
U.S. government and another nation or nations.

N/A ...................................

8 CFR 106.3(e)(5)—An agreement between the
U.S. government and another nation or nations.

8 CFR 106.2(a)(32)(ii)(I) ..

Policy based on INA section 245(l)(7).

Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(I) ..

Policy based on through INA 245(l)(7).

Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(I) ..

Policy based on INA section 245(l)(7).

Initial EAD, Renewal
EAD, Replacement
EAD.

8 CFR 106.2(a)(32)(ii)(J)

Public Law 110–181 (Jan 28, 2008) and Public Law
111–8 (Mar. 11, 2009).

Initial EAD, Renewal
EAD, Replacement
EAD.

8 CFR 106.2(a)(32)(ii)(A)

Required by regulations in effect when form was
filed.

Initial EAD ........................

8 CFR 106.2(a)(32)(ii)(H)

Policy based on INA section 245(l)(7).

Initial EAD, Renewal
EAD, Replacement
EAD.

8 CFR 106.2(a)(32)(iv)(A)

Required by regulations in effect when form was
filed.

Replacement EAD ...........

8 CFR 106.2(a)(32)(iii) ....

8 CFR 106.3(e)(6).

N/A ...................................

8 CFR 106.2(a)(32)(v) .....

Policy based on INA section 245(l)(7).

Initial Filing ......................

8 CFR 106.2(a)(33)(i) ......

8 CFR 103.7(b)(1)(i)(JJ), (LL).

N/A ...................................

8 CFR 106.2(a)(35)(i)(A)

8 CFR 103.7(b)(1)(i)(JJ)(1).

Fmt 4701

........................
........................
........................
........................

Sfmt 4700

CFR
CFR
CFR
CFR

106.2(a)(32)(ii)(B)
106.2(a)(32)(ii)(B)
106.2(a)(32)(ii)(C)
106.2(a)(32)(ii)(G)

Statutory or regulatory authority if applicable

E:\FR\FM\03AUR2.SGM

03AUR2

46830

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
TABLE 4—FILING FEE EXEMPTIONS 67—Continued

Form 68

Eligibility category

Reason for filing
(if applicable)

Final rule
regulation section

I–821, Application for Temporary Protected Status 71.
I–821D, Consideration of
Deferred Action for
Childhood Arrivals.
I–914, Application for T
Nonimmigrant Status.
I–918, Petition for U Nonimmigrant Status.
N–336, Request for a
Hearing on a Decision in
Naturalization Proceedings (Under Section
336 of the INA).
N–400, Application for Naturalization.

Any applicant .............................................................

Re-registration .................

8 CFR 106.2(a) ...............

INA section 245(l)(7).

Any requestor ............................................................

..........................................

8 CFR 106.2(a)(38) .........

Any applicant .............................................................

N/A ...................................

8 CFR 106.2(a)(45) .........

Policy decision based on DHS et al. v. Regents of
the Univ. of Cal. et al., No. 18–587 (S.Ct. June
18, 2010).
Policy but based on INA section 245(l)(7).

khammond on DSKJM1Z7X2PROD with RULES2

N–565, Application for Replacement Naturalization/
Citizenship Document.
Form N–600, Application
for Certificate of Citizenship.
Other—Claimant under
section 289 of the Act.

Any applicant .............................................................

N/A ...................................

8 CFR 106.2(a)(46) .........

Policy but based on INA section 245(l)(7).

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.

N/A ...................................

8 CFR 106.2(b)(2) ...........

See INA secs. 328(b)(4), 329(b)(4).

An applicant who meets the requirements of sections 328 or 329 of the Act with respect to military
service.
Application is submitted under 8 CFR 338.5(a) or
343a.1 to request correction of a certificate that
contains an error.
Member or veteran of any branch of the U.S.
Armed Forces.

N/A ...................................

8 CFR 106.2(b)(3) ...........

See INA secs. 328(b)(4), 329(b)(4).

N/A ...................................

8 CFR 106.2(b)(5)(ii) .......

Policy based on 8 CFR 106.3(e)(6).

N/A ...................................

8 CFR 106.2(b)(6) ...........

Based on National Defense Authorization provisions.

Claimant ....................................................................

N/A ...................................

8 CFR 106.2(c)(9) ...........

INA 289.

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

VerDate Sep<11>2014

Statutory or regulatory authority if applicable

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00044

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
replacement EAD are eligible for fee
exemptions. See new 106.2(a)(32).

khammond on DSKJM1Z7X2PROD with RULES2

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 reregistering for TPS and requesting
employment authorization will increase
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

from $495 74 to $580.75 DHS notes that
TPS applicants and re-registrants may
request fee waivers. See 8 CFR 106.3.
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.’’
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.

PO 00000

Frm 00045

Fmt 4701

Sfmt 4700

46831

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
76 E.O.

13781, 82 FR 13959 (Mar 16, 2017).
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.
77 OMB,

E:\FR\FM\03AUR2.SGM

03AUR2

46832

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

Even more significantly, it cites USCIS’
electronic processing efforts as an
example of an agency initiative that
aligns with the prioritized reforms.79
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 paperbased forms and interactions may feel
there is no reason to change a method
that has worked for them.
DHS agrees that transitioning to eprocessing 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.

TABLE 5—FEES FOR ONLINE FILING
Online
filing fee

Immigration benefit request

khammond on DSKJM1Z7X2PROD with RULES2

I–90 Application to Replace Permanent Resident Card .............................................................
I–130 Petition for Alien Relative ..................................................................................................
I–539 Application to Extend/Change Nonimmigrant Status ........................................................
N–336 Request for Hearing on a Decision in Naturalization Proceedings .................................
N–400 Application for Naturalization ...........................................................................................
N–565 Application for Replacement Naturalization/Citizenship Document ................................
N–600 Application for Certificate of Citizenship ..........................................................................
N–600K Application for Citizenship and Issuance of Certificate .................................................
G–1041 Genealogy Index Search Request ................................................................................
G–1041A Genealogy Records Request ......................................................................................

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.
79 Id.

at 101–02.
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-oftechnology/; Charlie Wells, The Wall Street Journal,
Forget Early Adopters: These People are Happy to
80 Brian

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

$405
550
390
1,725
1,160
535
990
935
160
255

Paper
filing fee
$415
560
400
1,735
1,170
545
1,000
945
170
265

Difference
$10
10
10
10
10
10
10
10
10
10

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

Be Late (Jan. 26, 2016), available at https://
www.wsj.com/articles/forget-early-adopters-thesepeople-are-happy-to-be-late-1453827437.
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/esafe (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.

PO 00000

Frm 00046

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00047

Fmt 4701

Sfmt 4700

46833

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).
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 reregistrants. 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 reregistrants. 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46834

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

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 reregistrants 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00048

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00049

Fmt 4701

Sfmt 4700

46835

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46836

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00050

Fmt 4701

Sfmt 4700

Genealogy Program and instead would
likely be the demise of the program.
Some commenters wrote that the
proposed increase in fees would priceout 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 nonhistorical 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

PO 00000

Frm 00051

Fmt 4701

Sfmt 4700

46837

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,

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46838

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00052

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00053

Fmt 4701

Sfmt 4700

46839

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

E:\FR\FM\03AUR2.SGM

03AUR2

46840

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

khammond on DSKJM1Z7X2PROD with RULES2

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.
DHS recognizes the commenters’
concerns regarding vulnerable
populations, particularly applicants for
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00054

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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 dualintent 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,

PO 00000

Frm 00055

Fmt 4701

Sfmt 4700

46841

‘‘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 workingclass 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

E:\FR\FM\03AUR2.SGM

03AUR2

46842

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00056

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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 EmploymentBased Third Preference Unskilled
Workers (Other Work) category, such as
meat/poultry processers, home
healthcare providers, hospitality/
lodging employees.87 The commenter
87 See USCIS, Employment-Based Immigration:
Third Preference EB–3, available at https://
www.uscis.gov/working-united-states/permanentworkers/employment-based-immigration-third-

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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 familybased 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
preference-eb-3 (last reviewed/updated March 27,
2020).

PO 00000

Frm 00057

Fmt 4701

Sfmt 4700

46843

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 3–4year 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

E:\FR\FM\03AUR2.SGM

03AUR2

46844

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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:

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

• 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 beneficiarypays 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.

PO 00000

Frm 00058

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00059

Fmt 4701

Sfmt 4700

46845

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46846

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

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,

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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,

PO 00000

Frm 00060

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

of national origin, race, age, gender, or
financial status. A commenter said
requiring asylum applicants to pay a fee
violates the principle of nonrefoulement 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

PO 00000

Frm 00061

Fmt 4701

Sfmt 4700

46847

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46848

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 costprohibitive 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

PO 00000

Frm 00062

Fmt 4701

Sfmt 4700

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 nonrefoulement 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,

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00063

Fmt 4701

Sfmt 4700

46849

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 ‘‘nonqualified’’ 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46850

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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/newsreleases/uscis-take-action-addressasylum-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

PO 00000

Frm 00064

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00065

Fmt 4701

Sfmt 4700

46851

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46852

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

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–

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00066

Fmt 4701

Sfmt 4700

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 beneficiarypays principle, DHS declines to require
other fee-paying applicants to subsidize

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00067

Fmt 4701

Sfmt 4700

46853

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.
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
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.

E:\FR\FM\03AUR2.SGM

03AUR2

46854

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00068

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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 feewaived forms.
DHS declines to make changes in this
final rule in response to these
comments.
24. Form N–400, Application for
Naturalization

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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
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).

PO 00000

Frm 00069

Fmt 4701

Sfmt 4700

46855

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-

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46856

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

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.
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,
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).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 beneficiarypays 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 volumeweighted 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

PO 00000

Frm 00070

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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
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
94 See,

e.g., 75 FR 33461; 81 FR 26916.
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.
95 Based

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00071

Fmt 4701

Sfmt 4700

46857

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
Comment: A commenter faulted
USCIS’ economic model for the Form
N–400 fee increases. The commenter
wrote that USCIS increased the activitybased 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 ‘‘beneficiarypays’’ 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.
97 See,

e.g., 75 FR 33461; 81 FR 26916.
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.
98 Based

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46858

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

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 feepaying unit cost for a given form.
Meaning, the model output would
recover the full cost of adjudicating that
form type, given the anticipated feepaying 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 selfsufficiency principles as established by
Congress along with other provision of
the law and the added cost to other feepaying applicants and petitioners. DHS
believes that it is neither equitable nor
in accordance with the principle of selfsufficiency 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

PO 00000

Frm 00072

Fmt 4701

Sfmt 4700

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.
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
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-naturalizationceremony (last visited March 9, 2020).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00073

Fmt 4701

Sfmt 4700

46859

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46860

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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 beneficiarypays 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.

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-FY14Update.pdf.

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-FY14Update.pdf.

PO 00000

Frm 00074

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 feepaying 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.

PO 00000

Frm 00075

Fmt 4701

Sfmt 4700

46861

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46862

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

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 Pvisa 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00076

Fmt 4701

Sfmt 4700

‘‘arbitrary.’’ A few commenters stated
that USCIS fails to provide any
information or data supporting the 25person 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 25beneficiary 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 Pnonimmigrant 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.
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,
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).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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 crosssubsidization 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 crosssubsidization between petitions with
few named workers and many named
workers. Previously a single petition
might contain a single named worker or

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 crosssubsidization 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.

PO 00000

Frm 00077

Fmt 4701

Sfmt 4700

46863

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 landbased 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46864

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00078

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00079

Fmt 4701

Sfmt 4700

46865

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46866

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

the record when eligibility has not been
established. USCIS officers do not send
RFEs just because they are near the 15day 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 premiumprocessing 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
J. 9–11 Response and Biometric Entrydefinition of combined.
Exit Fee for H–1B and L–1
• This interpretation is not only
Nonimmigrant Workers (Pub. L. 114–113 correct, it is mandated by the statutory
Fees)
language.
• Congress limited the circumstances
Comment: DHS received many
requiring the 9–11 Response fee to only
comments on the change in how DHS
those for an application for admission
interprets the statutory language in
and this language does not naturally
Public Law 114–113 to change the
apply to applicants for extension of
benefit requests to which the fee would
time, for an amendment to terms, or for
apply. The comments are summarized
a change in status.
as follows:
• The fees would negatively affect
• USCIS lacks the authority to create
employers because it would require
such a fee increase and that only
them to pay the fee multiple times for
Congress has this authority.
• USCIS lacks the authority to
the same employee because the duration
reinterpret language from Public Laws
of an approval may be less than one
111–230 (2010) and 114–113 (2015) and year.
• Companies that hire from countries
that the proposal invents ambiguity that
like India, where beneficiaries may wait
does not exist with respect to the
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’ nonstatutory, non-premium processing fees
that DHS has the authority to adjust for
full cost recovery via public notice and
comment rulemaking.

PO 00000

Frm 00080

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00081

Fmt 4701

Sfmt 4700

46867

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46868

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00082

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 feepaying 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 feepaying 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

PO 00000

Frm 00083

Fmt 4701

Sfmt 4700

46869

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.
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
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.

E:\FR\FM\03AUR2.SGM

03AUR2

46870

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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 feepaying 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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’ feepaying 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 ‘‘feepaying percentage.’’ See 84 FR 62290.
DHS used this data to calculate feepaying 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

PO 00000

Frm 00084

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
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.

PO 00000

Frm 00085

Fmt 4701

Sfmt 4700

46871

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.
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.

E:\FR\FM\03AUR2.SGM

03AUR2

46872

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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 ...............................................................................................................................
Plus: Net Spending Adjustments .........................................................................................................................................................

$3,585.6
217.2

Total Adjusted FY 2018 IEFA Non-Premium Budget ..................................................................................................................
Plus: Transfer to ICE ...........................................................................................................................................................................
Plus: Pay Inflation and Promotions/Within Grade Increases ..............................................................................................................
Plus: Net Additional Costs ...................................................................................................................................................................

3,802.8
........................
280.2
249.0

Total Adjusted FY 2019 IEFA Non-Premium Budget ..................................................................................................................
Plus: Pay Inflation and Promotions/Within Grade Increases ..............................................................................................................
Plus: Net Additional Costs ...................................................................................................................................................................

4,332.0
218.6
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 feepaying 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 feepaying applicants to assign a total cost
estimate of $100.00 to, then the
proposed fee would be $1.00. However,

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00086

Fmt 4701

Sfmt 4700

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
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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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.
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
accounting systems need not be established solely
for this purpose.’’

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00087

Fmt 4701

Sfmt 4700

46873

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46874

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00088

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 nonpremium 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).

PO 00000

Frm 00089

Fmt 4701

Sfmt 4700

46875

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46876

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

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 inperson 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,

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 inperson 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

PO 00000

Frm 00090

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00091

Fmt 4701

Sfmt 4700

46877

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

E:\FR\FM\03AUR2.SGM

03AUR2

46878

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00092

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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.
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
114 Paperwork Reduction Act of 1995, Public Law
104–13, §451(b), 110 Stat. 163 (1995) (codified at
44 U.S.C. 3501 et seq.)].

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 sixmonth grace period. The commenter
wrote that USCIS should consider highvolume 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 EVerify is not mandated for participation
in nonimmigrant program (sic), as it
could be used inappropriately to target

PO 00000

Frm 00093

Fmt 4701

Sfmt 4700

46879

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-Verifyrelated 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 EVerify, 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46880

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00094

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 noneconomic 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
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

PO 00000

116 See

RIA, Section M: Fee Waivers.

Frm 00095

Fmt 4701

Sfmt 4700

46881

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46882

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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
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

PO 00000

117 See

RIA, Section M: Fee Waivers

Frm 00096

Fmt 4701

Sfmt 4700

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.
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
118 Available at: https://www.whitehouse.gov/
sites/whitehouse.gov/files/omb/circulars/A4/a4.pdf. (Sept. 17, 2003) (last viewed April 2, 2020).

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00097

Fmt 4701

Sfmt 4700

46883

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.
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
119 Congress provides USCIS with appropriations
for the E-Verify program.

E:\FR\FM\03AUR2.SGM

03AUR2

46884

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

khammond on DSKJM1Z7X2PROD with RULES2

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 lowincome 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 lowincome 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 socioeconomic 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

PO 00000

Frm 00098

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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 genderbased 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 hardworking, 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

PO 00000

Frm 00099

Fmt 4701

Sfmt 4700

46885

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 marketoriented 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.

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46886

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

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-

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00100

Fmt 4701

Sfmt 4700

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.
Comment: Some commenters wrote
that survivors of violence may pursue
immigration benefits through nonhumanitarian 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 genderbased 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
120 See

RIA, Section M: Fee Waivers.
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.
121 National

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
acquiring food and shelter for their
families.
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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 nonfiling, 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 welldocumented 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

PO 00000

Frm 00101

Fmt 4701

Sfmt 4700

46887

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 beneficiarypays 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

E:\FR\FM\03AUR2.SGM

03AUR2

46888

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 selfsufficient. 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.

PO 00000

Frm 00102

Fmt 4701

Sfmt 4700

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 addon 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 lowwage 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
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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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.
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
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-17-42Mar17.pdf.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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)
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 feepaying 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 feepaying receipts, excluding biometric
services. This represents a 44 percent
increase to workload and a 43 percent
increase to fee-paying receipt
assumptions.124
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
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.

PO 00000

Frm 00103

Fmt 4701

Sfmt 4700

46889

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
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
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).

E:\FR\FM\03AUR2.SGM

03AUR2

46890

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

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.
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 3and 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.

khammond on DSKJM1Z7X2PROD with RULES2

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE SUMMARY
Provision

Purpose of provision

Estimated costs or transfers of provision

Estimated benefits of provision

(a) Reduced Fees for Filing Online.
• Form I–90, Application to Replace Permanent Resident Card
• Form N–336, Request for a Hearing on a
Decision in Naturalization Proceedings
(Under Section 336 of the INA)
• Form N–400, Application for Naturalization
• Form N–565, Application for Replacement
Naturalization/Citizenship Document
• Form I–130/130A, Petition for Alien Relative
• Form N–600, Application for Certificate of
Citizenship
• Form N–600K, Application for Citizenship
and Issuance of Certificate Under Section
322
• Form I–539/539A, Application To Extend/
Change Nonimmigrant Status
• Form G–1041, Genealogy Index Search Request
• Form G–1041A, Genealogy Records Request

USCIS does not require that immigration benefit requests be filed online. Voluntarily, filing on paper remains a valid option. However, for forms currently eligible for online
filing, the fee will be $10 more if filed on
paper.

Quantitative:
Applicants—
• A transfer of $6.1 million annually from applicants/petitioners who will pay $10 more
for those same filings on paper to fee-paying applicants/petitioners filing eligible forms
online for a particular immigration benefit or
request as a result of the final applicable
USCIS filing fees.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• Facilitates electronic processing and adjudications which helps streamline USCIS
processes. This could reduce costs and
could speed adjudication of cases.
• Results in more accurately prepared and
supported requests accompanied by necessary evidence and documentation. Reduces the need for USCIS to request additional data, clarifying information, or documents.
• Reduce the collection of unnecessary or duplicative information as the system guides
requestors to provide responses that comply with requirements and instructions that
are pertinent to their benefit 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—benefits 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.

130 Government Accountability Office (GAO),
Federal User Fees: A Design Guide (May 29, 2008),

VerDate Sep<11>2014

23:42 Jul 31, 2020

Jkt 250001

available at https://www.gao.gov/products/GAO-08386SP. (last accessed Feb. 24, 2020).

PO 00000

Frm 00104

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

03AUR2

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

46891

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE
SUMMARY—Continued

khammond on DSKJM1Z7X2PROD with RULES2

Provision

Purpose of provision

Estimated costs or transfers of provision

(b) Secure Mail Initiative.

USCIS will use the Signature Confirmation
Restricted Delivery as a method of delivery
of secure documents for USCIS.

Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• DHS will experience a cost of $34.5 million
from the United States Postal Service
(USPS) for total mail cost, which includes
Signature Confirmation Restricted Delivery
confirmation to re -send secure documents
to the proper recipient. When they fail to
make it to their proper recipient.

(c) Clarify Dishonored Check Re-presentment
Requirement and Fee Payment Method, and
Non-refundability.

DHS is changing its provision in this rule that
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 remitter institution returns the instrument
used to pay a fee as unpayable a second
time, USCIS will reject the filing. USCIS will
not re-deposit financial instruments returned
as unpayable for a reason other than insufficient funds.
In addition, DHS may reject a request that is
accompanied by a check that is dated more
than 365 days before the receipt date.
DHS is also clarifying that fees are non-refundable regardless of the result of the immigration benefit request or how much time
the request requires to be adjudicated.

Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

(d) Eliminate $30 Returned Check Fee.

DHS is removing the $30 charge for dishonored payments.

Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• There may be an increase in insufficient
payments by applicants because the $30
fee may serve as a deterrent for submitting
a deficient payment.

(e) Removal of Fee waivers.

DHS is limiting fee waivers to statutorily mandated fee waivers and two other humanitarian programs and to those applicants
who have an annual household income of
less than 125% of the Federal Poverty
Guidelines (FPG). Additionally, fee waiver
applicants cannot have been admitted into
the United States subject to an affidavit of
support under INA section 213A, 8 U.S.C
1183a or be subject to the public charge inadmissibility ground under INA section
212(a)(4), 8 U.S.C. 1182
(a)(4).

Quantitative:
Applicants—
• A transfer of $368.3 million annually to
those applicants who previously received a
fee waiver from different groups of fee-paying applicants. These transfers derive from
applicable USCIS filing fees.
DHS/USCIS—
• None.
Qualitative:
Applicants—
• Limiting fee waivers may adversely affect
some applicants’ ability to apply for immigration benefits.
DHS/USCIS—
• None.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00105

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

Estimated benefits of provision
Quantitative:
Applicants—
• Applicants with unstable addresses or who
move often will be more certain to receive
their documents.
Qualitative:
Applicants—
• USCIS and applicants can track their document using the USPS website up to when
the document is delivered.
• 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.
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.
Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• By clarifying the dishonored fee check representment processes, USCIS will reduce
administrative burdens and processing errors associated with fee payments.
• In the event that the bank that issues the
credit card rescinds the payment of a fee to
USCIS, USCIS will be able to invoice the
responsible party (applicant, petitioner, or
requestor) and pursue collection of the unpaid fee in accordance with 31 CFR 900—
904 (Federal Claims Collection Standards).
Clarifying that fees are due regardless of
the result or how long the decision takes,
and there are no refunds, is expected to result in USCIS losing fewer credit card disputes.
Quantitative:
Applicants—
• $0.17 million annual savings.
Qualitative:
Applicants—
• 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.
• 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.
Quantitative:
Applicants—
• Current fee-paying applicants are no longer
burdened with covering the costs for those
applicants who currently receive fee waivers.
DHS/USCIS—
• None.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• This provision 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.

03AUR2

46892

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

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE
SUMMARY—Continued
Provision
(f) Fee Exemptions.

Purpose of provision

Estimated costs or transfers of provision

DHS is removing the fee exemptions for an
initial request for an employment authorization document (EAD) for the following classifications:

Quantitative:
Applicants—
• A transfer of $3.9 million annually in filing
fees to the categories listed in the provision
that are no longer exempted from different
groups of fee-paying applicants of Form I–
765.
Qualitative:
Applicants—
• This could result in lost wages for the workers who may not be able to afford the costs
of filing Form I–765 and lost productivity for
the employers that hire these workers. The
lost wages and productivity can be considered as costs of the forgone benefits.
DHS/USCIS—
• None.

• Citizen of Micronesia, Marshall Islands, or
Palau;
• Granted Withholding of Deportation;
• Temporary Protected Status (TPS) if filing
an initial TPS application for individuals
under 14 years of age or over 65 years of
age.
• Applicant for Asylum and Withholding of Deportation or Removal.

(g) Changes to Biometric Services Fee.

(h) Discontinue bundling of interim benefits
when Forms I–765 and I–131 are filed concurrently with pending Form I–485 or when
a Form I–485 is pending.

khammond on DSKJM1Z7X2PROD with RULES2

(i) Form I–485 Fee for Children Under 14, Filing with Parent.

(j) Allow Individuals with Advance Parole to
use Form I–131A, Application for Travel
Document (Carrier Documentation)

VerDate Sep<11>2014

20:56 Jul 31, 2020

DHS is incorporating the biometric services
cost into the underlying immigration benefit
request fee instead of charging a flat $85
biometric services fee.

Quantitative:
Applicants—
• $12.4 million costs for asylum applicants
paying the biometrics service fee and for
those completing and submitting new Form
I–600A/600 Supplement 3.

DHS will require a $30 biometric services fee
for an applicant for asylum or an alien approved for parole who applies for employment authorization (c)(8)’s, TPS initial applications and re-registrations, EOIR applicants, and term CNMI resident program applicants.

Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

DHS is requiring separate fees for Forms I–
765 and/or I–131 when filed concurrently
with Form I–485 or when a Form I–485 is
pending.

Quantitative:
Applicants—
• A transfer of $597.3 million from those applicants who file for Forms I–765 and/or I–
131 concurrently filed with Form I–485 or
while it is pending to different groups of feepaying applicants.
Qualitative:
Applicants—
• None.

DHS is requiring payment of the full $1,130
fee for a child under the age of 14 years
when concurrently filing Form I–485 with a
parent.

DHS is expanding the population eligible to
use Form I–131A to include individuals with
advance parole documents.

Jkt 250001

PO 00000

Frm 00106

Fmt 4701

Quantitative:
Applicants—
A transfer of $11.4 million from applicants who
concurrently file a Form I–485 with a child
under the age of 14 to different groups of
fee-paying applicants.
Qualitative:
Applicants—
DHS/USCIS—
• None.

Quantitative:
Applicants—
A transfer of $10.1 annually to applicants who
file Form I–131A from different groups of
applicants.

Sfmt 4700

E:\FR\FM\03AUR2.SGM

Estimated benefits of provision
Quantitative:
Applicants—
• None.

Qualitative:
Applicants—
• The removal of fee exemptions for these
populations may reduce further increases of
other fees to the fee-paying population.
DHS/USCIS—
• Continuing to provide these fee exemptions
would result in the costs of those services
being transferred to the fees for other
forms.
• 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.
Quantitative:
Applicants—
• $15.0 million in transfers from the government to fee paying applicants/petitioners for,
EOIR, TPS, and term CNMI resident applicants resulting from a $55 reduction in biometrics service fees per applicant.
Qualitative:
Applicants—
• Simplifies the process to submit payments.
• May result in fewer incorrect payments and
therefore, fewer rejected applications.
• Biometric costs incorporated into the fee 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.
Quantitative:
Applicants—
• Not estimated.

Qualitative:
Applicants—
• 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.
Quantitative:
Applicants—
• Not estimated.

Qualitative:
Applicants—
• 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.
Quantitative:
Applicants—
• None.

03AUR2

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

46893

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE
SUMMARY—Continued
Provision

Purpose of provision

(k) Separating Form I–129, Petition for a Nonimmigrant Worker, into Different Forms, and
Limit Petitions Where Multiple Beneficiaries
are Permitted to 25 Named Beneficiaries per
Petition.

Estimated costs or transfers of provision

DHS is separating the Petition for a Nonimmigrant Worker, Form I–129, into several
forms with different corresponding fees.
DHS also is imposing a limit of 25 named
beneficiaries per petition where multiple
beneficiaries are permitted.

Qualitative:
Applicants—
• In addition to the filing fee, DHS estimated
a qualitative per unit cost per applicant for
the opportunity cost of time for completing
Form I–131A and submitting one passportsized photo of $32.66 per unit application
cost.
DHS/USCIS—
• None.
Quantitative:
Applicants—
• A transfer of $75.1 million in filing fees of
visa category specific petitions from petitioners using the specific new Form I–129
classification forms to different groups of
fee-paying petitioners.
DHS/USCIS—
• Not estimated.

khammond on DSKJM1Z7X2PROD with RULES2

Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

(l) Extend premium processing timeframe from
15 calendar days to 15 business days.

DHS is changing the premium processing
timeframe from 15 calendar days to 15
business days.

Quantitative:
Applicants—
• Not estimated.
Qualitative:
Petitioners—
• An employer may lose some productivity
but USCIS has no way to estimate what
that loss may be.
• Applicants and employers may have to wait
4 days or longer for decisions on their
cases
DHS/USCIS—
• None.

(m) Creation of Form I–600A/600 Supplement
3, Request for Action on Approved For I–
600A/I–600 and new fee.

DHS is creating a new form, Form I–600 Supplement 3, Request for Action on an Approved Form I–600A/I–600 and new fee to
clarify the regulations and formalize current
practice for requests for action on approved
Forms I–600A/I–600.
DHS is altering the validity period for a Form
I–600A approval in an orphan case from 18
to 15 months to remove inconsistencies between Form I–600A approval periods and
validity of the Federal Bureau of Investigation (FBI) background check.

Quantitative:
Applicants—
• $0.14 million costs for completing and submitting new Form I–600A/600 Supplement
3.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00107

Fmt 4701

Qualitative:
Applicants—
• None.
DHS/USCIS—
• $0.13 million in costs for processing and reviewing the new Form I–600A/600 Supplement 3.

Sfmt 4700

E:\FR\FM\03AUR2.SGM

Estimated benefits of provision
Qualitative:
Applicants—
• Individuals who lose their advance parole
cards while abroad now have a defined
process to receive carrier documentation to
return to the U.S.
DHS/USCIS—
• None.

Quantitative:
Applicants—
• $5.9 million if HR specialist file, $12.8 million if in-house lawyers file, or $22.3 million
if outsourced lawyers file in annual savings
to the petitioners filing Form I–129 new visa
category specific petitions. The annual savings will be in the Form I–129 opportunity
costs of time to complete the different form
classifications.
DHS/USCIS—
• None.
Qualitative:
Applicants—
• Separating 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.
Quantitative:
Applicants—
• Not estimated.
Qualitative:
Petitioners—
• Removes petitioner expectation of 15 calendar day processing to allow for better
business planning. Premium processing is
for quick adjudication and certainty, but they
lose no productivity from the additional 4
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.
Quantitative:
Applicants—
• None.

Qualitative:
Applicants—
• Improve and align the adjudication and approval processes for adoptions from countries that are party to the Hague Adoption
Convention and countries that are not.
• Clarify 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 15month validity period will also alleviate the
burden on prospective adoptive parents and
adoption service providers to monitor multiple expiration dates.

03AUR2

46894

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

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE
SUMMARY—Continued
Provision
(n) Changes to Genealogy Search and
Records Requests.

(o) Remove Reduced Fee for Naturalization
Applicants Using Form I–942, Request for
Reduced Fee.

Estimated costs or transfers of provision
Quantitative:
Applicants—
• DHS estimates the new annual costs to file
Form G–1041 index search requests and
Form G–1041A records requests will be
$1.3 million annually.

Quantitative:
Applicants—
• Index search and records requestors who
file online, will pay a reduced fee of $10
dollars compared to those who file by
paper.

Qualitative:
Applicants—
• In addition to the filing fee increase, DHS
estimated qualitative per unit cost of $14.70
per index search requests and records request.
DHS/USCIS—
• 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.

DHS is eliminating the reduced fee option for
Form N–400 that applies to applicants
whose documented household income is
greater than 150 percent and not more than
200 percent of the Federal Poverty Guidelines.

Quantitative:
Applicants—
• A transfer of $3.7 million annually from applicants who previously filed Form N–400
with the reduced fee. These individuals will
no longer be able to request a reduced
Form N–400 fee using Form I–942 from different fee-paying applicants.
Qualitative:
Applicants—
• Applicants will have a total per unit cost for
N–400 applications of $182.12 (opportunity
cost to file, biometric collection and travel)
with the increased filing fee.
DHS/USCIS—
• None.

Qualitative:
Applicants—
• Genealogy search and records request
process changes will increase accuracy and
decrease wait times for requestors.
• Fewer individuals may need to file Form G–
1041A to request a record if it is provided
digitally in response to a Form G–1041 filing.
DHS/USCIS—
• Reduce costs for mailing, records 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.
Quantitative:
Applicants—
• None.

(p) Charge for an initial Form I–765 while an
asylum application is pending.

DHS will require a fee for an initial Application
for Employment Authorization, Form I–765,
when asylum applicants apply for asylum or
file an Application for Asylum and for Withholding of Removal, Form I–589. Currently,
USCIS exempts these initial applicants from
a fee with pending asylum applications.

(q) Charge a fee for Form I–589, Application
for Asylum and for Withholding of Removal.

DHS will require a $50 fee for Form I–589,
Application for Asylum and for Withholding
of Removal.

(r) Combining Fees for Form I–881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant
to Section 203 of Public Law 105–100
[NACARA]).

khammond on DSKJM1Z7X2PROD with RULES2

Purpose of provision
DHS is changing how USCIS processes genealogy requests.
DHS is expanding the use of electronic genealogy requests; changing the search request process so that USCIS can provide
requesters with digital records, if they exist;
and changing the genealogy fees.
DHS is also offering an online filing fee, for
those genealogy searches and records requests.

DHS is combining the current multiple fees
charged for an individual or family into a
single fee for each filing of Form I–881, Application for Suspension of Deportation or
Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–
100, the Nicaraguan Adjustment and Central American Relief Act [NACARA]).

Quantitative:
Applicants—
• A transfer of $118.8 million annually to applicants who file an initial Form I–765 with a
pending asylum application from different
fee-paying applicants.
• Applicants could have costs in lost wages
and employers could have costs in terms of
lost productivity.
DHS/USCIS—
• None.
Quantitative:
Applicants—
• A transfer of $5.5 million from Asylum applicants filing Form I–589 to different fee-paying applicants.

Qualitative:
Applicants—
• Some applicants may not be able to afford
this fee and will no longer be able to apply
for asylum.
Quantitative:
Applicants—
• A transfer of $0.43 million annually to those
who apply for suspension of deportation or
special rule cancellation of removal under
NACARA using Form I–881 from different
groups of fee-paying individuals.

Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00108

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

Estimated benefits of provision

Quantitative:
Applicants—
• $0.05 million annual quantitative savings to
the applicants filing for a N–400 will be in
the I–942 opportunity costs of time, to complete the form being eliminated.
DHS/USCIS—
• A qualitative benefit to DHS by eliminating
the Form I–942 will reduced the administrative burden on the agency to process the
Form I–942.
Quantitative:
Applicants—
• Other EAD applicants will not be required to
subsidize EADs for pending asylum applicants.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.
Quantitative:
Applicants—
• $0.74 million in transfers from the government to asylum I–589 applicants who will
pay a reduced fee of $50 for Form I–485
Application to Register Permanent Residence or Adjust Status from $1,130 to
$1,080 because their I–589 was approved.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.
Quantitative:
Applicants—
• $0.03 million in savings from the reduced
passport-style photos requirement. They
currently have to provide 4 photos and now
they will only be required to provide 2 which
will save each applicant money and by not
traveling to ASC facilities, for biometric collection/submission.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• 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.

03AUR2

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

46895

TABLE 7—SUMMARY OF PROVISIONS AND IMPACTS—COSTS, TRANSFERS, AND BENEFITS OF THIS FINAL RULE
SUMMARY—Continued
Provision

Purpose of provision

(s) Clarify who must pay a 9–11 Response
and Biometric Entry-Exit Fee for H–1B and
L–1.

Estimated costs or transfers of provision

DHS will apply the 9–11 Response and Biometric Entry-Exit Fee to all covered petitions
(meaning those meeting the 50 employee/
50 percent H–1B or L test), whether for new
employment or extension.

A full regulatory impact analysis
(RIA) of this final rule can be found in
the docket at www.regulations.gov. In

Quantitative:
Applicants—
• A transfer of $199.2 million in petition fees
to the government from fee paying petitioners for extensions into the 9–11 Response Biometric Entry-Exit account.
Qualitative:
Applicants—
• None.
DHS/USCIS—
• None.

addition to the impacts summarized
here, Table 8 presents the accounting

Estimated benefits of provision
Quantitative:
Applicants—
• None.
Qualitative:
Applicants—
• Fee will consistently be applied to all H–1B
or L–1 petitions, whether for new employment or extension.
DHS/USCIS—
• The collected fees will help increase the 9–
11 Response and Biometric Entry-Exit fee
account for biometric entry-exit screening,
deficit reduction, and other public purposes
funded by general Treasury revenues.

statement as required by Circular A–
4.131

TABLE 8—OMB A–4 ACCOUNTING STATEMENT ($, 2019), PERIOD OF THE ANALYSIS 2020–2029
Category
Benefits:
Annualized Monetized Benefits over 10 years ...................................................

Annualized quantified, but un-monetized, benefits. Unquantified Benefits ...............

Costs:
Annualized monetized costs over 10 years (discount rate in parenthesis) ........

Primary
estimate

Minimum
estimate

N/A ................................
N/A ................................

N/A ................................
N/A ................................

khammond on DSKJM1Z7X2PROD with RULES2

131 OMB Circular A–4 is available at:
www.whitehouse.gov/sites/default/files/omb/assets/
omb/circulars/a004/a-4.pdf.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

132 See

N/A.
N/A.
RIA.

(3%) ¥$8,689,762 ........
(7%) ¥$8,689,762 ........

RIA.

N/A ................................
N/A ................................

(3%) $7,664,090 ...........
(7%) $7,664,090 ...........
N/A

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.

RIA, Section E: Removal Fee Waivers.

Frm 00109

Source
citation

USCIS sets fees at levels sufficient to cover the full cost of the corresponding
services associated with fairly and efficiently adjudicating immigration benefit
requests and at a 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.

Annualized quantified, but un-monetized, costs .................................................
Qualitative (unquantified) costs ..................................................................................

Maximum
estimate

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

03AUR2

46896

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

TABLE 8—OMB A–4 ACCOUNTING STATEMENT ($, 2019), PERIOD OF THE ANALYSIS 2020–2029—CONTINUED
Primary
estimate

Category

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 specific form populations to 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 Government from Fee-Paying applicants/petitions.

(3%) $832,239,426 .......
(7%) $832,239,426.

.......................................

.......................................

RIA.

(3%) $551,842,481 .......
(7%) $551,842,481.

.......................................

.......................................

RIA.

Miscellaneous analyses/category

Effects.

Effects on state, local, and/or tribal governments

None.
The fees in this rule will not have a significant economic impact on a substantial number of small entities for entities filing Forms I–129, I–40, I–360, I–910.
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 .................................................................................................
Effects on Growth ...............................................................................................

None.
None.

B. Regulatory Flexibility Act

khammond on DSKJM1Z7X2PROD with RULES2

Preamble.

Effects on small businesses ...............................................................................

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
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

rulemaking at http://
www.regulations.gov.
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

PO 00000

Frm 00110

Fmt 4701

Sfmt 4700

FRFA and Small Entity
Analysis (SEA).

None.
None.

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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
134 See

8 U.S.C. 1356(m).
31 U.S.C. 901–03.
136 See economic analysis (RIA) Section M
Changes to Genealogy Search and Records Requests
and Section E in the SEA for further detailed
135 See

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

10,000 genealogy requests each year, so
the fees should not affect hundreds of
thousands of people as the commenter
mentions.
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 standalong 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
information pertaining to the economic impact on
small entities.

PO 00000

Frm 00111

Fmt 4701

Sfmt 4700

46897

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46898

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

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 nonprofit 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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
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.
139 U.S. Census Bureau, NAICS code listing:
http://www.census.gov/eos/www/naics/.

PO 00000

Frm 00112

Fmt 4701

Sfmt 4700

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.
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 nonmatches (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
140 SBA size standards effective October, 2017.
Visited April, 2018. https://www.naics.com/wpcontent/uploads/2017/10/SBA_Size_Standards_
Table.pdf.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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-theRFA-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 × 100 = .04 percent;
$22 per entity/$46,980 directors of religious
activities and education × 100 = .05 percent;
$22 per entity/$35,860 other religious workers ×
100 = .06 percent.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
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-forprofit entities and only 4 small
governmental jurisdictions. Similarly, of
the total 550 small entities in the sample
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.

PO 00000

Frm 00113

Fmt 4701

Sfmt 4700

46899

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.
a. Petition for a Nonimmigrant Worker,
Form I–129
DHS is separating Form I–129,
Petition for a Nonimmigrant Worker,
150 See Genealogy Program, 73 FR 28026 (May 15,
2008) (final rule).

E:\FR\FM\03AUR2.SGM

03AUR2

46900

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

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
Immigration benefit request

Current fee

Form I–129H1—Named Beneficiaries .............................................................
Form I–129H2A—Named Beneficiaries ...........................................................
Form I–129H2A—Unnamed Beneficiaries .......................................................
Form I–129H2B—Named Beneficiaries ...........................................................
Form I–129H2B—Unnamed Beneficiaries .......................................................
Form I–129O ....................................................................................................
Form I–129 L1A/L1B/LZ Blanket .....................................................................
Forms I–129CW, I–129E&TN, and I–129MISC ...............................................

Final fee

$460
460
460
460
460
460
460
460

$555
850
415
715
385
705
805
695

Fee increase/
decrease
$95
390
¥45
255
¥75
245
345
235

Percent
change
$21
85
¥10
55
¥16
53
75
51

khammond on DSKJM1Z7X2PROD with RULES2

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
The method DHS used to conduct the
SEA was based on a representative
sample of the impacted population with
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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00114

Fmt 4701

Sfmt 4700

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 nonmatched 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 nonmatches (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,

E:\FR\FM\03AUR2.SGM

03AUR2

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

46901

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.

TABLE 10—ECONOMIC IMPACTS ON SMALL ENTITIES WITH REVENUE DATA
Fee increase/
decrease

Immigration benefit request
Form I–129H1 ..........................................................................................................................................................
Form I–129H2A—Named Beneficiaries ..................................................................................................................
Form I–129H2A—Unnamed Beneficiaries ..............................................................................................................
Form I–129H2B—Named Beneficiaries ..................................................................................................................
Form I–129H2B—Unnamed Beneficiaries ..............................................................................................................
Form I–129L ............................................................................................................................................................
Form I–129O ............................................................................................................................................................
Forms I–129CW, I–129E&TN, and I–129MISC ......................................................................................................

$95
390
¥45
255
¥75
345
245
235

Average
impact
percentage
0.15
0.63
¥0.07
0.41
¥0.12
0.56
0.40
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.

khammond on DSKJM1Z7X2PROD with RULES2

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 subscriptionbased, 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

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Frm 00115

Fmt 4701

Sfmt 4700

E:\FR\FM\03AUR2.SGM

03AUR2

46902

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 nonmatched 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 nonmatches (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

PO 00000

Frm 00116

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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
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-theRFA-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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
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
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 × 100 = .04 percent;
$22 per entity/$46,980 directors of religious
activities and education × 100 = .05 percent;
$22 per entity/$35,860 other religious workers ×
100 = .06 percent.

PO 00000

Frm 00117

Fmt 4701

Sfmt 4700

46903

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.
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.
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.

E:\FR\FM\03AUR2.SGM

03AUR2

46904

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

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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).
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
163 USCIS Immigrant Investor Regional Centers:
https://www.uscis.gov/working-united-states/
permanent-workers/employment-basedimmigration-fifth-preference-eb-5/immigrantinvestor-regional-centers (last reviewed/updated
Aug. 20, 2019).

PO 00000

Frm 00118

Fmt 4701

Sfmt 4700

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 nonTEA 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.
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
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.
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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

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
166 Calculation: 1 percent of $446,500 = $4,465
(the new fee for Form I–924A).

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.

PO 00000

Frm 00119

Fmt 4701

Sfmt 4700

46905

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

E:\FR\FM\03AUR2.SGM

03AUR2

46906

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

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.

khammond on DSKJM1Z7X2PROD with RULES2

TABLE 11—INFORMATION COLLECTION
OMB No.

Form No.

Form name

Type of information collection.

1615–0105 ...................

G–28 ...........................

1615–0096 ...................

G–1041 .......................

Notice of Entry of Appearance as Attorney or
Accredited Representative.
Genealogy Index Search Request ..................

No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.

G–1041A ....................

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Genealogy Records Request
microfilm or hard copy file).

Frm 00120

Fmt 4701

Sfmt 4700

(For

each

E:\FR\FM\03AUR2.SGM

03AUR2

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

46907

TABLE 11—INFORMATION COLLECTION—Continued
OMB No.

Form No.

Form name

Type of information collection.

1615–0079 ...................

I–102 ..........................

1615–0111 ...................

I–129CW ....................

No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.

1615–0146 ...................

I–129CWR ..................
I–129E&TN .................

1615–0001 ...................

I–129F ........................

Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.
Petition for a CNMI-Only Nonimmigrant Transitional Worker.
Semiannual Report for CW–1 Employers.
Application for Nonimmigrant Worker: E and
TN Classifications.
Petition for Alien Fiance´(e) .............................

1615–0009 ...................

I–129H1 ......................

1615–0150 ...................

I–129H2A ...................

1615–0149 ...................

I–129H2B ...................

1615–0147 ...................

I–129L ........................

1615–0145 ...................

I–129MISC .................

1615–0148 ...................

I–129O ........................

1615–0012 ...................

I–130 ..........................
I–130A ........................

1615–0013 ...................
1615–0135 ...................

I–131 ..........................
I–131A ........................

1615–0015 ...................

I–140 ..........................

1615–0016 ...................

I–191 ..........................

1615–0017 ...................

I–192 ..........................

1615–0018 ...................

I–212 ..........................

1615–0095 ...................

I–290B ........................

1615–0020 ...................

I–360 ..........................

1615–0023 ...................

I–485 ..........................
I–485A ........................
I–485J .........................

1615–0026 ...................

I–526 ..........................

1615–0003 ...................

I–539 ..........................

1615–0003 ...................

I–539A ........................

1615–0067 ...................

I–589 ..........................

1615–0028 ...................

I–600 ..........................
I–600A ........................

khammond on DSKJM1Z7X2PROD with RULES2

I–600/A SUPP1 ..........
I–600/A SUPP2 ..........
I–600/A SUPP3 ..........
1615–0029 ...................

I–601 ..........................

1615–0123 ...................

I–601A ........................

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

PO 00000

Petition for Nonimmigrant Worker: H–1 Classifications.
Petition for Nonimmigrant Worker: H–2A
Classification.
Petition for Nonimmigrant Worker: H–2B
Classification.
Petition for Nonimmigrant Worker: L Classifications.
Petition for Nonimmigrant Worker: H–3, P, Q,
or R Classifications.
Petition for Nonimmigrant Worker: O Classifications.
Petition for Alien Relative ...............................
Supplemental Information for Spouse Beneficiary.
Application for Travel Document ....................
Application for Travel Document (Carrier Documentation).
Immigrant Petition for Alien Worker ................
Application for Relief Under Former Section
212(c) of the Immigration and Nationality
Act.
Application for Advance Permission to Enter
as Nonimmigrant.
Application for Permission to Reapply for Admission Into the United States After Deportation or Removal.
Notice of Appeal or Motion .............................
Petition for Amerasian, Widow(er), or Special
Immigrant.
Application to Register Permanent Residence
or Adjust Status.
Supplement A to Form I–485, Adjustment of
Status Under Section 245(i).
Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section
204(j).
Immigrant Petition by Alien .............................
Application to Extend/Change Nonimmigrant
Status.
Supplemental Information for Application to
Extend/Change Nonimmigrant Status.
Application for Asylum and for Withholding of
Removal.
Petition to Classify Orphan as an Immediate
Relative.
Application for Advance Processing of an Orphan Petition.
Form I–600A/I–600 Supplement 1, Listing of
Adult Member of the Household.
Form I–600A/I–600 Supplement 2, Consent
to Disclose Information.
Form I–600A/I–600 Supplement 3, Request
for Action on Approved Form I–600A/I–600.
Application for Waiver of Grounds of Inadmissibility.
Application for Provisional Unlawful Presence
Waiver.

Frm 00121

Fmt 4701

Sfmt 4700

New Collection.
No material or non-substantive change to a
currently approved collection.
Revision of a Currently Approved Collection.
New Collection.
New Collection.
New Collection.
New Collection.
New Collection.
No material or non-substantive change to a
currently approved collection.
Revision of a Currently Approved Collection.
Revision of a Currently Approved Collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.

No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
Revision of a Currently Approved Collection.
Revision of a Currently Approved Collection.

No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.

E:\FR\FM\03AUR2.SGM

03AUR2

46908

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
TABLE 11—INFORMATION COLLECTION—Continued

OMB No.

Form No.

Form name

Type of information collection.

1615–0030 ...................

I–612 ..........................

No material or non-substantive change to a
currently approved collection.

1615–0032 ...................

I–690 ..........................

1615–0034 ...................

I–694 ..........................

1615–0035 ...................

I–698 ..........................

1615–0038 ...................

I–751 ..........................

Application for Waiver of the Foreign Residence Requirement (Under Section 212(e)
of the INA, as Amended).
Application for Waiver of Grounds of Inadmissibility.
Notice of Appeal of Decision Under Sections
245A or 210 of the Immigration and Nationality Act.
Application to Adjust Status From Temporary
to Permanent Resident (Under Section
245A of the INA).
Petition to Remove Conditions on Residence

1615–0040 ...................
1615–0005 ...................

I–765 ..........................
I–817 ..........................

1615–0043 ...................

I–821 ..........................

1615–0044 ...................

I–824 ..........................

1615–0045 ...................

I–829 ..........................

1615–0072 ...................

I–881 ..........................

1615–0082 ...................

I–90 ............................

1615–0048 ...................

I–907 ..........................

Application for Action on an Approved Application or Petition.
Petition by Investor to Remove Conditions on
Permanent Resident Status.
Application for Suspension of Deportation or
Special Rule Cancellation of Removal (Pursuant to Sec. 203 of Pub. L. 105–100).
Application to Replace Permanent Resident
Card.
Request for Premium Processing Service ......

1615–0114 ...................

I–910 ..........................

Application for Civil Surgeon Designation ......

1615–0116 ...................
1615–0099 ...................

I–912 ..........................
I–914 ..........................

Request for Fee Waiver ..................................
Application for T nonimmigrant status ............

1615–0104 ...................

I–918 ..........................

Petition for U nonimmigrant status .................

1615–0061 ...................

I–924 ..........................

1615–0106 ...................

I–924A ........................
I–929 ..........................

1615–0136 ...................

I–941 ..........................

Application for Regional Designation Center
Under the Immigrant Investor Program.
Annual Certification of Regional Center.
Petition for Qualifying Family Member of a U–
1 Nonimmigrant.
Application for Entrepreneur Parole ...............

1615–0133 ...................
1615–0122 ...................

I–942 ..........................
Immigrant Fee ............

Application for Reduced Fee ..........................
Fee paid for immigrant visa processing ..........

1615–0050 ...................

N–336 .........................

1615–0052 ...................

N–400 .........................

Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336.
Application for Naturalization ..........................

1615–0056 ...................

N–470 .........................

1615–0091 ...................

N–565 .........................

1615–0057 ...................

N–600 .........................

1615–0087 ...................

N–600K ......................

khammond on DSKJM1Z7X2PROD with RULES2

Various USCIS Forms
This final rule will require nonsubstantive 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

Application for Employment Authorization ......
Application for Benefits Under the Family
Unity Program.
Application for Temporary Protected Status ...

Application to Preserve Residence for Naturalization Purposes.
Application for Replacement of Naturalization/
Citizenship Document.
Application for Certification of Citizenship ......
Application for Citizenship and Issuance of
Certificate under Section 322.

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

PO 00000

Frm 00122

Fmt 4701

Sfmt 4700

No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
Revision of a Currently Approved Collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
Revision of a Currently Approved Collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive change to a
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
Discontinuation
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.
No material or non-substantive
currently approved collection.

change to a
change to a
change to a
change to a
change to a
change to a
change to a
change to a
change to a

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
OMB 83–C, and amended information
collection instruments to OMB for
review and approval in accordance with
the PRA.170

cost burden associated with this
collection of information is
$207,047,510.

USCIS Form I–129H1

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 forprofit; 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.

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 forprofit; 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
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. . .

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

USCIS Form I–129H2A

PO 00000

Frm 00123

Fmt 4701

Sfmt 4700

46909

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 forprofit; 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

E:\FR\FM\03AUR2.SGM

03AUR2

46910

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

khammond on DSKJM1Z7X2PROD with RULES2

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 forprofit; 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 forprofit; 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 forprofit; 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

PO 00000

Frm 00124

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00125

Fmt 4701

Sfmt 4700

46911

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.

E:\FR\FM\03AUR2.SGM

03AUR2

46912

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

khammond on DSKJM1Z7X2PROD with RULES2

(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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00126

Fmt 4701

Sfmt 4700

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.

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

(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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 threeyear 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.

PO 00000

Frm 00127

Fmt 4701

Sfmt 4700

46913

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.

E:\FR\FM\03AUR2.SGM

03AUR2

46914

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

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
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.

2. The heading for part 103 is revised
to read as set forth above.
■ 3. Section 103.2 amended:
■ a. By revising the last sentence of
paragraph (a)(1) and adding a new last
sentence;
■ b. By revising paragraph (a)(7)(ii)(D);
■ c. In paragraph (b)(9) introductory
text, by removing ‘‘8 CFR
103.7(b)(1)(i)(C)’’ and adding in its place

khammond on DSKJM1Z7X2PROD with RULES2

■

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

‘‘8 CFR 106.2’’ in the second sentence;
and
■ d. By revising paragraph (b)(19)(iii).
The revisions read as follows:
§ 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.
*
*
*
*
*
§ 103.3

[Amended]

4. Section 103.3 is amended in
paragraph (a)(2)(i) by removing ‘‘§ 103.7
of this part’’ and adding in its place ‘‘8
CFR 106.2’’.

■

§ 103.5

[Amended]

5. Section 103.5 is amended in
paragraph (a)(1)(iii)(B) by removing
‘‘§ 103.7’’ and adding in its place ‘‘8
CFR 106.2’’.

■

PO 00000

Frm 00128

Fmt 4701

Sfmt 4700

6. Section 103.7 is revised to read as
follows:

■

§ 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
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 portof-entry: $6.00.
(5) Form I–94W. For issuance of
Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border port-ofentry 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
■ 7. Section 103.17 is revised to read as
follows:
§ 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.
■ 8. Section 103.40 is revised to read as
follows:
§ 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

PO 00000

Frm 00129

Fmt 4701

Sfmt 4700

46915

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

E:\FR\FM\03AUR2.SGM

03AUR2

46916

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

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.
§ 103.41

[Removed and Reserved]

9. Section 103.41 is removed and
reserved.
■ 10. Part 106 is added to read as
follows:
■

PART 106—USCIS FEE SCHEDULE
Sec.
106.1
106.2
106.3
106.4
106.5
106.6

Fee requirements.
Fees.
Fee waivers and exemptions.
Premium processing service.
Authority to certify records.
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.

khammond on DSKJM1Z7X2PROD with RULES2

§ 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

§ 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

PO 00000

Frm 00130

Fmt 4701

Sfmt 4700

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 Fiance´(e), Form
I–129F. (i) For filing a petition to
classify a nonimmigrant as a fiance´e or
fiance´ 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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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

PO 00000

Frm 00131

Fmt 4701

Sfmt 4700

46917

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46918

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

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 longterm 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,

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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,

PO 00000

Frm 00132

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 NonForm 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

PO 00000

Frm 00133

Fmt 4701

Sfmt 4700

46919

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;

E:\FR\FM\03AUR2.SGM

03AUR2

46920

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

(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.

khammond on DSKJM1Z7X2PROD with RULES2

§ 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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:

PO 00000

Frm 00134

Fmt 4701

Sfmt 4700

(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:

E:\FR\FM\03AUR2.SGM

03AUR2

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

khammond on DSKJM1Z7X2PROD with RULES2

§ 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.

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

(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.
§ 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.
§ 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
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.

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

§ 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

PO 00000

Frm 00135

Fmt 4701

Sfmt 4700

46921

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 15month 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:

E:\FR\FM\03AUR2.SGM

03AUR2

46922

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

(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.
*
*
*
*
*
■ 13. Section 204.5 is amended:
■ 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
■ b. By revising paragraph (p)(4).
The revision reads as follows:
§ 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.
*
*
*
*
*

khammond on DSKJM1Z7X2PROD with RULES2

§ 204.6

[Amended]

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’’.

■

§ 204.310

[Amended]

15. Section 204.310 is amended in
paragraph (a)(3)(i) by removing ‘‘8 CFR

■

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

103.7(b)(1)’’ and adding in its place ‘‘8
CFR 106.2’’ and by removing and
reserving paragraph (a)(3)(ii).
§ 204.311

[Amended]

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

§ 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

PO 00000

Frm 00136

Fmt 4701

Sfmt 4700

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.
*
*
*
*
*
§ 204.313

[Amended]

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
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.
§ 211.1

[Amended]

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’’.

■

§ 211.2

[Amended]

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
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.
§ 212.2

[Amended]

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’’.

■

§ 212.3

[Amended]

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

■

E:\FR\FM\03AUR2.SGM

03AUR2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
103.7(b)(1)’’ and adding in its place ‘‘8
CFR 106.2’’.
§ 212.4

[Amended]

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’’.

■

§ 212.7

[Amended]

26. Section 212.7 is amended:
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
■ 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’’.
■
■

§ 212.15

[Amended]

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’’.

■

§ 212.18

[Amended]

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

§ 212.19

Parole for entrepreneurs.

khammond on DSKJM1Z7X2PROD with RULES2

*

*
*
*
*
(b) * * *
(1) Filing of initial parole request
form. An alien seeking an initial grant
of parole as an entrepreneur of a startup 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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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 reparole 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
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.

31. Section 214.1 is amended:
a. In paragraph (c)(1), by removing ‘‘8
CFR 103.7(b)(1)’’ and adding in its place
‘‘8 CFR 106.2’’;
■ b. In paragraph (c)(2), by removing
‘‘§ 103.7 of this chapter’’ and adding in
its place ‘‘8 CFR 106.2’’;
■ c. By revising paragraph (c)(5); and
■ d. In paragraph (j) introductory text,
by removing:
■
■

PO 00000

Frm 00137

Fmt 4701

Sfmt 4700

46923

i. ‘‘a Form I–129’’ and adding in its
place ‘‘an application or petition’’ in the
first sentence; and
■ ii. ‘‘Form I–129’’ and adding in its
place ‘‘application or petition’’ in the
second and third sentences.
The revision reads as follows:
■

§ 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.
*
*
*
*
*
■ 32. Section 214.2 is amended:
■ 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);
■ 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’’;
■ c. By revising paragraph (e)(23)(viii);
■ d. By removing and reserving
paragraph (e)(23)(xv);
■ 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’’;
■ f. By revising paragraph (h)(2)(i)(A);
■ g. In paragraph (h)(2)(i)(B), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘application or petition’’
wherever it appears;
■ h. In paragraph (h)(2)(i)(D), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘the form prescribed by
USCIS’’;
■ i. By revising paragraph (h)(2)(ii);
■ j. In paragraph (h)(5)(i)(A), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘the form prescribed by
USCIS’’;
■ k. By revising paragraph (h)(5)(i)(B);
■ l. In paragraph (h)(6)(iii)(E), by
removing ‘‘I–129’’ and adding in its
place ‘‘the form prescribed by USCIS’’;
■ m. In paragraph (h)(6)(vii), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘application or petition’’
wherever it appears;
■ 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’’;
■ o. By revising paragraph (h)(19)(i);
■ 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’’;
■ q. In paragraph (l)(2)(i), by removing
‘‘Form I–129, Petition for Nonimmigrant

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

46924

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

Worker’’ and adding in its place ‘‘the
form prescribed by USCIS’’ in its place;
■ 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’’;
■ 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;
■ t. In paragraph (l)(14)(ii) introductory
text, by removing ‘‘Form I–129’’ and
adding in its place ‘‘application or
petition’’ wherever it appears;
■ u. In paragraph (l)(17)(i), by removing
‘‘Form I–129’’ and adding in its place
‘‘the form prescribed by USCIS’’
wherever it occurs;
■ v. By revising paragraph (m)(14)(ii)
introductory text;
■ 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;
■ x. In paragraph (o)(2)(iv)(D), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘the form prescribed by
USCIS’’;
■ y. By revising paragraph (o)(2)(iv)(F);
■ z. In paragraph (o)(2)(iv)(G), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘application or petition’’
wherever it appears;
■ 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;
■ bb. In paragraph (o)(12(i), by removing
‘‘Form I–129’’ and adding in its place
‘‘an application or petition’’ in the first
sentence;
■ 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;
■ dd. In paragraph (p)(2)(iv)(C)(2), by
removing ‘‘Form I–129’’ and adding in
its place ‘‘application or petition’’
wherever it appears;
■ ee. By revising paragraph (p)(2)(iv)(F);
■ ff. In paragraph (p)(2)(iv)(H), by
removing ‘‘Form I–129 petition’’ and
adding in its place ‘‘application or
petition’’;
■ gg. In paragraphs (p)(13) and
(p)(14)(i), by removing ‘‘Form I–129’’
and adding in its place ‘‘the form
prescribed by USCIS’’;
■ 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’’;
■ 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’’;

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

jj. In paragraph (q)(4)(iii), by removing
‘‘Form I–129’’ and adding in its place
‘‘the form prescribed by USCIS’’;
■ 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’’;
■ 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’’;
■ mm. In paragraph (q)(6), by removing
‘‘Form I–129’’ and adding in its place
‘‘application or petition’’;
■ nn. By revising paragraph (r)(3)
introductory text and the definition of
‘‘Petition’’ in paragraph (r)(3);
■ oo. By revising paragraph (r)(5);
■ pp. In paragraph (r)(13), by removing
‘‘8 CFR 103.7(b)(1)’’ and adding in its
place ‘‘8 CFR 106.2’’; and
■ qq. By revising paragraphs (w)(5),
(w)(15)(iii), and (w)(16).
The revisions read as follows:
■

§ 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

PO 00000

Frm 00138

Fmt 4701

Sfmt 4700

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

E:\FR\FM\03AUR2.SGM

03AUR2

khammond on DSKJM1Z7X2PROD with RULES2

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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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.
*
*
*
*
*
§ 214.3

[Amended]

33. Section 214.3 is amended:
a. In paragraph (h)(1)(i), by removing
‘‘8 CFR 103.7(b)(1)’’ and adding in its
place ‘‘8 CFR 106.2’’; and
■ 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)’’.
■
■

§ 214.6

[Amended]

§ 214.11

[Amended]

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

PO 00000

Frm 00139

Fmt 4701

§ 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

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.
§ 216.4

Sfmt 4700

[Amended]

38. Section 216.4 is amended in
paragraph (a)(1) by removing ‘‘§ 103.7(b)
of this chapter’’ and adding in its place
‘‘8 CFR 106.2’’.

■

§ 216.5

[Amended]

39. Section 216.5 is amended in
paragraph (b) by removing ‘‘§ 103.7(b) of
this Chapter’’ and adding in its place ‘‘8
CFR 106.2’’.

■

§ 216.6

[Amended]

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

■

Authority: 8 U.S.C. 1103, 1187; 8 CFR part
2.
§ 217.2

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’’.

■

46925

[Amended]

42. Section 217.2 is amended in
paragraph (c)(2) by removing
‘‘§ 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
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

E:\FR\FM\03AUR2.SGM

03AUR2

46926

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

Relating to the Status of Refugees, November
1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR
part 2.
§ 223.2

[Amended]

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
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.
§ 235.1

[Amended]

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

■

§ 235.7

[Amended]

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

■

§ 235.12

[Amended]

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

§ 244.17

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.

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

■

§ 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.
*
*
*
*
*

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)’’.

PART 244—TEMPORARY PROTECTED
STATUS FOR NATIONALS OF
DESIGNATED STATES

§ 235.13

■

■

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

[Amended]

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)’’.

■

Authority: 8 U.S.C. 1103, 1254, 1254a
note, 8 CFR part 2.
§ 244.6

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

khammond on DSKJM1Z7X2PROD with RULES2

§ 236.14

[Amended]

51. Section 236.14 is amended in
paragraph (a) by removing ‘‘§ 103.7(b)(1)
of this chapter’’ and adding in its place
‘‘8 CFR 106.2’’.

■

§ 236.15

[Amended]

52. Section 236.15 is amended in
paragraph (e) by removing ‘‘§ 103.7(b)(1)

■

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

[Amended]

56. Section 244.6 is revised to read as
follows:

■

§ 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 reregistration 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.

PO 00000

Frm 00140

Fmt 4701

Sfmt 4700

57. Section 244.17 is amended by
revising paragraph (a) to read as follows:
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. Reregistration 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
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.
§ 245.7

[Amended]

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’’.

■

§ 245.10

[Amended]

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

■

§ 245.15

[Amended]

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

E:\FR\FM\03AUR2.SGM

03AUR2

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

■

§ 245.18

[Amended]

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’’.

■

§ 245.21

[Amended]

63. Section 245.21 is amended:
■ 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
■ b. In paragraphs (f), (h), and (i), by
removing ‘‘8 CFR 103.7(b)(1)’’ and
adding in its place ‘‘8 CFR 106.2’’.
■

§ 245.23

[Amended]

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).

■

§ 245.24

[Amended]

65. Section 245.24 is amended:
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
■ 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

§ 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.
*
*
*
*
*
■ 69. Section 245a.4 is amended by
revising paragraph (b)(5)(iii) to read as
follows:
§ 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.
*
*
*
*
*
■ 70. Section 245a.12 is amended:
■ a. In paragraphs (b) introductory text
and (c), by removing ‘‘Missouri Service
Center’’ and adding in its place
‘‘National Benefit Center’’;
■ b. By revising paragraph (d)
introductory text;
■ c. In paragraph (d)(1), by removing ‘‘8
CFR 103.7(b)(1)’’ and adding in its place
‘‘8 CFR 106.2’’; and
■ d. By removing and reserving
paragraphs (d)(2), (4), and (6).
The revision reads as follows:
§ 245a.12

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

■

§ 245a.2 Application for temporary
residence.

khammond on DSKJM1Z7X2PROD with RULES2

*

*
*
*
*
(e) * * *
(3) A separate application must be
filed by each applicant with the fees
required by 8 CFR 106.2.
*
*
*
*
*
■ 68. Section 245a.3 is amended by
revising paragraph (d)(3) to read as
follows:

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

[Amended]

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

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

Service Center’’ and adding in its place
‘‘National Benefit Center’’.
§ 245a.20

[Amended]

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’’.

■

§ 245a.33

[Amended]

75. Section 245a.33 is amended in
paragraph (a) by removing ‘‘§ 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
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.
§ 248.3

[Amended]

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

*

§ 245a.13

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

■

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.
*
*
*
*
*

46927

§ 245a.18

[Amended]

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).

■

§ 245a.19

[Amended]

73. Section 245a.19 is amended in
paragraph (a) by removing ‘‘Missouri

■

PO 00000

Frm 00141

Fmt 4701

Sfmt 4700

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.
§ 264.2

[Amended]

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’’.

■

§ 264.5

[Amended]

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’’.

■

§ 264.6

[Amended]

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
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,

E:\FR\FM\03AUR2.SGM

03AUR2

46928

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

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

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

■

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

khammond on DSKJM1Z7X2PROD with RULES2

*

*
*
*
*
(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

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

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
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.
§ 286.9

[Amended]

85. Section 286.9 is amended in
paragraph (a) by removing
‘‘§ 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
86. The authority citation for part 301
continues to read as follows:

■

Authority: 8 U.S.C. 1103, 1401; 8 CFR part
2.
§ 301.1

[Amended]

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 320—CHILD BORN OUTSIDE
THE UNITED STATES AND RESIDING
PERMANENTLY IN THE UNITED
STATES; REQUIREMENTS FOR
AUTOMATIC ACQUISITION OF
CITIZENSHIP
90. The authority citation for part 320
continues to read as follows:

■

Authority: 8 U.S.C. 1103, 1443; 8 CFR part
2.
§ 320.5

[Amended]

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

■

Authority: 8 U.S.C. 1103, 1443; 8 CFR part
2.
§ 322.3

[Amended]

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
‘‘§ 103.7(b)(1) of this chapter’’ and
adding in its place ‘‘8 CFR 106.2’’.

■

§ 322.5

[Amended]

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

■

PART 319—SPECIAL CLASSES OF
PERSONS WHO MAY BE
NATURALIZED: SPOUSES OF UNITED
STATES CITIZENS
88. The authority citation for part 319
continues to read as follows:

■

Authority: 8 U.S.C. 1103, 1430, 1443.
§ 319.11

[Amended]

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’’.

■

PO 00000

Frm 00142

Fmt 4701

Sfmt 4700

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

■

Authority: 8 U.S.C. 1103, 1435, 1443, 1448,
1101 note.
§ 324.2

[Amended]

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

■

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

E:\FR\FM\03AUR2.SGM

03AUR2

Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
§ 334.2

[Amended]

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

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

■

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.
§ 341.1

[Amended]

Authority: 8 U.S.C. 1101 note, 1103, 1435,
1443, 1454, and 1455.
§ 343a.1

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

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’’.

■

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

■

[Amended]

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

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

khammond on DSKJM1Z7X2PROD with RULES2

■

VerDate Sep<11>2014

20:56 Jul 31, 2020

Jkt 250001

§ 343b.1

[Amended]

105. Section 343b.1 is amended by
removing the term ‘‘8 CFR 103.7(b)(1)’’

■

PO 00000

Frm 00143

Fmt 4701

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

■

[Amended]

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

■

§ 341.5

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

46929

Sfmt 9990

Authority: 8 U.S.C. 1103, 1440 and note,
and 1440–1; 8 CFR part 2.
§ 392.4

[Amended]

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

E:\FR\FM\03AUR2.SGM

03AUR2