USCIS Proposes to Increase Immigration Application or Filing Fees
Posted by Jeff Z. Xie on February 20, 2007 at 15:26:26
[Federal Register: February 1, 2007 (Volume 72, Number 21)]
[Proposed Rules]
[Page 4887-4915]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe07-24]
[[Page 4887]]
----------------------------------------------------------------------- Part III Department of Homeland Security ----------------------------------------------------------------------- U.S. Citizenship and Immigration Services ----------------------------------------------------------------------- 8 CFR Part 103 Adjustment of the Immigration and Naturalization Benefit Application
and Petition Fee Schedule; Proposed Rule
[[Page 4888]]
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DEPARTMENT OF HOMELAND SECURITY U.S. Citizenship and Immigration Services 8 CFR Part 103 [CIS No. 2393-06; Docket No. USCIS-2006-0044]
RIN 1615-AB53
Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This rule proposes to adjust the immigration and
naturalization benefit application and petition fees of the Immigration
Examinations Fee Account. Fees collected from persons requesting these
benefits are deposited into the Immigration Examinations Fee Account.
These fees are used to fund the full cost of processing immigration and
naturalization benefit applications and petitions, biometric services,
and associated support services. In addition, these fees must recover
the cost of providing similar services to asylum and refugee applicants
and certain other immigrants at no charge.
The fees that fund the Immigration Examinations Fee Account were
last updated on October 26, 2005, solely to reflect an increase in
costs due to inflation. The last comprehensive fee review was conducted
in fiscal year 1998. U.S. Citizenship and Immigration Services
conducted a new comprehensive review of the resources and activities
funded by the Immigration Examinations Fee Account and determined that
the current fees do not reflect current processes or recover the full
costs of services that should be provided. Therefore, this rule
proposes to increase the immigration and naturalization benefit
application and petition fee schedule by a weighted average of $174,
from an average fee of $264 to $438. These increases will ensure
sufficient funding to meet immediate national security, customer
service, and standard processing time goals, and to sustain and improve
service delivery. Furthermore, the rule proposes to merge the fees for
certain applications so applicants will pay a single fee rather than
paying several fees for related services. The rule would permit U.S.
Citizenship and Immigration Services to devote certain revenues to
broader investments in a new technology and business process platform
to improve substantially its capabilities and service levels.
This rule also proposes generally to allocate costs for surcharges
and routine processing activities evenly across all form types for
which fees are charged, and to vary fees in proportion to the amount of
adjudication decision-making and interview time typically required.
This rule proposes to eliminate fees for interim benefits, duplicate
filings, and premium processing by consolidating and reallocating costs
among the various fees. The rule also proposes to exempt applicants for
T nonimmigrant status, or for status under the Violence Against Women
Act from paying certain fees, and modify substantially the availability
of individual fee waivers by limiting them to certain specified form
types. DATES: Written comments must be submitted on or before April 2, 2007. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2006-0044 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
E-mail: OSComments@dhs.gov. Include the docket number in
the subject line of the message.
Facsimile: Federal eRulemaking portal at 866-466-5370.
Mail: Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2006-0044
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529. Contact Telephone Number (202) 272-8377. FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Office of
Budget, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Suite 4052,
Washington, DC 20529, telephone (202) 272-1930. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation
II. Legal Authority and Requirements
III. The Immigration Examinations Fee Account
A. General Background
B. Fee Schedule History
C. Urgency and Rationale for New Fee Schedule
1. Delay in Performing a Comprehensive Fee Review
2. Presidential Mandate To Eliminate the Backlog
3. Enhanced Staffing Models
4. Isolation of Premium Processing Fees
5. Eliminating Perceptions of Impediments to Efficiency
6. Program Changes To Ensure Integrity of the Immigration System
7. USCIS' Commitment to Future Fee Reviews
D. Programs and Services Currently Funded
1. Adjudication Services
2. Information and Customer Services
3. Administration
IV. The Fee Review of Immigration Benefit Applications/Petitions and
Biometric Services
A. Methodology
B. Assumptions
C. Defining Processing Activities
D. Sources of Cost Information
E. Adjustments
1. Non-Recurring Costs
2. Inflation
3. Additional Resource Requirements
a. Service Enhancements
b. Security and Integrity Enhancements
c. Humanitarian Program Enhancements
d. Infrastructure Enhancements
4. Summary
F. Determining Application and Petition Surcharge Costs
1. Asylum and Refugee Costs
2. Fee Waiver/Exemption Costs
G. FY 2008/2009 Processing Activity Costs
V. Volumes
A. Biometric Services
B. Immigration Benefit Applications and Petitions
VI. Assigning Costs to Processing Activities
A. Overhead Costs
B. Direct Costs
VII. Assigning Processing Activity Costs to Applications and
Petitions and Biometric Services
A. Biometric Services
B. Immigration Benefit Applications and Petitions
VIII. Assigning Surcharge Costs to Applications and Petitions
A. Method of Assigning Costs
B. Fee Waiver/Exemption Costs
C. Asylum/Refugee Costs
IX. Proposed Fee Adjustments
A. Biometric Services
B. Immigration Benefit Applications and Petitions
X. Impact on Applicants and Petitioners
XI. Fee Waivers
XII. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act [[Page 4889]] PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS List of Acronyms and Abbreviations ABC--Activity-Based Costing
AAO--Administrative Appeals Office
CBP--Bureau of Customs and Border Protection
CFO Act--Chief Financial Officers Act of 1990
CFO--Chief Financial Officer
COOP--Continuity of Operations
CHEP--Cuban Haitian Entrant Program
DHS--Department of Homeland Security
FASAB--Federal Accounting Standards Advisory Board
FBI--Federal Bureau of Investigation
FY--Fiscal Year
FDNS--Fraud Detection and National Security
FOIA--Freedom of Information Act
GAO--Government Accountability Office
GPRA--Government Performance Results Act of 1993
IEFA--Immigration Examination Fee Account
ICE--Bureau of Immigration and Customs Enforcement
IIO--Immigration Information Officers
INA--Immigration and Nationality Act
IT--Information Technology
IBIS--Interagency Border Inspection System
LAP--Lease Acquisition Program
NARA--National Archives and Records Administration
NRP--National Recruitment Program
NSRV--National Security and Records Verification
NACARA--Nicaraguan Adjustment and Central American Relief Act
ORS--Office of Records Services
OMB--Office of Management and Budget
PMB--Performance Management Branch
PA--Privacy Act
TPS--Temporary Protected Status
UMRA--Unfunded Mandates Reform Act of 1995
USPS--United States Postal Service
USCIS--United States Citizenship and Immigration Services
VAWA--Violence Against Women Act I. Public Participation USCIS invites interested persons to participate in this rulemaking
by submitting written data, views, or arguments on all aspects of this
proposed rule. Comments that will provide the most assistance to the
Department of Homeland Security (DHS) and U.S. Citizenship and
Immigration Services (USCIS) in developing these procedures will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2006-0044 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.
The docket includes additional documents that support the analysis
contained in this rule to determine the specific fees that are
proposed. These documents include:
FY 2008/2009 Fee Review Supporting Documentation; and
Small Entity Analysis for Adjustment of the Immigration
Benefit Application/Petition Fee Schedule. These documents may be reviewed on the electronic docket. The budget
methodology software used in computing the immigration benefit
application/petition and biometric fees is a commercial product
licensed to USCIS which may be accessed on-site by appointment by
calling (202) 272-1930. II. Legal Authority and Requirements The Immigration and Nationality Act of 1952, as amended, (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 the costs of providing similar services without
charge to asylum applicants and certain other immigrants. INA section
286(m), 8 U.S.C. 1356(m). The costs of providing services without
charge must be funded by filing fees from other application and
petition types. USCIS refers to the additional charges used to pay for
these services as ``surcharges.'' The INA also states that the fees may
recover administrative costs as well. Id. The fee revenue collected
under section 286(m) of the INA remains available to provide
immigration and naturalization benefits and the collection of,
safeguarding of, and accounting for fees. INA section 286(n), 8 U.S.C.
1356(n).
USCIS must also conform to the requirements of the Chief Financial
Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03. The CFO Act requires
each agency's Chief Financial Officer (CFO) to ``review, on a biennial
basis, the fees, royalties, rents, and other charges imposed by the
agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' Id. at 902(a)(8).
This proposed rule reflects recommendations made by the DHS CFO and
USCIS CFO.
Office of Management and Budget (OMB) Circular A-25 establishes
Federal policy regarding fees assessed for Government services and the
basis upon which federal agencies set user charges sufficient to
recover the full cost to the Federal Government. OMB Circular A-25,
User Charges (Revised), section 6, 58 FR 38142 (July 15, 1993). Under
OMB Circular A-25, the objective of the United States Government is to
ensure that it recovers the full costs of providing specific services
to users. Full costs include, but are not limited to, an appropriate
share of--
(a) Direct and indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement;
(b) Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel and
rents or imputed rents on land, buildings, and equipment; and,
(c) Management and supervisory costs. Full costs are determined based upon the best available records of
the agency. Id. See also OMB Circular A-11, section 31.12 (June 30,
2006) (Fiscal Year (FY) 2008 budget formulation and execution policy
regarding user fees), found at http://www.whitehouse.gov/omb/circulars/a11/current_year/a11_toc.html
. When developing fees for services, USCIS also looks to the cost
accounting concepts and standards recommended by the Federal Accounting
Standards Advisory Board (FASAB). The FASAB defines ``full cost'' to
include ``direct and indirect costs that contribute to the output,
regardless of funding sources.'' Federal Accounting Standards Advisory
Board, Statement of Financial Accounting Standards No. 4: Managerial
Cost Accounting Concepts and Standards for the Federal Government 36
(July 31, 1995). To obtain full cost, FASAB identifies various
classifications of costs to be included, and recommends various methods
of cost assignment. Id. at 33-42.
This rule proposes enhanced service levels, more complete funding
of existing services, and specific cost allocation methods. III. The Immigration Examinations Fee Account A. General Background In 1988, Congress established the Immigration Examination Fee
Account (IEFA). Pub. L. 100-459, sec. 209, 102 [[Page 4890]] Stat. 2186 (Oct. 1, 1988); enacting, after correction, INA sections
286(m), (n), 8 U.S.C. 1356(m), (n). Since 1989, fees deposited into the
IEFA fund the provision of immigration and naturalization benefits, and
other benefits as directed by Congress. In subsequent legislation,
Congress directed that the IEFA fund the cost of asylum processing and
other services provided to immigrants at no charge. Pub. L. 101-515,
sec. 210(d)(1), (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). Consequently,
the immigration benefit application fees were increased to recover
these additional costs. E.g., 59 FR 30520 (June 14, 1994).
USCIS, with limited exceptions, prepares all fingerprint cards (and
electronic fingerprint capture) used to conduct Federal Bureau of
Investigation (FBI) criminal background checks on individuals applying
for certain benefits under the INA. Pub. L. 105-119, tit. I, 111 Stat.
2440, 2448 (Nov. 26, 1997). This legislation also authorizes USCIS to
charge a fee for this fingerprinting service (which is now referred to
as a biometric service fee). Id. The fees are deposited into the IEFA
and are available for expenditure by USCIS to provide services. INA
section 286(n), 8 U.S.C. 1356(n).
Table 1 lists, by form number, the types of immigration benefit
applications and petitions for which fees are collected.\1\
--------------------------------------------------------------------------- \1\ The Form I-905, Application for Authorization to Issue
Certification for Health Care Workers, is represented in Table 1 and
in subsequent tables for the purpose of identifying total IEFA
volume, but is not subject to the proposed fee adjustments in this
rule since the form type and associated fee has only recently been
established. Table 1.--Types of Immigration Benefit Applications and Petitions
------------------------------------------------------------------------
Form No. Description
------------------------------------------------------------------------
I-90......................................... Application to Replace
Permanent Resident Card.
I-102........................................ Application for
Replacement/Initial
Nonimmigrant Arrival--
Departure Document.
I-129........................................ Petition for a
Nonimmigrant Worker.
I-129F....................................... Petition for Alien
Fiance(e).
I-130........................................ Petition for Alien
Relative.
I-131........................................ Application for Travel
Document.
I-140........................................ Immigrant Petition for
Alien Worker.
I-191........................................ Application for Advance
Permission to Return to
Unrelinquished Domicile.
I-192........................................ Application for Advance
Permission to Enter as
Nonimmigrant.
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/Motions............................... Appeal for any decision
other than BIA; Motion
to reopen or reconsider
decision other than BIA.
I-360........................................ Petition for Amerasian,
Widow(er), or Special
Immigrant.
I-485........................................ Application to Register
Permanent Residence or
Adjust Status.
I-526........................................ Immigrant Petition by
Alien Entrepreneur.
I-539........................................ Application to Extend/
Change Nonimmigrant
Status.
I-600/600A................................... Petition to Classify
Orphan as an Immediate
Relative/Application for
Advance Processing of
Orphan Petition.
I-601........................................ Application for Waiver on
Grounds of
Excludability.
I-612........................................ Application for Waiver of
the Foreign Residence
Requirement.
I-687........................................ For Filing Application
for Status as a
Temporary Resident.
I-690........................................ Application for Waiver of
Excludability.
I-694........................................ Notice of Appeal of
Decision.
I-695........................................ Application for
Replacement Employment
Authorization or
Temporary Residence
Card.
I-698........................................ Application to Adjust
Status from Temporary to
Permanent Resident.
I-751........................................ Petition to Remove the
Conditions on Residence.
I-765........................................ Application for
Employment
Authorization.
I-817........................................ Application for Family
Unity Benefits.
I-821........................................ Application for Temporary
Protected Status.
I-824........................................ Application for Action on
an Approved Application
or Petition.
I-829........................................ Petition by Entrepreneur
to Remove Conditions.
I-881........................................ Application for
Suspension of
Deportation or Special
Rule Cancellation of
Removal (pursuant to
section 203 of Pub. L.
105-100) (NACARA).
I-905........................................ Application for
Authorization to Issue
Certification for Health
Care Workers.
I-914........................................ Application for T
Nonimmigrant Status.
N-300........................................ Application to File
Declaration of
Intention.
N-336........................................ Request for Hearing on a
Decision in
Naturalization
Procedures.
N-400........................................ Application for
Naturalization.
N-470........................................ Application to Preserve
Residence for
Naturalization Purposes.
N-565........................................ Application for
Replacement
Naturalization/
Citizenship Document.
N-600/600K................................... Application for
Certification of
Citizenship/Application
for Citizenship and
Issuance of Certificate
under Section 322.
Biometrics................................... Capturing and Processing
Biometric Information.
------------------------------------------------------------------------ Several IEFA fees are set by statute. Section 244(c)(1)(B) of the
INA, 8 U.S.C. 1254a(c)(1)(B), limits the filing fee for Temporary
Protected Status (Form I-821) to $50. Section 286(u) of the INA, 8
U.S.C. 1356(u), created a Premium Processing Service for certain kinds
of employment-based applications, and set the premium fee at $1,000.
Premium Processing Service guarantees that USCIS will process a
petition or application within fifteen calendar days of receiving a
Form I-907, Request for Premium Processing Service. 8 CFR 103.2(f). The
use of premium processing fees is limited to providing premium
processing services themselves and to making infrastructure
improvements in adjudications and customer service processes. INA
section 286(u), 8 U.S.C. 1356(u). These statutory fees relating to [[Page 4891]] immigration services are not affected by this proposed rule.
As is the case with the current fee structure, waiver applications
(Form I-191, Application for Advance Permission to Return to
Unrelinquished Domicile; Form I-192, Application for Advance Permission
to Enter as a Non-Immigrant; Form I-193, Application for Waiver of
Passport and/or Visa; Form I-212, Application to Reapply for Admission
into the U.S. After Deportation; Form I-601, Application for Waiver on
Grounds of Excludability; and Form I-612, Application for Waiver of the
Foreign Residence Requirement) will be combined and subsequently
referenced as ``Waiver Applications.'' One universal fee applies to
these application and form types.
In addition to the IEFA, USCIS receives fee funding from several
smaller, specific accounts, such as the H-1B Nonimmigrant Petitioner
Account under section 286(s) of the INA, 8 U.S.C. 1356(s), and the
Fraud Prevention and Detection Account under section 286(v) of the INA,
8 U.S.C. 1356(v), which this proposed rule does not affect. B. Fee Schedule History The current immigration benefit application and petition fees are
based on a review implemented in FY 1998, adjusted for cost of living
increases and other factors. USCIS periodically adjusts the fees for
inflation with the last adjustment for inflation effective October 25,
2005. 70 FR 56182 (Sept. 26, 2005).
USCIS began charging a fee for fingerprinting services in 1998. 63
FR 12979 (Mar. 17, 1998). USCIS later adjusted the fee to recover the
full costs of providing fingerprinting services. 66 FR 65811 (Dec. 21,
2001). USCIS last adjusted the biometric fee on April 30, 2004 to $70.
69 FR 20528 (April 15, 2004).
Table 2 illustrates the history of the adjustments to the IEFA fee
schedule and the biometric fee schedule. Table 2.--History of Immigration Benefit Application and Petition Fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prior to IEFA
------------------------ FY 1989 FY 1991 FY 1994 FY 1998 FY 2002 FY 2004 Current
Form type FY 1985 FY 1986 (dollars) (dollars) (dollars) (dollars) (dollars) (dollars) fees
(dollars) (dollars) (dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-90........................................ 15 .......... 35 70 75 110 130 185 190
I-102....................................... 15 .......... 35 50 65 85 100 155 160
I-129....................................... 35 .......... 50 70 75 110 130 185 190
I-129F...................................... 35 .......... 40 75 75 95 110 165 170
I-130....................................... 35 .......... 40 75 80 110 130 185 190
I-131....................................... 15 .......... 45 65 70 95 110 165 170
I-140....................................... 50 35 50 70 75 115 135 190 195
Waiver Applications......................... 35 .......... 45 90 95 170 195 250 265
I-290B/Motions.............................. 50 .......... 110 .......... .......... .......... .......... .......... 385
I-360....................................... .......... .......... .......... .......... .......... 110 130 185 190
I-485....................................... 50 .......... 60 120 130 220 255 315 325
I-526....................................... .......... .......... .......... 140 155 350 400 465 480
I-539....................................... 15 .......... 35 70 75 120 140 195 200
I-600/600A.................................. 50 .......... 75 140 155 405 460 525 545
I-687....................................... .......... .......... .......... 185 185 185 185 240 255
I-690....................................... .......... .......... .......... .......... .......... .......... 35 90 95
I-694....................................... 50 .......... .......... .......... .......... .......... 50 105 110
I-695....................................... .......... .......... .......... 15 15 15 15 65 65
I-698....................................... 120 .......... .......... .......... .......... .......... 120 175 180
I-751....................................... .......... .......... 35 65 80 125 145 200 205
I-765....................................... .......... .......... 35 60 70 100 120 175 180
I-817....................................... .......... .......... .......... 75 80 120 140 195 200
I-821....................................... 50 .......... .......... .......... .......... .......... 50 .......... 50
I-824....................................... .......... .......... .......... 30 30 120 140 195 200
I-829....................................... .......... .......... .......... .......... 90 345 395 455 475
I-881....................................... .......... .......... .......... .......... .......... .......... 215 275 285
I-905....................................... .......... .......... .......... .......... .......... .......... .......... .......... 230
I-914....................................... .......... .......... .......... .......... .......... .......... 200 255 270
N-300....................................... 15 .......... 50 .......... .......... 50 60 115 120
N-336....................................... .......... .......... .......... .......... .......... 170 195 250 265
N-400....................................... 35 .......... 60 90 95 225 260 320 330
N-470....................................... 15 .......... 55 .......... .......... 80 95 150 155
N-565....................................... 15 .......... 50 50 65 135 155 210 220
N-600/600K.................................. 35 .......... 60 90 100 160 185 240 255
Biometrics.................................. .......... .......... .......... .......... .......... 25 50 70 70
-------------------------------------------------------------------------------------------------------------------------------------------------------- C. Urgency and Rationale for New Fee Schedule In developing this proposed rule, USCIS reviewed its recent cost
experiences, current service levels, goals for additional services, and
various factors for allocating costs to particular form types. This
rule proposes a fee structure that will allow USCIS to close current
funding gaps, accomplish performance goals, eliminate problematic
incentives, expedite processing, and fairly allocate costs.
For FY 2008 and FY 2009, USCIS projects a continuing funding gap
between revenue and expenses in the IEFA. Over the last several years,
USCIS has come to rely on a combination of fee funding from temporary
programs (e.g., Temporary Protected Status, penalty fees under INA
section 245(i), 8 U.S.C. 1255(i)) and appropriated subsidies for
temporary programs (e.g., backlog elimination) to close this funding
gap. With the termination of these temporary funding sources, fee
adjustments are needed to prevent significant service [[Page 4892]] reductions, backlog increases, and reduced investment in
infrastructure. While the workload associated with these temporary
programs will terminate along with the termination of its funding
sources, significant fixed costs that were previously recovered through
the fees still remain. This includes costs that do not directly vary
with this temporary workload, including USCIS Headquarters office costs
and asylum and refugee operations.
USCIS has received appropriated dollars for the past several years
to improve processing times as part of a five year effort to reduce a
backlog of immigration applications. In FY 2006, Congress appropriated
$115 million for USCIS, subject to later rescissions. Department of
Homeland Security Appropriations Act, 2006, 109-90, 119 Stat. 2064,
2080 (Oct. 18, 2005). In FY 2007, Congress appropriated $181,990,000
for USCIS. Department of Homeland Security Appropriations Act, 2007,
110 Stat. 1355, 1374 (Oct. 4, 2006). During the time since the last
comprehensive fee adjustment, USCIS has increased emphasis on national
security and public screening of applicants, and on quality controls.
At the same time, certain immigration benefit determinations have
become more complex as legislation has created new programs and
eligibilities. This resulted in a significant funding gap between
revenues and costs that led to decreases in performance and services.
Because USCIS did not conduct a comprehensive fee review earlier, it
has been limited to the revenue that the current fee structure
provides. This funding gap has resulted in inadequate facilities to
provide services to customers, inadequate investments in infrastructure
to improve service, and, most notably, inadequate case processing
capacity to keep up with the volume of applications and petitions
filed, creating a very significant backlog that would still exist today
if not for the temporary appropriated dollars received from FY 2002 to
FY 2006. However, significant backlogs will recur unless USCIS
restructures its fees to provide adequate case processing capacity.
Spending reductions to meet the funding gap would result in a
reversal of the considerable progress USCIS has made over the last
several years to reduce the backlog of immigration benefit applications
and petitions. Such a reversal would likely include increases in
customer complaints, requests to expedite certain applications and
petitions, litigation seeking mandamus against USCIS, and other
negative consequences that consume more resources in an ad hoc and
reactive manner. This fee rule is essential to bringing fees into
alignment with desired levels of service.
USCIS' security-related activities and objectives are its highest
priority in allocating resources, and the effects of rising immigration
benefit application backlogs could undermine these national security
and public safety objectives. USCIS therefore places an emphasis on
timely background checks to ensure that the United States is not placed
at risk by failing to identify individuals who may be national security
or public safety risks at the earliest possible time in the
adjudications process. Backlogs allow some applicants and petitioners
who are already in the United States to remain in the United States
without authorization, and delay identification of potential risks and
actions to initiate removal proceedings as appropriate.
Based on the current weighted average application/petition fee of
$264 and a projected application/petition fee-paying volume of 4.742
million, immigration benefit application/petition fees will generate
$1.250 billion in annual revenue for the FY 2008 and FY 2009 biennial
period. For the same period, USCIS estimates the annual cost of
processing those immigration and naturalization benefit applications
and petitions, including additional resource requirements, will be
$2.329 billion. The resulting annual funding gap between revenue and
expenses is $1.079 billion, of which $524.3 million is additional
resource requirements (see section IV.E for a detailed discussion of
these requirements).
1. Delay in Performing a Comprehensive Fee Review
The fee changes proposed in this rule reflect a more robust
capability to calculate, predict, and analyze costs and revenues. USCIS
has not performed a comprehensive cost analysis of the IEFA since the
FY 1998 Fee Review. The fact that a comprehensive fee review has been
delayed for such a long period of time is a major reason why the
current fee schedule is inadequate to recover the full costs of USCIS
operations. This is a primary cause for the creation and growth of the
immigration benefit application and petition backlog.
A Government Accountability Office (GAO) Report in January 2004
concluded that the ``fees were not sufficient to fully fund [US]CIS'
operations.'' GAO, Immigration Application Fees: Current Fees are Not
Sufficient to Fund U.S. Citizenship and Immigration Services'
Operations (GAO-04-309R, Jan. 5, 2004) at 2. GAO stated that ``[i]n
part, this has resulted because (1) The current fee schedule is based
on an outdated fee study that did not include all costs of [US]CIS'
operations and (2) costs have increased since that study was completed
due to an additional processing requirement and other actions.'' Id.
GAO recommended that USCIS ``perform a comprehensive fee study to
determine the costs to process new immigration applications.'' Id. at
3. The fee review that is the basis for the proposed fees in this rule
addresses that recommendation.
As noted by the GAO, USCIS currently incurs several significant
costs that are not recovered in the current fee structure. These
include a 2002 estimate of $101 million in costs incurred that any
previous fee increases had not adequately addressed: Integrated Card
Production System; National Customer Service Center; National Records
Center; additional Adjudication Officers; and expansion of Service
Center operations. Id. at 31. The GAO also identified the need to
recover the costs of ``new departmental requirements,'' especially
expanding the number of Interagency Border Inspection System (IBIS)
checks conducted as a result of the September 11, 2001 terrorist
attacks. Id. at 33. A portion of these costs were recovered in the
April 2004 fee increase. GAO also suggested that USCIS identify and
recover ``administrative and overhead'' costs associated with the
creation of USCIS as a separate component within DHS in March 2003. Id.
at 42-44.
Since fee revenues have not been sufficient to recover full
operating costs, USCIS has relied on funding from temporary programs,
curtailed spending in critical areas, used premium processing funds for
base infrastructure rather than for major business infrastructure
improvements to the adjudication and customer-service processes, and
used fees from pending applications to fund applications being
processed. This insufficiency delayed investment in a new technology
and business process platform to radically improve USCIS' capabilities
and service levels as originally envisioned by Congress when it first
established the premium processing program.
2. Presidential Mandate To Eliminate the Backlog
In FY 2002, the President called for an average processing time
standard of six months for the adjudication of most immigration benefit
applications and petitions to eliminate the backlog of pending
applications and petitions at USCIS within five years (end of FY 2006).
USCIS received a total of $460 [[Page 4893]] million in appropriated funds for this effort. At the end of FY 2006,
the backlog was significantly reduced from a high of 3.84 million cases
in January 2004 to 9,482 cases. Additionally, a six-month processing
time standard was achieved for fifteen out of sixteen Backlog
Elimination Plan applications. In some instances, such as
naturalization applications, USCIS decreased processing times to below
the six-month goal. Table 3 sets out the processing times (in terms of
months) for each application and petition as of September 30, 2006.
This fee rule would provide the necessary resources to maintain these
processing time standards and fund further improvements to USCIS
business operations to continue to reduce processing times while
ensuring the appropriate level of security. Table 3.--Application and Petition Processing Times
------------------------------------------------------------------------
Processing
Form No. time (in
months)
------------------------------------------------------------------------
I-90....................................................... 4.38
I-102...................................................... 2.91
I-129...................................................... 2.03
I-129F..................................................... 2.90
I-130...................................................... 6.02
I-131...................................................... 1.97
I-140...................................................... 3.31
Waiver Applications........................................ 9.39
Form I-290B/Motions........................................ 7.73
I-360...................................................... 6.34
I-485...................................................... 7.07
I-526...................................................... 4.14
I-539...................................................... 2.07
I-600/600A................................................. 3.39
I-687...................................................... 10.59
I-690...................................................... 10.19
I-694...................................................... 4.50
I-695...................................................... 22.76
I-698...................................................... 26.85
I-751...................................................... 3.74
I-765...................................................... 1.97
I-817...................................................... 3.94
I-821...................................................... 2.54
I-824...................................................... 3.63
I-829...................................................... 38.94
I-881...................................................... 0.35
I-914...................................................... 3.64
N-300...................................................... 23.88
N-336...................................................... 6.22
N-400...................................................... 5.57
N-470...................................................... 16.18
N-565...................................................... 4.35
N-600/600K................................................. 5.27
------------------------------------------------------------------------ The President's FY 2006 Budget prioritized USCIS resources to
achieve the time standard and eliminate the backlog. After FY 2006,
USCIS' budget requests for adjudication programs will be limited to fee
resources, as USCIS strives to maintain the six-month or less
processing time standard and identify opportunities for performance
improvements within a fee-based environment.
As mentioned previously, the significant reduction in the backlog
is due to temporary appropriated dollars. These funds were not only
necessary to reduce the backlog that had grown prior to FY 2002, but
also to make up for the insufficiency of the fee schedule. This was
clearly made apparent in the FY 2005 budget when Congress appropriated
an additional $60 million towards backlog elimination efforts due to
the significant impact of the September 11th attacks on the United
States on the standards, procedures, and policies of USCIS. Without
this temporary subsidy, not only would the pre-FY 2002 backlogs
continued to have grown, but the backlog would have grown even greater
due to the insufficiency of the fee schedule to process incoming
workload for the period FY 2002 through FY 2006.
3. Enhanced Staffing Models
The new fee schedule will improve service levels and ensure the
security and integrity of the immigration system without causing
backlogs to return. This fee review is based for the first time on an
enhanced staffing model that is designed to align resources with the
need to prevent future backlogs, providing for an efficient and
effective workforce balance. Prior to this analysis, USCIS'
distribution of adjudicators across field offices did not match the
distribution of workload across field offices.
A 2001 GAO report recommended that USCIS ``[d]evelop a staffing
model for processing naturalization applications and expand the model
to include other application types as their processes are reengineered
or automated.'' GAO, Immigration Benefits: Several Factors Impede
Timeliness of Application Processing (GAO-01-488, May 4, 2001) at 55.
In addition, in November 2005, GAO stated that: This kind of planning is consistent with the principle of
integration and alignment that we have advocated as one of the
critical success factors in human capital planning. As we have
previously reported, workforce planning that is linked to strategic
goals and objectives can help agencies be aware of their current and
future needs such as the size of the workforce and its deployment
across the organization. In addition, we have said that the
appropriate geographic and organizational deployment of employees
can further support organizational goals and strategies. GAO, Immigration Benefits: Improvements Needed To Address Backlogs and
Ensure Quality of Adjudications (GAO-06-20, Nov. 21, 2005) at 34.
Historically, USCIS has been required to balance resource
requirements against budgetary realities with the end result often
being a staffing model based on what USCIS could afford, not what is
required to meet acceptable performance standards. Following the last
comprehensive fee review in FY 1998, USCIS' predecessor was only able
to maintain the status quo and the backlog actually increased despite
significant fee increases in FY 1998. The clear distinction between
this proposed fee schedule and prior fee schedules is that the proposed
fee schedule does not simply reflect costs and performance
retrospectively, locking USCIS into a revenue stream that at best
allows it to maintain the status quo. Instead the proposed fee schedule
is designed to provide for an adequate and sustainable level of
investment in staff, infrastructure, and processes designed to improve
the USCIS' ability to administer the nation's immigration laws.
The staffing model identifies sufficient funding not only to meet
current standard processing time goals, but also to sustain and improve
service delivery by providing additional funding to handle sudden
surges in workload, another reason for the growth in immigration
benefit application and petition backlogs. Sufficient capacity to
process workload is a problem not limited to USCIS. Capacity also
relates to agencies that USCIS depends upon to meet its performance
goals. For example, this rule proposes additional funding in support of
FBI name checks.
4. Isolation of Premium Processing Fees
The current fee system has not enabled USCIS to undertake the
investments in a new technology and business process platform that are
needed to radically improve USCIS' capabilities and service levels. The
proposed fee structure is designed to recover annual costs for
facilities, information technology systems, business processes, and
other capacities in a way that allows USCIS to continue improving
service levels, both to applicants/petitioners and to the American
public, through more effective administration of the immigration laws
of the United States. Under the proposed fee schedule, premium
processing revenues will be fully isolated from other revenues and
devoted to the extra services provided to premium processing customers
and to broader investments in a new technology and business process [[Page 4894]] platform to radically improve USCIS' capabilities and service levels.
Specifically, premium processing fees will be used to transform
USCIS from a paper-based process to an electronic environment, making
it possible to incorporate more effective processing of low risk
applicants and better identification of higher risk individuals. The
new operational concept will be based on the types of online customer
accounts used in the private sector in order to facilitate
transactions, track activities, and reduce identity fraud. The solution
will also help to meet customer expectations, generated from their
private sector experiences, for on-demand information and immediate
real-time electronic service over the Internet.
The solution will enable applicants to apply on-line for
immigration benefits by either selecting a specific benefit application
process or by participating in an on-line electronic interview that
will help applicants navigate the system to apply for the correct
benefit in the correct manner. Individuals, employers, and
representatives will establish unique accounts that will enable them to
change attributes such as changes of address or name, and allow
individuals to record a change in marital status, representation, or
other contact information. The solution will provide enhanced and real-
time case status information with e-mail capabilities to request
information or inform the applicant about a pending application and to
enable the entire process to be completed in an efficient paperless
manner.
In short, this proposed rule would fully fund normal operations and
infrastructure maintenance with standard fees so that USCIS can apply
premium fees to significant infrastructure improvements, as envisioned
by Congress. Currently, because of the insufficiency of the fee
schedule, USCIS cannot use premium processing funds to invest in major
infrastructure improvements to the adjudication and customer-service
processes.
5. Eliminating Perceptions of Impediments to Efficiency
This proposed rule would restructure certain fee arrangements that
are currently perceived to provide disincentives for USCIS to improve
efficiency in processing. For example, USCIS has long authorized
certain customers, particularly applicants for adjustment of status, to
apply for certain benefits while the initial application is pending,
referred to generally as ``interim benefits.'' These include, most
importantly, employment authorization and permission to travel abroad
and return to the United States to pursue the pending application. In
the current fee structure, USCIS charges additional fees for interim
benefits in addition to initial application fees. Thus, the longer
cases take to adjudicate, the more total revenue is collected. This
creates the perception that USCIS gains by processing cases slowly.
Through the provisions proposed in this rule, USCIS would eliminate
its reliance on interim benefits as a significant funding source for
base operations and address the problem that aliens are required to pay
for services they would not need if the underlying petition were timely
processed, while ineligible and fraudulent applicants receive work
authorization and travel documents because of processing delays.
Moreover, this change addresses the historic perception that because of
the Congressional requirement that USCIS be self-funded from fees,
USCIS may make decisions that compromise operational efficiency to
ensure revenue flow. Under the proposed fee structure, an applicant for
adjustment of status will pay a single fee. If USCIS is unable to
process the base application within the established processing goals,
the applicant will not pay separate fees for interim benefits, no
matter how long the case remains pending. For certain application
types, most notably applications for adjustment of status to permanent
residence (Form I-485), the most critical interim benefit is the fact
an applicant is allowed to remain in the United States while his or her
application is pending. This spurs USCIS to process cases quickly and
ensure that it promptly identifies those applicants who are risks to
national security or public safety, resolves their cases, and initiates
removal proceedings as appropriate. The restructuring proposed under
this rule would create more appropriate pricing structures and
eliminate perceived disincentives to process cases in a timely manner.
At the same time, USCIS recognizes that, in some cases, delays in
processing applications alone will require issuance of interim
benefits. Accordingly, USCIS has built into the cost model for all
adjustment of status applications the cost of processing interim
benefits for a percentage of applicants.
USCIS estimates that the current application fees paid by an
applicant for adjustment of status with interim benefits over a multi-
year time period are approximately $800. The proposed rule would
increase the adjustment of status application (Form I-485) fee for an
adult applicant to $905, but exempts applicants who have paid that fee
from any additional fee that otherwise might be payable to apply for
advance parole or employment authorization. USCIS anticipates revising
the Form I-485 accordingly, but this proposed rule would give USCIS
flexibility to continue to use the Forms I-131 and I-765 for adjustment
applicants. Either way, no additional fee would be charged for a Form
I-485 applicant who has paid the base fee that now includes the cost of
processing interim benefits.
Similarly, this rule proposes to eliminate from revenue projections
separate fees from the two petitions currently required to be filed for
an alien spouse abroad who will enter the United States in the K-3
nonimmigrant classification for certain spouses of United States
citizens. See INA section 101(a)(15)(K)(ii), 8 U.S.C. 1101(a)(K)(ii); 8
CFR 214.1(a)(2). These two petitions are Form I-130, Petition for Alien
Relative, and Form I-129F, Petition for Alien Fianc[eacute](e). USCIS
is working to consolidate the K-3 petitions so that separate fees will
not be necessary.
The elimination of separate fees for interim benefits or the second
K-3 petition affect more than adjustment of status applicants and
family petitioners. The consolidation of these fees reduces the number
of application types for which any fee is charged and thereby
reallocates the amount of certain processing activity costs,
administrative overhead and surcharge costs that must be spread across
all other fee-paying application and petition types. All other fees
will be increased.
6. Program Changes To Ensure Integrity of the Immigration System
Since the tragic events of September 11, 2001, a persistent issue
has been that weaknesses in the integrity of the immigration system
make the United States vulnerable to terrorism, crime, and the economic
cost of an underground population. USCIS takes these concerns seriously
and has aggressively addressed them with the creation of a new
directorate for National Security and Records Verification (NSRV). This
directorate is focused on preserving the integrity of the immigration
system. One component of the new directorate is the Fraud Detection and
National Security (FDNS) Division. FDNS fulfills its mission in a
variety of ways that include conducting benefit fraud assessments,
providing investigative support to Adjudication Officers, and
implementing remedial processes to discourage fraud.
The current fee structure does not allow FDNS to address fraud more [[Page 4895]] broadly or to attend to USCIS' needs in national security cases. The
proposed fee structure to support FDNS will fill this void. The
proposed fee structure also enhances quality assurance, provides
additional Adjudication Officer training, requires Adjudication
Officers to attend removal proceedings when appropriate, tracks the
delivery of secure documents, and enhances internal security and
investigative operations. Section IV.E details these additional
resource requirements.
7. USCIS' Commitment to Future Fee Reviews
USCIS is committed to update its fees through a similar analysis at
least once every two years. In comparison to fee reviews over the last
decade, which essentially made retrospective adjustments on a narrowly
calculated fee review, future fee reviews will combine assumptions from
recent experiences (which may allow for cost reductions from new
efficiencies) and from prospective activity changes (such as those that
may arise from additional security measures or performance changes). D. Programs and Services Currently Funded For FY 2007, the IEFA is anticipated to provide approximately 89%
of USCIS' total funding. The major programs, activities and services
funded by the IEFA are discussed below.
1. Adjudication Services
The Adjudication Services program is the primary program
responsible for the processing of immigration benefit applications and
petitions while ensuring the security of the immigration system.
Through a network of 250 local offices, Application Support Centers,
Service Centers, and Asylum Offices, the program funds the timely and
quality processing of: (1) Family-based petitions--facilitating the
process for close relatives to immigrate, gain permanent residence,
work, etc.; (2) Employment-based petitions--facilitating the process
for current and prospective employees to immigrate to or stay in the
United States temporarily; (3) Asylum and Refugee processing--
adjudicating asylum applications, conducting credible and reasonable
fear screenings, and the processing of refugees; and (4)
Naturalization--processing applications of those who wish to become
United States citizens. The Adjudication Services program currently
receives 94% of its total funding from the IEFA.
On average, USCIS annually: (1) Processes over six million
applications and petitions, (2) processes close to 90,000 asylum
applicants, (3) interviews approximately 70,000 refugee applicants, and
(4) naturalizes approximately half a million new citizens. Adjudication
Officers review applications and often conduct interviews of the
applicants and petitioners. They have the dual responsibility of
providing courteous service to the public while being alert to the
possibility of security concerns, fraud, and misrepresentation.
District Adjudications Officers are located in offices nationwide.
Service Center Adjudications Officers are located only in the following
Service Centers: St. Albans, VT; Lincoln, NE; Irving, TX; and Laguna
Niguel, CA.
An Asylum Officer determines if an applicant for asylum qualifies
for that status based on the requirements of the INA. These officers
are specially trained in country conditions, interviewing techniques
(including credibility determinations), and asylum law. Positions are
located in eight Asylum Offices throughout the United States. The
Asylum Officer Corps and new Refugee Officer Corps (which provides
similar adjudicative services for refugee applications overseas) also
leverage specialized resources, including professional interpreters, to
deliver timely and accurate provision of legal protection to
individuals who have been persecuted and displaced.
In coordination with other components of DHS and other Federal
agencies, USCIS combats immigration benefit fraud through the FDNS
office in the NSRV Directorate, as previously discussed. USCIS trains
FDNS staff to analyze and identify fraud patterns and trends and
document evidence of fraud for administrative action. USCIS will
continue to implement fraud detection measures in Service Centers,
field offices, and Refugee and Asylum programs, including training
adjudications staff to proactively identify fraud/security profiles
while considering an application. Apart from FDNS, the other major
division within NSRV is the Office of Records Services (ORS), which
establishes policies, procedures, and performance objectives for the
USCIS Records Program. The Records Program manages over 160 million
Alien-files and related records in support of the enforcement and
benefits missions of the DHS. The ORS also manages the National Records
Center and coordinates the USCIS Freedom of Information Act/Privacy Act
(FOIA/PA) program.
2. Information and Customer Services
Through the Information and Customer Services Program, USCIS
reduces the frequency of repeated, redundant applicant and petitioner
contact with USCIS employees, thus improving USCIS efficiency. USCIS
makes it easier for the public to get the information they need when
they need it, through multiple channels of available assistance,
including the USCIS Web site, toll-free call center (National Customer
Service Call Center), and face-to-face appointments. On an annual
basis, USCIS: (1) Handles over 14 million calls via the National
Customer Service Call Centers, (2) receives 78 million ``hits'' on the
USCIS Web site, and (3) serves approximately five million individuals
through information counters at local offices. The Information and
Customer Services program currently receives 52% of its total funding
from the IEFA.
Each year millions of people apply for various types of benefits
under the INA. The Immigration Information Officers (IIOs) provide
information about immigration and nationality requirements; IIOs are
not authorized to, and do not, provide legal advice to applicants and
petitioners. IIOs assist with a wide variety of requests, including
questions on how to complete required form types, and explain the
administrative procedures and normal processing times for each
application. IIOs provide a range of customer services, including
certain case services and problem resolution assistance on applications
and petitions. IIOs also process and make decisions on a limited array
of applications and petitions. Positions are located throughout the
country in Districts, Sub Offices, Asylum Offices, and Service Centers.
Through the National Customer Service Center, USCIS provides toll-
free nationwide assistance to individuals calling from within the
United States. Individuals can access live assistance from 8 a.m. until
6 p.m., Monday through Friday (local time; hours slightly different for
those persons calling from outside the continental United States). They
can also access recorded information (including information about the
status of their specific case) 24 hours a day/7 days a week. Both live
and recorded service are available in English and Spanish. Callers from
outside the United States can access limited information through a
separate toll number.
USCIS receives about 1.7 million direct information and customer
service related contacts per month, or more than 20 million contacts
per year. [[Page 4896]] Today, over 84% of all information and customer service interactions
are self-service. The self-service options provide the public with new
choices that are simpler and more effective to both the public and
USCIS. They also save significant amounts of money compared to
providing live assistance to all individuals.
In-person service continues, however, to be a critical component of
the USCIS service model. To improve service levels, USCIS has shifted
to offering most in-person service by appointment that is scheduled
through USCIS' Web site. This has helped reduce long lines and wait
times, and address public concerns and inquiries. USCIS also has
developed and made available online a new series of focused fact sheets
on available services to assist and communicate more clearly with the
public.
3. Administration
Nine Headquarters offices provide administrative and mission
support to Headquarters offices and USCIS field locations worldwide.
The USCIS Administration program currently receives 100% of its total
funding from the IEFA.
The Office of Administration plans, develops, implements,
and evaluates USCIS-wide policies and procedures for the operation of
centrally managed, USCIS-wide support activities. It is responsible for
programming, budgeting and oversight for the direct delivery of
administrative support to USCIS in the areas of Acquisition,
Procurement, Asset Management and Personal Property, Facilities and
Real Property, and Logistics.
The Office of Planning, Budget, and Finance is responsible
for planning and budgeting integration and financial management
activities.
The Office of Chief Counsel consists of legal divisions
advising and representing USCIS Operations both at Headquarters and in
the field on behalf of the DHS General Counsel. Chief Counsel divisions
include Adjudications Law, Refugee and Asylum Law, National Security,
Commercial and Administrative Law, Ethics, Legislation, Field Offices,
and Training, with each division responsible for reviewing,
interpreting, and providing legal advice and litigation support to
USCIS operational components.
The Office of Citizenship promotes civic integration and
instruction and training on citizenship responsibility for legal
immigrants interested in becoming naturalized citizens of the United
States, including development of educational materials and community
outreach activities.
The Office of Communications oversees and coordinates
communication to internal and external stakeholders in order to empower
employees with the tools needed to perform their jobs, to educate the
public regarding USCIS benefits and services, and to facilitate
consistent messaging for USCIS.
The Office of Congressional Relations advises the Director
on legislative matters and serves as the primary point of contact for
members of Congress and congressional staffers.
The Office of Policy and Strategy directs, prioritizes,
and sets the agenda for USCIS-wide policy, strategy, and long-term
planning activities, as well as research and analysis on immigration
services issues.
The Office of Security and Investigations (OSI) oversees
secure communications and document storage, USCIS-wide physical and
facility security programs, and security awareness training.
The Office of Human Capital and Training manages human
capital policy and operations and provides continuous professional
training and career development to all USCIS employees through a
variety of career, executive and managerial development programs. IV. The Fee Review of Immigration Benefit Applications/Petitions and
Biometric Services The current immigration benefit application and petition fees are
based on the FY 1998 Fee Review, adjusted for cost of living increases
and other factors. The FY 1998 Fee Review model does not reflect
today's accounting models, costs and processes have changed
significantly since the FY 1998 Fee Review, and the current fees do not
reflect today's costs and procedures. This proposed rule is based on a
new cost model, and proposes enhanced service levels, more complete
funding of existing services, and specific cost allocation methods. A. Methodology To develop this proposed rule, USCIS convened its Workload and Fee
Projection Group. The Workload and Fee Projection Group is composed of
subject matter experts throughout USCIS and statistical experts from
the DHS Office of Immigration Statistics.
USCIS employed an Activity-Based Costing (ABC) methodology to
determine the full cost of immigration and naturalization benefit
applications and petitions, as well as biometric services, for which
fees are charged. This is an improved version of the same methodology
used in the FY 1998 Fee Review that is the basis for the current fee
structure. ABC is a business management tool that provides insight into
the relationship between inputs (costs) and outputs (products and
services) by quantifying how work is performed in an organization
(activities).
The ABC methodology uses a two-stage approach to assigning costs.
The first stage assigns costs to activities, and the second stage
assigns activity costs to products. For USCIS, the products are
decisions on the immigration and naturalization benefit applications
and petitions and the biometric services for which fees are charged. To
implement this two-stage approach, ABC requires four analytic steps:
Identifying and defining the activities involved in
processing immigration and naturalization benefit applications and
petitions and biometric services;
Examining budgetary records/execution plans and additional
resource requirements to identify the resources required to process
immigration and naturalization benefit applications and petitions and
biometric services;
Assigning these resources to the defined processing
activities; and
Assigning processing activity costs to defined immigration
and naturalization benefit applications and petitions and biometric
services for which a fee is charged.
USCIS used commercially available ABC software in computing the
immigration benefit application/petition and biometric fees. This
software application is designed to assign costs through activities to
final products (applications/petitions and biometric services). The
data entered into the software were tailored to USCIS specifications
using the preexisting software structure. This new software is vastly
improved over any models previously used by USCIS, particularly because
it can readily accept the most up-to-date information, as well as
``what-if'' scenarios, on a continual and real time basis for fee
review and cost management purposes. B. Assumptions As previously discussed, USCIS is assuming that it will no longer
collect separate fee revenues from certain interim benefits or K-3
petitions.
In this proposed rule, USCIS is assuming no revenues from certain
penalty fees. INA section 245(i), 8 U.S.C. 1255(i), permits certain
aliens who otherwise would be ineligible for adjustment of status to
lawful [[Page 4897]] permanent residence (primarily because of their unlawful presence) to
obtain such adjustment upon payment of a $1,000 penalty in addition to
the base application fee. Section 245(i) adjustment of status is
available, however, only to beneficiaries of immigrant petitions or
applications for labor certification filed on or before April 30, 2001.
As a result of this sunset provision, USCIS has seen a steady decline
in these revenues over the last several years ($66 million in FY 2001;
$37 million in FY 2003; and $21 million in FY 2006) and projects that
an insignificant amount of penalty fees will be collected by the time
the proposed fee structure is in place given the finite and declining
number of people affected by this legislation.
USCIS does not anticipate any significant new Temporary Protected
Status (TPS) populations at this time, although because of the nature
of TPS (including, for example, response to natural disaster) USCIS
cannot make such predictions with certainty. Given the statutory
requirement that TPS status be periodically reviewed and the reasonable
possibility of the termination of TPS designations for long-standing,
high volume countries, USCIS must build its budgets on the assumption
that it cannot rely on fee revenue from such programs to fund on-going
activities. INA section 244, 8 U.S.C. 1254a. For planning purposes and
without intending to forecast any particular policy assessments, USCIS
has assumed that the TPS Program for re-registrants of certain
nationalities will not continue, which will result in a substantial
decline of volumes for Form I-821 (Application for Temporary Protected
Status) and associated Form I-765 (Application for Employment
Authorization). This assumption eliminates a limited source of fee
receipts, but also reduces a larger amount of costs distributed across
all other application fees because the statutory fee ($50) does not
recover the full cost of processing TPS applications.
Finally, USCIS assumes the elimination of revenues associated with
the Form I-881, Nicaraguan Adjustment and Central American Relief Act--
Suspension of Deportation or Application Special Rule (NACARA 203). See
Pub. L. 105-100, sec. 203, 111 Stat. 2196 (Nov. 19, 1997), as amended
by Pub. L. 105-139, 111 Stat. 2644 (Dec. 2, 1997). This program
provided a benefit for a finite group of people, the vast majority of
whom are Guatemalans and Salvadorans who entered the United States
prior to 1991 and who had an asylum application pending by specified
deadlines in 1995 and 1996. Since enactment of NACARA, USCIS has
adjudicated approximately 170,000 applications for relief under NACARA
203. USCIS projects that by the end of FY 2007, nearly all qualifying
NACARA 203 applications will have been adjudicated, and that there will
be virtually no filings in FY 2008 and 2009. USCIS projects a decline
in the annual workload volume from approximately 22,509 applications in
FY 2006, to fewer than 200 in FY 2007.
In FY 2001, the USCIS Asylum Division hired approximately 70 term
employees to assist with the NACARA 203 workload. As the number of
pending NACARA 203 applications and individuals still eligible to apply
for this relief declined, the Asylum Division stopped back-filling term
positions as they became vacant in order gradually to reduce the
staffing level and budget commensurate with the decreasing workload.
Thus, through attrition of the term employees, USCIS has been able to
reach appropriate staffing levels for this workload. Cost adjustments
associated with the workload were incorporated in the FY 2007 Enacted
Budget.
USCIS also assumes no revenues from applications for T nonimmigrant
status, or self-petitions under the Violence Against Women Act of 1994
(VAWA), Public Law 103-322, tit. IV, subtit. G, 108 Stat. 1796, 1902,
1953 (Sept. 13, 1994), as reauthorized and amended, as this proposed
rule exempts applicants from paying the otherwise applicable fees for
these benefits. T nonimmigrant status is available to aliens, and
certain family members, who (in the case of principal aliens) are
victims of severe forms of trafficking in persons, are physically
present in the United States or a United States jurisdiction on account
of the trafficking, have (if over the age of 18) complied with any
reasonable requests for assistance to investigate or prosecute the
trafficking, and would suffer extreme hardship involving unusual or
severe harm if removed from the United States.
USCIS also assumes that the number of fee waiver requests will hold
steady from FY 2006 levels. Although USCIS anticipates an increase in
the number of fee waiver requests as a result of the proposed fee
structure, this increase will be offset by the new fee waiver policy
that limits fee waivers to certain situations as explained in section
XI of this preamble. The number of fee exemption applications will
increase over FY 2006 levels commensurate with new exemptions proposed
in this rule (e.g., certain initial applications for benefits for
humanitarian reasons--VAWA or T Visa). C. Defining Processing Activities In ABC, activities are the critical link to assigning costs to
products (decisions on applications/petitions and biometric services
for which the USCIS charges a fee). USCIS used the following
activities:
Inform the Public, involving receipt and response to
inquires through telephone calls, written correspondence, or walk-in
inquiries;
Capture Biometrics, involving electronic capture of
biometric (fingerprint, photograph, signature) information, and
background checks performed by the FBI;
Intake, involving mailroom operations, data capture and
collection, file assembly, fee receipting, and file room operations;
Conduct Interagency Border Inspection System (IBIS)
Checks, involving comparison of information on applicants, petitioners,
beneficiaries, derivatives and others against various Federal lookout
systems;
Review Records, involving acquisition and creation of
relevant files, consolidation of files, connection of returned evidence
with application or petition files, movement of files upon request, and
management of file location and archives;
Make Determination, involving actual adjudication of
applications and petitions, requests for additional evidence,
interviewing of applicants, consultation with supervisors or legal
counsel and researching applicable laws and decisions on complex
adjudications, and recordation of decision;
Fraud Detection and Prevention, involving detection,
combat, and deterrence of immigration and naturalization benefit fraud;
and,
Issue Document, involving production and distribution of
secure documents that identify the holder's immigration status or
employment authorization. D. Sources of Cost Information The first step in implementing an ABC methodology is to identify
the appropriate amount of FY 2008/2009 IEFA costs and assign these
costs to the defined processing activities. USCIS began with the FY
2007 Enacted Budget (less non-recurring costs), adjusted for inflation
for the FY 2008/2009 biennial period, and added resource requirements
as the best available source of information for determining the full
cost of immigration benefit applications/petitions and biometric
services. The FY 2007 Enacted Budget ($1,760,000,000) best represents
USCIS' [[Page 4898]] base resources since it is indicative of the costs incurred by USCIS
today and adjusts the base for inflation from FY 2006 levels. Inflation
is determined for this purpose by referring to Government-wide
standards discussed below in section IV.E.2. The additional resource
requirements are discussed below in section IV.E.3. E. Adjustments 1. Non-Recurring Costs
USCIS first eliminated any spending items in the FY 2007 Enacted
Budget that would not recur after FY 2007. Accordingly the base was
reduced by $8.5 million associated with the temporary expansion of
Application Support Centers for additional workload associated with a
temporary planned program for the recall of green cards issued before
1989 and thus lacking expiration dates and up-to-date security
features. After adjustment, the FY 2007 Enacted Budget has a base of
$1,751,500,000.
2. Inflation
USCIS then adjusted the FY 2007 IEFA Budget ($1,751,500,000)
enacted level for the FY 2008 and FY 2009 biennial period by pay
(Federal employee payroll and benefits) and non-pay (contracts,
utilities, rent, etc.) inflation factors used by OMB in implementing
OMB Circular A-76 (Performance of Commercial Activities), found at
http://www.whitehouse.gov/omb/circulars/a076/a76_incl_tech_correction.pdf
. The pay portion of the FY 2007 budget totals $727,600,000. The FY
2008/2009 blended pay inflation factor is 3.3%. This blended pay
inflation factor is calculated using 2.2% for FY 2008 plus half of 2.2%
(1.1%) for FY 2009. The pay inflation of $24,010,800 was then added to
the FY 2007 base, yielding a FY 2008/2009 pay base of $751,610,800.
The non-pay portion of the President's FY 2007 Budget was
$1,023,900,000. The blended non-pay inflation factor is 2.85%. The
blended non-pay inflation factor is calculated using 1.9% for FY 2008
plus half of 1.9% (0.95%) for FY 2009. The non-pay inflation of
$29,181,150 was then added to the FY 2007 base, yielding a FY 2008/2009
non-pay base of $1,053,081,150.
These pay and non-pay inflation projections of $53.192 million
yield a FY 2008/2009 base of $1,804,691,950.
3. Additional Resource Requirements
USCIS also identified $524.3 million in additional resource
requirements to fulfill legal requirements and policy decisions. These
additional resource requirements involve costs above and beyond what
was presented in the FY 2007 Enacted Budget, plus inflation for the FY
2008/2009 biennial period, that are necessary for USCIS to meet its
mission responsibilities. ``Additional Resource Requirements''
represent enhancements that are not currently funded in the FY 2007
Enacted Budget. These include: (1) Service Enhancements, (2) Security
and Integrity Enhancements, (3) Humanitarian Program Enhancements, and
(4) Infrastructure Enhancements.
a. Service Enhancements.
USCIS is enhancing service to provide efficient and customer-
oriented immigration and naturalization benefit and information
services. The following enhancements will enable USCIS to achieve and
maintain timely processing of immigration and naturalization benefits;
provide information resources and services to appropriate individuals
and entities; foster a customer-centered approach to service delivery;
and develop seamless, information technology (IT)--supported processes
that efficiently support immigration and naturalization benefits
adjudication and information sharing:
Enhance adjudications and support staff to maintain application and
petition processing times, officer training, additional capacity for
unanticipated surges in workload, and process Notices to Appear.
Additional funding is necessary to support a staffing model designed to
align resources with the need to prevent future backlogs and provide
for an efficient and effective workforce balance. This includes
Adjudication Officers and support staff (Supervisors, Clerks,
Immigration Information Officers, Records personnel, Administration
personnel, and Quality Assurance Analysts). Current funding and the
staffing model it supports are not sufficient to maintain prescribed
processing time requirements. USCIS' staffing model incorporates
additional requirements which include: (1) Additional time required of
Adjudication Officers to attend removal proceedings when appropriate;
(2) additional Adjudication Officer training to provide a 5% increase
in USCIS' investment in employee training in order to maintain a more
appropriate balance between the commitment to production and an ongoing
investment in things, such as training, designed to improve qualitative
performance; and (3) providing USCIS with a small surplus production
capacity that gives USCIS flexibility to adapt to temporary increases
in filings without those increases immediately affecting service levels
to all applicants. USCIS' staffing model also provides capacity to
improve processing times and service delivery over time rather than, at
best, perpetuating current levels. This additional resource requirement
addresses the need to reduce lengthy and costly waiting periods for
determination of benefits and the need for relevant training and
staffing to handle USCIS' substantial and complex workloads. This
enhancement requires 1,004 staff and $123.8 million.
Process Freedom of Information Act requests. The Freedom of
Information Act (FOIA), 5 U.S.C. 552, provides for the public
disclosure of governmental records unless an exemption applies. USCIS'
FOIA program has been historically understaffed, resulting in a growing
backlog that is currently 82,000 cases. USCIS determined that
approximately 82 positions (74 contractors and eight government staff)
would be needed in order to reduce the backlog by 50% the first year
and the remaining 50% during the second year. Also, USCIS determined
that a total of 146 staff is necessary to keep pace with the average
120,000 cases per year workload. To reach the required level of staff
to handle this continuing normal workload, an additional ten government
staff are permanently needed. To meet the requirements of the FOIA to
process 120,000 cases annually and eliminate existing while preventing
new backlogs, this enhancement requires 18 staff and $8.8 million.
Provide Change of Address (AR-11) data entry services. Aliens, who
enter the United States and are required to be registered, must notify
DHS of any change of address within ten days, using Form AR-11. INA
section 265, 8 U.S.C. 1305; 8 CFR 265.1. USCIS estimates that the costs
to support AR-11 data entry operations will total $1 million ($83,300
per month). Over 480,000 AR-11 forms will be processed in FY 2008
(268,000 nonimmigrant and 212,000 immigrant). Additionally, system
operations and maintenance costs are estimated to cost approximately
$200,000 per year. This enhancement requires $1.2 million.
Print and distribute guidebooks for new naturalized citizens. USCIS
currently prints and distributes a small quantity of two educational
resources: A civics study guide, designed for naturalization
applicants, that helps immigrants learn United States history and
civics in preparation for the naturalization test; and the ``Citizen's
Almanac,'' a document to be given to each new citizen at his or her
naturalization ceremony, which presents America's most cherished [[Page 4899]] founding documents, Presidential quotes on citizenship, and other
civics and history content. This enhancement requires approximately
$900,000 and would allow USCIS to produce a larger quantity of these
documents.
Enhance mail and file room support for the Administrative Appeals
Office. The Administrative Appeals Office (AAO) produces appellate
decisions that provide fair and legally supportable resolutions of
individual applications and petitions for immigration benefits. This
enhancement provides needed resources for the AAO's requirements for
clerical support for the office's mail and file room operations. In
addition to mail and file room support, contractors answer the
telephone, obtain electronic records, update information in electronic
databases, provide periodic reporting of receipts and completions, and
conduct workload analysis. This enhancement requires $129,000.
b. Security and Integrity Enhancements.
Consistent with the President's and the Secretary's priorities,
USCIS is enhancing the security and integrity of the immigration and
naturalization system. The following enhancements will enable USCIS to
ensure that benefits are granted only to eligible applicants and
petitioners; deter, detect, and pursue immigration and naturalization
benefits fraud; and identify and communicate immigration and
naturalization-related information to partners in support of DHS
strategic goals:
Establish a second, full-service card production facility and fully
fund card production workload. The Federal Information Security
Management Act (FISMA), Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002)
(40 U.S.C. 11331; 44 U.S.C. 101 note, 3541-3549), and implementing
directives require compliance with National Institute of Standards and
Technology principles for critical systems for contingency planning. To
meet these standards, USCIS must establish a second full-service card
production site. The second facility will support day-to-day production
as well as be available in the event of catastrophic failure. Finally,
additional funding is included to fully fund card production
requirements based on workload projections. To meet these requirements,
USCIS is proposing to add four staff and $32.4 million.
Enhance fraud prevention and detection efforts. To meet its
mandated responsibilities of enhancing fraud prevention and detection
efforts, USCIS created the FDNS to implement, direct, and oversee anti-
fraud and detection operations throughout USCIS. By focusing efforts on
such initiatives as Benefit Fraud Assessments, FDNS is better able to
acquire the information needed to determine the type, causes, and
amount of fraud that exist, so as to focus efforts accordingly. FDNS
has developed and implemented a joint anti-fraud strategy with
Immigration and Customs Enforcement (ICE) for the referral of all
suspected fraud cases. Due to the volume of referrals, only those cases
meeting the ICE threshold (large conspiracies, multi-party, etc.) are
accepted for criminal investigation. Since the majority of referrals do
not meet the threshold, they are returned to FDNS for initiation of an
administrative inquiry/investigation. Additionally, FDNS identifies
systemic vulnerabilities and other weaknesses that could compromise the
integrity of the legal immigration system by reviewing existing
regulations, policies and procedures and offering corrective remedies
where deficiencies exist. This enhancement requires 170 staff and $31.3
million.
Enhance the delivery of secure documents. USCIS currently delivers
its secure documents (Permanent Resident Cards, Employment
Authorization Documents and travel documents) through the United States
Postal Service (USPS) first class mail. There is no process in place
that enables USCIS to track their delivery and ensure that these
documents are delivered to the proper recipient. Some beneficiaries
claim not to have received their documents in the mail to avoid paying
document replacement fees. USCIS and the USPS have partnered to develop
and implement a process wherein the documents would be delivered via
USPS priority mail (two to three day delivery) with delivery
confirmation. The additional funding will enable USCIS to track
delivery of each document and to respond to queries from applicants
regarding the status of document delivery. This enhancement requires
$31.6 million.
Pay increased costs due to the FBI for background checks. USCIS
pays the FBI for fingerprint and name checks performed on certain
immigration and naturalization benefit applications. USCIS needs the
additional funds to align with the projected filing increases for Forms
N-400 and I-90, less the projected decrease in Form I-485. USCIS will
also be expanding the biometric service to applications for travel
documents and petitions to remove conditions of residence (Forms I-131
and I-751). Finally, USCIS is providing additional funds to the FBI for
name check costs to enhance services. This enhancement requires $12.4
million.
Enhance national security systems and processes. Funding is
necessary to continue the enhancement of the FDNS Data System and other
supporting systems. The development effort will enable FDNS to
creatively leverage new technology to enhance the ability to centrally
direct and oversee the resolution of background check hits pertaining
to national security, egregious public safety, and fraud
investigations. These data systems will be used by all FDNS employees
and will assist in the adjudication of all cases with national security
and fraud implications. This enhancement is also needed to provide for
major enhancements and improvements to USCIS'/FDNS national security
background check process (i.e. software, systems development and change
management and training efforts). All systems efforts will be
coordinated with the USCIS Transformation Office to ensure system
integration. Additionally, these systems will facilitate FDNS in its
data sharing efforts with law enforcement agencies and other authorized
government offices. This enhancement requires $4 million.
Enhance Internal Security and Investigative Operations. Internal
Security and Investigative Operations includes the conduct of
investigations of allegations of misconduct for approximately 15,000
USCIS federal and contract employees located throughout the United
States as well as many located overseas. Additionally, this program is
charged with: preparation and delivery of relevant training to all
USCIS employees; specific training for and oversight of selected
collateral duty ``management inquiry representatives'' (or fact-
finders); the conduct of and follow-up to program and office
inspections geared toward the integrity of personnel, products and
processes; coordination of efforts with companion investigative
authorities; material contribution to the USCIS counter-intelligence
program; and preparation of general and specific reports to USCIS
executives. There are presently only a limited number of investigators
for these activities. To keep pace with demand, to ensure professional
and timely investigative activity and result, and to ensure
proportional capability growth, USCIS requires an additional 60 field-
based and five headquarters-based investigative staff resulting in a
total of 78 investigative personnel. This enhancement requires 65 staff
and $15 million. [[Page 4900]] Establish an Administrative Site Inspection Program. Funds are
necessary to support an administrative site inspection program aimed at
deterring fraud when USCIS has determined a systematic vulnerability.
This initiative will enable the USCIS to secure contract support to
conduct preliminary site inspections that will serve as an enhancement
to the existing FDNS personnel's abilities to conduct administrative
investigations and enable the FDNS staff officers to focus on high risk
cases. Inspections have been identified as an invaluable tool in
detecting fraud. This and other USCIS anti-fraud initiatives will help
restore integrity to this Nation's legal immigration system. This
enhancement requires $8 million.
Enhance Protective Security Operations. USCIS has or operates
within approximately 281 facilities, 250 of which are located within
the United States and 31 located overseas. Approximately 15,000 federal
and contract employees work within and are associated with these
facilities. There are presently only a limited number of Field Security
Officers available to provide the full range of security services to
protect USCIS operations, products, personnel and facilities. Current
shortfalls in this critical activity increase the risks aimed at
existing USCIS personnel, facilities, products and mission success.
This enhancement requires 36 staff and $8.3 million.
Enhance existing card production program. The USCIS document
production facility utilizes contractor support for its document
production activities. The prime contractor on site is responsible for
securing maintenance contracts on the equipment to ensure that all
equipment runs optimally, without interruptions. Many companies will
not prorate their maintenance contracts and want to have them funded on
an annual basis, which becomes problematic when USCIS does not issue a
full year of funding to its production contractor. Current funding
mechanisms do not allow for contractor support during the full period
of performance reflected in the contract, and result in inefficient use
of both program office contracting officer technical representative
time, and contract officer and administration time, as duplicative work
needs to be performed each time additional funds are placed on the
contract. The additional base requirement will enable USCIS to fund the
production support contract for the full 12-month period of
performance. By doing this, USCIS can ensure that secure document
production can continue without disruptions associated with continuing
resolutions and interim funding allocations that may develop at the
beginning of new fiscal years. This enhancement requires $4.4 million.
Enhance Emergency Preparedness Operations; Establish Crisis
Management and Information Security Operations; and Enhance Technology
Security Operations. USCIS needs additional funds to prepare to
continue essential operations and to recover from an event or incident
and return to full operations. Funds are required to conduct Continuity
of Operations (COOP) exercises and successful participation in and
contribution to government COOP exercises. Continued refinement of
training and presentation of that training to various audiences and at
various locations is critical. Additional funding is also necessary to
operate a certified full-time, real-time mission coordination and
support capability for national security information control and
communications throughout USCIS and with DHS and other agencies. This
includes sustained operation and security of the Crisis Communications
and Coordination Center on a real-time 24/7 basis to monitor USCIS
operations throughout the world and to permit secure communications
throughout the Federal government on behalf of USCIS executive
leadership. Finally, additional funding is necessary, in conjunction
with the USCIS Office of Information Technology, to review all USCIS IT
efforts with specific focus on the security aspects of those efforts
and systems, including expert forensic IT analyses related to internal
investigations. Internal use of the data, and use of the data by
external authorities, especially when required to address emergency
incident situations, require an ongoing and certain commitment to the
security features of its IT infrastructure and the data therein. This
enhancement requires 14 staff and $3.0 million.
Enhance Personnel Security Operations. Additional funding is
necessary to provide proper and timely security clearances for USCIS
and contract employees; review of and contributions to USCIS
acquisitions for goods and services; and coordination with other
agencies and authorities to assure maintenance of current, accurate and
complete personnel security information. This enhancement requires ten
staff and $1.6 million.
c. Humanitarian Program Enhancements.
USCIS supports the United States' humanitarian commitments. This
support includes fully funding the Cuban Haitian Entrant Program
(CHEP). CHEP assists the resettlement of Cubans and Haitians who are
irregular arrivals or paroled into the United States, including those
who are paroled directly from Cuba under the Cuban Special Migration
Program. In FY 2006, two non-government grant recipients, Church World
Service and the United States Conference of Catholic Bishops, provided
resettlement services. The actual number of migrants served each year
is unpredictable, in part because many arrive irregularly. This
enhancement requires $14 million.
d. Infrastructure Enhancements.
USCIS is strengthening the infrastructure necessary to achieve
USCIS' mission. The following enhancements will enable USCIS to
strengthen key management processes, systems, and administrative
support activities, including information technology infrastructure;
enhance the organization's ability to support the mission in an
environment of fluctuating workloads and new external mandates; and
manage financial resources strategically, including revenue,
expenditures, and capital investments:
Upgrade and maintain the USCIS information technology environment.
Additional funds are necessary to upgrade and maintain the USCIS
information technology environment, which includes several programs in
support of a national security-based immigration process that is more
effective and customer focused. One of the programs will provide
necessary technology upgrades to the current USCIS enterprise legacy IT
systems so that these comply with OMB, GAO, DHS, and other Federal
regulations, law, and guidelines. Decommissioning of the legacy
environment systems is a lengthy process and, in the meantime, these
systems are required to be upgraded to meet minimum standards in the
areas of IT security and privacy.
Another program focuses on upgrading and maintaining the USCIS IT
operating environment so that it can sustain continued operations,
reduce IT security risks and information sharing limitations through
hardware and software standardization, and maintain USCIS' ability to
process cases and support Federal enforcement organizations. By having
a more reliable IT environment, USCIS staff can better support
applicants and petitioners.
The third program provides USCIS with the capability to implement
quick turnaround IT solutions as well as feature/functional
enhancements to the enterprise legacy IT environment to address time
critical needs and legislative changes that occur on a [[Page 4901]] frequent and on-going basis. Funds are also necessary for other
activities to provide additional trained and experienced IT Government
staff, governance capabilities, IT security, continuity of operations
planning and disaster recovery, and other IT oversight capabilities.
This enhancement requires 88 staff and $124.3 million.
Rent and lease acquisition resources. Rental payments to the
General Services Administration for USCIS facilities are currently
budgeted at $153 million, but are projected to increase to $168
million. Thus, additional resources are required to fund projected FY
2008/FY 2009 payments. In addition, the Lease Acquisition Program (LAP)
is the USCIS' Real Property Capital Assets Investment Plan. This
program will improve workplaces to better meet USCIS mission and goals
and better utilize real property assets. Current USCIS real property
inventory includes 188 facility leases requiring sustainment from year
to year. Most leases have a 10-year term and must be either renewed or
replaced at the end of the term. Recent experience shows that 11
facility projects are required each year, either as a replacement for a
non-renewable lease or for a renewal in the same facility but with
additional space. USCIS currently has 37 leases that have already or
will expire by FY 2008. The LAP currently is funded for $16.8 million
based on the lease expiration schedule; the lease funding requirement
is $34.9 million. The additional funding allows USCIS to increase its
investment in facilities, so that its local offices can meet
appropriate standards, and applicants/petitioners and others coming to
those offices can be reasonably comfortable. This enhancement requires
$33.1 million.
Enhance the training program for all USCIS employees to foster
organizational individual achievement by promoting continuous learning.
The additional funds will enable USCIS to expand both mission support
and professional development modules available to all USCIS employees
through online technology. The USCIS Learning Management System
provides mandatory training modules, mission support modules, and more
than 2000 commercial, Web-based, information technology, business, and
leadership courses for personal and professional development. In
addition, USCIS requires resources to plan and develop a comprehensive
and continuing orientation plan for all USCIS employees. This program
will serve as the primary vehicle for introductory, foundational and
continuous information about DHS and USCIS leadership, mission, core
values, vision, organizational structure and policies. It will also
provide functional information about USCIS' business processes and
practices, standard operating procedures and the cultural environment
of a high-performance organization that is an employer of choice. This
program will serve as a cornerstone for promoting employee career
development, leadership development, and succession management. The
project will also include the development of web-based orientation
modules.
Finally, funds will be used to support an Enterprise Development
Program that will provide USCIS government employees with an Individual
Learning Account (ILA), which includes annual resources and time set
aside exclusively for training. This program is seen as the primary
means for employees to increase their knowledge, skill and capacity to
perform their work and build careers consistent with USCIS goals for
performance excellence. Such a program is designed to enhance
critically needed training while taking advantage of USCIS
transformational initiatives including the availability of new
technologies and processes. This enhancement requires 25 staff and
$41.2 million.
Enhance resources for the Office of Chief Counsel. Additional
resources will be focused on filling the legal needs of USCIS' field
offices, both district and regional, where most areas do not currently
have any attorney on site. The provision of additional attorneys will
allow USCIS to ensure that there is at least one attorney available in
each district. All types of litigation continue to increase, including
mandamus actions when USCIS is perceived to not respond to applications
in a timely manner, employment, acquisition protests, and claims.
Furthermore, there is a critical need to advise adjudicators and
investigators on issues affecting national security concerns and
citizenship qualifications. Attorney responsibilities include providing
on-site legal advice on immigration benefits-related matters,
adjudications involving issues of national security, visa appeal
briefs, reviewing Notices to Appear, and providing litigation support
to the Department of Justice's litigating divisions and United States
Attorneys' Offices. Additional attorneys will also provide training to
USCIS personnel on issues involving immigration related adjudications,
inadmissibility and deportability. This enhancement requires 30 staff
and $7.4 million.
Transfer records to the National Archives and Records
Administration. The National Archives and Records Administration (NARA)
has determined, pursuant to 44 U.S.C. 2905, that immigration records
should become permanent records of the United States. Therefore, all
immigration records that become eligible for retirement based upon the
year of birth will be turned over in five-year ``collections.'' The
first collection is to include records relating to persons born in 1907
or earlier. All records transferred to NARA must be inventoried. Due to
the age of records and data integrity, the records must be audited and
systems must be updated before the transfer. Therefore, $3.4 million is
needed annually to audit the immigration records in preparation for the
transfer of ownership of over 25 million records to the NARA to become
permanent records. USCIS will begin transfer of all immigration records
with 1907 year of birth and earlier beginning in 2008. This initiative
will span a period of ten years. Future records will be transferred to
NARA as they become eligible. This mandatory cost totals $3.4 million.
Fully fund the Human Resources and Occupational Safety and Health
Service Level Agreements/Programs. Based on workload trends over the
past three years, USCIS requires an additional $3 million that will
allow the service provider, the Bureau of Customs and Border Protection
(CBP), to provide additional capacity to handle human resources and
occupational safety and health requirements. In addition, an additional
$150,000 (fully-burdened costs) will allow USCIS to meet the
requirement to provide every supervisor with occupational safety and
health training. This enhancement requires $3.2 million.
Conduct policy evaluation and research. The Homeland Security Act
of 2002 (HSA), Public Law 107-296, sec. 451, 116 Stat. 2135, 2195 (Nov.
25, 2002), requires that USCIS conduct policy research to develop sound
information to inform and guide immigration program and policy
development. In addition, the Government Performance Results Act of
1993 (GPRA), Pub. L. 103-62, 107 Stat. 285 (Aug. 3, 2003) (codified in
various sections of titles 5 and 31 U.S.C.), requires agencies to
evaluate pilot and experimental programs that are designed to improve
mission delivery, including efficiency, national security and customer
service, before implementing such programs on a large scale. USCIS
requires funding to conduct targeted research and evaluation to develop
and assess policy options affecting national immigration programs and
policies and to assess [[Page 4902]] USCIS pilot programs. The mandated research and evaluation efforts will
ensure prudent use of USCIS resources, enhanced information to inform
policy options and impact assessment, and improved performance
consistent with the stated GPRA and HSA requirements. This enhancement
requires $3.1 million.
Enhance internal controls, build a data warehouse for performance
information, enhance budget staff, conduct competitive sourcing
reviews, and provide additional financial management resources to
evaluate and analyze service level agreements under the auspices of the
Office of Chief Financial Officer. In an effort to strengthen USCIS'
planning and financial management functions, during FY 2006 USCIS
created an Office of the Chief Financial Officer (CFO). The
strengthened CFO function within USCIS ensures that reasonable internal
controls exist within USCIS to safeguard assets from waste, fraud and
abuse. In order to execute these duties, additional resources are
necessary to review organizational program offices. The reviews require
highly skilled personnel to assess internal USCIS components. The
assessments identify vulnerabilities in program regulations, standard
operating procedures, and work processes. This element of review is
imperative as self-assessment is key to eliminating internal fraud,
waste and abuse, as well as identifying inefficiencies and recommending
corrective actions. In addition, funds sought will be used for
additional staff to maintain the financial health and stability of the
USCIS.
Finally, DHS mandated that USCIS, ICE and CBP establish service
level agreements covering several core administrative support areas.
While these service level agreements have been established, USCIS needs
to strengthen oversight of the services performed and received. Several
of the key factors that justify service level agreements, such as cost
efficiencies, consistency in operational processing, and effective
cross-agency communication require better monitoring. Funds will also
be used for staff to evaluate and analyze service level agreements to
gauge the benefits. Currently, performance evaluations/surveys are not
initiated to ensure accountability and effectiveness or efficiency.
This enhancement requires 16 staff and $3.1 million.
Establish a National Recruitment Program. Since its inception,
USCIS has not had the resources to establish a National Recruitment
Program (NRP). According to the Office of Personnel Management, the
recruitment process for federal employers holds a number of challenges,
one of which is the ability to replace an aging workforce. Over the
next five years, over half of USCIS' workforce will be eligible for
retirement. USCIS must be positioned to compete for talent in light of
the retirement wave. The primary mission of the NRP will be to help
management attract the right talent in order to ensure the employment
of a high-quality and diverse workforce making USCIS an employer of
choice. This enhancement requires three staff and $3.0 million.
Enhance procurement operations. The current procurement workload
requires additional contract specialists. Currently, USCIS has only ten
warranted contract specialists averaging 171 actions annually. USCIS
procurement staff obligated approximately $605 million in new
contractual actions in FY 2005, in addition to administering $4 billion
in ongoing contracts. Also, the USCIS Office of Contracting recently
assumed responsibility for the USCIS portion of several large contracts
formerly administered by ICE. Continued understaffing poses significant
internal control issues and increases the risk that limited contract
dollars will not be used as effectively as possible. This request will
double the size of USCIS' Office of Procurement. This enhancement
requires ten staff and $1.6 million.
4. Summary
Table 4 summarizes the calculation of the FY 2008 / 2009 costs at
the $2.329 billion (rounded to the nearest million). Table 4.--FY 2008/2009 IEFA Costs
------------------------------------------------------------------------ ------------------------------------------------------------------------
FY 2007 IEFA Budget.................................... $1,760,000
Less: Non-Recurring Costs.............................. (8,500)
FY 2007 Adjusted IEFA Budget........................... 1,751,500
Plus: Inflation........................................ 53,192
Plus: Additional Resource Requirements................. 524,317
----------------
Total.............................................. 2,329,000
------------------------------------------------------------------------ F. Determining Application and Petition Surcharge Costs Asylum/Refugee and fee/exempt costs are referred to as
``surcharges'' since they are not directly related to the processing
activity costs of a particular immigration benefit. These costs must be
ascertained and then applied to all fee-paying applications.
1. Asylum and Refugee Costs
Congress has authorized USCIS to set its immigration benefit
application and petition fees at a level that recovers sufficient
revenue to provide asylum and refugee services. INA section 286(m), 8
U.S.C. 1356(m). USCIS determined the asylum and refugee surcharge costs
to be $191 million or 8% (including $14 million for the Cuban Haitian
Entrant Program as identified in the ``Additional Resource
Requirements'' section in part IV.E) of the FY 2008/2009 IEFA Costs.
2. Fee Waiver/Exemption Costs
Congress has authorized USCIS to set its immigration benefit
application and petition fees at a level that recovers sufficient
revenue to provide services to other immigrants at no charge. INA
section 286(m), 8 U.S.C. 1356(m). Eligible applicants and petitioners
are granted fee waivers if they can establish that they are unable to
pay the fee. In addition, asylum and refugee applicants are exempt from
paying the fee for certain immigration benefit applications and
petitions. This amount also includes fees received from applicants
residing in the Virgin Islands of the United States and in Guam, since
these fees are paid over to the treasuries of the Virgin Islands and
Guam per section 286(m) of the INA, 8 U.S.C. 1356(m). USCIS determined
the full costs of fee waivers and exemptions by subtracting the
workload volume from the fee-paying volume of each application/
petition, and multiplying that amount by the proposed fee. USCIS
determined the fee waiver/exempt costs to be $150 million or 6% of the
FY 2008/2009 IEFA Costs. G. FY 2008/2009 Processing Activity Costs The amount of immigration and naturalization benefit application
and petition and biometric costs that were [[Page 4903]] assigned to processing activities was determined by adjusting the FY
2008/2009 IEFA costs by the costs attributable to the asylum/refugee
and fee waiver/exemption services.
Table 5 summarizes the total of $1.988 billion assigned to
processing activities (dollars in thousands): Table 5.--FY 2008/2009 Processing Activity Costs
------------------------------------------------------------------------ ------------------------------------------------------------------------
FY 2008/2009 IEFA Costs................................ $2,329,000
Less: Asylum and Refugee Services...................... (191,000)
Less: Fee Waiver and Exempt Services................... (150,000)
----------------
Total.............................................. 1,988,000
------------------------------------------------------------------------ V. Volumes USCIS used two types of volume data in the fee review. The first is
workload volume (measured in terms of the number of incoming
applications and petitions) that was used as one of the main cost
drivers for assigning processing activity costs to immigration and
naturalization benefit applications and petitions (explained further in
section VII.B). The other is fee-paying volume data that was used as
the denominator in the equation to calculate the immigration and
naturalization benefit application and petition and biometric service
unit costs. A. Biometric Services Projected volume decreases from the FY 2006 levels include a
projected decline of 304,086 in associated biometric services for TPS.
As mentioned previously, USCIS will not assume that the TPS Program for
re-registrants of certain nationalities will continue. USCIS also
projects a workload volume decline of 22,509 associated with the
conclusion of NACARA filings. In addition, USCIS projects a decrease of
119,075 in corresponding biometric service volume given the decrease in
Form I-90 (130,124), less the increases in Form N-400 (4,074) and Form
I-485 (6,975). This issue is explained in the next section. These
decreases are offset by an increase in biometric services of 282,000
since USCIS will be expanding biometric services to the Form I-131
(Refugee Travel Document, Reentry Permit only) and Form I-751 (Petition
to Remove the Conditions on Residence) in FY 2007. This was not
projected in the FY 2007 IEFA budget. The overall projected decrease in
biometric services from FY 2006 levels is 163,670. Given a workload
volume of 3,318,000 in FY 2006, the projected FY 2008/2009 workload
volume is 3,154,330. Also, given the fee-paying volume of 2,359,482 in
FY 2006, the projected FY 2008/2009 fee-paying volume is 2,195,812. B. Immigration Benefit Applications and Petitions As previously stated, this rule proposes to eliminate USCIS'
operational dependency on certain interim benefit fees. Interim
benefits are associated with the Form I-765, Application for Employment
Authorization, and Form I-131, Application for Travel Document (Advance
Parole only), that are issued to individuals on request while their
applications for adjustment of status to permanent residence (Form I-
485, Application to Register Permanent Status or Adjust Status) are
pending. USCIS' analysis of interim benefits associated with a pending
Form I-485 identified a total fee-paying volume decrease of 517,000
applications (317,000 Form I-765 and 200,000 Form I-131). This proposed
rule eliminates separate fees for interim benefits for applicants for
adjustment of status to permanent residence.
As previously mentioned, this proposed rule eliminates K-3 (certain
spouses of United States citizens) petition fees associated with Form
I-129F. USCIS' analysis of K-3 petitions identifies a volume decrease
of 20,997 in the total number of fee-paid Form I-129F as a result of
this change.
USCIS also will not assume that TPS for re-registrants of certain
nationalities will continue, resulting in an assumed decline of volumes
for Form I-821 (Application for Temporary Protected Status) and Form I-
765. As such, USCIS projects a decrease in volume of 304,086 for each
of these benefits, with the fiscal effect adjusted by the fact that
there is no fee charged for the Form I-821 for re-registrants.
USCIS projects that there will be no filings for Form I-881,
Nicaraguan Adjustment and Central American Relief Act--Suspension of
Deportation or Application Special Rule (NACARA 203) in FY 2008 and
2009, for a workload volume decline of 22,509 (from 22,509 in FY 2006
to zero). The fee-paying volume decline is 22,487.
Projected volume increases are the product of projections from the
USCIS Workload and Fee Projection Group--similar to the FY 1998 Fee
Review. USCIS leveraged a time series model based on a regression
analysis over the last 15 years, with the most recent data trends given
the greatest weight. USCIS then adjusted this data based on known or
projected program, policy, or other factors that would impact the
analysis. The Workload and Fee Projection Group mainly focused on the
applications and petitions that comprise the majority of the workload.
For the remainder of the workload, USCIS used FY 2006 actual volumes
for the FY 2008/2009 biennial period. The Workload and Fee Projection
Group did not foresee a reason to change these figures from FY 2006
levels since this was a fairly typical year.
The Workload and Fee Projection Group projected an overall decrease
of 391,824 in immigration benefit application and petition volumes over
FY 2006 levels due to projected decreases in Form I-129 (17,955), Form
I-130 (3,189), Form I-131 (32,880), Form I-140 (5,158), Form I-539
(13,531), Form I-687 (workload of 37,778; fee-paying of 36,756), Form
I-765 (162,583), Form I-90 (130,124), less increases projected in the
Form I-485 (6,975), Form N-400 (4,074), and other form types (325).
Finally, USCIS is proposing to exempt applicants from paying a fee
from certain initial applications for benefits for humanitarian
reasons. This includes all applicants filing Form I-914 (124 fee-paying
applications), Application for T Nonimmigrant Status, and Form I-360,
Petition for Amerasian, Widow(er), or Special Immigrant, who seek
immigrant classification under VAWA (8,813 fee-paying applications).
These applications have in common the fact that they are filed by
victims of crime who are often in an extremely vulnerable position.
Many of these applicants are already in a position to qualify for an
individual fee waiver, and waiving fees more generally for these
relatively low-volume applications will save the adjudication time
necessary to consider fee waivers individually, and will serve the
public interest without undue cost to other applicants as a [[Page 4904]] result. The costs associated with these exemptions increase the
surcharge for fee exemptions, and are added to all applications in
accordance with the methodology identified in section VIII.
In sum, the overall projected workload decrease in immigration
benefit applications and petitions from FY 2006 levels is 414,317.
Given a total workload volume of 5,991,362 in FY 2006, the projected FY
2008/2009 total workload volume is 5,577,045. The overall fee-paying
decrease is 960,204. Given the total fee-paying volume of 5,702,571 in
FY 2006, the projected FY 2008/2009 total fee-paying volume is
4,742,367 (includes additional fee exemptions for humanitarian reasons
outlined above).
USCIS' projections show a decline in the total volume of
applications. However, staffing requirements to handle this work
increase relative to current levels because the current staffing level
is based on what USCIS can afford, not what is required to meet
acceptable performance standards. That situation contributed to large
backlogs in the past. As stated previously, USCIS was only able to
catch up temporarily through the infusion of a large temporary subsidy
of appropriated dollars that allowed USCIS to temporarily acquire
sufficient capacity to handle the work.
Table 6 summarizes the FY 2006 actual workload volumes, the
projected FY 2008/2009 biennial workload volumes, and the difference by
application/petition. Table 6.--Workload Volumes by Application/Petition
----------------------------------------------------------------------------------------------------------------
FY 2006 FY 2008/2009
actual projected
Form No. workload workload Difference
volume volume
----------------------------------------------------------------------------------------------------------------
I-90........................................................... 682,149 552,025 (130,124)
I-102.......................................................... 24,139 24,035 (104)
I-129.......................................................... 417,955 400,000 (17,955)
I-129F......................................................... 66,177 66,177 ...............
I-130.......................................................... 747,012 743,823 (3,189)
I-131.......................................................... 371,880 339,000 (32,880)
I-140.......................................................... 140,158 135,000 (5,158)
Waiver Applications............................................ 45,459 45,459 ...............
Form I-290B/Motions............................................ 47,645 47,645 ...............
I-360.......................................................... 16,086 16,000 (86)
I-485.......................................................... 606,425 613,400 6,975
I-526.......................................................... 600 600 ...............
I-539.......................................................... 233,531 220,000 (13,531)
I-600/600A..................................................... 29,500 29,601 101
I-687.......................................................... 38,278 500 (37,778)
I-690.......................................................... 3,293 3,293 ...............
I-694.......................................................... 3,696 3,696 ...............
I-695.......................................................... 29 56 27
I-698.......................................................... 831 494 (337)
I-751.......................................................... 143,360 143,000 (360)
I-765.......................................................... 1,462,583 1,300,000 (162,583)
I-817.......................................................... 5,762 5,762 ...............
I-824.......................................................... 40,105 40,785 680
I-829.......................................................... 88 88 ...............
I-881.......................................................... 22,509 .............. (22,509)
I-905.......................................................... 2 10 8
I-914.......................................................... 403 400 (3)
N-300.......................................................... 91 100 9
N-336.......................................................... 13,692 14,000 308
N-400.......................................................... 730,642 734,716 4,074
N-470.......................................................... 669 669 ...............
N-565.......................................................... 31,902 32,000 98
N-600/600K..................................................... 64,711 64,711 ...............
------------------------------------------------
Total...................................................... 5,991,362 5,577,045 (414,317)
---------------------------------------------------------------------------------------------------------------- To calculate unit costs, USCIS identified the number of fee-paying
volumes for each application/petition and biometric fee by dividing the
actual fee revenues received in FY 2006 by the FY 2006 fee. USCIS then
adjusted this number to reflect the filing trends in FY 2007, which is
reflected in Table 7. Table 7.--Fee-Paying Volumes by Application/Petition
----------------------------------------------------------------------------------------------------------------
FY 2006 FY 2008/2009
Form No. actual fee- Adjustment projected fee-
paying volume paying volume
----------------------------------------------------------------------------------------------------------------
I-90........................................................... 640,529 (130,124) 510,405
I-102.......................................................... 22,486 (104) 22,382
I-129.......................................................... 417,712 (17,955) 399,757
I-129F......................................................... 65,728 (20,997) 44,731 [[Page 4905]]
I-130.......................................................... 743,741 (3,189) 740,552
I-131.......................................................... 365,048 (232,880) 132,168
I-140.......................................................... 134,901 (5,158) 129,743
Waiver Applications............................................ 45,459 ............... 45,459
I-290B/Motions................................................. 47,645 ............... 47,645
I-360.......................................................... 13,671 (8,899) 4,772
I-485.......................................................... 548,035 6,975 555,010
I-526.......................................................... 600 ............... 600
I-539.......................................................... 229,160 (13,531) 215,629
I-600/600A..................................................... 29,159 101 29,260
I-687.......................................................... 37,256 (36,756) 500
I-690.......................................................... 3,293 ............... 3,293
I-694.......................................................... 3,696 ............... 3,696
I-695.......................................................... 25 27 52
I-698.......................................................... 668 (337) 331
I-751.......................................................... 130,529 (360) 130,169
I-765.......................................................... 1,339,126 (479,583) 859,543
I-817.......................................................... 5,762 ............... 5,762
I-824.......................................................... 39,551 680 40,231
I-829.......................................................... 45 ............... 45
I-881.......................................................... 22,487 (22,487) ..............
I-905.......................................................... 2 8 10
I-914.......................................................... 124 (124) ..............
N-300.......................................................... 83 9 92
N-336.......................................................... 13,640 308 13,948
N-400.......................................................... 706,387 4,074 710,461
N-470.......................................................... 669 ............... 669
N-565.......................................................... 30,643 98 30,741
N-600/600K..................................................... 64,711 ............... 64,711
------------------------------------------------
Total...................................................... 5,702,571 (960,204) 4,742,367
----------------------------------------------------------------------------------------------------------------
VI. Assigning Costs to Processing Activities USCIS uses a detailed operating plan to manage its resources
effectively. The plan identifies the payroll (pay and benefits, awards,
overtime) and non-payroll costs (general expenses, information
technology, contracts) associated with each USCIS office, as well as
costs that are managed and funded centrally such as rent, information
technology operations and maintenance, and service level agreements.
The operating plan is a vast improvement over the cost data used in the
FY 1998 Fee Review, where the information was only available at very
high levels conglomerating various functions.
Each USCIS office was classified as ``overhead'' versus ``direct.''
This classification was performed since direct cost items can be
directly ``assigned'' to activities based on a relationship that is
readily identifiable between the cost item and a processing activity.
For example, an Adjudications Officer performs work under the ``Make
Determination'' activity. Therefore, the costs associated with an
Adjudications Officer are directly assigned to this activity. Overhead
cost items are ``allocated'' to activities since no direct relationship
can be developed between the resource item and the activity. For
example, there is no direct relationship between the Office of
Planning, Budget, and Finance and the ``Make Determination'' activity,
and as such, a portion of the costs from this office were allocated to
the ``Make Determination'' activity based on number of government
staff, as was the case with most overhead cost items. A. Overhead Costs USCIS defined overhead as ``the ongoing administrative expenses of
a business which cannot be attributed to any specific business
activity, but are still necessary for the business to function.''
Examples include the majority of Headquarters functions such as the
Office of Planning, Budget, and Finance, the Office of Information
Technology, the Office of Chief Counsel, the Congressional Relations
Office, and the Office of Policy and Strategy. These offices are
further identified in section III.D under the ``Administration''
program. Field functions classified as overhead include support
positions such as management, administration, analysts and information
technology staff. Centrally managed costs such as rent, information
technology operations and maintenance, and service level agreements
were also classified as overhead.
Total overhead costs were identified to be $924 million, of which
$183 million is payroll (20%) and $741 million is non-payroll (80%).
Total overhead costs represent 39% of the FY 2008/2009 IEFA costs. This
includes $41.2 million to enhance the training program, $33.1 million
for rent and lease acquisition resources, and $124.3 million to upgrade
and maintain the USCIS information technology environment as identified
in section IV.E.3. USCIS assessed a total of $843 million ($924 million
less $81 million associated with the asylum and refugee program) in
overhead costs as a flat percentage of each application/petition and
biometric processing activity costs. While the amount of the overhead
will vary between processing activities, the percentage of cost is
constant. B. Direct Costs USCIS reviewed and analyzed the FY 2008/2009 IEFA costs in detail
to determine which direct items could be [[Page 4906]] directly assigned to the immigration benefit application/petition and
biometric service processing activities. The following depicts the
major direct cost items assigned to the processing activities:
Inform the Public. Of the $1.988 billion assigned to immigration
benefit application/petition and biometric service processing
activities, $228 million or 11% is assigned directly to the ``Inform
the Public'' activity. ``Inform the Public'' includes $43 million for
the National Customer Service Center contract and support activities to
provide nationwide assistance by telephone to individuals calling from
within the United States about immigration services and benefits. Most
of the $80 million in direct payroll costs (including $9.5 million of
the $123.8 million to enhance adjudications and support staff as
identified in section IV.E.3) are for IIOs who assist persons with
information necessary to complete required form types and explain the
administrative procedures and average processing times for each
application/petition.
Intake. Of the $1.988 billion assigned to immigration benefit
application/petition and biometric service processing activities, $86
million or 4% is assigned directly to the ``Intake'' activity.
``Intake'' includes $84 million for activities related to the mail,
filing, data entry, and fee receipting at USCIS Service Centers. It
also includes $2 million for the lockbox, which is an agent of the
Department of Treasury that performs the electronic fee receipting, fee
deposit, and initial data entry for specific form types.
Conduct IBIS Checks. Of the $1.988 billion assigned to immigration
and naturalization benefit application and petition and biometric
service processing activities, $48 million or 2% is assigned directly
to the ``Conduct IBIS Check'' activity. Since July 2002, USCIS has
added security checks to the processing of all immigration and
naturalization benefit applications and petitions. ``Conduct IBIS
Check'' includes $23 million in direct payroll costs of Adjudication
Officers and other authorized personnel to compare information on
applicants, petitioners, beneficiaries, derivatives and household
members who apply for an immigration or naturalization benefit on a
USCIS application or petition against various Federal lookout systems.
Review Records. Of the $1.988 billion assigned to immigration
benefit application/petition and biometric service processing
activities, $214 million or 11% is assigned directly to the ``Review
Records'' activity. ``Review Records'' includes $54 million in direct
payroll costs to oversee records operations (including processing
Freedom of Information Act (FOIA) requests) in Headquarters, the
National Records Center (a centralized facility for storing alien
records), and field offices. This activity covers $8.8 million in new
funding to process FOIA requests (as identified in section IV.E.3), a
$17 million records support contract to maintain records at local field
offices, $13 million in contract support staff in support of the
Harrisonburg File Facility for receipt file holdings, and the National
Archives and Records Administration contract for the retirement of
alien files, among other records activities.
Make Determination. Of the $1.988 billion assigned to immigration
benefit application/petition and biometric service processing
activities, $1.058 billion or 53% is assigned directly to the ``Make
Determination'' processing activity. This activity includes $421
million in direct payroll costs for Adjudication Officers and support
personnel (including $78.2 million of the $123.8 million to enhance
adjudications and support staff as identified in section IV.E.3), $24
million for field office discretionary general expenses, $13 million
for field office overtime, $50 million for investment technology field
support contract, $3.2 million for field training, $23 million for the
National Benefits Center contract, $21 million for the adjudications
clerical contract in support of field offices, and $11.5 million in
Application Support Center contract costs in direct support of
processing the Form I-90 (Application to Replace Permanent Resident
Card).
Fraud Detection and Prevention. Of the $1.988 billion assigned to
immigration and naturalization benefit application and petition and
biometric service processing activities, $90 million or 5% is assigned
directly to the ``Fraud Detection and Prevention'' activity. This
activity includes $50 million in payroll costs for Immigration Officers
and Intelligence Research specialists to detect and combat immigration
and naturalization benefit fraud. The activity also includes $31
million in additional government staff for fraud prevention and
detection efforts, $8 million for a new Administrative Site Inspection
Program, and $4 million in system enhancements to national security
systems and processes (as identified in section IV.E.3).
Issue Document. Of the $1.988 billion assigned to immigration and
naturalization benefit application/petition and biometric service
processing activities, $90 million or 5% is assigned directly to the
``Issue Document'' activity. The ``Issue Document'' activity involves
work performed at centralized facilities to produce secure cards for
certain immigration benefits. This includes $20 million for the
Integrated Card Production system, including the contract, consumables,
and information and technology operations and maintenance. The activity
also includes $32.4 million for a backup card production facility, and
$31.6 million for the enhanced delivery of secure documents (as
identified in section IV.E.3).
Capture Biometrics. Of the $1.988 billion assigned to immigration
and naturalization benefit application and petition and biometric
service processing activities, $174 million or 9% is assigned directly
to the ``Capture Biometrics'' activity. The ``Capture Biometrics''
activity includes $74 million in contract costs and $12.5 million in
direct payroll costs (most of which is for Application Support Center
managers) of operating the Application Support Centers to
electronically capture applicants' fingerprints, photographs, and
signatures. This activity also includes $63 million (including $12.4
million for increased costs associated with an overall increase in
projected biometric workload as well as an increase in FBI background
check costs passed on to USCIS through an interagency agreement, as
identified in section IV.E.3) in costs paid to the FBI to conduct the
appropriate background checks of fingerprints and/or applicant names
(depending upon the immigration benefit). This is a change in the
manner in which USCIS currently calculates the biometric fee since FBI
background check costs were previously included in the immigration
benefit application/petition fees. USCIS believes this is a more
accurate methodology since there is a direct relationship between the
biometric workload and the costs paid to the FBI. In addition, under
this method, applicants and petitioners directly bear the costs of FBI
background checks, as is the case today.
The FY 2008/2009 IEFA costs by processing activity are summarized
in Table 8 (dollars in thousands). Table 8.--FY 2008/2009 Costs by Processing Activity
------------------------------------------------------------------------
Amount
Activity (000)
------------------------------------------------------------------------
Capture Biometrics......................................... $174,000 [[Page 4907]]
Inform the Public.......................................... 228,000
Intake..................................................... 86,000
Conduct IBIS Checks........................................ 48,000
Review Records............................................. 214,000
Make Determination......................................... 1,058,000
Fraud Detection and Prevention............................. 90,000
Issue Document............................................. 90,000
------------
Total.................................................. 1,988,000
------------------------------------------------------------------------
VII. Assigning Processing Activity Costs to Applications and Petitions
and Biometric Services In ABC, the final stage in the process is assigning the processing
activity costs to the products. The products are decisions on the
immigration and naturalization benefit applications and petitions and
biometric services for which USCIS charges fees. A. Biometric Services The ``Capture Biometrics'' processing activity was assigned
directly to the biometric fee. The unit cost for this activity, and the
biometric fee, is $79 based on total costs of $174 million and a fee-
paying volume of 2.196 million. The other processing activities
represent the basic components of processing immigration and
naturalization benefit applications and petitions. B. Immigration Benefit Applications and Petitions In general, the more complex an immigration or naturalization
benefit application or petition is to adjudicate, the higher the unit
costs. This is because the largest processing activity cost, ``Make
Determination,'' was assigned to the various immigration and
naturalization benefit applications and petitions by a factor of
workload volume weighted by completion rate (hours per completion).
Workload volume is the measure of how many times an activity is
performed for a particular product (number of application/petitions and
biometrics received in a fiscal year), and ``completion rate'' measures
the average adjudicative time or ``level of effort'' needed to perform
the activity for a particular product, since time is a key factor in
determining immigration benefit application and petition fees. The
completion rates were based on the most recent data available from the
period of September 2005-August 2006. Exceptions to this general rule
occur when: (1) Volumes skew the unit costs (e.g., high volume
applications tend to have lower unit costs since costs are allocated
over a higher volume base), (2) additional activities were performed
(e.g., some applications require the creation of secure cards); and 3)
applications and petitions with low volumes were increased only by the
weighted average fee increase (discussed below).
For the processing activities of ``Inform the Public,'' ``Intake,''
``Conduct IBIS Check,'' ``Review Records,'' ``Fraud Prevention and
Detection'' and ``Issue Document,'' the applications and petitions
reflect the same average unit processing activity costs for each
activity. The ``Issue Document'' processing activity costs were
allocated only to those applications for which a secure document is
required. This is a departure from the basis of the current fees since
the current unit processing activity costs vary for every immigration
benefit application and petition. USCIS decided that this was the best
allocation method since these processing activity costs are not
particularly driven by the complexity of the application/petition, and
also to minimize the dollar impact on the more complex applications and
petitions (which already will carry higher fees due to their
complexity).
As explained previously, USCIS assumed no separate interim benefit
fees from Form I-485 applicants, and thus added interim benefit costs
from the ``Make Determination'' activity into the cost of the Form I-
485, the primary immigration benefit application for which interim
benefits are relevant. USCIS accomplished this by adding the completion
rates for the Forms I-765 and I-131 to the Form I-485 completion rate.
As a result, the costs for the ``Make Determination'' activity for the
Form I-485 received more of those costs, including associated overhead
costs, than it normally would have without factoring in interim
benefits. USCIS believes this is a fair and equitable methodology since
applicants, when filing a Form I-485, would also pay for the processing
costs of interim benefits, and would not be required to pay for
surcharges, other processing activities, and associated overhead costs
more than once as they do today. Interim benefit costs outside the
``Make Determination'' processing activity were distributed to the
other immigration benefit applications and petitions in accordance with
the general methodology. Also explained previously, in anticipating the
elimination of duplication in the K-3 petition process, USCIS assumed
no revenues from Form I-129F as it relates to the K-3 classification,
depending instead on one petition on Form I-130. This, too, has the
effect of redistributing costs relating to the K-3 classification over
all other form types.
USCIS leveraged ``completion rates,'' reflective of hours per
completion, to identify the adjudicative time required to complete
specific form types. The rate for each form type represents an average,
as some cases within certain form types are more complex than others.
Completion rates reflect what is termed ``touch time'' or the time the
Adjudication Officer is actually handling or touching the case.
Completion rates are not reflective of ``queue time'' or time spent
waiting, for example, for additional information or supervisory
approval. ``Touch time'' and ``queue time'' are different from
``processing time,'' which reflects the total time applicants and
petitioners can expect to await a decision on their case once the
application or petition is received by USCIS. Even though the
completion rates for select applications and petitions have increased
since the FY 1998 Fee Review, as referenced in section X, processing
times have decreased for the majority of form types.
All Adjudication Officers are required to report completion rate
information. In addition to using this data in determining fees,
completion rates are a key factor in determining local office staffing
allocations to match resources and workload since the type of workload
(and amount) dictates the resource requirements. For this reason, the
data are scrutinized both at the local office and regional level by
management, and by the Performance Management Branch (PMB) at the
Headquarters level to ensure data accuracy. When the data reported are
found to be inconsistent with other offices, or inconsistent with prior
reported data, PMB will contact the reporting office and make any
necessary adjustments. USCIS also places confidence in the data, given
the consistency of reporting it has witnessed over the last few years.
The fact that this information is now available on a continual basis
makes it easier for USCIS to update cost information more frequently
for fee review and cost management purposes. This methodology is
substantially superior to that available for the FY 1998 Fee Review,
where it was necessary to use a method of physical observations (based
on a statistically valid sample).
Local Office, Service Center, and the National Benefit Center
completion rates, reflected in terms of hours per completion, are
summarized in Table 9 by application and petition. The completion rates
for Form I-914 are not identified here since this proposed rule [[Page 4908]] would exempt applicants from paying the fee for this form type, and the
completion rates for Form I-290B/Motions (Administrative Appeals
Office) and Biometric Services (Application Support Centers) are also
not identified here since specific costs can be directly assigned to
these fee-based services, and therefore the factors of workload volume
and completion rates are not necessary to assign processing activity
costs to products. Table 9.--Completion Rates
----------------------------------------------------------------------------------------------------------------
Service National
Form No. Local offices centers benefit center
----------------------------------------------------------------------------------------------------------------
I-90............................................................ .93 .50 N/A
I-102........................................................... .61 .30 .39
I-129........................................................... .09 .40 N/A
I-129F.......................................................... 4.98 .41 .37
I-130........................................................... .86 .35 .65
I-131........................................................... .54 .20 .14
I-140........................................................... 2.00 .87 N/A
Waiver Applications............................................. 1.15 1.10 .85
I-360........................................................... .95 2.26 N/A
I-485........................................................... 2.30 1.30 2.65
I-526........................................................... 2.38 4.03 N/A
I-539........................................................... 1.32 .28 .31
I-600/600A...................................................... 1.53 N/A N/A
I-687........................................................... 2.37 2.89 .27
I-690........................................................... 3.49 1.91 .23
I-694........................................................... 4.00 .72 N/A
I-695........................................................... 1.85 13.00 N/A
I-698........................................................... 2.43 2.40 N/A
I-751........................................................... 1.36 .46 N/A
I-765........................................................... .31 .19 .16
I-817........................................................... 1.81 .46 .64
I-824........................................................... 1.10 .39 .69
I-829........................................................... 4.45 4.24 N/A
N-300........................................................... 1.67 N/A N/A
N-336........................................................... 1.34 N/A N/A
N-400........................................................... 1.17 N/A N/A
N-470........................................................... 1.48 1.91 N/A
N-565........................................................... .58 .60 N/A
N-600/600K...................................................... .80 1.17 N/A
---------------------------------------------------------------------------------------------------------------- Table 10 displays the unit costs (processing activity costs divided
by the number of fee-paying applications/petitions) for each
immigration benefit application and petition by processing activity,
and the average processing activity unit costs. The processing activity
costs were identified in Table 8, and the number of fee-paying
applications/petitions was identified as 4.742 million in Table 7.
The application and petition unit costs are generally increased by
varying amounts according to the form type, mainly due to the ``Make
Determination'' processing activity cost differences. As previously
stated, the ``Make Determination'' processing activity unit cost
generally follows the premise that the more complex the application/
petition is to adjudicate, the higher the unit costs. For the
processing activities of ``Inform the Public,'' ``Intake,'' ``Conduct
IBIS Check,'' ``Review Records,'' ``Fraud Prevention and Detection''
and ``Issue Document,'' the applications and petitions reflect the same
average unit costs for each processing activity. Since the ``Issue
Document'' processing activity costs were allocated only to those
applications for which a secure document is required, the average
processing activity unit costs of $19 (based on total fee-paying volume
of 4.742 million) is less than the processing activity unit costs of
$41 (based on associated fee-paying volume of 2.193 million) for the
associated applications. Table 10.--Processing Activity Unit Costs by Application/Petition
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fraud Total unit
Inform the Conduct Review Make prevention Issue processing
Form No. public Intake IBIS check records determination and document activity
(dollars) (dollars) (dollars) (dollars) (dollars) detection (dollars) cost
(dollars) (dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-90.......................................... 48 18 10 45 34 19 41 215
I-102......................................... 48 18 10 45 104 19 0 244
I-129......................................... 48 18 10 45 104 19 0 244
I-129F........................................ 48 18 10 45 239 19 0 379
I-130......................................... 48 18 10 45 142 19 0 282
I-131......................................... 48 18 10 45 49 19 41 230
I-140......................................... 48 18 10 45 261 19 0 401
Waiver Applications........................... 48 18 10 45 331 19 0 471
I-290B/Motions................................ 48 18 10 45 371 19 0 511
I-360......................................... 48 18 10 45 2,268 19 0 2,408
I-485......................................... 48 18 10 45 647 19 41 828 [[Page 4909]]
I-526......................................... 48 18 10 45 1,212 19 0 1,352
I-539......................................... 48 18 10 45 84 19 0 224
I-600/600A.................................... 48 18 10 45 453 19 0 593
I-687......................................... 48 18 10 45 495 19 0 635
I-690......................................... 48 18 10 45 390 19 0 530
I-694......................................... 48 18 10 45 330 19 0 470
I-695......................................... 48 18 10 45 1,117 19 0 1,257
I-698......................................... 48 18 10 45 1,107 19 41 1,288
I-751......................................... 48 18 10 45 210 19 41 391
I-765......................................... 48 18 10 45 83 19 41 264
I-817......................................... 48 18 10 45 182 19 41 363
I-824......................................... 48 18 10 45 126 19 0 266
I-829......................................... 48 18 10 45 2,579 19 41 2,760
N-300......................................... 48 18 10 45 536 19 0 676
N-336......................................... 48 18 10 45 391 19 0 531
N-400......................................... 48 18 10 45 378 19 0 518
N-470......................................... 48 18 10 45 428 19 0 568
N-565......................................... 48 18 10 45 167 19 0 307
N-600/600K.................................... 48 18 10 45 245 19 0 385
---------------------------------------------------------------------------------------------------------
Average Application/Petition.............. 48 18 10 45 223 19 19 382
--------------------------------------------------------------------------------------------------------------------------------------------------------
VIII. Assigning Surcharge Costs to Applications and Petitions The final step in calculating the immigration and naturalization
benefit application and petition fees is to add amounts to recover
asylum and refugee costs, and fee waiver and exempt costs. As
previously mentioned, these costs are referred to as ``surcharges''
since they are not directly related to the processing activity costs of
a particular immigration benefit. Surcharges are not assigned to the
biometric fee. A. Method of Assigning Costs USCIS used the same average unit surcharge cost for every
application and petition type. This is a departure from the current
allocation methodology, since the current surcharges are based upon a
flat percentage of each application/petition processing activity cost
and therefore vary for each case type. USCIS decided that using the
same average cost is a better allocation method, since the surcharges
are unrelated to the complexity of the application/petition, and this
new allocation method also minimizes the dollar impact on the more
complex applications and petitions (which already will carry higher
fees due to their complexity). B. Fee Waiver/Exemption Costs As previously stated, total fee waiver and exemption costs were
determined to be $150 million. The average of $32 was derived by
dividing the $150 million by the total 4.742 million application/
petition fee-paying volumes. C. Asylum/Refugee Costs As previously stated, the full costs of asylum and refugee
operations were determined to be $191 million. The average of $40 was
derived by dividing the $191 million by the total 4.742 million
application/petition fee-paying volume.
Table 11 displays the amount of surcharges applied to each
application and petition on a per unit basis. Unit processing activity
costs average (weighted) $382 or 86% of FY 2008/2009 IEFA costs, while
unit fee waiver/exemption and Asylum/Refugee surcharges average $72 or
14%. This equates to a weighted average unit cost per application/
petition of $454. Table 11.--Application and Petition Unit Costs
----------------------------------------------------------------------------------------------------------------
Unit Unit fee Unit asylum/
Form No. processing waiver/exempt refugee Total unit
activity cost surcharge surcharge cost
----------------------------------------------------------------------------------------------------------------
I-90............................................ $215 $32 $40 $287
I-102........................................... 244 32 40 316
I-129........................................... 244 32 40 316
I-129F.......................................... 379 32 40 451
I-130........................................... 282 32 40 354
I-131........................................... 230 32 40 302
I-140........................................... 401 32 40 473
Waiver Applications............................. 471 32 40 543
I-290B/Motions.................................. 511 32 40 583
I-360........................................... 2,408 32 40 2,480
I-485........................................... 828 32 40 900
I-526........................................... 1,352 32 40 1,424
I-539........................................... 224 32 40 296
I-600/600A...................................... 593 32 40 665 [[Page 4910]]
I-687........................................... 635 32 40 707
I-690........................................... 530 32 40 602
I-694........................................... 470 32 40 542
I-695........................................... 1,257 32 40 1,329
I-698........................................... 1,288 32 40 1,360
I-751........................................... 391 32 40 463
I-765........................................... 264 32 40 336
I-817........................................... 363 32 40 435
I-824........................................... 266 32 40 338
I-829........................................... 2,760 32 40 2,832
N-300........................................... 676 32 40 748
N-336........................................... 531 32 40 603
N-400........................................... 518 32 40 590
N-470........................................... 568 32 40 640
N-565........................................... 307 32 40 379
N-600/600K...................................... 385 32 40 457
---------------------------------------------------------------
Weighted Average Application/Petition....... 382 32 40 454
----------------------------------------------------------------------------------------------------------------
IX. Proposed Fee Adjustments To arrive at the final proposed fees, the unit costs are rounded up
or down to the nearest $5 increment consistent with past fee practices
as reflected in 8 CFR 103.7(b). A. Biometric Services The biometric fee is increased by $10, from $70 to $80, or 14%.
USCIS last increased the fee by $20, from $50 to $70, or 40% in April
2004. As discussed above, a portion of this fee is paid by USCIS to the
FBI for fingerprint processing and that cost may change. B. Immigration Benefit Applications and Petitions The weighted average application/petition fee is increased by $223,
from $231 to $454, or 96%. When combined with the biometric fee, the
weighted average application/petition is increased from $264 to $491,
or 86%. After consolidating the fees for adjustment of status (Form I-
485) and interim benefits that previously required additional fees, the
increase would only be 66%. When USCIS last performed a comprehensive
fee review in FY 1998, the immigration benefit application/petition
fees increased by a weighted average of $65 or 76%, from $85 to $150.
To arrive at the proposed fees, in addition to rounding
adjustments, USCIS adjusted certain low volume form types. Since some
low volume form types (20,000 or less) produced particularly high unit
costs as compared to the current fees (greater than 250%), USCIS
decided to increase them only by the average percentage fee increase
(96%) of all immigration benefit applications and petitions. The
additional costs from these form types were then prorated to other
applications and petitions. These form types are:
Form I-360, Petition for Amerasian Widow(er) or Special
Immigrant (with respect to those Form I-360 applicants whose fee is not
removed altogether);
Form I-690, Application for Waiver of Excludability;
Form I-695, Application for Replacement Employment
Authorization or Temporary Residence Card;
Form N-300, Application to File Declaration of Intention;
and
Form N-470, Application to Preserve Residence for
Naturalization Purposes.
USCIS did, however, use its normal methodology to increase proposed
fees for form types related to the legalization program under the
Immigration Reform and Control Act of 1986, INA sec. 245A, 8 U.S.C.
1255a (Form I-694, Notice of Appeal of Decision; Form I-698,
Application to Adjust Status From Temporary to Permanent Resident) and
for Form I-829, Petition by Entrepreneur to Remove Conditions, although
these increases were more than 250%. These applications, which relate
to IRCA legalization applicants who have resided in the United States
since at least 1982, or entrepreneurs seeking lawful permanent
residence on the basis of investments of at least $500,000, did not
appear to involve a substantial rationale for a lower fee than would
otherwise be charged under the applicable methodology.
The proposed fee schedule for the immigration and naturalization
benefit applications and petitions is illustrated in Table 12. The
proposed rounded fee for each application or petition is compared to
the current rounded fee, and the difference between the two is
identified. This table omits some variations within specific form types
relating to children, family caps, etc.; for these fees, please see the
proposed regulation text itself. Table 12.--Current and Proposed Fees
------------------------------------------------------------------------
Proposed
Form No. Current fee fee Difference
(dollars) (dollars) (dollars)
------------------------------------------------------------------------
I-90............................ 190 290 100
I-102........................... 160 320 160
I-129........................... 190 320 130
I-129F.......................... 170 455 285
I-130........................... 190 355 165
I-131........................... 170 305 135 [[Page 4911]]
I-140........................... 195 475 280
Waiver Applications............. 265 545 280
I-290B/Motions.................. 385 585 200
I-360........................... 190 375 185
I-485........................... 325 905 580
I-526........................... 480 1,435 955
I-539........................... 200 300 100
I-600/600A...................... 545 670 125
I-687........................... 255 710 455
I-690........................... 95 185 90
I-694........................... 110 545 435
I-695........................... 65 130 65
I-698........................... 180 1,370 1,190
I-751........................... 205 465 260
I-765........................... 180 340 160
I-817........................... 200 440 240
I-824........................... 200 340 140
I-829........................... 475 2,850 2,375
I-914........................... 270 0 (270)
N-300........................... 120 235 115
N-336........................... 265 605 340
N-400........................... 330 595 265
N-470........................... 155 305 150
N-565........................... 220 380 160
N-600/600K...................... 255 460 205
---------------------------------------
Weighted Average Application/ 231 454 223
Petition...................
------------------------------------------------------------------------
Based on the proposed fee schedule and a projected application/
petition fee-paying volume of 4.742 million and biometric service
volume of 2.196 million, immigration and naturalization benefit
application and petition and biometric fees will generate $2.331
billion in annual revenue for the FY 2008 and FY 2009 biennial period.
For the same period, the estimated FY 2008/2009 cost of processing
immigration and naturalization benefit applications and petitions and
biometric services is $2.329 billion. The $2 million difference is due
to rounding. X. Impact on Applicants and Petitioners The USCIS recognizes that this proposed rule would have an impact
on persons who file the affected applications and petitions and
biometric fees. The proposed fee increases range from $65 to $2,350,
depending on the type of immigration or naturalization benefit for
which the application or petition is submitted. Fifteen fees will
increase by amounts between $65 and $200; eight fees will increase, and
one will decrease, by amounts between $200 and $300; one fee will
increase by amounts between $300 and $400; and six fees will increase
more than $400.
USCIS is retaining the authority to waive certain fees on a case-
by-case basis pursuant to 8 CFR 103.7(c). In all fee waiver requests,
applicants are required to demonstrate ``inability to pay.'' In
determining ``inability to pay,'' USCIS officers will consider all
factors, circumstances, and evidence supplied by the applicant
including age, disability, household income, and qualification within
the past 180 days for a federal means tested benefit. The current fees
are based on a comprehensive fee review completed in FY 1998 that was
based on projected FY 1998 costs and volumes, and processes that
existed in FY 1996. The new fee review proposes to correctly align the
fees with currently planned costs and processes. The methodology is
similar to the FY 1998 Fee Review, yet improved in many areas given the
more detailed and accurate data sources and improved management tools
to align resources and workload (e.g., staffing model). For these
reasons, the proposed fees cannot be compared to the current fees
because so many of the factors that influence the costs of processing
immigration benefit application and petition fees have changed over
this significant amount of time. However, besides the fact that overall
costs have increased dramatically, the increases in fees can mainly be
explained by comparing completion rate data (termed ``cycle time'' in
the FY 1998 Fee Review).
As stated previously, the more time or ``level of effort'' spent on
adjudicating a particular application or petition, measured in terms of
completion rates, the higher the fee. Most of the increases in
completion rates are associated with the additional time devoted to the
expansion of background checks to all immigration benefit applications
instituted in July 2002. Examples include:
Form I-140, Immigrant Petition for Alien Worker, fee
increase is due to the threefold increase in completion rates (i.e.,
three times the level of effort) as compared with the FY 1998 Fee
Review;
Form I-129F, Petition for Alien Fianc[eacute], fee
increase is due to the threefold increase in completion rates as
compared with the FY 1998 Fee Review;
Waiver Applications, fee increases are due to the
threefold increase in completion rates as compared with the FY 1998 Fee
Review;
Form I-485, Application to Register Permanent Status or
Adjust Status, fee increase is due to the threefold increase in
completion rates as compared with the FY 1998 Fee Review, as well as
the manner in which interim benefits are added to this form type as
explained in section VI (when comparing the fees applicants pay today
for adjustment of status and interim benefits versus the proposed
single fee for adjustment of [[Page 4912]] status, the difference is far less significant);
Form N-400, Application for Naturalization, fee increase
is due to the threefold increase in completion rates as compared with
the FY 1998 Fee Review;
Form I-751, Petition to Remove the Conditions on
Residence, fee increase is due to the doubling in completion rates as
compared with the FY 1998 Fee Review; and
Form I-817, Application for Family Unity Benefits, fee
increase is due to the threefold increase in completion rates as
compared with the FY 1998 Fee Review.
Finally, even though the fee for Form I-290B/Motions was increased
recently (September 28, 2005), the actual Fee Review supporting the
increase was completed in November 2002. The data that were used for
the current fee are outdated and costs have significantly increased.
The November 2002 Fee Review was not a comprehensive analysis, as it
did not analyze the full costs outside the Administrative Appeals
Office that should be assigned to this form type, such as overhead, and
other activities outside of the ``Make Determination'' activity such as
``Fraud Prevention and Detection,'' and ``Inform the Public''
activities. In addition, the November 2002 Fee Review did not include
the allocation of fee waiver/exempt and asylum and refugee surcharges
to the Form I-290B/Motions as this rulemaking does. XI. Fee Waivers In tandem with the proposed increase in fees, USCIS also proposes
to modify and clarify eligibility for an individual fee waiver in 8 CFR
103.7(c). Where appropriate in its fee structure, USCIS waives the
application/petition fee for a class of applicants/petitioners. For
example, there is no fee for filing an application for asylum. The
applicable rule, 8 CFR 103.7(c) provides for an individual fee waiver
request in other cases. USCIS considers waiving the fee for a single
individual based on his or her circumstances when all others in similar
circumstances applying for the same benefit or service must pay the
fee.
Every fee waiver, whether for a group of applicants done through
the rate setting process or through an individual fee waiver, does not
simply waive the fee for the affected individual or individuals. Since
USCIS is funded from application fees, a fee waiver transfers the cost
to all other fee-paying applicants. Fairness requires that there be
compelling reasons when granting an individual fee waiver to one
applicant while making others applying for the same benefit or service
pay full cost plus a surcharge to pay for the free service provided to
the first customer.
In recent months, the number of individual fee waiver requests has
risen, both in terms of total volume and as a percentage of
applications filed. In addition, the proposed rate setting is based on
historical data with respect to fee waivers. The higher fees proposed
in this rule would likely mean more customers will apply for fee
waivers as they attempt to avoid the rising costs of applying for a
benefit or service. The process of considering a fee waiver request
itself has a significant associated adjudication cost.
To offset this potential, this proposed rule clarifies the fee
waiver process by limiting fee waivers to certain situations. The
current rule permits application for a fee waiver even when such an
application contradicts the basic benefit or service being requested.
For example, companies can apply for a waiver of the fee when seeking
to admit a foreign worker to whom they must pay appropriate wages.
Similarly, individuals may apply for a fee waiver when seeking status
based on a substantial investment or an extension of stay where they
must demonstrate the ability to support themselves during the period of
extended stay without working. Applicants for permanent residence must
demonstrate they can support themselves and will not become a public
charge, and those seeking to sponsor the immigration of a relative must
commit to providing a financial safety net to the relative if necessary
to ensure the alien does not become a public charge, yet such
applicants can seek a fee waiver.
These examples illustrate situations where the basic premise of a
fee waiver is wholly or largely inconsistent with the status held or
benefit or service sought. The proposed rule applies this principle by
limiting the possibility of a fee waiver to certain kinds of
applications where a need-based waiver is not inconsistent with the
status or benefit being sought. In so doing, it also clarifies and
simplifies the waiver process. The proposed rule limits the list of
applications for which an individual fee waiver based on inability to
pay may be granted to the Form I-90; Form I-751; Form I-765; Form I-
817; Form N-300; Form N-336; Form N-400; Form N-470; Form N-565; Form
N-600; Form N-600k; and the Form I-290B (if relating to a motion or
appeal filed with USCIS regarding one of the other waiver-eligible form
types).
Finally, a fee waiver based on an inability to pay implicates other
provisions of the INA. INA section 212(a)(4), 8 U.S.C. 1182(a)(4),
provides that an alien who is likely to become a public charge is
inadmissible to the United States. In family-sponsored immigration, for
example, this potential ground for inadmissibility may be overcome
through the appropriate affidavit of support under INA section 213A, 8
U.S.C. 1183a. USCIS should not grant a waiver of a fee that indicates
that the alien may be inadmissible and such affidavit of support may be
suspect. XII. Statutory and Regulatory Reviews A. Regulatory Flexibility Act In accordance with the Regulatory Flexibility Act, 5. U.S.C.
601(6), USCIS examined the impact of this proposed rule on small
entities. A small entity may be a small business (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)), a small not-for-profit organization, or a small
governmental jurisdiction (locality with fewer than 50,000 people).
USCIS determined which entities were small by using the definitions
supplied by the Small Business Administration. The size of the
companies was determined by using the ReferenceUSA databases at http://www.referenceusa.com/.
Below is a summary of the small entity analysis. A more detailed analysis is available in the rulemaking docket.
Individuals rather than small entities submit the majority of
immigration and naturalization benefit applications and petitions.
Entities that would be affected by this proposed rule are those that
file and pay the fees for certain immigration benefit applications on
behalf of an alien. These applications include the Form I-129, Petition
for a Nonimmigrant Worker, and the Form I-140, Immigrant Petition for
Alien Worker. USCIS conducted a statistically valid sample analysis of
applicants of these form types to determine if this proposed rule has
an economically significant impact on a substantial number of small
entities.
Out of the 439,000 applications filed in FY 2005 for these form
types, USCIS first identified the minimum sample size that was large
enough to achieve a 95% confidence level. This sample size was
identified as 383 (out of a total of 149,658 unique entities that filed
applications in FY 2005). USCIS then randomly selected 653 entities, of
which 561, or 86% were classified as small entities. Therefore, USCIS
determined that a substantial number of small entities are impacted by
this proposed rule. [[Page 4913]] USCIS then analyzed the economic impact on small entities of this
proposed rule by (1) Identifying the number of applications filed by
the small entities having sales revenue data identified by the random
sample; and (2) multiplying the number of applications by the fee
increase associated with the applicable form types in order to estimate
the increased annual burden imposed by this rulemaking. Once USCIS
determined the additional cost of this rulemaking on the randomly
selected small entities, USCIS divided this total increased cost by the
annual sales revenue of the entity. By comparing the cost increases
imposed by this rulemaking with the sales revenue of the impacted small
entities, we are able to understand the economic impact of this
proposed rule on the individual small entities we have sampled. Using
the ReferenceUSA database of business information, USCIS was able to
identify annual sales revenue estimates for 273 of the 561 small
entities previously sampled. Of the 273 small entities, 213 or about
78% of the small entities exhibited an impact of less than 0.1% of
sales revenue, and all of the small entities sampled exhibited an
impact of less than 1% of total revenue. A simple (non-weighted)
average of the 273 small entities equated to an overall impact of only
0.06% of sales revenue. Therefore, USCIS believes that a substantial
number of small entities are not significantly impacted economically by
this proposed rule.
In summary, although the analysis shows that this rulemaking would
affect a substantial number of small entities, the economic impact of
this proposed rule was found to be negligible. This proposed rule has
been reviewed in accordance with 5 U.S.C. 605(b), and the Department of
Homeland Security certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities. B. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken before an agency promulgates any notice of proposed
rulemaking ``that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, local and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year.'' 2 U.S.C. 1532(a). While this proposed rule,
if finally promulgated, 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, 2 U.S.C. 658(6), as
the payment of application and petition 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.
2 U.S.C. 658(7)(A)(ii). Therefore, no actions were deemed necessary
under the provisions of the UMRA. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rulemaking is a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rulemaking will
result in an annual effect on the economy of more than $100 million, in
order to generate the revenue necessary to fully fund the increased
cost associated with the processing of immigration benefit applications
and associated support benefits; the full cost of providing similar
benefits to asylum and refugee applicants; and the full cost of similar
benefits provided to other immigrants, as specified in the regulation,
at no charge. The increased costs will be recovered through the fees
charged for various immigration benefit applications. D. Executive Order 12866 This proposed rule is considered by the Department of Homeland
Security to be an economically significant regulatory action under
Executive Order 12866, section 3(f), Regulatory Planning and Review.
The implementation of this proposed rule would provide USCIS with an
additional $1.081 billion in FY 2008 and FY 2009 in annual fee revenue,
based on a projected annual fee-paying volume of 4.742 million
applications/petitions and 2.196 million requests for biometric
services, over the fee revenue that would be collected under the
current fee structure. This increase in revenue will be used pursuant
to subsections 286(m) and (n) of the INA, 8 U.S.C. 1356(m) and (n), to
fund the full costs of processing immigration benefit applications and
associated support benefits; the full cost of providing similar
benefits to asylum and refugee applicants; and the full cost of similar
benefits provided to other immigrants at no charge. If USCIS does not
adjust the current fees to recover the full costs of processing
immigration benefit applications, USCIS would be forced to enact
significant spending reductions resulting in a reversal of the
considerable progress it has made over the last several years to reduce
the backlog of immigration benefit applications and petitions to
increase the integrity of the immigration benefit system and to protect
national security and public safety. The revenue increase is based on
USCIS costs and projected volumes that were available at the time the
proposed rule was drafted. USCIS has placed in the rulemaking docket a
detailed analysis that explains the basis for the annual fee increase.
Accordingly, this proposed rule has been reviewed by the Office of
Management and Budget. E. Executive Order 13132 This rulemaking will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Department of Homeland Security has
determined that this rulemaking does not have sufficient Federalism
implications to warrant the preparation of a federalism summary impact
statement. F. Executive Order 12988 This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a rule. This rulemaking does not propose to impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
The changes to the fees will require changes to the application/
petition form types to reflect the new fees. USCIS will submit a
notification to OMB with respect to any such changes. In addition, this
proposed rule anticipates (but is not dependent on) consolidating the
Form I-131 and Form I-765 into the Form I-485 so that applicants for
adjustment of status will not be required to file three separate form
types in order to apply for adjustment of status, advance parole and
employment authorization. This change will reduce paperwork burdens on
these applicants. List of Subjects in 8 CFR Part 103 Administrative practice and procedures, Authority delegations
(government agencies), Freedom of Information, Privacy, Reporting and [[Page 4914]] recordkeeping requirements, Surety bonds. Accordingly, part 103 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows: PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as
follows: Authority: 5 U.S.C. 301, 552, 552(a); 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p.166;
8 CFR part 2. 2. Section 103.7 is amended by:
a. Removing the entry for the Form I-914 in paragraph (b)(1);
b. Revising the entries for the following forms in paragraph
(b)(1);
c. Removing the fifth and sixth sentences in paragraph (c)(1); and
by
d. Adding a new paragraph (c)(5).
The revision and addition read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
For capturing biometric information. A service fee of $80 will be
charged for any individual who is required to have biometric
information captured in connection with an application or petition for
certain immigration and naturalization benefits (other than asylum),
and whose residence is in the United States.
* * * * *
Form I-90. For filing an application for a Permanent Resident Card
(Form I-551) in lieu of an obsolete card or in lieu of one lost,
mutilated, or destroyed, or for a change in name--$290.
* * * * *
Form I-102. For filing a petition for an application (Form I-102)
for Arrival/Departure Record (Form I-94) or Crewman's Landing (Form I-
95), in lieu of one lost, mutilated, or destroyed--$320.
Form I-129. For filing a petition for a nonimmigrant worker--$320.
Form I-129F. For filing a petition to classify a nonimmigrant as a
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--$455;
no fee for a K-3 spouse as designated in section 214.1(a)(2) of this
chapter who is the beneficiary of an immigrant petition filed by a U.S.
citizen on Form I-130.
Form I-130. For filing a petition to classify status of an alien
relative for issuance of an immigrant visa under section 204(a) of the
Act--$355.
Form I-131. For filing an application for travel documents--$305.
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--$475.
Form I-191. For filing an application for discretionary relief
under section 212(c) of the Act--$545.
Form I-192. For filing an application for discretionary relief
under section 212(d)(3) of the Act, except in an emergency case, or
where the approval of the application is in the interest of the United
States Government--$545.
Form I-193. For filing an application for waiver of passport and/or
visa--$545.
Form I-212. For filing an application for permission to reapply for
an excluded, deported or removed alien, an alien who has fallen into
distress, an alien who has been removed as an alien enemy, or an alien
who has been removed at government expense in lieu of deportation--
$545.
* * * * *
Form I-290B. For filing an appeal from any decision under the
immigration laws in any type of proceeding over which the Board of
Immigration Appeals does not have appellate jurisdiction--$585 (the fee
will be the same when an appeal is taken from the denial of a petition
with one or multiple beneficiaries, provided that they are all covered
by the same petition, and therefore, the same decision).
Form I-360. For filing a petition for an Amerasian, Widow(er), or
Special Immigrant--$375, except there is no fee for a petition seeking
classification as an Amerasian or as a self-petitioning battered or
abused spouse, parent, or child of a U.S. citizen or Lawful Permanent
Resident.
Form I-485. For filing an application for permanent resident status
or creation of a record of lawful permanent residence--$905 for an
applicant 14 years of age or older; $805 for an applicant under the age
of 14 years; no fee for an applicant filing as a refugee under section
209(a) of the Act. No additional fee will be charged for a request for
travel document (advance parole) or employment authorization by an
applicant who has paid the Form I-485 application fee, regardless
whether or not the Form I-131 or Form I-765 is required to be filed by
such applicant to receive these benefits.
* * * * *
Form I-526. For filing a petition for an alien entrepreneur--
$1,435.
Form I-539. For filing an application to extend or change
nonimmigrant status--$300.
* * * * *
Form I-600. For filing a petition to classify an orphan as an
immediate relative for issuance of an immigrant visa under section
204(a) of the Act. (When more than one petition is submitted by the
same petitioner on behalf of orphans who are brothers or sisters, only
one fee will be required.)--$670.
Form I-600A. For filing an application for advance processing of
orphan petition. (When more than one petition is submitted by the same
petitioner on behalf of orphans who are brothers or sisters, only one
fee will be required.)--$670.
Form I-601. For filing an application for waiver of ground of
inadmissibility under section 212(h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those subsections.)--$545.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$545.
Form I-687. For filing an application for status as a temporary
resident under section 245A (a) of the Act. A fee of $710 for each
application or $570 for each application for a minor child (under 18
years of age) is required at the time of filing with the Department of
Homeland Security. The maximum amount payable by a family (husband,
wife, and any minor children) shall be $1,990.
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--$185.
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--$545.
Form I-695. For filing an application for replacement of temporary
resident card (Form I-688)--$130.
Form I-698. For filing an application for adjustment from temporary
resident status to that of lawful permanent resident under section
245A(b)(1) of the Act. For applicants filing within 31 months from the
date of adjustment to temporary resident status, a fee of $1,370 for
each application is required at the time of filing with the Department
of Homeland Security. The maximum amount payable by a family (husband,
wife, and any minor children (under 18 [[Page 4915]] years of age living at home)) shall be $4,110. For applicants filing
after thirty-one months from the date of approval of temporary resident
status, who file their applications on or after July 9, 1991, a fee of
$1,410 (a maximum of $4,230 per family) is required. The adjustment
date is the date of filing of the application for permanent residence
or the applicant's eligibility date, whichever is later.
* * * * *
Form I-751. For filing a petition to remove the conditions on
residence, based on marriage--$465.
Form I-765. For filing an application for employment authorization
pursuant to 8 CFR 274a.13--$340.
* * * * *
Form I-817. For filing an application for voluntary departure under
the Family Unity Program--$440.
* * * * *
Form I-824. For filing for action on an approved application or
petition--$340.
Form I-829. For filing a petition by entrepreneur to remove
conditions--$2,850.
* * * * *
Form N-300. For filing an application for declaration of
intention--$235.
Form N-336. For filing a request for hearing on a decision in
naturalization proceedings under section 336 of the Act--$605.
Form N-400. For filing an application for naturalization (other
than such application filed on or after October 1, 2004, by an
applicant who meets the requirements of sections 328 or 329 of the Act
with respect to military service, for which no fee is charged)--$595.
* * * * *
Form N-470. For filing an application for benefits under section
316(b) or 317 of the Act--$305.
Form N-565. For filing an application for a certificate of
naturalization or declaration of intention in lieu of a certificate or
declaration alleged to have been lost, mutilated, or destroyed; for a
certificate of citizenship in a changed name under section 343(c) of
the Act; or for a special certificate of naturalization to obtain
recognition as a citizen of the United States by a foreign state under
section 343(b) of the Act--$380.
Form N-600. For filing an application for a certificate of
citizenship under section 309(c) or section 341 of the Act--$460, for
applications filed on behalf of a biological child and $420 for
applications filed on behalf of an adopted child.
Form N-600K. For filing an application for citizenship and issuance
of certificate under section 322 of the Act--$460, for an application
filed on behalf of a biological child and $420 for an application filed
on behalf of an adopted child.
* * * * *
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Executive Office for Immigration Review does not have jurisdiction. No
fee shall be charged for a motion to reopen or reconsider a decision on
an application for relief for which no fee is chargeable or for any
motion to reopen or reconsider made concurrently with any initial
application for relief under the immigration laws for which no fee is
chargeable. (The fee of $585 shall be charged whenever an appeal or
motion is filed by or on behalf of two or more aliens and all such
aliens are covered by one decision. When a motion to reopen or
reconsider is made concurrently with any application for relief under
the immigration laws for which a fee is chargeable, the motion is filed
and, if the motion is granted, the requisite fee for filing the
application for relief will be charged and must be paid within the time
specified in order to complete the application.)--$585.
* * * * *
(c) * * *
(5) Except as otherwise specifically provided by this paragraph and
by paragraphs (c)(2) and (c)(4) of this section, no fee relating to any
application, petition, appeal, motion or request made to U.S.
Citizenship and Immigration Services may be waived under this section
except for the following: Form I-90; Form I-751; Form I-765; Form I-
817; Form N-300; Form N-336; Form N-400; Form N-470; Form N-565; Form
N-600; Form N-600K; and Form I-290B and motions filed with U.S.
Citizenship and Immigration Services relating to the specified forms in
this paragraph (c)(5).
* * * * * Dated: January 26, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-1631 Filed 1-31-07; 8:45 am] BILLING CODE 4410-10-P
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