```

[Federal Register Volume 77, Number 61 (Thursday, March 29, 2012)]
[Rules and Regulations]
[Pages 18907-18914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7569]

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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 77, No. 61 / Thursday, March 29, 2012 / Rules 
and Regulations

[[Page 18907]]

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DEPARTMENT OF STATE

22 CFR Parts 22 and 42

[Public Notice 7835]
RIN 1400-AD06

Schedule of Fees for Consular Services, Department of State and 
Overseas Embassies and Consulates

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim final rule.

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SUMMARY: This rule amends the Schedule of Fees for consular services 
(Schedule) for nonimmigrant visa application processing fees, border 
crossing card application processing fees and immigrant visa 
application processing fees. The rule increases from $140 to $160 the 
fee charged for the processing of an application for most non-petition-
based nonimmigrant visas (Machine-Readable Visas or MRVs) and Border 
Crossing Cards (BCCs) for Mexican citizens age 15 and over. The rule 
also provides amended application processing fees for certain 
categories of petition-based nonimmigrant visas and treaty trader and 
investor visas (all of which are also MRVs), as well as amended tiered 
application processing fees for immigrant visas. Finally, the rule 
increases from $14 to $15 the BCC fee charged to Mexican citizen minors 
who apply in Mexico, and whose parent or guardian already has a BCC or 
is applying for one, based on a Congressionally mandated surcharge that 
took effect since the last adjustment to the Schedule of Fees. The 
Department of State is adjusting the fees to ensure that sufficient 
resources are available to meet the costs of providing consular 
services in light of the recent fee review's findings that the U.S. 
government is not fully covering its costs for the processing of these 
visas under the current fee structure.

DATES: This interim final rule becomes effective April 13, 2012. 
Written comments must be received on or before May 29, 2012.

ADDRESSES: Interested parties may contact the Department by any of the 
following methods:
     Persons with access to the Internet may view this notice 
and submit comments by going to the regulations.gov Web site at: http://www.regulations.gov and searching on the RIN number, 1400-AD06.
     Mail (paper, disk, or CD-ROM): U.S. Department of State, 
Office of the Comptroller, Bureau of Consular Affairs, Suite H1004, 
2401 E Street NW., Washington, DC 20520.
     Email: [email protected]. You must include the RIN (1400-
AD06) in the subject line of your message.
     All comments should include the commenter's name, the 
organization the commenter represents, if applicable, and the 
commenter's address. If the Department is unable to read your comment 
for any reason, and cannot contact you for clarification, the 
Department may not be able to consider your comment.

FOR FURTHER INFORMATION CONTACT: Special Assistant, Office of the 
Comptroller, Bureau of Consular Affairs, Department of State; phone: 
202-663-1576, telefax: 202-663-2526; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The interim final rule makes changes to the Schedule of Fees for 
consular services of the Department of State's Bureau of Consular 
Affairs. The Department sets and collects its fees based on the concept 
of full cost recovery. The Department completed its most recent review 
of current consular fees and will implement several changes to the 
Schedule of Fees based on the new fees calculated by the Cost of 
Service Model (CoSM). Please note that certain ``no fee'' consular 
services are included in the Schedule of Fees so that members of the 
public will be aware of significant consular services provided by the 
Department at no charge to the recipient of the service.

What is the authority for this action?

    The Department of State derives the general authority to set fees 
based on the cost of the consular services it provides, and to charge 
those fees, from the general user charges statute, 31 U.S.C. 9701. See, 
e.g., 31 U.S.C. 9701(b)(2)(A) (``The head of each agency * * * may 
prescribe regulations establishing the charge for a service or thing of 
value provided by the agency * * * based on * * * the costs to the 
government.''). As implemented through Executive Order 10718 of June 
27, 1957, 22 U.S.C. 4219 further authorizes the Department to establish 
fees to be charged for official services provided by U.S. embassies and 
consulates. Other authorities allow the Department to charge fees for 
consular services, but not to determine the amount of such fees, as the 
amount is statutorily determined.
    Several statutes address specific fees relating to nonimmigrant 
visas. For instance, 8 U.S.C. 1351 establishes reciprocity as the basic 
principle for setting the nonimmigrant visa issuance fee. In addition 
to the reciprocity issuance fee, section 140(a) of the Foreign 
Relations Authorization Act, Fiscal Years 1994 and 1995, Public Law 
103-236, 108 Stat. 382, as amended, reproduced at 8 U.S.C. 1351 (note), 
establishes a cost-based application processing fee for MRVs and BCCs. 
Such fees remain available to the Department until expended. 8 U.S.C. 
1351 (note), 1713(d). Furthermore, section 239 of the William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 
requires the Secretary of State to collect a $1 surcharge (the 
``Wilberforce surcharge'') on all MRVs and BCCs in addition to the 
application processing fee; this surcharge must be deposited into the 
general fund of the Treasury and goes to support anti-trafficking 
programs. See Public Law 110-457, 122 Stat. 5044, Title II, section 
239, reproduced at 8 U.S.C. 1351 (note). In addition to the $1 
Wilberforce surcharge already included in all nonimmigrant visa 
application processing fees for MRVs and BCCs, section 501 of the Tom 
Lantos and Henry J. Hyde United States Global Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, requires 
the Secretary of State to collect an additional $1 surcharge (the 
``HIV/AIDS/TB/Malaria surcharge'') on all MRVs and BCCs in addition to 
the application processing fee; this surcharge must be deposited into 
the Treasury and goes to support programs

[[Page 18908]]

to combat HIV/AIDS, tuberculosis, and malaria. See Public Law 110-293, 
122 Stat. 2968, Title V, section 501, reproduced at 8 U.S.C. 1351 
(note).
    Additionally, several statutes address fees for immigrant visa 
processing. For example, section 636 of the Omnibus Consolidated 
Appropriations Act of 1997 authorizes the Secretary of State to collect 
and retain a ``Diversity Immigrant Lottery Fee.'' See Public Law 104-
208, 110 Stat. 3009-703, div. C, Title VI, section 636, reproduced at 8 
U.S.C. 1153 (note). Under this fee authority, the Secretary of State 
may establish and retain a fee to recover the costs of ``allocating 
visas'' described in section 203(c) of the Immigration and Nationality 
Act (INA) [8 U.S.C. 1153], i.e., running the diversity visa lottery 
pursuant to INA section 204(a)(1)(I) [8 U.S.C. 1154(a)(1)(I)], and to 
recover the costs of ``processing applications'' for diversity 
immigrant visas submitted by selectees of the lottery. See Public Law 
104-208, 110 Stat. 3009-703, div. C, Title VI, section 636, reproduced 
at 8 U.S.C. 1153 (note). Accordingly, the ``diversity visa lottery 
fee,'' charged to those persons selected by the lottery who 
subsequently apply for a diversity immigrant visa, incorporates all the 
costs to the Department of administering the diversity visa lottery 
program and processing the resulting diversity immigrant visa 
applications.
    Another statute authorizes the Department to collect and retain a 
surcharge on immigrant visas to help pay for efforts to enhance border 
security. See 8 U.S.C. 1714. While this immigrant visa surcharge was 
originally frozen statutorily at $45, subsequent legislation authorized 
the Department to amend these amounts administratively, provided the 
resulting surcharge is ``reasonably related to the costs of providing 
services in connection with the activity or item for which the 
surcharges are charged.'' Department of State Authorities Act of 2006, 
Public Law 109-472, 120 Stat. 3554, section 6, reproduced at 8 U.S.C. 
1714 (note).
    Certain people are exempted by law or regulation from paying 
specific fees or are expressly made subject to special fee charges by 
law. These are noted in the text below. They include, for instance, 
several exemptions from the nonimmigrant visa application processing 
fee for certain individuals who engage in charitable activities or who 
qualify for diplomatic visas. See 8 U.S.C. 1351; 22 CFR 41.107(c). The 
costs for these no-fee nonimmigrant visas are currently being recouped 
in the MRV fee which is based on the costs and volumes for all 
nonimmigrant visas, both fee and no-fee. Certain Iraqi and Afghan 
nationals are similarly exempt from paying an immigrant visa 
application processing fee. See National Defense Authorization Act for 
Fiscal Year 2008, Public Law 110-181, 122 Stat. 3, div. A, Title XII, 
section 1244(d), reproduced at 8 U.S.C. 1157 (note); Omnibus 
Appropriations Act, 2009, Public Law 111-8, 123 Stat. 524, div. F, 
Title VI, section 602(b)(4), reproduced at 8 U.S.C. 1101 (note). The 
cost of immigrant visas for Iraqi and Afghan nationals is currently not 
recouped anywhere in the present fee schedule.
    While for most consular fees, the funds collected must be deposited 
into the Treasury, various statutes permit the Department to retain the 
fee revenue it collects. Among these are the following: (1) The MRV and 
BCC fees, see Foreign Relations Authorization Act, Fiscal Years 1994 
and 1995, Public Law 103-236, 112 Stat. 2681-50, Title I, section 
140(a)(2), reproduced at 8 U.S.C. 1351 (note); (2) the immigrant visa 
security surcharge, see 8 U.S.C. 1714; (3) the diversity visa lottery 
fee, see Omnibus Consolidated Appropriations Act, 1997, Public Law 104-
208, div. C, Title VI, section 636, reproduced at 8 U.S.C. 1153 (note); 
(4) the fee for an affidavit of support, see Consolidated 
Appropriations Act, 2000, Public Law 106-113, 113 Stat. 1501, div. A, 
Title II, section 232(a), reproduced at 8 U.S.C. 1183a (note); and (5) 
the fee to process requests from participants in the Department's 
Exchange Visitor Program for a waiver of the two-year home-residence 
requirement, see 22 U.S.C. 1475e. The Department also has available 
one-third of total annual revenue collected from fraud prevention and 
detection fees charged to applicants for H- and L-category visas to pay 
for H and L visa fraud prevention and detection related activities. 8 
U.S.C. 1184(c)(12), 1356(v)(2)(A).
    The Department last changed MRV and BCC fees in an interim final 
rule dated May 20, 2010. See Department of State Schedule of Fees for 
Consular Services, Department of State and Overseas Embassies and 
Consulates, 22 CFR part 22 [75 FR 28188 (Public Notice 7018)]. This 
rule changed the non-petition-based nonimmigrant visa (MRV) fee and BCC 
fee for Mexican citizens age 15 and over from $131 to $140, the BCC fee 
for BCCs issued to certain Mexican citizen minors from $13 to $14, the 
E visa fee from $131 to $390, the K visa fee from $131 to $350 and the 
H, L, O, P, Q and R visa fee from $131 to $150. Those changes to the 
Schedule went into effect June 4, 2010. The final rule was published on 
December 6, 2011 (76 FR 76032).
    The Department last changed immigrant visa fees in an interim final 
rule dated June 28, 2010. See Department of State Schedule of Fees for 
Consular Services, Department of State and Overseas Embassies and 
Consulates, 22 CFR part 22 [75 FR 36522 (Public Notice 7068)]. A final 
rule regarding those fees was published on February 2, 2012. See 77 FR 
5177. This rule established a tiered application processing fee for 
immigrant visas, based on the cost to the U.S. government of processing 
that particular category of visa. Those changes to the Schedule went 
into effect July 13, 2010.
    Some fees in the Schedule, including Items 20(a) and (b), 31(a) and 
(b) and 35(c), are set by the Department of Homeland Security (DHS). 
These DHS fees were most recently updated by that agency on November 
23, 2010, and are subject to change in the future. See 75 FR 58962. The 
Department lists these DHS fees in the Department Schedule of Fees for 
cashiering purposes only. The Department has no authority to set DHS 
fees, which are listed at 8 CFR 103.7(b)(1).

Why is the department raising the nonimmigrant visa and immigrant visa 
fees at this time?

    Consistent with OMB Circular A-25 guidelines, the Department 
recently completed a fee review using its activity-based Cost of 
Service Model. This review was conducted from August 2010 through 
December 2011 and provides the basis for updating the Schedule. The 
results of that review are outlined in this rule.
    Similar to the 2009 fee review, upon which the current Schedule is 
based, costs are generated by an activity-based cost model that takes 
into account all costs to the U.S. government. Unlike a typical 
accounting system, which accounts for only traditional general-ledger-
type costs such as salaries, supplies, travel and other business 
expenses, activity-based cost models measure the costs of activities, 
or processes, and then provide an additional view of costs by the 
products and services produced by an organization through the 
identification of the key cost drivers of the activities. Below is a 
description of Activity-Based Costing from the Supplemental Notice of 
Proposed Rulemaking published on March 24, 2010, 75 FR 14111.

Activity-Based Costing Generally

    OMB Circular A-25 states that it is the objective of the United 
States Government to ``(a) ensure that each service, sale, or use of 
Government goods or resources provided by an

[[Page 18909]]

agency to specific recipients be self-sustaining; [and] (b) promote 
efficient allocation of the Nation's resources by establishing charges 
for special benefits provided to the recipient that are at least as 
great as costs to the Government of providing the special benefits * * 
*.'' OMB Circular A-25, ] 5(a)-(b); see also 31 U.S.C. 9701(b)(2)(A) 
(agency ``may prescribe regulations establishing the charge for a 
service or thing of value provided by the agency * * * based on * * * 
the costs to the Government * * *.''). To set prices that are ``self-
sustaining,'' the Department must determine the true cost of providing 
consular services. Following guidance provided in Statement 4 of OMB's 
Statement of Federal Accounting Standards (SFFAS), available at http://www.fasab.gov/pdffiles/sffas-4.pdf, the Department chose to develop and 
use an activity-based costing (ABC) model to determine the true cost of 
the services listed in its Schedule of Fees, both those whose fee the 
Department proposes to change, as well as those whose fee will remain 
unchanged from prior years. The Department refers to the specific ABC 
model that underpins the proposed fees in the above-referenced rules as 
the ``Cost of Service Model'' or ``CoSM.''
    The Government Accountability Office (GAO) defines activity-based 
costing as a ``set of accounting methods used to identify and describe 
costs and required resources for activities within processes.'' Because 
an organization can use the same staff and resources (computer 
equipment, production facilities, etc.) to produce multiple products or 
services, ABC models seek to precisely identify and assign costs to 
processes and activities and then to individual products and services 
through the identification of key cost drivers referred to as 
``resource drivers'' and ``activity drivers.''

    Example: Imagine a government agency that has a single facility 
it uses to prepare and issue a single product--a driver's license. 
In this simple scenario, every cost associated with that facility 
(the salaries of employees, the electricity to power the computer 
terminals, the cost of a blank driver's license, etc.) can be 
attributed directly to the cost of producing that single item. If 
that agency wants to ensure that it is charging a ``self-
sustaining'' price for driver's licenses, it only has to divide its 
total costs for a given time period by an estimate of the number of 
driver's licenses to be produced during that same time period.
    However, if that agency issues multiple products (driver's 
licenses, non-driver ID cards, etc.), has employees that work on 
other activities besides licenses (for example, accepting payment 
for traffic tickets), and operates out of multiple facilities it 
shares with other agencies, it becomes much more complex for the 
agency to determine exactly how much it costs to produce any single 
product. In those instances, the agency would need to know what 
percent of time its employees spend on each service and how much of 
its overhead (rent, utilities, facilities maintenance, etc.) are 
consumed in delivering each service to determine the cost of 
producing each of its various products--the driver's license, the 
non-driver ID card, etc. Using an ABC model would allow the agency 
to develop those costs.

Components of Activity-Based Costing

    As noted in SFFAS Statement 4, ``activity-based costing has gained 
broad acceptance by manufacturing and service industries as an 
effective managerial tool.'' SSFAS Statement 4,] 147. There are no 
``off-the-shelf'' ABC models that allow the Department (or any other 
entity) to simply populate a few data points and generate an answer. 
ABC models require financial and accounting analysis and modeling 
skills combined with a detailed understanding of all the organization's 
business processes, which, in an entity the size of the Department's 
Bureau of Consular Affairs, are exceedingly complex. More specifically, 
ABC models require an organization to:
     Identify all of the activities that are required to 
produce a particular product or service (``activities'');
     Identify all of the resources consumed (costs) in the 
course of producing that product or service (``resources'');
     Measure the quantity of resources consumed (``resource 
driver''); and
     Measure the frequency and intensity of demand placed on 
activities to produce services (``activity driver'').
     For more information, SFFAS Statement 4 provides a 
detailed discussion of the use of cost accounting by the U.S. 
Government.
    Although the Department has used a sophisticated and detailed ABC 
model to set fees for a number of years, in its October 10, 2007, 
report ``Transparent Cost Estimates Needed to Support Passport 
Execution Fee Decisions,'' available at http://www.gao.gov/products/GAO-08-63, the GAO asked the Department to expand the sophistication of 
its cost model by identifying even more discrete activities and 
modeling a broader array of products and services. To provide this 
additional detail, the Department launched a multi-year plan to refine 
the CoSM with the help of a team of experienced outside consultants led 
by The QED Group, LLC, and including Booz Allen Hamilton, Inc. as a 
subcontractor. The consultant team was made up of experts in cost 
modeling capable of providing an objective, outside assessment of 
costs.
    For additional details on an activity-based cost model, see the 
Supplemental Notice of Proposed Rulemaking published on March 24, 2010, 
75 FR 14111.
    Although much of the modeling methodology has remained the same 
between fee reviews, the methodology for capturing Department 
historical support costs and projected costs has been updated to 
reflect the change in the Department's workload. In order to accurately 
account for the costs associated with rapidly growing demand in 
locations such as China and Brazil, the current fee review also 
incorporates five years of projected costs rather than only two years, 
included in the 2009 fee review. By using five years of projected 
costs, the Department better captures the long-term costs of large 
investments. The new fees represent a weighted average of the annual 
costs by service for fiscal years 2012-2015. Costs for individual 
fiscal years were weighted by the projected workload volume for that 
year. These weighted costs by fiscal year were then added together to 
generate a single cost per service upon which the fees are determined.
    Some of the long-term costs mentioned above include, but are not 
limited to, Consular Adjudicator Limited Non-career Appointment (LNAs) 
program costs, consular Locally Employed Staff costs, overseas 
facility-related costs, better-defined Global Support Strategy (GSS) 
costs, and more transparent consular-related International Cooperative 
Administrative Support Services (ICASS) costs. The Department will also 
add approximately 100 new American consular positions to increase visa-
adjudication capacity in China and Brazil in 2012-13. Included in that 
number will be Mandarin and Portuguese-speaking adjudicators hired in 
the Consular Adjudicator LNA Program. The Consular Adjudicator LNA 
Program is a new program to increase the number of visa adjudicators by 
hiring persons who already have foreign language skills. The first 
group of 19 LNAs will arrive in China and Brazil in early spring 2012, 
with a second group to follow in summer 2012. Additional Locally 
Employed Staff will be hired at posts in China and Brazil to support 
the additional adjudicators. These new personnel add to the 
Department's salary, benefits, and overseas support services (e.g. 
office space, housing, security, and information technology) costs.

[[Page 18910]]

    In addition to adding personnel in these countries, the Department 
will also be improving the physical plant for visa applicants and 
staff. To improve operational efficiency in Missions China and Brazil, 
the Department plans to expand or remodel existing consular facilities 
in China and Brazil.
    Better defined and increased costs are reflected in the CoSM for 
the worldwide deployment of both the GSS and ICASS. GSS is a 
consolidated global contract for purchasing services associated with 
visa processing such as appointment scheduling, fee collection, offsite 
data collection, and delivery services. The GSS contract replaces, over 
a three-year period and through multiple task orders, the current 
patchwork of user-pays service agreements with a consistent, 
transparent, and more secure approach to facilitating applicants 
through the visa process. ICASS is the system by which administrative 
costs are allocated and paid by various U.S. government agencies to 
support their U.S. personnel stationed at embassies and consulates 
around the world. ICASS services include, but are not limited to, such 
items as computer support, security screening, medical assistance, and 
accounting services. In addition to the change in support cost and 
projected cost methodology, the CoSM now breaks out services performed 
on behalf of other government agencies to provide greater transparency 
into Department costs. All of the components referenced above have been 
updated and included in the CoSM to ensure the Department is fully 
covering its costs. The fees amended in this rule will cover the 
Department's costs associated with processing the estimated 10.5 
million nonimmigrant visas and one million immigrant visas projected 
for Fiscal Year 2012.

Nonimmigrant Visa Application and Border Crossing Card Processing Fees

    The Department has determined, based on the CoSM, that the fee for 
non-petition-based MRV (except E category) and BCC applications, with 
the exception of the statutorily set $15 BCC fee for certain Mexican 
citizen minors, is going from $140 to $160. This fee adequately 
accounts for the average cost to the U.S. government of accepting, 
processing, adjudicating, and issuing a non-petition-based MRV 
application. The CoSM arrived at the $160 figure by taking into account 
historical and five years of projected costs of worldwide nonimmigrant 
visa operations, visa workload, and other related costs. This $160 fee 
will allow the U.S. government to recover the full cost of processing 
these visa applications during the anticipated period of this new 
Schedule, and to comply with its statutory obligation to collect the $1 
Wilberforce Act surcharge and $1 HIV/AIDS/TB/Malaria surcharge. Those 
surcharges do not off-set the cost of processing MRVs and BCCs and are 
in addition to the cost-based fees charged for MRVs and BCCs. The 
Department rounded to the nearest $10 (up and down) to make it easier 
for U.S. embassies and consulates to convert to foreign currencies, 
which are commonly used to pay these fees.
    For all applicants other than those Mexican citizen minors who 
qualify for the reduced fee BCC, the BCC fee is being raised to $160 
because the document has almost identical processing procedures and is 
the functional equivalent of the MRV that all other nonimmigrant visa 
applicants receive.
    This cost also includes the unrecovered costs of processing BCCs 
for certain Mexican citizen minors. That application processing fee is 
statutorily frozen at $13, even though such BCCs cost the Department 
the same amount to process as all other MRVs and BCCs--that is, 
significantly more than $13. See Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999, Public Law 105-277, 112 Stat. 
2681-50, div. A, Title IV, section 410, reproduced at 8 U.S.C. 1351 
(note). Adding the $1 Wilberforce surcharge and the $1 HIV/AIDS/TB/
Malaria surcharge brings the total fee for certain Mexican citizen 
minor BCCs to $15. The Department's costs beyond $13 must, by statute, 
be recovered by charging more for all MRVs, as well as all BCCs not 
meeting the requirements for the reduced fee. See Omnibus Consolidated 
and Emergency Supplemental Appropriations Act of 1999, Public Law 105-
277, 112 Stat. 2681-50, div. A, Title IV, section 410(a)(3), reproduced 
at 8 U.S.C. 1351 (note) (requiring that the Department ``shall set the 
amount of the fee [for processing MRVs and all other BCCs] at a level 
that will ensure the full recovery by the Department * * * of the costs 
of processing'' all MRVs and BCCs, including reduced cost BCCs for 
qualifying Mexican citizen minors).
    The cost to the Department to accept, adjudicate and issue each of 
the different MRV categories varies. The effort related to some 
categories such as: E (treaty-traders or treaty-investors); H 
(temporary workers and trainees); K (fianc[eacute](e)s and certain 
spouses of U.S. citizens); L (intra-company transferee); O (aliens with 
extraordinary ability); P (athletes, artists, and entertainers); Q 
(cultural exchange visitors); and R (aliens in religious occupations) 
is appreciably higher. Each of those visa categories requires a review 
of extensive documentation and a more in-depth applicant interview than 
BCCs and other categories of MRVs. As in the previous fee rule, the 
Department has again concluded that it is more equitable to those 
applying for BCCs and other categories of MRVs, for which such 
extensive review is not necessary, to continue collecting separate fees 
that more accurately reflect the cost of processing each type of visa. 
See 74 FR 66076 (Public Notice 6851). Therefore, this rule amends the 
following fees for those categories to correspond to projected cost 
figures for that visa category, as determined by the CoSM and 
incorporating the $1 Wilberforce surcharge and $1 HIV/AIDS/TB/Malaria 
surcharge (discussed above in greater detail):

H, L, O, P, Q and R: increasing from $150 to $190
E: decreasing from $390 to $270
K: decreasing from $350 to $240

    Again, the Department rounded these fees to the nearest $10 for the 
ease of converting to foreign currencies, which are most often used to 
pay the fee.

Immigrant Visa Application Processing Fees

    In addition to the nonimmigrant fee modifications referenced above, 
the Department is adjusting the four-tiered immigrant visa application 
processing fees based on CoSM calculation for each discrete category of 
immigrant visa, as applications for certain categories cost more to 
process than others. Accordingly, the application processing fee for a 
Family-Based Visa (immediate relative and family preference, processed 
on the basis of an I-130, I-600 or I-800 petition) will be decreasing 
from $330 to $230. The application processing fee for an Employment-
Based Visa (processed on the basis of an I-140 petition) will be 
decreasing from $720 to $405. Other Immigrant Visa applications 
(including for I-360 self-petitioners, special immigrant visa 
applicants and all others) will have a fee of $220, formerly $305. As 
noted above, certain qualifying Iraqi and Afghan Special Immigrant Visa 
applicants are statutorily exempt from paying an application processing 
fee. National Defense Authorization Act for Fiscal Year 2008, Public 
Law 110-181, div. A, Title XII, section 1244(d), reproduced at 8 U.S.C. 
1157 (note); Omnibus Appropriations Act, 2009, Public Law 111-8, div. 
F, Title VI, section 602(b)(4), reproduced at 8 U.S.C. 1101 (note). 
Please note that the Immigrant Visa Security Surcharge of $75 is 
embedded in the immigrant visa application

[[Page 18911]]

processing fee and will no longer be charged as a standalone fee or set 
forth as a separate fee on the Schedule.

Immigrant Visa Security Surcharge

    The Department is increasing the Immigrant Visa Security Surcharge, 
which is applicable to all applicants except those persons who are 
statutorily exempted from paying fees, from $74 to $75 for ease of 
converting to foreign currencies. The Immigrant Visa Security Surcharge 
covers security costs as determined by the CoSM to be associated with 
providing enhanced border security. See 8 U.S.C. 1714 and Department of 
State Authorities Act of 2006, Public Law 109-472, 120 Stat. 3554, 
section 6, reproduced at 8 U.S.C. 1714 (note). Please note that the 
Immigrant Visa Security Surcharge of $75 is embedded in the 
aforementioned immigrant visa application processing fee and will no 
longer be charged as a standalone fee or set forth as a separate fee on 
the Schedule.

Diversity Visa Lottery Fee

    The Department is decreasing the fee paid by Diversity Visa Lottery 
selectees who apply for immigrant visas from $440 to $330 based on CoSM 
calculations for a FY 2012 workload projection of approximately 100,000 
applications. The Department has authority to collect and retain a fee, 
known as the ``Diversity Visa Lottery fee,'' to recover (a) the costs 
of allocating diversity immigrant visas described in INA section 203(c) 
[8 U.S.C. 1153], through the diversity visa lottery program, set forth 
in INA Sec.  204(a)(1)(I) [8 U.S.C. 1154(a)(1)(I)], and (b) the costs 
of processing all applications for diversity immigrant visas (i.e., 
``Diversity Visas'') submitted by selectees of the diversity visa 
lottery. Omnibus Consolidated Appropriations Act of 1997, Public Law 
104-208, 110 Stat. 3009-703, div. C, Title VI, section 636, reproduced 
at 8 U.S.C. 1153 (note). The Department collects this fee only from 
those persons who, having been selected through the lottery process, 
are applying for a Diversity Visa. The Diversity Visa Lottery fee 
encompasses the costs of processing the immigrant visa application and 
the embedded immigrant visa security surcharge. Accordingly, the 
Department does not charge the separate Other Immigrant Visa 
Application Processing Fee or Immigrant Visa Security Surcharge to 
Diversity Visa applicants.
    Thus, 22 CFR 42.33(i) is amended to provide that the consular 
officer must collect from each person who is selected by the Diversity 
Visa Lottery program and who applies for a Diversity Visa the Diversity 
Visa Lottery fee as prescribed by the Secretary of State and set forth 
in the Schedule of Fees found at 22 CFR 22.1.

Determining Returning Resident Status

    The CoSM found that determining the status of people who claim to 
be lawful permanent residents of the United States, but do not have 
documentation to prove this fact, has become less costly due to 
advances in automation making it easier to verify U.S. immigration 
status. As such, the Department will lower the fee from $380 to $275.

Transportation Letter for Lawful Permanent Residents of the United 
States

    The Department is removing the issuance of Transportation Letters 
for Lawful Permanent Residents from the Schedule. The Department is 
working with DHS on procedures and fees relating to this service.

When will the Department of State implement this interim final rule?

    The Department intends to implement this interim final rule, and 
initiate collection of the fees set forth herein, effective April 13, 
2012.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as an interim final rule, 
with a 60-day provision for post-promulgation comments and with an 
effective date less than 30 days from the date of publication, based on 
the ``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 
553(d)(3). Delaying implementation of this rule would be contrary to 
the public interest because the fees in this rule fund consular 
services that are critical to national security, including screening 
visa applicants. In addition, the Department will not be able to 
sustain the anticipated growth in consular overseas operations if these 
fees are not effective within 15 days of publication.

Regulatory Flexibility Act

    The Department has reviewed this rule and, by approving it, 
certifies that it will not have a significant economic impact on a 
substantial number of small entities as defined in 5 U.S.C. 601(6). 
This rule adjusts the application processing fees for nonimmigrant and 
immigrant visas. Although the issuance of some of these visas is 
contingent upon approval by DHS of a petition filed by a United States 
company with DHS, and these companies pay a fee to DHS to cover the 
processing of the petition, the visa itself is sought and paid for by 
an individual foreign national overseas who seeks to come to the United 
States. The amount of the petition fees that are paid by small entities 
to DHS is not controlled by the amount of the visa fees paid by 
individuals to the Department of State. While small entities may cover 
or reimburse employees for application processing fees, the exact 
number of such entities that do so is unknown. The adjustment in 
petition fees accounts for only seven percent of the total nonimmigrant 
workload expected in FY 2012; therefore, the $40 increase in the 
application processing fee for Employment-Based nonimmigrant visas is 
not likely to have a significant economic impact on the small entities 
that choose to reimburse the applicant for the visa fee.
    Additionally, the Department of State does not track applications 
for Employment-Based visas by the size and nature of the petitioning 
businesses, and therefore cannot identify the share of this impact on 
the small businesses versus large businesses. However, the estimated 
impact of the decrease in the application processing fee for the 27,149 
total Employment-Based visa applications expected to be processed by 
the Department of State annually in FY 2012 is approximately $8.5 
million dollars. (Note: DHS processes domestic adjustment of status 
applications for approximately 90 percent of all Employment-Based 
immigrants; cases processed domestically do not pay Department of State 
fees.) Since this impact is well below the $100 million threshold and 
only a portion of these 27,179 applications would impact small 
businesses, the State Department believes this rule does not have a 
significant impact on a substantial number of small entities.

Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year, and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501-1504.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is a major rule as defined by section 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 
804(2) Pursuant to 5 U.S.C. 808(2), it is effective 15 days after the 
date of publication.

[[Page 18912]]

Executive Order 12866

    This rule is considered by the Department of State to be an 
economically significant regulatory action under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, this rule 
has been submitted to OMB for review.
    This rule is necessary in light of the Department of State's CoSM 
finding that the cost of processing nonimmigrant visas has increased 
since the fee was last amended in 2010. The Department is setting the 
nonimmigrant visa fees in accordance with 31 U.S.C. 9701 and other 
applicable legal authority, as described in detail above. See, e.g., 31 
U.S.C. 9701(b)(2)(A) (``The head of each agency * * * may prescribe 
regulations establishing the charge for a service or thing of value 
provided by the agency * * * based on * * * the costs to the 
government.''). This regulation sets the fees for nonimmigrant visas at 
the amount required to recover the costs associated with providing this 
service to foreign nationals.
    Details of the proposed fee changes are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated
                                                                                                                           annual number     Estimated
                        Item No.                          Proposed fee     Current fee    Change in fee     Percentage          of           change in
                                                                                                             increase      applications     annual fees
                                                                                                                                \1\        collected \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Schedule of Fees for Consular Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Nonimmigrant Visa Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
21. Nonimmigrant Visa Application and Border Crossing Card Processing Fees (per person):
    (a) Non-petition-based nonimmigrant visa (except E             $160            $140             $20               14       8,844,709    $176,894,180
     category).........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa.             190             150              40               27         757,954      30,318,160
    (c) E category nonimmigrant visa...................             270             390            (120)             -31          50,954      -6,114,480
    (d) K category nonimmigrant visa...................             240             350            (110)             -31          53,418      -5,875,980
    (e) Border crossing card--age 15 and over (10-year              160             140              20               14         585,065      11,701,294
     validity).........................................
    (f) Border crossing card--under age 15; for Mexican              15              14               1                7         238,971         238,971
     citizens if parent or guardian has or is applying
     for a border crossing card (valid for 10 years or
     until the applicant reaches age 15, whichever is
     earlier)..........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Immigrant and Special Visa Services
--------------------------------------------------------------------------------------------------------------------------------------------------------
32. Immigrant Visa Application Processing Fee (per person)
    (a) Immediate relative and family preference                    230             330            (100)             -30         925,450     -92,545,000
     applications......................................
    (b) Employment-based applications..................             405             720            (315)             -44          27,149      -8,551,935
    (c) Other immigrant visa applications (including I-             220             305             (85)             -28             139         -11,815
     360 self-petitioners and special immigrant visa
     applicants).......................................
33. Diversity Visa Lottery fee (per person applying as              330             440            (110)             -25         100,173     -11,019,030
 a result of the lottery program)......................
35. Special Visa Services:
    (a) Determining Returning Resident Status..........             275             380            (105)             -28           2,099        -220,395
                                                        ------------------------------------------------------------------------------------------------
        Total..........................................  ..............  ..............  ...............  ..............  ..............     948,139,701
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Based on projected FY 2012 workload.
\2\ Using projected FY 2012 workload to generate projections.

    Historically, nonimmigrant visa workload has increased year to year 
at approximately 11 percent. The Department anticipates that with the 
current state of the global economy, demand will be approximately 10.5 
million in Fiscal Year 2012. With regard to the economic impact as a 
whole, the more than 93 percent of nonimmigrant visa applications that 
are not petition-based are sought by and paid for entirely by foreign 
national applicants. The revenue increases resulting from those fees 
should not be considered to have a direct cost impact on the domestic 
economy.
    With regard to immigrant visas, many categories are numerically 
capped by law; these caps limit workload and keep current demand fairly 
stable. In FY 2011, the Department issued 10.8 percent of all available 
immigrant visas in Employment-Based categories (capped at 140,000 
including adjustments of status processed domestically by the DHS). In 
FY 2011, the Department issued 96.8 percent of

[[Page 18913]]

the immigrant visas available under the Diversity Visa program (capped 
at 50,000 including adjustments of status processed domestically by 
DHS). Also in FY 2011, the Department issued 87.3 percent of the 
immigrant visas available for Family-Preference categories (capped at 
226,000 including adjustments of status processed domestically by DHS). 
When fewer visas were issued than were available under the numerical 
cap, it was generally due to administrative processing issues rather 
than lack of demand. There are nearly 4.7 million applicants currently 
awaiting numerically controlled visas, sufficient to fill more than 12 
years' workload at the current annual caps and this does not take into 
account applicants who would be adjusting status in the United States. 
It is reasonable to expect that the immigrant visa workload for FY 2012 
and FY 2013 will remain about the same as FY 2011. Please note that 
these estimates do not take into account variables that the Department 
cannot predict at this time, such as legislative changes.

Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

Executive Orders 12372 and 13132

    This regulation will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement. The 
regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on federal programs and activities do 
not apply to this regulation.

Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not preempt tribal law. 
Accordingly, the requirements of section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements.

List of Subjects

 22 CFR Part 22

    Passports and visas.

22 CFR Part 42

    Immigration, Passports and visas.

    Accordingly, for the reasons stated in the preamble, 22 CFR parts 
22 and 42 are amended as follows:

PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF 
STATE AND FOREIGN SERVICE

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

    Authority:  8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 
1351 note, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 
22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 4219, 
6551; 31 U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957); Exec. 
Order 11,295, 31 FR 10603 (1966).

0
2. Section 22.1 is amended in the table by:
0
a. Adding entry 20 and revising entries 21 through 25 under 
``Nonimmigrant Visa Services; and
0
b. Revising entries 31 through 35 under ``Immigrant and Special Visa 
Services.''
    The addition and revisions read as follows:

Sec.  22.1  Schedule of Fees.

                                     Schedule of Fees for Consular Services
----------------------------------------------------------------------------------------------------------------
                      Item No.                                                   Fee
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                           Nonimmigrant Visa Services
----------------------------------------------------------------------------------------------------------------
20. Filing Nonimmigrant Visa Petition Based on       For fee amount, see 8 CFR 103.7(b)(1).
 Blanket L Petition (collected for USCIS and
 subject to change).
    (a) Petition for a nonimmigrant worker (Form I-  For fee amount, see 8 CFR 103.7(b)(1).
     129).
    (b) Nonimmigrant petition based on blanket L     For fee amount, see 8 CFR 103.7(b)(1).
     petition.
21. Nonimmigrant Visa Application and Border
 Crossing Card Processing Fees (per person):
    (a) Non-petition-based nonimmigrant visa         $160.
     (except E category).
    (b) H, L, O, P, Q and R category nonimmigrant    $190.
     visa.
    (c) E category nonimmigrant visa...............  $270.
    (d) K category (fianc[eacute]) nonimmigrant      $240.
     visa.
    (e) Border crossing card--age 15 and over (10    $160.
     year validity).
    (f) Border crossing card--under age 15; for      $15.
     Mexican citizens if parent or guardian has or
     is applying for a border crossing card (valid
     10 years or until the applicant reaches age
     15, whichever is sooner).
22. EXEMPTIONS from Nonimmigrant Visa Application
 Processing Fee:
    (a) Applicants for A, G, C-3, NATO and           NO FEE.
     diplomatic visas as defined in 22 C.F.R. 41.26.
    (b) Applicants for J visas participating in      NO FEE.
     official U.S. Government sponsored educational
     and cultural exchanges.
    (c) Replacement machine-readable visa when the   NO FEE.
     original visa was not properly affixed or
     needs to be reissued through no fault of the
     applicant.
    (d) Applicants exempted by international         NO FEE.
     agreement as determined by the Department,
     including members and staff of an observer
     mission to United Nations Headquarters
     recognized by the UN General Assembly, and
     their immediate families.
    (e) Applicants traveling to provide charitable   NO FEE.
     services as determined by the Department.
    (f) U.S. government employees traveling on       NO FEE.
     official business.

[[Page 18914]]

 
    (g) A parent, sibling, spouse, or child of a     NO FEE.
     U.S. government employee killed in the line of
     duty who is traveling to attend the employee's
     funeral and/or burial; or a parent, sibling,
     spouse, son, or daughter of a U.S. government
     employee critically injured in the line of
     duty for visitation during emergency treatment
     and convalescence.
23. Nonimmigrant Visa Issuance Fee, including        RECIPROCAL.
 Border-Crossing Cards (Reciprocity Fee).
24. EXEMPTIONS from Nonimmigrant Visa Issuance Fee:
    (a) An official representative of a foreign      NO FEE.
     government or an international or regional
     organization of which the U.S. is a member;
     members and staff of an observer mission to
     United Nations Headquarters recognized by the
     UN General Assembly; and applicants for
     diplomatic visas as defined under item 22(a);
     and their immediate families.
    (b) An applicant transiting to and from the      NO FEE.
     United Nations Headquarters.
    (c) An applicant participating in a U.S.         NO FEE.
     government sponsored program.
    (d) An applicant traveling to provide            NO FEE.
     charitable services as determined by the
     Department.
25. Fraud Prevention and Detection Fee for Visa      $500.
 Applicant included in L Blanket Petition
 (principal applicant only).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                       Immigrant and Special Visa Services
----------------------------------------------------------------------------------------------------------------
31. Filing Immigrant Visa Petition (collected for
 USCIS and subject to change):
    (a) Petition to classify status of alien         For fee amount, see 8 CFR 103.7(b)(1).
     relative for issuance of immigrant Visa.
    (b) Petition to classify orphan as an immediate  For fee amount, see 8 CFR 103.7(b)(1).
     relative.
32. Immigrant Visa Application Processing Fee (per
 person):
    (a) Immediate relative and family preference     $230.
     applications.
    (b) Employment-based applications..............  $405.
    (c) Other immigrant visa applications            $220.
     (including I-360 self-petitioners and special
     immigrant visa applicants).
    (d) Certain Iraqi and Afghan special immigrant   NO FEE.
     visa applications.
33. Diversity Visa Lottery Fee (per person applying  $330.
 as a result of the lottery program).
34. Affidavit of Support Review (only when reviewed  $88.
 domestically).
35. Special Visa Services:
    (a) Determining Returning Resident Status......  $275.
    (b) Waiver of two year residency requirement...  $215.
    (c) Waiver of immigrant visa ineligibility       For fee amount, see 8 CFR 103.7(b)(1).
     (collected for USCIS and subject to change).
    (d) Refugee or significant public benefit        NO FEE.
     parole case processing.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
3. The authority citation continues to read as follows:

    Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-
449; 112 Stat. 2681-795 through 2681-801; The Convention on 
Protection of Children and Co-operation in Respect of Intercountry 
Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 
(1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry 
Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.

0
4. Revise Sec.  42.33(i) to read as follows:

Sec.  42.33  Diversity immigrants.

* * * * *
    (i) Diversity Visa Lottery fee. Consular officers shall collect, or 
ensure the collection of, the Diversity Visa Lottery fee from those 
persons who apply for a diversity immigrant visa, described in INA 
203(c), after being selected by the diversity visa lottery program. The 
Diversity Visa Lottery fee, as prescribed by the Secretary of State, is 
set forth in the Schedule of Fees, 22 CFR 22.1.

    Dated: March 22, 2012.
Patrick F. Kennedy,
Under Secretary of State for Management, U.S. Department of State.
[FR Doc. 2012-7569 Filed 3-28-12; 8:45 am]
BILLING CODE 4710-06-P
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