58962 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 103, 204, 244, and 274A 

[CIS No. 2490–09, DHS Docket No. USCIS– 

2009–0033] 

RIN 1615–AB80 

U.S. Citizenship and Immigration 

Services Fee Schedule 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) is adjusting the fee 

schedule for U.S. Citizenship and 

Immigration Services (USCIS). USCIS 

conducted a comprehensive fee study, 

refined its cost accounting process, and 

determined that current fees do not 

recover the full costs of services 

provided. DHS has found that 

adjustment to the fee schedule is 

necessary to fully recover costs and 

maintain adequate service. In response 

to comments, several adjustments were 

made to the proposed rule published on 

June 11, 2010. 

In this final rule, DHS: increases the 

fees by a weighted average of 10 

percent; establishes three new fees 

covering USCIS costs related to 

processing the Regional Center 

Designation under the Immigrant 

Investor Pilot Program, Civil Surgeon 

Designation, and DHS Processing of 

Immigrant Visa requests; and adjusts the 

premium processing service fee by the 

percentage increase in inflation 

according to the Consumer Price 

Index—Urban Consumers (CPI–U) 

published as of July 2010. This rule also 

finalizes the interim rule that 

established the premium processing 

service and fees. 

DATES: This rule is effective November 

23, 2010. Applications or petitions 

mailed, postmarked, or otherwise filed 

on or after November 23, 2010 must 

include the new fee. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Rosado, Acting Chief Financial 

Officer, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., Washington, DC 20529– 

2130, telephone (202) 272–1930. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background. 

II. Final Rule. 

A. Changes in the Final Rule. 

B. Corrections. 

C. Summary of Final Fees. 

III. Public Comments on the Proposed Rule. 

A. Authority to Promulgate Fees. 

1. Immigration and Nationality Act Section 

286(m). 

2. Biometrics for Temporary Protected 

Status. 

3. Bundling. 

4. Fraud Detection and National Security 

and other Program Costs. 

5. Guidance under Office of Management 

and Budget Circulars. 

6. Accounting Standards. 

B. Relative Amount of Fees. 

1. Recovery of Additional Costs. 

2. Proposed Fees are Unreasonably High. 

a. Barrier to Family Reunification. 

b. Fee Increases Reduce the Number of 

Filers. 

c. Income–Based Fee Structure. 

d. Supplementary Costs to Applicants and 

Petitioners. 

3. Comments on Specific Fees and 

Adjustments. 

a. Student Employment Authorization. 

b. Entertainers, Athletes, and other 

Individuals with Extraordinary Talent. 

c. Adoption. 

d. Entrepreneurs. 

e. Refugee Travel Documents. 

4. Fee Decreases. 

C. Fee Waivers and Exemptions. 

1. Asylee Benefits and Status Adjustment. 

2. Expansion of Fee Waivers and 

Exemptions. 

a. Travel and Employment Authorization 

Documents and Immigrant Visas. 

b. Waiver Eligibility for Notices of Appeal 

or Motions. 

c. Military Naturalizations. 

d. Arrival–Departure Records. 

3. Standardization of the Fee Waiver 

Process. 

4. Commonwealth of the Northern Mariana 

Islands Transitional Worker. 

D. Naturalization. 

E. Improve Service and Reduce 

Inefficiencies. 

1. Service Improvement and Fees. 

2. Multiple Biometric Data Requests. 

3. Transformation. 

4. Increases Relative to Time. 

5. Fee Refunds. 

6. Customer Service and the Office of 

Public Engagement. 

F. Premium Processing. 

1. Expansion of Premium Processing 

Service. 

2. Adjustment to the Premium Processing 

Fee. 

G. New Fees and Forms. 

1. Immigrant Visa DHS Domestic 

Processing Fee. 

2. Civil Surgeon Designation Fee and Form. 

3. EB–5 Regional Center Designation Fee 

and Form. 

H. Methods Used To Determine Fee 

Amounts. 

1. Reductions to USCIS Costs. 

2. Appropriations. 

I. Other Comments. 

1. Visa Allocation and Unused Visa 

Numbers. 

2. Increased Periods of Validity for Travel 

and Employment Documents. 

3. Suggested I–94 Fee. 

J. Discussion of Comments Received in 

Response to the June 1, 2001, Interim 

Final Rule. 

IV. Statutory and Regulatory Reviews. 

A. Regulatory Flexibility Act– Final 

Regulatory Flexibility Analysis. 

1. Objectives of, and Legal Basis for, the 

Final Rule. 

2. Significant Issues Raised by Public 

Comments in Response to the Initial 

Regulatory Flexibility Analysis. 

3. Description and Estimate of the Number 

of Small Entities to which the Rule will 

Apply. 

4. Reporting, Recordkeeping, and Other 

Compliance Requirements. 

5. Steps Taken to Minimize Significant 

Adverse Economic Impacts on Small 

Entities. 

B. Unfunded Mandates Reform Act. 

C. Small Business Regulatory Enforcement 

Fairness Act. 

D. Executive Order 12866. 

E. Executive Order 13132. 

F. Executive Order 12988. 

G. Paperwork Reduction Act. 

List of Acronyms and Abbreviations 

ABC—Activity–Based Costing. 

CBP—U.S. Customs and Border Protection. 

CFO—Chief Financial Officer. 

CNMI—Commonwealth of the Northern 

Mariana Islands. 

CNRA—Consolidated Natural Resources Act. 

CPI–U—Consumer Price Index—Urban 

Consumers. 

DHS—Department of Homeland Security. 

DOS—Department of State. 

EAD—Employment Authorization Document. 

FASAB—Federal Accounting Standards 

Advisory Board. 

FBI—Federal Bureau of Investigation. 

FDNS—Fraud Detection and National 

Security. 

FRFA—Final Regulatory Flexibility Analysis. 

FY—Fiscal Year. 

HSA—Homeland Security Act. 

IEFA—Immigration Examinations Fee 

Account. 

INA—Immigration and Nationality Act. 

IOAA—Independent Offices Appropriation 

Act. 

IRFA—Initial Regulatory Flexibility Analysis. 

NNCP—National Name Check Program. 

OMB—Office of Management and Budget. 

OPE—Office of Public Engagement. 

OPT—Optional Practical Training. 

PRA—Paperwork Reduction Act. 

POE—Port of Entry. 

RFA—Regulatory Flexibility Act. 

RFE—Request for Evidence. 

SAVE—Systematic Alien Verification for 

Entitlements. 

SMI—Secure Mail Initiative. 

SQA—System Qualified Adjudication. 

TPS—Temporary Protected Status. 

UMRA—Unfunded Mandates Reform Act. 

USCIS—U.S. Citizenship and Immigration 

Services. 

USPS—United States Postal Service. 

VAWA—Violence Against Women Act. 

I. Background 

DHS proposed to adjust the USCIS 

benefits fee schedule on June 11, 2010. 

See 75 FR 33445. The current USCIS fee 

schedule does not recoup the full cost 

of processing immigration benefits. This 


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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 58963 

final rule builds on the 2008/2009 

USCIS fee rule that sought to align fees 

with the costs of specific application 

types and make adjustments to some 

fees based on policy considerations. 

This final rule also reflects FY 2010 

appropriations to remove asylum, 

refugee, and military naturalization 

costs from the fee structure. See 75 FR 

33445, 33447. Previously, surcharges 

were added to immigration fees to 

recover the cost of adjudicating asylum, 

refugee, and military naturalization 

requests. Costs for the Systematic Alien 

Verification for Entitlements (SAVE) 

program and the Office of Citizenship 

were also supported by fee revenue. The 

Administration’s fee reform policy, as 

reflected in the Administration’s budget 

request, moves all of these costs out of 

the USCIS fee structure to appropriated 

funds and improves the transparency of 

USCIS fees. 

USCIS entered supporting 

documentation for this rulemaking and 

its methodology, including budget 

methodology and regulatory flexibility 

analyses, into the public docket. See 

http://www.regulations.gov, docket 

number USCIS–2009–0033. 

II. Final Rule 

A. Changes in the Final Rule 

DHS is adopting the proposed rule 

with changes, both in response to 

comments and as a result of new 

information. The explanations of the 

changes are discussed in the sections 

dealing with comments and the subject 

matter of the change. No modification to 

the final fees is made as a result of these 

changes. The changes that DHS is 

making to the final rule are summarized 

as follows: 

Clarify fee exemptions for requests for 

Civil Surgeon Designation. DHS will 

charge no fee for an application from a 

medical officer in the U.S. Armed 

Forces or civilian physician employed 

by the U.S. government who examines 

members of the U.S. Armed Forces, 

veterans of the Armed Forces, and their 

dependents at a U.S. military, 

Department of Veterans Affairs, or U.S. 

government facility in the United States. 

New 8 CFR 103.7(b)(1)(i)(SS). 

Reduce the fee for an Application for 

Travel Document, Form I–131, when it 

is filed to request a Refugee Travel 

Document. DHS has reduced the fee for 

an Application for Travel Document in 

the final rule to $135 for a Refugee 

Travel Document for an adult age 16 or 

older, and $105 for a child under the age 

of 16. DHS has decided also to permit 

the fee for an Application for Travel 

Document to be waived based on 

inability to pay when it is based on a 

request for Humanitarian Parole. New 8 

CFR 103.7(b)(1)(i)(M). 

Provide that the fee for the Notice of 

Appeal or Motion, Form I–290B, may be 

waived in certain cases. DHS will allow 

the fee for the Notice of Appeal or 

Motion to be waived upon a showing of 

inability to pay in those cases when the 

appeal or motion is from the denial of 

an immigration benefit request where 

the applicant or petitioner was not 

required to pay a fee or that fee was 

waived. New 8 CFR 103.7(c)(3)(vi). 

Provide for no fee for a Notice of 

Appeal or Motion for an appeal of a 

denial of a petition for a special 

immigrant visa from an Iraqi or Afghan 

national who worked for or on behalf of 

the U.S. Government in Iraq or 

Afghanistan. DHS believes it is keeping 

with the policy to assist this group of 

petitioners by allowing them to file a 

Notice of Appeal or Motion without a 

fee. New 8 CFR 103.7(b)(1)(i)(W). 

Provide for a free Request for Hearing 

on a Decision in Naturalization 

Proceedings, Form N–336, and an 

Application for Certification of 

Citizenship, Form N–600, to exempt 

from fees requests from a member or 

veteran of the U.S. Armed Forces. New 

8 CFR 103.7(b)(1)(i)(W), (AAA). USCIS 

is precluded by law from collecting a fee 

from members of the military for an 

Application for Naturalization under 

sections 328 and 329 of the Immigration 

and Nationality Act (INA). INA sections 

328(b) & 329(b), 8 U.S.C. 1439(b) & 

1440(b). DHS has decided to provide 

that military members are also exempt 

from the fee for these requests. 

B. Corrections 

DHS makes a number of technical 

corrections in this final rule. DHS does 

not make any changes to the final fees 

as a result of these corrections. In the 

preamble of the proposed rule, DHS 

included a table of those benefits 

requests that also required submission 

of biometrics and the related biometrics 

services fee. 75 FR 33445, 33461. USCIS 

failed to include the Application to 

Extend/Change Nonimmigrant Status, 

Form I–539, in the table of fees for 

immigration benefits that require 

biometric services in the proposed rule. 

Id. Applicants filing an Application to 

Extend/Change Nonimmigrant Status to 

request ‘‘V’’ nonimmigrant status are 

required to submit biometric 

information and pay the biometric fee. 

8 CFR 214.15(f)(1)((ii). A ‘‘V’’ visa is 

available for certain spouses and 

children of lawful permanent residents 

who have had a petition for an 

immigrant visa or application for 

naturalization pending for 3 years or 

more. INA section 101(a)(15(V), 8 U.S.C. 

1101(a)(15)(V). This is the only class of 

Application to Extend/Change 

Nonimmigrant Status (Form I–539) 

applicants that currently require 

biometric services. The fee for this 

application in this final rule is $290. 

New 8 CFR 103.7(b)(1(i)(X). The 

biometric fee is $85. New 8 CFR 

103.7(b)(1)(i)(C). As a result, the 

inclusive fee for filing an Application to 

Extend/Change Nonimmigrant Status 

(Form I–539) for V nonimmigrants is 

$375. USCIS also inadvertently did not 

include the Application for Suspension 

of Deportation or Special Rule 

Cancellation of Removal (Pursuant to 

Section 203 of Public Law 105–110), 

Form I–881, in the table of fees in the 

preamble to the proposed rule. This 

benefit request and its $285 fee are 

included in the table in this preamble 

for illustrative purposes. Finally, USCIS 

is removing the separate fee for filing an 

application for issuance or extension of 

a refugee travel document (Form I–570) 

because the refugee document process 

was consolidated into the application 

for travel documents (Form I–131), and 

the reference is obsolete. 

The William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008 requires DHS to permit aliens to 

apply for a waiver of any fees associated 

with filing an application for relief 

through final adjudication of the 

adjustment of status for relief by a 

Violence Against Women Act (VAWA) 

self-petitioner or under INA sections 

101(a)(15)(T) (T visas), 101(a)(15)(U) (U 

visas), 106 (battered spouses of A, G, E– 

3, or H nonimmigrants), 240A(b)(2) 

(battered spouse or child of a lawful 

permanent resident or U.S. citizen), and 

244(a)(3) (Temporary Protected Status) 

(as in effect on March 31, 1997). INA 

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

Public Law 110–457, section 122 Stat. 

5044 (Dec. 23, 2008); 22 U.S.C. 7101 et 

seq. This rule corrects the oversight 

from the proposed rule and provides 

that these groups or individuals may 

request a waiver of any USCIS fee to 

which they may be otherwise subjected. 

New 8 CFR 103.7(c)(3)(xvii). 

USCIS inadvertently did not include 

the Petition to Remove the Conditions of 

Residence, Form I–751, and the 

Application for Suspension of 

Deportation or Special Rule 

Cancellation of Removal (Pursuant to 

Section 203 of Pub. L. 105–110), Form 

I–881, in the list of forms currently 

eligible for fee waivers. Proposed 8 CFR 

103.7(c)(3); 75 FR 33445, 33487. These 

exclusions are corrected in this final 

rule. USCIS has determined that it will 

continue its policy of accepting fee 

waiver requests for Forms I–751 and I– 


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58964 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 

881. New 8 CFR 103.7(c)(3)(vii) and (xi); 

8 CFR 240.63(a). 

In the proposed rule, USCIS 

unintentionally replaced the word ‘‘or’’ 

in the fee for an Application to Register 

Permanent Residence or Adjust Status, 

Form I–485, with ‘‘and’’ in an attempt to 

simplify the language in current 8 CFR 

103.7(b)(1). Proposed 8 CFR 

103.7(b)(1)(U)(2). A discounted fee has 

previously been provided for ‘‘an 

applicant under the age of fourteen 

years when submitted concurrently for 

adjudication with the Form I–485 of a 

parent and the applicant is seeking to 

adjust status as a derivative of the 

parent, based on a relationship to the 

same individual who provides the basis 

for the parent’s adjustment of status, or 

under the same legal authority as the 

parent.’’ 8 CFR 103.7(b)(1). This 

proposed change would have eliminated 

the discount made available to certain 

children in the 2008/2009 fee rule. 

USCIS will continue to allow a child 

filing concurrently with a parent to pay 

the reduced fee when the child ‘‘is 

seeking to adjust status as a derivative 

of the parent, based on a relationship to 

the same individual who provides the 

basis for the parent’s adjustment of 

status, or under the same legal authority 

as the parent’’ and has restored that 

language to the regulatory text in this 

final rule. New 8 CFR 103.7(b)(1)(U)(2) 

C. Summary of Final Fees 

The current USCIS Immigration 

Benefit Request Fee Schedule and the 

fees adopted in this final rule are 

summarized in Table 1. DHS bases its 

final fees on the FY 2011 President’s 

Budget Request as outlined in the 

proposed rule, incorporating 

appropriated funding for refugee, 

asylum, and military naturalization 

processing, as well as the Office of 

Citizenship and the SAVE program. 75 

FR 33456. 

TABLE 1—IMMIGRATION BENEFIT REQUEST FEES

Form No. Title Current fees Final fees 

I–90 ................... Application to Replace Permanent Resident Card .......................................................................... $290 $365 

I–102 ................. Application for Replacement/Initial Nonimmigrant Arrival-Departure Document ............................. 320 330 

I–129/129CW .... Petition for a Nonimmigrant Worker ................................................................................................ 320 325 

I–129F ............... Petition for Alien Fiance ́(e) .............................................................................................................. 455 340 

I–130 ................. Petition for Alien Relative ................................................................................................................ 355 420 

I–131 ................. Application for Travel Document ..................................................................................................... 305 360 

I–140 ................. Immigrant Petition for Alien Worker ................................................................................................. 475 580 

I–191 ................. Application for Advance Permission to Return to Unrelinquished Domicile ................................... 545 585 

I–192 ................. Application for Advance Permission to Enter as Nonimmigrant ..................................................... 545 585 

I–193 ................. Application for Waiver of Passport and/or Visa ............................................................................... 545 585 

I–212 ................. Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal 545 585 

I–290B ............... Notice of Appeal or Motion .............................................................................................................. 585 630 

I–360 ................. Petition for Amerasian, Widow(er), or Special Immigrant ............................................................... 375 405 

I–485 ................. Application to Register Permanent Residence or Adjust Status ..................................................... 930 985 

I–526 ................. Immigrant Petition by Alien Entrepreneur ........................................................................................ 1,435 1,500 

I–539 ................. Application to Extend/Change Nonimmigrant Status ...................................................................... 300 290 

I–600/600A ........

I–800/800A ........

Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition.670 720 

I–601 ................. Application for Waiver of Ground of Excludability ........................................................................... 545 585 

I–612 ................. Application for Waiver of the Foreign Residence Requirement ...................................................... 545 585 

I–687 ................. Application for Status as a Temporary Resident under Sections 245A or 210 of the Immigration 

and Nationality Act.

710 1,130 

I–690 ................. Application for Waiver of Grounds of Inadmissibility ....................................................................... 185 200 

I–694 ................. Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act 545 755 

I–698 ................. Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of 

Pub. L. 99–603).

1,370 1,020 

I–751 ................. Petition to Remove the Conditions of Residence ............................................................................ 465 505 

I–765 ................. Application for Employment Authorization ....................................................................................... 340 380 

I–817 ................. Application for Family Unity Benefits ............................................................................................... 440 435 

I–824 ................. Application for Action on an Approved Application or Petition ........................................................ 340 405 

I–829 ................. Petition by Entrepreneur to Remove Conditions ............................................................................. 2,850 3,750 

I–881 ................. Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to 

Section 203 of Pub. L. 105–110).

285 285 

I–907 ................. Request for Premium Processing Service ....................................................................................... 1,000 1,225 

Civil Surgeon Designation ............................................................................................................... 0 615 

I–924 ................. Application for Regional Center under the Immigrant Investor Pilot Program ................................ 0 6,230 

N–300 ................ Application to File Declaration of Intention ...................................................................................... 235 250 

N–336 ................ Request for Hearing on a Decision in Naturalization Proceedings ................................................. 605 650 

N–400 ................ Application for Naturalization ........................................................................................................... 595 595 

N–470 ................ Application to Preserve Residence for Naturalization Purposes ..................................................... 305 330 

N–565 ................ Application for Replacement Naturalization/Citizenship Document ................................................ 380 345 

N–600/ ...............

600K ..................

Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate 

under Section 322.

460 600 

Immigrant Visa DHS Domestic Processing ..................................................................................... 0 165 

Biometrics .......... Capturing, Processing, and Storing Biometric Information ............................................................. 80 85 


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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 58965 

1 INA section 286(m), 8 U.S.C. 1356(m), provides, 

in pertinent part that notwithstanding any other 

provisions of law, all adjudication fees as are 

designated by the [Secretary of Homeland Security] 

in regulations shall be deposited as offsetting 

receipts into a separate account entitled 

‘‘Immigration Examinations Fee Account’’ in the 

Treasury of the United States, whether collected 

directly by the [Secretary] or through clerks of 

courts: Provided, however, * * *: Provided further, 

That fees for providing adjudication and 

naturalization services may be set at a level that 

will ensure recovery of the full costs of providing 

all such services, including the costs of similar 

services provided without charge to asylum 

applicants or other immigrants. Such fees may also 

be set at a level that will recover any additional 

costs associated with the administration of the fees 

collected. 

Paragraph (n) provides that deposited funds 

remain available until expended ‘‘for expenses in 

providing immigration adjudication and 

naturalization services and the collection, 

safeguarding and accounting for fees deposited in 

and funds reimbursed from the ‘Immigration 

Examinations Fee Account’.’’ 

2Congress’s intent in using individual terms, 

such as ‘‘full cost,’’ is clear, although the totality of 

the section is ambiguous. 

III. Public Comments on the Proposed 

Rule 

DHS provided a 45-day comment 

period following the publication of the 

proposed rule and received 225 

comments. DHS also invited the public 

to access the commercial software 

utilized in executing the budget 

methodology and developing the cost 

model underlying the proposed rule to 

facilitate public understanding of the fee 

modeling process explained in the 

supporting documentation. See 75 FR 

33445, 33447. USCIS received no 

requests for access to the modeling 

program. 

On June 9, 2010, USCIS Director 

Alejandro Mayorkas hosted a 

stakeholder engagement that focused 

exclusively on the proposed rule. 

During this engagement, Director 

Mayorkas provided information about 

the rule and directed the public to the 

Federal Register and http:// 

www.regulations.gov to submit 

comments on the proposed rule. 

Throughout the public comment period, 

USCIS Senior Leadership met with 

stakeholders during regularly– 

scheduled engagements and used these 

opportunities to provide information 

and encourage individuals and groups 

to submit written comments. 

DHS received comments from a broad 

spectrum of individuals and 

organizations, including refugee and 

immigrant service and advocacy 

organizations, public policy and 

advocacy groups, members of Congress, 

and private citizens. Many comments 

addressed multiple issues or provided 

variations of opinion on the same 

substantive issues. Comments ranged 

from strongly supportive of the fee 

changes to strongly critical. Some 

comments provided critiques of the 

methodology and the proposed fee 

schedule, while others suggested 

alternative methods and funding 

sources to finance USCIS operations. 

DHS has considered the comments 

received and all other materials 

contained in the docket in preparing 

this final rule. The final rule does not 

address comments seeking changes in 

United States statutes; changes in 

regulations or applications and petitions 

unrelated to, or not addressed by, the 

proposed rule; changes in procedures of 

other components within DHS or other 

agencies; or the resolution of any other 

issues not within the scope of the 

rulemaking or the authority of DHS. All 

comments may be reviewed at the 

Federal Docket Management System 

(FDMS) at www.regulations.gov, docket 

number USCIS–2009–0033. The public 

may also review the docket upon 

request by contacting USCIS through the 

contact information listed in this rule. 

A. Authority to Promulgate Fees 

Several commenters questioned 

DHS’s authority to promulgate the rule. 

Specific comments challenged DHS’s 

authority to charge specific amounts for 

specific fees, to cross–subsidize fees, 

and to make policy decisions that affect 

the amount of specific fees. These 

comments asserted both generally, and 

in regard to specific fees, that DHS’s 

proposed fee schedule was not in 

conformity with different provisions of 

law, policy, and guidance. Some 

commenters suggested that 

administrative and overhead costs were 

not related to the provision of services 

and should be excluded. Other 

commenters suggested that enforcement 

costs should be excluded from the fees, 

while others recommended that all of 

the enforcement costs of immigration 

and law enforcement agencies should be 

recovered by fees. Several commenters 

asserted that expenses not related to the 

provision of ‘‘adjudication and 

naturalization services’’ are matters of 

public benefit and should instead be 

funded by appropriation. Commenters 

also suggested that DHS was not 

authorized to ‘‘bundle’’ fees or to cross– 

subsidize costs of one service with 

funding from another fee. 

Underlying these comments is the 

issue of compliance with the 

authorizing statute and conformance 

with internal Executive Branch 

guidance. Although some commenters 

recognized that DHS is permitted to 

fund all USCIS operations from fees, 

they asserted there is no statutory 

mandate requiring it to do so. These 

comments raise the issue of the general 

structure of the Immigration 

Examinations Fee Account (IEFA), and 

whether fees can legally recover certain 

costs. 

DHS disagrees. DHS outlined its 

authority to promulgate the USCIS fee 

schedule in the proposed rule. 75 FR 

33445, 33447–8. DHS carefully reviews 

its authority to act and provides a more 

detailed explanation of its legislative 

authority and management guidance in 

response to these comments. 

1. Immigration and Nationality Act 

Section 286(m) 

The Immigration and Nationality Act, 

as amended, provides for the collection 

of fees at a level that will ensure 

recovery of the full costs of providing 

adjudication and naturalization 

services, including services provided 

without charge to asylum applicants 

and certain other immigrant applicants. 

INA section 286(m), 8 U.S.C. 1356(m).1

The INA provides that the fees may 

recover administrative costs as well. 

The fee revenue collected under section 

286(m) of the INA remains available to 

DHS to provide immigration and 

naturalization benefits and ensures the 

collection, safeguarding, and accounting 

of fees by USCIS. INA section 286(n), 8 

U.S.C. 1356(n). 

Congress also has imposed specific 

fixed fees, such as the $7 individual 

immigration inspection fee at ports of 

entry. INA section 286(d), 8 U.S.C. 

1356(d). Additionally, Congress has 

established certain fixed fees and 

provided a specific method for 

adjustment of those fees, such as the 

premium processing fee. INA section 

286(u), 8 U.S.C. 1356(u). DHS considers 

the structure of all of these provisions 

and the relationship between fee 

requirements and appropriated funds in 

reaching decisions about the USCIS fee 

schedule. 

INA section 286(m), 8 U.S.C. 1356(m), 

contains both silence and ambiguity 

under Chevron USA, Inc. v. Natural 

Resources Defense Council, 467 U.S. 

837 (1984). Congress has not spoken 

directly, for example, to a number of 

issues present in this section, including 

the scope of application of the section 

or subsidizing operations from other 

fees.2 Congress has provided that USCIS 

recover costs ‘‘including the costs of 

similar services’’ provided to ‘‘asylum 

applicants and other immigrants.’’ 

Congress has not detailed the 

determination of what costs are to be 

included. Moreover, ‘‘other immigrants’’ 

has a broad meaning under the INA 

because the term ‘‘immigrant’’ is defined 

by exclusion to mean ‘‘every alien 


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58966 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 

except an alien who is within one of the 

following classes of nonimmigrant 

aliens.’’ INA section 101(a)(15), 8 U.S.C. 

1101(a)(15). The extensive listing of 

exclusions from ‘‘immigrant’’ by the 

non-immigrant visa classes is replete 

with ambiguity evidenced by the 

detailed and complex regulations and 

judicial interpretations of those 

provisions. 

Congress additionally provides 

annual appropriations for specific 

USCIS programs. Appropriated funding 

for FY 2010 included asylum and 

refugee operations (4th Quarter 

contingency funding), and military 

naturalization surcharge costs ($55 

million); E-Verify ($137 million); 

immigrant integration ($11 million); 

REAL ID Act implementation ($10 

million); and data center consolidation 

($11 million). Department of Homeland 

Security Appropriations Act, 2010, 

Public Law 111–83, title IV, 123 Stat. 

2142, 2164–5 (Oct. 28, 2009) (DHS 

Appropriation Act 2010). Providing 

these limited funds against the backdrop 

of the broad immigration examinations 

fee statute—together forming the totality 

of funding available for USCIS 

operations—requires that all other costs 

relating to USCIS and adjudication 

operations are funded from fees. In 

appropriating specific funds, Congress 

approves of the fee amounts 

promulgated by DHS for the operation 

of USCIS by approving the total 

expenditure level. When no 

appropriations are received, or fees are 

statutorily set at a level that does not 

recover costs, or DHS determines that a 

type of application should be exempt 

from payment of fees, USCIS must use 

funds derived from other fee 

applications to fund overall 

requirements and general operations. 

Before the IEFA was created in 1988, 

all activities related to case processing 

were funded by appropriations. See 

Public Law 100–459, section 209, 102 

Stat. 2186 (Oct. 1, 1988). While fees 

were charged prior to 1988, those fees 

were treated as miscellaneous receipts 

of the United States Treasury and 

deposited in the General Fund. Those 

fees were not available to the 

Immigration and Naturalization Service 

for expenditure. The IEFA was created 

to provide an alternative to 

appropriations. As many of the 

commenters stated, the law does not 

preclude the use of appropriations to 

subsidize fee receipts to fund 

operations. In the absence of 

appropriations, however, USCIS’s only 

funding source is fee revenue. Of the 

$386,000,000 requested in the FY 2011 

Budget, $259,000,000 will cover the 

estimated cost of asylum and refugee 

surcharges ($207 million), the SAVE 

program ($34 million), and the Office of 

Citizenship ($18 million) for FY 2011. 

The fees in this rule assume that the 

costs of these activities will not be 

financed by fee revenue and, instead, 

paid with appropriated funds. 

Commenters suggested that only the 

activities directly relating to specific 

adjudications should be charged to 

those who apply for the benefits. These 

comments rely on statutory authority 

separate from the authority for these 

fees. The general authority for the 

United States to impose and collect 

‘‘user’’ fees stems from the Independent 

Offices Appropriation Act, 1952 (IOAA), 

31 U.S.C. 9701(b). Under the IOAA, a 

‘‘value’’ to the recipient is a key 

threshold factor and the costs of ‘‘public 

interest’’ have been effectively included 

within the fees. National Cable 

Television Ass’n v. United States, 415 

U.S. 336 (1974); FPC v. New England 

Power Co., 415 U.S. 345 (1974); 

Seafarers Internat’l Union v. Coast 

Guard, 81 F.3d 179, 183 (DC Cir. 1996). 

In New England Power Co., the Supreme 

Court held that the IOAA authorizes ‘‘a 

reasonable charge’’ to be made to ‘‘each 

identifiable recipient for a measurable 

unit or amount of Government service 

or property from which [the recipient] 

derives a special benefit.’’ See 415 U.S. 

at 349 (quoting Bureau of the Budget 

Circular No. A–25 (Sept. 23, 1959)). The 

Court held that such fees may be 

assessed to an individual even when the 

benefits from the service provided are 

not only special to the recipient but 

widespread to the general public as a 

whole. Id. See also National Cable 

Television Ass’n, 415 U.S. at 343–44. So 

long as the service provides a special 

benefit above and beyond that which 

accrues to the public at large to a 

readily-identifiable individual, the fee is 

permissible. New England Power, 415 

U.S. at 349–51 & n. 3. 

Prior to the enactment of INA section 

286(m) 8 U.S.C. 1356(m), fees charged 

for immigration services were governed 

by the IOAA and were judicially 

reviewed under the IOAA. A more 

elementary cost analysis than that 

currently used was upheld by the 

courts. Ayuda, Inc. v. Attorney General, 

661 F. Supp. 33 (D.D.C. 1987), aff’d, 848 

F.2d 1297 (DC Cir. 1988). As the Court 

of Appeals in Ayuda stressed, the 

procedures were ‘‘triggered only at the 

instance of the individual who seeks, 

obviously, to benefit from them.’’ 848 

F.2d at 1301. 

Congress changed this formulation for 

immigration fees in the enactment of 

INA section 286(m) and the creation of 

the IEFA. DHS’s authority under INA 

section 286(m) is an exception to the 

limitations of the IOAA. 31 U.S.C. 

9701(c). The relevant, second proviso 

was added to the INA after the Court of 

Appeals decided Ayuda under the 

IOAA. See Public Law 101–515, section 

210(d)(1), (2), 104 Stat. 2120, 2121 (Nov. 

5, 1990). The statutory provisions in 

section 286(m) are broader than the 

IOAA, authorizing DHS to recover the 

full cost of providing benefits and 

ensuring sufficient revenues to invest in 

improved service and technology. Even 

though the requirements of the IOAA do 

not apply in developing these fees, DHS 

and USCIS are mindful of the need to 

explain the process to the general public 

and have done so. Cf. Engine 

Manufacturers Assoc. v. EPA, 20 F.3d 

1177 (DC Cir. 1994). 

Accordingly, DHS disagrees with the 

commenters’ suggestions that it has 

exceeded its authority to promulgate 

fees to recover the full cost of operating 

USCIS. Congress and the Executive 

Branch have been in agreement that the 

full cost of operating USCIS should 

come from the sum of the general IEFA 

fee account, several other specific feedriven provisions of statute, and annual 

appropriated funds. The balance of the 

funding between these accounts is 

struck by Congress in determining the 

annual appropriation, and DHS and 

USCIS negotiate that result with 

Congress and adjust as practical the 

total amount charged as fees, which is 

ultimately approved by Congress as the 

amount that may be expended. 

2. Biometrics for Temporary Protected 

Status 

A commenter expressed specific 

concern that the proposed charges to the 

biometric services fee in the proposed 

fee rule are unlawful in their 

application to the temporary protected 

status (TPS) program. TPS is a 

temporary benefit that eligible aliens in 

the United States may request if their 

home countries have been designated 

for TPS by the Secretary based on 

temporary and extraordinary conditions 

that prevent such aliens from being able 

to return to their countries safely, or in 

certain circumstances, where their 

countries are unable to handle their 

return adequately. See generally INA 

section 244, 8 U.S.C. 1254a. 

The commenter suggested that if at 

least certain TPS re-registrants are not 

exempt from the biometric services fees, 

then the proposed changes may run 

afoul of the statutory constraints on fees 

charged to TPS registrants because the 

biometric services fee would: (1) Charge 

for services that are not provided; (2) 

charge for services that do not constitute 

‘‘biometric services;’’ and (3) charge for 

services that are not necessary. Based on 


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3Bautista-Perez v. Holder, No. 3:07–cv–04192– 

TEH (N.D. Cal.). See 2009 WL 2031759 (N.D. Cal. 

July 9, 2009) (order denying plaintiff’s motion for 

partial summary judgment and granting in part and 

denying in part defendants’ cross-motion for 

summary judgment). 

4Bautista-Perez v. Holder, No. 3:07–cv–04192– 

TEH (N.D. Cal. Sept. 15, 2010), Dk. No. 153 (order 

granting defendant’s motion to dismiss with leave 

to amend complaint). ‘‘The strict accounting that 

Plaintiffs demand for the biometric services fee is 

unwarranted by the statute. [Pub. L. 111–83, section 

549, 123 Stat. 2142 (Oct. 28, 2009)] does not purport 

to dictate how USCIS calculates the fee for this 

service; it merely authorizes the charging of fees for 

‘‘necessary services * * * when administering’’ the 

TPS program. USCIS does not defy that authority 

by charging a standard fee even though some 

applicants require more services than others. * * * 

Plaintiffs argue, in essence, that section 549 

requires every component of the fee to be directly 

tied to the fee-payer’s TPS application. The Court 

does not see how section 549 gives it the authority 

to scrutinize the calculation of USCIS’s biometric 

services fee in such painstaking detail.’’ Dk. No. 

154, slip. op. at 15. 

the potential problems with requiring 

all TPS re-registrants to pay the 

biometric services fee, the commenter 

respectfully urged USCIS to interpret its 

fee rule to exempt TPS re-registrants 

from paying the biometric services fee, 

or impose a reduced fee for TPS reregistrants whose biometric information 

does not need to be collected. The 

commenter additionally suggested that 

initial TPS registrants should not be 

charged the costs of background checks 

that are already subsumed in the $50 

TPS registration fee. INA section 

244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B) 

(authorizing ‘‘payment of a reasonable 

fee as a condition of registering [for 

TPS] . * * * The amount of any such 

fee shall not exceed $50.’’ (emphasis 

added)); Department of Homeland 

Security Appropriations Act, 2010, 

Public Law 111–83, section 549, 123 

Stat. 2177 (Oct. 28. 2009); 8 U.S.C. 

1254b(a) (authorizing ‘‘fees for 

fingerprinting services, biometric 

services, and other necessary services 

[to] be collected when administering the 

program described in section 1254a’’); 

75 FR 33445, 33446–01, 33447. The 

commenter asserts that because of these 

limits, a $50 TPS application fee is 

imposed only once, upon initial 

registration. 

The commenter noted that it 

represents a nationwide class of Central 

American TPS applicants, in the 

currently pending class action 

challenging USCIS biometric fee 

requirements.3 The majority of the 

comment reiterated the arguments that 

the plaintiffs made in the litigation. 

DHS agrees with the reasoning of the 

District Court in dismissing that case.4

DHS had proposed in that section that 

no biometric services fee would be 

charged when ‘‘[t]here is no fee for the 

associated benefit request that was, or 

is, being submitted.’’ See proposed 8 

CFR 103.7(b)(1)(i)(C)(2); 75 FR 33445, 

33484. DHS proposed this change both 

as a humanitarian measure and for 

administrative efficiency for certain 

immigration benefit requests for which 

DHS had previously provided an 

exemption from the initial immigration 

benefit request fee for the underlying 

benefit request in the FY 2008/2009 fee 

rule. The 2008/2009 fee rule 

promulgated several general exemptions 

to immigration benefit request fees. For 

example, the rule provided that there 

was no fee for a Petition for Amerasian, 

Widow(er), or Special Immigrant, Form 

I–360, filed by an individual seeking 

classification as an Amerasian; a selfpetitioning battered or abused spouse, 

parent, or child of a United States 

citizen or lawful permanent resident; or 

a Special Immigrant Juvenile. See 72 FR 

29851 (May 30, 2007), 29865, 29873. 

Fee exemptions were also provided for 

four small volume programs: victims of 

human trafficking (T visas), victims of 

violent crime (U visas), VAWA selfpetitioners, and Special Immigrant 

Juveniles. The reasons for providing 

these specific application and petition 

fee exemptions were fully discussed in 

the 2008/2009 proposed fee rule. See 72 

FR 4888, 4903 (Feb. 1, 2007). In that 

rule, DHS also provided for additional 

fee waivers, such as the biometric fee, 

where individuals demonstrate an 

inability to pay. See 72 FR 29851, 

29874; 8 CFR 103.7(c)(5). 

Although DHS exempted individuals 

requesting the specific humanitarian 

benefits noted above from having to pay 

the immigration benefit request fees in 

the FY 2008/2009 fee rule, DHS did not 

specifically exempt them, on a blanket 

basis, from also paying the associated 

biometrics fee. At that time, DHS only 

provided eligibility for an 

individualized biometrics fee waiver 

where the applicant or petitioner could 

show an inability to pay the biometrics 

fee under 8 CFR 103.7(c). There has 

been continuing confusion since the FY 

2008/2009 fee rule about whether the 

biometric services fee is required if the 

immigration benefit request fee is not 

required. USCIS has accommodated 

some of the concerns by 

administratively treating a request for a 

fee waiver of the underlying benefit fee 

as also a request for a waiver of the 

biometrics fee, and not requiring a 

duplicate, simultaneous or subsequent 

request to waive that fee. In the 

proposed rule, DHS proposed an 

amendment in 8 CFR 103.7(b)(1)(i)(C)(2) 

to simplify the process so that a 

biometrics fee would also not be 

required for those particular fee-exempt 

immigration benefit requests that DHS 

considered when deciding to provide 

fee exemptions. DHS also intended that 

no biometrics fee would be required in 

cases where any immigration benefit 

request fee for the associated benefit 

was waived, on a case-by-case basis, 

under 8 CFR 103.7(c). 

The proposed revision and the final 

rule implement Congressional 

enactment of the Department of 

Homeland Security Appropriations Act, 

2010, specifying that: ‘‘In addition to 

collection of registration fees described 

in section 244(c)(1)(B) of the [INA] (8 

U.S.C. 1254a(c)(1)(B)), fees for 

fingerprinting services, biometric 

services, and other necessary services 

may be collected when administering 

the [TPS] program described in section 

244 of such Act.’’ Public Law 111–83, 

123 Stat. 2142 (Oct. 28, 2009). 

Through the language that was 

initially proposed for 8 CFR 

103.7(b)(1)(i)(C)(2) and consistent with 

current TPS fee waiver practice, DHS 

intended that the biometrics fee would 

not be required from an initial TPS 

applicant who was granted a waiver of 

the initial TPS application fee based on 

inability to pay. However, DHS did not 

intend that the proposed regulatory 

language should be construed to exempt 

from payment of the biometric services 

fee all TPS beneficiaries, aged 14 and 

older, who apply to re-register for TPS, 

regardless of inability to pay. Although 

applicants for TPS re-registration do not 

currently submit the $50 for the 

Application for Temporary Protected 

Status, Form I–821, after their initial 

TPS applications, TPS beneficiaries 

have often held TPS status for several 

years, and they have been eligible for 

employment authorization at least since 

obtaining TPS, and earlier if they were 

found eligible for TPS temporary 

treatment benefits. See 8 CFR 244.5 and 

244.12. Most TPS beneficiaries, in fact, 

have employment authorization 

documents. 

Unlike many of the initial applicants 

for the fee-exempt humanitarian 

benefits, such as T and U visas, special 

immigrant juveniles, and certain selfpetitioning battered aliens, TPS 

beneficiaries seeking re-registration 

have work authorization and thus, 

generally have less need for a blanket 

exemption from the biometric services 

fee. If all such re-registering TPS 

beneficiaries were exempt from the 

biometrics fee, the cost of providing 

them with biometric services would 

need to be borne by other applicants 

and petitioners for immigration benefits. 

DHS does not perceive a need to shift 

the biometrics costs for re-registering 

TPS beneficiaries onto other individuals 


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5The commenter makes the same arguments that 

it made in Barahona v. Napolitano, No. 1:10–cv– 

1574–SAS (S.D.N.Y.). 

through a blanket biometrics fee 

exemption. However, DHS will continue 

to provide, on an individual basis, a fee 

waiver of the biometrics fee when a reregistering TPS beneficiary does 

demonstrate an inability to pay the $85 

biometric fee. DHS has revised the 

language of this provision to ensure 

clarity and to alleviate potential 

confusion. New 8 CFR 103.7(b)(1)(i)(C). 

3. Bundling 

One commenter specifically argued 

that defects in the current regulation 

persist in the proposed fee rule in that 

both the current regulations and the 

proposed rule exceed the authority 

granted under INA section 286(m), 8 

U.S.C. 1356(m), by ‘‘bundling’’ certain 

benefits and associated fees. 

Specifically, the commenter argued that 

DHS erred in the 2008/2009 fee rule by: 

(1) Impermissibly ‘‘bundling’’ the fee for 

applications to adjust status with the 

fees for interim benefits, requiring 

applicants to pay for services that they 

do not want or need, cannot use, and/ 

or do not actually receive and (2) 

improperly including in application and 

petition fees the costs of agency 

activities that are distantly related, if at 

all, to the provision of immigration 

services to fee-paying applicants.5

DHS disagrees with the commenter’s 

belief that the law requires that IEFA 

fees be tied to the actual services 

provided. As explained above, the costto-services linkage under the IOAA is 

not applicable to fees under the IEFA, 

which is an exception to the IOAA. The 

IEFA is administered using the cost 

modeling similar to that used in IOAA 

fees, but necessarily includes 

administrative decisions to assign 

overhead costs that cannot be readily 

associated with specific activities. 

Similarly, administrative discretion 

must be applied when a substantial cost 

would be generated in attempting to 

drive costs to highly individualized 

objects, such as individual applicants. 

In effect, the Administration bundles 

certain costs to fees because it may be 

more efficient to do so and can create 

a total lower cost of operation. DHS 

determined to bundle the fees as a 

resolution to simplify interim benefits 

and reduce interim benefit applications. 

The costs of administering 

individualized fee determinations 

exceed the benefits to the totality of 

applicants and petitioners, and the 

government. 72 FR 29851, 29861 

(providing multiple fee options based 

on who typically requests interim 

benefits, when records indicate that the 

vast majority of applicants do request 

interim benefits, would be too 

complicated and costly for USCIS to 

administer). USCIS may reconsider this 

evaluation during a fee review cycle 

after the implementation of electronic 

records. DHS and USCIS may be able to 

provide this type of customized fee 

structure in the future, but cannot 

effectively do so at this time. 

The commenter’s concern reflects a 

limited view of the decision-making 

process. Policy decisions inherently 

made by regulations directly affect the 

fee structure. For example, the policy 

decision to exempt aliens who are 

victims of a severe form of trafficking in 

persons and who assist law enforcement 

in the investigation or prosecution of 

the acts of trafficking (T Visa), and 

aliens who are victims of certain crimes 

and are being helpful to the 

investigation or prosecution of those 

crimes (U Visa), from visa fees, the cost 

of processing those fee-exempt visas 

must be recovered by fees charged 

against other applications. INA sections 

101(a)(15)(T), (U), 214(o), (p), 8 U.S.C. 

1101(a)(15)(T), (U), and 1184(o), (p); 8 

CFR 214.11, 214.14, 103.7(c)(5)(iii); 

Adjustment of Status to Lawful 

Permanent Resident for Aliens in T or 

U Nonimmigrant Status, 73 FR 75540 

(Dec. 12, 2008). Each such decision 

affects the totality of the fee-paying 

applicants and petitioners and removes 

some source of revenue. Inherently, and 

consistent with INA section 286(m), 8 

U.S.C. 1356(m), that revenue is 

recovered from other fee-paying 

applicants and petitioners. 

The commenter’s suggestion that DHS 

lacks authority to make policy decisions 

adjusting the amount of fees also 

overlooks the reality of the two 

contiguous and complete sources of 

funding for USCIS. The totality of 

funding for USCIS from two sources 

effectively means that if one source is 

insufficient, the other source must make 

up the difference, or workload will not 

be performed at the prescribed level, 

itself a policy choice. 

Policy decisions made regarding the 

implementation of the Immigration and 

Nationality Act and other immigration 

laws inherently and directly affect 

USCIS budget requirements. Both INA 

section 286(m) and Congress, in annual 

appropriations and expenditure level 

approvals, recognize this point. The 

Administration has taken steps within 

the enacted FY 2010 appropriations for 

USCIS to move away from fee-generated 

revenue to support asylum, refugee, and 

military naturalization costs. The 

Administration seeks to improve the 

linkage between fees paid by USCIS 

applicants and petitioners and the cost 

of programs and activities to provide 

immigration benefits as a matter of 

policy, not a matter of law. 

4. Fraud Detection and National 

Security (FDNS) and Other Program 

Costs 

Several commenters suggested that 

the proposed rule should have excluded 

any law enforcement or national 

security functions, such as the Fraud 

Detection and National Security (FDNS) 

operations. DHS disagrees with these 

suggested restrictions and continues to 

believe that it may fund, as a matter of 

discretion, all of USCIS operations, or 

more, from fees. 

Other commenters suggested that 

additional costs should be recovered 

through the IEFA account. Implicitly, 

these comments suggest an 

understanding that the authority of DHS 

under the INA is broader than DHS is, 

in fact, currently exercising. 

The realignment of functions within 

USCIS to create the FDNS was a 

consolidation of specific previous 

functions from benefit programs to 

streamline operations. In a sense, FDNS 

was created to consolidate the anti-fraud 

efforts within USCIS that have 

traditionally been funded from fees. 

These anti-fraud efforts are not 

impermissible under INA section 

286(m), 8 U.S.C. 1356(m). DHS does not 

opine on whether the anti-fraud efforts 

of FDNS would be permissible under 

the IOAA, but only that INA section 

286(m) is an exception to the IOAA and 

the Administration is permitted to 

decide, as a matter of policy, to include 

these charges within the IEFA. 31 U.S.C. 

9701(c). 

As for anti-fraud, law enforcement, 

and national security efforts, DHS 

believes that the commenters 

misunderstand the nature of these 

efforts. These efforts are integral to 

determining an applicant’s eligibility for 

a benefit, and to maintain the integrity 

of the immigration system. Background 

check information helps benefit public 

safety and security by identifying 

persons who may be ineligible for a 

benefit due to a criminal background. 

Further, recent fraud detection efforts 

have resulted in changes to several 

USCIS programs, such as the final rule, 

Special Immigrant and Nonimmigrant 

Religious Workers, published 

specifically to address concerns about 

the integrity of the religious worker 

program that were uncovered by USCIS 

fraud detection experts. See 73 FR 

72276 (Nov. 26, 2008). The filing of an 

immigration benefit request is why 

security checks, fraud reviews, and 

investigations of possible violations are 


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needed. Thus it is appropriate for the 

full costs of these efforts to be funded 

by fees paid by those who file such 

requests. 

Accordingly, DHS disagrees that the 

inclusion of FDNS in the fee calculation 

is inappropriate and will continue to 

fund that function through fees. This 

final rule establishes a level of fees 

sufficient to recover the full cost of 

operating USCIS, including the antifraud functions of FDNS. The rule has 

not been amended to include other costs 

that could legally be charged or to 

exclude any costs of operating USCIS. 

5. Office of Management and Budget 

Circulars 

Several commenters also suggested 

that DHS’s authority to promulgate fees 

is limited by Office of Management and 

Budget (OMB) Circular No. A–25, which 

‘‘establishes Federal policy regarding 

fees assessed for Government services’’ 

and defines the term ‘‘full cost.’’ OMB 

Circular A–25, User Charges, 58 FR 

38142 (July 15, 1993), available at 

http://www.whitehouse.gov/omb/ 

circulars_a025. See FPC v. New England 

Power Co., 415 U.S. at 349–51. DHS 

agrees that OMB Circular A–25 sets 

federal policy and provides guidance for 

user fees under the IOAA, 31 U.S.C. 

9701, discussed above, but disagrees 

that Circular A–25 applies under INA 

section 286(m), 8 U.S.C. 1356(m). The 

guidance of OMB Circular A–25 is 

internal Executive Branch policy 

guidance, direction from the Office of 

Management and Budget to the agencies 

on the subject of user fees under the 

IOAA. 

As the Circular explains, OMB issued 

it pursuant to ‘‘Title V of the 

Independent Offices Appropriations Act 

of 1952 (31 U.S.C. 9701)’’ (IOAA). See 

Circular A–25, section 3 (‘‘Authority’’). 

The Circular goes on to explain the 

relationship between the Circular’s 

provisions and the IOAA, and between 

the Circular’s provisions and other fee 

statutes: ‘‘The provisions of the Circular 

shall be applied by agencies in their 

assessment of user charges under the 

IOAA. In addition, this Circular 

provides guidance to agencies regarding 

their assessment of user charges under 

other statutes.’’ See id., section 4b. 

Thus, as the Circular explains, its 

provisions are ‘‘guidance to agencies 

regarding their assessment of user 

charges under other statutes.’’ One of 

these ‘‘other statutes’’ is INA section 

286(m), 8 U.S.C. 1356(m). Accordingly, 

with respect to the implementation of 

INA section 286(m), Circular A–25 has 

the status of internal Executive Branch 

policy guidance. See HHS v. FLRA, 844 

F.2d 1087, 1095–96 (4th Cir. 1988) (en 

banc) (OMB Circular A–76 is internal 

Executive Branch guidance). As Circular 

A–25 is internal Executive Branch 

guidance with respect to the 

establishment of fees under INA section 

286(m), the Circular does not impose 

legally-binding (i.e., judicially 

enforceable) limits on DHS’ authority to 

promulgate fees under section 286(m). 

See HHS v. FLRA, id. (as internal 

Executive Branch guidance, Circular 

A–76 is not judicially enforceable). 

One commenter stated that OMB 

Circular A–25 requires USCIS to 

identify the costs for each service and 

directly match those costs to the fee 

charged. The commenter suggested that 

the expenses for operating USCIS 

included in the calculation of costs that 

must be covered from the collection of 

fees exceeded what was appropriate. 

The commenter suggested that USCIS 

expenses recovered and fees paid must 

relate to the specific service, and that 

DHS is not authorized to include costs 

that are unrelated or only tangentially 

related to the cost of providing the 

services. For example, the commenter 

suggested that DHS is not authorized to 

recover with fees the costs of the SAVE 

and E-Verify programs, or expenses 

related to anti-fraud, law enforcement, 

and national security efforts. 

As clearly stated in the proposed rule, 

DHS begins its fee process, consistent 

with OMB Circular A–25, by engaging 

in activity-based costing (ABC). See 75 

FR 33445, 33448. USCIS adds to the 

ABC model result the necessary amount 

for overhead and other costs not driven 

by the cost of services. See id. This is 

consistent with full cost recovery. The 

term ‘‘full cost’’ used in INA section 

286(m), 8 U.S.C. 1356(m), means the 

costs of operating USCIS, less any 

appropriated funding. DHS makes 

adjustments based on Administration 

policy within its discretion under the 

INA. See 75 FR 33445, 33448. Thus, the 

fees established in this rule are 

necessary, rational, and reasonable, and 

comply with the INA and applicable 

guidance. The decision to structure 

USCIS fees as proposed and in this final 

rule is the culmination of an 

administrative process that conforms 

with Administration policy. As stated in 

the proposed rule, USCIS has 

historically been funded almost 

exclusively by fees. See 75 FR 33445, 

33447. Also, the INA provides authority 

to charge fees that are broader than the 

IOAA and Circular A–25. 

DHS understands the desire of the 

commenters. DHS’s interpretation of 

INA section 286(m) should not be 

construed to mean that the 

Administration believes there is no 

merit in relating fees to specific services 

rendered. The President has proposed to 

remove $259 million from the USCIS fee 

base through appropriations for FY2011. 

Congressional support for the first stage 

of this process is evidenced by the 

FY2010 appropriation. The process by 

which increased linkage can be made 

depends upon the Congress. While DHS 

agrees with the commenter that certain 

costs ‘‘should’’ be borne by 

appropriation, until Congress provides 

that appropriation, these costs must be 

borne by the fee structure under INA 

section 286(m), 8 U.S.C. 1356(m). DHS 

has already begun preparing for its next 

biennial immigration fee review. The 

next fee review will consider further 

refinements to how immigration fees are 

determined, including the level by 

which fees match assignable, associated, 

and indirect costs. 

6. Accounting Standards 

Commenters implicitly questioned 

whether DHS and USCIS complied with 

appropriate accounting standards in the 

proposed fee rule. The proposed fee rule 

and this final fee rule reflect DHS 

conformity with the requirements of the 

Chief Financial Officers Act of 1990 

(CFO Act), 31 U.S.C. 901–03, that each 

agency’s Chief Financial Officer (CFO) 

‘‘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). 

Like OMB Circular A–25, the cost 

accounting concepts and standards 

developed by the Federal Accounting 

Standards Advisory Board (FASAB) 

define ‘‘full cost’’ to include: ‘‘(1) The 

costs of resources consumed by the 

segment that directly or indirectly 

contribute to the output, and (2) the 

costs of identifiable supporting services 

provided by other responsibility 

segments within the reporting entity, 

and by other reporting entities.’’ Federal 

Accounting Standards Advisory Board, 

Statements of Financial Accounting 

Concepts and Standards: 

Pronouncements as Amended 437 (June 

2009). To determine the full cost of a 

service or services, FASAB identifies 

various classifications of costs to be 

included and recommends various 

methods of cost assignment. As 

generally accepted accounting 

principles, FASAB’s standards are 

conventions of federal financial 

accounting, not statutory or regulatory 

requirements. As the Supreme Court 

pointed out in Shalala v. Guernsey 

Memorial Hospital, ‘‘Financial 

accounting is not a science. It addresses 


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58970 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 

many questions as to which the answers 

are uncertain and is a ‘process [that] 

involves continuous judgments and 

estimates.’ ’’ 514 U.S. 87, 100 (1995) 

(citing, R. Kay & D. Searfoss, Handbook 

of Accounting and Auditing, ch. 5, p. 7– 

8 (2d ed. 1989)). 

As explained above, DHS applies the 

discretion provided in INA section 

286(m), 8 U.S.C. 1356(m), in a manner 

consistent with its responsibilities for 

operation of government and the goals 

of providing immigration services and 

transparent accounting. DHS applies 

that judgment to: (1) Develop activitybased costing to establish basic fee 

setting parameters, (2) apply 

administrative judgment to allocate 

overhead and other indirect costs, and 

(3) apply policy judgments to effectuate 

the overall Administration policy. The 

‘‘full’’ cost to the Government of 

operating USCIS, less any appropriated 

funding, has been the historical total 

basis for establishing the cost basis for 

the fees, and Congress has consistently 

recognized this concept in its annual 

appropriations. This final rule, 

therefore, reflects the authority granted 

to DHS by INA section 286(m) and other 

statutes. 

In sum, DHS disagrees with the 

commenters’ assertions that DHS has 

exceeded its authority. DHS has 

implemented the requirements of INA 

section 286(m) appropriately and has 

made no changes in the final rule in 

light of these comments. 

B. Relative Amount of Fees 

A number of commenters argued that 

the proposed fees were too low, while 

others thought the fees were too high. 

Some expressed general concerns about 

immigration levels and stated that a fee 

increase would reduce the number of 

people seeking immigration benefits. 

Others argued that the fees were too 

high, especially when filing for families, 

and were a barrier to family unification. 

Many commenters cited the general 

state of the economy as a reason to delay 

fee increases. 

1. Recovery of Additional Costs 

Some of the commenters who agreed 

with fee increases asserted that fees 

should be high enough to cover all 

USCIS costs related to the processing of 

immigration benefits so that taxpayers 

are not asked to pay for someone 

entering, residing, or seeking 

immigration services in the United 

States. Some commenters favored 

increasing fees for immigration benefit 

requests filed by businesses. Other 

commenters supported a fee increase 

specifically for the purpose of 

improving customer service. Several 

commenters suggested that fees should 

not be based on USCIS costs, but on the 

value of the benefit received by the 

applicant (e.g., United States 

citizenship). These commenters 

expressed the view that immigration 

benefits are highly valuable and worthy 

of special consideration. Other 

commenters suggested that increasing 

specific fees, such as for an Application 

to Extend/Change Nonimmigrant Status, 

Form I–539, instead of implementing 

their proposed fee reduction, would 

mitigate other fee increases. 

Filing fees established under this rule 

are higher than the current fees but are 

based only on the estimated relative 

costs associated with processing 

immigration benefit requests and other 

costs of operating USCIS. Although a 

number of commenters suggested that 

USCIS increase fees further, USCIS fees 

are based on the relative identifiable 

costs associated with providing each 

particular benefit or service in 

adherence with government-wide fee 

setting guidelines in OMB Circular A– 

25, the CFO Act, and FASAB guidance. 

Filing fees do not function as tariffs, 

generate general revenue to support 

broader policy decisions, or like fines to 

deter unwanted behavior. DHS has 

maintained the Application for 

Naturalization, N–400, fee at its current 

level to avoid any possibility of 

providing a disincentive for people to 

apply for naturalization. In addition, 

DHS has provided fee exemptions of 

certain fee based on humanitarian 

grounds and the ability to request a 

waiver of certain fees based on financial 

considerations, so that certain 

populations do not choose to not 

request benefits to which they may be 

entitled because of the fee. Besides 

those policies, filing fees are not used to 

favor businesses, families, geographical 

areas, influence larger public policy in 

favor of or in opposition to immigration, 

limit immigration, support broader 

infrastructure, or impact costs beyond 

USCIS. 

DHS designed this rule to establish 

fees sufficient to reimburse the costs of 

processing immigration benefit requests 

and the related operating costs of 

USCIS. While USCIS has authority to 

collect fees for broader governmentwide costs of administering the United 

States immigration system, DHS has 

chosen to structure the fees to recover 

only the projected full operational cost. 

USCIS believes that this decision is 

consistent with broader Administration 

policy on user fees and the intent of 

Congress in the enactment of, and 

amendments to, INA section 286(m), 8 

U.S.C. 1356(m). Accordingly, DHS has 

not changed its proposed fees based on 

these comments. 

2. Proposed Fees Are Unreasonably 

High 

A number of comments opposed the 

proposed fee increases in general terms 

or highlighted particular immigration 

benefit requests and argued that the 

proposed fee increases would effectively 

exclude aliens generally, or groups of 

aliens, from immigration benefits and 

services. Some suggested that fee 

increases send the wrong message to 

people who are attempting to comply 

with the immigration benefit process 

and United States immigration laws, 

and that higher fees may discourage 

legal immigration while encouraging 

aliens to attempt to enter the United 

States and work illegally. Other 

commenters questioned how DHS could 

raise fees again in light of the 2007 fee 

increase. 

a. Barrier to Family Reunification. 

Some commenters asserted that the 

fees caused an undue burden on 

families seeking to be reunited or 

maintain legal status. Commenters 

mentioned the burden caused when 

multiple applications or petitions must 

be filed for family members. 

USCIS understands the concerns of 

these commenters and their desire for 

families to remain intact while 

benefiting from the advantages of U.S. 

lawful residence and citizenship. 

United States immigration laws and 

policy generally favor immigration of 

families by giving preference to certain 

immigrants who are related to an 

immigrant or United States citizen. 

USCIS understands that family-based 

applications and petitions could involve 

multiple requests and thus multiple 

fees, depending on the relationships and 

family size. USCIS filing fees are usually 

a relatively small portion of the overall 

cost of travel, legal expenses, relocation, 

and other expenses incurred in 

immigrating to the United States. In 

addition, since fees provide the capacity 

necessary for USCIS to do the work 

associated with the filing, when fees do 

not fully recover costs USCIS is unable 

to maintain sufficient capacity to 

process the work. This diminished 

capacity could significantly delay 

immigration, an impact which can be far 

more of a burden on a family than the 

proposed change in filing fee. In any 

event, USCIS does not believe that the 

increases made in this rule will 

significantly influence a decision of a 

family member to petition for a family 

member to join him or her in the United 

States. As a result, no changes are made 


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in the final rule as a result of these 

comments. 

b. Fee Increases Reduce the Number of 

Filers. 

Many commenters stated that fee 

increases would reduce the number of 

filers and curb immigration to the 

United States. There are many complex 

variables that influence the demand for 

immigration benefits including: the 

economy, Congressional policy debates, 

state legislative actions, business cycles, 

and benefit fees. Obviously, benefit fees 

only represents one of these 

determinants. The commenters did not 

provide reference data or specifically 

articulate how benefit fees might impact 

filing volume. Further, DHS did not 

study the ramifications of raising this 

fee, as the purpose of this rulemaking is 

to set fees to recover costs. 

Commenters also touched on the 

larger issues of immigration policy that 

aliens should be encouraged to 

immigrate to the United States. As noted 

above in relation to the opposite 

position, the purpose of the fee schedule 

is not to establish broad immigration 

policy or induce individuals to 

immigrate to the United States, but to 

recover the costs necessary to operate 

USCIS. Accordingly, DHS did not adjust 

the fee schedule in response to these 

comments in this final rule. 

c. Income-Based Fee Structure. 

A number of commenters suggested 

that USCIS should base fee levels on the 

applicant’s or petitioner’s ability to pay 

or status as an employer. Under a 

system of full cost recovery through 

fees, this approach would mean lower 

fees for some based on income but 

higher fees for other applicants 

irrespective of how much it actually 

costs USCIS to adjudicate their 

application. 

Adjusting fee levels based on income 

would be administratively complex and 

would require higher costs to 

administer. A tiered fee system would 

require staff dedicated to income 

verification and necessitate significant 

information system changes to 

accommodate multiple fee scenarios. 

The costs and administrative burden 

associated with implementing such a 

system would be unreasonable and 

would cause additional fee increases. 

USCIS therefore does not support such 

a system at this time. DHS has not 

changed the rule in response to these 

comments. 

d. Supplementary Costs to Applicants 

and Petitioners. 

Many commenters suggested that 

increasing fees would adversely impact 

the applicants’ and petitioners’ ability to 

pay for additional services, such as legal 

fees or notaries, and, therefore, DHS 

should reduce fees. These comments 

included specific comments that an 

increase in fees would reduce the ability 

of applicants and petitioners to pay fees 

charged by non-profit organizations 

representing the applicants and 

petitioners before USCIS and other 

immigration components of DHS, and 

before immigration judges and the 

Board of Immigration Appeals within 

the Department of Justice. 

DHS understands the comments, but 

has made no change to the rule as a 

result of them. Other regulations 

address the nominal costs that nonprofit accredited organizations may 

charge. See 8 CFR 292.2(a)(1). If those or 

other costs adversely impact the private 

organizations, it is not a function of 

DHS to ensure that the organizations 

have sufficient funds. 

3. Comments on Specific Fees and 

Adjustments 

While many commenters opposed the 

fee increase in general, some 

commenters took issue with increases to 

specific fees and fees for certain 

categories of applicants and petitioners. 

Commenters also suggested that some 

fees be increased in order to reduce 

increases to other fees or to reduce other 

fees. 

a. Student Employment Authorization. 

Some commenters requested that fees 

for certain classes of non-immigrants, 

such as students, be reduced. 

Specifically, commenters noted that the 

filing fee for an Application for 

Employment Authorization, Form I– 

765, or employment authorization 

document (EAD) is particularly 

burdensome to students who may only 

have seasonal employment. These 

commenters expressed significant 

concerns about the fee’s effect on the 

limited financial capability of most 

international students in F–1 visa status 

and their ability to apply for work 

authorization when they choose to 

participate in the Optional Practical 

Training (OPT) program. 

For international students, F–1 status 

allows a student to remain in the United 

States as long as he or she is a properly 

registered full-time student. See INA 

section 101(a)(15)(F)(i), 8 U.S.C. 

1101(a)(15)(F)(i); 8 CFR 214.2(f)(5). 

Under F–1 status and subject to certain 

conditions and restrictions, a student 

may work part-time in an on-campus job 

and in a ‘‘practical training’’ job directly 

related to the student’s field of study for 

12 months during or after the 

completion of studies. Id. The OPT 

program provides F–1 students with an 

opportunity to apply knowledge gained 

in the classroom to a practical work 

experience off campus. The maximum 

period of OPT is 29 months for an F– 

1 student who has completed all course 

requirements for a degree in a science, 

technology, engineering, or mathematics 

field and has accepted employment 

with an employer enrolled in the DHS 

E-Verify employment verification 

program and 12 months for all other F– 

1 students who have completed all 

course requirements for a degree. See 8 

CFR 214.2(f)(10)(ii). 

The United States places a very high 

value on attracting international 

students and scholars to this country. 

The contributions to the academic 

experience for all students provided by 

the existence of a diverse international 

student body are invaluable. The 

resources devoted to delivering 

immigration benefits to deserving 

students show the importance of this 

goal to USCIS. Nonetheless, substantial 

resources are expended by USCIS for 

adjudication of the student’s eligibility 

for employment documents and the fee 

for an EAD was established based on 

those needs. While USCIS 

acknowledges that the income provided 

by OPT is helpful to the students, the 

emphasis of OPT is on training students 

in their fields of study, not as a source 

of income. Moreover, EAD applicants 

may request an individual fee waiver 

based on inability to pay. Fee waivers 

should be rare for students because the 

cost of applying for such a work 

authorization is a small fraction of the 

total costs of a student living in the 

United States, including tuition, room, 

and board, and international travel to 

and from his or her country of origin. 

USCIS will continue to charge the full 

fee based on the effort and resources 

expended to process this benefit for 

EAD applications not granted a fee 

waiver. No changes to the regulation 

have been made as a result of these 

comments. 

b. Entertainers, Athletes, and Other 

Individuals With Extraordinary Talent. 

Numerous commenters objected to the 

fee increase for nonimmigrant petitions 

for admission of entertainers, athletes, 

and other individuals with 

extraordinary talent to work in the 

United States on a temporary basis (O 

and P visas). Some commenters cited 

issues with booking performances 

utilizing these performers and noted the 

inability of USCIS to process the visa 

requests within the 14 days allotted by 

statute for petitions not needing 

additional supporting documentation. 

See INA section 214(c)(6)(D), 8 U.S.C. 


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1184(c)(6)(D). Commenters opined that 

they faced the burden of utilizing 

premium processing to ensure artist 

availability. Many commenters strongly 

opposed the increase of the fee and the 

premium processing fee if 

improvements in the quality of the visa 

process were not made, to include 

meeting the 14-day processing time 

requirement. Some commenters 

requested that USCIS treat non-profit 

performing arts organizations differently 

than for-profits, suggesting lower fees 

for non-profits in consideration of their 

resource means relative to those of forprofit entities. USCIS understands the 

concerns of commenters and has made 

reaching the 14-day adjudication 

process time a goal for O and P visa 

petitions. USCIS is currently meeting 

that goal at both service centers that 

process O and P petitions. 

Many commenters noted difficulty 

managing and responding to USCIS 

requests for evidence (RFEs). A 

commenter suggested that USCIS 

develop a pre-certification process for 

employers filing multiple petitions to 

prevent them from having to address the 

same RFE on multiple occasions. USCIS 

appreciates these recommendations. 

USCIS is exploring a registration 

process for employment-based visa 

petitioners and is developing policies 

and training to address these concerns, 

but these matters are outside of the 

context of this fee rule. 

DHS will not, at this time, implement 

changes to the USCIS fee system that 

attempt to account for different levels of 

income or, in this case, organizational 

resources. Such a change would require 

additional administrative complexity, 

higher costs and, consequently, higher 

fees for some benefits. 

c. Adoption. 

One commenter requested that USCIS 

reduce fees related to overseas adoption. 

USCIS acknowledges the sensitive 

nature of these petitions. USCIS 

proposed using its fee setting discretion 

to adjust certain ‘‘low volume’’ 

application and petition fees based on 

such equitable considerations and 

capped the fee for a Petition to Classify 

Orphan as an Immediate Relative, Form 

I–600; the Application for Advance 

Processing of Orphan Petition, Form I– 

600A; the Petition to Classify 

Convention Adoptee as an Immediate 

Relative, Form I–800; and the 

Application for Determination of 

Suitability to Adopt a Child from a 

Convention Country, Form I–800A. 75 

FR 33445, 33461. Under the fee rule 

methodology, the calculated fee for 

these forms would have been as much 

as $1,455—an increase of more than 

$785 or 100%. This fee level is due to 

the complexity of orphan petition 

adjudications, which often require 

several background checks and home 

visits, knowledge of adoption laws in 

multiple jurisdictions and foreign 

countries, and a thorough review of 

supporting documentation and 

evidence. However, USCIS believes that 

it would be contrary to public interest 

to impose a $785 fee increase on 

potential adoptive parents. To reduce 

this burden on adoptive parents, DHS 

lowered the fee increase to $50, or a 

little more than 7%. Any further 

reductions would shift an inordinate 

amount of these costs to other 

immigration benefit request applicants 

and petitioners. No changes to the rule 

have been made as a result of this 

comment. 

d. Entrepreneurs. 

A few commenters claimed that the 

fee for the Immigrant Petition by Alien 

Entrepreneur, Form I–526, is 

excessively high. A commenter stated 

that USCIS has not shown why the 

percentage increase for the Immigrant 

Petition by Alien Entrepreneur (for EB– 

5 status) filing fees should be higher 

than others, especially when compared 

to the Petition by Entrepreneur to 

Remove Conditions, Form I–829. 

Another commenter added that 

petitions to remove conditions generally 

should take less time to adjudicate than 

the original entrepreneur petition, 

which has a lower proposed fee. 

One commenter incorrectly calculated 

the fee increase for the Form I–526 as 

14%. The actual percent increase for the 

Form I–526, from $1,435 to $1,500, is 

only 4.5%, well below the weighted 

average increase of 10%. Contrary to the 

commenter’s statement, the percent 

increase for the I–526 is not higher than 

other benefit fee increases. The 

Immigrant Petition by Alien 

Entrepreneur and Petition by 

Entrepreneur to Remove Conditions are 

two of the more labor intensive petitions 

that USCIS processes, as evidenced by 

the high completion rates (i.e., rate of 

work time) in the proposed rule. 75 FR 

33445, 33471. As stated in the proposed 

rule, the more complex an immigration 

or naturalization benefit application or 

petition is to adjudicate, the higher the 

unit costs assigned to that task by the 

activity-based cost model. 75 FR 33445, 

33459, 33470. Although the completion 

rates for the entrepreneur petition and 

the petition to remove conditions are 

approximately the same, the fees are 

substantially different because the costs 

are being spread across a smaller 

number of petitions, resulting in a 

higher unit cost for the petition to 

remove conditions. 75 FR 33445, 33467. 

USCIS explained this reasoning in the 

proposed rule and has not modified the 

rule in response to the comments. 

e. Refugee Travel Documents. 

One commenter asserted that both the 

current fee and the proposed fee 

increase for the refugee travel document 

conflicts with United States obligations 

under Article 28 of the 1951 U.N. 

Convention Relating to the Status of 

Refugees. The United States is a 

signatory to the 1967 U.N. Protocol 

Relating to the Status of Refugees (‘‘the 

Refugee Protocol’’), which, by reference, 

adopts articles 2 through 34 of the 1951 

Convention. See United Nations 

Protocol Relating to the Status of 

Refugees, Jan. 13, 1967, 19 U.S.T. 6223, 

606 U.N.T.S. 267. Article 28 of the 1951 

Convention provides that state parties 

are obligated to issue documents for 

international travel to refugees lawfully 

staying in their territory and that ‘‘the 

provisions of the Schedule to this 

Convention shall apply with respect to 

such documents.’’ The referenced 

Schedule provides at paragraph 3 that 

‘‘[t]he fees charged for issue of the 

document shall not exceed the lowest 

scale of charges for national passports.’’ 

Id. 

After carefully considering this 

comment, DHS has determined that the 

fee for the Refugee Travel Document 

should be lowered to match the fee 

charged for the issuance of passports. 

The Department of State passport fee for 

an adult over the age of 16 is $110 plus 

a $25 execution fee. For an applicant 

under the age of 16, the fee is $80 plus 

a $25 execution fee. Accordingly, this 

final rule reduces the fee for the filing 

of a Form I–131 for a Refugee Travel 

Document to $135 for an adult age 16 

or older, and $105 for a child under the 

age of 16. USCIS will continue to charge 

the $85 biometrics fee since that fee is 

intended to cover the costs of a service 

that is separate from the issuance of the 

refugee travel document. The fee for 

other applications for advance parole 

and travel documents will be $360 as 

calculated in the model. See 8 CFR 

103.7(b)(1)(i)(M). 

4. Fee Decreases 

A number of commenters questioned 

the rationale of implementing fee 

decreases. Some commenters suggested 

that fees that are set to decrease should 

instead be increased in order to mitigate 

the impact of other fee increases. A few 

commenters opined that only 

immigration benefit requests filed by 

employers should increase, while those 

filed by individuals should not, 

reasoning that employers can better 


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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 58973 

afford fee increases. On the other hand, 

many commenters argued against 

increasing fees for petitions filed by 

employers, stating that increasing the 

fees for those petitions may increase 

reluctance by employers to hire nonU.S. citizens. Also, a number of 

commenters expressed appreciation for 

the fee decreases. 

USCIS believes that it is important 

that fees be based as much as possible 

on the relative identifiable costs 

associated with providing each 

particular benefit or service to follow 

the spirit of government-wide fee setting 

guidelines in OMB Circular A–25, the 

CFO Act, and FASAB guidance. USCIS 

uses an activity-based cost model to 

determine the appropriate fee for each 

immigration benefit request. This model 

considers a variety of factors such as 

budgetary costs, the number of 

anticipated requests, the time necessary 

to adjudicate the request, the locations 

that receipt and complete the request 

and their associated resources, and the 

number of fee waivers or exemptions 

that may be granted for each form type. 

Over time, these factors may change 

resulting in a lower calculated fee for 

certain requests. Additionally, to 

improve transparency and account for 

the impact of investments in 

technology, USCIS will consider 

incorporating a productivity measure 

into the next fee rule that will capture 

the outcomes of these investments on 

USCIS operations. Greater efficiency in 

processing, resulting in reduced 

adjudication times or fewer resource 

requirements, may also lead to fee 

reductions. 

USCIS must ultimately implement a 

fee change that is based primarily on 

cost. In instances where costs are 

shifted, USCIS must ensure that the 

logic supporting these shifts is applied 

in a fair and consistent manner. It 

would not be fair for USCIS to prevent 

an immigration benefit request from 

realizing a legitimate fee decrease in 

order to reduce costs to other applicants 

and petitioners. Shifting an inordinate 

amount of costs to petitions filed by 

employers would also be unfair. USCIS 

will continue to realize fee decreases as 

they occur. 

C. Fee Waivers and Exemptions 

Statutes and policy exempt certain 

classes of applicants and petitioners 

from paying fees, and waive some fees 

for individuals who demonstrate an 

inability to pay. USCIS received many 

comments concerning the fee exemption 

and waiver process. Most commenters 

thought that expansion of the 

immigration benefit requests available 

for fee waivers would promote legal 

immigration. Some commenters noted 

that the fee waiver process lacked 

standardization and that individuals 

faced challenges when applying for fee 

waivers. Other commenters suggested 

that USCIS offer fee waivers for 

immigration benefit requests that are not 

currently waivable, or exempt 

additional classes of applicants and 

petitioners from certain fees. Others 

suggested that fees be raised to shift 

costs to particular kinds of applicants to 

reduce increases or reduce current fees 

for certain other applicants. 

Under the new fee structure, USCIS 

anticipated waiving fees for a certain 

percentage of applicants. USCIS also 

provides for a number of exemptions, 

where fees are not charged because a 

large percentage of applicants would 

clearly be unable to pay. These 

exemptions include a range of 

humanitarian and protective services, 

such as refugee and asylum processing, 

and other related services. USCIS also 

anticipates that it may allow a type of 

case to request a per case waiver of the 

fees based on economic necessity, such 

as in the case of an earthquake, 

hurricane, or other natural disaster 

affecting a localized population of 

people who may file requests, although 

all others who file the same kind of 

application must pay the fee. 

To the extent not supported by 

appropriations, the cost of providing 

free or reduced services must be 

transferred to all other fee-paying 

applicants. That is one reason why 

USCIS is relatively conservative with 

respect to intentionally transferring 

costs from one applicant to others 

through fee waivers. However, various 

comments to the proposed fee rule 

suggested expanding the range of 

applications and petitions for which we 

would consider a fee waiver. 

1. Asylee Benefits and Status 

Adjustment 

USCIS received some comments 

requesting exemption from adjustment 

of status fees based on having 

previously been granted asylum, citing 

the general inability to pay of this 

population. USCIS currently allows 

asylees to apply for a fee waiver when 

applying for adjustment of status. 8 CFR 

103.7(c)(5)(ii). See also new 8 CFR 

103.7(c)(4)(iii). Asylees are not required 

to pay filing fees for employment 

authorization documents, providing 

them with a means to become gainfully 

employed and earn wages to cover the 

cost of adjustment. 8 CFR 103.7(c). 

Granting an exemption to adjustment of 

status fees for this class of immigrant 

will increase the fees paid by other 

applicants. USCIS will continue to offer 

fee waivers to eligible asylee adjustment 

of status applicants. USCIS will 

undertake a comprehensive review of 

policies related to refugees and asylees; 

however, DHS is providing no fee 

exemption in the final rule. 

2. Expansion of Fee Waivers and 

Exemptions 

A number of commenters requested 

that more immigration benefit requests 

be available for fee waivers or be exempt 

from filing a fee. Commenters suggested 

that a fee waiver be generally available 

for travel documents, employment 

authorization documents, and the 

immigrant visa, among other suggested 

forms. 

a. Travel and Employment 

Authorization Documents and 

Immigrant Visas 

The Immigration and Nationality Act, 

as amended, prohibits DHS, the 

Department of State (DOS), and 

immigration judges from admitting or 

granting adjustment of status to 

permanent resident to any alien who is 

likely to become a public charge at any 

time. See INA section 212(a)(4), 8 U.S.C. 

1182(a)(4). In addition, applicants and 

petitioners are required to complete 

affidavits of support declaring that the 

recipients of certain benefits will be 

self-supported (or supported by the 

petitioner) and will not require public 

funding for support. This need to prove 

a certain level of financial wherewithal 

in order to qualify for a certain benefit 

would be incongruous with the ability 

to extend fee waiver authority to those 

benefit requests. A fee waiver could 

conflict with the requirement that an 

applicant or beneficiary be eligible for 

the service requested. 

DHS has expanded fee waivers and 

exemptions to additional immigration 

benefit requests and classes of applicant 

over the last few years. See, for example, 

Adjustment of Status to Lawful 

Permanent Resident for Aliens in T or 

U Nonimmigrant Status, 73 FR 75540 

(Dec. 12, 2008) (allowing a fee waiver 

for Form I–485 and requests for waivers 

of inadmissibility). In this final rule, 

DHS has authorized the USCIS Director 

to approve and revoke exemptions from 

fees, or provide that the fee may be 

waived for a case or class of cases that 

is not otherwise provided in 8 CFR 

103.7(c). New 8 CFR 103.7(d). USCIS 

believes that these adjustments will 

ensure that fee waivers are applied in a 

fair and consistent manner, that aliens 

who are admitted into the United States 

will not become public charges, and that 

USCIS will not shift an unreasonable 

amount of costs to other fee-paying 


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applicants to recover funding lost due to 

fee waivers. 

DHS has decided not to authorize fee 

waivers where such a waiver is 

inconsistent with the benefit requested. 

For example, several commenters 

suggested that USCIS should consider 

allowing fee waivers for reentry permits, 

refugee travel documents, and advance 

parole when an alien wants to travel 

abroad. In essence, this argument 

suggests that although the applicant is 

prepared to incur the cost of traveling 

internationally, USCIS should consider 

waiving the application fee and instead 

transfer that cost to others. Expanding 

fee waivers into such areas moves away 

from clear economic necessity to merely 

choosing to provide one applicant with 

an advantage over another. 

A number of commenters suggested, 

however, that USCIS allow fee waiver 

requests for Application for Travel 

Document, Form I–131, in cases of 

humanitarian parole. DHS’s experience 

with the 2010 Haitian earthquake relief 

efforts has shown that many recipients 

of humanitarian parole are worthy of 

consideration of a fee waiver. DHS 

agrees that some applicants could be of 

limited means and the fee may be 

particularly burdensome to this 

population. Thus, as suggested by the 

commenters, DHS has decided to revise 

the final rule to add requests for 

humanitarian parole to the list of forms 

that are eligible for a fee waiver upon a 

showing of the inability to pay. See 8 

CFR 103.7(c)(3)(iv). In addition, DHS 

encourages those who believe that they 

have a sufficiently sympathetic case or 

group of cases in any type of benefit 

request to submit a request to their 

USCIS local office for a waiver under 8 

CFR 103.7(d). 

b. Waiver Eligibility for Notices of 

Appeal or Motions 

DHS is adding a provision to the fee 

for the Notice of Appeal or Motion, 

Form I–290B, to provide that the fee to 

file an appeal or motion to reopen 

following a denial of an immigration 

benefit request that is exempt from a fee 

or the fee was waived may be waived by 

USCIS upon a showing by the applicant 

or petitioner of inability to pay. See 

New 8 CFR 

103.7(b)(1)(i)(M)(v)(c)(ii)(3)(vi). DHS has 

made several immigration benefit 

requests exempt from fees due to 

humanitarian or other considerations. 

As a result of comments expressing 

concern about the cost of appeals, DHS 

has decided that it is appropriate to 

allow the applicant or petitioner who 

received a fee exemption or was granted 

a fee waiver for the underlying 

application or petition to request that 

the fee to appeal a denial of such form 

be waived. DHS decided that it was not 

appropriate to exempt all appeal and 

motion fees for denials of fee exempt 

requests because fee exemptions are 

provided based on a number of 

considerations, and a fee waiver is a 

decision based on financial status. DHS 

believes it is appropriate to provide that 

the fees may be waived in the case of 

financial hardship. 

c. Military Naturalizations 

Similarly, DHS is also adding a 

provision to exempt members or 

veterans of the U.S. Armed Forces from 

paying the fee for Request for Hearing 

on a Decision in Naturalization 

Proceedings, Form N–336. See New 8 

CFR 103.7(b)(1)(WW). These individuals 

are currently exempt from paying the 

Application for Naturalization, Form N– 

400, fee. As a result, those members or 

veterans of the U.S. Armed Forces 

whose N–400s have been denied will 

often file another Application for 

Naturalization for free rather than file an 

appeal using the proper form (Form N– 

336) to avoid the fee associated with 

that appeal. DHS is making this change 

to correct this anomaly and to conform 

to the intent of the National Defense 

Authorization Act of 2004, which 

provides for free naturalization for 

military members. See INA section 

328(b), 8 U.S.C. 1439(b)(4). DHS is also 

providing that members of the military 

are exempt from paying the fee for an 

Application for Certificate of 

Citizenship, Form N–600, to conform to 

the same intent. See New 8 CFR 

103.7(b)(1)(i)(AAA). 

d. Arrival-Departure Records 

Several commenters suggested 

allowing a fee waiver for an Application 

for Replacement/Initial Nonimmigrant 

Arrival-Departure Document, Form I– 

102, when filed by a refugee, asylee, a 

victim of trafficking, and others whose 

immigration status is based on 

humanitarian grounds. USCIS does 

provide initial documentation to such 

individuals without additional charge. 

Fees are currently charged only to 

replace a document or to change a 

document where the individual changes 

his or her name. 8 CFR 103.7(b)(1)(H). 

USCIS does not believe that expanding 

fee waivers to such replacements is an 

appropriate cost transference to other 

applicants. Hardship cases may submit 

a request to their local office for a fee 

waiver under 8 CFR 103.7(d). No 

changes have been made to the rule as 

a result of these comments. 

3. Standardization of the Fee Waiver 

Process 

Some commenters cited difficulty in 

navigating the fee waiver process. 

USCIS agrees that the fee waiver process 

would benefit from standardization. 

DHS has revised 8 CFR 103.7(c) to be 

easier to read, understand, and follow in 

order to bring clarity and consistency to 

the fee waiver process. In addition, 

USCIS has proposed a new form to 

facilitate the fee waiver process— 

Request for an Individual Fee Waiver, 

Form I–912. See Agency Information 

Collection Activities: Form I–912; New 

Information Collection; Comment 

Request, 75 FR 40846 (July 14, 2010). 

USCIS consulted with, and received 

valuable input from, stakeholders and 

community-based organizations in 

developing Form I–912. Form I–912 was 

available for public comment at 

www.regulations.gov until September 

13, 2010. The new form will clearly 

outline the requirements and 

documentation necessary to support a 

request for a fee waiver. This form can 

be used to submit fee waiver requests 

for eligible applications, petitions, and 

biometric services. USCIS intends to 

make it easier to request a fee waiver by 

regulating this process and expects to 

finalize Form I–912 promptly. 

4. Commonwealth of the Northern 

Mariana Islands (CNMI) Transitional 

Worker 

One commenter requested a reduction 

in fees or a fee waiver for the adjustment 

of status of family members within the 

two-year transition period of the 

implementation of the Consolidated 

Natural Resources Act of 2008, Public 

Law 110–229, 122 Stat. 754 (2008). 

Fee waivers are not generally 

available for employment-based 

immigration benefit requests. Due to the 

unique circumstances present in the 

CNMI, however, DHS published an 

interim rule that provided for a separate 

Form I–129 called the I–129CW, 

Petition for a Nonimmigrant Worker in 

the CNMI, and provided in that rule that 

USCIS adjudicators may waive the fee 

for Form I–129CW in certain 

circumstances if the petitioner is able to 

show inability to pay. See 8 CFR 

103.7(c)(5)(i), Commonwealth of the 

Northern Mariana Islands Transitional 

Worker Classification, and 74 FR 55094 

(Oct. 27, 2009). DHS has also included 

that waiver authority in this rule. See 8 

CFR 103.7(b)(1)(i)(J); 8 CFR 

103.7(c)(3)(iii). That authority will not 

take effect, however, until DHS has 

considered comments on the interim 

rule and published a final rule. Thus, 

the comment on fee treatment specific 


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to the CNMI has been entered into the 

docket of that rule, and will be 

considered in drafting that final rule as 

well as other rules that will implement 

the CNRA. Nevertheless, due to the 

inherent inconsistency between 

sponsoring an alien for employment and 

being unable to pay the requisite fee for 

that sponsorship, USCIS expects that 

the situations when an employer would 

adequately demonstrate an inability to 

pay will be extremely limited. 

D. Naturalization 

USCIS received some comments 

suggesting that the naturalization fee be 

raised to an arbitrarily higher amount to 

reflect the value of U.S. citizenship. 

Some commenters praised USCIS for 

not increasing the fee for naturalization, 

while other commenters requested that 

the fee be lowered even more, citing the 

fee as a deterrent to naturalization. 

USCIS recognizes the importance of 

immigrant integration and seeks to 

promote citizenship. At the same time, 

USCIS must balance costs and ensure 

that applicants and petitioners are not 

burdened with excessive surcharges and 

subsidies. Additional reductions to the 

naturalization fee would result in 

increases to other immigration benefit 

fees; therefore USCIS will keep the fee 

at its current level of $595. Accordingly, 

DHS has determined that the fee for 

Form N–400, Application for 

Naturalization, will remain at its current 

level of $595, even though this fee 

should have increased under the fee 

rule methodology. 

A few commenters questioned the 

increase to Forms N–600/600K, 

Applications for Certificates of 

Citizenship. The commenters contended 

that in the case of children, USCIS will 

have already performed the bulk of the 

adjudicative work for these applications 

when USCIS processes the parent’s 

Application for Naturalization. 

Commenters stated that the N–600 

requires very little adjudicative time to 

process. While some applications may 

be simple, the type of research required 

for each applicant may be complex and 

the level of research required will vary 

based on the individual circumstances. 

USCIS is required to establish whether 

the Application for Naturalization was 

appropriately granted and the time 

required to research and verify the 

validity of that application requires 

significant resources. In addition, this 

application is not limited to those 

eligible due to a parent’s naturalization, 

and cases involving derivative 

acquisition of citizenship can 

sometimes be very complex. If USCIS 

were to freeze this fee just as it did the 

N–400 fee, this change would force 

other fee-paying applicants and 

petitioners to subsidize the cost of 

processing Applications for a Certificate 

of Citizenship. We do not believe that 

such a result is justified here. 

DHS has decided to make one change 

to the fee for Forms N–336 and N–600. 

DHS is modifying the fee for a Request 

for a Hearing on a Decision in 

Naturalization Proceedings (Under 

Section 336 of the INA), and an 

Application for Certification of 

Citizenship, Form N–600, to provide 

that there is no fee for such requests 

from a member or veteran of the 

military. See New 8 CFR 

103.7(b)(1)(i)(W) and (AAA). USCIS is 

precluded by law from collecting a fee 

from members of the military for an 

Application for Naturalization under 

sections 328 and 329 of the INA. DHS 

has determined that it is in keeping with 

the Congressional intent in passage of 

sections 328 and 329 to show a 

preference to members and veterans of 

the military in similar proceedings, thus 

it is appropriate that these requests for 

a certificate if citizenship also be 

permitted without fee. 

E. Improve Service and Reduce 

Inefficiencies 

1. Service Improvement and Fees 

Many commenters noted lengthy 

waiting times to process immigration 

benefit requests and highlighted the 

need to improve overall customer 

service. These comments suggested that, 

regardless of whether the proposed fees 

were justified, applicants and 

petitioners should not be asked to pay 

the full fee increase until USCIS 

improves service. Others suggested that, 

even if fees were increased before 

service level improvements were made, 

there should be detailed commitments 

to service level improvements to ensure 

that increased revenues are used to 

improve service. 

Some comments stated that USCIS 

has increased fees before with the 

promise of improved services, but never 

fully delivered on that promise. As 

outlined in the proposed rule and 

supporting documentation, USCIS 

delivered nearly all of the promised 

processing time performance and 

deployed most of the projects funded 

through resource enhancements in the 

2008/2009 fee rule. 75 FR 33445, 

33451–33453. USCIS is firmly 

committed to continue to improve 

operations and service, particularly as 

business transformation is deployed 

over the next five years. 

Some commenters asserted that 

USCIS had not improved service since 

implementation of the previous fee rule, 

which went into effect on July 30, 2007. 

DHS disagrees. USCIS continues to 

work on service improvements. USCIS 

made substantial progress towards 

achieving processing goals over the FY 

2008/2009 biennial period. For 

example: 

• USCIS processed nearly 1.2 million 

naturalization requests in FY 2008, 56 

percent more than 2007. As of June 

2010, there were approximately 299,000 

naturalizations cases pending—one of 

the lowest levels in the recent history of 

USCIS. A surge response plan 

implemented in FY 2008 enabled USCIS 

to meet nearly all FY 2008/2009 fee rule 

processing time reduction goals by the 

end of FY 2009. 

• USCIS and the Federal Bureau of 

Investigation (FBI) effectively 

eliminated the National Name Check 

Program (NNCP) backlog. NNCP now is 

now able to complete 98 percent of 

name check requests submitted by 

USCIS within 30 days, and the 

remaining 2 percent within 90 days. 

• USCIS has implemented electronic 

adjudication of some cases to help staff 

focus attention on more complex cases 

where discrepancies have been found. 

• USCIS is transitioning to a new U.S. 

Department of the Treasury lockbox 

provider and away from dispersed 

collection points to improve intake 

operations and the control and timing of 

fee deposits. 

Process improvements implemented 

over the past several years, as well as 

projected productivity increases, are 

taken into account in the current fee 

review, keeping fees lower than they 

might otherwise have been. Future 

productivity enhancements are expected 

to produce lower costs per unit that will 

be reflected in fee adjustments. 

Other commenters recommended that 

USCIS conduct studies to analyze 

processing times at different locations 

and shift work to locations that have 

demonstrated efficiency in completing 

the work. USCIS agrees that it is 

important to distribute work to account 

for workload and productivity levels. 

USCIS continually monitors 

performance at its locations and 

analyzes resources to ensure that its 

Field Offices and Service Centers have 

the capacity to process immigration 

benefit requests in a timely manner. 

USCIS has implemented ‘‘bispecialization’’ of forms at its Service 

Centers, which aligns the processing of 

most forms at one of two pairs of 

Service Centers, such that any 

individual form subject to bispecialization is adjudicated at only two 

of the four regional Service Centers. 

This change increases processing 

uniformity and allows the Service 


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Centers to improve proficiency in 

adjudications. USCIS is also shifting 

certain tasks, such as intake, to 

centralized locations in order to take 

advantage of economies of scale and 

develop expertise in processing 

methods. 

Some commenters requested that 

USCIS increase its ability to receive 

different forms of payment. USCIS 

agrees with these comments and has 

deployed credit card processing 

machines to all of its Field Offices. 

Credit card payment is available for 

immigration benefit requests submitted 

in-person. Some have suggested that 

USCIS expand credit card payments to 

immigration benefit requests that are 

mailed to USCIS, but USCIS believes 

that option could provide a path for 

fraud and abuse. USCIS continues to 

explore ways to modernize and 

streamline fee collection processes. 

A number of commenters protested 

the increase in the Application to 

Replace Permanent Resident Card, Form 

I–90. Some commenters offered 

anecdotal evidence outlining multiple 

instances when a permanent resident 

card was not delivered to the recipient. 

Commenters opined that it was easier to 

pay the I–90 fee again, even though their 

cards were not delivered, than to protest 

the lack of delivery of the cards. In FY 

2008, USCIS developed a secure mail 

delivery process referred to as the 

Secure Mail Initiative (SMI) whereby reentry permits and refugee travel 

documents are delivered via the U.S. 

Postal Service Priority (USPS) Mail. 

This change allows documents to be 

delivered by USPS in two to three days 

with delivery confirmation. This year, 

the SMI process was expanded to USCIS 

locations that receive and re-mail 

undeliverable permanent resident cards 

and employment authorization 

documents. Permanent resident cards 

not initially received by recipients are 

processed using the SMI. However, 

USCIS agrees that permanent resident 

card delivery deserves special 

consideration. USCIS intends to deliver 

all permanent resident cards (initial 

deliveries and re-deliveries) through 

SMI once revenue is deemed sufficient 

to fully support the initiative. 

Ultimately, USCIS fees are based on 

the processing costs for immigration 

benefit requests. Any structural deficit 

between costs and fees could create and 

accelerate the growth of backlogs and 

deteriorate service levels. The proposed 

fee adjustments and this final rule 

reflect this concern. Thus, while USCIS 

addresses the spirit of the comments by 

continually searching for ways to 

improve its service, no specific changes 

are being made to the final rule to 

address these comments. 

2. Multiple Biometric Data Requests 

A few commenters pointed to the fact 

that applicants or petitioners must 

provide biometric data more than once 

if they file several applications or 

petitions and their biometrics submitted 

for previous requests has expired. Some 

commenters considered the expiration 

of fingerprint submissions to be 

inefficient. Others suggested that it was 

inefficient for USCIS to again request 

biometrics when they apply for 

sequential benefit applications. 

Biometrics (which include 

fingerprints and photographs) submitted 

to USCIS are valid for 15 months. This 

validity period, in most cases, provides 

sufficient time for an immigration 

benefit request to be processed. USCIS 

utilizes the Biometrics Storage System 

and the Benefits Biometric Storage 

System to store biometric data and 10- 

print fingerprints, respectively. These 

systems allow USCIS to reuse and 

resubmit biometrics as long as an 

immigration benefit request has been 

adjudicated within the 15 month 

validity period. If there are processing 

delays at USCIS, USCIS does not charge 

the applicant the biometrics fee again if 

the 15 month validity period expires. 

When an applicant later reapplies to 

renew a benefit or for another benefit, 

the biometrics appointment is not 

simply an opportunity to re-take the 

biometrics again; it is an opportunity to 

use biometrics to verify his or her 

identity. 

The biometrics fee covers costs 

associated with the use of the collected 

biometrics to pay the cost of FBI and 

other background checks. Thus, an 

applicant will pay the biometrics fee 

whenever he or she files another 

immigration benefit request that 

requires the collection, updating, or use 

of biometrics for background checks. 

As USCIS transforms its systems to a 

more fully electronic application 

process, biometrics will be stored and 

generally reused for the purpose of the 

same and/or multiple benefit purposes. 

Consequently, current operational 

practices in this area for most benefit 

types are based primarily on pretransformation business structures and 

information systems. Future fee rules 

will take into account the 

transformation program, and therefore 

no adjustments are made to this final 

rule based on these comments. 

Biometric fees will continue to balance 

the initial capture, reuse, identity 

verification, and anti-fraud functions 

performed whenever an applicant or 

petitioner, or other individual, is 

required to submit fingerprints. 

3. Transformation 

A number of commenters noted that 

USCIS should not increase fees until 

business process reengineering takes 

place. Commenters stated that USCIS 

should move from a primarily paperbased processing environment to a webbased one. Many commenters called for 

simplified processes and more 

electronic processing. Commenters also 

questioned the management and 

viability of USCIS’ current 

transformation program. 

USCIS agrees that transitioning to 

electronic adjudication is an important 

priority. USCIS is committed to 

improving the efficiency and 

effectiveness of its immigration 

processing system and will dedicate the 

funds and management attention 

necessary to complete this task. 

Electronic filing is currently available 

for seven of the most common benefit 

requests, as well as premium processing 

service requests. USCIS expects to 

deploy the initial increment of its 

transformation program by the end of 

FY 2011. As one of the Administration’s 

High Priority Performance Goals, USCIS 

has committed to ensuring that at least 

25% of applications will be 

electronically filed and adjudicated 

using the new transformed integrated 

operating environment by FY 2012. 

Transforming the paper-based USCIS 

adjudication process is crucial to 

fundamentally improving USCIS 

response to evolving applicant and 

petitioner needs and modern 

immigration demands. USCIS 

transformation is an employee-driven 

effort to redefine business processes and 

systems and create a more modern, 

secure, and customer-focused 

organization. For benefit seekers, this 

means 24–7 online account access and 

real-time updates. For employees and 

interagency partners, it means more 

efficient case management and 

improved information sharing. For the 

American public, it means greater 

national security due to enhanced risk 

and fraud detection capabilities. 

Ultimately, transformation will 

fundamentally alter the way USCIS does 

business and will advance it from a 

paper-based organization to a more 

efficient government component, 

capable of meeting 21st century 

immigration demands. However, USCIS 

transformation will not happen 

overnight. Changes will be implemented 

over the next five years, and stakeholder 

input is at the forefront of this process. 

Feedback from employees, intergovernmental partners, and the 


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immigration community is critical to the 

success of the transformation program. 

The transformation solution will be 

implemented in two phases that follow 

the natural progression of the 

immigration lifecycle, beginning with 

nonimmigrant benefits. The first phase, 

which is scheduled to deploy beginning 

in the fourth quarter of FY 2011, will 

shift USCIS from application-based 

services to applicant- and petitionerbased electronic services for 

nonimmigrant benefits. The second 

phase, which is scheduled to deploy 

from calendar years 2012 to 2014, will 

apply the new capabilities progressively 

to the remaining USCIS benefits in three 

distinct releases, starting with 

immigrant benefits, followed by 

humanitarian benefits, and ending with 

citizenship. As lines of business are 

transformed, instead of using paper 

forms and manually transmitting 

information, applicants and petitioners 

will primarily apply for benefits using 

online accounts—similar to the way 

most banks use electronic accounts 

today. Data will be transmitted 

electronically and USCIS employees 

will view the data in a streamlined 

automated environment. Cases will 

automatically be assessed for risk and 

assigned to appropriate adjudicators. 

Office caseloads will be managed 

according to volume, allowing 

supervisors and managers the ability to 

make informed decisions and balance 

workloads across USCIS. Adjudicators 

will have access to complete case 

records in user-friendly, electronic 

formats, allowing them to make timely, 

accurate, ‘‘one-touch adjudication’’ 

decisions. 

4. Increases Relative to Time 

Some commenters suggested that 

some fees were excessive for certain 

benefit requests relative to the time it 

takes to process the requests. 

Commenters also recommended that 

USCIS consider reducing fees for 

variations of a form that may take less 

time to process. For example, one 

commenter suggested that it may take 

less time to process an Immigrant 

Petition for Alien Worker, Form I–140, 

when it is accompanied by a labor 

certification than at other times. DHS 

agrees with the concerns of the 

commenter in principle, but the current 

modeling and data do not support the 

detailed analysis that is necessary to 

drive these distinctions into the activitybased costs. In the future, USCIS 

intends to use its transformed systems 

to perform a more in-depth analysis of 

immigration benefit requests, eventually 

examining the fee structure and 

processing costs of each of the various 

benefit requests that are filed regardless 

of the form used, such as the multiple 

employee types petitioned for on Forms 

I–140 and I–129, Petitions for Immigrant 

and Nonimmigrant Workers. USCIS 

does not possess the data gathering and 

reporting capacity to support such 

analysis and this type of fee system at 

this time. 

USCIS also understands the 

commenters’ desire to have their 

requests processed as quickly as 

possible and that some USCISadministered benefits are subject to 

more processing delays than others. In 

general, delays do not factor into the 

calculation of fees, except as they relate 

to the complexity of the adjudication. 

The primary basis of the USCIS fee 

model is administrative complexity, 

which is the amount of work necessary 

to process a particular kind of 

application or petition (identified as 

‘‘Make Determination’’ activity in the 

proposed rule). The calculation also 

factors in other direct costs, such as the 

cost of producing and delivering a 

document when that is part of the 

processing of a particular benefit. In 

addition to these costs, the fee 

calculation model factors in the full 

costs of USCIS operations, including 

services provided to other applicants 

and petitioners at no charge, overhead 

costs (e.g., office rent, equipment, and 

supplies) associated with the 

adjudication of the immigration benefit 

request, and other processing costs. 

These latter costs include responding to 

inquiries from the public (‘‘Inform the 

Public’’ activity); immigration benefit 

request data capture and fee receipting 

(‘‘Intake’’ activity); conducting 

background checks (‘‘Conduct 

Interagency Border Inspection System 

Checks’’ activity); the acquisition and 

creation of files (‘‘Review Records’’ 

activity); preventing and detecting fraud 

(‘‘Fraud Prevention and Detection’’ 

activity); when applicable, producing 

and distributing secure cards (‘‘Issue 

Document’’ activity); and electronically 

capturing biometrics (fingerprint and 

photograph), background checks 

performed by the FBI, or use of the 

collected biometrics to verify the 

identities of applicants (‘‘Capture 

Biometrics’’ activity). Thus, no changes 

are made in the final rule as a result of 

these comments. 

5. Fee Refunds 

Some commenters were opposed to 

the fee increase for the Notice of Appeal 

or Motion, Form I–290B. Commenters 

thought that the fee, though waivable, 

could hinder individuals and prevent 

them from receiving benefits they 

deserve. They noted that the time 

involved in submitting a fee waiver 

request jeopardized their chance of 

meeting the 30-day filing deadline for 

an appeal. Commenters also expressed 

disappointment in the appeals process 

in general, noting that it was 

particularly burdensome for those who 

are attempting to, as they perceive it, 

rectify an error made by USCIS. 

Commenters suggested that USCIS 

develop a system to refund fees paid 

because of USCIS error. Multiple 

commenters cited being required to pay 

for Form I–290B or the Application for 

Action on an Approved Application or 

Petition, Form I–824, due to USCIS 

error. 

USCIS has in the past agreed with the 

findings of the USCIS Ombudsman, who 

recommended developing more 

consistent and clear procedures for 

processing motions to reopen and 

reconsider. See http://www.uscis.gov/

USCIS/Office%20of%20

Communications/Homepage/

Ombudsman%20Liaison%20Unit/

OLU%20Responses%20to%20

Formal%20Recommendations/rec42_

18aug09.pdf. USCIS is also developing 

a fee refund process. The intent of that 

process is to provide a simple, 

expeditious system to point out clear 

administrative errors made by USCIS 

and to receive a rapid remedy from 

USCIS mistakes. USCIS has undertaken 

an internal review of the fee refund 

process, its associated internal 

procedural policy memo, and a new fee 

refund form. The results of this review 

are planned for inclusion in USCIS’ next 

fee study. 

Some commenters also mentioned the 

perceived risk in filing Forms I–290B, 

noting that they may not be routed 

properly. In addition to the 

aforementioned process changes, USCIS 

now accepts Form I–290B at its lockbox 

facilities for applicants and petitioners 

filing an appeal or motion concerning a 

decision made in a USCIS field office. 

Filing at a lockbox facility provides 

individuals with a receipt and facilitates 

enhanced case tracking for USCIS 

applicants and petitioners. Lockbox use 

also ensures that the I–290B intake 

process is timely. DHS believes this 

centralized filing and handling will 

alleviate the timing issues that the 

commenters raised and that these 

actions and changes are responsive to 

the comments, though no changes to the 

final rule were made as a result of them. 

DHS is adding one additional change 

to the fee for the Notice of Appeal or 

Motion. Based on an analysis of the 

public policy objectives and related 

legislation, DHS is providing that there 

is no fee for an Iraqi or Afghan national 

who worked for or on behalf of the U.S. 


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Government in Iraq or Afghanistan to 

appeal a denial of a petition for a special 

immigrant visa. The National Defense 

Authorization Act of 2008 provided that 

neither DOS nor DHS may collect any 

fee in connection with an application 

for, or issuance of, a special immigrant 

visa for an Iraqi or Afghan national who 

worked for or on behalf of the U.S. 

Government in Iraq or Afghanistan. 

Section 1244 of the National Defense 

Authorization Act, 2008, Public Law 

110–181, 122 Stat. 3, as amended by 

Public Law 110–242, 122 Stat. 1567 

(Jan. 28, 2008). DHS believes it is 

keeping with the language of that statute 

to also provide an appeal of such an 

application for no charge. Thus, DHS 

has changed the final rule to provide 

that when such a petition is denied, the 

petitioner may appeal by filing a Notice 

of Appeal or Motion without fee. 

6. Customer Service and the Office of 

Public Engagement 

Some commenters requested more 

access to USCIS to encourage a 

constructive and efficient dialogue 

between the parties with the hopes of 

significantly reducing overall processing 

times, helping identify policy and 

process defects, resolving questions, and 

providing corrections and clarifications 

on various immigration benefit requests. 

Many commenters detailed customer 

service issues, and incidences of poor 

customer service, with various USCIS 

offices. A number of commenters 

believed that USCIS should not increase 

fees until customer service improves. 

USCIS is dedicated to ensuring that 

stakeholders are fully informed of its 

programs and processes, and can 

provide input regarding USCIS 

priorities, policies and programs, and 

assessing organizational performance. 

USCIS seeks to build new partnerships 

and enhance existing relationships with 

a broad range of stakeholders, including 

community-based and faith-based 

organizations, state and local 

government representatives, advocacy 

groups, and other stakeholders 

interested in USCIS policies and 

operations. Such partnerships enable 

USCIS to maintain a transparent and 

collaborative approach to policy making 

and operations through information 

sharing, stakeholder feedback, and 

engagement opportunities. USCIS hosts 

frequent engagements on a broad range 

of issues, welcomes input on topics of 

concern from the stakeholder 

community, and seeks to provide 

opportunities for stakeholders to submit 

feedback to USCIS. The recently 

established USCIS Office of Public 

Engagement (OPE) facilitates and 

coordinates outreach and engagement 

and directs USCIS-wide dialogue with 

external stakeholders. 

USCIS is currently implementing a 

policy review to comprehensively 

examine policy, guidance, and 

procedures. Collectively, we believe that 

these actions are responsive to these 

comments. We have not revised this 

final rule in response to the comments. 

F. Premium Processing 

Premium processing is a program by 

which a petitioner for a nonimmigrant 

worker may pay an extra amount to 

ensure that the petition will be 

processed in 15 days. The premium 

processing fee was statutorily 

authorized in 2000 for employmentbased applications and petitions and 

was set at $1,000. See INA section 

286(u), 8 U.S.C. 1356(u); 8 CFR 103.2(f); 

new 8 CFR 103.7(b)(1)(i)(QQ), and (e). 

Premium processing is currently 

authorized for certain classifications 

filing a Petition for a Nonimmigrant 

Worker, Form I–129, or an Immigrant 

Petition for Alien Worker, Form I–140. 

See new 8 CFR 103.7(b)(1)(i)(RR), and 

(e); USCIS Web site at www.uscis.gov. 

For example, petitioners would pay the 

$580 fee for a Form I–140 under this 

rule, plus $1,225 for premium 

processing. 

Some commenters suggested that 

premium processing be expanded to 

other immigration benefit requests, 

while other commenters argued against 

an increase to the premium processing 

fee. Some commenters stated that 

premium processing is essentially 

mandatory, rather than optional, to 

ensure the timely and efficient 

processing of their employment-based 

petitions. 

1. Expansion of Premium Processing 

Service 

The comments suggesting the 

expansion of premium processing are 

similar to other comments that believe 

fee increases generally will result in 

better service. USCIS understands the 

desire of the commenters to be able to 

obtain faster processing of all 

immigration benefit requests. Such 

comments indicate that at least some are 

willing to pay substantially more if 

USCIS can guarantee faster service. 

USCIS has considered expanding 

premium processing to other 

immigration benefit requests beyond 

those currently allowed in conjunction 

with this fee rule. In future reviews, 

USCIS will perform the necessary 

analysis to identify candidates for faster 

processing guarantees, while also 

considering operational limitations that 

may prohibit expansion of premium 

processing into certain areas. USCIS 

will also need to determine the 

appropriate amount to charge for each 

benefit if permitted, and the logistical 

requirements for implementing 

expanded premium services. USCIS has 

not, to date, analyzed the effect of 

premium processing on specific 

application and petition types, but plans 

to consider doing so in the future. 

Premium processing actually moves 

applicants and petitioners to the head of 

the line for adjudication and the 

additional fee permits the devotion of 

specific resources to resolving that 

application or petition. No change is 

made in this rule as a result of these 

comments. Nevertheless, USCIS 

believes that this issue does justify more 

analysis for consideration in future fee 

reviews. 

2. Adjustment to Premium Processing 

Fee 

Some commenters disagreed with an 

increase to the premium processing fee. 

Many cited delays in the process that 

required them to file a request for 

premium processing to ensure receipt of 

a visa in a reasonable amount of time. 

Other commenters mentioned what they 

perceived to be frivolous RFEs that 

contribute to delays in processing these 

visas. For many commenters, premium 

processing increased the likelihood of 

their success in managing the RFE 

process and the visa process in general. 

The commenters stated that an increase 

to the premium processing fee, when 

multiplied by the number of aliens for 

whom they may petition, would be 

particularly burdensome. 

USCIS is striving to increase its 

efficiency in all visa processing and, at 

this time, O and P visa processing. 

Efficiencies in these areas will alleviate 

the need for premium processing 

services and ensure that applicants and 

petitioners can expect to procure these 

visas in a timely manner. USCIS 

recognizes the concerns of the 

commenters and has made the 14-day 

adjudication processing time a goal for 

O and P visa petitions. USCIS is meeting 

that goal at both Service Centers that 

process these petitions. 

In addition to improving processing 

times, USCIS has also undertaken 

several initiatives to improve the quality 

of O and P visa adjudication. An RFE 

project is being developed at the Service 

Centers to revise current RFE standard 

operating procedures to facilitate 

consistent, relevant, concise and clear 

RFE templates. The O and P visa 

classifications are a part of the first 

phase of this project. USCIS is also 

reviewing the Adjudicator’s Field 

Manual, existing policy guidance, and 

training materials to identify focal 


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points for additional guidance and 

training for O and P visa processing. 

Through these efforts, USCIS hopes to 

reduce the number of premium 

processing service requests related to 

these visa categories. 

The percent change in the Consumer 

Price Index for All Urban Consumers 

(CPI–U) was used to adjust the premium 

processing fee. Between June 2001, 

when Congress established the fee, and 

June 2010, the CPI–U increased by 

22.45%. When that percentage increase 

is applied to the current premium 

processing fee of $1,000, the adjusted 

premium processing fee is $1,224 

($1,225 when rounded to the nearest 

$5). See INA section 286(u), 8 U.S.C. 

1356(u). This amount is the same fee in 

the proposed rule and represents the 

final premium processing fee. Adjusting 

this fee by the Consumer Price Index is 

statutorily permissible and is a 

reasonable method for accounting for 

increases in costs for this service. Since 

Congress enacted this original fee level 

(almost ten years ago), labor and 

resource costs have increased 

significantly. The revenues that USCIS 

derives from premium processing 

exceed the marginal costs for providing 

such services. Fees from this activity 

contribute to significant system and 

business process modernization which 

will benefit all applicants and 

petitioners. Therefore, DHS has 

increased the fee in this rule as 

proposed. 

G. New Fees and Forms 

1. Immigrant Visa DHS Domestic 

Processing Fee 

Several commenters questioned the 

appropriateness and the amount of work 

required to justify the proposed 

immigrant visa processing fee. Another 

commenter suggested that fee waivers 

should be available for immigrant visas, 

an issue which is addressed elsewhere 

in this preamble. One commenter 

questioned how USCIS plans to 

implement this new fee, including when 

and where the fee would be payable, 

such as when the immigrant visa 

petition is filed with USCIS, with the 

immigrant visa fee payable to DOS, at 

the time of immigrant visa issuance, at 

the port of entry (POE) prior to 

admission, or by mail after admission is 

completed. Due to staffing and logistical 

issues and convenience for the 

applicant, USCIS has requested that 

DOS collect the fee on USCIS’s behalf. 

Under the Economy Act, 31 U.S.C. 1535, 

USCIS will reimburse DOS for the costs 

DOS incurs in performing this service 

on behalf of USCIS. Still another 

commenter asked how the new fee 

impacts immigrant visa demand. 

USCIS has not conducted an analysis 

to determine the potential impact on 

visa demand, but DHS has determined 

that, irrespective of any potential effect, 

USCIS should no longer shift its costs of 

providing immigrant visas to those 

paying fees for other immigration 

benefits. Based on current projections, 

USCIS expects this fee to generate $74.2 

million during the next fiscal year, a 

sum that otherwise would be charged as 

overhead to all other fee-paying 

applicants and petitioners. 

While the new fee for processing an 

immigrant visa admission packet is 

mostly for an internal recordkeeping 

function based on the transfer of 

documents from one government entity 

to another, the relatively limited nature 

of this activity does not exempt it from 

cost recovery through a unique fee. 

Costs include the initial creation of the 

alien’s ‘‘A-File’’ and production and 

shipment of the permanent resident 

card. These costs are currently borne by 

USCIS, as the DHS agency 

administratively responsible for the 

assigned task, and charged to all fee 

paying applicants and petitioners as an 

overhead expense. Accordingly, DHS 

has decided that these are costs that are 

better charged directly and recovered 

from immigrants as an appropriate 

immigrant visa processing fee. 

A commenter suggested that the 

imposition of a fee for the processing of 

the immigrant visa packet incorrectly 

amounted to funds being paid to USCIS 

for the consular officer’s visa approval 

decision and/or the U.S. Customs and 

Border Protection (CBP) officer’s lawful 

permanent residence admission 

decision to become effective. DHS 

disagrees. The immigrant visa domestic 

processing fee recovers the costs of 

USCIS staff time to process, file, and 

maintain the immigrant visa package 

and the cost of producing the permanent 

resident card. Although the labor or 

effort may seem inconsequential, USCIS 

processes approximately 36,000 of these 

requests per month, totaling almost 

430,000 visa applications, or 

$70,950,000, annually. The volume of 

this activity warrants a significant 

amount of dedicated USCIS resources. 

The costs for these resources are 

currently charged to all fee payers. DHS 

believes that this is an undue burden for 

other fee-paying applicants and 

petitioners and is, therefore, shifting the 

cost of processing immigrant visas to the 

immigrant visa recipients who are the 

beneficiaries of this service. Some 

commenters lauded the implementation 

of the additional fees, recognizing that 

these fees remove some of the cost 

burden from fee-paying applicants. This 

new fee does not alter the costs of, or 

reimburse for, any activity by CBP. No 

changes to the final rule were made as 

a result of these comments. 

2. Civil Surgeon Designation Fee and 

Form 

Some commenters requested that 

military civil surgeons be exempt from 

the new Civil Surgeon Designation Fee. 

DHS agrees. DHS is exempting 

physicians serving in the military or 

employed by the U.S. government from 

the fee required of civil surgeons if 

performing examinations for members 

or veterans of the military, or their 

dependents, who receive care at a U.S. 

military, Department of Veterans 

Affairs, or U.S. government facility in 

the United States. See New 8 CFR 

103.7(b)(1)(i)(SS). 

Another commenter asked clarifying 

questions concerning military civil 

surgeons who must move due to 

reassignment. Specifically, the 

commenter was concerned that civil 

surgeons who must move frequently due 

to military orders would be subject to 

the fee on multiple occasions. DHS 

recognizes that any civil surgeon, 

whether military or civilian, may move 

to a different jurisdiction. Any civil 

surgeon changing his or her address will 

be required to update USCIS on the 

change, and include evidence of 

continued eligibility to serve as a civil 

surgeon by submitting this information 

to their local field office so the civil 

surgeon roster can be updated 

accordingly. At this time, USCIS does 

not intend to charge a fee to update an 

address if a civil surgeon has already 

been designated appropriately. 

An additional concern expressed 

about the civil surgeon designation fee 

was its impact on the availability of 

civil surgeons throughout the United 

States. In particular, a commenter 

indicated that few civil surgeons are 

available in certain parts of the country 

and that the new fee will make it more 

difficult for individuals to receive the 

designation. The commenter also 

indicated that this result will, in turn, 

ultimately prohibit eligible applicants 

for immigration benefits from receiving 

the necessary medical clearance and 

applying for their benefits. 

While DHS is aware of the fact that 

the availability of civil surgeons in some 

areas of the country is greater than in 

others, it does not believe that this 

discrepancy and the imposition of the 

new fee denies applicants the 

opportunity to apply for immigration 

benefits. Based on the existing roster of 

civil surgeons, the number of civil 

surgeons in any given area appears to 


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correlate favorably with the projected 

number of potential immigrants needing 

medical examinations. USCIS is always 

interested in increasing the number of 

civil surgeons in areas of low 

availability in an effort to reduce the 

potential cost impact of this statutorilyrequired exam. While access to civil 

surgeons in rural areas may be limited, 

the commenter has only speculated that 

a new fee would preclude reasonable 

access to civil surgeons. DHS is not 

aware of evidence that supports the 

commenter’s speculation and the 

commenter did not provide any 

additional data to support these claims. 

DHS has a responsibility to ensure the 

integrity of the civil surgeon program 

and has set a fee that recovers the 

operational costs for this program, the 

appropriate overhead and the 

appropriate spread of policy decision 

costs. Without this fee, work performed 

to designate and maintain the civil 

surgeon roster would continue to be 

borne by all fee-paying applicants and 

petitioners. Requiring physicians to pay 

for this designation shifts the costs from 

the general applicant population to the 

physicians who perform the 

examinations and who may derive 

financial benefit (such as a fee) from 

such examinations. No changes to the 

final rule were made as a result of these 

comments. 

3. EB–5 Regional Center Designation Fee 

and Form 

Most EB–5 related comments 

acknowledged the need for a regional 

center designation fee. The commenters 

expressed support for the fee, while also 

noting the need for improvements in 

processing times, collaborative efforts, 

and regulatory development. USCIS 

continues to strive for improved 

processing times, has committed to 

improved stakeholder communications 

with quarterly stakeholder meetings, 

and will pursue regulatory development 

when practical. 

Several commenters, referencing the 

supporting documentation, suggested 

that DHS calculated the Regional Center 

Amendment fee in violation of OMB 

Circular A–25. These comments 

suggested that the DHS Supporting 

Statement: Application for Regional 

Center under the Immigrant Investor 

Pilot Program, Form I–924, and Form I– 

924A (OMB No. 1615–NEW), Docket 

No. USCIS–2009–0033–0003–0006, 

show 40 hours to adjudicate an initial 

designation and only 10 hours to 

adjudicate an amendment. DHS 

disagrees with the commenters. The 

time burden outlined in the supporting 

statement is an estimate of the amount 

of time it takes for filers to complete the 

form, not the time it takes to adjudicate 

the form. This review, and 

documentation required by the 

Paperwork Reduction Act, are discussed 

elsewhere in this preamble. A review of 

a substantial number of recently filed 

amendment requests by previously 

designated regional centers reveals that 

most amendments involve a diverse 

variety of adjudicative issues, such as 

changes in geographic scope, 

organizational structure, capital 

investment projects, and exemplar 

Forms I–526, Immigrant Petition by 

Alien Entrepreneur. No changes were 

made to the final rule as a result of these 

comments. 

Another commenter mentioned the 

proposed amendment to 8 CFR 

204.6(m)(6), which would provide for 

an annual reporting requirement for 

Regional Centers in connection with the 

USCIS authority to terminate a regional 

center’s designation. The commenter 

suggested that the language ‘‘no longer 

serves the purpose of promoting 

economic growth,’’ was vague, and in 

need of more specifics regarding 

practices that are either prohibited or 

required in order for the regional center 

to continue to ‘‘serve the purpose of 

promoting economic growth.’’ The 

commenter recommended that USCIS 

adopt a rule to ensure ongoing regional 

center compliance, such as termination 

proceedings if a regional center does not 

file a single Immigrant Petition by Alien 

Entrepreneur within a fiscal year. 

DHS notes that the regulation at 8 

CFR 204.6(m)(6) already provides a 

means to terminate a regional center if 

the regional center ‘‘no longer serves the 

purpose’’ of the program. DHS believes 

that the potential reasons for the 

termination of a regional center extend 

beyond inactivity on the part of a 

regional center. This regulation 

currently provides for a process of 

notice and rebuttal. The amended 

regulatory language leaves this process 

intact. Regional centers have been and 

will be provided with ample 

opportunity to overcome the reasons for 

termination of the regional center under 

this process. DHS is exploring means by 

which information regarding 

termination proceedings may be shared, 

and will consider making this 

information available in the annual 

disclosure report. DHS is making no 

changes in the final rule as a result of 

this comment. 

A number of comments mentioned 

statutory, regulatory, and policyoriented issues that were outside the 

scope of the proposed rule, like job 

creation requirements for the Immigrant 

Investor Pilot Program. The final rule 

does not address comments seeking 

changes in United States statutes, 

changes in regulations or immigration 

benefits unrelated to, not reasonably 

related to the fee structure or impacting 

the fee structure, and not addressed by 

the proposed rule, changes in 

procedures of other components within 

DHS or other agencies, or the resolution 

of any other issues not within the scope 

of the rulemaking or the authority of 

DHS. 

H. Methods Used To Determine Fee 

Amounts 

A number of comments questioned or 

requested additional information on the 

methodology used to determine USCIS 

costs. Others questioned the costs and 

calculations provided in the proposed 

rule, while some requested an invoice 

that details the costs of services. USCIS 

has made no changes to the final rule as 

a result of these comments. 

Detailed information on the fee 

review methodology and the cost 

components and calculations was 

provided in the proposed rule and 

remains posted in the docket of this rule 

at www.regulations.gov. This 

information will also be provided 

directly by USCIS upon request. The 

underlying supporting elements, such as 

independent legal requirements, the 

General Schedule pay scales, or travel 

reimbursement rates, are all publicly 

available. In the proposed rule, USCIS 

offered an opportunity to review the 

functioning of the computerized cost 

model used by USCIS through onsite 

viewing on its computer system. While 

USCIS cannot provide complete access 

to the computer software purchased 

under license, the USCIS fee 

determination is, within reason, an open 

process. A summary of how calculations 

were made and results achieved was 

available for review upon request. 

USCIS did not receive any requests to 

access the modeling program. We have 

made no changes to the final rule as a 

result of these comments. 

1. Reductions to USCIS Costs 

A number of commenters suggested 

that USCIS reduce its costs before 

implementing a fee increase. USCIS 

agrees that cost savings are an important 

part of its fee evaluation. The FY 2010 

enacted appropriation and the FY 2011 

President’s budget request provided 

significant appropriations ($55 million 

in FY 2010 and $238 million in FY 

2011) to reduce surcharges placed on 

fee-paying applicants and petitioners for 

programs related to refugee and asylum 

benefits. The FY 2011 appropriations 

request also includes the cost of the 

Office of Citizenship and the SAVE 

programs—two programs previously 


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funded by immigration benefit fees. The 

President’s total appropriation request 

for USCIS was more than $385 million. 

In addition to removing almost 10% 

of costs from the fee structure, at the 

beginning of FY 2010, USCIS 

implemented approximately $160 

million in operational budget cuts. 

USCIS has reduced about 170 federal 

positions, executed a number of hiring 

freezes, and significantly reduced 

overtime spending. All USCIS offices 

faced an across-the-board reduction to 

general expenses and certain contracts 

were reduced due to lower workloads. 

DHS believes that these actions to 

reduce costs and fee burdens on feefunded programs have been significant, 

and fully expects USCIS to continue to 

focus on cost reduction and efficiency 

in future fee reviews. No changes have 

been made to the final rule as a result 

of these comments. 

2. Appropriations 

Many commenters commended the 

Administration’s request for 

appropriated funding to eliminate 

surcharges. Some commenters stated 

that USCIS should request even more 

appropriated funding to cover its costs. 

Commenters suggested expanding the 

use of appropriated funds to fraudrelated activities, asylum and refugee 

services, infrastructure improvements, 

overhead, and long-term investments. 

Other commenters opined that 

taxpayers should not bear the burden of 

funding immigration-related activities 

and strongly opposed the use of 

appropriated funding for USCIS 

operational purposes. DHS is committed 

to reducing surcharges through the use 

of appropriations and will continue to 

consider such options that have the 

potential of providing additional cost 

relief without undue burden on 

taxpayers. 

Some commenters questioned the 

reliance by USCIS on appropriations in 

cost estimates determined prior to the 

approval of those appropriations. USCIS 

recognizes a certain level of uncertainty 

that is created by the timing of the 

federal budget process and this fee rule 

(if the congressional budget process for 

the fee rule’s biennial period was 

completed before the fee rule was 

finalized). Nonetheless, USCIS must 

review its fees biennially and cannot 

delay necessary rulemaking for the 

benefit of the appropriations process. 

DHS is well aware of the impact of 

including appropriated funding in 

USCIS cost estimates and USCIS has 

analyzed (included in the proposed 

rule) fee schedules under a number of 

different appropriation scenarios to 

satisfy the requirements of the 

Administrative Procedure Act. The 

various fee schedules provided the 

public with the highest and lowest 

possible fees based on the highest and 

lowest cost base. 

Further, DHS statutory and regulatory 

reviews considered the uncertainty of 

appropriations funding. DHS shares the 

commenters’ concerns and took steps to 

insulate the regulatory flexibility 

analysis from understating impacts to 

small entities. To this end, as stated in 

the proposed rule, DHS utilized fees 

calculated without appropriations in the 

analysis, which illustrated the largest 

potential impact of the fee increase on 

small entities. DHS has determined that 

the fee schedule should continue to be 

based on the President’s requested 

appropriation. USCIS will make 

necessary operational changes to 

accommodate an appropriation that 

does not fulfill the President’s request. 

Accordingly, DHS makes no changes to 

the final rule as a result of these 

comments. 

I. Other Comments 

A number of comments were not 

linked to the substance of the proposed 

rule and criticized the rule for not 

addressing other immigration law 

issues. Some commenters addressed 

issues related to comprehensive 

legislative immigration reform. Others 

suggested changes to the substantive 

regulations implementing the 

immigration laws by USCIS, CBP, U.S. 

Immigration and Customs Enforcement, 

and other agencies that do not have an 

impact on the fee structure or amounts. 

Some commenters expressed 

dissatisfaction with the visa allocation 

process, which is established by the 

Congress, and outside of the scope of 

DHS operations. 

DHS cannot address comments 

seeking changes in United States 

statutes, changes in regulations or 

immigration benefits unrelated to the 

proposed rule, changes in procedures of 

other components within the 

Department of Homeland Security that 

are not linked to the fee schedule or 

processes, or regulations of other 

agencies, or the resolution of any other 

issues not within the authority of DHS. 

Although beyond this scope, three 

comments are discussed below in order 

to clarify certain issues. 

1. Visa Allocation and Unused Visa 

Numbers 

Several commenters expressed 

concern that USCIS would raise fees 

during a time when many employmentbased adjustment of status filers are 

experiencing long waits for their visas. 

Although these long waits are due to 

visa retrogression in oversubscribed 

categories, some attributed it to USCIS 

processing inefficiencies and questioned 

a fee hike in the face of such delays. 

Others attributed the long waits to the 

mismanagement of the visa allocation 

and coordination process between 

USCIS and DOS and noted that many 

numerically-limited visas have gone 

unused. 

The notion that USCIS processing 

inefficiencies contribute to the long wait 

for visas appears unfounded, as there is 

currently an average processing time of 

four months for an Application to 

Register Permanent Residence or Adjust 

Status, Form I–485, for which visas 

remain available. This timeframe meets 

the processing goal set forth in the 2008/ 

2009 fee rule. See 72 FR 4888, 4893. 

Significant improvements have also 

been made in the visa coordination 

process between DOS and USCIS. 

USCIS and DOS confer monthly on 

pending visa demand, workload 

capabilities, and forecasting of 

immigration trends. For example, if 

USCIS analysis finds a period of low 

demand in a particular visa preference 

category, DOS is able to respond by 

advancing the priority dates rapidly to 

ensure that all allotted visas will be 

used in a particular fiscal year. USCIS 

and DOS continue to consider ideas and 

options to further improve the visa 

coordination process between the two 

and reduce the occurrence of visa 

retrogression or future unused numbers. 

Some commenters suggested that 

USCIS recapture unused visa numbers 

from recent years as a way to reduce the 

backlog of pending adjustment of status 

cases. By recapturing these numbers, it 

was suggested that visa priority cut-off 

dates would advance, allowing for many 

new filings and thereby increasing 

USCIS revenue without a need to raise 

fees. However, the authority to 

recapture any unused visa numbers 

from previous years resides with 

Congress and is not available to USCIS 

as an administrative remedy. See INA 

section 201, 8 U.S.C. 1151. Moreover, 

increasing the number of filings 

concurrently increases the amount of 

work to be performed, thus consuming 

the fees generated. Even if legally 

possible, this solution would not be 

practical. 

Due to the long wait for visa numbers 

in particular categories, several 

commenters disagreed with a fee hike as 

they noted costs would rise for 

intending immigrants either seeking to 

maintain their status in the United 

States or receiving ongoing interim 

benefits while awaiting visa numbers. It 

is noted, however, that U.S. employers 

may not recoup the costs required to file 


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for a nonimmigrant employee or his/her 

extension or change of status; thus, the 

costs are borne by the employer and not 

the intending immigrant seeking to 

maintain his/her status. Furthermore, as 

of the fee structure instituted in 2007, 

applicants for adjustment of status who 

request advance parole and employment 

authorization are exempt from payment 

of additional fees while their Forms I– 

485 are pending. Thus, this is not a 

valid concern for these individuals. 

USCIS acknowledges that 

employment-based Form I–485 filers 

who filed under the old fee structure, 

prior to August 18, 2007, must continue 

to pay fees associated with interim 

benefits. While USCIS has no control 

over the Department of State’s allocation 

of visa numbers, nor over the yearly visa 

numerical limits as established by 

Congress, it has nonetheless been 

sympathetic to those who have pending 

adjustment of status applications in 

categories experiencing extreme visa 

retrogression. To alleviate the filing 

burden on these individuals and 

associated costs, USCIS initiated a 

policy in June 2008 whereby an EAD 

would have a two-year validity period 

for these affected individuals, 

effectively reducing ongoing costs for 

the benefit by an estimated 50 percent. 

USCIS is further adopting a policy 

whereby those same affected 

individuals may receive an advance 

parole document with a two-year 

validity period to further alleviate their 

filing burdens. The number of filers 

affected by FY 2007 visa retrogression 

continues to decline as visa numbers are 

allocated. 

One commenter suggested the 

creation of a variable fee structure 

depending on the wait for a visa 

number. As wait times fluctuate due to 

a myriad of factors, including visa 

number restrictions, per-country limits, 

and changes in demand, it would be 

impractical to adopt this suggestion as 

there would be no way to project what 

the future delays and fees would be. 

2. Increased Periods of Validity for 

Travel and Employment Documents 

A number of commenters requested 

that USCIS offer multi-year employment 

authorization documents (Form I–765) 

and travel documents (Form I–131). 

Commenters cited the financial burden 

of submitting multiple applications for 

both services while their adjustment of 

status cases are pending. Some 

commenters also mentioned the 

administrative burden created when 

trying to time the filing of the 

documents so as not to produce 

instances of overlapping validity. 

USCIS has no interest in artificially 

limiting the validity periods of these 

documents. In many instances, these 

validity periods are directly related to 

the length of the underlying status 

which created eligibility for these 

associated benefits. For example, a 

permanent resident who remains 

outside the United States for more than 

one year may be questioned on his or 

her return based on the validity of his 

or her Permanent Resident Card, Form 

I–551. 8 CFR 211.3. If that individual 

applied for a reentry permit before 

departure from the foreign country, and 

the application is granted, then the one 

year validity of the Form I–551 is 

extended to two years. 8 CFR 223.3(a), 

(d). The current two-year validity of the 

reentry permit matches this period. 

Issuing it for a longer validity period 

could create confusion and result in 

some permanent residents remaining 

abroad for too long and potentially 

jeopardizing their status. The validity 

period of a travel document or EAD is 

generally linked to the validity period of 

the relating immigration status. 

The issuance of interim benefits based 

on an application for an adjustment of 

status was in some respects an 

exception to this rule. However, in the 

2008/2009 final fee rule, USCIS 

eliminated extension application fees 

for both advance paroles and EADs— 

issuing them without charge since they 

were paid as part of the Form I–485 fee. 

See 72 FR 29851, 29873. Subsequently, 

USCIS extended the validity period to 

two years for new EADs issued to 

applicants for adjustment of status for 

whom a visa number was not available. 

See 8 CFR 274a.12(a) (authorizing 

USCIS to determine the validity period 

for EADs). This change was done in part 

to eliminate any perception that 

different renewal cycles were simply a 

means of generating revenue from 

applicants and petitioners who had 

applied under the prior fee structure. 

The two-year renewal is based on the 

need to periodically evaluate continuing 

eligibility for these associated benefits, 

whether provided without additional 

charge or through a fee. 

3. Suggested I–94 Fee 

One commenter suggested that USCIS 

charge a fee for the cost of 

recordkeeping and filing of an ArrivalDeparture Record, Form I–94, issued at 

the POE for non-immigrant visa and visa 

waiver admissions. The commenter 

believed that this is a much larger 

population and a more tedious task than 

collection of the new immigrant visa 

domestic processing fee. DHS has not 

adopted the commenter’s suggestion. 

Form I–94 and any fees associated with 

the form are handled by CBP, another 

DHS component, and are beyond the 

scope of this rulemaking. 

J. Discussion of Comments Received in 

Response to the June 1, 2001, Interim 

Rule 

On June 1, 2001, the Immigration and 

Naturalization Service, as predecessor to 

USCIS, published an interim rule with 

request for comments in the Federal 

Register which: 

• Added a new paragraph to 8 CFR 

103.2(f) to set the procedural 

requirements to request premium 

processing, designate applications and 

petitions as eligible, clarify the fees, and 

provide for the announcement of the 

temporary termination of the service; 

• Amended 103.7(b) and (c) to 

establish a premium processing fee; 

• Amended 103.7(c) to provide that 

the premium processing fee cannot be 

waived; and 

• Amended 299.1 to provide that 

Form I–907 should be used to request 

premium processing service. 

Establishing Premium Processing for 

Employment-Based Petitions and 

Applications, 66 FR 29682 (June 1, 

2001). The interim rule implemented 

the District of Columbia Appropriations 

Act, 2001, Public Law 106–553, 114 

Stat. 2762 (2000). The legislation added 

a new INA section 286(u) that 

authorized the collection of a $1,000 

‘‘premium processing’’ fee in addition to 

the regular filing fee for certain petitions 

and applications. The legislation limited 

the authority to collect the premium 

processing fee to employment-based 

petitions and applications. INA section 

286(u), 8 U.S.C. 1356(u). 

INS provided a 60 day comment 

period and received 78 public 

comments relating to the interim rule 

from performing arts organizations; 

attorneys, management companies, and 

representatives of performing arts 

organizations; and associations of 

attorney and business personnel. Many 

of the issues raised were addressed 

above in response to comments received 

on the proposed fee rule and that 

discussion will not be repeated. 

Virtually all commenters repeated the 

following points: 

• Although INS allows non-profit 

organizations to request expedited 

processing without charge, some do not 

qualify and the process is unreliable; 

• Expedited processing should be 

completed in less than 15 days; 

• INS did not provide enough 

advance notice of this immediately 

effective change or how it would affect 

cases already filed; and 

• O–2 and P visa support petitions 

and petition amendments should be 


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included within the premium 

processing fee for the principal. 

Each of these comments will be 

discussed below. 

The commenters suggested that 

USCIS complete its processing in a 

shorter timeframe than 15 days. 

Although we understand this request, 

DHS has determined that 15 days is 

reasonable and it is unable to guarantee 

processing in any time shorter than the 

15 day period provided in the rule. 

The commenters complained that the 

interim rule was immediately effective 

on publication and did not address its 

applicability to cases already filed. As 

explained in the interim rule, INS 

determined that it found good cause to 

adopt the rule without prior notice and 

comment and that any delayed 

implementation would be contrary to 

the public interest. 66 FR 29682, 29684. 

Since the interim rule has now been in 

effect for over nine years and any thenpending cases have been decided, DHS 

will not make any changes to the rule 

in response to these comments. 

The commenters also suggested that 

there be no additional charge for 

petitions filed on behalf of O–2 nonimmigrant visa dependents, P visa 

essential support personnel, and 

petition amendments. As discussed 

above, USCIS fee methodology is 

premised on the relative cost to 

adjudicate each petition and therefore, it 

must charge a fee for each petition and 

each request for premium processing. 

As such, DHS cannot adopt the 

commenters’ suggestion that one 

premium processing fee cover several 

petitions or petition amendments. 

In addition, two commenters 

mentioned the impact of the rule on 

Canadian performers who depend on 

income received from short notice, short 

term engagements in the United States. 

USCIS has decreased its processing 

times for O and P petitions; therefore, 

no special accommodation is needed for 

Canadian performers. USCIS has made 

no change to the interim rule as a result 

of them. 

One commenter praised the premium 

processing service but complained that 

it would exacerbate H–1B processing for 

teachers and school administrators. The 

commenter also noted the adverse 

impact of the timing of H–1B filing 

season on educational institutions. 

USCIS has decreased its processing 

times for H–1B petitions and seeks to 

further improve that process. However, 

the number of H–1B visas available each 

year is fixed by statute and beyond the 

control of USCIS. INA section 214(g), 8 

U.S.C. 1184(g). 

Two commenters sought assurances 

that USCIS would promptly respond to 

submissions made in response to 

Requests for Evidence and Notices of 

Intent to Deny to avoid further 

processing delays and suggested 

amending the regulation to require it. As 

mentioned, USCIS has decreased its 

processing times for O and P petitions 

and has improved its processing and 

efficiency overall and strives to decide 

all cases promptly. USCIS has made no 

change to the interim rule as a result of 

these comments. 

Another commenter reminded that 

the use of premium processing fees is 

limited by statute and suggested that a 

fee waiver be permitted. INA section 

286(u), 8 U.S.C. 1356(u). USCIS is 

certainly aware of the statutory 

limitation of such fees to ‘‘premiumprocessing services to business 

customers, and to make infrastructure 

improvements in the adjudications and 

customer-service processes’’ and limits 

its use of such fees to the authorized 

purposes. Id. Given the significant 

improvement in processing times, DHS 

has decided not to permit a fee waiver 

of the premium processing fee. DHS has 

made no change to the interim rule as 

a result of the comment. 

One commenter requested that the 

Application to Register Permanent 

Residence or Adjust Status, Form I–485, 

be added to the list of forms eligible for 

premium processing service. Given the 

complexity and significance of the 

adjudication of an application for lawful 

permanent residence, USCIS is unable 

to commit to such a timeframe. 

Although USCIS has decreased its 

processing time for Forms I–485, at this 

time it is unable to extend premium 

processing service to employment-based 

Forms I–485. 

For these reasons, no changes are 

made to the interim rule as a result of 

the comments received and the interim 

rule is adopted as final and changed as 

described in this rule. 

IV. Statutory and Regulatory Reviews 

A. Regulatory Flexibility Act—Final 

Regulatory Flexibility Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA), 5 U.S.C. 601(6), 

USCIS examined the impact of this 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 fifty thousand 

people). Below is a summary of the 

small entity analysis. A more detailed 

analysis titled ‘‘Small Entity Analysis for 

Adjustment of the U.S. Citizenship and 

Immigration Services Fee Schedule’’ is 

available in the rulemaking docket at 

http://www.regulations.gov. 

Individuals rather than small entities 

submit the majority of immigration and 

naturalization benefit applications and 

petitions. Entities that would be affected 

by this rule are those that file and pay 

the alien’s fees for certain immigration 

benefit applications. Consequently, 

there are four categories of USCIS 

benefits that are subject to a RFA 

analysis for this rule: Petition for a 

Nonimmigrant Worker (Form I–129); 

Immigrant Petition for an Alien Worker 

(Form I–140); Civil Surgeon 

Designation; and the new Application 

for Regional Center under the Immigrant 

Investor Pilot Program (Form I–924). 

DHS does not believe that the increase 

in fees proposed in this rule will have 

a significant economic impact on a 

substantial number of small entities; 

nevertheless, DHS is publishing a final 

regulatory flexibility analysis. 

1. Objectives of, and Legal Basis for, the 

Final Rule 

DHS’s objectives and legal authority 

for this final rule are discussed in 

section III.A of this preamble. 

2. Significant Issues Raised by Public 

Comments in Response to the Initial 

Regulatory Flexibility Analysis 

Only one commenter specifically 

mentioned the IRFA. The commenter 

was concerned that uncertainty of 

appropriations funding from Congress 

would impact the results of the IRFA. 

DHS shared this concern and took steps 

to insulate the analysis from 

understating impacts to small entities. 

As stated in the proposed rule, DHS 

utilized fees calculated without 

appropriations when preparing the 

IRFA, which illustrated the largest 

impact of this fee increase on small 

entities. 

A number of general comments on the 

rule raised concerns about the increase 

in Form I–129 fees, particularly with 

respect to non-profit agencies 

sponsoring musicians to perform in the 

U.S. These comments were directed at 

operational and efficiency issues rather 

than the initial regulatory flexibility 

analysis. The operational and efficiency 

comments have been addressed above in 

section III(B)(2)(d) of this final rule. One 

of those commenters suggested a 

separate fee structure for non-profit 

organizations, but did not provide any 

further information. As described in the 

IRFA, this type of fee structure would 

ultimately lead to increased costs for 

non-profit organizations in the form of 


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longer wait times and reduced customer 

service. 

Most comments concerning EB–5 

Regional Center Designation centered on 

operational and form-related issues, 

which are discussed in section III(E)(3) 

of this final rule. Some commenters 

recommended a fee-exemption for nonprofit Regional Centers. The comments 

did not provide any analysis to support 

the need for a fee-exemption for nonprofit Regional Centers, such as data 

indicating that the DHS analysis was 

lacking and have not been adopted. 

Many commenters asserted that fees 

were too high. These comments are 

addressed in the response to public 

comments in section III(B)(2) of this 

final rule. 

3. Description and Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply 

Entities affected by this final rule are 

those that file and pay fees for certain 

immigration benefit applications on 

behalf of an alien. These petitions and 

applications include Form I–129, 

Petition for Nonimmigrant Worker; 

Form I–140, Immigrant Petition for 

Alien Worker; Request for Civil Surgeon 

Designation; and Form I–924, 

Application for Regional Center. Annual 

numeric estimates of the small entities 

impacted by this fee increase total: Form 

I–129 (87,220 entities), Form I–140 

(44,500 entities), Civil Surgeon 

Designation (1,200 entities), and Form 

I–924 (132 entities). 

This rule applies to small entities, 

including businesses, non–profit 

organizations, and governmental 

jurisdictions filing for the above 

benefits. Forms I–129 and I–140 will see 

a number of industry clusters impacted 

by this rule (see Appendix A of the 

Small Entity Analysis for a list of the 

impacted industry codes). The fee for 

Civil Surgeon designation will impact 

physicians seeking to be designated as 

Civil Surgeons. Finally, Form I–924 will 

impact any entity requesting approval 

and designation to be a Regional Center 

under the Immigrant Investor Pilot 

Program. 

4. Reporting, Recordkeeping and Other 

Compliance Requirements 

This final rule imposes higher fees for 

filers of Forms I–129 and I–140, and 

new fees for filers of Civil Surgeon 

Designation requests and Form I–924, 

EB–5 Regional Center applications. The 

new fee structure, as it applies to the 

small entities outlined above, results in 

the following fees: Form I–129 ($355), 

Form I–140 ($630), Civil Surgeon 

Designation ($615), and Form I–924 

($6,820). As discussed in the IRFA, in 

order not to underestimate the impact of 

this rule, DHS analyzed fees based on 

non-appropriated funding. DHS has 

applied these same assumptions to the 

FRFA. The final rule does not require 

any new professional skills for 

reporting. 

5. Steps Taken To Minimize Significant 

Adverse Economic Impacts on Small 

Entities 

Section 286(m) of the INA provides 

for the collection of fees at a level that 

will ensure recovery of the full costs of 

providing adjudication and 

naturalization services, including 

services provided without charge to 

asylum applicants and certain other 

immigrant applicants. In addition, DHS 

must fund the costs of providing 

services without charge by using a 

portion of the filing fees collected for 

other immigration benefits. Without an 

increase in fees, USCIS will not be able 

to provide applicants and petitioners 

with the same levels of service for 

immigration and naturalization benefits. 

DHS has considered and rejected the 

alternative of maintaining fees at the 

current level with reduced services and 

increased wait times. 

While most immigration benefit fees 

apply to individuals, as described 

above, some also apply to small entities. 

USCIS seeks to minimize the impact on 

all parties, but in particular on small 

entities. An alternative to the increased 

economic burden of the fee adjustment 

is to maintain fees at their current level 

for small entities. The strength of this 

alternative is that it assures that no 

additional fee-burden is placed on small 

entities; however, this alternative also 

would cause negative impacts to small 

entities. 

Without the fee adjustments provided 

in this final rule, significant operational 

changes to USCIS would be necessary. 

Given current filing volume and other 

economic considerations, additional 

revenue is necessary to prevent 

immediate and significant cuts in 

planned spending. These spending cuts 

would include reductions in areas such 

as federal and contract staff, 

infrastructure spending on information 

technology and facilities, travel, and 

training. Depending on the actual level 

of workload received, these operational 

changes would result in longer 

application processing times, a 

degradation in customer service, and 

reduced efficiency over time. These cuts 

would ultimately represent an increased 

cost to small entities by causing delays 

in benefit processing and less customer 

service. 

B. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) requires certain actions 

to be taken before an agency 

promulgates any notice of 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 million or more 

(adjusted annually for inflation) in any 

one year.’’ 2 U.S.C. 1532(a). While this 

rule may result in the expenditure of 

more than $100 million by the private 

sector annually, the rulemaking is not a 

‘‘Federal mandate’’ as defined for UMRA 

purposes, 2 U.S.C. 658(6), as the 

payment of immigration benefit fees by 

individuals or other private sector 

entities is, to the extent it could be 

termed an enforceable duty, one that 

arises from participation in a voluntary 

Federal program, applying for 

immigration status in the United States. 

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 

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 

requests 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 proposed regulation, 

at no charge. The increased costs will be 

recovered through the fees charged for 

various immigration benefit 

applications. 

D. Executive Order 12866 

This rule is considered by the 

Department of Homeland Security to be 

an economically significant regulatory 

action under Executive Order 12866, 

section 3(f)(1), Regulatory Planning and 

Review. Accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. 

The implementation of this rule 

would provide USCIS with an average 

of $209 million in FY 2010 and FY 2011 

annual fee revenue, based on a projected 

annual fee-paying volume of 4.4 million 

immigration benefit requests and 1.9 

million requests for biometric services, 

over the fee revenue that would be 


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collected under the current fee 

structure. This increase in revenue will 

be used pursuant to sections 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 others at 

no charge. 

If USCIS does not adjust current fees 

to recover the full costs of processing 

immigration benefit requests, USCIS 

would be forced to implement 

additional significant spending 

reductions resulting in a reversal of the 

considerable progress it has made over 

the last several years to reduce the 

backlogs of immigration benefit filings, 

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 final rule 

was drafted. USCIS has placed a 

detailed analysis in the rulemaking 

docket that explains the basis for the 

annual fee increase and has included 

the required OMB Circular A–4 

detailing the annualized impacts of the 

rule in table 2. 

TABLE 2—OMB CIRCULAR A–4 ACCOUNTING STATEMENT

[FY 2010 through FY 2011 (2009 Dollars)] 

Category Primary estimate 

Transfers 

Annualized Monetized Transfers at 3% ............................................................................................................................... $209,264,850 

Annualized Monetized Transfers at 7% ............................................................................................................................... $209,264,850 

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 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 

(PRA) of 1995, Public Law 104–13, 109 

Stat. 163 (1995) (PRA), all Departments 

are required to submit to OMB, for 

review and approval, any reporting or 

recordkeeping requirements inherent in 

a rule. This rule creates two new 

information collections. 

• Application for Civil Surgeon 

Designation, and 

• Form I–924 and Form I–924A, 

Application for Regional Center under 

the Immigrant Investor Pilot Program. 

In accordance with the PRA, DHS 

published a 60-day notice in the Federal 

Register on June 11, 2010, at 75 FR 

33446, requesting comments on the two 

new information collections. The 

comments on the Application for Civil 

Surgeon Designation and DHS’s 

response can be found in section 

IV(G)(2) of this final rule. The comments 

on the Forms I–924 and I–924A, 

Application for Regional Center under 

the Immigrant Investor Pilot Program, 

and DHS’s response can be found in 

section IV(G)(3) of this final rule, and in 

an attachment to the supporting 

statement that will be posted to 

www.regulations.gov. 

As required by the PRA, the two new 

information collections were submitted 

to the Office of Management and Budget 

(OMB) for review and approval. OMB 

has approved the Application for Civil 

Surgeon Designation. The approved 

OMB Control No. is 1615–0114. 

DHS made some edits to the Forms I– 

924, and I–924A, based on the public 

comments and resubmitted these 

amended forms to OMB for review and 

approval. 

DHS is requesting comments on the 

Forms I–924 and I–924A for 30 days 

until October 25, 2010. Comments on 

this information collection should 

address one or more of the following 

four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Overview of Information Collection: 

Immigration Investor Pilot Program. 

a. Type of information collection: 

Revised information collection. 

b. Abstract: This collection will be 

used by individuals and businesses to 

file a request for USCIS approval and 

designation as a Regional Center on 

behalf of an entity under the Immigrant 

Investor Pilot Program. 

c. Title of Form/Collection: 

Application for Regional Center under 

the Immigrant Investor Pilot Program. 

d. Agency form number, if any, and 

the applicable component of the 

Department of Homeland Security 

sponsoring the collection: Form I–924 

and Form I–924A; U.S. Citizenship and 

Immigration Services. 

e. Affected public who will be asked 

or required to respond: Individuals and 

businesses. 

f. An estimate of the total number of 

respondents: 132 respondents filing 

Form I–924, and 116 respondents filing 

Form I–924A. 

g. Hours per response: Form I–924 at 

40 hours per response, and Form I– 

924A at 3 hours per response. 

h. Total Annual Reporting Burden: 

4,428 hours. 

Comments concerning Form I–924 

and I–924A can be submitted to the 

Department of Homeland Security, 

USCIS, Chief, Regulatory Products 

Division, Clearance Office, 111 

Massachusetts Avenue, Suite 3008, 

NW., Washington, DC 20529–2210. 

The changes to the fees will require 

minor amendments to immigration 

benefit and petition forms to reflect the 

new fees. The necessary changes to the 

annual cost burden and to the forms 

have been submitted to OMB using 

OMB Form 83–C, Correction Worksheet, 

and OMB has approved these changes. 


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List of Subjects 

8 CFR Part 103 

Administrative practice and 

procedures, Authority delegations 

(government agencies), Freedom of 

Information; Privacy, Reporting and 

recordkeeping requirements, Surety 

bonds. 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 244 

Aliens, Reporting and recordkeeping 

requirements. 

8 CFR Part 274A 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim rule 

‘‘Establishing Premium Processing for 

Employment-Based Petitions and 

Applications,’’ published at 66 FR 29682 

on June 1, 2001, is adopted as a final 

rule with the following changes: 

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, 552a; 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. 

§ 103.2 [Amended] 

■ 2. Section 103.2 is amended by: 

■ a. Removing paragraph (e)(4)(ii); 

■ b. Redesignating paragraphs (e)(4)(iii), 

and (e)(4)(iv), as paragraphs (e)(4)(ii), 

and (e)(4)(iii), respectively; and by 

■ c. Removing paragraph (f). 

■ 3. Section 103.7 is amended by: 

■ a. Revising paragraphs (b) and (c); 

■ b. Redesignating paragraph (d) as 

paragraph (f); 

■ c. Adding new paragraphs (d) and (e); 

and by 

■ d. Revising newly redesignated 

paragraph (f). 

The revisions and additions read as 

follows: 

§ 103.7 Fees. 

* * * * * 

(b) Amounts of fees. (1) Prescribed 

fees and charges. (i) USCIS fees. A 

request for immigration benefits 

submitted to USCIS must include the 

required fee as prescribed under this 

section. The fees prescribed in this 

section are associated with the benefit, 

the adjudication, and the type of request 

and not solely determined by the form 

number listed below. The term ‘‘form’’ as 

defined in 8 CFR part 1, may include a 

USCIS-approved electronic equivalent 

of such form as USCIS may prescribe on 

its official Web site at http// 

www.uscis.gov. 

(A) Certification of true copies: $2.00 

per copy. 

(B) Attestation under seal: $2.00 each. 

(C) Biometric services (Biometric Fee). 

For capturing, storing, or using 

biometrics (Biometric Fee). A service fee 

of $85 will be charged of any individual 

who is required to have biometrics 

captured, stored, or used in connection 

with an application or petition for 

certain immigration and naturalization 

benefits (other than asylum), whose 

application fee does not already include 

the charge for biometric services. No 

biometric services fee is charged when: 

(1) A written request for an extension 

of the approval period is received by 

USCIS prior to the expiration date of 

approval of an Application for Advance 

Processing of Orphan Petition, if a 

Petition to Classify Orphan as an 

Immediate Relative has not yet been 

submitted in connection with an 

approved Application for Advance 

Processing of Orphan Petition. This 

extension without fee is limited to one 

occasion. If the approval extension 

expires prior to submission of an 

associated Petition to Classify Orphan as 

an Immediate Relative, then a complete 

application and fee must be submitted 

for a subsequent application. 

(2) The application or petition fee for 

the associated benefit request has been 

waived under paragraph (c) of this 

section; or 

(3) The associated benefit request is 

an Application for Posthumous 

Citizenship (Form N–644); Refugee/ 

Asylee Relative Petition (Form I–730); 

Application for T Nonimmigrant Status 

(Form I–914); Petition for U 

Nonimmigrant Status (Form I–918); 

Application for Naturalization (Form N– 

400) by an applicant who meets the 

requirements of sections 328 or 329 of 

the Act with respect to military service 

under paragraph (b)(1)(i)(WW) of this 

section; Application to Register 

Permanent Residence or Adjust Status 

(Form I–485) from an asylee under 

paragraph (b)(1)(i)(U) of this section; 

Application To Adjust Status under 

Section 245(i) of the Act (Supplement A 

to Form I–485) from an unmarried child 

less than 17 years of age, or when the 

applicant is the spouse, or the 

unmarried child less than 21 years of 

age of a legalized alien and who is 

qualified for and has applied for 

voluntary departure under the family 

unity program from an asylee under 

paragraph (b)(1)(i)(V) of this section; or 

a Petition for Amerasian, Widow(er), or 

Special Immigrant (Form I–360) meeting 

the requirements of paragraphs 

(b)(1)(i)(T)(1), (2), (3) or (4) of this 

section. 

(D) Immigrant visa DHS domestic 

processing fees. For DHS domestic 

processing and issuance of required 

documents after an immigrant visa is 

issued by the Department of State: $165. 

(E) Request for a search of indices to 

historical records to be used in 

genealogical research (Form G–1041): 

$20. The search fee is not refundable. 

(F) Request for a copy of historical 

records to be used in genealogical 

research (Form G–1041A): $20 for each 

file copy from microfilm, or $35 for each 

file copy from a textual record. In some 

cases, the researcher may be unable to 

determine the fee, because the 

researcher will have a file number 

obtained from a source other than 

USCIS and therefore not know the 

format of the file (microfilm or hard 

copy). In this case, if USCIS locates the 

file and it is a textual file, USCIS will 

notify the researcher to remit the 

additional $15. USCIS will refund the 

records request fee only when it is 

unable to locate the file previously 

identified in response to the index 

search request. 

(G) Application to Replace Permanent 

Resident Card (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: 

$365. 

(H) Application for Replacement/ 

Initial Nonimmigrant Arrival–Departure 

Document (Form I–102). For filing a 

petition for an application for Arrival/ 

Departure Record (Form I–94) or 

Crewman’s Landing Permit (Form I–95), 

in lieu of one lost, mutilated, or 

destroyed: $330. 

(I) Petition for a Nonimmigrant 

Worker (Form I–129). For filing a 

petition for a nonimmigrant worker: 

$325. 

(J) Petition for Nonimmigrant Worker 

in CNMI (Form I–129CW). For an 

employer to petition on behalf of one or 

more beneficiaries: $325 plus a 

supplemental CNMI education funding 

fee of $150 per beneficiary per year. The 

CNMI education funding fee cannot be 

waived. 

(K) Petition for Alien Fiance ́(e) (Form 

I–129F). For filing a petition to classify 

a nonimmigrant as a fiance ́e or fiance ́

under section 214(d) of the Act: $340; 

there is no fee for a K–3 spouse as 

designated in 8 CFR 214.1(a)(2) who is 


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the beneficiary of an immigrant petition 

filed by a United States citizen on a 

Petition for Alien Relative (Form I–130). 

(L) Petition for Alien Relative (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: $420. 

(M) Application for Travel Document 

(Form I–131). For filing an application 

for travel document: 

(1) $165 for a Refugee Travel 

Document for an adult age 16 or older. 

(2) $105 for a Refugee Travel 

Document for a child under the age of 

16. 

(3) $360 for advance parole and any 

other travel document. 

(4) No fee if filed in conjunction with 

a pending or concurrently filed 

Application to Register Permanent 

Residence or Adjust Status (Form I–485) 

when that application was filed with a 

fee on or after July 30, 2007. 

(N) Immigrant Petition for Alien 

Worker (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: $580. 

(O) Application for Advance 

Permission to Return to Unrelinquished 

Domicile (Form I–191). For filing an 

application for discretionary relief 

under section 212(c) of the Act: $585. 

(P) Application for Advance 

Permission to Enter as a Nonimmigrant 

(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: $585. 

(Q) Application for Waiver for 

Passport and/or Visa (Form I–193). For 

filing an application for waiver of 

passport and/or visa: $585. 

(R) Application for Permission to 

Reapply for Admission into the United 

States After Deportation or Removal 

(Form I–212). For filing an application 

for permission to reapply for 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: $585. 

(S) Notice of Appeal or Motion (Form 

I–290B). For appealing a decision under 

the immigration laws in any type of 

proceeding over which the Board of 

Immigration Appeals does not have 

appellate jurisdiction: $630. The fee will 

be the same for appeal of a denial of a 

benefit request with one or multiple 

beneficiaries. There is no fee for an 

appeal or motion associated with a 

denial of a petition for a special 

immigrant visa from an Iraqi or Afghan 

national who worked for or on behalf of 

the U.S. Government in Iraq or 

Afghanistan. 

(T) Petition for Amerasian, Widow(er), 

or Special Immigrant (Form I–360). For 

filing a petition for an Amerasian, 

Widow(er), or Special Immigrant: $405. 

The following requests are exempt from 

this fee: 

(1) A petition seeking classification as 

an Amerasian; 

(2) A self–petitioning battered or 

abused spouse, parent, or child of a 

United States citizen or lawful 

permanent resident; 

(3) A Special Immigrant Juvenile; or 

(4) An Iraqi or Afghan national who 

worked for, or on behalf of the U.S. 

Government in Iraq or Afghanistan. 

(U) Application to Register Permanent 

Residence or Adjust Status (Form I– 

485). For filing an application for 

permanent resident status or creation of 

a record of lawful permanent residence: 

(1) $985 for an applicant 14 years of 

age or older; or 

(2) $635 for an applicant under the 

age of 14 years when it is: 

(i) Submitted concurrently for 

adjudication with the Form I–485 of a 

parent; 

(ii) The applicant is seeking to adjust 

status as a derivative of his or her 

parent; and 

(iii) The child’s application is based 

on a relationship to the same individual 

who is the basis for the child’s parent’s 

adjustment of status, or under the same 

legal authority as the parent. 

(3) There is no fee if an applicant is 

filing as a refugee under section 209(a) 

of the Act. 

(V) Application to Adjust Status 

under section 245(i) of the Act 

(Supplement A to Form I–485). 

Supplement A to Form I–485 for 

persons seeking to adjust status under 

the provisions of section 245(i) of the 

Act: $1,000. There is no fee when the 

applicant is an unmarried child less 

than 17 years of age, or when the 

applicant is the spouse, or the 

unmarried child less than 21 years of 

age of a legalized alien and who is 

qualified for and has applied for 

voluntary departure under the family 

unity program. 

(W) Immigrant Petition by Alien 

Entrepreneur (Form I–526). For filing a 

petition for an alien entrepreneur: 

$1,500. 

(X) Application To Extend/Change 

Nonimmigrant Status (Form I–539). For 

filing an application to extend or change 

nonimmigrant status: $290. 

(Y) Petition to Classify Orphan as an 

Immediate Relative (Form I–600). For 

filing a petition to classify an orphan as 

an immediate relative for issuance of an 

immigrant visa under section 204(a) of 

the Act. Only one fee is required when 

more than one petition is submitted by 

the same petitioner on behalf of orphans 

who are brothers or sisters: $720. 

(Z) Application for Advance 

Processing of Orphan Petition (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.): 

$720. No fee is charged if Form I–600 

has not yet been submitted in 

connection with an approved Form I– 

600A subject to the following 

conditions: 

(1) The applicant requests an 

extension of the approval in writing and 

the request is received by USCIS prior 

to the expiration date of approval. 

(2) The applicant’s home study is 

updated and USCIS determines that 

proper care will be provided to an 

adopted orphan. 

(3) A no fee extension is limited to 

one occasion. If the Form I–600A 

approval extension expires prior to 

submission of an associated Form I–600, 

then a complete application and fee 

must be submitted for any subsequent 

application. 

(AA) Application for Waiver of 

Ground of Inadmissibility (Form I–601). 

For filing an application for waiver of 

grounds of inadmissibility: $585. 

(BB) Application for Waiver of the 

Foreign Residence Requirement (under 

Section 212(e) of the Act) (Form I–612). 

For filing an application for waiver of 

the foreign residence requirement under 

section 212(e) of the Act: $585. 

(CC) Application for Status as a 

Temporary Resident under Section 

245A of the Act (Form I–687). For filing 

an application for status as a temporary 

resident under section 245A(a) of the 

Act: $1,130. 

(DD) Application for Waiver of 

Grounds of Inadmissibility under 

Sections 245A or 210 of the Act (Form 

I–690). For filing an application for 

waiver of a ground of inadmissibility 

under section 212(a) of the Act in 

conjunction with the application under 

sections 210 or 245A of the Act, or a 

petition under section 210A of the Act: 

$200. 

(EE) Notice of Appeal of Decision 

under Sections 245A or 210 of the Act 

(or a petition under section 210A of the 

Act) (Form I–694). For appealing the 

denial of an application under sections 

210 or 245A of the Act, or a petition 

under section 210A of the Act: $755. 

(FF) Application to Adjust Status 

from Temporary to Permanent Resident 


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(Under Section 245A of Public Law 99– 

603) (Form I–698). For filing an 

application to adjust status from 

temporary to permanent resident (under 

section 245A of Public Law 99–603): 

$1020. The adjustment date is the date 

of filing of the application for 

permanent residence or the applicant’s 

eligibility date, whichever is later. 

(GG) Petition to Remove the 

Conditions of Residence based on 

marriage (Form I–751). For filing a 

petition to remove the conditions on 

residence based on marriage: $505. 

(HH) Application for Employment 

Authorization (Form I–765): $380; no 

fee if filed in conjunction with a 

pending or concurrently filed 

Application to Register Permanent 

Residence or Adjust Status (Form I–485) 

when that request was filed with a fee 

on or after July 30, 2007. 

(II) Petition to Classify Convention 

Adoptee as an Immediate Relative 

(Form I–800). 

(1) There is no fee for the first Form 

I–800 filed for a child on the basis of an 

approved Application for Determination 

of Suitability to Adopt a Child from a 

Convention Country (Form I–800A) 

during the approval period. 

(2) If more than one Form I–800 is 

filed during the approval period for 

different children, the fee is $720 for the 

second and each subsequent petition 

submitted. 

(3) If the children are already siblings 

before the proposed adoption, however, 

only one filing fee of $720 is required, 

regardless of the sequence of submission 

of the immigration benefit. 

(JJ) Application for Determination of 

Suitability to Adopt a Child from a 

Convention Country (Form I–800A). For 

filing an application for determination 

of suitability to adopt a child from a 

Convention country: $720. 

(KK) Request for Action on Approved 

Application for Determination of 

Suitability to Adopt a Child from a 

Convention Country (Form I–800A, 

Supplement 3). This filing fee is not 

charged if Form I–800 has not been filed 

based on the approval of the Form I– 

800A, and Form I–800A Supplement 3 

is filed in order to obtain a first 

extension of the approval of the Form I– 

800A: $360. 

(LL) Application for Family Unity 

Benefits (Form I–817). For filing an 

application for voluntary departure 

under the Family Unity Program: $435. 

(MM) Application for Temporary 

Protected Status (Form I–821). For first 

time applicants: $50. This $50 

application fee does not apply to reregistration. 

(NN) Application for Action on an 

Approved Application or Petition (Form 

I–824). For filing for action on an 

approved application or petition: $405. 

(OO) Petition by Entrepreneur to 

Remove Conditions (Form I–829). For 

filing a petition by entrepreneur to 

remove conditions: $3,750. 

(PP) Application for Suspension of 

Deportation or Special Rule 

Cancellation of Removal (Pursuant to 

Section 203 of Pub. L. 105–100) (Form 

I–881): 

(1) $285 for adjudication by the 

Department of Homeland Security, 

except that the maximum amount 

payable by family members (related as 

husband, wife, unmarried child under 

21, unmarried son, or unmarried 

daughter) who submit applications at 

the same time shall be $570. 

(2) $165 for adjudication by the 

Immigration Court (a single fee of $165 

will be charged whenever applications 

are filed by two or more aliens in the 

same proceedings). 

(3) The $165 fee is not required if the 

Form I–881 is referred to the 

Immigration Court by the Department of 

Homeland Security. 

(QQ) Application for Authorization to 

Issue Certification for Health Care 

Workers (Form I–905): $230. 

(RR) Request for Premium Processing 

Service (Form I–907). The fee must be 

paid in addition to, and in a separate 

remittance from, other filing fees. The 

request for premium processing fee will 

be adjusted annually by notice in the 

Federal Register based on inflation 

according to the Consumer Price Index 

(CPI). The fee to request premium 

processing: $1,225. The fee for Premium 

Processing Service may not be waived. 

(SS) Civil Surgeon Designation. For 

filing an application for civil surgeon 

designation: $615. There is no fee for an 

application from a medical officer in the 

U.S. Armed Forces or civilian physician 

employed by the U.S. government who 

examines members and veterans of the 

armed forces and their dependents at a 

military, Department of Veterans 

Affairs, or U.S. Government facility in 

the United States. 

(TT) Application for Regional Center 

under the Immigrant Investor Pilot 

Program (Form I–924). For filing an 

application for regional center under the 

Immigrant Investor Pilot Program: 

$6,230. 

(UU) Petition for Qualifying Family 

Member of a U–1 Nonimmigrant (Form 

I–929). For U–1 principal applicant to 

submit for each qualifying family 

member who plans to seek an immigrant 

visa or adjustment of U status: $215. 

(VV) Application to File Declaration 

of Intention (Form N–300). For filing an 

application for declaration of intention 

to become a U.S. citizen: $250. 

(WW) Request for a Hearing on a 

Decision in Naturalization Proceedings 

(under section 336 of the Act) (Form N– 

336). For filing a request for hearing on 

a decision in naturalization proceedings 

under section 336 of the Act: $650. 

There is no fee if filed on or after 

October 1, 2004, by an applicant who 

has filed an Application for 

Naturalization under sections 328 or 

329 of the Act with respect to military 

service and whose application has been 

denied. 

(XX) Application for Naturalization 

(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. 

(YY) Application to Preserve 

Residence for Naturalization Purposes 

(Form N–470). For filing an application 

for benefits under section 316(b) or 317 

of the Act: $330. 

(ZZ) Application for Replacement 

Naturalization/Citizenship Document 

(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: $345. There is 

no fee when this application is 

submitted under 8 CFR 338.5(a) or 

343a.1 to request correction of a 

certificate that contains an error. 

(AAA) Application for Certificate of 

Citizenship (Form N–600). For filing an 

application for a certificate of 

citizenship under section 309(c) or 

section 341 of the Act for applications 

filed on behalf of a biological child: 

$600. For applications filed on behalf of 

an adopted child: $550. There is no fee 

for any application filed by a member or 

veteran of any branch of the United 

States Armed Forces. 

(BBB) Application for Citizenship and 

Issuance of Certificate under section 322 

of the Act (Form N–600K). For filing an 

application for citizenship and issuance 

of certificate under section 322 of the 

Act: $600, for an application filed on 

behalf of a biological child, and $550 for 

an application filed on behalf of an 

adopted child. 

(ii) Other DHS immigration fees. The 

following fees are applicable to one or 

more of the immigration components of 

DHS: 

(A) DCL System Costs Fee. For use of 

a Dedicated Commuter Lane (DCL) 


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located at specific ports-of-entry of the 

United States by an approved 

participant in a designated vehicle: 

$80.00, with the maximum amount of 

$160.00 payable by a family (husband, 

wife, and minor children under 18 years 

of age). Payable following approval of 

the application but before use of the 

DCL by each participant. This fee is 

non-refundable, but may be waived by 

DHS. If a participant wishes to enroll 

more than one vehicle for use in the 

PORTPASS system, he or she will be 

assessed with an additional fee of: $42 

for each additional vehicle enrolled. 

(B) Form I–17. For filing a petition for 

school certification: $1,700, plus a site 

visit fee of $655 for each location listed 

on the form. 

(C) Form I–68. For application for 

issuance of the Canadian Border Boat 

Landing Permit under section 235 of the 

Act: $16.00. The maximum amount 

payable by a family (husband, wife, 

unmarried children under 21 years of 

age, and parents of either husband or 

wife) shall be $32.00. 

(D) Form I–94. For issuance of 

Arrival/Departure Record at a land 

border port-of-entry: $6.00. 

(E) Form I–94W. For issuance of 

Nonimmigrant Visa Waiver Arrival/ 

Departure Form at a land border port-ofentry under section 217 of the Act: 

$6.00. 

(F) Form I–246. For filing application 

for stay of deportation under 8 CFR part 

243: $155.00. 

(G) Form I–823. For application to a 

PORTPASS program under section 286 

of the Act—$25.00, with the maximum 

amount of $50.00 payable by a family 

(husband, wife, and minor children 

under 18 years of age). The application 

fee may be waived by the district 

director. If fingerprints are required, the 

inspector will inform the applicant of 

the current Federal Bureau of 

Investigation fee for conducting 

fingerprint checks prior to accepting the 

application fee. Both the application fee 

(if not waived) and the fingerprint fee 

must be paid to CBP before the 

application will be processed. The 

fingerprint fee may not be waived. For 

replacement of PORTPASS 

documentation during the participation 

period: $25.00. 

(H) Form I–901. For remittance of the 

I–901 SEVIS fee for F and M students: 

$200. For remittance of the I–901 SEVIS 

fee for certain J exchange visitors: $180. 

For remittance of the I–901 SEVIS fee 

for J–1 au pairs, camp counselors, and 

participants in a summer work/travel 

program: $35. There is no I–901 SEVIS 

fee remittance obligation for J exchange 

visitors in federally-funded programs 

with a program identifier designation 

prefix that begins with G–1, G–2, G–3 or 

G–7. 

(I) Special statistical tabulations—a 

charge will be made to cover the cost of 

the work involved: DHS Cost. 

(J) Set of monthly, semiannual, or 

annual tables entitled ‘‘Passenger Travel 

Reports via Sea and Air’’: $7.00. 

Available from DHS, then the 

Immigration & Naturalization Service, 

for years 1975 and before. Later editions 

are available from the United States 

Department of Transportation, contact: 

United States Department of 

Transportation, Transportation Systems 

Center, Kendall Square, Cambridge, MA 

02142. 

(K) Classification of a citizen of 

Canada to be engaged in business 

activities at a professional level 

pursuant to section 214(e) of the Act 

(Chapter 16 of the North American Free 

Trade Agreement): $50.00. 

(L) Request for authorization for 

parole of an alien into the United States: 

$65.00. 

(2) Fees for copies of records. Fees for 

production or disclosure of records 

under 5 U.S.C. 552 shall be charged in 

accordance with the regulations of the 

Department of Homeland Security at 6 

CFR 5.11. 

(3) Adjustment to fees. The fees 

prescribed in paragraph (b)(1)(i) of this 

section may be adjusted annually by 

publication of an inflation adjustment. 

The inflation adjustment will be 

announced by a publication of a notice 

in the Federal Register. The adjustment 

shall be a composite of the Federal 

civilian pay raise assumption and nonpay inflation factor for that fiscal year 

issued by the Office of Management and 

Budget for agency use in implementing 

OMB Circular A–76, weighted by pay 

and non-pay proportions of total 

funding for that fiscal year. If Congress 

enacts a different Federal civilian pay 

raise percentage than the percentage 

issued by OMB for Circular A–76, the 

Department of Homeland Security may 

adjust the fees, during the current year 

or a following year to reflect the enacted 

level. The prescribed fee or charge shall 

be the amount prescribed in paragraph 

(b)(1)(i) of this section, plus the latest 

inflation adjustment, rounded to the 

nearest $5 increment. 

(4) Fees for immigration court and 

Board of Immigration Appeals. Fees for 

proceedings before immigration judges 

and the Board of Immigration Appeals 

are provided in 8 CFR 1103.7. 

(c) Waiver of fees. (1) Eligibility for a 

fee waiver. Discretionary waiver of the 

fees provided in paragraph (b)(1)(i) of 

this section are limited as follows: 

(i) The party requesting the benefit is 

unable to pay the prescribed fee. 

(ii) A waiver based on inability to pay 

is consistent with the status or benefit 

sought including requests that require 

demonstration of the applicant’s ability 

to support himself or herself, or 

individuals who seek immigration 

status based on a substantial financial 

investment. 

(2) Requesting a fee waiver. To request 

a fee waiver, a person requesting an 

immigration benefit must submit a 

written request for permission to have 

their request processed without 

payment of a fee with their benefit 

request. The request must state the 

person’s belief that he or she is entitled 

to or deserving of the benefit requested, 

the reasons for his or her inability to 

pay, and evidence to support the 

reasons indicated. There is no appeal of 

the denial of a fee waiver request. 

(3) USCIS fees that may be waived. No 

fee relating to any application, petition, 

appeal, motion, or request made to U.S. 

Citizenship and Immigration Services 

may be waived except for the following: 

(i) Biometric Fee, 

(ii) Application to Replace Permanent 

Resident Card, 

(iii) Petition for a CNMI–Only 

Nonimmigrant Transitional Worker, 

(iv) Application for Travel Document 

when filed to request humanitarian 

parole, 

(v) Application for Advance 

Permission to Return to Unrelinquished 

Domicile, 

(vi) Notice of Appeal or Motion, when 

there is no fee for the underlying 

application or petition or that fee may 

be waived, 

(vii) Petition to Remove the 

Conditions of Residence based on 

marriage (Form I–751), 

(viii) Application for Employment 

Authorization, 

(ix) Application for Family Unity 

Benefits, 

(x) Application for Temporary 

Protected Status, 

(xi) Application for Suspension of 

Deportation or Special Rule 

Cancellation of Removal (pursuant to 

section 203 of Pub. L. 105–110), 

(xii) Application to File Declaration of 

Intention, Request for a Hearing on a 

Decision in Naturalization Proceedings 

(under section 336 of the INA), 

(xiii) Application for Naturalization, 

(xiv) Application to Preserve 

Residence for Naturalization Purposes, 

(xv) Application for Replacement 

Naturalization/Citizenship Document, 

(xvi) Application for Certificate of 

Citizenship, 

(xvii) Application for Citizenship and 

Issuance of Certificate under section 322 

of this Act, and 

(xviii) Any fees associated with the 

filing of any benefit request by a VAWA 


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self-petitioner or under sections 

101(a)(15)(T) (T visas), 101(a)(15)(U) (U 

visas), 106 (battered spouses of A, G, E– 

3, or H nonimmigrants), 240A(b)(2) 

(battered spouse or child of a lawful 

permanent resident or U.S. citizen), and 

244(a)(3) (Temporary Protected Status), 

of the Act (as in effect on March 31, 

1997). 

(4) The following fees may be waived 

only for an alien for which a 

determination of their likelihood of 

becoming a public charge under section 

212(a)(4) of the Act is not required at the 

time of an application for admission or 

adjustment of status.: 

(i) Application for Advance 

Permission to Enter as Nonimmigrant; 

(ii) Application for Waiver for 

Passport and/or Visa; 

(iii) Application to Register 

Permanent Residence or Adjust Status; 

(iv) Application for Waiver of 

Grounds of Inadmissibility. 

(5) Immigration Court fees. The 

provisions relating to the authority of 

the immigration judges or the Board to 

waive fees prescribed in paragraph (b) of 

this section in cases under their 

jurisdiction can be found at 8 CFR 

1003.8 and 1003.24. 

(6) Fees under the Freedom of 

Information Act (FOIA). FOIA fees may 

be waived or reduced if DHS determines 

that such action would be in the public 

interest because furnishing the 

information can be considered as 

primarily benefiting the general public. 

(d) Exceptions and exemptions. The 

Director of USCIS may approve and 

suspend exemptions from any fee 

required by paragraph (b)(1)(i) of this 

section or provide that the fee may be 

waived for a case or specific class of 

cases that is not otherwise provided in 

this section, if the Director determines 

that such action would be in the public 

interest and the action is consistent with 

other applicable law. This discretionary 

authority will not be delegated to any 

official other than the USCIS Deputy 

Director. 

(e) Premium processing service. A 

person submitting a request to USCIS 

may request 15 calendar day processing 

of certain employment-based 

immigration benefit requests. 

(1) Submitting a request for premium 

processing. A request for premium 

processing must be submitted on the 

form prescribed by USCIS, including the 

required fee, and submitted to the 

address specified on the form 

instructions. 

(2) 15-day limitation. The 15 calendar 

day processing period begins when 

USCIS receives the request for premium 

processing accompanied by an eligible 

employment-based immigration benefit 

request. 

(i) If USCIS cannot reach a final 

decision on a request for which 

premium processing was requested, as 

evidenced by an approval notice, denial 

notice, a notice of intent to deny, or a 

request for evidence, USCIS will refund 

the premium processing service fee, but 

continue to process the case. 

(ii) USCIS may retain the premium 

processing fee and not reach a 

conclusion on the request within 15 

days, and not notify the person who 

filed the request, if USCIS opens an 

investigation for fraud or 

misrepresentation relating to the benefit 

request. 

(3) Requests eligible for premium 

processing. 

(i) USCIS will designate the categories 

of employment-related benefit requests 

that are eligible for premium processing. 

(ii) USCIS will announce by its 

official Internet Web site, currently 

http://www.uscis.gov, those requests for 

which premium processing may be 

requested, the dates upon which such 

availability commences and ends, and 

any conditions that may apply. 

(f) Authority to certify records. The 

Director of USCIS, or such officials as he 

or she may designate, may certify 

records when authorized under 5 U.S.C. 

552 or any other law to provide such 

records. 

PART 204—IMMIGRANT PETITIONS 

■ 4. The authority citation for part 204 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 

1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR 

part 2. 

■ 5. Section 204.6 is amended by 

revising paragraph (m)(6) to read as 

follows: 

§ 204.6 Petitions for employment creation 

aliens. 

* * * * * 

(m) * * * 

(6) Termination of participation of 

regional centers. To ensure that regional 

centers continue to meet the 

requirements of section 610(a) of the 

Appropriations Act, a regional center 

must provide USCIS with updated 

information to demonstrate the regional 

center is continuing to promote 

economic growth, improved regional 

productivity, job creation, or increased 

domestic capital investment in the 

approved geographic area. Such 

information must be submitted to USCIS 

on an annual basis, on a cumulative 

basis, and/or as otherwise requested by 

USCIS, using a form designated for this 

purpose. USCIS will issue a notice of 

intent to terminate the participation of 

a regional center in the pilot program if 

a regional center fails to submit the 

required information or upon a 

determination that the regional center 

no longer serves the purpose of 

promoting economic growth, including 

increased export sales, improved 

regional productivity, job creation, and 

increased domestic capital investment. 

The notice of intent to terminate shall 

be made upon notice to the regional 

center and shall set forth the reasons for 

termination. The regional center must 

be provided 30 days from receipt of the 

notice of intent to terminate to offer 

evidence in opposition to the ground or 

grounds alleged in the notice of intent 

to terminate. If USCIS determines that 

the regional center’s participation in the 

Pilot Program should be terminated, 

USCIS shall notify the regional center of 

the decision and of the reasons for 

termination. As provided in 8 CFR 

103.3, the regional center may appeal 

the decision to USCIS within 30 days 

after the service of notice. 

* * * * * 

PART 244—TEMPORARY PROTECTED 

STATUS FOR NATIONALS OF 

DESIGNATED STATES 

■ 4. The authority citation for part 244 

continues to read as follows: 

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

8 CFR part 2. 

§ 244.20 [Removed] 

■ 5. Section 244.20 is removed. 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 6. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1324a; 

Title VII of Public Law 110–229; 8 CFR part 

2. 

■ 7. Section 274a.12 is amended by 

revising paragraphs (a)(8) and (a)(11) to 

read as follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

(a) * * * 

(8) An alien admitted to the United 

States as a nonimmigrant pursuant to 

the Compact of Free Association 

between the United States and of the 

Federated States of Micronesia, the 

Republic of the Marshall Islands, or the 

Republic of Palau; 

* * * * * 

(11) An alien whose enforced 

departure from the United States has 

been deferred in accordance with a 

directive from the President of the 

United States to the Secretary. 


srobinson on DSKHWCL6B1PROD with RULES4
Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations 58991 

Employment is authorized for the 

period of time and under the conditions 

established by the Secretary pursuant to 

the Presidential directive; 

* * * * * 

Janet Napolitano, 

Secretary. 

[FR Doc. 2010–23725 Filed 9–23–10; 8:45 am] 

BILLING CODE 9111–97–P 


srobinson on DSKHWCL6B1PROD with RULES4