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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: August 8, 2001 (Volume 66, Number 153)]
[Proposed Rules]               
[Page 41456-41462]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au01-10]                         
========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.
========================================================================
[[Page 41456]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 2072-00; AG Order No. 2497-2001]
RIN 1115-AF61

Adjustment of Certain Fees of the Immigration Examinations Fee 
Account

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to adjust the fee schedule of the 
Immigration Examinations Fee Account (IEFA) for certain immigration and 
naturalization applications and petitions, as well as the fee for the 
fingerprinting of applicants who apply for certain immigration and 
naturalization benefits. Fees collected from persons filing these 
applications and petitions are deposited into the IEFA and used to fund 
the full cost of processing immigration and naturalization applications 
and petitions and associated support benefits; the full cost of 
providing similar benefits to asylum and refugee applicants; and the 
full cost of similar benefits provided to other immigrants, as 
specified in the regulation, at no charge. The proposed fees will allow 
the Service to process applications and petitions that it expects to 
receive in 2002 and 2003, and provide funding to other programs 
supported by IEFA.

DATES: Written comments must be submitted on or before October 9, 2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4034, Washington, DC, 20536. To ensure 
proper handling, please reference INS Number 2072-00 on your 
correspondence. The public may also submit comments electronically at 
insregs@usdoj.gov. When submitting comments electronically, please 
include INS No. 2072-00 in the subject box. Comments are available for 
public inspection at the above address by calling (202) 514-3048 to 
arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Chief, Immigration 
Services Branch, Office of Budget, Immigration and Naturalization 
Service, 425 I Street NW., Room 5307, Washington, DC 20536, telephone 
(202) 314-3410.

SUPPLEMENTARY INFORMATION:

What Legal Authority Does the Service Have To Charge Fees?

A. Departments of Commerce, Justice, and State, the Judiciary, and 
Related Agencies Appropriation Acts of 1989 and 1991

    With reference to the fees for applications and petitions, the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriation Act, 1989, Pub. L. No. 100-459, Sec. 209, 102 
Stat. 2186, 2203 (1988) authorized the Immigration and Naturalization 
Service (Service) to prescribe and collect fees to recover the cost of 
providing certain immigration and naturalization benefits. That law 
also authorized the establishment of the IEFA in the Treasury of the 
United States. All revenue from fees collected for immigration and 
naturalization benefits are deposited in the IEFA and remain available 
to provide immigration and naturalization benefits and the collection, 
safeguarding and accounting for fees. 8 U.S.C. 1356(n).
    In subsequent legislation, the Departments of Commerce, Justice, 
and State, the Judiciary, and Related Agencies Appropriations Act, 
1991, Pub. L. No. 101-515, Sec. 210(d), 104 Stat. 2101, 2121 (1990), 
Congress further provided 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.'' 8 U.S.C. 1356(m).
    The House Conference Report to the bill entitled, ``Making 
Appropriations for the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies For the Fiscal Year Ending September 
30, 1996, and For Other Purposes,'' H.R. Conf. Rep. No. 104-378, at 82 
(1995), directs the Service to fund the cost of the Cuban-Haitian 
Entrant Program from the IEFA. The Report states, ``(t)he conferees 
have also agreed that the activities related to the resettlement of 
Cubans and Haitians should be transferred to the * * * Service and that 
the costs of these activities should be supported by the [IEFA].'' Id.
    With reference to the fingerprint fee, the Department of Justice 
Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2448 
(1997), required the Service, with limited exceptions, to prepare all 
fingerprint cards used to conduct FBI criminal background checks on 
individuals applying for certain benefits under the Immigration and 
Nationality Act of 1952, as amended (Act). This legislation also 
authorized the Service to charge a fee for this fingerprinting service. 
Id. The Service deposits this fee into the IEFA established by 8 U.S.C. 
1356(m)-(p). On March 29, 1998, the Service began charging $25 for the 
fingerprinting service.

B. The Independent Offices Appropriation Act, 1952

    The Service also employs the authority granted by the Independent 
Offices Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701, commonly 
referred to as the ``user fee statute,'' to develop its fees. The user 
fee statute directs Federal agencies to identify services provided to 
unique segments of the population and to charge fees for those 
services, rather than supporting such services through general tax 
revenues. The IOAA states that ``[i]t is the sense of Congress that 
each service or thing of value provided by an agency * * * to a person 
* * * is to be self-sustaining to the extent possible.'' 31 U.S.C. 
9701(a).
    The IOAA further provides that charges for such services or things 
of value should be fair and based on ``(A) the costs to the Government; 
(B) the value of the service or thing to the recipient; (C) the public 
policy or interest served; and (D) other relevant facts.'' 31 U.S.C. 
9701(b).

C. The Chief Financial Officers Act of 1990

    The Service must also conform to the requirements of the Chief 
Financial Officers Act of 1990 (CFO Act), Pub. L.

[[Page 41457]]

No. 101-576, 104 Stat. 2838 (1980). Subsection 205(a)(8) of the CFO Act 
requires each agency's Chief Financial Officer to ``review, on a 
biennial basis, the fees, royalties, rents, and other charges imposed 
by the agency for services and things of value it provides, and make 
recommendations on revising those charges to reflect costs incurred by 
it in providing those services and things of value.'' Id. at 2844, 31 
U.S.C. 902(a)(8).

What Federal Cost Accounting and Fee Setting Standards and 
Guidelines Were Used in Developing the Proposed Fee Changes?

A. Office of Management and Budget (OMB) Circular No. A-25, User 
Charges

    When developing fees for special benefits, the Service adheres to 
the principles contained in OMB Circular No. A-25, Revised, User 
Charges (1993). OMB Circular No. A-25 states that as a general policy a 
``user charge * * * will be assessed against each identifiable 
recipient for special benefits derived from Federal activities beyond 
those received by the general public.'' Id. at Sec. 6.
    The guidance contained in OMB Circular No. A-25 is applicable to 
the extent that it is not inconsistent with any Federal statute. For 
example, specific legislative authority to charge fees for special 
benefits takes precedence over OMB Circular No. A-25 when the statute 
expressly designates ``who pays the charge; how much is the charge; 
where collections are deposited.'' Id. at Sec. 4(b). When a statute 
does not address issues of how to calculate fees or what costs to 
include in the fee calculation, Federal agencies must follow the 
principles and guidance contained in OMB Circular No. A-25 to the 
fullest extent allowable. The guidance directs Federal agencies to 
charge the ``full cost'' of providing benefits when calculating fees 
that provide a special benefit to recipients. Id. at Sec. 6(a)(2)(a). 
Subsection 6(d) of OMB Circular No. A-25 defines ``full cost'' as 
including ``all direct and indirect costs to any part of the Federal 
Government of providing a good, resource, or service.'' These costs 
include, but are not limited to, an appropriate share of:
    (a) Direct and indirect personnel costs, including salaries and 
fringe benefits such as medical insurance and retirement;
    (b) Physical overhead, consulting, and other indirect costs, 
including material and supply costs, utilities, insurance, travel and 
rents or imputed rents on land, buildings, and equipment;
    (c) Management and supervisory costs; and
    (d) The costs of enforcement, collection, research, establishment 
of standards, and regulation.
    Finally, section 6(d)(1)(e) states that ``[f]ull cost shall be 
determined or estimated from the best available records of the agency, 
and new cost accounting systems need not be established solely for this 
purpose.''

B. Federal Accounting Standards Advisory Board Statement of Federal 
Financial Accounting Standards No. 4: Managerial Cost Accounting 
Concepts and Standards for the Federal Government

    When developing fees for services, the Service also adheres to the 
cost accounting concepts and standards recommended by the Federal 
Accounting Standards Advisory Board (FASAB). The FASAB was established 
in 1990, and its purpose is to recommend accounting standards for the 
Federal Government. The FASAB defines ``full cost'' to include ``direct 
and indirect costs that contribute to the output, regardless of funding 
sources.'' Federal Accounting Standards Advisory Board, Statement of 
Financial Accounting Standards No. 4: Managerial Cost Accounting 
Concepts and Standards for the Federal Government 36 (July 31, 1995). 
To obtain full cost, FASAB identifies various classifications of costs 
to be included, and recommends various methods of cost assignment, as 
will be discussed later. Id. at 36-42.

How Are the Adjudication of Immigration and Naturalization Benefits 
Funded and Supported?

A. Background

    In 1988, Congress established the IEFA. See Pub. L. No. 100-459, 
Sec. 209, 102 Stat. at 2203. In the first year of the IEFA's existence, 
the Service retained the appropriation that funded the processing of 
immigration and naturalization applications and petitions. During that 
year, fees collected for these applications and petitions were used to 
enhance the Adjudications and Naturalization Program (although Congress 
did temporarily direct the Service to deposit $50 million of the fee 
revenue into the General Fund of the Treasury). Id. In subsequent 
years, fees deposited into the IEFA have been the primary source of 
funding for the Adjudications and Naturalization Program, and other 
Programs as directed by Congress, and generally have replaced the 
annual appropriation that the Service received for such services. In 
subsequent legislation, Congress directed the Service to use revenue in 
the IEFA to fund the cost of asylum processing and other services 
provided to immigrants at no charge. See Pub. L. No. 101-515, sec. 
210(d)(2), 104 Stat. at 2121. Consequently, the Service began to add a 
``surcharge'' to the immigration and naturalization fees to recover 
these additional costs.

B. Sufficiency of the Current Fee Schedule

    In a fee review of the IEFA for certain immigration and 
naturalization applications and petitions completed in July 1997, the 
Service identified a shortfall of revenues to expenses in the IEFA 
because the fees did not recover the full costs of services provided. 
This review involved an in-depth analysis of resources, activities, and 
applications and petitions using an activity-based costing methodology. 
The majority of current immigration and naturalization application and 
petition fees are based on this review.
    A recent General Accounting Office report entitled ``Immigration 
Benefits--Several Factors Impede Timeliness of Application Processing'' 
(May 2001), identified inadequate automation as one of the three 
factors which has impeded the INS' ability to reduce backlogs, improve 
processing times, and effectively manage its workload. Id. at 2. The 
report also identified the need for increased quality controls when 
processing immigration and naturalization benefits. Id. at 42. 
Information technology and quality assurance are included within the 
definition of ``full cost'' as defined by OMB Circular No. A-25, 
however these costs are not currently recovered in the fees. 
Information technology and quality assurance are critical to improving 
service to applicants and petitioners and ensuring consistent 
adjudication. Therefore, the Service is including additional resources 
in its proposed fees that will be dedicated solely to recovering 
information technology and quality assurance costs.
    Since fiscal year (FY) 1998, the costs of providing immigration and 
naturalization benefits have risen as a result of general cost-of-
living increases. Therefore, the fees need to be adjusted to recover 
the full costs associated with the benefits provided.

C. Programs That Support Immigration and Naturalization Services

    The major Service programs that support immigration and 
naturalization services are discussed below.

[[Page 41458]]

    The Adjudications and Naturalization (A&N) Program processes, 
adjudicates, and ultimately grants or denies applications and petitions 
for benefits provided under the Act. It is responsible for processing 
applications and petitions for immigration and naturalization benefits, 
including, but not limited to: applications for permanent resident 
status; applications for work authorization; petitions for relatives; 
applications and petitions for immigrant and nonimmigrant workers; 
applications for travel documents; and applications for extensions of 
temporary stay by non-immigrants in the United States.
    Naturalization processes also include the examination of aliens to 
determine their qualifications for naturalization, the issuance of 
citizenship documents, the appearance of Service officials and the 
conduct of administrative naturalization oaths, and the appearance of 
Service officials at Federal and State Courts that administer 
naturalization oaths.
    The A&N Program operates in District Offices located throughout the 
United States, and in four Service Centers located in California, 
Texas, Nebraska, and Vermont. Applications for immigration, nationality 
and citizenship benefits, and naturalization are received and 
adjudicated by a corps of immigration Adjudication Officers and 
adjudication support personnel. District Officers adjudicate cases that 
may require personal appearances by applicants and petitioners. Service 
Center operations concentrate on cases that can be processed without 
individual appearances, and benefit from the economies generated by 
large volume, production-oriented processing.
    The Information and Records Management Program creates, maintains, 
stores and tracks records; responds to Freedom of Information Act and 
Privacy Act requests; provides information and application forms to the 
public (both in person and by telephone) on immigration-related 
matters; and compiles, analyzes, publishes, and issues the Service's 
statistical data.
    The Investigations and Intelligence Programs focus on the detection 
and deterrence of fraud to protect the integrity of benefits and 
documents legitimately provided by the Service to authorized persons.
    The International Affairs Program adjudicates refugee and asylum 
applications (including FBI fingerprint checks of certain applicants), 
conducts investigations for preference and relative visa petitions, and 
conducts other records checks and background investigations as required 
by overseas Service offices. Officers assigned to this program also 
provide assistance to citizens and lawful permanent residents abroad 
regarding foreign adoptions, immigration, or parole of alien spouses 
and children, and other benefits under the Act. They also review 
requests to the Attorney General to grant humanitarian parole into the 
United States for deserving persons. Through grants and cooperative 
agreements, staff also administer the Resettlement Program and 
Unaccompanied Minors Program.
    The Training Program provides the staff and resources necessary to 
maintain an employee development program that meets the training needs 
of the Service's asylum, adjudications, and naturalization workforce.
    The Data and Communications Program develops and operates automated 
information systems that support immigration and naturalization 
processes.
    The Legal Proceedings Program provides support and/or represents 
the Service in cases involving asylum, rescission, naturalization, visa 
petition, adjustment of status, registry, sections 212(c) (8 U.S.C. 
1182(c)) and 241(f) (8 U.S.C. 1231(f)) of the Act, and other 
examinations-related cases and matters.
    The Management and Administration Program supports Service 
personnel and offices involved in the processing and adjudication of 
applications and petitions by providing various administrative services 
including personnel, accounting, budgeting, equal employment 
opportunity, procurement, property management, fleet management, and 
security.

How Was the Proposed Application and Petition Fee Schedule 
Determined?

A. 1999 Fee Review

    The Service conducted a partial review of the current fee levels in 
FY 1999. This review attempted to build upon the extensive work 
completed in a 1997 review. In the FY 1999 review, the Service made 
numerous changes to the underlying methodology of the 1997 review and 
selected a few forms to conduct further analysis. As a result of the 
methodology changes, the FY 1999 model produced different fee levels 
than the 1997 review. However, the Service could not easily explain the 
programmatic reasons for the changes in fee levels, i.e., application 
processing had not significantly changed since the 1997 review. For 
example, the Application for Naturalization (N-400) fee increased by 
more than 50%, from $225 to $345. This increase of more than 50% would 
have followed a 137% increase, from $95 to $225, that took place in 
January 1999. At the time of the fee increase, the Service was able to 
identify programmatic reasons, such as the Naturalization Quality 
Procedures program, for the significant increase in the cost of 
processing naturalization applications. However, the processing of 
naturalization applications has remained fundamentally unchanged since 
January 1999. The Service also had concerns that the revised model may 
have inadvertently included costs associated with the application 
backlog. As a result, the Service did not have confidence in basing the 
proposed fee levels on the 1999 review due to questions regarding the 
revised methodology as well as the limited nature of the review.

B. Basis for the Proposed Fee Schedule

    Because of the apparent problems with the FY 1999 review, the 
Service is relying primarily on the 1997 review, on which the majority 
of current fees are based, to determine the proposed fees. This is 
consistent with OMB's statement in Circular No. A-25 that ``full cost 
shall be determined or estimated from the best available records of the 
agency.'' Sec. 6(d)(1)(e). The 1997 review was based on an Activity-
Based Costing (ABC) methodology to determine the full costs of 
processing immigration and naturalization applications and petitions. 
ABC is sanctioned by FASAB as one of the recommended full cost 
methodologies. In the 1997 review, applying ABC involved an in-depth 
analysis of resources, resource drivers, activities, activity drivers, 
and applications/petitions. The Service continues to believe that the 
current fees accurately represented the costs for adjudicating cases in 
1998. However, costs have increased as a result of inflation.
    Therefore, the current fees have been adjusted for inflation (per 
OMB inflationary factors) from 1998 to 2002. The adjusted fee level was 
then averaged with the 2003 inflationary fee level, as the fee is 
anticipated to be effective during 2002 and 2003. The Service then 
applied $5.00 equally to all applications and petitions to recover 
information technology and quality assurance costs that are not 
included in the current fee levels. The Service believes that this 
approach recovers the full costs of processing immigration 
applications/petitions that it expects to receive over the next two 
years.
    The Service requests comments on whether it should set separate fee 
schedules for FY 2002 and FY 2003 versus a single, blended schedule 
that is

[[Page 41459]]

effective for both years. Commenters may want to consider whether 
changing fee schedules would unduly confuse applicants and petitioners.

Does the Service Plan on Conducting a New Fee Review?

    Yes, the Service plans on conducting a new fee study during the 
next two years. Based on its experience with the 1999 review, the 
Service plans on conducting a review of all application forms, as it 
did in the 1997 review. As with this proposed rule, the Service intends 
to continue using activity-based costing methodology as the primary 
basis for the fees.

How Was the Proposed Fingerprint Fee Determined?

    The Service began to operate its own fingerprint program in 1998. 
Individuals applying for certain immigration and naturalization 
benefits that require an FBI criminal background check are 
fingerprinted by one of four methods. The four methods are as follows:
    (1) The Service fingerprints the majority of individuals at 129 
Service offices known as Application Support Centers (ASCs);
    (2) Designated Law Enforcement Agencies (DLEAs) that have entered 
into cooperative agreements with the Service fingerprint individuals 
who do not reside near an ASC;
    (3) Service personnel use mobile equipment to fingerprint 
individuals at remote locations (mobile routes);
    (4) United States consular offices or military installations abroad 
fingerprint individuals residing outside of the United States.
    The Service charges a fee to recover the operating costs of its 
fingerprinting program. Congress directed the Service to implement 
changes to its fingerprinting process within three months. This short 
timeframe did not allow for an in-depth analysis of the costs. 
Accordingly, the Service initially estimated the appropriate fee for 
fingerprinting at $25 per individual and the fee was established by 
publication of an interim rule in the Federal Register. See 
Establishing a Fee for Fingerprinting by the Service, 63 FR 12,979, 
12,986 (interim rule March 17, 1998). The Service began collecting that 
fee on March 29, 1998. However, the Service soon determined that it was 
not recovering the full costs of the fingerprint program.
    To determine the actual cost of fingerprinting individuals applying 
for certain immigration and naturalization benefits, the Service 
reviewed the FY 1999 costs of operating the fingerprint program. The 
applications included in this review were Forms I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant; I-485, Application to 
Register Permanent Residence or Adjust Status; I-600/600A, Petition to 
Classify Orphan as an Immediate Relative/Application for Advance 
Processing of Orphan Petition; I-817, Application for Benefits under 
the Family Unity Program; and N-400, Application for Naturalization. 
The Service determined the number of individuals fingerprinted by 
taking an average of the number of prints taken for FY 1998 and FY 1999 
in order to allow for variances in available application volumes. To 
determine the fingerprinting unit cost for individuals seeking certain 
immigration and naturalization benefits, the Service divided the cost 
of the fingerprint capture program by the average number of individuals 
fingerprinted.
    The Service assigned the cost of operating and maintaining the 
ASCs, DLEAs, and mobile routes to the cost of operating and maintaining 
the fingerprint capture program. The main costs included the fee for 
contractor services at the ASCs and the Service's labor cost for 
persons assigned to the fingerprinting program. The FY 1999 cost was 
adjusted for inflation (per OMB inflationary factors) to FY 2000 and FY 
2001, and averaged FY 2002 and FY 2003 costs, as the fee is anticipated 
to be effective during these latter fiscal years.

What Are the Proposed Fees and How Do the Proposed Fees Compare to 
the Current Fees?

A. Applications and Petitions

    The proposed fees, current fees, and their dollar differences are 
displayed in Table 1.

                         Table 1.--Current Versus Proposed Application and Petition Fees
----------------------------------------------------------------------------------------------------------------
                                                                               Proposed     Current
            Form No.                             Description                      fee         fee       Change
----------------------------------------------------------------------------------------------------------------
I-17...........................  Petition for Approval of School Attendance         $230        $200         $30
                                  by Non-Immigrant Student.
I-90...........................  Application to Replace Alien Registration           130         110          20
                                  Card.
I-102..........................  Application for Replacement/Initial                 100          85          15
                                  NonImmigrant Arrival/Departure Document.
I-129..........................  Petitions for Nonimmigrant Worker..........         130         110          20
I-129F.........................  Petition to Classify Nonimmigrant as Fiance         110          95          15
I-130..........................  Petition to Classify Status of Alien                130         110          20
                                  Relative for Issuance of Immigrant Visa.
I-131..........................  Application for Travel Document............         110          95          15
I-140..........................  Immigrant Petition for Alien Worker........         135         115          20
I-191..........................  Application for Advance Permission to               195         170          25
                                  Return to Unrelinquished Domicile.
I-192..........................  Application for Advance Permission to Enter         195         170          25
                                  as a Non-Immigrant.
I-193..........................  Application for Waiver of Passport and/or           195         170          25
                                  Visa.
I-212..........................  Application to Reapply for Admission into           195         170          25
                                  the U.S. After Deportation.
I-360..........................  Petition for Amerasian, Widow(er), or               130         110          20
                                  Special Immigrant.
I-485..........................  Application to Register Permanent Residence         255         220          35
                                  or Adjust Status.
I-506..........................  Application for Change of Nonimmigrant               85          70          15
                                  Classification.
I-526..........................  Immigrant Petition by Alien Entrepreneur...         400         350          50
I-539..........................  Application to Extend/Change Nonimmigrant           140         120          20
                                  Status.
I-600/600A.....................  Petition to Classify Orphan as an Immediate         460         405          55
                                  Relative/Application for Advance
                                  Processing or Orphan Petition.
I-601..........................  Application for Waiver on Grounds of                195         170          25
                                  Excludability.
I-612..........................  Application for Waiver of the Foreign               195         170          25
                                  Residence Requirement.
I-751..........................  Petition to Remove the Conditions on                145         125          20
                                  Residence.
I-765..........................  Application for Employment Authorization...         120         100          20
I-817..........................  Application for Voluntary Departure under           140         120          20
                                  the Family Unity Program.
I-824..........................  Application for Action on an Approved               140         120          20
                                  Application or Petition.
I-829..........................  Petition by Entrepreneur to Remove                  395         345          50
                                  Conditions.
N-300..........................  Application to File Declaration of                   60          50          10
                                  Intention.

[[Page 41460]]


N-336..........................  Request for Hearing on a Decision in                195         170          25
                                  Naturalization Procedures.
N-400..........................  Application for Naturalization.............         260         225          35
N-470..........................  Application to Preserve Residence for                95          80          15
                                  Naturalization Purposes.
N-565..........................  Application for Replacement of                      155         135          20
                                  Naturalization/Citizenship Document.
N-600..........................  Application for Certification of                    185         160          25
                                  Citizenship.
N-643..........................  Application for Certification of                    145         125          20
                                  Citizenship in Behalf of an Adopted Child.
----------------------------------------------------------------------------------------------------------------

B. Fingerprint Fee

    Based on its review of costs, the Service is proposing to increase 
the fingerprint fee to $50. The proposed fee has been rounded up to the 
nearest whole $5 in accordance with the Service's standard practice.

            Table 2.--Current Versus Proposed Fingerprint Fee
------------------------------------------------------------------------
                                       Proposed     Current
             Description                  fee         fee       Change
------------------------------------------------------------------------
Fingerprinting by the Service.......         $50         $25         $25
------------------------------------------------------------------------

Why Is the Fee for LIFE Act Adjustment of Status Applications (I-
485) Different Than the Fee Proposed in This Rule?

    In an interim final rule published June 1, 2001, Adjustment of 
Status Under Legal Immigration Family Equity (LIFE) Act and 
Legalization Provisions and LIFE Act Amendments Family Unity 
Provisions, 66 FR 29,661, 29,672 (June 1, 2001), the Service 
established a $330 fee for filing legalization applications under 
section 1004 of the Legal Immigration Family Unity Equity Act (LIFE 
Act) and the LIFE Act Amendments. In establishing the fee, the Service 
first identified the adjustment of status application (Form I-485) 
process as most similar to the new legalization application process. 
Id. at 29,667. The Service then referred to the 1999 review, which 
identified an estimated full cost of the Form I-485 to be $330. Id. at 
29,668.
    The Service now questions the methodology and limited nature of 
this review and is proposing that the Form I-485 fee be $255. However, 
the Service also recognizes that there are start-up costs associated 
with processing legalization applications that were not accounted for 
in the 1999 review and, therefore, will not be recovered with the 
proposed Form I-485 fee. As a result, the Service is currently 
reviewing the $330 fee established for filing legalization 
applications. In light of these developments, the Service intends to 
publish a separate Federal Register document to extend or reopen, as 
appropriate, the comment period on the $330 fee. Moreover if the 
Service determines that the current full cost of a legalization 
application is not $330, it will undertake a separate rulemaking to 
adjust the fee and take whatever actions are appropriate to ensure 
equity.

Does the Service Have the Authority To Waive Fees on a Case-by-Case 
Basis?

    Yes, the Service has the authority to waive fees on a case-by-case 
basis pursuant to 8 CFR 103.7(c).

How Does This Proposal Fit With the President's Backlog Initiative?

    The Administration is committed to building and maintaining an 
immigration services system that ensures integrity, provides services 
accurately and in a timely manner, and emphasizes a culture of respect. 
The President proposed a universal six-month processing standard for 
all immigration applications. To support this standard, the 2002 Budget 
proposed $100 million--the first installment in a five-year, $500 
million initiative to address the backlog problem.
    In contrast to the budget, which requests appropriated resources to 
eliminate the application backlog, this proposed rule addresses the 
costs of processing cases that will be filed over the next two years. 
If the Service does not adjust the current fees to reflect the costs of 
processing applications and petitions, the backlog will likely 
increase.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b), has 
reviewed this regulation and by approving it has determined that this 
rule will not have a significant economic impact on a substantial 
number of small entities.
    The majority of applications and petitions are submitted by 
individuals and not small entities as that term is defined in 5 U.S.C. 
601(6).
    The Service acknowledges, however, that a number of small entities, 
particularly those filing business-related applications and petitions, 
such as Forms I-140, Immigrant Petition for Alien Worker; I-526, 
Immigrant Petition by Alien Entrepreneur; and I-829, Petition by 
Entrepreneur to Remove Conditions may be affected by this rule. For FY 
2001, the Service projects approximately 130,000 Forms I-140, 400 Forms 
I-526, and 400 Forms I-829 will be filed. However, this volume 
represents petitions filed by a variety of businesses, ranging from 
large multi-national corporations to small domestic businesses. The 
Service does not collect data on the size of the businesses filing 
petitions, and therefore does not know the number of small businesses 
that may be affected by this rule. Even if all of the employers 
applying for benefits met the definition of small businesses, however, 
the resulting degree of economic impact would not require a Regulatory 
Flexibility Analysis to be performed.

Unfunded Mandates Reform Act of 1995

    This rule will not impose a mandate of enforceable duty on State, 
local and tribal governments, in the aggregate, or on the private 
sector, and it will not significantly or uniquely affect small 
governments. Accordingly, no further actions are necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is a major rule as defined by the Small Business 
Regulatory

[[Page 41461]]

Enforcement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996). 
Based on the data included in the proposed rule, this rule will result 
in an annual effect on the economy of $169 million, in order to 
generate the revenue necessary to fund the increased expenses of 
processing the Service's immigration and naturalization applications 
and petitions. The increased fees will be paid by persons who file 
applications or petitions to obtain immigration benefits.
    The projected increase in revenues probably overstates the actual 
receipt of applications and petitions because it is likely that there 
will be fewer applications and petitions filed due to the 
implementation of the higher fees. The decrease in volume due to the 
higher fees has a real economic effect in that there will be fewer 
people applying for and receiving services paid for by the Service's 
user fees.

Executive Order 12866

    This rule is considered by the Department of Justice to be an 
economically ``significant regulatory action'' under section 3(f) of 
Executive Order 12866, Regulatory Planning and Review, because it will 
have an annual effect on the economy of over $100 million. Without the 
fee adjustments, the Service estimates that it will collect 
approximately $815 million in fees for immigration and naturalization 
benefits in FY 2002. If the fee adjustments become effective on January 
1, 2002, the Service anticipates collecting approximately $942 million 
in FY 2002--$127 million in additional revenue.
    The projected increase in revenues probably overstates the actual 
receipt of applications and petitions because it is likely that there 
will be fewer applications and petitions filed due to the 
implementation of the higher fees. The decrease in volume due to the 
higher fees has a real economic effect in that there will be fewer 
people applying for and receiving services paid for by the Service's 
user fees.
    This increase in revenue will be used to fund the processing of 
immigration and naturalization applications and petitions. The revenue 
increase is based on the Service's costs and workload volumes. The 
volume of applications and petitions filed is projected based on a 
regression analysis of a 5-year history of actual applications and 
petitions received by the Service. The regression analysis is adjusted 
for any anticipated or actual changes in laws, policies, or procedures 
that may affect future filing patterns. The proposed fees will be paid 
by an estimated 6.6 million individuals and businesses filing 
immigration and naturalization applications and petitions. Accordingly, 
this regulation has been submitted to OMB for review.

Executive Order 13132

    This rule 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 has determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109 
Stat. 163 (1995), all Departments are required to submit to OMB, for 
review and approval, any reporting or recordkeeping requirements 
inherent in a final rule. This rule does not impose any new reporting 
or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 103

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

    Accordingly, part 103 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

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

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557; 3 CFR, 1982 Comp., p.166; 8 CFR part 2.

    2. In Sec. 103.7, paragraph (b)(1) is amended by revising the entry 
``For fingerprinting by the Service'' and by revising the entries for 
the following forms. The revisions read as follows:

Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    For fingerprinting by the Service. A service fee of $50 will be 
charged by the Service for any individual who is required to be 
fingerprinted in connection with an application or petition for certain 
immigration and naturalization benefits (other than asylum), and whose 
residence is in the United States as defined in section 101(a)(38) of 
the Act.
* * * * *
    Form I-17. For filing an application for school approval, except in 
the case of a school or school system owned or operated as a public 
educational institution or system by the United States or a state or 
political subdivision thereof--$230.00.
* * * * *
    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--$130.00.
* * * * *
    Form I-102. For filing a petition for an application (Form I-102) 
for Arrival/Departure Record (Form I-94) or Crewman's Landing (Form I-
95), in lieu of one lost, mutilated, or destroyed--$100.00.
* * * * *
    Form I-129. For filing a petition for a nonimmigrant worker, a base 
fee of $130. For filing an H-1B petition, a base fee of $130 plus an 
additional $1,000 fee in a single remittance of $1,130. The remittance 
may be in the form of one or two checks (one in the amount of $1,000 
and the other in the amount of $130). Payment of this additional $1,000 
fee is not waivable under Sec. 103.7(c)(1). Payment of this additional 
$1,000 fee is not required if an organization is exempt under 
Sec. 214.2(h)(19)(iii) of this chapter, and this additional $1,000 fee 
also does not apply to certain filings by any employer as provided in 
Sec. 214.2(h)(19)(v) of this chapter.
    Form I-129F. For filing a petition to classify nonimmigrant as 
fiance or fiance under section 214(d) of the Act--$110.00.
    Form I-130. For filing a petition to classify status of alien 
relative for issuance of immigrant visa under section 204(a) of the 
Act--$130.00.
    Form I-131. For filing an application for travel documents--
$110.00.
    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--$135.00.
* * * * *

[[Page 41462]]

    Form I-191. For filing applications for discretionary relief under 
section 212(c) of the Act--$195.00.
    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--$195.00.
    Form I-193. For filing an application for waiver of passport and/or 
visa--$195.00.
    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--
$195.00.
* * * * *
    Form I-360. For filing a petition for an Amerasian, Widow(er), or 
Special Immigrant--$130.00, except there is no fee for a petition 
seeking classification as an Amerasian.
    Form I-485. For filing an application for permanent resident status 
or creation of a record of lawful permanent residence--$255.00 for an 
applicant 14 years of age or older; $160.00 for an applicant under the 
age of 14 years; no fee for an applicant filing as a refugee under 
section 209(a) of the Act. All applicants filing for Adjustment of 
Status under LIFE Act Legalization (Public Law 106-553) must pay 
$330.00.
* * * * *
    Form I-506. For filing an application for change of nonimmigrant 
classification under Section 248 of the Act--$85.00.
    Form I-526. For filing a petition for an alien entrepreneur--
$400.00.
* * * * *
    Form I-539. For filing an application to extend or change 
nonimmigrant status--$140.00.
* * * * *
    Form I-600. For filing a petition to classify orphan as an 
immediate relative for issuance of immigrant visa under section 204(a) 
of the Act. (When more than one petition is submitted by the same 
petitioner on behalf of orphans who are brothers or sisters, only one 
fee will be required.)--$460.00.
    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.)--$460.00.
    Form I-601. For filing an application for waiver of ground of 
inadmissibility under section 212(h) or (i) of the Act. (Only a single 
application and fee shall be required when the alien is applying 
simultaneously for a waiver under both those subsections.)--$195.00.
    Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$195.00.
* * * * *
    Form I-751. For filing a petition to remove the conditions on 
residence, based on marriage--$145.00.
    Form I-765. For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$120.00.
* * * * *
    Form I-817. For filing an application for voluntary departure under 
the Family Unity Program--$140.00.
* * * * *
    Form I-824. For filing for action on an approved application or 
petition--$140.00.
    Form I-829. For filing a petition by entrepreneur to remove 
conditions--$395.00.
* * * * *
    Form N-300. For filing an application for declaration of 
intention--$60.00.
    Form N-336. For filing a request for hearing on a decision in 
naturalization proceedings under section 366 of the Act--$195.00.
    Form N-400. For filing an application for naturalization--$260.00.
* * * * *
    Form N-470. For filing an application for section 316(b) or 317 of 
the Act benefits--$95.00.
    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--$155.00.
    Form N-600. For filing an application for a certificate of 
citizenship under section 309(c) or section 341 of the Act--$185.00.
    Form N-643. For filing an application for a certificate of 
citizenship on behalf of an adopted child--$145.00.
* * * * *
    Dated: August 3, 2001.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 01-19875 Filed 8-3-01; 2:37 pm]
BILLING CODE 4410-10-P


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