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[Federal Register: August 29, 2005 (Volume 70, Number 166)]
[Rules and Regulations]               
[Page 50954-50957]
From the Federal Register Online via GPO Access []



U.S. Citizenship and Immigration Services

8 CFR Part 103

[CIS No. 2245-02 and Docket No. DHS-2004-0021]
RIN 1615-AA88

Adjustment of the Appeal and Motion Fees To Recover Full Costs

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Final rule.


SUMMARY: This rule adjusts the fee for filing appeals of, and motions 
to reopen or reconsider, any decision under the immigration laws in any 
type of proceeding other than those described at 8 CFR 1003.1(b), over 
which the Board of Immigration Appeals (BIA) in the Department of 
Justice (DOJ) has appellate jurisdiction. The rule also adds a non-
substantive modification to the language of the fee regulation in order 
to enhance clarity.
    This rule applies to fees for appeals and motions relating to the 
types of cases under the jurisdiction of the Administrative Appeals 
Office (AAO). The AAO is an appellate office of U.S. Citizenship and 
Immigration Services (USCIS). The BIA remains a component of DOJ, and 
has appellate jurisdiction over the orders of immigration judges, 
denials of relative immigrant visa petitions (Form I-130), and 
decisions involving administrative fines and penalties. This rule does 
not apply to, or affect in any manner, the fees associated with the 
BIA. Appeals from denials of all other types of applications, such as 
Applications for Temporary Protected Status (Form I-821), and 
petitions, such as Petitions for Amerasian, Widow(er), or Special 
Immigrant (Form I-360), and any subsequently filed motions, are under 
the jurisdiction of the AAO.
    The fees, deposited into the Immigration Examinations Fee Account 
(IEFA), are adjusted from $110 to $385 to recover the full costs 
associated with the processing of an appeal, motion to reopen or motion 
to reconsider. Federal statutes authorize USCIS to establish and 
collect fees to recover the full cost of processing immigration benefit 
applications, rather than supporting these services with tax revenue.
    Finally, the rule replaces a reference in the regulations to an 
obsolete form with a reference to the revised version of that form.

DATES: Effective Date: This final rule is effective September 28, 2005.
    Compliance Date: Applications mailed, postmarked, or otherwise 
filed, on or after September 28, 2005 require the new fee.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Director, Office of 
Budget, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., 4th Floor, Washington, 
DC 20529, telephone (202) 272-1930.


I. Introduction

    USCIS published a proposed rule in the Federal Register on November 
30, 2004, at 69 FR 69546, to adjust the fees for processing of an 
appeal, motion to reopen or motion to reconsider. The proposed rule was 
published with a 30-day comment period, which closed on December 30, 
2004. USCIS received 14 comments pertaining to the adjustment of the 
fees for processing of an appeal or motion to reopen or motion to 
    Comments were received from 13 concerned individuals and one 
association. All of the relevant comments were carefully considered 
before preparing this final rule. USCIS' responses to the concerns 
raised by the commenters primarily are based upon the November 2002 fee 
review report provided by KMPG Consulting.
    The following is a discussion of the comments received for the 
November 30, 2004 proposed rule and USCIS' response.

II. Summary of Comments

A. Why Is the Fee Increase Necessary?

    Eight comments were received expressing dissatisfaction with the 
size of the fee increase. Three commenters also stated that the 
increase in appeals and motions of 12% over the last 10 years does not 
justify the proposed increased fees. USCIS notes, however, that the fee 
increase is not based upon the 12% increase in the filing of motions 
and appeals. While the fees for other applications have increased more 
than threefold during this time, the appeal and motion fee has remained 
the same.
    The increase in fees is necessary so that USCIS can recover the 
full costs of processing appeals and motions.
    Three commenters asserted that the increase in fees should also 
increase the timeliness and quality of the decisions rendered. 
Similarly, one commenter suggested that the AAO be added to the USCIS 
backlog reduction plan, while another indicated support for the 
proposed increase with the stipulation that the increase be used to 
fund additional resources for the AAO.
    USCIS agrees with commenters that the timeliness and quality of the 
decisions is important, as are increases in personnel and resources and 
notes that such considerations were taken into account during the fee 
review. In response to the commenter's suggestion that the AAO be added 
to the USCIS backlog reduction plan, we note that the AAO has been a 
part of the backlog reduction plan since its inception. As indicated in 
the proposed rule, based on the increase in motion and appeal filings 
from 1993 to 2002, a fee review was conducted by a consulting firm to 
determine the fee necessary to ensure that USCIS was able to collect 
the full cost for processing motions and appeals. According to Office 
of Management and Budget (OMB) Circular A-25, the ``full

[[Page 50955]]

cost'' includes direct and indirect personnel costs, physical overhead, 
consulting, and other indirect costs (e.g., material and supply costs, 
utilities, insurance, travel and rents), management and supervisory 
costs, and the costs of collection, research, and regulation. Included 
as part of the fee study was a determination of increased staffing 
necessary to meet the President's 5-year goal of processing immigration 
benefit applications in 6 months or less, as well as the cost of labor-
intensive activities such as legal research, decision writing, and 
decision review.
    Three commenters opposed the proposed fee increase because USCIS 
provides no recourse to waive fees or refund fees in order to correct 
an obvious error on the part of USCIS. Examples of obvious errors 
include an erroneous finding that an appeal or motion was not timely 
filed or an erroneous finding related to statutory eligibility such as 
age or marital status. Additionally, one commenter suggested that USCIS 
waive or refund fees when a decision is reversed on a motion to 
reconsider due to USCIS error.
    In response to these comments, USCIS notes that it does have the 
authority to reopen a case sua sponte and utilizes this ability in 
instances where, in its discretion, it determines that there is an 
obvious error. An applicant may bring such an error to the attention of 
the AAO, and the AAO may reopen the case on its own motion. In such 
cases, the applicant does not need to submit any fee for the motion, so 
that waiver of the fee or refund of the fee is not an issue. In 
instances where an applicant pays a fee for a motion to reopen or 
reconsider, without first attempting to resolve the error with the AAO, 
the AAO may refund the fee if, in its discretion, it determines that 
there clearly was an error in the AAO's original decision. Service 
centers and district offices also have procedures in place to issue 
refunds in certain instances where USCIS error can be demonstrated.
    One commenter stated that the administrative costs for processing 
one particular type of appeal should not be ``anything close to'' $385, 
because the decisions of the AAO often ``fail to address the issues 
presented, fail to provide any legal or factual analysis, fail to cite 
any legal authority, inconsistently apply general principles to 
identical factual situations, and completely disregard various 
contractual obligations of the DHS.'' USCIS and the AAO are very 
careful about the quality of appellate decisions. Decisions are 
reviewed before issuance to ensure that there are no such failings. 
Moreover, as indicated above and in the proposed rule, the $385 fee is 
necessary to maintain USCIS appellate operations without passing costs 
on to taxpayers.

B. Why Doesn't USCIS Charge a Lower Fee for Motions to Reconsider?

    Five comments were received opposing the increase in fees for so-
called ``simpler'' appeals and motions to reconsider, while supporting 
the fee increase for more complex appeals and motions to reopen. USCIS 
does not accept the premise that there is a standard by which the 
complexity of appeals can be measured, or that the differences between 
the two types of motions can be apportioned in order to justify 
separate fees.
    USCIS regulations set forth a uniform appeals process. Appeals are 
considered on a case-by-case basis. Each case has unique substantive 
components that impact the ease or complexity of review. A motion to 
reconsider can, in a particular case, consume more USCIS resources than 
a motion to reopen. The process, however, is consistent throughout. In 
each case, the adjudicating office initially reviews each Form I-290B 
(Notice of Appeal to the AAO) on a case-by-case basis. The adjudicating 
office then decides the next appropriate step (i.e., forward the matter 
to AAO for review, re-adjudicate and approve, or re-adjudicate and 
issue another request for evidence). Depending upon the timeframe and 
action, additional background checks may also be required.
    This procedure does not vary significantly by application or 
petition type. It is true that in certain cases an application or 
petition is not forwarded to the AAO for review, but the conclusion 
that this path would mean a significantly lower administrative cost to 
USCIS does not necessarily follow. A service center or district office, 
after the preliminary review of the material provided, must complete 
many of the same tasks normally completed by the AAO: Data entry, 
additional review of the record, security checks, and issuance of a 
decision. These offices may even have to issue an additional Request 
For Evidence.
    A more varied fee structure that accommodated perceived differences 
in the degree of complexity for appeals would be more difficult to 
administer and could, itself, increase costs. These increased costs 
would necessarily be reflected in higher overall fees.
    Although there are 66 separate petitions or applications which may 
underlay the actual appeal or motion, because the processes for an 
appeal and motion are similar, USCIS and the consulting firm treated 
them similarly for purposes of the fee review and arrived at a 
statistically meaningful average processing time due to the fact that 
the appeals and motion process is singular as set forth in the 
    Similarly, despite the fact that the regulations provide different 
eligibility requirements for the filing of a motion to reopen versus a 
motion to reconsider, because the process for filing and adjudicating 
each motion is the same, a separate fee is not warranted. It is common 
practice with other USCIS applications and petitions to charge one 
standard application processing fee despite the fact that one 
application or petition may be used for the adjudication of benefits 
under several different statutory and/or regulatory provisions and may 
require the demonstration of various, unique eligibility requirements.
    For example, the Form I-485, Application to Register Permanent 
Residence or Adjust Status, covers not only family as well as 
employment-based and Diversity Visa adjustment of status, but also 
adjustment under Registry, the Haitian Refugee Immigration Fairness Act 
(HRIFA), the Nicaraguan Adjustment and Central American Relief Act 
(NACARA), the Legal Immigration and Family Equity (LIFE) Act, the Cuban 
Adjustment Act and others. The Form I-129, Petition for a Nonimmigrant 
Worker, likewise covers change or extension of nonimmigrant status as 
well as the beneficiary's eligibility for a variety of classifications 
of nonimmigrant status. Nonetheless, one application processing fee is 
charged. One fee will similarly be assessed for the Form I-290B.
    Another commenter stated that, despite the statement to the 
contrary in the proposed rule, the new fee will have a negative impact 
on small businesses. The commenter challenges the validity of the small 
business analysis in the proposed rule, and recommends that USCIS 
``take into consideration the levels at which small companies are not 
appealing denials.'' It would be possible for USCIS to examine the 
percentage of denials for which no appeal is filed, but it would not be 
practical or cost effective for USCIS to assess the extent to which the 
fee for the appeal served as the basis for the decision to not file an 
appeal. The Regulatory Flexibility Act portion of this rule discusses 
more fully USCIS' perspective on how the appeal fee increase may or may 
not affect the decision to pursue an appeal. The commenter also 
recommended that the number of denials of Form I-129, Petition for 
Nonimmigrant Worker, be included in the analysis of the effect of

[[Page 50956]]

this rule on small businesses. That recommendation has been adopted.
    Another comment noted that the proposed rule failed to remove 
reference to the obsolete Form I-290A in all pertinent areas of the 
regulation. The commenter is incorrect, because the listing for the 
Form I-290A in 8 CFR 103.7(b) was removed by the Final Rule published 
April 15, 2004 (69 FR 20527).
    Finally, several additional comments were received that were beyond 
the scope of the proposed rule and, therefore, are not mentioned 
    Accordingly, this final rule implements the new fees as outlined in 
the proposed rule, without substantive change. Any applications or 
petitions mailed, postmarked, or otherwise filed, on or after September 
28, 2005 will require the new fee.

III. Fee Adjustments

    The fee adjustments, as adopted in this rule, are shown as follows:

                         Description                              Fee
Appeal/Motion Fee............................................   $385.00

IV. Technical Improvements

    This rule also clarifies that the fee amount of $385 also applies 
when an appeal is filed based on the denial of a petition with multiple 
beneficiaries, provided they are all beneficiaries of the same 
petition, and therefore affected by the same decision. In so doing, it 
corrects a transcription error in the Code of Federal Regulations in 
1989 that failed to amend the fee amount from $50 to $110 for two or 
more aliens when the aliens are covered by one decision at the same 
time that the base fee (for one alien) was raised from $50 to $110, as 
provided in the final rule dated April 4, 1989 (54 FR 13513). The error 
resulted in an unintended discrepancy between the base fee, and the fee 
for two or more aliens when the aliens are covered by one decision. 
Notwithstanding this transcription error, the form instructions 
reflected the proper fee amount. Accordingly, affected aliens have been 
properly charged, and the former Immigration and Naturalization Service 
as well as USCIS have collected the correct fee since the 1989 
amendment. This rule corrects the discrepancy in 8 CFR 103.7(b)(1) and 
brings this fee as properly amended ($50 to $110) from $110 to $385 so 
that both fees are now equal as intended.
    Finally, this final rule also makes a conforming change to 8 CFR 
103.5(a)(1)(iii) to replace an obsolete reference to a withdrawn form, 
Form I-290A, with a reference to Form I-290B.

Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with 5 U.S.C. 
605(b), and by approving it, DHS has determined that this rule will not 
have a significant economic impact on a substantial number of small 
entities since a majority of motions and appeals are submitted by 
individuals and not small entities as that term is defined in 5 U.S.C. 
    DHS acknowledges, however, that some small entities, particularly 
those filing appeals of and/or motions to reopen or to reconsider 
denials of business-related petitions, such as the Form I-140, 
Immigrant Petition for Alien Worker; Form I-526, Immigrant Petition for 
Alien Entrepreneur; Form I-129, Petition for Nonimmigrant Worker; and 
Form I-829, Petition for Entrepreneur to Remove Conditions; may be 
affected by this rule. USCIS does not collect data on the size of the 
businesses filing appeals or motions related to employment-based 
petitions, and therefore does not know the precise number of small 
businesses that may be affected by this rule (as the majority of 
petitions are filed by individuals). USCIS records indicate that the 
following numbers of business-related petitions were denied during the 
Fiscal Year 2003/2004 biennial period:

Form I-140, Immigrant Petition for Alien Worker (35,866 denials)
Form I-526, Immigrant Petition by Alien Entrepreneur (217 denials)
Form I-829, Petition by Entrepreneur to Remove Conditions (174 denials)
Form I-129, Petition for Nonimmigrant Worker (171,154 denials)

    Based on these figures, the volume of denied petitions that might 
be appealed to the USCIS over a two-year period is 207,411. During the 
fiscal years 2003 and 2004, the AAO received approximately 50,000 
    USCIS is unable to determine how many of these petitioners are 
small businesses. In the past, some large employers have filed hundreds 
of petitions in a single year. Therefore, the number of small entities 
that have filed petitions and subsequently, appeals, is less than 
207,411 and 50,000, respectively. Nevertheless, even assuming that all 
of these petitioners were small entities, economic impact on those 
businesses would not be substantial within the meaning of the 
Regulatory Flexibility Act.
    According to the Bureau of Labor Statistics, the average wage of a 
worker in the United States in 2002 was $36,764. Cost to an employer 
would include benefits, social security, payroll taxes and other items 
not reflected in the wage itself.
    It is reasonable to assume that a small business would be less 
likely to expend resources pursuing appeals or litigating decisions 
regarding lower-paid and less skilled immigrant employees. Accordingly, 
small businesses which choose to file appeals on behalf of immigrant 
employees are likely to do so only for more skilled, and therefore 
higher paid, immigrant employees. Such employees, presumably, would be 
paid in excess of the $36,764 average wage. Thus, the $275 increase in 
fees imposed by this rule would represent well under one percent of the 
total annual wage cost of the employee on whose behalf the pleading was 
filed and would represent an even smaller percentage of the cost of the 
employee's combined salary and benefits.
    Moreover, based upon the appeals received by the AAO, we note that 
the majority of small businesses impacted by this rule would have more 
than one employee; in all probability, a minority of those employees 
would require the filing of one of the pleadings impacted by this rule. 
The overall economic impact of this rule on affected small businesses 
would therefore amount to substantially less than one percent of 
overall payroll and benefit expenses and an even smaller percentage of 
overall revenues.
    Accordingly, the degree of economic impact resulting from this rule 
would not be deemed significant under the Regulatory Flexibility Act. 
Therefore, an analysis of the economic impact on a substantial number 
of small entities under 5 U.S.C. 603 is not required for this rule.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more, a 
major increase of costs or prices, significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based

[[Page 50957]]

companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 12866

    This rule is considered by DHS to be a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), Regulatory Planning 
and Review. Accordingly, this rule has been submitted to the Office of 
Management and Budget (OMB) for review. DHS has assessed both the costs 
and benefits of this rule as required by section 1(b)(6) of Executive 
Order 12866 and has made a determination that, although increasing the 
fee to $385 will increase the cost to the individual applicant and/or 
petitioner, USCIS must establish and collect fees to recover the full 
costs of processing immigration benefit applications, as required by 
the authorizing statute, the INA. The implementation of this rule also 
will provide USCIS with an additional $6.7 million in FY 2005 over the 
fee revenue that would be collected under the current fee structure. If 
USCIS does not adjust the current fees to recover the full costs of 
processing immigration benefit applications, our programs will not be 
fully funded and we will not be able to process applications in a 
timely manner. Thus, the backlog will likely increase. The results of 
the review showed that if the AAO's staffing increased, processing 
times would likely meet the President's mandate regarding backlog 
reduction. The revenue increase is based on USCIS costs and projected 
volumes that were available at the time of this rule.

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, DHS 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, Public Law 104-13, 109 
Stat. 163 (1995), all Departments are required to submit to OMB, for 
review and approval, any reporting or record-keeping requirements 
inherent in a rule. This rule does not impose any new reporting or 
record-keeping requirements under the Paperwork Reduction Act.
    However, it should be noted that USCIS solicited public comments on 
the change of fees in the proposed rule that was published in the 
Federal Register on November 30, 2004. Because the change to the fees 
requires a change to Form I-290B, USCIS submitted a change request to 
OMB indicating the fee change from $110 to $385. OMB has approved 
changes to this form, consistent with the provisions in this final 
rule. The fee change is now reflected on USCIS Form I-290B.

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 amended as follows:


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.

2. In Sec.  103.5(a)(1)(iii), the introductory text is revised to read 
as follows:

Sec.  103.5  Reopening or reconsideration.

    (a) * * *
    (1) * * *
    (iii) Filing Requirements--A motion shall be submitted on Form I-
290B and may be accompanied by a brief. It must be:
* * * * *

3. Section 103.7(b)(1) is amended by:
a. Revising the entry for the form ``I-290B''; and by
b. Revising the fee ``$110'' to read ``$385'' wherever that fee appears 
in the entry for ``Motion.''
    The revision reads as follows:

Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-290B. For filing an appeal from any decision under the 
immigration laws in any type of proceeding over which the Board of 
Immigration Appeals does not have appellate jurisdiction--$385.00 (the 
fee will be the same when an appeal is taken from the denial of a 
petition with one or multiple beneficiaries, provided that they are all 
covered by the same petition, and therefore, the same decision).
* * * * *

    Dated: August 22, 2005.
Michael Chertoff,
[FR Doc. 05-17132 Filed 8-26-05; 8:45 am]