[Federal Register: May 17, 2011 (Volume 76, Number 95)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Rules and Regulations
This section of the FEDERAL REGISTER contains regulatory documents
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 204
[CIS No. 2502-11, DHS Docket No. USCIS-2011-0002]
Requiring Residents Who Live Outside the United States To File
Petitions According to Form Instructions
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule with a request for comments.
SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to establish the location where a Petition for Alien
Relative, Form I-130, or a Petition for Amerasian, Widow(er), or
Special Immigrant, Form I-360, may be filed, accepted, processed and
approved through form instructions. DHS is promulgating this rule to
reduce DHS costs by reducing filings of a Petition for Alien Relative
at non-U.S. Citizenship and Immigration Services (USCIS) international
locations, such as United States consulates and embassies, and to
increase USCIS's flexibility in administering this program. DHS is
removing references to offices, form numbers, approval authorities, and
internal procedures from the regulation.
DATES: Effective date: This rule is effective on August 15, 2011,
Comment period: Written comments must be submitted on or before
July 18, 2011.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2011-0002 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Sunday Aigbe, Chief, Regulatory Products Division,
Office of the Executive Secretariat, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 20 Massachusetts Avenue,
NW., Suite 5012, Washington, DC 20529-2020. To ensure proper handling,
please reference DHS Docket No. USCIS-2011-0002 on your correspondence.
This mailing address may also be used for paper, disk, or CD-ROM
Hand Delivery/Courier: Sunday Aigbe, Chief Regulatory
Products Division, Office of the Executive Secretariat, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 20529-2020.
Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Adam Klein, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Suite 1100,
Washington, DC 20529-2020. Contact Telephone Number (202) 272-1474.
I. Public Participation
All interested parties are invited to participate in this
rulemaking by submitting written data, views, or arguments on all
aspects of this final rule. To provide the most assistance to USCIS
comments should refer to a specific portion of the final rule, explain
the reason for any recommended change, and include data, information,
or authority that support that recommended change.
Instructions: All submissions must include the agency name and DHS
Docket No. USCIS-2011-0002 for this rulemaking. All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
DHS is removing regulatory restrictions on where a Petition for
Alien Relative, Form I-130, and a Petition for Amerasian, Widow(er), or
Special Immigrant, Form I-360, on behalf of a widow or widower may be
filed, as well as any prescription of the location or jurisdiction of
the U.S. Citizenship and Immigration Services (USCIS) or the U.S.
Department of State (DOS) with regard to the acceptance, processing,
and approval of those petitions. A relative petition is used for a
citizen or lawful permanent resident (LPR) of the United States to
establish the relationship to certain alien relatives who wish to
immigrate to the United States. A Petition for Amerasian, Widow(er), or
Special Immigrant is used by an Amerasian, widow(er), or special
immigrant to classify an alien as such where the alien wishes to
immigrate to the United States. After approval of either petition, the
eligible family member or alien may apply for an immigrant visa or for
adjustment of status to that of an LPR once a visa number becomes
available. See Immigration and Nationality Act, as amended (INA),
section 203, 245(a), 8 U.S.C. 1153 and 1255(a); 22 CFR 42.41; 8 CFR
245.1(a). No changes are made to regulations pertaining to the
eligibility of alien relatives to immigrate to the United States.
III. Reason for This Change
DHS regulations currently provide that certain petitioners residing
in countries where USCIS does not have an international office may file
a relative petition or petition by a widow or widower at a U.S.
consulate abroad and that these petitions may be accepted and approved
by a consular officer. See 8 CFR 204.1(e). DHS is amending the
regulations to require that all petitioners who reside outside the
United States file a relative petition or petition by a widow or
widower according to the form instructions. See new 8 CFR 204.1(b).
USCIS will amend the form instructions for relative petitions
concurrently with this rulemaking to provide the option of either
mailing the petition to the USCIS Chicago Lockbox, or filing at the
USCIS international office if the petitioner resides in a country where
USCIS has an office. USCIS will not be amending form instructions
relative to a petition by a widow or widowers at this time. USCIS may
change these form instructions in the future as the USCIS
transformation progresses or as necessary to shift filings among USCIS
offices for processing efficiency.
This rule represents another step DHS is taking to remove
unnecessary internal USCIS procedures from regulations and to
transition toward an electronic environment and away from the filing in
a paper-based environment. See Removing References to Filing Locations
and Obsolete References to Legacy Immigration and Naturalization
Service; Adding a Provision To Facilitate the Expansion of the Use of
Approved Electronic Equivalents of Paper Forms, 74 FR 26933 (June 5,
2009). Further, USCIS is modernizing its processes and systems to
accommodate and encourage greater use of electronic data submission,
including e-filing and electronic interaction. Regulations that
prescribe filing locations and adjudicative jurisdictions undermine
this transformation process, and this rule will help alleviate that
DHS will achieve cost-savings by changing the location of filing
Petitions for Alien Relatives. The current practice of requiring or
permitting petitioners who live outside the United States to file a
relative petition at DOS consular offices is inefficient and requires
reimbursement. USCIS has reached an agreement, as required by law, with
the DOS Consular Service for the provision of lockbox and receipting
services and must reimburse DOS for the costs of those services. See 31
U.S.C. 1535. USCIS is able to receive these petitions at a lower cost
than DOS charges USCIS.
USCIS cannot realize these cost savings until the regulations
eliminate the option of filing with DOS consular offices by petitioners
who live outside the United States. See 8 CFR 204.1(e). This final rule
removes those filing provisions. This change will reduce
inefficiencies, improve the ability of USCIS to manage its workload,
and reduce the burden on DOS. After this rule takes effect, petitioners
residing outside of the United States will file their petitions as
directed by the form instructions. USCIS will alter its form
instructions to provide for the filing of Petition for Alien Relative
with the in-country USCIS office or by mail to a lockbox in the United
States if there is no in-country USCIS office. Filing locations and
procedures will remain available on USCIS forms and the USCIS Web site.
Customer service will remain available where USCIS has an international
presence and through email. Internal USCIS procedures will govern who
accepts, adjudicates, and approves petitions.
DHS is revising 8 CFR 204.1 to remove paragraphs (c), (d), and (e),
and revising paragraph (b) to cross reference 8 CFR 103.2. New 8 CFR
204.1(b). DHS is removing current paragraphs (c), (d), and (e), because
they are redundant with 8 CFR 103.2 and contain unnecessary internal
procedures. DHS is making those revisions to standardize what is
considered proper filing among all benefit types, and increase
flexibility by removing form numbers, form titles, USCIS and DHS job
titles, specific duties assigned to personnel, and internal operational
procedures. DHS is systematically removing references to form numbers
and form titles in all USCIS regulations. Mandating a specific form
number reduces USCIS's flexibility to modify its business processes to
change filing procedures.
By removing 8 CFR 204.1(e) DHS is also removing the requirement in
that section that a self-petitioning spouse or child of an abusive
United States citizen or lawful permanent resident file the petition
with a USCIS office in the United States. Nevertheless, DHS is making
no substantive changes in this rule that affect potential filers of
either alien relative or widow(er) petitions. USCIS may change the
Petition for Amerasian, Widow(er) or Special Immigrant in the future
after complying with the applicable public notice requirements and
obtaining Office of Management and Budget (OMB) approval.
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (APA) requires DHS to provide
public notice and seek public comment on regulations with limited
exceptions, including ``* * * rules of agency organization, procedure
or practice.'' 5 U.S.C. 553(b)(A). Under this rule, USCIS will no
longer accept hand delivery of petitions at a United States consulate
by DOS officers. International postal or delivery costs may slightly
increase filing expenses for a relative petition filed by some
individuals residing outside the United States. These minor changes,
however, do not substantially affect a substantive right. See, e.g.,
James V. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (DC Cir.
2000) (``[A]n otherwise-procedural rule does not become a substantive
one, for notice-and-comment purposes, simply because it imposes a
burden on regulated parties.''); see also JEM Broad. Co. v. FCC, 22
F.3d 320, 326 (DC Cir. 1994). Nonetheless, DHS believes that public
input may be valuable and invites the public to comment on this change.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) mandates that DHS conduct a
regulatory flexibility analysis when it publishes any general notice of
proposed rulemaking. 5 U.S.C. 603(a). RFA analysis is not required when
a rule is exempt from notice and comment rulemaking. DHS has determined
that this rule is exempt from the notice-and-comment requirements in 5
U.S.C. 553(a), and, therefore, a regulatory flexibility analysis is not
required. This procedural rule will impact only individuals, not small
entities as defined by the Regulatory Flexibility Act.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in 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
D. 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 Fairness Act of 1996. This rule
will not result in an annual effect of $100 million or more on the
economy; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
E. Executive Order 12866 and Executive Order 13563
DHS does not consider this rule to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, as supplemented by Executive Order 13563. Accordingly, this
rule has not been submitted to the OMB for review. DHS has considered
the benefits and costs associated with the changes made in this rule
and has determined that the benefits justify the potential costs.
DHS is taking this action to increase operational efficiency and to
control USCIS costs for processing relative petitions. In fiscal year
(FY) 2010, a total of 697,162 relative petitions were processed by
USCIS, 8,135 of them by USCIS international offices. In that same year,
DOS accepted and processed 9,497 relative petitions in countries where
USCIS has no overseas office and 6,576 in countries where USCIS is
located.\1\ In FY 2010, DOS began charging USCIS for services rendered
in accepting or processing relative petitions. As a fee-funded agency,
USCIS is statutorily authorized to collect fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including administrative costs and services
provided without charge to certain applicants and petitioners. See INA
section 286(m), 8 U.S.C. 1356(m). The current fee of $420 for a
relative petition does not cover the DOS charges. Therefore, DHS will
adjust its internal processes to avoid the DOS charge, thereby
maintaining the integrity of the current fee schedule for relative
\1\ It is not always clear to what extent DOS processes each
alien relative petition from examining the volume data. In some
cases, DOS is able to fully adjudicate and process the petition,
while more complex adjudicative cases are forwarded to USCIS for
processing and decision. Thus, DHS is hesitant to draw statistical
comparisons between DOS and DHS processing data, especially in cases
where there is a USCIS international office.
Instructions for filing relative petitions will be amended
concurrently with this final rule. Instructions for filing relative
petitions will provide the option of either mailing the petition to the
USCIS Chicago Lockbox, or filing at the USCIS international office if
the petitioner resides in a country where USCIS has an office.
Depending upon the unique circumstances of the United States citizen or
lawful permanent resident petitioner, this rule could result in a cost
savings or additional burden to the petitioner. Travel costs and
mailing costs vary widely among individual petitioners. Thus, DHS
cannot precisely estimate the costs or savings impacts of the rule. For
example, when a petitioner resides in a country with no USCIS presence,
the rule could provide a cost savings if mailing the petition is less
expensive than the cost of traveling to the nearest DOS office, or vice
versa. DHS believes that the benefits of streamlining USCIS operations
in processing alien relative petitions to avoid DOS charges justifies
the potential cost impact on petitioners residing in international
F. 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.
G. 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.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), DHS submits to OMB
for review and approval any reporting or recordkeeping requirements
inherent in a regulatory action. 44 U.S.C. 3506. The information
collection burden for the Petition for Alien Relative has been approved
by OMB and assigned OMB control number 1615-0012. This rule does not
impose any new reporting or recordkeeping requirements under the PRA.
However, USCIS is making minor changes to the Petition for Alien
Relative (Form I-130) instructions to instruct petitioners about where
to file. Accordingly, USCIS will submit a Correction Worksheet, Form
OMB 83-C, and amended instructions to OMB for review and approval in
accordance with the PRA.
List of Subjects in 8 CFR Part 204
Administrative practice and procedures, Immigration, Reporting and
Accordingly, DHS is amending part 204 of chapter I of title 8 of
the Code of Federal Regulations as follows:
PART 204--IMMIGRANT PETITIONS
1. 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.
Subpart A--Immigrant Visa Petitions
2. Section 204.1 is amended by revising paragraph (b) and removing and
reserving paragraphs (c), (d), and (e).
The revision reads as follows:
Sec. 204.1 General information about immediate relative and family-
* * * * *
(b) Proper filing. A petition for alien relative and a petition for
Amerasian, widow(er), or special immigrant must be filed on the form
prescribed by USCIS in accordance with the form instructions, and will
be considered properly filed when the petition is filed in accordance
with 8 CFR 103.2. The filing date of a petition is the date it is
properly filed and received by USCIS. That date will constitute the
* * * * *
[FR Doc. 2011-11997 Filed 5-16-11; 8:45 am]
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