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< Back to current issue of Immigration Daily

[Federal Register Volume 76, Number 234 (Tuesday, December 6, 2011)]
[Rules and Regulations]
[Pages 76032-76035]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31175]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 22

[Public Notice 7706]
RIN 1400-AC57


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

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule adopts without change the interim final rule 
published in the Federal Register, 75 FR 28188, on May 20, 2010 (Public 
Notice 7018). Specifically, the rule proposed changes to the Schedule 
of Fees for Consular Services (Schedule) for nonimmigrant visa and 
border crossing card application processing fees. This rulemaking 
adopts as final the change from $131 to $140 for the fee charged for 
the processing of an application for most non-petition-based 
nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border 
Crossing Cards (BCCs). The rule also provides new tiers of the 
application fee for certain categories of petition-based nonimmigrant 
visas and treaty trader and investor visas. Finally, the rule adopts as 
final the increase in the BCC fee charged to Mexican citizens under age 
15 who apply in Mexico, and whose parent or guardian already has a BCC 
or is applying for one, from $13 to $14. This latter change results 
from a congressionally mandated surcharge that went into effect in 
2009.
    The Department of State is adjusting the fees to ensure that 
sufficient resources are available to meet the costs of providing 
consular services in light of an independent cost of service study's 
findings that the U.S. Government is not fully covering its costs for 
the processing of these visas under the current cost structure. The 
Department endeavors to recover the cost of providing services that 
benefit specific individuals, as opposed to the general public. See OMB 
Circular A-25, section 6(a)(1), (a)(2)(a). For this reason, the 
Department has adjusted the Schedule.

DATES:  Effective Date: This rule is effective December 6, 2011.

FOR FURTHER INFORMATION CONTACT: Polly Hill, Office of the Comptroller, 
Bureau of Consular Affairs, Department of State; phone: (202) 663-1301, 
telefax: (202) 663-2599; email: fees@state.gov.

SUPPLEMENTARY INFORMATION: 

Background

    For the complete explanation of the background of this rule, 
including the rationale for it, the Department's authority to make the 
fee changes in question, and an explanation of the CoSM that produced 
the fee amounts, consult the prior public notices: 75 FR 66076 (Dec. 
14, 2009); 75 FR 14111 (Mar. 24, 2010); and 75 FR 28188 (May 20, 2010).
    The Department published a proposed rule in the Federal Register, 
74 FR 66076, on December 14, 2009, proposing to amend 22 CFR 22.1. 
Specifically, the rule proposed changes to the Schedule of Fees for 
Consular Services for nonimmigrant visa and border crossing card 
application processing fees, and provided 60 days for comments from the 
public. In response to requests by the public for more information and 
a further opportunity to submit comments, the Department published a 
supplementary notice in the Federal Register, 75 FR 14111, on March 24, 
2010. The supplementary notice provided a more detailed explanation of 
the CoSM, the activity-based costing model that the Department used to 
determine the proposed fees for consular services, and reopened the 
comment period for an additional 15 days. During this and the previous 
60-day comment period, 81 comments were received, either by email or 
through the submission process at www.regulations.gov. The Department 
analyzed these 81 comments in the interim final rule at 75 FR 28188, 
28190-82, and does not reproduce that analysis here. Instead, the 
current notice addresses only the additional comments received in the 
further 60 days during which the comment period for this interim final 
rule was open. In total, the public has been given 135 days to comment 
on this change to the Schedule of Fees.
    This rule establishes the following fees for these categories 
corresponding to projected cost figures for the visa category as 
determined by the CoSM. These fees incorporate the $1 Wilberforce 
surcharge that must be added to all nonimmigrant MRVs, see Public Law 
110-457, Title II, Sec.  239(a):

--H, L, O, P, Q, and R: $150;
--E: $390; and
--K: $350.

    The Department rounded these fees to the nearest $10 for the ease 
of converting to foreign currencies, which

[[Page 76033]]

are most often used to pay the fee. The additional revenue resulting 
from this rounding will be used to cover the costs of Global Support 
Strategy (GSS) services.

Analysis of Comments

    The proposed rule was published for comment on December 14, 2009. 
During the comment period, which initially closed February 12, 2010 and 
was subsequently extended until April 8, 2010, the Department received 
81 comments. For an analysis of those comments, please see the interim 
final rule in the Federal Register, 75 FR 14111, published May 20, 2010 
(Public Notice 7018).
    The Department published the interim final rule on May 20, 2010, 
and reopened the comment period for an additional 60 days. During that 
comment period, which closed on July 19, 2010, the Department received 
an additional nine comments. The following analysis addresses these 
nine comments. Of the nine, three were in support of the increase. 
Reasons for support included endorsement of the fee changes as 
necessary to allow the Department to meet its budget.
    Two comments criticized the increased K-category fianc[eacute](e) 
visa fee, arguing that the increase in the K visa fee will make it more 
difficult for U.S. citizens to bring their loved ones to the United 
States. While the Department appreciates the financial difficulties 
that increased fees can create, it has determined that it must recover 
the cost of providing the service. The Department is adjusting the fee 
for K-category fianc[eacute](e) visas from $131 to $350 specifically 
because adjudicating the K visa requires a review of extensive 
documentation and a more in-depth interview of the applicant than other 
categories of Machine Readable Visas (MRVs). Rather than setting a 
single MRV fee applicable to all MRVs regardless of category as was 
done in the past, the Department has concluded that it will be more 
equitable to set the fee for each MRV category at a level commensurate 
with the average cost of producing that particular product. The more 
extensive K visa processing procedure requires pre-processing of the 
case at the National Visa Center, where the petition is received from 
the Department of Homeland Security (DHS), packaged, and assigned to 
the appropriate embassy or consulate. K visa processing also requires 
intake and review of materials not required by some other categories of 
nonimmigrant visas, such as the I-134 affidavit of support and the DS-
2054 medical examination report. See 75 FR 14111, 14113 (discussing 
some of the extra steps needed to process a K visa).
    The higher incidence of fraud in K visa applications also requires, 
in many cases, a more extensive fraud investigation than is necessary 
for some other types of visa. Indeed, the Department of State's 
processing of K visas is almost identical to that required for a 
family-based immigrant visa, so it follows that the costs of K visa 
processing are similar to those for immigrant visas. Spouses, children, 
and parents applying for immigrant visas to the United States currently 
pay the Department of State a $330 application processing fee as well 
as a $74 immigrant visa security surcharge, Items 32 and 36 on the 
Schedule of Fees.
    The Department received three comments from the same commenter 
concerning instances in which specific subsets of E-category or H-
category visas appear to the commenter to require simpler processing, 
and suggesting that those subsets should pay lower fees than standard E 
and H applicants. The Department decided to charge a higher fee for 
visa categories that require more complex processing, seeing this as a 
more equitable solution than spreading the additional cost to produce 
certain visa categories (H, L, O, P, Q, R, E, and K) across all visa 
categories. The commenter appears not to challenge this decision as 
concerns tiered fees for visa categories more broadly. He argued, 
however, that there is no reason to charge more than $140--the base MRV 
fee--to Singaporean and Chilean H-1B1 visa applicants; such applicants, 
if approved, qualify for non-petition-based visas to work in a 
specialty occupation under legislation implementing treaties between 
the United States and those countries. The commenter made a similar 
argument with respect to E-3 visas issued to Australian applicants 
pursuant to legislation that authorizes non-petition based visas for 
Australians to work in a specialty occupation; he argued that E-3s 
should cost the same as H-1B1 visas for Singaporean and Chilean 
applicants and thus have the same fee. Another commenter suggested that 
the costs of processing E visas for spouses and children must be less 
than for principal applicants, and that therefore these derivative 
applicants should be charged a lower fee.
    Yet as the proposed and interim final rules explained, the CoSM 
showed that some categories of visa require more time and resources to 
process than others. On average, H-category visas require the 
Department to perform a number of additional tasks and processes beyond 
those that are necessary for producing a BCC or other MRV, including 
review of extensive documentation and a more in-depth interview of the 
applicant. E-category visas require considerably more tasks on average 
than H-category visas and most other MRV categories. The Department has 
previously explained that, because E-3 visas are not petition-based 
when issued overseas, they require the Department of State visa 
adjudicator to both determine whether the employment falls under the E-
3 program (similar to the work DHS performs in adjudicating a 
petition), and assess the eligibility of the applicant; this process is 
more like that required for other E visas than the process for most H 
visas, for which DHS has already adjudicated a petition. See 75 FR 
28188, 28191.
    In addition, the fees established by this rule are based on unit 
costs--global average costs for service types as a whole. The most 
recent CoSM, on which the new Schedule of Fees is based, improved 
substantially upon prior cost of service models by identifying unit 
costs not just for nonimmigrant visas as a whole, but for specific visa 
classes that involved more work (e.g., H, E, K, etc.). This CoSM did 
not, however, distinguish between subcategories of visas (e.g., E-1 
versus E-3; H versus H-1B1). Instead, the cost model averaged together 
the cost of processing all subcategories of a particular type of visa. 
Admittedly, the amount of resources required to adjudicate individual 
applicants can vary significantly from case to case. As an example, a 
B1/B2 applicant could be a individual with a long history of good 
travel to the United States, and the adjudication could be made in just 
minutes; a different B1/B2 applicant could, however, be seeking to 
travel to the United States for extensive medical care over a period of 
years, which would require the officer to spend much more time 
considering the case before making a decision. The Department does not, 
however, charge these applicants different fees based on the time 
spent. The cost of the more time-consuming case and the cost of the 
less time-consuming case are both taken into account in determining an 
average unit cost for the visa category. In the same vein, the time 
spent adjudicating a principal applicant for an E-1 visa generally will 
take more time than that required to adjudicate that applicant's minor, 
accompanying children; the application fee charged to those applicants 
is based on a unit cost that takes into account both the higher-cost 
and the lower-cost processing. The Government Accountability Office

[[Page 76034]]

(GAO) has noted that government agencies should define the classes of 
persons subject to their fees by the ``smallest unit that is 
practical.'' GAO, 3 Principles of Federal Appropriations Law (3d ed. 
2008) 12-161 (citing Electronic Industries Ass'n v. FCC, 554 F. 2d 
1109, 1116 (DC Cir. 1976)). The Department determined that establishing 
four separate tiers of fees in this latest Schedule, based on visa 
category, was equitable and practical. The Department will explore the 
practicability of expanding in a future fee schedule the number of 
separate unit costs examined in the CoSM to the visa subcategory level, 
while keeping in mind the need to balance the administrative burden 
with the potential benefit to applicants.
    A comment submitted jointly by United Airlines, Inc., and the U.S. 
Travel Association expressed concerns about how the CoSM ensured that 
administrative support costs were correctly attributed to individual 
consular services, and urged that costs for positions not dedicated to 
fee-based consular activities be excluded from the CoSM. As previously 
stated, to address the sharing and allocation of administrative support 
costs at embassies and consulates, the Department uses the 
International Cooperative Administrative Support Services (ICASS). The 
CoSM includes not all Department of State ICASS costs, but rather only 
the share of those costs equal to the share of consular ``desks'' at 
all embassies and consulates. The consular share of ICASS costs was 
then assigned within the model to all overseas services. While the 
Department will continue to endeavor to assign and allocate costs in 
the most accurate manner possible, its CoSM includes all costs for 
consular services--whether a fee is charged for those services or not. 
The Department will review, and continuously seek to keep accurate, the 
calculations used for allocating ICASS costs to specific service types.

Regulatory Findings

Administrative Procedure Act

    The provisions of 5 U.S.C. 553 and 554 have been followed through 
the course of this rule making, and the Department cannot identify any 
adverse impact on the conduct of foreign affairs from the use of these 
procedures. This final rule is effective upon publication. This rule 
was previously published as an interim final rule on May 20, 2010, with 
an effective date 15 days from the date of that publication (i.e., on 
June 4, 2010). The Department provided ``good cause'' justification at 
that time under 5 U.S.C. 553(d)(3). See 75 F.R. at 28192-28193.

Regulatory Flexibility Act

    This rulemaking is subject to the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq; however, no action is required under this Act. The 
Department has reviewed this rule and, by approving it, certifies that 
it will not have a significant economic impact on a substantial number 
of small entities as defined in 5 U.S.C. 601(6). This rule raises the 
application processing fee for nonimmigrant visas. Although the 
issuance of some of these visas is contingent upon approval by DHS of a 
petition filed by a U.S. company with DHS, and these companies pay a 
fee to DHS to cover the processing of the petition, the visa itself is 
sought and paid for by an individual foreign national overseas who 
seeks to come to the United States for a temporary stay. The amount of 
the petition fees that are paid by small entities to DHS is not 
controlled by the amount of the visa fees paid by individuals to the 
Department of State. While small entities may be required to cover or 
reimburse employees for application fees, the exact number of such 
entities that does so is unknown. Given that the increase in petition 
fees accounts for only 7 percent of the total percentage of visa fee 
increases, the modest 15 percent increase in the application fee for 
employment-based nonimmigrant visas is not likely to have a significant 
economic impact on the small entities that choose to reimburse the 
applicant for the visa fee.

Unfunded Mandates Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804(2). This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices 
for consumers, individual industries, federal, state, or local 
government agencies, or geographic regions; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

Executive Order 12866

    OMB considers this rule to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review, September 30, 1993. Accordingly, this rule was submitted to OMB 
for review. This rule is necessary in light of the Department of 
State's CoSM finding that the cost of processing nonimmigrant visas has 
increased since the fee was last set in 2007. The Department is setting 
the nonimmigrant visa fees in accordance with 31 U.S.C. 9701 and other 
applicable legal authority, as described in detail in other notices 
associated with this rulemaking (RIN 1400-AC57). See, e.g., 31 U.S.C. 
9701(b)(2)(A) (agency head may prescribe regulations establishing 
charge for service or thing of value provided by agency based on, inter 
alia, costs to Government). This regulation sets the fees for 
nonimmigrant visas at the amount required to recover the costs 
associated with providing this service to foreign nationals.

Executive Order 13563

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

Executive Orders 12372 and 13132

    This 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, it is determined that this rule does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement. The 
regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on federal programs and activities do 
not apply to this rule.

Executive Order 13175

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

[[Page 76035]]

Order 13175 do not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose any new or modify any existing reporting 
or recordkeeping requirements subject to the Paperwork Reduction Act, 
44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 22

    Consular services, fees, passports and visas.

    Accordingly, for the reasons stated in the preamble, 22 CFR part 22 
is amended as follows:

PART 22--[AMENDED]

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

    Authority:  8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 
1351 note, 1713, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 
note; 22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 
4219, 6551; 31 U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957); 
Exec. Order 11,295, 31 FR 10603 (1966).


0
2. Revise Sec.  22.1 Item 21 to read as follows:


Sec.  22.1  Schedule of fees.

* * * * *

                 Schedule of Fees for Consular Services
------------------------------------------------------------------------
                           Item No.                               Fee
------------------------------------------------------------------------
 
                              * * * * * * *
                       Nonimmigrant Visa Services
------------------------------------------------------------------------
21. Nonimmigrant visa and border crossing card application
 processing fees (per person):
    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)...............................................
    (b) H, L, O, P, Q and R category nonimmigrant visa.......       $150
    (c) E category nonimmigrant visa.........................       $390
    (d) K category nonimmigrant visa.........................       $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years)..................................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying for a
     border crossing card (valid 10 years or until the
     applicant reaches age 15, whichever is sooner)..........
 
                              * * * * * * *
------------------------------------------------------------------------


    Dated: August 9, 2011.
Patrick F. Kennedy,
Under Secretary of State for Management, Department of State.
[FR Doc. 2011-31175 Filed 12-5-11; 8:45 am]
BILLING CODE 4710-06-P



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