DOCUMENT NUMBER: FR 36-94

FEDERAL REGISTER CITE: 59 FR 30516 - 30520

DATE PUBLISHED: June 14, 1994

BILLING CODE: 4410-01

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1384-92; AG ORDER NO. 1893-94]

RIN 1115-AD18

Adjustment to the Examinations Fee Schedule

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule adjusts the Immigration and Naturalization Service (INS) Examinations Fee schedule. The increases are necessary to generate sufficient revenue to recover the costs of providing adjudication and naturalization services. This rule ensures that funds will be available to continue providing services to users while keeping increases as small as possible.

EFFECTIVE DATE: July 14, 1994.

FOR FURTHER INFORMATION CONTACT: Donald L. Lowry, Staff Accountant, Fee Analysis and Operations Branch, Office of Finance; Immigration and Naturalization Service; 425 I Street, NW.; Room 6240; Washington, DC 20536-0002; telephone 202-616-2754.

SUPPLEMENTARY INFORMATION:

I.     INTRODUCTION

The INS published a proposed rule on January 10, 1994, at 59 FR 1308, to adjust the current Examinations Fee schedule. The proposed rule was initially published with a 30-day comment period. To ensure that the public had ample opportunity to review and comment on the proposed rule, the comment due date was extended from February 9, 1994, to March 11, 1994 (59 FR 5740, 2-8-94).

The fee adjustment is needed to comply with specific Federal immigration laws and the Federal user fee statute and regulations, which require the recipients of special benefits from Government services that are not directed to the public at large to bear the costs to the Government of providing those services. The fees amended in this rule result from an analysis of adjudication and naturalization services and associated costs for fiscal year 1993 and projected costs for fiscal year 1994. The revised fees are calculated to recover the costs of providing these special services and benefits.

Comments were received from 77 commenters, including 46 performing arts organizations, 15 agricultural organizations, 7 employers, 3 attorney organizations, 3 individual attorneys, 2 voluntary service organizations, and 1 member of Congress. The Department carefully considered all comments before preparing this final rule. Following is a discussion of the comments.

II.     SUMMARY OF COMMENTS

A.     Petition for a Nonimmigrant Worker (Form I-129)

Sixty-six commenters, largely performing arts organizations and agricultural organizations, expressed dissatisfaction with the proposed fee schedule for the Petition for a Nonimmigrant Worker (Form I-129). The commenters opposed increasing the minimum fee from $80 ($70 base fee plus $10 fee per beneficiary) to $120 and the per worker fee from $10 to $20. Fifteen of these same commenters questioned the justification for assessing a per-worker fee for petitions with multiple unnamed beneficiaries.

In response to the public's comments, INS is making the following changes: Petitioners with multiple unnamed beneficiaries will no longer be assessed any per worker fee, and the base fee will increase from $70 to $75. The $5 increase is consistent with the general 7.5 percent increase to the current fee schedule, which was discussed in the notice of proposed rule.

On January 11, 1994, INS promulgated a final rule, 59 FR 1455, which allows a worker's dependents to be included in a petitioner's request for an extension of stay or change of status, where there is only one worker in the petition. That provision will go into effect at the time the form providing for this process becomes available. This rule sets a fee of $10 for each dependent included on an extension of stay or change of status request. Dependents of beneficiaries covered by multiple worker petitions must continue to file requests for an extension of stay or change of status on an Application to Extend/Change Nonimmigrant Status (Form I-539).

Accordingly, the new fee structure for the Petition for a Nonimmigrant Worker will be as follows:

Petition with Unnamed Beneficiaries:

- Fee of $75 per petition.

Petition with Named Beneficiaries:

- Base fee of $75 per petition plus either:

    -- $10 per worker if requesting consulate or port-of-entry notification for visa issuance or admission;

    -- $80 per worker if requesting a change of status; or

    -- $50 per worker if requesting an extension of stay. If filing an extension of stay or change of status for one worker, dependents may be included for a fee of $10 per dependent.

Two additional comments related to I-129 processing were received. One commenter stated that the current procedure includes Consulate or port-of-entry notification for visa issuance or admission purposes and the proposed procedure does not discuss this notification. The commenter questioned whether notification would continue. This rule amends only the Examination Fee schedule and does not change existing procedures; as noted above, this notification will continue.

One commenter also questioned the procedural change related to the $10 fee for each dependent of a beneficiary worker. The commenter stated that the beneficiary worker may be transferred to the United States several months in advance of that person's family members and questioned whether this delay between the two dates would present a problem for Consulate or port-of-entry processing.

Again, this rule only sets the fee for dependents included on an extension of stay or change of status request. The final rule promulgated at 59 FR 1455 provides for dependents to be included on a request for an extension of stay or change of status. An original petition is granted solely on behalf of the worker; the consular officer issues visas to dependents separately. Accordingly, the commenter's concerns are unfounded.

B.     Application for Employment Authorization (Form I-765)

One commenter objected to the $10 increase for the employment authorization document (EAD). The commenter stated that EADs for asylum applicants are valid for only 6 months and that it is unfair and unreasonable to require an asylum applicant and dependent family members to pay a $70 fee every 6 months. The commenter suggests that if EAD cards were renewed for a significant period of time, such an increase would not be an unfair burden on the applicant.

The increase in the EAD fee is necessary to recover the costs of adjudicating the application. Under 8 CFR Sec. 208.7, an interim EAD for an asylum applicant may be granted for a period not to exceed 1 year. Although INS has the discretion to grant an EAD for a period of 6 months, most asylum EADs are valid for 1 year.

Consequently, the situation described by the commenter should not arise frequently.

C.     Application to Register Permanent Residence or Adjust Status (Form I-485)

One commenter objected to the $10 increase in fees for filing the I-485 and suggested a family ceiling on the fees charged. The commenter stated that the other costs associated with filing an I-485, such as the required physical examination, make the total costs prohibitive for a family.

The INS recognizes the commenter's concerns. However, it is not possible for INS to set a family ceiling and recover the costs of adjudicating applications through user fees, as required under section 286(m) of the Immigration and Nationality Act (INA). However, the fees for applicants under the age of 14 are $100, an increase of only $5. It should also be noted that fee waivers are available on a case-by-case basis, under 8 CFR Sec. 103.7(c).

D.     Application for Naturalization (N-400) and Application for Certificate of Citizenship (N-600)

One commenter criticized INS for increasing naturalization fees. The commenter opposed the increases stating that the income of many immigrant families is relatively low, that increased rates of naturalization are in our national interest, and that concerns about INS financial management and service delivery have yet to be resolved.

The INS recognizes the commenter's concern. However, as stated above, under section 286(m) of the INA, INS is required to recover the costs of adjudicating naturalization applications through user fees. Alternative revenue sources are not available. Increased naturalization fees are necessary to avoid applicants for other benefits paying higher fees to absorb the costs not recovered through the naturalization fees. In order to recover the costs, the naturalization fees must be increased.

E. Meaningful Opportunity to Comment on the Proposed Rule

One commenter stated that the public has been denied a meaningful opportunity to comment on the proposed rule because the proposed rule did not provide sufficient information to do so. The INS believes that sufficient information was provided in the proposed rule. Under the proposed rule, supporting documentation was available upon request and was provided to commenters who requested it. In addition, the comment period was extended an additional 30 days so that the public would have ample opportunity to fully review and comment on the proposed rule.

F. Indirect Costs Charged to the Examinations Fee Account

One commenter stated that certain functions in the legal proceedings program, such as adversary appearances, are not appropriately charged to the Examinations Fee Account. In 1992, INS performed a comprehensive review of the work that should be properly charged to the INS user fee accounts, and concluded that these legal costs are an appropriate and necessary expense of the adjudication and naturalization service process.

The same commenter stated that the proposed rule did not explain what management and administration (M&A) positions and functions are included in indirect costs, so that the commenter could not determine if they were appropriate. The proposed rule used the term management and administrative (M&A) in a descriptive sense. As commonly used, M&A refers to the costs of providing accounting, budget, personnel, equal employment opportunity, contracting and procurement, and general administration services. The p roposed rule used the example of the costs of mail processing in discussing how the distribution-key concept works in allocating indirect costs among various accounts. From the example and from the general understanding of the term "M&A," INS believes that sufficient information was given to allow a fair opportunity to comment on the appropriateness of charging M&A as indirect costs to the Examinations Fee Account.

G. Proportional Assignment of Indirect Costs to Each Examinations Fee

One commenter stated that INS did not explain why indirect costs are assigned in an "across-the-board" manner, rather than apportioning the indirect costs in the same ratio as the direct cost of the application. Various methods for allocating indirect costs exist; INS considers the current method to be reasonable. As INS continues to refine its fee structure, alternative allocation methodologies will be evaluated.

H. Plan to Improve Service

One commenter stated that the proposed rule did not discuss plans to improve service, such as expansion of INS service centers, elimination of backlogs, and acceleration of processing times.

Improvement efforts have been focused on processing more applications at the service centers and reducing the adjudicative work at the district offices. The expansion of centralized processing at the service centers is expected to result in expedited processing of routine cases. The district offices will retain adjudicative responsibilities for applications necessitating an interview or complex or unique adjudications where personal contact is necessary. The INS expects that staff will be shifted among d istrict offices and service centers based on workload requirements.

Implementation of an automated system at district offices and continued improvement of that system for service center operations is also expected to improve productivity. This automated system, called CLAIMS, integrates many of the manual processes or discrete automated processes that adjudicators use now. The CLAIMS system is currently operational in the four INS service centers; in FY 1994, it will be installed at one district office. Plans for expansion to other sites and continued system enhancements are under constant review and dependent upon funding availability.

I. Fee Basis

One commenter stated that the proposed fees appear to be based on faulty or incomplete data and do not appear to be rationally related to the real work required to process any given application. As discussed in the proposed rule, INS examined the relevant costs of the Examinations Fee Account and computed the percentage revenue increase required to cover the costs, and that percentage, with limited exceptions, was applied to the existing fee schedule.

The INS also considered the feasibility of basing the proposed fees on 1992 costs measurements. The INS rejected this approach because of problems with 1992 data caused by the transition to a more automated system of productivity measurement. At this time, the current fee schedule, with specifically identified adjustments, reflects the best available data on costs, which is consistent with Office of Management and Budget and Department of Justice guidance. Future fee adjustments will reflect efforts to refine direct and indirect cost definitions and measurements.

The same commenter stated that the inclusion of inspection costs was not explained in the proposed rule. The costs of the Inspections program attributed to the Examinations Fee Account are exclusively related to examinations work performed by land border inspectors during periods in which they are not performing inspections. This allocation of adjudication workload to inspectors permits more efficient use of resources and results in reduced costs.