DOCUMENT NUMBER: FR 72-01

FEDERAL REGISTER CITE: 66 FR 65811

DATE OF PUBLICATION: December 21, 2001

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

INS No. 2072-00; AG Order No. 2540-2001

RIN 1115-AF61

Adjustment of Certain Fees of the Immigration Examinations

Fee Account

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule adjusts 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. This rule ensures that the fees will allow the Immigration and Naturalization Service (Service) to process applications and petitions that it expects to receive in fiscal year (FY) 2002 and FY 2003 and to provide funding to other programs that receive IEFA funds.

DATES: This final rule is effective February 19, 2002. Applications or petitions mailed, postmarked, or otherwise filed, on or after this date require the new fee.

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:

I. Introduction

The Service published a proposed rule in the Federal Register on August 8, 2001, at 66 FR 41456, to adjust certain fees of the IEFA. The fee adjustments are necessary to comply with specific federal immigration laws and the federal user fee statute and corresponding regulations and guidance, which require federal agencies to charge a fee for services when such services provide special benefits to recipients that do not accrue to the public at large. The revised fees are calculated to recover the full costs of providing these special benefits. The proposed rule was published with a 60-day comment period, which closed on October 9, 2001. The Service received 467 comments pertaining to the increases to the fees of the IEFA. The final rule implements the fee structure as outlined in the proposed rule, without change. Any applications or petitions mailed, postmarked, or otherwise filed, on or after February 19, 2002 will require the new fee.

Comments were received from a broad spectrum of individuals and organizations, including 5 refugee and immigrant service organizations, 17 public policy and advocacy groups, 5 attorney organizations, 129 past and present adopting parents, and 311 concerned citizens or prospective citizens. All of the comments were carefully considered before preparing this final rule. The following is a discussion of these comments and the Service's response.

II. Summary of Comments

A. Form I-600/600A, Petition To Classify an Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petitions

One hundred and thirty comments were received expressing dissatisfaction with the fee increases associated with Forms I-600 and I-600A, Petition to Classify an Orphan as an Immediate Relative, and the Application for Advance Processing of Orphan Petition,respectively. All 130 comments received were similar in nature. The commenters indicated that these fees discriminated against United States citizens who wished to adopt abandoned children living in orphanages around the world.

For the Service, adjudication of the I-600 and I-600A “orphan petitions” has been a priority. This commitment is established in the regulations at 8 CFR 204.3(a)(2). Specifically, orphan petitions are filed at District Offices and adjudicated by senior District Adjudication Officers. This is due to both the complexity of the international adoption process in general and the process of adjudication required by law and regulation. In addition, because of the sensitivity of international adoptions, handling th ese cases in District Offices by experienced officers allows for personalized customer service.

The Service may be in constant contact with the petitioner throughout the process of a U.S. citizen's effort to adopt a child from abroad. The earliest contact may be a request for information and forms, followed by the filing of the I-600A and the home study. The adjudication of the I-600A petition requires knowledge of state law requirements regarding adoptions, including pre-adoption requirements in certain states, such as counseling. Each petition must be accompanied by a home study, for which there are state requirements as well as federal requirements. Since there is no single national standard, it makes sense to handle these in District Offices that are better able to stay on top of ever-changing state requirements and establish effective local liaisons.

The home study process is complex and often the adjudicator needs to request that additional information be provided in the home study. When the child to be adopted is identified, further information and contact may ensue. Documentation is usually added to the petition as the adoption process progresses. It is not unusual for a case to be with the Service for many months, demanding an intense and protracted level of customer service. There is a great deal of communication in person, telephonically, and in w riting, between the Service, adoption agencies, social workers, prospective adoptive parents, and, often, congressional offices on these cases.

The home study review makes this petition particularly labor-intensive. The adjudicator is tasked with the careful review of the home study, perhaps 10-20 pages long, addressing a number of issues including, any history of abuse and history of arrests. This information is carefully compared against Federal Bureau of Investigation (FBI) fingerprint checks. If necessary, the officer must request and review the arrest dispositions of petitioners with criminal records. When there are discrepancies, the home st udy must be revised or supplemented to include the new information and consider the impact it has on the placement.

The I-600 petition establishes eligibility of a child as an orphan. Adjudication of these petitions requires the Service to determine if the child meets the regulatory definition of an orphan. Accordingly, the adjudicator must develop and maintain a level of expertise in the laws and processes governing adoption in countries from which children are adopted. This assessment may require working with the Department of State or Service offices to verify the validity of documents and interpretation of laws regar ding international adoptions in countries other than the United States.

Finally, the I-600 adjudication also includes an I-604 investigation. The I-604, Request for and Report on Overseas Orphan Investigation, is used to document the investigations that must be completed in every orphan case before the I-600 can be approved. This includes: the child’s birth name, and date/place of birth; where the child lives, and if the child lives at an orphanage or with someone other than the biological parent(s), how and why that placement occurred; the child’s physical and mental condition , and information about any known physical or mental illnesses (e.g. is the child a special needs child); if the child has siblings and, if so, if the child lives with the brothers or sisters; information concerning the child’s biological parents and the determination that the child is an orphan because he/she has a “remaining parent”, “sole parent” or “surviving parent” (as defined in the regulations); and any other pertinent facts that the investigation uncovers. The purpose of the investigation is to ver ify that the child is an orphan, address specific concerns articulated by the adjudicating officer or consular officer that can only be resolved by an investigation, and resolve significant differences between the facts presented in the advanced processing application (Form I-600A or an I-600 approved by an INS office in the United States). The investigation is conducted at the overseas visa-issuing post by INS, or by the Department of State if there is no INS office at that U.S. Embassy or Consulate. An I- 604 investigation often entails travel to a remote location to establish whether or not a child is actually an orphan. In many countries, a field investigation may require 2 or 3 days away from the office. Not every case requires a field investigation, however, a certain percentage of cases must have one, if only as an auditing tool.

Since the Service relies on fees to recover the full cost of processing immigration and naturalization benefits, the increase in fees for the I-600 and I-600A to $460 is necessary to recover the full costs associated with processing orphan petitions. Accordingly, the Service will charge a fee of $460 for processing Forms I-600 and I-600A.

B. How Will INS Improve Service?

One hundred and twenty-three comments were received opposing the increase in the fees given the current level of services provided by the Service. Many people noted the lengthy waiting times to process their benefit applications as well as the need to improve overall customer service.

Although the Service has made significant progress in improving productivity in the areas of naturalization and adjustment of status applications over the last few years, the Service continues to work toward improving efficiencies in all aspects of its service. At his confirmation hearing before the Senate Judiciary Committee, Commissioner James W. Ziglar clearly stated his commitment to improving customer service:

If I am confirmed for this position, my primary goal will be to insure that every person who comes into contact with the Immigration and Naturalization Service (INS), regardless of their citizenship, the circumstances of their birth or any other distinguishing characteristic, and regardless of the circumstances under which they find themselves within the ambit of the INS, will be treated with respect and dignity, and without any hint of bias or discrimination. The first impression is a lasting impression an d we have only one opportunity to make a first impression--the first impression of America should be that of a compassionate, caring, and open nation of opportunity.

The Service is committed to building and maintaining an immigration services system that provides immigration information and benefits in a timely, accurate, consistent, courteous, and professional manner. To support this commitment, the Service has developed a plan to eliminate backlogs and obtain a 6-month processing time standard for all applications and petitions. The plan outlines an aggressive 5-year strategy to reduce the backlogs. By the end of FY 2003, the Service expects to reach a national averag e processing time of 6 months or less for all applications and petitions. By the end of FY 2004, the Service intends to reduce the processing times to 6 months or less at every Service office. The Service will use the remaining 2 years to continue improving the infrastructure to ensure that backlogs do not recur in the future. The Service is committed to improve the current information technology and business processes to eliminate all backlogs.

To achieve these results, the Service will: (1) Set backlog reduction milestones by application for every office, (2) assign staffing resources to offices based on a comprehensive workload analysis, (3) monitor office accomplishments of the backlog reduction milestones, and (4) establish performance incentives for individual offices to meet and exceed the backlog reduction milestones.

The Service is applying a $5 surcharge to each application and petition to recover information technology and quality assurance costs associated with application processing. These costs were not included previously. The Service believes that this approach will ensure the resources necessary to support streamlined business processes, including on-line filing and case status inquiry via telephone or on-line; and expand quality assurance efforts to ensure the accurate and consistent adjudication of benefits.

It is also important to note that restructuring of the Service will result in improved services by clearly separating its conflicting missions of service and enforcement, clarifying its priorities, and ensuring adequate resources to carry out its mission.

C. Why INS Believes the Fee Increases Are Reasonable

One hundred and forty-nine comments stated that the fee increase was either too high or too burdensome on those applying for immigration and naturalization benefits. Many commenters noted that the Service only recently increased the majority of fees.

The Service is increasing fees by an average of $20 per application/petition, or 17 percent. The current fees, which were most recently increased in 1998, were based on a fee review that began in 1996 and was completed in 1997. Those fee levels reflected costs in 1997.

Other than the $5 per application surcharge for quality assurance and information technology, the fee schedule is based solely on the recovery of costs for general cost-of-living increases since 1997, not from the period in which the fees were implemented. Bearing this in mind, the increase in fees on an annual basis equates to a less than 4 percent average increase. In this context, the Service believes the fee increases are reasonable.

With regard to the fingerprint fee, this is the first time the fee was ever reviewed for the purpose of full cost recovery. As stated in the proposed rule, Congress directed the Service to implement changes to its fingerprint process in a short timeframe. To the extent that the revised fee may be viewed by some as a significant increase over the current fee, such an increase is both necessary and justified in an effort to recover the full cost of providing the service in accordance with applicable fee setti ng laws, regulations, and guidance.

The Service does have the ability to waive fees on a case-by-case basis. Any applicant or petitioner who has an inability to pay the fees may request a fee waiver from either a District or Service Center Director depending on where the petition/application is to be filed. Service regulations at 8 CFR 103.7(c) concerning the granting of fee waivers is posted on the Service Web site at www.ins.usdoj.gov.

D. Why INS Is Raising the Fees Instead of Seeking Additional Sources of Funding

Thirty-eight of the commenters encouraged the Service to seek additional sources of funding from Congress instead of relying solely on fees. From FY 1989 to FY 1998, the fees collected and deposited into the IEFA have been the sole source of funding for immigration and naturalization benefits. In creating the IEFA, Congress intended that the activities supported by this account be self-sustaining, and not be funded by tax dollars (P.L. 100-459). The Service has been managing this account consistent with fed eral law and congressional direction. In the past, however, fees did not recover the full costs of processing applications and petitions. In an effort to eliminate the backlog this created, Congress provided additional appropriated resources. With this support, the Service dramatically improved productivity for naturalization and adjustment of status benefit applications.

The President included $100 million in the FY 2002 budget request as the first installment of a multi-year effort to support elimination of backlogs and overall improvements in service. The funding sources for the $100 million installment are $20 million from the Premium Processing fee and $80 million in appropriations. In contrast to the new fees that will recover the full costs of processing newly filed immigration benefit applications, the $100 million budget request will provide funding for reduction an d elimination of the current backlog of immigration benefit applications. The Service will use this supplemental funding for the backlog elimination plan primarily to finance the costs of term staffing increases. Without this additional staff, the Service cannot process enough immigration benefit applications to meet the processing time goals and backlog reduction milestones. The Service will also use this supplemental funding to recover the costs to develop a performance incentives program for all Service offices.

E. How Will INS Provide Consistent Service?

Five of the commenters opposed increasing fees when service varies so greatly from office to office. The Service recognizes the need for a consistent level of service among offices. As previously stated, the Service’s backlog elimination plan includes a two-step effort to achieve processing time goals for all immigration benefit applications. In the first step, the Service will reduce national average processing times to 6 months or less by the end of FY 2003. In the second step, the Service will achieve t he processing time goals of 6 months or less in every Service office by the end of FY 2004. This fee schedule will begin to bring consistency of processing at all field offices, as well as ensure that backlogs do not recur in the future.