Readjustment of Immigration Benefit Application Fees [68 FR 8989] [FR 17-03]

DOCUMENT NUMBER: FR 17-03

FEDERAL REGISTER CITE: 68 FR 8989

DATE OF PUBLICATION: February 27, 2003

NOTE: All tables for the INSERTS version of this final rule have been removed. To view the table please go to the Federal Register website at:

http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-4747.htm

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 2260-03]

RIN 1115-AH00

Readjustment of Immigration Benefit Application Fees

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: On January 24, 2003, the Immigration and Naturalization Service (Service) published an interim rule in the Federal Register adjusting the immigration benefit application fee schedule by subtracting the applicable amount of surcharges used for asylum and refugee services, fee exemptions and fee waivers. The Service was required to take that action under provisions of section 457 of the Homeland Security Act of 2002, Public Law 107-296. However, Congress has now repealed that section in the Homeland Security Act Amendments of 2003. Accordingly, this rule readjusts the immigration benefit application fee schedule to the levels that existed prior to January 24, 2003. Fees collected from persons filing immigration benefit applications are deposited into the Immigration Examinations Fee Account and recover the cost of processing immigration benefit applications and associated administrative costs and the costs of asylum applications pursuant to law. Federal guidelines require the Service to establish and collect f ees to recover the full costs of processing immigration benefit applications.

DATES: Effective date : This rule is effective February 27, 2003.

Comment date : Written comments must be submitted on or before April 28, 2003. Comments on the interim rule published on January 24, 2003, and comments on this interim rule will be addressed jointly in the final rule.

ADDRESSES: Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street NW., Room 4034, Washington DC 20536. To ensure proper handling, please reference INS Number 2260-03 on your correspondence. You may also submit comments electronically at insregs@usdoj.gov. When submitting comments electronically, you must include INS No. 2257-03 in the subject box so that your comments can be properly routed to the appropriate office. Comments are a vailable for public inspection at the above address by calling (202) 514-3291 to arrange for an appointment.

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) 514-3410.

SUPPLEMENTARY INFORMATION:

Legal Authority To Charge Fees

A. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Acts of 1989 and 1991

As a federal agency, the Immigration and Naturalization Service (Service) long has had statutory authority to charge fees for services provided. e.g., 31 U.S.C. 9701. The Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1989, Pub. L. No. 100-459, § 209, 102 Stat. 2186, 2203 (October 1, 1988), authorized the establishment of the Immigration Examinations Fee Account (IEFA) in the Treasury of the United States. All revenue from fees collected for immigration a nd naturalization benefits are deposited in the IEFA and remain available to provide immigration and naturalization services. 8 U.S.C. 1356(n).

In subsequent legislation, the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-515, § 210(d), 104 Stat. 2101, 2121 (November 5, 1990), Congress further provided that “fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such f ees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.” 8 U.S.C. 1356(m).

The House Conference Report to the bill, entitled “Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending September 30, 1996, and For Other Purposes” H.R. Conf. Rep. No. 104-378, at 82 (1995), directs the Service to fund the cost of the Cuban-Haitian Entrant Program from the IEFA. The Report states “(t)he conferees have also agreed that the activities related to the resettlement of Cubans and Haitians should be transferred to the * * * Service and that the costs of these activities should be supported by the [IEFA].” Id.

In a final rule effective October 13, 1998, (except for the Form N-400, which took effect on January 15, 1999) the Service raised the majority of fees to recover the full costs of processing immigration benefit applications, and added a “surcharge” setting the fees at a level sufficient to fund the processing of asylum and refugee applications as well as those immigration benefit applications processed at no charge to applicants/petitioners. The Service subsequently adjusted the levels of fees in the IEFA, after notice and comment, effective February 19, 2002.

The Impact of Section 457 of the Homeland Security Act on the Fee Structure

In section 457 of the Homeland Security Act of 2002, Congress amended section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) by striking “services, including the costs of similar services provided without charge to asylum applicants or other immigrants.” and inserting “services.”. This amendment effectively repealed the statutory basis for surcharges. Accordingly, the Service reduced the immigration benefit application fees by an average of $50, or 25 percent, for the surcharges applied to the majority of immigration benefit applications (see 68 FR 3798, dated January 24, 2003).

The Impact of the Homeland Security Act Amendments of 2003

In section 107 of Homeland Security Act Amendments of 2003, Congress amended the Homeland Security Act by striking section 457, including the amendment made by such section. As a result, the Service is once again authorized to add a surcharge to immigration benefit applications in order to fund the processing of asylum and refugee applications as well as those immigration benefit applications processed at no charge to applicants/petitioners. Accordingly, the Service is readjusting the immigration benefit ap plication fee schedule by adding in the surcharges that were removed on January 24, 2003, thus restoring the fees to the pre-January 24, 2003, levels. The submission of the reinstated fees reflected in the table below is required for applications submitted on or after February 27, 2003. The Service will accept applications or petitions submitted with the fee that was in effect before the publication of this interim rule, if the application or petition is postmarked on or before February 27, 2003. The follow ing table displays the new immigration benefit application fees.

The Impact of the Homeland Security Act Amendments of 2003 on Current Programs

The statutory amendment restores the funding for the asylum and refugee programs and assures the continued ability of the Service to adjudicate applications for these programs. This amendment also restores funding for the adjudication of other applications for which the Service grants a fee waiver or exemption under the relevant standards, and allows the Service to once again process those applications at no charge to designated applicants and petitioners.

Good Cause Exception

This interim rule is effective on February 27, 2003, although the Service invites post promulgation comments and will address any such comments in a final rule. The Service finds that good cause exists to adopt this rule without the prior notice and comment period and delayed effective date ordinarily required by 5 U.S.C. 553(b) and (d). The Service had set the pre-January 24, 2003, fee levels through a notice and comment rulemaking and this rule simply restores that same fee schedule now that Congress has reinstated the legal authority for the Service to collect fees at these levels.

Since section 107 of the Homeland Security Act Amendments of 2003 is effective upon enactment, and the past hiatus in funding the asylum and fee waiver programs has the potential for causing disruption of those programs, this rule is made effective upon publication. This rule merely restores the preexisting fee structure after a short lapse in statutory authority, and the surcharges set by this rule are needed in order to be able to fund asylum and refugee, fee waiver and exemption, and other humanitarian p rograms. It would be impracticable and contrary to the public interest to make this interim final rule effective 30 days after publication in the Federal Register.

Regulatory Flexibility Act

The Acting Commissioner, Immigration and Naturalization Service, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and by approving it has determined that this rule will not have a significant economic impact on a substantial number of small entities. The majority of applications and petitions are submitted by individuals and not small entities as that term is defined in 5 U.S.C. 601(6).

The Service acknowledges that a number of small entities, particularly those filing business-related applications and petitions, such as Form I-140, Immigrant Petition for Alien Worker; Form I-526, Immigrant Petition by Alien Entrepreneur; and Form I-829, Petition by Entrepreneur to Remove Conditions, may be affected by this rule. For FY 2003, the INS projects approximately 110,000 Forms I-140, 300 Forms I-526, and 200 Forms I-829 will be filed. However, this volume represents petitions filed by a variety o f businesses, ranging from large multi-national corporations to small domestic businesses. The Service does not collect data on the size of the businesses filing petitions, and therefore does not know the number of small businesses that may be affected by this rule. However, even if all of the employers applying for benefits met the definition of small businesses, the resulting degree of economic impact would not require a Regulatory Flexibility Analysis to be performed.