Supporting Regulations

Friday,
September 24, 2010

Part IV

Department of
Homeland Security

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8 CFR Parts 103, 204, 244 et al.
U.S. Citizenship and Immigration Services
Fee Schedule; Final Rule

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 204, 244, and 274A
[CIS No. 2490–09, DHS Docket No. USCIS–
2009–0033]
RIN 1615–AB80

U.S. Citizenship and Immigration
Services Fee Schedule
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:

The Department of Homeland
Security (DHS) is adjusting the fee
schedule for U.S. Citizenship and
Immigration Services (USCIS). USCIS
conducted a comprehensive fee study,
refined its cost accounting process, and
determined that current fees do not
recover the full costs of services
provided. DHS has found that
adjustment to the fee schedule is
necessary to fully recover costs and
maintain adequate service. In response
to comments, several adjustments were
made to the proposed rule published on
June 11, 2010.
In this final rule, DHS: increases the
fees by a weighted average of 10
percent; establishes three new fees
covering USCIS costs related to
processing the Regional Center
Designation under the Immigrant
Investor Pilot Program, Civil Surgeon
Designation, and DHS Processing of
Immigrant Visa requests; and adjusts the
premium processing service fee by the
percentage increase in inflation
according to the Consumer Price
Index—Urban Consumers (CPI–U)
published as of July 2010. This rule also
finalizes the interim rule that
established the premium processing
service and fees.
DATES: This rule is effective November
23, 2010. Applications or petitions
mailed, postmarked, or otherwise filed
on or after November 23, 2010 must
include the new fee.
FOR FURTHER INFORMATION CONTACT:
Timothy Rosado, Acting Chief Financial
Officer, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, 20 Massachusetts
Avenue, NW., Washington, DC 20529–
2130, telephone (202) 272–1930.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

Table of Contents
I. Background.
II. Final Rule.
A. Changes in the Final Rule.
B. Corrections.
C. Summary of Final Fees.
III. Public Comments on the Proposed Rule.

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A. Authority to Promulgate Fees.
1. Immigration and Nationality Act Section
286(m).
2. Biometrics for Temporary Protected
Status.
3. Bundling.
4. Fraud Detection and National Security
and other Program Costs.
5. Guidance under Office of Management
and Budget Circulars.
6. Accounting Standards.
B. Relative Amount of Fees.
1. Recovery of Additional Costs.
2. Proposed Fees are Unreasonably High.
a. Barrier to Family Reunification.
b. Fee Increases Reduce the Number of
Filers.
c. Income–Based Fee Structure.
d. Supplementary Costs to Applicants and
Petitioners.
3. Comments on Specific Fees and
Adjustments.
a. Student Employment Authorization.
b. Entertainers, Athletes, and other
Individuals with Extraordinary Talent.
c. Adoption.
d. Entrepreneurs.
e. Refugee Travel Documents.
4. Fee Decreases.
C. Fee Waivers and Exemptions.
1. Asylee Benefits and Status Adjustment.
2. Expansion of Fee Waivers and
Exemptions.
a. Travel and Employment Authorization
Documents and Immigrant Visas.
b. Waiver Eligibility for Notices of Appeal
or Motions.
c. Military Naturalizations.
d. Arrival–Departure Records.
3. Standardization of the Fee Waiver
Process.
4. Commonwealth of the Northern Mariana
Islands Transitional Worker.
D. Naturalization.
E. Improve Service and Reduce
Inefficiencies.
1. Service Improvement and Fees.
2. Multiple Biometric Data Requests.
3. Transformation.
4. Increases Relative to Time.
5. Fee Refunds.
6. Customer Service and the Office of
Public Engagement.
F. Premium Processing.
1. Expansion of Premium Processing
Service.
2. Adjustment to the Premium Processing
Fee.
G. New Fees and Forms.
1. Immigrant Visa DHS Domestic
Processing Fee.
2. Civil Surgeon Designation Fee and Form.
3. EB–5 Regional Center Designation Fee
and Form.
H. Methods Used To Determine Fee
Amounts.
1. Reductions to USCIS Costs.
2. Appropriations.
I. Other Comments.
1. Visa Allocation and Unused Visa
Numbers.
2. Increased Periods of Validity for Travel
and Employment Documents.
3. Suggested I–94 Fee.
J. Discussion of Comments Received in
Response to the June 1, 2001, Interim

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Final Rule.
IV. Statutory and Regulatory Reviews.
A. Regulatory Flexibility Act– Final
Regulatory Flexibility Analysis.
1. Objectives of, and Legal Basis for, the
Final Rule.
2. Significant Issues Raised by Public
Comments in Response to the Initial
Regulatory Flexibility Analysis.
3. Description and Estimate of the Number
of Small Entities to which the Rule will
Apply.
4. Reporting, Recordkeeping, and Other
Compliance Requirements.
5. Steps Taken to Minimize Significant
Adverse Economic Impacts on Small
Entities.
B. Unfunded Mandates Reform Act.
C. Small Business Regulatory Enforcement
Fairness Act.
D. Executive Order 12866.
E. Executive Order 13132.
F. Executive Order 12988.
G. Paperwork Reduction Act.
List of Acronyms and Abbreviations
ABC—Activity–Based Costing.
CBP—U.S. Customs and Border Protection.
CFO—Chief Financial Officer.
CNMI—Commonwealth of the Northern
Mariana Islands.
CNRA—Consolidated Natural Resources Act.
CPI–U—Consumer Price Index—Urban
Consumers.
DHS—Department of Homeland Security.
DOS—Department of State.
EAD—Employment Authorization Document.
FASAB—Federal Accounting Standards
Advisory Board.
FBI—Federal Bureau of Investigation.
FDNS—Fraud Detection and National
Security.
FRFA—Final Regulatory Flexibility Analysis.
FY—Fiscal Year.
HSA—Homeland Security Act.
IEFA—Immigration Examinations Fee
Account.
INA—Immigration and Nationality Act.
IOAA—Independent Offices Appropriation
Act.
IRFA—Initial Regulatory Flexibility Analysis.
NNCP—National Name Check Program.
OMB—Office of Management and Budget.
OPE—Office of Public Engagement.
OPT—Optional Practical Training.
PRA—Paperwork Reduction Act.
POE—Port of Entry.
RFA—Regulatory Flexibility Act.
RFE—Request for Evidence.
SAVE—Systematic Alien Verification for
Entitlements.
SMI—Secure Mail Initiative.
SQA—System Qualified Adjudication.
TPS—Temporary Protected Status.
UMRA—Unfunded Mandates Reform Act.
USCIS—U.S. Citizenship and Immigration
Services.
USPS—United States Postal Service.
VAWA—Violence Against Women Act.

I. Background
DHS proposed to adjust the USCIS
benefits fee schedule on June 11, 2010.
See 75 FR 33445. The current USCIS fee
schedule does not recoup the full cost
of processing immigration benefits. This

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations
final rule builds on the 2008/2009
USCIS fee rule that sought to align fees
with the costs of specific application
types and make adjustments to some
fees based on policy considerations.
This final rule also reflects FY 2010
appropriations to remove asylum,
refugee, and military naturalization
costs from the fee structure. See 75 FR
33445, 33447. Previously, surcharges
were added to immigration fees to
recover the cost of adjudicating asylum,
refugee, and military naturalization
requests. Costs for the Systematic Alien
Verification for Entitlements (SAVE)
program and the Office of Citizenship
were also supported by fee revenue. The
Administration’s fee reform policy, as
reflected in the Administration’s budget
request, moves all of these costs out of
the USCIS fee structure to appropriated
funds and improves the transparency of
USCIS fees.
USCIS entered supporting
documentation for this rulemaking and
its methodology, including budget
methodology and regulatory flexibility
analyses, into the public docket. See
http://www.regulations.gov, docket
number USCIS–2009–0033.
II. Final Rule

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A. Changes in the Final Rule
DHS is adopting the proposed rule
with changes, both in response to
comments and as a result of new
information. The explanations of the
changes are discussed in the sections
dealing with comments and the subject
matter of the change. No modification to
the final fees is made as a result of these
changes. The changes that DHS is
making to the final rule are summarized
as follows:
Clarify fee exemptions for requests for
Civil Surgeon Designation. DHS will
charge no fee for an application from a
medical officer in the U.S. Armed
Forces or civilian physician employed
by the U.S. government who examines
members of the U.S. Armed Forces,
veterans of the Armed Forces, and their
dependents at a U.S. military,
Department of Veterans Affairs, or U.S.
government facility in the United States.
New 8 CFR 103.7(b)(1)(i)(SS).
Reduce the fee for an Application for
Travel Document, Form I–131, when it
is filed to request a Refugee Travel
Document. DHS has reduced the fee for
an Application for Travel Document in
the final rule to $135 for a Refugee
Travel Document for an adult age 16 or
older, and $105 for a child under the age
of 16. DHS has decided also to permit
the fee for an Application for Travel
Document to be waived based on
inability to pay when it is based on a

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request for Humanitarian Parole. New 8
CFR 103.7(b)(1)(i)(M).
Provide that the fee for the Notice of
Appeal or Motion, Form I–290B, may be
waived in certain cases. DHS will allow
the fee for the Notice of Appeal or
Motion to be waived upon a showing of
inability to pay in those cases when the
appeal or motion is from the denial of
an immigration benefit request where
the applicant or petitioner was not
required to pay a fee or that fee was
waived. New 8 CFR 103.7(c)(3)(vi).
Provide for no fee for a Notice of
Appeal or Motion for an appeal of a
denial of a petition for a special
immigrant visa from an Iraqi or Afghan
national who worked for or on behalf of
the U.S. Government in Iraq or
Afghanistan. DHS believes it is keeping
with the policy to assist this group of
petitioners by allowing them to file a
Notice of Appeal or Motion without a
fee. New 8 CFR 103.7(b)(1)(i)(W).
Provide for a free Request for Hearing
on a Decision in Naturalization
Proceedings, Form N–336, and an
Application for Certification of
Citizenship, Form N–600, to exempt
from fees requests from a member or
veteran of the U.S. Armed Forces. New
8 CFR 103.7(b)(1)(i)(W), (AAA). USCIS
is precluded by law from collecting a fee
from members of the military for an
Application for Naturalization under
sections 328 and 329 of the Immigration
and Nationality Act (INA). INA sections
328(b) & 329(b), 8 U.S.C. 1439(b) &
1440(b). DHS has decided to provide
that military members are also exempt
from the fee for these requests.
B. Corrections
DHS makes a number of technical
corrections in this final rule. DHS does
not make any changes to the final fees
as a result of these corrections. In the
preamble of the proposed rule, DHS
included a table of those benefits
requests that also required submission
of biometrics and the related biometrics
services fee. 75 FR 33445, 33461. USCIS
failed to include the Application to
Extend/Change Nonimmigrant Status,
Form I–539, in the table of fees for
immigration benefits that require
biometric services in the proposed rule.
Id. Applicants filing an Application to
Extend/Change Nonimmigrant Status to
request ‘‘V’’ nonimmigrant status are
required to submit biometric
information and pay the biometric fee.
8 CFR 214.15(f)(1)((ii). A ‘‘V’’ visa is
available for certain spouses and
children of lawful permanent residents
who have had a petition for an
immigrant visa or application for
naturalization pending for 3 years or
more. INA section 101(a)(15(V), 8 U.S.C.

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58963

1101(a)(15)(V). This is the only class of
Application to Extend/Change
Nonimmigrant Status (Form I–539)
applicants that currently require
biometric services. The fee for this
application in this final rule is $290.
New 8 CFR 103.7(b)(1(i)(X). The
biometric fee is $85. New 8 CFR
103.7(b)(1)(i)(C). As a result, the
inclusive fee for filing an Application to
Extend/Change Nonimmigrant Status
(Form I–539) for V nonimmigrants is
$375. USCIS also inadvertently did not
include the Application for Suspension
of Deportation or Special Rule
Cancellation of Removal (Pursuant to
Section 203 of Public Law 105–110),
Form I–881, in the table of fees in the
preamble to the proposed rule. This
benefit request and its $285 fee are
included in the table in this preamble
for illustrative purposes. Finally, USCIS
is removing the separate fee for filing an
application for issuance or extension of
a refugee travel document (Form I–570)
because the refugee document process
was consolidated into the application
for travel documents (Form I–131), and
the reference is obsolete.
The William Wilberforce Trafficking
Victims Protection Reauthorization Act
of 2008 requires DHS to permit aliens to
apply for a waiver of any fees associated
with filing an application for relief
through final adjudication of the
adjustment of status for relief by a
Violence Against Women Act (VAWA)
self-petitioner or under INA sections
101(a)(15)(T) (T visas), 101(a)(15)(U) (U
visas), 106 (battered spouses of A, G, E–
3, or H nonimmigrants), 240A(b)(2)
(battered spouse or child of a lawful
permanent resident or U.S. citizen), and
244(a)(3) (Temporary Protected Status)
(as in effect on March 31, 1997). INA
section 245(l)(7), 8 U.S.C. 1255(l)(7).
Public Law 110–457, section 122 Stat.
5044 (Dec. 23, 2008); 22 U.S.C. 7101 et
seq. This rule corrects the oversight
from the proposed rule and provides
that these groups or individuals may
request a waiver of any USCIS fee to
which they may be otherwise subjected.
New 8 CFR 103.7(c)(3)(xvii).
USCIS inadvertently did not include
the Petition to Remove the Conditions of
Residence, Form I–751, and the
Application for Suspension of
Deportation or Special Rule
Cancellation of Removal (Pursuant to
Section 203 of Pub. L. 105–110), Form
I–881, in the list of forms currently
eligible for fee waivers. Proposed 8 CFR
103.7(c)(3); 75 FR 33445, 33487. These
exclusions are corrected in this final
rule. USCIS has determined that it will
continue its policy of accepting fee
waiver requests for Forms I–751 and I–

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations

881. New 8 CFR 103.7(c)(3)(vii) and (xi);
8 CFR 240.63(a).
In the proposed rule, USCIS
unintentionally replaced the word ‘‘or’’
in the fee for an Application to Register
Permanent Residence or Adjust Status,
Form I–485, with ‘‘and’’ in an attempt to
simplify the language in current 8 CFR
103.7(b)(1). Proposed 8 CFR
103.7(b)(1)(U)(2). A discounted fee has
previously been provided for ‘‘an
applicant under the age of fourteen
years when submitted concurrently for
adjudication with the Form I–485 of a
parent and the applicant is seeking to
adjust status as a derivative of the
parent, based on a relationship to the

same individual who provides the basis
for the parent’s adjustment of status, or
under the same legal authority as the
parent.’’ 8 CFR 103.7(b)(1). This
proposed change would have eliminated
the discount made available to certain
children in the 2008/2009 fee rule.
USCIS will continue to allow a child
filing concurrently with a parent to pay
the reduced fee when the child ‘‘is
seeking to adjust status as a derivative
of the parent, based on a relationship to
the same individual who provides the
basis for the parent’s adjustment of
status, or under the same legal authority
as the parent’’ and has restored that

language to the regulatory text in this
final rule. New 8 CFR 103.7(b)(1)(U)(2)
C. Summary of Final Fees
The current USCIS Immigration
Benefit Request Fee Schedule and the
fees adopted in this final rule are
summarized in Table 1. DHS bases its
final fees on the FY 2011 President’s
Budget Request as outlined in the
proposed rule, incorporating
appropriated funding for refugee,
asylum, and military naturalization
processing, as well as the Office of
Citizenship and the SAVE program. 75
FR 33456.

TABLE 1—IMMIGRATION BENEFIT REQUEST FEES
Form No.

Title

I–90 ...................
I–102 .................
I–129/129CW ....
I–129F ...............
I–130 .................
I–131 .................
I–140 .................
I–191 .................
I–192 .................
I–193 .................
I–212 .................
I–290B ...............
I–360 .................
I–485 .................
I–526 .................
I–539 .................
I–600/600A ........
I–800/800A ........
I–601 .................
I–612 .................
I–687 .................

Application to Replace Permanent Resident Card ..........................................................................
Application for Replacement/Initial Nonimmigrant Arrival-Departure Document .............................
Petition for a Nonimmigrant Worker ................................................................................................
Petition for Alien Fiance´(e) ..............................................................................................................
Petition for Alien Relative ................................................................................................................
Application for Travel Document .....................................................................................................
Immigrant Petition for Alien Worker .................................................................................................
Application for Advance Permission to Return to Unrelinquished Domicile ...................................
Application for Advance Permission to Enter as Nonimmigrant .....................................................
Application for Waiver of Passport and/or Visa ...............................................................................
Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal
Notice of Appeal or Motion ..............................................................................................................
Petition for Amerasian, Widow(er), or Special Immigrant ...............................................................
Application to Register Permanent Residence or Adjust Status .....................................................
Immigrant Petition by Alien Entrepreneur ........................................................................................
Application to Extend/Change Nonimmigrant Status ......................................................................
Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition.
Application for Waiver of Ground of Excludability ...........................................................................
Application for Waiver of the Foreign Residence Requirement ......................................................
Application for Status as a Temporary Resident under Sections 245A or 210 of the Immigration
and Nationality Act.
Application for Waiver of Grounds of Inadmissibility .......................................................................
Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act
Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of
Pub. L. 99–603).
Petition to Remove the Conditions of Residence ............................................................................
Application for Employment Authorization .......................................................................................
Application for Family Unity Benefits ...............................................................................................
Application for Action on an Approved Application or Petition ........................................................
Petition by Entrepreneur to Remove Conditions .............................................................................
Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to
Section 203 of Pub. L. 105–110).
Request for Premium Processing Service .......................................................................................
Civil Surgeon Designation ...............................................................................................................
Application for Regional Center under the Immigrant Investor Pilot Program ................................
Application to File Declaration of Intention ......................................................................................
Request for Hearing on a Decision in Naturalization Proceedings .................................................
Application for Naturalization ...........................................................................................................
Application to Preserve Residence for Naturalization Purposes .....................................................
Application for Replacement Naturalization/Citizenship Document ................................................
Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate
under Section 322.
Immigrant Visa DHS Domestic Processing .....................................................................................
Capturing, Processing, and Storing Biometric Information .............................................................

I–690 .................
I–694 .................
I–698 .................
I–751
I–765
I–817
I–824
I–829
I–881

.................
.................
.................
.................
.................
.................

I–907 .................

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I–924 .................
N–300 ................
N–336 ................
N–400 ................
N–470 ................
N–565 ................
N–600/ ...............
600K ..................
Biometrics ..........

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Current fees

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Final fees

$290
320
320
455
355
305
475
545
545
545
545
585
375
930
1,435
300
670

$365
330
325
340
420
360
580
585
585
585
585
630
405
985
1,500
290
720

545
545
710

585
585
1,130

185
545
1,370

200
755
1,020

465
340
440
340
2,850
285

505
380
435
405
3,750
285

1,000
0
0
235
605
595
305
380
460

1,225
615
6,230
250
650
595
330
345
600

0
80

165
85

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations
III. Public Comments on the Proposed
Rule
DHS provided a 45-day comment
period following the publication of the
proposed rule and received 225
comments. DHS also invited the public
to access the commercial software
utilized in executing the budget
methodology and developing the cost
model underlying the proposed rule to
facilitate public understanding of the fee
modeling process explained in the
supporting documentation. See 75 FR
33445, 33447. USCIS received no
requests for access to the modeling
program.
On June 9, 2010, USCIS Director
Alejandro Mayorkas hosted a
stakeholder engagement that focused
exclusively on the proposed rule.
During this engagement, Director
Mayorkas provided information about
the rule and directed the public to the
Federal Register and http://
www.regulations.gov to submit
comments on the proposed rule.
Throughout the public comment period,
USCIS Senior Leadership met with
stakeholders during regularly–
scheduled engagements and used these
opportunities to provide information
and encourage individuals and groups
to submit written comments.
DHS received comments from a broad
spectrum of individuals and
organizations, including refugee and
immigrant service and advocacy
organizations, public policy and
advocacy groups, members of Congress,
and private citizens. Many comments
addressed multiple issues or provided
variations of opinion on the same
substantive issues. Comments ranged
from strongly supportive of the fee
changes to strongly critical. Some
comments provided critiques of the
methodology and the proposed fee
schedule, while others suggested
alternative methods and funding
sources to finance USCIS operations.
DHS has considered the comments
received and all other materials
contained in the docket in preparing
this final rule. The final rule does not
address comments seeking changes in
United States statutes; changes in
regulations or applications and petitions
unrelated to, or not addressed by, the
proposed rule; changes in procedures of
other components within DHS or other
agencies; or the resolution of any other
issues not within the scope of the
rulemaking or the authority of DHS. All
comments may be reviewed at the
Federal Docket Management System
(FDMS) at www.regulations.gov, docket
number USCIS–2009–0033. The public
may also review the docket upon

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request by contacting USCIS through the
contact information listed in this rule.
A. Authority to Promulgate Fees
Several commenters questioned
DHS’s authority to promulgate the rule.
Specific comments challenged DHS’s
authority to charge specific amounts for
specific fees, to cross–subsidize fees,
and to make policy decisions that affect
the amount of specific fees. These
comments asserted both generally, and
in regard to specific fees, that DHS’s
proposed fee schedule was not in
conformity with different provisions of
law, policy, and guidance. Some
commenters suggested that
administrative and overhead costs were
not related to the provision of services
and should be excluded. Other
commenters suggested that enforcement
costs should be excluded from the fees,
while others recommended that all of
the enforcement costs of immigration
and law enforcement agencies should be
recovered by fees. Several commenters
asserted that expenses not related to the
provision of ‘‘adjudication and
naturalization services’’ are matters of
public benefit and should instead be
funded by appropriation. Commenters
also suggested that DHS was not
authorized to ‘‘bundle’’ fees or to cross–
subsidize costs of one service with
funding from another fee.
Underlying these comments is the
issue of compliance with the
authorizing statute and conformance
with internal Executive Branch
guidance. Although some commenters
recognized that DHS is permitted to
fund all USCIS operations from fees,
they asserted there is no statutory
mandate requiring it to do so. These
comments raise the issue of the general
structure of the Immigration
Examinations Fee Account (IEFA), and
whether fees can legally recover certain
costs.
DHS disagrees. DHS outlined its
authority to promulgate the USCIS fee
schedule in the proposed rule. 75 FR
33445, 33447–8. DHS carefully reviews
its authority to act and provides a more
detailed explanation of its legislative
authority and management guidance in
response to these comments.
1. Immigration and Nationality Act
Section 286(m)
The Immigration and Nationality Act,
as amended, provides for the collection
of fees at a level that will ensure
recovery of the full costs of providing
adjudication and naturalization
services, including services provided
without charge to asylum applicants
and certain other immigrant applicants.

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INA section 286(m), 8 U.S.C. 1356(m).1
The INA provides that the fees may
recover administrative costs as well.
The fee revenue collected under section
286(m) of the INA remains available to
DHS to provide immigration and
naturalization benefits and ensures the
collection, safeguarding, and accounting
of fees by USCIS. INA section 286(n), 8
U.S.C. 1356(n).
Congress also has imposed specific
fixed fees, such as the $7 individual
immigration inspection fee at ports of
entry. INA section 286(d), 8 U.S.C.
1356(d). Additionally, Congress has
established certain fixed fees and
provided a specific method for
adjustment of those fees, such as the
premium processing fee. INA section
286(u), 8 U.S.C. 1356(u). DHS considers
the structure of all of these provisions
and the relationship between fee
requirements and appropriated funds in
reaching decisions about the USCIS fee
schedule.
INA section 286(m), 8 U.S.C. 1356(m),
contains both silence and ambiguity
under Chevron USA, Inc. v. Natural
Resources Defense Council, 467 U.S.
837 (1984). Congress has not spoken
directly, for example, to a number of
issues present in this section, including
the scope of application of the section
or subsidizing operations from other
fees.2 Congress has provided that USCIS
recover costs ‘‘including the costs of
similar services’’ provided to ‘‘asylum
applicants and other immigrants.’’
Congress has not detailed the
determination of what costs are to be
included. Moreover, ‘‘other immigrants’’
has a broad meaning under the INA
because the term ‘‘immigrant’’ is defined
by exclusion to mean ‘‘every alien
1 INA section 286(m), 8 U.S.C. 1356(m), provides,
in pertinent part that notwithstanding any other
provisions of law, all adjudication fees as are
designated by the [Secretary of Homeland Security]
in regulations shall be deposited as offsetting
receipts into a separate account entitled
‘‘Immigration Examinations Fee Account’’ in the
Treasury of the United States, whether collected
directly by the [Secretary] or through clerks of
courts: Provided, however, * * *: Provided further,
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 fees may also
be set at a level that will recover any additional
costs associated with the administration of the fees
collected.
Paragraph (n) provides that deposited funds
remain available until expended ‘‘for expenses in
providing immigration adjudication and
naturalization services and the collection,
safeguarding and accounting for fees deposited in
and funds reimbursed from the ‘Immigration
Examinations Fee Account’.’’
2 Congress’s intent in using individual terms,
such as ‘‘full cost,’’ is clear, although the totality of
the section is ambiguous.

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except an alien who is within one of the
following classes of nonimmigrant
aliens.’’ INA section 101(a)(15), 8 U.S.C.
1101(a)(15). The extensive listing of
exclusions from ‘‘immigrant’’ by the
non-immigrant visa classes is replete
with ambiguity evidenced by the
detailed and complex regulations and
judicial interpretations of those
provisions.
Congress additionally provides
annual appropriations for specific
USCIS programs. Appropriated funding
for FY 2010 included asylum and
refugee operations (4th Quarter
contingency funding), and military
naturalization surcharge costs ($55
million); E-Verify ($137 million);
immigrant integration ($11 million);
REAL ID Act implementation ($10
million); and data center consolidation
($11 million). Department of Homeland
Security Appropriations Act, 2010,
Public Law 111–83, title IV, 123 Stat.
2142, 2164–5 (Oct. 28, 2009) (DHS
Appropriation Act 2010). Providing
these limited funds against the backdrop
of the broad immigration examinations
fee statute—together forming the totality
of funding available for USCIS
operations—requires that all other costs
relating to USCIS and adjudication
operations are funded from fees. In
appropriating specific funds, Congress
approves of the fee amounts
promulgated by DHS for the operation
of USCIS by approving the total
expenditure level. When no
appropriations are received, or fees are
statutorily set at a level that does not
recover costs, or DHS determines that a
type of application should be exempt
from payment of fees, USCIS must use
funds derived from other fee
applications to fund overall
requirements and general operations.
Before the IEFA was created in 1988,
all activities related to case processing
were funded by appropriations. See
Public Law 100–459, section 209, 102
Stat. 2186 (Oct. 1, 1988). While fees
were charged prior to 1988, those fees
were treated as miscellaneous receipts
of the United States Treasury and
deposited in the General Fund. Those
fees were not available to the
Immigration and Naturalization Service
for expenditure. The IEFA was created
to provide an alternative to
appropriations. As many of the
commenters stated, the law does not
preclude the use of appropriations to
subsidize fee receipts to fund
operations. In the absence of
appropriations, however, USCIS’s only
funding source is fee revenue. Of the
$386,000,000 requested in the FY 2011
Budget, $259,000,000 will cover the
estimated cost of asylum and refugee

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surcharges ($207 million), the SAVE
program ($34 million), and the Office of
Citizenship ($18 million) for FY 2011.
The fees in this rule assume that the
costs of these activities will not be
financed by fee revenue and, instead,
paid with appropriated funds.
Commenters suggested that only the
activities directly relating to specific
adjudications should be charged to
those who apply for the benefits. These
comments rely on statutory authority
separate from the authority for these
fees. The general authority for the
United States to impose and collect
‘‘user’’ fees stems from the Independent
Offices Appropriation Act, 1952 (IOAA),
31 U.S.C. 9701(b). Under the IOAA, a
‘‘value’’ to the recipient is a key
threshold factor and the costs of ‘‘public
interest’’ have been effectively included
within the fees. National Cable
Television Ass’n v. United States, 415
U.S. 336 (1974); FPC v. New England
Power Co., 415 U.S. 345 (1974);
Seafarers Internat’l Union v. Coast
Guard, 81 F.3d 179, 183 (DC Cir. 1996).
In New England Power Co., the Supreme
Court held that the IOAA authorizes ‘‘a
reasonable charge’’ to be made to ‘‘each
identifiable recipient for a measurable
unit or amount of Government service
or property from which [the recipient]
derives a special benefit.’’ See 415 U.S.
at 349 (quoting Bureau of the Budget
Circular No. A–25 (Sept. 23, 1959)). The
Court held that such fees may be
assessed to an individual even when the
benefits from the service provided are
not only special to the recipient but
widespread to the general public as a
whole. Id. See also National Cable
Television Ass’n, 415 U.S. at 343–44. So
long as the service provides a special
benefit above and beyond that which
accrues to the public at large to a
readily-identifiable individual, the fee is
permissible. New England Power, 415
U.S. at 349–51 & n. 3.
Prior to the enactment of INA section
286(m) 8 U.S.C. 1356(m), fees charged
for immigration services were governed
by the IOAA and were judicially
reviewed under the IOAA. A more
elementary cost analysis than that
currently used was upheld by the
courts. Ayuda, Inc. v. Attorney General,
661 F. Supp. 33 (D.D.C. 1987), aff’d, 848
F.2d 1297 (DC Cir. 1988). As the Court
of Appeals in Ayuda stressed, the
procedures were ‘‘triggered only at the
instance of the individual who seeks,
obviously, to benefit from them.’’ 848
F.2d at 1301.
Congress changed this formulation for
immigration fees in the enactment of
INA section 286(m) and the creation of
the IEFA. DHS’s authority under INA
section 286(m) is an exception to the

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limitations of the IOAA. 31 U.S.C.
9701(c). The relevant, second proviso
was added to the INA after the Court of
Appeals decided Ayuda under the
IOAA. See Public Law 101–515, section
210(d)(1), (2), 104 Stat. 2120, 2121 (Nov.
5, 1990). The statutory provisions in
section 286(m) are broader than the
IOAA, authorizing DHS to recover the
full cost of providing benefits and
ensuring sufficient revenues to invest in
improved service and technology. Even
though the requirements of the IOAA do
not apply in developing these fees, DHS
and USCIS are mindful of the need to
explain the process to the general public
and have done so. Cf. Engine
Manufacturers Assoc. v. EPA, 20 F.3d
1177 (DC Cir. 1994).
Accordingly, DHS disagrees with the
commenters’ suggestions that it has
exceeded its authority to promulgate
fees to recover the full cost of operating
USCIS. Congress and the Executive
Branch have been in agreement that the
full cost of operating USCIS should
come from the sum of the general IEFA
fee account, several other specific feedriven provisions of statute, and annual
appropriated funds. The balance of the
funding between these accounts is
struck by Congress in determining the
annual appropriation, and DHS and
USCIS negotiate that result with
Congress and adjust as practical the
total amount charged as fees, which is
ultimately approved by Congress as the
amount that may be expended.
2. Biometrics for Temporary Protected
Status
A commenter expressed specific
concern that the proposed charges to the
biometric services fee in the proposed
fee rule are unlawful in their
application to the temporary protected
status (TPS) program. TPS is a
temporary benefit that eligible aliens in
the United States may request if their
home countries have been designated
for TPS by the Secretary based on
temporary and extraordinary conditions
that prevent such aliens from being able
to return to their countries safely, or in
certain circumstances, where their
countries are unable to handle their
return adequately. See generally INA
section 244, 8 U.S.C. 1254a.
The commenter suggested that if at
least certain TPS re-registrants are not
exempt from the biometric services fees,
then the proposed changes may run
afoul of the statutory constraints on fees
charged to TPS registrants because the
biometric services fee would: (1) Charge
for services that are not provided; (2)
charge for services that do not constitute
‘‘biometric services;’’ and (3) charge for
services that are not necessary. Based on

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the potential problems with requiring
all TPS re-registrants to pay the
biometric services fee, the commenter
respectfully urged USCIS to interpret its
fee rule to exempt TPS re-registrants
from paying the biometric services fee,
or impose a reduced fee for TPS reregistrants whose biometric information
does not need to be collected. The
commenter additionally suggested that
initial TPS registrants should not be
charged the costs of background checks
that are already subsumed in the $50
TPS registration fee. INA section
244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B)
(authorizing ‘‘payment of a reasonable
fee as a condition of registering [for
TPS] . * * * The amount of any such
fee shall not exceed $50.’’ (emphasis
added)); Department of Homeland
Security Appropriations Act, 2010,
Public Law 111–83, section 549, 123
Stat. 2177 (Oct. 28. 2009); 8 U.S.C.
1254b(a) (authorizing ‘‘fees for
fingerprinting services, biometric
services, and other necessary services
[to] be collected when administering the
program described in section 1254a’’);
75 FR 33445, 33446–01, 33447. The
commenter asserts that because of these
limits, a $50 TPS application fee is
imposed only once, upon initial
registration.
The commenter noted that it
represents a nationwide class of Central
American TPS applicants, in the
currently pending class action
challenging USCIS biometric fee
requirements.3 The majority of the
comment reiterated the arguments that
the plaintiffs made in the litigation.
DHS agrees with the reasoning of the
District Court in dismissing that case.4
DHS had proposed in that section that
no biometric services fee would be
charged when ‘‘[t]here is no fee for the
associated benefit request that was, or
3 Bautista-Perez v. Holder, No. 3:07–cv–04192–
TEH (N.D. Cal.). See 2009 WL 2031759 (N.D. Cal.
July 9, 2009) (order denying plaintiff’s motion for
partial summary judgment and granting in part and
denying in part defendants’ cross-motion for
summary judgment).
4 Bautista-Perez v. Holder, No. 3:07–cv–04192–
TEH (N.D. Cal. Sept. 15, 2010), Dk. No. 153 (order
granting defendant’s motion to dismiss with leave
to amend complaint). ‘‘The strict accounting that
Plaintiffs demand for the biometric services fee is
unwarranted by the statute. [Pub. L. 111–83, section
549, 123 Stat. 2142 (Oct. 28, 2009)] does not purport
to dictate how USCIS calculates the fee for this
service; it merely authorizes the charging of fees for
‘‘necessary services * * * when administering’’ the
TPS program. USCIS does not defy that authority
by charging a standard fee even though some
applicants require more services than others. * * *
Plaintiffs argue, in essence, that section 549
requires every component of the fee to be directly
tied to the fee-payer’s TPS application. The Court
does not see how section 549 gives it the authority
to scrutinize the calculation of USCIS’s biometric
services fee in such painstaking detail.’’ Dk. No.
154, slip. op. at 15.

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is, being submitted.’’ See proposed 8
CFR 103.7(b)(1)(i)(C)(2); 75 FR 33445,
33484. DHS proposed this change both
as a humanitarian measure and for
administrative efficiency for certain
immigration benefit requests for which
DHS had previously provided an
exemption from the initial immigration
benefit request fee for the underlying
benefit request in the FY 2008/2009 fee
rule. The 2008/2009 fee rule
promulgated several general exemptions
to immigration benefit request fees. For
example, the rule provided that there
was no fee for a Petition for Amerasian,
Widow(er), or Special Immigrant, Form
I–360, filed by an individual seeking
classification as an Amerasian; a selfpetitioning battered or abused spouse,
parent, or child of a United States
citizen or lawful permanent resident; or
a Special Immigrant Juvenile. See 72 FR
29851 (May 30, 2007), 29865, 29873.
Fee exemptions were also provided for
four small volume programs: victims of
human trafficking (T visas), victims of
violent crime (U visas), VAWA selfpetitioners, and Special Immigrant
Juveniles. The reasons for providing
these specific application and petition
fee exemptions were fully discussed in
the 2008/2009 proposed fee rule. See 72
FR 4888, 4903 (Feb. 1, 2007). In that
rule, DHS also provided for additional
fee waivers, such as the biometric fee,
where individuals demonstrate an
inability to pay. See 72 FR 29851,
29874; 8 CFR 103.7(c)(5).
Although DHS exempted individuals
requesting the specific humanitarian
benefits noted above from having to pay
the immigration benefit request fees in
the FY 2008/2009 fee rule, DHS did not
specifically exempt them, on a blanket
basis, from also paying the associated
biometrics fee. At that time, DHS only
provided eligibility for an
individualized biometrics fee waiver
where the applicant or petitioner could
show an inability to pay the biometrics
fee under 8 CFR 103.7(c). There has
been continuing confusion since the FY
2008/2009 fee rule about whether the
biometric services fee is required if the
immigration benefit request fee is not
required. USCIS has accommodated
some of the concerns by
administratively treating a request for a
fee waiver of the underlying benefit fee
as also a request for a waiver of the
biometrics fee, and not requiring a
duplicate, simultaneous or subsequent
request to waive that fee. In the
proposed rule, DHS proposed an
amendment in 8 CFR 103.7(b)(1)(i)(C)(2)
to simplify the process so that a
biometrics fee would also not be
required for those particular fee-exempt

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immigration benefit requests that DHS
considered when deciding to provide
fee exemptions. DHS also intended that
no biometrics fee would be required in
cases where any immigration benefit
request fee for the associated benefit
was waived, on a case-by-case basis,
under 8 CFR 103.7(c).
The proposed revision and the final
rule implement Congressional
enactment of the Department of
Homeland Security Appropriations Act,
2010, specifying that: ‘‘In addition to
collection of registration fees described
in section 244(c)(1)(B) of the [INA] (8
U.S.C. 1254a(c)(1)(B)), fees for
fingerprinting services, biometric
services, and other necessary services
may be collected when administering
the [TPS] program described in section
244 of such Act.’’ Public Law 111–83,
123 Stat. 2142 (Oct. 28, 2009).
Through the language that was
initially proposed for 8 CFR
103.7(b)(1)(i)(C)(2) and consistent with
current TPS fee waiver practice, DHS
intended that the biometrics fee would
not be required from an initial TPS
applicant who was granted a waiver of
the initial TPS application fee based on
inability to pay. However, DHS did not
intend that the proposed regulatory
language should be construed to exempt
from payment of the biometric services
fee all TPS beneficiaries, aged 14 and
older, who apply to re-register for TPS,
regardless of inability to pay. Although
applicants for TPS re-registration do not
currently submit the $50 for the
Application for Temporary Protected
Status, Form I–821, after their initial
TPS applications, TPS beneficiaries
have often held TPS status for several
years, and they have been eligible for
employment authorization at least since
obtaining TPS, and earlier if they were
found eligible for TPS temporary
treatment benefits. See 8 CFR 244.5 and
244.12. Most TPS beneficiaries, in fact,
have employment authorization
documents.
Unlike many of the initial applicants
for the fee-exempt humanitarian
benefits, such as T and U visas, special
immigrant juveniles, and certain selfpetitioning battered aliens, TPS
beneficiaries seeking re-registration
have work authorization and thus,
generally have less need for a blanket
exemption from the biometric services
fee. If all such re-registering TPS
beneficiaries were exempt from the
biometrics fee, the cost of providing
them with biometric services would
need to be borne by other applicants
and petitioners for immigration benefits.
DHS does not perceive a need to shift
the biometrics costs for re-registering
TPS beneficiaries onto other individuals

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through a blanket biometrics fee
exemption. However, DHS will continue
to provide, on an individual basis, a fee
waiver of the biometrics fee when a reregistering TPS beneficiary does
demonstrate an inability to pay the $85
biometric fee. DHS has revised the
language of this provision to ensure
clarity and to alleviate potential
confusion. New 8 CFR 103.7(b)(1)(i)(C).
3. Bundling
One commenter specifically argued
that defects in the current regulation
persist in the proposed fee rule in that
both the current regulations and the
proposed rule exceed the authority
granted under INA section 286(m), 8
U.S.C. 1356(m), by ‘‘bundling’’ certain
benefits and associated fees.
Specifically, the commenter argued that
DHS erred in the 2008/2009 fee rule by:
(1) Impermissibly ‘‘bundling’’ the fee for
applications to adjust status with the
fees for interim benefits, requiring
applicants to pay for services that they
do not want or need, cannot use, and/
or do not actually receive and (2)
improperly including in application and
petition fees the costs of agency
activities that are distantly related, if at
all, to the provision of immigration
services to fee-paying applicants.5
DHS disagrees with the commenter’s
belief that the law requires that IEFA
fees be tied to the actual services
provided. As explained above, the costto-services linkage under the IOAA is
not applicable to fees under the IEFA,
which is an exception to the IOAA. The
IEFA is administered using the cost
modeling similar to that used in IOAA
fees, but necessarily includes
administrative decisions to assign
overhead costs that cannot be readily
associated with specific activities.
Similarly, administrative discretion
must be applied when a substantial cost
would be generated in attempting to
drive costs to highly individualized
objects, such as individual applicants.
In effect, the Administration bundles
certain costs to fees because it may be
more efficient to do so and can create
a total lower cost of operation. DHS
determined to bundle the fees as a
resolution to simplify interim benefits
and reduce interim benefit applications.
The costs of administering
individualized fee determinations
exceed the benefits to the totality of
applicants and petitioners, and the
government. 72 FR 29851, 29861
(providing multiple fee options based
on who typically requests interim
5 The commenter makes the same arguments that
it made in Barahona v. Napolitano, No. 1:10–cv–
1574–SAS (S.D.N.Y.).

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benefits, when records indicate that the
vast majority of applicants do request
interim benefits, would be too
complicated and costly for USCIS to
administer). USCIS may reconsider this
evaluation during a fee review cycle
after the implementation of electronic
records. DHS and USCIS may be able to
provide this type of customized fee
structure in the future, but cannot
effectively do so at this time.
The commenter’s concern reflects a
limited view of the decision-making
process. Policy decisions inherently
made by regulations directly affect the
fee structure. For example, the policy
decision to exempt aliens who are
victims of a severe form of trafficking in
persons and who assist law enforcement
in the investigation or prosecution of
the acts of trafficking (T Visa), and
aliens who are victims of certain crimes
and are being helpful to the
investigation or prosecution of those
crimes (U Visa), from visa fees, the cost
of processing those fee-exempt visas
must be recovered by fees charged
against other applications. INA sections
101(a)(15)(T), (U), 214(o), (p), 8 U.S.C.
1101(a)(15)(T), (U), and 1184(o), (p); 8
CFR 214.11, 214.14, 103.7(c)(5)(iii);
Adjustment of Status to Lawful
Permanent Resident for Aliens in T or
U Nonimmigrant Status, 73 FR 75540
(Dec. 12, 2008). Each such decision
affects the totality of the fee-paying
applicants and petitioners and removes
some source of revenue. Inherently, and
consistent with INA section 286(m), 8
U.S.C. 1356(m), that revenue is
recovered from other fee-paying
applicants and petitioners.
The commenter’s suggestion that DHS
lacks authority to make policy decisions
adjusting the amount of fees also
overlooks the reality of the two
contiguous and complete sources of
funding for USCIS. The totality of
funding for USCIS from two sources
effectively means that if one source is
insufficient, the other source must make
up the difference, or workload will not
be performed at the prescribed level,
itself a policy choice.
Policy decisions made regarding the
implementation of the Immigration and
Nationality Act and other immigration
laws inherently and directly affect
USCIS budget requirements. Both INA
section 286(m) and Congress, in annual
appropriations and expenditure level
approvals, recognize this point. The
Administration has taken steps within
the enacted FY 2010 appropriations for
USCIS to move away from fee-generated
revenue to support asylum, refugee, and
military naturalization costs. The
Administration seeks to improve the
linkage between fees paid by USCIS

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applicants and petitioners and the cost
of programs and activities to provide
immigration benefits as a matter of
policy, not a matter of law.
4. Fraud Detection and National
Security (FDNS) and Other Program
Costs
Several commenters suggested that
the proposed rule should have excluded
any law enforcement or national
security functions, such as the Fraud
Detection and National Security (FDNS)
operations. DHS disagrees with these
suggested restrictions and continues to
believe that it may fund, as a matter of
discretion, all of USCIS operations, or
more, from fees.
Other commenters suggested that
additional costs should be recovered
through the IEFA account. Implicitly,
these comments suggest an
understanding that the authority of DHS
under the INA is broader than DHS is,
in fact, currently exercising.
The realignment of functions within
USCIS to create the FDNS was a
consolidation of specific previous
functions from benefit programs to
streamline operations. In a sense, FDNS
was created to consolidate the anti-fraud
efforts within USCIS that have
traditionally been funded from fees.
These anti-fraud efforts are not
impermissible under INA section
286(m), 8 U.S.C. 1356(m). DHS does not
opine on whether the anti-fraud efforts
of FDNS would be permissible under
the IOAA, but only that INA section
286(m) is an exception to the IOAA and
the Administration is permitted to
decide, as a matter of policy, to include
these charges within the IEFA. 31 U.S.C.
9701(c).
As for anti-fraud, law enforcement,
and national security efforts, DHS
believes that the commenters
misunderstand the nature of these
efforts. These efforts are integral to
determining an applicant’s eligibility for
a benefit, and to maintain the integrity
of the immigration system. Background
check information helps benefit public
safety and security by identifying
persons who may be ineligible for a
benefit due to a criminal background.
Further, recent fraud detection efforts
have resulted in changes to several
USCIS programs, such as the final rule,
Special Immigrant and Nonimmigrant
Religious Workers, published
specifically to address concerns about
the integrity of the religious worker
program that were uncovered by USCIS
fraud detection experts. See 73 FR
72276 (Nov. 26, 2008). The filing of an
immigration benefit request is why
security checks, fraud reviews, and
investigations of possible violations are

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needed. Thus it is appropriate for the
full costs of these efforts to be funded
by fees paid by those who file such
requests.
Accordingly, DHS disagrees that the
inclusion of FDNS in the fee calculation
is inappropriate and will continue to
fund that function through fees. This
final rule establishes a level of fees
sufficient to recover the full cost of
operating USCIS, including the antifraud functions of FDNS. The rule has
not been amended to include other costs
that could legally be charged or to
exclude any costs of operating USCIS.
5. Office of Management and Budget
Circulars
Several commenters also suggested
that DHS’s authority to promulgate fees
is limited by Office of Management and
Budget (OMB) Circular No. A–25, which
‘‘establishes Federal policy regarding
fees assessed for Government services’’
and defines the term ‘‘full cost.’’ OMB
Circular A–25, User Charges, 58 FR
38142 (July 15, 1993), available at
http://www.whitehouse.gov/omb/
circulars_a025. See FPC v. New England
Power Co., 415 U.S. at 349–51. DHS
agrees that OMB Circular A–25 sets
federal policy and provides guidance for
user fees under the IOAA, 31 U.S.C.
9701, discussed above, but disagrees
that Circular A–25 applies under INA
section 286(m), 8 U.S.C. 1356(m). The
guidance of OMB Circular A–25 is
internal Executive Branch policy
guidance, direction from the Office of
Management and Budget to the agencies
on the subject of user fees under the
IOAA.
As the Circular explains, OMB issued
it pursuant to ‘‘Title V of the
Independent Offices Appropriations Act
of 1952 (31 U.S.C. 9701)’’ (IOAA). See
Circular A–25, section 3 (‘‘Authority’’).
The Circular goes on to explain the
relationship between the Circular’s
provisions and the IOAA, and between
the Circular’s provisions and other fee
statutes: ‘‘The provisions of the Circular
shall be applied by agencies in their
assessment of user charges under the
IOAA. In addition, this Circular
provides guidance to agencies regarding
their assessment of user charges under
other statutes.’’ See id., section 4b.
Thus, as the Circular explains, its
provisions are ‘‘guidance to agencies
regarding their assessment of user
charges under other statutes.’’ One of
these ‘‘other statutes’’ is INA section
286(m), 8 U.S.C. 1356(m). Accordingly,
with respect to the implementation of
INA section 286(m), Circular A–25 has
the status of internal Executive Branch
policy guidance. See HHS v. FLRA, 844
F.2d 1087, 1095–96 (4th Cir. 1988) (en

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banc) (OMB Circular A–76 is internal
Executive Branch guidance). As Circular
A–25 is internal Executive Branch
guidance with respect to the
establishment of fees under INA section
286(m), the Circular does not impose
legally-binding (i.e., judicially
enforceable) limits on DHS’ authority to
promulgate fees under section 286(m).
See HHS v. FLRA, id. (as internal
Executive Branch guidance, Circular
A–76 is not judicially enforceable).
One commenter stated that OMB
Circular A–25 requires USCIS to
identify the costs for each service and
directly match those costs to the fee
charged. The commenter suggested that
the expenses for operating USCIS
included in the calculation of costs that
must be covered from the collection of
fees exceeded what was appropriate.
The commenter suggested that USCIS
expenses recovered and fees paid must
relate to the specific service, and that
DHS is not authorized to include costs
that are unrelated or only tangentially
related to the cost of providing the
services. For example, the commenter
suggested that DHS is not authorized to
recover with fees the costs of the SAVE
and E-Verify programs, or expenses
related to anti-fraud, law enforcement,
and national security efforts.
As clearly stated in the proposed rule,
DHS begins its fee process, consistent
with OMB Circular A–25, by engaging
in activity-based costing (ABC). See 75
FR 33445, 33448. USCIS adds to the
ABC model result the necessary amount
for overhead and other costs not driven
by the cost of services. See id. This is
consistent with full cost recovery. The
term ‘‘full cost’’ used in INA section
286(m), 8 U.S.C. 1356(m), means the
costs of operating USCIS, less any
appropriated funding. DHS makes
adjustments based on Administration
policy within its discretion under the
INA. See 75 FR 33445, 33448. Thus, the
fees established in this rule are
necessary, rational, and reasonable, and
comply with the INA and applicable
guidance. The decision to structure
USCIS fees as proposed and in this final
rule is the culmination of an
administrative process that conforms
with Administration policy. As stated in
the proposed rule, USCIS has
historically been funded almost
exclusively by fees. See 75 FR 33445,
33447. Also, the INA provides authority
to charge fees that are broader than the
IOAA and Circular A–25.
DHS understands the desire of the
commenters. DHS’s interpretation of
INA section 286(m) should not be
construed to mean that the
Administration believes there is no
merit in relating fees to specific services

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rendered. The President has proposed to
remove $259 million from the USCIS fee
base through appropriations for FY2011.
Congressional support for the first stage
of this process is evidenced by the
FY2010 appropriation. The process by
which increased linkage can be made
depends upon the Congress. While DHS
agrees with the commenter that certain
costs ‘‘should’’ be borne by
appropriation, until Congress provides
that appropriation, these costs must be
borne by the fee structure under INA
section 286(m), 8 U.S.C. 1356(m). DHS
has already begun preparing for its next
biennial immigration fee review. The
next fee review will consider further
refinements to how immigration fees are
determined, including the level by
which fees match assignable, associated,
and indirect costs.
6. Accounting Standards
Commenters implicitly questioned
whether DHS and USCIS complied with
appropriate accounting standards in the
proposed fee rule. The proposed fee rule
and this final fee rule reflect DHS
conformity with the requirements of the
Chief Financial Officers Act of 1990
(CFO Act), 31 U.S.C. 901–03, that each
agency’s Chief Financial Officer (CFO)
‘‘review, on a biennial basis, the fees,
royalties, rents, and other charges
imposed by the agency for services and
things of value it provides, and make
recommendations on revising those
charges to reflect costs incurred by it in
providing those services and things of
value.’’ Id. at 902(a)(8).
Like OMB Circular A–25, the cost
accounting concepts and standards
developed by the Federal Accounting
Standards Advisory Board (FASAB)
define ‘‘full cost’’ to include: ‘‘(1) The
costs of resources consumed by the
segment that directly or indirectly
contribute to the output, and (2) the
costs of identifiable supporting services
provided by other responsibility
segments within the reporting entity,
and by other reporting entities.’’ Federal
Accounting Standards Advisory Board,
Statements of Financial Accounting
Concepts and Standards:
Pronouncements as Amended 437 (June
2009). To determine the full cost of a
service or services, FASAB identifies
various classifications of costs to be
included and recommends various
methods of cost assignment. As
generally accepted accounting
principles, FASAB’s standards are
conventions of federal financial
accounting, not statutory or regulatory
requirements. As the Supreme Court
pointed out in Shalala v. Guernsey
Memorial Hospital, ‘‘Financial
accounting is not a science. It addresses

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many questions as to which the answers
are uncertain and is a ‘process [that]
involves continuous judgments and
estimates.’ ’’ 514 U.S. 87, 100 (1995)
(citing, R. Kay & D. Searfoss, Handbook
of Accounting and Auditing, ch. 5, p. 7–
8 (2d ed. 1989)).
As explained above, DHS applies the
discretion provided in INA section
286(m), 8 U.S.C. 1356(m), in a manner
consistent with its responsibilities for
operation of government and the goals
of providing immigration services and
transparent accounting. DHS applies
that judgment to: (1) Develop activitybased costing to establish basic fee
setting parameters, (2) apply
administrative judgment to allocate
overhead and other indirect costs, and
(3) apply policy judgments to effectuate
the overall Administration policy. The
‘‘full’’ cost to the Government of
operating USCIS, less any appropriated
funding, has been the historical total
basis for establishing the cost basis for
the fees, and Congress has consistently
recognized this concept in its annual
appropriations. This final rule,
therefore, reflects the authority granted
to DHS by INA section 286(m) and other
statutes.
In sum, DHS disagrees with the
commenters’ assertions that DHS has
exceeded its authority. DHS has
implemented the requirements of INA
section 286(m) appropriately and has
made no changes in the final rule in
light of these comments.

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B. Relative Amount of Fees
A number of commenters argued that
the proposed fees were too low, while
others thought the fees were too high.
Some expressed general concerns about
immigration levels and stated that a fee
increase would reduce the number of
people seeking immigration benefits.
Others argued that the fees were too
high, especially when filing for families,
and were a barrier to family unification.
Many commenters cited the general
state of the economy as a reason to delay
fee increases.
1. Recovery of Additional Costs
Some of the commenters who agreed
with fee increases asserted that fees
should be high enough to cover all
USCIS costs related to the processing of
immigration benefits so that taxpayers
are not asked to pay for someone
entering, residing, or seeking
immigration services in the United
States. Some commenters favored
increasing fees for immigration benefit
requests filed by businesses. Other
commenters supported a fee increase
specifically for the purpose of
improving customer service. Several

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commenters suggested that fees should
not be based on USCIS costs, but on the
value of the benefit received by the
applicant (e.g., United States
citizenship). These commenters
expressed the view that immigration
benefits are highly valuable and worthy
of special consideration. Other
commenters suggested that increasing
specific fees, such as for an Application
to Extend/Change Nonimmigrant Status,
Form I–539, instead of implementing
their proposed fee reduction, would
mitigate other fee increases.
Filing fees established under this rule
are higher than the current fees but are
based only on the estimated relative
costs associated with processing
immigration benefit requests and other
costs of operating USCIS. Although a
number of commenters suggested that
USCIS increase fees further, USCIS fees
are based on the relative identifiable
costs associated with providing each
particular benefit or service in
adherence with government-wide fee
setting guidelines in OMB Circular A–
25, the CFO Act, and FASAB guidance.
Filing fees do not function as tariffs,
generate general revenue to support
broader policy decisions, or like fines to
deter unwanted behavior. DHS has
maintained the Application for
Naturalization, N–400, fee at its current
level to avoid any possibility of
providing a disincentive for people to
apply for naturalization. In addition,
DHS has provided fee exemptions of
certain fee based on humanitarian
grounds and the ability to request a
waiver of certain fees based on financial
considerations, so that certain
populations do not choose to not
request benefits to which they may be
entitled because of the fee. Besides
those policies, filing fees are not used to
favor businesses, families, geographical
areas, influence larger public policy in
favor of or in opposition to immigration,
limit immigration, support broader
infrastructure, or impact costs beyond
USCIS.
DHS designed this rule to establish
fees sufficient to reimburse the costs of
processing immigration benefit requests
and the related operating costs of
USCIS. While USCIS has authority to
collect fees for broader governmentwide costs of administering the United
States immigration system, DHS has
chosen to structure the fees to recover
only the projected full operational cost.
USCIS believes that this decision is
consistent with broader Administration
policy on user fees and the intent of
Congress in the enactment of, and
amendments to, INA section 286(m), 8
U.S.C. 1356(m). Accordingly, DHS has

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not changed its proposed fees based on
these comments.
2. Proposed Fees Are Unreasonably
High
A number of comments opposed the
proposed fee increases in general terms
or highlighted particular immigration
benefit requests and argued that the
proposed fee increases would effectively
exclude aliens generally, or groups of
aliens, from immigration benefits and
services. Some suggested that fee
increases send the wrong message to
people who are attempting to comply
with the immigration benefit process
and United States immigration laws,
and that higher fees may discourage
legal immigration while encouraging
aliens to attempt to enter the United
States and work illegally. Other
commenters questioned how DHS could
raise fees again in light of the 2007 fee
increase.
a. Barrier to Family Reunification.
Some commenters asserted that the
fees caused an undue burden on
families seeking to be reunited or
maintain legal status. Commenters
mentioned the burden caused when
multiple applications or petitions must
be filed for family members.
USCIS understands the concerns of
these commenters and their desire for
families to remain intact while
benefiting from the advantages of U.S.
lawful residence and citizenship.
United States immigration laws and
policy generally favor immigration of
families by giving preference to certain
immigrants who are related to an
immigrant or United States citizen.
USCIS understands that family-based
applications and petitions could involve
multiple requests and thus multiple
fees, depending on the relationships and
family size. USCIS filing fees are usually
a relatively small portion of the overall
cost of travel, legal expenses, relocation,
and other expenses incurred in
immigrating to the United States. In
addition, since fees provide the capacity
necessary for USCIS to do the work
associated with the filing, when fees do
not fully recover costs USCIS is unable
to maintain sufficient capacity to
process the work. This diminished
capacity could significantly delay
immigration, an impact which can be far
more of a burden on a family than the
proposed change in filing fee. In any
event, USCIS does not believe that the
increases made in this rule will
significantly influence a decision of a
family member to petition for a family
member to join him or her in the United
States. As a result, no changes are made

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in the final rule as a result of these
comments.

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b. Fee Increases Reduce the Number of
Filers.
Many commenters stated that fee
increases would reduce the number of
filers and curb immigration to the
United States. There are many complex
variables that influence the demand for
immigration benefits including: the
economy, Congressional policy debates,
state legislative actions, business cycles,
and benefit fees. Obviously, benefit fees
only represents one of these
determinants. The commenters did not
provide reference data or specifically
articulate how benefit fees might impact
filing volume. Further, DHS did not
study the ramifications of raising this
fee, as the purpose of this rulemaking is
to set fees to recover costs.
Commenters also touched on the
larger issues of immigration policy that
aliens should be encouraged to
immigrate to the United States. As noted
above in relation to the opposite
position, the purpose of the fee schedule
is not to establish broad immigration
policy or induce individuals to
immigrate to the United States, but to
recover the costs necessary to operate
USCIS. Accordingly, DHS did not adjust
the fee schedule in response to these
comments in this final rule.
c. Income-Based Fee Structure.
A number of commenters suggested
that USCIS should base fee levels on the
applicant’s or petitioner’s ability to pay
or status as an employer. Under a
system of full cost recovery through
fees, this approach would mean lower
fees for some based on income but
higher fees for other applicants
irrespective of how much it actually
costs USCIS to adjudicate their
application.
Adjusting fee levels based on income
would be administratively complex and
would require higher costs to
administer. A tiered fee system would
require staff dedicated to income
verification and necessitate significant
information system changes to
accommodate multiple fee scenarios.
The costs and administrative burden
associated with implementing such a
system would be unreasonable and
would cause additional fee increases.
USCIS therefore does not support such
a system at this time. DHS has not
changed the rule in response to these
comments.
d. Supplementary Costs to Applicants
and Petitioners.
Many commenters suggested that
increasing fees would adversely impact

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the applicants’ and petitioners’ ability to
pay for additional services, such as legal
fees or notaries, and, therefore, DHS
should reduce fees. These comments
included specific comments that an
increase in fees would reduce the ability
of applicants and petitioners to pay fees
charged by non-profit organizations
representing the applicants and
petitioners before USCIS and other
immigration components of DHS, and
before immigration judges and the
Board of Immigration Appeals within
the Department of Justice.
DHS understands the comments, but
has made no change to the rule as a
result of them. Other regulations
address the nominal costs that nonprofit accredited organizations may
charge. See 8 CFR 292.2(a)(1). If those or
other costs adversely impact the private
organizations, it is not a function of
DHS to ensure that the organizations
have sufficient funds.
3. Comments on Specific Fees and
Adjustments
While many commenters opposed the
fee increase in general, some
commenters took issue with increases to
specific fees and fees for certain
categories of applicants and petitioners.
Commenters also suggested that some
fees be increased in order to reduce
increases to other fees or to reduce other
fees.
a. Student Employment Authorization.
Some commenters requested that fees
for certain classes of non-immigrants,
such as students, be reduced.
Specifically, commenters noted that the
filing fee for an Application for
Employment Authorization, Form I–
765, or employment authorization
document (EAD) is particularly
burdensome to students who may only
have seasonal employment. These
commenters expressed significant
concerns about the fee’s effect on the
limited financial capability of most
international students in F–1 visa status
and their ability to apply for work
authorization when they choose to
participate in the Optional Practical
Training (OPT) program.
For international students, F–1 status
allows a student to remain in the United
States as long as he or she is a properly
registered full-time student. See INA
section 101(a)(15)(F)(i), 8 U.S.C.
1101(a)(15)(F)(i); 8 CFR 214.2(f)(5).
Under F–1 status and subject to certain
conditions and restrictions, a student
may work part-time in an on-campus job
and in a ‘‘practical training’’ job directly
related to the student’s field of study for
12 months during or after the
completion of studies. Id. The OPT

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program provides F–1 students with an
opportunity to apply knowledge gained
in the classroom to a practical work
experience off campus. The maximum
period of OPT is 29 months for an F–
1 student who has completed all course
requirements for a degree in a science,
technology, engineering, or mathematics
field and has accepted employment
with an employer enrolled in the DHS
E-Verify employment verification
program and 12 months for all other F–
1 students who have completed all
course requirements for a degree. See 8
CFR 214.2(f)(10)(ii).
The United States places a very high
value on attracting international
students and scholars to this country.
The contributions to the academic
experience for all students provided by
the existence of a diverse international
student body are invaluable. The
resources devoted to delivering
immigration benefits to deserving
students show the importance of this
goal to USCIS. Nonetheless, substantial
resources are expended by USCIS for
adjudication of the student’s eligibility
for employment documents and the fee
for an EAD was established based on
those needs. While USCIS
acknowledges that the income provided
by OPT is helpful to the students, the
emphasis of OPT is on training students
in their fields of study, not as a source
of income. Moreover, EAD applicants
may request an individual fee waiver
based on inability to pay. Fee waivers
should be rare for students because the
cost of applying for such a work
authorization is a small fraction of the
total costs of a student living in the
United States, including tuition, room,
and board, and international travel to
and from his or her country of origin.
USCIS will continue to charge the full
fee based on the effort and resources
expended to process this benefit for
EAD applications not granted a fee
waiver. No changes to the regulation
have been made as a result of these
comments.
b. Entertainers, Athletes, and Other
Individuals With Extraordinary Talent.
Numerous commenters objected to the
fee increase for nonimmigrant petitions
for admission of entertainers, athletes,
and other individuals with
extraordinary talent to work in the
United States on a temporary basis (O
and P visas). Some commenters cited
issues with booking performances
utilizing these performers and noted the
inability of USCIS to process the visa
requests within the 14 days allotted by
statute for petitions not needing
additional supporting documentation.
See INA section 214(c)(6)(D), 8 U.S.C.

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srobinson on DSKHWCL6B1PROD with RULES4

1184(c)(6)(D). Commenters opined that
they faced the burden of utilizing
premium processing to ensure artist
availability. Many commenters strongly
opposed the increase of the fee and the
premium processing fee if
improvements in the quality of the visa
process were not made, to include
meeting the 14-day processing time
requirement. Some commenters
requested that USCIS treat non-profit
performing arts organizations differently
than for-profits, suggesting lower fees
for non-profits in consideration of their
resource means relative to those of forprofit entities. USCIS understands the
concerns of commenters and has made
reaching the 14-day adjudication
process time a goal for O and P visa
petitions. USCIS is currently meeting
that goal at both service centers that
process O and P petitions.
Many commenters noted difficulty
managing and responding to USCIS
requests for evidence (RFEs). A
commenter suggested that USCIS
develop a pre-certification process for
employers filing multiple petitions to
prevent them from having to address the
same RFE on multiple occasions. USCIS
appreciates these recommendations.
USCIS is exploring a registration
process for employment-based visa
petitioners and is developing policies
and training to address these concerns,
but these matters are outside of the
context of this fee rule.
DHS will not, at this time, implement
changes to the USCIS fee system that
attempt to account for different levels of
income or, in this case, organizational
resources. Such a change would require
additional administrative complexity,
higher costs and, consequently, higher
fees for some benefits.
c. Adoption.
One commenter requested that USCIS
reduce fees related to overseas adoption.
USCIS acknowledges the sensitive
nature of these petitions. USCIS
proposed using its fee setting discretion
to adjust certain ‘‘low volume’’
application and petition fees based on
such equitable considerations and
capped the fee for a Petition to Classify
Orphan as an Immediate Relative, Form
I–600; the Application for Advance
Processing of Orphan Petition, Form I–
600A; the Petition to Classify
Convention Adoptee as an Immediate
Relative, Form I–800; and the
Application for Determination of
Suitability to Adopt a Child from a
Convention Country, Form I–800A. 75
FR 33445, 33461. Under the fee rule
methodology, the calculated fee for
these forms would have been as much
as $1,455—an increase of more than

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$785 or 100%. This fee level is due to
the complexity of orphan petition
adjudications, which often require
several background checks and home
visits, knowledge of adoption laws in
multiple jurisdictions and foreign
countries, and a thorough review of
supporting documentation and
evidence. However, USCIS believes that
it would be contrary to public interest
to impose a $785 fee increase on
potential adoptive parents. To reduce
this burden on adoptive parents, DHS
lowered the fee increase to $50, or a
little more than 7%. Any further
reductions would shift an inordinate
amount of these costs to other
immigration benefit request applicants
and petitioners. No changes to the rule
have been made as a result of this
comment.
d. Entrepreneurs.
A few commenters claimed that the
fee for the Immigrant Petition by Alien
Entrepreneur, Form I–526, is
excessively high. A commenter stated
that USCIS has not shown why the
percentage increase for the Immigrant
Petition by Alien Entrepreneur (for EB–
5 status) filing fees should be higher
than others, especially when compared
to the Petition by Entrepreneur to
Remove Conditions, Form I–829.
Another commenter added that
petitions to remove conditions generally
should take less time to adjudicate than
the original entrepreneur petition,
which has a lower proposed fee.
One commenter incorrectly calculated
the fee increase for the Form I–526 as
14%. The actual percent increase for the
Form I–526, from $1,435 to $1,500, is
only 4.5%, well below the weighted
average increase of 10%. Contrary to the
commenter’s statement, the percent
increase for the I–526 is not higher than
other benefit fee increases. The
Immigrant Petition by Alien
Entrepreneur and Petition by
Entrepreneur to Remove Conditions are
two of the more labor intensive petitions
that USCIS processes, as evidenced by
the high completion rates (i.e., rate of
work time) in the proposed rule. 75 FR
33445, 33471. As stated in the proposed
rule, the more complex an immigration
or naturalization benefit application or
petition is to adjudicate, the higher the
unit costs assigned to that task by the
activity-based cost model. 75 FR 33445,
33459, 33470. Although the completion
rates for the entrepreneur petition and
the petition to remove conditions are
approximately the same, the fees are
substantially different because the costs
are being spread across a smaller
number of petitions, resulting in a
higher unit cost for the petition to

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remove conditions. 75 FR 33445, 33467.
USCIS explained this reasoning in the
proposed rule and has not modified the
rule in response to the comments.
e. Refugee Travel Documents.
One commenter asserted that both the
current fee and the proposed fee
increase for the refugee travel document
conflicts with United States obligations
under Article 28 of the 1951 U.N.
Convention Relating to the Status of
Refugees. The United States is a
signatory to the 1967 U.N. Protocol
Relating to the Status of Refugees (‘‘the
Refugee Protocol’’), which, by reference,
adopts articles 2 through 34 of the 1951
Convention. See United Nations
Protocol Relating to the Status of
Refugees, Jan. 13, 1967, 19 U.S.T. 6223,
606 U.N.T.S. 267. Article 28 of the 1951
Convention provides that state parties
are obligated to issue documents for
international travel to refugees lawfully
staying in their territory and that ‘‘the
provisions of the Schedule to this
Convention shall apply with respect to
such documents.’’ The referenced
Schedule provides at paragraph 3 that
‘‘[t]he fees charged for issue of the
document shall not exceed the lowest
scale of charges for national passports.’’
Id.
After carefully considering this
comment, DHS has determined that the
fee for the Refugee Travel Document
should be lowered to match the fee
charged for the issuance of passports.
The Department of State passport fee for
an adult over the age of 16 is $110 plus
a $25 execution fee. For an applicant
under the age of 16, the fee is $80 plus
a $25 execution fee. Accordingly, this
final rule reduces the fee for the filing
of a Form I–131 for a Refugee Travel
Document to $135 for an adult age 16
or older, and $105 for a child under the
age of 16. USCIS will continue to charge
the $85 biometrics fee since that fee is
intended to cover the costs of a service
that is separate from the issuance of the
refugee travel document. The fee for
other applications for advance parole
and travel documents will be $360 as
calculated in the model. See 8 CFR
103.7(b)(1)(i)(M).
4. Fee Decreases
A number of commenters questioned
the rationale of implementing fee
decreases. Some commenters suggested
that fees that are set to decrease should
instead be increased in order to mitigate
the impact of other fee increases. A few
commenters opined that only
immigration benefit requests filed by
employers should increase, while those
filed by individuals should not,
reasoning that employers can better

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afford fee increases. On the other hand,
many commenters argued against
increasing fees for petitions filed by
employers, stating that increasing the
fees for those petitions may increase
reluctance by employers to hire nonU.S. citizens. Also, a number of
commenters expressed appreciation for
the fee decreases.
USCIS believes that it is important
that fees be based as much as possible
on the relative identifiable costs
associated with providing each
particular benefit or service to follow
the spirit of government-wide fee setting
guidelines in OMB Circular A–25, the
CFO Act, and FASAB guidance. USCIS
uses an activity-based cost model to
determine the appropriate fee for each
immigration benefit request. This model
considers a variety of factors such as
budgetary costs, the number of
anticipated requests, the time necessary
to adjudicate the request, the locations
that receipt and complete the request
and their associated resources, and the
number of fee waivers or exemptions
that may be granted for each form type.
Over time, these factors may change
resulting in a lower calculated fee for
certain requests. Additionally, to
improve transparency and account for
the impact of investments in
technology, USCIS will consider
incorporating a productivity measure
into the next fee rule that will capture
the outcomes of these investments on
USCIS operations. Greater efficiency in
processing, resulting in reduced
adjudication times or fewer resource
requirements, may also lead to fee
reductions.
USCIS must ultimately implement a
fee change that is based primarily on
cost. In instances where costs are
shifted, USCIS must ensure that the
logic supporting these shifts is applied
in a fair and consistent manner. It
would not be fair for USCIS to prevent
an immigration benefit request from
realizing a legitimate fee decrease in
order to reduce costs to other applicants
and petitioners. Shifting an inordinate
amount of costs to petitions filed by
employers would also be unfair. USCIS
will continue to realize fee decreases as
they occur.
C. Fee Waivers and Exemptions
Statutes and policy exempt certain
classes of applicants and petitioners
from paying fees, and waive some fees
for individuals who demonstrate an
inability to pay. USCIS received many
comments concerning the fee exemption
and waiver process. Most commenters
thought that expansion of the
immigration benefit requests available
for fee waivers would promote legal

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immigration. Some commenters noted
that the fee waiver process lacked
standardization and that individuals
faced challenges when applying for fee
waivers. Other commenters suggested
that USCIS offer fee waivers for
immigration benefit requests that are not
currently waivable, or exempt
additional classes of applicants and
petitioners from certain fees. Others
suggested that fees be raised to shift
costs to particular kinds of applicants to
reduce increases or reduce current fees
for certain other applicants.
Under the new fee structure, USCIS
anticipated waiving fees for a certain
percentage of applicants. USCIS also
provides for a number of exemptions,
where fees are not charged because a
large percentage of applicants would
clearly be unable to pay. These
exemptions include a range of
humanitarian and protective services,
such as refugee and asylum processing,
and other related services. USCIS also
anticipates that it may allow a type of
case to request a per case waiver of the
fees based on economic necessity, such
as in the case of an earthquake,
hurricane, or other natural disaster
affecting a localized population of
people who may file requests, although
all others who file the same kind of
application must pay the fee.
To the extent not supported by
appropriations, the cost of providing
free or reduced services must be
transferred to all other fee-paying
applicants. That is one reason why
USCIS is relatively conservative with
respect to intentionally transferring
costs from one applicant to others
through fee waivers. However, various
comments to the proposed fee rule
suggested expanding the range of
applications and petitions for which we
would consider a fee waiver.
1. Asylee Benefits and Status
Adjustment
USCIS received some comments
requesting exemption from adjustment
of status fees based on having
previously been granted asylum, citing
the general inability to pay of this
population. USCIS currently allows
asylees to apply for a fee waiver when
applying for adjustment of status. 8 CFR
103.7(c)(5)(ii). See also new 8 CFR
103.7(c)(4)(iii). Asylees are not required
to pay filing fees for employment
authorization documents, providing
them with a means to become gainfully
employed and earn wages to cover the
cost of adjustment. 8 CFR 103.7(c).
Granting an exemption to adjustment of
status fees for this class of immigrant
will increase the fees paid by other
applicants. USCIS will continue to offer

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fee waivers to eligible asylee adjustment
of status applicants. USCIS will
undertake a comprehensive review of
policies related to refugees and asylees;
however, DHS is providing no fee
exemption in the final rule.
2. Expansion of Fee Waivers and
Exemptions
A number of commenters requested
that more immigration benefit requests
be available for fee waivers or be exempt
from filing a fee. Commenters suggested
that a fee waiver be generally available
for travel documents, employment
authorization documents, and the
immigrant visa, among other suggested
forms.
a. Travel and Employment
Authorization Documents and
Immigrant Visas
The Immigration and Nationality Act,
as amended, prohibits DHS, the
Department of State (DOS), and
immigration judges from admitting or
granting adjustment of status to
permanent resident to any alien who is
likely to become a public charge at any
time. See INA section 212(a)(4), 8 U.S.C.
1182(a)(4). In addition, applicants and
petitioners are required to complete
affidavits of support declaring that the
recipients of certain benefits will be
self-supported (or supported by the
petitioner) and will not require public
funding for support. This need to prove
a certain level of financial wherewithal
in order to qualify for a certain benefit
would be incongruous with the ability
to extend fee waiver authority to those
benefit requests. A fee waiver could
conflict with the requirement that an
applicant or beneficiary be eligible for
the service requested.
DHS has expanded fee waivers and
exemptions to additional immigration
benefit requests and classes of applicant
over the last few years. See, for example,
Adjustment of Status to Lawful
Permanent Resident for Aliens in T or
U Nonimmigrant Status, 73 FR 75540
(Dec. 12, 2008) (allowing a fee waiver
for Form I–485 and requests for waivers
of inadmissibility). In this final rule,
DHS has authorized the USCIS Director
to approve and revoke exemptions from
fees, or provide that the fee may be
waived for a case or class of cases that
is not otherwise provided in 8 CFR
103.7(c). New 8 CFR 103.7(d). USCIS
believes that these adjustments will
ensure that fee waivers are applied in a
fair and consistent manner, that aliens
who are admitted into the United States
will not become public charges, and that
USCIS will not shift an unreasonable
amount of costs to other fee-paying

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applicants to recover funding lost due to
fee waivers.
DHS has decided not to authorize fee
waivers where such a waiver is
inconsistent with the benefit requested.
For example, several commenters
suggested that USCIS should consider
allowing fee waivers for reentry permits,
refugee travel documents, and advance
parole when an alien wants to travel
abroad. In essence, this argument
suggests that although the applicant is
prepared to incur the cost of traveling
internationally, USCIS should consider
waiving the application fee and instead
transfer that cost to others. Expanding
fee waivers into such areas moves away
from clear economic necessity to merely
choosing to provide one applicant with
an advantage over another.
A number of commenters suggested,
however, that USCIS allow fee waiver
requests for Application for Travel
Document, Form I–131, in cases of
humanitarian parole. DHS’s experience
with the 2010 Haitian earthquake relief
efforts has shown that many recipients
of humanitarian parole are worthy of
consideration of a fee waiver. DHS
agrees that some applicants could be of
limited means and the fee may be
particularly burdensome to this
population. Thus, as suggested by the
commenters, DHS has decided to revise
the final rule to add requests for
humanitarian parole to the list of forms
that are eligible for a fee waiver upon a
showing of the inability to pay. See 8
CFR 103.7(c)(3)(iv). In addition, DHS
encourages those who believe that they
have a sufficiently sympathetic case or
group of cases in any type of benefit
request to submit a request to their
USCIS local office for a waiver under 8
CFR 103.7(d).
b. Waiver Eligibility for Notices of
Appeal or Motions
DHS is adding a provision to the fee
for the Notice of Appeal or Motion,
Form I–290B, to provide that the fee to
file an appeal or motion to reopen
following a denial of an immigration
benefit request that is exempt from a fee
or the fee was waived may be waived by
USCIS upon a showing by the applicant
or petitioner of inability to pay. See
New 8 CFR
103.7(b)(1)(i)(M)(v)(c)(ii)(3)(vi). DHS has
made several immigration benefit
requests exempt from fees due to
humanitarian or other considerations.
As a result of comments expressing
concern about the cost of appeals, DHS
has decided that it is appropriate to
allow the applicant or petitioner who
received a fee exemption or was granted
a fee waiver for the underlying
application or petition to request that

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the fee to appeal a denial of such form
be waived. DHS decided that it was not
appropriate to exempt all appeal and
motion fees for denials of fee exempt
requests because fee exemptions are
provided based on a number of
considerations, and a fee waiver is a
decision based on financial status. DHS
believes it is appropriate to provide that
the fees may be waived in the case of
financial hardship.
c. Military Naturalizations
Similarly, DHS is also adding a
provision to exempt members or
veterans of the U.S. Armed Forces from
paying the fee for Request for Hearing
on a Decision in Naturalization
Proceedings, Form N–336. See New 8
CFR 103.7(b)(1)(WW). These individuals
are currently exempt from paying the
Application for Naturalization, Form N–
400, fee. As a result, those members or
veterans of the U.S. Armed Forces
whose N–400s have been denied will
often file another Application for
Naturalization for free rather than file an
appeal using the proper form (Form N–
336) to avoid the fee associated with
that appeal. DHS is making this change
to correct this anomaly and to conform
to the intent of the National Defense
Authorization Act of 2004, which
provides for free naturalization for
military members. See INA section
328(b), 8 U.S.C. 1439(b)(4). DHS is also
providing that members of the military
are exempt from paying the fee for an
Application for Certificate of
Citizenship, Form N–600, to conform to
the same intent. See New 8 CFR
103.7(b)(1)(i)(AAA).
d. Arrival-Departure Records
Several commenters suggested
allowing a fee waiver for an Application
for Replacement/Initial Nonimmigrant
Arrival-Departure Document, Form I–
102, when filed by a refugee, asylee, a
victim of trafficking, and others whose
immigration status is based on
humanitarian grounds. USCIS does
provide initial documentation to such
individuals without additional charge.
Fees are currently charged only to
replace a document or to change a
document where the individual changes
his or her name. 8 CFR 103.7(b)(1)(H).
USCIS does not believe that expanding
fee waivers to such replacements is an
appropriate cost transference to other
applicants. Hardship cases may submit
a request to their local office for a fee
waiver under 8 CFR 103.7(d). No
changes have been made to the rule as
a result of these comments.

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3. Standardization of the Fee Waiver
Process
Some commenters cited difficulty in
navigating the fee waiver process.
USCIS agrees that the fee waiver process
would benefit from standardization.
DHS has revised 8 CFR 103.7(c) to be
easier to read, understand, and follow in
order to bring clarity and consistency to
the fee waiver process. In addition,
USCIS has proposed a new form to
facilitate the fee waiver process—
Request for an Individual Fee Waiver,
Form I–912. See Agency Information
Collection Activities: Form I–912; New
Information Collection; Comment
Request, 75 FR 40846 (July 14, 2010).
USCIS consulted with, and received
valuable input from, stakeholders and
community-based organizations in
developing Form I–912. Form I–912 was
available for public comment at
www.regulations.gov until September
13, 2010. The new form will clearly
outline the requirements and
documentation necessary to support a
request for a fee waiver. This form can
be used to submit fee waiver requests
for eligible applications, petitions, and
biometric services. USCIS intends to
make it easier to request a fee waiver by
regulating this process and expects to
finalize Form I–912 promptly.
4. Commonwealth of the Northern
Mariana Islands (CNMI) Transitional
Worker
One commenter requested a reduction
in fees or a fee waiver for the adjustment
of status of family members within the
two-year transition period of the
implementation of the Consolidated
Natural Resources Act of 2008, Public
Law 110–229, 122 Stat. 754 (2008).
Fee waivers are not generally
available for employment-based
immigration benefit requests. Due to the
unique circumstances present in the
CNMI, however, DHS published an
interim rule that provided for a separate
Form I–129 called the I–129CW,
Petition for a Nonimmigrant Worker in
the CNMI, and provided in that rule that
USCIS adjudicators may waive the fee
for Form I–129CW in certain
circumstances if the petitioner is able to
show inability to pay. See 8 CFR
103.7(c)(5)(i), Commonwealth of the
Northern Mariana Islands Transitional
Worker Classification, and 74 FR 55094
(Oct. 27, 2009). DHS has also included
that waiver authority in this rule. See 8
CFR 103.7(b)(1)(i)(J); 8 CFR
103.7(c)(3)(iii). That authority will not
take effect, however, until DHS has
considered comments on the interim
rule and published a final rule. Thus,
the comment on fee treatment specific

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to the CNMI has been entered into the
docket of that rule, and will be
considered in drafting that final rule as
well as other rules that will implement
the CNRA. Nevertheless, due to the
inherent inconsistency between
sponsoring an alien for employment and
being unable to pay the requisite fee for
that sponsorship, USCIS expects that
the situations when an employer would
adequately demonstrate an inability to
pay will be extremely limited.
D. Naturalization
USCIS received some comments
suggesting that the naturalization fee be
raised to an arbitrarily higher amount to
reflect the value of U.S. citizenship.
Some commenters praised USCIS for
not increasing the fee for naturalization,
while other commenters requested that
the fee be lowered even more, citing the
fee as a deterrent to naturalization.
USCIS recognizes the importance of
immigrant integration and seeks to
promote citizenship. At the same time,
USCIS must balance costs and ensure
that applicants and petitioners are not
burdened with excessive surcharges and
subsidies. Additional reductions to the
naturalization fee would result in
increases to other immigration benefit
fees; therefore USCIS will keep the fee
at its current level of $595. Accordingly,
DHS has determined that the fee for
Form N–400, Application for
Naturalization, will remain at its current
level of $595, even though this fee
should have increased under the fee
rule methodology.
A few commenters questioned the
increase to Forms N–600/600K,
Applications for Certificates of
Citizenship. The commenters contended
that in the case of children, USCIS will
have already performed the bulk of the
adjudicative work for these applications
when USCIS processes the parent’s
Application for Naturalization.
Commenters stated that the N–600
requires very little adjudicative time to
process. While some applications may
be simple, the type of research required
for each applicant may be complex and
the level of research required will vary
based on the individual circumstances.
USCIS is required to establish whether
the Application for Naturalization was
appropriately granted and the time
required to research and verify the
validity of that application requires
significant resources. In addition, this
application is not limited to those
eligible due to a parent’s naturalization,
and cases involving derivative
acquisition of citizenship can
sometimes be very complex. If USCIS
were to freeze this fee just as it did the
N–400 fee, this change would force

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other fee-paying applicants and
petitioners to subsidize the cost of
processing Applications for a Certificate
of Citizenship. We do not believe that
such a result is justified here.
DHS has decided to make one change
to the fee for Forms N–336 and N–600.
DHS is modifying the fee for a Request
for a Hearing on a Decision in
Naturalization Proceedings (Under
Section 336 of the INA), and an
Application for Certification of
Citizenship, Form N–600, to provide
that there is no fee for such requests
from a member or veteran of the
military. See New 8 CFR
103.7(b)(1)(i)(W) and (AAA). USCIS is
precluded by law from collecting a fee
from members of the military for an
Application for Naturalization under
sections 328 and 329 of the INA. DHS
has determined that it is in keeping with
the Congressional intent in passage of
sections 328 and 329 to show a
preference to members and veterans of
the military in similar proceedings, thus
it is appropriate that these requests for
a certificate if citizenship also be
permitted without fee.
E. Improve Service and Reduce
Inefficiencies
1. Service Improvement and Fees
Many commenters noted lengthy
waiting times to process immigration
benefit requests and highlighted the
need to improve overall customer
service. These comments suggested that,
regardless of whether the proposed fees
were justified, applicants and
petitioners should not be asked to pay
the full fee increase until USCIS
improves service. Others suggested that,
even if fees were increased before
service level improvements were made,
there should be detailed commitments
to service level improvements to ensure
that increased revenues are used to
improve service.
Some comments stated that USCIS
has increased fees before with the
promise of improved services, but never
fully delivered on that promise. As
outlined in the proposed rule and
supporting documentation, USCIS
delivered nearly all of the promised
processing time performance and
deployed most of the projects funded
through resource enhancements in the
2008/2009 fee rule. 75 FR 33445,
33451–33453. USCIS is firmly
committed to continue to improve
operations and service, particularly as
business transformation is deployed
over the next five years.
Some commenters asserted that
USCIS had not improved service since
implementation of the previous fee rule,

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which went into effect on July 30, 2007.
DHS disagrees. USCIS continues to
work on service improvements. USCIS
made substantial progress towards
achieving processing goals over the FY
2008/2009 biennial period. For
example:
• USCIS processed nearly 1.2 million
naturalization requests in FY 2008, 56
percent more than 2007. As of June
2010, there were approximately 299,000
naturalizations cases pending—one of
the lowest levels in the recent history of
USCIS. A surge response plan
implemented in FY 2008 enabled USCIS
to meet nearly all FY 2008/2009 fee rule
processing time reduction goals by the
end of FY 2009.
• USCIS and the Federal Bureau of
Investigation (FBI) effectively
eliminated the National Name Check
Program (NNCP) backlog. NNCP now is
now able to complete 98 percent of
name check requests submitted by
USCIS within 30 days, and the
remaining 2 percent within 90 days.
• USCIS has implemented electronic
adjudication of some cases to help staff
focus attention on more complex cases
where discrepancies have been found.
• USCIS is transitioning to a new U.S.
Department of the Treasury lockbox
provider and away from dispersed
collection points to improve intake
operations and the control and timing of
fee deposits.
Process improvements implemented
over the past several years, as well as
projected productivity increases, are
taken into account in the current fee
review, keeping fees lower than they
might otherwise have been. Future
productivity enhancements are expected
to produce lower costs per unit that will
be reflected in fee adjustments.
Other commenters recommended that
USCIS conduct studies to analyze
processing times at different locations
and shift work to locations that have
demonstrated efficiency in completing
the work. USCIS agrees that it is
important to distribute work to account
for workload and productivity levels.
USCIS continually monitors
performance at its locations and
analyzes resources to ensure that its
Field Offices and Service Centers have
the capacity to process immigration
benefit requests in a timely manner.
USCIS has implemented ‘‘bispecialization’’ of forms at its Service
Centers, which aligns the processing of
most forms at one of two pairs of
Service Centers, such that any
individual form subject to bispecialization is adjudicated at only two
of the four regional Service Centers.
This change increases processing
uniformity and allows the Service

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Centers to improve proficiency in
adjudications. USCIS is also shifting
certain tasks, such as intake, to
centralized locations in order to take
advantage of economies of scale and
develop expertise in processing
methods.
Some commenters requested that
USCIS increase its ability to receive
different forms of payment. USCIS
agrees with these comments and has
deployed credit card processing
machines to all of its Field Offices.
Credit card payment is available for
immigration benefit requests submitted
in-person. Some have suggested that
USCIS expand credit card payments to
immigration benefit requests that are
mailed to USCIS, but USCIS believes
that option could provide a path for
fraud and abuse. USCIS continues to
explore ways to modernize and
streamline fee collection processes.
A number of commenters protested
the increase in the Application to
Replace Permanent Resident Card, Form
I–90. Some commenters offered
anecdotal evidence outlining multiple
instances when a permanent resident
card was not delivered to the recipient.
Commenters opined that it was easier to
pay the I–90 fee again, even though their
cards were not delivered, than to protest
the lack of delivery of the cards. In FY
2008, USCIS developed a secure mail
delivery process referred to as the
Secure Mail Initiative (SMI) whereby reentry permits and refugee travel
documents are delivered via the U.S.
Postal Service Priority (USPS) Mail.
This change allows documents to be
delivered by USPS in two to three days
with delivery confirmation. This year,
the SMI process was expanded to USCIS
locations that receive and re-mail
undeliverable permanent resident cards
and employment authorization
documents. Permanent resident cards
not initially received by recipients are
processed using the SMI. However,
USCIS agrees that permanent resident
card delivery deserves special
consideration. USCIS intends to deliver
all permanent resident cards (initial
deliveries and re-deliveries) through
SMI once revenue is deemed sufficient
to fully support the initiative.
Ultimately, USCIS fees are based on
the processing costs for immigration
benefit requests. Any structural deficit
between costs and fees could create and
accelerate the growth of backlogs and
deteriorate service levels. The proposed
fee adjustments and this final rule
reflect this concern. Thus, while USCIS
addresses the spirit of the comments by
continually searching for ways to
improve its service, no specific changes

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are being made to the final rule to
address these comments.

petitioner, or other individual, is
required to submit fingerprints.

2. Multiple Biometric Data Requests

3. Transformation
A number of commenters noted that
USCIS should not increase fees until
business process reengineering takes
place. Commenters stated that USCIS
should move from a primarily paperbased processing environment to a webbased one. Many commenters called for
simplified processes and more
electronic processing. Commenters also
questioned the management and
viability of USCIS’ current
transformation program.
USCIS agrees that transitioning to
electronic adjudication is an important
priority. USCIS is committed to
improving the efficiency and
effectiveness of its immigration
processing system and will dedicate the
funds and management attention
necessary to complete this task.
Electronic filing is currently available
for seven of the most common benefit
requests, as well as premium processing
service requests. USCIS expects to
deploy the initial increment of its
transformation program by the end of
FY 2011. As one of the Administration’s
High Priority Performance Goals, USCIS
has committed to ensuring that at least
25% of applications will be
electronically filed and adjudicated
using the new transformed integrated
operating environment by FY 2012.
Transforming the paper-based USCIS
adjudication process is crucial to
fundamentally improving USCIS
response to evolving applicant and
petitioner needs and modern
immigration demands. USCIS
transformation is an employee-driven
effort to redefine business processes and
systems and create a more modern,
secure, and customer-focused
organization. For benefit seekers, this
means 24–7 online account access and
real-time updates. For employees and
interagency partners, it means more
efficient case management and
improved information sharing. For the
American public, it means greater
national security due to enhanced risk
and fraud detection capabilities.
Ultimately, transformation will
fundamentally alter the way USCIS does
business and will advance it from a
paper-based organization to a more
efficient government component,
capable of meeting 21st century
immigration demands. However, USCIS
transformation will not happen
overnight. Changes will be implemented
over the next five years, and stakeholder
input is at the forefront of this process.
Feedback from employees, intergovernmental partners, and the

A few commenters pointed to the fact
that applicants or petitioners must
provide biometric data more than once
if they file several applications or
petitions and their biometrics submitted
for previous requests has expired. Some
commenters considered the expiration
of fingerprint submissions to be
inefficient. Others suggested that it was
inefficient for USCIS to again request
biometrics when they apply for
sequential benefit applications.
Biometrics (which include
fingerprints and photographs) submitted
to USCIS are valid for 15 months. This
validity period, in most cases, provides
sufficient time for an immigration
benefit request to be processed. USCIS
utilizes the Biometrics Storage System
and the Benefits Biometric Storage
System to store biometric data and 10print fingerprints, respectively. These
systems allow USCIS to reuse and
resubmit biometrics as long as an
immigration benefit request has been
adjudicated within the 15 month
validity period. If there are processing
delays at USCIS, USCIS does not charge
the applicant the biometrics fee again if
the 15 month validity period expires.
When an applicant later reapplies to
renew a benefit or for another benefit,
the biometrics appointment is not
simply an opportunity to re-take the
biometrics again; it is an opportunity to
use biometrics to verify his or her
identity.
The biometrics fee covers costs
associated with the use of the collected
biometrics to pay the cost of FBI and
other background checks. Thus, an
applicant will pay the biometrics fee
whenever he or she files another
immigration benefit request that
requires the collection, updating, or use
of biometrics for background checks.
As USCIS transforms its systems to a
more fully electronic application
process, biometrics will be stored and
generally reused for the purpose of the
same and/or multiple benefit purposes.
Consequently, current operational
practices in this area for most benefit
types are based primarily on pretransformation business structures and
information systems. Future fee rules
will take into account the
transformation program, and therefore
no adjustments are made to this final
rule based on these comments.
Biometric fees will continue to balance
the initial capture, reuse, identity
verification, and anti-fraud functions
performed whenever an applicant or

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immigration community is critical to the
success of the transformation program.
The transformation solution will be
implemented in two phases that follow
the natural progression of the
immigration lifecycle, beginning with
nonimmigrant benefits. The first phase,
which is scheduled to deploy beginning
in the fourth quarter of FY 2011, will
shift USCIS from application-based
services to applicant- and petitionerbased electronic services for
nonimmigrant benefits. The second
phase, which is scheduled to deploy
from calendar years 2012 to 2014, will
apply the new capabilities progressively
to the remaining USCIS benefits in three
distinct releases, starting with
immigrant benefits, followed by
humanitarian benefits, and ending with
citizenship. As lines of business are
transformed, instead of using paper
forms and manually transmitting
information, applicants and petitioners
will primarily apply for benefits using
online accounts—similar to the way
most banks use electronic accounts
today. Data will be transmitted
electronically and USCIS employees
will view the data in a streamlined
automated environment. Cases will
automatically be assessed for risk and
assigned to appropriate adjudicators.
Office caseloads will be managed
according to volume, allowing
supervisors and managers the ability to
make informed decisions and balance
workloads across USCIS. Adjudicators
will have access to complete case
records in user-friendly, electronic
formats, allowing them to make timely,
accurate, ‘‘one-touch adjudication’’
decisions.
4. Increases Relative to Time
Some commenters suggested that
some fees were excessive for certain
benefit requests relative to the time it
takes to process the requests.
Commenters also recommended that
USCIS consider reducing fees for
variations of a form that may take less
time to process. For example, one
commenter suggested that it may take
less time to process an Immigrant
Petition for Alien Worker, Form I–140,
when it is accompanied by a labor
certification than at other times. DHS
agrees with the concerns of the
commenter in principle, but the current
modeling and data do not support the
detailed analysis that is necessary to
drive these distinctions into the activitybased costs. In the future, USCIS
intends to use its transformed systems
to perform a more in-depth analysis of
immigration benefit requests, eventually
examining the fee structure and
processing costs of each of the various

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benefit requests that are filed regardless
of the form used, such as the multiple
employee types petitioned for on Forms
I–140 and I–129, Petitions for Immigrant
and Nonimmigrant Workers. USCIS
does not possess the data gathering and
reporting capacity to support such
analysis and this type of fee system at
this time.
USCIS also understands the
commenters’ desire to have their
requests processed as quickly as
possible and that some USCISadministered benefits are subject to
more processing delays than others. In
general, delays do not factor into the
calculation of fees, except as they relate
to the complexity of the adjudication.
The primary basis of the USCIS fee
model is administrative complexity,
which is the amount of work necessary
to process a particular kind of
application or petition (identified as
‘‘Make Determination’’ activity in the
proposed rule). The calculation also
factors in other direct costs, such as the
cost of producing and delivering a
document when that is part of the
processing of a particular benefit. In
addition to these costs, the fee
calculation model factors in the full
costs of USCIS operations, including
services provided to other applicants
and petitioners at no charge, overhead
costs (e.g., office rent, equipment, and
supplies) associated with the
adjudication of the immigration benefit
request, and other processing costs.
These latter costs include responding to
inquiries from the public (‘‘Inform the
Public’’ activity); immigration benefit
request data capture and fee receipting
(‘‘Intake’’ activity); conducting
background checks (‘‘Conduct
Interagency Border Inspection System
Checks’’ activity); the acquisition and
creation of files (‘‘Review Records’’
activity); preventing and detecting fraud
(‘‘Fraud Prevention and Detection’’
activity); when applicable, producing
and distributing secure cards (‘‘Issue
Document’’ activity); and electronically
capturing biometrics (fingerprint and
photograph), background checks
performed by the FBI, or use of the
collected biometrics to verify the
identities of applicants (‘‘Capture
Biometrics’’ activity). Thus, no changes
are made in the final rule as a result of
these comments.
5. Fee Refunds
Some commenters were opposed to
the fee increase for the Notice of Appeal
or Motion, Form I–290B. Commenters
thought that the fee, though waivable,
could hinder individuals and prevent
them from receiving benefits they
deserve. They noted that the time

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involved in submitting a fee waiver
request jeopardized their chance of
meeting the 30-day filing deadline for
an appeal. Commenters also expressed
disappointment in the appeals process
in general, noting that it was
particularly burdensome for those who
are attempting to, as they perceive it,
rectify an error made by USCIS.
Commenters suggested that USCIS
develop a system to refund fees paid
because of USCIS error. Multiple
commenters cited being required to pay
for Form I–290B or the Application for
Action on an Approved Application or
Petition, Form I–824, due to USCIS
error.
USCIS has in the past agreed with the
findings of the USCIS Ombudsman, who
recommended developing more
consistent and clear procedures for
processing motions to reopen and
reconsider. See http://www.uscis.gov/
USCIS/Office%20of%20
Communications/Homepage/
Ombudsman%20Liaison%20Unit/
OLU%20Responses%20to%20
Formal%20Recommendations/rec42_
18aug09.pdf. USCIS is also developing
a fee refund process. The intent of that
process is to provide a simple,
expeditious system to point out clear
administrative errors made by USCIS
and to receive a rapid remedy from
USCIS mistakes. USCIS has undertaken
an internal review of the fee refund
process, its associated internal
procedural policy memo, and a new fee
refund form. The results of this review
are planned for inclusion in USCIS’ next
fee study.
Some commenters also mentioned the
perceived risk in filing Forms I–290B,
noting that they may not be routed
properly. In addition to the
aforementioned process changes, USCIS
now accepts Form I–290B at its lockbox
facilities for applicants and petitioners
filing an appeal or motion concerning a
decision made in a USCIS field office.
Filing at a lockbox facility provides
individuals with a receipt and facilitates
enhanced case tracking for USCIS
applicants and petitioners. Lockbox use
also ensures that the I–290B intake
process is timely. DHS believes this
centralized filing and handling will
alleviate the timing issues that the
commenters raised and that these
actions and changes are responsive to
the comments, though no changes to the
final rule were made as a result of them.
DHS is adding one additional change
to the fee for the Notice of Appeal or
Motion. Based on an analysis of the
public policy objectives and related
legislation, DHS is providing that there
is no fee for an Iraqi or Afghan national
who worked for or on behalf of the U.S.

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Government in Iraq or Afghanistan to
appeal a denial of a petition for a special
immigrant visa. The National Defense
Authorization Act of 2008 provided that
neither DOS nor DHS may collect any
fee in connection with an application
for, or issuance of, a special immigrant
visa for an Iraqi or Afghan national who
worked for or on behalf of the U.S.
Government in Iraq or Afghanistan.
Section 1244 of the National Defense
Authorization Act, 2008, Public Law
110–181, 122 Stat. 3, as amended by
Public Law 110–242, 122 Stat. 1567
(Jan. 28, 2008). DHS believes it is
keeping with the language of that statute
to also provide an appeal of such an
application for no charge. Thus, DHS
has changed the final rule to provide
that when such a petition is denied, the
petitioner may appeal by filing a Notice
of Appeal or Motion without fee.
6. Customer Service and the Office of
Public Engagement
Some commenters requested more
access to USCIS to encourage a
constructive and efficient dialogue
between the parties with the hopes of
significantly reducing overall processing
times, helping identify policy and
process defects, resolving questions, and
providing corrections and clarifications
on various immigration benefit requests.
Many commenters detailed customer
service issues, and incidences of poor
customer service, with various USCIS
offices. A number of commenters
believed that USCIS should not increase
fees until customer service improves.
USCIS is dedicated to ensuring that
stakeholders are fully informed of its
programs and processes, and can
provide input regarding USCIS
priorities, policies and programs, and
assessing organizational performance.
USCIS seeks to build new partnerships
and enhance existing relationships with
a broad range of stakeholders, including
community-based and faith-based
organizations, state and local
government representatives, advocacy
groups, and other stakeholders
interested in USCIS policies and
operations. Such partnerships enable
USCIS to maintain a transparent and
collaborative approach to policy making
and operations through information
sharing, stakeholder feedback, and
engagement opportunities. USCIS hosts
frequent engagements on a broad range
of issues, welcomes input on topics of
concern from the stakeholder
community, and seeks to provide
opportunities for stakeholders to submit
feedback to USCIS. The recently
established USCIS Office of Public
Engagement (OPE) facilitates and
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and directs USCIS-wide dialogue with
external stakeholders.
USCIS is currently implementing a
policy review to comprehensively
examine policy, guidance, and
procedures. Collectively, we believe that
these actions are responsive to these
comments. We have not revised this
final rule in response to the comments.
F. Premium Processing
Premium processing is a program by
which a petitioner for a nonimmigrant
worker may pay an extra amount to
ensure that the petition will be
processed in 15 days. The premium
processing fee was statutorily
authorized in 2000 for employmentbased applications and petitions and
was set at $1,000. See INA section
286(u), 8 U.S.C. 1356(u); 8 CFR 103.2(f);
new 8 CFR 103.7(b)(1)(i)(QQ), and (e).
Premium processing is currently
authorized for certain classifications
filing a Petition for a Nonimmigrant
Worker, Form I–129, or an Immigrant
Petition for Alien Worker, Form I–140.
See new 8 CFR 103.7(b)(1)(i)(RR), and
(e); USCIS Web site at www.uscis.gov.
For example, petitioners would pay the
$580 fee for a Form I–140 under this
rule, plus $1,225 for premium
processing.
Some commenters suggested that
premium processing be expanded to
other immigration benefit requests,
while other commenters argued against
an increase to the premium processing
fee. Some commenters stated that
premium processing is essentially
mandatory, rather than optional, to
ensure the timely and efficient
processing of their employment-based
petitions.
1. Expansion of Premium Processing
Service
The comments suggesting the
expansion of premium processing are
similar to other comments that believe
fee increases generally will result in
better service. USCIS understands the
desire of the commenters to be able to
obtain faster processing of all
immigration benefit requests. Such
comments indicate that at least some are
willing to pay substantially more if
USCIS can guarantee faster service.
USCIS has considered expanding
premium processing to other
immigration benefit requests beyond
those currently allowed in conjunction
with this fee rule. In future reviews,
USCIS will perform the necessary
analysis to identify candidates for faster
processing guarantees, while also
considering operational limitations that
may prohibit expansion of premium
processing into certain areas. USCIS

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will also need to determine the
appropriate amount to charge for each
benefit if permitted, and the logistical
requirements for implementing
expanded premium services. USCIS has
not, to date, analyzed the effect of
premium processing on specific
application and petition types, but plans
to consider doing so in the future.
Premium processing actually moves
applicants and petitioners to the head of
the line for adjudication and the
additional fee permits the devotion of
specific resources to resolving that
application or petition. No change is
made in this rule as a result of these
comments. Nevertheless, USCIS
believes that this issue does justify more
analysis for consideration in future fee
reviews.
2. Adjustment to Premium Processing
Fee
Some commenters disagreed with an
increase to the premium processing fee.
Many cited delays in the process that
required them to file a request for
premium processing to ensure receipt of
a visa in a reasonable amount of time.
Other commenters mentioned what they
perceived to be frivolous RFEs that
contribute to delays in processing these
visas. For many commenters, premium
processing increased the likelihood of
their success in managing the RFE
process and the visa process in general.
The commenters stated that an increase
to the premium processing fee, when
multiplied by the number of aliens for
whom they may petition, would be
particularly burdensome.
USCIS is striving to increase its
efficiency in all visa processing and, at
this time, O and P visa processing.
Efficiencies in these areas will alleviate
the need for premium processing
services and ensure that applicants and
petitioners can expect to procure these
visas in a timely manner. USCIS
recognizes the concerns of the
commenters and has made the 14-day
adjudication processing time a goal for
O and P visa petitions. USCIS is meeting
that goal at both Service Centers that
process these petitions.
In addition to improving processing
times, USCIS has also undertaken
several initiatives to improve the quality
of O and P visa adjudication. An RFE
project is being developed at the Service
Centers to revise current RFE standard
operating procedures to facilitate
consistent, relevant, concise and clear
RFE templates. The O and P visa
classifications are a part of the first
phase of this project. USCIS is also
reviewing the Adjudicator’s Field
Manual, existing policy guidance, and
training materials to identify focal

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points for additional guidance and
training for O and P visa processing.
Through these efforts, USCIS hopes to
reduce the number of premium
processing service requests related to
these visa categories.
The percent change in the Consumer
Price Index for All Urban Consumers
(CPI–U) was used to adjust the premium
processing fee. Between June 2001,
when Congress established the fee, and
June 2010, the CPI–U increased by
22.45%. When that percentage increase
is applied to the current premium
processing fee of $1,000, the adjusted
premium processing fee is $1,224
($1,225 when rounded to the nearest
$5). See INA section 286(u), 8 U.S.C.
1356(u). This amount is the same fee in
the proposed rule and represents the
final premium processing fee. Adjusting
this fee by the Consumer Price Index is
statutorily permissible and is a
reasonable method for accounting for
increases in costs for this service. Since
Congress enacted this original fee level
(almost ten years ago), labor and
resource costs have increased
significantly. The revenues that USCIS
derives from premium processing
exceed the marginal costs for providing
such services. Fees from this activity
contribute to significant system and
business process modernization which
will benefit all applicants and
petitioners. Therefore, DHS has
increased the fee in this rule as
proposed.
G. New Fees and Forms

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1. Immigrant Visa DHS Domestic
Processing Fee
Several commenters questioned the
appropriateness and the amount of work
required to justify the proposed
immigrant visa processing fee. Another
commenter suggested that fee waivers
should be available for immigrant visas,
an issue which is addressed elsewhere
in this preamble. One commenter
questioned how USCIS plans to
implement this new fee, including when
and where the fee would be payable,
such as when the immigrant visa
petition is filed with USCIS, with the
immigrant visa fee payable to DOS, at
the time of immigrant visa issuance, at
the port of entry (POE) prior to
admission, or by mail after admission is
completed. Due to staffing and logistical
issues and convenience for the
applicant, USCIS has requested that
DOS collect the fee on USCIS’s behalf.
Under the Economy Act, 31 U.S.C. 1535,
USCIS will reimburse DOS for the costs
DOS incurs in performing this service
on behalf of USCIS. Still another

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commenter asked how the new fee
impacts immigrant visa demand.
USCIS has not conducted an analysis
to determine the potential impact on
visa demand, but DHS has determined
that, irrespective of any potential effect,
USCIS should no longer shift its costs of
providing immigrant visas to those
paying fees for other immigration
benefits. Based on current projections,
USCIS expects this fee to generate $74.2
million during the next fiscal year, a
sum that otherwise would be charged as
overhead to all other fee-paying
applicants and petitioners.
While the new fee for processing an
immigrant visa admission packet is
mostly for an internal recordkeeping
function based on the transfer of
documents from one government entity
to another, the relatively limited nature
of this activity does not exempt it from
cost recovery through a unique fee.
Costs include the initial creation of the
alien’s ‘‘A-File’’ and production and
shipment of the permanent resident
card. These costs are currently borne by
USCIS, as the DHS agency
administratively responsible for the
assigned task, and charged to all fee
paying applicants and petitioners as an
overhead expense. Accordingly, DHS
has decided that these are costs that are
better charged directly and recovered
from immigrants as an appropriate
immigrant visa processing fee.
A commenter suggested that the
imposition of a fee for the processing of
the immigrant visa packet incorrectly
amounted to funds being paid to USCIS
for the consular officer’s visa approval
decision and/or the U.S. Customs and
Border Protection (CBP) officer’s lawful
permanent residence admission
decision to become effective. DHS
disagrees. The immigrant visa domestic
processing fee recovers the costs of
USCIS staff time to process, file, and
maintain the immigrant visa package
and the cost of producing the permanent
resident card. Although the labor or
effort may seem inconsequential, USCIS
processes approximately 36,000 of these
requests per month, totaling almost
430,000 visa applications, or
$70,950,000, annually. The volume of
this activity warrants a significant
amount of dedicated USCIS resources.
The costs for these resources are
currently charged to all fee payers. DHS
believes that this is an undue burden for
other fee-paying applicants and
petitioners and is, therefore, shifting the
cost of processing immigrant visas to the
immigrant visa recipients who are the
beneficiaries of this service. Some
commenters lauded the implementation
of the additional fees, recognizing that
these fees remove some of the cost

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burden from fee-paying applicants. This
new fee does not alter the costs of, or
reimburse for, any activity by CBP. No
changes to the final rule were made as
a result of these comments.
2. Civil Surgeon Designation Fee and
Form
Some commenters requested that
military civil surgeons be exempt from
the new Civil Surgeon Designation Fee.
DHS agrees. DHS is exempting
physicians serving in the military or
employed by the U.S. government from
the fee required of civil surgeons if
performing examinations for members
or veterans of the military, or their
dependents, who receive care at a U.S.
military, Department of Veterans
Affairs, or U.S. government facility in
the United States. See New 8 CFR
103.7(b)(1)(i)(SS).
Another commenter asked clarifying
questions concerning military civil
surgeons who must move due to
reassignment. Specifically, the
commenter was concerned that civil
surgeons who must move frequently due
to military orders would be subject to
the fee on multiple occasions. DHS
recognizes that any civil surgeon,
whether military or civilian, may move
to a different jurisdiction. Any civil
surgeon changing his or her address will
be required to update USCIS on the
change, and include evidence of
continued eligibility to serve as a civil
surgeon by submitting this information
to their local field office so the civil
surgeon roster can be updated
accordingly. At this time, USCIS does
not intend to charge a fee to update an
address if a civil surgeon has already
been designated appropriately.
An additional concern expressed
about the civil surgeon designation fee
was its impact on the availability of
civil surgeons throughout the United
States. In particular, a commenter
indicated that few civil surgeons are
available in certain parts of the country
and that the new fee will make it more
difficult for individuals to receive the
designation. The commenter also
indicated that this result will, in turn,
ultimately prohibit eligible applicants
for immigration benefits from receiving
the necessary medical clearance and
applying for their benefits.
While DHS is aware of the fact that
the availability of civil surgeons in some
areas of the country is greater than in
others, it does not believe that this
discrepancy and the imposition of the
new fee denies applicants the
opportunity to apply for immigration
benefits. Based on the existing roster of
civil surgeons, the number of civil
surgeons in any given area appears to

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correlate favorably with the projected
number of potential immigrants needing
medical examinations. USCIS is always
interested in increasing the number of
civil surgeons in areas of low
availability in an effort to reduce the
potential cost impact of this statutorilyrequired exam. While access to civil
surgeons in rural areas may be limited,
the commenter has only speculated that
a new fee would preclude reasonable
access to civil surgeons. DHS is not
aware of evidence that supports the
commenter’s speculation and the
commenter did not provide any
additional data to support these claims.
DHS has a responsibility to ensure the
integrity of the civil surgeon program
and has set a fee that recovers the
operational costs for this program, the
appropriate overhead and the
appropriate spread of policy decision
costs. Without this fee, work performed
to designate and maintain the civil
surgeon roster would continue to be
borne by all fee-paying applicants and
petitioners. Requiring physicians to pay
for this designation shifts the costs from
the general applicant population to the
physicians who perform the
examinations and who may derive
financial benefit (such as a fee) from
such examinations. No changes to the
final rule were made as a result of these
comments.
3. EB–5 Regional Center Designation Fee
and Form
Most EB–5 related comments
acknowledged the need for a regional
center designation fee. The commenters
expressed support for the fee, while also
noting the need for improvements in
processing times, collaborative efforts,
and regulatory development. USCIS
continues to strive for improved
processing times, has committed to
improved stakeholder communications
with quarterly stakeholder meetings,
and will pursue regulatory development
when practical.
Several commenters, referencing the
supporting documentation, suggested
that DHS calculated the Regional Center
Amendment fee in violation of OMB
Circular A–25. These comments
suggested that the DHS Supporting
Statement: Application for Regional
Center under the Immigrant Investor
Pilot Program, Form I–924, and Form I–
924A (OMB No. 1615–NEW), Docket
No. USCIS–2009–0033–0003–0006,
show 40 hours to adjudicate an initial
designation and only 10 hours to
adjudicate an amendment. DHS
disagrees with the commenters. The
time burden outlined in the supporting
statement is an estimate of the amount
of time it takes for filers to complete the

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form, not the time it takes to adjudicate
the form. This review, and
documentation required by the
Paperwork Reduction Act, are discussed
elsewhere in this preamble. A review of
a substantial number of recently filed
amendment requests by previously
designated regional centers reveals that
most amendments involve a diverse
variety of adjudicative issues, such as
changes in geographic scope,
organizational structure, capital
investment projects, and exemplar
Forms I–526, Immigrant Petition by
Alien Entrepreneur. No changes were
made to the final rule as a result of these
comments.
Another commenter mentioned the
proposed amendment to 8 CFR
204.6(m)(6), which would provide for
an annual reporting requirement for
Regional Centers in connection with the
USCIS authority to terminate a regional
center’s designation. The commenter
suggested that the language ‘‘no longer
serves the purpose of promoting
economic growth,’’ was vague, and in
need of more specifics regarding
practices that are either prohibited or
required in order for the regional center
to continue to ‘‘serve the purpose of
promoting economic growth.’’ The
commenter recommended that USCIS
adopt a rule to ensure ongoing regional
center compliance, such as termination
proceedings if a regional center does not
file a single Immigrant Petition by Alien
Entrepreneur within a fiscal year.
DHS notes that the regulation at 8
CFR 204.6(m)(6) already provides a
means to terminate a regional center if
the regional center ‘‘no longer serves the
purpose’’ of the program. DHS believes
that the potential reasons for the
termination of a regional center extend
beyond inactivity on the part of a
regional center. This regulation
currently provides for a process of
notice and rebuttal. The amended
regulatory language leaves this process
intact. Regional centers have been and
will be provided with ample
opportunity to overcome the reasons for
termination of the regional center under
this process. DHS is exploring means by
which information regarding
termination proceedings may be shared,
and will consider making this
information available in the annual
disclosure report. DHS is making no
changes in the final rule as a result of
this comment.
A number of comments mentioned
statutory, regulatory, and policyoriented issues that were outside the
scope of the proposed rule, like job
creation requirements for the Immigrant
Investor Pilot Program. The final rule
does not address comments seeking

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changes in United States statutes,
changes in regulations or immigration
benefits unrelated to, not reasonably
related to the fee structure or impacting
the fee structure, and not addressed by
the proposed rule, changes in
procedures of other components within
DHS or other agencies, or the resolution
of any other issues not within the scope
of the rulemaking or the authority of
DHS.
H. Methods Used To Determine Fee
Amounts
A number of comments questioned or
requested additional information on the
methodology used to determine USCIS
costs. Others questioned the costs and
calculations provided in the proposed
rule, while some requested an invoice
that details the costs of services. USCIS
has made no changes to the final rule as
a result of these comments.
Detailed information on the fee
review methodology and the cost
components and calculations was
provided in the proposed rule and
remains posted in the docket of this rule
at www.regulations.gov. This
information will also be provided
directly by USCIS upon request. The
underlying supporting elements, such as
independent legal requirements, the
General Schedule pay scales, or travel
reimbursement rates, are all publicly
available. In the proposed rule, USCIS
offered an opportunity to review the
functioning of the computerized cost
model used by USCIS through onsite
viewing on its computer system. While
USCIS cannot provide complete access
to the computer software purchased
under license, the USCIS fee
determination is, within reason, an open
process. A summary of how calculations
were made and results achieved was
available for review upon request.
USCIS did not receive any requests to
access the modeling program. We have
made no changes to the final rule as a
result of these comments.
1. Reductions to USCIS Costs
A number of commenters suggested
that USCIS reduce its costs before
implementing a fee increase. USCIS
agrees that cost savings are an important
part of its fee evaluation. The FY 2010
enacted appropriation and the FY 2011
President’s budget request provided
significant appropriations ($55 million
in FY 2010 and $238 million in FY
2011) to reduce surcharges placed on
fee-paying applicants and petitioners for
programs related to refugee and asylum
benefits. The FY 2011 appropriations
request also includes the cost of the
Office of Citizenship and the SAVE
programs—two programs previously

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funded by immigration benefit fees. The
President’s total appropriation request
for USCIS was more than $385 million.
In addition to removing almost 10%
of costs from the fee structure, at the
beginning of FY 2010, USCIS
implemented approximately $160
million in operational budget cuts.
USCIS has reduced about 170 federal
positions, executed a number of hiring
freezes, and significantly reduced
overtime spending. All USCIS offices
faced an across-the-board reduction to
general expenses and certain contracts
were reduced due to lower workloads.
DHS believes that these actions to
reduce costs and fee burdens on feefunded programs have been significant,
and fully expects USCIS to continue to
focus on cost reduction and efficiency
in future fee reviews. No changes have
been made to the final rule as a result
of these comments.
2. Appropriations
Many commenters commended the
Administration’s request for
appropriated funding to eliminate
surcharges. Some commenters stated
that USCIS should request even more
appropriated funding to cover its costs.
Commenters suggested expanding the
use of appropriated funds to fraudrelated activities, asylum and refugee
services, infrastructure improvements,
overhead, and long-term investments.
Other commenters opined that
taxpayers should not bear the burden of
funding immigration-related activities
and strongly opposed the use of
appropriated funding for USCIS
operational purposes. DHS is committed
to reducing surcharges through the use
of appropriations and will continue to
consider such options that have the
potential of providing additional cost
relief without undue burden on
taxpayers.
Some commenters questioned the
reliance by USCIS on appropriations in
cost estimates determined prior to the
approval of those appropriations. USCIS
recognizes a certain level of uncertainty
that is created by the timing of the
federal budget process and this fee rule
(if the congressional budget process for
the fee rule’s biennial period was
completed before the fee rule was
finalized). Nonetheless, USCIS must
review its fees biennially and cannot
delay necessary rulemaking for the
benefit of the appropriations process.
DHS is well aware of the impact of
including appropriated funding in
USCIS cost estimates and USCIS has
analyzed (included in the proposed
rule) fee schedules under a number of
different appropriation scenarios to
satisfy the requirements of the

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Administrative Procedure Act. The
various fee schedules provided the
public with the highest and lowest
possible fees based on the highest and
lowest cost base.
Further, DHS statutory and regulatory
reviews considered the uncertainty of
appropriations funding. DHS shares the
commenters’ concerns and took steps to
insulate the regulatory flexibility
analysis from understating impacts to
small entities. To this end, as stated in
the proposed rule, DHS utilized fees
calculated without appropriations in the
analysis, which illustrated the largest
potential impact of the fee increase on
small entities. DHS has determined that
the fee schedule should continue to be
based on the President’s requested
appropriation. USCIS will make
necessary operational changes to
accommodate an appropriation that
does not fulfill the President’s request.
Accordingly, DHS makes no changes to
the final rule as a result of these
comments.
I. Other Comments
A number of comments were not
linked to the substance of the proposed
rule and criticized the rule for not
addressing other immigration law
issues. Some commenters addressed
issues related to comprehensive
legislative immigration reform. Others
suggested changes to the substantive
regulations implementing the
immigration laws by USCIS, CBP, U.S.
Immigration and Customs Enforcement,
and other agencies that do not have an
impact on the fee structure or amounts.
Some commenters expressed
dissatisfaction with the visa allocation
process, which is established by the
Congress, and outside of the scope of
DHS operations.
DHS cannot address comments
seeking changes in United States
statutes, changes in regulations or
immigration benefits unrelated to the
proposed rule, changes in procedures of
other components within the
Department of Homeland Security that
are not linked to the fee schedule or
processes, or regulations of other
agencies, or the resolution of any other
issues not within the authority of DHS.
Although beyond this scope, three
comments are discussed below in order
to clarify certain issues.
1. Visa Allocation and Unused Visa
Numbers
Several commenters expressed
concern that USCIS would raise fees
during a time when many employmentbased adjustment of status filers are
experiencing long waits for their visas.
Although these long waits are due to

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visa retrogression in oversubscribed
categories, some attributed it to USCIS
processing inefficiencies and questioned
a fee hike in the face of such delays.
Others attributed the long waits to the
mismanagement of the visa allocation
and coordination process between
USCIS and DOS and noted that many
numerically-limited visas have gone
unused.
The notion that USCIS processing
inefficiencies contribute to the long wait
for visas appears unfounded, as there is
currently an average processing time of
four months for an Application to
Register Permanent Residence or Adjust
Status, Form I–485, for which visas
remain available. This timeframe meets
the processing goal set forth in the 2008/
2009 fee rule. See 72 FR 4888, 4893.
Significant improvements have also
been made in the visa coordination
process between DOS and USCIS.
USCIS and DOS confer monthly on
pending visa demand, workload
capabilities, and forecasting of
immigration trends. For example, if
USCIS analysis finds a period of low
demand in a particular visa preference
category, DOS is able to respond by
advancing the priority dates rapidly to
ensure that all allotted visas will be
used in a particular fiscal year. USCIS
and DOS continue to consider ideas and
options to further improve the visa
coordination process between the two
and reduce the occurrence of visa
retrogression or future unused numbers.
Some commenters suggested that
USCIS recapture unused visa numbers
from recent years as a way to reduce the
backlog of pending adjustment of status
cases. By recapturing these numbers, it
was suggested that visa priority cut-off
dates would advance, allowing for many
new filings and thereby increasing
USCIS revenue without a need to raise
fees. However, the authority to
recapture any unused visa numbers
from previous years resides with
Congress and is not available to USCIS
as an administrative remedy. See INA
section 201, 8 U.S.C. 1151. Moreover,
increasing the number of filings
concurrently increases the amount of
work to be performed, thus consuming
the fees generated. Even if legally
possible, this solution would not be
practical.
Due to the long wait for visa numbers
in particular categories, several
commenters disagreed with a fee hike as
they noted costs would rise for
intending immigrants either seeking to
maintain their status in the United
States or receiving ongoing interim
benefits while awaiting visa numbers. It
is noted, however, that U.S. employers
may not recoup the costs required to file

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2. Increased Periods of Validity for
Travel and Employment Documents

USCIS has no interest in artificially
limiting the validity periods of these
documents. In many instances, these
validity periods are directly related to
the length of the underlying status
which created eligibility for these
associated benefits. For example, a
permanent resident who remains
outside the United States for more than
one year may be questioned on his or
her return based on the validity of his
or her Permanent Resident Card, Form
I–551. 8 CFR 211.3. If that individual
applied for a reentry permit before
departure from the foreign country, and
the application is granted, then the one
year validity of the Form I–551 is
extended to two years. 8 CFR 223.3(a),
(d). The current two-year validity of the
reentry permit matches this period.
Issuing it for a longer validity period
could create confusion and result in
some permanent residents remaining
abroad for too long and potentially
jeopardizing their status. The validity
period of a travel document or EAD is
generally linked to the validity period of
the relating immigration status.
The issuance of interim benefits based
on an application for an adjustment of
status was in some respects an
exception to this rule. However, in the
2008/2009 final fee rule, USCIS
eliminated extension application fees
for both advance paroles and EADs—
issuing them without charge since they
were paid as part of the Form I–485 fee.
See 72 FR 29851, 29873. Subsequently,
USCIS extended the validity period to
two years for new EADs issued to
applicants for adjustment of status for
whom a visa number was not available.
See 8 CFR 274a.12(a) (authorizing
USCIS to determine the validity period
for EADs). This change was done in part
to eliminate any perception that
different renewal cycles were simply a
means of generating revenue from
applicants and petitioners who had
applied under the prior fee structure.
The two-year renewal is based on the
need to periodically evaluate continuing
eligibility for these associated benefits,
whether provided without additional
charge or through a fee.

A number of commenters requested
that USCIS offer multi-year employment
authorization documents (Form I–765)
and travel documents (Form I–131).
Commenters cited the financial burden
of submitting multiple applications for
both services while their adjustment of
status cases are pending. Some
commenters also mentioned the
administrative burden created when
trying to time the filing of the
documents so as not to produce
instances of overlapping validity.

3. Suggested I–94 Fee
One commenter suggested that USCIS
charge a fee for the cost of
recordkeeping and filing of an ArrivalDeparture Record, Form I–94, issued at
the POE for non-immigrant visa and visa
waiver admissions. The commenter
believed that this is a much larger
population and a more tedious task than
collection of the new immigrant visa
domestic processing fee. DHS has not
adopted the commenter’s suggestion.
Form I–94 and any fees associated with

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for a nonimmigrant employee or his/her
extension or change of status; thus, the
costs are borne by the employer and not
the intending immigrant seeking to
maintain his/her status. Furthermore, as
of the fee structure instituted in 2007,
applicants for adjustment of status who
request advance parole and employment
authorization are exempt from payment
of additional fees while their Forms I–
485 are pending. Thus, this is not a
valid concern for these individuals.
USCIS acknowledges that
employment-based Form I–485 filers
who filed under the old fee structure,
prior to August 18, 2007, must continue
to pay fees associated with interim
benefits. While USCIS has no control
over the Department of State’s allocation
of visa numbers, nor over the yearly visa
numerical limits as established by
Congress, it has nonetheless been
sympathetic to those who have pending
adjustment of status applications in
categories experiencing extreme visa
retrogression. To alleviate the filing
burden on these individuals and
associated costs, USCIS initiated a
policy in June 2008 whereby an EAD
would have a two-year validity period
for these affected individuals,
effectively reducing ongoing costs for
the benefit by an estimated 50 percent.
USCIS is further adopting a policy
whereby those same affected
individuals may receive an advance
parole document with a two-year
validity period to further alleviate their
filing burdens. The number of filers
affected by FY 2007 visa retrogression
continues to decline as visa numbers are
allocated.
One commenter suggested the
creation of a variable fee structure
depending on the wait for a visa
number. As wait times fluctuate due to
a myriad of factors, including visa
number restrictions, per-country limits,
and changes in demand, it would be
impractical to adopt this suggestion as
there would be no way to project what
the future delays and fees would be.

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the form are handled by CBP, another
DHS component, and are beyond the
scope of this rulemaking.
J. Discussion of Comments Received in
Response to the June 1, 2001, Interim
Rule
On June 1, 2001, the Immigration and
Naturalization Service, as predecessor to
USCIS, published an interim rule with
request for comments in the Federal
Register which:
• Added a new paragraph to 8 CFR
103.2(f) to set the procedural
requirements to request premium
processing, designate applications and
petitions as eligible, clarify the fees, and
provide for the announcement of the
temporary termination of the service;
• Amended 103.7(b) and (c) to
establish a premium processing fee;
• Amended 103.7(c) to provide that
the premium processing fee cannot be
waived; and
• Amended 299.1 to provide that
Form I–907 should be used to request
premium processing service.
Establishing Premium Processing for
Employment-Based Petitions and
Applications, 66 FR 29682 (June 1,
2001). The interim rule implemented
the District of Columbia Appropriations
Act, 2001, Public Law 106–553, 114
Stat. 2762 (2000). The legislation added
a new INA section 286(u) that
authorized the collection of a $1,000
‘‘premium processing’’ fee in addition to
the regular filing fee for certain petitions
and applications. The legislation limited
the authority to collect the premium
processing fee to employment-based
petitions and applications. INA section
286(u), 8 U.S.C. 1356(u).
INS provided a 60 day comment
period and received 78 public
comments relating to the interim rule
from performing arts organizations;
attorneys, management companies, and
representatives of performing arts
organizations; and associations of
attorney and business personnel. Many
of the issues raised were addressed
above in response to comments received
on the proposed fee rule and that
discussion will not be repeated.
Virtually all commenters repeated the
following points:
• Although INS allows non-profit
organizations to request expedited
processing without charge, some do not
qualify and the process is unreliable;
• Expedited processing should be
completed in less than 15 days;
• INS did not provide enough
advance notice of this immediately
effective change or how it would affect
cases already filed; and
• O–2 and P visa support petitions
and petition amendments should be

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations
included within the premium
processing fee for the principal.
Each of these comments will be
discussed below.
The commenters suggested that
USCIS complete its processing in a
shorter timeframe than 15 days.
Although we understand this request,
DHS has determined that 15 days is
reasonable and it is unable to guarantee
processing in any time shorter than the
15 day period provided in the rule.
The commenters complained that the
interim rule was immediately effective
on publication and did not address its
applicability to cases already filed. As
explained in the interim rule, INS
determined that it found good cause to
adopt the rule without prior notice and
comment and that any delayed
implementation would be contrary to
the public interest. 66 FR 29682, 29684.
Since the interim rule has now been in
effect for over nine years and any thenpending cases have been decided, DHS
will not make any changes to the rule
in response to these comments.
The commenters also suggested that
there be no additional charge for
petitions filed on behalf of O–2 nonimmigrant visa dependents, P visa
essential support personnel, and
petition amendments. As discussed
above, USCIS fee methodology is
premised on the relative cost to
adjudicate each petition and therefore, it
must charge a fee for each petition and
each request for premium processing.
As such, DHS cannot adopt the
commenters’ suggestion that one
premium processing fee cover several
petitions or petition amendments.
In addition, two commenters
mentioned the impact of the rule on
Canadian performers who depend on
income received from short notice, short
term engagements in the United States.
USCIS has decreased its processing
times for O and P petitions; therefore,
no special accommodation is needed for
Canadian performers. USCIS has made
no change to the interim rule as a result
of them.
One commenter praised the premium
processing service but complained that
it would exacerbate H–1B processing for
teachers and school administrators. The
commenter also noted the adverse
impact of the timing of H–1B filing
season on educational institutions.
USCIS has decreased its processing
times for H–1B petitions and seeks to
further improve that process. However,
the number of H–1B visas available each
year is fixed by statute and beyond the
control of USCIS. INA section 214(g), 8
U.S.C. 1184(g).
Two commenters sought assurances
that USCIS would promptly respond to

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submissions made in response to
Requests for Evidence and Notices of
Intent to Deny to avoid further
processing delays and suggested
amending the regulation to require it. As
mentioned, USCIS has decreased its
processing times for O and P petitions
and has improved its processing and
efficiency overall and strives to decide
all cases promptly. USCIS has made no
change to the interim rule as a result of
these comments.
Another commenter reminded that
the use of premium processing fees is
limited by statute and suggested that a
fee waiver be permitted. INA section
286(u), 8 U.S.C. 1356(u). USCIS is
certainly aware of the statutory
limitation of such fees to ‘‘premiumprocessing services to business
customers, and to make infrastructure
improvements in the adjudications and
customer-service processes’’ and limits
its use of such fees to the authorized
purposes. Id. Given the significant
improvement in processing times, DHS
has decided not to permit a fee waiver
of the premium processing fee. DHS has
made no change to the interim rule as
a result of the comment.
One commenter requested that the
Application to Register Permanent
Residence or Adjust Status, Form I–485,
be added to the list of forms eligible for
premium processing service. Given the
complexity and significance of the
adjudication of an application for lawful
permanent residence, USCIS is unable
to commit to such a timeframe.
Although USCIS has decreased its
processing time for Forms I–485, at this
time it is unable to extend premium
processing service to employment-based
Forms I–485.
For these reasons, no changes are
made to the interim rule as a result of
the comments received and the interim
rule is adopted as final and changed as
described in this rule.
IV. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act—Final
Regulatory Flexibility Analysis
In accordance with the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601(6),
USCIS examined the impact of this rule
on small entities. A small entity may be
a small business (defined as any
independently owned and operated
business not dominant in its field that
qualifies as a small business per the
Small Business Act, 15 U.S.C. 632), a
small not-for-profit organization, or a
small governmental jurisdiction
(locality with fewer than fifty thousand
people). Below is a summary of the
small entity analysis. A more detailed
analysis titled ‘‘Small Entity Analysis for

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Adjustment of the U.S. Citizenship and
Immigration Services Fee Schedule’’ is
available in the rulemaking docket at
http://www.regulations.gov.
Individuals rather than small entities
submit the majority of immigration and
naturalization benefit applications and
petitions. Entities that would be affected
by this rule are those that file and pay
the alien’s fees for certain immigration
benefit applications. Consequently,
there are four categories of USCIS
benefits that are subject to a RFA
analysis for this rule: Petition for a
Nonimmigrant Worker (Form I–129);
Immigrant Petition for an Alien Worker
(Form I–140); Civil Surgeon
Designation; and the new Application
for Regional Center under the Immigrant
Investor Pilot Program (Form I–924).
DHS does not believe that the increase
in fees proposed in this rule will have
a significant economic impact on a
substantial number of small entities;
nevertheless, DHS is publishing a final
regulatory flexibility analysis.
1. Objectives of, and Legal Basis for, the
Final Rule
DHS’s objectives and legal authority
for this final rule are discussed in
section III.A of this preamble.
2. Significant Issues Raised by Public
Comments in Response to the Initial
Regulatory Flexibility Analysis
Only one commenter specifically
mentioned the IRFA. The commenter
was concerned that uncertainty of
appropriations funding from Congress
would impact the results of the IRFA.
DHS shared this concern and took steps
to insulate the analysis from
understating impacts to small entities.
As stated in the proposed rule, DHS
utilized fees calculated without
appropriations when preparing the
IRFA, which illustrated the largest
impact of this fee increase on small
entities.
A number of general comments on the
rule raised concerns about the increase
in Form I–129 fees, particularly with
respect to non-profit agencies
sponsoring musicians to perform in the
U.S. These comments were directed at
operational and efficiency issues rather
than the initial regulatory flexibility
analysis. The operational and efficiency
comments have been addressed above in
section III(B)(2)(d) of this final rule. One
of those commenters suggested a
separate fee structure for non-profit
organizations, but did not provide any
further information. As described in the
IRFA, this type of fee structure would
ultimately lead to increased costs for
non-profit organizations in the form of

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longer wait times and reduced customer
service.
Most comments concerning EB–5
Regional Center Designation centered on
operational and form-related issues,
which are discussed in section III(E)(3)
of this final rule. Some commenters
recommended a fee-exemption for nonprofit Regional Centers. The comments
did not provide any analysis to support
the need for a fee-exemption for nonprofit Regional Centers, such as data
indicating that the DHS analysis was
lacking and have not been adopted.
Many commenters asserted that fees
were too high. These comments are
addressed in the response to public
comments in section III(B)(2) of this
final rule.

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3. Description and Estimate of the
Number of Small Entities to Which the
Rule Will Apply
Entities affected by this final rule are
those that file and pay fees for certain
immigration benefit applications on
behalf of an alien. These petitions and
applications include Form I–129,
Petition for Nonimmigrant Worker;
Form I–140, Immigrant Petition for
Alien Worker; Request for Civil Surgeon
Designation; and Form I–924,
Application for Regional Center. Annual
numeric estimates of the small entities
impacted by this fee increase total: Form
I–129 (87,220 entities), Form I–140
(44,500 entities), Civil Surgeon
Designation (1,200 entities), and Form
I–924 (132 entities).
This rule applies to small entities,
including businesses, non–profit
organizations, and governmental
jurisdictions filing for the above
benefits. Forms I–129 and I–140 will see
a number of industry clusters impacted
by this rule (see Appendix A of the
Small Entity Analysis for a list of the
impacted industry codes). The fee for
Civil Surgeon designation will impact
physicians seeking to be designated as
Civil Surgeons. Finally, Form I–924 will
impact any entity requesting approval
and designation to be a Regional Center
under the Immigrant Investor Pilot
Program.
4. Reporting, Recordkeeping and Other
Compliance Requirements
This final rule imposes higher fees for
filers of Forms I–129 and I–140, and
new fees for filers of Civil Surgeon
Designation requests and Form I–924,
EB–5 Regional Center applications. The
new fee structure, as it applies to the
small entities outlined above, results in
the following fees: Form I–129 ($355),
Form I–140 ($630), Civil Surgeon
Designation ($615), and Form I–924
($6,820). As discussed in the IRFA, in

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order not to underestimate the impact of
this rule, DHS analyzed fees based on
non-appropriated funding. DHS has
applied these same assumptions to the
FRFA. The final rule does not require
any new professional skills for
reporting.
5. Steps Taken To Minimize Significant
Adverse Economic Impacts on Small
Entities
Section 286(m) of the INA provides
for the collection of fees at a level that
will ensure recovery of the full costs of
providing adjudication and
naturalization services, including
services provided without charge to
asylum applicants and certain other
immigrant applicants. In addition, DHS
must fund the costs of providing
services without charge by using a
portion of the filing fees collected for
other immigration benefits. Without an
increase in fees, USCIS will not be able
to provide applicants and petitioners
with the same levels of service for
immigration and naturalization benefits.
DHS has considered and rejected the
alternative of maintaining fees at the
current level with reduced services and
increased wait times.
While most immigration benefit fees
apply to individuals, as described
above, some also apply to small entities.
USCIS seeks to minimize the impact on
all parties, but in particular on small
entities. An alternative to the increased
economic burden of the fee adjustment
is to maintain fees at their current level
for small entities. The strength of this
alternative is that it assures that no
additional fee-burden is placed on small
entities; however, this alternative also
would cause negative impacts to small
entities.
Without the fee adjustments provided
in this final rule, significant operational
changes to USCIS would be necessary.
Given current filing volume and other
economic considerations, additional
revenue is necessary to prevent
immediate and significant cuts in
planned spending. These spending cuts
would include reductions in areas such
as federal and contract staff,
infrastructure spending on information
technology and facilities, travel, and
training. Depending on the actual level
of workload received, these operational
changes would result in longer
application processing times, a
degradation in customer service, and
reduced efficiency over time. These cuts
would ultimately represent an increased
cost to small entities by causing delays
in benefit processing and less customer
service.

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B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) requires certain actions
to be taken before an agency
promulgates any notice of rulemaking
‘‘that is likely to result in promulgation
of any rule that includes any Federal
mandate that may result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year.’’ 2 U.S.C. 1532(a). While this
rule may result in the expenditure of
more than $100 million by the private
sector annually, the rulemaking is not a
‘‘Federal mandate’’ as defined for UMRA
purposes, 2 U.S.C. 658(6), as the
payment of immigration benefit fees by
individuals or other private sector
entities is, to the extent it could be
termed an enforceable duty, one that
arises from participation in a voluntary
Federal program, applying for
immigration status in the United States.
2 U.S.C. 658(7)(A)(ii). Therefore, no
actions were deemed necessary under
the provisions of the UMRA.
C. Small Business Regulatory
Enforcement Fairness Act
This rulemaking is a major rule as
defined by section 804 of the Small
Business Regulatory Enforcement Act of
1996. This rulemaking will result in an
annual effect on the economy of more
than $100 million, in order to generate
the revenue necessary to fully fund the
increased cost associated with the
processing of immigration benefit
requests 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 proposed regulation,
at no charge. The increased costs will be
recovered through the fees charged for
various immigration benefit
applications.
D. Executive Order 12866
This rule is considered by the
Department of Homeland Security to be
an economically significant regulatory
action under Executive Order 12866,
section 3(f)(1), Regulatory Planning and
Review. Accordingly, this rule has been
reviewed by the Office of Management
and Budget.
The implementation of this rule
would provide USCIS with an average
of $209 million in FY 2010 and FY 2011
annual fee revenue, based on a projected
annual fee-paying volume of 4.4 million
immigration benefit requests and 1.9
million requests for biometric services,
over the fee revenue that would be

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collected under the current fee
structure. This increase in revenue will
be used pursuant to sections 286(m) and
(n) of the INA, 8 U.S.C. 1356(m) and (n),
to fund the full costs of processing
immigration benefit applications 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 others at
no charge.

If USCIS does not adjust current fees
to recover the full costs of processing
immigration benefit requests, USCIS
would be forced to implement
additional significant spending
reductions resulting in a reversal of the
considerable progress it has made over
the last several years to reduce the
backlogs of immigration benefit filings,
to increase the integrity of the
immigration benefit system, and to

58985

protect national security and public
safety. The revenue increase is based on
USCIS costs and projected volumes that
were available at the time the final rule
was drafted. USCIS has placed a
detailed analysis in the rulemaking
docket that explains the basis for the
annual fee increase and has included
the required OMB Circular A–4
detailing the annualized impacts of the
rule in table 2.

TABLE 2—OMB CIRCULAR A–4 ACCOUNTING STATEMENT
[FY 2010 through FY 2011 (2009 Dollars)]
Category

Primary estimate

Transfers
Annualized Monetized Transfers at 3% ...............................................................................................................................
Annualized Monetized Transfers at 7% ...............................................................................................................................

E. Executive Order 13132
This rulemaking 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, the Department of
Homeland Security has determined that
this rulemaking does not have sufficient
Federalism implications to warrant the
preparation of a federalism summary
impact statement.

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F. Executive Order 12988
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act
(PRA) of 1995, Public Law 104–13, 109
Stat. 163 (1995) (PRA), all Departments
are required to submit to OMB, for
review and approval, any reporting or
recordkeeping requirements inherent in
a rule. This rule creates two new
information collections.
• Application for Civil Surgeon
Designation, and
• Form I–924 and Form I–924A,
Application for Regional Center under
the Immigrant Investor Pilot Program.
In accordance with the PRA, DHS
published a 60-day notice in the Federal
Register on June 11, 2010, at 75 FR
33446, requesting comments on the two
new information collections. The
comments on the Application for Civil
Surgeon Designation and DHS’s
response can be found in section
IV(G)(2) of this final rule. The comments
on the Forms I–924 and I–924A,
Application for Regional Center under
the Immigrant Investor Pilot Program,

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and DHS’s response can be found in
section IV(G)(3) of this final rule, and in
an attachment to the supporting
statement that will be posted to
www.regulations.gov.
As required by the PRA, the two new
information collections were submitted
to the Office of Management and Budget
(OMB) for review and approval. OMB
has approved the Application for Civil
Surgeon Designation. The approved
OMB Control No. is 1615–0114.
DHS made some edits to the Forms I–
924, and I–924A, based on the public
comments and resubmitted these
amended forms to OMB for review and
approval.
DHS is requesting comments on the
Forms I–924 and I–924A for 30 days
until October 25, 2010. Comments on
this information collection should
address one or more of the following
four points:
(1) Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.

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$209,264,850
$209,264,850

Overview of Information Collection:
Immigration Investor Pilot Program.
a. Type of information collection:
Revised information collection.
b. Abstract: This collection will be
used by individuals and businesses to
file a request for USCIS approval and
designation as a Regional Center on
behalf of an entity under the Immigrant
Investor Pilot Program.
c. Title of Form/Collection:
Application for Regional Center under
the Immigrant Investor Pilot Program.
d. Agency form number, if any, and
the applicable component of the
Department of Homeland Security
sponsoring the collection: Form I–924
and Form I–924A; U.S. Citizenship and
Immigration Services.
e. Affected public who will be asked
or required to respond: Individuals and
businesses.
f. An estimate of the total number of
respondents: 132 respondents filing
Form I–924, and 116 respondents filing
Form I–924A.
g. Hours per response: Form I–924 at
40 hours per response, and Form I–
924A at 3 hours per response.
h. Total Annual Reporting Burden:
4,428 hours.
Comments concerning Form I–924
and I–924A can be submitted to the
Department of Homeland Security,
USCIS, Chief, Regulatory Products
Division, Clearance Office, 111
Massachusetts Avenue, Suite 3008,
NW., Washington, DC 20529–2210.
The changes to the fees will require
minor amendments to immigration
benefit and petition forms to reflect the
new fees. The necessary changes to the
annual cost burden and to the forms
have been submitted to OMB using
OMB Form 83–C, Correction Worksheet,
and OMB has approved these changes.

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List of Subjects
8 CFR Part 103
Administrative practice and
procedures, Authority delegations
(government agencies), Freedom of
Information; Privacy, Reporting and
recordkeeping requirements, Surety
bonds.
8 CFR Part 204
Administrative practice and
procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 244
Aliens, Reporting and recordkeeping
requirements.
8 CFR Part 274A
Administrative practice and
procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping
requirements.
■ Accordingly, the interim rule
‘‘Establishing Premium Processing for
Employment-Based Petitions and
Applications,’’ published at 66 FR 29682
on June 1, 2001, is adopted as a final
rule with the following changes:
PART 103—POWERS AND DUTIES;
AVAILABILITY OF RECORDS
1. The authority citation for part 103
continues to read as follows:

■

Authority: 5 U.S.C. 301, 552, 552a; 8
U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C.
9701; Public Law 107–296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874,
15557; 3 CFR, 1982 Comp., p.166; 8 CFR part
2.
§ 103.2

[Amended]

2. Section 103.2 is amended by:
a. Removing paragraph (e)(4)(ii);
b. Redesignating paragraphs (e)(4)(iii),
and (e)(4)(iv), as paragraphs (e)(4)(ii),
and (e)(4)(iii), respectively; and by
■ c. Removing paragraph (f).
■
■
■

3. Section 103.7 is amended by:
a. Revising paragraphs (b) and (c);
b. Redesignating paragraph (d) as
paragraph (f);
■ c. Adding new paragraphs (d) and (e);
and by
■ d. Revising newly redesignated
paragraph (f).
The revisions and additions read as
follows:
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■
■
■

§ 103.7

Fees.

*

*
*
*
*
(b) Amounts of fees. (1) Prescribed
fees and charges. (i) USCIS fees. A
request for immigration benefits
submitted to USCIS must include the
required fee as prescribed under this
section. The fees prescribed in this

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section are associated with the benefit,
the adjudication, and the type of request
and not solely determined by the form
number listed below. The term ‘‘form’’ as
defined in 8 CFR part 1, may include a
USCIS-approved electronic equivalent
of such form as USCIS may prescribe on
its official Web site at http//
www.uscis.gov.
(A) Certification of true copies: $2.00
per copy.
(B) Attestation under seal: $2.00 each.
(C) Biometric services (Biometric Fee).
For capturing, storing, or using
biometrics (Biometric Fee). A service fee
of $85 will be charged of any individual
who is required to have biometrics
captured, stored, or used in connection
with an application or petition for
certain immigration and naturalization
benefits (other than asylum), whose
application fee does not already include
the charge for biometric services. No
biometric services fee is charged when:
(1) A written request for an extension
of the approval period is received by
USCIS prior to the expiration date of
approval of an Application for Advance
Processing of Orphan Petition, if a
Petition to Classify Orphan as an
Immediate Relative has not yet been
submitted in connection with an
approved Application for Advance
Processing of Orphan Petition. This
extension without fee is limited to one
occasion. If the approval extension
expires prior to submission of an
associated Petition to Classify Orphan as
an Immediate Relative, then a complete
application and fee must be submitted
for a subsequent application.
(2) The application or petition fee for
the associated benefit request has been
waived under paragraph (c) of this
section; or
(3) The associated benefit request is
an Application for Posthumous
Citizenship (Form N–644); Refugee/
Asylee Relative Petition (Form I–730);
Application for T Nonimmigrant Status
(Form I–914); Petition for U
Nonimmigrant Status (Form I–918);
Application for Naturalization (Form N–
400) by an applicant who meets the
requirements of sections 328 or 329 of
the Act with respect to military service
under paragraph (b)(1)(i)(WW) of this
section; Application to Register
Permanent Residence or Adjust Status
(Form I–485) from an asylee under
paragraph (b)(1)(i)(U) of this section;
Application To Adjust Status under
Section 245(i) of the Act (Supplement A
to Form I–485) from an unmarried child
less than 17 years of age, or when the
applicant is the spouse, or the
unmarried child less than 21 years of
age of a legalized alien and who is
qualified for and has applied for

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voluntary departure under the family
unity program from an asylee under
paragraph (b)(1)(i)(V) of this section; or
a Petition for Amerasian, Widow(er), or
Special Immigrant (Form I–360) meeting
the requirements of paragraphs
(b)(1)(i)(T)(1), (2), (3) or (4) of this
section.
(D) Immigrant visa DHS domestic
processing fees. For DHS domestic
processing and issuance of required
documents after an immigrant visa is
issued by the Department of State: $165.
(E) Request for a search of indices to
historical records to be used in
genealogical research (Form G–1041):
$20. The search fee is not refundable.
(F) Request for a copy of historical
records to be used in genealogical
research (Form G–1041A): $20 for each
file copy from microfilm, or $35 for each
file copy from a textual record. In some
cases, the researcher may be unable to
determine the fee, because the
researcher will have a file number
obtained from a source other than
USCIS and therefore not know the
format of the file (microfilm or hard
copy). In this case, if USCIS locates the
file and it is a textual file, USCIS will
notify the researcher to remit the
additional $15. USCIS will refund the
records request fee only when it is
unable to locate the file previously
identified in response to the index
search request.
(G) Application to Replace Permanent
Resident Card (Form I–90). For filing an
application for a Permanent Resident
Card (Form I–551) in lieu of an obsolete
card or in lieu of one lost, mutilated, or
destroyed, or for a change in name:
$365.
(H) Application for Replacement/
Initial Nonimmigrant Arrival–Departure
Document (Form I–102). For filing a
petition for an application for Arrival/
Departure Record (Form I–94) or
Crewman’s Landing Permit (Form I–95),
in lieu of one lost, mutilated, or
destroyed: $330.
(I) Petition for a Nonimmigrant
Worker (Form I–129). For filing a
petition for a nonimmigrant worker:
$325.
(J) Petition for Nonimmigrant Worker
in CNMI (Form I–129CW). For an
employer to petition on behalf of one or
more beneficiaries: $325 plus a
supplemental CNMI education funding
fee of $150 per beneficiary per year. The
CNMI education funding fee cannot be
waived.
(K) Petition for Alien Fiance´(e) (Form
I–129F). For filing a petition to classify
a nonimmigrant as a fiance´e or fiance´
under section 214(d) of the Act: $340;
there is no fee for a K–3 spouse as
designated in 8 CFR 214.1(a)(2) who is

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the beneficiary of an immigrant petition
filed by a United States citizen on a
Petition for Alien Relative (Form I–130).
(L) Petition for Alien Relative (Form I–
130). For filing a petition to classify
status of an alien relative for issuance of
an immigrant visa under section 204(a)
of the Act: $420.
(M) Application for Travel Document
(Form I–131). For filing an application
for travel document:
(1) $165 for a Refugee Travel
Document for an adult age 16 or older.
(2) $105 for a Refugee Travel
Document for a child under the age of
16.
(3) $360 for advance parole and any
other travel document.
(4) No fee if filed in conjunction with
a pending or concurrently filed
Application to Register Permanent
Residence or Adjust Status (Form I–485)
when that application was filed with a
fee on or after July 30, 2007.
(N) Immigrant Petition for Alien
Worker (Form I–140). For filing a
petition to classify preference status of
an alien on the basis of profession or
occupation under section 204(a) of the
Act: $580.
(O) Application for Advance
Permission to Return to Unrelinquished
Domicile (Form I–191). For filing an
application for discretionary relief
under section 212(c) of the Act: $585.
(P) Application for Advance
Permission to Enter as a Nonimmigrant
(Form I–192). For filing an application
for discretionary relief under section
212(d)(3) of the Act, except in an
emergency case or where the approval
of the application is in the interest of
the United States Government: $585.
(Q) Application for Waiver for
Passport and/or Visa (Form I–193). For
filing an application for waiver of
passport and/or visa: $585.
(R) Application for Permission to
Reapply for Admission into the United
States After Deportation or Removal
(Form I–212). For filing an application
for permission to reapply for an
excluded, deported or removed alien, an
alien who has fallen into distress, an
alien who has been removed as an alien
enemy, or an alien who has been
removed at government expense in lieu
of deportation: $585.
(S) Notice of Appeal or Motion (Form
I–290B). For appealing a decision under
the immigration laws in any type of
proceeding over which the Board of
Immigration Appeals does not have
appellate jurisdiction: $630. The fee will
be the same for appeal of a denial of a
benefit request with one or multiple
beneficiaries. There is no fee for an
appeal or motion associated with a
denial of a petition for a special

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immigrant visa from an Iraqi or Afghan
national who worked for or on behalf of
the U.S. Government in Iraq or
Afghanistan.
(T) Petition for Amerasian, Widow(er),
or Special Immigrant (Form I–360). For
filing a petition for an Amerasian,
Widow(er), or Special Immigrant: $405.
The following requests are exempt from
this fee:
(1) A petition seeking classification as
an Amerasian;
(2) A self–petitioning battered or
abused spouse, parent, or child of a
United States citizen or lawful
permanent resident;
(3) A Special Immigrant Juvenile; or
(4) An Iraqi or Afghan national who
worked for, or on behalf of the U.S.
Government in Iraq or Afghanistan.
(U) Application to Register Permanent
Residence or Adjust Status (Form I–
485). For filing an application for
permanent resident status or creation of
a record of lawful permanent residence:
(1) $985 for an applicant 14 years of
age or older; or
(2) $635 for an applicant under the
age of 14 years when it is:
(i) Submitted concurrently for
adjudication with the Form I–485 of a
parent;
(ii) The applicant is seeking to adjust
status as a derivative of his or her
parent; and
(iii) The child’s application is based
on a relationship to the same individual
who is the basis for the child’s parent’s
adjustment of status, or under the same
legal authority as the parent.
(3) There is no fee if an applicant is
filing as a refugee under section 209(a)
of the Act.
(V) Application to Adjust Status
under section 245(i) of the Act
(Supplement A to Form I–485).
Supplement A to Form I–485 for
persons seeking to adjust status under
the provisions of section 245(i) of the
Act: $1,000. There is no fee when the
applicant is an unmarried child less
than 17 years of age, or when the
applicant is the spouse, or the
unmarried child less than 21 years of
age of a legalized alien and who is
qualified for and has applied for
voluntary departure under the family
unity program.
(W) Immigrant Petition by Alien
Entrepreneur (Form I–526). For filing a
petition for an alien entrepreneur:
$1,500.
(X) Application To Extend/Change
Nonimmigrant Status (Form I–539). For
filing an application to extend or change
nonimmigrant status: $290.
(Y) Petition to Classify Orphan as an
Immediate Relative (Form I–600). For
filing a petition to classify an orphan as

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an immediate relative for issuance of an
immigrant visa under section 204(a) of
the Act. Only one fee is required when
more than one petition is submitted by
the same petitioner on behalf of orphans
who are brothers or sisters: $720.
(Z) Application for Advance
Processing of Orphan Petition (Form I–
600A). For filing an application for
advance processing of orphan petition.
(When more than one petition is
submitted by the same petitioner on
behalf of orphans who are brothers or
sisters, only one fee will be required.):
$720. No fee is charged if Form I–600
has not yet been submitted in
connection with an approved Form I–
600A subject to the following
conditions:
(1) The applicant requests an
extension of the approval in writing and
the request is received by USCIS prior
to the expiration date of approval.
(2) The applicant’s home study is
updated and USCIS determines that
proper care will be provided to an
adopted orphan.
(3) A no fee extension is limited to
one occasion. If the Form I–600A
approval extension expires prior to
submission of an associated Form I–600,
then a complete application and fee
must be submitted for any subsequent
application.
(AA) Application for Waiver of
Ground of Inadmissibility (Form I–601).
For filing an application for waiver of
grounds of inadmissibility: $585.
(BB) Application for Waiver of the
Foreign Residence Requirement (under
Section 212(e) of the Act) (Form I–612).
For filing an application for waiver of
the foreign residence requirement under
section 212(e) of the Act: $585.
(CC) Application for Status as a
Temporary Resident under Section
245A of the Act (Form I–687). For filing
an application for status as a temporary
resident under section 245A(a) of the
Act: $1,130.
(DD) Application for Waiver of
Grounds of Inadmissibility under
Sections 245A or 210 of the Act (Form
I–690). For filing an application for
waiver of a ground of inadmissibility
under section 212(a) of the Act in
conjunction with the application under
sections 210 or 245A of the Act, or a
petition under section 210A of the Act:
$200.
(EE) Notice of Appeal of Decision
under Sections 245A or 210 of the Act
(or a petition under section 210A of the
Act) (Form I–694). For appealing the
denial of an application under sections
210 or 245A of the Act, or a petition
under section 210A of the Act: $755.
(FF) Application to Adjust Status
from Temporary to Permanent Resident

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(Under Section 245A of Public Law 99–
603) (Form I–698). For filing an
application to adjust status from
temporary to permanent resident (under
section 245A of Public Law 99–603):
$1020. The adjustment date is the date
of filing of the application for
permanent residence or the applicant’s
eligibility date, whichever is later.
(GG) Petition to Remove the
Conditions of Residence based on
marriage (Form I–751). For filing a
petition to remove the conditions on
residence based on marriage: $505.
(HH) Application for Employment
Authorization (Form I–765): $380; no
fee if filed in conjunction with a
pending or concurrently filed
Application to Register Permanent
Residence or Adjust Status (Form I–485)
when that request was filed with a fee
on or after July 30, 2007.
(II) Petition to Classify Convention
Adoptee as an Immediate Relative
(Form I–800).
(1) There is no fee for the first Form
I–800 filed for a child on the basis of an
approved Application for Determination
of Suitability to Adopt a Child from a
Convention Country (Form I–800A)
during the approval period.
(2) If more than one Form I–800 is
filed during the approval period for
different children, the fee is $720 for the
second and each subsequent petition
submitted.
(3) If the children are already siblings
before the proposed adoption, however,
only one filing fee of $720 is required,
regardless of the sequence of submission
of the immigration benefit.
(JJ) Application for Determination of
Suitability to Adopt a Child from a
Convention Country (Form I–800A). For
filing an application for determination
of suitability to adopt a child from a
Convention country: $720.
(KK) Request for Action on Approved
Application for Determination of
Suitability to Adopt a Child from a
Convention Country (Form I–800A,
Supplement 3). This filing fee is not
charged if Form I–800 has not been filed
based on the approval of the Form I–
800A, and Form I–800A Supplement 3
is filed in order to obtain a first
extension of the approval of the Form I–
800A: $360.
(LL) Application for Family Unity
Benefits (Form I–817). For filing an
application for voluntary departure
under the Family Unity Program: $435.
(MM) Application for Temporary
Protected Status (Form I–821). For first
time applicants: $50. This $50
application fee does not apply to reregistration.
(NN) Application for Action on an
Approved Application or Petition (Form

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I–824). For filing for action on an
approved application or petition: $405.
(OO) Petition by Entrepreneur to
Remove Conditions (Form I–829). For
filing a petition by entrepreneur to
remove conditions: $3,750.
(PP) Application for Suspension of
Deportation or Special Rule
Cancellation of Removal (Pursuant to
Section 203 of Pub. L. 105–100) (Form
I–881):
(1) $285 for adjudication by the
Department of Homeland Security,
except that the maximum amount
payable by family members (related as
husband, wife, unmarried child under
21, unmarried son, or unmarried
daughter) who submit applications at
the same time shall be $570.
(2) $165 for adjudication by the
Immigration Court (a single fee of $165
will be charged whenever applications
are filed by two or more aliens in the
same proceedings).
(3) The $165 fee is not required if the
Form I–881 is referred to the
Immigration Court by the Department of
Homeland Security.
(QQ) Application for Authorization to
Issue Certification for Health Care
Workers (Form I–905): $230.
(RR) Request for Premium Processing
Service (Form I–907). The fee must be
paid in addition to, and in a separate
remittance from, other filing fees. The
request for premium processing fee will
be adjusted annually by notice in the
Federal Register based on inflation
according to the Consumer Price Index
(CPI). The fee to request premium
processing: $1,225. The fee for Premium
Processing Service may not be waived.
(SS) Civil Surgeon Designation. For
filing an application for civil surgeon
designation: $615. There is no fee for an
application from a medical officer in the
U.S. Armed Forces or civilian physician
employed by the U.S. government who
examines members and veterans of the
armed forces and their dependents at a
military, Department of Veterans
Affairs, or U.S. Government facility in
the United States.
(TT) Application for Regional Center
under the Immigrant Investor Pilot
Program (Form I–924). For filing an
application for regional center under the
Immigrant Investor Pilot Program:
$6,230.
(UU) Petition for Qualifying Family
Member of a U–1 Nonimmigrant (Form
I–929). For U–1 principal applicant to
submit for each qualifying family
member who plans to seek an immigrant
visa or adjustment of U status: $215.
(VV) Application to File Declaration
of Intention (Form N–300). For filing an
application for declaration of intention
to become a U.S. citizen: $250.

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(WW) Request for a Hearing on a
Decision in Naturalization Proceedings
(under section 336 of the Act) (Form N–
336). For filing a request for hearing on
a decision in naturalization proceedings
under section 336 of the Act: $650.
There is no fee if filed on or after
October 1, 2004, by an applicant who
has filed an Application for
Naturalization under sections 328 or
329 of the Act with respect to military
service and whose application has been
denied.
(XX) Application for Naturalization
(Form N–400). For filing an application
for naturalization (other than such
application filed on or after October 1,
2004, by an applicant who meets the
requirements of sections 328 or 329 of
the Act with respect to military service,
for which no fee is charged): $595.
(YY) Application to Preserve
Residence for Naturalization Purposes
(Form N–470). For filing an application
for benefits under section 316(b) or 317
of the Act: $330.
(ZZ) Application for Replacement
Naturalization/Citizenship Document
(Form N–565). For filing an application
for a certificate of naturalization or
declaration of intention in lieu of a
certificate or declaration alleged to have
been lost, mutilated, or destroyed; for a
certificate of citizenship in a changed
name under section 343(c) of the Act; or
for a special certificate of naturalization
to obtain recognition as a citizen of the
United States by a foreign state under
section 343(b) of the Act: $345. There is
no fee when this application is
submitted under 8 CFR 338.5(a) or
343a.1 to request correction of a
certificate that contains an error.
(AAA) Application for Certificate of
Citizenship (Form N–600). For filing an
application for a certificate of
citizenship under section 309(c) or
section 341 of the Act for applications
filed on behalf of a biological child:
$600. For applications filed on behalf of
an adopted child: $550. There is no fee
for any application filed by a member or
veteran of any branch of the United
States Armed Forces.
(BBB) Application for Citizenship and
Issuance of Certificate under section 322
of the Act (Form N–600K). For filing an
application for citizenship and issuance
of certificate under section 322 of the
Act: $600, for an application filed on
behalf of a biological child, and $550 for
an application filed on behalf of an
adopted child.
(ii) Other DHS immigration fees. The
following fees are applicable to one or
more of the immigration components of
DHS:
(A) DCL System Costs Fee. For use of
a Dedicated Commuter Lane (DCL)

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located at specific ports-of-entry of the
United States by an approved
participant in a designated vehicle:
$80.00, with the maximum amount of
$160.00 payable by a family (husband,
wife, and minor children under 18 years
of age). Payable following approval of
the application but before use of the
DCL by each participant. This fee is
non-refundable, but may be waived by
DHS. If a participant wishes to enroll
more than one vehicle for use in the
PORTPASS system, he or she will be
assessed with an additional fee of: $42
for each additional vehicle enrolled.
(B) Form I–17. For filing a petition for
school certification: $1,700, plus a site
visit fee of $655 for each location listed
on the form.
(C) Form I–68. For application for
issuance of the Canadian Border Boat
Landing Permit under section 235 of the
Act: $16.00. The maximum amount
payable by a family (husband, wife,
unmarried children under 21 years of
age, and parents of either husband or
wife) shall be $32.00.
(D) Form I–94. For issuance of
Arrival/Departure Record at a land
border port-of-entry: $6.00.
(E) Form I–94W. For issuance of
Nonimmigrant Visa Waiver Arrival/
Departure Form at a land border port-ofentry under section 217 of the Act:
$6.00.
(F) Form I–246. For filing application
for stay of deportation under 8 CFR part
243: $155.00.
(G) Form I–823. For application to a
PORTPASS program under section 286
of the Act—$25.00, with the maximum
amount of $50.00 payable by a family
(husband, wife, and minor children
under 18 years of age). The application
fee may be waived by the district
director. If fingerprints are required, the
inspector will inform the applicant of
the current Federal Bureau of
Investigation fee for conducting
fingerprint checks prior to accepting the
application fee. Both the application fee
(if not waived) and the fingerprint fee
must be paid to CBP before the
application will be processed. The
fingerprint fee may not be waived. For
replacement of PORTPASS
documentation during the participation
period: $25.00.
(H) Form I–901. For remittance of the
I–901 SEVIS fee for F and M students:
$200. For remittance of the I–901 SEVIS
fee for certain J exchange visitors: $180.
For remittance of the I–901 SEVIS fee
for J–1 au pairs, camp counselors, and
participants in a summer work/travel
program: $35. There is no I–901 SEVIS
fee remittance obligation for J exchange
visitors in federally-funded programs
with a program identifier designation

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prefix that begins with G–1, G–2, G–3 or
G–7.
(I) Special statistical tabulations—a
charge will be made to cover the cost of
the work involved: DHS Cost.
(J) Set of monthly, semiannual, or
annual tables entitled ‘‘Passenger Travel
Reports via Sea and Air’’: $7.00.
Available from DHS, then the
Immigration & Naturalization Service,
for years 1975 and before. Later editions
are available from the United States
Department of Transportation, contact:
United States Department of
Transportation, Transportation Systems
Center, Kendall Square, Cambridge, MA
02142.
(K) Classification of a citizen of
Canada to be engaged in business
activities at a professional level
pursuant to section 214(e) of the Act
(Chapter 16 of the North American Free
Trade Agreement): $50.00.
(L) Request for authorization for
parole of an alien into the United States:
$65.00.
(2) Fees for copies of records. Fees for
production or disclosure of records
under 5 U.S.C. 552 shall be charged in
accordance with the regulations of the
Department of Homeland Security at 6
CFR 5.11.
(3) Adjustment to fees. The fees
prescribed in paragraph (b)(1)(i) of this
section may be adjusted annually by
publication of an inflation adjustment.
The inflation adjustment will be
announced by a publication of a notice
in the Federal Register. The adjustment
shall be a composite of the Federal
civilian pay raise assumption and nonpay inflation factor for that fiscal year
issued by the Office of Management and
Budget for agency use in implementing
OMB Circular A–76, weighted by pay
and non-pay proportions of total
funding for that fiscal year. If Congress
enacts a different Federal civilian pay
raise percentage than the percentage
issued by OMB for Circular A–76, the
Department of Homeland Security may
adjust the fees, during the current year
or a following year to reflect the enacted
level. The prescribed fee or charge shall
be the amount prescribed in paragraph
(b)(1)(i) of this section, plus the latest
inflation adjustment, rounded to the
nearest $5 increment.
(4) Fees for immigration court and
Board of Immigration Appeals. Fees for
proceedings before immigration judges
and the Board of Immigration Appeals
are provided in 8 CFR 1103.7.
(c) Waiver of fees. (1) Eligibility for a
fee waiver. Discretionary waiver of the
fees provided in paragraph (b)(1)(i) of
this section are limited as follows:
(i) The party requesting the benefit is
unable to pay the prescribed fee.

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(ii) A waiver based on inability to pay
is consistent with the status or benefit
sought including requests that require
demonstration of the applicant’s ability
to support himself or herself, or
individuals who seek immigration
status based on a substantial financial
investment.
(2) Requesting a fee waiver. To request
a fee waiver, a person requesting an
immigration benefit must submit a
written request for permission to have
their request processed without
payment of a fee with their benefit
request. The request must state the
person’s belief that he or she is entitled
to or deserving of the benefit requested,
the reasons for his or her inability to
pay, and evidence to support the
reasons indicated. There is no appeal of
the denial of a fee waiver request.
(3) USCIS fees that may be waived. No
fee relating to any application, petition,
appeal, motion, or request made to U.S.
Citizenship and Immigration Services
may be waived except for the following:
(i) Biometric Fee,
(ii) Application to Replace Permanent
Resident Card,
(iii) Petition for a CNMI–Only
Nonimmigrant Transitional Worker,
(iv) Application for Travel Document
when filed to request humanitarian
parole,
(v) Application for Advance
Permission to Return to Unrelinquished
Domicile,
(vi) Notice of Appeal or Motion, when
there is no fee for the underlying
application or petition or that fee may
be waived,
(vii) Petition to Remove the
Conditions of Residence based on
marriage (Form I–751),
(viii) Application for Employment
Authorization,
(ix) Application for Family Unity
Benefits,
(x) Application for Temporary
Protected Status,
(xi) Application for Suspension of
Deportation or Special Rule
Cancellation of Removal (pursuant to
section 203 of Pub. L. 105–110),
(xii) Application to File Declaration of
Intention, Request for a Hearing on a
Decision in Naturalization Proceedings
(under section 336 of the INA),
(xiii) Application for Naturalization,
(xiv) Application to Preserve
Residence for Naturalization Purposes,
(xv) Application for Replacement
Naturalization/Citizenship Document,
(xvi) Application for Certificate of
Citizenship,
(xvii) Application for Citizenship and
Issuance of Certificate under section 322
of this Act, and
(xviii) Any fees associated with the
filing of any benefit request by a VAWA

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Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Rules and Regulations

self-petitioner or under sections
101(a)(15)(T) (T visas), 101(a)(15)(U) (U
visas), 106 (battered spouses of A, G, E–
3, or H nonimmigrants), 240A(b)(2)
(battered spouse or child of a lawful
permanent resident or U.S. citizen), and
244(a)(3) (Temporary Protected Status),
of the Act (as in effect on March 31,
1997).
(4) The following fees may be waived
only for an alien for which a
determination of their likelihood of
becoming a public charge under section
212(a)(4) of the Act is not required at the
time of an application for admission or
adjustment of status.:
(i) Application for Advance
Permission to Enter as Nonimmigrant;
(ii) Application for Waiver for
Passport and/or Visa;
(iii) Application to Register
Permanent Residence or Adjust Status;
(iv) Application for Waiver of
Grounds of Inadmissibility.
(5) Immigration Court fees. The
provisions relating to the authority of
the immigration judges or the Board to
waive fees prescribed in paragraph (b) of
this section in cases under their
jurisdiction can be found at 8 CFR
1003.8 and 1003.24.
(6) Fees under the Freedom of
Information Act (FOIA). FOIA fees may
be waived or reduced if DHS determines
that such action would be in the public
interest because furnishing the
information can be considered as
primarily benefiting the general public.
(d) Exceptions and exemptions. The
Director of USCIS may approve and
suspend exemptions from any fee
required by paragraph (b)(1)(i) of this
section or provide that the fee may be
waived for a case or specific class of
cases that is not otherwise provided in
this section, if the Director determines
that such action would be in the public
interest and the action is consistent with
other applicable law. This discretionary
authority will not be delegated to any
official other than the USCIS Deputy
Director.
(e) Premium processing service. A
person submitting a request to USCIS
may request 15 calendar day processing
of certain employment-based
immigration benefit requests.
(1) Submitting a request for premium
processing. A request for premium
processing must be submitted on the
form prescribed by USCIS, including the
required fee, and submitted to the
address specified on the form
instructions.
(2) 15-day limitation. The 15 calendar
day processing period begins when
USCIS receives the request for premium
processing accompanied by an eligible

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employment-based immigration benefit
request.
(i) If USCIS cannot reach a final
decision on a request for which
premium processing was requested, as
evidenced by an approval notice, denial
notice, a notice of intent to deny, or a
request for evidence, USCIS will refund
the premium processing service fee, but
continue to process the case.
(ii) USCIS may retain the premium
processing fee and not reach a
conclusion on the request within 15
days, and not notify the person who
filed the request, if USCIS opens an
investigation for fraud or
misrepresentation relating to the benefit
request.
(3) Requests eligible for premium
processing.
(i) USCIS will designate the categories
of employment-related benefit requests
that are eligible for premium processing.
(ii) USCIS will announce by its
official Internet Web site, currently
http://www.uscis.gov, those requests for
which premium processing may be
requested, the dates upon which such
availability commences and ends, and
any conditions that may apply.
(f) Authority to certify records. The
Director of USCIS, or such officials as he
or she may designate, may certify
records when authorized under 5 U.S.C.
552 or any other law to provide such
records.
PART 204—IMMIGRANT PETITIONS
4. 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.

5. Section 204.6 is amended by
revising paragraph (m)(6) to read as
follows:

■

§ 204.6
aliens.

Petitions for employment creation

*

*
*
*
*
(m) * * *
(6) Termination of participation of
regional centers. To ensure that regional
centers continue to meet the
requirements of section 610(a) of the
Appropriations Act, a regional center
must provide USCIS with updated
information to demonstrate the regional
center is continuing to promote
economic growth, improved regional
productivity, job creation, or increased
domestic capital investment in the
approved geographic area. Such
information must be submitted to USCIS
on an annual basis, on a cumulative
basis, and/or as otherwise requested by
USCIS, using a form designated for this
purpose. USCIS will issue a notice of

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intent to terminate the participation of
a regional center in the pilot program if
a regional center fails to submit the
required information or upon a
determination that the regional center
no longer serves the purpose of
promoting economic growth, including
increased export sales, improved
regional productivity, job creation, and
increased domestic capital investment.
The notice of intent to terminate shall
be made upon notice to the regional
center and shall set forth the reasons for
termination. The regional center must
be provided 30 days from receipt of the
notice of intent to terminate to offer
evidence in opposition to the ground or
grounds alleged in the notice of intent
to terminate. If USCIS determines that
the regional center’s participation in the
Pilot Program should be terminated,
USCIS shall notify the regional center of
the decision and of the reasons for
termination. As provided in 8 CFR
103.3, the regional center may appeal
the decision to USCIS within 30 days
after the service of notice.
*
*
*
*
*
PART 244—TEMPORARY PROTECTED
STATUS FOR NATIONALS OF
DESIGNATED STATES
4. The authority citation for part 244
continues to read as follows:

■

Authority: 8 U.S.C. 1103, 1254, 1254a note,
8 CFR part 2.
§ 244.20
■

[Removed]

5. Section 244.20 is removed.

PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
6. The authority citation for part 274a
continues to read as follows:

■

Authority: 8 U.S.C. 1101, 1103, 1324a;
Title VII of Public Law 110–229; 8 CFR part
2.

7. Section 274a.12 is amended by
revising paragraphs (a)(8) and (a)(11) to
read as follows:

■

§ 274a.12 Classes of aliens authorized to
accept employment.

(a) * * *
(8) An alien admitted to the United
States as a nonimmigrant pursuant to
the Compact of Free Association
between the United States and of the
Federated States of Micronesia, the
Republic of the Marshall Islands, or the
Republic of Palau;
*
*
*
*
*
(11) An alien whose enforced
departure from the United States has
been deferred in accordance with a
directive from the President of the
United States to the Secretary.

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Employment is authorized for the
period of time and under the conditions

established by the Secretary pursuant to
the Presidential directive;
*
*
*
*
*
Janet Napolitano,
Secretary.
[FR Doc. 2010–23725 Filed 9–23–10; 8:45 am]

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