I-485 PC Vacate Supporting Statement 20210209

SUPPORTING STATEMENT FOR

Application to Register Permanent Residence or Adjust Status

OMB Control No.: 1615-0023

COLLECTION INSTRUMENT(S): Form I-485. Supplement A, and Supplement J

A. Justification

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

Section 245 of the Immigration and Nationality Act (INA) is the primary law that provides for the adjustment of status of foreign nationals in the United States to that of a lawful permanent resident. INA Section 245A provides for the adjustment of status of “legalization” applicants.  INA Section 209 provides for the adjustment of status of asylees and refugees. Special laws (cited below) provide for the adjustment of status of certain Afghan and Iraqi nationals. INA Section 249 provides for the “registry” of lawful permanent residence for persons residing continuously in the United States since before January 1, 1972.

Section 7611 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), Liberian Refugee Immigration Fairness (LRIF), allows Liberian nationals and certain family members living in the United States who meet the statute’s eligibility requirements to apply to adjust status to become lawful permanent residents. 

INA Section 291 provides that “whenever any person makes an application for a visa . . . or makes an application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the . . . immigrant . . . status claimed.

INA Section 204(b) states:

Investigation; consultation; approval; authorized to grant preference status. After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to employment-based immigrant [Form I-140] petitions to accord a status under section 203(b)(2) or 203(b), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is eligible for preference under subsection (a) or (b) of 203(b), approve the petition.

INA Section 204(e) states:

Subsequent finding of non-entitlement to preference classification. Nothing in this section shall be construed to entitle an immigrant, on behalf of whom a petition under this section is approved, to be admitted to the United States as an immigrant under subsection (a), (b), or (c) of section 203 . . . if upon his arrival at a port of entry in the United States he is found not to be entitled to such classification.

The employment-based immigrant visa process generally involves a multi-step process that may involve various U.S. governmental departments, including USCIS, DOL, and the U.S. Department of State (DOS).

Because of the passage of time between the approval of the labor certification process, the approval of the employment-based immigrant petition [Form I-140] process, and adjustment of status, [Form I-485] process, this information collection is necessary to ensure that the applicant is still entitled to employment-based immigrant visa classification under INA Section 203(b) and is not inadmissible to the United States at the time the Form I-485 is filed and adjudicated. Regarding inadmissibility grounds that this information collection relates to see INA Section 212(a)(5)(A); INA 212(a)(4).

Additionally, Section 106(c) of The American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat. 1251 (“AC21”), amended INA Section 204 by adding subsection (j), titled “Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent Residence.” INA Section 204(j) states:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to INA section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

Importantly, AC21 created a parallel provision at INA Section 212(a)(5)(A)(iv) that extended the validity of any underlying labor certification if the conditions of INA Section 204(j) are satisfied.

Authority: INA Section 245 and 8 CFR 245.1 et seq.; INA Section 245A and 8 CFR 245(a).1 et seq.; INA Section 209 and 8 CFR 209.1 et seq.; Section 1059 of Public Law 109-163, as amended by Public Law 110-36; Section 1244 of Public Law 110-181, as amended by section 602(b)(9) of Public Law 111-8; Section 602(b) of Public Law 111-8; INA Section 249 and 8 CFR 249.1 et seq; INA Section 291; INA Section 204(b); INA Section 204(e); INA Section 212(a)(5)(A); INA Section 212(a)(4); INA Section 204(j); Section 902 of Public Law 105-277 (HRIFA).

Authority: INA Section 245and 8 CFR 245.1 et seq.; INA Section 245A and 8 CFR 245(a).1 et seq.; INA Section 209 and 8 CFR 209.1 et seq.; Section 1059 of Public Law 109-163, as amended by Public Law 110-36; Section 1244 of Public Law 110-181, as amended by section 602(b)(9) of Public Law 111-8; Section 602(b) of Public Law 111-8; INA Section 249 and 8 CFR 249.1 et seq; INA Section 291; INA Section 204(b); INA Section 204(e); INA Section 212(a)(5)(A); INA Section 212(a)(4); INA Section 204(j); Section 902 of Public Law 105-277 (HRIFA); Section 7611 of Public Law 116-92 (LRIF).

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

The data collected on these forms are used by U.S. Citizenship and Immigration Services (USCIS) to determine eligibility for the requested immigration benefit.  The forms serve the purpose of standardizing requests for benefits and ensuring that applicants provide all essential information required for USCIS to assess eligibility and adjudicate the applications. Form I-485 is used by all applicants seeking to adjust status to permanent resident under INA section 245(a). Supplement A to Form I-485 is used by a very small subset of applicants seeking to adjust status under INA section 245(i). The Form I-485 instructions provide general guidance applicable to all applicants for adjustment of status, along with additional instructions that provide guidance specific to an applicant’s particular immigrant category under which they are filing (such as family-based, employment-based, etc.).

Supplement A to Form I-485 is used by a subset of applicants seeking to adjust status under INA section 245(i). 

Supplement J will be used by applicants whose adjustment of status is based on an approved employment-based immigrant visa petition that requires a job offer.

Like all adjustment applicants, applicants applying to adjust status based on LRIF will use Form I-485. USCIS needs the information collected on Form I-485 to determine if an applicant is eligible to adjust status based on LRIF.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also describe any consideration of using information technology to reduce burden.

The use of the Form I-485, Form I-485 Supplement A, Supplement J, and the Instructions for filing provide the most efficient means of collecting and processing the information needed to determine eligibility for individuals to acquire permanent residence status through adjustment of status.  The forms can be completed electronically but currently cannot be filed electronically.

Forms I-485 and I485A will be available electronically at www.uscis.gov/ keyword search “Form I-485.”

USCIS is in the process of investigating the requirements for electronic submission of Forms I-485 and I-485A. Currently, respondents can access and complete the forms online but they must submit the completed application by mail.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in Item 2 above.

USCIS has investigated its internal processes, files and data as well as those of other Federal agencies that may service the same population. In an effort to minimize collecting duplicate information, USCIS reviews the applications and make a request for specific information using the I-797.

The information collected via the I-485 and its associated instructions collect information necessary to adjudicate the applicant’s request. Some pieces of the data collected here may be done so via instruments that other agencies utilize, but the bulk of the information necessary to adjudicate the application for adjustment of status must be up-to-date at the time of the request and decision. Because of the extensive eligibility requirements for adjustment of status, attempting to gather information from other agencies that might have a few select parts of the required data and then verifying the authenticity and timeliness of the detail would require time beyond what currently is required to process the application. This would increase the cost for the applicant beyond the current fee charged due to the additional processing time that investigating, obtaining, and verifying the other agency’s information would require.

5. If the collection of information impacts small businesses or other small entities (Item 5 of OMB Form 83-I), describe any methods used to minimize burden.

The collection of information does not have an impact on small businesses or other small entities.

6. Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

If this information is not collected, it would hinder USCIS’s ability to accept and analyze information submitted by applicants for permanent residence status. 

7. Explain any special circumstances that would cause an information collection to be conducted in a manner:

• Requiring respondents to report information to the agency more often than quarterly;

• Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

• Requiring respondents to submit more than an original and two copies of any document;

• Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records for more than three years;

• In connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;

• Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

• That includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

• Requiring respondents to submit proprietary trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.

This information collection is conducted in a manner consistent with the guidelines in 5 CFR 1320.5(d)(2).

8. If applicable, provide a copy and identify the data and page number of publication in the Federal Register of the agency’s notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years - even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

On 3/09/2020, the Supreme Court vacated USCIS RIN 1615-AA22, Inadmissibility on Public Charge Grounds (short title: Public Charge Rule). As a result of the vacatur, USCIS is rescinding all changes made in the Public Charge Final Rule. Changes associated with this rule will be removed from information collection instruments that were impacted by the rule. Changes to respondent, hour burden, and cost burden estimates as a result of the Public Charge Rule will also be reverted.

USCIS did not publish a notice in the Federal Register. This submission is made under 5 CFR 1320.13.

9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

USCIS does not provide any payment for benefit sought.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation or agency policy.

The Privacy Act of 1974 (Public Law 93-589) mandates that personal information solicited from individuals completing federal records and forms be kept confidential. The respondent is informed prior to submission that USCIS may provide this information to other agencies.

The PIA associated with this information collection is:

• DHS/USCIS/016(a) CLAIMS 3

The system of records notices associated with this information collection are:

• DHS/USCIS/ICE/CBP-001 A-File SORN

• DHS/USCIS-007 Benefits Information System (BIS) SORN

• DHS/USCIS-018 Immigration Biometric and Background Check

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

USCIS asks questions of a sensitive nature regarding past behavior and activities.  These questions are necessary to determine eligibility of the applicant for adjustment to permanent residence status as required by law.  Sensitive questions are asked to determine: whether an individual might be inadmissible under INA 212 (a)(3) (A)-(F) – Security Grounds for Unlawful Activity, Control or Overthrow of the U.S. Government, Terrorist Activities, Adverse Foreign Policy Consequence, Communist or Totalitarian Affiliation; whether an individual might be inadmissible under INA 212 (a)(2)(A)(i)(I) – Conviction or Commission of a Crime Involving Moral Turpitude (CIMT) or INA 212(a)(2)(A)(i)(II), (B), or (C) – Controlled Substance Violations, Multiple Criminal Convictions, or Controlled Substance Traffickers; or whether an individual might be inadmissible under INA 212 (a)(2)(D)(i) and (ii) – coming to the United Sates solely, principally, or incidentally to engage in prostitution or an unlawful commercialized vice.

12. Provide estimates of the hour burden of the collection of information. The statement should:

• Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.

• If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens in Item 13 of OMB Form 83-I.

• Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included in Item 14.

Type of Respondent	Form Name / Form Number	No. of Respondents	No. of Responses per Respondent	Total Number of Responses	Avg. Burden per Response (in hours)	Total Annual Burden (in hours)	Avg. Hourly Wage Rate	Total Annual Respondent Cost
Individuals or Households	Application to Register Permanent Residence or Adjust Status, Form I-485	578,708	1	578,708	6.254	3,619,240	$37.55	$135,902,456
Individuals or Households	Supplement A to Form I-485, Adjustment of Status Under Section 245(i), Form I-485A	29,213	1	29,213	1.250	36,516	$37.55	$1,371,185
Individuals or Households	Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), Supplement J	37,358	1	37,358	1.000	37,358	$37.55	$1,402,793
Individuals or Households	Biometrics Processing	578,708	1	578,708	1.170	677,088	$37.55	$25,424,668
Total				1,223,987		4,370,202		$164,101,102

* The above Average Hourly Wage Rate is the May 2019 Bureau of Labor Statistics average wage for All Occupations of $25.72 times the wage rate benefit multiplier of 1.46 (to account for benefits provided) equaling $37.55. The selection of “All Occupations” was chosen because respondents to this collection could be expected from any occupation.

13. Provide an estimate of the total annual cost burden to respondents or record keepers resulting from the collection of information. (Do not include the cost of any hour burden shown in Items 12 and 14).

• The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life); and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

• If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

• Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995; (2) to achieve regulatory compliance with requirements not associated with the information collection; (3) for reasons other than to provide information or keep records for the government; or, (4) as part of customary and usual business or private practices.

There are no capital or start-up costs associated with this information collection. Any cost burdens to respondents as a result of this collection are identified in question 14. 

However, there is a fee charge of:

• $1,140 for filing fee for Form I-485; and $750 (under the age of 14 years)

• $1,000 fee for filing Form I-485A; and

• $85 biometric fee for filing Form I-485; and

Form I-485 respondents will incur costs associated with this collection of information. These costs include, but are not limited to, hiring attorneys, translators or preparers, obtaining copies of documents required for submission, and postage. USCIS estimates the total average cost to respondents to be:

I-485: $490 (average cost) * 578,708 * 70 percent (estimated weighted average) is the percentage of respondent estimated would incur any cost. This totals $198,496,844. The out-of-pocket cost per respondent is estimated at $343 (Calculated: $198,496,844 / 578,708 = $343).

14. Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information. Agencies also may aggregate cost estimates from Items 12, 13, and 14 in a single table.

USCIS establishes its fees using an activity-based costing model to assign costs to an adjudication based on its relative adjudication burden and use of USCIS resources. Fees are established at an amount that is necessary to recover these assigned costs, plus an amount to recover unassigned overhead (which includes the clerical, officer, and managerial time with benefits) and immigration benefits provided without a fee charge. As a consequence of USCIS immigration fees being based on resource expenditures related to the benefit in question, USCIS uses the fee associated with an information collection as a reasonable measure of the collection’s costs to USCIS. USCIS has established the fee for Form I-485 at $1,140, I-485 Supplement A at $1,000, and Biometrics Processing Fee at $85.

The following calculations were used to determine the estimated cost to the Government:

Form I-485

• Estimated number of respondents (578,708) x (1) x the $1,140 fee, equaling $659,727,120.

Form I-485, Supplement A

• Estimated number of respondents (29,213) x (1) x the $1,000 fee, equaling $29,213,000.

Form I-485, Supplement J

• The cost to the government for Supplement J is included in the I-485.

Biometrics Processing Fee

• Estimated number of respondents (578,708) x (1) x the $85

Biometrics Fee, equaling $49,190,180.

The total estimated cost to the Government is $708,917,300. The total cost includes the suggested hourly rate for clerical, officer, and managerial time with benefits, plus a percent for the estimated overhead cost for printing, stocking, distributing, and processing of this form.

15. Explain the reasons for any program changes or adjustments reporting in Items 13 or 14 of the OMB Form 83-I.

Data collection Activity/ Instrument	Program Change (hours currently on OMB Inventory)	Program Change (New)	Difference	Adjustment (hours currently on OMB Inventory)	Adjustment (New)	Difference
I-485	2,466,636	3,619,240	1,152,604
I-485A	45,000	36,516	-8,484
I-485J	28,309	37,358	9,049
Biometrics	357,797	677,088	317,291
Total(s)	2,897,742	4,370,202	1,470,460	0	0	0

There is an increase in the estimated annual hour burden due the Public Charge (PC) Vacatur. Specifically, the time burden decrease due to the removal of PC questions and instructions was more than offset by the increase in the number of respondents as the respondent estimate returned to pre-PC levels. There are no other program changes.

Data collection Activity/ Instrument	Program Change (cost currently on OMB Inventory)	Program Change (New)	Difference	Adjustment (cost currently on OMB Inventory)	Adjustment (New)	Difference
I-485	$ 131,702,396	$ 198,496,844	$ 66,794,448			$0
Total(s)	$ 131,702,396	$ 198,496,844	$ 66,794,448	$0	$0	$0

There is an increase in the estimated annual cost burden due to the increase in the estimated number of respondents as the respondent estimate returned to pre-PC levels due to the PC Vacatur. There are no other program changes.

16. For collections of information whose results will be published, outline plans for tabulation, and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

This information collection will not be published for statistical purposes.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

USCIS will display the expiration date for OMB approval of this information collection.

18. Explain each exception to the certification statement identified in Item 19, “Certification for Paperwork Reduction Act Submission,” of OMB 83-I.

USCIS does not request an exception to the certification of this information collection.

B. Collections of Information Employing Statistical Methods.

There is no statistical methodology involved with this collection.

11