[Federal Register Volume 59, Number 6 (Monday, January 10, 1994)]
[Proposed Rules]
[Pages 1308-1317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-298]
[[Page Unknown]]
[Federal Register: January 10, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 103
[INS No. 1384-92; AG Order No. 1821-93]
RIN 1115-AD18
Adjustment to the Examinations Fee Schedule
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to adjust the current Examinations Fee
schedule for the Immigration and Naturalization Service (INS) in order
to generate sufficient revenue to recover the costs of providing
immigration and naturalization services, and to change procedures and
charges for the Petition for a Nonimmigrant Worker, Form I-129, in
response to INS and user experiences. The fee adjustment is needed to
comply with specific Federal immigration laws and the Federal user fee
statute and regulations, which require the recipients of special
benefits from Government services that are not directed to the public
at large to bear the costs to the Government of providing those
services. The fees proposed in this rule result from an analysis of
adjudication and naturalization services and associated costs for
fiscal years 1993 and 1994, and are calculated to recover the costs of
providing these special services and benefits. This proposed rule
ensures that funds will be available to continue to improve the quality
of service to users. Its financial impact on users of the services is
small. In most cases the proposed fee increase is five dollars. In the
aggregate this proposed fee increase is slightly less than the
projected change in the consumer price index since the last general fee
increase in April 1991.
DATES: Written comments must be submitted on or before February 9,
1994.
ADDRESSES: Comments must be submitted in writing for consideration.
Please submit written comments, in triplicate, to the Director, Policy
Directives and Instructions Branch; Immigration and Naturalization
Service; 425 I Street, NW.; room 5307; Washington, DC 20536-0002. To
ensure proper handling, please reference INS No. 1384-92 on your
correspondence.
FOR FURTHER INFORMATION CONTACT:
Barbara J. Atherton, Chief, Fee Analysis and Operations Branch, Office
of Finance; Immigration and Naturalization Service; 425 I Street, NW.;
room 6240; Washington, DC 20536-0002; telephone 202-616-2754.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Immigration and Naturalization Service (INS) of the Department
of Justice (DOJ) is required by law to charge fees to the users of its
services. Such fees presently comprise about 36 percent of the INS
budget. There are four fee accounts, and the fees which are collected
in each account are used to fund specific services. The four fee
accounts are the Immigration Examinations Fee Account, the Immigration
User Fee Account, the Land Border Inspection Fee Account, and the
Legalization Fee Account. Because the fees in each of these accounts
are designed to recover the costs which are incurred to provide
specific services, they must be reviewed regularly and adjusted as
costs change or more precise cost determination processes become
available. This rule proposes to modify the examinations fee schedule.
The Immigration Examinations Fee Account (Examinations Fee Account)
provides funds for immigration adjudication and naturalization
services. It is funded by a total of 32 separate fees for processing
the various applications used by INS. Examples include applications for
permanent resident status, petitions for relatives, employment
authorization applications, reentry permits, and extensions of
temporary stay. The separate fees currently range from $30 to $140.
To cover the costs of providing adjudication and naturalization
services, it has been determined that a fee increase of 7.5 percent is
needed. This increase reflects inflation since the last general fee
increase in April 1991, the assignment of certain additional costs to
the Examinations Fee Account for services that support adjudications
and naturalization functions, and the costs of investments to improve
services to users. This proposed rule would adjust the current fee
schedule by 7.5 percent.
A. Refining the Fee Development Process
INS has initiated a process of continuous improvement in the
management of the finances of the fee accounts and the development of
fee schedules. Areas that are being addressed over a projected multi-
year time horizon include: Identifying the INS resources consumed in
providing services to our customers which by law must be recovered
through fee revenues; refining definitions of direct and indirect
costs; and refining cost measurement systems, in concert with wider
Department of Justice initiatives to improve financial management
information systems.
Of necessity, to ensure the availability of necessary funds for
maintaining operations, the first phase of this effort has been
identification of INS resource use that must be recovered through fees.
Prior to 1992, INS had not analyzed rigorously the full extent of its
costs related to fee-supported services. In 1992, INS undertook a
comprehensive review of the work that should properly be charged to fee
accounts in order to meet statutory requirements. Extensive information
gathering and analysis were performed as part of this effort. The
aggregate cost of the work in support of the Examinations Fee Account
was computed based on the budget for fiscal year 1993 and the estimated
budget for fiscal year 1994.
This information was used to compute the percentage revenue
increase required to cover the costs, and that percentage, with limited
exceptions, was applied to the existing fee schedule that has been in
place since 1991 to arrive at the proposed fees, through the steps
explained in this proposed rule.
Instead of using the existing fee schedule as a base for the
percentage increases, INS also considered whether it would have been
feasible to base the proposed fees on 1992 cost measurements. INS
rejected this approach because of problems with 1992 data caused by the
transition to a more automated system of productivity measurement.
Future fee adjustments will reflect efforts to refine direct and
indirect cost definitions and measurements, and will address
alternative approaches to the allocation of indirect costs among
applicants for services. At this time, however, the current fee
schedule, with the adjustments specifically identified below, reflects
the best available comprehensive data on service costs, and was
therefore judged to be the soundest foundation for computing the
proposed fee schedules for fiscal year 1994.
II. Directives and Guidelines
INS's examinations fees have been designed in accordance with
legislation, guidance from the Office of Management and Budget (OMB)
and the Department, and accepted principles of ratemaking in regulated
public and commercial enterprises. The overall principle employed is
one of cost causation, which means the fees are designed to cover the
costs associated with providing the services funded through the
Examinations Fee Account.
A. Legislation
The enabling legislation for the Examinations Fee Account is the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1989 (Pub. L. 100-459), a U.S.C. 1356(n),
which provides that the receipts collected shall ``* * * remain
available * * * to reimburse any appropriation the amount paid out of
such appropriation for expenses in providing immigration adjudication
and naturalization services and the collection, safeguarding and
accounting for fees * * *''. The Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act, 1991
(Pub. L. 101-515), 8 U.S.C. 1356(m), provides 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.'' The general authority to
assess fees for services is found in the Independent Offices
Appropriation Act, 1952 (Pub. L. 82-137) (IOAA), 31 U.S.C. 9701,
frequently referred to as the ``user fee statute,'' which provides for
Federal agencies to define special services provided to unique segments
of the population and to charge fees for those services instead of
supporting them through general tax revenues. The IOAA provides that
``* * * each service or thing of value provided by an agency * * * to a
person * * * is to be self-sustaining to the extent possible.'' These
charges, among other things, are to be based on ``* * * [t]he costs to
the Government * * *.''
In 1986, proposed fee increases for adjudication services were
challenged in the Federal District Court for the District of Columbia
on the grounds that the Attorney General lacked authority to impose
fees for the services in question and that, even if the fees were
legally permissible, the specific fees under challenge were arbitrarily
excessive. In Ayuda, Inc. v. Attorney General, 661 F. Supp. 33 (D.D.C.,
1987), the District Court rejected these arguments:
Accordingly, it appearing that the service fees were established
through appropriate administrative procedures after adequate cost
analysis and with opportunity for public participation, and that
they are in all respects consistent with the statutes being
implemented, summary judgment must be granted to the Attorney
General and denied to plaintiffs.
661 F.Supp. at 36.
In upholding the District Court decision, the Court of Appeals held
that:
In light of settled law, we are constrained to conclude that the
INS fees at issue are for a ``service or thing of value'' which
provides the recipients with a special benefit * * *. Since these
procedures are triggered only at the instance of the individual who
seeks, obviously, to benefit from them, this fee regime cannot in
fairness be characterized as an INS effort to charge for activities
that are carried on principally to benefit the public generally. The
benefit is simply too direct and immediate to a specific,
identifiable beneficiary to consider such services as constituting
primarily a broad part of INS' overall mission to serve the public.
Ayuda, Inc. v. Attorney General, 848 F.2d 1297, at 1301 (D.C. Cir.
1988).
B. Office of Management and Budget (OMB) Guidelines
OMB circular A-25, User Charges, states that as a general policy
``a user charge * * * will be assessed against each identifiable
recipient for special benefits derived from Federal activities beyond
those received by the general public.'' The following discussion is
provided:
When a service (or privilege) provides special benefits to an
identifiable recipient beyond those that accrue to the general
public, a charge will be imposed (to recover the full cost to the
Federal Government for providing the special benefit, or the market
price). For example, a special benefit will be considered to accrue
and a user charge will be imposed when a Government service:
(a) Enables the beneficiary to obtain more immediate or
substantial gains or values (which may or may not be measurable in
monetary terms) than those that accrue to the general public (e.g.,
receiving a patent, insurance, or guarantee provision, or a license
to carry on a specific activity or business or various kinds of
public land use); or
(b) Provides business stability or contributes to public
confidence in the business activity of the beneficiary (e.g.,
insuring deposits in commercial banks); or
(c) Is performed at the request of or for the convenience of the
recipient, and is beyond the services regularly received by other
members of the same industry or group or by the general public
(e.g., receiving a passport, visa, airman's certificate, or a
Custom's inspection after regular duty hours).
Circular No. A-25, User Charges, Executive Office of the President,
Office of Management and Budget, July 8, 1993, pp. 2-3.
C. Department of Justice Guidelines
The Department of Justice issued guidance on User Fee Programs in
April 1993. The guidance states that as a general policy ``a charge
shall be imposed to recover the full cost to the Federal Government of
rendering a service that provides specific benefits to an identifiable
recipient above and beyond those that accrue to the public at large.''
The following discussion is provided:
Cost is a financial measurement of resources used in
accomplishing a specified purpose, carrying out an activity, or
completing a unit of work or a specific project * * *. Direct costs
are those which are proximate and directly traceable to the unit of
output for which the fee is charged. Indirect costs are those which
are more distant, general in nature, and not directly traceable to
the product or service produced.
* * * [E]xisting legislation may require the inclusion of costs
for selected activities not directly related to the unit of
performance or product for which a fee is charged. Where this
occurs, both the direct and indirect costs of such activities should
be included in the cost computation.
User Fee Programs, Department of Justice, Justice Management Division,
April 1993, pp. 3 and 12. The policies and procedures followed in the
development of the proposed fee schedules are consistent with this
guidance.
D. Ratemaking Principles
The above-stated policies, as set forth by statute and more fully
developed by OMB and the Department, comport with reasonable standards
for user charges and are strongly supported by the prescriptions of
economic experts with widely recognized credentials in the field of
ratemaking policy. Any other approach would burden taxpayers with costs
that can be traced directly to the needs of specific individuals, not
to society at large.
One of many similar statements on cost of service as a basic
standard of reasonableness is stated as follows in the authoritative
text by Bonbright, Danielsen, and Kamerschen:
No writer whose views on public utility rates command respect
purports to find a single yardstick by sole reference to which rates
may be judged reasonable or socially desirable as distinguished from
rates that are unreasonable or adverse to the public interest. A
complex of tests of acceptability is required just as would be the
case with the tests of a good automobile, a good income-tax law, or
a good poem. Nevertheless, one standard of reasonable rates can
fairly be said to outrank all others in the importance attached to
it by experts and public opinion alike--the standard of costs of
service, often qualified by the stipulation that the relevant cost
is necessary, true (i.e., private and social) cost or cost
reasonably or prudently incurred.* * *
A cost standard of ratemaking has been most generally accepted
in the regulation of the levels of rates charged by private utility
companies. But even more significant is the widespread adherence to
cost, or to some approximation of cost, as a basis of ratemaking
under public ownership* * * *
Bonbright, Danielsen, and Kamerschen, Principles of Public Utility
Rates, Public Utilities Reports, Inc., Arlington, Va., 2nd ed. 1988,
pp. 109-110.
While the foregoing reference is extracted from a discussion of
public utility rates, the rate standard cited also is applicable to
other pricing situations that require cost recovery in a fair and
reasonable manner.
III. Examinations Fee Account
This section describes the major programs funded by the
Examinations Fee Account.
A. Adjudications and Naturalization Program
The function of this program is to process, adjudicate, and
ultimately grant or deny applications and petitions for benefits
provided under the immigration laws of the United States. Adjudications
activities include processing applications for permanent resident
status, petitions for relatives, temporary and permanent worker
petitions, reentry permits, refugee travel documents, extensions of
temporary stay, employment authorizations, and temporary protected
status. Naturalization activities include the examination of aliens to
determine their qualifications for naturalization, administration of
the oath for citizenship, and issuance of citizenship documents.
B. Refugees and Overseas Program
The function of this program is to adjudicate refugee and asylum
applications, conduct investigations for preference and relative visa
petitions, and conduct other records checks and background
investigations as are required at overseas INS offices. Officers
assigned to this program also provide assistance to citizens and lawful
permanent residents abroad regarding adoptions, immigration, or parole
of alien spouses and children, and other benefits under the Immigration
and Nationality Act. They also review requests for the Attorney General
to grant humanitarian parole into the United States for deserving
persons.
C. Information and Records Management
The Information and Records Management program provides a variety
of services critical to the adjudications and naturalization processes.
These services include: Creating, updating, storing, retrieving, and
tracking alien files; responding to inquiries on application status;
providing information to the public, both in-person and by telephone,
on immigration-related matters; printing and distributing application
forms and instructions and providing them to the public.
D. Data and Communications
The Data and Communications program develops and operates INS
automated information systems which support the adjudications and
naturalization program, and operates the identification card production
facility. Adjudications and naturalization support systems are
currently being integrated and consolidated into the Computer Linked
Application Information Management System (CLAIMS), which provides
adjudication support to service centers, district offices, and ports of
entry. The system, which is operating in the service centers and is
being installed in other field offices, reduces application processing
time and response time to inquiries.
IV. Fee Setting Procedures
This section provides a description of INS fee-setting procedures,
including an explanation of the cost bases for setting fees.
Descriptions of the examinations fees and their cost components and an
explanation of the procedures employed by INS to calculate the costs
are included.
A. History of Current Examinations Fees
Policies pertaining to the assessment of INS user fees and their
underlying costs have evolved over 25 years, beginning in 1968. The
Examinations Fee Account itself has a more recent history, starting in
1989. Prior to 1989, all examinations fee revenues were treated as
general revenues of the Federal Government. They are now credited to
the Examinations Fee Account and used to fund related services.
Procedures to compute examinations fees involve the development and
summation of three cost components: direct costs, indirect costs, and a
surcharge to recover the costs of the Refugees and Overseas program.
These three cost components are described more fully below.
Salient developments preceding the analyses that led to this
proposed rule include the issuance in December 1992 of an audit report
prepared by the Office of the Inspector General (OIG) of the Department
of Justice. That report, entitled ``Controls Over Established User Fee
Accounts in the Immigration and Naturalization Service'' (DOJ OIG Audit
Report No. 93-3), stated that INS's accounting system did not identify
properly all costs that ought to be recovered from user fee accounts.
This view is summarized below:
The review of actual program costs disclosed that all identified
costs were charged to the proper user fee accounts. However, the INS
accounting system does not provide usable cost data applicable to
the user fee program and INS program managers had not identified all
the direct program costs that should have been reimbursed from the
user fee accounts. In addition, various INS units providing indirect
support of personnel and services were not receiving user fee
reimbursement commensurate with the level of resources expended * *
* Since valid direct and indirect program costs went unidentified,
appropriated funds essentially subsidized user fee related program
costs that should have been reimbursed from user fee revenue.
DOJ OIG Audit Report No. 93-3, at p. i.
The finding that all program costs were not being recovered from
user fee accounts triggered several actions by INS that culminated in
the current proposed rule. At the same time that the OIG was conducting
its audit, a senior Justice Department official reviewed the fee-
setting process and proposed changes. As a result, the OIG deferred
additional work in this area. According to the audit report:
A plan was developed and approved and the same Justice official
was detailed to compile user fee costs, revise fee schedules as
necessary to collect revenues sufficient to make each account self-
sustaining, and obtain Congressional approval to reprogram INS
appropriations accordingly. This project was initiated in March 1992
and is scheduled to be completed by the end of FY 1992. Since the
project covered most of the problem areas disclosed by our audit, we
deferred additional audit work in this area.
DOJ OIG Audit Report No. 93-3, at p. ii.
The review of the process conducted during 1992 consisted of a
detailed survey and extensive consultations with all INS program
offices to review the extent to which they provide services to fee
account activities, whether they were commensurately reimbursed for
those services, and whether specific service improvement investments
would be appropriate if additional fee account revenues were available.
An initial reallocation (reprogramming) of program costs proposed
earlier by the Attorney General was approved by Congress, with the
effect of properly assigning some costs of user fee activities to the
fee accounts. The budget enacted by Congress for fiscal year 1993
reflected these reallocations.
The 1992 review found that the Attorney General's reprogramming had
substantially corrected the assignment of costs identifiable at that
point as related to fee account activities, with two exceptions: The
costs of legal proceedings and the costs of management and
administration. In the case of these two programs, some costs are being
charged to fee accounts, but not enough to cover the substantial work
associated with the fee account activities.
The review also concluded that although a number of investments
were recommended by review participants, the recommendations generally
anticipated actions that were planned in future budget cycles.
Therefore the investments would generally be addressed as part of INS's
normal budget review process, rather than as a part of the current fee
adjustment process.
This proposed fee increase incorporates the results of this
extensive review of INS programs, inflationary cost increases since the
last general fee increase in April 1991, and the projected costs of
presently budgeted program investments to improve services to INS's
customers.
B. Costs
1. Cost Components
OMB Circular A-25, in its discussion of cost determination for
purposes of setting fees, provides that ``user charges will be
sufficient to recover the full cost to the Federal Government * * * of
providing the service * * *.'' It also provides that those costs shall
include an ``appropriate share of the management and supervisory
costs.'' Circular No. A-25, User Charges, Executive Office of the
President, Office of Management and Budget, July 8, 1993, pp. 3-5.
Direct costs are only the most readily identifiable costs of providing
user services. Each service also has indirect components which,
although not as easily identifiable, are nevertheless causally related
to the costs of providing services. Each examinations fee has three
components: direct costs, indirect costs, and a surcharge to cover the
costs of the Refugees and Overseas Program.
a. Direct costs. Direct costs are those costs directly related to
the processing of a particular application form for a particular
benefit. Direct costs include: the pay of the Adjudications officers
and clerical staff working on each type of application and the costs of
their associated personnel benefits; the costs of Federal Bureau of
Investigation (FBI) name and fingerprint checks; where applicable, the
costs by application of naturalization ceremonies conducted by United
States Courts; and the costs of INS immigration document and card
production. The pay costs are calculated by multiplying average
adjudications processing time by the hourly pay for the average grade
levels of adjudicators and clerks.
b. Indirect costs. Indirect costs reflected in the current fee
structure are defined as the costs of supervisory, management, and
administrative activities, related staff training, records, data
processing, and files services, legal services, and space and support
costs of providing immigration benefits under the Immigration and
Nationality Act and related statutes.
Indirect costs also include costs in the management and
administration portion of the INS budget, such as the costs of the
personnel administration work needed to recruit and pay the officers
and clerks who process customers' applications for benefits. The
activities associated with these costs are no less essential to
providing INS services to its customers than are the direct costs.
These indirect costs are distinguished only by the somewhat greater
complexity of determining the portion of such costs that are
attributable to work done for fee-paying customers. In addition,
indirect costs include the cost of auditing the Examinations Fee
Account by the Department of Justice Inspector General.
c. Surcharge. The costs to carry out the Refugees and Overseas
Program are borne by the Examinations Fee Account, at the direction of
Congress. See section 286(m) of the INA, 8 U.S.C. 1356(m). These costs
are treated as a surcharge that is added to the examinations fees.
2. Cost Transfers
A transfer is the shift of costs from one account to another.
Transfers arise when costs from one account are identified as
appropriately charged to another account. Transfers have been prompted
by cost reviews such as that conducted in 1992 to refine the
identification of costs attributable to user fee activities. Transfers
found in the 1992 review to be necessary to meet statutory requirements
are as follows:
a. Legal proceedings. A review of INS workload statistics
identified the equivalent of 78 additional positions and work years of
legal activities that properly should be charged to Examinations Fee
Account activities. These legal activities include appearances before
the Immigration Court for hearings related to asylum, adjustment of
status, registry, waivers of inadmissibility, and rescission; the
preparation of arguments and briefs for such hearings; appearances
before Federal and state courts for contested naturalization hearings;
appearances in U.S. District Courts in mandamus and declaratory
judgment cases; preparation of arguments, briefs, and litigation
reports in such cases; and associated legal consultations and
preparation of legal memoranda. Also included are resources for support
staff, and Special Assistant U.S. Attorney, Regional Counsel, and
District Counsel positions chargeable for Examinations work. INS will
propose to transfer these 78 positions, work years, and associated
costs from the Salaries and Expenses appropriation to the Examinations
Fee Account. Copies of this review are available upon request.
b. Management and administration. Management and Administration
(M&A) resources have been assigned to the Examinations Fee Account
using a ``distribution-key'' concept. Distribution-key is a term
borrowed from the U.S. Postal Service's cost allocation practice. With
this practice, costs which cannot be directly related to a certain
class or account are distributed on the basis of costs which can be
directly assigned. For example, in the case of mail processing, the
costs associated with supervision of mail clerks (where no direct
statistical assignment mechanisms are in place) are distributed on the
same basis as are the costs for the mail clerks themselves (where
statistical workload measurement systems are in place). See, for
example, Postal Rate Commission, Docket No. R90-1, United States Postal
Service Library Reference F-1, Summary Description of USPS Cost
Development by Segments and Components, fiscal year 1988, pp. 2-2
through 2-5.
For this process, a full-time equivalent work year (referred to as
``work year'' or ``FTE'') was chosen as the distribution-key. Costs
were allocated based upon the percentage distribution of work years
between the Examinations Fee Account and all other accounts in INS. See
Exhibit 1, Derivation of Management and Administration Distribution
Key.
At INS, examinations officer work years relate directly to workload
volume, and the management and administration work that supports the
examinations officers are dependent upon the number of officer work
years. Work years are a useful gauge of the resources needed in each
program because they include the contributions of both full and part-
time staff. Other possible distribution-keys (positions and dollars)
are believed to be inferior to work years. Positions alone are inferior
as a distribution-key because they include only full-time permanent
staff and vacancies. The use of positions would understate proper
assignment levels to the extent that part-time workers are ignored, but
would overstate proper assignment levels to the extent that vacancies
are included. Dollars are also an inferior distribution-key because
they may be skewed by the inclusion of one-time expenditures or other
unique costs.
The distribution-key concept is consistent with the guidance
provided by the Department. The following discussion is provided:
For each overhead activity * * *, estimate, on a rational basis,
approximately what percentage of the amount is indirectly relatable
or incidental to the functions and costs * * * . The percentage
assigned ordinarily should be based on the relative amount of time
or outputs traceable to the particular unit of performance. In the
case of very general, non-traceable activities (e.g., executive
direction or congressional and public affairs), where there are
labor-intensive performance units, general or non-traceable cost
allocations may be predicated on relative employment (costs or full
time personnel equivalents) devoted directly to the fee account
revenue-generating programs vis-a-vis all other programs.
User Fee Programs, Department of Justice, Justice Management Division,
April 1993, pp. 10-11.
To distribute costs properly, based on the distribution-key
concept, INS will propose to transfer 143 positions, 133 work years,
and associated costs from the Salaries and Expenses appropriation to
the Examinations Fee Account. However, INS will not propose to use all
of the resources potentially available as a result of the transfer to
correct documented deficiencies in M&A program support activities in
fiscal year 1994. Rather, INS will propose to use part of these
resources to support additional work years for the Adjudications and
Naturalization Program to ensure good service during the period of
transition when more work will be shifted from district offices to
service centers (the ``Direct Mail III'' program). INS will defer full
use of the resources for program support activities until fiscal year
1995 or 1996, as conditions warrant.
3. Investments to Improve Service Quality
Service quality improvements are made possible by investments in
staff additions and capital assets. One investment which will be
financed by the examinations fee increase will be the continued
expansion of INS service center operations. These expanded automation-
intensive facilities will improve productivity and reduce delays in
application processing operations. The transfer of work now conducted
at the district offices to the service centers will improve processing
at district offices and allow district office staff to devote more time
to those applications which require personal contact with people
applying for benefits.
C. Proposed Fee Increase
The need for increased revenues which underlies the proposed fee
increase was calculated by adjusting the projected total costs of
providing adjudications and naturalization services to include the
transfers and service improvements described above, and comparing the
costs to the revenue projected under the current fee schedule. Because
they are reflected in INS budget projections, the calculation
incorporates the effects of inflation-based cost increases that have
occurred since the last general fee increase in April 1991 and all
other mandatory adjustments to the cost base. This calculation yields a
required percentage revenue increase which, with limited exceptions,
was then uniformly applied to the existing schedule of fees. The
exceptions to this procedure, required because of (i) the consolidation
of forms and (ii) certain technical adjustments, are described below.
Exhibit 2, Projected Examinations Fee Account, shows the projected
fiscal year 1994 resource allocations to the Examinations Fee Account.
The projected transfers from the Salaries and Expenses appropriation,
which are incorporated in Exhibit 2, are shown in Exhibit 3, Projected
Transfers From Salaries and Expenses Appropriation to Examinations Fee
Account.
Exhibit 4, Proposed Examinations Fee Revenue Adjustment, shows how
the proposed fee increase was computed. The calculations are based on
the projected fiscal year 1994 budget, and begin with an estimate of
the funds that will remain in the Examinations Fee Account at the close
of fiscal year 1993.
INS projects that $18.7 million will be carried forward in the
Examinations Fee Account from fiscal year 1993 to fiscal year 1994
(Line 1). Revenue of $314.7 million is anticipated in fiscal year 1994
at the fee levels currently in place (Line 2). The sum of these two
amounts is $333.4 million, which is the total amount projected to be
available for the Examinations Fee Account for fiscal year 1994 in the
absence of a fee increase (Line 3).
INS projects that the costs of Examinations Fee Account programs
for fiscal year 1994 will be $331.5 million (Line 4). Because of the
impossibility of predicting precisely the number of applications and
associated revenue and workload in any given time period, and in order
to ensure that there are sufficient resources to adjudicate
applications, including those currently in process, INS has determined
the need to retain a balance equivalent to one month of costs, or $27.6
million (Line 5). The remainder of that amount, if any, would be
carried forward to the next fiscal year to continue processing
applications. The existence of a carryforward balance is consistent
with INS' past practice. As explained below, technical adjustments were
applied to the fee base for some forms to ensure fair distribution of
costs among users. The net effect of those adjustments is subtracted so
that they will have no net impact on the aggregate INS fee revenue
requirement (Line 6). The algebraic sum of these three amounts is the
total revenue requirement of $356.9 million (Line 7).
Subtracting the revenue requirement from the funds available shows
a revenue shortfall of $23.5 million (Line 8). Dividing this shortfall
by the revenues projected under the current fee schedule produces the
percentage by which the fees must be increased, 7.5 percent (Line 9).
D. Computation of the Fees
The proposed fees for most Immigration and Naturalization forms
were calculated by applying the increase of 7.5 percent to the current
fee, and rounding the result upward or downward to the nearest $5.00.
Fees adjusted in this manner are shown on Exhibit 5.
There were two exceptions to this computational procedure. One
exception is a consequence of forms consolidation actions affecting the
Petition for a Nonimmigrant Worker, I-129, where procedures and charges
have been altered in response to experience with the consolidated forms
and suggestions from users. The new charges associated with the I-129
are described below, and presented in Exhibit 6. The other exception is
associated with technical adjustments to the computational base for
certain forms, as described below and shown in Exhibit 7.
1. Petition For a Nonimmigrant Worker, I-129
On October 4, 1991, INS published a proposed revision of Form I-
129, Petition for a Nonimmigrant Worker (56 FR 50350). This revision
consolidated a number of separate application and petition processes
that had previously been handled on separate application forms, each
with separate fees. To the extent possible, the new form retained the
original fee structure, which was based upon the costs associated with
each separate adjudication.
After the consolidation of Form I-129, INS received a number of
comments and questions regarding the I-129 process. As a result, INS
proposes to revise Form I-129 to incorporate several additional
processes created by the Immigration Act of 1990 (Pub. L. 101-649) and
the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991 (Pub. L. 102-232), and to simplify the application
procedures in response to public comments. For example, INS proposes to
revise procedures in instances where an employer is filing for one
worker to allow the worker's dependents to be included in the petition
instead of requiring separate applications. In addition, INS would no
longer require separate petitions for groups where the members will be
applying for visas at more than one consulate or for visa-exempt
workers applying for admission at different ports of entry.
Current Form I-129 Fee Structure:
The fee for a Petition for a Nonimmigrant Worker consists of a base
fee of $70 plus either:
--$10 per worker if requesting consulate or port-of-entry notification
for visa issuance or admission;
--$80 per worker if requesting a change of status; or
--$50 per worker if requesting an extension of stay.
Proposed Form I-129 Fee Structure:
The proposed fee for a Petition for a Nonimmigrant Worker is $120
per petition plus $10 for each dependent if filing for one worker, and
$100 per petition plus $20 for each worker if filing for more than one
worker. The changes simplify the application process and more fairly
distribute the costs of processing.
Because INS has consolidated actions which were previously
separate, data are not yet available for establishing a fee based upon
actual cost experience. Therefore, the proposed fee is based upon
estimates of these costs.
2. Technical Adjustments to Computation Base for Certain Applications
Before undertaking the percentage computations to arrive at the fee
schedules proposed in this rule, INS reviewed the cost information
supporting the current fee schedule. The information on processing
times and related costs, the costs of FBI name and fingerprint checks,
the costs of naturalization ceremonies conducted by United States
Courts, the costs of INS immigration document and card production, the
indirect costs and the surcharge were examined. (Copies of this
analysis are available upon request.) Some differences were found
between the current fees and the statistical information on the
associated costs. The differences are small, and probably result from
data corrections after the fees were computed.
In order to ensure fair distribution of costs among users, INS
adjusted, upward or downward as necessary, the current fees for forms
where differences were identified, before computing the proposed fee
increase for those forms. INS ensured that this process had no net
effect on the total revenue increase proposal by deducting the revenue
increase that would be caused by the technical adjustments from the
total revenue requirement before calculating the percentage fee revenue
adjustment that would be applied to all forms. As previously noted,
this deduction appears on Line 6 of Exhibit 4, where the fee revision
requirement is calculated.
V. Proposed Fee Adjustments
Proposed fee adjustments are shown in Exhibits 5-7.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered to be
a major rule within the meaning of section 1(b) of E.O. 12291, nor does
this rule have Federalism implications warranting the preparation of a
Federalism Assessment in accordance with E.O. 12612.
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.
List of Subjects in 8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of information, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
Accordingly, part 103 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. Section 103.7, paragraph (b)(1) is amended by revising the
entries listed to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
Form I-17. For filing application for school approval, except in
the case of a school or school system owned or operated as a public
educational institution or system by the United States or a state or
political subdivision thereof--$140.
Form I-90. For filing application for Alien Registration Receipt
Card (Form I-551) in lieu of an obsolete card or in lieu of one lost,
mutilated or destroyed, or in a changed name--$75.
Form I-102. For filing application (Form I-102) for Arrival-
Departure Record (Form I-94) or Crewman's Landing Permit (Form I-95),
in lieu of one lost, mutilated, or destroyed--$65.
* * * * *
Form I-129. For filing a petition for a nonimmigrant worker--$120
per petition plus $10 for each dependent if filing for one worker; $100
per petition plus $20 for each worker if filing for more than one
worker.
Form I-192F. For filing petition to classify nonimmigrant as
fiancee or fiance under section 214(d) of the Act--$75.
* * * * *
Form I-130. For filing petition to classify status of alien
relative for issuance of immigrant visa under section 204(a) of the
Act--$80.
Form I-131. For filing application for issuance of reentry permit--
$70.
Form I-140. For filing petition to classify preference status of an
alien on basis of profession or occupation under section 204(a) of the
Act--$75.
Form I-191. For filing application for discretionary relief under
section 212(c) of the Act--$90.
Form I-192. For filing 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--$90.
Form I-193. For filing application for waiver of passport and/or
visa--$95.
Form I-212. For filing application for permission to reapply for an
excluded or deported alien, an alien who has fallen into distress and
has been removed as an alien enemy, or an alien who has been removed at
Government expense in lieu of deportation--$95.
* * * * *
Form I-360. For filing petition for an Amerasian, Widow(er), or
Special Immigrant--$80, except there is no fee for a petition seeking
classification as an Amerasian.
Form I-485. For filing application for permanent residence status
or creation of a record of lawful permanent residence--$130 for an
applicant 14 years of age or older; $100 for an applicant under the age
of 14 years.
* * * * *
Form I-526. For filing a petition for an alien entrepreneur--$155.
* * * * *
Form I-539. For filing an application to extend or change
nonimmigrant status--$75 plus $10 per co-applicant.
* * * * *
Form I-600. For filing petition to classify orphan as an immediate
relative for issuance of immigrant visa under section 204(a) of the
Act. (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.)--$155.
Form I-600A. For filing 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.)--$155.
Form I-601. For filing application for waiver of ground of
excludability under section 212 (h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those subsections)--$95.
Form I-612. For filing application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$95.
* * * * *
Form I-751. For filing an application to remove the conditions on
residence which is based on marriage--$80.
* * * * *
Form I-765. For filing an application for employment authorization
pursuant to 8 CFR 274a.13--$70.
* * * * *
Form I-817. For filing application for voluntary departure under
the Family Unity Program--$80. The maximum amount payable by the
members of a family filing their applications concurrently shall be
$225.
* * * * *
Form N-300. For filing application for declaration of intention--
$75.
* * * * *
Form N-400. For filing an application for naturalization--$95. For
filing an application for naturalization under section 405 of the
Immigration Act of 1990, if the applicant will be interviewed in the
Philippines--$120.
* * * * *
Form N-470. For filing application for section 316(b) or 317 of the
Act benefits--$115.
Form N-565. For filing 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 (b) or
(d) 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(c) of the Act--$65.
Form N-600. For filing application for certificate of citizenship
under section 309(c) or section 341 of the Act--$100.
Form N-643. For filing an application for a certificate of
citizenship on behalf of an adopted child--$80.
Form N-644. For filing an application for posthumous citizenship--
$80.
* * * * *
Dated: December 23, 1993.
Janet Reno,
Attorney General.
Exhibit 1
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Derivation of Management and Administration (M&A) Distribution Key
[Fiscal Year 1994]
----------------------------------------------------------------------------------------------------------------
Full-Time Equivalent Work Years (FTE)
--------------------------------------------------------------------------
Description Examinations Fee
Account All Other INS Accounts Total
----------------------------------------------------------------------------------------------------------------
Non-M&A Work Years................... 3,951 13,291 17,242
Percent.............................. 22.9 77.1 100
----------------------------------------------------------------------------------------------------------------
Exhibit 2
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Examinations Fee Account--Projected Positions, Work Years and Dollars
[Fiscal Year 1994]
----------------------------------------------------------------------------------------------------------------
Program Positions Work years Dollars ($000)
----------------------------------------------------------------------------------------------------------------
Inspections............................................ 241 240 15,847
Border Patrol.......................................... ................. ................. .................
Investigations......................................... 100 100 7,533
Detention & Deportation................................ ................. ................. .................
Adjudications & Naturalization......................... 2,258 2,129 145,859
Refugees & Overseas.................................... 412 472 40,761
Training............................................... 22 20 3,153
Data & Communications.................................. 72 68 34,863
Information & Records Management....................... 736 801 51,359
Intelligence........................................... 8 8 549
Legal Proceedings...................................... 116 112 9,432
Construction & Engineering............................. 1 1 178
Management & Administration............................ 213 204 21,939
--------------------------------------------------------
Total.............................................. 4,179 4,155 331,473
----------------------------------------------------------------------------------------------------------------
Exhibit 3
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Projected Transfers; Salaries and Expenses Appropriation to Examinations Fee Account--Positions, Work Years and
Dollars
[Fiscal Year 1994]
----------------------------------------------------------------------------------------------------------------
Program Positions Work years Dollars ($000)
----------------------------------------------------------------------------------------------------------------
Inspections............................................ ................. ................. .................
Border Patrol.......................................... ................. ................. .................
Investigations......................................... ................. ................. .................
Detention & Deportation................................ ................. ................. .................
Adjudications & Naturalization......................... ................. ................. .................
Refugees & Overseas.................................... ................. ................. .................
Training............................................... ................. ................. .................
Data & Communications.................................. ................. ................. .................
Information & Records Management....................... ................. ................. .................
Intelligence........................................... ................. ................. .................
Legal Proceedings...................................... 78 78 6,304
Construction & Engineering............................. ................. ................. .................
Management & Administration\1\......................... 126 117 12,311
--------------------------------------------------------
Total.............................................. 204 195 $18,615
----------------------------------------------------------------------------------------------------------------
\1\To distribute costs properly, INS would transfer 143 positions, 133 work years and associated costs. However,
in FY 1994 INS will propose to transfer only 126 positions, 117 work years and associated costs, so that the
difference can be used to support additional work years in the adjudications and naturalization program during
the period of transition when work is shifted to service centers.
Exhibit 4
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Proposed Examinations Fee Revenue Adjustment
[Fiscal Year 1994]
------------------------------------------------------------------------
Line Description Dollars (000)
------------------------------------------------------------------------
Funds Availability
1....... Carry-forward from FY 1993.................... $18,677
2....... Anticipated FY 1994 Revenue at Current Fee 314,741
Levels.
---------------
3....... Projected FY 1994 Funds Availability (Line 1 + 333,418
Line 2).
Costs
4....... Funding Requirements (1994 Costs)............. 331,473
5....... Planned Carry-forward to FY 1995 (1 months' 27,623
cost).
6....... Less: Effect of Technical Adjustments......... 2,180
---------------
7....... Total Revenue Requirement (Line 4 + Line 5 - 356,916
Line 6).
Impact on Fee Schedule
8....... Additional Revenue Required (Line 3 - Line 7). 23,498
9....... Fee Revenue Adjustment Required (Line 8 7.5%
Line 2).
------------------------------------------------------------------------
Exhibit 5
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Examinations Fee Account
[Current Fees and Proposed Fees]
------------------------------------------------------------------------
Proposed
Form No. Form name/description Current fee fee
------------------------------------------------------------------------
I-17...... Petition for Approval of School $130 140
for Attendance by Nonimmigrant
Students.
I-90...... Application to Replace Alien 70 75
Registration Card.
I-130..... Petition for Alien Relative....... 75 80
I-131..... Application for Travel Document... 65 70
I-140..... Immigrant Petition for Alien 70 75
Worker.
I-192..... Application for Advance Permission 85 90
to Enter as Nonimmigrant.
I-193..... Application for Waiver of Passpart 90 95
and/or Visa.
I-212..... Application for Permission to 90 95
Reapply for Admission into the
U.S. After Deportation or Removal.
I-360..... Petition for Amerasian, Widow(er), 75 80
or Special Immigrant (except for
a petition seeking classification
as an Amerasian in which case the
fee is waived).
I-485..... Application to Register Permanent
Residence or Adjust Status.
If 14 years of age or older....... 120 130
If under 14 years of age.......... 95 100
I-539..... Application to extend/Change 70 75
Nonimmigrant Status.
I-601..... Application for Waiver of Grounds 90 95
of Excludability.
I-612..... Application for Waiver of the 90 95
Foreign Residence Requirement.
I-751..... Petition to Remove the Condition 75 80
on Residence.
I-817..... Application for Voluntary 75 80
Departure Under Family Unity
Program.
N-300..... Application to File Declaration of 70 75
Intention.
N-400..... Application for Naturalization.... 90 95
------------------------------------------------------------------------
Exhibit 6
Note: The following exhibit will not appear in the Code of
Federal Regulations.
EXAMINATIONS FEE ACCOUNT
Current Fee and Proposed Fee
Petition for a Nonimmigrant Worker (I-129)
Current Fee Structure:
The fee for a petition is a base fee of $70 plus either:
--$10 per worker if requesting consulate or port-of-entry
notification for visa issuance or admission;
--$80 per worker if requesting a change of status; or
--$50 per worker if requesting an extension of stay.
Proposed Fee Structure:
If filing for one worker, $120 per petition plus $10 for each
dependent.
If filing for more than one worker, $100 per petition plus $20 for
each worker.
Exhibit 7
Note: The following exhibit will not appear in the Code of
Federal Regulations.
Examinations Fee Account
[Current Fee and Proposed Fee, with Technical Adjustments]
----------------------------------------------------------------------------------------------------------------
Form No.
Form name/description Current fee Adjusted fee Proposed fee
----------------------------------------------------------------------------------------------------------------
I-102 Application for Replacement/Initial Nonimmigrant $50 $60 $65
Arrival Departure Document.
I-129F Petition for Alien Fiance(e).......................... 75 70 75
I-191 Application for Advance Permission to Return to 90 85 90
Unrelinquished Domicile.
I-526 Immigrant Petition by Alien Entrepreneur.............. 140 145 155
I-600 Petition to Classify Orphan as an Immediate Relative.. 140 145 155
I-600A Application for Advance Processing of Orphan Petition. 140 145 155
I-765 Application for Employment Authorization.............. 60 65 70
N-470 Application to Preserve Residence for Naturalization 90 105 115
Purposes.
N-565 Application for Replacement Naturalization/Citizenship 50 60 65
Document.
N-600 Application for Certification of Citizenship.......... 90 95 100
N-643 Application for Certificate of Citizenship in Behalf 85 75 80
of an Adopted Child.
N-644 Application for Posthumous Citizenship................ 60 75 80
----------------------------------------------------------------------------------------------------------------
[FR Doc. 94-298 Filed 1-7-94; 8:45 am]
BILLING CODE 4410-01-M
