06-4754. Changes to the Procedures for Notifying the Public of Premium Processing Service Designations and Availability

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Interim rule with request for comments.

SUMMARY:

This interim rule amends Department of Homeland Security regulations to change the process whereby U.S. Citizenship and Immigration Services will notify the public of the dates and conditions for Premium Processing Service of designated employment-based petitions and applications. This interim rule also clarifies that notices announcing the designation of petitions and applications for Premium Processing Service will identify the individual classifications within each designated petition or application that will be eligible for premium processing.

DATES:

Effective date: This interim rule is effective May 23, 2006.

Comment date: Written comments must be submitted on or before July 24, 2006.

ADDRESSES:

You may submit comments, identified by DHS Docket No. USCIS 2005-0038, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: You may submit comments directly to USCIS by e-mail at [e-mail]. Include DHS Docket No. USCIS-2005-0038 in the subject line of the message.
• Mail: The Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2005-0038 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number is [phone].

FOR FURTHER INFORMATION CONTACT:

Kristina Carty-Pratt, Adjudications Officer, Office of Program and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Washington, DC 20536. Contact Telephone Number [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. Comments that will provide the most assistance to U.S. Citizenship and Immigration Services (USCIS) in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions: All submissions received must include the agency name and DHS docket No. USCIS-2005-0038 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. See ADDRESSES above for information on how to submit comments.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the office of the Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

II. Background

The District of Columbia Appropriations Act of 2001 added section 286(u) to the Immigration and Nationality Act (INA), 8 U.S.C. 1356(u), authorizing the collection of a $1,000 “premium fee,” in addition to the regular filing fee, from persons seeking expedited processing of eligible employment-based petitions and applications. See District of Columbia Appropriations Act of 2001, Public Law 106-553, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000). Based upon this statutory authority, the former Immigration and Naturalization Service issued an interim rule establishing its Premium Processing Service on June 1, 2001. See 66 FR 29682.

Under the Premium Processing Service, in exchange for the $1,000 premium processing fee, USCIS guarantees that designated petitions and applications will be processed within 15 calendar days. 8 CFR 103.2(f)(1). USCIS regulations state that USCIS will designate the petitions and applications eligible for the Premium Processing Service by notices published in the Federal Register. 8 CFR 103.2(f)(2). This interim rule amends USCIS regulations to change the information required to be included in the designation notices and to state USCIS' intention to inform the public by announcements on its Web site of the dates of availability, or termination, of Premium Processing Service for individual petitions, applications or classifications of aliens within such documents.

III. Notification of Premium Processing Service Designations and Availability

A. Designating Classifications Within Designated Petitions and Applications by Federal Register Notice

The preamble to the June 2001 interim rule establishing the Premium Processing Service filing requirements states that USCIS will specify the forms and visa classifications that will be eligible for premium processing, as well as the dates on which the availability of Premium Processing Service will begin and end.^[1] 66 FR at 29683. Today's interim rule codifies USCIS' practice of specifying in the designation notice which visa classifications within designated petitions and applications are eligible for Premium Processing. See Revised 8 CFR 103.2(f)(2). USCIS is adding this requirement to the regulations to ensure that the public consistently receives complete information regarding each designation.

Further, under this interim rule, USCIS will specify in the designation notice the “classifications” within the designated petitions and applications that are eligible for Premium Processing Service, rather than only “visa classifications.” This change is necessary to take into account the fact that not all petitions and applications are filed on the basis of a visa classification. For example, the Form I-765 “Application for Employment Authorization” may be filed by aliens who have a pending application to adjust status to that of a lawful permanent resident. This classification does not correspond to a particular visa classification.

USCIS regulations also currently state that USCIS will announce a decision to terminate Premium Processing Service by notice published in the Federal Register. This interim rule amends the regulations to state that USCIS also will specify individual classifications within petitions and applications for which USCIS has terminated eligibility for Premium Processing Service. See Revised 8 CFR 103.2(f)(2).

B. Web Site Notification of Dates and Conditions of Premium Processing Service Availability

Currently, USCIS announces the date that Premium Processing Service will become available for designated forms in the designation notices published in the Federal Register. See 66 FR at 29683. This rule states USCIS' intention to announce the date of availability of Premium Processing Service for specific forms, or classifications within the forms, by USCIS' public Web site (http://www.uscis.gov) rather than including that information in the designation notice published in the Federal Register. Revised 8 CFR 103.2(f)(2). This process allows for more flexibility for USCIS in beginning or ending the availability of Premium Processing Service and maximizes public access to this information.

The public frequently turns to the USCIS Web site for information. The USCIS Web site receives millions of hits per month. The public uses the USCIS Web site for general information on immigration benefits rules and processes, statutes and regulations, downloading immigration forms, specific case status information, and processing times at the various service centers and district offices. Some members of the public sign up for e-mail alerts that provide the latest information posted on the USCIS Web site regarding particular applications, petitions, or visa classifications. Because of the wide use of the Web site by the public, USCIS believes that posting information on the dates of availability for, or termination of, Premium Processing Service for specific petitions and applications on USCIS' Web site would be a more timely and efficient method of disseminating such information to the public.

Accordingly, this rule amends 8 CFR 103.2(f)(2) to state USCIS' intention to post on its Web site the beginning and ending dates of availability for Premium Processing Service for the petitions and applications, and classifications within such petitions and applications, that USCIS previously designated by notice published in the Federal Register.

This rule also announces that USCIS will post any conditions that it determines are necessary to impose on the availability of Premium Processing Service. This change will accord USCIS the flexibility to adapt to contingencies affecting its ability to provide Premium Processing Service. For example, USCIS may need to suspend the availability of Premium Processing Service for certain applications or petitions, or for certain classifications within designated applications or petitions, in the event that USCIS receives a flood of requests for the service and determines that it will not be able to handle new requests until the pending requests are processed. USCIS also may need to suspend the availability of Premium Processing Service in emergent situations that require USCIS to redirect its resources, such as when a new law requires USCIS to extend immigration benefits to large classes of individuals within a short timeframe. This rule affords USCIS the flexibility to adapt quickly when these various contingencies arise while providing the public with adequate notice of any impact on Premium Processing Service availability.

As a result of this amendment to 8 CFR 103.2(f)(2), a designation for Premium Processing Service eligibility in a Federal Register notice will no longer mean that the public can immediately request Premium Processing Service for a particular application or petition. Rather, the public will need to refer to the USCIS public Web site to determine when USCIS will begin to accept requests for Premium Processing Service for the new designation. By this change, applicants and petitioners relying on information that USCIS posts on its Web site concerning the availability of Premium Processing Service will have confidence that the information is timely and accurate, and that their resulting request for Premium Processing Service will not be rejected based on timeliness.

C. Technical Change

This rule makes one technical change to 8 CFR 103.2(f)(2). It replaces the reference to “Service” with “USCIS.” “Service” refers to the former Immigration and Naturalization Service. The administration of Premium Processing Service was transferred from the former Immigration and Naturalization Service to USCIS on March 1, 2003. See Homeland Security Act of 2002, Public Law 107-296, sections 451(b) & 471, 116 Stat. 2135, 2196, 2205 (codified as amended at 6 U.S.C. 271(b) & 291(a)). This amendment to 8 CFR 103.2(f)(2) is necessary to reflect the transfer of this function.

IV. Regulatory Requirements

A. Administrative Procedure Act

USCIS has determined that the public notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. 553(b), do not apply to this rule because the rule is procedural in nature and does not alter the substantive rights of the affected parties. Therefore, this rule satisfies the exemption from notice and comment rulemaking in 5 U.S.C. 553(b)(A). USCIS nevertheless invites comments on this rule and will consider all timely comments in the preparation of a final rule.

Premium Processing Service is an established USCIS program. This rule is limited to modifying how USCIS will notify the public of Premium Processing Service availability and requiring more specificity in notifications. It does not modify any of the eligibility requirements for Premium Processing Service, nor does it modify the standards under which USCIS will grant a request from the public for Premium Processing Service.

USCIS expects that this rule will further the public's interest in receiving timely processed employment-based immigration benefits. The rule requires that USCIS provides more detailed information to the public regarding the availability of Premium Processing Service to new petitions and applications. Also, by permitting USCIS to post availability information on its popular Web site, the public will be informed of changes to Premium Processing Service as those changes occur. This will allow the public to seek the benefits of the service more quickly, including U.S. employers filling vacancies, individuals finding needed jobs, and dependent family members rejoining their loved ones.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required “to publish a general notice of proposed rulemaking for any proposed rule.” Because this rule is being issued as an interim rule, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA.

C. Unfunded Mandates Reform Act of 1995

This interim rule will not result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

This interim rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in (i) an annual effect on the economy of $100 million or more; (ii) a major increase in costs or prices; or (iii) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

E. Executive Order 12866

The Office of Management and Budget has determined that this rule is not a significant regulatory action under Executive Order 12866. Accordingly, this regulation has not been submitted to the Office of Management and Budget (OMB) for review.

This rule does not place new costs or burdens on the public. The only modification this rule is making to Premium Processing Service is the location and specificity of information that USCIS will disseminate to the public concerning the availability of Premium Processing Service. This rule permits USCIS to use its Web site to notify the public of the availability of Premium Processing Service. The USCIS Web site is more readily accessible to the public than the current form of notification, which is by notice published in the Federal Register. Recognizing that not all members of the public utilize the Internet, USCIS will make available by telephone the same information contained on its Web site concerning Premium Processing Service availability. To obtain Premium Processing Service availability information, the public will be able to call the National Customer Service Center at 1-800-375-5283.

The changes made by this rule will benefit the public with overall improved customer service by allowing USCIS to disseminate to the public information related to Premium Processing Service quickly and efficiently. The changes also are expected to benefit USCIS by increasing its flexibility in the management of the service to accommodate contingencies as they arise.

F. Executive Order 13132

This rule 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, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

G. Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This interim rule does not impose any additional information collection burden or affect information currently collected by USCIS.

List of Subjects in 8 CFR Part 103

• Administrative practice and procedure
• Authority delegations (Government agencies)
• 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 amended as follows:

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.

2. Section 103.2(f)(2) is revised to read as follows:

§ 103.2

Applications, petitions, and other documents.

* * * * *

(f) * * *

(2) Applications and petitions eligible for Premium Processing Service. USCIS will designate and terminate petitions and applications and classifications within such petitions and applications as eligible for Premium Processing Service by publication of notices in the Federal Register. USCIS will announce by its Web site at http://www.uscis.gov the dates upon which the availability of Premium Processing Service begins and ends for a designated petition or application and any designated classifications within a designated petition or application, and applicable conditions of availability.

* * * * *

Dated: May 4, 2006.

Michael Chertoff,

Secretary.

Footnotes

1.  “Form type” is a phrase USCIS uses to describe the form number assigned to the petition or application. For example, the form type for the “Petition for Nonimmigrant Worker” is Form I-129. “Visa classifications” is a phrase that USCIS uses to refer to categories of aliens whom Congress has identified by statute as permitted to seek immigrant or nonimmigrant status in the United States. See INA sec. 203, 8 U.S.C. 1153 (immigrants); INA sec. 101(a)(15), 8 U.S.C. 1101(a)(15) (nonimmigrants). For example, an alien seeking to come to the United States temporarily to perform services in a specialty occupation would fall within the “H-1B” nonimmigrant visa classification, authorized by section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b).