2024-01427: U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements

I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1

Nonimmigrant Workers (Pub. L. 114-113 Fees) IV. Response to Public Comments on the Proposed Rule A. Summary of Comments on the Proposed Rule B. General Feedback on the Proposed Rule C. Basis for the Fee Review D. FY 2022/2023 IEFA Fee Review E. Fee Waivers F. Fee Exemptions G. Fee Changes by Benefit Category H. Statutory and Regulatory Requirements I. Out of Scope V. Statutory and Regulatory Requirements A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review) and Executive Order 14094 (Modernizing Regulatory Review)

C. Small Business Regulatory Enforcement Fairness Act of 1996

(Congressional Review Act) D. Unfunded Mandates Reform Act E. Executive Order 12132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination With Tribal Governments) H. Family Assessment I. National Environmental Policy Act (NEPA) J. Paperwork Reduction Act List of Acronyms and Abbreviations AAO Administrative Appeals Office ABC Activity-Based Costing ACWIA American Competitiveness and Workforce Improvement Act APA Administrative Procedure Act APD Advance Parole Documents ASVVP Administrative Site Visit and Verification Program BFD Bona Fide Determination CAA Cuban Adjustment Act of 1966 CBP U.S. Customs and Border Protection CFO Chief Financial Officer CFR Code of Federal Regulations CIS The Office of the Citizenship and Immigration Services COVID Coronavirus Disease CPI-U Consumer Price Index for All Urban Consumers DACA Deferred Action for Childhood Arrivals DHS Department of Homeland Security DOD Department of Defense DOJ Department of Justice DOL Department of Labor DOS Department of State EAD Employment Authorization Document EB-5 Employment-Based Immigrant Visa, Fifth Preference EIN Employer Identification Number E.O. Executive Order EOIR Executive Office for Immigration Review FDNS Fraud Detection and National Security Directorate FOIA Freedom of Information Act FPG Federal Poverty Guidelines FR Federal Register FRFA Final Regulatory Flexibility Analysis FTE Full-Time Equivalent FY Fiscal Year GAO Government Accountability Office HHS Department of Health and Human Services HRIFA Haitian Refugee Immigration Fairness Act ICE U.S. Immigration and Customs Enforcement IEFA Immigration Examinations Fee Account IFR Interim final rule INA Immigration and Nationality Act of 1952 INS Immigration and Naturalization Service IPO Immigrant Investor Program Office IRS Internal Revenue Service ISAF International Security Assistance Forces IT information technology IOAA Independent Offices Appropriations Act LPR Lawful Permanent Resident NACARA Nicaraguan Adjustment and Central American Relief Act NAICS North American Industry Classification System NARA National Archives and Records Administration [[Page 6195]] NEPA National Environmental Policy Act NOID Notice of Intent to Deny NPRM Notice of Proposed Rulemaking NRC National Records Centers OAW Operation Allies Welcome OIG DHS Office of the Inspector General OIRA Office of Information and Regulatory Affairs OMB Office of Management and Budget OPT Optional Practical Training PRA Paperwork Reduction Act of 1995 PRC Permanent Resident Card or Green Card \1\ --------------------------------------------------------------------------- \1\ DHS uses the informal term ``Green Card'' interchangeably with or to refer to a Permanent Resident Card, USCIS Form I-551. See, e.g., Green Card, at https://www.uscis.gov/green-card (last viewed Dec. 5, 2023). --------------------------------------------------------------------------- Pub. L. Public Law RFA Regulatory Flexibility Act RFE Requests for Evidence RIA Regulatory Impact Analysis SBA Small Business Administration SEA Small Entity Analysis Secretary Secretary of Homeland Security SIJ Special Immigrant Juvenile SNAP Supplemental Nutrition Assistance Program SSI Supplemental Security Income SSN Social Security number Stat. U.S. Statutes at Large STEM Science, Technology, Engineering, and Mathematics TPS Temporary Protected Status TVPRA William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 UMRA Unfunded Mandates Reform Act of 1995 U.S.C. United States Code USCIS U.S. Citizenship and Immigration Services USDA U.S. Department of Agriculture VAWA Violence Against Women Act VTVPA Victims of Trafficking and Violence Protection Act of 2000

A. Purpose of the Regulatory Action

DHS is adjusting the fee schedule for U.S. Citizenship and Immigration Services (USCIS) immigration benefit requests.\2\ As stated in the proposed rule, USCIS is primarily funded by fees charged to applicants and petitioners for immigration and naturalization benefit requests. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants or petitioners. The focus of this fee review is the fees that DHS has established and is authorized by INA section 286(m), 8 U.S.C 1356(m), to establish or change, collect, and deposit into the IEFA, which comprised approximately 96 percent of USCIS' total FY 2021 enacted spending authority; this fee review does not focus on fees that USCIS is required to collect but cannot change. Most of these fees have not changed since 2016 despite increased costs of federal salaries and inflation costs for other goods and services. This rule also revises the genealogy program fees established under INA section 286(t), 8 U.S.C. 1356(t), and those funds are also deposited into the IEFA. Premium processing funds established under INA section 286(u), 8 U.S.C. 1356(u) are also IEFA fees, but premium processing fees do not change in this rule. --------------------------------------------------------------------------- \2\ DHS uses the term ``benefit request'' throughout this rule as defined in 8 CFR 1.2 to mean any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit. The term benefit request applies regardless of if the title of the request uses the term petition (e.g., Petition for Nonimmigrant Worker), application (e.g., Application for Naturalization) or request (e.g., Request for Fee Waiver). Accordingly, ``requestor'' is a synonym for applicant or petitioner. Immigration benefit request or benefit request is also used even if USCIS approval of the request does not result in an immigration benefit, status, visa, or classification, such as requests related to inadmissibility waivers and the USCIS genealogy program. Using the term benefit request reduces the ambiguity and confusion resulting from the repetitive use of application, petition, applicant, and petitioner, and improves readability without substantive legal effect. 76 FR 53764, 53767 (Aug. 11, 2011). --------------------------------------------------------------------------- In accordance with the requirements and principles of the Chief Financial Officers Act of 1990 (CFO Act), codified at 31 U.S.C. 901-03, and Office of Management and Budget (OMB) Circular A-25, USCIS conducted a comprehensive fee review for the Fiscal Year (FY) 2022/2023 biennial period, refined its cost accounting process, and determined that current fees do not recover the full costs of services provided. DHS determined that adjusting USCIS' fee schedule is necessary to fully recover costs and maintain adequate service. This final rule also increases the populations that are exempt from certain fees and clarifies filing requirements for nonimmigrant workers, requests for premium processing, and other administrative requirements.

B. Legal Authority

DHS's authority is in several statutory provisions. Section 102 of the Homeland Security Act of 2002,\3\ 6 U.S.C. 112, and section 103 of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. 1103, charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States. Specific authority for establishing multiple USCIS fees is found in INA sec. 286, 8 U.S.C. 1356, and more specifically section 286(m), 1356(m) (authorizing DHS to charge fees for adjudication and naturalization services at a level to ``ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants and other immigrants'').\4\ --------------------------------------------------------------------------- \3\ Public Law 107-296, 116 Stat. 2135, 2142-44 (Nov. 25, 2002). \4\ The longstanding interpretation of DHS is that the ``including'' clause in INA sec. 286(m) does not constrain DHS's fee authority under the statute. The ``including'' clause offers only a non-exhaustive list of some of the costs that DHS may consider part of the full costs of providing adjudication and naturalization services. See INA sec. 286(m), 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4, 2016). ---------------------------------------------------------------------------

2. Changes in the Asylum Program Fee

DHS proposed a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. 88 FR 451. In the final rule, DHS exempts the Asylum Program Fee for nonprofit petitioners and reduces it by half for small employers. See 8 CFR 106.2(c)(13). The fee will be $0 for nonprofits; $300 for small employers (defined as firms or individuals having 25 or fewer FTE [[Page 6196]] employees); and $600 for all other filers of Forms I-129 and I-140. See 8 CFR 106.1(f) and 106.2(c)(13).

3. Changes to Employment-Based Immigrant Visa, Fifth Preference (EB-5)

Fees DHS has updated the USCIS volume forecasts for the EB-5 workload based on more recent and reliable information than what was available while drafting the proposed rule. Increasing the fee-paying receipt forecasts for these workloads conversely increased the estimated revenue generated by EB-5 fees. DHS also revised the USCIS budget to reflect these changes.

4. Changes to H-1B Registration Fees

DHS also revises the USCIS volume forecasts for H-1B registration workload, to 424,400, based on more recent information than was available while drafting the proposed rule, such as the total registrations for the FY 2023 cap year. The proposed rule forecasted 273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). This change increases the estimated revenue generated by the H-1B registration fees in the final rule.

5. Online Filing Fees

The proposed rule provided lower fees for some online requests based on estimated costs for online and paper filing. See 88 FR 402, 489-491. The fee differences between paper and online filing ranged from $10 to $110. Id. This final rule provides a $50 discount for forms filed online with USCIS. See 8 CFR 106.1(g). The discount is not applied in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee. See, e.g., 8 CFR 106.2(a)(50)(iv).

6. Adjust Fees for Forms Filed by Individuals by Inflation

The proposed rule included a wide range of proposed fees. In this final rule, (a) DHS holds several fees to the rate of inflation since the previous fee increase in 2016, and (b) if the proposed fee was less than the current fee adjusted for inflation, then DHS sets the fee in this rule at the level proposed. Except for certain employment-based benefit request fees, if proposed fees were less than the rate of inflation, then DHS finalizes the proposed fee or a lower fee. A comparison of current, proposed, and final fees can be found in Table 1.

7. Fee Exemptions and Fee Waivers

The proposed rule included new fee exemptions and proposed to codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023). This final rule expands fee exemptions for humanitarian filings. See section II.C.; 8 CFR 106.3(b). The final rule also codifies the 2011 Fee Waiver Policy \5\ criteria that USCIS may grant a request for fee waiver if the requestor demonstrates an inability to pay based on receipt of a means-tested benefit, household income at or below 150 percent of the Federal Poverty Guidelines (FPG), or extreme financial hardship. See 8 CFR 106.3(a)(1). --------------------------------------------------------------------------- \5\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver Guidelines as Established by the final rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf. --------------------------------------------------------------------------- DHS proposed 8 CFR 106.3(a)(2) to require that a request for a fee waiver be submitted on the form prescribed by USCIS in accordance with the instructions on the form. In the final rule, USCIS will maintain the status quo of accepting either Form I-912, Request for Fee Waiver, or a written request, and revert to the current effective language at 8 CFR 103.7(c)(2) (Oct. 1, 2020). DHS also decided to modify the instructions for Form I-912 to accept evidence of receipt of a means-tested benefit by a household child as evidence of the parent's inability to pay because the child's eligibility for these means-tested benefits is dependent on household income.

8. Procedural Changes To Address Effects of Fee Exemptions and

Discounts DHS is making five procedural changes in the final rule to address issues that it has experienced with fee-exempt and low-fee filings. First, the final rule provides that a duplicate filing that is materially identical to a pending immigration benefit request will be rejected. See 8 CFR 103.2(a)(7)(iv). Second, in the final rule DHS provides that if USCIS accepts a benefit request and determines later that the request was not accompanied by the correct fee, USCIS may deny the request. See 8 CFR 103.2(a)(7)(ii)(D)(1). Third, if the benefit request was approved before USCIS determines the correct fee was not paid, the approval may be revoked upon notice. Id. Fourth, the first sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the benefit request was approved, the approval may be revoked upon notice.'' DHS is revising the first sentence to read, ``If the benefit request was approved, the approval may be revoked upon notice, rescinded, or canceled subject to statutory and regulatory requirements applicable to the immigration benefit request.'' Reference to applicable statutes and regulations is also added to the last sentence of section 106.1(c)(2). Finally, this final rule provides that USCIS may forward an appeal for which the fee is waived or exempt for adjudication without requiring a review by the official who made the unfavorable decision. 8 CFR 103.3(a)(2)(ii).

9. Adjustment of Status (Form I-485) and Family-Based Fees

In this final rule, DHS provides that Form I-485, Application to Register Permanent Residence or Adjust Status, applicants will pay half of the regular Form I-765, Application for Employment Authorization, fee when it is filed with a Form I-485 for which the fee is paid if the adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had proposed requiring the full fee for Form I-765, and Form I-131, Application for Travel Document, when filed with Form I-485. See 88 FR 402, 491. DHS is setting the filing fee for a Form I-765 filed concurrently with Form I-485 after the effective date at $260. See 8 CFR 106.2(a)(44)(i). The proposed rule also would have ($1,540). See 88 FR 402, 494 (Jan. 4, 2023). In the final rule, DHS provides that, when filing with parents, children will pay a lesser fee of $950 for Form I-485. See 8 CFR 106.2(a)(20)(ii).

10. Adoption Forms

In the final rule, DHS is providing additional fee exemptions for adoptive families. See 8 CFR 106.2(a)(32) and (48). Specifically, DHS will also provide fee exemptions for second extensions, second change of country requests, and duplicate approval notices for both the orphan and the Hague process. These would all be requested using Supplement 3 for either the orphan (Form I-600/I-600A) or Hague (Form I-800A) process. This is in addition to the exemptions that DHS already provides for the Supplement 3 for first extensions and first change of country requests. The final rule also provides that Forms N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate under Section 322, are fee exempt for certain adoptees. See 8 CFR 106.2(b)(7)(ii) and (8).

11. Naturalization and Citizenship Fees

This final rule expands eligibility for paying half of the regular fee for Form N-400, Application for Naturalization. An applicant with household income at or below 400 percent of Federal Poverty Guidelines (FPG) may pay half price for [[Page 6197]] their Application for Naturalization. See 8 CFR 106.2(b)(3)(ii).

12. Additional Changes

In the final rule: DHS deletes proposed 8 CFR 106.3(a)(5), ``Fees under the Freedom of Information Act (FOIA),'' because it is unnecessary. DHS FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under FOIA, 5 U.S.C. 552(a)(4)(A)(iii). Removes the fee exemption for Form I-601, Application for Waiver of Grounds of Inadmissibility, for applicants seeking cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), since they cannot use a waiver of inadmissibility to establish eligibility for this type of relief from removal. Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012); cf. proposed 8 CFR 106.3(b)(8)(i). Provides a 30-day advance public notification requirement before a payment method will be changed. 8 CFR 106.1(b). Provides that an inflation only rule must adjust all USCIS fees that DHS has the authority to adjust under the INA (those not fixed by statute).

D. Summary of Final Fees

The fees established in this rule are summarized in the Final Fee(s) column in Table 1. Table 1 compares the current fees to the fees established in this rule. In addition, the new fees and exemptions are incorporated into the Form G-1055, Fee Schedule, as part of the docket for this rulemaking. The Current Fee(s) column in Table 1 represents the current fees in effect rather than the enjoined fees from the 2020 fee rule.\6\ Throughout this final rule, the phrase ``current fees'' refers to the fees in effect and not the enjoined fees. --------------------------------------------------------------------------- \6\ USCIS provides filing fee information on the All Forms page at https://www.uscis.gov/forms/all-forms. You can use the Fee Calculator to determine the exact filing and biometric services fees for any form processed at a USCIS Lockbox facility. See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Fee Calculator, https://www.uscis.gov/feecalculator. For a complete list of all USCIS fees, see Form G-1055, Fee Schedule, available from https://www.uscis.gov/g-1055. --------------------------------------------------------------------------- In some cases, the current or final fees may be the sum of several fees. For example, several immigration benefit requests require an additional biometric services fee under the current fee structure. The table includes rows with and without the additional biometric services fee added to the Current Fee(s) column. In this final rule, DHS would eliminate the additional biometric services fee in most cases by including the costs in the underlying immigration benefit request fee. As such, the Final Fees(s) column does not include an additional biometric services fee in most cases. Some other benefit requests are listed several times because in some cases DHS proposes distinct fees based on filing methods, online or paper. DHS will require fees for Form I-131, Application for Travel Document, and Form I-765, Application for Employment Authorization, when filed with Form I-485, Application to Register Permanent Residence or Adjust Status, in most cases. As such, Table 1 includes rows that compare the current fee for Form I-485 to various combinations of the final fees for Forms I-485, I-131, and I-765. The table excludes statutory fees that DHS cannot adjust or can only adjust for inflation. Instead, the table focuses on the IEFA non- premium fees that DHS is changing in this rule. BILLING CODE 9111-97-P [[Page 6198]] [GRAPHIC] [TIFF OMITTED] TR31JA24.000 [[Page 6199]] [GRAPHIC] [TIFF OMITTED] TR31JA24.001 [[Page 6200]] [GRAPHIC] [TIFF OMITTED] TR31JA24.002 [[Page 6201]] [GRAPHIC] [TIFF OMITTED] TR31JA24.003 [[Page 6202]] [GRAPHIC] [TIFF OMITTED] TR31JA24.004 [[Page 6203]] [GRAPHIC] [TIFF OMITTED] TR31JA24.005 [[Page 6204]] [GRAPHIC] [TIFF OMITTED] TR31JA24.006 BILLING CODE 9111-97-C [[Page 6205]]

E. Summary of Costs and Benefits

The fee adjustments, as well as changes to the forms and fee structures used by USCIS, will result in net costs, benefits, and transfer payments. For the 10-year period of analysis of the rule (FY 2024 through FY 2033), DHS estimates the annualized net costs to the public will be $157,005,952 discounted at 3 and 7 percent. Estimated total net costs over 10 years will be $1,339,292,617 discounted at 3- percent and $1,102,744,106 discounted at 7-percent. The changes in the final rule will also provide several benefits to DHS and applicants/petitioners seeking immigration benefits. For the government, the primary benefits include reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations. The primary benefits to the applicants/petitioners include reduced fee processing errors, increased efficiency in the adjudicative process, the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens. Fee increases will result in annualized transfer payments from applicants/petitioners to USCIS of approximately $887,571,832 discounted at 3 and 7 percent. The total 10-year transfer payments from applicants/petitioners to USCIS will be $7,571,167,759 at a 3-percent discount rate and $6,233,933,135 at a 7-percent discount rate. Reduced fees and expanded fee exemptions will result in annualized transfer payments from USCIS to applicants/petitioners of approximately $241,346,879 discounted at both 3-percent and 7-percent. The total 10- year transfer payments from USCIS to applicants/petitioners will be $2,058,737,832 at a 3-percent discount rate and $1,695,119,484 at a 7- percent discount rate. The annualized transfer payments from the Department of Defense (DOD) to USCIS for Form N-400 filed by military members will be approximately $197,260 at both 3- and 7-percent discount rates. The total 10-year transfer payments from DOD to USCIS will be $1,682,668 at a 3-percent discount rate and $1,385,472 at a 7- percent discount rate. Adding annualized transfer payments from fee paying applicants/ petitioners to USCIS ($887,571,832) and transfer payments from DoD to USCIS ($197,260), then subtracting transfer payments from USCIS to applicants/petitioners ($241,346,879) yields estimated net transfer payments to USCIS of $646,422,213 at both 3 and 7-percent discount rates, an approximation of additional annual revenue to USCIS from this rule.

F. Effect of the COVID-19 Pandemic on the USCIS Fee Review and

Rulemaking DHS acknowledges the broad effects of the Coronavirus Disease (COVID-19) international pandemic on the United States broadly and the populations affected by this rule. Multiple commenters on the proposed rule wrote that increasing USCIS fees at this time would exacerbate the negative economic impacts that the United States has experienced from the COVID-19 pandemic. DHS realizes the effects of COVID-19, and USCIS, specifically, is still dealing with the effects of COVID-19 on its workforce and processing backlog. COVID-19 affected the demand for immigration benefits and USCIS services, and, as all employers did, USCIS was required to adjust its workplaces to mitigate the impacts of the disease. DHS has procedures in place to deal with emergency situations as they arise but is no longer providing special accommodations associated with the pandemic.\15\ USCIS considered the effects of COVID-19 on its workload volumes, revenue, or costs, along with all available data, when it conducted its fee review. DHS will also consider these effects in future fee rules. However, no changes were made in the fees and regulations codified in this final rule to address the effects of COVID-19. Further, Census data indicates that impacts of COVID-19 showed a dip in estimated sales, revenue, and value of shipments in 2020 followed by a recovery through the fourth quarter of 2021.\16\ CDC ended the public health emergency due to the COVID-19 pandemic on May 11, 2023.\17\ Although there may be some lingering economic impacts from COVID-19, DHS does not believe these would have an impact on the number of filings by requestors. DHS notes that for certain forms and categories fee waivers may be available for people with financial hardship. See 8 CFR 106.3(a); Table 4B. --------------------------------------------------------------------------- \15\ See USCIS, Immigration Relief in Emergencies or Unforeseen Circumstances available at https://www.uscis.gov/newsroom/immigration-relief-in-emergencies-or-unforeseen-circumstances (last reviewed/updated Aug. 16, 2023); USCIS, USCIS Announces End of COVID-Related Flexibilities available at https://www.uscis.gov/newsroom/alerts/uscis-announces-end-of-covid-related-flexibilities (last reviewed/updated Mar. 23, 2023). \16\ See https://www.regulations.gov/comment/USCIS-2021-0010-0706 and https://www.regulations.gov/comment/USCIS-2021-0010-4141. \17\ See CDC, COVID-19 End of Public Health Emergency, available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html (last updated May 5, 2023). ---------------------------------------------------------------------------

A. History

On January 4, 2023, DHS published a proposed rule in the Federal Register (docket USCIS-2021-0010) at 88 FR 402. DHS published a correction on January 9, 2023, at 88 FR 1172.\18\ On February 24, 2023, DHS extended the comment period an additional 5 days, to March 13, 2023, for a total comment period of 68 days. See 88 FR 11825. USCIS also held a public engagement event on January 11, 2023, and a software demonstration on March 1, 2023, to provide additional avenues for the interested public to hear about and provide feedback on the proposed fee rule.\19\ In this final rule, DHS will refer to the initial proposed rule, correction, and extension collectively as the proposed rule. --------------------------------------------------------------------------- \18\ The document corrected two typographical errors in Table 1 of the proposed rule. \19\ https://www.regulations.gov/comment/USCIS-2021-0010-0706 and https://www.regulations.gov/comment/USCIS-2021-0010-4141. ---------------------------------------------------------------------------

B. Authority and Guidance

DHS publishes this final rule under the Immigration and Nationality Act (``INA''), which establishes the Immigration Examinations Fee Account (``IEFA'') for the receipt of fees it charges. INA section 286(m), 8 U.S.C. 1356(m). The INA allows DHS to set ``fees for providing adjudication and naturalization services . . . 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.'' Id. The INA further provides that ``[s]uch fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.'' Id. DHS also issues this final rule consistent with the Chief Financial Officer Act, 31 U.S.C. 901-03903 (requiring each agency's Chief Financial Officer (CFO) to review, on a biennial basis, the fees imposed by the agency for services it provides, and to recommend changes to the agency's fees). This final rule is also consistent with non-statutory guidance on fees, the budget process, and Federal accounting principles.\20\ DHS uses Office of [[Page 6206]] Management and Budget (OMB) Circular A-25 as general policy guidance for determining user fees for immigration benefit requests, with exceptions as outlined in this section. DHS also follows the annual guidance in OMB Circular A-11 if it requests appropriations to offset a portion of Immigration Examinations Fee Account (IEFA) costs.\21\ --------------------------------------------------------------------------- \20\ See 58 FR 38142 (July 15, 1993) (revising Federal policy guidance regarding fees assessed by Federal agencies for Government services); Federal Accounting Standards Advisory Board Handbook, Version 17 (06/18), ``Statement of Federal Financial Accounting Standards 4: Managerial Cost Accounting Standards and Concepts,'' SFFAS 4, available at http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally describing cost accounting concepts and standards, and defining ``full cost'' to mean the sum of direct and indirect costs that contribute to the output, including the costs of supporting services provided by other segments and entities.); id. at 49-66 (July 31, 1995); OMB Circular A-11, ``Preparation, Submission, and Execution of the Budget,'' section 20.7(d), (g) (June 29, 2018), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf (June 29, 2018) (providing guidance on the FY 2020 budget and instructions on budget execution, offsetting collections, and user fees). \21\ OMB Circulars A-25 and A-11 provide nonbinding internal executive branch direction for the development of fee schedules under IOAA and appropriations requests, respectively. See 5 CFR 1310.1. Although DHS is not required to strictly adhere to these OMB circulars in setting USCIS fees, DHS understands they reflect best practices and used the activity-based costing (ABC) methodology supported in Circulars A-25 and A-11 to develop the proposed fee schedule. --------------------------------------------------------------------------- Finally, this final rule accounts for, and is consistent with, congressional appropriations for specific USCIS programs. In the proposed rule, DHS outlined the effects of appropriations for FY 2021 and FY 2022.\22\ As explained in the proposed rule, Congress provided USCIS additional appropriations for very specific purposes in FY 2022.\23\ Shortly before publication of the proposed rule, Congress passed a full year appropriation bill for FY 2023. Together, the total FY 2023 appropriations for USCIS were approximately $268.0 million. Congress appropriated USCIS approximately $243.0 million for E-Verify and refugee processing in FY 2023.\24\ Approximately $133.4 million of the $243.0 million was for refugee processing, and the remainder was for E-Verify. In addition, Congress appropriated $25 million for the Citizenship and Integration Grant Program, which is available until September 30, 2024, the end of FY 2024. Id. This means that USCIS received $5 million more than in FY 2022, and it has 2 years to spend the full $25 million. Because USCIS anticipated appropriated funds for citizenship grants in both FY 2022 and FY 2023, the $20 million in FY 2022 and the $25 million in FY 2023 for citizenship grants are not part of the FY 2022/2023 IEFA fee review budget. For several years, USCIS had the authority to spend no more than $10 million for citizenship grants.\25\ Until recently, grant program funding came from the IEFA fee revenue or a mix of appropriations and fee revenue.\26\ If USCIS does not receive appropriations for citizenship grants for FY 2024, then it could use any remaining amount from the $25 million appropriation in the Consolidated Appropriations Act, 2023. --------------------------------------------------------------------------- \22\ See 88 FR 402, 415-417 (Jan. 4, 2023); see also Consolidated Appropriations Act, 2021 (Dec. 27, 2020), Public Law 116-260, at div. F, tit. IV; Consolidated Appropriations Act, 2022, Public Law 117-103 (Mar. 15, 2022) (``Pub. L. 117-103'') at div. F. tit. 4; Extending Government Funding and Delivering Emergency Assistance Act, 2022, Public Law 117-43 (Sept. 30, 2021) (``Pub. L. 117-43'') at div. C. title V, sec. 2501. \23\ See 88 FR 402, 415-416 (Jan. 4, 2023); see also Public Law 117-103. \24\ See Consolidated Appropriations Act, 2023, Public Law 117- 328, div. F, tit. IV (Dec. 29, 2022). \25\ Congress provided $10 million for citizenship and integration grants in FY 2019 (Pub. L. 116-6), FY 2020 (Pub. L. 116- 93), and FY 2021 (Pub. L. 116-260). \26\ USCIS received $2.5 million for the immigrant integration grants program in FY 2013 (Pub. L. 113-6) and FY 2014 (Pub. L. 113- 76). USCIS did not receive appropriations for the immigrant integration grants program in FY 2015, FY 2016, FY 2017, and FY 2018. --------------------------------------------------------------------------- In these cases, appropriation laws for FY 2022 and FY 2023 provide that the funds are only to be used for the specified purposes, and DHS is not required to reduce any current IEFA fee.\27\ As explained in the proposed rule, these appropriations do not overlap with the fee review budget, which will fund immigration adjudication and naturalization services for future incoming receipts. USCIS cannot and does not presume congressional appropriations, especially given the lack of appropriations in the past. If this fee rule does not account for the possibility of no congressional funding in future years and Congress fails to fund a program, either the program cannot continue or USCIS will be forced to reallocate resources assigned to another part of the agency for this purpose. As such, DHS makes no changes to the final rule based on the appropriations for FY 2022 and FY 2023. --------------------------------------------------------------------------- \27\ Public Law 117-43, at section 132, states, ``That such amounts shall be in addition to any other funds made available for such purposes, and shall not be construed to require any reduction of any fee described in section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).'' Likewise, Public Law 117-43, at section 2501, states ``That such amounts shall be in addition to any other amounts made available for such purposes and shall not be construed to require any reduction of any fee described in section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).'' Similar wording is in Public Law 117-328 in div F. tit. IV. USCIS has a long history of funding citizenship and integration grants from IEFA revenue, appropriations, or a mix of both. ---------------------------------------------------------------------------

C. Changes From the Proposed Rule

This final rule adopts, with appropriate changes, the regulatory text in the proposed rule published in the Federal Register on January 4, 2023. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements; Proposed rule, 88 FR 402. DHS is making several changes in this final rule based on comments received on the proposed rule or as required by the effects of those changes. As explained throughout this preamble, DHS exercises its discretionary authority to establish fees, provide fee exemptions, allow fee waivers, provide lower fees, or shift the costs of benefits and services based on numerous factors, including adequately funding USCIS operations, balancing beneficiary-pays and ability-to-pay principles, burdening requestors and USCIS, considering humanitarian concerns, and other policy objectives as supported by data. This final rule also relies on the justifications articulated in the proposed rule, except as modified and explained throughout this rule in response to public comments, intervening developments, and new information. As stated in the proposed rule, DHS is not repeating the amendatory instructions and regulatory text for ministerial, procedural, or otherwise non-substantive changes adopted from the 2020 fee rule. 88 FR 421. A description of each change is as follows:

1. Reduced Costs and Fees

DHS has revised the USCIS budget underlying the final rule. In the proposed rule, USCIS projected that its IEFA non-premium cost projections must increase by 36.4 percent from $3,776.3 million in FY 2021 to an average of $5,150.7 million in FY 2022/2023 to fulfill USCIS' operational requirements. See 88 FR 402, 428 (Jan. 4, 2023). In this final rule, USCIS revises the FY 2022/2023 cost projection to approximately $4,424.0 million, a $726.7 million or 14.1 percent decrease compared to the proposed rule. See Table 2 of this preamble. [[Page 6207]] [GRAPHIC] [TIFF OMITTED] TR31JA24.007 DHS is authorized by INA section 286(m), 8 U.S.C. 1356(m), to set USCIS fees at a level to recover ``the full costs'' of providing ``all'' ``adjudication and naturalization services,'' and ``the administration of the fees collected.'' This necessarily includes support costs, and USCIS' current budget forecasts a deficit based on fully funding all of its operations. DHS must make up that difference either by cutting costs, curtailing operations, or increasing revenue. DHS examined USCIS recent budget history, service levels, and immigration trends to forecast its costs, revenue, and operational metrics in order to determine whether USCIS fees would generate sufficient revenue to fund anticipated operating costs. This increase in funding ensures that USCIS can meet its operational needs during the biennial period. [GRAPHIC] [TIFF OMITTED] TR31JA24.008 Reducing the budget allows DHS to finalize some fees that are lower than in the proposed rule and offer additional fee exemptions in response to public comments requesting lower fees. In this final rule, DHS removes approximately $726.7 million of average annual estimated costs by making the following changes: Transferring costs to Premium Processing revenue; Reducing the estimated marginal costs of the Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers Interim Final Rule to be funded; \28\ and --------------------------------------------------------------------------- \28\ 87 FR 18078 (Mar. 29, 2022). --------------------------------------------------------------------------- Including efficiency estimates based on improved efficiency measures. DHS revises the estimated cost and revenue differential to $1,141.5 million in this final rule. See Table 3 of this preamble. DHS issues this final rule to adjust USCIS' fee schedule to recover the full cost of providing immigration adjudication and naturalization services. a. Transferring Costs to Premium Processing Revenue DHS has historically excluded premium processing revenue and costs from its IEFA fee reviews and rulemakings to ensure that premium processing funds are available for infrastructure investments largely related to information technology, to provide staff for backlog reduction, and to ensure that non-premium fees were set at a level sufficient to cover the base operating costs of USCIS. This was done because the INA, as amended by the District of Columbia Appropriations Act of 2001 provided that premium processing revenue shall be used to fund the cost of offering premium service, as well as the cost of infrastructure improvements in adjudications and customer service processes. See 87 FR 1832. In the proposed rule at 88 FR 420, USCIS outlined its planned uses of premium processing revenue to provide premium processing service, improve information technology infrastructure, and reduce backlogs. Therefore, revenue from premium processing, the costs for USCIS to provide premium processing service, the costs to improve information technology infrastructure, and the costs directed at reducing the backlog were not considered in the proposed fees. On October 1, 2020, the Continuing Appropriations Act, which included the USCIS Stabilization Act, was signed into law, codifying new section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A). Among other things, the USCIS Stabilization Act established new premium processing fees and expanded the permissible uses of revenue from the collection of premium processing fees, including improvements to adjudication process infrastructure, responses to adjudication demands, and to otherwise offset the cost of providing adjudication and naturalization services. Then, on March 30, 2022, DHS published a final rule, Implementation of the Emergency Stopgap USCIS Stabilization Act, [[Page 6208]] implementing part of the authority provided under the USCIS Stabilization Act to offer premium processing for those benefit requests made eligible for premium processing by section 4102(b) of that law. See 87 FR 18227 (premium processing rule). On December 28, 2023, DHS published a final rule, Adjustment to Premium Processing Fees, effective February 26, 2024, that increased premium processing fees charged by USCIS to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28, 2023). The adjustment increases premium processing fees from $1,500 to $1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4. The proposed rule did not include changes directly resulting from the USCIS Stabilization Act or premium processing rule, as DHS was still in the early stages of implementation. It stated that DHS would consider including premium processing revenue and costs in the final rule., as appropriate, as DHS would have more information about the revenue collected from premium processing services by the time DHS publishes a final rule. See 88 FR 402, 419 (Jan. 4, 2023). As a result of additional information gathered over the passage of time since the proposed rule and the December 28, 2023 Adjustment to Premium Processing Fees final rule, 88 FR 89539, in this final rule, DHS has transferred $129.8 million in costs to premium processing to account for future premium processing revenue projections. b. Reducing the Work To Be Funded by the Asylum Program Fee. DHS proposed a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. 88 FR 451. DHS has begun implementation of the Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (Asylum Processing IFR) (87 FR 18078 Mar. 29, 2022) rulemaking, but full implementation of the IFR is delayed while DHS resolves litigation around the Circumvention of Lawful Pathways rule. See 88 FR 31314 (May 16, 2023). Therefore, DHS needs to generate less revenue from the Asylum Program Fee than we estimated was needed in the proposed rule. Accordingly, we have provided a lower fee in this final rule for certain small employers and nonprofits in response to comments requesting lower fees for these groups. Businesses with 25 or fewer full-time equivalent employees will pay a $300 Asylum Program Fee instead of $600, and half of the full fee for Form I-129. Nonprofits will pay $0. How DHS determined which businesses would receive such relief from the full fee is discussed later in this section. DHS estimates the revised Asylum Program Fee will generate approximately $313 million in revenue, compared to the $425 million that was estimated in the proposed rule from charging $600 with no exemptions or discounts. DHS recognizes that reducing the USCIS budget due to the lower projected revenue from the Asylum Program Fee risks a revenue shortfall if the Asylum Processing IFR is fully implemented and the associated costs incurred. However, DHS's Asylum Processing IFR workload is somewhat flexible because DOJ can share some--though not all--of the workload. On the other hand, if the Asylum Processing IFR is not fully implemented, USCIS still has a significant need for the revenue. Although the amount of the fee was based on the costs of the Asylum Processing IFR, it was proposed ``. . . to fund part of the costs of administering the entire asylum program . . .'' 88 FR 849. USCIS Asylum Division expense estimates are over $400 million a year before adding the costs of the Asylum Processing IFR, and USCIS is regularly adding new asylum offices and capabilities. Thus, DHS projects that the total costs of the asylum program will exceed the revenue from the new fee even before any new capacity is added to implement the Asylum Processing IFR. Further, DHS notes that USCIS cannot direct the revenue from the Asylum Program Fee precisely to the marginal costs that result from the implementation of the Asylum Processing IFR, as the Asylum Program Fee, like other fees, will be deposited into the general IEFA and not an account specific to the IFR or to the asylum program. In addition, if Asylum Division expenses are greatly reduced or funded by a Congressional appropriation, and USCIS determines the Asylum Program Fee is not needed, USCIS can pause collection of the Asylum Program Fee using the authority in 8 CFR 106.3(c). The costs for administering the asylum program not funded by the revenue collected from the Asylum Program Fee will continue to be funded by other fees. c. Including Processing Efficiency Estimates Based on Improved Efficiency Measures USCIS is making progress reducing backlogs and processing times. For example, USCIS committed to new cycle time goals in March 2022.\29\ These goals are internal metrics that guide the backlog reduction efforts of the USCIS workforce and affect how long it takes the agency to process cases. As cycle times improve, processing times will follow, and requestors will receive decisions on their cases more quickly. USCIS has continued to increase capacity, improve technology, and expand staffing to achieve these goals. --------------------------------------------------------------------------- \29\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders'' (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work. ---------------------------------------------------------------------------

2. Changes in the Asylum Program Fee

DHS proposed a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. See 88 FR 402, 451 (Jan. 4, 2023). As explained in the proposed rule, DHS determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers. See 88 FR 402, 451-454 (Jan. 4, 2023). DHS arrived at the amount of the Asylum Program Fee by calculating the amount that would need to be added to the fees for Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, and Form I-140, Immigrant Petition for Alien Worker, to collect the Asylum Processing IFR estimated annual costs. Id. The Asylum Program Fee adds a fee, only for Form I-129, I- 129CW, and Form I-140 petitioners, in order to maintain lower fees for other immigration benefit requestors than if these asylum costs were spread among all other fee payers. The proposed rule provided examples of alternative Form I-485, Application to Register Permanent Residence or Adjust Status, and I-765, Application for Employment Authorization, proposed fees if those applications were burdened with the Asylum Processing IFR estimated annual costs. Id at 452. The proposed fees for Forms I-485, I-765, and others were lower with the shift of asylum program costs to employers through the new fee. If Forms I-129, I- 129CW, and I-140 recover more of those [[Page 6209]] costs, then that means other forms need not recover as much, resulting in lower proposed fees for Forms I-485, I-765, and others that recovered more than full cost in the proposed rule. DHS stands by this approach to lower fees for other immigration benefit requestors less able to pay by limiting the Asylum Program Fee to Forms I-129, I-129CW, and I-140. DHS summarizes and responds to the comments on the Asylum Program Fee in more detail in section IV.G.2.a. of this preamble. After considering public comments, in the final rule, DHS exercises its discretionary authority to establish fees, balancing the beneficiary- pays and ability-to-pay principles, and to address the negative effects that commenters stated would result, by exempting the Asylum Program Fee for nonprofit petitioners and reducing it by half for small employers. See 8 CFR 106.2(c)(13).\30\ The fee will be $0 for nonprofits; $300 for small employers (defined as firms or individuals having 25 or fewer FTE employees); and $600 for all other filers of Forms I-129, I-129CW, and I-140. See 8 CFR 106.1(f) and 106.2(c)(13). --------------------------------------------------------------------------- \30\ DHS recognizes that many small employers and nonprofits submit USCIS Form I-907, Request for Premium Processing, with their Form I-129. Because premium processing is an optional request for faster processing and not required to obtain an immigration benefit, DHS makes no changes to premium processing fees for those groups. ---------------------------------------------------------------------------

3. Defining Small Employer

DHS did not propose to provide any fee exemptions or discounts based on employer size. Many commenters, however, wrote that the proposed new fees for employment-based immigration benefit requests could make it difficult for small companies to pay the fees or it may hinder their ability to hire the workers they need. Balancing the need to shift the costs of services, adequately fund USCIS operations, and balance the beneficiary-pays and ability-to-pay principles, DHS determined that a discount based on the size of the business is consistent with the ability-to-pay principle that was articulated in the proposed rule. See 88 FR 402,424-26 (Jan. 4, 2023). The final rule defines ``small employer'' as having 25 or fewer full-time equivalent (FTE). See 8 CFR 106.1(f). When determining which employers should be considered small, DHS considered what definition could be administered to provide the relief requested by commenters without adding costs to USCIS, additional burden to petitioners, or causing delays in intake and processing of the submitted requests. The volume of forms submitted to USCIS requires that benefit request intake be automated to the extent possible, including the analysis of whether the correct fee has been paid based on if the petitioner meets the criteria for the fee they have submitted with their request. DHS also considered other exemptions provided for the same or similar forms and how the term ``small employer'' is defined in other contexts. DHS reviewed INA section 214(c)(9)(B), 8 U.S.C. 1184(c)(9)(B), which provides that the ACWIA fee is reduced by half for any employer with not more than 25 FTE employees who are employed in the United States (determined by including any affiliate or subsidiary of such employer). Because the ACWIA fee and the Asylum Program fee are both applied to the Form I-129, DHS decided that using a consistent definition was preferable. DHS also determined that defining small employer as 25 or fewer full time equivalent employees was appropriate because: (1) it is consistent with what Congress has provided in statute that it considers small with regard to the applicability of certain fees for employment- based petitions submitted to USCIS; (2) DHS has a long history of administering the ACWIA fee, and (3) determining if the petitioner is eligible for the fee discount requires minimal additional evidence.\31\ This definition will be applied to the fee discount and exemption for the Asylum Program Fee and the discount for the Form I-129 fee (discussed later in this section). --------------------------------------------------------------------------- \31\ As noted in the Paperwork Burden Act section of this final rule, and in the final form instructions for Forms I-129 and 140 provided in the docket, DHS will require that petitioners submit the first page of their most recent IRS Form 941, Employer's QUARTERLY Federal Tax Return. We will determine at intake if the petitioner has submitted the lower fee or no fee based on the number indicated in Part 1, question 1, Number of employees who received wages, tips, or other compensation for the pay period. ---------------------------------------------------------------------------

4. Defining Nonprofit

DHS did not propose any relief from any fee in the proposed rule for nonprofit entities. Many commenters, however, wrote that the proposed new fees for nonprofits could make it difficult for the nonprofits to pay the fees or it may hinder their ability to hire the workers they need. DHS agrees that the type of organizations that qualify as a nonprofit generally provide a service to the public.\32\ Nonprofit organizations may include religious, educational, or charitable organizations and may not be required to pay federal taxes.\33\ DHS understands that organizations that do not pursue monetary gain or profit must use funds for USCIS fees that they would otherwise use in pursuit of public and private service. Therefore, balancing the need to shift the costs of services, adequately funding USCIS operations, and the beneficiary-pays and ability-to-pay principles, DHS determined that a discount for nonprofits is consistent with the ability-to-pay principle that was articulated in the proposed rule. See 88 FR 402,424-26 (Jan. 4, 2023). DHS acknowledges that allowing this discount for certain large non-profits, such as universities and hospitals, may seem inconsistent with the ability-to- pay principle. However, DHS notes that this treatment is consistent with their tax-exempt status and believes that the public service performed by these entities further justifies the fee discount. --------------------------------------------------------------------------- \32\ See U.S. Department of the Treasury, U.S. Internal Revenue Service, Exempt Organization Types, https://www.irs.gov/charities-non-profits/exempt-organization-types (Page Last Reviewed or Updated: 05-Dec-2023). \33\ Nonprofits may be required to pay certain other taxes. See, U.S. Department of the Treasury, U.S. Internal Revenue Service, Federal Tax Obligations of Non-Profit Corporations at https://www.irs.gov/charities-non-profits/federal-tax-obligations-of-non-profit-corporations. (Page Last Reviewed or Updated: 05-Dec-2023). --------------------------------------------------------------------------- DHS determined that the most appropriate definition for nonprofit is the definition in the Internal Revenue Code (IRC), specifically 26 U.S.C. 501(c)(3) (2023). 8 CFR 106.1(f)(2). As with the definition of small employer, DHS considered costs to USCIS, burden on petitioners, and intake and processing requirements. DHS also considered how the term nonprofit is defined in other contexts. Commenters that requested relief for nonprofits did not suggest an alternative definition for nonprofit than that used for Federal income tax purposes or as provided for the ACWIA fee reduction in 8 CFR 214.2(h)(19)(iv). The INA provides for a reduced ACWIA fee if a petitioner is ``a primary or secondary education institution, an institution of higher education, as defined in section 1001(a) of title 20, a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization, or a governmental research organization.'' INA section 214(c)(9)(A), 8 U.S.C. 1184(c)(9)(A). The INA does not define ``nonprofit'' in terms of the IRC and the definitions of ``institution of higher education'' and ``government research organization'' in 8 CFR 214.2(h)(19)(iv)(B) are not tied to the IRC. For ease of administration, DHS will not require that the petitioner nonprofit [[Page 6210]] status be limited to research or educational purposes, as in 8 CFR 214.2(h)(19)(iv)(B). DHS has decided that eligibility for fee reductions and fee exemptions for nonprofits provided in this final rule will be limited to nonprofit organizations approved by the Internal Revenue Service as a nonprofit entity under section 501(c)(3) of the IRC or as a government research organization, and that USCIS will not impose the burden on petitioners of demonstrating an educational or research purpose. This approach will ensure that the primary types of organizations eligible for the ACWIA fee reduction in the INA--educational institutions, nonprofit research organizations, and governmental research organizations--will also be eligible for the fee reductions and exemptions under this rule, as will other nonprofit entities with a charitable purpose under section 501(c)(3). DHS considered including but will not include entities organized under 501(c)(4) and 501(c)(6) of the IRC in the definition of nonprofit in this rule. Tax-exempt organizations under section 501(c)(4) include social welfare organizations and local associations of employees, while tax-exempt organizations under 501(c)(6) include business leagues, chambers of commerce, real estate boards, boards of trade, and professional football leagues. See 26 U.S.C. 501(c)(4) & (6). Both types of entities, unlike public charities under 501(c)(3), may engage in lobbying activities. Although 8 CFR 214.2(h)(19)(iv)(A) includes nonprofit or tax-exempt organizations under 501(c)(3), 501(c)(4), and 501(c)(6) for purposes of the ACWIA fee reduction, this eligibility is further cabined by 8 CFR 214.2(h)(19)(iv)(B), requiring that such entities have been ``approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service'' (emphasis added). As a practical matter, DHS experience indicates that few 501(c)(4) or 501(c)(6) entities are likely to be organized for research or educational purposes and meet the definition of ``affiliated or related nonprofit entity'' under 8 CFR 214.2(h)(19)(iii), which requires a close tie to an institution of higher education. Therefore, DHS has determined that in defining eligibility for nonprofit fee reductions and exemptions under this rule, it is appropriate to include 501(c)(3) entities while excluding 501(c)(4) and 501(c)(6) entities. This definition will be applied to the fee discount and exemption for the Asylum Program Fee and the discount for the Form I-129 fee (discussed later in this section).

5. Changes to EB-5 Volume Forecasts

DHS has updated the USCIS volume forecasts for the EB-5 workload based on more recent and reliable information than what was available while drafting the proposed rule. Increasing the fee-paying receipt forecasts for these workloads conversely increased the estimated revenue generated by EB-5 fees. DHS also revised the USCIS budget to reflect these changes. For the proposed rule, DHS estimated the EB-5 workload based on statistical modeling, immigration receipt data, and internal assessments, like other workload forecasts. 88 FR 402, 432-438. The proposed rule discussed that EB-5 receipts decreased from FY 2016 to FY 2020. 88 FR 402, 509-510. At the time of the proposed rule, DHS had very limited information upon which to base estimates of the new workload required by the EB-5 Reform and Integrity Act of 2022. See id. at 557. In this final rule, DHS updated the EB-5 workload estimates to account for the effect of the EB-5 Reform and Integrity Act of 2022. USCIS believes these estimates better represent the EB-5 filing receipts it can expect. Increasing the volume forecasts for EB-5 also increases the amount of revenue generated by the EB-5 workload for the final rule budget. As explained elsewhere, DHS has revised the USCIS budget to accommodate the revenue generated by the fees and volumes in this final rule. Increasing the fee-paying receipt forecasts for these workloads increases the estimated revenue generated by the EB-5 fees in the final rule. 88 FR 72870. [[Page 6211]] [GRAPHIC] [TIFF OMITTED] TR31JA24.009

6. Changes to H-1B Registration Fee Volume Forecasts

DHS also revises the USCIS volume forecasts for H-1B registration workload, to 424,400, based on more recent information than was available while drafting the proposed rule, such as the total registrations for the FY 2023 cap year. The proposed rule forecasted 273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast for the proposed rule is close to the 274,237 total registrations in the FY 2021 cap year.\34\ However, after the proposed rule was published, a total of 780,884 petitioners registered for an FY 2024 cap-subject H-1B employee. This final rule forecast of 424,400, based on more recent data, is closer to the total registrations for the FY 2023 cap year. Increasing the fee-paying receipt forecasts for these workloads increases the estimated revenue generated by the H-1B registration fees in the final rule. 88 FR 72870. --------------------------------------------------------------------------- \34\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, H-1B Electronic Registration Process, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process. ---------------------------------------------------------------------------

7. Online Filing Fees

The proposed rule provided lower fees for some online requests based on estimated costs for online and paper filing. 88 FR 402, 489- 491. The fee differences between paper and online filing ranged from $10 to $110. Id. This final rule provides a $50 discount for forms filed online with USCIS. 8 CFR 106.1(g). The discount is not applied in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee. See, e.g., 8 CFR 106.2(a)(50)(iv). As described in the proposed rule and supporting documentation, the cost savings USCIS experiences from online filing differs from form to form depending on many factors. Many commenters wrote that USIS was penalizing those who still filed on paper by making paper filing more expensive. The commenters misunderstand the policy goal of the online discount because DHS is not increasing the fee for paper filings by shifting costs for online filing to the fee for paper requests as a form of penalty or deterrent. If the online discount was not provided, paper form fees would not decrease accordingly. DHS wants to incentivize online filing, but we proposed fees based on the costs savings calculated in the ABC model. In response to comments, DHS reevaluated the difference between online and paper fees. In the proposed rule, the proposed fee differences ranged from $0 to $110. In this final rule, DHS again has determined that online filing provides costs savings to USCIS and requestors, increases flexibility and efficiency in adjudications, and those benefits should be reflected in lower fees. However, in the final rule DHS takes the expected savings from online filing and divides it among all online filed forms by establishing that the fees for online filing will be $50 less than for the same request filed on paper.\35\ Furthermore, DHS believes that the $50 reduced cost can be reasonably anticipated to be consistent for future USCIS online filing capabilities and has decided to provide that online filing fees will be $50 less than the paper filing fee as additional forms are made available for online filing, unless otherwise noted. See 8 CFR 106.1(g). DHS emphasizes it establishes the $50 difference because [[Page 6212]] USCIS experiences moderately reduced costs from online filing. Additionally, applying a uniform $50 reduced cost for online filing to all forms will make the reduced fee easier for USCIS to administer and be less confusing to the public when calculating the fee. Although DHS believes that it should encourage online filing as a matter of sound policy, contrary to the suggestions of some commenters, DHS is not increasing the fee for paper filings by shifting costs for online filing to the fee for paper requests as a form of penalty or deterrent. For applicants who experience a lack of access to computers or the internet, paper filing will generally remain an option.\36\ --------------------------------------------------------------------------- \35\ DHS applies this discount to USCIS online filings only and does not apply this provision to fees set in this rule for immigration benefit requests that are submitted to either USCIS or CBP when the request is submitted to and fee collected by CBP online. See, e.g., 8 CFR 106.2(a)(13)--(15). \36\ USCIS Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, must be filed online, but no fee is required. See, https://www.uscis.gov/i-134a, last Reviewed/ Updated: 08/11/2023. ---------------------------------------------------------------------------

8. Adjust Fees for Forms Filed by Individuals by Inflation

The proposed rule included a wide range of proposed fees. Consistent with past fee rules, DHS used its discretion to limit some proposed fee increases that would be overly burdensome on applicants, petitioners, and requestors if set at ABC model output levels. 88 FR 402, 450-451. The proposed rule also included a provision to adjust fees by inflation in the future. 88 FR 402, 516. DHS received many comments about the method that USCIS used to calculate how its costs should be dispersed among the requests for which fees are charged. Some commenters wrote that DHS should limit the increase in USCIS fees by the amount of inflation. DHS analyzed the suggestion and determined that from December 2016 (the month FY 2016/ 2017 fee rule went into effect) to June 2023,\37\ the CPI-U increased by 26.37 percent.\38\ Using the CPI-U as the measure for cost and fee increases is consistent with statutes that authorize DHS to adjust USCIS fees. See, e.g. section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C) (providing that DHS may adjust the premium fees based on the change in the CPI-U). DHS then calculated what the fees would be if adjusted by 26.37 percent, rounded to the nearest $5 increment, consistent with other fees (and reducing online filing fees by $50 as explained earlier). After considering the amount of the increase, as well as the impacts of the applicable fees on individual filers, DHS determined (1) that the additional revenue that would be generated by increasing the subject forms by inflation would be appropriate for expected revenue from those requests in the final rule, (2) increasing the fees by only inflation as suggested in public comments balanced the need to recover increased USCIS costs with the impacts of the fees on individuals and families, and (3) to the extent that an inflation adjustment did not recover the relative costs of the applicable requests, either other fees could be increased to make up the unrecovered costs using the ability to pay principle or USCIS could reduce its budget. In the final rule, except for certain employment- based benefit request fees, DHS finalized the fees at either the proposed fee level or the current fee adjusted for inflation, whichever was lower. A comparison of current, proposed, and final fees can be found in Table 1. --------------------------------------------------------------------------- \37\ DHS used June 2023 as the end date for the period of inflation to be consistent with the 2023 premium processing fee inflation adjustments. 88 FR 89539. DHS acknowledges that inflation will likely change from the June 2023 CPI-U before the fees in this rule take effect. The time and effort required to calculate the fees for this rule, draft comment responses, prepare supporting documents, perform the regulatory impact analysis, small entity impact analysis, and clear the rule through the necessary channels requires that a reasonable endpoint be selected on which to base the required calculations and move the final rule forward without continuous updates. \38\ DHS calculated this by subtracting the December 2016 CPI-U (241.432) from the June 2023 CPI-U (305.109), then dividing the result (63.677) by the December 2016 CPI-U (241.432). Calculation: (305.109 - 241.432)/241.432 = .2637 x 100 = 26.37 percent. --------------------------------------------------------------------------- Some of the proposed fees set to increase less than inflation are the fees for Form N-400, Application for Naturalization, certain adoption-related forms (e.g., Form I-600, Petition to Classify Orphan as an Immediate Relative and Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative), and other immigration benefit requests where DHS limited the proposed fee increase to 18 percent increase (not including biometrics fees), as described in the proposed rule. See 88 FR 402, 450-451, 486-487 (Jan. 4, 2023). This final rule additionally holds several fees to the rate of inflation since the previous fee increase in 2016. For example, DHS adjusts the paper filing fees for Forms I-130, I-485, I-539, and I-751 by inflation. DHS notes that an increase of a straight 26.37 percent based solely on inflation deviates from the ABC model that OMB Circular A-25 recommends, and the method generally used by DHS in past USCIS fee rules. However, as stated in past fee rules, the proposed rule, and in responses to comments in this rule, DHS is not strictly bound by A-25; nor is it limited to setting fees based on the costs of the service under 31 U.S.C. 9701. For public policy reasons, DHS may use and has used its discretion to limit fee increases for certain immigration benefit request fees that would be overly burdensome on applicants, petitioners, and requestors if set at ABC model output levels. 81 FR 73308 (the 2016 final rule noted that the Application for Naturalization fee has not changed in nearly a decade and was being set at less than it would be if the 2007 fee were simply adjusted for inflation). DHS believes that this combination of limiting certain fee increases for policy reasons, setting fees using the ABC model, and adjusting fees by inflation, in addition to being responsive to public comments, provides a logical, reasonable, and balanced approach. For the proposed rule, and consistent with past fee rules, DHS used its discretion to limit some proposed fee increases that would be overly burdensome on applicants, petitioners, and requestors if set at activity-based costing (ABC) model output levels. 88 FR 402, 450-451. DHS is doing the same in the final rule.

9. Fee Exemptions and Fee Waivers

The proposed rule included new fee exemptions and proposed to codify existing fee exemptions. See 88 FR 402, 459-481 (Jan. 4, 2023). This final rule expands fee exemptions for humanitarian filings and adoptions. See Tables 5B, 7; 8 CFR 106.3(b). Many commenters requested that DHS provide more fee exemptions for humanitarian related benefit requests. In response to the public comments, DHS reexamined the fees for victim-based or humanitarian requests and other categories and decided to provide more related fee exemptions. Normally, expanding fee waivers or exemptions may increase fees, as explained in the proposed rule. 88 FR 402, 450-451. However, in this final rule, DHS revised the USCIS budget to accommodate the revenue generated by the fees and fee- paying receipts. As such, DHS is implementing these fee exemptions without increasing fees for other benefit requests. a. No New Fee Waivers DHS acknowledges the importance of ensuring that individuals who cannot afford filing fees have access to fee waivers. DHS has primarily sought to ease the burden of fee increases by significantly expanding the number of forms that are now fee exempt. See 8 CFR 106.3(b). DHS believes it has provided fee waivers for the appropriate forms and categories by emphasizing humanitarian, victim-based, and citizenship- related benefits while changing some fee waivers to fee exemptions. Additional fee waivers [[Page 6213]] would require USCIS to increase fees for other forms and requestors to compensate for fewer requests paying fees. DHS has sought to balance the need for the fee waivers and the need to ensure sufficient revenue and does not believe additional fee waivers are appropriate. b. New Fee Exemptions Many commenters requested that DHS provide more fee exemptions and free services for humanitarian-related benefit requests. In response to the public comments, DHS reexamined the fees for victim-based or humanitarian requests and other categories and decided to provide fee exemptions for several additional forms. A summary of the current and new exemptions is provided below in Table 5A and 5B. The adoption related fee exemptions are in Table 7. Balancing beneficiary-pays and ability-to-pay and the funding needs of USCIS, DHS has determined that these additional fee exemptions are warranted for the following reasons. Victims of Severe Form Of Trafficking (T Nonimmigrants) In the proposed rule, DHS offered a fee exemption for T nonimmigrant status (``T visa'') applicants, T nonimmigrants, and their derivatives for Form I-290B, Notice of Appeal or Motion, only if filed for any benefit request filed before adjusting status or for Form I- 485, Application to Register Permanent Residence or Adjust Status. In this final rule, DHS expands the exemption for this category of requestors to include Form I-290B if filed for ancillary forms associated with Form I-485. DHS also exempts the fee for Form I-824, Application for Action on an Approved Application or Petition, for this population in this final rule. As stated in the proposed rule, the T visa program is historically underused and the annual statutory cap of 5,000 has never been reached. See 88 FR 460. DHS aims to further encourage participation of eligible victims of trafficking in the T visa program by expanding fee exemptions as provided in this final rule. DHS believes that these expanded fee exemptions advance the humanitarian goals of the T visa program by reducing barriers for this particularly vulnerable population while meeting the agency's funding needs because of the relatively low receipts and cost transfer for these forms.\39\ Also, providing these fee exemptions helps to ensure parity of access to immigration relief for T visa applicants, T nonimmigrants, and their derivatives with similarly situated humanitarian categories of requestors. Finally, these additional exemptions will help account for the trauma and financial difficulties that T nonimmigrants may endure long after escaping their traffickers. --------------------------------------------------------------------------- \39\ From FY 2018 through FY 2022, T nonimmigrants filed a five- year annual average of 311 Forms I-290B and a five-year annual average of 4 Forms I-824. See RIA, Table 47. Based on these annual average receipts, the transfer payment from the government to benefit requestors is calculated to be $171,672 for Form I-290B and $2,242 for Form I-824. See RIA, Table 48. This represents 0.09% and 0.001%, respectively, of the grand total transfer payments. See RIA, Table 48. --------------------------------------------------------------------------- Victims of Qualifying Criminal Activity (U Nonimmigrants) DHS provided fee exemptions in the proposed rule for U nonimmigrant status (``U visa'') petitioners and U nonimmigrants filing Form I-192, Form I-193, Form I-290B, and Form I-539 in limited circumstances. DHS expands these fee exemptions in this final rule such that Form I-192, Form I-193, and Form I-539 are fee exempt when filed by a U visa petitioner or U nonimmigrant at any time, and Form I-290B is also fee exempt if filed for ancillary forms associated with Form I-485. DHS also expands the fee exemption for Form I-765 to include initial, renewal, and replacement requests. Furthermore, DHS provides additional fee exemptions for Form I-131, Form I-485, Form I-601, Form I-824 and Form I-929 for this population. Providing these fee exemptions helps to ensure parity of access to immigration relief for U nonimmigrants with similarly situated humanitarian categories of requestors. These additional fee exemptions are provided in this final rule for the reasons stated in Section IV.F of this preamble where DHS responds to the public comments provided on the fees proposed for U nonimmigrants. VAWA Form I-360 Self-Petitioners and Derivatives DHS offered fee exemptions in the proposed rule for VAWA self- petitioners and derivatives filing Forms I-131, I-212 and I-601 depending on whether Forms I-360 and I-485 are filed concurrently or currently pending adjudication. Additionally, exemptions were proposed for Forms I-290B and I-485 when the Form I-485 is filed concurrently with the Form I-360, and for initial filers of I-765 for VAWA self- petitioners and derivatives. For the reasons stated in Section IV.F of this preamble in response to the public comments provided on VAWA self- petitioners, this final rule expands fee exemptions to include when Form I-360 and Form I-485 are filed separately and for some ancillary forms, when the I-485 is not pending. DHS also expands the fee exemption for Form I-290B filed by VAWA self-petitioners to include any benefit request filed before adjusting status or for Form I-485 and associated ancillary forms. Additionally, this final rule provides VAWA self-petitioners fee exemptions for Form I-601A, Form I-824, and Form I-765 renewal and replacement requests. Providing these fee exemptions helps to improve parity of access to immigration relief for VAWA self- petitioners with similarly situated humanitarian categories of requestors. On balance, the reduction of barriers to immigration relief for VAWA self-petitioners when compared with the relatively low transfer payment from the government to other benefit requestors supports DHS's decision to provide these fee exemptions.\40\ --------------------------------------------------------------------------- \40\ From FY 2018 through FY 2022, VAWA self-petitioners filed an annual average of 1,273 Forms I-290B and an annual average of 314 Forms I-824. See RIA, Table 47. Based on these annual average receipts, the transfer payment from the government to benefit requestors is calculated to be $1,550,128 for Form I-290B and $36,769 for Form I-824. See RIA, Table 48. This represents 0.09% and 0.001%, respectively, of the grand total transfer payments. See RIA, Table 48. --------------------------------------------------------------------------- Conditional Permanent Residents filing an application for a waiver of the joint filing requirement based on battery or extreme cruelty. For conditional permanent residents (CPRs) seeking a waiver of the Form I-751 joint-filing requirement based on battery or extreme cruelty, DHS provides an additional fee exemption in this final rule. DHS believes that CPRs filing under this exception are similarly situated to other VAWA requestors, for whom DHS has created new fee exemptions in the proposed rule and final rule. As the proposed rule noted with regards to VAWA self-petitioners, see 88 FR 402, 461 (Jan. 4, 2023), abused CPRs may still be living with their abuser or have recently fled their abusive relationship when filing Form I-751. Abusers often maintain control over financial resources to further the abuse, and victims may have to choose between staying in an abusive relationship and poverty and homelessness. Id. Therefore, CPRs who are victims of abuse may lack financial resources or access to their finances. DHS acknowledges that the proposed rule stated that it could not provide this fee exemption because Form I-751 petitioners can seek a joint-filing waiver on multiple grounds at once. Id. at 462. Upon reconsideration, however, DHS sees no reason that providing the fee exemption for CPRs who also request [[Page 6214]] multiple waivers would be infeasible operationally. DHS further notes that CPRs requesting abuse waivers are a relatively small population, id.; RIA Table 47; so even without the budget reductions described earlier, this additional fee exemption would have minimal effect on USCIS revenue and other fees. Abused Spouses and Children Adjusting Status Under CAA and HRIFA In the proposed rule, DHS proposed a fee exemption for abused spouses and children adjusting status under CAA and HRIFA for Form I- 290B only if filed for any benefit request filed before adjusting status or for Form I-485. In this final rule, DHS expands this exemption for this category of requestors to include Form I-290B if filed for ancillary forms associated with Form I-485. DHS also exempts the fee for Form I-824 for this population. DHS has determined that these new exemptions are warranted because these applicants can face many of the ongoing financial obstacles as other VAWA requestors, as discussed earlier. These additional fee exemptions, which DHS has extended to one or most of the categories listed in Table 5B, improve the parity of fee exemptions amongst humanitarian and protection-based immigration categories. Given the very low number of applicants for these two populations (see 88 FR 402, 462, Jan. 4, 2023), DHS anticipates that these additional fee exemptions will have a negligible impact on its budget. Abused Spouses and Children Seeking Benefits Under NACARA and Abused Spouses and Children of LPRs or U.S. Citizens Under INA sec. 240A(b)(2) For abused spouses and children seeking benefits under NACARA as well as abused spouses and children of LPRs or U.S. citizens under INA sec. 240A(b)(2), DHS proposed fee exemptions for Form I-765 initial requests submitted under 8 CFR 274A.12(c)(10). In this final rule, DHS expands these fee exemptions to include Form I-I-765 renewal and replacement requests, as well as Form I-824 for both categories of requestors. DHS determined that these new exemptions are warranted because abused NACARA applicants may face many of the ongoing financial obstacles as other VAWA requestors, as discussed previously. These additional fee exemptions, which DHS has extended to one or most of the categories listed in Table 5B, improve the parity of fee exemptions amongst humanitarian and protection-based immigration categories. Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF and their derivative beneficiaries. DHS proposed fee exemptions in the proposed rule for Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF and their derivative beneficiaries filing Form I-290B for any benefit request filed before adjusting status or Form I-485 and Form I-765 initial requests. In this final rule, DHS expands these fee exemptions for this category of requestors to include Form I-290B if filed for ancillary forms associated with Form I-485 and Form I-765 replacement and renewal requests. DHS also exempts the fee for Form I-824 for this population. DHS echoes the reasoning provided in the proposed rule as to why this population merits additional fee exemptions. See 88 FR 463. DHS believes that it is an inefficient use of USCIS resources to adjudicate individual fee waiver requests for this group when such requests will likely be granted. DHS also believes that the time saved in the adjudication process for these individuals will demonstrate the agency's ``full and prompt cooperation, resources, and support'' for this population as directed by the President.\41\ Also, DHS experience indicates that many in the OAW population move often, and have experienced challenges in securing employment authorization documents (EADs) that have resulted in USCIS receiving many EADs back as undeliverable (for example, needing to relocate after being resettled in the United States, or not having their initial EAD properly transferred to their new address), which would have required them to submit additional requests such as Form I-765 with the fee to request a replacement EAD. DHS acknowledges that these challenges faced by this population result from circumstances beyond their control, and therefore provides expanded fee exemptions to improve their access to immigration benefits for which they are eligible. --------------------------------------------------------------------------- \41\ See Memorandum on the Designation of the Department of Homeland Security as Lead Federal Department for Facilitating the Entry of Vulnerable Afghans into the United States, Aug. 29, 2021. --------------------------------------------------------------------------- Special Immigrant Juveniles (SIJs) In the proposed rule, DHS proposed a fee exemption Form I-290B filed by SIJs for any benefit request filed before adjusting status or for Form I-485. In this final rule, DHS expands this fee exemption to include Form I-290B if filed for ancillary forms associated with Form I-485. DHS also provides a fee exemption for SIJs filing Form I-601A and Form I-824. Notwithstanding that SIJs adjust status in the United States and do not generally need to use Form I-601A, some individuals in this category do file the form. Given the very small number of receipts, DHS provides a fee exemption for SIJs filing Form I-601A. DHS believes that these expanded fee exemptions align with the reasoning for exempting fees for this population given in the proposed rule (see 88 FR 463) and improves the parity of fee exemptions among similarly situated humanitarian and protection-based immigration categories. Current and Former U.S. Armed Forces Service Members, Including Persons Who Served Honorably on Active Duty in the U.S. Armed Forces filing under INA sec. 101(a)(27)(K) For current and former U.S. Armed Forces service members, including persons who served honorably on active duty in the U.S. Armed Forces filing under INA sec. 101(a)(27)(K), 8 U.S.C. 1101(a)(27(K), DHS proposed a fee exemption for Form I-765 initial requests for the service member in the proposed rule. DHS expands this fee exemption in the final rule to include Form I-765 renewal and replacement requests for the service member. DHS provides these additional fee exemptions in furtherance of our commitment to reduce barriers and improve access to immigration benefits for individuals who served in the U.S. Armed Forces, as described in the proposed rule.\42\ DHS also believes that providing a fee exemption for this population for Form I-765 renewal and replacement requests improves parity with similarly situated immigration categories like special immigrant Afghan and Iraqi translators and interpreters. --------------------------------------------------------------------------- \42\ See 88 FR 465 (noting DHS's involvement in the initiative to support service members, veterans, and their immediate family members in recognition of their commitment and sacrifice). ---------------------------------------------------------------------------

1. Summary Tables of Fee Exemption Changes in the Final Rule

Tables 5A, 5B, and 5C compare fee exemptions and fee waiver eligibility at three points in time: those currently in effect, those provided in the proposed [[Page 6215]] rule, and those provided in this final rule. These tables include fee exemptions and fee waivers that are required under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7), and other immigration categories for which DHS is providing additional fee exemptions and waivers. These tables do not include all USCIS benefit requests or groups for which DHS currently provides or will provide a fee exemption or waiver in this rule or by policy.\43\ --------------------------------------------------------------------------- \43\ For all other fee exemptions and fee waiver eligibility, see 8 CFR 106.2, 106.3. --------------------------------------------------------------------------- Table 5A illustrates the fee exemptions and fee waiver eligibility existing before the effective date of this final rule (``current''). Table 5B lists forms eligible for fee waivers as provided in the proposed rule, additional fee exemptions provided in the proposed rule, and additional fee exemptions provided in this final rule. Table 5C summarizes the available fee exemptions and fee waiver eligibility as of the effective date of this final rule, which includes currently available fee exemptions and the additional fee exemptions provided in the proposed rule. BILLING CODE 9111-97-P [[Page 6216]] [GRAPHIC] [TIFF OMITTED] TR31JA24.010 [[Page 6217]] [GRAPHIC] [TIFF OMITTED] TR31JA24.011 [[Page 6218]] [GRAPHIC] [TIFF OMITTED] TR31JA24.012 [[Page 6219]] [GRAPHIC] [TIFF OMITTED] TR31JA24.013 [[Page 6220]] [GRAPHIC] [TIFF OMITTED] TR31JA24.014 [[Page 6221]] [GRAPHIC] [TIFF OMITTED] TR31JA24.015 [[Page 6222]] [GRAPHIC] [TIFF OMITTED] TR31JA24.016 [[Page 6223]] [GRAPHIC] [TIFF OMITTED] TR31JA24.017 [[Page 6224]] [GRAPHIC] [TIFF OMITTED] TR31JA24.018 [[Page 6225]] [GRAPHIC] [TIFF OMITTED] TR31JA24.019 [[Page 6226]] [GRAPHIC] [TIFF OMITTED] TR31JA24.020 [[Page 6227]] [GRAPHIC] [TIFF OMITTED] TR31JA24.021 [[Page 6228]] [GRAPHIC] [TIFF OMITTED] TR31JA24.022 [[Page 6229]] [GRAPHIC] [TIFF OMITTED] TR31JA24.023 [[Page 6230]] [GRAPHIC] [TIFF OMITTED] TR31JA24.024 [[Page 6231]] [GRAPHIC] [TIFF OMITTED] TR31JA24.025 [[Page 6232]] [GRAPHIC] [TIFF OMITTED] TR31JA24.026 BILLING CODE 9111-97-C c. Codifying Fee Waiver Eligibility Criteria The proposed rule specified that discretionary waiver of fees requires that a waiver based on inability to pay be consistent with the status or benefit sought, including benefits that require demonstration of the applicant's ability to support himself or herself, or individuals who seek immigration status based on a substantial financial investment. See 88 FR 402, 593 (proposed 8 CFR 106.3(a)(1)(ii)). The final rule removes this regulatory text because it is redundant and unnecessary, as the forms eligible for fee waiver are enumerated at 8 CFR 106.3(a)(3). The final rule codifies that a person demonstrates an inability to pay the fee by establishing at least one of the following criteria: --------------------------------------------------------------------------- \98\ These applicants are eligible for naturalization under INA sec. 328; 8 U.S.C. 1439. Most military applicants are eligible for naturalization without lawful permanent residence under INA sec. 329; 8 U.S.C. 1440. --------------------------------------------------------------------------- Receipt of a means-tested benefit as defined in 8 CFR 106.1(f)(3) at the time of filing; Household income at or below 150 percent of the Federal Poverty Guidelines at the time of filing; or Extreme financial hardship due to extraordinary expenses or other circumstances that render the individual unable to pay the fee. See 8 CFR 106.3(a). This change codifies the 2011 Fee Waiver Policy criteria that USCIS may grant a request for fee waiver if the requestor demonstrates an inability to pay based on receipt of a means-tested benefit, household income at or below 150 percent of the FPG, or extreme financial hardship.\99\ While not a change [[Page 6233]] to fee waiver eligibility criteria, DHS believes that codifying these criteria in this final rule will provide consistency and transparency that is responsive to the concerns of many commenters. --------------------------------------------------------------------------- \99\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver Guidelines as Established by the final rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf. --------------------------------------------------------------------------- d. No Mandatory Use of Form I-912 In the proposed rule, 8 CFR 106.3(a)(2) stated, ``Requesting a fee waiver. A person must submit a request for a fee waiver on the form prescribed by USCIS in accordance with the instructions on the form.'' In this final rule, USCIS will maintain the status quo of accepting either Form I-912 or a written request. The final rule will revert to the current effective language at 8 CFR 103.7(c)(2) (Oct. 1, 2020), which states, ``Requesting a fee waiver. To request a fee waiver, a person requesting an immigration benefit must submit a written request for permission to have their request processed without payment of a fee with their benefit request. The request must state the person's belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated. There is no appeal of the denial of a fee waiver request.'' After considering public comments in response to the proposed requirement to submit Form I-912, DHS agrees with multiple points made by commenters. DHS acknowledges that requiring submission of Form I-912 could create an additional burden on certain requestors. See 88 FR 402, 458 (Jan. 4, 2023). Due to the multiple ways of establishing one's inability to pay, see 8 CFR 106.3(a)(1), Form I-912 may be complex for some requestors. DHS also recognizes that some requestors, particularly those who are struggling financially, may face difficulty accessing printing and internet services. DHS believes that flexibility is important in dealing with these populations, and allowing requestors to seek fee waivers via written request will improve access to immigration benefits consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). Because less than one percent of fee waivers are requested by written request instead of Form I-912, continuing to allow written requests will not significantly impact USCIS operations. See 88 FR 402, 458 (Jan. 4, 2023). For these reasons, this final rule maintains the current effective regulation that allows requestors to obtain a fee waiver by written request without filing Form I-912. e. Child's Means-Tested Benefit Is Evidence of Parent's Inability To Pay After considering the comments on the proposed rule DHS has decided to modify the instructions for Form I-912 to accept evidence of receipt of a means-tested benefit by a household child as evidence of the parent's inability to pay because eligibility for these means-tested benefits is dependent on household income. Such benefits would include public housing assistance, Medicaid, SNAP, TANF, and SSI, although DHS is not codifying specific means-tested benefits and will implement those as examples in guidance through the updated Form I-912 instructions. DHS has decided to limit this policy to household spouses and children because other household members' eligibility for certain means-tested benefits may not reflect the financial need of the fee waiver requestor. For example, for SSI purposes an individual's deemed income only includes the income of their spouse and parents with whom they live and their Form I-864 sponsor.\100\ USCIS retains the discretion to determine whether any requestor is eligible for a fee waiver, including whether the means-tested benefit qualifies as provided in 8 CFR 106.1(f) and the Form I-912 instructions. --------------------------------------------------------------------------- \100\ Soc. Sec. Admin., ``Understanding Supplemental Security Income, What Is Income?'' (2023), https://www.ssa.gov/ssi/text-income-ussi.htm (last visited Aug. 21, 2023). --------------------------------------------------------------------------- 10. Procedural Changes To Address Effects of Fee Exemptions and Discounts DHS is making procedural changes in the final rule to address issues that it has experienced with fee-exempt and low fee-filings. DHS appreciates the concerns of commenters and is making changes to address those concerns by lowering many fees below the amount that was proposed, establishing discounts for small employers and nonprofits, and adding multiple fee exemptions. However, to provide the requested changes, DHS must make some adjustments to codified procedural requirements to mitigate some of the unintended consequences of providing limited discounts and free services and some of the actions for which those changes may provide an incentive. a. Duplicate Filings The final rule provides that a duplicate filing that is materially identical to a pending immigration benefit request may be rejected. See 8 CFR 103.2(a)(7)(iv). DHS did not initially propose to prohibit multiple filings of identical requests to deter multiple filings of requests that have no or minimal fee, to reduce backlogs, and to improve processing times. DHS is concerned that the new fee exemptions listed above will lead to the filing of multiple or simultaneous filing of requests that could create jurisdictional conflicts between DHS offices or individual immigration service officers who adjudicate the same types of requests. For example, filing multiple Forms I-290B, Notice of Appeal or Motion, may lead to the filing of multiple motions, multiple appeals, or the simultaneous filing of motions and appeals that would create jurisdictional conflicts between the Administrative Appeals Office (AAO) and other DHS offices. USCIS must intake the request, process or reject the request, and incur the associated costs for each duplicate, multiple or original request even when no fee is required. Multiple filings increase costs to USCIS to reject or process and it may exacerbate backlogs because free services or those with minimal fees do not provide revenue that can be used to fund new processing capacity. Requesters who file multiple requests consume excessive USCIS resources to the detriment of those who file one legitimate request. Although it seems self-evident that USCIS can reject a materially identical filing of the exact same form while a previous request for the same benefit for the same person is still pending, that authority is not codified. Historically, USCIS has accepted duplicate filings of certain forms assuming the fee would cover the duplicate adjudication effort, if any. USCIS experience in administering OAW, U4U, the processes for Cubans, Haitians, Nicaraguans, and Venezuelans, and FRP has found that applicants submit multiple parole requests when they are fee exempt (as they are for OAW), as well as multiple Forms I-134A, Online Request to be a Supporter and Declaration of Financial Support, for the same prospective beneficiary. USCIS also receives duplicate Forms I-730, Refugee/Asylee Relative Petition, and Forms I-918, Petition for U Nonimmigrant Status, which do not have a filing fee. For some of these cases USCIS will adjudicate the initial and duplicate petitions on the merits, increasing costs to USCIS. Others are administratively closed, rejected, or consolidated with the duplicate request. All of these actions take time away from processing other requests. DHS is concerned that the reduction of fees for the additional [[Page 6234]] forms provided in this rule, see Table 5B, will in the same way cause applicants to submit multiples of the same request. This change is necessitated by DHS's decision to provide the additional free services in the fee rule as requested by commenters. As explained above, USCIS experience is that when a full cost recovery fee is charged, duplicate, identical filings are very uncommon, but when the request is free or minimal (such as with the $10 H-1B Registration Fee) they are submitted more frequently. Because this problem results from fee exempt filings, and this rule provides additional fee exemptions as requested by commenters, codifying this restriction as a related change to offset the possible negative effects of the relief is a logical outgrowth of the proposed rule.\101\ USCIS already rejects or administratively closes a request that is materially identical to a request that is being adjudicated because a requester generally cannot receive two or more identical immigration statuses, classifications, visas, or benefits. Individuals generally do not have a substantive right to receive multiple issuances of identical immigration benefits, which by their nature are only of value at first issuance (e.g., two green cards or two travel documents). Thus, DHS will only approve document replacement requests under certain circumstances such as when the document is lost, stolen, or destroyed. In addition, after employees have already processed one request and made a decision, requiring the same or another agency employee to process the same request all over again, while a backlog of requesters remain waiting for attention, is not an efficient use of agency resources, especially when the request has no fee. This minor change to USCIS intake procedures is procedural in nature and does not alter the substantive rights of individuals. DHS is codifying this practice to ameliorate unintended consequences that may logically flow from the actions we are taking to provide more fee relief in this rule. These changes are made in the final rule as a procedural change and thus public comment is not required. See 5 U.S.C. 553(b)(A). Therefore, DHS is adding new 8 CFR 103.2(a)(7)(iv) to provide that a request that is materially identical to a pending request may be rejected. --------------------------------------------------------------------------- \101\ An agency may make changes that follow logically from or reasonably develop the rules the agency proposed. See, Air Transport Ass'n of America v. C.A.B., 732 F.2d 219 (D.C. Cir. 1984). --------------------------------------------------------------------------- b. Revocations The final rule changes to a minor extent the handling of an approved benefit request if an incorrect fee is submitted or if the fee payment instrument is dishonored. See 8 CFR 103.2(a)(7)(ii)(D)(1) and 106.1(c)(2). DHS is authorized to charge fees and inherent in that authority is the authority to enforce the payment of the fee and sanction failure to pay the fee. Payment of a codified fee is a fundamental eligibility criterion for any immigration benefit request. Failure to pay the correct fee by falsifying or misrepresenting eligibility for a fee waiver, exemption, or discount, as well as a dishonored check, stop payment, credit card dispute, or closed account, renders the requester ineligible for the approved benefit. Without enforcement capability, failure to pay fees would have no ramifications and possibly cause considerable damage to the ability of USCIS to fund its operations. Regarding the fee discounts, DHS foresees the situation where a petitioner may submit a lower fee for which they may not qualify and USCIS may not catch that error at intake. For example, in the five fiscal years preceding the FY 2016/2017 fee rule, an average of 231 petitions per year were submitted with a Request for Premium Processing Service, Form I-907, accompanied by a check that was dishonored by the remitting bank. 81 FR 73292, 73314. For fiscal year 2023, as of July 15, 2023, USCIS received between 30 to 43 dishonored payments per month that were associated with a Form I-129 filing, with approximately 10 of those being dishonored for stop-payment. If a benefit approved under these circumstances is not revoked, petitioners would have the incentive to request premium processing services in order to receive a swift approval, knowing they would not face any consequences once the bank dishonors the premium processing payment. Id. Accordingly, balancing the need to provide relief to those requesters who have less ability to pay with the need to fully fund DHS, in the final rule DHS provides that if USCIS accepts a benefit request and determines later that the request was not accompanied by the correct fee, USCIS may deny the request. See 8 CFR 103.2(a)(7)(ii)(D)(1). This change will insulate USCIS against the falsification of fee discount eligibility and the negative revenue impacts that would cause. Further, many of the discounted fee requests will include a request for premium processing and USCIS may approve them in a few days. The alternative to revocation on notice would be for USCIS to hold each benefit request until the financial instrument used to pay the fee has finally cleared or been rejected. In the interest of administrative efficiency and prompt processing of benefit requests, DHS has rejected that alternative. Thus, if the benefit request was approved before USCIS determines the correct fee was not paid, the approval may be revoked upon notice. Id. Sending a Notice of Intent to Revoke (NOIR) will be more effective than billing for the unpaid fee because the requestor may simply ignore the bill while confident that it would cost USCIS more to attempt collection through litigation or other means. In most cases, the NOIR will be cured by payment of the correct amount. The first sentence of proposed 8 CFR 106.1(c)(2), stated, ``If the benefit request was approved, the approval may be revoked upon notice.'' DHS is revising 106.1(c)(2) to clarify that if the benefit request was approved, the approval may be revoked upon notice, rescinded, or canceled subject to statutory and regulatory requirements applicable to the immigration benefit request. 8 CFR 106.1(c)(2). DHS does not in all cases have authority to revoke an approval upon notice. For example, DHS cannot administratively revoke naturalization and must use proceedings in a Federal district court following INA section 340(a), 8 U.S.C. 1451(a). Similarly, cancellation under INA section 342, 8 U.S.C. 1453, is the only route to pursue revocation if a certificate of citizenship or naturalization has already been issued. Accordingly, while these authorities already exist in statute and rulemaking is not required to implement them, in the final rule DHS is revising 8 CFR 106.1(c)(2) to explicitly acknowledge that USCIS' right to revoke an approval upon notice in cases where a fee payment is not honored may be subject to statutory limitations. c. No Initial Field Review for Fee Exempt Form I-290B When an affected party files an appeal of an initial USCIS decision, the USCIS officer who made the initial decision reviews the appeal case and decides whether the case warrants favorable action. See 8 CFR 103.3(a)(2)(ii). During their review, the officer decides whether the case warrants favorable action and if warranted, may reverse the initial unfavorable decision. If the officer determines that favorable action is not warranted, he or she must ``promptly'' forward the appeal to the AAO. See 8 CFR 103.3(a)(2)(iv). DHS did not propose exceptions to 8 CFR [[Page 6235]] 103.3(a)(2)(ii) in the proposed rule. However, as outlined previously in this section, the final rule makes Form I-290B, Notice of Appeal or Motion, fee exempt for several new populations. See Table 48, in Section P. Fee Exemptions of RIA. To avoid fee exempt requests consuming excessive USCIS resources, in the case of a fee waived or fee exempt appeal under 8 CFR 106.3, this rule provides that USCIS may forward the appeal for adjudication without requiring a review by the official who made the unfavorable decision. See 8 CFR 103.3(a)(2)(ii) (providing that USCIS may forward the appeal for adjudication without a review by the official who made the unfavorable decision). As stated previously in this section, free services do not provide revenue that can be used to fund new processing capacity. In addition, making an immigration benefit request free may increase the volume of those filings. The review by the official who made the unfavorable decision is a step in the appeal process that costs USCIS time and money and exacerbates backlogs by requiring officers to review already decided cases. To minimize the workload on USCIS officers who are required to review a denied request after appeal that may be caused by free appeals, DHS is eliminating the regulatory requirement to review appeals before forwarding them to the AAO if the appeal was fee exempt or the fee was waived. Elimination of mandatory field review is likely to decrease appeal processing times. Based on the FY 2017 average time for the AAO to receive an appeal from the field, the elimination of mandatory field review could save up to 113 days in processing time, on average, for cases requiring AAO review. This change will expedite the appeals process and provide the affected party a quicker decision. This change is both a logical outgrowth of the proposed rule and a logical extension of changes made in the final rule at the request of commenters. In addition, affected parties would not incur costs from this change because it is a procedural matter of internal agency management. DHS does not anticipate any cost savings for USCIS from this change, as any savings will be offset by a full appellate review at the AAO. 11. Adjustment of Status (Form I-485) and Family-Based Fees a. Bundling of Fees for Form I-765 and I-131 In this final rule, DHS provides that Form I-485, Application to Register Permanent Residence or Adjust Status, applicants will pay half of the regular Form I-765, Application for Employment Authorization, fee when it is filed with a Form I-485 for which the fee is paid if the adjustment application is pending. See 8 CFR 106.2(a)(44)(i). DHS had proposed requiring the full fee for Form I-765, and Form I-131, Application for Travel Document, when filed with Form I-485. See 88 FR 402, 491. Instead, DHS is setting the filing fee for a Form I-765 filed concurrently with Form I-485 after the effective date at $260. See 8 CFR 106.2(a)(44)(i). Applicants will pay the same fee to renew their Employment Authorization Document (EAD) while their Form I-485 is pending. Id. DHS is unbundling the forms to make USCIS processing times more efficient by eliminating Forms I-765 filed for individuals who are not in need of employment authorization or Forms I-131 for individuals who have no intention of traveling outside the United States. Bundling Forms I-765, I-131, and I-485 transfers the cost of fees not paid by these applicants and results in other applicants paying for forms in a bundle they may not need. Nevertheless, after considering the public comments DHS decided to provide the half price Form I-765 to reduce the burden on low, middle- income, or working-class requesters. DHS acknowledges that many prospective applicants for lawful permanent resident (LPR) status may lack work authorization and therefore struggle to pay the filing fee for Form I-765. An applicant may request a fee waiver for Form I-765. See 8 CFR 106.3(a)(3)(ii)(F). In addition, Forms I-131 and I-765 are fee exempt for certain categories of applicants. See 8 CFR 106.3(b). b. Child Discount for Form I-485 DHS initially proposed that children filing Form I-485 with their parents pay the same fee as adults, $1,540. 88 FR 402, 494 (Jan. 4, 2023). In the final rule, DHS provides that, when filing with parents, children will pay $950 for Form I-485. See 8 CFR 106.2(a)(20)(ii). The current $750 fee went into effect in December 2016 and the new $950 fee is based on the increase in the CPI-U (the amount of inflation) between December 2016 and June 2023, like other inflation adjusted fees in this rule. DHS agrees with many of the points made by commenters, including that the increased fee may be burdensome to filers and affect family reunification, and that there may be a cost basis for distinguishing a Form I-485 filed by a child in conjunction with a parent from other Form I-485s. DHS also understands the social benefit of family immigration and the potential impacts the proposed fee could have on children and families. Therefore, after reviewing the comments, DHS is reducing the fee for applicants under age 14 who file concurrently with a parent to $950. Additionally, children under 14 who have properly filed the Form I-485 with a fee on or after July 30, 2007, and before the effective date of the final rule are not required to pay additional fees for the Form I-765 and Form I-131. See 8 CFR 106.2(a)(7)(iv), (44)(ii)(A). 12. Adoption Forms Changes After considering public comments, in the final rule DHS is providing additional fee exemptions for adoptive families. See 8 CFR 106.2(a)(32) and (48). Specifically, DHS will also provide fee exemptions for: Second extensions. Second change of country requests. Duplicate approval notices for both the orphan and the Hague process. These would all be requested using Supplement 3 for either the orphan (Form I-600/I-600A) or Hague (Form I-800A) process. This is in addition to the exemptions that DHS already provides for the Supplement 3 for first extensions and first change of country requests. Providing a second free extension will provide another 15 months of suitability approval validity at no additional cost to the applicants. DHS recognizes that intercountry adoptions may take an increasing amount of time because of factors outside the control of adoptive families, such as country conditions, and believes this will help reduce related burdens on adoptive families. The final rule fee for the Supplement 3 for the orphan and Hague process will be $455. Petitioners will pay less under the final rule for most scenarios where they request action on a suitability application for the orphan or Hague process. Therefore, DHS believes the fees and new fee exemptions properly align with the needs of the adoption community while not unnecessarily shifting the USCIS adoption program costs by increasing fees for others. 13. Naturalization and Citizenship Fees a. Half Fee for Form N-400 In the proposed rule, applicants with household incomes not more than 200 percent of the Federal Poverty Guidelines (FPG) would be eligible for the reduced fee for Form N-400, Application for Naturalization. See 88 FR 402, 487-488 (Jan. 4, 2023). However, DHS notes that in recent years only one third of new lawful permanent residents (LPR) naturalized within 6 [[Page 6236]] years of obtaining LPR status,\102\ and stakeholders have identified the fee for Form N-400 as a significant obstacle to naturalization.\103\ --------------------------------------------------------------------------- \102\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Trends in Naturalization Rates: FY 2018 Update'' (Sept. 2021), https://www.uscis.gov/sites/default/files/document/reports/Trends_In_Naturalization_Rates_FY18_Update_Report.pdf. \103\ See, e.g., Comment Submitted by CASA, May 19, 2021, https://www.regulations.gov/comment/USCIS-2021-0004-7122. --------------------------------------------------------------------------- In response to public comments and additional stakeholder feedback, and in recognition of the financial gains immigrants obtain with naturalization and the benefits that the United States obtains from new naturalized citizens, this final rule expands eligibility for paying half of the regular fee for Form N-400. An applicant with household income at or below 400 percent of FPG may pay half price for their Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). DHS believes that this change will provide additional relief to longtime residents who struggle to pay naturalization fees without requiring further fee increases for other forms to offset the cost. The increased income threshold for a reduced naturalization fee will also enable the United States to further benefit from newly naturalized citizens, including their greater civic involvement and tax revenues.\104\ --------------------------------------------------------------------------- \104\ See Holly Straut-Eppsteiner, Cong. Research Servs., R43366, ``U.S. Naturalization Policy,'' (May 2021), https://crsreports.congress.gov/product/pdf/R/R43366. --------------------------------------------------------------------------- b. Fee Exemption for Adoption Related Form N-600 The final rule provides that Forms N-600, Application for Certificate of Citizenship and N-600K, Application for Citizenship and Issuance of Certificate under Section 322, are fee exempt for certain adoptees. See 8 CFR 106.2(b)(7)(ii) and (8). Multiple commenters asked USCIS to provide Certificates of Citizenship for all children immigrating based on adoption at no additional cost, as the fee would be an unfair burden on adoptive families. Commenters opposed the increase to the filing fees for adoptive families whose children enter the United States on certain types of visas, reasoning that the certificate should be provided at no additional cost, once all the necessary legal steps have been completed, just as it is provided at no cost for adopted children who enter on a different type of visa for children with final adoptions (IR-3 and IH-3 visas). Commenters indicated that if a Certificate of Citizenship is not obtained at the time of adoption, this becomes a further burden for adoptees. USCIS already provides Certificates of Citizenship to certain adopted children who come to the United States with a final adoption (children with an IR-3 or IH-3 visa) \105\ and meet the conditions of INA sec. 320, 8 U.S.C. 1431, without them having to file a Form N-600 and without paying a fee. USCIS can do this because children with an IR-3 or IH-3 visa generally automatically acquire U.S. citizenship upon their admission to the United States as lawful permanent residents and USCIS can make a citizenship determination based on their underlying immigration petition approval (Form I-600 or Form I-800) without any additional evidence. In addition, these children are in visa categories that are only for adopted children who generally automatically acquire citizenship upon admission, and therefore USCIS can easily identify these children based on their visa category. USCIS is not able to provide Certificates of Citizenship without a Form N-600 for other categories of children, because USCIS cannot make a citizenship determination without additional evidence or cannot identify the children based on their visa category. For example, USCIS cannot issue Certificates of Citizenship without a Form N-600 for children immigrating based on adoption who do not have final adoptions (IR-4s and IH-4s) because they do not automatically acquire citizenship upon their admission and need to submit additional evidence of a full and final adoption for a subsequent citizenship determination. USCIS also cannot automatically issue Certificates of Citizenship to adopted children who are issued IR-2 visas, because stepchildren are also issued IR-2 visas but do not automatically acquire U.S. citizenship upon their admission. USCIS cannot automatically determine which children in these visa categories automatically acquire citizenship and which do not, and thus additional evidence submitted with the N-600 application is required. DHS recognizes the unique vulnerability of adopted children and the overall costs that adoptive families face and wishes to reduce the burden on adoptive families. DHS also notes a passport is available to obtain proof of citizenship without filing Form N-600 for adopted children who automatically acquire or derive citizenship. If adoptive families wish to seek a Certificate of Citizenship, DHS cannot eliminate the requirement to file a Form N-600 for additional categories of adopted children (such as IR-2, IR-4, and IH-4). However, after considering many comments requesting a free N-600 or N-600K for adopted children, DHS will exempt individuals who are the subject of a final adoption for immigration purposes and meet (or met before age 18) the definition of child under section 101(b)(1)(E), (F), or (G) of the INA from Form N-600 filing fees. 8 CFR 106.2(b)(7). This will include adoptees who are over age 18 at the time of filing or adjudication of the N-600, but who met the definition of child under section 101(b)(1)(E), (F), or (G) of the INA before turning 18. DHS will also exempt children who are the subject of a final adoption for immigration purposes and meet the definition of child under section 101(b)(1)(E), (F), or (G) of the Act from Form N-600K filing fees. --------------------------------------------------------------------------- \105\ See U.S. Citizenship & Immigr. Servs, U.S. Dep't of Homeland Security, ``Your New Child's Immigrant Visa,'' https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-to-the-united-states/your-new-childs-immigrant-visa/your-new-childs-immigrant-visa (last updated Dec. 15, 2021), for visa categories for adopted children. --------------------------------------------------------------------------- DHS realizes that this exemption seems to favor adopted over biological children in allowing the filing without a fee. DHS did not take this perception lightly when considering whether adopted children should be able to file a fee exempt Form N-600/600K. In the end, DHS reasoned that many adoptive families have already paid USCIS fees for the Form I-600A/I-600, Form I-800A/I-800, or Form I-130, Petition for Alien Relative, whereas the Form N-600 fee may be the only USCIS fee that families of biological children would pay if they acquired citizenship under INA 301 or 309. DHS also recognizes that families may also choose to apply for a passport to document their child's citizenship in cases where a biological child automatically acquired citizenship. The exemption fits logically within the structure of this rule, and results in a minimal loss of revenue from adoptee/adopted child Form N-600 and N-600K fees. Thus, DHS has decided to respond favorably to the request of many commenters and exempt certain adoptees from the N-600 fee and adopted children from the N-600K fee. 8 CFR 106.2(b)(7) and (8). 14. Additional Changes In the final rule DHS: Deletes proposed 8 CFR 106.3(a)(5), ``Fees under the Freedom of Information Act (FOIA),'' because it is unnecessary. DHS FOIA regulations at 6 CFR 5.11(k) address the waiver of fees under FOIA, 5 U.S.C. 552(a)(4)(A)(iii). Removes the fee exemption for Form I-601, Application for Waiver of Grounds of Inadmissibility, for applicants seeking cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), since they cannot use a [[Page 6237]] waiver of inadmissibility to establish eligibility for this type of relief from removal. Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012); cf. proposed 8 CFR 106.3(b)(8)(i). Therefore, the form is not filed by that population, so the exemptions was not needed making the text superfluous. Codifies that USCIS will provide 30-day advance public notification before a currently acceptable payment method will be changed. 8 CFR 106.1(b). Commenters requested that advance notice be provided when a payment method is changed. As explained more fully in the responses to the comments on the subject, DHS is codifying this procedural requirement. Revises proposed 8 CFR 106.2(d)(2) to provide that all USCIS fees that DHS has the authority to adjust under the INA (those not fixed by statute) may be increased by the rate of inflation by final rule. The change is limited only to clarify that all fees not fixed by statute are increased simultaneously. This change is explained more fully in the response to the public comments on this subject. Amends 8 CFR 204.5(p)(4)(ii) in this final rule by removing the clause ``but not to exceed the period of the alien's authorized admission'' so that the provision once again states that ``Employment authorization under this paragraph may be granted solely in 1-year increments.'' The last clause in Sec. 204.5(p)(4)(ii), which is being removed in this final rule, was added in the 2020 Fee Rule in a revision that was intended to remove ``8 CFR 103.7(b)(1)'' and replace it with ``8 CFR 106.2.'' 85 FR 46922; 84 FR 62364. In neither the 2020 Fee Rule nor in the January 4, 2023, proposed rule did DHS explain why the rule added or retained the last clause, respectively. Although the proposed rule proposed to retain this clause, DHS has determined that the clause is unnecessary and potentially confusing. As explained in the 2016 final rule that created Sec. 204.5(p), the 1- year grant of employment authorization is meant to be a stopgap measure for nonimmigrants facing compelling circumstances and, if granted, provides a period of authorized stay.\106\ --------------------------------------------------------------------------- \106\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers Final Rule, 81 FR 82398, 82424-82425) (Nov. 18, 2016). ---------------------------------------------------------------------------

D. Corrections

DHS notes multiple non-substantive errors in the proposed rule as follows: The preamble to the proposed rule states, ``However, as to Forms N-565 and N-600K, both the current fees and the proposed fees are less than the estimated cost (fee-paying unit cost) for each naturalization form.'' 88 FR 402, 485-486 (Jan. 4, 2023) (emphasis added). ``However, for Forms N-565 and N-600K, the proposed fees are below the estimated cost from the ABC model, thus DHS proposes no discount for online filing of the N-forms.'' Id. at 486 (emphasis added). These statements were incorrect as to the Form N-565, Application for Replacement Naturalization/Citizenship Document, because the proposed fee was higher than its fee-paying unit cost. This error is immaterial to the final rule because the current N-565 fee is being increased by the rate of inflation as previously explained. DHS proposed to remove text from Form I-485, Supplement A, Supplement A to Form I-485, Adjustment of Status Under Section 245(i), regarding the statutory exemptions to the required INA sec. 245(i) statutory sum when the applicant is an unmarried child under 17 or the spouse or the unmarried child under 21 of an individual with lawful immigration status and who is qualified for and has applied for voluntary departure under the family unity program. See 88 FR 402, 494 (Jan. 4, 2023). However, Form I-485, Supplement A, does not contain the language DHS proposed to remove. DHS further stated that it was unnecessary to codify the exemptions from the required INA sec. 245(i) sum into the CFR, but the proposed regulatory text did include the exemptions. The proposed regulatory text for 8 CFR 212.19(e) stated: ``An alien seeking an initial grant of parole or re-parole will be required to submit biometric information. An alien seeking re-parole may be required to submit biometric information.'' The second sentence was included in error and has been removed from the final rule.

E. Status of Previous USCIS Fee Regulations

DHS issued a final rule to adjust the USCIS fee schedule on August 3, 2020, at 85 FR 46788. The rule was scheduled to become effective on October 2, 2020. However, that rule was preliminarily enjoined. Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020); Nw. Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020). Consequently, USCIS has not implemented the fees set out in the 2020 fee rule and is still using the fees set in the 2016 fee rule unless an intervening rulemaking has codified a different fee.\107\ DHS discussed the effects of the injunctions and their relationship to this rule in detail in the proposed rule. See 88 FR 402, 420 (Jan. 4, 2023). This preamble discusses substantive changes that refer to the requirements of the regulations that existed before October 2, 2020.\108\ Likewise, the regulatory impact analysis (RIA) for this proposed rule analyzes the impacts of the changes between the pre-2020 fee rule regulations that DHS is following under the injunctions and those codified in this rule.\109\ --------------------------------------------------------------------------- \107\ See 86 FR 7493 (Jan. 29, 2021) (announcing that DHS is complying with the terms of the orders, not enforcing the regulatory changes set out in the 2020 rule, and accepting fees that were in place before October 2, 2020). \108\ As explained in the proposed rule, the effects of the injunction of the 2020 fee rule, intervening rules, and the codification but ineffectiveness of the 2020 fee rule may result in the standard of citing to the CFR print edition date being inaccurate because title 8 was amended by a number of rules in and since calendar year 2020. 88 FR 421. Therefore, regulations that existed on October 1, 2020 are followed by that date, and provisions that were codified by the 2020 fee rule are followed by the effective date of the 2020 fee rule, October 2, 2020. \109\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, FY 2022-2023 Fee Review Regulatory Impact Analysis (Jan. 4, 2023), https://www.regulations.gov/document/USCIS-2021-0010-0031. ---------------------------------------------------------------------------

F. Severability

In the approach that DHS adopts in this final rule, the new fees allow USCIS to recover full cost given projected volumes and all policy considerations. However, if DHS were prohibited from collecting any new fee for any reason, DHS believes this rule is structured so that a stay, injunction or vacatur of a fee set by this rule could be narrowly tailored to remedy the specific harm that a court may determine exists from the specific fee or fees challenged. USCIS would be able to continue operations, perhaps at a reduced level or by shifting resources in the absence of the fee until DHS is able to conduct new rulemaking to re-set fees and correct the deficiencies that resulted in the court order. Operating without one or a few of the new fees would be preferable to an invalidation of all the new fees, which would great disruption and deterioration of USCIS operations. DHS believes that the provisions in this rule can function independently of each other. For example, the H-1B Registration Fee, Asylum Program Fee, and genealogy fees could be stalled while a new rule is undertaken without affecting all other fees generally. This would reduce USCIS projected revenue, carryover balances and require realignment of the USCIS budget and a reassessment of spending priorities. See [[Page 6238]] 88 FR 402, 517 (Jan. 4, 2023). However, USCIS constantly assesses its budget and spending to avoid a deterioration in service considering its fees have not been increased since 2016. Additionally, the statutory authority for this rule provides 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'' and does not require that DHS must recover full costs. INA section 286(m), 8 U.S.C. 1356(m). Therefore, to protect the goals for which this rule is being proposed, DHS is codifying our intent that the provisions be severable so that, if necessary, the regulations overall can continue to function should a particular provision be stricken. See 8 CFR 106.6.

1. Uniting for Ukraine (U4U)

On April 21, 2022, the United States announced a key step toward fulfilling President Biden's commitment to welcome Ukrainians fleeing Russia's invasion.\111\ Uniting for Ukraine (U4U) provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily for a 2-year period of parole. Ukrainians participating in U4U must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States. --------------------------------------------------------------------------- \111\ See USCIS, Uniting for Ukraine, at https://www.uscis.gov/ukraine (last visited Aug. 24, 2023). ---------------------------------------------------------------------------

2. Operation Allies Welcome

On August 29, 2021, President Biden directed DHS to lead and coordinate ongoing efforts across the Federal Government to support vulnerable Afghans, including those who worked alongside the U.S. government in Afghanistan for the past 2 decades, as they safely resettle in the United States. USCIS is and has been responsible for large portions of the implementation of Operation Allies Welcome (OAW).\112\ --------------------------------------------------------------------------- \112\ See U.S. Dep't of Homeland Sec, Operation Allies Welcome, https://www.dhs.gov/allieswelcome (last updated Nov. 27, 2023). ---------------------------------------------------------------------------

3. Processes for Cubans, Haitians, Nicaraguans, and Venezuelans

Over the last year, DHS has implemented processes through which nationals of designated countries and their immediate family members may request to come to the United States in a safe and orderly way. DHS used emergency processing when implementing Uniting for Ukraine as well as new parole processes for certain Cubans,\113\ Haitians,\114\ Nicaraguans,\115\ and Venezuelans.\116\ Under these processes, qualified beneficiaries who are outside the United States and lack U.S. entry documents may be considered, on a case-by-case basis, for advanced authorization to travel and a temporary period of parole for urgent humanitarian reasons or significant public benefit. --------------------------------------------------------------------------- \113\ 88 FR 1266 (Jan. 9, 2023); see also 88 FR 26329 (Apr. 28, 2023). \114\ 88 FR 1243 (Jan. 9, 2023); see also 26 FR 327 (Apr. 28, 2023). \115\ 88 FR 1255 (Jan. 9, 2023). \116\ 87 FR 63507 (Oct. 19, 2023); see also 88 FR 1279 (Jan. 9, 2023). ---------------------------------------------------------------------------

4. Family Reunification Parole Processes

DHS also used emergency processing when establishing new family reunification parole (FRP) processes for certain Colombians,\117\ Ecuadorians,\118\ Salvadorans,\119\ Guatemalans,\120\ and Hondurans \121\ and implementing procedural changes to the previously established Cuban \122\ and Haitian \123\ Family Reunification Parole processes. These FRP processes are available to certain petitioners who filed an approved Form I-130, Petition for Alien Relative, on behalf of a principal beneficiary who is a national of Colombia, Cuba, El Salvador, Guatemala, Haiti, or Honduras, and their immediate family members. These processes allow an eligible beneficiary to be considered, on a case-by-case basis, for advanced authorization to travel and a temporary period of parole for urgent humanitarian reasons or significant public benefit. --------------------------------------------------------------------------- \117\ 88 FR 43591 (July 10, 2023). \118\ 88 FR 78762 (Nov. 16, 2023). \119\ 88 FR 43611 (July 10, 2023). \120\ 88 FR 43581 (July 10, 2023). \121\ 88 FR 43601 (July 10, 2023). \122\ 88 FR 54639 (Aug. 11, 2023). \123\ 88 FR 54635 (Aug. 11, 2023). ---------------------------------------------------------------------------

B. Effects of Temporary or Discretionary Programs and Processes

As stated elsewhere, and in the proposed rule, Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) country designations are both administrative exercises of discretion that may be granted on a case-by-case basis for certain periods. See 88 FR 402, 447 (Jan. 4, 2023). DACA grants are subject to intermittent renewal, extension, or termination at DHS's discretion. TPS country designations must be periodically reviewed and are subject to termination if the conditions for the designation no longer exist. Likewise, OAW, U4U, and processes for Cubans, Haitians, Nicaraguans, and Venezuelans are temporary processes established to address exigent circumstances. The FRP processes require that the petitioner first receive an invitation to be able to initiate the process. The invitation requirement allows DHS to adjust the number of invitations issued based on the resources available to process requests and to achieve desired policy objectives. Given that these processes are temporary by definition or may be paused at the discretion of DHS, USCIS excluded the associated costs and workload from the fee review and did not propose to allocate overhead and other fixed costs to these workloads.\124\ [[Page 6239]] Excluding these initiatives or processes that are temporary from the fee review mitigates an unnecessary revenue risk, by ensuring that USCIS will have enough revenue to recover full cost regardless of DHS's discretionary decision to continue or terminate these initiatives. This allows DHS to maintain the integrity of its activity-based cost (ABC) model, ensure recovery of full costs, and mitigate revenue risk from unreliable sources. While the operational costs of adjudicating requests associated with these policies are carefully considered on a day-to-day basis, the proposed rule and this final rule exclude from the ABC model the costs and revenue associated with these processes. --------------------------------------------------------------------------- \124\ USCIS has considered the number of immigration benefit requests it will receive from noncitizens from Afghanistan who will stay permanently and safely resettle in the United States over the fee review period. ---------------------------------------------------------------------------

C. Lawful Pathways Rule

DHS and the U.S. Department of Justice (DOJ) recently published a final rule, Circumvention of Lawful Pathways. See 88 FR 31314 (May 16, 2023). Under the final rule, certain noncitizens who cross the southwest land border or adjacent coastal borders without authorization, and without having availed themselves of existing lawful, safe, and orderly pathways are presumed ineligible for asylum unless they meet certain limited exceptions. See id at 31449-52. The rule is projected to increase USCIS costs for operating the asylum program. See 88 FR 11704 (Feb. 23, 2023). While the costs of this rule were not considered in the proposed rule, DHS believes that USCIS' budget may be sufficient to cover these costs in the near term. Much of the cost for the Circumvention of Lawful Pathways rule will occur beyond the 2-year study cycle for the fee revenue required to be generated by this rule. Future fee rules will use more recent information and estimates, when available.

D. Premium Processing--Emergency Stopgap USCIS Stabilization Act

As explained in the proposed rule, on October 1, 2020, the Continuing Appropriations Act, 2021, and Other Extensions Act (Continuing Appropriations Act) was signed into law. Public Law 116-159 (Oct. 1, 2020). The Continuing Appropriations Act included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), which allows USCIS to establish and collect additional premium processing fees and to use premium processing funds for expanded purposes. See Public Law 116-159, secs. 4101 and 4102, 134 Stat. 739 (Oct. 1, 2020); 8 U.S.C. 1356(u). Then, on March 30, 2022, DHS published a final rule, Implementation of the Emergency Stopgap USCIS Stabilization Act, implementing part of the authority provided under the USCIS Stabilization Act to offer premium processing for those benefit requests made eligible for premium processing by section 4102(b) of that law. See 87 FR 18227 (premium processing rule). The proposed rule did not include changes directly resulting from the USCIS Stabilization Act or premium processing rule and stated that DHS will consider including premium processing revenue and costs in the final rule. See 88 FR 402, 419 (Jan. 4, 2023). In this final rule, DHS has transferred $129.8 million in costs to premium processing because of premium processing revenue projections. See section II.B of this preamble.

E. Premium Processing Inflation Adjustment

On December 28, 2023, DHS published a final rule, Adjustment to Premium Processing Fees, effective February 26, 2024, that increased premium processing fees charged by USCIS to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers (CPI-U). 88 FR 89539 (Dec. 28, 2023). The adjustment increases premium processing fees from $1,500 to $1,685, from $1,750 to $1,965, and from $2,500 to $2,805. 8 CFR 106.4. The total projected revenue to be collected from the new premium processing fees established by the final rule premium processing rule is too attenuated to be considered for this rule without placing USCIS at risk of revenue shortfalls if that revenue did not materialize. However, as noted earlier, this final fee rule transfers additional costs to premium processing revenue. Premium revenue will be considered in future fee studies.

F. EB-5 Reform and Integrity Act of 2022 and Related Rules

As stated in the proposed rule, on March 15, 2022, the President signed the EB-5 Reform and Integrity Act of 2022, which repealed the Regional Center Pilot Program and authorized a new Regional Center Program.\125\ See 88 FR 402, 420 (Jan. 4, 2023). (EB-5 stands for Employment-Based Immigrant Visa, Fifth Preference.) The EB-5 Reform and Integrity Act of 2022 requires DHS to conduct a fee study not later than 1 year after the date of the enactment of this Act and, not later than 60 days after the completion of the study, set fees for EB-5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and complete the adjudications within certain time frames. See Public Law 117-103, sec. 106(b). DHS has begun the fee study required by the EB-5 Reform and Integrity Act of 2022 and has initiated a working group to begin drafting the rule. However, that effort is still in its early stages. How the EB-5 Reform and Integrity Act of 2022 and the fee study it requires relate to this rule and the fees it sets are explained in section IV.G.2.b. of this preamble in responses to comments on those fees and related polices. --------------------------------------------------------------------------- \125\ Div. BB of the Consolidated Appropriations Act, 2022, Public Law 117-103. ---------------------------------------------------------------------------

G. Modernizing H-1B Requirements, Providing Flexibility in the F-1

Program, and Program Improvements Affecting Other Nonimmigrant Workers On October 23, 2023, DHS proposed to amend its regulations governing H-1B specialty occupation workers. 88 FR 72870. The rule proposed to modernize and improve the efficiency of the H-1B program by amending several requirements for the subject nonimmigrant classifications, including to improve the integrity of the H-1B program. Id. Specifically, that rule proposes that USCIS would select registrations by unique beneficiary rather than by individual registration to reduce the potential for gaming the H-1B cap system and make it more likely that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. If that proposal is finalized as proposed, the actual number of H-1B Registrations may not be as high as projected in this rule. For example, the proposed rule forecasted 273,990 H-1B registrations. 88 FR 402, 437 (Jan. 4, 2023). The forecast for the proposed rule was similar to the 274,237 total registrations in the FY 2021 cap year.\126\ This final rule revises the H-1B registrations forecast to 424,400 based on more recent data, such as the total registrations for the FY 2023 cap year. The effect of modernizing H-1B requirements may result in a different H-1B registration volume than we forecast here. If that occurs, DHS will address the resulting revenue shortfall in a future fee rule, or in a separate rulemaking that directly addresses the H-1B Registration Fee and the changes made by the Modernizing rule, the H-1B registration process, and the need to recover the costs of USCIS. --------------------------------------------------------------------------- \126\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, H-1B Electronic Registration Process, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process. --------------------------------------------------------------------------- [[Page 6240]]

H. Citizenship and Naturalization and Other Related Flexibilities

DHS expects to soon publish a notice that will propose amendments of its regulations governing citizenship and naturalization.\127\ The notice will propose changes to naturalization eligibility regulations and other immigration benefit provisions that affect naturalization and acquisition of citizenship, remove outdated provisions, and amend provisions that are inconsistent with intervening laws. DHS has not incorporated any changes in this final rule because the Citizenship and Naturalization notice has not yet been adopted, and whether USCIS needs to update form fees due to the changes would not be determined until after implementation. Future fee rules will consider the effects of the changes if the notice becomes final. --------------------------------------------------------------------------- \127\ See Office of Info. and Regulatory Affairs, Office of Mgmt. and Budget, Exec. Office of the President, ``Fall 2023 Unified Agenda of Planned Regulatory Actions,'' RIN 1615-AC80, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1615-AC80 (last viewed Jan. 16, 2024). ---------------------------------------------------------------------------

I. 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1

Nonimmigrant Workers (Pub. L. 114-113 Fees) Congress requires the submission of an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions in section 402(g) of Div. O of the Consolidated Appropriations Act, 2016 (Pub. L.114-113) enacted December 18, 2015.\128\ DHS proposed to republish the regulatory text that existed immediately before the 2020 fee rule. See 88 FR 402, 516. DHS did not receive any comments on this proposal. As such, this final rule republishes the proposed text for these fees. See 8 CFR 106.2(c)(8) and (9). However, DHS is proposing to address the 9-11 Response and Biometric Entry-Exit Fees for H-1B and L- 1 Nonimmigrant Workers language in a separate rulemaking in the future.\129\ --------------------------------------------------------------------------- \128\ Section 402(g) of Div. O of Public Law 114-113 added a new section 411 to the Air Transportation Safety and System Stabilization Act, 49 U.S.C. 40101 note. Section 411 provided that the fees collected thereunder would be divided 50/50 between general Treasury and a new ``9-11 Response and Biometric Exit Account,'' until deposits into the latter amounted to $1 billion, at which point further collections would go only to general Treasury. Deposits into the 9-11 account are available to DHS for a biometric entry-exit screening system as described in 8 U.S.C. 1365b. \129\ See Department of Homeland Security, Fall 2023 Regulatory Agenda, 9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1 Visas, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=1651-AB48 (last visited Dec. 20, 2023). ---------------------------------------------------------------------------

A. Summary of Comments on the Proposed Rule

DHS provided a 65-day comment period following publication of the proposed rule. DHS received 7,973 public comment submissions in docket USCIS-2021-0010 in response to the proposed rule. Of the 7,973 submissions, 5,417 were unique submissions, 2,393 were form letter copies, 113 were duplicate submissions, 45 were not germane to the rule, and 5 contained comments and requests that were entirely outside of the scope of the rule. Most submissions \130\ were anonymous or from individuals, schools or universities, advocacy groups, lawyers or law firms, legal assistance providers, community or social organizations, businesses, State and Federal elected officials, research organizations, religious organizations, local governments or tribes, unions, and business or trade associations. Some commenters expressed total support for the proposed rule or supported one or more specific provisions of the proposed rule without recommending changes. Most commenters opposed the rule and expressed unqualified opposition or opposition to one or more provisions without recommending changes. Many commenters provided mixed comments of both support for and opposition to various provisions of the proposed rule, provided general support with suggested revisions, provided general opposition with suggested revisions, or were unclear on whether the comment supported or opposed the proposed rule. --------------------------------------------------------------------------- \130\ The term ``submission'' refers to an entire submission letter submitted by a commenter. The term ``comments'' refers to parts or excerpts of the submission based on subject matter. --------------------------------------------------------------------------- DHS reviewed all the public comments received in response to the proposed rule and addressed relevant comments in this final rule, grouped by subject area. DHS also received several comments on subjects unrelated to the proposed fees that are outside of the proposed rule's scope. DHS has not individually responded to these comments but has summarized out of scope comments and provided a general response in Section IV.I of this preamble.

1. General Support for the Proposed Rule

Comment: Several commenters expressed general support for the proposed rule. Some commenters expressed general support for the rule without providing additional rationale. Commenters expressed support for the rule reasoning that the fee adjustments would: Reduce processing times, increase staff, and reduce the backlog or wait times for decisions. Decrease fraud. Reflect USCIS' adjudication burden and need for sufficient financing to support effective processing of its vital services. Reduce USCIS' funding and operational issues that are caused by its status as a fee-funded agency. A commenter urged USCIS to move forward with the proposed rule and respond forcefully to organizations that fail to acknowledge USCIS management has improved efficiencies despite lacking sufficient funds to sustain operations. The commenter stated that USCIS is capable of increasing efficiencies in a short period but said that it needs more congressional funding. Another commenter suggested that USCIS further increase its fees. Response: DHS appreciates these commenters' support for the proposed rule and did not make any changes in this final rule based on them.

2. General Opposition to the Proposed Rule

Many commenters stated their general opposition to the proposed fees, the magnitude of the fee adjustments, charging fees in general, and specific proposed policy changes in the proposed rule. DHS summarizes and responds to these public comments in the following sections: a. Immigration Policy Concerns Comment: Many commenters opposed the proposed fee adjustments based on the burdens they would create. Commenters stated that the proposed fees would: Be a financial obstacle or prohibitively expensive, discourage people from immigrating to the United States, and be detrimental for the United States and immigrant communities. Encourage illegal immigration by creating significant barriers to and discouraging legal immigration. Strain resources with which immigrants can integrate into the United States. Response: DHS's fee rule is not intended to reduce or limit immigration. These fee adjustments reflect DHS's best effort to balance access, affordability, equity, and benefits to the national interest while providing USCIS with the funding necessary to maintain adequate [[Page 6241]] services. Recognizing that fees impose a burden on fee-paying requestors and their communities, DHS is shifting its fee-setting approach away from sole emphasis on the beneficiary-pays principle toward the historical balance between the beneficiary-pays and ability- to-pay principles. See 88 FR 402, 424-26 (Jan. 4, 2023). Nonetheless, USCIS filing fees are necessary to provide the resources required to perform the work associated with such filings. When fees do not fully recover costs, USCIS cannot maintain sufficient capacity to process requests. Inadequate fees may cause significant delays in immigration request processing which can burden requestors, as well as their families, communities, and employers. In this final rule, USCIS has made multiple adjustments to its budget to limit the extent of fee increases. Ordinarily, any decrease in the fee adjustments would require a decrease in USCIS' budget and a commensurate decrease in service levels. Rather than decrease service levels, in this final rule USCIS has shifted a portion of its budget from IEFA non-premium revenue to the IEFA premium processing revenue, in addition to current levels of premium processing in the overall USCIS budget. USCIS has also revised staffing estimates based on improved efficiency measures, which allowed a further reduction to the budget. Through these adjustments, DHS seeks to recover the full cost of the services provided by USCIS. This final rule limits fee increases for several forms, including the Form I-130, Petition for Alien Relative, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-765, Application for Employment Authorization, to an inflation-based increase. See Table 1. For reasons explained earlier in section II.C. of this preamble, the final rule also creates lower fees for certain small employers and nonprofits. Businesses with 25 or fewer employees will pay a $300 Asylum Program Fee instead of the $600 fee that larger businesses will pay, and nonprofits will pay no Asylum Program Fee. See 8 CFR 106.2(c)(13). In addition, many categories of Form I-129, Petition for Nonimmigrant Worker, now allow for half-price fees for businesses with 25 or fewer employees and nonprofits. See 8 CFR 106.2(a)(3)(ix); Table 1. The final rule also expands the number of forms that qualify for fee exemptions. See 8 CFR 106.3(b); Table 5B. Regarding integration concerns, the final rule increases the household income threshold to 400 percent of the FPG to enable more naturalization applicants to qualify for a reduced fee for Form N-400, Application for Naturalization. See 8 CFR 106.2(b)(3)(ii). These changes do not represent a change in fee policy or requirements. They are a continuation of the discretion that DHS typically exercises in setting USCIS fees. See, e.g., 81 FR 73292, 73296-73297 (Oct. 24, 2016); 75 FR 58962, 58969-58970 (Sept. 24, 2010). In addition to these changes in the final rule, DHS reiterates the steps it has taken to mitigate the burden of fee increases on fee- paying requestors. DHS has maintained some current fees and limited the increases for many others to levels at or below inflation. See Table 1. DHS includes a separate Asylum Program Fee to mitigate the scope of fee increases for individual requestors. See 8 CFR 106.2(c)(13); see also 88 FR 402, 451-454 (Jan. 4, 2023). For humanitarian immigration categories, DHS has expanded the availability of fee exemptions and waivers to ensure that the most vulnerable applicants are able to access protection-based relief. See 8 CFR 106.3; Table 5B; preamble sections IV.E. and IV.F. DHS is mindful that departures from the standard USCIS fee-setting methodology result in lower fees for some and higher fees for others. However, it believes that these fees balance access, affordability, equity, and benefits to the national interest while providing USCIS adequate funding. DHS disagrees that the proposed fee increases are likely to incentivize irregular migration because the financial costs and other risks of irregular migration tend to be higher than USCIS fees,\131\ and the economic benefits of lawful migration outweigh USCIS fees.\132\ DHS believes that the consequences of not pursuing full cost recovery (processing delays, backlogs, and otherwise inadequate services) may be more likely to discourage lawful migration, since wait times may tend to have a stronger influence than financial costs on one's decision to pursue unlawful pathways of migration.\133\ DHS further notes that it focuses fee exemptions and waivers on humanitarian and protection-based immigration forms, where requestors are at a greater risk of pursuing irregular forms of migration. See 8 CFR 106.3; Table 5B. --------------------------------------------------------------------------- \131\ See, e.g., U.N. Office on Drugs & Crime, ``Smuggling of Migrants: The Harsh Search for a Better Life,'' https:// www.unodc.org/toc/en/crimes/migrant- smuggling.html#:~:text=The%20fees%20charged%20for%20smuggling,pay%20a s%20much%20as%20%2410%2C000. (last visited Sept. 5, 2023) (noting smuggling fees ranging from $2,000-$10,000 depending on point of origin). \132\ See, e.g., California Immigrant Data Portal, ``Median Hourly Wage,'' available at https://immigrantdataca.org/indicators/median-hourly-wage (last visited Sept. 7, 2023) (noting that ``the median hourly wage for naturalized immigrants was $24, compared to $19 for lawful residents, and $13 for undocumented immigrants''). \133\ See, e.g., David J. Bier, ```Why Don't They Just Get in Line?' Barriers to Legal Immigration,'' Testimony, CATO Institute, Apr. 28, 2021, https://www.cato.org/testimony/why-dont-they-just-get-line-barriers-legal-immigration (identifying wait times as a primary driver of unlawful migration). --------------------------------------------------------------------------- Comment: Other commenters stated that the proposed rule would: Undermine U.S. national values. Be anti-immigrant, ``tantamount to a threat to American democracy,'' unfair, or unethical. Unduly place the burden of funding USCIS on immigrants. Isolate the United States internationally, reflect poorly on Americans, harm U.S. relations with other countries, and lead to other countries increasing their fees. Response: DHS strongly disagrees that this fee rule represents a departure from U.S. values or is anti-immigrant, unfair, or unethical. DHS recognizes that increased fees create burdens for fee-paying requestors and their communities. However, it would not be more fair, ethical, pro-immigrant, or consistent with U.S. values to maintain current fee levels if this results in decreases in USCIS productivity. Because DHS does not receive congressional appropriations for the great majority of its operations, DHS must charge fees for the services it provides to ensure that those seeking to live and work in the United States can efficiently receive their benefits. Since 1990, the INA has specified that the government may set immigration adjudication and naturalization fees at a level that will ensure full cost recovery,\134\ and past fee rules have consistently followed this approach.\135\ By shifting its fee-setting approach away from the beneficiary-pays principle toward the historical balance of ability-to- pay and beneficiary-pays principles, DHS has sought to reduce barriers and promote accessibility to immigration benefits. See 88 FR 402, 424- 25 (Jan. 4, 2023). As noted in the prior response, DHS has limited the increases in many forms and instituted new fee waivers and exemptions to reduce financial barriers to U.S. immigration benefits. --------------------------------------------------------------------------- \134\ See Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1991, Public Law 101-515, 104 Stat 2101 (1990). \135\ See 72 FR 4888, 4896 (Feb. 1, 2007); 75 FR 33446, 33472 (June 11, 2010); 81 FR 26904, 26905 (May 4, 2016); 88 FR 62280, 62282 (Nov. 14, 2019). --------------------------------------------------------------------------- DHS does not believe that this final fee schedule poses significant consequences for foreign relations. Commenters failed to cite any examples of other countries raising immigration fees or otherwise retaliating in response [[Page 6242]] to fee increases by USCIS or the former Immigration and Naturalization Services (INS). DHS notes that other countries regularly charge fees for visas and other immigration benefits,\136\ and only one foreign government entity submitted a comment on the proposed rule.\137\ Unlike nonimmigrant visa fees set by the U.S. Department of State (DOS), the principle of reciprocity does not factor into USCIS fees. Cf. INA sec. 281, 8 U.S.C. 1351; 9 FAM 403.8. --------------------------------------------------------------------------- \136\ See Duncan Madden, ``The World's Most Expensive Passports and Visas,'' Forbes, July 10, 2023, available at https://www.forbes.com/sites/duncanmadden/2023/07/10/travel-expenses-the-cheapest-and-most-expensive-passports-and-visas/?sh=5e5de6ff6f1e (last visited Sept. 5, 2023). \137\ See Regulations.gov, Comment Submitted by ARTS, https://www.regulations.gov/comment/USCIS-2021-0010-7354. --------------------------------------------------------------------------- Comment: A commenter stated USCIS should terminate ``unlawful'' special parole programs, as the creation of these unauthorized and unappropriated programs diverts agency resources from legitimate visa programs, resulting in fee increases and increased delays for many benefit requestors. The commenter stated that DHS should return to interpreting parole authority on a case-by-case basis to enhance DHS's ability to focus its resources on processing immigration benefits Congress has authorized and increase access to such benefits without unreasonable delays. Response: DHS disagrees that the parole programs identified by this commenter are unlawful and believes that the legal authority for those programs has been adequately presented in their respective rules.\138\ As stated earlier, the special parole processes mentioned by the commenter are necessary to address urgent humanitarian events and aid in the United States' ongoing efforts to engage hemispheric partners to increase their efforts to collaboratively manage and reduce irregular migration that could have worsened without timely action by the United States. See, e.g., 88 FR 1243 (Jan. 9, 2023); see also 88 FR 26327 (Apr. 28, 2023). DHS acknowledges that, apart from International Entrepreneur Parole, the special parole processes require the use of limited USCIS budget resources. However, the case-by-case parole into the United States of noncitizens under special parole processes aids in the United States' effort to deter irregular migration from those countries by providing lawful, safe, orderly pathways to travel to the United States. Id. Also, unlike many noncitizens who irregularly migrate, noncitizens who are paroled into the United States through these processes are immediately eligible to apply for employment authorization throughout the duration of their parole period, allowing them to support themselves and contribute to the U.S. economy through labor, taxes, consumption of goods, and payment of rent and utilities in their new U.S. communities.\139\ --------------------------------------------------------------------------- \138\ See 88 FR 21694 (Apr. 11, 2023); 88 FR 1266 (Jan. 9, 2023); 88 FR 1243 (Jan. 9, 2023); 88 FR 1255 (Jan. 9, 2023); 88 FR 1279 (Jan. 9, 2023). \139\ See generally, e.g., National Academies of Sciences, Engineering, and Medicine, ``The Economic and Fiscal Consequences of Immigration,'' (2017), https://nap.nationalacademies.org/catalog/23550/the-economic-and-fiscal-consequences-of-immigration; Chair Cecilia Rouse et al., The White House Blog: ``The Economic Benefits of Extending Permanent Legal Status to Unauthorized Immigrants,'' (Sept. 17, 2021) https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/. --------------------------------------------------------------------------- As stated in the proposed rule, DHS excluded Form I-941, Application for Entrepreneur Parole, from this rule. See 88 FR 402, 424 n.47. The fee for Form I-941 will remain at $1,200, the level previously set to recover its anticipated processing costs to DHS and will not impact fees or processing times for other immigration benefit requests. 82 FR 5238, 5280 (Jan. 17, 2017). b. Impact on Specific Benefit Categories Comment: Multiple commenters stated that the proposed fees would be discriminatory, disproportionately burdensome, or otherwise harmful toward the following immigration categories: Undocumented individuals. Applicants pursuing legal residency and citizenship. Nonimmigrants such as foreign artists. Family-based immigration. Commenters stated that the proposed rules would be a hindrance to family unity, and would have a large impact on families and U.S. citizens sponsoring immigrant relatives, children, partners, fianc[eacute]es, or spouses. Vulnerable and humanitarian immigrants, including refugees, survivors, and victims of crime escaping violence. Response: DHS recognizes the burden that immigration fees may pose for certain requestors. Nonetheless, USCIS filing fees are necessary to provide the resources required to do the work associated with such filings. When fees do not fully recover costs USCIS cannot maintain sufficient capacity to process requests. Inadequate fees may cause significant delays or other lapses in immigration request processing, which can result in additional burdens to requestors. In general, the fees in this final rule are set to ensure full cost recovery for USCIS. With limited exceptions, as noted in the proposed rule and this final rule, DHS establishes its fees at the level estimated to represent the full cost of providing adjudication and naturalization services, including the cost of relevant overhead and similar services provided at no or reduced charge to asylum applicants or other immigrants. This approach is consistent with DHS's legal authorities. See INA sec. 286(m), 8 U.S.C. 1356(m). In this final rule, USCIS reduced the fee review budget, as explained earlier in section II.C of this preamble. In certain instances, DHS establishes fees that do not represent the estimated full cost of adjudication in the proposed rule. See 88 FR 402, 450-451. In many cases, this is a result of DHS's refocus on balancing the beneficiary-pays principle with the ability-to-pay principle, whereby DHS has reduced or limited fee increases where a full cost increase would be particularly burdensome for requestors. By limiting many of the final fees to an inflation-based adjustment of the current fee, DHS addresses some of these comments. Regarding individuals seeking to naturalize or obtain proof of citizenship, DHS has maintained the fees for common forms like Form N- 400, Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), and Form N-600, Application for Certificate of Citizenship, at levels below full cost recovery (See Table 1; 88 FR 402, 486 (Table 14), Jan. 4, 2023), and expanded the availability of reduced fee N-400s, see 8 CFR 106.2(b)(3)(ii). Regarding family-based residency, DHS has limited the increase for common family-based forms such as Form I-130 and Forms I-129F, Petition for Alien Fianc[eacute](e), to levels at or below inflation. See Table

1. Regarding artists and other employment-based nonimmigrants, the

final rule limits the fee increase for Form I-129s to a level below inflation for many small-employer and nonprofit petitioners, see Table 1, eliminates the Asylum Program fee for nonprofit petitioners, and halves the Asylum Program fee for small-employer petitioners, see 8 CFR 106.2(c)(13). In addition, this final rule expands fee exemptions and fee waivers for certain humanitarian categories including survivors, victims of crime, and refugees. See 8 CFR 106.3; Table 5B; see also 88 FR 402, 459-482 (Jan. 4, 2023). The new exemptions created by this rule include exemptions for T and U nonimmigrants, VAWA self-petitioners, Special Immigrant Juveniles (SIJs), and other benefit requestors. 8 CFR 106.3(b). Also, the Director of USCIS may, [[Page 6243]] consistent with applicable law, authorize additional fee exemptions when in the public interest, such as when necessary to address incidents such as an earthquake, hurricane, or other natural disasters affecting localized populations. See 8 CFR 106.3(c). c. Impact on Specific Demographic Characteristics Comment: Several commenters wrote that certain proposed fees are discriminatory, disproportionately burdensome, or otherwise harmful to people based on: Race, ethnicity, skin color, national origin, country of birth, or country of citizenship. Gender. Sexual orientation or gender identity. Age. Disability. Language. Response: DHS did not design this fee schedule with any intent to deter requests from or discriminate against any group of people. The final fees are set to ensure full cost recovery while accounting for filers' ability to pay, irrespective of their membership in one of the groups identified by the commenters. As stated in the proposed rule, where DHS has determined that a fee in this rule may inequitably impact those who may be less able to afford it, DHS sets the fees below the ABC model output. See 88 FR 402, 426 (Jan. 4, 2023). In addition, we codify the fee waiver eligibility guidance that took effect in 2010 and expand fee exemptions for vulnerable or low-income populations, as described elsewhere in this preamble. Comment: Some commenters wrote that the proposed fees would be particularly burdensome for low-income or economically disadvantaged people. Several commenters stated that, due to low wages of many immigrants, higher fees would create a high burden for benefit requestors and contribute to their economic insecurity, forcing them to choose between applications and other necessities. Commenters stated that the proposed fees would create hardship for some applicants and their families, threaten immigrants' ability to pay for rent, food, and necessities, and potentially cause some to go into debt. Commenters also stated that, to pay fees, low-income applicants may become victims of predatory loan schemes that offer high interest loans. An advocacy group expressed concern that increased fees could cause immigrants to remain or become uninsured. Response: DHS is aware of the potential impact of fee increases on low-income and economically disadvantaged individuals and is sympathetic to these concerns. As discussed in the proposed rule and consistent with past practice, USCIS has limited fee adjustments for certain benefit requests. DHS recognizes that immigration application fees may be burdensome for these filers, and that those who choose to finance application fees through debt may be responsible for additional interest. With these types of concerns in mind, DHS has shifted its fee-setting approach away from the beneficiary-pays principle that guided the 2019/2020 fee rule and more toward the ability-to-pay principle. See 88 FR 402, 424-26 (Jan. 4, 2023). To keep many common forms affordable, DHS has kept their fees at or below full cost recovery or the rate of inflation. See Table 1. The rule codifies USCIS' guidance on fee waivers for individuals who are unable to pay. See 8 CFR 106.3(a). It also expands the number of forms that are eligible for fee exemptions and waivers, see Table 5B, and includes several policy adjustments designed to make fee waivers more readily accessible. See 88 FR 402, 458 (Jan. 4, 2023). For naturalization applicants who do not meet the requirements for a full fee waiver, DHS has made N-400 fee reductions more available by increasing the income threshold to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). DHS focuses fee exemptions on vulnerable populations and waiver availability on those with an inability to pay. See 8 CFR 106.3; Table 5B. DHS recognizes that that there are many forms for which fee exemptions or fee waivers are not available but notes that it is limited by congressional expectation that many immigrants and nonimmigrants would possess means of self-support. See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). DHS believes that this rule substantially mitigates many of commenters' concerns while ensuring that USCIS can recover full costs and fund its ongoing operations. DHS also recognizes that the immigration process can be complex, and that benefit requestors may still risk becoming victims of scams or fraud. We encourage requestors to use the information on the USCIS website to avoid becoming victims of common scams, fraud, or misconduct.\140\ --------------------------------------------------------------------------- \140\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Scams, Fraud, and Misconduct,'' available at https://www.uscis.gov/scams-fraud-and-misconduct/scams-fraud-and-misconduct (last visited Sept. 25, 2023). --------------------------------------------------------------------------- d. Impact Based on Geography Comment: Several commenters stated that the proposed rule and certain form fees would have a disproportionate effect on benefit requestors and communities in various parts of the country, including: Rural areas or small towns, where individuals may lack access to technology. High cost-of-living areas, where individuals are forced to choose between meeting basic needs and pursuing immigration benefits. Particular states and cities that have large immigrant populations or high poverty rates, where immigrants have less access to technology, or where nonprofits may be burdened by COVID-19 and recent natural disasters. Response: DHS recognizes that certain individuals may experience more difficulty paying filing fees partly due to the area of the country in which they live and that this may have secondary effects on their communities. This rule is in no way intended to limit access to immigration benefits based on geography. Like past rules, this fee rule generally does not factor requestors' geographic locations in setting fees. Geography is only one of many factors that affect an individual's ability to pay, and geography may impact on individual's ability to pay differently depending on their profession, family, and other factors. For example, individuals living in high-cost areas may also benefit from higher wages, whereas individuals living in low-cost areas may face more limited job prospects. DHS considers it more effective to accommodate filers' ability to pay in the manners described earlier in this preamble. See section IV.E.3.a. of this preamble for a discussion of using the U.S. Department of Housing and Urban Development's (HUD) Mean Family Income (MFI), which accounts for the costs of living in different parts of the country, to determine eligibility for fee waivers. e. Impact on Economy/Employers Comment: Some commenters stated that raising immigration fees would: Hamper U.S. population growth and the country's ability to innovate in technology and culture. Deter workers. Have negative effects on the labor market by discouraging employers from hiring foreign workers. Create problems for retail, agriculture, construction, manufacturing, hospitality, and the labor pool in general. Response: DHS disagrees that these fees will negatively affect the labor [[Page 6244]] market or other sectors described in the comment. With previous fee increases in 2010 and 2016, DHS has continued to see a steady increase in filing and has not seen a reduction in filing based on fee increases. It is possible that USCIS observes no price response to past fee increases because the value of immigration benefits is greater than the fees USCIS assesses to recover costs. DHS has no data that would indicate the fees would limit employers' ability to hire foreign workers or negatively impact the labor market. In fact, H-1B receipts have grown by over 225,000 from FY 2010 through FY 2022. Growing demand in the period immediately after the 2010 and 2016 fee increases reveals that, in setting fees at levels to recover only USCIS costs, all applicants enjoyed some cost savings or surplus relative to what the immigration benefit was truly worth to them. USCIS has discussed related issues in depth in the supplemental RIA (see Section 5: Price Elasticity) and SEA. While DHS appreciates that an increase in prices for immigration benefits affects some individuals' choices to pursue or not pursue those benefits, DHS notes that demand may also decrease due to declines in service quality when USCIS programs are not properly funded. Lastly, DHS reiterates that this final rule lowers the Asylum Program Fee and certain Form I-129 fees for small employers and nonprofits. See 8 CFR 106.2(a)(3)(ix), (c)(13); Table 1. These changes further mitigate any risk that these fees will negatively impact the labor market or other sectors of the economy. Comment: Multiple commenters stated that the proposed fees are disproportionately burdensome, or otherwise harmful to the following types of petitioners: Smaller and midsized businesses and organizations, by further increasing labor costs associated with hiring immigrants. Nonprofits. Religious organizations. Response: DHS recognizes that the impacts that increased fees can have on smaller and midsized firms, as well as nonprofit and religious institutions. See Small Entity Analysis. However, DHS notes that these organizations are also impacted by delayed processing times, backlogs, and other lapses in service that result if USCIS' operations are not adequately funded. Mindful of the difficulties that smaller and midsized firms and nonprofits (including religious institutions) may face, DHS has discounted the proposed fee increases of the requests that many such entities submit in this final rule, as discussed in section II.C of this preamble. For small-employer and nonprofit petitioners, this final rule limits the fee increases for Form I-129. See 8 CFR 106.2(a)(3); Table 1. In addition, the final rule reduces the Asylum Program Fee by $300 for small employers and eliminates the Asylum Program Fee for nonprofit petitioners. See 8 CFR 106.2(c)(13). Comment: Commenters also stated that the proposed fees would be harmful to nonprofit legal service providers and other organizations that serve immigrant communities. A commenter specified that the increased fees would result in case-handling delays for their immigration clients, which will divert resources from other casework and advocacy priorities. Response: DHS recognizes the value of legal service providers and other groups that assist individuals in navigating its regulations and forms, and that fee increases can impact their ability to serve their clients. However, DHS believes that inadequate funding for USCIS (resulting in processing delays, backlogs, and otherwise inadequate service) would also impact these organizations' ability to deliver timely and effective legal services for their clients. As discussed earlier in this rule, the final rule contains several provisions that make immigration fees more affordable to the immigrant communities (often indigent and disadvantaged) that nonprofits serve. Comment: Multiple commenters stated that the proposed rules would exacerbate the negative economic effects of: The COVID-19 pandemic (e.g., job loss, inability to pay rent, labor shortages). Inflation. The war in Ukraine. Response: DHS acknowledges that the last few years have been difficult on immigrant communities due to the COVID-19 pandemic, inflation, and various international crises including the war in Ukraine. However, these events have impacted USCIS' financial stability as well.\141\ Without increased fees to adequately fund services, USCIS will inevitably experience decreases in the quality of its services, and it will be in a substantially worse position to manage future crises of these sorts when they arise. DHS notes that, during the COVID pandemic, USCIS implemented many policy changes to accommodate requestors.\142\ Also, the fee increases in this final rule will help fund USCIS' Uniting for Ukraine program, as well as other zero-fee or fee-exempt programs that address international, humanitarian crises, including refugee and asylum processing and DHS's FRP processes. Applicants continue to have fee waivers available for specific forms where they can demonstrate an inability to pay. See 8 CFR 106.3(a). --------------------------------------------------------------------------- \141\ 88 FR 402, 426-429 (Jan. 4, 2023); see also U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Uniting for Ukraine,'' https://www.uscis.gov/ukraine (last updated Sept. 20, 2023); U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``I-134A, Online Request to be a Supporter and Declaration of Financial Support,'' https://www.uscis.gov/i-134a (last updated Nov. 15, 2023) ($0 filing fee). \142\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``USCIS Response to COVID-19,'' https://www.uscis.gov/archive/uscis-response-to-covid-19 (last updated Mar. 6, 2023). --------------------------------------------------------------------------- Comment: A commenter stated that the increased fees further enhance the control that corporations and employers have over foreign workers, as any worker would require their employer's assistance to be able to afford the fees. Response: USCIS disagrees with the comment's premise that the beneficiary's ability to pay is a relevant factor in determining the appropriate fee for most employment-based visa petitions. In general, for employment-based petitions such as Form I-129 and some Form I-140s, it is the employing petitioner's decision whether to file a petition on any beneficiary's behalf, and the petitioner is generally expected to pay the fees associated with the filing of the petition. In some instances, the petitioning employer is required to pay certain fees and/or is precluded from charging the beneficiary certain fees.\143\ To the degree that the commenter is concerned that employers may place abusive conditions on their decision to file employment-based visa petitions, DHS encourages foreign workers to report any illegal practices. DHS and USCIS are committed to helping protect the rights of foreign workers in the United States.\144\ --------------------------------------------------------------------------- \143\ For example, employers are prohibited from charging job placement fees as a condition of employment for H-2 nonimmigrants, and H-2B beneficiaries are not permitted to pay any H-2B filing or Fraud Prevention and Detection fees. See 8 CFR 214.2(h)(5)(xi)(A), (6)(i)(B)-(D). Also, in some contexts, the employer is not authorized to deduct certain employer-related expenses, such as those related to preparation and filing of the Form I-129 petition, from the beneficiary's compensation. See, e.g., 20 CFR 655.731(c)(9) (prohibiting H-1B petitioning employers from making certain wage deductions, such as deductions for employer-related fees associated with the preparation and filing of an H-1B petition). Finally, some fees are required by statute to be paid by the petitioning employer. See section 214(c)(9) of the INA, 8 U.S.C. 1184(c)(9) (imposing a fee on certain employers filing H-1B petitions). \144\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Report Labor Abuses,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/report-labor-abuses (last updated Mar. 13, 2023). --------------------------------------------------------------------------- [[Page 6245]] f. Other General/Mixed Feedback on the Rule Comment: Multiple commenters expressed concerns regarding the timing of the rule. Some commenters suggested delaying the increase given the current economic situation. One commenter asked how the proposal would affect current immigration benefit requests. Another suggested that the fees only apply to those who have not yet initiated any immigration process to accommodate individuals currently affected by USCIS' backlog. Other commenters stated DHS should give 4 to 6 months' notice before the new fees go into effect. Response: DHS declines to delay effectiveness of this rule beyond the 60 days announced in the proposed rule. Because the proposed rule was published on January 4, 2023, DHS believes that interested parties will have received adequate notice of the forthcoming changes before their effective date. The new fees apply to any immigration benefit request postmarked on or after the effective date of this rule and do not affect any benefit requests that have already been submitted.\145\ USCIS may accept the prior fee for benefit requests postmarked before the new fees take effect. --------------------------------------------------------------------------- \145\ USCIS permits FedEx, UPS, DHL and USPS to deliver paper benefit requests. Generally, USCIS records the receipt date as the actual date it physically receives a request at the correct filing location. 8 CFR 103.2(a)(7). However, when USCIS issues new fees, it generally considers the postmark on the package as the date the request was filed or submitted. The shipping date printed on the shipping label will be considered the postmark date. If there is no shipping date on the label, USCIS considers the date you printed the label to be the postmark date. If the label does not have a shipping date or print date, USCIS will assume that the postmark date is 10 days before it received the package. --------------------------------------------------------------------------- While the fees in this final rule generally affect customers who apply on or after the effective date, there are some special circumstances for Forms I-485, Application to Register Permanent Residence or Adjust Status, I-765, Application for Employment Authorization, and I-131, Application for Travel Document, as explained in the proposed rule. See 88 FR 402, 492 (Jan. 4, 2023). Specifically, individuals who filed a Form I-485 after July 30, 2007, (the FY 2008/ 2009 fee rule) and before this final rule takes effect will continue to be able to file Form I-765 and Form I-131 without additional fees while their Form I-485 is pending. See 8 CFR 106.2(a)(7)(iv), (44)(iv)(A). Those who filed Form I-485 before the FY 2008/2009 fee rule, or on or after the effective date of this final rule, would pay separate fees for the interim benefits. The final rule implements a reduced fee of $260 for those applicants that must pay a fee for Form I-765 while their adjustment of status application is pending. See 8 CFR 106.2(a)(44)(i). Applicants for Form I-131 will pay the full fee of $630. See 8 CFR 106.2(a)(7)(iii). DHS disagrees with the commenter's recommendation to apply the new fees only to those who have not initiated any immigration processes before the rule's effective date. While DHS appreciates the commenter's concerns regarding backlogs, the commenter's proposal could apply indefinitely for individuals who choose to delay certain steps in the immigration process, such as adjusting from nonimmigrant to LPR status or filing for naturalization. Furthermore, DHS calculated the fees assuming that they would generally apply to all forms filed after the rule's effective date, so the commenter's proposal would require further fee increases to account for the numerous filers who would continue to pay the prior fees. As for upcoming filing periods for petitions that are subject to annual numerical limitations, the 60-day effective date of this rule should provide a sufficient period for petitioners to adjust to the new fees and form versions. The H-1B cap petition filing period generally begins on April 1 of each year. USCIS has not announced the specific H- 1B registration dates for FY 2025, but it is expected to be a roughly 14-day period in early- to mid-March. Neither date is affected by this rule.

C. Basis for the Fee Review

DHS received comments on the legal authority or rationale of the rule, the need for it, and its general approach, which we address in the following subsections. Comment: Regarding full cost recovery and use of the ``ability to pay'' and ``beneficiary pays'' principles, commenters stated: The proposed rule violates 8 U.S.C. 1356(m) by waiving fees for some beneficiaries and shifting the cost of those services to other beneficiaries. Only Congress, not DHS, has the legal authority to create waivers and exemptions. Congress did not authorize USCIS to raise fees by 40 percent, update fees based on inflation, or shift the cost of programs. Federal law and policy do not require USCIS to recover full costs through fees, and these costs should not be the only basis for determining fees. A commenter disagreed with the suppression of fees for benefits not explicitly exempted by law, and suggested adjusting fees based on the actual cost of the service and providing only those exemptions and waivers that are statutorily mandated. USCIS has arbitrarily decided which applicants bear the fee burden. USCIS suppresses fees for certain immigration benefits based on political preference. However, other commenters stated: USCIS must consider the public good that arises from applicants receiving immigration benefits and whether they are affordable for applicants when setting fees. Disregarding the ability-to-pay considerations would be ``arbitrary and capricious'' under the Administrative Procedure Act (APA). Other commenters wrote that USCIS' proposed ability-to-pay model violates the CFO Act, 31 U.S.C. 9701(b), which requires fees charged by agencies to be uniform and based on actual costs. They stated that adjusting fees based on ability-to-pay violates the statute. They stated that DHS lacks the legal discretion to provide discounts and shift costs except when explicitly directed by Congress. Other comments on the fee-setting approach supported USCIS' proposal to shift away from the beneficiary-pays principle toward an ability-to-pay principle balanced with a beneficiary-pays approach. Some stated that USCIS should further shift funding toward immigration services for lower income applicants who do not qualify for fee waivers or exemptions but nevertheless are unable to afford fee increases. Others stated that USCIS did not strike an appropriate balance between ability-to-pay and the beneficiary-pays principles. Some commenters stated USCIS should rely even more heavily on the beneficiary-pays model. For example, one stated that fees should be based on the cost of the provided service, and costs for subsidized services should be spread across all fee-paying beneficiaries. Response: As stated in the proposed rule, DHS is permitted but not required by law to recover all USCIS operating costs through fees. DHS has broad discretion to set USCIS fees to recover costs, and we generally adhere to longstanding guidance in setting fees. The U.S. Government Accountability Office (GAO) guidance for federal user fees, like USCIS immigration benefit request fees, states that agencies must balance efficiency, equity, revenue [[Page 6246]] adequacy, and administrative burden.\146\ When discussing equity, GAO explains two different ways to ensure everyone pays their fair share. Id. As described by the GAO, under the beneficiary-pays principle, the beneficiaries of a service pay for the cost of providing that service. Id. Under the ability-to-pay principle, those who are more capable of bearing the burden of fees pay more for the service than those with less ability to pay. Id. A GAO audit of the 2007 fee rule found that the rule clearly described the trade-off between these two principles.\147\ --------------------------------------------------------------------------- \146\ See GAO, ``Federal User Fees: A Design Guide'' (May 29, 2008), https://www.gao.gov/products/GAO-08-386SP, at 7-12. \147\ See GAO, ``Federal User Fees: Additional Analyses and Timely Reviews Could Improve Immigration and Naturalization User Fee Design and USCIS Operations'' (Jan. 2009), https://www.gao.gov/assets/gao-09-180.pdf, at 12-15. --------------------------------------------------------------------------- In prior years, USCIS fees have given significant weight to the ability-to-pay principle. IEFA fee exemptions, fee waivers, and reduced fees for low-income households adhere to this principle. Applicants, petitioners, and requestors who pay a fee cover the cost of processing requests that are fee exempt, fee-waived, or fee-reduced. For example, if only 50 percent of a benefit request workload is fee-paying, then those who pay the fee will pay twice as much as they would if everyone paid the fee. By paying twice as much, they pay for their benefit request and the cost of the same benefit request that someone else did not pay for. See 84 FR 62280, 62298 (Nov. 14, 2019). As we noted in the proposed rule, DHS appreciates that application of the ability-to-pay principle in immigration benefit fees may appear arbitrary because it results in certain fee payers funding the costs of USCIS-administered programs to which they receive no direct benefit. 88 FR 453. However, DHS determined that the fees did not result in a significant impact on a substantial number of small entities who file a request with USCIS. Id. The final rule reverses some aspects of the 2020 fee rule. See 88 FR 402, 424-426 (Jan. 4, 2023). One change is a return to focusing fee- setting away from the beneficiary-pays principle back toward the historical balance between the beneficiary-pays and ability-to-pay principles. See 88 FR 402, 425 (Jan. 4, 2023). Under the ability-to-pay principle, those who are more capable of bearing the burden of fees should pay more for the service than those with less ability to pay. IEFA fee exemptions, fee waivers, and reduced fees for low-income households adhere to this principle. Requestors who pay a fee cover the cost of processing requests that are fee exempt, waived, or reduced. This approach is consistent with previous fee rules, comments on the 2020 fee rule, current injunctions, Executive Order (E.O.) 14012,\148\ and public feedback. See 88 FR 402, 425-426 (Jan. 4, 2023). --------------------------------------------------------------------------- \148\ Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, 86 FR 8277 (Feb. 5, 2021). --------------------------------------------------------------------------- DHS is not publishing this rule or setting USCIS fees under the authority of 31 U.S.C. 9701(b).\149\ While the Independent Offices Appropriations Act (IOAA), codified at 31 U.S.C. 9701, grants broad authority to Federal agencies to assess user fees, the fees collected under that law are deposited in the general fund of the U.S. Treasury and are not directly available to the agency. USCIS fees are not required to be tied to the costs or value of services provided, and the revenue from the IEFA fees are available to USCIS until expended and are not deposited in the general fund of the U.S. Treasury. As explained in the proposed rule, ``In that regard, in INA sec. 286(m), 8 U.S.C. 1356(m), Congress imposed on DHS an additional obligation--to recover the full cost of USCIS operations--over and above the advice in OMB Circular A-25 concerning the direct correlation or connection between costs and fees.'' 88 FR 402, 418 (Jan. 4, 2023). In 2010 DHS also stated in a fee rule that, ``Additional values are considered in setting IEFA fees that could not be considered in setting fees under the IOAA.'' 75 FR 33449 (June 11, 2010) (internal cites omitted). The 2016 USCIS fee schedule proposed rule also described DHS latitude to set USCIS fees and such fees not being limited to the costs of the service. See 81 FR 26906-26907. --------------------------------------------------------------------------- \149\ The statute cited by the commenters also permits discounts and shifting costs based on considerations of public policy or interests served and other relevant facts and does not require that fees charged by agencies be uniform and not deviate from actual costs. See 31 U.S.C. 9701(b)(2)(C)-(D). --------------------------------------------------------------------------- As for DHS using the ability-to-pay or beneficiary-pays principles in setting USCIS fees, INA sec. 286(m), 8 U.S.C. 1356(m), does not prescribe a precise framework, methodology, or philosophy for DHS to follow in setting USCIS fees, except to recover costs. DHS endeavors to set fees in a manner that is rational, fair, and based on the recommendations of fee setting experts. To that end, DHS generally adheres to OMB Circular A-25 and has followed the Activity-Based Costing (ABC) method. DHS has also considered the recommendations of the GAO, as described earlier. DHS is authorized to recover the full cost of immigration adjudication and naturalization services, including similar services provided without charge to asylum applicants or other immigrants, through IEFA fees. See INA sec. 286(m), 8 U.S.C. 1356(m). There is a long history of using the ability-to-pay principle in USCIS fee- setting, as explained in the proposed rule. See 88 FR 402, 424-426 (Jan. 4, 2023). Other fee rules did not always use the term ability-to- pay but it has been a part of DHS and fee rules for a long time. For example, USCIS grants fee waivers based on demonstrated inability to pay, which is based on the ability-to-pay principle. See 8 CFR 103.7(c) (Oct. 1, 2020). In this final rule, DHS provides more fee exemptions, increases the income level for the reduced fee for Form N-400, Application for Naturalization, provides discounts for Form I-129, Petition for Nonimmigrant Worker, fees and the Asylum Program Fee, and exempts nonprofits from the Asylum Program Fee, all based on the ability-to-pay principle. See new 8 CFR 106.1(f), 106.2(a)(3), and 106(c)(13). Nothing in the DHS fee setting statute precludes DHS from providing discounts and shifting costs in such a manner. Comment: DHS summarizes comments regarding the funding for the Fraud Detection and National Security Directorate (FDNS) as follows: General support for USCIS improving service levels and deterring fraud for nonimmigrant benefits. FDNS funding violates fiscal law principles and the APA. FDNS activities were delegated to Immigration and Customs Enforcement (ICE) and funded by specific congressional appropriations. Revenue should be used solely for adjudications and not for investigation functions more appropriate for ICE and U.S. Customs and Border Protection (CBP). Appropriated funding for ICE has increased by 150 percent while funding for immigration services has only increased modestly. While Congress gave USCIS limited investigative responsibilities when it created FDNS, its mission has expanded without statutory authority. Moving enforcement functions out of USCIS and into ICE and CBP would allow USCIS to redirect FDNS expenses into its core adjudicatory functions, improving efficiency, and reducing proposed fee increases. FDNS could be more efficient, for example, by curtailing frivolous referrals. [[Page 6247]] Most FDNS cases and investigations involve already adjudicated petitions, resulting in adjudicating H-1B petitions again. Requested clarification of whether administrative site visits that arise from premium processing cases are paid out of the general budget or the premium processing budget. Response: USCIS appreciates the general support from the commenters who favored improving service levels and deterring fraud for nonimmigrant benefits. USCIS manages three fee accounts: (1) The IEFA (which includes premium processing revenues); (2) The Fraud Prevention and Detection Account, INA secs. 214(c)(12)-(13), 286(v), 8 U.S.C. 1184(c)(12)-(13), 1356(v); and (3) The H-1B Nonimmigrant Petitioner Account, INA secs. 214(c)(9), (11), 286(s), 8 U.S.C. 1184(c)(9), (11), 1356(s). The Fraud Prevention and Detection Account and the H-1B Nonimmigrant Petitioner Account are funded by statutorily set fees and divided among USCIS (for fraud detection and prevention), the National Science Foundation, and the Department of Labor (DOL). DHS does not have authority to adjust fees for these accounts; therefore, DHS cannot increase the fees to meet changing needs or costs. DHS interprets 8 U.S.C. 1356(v)(2)(B) as providing supplemental funding to cover activities related to fraud prevention and detection and not prescribing that only those funds may be used for that purpose. FDNS is funded from both the IEFA and the Fraud Prevention and Detection Account. The fees deposited in the Fraud Prevention and Detection Account that are fixed by statute are insufficient to cover the full costs of FDNS. DHS disagrees that ensuring a petitioner is compliant with the terms and conditions of their petition through site visits or other FDNS workload is frivolous, a second adjudication, or duplicated by other DHS components. FDNS's work does not fall into ``intelligence'' and/or ``investigations'' work that the INA assigned to ICE. The Homeland Security Act of 2002 granted the Secretary of Homeland Security the authority to administer and enforce provisions of the INA, as amended, INA sec 101, 8 U.S.C. 1101 et seq. The Secretary, in Homeland Security Delegation No. 0150.1, delegated certain authorities to USCIS. One of many authorities delegated to USCIS in administering and enforcing immigration laws was the authority to ``investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the USCIS and make recommendations for prosecutions, or other appropriate action when deemed advisable.'' FDNS's activities fall squarely within this delegation. FDNS was established in 2004 in response to a congressional recommendation to establish an organization ``responsible for developing, implementing, directing, and overseeing the joint USCIS-Immigration and Customs Enforcement (ICE) anti-fraud initiative and conducting law enforcement/ background checks on every applicant, beneficiary, and petitioner before granting immigration benefits.'' \150\ FDNS fulfills the USCIS mission of enhancing both national security and the integrity of the legal immigration system by: (1) identifying threats to national security and public safety posed by those seeking immigration benefits; (2) detecting, pursuing, and deterring immigration benefit fraud; (3) identifying and removing systemic vulnerabilities in the process of the legal immigration system; and (4) acting as USCIS' primary conduit for information sharing and collaboration with other governmental agencies. FDNS also oversees a strategy to promote a balanced operation that distinguishes USCIS' administrative authority, responsibility, and jurisdiction from ICE's criminal investigative authority. The Secretary, in Homeland Security Delegation No. 0150.1, delegated several relevant authorities to USCIS, including the following: --------------------------------------------------------------------------- \150\ See Conference Report to accompany H.R. 4567 [Report 108- 774], ``Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005,'' p. 74, available at http://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf. --------------------------------------------------------------------------- Authority under section 103(a)(1) of the INA, as amended, 8 U.S.C. 1103(a)(1), to administer the immigration laws (as defined in section 101(a)(17) of the INA). Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the BCIS and make recommendations for prosecutions, or other appropriate action when deemed advisable. Authority to register and fingerprint aliens in the United States, and exercise other functions relating to registration and change of address, as provided by sections 262-266 of the INA, 8 U.S.C. 1302-06. Authority to place noncitizens in removal proceeding by issuance of a Notice to Appear, and to cancel such Notice before jurisdiction vests with the Executive Office for Immigration Review of the Department of Justice (EOIR). Authority to approve bonds issued under the immigration laws, to determine whether such bonds have been breached, and take appropriate action to protect the interests of the United States with respect to such bonds. Authority to interrogate noncitizens and issue subpoenas, administer oaths, take and consider evidence, and fingerprint and photograph noncitizens under section 287(a), (b), and (f) of the INA, 8 U.S.C. 1357, and under section 235(d) of the INA, 8 U.S.C. 1225(d). Authority under the immigration laws, including but not limited to section 310 and 341 of the INA (8 U.S.C. 1421 and 1452), to grant applications for naturalization and certificates of citizenship (and revoke such naturalization), including administration of oaths, issuance of certificates, provision of citizenship materials and services to public schools to prepare naturalization candidates, supervision of courts designated under section 310 of the INA to administer oaths, and any other rights and responsibilities relating to the naturalization or citizenship of noncitizens. Authority under the immigration laws, including but not limited to sections 204 and 214 of the INA (8 U.S.C. 1154 and 1184), to accept and adjudicate nonimmigrant and immigrant visa petitions (whether family based, employment-based, or other), including collection of appropriate fees, conduct of interviews, and appellate review of the BCIS decisions that do not fall within the jurisdiction of EOIR. Authority to investigate suspected fraud by Regional Center and related entities and to take other actions to ensure the integrity of the Immigrant Investor (EB-5) Program. Authority under immigration laws to extend and change nonimmigrant status and to adjust the status of noncitizens to lawful residents (on a temporary or permanent basis) and to revoke such status, including determination of admissibility of noncitizens, authority to grant waivers of inadmissibility and permission to reapply for entry, and authority to conduct interviews (or waive interviews) regarding an alien's eligibility for an immigration benefit. In 2017, the Secretary, in Homeland Security Delegation No. 15002, delegated the following certain law enforcement authorities to USCIS: [[Page 6248]] In matters under the jurisdiction of USCIS, to protect the national security and public safety, to conduct law enforcement activities, including accessing internet and publicly available social media content using a fictitious account or identity, provided that such activities shall only be conducted by properly trained and authorized officers, and in a manner consistent with the Reservations set forth in DHS Delegation Number 0150.1 and consistent with the Department's obligations to protect privacy and civil rights and civil liberties. Regarding the Administrative Site Visit and Verification Program (ASVVP), DHS explained in the proposed rule how USCIS collects information on the costs associated with ASVVP and assigns the distinct costs for these site visits to Forms I-129, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. See 88 FR 402, 496 (Jan. 4, 2023). Those costs are not paid directly from premium processing revenue. Therefore, DHS has determined that the commenters misunderstand the nature of FDNS in USCIS. FDNS efforts are integral to determining an applicant's eligibility for a benefit, and to maintain the integrity of the immigration system. DHS makes no changes to these final fees as a result.

1. Background and Fee Review History

Comment: Many commenters requested that DHS formally withdraw the previously enjoined 2020 fee rule to ensure that USCIS fees and policies would default to the current fee schedule rather than the 2020 fee structure, should the proposed rule be found unlawful. Many commenters stated that USCIS should sever the 2020 fee rule from the remainder of the currently proposed rule to not jeopardize the withdrawal. Other commenters requested that DHS formally withdraw the 2020 fee rule, reasoning that the current proposal reflects a considered policy judgment on the part of USCIS that those features of the 2020 Fee Schedule are undesirable as a policy matter and are inconsistent with the goals of Federal immigration laws. Response: DHS understands the concerns of the commenters because the fees in the 2020 fee rule have been codified for at least 2 years. However, as explained in the proposed rule, DHS is operating under two preliminary injunctions related to the 2020 fee rule. See 88 FR 402, 420 (Jan. 4, 2023). DHS continues to comply with the terms of those orders and is not enforcing the regulatory changes set out in the 2020 fee rule. There is also a separate injunction related to fee waiver changes in 2019. Id. USCIS continues to accept the fees that were in place before October 2, 2020, and to follow the fee waiver guidance in place before October 25, 2019. DHS and the parties in Immigrant Legal Resource Center v. Wolf, NWIRP, City of Seattle, and the related cases agreed to, and the courts have approved, a stay of those cases while the agency undertook this fee review and prepared the proposed rule. These rulings did not vacate the 2020 fee rule as having been codified in contravention of the law; they only preliminarily enjoin them. Thus, to remove the 2020 fees from the Code of Federal Regulations, DHS must engage in notice and comment rulemaking. Because, as stated in this rule, DHS needs a new USCIS fee schedule forthwith, we have determined that it was more efficient to focus on replacing and revising the 2020 fee regulations than to expend the additional effort required to revert the 2020 fees back to the October 1, 2020, fees in a separate rulemaking. DHS makes no changes to the rule based on these comments. Comment: Commenters stated that USCIS' pattern of doubling the percentage increase of previous rules in each subsequent fee rule is not sustainable.\151\ They stated that fees have already been raised enough and there should be a ceiling to USCIS' previous, current, or proposed fee structures. One commenter stated that USCIS filing fees continue to increase over time and there is no stopgap or ceiling in mind to maintain the affordability of these benefits. --------------------------------------------------------------------------- \151\ One commenter compared the weighted average increase in the proposed rule with prior fee rules (in 2010 and 2016) and stated that these double every fee rule. --------------------------------------------------------------------------- Response: DHS examined each fee in the proposed rule and the proposed fees represent DHS's best effort to balance access, affordability, equity, and the national interest while providing USCIS with the funding necessary to maintain adequate services. As the cost of employees, services, buildings, and supplies increase, so must our fees. However, several public comments stated that the proposed fee increases greatly exceeded the rate of inflation, and others wrote that they could understand the need for USCIS to keep up with inflation.\152\ After considering the applicable comments, DHS has decided to reduce many fees in this rule from what were proposed and adopt the recommendations of commenters to increase the current fees only by the amount of inflation since the date those fees were established. --------------------------------------------------------------------------- \152\ Notwithstanding these comments, as discussed later in this preamble, other commenters wrote that they opposed DHS codifying authority to adjust fees based on the amount of inflation as measured by the difference in the CPI-U. 8 CFR 106.2(d). --------------------------------------------------------------------------- As stated in this rule and the proposed rule, DHS has generally adhered to ABC and cost reallocation to determine USCIS fees and has not adjusted IEFA non-premium fees by inflation since 2005. See Adjustment of the Immigration Benefit Application Fee Schedule, 70 FR 56182 (Sept. 26, 2005). After considering public comments, the amount inflation since the FY 2016/2017 fee rule, and the size of the fee increases, DHS has decided that adjusting certain fees by the rate of inflation strikes a balance between the need to increase revenue to recover USCIS costs and maintain affordability for some immigration benefit requests.\153\ --------------------------------------------------------------------------- \153\ DHS used June 2023 as the end date for the period of inflation to be consistent with the 2023 premium processing fee inflation adjustments. 88 FR 88 FR 89539 (Dec. 28, 2023). DHS acknowledges that inflation will likely change from the June 2023 CPI-U before the fees in this rule take effect. The time and effort required to calculate the fees for this rule, draft comment responses, prepare supporting documents, perform the regulatory impact analysis, small entity impact analysis, and clear the rule through the necessary channels requires that a reasonable endpoint be selected on which to base the required calculations and move the final rule forward without continuous updates. ---------------------------------------------------------------------------

2. Fee-Setting Approach

Comment: A commenter stated that recovering costs should not include USCIS having a ``carryover balance'' that exceeded the revenue necessary to adjudicate petitions. Response: USCIS is primarily fee-funded, which means it must use carryover, or the unobligated or unexpended fee revenue accumulated from previous fiscal years, to continue operating at the beginning of each fiscal year or when costs otherwise exceed revenue. The INA authorizes DHS to set fees at a level to recover ``the full costs'' of providing ``all'' ``adjudication and naturalization services,'' and ``the administration of the fees collected.'' 8 U.S.C. 1356(m). Many USCIS administered immigration benefit requests, such as H-2B and H-1B petitions, see significant seasonal fluctuations in filings, which can result in seasonal fluctuations in USCIS revenue and spending. As GAO acknowledges, fee-funded agencies may need to designate funds as operating reserves to weather periods when [[Page 6249]] revenue collections are lower than costs.\154\ --------------------------------------------------------------------------- \154\ See GAO, ``Federal User Fees: Fee Design Options and Implications for Managing Revenue Instability,'' (Sept. 30, 2013), https://www.gao.gov/assets/gao-13-820.pdf (last visited May 3, 2023). --------------------------------------------------------------------------- The proposed rule explained how USCIS uses and estimates carryover balances. See 88 FR 402, 417, 426-427 (Jan. 4, 2023); see also IEFA Non-Premium Carryover Projections in the supporting documentation included in the docket to this rulemaking. Most Federal programs are financed by discretionary appropriations that receive an annual Treasury warrant, which establishes a cash balance in their accounts after enactment of appropriations.\155\ USCIS' IEFA has permanent or indefinite warrant authority that allows for immediate access to carryover balances and revenue collections subject to the annual spending limits established by Congress. Id. --------------------------------------------------------------------------- \155\ See generally U.S. Department of the Treasury, Bureau of the Fiscal Service, ``Treasury Financial Manual,'' ``Chapter 2000.'' Available at https://tfm.fiscal.treasury.gov/v1/p2/c200 (last viewed Aug. 27, 2023). --------------------------------------------------------------------------- Carryover balances give USCIS and other fee-funded agencies flexibility throughout the fiscal year if costs exceed revenues. Historically, fee revenue in the first quarter of the fiscal year is low due to seasonal filing patterns. Therefore, USCIS requires carryover funds to pay Federal salaries and award certain contracts at the beginning of the fiscal year. USCIS manages its fee accounts to ensure that adequate carryover balances are generated and retained to: Cover the cost of processing immigration benefit requests that are pending adjudication at the end of the fiscal year. Serve as contingency funding in the event of an unexpected decline in fee collections. Cover the start-up costs of new or expanded programs before sufficient fee revenues from such programs are collected (if a fee is to be collected). Cover other valid contingencies. DHS declines to make changes based on this comment, except for budget and operational changes described elsewhere in this final rule, which may affect the forecast for carryover balances.

1. Projected Costs, and Revenue

Comment: A commenter asked USCIS to explain and justify how the percentage increase or change for each fee was calculated. Another commenter stated that the proposed rule provided no data point(s) on the cost of resource usage about each form category and reasoned that without establishing effort estimates, an increase in fees would be arbitrary. A few commenters wrote that USCIS' projected costs and revenue are not credible. Response: In the proposed rule, DHS provided information on how it calculated the budget and revenue and estimated costs for the fee review. See 88 FR 402, 426-432 (Jan. 4, 2023). DHS described the methodology it uses to assign those estimated costs in an ABC model. See 88 FR 402, 432-451 (Jan. 4, 2023); see also FY 2022/2023 IEFA Fee Review Supporting Documentation (supporting documentation), and FY 2022/2023 IEFA Fee Schedule Documentation (fee schedule documentation) both included in the docket as numbers USCIS-2021-0010-0028 and USCIS- 2021-0010-0029 respectively for review and comment. DHS described how it assesses and proposed fees based on the ABC model results or policy decisions to maintain some current fees or limit some fee increases. See 88 402, FR 450-451. DHS describes changes to the fee review budget in sections II.C. and II.F. of this preamble. Throughout the proposed rule, DHS referenced ABC model results, often called the model output, when discussing proposed fees. See, e.g., 88 FR 402, 485-487, 503, 515-516 (Jan. 4, 2023). DHS included supplemental information associated with the FY 2022/2023 fee review results and corresponding proposed rule in the docket. The supporting documentation provided a functional overview of the fee review process and results. It includes estimated total cost and unit costs for each immigration benefit request in the fee review.\156\ USCIS also demonstrated the ABC model software used for the fee review during the public comment period.\157\ --------------------------------------------------------------------------- \156\ For example, see Appendix Table 3: Projected Total Cost by Immigration Benefit Request in the supporting documentation for the proposed rule available at https://www.regulations.gov/document/USCIS-2021-0010-0028. \157\ A transcript of the software demonstration is available at https://www.regulations.gov/comment/USCIS-2021-0010-4141. --------------------------------------------------------------------------- DHS provides revised versions of the supplemental documents based on budget, staffing, or operational changes described elsewhere in this preamble but declines to make any other changes based on these comments. DHS notes that fees do not merely cover the cost of adjudication time because USCIS incurs costs that are not directly associated with adjudication. The fees also cover the resources required for intake of immigration benefit requests, customer support, fraud detection, accounting, human capital, legal counsel, training, and other administrative requirements.\158\ --------------------------------------------------------------------------- \158\ In the supporting documentation for the proposed rule, see appendix tables 4-7 for details on how DHS proposed fees based on the ABC model results and results by fee review activity. Pages 10- 12 define the activities in the appendix tables. See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, FY 2022/2023 IEFA Fee Review Supporting Documentation (Jan. 2023), https://www.regulations.gov/document/USCIS-2021-0010-0028. ---------------------------------------------------------------------------

2. Methodology

Many commenters wrote with general concerns that the proposed increases to fees lack substantive support and transparency on how the agency calculates fee amounts based on workload and metrics used to review and adjust fees. More detailed comments on the methodology are in the following subsections. a. Completion Rates (Average Hours per Adjudication of an Immigration Benefit Request) Comment: Commenters expressed concern with growing adjudication times and increases in completion rates for forms and certain applications. Some commenters divided current or proposed fees by completion rates (average hours per adjudication of an immigration benefit request) to calculate hourly rates for immigration benefits. Commenters expressed concern with increasing hourly rates of their own determination, citing various forms. Commenters stated: USCIS' data shows a significant increase in completion rates without any corresponding change in statutory or regulatory requirements. Many forms have an increase in completion rates from 49 percent to 218 percent, despite the lack of statutory or regulatory changes. Many forms with increased completion rates show substantial proposed fee increases. They are concerned about completion rates for selected forms and suggested that USCIS work to eliminate or reduce inefficiencies. USCIS notes that they used pre-pandemic values for some, but not all, of the data used to project completion rates, and the lack of clarity on these differences raises questions about the validity of the data used in the ABC model. Most of the Form I-129F, Petition for Alien Fianc[eacute](e), filings do not require applicant interviews or otherwise take up extreme officer [[Page 6250]] resources that would justify this substantial of an increase. Touch times for Form I-539 have increased even though USCIS has reinstated concurrent processing of H1/H4/Employment Authorization Document (EAD) and L1/L2/EAD applications, which should result in gains in process efficiency. Changes brought about by recent litigation should have reduced touch times for many forms, but instead touch times have increased. How touch time would be tracked and calculated using the costing model and if USCIS includes FDNS activity in its calculation of touch time. Increased form length is a major reason why USCIS adjudicators are spending 3.3 million additional hours reviewing petitions and USCIS must stop requiring unnecessary renewals of work permits. Commenters provided recommendations for reducing completion rates. Some applicants are paying ``over $1,000+/hour'' despite an adjudication burden of only a few hours for completion. USCIS' ``effective hourly rate'' is four times the prevailing wage for an attorney. Response: USCIS used the best completion rate data available at the time to conduct the FY 2022/2023 fee review. In its last four fee rules, DHS has used USCIS completion rates to assign costs from the Make Determination activity to individual cost objects (i.e., forms). USCIS continued this approach in the FY 2022/2023 fee review. As explained in the proposed rule, USCIS relied on completion rates before the pandemic to remove this effect from the fee review. See 88 FR 402, 446. USCIS used online filing data that included pandemic months. See 88 FR 402, 490. The mix of two time periods for two different data points should not affect the results of the ABC model. When online filing is available, USCIS often uses the same case management system to adjudicate both online and paper filings. As such, USCIS used the same completion rates for both online and paper filings. DHS limited many of the proposed fee increases (i.e., adoption- related form fees, Forms I-290B, Notice of Appeal or Motion, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, N-400, Application for Naturalization, etc.), as done in previous fee rules. See 88 FR 402, 450-451 (Jan. 4, 2023). In other cases, DHS proposed to maintain the current fee (i.e., Forms I-90 when filing online, I-131A, N-565, etc.). See 88 FR 402, 451 (Jan. 4, 2023). Some other fees do not use completion rates (i.e., I-131A, H-1B Registration Fee, USCIS Immigrant Fee, etc.). See 88 FR 402, 446-447 (Jan. 4, 2023). As explained elsewhere in this rule, many of the final fees are lower than in the proposed rule. For example, DHS limits the fee increase to inflation since the 2016 rule for Forms I-130, Petition for Alien Relative, I-485, Application to Register Permanent Residence or Adjust Status, I-765, Application for Employment Authorization, etc. DHS appreciates the commenters' concerns about increased form length, timely service, and higher fees. USCIS continually strives to minimize the burden on requesters, meet timely adjudication goals while balancing security, eligibility analysis, and integrity in the immigration system. The proposed rule highlighted areas where USCIS may be able to increase efficiency or reduce adjudication time or staffing. See 88 FR 402, 529 (Jan. 4, 2023). However, it may be too early for USCIS to see results from these planned changes or recently implemented changes. Future fee rules may use more recent completion rates, which may include efficiencies or reduced adjudication times. As noted previously, fees do not merely cover the cost of adjudication time because USCIS incurs costs that are not directly associated with adjudication. The hourly adjudication rates calculated by some commenters must fund the cost of relevant administrative costs, technical and technological facilitation, and similar services provided at no or reduced charge that are not recovered from other fees. By limiting many of the final fees to an inflation-based adjustment of the current fee, rather than one calculated based on a completion rate, DHS addresses the concerns of the commenters who disagree with fees being based on completion rates and the relative complexity of the adjudication. With this approach, USCIS may continue to improve efficiency and adjudication times without overburdening customers with fees that are higher than inflation for family-based and humanitarian workloads, in most cases. b. Other Comments on Methodology (e.g., ABC Software/Models, Age of Data) Comment: Multiple commenters also stated that the ABC model is flawed, or the documentation is insufficient for the following reasons: Documentation of the fee review methodology and inputs does not provide a comprehensive understanding of the study's execution. USCIS chose not to use actual cost values and instead relied on projections, and it could not identify information in the documentation that either explained with specificity how the projected values were determined or addressed potential observational errors that may have impacted cost projections. Documents provided to the public did not provide the insight necessary to ascertain how the data in the model was compared across the FYs that USCIS examined. The ABC model has underestimated the number of petitions that will be filed and therefore underestimated the impact on small and seasonal American businesses, farmers, and the public. Because USCIS is proposing that employment-based applications cover the cost for other benefits, underestimation of H-2B and H-2A filings shows that other employment filings are also off, and the proposed fees and cost offsets need to be further reviewed with more adequate data. USCIS should be more transparent on USCIS' ABC model and into calculation and review of fee levels. USCIS should provide a public forum whereby it describes to stakeholders how the methodology and data used in the ABC model allowed it to reach its conclusions. USCIS does not provide the public with the information that went into the ABC model and consequently the public cannot determine whether its conclusions are justified or reasonable. Response: The INA authorizes DHS to recover the costs of USCIS by collecting fees and the CFO Act requires us to do a fee review every 2 years. Neither statute requires use of any particular methodology. As stated in the proposed rule and this rule, DHS strives to follow OMB Circular A-25, as appropriate for the programs we administer. In doing so, DHS strives to allocate fees using activity-based costing, adjust fees using considerations of public policy, interests served, and other relevant facts, and consider the recommendations of GAO regarding beneficiary-pays and ability-to-pay principles to shift costs and set our final fees. Our adopted methodology results in some requests paying no fee, others paying more, and others paying less. DHS tries to be fair, precise, transparent, and thoughtful within reasonable margins of accuracy and precision. Nonetheless, the commenter's assertion that our calculations or fee determination is incorrect is misplaced. DHS explains in the supporting documentation in the docket for this rule how each fee in the proposed rule and this rule were calculated. DHS [[Page 6251]] engages in discretionary cost shifting and adjusts before arriving at a final fee schedule. DHS outlined how the ABC model works in the proposed rule preamble and supporting documentation, consistent with previous fee rules. In addition, it shared model and fee schedule documentation in the docket. USCIS also provided a demonstration of the model, as requested, and placed a transcript of the demonstration in the docket.\159\ During the demonstration, USCIS often referred to information in the docket to show how the model uses it. The information used to calculate specific fees is the best and most complete information available at the time of the fee review. Requests that were only developed or authorized relatively recently (e.g., separate fees for Form I-129; Employment Based Immigrant Visa, Fifth Preference (EB-5) workloads; Asylum Processing IFR costs) may have limited data, not be fully implemented, or require assumptions for the new fees. USCIS will be able to refine this data in the future as programs mature or data collection begins, which will be used for future fee reviews. Some fee changes in the proposed rule and this final rule are outside of the ABC model, as discussed in the preamble and fee schedule documentation. See, e.g., 88 FR 402, 450-454 (Jan. 4, 2023). --------------------------------------------------------------------------- \159\ See USCIS, ``USCIS Fee Rule Software Demonstration,'' Mar. 1, 2023, available at https://www.regulations.gov/comment/USCIS-2021-0010-4141. --------------------------------------------------------------------------- Information provided in the ABC model includes the cost projections, volume, and completion rates discussed in the preamble. See, e.g., 88 FR 402, 426-452 (Jan. 4, 2023). The supporting documentation discussed additional information, such as staffing levels, fee review activities, and a functional overview of ABC in general and the USCIS ABC model. The model documentation provided functional and technical details on how the model works. It included diagrams, screenshots, lists, and tables for various aspects of the ABC model. Thus, DHS believes that we have explained and justified our calculations of the fees in this final rule. As for the filing volume estimates, USCIS uses a volume projection committee (VPC) with statistical and analytical experts who systematically examine filing volumes to produce forecasts used in fee studies. The VPC examines past trends, forecasts, and varying models, and USCIS has found that the VPC reliably minimizes forecast errors that might occur if forecasting were left to self-interested parties. The VPC projects filing volume several years ahead. USCIS has reviewed the comments from H-2A and H-2B employers that misunderstood the 25 named beneficiaries per petition requirement as a limit on the overall number of beneficiaries and argued the ratio of initial to continuing requests to be a superior basis for modeling annual growth of at least 15 percent in both H-2A and H-2B volumes, in perpetuity. USCIS agrees with one commenter that nature is unpredictable and demand for seasonal agricultural workers is volatile but disagrees with unsupported arguments that higher H-2A and H-2B volumes and thus revenues are self- evident. In the event less likely volumes did occur, commenters overlook that this would cause changes in the activities driving ABC model estimates of average costs and impact the revenue the fee would generate. Thus, USCIS must take care to neither over nor underestimate future, unknowable volumes without bias.

3. TPS and DACA (e.g., Exclusion From Cost Model, I-821, I-765

Exemption for Certain TPS Applicants, and DACA Rulemaking) Comment: Commenters provided the following comments on how the proposed rule would affect DACA requests, fees, and grantees: Increased fees would create hardship for DACA students required to renew their paperwork every 2 years. Higher fees increase the vulnerability of DACA recipients by raising the costs to maintain their documentation. USCIS should set DACA application fees at current or lower levels to address financial disparities faced by immigrant communities and working families. DACA recipients already pay a filing fee that other protected groups do not, and fee waivers are not a solution to the proposed increase. Maintain current DACA fees because DACA recipients were not considered in the financial modeling for the proposed rule. Some disagreed with the exclusion of DACA recipients from filing fee relief regardless of their potential financial hardship. The DACA program diverts agency resources from lawful immigrant programs, resulting in fee increases and longer processing times for applicants to other visa programs. USCIS should increase processing fees for DACA because the fee is lower than other requests, yet the burden is higher. DACA requestors broke the law so their fees should be punitive. DACA recipients should be able to request advance parole based on any grounds and be allowed to request a fee waiver. Response: This rule makes no changes to DACA, the validity period for approved DACA renewals or how often DACA must be renewed, policies regarding DACA recipients' ability to request advance parole, or any DACA-specific fees. As explained in the proposed rule, DACA is a temporary act of enforcement discretion, may be terminated at any time, and thus it is a source of revenue on which DHS does not want the fiscal condition of USCIS to depend. See 88 FR 402, 454-455 (Jan. 4, 2023). To request DACA, an individual must file Form I-821D, Consideration of Deferred Action for Childhood Arrivals, which has an $85 filing fee. The applicant must also file Form I-765, Application for Employment Authorization, together with Form I-821D for the DACA request to be complete. Form I-765 is a general form used by millions outside of the DACA population. It has a filing fee of $410, which increases in this final rule to $470 when filed online or $520 when filed on paper. All Form I-765 applicants pay the same fee, unless they are fee exempt or request a fee waiver. DHS found no differences in the burden of adjudicating Form I-765 for DACA than for any other Form I-765 and we have no policy reasons for capping their fee at a lower amount. In DHS's 2022 DACA rule, the total fee to submit a DACA request of $495 ($85 plus $410) was a reasonable proxy for the Government's costs of processing these forms. See 87 FR 53152, 53278 (Aug. 30, 2022).\160\ However, that rule also stated that DHS planned to propose new USCIS fees in a separate rulemaking, and that the fee for Form I-765, may need to be adjusted because it has not changed since 2016. Id. --------------------------------------------------------------------------- \160\ On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the DACA rule unlawful and expanding the original July 16, 2021 injunction and order of vacatur to cover the final rule. See Texas v. United States, No. 1:18-CV-00068 (S.D. Tex. Sept. 13, 2023), appeal pending, No. 23-40653 (5th Cir. filed Nov. 9, 2023); see also USCIS, ``Important Update on Deferred Action for Childhood Arrivals,'' available at https://www.uscis.gov/newsroom/alerts/important-update-on-deferred-action-for-childhood-arrivals (last reviewed/updated Sept. 18, 2023). --------------------------------------------------------------------------- In DHS's 2022 DACA rule, DHS considered allowing fee waivers or fee exemptions for DACA requestors. See 87 FR 53152, 53237-53238. In that rule DHS recognized that some DACA [[Page 6252]] requestors may face economic hardship that affects their ability to pay the required fees. However, it noted that DACA, as an exercise of prosecutorial discretion that allows DHS to focus limited resources on higher priority cases, is not an immigration benefit or associated filing for which DHS is required to allow a request for a fee waiver under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7), and that it is appropriate for beneficiaries of this enforcement discretion to cover the cost of adjudication. Id. DHS declines to reverse that decision in this rule. This final rule sets fees for Form I-765 that are increased only by the rate of inflation since they were last established, and less than the proposed fees, as explained elsewhere in in section II.C.8 of this rule's preamble. Comment: A commenter wrote that USCIS could allocate more resources to TPS based on how much an applicant paid in fees, and that TPS could receive faster processing if they paid more. Response: As explained in the proposed rule, DHS excludes projected revenue from expiring or temporary programs in setting the fees required to support baseline operations due to the uncertainty associated with such programs. See 88 FR 402, 454 (Jan. 4, 2023). DHS realizes that USCIS has processing backlogs for Form I-821, Application for Temporary Protected Status, and we are working to reduce those backlogs and approve requests quickly. DHS is precluded from charging more for faster processing of the Form I-821 by INA sec. 244(c)(1)(B), 8 U.S.C. 1254a(c)(1)(B), which caps the TPS registration fee at $50. While USCIS has implemented premium processing for some Form I-765 categories in March 2023, a TPS related Form I-765 was not one of them.\161\ USCIS may offer premium processing for TPS-related Form I- 765 filings as provided in 8 CFR 106.4 in the future as we develop more capacity to offer premium service to more requests. Meanwhile, DHS makes no changes to this rule based on this comment. --------------------------------------------------------------------------- \161\ USCIS, ``USCIS Announces Premium Processing; New Online- Filing Procedures for Certain F-1 Students Seeking OPT or STEM OPT Extensions,'' available at https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt (last reviewed/ updated Mar. 6, 2023). ---------------------------------------------------------------------------

4. Processing Time Outlook and Backlogs

Comment: Many of the commenters opposed fee increases because of delays in processing times and dissatisfaction with customer service. Commenters wrote: Conditional support for the fee increases if such increases will improve or not cause any backlogs and only if USCIS can process cases quickly or accelerate processing. USCIS should improve efficiency and achieve long term structural improvements without increasing fees, should focus first on improving efficiency and service provision as opposed to raising fees, include a processing time guarantee, establish a ``binding'' processing timeframe with each fee increase, reverse the fee increases if USCIS fails to meet specific processing times, and USCIS has no accountability with maintaining regular processing times and has not demonstrated the ability to reduce these timelines. Commenters questioned what mechanisms would hold USCIS to higher efficiency standards. USCIS should clear the backlog and decrease processing times, the current backlog and long processing times are not reasonable, processing times are getting longer without any justifying policy or legal changes, USCIS has ``record-high'' processing delays and backlogs and is not meeting legal guidelines for processing times, processing times increased over the last 6 years by as much as 218 percent. USCIS has no accountability with maintaining regular processing times and has not demonstrated the ability to reduce these timelines. Commenters stated the growing length of USCIS forms is a ``major contributor'' to the backlog. Applicants are not responsible for the backlog and should not carry its burden, the backlog is harmful for low-income applicants awaiting permanent residency or naturalization, and immigrant and nonimmigrant fees should bear the burden of cost for the backlog rather than U.S. citizens or noncitizen relatives. The backlog has a negative impact on many non-immigrant workers, DACA recipients, TPS holders, and other EAD applicants seeking to maintain their employment status in their current jobs and seeking USCIS services, and applicants from higher education seeking employment or other opportunities. Raising fees and hiring additional staff would be a ``band-aid'' solution to a flawed processing model that has created the current backlog crisis. Processing delays may deter many touring artists from performing in the United States and processing delays force some petitioners to pay the premium fees for international artists, particularly given the specific timing demands of performing arts schedules. USCIS should improve processing so fewer applicants need to pay for premium processing. USCIS requires some dependents of long-term temporary workers to file extensions of status separate from the worker, contributing to the backlog. USCIS should reduce Requests for Evidence (RFE) as unnecessary complications that cause delays in processing, publish RFE issuance rates by adjudicator, and establish stricter requirements for responding to evidence and issuing RFEs. Recent RFE reductions by USCIS should be considered in the proposed filing fees. In response to the statement in the proposed rule that part of the 2022 congressional appropriations would be used to reduce current backlogs and delays, USCIS has not shown the capacity to quickly address developing backlogs and USCIS should not rely solely on yearly appropriations. Recommendations of several means of reducing backlog, including requesting annual appropriations if needed and adjusting fees annually based on staffing factors. The processing times and backlogs for the Form I-600A and I-600 series and Form I-800A and I-800 series should be reduced, and adjudication of adoption cases should be prioritized. Concerns about specific forms, including Form I-129 processing times are three to five times longer than mandated by statute for L-1 petitions. Form I-539 processing times have ballooned despite process changes that should have streamlined adjudication, for Form I-485, USCIS should promise a period of fewer than 6 months to process the form and its underlying petitions; applicants must file concurrent Forms I-485, I-131, and Form I-765, given the increasing processing times. These delays increase backlogs for Form I-129F. Because the processing time has increased in recent years, USCIS should not propose to significantly increase fees for the fianc[eacute] and spousal applications. Lengthy processing times for Form I-131, result in increased congressional inquiries, Ombudsman's inquiries, and expedite requests, all of which create greater inefficiencies. Further, processing delays make it difficult for students to anticipate their start dates on their applications and are not warranted given that the Form I-765 duplicates information that USCIS has already collected. [[Page 6253]] For Form I-824, the simple purpose of this form should not necessitate processing times of 2-4 years. Form N-400 commenters recommended a case processing goal of 4-6 months and stated that increased vetting policies have increased processing times, despite stable rates of approval of applications. USCIS has a 1-to-3-month processing time for O-1 petitions (although the statutory requirement for adjudication is 14 days), so USCIS should refund the filing fee if processing takes longer. For K-1 visa holders applying for Adjustment of Status, processing time varies greatly depending on the applicant's location of residency and review of interim benefit requests for such applicants should be shorter given that those applicants' relationships and backgrounds have already been reviewed. Processing delays for F-1 student visas impede registrations from international students, which can diminish the students' contribution to U.S. innovation and limits revenue streams for U.S. colleges and universities. Lengthy J-1 waiver approval processing has caused interruptions in income or necessitated priority processing. DHS should avoid any Form N-400 fee increase by pursuing greater efficiencies and cost savings using technology. USCIS should refund the higher proposed fees if the agency does not process the following forms within its processing time goal: I-290B, I-800A, I-824, I-140, N-400, I-526, I-102, I-130, I-129F, I- 360, I-129, I-90, I-539, I-131, I-765, I-485. Increased processing times and the need to hire new employees are problems of USCIS' own making through unnecessary RFEs, biometrics, in-person interviews, site visits, audits, and failure to take advantage of technological advances that could lead to more streamlined and cost-effective procedures. It is prudent for USCIS to increase fees because it has been 6 years since the last increase and the United States is experiencing widespread inflation, but USCIS should ensure that any increase improve the efficiency of its services and customer support. Response: USCIS appreciates that its processing backlogs have a negative impact on many stakeholders who submit and rely on immigration benefit requests. USCIS is committed to timely processing goals and reducing its backlog. DHS acknowledges that since it last adjusted fees in FY 2016, USCIS has experienced elevated processing times compared to the goals established in the 2007 fee rule. See 72 FR 29858-29859. Processing delays have contributed to case processing backlogs. USCIS total pending caseload has grown from approximately 4.7 million cases in December 2016, when DHS last adjusted IEFA non-premium fees, to approximately 8.9 million cases at the end of June 2023.\162\ On top of these preexisting strains on USCIS, the COVID-19 pandemic constrained USCIS adjudication capacity by limiting the ability of USCIS to schedule normal volumes of interviews and biometrics appointments while maintaining social distancing standards. See 88 FR 402, 455 (Jan. 4, 2023). COVID flexibilities likely increased the time to respond to an RFE, as well as processing times.\163\ Further, USCIS believes that the growing complexity of case adjudications in past years, including prior increases in the number of interviews required and RFE volumes, at the time contributed to higher completion rates and growing backlogs. Id. --------------------------------------------------------------------------- \162\ See USCIS, ``Number of Service-wide Forms by Fiscal Year to Date, Quarter and Form Status 2017,'' available at https://www.uscis.gov/sites/default/files/document/data/ECN_1893_-_Quarterly_-_All_Forms_FY17Q1_Final.pdf (last visited Sep. 29, 2023). USCIS, ``Number of Service-wide Forms By Quarter, Form Status, and Processing Time, April 1, 2023--June 30, 2023,'' available at https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2023_q3.pdf (last visited Sep. 29, 2023). \163\ See, e.g., USCIS, ``USCIS Extends COVID-19-related Flexibilities'' available at https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-1 (last revised/updated Jan. 24, 2023). --------------------------------------------------------------------------- USCIS is making progress reducing backlogs and processing times. For example, USCIS committed to new cycle time goals in March 2022.\164\ These goals are internal metrics that guide the backlog reduction efforts of the USCIS workforce and affect how long it takes the agency to process cases. As cycle times improve, processing times will follow, and requestors will receive decisions on their cases more quickly. USCIS has continued to increase capacity, improve technology, and expand staffing in an effort to achieve these goals by the end of FY 2023. DHS automatically extended some EADs to help prevent renewal applicants from experiencing a lapse in employment authorization or documentation while their applications remain pending. See 87 FR 26614 (May 4, 2022). Automatic extension of employment authorization or documentation allows some immigrants, including asylees, refugees, and TPS holders, to maintain their employment status in their current jobs. Id at 26615-26617. To highlight other efforts toward reducing the backlog and processing times, USCIS published a progress report to demonstrate both how backlog reduction and humanitarian services were successfully supported by appropriations by Congress in FY 2022.\165\ USCIS reduced the backlog for naturalization and the wait time for employment authorization, while expanding humanitarian efforts.\166\ USCIS already delivered on one of the commitments in the progress report by implementing premium processing for all employer Form I-140 petitions for immigrant workers.\167\ Since publishing the report, USCIS also announced that premium processing is available for certain students seeking Optional Practical Training (OPT) or Science, Technology, Engineering, and Mathematics (STEM) OPT extensions, as well as certain changes or extensions of nonimmigrant status.\168\ --------------------------------------------------------------------------- \164\ See USCIS, ``USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders,'' https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work (last visited Feb. 8, 2023). \165\ See USCIS, ``USCIS Releases New Data on Effective Reduction of Backlogs, Support for Humanitarian Missions, and Fiscal Responsibility,'' https://www.uscis.gov/newsroom/news-releases/uscis-releases-new-data-on-effective-reduction-of-backlogs-support-for-humanitarian-missions-and (last visited Feb. 7, 2023). \166\ See USCIS, ``Fiscal Year 2022 Progress Report,'' Dec. 2022, available at https://www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf (last visited Feb. 8, 2023). \167\ See USCIS, ``USCIS Announces Final Phase of Premium Processing Expansion for EB-1 and EB-2 Form I-140 Petitions and Future Expansion for F-1 Students Seeking OPT and Certain Student and Exchange Visitors,'' https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions (last visited Feb. 7, 2023). \168\ See USCIS, ``USCIS Announces Premium Processing; New Online-Filing Procedures for Certain F-1 Students Seeking OPT or STEM OPT Extensions,'' https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt (last visited Mar. 6, 2023); USCIS, ``USCIS Expands Premium Processing for Applicants Seeking to Change into F, M, or J Nonimmigrant Status,'' https://www.uscis.gov/newsroom/alerts/uscis-expands-premium-processing-for-applicants-seeking-to-change-into-f-m-or-j-nonimmigrant-status (last visited June 12, 2023). --------------------------------------------------------------------------- DHS appreciates the operational suggestions submitted by commenters regarding interviews, RFEs, online filing, prioritization of certain requests, USCIS office staffing, and other steps to address the USCIS processing backlog. As explained in the proposed rule, USCIS is reviewing its adjudication and administrative policies to find [[Page 6254]] efficiencies, while strengthening the integrity of the immigration system. See 88 FR 402, 455 (Jan. 4, 2023). This entails evaluating the utility of interview requirements, biometrics submission requirements, RFEs, deference to previous decisions, and other efforts that USCIS believes may, when implemented, reduce the amount of adjudication officer time required, on average, per case. Id. Any improvements in these completion rates would, all else equal, reduce the number of staff and financial resources USCIS requires. Furthermore, USCIS is actively striving to use its existing workforce more efficiently, by investigating ways to devote a greater share of adjudication officer time to adjudications, rather than administrative work. All else being equal, increasing the average share of an officer's time spent on adjudication (that is, utilization rate) would increase the number of adjudications completed per officer and reduce USCIS' overall staffing and resource requirements. USCIS based its fee review largely on existing data that do not presume the outcome of these efficiency initiatives. USCIS cannot assume significant efficiency gains in this rule in advance of such efficiency gains being measurably realized. Establishing more limited fees to account for estimated future efficiency could result in deficient funding, and USCIS would not be able to meet its operational requirements. USCIS also cannot refund fees if it does not meet its processing time goals as commenters suggest without incurring significant harm to its fiscal position, which would in turn only exacerbate backlogs. In contrast, if USCIS ultimately receives the resources identified in this rule and subsequently achieves significant efficiency gains, this could result in backlog reductions and shorter processing times. Those efficiency improvements would then be considered in future fee reviews, as indicated in the proposed rule. See 88 FR 402, 529-530 (Jan. 4, 2023). Finally, regarding the current USCIS processing time for O-1 petitions, and the commenter's suggestion that USCIS should refund filing fees for O-1 petitions that take more than 14 days to adjudicate, DHS disagrees with the commenter's assertion that there is a generally applicable requirement to process O-1 petitions within 14 days. Rather, the statute and regulations refer to a non-binding 14-day processing time, after USCIS receives an advisory opinion, in the limited context where USCIS requests an advisory opinion from an appropriate labor organization. See 8 U.S.C. 1184(c)(6)(D); 8 CFR 214.2(o)(5)(i)(F). DHS will not adopt the commenter's suggestion to refund O-1 petition filing fees in cases that take longer than 14 days to adjudicate. As with other filing fees, the O-1 petition filing fee is due at time of filing and is nonrefundable. In sum, DHS understands the need for timely service, system improvements, and customer support. USCIS continually strives to meet timely adjudication goals while balancing security, eligibility analysis, and integrity in the immigration system. Fees have not been adjusted since 2016. Meanwhile, USCIS expanded its humanitarian efforts, often without appropriations or revenue to offset the additional cost.\169\ This fee rule is intended to address such shortfalls and provide resources necessary to ensure adequate service. USCIS would be unable to adequately perform its mission if DHS allowed fee levels to remain insufficient while USCIS continued to explore and implement options for additional efficiencies. --------------------------------------------------------------------------- \169\ For example, as described in section III.C. DHS established new parole processes for certain Cubans, Haitians, Nicaraguans, and Venezuelans, and new family reunification parole processes for certain Colombians, Salvadorans, Guatemalans, and Hondurans. --------------------------------------------------------------------------- Comment: Many of the commenters suggested operational improvements which they felt would reduce processing times or improve customer service. Commenters wrote: USCIS should add more electronic filing. USCIS should use interview waivers, evidence of employment authorization, the creation of a trusted filer program, remote interviews, phone appearances, grandfathering, penalty fees, extend validity periods of visas, and recapture and issue Green Card numbers that have gone unused to reduce costs and the backlog. Applicants should be given the name and email of their adjudicator to establish more transparent and efficient communication. USCIS should increase adjudicator hiring rates and training, and provide better training combined with managerial oversight and review of adjudications. USCIS should transparently include planned process improvements in its costing model. Form I-130, commenters recommended a simplified registration system to prevent USCIS from spending resources managing applications during lengthy waiting periods. USCIS should stop requiring unnecessary renewals of work permits, citing research that such renewals compose 20 percent of the case backlog. USCIS should stop printing Green Cards, and EAD cards for applicants who already have a Green Card. DHS should offer premium processing fees to alleviate long processing times for VAWA applicants coming from difficult situations. Combining the forms, fees, and adjudications for Forms N- 400 and N-600 would save both families and USCIS considerable time and money. Effort to process Form I-751 has fallen by 11 percent over the past 6 years but processing time is increasing dramatically and does not comply with statutory timeframes. Fees for I-751 filers should be used to improve I-751 processing times and not for other higher priority forms. Response: DHS appreciates the operational suggestions submitted by commenters regarding processing times, process improvement, customer service, interviews, streamlined filings, online filing, prioritization of certain requests, training, and other steps to address the USCIS processing backlog. As explained in the proposed rule, USCIS is reviewing its adjudication and administrative policies to find efficiencies, while strengthening the integrity of the immigration system. See 88 FR 402, 455 (Jan. 4, 2023). DHS considered these recommendations but declines to make changes in this rule. DHS may consider these changes again in future rulemakings.

1. General Comments

Comment: Multiple commenters expressed general support for the fee waiver provisions in the proposed rule, some without explanation and others for the following reasons: Fee waivers are important for immigration relief because they help families improve their stability, financially support themselves, and fully integrate into the workforce. The proposed rule would replace the enjoined 2019/2020 changes, which severely limited immigrants' access to fee waivers including the reduced fee option for low-income naturalization applicants. The proposed rule would revert to the inability to pay model for establishing eligibility for fee waivers, and avoid other issues in prior proposed fees. Many individuals apply for naturalization or a Certificate of Citizenship with a fee waiver. The proposed rule continues to allow fee waivers for forms associated with certain types of humanitarian benefits. The United States has a moral and legal obligation to protect persons fleeing persecution. [[Page 6255]] The proposed rule would preserve existing fee waiver eligibility for low-income and vulnerable populations and ensure that the fee changes would not disproportionately impact people who are struggling financially. Fee waivers provide an opportunity for low- income individuals to become citizens of the United States and participate in the democratic process. Without fee waivers, many low- income individuals would not have an equal opportunity to access the pathway to citizenship. Many of the changes DHS proposed will prevent meritorious fee waiver requests from being denied on arbitrary bases, as is often now the case. Strengthening of fee waivers supports union efforts to uplift the rights and status of those in need of increased agency in the labor market. Response: DHS agrees with commenters regarding the importance of fee waivers and will maintain their availability as explained in the proposed rule.

2. Eligible Categories and Forms

Comment: Several commenters asked USCIS to balance fee increases by significantly expanding fee waiver eligibility. One commenter stated that DHS should expand the categories of applications eligible for fee waivers without specifying which additional categories should receive fee waivers. Another commenter encouraged USCIS to expand fee waivers to further ensure that all vulnerable noncitizens who cannot afford to pay filing fees are able to obtain a fee waiver and access immigration benefits without unreasonable delay or undue difficulty. Another commenter requested that USCIS allow for individual determinations as to whether a fee waiver should be granted for all applications. The commenter reasoned that categorical restrictions placed on fee waivers for certain applications combined with the increase in fees proposed will pose obstacles for many immigrants, resulting in the delay of immigrants' ability to apply for immigration relief. Response: DHS acknowledges the importance of ensuring that individuals who cannot afford filing fees have access to fee waivers. DHS has primarily sought to ease the burden of fee increases by significantly expanding the number of forms that are now fee exempt. See 8 CFR 106.3(b); Table 5B. DHS believes that these expanded fee exemptions offer more certainty to those who are unable to pay application fees and create less burden because they do not require filing or processing of a fee waiver request. In addition, DHS is maintaining the household income level for assessing a requestor's ability to pay at 150 percent of the FPG instead of the 2019/2020 fee rule's lower threshold of 125 percent of the FPG. 8 CFR 106.3(a)(1)(i)(B). This fee rule also retains the authority for the Director of USCIS to provide exemptions from or waive any fee for a case or specific class of cases, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law. See 8 CFR 106.3(c). DHS believes it has provided fee waivers for the appropriate forms and categories by emphasizing humanitarian, victim-based, and citizenship-related benefits. Additional fee waivers would limit USCIS' ability to fund necessary activities and would lead to additional backlogs and delays. Otherwise, USCIS would need to increase fees for other forms and requestors to compensate for fewer requests paying fees. DHS has sought to balance the need for the fee waivers and the need to ensure sufficient revenue and does not believe additional fee waivers are appropriate. Comment: Multiple commenters wrote that USCIS should make additional family-related immigration benefits eligible for fee waivers. One commenter expressed concern that some Form I-129F petitioners and beneficiaries would have to go into debt to get married and recommended that DHS allow low-income individuals to request a waiver of the Form I-129F. Another commenter expressed opposition to the rule because fees cannot be waived for Forms I-130 and I-751. Response: Contrary to the commenter's assertion, the fee for Form I-751, Petition to Remove Conditions on Residence, can be waived. 8 CFR 106.3(a)(3)(i)(C). In general, however, DHS does not consider Form I- 129F, Petition for Alien Fianc[eacute](e), and Form I-130, Petition for Alien Relative, appropriate for fee waivers because the petitioning U.S. citizen or LPR relative is statutorily required to demonstrate their ability to financially support the noncitizen beneficiary at the time of their admission as an LPR. See INA secs. 212(a)(4)(C)(ii) and 213A, 8 U.S.C. 1182(a)(4)(C)(ii) and 1183a. DHS does not believe that these USCIS fees represent an inordinate financial burden compared to the financial commitment required to fully support an immigrant relative. Comment: A commenter expressed concern that the fee for Form I-539 is not waivable for T and U nonimmigrants when the form is filed concurrently with Form I-485. The commenter remarked that this would cause significant financial burden to victims filing U-visa and T-visa based Form I-485 applications, who often cannot hire a private attorney to help them file an I-485 in timely fashion, and the additional I-539 fee would further delay the ability of survivors in this situation to reconcile their expired status with the filing of a nunc pro tunc Form I-539 and Form I-485 application. Response: In the proposed rule, DHS proposed to fully exempt the fee for a Form I-539, Applicant to Extend/Change Nonimmigrant Status, filed by applicants who have been granted T nonimmigrant status or are seeking to adjust status under INA sec. 245(l), 8 U.S.C. 1255, regardless of whether the form is filed before or concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status. See 88 FR 402, 594 (Jan. 4, 2023) (proposed 8 CFR 106.3(b)(2)(vi)). DHS has maintained this fee exemption in the final rule. 8 CFR 106.3(b)(2)(vi); Table 5C. Furthermore, in response to comments, DHS has decided to extend the fee exemption for Form I-539 to include applicants who have been granted U nonimmigrant status or are seeking to adjust status under INA sec. 245(m), 8 U.S.C. 1255(m), regardless of whether the form is filed before or concurrently with Form I-485. 8 CFR 106.3(b)(5)(vi). That limited, additional fee exemption did not increase the fees for other fee payers. As explained elsewhere, DHS revised the USCIS budget to accommodate the revenue generated by the fees and volumes in this final rule. These fee exemptions will enable the vulnerable population of U nonimmigrants to maintain their nonimmigrant status while applying to adjust to LPR status. Comment: A commenter stated that fee waivers and exemptions should be extended to other critical forms for asylees, reasoning that asylees are just as vulnerable and meet the same legal definition as refugees. The commenter did not identify specific forms that should be eligible for a fee waiver but asserted that the following forms should be fee exempt: Form I-485 for asylees, Form I-765 renewal and replacement for asylees and asylum applicants, and Form I-290B for asylees and refugees when filed for Forms I-730 or I-485. Response: All the forms identified by this commenter are eligible for a fee waiver. 8 CFR 106.3(a)(3)(ii)(D), (F), (iv)(C); Table 5B. Comments concerning fee exemptions are addressed later in the Section IV.F of this preamble. Comment: Commenters stated that the proposed fee changes would unfairly categorize athletes as a classification [[Page 6256]] that can afford the fee increases and requested that a broader spectrum of forms, including the Form I-129 and Form I-140 when not filed by an employer, be eligible for fee waivers or reductions. Another commenter encouraged USCIS to consider a waiver option for O and P petitions, combined with a tiered structure (possibly based on maximum planned venue size), which the commenter reasoned would benefit all interests without jeopardizing potential U.S. revenue streams and the socioeconomic contributions of small- and medium-sized artists. Response: DHS recognizes commenters' concerns regarding the affordability of Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Workers, and that not all athletes or artists are wealthy. As further discussed in Section II. C of this preamble, in response to public comments and stakeholder feedback, DHS is codifying a discounted Form I-129 fee for small employer and nonprofit filers in this final rule. 8 CFR 106.2(a)(3)(ix). However, while DHS recognizes the economic and cultural contributions made by O and P nonimmigrants and I-140 self- petitioners, DHS does not believe that these factors justify fee-waiver eligibility or fee exemptions for Form I-129 and Form I-140 petitions. USCIS can only allow a limited number of forms to be eligible for fee waivers, or else it would require even further increases in fees to offset lost revenue. DHS has chosen to prioritize fee waivers for humanitarian and protection-related immigration forms where the beneficiary may not have a reliable income or their safety or health is an issue, and naturalization and citizenship-related forms to make naturalization accessible to all eligible individuals.\170\ DHS notes that the process for assessing fee-waiver eligibility is generally designed for individuals, not organizational petitioners for O and P nonimmigrants because their ability to pay cannot be assessed under those guidelines (e.g., receipt of a means-tested benefit, or household income below 150% of the FPG). See 8 CFR 106.3(a)(1)(i). --------------------------------------------------------------------------- \170\ See E.O. 14012, 86 FR 8277 (Feb. 5, 2021). --------------------------------------------------------------------------- Comment: A commenter expressed concerns about the increasing frequency of fee waivers because it is possible for some applicants to obtain fee waivers through different forms and multiple filings. The commenter also asserted that applicants abuse fee waivers, reasoning that some individuals file multiple application types and request a fee waiver for each application to avoid paying fees. Considering these concerns, the commenter recommended that no fee waivers be given for Forms N-400 and N-600. Response: DHS believes the commenter's concern is unfounded. As discussed in Section IV.E.7 of this preamble, fees waiver requests, approvals, and foregone revenue have remained consistent over the last 10 years, and they are currently well below levels in FY 2015-17. See Table 6. DHS disagrees that an applicant seeking multiple fee waivers for different applications constitutes ``abuse'' because each subsequent form is required to be accompanied by its own fee waiver request, and each fee waiver request is considered on its own merits. Multiple fee waiver requests may reflect an ongoing inability to pay due to legitimate reasons such as low income or disability, which must be documented in each request. Comment: A commenter stated that fee waivers should not be available for naturalization-related applications because U.S. citizenship is a privilege, not a right. Response: DHS disagrees with the premise of this comment. The INA provides for the statutory, nondiscretionary right to apply for naturalization. See INA secs. 316, 319, 328, and 329; 8 U.S.C. 1427, 1430, 1439, and 1440. DHS acknowledges the advantages that new citizens obtain with naturalization, but also recognizes the significant benefits that the United States obtains from the naturalization of new citizens.\171\ In maintaining fee waivers and reduced fees for naturalization-related applications, DHS seeks to promote naturalization and immigrant integration.\172\ Because applicants may be unable to pay at the time of naturalization, USCIS believes that continuing to allow naturalization applicants to request fee waivers is in the best interest of the program and consistent with the statute. --------------------------------------------------------------------------- \171\ See Holly Straut-Eppsteiner, Cong. Research Servs., R43366, ``U.S. Naturalization Policy,'' (May 2021), https://crsreports.congress.gov/product/pdf/R/R43366. \172\ This is also consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). --------------------------------------------------------------------------- Comment: One commenter stated there should be no full fee waivers for individuals who are not asylum, VAWA, T visa, or U visa-based requesters. The commenter expressed support for reduced fees but reasoned that it would cause USCIS to continue dedicating extra time and resources to verify and review the request for reduced fees. The commenter suggested that, if USCIS must keep fee waiver options for forms like the N-400 then it should temporarily cancel the option for 1 year to see if it results in a decrease in filings. The commenter reasoned that, if there were a decrease, this would allow USCIS time to adjudicate current backlogs and recoup the full amount of fees for all new filings, and if there was a minimal decrease, it would inform future discussion of minimizing fee waivers. Response: DHS disagrees with the commenter's proposal to limit full fee waivers to certain humanitarian categories and exclude others. DHS believes that there are equally deserving humanitarian categories, including refugees, Cuban Adjustment Act (CAA) and Haitian Refugee Immigration Fairness Act (HRIFA) adjustment applicants, Special Immigrant Afghans and Iraqis, SIJs, and TPS recipients. Furthermore, in recognition of the benefits that the United States receives when immigrants naturalize, DHS believes that waived and reduced fees should be available to all naturalization applicants regardless of class of admission. DHS disagrees with the commenter's rationale for temporarily suspending Form N-400, Application for Naturalization, fee waivers because this would arbitrarily burden immigrants who have recently become eligible for naturalization but do not have the funds to pay the fee. In FY 2021, USCIS waived 39,738 fees for Form N-400s and approved 2,606 reduced-fee requests, so DHS anticipates that a similar number of applicants would be prevented from applying for naturalization were it to temporarily suspend fee waivers and reductions for the Form N-400. Instead of limiting fee waivers for Form N-400, DHS has decided to raise the income threshold to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). As for the commenter's assertion that suspending fee waivers and reductions would allow USCIS to decrease its backlog, we believe this would only result in a surge of Form N-400 filings once fee waivers and reductions were reinstituted. The commenter is correct that USCIS dedicates time and resources to review requests for fee waivers or reduced fees, but that effort is necessary and valuable for enabling low-income applicants to access immigration benefits, while also ensuring that only those who meet the requirements have their fees waived. On March 29, 2022, USCIS announced new actions to reduce backlogs, and announced that the Form N-400 cycle time goal is 6 months.\173\ In FY 2023, [[Page 6257]] USCIS greatly improved Form N-400 processing times to 6.3 months from 11.5 months in FY 2021.\174\ --------------------------------------------------------------------------- \173\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders'' Mar. 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work. \174\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,'' https://egov.uscis.gov/processing-times/historic-pt (last visited Aug. 18, 2023). ---------------------------------------------------------------------------

3. Eligibility

a. Means-Tested Benefits Comment: Noting that the proposed rule would accept a child's receipt of public housing assistance as evidence of the parent's eligibility for a fee waiver when the parent resides in the same residence, commenters wrote that the proposal is limiting and requested that USCIS include a child's receipt of other means-tested benefits, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI) as acceptable evidence. A couple of these commenters stated that all other qualifying means-tested benefits programs similarly screen for financial hardship and inquire about assets and income for the applicant's household, and therefore any household member's receipt of a means-tested benefits should have the same probative value as a child's receipt of public housing assistance for fee waiver eligibility. One commenter said broadening the criteria for fee-waiver eligibility based on means-tested benefits will save USCIS time and effort adjudicating fee waiver requests and training staff, as evidence of receipt of means-tested benefits is often simpler to review than evidence of an entire household's income or financial hardship. Another commenter concluded that DHS has not provided a reasoned explanation of its choice to treat various public benefits differently. One commenter stated that in many cases only the applicant's child meets the criteria for a public benefit. Response: After considering the comments on the proposed rule, DHS has decided to modify the instructions for Form I-912 to accept evidence of receipt of a means-tested benefit by a household child as evidence of the parent's inability to pay because eligibility for these means-tested benefits is dependent on household income. That would entail public housing assistance, Medicaid, SNAP, TANF, and SSI, although DHS is not codifying specific means-tested benefits and will implement those as examples in guidance through the updated Form I-912 instructions. DHS has decided to limit this policy to household spouses and children because other household members' eligibility for certain means-tested benefits may not reflect the financial need of the fee waiver requestor. For example, for SSI purposes an individual's deemed income only includes the income of their spouse and parents with whom they live and their Form I-864 sponsor.\175\ USCIS retains the discretion to determine whether any requestor is eligible for a fee waiver, including whether the means tested benefit qualifies as provided in 8 CFR 106.1(f) and the Form I-912 form instructions. --------------------------------------------------------------------------- \175\ Soc. Sec. Admin., ``Understanding Supplemental Security Income, What Is Income?'' (2023), https://www.ssa.gov/ssi/text-income-ussi.htm (last visited Aug. 21, 2023). --------------------------------------------------------------------------- Comment: A commenter recommended that USCIS expand evidence of receipt of means-tested benefits to include a benefits card, in lieu of the current requirements for a formal letter, notice, or other official documents. The commenter said this change would alleviate the administrative burden to those who would have to otherwise spend hours struggling to obtain a formal notice of receipt. Response: DHS already accepts a benefits card as evidence of a means-tested benefit if the card shows the name of the benefit recipient, the name of the agency granting the public benefit, the type of benefit, and that the benefit is currently being received.\176\ While it is unfortunate that not all benefit cards provide information about dates of receipt for the benefit, DHS believes that without this information a benefits card is not sufficient evidence that the fee waiver requestor currently receives the benefit. --------------------------------------------------------------------------- \176\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Additional Information on Filing a Fee Waiver,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-fee-waiver (last updated Oct. 31, 2023); see also U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Policy Memorandum, PM-602-0011.1, ``Fee Waiver Guidelines as Established by the final rule of the USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update AD11-26'' (Mar. 13, 2011), https://www.uscis.gov/sites/default/files/document/memos/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf; U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, Form I-912, Instructions for Request for Fee Waiver 5 (Sept. 3, 2021), https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf. --------------------------------------------------------------------------- b. Household Income at or Below 150 Percent FPG, and Suggested Income Levels Comment: Some commenters wrote that they supported that DHS will continue to use the FPG to determine income thresholds for fee waiver purposes because it is a recognized national standard also used by other Federal programs. Response: DHS appreciates the support and will continue to use the FPG as one means of assessing inability to pay. Comment: Some commenters generally stated that the income eligibility limit for a fee waiver at 150 percent of FPG is too low or should be reconsidered. Multiple commenters suggested that USCIS increase the income threshold to establish an inability to pay to at or below 200 percent of the FPG, with some providing the following rationale: This would expand eligibility for those who earn too much to qualify for a fee waiver but too little to be able to afford the proposed fees. This would more accurately reflect the realities of low- income individuals, particularly as this rule seeks significant increases for fees for integral applications, such as employment authorization, permanent residence, and family petitions. This would impact a significant portion of the community of low-income immigrants. In 2019, immigrants who were at 150 percent to 199 percent of the Federal poverty level constituted one-third, or 4,503,000, of all low-income immigrants in the country. This would take into consideration applicants in states such as California, where cost of living and the poverty threshold for public benefit programs are higher. Survivors of domestic violence, sexual assault, and human trafficking may have a household income that puts them over 150 percent of the FPG, but they may face economic obstacles due to their victimization that impede their ability to pay immigration filing fees. This would be consistent with the income guidelines that federally funded legal aid agencies use per the Legal Services Corporation's regulations. Other commenters recommended that DHS increase the eligibility threshold to at or below at least 300 percent of FPG. The commenters said there are people who would not qualify under the proposed rule's criteria and examples for ``financial hardship'' and are excluded from waived or reduced fees because they make a little more than 200 percent of FPG, despite their [[Page 6258]] economic struggles and bona fide ``inability to pay'' for current immigration fees, let alone the proposed fee increases for citizenship, adjustment of status, and other benefit requests. Response: DHS acknowledges that certain individuals may continue to face difficulty paying immigration fees despite having a household income that is above 150 percent of the FPG. However, DHS declines to further raise the income limit for fee waivers because increasing the number of requests that do not pay fees would require even greater fee increases for other fee-paying individuals, many of whom already face significant increases in fees with this new rule. Otherwise, USCIS' ability to maintain services and improve backlogs would be limited. However, DHS notes that the current fee rule contains several provisions that lessen the burdens for low-income filers. First, there are other ways of demonstrating inability to pay besides household income. An individual may demonstrate inability to pay if they or their spouse or child living in the same household are currently receiving a means-tested benefit, despite having household income over 150 percent of the FPG. See 8 CFR 106.3(a)(1)(i)(A). DHS fee waiver guidance provides that USCIS will accept Federal, State, or locally funded mean- tested benefits. Income limits for certain means-tested benefits vary by State and account for different costs of living.\177\ DHS also accepts various forms of financial hardship as evidence of inability to pay. See 8 CFR 106.3(a)(1)(i)(C). In addition, DHS has significantly expanded the forms that are now fee exempt, which includes benefits for victims of trafficking, violent crimes, and domestic violence. See Table 5B. These requestors will not be required to request a fee waiver for certain forms. Finally, as explained in section II.C.13 of this preamble, DHS has significantly expanded the income limit under which N-400 applicants qualify for a reduced fee from the originally proposed 200 percent limit to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). --------------------------------------------------------------------------- \177\ See, e.g., Am. Council on Aging, ``Medicaid Eligibility Income Chart by State'', July 2023, https://www.medicaidplanningassistance.org/medicaid-eligibility-income-chart/ (last updated July 10, 2023). --------------------------------------------------------------------------- Comment: Some commenters recommended adopting the Department of Housing and Urban Development (HUD)'s measure of Median Family Income (MFI) instead of the FPG to assess fee waiver eligibility based on household income. The commenters said HUD's approach is more realistic and equitable in determining who has an inability to pay because it considers how an individual's geographic location impacts their cost of living, whether they live in real poverty, and, ultimately, their ability to afford an immigration benefit. The commenters disagreed with DHS's rationales for using the FPG: (1) having a consistent national standard, (2) maintaining consistency between fee waiver eligibility and other Federal programs, and (3) avoiding confusion. Commenters asserted that having a consistent national standard ``is not a justification but instead a reason for questioning its use;'' that the MFI is consistent with HUD's Federal programs and benefits; that receipt of means-tested HUD benefits can demonstrate inability to pay under DHS's other criteria; and that any potential confusion of switching to MFI could be addressed through training and public education campaigns. Other commenters did not specifically advocate for MFI, but generally stated that USCIS should assess inability to pay based on a requestor's location and the high cost of living in certain areas of the country. Another commenter stated that USCIS should use more accurate means-tested standards without identifying why the current standards are inaccurate or recommending specific alternative standards. Response: DHS recognizes that the cost of living in certain areas of the country is greater than in others, and therefore people with equal household incomes may face varying difficulty paying immigration fees due to their geographic location. However, DHS believes that this concern is mitigated by allowing receipt of a means-tested benefit to show inability to pay since, as commenters note, the income thresholds for some means-tested benefits vary by State and locality. Therefore, individuals who qualify for a means-tested benefit due to their higher cost of living may still qualify for a fee waiver, even if their household income is above 150 percent of the FPG. This concern is also mitigated for residents of Alaska and Hawaii, who have unique FPG charts.\178\ --------------------------------------------------------------------------- \178\ U.S. Dept of Health & Human Servs., ``HHS Poverty Guidelines for 2023,'' https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines (last visited Aug. 21, 2023). --------------------------------------------------------------------------- DHS believes that the benefits of using FPG outweigh those of HUD's median family income (MFI) when assessing an individual's ability to pay. Despite comments to the contrary, DHS believes it is important to have a consistent national standard for the income threshold. Relying on a single, uniform standard reduces administrative costs in comparison to HUD's MFI, which would require requestors, legal service providers, and adjudicators to calculate fee waiver eligibility based on geographic area. Requestors often change their geographic location between filing for immigration benefits, and a consistent national standard would avoid potentially complicated inquiries into which geographic location is more appropriate in assessing their ability to pay. A consistent national standard also removes the incentive to misrepresent one's address to obtain a fee waiver. While DHS recognizes that MFI is used effectively for administering HUD's Federal programs and benefits, Department of Health and Human Services' (HHS) FPG is used more broadly throughout the Federal Government.\179\ Using FPG also promotes internal consistency within USCIS since this measure is statutorily required for other eligibility determinations. See INA secs. 204(f)(4)(A)(ii) and 213A(h), 8 U.S.C. 1154(f)(4)(A)(ii) and 1183a(h). While DHS acknowledges that it is possible to mitigate confusion through training and public engagement, a more complicated legal determination will still tend to result in a higher rate of erroneous or lengthy filings and adjudications. Noting that many low- income requestors may lack access to legal assistance and face additional barriers to properly filing immigration forms, DHS believes that this population is better served by keeping the fee waiver process simple by using the FPG. Finally, DHS notes that using HUD MFI by State or county would not guarantee equitable results, since the cost of living can vary greatly within individual States and counties. --------------------------------------------------------------------------- \179\ See, e.g., Inst. for Research on Poverty, ``What Are Poverty Thresholds And Poverty Guidelines?,'' https://www.irp.wisc.edu/resources/what-are-poverty-thresholds-and-poverty-guidelines/ (last visited Aug. 14, 2023). --------------------------------------------------------------------------- Comment: A commenter asked USCIS to begin using the Supplemental Poverty Measure (SPM) instead of the Federal Poverty Level (FPL) to determine who qualifies for a fee waiver, without explaining why the SPM is preferable. The commenter recommended that fee waivers be made available to any household earning less than 200 percent of the SPM. Response: DHS declines to adopt the SPM for assessing eligibility for fee waivers because the SPM was not designed as a tool for assessing individual eligibility for public benefits. ``The SPM is considered a research [[Page 6259]] measure, because it is designed to be updated as techniques to quantify poverty and data sources improve over time, and because it was not intended to replace either official poverty statistics or eligibility criteria for anti-poverty assistance programs.'' \180\ Determining whether a particular individual falls above or below the SPM would require a complex calculation of numerous factors that would increase administrative costs and be susceptible to error.\181\ --------------------------------------------------------------------------- \180\ Joseph Dalaker, Cong. Research Serv., R45031, ``The Supplemental Poverty Measure: Its Core Concepts, Development, and Use,'' (July 19, 2022), https://crsreports.congress.gov/product/pdf/ R/ R45031#:~:text=The%20Supplemental%20Poverty%20Measure%20(SPM,a%20spec ified%20standard%20of%20living. \181\ See generally Joseph Dalaker, Cong. Research Serv., R45031, ``The Supplemental Poverty Measure: Its Core Concepts, Development, and Use,'' (July 19, 2022), https:// crsreports.congress.gov/product/pdf/R/ R45031#:~:text=The%20Supplemental%20Poverty%20Measure%20(SPM,a%20spec ified%20standard%20of%20living. --------------------------------------------------------------------------- Comment: A commenter noted that even though there is no requirement that an individual submit their taxes, USCIS routinely denies fee waivers based on applicants' statements, where taxes are unavailable, or where the taxes indicate the applicant is under the poverty threshold. Another commenter similarly stated that, in practice, fee waivers are mostly denied when sending in pay stubs or W-2 forms. The commenter further remarked that fee waiver adjudicators routinely request only a tax return be submitted to establish income. The commenter stated that the rule should more explicitly clarify that there is no requirement to submit a tax return to document fee waiver eligibility. Response: DHS declines to modify the rule as recommended by the commenter because it is unnecessary. Per the revisions to Form I-912 published with this rule, an individual requesting a fee waiver may establish their household income through different forms of documentation, including Federal income tax returns, a W-2, or paystubs. USCIS denies fee waiver requests that are incomplete and does not issue RFEs for Form I-912. In FY 2022, USCIS approved 84 percent of fee waiver requests (448,702 out of 532,417). See Table 6. c. Financial Hardship Comment: A commenter remarked that fee waivers are ``almost impossible'' to obtain based on hardship, regardless of the quality or amount of documentation submitted to support such a request. Another commenter stated that requests for fee waivers based on ``financial hardship'' for low-income and no-income individuals have been universally denied, without clarity provided as to the specific reasons for denial or what evidence would be considered sufficient. Response: Although USCIS does not have approval or rejection data related to the specific criteria for fee waivers, DHS notes that in FY 2022, USCIS approved 84 percent of fee waiver requests (448,702 out of 532,417). See Table 6. To help prevent erroneous denials of fee waiver requests based on financial hardship, the revised Form I-912 contains a non-exhaustive list of examples of causes of financial hardship. DHS intends to issue guidance clarifying that the burden of proof for inability to pay is a preponderance of the evidence, and that an officer may grant a request for fee waiver so long as the available documentation supports that the requestor is more likely than not unable to pay the fee. USCIS regularly trains its staff to avoid erroneous denials of fee waiver requests. Comment: A commenter supported the proposal to provide USCIS officers a larger, non-exhaustive list of circumstances that may constitute a financial hardship. The commenter stated that its staff often receive fee waiver denials despite having provided evidence that clearly points to a significant financial hardship. The commenter said that, by adding such obvious forms of hardship as ``significant loss of work hours and wages,'' ``natural disaster,'' and ``victimization,'' DHS will provide much-needed guidance to both applicants and USCIS officers. In addition, the commenter stated that the proposal to include a catch-all category of hardship for ``[s]ituations that could not normally be expected in the regular course of life events'' will also provide applicants a more reliable basis on which to demonstrate that a particular event has led to hardship. Another commenter also supported the proposed rule's suggested evidence of financial hardship, including an affidavit from a religious institution, nonprofit, hospital, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the requestor's financial situation. The commenter recommended that such affidavits include those from legal aid agencies serving low-income populations, documenting their assessment that a requestor is low-income with minimal assets and consequently eligible for their free legal services. In addition, the commenter said the term ``support services'' should be understood to include such legal services, as many legal aid agencies provide holistic services, which include helping clients access public benefits, health care, and housing. Moreover, the commenter said including legal services as ``support services'' would lead to more consistent adjudication of fee waiver requests for low-income applicants. Response: DHS notes that, the current, proposed, and final instructions for Form I-912 permit that an affidavit describing the person's financial situation from a legal aid agency serving low-income populations may be acceptable evidence of a requestor's financial situation if they lack income. See 88 FR 402, 458 (Jan. 4, 2023) (``If the requestor is receiving support services, an affidavit from a religious institution, nonprofit, hospital, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the requestor's financial situation.''). Comment: One commenter suggested that mental or physical illness impacting an applicant's ability to work and pay the filing fee be explicitly included as a factor or incorporated into the proposed factors of ``victimization'' or ``situations that could not normally be expected in the regular course of life events.'' Otherwise, the rule could be read to exclude illnesses causing serious financial hardship and inability to pay filing fees if they are not an ``emergency or catastrophic.'' Response: Upon further review, DHS has incorporated this recommendation into the revised Form I-912 instructions. DHS believes that a mental or physical illness that impacts an individual's ability to work may amount to a similar level of financial hardship (depending on the individual's household income, financial assets, and other factors) as other examples listed in the form instructions, and therefore may qualify as a financial hardship with documentation of inability to work and information on income. d. Other/General Comments on Criteria and Burden of Proof Comment: Several commenters stated that there are many people who do not qualify for fee waivers and do not have the financial means to afford the fees. Another commenter said, at a minimum, USCIS should offset the proposed fee increases by raising the eligibility threshold for fee waivers, and then provide means-tested fee waivers. Additionally, an individual commenter stated that underprivileged families [[Page 6260]] should only have to pay a reduced fee or be given a fee waiver. Response: DHS acknowledges commenters' concerns and believes that this final rule contains multiple provisions that increase the availability of fee waivers and reductions for those unable to pay. The rule codifies DHS policy guidance that a requestor will generally be found unable to pay if they receive a means-tested benefit, have a household income below 150 percent of the FPG, or are experiencing financial hardship. See 8 CFR 106.3(a)(1)(i). As discussed above, this rule broadens the ways that a requestor can establish eligibility through a fee waiver by allowing a household child's receipt of certain means-tested public benefits to demonstrate the parent's inability to pay. The final rule reduces the N-400 fee for applicants whose household income is less than or equal to 400 percent of the FPG. See 8 CFR 106.2(b)(3)(ii). The revised Form I-912 offers additional guidance on the types of evidence of financial hardship, which DHS believes will provide flexibility and reduce the burden for individuals seeking fee waivers. The form also clarifies when certain household members' income will not be considered in assessing whether a requestor is unable to pay. The final rule further addresses individuals' inability to pay by increasing the number of forms that are fee exempt. See Table 5B. Comment: A couple of commenters supported DHS continuing to base inability to pay on a ``range of evidentiary standards,'' including means-tested benefits, household income using the FPG, or financial hardship, but said such standards should not be applied categorically and must come with adequate guidance. The commenters said the current regulation provides insufficient guidance regarding evidence, given that many applicants for fee waivers are unlikely to have significant evidence, or the type of evidence USCIS requests to prove lack of income (as proving lack of income involves proving a negative). They said DHS should continue to allow officers to grant a request for a fee waiver in the absence of some of this documentation so long as the available documentation supports that the requestor is more likely than not unable to pay the fee, as allowed under the preponderance of the evidence standard. One of these commenters said more guidance should be provided regarding documentation, including training officers in the types of situations that, while they may not lend to written evidence that can be submitted to USCIS, support the need for a fee waiver as well as the underlying humanitarian claim. The commenter said DHS should not only provide a list of possible evidence that includes both common proofs of financial need, such as taxes, pay stubs, and bills, but also informal types of acceptable evidence, such as written letters from roommates, affidavits from social or legal services organizations that condition services on lack of income, handwritten bills, and the like. Moreover, the commenter said DHS should also provide clear instructions that an officer can or should waive a fee upon a sworn statement from the applicant that they are a victim of abuse or exploitation. Another commenter said the rule should specify preferred and alternative types of evidence rather than mandatory evidence. Another commenter suggested USCIS clarify in the form instructions and guidance that these documents are non-exhaustive and that USCIS will consider other relevant evidence. A commenter stated fee waivers should be readily accessible with reasonable documentary requirements but did not specify what requirements they recommend. Response: Under the current fee rule and USCIS policy, no type of evidence is categorically required to show eligibility for a fee waiver. The rule provides three different means of establishing inability to pay, see 8 CFR 106.3(a)(1)(i), and the Form I-912 instructions offer multiple examples of evidence that can be submitted in support of a fee waiver request. USCIS guidance will clarify that individuals seeking a fee waiver only have to establish eligibility by a preponderance of the evidence. See 88 FR 402, 458 (Jan. 4, 2023). However, DHS declines to adopt the commenter's recommended language that certain required documents are non-exhaustive, as this would be inappropriate for certain ways of proving inability to pay. For example, to confirm receipt of a means-tested benefit, a requestor is required to submit documentation that they are currently receiving a means-tested benefit that includes their name, the agency granting the benefit, type of benefit, and indication that the benefit is currently being received. Comment: A couple of commenters wrote that they supported the implementation of more descriptive guidelines for the information collection requirements for the Form I-912. One commenter remarked that the new requirements are more realistic and flexible for applicants, reasoning that lower income applicants run into challenges when collecting documentation to support their fee waiver, for example by lacking a safe place to store confidential information. The commenter further remarked that, coupled with the preponderance of the evidence standard, evidentiary guidance will also help potential applicants understand upfront whether they qualify for a fee waiver. Another commenter agreed with DHS broadening the list of documents that are sufficient to show that a person does not have any income--a circumstance that is frequently difficult to document--because it will reduce the documentary burden on applicants in the most precarious financial situations, while also reducing the burden on USCIS to review repeated fee waiver requests after denials. Response: DHS appreciates the commenters' feedback. Comment: A commenter stated that, while USCIS may waive the fee for certain immigration benefit requests when the individual requesting the benefit is unable to pay the fee, the rules provide no certainty even when the applicant provides the very types of inability-to-pay information identified in the regulations--applicants are merely ``eligible'' for a fee waiver if they meet the criteria. The commenter asked USCIS to modify the rule to clarify that ``evidence of any of the three grounds is conclusive proof of eligibility for a fee waiver.'' Response: DHS understands that the commenter wants more certainty for when a requestor will or will not have their fee waived, but we decline to adopt the commenter's proposal to treat any evidence of one of the three grounds as conclusive proof. Even though the fee statute does not mention fee waivers, DHS has interpreted the discretion it vests in the agency to allow fee exemptions or waivers subject to certain conditions or criteria. Section 245(l)(7) of the INA requires DHS to permit certain requestors (those applying ``for relief through final adjudication of the adjustment of status for a VAWA self-petitioner and for relief under sections 1101(a)(15)(T), 1101(a)(15)(U), 1105a, 1229b(b)(2), and 1254a(a)(3) of [Title 8]'') to ``apply for'' fee waivers. 8 U.S.C. 1255(l)(7) (emphasis added). The statute, however, does not specify any standard for approving applications for such discretionary waivers. In this rule, discretionary waivers of fees are limited to situations where the party requesting the benefit is unable to pay the prescribed fee. 8 CFR 106.3(a)(1)(i). A person can demonstrate an inability to pay the fee by establishing receipt of a means-tested benefit at the time of filing, household income at or below 150 percent of the [[Page 6261]] FPG at the time of filing, or extreme financial hardship due to extraordinary expenses or other circumstances that render the individual unable to pay the fee. 8 CFR 106.3(a)(1)(i). Finally, a person must submit a request for a fee waiver on the form prescribed by USCIS in accordance with the instructions on the form. 8 CFR 106.3(a)(2). USCIS generally applies a burden of proof of preponderance of the evidence for the information provided with immigration benefit requests.\182\ While DHS has increased the availability of fee waivers and clarified their requirements in this rule, it remains the requestor's burden to establish that they are more likely than not eligible for a fee waiver. See 88 FR 458. Because the fee statute does not specify any standard for approving applications for such discretionary waivers, DHS will retain the ability to determine that an individual who meets the eligibility requirements for a fee waiver does not merit a waiver in the exercise of discretion. See 8 CFR 106.3(a). --------------------------------------------------------------------------- \182\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``USCIS Policy Manual,'' Vol. 1, ``General Policies and Procedures,'' Part E, ``Adjudications,'' Chp. 4, ``Burdens and Standards of Proof,'' https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-4 (last updated Nov. 8, 2023). --------------------------------------------------------------------------- Comment: Commenters stated that DHS should modify its rules so that a fee waiver request would be automatically approved if not decided within 45 days. Response: DHS declines to impose the commenter's deadline on USCIS adjudication of fee waiver requests. Imposing an arbitrary deadline on fee waiver reviews would require USCIS to allocate limited resources to prioritize fee waiver requests above most other adjudicative actions to prevent lost revenue and risk its ability to maintain adequate service levels. USCIS must retain the flexibility to assign resources where they are needed. Although USCIS received 532,417 fee waivers in FY 2022, an average of over 2,000 per workday, most fee waivers are adjudicated within 8 to 10 days at the Lockboxes and 90 percent are completed within 15 days. DHS acknowledges that some fee waiver requests took longer to adjudicate during the COVID-19 pandemic, but DHS is working diligently to deliver timely service. Comment: Multiple commenters said fee waiver eligibility based on the stipulated bases should be incorporated into the regulatory text. A commenter said the preamble recites the current three grounds for fee waivers since 2010 but the actual proposed code section only refers to inability to pay and does not specify these specific grounds. To prevent future confusion or interpretations, the commenter said the three grounds should be mentioned in the code itself since the preamble is not legally enforceable. Likewise, another commenter recommended that USCIS include the standards in the final rule so that they are codified and less susceptible to being modified by a future administration. The commenter said doing so would also formalize the adoption of such standards, which have been in use for over a decade. A commenter asked USCIS to incorporate the eligibility criteria into the Policy Manual at Volume 1, Part B, Chapter 4, as well as the proposed regulations. Response: After considering the public comments, DHS has decided to codify the three means of demonstrating eligibility for a fee waiver at 8 CFR 106.3(a)(1)(i). USCIS intends to update the Policy Manual to reflect this when the final rule takes effect. However, while meeting any of the three criteria will make a requestor presumptively eligible for a fee waiver, USCIS will still retain the discretion to approve or deny a fee waiver. Denial of a fee waiver will result in rejection of a benefit request and neither the fee waiver denial nor the rejection may be appealed. Comment: A commenter suggested that USCIS include receipt of financial aid through the Free Application for Federal Student Aid (FAFSA) as an additional way to prove eligibility for a fee waiver. Response: DHS declines to adopt the commenter's proposal because there are many types of student financial aid obtainable by filing the FAFSA that do not reflect significant financial need and may not meet the definition of means-tested benefit as stated in this final rule, see 8 CFR 106.1(f)(3), such as grants, merit scholarships, and student loans.\183\ --------------------------------------------------------------------------- \183\ See U.S. Dep't of Educ., ``Federal Student Aid, Types of Financial Aid: Loans, Grants, and Work-Study Programs,'' https://studentaid.gov/understand-aid/types (last visited Aug. 15, 2023). --------------------------------------------------------------------------- Comment: Multiple commenters recommended that USCIS adopt an appeals or formal review process for fee waiver denials. Response: DHS also declines to adopt an appeals process for fee waiver denials because this would compound the time and costs of adjudicating fee-waivers and require that additional costs be transferred to fee-paying requestors. Those who believe that their fee waiver request was wrongfully denied may refile their request.

4. Authority

Comment: One commenter recommended that USCIS limit the Director of USCIS' discretion to authorize additional fee waivers, as put forth in the 2019/2020 fee rule. The commenter remarked that limiting such discretion is necessary to limit ``politically motivated abuse'' of fee waiver eligibility policies and protect fee-paying applicants from unfair cost increases to cover such abuse. Response: This rule retains the feature of the prior 2019/2020 fee rule that permits the USCIS Director to delegate the discretionary fee waiver authority only to the USCIS Deputy Director.\184\ USCIS declines to adopt the additional restrictions on discretionary waiver authority that were contained in the 2019/2020 fee rule. The commenter did not cite any past examples of ``politically motivated abuse'' of this discretionary authority. DHS believes that maintaining the authority for this extraordinary relief with the leaders of USCIS, coupled with the requirement that the authority only be exercised when consistent with the law, will ensure that it is administered consistently, timely, and responsibly. --------------------------------------------------------------------------- \184\ Compare 8 CFR 106.3(c), with 8 CFR 106.3(b) (Oct. 2, 2020). ---------------------------------------------------------------------------

5. Requiring Submission of Form I-912

Comment: Multiple commenters expressed concern that requiring the Form I-912 and not allowing applicants to make the request for a fee waiver via a written request would create an additional burden for applicants. One commenter requested that fee waivers remain expansive such that any written requests remain permitted. Some commenters asserted that, if an individual can successfully demonstrate the need for the fee waiver via a written request, USCIS should continue to accept them, and that requiring Form I-912 reduces flexibility for applicants with special circumstances. One commenter asserted that there would be a substantial time burden to complete the Form I-912 in lieu of an affidavit regarding their client's income and expenses, while another commented referred to fee waiver process as long and difficult.'' Another commenter said that printing, translating, completing, and sending the form requires additional costs that applicants who are in financial need likely do not have. Another commenter added that certain requestors may lack access to printers, internet services, or other infrastructure. The commenter also stated that the proposed Form I-912 is a complex nine-page form, with eleven pages of [[Page 6262]] instructions, and several of the form's questions may not apply to the requestor or require significant additional explanation that is better suited for an affidavit. The commenter added that requiring Form I-912 creates an unnecessary burden on pro se survivors, survivors with limited English proficiency, and high caseload service providers. A different commenter said the proposal places an undue burden especially on the most vulnerable groups who would otherwise qualify for immigration benefits. Other commenters said that requiring Form I-912 would disproportionally affect pro se applicants and those with limit English skills, and therefore allowing fee waiver requests without Form I-912 would align more closely with the ``inability to pay'' standard. Another commenter predicted that the proposed rule would require USCIS to scan and review extra pages of the Form I-912, and that USCIS would incur significant mailing costs due to rejections resulting from confusion around the complex form. One commenter asserted that allowing individuals to request a fee waiver via written request instead of Form I-912 would address the burden of COVID-19 on undocumented and immigrant communities that require access to forms to receive USCIS benefits. Response: After considering public comments in response to the proposed requirement to submit Form I-912, DHS will continue to allow written statements in lieu of submitting Form I-912. DHS acknowledges that requiring submission of Form I-912 could create an additional burden on certain requestors, particularly those struggling financially. See 88 FR 402, 458 (Jan. 4, 2023). DHS also recognizes that some requestors may experience an extra burden due to that printing, translating, completing, and sending the form requires additional costs that applicants, particularly those who are struggling financially. DHS also recognizes these applicants may need additional flexibilities, which may improve access to immigration benefits consistent with E.O. 14012, 86 FR 8277 (Feb. 5, 2021). Because less than one percent of fee waivers currently are requested by written request instead of Form I-912, it is unlikely that continuing to allow written requests will significantly impact USCIS operations. See 88 FR 402, 458 (Jan. 4, 2023). For these reasons, this final rule maintains the current effective regulation that allows requestors to obtain a fee waiver by written request without filing Form I-912. Comment: In response to the proposed rule's statement that more than 99 percent of fee waiver requested are submitted with Form I-912, multiple commenters stated it is preferable that the remaining requestors receive an RFE instead of a denial. These commenters suggested that these RFEs be accompanied by information related to the Form I-912 ``as a means of proactively addressing potential confusion'' regarding eligibility criteria. The commenters stated that this would be more consistent with E.O. 14012 and better facilitate access to immigration benefits. Response: For the reasons noted previously, this final rule allows submission of fee waiver requests via written request instead of using Form I-912. However, DHS will not issue RFEs in response to insufficient fee waiver requests. Holding and monitoring cases where an RFE was sent for a timely response would add burden to what is an already burdensome process for USCIS. USCIS will continue to review training and decision notices to improve adjudications of fee waivers and provide additional information for requestors.\185\ --------------------------------------------------------------------------- \185\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Additional Information on Filing a Reduced Fee Request,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-reduced-fee-request (last updated Oct. 31, 2023). --------------------------------------------------------------------------- Comment: Multiple commenters recommended improvements to the Form I-912. One commenter stated that the form is inefficient and suggested reducing the number of unused pages by making them attachments rather than sections. Another commenter recommended that USCIS eliminate questions on the Form I-912 that are not relevant to fee waiver eligibility and ensure that supporting documentation is considered liberally. For example, the commenter suggested two questions be eliminated: Part 1, Question 2, which requests the applicant's immigrant or non-immigrant status; and Part 2, Question 6, which requests the applicant's Social Security number. Response: DHS appreciates commenters' feedback regarding the length of Form I-912, Request for Fee Waiver. Depending on their ground of eligibility, as indicated on the form and instructions, requestors do not need to fill out every section of Form I-912. However, DHS does not believe that these unused sections, which can be easily skipped, create a substantial paperwork burden for requestors. Requiring requestors to locate and attach a separate addendum depending on their ground of eligibility could create a greater paperwork burden. DHS notes that immigration status is relevant to eligibility because, for example, some fee waivers are specific to the requestor's immigration status. USCIS is revising the USCIS Form I-912 to reduce the time and cost burden to respondents. The Social Security number data field will be removed as part of those edits. DHS believes that a requestor's Social Security number no longer serves a purpose because Internal Revenue Service (IRS) tax return and tax account transcripts redact the filer's Social Security number. For further information on compliance with the Paperwork Reduction Act, see Section V.J of this preamble. Comment: Another commenter wrote that low-income naturalization applicants who currently require a fee waiver are barred from applying for naturalization online because the Form I-912 cannot be filed online. The commenter stated as a matter of equity, both online and paper filings should be available to everyone, regardless of their income status. The commenter concluded that without an option for online filing of the Form I-912, paper filings for the Form N-400 would continue to cause inefficiencies. Response: USCIS continues to work on incorporating Form I-912 and all forms into its online filing platforms. Comment: A commenter stated that the Form I-912 is not statutorily required. The commenter further remarked that USCIS does not point to evidence that requiring Form I-912 for fee waiver requests produce more consistent results or relevant evidence in assisting fee waiver determinations. Response: For the reasons noted previously, this final rule allows submission of fee waiver requests via written request instead of using Form I-912. With regards to the assertions made by the commenter, DHS notes the following: The INA authorizes the Secretary to ``prescribe such forms of [...] papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority.'' INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). The Form I-912 and other USCIS forms are used to solicit information relevant to benefit requests and facilitate standardized adjudication in a timely manner. As previously indicated, most requestors submit Form I-912 to request fee waivers. A 2019 paper showed that standardization of the fee waiver for citizenship applications in 2010 raised naturalization rates among low- income immigrants, and these gains were particularly sizable among those [[Page 6263]] immigrants who typically face higher hurdles to accessing citizenship.\186\ --------------------------------------------------------------------------- \186\ Vasil Yasenov, et al., ``Standardizing the fee-waiver application increased naturalization rates of low-income immigrants,'' 116 (34) Proc. Nat'l Acad. Sci. U.S. 16768 (2019). --------------------------------------------------------------------------- Comment: A commenter recognized the need to create a more uniform policy for adjudicating requests for fee waivers. However, the commenter expressed concern that the list of expenses outlined in the Form I-912 fails to take into consideration necessary expenses often incurred by their clients and does not fairly represent their ``inability to pay'' the filing fees required. The commenter did not indicate what additional expenses should be included on the form. Response: DHS interpreters this comment to refer to Part 6, Item 3 (``Total Monthly Expenses and Liabilities'') of Form I-912. DHS notes that the list of expenses includes a check box for ``other,'' and additional lines where requestors can list expenses not included in the list. Requestors can also include additional information about expenses in Part 11 (``Additional Information'').

6. Evidence for VAWA, T, and U Requestors

Comment: Multiple commenters wrote in support of fee waivers for VAWA self-petitioners, as well as for T and U nonimmigrant status requestors. One commenter wrote that fee waivers help remove forms of coercion and control by human traffickers and abusive individuals by providing life-saving opportunities for victims of crime to escape these situations and access long-term stability. The commenter remarked that these benefits allow victims of crime to support law enforcement investigations that help prevent and punish serious crimes. Another commenter stated the importance of fee waivers as a tool for survivors to recover from financial abuse and that fee waivers make it possible for survivors to ensure their safety or necessities when applying for immigration relief. Response: DHS agrees that the availability of fee waivers and fee exemptions for vulnerable populations is important. DHS remains committed to the goals of its humanitarian programs and to providing fee waivers and fee exemptions for these populations as outlined in this final rule. See 8 CFR 106.3. Comment: One commenter expressed support for USCIS' proposed clarification that an applicant is eligible for a fee waiver where they demonstrate inability to pay by a preponderance of the evidence. However, the commenter asked USCIS to adjudicate fee waiver requests for immigration benefits associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status under the ``any credible evidence'' standard. The commenter concluded that the evidentiary standard for receipt of a fee waiver should not be more stringent than the evidentiary standard for the legal protections Congress created for survivors under VAWA and the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA). Response: DHS acknowledges the difficulties that VAWA, T, and U requestors may face in obtaining evidence in support of fee waiver requests, which is why DHS has increased the number of fee-exempt forms for these groups in the final rule. See Table 5B; 8 CFR 106.3(b). For these fee-exempt requests, VAWA, T, and U requestors do not need to sustain any burden of proof to avoid paying a fee, which is consistent with the VTVPA. However, DHS believes that ``preponderance of the evidence'' remains the appropriate standard for adjudicating other fee waiver requests by VAWA, T, and U requestors. Most USCIS fee waiver requests involve naturalization and citizenship-based applications (N- Forms), which are filed multiple years after the requestor has received their protection-based form of relief and obtained LPR status. Mindful of the difficulties that victim-based categories may continue to face in obtaining evidence to support fee waiver requests, DHS has provided flexibilities for VAWA, T, and U populations in requesting fee waivers. For example, the revised Form I-912 instructions issued with this rule provide that if a household member is an abuser or human trafficker, then their income will not be included in measuring the requestor's household income. In addition, the instructions also list victimization as an example of financial hardship causing a requestor to be unable to pay. Further, if a VAWA, T, or U requestor is unable to obtain documentation, they can explain why and submit other evidence to demonstrate their eligibility as provided in the Form I-912 instructions. However, the burden of proof remains on the individual who is requesting a fee waiver and DHS will not presume that a benefit request that is not already exempt from a fee should automatically receive a fee waiver.

7. Cost of Fee Waivers

Comment: One commenter stated that, in recent years, USCIS has transferred significant costs to fee-paying applicants and beneficiaries as the result of an overbroad fee waiver policy, and estimated foregone revenue has increased significantly. The commenter said that, in this proposed rule, DHS did not report how much revenue USCIS anticipates foregoing because of fee waiver projections. Response: DHS believes that continued fee waivers for certain populations provides a crucial avenue for those who would have otherwise not been able to submit a request. Table 6 below summarizes historical fee waiver volume. Contrary to the commenter's assertion, waived fees as a proportion of IEFA revenue has been stable over time, and current levels are significantly below those in FYs 2015-2017. This does not demonstrate an overbroad fee waiver policy where waived fees have increased significantly. [[Page 6264]] [GRAPHIC] [TIFF OMITTED] TR31JA24.027 Comment: A commenter requested that USCIS ensure that fee-paying applicants do not bear the costs of immigration benefit requests where fee waivers are inappropriate or unnecessary. The commenter recommended that USCIS adopt a different approach, consistent with the ``beneficiary-pays'' principle, that considers whether a fee waiver is either statutorily required or otherwise appropriate given the nature of the immigration benefit sought, particularly whether such beneficiaries are subject to the public charge ground of inadmissibility. The commenter wrote that INA sec. 286(m), 8 U.S.C. 1356(m), does not require that DHS provide any services without charge, but that the TVPRA requires DHS to permit fee waivers for certain applications. The commenter stated that USCIS should limit fee waivers to immigration benefits for which USCIS is required by law to consider a fee waiver, as was put forth in the 2019/2020 fee rule. They added that USCIS could allow fee waivers for humanitarian programs and applicants not subject to the public charge ground of inadmissibility or affidavit of support requirements under INA sec. 213A, 8 U.S.C. 1183a, including petitioners and recipients of Special Immigrant Juvenile (SIJ) classification and those classified as Special Immigrants based on an approved Form I-360. The commenter stated that USCIS should continue to preclude fee waivers from individuals that are required to have financial means for the status or benefit sought. Another commenter asserted that it is unfair that one out of eight petitions receive a fee exemption or waiver, and that humanitarian goals should be funded by Congress or DHS general appropriations rather than shifting lost revenue to other program fees. --------------------------------------------------------------------------- \187\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Use of Fee Waivers, Fiscal Year 2023 Report to Congress'' (June 20, 2023), https://www.dhs.gov/sites/default/files/2023-08/23_0727_uscis_use_of_fee_waivers_q1.pdf. Not all fee waiver applications are adjudicated in the same fiscal year that they are received. Likewise, not all approvals and denials occur in the same fiscal year in which a fee waiver request is filed. Thus, the number of approvals and denials does not equal fee waiver request receipts. \188\ Note that the budgetary impact of fee waivers is less than the total amount of waived fees, as it would be unreasonable to expect the same volume of filings absent the availability of fee waivers. Available USCIS fee waiver data lack the granularity necessary to delineate waived fees in cases of forms with multiple filing fees. The higher fee is assumed to estimate the waived fees. Additionally, the fee schedule change in December 2016 and the timing of fee waiver approvals may slightly skew FY 2017 waived fee estimates because of fee waiver adjudication timeframes (see footnote 16). Finally, automatic biometric services fee waivers associated with underlying forms that require biometrics are not captured adequately and are underreported. --------------------------------------------------------------------------- Response: For reasons discussed in the proposed rule, see 88 FR 402, 424-426 (Jan. 4, 2023), and in section IV.C.4 of this preamble, DHS has decided to shift away from the beneficiary-pays model that was the primary objective of the 2019/2020 fee rule, and more toward the ability-to-pay approach that has historically guided USCIS fee schedules. While INA sec. 286(m), 8 U.S.C. 1356(m), does not require that DHS provide any services without charge, the statute contemplates that DHS would regularly do so for asylees and similarly situated classes of applicants. DHS considers this to be the more equitable approach in setting fees. In deciding which forms should be eligible for a fee waiver, DHS considered whether each waiver is statutorily required or otherwise appropriate given the nature of the immigration benefit sought, including whether the requestor would be subject to the public charge ground of inadmissibility. A fee waiver is unavailable in the case of immigration benefit requests that require demonstration of the applicant's ability to support themself, or that are based on a substantial financial investment by the petitioner.\189\ Most fee- waivable forms involve humanitarian immigration categories in recognition of the financial difficulties faced by members of these groups.\190\ DHS has generally made citizenship and naturalization forms eligible for waived and reduced fees in recognition of the social and economic benefits that the United States receives from new citizens. --------------------------------------------------------------------------- \189\ In 2007, regulations considerably limited which application types could apply for fee waivers from almost all of them to roughly one-third of them. See 72 FR 29851, 29874 (May 30, 2007). DHS made no changes to the types of applications that could apply for fee waivers in the 2010 and 2016 fee rules. \190\ While fee waivers are not generally available in employment-based cases, due to the unique circumstances present in the CNMI, an exception is Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, for an employer to petition on behalf of CW-1 nonimmigrant beneficiaries in the Commonwealth of the Northern Mariana Islands (CNMI). See 74 FR 55094, 55098 (Oct. 27, 2009). --------------------------------------------------------------------------- [[Page 6265]]

8. Other Comments on Fee Waivers

Comment: A few commenters stated that the fee waiver process is lengthy or difficult. One commenter said that DHS should simplify the process for obtaining fee waivers to remove unnecessary barriers, without specifying how the process should be simplified or what barriers should be removed. Another commenter stated that the process of obtaining the requisite documentation to file a fee waiver request is difficult and delays the process of submitting applications by weeks or months. They also wrote that ability to work is often contingent upon obtaining certain immigration benefits, which creates financial hardship for applicants. Another commenter stated that fee waivers are not automatic and often add more time to an application, which negatively impacts immigrants in desperate situations. Response: DHS acknowledges that obtaining a fee waiver requires the submission of evidence demonstrating the inability to pay that some requestors may find burdensome. Nevertheless, approving fee waivers without evidence of inability to pay would pose a fiscal risk to USCIS. Thus, DHS has decided that it will not approve fee waivers without determining the applicant is eligible under the fee waiver regulations. In this final rule, DHS has provided additional fee exemptions, see Table 5B, and updates to the Form I-912 for additional efficiencies and to minimize its burden, see 88 FR 402, 458 (Jan. 4, 2023). Form I-912 has an estimated time completion of one hour and ten minutes. USCIS strives to continually improve its case processing so that fee waivers can be adjudicated in a timely, effective manner while balancing access, affordability, and financial sustainability. Comment: Multiple comments expressed concerns about the effect of denied fee waiver requests on application filing dates. One commenter recommended that USCIS treat the date that forms are received together with a fee waiver request as the official filing date ``for the Motion, Appeal or Case.'' The commenter asserted that current procedures and practices can result in denial of due process to indigent and low- income immigrants who seek fee waivers and recommended that USCIS should allow the applicant to recapture the initial filing date if they pay the required fee within 30 days of a fee waiver denial, which is similar to State courts' approach in civil or family cases. The commenter asserted that the USCIS' current approach violates VAWA confidentiality protections under 8 U.S.C. 1367 for immigrant crime victims because their cases are not logged as protected cases in USCIS systems until their fee waiver is granted. Another comment stated that USCIS' policy of not retaining a filing date for an application with a rejected fee waiver leads to low-income individuals facing difficult situations in which the only way to ensure an application will be filed before a relevant deadline is to pay a fee that they are financially unable to afford. Some commenters stated that denied Form I-730 petitioners often file the Form I-290B to seek reconsideration of erroneous denials. If the fee waiver for the Form I-290B is denied and the individual is unable to pay the fee, the individual is effectively denied the opportunity to contest the denial of the Form I-730, and the delay in process may result in the petitioner losing the option to resubmit the Form I-730 within the 2-year deadline. Response: DHS considered all the suggestions made by these commenters but declines to adopt a policy of treating a denied fee waiver request as establishing a filing date for the underlying form for similar reasons that it does not accept an improperly filed Form I- 130 or I-140 as establishing a priority date. See 8 CFR 204.1(b), 204.5(d). Were DHS to adopt such a policy, it would encourage the early filing of improperly completed forms to capture an advantageous filing or priority date. DHS regulations provide that the receipt date is the actual date of physical receipt at the location designated for filing such benefit request, with proper fee or approvable fee waiver request. 8 CFR 103.2(a)(7)(i). DHS disagrees that the regulation violates due process or 8 U.S.C. 1367 for a denied fee waiver request. In this final rule, DHS has further expanded the number of VAWA, T, and U-related forms that are fee exempt, see Table 5B, for which there will be no delay in applying protections under 8 U.S.C. 1367. For the remainder of VAWA, T, and U-related requests, the requestor should already be listed in USCIS systems as protected under 8 U.S.C. 1367. In the case of a Motion to Reopen for a denied Form I-730, Refugee/Asylee Relative Petition, if the original, timely-filed Form I-290B, Notice of Appeal or Motion, is rejected due to a denied fee waiver request, USCIS may exercise its discretion to accept a subsequent, untimely Motion to Reopen. See 8 CFR 103.5(a)(1)(i). However, in the case of a Motion to Reconsider for a denied Form I-730, if the original, timely-filed Form I-290B is rejected due to a denied fee waiver request, USCIS lacks discretion to accept a subsequent, untimely Motion to Reconsider. See 8 CFR 103.5(a)(1)(i). Comment: Several commenters expressed concern over USCIS fee waiver denials, stating the following: Denials generally give no specific information as to why the applicant's evidence was deemed insufficient and is accompanied by boilerplate lists of evidence that may be submitted, even when the individual has submitted such evidence. Clearer fee waiver denials would decrease the volume of fee waiver requests and help with backlog and efficiency. Regulations should require fee waiver denials to provide some reasoning to specifically describe why the submitted evidence was not considered sufficient and what additional evidence would be deemed adequate for the application. Denials task the applicant with the impossibility of proving a negative by reiterating that tax filings and paystubs are proof of income, yet individuals with no income may have no income tax filings due to earning less than the IRS income tax filing threshold, nor paystubs during the period of unemployment. Response: DHS acknowledges commenters' concerns that fee waiver denials do not receive a detailed, individualized denial letter. However, DHS must weigh this against the additional costs of individualized fee waiver denials and has decided to limit this cost in favor of the general expansion of fee exemptions and waivers contained in this rule. See Table 5B. As stated previously, USCIS receives over 2,000 fee waiver requests per workday and approves 84 percent of them. The current Form I-912 instructions allow requestors to provide evidence of lack of income by describing the situation that qualifies them for a fee waiver. The instructions also state that, if available, requestors may submit affidavits (e.g., from religious institutions, nonprofits, community-based organizations, or similarly recognized organizations) indicating that the requestor is currently receiving some benefit or support from the organization verifying (or attesting) to their situation. DHS will continue to review the fee waiver process for areas that may be improved. In general, if a fee waiver request is denied, the form may be resubmitted without prejudice with additional documentation in support of the fee waiver or with the fees. Comment: A few commenters said there is a lack of knowledge around fee [[Page 6266]] waiver eligibility and around the existence of fee waivers as a possibility for low-income individuals, which presents a barrier for those who are interested in applying for immigration benefits. The commenters stated that USCIS should accompany the proposed rule with public education efforts aimed at prospective applicants with clear, culturally sensitive, and multilingual information on fee waivers and the grounds for eligibility. The commenters further suggested USCIS include efforts used in the Interagency Strategy for Promoting Naturalization that was developed in E.O. 14012. Another commenter stated that creating more categories and avenues by which one can show proof for fee waivers does little if basic access and understanding on how to navigate forms is not there for the communities that need it most. Response: DHS agrees that it is important to alert potential requestors to the existence of fee waivers. Every form instruction for which a fee waiver is possible notifies the requestor of their ability to request a fee waiver. USCIS is removing the option for a written request in this rule for the reasons stated earlier. However, USCIS will continue to provide information about fee waivers for all its forms and the reduced fee for Form N-400 on our website,\191\ at stakeholder and public engagements and using other public education efforts. For example, USCIS routinely hosts local and virtual engagements on naturalization, in which we discuss fee waivers and the reduced N-400 fee.\192\ The Form G-1055, Fee Schedule, also identifies which USCIS forms are eligible for a fee waiver. --------------------------------------------------------------------------- \191\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Additional Information on Filing a Fee Waiver,'' https://www.uscis.gov/forms/filing-fees/additional-information-on-filing-a-fee-waiver (last updated Oct. 31, 2023); U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``Fact Sheet: Request for Fee Waivers for Form N-400,'' https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetI-912RequestforFeeWaiverForFormN-400.pdf (last visited Oct. 10, 2023). \192\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, ``USCIS Past Training Seminars,'' https://www.uscis.gov/citizenship/resources-for-educational-programs/register-for-training/uscis-past-training-seminars (last updated Sept. 20, 2023). --------------------------------------------------------------------------- Comment: A commenter asked USCIS to discontinue the different treatment of applications submitted with fees and with fee waivers. The commenter reasoned that their clients who request fee waivers often must wait noticeably longer than applicants who pay the filing fees to receive the receipt notices for their application. Moreover, the commenter stated, the delays in receipt notices has impeded their ability to timely seek prosecutorial discretion for clients in removal proceedings based on their pending applications for relief before USCIS. The commenter concluded that this different treatment causes harm to their most vulnerable clients. Response: USCIS strives to issue receipt notices in a timely manner for all forms. As discussed earlier in Section IV.E.4. of this preamble, USCIS adjudicates most fee waiver requests within days of receipt. However, it takes longer to issue a receipt for a form that is accompanied by a fee waiver request because fee payments clear almost immediately, while adjudicating the fee waiver request requires additional time to review the waiver request. This different treatment of fee waiver requests is justified by the additional processing steps that they require. Comment: Commenters stated that USCIS should improve the fee waiver process by training adjudicators on fee waivers and otherwise addressing erroneous rejections and delays in issuing receipts. Response: USCIS currently provides guidance and training to its officers on fee waivers. USCIS strives to continuously improve its training to reduce erroneous rejections and delays in receipts. DHS believes that codifying the rules for fee waiver eligibility and modifying the Form I-912 instructions will help to reduce erroneous rejections and delays.

F. Fee Exemptions

As discussed in the Changes from the Proposed Rule section, many commenters requested that DHS provide more fee exemptions and free services for humanitarian related benefit requests and DHS is providing more fee exemptions in the final rule. A summary of the current and new exemptions is provided above in Table 5A, 5B, and 5C.

1. Codification of Benefit Categories/Classifications With Exemptions/

No Fees Comment: In the proposed rule DHS proposed to include several fee exemptions that are provided in guidance or form instructions or statute in the Code of Federal Regulations, although that action was not necessary for the exemptions to continue in effect. A couple of commenters generally expressed support for USCIS' proposal to codify fee exemptions in regulations without providing rationale to support this position. Another commenter wrote that the proposed codification of benefit requests with no fees and exemptions is in line with DHS's ``best effort'' to include the ``benefits to the national interest'' when considering the fee schedule changes. Another commenter stated that codifying exemptions promotes stability and ease of access for applicants. One commenter further expressed appreciation for Tables 13A, B, and C in the proposed rule and suggested they be included in the final rule. Some commenters welcomed the proposal to codify the fee exemption of Form I-360 for SIJs. The commenters reasoned that this population is particularly vulnerable, has no ability to work, and, therefore, lacks the financial means to pay fees for immigration benefit applications. The commenters further remarked that this codification would align with Congress' goal to protect vulnerable children when it created the SIJ classification. A few commenters welcomed the codification of longstanding fee exemptions for those seeking humanitarian relief, including those applying for asylum, asylees, and refugees. Other commenters said the proposal to codify exemptions for these groups would be consistent with U.S. humanitarian values, as well as legal obligations under U.S. and international law to protect persons fleeing persecution. Multiple commenters welcomed DHS's proposal to codify in the regulations that there is no fee for Form I-589, Application for Asylum and for Withholding of Removal. A commenter wrote that they support the proposed codification, reasoning that it recognizes the importance of access to the asylum system, regardless of a person's financial situation. A couple of commenters stated that the codification would ensure that the United States remains among most parties to the 1951 Refugee Convention and 1967 Refugee protocol who do not charge a fee to apply for asylum. A few commenters wrote that the codification was welcome after the proposal to introduce a $50 asylum fee in the 2020 fee rule. A commenter stated that the previously proposed fee would have deterred those seeking protections afforded by Congress while creating vulnerabilities to trafficking and exploitation. Response: DHS appreciates the commenters' support of the codification of fee exemptions in regulations and did not make any changes in this final rule based on these comments. Comment: Several commenters welcomed DHS's plan to continue to provide a fee exemption for the initial filing of Form I-765 for asylees and those with pending asylum applications. One commenter agreed with DHS's determination that requiring a fee for the initial employment [[Page 6267]] authorization application would be unduly burdensome and would prevent some asylum seekers from obtaining lawful employment. Another commenter further reasoned that this approach aligns with the 1951 Convention Relating to the Status of Refugees, which requires ``sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals . . . .'' This commenter additionally wrote that providing fee-exempt access to employment authorization affords asylum seekers crucial opportunities to recover from trauma, pay for future immigration benefit fees, and access identification for physical and economic mobility. Another commenter further reasoned that access to employment authorization promotes children's health and well-being by providing protection from unsafe working conditions and exploitation as well as access to basic services. Similarly, a couple of commenters expressed support for continued fee exemptions for persons admitted or paroled as refugees, including the proposed exemptions for EAD renewal and replacement, Form I-131, Application for Travel Document, and Form I-590, Registration for Classification as Refugee. One of the commenters agreed with DHS's reasoning that continuing to facilitate access to employment authorization and travel documents for those admitted or paroled as refugees is consistent with the 1951 Convention and 1967 Protocol. The commenter further reasoned that making travel documents accessible, which is not an overly costly or burdensome process for USCIS, reflects the reality of refugees who have a need to travel outside the United States for work or other purposes that support U.S. interests, but cannot do so if they unable to obtain a passport from the country from which they sought refuge. Response: DHS appreciates the commenters' support of the codification of fee exemptions for refugee and asylees in regulation in this final rule. Comment: A commenter wrote that Form G-1055 contains a typographical error that, if left uncorrected, would lead U nonimmigrants to erroneously believe they are fee exempt from an initial Form I-765 based on a concurrently filed or pending Form I-485. Specifically, the proposed Form G-1055 states that U nonimmigrants seeking to adjust status under INA sec. 245(m) will pay a $0 fee for an initial Form I-765 under category (c)(9), which the commenter said does not reflect the proposed regulation and preamble. Response: Principal U nonimmigrants who are in the United States are exempt from fees associated with employment authorization when it is issued incident to status, and they are not required to file Form I- 765, Application for Employment Authorization, to receive an EAD. See 88 FR 460; 8 CFR 214.14(c)(7). Principal U nonimmigrants who are outside the United States are fee exempt for fees associated with employment authorization issued incident to status once they enter the United States and file Form I-765 (initial request under 8 CFR 274a.12(a)(19) and (20)). See 88 FR 460. In the proposed rule, DHS proposed to expand fee exemptions for persons seeking or granted U nonimmigrant status for all forms filed before filing Form I-485, Application to Register Permanent Residence or Adjust Status. See 88 FR 460-461. As explained in section II.C.9 of this rule's preamble, DHS further expands fee exemptions in this final rule for persons seeking or granted U nonimmigrant status for all forms related to the U nonimmigrant status or adjustment of status under INA sec. 245(l), 8 U.S.C. 1255(l), including an initial Form I-765 for an EAD based on having a pending Form I-485. See 8 CFR 106.3(b)(5); Table 5B. DHS believes that these additional fee exemptions, as well as the publication of a final rule Form G-1055 Fee Schedule, mitigate the commenter's concerns. Comment: A commenter discussed the current economic benefits of TPS, such as the tax revenue generated by TPS holders, and commended codifying the exemption for Form I-821 to secure the continuation of those benefits. Response: DHS appreciates the commenter's support of the codification of the fee exemption for Form I-821, Application for Temporary Protected Status, when filed by a TPS holder seeking re- registration, see 8 CFR 106.2(a)(50)(ii), and did not make any changes in this final rule based on these comments.

2. Proposed Fee Exemptions

a. General Support of Proposed Exemptions Comment: Some commenters expressed general support for the proposed expansion of fee exemptions for certain humanitarian programs without further rationale. Response: DHS maintains the fee exemptions as listed in the proposed rule and provides additional fee exemptions for certain humanitarian populations in this final rule. See Table 5B. Comment: Many commenters expressed broad support for the various proposed fee exemptions for VAWA self-petitioners, U nonimmigrant status petitioners and T nonimmigrant status applicants, petitioners for SIJ classification, and other vulnerable populations. One commenter reasoned that the proposed exemptions would increase access to immigration relief for low-income survivors, and thus more completely achieve the goals of humanitarian programs to provide stability and safety from abuse. Another commenter agreed with USCIS' assessment in the proposed rule that survivors of violence often experience financial abuse and have limited resources, even once they flee from their abusers. The commenter went on to cite research from DOJ, the Bureau of Justice Statistics (BJS), the Borgen Project, and others describing the relationship between domestic violence and financial hardship. Another commenter similarly cited research on the mental, psychological, financial, and legal challenges that survivors of violence face and stated that ensuring survivors' access to immigration benefits is essential to help them escape abusive situations and gain self- sufficiency following victimization. Citing the INA and the legislative history of VAWA and T and U nonimmigrant status, a commenter said the expanded fee exemptions would align with legislative trends and congressional intent in creating protections for certain victims of crime. The commenter added that expanded access to fee exemptions is consistent with E.O. 14012. Another commenter wrote that the proposed exemptions would align with congressional intent while citing an October 11, 2000, statement from Senator Hatch and TVPRA. Another commenter similarly suggested that the proposed exemptions would align with congressional actions to protect victims of trafficking and abuse and asked USCIS to retain the exemptions in the final rule. Response: DHS agrees that these populations are particularly vulnerable as victims of abuse or violence, and that, because of this victimization, many will lack the financial resources or employment authorization needed to pay for fees related to immigration benefits. DHS has maintained the proposed fee exemptions and provided additional fee exemptions for certain humanitarian populations in this final rule. See 8 CFR 106.3(b); Table 5B. Comment: Numerous commenters agreed that expanded fee exemptions would eliminate the need for groups that disproportionately experience [[Page 6268]] financial hardship, and therefore already require a fee waiver, to apply for such waivers. One commenter added that the proposed exemptions would reduce the length of time that applicants for survivor-specific forms of relief would have to wait for a fee waiver to be adjudicated and a receipt notice issued. Many commenters further reasoned that applying for fee waivers places undue burdens on vulnerable and pro se applicants to produce evidence and meet the filing requirements to obtain a favorable decision and access protections. For example, one commenter stated that many T nonimmigrant applicants lack evidence to support their fee waiver application, including tax forms, pay stubs, and bills in their own name. The commenter also described the harms for victims associated with waiver denials for failing to file proper forms or submit the desired evidence. Another commenter wrote that SIJs without LPR status do not qualify for means-tested benefits, and obtaining proper documentation of the receipt of benefits can be challenging for non- English-speaking populations navigating complex systems. The commenter added that, while fee waiver applications cost legal services providers time and resources to prepare and resubmit when needed, exemptions free up capacity for legal practitioners to prepare the merits of the immigration benefit case and assist more individuals seeking protections. Another commenter further stated that, particularly for vulnerable children who are almost always found eligible for a fee waiver, requesting a fee waiver is an unnecessary step that adds uncertainty to the application process. Another commenter reasoned that fee exemptions would ensure that vulnerable noncitizens do not forgo the opportunity to apply for humanitarian forms of relief. One commenter, citing a 2016 Citizenship and Immigration Services (CIS) Ombudsman report on inconsistent fee waiver adjudications, said that the exemptions would avoid ``arbitrary'' fee waiver decisions that disproportionately affect vulnerable immigrant populations. Another commenter wrote that, in addition to reducing burdens associated with fee waivers, fee exemptions provide clarity for applicants and their families and allow them to better anticipate the costs of applying for protections. Multiple commenters wrote that eliminating the need to apply for a fee waiver through exemptions would in turn reduce administrative burdens and resources expended for USCIS to adjudicate applications or engage in litigation arising from waiver rejections. Some commenters suggested that these efficiencies would allow USCIS to redirect staff resources away from processing and reviewing fee waiver requests toward adjudicating applications for humanitarian protection, and the resulting decrease in administrative burden to USCIS would mitigate erroneous denials and subsequent delays for survivors. Response: DHS notes that this final rule maintains and codifies the 2011 Fee Waiver Policy criteria that USCIS may grant a request for fee waiver if the requestor demonstrates an inability to pay based on receipt of a means-tested benefit, household income at or below 150 percent of the FPG, or extreme financial hardship. See 8 CFR 106.3(a)(3). While not a change to fee waiver eligibility criteria, DHS believes that codifying these criteria in this final rule will provide consistency and transparency that is responsive to the commenters' concerns. DHS agrees that there are costs to USCIS in adjudicating fee waivers beyond foregone revenue (i.e., the total fees that fee-waived or fee-exempt requestors would have paid if they had paid the fees). DHS believes that replacing fee waivers with additional fee exemptions removes barriers for applicants who are similarly situated in terms of financial resources and employment prospects. In the proposed rule, DHS proposed fee exemptions for humanitarian populations, including VAWA self-petitioners and requestors for T and U nonimmigrant status, without reducing fee waiver availability. In this final rule, DHS provides additional fee exemptions for these populations as explained in section II.C.9.b. of this preamble. DHS likewise expects a decrease in administrative burden associated with the processing of requests for fee waivers for categories of requestors that would no longer require a fee waiver because they will be fee exempt. DHS has not quantified the cost savings to USCIS associated with processing fee waiver requests, namely Form I-912. Furthermore, DHS's Regulatory Impact Analysis (RIA) estimates that the fee exemptions and reduction in fee waiver requests will result in quantifiable annual transfer payments from USCIS to the public and opportunity cost savings to the public from not completing and submitting a fee waiver request. See Regulatory Impact Analysis 3.P. In general, where DHS has determined that immigration fees would inequitably impact the ability of those who may be less able to afford the proposed fees to seek an immigration benefit for which they may be eligible, DHS has maintained fee exemptions, waivers, and reduced fees, and provided new fee exemptions to address accessibility and affordability. See 88 FR 402, 460-81 (Jan. 4, 2023). b. T Nonimmigrants Comment: A few commenters expressed support for the proposed change to exempt fees for all forms for T visa applicants, T nonimmigrants, and their derivatives through adjustment of status. One commenter agreed with USCIS' assessment that the proposal would help more victims of trafficking pursue immigration relief afforded to them by Congress. Another commenter wrote that the proposed rule would align with congressional intent under the TVPRA and international obligations under the Palermo Protocol. Response: DHS appreciates the commenters' support of the proposed fee exemptions for T visa applicants, T nonimmigrants, and their derivatives, and finalizes these fee exemptions in this final rule. See 8 CFR 106.3(b)(2); Table 5C. c. U Nonimmigrants Comment: Commenters expressed support for expanded fee exemptions for petitioners for U nonimmigrant status because the combined associated fees to obtain protection prohibit many otherwise eligible petitioners from pursuing U nonimmigrant status. The commenters said the proposed rule would allow petitioners to pursue U nonimmigrant status more expeditiously while saving nonprofit agencies' time. Other commenters wrote that they had concerns about the effects on U-nonimmigrants, specifically: U-nonimmigrants applying for adjustment of status should also be eligible for the same fee exemptions as T and VAWA adjustment applicants. U nonimmigrants are similarly situated to T nonimmigrants and VAWA self-petitioners because U nonimmigrants are vulnerable and have suffered similar harm and abuse, which impacts their physical, mental, and financial health due to ongoing trauma. The increased I-485 fee will be even more difficult for U nonimmigrants to cover. The higher volume of petitioners for U nonimmigrant status did not justify fewer fee exemptions because both groups remain vulnerable populations, and there are many more refugees than either U visa petitioners or T visa applicants, and it undermines DHS's ability- to-pay philosophy and [[Page 6269]] perpetuates barriers for vulnerable applicants for humanitarian relief. The fees would be prohibitively expensive for U nonimmigrants and VAWA self-petitioners, and total filing fees (I-485, I-765, and I-131) for a family of four would be more than 25 percent of the median annual household income ($44,666), not counting the cost of medical exams or attorney fees. Requiring U nonimmigrants and VAWA self-petitioners to pay the filing fees or submit fee waiver requests would be a significant drain on USCIS' limited staff and resources. Providing additional fee exemptions only for certain categories of vulnerable populations is ``arbitrary'' or ``unjustified.'' A maximum of 10,000 U-1 nonimmigrants become eligible to file Form I-485 each year, and therefore fee exemptions for U nonimmigrant adjustment of status applications would have a minimal impact when considering all the fee generating cases filed each year with USCIS. The longer period of employment authorization available to U nonimmigrants compared to T nonimmigrants did not justify their disparate treatment because U nonimmigrants may be unable to work because of trauma and physical injuries. USCIS should provide further explanation as to why U nonimmigrants would be treated differently than T nonimmigrants and VAWA self-petitioners with regards to adjustment of status fees. DHS has not provided information on the level of the costs that would need to be shifted to other paying applicants if Form I-485 were fee exempted for U nonimmigrants, or the policy considerations counseling against such a shift of costs. U nonimmigrants who are victims of domestic abuse may lack income or savings after leaving the abusive situation and may only be able to obtain employment in low-wage positions with no benefits due to language barriers, lack of education and work experience, and the impact of trauma. Most petitioners for U nonimmigrant status cannot afford the Form I-485 filing fee despite a bona fide determination (BFD) or a grant of U nonimmigrant status, particularly those adjusting as whole family groups (U-1 and derivatives). Not all U nonimmigrant petitioners receive employment authorization through the BFD process, and the absence of a BFD process for T nonimmigrant status applicants, contrary to the T nonimmigrant status regulations, does not support the failure to extend similar fee exemptions to U nonimmigrants. T visa holders may qualify for ``continuous presence,'' which allows for employment authorization, and they may receive refugee services from resettlement agencies. Even after obtaining employment authorization, U visa victims experience barriers to securing long term employment and earning capacity to pay for adjustment of status fees, and that the criminal proceedings tied to a U visa holder's victimization may not be completed within the 15-year wait between the receipt of employment authorization and the ability to adjust status. Participation in the labor force does not guarantee a rise out of poverty, according to a 2022 study from the Migration Policy Institute finding that more than half of the low-income immigrants of prime working age who worked full- time, year-round earned less than $25,000 a year in 2019. Fee waivers are an insufficient substitute for fee exemptions because the small amount of money saved by USCIS limiting fee exemptions in this respect would not be worth the harm imposed on applicants. U nonimmigrant applicants will also lack the evidence needed for fee waivers. Fee waivers will endanger victims and their children by delaying access to the confidentiality protections victims receive when cases are considered filed and given an 8 U.S.C. 1367 flag in the Central Index System, which does not occur until the fee waiver has been adjudicated. Requiring U nonimmigrants to file a fee waiver increases the time that pro bono attorneys must dedicate to their cases. Adjudicating fee waivers increases administrative burden on USCIS, and fee waivers for U nonimmigrants and their children applying for adjustment of status ignores dynamics of domestic violence, sexual assault, coercion, and child abuse. Victims experience physical, economic, and psychological abuse years after leaving their abuser, including during the adjustment of status stage. Response: DHS acknowledges that T and U nonimmigrants are both vulnerable populations that merit special consideration. After considering the comments, comparing these two victim populations, and weighing options to recover the costs of USCIS, DHS has decided to no longer treat T and U nonimmigrants differently with regard to fee exemptions in this final rule. In addition, DHS has expanded fee exemptions for U petitioners and U nonimmigrants to include Forms I- 131, I-192, I-193, I-290B, I-485, I-539, I-601, I-765 (adding renewal and replacement requests), I-824, and I-929. See 8 CFR 106.3(b)(5); Table 5B. Although U nonimmigrants may possess employment authorization for a longer time than T nonimmigrants (88 FR 402, 461, Jan. 4, 2023) the impact of victimization can be lasting and far-reaching, even after the events giving rise to U nonimmigrant status eligibility have concluded.\193\ Due to victimization, T and U nonimmigrants face similar employment and financial challenges, which justify similar fee exemptions. Expanding fee exemptions for U nonimmigrants could have resulted in higher fees to other fee payers because of the large number of U nonimmigrants who file Form I-485 and related forms.\194\ However, rather than increase fees further than in the proposed rule, DHS revised the USCIS budget to accommodate the revenue generated by the fees and volumes in this final rule. DHS has determined that the humanitarian nature of these programs warrants special consideration when weighed against the transfer of costs to other petitioners and applicants. DHS acknowledges the administrative burden placed on U petitioners and U nonimmigrants, as well as USCIS, by requiring fee waiver requests for this sizeable population, of whom a significant portion may be eligible for fee waivers but struggle to produce supporting documentation due to circumstances resulting from victimization.\195\ The changes made in this final rule account for the similar financial circumstances of T and U nonimmigrants, the likelihood that U nonimmigrants would qualify for fee waivers, and the burden reduction in providing fee exemptions to U [[Page 6270]] nonimmigrants for Form I-485 and related forms. --------------------------------------------------------------------------- \193\ However, DHS disagrees with the commenter's characterization of the results of the 2022 study from the Migration Policy Institute (MPI). The commenter wrote that in 2019 more than half of the low-income immigrants of prime working age who worked full-time, year-round earned less than $25,000 a year. However, the MPI report showed that 20 percent of full-time, year-round working immigrants made less than $25,000 a year. See Gelatt, et. al, ``A Profile of Low-Income Immigrants in the United States,'' Figure 11, Migration Policy Institute (Nov. 2022) available at https://www.migrationpolicy.org/sites/default/files/publications/mpi_low-income-immigrants-factsheet_final.pdf. \194\ The fiscal year limit of 10,000 U visas only applies to U- 1 principals and not to derivatives. See INA sec. 214(p)(2)(B), 8 U.S.C. 1184(p)(2)(B). \195\ However, with regards to certain forms, such as Form I- 485, DHS disagrees that fee waivers may delay confidentiality protections for victims of crimes, since the applicant's protection will already be recognized in USCIS systems following approval of their Form I-918, Petition for U Nonimmigrant Status, or Form I-929. --------------------------------------------------------------------------- d. VAWA Self-Petitioners Comment: A commenter expressed support for maintaining fee waivers for survivors seeking adjustment of status such as VAWA self- petitioners who are not filing concurrent I-360s and I-485s and conditional residents seeking waivers of joint filing requirements based on battery or extreme cruelty. Similarly, another commenter expressed support for streamlining the application process for vulnerable populations by providing fee exemptions. Commenters expressed support for DHS's proposal to exempt certain VAWA-related application fees. A commenter expressed support for the expanded fee exemptions for VAWA self-petitioners for all forms associated with the Form I-360 filing through final adjudication of the adjustment of status application. The commenter said this proposal would allow more abused spouses to obtain LPR status. Another commenter expressed support for the expanded fee exemptions for VAWA self- petitioners for all forms associated with the Form I-360 filing through final adjudication of the adjustment of status application. The commenter said this proposal would allow more abused spouses to obtain LPR status. However, some commenters wrote of concerns about fee exemptions and waivers for VAWA-based applications as follows: USCIS should exempt VAWA applicants from all fees through adjustment of status, regardless of whether Form I-485 was filed concurrently with Form I-360. USCIS should provide consistent fee exemptions for Forms I-485, I-212, I-601, and I-131 because this would reduce the significant burden on immigrant survivors who may face risks in having to gather the documents needed to support fee waivers. The proposed categories of exemptions were arbitrary and would create confusion, especially amongst pro se applicants who may be unaware of their ability to file concurrently. The proposed I-485 fees would be prohibitively expensive for VAWA self-petitioners who file their I-485 separately, and paying the fees could leave them vulnerable to debt and victimization. Some VAWA self-petitioners are ineligible to file their I- 485 concurrently with the I-360, including self-petitioning spouses and children of LPRs who do not have current priority dates. As a result, this population of self-petitioners would be unable to access a fee exemption for the I-485. Other situations exist where a VAWA self-petitioner may be unable to file or face difficulty filing their I-485 concurrently, including certain noncitizens who are in removal proceedings or have an outstanding order of removal; those with derivative children who will age out soon; those who need to file the I-360 quickly to obtain financial independence; or those whose I-130 was converted to a I-360 self-petition. It ``strains logic'' to deny fee exemptions and instead require fee waivers for VAWA self-petitioners where most will qualify for fee waivers. VAWA self-petitioners, VAWA cancellation of removal applicants, and battered spouse waiver applicants are amongst the victim cases that receive the most fee waivers and the fewest exemptions, and VAWA self-petitioner and derivative children should receive the same access to fee exemptions as SIJ children. Foreign-born spouses and children experience higher rates of abuse when the abuser is a U.S. citizen or LPR. Requiring some VAWA self-petitioners to pay the filing fees or submit fee waiver requests for form I-485 would drain USCIS' limited resources to investigate the status of the underlying I-360 to determine whether each form I-485 is fee exempt or if the application includes the proper filing fee or a fee waiver request. Response: DHS acknowledges that VAWA self-petitioners are a particularly vulnerable population as victims of abuse who may not have the financial resources or access to their finances needed to pay for fees when initially filing for immigrant classification, adjustment of status, and associated forms. DHS also acknowledges that for some VAWA self-petitioners, the ability to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and Form I-485 concurrently is beyond their control. As noted by the commenters, some VAWA self-petitioners are limited by visa priority dates, some are in removal proceedings or have an outstanding order of removal, and some may be the beneficiary of a Form I-130, Petition for Alien Relative, petition that was converted to a Form I-360 self-petition. DHS also acknowledges that in some situations the individual's need for safety puts them in a difficult position of deciding whether to pursue immigration benefits when they may not qualify for a fee exemption because they are not able to file Form I- 360 and Form I-485 concurrently. Additionally, VAWA self-petitioners may face challenges in obtaining evidence in support of fee waiver requests, adding a greater burden to the requestor in filing Form I- 912. This burden to requestors, combined with the administrative burden to USCIS in processing a high volume of requests for these individuals, many of whom would qualify for a fee waiver, justify exempting VAWA self-petitioners from fees. Considering the benefit to VAWA self- petitioners and USCIS, as well as the humanitarian nature of this program, DHS has codified the fee exemptions in the proposed rule and incorporated additional fee exemptions in the final rule to include applications for adjustment of status and associated ancillary forms, regardless of whether they are filed concurrently with the VAWA Form I- 360 self-petition. See 106.3(b)(6); Table 5B. Comment: A commenter expressed concern that, under the new regulation, there would be no fee exemption for Form I-765s filed by a VAWA I-485 applicant. The commenter stated that, under current Form I- 360 processing times, VAWA self-petitioners would have to wait 2 years and 8 months to obtain a fee exempt EAD. The commenter emphasized that these documents are often essential for a domestic violence survivor's recovery and future. Response: DHS acknowledges the commenter's concerns regarding the availability employment authorization. For reasons discussed earlier, DHS has provided additional fee exemptions for VAWA self-petitioners in this final rule, including Form I-765 renewal and replacement requests after Form I-485 is filed. See 8 CFR 106.3(b)(6); Table 5B. Comment: One commenter raised concerns that a fee exemption for Form I-601 Waiver of Inadmissibility in VAWA cases would only be available if the form is filed concurrently with Form I-485. Response: DHS acknowledges the commenter's concerns regarding the availability of a fee exemption for Form I-601 for VAWA self- petitioners. As explained in section II.C.9 of this preamble, DHS expands fee exemptions in this final rule for VAWA self-petitioners to include Form I-601 filed by individuals who did not concurrently file Form I-360 and Form I-485. See 8 CFR 106.3(b)(6); Table 5B. e. Iraqi and Afghan Special Immigrants Comment: A commenter wrote that they supported fee exemptions for Iraqi and Afghan special immigrant visa (SIV) and military applicants. Another commenter welcomed the expanded fee [[Page 6271]] exemptions for Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or on behalf of the U.S. Government, or Afghan nationals employed by or on behalf of the U.S. Government or employed by the ISAF to all forms associated with filings from initial status filing through final adjudication of the adjustment of status application. The commenter reasoned that Afghans face financial hardships that prevent them from accessing the benefits that Congress intended to provide this population. The commenter further wrote that the exemptions would reduce the burdens on those who support Afghans, including military, veteran, faith, and other communities. Response: DHS appreciates the support for fee exemptions for Iraqi and Afghan SIV and military applicants. As explained in section II.C.9 DHS further notes that in this final rule it has expanded fee exemptions for this group to include Form I-765 (renewal, and replacement request); Form I-290B (only if filed for any benefit request filed before adjusting status or for Form I-485 and in associated ancillary forms) and Form I-824. See Table 5B and 8 CFR 106.3(b)(3). On August 29, 2021, President Biden directed the DHS to lead implementation of ongoing efforts across the government to support vulnerable Afghan nationals, including those who worked alongside the U.S. government in Afghanistan for the past two decades, as they safely resettle in the United States. These coordinated efforts are known as OAW, now transitioning to Operation Enduring Welcome (OEW). CBP has exercised its discretion to parole many Afghan nationals, on a case-by- case basis, into the United States for urgent humanitarian reasons. Further, the Department of State (DOS) continues to coordinate the travel of Afghan nationals to the United States. Many Afghan nationals are also applying to USCIS for immigration benefits such as parole, employment authorization, Afghan special immigrant status, lawful permanent residence, waivers of inadmissibility, asylum, TPS, and family-based petitions. As we transition into OEW, helping Afghan nationals who are now U.S. citizens and LPRs bring their family members who are still in grave danger in Afghanistan out and into safety is an Administration priority. USCIS will continue to support family reunification by exempting certain fees and using the funds Congress appropriated for efforts under OAW and OEW. Form I-824 is used to request further action on a previously approved application or petition. A spouse or unmarried child younger than 21 years following to join a principal immigrant may receive the same special immigrant classification as a principal Afghan special immigrant. Some the Afghan LPRs who adjusted status as Afghan special immigrant (SIV LPRs) under the OAW effort are now seeking follow-to- join immigration benefits for their spouse and eligible children outside the United States. To permit a spouse and eligible children to apply for an immigrant visa with DOS, an Afghan SIV LPR must file a Form I-824 asking USCIS to notify DOS of the principal Afghan special immigrant's adjustment of status in the United States. USCIS is legally required to exempt this fee for Afghan SIVs under section 602(b)(4)(C) of the Afghan Allies Protection Act (8 U.S.C. 1101 note), which prohibits any fees ``in connection with an application for, or issuance of, an [Afghan SIV].'' DHS believes allowing a fee exemption for all Afghan SIV LPRs' Form I-824 filing fee will also help the continuing resettlement efforts and reunite separated family members under OAW and OEW. f. Special Immigrant Juveniles (SIJs) Comment: A few commenters expressed support for the proposed exemptions for all forms associated with SIJ classification through final adjudication of the adjustment of status application. Citing obligations under international agreements, one commenter concluded that the proposed exemptions would represent a crucial step toward upholding international best practices related to neglected, abused, or exploited children who lack the necessary permanence, benefits, and protections to thrive. Another commenter wrote that SIJs are court- dependent; that they have experienced abuse, neglect, or abandonment; and that such exemptions would help youth achieve stability and self- sufficiency. Finally, the commenter recommended that USCIS make it clear that the rule would eliminate SIJs' application fees for any forms filed by SIJ petitioners or recipients before adjustment of status, in the event of future changes to immigration law and policy. Response: DHS appreciates the support for fee exemptions for SIJs. As DHS explains in section II.C.9, it has expanded fee exemptions for this group to include Form I-290B (if filed for any ancillary forms associated with Form I-485). See Table 5B; 8 CFR 106.3(b)(3). DHS believes these regulations as written address the commenter's concerns, but we note that this rule does not preclude any future changes to immigration law and regulations. This rule therefore also does not prevent changes based on future changes in law or regulations. Comment: Multiple commenters expressed support for the proposed fee exemptions for SIJ petitioners and SIJ classified noncitizens, but also recommended extending the fee exemption to any Form I-765 filed by an SIJ petitioner, even if not associated with a pending application to adjust status. The commenters stated that this would help children who have been granted SIJ-based deferred action who apply for or renew employment authorization under the (c)(14) category while awaiting visa availability. A commenter also stated that this would help mitigate delays and reduce burden on USCIS. Response: DHS appreciates commenters' feedback regarding the rule's fee exemptions for those seeking or granted SIJ classification, but believes these comments are based on a misreading of the proposed rule. The proposed and final rule exempts fees for any Form I-765 filed by a person seeking or granted SIJ classification, regardless of whether they have filed a Form I-485. Compare 8 CFR 106.3(b)(1)(v), with proposed 8 CFR 106.3(b)(1)(v). DHS believes that the rule, as drafted, makes this sufficiently clear and has therefore not made any changes in this final rule. g. Asylees and Refugees Comment: Commenters expressed appreciation for the proposed fee exemptions for refugees submitting Form I-131 and for refugees submitting Form I-765 to renew or replace their EAD because such exemptions are consistent with the 1951 Refugee Convention and Congress's recognition that refugees are more likely than other immigrant populations to lack economic security and require support on their path to self-sufficiency. Another commenter similarly expressed support for USCIS' proposed fee exemptions for Form I-131 for persons admitted or paroled as refugees. Another commenter wrote that the cost burden should not be shifted to account for additional exemptions, and DHS should eliminate the refugee fee exemption for Form I-131, because a refugee with an ability to travel internationally can pay for Form I- 131. The commenter also wrote that there is less justification for the I-131 fee exemption for refugees because those who possess the means to travel internationally should be able to pay the I-131 fee. [[Page 6272]] Response: DHS makes no changes in the final rule based on these comments. Consistent with congressional intent to provide refugees with support and assistance on their path to self-sufficiency, DHS has a long history of offering refugee travel documents at reduced cost. See 75 FR 58972; see also INA sec. 207(c)(3) (public charge ground of inadmissibility in INA sec. 212(a)(4) does not apply to refugees); see also INA sec. 412, 8 U.S.C. 1522 (authorizing a variety of benefits and services for refugees). DHS aligns with this long-standing policy in providing a fee exemption for refugees filing Form I-131. Furthermore, as explained in the proposed rule, the increase in other fees resulting from exempting refugees from paying the fee for Form I-131 is marginal. See 88 FR 495. Comment: Regarding fees for asylum applicants and asylees, commenters wrote the following: Add fee exemption for asylum-based Form I-765 renewal and replacement requests. Add fee exemption for refugees and asylees for Form I-290B when filed in connection with Form I-730. Form I-730 is the only vehicle for family reunification for asylees and refugees. I-730 petitioners have motion rights via the I-290B but no appellate rights and can only challenge a denied family reunification petition with an I-290B filed within 33 days of a denial. I-730 petitioners must file within two years of arrival as a refugee or grant of asylum and as a result are new arrivals to the United States and are categorically economically disadvantaged. The form I-730 itself is fee exempt. Most I-730 petitioners are likely to be fee waiver eligible, and so the I- 290B form should be exempt from a fee in this category. Fee waiver eligibility for the I-290B is not sufficient because the asylee or refugee petitioner whose fee waiver application is denied is then time- barred from motioning to reopen or reconsider the I-730, since the rejection of an application for an insufficient fee or fee waiver application takes more than the 33-day period within which a petitioner can challenge the denial of the I-730. Considering that the proposed rule would make form I-290B fee exempt for every other humanitarian category of noncitizen contemplated in the proposed rule, adding fee exemptions for asylees and refugees for these benefits in the final rule would constitute a logical outgrowth of the proposed regulation. Add fee exemption for refugees and asylees for Form I-290B when filed in connection with Form I-485. Extend fee exemption for Form I-131 for asylees. Eliminate proposed fee exemption for refugees filing Form I-131. Asylees should not be treated differently from their humanitarian counterparts with respect to fee exemptions. DHS should exempt fees for all asylum-related benefits through adjustment of status. Add a fee exemption for Form I-485 for Asylum-based applicants. The same legal definition of a refugee applies to asylees, and that both vulnerable populations who face economic hardship, are eligible for public assistance, and are not subject to the public charge ground of inadmissibility. The proposed rule justifies new fee exemptions for refugees because refugees are not subject to the public charge ground of inadmissibility and because refugees have access to federally funded assistance. However, the same is true of asylees, and DHS does not explain why these justifications should not also lead to new fee exemptions for asylees. Justification for exempting fees related to humanitarian classifications--that the underlying status is fee-exempt and such applicants face economic hardships--apply equally to asylees. The proposed I-485 fee, along with the cost of a medical exam, would be prohibitively expensive. The rule ``disingenuously'' frames the I-589 fee exemption as a new benefit for asylum seekers even though this does not differ from the current fee schedule. Disagree that refugees are distinguishable from asylees because refugees are required to adjust status within one year while asylees are not required to do so, stating that most refugees do not in fact apply for adjustment one year after their admission. Asylees seek to adjust status as soon as possible to obtain stability for themselves and their family members. It is unfair to expect asylees to delay filing certain applications given the harmful impact that such delays will have on their ability to achieve stability, security, and family reunification; neither asylees nor refugees have gained sufficient financial security in their first year in such status in the United States to be able to afford the adjustment application fee. Asylum seekers often have little or no resources and experience ongoing financial hardship after a grant of asylum. Disagree that the large number of asylees justifies the differences in fee exemptions between refugees and asylees because the large number of asylees demonstrates a need to reduce barriers to permanent resident status for this vulnerable population. Providing fee exemptions for asylee I-485s could improve efficiency, since under the current rules some families can only afford to file one application at a time. This can cause derivatives to file nunc pro tunc I-589s before adjusting status if the principal asylee naturalizes or the derivatives ceases to meet the definition of a spouse or child before they adjust status. USCIS should reverse the 2020 rule and eliminate the asylum fee in the proposed rule which avoids the issues caused by prior proposed rules. DHS should codify fee exemptions for all forms filed by asylees through adjustment and family reunification because asylum seekers and recent asylees are vulnerable to exploitation and trafficking. DHS should exempt asylees from fees for a refugee travel document and that, if the I-131 fee was truly linked to the DOS fee for a U.S. passport, it would be one-tenth of the price because, unlike a ten-year passport, a refugee travel document is only valid for one year. Exempting fees for renewal Forms I-765 would benefit asylees and their communities through the ability to maintain employment and unexpired identity documents. Response: Form I-589, Application for Asylum and for Withholding of Removal is fee exempt for all filers. See 8 CFR 106.2(a)(28). Asylees are exempted from the fees for Form I-602, Application by Refugee for Waiver of Inadmissibility Grounds, Form I-730, Refugee/Asylee Relative Petition and Form I-765, Application for Employment Authorization (initial request by asylees and initial request by asylum applicants). Most forms used by asylum applicants or asylees are already fee exempt or fee-waiver eligible. 8 CFR 106.3(b). DHS considered the views of the commenters, and the number of asylum-based filings made each year and decided that the transfer of the costs of such filings to other petitions and applications would result in an excessive shift to other fee payers. DHS acknowledges that additional fee exemptions for asylees could reduce financial burden on these applicants. DHS will continue to exempt the initial Form I-765 fee for persons with pending asylum applications. See 8 CFR 106.2(a)(43)(iii)(D) and (G).\196\ DHS will [[Page 6273]] also fee exempt applicants who have applied for asylum or withholding of removal before EOIR (defensive asylum) or filed Form I-589 with USCIS (affirmative asylum) for initial filings of Form I-765. See proposed 8 CFR 106.2(a)(43)(iii)(D) and (G). --------------------------------------------------------------------------- \196\ Except for individuals applying under special procedures under the settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). --------------------------------------------------------------------------- DHS has decided to not exempt asylees from paying the fee for Form I-131 for refugee travel documents or advance parole (although at the lower passport fee level) \197\ and Form I-485 for adjustment of status. Although asylees and refugees are in some respects similarly situated populations, refugees are required to apply to adjust status after they have been physically present in the United States for at least one year, while asylees are not required to apply for adjustment of status within a certain period. Therefore, DHS decided to not shift the costs of adjudicating requests from asylees for adjustment of status, refugee travel documents and advance parole to all or certain other fee payers. Asylees filing Forms I-485 and I-131 have the option to either pay the fees or request a fee waiver. DHS disagrees that the sole considerations for providing a fee exemption are that the underlying status is fee exempt and the requestors historically face economic hardships. As explained throughout this preamble, DHS exercises its discretionary authority to provide fee exemptions for benefits and services based on numerous factors, including balancing beneficiary-pays and ability-to-pay principles, burden to the requestor and to USCIS, as well as humanitarian considerations and other policy objectives as supported by data. Though DHS may consider the similar circumstances of different categories of requestors in providing a fee exemption, as with VAWA, T nonimmigrant status, and U nonimmigrant status, whether the benefit request is submitted by populations with similar characteristics is not solely determinative of whether DHS provides a fee exemption. DHS disagrees that refugees and asylees should be provided the same fee exemptions simply because the two groups share similar characteristics. There are distinguishing characteristics between refugees and asylees. See INA 209, 8 U.S.C. 1159. Also, the population of asylees has far outnumbered the population of refugees in recent years.\198\ DHS believes that these differences in circumstance, in conjunction with the transfer of costs to other fee-paying benefit requestors, justifies providing certain fee exemptions for refugees and not for asylees because, overall, asylees are better able to time the filing of Form I-485 or an associated benefit request with their ability to pay the fees or request a fee waiver. DHS maintains this position in this final rule. --------------------------------------------------------------------------- \197\ The fee for refugee travel documents is set at the same level as the fee for a U.S. passport consistent with U.S. obligations under Article 28 of the 1951 Convention relating to the Status of Refugees, as adopted by reference in the 1967 Protocol relating to the Status of Refugees. See 8 CFR 106.2(a)(7)(i) and (ii). \198\ For example, in fiscal years 2019-2021, 48,888, 30,964, and 17,692 individuals respectively received asylum status, whereas 29,916, 11,840, and 11,454 individuals were admitted as refugees. See U.S. Dep't of Homeland Security, Office of Immigration Statistics, Annual Flow Report, Refugees and Asylees: 2021, available at https://www.dhs.gov/sites/default/files/2023-03/2022_0920_plcy_refugees_and_asylees_fy2021_v2.pdf. --------------------------------------------------------------------------- DHS disagrees that any potential decrease in nunc pro tunc filings of Form I-589 would reduce burdens to USCIS to such a degree that would justify the cost of this fee exemption. In FY 2022, of the total 41,160 Form I-589 filings, approximately 92 applications (0.2 percent) were filed nunc pro tunc. In the same year, Form I-485s filed by asylees accounted for 57,029 of the annual total of 608,734 Form I-485s filed (9 percent). Considering the 5-year annual averages of total Form I-485 filings (551,594) and fee-paying Form I-485 filings (471,625), on average, 85 percent of all Form I-485s are fee-paying. While not a direct comparison, the commenter's suggestion would result in additional forgone revenue on tens of thousands of Form I-485s to reduce nunc pro tunc I-589 filings that number less than 100 annually. Thus, the commenter's assertion that the additional fee exemption would reduce burden to USCIS is not supported by data and DHS declines to adopt the commenter's suggestion. DHS does not adopt the commenters' recommendation to add new fee exemption to the final rule for Form I-290B when filed by refugees and asylees in connection with Form I-730. DHS recognizes that we are providing a fee exemption for a Form I-290B filed by other populations in this final rule that have characteristics that resemble the population that files Form I-730. However, USCIS Form I-290B fee payment data indicates that affordability or accessibility has not generally been a problem for this population. Most individuals filing Form I-290B in association with a Form I-730 during FY 2019 through FY 2022 paid the filing fee. During this period, USCIS received a total of 376 Form I-290Bs filed in association with a Form I-730. Of those, only 57 (15 percent) were fee waived while 269 (72 percent) paid the full fee. Additionally, rejections were low and decreased over time. Of the 376 total filings, 50 (13 percent) were rejected, with no rejections occurring in FY 2021 and only two occurring in FY 2022. The demonstrably low demand for fee waivers, combined with the low incidence of rejection, does not support the need for a fee exemption for this population. Additionally, DHS addresses the public's concerns regarding fee waiver adjudication as discussed earlier in this preamble by codifying eligibility requirements and providing clarifying guidance. DHS does not adopt the commenters' recommendation to add new fee exemption to the final rule for Form I-290B when filed by refugees and asylees in connection with Form I-485. The commenters did not provide any explanation as to why specifically form I-485 filed by a refugee or asylee should be entitled to a fee-exempt I-290B. Refugee-based I-485s are fee exempt and asylum-based I-485s are eligible for fee waiver, such that re-filing does not pose economic obstacles to economically disadvantaged refugee and asylee adjustment applicants. DHS does not adopt the commenter's recommendation that the fee for asylees filing Form I-131 be prorated in accordance with the validity period of the refugee travel document relative to the 10-year passport. Consistent with U.S. treaty obligations, DHS does not charge a fee for a Refugee Travel Document that is greater than the fee charged for a U.S. passport.\199\ This final rule sets the fee for Refugee Travel Documents using Form I-131, Application for Travel Document, at an amount which is far less than the Refugee Travel Document fee-paying unit cost \200\ and equivalent to the current U.S. passport fee.\201\ The requirement to match the fees is not related to the effective period that a requestor may use either document. In [[Page 6274]] general, DHS does not set fees to reflect an estimated monetary value of a benefit during its validity period. As explained earlier in this preamble, DHS charges fees at a level to ``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.'' \202\ In this final rule, DHS maintains that the fee for asylees filing Form I-131 to request a refugee travel document will be kept below cost and consistent with the U.S. passport fee, increasing from $135 to $165. See Table 1. --------------------------------------------------------------------------- \199\ See Article 28 of the 1951 Convention relating to the Status of Refugees, as adopted by reference in the 1967 Protocol relating to the Status of Refugees; 8 CFR 106.2(a)(7)(i) and (ii). \200\ Compare Table 1, with Immigration Examinations Fee Account, Fee Review Supporting Documentation with Addendum, Nov. 2023, Appendix Table 4. The fee-paying unit cost for I-131 Refugee Travel Document is $535. \201\ At the time of this rulemaking, the DOS passport fees for a U.S. Passport Book consist of a $130 application fee and a $35 execution (acceptance) fee, for a total of $165. Children under 16 applying for a U.S. Passport Book pay a $100 application fee and a $35 execution (acceptance) fee, for a total of $135. See U.S. Department of State--Bureau of Consular Affairs, ``U.S. Passports,'' ``Passport Fees,'' available at https://travel.state.gov/content/travel/en/passports/how-apply/fees.html (last viewed Sept. 15, 2023). \202\ See INA sec. 286(m), 8 U.S.C. 1356(m). The longstanding interpretation of DHS is that the ``including'' clause in section 286(m) does not constrain DHS's fee authority under the statute. The ``including'' clause offers only a non-exhaustive list of some of the costs that DHS may consider part of the full costs of providing adjudication and naturalization services. See 8 U.S.C. 1356(m); 84 FR 23930, 23932 n.1 (May 23, 2019); 81 FR 26903, 26906 n.10 (May 4, 2016). --------------------------------------------------------------------------- h. TPS Comment: Commenters asked USCIS to retain the fee exemption for Form I-765 filed by initial TPS applicants under age 14 and over age 65 because: An EAD might be the only identification available to an unaccompanied child and it plays a vital role in securing critical support. Increasing fees on children and retired or disabled adults is inconsistent with the balancing of equities cited throughout the proposed rule. These applicants would be required to seek a fee waiver with each application. Response: DHS recognizes commenters' concerns but believes that our rationale in the proposed rule remains valid and not retaining the Form I-765 fee exemption for TPS applicants below age 14 and above age 65 is the best policy choice. There continues to be no fee for Form I-821 TPS re-registration and fee waivers are available for Form I-765 and initial Form I-821 for eligible applicants. See 8 CFR 106.3(a)(3). As explained in the proposed rule, USCIS no longer requires TPS applicants to file Form I-765 for information collection purposes, and only requires it if the TPS applicant wants an EAD. Persons applying for TPS who do not wish to request employment authorization need only file Form I-821. The reason that the INS fee exempted a Form I-765 filed by initial TPS applicants under age 14 and over age 65 from a fee no longer exists. See 88 FR 463. Thus, DHS will maintain that all TPS applicants requesting employment authorization must pay the filing fee for Form I-765 or request a fee waiver. i. Requests for Additional Fee Exemptions Comment: Multiple commenters recommended that USCIS exempt fees for all survivor or victim-based applications because poverty and barriers to financial resources are felt across all survivor-based immigration categories. The commenter also stated that immigrant survivors often face additional financial burdens and safety risks when they try to gather documents needed to support fee waivers that might be controlled by abusers or exploitative employers. One commenter recommended that DHS should exempt application fees for all forms of humanitarian relief through adjustment of status, since these populations face similar obstacles. The commenter added that DHS should provide a fee exemption for I-765 renewal and replacement applications for all humanitarian relief holders, including those based on a pending application for adjustment of status. The commenter stated that gaps in employment authorization can result in job loss. The commenter said that exempting humanitarian applicants from paying these fees would streamline the volume of fee waiver requests to adjudicate, lower personnel cost, and help ensure the continued economic independence of survivors. Response: DHS acknowledges the commenters' concerns regarding the financial burden to individuals seeking survivor or victim-based immigration benefits. DHS weighed these considerations given the commenters' feedback against the number of VAWA-, T-, and U-related filings it receives each year and the transfer of costs to other petitions and applications if these filings were fee exempt through final adjudication of the adjustment of status application and emphasizes the benefit to survivors in providing additional fee exemptions, as well as the humanitarian nature of these programs, in this final rule. As a result, DHS provides additional fee exemptions in the final rule for VAWA, T nonimmigrant, and U nonimmigrant populations to include adjustment of status and associated forms. See 106.3(b)(6); see also Table 5B. DHS declines to provide fee exemptions for all humanitarian categories of requestors for all forms filed through adjustment of status, as suggested by the commenter. DHS also notes that requests for humanitarian relief such as asylum (Form I-589), T nonimmigrant (Form I-914), U nonimmigrant (Form I-918), or VAWA self-petition (Form I- 360), are fee exempt. In this final rule DHS provides fee exemptions and fee waiver eligibility for forms filed through adjustment and associated ancillary forms by certain humanitarian categories of requestors consistent with our fee-setting approach as explained in this preamble. DHS disagrees with the commenter's characterization of the provision of additional fee exemptions for certain humanitarian categories as ``arbitrary'' or ``unjustified'' as it applies to the proposed rule and this final rule. As described throughout this preamble, DHS maintains fee waivers, reduces fees, and provides new fee exemptions to address accessibility and affordability where DHS has determined that a different approach would inequitably impact the ability of those who may be less able to afford the fees to seek an immigration benefit for which they may be eligible. DHS believes this final rule represents our best effort to balance access, affordability, equity, and national interest while providing USCIS with the funding necessary to maintain adequate services. Comment: One commenter stated that DHS should make I-765 applications filed under category (c)(14) fee exempt for victims and witnesses of workplace exploitation. The commenter said that applicants requesting employment authorization under this category will have either suffered or witnessed workplace abuse and will be at risk of termination or retaliation by their abusive employers, and some may also have recently lost their jobs or may be owed back wages. The commenter added that, because this basis for requesting deferred action and employment authorization is new, the anticipated volume of these requests will be low and will not materially burden USCIS if the fees for these Form I-765s are exempted. Response: On October 12, 2021, DHS issued a Policy Statement in support of the worksite enforcement efforts being conducted by the Department of Labor (DOL) in conjunction with other government agencies. The goal of DHS's policy is to ensure that we maximize the impact through policy and practices that will reduce the demand for illegal employment and help noncitizens navigate the USCIS process. Noncitizens who fall within the scope of a labor agency investigation and have been granted deferred action may be eligible for deferred action-based employment authorization (Form I-765 (C14). However, the C14 employment classification is not unique to these applicants. For this reason, DHS declines to fee exempt the C14 classification for Form I-765. However, [[Page 6275]] DHS has expanded the availability of fee waivers to ensure that the most vulnerable applicants are able to access the relief that they need. See 8 CFR 106.3.(a)(3)(ii)(E).\203\ --------------------------------------------------------------------------- \203\ See DHS, ``Policy Statement 065-06: Worksite Enforcement: The strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,'' available at https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enforcement.pdf (last viewed Sept. 1, 2023). --------------------------------------------------------------------------- Comment: Some commenters stated that it is unclear if Form I-824 would be fee exempt for certain humanitarian categories, and USCIS should make it exempt for SIVs, U, T, VAWA, asylees, and refugees. Other commenters said that Form I-824 should be free because it is used when USCIS has made a mistake. Response: DHS appreciates the commenters' concern that the proposed fee exemptions for Form I-824 lacked clarity. In this final rule, DHS provides a fee exemption for T visa applicants and T nonimmigrants, U visa petitioners and U nonimmigrants, VAWA, abused spouses and children categories, and SIVs for Form I-824. See 8 CFR 106.3(b); Table 5B. DHS declines to provide a fee exemption for Form I-824 for asylees and refugees as these populations may not use this form. Comment: One commenter stated that for immigrant victims of crime and abuse eligible for humanitarian immigration relief, including T nonimmigrant status, U nonimmigrant status, relief under VAWA (including Form I-751s), CAA, HRIFA, and the Nicaraguan Adjustment and Central American Relief Act (NACARA), VAWA cancellation of removal, VAWA suspension of deportation, and SIJ classification, the Form I-- 290B should be fee exempt. The commenter explained that requiring indigent immigrants to file a fee waiver for this form highlights the problematic approach USCIS has historically taken to fee waiver requests that impedes due process and cuts off low-income immigrant crime victims from immigration relief they would otherwise be able to receive. Similarly, other commenters expressed concern with the exclusion of Form I-290B appeals of U-based adjustment of status from the fee exemption provisions. Another commenter stated that limiting fee exemptions for VAWA self-petitioners filing I-290Bs to when the I- 485 and I-360 are concurrently filed limits due process and access to justice solely based on administrative technicality. Multiple commenters stated that the Form I-290B should be exempt for refugees and asylees to the same extent that it is for other humanitarian immigration categories, though some also stated that Form I-290B need not be fee exempt for every benefit sought by an asylee or refugee. Commenters asserted that Form I-290B should be fee exempt when filed in connection Form I-730. One commenter emphasized that the I-730 is the only vehicle for family reunification for asylees and refugees, while another said that the lack of a fee exemption would result in numerous petitioners each year suffering the devastating consequences of family separation. Additional commenters stated that adding fee exemptions for I-290Bs filed by asylees and refugees would constitute a logical outgrowth of the proposed regulation, which eases the fee burden on most humanitarian categories of requestors. The comments said that DHS should offset the cost of the I-290B fee exemption for refugees and asylees when filed in connection with the I-730 by retaining the fee requirement for I-131s filed by refugees because refugees with an ability to travel internationally presumably have an ability to pay for the I-131 and do not have the ``presumptive'' economic hardship that justifies other fee exemptions for this population. Response: In this final rule, DHS provides a fee exemption for Form I-290B if it is filed for a motion or appeal of a denial of any benefit request before adjusting status or for Form I-485 and associated ancillary forms for the following humanitarian categories: T and U nonimmigrant status, VAWA, abused spouses and children adjusting status under CAA and HRIFA, SIV, and SIJ. See 8 CFR 106.3(b); Table 5B. DHS declines to provide additional fee exemptions for asylees and refugees in this final rule for the reasons discussed elsewhere in this preamble. Comment: Some commenters recommended that DHS create fee exemptions for Form N-400s in certain situations, specifically: There should be an automatic fee waiver for all Form N-400 applicants with Form N-648 that meets the requirements for the medical certificate for disability exceptions. DHS should also provide fee exemptions for naturalization applications filed by refugees because the Refugee Convention calls on participants to facilitate the assimilation and naturalization of refugees as far as possible, and that DHS is obligated to ensure that the increased naturalization fees do not hinder the naturalization of refugees. Response: DHS appreciates that many applicants filing Form N-648, Medical Certification for Disability Exceptions, may be unable to pay the Form N-400, Application for Naturalization, filing fee but declines to provide a general fee exemption in this situation. Fee-exemption eligibility must be determined at the time a form is received by USCIS. The adjudication of Form N-648 is performed at the time of the N-400 interview after an Immigration Services Officer (ISO) has verified that the N-648 relates to the applicant.\204\ USCIS would be unable to determine whether the Form N-648 meets the requirements before exempting the Form N-400 fee. Furthermore, were USCIS to adjudicate Form N-648 at the time of receipt, before Form N-400, this would still require a full review of the applicant's A-file.\205\ Because the ISO adjudicating the N-400 would be required to perform another full review of the applicant's A-file,\206\ this would result in an inefficient duplication of USCIS efforts. In addition, not all applicants filing Form N-648 are unable to pay the Form N-400 fee. Form N-648 does not have any fee and applicants can still request a fee waiver or reduced- fee Form N-400 ($380) if they are unable to pay the online filing fee of $710, a $50 savings over the paper-based filing fee of $760. --------------------------------------------------------------------------- \204\ See USCIS, ``USCIS Policy Manual,'' Vol. 12, ``Citizenship & Naturalization,'' Part E, ``English & Civics Testing & Exceptions,'' Chp. 3, ``Medical Disability Exception (Form N-648)'' [12 USCIS-PM E.3], available at https://www.uscis.gov/policy-manual/volume-12-part-e-chapter-3 (last visited Aug. 25, 2023). \205\ Id. \206\ USCIS, ``USCIS Policy Manual,'' Vol. 12, ``Citizenship & Naturalization,'' Part B, ``Naturalization Examination,'' Chp. 3, ``Naturalization Interview,'' Section B, ``Preliminary Review of Application'' [12 USCIS-PM B.3(B)], available at https://www.uscis.gov/policy-manual/volume-12-part-b-chapter-3 (last visited Aug. 25, 2023). --------------------------------------------------------------------------- Currently, refugees are provided fee exemptions for their immediate needs upon arrival and generally would not be eligible for naturalization until 5 years after entry into the United States. DHS believes that at the time refugees are for applying for naturalization they may be employed and able to pay fees. Additionally, the Refugee Convention calls on States to facilitate the assimilation and naturalization of refugees; however, fee exemptions are not a requirement under the Convention. Article 34 of the Refugee Convention states in part that States shall make every effort to reduce the cost of naturalization proceedings.\207\ [[Page 6276]] Although DHS has decided not to extend fee exemptions for naturalization to refugees, USCIS offers reduced fee options, and some applicants may be eligible for fee waivers. --------------------------------------------------------------------------- \207\ While the United States is not a party to the 1951 Refugee Convention, it is party to the 1967 Refugee Protocol, under which States agree to apply articles 2 through 34 of the Convention. See Protocol relating to the Status of Refugees art. 1, Dec. 16, 1966, 19 U.S.T. 6223. ---------------------------------------------------------------------------

1. General Fee Provisions

a. Fee Payment and Receipt Requirements Comment: A commenter stated that applicants should retain the right to request credit card refunds, stating that this is one of the few means of recourse applicants have when facing apparently non-responsive government services. They stated that barring credit card disputes would diminish government transparency. A commenter stated that, where USCIS error prejudices individuals, filing fees should be refunded. A commenter wrote that the USCIS fee structure may confuse applicants and recommended that USCIS send a follow-up invoice rather than reject applications submitted with incomplete fees. Response: USCIS is committed to meeting its processing time goals and reducing the immigration benefit request processing backlog. USCIS acknowledges that since it last adjusted fees in FY 2016, USCIS has experienced elevated processing times compared to the goals established in the 2007 fee rule. See 72 FR 29851, 29858-29859 (May 30, 2007). Processing delays have contributed to case processing backlogs. However, with the high volume of submissions that USCIS continues to experience, steps that may delay adjudication of a request or require special handling, such as holding cases while USCIS bills for unpaid or partially unpaid fees, would only exacerbate backlogs. Therefore, USCIS fees generally are non-refundable and must be paid when the benefit request is filed. See 8 CFR 103.2(a). As explained in the proposed rule, credit card disputes are generally filed by requestors whose requests have been denied, who have changed their mind about their requests, or who have asserted that the service was not provided or was unreasonably delayed. See 88 FR 402, 483-484 (Jan. 4, 2023). USCIS makes its no-refund policy clear on its website.\208\ Filing and biometric service fees are final and non- refundable, regardless of any action USCIS takes on an application, petition, or request, or if requestors withdraw a request. However, when USCIS receives a payment in error, it may refund it. For example, USCIS refunds fees for Form I-131, Application for Travel Document, when erroneously paid for humanitarian parole on behalf of a beneficiary who is a Ukrainian citizen.\209\ USCIS provides other examples on its website.\210\ Often, USCIS has processed the request to completion and performed the work for which the fee was charged when the credit card dispute is lodged. DHS understands that no one wants to be determined ineligible and denied when they complete, submit, and pay for an immigration benefit request. However, DHS is authorized to charge fees to cover the cost of adjudicating requests and paying a fee is not a guarantee of a particular outcome. --------------------------------------------------------------------------- \208\ See USCIS, Filing Fees, available at https://www.uscis.gov/forms/paying-uscis-fees (last viewed on Sept. 22, 2022). \209\ See USCIS, Uniting for Ukraine, https://www.uscis.gov/ukraine (last reviewed/updated: June 1, 2023). \210\ E.g., USCIS, USCIS Removes Biometrics Requirement for Form I-526E, Immigrant Petition by Regional Center Investor, petitioners, https://www.uscis.gov/newsroom/alerts/uscis-removes-biometrics-requirement-for-form-i-526e-petitioners (last reviewed/updated: Mar. 15, 2023); USCIS, Certain Petitioners for U Nonimmigrant Status May Receive a Refund for Applications for Employment Authorization Submitted Before Sept. 30, 2021, https://www.uscis.gov/newsroom/alerts/certain-petitioners-for-u-nonimmigrant-status-may-receive-a-refund-for-applications-for-employment (last reviewed/updated: Nov. 22, 2021). --------------------------------------------------------------------------- USCIS also has fee payments withdrawn due to credit card disputes after the request is approved. When certain benefit request fee payments are dishonored or declined, or where an approved applicant successfully disputes their USCIS fee payment with their credit or debit card company, USCIS may send the requester an invoice for the unpaid fee. However, USCIS will generally send the requester a notice of intent to revoke (NOIR) the approval for the payment deficiency. The NOIR usually results in the amount due being paid, but if not, USCIS may revoke the approved benefit request. See 8 CFR 103.7(a)(2)(iii). USCIS data indicates that the credit card dispute process defaults to the consumer, and it has become a popular method for credit card holders whose immigration benefit requests are denied and delayed getting their money back. When USCIS performs services for which a fee has not been paid, such as when a chargeback of the fee payment occurs, the costs incurred result in a drain on IEFA reserves that are meant for other uses. Longstanding DHS regulations at 8 CFR 103.2(a)(1) provide that fees paid to USCIS for immigration benefit requests will not be refunded regardless of the result of the benefit request or how much time the adjudication requires. Consistent with that limitation, DHS proposed that fees paid to USCIS using a credit or debit card are not subject to dispute by the cardholder or charge-back by the issuing financial institution. See 8 CFR 106.1(e). USCIS is almost entirely fee funded. If every customer who experiences delays or is denied a benefit would be able to successfully dispute their USCIS fee payment with their credit card company, it could impose significant financial harm on USCIS. As stated elsewhere in this preamble, USCIS is working to reduce processing delays, and we have reduced the budget to be recovered by fees in this final rule as a result of increased efficiencies. DHS declines to make any changes to the final rule in response to these comments. In addition, DHS is adding a clarifying provision to its regulations at 8 CFR 103.2(a)(7) governing the submission of benefit requests to ameliorate the risks that may result from the changes being made in the final rule. DHS is adding several fee discounts, fee waiver eligibility and fee exemptions in this final rule to address the concerns of commenters about the negative impacts of the new fees on low income, small employer, nonprofit, military, elderly, and young requestors. See 8 CFR 106.3(b) (new exemptions); 8 CFR 106.2(a)(3), (4), (11), and (c)(13) (discounts for small employers and nonprofits); 8 CFR 106.2(a)(3) & (4) (Form I-129 fee discounts); 8 CFR 106.2(a)(20)(ii) (child's fee for Form I-485, Application to Register Permanent Residence or Adjust Status); 8 CFR 106.2(b)(3)(ii) (discount for Form N-400, Application for Naturalization); 8 CFR 106.2(a)(32) and (46) (adoption fee exemptions); 8 CFR 106.2(b)(7)(ii) and (8) (adoption fee exemptions). USCIS will review the filing to determine if the requestor qualifies for a fee waiver, fee exemption, or lower fee when the request is received. However, to protect USCIS from requestors that may submit a lower fee for which they may not qualify and that USCIS may not catch at intake, DHS provides that if USCIS accepts a benefit request and determines later that the request was not accompanied with the correct fee, USCIS may deny the request. 8 CFR 103.2(a)(7)(ii)(D)(1); see also 88 FR 402, 481-482. Further, because USCIS may adjudicate certain requests in a few days, if the benefit request was approved before USCIS determines the correct fee was not paid, the approval may be revoked upon notice. Id. Comment: Commenters opposed the proposal to allow USCIS to require that [[Page 6277]] certain fees be paid using a certain payment method or that certain fees cannot be paid using a particular method. See 8 CFR 106.1(b). The commenters stated that this could disallow payment methods such as cashier's checks or money orders, to the detriment of low-income applicants and petitioners who may not have internet access, U.S. bank accounts, established credit-scores, or access to reloadable debit cards necessary for some forms of payment. The commenters requested that USCIS accept cashier's checks and money orders as methods of payment for all applications, petitions, and requests. Some stated that access to internet and prepaid debit cards is limited for low-income applicants. Some stated that USCIS should not rely on public libraries to meet the need for internet access because of libraries' under- utilization. A commenter requested that any changes to acceptable payment methods should be accompanied with a widespread notice to the public of this change and a grace period to facilitate smooth processing and promote overall fairness. A commenter stated that Form G-1450 payments are often improperly rejected even when all the information supplied is correct and legible and USCIS should allow submission of cashier's checks and money orders. Commenters also requested that Form I-140 and I-907 fees be payable from outside of the United States. A commenter suggested that a single check or money order be sufficient for all fees related to a single application to simplify returning funds from a money order. Response: In this final rule, DHS does not restrict the method of payment for any immigration benefit request. This final rule clarifies the authority for DHS to prescribe certain types of payments for specific immigration benefits or methods of submission. DHS does not have data specific to USCIS benefit requestors' access to the internet or banking but understands that populations submitting requests may have attributes that make access to a bank account challenging. DHS acknowledges that some requestors may not use banks or use them on a limited basis for several reasons. It appears, however, that a person can alternatively purchase a pre-paid debit card, cashier check or money order that can be used to pay their benefit request fee.\211\ In addition, since 2018, requesters have been able to use a credit card to pay for a USCIS form filing fee that gets sent to and processed by one of the USCIS lockboxes or, for credit card transactions that do not exceed the limits set forth in the Treasury Financial Manual, split the fees between more than one credit card.\212\ More recently, USCIS expanded a pilot program that allows credit card payments for service center filings.\213\ The credit card used does not have to be the applicant's; however, the person who is the owner of the credit card must authorize use of his or her credit card. In addition, comments that libraries are underused indicate they remain available for free online services, access to information and computers that the public may use to read, complete, print or submit benefit requests. Nevertheless, in evaluating future changes to acceptable means of payment for each immigration benefit request, DHS will consider the availability of internet access and different means of payment to the affected populations. --------------------------------------------------------------------------- \211\ DHS understands that some commenters are concerned about the hidden fees of certain prepaid debit cards; however, many cards exist with no fees. See, e.g., CardRates.com, 6 Best Prepaid Debit Cards with No Fees (Oct. 2023), available at https://www.cardrates.com/advice/best-prepaid-debit-cards-with-no-fees/ (last viewed Oct. 20, 2023). \212\ See USCIS Expands Credit Card Payment Option for Fees, https://www.uscis.gov/news/news-releases/uscis-expands-credit-card-payment-option-fees (last reviewed/updated Feb. 14, 2018). \213\ See USCIS Service Center Expands Credit Card Payment Pilot Program to Most Forms, available at https://www.uscis.gov/newsroom/alerts/uscis-service-center-expands-credit-card-payment-pilot-program-to-most-forms (last reviewed/updated Mar. 30, 2022). --------------------------------------------------------------------------- Regarding public notice, proposed changes to USCIS forms and instructions are typically published in the Federal Register for notice and comment. When USCIS finalizes a revised form, there is typically a grace period or advance notice before customers are required to use a revised version of the form. USCIS announces these changes on its website. When DHS expands or limits acceptable instruments locally, nationwide, or for certain USCIS benefit requests, it issues multiple communications and provides sufficient advance public notice to minimize adverse effects on any person who may have plans to pay using methods that may no longer be accepted.\214\ Nevertheless, in response to the public comments and to provide more certainty to stakeholders, DHS has codified a 30-day advance public notification requirement before a payment method will be changed. 8 CFR 106.1(b). --------------------------------------------------------------------------- \214\ See, e.g., USCIS Service Center Expands Credit Card Payment Pilot Program to Most Forms, available at https://www.uscis.gov/newsroom/alerts/uscis-service-center-expands-credit-card-payment-pilot-program-to-most-forms (last reviewed/updated Mar. 30, 2022); USCIS Updates Fee Payment System Used in Field Offices, available at https://www.uscis.gov/news/news-releases/uscis-updates-fee-payment-system-used-field-offices (last reviewed/updated Mar. 7, 2019). --------------------------------------------------------------------------- b. Biometric Services Comment: A few commenters wrote support for eliminating the separation of biometrics fees from the fee associated with their underlying application. Commenters wrote: Combining fees would reduce confusion and promote efficiency. They supported including biometric fees but disagreed that doing so would lower fees overall. A commenter requested an online scheduling system for biometric appointments. They recommended reusing immutable or persistent biometrics, especially for highly iterative applications with shorter grant periods biometrics to mitigate administrative burdens. No fee should be paid when biometrics are reused. A few commenters opposed absorbing the biometric services fee into other fees, stating: Not everyone is required to submit biometrics and people should not be required to pay for something that is not needed. It is disingenuous to suggest that integrating the biometrics fee into the required filing fee reduces fee burdens while simultaneously seeking to double the fees an individual would pay to adjust status. USCIS should eliminate the biometrics requirements for O-3 applicants, consistent with H and L applications to reduce confusion and streamline the application process because there is no reason to require biometrics information from O-3 applicants. USCIS could lower its costs by improving its communications with EOIR, especially for the purposes of coordinating asylum and I-94 grants. Response: DHS agrees with the comments in favor of incorporating the cost of biometric services into the underlying immigration benefit request fees. This approach aims to simplify the fee structure, create a more user-friendly experience, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information. As explained in the proposed rule, the biometric services information used to calculate the proposed fees included when USCIS may reuse information it already collected. See 88 FR at 484-485 (Jan. 4, 2023). As explained elsewhere in this rule, DHS limited the fee increases for some immigration benefit requests by inflation or a lower [[Page 6278]] percentage from the proposed rule. This includes benefit requests that typically require biometric services, such as Form I-90, Application to Replace Permanent Resident Card, Form I-485, and Form N-400. As such, the final fee for these forms is sometimes less than in the proposed rule. The INA provides DHS with the specific authority to collect or require submission of biometrics in several sections. See, e.g., INA section 235(d)(3), 8 U.S.C. 1225(d)(3) (``to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service''); INA section 287(b), 8 U.S.C. 1357(b) (powers of immigration officers and employees to administer oaths and take evidence); INA sections 333 and 335, 8 U.S.C. 1444 (requirement to furnish photographs for naturalization) and 1446 (investigation and examination of applicants for naturalization); INA section 262(a), 8 U.S.C. 1302(a) (requirement for noncitizens to register and be fingerprinted); INA section 264(a), 8 U.S.C. 1304(a) (authority to prescribe contents of forms required for alien registration); see also INA section 103(a)(3), 8 U.S.C. 1103(a)(3) (conferring broad authority on the Secretary to ``establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the'' immigration laws). DHS regulations at 8 CFR 103.2(b)(9) accordingly provide that USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, to submit biometrics, and pay the biometric services fee. As USCIS has tried to adjust its biometrics policies over the years, it has been stymied by the separate fee requirement and how it would be collected. In addition, the separate fee results in many requests being rejected for failure of the preparer to accurately calculate the impact of the biometric services fee on the amount owed. This rule will provide DHS flexibility in its biometrics submission practices and policies to ensure that necessary adjustments can be made to meet emerging needs, conduct biometrics-based background checks, produce documents, and verify identities, while reducing filing rejections. In June 2023, USCIS launched a new tool which allows customers to reschedule most biometric appointments before the date of the appointment.\215\ USCIS periodically changes policies related to biometric collection, such as the forms requiring biometric services.\216\ Removing the biometrics services fee as a separate requirement will streamline the ability of DHS and USCIS to change biometrics polices and need and workload dictates. However, those changes may be beyond the scope of the fee rule. --------------------------------------------------------------------------- \215\ USCIS, USCIS Launches Online Rescheduling of Biometrics Appointments, available at https://www.uscis.gov/newsroom/news-releases/uscis-launches-online-rescheduling-of-biometrics-appointments (last reviewed/updated July 6, 2023). \216\ See, e.g., USCIS, USCIS Extends Temporary Suspension of Biometrics Submission for Certain Form I-539 Applicants, available at https://www.uscis.gov/newsroom/alerts/uscis-extends-temporary-suspension-of-biometrics-submission-for-certain-form-i-539-applicants (last reviewed/updated Apr. 19, 2023). --------------------------------------------------------------------------- c. Online/Electronic Filing Comment: Many comments were received on the proposed changes to online and electronic filing. The commenters who were opposed to the different fees for online and paper filing wrote: They opposed having separate fees for online filing and paper filings without providing additional rationale. Paper filing fees should not differ from online filing because it would result in financial and digital inequities, contravene the objectives of E.O. 14012, burden applicants with low financial inclusion, discriminate against individuals with lower income, certain disabilities, low literacy, inability to use technology, people living in rural or remote areas, who lack access to broadband and computers; citing a 2021 Pew Research Center research on race and access to internet and computers, and a 2022 study showing that one-in-five U.S. households including many racial and ethnic minority households are not connected to the internet. 2020 study on the ``Digital Divide'' during the COVID-19 pandemic; a 2020 DHS study on poverty and internet access indicating that one in six people living in poverty in the United States have no internet access, multiple sources on internet access in various locations, a 2021 Pew Research study of which older Americans seldom use the internet, and a 2022 publication on low rates of smartphone ownership among seniors. The fees would result in chaos and confusion for unrepresented people, including missed deadlines, rejected cases, and delays. Applicants should not be punished for being unable to file online. Many applicants cannot file online due to language barriers, lack of computer skills, as well as access and resources to submit online. The proposal would subject applicants with low tech literacy, such as seniors and people with lower education, to scams claiming to assist in digital filing. The proposal would disadvantage survivors of domestic violence, human trafficking, and other serious crimes who are not able to file applications for protected case types online. People with disabilities may require assistive technologies that they do not have access to, especially if they are survivors of violent crimes and research indicates higher rates of disabilities, varying needs, and the impact of violent crimes and abuse on persons with disabilities. Applicants who are most vulnerable and in need of assistance, such as lower income and the elderly who do not have the technology or savvy to handle a finicky electronic system, would be penalized.