Copland and Brenner

Table of Contents

1. "Fee," Fi, Fo, Fum: Fees Will Increase and Here's How Come
2. Change of Address (AR-11) Function Now Online

1. "Fee," Fi, Fo, Fum: Fees Will Increase and Here's How Come

   If a proposed rule by the Department of Homeland Security ("DHS") becomes final, filing fees for most petitions and applications will increase - significantly. According to the proposed rule, published in the Federal Register on February 1, the “last comprehensive fee review was conducted in fiscal year 1998.” At that time, the increases averaged 76 percent. Modest increases based upon inflation and cost of living adjustments were imposed over the years, including April 2004 and October 2005. In October 2005, DHS stated that fees would “be adjusted annually…by publication of an inflation adjustment” to be published in the Federal Register . But apparently, keeping up with inflation is not enough, as explained in Supplementary Information to the rule.

   The problem, according to a message from U.S. Citizenship and Immigration Services (“USCIS”) Director Emilio Gonzalez, is that “99% of [the agency’s] annual budget comes from the fees that we collect from our customers….we’ve confirmed that our current fees do not cover our costs to do business.” Apparently, they don’t even come close: a press release dated January 31 puts it succinctly by stating that the “proposal highlights an average increase for application and petition fees of approximately 86 percent .” (emphasis added)

   According to a Fact Sheet issued by U.S. Citizenship and Immigration Services on January 31, the new fee structure “is based on a new cost model, and proposes both to improve service delivery and enhance the security and integrity of the immigration system.” In its fee review, “USCIS used an Activity-Based Costing (ABC) methodology that assigns costs to activities and to products and volume (applications/petitions and biometric services for which the agency charges a fee.” The identified activities, as discussed in the proposed rule, include:
   - informing the public, including receiving and responding to customer inquiries
   - capturing biometrics, such as fingerprints and photographs, as well as FBI background checks
   - intake activities such as mailroom operations, file assembly, data capture and collection, fee receipting, and filing
   - Interagency Border Inspection System (IBIS) checks, which compare information on applicants, petitioners, beneficiaries, and household members who apply for benefits against various federal lookout systems
   - reviewing records, such as creating, searching, auditing, updating, and requesting files, as well as archiving inactive files
   - making determinations, which includes adjudication of petitions and applications, interviewing applicants, consulting with supervisors and legal counsel on complex adjudications, and researching applicable laws
   - fraud detection and prevention, which involves activities to detect, combat, and deter immigration benefit fraud
   - issuing documents, including the production and distribution of secure cards that identify the holder as an alien and his/her status and employment authorization

   Under the proposed rule, the “weighted average application/petition fee is increased by $223, from an average fee of $231 to $454, or 96%. When combined with the biometric fee, the weighted average application/petition fee is increased from $264 to $491, or 86%.” Because fees for certain interim benefits (commonly, employment and travel permission for adjustment of status applicants) would be consolidated, “the increase would be only 66%.”

   The rule "proposes to merge the fees for certain applications so applicants will pay a single fee rather than paying several fees for related services." It seeks to "eliminate fees for interim benefits, duplicate filings, and premium processing by consolidating and reallocating costs among the various fees." It would exempt certain applicants (for "T" nonimmigrant status or certain benefits under the Violence Against Women Act) from some fees, and would "modify substantially the availability of individual fee waivers by limiting them to certain specified form types."

   Temporary appropriations in recent years (for backlog reduction efforts), as well as fees collected under certain temporary programs such as LIFE Act (which expired in 2001), have been relied upon by USCIS to close its funding gap - but after fiscal year 2006, "USCIS' budget requests for adjudication programs will be limited to fee resources." There may be strong objections to the proposed increases because some are, frankly, shocking. However, although the February 1 rule is merely a proposal, it is difficult to imagine that it will not be finalized as written since the agency must fund its activities by fee collection. And, it should be noted, another lengthy lag between fee adjustments should not be anticipated, since "USCIS is committed to update its fees through a similar analysis at least once every two years."

   Details regarding the proposed increases as to certain specific, commonly used, petitions and applications are as follows:

   - I-90: Application to Replace Permanent Resident Card - now $190; proposed fee $290 (+$100)
   - I-102: Application for Replacement/Initial Nonimmigrant Arrival/Departure Record - now $160; proposed fee $320 (+$160)
   - I-129F: Petition for Alien Fiance(e) - now $170; proposed fee $455 (+$285)
   - I-129: Petition for a Nonimmigrant Worker - now $190; proposed fee $320 (+$130)
   - I-130: Petition for Alien Relative - now $190; proposed fee $355 (+$165)
   - I-131: Application for Travel Document - now $170; proposed fee $305 (+$135)
   - I-140: Immigrant Petition for Alien Worker - now $195; proposed fee $475 (+$280)
   - I-290B: Motions - now $385; proposed fee $585 (+$200)
   - I-360: Petition for Amerasian, Widow(er), or Special Immigrant - now $190; proposed fee $375 (+$185)
   - I-485: Application to Register Permanent Residence or to Adjust Status (14 years of age and older) - now $325; proposed fee $905 (+$580)
   - I-485: Application to Register Permanent Residence or to Adjust Status (under 14 years of age) - now $225; proposed fee $805 (+$580)
   - I-539: Application to Extend/Change Nonimmigrant Status - now $200; proposed fee $300 (+$100)
   - I-600/600A: Petition to Classify Orphan as an Immediate Relative/ Application for Advance Processing of Orphan Petition - now $545; proposed fee $670 (+$125)
   - I-751: Petition to Remove the Conditions on Residence - now $205; proposed fee $465 (+$260)
   - I-765: Application for Employment Authorization - now $180; proposed fee $340 (+$160)
   - I-817: Application for Family Unity Benefits - now $200; proposed fee $440 (+$240)
   - I-824: Application for Action on an Approved Application or Petition- now $200; proposed fee $340 (+$140)
   - Waiver applications (including Form I-192 Application for Advance Permission to Enter as a Non-Immigrant; I-212 Application for Permission to Reapply for Admission into the U.S.; I-601 Application for Waiver of Grounds of Excludability; I-612 Application for Waiver of the Foreign Residence Requirement ) - now $265; proposed fee $545 (+$280)
   - N-400: Application for Naturalization - now $330; proposed fee $595 (+$265)
   - N-600: Application for Certification of Citizenship - now $255; proposed fee $460 (+$205)
   - Biometrics: Capturing Biometric Information - now $70; proposed fee $80 (+$10)

   It should be noted that the rule "anticipates (but is not dependent on) consolidating Form I-131 [application for travel document] and Form I-765 [application for employment authorization] into the Form I-485 so that applicants for adjustment of status will not be required to file three separate form types in order to apply for adjustment of status, advance parole and employment authorization." Many (but not all) adjustment applicants do apply for both interim benefits, with fees for all three currently totaling $675 (plus biometrics fees). Eliminating fees for interim benefits, especially where I-485 adjudication takes more than one year, would actually benefit applicants even though the $905 proposed fee is startling at first glance.

   Statutory provisions regarding fees for certain immigration benefits, including the $1,000 premium processing fee for some employment-based petitions and the $50 fee limit on temporary protected status, cannot be changed by regulation. Only a change in the law can do so - and that is up to Congress and the President, not the agency.

   The American Immigration Lawyers Association opposes the proposed fee increases, stating in a January 31 release that "USCIS may well be the only government agency other than the Postal Service that tries to operate 99% on user fees," and that "[1]t is time for the Administration and Congress to step up and fund the government's fair share of the process." Since "government" funding means taxpayer dollars, those who do not actually require immigration benefits might strenuously disagree with AILA's position and support the agency's user-based fee structure.

   Those interested in submitting comments to the proposed rule must do so no later than April 2, 2007. All comments received will be posted without change to http://www.regulations.gov, and will include any personal information provided.

2. Change of Address (AR-11) Function Now Online

   With limited exceptions, all aliens in the U.S.A. are required to inform USCIS of any change of address within ten days of any move by filing Form AR-11. In a news release posted on the agency’s web site, USCIS announced that this action may now be taken online. According to the release, the agency processes more than one million change of address requests each year. The online filing option is expected to reduce processing time frames and improve customer service in that immediate agency confirmation of receipt will be provided.

   It is important to keep in mind that filing Form AR-11 does not update USCIS regarding any pending petition or application. A separate notice of address change is required, which should be filed at the office where the application or petition is pending. Alternatively, USCIS may be contacted by telephone, at 1-800-375-5283, to provide change of address information involving a pending matter. Obviously, calling the agency will not provide an applicant or petitioner with any proof that the action was taken.

   In questions presented to USCIS by AILA, the agency noted that:

   - “Change of Address Online provides a confirmation number at the time an AR-11 is done. That confirmation number can be used as legal evidence that the customer provided his/her change of address to DHS as legally required by the [Immigration and Nationality Act].”
   - The AR-11 online address submission does not extend to NSEERS Special Registrants, who “must still submit the AR-11SR which is available on the ICE [U.S. Immigration and Customs Enforcement] web site,” for any change of address, job, or school.
   - Acknowledging that unauthorized, abusive, or incorrect change of address notification could be submitted by a third party, the agency states that protection is afforded “through verification at the USCIS Office completing the change of address using the same methodology used if/when a written request is received. If any questions or suspicions arise that the requested change of address may not be valid, the USCIS Office will send a notification to the applicant/petitioner at both addresses to get further confirmation.”

   Phase two of the online change of address system is expected to be rolled out in May. At that time enhancements will be implemented, including an option for applicants with a pending naturalization application to report a change of address for purposes of that application, as well. And, USCIS states, it will continue to accept Form AR-11 filings via mail. Additional information regarding change of address online is available at http://www.uscis.gov/AR-11.