U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements; Correction

AGENCY:

U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).

ACTION:

Final rule; correction.

SUMMARY:

USCIS is correcting a final rule that appeared in the Federal Register on January 31, 2024. The final rule amended DHS regulations to adjust certain immigration and naturalization benefit request fees charged by USCIS and made certain changes.

DATES:

Effective April 1, 2024.

FOR FURTHER INFORMATION CONTACT:

Carol Cribbs, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Dr., Camp Springs, MD 20746; telephone 240–721–3000 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

On January 31, 2024, the Department of Homeland Security (DHS) published a final rule in the Federal Register at 89 FR 6194 changing immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS), fee exemptions and fee waiver requirements, premium processing time limits, and intercountry adoption processing (FR Doc. 2024–01427). After review of the published document, DHS identified a few errors in the preamble and regulatory text.

In the final rule, there were a number of technical and typographical errors that are identified and corrected by the Correction of Errors and Technical Amendments section of this correcting document. The provisions in this correcting document are effective as if they had been included in the final rule document that appeared in the January 31, 2024, Federal Register .

Accordingly, the corrections are effective on April 1, 2024, at 12 a.m. Eastern Time. This document, and the corrections included in this document, do not change how DHS will apply the final rule; i.e., DHS will apply the corrected final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after April 1, 2024. Applications and petitions already pending with USCIS on April 1, 2024, ( i.e., postmarked before April 1, 2024) will not be subject to the final rule.

II. Summary and Explanation of Corrections

A. Fee Exemptions and Waivers

As discussed in the preamble, the final rule expands fee exemptions for certain filing categories. DHS identified a number of places where these fee exemptions were not accurately contained in either the preamble or regulatory text:

Form I–765, Application for Employment Authorization

The final rule created fee exemptions for a renewal or replacement Form I–765, Application for Employment Authorization, when filed by the following groups:

• Persons seeking or granted special immigrant visa or status as an Afghan or Iraqi translator or interpreter, Iraqi nationals employed by or on behalf of the U.S. Government, Afghan nationals employed by or on behalf of the U.S. Government or employed by the International Security Assistance Force (ISAF), and their derivatives.

• Abused spouses and children of U.S. citizens and lawful permanent residents seeking cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2).

• Current and former U.S. armed forces service members.

The final rule's summary of changes (II.C), Tables 5B and 5C, and supporting documents all confirm these additional fee exemptions. However, DHS inadvertently omitted the exemptions for the above groups in the regulatory text, which only listed the fee exemptions for an initial I–765 as was provided in the proposed rule. Therefore, DHS corrects the regulatory text portion of the final rule, 8 CFR 106.2(a)(44)(iv)(E) (on page 6389, first column); 8 CFR 106.3(b)(3)(vi) (on page 6392, third column); and 8 CFR 106.3(b)(8)(i) (on page 6393, second column), to provide that a replacement or renewal Form I–765 is fee exempt for the groups identified above.

Form I–290B, Notice of Appeal or Motion

The fee for Form I–290B is waivable for any benefit where the underlying form fee is free or waived. However, in the preamble DHS inadvertently omitted a fee waiver for Form I–765V, Application for Employment Authorization for Abused Nonimmigrant Spouse, in Table 5C. Therefore, in Table 5C in the preamble (page 6230) in the row entitled “Abused Spouses of A, E–3, G, and H Nonimmigrants,” DHS adds the text “Form I–290B” to the third column to indicate that a requester can submit a request to waive the fee for filing a motion to reopen or reconsider the denial of their I–765V.

Form I–601A, Application for Provisional Unlawful Presence Waiver

The final rule also created an additional fee exemption for Form I–601A, Application for Provisional Unlawful Presence Waiver, when filed by a person seeking or granted Special Immigrant Juvenile (SIJ) classification. ⁸ However, DHS inadvertently omitted this fee exemption from the regulatory text and Table 5C. Therefore, in Table 5C in the preamble (on page 6231), in the row entitled “SIJs,” DHS is adding the text “Form I–601A” to the second column. In the regulatory text portion of the final rule, DHS adds 8 CFR 106.3(b)(1)(vii) (on page 6392) in the first column to indicate that Form I–601A is fee exempt for persons seeking or granted SIJ classification.

Adoption Fees

The final rule provides fee exemptions for adoption-related forms and summarizes the new exemptions in Table 7: Adoption Fees. However, this table was mistakenly referred to as “Table 8” in the preamble. DHS corrects the preamble on page 6307, third column, of the final rule to include proper reference to Table 7.

Special Rule Cancellation of Removal

The final rule allows persons to request a waiver of any fee associated with a request for special rule cancellation of removal as a spouse or child that has been battered or subjected to extreme cruelty. The regulation text cites 8 U.S.C. 1229(b)(2) as the statute for this underlying benefit; however, the proper statutory citation is 8 U.S.C. 1229b(b)(2). The final rule mistakenly repeats a typo that originated in the proposed rule. Therefore, DHS corrects the regulatory text, 8 CFR 106.3(a)(3)(iii) (on page 6392, first column) with the proper legal citation for special rule cancellation of removal for spouses and children who have been battered or subjected to extreme cruelty.

B. Online Filing Fee for Form I–539, Application To Extend/Change Nonimmigrant Status

In the preamble, DHS incorrectly stated the final online filing fee for Form I–539, Application to Extend/Change Nonimmigrant Status. The final rule preamble stated that the Form I–539 fee for paper filing was $470 and the online filing fee was also $470. While DHS used the paper filing fee twice in the same sentence, it meant to include the $50 discount for online filing, making the Form I–539 fee $420 when filed online. DHS used the correct online filing fee of $420 elsewhere in the preamble, including Table 1. In the regulatory text, DHS did not exempt Form I–539 from the online filing discount. DHS corrects the preamble of the final rule on page 6329, second column, to include the proper online filing fee for Form I–539.

C. Corrections to Final Regulatory Flexibility Analysis Tables

DHS corrects three tables in the Final Regulatory Flexibility Analysis section of the preamble. DHS identified that the note under Table 12b, in the preamble, on page 6362, inadvertently states the CNMI Educational Fund fee is $30. The note should have stated that the CNMI Educational Fund fee is $210. This correction does not impact the analysis of the regulation.

DHS corrects two rows in both Table 15 on page 6365, and Table 17 on page 6366. The dollar amount in the columns A through F in the row labeled “L–1A/L–1B/LZ Blanket” and the dollar amounts in columns A through F in the row labeled O–1/O–2 petitions were transposed in both tables. The correct amounts are shown in Table 1 on page 6198 of the final rule. These corrections do not impact the analysis of the regulation.

D. Definition of Nonprofits

DHS defined the term “nonprofit” on page 6386, column 2, in the final rule to offer discounts to the Asylum Program Fee and Form I–129, Petition for Nonimmigrant Worker, and Form I–129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker. DHS intended to administer the discount for petitioners in the final rule consistent with the discount provided from the American Competitiveness and Workforce Improvement Act (ACWIA). As stated in the final rule preamble, 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. The INA does not define “nonprofit” in terms of the Internal Revenue Code (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. However, DHS inadvertently omitted educational organizations from the definition in 8 CFR 106.1(f)(2). In this correction, DHS clarifies the definition to include not-for-profit primary or secondary educational institutions, or institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a). This correction is consistent with the preamble and DHS' intent.

E. Online Filing Fee for Small Employers and Nonprofits

The final rule implements various discounted fees, sometimes with exceptions. For example, DHS provides discounted fees to small employers and nonprofits for Forms I–129 and I–129CW and the Asylum Program Fee. DHS also revised the range of online filing fees that were in the proposed rule to instead use a $50 discount for online filing in most cases. DHS made exceptions to the $50 discount in limited circumstances, like 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.

DHS did not intend for customers to combine both the discounts for online filing and for small employer and nonprofit fees. DHS applies the same definition of small employers and nonprofits to both the Asylum Program Fee and the fees for Forms I–129 and I–129CW. The preamble and regulatory text specify that the online filing discount does not apply to the H–1B registration fee and the Asylum Program Fee. DHS did not intend to apply online filing discount in addition to providing small employer and nonprofit discounts for the fees for Forms I–129 and I–129CW. Various statements and tables in the preamble and supporting documentation support this assertion. Table 1 in the preamble lists online and paper filing fees for various benefit requests as well as the full fee and small employer and nonprofit fees for Forms I–129 and I–129CW, but it does not list rows that combine both discounts. In Table 5 of the Regulatory Impact Analysis, DHS identifies paper filing and online filing fees for various benefit requests and Form I–129 rows do not have this distinction. The same table does have the distinct fees for small employers and nonprofits filing Form I–129.

DHS corrects the final rule to clarify the $50 online filing discount does not apply to the small employer and nonprofit petitions fees for Forms I–129, I–129CW and the Asylum Program Fee by amending 8 CFR 106.2(a)(3); adding 8 CFR 106.2(a)(3)(xi) to state, “The online filing discount in § 106.1(g) does not apply to the fee for small employers and nonprofits in paragraphs (a)(3)(i), (a)(3)(iii), (a)(3)(v), and (a)(3)(ix) of this section.”; and clarifying 8 CFR 106.2(a)(4)(ii).

F. Fee for Form I–129CW for a Small Employer and Nonprofit

As discussed in the preamble to the final rule, for nonprofits and businesses with 25 or fewer FTE employees (including any affiliates and subsidiaries) filing Forms I–129 and I–129CW for the applicable nonimmigrant classification, DHS is setting the fee at either the current $460 fee or half of the new fee whichever is higher. The full fee for Form I–129CW is $1,015. Half of $1,015 rounded to the nearest $5 is $510.

The final rule for filing Form I–129CW listed a small employer and nonprofit fee of $510 in various text and tables in the final rule preamble. Various supporting documents in the docket likewise list the fee as $510. For example, Tables 5 and 27 of the Regulatory Impact Analysis (RIA) for the final rule lists the small employers and nonprofits fee for Form I–129CW as $510. Likewise, Table 6 of the supporting documentation for the final rule lists the small employers and nonprofits fee for Form I–129CW as $510. However, the regulatory text for Form I–129CW inadvertently listed the prior fee which was $460 at 8 CFR 106.2(a)(4)(ii). Therefore, DHS corrects the regulatory text portion of the final rule on page 6387, column 1, 8 CFR 106.2(a)(4)(ii), to indicate that small employers and nonprofits must submit a fee of $510 with Form I–129CW.

G. References to Form Instructions

As stated in the final rule, USCIS is removing fee, fee waiver, fee exemption, and fee payment information from the individual information collection (IC) instructions by consolidating it into the USCIS Form G–1055, Fee Schedule, and placing it online on the USCIS website www.uscis.gov. Form instructions will no longer list fees. However, DHS inadvertently provided regulatory text in parts of the final rule that stated or implied that the form instructions would include fees. For example, the final rule provided that the fraud detection and prevention fee for filing certain H–1B and L petitions as described in 8 U.S.C. 1184(c) “and USCIS form instructions” was $500. 89 FR 6391. Therefore, DHS corrects the regulatory text portion of the final rule to remove “and USCIS form instructions” and similar language indicating that the form instructions will contain fee information in the following places: (1) Page 6391, in the first column, 8 CFR 106.2 (c)(4); (2) Page 6391, in the first column, 8 CFR 106.2(c)(5)(i); (3) Page 6391, in the first column, 8 CFR 106.2 (c)(5)(ii); (4) Page 6391, in the first column, in 8 CFR 106.2(c)(6); (5) Page 6398, in the second column, 8 CFR 214.2 (w)(5). The reference to form instructions is not removed in 8 CFR(c)(7), on page 6391, first column, because the CNMI education funding fee will be included in the form instructions for Form I–129CW.

H. H–1B Registration Fee Regulatory Text

DHS exempted the H–1B Registration Fee from the $50 online filing discount in the regulatory text. However, it created an unnecessary third level paragraph without a (i) or (ii) preceding the (iii) at 8 CFR 106.2(c)(11)(iii). As such, DHS corrects the regulatory text to add the text from the third level at 8 CFR 106.2(c)(11)(iii) to the second level at 8 CFR 106.2(c)(11).

I. Form I–800 Fee Regulatory Text

As discussed in the preamble to the final rule, DHS is setting the fee for Form I–800, Petition to Classify Convention Adoptee as an Immediate Relative, at $920, unless an exemption applies. See e.g.,89 FR 6311 (Table 7). However, the regulatory text at 8 CFR 106.2(a)(46) on page 6389, second column, inadvertently left blank the fee amount for this form. DHS corrects the final rule to indicate the fee for Form I–800 by amending the introductory paragraph to 8 CFR 106.2(a)(46) to state, “For filing a petition to classify a Convention adoptee as an immediate relative: $920.”

III. Administrative Procedure Act

Section 553(b) of the Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. 5 U.S.C. 553(b). In addition, section 553(d) of the APA requires agencies to delay the effective date of final rules by a minimum of 30 days after the date of their publication in the Federal Register . 5 U.S.C. 553(d). Both of these requirements can be waived if an agency finds, for good cause, that the notice and comment process and/or delayed effective date is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice. 5 U.S.C. 553(b)(B), (d)(3).

DHS believes there is good cause for publishing this correction document without prior notice and opportunity for public comment and with an effective date of less than 30 days because DHS finds that such procedures are unnecessary. This document corrects technical and typographic errors in the preamble (including tables) and regulatory text, but does not make substantive changes to the policies that were adopted in the final rule. This document merely conforms erroneous portions of the final rule to the agency's clearly expressed contemporaneous intent. As a result, this correcting document's sole function is to ensure that the information in the January 31, 2024 final rule accurately reflects the policies adopted in that final rule, prior to which DHS issued a notice of proposed rulemaking and received public comment. Therefore, DHS believes that it has good cause to waive the notice and comment and effective date requirements of section 553 of the APA.

IV. Correction of Errors and Technical Amendments

Accordingly, the publication final rule at 89 FR 6194, (FR Doc. 2024–01427) is corrected as follows:

A. Correction of Errors in the Preamble

1. On page 6230, in Table 5C: Forms for Fee Waivers and Fee Exemptions, as of Effective Date of this Final Rule, the eighth row in the table labeled “Abused spouses of A, E–3, G, and H Nonimmigrants” and the third column (Fee Waiver Eligibility), Table 5C is corrected by removing “Not applicable” and inserting a new bullet reading “• Form I–290B.”

2. On page 6231, in Table 5C: Forms for Fee Waivers and Fee Exemptions, as of Effective Date of this Final Rule, the tenth row in the table labeled, SIJs, and the second column (Fee Exemptions), Table 5C is corrected by inserting a new bullet reading “• Form I–601A” after the bullet reading “• Form I–601.”

3. On page 6307, in the third column, line eight, the language “Table 8 below” is corrected by removing the number 8 and adding in its place the number 7.

4. On page 6329, in the second column, Section, e. Form I–539 Extend/Change Nonimmigrant Status, Response, line eight, remove the sentence “For these reasons, this Final Rule lowers the proposed Form I–539 fee from $620 to $470 for paper filings, and from $525 to $470 for online filings.” and add in its place a sentence to read: “For these reasons, this Final Rule lowers the proposed Form I–539 fee from $620 to $470 for paper filings, and from $525 to $420 for online filings.”

5. On page 6362, Table 12b. Fee Summary Table for Form I–129 Petitioners (Matched Only), row 12, Note, in Table 12b of the table, is corrected by removing “$30” and adding its place “$210.”

6. On page 6365, in Table 15, USCIS Final Fees for Form 1–129 Petition for Nonimmigrant Worker by Classification, for Small Entities with 25 or Fewer FTE Employees, correct the ninth and tenth rows of the table, labeled as “L–1A/L–1B/LZ Blanket” and “O–1/O–2”, by removing the values in columns A through F of row nine labeled “L–1A/L–1B/LZ Blanket” and adding in their place the dollar amounts in columns A through F of the row labeled “O–1/O–2” and removing the dollar amounts in row ten labeled “O–1/O–2” with the dollar amounts in columns A through F of the row labeled “L–1A/L–1B/LZ Blankets.” The corrected rows read as follows:

7. On page 6366, in Table 17. USCIS Final Fees for Form 1–129 Petition for Nonimmigrant Worker by Classification, for Nonprofit Small Entities, correct the ninth and tenth rows of the table, labeled as “L–1A/L–1B/LZ Blanket” and “O–1/O–2”, by moving all the values in row nine labeled “L–1A/L–1B/LZ Blanket” to row ten, labeled “O–1/O–2” and moving all the values in row ten labeled, “O–1/O–2” up to row nine, labeled “L–1A/L–1B/LZ Blanket.”. The corrected rows read as follows:

B. Correction of Errors in the Regulatory Text

1. On page 6386, in the second column, in instruction 7 in § 106.1, correct paragraph (f)(2) to read as follows:

2. Starting on page 6386, in the third column, in instruction 7 correct § 106.2 by:

a. Adding paragraph (a)(3)(xi);

b. On page 6387, in the first column, correcting paragraph (a)(4)(ii);

c. On page 6389, in the second column, adding paragraph (a)(44)(iv)(E);

d. Revising paragraph (a)(46) introductory text;

e. On page 6391, in the first column, in paragraph (c)(4) removing the words “and USCIS form instructions”.

f. On page 6391, in the first column, in paragraph (c)(5)(i) removing the words “and USCIS form instructions”.

g. On page 6391, in the first column, in paragraph (c)(5)(ii) removing the words “and USCIS form instructions”.

h. On page 6391, in the first column, in paragraph (c)(6) removing the words “and USCIS form instructions”.

i. On page 6391, in the second column, revising paragraph (c)(11).

The additions and revisions read as follows:

3. Starting on page 6392, in the first column, in instruction 7, correct § 106.3 by:

a. In paragraph (a)(3)(iii) removing the citation to “ 8 U.S.C. 1229(b)(2) and adding in its place the citation “8 U.S.C. 1229b(b)(2)”;

b. On page 6392, in the second column, adding paragraph (b)(1)(vii);

c. On page 6392, in the third column, in paragraph (b)(3)(vi) removing the word “initial”;

d. On page 6393, in the second column, in paragraph (b)(8)(i) removing the words “for their initial request”.

The addition reads as follows:

4. On page 6398, in the second column, in § 214.2, paragraph (w)(5) is corrected by removing the words “the form instructions and”.