[Federal Register Volume 76, Number 234 (Tuesday, December 6, 2011)]
[Rules and Regulations]
[Pages 76032-76035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31175]
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DEPARTMENT OF STATE
22 CFR Part 22
[Public Notice 7706]
RIN 1400-AC57
Schedule of Fees for Consular Services, Department of State and
Overseas Embassies and Consulates
AGENCY: Bureau of Consular Affairs, State.
ACTION: Final rule.
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SUMMARY: This rule adopts without change the interim final rule
published in the Federal Register, 75 FR 28188, on May 20, 2010 (Public
Notice 7018). Specifically, the rule proposed changes to the Schedule
of Fees for Consular Services (Schedule) for nonimmigrant visa and
border crossing card application processing fees. This rulemaking
adopts as final the change from $131 to $140 for the fee charged for
the processing of an application for most non-petition-based
nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border
Crossing Cards (BCCs). The rule also provides new tiers of the
application fee for certain categories of petition-based nonimmigrant
visas and treaty trader and investor visas. Finally, the rule adopts as
final the increase in the BCC fee charged to Mexican citizens under age
15 who apply in Mexico, and whose parent or guardian already has a BCC
or is applying for one, from $13 to $14. This latter change results
from a congressionally mandated surcharge that went into effect in
2009.
The Department of State is adjusting the fees to ensure that
sufficient resources are available to meet the costs of providing
consular services in light of an independent cost of service study's
findings that the U.S. Government is not fully covering its costs for
the processing of these visas under the current cost structure. The
Department endeavors to recover the cost of providing services that
benefit specific individuals, as opposed to the general public. See OMB
Circular A-25, section 6(a)(1), (a)(2)(a). For this reason, the
Department has adjusted the Schedule.
DATES: Effective Date: This rule is effective December 6, 2011.
FOR FURTHER INFORMATION CONTACT: Polly Hill, Office of the Comptroller,
Bureau of Consular Affairs, Department of State; phone: (202) 663-1301,
telefax: (202) 663-2599; email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
For the complete explanation of the background of this rule,
including the rationale for it, the Department's authority to make the
fee changes in question, and an explanation of the CoSM that produced
the fee amounts, consult the prior public notices: 75 FR 66076 (Dec.
14, 2009); 75 FR 14111 (Mar. 24, 2010); and 75 FR 28188 (May 20, 2010).
The Department published a proposed rule in the Federal Register,
74 FR 66076, on December 14, 2009, proposing to amend 22 CFR 22.1.
Specifically, the rule proposed changes to the Schedule of Fees for
Consular Services for nonimmigrant visa and border crossing card
application processing fees, and provided 60 days for comments from the
public. In response to requests by the public for more information and
a further opportunity to submit comments, the Department published a
supplementary notice in the Federal Register, 75 FR 14111, on March 24,
2010. The supplementary notice provided a more detailed explanation of
the CoSM, the activity-based costing model that the Department used to
determine the proposed fees for consular services, and reopened the
comment period for an additional 15 days. During this and the previous
60-day comment period, 81 comments were received, either by email or
through the submission process at www.regulations.gov. The Department
analyzed these 81 comments in the interim final rule at 75 FR 28188,
28190-82, and does not reproduce that analysis here. Instead, the
current notice addresses only the additional comments received in the
further 60 days during which the comment period for this interim final
rule was open. In total, the public has been given 135 days to comment
on this change to the Schedule of Fees.
This rule establishes the following fees for these categories
corresponding to projected cost figures for the visa category as
determined by the CoSM. These fees incorporate the $1 Wilberforce
surcharge that must be added to all nonimmigrant MRVs, see Public Law
110-457, Title II, Sec. 239(a):
--H, L, O, P, Q, and R: $150;
--E: $390; and
--K: $350.
The Department rounded these fees to the nearest $10 for the ease
of converting to foreign currencies, which
[[Page 76033]]
are most often used to pay the fee. The additional revenue resulting
from this rounding will be used to cover the costs of Global Support
Strategy (GSS) services.
Analysis of Comments
The proposed rule was published for comment on December 14, 2009.
During the comment period, which initially closed February 12, 2010 and
was subsequently extended until April 8, 2010, the Department received
81 comments. For an analysis of those comments, please see the interim
final rule in the Federal Register, 75 FR 14111, published May 20, 2010
(Public Notice 7018).
The Department published the interim final rule on May 20, 2010,
and reopened the comment period for an additional 60 days. During that
comment period, which closed on July 19, 2010, the Department received
an additional nine comments. The following analysis addresses these
nine comments. Of the nine, three were in support of the increase.
Reasons for support included endorsement of the fee changes as
necessary to allow the Department to meet its budget.
Two comments criticized the increased K-category fianc[eacute](e)
visa fee, arguing that the increase in the K visa fee will make it more
difficult for U.S. citizens to bring their loved ones to the United
States. While the Department appreciates the financial difficulties
that increased fees can create, it has determined that it must recover
the cost of providing the service. The Department is adjusting the fee
for K-category fianc[eacute](e) visas from $131 to $350 specifically
because adjudicating the K visa requires a review of extensive
documentation and a more in-depth interview of the applicant than other
categories of Machine Readable Visas (MRVs). Rather than setting a
single MRV fee applicable to all MRVs regardless of category as was
done in the past, the Department has concluded that it will be more
equitable to set the fee for each MRV category at a level commensurate
with the average cost of producing that particular product. The more
extensive K visa processing procedure requires pre-processing of the
case at the National Visa Center, where the petition is received from
the Department of Homeland Security (DHS), packaged, and assigned to
the appropriate embassy or consulate. K visa processing also requires
intake and review of materials not required by some other categories of
nonimmigrant visas, such as the I-134 affidavit of support and the DS-
2054 medical examination report. See 75 FR 14111, 14113 (discussing
some of the extra steps needed to process a K visa).
The higher incidence of fraud in K visa applications also requires,
in many cases, a more extensive fraud investigation than is necessary
for some other types of visa. Indeed, the Department of State's
processing of K visas is almost identical to that required for a
family-based immigrant visa, so it follows that the costs of K visa
processing are similar to those for immigrant visas. Spouses, children,
and parents applying for immigrant visas to the United States currently
pay the Department of State a $330 application processing fee as well
as a $74 immigrant visa security surcharge, Items 32 and 36 on the
Schedule of Fees.
The Department received three comments from the same commenter
concerning instances in which specific subsets of E-category or H-
category visas appear to the commenter to require simpler processing,
and suggesting that those subsets should pay lower fees than standard E
and H applicants. The Department decided to charge a higher fee for
visa categories that require more complex processing, seeing this as a
more equitable solution than spreading the additional cost to produce
certain visa categories (H, L, O, P, Q, R, E, and K) across all visa
categories. The commenter appears not to challenge this decision as
concerns tiered fees for visa categories more broadly. He argued,
however, that there is no reason to charge more than $140--the base MRV
fee--to Singaporean and Chilean H-1B1 visa applicants; such applicants,
if approved, qualify for non-petition-based visas to work in a
specialty occupation under legislation implementing treaties between
the United States and those countries. The commenter made a similar
argument with respect to E-3 visas issued to Australian applicants
pursuant to legislation that authorizes non-petition based visas for
Australians to work in a specialty occupation; he argued that E-3s
should cost the same as H-1B1 visas for Singaporean and Chilean
applicants and thus have the same fee. Another commenter suggested that
the costs of processing E visas for spouses and children must be less
than for principal applicants, and that therefore these derivative
applicants should be charged a lower fee.
Yet as the proposed and interim final rules explained, the CoSM
showed that some categories of visa require more time and resources to
process than others. On average, H-category visas require the
Department to perform a number of additional tasks and processes beyond
those that are necessary for producing a BCC or other MRV, including
review of extensive documentation and a more in-depth interview of the
applicant. E-category visas require considerably more tasks on average
than H-category visas and most other MRV categories. The Department has
previously explained that, because E-3 visas are not petition-based
when issued overseas, they require the Department of State visa
adjudicator to both determine whether the employment falls under the E-
3 program (similar to the work DHS performs in adjudicating a
petition), and assess the eligibility of the applicant; this process is
more like that required for other E visas than the process for most H
visas, for which DHS has already adjudicated a petition. See 75 FR
28188, 28191.
In addition, the fees established by this rule are based on unit
costs--global average costs for service types as a whole. The most
recent CoSM, on which the new Schedule of Fees is based, improved
substantially upon prior cost of service models by identifying unit
costs not just for nonimmigrant visas as a whole, but for specific visa
classes that involved more work (e.g., H, E, K, etc.). This CoSM did
not, however, distinguish between subcategories of visas (e.g., E-1
versus E-3; H versus H-1B1). Instead, the cost model averaged together
the cost of processing all subcategories of a particular type of visa.
Admittedly, the amount of resources required to adjudicate individual
applicants can vary significantly from case to case. As an example, a
B1/B2 applicant could be a individual with a long history of good
travel to the United States, and the adjudication could be made in just
minutes; a different B1/B2 applicant could, however, be seeking to
travel to the United States for extensive medical care over a period of
years, which would require the officer to spend much more time
considering the case before making a decision. The Department does not,
however, charge these applicants different fees based on the time
spent. The cost of the more time-consuming case and the cost of the
less time-consuming case are both taken into account in determining an
average unit cost for the visa category. In the same vein, the time
spent adjudicating a principal applicant for an E-1 visa generally will
take more time than that required to adjudicate that applicant's minor,
accompanying children; the application fee charged to those applicants
is based on a unit cost that takes into account both the higher-cost
and the lower-cost processing. The Government Accountability Office
[[Page 76034]]
(GAO) has noted that government agencies should define the classes of
persons subject to their fees by the ``smallest unit that is
practical.'' GAO, 3 Principles of Federal Appropriations Law (3d ed.
2008) 12-161 (citing Electronic Industries Ass'n v. FCC, 554 F. 2d
1109, 1116 (DC Cir. 1976)). The Department determined that establishing
four separate tiers of fees in this latest Schedule, based on visa
category, was equitable and practical. The Department will explore the
practicability of expanding in a future fee schedule the number of
separate unit costs examined in the CoSM to the visa subcategory level,
while keeping in mind the need to balance the administrative burden
with the potential benefit to applicants.
A comment submitted jointly by United Airlines, Inc., and the U.S.
Travel Association expressed concerns about how the CoSM ensured that
administrative support costs were correctly attributed to individual
consular services, and urged that costs for positions not dedicated to
fee-based consular activities be excluded from the CoSM. As previously
stated, to address the sharing and allocation of administrative support
costs at embassies and consulates, the Department uses the
International Cooperative Administrative Support Services (ICASS). The
CoSM includes not all Department of State ICASS costs, but rather only
the share of those costs equal to the share of consular ``desks'' at
all embassies and consulates. The consular share of ICASS costs was
then assigned within the model to all overseas services. While the
Department will continue to endeavor to assign and allocate costs in
the most accurate manner possible, its CoSM includes all costs for
consular services--whether a fee is charged for those services or not.
The Department will review, and continuously seek to keep accurate, the
calculations used for allocating ICASS costs to specific service types.
Regulatory Findings
Administrative Procedure Act
The provisions of 5 U.S.C. 553 and 554 have been followed through
the course of this rule making, and the Department cannot identify any
adverse impact on the conduct of foreign affairs from the use of these
procedures. This final rule is effective upon publication. This rule
was previously published as an interim final rule on May 20, 2010, with
an effective date 15 days from the date of that publication (i.e., on
June 4, 2010). The Department provided ``good cause'' justification at
that time under 5 U.S.C. 553(d)(3). See 75 F.R. at 28192-28193.
Regulatory Flexibility Act
This rulemaking is subject to the Regulatory Flexibility Act, 5
U.S.C. 601 et seq; however, no action is required under this Act. The
Department has reviewed this rule and, by approving it, certifies that
it will not have a significant economic impact on a substantial number
of small entities as defined in 5 U.S.C. 601(6). This rule raises the
application processing fee for nonimmigrant visas. Although the
issuance of some of these visas is contingent upon approval by DHS of a
petition filed by a U.S. company with DHS, and these companies pay a
fee to DHS to cover the processing of the petition, the visa itself is
sought and paid for by an individual foreign national overseas who
seeks to come to the United States for a temporary stay. The amount of
the petition fees that are paid by small entities to DHS is not
controlled by the amount of the visa fees paid by individuals to the
Department of State. While small entities may be required to cover or
reimburse employees for application fees, the exact number of such
entities that does so is unknown. Given that the increase in petition
fees accounts for only 7 percent of the total percentage of visa fee
increases, the modest 15 percent increase in the application fee for
employment-based nonimmigrant visas is not likely to have a significant
economic impact on the small entities that choose to reimburse the
applicant for the visa fee.
Unfunded Mandates Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year, and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501-1504.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 5
U.S.C. 804(2). This rule will not result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices
for consumers, individual industries, federal, state, or local
government agencies, or geographic regions; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
Executive Order 12866
OMB considers this rule to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review, September 30, 1993. Accordingly, this rule was submitted to OMB
for review. This rule is necessary in light of the Department of
State's CoSM finding that the cost of processing nonimmigrant visas has
increased since the fee was last set in 2007. The Department is setting
the nonimmigrant visa fees in accordance with 31 U.S.C. 9701 and other
applicable legal authority, as described in detail in other notices
associated with this rulemaking (RIN 1400-AC57). See, e.g., 31 U.S.C.
9701(b)(2)(A) (agency head may prescribe regulations establishing
charge for service or thing of value provided by agency based on, inter
alia, costs to Government). This regulation sets the fees for
nonimmigrant visas at the amount required to recover the costs
associated with providing this service to foreign nationals.
Executive Order 13563
The Department of State has considered this rule in light of
Executive Order 13563, dated January 18, 2011, and affirms that this
regulation is consistent with the guidance therein.
Executive Orders 12372 and 13132
This rule will not have substantial direct effects on the states,
on the relationship between the national government and the states, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on federal programs and activities do
not apply to this rule.
Executive Order 13175
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, the requirements of section 5 of Executive
[[Page 76035]]
Order 13175 do not apply to this rulemaking.
Paperwork Reduction Act
This rule does not impose any new or modify any existing reporting
or recordkeeping requirements subject to the Paperwork Reduction Act,
44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 22
Consular services, fees, passports and visas.
Accordingly, for the reasons stated in the preamble, 22 CFR part 22
is amended as follows:
PART 22--[AMENDED]
0
1. The authority citation for part 22 is revised to read as follows:
Authority: 8 U.S.C. 1101 note, 1153 note, 1183a note, 1351,
1351 note, 1713, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157
note; 22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215,
4219, 6551; 31 U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957);
Exec. Order 11,295, 31 FR 10603 (1966).
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2. Revise Sec. 22.1 Item 21 to read as follows:
Sec. 22.1 Schedule of fees.
* * * * *
Schedule of Fees for Consular Services
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Item No. Fee
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* * * * * * *
Nonimmigrant Visa Services
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21. Nonimmigrant visa and border crossing card application
processing fees (per person):
(a) Non-petition-based nonimmigrant visa (except E $140
category)...............................................
(b) H, L, O, P, Q and R category nonimmigrant visa....... $150
(c) E category nonimmigrant visa......................... $390
(d) K category nonimmigrant visa......................... $350
(e) Border crossing card--age 15 and over (valid 10 $140
years)..................................................
(f) Border crossing card--under age 15; for Mexican $14
citizens if parent or guardian has or is applying for a
border crossing card (valid 10 years or until the
applicant reaches age 15, whichever is sooner)..........
* * * * * * *
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Dated: August 9, 2011.
Patrick F. Kennedy,
Under Secretary of State for Management, Department of State.
[FR Doc. 2011-31175 Filed 12-5-11; 8:45 am]
BILLING CODE 4710-06-P