Brief Notes and Comments on Proposed Changes to 8 CFR

On May 4, 2016 the Department of Homeland Security published proposed changes to Title 8 of the Code of Federal Regulations. While the greatest focus on these proposed changes has been on the fee increase, there are some other areas that may be important and warrant comment. The point of this post is not to analyze these changes in great detail, but to serve as a starting point for developing comments on the proposed regulations. Comments may be submitted online, and are due by July 5, 2016.

Footnote 54, which notes evidence of a surge in applications prior to a fee increase, may be of particular interest to petitioners, beneficiaries, and immigration practitioners.

Petitions with Dishonored Checks Immediately Rejected

Under current regulations, petitions submitted with dishonored checks are held in the queue for 14 days, and the petitioner is given the opportunity to pay an additional fee and correct the deficiency. Under the proposed changes, these petitions will now be immediately rejected. This change is discussed in the context of H-1B petitions, but would apply across the board. The rationale is that it’s unfair for a petitioner with a deficient payment to hold a spot in the lottery while a petitioner with a complete payment but behind in the queue misses the opportunity.

This change seems perfectly fair in the H-1B context where there are a limited number of visas each year and the category is routinely over-subscribed. In other contexts, however, this change may cause a severe consequence to a petitioner, beneficiary, or applicant even if the error is caused by the bank. The proposed changes acknowledge this reality in another section. If the filing is rejected outright due to insufficient payment caused by a bank error, USCIS will incur additional costs as a result of increased volume of requests under 8 CFR 214.1(a)(4). USCIS should therefore re-consider this proposal outside the H-1B context.

Fee increases are proposed based on Form number, not benefit type

Most of USCIS’s activities are assigned a cost based on volume because the activity takes the same amount of time regardless of the benefit sought. For example, the “Intake” activity, involving “mailroom operations, data entry and collection, file assembly, fee receipting, adjudication of fee waiver requests, and file room operations” takes the same amount of time for an I-526 petition as it does for an I-131 request.

The “Make Determination” activity, by contrast is allocated across immigration benefit requests by projected adjudication hours.

The fourth stage in the ABC process assigns activity costs to immigration benefit requests (cost objects). For most activities, USCIS assigns activity costs to cost objects based on the percentage of total projected workload volume because, for these activities, similar time and effort are involved for each benefit request. Unique activity drivers are used for two activities: Make Determination and Perform Biometric Services.

USCIS allocates the Make Determination activity across immigration benefit requests by projected adjudication hours. USCIS calculates projected adjudication hours by multiplying projected volumes by completion rates for most benefit types. Completion rates are the average time that Immigration Service Officers (ISOs) require to adjudicate immigration benefit requests. In general, the more time spent adjudicating a request, the more cost that gets assigned to that request and, therefore, the higher the fee.

It’s not technically true to say that the projected adjudication hours are the product of projected volumes and completion rates for most “benefit types.” As the charts in the proposed rule change make clear, the projected adjudication numbers are not based on benefit type, but form number. A “benefit request” is “any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit.”  A “benefit type,” should therefore mean a request for a specific type of immigration benefit, such as the classifications defined by 8 CFR 214.1(a)(2).

This distinction matters because under USCIS’s methodology, it assigns the same adjudication time (and thus the same cost) to a TN renewal petition as a new office L-1A petition. While these classifications share some common features, they are different enough to constitute different “benefit types.” For example, dual intent, or lack thereof, makes these two classifications different benefit types.

As different benefit types, a TN renewal and a new office L-1A should be assigned different adjudication times and different costs. Adjudicating a TN renewal should take far less time than the 48 minutes allocated to Form I-129. The beneficiary’s credentials will not change from the previous approval, and the bona fides of the petitioner should be vetted at an earlier stage of the process, which is assigned a fixed cost. The only thing left for the adjudicator to do is ensure that the job offer meets the regulatory requirements. By contrast, adjudicating a new office L-1A petition may take much longer than the allocated 48 minutes because the adjudicating officer will need to review the business plan to confirm whether the new office will support an executive or managerial position within one year. Filing fees for the different benefit types should be adjusted accordingly.

Fee Increases for waiver applications should be re-considered

Form I-192 is used in three situations: (1) application for T non-immigrant classification, (2) application for U non-immigrant classification, and (3) application for a waiver of inadmissibility when the applicant already has non-immigrant documentation, i.e. a visa. Only the first two scenarios are adjudicated by USCIS, however, the fee increase will apply to all three situations. It’s unclear from the notice published in the federal register whether the fees paid for non-immigrant waivers are paid into the SAVE account and used by USCIS as part of its operating budget. Since CBP, and not USCIS, adjudicates the waiver applications it would seem that adjudication of these applications does not increase USCIS’s cost burden.

Even more unfair, is that this change burdens Canadian (and Bermudan) non-immigrant waiver applicants more than other applicants for a non-immigrant waiver. Non-immigrants from other countries submit waiver applications at the same time as visa applications at no additional charge. Canadians, however, do not require a visa to enter the United States, and thus pay the full filing fee to submit the waiver application. An increase in the filing fee will hurt local economies in border towns because every dollar spent on a waiver application is a dollar not spent on tourism or retail. Before imposing this across the board fee increase, the Department of Homeland Security should think more carefully about what, exactly, it is trying to secure.

 Hours per form chart – a useful tool for practitioners

At Table 6, USCIS lists the hours that each adjudicator is expected to spend per case for each type of form. By combining this information with the information found in the Adjudicator’s Field Manual, practitioners can reduce the likelihood of an RFE and perhaps obtain approvals more quickly. In an L-1A petition, for example, the average adjudication time is 48 minutes. If the evidence is organized in the same order as the Adjudicator’s Field Manual, the adjudicating officer should be able to review and approve the petition within the average adjudication time, and thus issue an approval notice more quickly.

As another example, I-526 petitions have an average adjudication time of just over 40 hours. Adjudication of petitions by investors in a regional center with an approved exemplar should be significantly below this average time, while direct investments in start-up businesses are likely to take longer than average. Potential EB-5 investors may therefore need to be advised that a regional center with an approved exemplar has an additional advantage for immigration purposes.

We will be submitting a modified version of this post as comments, and urge anyone affected by these changes to respond similarly to DHS. Some of the fee increases appear unfair to certain applicants given that the adjudication burden is unclear, and may not consider all cases. The hidden gem in the proposed changes for practitioners is the average adjudication times, which can be used to guide petition preparation.

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