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  • News: DOS Final Rule on Schedule of Fees for Consular Services

    Federal Register, Volume 80 Issue 164 (Tuesday, August 25, 2015)
    [Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
    [Rules and Regulations]
    [Pages 51464-51466]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2015-21042]
    
    
    
    [[Page 51464]]
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF STATE
    
    22 CFR Part 22
    
    [Public Notice: 9230]
    RIN 1400-AD47
    
    
    Schedule of Fees for Consular Services, Department of State and 
    Overseas Embassies and Consulates
    
    AGENCY: Department of State.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This rule adopts as final the interim final rule published in 
    the Federal Register on August 28, 2014. Specifically, the rule 
    implemented changes to the Schedule of Fees for Consular Services 
    (``Schedule'') for a number of different fees. This rulemaking 
    addresses public comments and adopts as final the changes to these 
    fees.
    
    DATES: The Effective date of the final rule published in the Federal 
    Register of August 28, 2014 (79 FR 51247) is confirmed effective 
    September 6, 2014.
    
    FOR FURTHER INFORMATION CONTACT: Jill Warning, Office of the 
    Comptroller, Bureau of Consular Affairs, Department of State; phone: 
    202-485-6683, telefax: 202-485-6826; email: fees@state.gov.
    
    SUPPLEMENTARY INFORMATION: For the complete explanation of the 
    background of this rule, including the rationale for the change, the 
    authority of the Department of State (``Department'') to make the fee 
    changes in question, and an explanation of the study that produced the 
    fee amounts, consult the prior public notices cited in the 
    ``Background'' section below.
    
    Background
    
        The Department published an interim final rule in the Federal 
    Register, 79 FR 51247, on August 28, 2014, amending sections of 22 CFR 
    part 22. Specifically, the rule amended the Schedule of Fees for 
    Consular Services and provided 60 days for comments from the public. 
    During this 60-day comment period, more than 70 comments were received, 
    either by mail, email, or through the submission process at 
    www.regulations.gov.
        This rule establishes the following fees for the categories below:
    
    --Administrative Processing of Formal Renunciation of U.S. Citizenship 
    from $450 to $2,350
    --E Category Nonimmigrant Visas from $270 to $205
    --K Category Nonimmigrant Visas from $240 to $265
    --Immigrant Visa Application Processing Fees (per person)
    [cir] Immediate relative and family preference applications from $230 
    to $325
    [cir] Employment-based applications from $405 to $345
    [cir] Other immigrant visa applications (including I-360 self-
    petitioners and special immigrant visa applicants) from $220 to $205
    --Affidavit of Support Review from $88 to $120
    --Special Visa Services
    [cir] Determining Returning Resident Status from $275 to $180
    [cir] Waiver of Two-Year Residency Requirement from $215 to $120
    --Consular Time Charges from $231 to $135
    
        The fee change for the reduced Border Crossing Card fee for Mexican 
    citizens under age 15 whose parent or guardian has or is applying for a 
    Border Crossing Card is not included in this final rule. This fee was 
    included in the interim final rule published in August 2014, and raised 
    from $15 to $16. The same month, Congress ordered this fee to be 
    increased by $1 pursuant to Section 2 of Public Law 113-160. This 
    additional increase was implemented in a final rule published on 
    December 31, 2014, which raised this fee from $16 to $17. See 79 FR 
    79064. Therefore, this fee is not included in this final rule.
        The original publication of the interim final rule included an 
    incorrect effective date of September 6, 2014, for the above changes in 
    fees. That date was subsequently corrected, but the correction 
    contained an error (erroneously stating ``September 12, 2104''). See 79 
    FR 52197. The correct effective date is reflected herein; it is 
    September 12, 2014.
    
    Analysis of Comments
    
        In the 60-day period since the publication of the interim final 
    rule, more than 70 comments were received.
        The large majority of the comments received expressed concern about 
    the increased fee for the Administrative Processing of Formal 
    Renunciation of U.S. Citizenship.
        Most commenters requested to pay a lower fee for the renunciation 
    service, suggesting that they be grandfathered in to the previous fee 
    of $450. The majority of these commenters had initiated the process of 
    renouncing their nationality prior to the announcement of the new 
    fee.\1\ Over half of commenters requested to pay the previous fee after 
    the new fee went into effect, five commenters asked for earlier 
    appointments in order to pay the previous fee, and one commenter 
    requested a refund for the difference between the new fee and the 
    previous fee. Several commenters characterized the 15-day notice of the 
    fee change as unfair and suggested that they should have been notified 
    earlier if the fee was likely to change.
    ---------------------------------------------------------------------------
    
        \1\ Section 101(a)(22) of the Immigration and Nationality Act 
    (INA) states that ``the term `national of the United States' means 
    (A) a citizen of the United States, or (B) a person who, though not 
    a citizen of the United States, owes permanent allegiance to the 
    United States.'' Therefore, U.S. citizens are also U.S. nationals. 
    Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
    1481) governs how a U.S. national shall lose U.S. nationality. 
    Therefore, the terms ``national'' and ``nationality'' are used 
    throughout this rule except for references to specific instances of 
    ``citizen'' or ``citizenship.''
    ---------------------------------------------------------------------------
    
        The Department's policy for citizenship-related services, including 
    the Administrative Processing of Formal Renunciation of U.S. 
    Citizenship, is to collect the fee in effect at the time that the 
    service is provided. Although the renunciation process involves 
    multiple steps, the service is rendered when the oath to renounce one's 
    nationality is sworn. U.S. nationals who intend to renounce their 
    nationality and have a meeting or information session with the consular 
    post for that purpose, but who change their minds and do not take the 
    oath, are not charged the fee. In the interest of fairness, the 
    Department must assess the renunciation fee when the core service is 
    performed, rather than upon the provision of information. Therefore, 
    the Department does not offer a lower fee or refunds for those who 
    receive the renunciation service after the new fee went into effect on 
    September 12, 2014. Furthermore, embassies and consulates do not have 
    authority to waive the fee, reduce the fee, or provide a refund where 
    the fee is properly collected. In addition, although one commenter 
    contended that the rule-making process was ``truncated,'' the interim 
    final rule was published pursuant to the ``good cause'' exceptions set 
    forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The Department deemed 
    that delaying implementation would be contrary to the public interest 
    because several fees included in this rulemaking pay for consular 
    services that are critical to national security. Rules that are exempt 
    from notice and comment are often effective immediately upon 
    publication, so the 15-day notice in this case was more notice than is 
    often provided in such instances.
        More than one-third of the comments suggested that the increased 
    fee to process renunciations is a burden. These commenters asserted 
    that the new fee is too costly. Some expressed concern about their own 
    ability to afford the higher fee, pointing to personal
    
    [[Page 51465]]
    
    circumstances including low income, student status, and senior citizen 
    status. In addition, a few of these commenters asserted that 
    nationality renunciation is a constitutional or human right. They 
    stated that the increased fee acts as a deterrent to renouncing one's 
    nationality, thereby violating the right to expatriate, and suggested 
    that the renunciation service should be offered at no or low cost. 
    Specifically, two commenters cited the Expatriation Act of 1868 and 
    Universal Declaration of Human Rights, both of which address the right 
    of expatriation.
        In raising the fee to process renunciations, the Department has not 
    restricted or burdened the right of expatriation. Further, the fee is 
    not punitive, and is unrelated to the IRS tax legislation criticized in 
    some comments, except to the extent that the legislation caused an 
    increase in consular workload that must be paid for by user fees. 
    Rather, the fee is a cost-based user fee for consular services. 
    Conforming to guidance from the Office of Management and Budget (OMB), 
    federal agencies make every effort to ensure that each service provided 
    to specific recipients is self-sustaining, charging fees that are 
    sufficient to recover the full cost to the government. (See OMB 
    Circular A-25, ] 6(a)(1), (a)(2)(a).) Because costs change from year to 
    year, the Department conducts an annual update of the Cost of Service 
    Model (CoSM) to obtain the most accurate calculation of the costs of 
    providing consular services. In addition to enabling the government to 
    recover costs, the study also helps the Department to avoid charging 
    consumers more than the cost of the services they consume. In sum, the 
    increased fee for processing renunciations is a ``user charge,'' which 
    reflects the full cost to the U.S. government of providing the service.
        On a per-service basis, renunciation is among the most time-
    consuming of all consular services. In the past, however, the 
    Department charged less than the full cost of the renunciation service. 
    The total number of renunciations was previously small and constituted 
    a minor demand on the Department's resources. Consequently, it was 
    difficult to assess accurately the cost of the service. In contrast, in 
    recent years, the number of people requesting the renunciation service 
    has risen dramatically, driven in part by tax legislation affecting 
    U.S. taxpayers abroad, including the Foreign Account Tax Compliance Act 
    (FATCA), materially increasing the resources devoted to providing the 
    service. At one post alone, renunciations rose from under 100 in 2009 
    to more than 1,100 in the first ten months of 2014. Finally, 
    improvements to the CoSM made the cost of the renunciation service more 
    apparent. For all these reasons, the Department decided to raise the 
    fee to reflect the full cost of the service.
        The Department has closely examined comments regarding the right of 
    expatriation, which is addressed in the Immigration and Nationality Act 
    and the Universal Declaration of Human Rights. The increased fee, 
    however, does not impinge on the right of expatriation. Rather, the 
    increased fee reflects the amount of resources necessary for the U.S. 
    government to verify that all constitutional and other requirements for 
    expatriation are satisfied in every case. As described in detail below, 
    the process of expatriation for a U.S. national requires a thorough, 
    serious, time-consuming process, in view of U.S. Supreme Court 
    jurisprudence that declared unconstitutional an involuntary or forcible 
    expatriation. In Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. 
    Terrazas, 444 U.S. 252 (1980), the Supreme Court ruled that 
    expatriation requires the voluntary commission of an expatriating act 
    with the intention or assent of the citizen to relinquish citizenship. 
    It is therefore incumbent upon the Department to maintain and implement 
    procedures, as described below, that allow consular officers and other 
    Department employees to ensure these requirements are satisfied in 
    every expatriation case.
        A few commenters questioned the rationale for raising the 
    renunciation fee, seeking more insight into how the fee is determined. 
    Some commenters disputed that the higher fee actually represents the 
    true cost of processing a renunciation. In particular, one commenter 
    applied the Consular Time Charge of $135 to the renunciation fee and 
    asked whether the service actually takes 17 hours. Another commenter 
    specifically requested more information about the CoSM.
        As described in the interim final rule, the CoSM uses activity-
    based costing to identify, describe, assign costs to, and report on 
    agency operations. Using a process view, the model assigns resource 
    costs such as salaries, travel, and supplies to different activities 
    such as adjudicating an application or printing a visa foil. These 
    activity costs are then assigned to cost objects, or products and 
    services (visas, passports, administrative processing of a 
    renunciation), to determine how much each service costs.
        The CoSM demonstrated that documenting a U.S. national's 
    renunciation of nationality is extremely costly. The cost of the 
    service is not limited to the time consular officers spend with the 
    renunciant at the appointment. The application is reviewed both 
    overseas and domestically, requiring a substantial amount of time to 
    ensure full compliance with the law. Through the provision of 
    substantial information and one or two in-person interviews, the 
    consular officer must determine that the individual is indeed a U.S. 
    national, advise the individual on the consequences of loss of 
    nationality, and determine that the individual fully intends to 
    relinquish all the rights and privileges attendant to U.S. nationality, 
    including the ability to reside in the United States unless properly 
    documented as an alien. The consular officer also must determine 
    whether the individual is seeking loss of nationality voluntarily or is 
    under duress, a process that can be demanding in the case of minors or 
    individuals with a developmental disability or mental illness. At the 
    oath-taking interview, the consular officer must document the 
    renunciation service on several forms signed by the individual seeking 
    loss of nationality. The consular officer also must document the 
    service in consular systems as well as in memoranda from the consular 
    officer to headquarters. All forms and memoranda are closely reviewed 
    at headquarters by a country officer and a senior approving officer 
    within the Bureau of Consular Affairs, and may include consultation 
    with legal advisers within the Bureau of Consular Affairs and the 
    Office of the Legal Adviser. Some applications require multiple rounds 
    of correspondence between post and headquarters.
        Each individual issued a Certificate of Loss of Nationality also is 
    advised of the possibility of seeking a future Administrative Review of 
    the loss of nationality, a process that is conducted by the Office of 
    Legal Affairs, Directorate of Overseas Citizens Service, Bureau of 
    Consular Affairs. This review must consider whether the statute 
    pursuant to which the initial finding of loss of nationality was made 
    has been deemed to be unconstitutional. The review must also take 
    notice of any significant change in the analysis of expatriation cases 
    following a holding of the Supreme Court. Furthermore, the review must 
    also take notice of any change in the interpretation of expatriation 
    law that is adopted by the Department. Lastly, the review must evaluate 
    evidence submitted by the expatriate that indicates that his or her 
    commission of a statutory act of expatriation was either involuntary or
    
    [[Page 51466]]
    
    done without intending to relinquish his/her U.S. nationality.
        In addition to the time spent processing renunciations overseas and 
    domestically, the full cost of processing renunciations includes a 
    portion of overhead costs that support consular operations overseas per 
    OMB Circular A-25, Revised. These costs include overseas rent and 
    security, information technology equipment, and applicable headquarters 
    support. The Consular Time Charge of $135 per hour was not used in 
    calculating the cost of a renunciation service. The Consular Time 
    Charge is used in conjunction with other for-fee services listed on the 
    Schedule of Fees for Consular Services that are provided outside of the 
    office or outside of normal working hours.
        Four comments asserted that the renunciation should be made more 
    efficient rather than more costly. A few asked if there were ways to 
    reduce bureaucracy and paperwork to lower the cost of the service. 
    Specifically, one commenter pointed to the German renunciation process, 
    which involves an online application, mailed certified copies of 
    certain documents, and no in-person interviews. As described above, 
    certain legal requirements exist in the U.S. system, unique to our laws 
    and jurisprudence, to protect both the integrity of the process and the 
    rights of those renouncing. The renunciation process involves 
    significant safeguards to ensure that the renunciant is a U.S. 
    national, fully understands the serious consequences of renunciation, 
    and seeks to renounce voluntarily and intentionally. In short, the 
    comprehensive process of expatriation under U.S. law does not impinge, 
    but rather protects, the right of expatriation.
        Finally, two comments raised questions about payment options and 
    sought clarification on the effective date for the fee change. The new 
    fee for processing renunciations took effect September 12, 2014. 
    Payment by credit card (at most posts) or cash (in local or U.S. 
    currency) is accepted at post at the time that the oath of renunciation 
    is sworn.
        In addition to the comments on the renunciation fee increase, the 
    Department also received eight comments about the changes in immigrant 
    and nonimmigrant visa fees. Most sought clarification on how the visa 
    fees were changing, which payment options are available, and when the 
    new fees will go into effect. One commenter asserted that the visa fees 
    are set too low.
        All tiered immigrant and nonimmigrant visa fees addressed in this 
    rulemaking are set to reflect the costs of providing each service. The 
    new visa fees went into effect on September 12, 2014. Further details 
    on particular fees, including payment options, can be found on the Web 
    site of the embassy or consulate where the applicant would like to make 
    a visa appointment.
    
    Conclusion
    
        The Department adjusted the fees in light of the CoSM's findings 
    that the U.S. government was not fully covering its costs for providing 
    these consular services. Pursuant to OMB guidance, 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, ] 6(a)(1), (a)(2)(a). For this reason, the Department 
    has adjusted the Schedule.
    
    Regulatory Findings
    
        For a summary of the regulatory findings and analyses regarding 
    this rulemaking, please refer to the findings and analyses published 
    with the interim final rule, which can be found at 79 FR 51247, which 
    are adopted herein. The rule became effective September 6, 2014. As 
    noted above, the Department has considered the comments submitted in 
    response to the interim final rule, and does not adopt them. Thus, the 
    rule remains in effect.
        This proposed rule is not a significant regulatory action under 
    section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
    as supplemented by Executive Order 13563, Improving Regulation and 
    Regulatory Review, and does not require an assessment of potential 
    costs and benefits under section 6(a)(3) of Executive Order 12866 or 
    under section 1 of Executive Order 13563. OMB has not reviewed it under 
    those Orders. The Department of State has also considered this rule in 
    light of Executive Order 13563, dated January 18, 2011, and affirms 
    that this regulation is consistent with the guidance therein.
    
    List of Subjects in 22 CFR Part 22
    
        Consular services, Fees, Passports, and Visas.
    
        Accordingly, the interim final rule amending 22 CFR part 22, which 
    was published in the Federal Register, 79 FR 51247, on August 28, 2014 
    (Public Notice 8850), effective September 6, 2014, is adopted.
    
        Dated: August 10, 2015.
    Patrick F. Kennedy,
    Under Secretary of State for Management, U.S. Department of State.
    [FR Doc. 2015-21042 Filed 8-24-15; 8:45 am]
     BILLING CODE 4710-06-P
    
    
    
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