LegiStorm

Summary:
Highlights

GAO reviewed the Department of Homeland Security's (DHS) new rule entitled "Implementation of the Emergency Stopgap USCIS Stabilization Act." GAO found that the final rule: (1) amends premium processing regulations to codify statutory changes made by the Continuing Appropriations Act, 2021, which included the Emergency Stopgap USCIS Stabilization Act; and (2) amends DHS premium processing regulations by updating the regulations to include the fees established by the USCIS Stabilization Act for immigration benefit requests that were designated for premium processing on August 1, 2020, and establishing new fees and processing timeframes consistent with the USCIS Stabilization Act.

Enclosed is our assessment of DHS's compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.





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B-334164

April 7, 2022

The Honorable Richard J. Durbin
Chairman
The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
United States Senate

The Honorable Jerrold Nadler
Chairman
The Honorable Jim Jordan
Ranking Member
Committee on the Judiciary
House of Representatives

Subject: Department of Homeland Security: Implementation of the Emergency Stopgap USCIS Stabilization Act

Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major rule promulgated by the Department of Homeland Security (DHS) entitled ?Implementation of the Emergency Stopgap USCIS Stabilization Act? (RIN: 1615-AC73). We received the rule on March 30, 2022. It was published in the Federal Register as a final rule on March 30, 2022. 87 Fed. Reg. 18227. The effective date is May 31, 2022.

The final rule, according to DHS, amends premium processing regulations to codify statutory changes made by the Continuing Appropriations Act, 2021, Pub. L. No. 116-159, 134 Stat. 709 (Oct. 1, 2020), which included the Emergency Stopgap USCIS Stabilization Act. Pub. L. No. 116-159, div. D, title I, 134 Stat. at 738 (USCIS Stabilization Act). DHS stated that the USCIS Stabilization Act amended the Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (June 27, 1952), by modifying U.S. Citizenship and Immigration Services? authority to provide premium processing services and to establish and collect premium processing fees for those services. DHS further stated that the rule amends DHS premium processing regulations by updating the regulations to include the fees established by the USCIS Stabilization Act for immigration benefit requests that were designated for premium processing on August 1, 2020, and establishing new fees and processing timeframes consistent with the USCIS Stabilization Act.

Enclosed is our assessment of DHS?s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.


Shirley A. Jones
Managing Associate General Counsel

Enclosure

cc: Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy & Strategy, USCIS
Department of Homeland Security

ENCLOSURE

REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE
ISSUED BY THE
DEPARTMENT OF HOMELAND SECURITY
ENTITLED
?IMPLEMENTATION OF THE EMERGENCY STOPGAP
USCIS STABILIZATION ACT?
(RIN: 1615-AC73)

(i) Cost-benefit analysis

The Department of Homeland Security (DHS) provided a summary of the benefits and costs of this final rule. DHS stated that the rule provides DHS with the opportunity to increase revenue in order to make infrastructure improvements and improve processing times. DHS explained that the rule benefits petitioners of Form I-140 who were previously ineligible for premium processing, but will now be eligible following implementation of the rule to request expedited review of their petitions. As a result, according to DHS, an adjudicative action would be taken more quickly, which benefits businesses that previously would have had to wait longer to receive adjudicative action for an employee. DHS also stated that the rule benefits applicants of Form I-539 who will have the option to receive a decision on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Lastly, DHS stated that applicants of Form I-765 would benefit through receipt of an adjudicative decision in a specified timeframe, making those applicants eligible to work legally in the United States sooner than they would previously.

Regarding costs, DHS explained that for the 10-year implementation period of the rule, if year one is fiscal year 2021, it estimates the annualized cost to be $13 million discounted at three percent and $12 million discounted at seven percent. DHS stated that these costs are from the opportunity costs of time that newly eligible populations of Forms I-140, I-539, and I-765 will incur to request premium processing. Further, DHS explained that for the 10-year implementation period of the rule, it estimates the annualized transfer payments from the Form I-129 and Form I-140 fee-paying population, and from newly eligible classifications of Form I?140 petitioners, Form I-539 applicants, and Form I-765 applicants to DHS to be $743 million discounted at three percent and $729 million discounted at seven percent, due to the increase in filing fees.

(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603?605, 607, and 609

DHS stated that this final rule is exempt from notice-and-comment rulemaking and, therefore, a regulatory flexibility analysis is not required for the rule.

(iii) Agency actions relevant to sections 202?205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532?1535

DHS stated that this final rule is exempt from the written statement requirement of the Act because DHS did not publish a notice of proposed rulemaking for the rule. In addition, DHS stated that the inflation-adjusted value of $100 million in 1995 is approximately $178 million in 2021 based on the Consumer Price Index for All Urban Consumers; that the rule does not contain a federal mandate as the term is defined under the Act; and that the requirements of the Act do not apply.

(iv) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

DHS stated that the changes made in this final rule do not require advanced notice and comment because the changes are (1) exempt from the requirements of 5 U.S.C. § 553 by section 4102(b)(1) of the Emergency Stopgap USCIS Stabilization Act, Pub. L. No. 116-159, div. D, title I, 134 Stat. 738 (Oct. 1, 2020); (2) exempt from public comment under 5 U.S.C. § 553(b)(B) because they merely restate existing law; or (3) exempt as procedural under 5 U.S.C. § 553(b)(A).

Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501?3520

DHS stated that it will revise one information collection associated with Form I-907, Request for Premium Processing Service, Office of Management and Budget (OMB) Control Number 1615?0048. DHS also stated that it will require non-substantive edits to Form I-539, Application to Extend/Change Nonimmigrant Status, OMB Control Number 1615-0003; Form I-765, Application for Employment Authorization, OMB Control Number 1615-0040; Form I-129, Petition for a Nonimmigrant Worker, OMB Control Number 1615-0009; and Form I-140, Immigrant Petition for an Alien Worker, OMB Control Number 1615-0015. DHS stated that it has sought OMB review and approval in accordance with the PRA.

Statutory authorization for the rule

DHS promulgated this final rule pursuant to sections 1101, 1103, 1254a, 1254b, 1304, and 1356 of title 8, United States Code; section 1806 of title 48, United States Code; and Public Law Numbers 107-609, 115-218, and 116-159.

Executive Order No. 12866 (Regulatory Planning and Review)

DHS stated that the Office of Information and Regulatory Affairs (OIRA), within OMB, has designated this final rule an economically significant regulatory action under the Order and that OIRA has reviewed the rule.

Executive Order No. 13132 (Federalism)

DHS stated that this final rule does 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, according to DHS, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.




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