Sec. 601. Immigration service fees
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Subsection
(m)of section 286 of the Immigration and Nationality Act ( 8 U.S.C. 1356(m) ) is amended to read as follows: Except as provided in paragraph
(2)and notwithstanding any other provision of law, all adjudication fees as are designated by the Secretary of Homeland Security in regulations shall be deposited as offsetting receipts into a separate account entitled Immigration Examinations Fee Account in the Treasury of the United States, whether collected directly by the Secretary or through clerks of courts. All fees received by the Secretary of Homeland Security from applicants residing in the Virgin Islands of the United States, or in Guam, under this subsection shall be paid over to the treasury of the Virgin Islands or to the treasury of Guam, respectively. Subject to subparagraph (B), the Secretary of Homeland Security may set fees for providing immigration services at a level that will— ensure recovery of the full costs of providing such services, or a portion thereof, including the costs of similar services provided without charge to asylum applicants or other immigrants; and recover the full cost of administering the collection of fees under this paragraph, or a portion thereof. The Secretary of Homeland Security may not increase any fee under this paragraph above the level of such fee on the day before the date of the introduction of the Citizenship Promotion Act of 2009, until— the Secretary submits to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that— identifies the direct and overhead costs associated with providing immigration services, and distinguishes such costs from immigration enforcement and national security costs; identifies the costs allocable to providing the premium processing services to business customers prescribed by section 286(u) of this Act; describes the extent to which the fee prescribed in that section is set at a level that ensures recovery of those costs; and identifies the amount of funding that is being allocated for the infrastructure improvements in the adjudications and customer-service processes as prescribed by that section; and contains information regarding the amount the fee will be increased; and a period of 45 days has expired beginning on the date that the report in clause
(i)is received by the committees described in such clause. Except as otherwise provided in this paragraph, any of the fees for immigration services described in paragraph (3)(A) of this section may be waived by the Department of Homeland Security in any case under its jurisdiction in which the alien or other party affected is able to substantiate that he or she is unable to pay the prescribed fee. The person seeking a fee waiver must file his or her affidavit, or unsworn declaration made pursuant to section 1746 of title 28, United States Code, asking for permission to prosecute without payment of fee of the application, petition, appeal, motion, or request, and stating his or her belief that he or she is entitled to or deserving of the benefit requested and the reasons for his or her inability to pay. The officer of the Department of Homeland Security having jurisdiction to render a decision on the application, petition, appeal, motion, or request may, in his or her discretion, grant the waiver of fee. The payment of the additional sum prescribed by section 245(i) of the Act when applying for adjustment of status under section 245 of the Act may not be waived. The fee for the employment-based petitions and applications prescribed by section 286(u) of the Act may not be waived. The Secretary of Homeland Security shall prescribe by regulations the criteria that applicants must meet for the approval of the waivers of fees in subparagraph (A), and the documentation that applicants must submit to substantiate that they meet such criteria. The regulations shall include a form for the affidavit or declaration described in subparagraph
(A)that must be completed by applicants for the waivers of fees. An applicant shall be deemed to have substantiated that he or she is unable to pay the prescribed fee if— the individual has demonstrated that within 180 days of the receipt of the application, he or she qualified for or received any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104–193 ; or the individual has demonstrated that his or her annual household income is at or below 125 percent of the poverty level, as indicated in the most recent Federal poverty guidelines set by the Secretary of Health and Human Services. . It is the sense of Congress that— the Secretary of Homeland Security should set fees under section 286(m)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1356(m)(3) ), as amended by subsection
(a)of this section, at a level that ensures recovery of only the direct costs associated with the services described in such section 286(m)(3); and Congress should appropriate to the Secretary of Homeland Security such funds as may be necessary to cover the indirect costs associated with the services described in such section 286(m)(3). Section 286 of the Immigration and Nationality Act ( 8 U.S.C. 1356 ) is amended— in subsections (d), (e), (f), (h), (i), (j), (k), (l), (n), (o), (q), (t), and (u), by striking Attorney General each place it appears and inserting Secretary of Homeland Security ; in subsection
(i)of such section, by striking Attorney General’s and inserting Secretary’s ; and in subsection (r)— in paragraph (2), by striking Department of Justice and inserting Department of Homeland Security ; and in paragraphs
(3)and (4), by striking Attorney General each place it appears and inserting Secretary of Homeland Security . Fees and fines deposited in the Security and Prosperity Account under section 286(w)(3)(B) of the Immigration and Nationality Act may be used to carry out this section.
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- Pub. L. 104-193
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