E Kinney

It's coming!
Green Cards (I-551) without expiration dates are going to be phased out.

http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-16311.htm


[Federal Register: August 22, 2007 (Volume 72, Number 162)]
[Proposed Rules]
[Page 46922-46930]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au07-33]

================================================== ====================-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Parts 1, 264, and 299

[CIS No. 2354-05; DHS Docket No. USCIS-2005-0056]
RIN 1615-AB36


Application Process for Replacing Forms I-551 Without an
Expiration Date

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: U.S. Citizenship and Immigration Services (USCIS) issues
Permanent Resident Cards (Forms I-551) to lawful permanent residents to
serve as evidence of immigration status, registration, identity, and
employment authorization, and as an entry document upon return from a
trip outside of the United States. Currently, there are numerous lawful
permanent residents who possess cards without expiration dates. USCIS
intends to terminate the validity of such Forms I-551. This rule
proposes to establish a 120-day period for lawful permanent residents
who have Forms I-551 that do not bear expiration dates to apply for
replacement cards. This rule also proposes to amend USCIS regulations
to remove references to outdated application procedures for Forms I-
551. The application process proposed by this rule will enable USCIS to
issue more secure Forms I-551 to affected aliens, update cardholder
information, conduct background checks, and electronically store
applicants' biometric information that can be used for biometric
comparison and authentication purposes consistent with the goals of the
Enhanced Border Security and Visa Entry Reform Act of 2002.
In addition, USCIS proposes to notify the public of the termination
date for Forms I-551 without expiration dates by a subsequent Notice
published in the Federal Register. This rule also proposes to correct
the title and edition date of the ``Application to Replace

[[Page 46923]]

Lawful Permanent Resident Card,'' Form I-90.

DATES: Written comments must be submitted on or before September 21,
2007.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2005-0056, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS Docket No. USCIS-2005-0056 in the
subject line of the message.
Mail: The Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2005-0056
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number is (202)
272-8377.

FOR FURTHER INFORMATION CONTACT: R. Mark Phillips, Supervisory
Adjudications Policy Officer, U.S. Citizenship and Immigration
Services, 20 Massachusetts Ave., Suite 2304, Washington, DC 20529,
telephone (202) 272-8350.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. The Department of Homeland Security (DHS) and U.S.
Citizenship and Immigration Services (USCIS) also invite comments that
relate to the economic or federalism effects that might result from
this proposed rule. Comments that will provide the most assistance to
USCIS will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include data, information,
or authority to support such recommended change.
Instructions: All submissions received must include the agency name
and DHS docket No. USCIS-2005-0056 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,

including any personal information provided. See ADDRESSES above for
information on how to submit comments.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments

may also be inspected at the office of the Director, Regulatory
Management Division, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd
Floor, Washington, DC 20529.

II. Background

A. Statutory and Regulatory Authority and Purpose

A lawful permanent resident (LPR) is an alien who has been granted
the privilege of permanently living and working in the United States
(lawful permanent resident status), either by adjusting status from a
prior immigration status within the United States or by being admitted
to the United States on an immigrant visa issued abroad by the U.S.
Department of State (DOS). In most cases, USCIS must first approve an
immigrant petition for the intending immigrant. Typically, these
petitions are filed by an employer (e.g., Form I-140, Immigrant
Petition for Alien Worker) or relative (Form I-130, Petition for Alien
Relative). After the petition is granted, individuals living within the
United States can apply for adjustment of status with USCIS or, for
those in removal proceedings, the immigration court, using Form I-485,
``Application to Register Permanent Residence or Adjust Status.''
Individuals living abroad must file an application for an immigrant
visa with a DOS consular office. See 22 CFR 42.63(a)(1) (DS-230,
Application for Immigrant Visa and Alien Registration).
As part of the adjustment of status application process, applicants
are required to appear at a local USCIS Application Support Center
(ASC) and submit to registration and biometrics capture by USCIS.
Biometrics capture currently includes fingerprint imaging and a digital
photograph. Following approval of an adjustment application or after
admission to the United States on an immigration visa, the new LPR will
receive a Form I-551, Permanent Resident Card.\1\ (commonly referred to
as a ``green card''). A Form I-551 is evidence of the holder's
authorization to live and work in the United States. See Immigration
and Nationality Act (INA) sections 264(d), 274A(b)(1)(B)(ii) (8 U.S.C.
1304(d), 1324a(b)(1)(B)(ii)); 8 CFR 264.1(b); 8 CFR
274a.2(b)(1)(v)(A)(2).
---------------------------------------------------------------------------

\1\ Form I-551 has two titles--Alien Registration Receipt Card
and Permanent Resident Card--because it underwent a name change in
January 20, 1999 from ``Alien Registration Receipt Card'' to
``Permanent Resident Card,'' and both versions of Form I-551 remain
in circulation. 63 FR 70313 (Dec. 21, 1998).
---------------------------------------------------------------------------

USCIS has been authorized to collect information and require the
registration of aliens under section 262 of the INA, 8 U.S.C. 1302.
Aliens registering with USCIS are required to provide information
regarding the date and place of the alien's entry into the United
States; the activities in which the alien has been and intends to be
engaged; the length of time the alien expects to remain in the United
States; the police and criminal record, if any, of the alien; and any
additional matters prescribed by DHS or DOS. INA sec. 264(a), 8 U.S.C.
1304(a). All registered aliens over 18 years of age must carry evidence
of registration. INA sec. 264(e), 8 U.S.C. 1304(e). The failure to
carry evidence of registration is a misdemeanor offense. Id. The Form
I-551 is a form of evidence of registration issued to individuals who
are LPRs. 8 CFR 264.1(b). The Form I-551 also serves as evidence of
employment authorization and identity (see 8 CFR
274a.2(b)(1)(v)(A)(2)), and is used as an entry document upon return
from a trip outside the United States (see 8 CFR 211.1(a)(2)).
Until 1989, Forms I-551 issued to LPRs did not contain expiration
dates; therefore, those still in circulation do not require periodic
replacement. See Memorandum from Commissioner James L. Buck on Alien
Registration Documentation (Form I-551) (July 18, 1989).\2\ In August
1989, however, the then-Immigration and Naturalization Service (INS)
began issuing Forms I-551 with a 10-year expiration date, thereby
requiring the cardholder to apply periodically for a new card, and, in
so doing, appear before USCIS to update personal information, the
photograph contained on the card, and other biometric information, such
as fingerprints. See 8 CFR 264.5(a), (b), (c); Instructions to Form I-
90, ``Application to Replace Permanent Resident Card.'' The Form I-551
replacement process gives DHS an opportunity to collect updated
biometric information, conduct background checks, and issue updated
cards.
---------------------------------------------------------------------------

\2\ The public can access a copy of this memorandum from the
public docket for this rulemaking at http://www.regulations.gov, DHS

Docket No. USCIS-2005-0056.
---------------------------------------------------------------------------

When the 10-year Form I-551 was introduced in 1989, it was not
administratively feasible for the INS to terminate the validity of all
the millions of Forms I-551 in circulation that did not have expiration
dates. USCIS now

[[Page 46924]]

has established processes to enable it to require LPRs with Forms I-551
without expiration dates to apply for new cards and terminate the
validity of Forms I-551 without expiration dates. These processes
include the establishment, in 1997 and 1998, of Application Support
Centers (ASCs) across the United States that, through electronic
scheduling of appointments, currently serve as efficient intake
centers. In addition, biometrics began to be captured electronically in
1999. Finally, USCIS implemented a new, highly-automated filing
procedure in May 2005 where applicants file their Forms I-90 with a
U.S. Treasury Department-designated and operated lockbox provider that
allows USCIS to process the applications and associated fees more
expeditiously. As a result of these improvements, USCIS now has the
capability to process a large influx of Forms I-90 over a short period
of time.
The need to remove Forms I-551 without expiration dates from
circulation is supported by the Enhanced Border Security and Visa Entry
Reform Act of 2002 (``BSA''), Public Law 107-173, 116 Stat. 543 (May
14, 2002), amended by Public Law 108-299, 118 Stat. 1100 (Aug. 9,
2004). Section 302(b)(1) of the BSA, 8 U.S.C. 1732(b)(1), requires the
Secretary of Homeland Security and the Secretary of State, to issue,
not later than October 26, 2004, only machine-readable, tamper-
resistant visas and other travel and entry documents that use
biometrics identifiers. The Form I-551 falls within the scope of the
BSA because, in addition to serving as evidence of registration, it
also serves as an entry document for LPRs returning to the United
States after a trip abroad. See 8 CFR 211.1(a)(2).
Prior to October 26, 2004, USCIS determined that the Form I-551 was
compliant with the requirements of section 302(b)(1) of the BSA, 8
U.S.C. 1732(b)(1). The Form I-551, including the version that does not
contain an expiration date, is machine-readable and contains tamper-
resistant features and biometrics identifiers. While compliant, older
versions of the Form I-551 without expiration dates do not contain the
same level of tamper-resistant features and biometric identifiers as
the current version. Forms I-551 with expiration dates must be renewed
periodically, at which point USCIS can issue new cards containing
updated technologies and biometrics information. This is not possible
for Forms I-551 without expiration dates. Consequently, in order to
ensure that the Forms I-551 in circulation contain the higher level of
tamper-resistant features and biometric identifiers that currently-
issued cards contain, USCIS intends to terminate the validity of Forms
I-551 without expiration dates. In addition, USCIS must ensure that it
maintains current biometrics to enable it to conduct background checks
on Form I-551 holders to confirm that they are compliant with the laws
of the United States and that they are not a threat to national
security. By periodically requiring all Form I-551 holders to apply for
replacement cards, USCIS will be able to confirm this information and
update background and biometric information.
For these reasons, USCIS proposes to set the form, manner and time
that alien registration receipt cards are issued as authorized under
section 264(d) of the INA, 8 U.S.C. 1304(d). The rule proposes to amend
the regulations to require bearers of Forms I-551 without expiration
dates to apply for a replacement card during a 120-day application
period. This proposed rule also amends the regulations governing the
application process for replacing Forms I-551 and makes technical
corrections to the title of the application used to replace Forms I-
551. Finally, this rule proposes a mechanism for terminating Forms I-
551 without an expiration date by notice in the Federal Register.

B. Changes Made by This Rule

1. Requirement To Replace Forms I-551 Without Expiration Dates
This rule proposes to amend 8 CFR 264.5(c)(1) to add Form I-551
without an expiration date to the current list of outdated permanent
resident cards that are required to be replaced by the filing of Form
I-90, ``Application to Replace Permanent Resident Card.'' The current
list consists of Forms AR-3, AR-103, and I-151. This proposed amendment
also would impose a 120-day application period for those LPRs holding
Forms I-551 without an expiration date to apply for a replacement card.
Through the Form I-90 application process, applicants would be required
to provide their current biographic and biometric information. Based on
this information, USCIS would conduct security checks to verify the
identity of card recipients and continued eligibility for LPR status.
USCIS would charge the standard, Form I-90 application fee and the
biometric information collection service fee to cover all associated
costs. The current fees are $290 for the Form I-90 and $80 for the
biometric information collection service.\3\ After completion of the
120-day application period, USCIS would set a termination date for the
validity of such Forms I-551.
---------------------------------------------------------------------------

\3\ If an applicant is able to demonstrate that he or she is
unable to pay the standard Form I-90 fee and/or the biometric
service fee associated with the filing of a Form I-90, he or she may
request a fee waiver pursuant to 8 CFR 103.7(c). However, at
present, USCIS does not waive the biometric service fee associated
with the filing of a Form I-90. 69 FR 20528, 20529 (Apr. 15, 2004).
---------------------------------------------------------------------------

USCIS believes that an application period of 120 days will be
sufficient for affected LPRs to learn of the new requirement and to
complete the required Form I-90. USCIS plans to conduct an extensive
outreach program to alert the affected group of LPRs of the need to
apply for new cards. This outreach program would include issuing press
releases, posting program announcements and question-and-answer (Q&A)
documents to the USCIS website, distributing fliers and pamphlets at
USCIS field offices, and conducting informational meetings with
community-based organizations (CBOs). USCIS also will encourage
applicants to file the Form I-90 electronically, rather than on paper.
In general, USCIS can process I-90 applications submitted
electronically faster than those applications filed on paper. The
application form itself is not complicated and takes an estimated
average time of 55 minutes to complete. USCIS seeks public comment on
the application period.
After the 120-day application period expires, LPRs who failed to
timely file Forms I-90 to replace their Forms I-551 would still be
required to apply for a replacement card. An alien who fails to file a
Form I-90 during this application period will still hold the status of
an alien who has been lawfully admitted for permanent residence, since
this status continues until it is terminated by entry of a removal
order against the alien. 8 CFR 1.1(p). The alien will not, however, be
in compliance with the requirement under section 264(e) of the Act, 8
U.S.C. 1304(e), that the alien must have in his or her possession at
all times the evidence of his or her having registered. To obtain new
evidence of registration, the alien will need to file a Form I-90. For
any alien who does not file before the application period expires,
however, USCIS would not be able to ensure that the alien will receive
a new Form I-551 before the old Form I-551 is deemed to have expired.
Strictly speaking, an alien who is at least 18 years old, who fails to
file a timely Form I-90, and whose current Form I-551, therefore,
expires, could be prosecuted for violating section 264(e).

[[Page 46925]]

If convicted, the person could be sentenced to pay a fine of up to
$100, to imprisonment for up to 30 days, or both. It is also a
misdemeanor under section 266(a) of the Act, 8 U.S.C. 1306(a), for an
alien to fail to register as required. The alien can be prosecuted for
failure to register, however, only if the failure to register is proven
to be willful. USCIS does not anticipate that either of these criminal
sanctions would be routinely used against aliens who fail to obtain new
Forms I-551. The far more common action, should USCIS discover that an
alien's Form I-551 has expired, will be to advise the alien to file a
Form I-551 to obtain a new Form I-551. If the alien still fails to
apply for a new Form I-551, it may become feasible to prove that the
failure to do so is willful. USCIS anticipates, however, that aliens
will, generally, comply with the requirement to obtain a new Form I-
551, once they become aware of the requirement.
Once implemented as a final rule, LPRs affected by the requirements
proposed under this rule may choose to apply for naturalization during
the 120-day application period instead of a new Form I-551. However,
USCIS would not be able to guarantee the completion of its adjudication
of such naturalization applications before it terminates the validity
of Forms I-551 without expiration dates. For those LPRs who have
applied for, but do not receive, a grant of naturalization by the time
USCIS sets the termination date, USCIS may issue interim evidence of
registration.
2. Termination of the Validity of Forms I-551 Without an Expiration
Date
Forms I-551 without an expiration date will remain valid throughout
the 120-day application period that will be set by the final rule for
replacing such Forms I-551. After the 120-day application period, USCIS
will assess the number of applications received and the timeframes for
application processing and card production. Once USCIS has processed
the applications and issued replacement Forms I-551, USCIS will be in a
position to set a date for terminating the validity of Forms I-551
without expiration dates. This rule proposes amendments to 8 CFR
264.5(c)(1) to provide that USCIS will announce the termination date
after the 120-day application period through a Notice published in the
Federal Register.
USCIS is proceeding in this way to minimize the possibility that
applicants will not have received a replacement Form I-551 in hand when
the validity of their previous Form I-551 is terminated. USCIS cannot
precisely estimate the number of applications it will receive to allow
USCIS to plan exact timelines for card production and, in turn, a
termination date. USCIS will only be able to set timelines based upon
the actual volume of applications received. Issuing a separate Notice
published in the Federal Register to advise the public of the
termination of the validity of Forms I-551 without expiration dates
would allow USCIS to implement a termination date that accommodates
USCIS's processing needs and applicants' need for valid documentation.
In addition to establishing the mechanism for terminating Forms I-
551 without expiration dates, this rule also clarifies that ``Form I-
551,'' when used elsewhere in the regulations, means a valid, unexpired
Form I-551. To do so, this proposed rule would amend the list of terms
defined in 8 CFR 1.1 by adding a limiting definition of Form I-551.
Current regulations do not define Form I-551; instead, the regulations
identify its uses. As stated earlier in this Supplementary Information,
the regulations identify Form I-551 as an entry document in 8 CFR
211.1(a)(2), evidence of registration in 8 CFR 264.1(b), an immigration
status document in 8 CFR 274a.12(a)(1), and a combination identity and
employment authorization document in 8 CFR 274a.2(b)(1)(v)(A)(2). These
references to Form I-551 apply to both the version of the card with an
expiration date and the version of the card without an expiration date.
This rule proposes introducing a limiting definition of Form I-551
rather than amend each reference so that it is clear to the public what
constitutes a valid Form I-551 with respect to any of its uses,
particularly following the termination date of the validity of Forms I-
551 without an expiration date. This rule proposes to limit the term,
``Form I-551'' to mean the version of the form with an expiration date.
See proposed 8 CFR 1.1(AA). A Form I-551 that does not bear an
expiration date would not be valid for any use under the regulations
unless otherwise specifically provided in the regulations. Id.
Until the validity of Forms I-551 without an expiration is
terminated via Notice published in the Federal Register, this rule, at
8 CFR 264.1(c)(1), proposes that such Forms I-551 would remain valid.
To do otherwise would have the effect of prematurely terminating the
validity of Forms I-551. The current regulations permit the use of
expired Forms I-551 in other circumstances as well. For example, an
expired Form I-551 may be used for entry to the United States and for
presenting evidence of identity to an employer. 8 CFR 211.3 (entry); 8
CFR 274a.2(b)(1)(v)(B)(1)(v) (identity). Under this proposed rule, such
Forms I-551 and those without expiration dates would remain valid in
these instances.
It is important to note that the planned termination of Forms I-551
without expiration dates as proposed under this rule would not affect
the immigration status and employment authorization of the holders of
such cards; they remain LPRs and their employment is authorized
incident to status. See INA 274A(h)(3)(A), 8 U.S.C. 1324a(h)(3)(A); 8
CFR 274a.12(a).
Under the requirements proposed in this rule, an LPR who fails to
obtain a new Form I-551 by the I-551 termination date would not be in
possession of a valid Form I-551. As a result, he or she may experience
difficulties in meeting other requirements where valid documentation is
necessary. For example, the LPR with an invalid Form I-551 may
experience difficulty returning to the United States after a trip
abroad or in obtaining new employment, and would not be in possession
of valid registration documentation. See 8 CFR 211.1(a) (entry to the
United States); 8 CFR 274a.2(b)(1)(v)(A) (employment ); 8 CFR 264.1(b)
(registration).
3. Changes to the Application Process for Replacing Forms I-551
This rule also proposes amending the regulations at 8 CFR 264.5(e)
to update the application procedures for replacing Forms I-551. Current
regulations at 8 CFR 264.5(e) cover the following application
requirements: The documentation that must accompany Form I-90 upon
filing, including the Permanent Resident Card being replaced,
photographs, evidence of name change, and signature on the Data
Collection Form (Form I-89); proper filing locations; fingerprint
submissions; interviews; and waiver of the photograph, in-person
filing, and signature requirements. Form I-90 processing procedures are
also provided in the instructions to the Form I-90. Because the form
instructions are more current, some of the information in the form
instructions reflect changes to procedures that are not also reflected
in 8 CFR 264.5(e). Whereas 8 CFR 264.5(e)(1) requires the submission of
photographs and supporting documentary evidence with the application
upon filing, current form instructions provide that this biometric
information and evidence will be accepted by USCIS when the applicant

[[Page 46926]]

appears at an Application Support Center (ASC) (a USCIS facility that
captures biometrics) following submission of the application. In
addition, 8 CFR 264.5(e)(2)(i) provides that applicants must file Forms
I-90 with the local office or Service Center having jurisdiction over
their place of residence; instructions to the Form I-90 provide that
the application must be submitted to the lockbox address specified in
the instructions or filed electronically. Finally, while 8 CFR
264.5(e)(3)(i) only requires applicants who are replacing their
Permanent Resident Cards because they have reached 14 years of age to
submit to fingerprinting, the instructions to the Form I-90 require all
applicants to appear at a USCIS ASC to submit to biometrics capture.
Biometrics capture is a broader term than fingerprinting and covers
fingerprints, photographs, and signatures. 69 FR 5088, 5090 (Feb. 3,
2004) (proposing a fee increase for biometric capture services, as well
as other immigration and naturalization benefits and services).
To ensure that applicants receive clear and consistent filing
information, this rule proposes to revise 8 CFR 264.5(e) in its
entirety to remove outdated filing instructions, refer applicants to
the instructions accompanying the form, and update biometrics capture
requirements. Proposed 8 CFR 264.5(e) includes a paragraph on filing
requirements, biometrics capture, and interviews. Rather than specify
the filing requirements, this proposed rule refers applicants to the
Form I-90 instructions. Proposed 8 CFR 264.5(e)(1). The Form I-90,
including the filing instructions, is available on the USCIS Web site
at http://www.uscis.gov. USCIS has determined that filing information

is better placed in form instructions alone, which are reviewed and
updated periodically and are more accessible to the public than
regulatory provisions. By providing one source for stating the filing
requirements, USCIS will avoid confusion and potential conflict between
the requirements stated in the regulations and those stated in the form
instructions.
This rule also proposes to amend USCIS regulations to reflect the
biometrics capture requirements in the current Form I-90 instructions.
Proposed 8 CFR 264.5(e)(2). Those instructions require all applicants
to appear at an ASC for biometrics capture and pay a separate
biometrics fee with the Form I-90 filing. By contrast, the current
regulations require all applicants to provide a photograph and
signature, but only require individuals replacing their Form I-551 on
the basis that they have turned 14 years of age to be subject to
fingerprinting. See 8 CFR 264.5(e)(3)(i). This rule proposes to amend
the regulations to require all applicants to submit to all of the types
of biometrics capture, including fingerprinting. USCIS is proposing to
expand the fingerprinting requirement to all Form I-90 applicants to
enable USCIS to obtain current biometrics information needed for Form
I-551 card production, conduct appropriate background checks before
cards are issued, and store this information for biometrics comparison
and authentication purposes required by section 302(b)(2)(A) of the
BSA, 8 U.S.C. 1732(b)(2)(A).
Note, in particular, that this proposed rule would change the
current provision in current 8 CFR 264.5(e)(3)(iii) concerning the
USCIS authority to waive the submission of biometric information. In
light of the security concerns arising from the September 11, 2001,
terrorist attack on the United States, it has been USCIS policy not to
exercise this authority by actually waiving the photograph or other
requirements. See Memorandum from William R. Yates for Regional
Directors and Center Directors, Alterations to the ADIT photograph
requirements (September 4, 2003) Memorandum from Johnny N. Williams for
Regional Directors, Waiver of Photograph for I-90 Applicants Seeking
Replacement or Renewal Form I-551 (February 14, 2003). The Memoranda
are included in the public docket for this rule at
http://www.regulations.gov
, DHS Docket No. USCIS-2005-56. A Form I-551 without

a photograph of the person to whom it relates does not serve the
essential purpose of the Form I-551: To provide for a ready means of
identifying the actual person who has been lawfully admitted for
permanent residence. In the case of an alien who is physically unable
to come to a USCIS facility due to advanced age or physical infirmity,
the practice has not been actually to waive the photograph and other
biometrics requirements. Instead, the practice has been to provide an
alternative means for collecting this evidence. The most common
practice is to permit the applicant to provide passport-style
photographs, police clearance letters, and other appropriate evidence.
The rule, once final, would retain the provisions governing waivers
of the biometrics capture requirement in current 8 CFR 264.5(e)(3)(iii)
and interviews in current 8 CFR 264.5(e)(3)(ii), except that the
provisions are renumbered to new 8 CFR 264.5(e)(2) and (e)(3). In
addition, the rule simplifies the text of these provisions; no
substantive changes are proposed.
This rule also proposes technical corrections to 8 CFR 299.1 and
299.5 by adding the updated edition date (03/31/05) and title of the
Form I-90 to those sections. The Form I-90's proper title is
``Application to Replace Permanent Resident Card.'' The form was
revised to reflect this title; however, the regulations listing
immigration forms were never revised.

III. Regulatory Requirements

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBRFA), requires an agency to prepare and make available to the public
a regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). DHS has considered the impact of
this rule on small entities and has determined that this rule will not
have a significant economic impact on a substantial number of small
entities. The individual lawful permanent residents to whom this rule
applies are not small entities as that term is defined in 5 U.S.C.
601(6). There is no change expected in any process as a result of this
rule that would have a direct effect, either positive or negative, on a
small entity. Accordingly, this rule, once final, will not have a
significant economic impact on a substantial number of small entities.

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments in the aggregate of $100 million or more in any one
year. However, as discussed below under Executive Order 12866, this
action will result in the expenditure by the private sector of more
than $100 million over the period of time that the program is in place.
Only holders of Forms I-551, ``Permanent Resident Cards,'' without
expiration dates will bear the costs of this rule.

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule, once
final, will result in an effect on the economy of

[[Page 46927]]

approximately $290 million in the first year after this rule is
published, $24 million in the second year after this rule is published,
and $13 million in the third year after this rule is published. This
increase is directly associated with the expected increase in the
number of Forms I-90 and amount of accompanying filing and biometrics
fees that USCIS will receive to replace Forms I-551, `` Permanent
Resident Cards,'' without expiration dates prior to termination of such
cards.

D. Executive Order 12866

This rule has been identified as an economically significant rule
under Executive Order 12866, section 3(f)(1), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review. USCIS has assessed both the costs and
benefits of this rule, as required by Executive Order 12866, and has
made a reasoned determination that the benefits justify the costs.
USCIS estimates that 750,000 persons will apply for a replacement
Form I-551, ``Permanent Resident Card,'' in accordance with this rule.
The most likely estimated cost of this rule for these persons is $327
million over a three-year period of analysis (2007-2009). Over the
three-year period of analysis, the present value cost of this proposed
rule is approximately $267 million at 7%. A three-year period of
analysis was chosen since those aliens who are required by this
rulemaking to obtain a new Form I-551 will do so only in 2007, 2008,
and 2009. The $327 million estimate consists of $278 million in fees
associated with the Form I-90, $42 million in opportunity cost for an
applicant's time, and $7 million in transportation costs for round trip
transit to the nearest USCIS Application Support Center (ASC). The
calendar year breakdown of these costs is $290 million for Calendar
Year (CY) 2007 ($278 million in fees plus $12 million in applicant time
and transportation costs), $24 million for CY 2008 (applicant time and
transportation costs), and $13 million for CY 2009 (applicant time and
transportation costs). The cost assessment, which includes a discussion
of both the maximum and most likely estimated costs of this rule,
follows.
In an effort to improve the security of the documents that USCIS
issues for use by the public, this rule calls for a 120-day period,
beginning 30 days from the date of publication of the final rule in the
Federal Register, within which time LPRs holding Forms I-551 without
expiration dates must apply to replace their card. To apply, they must
file Form I-90 with a fee of $290 and an additional biometrics capture
fee of $80. The total current cost is $370.
Those who apply for a replacement Form I-551 under this rule must
submit biometrics that will be used for background checks and stored
for future use. Based on technology and processes being developed by
DHS, stored biometrics will be available for access by DHS for other
immigration and law enforcement uses (a security benefit to the public
at large), and these applicants might not need to return to an ASC for
purposes of triggering certain background checks such as FBI
fingerprints, should they decide to naturalize or apply for a
replacement Form I-551 in the future.
The primary benefit to the government resulting from this rule is
enhanced national security. Once the program is complete, all LPRs will
have Forms I-551 with late-model technology. The biometrics of the
rightful holder will be electronically stored in a secure DHS database
that is easily retrievable and that can be used for data matching
purposes among the DHS components. The card itself will bear a current
photograph, facilitating its use by employers and the travel industry.
USCIS considered a number of alternatives to this proposed
rulemaking. One alternative was for USCIS to maintain the current
regulations. However, such an action would result in the agency's
failure to fully meet the goals of section 303(b) of the BSA, 8 U.S.C.
1732(b). Another alternative was to expire pre-1989 cards, but lower
the fees for replacing the cards. However, under this alternative, the
agency would fail to meet its general obligation to ensure that the
fees for such services are established at rates that allow the agency
to recoup its costs, and would unfairly transfer the costs of this
program to all other applicants for benefits and services from USCIS.
See OMB Circular A-25 (available at
http://www.whitehouse.gov/omb/circulars/a025/a025.html
).

USCIS data indicates that the number of Forms I-551 without an
expiration date issued, minus the number of persons known to have held
these cards before naturalizing, is 1.9 million. Consequently, the
maximum number of aliens impacted by this rule is 1.9 million.\4\ The
direct cost to each applicant for replacement of a card under this
program is $370 in fees ($290 for the application plus $80 for the
biometrics capture fee). These costs fall exclusively upon individuals
who possess cards issued before August of 1989 and which do not have an
expiration date. Because these persons would not otherwise have to
acquire new cards, and would not otherwise have all their biometrics
captured, we believe these fees would be generated only by this new
rule. Based upon these figures, this rule will cost applicants a
maximum of $703 million in fees ($370 x 1.9 million).
---------------------------------------------------------------------------

\4\ As stated above, and as explained below, USCIS only
anticipates that 750,000 persons will apply for a replacement card.
This discussion uses the figure 1.9 million instead to reflect the
maximum number of persons that may be impacted by this rule.
---------------------------------------------------------------------------

Furthermore, each member of this group would be required to spend
two hours and 55 minutes complying with this rule. USCIS estimates that
each applicant will spend ten minutes reading the application Form I-90
instructions. Each applicant also will take ten minutes to complete the
form and thirty-five minutes to assemble and submit the form, for a
total of 55 minutes of each applicant's time.
Applicants will also be required to travel to the nearest USCIS
Application Support Center (ASC). While travel times and distances will
vary, USCIS estimates the average round-trip to an ASC will be 20
miles, and that the average time for that trip will be an hour. It will
take an average of one hour for an applicant to wait for service, and
to have his or her biometrics collected.
Total time for each applicant to comply with this requirement is
two hours and fifty-five minutes. The Bureau of Labor Statistics
reports in its 2006 national compensation survey that the average,
U.S.-employed person earned $19.29 an hour (BLS Web site). In addition,
the average wage of this large group should mimic the national average.
Consequently, USCIS believes that $19.29 an hour is a reasonable proxy
to use to value the opportunity cost of time for the applicants subject
to this rule. The total cost for applicant time spent is calculated as
$107 million (1.9 million persons x 2.916 hours x $19.29).
Additionally, there is the cost of travel. USCIS anticipates most
applicants will drive privately-owned vehicles to the ASCs. GSA's
published decision of February 1, 2007, on this subject calculates the
cost of operating a privately-owned vehicle as 48.5 cents a mile. (GSA
Web site, reporting on findings for February 1, 2007). Therefore, USCIS
calculates the transportation costs as $19 million (1.9 million persons
x 48.5 cents per mile x 20 miles).
Thus, if all holders of cards issued without expiration dates filed
a replacement application, the total

[[Page 469286 ETc.)]]

maximum cost of the program would consist of $703 million in fees, $107
million in time, and $19 million in transportation costs. The total
maximum cost of compliance to this rule by 1.9 million persons is $829
million ($703 million + $107 million + $19 million).
Notwithstanding, experience from the replacement program for an
earlier, now-invalid version of the Permanent Resident Card (Form I-
151) has shown that a portion of these applicants will apply for
naturalization rather than replace their Permanent Resident Cards and
thus significantly reduce the overall cost of this rule. Other holders
of affected cards may be deceased, may have relinquished their United
States residence, or may have previously replaced their cards for other
reasons, such as the replacement of a lost or mutilated card. In
addition, some potential applicants may choose not to spend time and
money to replace their cards, because they do not habitually travel
outside the United States. Some potential applicants, in spite of
USCIS's public relations efforts, may not learn of the requirement that
such cards be changed. Also, some cards may be in possession of persons
who obtained them fraudulently or who have committed serious criminal
offenses since obtaining their cards. USCIS theorizes that these
persons may choose not to take the perceived risk of contacting DHS and
of calling into question their right to be in the United States.
USCIS accordingly estimates the most likely outcome of this program
is that 750,000 persons issued cards without expiration dates, but not
yet recorded as naturalized, will apply for replacement cards under
this rule. USCIS calculates the cost of the primary estimate as $327
million ($829 million x 0.395 or 750,000 of 1.9 million maximum
applicants). Based on the formulas provided above, USCIS's $327 million
estimate consists of $278 million in fees associated with the Form I-
90, $42 million in opportunity costs for an applicant's time, and $7
million in transportation costs for round trip transit to the nearest
USCIS Application Support Center.

Accounting Statement

As required by OMB Circular A-4 (available at
http://www.whitehouse.gov/omb/circulars/a004/a-4.html
), in Table 1, USCIS has

prepared an accounting statement showing the classification of the
expenditures associated with this economically significant rule. The
table provides USCIS's primary or most likely estimate of the dollar
amount of these costs expressed on an annualized basis and also
includes USCIS's maximum annualized estimate at both the three percent
and seven percent discount rates. The period of analysis is three years
(2007, 2008, and 2009). Based on USCIS's primary or most likely
estimate, the undiscounted total cost of this rule will be
approximately $327 million. USCIS anticipates that the duration of the
I-551 replacement card program implemented by the final rule will be
three (3) years. Consequently, when the undiscounted total cost is
broken down into calendar years, this rulemaking is expected to cost
$290 million in 2007, $24 million in 2008, and $13 million in 2009.
Below is the expected annualized cost of this rulemaking, at both 3%
and 7%, over the three year period of analysis. Enhanced security and
the capabilities accompanying the storage of full fingerprint sets for
subsequent retrieval constitute non-quantified benefits.
OMB #: 1615-0082
Agency/Program Office: DHS/USCIS
Rule Title: Application Process for Replacing Forms I-551 without an
Expiration Date
RIN#: 1615-AB36

Classification of Expenditures, CY 2007 Through
CY 2009
[2006 Dollars]
----------------------------------------------------------------------------------------------------------------

Source citation
Category Primary estimate Minimum estimate
Maximum estimate (RIA, preamble,

etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS Enhanced Border Control, More secure
alien registration Preamble
document
----------------------------------------------------------------------------------------------------------------
Monetized benefits
Annualized quantified, but NA................. NA................
NA................ NA
un-monetized, benefits.
(Unquantified) benefits.... Enhanced Security..
COSTS
Annualized monetized costs at 3 $89.07 million per
percent. year.
Annual monetized costs at 7 $99.85 million per
percent. year.
Annualized quantified, but un- NA................. NA................
NA................ NA
monetized, costs.
Qualitative (unquantified)
costs
TRANSFERS
Annualized monetized transfers: NA................. NA................
NA................ NA
``on budget''.
From whom to whom?
Annualized monetized transfers: NA................. NA................
NA................ NA
``off-budget''.
From whom to whom?
----------------------------------------------------------------------------------------------------------------
Category Effects
Source citation

(RIA,

preamble, etc.)
----------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or NA................. NA................
NA................ NA
Tribal governments.
Effects on small businesses.... NA................. NA................
NA................ NA
Effects on wages............... NA................. NA................
NA................ NA
Effects on growth.............. NA................. NA................
NA................ NA
----------------------------------------------------------------------------------------------------------------


[[Page 46929]]

E. Executive Order 13132

This proposed 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 warrant the preparation of a
federalism summary impact statement.

F. Executive Order 12988 Civil Justice Reform

This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule includes an approved information
collection. The OMB control number for this collection is 1615-0082 and
is contained in 8 CFR 299.5. However, this rule will increase the
number of respondents and the burden hours, and public costs.
Accordingly, when this rule is finalized, USCIS will submit to OMB for
approval an 83-C Change Worksheet that reflects any change in Form I-90
filings and any related changes to the public costs associated with
this collection.

List of Subjects

8 CFR Part 1

Administrative practice and procedure, Immigration.

8 CFR Part 264

Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

PART 1--DEFINITIONS

1. The authority citation for part 1 continues to read as follows:

Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).

2. Section 1.1(aa) is added to read as follows:


Sec. 1.1 Definitions.

* * * * *
(aa) The term Form I-551 means a Permanent Resident Card, or an
Alien Registration Receipt Card, issued on a Form I-551 with an
expiration date. Unless otherwise specifically provided in this chapter
I, a Form I-551 is not valid for any use under this chapter I unless it
bears an expiration date and is unexpired.

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES

3. The authority citation for part 264 continues to read as
follows:

Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.

4. Section 264.5 is amended by:
a. Revising paragraph (c)(1); and by
b. Revising paragraph (e).
The revisions read as follows:


Sec. 264.5 Application for a replacement Permanent Resident Card.

* * * * *
(c) * * *
(1) A permanent resident must apply on Form I-90 to replace a prior
edition of the Alien Registration Receipt Card issued on Form AR-3, AR-
103, or I-151. A permanent resident must apply between October 22, 2007
and February 19, 2008 on Form I-90 to replace a prior edition of Form
I-551 without an expiration date. A permanent resident who fails to
apply during this 120-day application period still must apply to
replace a Form I-551 without an expiration date but might not be issued
a replacement Form I-551 before the termination of the validity of all
Forms I-551 without an expiration date. USCIS will announce the
termination date of the validity of Forms I-551 without an expiration
date in a Notice published in the Federal Register. Forms I-551 without
an expiration date will remain valid until such termination date.
* * * * *
(e) Application process--(1) Filing requirements. Form I-90 must be
filed in accordance with the instructions on the form.
(2) Biometrics capture. If the application is properly filed, the
applicant will receive a notice to appear in person at a USCIS facility
for biometrics capture. In the case of an applicant who is physically
incapable, because of the applicant's confinement due to advanced age
or physical infirmity, of appearing at a USCIS facility for biometrics
capture, USCIS may excuse the applicant's personal appearance at a
USCIS facility and provide an appropriate alternative means for
obtaining the applicant's photograph or other biometrics information.
(3) Interview. An applicant may be required to appear in person
before an immigration or consular officer and be interviewed under oath
in connection with this application.
* * * * *

PART 299--IMMIGRATION FORMS

5. The authority citation for part 299 continues to read as
follows:

Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.

6. Section 299.1 is amended in the table by revising the entry for
Form ``I-90'', to read as follows:


Sec. 299.1 Prescribed forms.

* * * * *

------------------------------------------------------------------------
Form No. Edition date Title and description
------------------------------------------------------------------------

* * * * * * *
I-90........................... 03/31/05 Application to Replace
Permanent Resident
Card

* * * * * * *
------------------------------------------------------------------------

Sec. 299.5 Display of control numbers.

7. Section 299.5 is amended in the table by revising the entry for
Form ``I-90'', to read as follows:
* * * * *

[[Page 46930]]



------------------------------------------------------------------------
Currently
Form No. Form title assigned OMB
control No.
------------------------------------------------------------------------

* * * * * * *
I-90.......................... Application to 1615-0082
Replace Permanent
Resident Card.

* * * * * * *
------------------------------------------------------------------------


Michael Chertoff,
Secretary.
[FR Doc. E7-16311 Filed 8-21-07; 8:45 am]

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