SUPPLEMENTARY INFORMATION: ( printed page 34769)

Background

This TFR temporarily amends the Schedule of Fees for Consular Services (Schedule), 22 CFR 22.1, to create a $750 fee for a new service that will enable B1/B2 business and tourism NIV applicants to obtain an expedited interview appointment, within ten business days after paying an NIV expedited appointment fee in accordance with applicable instructions, subject to availability of expedited appointments at the location selected. This service will be offered at limited overseas posts, as published on travel.state.gov, for the duration of the TFR. The service will only be available to B1/B2 NIV applicants. It is being offered as a proof-of-concept designed to assess demand from applicants for visas who seek to bypass longer wait times for visa interviews.

The Department generally sets and collects fees for consular services based on the concept of full cost recovery to the U.S. government. The Department's Cost of Service Model (CoSM) uses an activity-based costing (ABC) methodology to calculate annually the direct and indirect costs to the U.S. government associated with each consular good and service the Department provides. Consular fees are based on these cost estimates, and the Department aims to update the Schedule of Fees biennially unless a significant change in costs warrants an immediate recommendation to amend the Schedule. After a review, the Department determined that demand for expedited NIV appointments warrants piloting a new expedited NIV appointment program. Applying the CoSM's standard ABC methodology, the Department estimates that the cost of providing this service will be $750 per applicant and is therefore implementing a $750 fee via this TFR for the duration of the pilot. Once the pilot is complete, the Department will analyze the data from the pilot and determine whether to continue offering this service in some form and adjust the fee as needed based on the results of the CoSM.

What is the authority for this action?

Several statutes address specific fees relating to NIVs. For instance, Sec. 140 of Public Law 103-236, as amended, reproduced at 8 U.S.C. 1351 (note), establishes a retained, cost-based application processing fee for nonimmigrant machine-readable visas (MRV) and border crossing cards (BCC). See also8 U.S.C. 1713. Additionally, Sec. 501 of Public Law 110-293, reproduced at 8 U.S.C. 1351 (note), requires the Secretary of State to collect an additional $2 surcharge (the “HIV/AIDS/TB/Malaria surcharge”) on all MRVs and BCCs as part of the application processing fee; this surcharge must be deposited into the Treasury and goes to support programs to combat HIV/AIDS, tuberculosis, and malaria. Furthermore, 8 U.S.C. 1351 establishes a reciprocal NIV issuance fee, requiring that the fee charged an applicant from a foreign country for issuance of an NIV be based, insofar as practicable, on the amount of visa or other similar fees charged to U.S. nationals by that foreign country.

The Department's NIV fee authorities do not speak directly to a fee for expedited NIV appointments; however, the Department derives the general authority to charge cost-based fees for consular services it provides from the general user charges statute, 31 U.S.C. 9701. See, e.g.,31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the government.”). The President also has the power to set the amount of fees to be charged for consular services provided at U.S. embassies and consulates abroad pursuant to 22 U.S.C. 4219 and has delegated this authority to the Secretary of State, E.O. 10718 (June 27, 1957). A majority of the fees listed in the Schedule of Fees are established based on these authorities, including the fee established via this TFR. In the absence of a specific statutory fee retention authority, fees collected for consular services must be deposited into the general fund of the Treasury pursuant to 31 U.S.C. 3302(b).

Activity-Based Costing Generally

OMB Circular A-25 states that it is the objective of the U.S. government to “(a) ensure that each service, sale, or use of Government goods or resources provided by an agency to specific recipients be self-sustaining; [and] (b) promote efficient allocation of the Nation's resources by establishing charges for special benefits provided to the recipient that are at least as great as costs to the Government of providing the special benefits . . . .” OMB Circular A-25, 5(a)-(b); see also31 U.S.C. 9701(b)(2)(A) (agency “may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the Government . . . .” and the “value of the applicant” of that service). To set prices that are “self-sustaining,” the Department must determine the full cost of providing consular services. Following guidance provided in Statement 4 of OMB's Statement of Federal Financial Accounting Standards (SFFAS), available at http://www.fasab.gov/​pdffiles/​sffas-4.pdf, the Department developed and uses an ABC model to determine the full cost of the services listed in its Schedule of Fees, both those whose fee the Department changes, as well as those whose fee will remain unchanged from prior years.

The Government Accountability Office (GAO) defines activity-based costing as a “set of accounting methods used to identify and describe costs and required resources for activities within processes.” Because an organization can use the same staff and resources (computer equipment, production facilities, etc.) to produce multiple products or services, ABC models seek to precisely identify and assign costs to processes and activities and then to individual products and services through the identification of key cost drivers referred to as “resource drivers” and “activity drivers.”

Example: Imagine a government agency that has a single facility it uses to prepare and issue a single product—a driver's license. In this simple scenario, every cost associated with that facility (the salaries of employees, the electricity to power the computer terminals, the cost of a blank driver's license, etc.) can be attributed directly to the cost of producing that single item. If that agency wants to ensure that it is charging a “self-sustaining” price for driver's licenses, it only has to divide its total costs for a given time period by an estimate of the number of driver's licenses to be produced during that same time period.

However, if that agency issues multiple products (driver's licenses, non-driver ID cards, etc.), has employees that work on other activities besides licenses (for example, accepting payment for traffic tickets), and operates out of multiple facilities it shares with other agencies, it becomes more complex for the agency to determine exactly how much it costs to produce any single product. In those instances, the agency would need to know what percent of time its employees spend on each service and how much of its overhead (rent, utilities, facilities maintenance, etc.) can be allocated to the delivery of each service to determine the cost of producing each of its various products—the driver's license, the non-driver ID card, etc. Using an ABC model allows the agency to develop those costs. ( printed page 34770)

Why is the Department creating this new NIV service at this time?

Consistent with OMB Circular A-25 guidelines, the Department regularly reviews its fees for consular services to ensure that fees are properly “assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public.” OMB Circular A-25, section 6.

Normally, there are three avenues for an NIV applicant to request and receive an expedited interview at no cost in exceptional circumstances. In each of these cases, the applicant still must demonstrate that he or she qualifies for the visa classification requested. All require personal intervention by consular and mission staff under strict criteria. These are:

• The “Referral” process whereby a senior U.S. government employee of the U.S. diplomatic mission in country vouches for the applicant and attests that his or her travel benefits U.S. interests. Of these three methods, this is the only avenue for an authorized U.S. government official to advocate for visa issuance.
• The “Priority Appointment Request” whereby an authorized U.S. government employee of the U.S. diplomatic mission may request the consular section provide an earlier appointment to a contact who furthers U.S. national interest.
• Applicant-Requested Expedite Request: Applicants in extreme circumstances may request an expedited appointment to enable travel for humanitarian reasons or other post-specific criteria for urgent travel. Consular managers at post review each of these requests.

These resource-intensive methods for expediting an appointment negatively affect the Department's capacity to process all visa applications. The new service to be implemented on a limited basis via this TFR will create a fee-based mechanism for applicants to obtain an expedited interview appointment that will reduce the strain on consular resources by bypassing both the requirement for the applicant to justify his or her need for an expedited interview appointment and the requirement that consular staff review each expedited request.

Additionally, while the median global wait time for an NIV appointment is approximately 30 days, at certain posts wait times exceed 12 months, making it difficult for some applicants to apply for visas for urgent or last-minute travel In any given year, the United States hosts special events that draw significant last-minute visitors, including professional sporting events, major concerts, festivals, etc. In the wake of the 2026 FIFA World Cup and ahead of the 2028 Olympic and Paralympic Games in Los Angeles, the Department has determined that now is the time to test the demand for and provision of a new fee-based expedited interview appointment service.

During the pilot program implemented through this TFR, applicants at identified posts will have a chance to move to the front of the appointment line by paying a $750 fee without providing a written justification or seeking personal intervention through the Priority Appointment Request or Referrals processes. Recipients of this service will also receive enhanced passback options for return of the passport, if available. Applicants who opt to pay for an expedited appointment will still be subject to all standard visa eligibility and processing requirements, including any administrative processing deemed necessary. An expedited visa appointment in no way guarantees visa issuance. This service will not expedite any processing steps, including any time needed for administrative processing. Because expedited appointments will be capped at a percent of selected posts' overall interviewing capacity, this service will not meaningfully affect wait times for NIV appointments for all other applicants. Consular managers at both pilot posts and non-pilot posts will maintain the ability to expedite interviews without a fee for specific humanitarian reasons or for urgent travel when in the U.S. national interest, for example, someone needing serious and urgent medical treatment best provided in the United States. At the conclusion of this pilot, the Department will analyze the data to determine next steps.

How was the cost calculated?

As discussed above, the Department generally sets and collects fees for consular services based on the concept of full cost recovery to the U.S. government. The Department's Cost of Service Model uses an ABC methodology to calculate annually the direct and indirect costs to the U.S. government associated with each consular good and service the Department provides. Costs are generated by an ABC model that accounts for all costs to the U.S. government of providing a particular service. Unlike a typical accounting system, which accounts for only traditional general-ledger-type costs such as salaries, supplies, travel and other business expenses, ABC models measure the costs of activities, or processes, and then provide an additional view of costs of an organization's products and services through the identification of the key cost drivers of the activities.

The costs of managing the existing expedite processes are currently incorporated into the Machine Readable Visa (MRV) fee. The cost estimate for this new fee is predicated on a projected capacity of approximately 25,000 expedite requests, which is based on an assessment of demand at the consular sections overseas with the longest wait times and a preliminary expectation that expedited appointments at those posts would be capped at a percent of interview capacity for a period of six months, noting that the Department may adjust that cap based on demand for and capacity to adjudicate these applications. Since one goal for this temporary program is to ascertain demand for the service, the Department will provide the expedited appointment service through December 31, 2026, whether or not demand meets or exceeds this estimate during the pilot period.

Costs for this service include those associated with managing no-fee expedited appointments generally, as the activities for both are similar, and consular work to differentiate urgent humanitarian cases where the fee is waived and regular fee-based applicants is likely to increase. The Department expects the demand for, and potential for fraud and malfeasance in, urgent humanitarian expedite cases will concurrently (and temporarily) increase under this program, even if most requests for no-fee expedites will be denied.

The bulk of the costs incorporated in the fee relate to:

• Appointment management: Providing this new service will require additional work by consular managers and staff at all posts to manage the appointment queues and communications related to the pilot program. Establishing and maintaining a low-fraud expedite queue will require additional vigilance on behalf of consular managers at all posts to ensure that not all expedite appointments are available at the same time every day.
• Strategic Adjustments: Consular managers worldwide will have to adjust staffing to account for changes in demand, and internal embassy coordination. Resources also will be consumed implementing policy changes related to this service, particularly with regard to the expected burden on the no- ( printed page 34771) fee expedite request processes outlined above, both at posts included in the pilot and those that are not included.
• Special Event Adjustments: Consular staff always need to plan for special event preparedness, policy adjustments for these special events, and related activities. These events drive demand surges of varying size at multiple posts simultaneously. At any given time, the United States hosts multiple international events, including sporting events, concerts, conferences. Sometimes, as in the case of the 2026 FIFA World Cup and the 2028 Olympic and Paralympic Games, the surge is global. While other events tend not to draw as many international visitors as the World Cup or Olympic Games, consular staff still spend significant time planning and adjusting for these events. Notably, this temporary program does not increase adjudicatory capacity; it merely provides an additional route to obtaining an appointment.
• Other Costs: In addition to the major costs listed above, the estimate includes costs related to managing appointments, resource requirements for expediting appointments and making this option available, collecting fees and overseeing such collection, expediting the return of approved visas where applicable, developing and managing the pilot, and ongoing fraud prevention measures to detect and prevent illicit abuse of the above no-fee expedite option.

The Bureau of Consular Affairs will control which embassies and consulates can offer this service. The MRV fee was last updated in May 2023 and is currently set at $185 for B1/B2 applicants. Individuals seeking an expedited appointment who pay the $750 fee will continue to pay the MRV fee, which is not anticipated to change for the duration of this TFR.

Designated consular sections will make limited amounts of expedite appointments available based on embassy and consulates' capacity. The appointment selection process occurs after the applicant has submitted a completed DS-160 visa application through the Consular Electronic Application Center (CEAC) and paid his or her MRV fee. An applicant for B1/B2 visas at posts where the paid expedite service is offered will first schedule a traditional (non-expedited) appointment. If the applicant then wishes to schedule an earlier (expedited) appointment, he or she will so indicate, at which point, he or she will see the available expedited appointments within the next ten business days. Should the applicant choose one of these appointments, a 5-10-minute hold will be placed on the appointment while he or she pays the $750 expedite fee. If the applicant fails to pay the fee within this time, he or she will lose the hold, and the expedited appointment will be reopened to other applicants. As consular sections will only make a limited number of expedited appointments available, there is no guarantee that expedited appointments will be available to all interested applicants. Applicants will only see expedited appointments available for booking if such appointments are available. Upon selection of an expedited appointment, applicants will be required to pay the expedite fee online prior to confirmation of the appointment. Failure to pay the expedite fee at that time will result in the applicant not being scheduled for the expedited appointment, reverting instead to the original, non-expedited appointment. An applicant who selects an expedited appointment and either does not attend his or her appointment or cancels his or her appointment forfeits the expedited appointment fee.

Applications with expedited appointments are subject to standard processing, including interview by a consular officer, and all vetting requirements. Payment of the expedite fee does not entitle the applicant to any other expedited processing beyond scheduling of the visa interview appointment and return of the applicant's passport with the visa, if approved, as available.

Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as a temporary final rule, with a 60-day provision for post-promulgation comments and with an effective date less than 30 days from the date of publication.

Consistent with his statutory authority,^[1] the Secretary of State has determined that all policy related to visa operations and issuance, among other matters, constitutes a foreign affairs function of the United States under the Administrative Procedure Act (5 U.S.C. 553).^[2]

The Department asserts the foreign affairs exemption to the Administrative Procedure Act (APA) (5 U.S.C. 553(a)(1)). This is consistent with the Attorney General's opinion ^[3] that was issued concurrent with the passage of the APA that

It is equally clear that the exemption is not limited to strictly diplomatic functions, because the phrase “diplomatic function” was employed in the January 6, 19·15 draft of S. 7 (Senate Comparative Print of .June 19,15, p. 6; Sen. Doc. p. 157) and was discarded in favor of the broader and more generic phrase “foreign affairs function”. In the light of this legislative history, it would seem clear that the exception must be construed as applicable to most functions of the State Department and to the foreign affairs functions of any other agency.

(emphasis added)

The subject matter of this final rule involves the collection of visa fees and the provision of a nonimmigrant visa service. The administration of this program is a foreign affairs function of the United States.

Visas are issued by the Department of State to foreign citizens in foreign countries. Accordingly, this rule is properly viewed as one that “clearly and directly involve[s] activities or actions characteristic to the conduct of international relations.” Capital Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 2020); E.B. v. U.S. Dep't of State, 583 F. Supp. 3d 58, 64 (D.D.C. 2022). The D.C. Circuit likely would apply this test as well, as that court has adopted a direct-involvement test for the analogous benefits exception contained in the same subsection of the APA. Crafting visa policy for the United States is inherently a foreign affairs function under any test.

This temporary final rule is designed to collect information from select countries about the demand for a fee-based process to expedite a nonimmigrant visa interview appointment and will inform the Department's future decision-making about establishing a permanent process. The Department is creating this rule now because of extended wait times at certain posts. The pilot program will be run in advance of the 2028 Olympic and Paralympic games. Demand for fee-based expedited interviews during the pilot program will provide critical and timely statistical data to inform foreign policy decisions related to facilitating secure, legitimate, and timely travel to the United States.

Regulatory Flexibility Act

Since this rule is not subject to notice and comment procedures, it is exempt from the provisions of the Regulatory Flexibility Act. 5 U.S.C. 601 et seq.

Unfunded Mandates Act of 1995

This rule will not result in the expenditure by state, local, and tribal ( printed page 34772) governments, in the aggregate, or by the private sector, of $100 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

Congressional Review Act

This rule is not a major rule as defined by the Congressional Review Act. See5 U.S.C. 804(2).

Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders. OMB has determined that this rule is significant under Executive Order 12866.

Current mechanisms for expediting B1/B2 visa appointments, such as humanitarian requests or government referrals, are resource-intensive, require case-by-case review, and are not designed to handle high volumes of time-sensitive travel. The Department considered several alternatives, including maintaining the status quo, offering expedited appointments without a fee, and implementing a variable fee structure. Each of these options either failed to address broader demand, risked overwhelming resources, or introduced unnecessary administrative complexity.

This rule establishes a separate expedite fee for nonimmigrant visa applicants who do not qualify for humanitarian or urgent need but seek faster processing. While introducing this fee may allow some applicants to secure earlier appointments, it will not change the total number of applicants or the overall capacity of the visa process.

The fee-based service offers several benefits: it improves operational efficiency by reducing the burden on consular staff, provides a transparent and predictable process for applicants, and supports U.S. interests during major international events. Although the $750 fee is significant, it reflects the full cost of providing the service and complies with statutory requirements. The pilot is designed to minimize impacts on regular appointment wait times by capping expedite appointment availability and preserves humanitarian expedite options for urgent cases.

The Department is establishing this fee in accordance with 31 U.S.C. 9701, 22 U.SC. 4219, and OMB Circular A-25, as described in more detail above. See, e.g.,31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the Government.”).

Details of the fee changes are as follows:

Executive Orders 12372 and 13132

This regulation 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 require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on federal programs and activities do not apply to this regulation.

Executive Order 13175

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

Paperwork Reduction Act

This rule does not create or revise any reporting or record-keeping requirements subject to the Paperwork Reduction Act 44 U.S.C. Chapter 35.

Executive Order 14192—Unleashing Prosperity Through Deregulation

This rule is not an Executive Order 14192 regulatory action because it is being issued with respect to an immigration-related function of the United States. The rule's primary direct purpose is to implement or interpret the immigration laws of the United States (as described in INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed by the U.S. government with respect to aliens.

Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is amended as follows:

91 FR 34768