On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a proposed rule to increase fees for most immigration benefit requests. If implemented, employers will pay significantly more for most nonimmigrant and immigrant filings. The fee increases projects to boost revenues by over $4.5 billion providing USCIS with the much-needed resources the agency claims are necessary to “improve service levels.” The USCIS is funded mainly by these user filing fees, as opposed to appropriations, which fund other agencies like the Department of Labor (DOL). The rule is subject to a 60-day comment period closing on March 3, 2023. Details and key takeaways appear below.
What are the key takeaways for employers from the proposed rule?
- Fees for cap H-1B registration would increase dramatically from $10 to $215 per registration. Fortunately, the comment period makes it impossible for this increase to be implemented for the upcoming cap H-1B registration in March 2023.
- USCIS seeks to collect additional fees from the employer community to help fund the asylum and humanitarian relief programs. Every I-129 and I-140 petition would require a separate $600 Asylum Program Fee payment. This fee would apply to all initial petitions, changes of status, and extensions of stay that use Form I-129. This $600 fee would be in addition to the separate Form I-129 and I-140 filing fee increases. The proposed fee is currently $600 regardless of the size of an employer or the number of foreign nationals it employs.
- Premium processing service would change from 15 calendar days to 15 business days. Business days are defined as the days that the federal government is open for business, which does not include weekends or federally observed holidays. This could add a one to two week delay to case processing.
- Adjustment of Status (AOS) applications would no longer benefit from one bundled fee for the I-485, I-131 (Advance Parole), and I-765 (EAD) applications. The total fees for a bundled AOS application (including the I-485, I-131, and I-765) would increase from $1,225 to $2,820. USCIS would also eliminate the reduced AOS fee for individuals under 14 years of age. Thus, some individuals may only opt to file the I-485 without I-131 and I-765 applications.
- Individuals with a pending AOS application would need to pay the I-765 and I-131 filing fees with USCIS when renewing Advance Parole or Employment Authorization.
- Filing fees for H-1B petitions would increase from $460 to $780 (Not including the additional $600 Asylum Program Fee).
- Filing fees for L-1 petitions would increase from $460 to $1,385 (Not including the additional $600 Asylum Program Fee).
- Filing fees for E or TN petitions would increase from $460 to $1,015 (Not including the additional $600 Asylum Program Fee).
- Filing fees for I-140 immigrant visa petitions would increase more modestly from $700 to $715 (Not including the additional $600 Asylum Program Fee).
- Filing fees for online applications would be lower than paper-based applications. For instance, USCIS proposes a new filing fee of $555 for I-765 applications filed online and $650 for paper-based I-765 applications. Similarly, the proposed filing fee for online I-539 applications is $525 and the proposed fee for paper-based I-539 applications is $620. USCIS views it less expensive to process when forms are filed electronically. The proposed rule cites the increase of online filings during COVID and encourages “continued use of online filing at the same or a higher rate after the pandemic, DHS proposes a lower fee for online filing of immigration benefit requests for which both paper and online filing options are available.”
- Filing fees for EB-5 related Regional Center and investor petitions would see the most significant increases, with USCIS rationalizing the increases by referring to the mandate of the EB-5 Reform and Integrity Act of 2022 (RIA) and noting that RIA “requires DHS to . . . set fees for EB-5 program related immigration benefit requests at a level sufficient to recover the costs of providing such services, and completing the adjudications within certain time frames.” The rule also discusses the need to increase staffing levels at the Immigrant Investor Program Office and “believes that immigrant investors and regional centers are able to pay the fees.” USCIS proposes to increase I-526E investor applications from $3,675 to $11,160 and I-829 petitions from $3,835 to $9,525. Regional Center Designation I-956 applications are proposed to increase from $17,795 to $47,695 and the I-956G Annual Statement is proposed to increase from $3,035 to $4,470.
- To encourage the naturalization of Lawful Permanent Residents (e.g. green card holders) to U.S. Citizens, USCIS proposes a modest increase for the N-400 application from $640 to $760.
Where can I find the new proposed fee schedule from USCIS?
The chart showing the current and proposed fee increases is available starting at page 407 of the proposed rule. (See 88 Fed. Reg. 402, 407 (Jan. 4, 2023)). Seyfarth has prepared the below chart to show the current fees and proposed fees for the most common employment-based petitions and applications. We have also included EB-5, Immigrant Investor Program, related fees.
History and Other Insights
The last time USCIS successfully increased fees was in 2016. There was a thwarted attempt to raise fees in August 2020, with an effective date of October 2, 2020. The 2020 final fee rule was challenged however, by AILA and partners, and a preliminary injunction and stay was issued by the U.S. District Court for the Northern District of California. Another injunction was issued by the U.S. District Court for the District of Columbia also staying the effective date. One of the arguments outlined by the plaintiffs in the August 2020 complaint focused on the government’s lack of an explanation for the proposed fees. According to the complaint, there was inadequate explanation for the “dramatic change in the financial needs of the USCIS. DHS does not disclose calculations underlying its skyrocketing costs or explain why it projects a massive budget shortfall despite the agency’s recent history of running at a surplus with substantial cash reserves.”
USCIS has learned from the failed fee increase attempt in 2020. In the 2023 proposed rule, USCIS appears to have spent a great deal of time and effort creating the 210-page document, describing in detail the fee review USCIS undertook. According to the USCIS Press Release, USCIS “determined that the agency’s current fees, which have remained unchanged since 2016, fall far short of recovering the full cost of agency operations. USCIS is required to publish a fee rule biannually and proposes these changes to account for the expansion of humanitarian programs, federally mandated pay raises, additional staffing requirements, and other essential investments.”
What happens next?
USCIS will host a public engagement session on the proposed fee rule on January 11, 2023. The agency will accept comments from the public until March 6, 2023. Individuals or employers may visit review the proposed rule here and submit comments here. The Seyfarth Government Relations and Policy group is assisting various companies and organizations in preparing comments and would welcome the opportunity to speak with anyone interested in participating.
We expect that the comments will include concerns from small businesses, non-profits, and educational institutions who are not generally in a position to absorb the enormous increase and will feel a disproportionate impact. Consequently, it is possible that with enough feedback, changes to the proposed schedule could be made, but it is highly unlikely that this will occur.
Once the comment period is closed, USCIS will then take time to respond to the public comments and publish a final rule, which will contain the date of implementation. In 2016, the last time USCIS successfully increased fees, it took over seven months from the date the proposed rule was published before the new fees became effective. In short, it will take many months before the higher fees take effect, if at all. If the rule is finalized without significant changes, it is very likely that litigation will ensue. Seyfarth will offer more details and insights once more information is available.
For questions or assistance please contact the Seyfarth Immigration, Immigration Compliance and Enforcement or EB-5 Immigrant Investment groups, or the authors directly- Dawn Lurie at firstname.lastname@example.org or Steven Brouillard at email@example.com.