On August 3, 2020, the Department of Homeland Security (DHS) issued a final rule that makes sweeping changes to the U.S. Citizenship and Immigration Services (USCIS) fee schedule. It also removes certain fee exceptions, alters premium processing time limits, and mandates the use of new forms, among other changes. The rule is scheduled to take effect on October 2, 2020.
Some of the important takeaways from the new rule include:
- Fees for most petitioners and applicants will increase by a weighted average of 20 percent,
- Fees and forms for nonimmigrant petitions will be based on the visa classification requested (e.g. H-1B, L-1, E, TN, etc.), whereas previously all petitions for foreign workers carried the same base filing fee,
- The premium processing timeline extends to 15 business days from 15 calendar days, essentially adding on an additional week of processing time,
- The fee structure for adjustment of status filings, which was previously bundled to include the application for advance parole and work authorization, will now require the payment of a fee for each benefit application submitted as part of the adjustment of status process, thereby increasing the cost of applying for adjustment of status,
- Fee waivers will be eliminated for most applications, and
- A fee will now be required for applications for asylum, which is the first time a fee will have ever been imposed on this type of humanitarian application in the U.S.
Background
USCIS is primarily self-funded. Nearly 97% of the USCIS operational budget is derived from the collection of fees from those seeking immigration benefits. After conducting its biennial fee review last year, USCIS determined that fee adjustments would be necessary to cover its operational budget, which includes the cost of adjudicating immigration benefits, detecting and deterring immigration fraud, and thoroughly vetting applicants, petitioners, and beneficiaries, as well as covering payroll and implementing technology enhancements. USCIS estimated that, if changes were not made, its current fees would result in a budgetary shortfall of approximately $1 billion per year. On August 25, 2020, USCIS announced that the agency would cancel a furlough scheduled to begin on August 30 of more than 13,000 employees due to unprecedented spending cuts and a steady increase of revenues. The agency noted, however, that to avoid future furloughs in fiscal year 2021 starting in October of 2020, congressional intervention is critical and that in the interim, processing backlogs for cases would increase.
Overview of Key Changes
The following represent some of the key changes included in the final rule.
- Overall Fee Increase
Petitioners and applicants should expect fee increases across the board. One of the biggest hikes, an 83 percent increase, will apply to naturalization applications. With regard to nonimmigrant petitions, notably the base filing fee for an L-1 intracompany transfer petitions will increase by 75 percent and the base filing fee for H-1B petitions will increase by 21 percent. E and TN petition fees will increase by 51 percent and petitions for O-1 classification will increase by 53 percent. While most fees will increase, the fees associated with some forms will nominally decrease, especially for petitions filed electronically. In addition, the biometric service fee, which is currently an add-on for some applications (such as the I-539 application to change or extend status), will be eliminated for most case types.
As to immigrant visa processing, there are also changes. For adjustment of status applications, the reduced filing fee for children will be eliminated, and all adjustment of status applicants will be required to pay the same fee across the board. The new rule will also require a separate fee for the I-765 (work authorization) and I-131 (advance parole) applications typically submitted in connection with applications for adjustment of status. These fees are currently bundled into the fee for the I-485 application for adjustment of status. When the I-765 and I-131 fees are considered, the total cost of applying for adjustment of status will more than double. Please refer to the table below for some of the commonly-used forms and new fees.
- Premium Processing
Petitioners filing certain types of petitions may request premium processing in exchange for a fee. Premium processing guarantees a response, which can be in the form of a request for additional evidence or a decision, within 15 days. Currently, the 15-day period is calculated based on a 15 calendar day period, but the new rule will change the adjudication period to 15 business days. The change from calendar day to business day will effectively prolong the processing period by one week. The premium processing fee itself is not affected by the final rule, but a fee can automatically increase annually without notice and comment rulemaking, if the fee increase will only be in accordance with the increase in the Consumer Price Index. Most recently, for example, in December 2019, the fee was increased from $1,410 to $1,440 for the Form I-907 Request for Premium Processing Service.
- Form Changes
The final rule contains a table of form changes that lists revised forms that applicants must use after the rule’s effective date (October 2, 2020). The new forms include Form I-129 (petition for alien worker), Forms I-600/600A (orphan petition), Form I-765 (application for work authorization), and Form I-912 (request for fee waiver). As of September 2, 2020, the new forms were made available. USCIS will provide a grace period of up to 60 days in which it will accept both the previous and the new versions of certain forms as long as payment of the new, correct fees accompany the forms.
- Asylum
USCIS will now charge a $50 filing fee for Form I-589 (application for asylum or withholding of removal). This move is unprecedented; there has never been a fee required to apply for asylum. The United States joins three other countries (i.e., Iran, Fiji, and Australia) as the only signatories to the Geneva Convention that impose fees on asylum applications.
Litigation
The final rule is already the subject of litigation. On August 21, 2020, the American Immigration Lawyers Association (AILA) filed suit on behalf of a coalition of the nation’s leading immigrants’ rights organizations against the DHS. AILA stated, “USCIS’ dramatic fee increases will ultimately devastate vulnerable populations and our organizational plaintiffs who serve them. The planned hikes and unprecedented fee to apply for asylum, including an 83% increase for naturalization applications, place an unlawful barrier on the way of individuals eligible for immigration benefits. These wealth tests belong in the dustbin of history.”
So while employers and applicants should prepare for the fee increases, plan for increased processing times, and be ready to use the new forms; pending litigation may alter the timeline.
Fee Adjustments (Excerpt of Select Forms)
| Form | Current Fee ($) | New Fee ($) | Change ($) | Percentage Change (%) | |
| I-129, Petition for Nonimmigrant Worker
|
|||||
| I-129E&TN | 460 | 695 | 235 | 51 | |
| I-129H1 | 460 | 555 | 95 | 21 | |
| I-129L | 460 | 805 | 345 | 75 | |
| I-129O | 460 | 705 | 245 | 53 | |
| I-130, Petition for Alien Relative (Online Filing) | 535 | 550 | 15 | 3 | |
| I-130, Petition for Alien Relative (Online Filing) | 535 | 560 | 25 | 5 | |
| I-131, Application for Travel Document | 575 | 590 | 15 | 3 | |
| I-140, Immigrant Petition for Alien Worker | 700 | 555 | -145 | -21 | |
| I-485, Application for Adjustment of Status | 1,140 | 1,130 | -10 | -1 | |
| I-539, Application to Extend/Change Nonimmigrant Status (online filing) | 370 | 390 | 20 | 5 | |
| I-539, Application to Extend/Change Nonimmigrant Status (paper filing) | 370 | 400 | 30 | 8 | |
| I-765, Application for Employment Authorization (non-DACA) | 410 | 550 | 140 | 34 | |
About the Author:
Heather Frayre is Of Counsel in Dickinson Wright’s El Paso office where she assists clients in navigating immigration matters tied to the recruitment, hire, transfer, and retention of foreign workers. She counsels corporate and individual clients on a full range of immigration matters including non-immigrant visas, permanent residency, and citizenship as well as issues tied to worksite compliance. She can be reached at 915-541-9370 or hfrayre@dickinsonwright.com.
