Sep 29 2020

Federal District Court Blocks Enforcement of DHS Fee Rule

United States

At a glance

  • A federal district court has issued a nationwide preliminary injunction that prohibits the Department of Homeland Security from enforcing a regulation that was set to increase USCIS filing fees as of October 2, 2020. 
  • If implemented, the rule would have subjected employment-based petitioners and applicants to significantly higher fees and new forms for H-1B, L-1 and other nonimmigrant petition types as well as for forms associated with adjustment of status applications.
  • The rule would have also lengthened the premium processing timeline to nearly three weeks and subjected asylum applicants and other humanitarian applicants to new and increased fees.
  • DHS is expected to appeal the ruling.

The Issue

Judge Jeffrey S. White of the Federal District Court for the Northern District of California has enjoined the Department of Homeland Security (DHS) from enforcing its new fee rule, which was set to take on October 2, 2020.  Judge White’s ruling prohibits DHS from enforcing the rule while a lawsuit challenging it is litigated in court.  Judge White held that the plaintiffs are likely to succeed in their challenge to the fee rule on the grounds that Acting Homeland Security Secretary Chad Wolf was improperly appointed to his position and therefore was not authorized to issue the rule. 

The fee rule seeks to significantly increase costs for most employment-based petitioners and applicants and subject them to new forms for H-1B, L-1 and other nonimmigrant petition types as well as for applications related to the adjustment of status process. Though the new rule was set to take effect in a few days, the final versions of the required new forms had not yet been released to the public. 

The fee rule also seeks to increase the premium processing timeline to almost three weeks, from 15 calendar days, imposes new and/or additional fees on asylum and DACA applicants, and requires employers with a high proportion of H-1B and L-1 employees to make additional border security fee payments when petitioning for these employees.

The case is Immigrant Legal Resource Center, et al., v. Chad F. Wolf, et al. DHS is expected to appeal the decision. 

What this means for employers and foreign nationals

Until further notice, petitioners and applicants will not be subject to the higher fees or forms outlined in the regulation, nor will they be subject to the extended premium processing timeline. It is expected that USCIS will issue an update concerning the impact of the order on the new editions of the forms that were to become mandatory on October 2, in conjunction with the fee rule. Fragomen is monitoring this closely and will provide updates as soon as they occur. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.