USCIS Finalizes Significant Filing Fee Increases and Changes to its Current Fee Structure

The issue

A new DHS fee schedule, slated to take effect on October 2, 2020, will increase costs for most petitioners and applicants, and will impose new filing fees and fee requirements for many case types, according to a final rule to be published in the Federal Register on August 3, 2020. The revised fee schedule and structure was initially revealed in a proposed regulation published in November 2019. The final rule makes few changes to the initial plan. 

Under the final rule, total filing fees for adjustment applications and ancillary benefits will nearly double, as will fees for naturalization. Employers petitioning for nonimmigrant employees would be subject to fee increases of up to 75%, depending on the nonimmigrant classification sought. With some case types, including naturalization applications and requests to replace or extend green card, a $10 discount will be offered to those that opt to file applications online instead of by mail.

In addition to fee increases, the final rule increases the premium processing timeline to almost three weeks, from 15 calendar days, imposes new fees 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 new rule comes as USCIS is seeking from Congress $1.2 billion in emergency funding to make up budget shortfalls due to a significant decrease in case filing volume. The agency – which is largely funded by filing fees – has indicated that, without additional monies from Congress, it would need to furlough more than 13,000 members of its workforce; furloughs had been planned for August 3, 2020, but have been postponed until August 31, 2020. If the furloughs are implemented, USCIS case processing is likely to be slowed significantly.

Highlights of the proposal and a chart summarizing key fee changes are below. 

Higher fees and new forms for H-1B, L-1 and other employment-based nonimmigrant filings

In a significant change to nonimmigrant petition case preparation and processing, DHS plans to separate the standard Form I-129 nonimmigrant worker petition into different forms for each visa classification, and to impose different fees for each classification. Instead of the current Form I-129 fee of $460 (which is uniformly submitted with a visa classification supplement for whatever visa type sought), an employer would file a visa-specific I-129 form with its new accompanying fee.  The change would affect all classifications sought through the Form I-129, including H-1B, H-2A/B, L-1, O, and TN.

The proposed H-1B fee increase is 21%, to $555. One of the steepest increases would be imposed on the L-1 classification, with a fee of $805 – 75% more than employers currently pay for each L-1 initial or extension of stay petition filed with USCIS. 

Additional border security fee payment for certain H-1B and L-1 employers

DHS is also changing its policy concerning when employers with a high proportion of H-1B and L-1 employees must pay a border security fee. Currently, employers with more than 50 employees, more than 50% of whom are in H-1B or L-1 status, must pay an additional $4,000 fee for each initial and change-of-employer H-1B petition and $4,500 for each such L-1 petition. Under the final rule, starting October 2, 2020, affected employers must pay this fee with each H-1B or L-1 extension of stay, in addition to initial filings and changes of employer.

New fee structure for adjustment of status applications and related benefits

Fees for applications for adjustment of status and ancillary benefits, including employment authorization and advance parole, will also dramatically increase.  

Currently, adjustment applicants pay a filing fee of $1,225. This fee covers the adjustment application itself, as well as applications for initial employment authorization documents (EADs) and advance parole (AP). It also covers future EAD and AP renewals while the adjustment case is pending.  

The new fee structure eliminates this “bundled” fee, and instead require separate fees for new and renewed EADs and APs. The cost to file an adjustment application with ancillary benefits will increase to $2,270, and applicants will be required to pay fees of $550 and $590, respectively, for each EAD and AP renewal.

Extension of Premium Processing timeline

DHS is also extending the premium processing adjudication period from 15 calendar days to 15 business days, a change that will effectively prolong adjudications by one week. The rule also suggests that DHS may seek to bypass the formal rulemaking process when announcing premium processing fee increases. 

The new rule does not increase the premium process fee; this fee was increased on December 2, 2019 to $1,440, from $1,410. 

Impact on humanitarian applicants

In an unprecedented move, DHS will now require applicants for asylum or withholding of removal to pay a $50 fee to have their requests processed, to be refunded to successful asylum applicants when they apply for permanent residence. Applicants must also pay a $30 biometrics fee and a $550 filing fee when filing an initial or extension I-765 EAD application.  Fees of this kind have never been imposed on those seeking this form of humanitarian protection. 

Though the agency had initially proposed a new $275 fee for Deferred Action for Childhood Arrival (DACA) extensions, this provision has been removed from the final rule. Nevertheless, overall fees for DACA recipients are set to increase following a USCIS announcement earlier in the week that indicated that the agency would now require DACA applicants to request work authorization every year as opposed to every two years, thus subjecting them to $410 annual fee to maintain their work authorization. 

Changes to biometric fees

The final rule eliminates the separate $85 biometric service fee for most case types, including the I-485 Application to Adjust Status, the I-539 Application to Change or Extend Status, and N-400 Application for Naturalization. Rather than requiring a separate payment for this service, the agency would instead incorporate the cost of collecting biometrics into the fee charged for the underlying benefit. 

A separate biometrics fee of $30 will be collected for two case types where the underlying benefit fee cannot be adjusted by USCIS – Temporary Protected Status (TPS) requests and Executive Office of Immigration Review (EOIR) motions, appeals and benefits requests. Similarly, as noted above, a $30 biometrics fee will be required of asylum and withholding of removal applicants when filing applications for work authorization. 

Proposed Fee Changes for Employment-Based Filings and Related Applications

Changes to common employment-based and related application types are contained in the table below:

 

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