USCIS Proposes Significant Changes to Immigration Benefits Fee Structure

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At a glance

• Fees for adjustment applications and ancillary benefits would nearly double, as would fees for naturalization applications.
• USCIS would create separate fees and forms for H-1B, L-1 and other nonimmigrant case types.
• USCIS would increase the premium processing timeline to almost three weeks, from 15 calendar days.
• Asylum applicants and other humanitarian applicants would be subject to new and increased fees.

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The issue

A proposed DHS fee schedule would increase costs for most petitioners and applicants, and would impose new filing and fee requirements for many case types, according to a notice of proposed rulemaking set to be published in the Federal Register on November 14. 

Filing fees for adjustment applications and ancillary benefits would nearly double, as would fees for naturalization.  Employers petitioning for nonimmigrant employees would be subject to fee increases of up to 77%, depending on the nonimmigrant classification sought.

In addition to fee increases, the proposal seeks to increase the premium processing timeline to almost three weeks, from 15 calendar days, impose new fees on asylum and DACA applicants, and require employers with a high proportion of H-1B and L-1 employees to make additional border security fee payments when petitioning for these employees.

Highlights of the proposal and a chart summarizing key fee changes are below.  USCIS will accept public comments on the proposal for 30 days after publication.

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 is proposing 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 under the proposed rule.  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 22% to $560. One of the steepest increases would be imposed on the L-1 classification, with a fee of $815 -- 77% 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 proposing to change 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 proposal, affected employers would 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

DHS is proposing significant increases in fees for applications for adjustment of status and ancillary benefits, including employment authorization and advance parole. 

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 proposal seeks to eliminate 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 $2,195, and applicants will be required to pay fees of $490 and $585, respectively, for each EAD and AP renewal.

Extension of Premium Processing timeline

DHS is using this rulemaking effort to also propose an extension of the premium processing adjudication period from 15 calendar days to 15 business days, a change that will effectively prolong adjudications by one week.  The proposal also suggests that DHS may seek to bypass the formal rulemaking process when announcing premium processing fee increases. 

The proposal to lengthen the premium processing timeline comes just weeks after DHS announced a premium processing fee increase to $1,440, from $1,410.  The increase is slated to take effect on December 2, 2019.  

Impact on humanitarian applicants

In an unprecedented move, DHS is proposing that applicants for asylum or withholding of removal pay a $50 fee to have their requests processed, as well as a $490 fee for their initial I-765 Employment Authorization Document (EAD) application.  Fees of this kind have never been imposed on those seeking this form of humanitarian protection. 

The agency is also proposing a new $275 fee for requests to renew Deferred Action for Childhood Arrivals (DACA), which DACA recipients would pay in addition to the increased $490 filing fee for Form I-765.  At this time, DHS is not proposing a filing fee for an initial DACA request given that USCIS is not currently accepting DACA applications from those who have never received this designation.  The Supreme Court is hearing oral arguments today on a challenge to the Trump Administration’s termination of the DACA program, and a decision is likely to be issued in the summer of 2020.  The decision and/or any related Congressional action could result in changes to the proposed fee structure.

Changes to biometric fees

DHS is proposing to eliminate 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 would continue to 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. The proposed rule recommends a $30 fee for these filings. 

USCIS fees and ICE operations

The proposal would allocate more than $207 million in USCIS filing fees to U.S. Immigrations and Customs Enforcement (ICE) operations, including ICE immigration benefit fraud investigations and enforcement.  This proposal is consistent with the Trump Administration’s FY 2020 budget request.

What the fee proposal means for petitioners and applicants

The revised fee schedule is a proposal only and will not take effect until it clears the federal review process and is finalized – a process that typically takes several months or more.  Because many of the government’s proposals are novel, USCIS is expected to receive a large number of public comments.

If your organization wishes to comment on the government’s proposal, please contact your designated Fragomen professional or the firm’s Government Relations and Compliance Group.

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 at Fragomen.