United States: DHS Proposes Fee Rule with Significant Increases for Employment-Based Petitioners

USCIS last adjusted its fee schedule on December 23, 2016, with a weighted average fee increase of 21%. Under the Trump administration in 2020, the agency issued a fee rule containing significant changes to the USCIS fee structure, which was enjoined by federal court and never implemented. This new USCIS fee proposal is intended to replace the 2020 fee rule in its entirety, but several aspects of the prior rule have been retained in the new proposal.

USCIS is proposing to impose different fees for each visa classification sought on the Form I-129 nonimmigrant worker petition, replacing the uniform $460 Form I-129 filing fee across all classifications. The proposed H-1B fee increase is $780, from $460, a 70% increase. The proposed L-1 petition fee is $1,385, from $460 – a 201% increase. E and TN petitions would see a $121% increase to $1,015, from $460. The Form I-129 fee change would affect all classifications sought through the form, including H-1B, H-2A/B, E, L-1, O, P, and TN (proposed fee levels shown in chart below).

USCIS also proposes to significantly increase the H-1B cap registration fee for cap-subject H-1B petitions – the fee would increase to $215 per registration, from $10 under the current fee schedule, a 2050% increase. The agency states that the increase is the result of a review of the cost of administering the H-1B registration system.

In a significant revision to the fee schedule, USCIS is proposing the addition of a new $600 “Asylum Program Fee” to be paid by all petitioners filing Form I-129 nonimmigrant petitions and Form I-140 immigrant visa petitions. According to USCIS, this additional fee is being proposed to mitigate the scope of proposed fee increases for individual applicants and petitioners. The fee is intended to be used to fund part of the costs of administering the asylum program.

Employers filing a Form I-140 immigrant visa petition will see only a 2% increase in the base filing fee under the new rule – to $715, up from $700 under the current fee schedule. However, the new Asylum Program Fee would further increase the overall cost of all Forms I-140 to these employers.

As it did in a now-vacated 2020 fee rule, USCIS is again seeking to extend the premium processing adjudication period from 15 calendar days to 15 business days, a change that will effectively prolong premium processing adjudications by one week. There is no accompanying proposal to increase the Form I-907 premium processing fee at this time.

The rule would also permit petitioners to combine the premium processing filing fee with other filing fees submitted in the petition, except in instances where USCIS specifically precludes combining the payments.

Also as proposed in the 2020 fee rule, DHS is again proposing to require separate fees for Form I-485 adjustment of status applications and its ancillary benefits of employment authorization (Form I-765) and advance parole (I-131) when the applications are filed concurrently, eliminating the current “bundling” under one fee. The agency intends to implement this change in phases, however, and those who filed their applications prior to the change would be unaffected. Those subject to the new fee schedule will pay separate fees for their initial applications and then will also pay filing fees for each subsequent employment authorization and advance parole application until their adjustment of status application is adjudicated. Fee increases to all three forms are shown in the chart below. Notably, the proposal establishes only one Form I-485 filing fee, regardless of the applicant’s age, including for children under age 14 filing a Form I-485 concurrently with a parent.

Filing fees for certain EB-5 immigrant petitions would also see significant increases under the new rule. The Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be raised to $11,160, from $3,675 – a 204% increase. The Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee would be raised to $9,525, from $3,835 for most – a 148% increase for those that require biometrics.

Under the new rule, DHS is proposing to incorporate biometrics fees into the main immigration benefit fees for nearly all case types where such a fee is required. USCIS would, however, retain a separate biometrics fee for Temporary Protected Status (TPS) applications (Forms I-821), set at $30.

In addition, DHS is proposing lower fees for applicants who choose to file online. Online filing is available for applicants who are directly filing a limited number of forms, including Forms I-90 (Application to Replace Permanent Resident Card), I-130 (Petition for Alien Relative), I-539 (Application to Extend/Change Nonimmigrant Status), and I-765 (Application for Employment Authorization), among others.

The revised fee schedule is a proposal only and will not take effect until it clears the federal review process – a process that typically takes several months or more.

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.

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

*The percentage reflects the change from the current base filing fee, exclusive of separate biometrics fee.
**For adult applicant, exclusive of separate biometric fee.