At the end of 2019, USCIS announced a series of changes in a notice of proposed rulemaking in the Federal Register. The announcement focused on the fee changes, citing the fact that fees make up almost 96% of the USCIS budget. However, the proposed rule also addresses a series of other changes to forms, processes, and payments. USCIS originally allowed a 30-day comment period, but the American Immigration Lawyers Association was one of 155 organizations that requested a longer review and comment period. The letter references Executive Order 12866 that calls for “not less than 60 days” for public comment in most cases. On January 24, 2020, the comment period was extended to February 10, 2020. In the letter to USCIS, the 155 organizations wrote:
“We are writing to respectfully request an extension of the comment period in view of the wide scope of this 300+ page rule and in keeping with past USCIS practices that provided the public a 60-day period to review and comment… Considering the complexity of the rule, its policy implications above and beyond fee changes, and the serious consequences of the changes proposed, the undersigned do not see a justification for deviating from the 60-day standard for comment periods, as designated in EO 12866 and EO 13563.”
Our team has reviewed the 314-page proposed rule and summarized some of the most important updates. In addition to the fees, the proposed rule also addresses the following topics:
Currently, petitioners or applicants can pay $1,410 for certain employment-based petitions to be adjudicated within 15 calendar days. That fee is increasing to $1,440 for cases filed after November 29, 2019. The new rule proposes changing the 15-day calculation from calendar days to business days, while also excluding federal holidays and regional or national office closures due to weather or other causes.
The rule also proposes that the 15-day period be paused when USCIS issues a notification of an approval, denial, RFE, or NOID. The rule would also clarify that a new 15 business day period will begin upon receipt of an RFE or NOID response.
The rule claims that a change to using business days will allow USCIS additional time to complete processing on a premium processing petition and could reduce the need for USCIS to suspend premium processing when request filing volumes are high.
USCIS has proposed to eliminate the $30 returned check fee because the fees associated with collecting the charge were higher than the returned check fees actually collected. However, petitioners and applicants should still ensure that adequate funds are available to avoid processing delays.
The rule also codifies the agency’s ability to reject a filing that includes checks more than a year old. Many institutions determine that checks over 6 months old are “stale” but USCIS recognizes that processing delays and filing schedules may cause files to have checks older than 6 months.
Another shift that has the potential to trip up applicants and petitioners is the proposal to update form instructions to only allow certain payment types for certain forms. For example, USCIS may determine that it only wants to accept credit or debit card payments for naturalization. USCIS could also decide that only a check or money order is acceptable payment for a certain form. If this rule is implemented, extra precautions must be taken to review form instructions every time a case is filed to avoid a processing delay due to an incorrect payment type.
Citizenship Fee Increases & Elimination of Fee Waivers
DHS proposes to remove the N-400 fee waiver (Form I-942) and the reduced fee option “in order to recover full cost for naturalization services.” The rule also proposes to remove the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers would reduce the cost of Forms N-600 and N-600K because the increased fee would no longer need to cover the cost of the fee-waived form adjudication.
However, the N-400 would not be afforded the same price decrease as the N-600: DHS proposes to raise the naturalization fee an astounding 83% from $640 to $1,170. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.
Fee waivers would be no longer available for the following forms:
- Form I-90, Application to Replace Permanent Resident Card;
- Form I-765, Application for Employment Authorization;
- CNMI related petitions and applications;
- Form I-485, Application to Register Permanent Residence or Adjust Status;
- Forms for applicants exempt from the public charge inadmissibility ground;
- Form I-751, Petition to Remove Conditions on Residence;
- Naturalization and citizenship-related forms.
Green Card Fee Changes
Children under the age of 14 filing for a green card with their parents were able to pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants would pay $1,120 under the new rule.
DHS also proposes to separate filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status, or after the Form I-485 has been accepted and is still pending. Current regulations allow individuals to pay the I-485 fee, but also file the I-765 and I-131 without additional fees. The rule claims that “un-bundling” these rates will reduce the cost of Form I-485. The proposed rate of $1,120 is $20 less than the current fee of $1,140.
H-1B and L-1A/B Process Updates
Employers are understandably concerned about the potential effect the proposed rule has on H-1B and L-1 employees. The rule proposes expanding the Public Law 114-113 fee of $4,000 to both H-1B and L-1 new employment as well as extensions of stay for employers that meet the 50 employee, 50% dependability test. The Public Law fee would apply regardless of whether the fraud fee applies. H-1B, L-1A, and L-1B extension requests filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions are currently exempt from the additional $4,000 fee.
DHS also proposes separating the I-129 into separate forms and eliminating the current supplements to the I-129 form. This will also allow DHS to charge separate fees for each form depending on the classification. DHS states that the current base filing fee of $460 doesn’t accurately capture the costs associated with adjudication since the fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker evaluated, whether an employee is identified, or how long it takes to adjudicate the different nonimmigrant classifications. Under the proposed rule, the H-1B filing fee (Form I-129H1) would increase to $560 while the L-1 filing fee (I-129L) would rise by 77% to $815.
The new rule proposes to incorporate biometrics fees into the underlying immigration benefit request to “simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.” The fee includes FBI name checks, FBI fingerprints, Application Support Center (ASC) contractual support, and biometric service management (including federal employees at ASC locations). The rule outlines that a separate biometric services fee will be retained for Temporary Protected Status, but requests for other immigration benefits will already have the biometric fee included.
Secure Mail Initiative
We have seen many clients suffer when the United States Postal Service (USPS) loses important immigration notifications. The proposed rule announces that USCIS will implement “Signature Confirmation Restricted Delivery (SCRD) as the sole method of delivery of secure USCIS documents. USPS states that Signature Confirmation requires that the recipient or another responsible person at the residence be present to sign for the item and then the sender will receive the signature and name of the recipient and the date, time, and location of the delivery. This service does not provide USPS tracking or provide a guaranteed delivery time.
Timeline for Rule Implementation
A notice of Proposed Rulemaking announces the agency’s plan to address a problem. After published in the Federal Register, the public can submit comments on the proposed rules so that the agency can consider the feedback when creating the final rule. The proposed rule “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” gives the public 30 days to comment. Members of the public may request additional time and the agency may extend a comment period based on the feedback. (We will keep you posted on whether the letter to USCIS by the 155 organizations has any impact on the comment period.)
Once the comment period has closed, the agency is obligated to carefully review all comments and then respond to any relevant comments. This could take an additional 30-90 days or longer. The agency may also issue a new proposed rule if issues arise in the comments or if the agency decides to change substantial portions of the rule. Once a final rule is published, the effective date is typically 30 to 90 days later. On average, from a proposed rule to its effective date, the time period is averaging approximately one year.
Lately, DHS has been unable to implement some rules (even after finalized) due to the ongoing lawsuits. If DHS attempts to implement this particular rule quickly (which significantly changes fees and forms) we predict there would be significant backlash from the legal community and the rule could see additional challenges in court.
Do you have questions on the proposed rule? Send us a note at firstname.lastname@example.org.