USCIS Fee Rule Postponed by Court Order

Injunction Leaves USCIS Claiming Underfunding by “Millions Each Business Day”

USCIS fees were scheduled to increase on October 2, 2020 for many immigration and naturalization benefit requests with the agency citing rising costs for processing the requests. USCIS had also been planning to furlough two-thirds of the workforce in August and pointed to declining revenues due to COVID-related closures and lower filing volumes. Although the furloughs were canceled, some categories are already suffering from delays and the earlier shutdown of a printing facility led to backlogs for green cards and EADs. Lawmakers also discovered that many Kansas City contractors were furloughed despite the formal announcement stating there would be no employment reductions.

The fee rule was to allow the agency to remain in operation without additional furloughs or reductions in service. On September 29, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction enjoining the fee increases for citizenship and other immigration benefits. U.S. Citizenship and Immigration Services Deputy Director of Policy Joseph Edlow issued the following statement:

“This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined. Unlike most government agencies, USCIS is fee funded. As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. This is nothing new or abnormal. In fact, the fee rule is two years behind schedule, and is a smaller percentage increase than the previous. In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery. This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people.”

What to Expect After October 2, 2020

While the rule is temporarily enjoined, it could become effective with little or no notice if the injunction is lifted. There is likely to be a grace period for new forms and fees before USCIS will begin rejecting cases for the wrong payment amount or form version. Although most fees are increasing, a $10 discount is offered for online submission where available. Current fee information can be found on the USCIS website.

Employment Visa Updates

Employers are understandably concerned about the potential effect the rule has on H-1B, L-1, and other immigrant employees. For employers with more than 50 employees and more than 50% of those employees in H-1B or L-1 status, a $4,000 fee applies. The rule expands 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 will apply regardless of whether the fraud fee applies. Extension requests for H-1B, L-1A, and L-1B visas filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions were previously exempt from the additional fee.

DHS will now separate the I-129 into forms based on case type and eliminate the current supplements to the I-129 form. This also allows 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.

The rule updates the filing fees as follows:

Case Type Current Fee Final Fee Change Percent Change
E-1

E-2

TN

$460 $695 $235 51 percent
H-1B $460 $555 $95 21 percent
H-2A
(named beneficiaries)
$460 $850 $390 85 percent
H-2B
(named beneficiaries)
$460 $715 $255 55 percent
L-1A

L-1B

$460 $805 $345 75 percent
O-1 $460 $705 $245 53 percent
H-2A
(unnamed beneficiaries)
$460 $415 -$45 -10 percent
H-2B
(unnamed beneficiaries)
$460 $385 -$75 -16 percent


Green Card Fee Changes

Children under the age of 14 filing for a green card with their parents can currently pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants will pay $1,130 under the new rule.

DHS also chose to separate the filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when either filed concurrently with Form I-485 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 if filed concurrently.

The rule claims: “Debundling allows individuals to pay for only the services actually requested. Thus, many individuals may not pay the full combined price for Forms I-485, I-131, and I-765.” The newly established fees are as follows:

  • Form I-131, Application for Travel Document: $590
  • Form I-765, Application for Employment Authorization: $550
  • Form I-485, Application to Register Permanent Residence or adjust Status: $1,130

Individuals applying for work and travel documents along with their permanent residence application will now pay a total of $2,270.

Citizenship Fees

DHS will 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 removes the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers will 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 raised the naturalization fee an astounding 83% from $640 to $1,170 for the paper-based filing. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.

Premium Processing

Currently, petitioners or applicants can pay $1,440 for certain employment-based petitions to be adjudicated within 15 calendar days. The new rule will change 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 states 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. If an investigation is opened for fraud or misrepresentation, USCIS can retain the fee and not reach a conclusion to the request within 15 days.

The agency claims that the shift to calculating by 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.

Biometrics Fees

The new rule incorporates 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 in the amount of $30, but requests for other immigration benefits will include the biometric fee.

Timeline for Rule Implementation

This final rule is effective Oct. 2, 2020. Since there is a temporary injunction, the court order prevents the fee change at this time. If the injunction is lifted, any application, petition, or request postmarked on or after the new effective date must include payment of the new, correct fees established by this final rule and the updated forms.

Don’t wait until the last minute to file for new visas or extensions! Contact us to get started before the delays affect your immigration status.

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Are you ready to start your case prior to the fee and process shifts? Contact us at info@challalaw.com or 804-360-8482 to get started today.