Employers would pay significantly higher fees to petition for workers and sponsor them for permanent residence under a proposed U.S. Citizenship and Immigration Services (USCIS) fee rule. The rule is subject to a 60-day comment period, after which the Department of Homeland Security (DHS) can publish a final rule. The proposed regulation includes a new fee on businesses and universities to fund the U.S. asylum program. The rule also proposes significantly increasing the fee to use the H-1B electronic registration system.
Under the proposed rule, employers hiring high-skilled foreign nationals will pay 70% more for beneficiaries on H-1B petitions, 201% more for employees on L-1 petitions and 129% more for individuals on O-1 petitions. (H-1B petitions increase from $460 to $780, L-1 petitions rise from $460 to $1,385 and O-1 petitions increase from $460 to $1,055.)
For adjustment of status to gain permanent residence inside the United States, filing forms I-485 (adjustment of status), I-131 (for advance parole) and I-765 for a work permit (on paper) with biometric services will increase by 130% (from $1,225 to $2,820). These costs may be multiplied if a principal has dependents. Filing forms I-485 and I-131 electronically would be a 77% increase (from $1,225 to $2,170).
Fees for named beneficiaries for H-2A petitions (for agricultural workers) will rise by 137% (from $460 to $1,090) and for H-2B petitions (for seasonal, nonagricultural workers) by 135% (from $460 to $1,080). Economists would note that fee increases on these visa categories would work against the desire of U.S. policymakers for more workers to enter the United States legally.
An immigrant petition by a regional center investor will increase by 204% (from $3,675 to $11,160), and a petition by an investor to remove conditions on permanent residence status will rise by 154% (from $3,750 to $9,525).
Another element of the proposed rule is premium processing would take longer: USCIS would process a case within 15 business days rather than the current 15 calendar days.
Employers will also notice two other significant fee increases. First, “DHS [Department of Homeland Security] proposes a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker.”
Dan Berger of Curran, Berger & Kludt confirms employers might pay this $600 fee more than once for the same individual. For example, an employer may file an initial H-1B petition, an extension of H-1B status and then file an immigrant petition (I-140) for an employment-based green card.
USCIS/DHS proposes to increase the H-1B Electronic Registration Fee for each beneficiary for an H-1B petition from $10, established in 2019, to $215, a 2,050% increase. “DHS understands that an increase from $10 to $215 may appear to be exorbitant at first glance,” according to the justification for the increase in the proposed rule.
If, in future years, the number of H-1B registrations remains the same as in FY 2023, employers collectively would pay approximately an additional $100 million annually under the proposed rule, based on a National Foundation for American Policy analysis.
USCIS does not justify the proposed $215 fee with much clarity, particularly since the system has already been set up and running for years. “USCIS lacks information on the direct cost of H-1B registration, but USCIS estimated the indirect costs of the H-1B registration program using the same methods as it did to calculate other fees,” according to the proposed rule. “The methodology for estimating the cost provides results that are similar to the USCIS Immigrant Fee, which was established as part of the FY 2010/2011 fee rule. However, the H-1B registration fee contains and funds fewer activities. DHS bases the proposed fee on the activity costs for the following activities: Inform the Public [and] Management and Oversight.”
It is unclear what the costs of “informing the public” for the H-1B electronic registration system are beyond posting the information on the USCIS website. The costs of “Management and Oversight” are also difficult to evaluate. One thing is clear: Elsewhere in the rule, USCIS views it as less expensive for the agency when forms are filed electronically (i.e., employers and others pay less when filing electronically). However, a system that used to be entirely paper-based—completed H-1B petition applications were mailed in to USCIS—is now electronic and employers are being asked to pay a much higher fee. On its website, USCIS states, “The electronic registration process has streamlined processing…”
Members of the legal, business and university community sympathize with the challenges USCIS faces after years of its problems piling up. However, there are also concerns about the proposed fee rule.
“While I understand that USCIS needs to increase the fees for benefits applications, it does not seem that the proposed fee rule will solve the real problems, which are, from our perspective as customers of USCIS, inefficiency in adjudications, outdated technology and processes, chronic understaffing and lengthy adjudications,” said immigration attorney Dagmar Butte of Parker Butte and Lane. “For example, increasing the combined fee for an I-485 Adjustment of Status filed concurrently with an I-765 Work Permit Application and an I-131 Advance Parole Document from $1,225 to $2,820 will not likely decrease adjudication times for the work and travel permits which currently average 7 to 12 months.
“If history is a guide, my client, who is the spouse of a U.S. citizen and has been waiting on his work permit approval since December 1, 2021, would likely not see much improvement in that timing merely as the result of a fee increase. Processing times in these product lines increased after the last fee increase was implemented.”
The impact of the $600 fee per employment application to fund the U.S. asylum program has also raised concerns. “For many colleges and universities, the proposed additional fee, tacked on top of existing costs and other proposed fee increases, could be very difficult to absorb and could impact their ability to hire the talented faculty and researchers needed to teach and conduct critical research,” according to Miriam Feldblum, the executive director of the Presidents’ Alliance on Higher Education and Immigration.
Dagmar Butte points out two other problems: The adjustment of status fee of $2,820 in the proposed rule could cost a family with two children over the age of 14 more than $11,000. “The proposal to charge more for paper filings is also problematic,” she said. “In an ideal world, it makes sense. But in a world where USCIS routinely loses parts of filings, does not yet have a reliable method for uploading supporting documents, and there is little transparency as to what happens after the ‘submit’ button is clicked, filers are hesitant to use the electronic method given the consequences even if USCIS causes the errors.”
The most-covered immigration news story over the past few years is about how to process individuals who seek asylum at the Southwest border. However, members of Congress, who have been vocal about border issues, have failed to provide sufficient funding for asylum officers and other elements of the process. As a result, USCIS has tried to address the problem through a $600 fee on petitions for needed workers and professionals.
In the private sector, consumers pay a price and receive a product or service. With the $600 fee on petitions to fund the asylum program, the federal government is requiring employers to pay for something from which they receive no benefit. USCIS is likely to receive many comments about the proposed higher fees.
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