By Victoria Morte, Immigration Attorney
The Department of Homeland Security (DHS) has published a proposal to increase US Citizenship and Immigration Services (USCIS) filing fees by a weighted average of 21% across all nonimmigrant and immigrant classifications and to extend the timeline of cases filed with USCIS’ Premium Processing service. The proposed fees and processing changes come at a time when immigration practitioners and benefit applicants characterize USCIS’ adjudication policies as an “Invisible Wall” built by the President’s administration, with rates of Requests for Evidence (RFEs) and Denials on the rise and processing times extending to five-year highs for a number of employment-based classifications. Following a 30-day public comment period ending on December 16, and barring any court action or other delays, the proposed fees, listed below, could go into effect as early as January 2020.
The Fee Increase in Context
In 2003, USCIS assumed responsibility for the administration of immigration benefit applications following Congress’ enactment of legislation dismantling the legacy Immigration and Naturalization Service (INS). At the same time, other legacy INS immigration oversight functions, namely immigration enforcement and border security, were assigned to the newly-formed Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) respectively.
USCIS’ operations are fee-funded, with collected filing fees accounting for 96% of USCIS’ budget. Fees paid to USCIS cover the cost of adjudicating benefit requests, which includes the costs associated with detecting and determining immigration fraud and vetting applicants, petitioners, and beneficiaries. Federal law requires USCIS to review its fees every two years and recommend adjustments based on analysis of incoming and outgoing expenditures associated with its administration of immigration benefit applications. USCIS’ FY 2019 review concludes that current fees would underfund USCIS by approximately $1.3 billion annually, leading DHS to recommend a 21% increase in FY 2020 and 2021.
Despite USCIS’ current operating deficit and reliance on fees, DHS’ fee proposal also states that increased USCIS fees will be used to recover a $200 million transfer of collected fees to fund ICE enforcement operations included in the President’s FY 2019 and 2020 budget requests. In support of this unprecedented interagency transfer of funds, DHS asserts that USCIS shares responsibility for ensuring the integrity of the US immigration system beyond the approval or denial of a petition, including supporting ICE investigations of potential immigration fraud by those who have applied for immigration benefits adjudicated by USCIS.
Changes for H-1Bs and L-1s
Among the sweeping changes included in the proposal, DHS recommends changes to the fees and processing of H-1B and L-1 petitions. USCIS Form I-129, Petition for a Nonimmigrant Worker is used to support individual petitions for employees seeking H-1B, L-1, and other temporary classifications. Currently, the filing fee for Form I-129 is $460, consistent across each classification, with additional anti-fraud and workforce training fees required in certain H-1B and L-1 filings.
The new fee structure proposes different Form I-129 fees based on the nonimmigrant classification requested, raising the fee for H-1B filings by $100 to $560 (a 22% increase) and L-1 filings by $355 to $815 (a 71% increase), exclusive of Premium Processing and other required filing fees.
Under its current structure, USCIS allows petitioners to pay an additional filing fee to request Premium Processing service for expedited 15-calendar day processing of immigration filings in designated classifications. DHS has already announced an increased fee of $1440 effective December 2, 2019 and is now proposing to change the 15-day processing time from calendar days to business days, allowing USCIS additional time to complete adjudications on an expedited timeline without resorting to intermittent suspension of Premium Processing in certain categories as it has in the past. DHS cites an increase in premium processing requests as a core reason for relaxing the processing timeline. However, Premium Processing has become a business necessity for many employers in the face of increased RFEs and indeterminable non-premium processing times.
To put this fee increase in some context, over the last several years in the H-1B category, the rate of RFEs has nearly doubled from approximately 33% of filed petitions at the start of FY 2015 to 60% of petitions filed in FY 2019. The L-1 RFE rate was 38% at the start of FY 2015 and rose to nearly 52% in FY 2019. On the same timeline, the reported average processing time of non-premium Form I-129 filings has increased from 2.3 months in FY 2015 to 3.6 months by FY 2019. Actual processing times for non-premium H-1B filings currently range from 3.5 months to 10.75 months among the regional USCIS Service Centers adjudicating these filings, and L-1 processing times range from 1.5 to 7.5 months.
DHS is accepting public comments on the proposal through December 16, 2019. As USCIS proposes to raise fees and lower its own standards for expedited processing, employers are encouraged to submit comments detailing the impact of the “Invisible Wall” of increased fees, heightened scrutiny, and slower processing on American businesses and the economy. Submit comments online here.
Please contact any of our immigration lawyers with any immigration related matters.
Select Fees from USCIS Proposed Fee Schedule
Published November 2019
To download the table below as a PDF, select: Proposed Fee Schedule.