By Shelley Starzyk, Immigration Attorney
USCIS has proposed a new filing fee structure that may drastically increase costs for certain types of immigration filings, including some employment-based visa categories. USCIS is collecting public feedback on the proposed until mid-March, and finalized new fees are expected to be announced in the coming months. Read on to learn the details of USCIS’ proposed fee structure and the changes you may see in commonly used visa categories.
USCIS Proposed Fee Increases
On January 3, 2023, the U.S. Citizenship and Immigration Service (USCIS) proposed an increase in filing fees through a published Notice of Proposed Rulemaking. USCIS relies on collected filing fees to fund its operations, as congressional budget appropriations only account for approximately 2 to 5 percent of USCIS’ annual operating budget. This will be the first comprehensive USCIS fee increase since December 2016, with these fees intended to fund 96% of USCIS’ current operational costs. USCIS asserts that the fee increases are necessary to meet customer service obligations and provide timely adjudications, as well as all support other non-adjudicatory functions. USCIS notes that without these fee increases, they would be unable to maintain case processing times and their current backlog, which has already reached historic levels, would likely increase substantially.
USCIS’ proposed filing fee rule contains extensive changes to both filing fee amounts and the structuring of some immigration related fees. The significant changes contained in this proposed fee rule are as follows:
- Setting new filing fees reflecting increases for many immigration visas and categories.
- Adding new fee exemptions for humanitarian programs and preserving fee waiver requirements.
- Removing fee exemptions based on the age of the applicant.
- Eliminating returned check fees.
- Incorporating the biometrics fee into the main benefit’s filing fee.
- Lowering filing fees for certain case types when filed online.
- Establishing separate fees for the I-129 Petition for Nonimmigrant Worker based on the visa classification.
- Revising the 15- day Premium Processing timeframe from calendar days to only counting business days.
- Requiring separate fees for the I-485 application, Form I-765 and Form I-131.
The proposed rule will drastically increase costs for certain types of employment-based immigration filings, with more modest increases for other types of filings. USCIS, in an effort to promote their online filing system has also proposed slightly lower fees for online submission of certain immigration petitions and applications. Because of the extensive list of fees that will increase, we are providing some of the highlights below, with a link to the full published proposed rule available here.
Employment Based Visa Proposed Fee Changes and Increases
Significant fee changes proposed for employment-based visas, include the following.
1. Form I-129: Fee Increases and Change in Fee Structuring
For employment based nonimmigrant visas filed on Form I-129, USCIS is increasing fees and restructuring its fee methodology. The I-129 petition form is a multi-use form submitted with many different nonimmigrant visa petition requests. This form is currently designed with one flat filing fee of $460, regardless of the type of visa being requested, with additional fees added to certain H and L petitions. The new proposed filing fee structure upends this, indicating different Form I-129 filing fees for different categories, while still upholding the additional required fees, such as fraud, ACWIA, and fees or other mandated visa-specific fees in place now. Some of the commonly seen Form I-129 nonimmigrant visa types, and the corresponding proposed USCIS filing fee increases, are outlined below:
- H-1B visa petitions have a proposed filing fee increase to $780.
- TN, E, P and Q visa petitions have a proposed fee increase to $1,015.
- L-1 visa petitions have a proposed fee increase to $1,385.
- O-1 visas have a proposed fee increase to $1,055.
2. H-1B CAP Registration Fee Increase
USCIS is proposing a significant increase for the H-1B visa CAP registration cost, raising the current $10 fee to $215 for the online H-1B CAP lottery registration process. This fee, if implemented, would not take effect until after the March 2023 H-1B CAP registration window for FY 2024 is complete.
3. Form I-539 Change or Extension of Status Applications
Under the proposed fee structure, any change or extension of status petitions filed on Form I-539 will also see a proposed increase from $370 to $620 if filed on paper, with a slightly lower fee of $525 if filed online. These fees are typically applicable for nonimmigrant employment visa dependents, who request a change or extension of status while in the United States.
4. New Asylum Program Fee – Limited to Employment Based Visa Petitions
In addition to these increased fees, USCIS is also proposing an additional “Asylum Program Fee” of $600 to be required with all nonimmigrant and immigrant employment-based petitions. This $600 fee would be required of any employer-filed Form I-129 or Form I-140 in addition to that form’s assigned filing fee, and any other government mandated fees. This fee is significant to the cost of maintaining an employee’s nonimmigrant visa, as each extension, renewal or amendment filed to USCIS on Form I-129 would require the payment of this $600 fee.
USCIS is justifying this $600 fee cost, stating “DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers.” In public commentary on the proposed rule, there is significant discussion over whether allotting these fees only to employment-based visa categories is the appropriate way to distribute such costs, instead of spreading the costs as an increase across all USCIS filing fees. Should this Asylum Program fee method of funding the asylum program successfully pass the public comment period, we hope that such a fee structure would require further USCIS accountability in standardizing and reporting asylum adjudication periods and program results to these involuntary new stakeholders.
Changes to Green Card/Adjustment Application Costs
USCIS is proposing a 35%+ fee increase to green card applications (Form I-485) with a proposed flat fee of $1,540 per application, moving away from the current fees of $1225 for applicants over age 14 and $750 for applicants under age 14 who are filing concurrently with a parent. USCIS is also proposing to restructure this fee by separating out the I-485 filing fee and the fees for the associated concurrent filings of Form I-131 (Advance Parole) and Form I-765 (Employment Authorization Document). Under the current fee structure, the filing fees for an adjustment of status-based Form I-131 and Form I-765 are incorporated into the I-485 filing fee. The current fee structure makes a long pending green card application more financially burdensome on USCIS than on the applicant. USCIS’ new proposed fee structure places the financial burden of USCIS’ delayed green card adjudications squarely on applicants, charging a separate filing fee of $630 per Form I-131 application, and $650 per Form I-765 application for online or paper filing. This brings the total initial filing cost of a green card application with these standard accompanying applications to $2,820 per applicant, a total overall increase of 130% of the current filing fees. Delays in I-485 adjudication may require applicants to repay the Form I-131 and Form I-765 filing fees more than once during the pendency of their green card case to maintain travel and work authorization.
Family Based Immigration Fees
USCIS has proposed an increase to family-based immigration fees as well. Family based immigrant visa petitions (Form I-130) have a significant proposed fee increase. USCIS has proposed a fee increase for the paper filed Form I-130 from $535 to $820, while the online version of the filing will cost $710, an increase of 33 to 35%. Fiancé petitions will see a 35% increase to the current filing fee, with the new proposed fee at $720. Petitions to remove conditions on residence for two-year conditional green cards (Form I-751) will also see a substantial increase from a current fee of $680 (with biometrics) to a new fee of $1,195, a 76% increase.
Naturalization Fees
USCIS kept its proposed fee increases modest with respect to naturalization. USCIS is proposing a 19% increase in naturalization application fees, with the filing fee for naturalization now set at $760. Because the biometrics fee is now included as part of the filing fee, this is an effective increase of $35 from the prior combined biometrics fee and naturalization application filing fee cost of $725. USCIS has also proposed changes in some additional naturalization filing fees for replacing documents and preserving residence with the highest fee increase being approximately 20%.
Humanitarian Fees
The majority of humanitarian immigration related applications and petitions have seen only minor proposed increases, with some fees actually decreasing.
Conclusion
USCIS’ new proposed fee rule provides some drastic changes to fees and the way that USCIS has structured application and petition fees historically. USCIS justifies these significant fee increases as a result of the expansion in USCIS’ overall operating expenses. USCIS states that it must have additional income to meet current demands and reduce growing processing time backlogs. As this proposed fee rule is still in the comment period until March 13, 2023, it remains to be seen what the final rule and fee increases will look like. Once a new rule is published Parker Gallini will provide further guidance on what new fee requirements will look like.
Immigration at Work 