USCIS Proposing Rule to Increase Filing Fees to Meet Operational Needs – What do Employers Need to Know?

The U.S. Citizenship and Immigration Services (USCIS) has proposed a rule to increase the filing fees for most of its applications and petitions for immigration benefits. The proposed rule will adjust the USCIS fee schedule by a weighted average increase of 21%.  The increase in filing fees is needed in order to ensure USCIS has the resources to provide adequate and timely service to the public with respect to its review of applications and petitions, detect immigration fraud, and perform proper security checks of foreign nationals applying for immigration benefits.  While there are several provisions within the proposed rule that impact non-employment-based individuals, this article will only address those provisions impacting U.S. employers.

 

Some of the provisions within the proposed rule that U.S. employers should be aware of include the following:

 

  • Form I-129 (Petition for a Nonimmigrant Worker) used to sponsor professionals to come to the U.S. The Form I-129 will be separated into several different forms, depending on the type of immigration benefit the foreign national is being sponsored for by the employer. Different filing fees will be applicable, rather than one standard filing fee for all immigration benefit categories.  The USCIS has indicated that charging more for certain immigration benefit categories is appropriate, because this will help to fund the Administrative Site Visit and Verification Program (ASVVP), since only certain immigration benefit categories are subject to site visits.  In addition, higher filing fees are required for certain immigration benefit categories, because of the increased time it often takes to adjudicate these by USCIS examiners.  Here is a summary of the proposed Form I-129 form types and the corresponding filing fees (Note:  Currently the filing fee for the Form I-129 is $460.00):

 

Form I-129H (Petition for Nonimmigrant Worker or H-1B1 Free Trade Nonimmigrant Worker):  Filing fee will increase to $560.00. (Note:  The proposed rule does not alter the $500.00 Fraud Prevention and Detection fee or the $1,500.00 (or $750.00 if employ 25 or fewer workers) American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee that certain H-1B and H-1B1 petitioners are required to pay. However, the proposed rule does have a provision that impacts the $4,000.00 PL 114-113 filing fee certain employers are required to pay, because these employers employ 50 or more workers, with 50% of the workers in H-1B or L-1 status. See below for the proposed changes to the $4,000.00 PL 114-113 filing fee.)

Form I-129L (Petition for a Nonimmigrant Worker: L Classification):  Filing fee will increase to $815.00. (Note:  The proposed rule does not alter the $500.00 Fraud Prevention and Detection fee that certain petitioners are required to pay. However, the proposed rule does have a provision that impacts the $4,500.00 PL 114-113 filing fee certain employers are required to pay, because these employers employ 50 or more workers, with 50% of these workers in H-1B or L-1 status. See below for the proposed changes to the $4,500.00 PL 114-113 filing fee.)

Form I-129O (Petition for a Nonimmigrant Worker:  O Classification): Filing fee will increase to $715.00.

Form I-129E&TN (Application for Nonimmigrant Worker:  E and TN Classification):  Filing fee will increase to $705.00.

Form I-129MISC. (Petition for a Nonimmigrant Worker:  H-3, P, Q, or R Classification):  Filing fee will increase to $705.00.

 

  • $4,000.00 and $4,500.00 PL 114-113 Filing Fees: Employers who are heavy users of the H-1B and L-1 programs are subject to additional filing fees, besides the Form I-129 filing fee, fraud fee, etc. described above. H-1B and L-1  petitioners who employ 50 or more workers, with 50% of these workers in H-1B and L-1 status, are required to pay an additional filing fee of $4,000.00 when filing an H-1B petition, or an additional filing fee of $4,500.00 when filing an L-1 petition.  Currently, the additional $4,000.00 (H-1B) $4,500.00 (L-1) filing fees are only paid when an employer files an initial H-1B or L-1 petition with the government, similar to the one-time $500 fraud fee that is required to be paid for each initial H-1B or L-1 petition.  However, the proposed rule would require employers who are heavy users of the H-1B and L-1 programs to pay the $4,000.00 (H-1B) or $4,500.00 (L-1) PL 114-113 filing fees for all extension petition filings.  If this rule is implemented, this will result in a considerable cost to U.S. employers that are heavy users of the H-1B and L-1 programs.  Based on the language in the proposed rule, it appears that the USCIS has taken the position that the language in the law, which imposes the $4,000.00 and $4,5000.00 filing fees, was not interpreted properly in the past, and that based on the USCIS’ new interpretation of the language contained within the law imposing these fees, the $4,000.00 and $4,500.00 filing fees should be required to be paid by employers when filing extension petitions for H-1B and L-1 workers. Given that USCIS has only imposed the $4,000.00 (H-1B) filing and $4,500.00 (L-1) filing fee for years with initial H-1B and L-1 petition filings, respectively, it seems unusual for the government to now change its interpretation. If the provision in the proposed rule stands, imposing the $4,000.00 (H-1B) and $4,500.00 (L-1) filing fees for not only initial petition filings, but extension petition filings, as well, it is likely that it will be challenged through some type of litigation.

 

  • USCIS Premium Processing Service: Premium processing service provided by USCIS for an additional filing fee may change, whereby, instead of processing a petition within 15 calendar days upon payment of the premium processing fee, USCIS will process a petition within 15 business days.  As a result, U.S. employers should be prepared that premium processing service may take the USCIS longer to adjudicate in the future.  Besides changing the timeframe in which a premium process case will be processed by the USCIS, the proposed rule also indicates that the premium processing fee may increase in the future due to inflation.  (Note:  The USCIS filing fee for premium processing service is currently $1,440.00. This fee took effect on December 2, 2019.)

 

  • Biometric Processing Fee: The biometric processing fee for certain immigration benefit categories will be eliminated and will be included into the underlying benefit request fee.  This change will relieve the USCIS’ administrative burden and make it easier for the public to calculate filing fees.

 

  • Charge for Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Travel Document) Processing: Separate fees will be charged to process Form I-485, Form I-765, and Form I-131 applications.  This change is being made as a result of the backlog in priority dates for many different preference categories. These backlogs require applicants to renew their Employment Authorization Document (EAD) and Advance Parole multiple times before receiving their Green Cards.  USCIS does not have the resources to process these EAD and Advance Parole applications in the future at no charge.  S. employers or foreign national workers will need to now budget for these additional filing fees.

 

  • Green Card Application Fee: All Form I-485 applicants will pay one filing fee of $1,120.00, including children.

 

Some of the provisions in the proposed rule to increase filing fees suggest that U.S. employers and/or the public may pay the same money, or more money, but receive less service from USCIS (Examples:  Changing 15 calendar days to business days for premium processing service and charging children the same filing fee to process a Form I-485 application as an adult).  It is possible that some provisions, if adopted, may be litigated (Example:  Requiring H-1B and L-1 employers to pay the $4,000.00 or $4,500.00 PL 113-114 fee for initial petition filings as well as extension petition filings).  Comments to the proposed rule are due by December 31, 2019, and it anticipated that the rule to increase USCIS filing fees may take effect in early 2020, around the time of the implementation of the H-1B registration system for the upcoming H-1B cap season.  As  result, U.S. employers will likely need to plan and budget accordingly, as well as monitor the movement of the rule through the rule making process, as well as watch for any possible litigation.

 

Author: Matthew Morse, matt@employmentimmigration.com



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