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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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