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 aNonimmigrant Worker) used to sponsor professionals to come to the
U.S
. The Form I-129 will be separated into severaldifferent 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 PL114-113 Filing Fees:
Employers who are heavy users of theH-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 ProcessingService
: Premium processing service provided by USCIS foran 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 ProcessingFee
: The biometric processing fee for certain immigrationbenefit 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
: Separatefees 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 ApplicationFee
: 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.