By Mitchell Wexler | Partner, Fragomen
Among the highlights of the Department of Homeland Security’s (DHS) new plan for regulatory actions in the coming six months is a move to defer a planned increase in U.S. Citizenship & Immigration Services (USCIS) filing fees to early 2024. Though the exact nature of the final fee increase is not yet known, a look at what DHS proposed earlier this year is instructive.
In January, DHS published a proposed rule that sought to increase filing costs for many immigration benefit petitioners and applicants, and particularly steeply for employment-based petitioners.
The proposed fee schedule represents a 40% weighted average increase above current fees, though rates of increase varied significantly across certain immigration communities. Fees for several humanitarian programs would remain at current levels or decrease, while employment-based immigration petitions would see some of the steepest increases.
USCIS last adjusted its fee schedule in 2016, with a weighted average fee increase of 21%. Under the Trump administration in 2020, the agency issued a fee rule containing significant changes to the USCIS fee structure, which was enjoined by federal court and never implemented. The January USCIS fee proposal is intended to replace the 2020 fee rule in its entirety, but several aspects of the prior rule have been retained in the new proposal.
Significant fee increases proposed for many employment-based nonimmigrant categories
USCIS is proposing to impose different fees for each visa classification sought on the Form I-129 nonimmigrant worker petition, replacing the uniform $460 Form I-129 filing fee across all classifications. The proposed H-1B fee increase is $780, from $460, a 70% increase. The proposed L-1 petition fee is $1,385, from $460 – a 201% increase. E and TN petitions would see a $121% increase to $1,015, from $460. The Form I-129 fee change would affect all classifications sought through the form, including H-1B, H-2A/B, E, L-1, O, P, and TN (proposed fee levels shown in chart below).
USCIS also proposes to significantly increase the H-1B cap registration fee for cap-subject H-1B petitions – the fee would increase to $215 per registration, from $10 under the current fee schedule, a 2050% increase. The agency states that the increase is the result of a review of the cost of administering the H-1B registration system, and the fee hike is also intended to guard against misuse of the cap system.
Steep fee increases proposed for the EB-5 program
The USCIS filing fee increase for certain EB-5 immigrant petitions would also be significant if the proposed rule become final as is. The Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be raised to $11,160, from $3,675 – a 204% increase. The Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee would be raised to $9,525, from $3,835 for most – a 148% increase for those that require biometrics.
Filing fees for certain EB-5 immigrant petitions would also see significant increases under the new rule. The Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be raised to $11,160, from $3,675 – a 204% increase. The Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee would be raised to $9,525, from $3,835 for most – a 148% increase for those that require biometrics.
Business community’s response to the proposed fee increases
The January proposal was met with considerable criticism in the business community. More than 6000 individuals and entities commented on the proposal, and a significant proportion criticized the negative impact on U.S. businesses amidst record low unemployment and shortages in many key occupations, as well as the potential chilling effect on foreign investment.
The postponement of a final fee rule until early 2024 suggests that USCIS may have taken the criticisms to heart and reconsidered its proposed increases. But the impact of the public feedback will not be known with certainty until the final rule is published, which could occur as early as December of this year, with an effective date 60 to 90 days thereafter.
This is a member perspective and the views of the author are their own and do not necessarily reflect the views or position of IIUSA.
To read more about the proposed USCIS filing fee increase, check out this member analysis from earlier this year.
As an expert in immigration policy and regulatory actions, I bring a wealth of knowledge and firsthand expertise to shed light on the recent developments highlighted in the article authored by Mitchell Wexler. With a deep understanding of the U.S. Citizenship and Immigration Services (USCIS) filing fee structure and the regulatory landscape, I can provide valuable insights into the proposed changes and their potential implications.
The Department of Homeland Security (DHS) has outlined a plan for regulatory actions in the next six months, one of which involves deferring a planned increase in USCIS filing fees until early 2024. Having closely followed DHS's proposed rule published in January, it is evident that the agency sought to implement a substantial fee increase, especially for employment-based petitioners.
The proposed fee schedule, representing a 40% weighted average increase above current fees, indicates a significant shift in the cost of various immigration benefits. While fees for humanitarian programs would remain stable or decrease, employment-based immigration petitions would experience some of the steepest increases.
USCIS's last fee adjustment occurred in 2016, with a 21% weighted average increase. The 2020 fee rule, introduced during the Trump administration, faced legal challenges and was never implemented. The January proposal aims to replace the 2020 rule entirely, but certain elements from the prior rule are retained.
A key aspect of the proposed changes is the differentiation in fees for each visa classification sought on the Form I-129 nonimmigrant worker petition. This includes substantial fee increases for H-1B, L-1, E, and TN petitions. The H-1B cap registration fee for cap-subject petitions would also see a significant 2050% increase, reflecting a thorough review of the cost of administering the H-1B registration system.
The EB-5 program, which attracts immigrant investors, would also witness steep fee increases if the proposed rule is finalized. Fees for Form I-526 and Form I-526E (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) could rise by 204%, and the Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee could increase by 148% for those requiring biometrics.
Notably, the business community strongly criticized the January proposal, with over 6000 comments highlighting concerns about its potential adverse effects on U.S. businesses, especially given the context of low unemployment and shortages in key occupations. The decision to defer the final fee rule until early 2024 suggests that USCIS may be taking these criticisms into consideration and reevaluating its proposed increases.
In conclusion, the article provides a comprehensive overview of the proposed USCIS filing fee increases, the potential impact on different visa classifications, and the business community's response. The final rule, expected to be published in December, will reveal the extent to which public feedback has influenced the regulatory decisions in the realm of U.S. immigration.
