USCIS Proposal for Substantial Fee Increase and Imposition of New Filing Fees

As previously reported on MurthyDotCom, the U.S. Department of Homeland Security (DHS) published a new proposed rule on Thursday, November 14, 2019, outlining significant increases for many U.S. Citizenship and Immigration Services (USCIS) filing fees. The increases will result in a weighted average increase of 21 percent. In addition to outlining increased fees, the proposed rule introduces new fees, eliminates certain fee waivers, and proposes a revision to the premium processing service offered by the USCIS. Since this is only a proposed rule, there is no determined effective date for the changes. The DHS is currently accepting comments on the proposal through December 16, 2019. After the comments have been processed, the DHS will publish a final rule, which should include an effective date.

Proposed Fee Increases

A complete list of the new fees is in the published rule; however, the most notable changes are outlined below. One of the largest increases is the filing fee for the application for naturalization (form N-400), which is increasing by 83 percent.

Re-Introduction of New Fees for EAD and AP Filings

In its rule, the DHS also proposed introducing new filing fees. The USCIS would now require separate filing fees for any application for employment authorization (form I-765) and application for travel document (form I-131) that is filed concurrently with an application to register permanent residence or adjust status (form I-485), or while the I-485 filing is pending.

Since July 30, 2007, any applicant filing an I-485 has been able to file forms I-765 and I-131 to request interim benefits, including employment authorization documents (EADs) and advance parole documents (I-131s) without paying a separate fee. Under the proposed rule, however, an I-485 applicant would have to pay the standard I-765 and I-131 filing fees. In addition, an applicant who files to extend an EAD while the I-485 is pending would also have to pay the I-765 filing fee. This would effectively increase the filing fees when submitting an I-485 application concurrently with EAD and AP applications to $2,195 from its current $1,225.

New I-589 Asylum Filing Fee

In addition, for the first time, the USCIS would charge a filing fee for an I-589 asylum application and a filing fee for a request for renewal of status under Deferred Action for Childhood Arrival (DACA).

Proposed Changes to the Form I-129 and Increased Fees

In addition to adjusting certain filing fees, the DHS is proposing that the petition for nonimmigrant workers (form I-129) be separated into various different forms. Currently, a petitioner can use form I-129 for a number of nonimmigrant classifications, including H1B, L-1, TN, and E classifications. Under the proposed rule, the DHS would divide the I-129 into eight different forms. Each individual form would also require a separate fee.

DHS is justifying the division of the forms into separate forms due to the differing adjudication times of each petition.

Increased Fees for Certain H-1 and L-1 Dependent Employers

The proposed rule also includes a policy change, which would affect employers who have more than 50 employees, of whom more than 50 percent are working pursuant to H-1 or L-1 status. These employers are currently required to pay an additional $4,000 filing fee for each initial application filed on behalf of an employee. Under the proposed policy change, however, these employers would be required to pay the additional $4,000 fee with every H-1 or L-1 petition, including extension requests.

Changes in Premium Processing Timeline

In its proposed rule, the DHS also would increase the amount of time the USCIS has to adjudicate petitions filed for premium processing to 15 business days. Under the current rule, the USCIS has 15 calendar days.

Combination of Biometric and Filing Fees

The proposed rule included proposed changes to the acceptance of biometric fees. Some USCIS forms, like the I-539 and certain I-765s, require an additional biometric filing fee. Under the new fee schedule, the biometric fees would be combined with the form’s filing fee. According to the agency, this would result in fewer rejections for an applicant’s failure to submit a separate biometric services fee. The only exception to this change would be for applications for temporary protected status (TPS). Those applicants would continue to submit separate biometric fees with the underlying filing fee.

Additional Limits on Fee Waivers

As reported on MurthyDotCom in the NewsBrief, USCIS Restricts Criteria to Apply for Fee Waivers (13.Nov.2019), the USCIS implemented a stricter, more formalized fee waiver policy earlier this year. Under this new policy, which is effective December 2, 2019, the receipt a of means-tested benefit will no longer be considered a criterion to qualify for a fee waiver. As such, under the most recent fee waiver policy, an applicant can apply for a fee waiver only if (1) the applicant’s household income is at or below 150 percent of the federal poverty guidelines; or (2) the applicant is experiencing extreme financial hardship.

Under the proposed November 14, 2019 rule, however, the USCIS would further limit the ability of an applicant to apply for a fee waiver in two ways. First, the USCIS would only grant a fee waiver for an applicant with a household income of less than 125 percent of the federal poverty guidelines. Second, the USCIS would no longer accept fee waivers for several forms, unless the law specifically requires a fee waiver based on the circumstances of the applicant. Generally, under the law, the USCIS is only required to grant fee waivers to certain applicants, including applicants under the Violence Against Women Act (VAWA), victims of criminal activity or victims of trafficking, applicants who hold TPS, or certain battered spouses and children.

The proposed rule suggests eliminating fee waiver eligibility for the following forms, unless the applicant is in one of the classes listed above, including (but not limited to):

1. Form I-90, Application to Replace Permanent Resident Card
2. Form I-765, Application for Employment Authorization
3. Form I-485, Application to Register Permanent Residence or Adjust Status
4. Form I-751, Petition to Remove Conditions on Residence
5. Form N-400, Application for Naturalization

Conclusion

The proposed rule represents a significant cost increase. In addition to the increase in fees, the revisions to the premium processing service timeline will result in longer adjudication timelines that would impact stakeholders heavily. Individuals who wish to submit comments on the proposed rule can do so by visiting the Federal Register’s website.

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