A new lawsuit challenges a federal charge rule that would increase the costs for some employers to file for immigration. In the event that the case is successful, the dispute could keep businesses significantly in comparison to the anticipated costs, as determined by a final rule released by the United States Citizenship and Immigration Services on January 31, 2024. The rules ‘ taxes take effect on April 1, 2024.
The Rule Do establish Exorbitant Fee Increases on Employers.
Under the law, companies may pay 70 % more for participants on H- 1B requests, 201 % more for people on L- 1 requests and 129 % more for people on O- 1 petitions. Companies will also be subject to a fresh$ 600 Asylum Program Fee when submitting Type I- 129, Petition for a Nonresident Worker, or Form I- 140, Immigrant Petition for an Alien Worker. Additionally, the organization may increase the H- 1B Electronic Registration Fee from$ 10 to$ 215 for each recipient.
According to Lynden Melmed of BAL, the agency’s larger clients should anticipate higher processing costs in the first year that will increase prices by 115 % to 175 %. A list of the fresh costs can be found on the USCIS site.
According to the National Foundation for American Policy, the majority of companies will spend approximately$ 9,400 to file a petition for a first-time H-1B card recipient under the new price law, assuming superior handling and typical attorney fees.
Most companies would pay an H-1B expert filing extension, which would cost about$ 18, 000. ( USCIS usually requires additions when H- 1B employees change sites, not just after three decades in H- 1B standing. )
Over the past two years, companies have paid more than$ 6 billion in H- 1B costs to finance approximately 100, 000 fellowships for U. S. pupils in science and technology fields and career training for U. S. workers, according to the NFAP research.
Defying The Fee Rule
The final rule is challenged in a number of ways by the lawsuit. According to a lawsuit filed on March 19, 2024 in the U.S. District Court for the District of Colorado in the Tenth Circuit,” The Final Rule should be enjoined preliminarily and permanently because it was promulgated without appropriate notice and comment, arbitrarily forces some businesses and individuals, but not all, to fund asylum adjudications, and unlawfully imposes fee increases of 100 % or higher on foreign investors seeking immigrant status based on the creation of jobs for United States workers
The plaintiffs are the ITServe Alliance, an employer group, the American Immigrant Investor Alliance and Samantha Moody, a Canadian citizen and EB- 5 investor. The defendants ‘ attorneys are Matthew T. Galati of the Galati Law Firm, LLC, and Jonathan Wasden of Wasden Law, Jesse M. Bless of Bless Litigation LLC.
The complaint states the lawsuit does not intend” to derail Defendants, Alejandro Mayorkas, Secretary, U. S. Department of Homeland Security (” DHS” ), and Ur M. Jaddou, Director of United States Citizenship and Immigration Services (” USCIS” ), from charging reasonable fees for the adjudication of immigration benefits”, but to” to ensure Defendants promulgate a rule in accordance with law and procedure”.
The plaintiffs ‘ complaint makes three arguments. First, it states that the final rule “is unlawful because it was promulgated without adequate notice and comment.” The final rule, in the opinion of the complainant, is in contravention of the Administrative Procedure Act because it “does not adequately provide the terms or substance of the proposed rule, or a description of the subjects and issues involved” and “fails to give people adequate opportunity to participate in the rulemaking process.”
Second,” The Final Rule is unlawful because it arbitrarily and above statutory authority imposes an” Asylum Program Fee” that taxes some categories of petitioners for employment-based immigration benefits between$ 300 and$ 600 per benefit request to fund DHS’s asylum program.”
Third,” The Final Rule doubles immigrant investor fees through the EB- 5 program in violation of law”, according to the complaint. Without conducting a fee study and adhering to the statutory principles of the RIA]EB-5 Reform and Integrity Act of 2022,” USCIS imposed new fees on immigrant investors and regional centers in the Final Rule.
When publishing the final rule, DHS and USCIS asserted that it was in line with the Immigration and Nationality Act and “non-statutory guidance” and “accounts for, and is consistent with, congressional appropriations for, specific USCIS programs.”
If a judge declines the plaintiffs ‘ request for a preliminary injunction, the fees will start going into effect on April 1, 2024.
