The new fee rule published at the end of January 2024 by the United States Citizenship and Immigration Services ( USCIS ) will take effect on April 1, 2024. USCIS last published an updated price plan in 2020, but because of litigation, those new taxes did not go into effect, and the company has no updated the fees it charges petition and candidates for multiculturalism benefits since 2016.
Just about 4 percent of USCIS’s businesses are funded by congressional budget, which means that the organization must pay operating fees. The agency derives its authority to collect fees from the Immigration and Nationality Act ( INA ), at section 286 ( m ), which instructs USCIS to establish or change, collect, and deposit fees into an account, called the Immigration Examinations Fee Account ( IEFA ) to fund the cost of “fairly and efficiently adjudicating immigration benefit requests”, including those provided without charge to refugee, asylum, and certain other applicants or petitioners.
Instead of pretty reimbursing services ‘ costs, the Biden administration is using this new payment plan to promote specific scheme objectives. How’s what you need to know about the coverage options that are embedded within the company’s fresh payment plan.
Is the New USCIS Fee Schedule Fair, Reader? on Spreaker.
Episode 148 of the Audio Is the New USCIS Fee Schedule Fair?
1. Fees Will Be Increased for Nearly All Kind Sorts, But They Will Not Be Proportional for All Types of Immigration.
In crafting how the USCIS payment plan will be structured, the Biden administration decided to mostly leave what is often referred to as the “beneficiary pays” process, which requires each recipient to cover the cost of the services they are requesting, in favor of relying more heavily on an “ability to paid” theory. This implies that DHS has chosen to generally set fees at a discount or for free for immigration services that benefit people who typically have bigger pockets ( such as employers and entrepreneurs ) as opposed to providing immigration benefits that are typically provided to people with less wealth ( notably, much of USCIS’s growing humanitarian docket ). DHS even suppressed costs for immigration advantages that the Biden administration has identified as interests, i. e., finds socially beneficial to advertise, such as naturalizations and births.
Employment-based immigration benefit requests will be subject to some of the most drastic fee increases. For example, the fee rule will charge most private employers who want to hire H- 1B workers 70 percent more, 201 percent more for employees on L- 1 petitions, and 129 percent more for aliens on O- 1 petitions. (H- 1B petitions increase from$ 460 to$ 770, L- 1 petitions increase from$ 460 to$ 370, and O- 1 petitions increase from$ 460 to$ 055 )
Conversely, USCIS will be subsidizing or otherwise suppressing fees for benefits the Biden administration has chosen to prioritize. Naturalizations, adoptions, and many other form of humanitarian service will not even be able to keep up with inflation, which has increased by about 26.37 percent in the US since January 2016. This means that unless USCIS successfully reduced the relevant labor and overhead costs of these adjudications on the agency ( which the agency has not claimed to have done ), all fees that have been increased by less than 26.28 percent are being offered at a discount relative to the cost of services determined in 2016 ( the last time DHS updated the fee schedule ).
The immigration benefits that will be provided at subsidized fees include:
- I- 90, Application to Replace Permanent Resident Card,
- I-130, Petition for an Alien Relative,
- I- 131 Application for Travel Document,
- Refugee Travel Document, I- 131,
- I- 140, Immigrant Petition for Alien Workers,
- I- 192, USCIS Application for Advance Permission to Enter as a Nonimmigrant,
- I- 193, Application for Waiver of Passport and/or Visa,
- I- 360, Petition for Amerasian, Widow ( er ), or Special Immigrant
- I- 539, Application to Extend/Change Nonimmigrant Status,
- I-600/I-600A, Petition to Declare an Orphan as an Immediate Relative,
- I- 612, Application for Waiver of the Foreign Residence Requirement,
- Application for Temporary Resident Status, I- 687
- I- 698, Application to Adjust Status from Temporary to Permanent Resident ( under section 245A of the INA ),
- I- 751, Petition to Remove Requirements for Residence,
- I- 765, Application for Employment Authorization,
- I- 800/ I- 800 A, Petition to Classify a Convention Adoptee as an Immediate Relative,
- I- 881, Application for Suspension of Deportation or Special Rule Cancellation of Removal,
- I-941, Entrepreneur Parole Application, I-941,
- N- 300, Application to File Declaration of Intent,
- Request for Hearing on a Decision in a Naturalization Proceedings, N-336,
- N- 400, Application for Naturalization,
- N- 470, Application to Preserve Residence for Naturalization Purposes,
- N- 565, Application for Replacement of Naturalization/Citizenship Document,
- N-600, Citizenship Application,
- USCIS Immigrant Fee, and
- Genealogy Record Requests
2. USCIS Is Redeeming the Majority of Naturalization Applicants at a Significant Discount
In addition to suppressing fees for naturalization services and other form types, USCIS went further to subsidize the naturalization process by offering a nearly 50 percent discount ( a savings of$ 380, or$ 330 if the applicant files online ) to all N- 400, Application for Naturalization, applicants who demonstrate that their household income is 400 percent of the Federal Poverty Guidelines ( FPG) or less.
The federal government adjusts the previous year’s poverty threshold annually to reflect inflation. The threshold considers family size and there are some adjustments made for the elderly and residents of Alaska and Hawaii. If they earn$ 60 or$ 240, an individual is regarded as having an income of 400 percent of the FPG. A household size of two people, however, can make as much as$ 81, 760 annually, a household size of three people can make as much as$ 103, 280 annually, and a household size of four people can make as much as$ 124, 800 annually and still qualify for this discount.
DHS stated that it is offering this discount in response to the public’s comments regarding the draft fee rule in an effort to “provide additional relief to longtime residents who struggle to pay naturalization fees without requiring further fee increases for other forms to offset the cost.” DHS continued that,” The increased income threshold for a reduced naturalization fee will also enable the United States to further benefit from newly naturalized citizens, including their greater civic involvement and tax revenues”.
All green card holders are eligible to work in the United States, and the majority of them already pay taxes. While it may be true that some green card holders may be able to increase their income because they have received citizenship, this potential is limited to government employment or other, uncommon forms of sensitive employment opportunities that are restricted from non- citizens. However, the potential increase in tax revenue is speculative, and USCIS’s need to balance its own budget is anything but. DHS, then, is essentially stating that its primary concern is increasing the number of people eligible to vote or hold public office.
The cost of the subsidized naturalization application is significantly higher than DHS has allowed. Based on CIS’s analysis of the Annual Social and Economic Supplement of the Current Population Survey from 2020, we estimate that at that time there were 10.4 million permanent residents in the United States who had lived in the country long enough to naturalize. We discover that roughly 65 percent of those who are “eligible to naturalize” have incomes below 400 percent of poverty and may be eligible for the half-price fee.
How much will the policy change reduce what is collected from naturalization applicants? The current filing fee for naturalization, including biometric services, is$ 760 if done on paper and$ 720 for those who do it online. Under the new fee schedule, those with an income that is 400 percent of the FPG or below would pay$ 380, whether filing online or by paper. If we assume a 50-to-50 split, the fee reduction would be on average$ 355 per applicant, even though we do n’t know how many papers and online applications are broken up.
In 2023, USCIS naturalized 878, 500 new citizens. The total loss in revenue would be$ 203 million if this number were taken into account and assuming 65 percent of future applicants receive the$ 35 reduction. Of course, this estimate is heavily dependent upon the number of naturalization applications USCIS will receive in the future.
3. The New Fee Rule Will Transfer Some of the Costs of the Border Crisis to U. S. Employers That Want to Hire Legal Foreign Workers
The proposed rule adds a new$ 600″ Asylum Program Fee” to employers who petition for alien workers in addition to significantly raising the fees for those who file for foreign workers and foreign investors. To be clear: This is not a fee to file an asylum application. According to DHS, this is a separate, additional fee that will primarily be used to support the Biden administration’s implementation of its March 2022 asylum processing rule, which is titled” Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” 87 Fed. Reg. 1818078 ( March 29, 2022 ) This rule changes border procedures to divert asylum applications that are submitted through the credible fear process from the U. S. Department of Justice ( DOJ) immigration court system to the already severely backlogged USCIS Asylum Division.
According to DHS, its new asylum processing regulation will cost the agency about$ 426 million to implement in 2023. DHS also clarified that the Asylum Program Fee it plans to charge employers may also be used to fund part of the costs of administering the entire asylum program and would be due in addition to the fee those petitioners would pay using USCIS’s standard cost and fee calculation methodologies.
USCIS made a few significant changes to the way the asylum processing rule is funded when it was finalized. First, instead of charging all employers the same$ 600 fee for every application or petition filed to USCIS on behalf of a foreign worker, the rule gives a break to small employers who will only be asked to pay an additional$ 300 per filing and will exempt nonprofit organizations from the asylum fee all together. Small employers are defined by the law as having no more than 25 employees.
To be clear, the fee will apply to all for- profit U. S. employers who petition for foreign workers with no regard to whether they have any connection to the asylum services. It is also crucial to point out that this fee will be added to all other fees that USCIS has already set aside for the processing and evaluation of foreign workers ‘ petitions and applications. The additional fee will be added to each filing an employer makes in the process of petitioning for a worker. Without making any connection to the program’s actual costs, one immigration attorney referred to the higher cost of employment visas as a” straight-up money grab.”
4. The Biden Administration Is Pressuring Congress To Provide USCIS Funding Through the New Fee Rule.
USCIS leadership appears to be using its new fee rule to inspire employers who are outraged by the dramatic increases to serve as a force- multiplier to lobby for USCIS appropriations. In the final rule, the organization subtly noted that “[I]f Asylum Division expenses are significantly reduced or funded by a Congressional appropriation, and USCIS determines the Asylum Program Fee is not needed, USCIS can pause collection of the Asylum Program Fee using the authority provided in 8 CFR 106.3 ( c ).” The costs for administering the asylum program not funded by the revenue collected from the Asylum Program Fee will continue to be funded by other fees”. Additionally, the messaging contained in USCIS’s FY 2023- 2026 Strategic Plan supports the Biden administration’s commitment to expanding humanitarian benefit eligibility ( i .e., through the establishment of TPS and the Biden administration’s historically expanded TPS), which are not funded by Congress and do not provide the agency with significant funding.
Congress, however, deliberately created USCIS as a fee- funded agency to mitigate the U. S. immigration system’s burden on U. S. taxpayers. In fact, as recently as 1996, Congress made it clear in its policy statement in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 that” self-sufficiency” has been” a fundamental principle of American immigration law since this country’s earliest immigration statutes and that it should continue to be a governing principle in the United States.” This general, but foundational, principle also guides the government’s execution of the public charge statute, INA § 212 ( a ) ( 4 ), which prohibits the admission of aliens whom the government determines are “likely at any time to become a public charge”.
5. USCIS Responded to Complaints from Small Businesses and Nonprofits and Gave Them Big Breaks on Fees
After receiving feedback from the public, USCIS appears to have responded to criticism from advocacy groups, small businesses, and nonprofit organizations who expressed concerns about rising filing costs under the Biden administration’s “ability to pay” policy. Accordingly, the Biden administration extended this “ability to pay” principle to require USCIS to also suppress fee increases for small businesses and nonprofit organizations.
For instance, I-129 filings require employers to pay a 70 % higher filing fee ( from$ 460 to$ 788 ). Small employers and nonprofits, on the other hand, will continue to pay the old rate ($ 460 ) for each I- 129 filed. Additionally, employers who file the same form for a named H-2A beneficiary must pay a 137 percent filing fee increase ( from$ 45 to$ 145 ), compared to a$ 45 increase for small employers and nonprofits. This is also true for employers filing on behalf of an alien seeking an O- 1 visa ( for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics ). Small businesses and nonprofits will only be required to pay 15 % more to file with USCIS ( from$ 460 to$ 530 ), compared to larger employers, which will see a 129 percent increase in fees ( from$ 460 to$ 1,055 ).
As I mentioned above, the new fee rule also reduced the” Asylum Program Fee” costs for small businesses and nonprofit organizations. After taking into account public criticism, USCIS will only request$ 300 from small businesses for each application for a foreign worker to help with the Biden administration’s asylum processing rule, and nothing from organizations that are looking to hire foreign workers.
6. The New Fee Rule codifies Obama era policy regarding fee waivers for some low-income beneficiaries.
The final rule also codifies the Obama- era Fee Waiver Policy criteria that USCIS may grant a request for a fee waiver if the requestor demonstrates an inability to pay based on receipt of a means- tested benefit, household income at or below 150 percent of the FPG, or extreme financial hardship into regulation. Notably, USCIS went back to its policy of allowing applicants to request fee waivers without submitting a fee waiver form with this fee rule. A request need only be made in writing to be considered and approved by an immigration officer. A new administration’s ability to change the way the agency handles waivers will be made more difficult by codifying this policy into regulation.
7. Which Immigration Benefits Are Fee-Exempted, as Expanded by the New Fee Rule
While the final rule did not expand which types of immigration benefits may be subject to a fee waiver, per se, it did significantly expand which immigration benefits may be exempt from fees all together ( i. e., offered for free for all applicants ). See pp. 59-59 for Table 5B. 6221- 6227, here, for a list of forms that will now be fee- exempt under the new fee schedule.
The distinction between a fee exemption and a fee waiver is subtle but crucial. From USCIS’s perspective, offering fee exempt benefits reduces the agency’s workload by eliminating the need for officers to adjudicate fee waiver requests. However, fee exemptions significantly lower the agency’s ability to recover the costs associated with providing these services and transfer these costs to other form types.
The distinction is also significant from an alien’s perspective if they have a genuine inability to pay. Again, applicants must show to USCIS that they are unable to pay to receive a fee waiver. For many immigration benefits, however, demonstrating an inability to pay should be considered a negative factor in considering whether an applicant is inadmissible under INA 212 ( a ) ( 4 ). That is, it may demonstrate that the alien is subject to the INA’s public charge ground for inadmissibility or deportation ( codified at sections 212( a ) and 237( a ), respectively ).
DHS, in its final 2022 public charge rule, clarified that while DHS is only” collecting initial information from applicants as related to the factors as outlined in the new 8 CFR 212.22 ( a ) and the accompanying application, which does not ask for information regarding past requests for and receipt of fee waivers… DHS may generally consider all evidence and information in the record that is relevant to making a public charge determination, including evidence that the noncitizen previously applied for and received a fee waiver”. Given the limited definition that the term “public charge” has, fee waiver receipt is unlikely to be a determining factor on its own in a public charge analysis. DHS, however, made clear that its officers will” consider all information or evidence in the record before an officer”, including fee waiver evidence.
On the other hand, if a form type is fee exempt rather than just waiverable, the outcome will be the same for the applicant: They wo n’t have to pay a fee to have the benefit request decided. But the applicant will not have to submit a fee waiver request or evidence regarding their ability to pay at any point to avoid paying a fee.
Of course, applicants and petitioners who pay fees must pay the costs of fee waivers and fee exemptions for the services that USCIS offers. In recent years, USCIS has transferred significant costs to fee- paying applicants and beneficiaries because of an overbroad fee waiver policy, and estimated foregone revenue has increased significantly. USCIS reported that it lost$ 91 million in revenue in its FY 2010/2011 fee review, lost$ 613 million in revenue in its FY 2016/17 fee review, and lost an astounding$ 1.494 billion in its FY 2019/2020 fee review. 2 In DHS’s 2023 proposed rule, DHS did not report how much revenue USCIS anticipates forgoing as a result of fee waiver projections.
8. The New Fee Rule May Encourage More People to File Their Applications Electronically
Additionally, the new fee rule will offer a$ 50 discount for applications that are submitted online as opposed to paper forms. While DHS stated that encouraging online filing is” sound policy”, the agency determined that a$ 50 discount was appropriate based on its estimated cost savings. According to USCIS, electronic filing saves the agency between$ 10 and$ 110, depending on the form type. To simplify the payment process, the final rule provided a$ 50 discount for all forms filed online with USCIS, regardless of the actual cost of adjudication. The$ 50 discount, however, is not applicable in certain circumstances, such as when the form fee is already included in a significant reduction from the cost of actual adjudication, or when USCIS is required by law to limit how much it can charge for an immigration benefit.
Transitioning to electronic filing for immigration benefit requests is a necessary step to improving agency efficiency as well as transparency in the immigration system. Expansion of USCIS’s online filing systems can save the agency significant costs associated with paper storage, transportation, and management, as well as cut down on inter-agency bureaucracy and shorten overall adjudication processing times. Equally important, collecting data electronically rather than using a paper- based system will facilitate data sharing with the public and relevant federal, state, and local government agencies.
9. The Biden Administration’s Abuse of Parole Is Partly to Blame for Rising Costs and USCIS’s Severe Financial Woes
The USCIS Ombudsman, a DHS office that is entirely independent of USCIS, made a point in its annual report to Congress about the severe drain the Biden administration’s expansion of its humanitarian docket has had on the legal immigration system in the summer of 2023. USCIS has finite resources and must divert immigration officers from existing workloads to adjudicate parole and related work authorization applications.
The Biden administration has expanded at least three existing parole programs and created at least eight new ones since 2021 to facilitate the entry of inadmissible aliens into the United States. These programs allow inadmissible aliens to remain and work in the United States for periods of at least two years, and include the Central American Minors program and parole programs specifically designed for nationals of Afghanistan, Colombia, Cuba, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Venezuela, and Ukraine.
The Biden administration’s extensive use of “programmatic” parole is unprecedented, and it goes against the parole statute’s language and history. Congress has only conferred to DHS narrow authority to parole aliens into the United States on a” case- by- case” basis for “urgent humanitarian reasons” or” significant public benefit”. Parole is not intended to be used as a supplement to immigration policy as it is currently being used to circumvent the caps or mechanisms established by Congress or to circumvent them.
10. The 2024 Rule, which was stopped by a Federal Court, and the 2020 Fee Rule, which was also susceptible of legal challenges, was also ruled out.
While the 2016 fee rule is the most recent one to have gone into effect, it is not the agency’s most recent attempt to raise fees. Following USCIS’s FY 2019/2020 review, DHS most recently updated the USCIS fee schedule during the Trump administration in 2020. At that time, DHS increased USCIS’s fees by a weighted average of 20 percent, which was slightly less than the average weighted increase imposed by the 2016 fee rule issued by the Obama administration ( 21 percent ).
The agency initially prohibited the implementation of the 2020 fee rule, which was supposed to take effect on October 2, 2020, but it was never put into effect. Rather than defend this rule, the Biden administration issued the 2024 rule to replace the 2020 fee rule entirely — albeit retaining many of the changes included in the 2020 rule.
Although it’s unknown whether this rule will be upheld in court, employers and nonprofits are likely to file lawsuits for the rule’s exaggerated fee increases. Bloomberg Law spoke with Gray Delany, executive director of the Seasonal Employment Alliance, an advocacy group that represents companies that hire temporary workers. According to Delany,” Law abiding employers should n’t be forced to bear the costs of solving a problem they did n’t create and do not benefit from,” it is the Administration’s job to secure the border and Congress ‘ job to finance it. Bloomberg Law reported that” the group is exploring’ all avenues ‘ to challenge the fee hikes, especially the asylum surcharge”.
Conclusion
To keep (or, for some, câştig ) the nation’s trust, the legal immigration system must operate effectively and with integrity. By taking an “ability to pay” approach to structuring USCIS’s fees and suppressing fee increases for immigration benefits it hopes to promote, the Biden administration is using its fee schedule as a tool to promote its own policy objectives rather than to fairly recoup costs of services. The USCIS leadership needs to concentrate its resources on initiatives that have been authorized by Congress if it wants to strengthen the legal immigration system and maintain reasonable processing times for immigration services.
End Notes
1 We determine this figure by first identifying the aliens in the survey with legitimate immigration status. We do this by first excluding immigrants who are almost certainly not without a lawful immigration status ( e. g. spouses of native- born citizens or veterans ). Based on estimates from the Center for Migration Studies ( CMS ), including its estimates of educational attainment, the remaining candidates are weighted to replicate known characteristics of the population without legal immigration status ( e .g., population size, age, gender, region, country of origin, state of residence, and length of residence in the United States ). For more discussion of our method of identifying illegal immigrants, and by extension legal immigrants, in the survey, see Steven A. Camarota, Jason Richwine, and Karen Zeigler,” The Employment Situation of Immigrants and Natives in January 2021: Unemployment and Labor Force Participation Among the Foreign- Born and Native Born”, Center for Immigration Studies, March 1, 2021.
2 84 Fed. Reg. 62280 and 62298 as of November 14, 2019.
