On April 1, 2024, a final rule by the U.S. Department of Homeland Security (“DHS”) is set to go into effect to adjust the fees charged by U.S. Citizenship and Immigration Services (“USCIS”) for certain immigration and naturalization benefits, pending a decision on a lawsuit filed on March 19, 2024 that challenges the new fee rule and requests a preliminary injunction on its implementation or enforcement.[1]
Should the final rule be allowed to proceed, it will implement the first fee increases for several immigration matters since 2016. A summary of major changes includes marginal increases or reductions to fees for naturalization and adoption applications and petitions; increased fees for employment-based immigration requests, which are mitigated by special discounts for nonprofits and small employers; codification of existing fee waiver eligibility for low-income and vulnerable populations; expanded fee exemptions for certain beneficiaries and humanitarian classifications; and a reduced fee option for certain individuals applying for naturalization. The rule also raises the H-1B Electronic Registration Fee for each beneficiary from $10 to $215 and introduces a new $600 “Asylum Program Fee” for certain petitioning employers to fund the costs of processing asylum cases, which have increased in volume over the last several years. (From the beginning of fiscal year 2021 through the end of fiscal year 2023,[2] USCIS received over 756,000 asylum applications, up from less than 300,000 in the three years prior.[3])
As reported in Forbes, under the new rule, “employers will pay 70% more for beneficiaries on H-1B petitions, 201% more for employees on L-1 petitions, and 129% more for individuals on O-1 petitions.”[4]
The new rule, published on January 31, 2024 in the U.S. Federal Register, intends to help USCIS “fully recover costs and maintain adequate service,” following a comprehensive biennial fee review by the agency that determined the 2016 fee schedule was inadequate against “increased costs of federal salaries and inflation costs for other goods and services.”[5] In its summary of costs of benefits in the Federal Register, DHS states that the new rule will be mutually beneficial for itself and applicant/petitioners, providing the former with “reduced administrative burdens and fee processing errors, increased efficiency in the adjudicative process, and the ability to better assess the cost of providing services, which allows for better aligned fees in future regulations” and the latter with “reduced fee processing errors, increased efficiency in the adjudicative process, the simplification of the fee payment process for some forms, elimination of the $30 returned check fee, and for many applicants, limited fee increases and additional fee exemptions to reduce fee burdens.”[6]
Likewise, in its “Frequently Asked Questions on the USCIS Fee Rule” webpage, USCIS states that it needs “higher fees to cover the cost of doing business and better avoid the accumulation of future backlogs” and adds that “unlike many other federal agencies” it is almost entirely fee funded, with approximately 96% of its funding coming from filing fees rather than “from taxpayers in the form of congressional appropriations.”[7] In this same webpage, USCIS nonetheless identifies congressional support as necessary to “eliminate ... current backlogs” and “fully address the increased volume of caseloads associated with recent border crossers, including by hiring additional USCIS personnel to help right-size a system that was not built to manage the number of cases USCIS receives.”
The predominantly fee-funded nature of USCIS comes into focus with respect to government shutdowns—the most recent of which was averted on March 23—and how they impact the agency and other federal entities involved in the immigration system. Due to its reliance on fees to fund most of its operations, USCIS has largely—though not entirely—continued functioning as usual during government shutdowns. The exceptions to this are programs funded by congressional appropriations, such as E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers. However, recent legislation or policy has helped to ostensibly minimize the impact of government shutdowns on some of these congressionally funded programs. For example, the EB-5 Immigrant Investor Regional Center Program should not be impacted by a shutdown as it was authorized through September 30, 2027.[8] In the event E-Verify is temporarily unavailable due to a government shutdown, USCIS permits employers to continue using the new alternate document review process for remote Form I-9 document verification introduced in August 2023.[9]
However, USCIS is not the only federal agency involved in immigration and naturalization matters that is implicated in a government shutdown. Its sister agencies within DHS—Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”)—would mostly operate uninterrupted due to the “essential” nature of inspection and law enforcement personnel. Moreover, ICE’s Student and Exchange Visitor Program (SEVP)—which is critical to nonimmigrant visas for students and trainees under the F-1, M-1, and J-1 classifications—will be unaffected since SEVP is fee-funded. However, while ports of entry (POE) will remain open and CBP will continue processing travelers accordingly, the processing of applications filed at the border—such as by “Trade NAFTA” (TN) professionals from Canada—may be impacted depending on the particular POE.
In the event of a government shutdown, The U.S. Department of State (“DOS”) would generally be able to continue processing visa applications due to consular operations being fee funded. However, specific posts may limit the number or type of visas that are processed if there are insufficient fees to support their consular activities.
The biggest impact of a government shutdown would concern petitions or applications requiring a labor certification (approval) by the U.S. Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”). These include temporary foreign workers such as H-1B, H-2B, and E-3 nonimmigrants and permanent workers under certain Employment-Based (EB) categories. OFLC would cease processing all new and pending applications and would be unavailable to respond to any inquiries, while its web-based systems for submitting labor certification applications, such as the Foreign Labor Application Gateway (“FLAG”) and Permanent Labor Certification Program (“PERM), would be inaccessible.
Gunster’s Immigration Practice Group is actively monitoring these developments to provide our clients with accurate and timely guidance as additional information becomes available.
[1] https://nfap.com/wp-content/uploads/2024/03/1-Filed-Complaint_Moody-v.-Mayorkas-DCO.pdf
[2] www.uscis.gov/sites/default/files/document/forms/quarterly_all_forms_fy2023_q4.pdf.
[3] www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf.
[4] www.forbes.com/sites/stuartanderson/2024/03/20/immigration-lawsuit-filed-to-block-uscis-fee-rule/?sh=13fac6d07449
[5] www.federalregister.gov/documents/2024/01/31/2024-01427/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration.
[6] www.federalregister.gov/d/2024-01427/p-171.
[7] www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscis-fee-rule
[8] www.congress.gov/bill/117th-congress/house-bill/2471/text
[9] www.uscis.gov/i-9-central/form-i-9-related-news/new-form-i-9-now-includes-alternative-procedure-for-e-verify-employers-to-remotely-examine-employee
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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