Introduction

The US Citizenship and Immigration Services (USCIS) has proposed a rule to increase the filing fees for most of its applications and petitions for immigration benefits. The proposed rule will adjust the USCIS fee schedule by a weighted average increase of 21%. The increase in filing fees is needed in order to ensure that the USCIS has the resources to:

  • provide adequate and timely service to the public with respect to its review of applications and petitions;
  • detect immigration fraud; and
  • perform proper security checks of foreign nationals applying for immigration benefits.

While there are several provisions within the proposed rule that affect non-employment-based individuals, this article addresses only those provisions affecting US employers.

Key provisions

Some of the provisions within the proposed rule that US employers should be aware are as follows.

Form I-129 (Petition for a Non-immigrant Worker)

Form I-129 is used to sponsor professionals to come to the United States. Form I-129 will be divided into several different forms, depending on the type of immigration benefit for which the foreign national is being sponsored by the employer. Different filing fees will apply, rather than one standard filing fee for all immigration benefit categories. The USCIS has indicated that charging more for certain immigration benefit categories is appropriate because this will help to fund the administrative site visit and verification programme, since only certain immigration benefit categories are subject to site visits. In addition, higher filing fees are required for certain immigration benefit categories because of the increased time that it often takes USCIS examiners to adjudicate these.

The following are the proposed Form I-129 form types and the corresponding filing fees (note, the filing fee for Form I-129 is currently $460).

Form I-129H (Petition for a Non-immigrant Worker or H-1B1 Free Trade Non-immigrant Worker)

The filing fee for Form I-129H will increase to $560. Notably, the proposed rule does not alter the $500 fraud prevention and detection fee or the $1,500 (or $750 if employing 25 or fewer workers) American Competitiveness and Workforce Improvement Act 1998 fee that certain H-1B and H-1B1 petitioners must pay. However, the proposed rule does have a provision that affects the $4,000 PL 114-113 filing fee that certain employers must pay, because these employers employ 50 or more workers, with 50% of the workers in H-1B or L-1 status (see below for the proposed changes to the $4,000 PL 114-113 filing fee).

Form I-129L (Petition for a Non-immigrant Worker: L Classification)

The filing fee for Form I-129L will increase to $815. Notably, the proposed rule does not alter the $500 fraud prevention and detection fee that certain petitioners must pay. However, the proposed rule does have a provision that affects the $4,500 PL 114-113 filing fee that certain employers must pay, because these employers employ 50 or more workers, with 50% of these workers in H-1B or L-1 status (see below for the proposed changes to the $4,500 PL 114-113 filing fee).

Form I-129O (Petition for a Non-immigrant Worker: O Classification)

The filing fee for Form I-129O will increase to $715.

Form I-129E&TN (Application for a Non-immigrant Worker: E and TN Classification)

The filing fee for Form I-129E&TN will increase to $705.

Form I-129MISC (Petition for a Non-immigrant Worker: H-3, P, Q or R Classification)

The filing fee for Form I-129MISC will increase to $705.

$4,000 and $4,500 PL 114-113 filing fees

Employers that are heavy users of the H-1B and L-1 programmes are subject to additional filing fees besides the Form I-129 filing fee and fraud fee described above. H-1B and L-1 petitioners that employ 50 or more workers, with 50% of these workers in H-1B and L-1 status, must pay an additional filing fee of $4,000 when filing an H-1B petition or an additional filing fee of $4,500 when filing an L-1 petition. At present, the additional $4,000 (H-1B) or $4,500 (L-1) filing fees are paid only when an employer files an initial H-1B or L-1 petition with the government, similar to the one-time $500 fraud fee that must be paid for each initial H-1B or L-1 petition. However, the proposed rule would require employers that are heavy users of the H-1B and L-1 programmes to pay the $4,000 (H-1B) or $4,500 (L-1) PL 114-113 filing fees for all extension petition filings. If this rule is implemented, this will result in a considerable cost to US employers that are heavy users of the H-1B and L-1 programmes. Based on the language in the proposed rule, it appears that the USCIS has taken the position that the language in the law, which imposes the $4,000 and $4,500 filing fees, was not interpreted properly in the past, and that based on the USCIS' new interpretation of the language contained within the law imposing these fees, the $4,000 and $4,500 filing fees should be required to be paid by employers when filing extension petitions for H-1B and L-1 workers. Given that the USCIS has for years imposed the $4,000 (H-1B) and $4,500 (L-1) filing fees only for initial H-1B and L-1 petition filings, respectively, it seems unusual for the government to now change its interpretation. If the provision in the proposed rule stands – imposing the $4,000 (H-1B) and $4,500 (L-1) filing fees for not only initial petition filings, but also extension petition filings – it is likely that it will be challenged through litigation.

USCIS premium processing service

The premium processing service provided by the USCIS for an additional filing fee may change. Thus, instead of processing a petition within 15 calendar days of payment of the premium processing fee, the USCIS will process a petition within 15 business days. As a result, US employers should be prepared that premium processing service may take the USCIS longer to adjudicate in future. Besides changing the timeframe in which a premium process case will be processed by the USCIS, the proposed rule also indicates that the premium processing fee may increase in future due to inflation. Notably, the USCIS filing fee for premium processing service – which took effect on 2 December 2019 – is currently $1,440.

Biometric processing fee

The biometric processing fee for certain immigration benefit categories will be eliminated and included in the underlying benefit request fee. This change will relieve the USCIS' administrative burden and make it easier for the public to calculate filing fees.

Charge for Form I-765 (Application for Employment Authorisation) and Form I-131 (Application for Travel Document) processing

Separate fees will be charged to process Form I-485, Form I-765 and Form I-131 applications. This change is being made as a result of the backlog in priority dates for many different preference categories. These backlogs require applicants to renew their employment authorisation document and advance parole multiple times before receiving their green cards. However, the USCIS does not have the resources to process these employment authorisation documents and advance parole applications in future at no charge. US employers or foreign national workers will now need to budget for these additional filing fees.

Green card application fee

All Form I-485 applicants, including children, will pay one filing fee of $1,120.

Comment

Some of the provisions in the proposed rule which increase filing fees suggest that US employers or the public may pay the same or more money, but receive less service from the USCIS (eg, changing 15 calendar days to business days for premium processing service and charging children the same filing fee to process Form I-485 applications as adults). It is possible that some provisions, if adopted, may be litigated (eg, requiring H-1B and L-1 employers to pay the $4,000 or $4,500 PL 113-114 fee for initial petition filings as well as extension petition filings). Comments on the proposed rule are due by 31 December 2019 and it is anticipated that the rule to increase USCIS filing fees may take effect in early 2020, around the time of the implementation of the H-1B registration system for the upcoming H-1B cap season. As a result, US employers should plan and budget accordingly, monitor the movement of the rule through the rulemaking process and watch out for any possible litigation.

For further information on this topic please contact Matthew C Morse at Fakhoury Global Immigration USA, PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Global Immigration USA, PC website can be accessed at www.employmentimmigration.com.