In recent years, if you have filed a petition for an H-1B professional worker or an application for your foreign national fiancé, you may have noticed more delays, more requests for evidence, and even more denials of cases that would have been approvable, or had actually been approved, in years past.

The U.S. Citizenship and Immigration Services has implemented inefficient policies that have resulted in crisis-level case processing delays and backlogs. Now the agency is proposing higher fees without adequately addressing the inefficiencies.

Summary of the proposed fee increase rule

The U.S. Department of Homeland Security published proposed regulations in November. The DHS proposes to increase immigration filing fees by approximately 20 percent or more across the board, but does not offer any evidence regarding how the increase would affect current case processing delays and inconsistent standards. If implemented, it appears that American businesses and families would face increased fees in exchange for decreased services. The DHS originally set a 30-day comment period ending December 16, but recently extended it through December 30.

Impact on temporary visas

Form I-129 is used for almost all non-immigrant worker (temporary) classifications, such as H-1B, L-1, TN, E, and O-1. The current filing fee for all classifications is $460. Under the proposed rule, the filing fee would vary depending on the classification applied for. The proposal would also require new supplemental forms. For an L-1 classification, which has the largest increase, the DHS would create a new form, and the fee would increase to $815. The H-1B fee would increase to $560, the E/TN to $705, and the O-1 to $715.

In addition to fee increases for existing forms, the proposed rule also increases the time allowed for premium processing. On December 2, the fee for premium processing increased from $1,410 to $1,440. Under the proposed regulations, the time for premium processing will increase from 15 calendar days to 15 business days.

Impact on green cards and citizenship applications

Today, applicants who file for an adjustment of status, the last step of the green card process, pay a one-time filing fee of $1,225. This fee covers the applications for initial employment authorization documents and advance parole, and renewals while the adjustment case is pending with the agency. The proposal would require separate new fees for an EAD of $490 and AP of $585, bringing the cost to file an adjustment application with ancillary benefits to $2,195.

The steepest filing fee increase is for a citizenship application (Form N-400). That fee, currently $640, would increase 83 percent, to $1,170.

Other proposed changes

In an unprecedented move, the DHS has also proposed to charge a fee to applicants for political asylum. Only three other nations charge fees for similar types of application. The agency is also proposing a new $275 fee for requests to renew Deferred Action for Childhood Arrivals, which DACA recipients would pay in addition to the increased $490 filing fee for their work authorizations.

Finally, the DHS proposes to transfer more than $200 million in USCIS applicant fees to U.S. Immigration and Customs Enforcement. It appears that these funds would be used to investigate and prosecute fraud under the immigration laws. At this time, it is not clear whether the proposed transfer would be lawful.

What can you do?

The DHS proposal will not take effect until it clears the federal review process. This process is likely to take several months or more because many of the agency’s proposals are novel and have drawn more than the usual number of public comments. If you or your organization wishes to comment on the proposal, you may do so by going to this link or by contacting your Constangy attorney.

Though the fee increases in the final rule may be lower than the proposed increases, employers should consider budgeting for significantly higher government filing fees in most employment-based categories in the coming year.