New Year, New Fees?  USCIS Resolves to Increase Filing Fees

On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM), proposing significant filing fee increases for employment-based, family-based, and humanitarian immigration applications, as well as other changes to agency policy. The proposed filing fee increases affect temporary visa, work permit, and green card applications filed by or on behalf of foreign nationals and their family members. USCIS is accepting public comments on the proposed changes through March 6, 2023.

According to USCIS, the new fees will allow USCIS to recoup operating costs, reestablish and maintain timely case processing, and prevent future backlogs. Specifically, the proposed rule includes the following changes of note:

• Cases filed via premium processing will no longer receive a decision in 15 calendar days. Instead, USCIS will provide itself additional time to make those decisions. The new processing time will be 15 business days.
• The H-1B cap registration fee will increase from the nominal fee of $10 to the more significant fee of $215.
• The Form I-129, Petition for Nonimmigrant Worker—the form used most frequently by employers for various types of employment-based visa sponsorship—will no longer carry a single fee. Instead, the fee will vary based on the visa classification an employer is seeking for one of their employees.
• USCIS will impose an additional $600 fee on all Form I-129 and Form I-140 petitions, which are the employment-based immigration forms used to sponsor foreign nationals for temporary and permanent employment. This fee is above and beyond the filing fee increases associated with these forms and will be used to fund the USCIS asylum program.
• Different fees will be imposed for certain applications filed online versus on paper, with larger increases if the relevant application is on paper.
• Green card applications, also known as “adjustment of status” applications (Form I-485), will require three separate filing fees when the applicant is seeking work and travel authorization. This eliminates the established practice of submitting one filing fee covering the cost of the green card, work, and travel authorization applications.

How Significant Are the Fee Increases?

They are sizeable. As noted above, USCIS proposes increasing the H-1B cap registration fee by 2,050%, surprising many in the immigration community because, when implemented, the $10 registration fee was perceived to not discourage employers from sponsoring foreign nationals for H-1B specialty occupation visa status.

Other notable fee increases for some of the most common petitions filed by employers or the employees they support include:

_{¹ Form I-765 refers to an Application for an Employment Authorization Document (EAD).
² Form I-131 refers to an Application for Travel Document, one type of which is an Advance Parole (AP).}

Who is Impacted by the Proposed Fee Changes?

The proposed fee increases will impact employers sponsoring foreign talent for work visas and green cards, U.S. citizen and permanent residents sponsoring foreign-born relatives, and those applying for humanitarian benefits. If enacted, the proposed fee increases may affect employers’ willingness to sponsor foreign national talent and/or affect which fees employers will or will not cover, thereby shifting costs onto foreign nationals and their family members, if permissible by law.

Indeed, the proposed rule includes an additional provision requiring employers who file employment-based, temporary work visa petitions (Form I-129) and immigrant visa petitions (Form I-140) to file those applications with an additional $600 fee to fund the USCIS asylum program. To be clear, this fee is on top of the filing fee increases associated with each of these employment-based immigration forms, as detailed in the chart above—imposing an even greater burden on employers who sponsor foreign nationals for critical positions. By contrast, humanitarian-based immigration processes that require payment of fees will see filing fees decreased up to 54% in some instances. 

USCIS Seeks to Encourage Online Filing

USCIS proposes to charge lower fees for online filings. I-765 applications for employment authorization will increase to $555 for applications filed online and increase to $650 for applications filed on paper, a 59% increase from the current fee of $410. Interestingly, I-131 applications for advance parole are not included in the forms eligible for online filing.

Regarding common family-based green card applications, USCIS proposes an increase in the I-130 Immediate Relative Petition from $535 to $820 for paper filings, but only an increase to $710 if the petition is filed online.

Premium Processing Delays

As indicated above, USCIS proposes defining premium processing timeframes to only include business days. Business days would be defined as days that the “Federal Government is open for business, which do not include weekends, federally observed holidays, or days on which Federal Government offices are closed.” This change is notable and will slow the ability for employers to onboard visa-sponsored new hires, who generally prefer to onboard only once they have secured approval for their employer-sponsored petitions.

The impact of this potential change would result in additional administrative burden for employers or foreign nationals wishing to take advantage of this expedited service, including reorganizing the petitioning process to file petitions further in advance of start dates.

Highlights of Impacts on Employers

Below we provide some observations on the impact of the proposed fee increases on commonly used employment-based visa filings that employers submit on behalf of their foreign talent.

H-1B Cap Fees Uncertain for 2023

Each year in March, USCIS permits employers to register foreign nationals they wish to sponsor for H-1B status in an annual lottery. This is because Congress has authorized 65,000 new H-1Bs each year, with an additional 20,000 reserved for those who possess a U.S. Master’s degree, and demand for H-1B visas typically far exceeds the annual H-1B allotment.

As it is highly unlikely that USICS’s rulemaking process would conclude before March 2023, we expect that the H-1B cap registration fee will remain $10 for this fiscal year and increase to $215 in 2024.

However, H-1B petitions for those selected in the annual lottery may be impacted by the proposed rule this year, depending on if comments are reviewed and the final rule is published and implemented in the Spring. Accordingly, employers should be mindful when budgeting for H-1B cap submissions, as the I-129 filing fee may increase from $460 to $780 during the April to June filing window.

Pursuing Consular L-1s May Help Circumvent Steep Fee Increases

USCIS is proposing raising the filing fee for L-1 petitions filed on Form I-129 by 201%—from $460 to $1,385. This is one of the largest percentage increases under the proposed rule.

Considering this large fee increase, employers may consider directing their employees to travel to a U.S. Consulate to apply for their L-1 visas in person. This requires employers to secure a corporate approval from USCIS, known as a Blanket L approval, that establishes the relationship between their entities across the globe and the robustness of their multinational operations. 

Once approved, employees of a company that possesses a Blanket L approval may circumvent a USCIS filing (and its steep fees) and apply for an L-1 visa at a U.S. Consulate abroad. This option is becoming increasingly attractive because the Department of State, the agency responsible for visa adjudication outside of the United States, is making progress with improving consular appointment availability, diversifying processing options, and expanding access to third-country processing. These enhancements have led to greater opportunities for employers to move their employees through the visa process and transition to the United States promptly.

Employers also may consider this option when seeking to extend an employee’s L-1 status. With that said, employers should consider the cost-benefit analysis of the costs associated with travel and visa application-related visas, as well as adjudication trends at USCIS and at particular consular posts, when reevaluating their corporate policies.

Employer Cost Sharing with Visa-Sponsored Employees

While the new rule does not alter what fees employers may or may not legally pass onto their employees to cover, the significant increase in fees will result in many employers reevaluating what immigration benefit applications they pay for, for both their employees and their family members.

Take the above example where an employer files an L-1 extension on behalf of an employee with USCIS.  Should the employer also cover the increased costs of the L-2 extension application for any dependent family members? Should the employer pass the legal and filing fees onto the foreign national?

Further, while there are constraints on what fees an employer may seek to request reimbursement for from an H-1B worker, the significant USCIS filing fee increase may result in employers no longer covering the $2,500 premium processing fee for an H-1B petition to be decided in the new 15-business-day timeframe. These options should be reviewed carefully to align with corporate budgetary constraints, organizational culture, and how the company may wish to leverage greater financial support for foreign nationals. For example, employers may consider providing additional support for employees with backgrounds in in-demand-Science, Technology, Engineering, and Math backgrounds to gain a competitive advantage over their competitors in terms of attracting talent.

Employer Cost Sharing for Adjustment of Status Applications

Employers are also permitted to share the costs associated with green card applications with their employees. Despite the ability to share costs, many employers find it in their interest to cover the current $1,225 filing fee for their employees and most family members. It is a benefit that engenders loyalty from and helps retain foreign talent. At present, that filing fee includes supplemental work and travel authorizations (Forms I-765 and I-131, respectively).

Under the proposed rule, there will be a range of filing fee amounts for green card applications—ranging from $1,540 for a stand-alone green card application up to $2,820 for a green card application that includes supplemental work and travel authorization. While the proposed rule does not change an employer’s ability to share the costs associated with a green card application, the significant increase of fees likely requires many employers to reevaluate whether they seek contribution or reimbursement from their employees for these filing fees.

On a positive note, there is no proposed fee for filing the I-485 Supplement J, which generally must be submitted to USCIS when employees move from one employer to another—after their green card application has been pending for more than six months.

Conclusion

We expect USCIS to receive a significant volume of comments to the proposed fee increases. In light of the stated need for the increases to sustain and improve benefit application adjudications, it is highly uncertain if the agency will reduce the proposed fees, after responding to stakeholder’s feedback. Moreover, it is also unclear whether litigation challenging the proposed rule will arise, even if only to delay the implementation of the rule. 

If you have questions about how to voice your organization’s concerns relating to the fee increases or evaluate your current corporate policies in order to prepare for these significant changes, please reach out to the Quarles & Brady Immigration and Mobility Team at:

• Timothy D'Arduini: (202) 780-2641 / timothy.darduini@quarles.com
• Lynn O’Brien: (202) 372-9530 / lynn.obrien@quarles.com
• Ryan Patterson: (239) 434-4925 / ryan.patterson2@quarles.com