By Stuart Anderson, Senior Contributor
The Trump administration will increase fees on businesses, new citizens and international students who need work authorization. The new fee rule from U.S. Citizenship and Immigration Services (USCIS) is the latest Trump administration action to restrict immigration to the United States and make life more difficult for businesses seeking skilled workers and individuals who want to be American citizens.
On July 31, 2020, the Department of Homeland Security (DHS) – USCIS is part of DHS – released to the public the final version of a fee rule first proposed in November 2019. The fees will go into effect on October 2, 2020.
“The significant fee increases on employment-based immigrant and nonimmigrant petitions are nothing more than new taxes on businesses that must be paid to meet their company’s workforce needs,” said Jon Baselice, executive director for immigration policy at the U.S. Chamber of Commerce, in an interview. “This final rule suffers from many of the same critical flaws included in the agency’s original proposal, and given the level of concern on the part of many companies with respect to those issues the fight over this rule is far from over.”
Below is a summary of the key fee changes:
H-1B and L-1 Visas: The fee for L visa petitions will increase by 75%, rising from $460 to $805. The fee for an H-1B petition will rise by 21%, from $460 to $555.
USCIS will impose much higher fees on companies with more than 50 employees that have at least 50% of their workforce in H-1B and L-1 status. USCIS states in the final rule it has reinterpreted the law to impose an additional $4,000 fee not just on initial H-1B petitions and a $4,500 fee on initial L-1 petitions, as is the current practice laid out in the statute (Public Law 114-113). USCIS also will impose the fee for extensions when the fraud prevention and detection fee is not collected, which means, in practice, the fee will be required whenever an employee’s status is extended.
“The change in how DHS interprets the applicability of the Public Law 114-113 fee is unreasonable and runs contrary to clear statutory language indicating the 50/50 fees should apply only to petition filings where the fraud prevention and detection fee is also required,” said Vic Goel, managing partner of Goel & Anderson, in an interview. “Curiously, the agency dismisses these concerns, but fails to state a valid substantive basis for why DHS now disagrees with its own prior guidance.” (See here for more on the legislative history.)
Other High-Skilled Employment Visas: USCIS has increased several high-skilled visa petitions by more than 50%. Petitions for O visas (extraordinary ability/achievement) would rise by 53%, from $460 to $705. Fees would increase by 51%, from $460 to $695, for petitions for the TN (NAFTA professionals), E (treaty traders and investors), P (athletes/entertainers), Q (cultural exchange) and R (religious workers) categories, as well as for H-3 visas for training. USCIS has changed the current I-129 form, now used for multiple categories, and renamed the forms based on the visa type.
Premium Processing: USCIS proposes to change premium processing. The cost will remain the same. However, USCIS will now process a case within 15 business days, rather than the current 15 calendar days. That means it will take up to 4 days longer for employers to receive decisions when paying the additional $1,440 premium processing fee.
H-2A and H-2B Visas: The current fee for H-2A (seasonal agricultural) and H-2B (seasonal nonagricultural) petitions is $460. USCIS proposes to raise the fee for H-2A to $850 and H-2B to $715 for petitions with named workers and limiting an application to 25 workers. Costs for employers will likely rise substantially, note business organizations, since H-2A and H-2B petitions can now list 100 or more workers.
Increasing Costs for International Students, Adjustment of Status: An application for employment authorization (I-765) for international students on Optional Practical Training (OPT) and others (non-DACA) will rise 34% from $410 to $550. DHS stated it “declines to make changes in this final rule in response to the comment” that the “proposal would further disincentivize foreign students from studying in the United States.”
While nominally the cost of filing forms I-485 (for adjustment of status) decreased by $10, the American Immigration Lawyers Association (AILA) pointed out in comments to the proposed fee rule that applicants would see a substantial cost increase because USCIS would now charge separate fees for three related forms: I-485, I-765 and I-131 (for a travel document).
Increased Costs to Become a U.S. Citizen and Apply for Asylum: USCIS would increase the cost of the application (N-400) to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated). USCIS would also become one of the few countries in the world to charge an individual for applying for asylum ($50) and raise the cost for an asylum applicant to apply for an employment authorization document (EAD) from the current zero to $490, one of many policy changes to discourage potential asylum applicants. DHS commented, “DHS does not believe that the EAD fee is unduly burdensome for asylum seekers.”
USCIS Fiscal Mess: The final rule does not dwell on what critics believe is historic mismanagement of USCIS over the past three and half years, with the agency going from a substantial surplus to a deficit so severe USCIS has requested a $1.2 billion bailout from Congress.
USCIS Reaped Billions From Slow Processing: USCIS is in financial trouble even though between FY 2014 and FY 2019, to avoid slow processing by the agency employers paid $2.39 billion in premium processing fees, according to USCIS data obtained via the Freedom of Information Act (FOIA). Jonathan Wasden, an attorney with Wasden Banias, filed the FOIA and shared the data. “If you don’t upgrade to premium, the agency will take up to a year to make a decision at current rates,” said Wasden in an interview. “If you upgrade, you may get a decision in 15 days. It’s almost like the agency is intentionally slow rolling the adjudication of these petitions as a way of extorting money from companies for premium processing.”
Reasons for the USCIS Financial Mess: Rep. Zoe Lofgren, chair of the House Judiciary’s Subcommittee on Immigration and Citizenship, held a July 29, 2020, oversight hearing that helped explain how the Trump administration caused the financial problems at USCIS through its policy choices on immigration.
“Under the Trump Administration, USCIS has issued a flurry of policies that make its case adjudications more complicated, which reduces the agency’s efficiency and requires more staff to complete fewer cases,” testified Doug Rand, a founder of Boundless Immigration and a senior fellow at the Federation of American Scientists. “There are dozens if not hundreds of such policies.”
Rand listed the three “most consequential” policies as “mandatory interviews for employment-based green card applicants (some 122,000 per year), for family members of refugees and asylees applying for a green card (some 46,000 per year), and for recently married couples who have already obtained a green card (over 166,000 per year); the elimination of the ‘prior deference’ policy that now requires USCIS officers to scrutinize hundreds of thousands of skilled worker renewal applications each year, even if nothing material has changed since the initial adjudication; and the ‘public charge rule.’”
Sharvari Dalal-Dheini of AILA noted those policies in her testimony and added others, including the “Unprecedented issuance of duplicative and irrelevant requests for evidence and improper denials.” The RFE (Requests for Evidence) rate reached 60% for H-1B petitions in the first quarter of FY 2019. “This is not ‘inside’ information, it is written into the policies and procedures that have erected an invisible wall over the past few years that has purposefully made it more complicated, longer, and harder to get an immigration benefit,” said Dalal-Dheini.
On the day of the USCIS oversight hearing, the House Judiciary Committee also held a hearing at which members of both parties criticized leading technology companies for their market power. However, U.S. consumers can use a social network other than Facebook, buy goods from Walmart rather than Amazon and purchase a phone from a company other than Apple. If U.S. employers want to sponsor workers or foreign-born individuals want to become American citizens, they have no choice but to deal with U.S. Citizenship and Immigration Services, an entity that exercises its monopoly power every day of the year.