United States: USCIS Fee Hikes Effective April 1 – 4 Key Takeaways For Employers

On January 31, 2024, U.S. Citizenship and Immigration Services (USCIS) published a Final Rule to announce new filing fees for immigration and naturalization benefit requests. The rule is set to take effect on April 1, 2024.

As a predominantly fee-funded agency, USCIS justifies the fee increase – the first since December 2016 – as essential for covering operating costs fully and expediting application processing. Despite the fee increase, USCIS acknowledges that congressional funding will still be necessary to help manage the surge in their caseload linked to recent border crossings. This funding includes hiring more personnel to optimize a system unprepared for the current case volumes. Lengthy processing times have posed a significant challenge in recent years. While the efforts of USCIS to improve processing times and customer service are certainly welcome, they come at a cost.

What are the key changes to the final rule?

Some of the critical changes that are of particular concern to employers include:

• An assignment of fees based on the nonimmigrant classification was requested, as well as a substantial increase in fees for employment-based filings. Fees for Form I-129, which is the form used to request work authorization for multiple nonimmigrant classifications, will now be assigned based on the nonimmigrant classification requested. Previously, the base filing fee was the same for all nonimmigrant categories. Now, for example, an H-1B petition will have a different filing fee compared to an L-1 petition. Examples of increases include a 70% price hike on H-1B petitions ($460 to $780), a 201% increase for L-1 filings ($460 to $1,385), and a 129% increase on O-1 petitions ($460 to $1,055). The H-1B registration fee will increase from $10 to $215, which represents a 2,050% increase. Notably, the H-1B registration fee will not be effective during the upcoming H-1B registration period, which is set to occur from March 6, 2024, to March 22, 2024. The total fee chart is available on the USCIS website, but a condensed version highlighting certain forms relevant to employers is provided below.
• New fees. A new and controversial element of the fee rule is the addition of an Asylum Program Fee, obliging employers filing Forms I-129 or I-140 to pay $600 to cover some asylum processing costs. This fee is reduced to $300 for small employers (25 full-time employees or less) and waived for non-profit entities.
• Premium processing changes. Premium processing will now be calculated based on business days instead of calendar days, thus extending premium processing timelines. Notably, the new rule follows an earlier announcement from USCIS that it will adjust its premium processing fee for inflation, raising the cost from $2,500 to $2,805 as of February 26, 2024.
• Unbundling of adjustment of status fees. Separate filing fees for Form I-485 (adjustment of status), Form I-131 (travel document), and Form I-765 (employment authorization) will now be required, whether or not they are filed together. Previously, applicants who filed for adjustment of status on Form I-485 after July 30, 2007, were not required to pay separate fees for Forms I-765 and I-131. Individuals may now wish to consider whether they need work and travel authorization during the pendency of their adjustment of status application. For instance, children who previously filed for work authorization for the purpose of obtaining a social security number but never intended to work may choose not to file the I-765. Or, an individual with a valid H-1B or L-1 visa may decide not to file for advance parole because of their ongoing valid nonimmigrant status.

The new rule also includes the following changes:

• Incorporating biometric services costs into the main benefit fee and removing the separate biometric services fee in most cases (Temporary Protected Status and the filings accepted on behalf of the Executive Office for Immigration Review are exceptions, where the rule proposes a separate biometric services fee of $30 instead of the current $85);
• Eliminating the $30 returned check fee;
• Limiting the number of named beneficiaries on certain petitions for nonimmigrant workers to 25.

What is the new Asylum Program Fee?

The Asylum Program Fee requires employers filing Forms I-129 or I-140 to pay a $600 fee to cover some of the costs associated with asylum processing. This fee is reduced to $300 for small employers, meaning those employers with 25 or fewer full-time employees, and is waived entirely for non-profit entities. Employers could have to pay this fee multiple times on behalf of the same employee. For instance, if the employer files Form I-129 and also Form I-140 on behalf of an employee, the $600 fee would need to be submitted with both petitions.

So, for an employer with more than 25 employees wishing to sponsor an initial H-1B petition on behalf of a foreign worker, the new fees will be: $10 (registration fee – to be increased to $210 in 2025); $780 (base filing fee); $600 (asylum program fee); $500 (anti-fraud fee); $1,500 (ACWIA fee); and $2,805 (optional premium processing fee). Total filing fees could exceed $6,000 for an H-1B petition heading into this year's H-1B cap filing season.

How, if at all, have fees been reduced, and who benefits?

While employment-based filings see the most significant increases, USCIS does note that the final rule considered the impact upon stakeholders in several ways. For instance, the rule contains restrictions on fee increases for individual filers, particularly for naturalization and adoption applications. The rule also includes special discounts for non-profits and small employers, maintains fee waiver eligibility for low-income individuals, expands fee exemptions for specific beneficiaries, and introduces a $50 discount for online filing of forms where available.

The following are examples of fee reductions included in the new rule:

• Non-profits and small employers (25 or fewer full-time equivalent employees) filing Form I-129 will pay a 50% discounted fee (or the same fee as under the previous fee rule if 50% of the standard new fee would be less than the previous fee);
• There will be a $50 discount for forms filed online with USCIS, except in limited circumstances, such as when the form fee is already provided at a substantial discount, or USCIS is prohibited by law from charging a full cost recovery level fee;
• Naturalization applicants filing Form N-400 who have incomes between 150% and 400% of the Federal Poverty Guidelines will pay half the full fee. Previous regulations provided a half-price fee for applicants whose incomes were between 150% and 200% of the Federal Poverty Guidelines;
• Individuals seeking adjustment of status will pay half the standard fee for Form I-765, Application for Employment Authorization if they paid the full fee for a concurrently filed or pending adjustment application; and
• There will be no separate biometric services fee for most applicants.

The fee chart released by USCIS and the excerpt provided below breaks down the fee variances for non-profits and small employers when compared to filers, who are not eligible for fee reductions. For example, for an H-1B, a non-profit or small employer will be required to pay $460, while the fee for other employers will increase to $780. For an O-1, a non-profit or small employer will be required to pay $530, whereas the fee for other employers will increase to $1,055. This amount is exclusive of the $600 Asylum Program Fee, which, of course, is reduced for small employers and waived for non-profits.

Will new forms be released tied to the implementation of the Final Rule?

Concurrent with the rule, USCIS will release updated editions of certain forms. While there will be a grace period for some form types, there will notably be no grace period for Forms I-129 (applicable to employment-based nonimmigrant petitions) and I-140 (applicable to most employment-based immigrant petitions). Therefore, employers must use these new form versions for petitions filed as of April 1, 2024.

Conclusion

While fee increases were ultimately inevitable and expected and are, to an extent, necessary to remedy agency backlogs, the impact of these increases on employers is substantial. The rule will pose significant costs to employers who rely on the skills and talents of foreign workers to sustain, build, and grow their businesses. As fees rise, employers will have to account for these additional costs as they recruit top talent.

Fee Chart – Select Employment-Based Petitions and Common Family-Based Forms

*Note that certain H-1B petitions also require a $1,500 (or $750 if 25 or fewer employees) ACWIA fee.

**Note that initial H-1B and L-1 petitions require a $500 anti-fraud fee.

***Public Law 114-113 requires certain petitioners to pay an additional fee of $4,000 for certain H‑1B petitions and to pay an additional fee of $4,500 for certain L-1A and L-1B petitions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.