Federal District Court Blocks Enforcement of DHS Fee Rule

Judge Jeffrey S. White of the Federal District Court for the Northern District of California has enjoined the Department of Homeland Security (DHS) from enforcing its new fee rule, which was set to take on October 2, 2020.  Judge White’s ruling prohibits DHS from enforcing the rule while a lawsuit challenging it is litigated in court.  Judge White held that the plaintiffs are likely to succeed in their challenge to the fee rule on the grounds that Acting Homeland Security Secretary Chad Wolf was improperly appointed to his position and therefore was not authorized to issue the rule. 

The fee rule seeks to significantly increase costs for most employment-based petitioners and applicants and subject them to new forms for H-1B, L-1 and other nonimmigrant petition types as well as for applications related to the adjustment of status process. Though the new rule was set to take effect in a few days, the final versions of the required new forms had not yet been released to the public. 

The fee rule also seeks to increase the premium processing timeline to almost three weeks, from 15 calendar days, imposes new and/or additional fees on asylum and DACA applicants, and requires employers with a high proportion of H-1B and L-1 employees to make additional border security fee payments when petitioning for these employees.

The case is Immigrant Legal Resource Center, et al., v. Chad F. Wolf, et al. DHS is expected to appeal the decision. 

What this means for employers and foreign nationals

Until further notice, petitioners and applicants will not be subject to the higher fees or forms outlined in the regulation, nor will they be subject to the extended premium processing timeline.