DHS Fee Rule Under Federal Review – Steep Increases Anticipated for Employment-Based Petitioners
A final DHS fee regulation that would increase the filing fees for many immigration benefit filings has been submitted to the Office of Management and Budget (OMB) for review.
The new fee regulation is expected to increase and create separate fees for H-1B, L-1, and other nonimmigrant case types, increase the H-1B cap registration fee, impose an additional fee on Forms I-129 and I-140, increase premium processing timelines, and unbundle adjustment of status and ancillary benefit fees, among other measures.
The final regulation is slated to be published in April 2024, but could be finalized earlier.
The issue
The Department of Homeland Security (DHS) has submitted for federal review a final regulation that is expected to increase filing costs for many immigration benefit petitioners and applicants, and particularly steeply for employment-based petitioners. The final regulation is now under review at the Office of Management and Budget (OMB), bringing the regulation closer to publication and implementation.
According to the agency’s most recent regulatory agenda, publication of the final regulation in the Federal Register is scheduled for April 2024, but the date of publication will depend on the speed of the federal review.
DHS accepted public comments on the proposed version of this fee rule from early January 2023 to early March 2023. The specific contents of the final regulation are not yet known and will remain so until the rule is released for publication in the Federal Register. However, the proposed rule provides some indication of the changes likely to be included in the final version.
Background
USCIS last adjusted its fee schedule on December 23, 2016, with a weighted average fee increase of 21%. Under the Trump administration in 2020, the agency issued a fee rule containing significant changes to the USCIS fee structure, which was enjoined by a federal court and never implemented. In January 2023, USCIS issued a proposed fee schedule that would increase filing costs markedly for employment-based petitioners, among other changes. That proposal has now been finalized and submitted for the last step in regulatory review.
A closer look
Under DHS’s proposed rule, which was published in January 2023, the agency proposed fee increases and other changes, as follows.
Proposed fee changes for nonimmigrant visa classifications on Form I-129: USCIS proposed imposing different fees for each visa classification sought on the Form I-129 nonimmigrant worker petition, replacing the uniform $460 Form I-129 filing fee across all classifications. The H-1B I-129 filing fee would increase to $780, from $460, a 70% increase. The L-1 petition fee would be $1,385, up from $460 – a 201% increase. E and TN petitions would see a $121% increase to $1,015, from $460. The Form I-129 fee change would affect all classifications sought through the form, including H-1B, H-2A/B, E, L-1, O, P, and TN.
Proposed higher fees for H-1B cap registration: USCIS proposed significantly increasing the H-1B cap registration fee for cap-subject H-1B petitions – as proposed, the fee would increase to $215 per registration, from $10 under the current fee schedule, a 2050% increase.
It is not yet known if the H-1B cap registration fee change will be in place for the opening of the FY 2025 H-1B cap season, beginning in March 2024.
Proposed new fee for employment-based visa petitions on Forms I-129 and I-140: USCIS proposed adding a new $600 “Asylum Program Fee” to be paid by all petitioners filing Form I-129 nonimmigrant petitions and Form I-140 immigrant visa petitions. According to USCIS, this additional fee would mitigate the scope of fee increases for individual applicants and petitioners. The fee would also be intended to be used to fund part of the costs of administering the asylum program. Employers filing a Form I-140 immigrant visa petition would see only a 2% increase in the base filing fee under the proposed rule – to $715, up from $700 under the current fee schedule. However, the new Asylum Program Fee would further increase the overall cost of all Forms I-140.
Proposed increase in premium processing timeline: As it did in a now-vacated 2020 fee rule, USCIS proposed extending the premium processing adjudication periods by measuring the required adjudicatory timeline in business days rather than calendar days, a change that will effectively prolong premium processing adjudications.
Proposed new process and fees for adjustment of status applications and related benefits: DHS proposed requiring separate fees for Form I-485 adjustment of status applications and its ancillary benefits of employment authorization (Form I-765) and advance parole (I-131) when the applications are filed concurrently, eliminating the current “bundling” under one fee. The agency indicated that it would implement this change in phases, however, and those who filed their applications prior to the change would be unaffected. Notably, the proposal established only one Form I-485 filing fee, regardless of the applicant’s age, including for children under age 14 filing a Form I-485 concurrently with a parent.
Proposed steep fee increases for EB-5: Filing fees for certain EB-5 immigrant petitions would also see significant increases under the new rule. As proposed, the Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be raised to $11,160, from $3,675 – a 204% increase. The Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee would be raised to $9,525, from $3,835 for most – a 148% increase for those that require biometrics.
Other proposed changes: DHS proposed incorporating biometrics fees into the main immigration benefit fees for nearly all case types where such a fee is required. USCIS would, however, retain a separate biometrics fee for Temporary Protected Status (TPS) applications (Forms I-821), set at $30.
In addition, DHS proposed introducing lower fees for applicants who choose to file online for the limited number of forms where this is permissible.
Next steps
After OMB clearance of the final rule, it will be published in the Federal Register, which will include an implementation timeframe. It is possible that implementation could take place over several months or more.
It is not yet clear whether the rule will be finalized in time for the FY 2025 H-1B cap season, beginning in March 2024, but employers should prepare for significant increases in the filing fees for many immigration benefit requests.
Separately, effective February 26, 2024, USCIS is increasing the premium processing fees for I-140 immigrant worker petitions, most Form I-129 nonimmigrant worker petitions, Form I-539 applications, and F-1 Form I-765 applications.