USCIS Final Fee Rule Clears Federal Review

A final DHS fee regulation that would increase the filing fees for many USCIS immigration benefit filings has cleared the Office of Management and Budget (OMB) federal review process, putting the regulation closer to implementation. The new fee regulation is expected to increase the H-1B cap registration fee; increase and create separate fees for H-1B, L-1, and other nonimmigrant case types; impose an additional fee on Forms I-129 and I-140 to fund humanitarian programs; increase premium processing timelines; and unbundle adjustment of status and ancillary benefit fees, among other measures. The next step for the final regulation is publication in the Federal Register with implementation details. Publication is expected in the coming days.

The issue

A Department of Homeland Security (DHS) final regulation that is expected to increase USCIS filing fees for many immigration benefit petitioners and applicants, and particularly steeply for employment-based petitioners, has been cleared by the Office of Management and Budget (OMB), bringing the regulation a step closer to publication and implementation.

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, it is anticipated that a higher H-1B cap registration fee will be in place for the upcoming FY 2025 H-1B cap filing season, among other changes included in the proposed rule that was published in January 2023, and detailed further below.

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 completed the last step in regulatory review.

A closer look

DHS accepted public comments on the proposed version of this fee rule from early January 2023 to early March 2023. Under DHS’s proposed rule, which provides some indication of the changes likely to be included in the final version, the agency proposed fee increases and other changes, as follows.

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 anticipated that 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. However, the details will not be known until the final rule is published in the Federal Register.

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 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.

What’s next

In the coming days, DHS is expected to publish the final rule in the Federal Register, with details on fees and other changes and an implementation timeframe. It is possible that implementation could take place over several months or more.

It is expected that the rule will be finalized in time for the FY 2025 H-1B cap season, beginning in March 2024. Employers should prepare for significant increases in cap registration fees, as well as filing fees for many other immigration benefit requests.

Separately, effective February 26, 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.

Additionally, next month, USCIS plans to launch online organizational accounts for H-1B filings – including for FY 2025 H-1B cap registrations – and make Form I-129 H-1B petitions and any associated Form I-907 premium processing requests available for online filing.