By Grace Vensel

On January 30, 2024, United States Citizenship and Immigration Services (USCIS) announced that it would be making significant changes to filing fees. For the first time since 2016, USCIS published the Final Rule to adjust filing fees for various nonimmigrant, immigrant, and naturalization forms. The Final Rule goes into effect on April 1, 2024. Any application or petition that is postmarked on or after this date must include the proper forms and filing fees established under the Final Rule.

Here are some key pieces of information to know before the changes apply.

What is the Final Rule?

The Final Rule was published by USCIS under the Department of Homeland Security (DHS) on January 30, 2024. The publication establishes a new fee schedule that raises the filing fees for certain benefits while eliminating fees through fee waivers and exemptions for others.

The Final Rule comes after a comprehensive fee review for the Fiscal Year 2022/2023 indicated that the current fee schedule did not completely cover USCIS's operating costs. In an FAQ about the Final Rule, USCIS stated that “[t]he fee schedule from 2016 no longer covers operational costs to timely adjudicate USCIS immigration and naturalization benefits.” Thus, the goal of the increase in filing fees under the Final Rule is to help USCIS pay for the cost of doing business and to improve efficiency in processing requests.

The new fees established by the Final Rule will increase the agency's revenue by $1.4 billion per year. Now, USCIS expects to receive around $4.42 billion in funding every year.

Why does USCIS need to increase filing fees?

Although USCIS is a federal agency, most of its funding comes from customers rather than Congress. Approximately 96% of USCIS funding comes from filing fees themselves, whereas only 4% comes from taxpayers in the form of congressional funding. Therefore, filing fees determines the amount of money that USCIS has to provide immigration services.

Additionally, fluctuations in the number of requests for immigration or naturalization benefits have led to significant backlogs. This means that it is taking a longer time for USCIS to process certain requests, and many beneficiaries have to wait a long time before receiving an approval. During the COVID-19 pandemic, immigration filings with USCIS slowed down immensely causing a 40% decrease in USCIS revenue and an organizational hiring freeze. Today, however, there is an increased demand for immigration and naturalization benefits, but USCIS lacks the resources to process the number of cases that it receives on a daily basis. To put it into perspective, USCIS adjudicated more than 40,500 requests for immigration benefits every day in 2023, and there are still significant backlogs.

Today, the U.S. faces an unprecedented demand for immigration relief. The easiest way for USCIS to meet its operational costs and decrease backlogs is to increase filing fees. The increase in revenue that comes from the higher filing fees will help USCIS hire staff to review an influx of immigration and naturalization cases, expand humanitarian programs to meet unprecedented need at the border, provide federally mandated pay raises to employees, and make other essential investments to improve efficiency.

However, USCIS has repeatedly urged Congress to provide more support. In the Final Rule News Release, USCIS writes, “Although the fee increases announced today will allow USCIS to better offset overall costs, congressional funding continues to be necessary to sustainably and fully address the increased volume of caseloads associated with recent border crossers, including by hiring additional USCIS personnel to help right-size a system that was not built to manage the numbers of cases USCIS receives.”

In the FAQ about the Final Rule, USCIS once again emphasizes the need for Congressional aid: “Fortunately, Congress provided much-needed support in fiscal year 2022, appropriating $275 million specifically to reduce current backlogs and advance our humanitarian mission. We will require continued congressional support to eliminate our current backlogs. It is our intention that the new fee rule will allow us to keep pace with incoming cases and avoid future backlogs.”

What does the Final Rule Change?

The Final Rule's most notable changes can be broken down into two categories: fee increases and fee waivers, exemptions, and incentives.

Fee Increases

USCIS has increased the filing fees for the following key nonimmigrant categories and forms:

·         H-1B:           Form I-129 filed for an H-1B petition will increase from $460 to $780. Nonprofits and small employers with 25 or fewer full-time employees will continue to pay the current $460 filing fee. Anti-fraud and ACWIA fees, where applicable, will continue to remain in place. An additional Asylum Program fee will be implemented for an additional $300 for small employers with 25 or fewer full-time employees, and $600 for large employers with more than 25 employees. In addition, USCIS has increased the H-1B cap registration fee from $10 to $215. In total, an H-1B petition could cost up to $3,380 for initial H-1B petitions filed by large employers or $2,010 for initial H-1B petitions filed by employers with 25 or fewer employees.

·         L-1:             Form I-129 filed for the L-1 category will increase from $460 to $1,385. The Anti-Fraud fee of $500 will continue to apply where applicable. Nonprofits and small employers with 25 or fewer employees will increase from $460 to $695. In addition, the Asylum Program fee must be paid by large employers in the amount of $600, and by small employers in the amount of $300. In total, an initial L-1 petition could cost up to $2,485 for large employers or $1,495 for small employers.

·         O:                The fee for I-129 O nonimmigrant workers is increasing from $460 to $1,055. Nonprofits and small employers will only increase to $530. Employers must pay the $600 or $300 Asylum Program Fee depending on their size as well. In total, an O petition could cost up to $1,655.

·         K-1:             The fee for I-129F, Petition for Alien Fiancé(e) will now be $675.

·         I-539:           The application to Extend or Change Nonimmigrant Status will be $420 if filed online, and $470 if filed by mail.

·         I-765:           The Application for Employment Authorization will be $470 if filed online, and $520 if filed by mail.

USCIS has also increased the filing fees for the following immigrant and naturalization forms:

·         I-140:            The Immigrant Petition for Alien Worker filing fee is only increasing from $700 to $715. However, employers sponsoring an employee must also pay a $600 or $300 Asylum Program fee depending on the employer's size.

·         I-130:             Petition for Alien Relative filing fee is increasing to $625 for forms filed online, and $675 for forms filed by mail.

·         I-485:             The Application to Adjust Status filing fee is increasing to $1,440. In certain cases where the beneficiary is under the age of 14, the filing fee will be $950. It is important to note that I-485s filed with the new fee changes will no longer include Form I-765 and I-131 filings. Separate filing fees will be required if submitting those forms along with the Form I-485.

·         N-400:           The Application for Naturalization filing fee will now be $710 if filing online, and $760 if filing by mail. 

Fee Waivers, Exemptions, and Incentives

Although the Final Rule is increasing filing fees for many forms, it also codifies several fee waivers and exemptions. An individual will be eligible for a fee waiver based on:

·         Their inability to pay,

·         If they receive means-tested public benefits,

·         If they have an income that is at or below 150% of the Federal Poverty Guidelines, or

·         If they can demonstrate a financial hardship.

The Final Rule also states that there are several fee exemptions for humanitarian-related forms due to the likelihood that individuals in this category will qualify for fee waivers if requested. This includes all forms for:

·         T nonimmigrant status for victims of human trafficking,

·         U nonimmigrant status for victims of criminal activity,

·         Violence Against Women Act (VAWA) petitioners,

·         Abused spouses and children seeking benefits under NARCARA,

·         Conditional permanent residents filing Form I-751 based on battery or extreme cruelty,

·         Persons admitted or paroled as refugees applying for a travel document,

·         Certain adoption-related applications or requests, etc.

Finally, USCIS is incentivizing electronic filing of forms by offering a $50 discount for all forms filed online.

Conclusion

Overall, the Final Rule establishes an increase in filing fees for many forms, as well as fee waivers and exemptions for others. These changes are a reflection of the changes that we are seeing in immigration throughout the U.S. The increase in filing fees is likely to be extremely burdensome for U.S. employers and families seeking to sponsor foreign nationals to come to the U.S. However, USCIS finds that the Final Rule is necessary to process the large numbers of petitions, applications, and requests that it receives every day.  

If you have any questions or concerns about the Final Rule and new fees, please contact the Law Offices of James D. Eiss to schedule a consultation!