The U.S. Citizenship and Immigration Services is poised to implement new filing fees on October 2, under regulations published in the Federal Register on August 3. However, two lawsuits were filed in federal court about a month ago challenging the increases, one in the District of Columbia and the other in the Northern District of California. The lawsuits seek injunctive relief to prevent the rule from going into effect and monetary damages.

Both lawsuits allege (1) that the Department of Homeland Security did not have the authority to implement the fee increase because the Acting Secretaries who proposed and issued the regulations were appointed without constitutional or statutory authority; (2) that the regulations are arbitrary and capricious, and unenforceable under the Administrative Procedure Act; and (3) that the regulations violate the due process and equal protection rights of low-income individuals by effectively denying them, because of the high fees, access to needed immigration benefits.

It is uncertain whether a court will issue an injunction in advance of October 2, so here is a summary of the changes.

Fee increase

The new rule significantly increases fees on most applications by a weighted average increase of 20 percent, although some filing fees have been reduced. The USCIS has said that the additional fees are needed to help recover its operational costs and avoid a projected deficit of $1 billion.

The new fee schedule, which is tailored primarily to employer or employer-related filings and naturalization, is available here.

Impact on temporary visa petitions

Form I-129 is used for almost all non-immigrant worker (temporary) classifications, such as H-1B, L-1, TN, E, and O-1. The current Form I-129 requires the same fee of $460 regardless of the visa classification requested. In the regulations, the USCIS would impose new fees for each nonimmigrant visa classification, with increases across the board:

• H-1 petition: $555 (20 percent increase)

• L petition: $805 (75 percent increase)

• O petition: $705 (53 percent increase)

• TN petitions: $695 (51 percent increase)

The regulations also impose additional fees for employers with a high proportion of H-1B and L-1 employees. Employers with more than 50 employees, and with more than 50 percent of employees in H-1B or L-1 status, currently pay an additional fee of $4,000 for each initial and change-of-employer H-1B petition, and $4,500 for each initial L-1 petition. Under the regulations, this additional fee would apply to all H-1B and L-1 petitions filed by employers that meet the “50-employee and 50 percent” test, whether the petitions are for new employment or for an extension of stay.

Premium processing deadline

The USCIS must make a decision on a premium processing petition within 15 calendar days of the date of filing. Under the new regulations, the existing premium processing fee of $1,440 will stay the same, but the timeframe for a decision will be extended to 15 business days, which increases the time from the current two weeks to three weeks.

“Green card” applications

The regulations marginally decrease the filing fee for Form I-485 adjustment of status applications from $1,140 to $1,130. However, applicants will no longer be able to pay a single I-485 filing fee for the Form I-765 Employment Authorization Document application, the Form I-131 Advance Parole Document, and the Form I-485 when all three are filed together. Instead, if and when the regulations go into effect, applicants will be required to pay separate filing fees for the EAD and AP applications filed with the form I-485 adjustment application, which will increase the filing fee by 85 percent, to $2,270 for an initial filing.

Currently, there is a one-time filing fee of $1,225 ($1,140 basis fee and $85 for biometrics) or $740 (children under the age of 14 filing with their parent) for adjustment of status, the last step of the green card process. This fee covers the applications for initial filing of the Form I-765 Employment Authorization Document application and Form I-131 Advance Parole travel authorization document, as well as any renewals while the underlying application is pending with the USCIS. Under the regulations, the same $1,130 fee would apply to all applicants, regardless of age. Therefore, the reduced Form I-485 filing fee for children under the age of 14 filing with their parent is removed.

New forms

In conjunction with the fee increases, the USCIS will update some of its forms, and will post the new and revised forms online 30 days before the regulations go into effect. The updated forms have not yet been released, but they will include the following:

• Form I-129, Petition for a Nonimmigrant Worker

• Form I-600/I-600A, Supplement 3, Request for Action on Approved Form I-600/I-600A

• Form I-765, Application for Employment Authorization

• Form I-912, Request for Fee Waiver

There will be a grace period of up to 60 days in which either the current or the new version of the forms may be used, as long as payment of the new fees accompanies the forms.

What to do

If your application will be affected by the increase in filing fees, you should consider filing early to avoid the fee increase. We will continue to monitor the pending litigation. However, it is likely that any petition or application postmarked on or after October 2 will require the new filing fees.