The Department of Homeland Security (DHS) has put forth a Proposed Rule in January 2023 (“Proposed Rule”), suggesting fee increases and other modifications. Under this proposal, the U.S. Citizenship and Immigration Services (USCIS) increase filing costs for many immigration benefit petitioners and applicants, resulting in a substantial 40 percent overall weighted average increase. The steepest increment is anticipated for employment-based petitioners, especially EB-5 immigration petitioners.

As of now, the Proposed Rule is undergoing final federal regulation review at the Office of Management and Budget (OMB) with a scheduled final action date of 04/2024. This brings the regulation closer to publication and subsequent implementation. The specific details of the final regulation remain undisclosed and will only be revealed upon its release for publication in the Federal Register.

Notably, the Proposed Rule outlines significant increases in filing fees for certain EB-5 immigrant petitions, as illustrated in the table below:

The USCIS fee increase proposal is motivated by various factors, including addressing funding gaps, covering escalating operational expenses, improving service quality and efficiency, and expediting processing times. 

The last adjustment to the fee schedule occurred on December 23, 2016, with a weighted average increase of 21 percent. The DHS finalized a fee schedule adjustment on August 3, 2020, by a weighted average of 20 percent; however, this rule was preliminarily enjoined, and the proposed fees were not implemented. 

USCIS conducted biennial financial reviews for FY2022/2023 and determined that the current fee levels are insufficient to cover the full cost of the agency’s operation. In the Proposed Rule, DHS aims to replace the 2020 fee rule entirely by revising the regulatory changes codified by the enjoined 2020 fee rule, while retaining several aspects of the prior rule.

It is crucial to note that the USCIS fee increase process may potentially face legal challenges once it takes effect. This anticipation arises from the recognition that standing will be established at that point. It is understood that legal challenges might emerge to address procedural shortcomings, emphasizing the need to be prepared for potential litigation following the implementation of the fee increase.

We will provide updates as appropriate.

Sources:

www.reginfo.gov

www.federalregister.gov