U.S. Citizenship and Immigration Services (USCIS) will implement a new fee schedule on October 2, 2020 to account for increased costs in adjudicating immigration applications and petitions. The new fee schedule also ushers in new versions of certain immigration forms, including those for work visa categories, as well as a longer timeframe for premium processing.

Fees for USCIS petitions and applications increased most recently in December 2016 and 2019, and they are slated for another increase in October 2020. On August 3, 2020, USCIS published a Final Rule materially altering the USCIS fee schedule, by a weighted average increase of 20%. USCIS states that it is implementing this fee increase in an effort to recover operational costs and to increase the revenue of this user-fee funded agency. The fee increase, if implemented, may forestall USCIS employee furloughs that had been proposed in Spring 2020, alleviating this important concern for nearly thousands of employees.

The following are answers to some frequently asked questions about the new fee schedule and related processing matters based on the latest fee regulation and guidance issued by USCIS.

When Does the Final Rule Apply?

This final rule is effective October 2, 2020. Petitions and applications postmarked on or after October 2, 2020, are subject to the Final Rule and must include payment of the new, correct fees established by the Final Rule.

What Does the Final Rule Do?

The Final Rule increases the fees for some commonly-used forms, such as the I-129, unbundles the I-485/I-131/I-765 forms that are used for adjustment of status, removes certain fee exemptions, changes fee waiver requirements, and institutes a first-ever fee for the asylum application. The United States is now just one of a few countries in the world to impose a fee on people fleeing dangerous situations such as war or political persecution. (Other countries imposing such a fee include Iran, Fiji, and Australia.)

Selected Benefits/Fees That Are Affected

As this table shows, under the new rule, an employer would file a visa-specific I-129 form with its new accompanying fee, instead of the current Form I-129 fee of $460 (which is uniformly submitted with a visa classification supplement for the particular visa type of interest).

Another notable change under the Final Rule is the unbundling of the adjustment of status applications and related benefits. Under current rules, for adjustment of status applications, the initial I-765 and I-131 were included without an additional cost as part of the I-485 fee, commonly referred to as “bundling.” This meant that the adjustment of a status application package cost only $1,140 (plus the $85 biometrics fee). After this Final Rule goes into effect, this same application package will cost $2,270 (no separate biometrics fee). Each of these applications has its own cost; the new I-485 fee is $1,130, the I-765 fee is $550, and the I-131 fee is $590. In a change from current practice, applicants under the age of 14 years who are filing a concurrent adjustment application with a parent must also submit the I-485 fee in the full amount ($1,130).

While the Rule increases the premium processing timeline from 15 calendar days to 15 federal government business days, it does not increase the premium processing fee (which was recently increased on December 2, 2019 to $1,440, from $1,410).

The rule also announced new versions for the Form I-129 and I-765, among others. Unfortunately, as of the writing of this blog, USCIS has not made the new forms available online for review and preparation.

Will Rule Go Into Effect on October 2, 2020?

It remains to be seen whether the fee increases and other changes in this Final Rule will go into effect as planned on October 2, 2020. Two lawsuits have been filed against the Final Rule, one in the U.S. District Court for the Northern District of California and another in the U.S. District Court for the District of Columbia. The suit pending in California is scheduled for a preliminary injunction hearing on September 25th. If the court grants plaintiff’s request for an injunction, USCIS may be prevented from implementing the new fee structure as planned.

Given the recent outcome of litigation in the immigration arena, we are hopeful that this Final Rule will be enjoined as well. Recent litigation involving actions taken by Acting Secretary of the Department of Homeland Security (“DHS”) Chad Wolf and/or Acting Director of the United States Citizenship and Immigration Services (“USCIS”) Ken Cuccinelli have been successful in part because of arguments that their appointments were unlawful because they did not comply with the rules of succession set forth in the Federal Vacancies Reform Act of 1998 as confirmed by the Government Accountability Office (“GAO”) in August. Given that this rule was promulgated under their tenure, this is one ground upon which the courts could stop implementation of the rule.

Guidance

Families, individuals, and employers wishing to benefit from the current USCIS fee structure and existing forms should work with their immigration counsel to file immigration petitions by October 1. It is key to also ensure the filing package is complete so that the mailroom does not reject the package, resulting in a re-filing under the new, generally higher, fee structure.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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