On January 3, 2023, the US Citizenship and Immigration Services (”USCIS”) released its long-anticipated updated fee schedule that proposes dramatic increases to the fees employers pay to employ foreign nationals using nonimmigrant visas, and access the permanent residency process. 

If enacted, the greatest changes employers will face are visa classification-specific fees. Under the current fee regulation, USCIS charges a fee based on the specific form the employer uses. Employers use the same form to request a variety of different visas. Since visa petitions take dramatically different amounts of time to adjudicate, under the new fee regulations, the visa classification and not the form controls the amount of the fee.  

The new proposed fee schedule:

Please note that the new fees do not include the $500 H-1B & L-1 fraud fee, the $750/$1,500 H-1B ACWIA fee, the $2,500 premium processing fee, or any other Congressionally mandated fees. 

Unlike other government agencies, USCIS does not rely on taxpayer funds appropriated by Congress to fund its operations. It is a self-funded agency. Ninety-seven percent of its operational funds come from fees collected from employers and immigrants. USCIS states that it needs to raise its fees because its fee revenues do not adequately cover its operational costs. While USCIS normally adjusts its fees every three years, it has operated under the same fee structure since 2016.  

The second justification for USCIS’ extreme fee increase is a proposal to fund humanitarian programs from fees levied on employers seeking to hire foreign workers. Unlike its regular operations, USCIS’ humanitarian programs such as adjudication of asylum applications are funded with tax dollars. USCIS wishes to further distance itself from Congress’ purse strings by assessing employers $600 per petition to fund humanitarian immigration programs. USCIS justifies taxing employers stating that employers expect to generate a profit from the labor of the foreign national worker. USCIS claims that this fee is relatively small compared to the benefit the employer will gain from the foreign worker’s labor.  

USICS’ previous attempt to raise its fees in 2020 was struck down by the courts. It is unclear if this fee schedule will suffer a similar fate. USCIS is accepting comments on this proposed regulation until March 3. Expect a final regulation that may or may not reflect the proposed regulation (and perhaps litigation like in 2020) this summer.

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