USCIS to Implement Significant Fee Changes on October 2, 2020

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Seyfarth Synopsis:  U.S. employers, applicants for immigration benefits, and other stakeholders should be aware of United States Citizenship and Immigration Services (USCIS) application fee increases and form changes scheduled to take effect on October 2, 2020.

On July 31, 2020, USCIS announced changes to its fee structure and processes, including a weighted average fee increase of 20%, extended Premium Processing timeline, and form changes for several petitions, including nonimmigrant worker petitions and employment authorization applications, among others.  These changes, which follow a review period of nearly nine months, will be required for any filings postmarked on or after October 2, 2020.  USCIS will publish the new forms 30 days prior to the rule taking effect, by September 2, 2020.

In addition to the fee and form changes, the final rule will expand the Premium Processing timeline from 15 calendar days to 15 business days, thereby increasing processing to approximately three weeks.  Of note, in its final rule, USCIS has reserved the authority to automatically increase the Premium Process fee annually, foregoing the standard notice and comment rulemaking procedure, provided the fee does not exceed the guidance proposed by the Consumer Price Index.

Further, in an effort to encourage electronic filings of certain applications available online, including requests to renew a permanent resident card (e.g. green card) and naturalization applications, USCIS will offer a $10 filing fee reduction for applications submitted online.

The recently finalized rule will have a significant impact on employment-based nonimmigrant visa categories as detailed below:

Employment-Based Nonimmigrant Filings

The final rule separates fees for each visa classification currently filed on Form I-129, Petition for Nonimmigrant Worker, with a disproportionate effect on some visa categories, such as the L-1 visa classification, which will increase by 75%.  To facilitate these changes, USCIS will publish new forms for the following visa categories:  CW-1, E, TN, H-1B, H-1B1, H-2A, and H-2B.  USCIS will provide a grace period of up to 60 days during which time both the previous and new versions of the updated forms will be accepted, provided that the new fees accompany the form.

Additionally, USCIS will expand security fees for employers who employ 50 or more employees, if more than 50% of those employees hold H-1B, L-1A, or L-1B visa status.  Presently, the $4,000 and $4,500 fees for H-1B and L-1 petitions, respectively, are required only for initial filings and change of employer requests.  The new fee structure will require payment of these fees for extension petitions as well.  Employers should note that amended petitions that do not request an extension of stay will not be subject to this additional fee.

The notable new fees for nonimmigrant employment based petitions are summarized below:

Petition Type:  E-1, E-2 and TN
Current Fee:  $460
New Fee:  $695
Amount Change:  $235
Percent Change:  51%

Petition Type:  H-1B
Current Fee:  $460
New Fee:  $555
Amount Change:  $95
Percent Change:  21%

Petition Type:  H-2A (Named Beneficiaries)
Current Fee:  $460
New Fee:  $850
Amount Change:  $390
Percent Change:  85%

Petition Type:  H2B (Named Beneficiaries)
Current Fee:  $460
New Fee:  $715
Amount Change:  $255
Percent Change:  55%

Petition Type:  L-1
Current Fee:  $460
New Fee:  $805
Amount Change:  $345
Percent Change:  75%

Petition Type:  O-1
Current Fee:  $460
New Fee:  $705
Amount Change:  $245
Percent Change:  53%

Petition Type:  H2A (Unnamed Beneficiaries)
Current Fee:  $460
New Fee:  $415
Amount Change:  -$45
Percent Change:  -10%

Petition Type:  H2B (Unnamed Beneficiaries)
Current Fee:  $460
New Fee:  $385
Amount Change:  -$75
Percent Change:  -16%

Click here for a comprehesive table of the new fee arrangements.

The final rule will also impact Immigrant Visa processes for all category types, including employment-based petitions.

Immigrant Visa and Adjustment of Status Applications

While most fees for employment-based processes will increase, the fees for employment-based immigrant visa petitions will decrease by 21% from $700 to $555. 

Through the final rule, USCIS will end its longstanding practice of bundling the fees for interim benefits.  Currently, the Adjustment of Status (or “green card”) application fee is $1,225, which includes the biometrics fee, Employment Authorization Document (EAD), and Advanced Parole (AP) applications, as well as subsequent renewals of the EAD and AP while the Adjustment of Status remains pending.  Under the new scheme, the total fee of an adjustment of status application package more than doubles to $2,270, and applicants will be required to pay fees of $550 and $590, for EAD and AP renewal applications, respectively.  It remains unclear whether those who filed an adjustment application prior to October 2, 2020 must pay the new fees for the EAD and AP renewal applications.

Presently, children under the age of 14 benefit from a reduced adjustment of status fee of $750, if they apply with a parent.  This benefit will cease to exist under the new rule, requiring these young applicants to pay the new fee of $1,130. 

Another notable change includes the following:  

Biometric Fee Changes

USCIS will no longer require the current $85 fee for certain filings, including Applications to Adjust Status, Naturalization Applications, and Form I-539, Applications to Change or Extend Status.

Under the new fee structure taking effect in October, fees will increase by a weighted average of 20%, which is on par with its last fee schedule update of 21% in December 2016.  As a predominantly fee-funded government agency, USCIS claims that absent the fee increase, the agency would experience a $1 billion annual funding deficiency.

To combat stated budget shortfalls, the agency announced its plan to furlough more than 13,000 employees earlier this year, but has since postponed that plan until the end of August, likely due to a recent uptick in filings after basing projections on the low volume of filings received at the beginning of the COVID-19 pandemic.  If USCIS moves forward with the proposed furloughs, employers and applicants may experience a significant increase in case processing times.  Whether the planned fee increases will eliminate the need for furloughs and keep processing times on track remains to be seen.

Seyfarth will continue to monitor situation and issue subsequent updates should further changes occur. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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