On April 1, 2024, US Citizenship and Immigration Services (USCIS) implemented new costs for many common immigration filings, resulting in a fee increase of 100% to 200% for certain benefit requests.
PERCEPTION'S PRICE TAG
Under the new plan, USCIS has opted to move away from the traditional "beneficiary pays" principle (where the filer bears the cost for their own application) and toward a system based on the perceived "ability-to-pay" principle. This shift means that a heavier financial burden is placed on those that USCIS views as having more robust economic resources (such as employers and investors) to subsidize or eliminate the costs for those perceived to have less ability to pay fees.
This approach results in certain payers funding programs from which they receive no direct benefit. The agency acknowledged that this may seem arbitrary—and affirmed its broad discretion to set fees and shift costs. Higher fees will primarily fund immigration programs that the Biden Administration has prioritized, including a broad range of humanitarian programs, naturalization applications, and adoption filings.
One such new fee is the $600 "Asylum Program Fee" paid by employment-based requests for immigration benefits. The proceeds will be primarily used to fund the implementation of a new process to adjudicate asylum applications submitted at the border, an estimated financial burden of $425 million annually. Originally assigned to the Department of Justice, the Executive Branch shifted this responsibility to USCIS in 2023.
Historically, approximately 97% of USCIS' budget was funded by the filing fees collected. However, due to USCIS financial shortfalls, Congress has stepped in and appropriated more than $550 million to USCIS over the past three years. These appropriations, in combination with the new fees to be collected, are intended to keep pace with forecasted workloads. However, USCIS has indicated that resolving its existing backlogs—and managing the surge in cases from border crossings—will necessitate additional support from Congress.
PRICEY PETITIONS: THE INCREASED EXPENSE OF H-1B AND L-1 FEES
To retain the best global talent and secure work authorization for new employees, many employers leverage the H-1B for specialty occupation workers and the L-1 for intracompnay transferees. H-1B fees escalated by 70%, while L-1 fees skyrocketed by more than 200%. In addition, both categories now require the new $600 surcharge to support the asylum program, as mentioned above.
The significant rise in H-1B fees and L-1 fees directly increases the cost burden on organizations, particularly those in tech and consulting sectors that rely heavily on the H-1B visas and L-1 visas to recruit skilled workers from abroad. These changes may necessitate strategic adjustments in how companies manage their workforce and competitive positioning.
UNRAVELING THE WEB OF FEES
The schedule of these new fees speaks to their complexity. The charges are now located on a sprawling 45-page USCIS fee schedule; the length of the document is a testament to the granularity of the fee structure. The task of determining the cost of a benefit request may be challenging due to the nuanced distinction between different forms, categories, and the circumstances under which various fees apply. For example, the new schedule establishes multiple tiers of fees depending upon such aspects as the size of an employer, whether the petitioner is a nonprofit organization, the method of submission (electronically or via hard copy), and whether the matter qualifies for an exemption.
Such complexity not only poses a significant administrative hurdle, but also introduces the risk of submitting an incorrect fee, which will result in an application's rejection.
LEGAL BATTLE OVER FEES
In a recent lawsuit, plaintiffs requested the grant of a preliminary injunction to prevent the fee increases from taking effect. Although the judge denied their prayer for injunctive relief, the plaintiffs intend to continue litigation.
KEY TAKEAWAYS
It remains to be seen whether the USCIS fee increases will actually result in improved case processing and efficiency, as pledged by USCIS. Reduced fees for high-priority immigration programs can make benefits more accessible to a broader population, but may also cause an unanticipated increase in the volume and complexity of submissions, which will require additional USCIS resources to vet and adjudicate.
The introduction of higher fees—particularly those that disproportionally affect entities deemed by USCIS to have greater financial resources—necessitates a proactive approach to financial planning and application strategy. Employers must assess these changes on operational costs and explore strategies to mitigate the impact, without compromising their ability to attract and retain global talent.
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