The U.S. Citizenship and Immigration Services (USCIS) will increase its filing fees on April 1, 2024, for its various applications and petitions used by the public to apply for U.S. immigration benefits. In addition, there are some new fees that USCIS will impose. One of the new fees that sponsoring employers are required to pay is a $600.00 Asylum Program Fee.1 (Note: The Asylum Program Fee is only $300.00 if the sponsoring employer employs twenty-five or fewer employees. The Asylum Program Fee for non-profit petitioners is $0.00.) This fee is required to be paid by U.S. employers that file a Petition for a Nonimmigrant Worker (Form I-129) or an Immigrant Petition for an Alien Worker (Form I-140). While it is clear that a sponsoring U.S. employer may not have a beneficiary pay the Asylum Program Fee in an H-1B context, because U.S. Department of Labor (DOL) regulations explicitly prohibit a beneficiary from paying any costs and fees associated with the H-1B petition, it is not as completely clear as to whether the beneficiary may pay the Asylum Program Fee on behalf of the sponsoring U.S. employer in a Form I-140 context. Here are some indicators that a beneficiary may pay the Asylum Program Fee in Form I-140 context on behalf of the sponsoring U.S. employer:

  1. New filing fee rule does not explicitly forbid a Form I-140 beneficiary from paying the Asylum Program Fee: Unlike the DOL's H-1B Labor Condition Application (LCA) regulations, or DOL's PERM labor certification regulations, which explicitly forbid a beneficiary from paying any costs and fees associated with the processing of an H-1B petition or PERM labor application, the final filing fee rule does not explicitly prohibit the beneficiary of a Form I-140 from paying the Asylum Program Fee on behalf of the sponsoring U.S. employer. In addition, USCIS regulations that govern the Form I-140 petition process also do not explicitly forbid a beneficiary from paying the costs and fees. In addition, USCIS regulations that govern the Form I-140 petition process do not explicitly forbid a beneficiary from paying the costs and fees. The fact that the final fee rule does not explicitly forbid a beneficiary from paying the Asylum Program Fee in a Form I-140 context suggests that the beneficiary may pay on behalf of the sponsoring U.S. employer.
  2. USCIS has not answered the question as to whether a beneficiary may pay the Asylum Program Fee in a Form I-140 context to date, even when it has had the opportunity to answer this question: The USCIS Ombudsman's Office held a webinar on February 29, 2024, to discuss the new filing fees that will take effect on April 1, 2024. During this webinar, USCIS did not answer the question as to whether a beneficiary may pay the Asylum Program Fee on behalf of a sponsoring U.S. employer. The American Immigration Lawyers' Association (AILA) has raised this question with USCIS, as well; and USCIS has not responded with an answer as of this writing. In addition, at AILA's Spring Conference held between March 21, 2024 and March 22, 2024, USCIS representatives had the opportunity to answer this question, but, again, chose not to. The fact this question has been posed to USCIS on several occasions, and USCIS has been silent suggests USCIS would prefer sponsoring employers pay the Asylum Program Fee. However, USCIS is not in a position to forbit a beneficiary from paying the Asylum Program Fee on behalf of a sponsoring U.S. employer in a Form I-140 context, because there is no authority that explicitly prohibits a beneficiary from doing this.
  3. USCIS has indicated that a self-petitioner of an Employment-Based, First Preference (EB-1) Extraordinary Ability Alien Form I-140 or a self-petitioner in an Employment-Based, Second Preference (EB-2 (National Interest Waiver) Form I-140 is required to pay the Asylum Program Fee: USCIS has expressly indicated that the Asylum Program Fee is required to be paid by self-petitioners. Self-petitioners are considered to be both the petitioner and beneficiary. Since the USCIS requires the Asylum Program Fee to be paid in both an EB-1 (Extraordinary Ability Alien) and EB-2 NIW (Exceptional Alien – National Interest Waiver) Form I-140 context when there is a self-petitioner, this would suggest that a beneficiary in any type of Form I-140 context may pay the Asylum Program Fee on behalf of the petitioner.
  4. USCIS has issued guidance in the past, which affirmed that a beneficiary may pay the costs and fees associated with the processing of a Form I-140 petition. On June 1, 2007, Donald Neufeld, Acting Associate Director, Domestic Operations with the USCIS, issued a policy memorandum entitled, "Interim Guidance Regarding the Impact of the Department of Labor's (DOL) final rule on, Labor Certification for Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, on Determining Labor Certification Validity and the Prohibition of Labor Certification Substitution Requests" that indicated a beneficiary may pay the filing fees in connection with a Form I-140 petition. Page 3 of the policy memorandum also indicated the beneficiary may pay the legal fees for representation in connection with a Form I-140 petition. It is important to note that the policy memorandum issued on June 1, 2007 did affirm that a foreign national beneficiary may not pay any of the costs and fees associated with an Application for Permanent Employment Certification (ETA Form 9089). Neufeld distinguished between those costs and fees associated with an ETA Form 9089 and those costs and fees associated with a Form I-140, and affirmed a beneficiary may pay the costs and fees associated with a Form I-140 petition, even if the Form I-140 petition is based on an ETA Form 9089. Based on this USCIS policy memorandum, an argument could be made that USCIS permits a beneficiary to pay the Asylum Program Fee on behalf of a sponsoring employer in a Form I-140 context. This policy memorandum also may show that USCIS does not regard the payment of the costs and fees associated with the Form I-140 petition by the beneficiary as somehow depressing the offered wage and/or prevailing wage that is listed on the ETA Form 9089. As of this date, it does not appear that USCIS has issued any policy memoranda that has superseded the June 1, 2007 USCIS policy memorandum issued by Mr. Neufeld with respect to the ability of a beneficiary to pay the costs and fees of a Form I-140 petition on behalf of the petitioner.

The new USCIS filing fees, including the Asylum Program Fee, will take effect on April 1, 2024, unless the U.S. District Court issues an injunction (see footnote 1). U.S. employers who are interested in filing Form I-140 petitions on behalf of foreign nationals will need to decide quickly as to whether to have a beneficiary pay the Asylum Program Fee on their behalf or not. It is hoped that the above information will provide some insight or assistance to help guide U.S. employers in their decision making. In time, USCIS may provide definitive guidance as to whether a beneficiary may pay the Asylum Program Fee in a Form I-140 context. Some employers may choose to take a conservative approach and not have the beneficiary pay the Asylum Program fee on their behalf. Others may choose not to wait and do the opposite, given the government's silence and that which is stated above. It is also possible that if the government continues to remain silent, and as more Form I-140 petitions are filed and processed by USCIS, with U.S. employers reporting no issues in having the beneficiary pay the Asylum Program Fee on their behalf, more U.S. employers may follow suit.

Footnote

1. On March 19, 2024, a lawsuit was filed in U.S District Court that challenges the USCIS final fee rule. The plaintiffs (ITServe Alliance and an EB-5 investor) contend that the final rule arbitrarily imposes the Asylum Program Fee in excess of the USCIS's statutory authority. Although the plaintiffs have requested that the court provide injunctive relief, as of this writing the fee rule is still in effect. See: S. Anderson. "Immigration Lawsuit Filed to Block USCIS Fee Rule." Forbes, March 20, 2024: https://www.forbes.com/sites/stuartanderson/2024/03/20/immigration-lawsuit-filed-to-block-uscis-fee-rule/?sh=27b15fba7449

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