In a final rule, U.S. Citizenship and Immigration Services will raise the fees employers pay to submit petitions for workers and sponsor employees for permanent residence. USCIS argues that the fee increases are needed because agency costs have risen significantly since the last fee increase in December 2016. Congress does not provide annual appropriations for benefits processing, although it sometimes passes supplemental funding for USCIS. The new fees will take effect on April 1, 2024. The final rule retains two controversial fees that may lead to litigation. (USCIS also released a final rule that changes the H-1B registration selection process.)
Employer Fee Increases
Employers saw few changes from the proposed fee rule (January 2023) and the final rule. As proposed, employers hiring high-skilled foreign nationals will pay 70% more for beneficiaries on H-1B petitions, 201% more for employees on L-1 petitions and 129% more for individuals on O-1 petitions. (H-1B petitions increase from $460 to $780, L-1 petitions rise from $460 to $1,385 and O-1 petitions increase from $460 to $1,055.) The USCIS website contains a complete list of the new fees.
An I-485 Application to Register Permanent Residence or Adjust Status (with biometric services) would increase from $1,225 to $1,440, a $100 less than in the proposed fee rule.
Fees for named beneficiaries for H-2A petitions (for agricultural workers) will rise by 137% (from $460 to $1,090) and for H-2B petitions (for seasonal, nonagricultural workers) by 135% (from $460 to $1,080). USCIS did not change these fees from the proposed rule.
An immigrant petition by a regional center investor will increase by 204% (from $3,675 to $11,160), and a petition by an investor to remove conditions on permanent residence status will rise from $3,750 to $9,525.
Two Controversial Fees Remain: H-1B Registration And Funding The Asylum Program
USCIS retained from its proposed rule a new Asylum Program Fee of $600 paid by employers when filing a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker.
Dan Berger of Curran, Berger & Kludt noted that employers might pay this $600 fee multiple times for a single individual. An employer may file for a student or new worker an initial H-1B petition, an extension of H-1B status and an immigrant petition (I-140) for an employment-based green card.
In a change from the proposed rule, USCIS will exempt nonprofits from paying the Asylum Program Fee. The final rule also reduces the fee to $300 for employers with 25 or fewer full-time employees.
In the final rule, USCIS/DHS retained the higher H-1B Electronic Registration Fee. However, employers will not pay the higher amount in 2024 because the fee rule does not take effect until April 1, 2024—after the H-1B registration process ends.
The H-1B Electronic Registration Fee for each beneficiary will increase from $10, established in 2019, to $215, a 2,050% increase. “DHS understands that an increase from $10 to $215 may appear to be exorbitant at first glance,” according to the justification for the increase in the proposed rule.
If the number of H-1B registrations were similar in a year to FY 2023, a National Foundation for American Policy analysis estimated employers collectively would pay approximately an additional $100 million a year due to the higher fee.
USCIS previously operated a paper-based system for the H-1B lottery. The agency did not explain why the new $215 H-1B registration fee is needed to cover administrative costs that should be less under the electronic registration system. “The electronic registration process streamlines processing by reducing paperwork and data exchange and provides overall cost savings to employers seeking to file H-1B cap-subject petitions,” according to the USCIS website.
Examining The Rule
USCIS estimates it will see an additional $1.14 billion in revenue, with much of that increase falling on U.S. employers, notes Lynden Melmed of BAL. “Companies will be disappointed if case processing times do not improve,” he said.
Kevin Miner of Fragomen said that companies currently pay significant government fees, including a $500 fraud detection and prevention fee for H-1B and L-1 visas, a $1,500 H-1B scholarship and training fee and premium processing that will soon exceed $2,800.
“Rather than looking to what processing a particular application actually costs, DHS instead is basing fees on what it views as the ability to pay,” said Miner. “The deeper the pockets the agency believes a filer has, the greater the fee increase. There are serious questions whether the agency has the authority to set fees in this way, and it won’t be surprising to see lawsuits challenging this methodology.”
Miner and Melmed agree the $600 Asylum Program Fee is the rule’s most controversial provision. Miner thinks it could be voided through litigation.
USCIS has a monopoly on its service, which gives employers few options other than to pay the fees or go without the workers. “We project our larger clients could see an increase of anywhere from 115% to 175% in filing fee costs in the first year of the new fee schedule,” according to Lynden Melmed. “That comes at a difficult time for many industries, but not a single client has signaled that the increases will affect their hiring plans for the year ahead. They hire the best they can irrespective of whether the individual requires visa sponsorship, and no company wants to limit their applicant pool in critical fields.”
