February 1, 2024

This post is mostly about the new USCIS fee schedule. The biggest change is a new “asylum program fee” tacked onto most I-129 & I-140 petitions. For most employers, this fee is $600. For small employers, (25 or fewer FTE employees) it is $300. For 501( c)(3)nonprofits, it is 0.
The asylum program fee will probably be challenged, and may or may not get struck down by the federal courts. Why are those who come to the US in need of humanitarian aid the responsibility of US organizations that employ foreign workers? Employers are already penalized at every turn for the mismanagement of USCIS. This fee seems designed to create conflict between two classes of stakeholders, both of which need DHS to function better and improve its accountability.

Adjustment of status at first seems not to be a terrible increase, after 8 years: adults go from $1225 to $1440 & under-14s go from $750 to $950… until you look at the impact of the fees for EAD and Advance Parole. I’ve said this before during the comment period on the previous fee rule: charging adjustment applicants fees both upfront and for renewal of the ancillary employment authorization documents and advance parole travel documents creates a perverse incentive to grow even bigger backlogs. Here, USCIS is financially rewarding itself for inefficiency. Oh, your green card application is still pending after 2 years? You’ll need to pay for another EAD and a new travel document. Those fees are substantial, which jacks up the cost of the green card process to put it further out of reach for many. While USCIS has set a half-price fee for an I-765 filed concurrently with AOS at $260, the I-131 fee for advance parole application filed concurrently with AOS is $630 for everyone, and USCIS is taking a year or more to process them.

When USCIS says the rate hike is needed to increase efficiency, we have to laugh. Never in the Agency’s history, including pre-2002 INS, has a fee increase ever reduced processing times, backlogs, Service errors, or mindless RFEs, nor has it improved training or accountability of Immigration Services Officers. The only true efficiency here is getting rid of the separate biometrics fee, folding it into the cost of applications.

The I-140 fee at first looks like the least impacted, going from $700 to $715, but is accompanied by the $600 asylum program fee, so the new filing fee is really $1315, except for nonprofits and small employers.

One of the most concerning intersections of the new fee rule with the new H1B program rule is the treatment of I-539 applications for dependents. The new fee rule promotes online filing by making it $50 cheaper than paper filing, as for many other case types. But for I-539 applicants, the hidden cost is giving up the right to counsel as well as Premium processing. Unique among existing online application types, an e-filed I-539 cannot be linked to a Form G-28 (entry of appearance by an attorney), nor does USCIS have any plans to link them. Compounding this, the new Organizational Accounts platform which allows employers to e-file I-129 H1B petitions does not include, and cannot be linked to, the online I-539. For spouses of prospective and current H-1B workers, this means they must either forego Premium processing and legal representation, file on their own and wait the 5 to 9 months for approval of their H-4 status, or else the H-1B employer must forego electronic filing, so as to be able to include the paper I-539 with the I-129 petition, so that the spouse’s application can be afforded Premium processing and legal representation along with the H-1B petition. USCIS should be sued for interference with the right to counsel.

Some other eye-watering changes in the fee schedule include the new array of different I-129 fees, with varying impacts by type of petition and employer.
H-1B:$780/$460 for small employers & nonprofits
O-1:$1055/$530 for small employers & nonprofits
L-1: $1385/$695 for small employers & nonprofits
I-129s for E, H-3, P, Q, R & TN: $1015/$510 for small employers & nonprofits.

In other case types, USCIS continues its preference for e-filing. Fees for an I-130 petition for a relative will be $625 online, $675 on paper; an N-400 application for naturalization will be $710 online, $760 on paper.

All of these changes, and more, go into effect as of April 1, 2024. The I-129 and I-140 forms will also require new editions as of that date, and older editions of the forms will not be grandfathered.

Contact us if you have questions about how this will affect you.