The Proposed Rule

On November 14, 2019, the Department of Homeland Security (DHS) published a notice of a proposed rule that will considerably alter the fees associated with US filings and immigration benefits. The proposal also includes significant changes to some of the immigration forms published by the US Citizenship and Immigration Services (USCIS). DHS originally announced that it would accept public comments on the proposal for 30 days after publication; however, later extended the comment period until December 30, 2019. After comments are reviewed, a final rule will be published, which may differ from the original proposal. While USCIS has traditionally charged fees to pay for the services provided to petitioners and applicants, now the DHS proposes to allocate a significant portion of collected fees to support enforcement operations administered by Immigration and Customs Enforcement (ICE).

Overview of the Proposed Changes

Some of the applications/petitions most affected by the fee increase and other changes are naturalizations (N-400), adjustment of status (I-485), and some of the most heavily utilized (I-129) employment-based petitions for nonimmigrant workers. Notably, while the I-485 filing fee would marginally decrease for all applicants, USCIS would reinstate separate filing fees for each of the Employment Authorization Document (EAD) and Advance Parole (AP) applications, which it has waived since 2007. Additionally, children under 14 would have to pay the full amount of the I-485 filing fee instead of the current reduced amount.

Impact on Employment-Based Petitions/Applications                 

Under this new proposed rule, employment based petitions/applications would face not only fee changes, but also forms revisions. In addition, there would be new additional border security fee payments required from employers with a high proportion of H-1B and L-1 employees. Employers that have more than 50 employees and more than 50% are in H-1B or L-1 status presently pay an additional fee of $4,000 for each initial and change-of-employer H-1B petition and $4,500 for each initial L-1 petition. Under this new proposal, this additional fee would be applicable to all H-1B and L-1 petitions filed by employers that meet the 50 employee/50 percent test, whether for new employment or an extension of stay.

Further, DHS intends to charge different fees for different types of I-129 nonimmigrant worker petitions. Currently, the Form I-129 is used to apply for different visa classifications (H-1B, H-2A/B, L-1, O, P, and TN) and it requires the same uniform fee regardless of the classification sought through the use of the same I-129 Form. Under the new rules, USCIS would not only charge different fees for each classification, but it would also separate the standard Form I-129 into different forms designated for each classification.

Moreover, DHS seeks to increase the premium processing timeline from 15 calendar days to 15 business days. This will likely result in slower adjudication times for employers seeking to sponsor key executives and highly skilled workers. This proposal comes on the heels of an increase in the premium processing fee from $1,410 to $1,440 per petition.

Partial Elimination of Biometric Services and Fees for Humanitarian Relief

Instead of requiring a separate payment for biometric services, DHS would incorporate the cost of the biometrics into the fees charged for specific applications and benefits. DHS would also take an unprecedented step by introducing fees for humanitarian relief applications, such as Asylum, Withholding of Removal and DACA.

Some of the proposed DHS new fees for Naturalizations, Adjustment of Status Applications, Employment-Based Applications and other benefits would be as follows: