A Closer Look at USCIS Filing Fee Changes
March 21, 2024As the dust settles on the USCIS’ Final Rule published on January 31, 2024, new concerns arise from the increase in fees and procedures. Our firm discusses below these updates and how they affect our clients, both corporate and individual.
H-1B and I-140 petitions
Both H-1B and I-140 petitions have an additional fee of $600 called the Asylum Program Fee. For small employers (fewer than 25 full-time employees) the fee is $300 and for nonprofits it is $0. According to the USCIS, the primary motivation for these new fees is to enable USCIS to recover its operating costs more fully. Unlike many other federal agencies, 96% of the USCIS budget is derived from user fees, while only about 4% is from congressional appropriations. By adjusting the fees, USCIS aims to support timely processing of new applications. In publishing the Final Rule, USCIS noted that the fee increases are essential to recover operating costs, expand humanitarian programs, provide federally mandated pay raises to its current employees, and hire additional staff. Our office anticipates that the Asylum Program Fee will be challenged in the federal courts. Corporations should meet with their immigration attorney to properly adjust their immigration budget in anticipation of these significantly increased fees.
Adjustment of Status Petitions
The USCIS will no longer have a $0 filing fee for Employment Authorization Document (EAD) and Advance Parole (AP) petitions filed as a part of Adjustment of Status petitions or as a renewal application. EAD applications and renewals will have a filing fee of $260. AP applications and renewals will have a $630 filing fee. Unfortunately, this seems to be rewarding the USCIS for its own inefficiency by requiring applicants to pay additional filing fees when the USCIS does not adjudicate the applicant’s Adjustment of Status petition in a timely manner. Corporations should decide whether they want to continue covering the legal fees for EAD and AP renewals and make a policy on whether to cover these new related filing fees. It is important to consider Adjustment of Status applicants in the EB-2 and EB-3 categories, particularly those born in India and holding exceptionally long wait lines, who may need to renew their EAD and AP cards 5-10 times before receiving their green card.
I-539 Dependent Petitions to Extend/Change Status
While much of the H-1B petition process seems to be modernizing with technological advances, the H-4 applications seem to be a forgotten area of final rule. The final rule’s new filing fees incentivize filing online by making it $50 cheaper to file an H-4 application online than by filing on paper. However, due to a technological loophole, the H-4 applicant must choose between saving $50 to file online or having legal counsel represent them in their case. At this time, an I-539 petition filed online cannot be linked to Form G-28, Entry Notice of Entry of Appearance as Attorney. This prohibits the attorney from filing the petition on the client’s behalf and prevents the attorney from having specialized oversight into the process via the advantages of the online portal (such as advanced notice of when a case has been approved, immediate receipt notice issuance, etc.).
Furthermore, the new Organizational Accounts Platform, which went live for the H-1B Lottery Registration for FY 2025, cannot be linked to an online I-539. H-1B Lottery Registration for FY 2025 requires that all H-1B petitions for those selected in the lottery be filed online only, leaving H-4 applicants for FY 2025 particularly disadvantaged. Most profoundly, this also means that when an H-1B petition is filed online, the H-4 applicant is also required to forgo premium processing because, in order for an H-4 petition to be premium processed used the 14 calendar day window, it must be “bundled” with the H-1B petition. This leaves H-4 petitions to face the 6-12 month processing window on their own, separate from the H-1B petition. H-4 applicants whose spouses were selected in H-1B Lottery Registration for FY 2025 should speak with their attorney about when the attorney plans to file the H-4 petition via paper so as to minimize the long H-4 waiting time.
For H-1B petitions that are not filed as a result of being selected in the H-1B Lottery Registration for FY 2025 (such as H-1B extensions, transfers, amendments, etc.), they have the option of filing paper petitions, as of the date of this blog post. H-1B petitions filed with premium processing can still be filed via paper petitions to USCIS Service Centers with bundled H-4 and EAD applications, though the additional $50 paper filing fee will occur. This procedure allows for the H-1B, H-4 and EAD clients to have legal representation on all three of these petitions.
Our firm will continue to closely monitor the advances in these areas and update our clients accordingly. If you would like to schedule a consultation with our firm about these matters, please click the Contact Us tab.