U.S. Citizenship and Immigration Services (USCIS) issued a Final Rule
on Jan. 31, 2024, that will result in dramatic fee increases for many employer-based petitions. Employers will be well served to consider any petitions that can be filed prior to April 1 so as to avoid paying more, if possible.
Why Is the Fee Structure Changing?
USCIS has indicated that the purpose of the fee increase is to allow the agency to recover its operating costs more fully and support the timely processing of new applications. In many cases, USCIS has indicated that the new fee schedule aligns the fee charged to the time it takes an officer to review and adjudicate the case. For example, the filing fee for an I-129 for an L petition will be set at $1,385 for most petitioners, while the filing fee for an I-129 for an H-1B petition will be set at $780 for most petitioners. The L petition, used for intracompany transferee executive, manager, or specialized knowledge employees, tends to be more evidence heavy as the petitioner must provide documentation to prove that the beneficiary qualifies based on their role outside of the U.S. and the proposed role inside the U.S. Thus, this is the reasoning for the significantly higher fee for this type of petition.
The USCIS did recognize that significant fee increases may be overly prohibitive for small employers, defined as firms or individuals having 25 or fewer FTE employees, and nonprofits. Due to this, it carved out some exceptions where small employers will pay a lower fee. For example, the I-129L fee outlined above at $1,385 for most employers will be discounted to $695 for small employers and nonprofits. This discount can be found for other petitions throughout the schedule.
Additional Fee Changes Under the Rule
Another notable change is that all I-129, I-129CW, and I-140 petitions will have an additional Asylum Program Fee. This fee will be $600 for most employers. An exception has been made for nonprofits, who will not pay the fee, and small companies, who will only be required to pay $300. However, this fee is in addition to the general filing fee increases that are outlined by USCIS. The fee is intended to cover the costs associated with asylum processing, which does not have a fee. The Asylum Program Fee appears to apply to every I-129, I-129CW, and I-140, not just first time filings.
All of these fee increases outlined in the final rule are also on top of the increase to the premium processing filing fee from $2,500 to $2,805 that will be effective Feb. 26, 2024. Thus, for a traditional employer filing a first time H-1B petition under premium processing, the fees will go from current fees of $4,960 to a new fee amount of $6,185 in April of 2024. The rule also changes premium processing by allowing the USCIS its allotted number of days to be counted as business days instead of the current use of calendar days. Thus, in most premium processing cases, instead of 15 calendar days to take action, the USCIS now will have 15 business days to take action.
Another change that will result in significant additional fees is the treatment of adjustment of filing packages. When individuals file for adjustment of status to a permanent resident when inside the U.S., it is common that they apply for permission to work and travel internationally while the application is pending. Since 2007, there was not a separate fee for the processing of applications for employment authorization (I-765) and travel authorization (I-131) when filed concurrently with an adjustment of status application (I-485). These petitions will have separate filing fees. While they are discounted from the regular I-765 filing fees, combined, they will still result in fees of almost $900 on top of the new I-485 filing fees.
Some positive news for employers is that while the H-1B registration fee is increasing from $10 to $215, the increase will not occur for this H-1B registration cycle in March of 2024.
Next Steps for Employers
We have highlighted only a handful of the filing fee increases above. One thing that is certain is that the new fee structure is more complicated, with fees varying on the same form based on the classification requested and even the type and size of the employer. It will be critical to carefully consider which fees are applicable as USCIS will frequently deny processing a petition if it feels the wrong fees are provided, even if it was an overpayment. Employers should work closely with the Taft Law immigration team to identify the fees required for petitions. In addition, if considering filing petitions in the near future, employers should reach out to a Taft Law immigration attorney to assist in preparing and filing the petitions in advance of April 1 for significant cost savings.