Comment Period on Immigration Fee Proposal Extended

​Employers intending to comment on the proposal to raise filing fees for many employment-based immigration petitions and applications have a few more days to do so. The original comment period on the proposed rule from U.S. Citizenship and Immigration Services (USCIS) was scheduled to run until March 6 but has been extended until March 13.

The agency proposed the increased fees on Jan. 4, in part to help fund soaring asylum claims at the U.S.-Mexico border.

"It has been reported that USCIS has received negative commentary about the employment visa increases and has decided to extend the comment period for another week," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. According to USCIS, the comment period is being extended due to technical issues, he said.

USCIS last adjusted its fees in December 2016. The agency relies on user fees instead of congressional funding and stated that the new fees would allow it to "recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs."

Form Filing Increases

USCIS is proposing different fees for different visa classifications. The current base fee of $460 covers all temporary-worker visa petitions under Form I-129—used by employers to petition for guest workers under H-1B, H-2A, H-2B, L-1, O-1 and TN visa classifications. The new filing fees would be:

H-1B visas—$780

H-2A visas—up to $1,090

H-2B visas—up to $1,080

L-1 visas—$1,385

O-1 visas— $1,055

TN visas—$1,015

"Under the proposed rule, employers hiring high-skilled foreign nationals will pay 70 percent more for beneficiaries on H-1B petitions, 201 percent more for employees on L-1 petitions and 129 percent more for individuals on O-1 petitions," said Stuart Anderson, executive director of the National Foundation for American Policy, a public-policy research organization based in Arlington, Va.

"Fees for beneficiaries for H-2A petitions for agricultural workers will rise by 137 percent and for H-2B petitions for seasonal, nonagricultural workers by 135 percent," he said.

Employers filing Form I-140 for employment-based green cards will see only a 2 percent filing fee increase from $700 to $715.

In addition to the filing fee increases, USCIS is also proposing a new $600 asylum program fee to be paid by all employers sponsoring temporary workers or workers for permanent residence visas. The fee would apply each time an employer used Form I-129 for an initial petition, change of status or extension of stay. This additional fee is intended to be used to help fund the administration of the asylum program.

Another significant increase in fees would impact those seeking to adjust their status from temporary to permanent. Filing Forms I-485 (adjustment of status), I-131 (for advance parole) and I-765 for a work permit (unless done electronically), with biometric services, would increase by 130 percent.

Currently, individuals pay a filing fee of $1,225, which covers the adjustment application as well as applications for employment authorization and travel documents and any future renewals for those documents while the adjustment case is pending. USCIS is proposing separate fees for the three forms, adding up to $2,820, not including each subsequent employment authorization and advance parole application, until the adjustment of status is adjudicated.

"This new fee review and proposed rule is definitely an unwelcome proposal for employers, as the USCIS filing fees for many petitions will become more expensive," said Andrew Wilson, a partner at Lippes Mathias Wexler Friedman and co-leader of the firm's immigration practice in Buffalo, N.Y. "This could affect budget planning for immigration matters going forward. In addition to higher filing fees, it is an unwelcome proposal because I think it makes things unnecessarily confusing."

Comments on the proposed rule may be submitted here.