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The Biden Administration’s Proposed Rule, U.S. Citizenship and Immigration Services Fee Schedule Changes to Certain Other Immigration Benefit Request Requirements, CIS No. 2687-21; DHS Docket No. USCIS 2021-0010 is scheduled to be read on January 11, 2023 for a listening session with the final rule and changes taking effect after a 60-day public comment period.  This sprawling, over 400-page proposal seeks to significantly increase fees for permanent and temporary work visas to subsidize the USCIS asylum program and fund the general overhaul of USCIS’ visa processing infrastructure. 

The good news is that fee hikes intend to expedite visa processing, eliminate the backlog, and hire additional adjudicators.  The other good news is that fee hikes will be used to reduce or eliminate asylum application fees for low-income seekers, including victims of human trafficking and other serious crimes.  The bad news is the burden for these two components is placed entirely on employers of foreign nationals.

USCIS relies on application fees rather than Congressional funding, and claims that employers are best suited to pay higher fees because they can afford it.  At the same time, USCIS notes that fees have not been adjusted since 2016.  However, the cost of applying for these visas will increase significantly.

EB and H-1B employers will be required to pay an addition $600 fee specifically for the asylum program on top of fee increases.  For H-1B applicants, the electronic registration fee will jump from just $10 to $215.  The full H-1B petition application fee will increase from $460 to $780, and THEN the additional $600 asylum fee will bring the total price tag to $1380.  This is an enormous burden to put on employers.

The EB-5 visa classification will make the largest jump from $3675 to $11,160 under the new rule, and the cost of applying to change temporary visa status to Green Card status will jump from $1225 to $1540.

If the rule goes into effect, it may impact the FY2024 H-1B visa filing period, and will certainly impact non-cap subject H-1B applicants in the coming year.  It is unclear whether it is legal for employers to be forced to subsidize the asylum program.  While USCIS traditionally relies on application fees, this may be a case in which Congressional funding is required.  We will follow the trajectory of this proposed rule over the coming months.

Sheila Danzig

Sheila Danzig is the director of CCI  Sheila specializes in overturning RFEs and Denials for work visas.

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