USCIS adopts new fee schedule effective April 1, 2024

Updated March 28, 2024

On January 30, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it had published a final rule to adopt a new filing fee schedule. This is the first new fee schedule issued by USCIS since 2016. In its Frequently Asked Questions page USCIS has posted a New Fee Schedule Table that lists the old and new fees side by side. Changes of interest include:

• A new “asylum program fee” of $600 per I-129 petition and I-140 petition. (Nonprofits and universities are exempt from this fee.)

• An attempt to mitigate higher fees for employers by offering special discounts for small employers; for example, a reduced “asylum program fee” of $300. “Small employer” means those with 25 or fewer full-time equivalent employees.

• A $50 discount for those who choose online filing over paper filing, when online filing is offered. 

• Premium Processing Service timeframes will be counted in business days, not calendar days as before.

• Separate fees are established for Form I-129, Petition for a Nonimmigrant Worker, depending on the nonimmigrant classification sought (i.e. H-1B, TN, E-3, etc.).

• Separate filing fees will be required for Form I-131 (travel document) and Form I-765 (employment authorization) when filed with Form I-485 (adjustment of status), whether or not they are filed together.

The new fees and rules will become effective on April 1, 2024. There are increases in all application and petition types typically filed in employment-related cases, including Form I-129, petition for nonimmigrant worker; Form I-539, application for change or extension of status; Form I-140, petition for immigrant worker; Form I-485, application to register permanent resident status or to adjust status; and Form I-765, application for employment authorization document.

USCIS warns that applications and petitions postmarked or filed on or after April 1, 2024 must include these new fees. If the new fees are not included with such a submission, it will be rejected.

In addition, revised forms will also become effective on April 1, 2024, along with the new fees. USCIS says it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024, as long as they are accompanied by the new fee. However, there will be no grace period for some forms, including Form I-129 and Form I-140, because they must be revised with a new fee calculation. Filers must be careful to use the correct forms in each case, as well as to include the correct filing fee.

Government processing of immigration applications and petitions is funded by these user fees and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications and avoiding backlogs.

© Jewell Stewart & Pratt PC 2024

Premium Processing Service Fees to Increase on February 26, 2024

On December 27, 2023, the Department of Homeland Security (DHS) published a rule to adjust the premium processing service (PPS) fees as follows:

• Form I-129 (H, L, E, O, TN, etc.) - increase from $2,500 to $2,805

• Form I-140 - increase from $2,500 to $2,805

• Form I-539 (F, M, J) - increase from $1,750 to $1,965

• Form I-765 (certain F-1 students) - increase from $1,500 to $1,685

Under this new rule, all requests for PPS postmarked on or after February 26, 2024, must include the new applicable fee. This fee adjustment is not accompanied by any form changes and is being increased via the USCIS Stabilization Act (2020) which allows USCIS to adjust fees on a biennial basis.

© Jewell Stewart & Pratt PC 2024

USCIS Raises Fee for Premium Processing Service to $2,500

As we mentioned in our prior post, on September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president signed it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. On October 16, 2020, USCIS announced that any Premium Processing Service requests received on or after October 19, 2020, must be filed with a $2,500 fee. No new additional categories were designated as PPS-eligible.

© Jewell Stewart & Pratt PC 2020

Future changes to USCIS's Premium Processing Service

On September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president is expected to sign it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. Although the law goes into effect immediately, the changes to PPS do not. USCIS must now implement the law by proposing regulations, which can take several months. We are tracking this closely and when there are regulations promulgated, we will be reaching out to clients who may benefit from using PPS in new and existing/already pending cases. Note that this change is unrelated to USCIS’s Fee Rule which is on hold as of September 29, 2020, due a District Court injunction.

© Jewell Stewart & Pratt PC 2020

USCIS fee changes take effect October 2, 2020

09/29/2020 update:

On September 29, 2020, the U.S. District Court for the Northern District of California granted the motion for a preliminary injunction (“PI”) filed by eight nonprofit organizations in the ongoing Fee Rule litigation. The PI has a nationwide effect and bars the rule in its entirety for the duration of the litigation. Therefore, DHS may not require its new fees, forms, and other changes outlined below.

Original post:

On August 3, 2020, the Department of Homeland Security published a new rule containing numerous adjustments to U.S. Citizenship and Immigration Services’ (USCIS) filing fee schedule. In the new rule, DHS is planning on an upward adjustment of USCIS fees “by a weighted average of 20 percent.”

The rule, set to go into effect on October 2, 2020, further increases fees for many commonly used forms such as N-400 for naturalization, I-485 for Adjustment of Status (AOS), I-140 for immigrant visa petitions, and I-129 for nonimmigrant visa petitions, which will carry separate fees for each visa classification.

Other significant changes in the rule include:

• Employment Authorization (EAD) and Advanced Parole (AP) are now “unbundled” from AOS applications – meaning that each form must be filed with the corresponding fees, whereas previously when filed with a Form I-485 the EAD and AP fees were waived.

• AOS fees for children under 14 years old are now the same as the adult fee.

• Separate biometrics fees are now subsumed within the form’s fee (in most cases the separate biometrics fee is no longer required).

• Premium Processing Service (PPS) is changing to 15 business days instead of 15 calendar days.

• Forms available online have different fees for filing online vs. paper; the filing the fee will be $10 lower for applying online.

The American Immigration Lawyers Association (“AILA”) has published a searchable table of fee adjustments, located here. USCIS will be publishing new forms 30 days before the rule will take effect, and new forms are required starting October 2, 2020, with some limited exceptions.

On August 20, 2020, AILA and partners sued USCIS over the rule, claiming that the agency lacked authority to issue the rule, and that its issuance violated the Administrative Procedures Act. The litigation is ongoing as of this writing.

© Jewell Stewart & Pratt PC 2020

USCIS suspends Premium Processing Service for all I-129 and I-140 petitions, including cap-subject H-1B petitions

Updated March 23, 2020:

On March 20, 2020, USCIS announced that Premium Processing Service is temporarily suspended for all I-129 and I-140 petitions, not just for H-1B cap cases. Cases that were already filed and accepted with Premium Processing Service will be processed “in accordance with the premium processing service criteria.”

Original post from March 17, 2020:

On March 16, 2020, USCIS announced that its Premium Processing Service (PPS) has been suspended for H-1B petitions that are subject to the annual cap. Until PPS resumes for these petitions, USCIS will reject any Form I-907 (PPS request) concurrently filed with a cap-subject H-1B.

USCIS’ announcement states that the agency will resume PPS for H-1B petitions requesting a change of status no later than May 27, 2020, and will notify the public in advance of the resumption. The agency also announced that it will resume PPS for all other cap-subject H-1B petitions no earlier than June 29, 2020. On those dates, petitioners can submit Form I-907 to request PPS.

PPS remains available for all other H-1B petitions. More information will be posted here as it becomes available.

© Jewell Stewart & Pratt PC 2020

Anomalous decision by DOL Administrative Law Judge allows deduction of H-1B visa fees from final paycheck

News Release from Jewell Stewart & Pratt PC On October 26, 2016, a U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) found that H-1B-related legal expenditures made by the employer could be deducted from the employee's final paycheck (Administrator v. Woodmen of the World Life Insurance Society). However, the reasoning on which the decision was based appears anomalous against the backdrop of other DOL pronouncements on an H-1B employer's wage obligations, and leaves important questions unanswered.

In the case, an H-1B employee resigned from his job, and his final paycheck consisted of wages for his final nine days of work, plus his accrued but unused vacation time. The employer invoked the terms of a payback agreement the employer had with the employee relating to visa fees, and withheld the H-1B legal fees and costs from the employee's final check. The parties apparently did not disagree that the $1,225 government filing fee for Premium Processing Service (PPS) had been for the employee's convenience rather than the employer's business need, so withholding of that $1,225 from the final check was not in dispute. Regarding the other legal fees and costs, however, the ALJ held that the employer withheld those from "benefits" (the employee's accrued but unused vacation time) and not from "wages" (the nine days he employee had worked in the final pay period), and therefore the employer's withholding of the visa fees did not have the effect of reducing the employee's wages below the H-1B "required wage rate," however the required wage rate may have been calculated. (The parties disagreed on what the "actual wage" was and therefore on the "required wage rate," but the ALJ sidestepped that issue.)

The Woodmen Life decision is troubling because it suggests the illogical conclusion that an employee who leaves employment with a zero balance of accrued vacation can't be docked for the employer's H-1B expenditures, but an employee who leaves with unused vacation time can have the employer's H-1B expenditures taken out of their final paycheck. In addition, the decision is potentially misleading in that it omits any caveat regarding state employment law. It may have been the case that, in the state where the employee worked, which was not disclosed in the decision, state law did not equate accrued vacation pay with "wages," but in some states, including California, earned vacation time is expressly considered "wages," and vacation time is earned, or vests, as labor is performed. Therefore, in some states, making a distinction between "benefits" and "wages" for the purpose of docking an H-1B employee's final paycheck for the employer's H-1B expenditures would be impermissible under state law.

The Woodmen Life decision is anomalous when considered alongside DOL's regulations and policy statements on an H-1B employer's wage obligations, which appear to prohibit the enforcement of payback agreements whereby the employee reimburses the employer for H-1B legal fees and costs. Under DOL regulations, the H-1B employer must pay the H-1B employee wages at the “required wage rate” for the position. The “required wage rate” is defined as the higher of (1) the “actual wage” (the rate the employer pays to all its other employees with similar experience and qualifications who are performing the same job in the same geographic area), and (2) the “prevailing wage” (the average wage paid to workers in the same occupational classification in the geographic area of intended employment at the time the application is filed). It has long been DOL's position that the legal fees and costs of the H-1B process are an employer's business expense and must not be passed on, even indirectly, to the employee; otherwise, the employer would be effectively reducing the employee's pay below the H-1B “required wage rate.”

It is prudent for employers to consult with legal counsel before adopting a policy, practice, or agreement in which an H-1B employee may be made responsible for all or part of the H-1B-related expenditures, because generally such policies, practices, and agreements are prohibited by law, and any exceptions would be narrowly drawn.

Phyllis Jewell

© Jewell Stewart & Pratt PC 2016