As we reported previously, the U.S. Citizenship and Immigration Services was due to increase filing fees by approximately 20 percent across many filing types, including new fees on asylum and additional fees for applicants under Deferred Action for Childhood Arrivals. Employers with high proportions of H-1B and L-1 employees would also be required to make additional border security fee payments when petitioning for these employees. In addition, the new fee rule was to increase the premium processing timeline to almost three weeks, from 15 calendar days to 15 business days. These changes were to take effect on October 2.
But last week, a federal judge in California paused the new USCIS fee rule before it took effect. The nationwide preliminary injunction prohibits the Department of Homeland Security from enforcing the new fees while the pending lawsuit is further litigated in court. The judge said that the plaintiff, the Immigration Legal Resource Center, was likely to succeed in showing that the fee rule was “arbitrary and capricious” because the data and justification supporting the rule were not well explained as required by law. In addition, the judge said that the plaintiff was likely to succeed on its claim that DHS Acting Secretary Chad Wolf was improperly appointed to his position and therefore not authorized to issue the new rule.
What this means for employers
Obviously, the higher fees, the new forms, and the new extended premium processing timeline did not take effect, and will not take effect until further notice.
If the ILRC ultimately prevails on its claim Mr. Wolf was improperly appointed to his position and therefore was not authorized to issue the new fee rule, there may be other policies that will eventually be invalidated.
Expansion of premium processing
On September 30, President Trump signed H.R. 8337 - the Continuing Appropriations Act, 2021 and Other Extensions Act, which will fund the government through December 11. The appropriations bill contains language from the Emergency Stopgap USCIS Stabilization Act (H.R. 8089), to address the USCIS budget shortfall by giving the agency immediate access to existing premium processing funds that were originally dedicated to infrastructure improvement. (See page 30 of the Appropriations Act.) This portion of the legislation would increase USCIS revenues by raising existing premium processing fees for most form types and expanding premium processing to other form types.
The USCIS provisions make the following changes:
Increase the premium fee from its current $1,440 to $2,550. The only exceptions are H-2B seasonal workers and R religious workers. Their fees will be $1,500.
Increase the time frame for premium processing from the current 15 days to up to 45 days, depending on filing category:
EB-1 petitions for multinational executives and managers – Time limit is 45 days, and premium processing fee will not exceed $2,500.
I-129 nonimmigrant worker petitions – Time limit is 15 calendar days, and premium processing fee will not exceed $2,500.
Applications to change nonimmigrant status to F (academic student), J (exchange visitor), or M (vocational student) – Time limit is less than 30 days, and fees are less than $1,750.
Applications to change or extend status as the dependent of an E (treaty trader or investor), H (temporary worker), L (intracompany transferee), O (extraordinary ability), P (artist or athlete) – Time limit is less than 30 days, and fees are less than $1,750.
Applications for employment authorization – Time limit is less than 30 days, and fees are less than $1,500.
Expand premium processing to other categories, including applications for dependents of principal beneficiaries and applications for employment authorization. Dependent applications now eligible for premium processing include change or extension of status applications tied to the nonimmigrant E, H, L, O, P, and R categories.
Allow the DHS to adjust premium fees biannually to reflect inflation without following rulemaking requirements.
Permit the USCIS to suspend premium processing of applications when it deems necessary, but only if circumstances prevent the timely processing of a significant number of such applications.
The appropriations bill took effect when the President signed it, but the increased fees and expanded availability of premium processing will not take effect until the USCIS is able to implement new regulations or a formal policy that is likely to include a new form and specific fees. We expect a public announcement to be made soon outlining next steps.
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