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Impact of New USCIS Fee Regulation on Employment Based Immigration

In January 2023, USCIS issued a proposed fee regulation to make changes to USCIS filing fees for most services. In Januarys 2024, USCIS has finally issued the final rule and intends to implement the new rule for all cases filed after April 1, 2024. These fees will have significant impact on the employment-based immigration community and it is important businesses understand the changes.  This article will not address all of the changes being made, but will address the major changes that will be in play for employment-based filings. The complete final rule and commends can be found here.

While most of these fees will seem like extreme changes, it is important to understand the background of the current fee rule. USCIS routinely updates its fees to align with the expenses it takes to provide USCIS services. In recent years the fees that businesses and individuals have become accustomed to have been based on the 2016 fee regulation. USCIS attempted a fee regulation in 2019, but this fee regulation was enjoined, prevented from being implemented, by a federal court. Thus, the changes we see here are changes to the 2016 fee regulation which is nearly a decade old at this point.

Classification Changes in the Fee Regulation

As will be discussed in more detail below, there are different fees on how the business is defined; that is, whether it is a non-profit, a small business, or a large business. It is important for companies to understand which classification the company falls into when determining the fees.

In the final rule, USCIS is defining a “small employer” as one that has 25 or fewer full time employees.  This is aligned with the definition and fee structure in the American Competitiveness and Workforce Improvement Act (ACWIA) which sets different H-1B fees for employers based on the size. It is worth noting, that this calculation of full time employees will include ALL employees regardless of visa status. The opposite, a “large employer” will be an employer that has 26 or more full time employees. 

USCIS is primarily relying on the tax-exempt status of the company to determine if they are a nonprofit. So companies that are approved by the IRS as a nonprofit under section 501(c)(3) will be qualified for the nonprofit status filing fees. Additionally, government research organizations will qualify as well.

Nonimmigrant Visas (Such as H-1B, L-1, TN, O-1, E visas, and similar)

USCIS has finalized significant changes to nonimmigrant visas which includes H-1B, L-1, TN, O-1, E-1/E-2 visas, E-3 visas, and other temporary work visas. Notably, there are no changes to the statutory fees that Congress has imposed such as the ACWIA fee ($750 for small companies and $1,500 for large companies), the Public Law 114-113 fee which imposes a $4,000 fee for those companies with more than 50 employees with more than 50% on H-1B or L-1 visas, or the $500 fraud detection fee for initial filings or H-1Bs.

The first big change is that there will be an additional fee for all I-129s to help fund the asylum program. The Asylum Program Fee will be mandatory for all I-129s regardless of the benefit requested. This fee will be $300 for small employers, $600 for large employers, and $0 for nonprofits. USCIS anticipates that his will generate $313 million to help fund the asylum program each year.

The next change is a change to the base filing fee. The current base filing fee for I-129s is $460. In the new fee regulation, USCIS will be implementing changes based on the classification as a large or small employer as well as different fees for the specific benefit sought. This means, for example, that there will be different fees for an I-129 for an H-1B and an I-129 for an L-1. As of April 1, 2024, the new base filing fees will be as follows:

Benefit Request

New Base Filing Fee as of April 1, 2024

Asylum Program Fee[1]

Total fee

H-1B large employer

$780

$600

$1,380.00

H-1B small employer and nonprofits

$460

$300

 $760

H-1B Registration Fee

$215[2]

$0

$215

H-2B for large employers for named beneficiaries

$1,080

$600

$1,680.00

H-2B for small employers and nonprofits for named beneficiaries

$540

$300

$840.00

H-2B for large employers for unnamed beneficiaries

$580

$600

$1,180.00

H-2B for small employers or nonprofits for unnamed beneficiaries

$460

$300

$760.00

L-1 for large employers

$1,385

$600

$1,985.00

L-1 for small employers and nonprofits

$695

$300

$995.00

O-1 for large employers

$1,055

$600

$1,655.00

O-1 for small employers and nonprofits

$530

$300

$830.00

E, H-3, P, or TN classification for large employers

$1,015

$600

$1,615.00

E, H-3, P, or TN classification for small employers

$510

$300

$810.00

As noted above, the fees in the far right column do not include the H-1B fees that are required by Public Law 114-113, ACWIA, or the fraud fee.

In addition to the I-129 changes, there will be changes to the dependent classification filings. This includes changes to the I-539 and I-765. Note, there are changes for the I-765 based on the I-485 that will be addressed in a later section.

Benefit Request

New Filing Fee as of April 1, 2024

I-539

$470

I-765

$520

There are slightly lower fees for those that file I-539 or I-765 online where available. However, as of this article, these cases cannot be filed online with a legal representative.

Immigrant Visa Petition (I-140 and EB-5 I-526) Fee Changes

Similar to nonimmigrant visas, there are significant changes to how immigrant visa applications, green card applications, fees will be handled for cases filed after April 1, 2024. 

The base I-140 fee will increase to $715, a modest $15 increase, for all I-140s. This fee increase applies regardless of whether the company is a large or small company. However, the asylum fee will also be required for all I-140s. This will be $600 for large employers, $300 for small employers, and $0 for nonprofits. USCIS did not waive this fee for individual petitions that are filing for EB-1 or EB-2 NIW, and they will be treated as small employers for purposes of the Asylum Program Fee. Therefore, the new I-140 filing fees look as follows:

Benefit Request

New Base Filing Fee as of April 1, 2024

Asylum Program Fee

Total fee

I-140 for large company

$715

$600

$1,315.00

I-140 for small company

$715

$300

$1,015.00

I-140 for individual (EB-1 or EB-2 NIW)

$715

$300

$1,015.00

I-140 for nonprofit

$715

$0

$715

In addition to the changes to the I-140s there are increases to the EB-5 program fees. While USCIS recognizes that the EB-5 Reform and Integrity Act of 2022 (RIA) required USCIS to do a fee study within one year of passage, which USCIS has not done, USCIS takes the position that that fee study is different from the fees in the regulation. The EB-5 fee changes are as follows

Benefit Request

New Fee as of April 1, 2024

I-526/I-526E (Immigrant Petition by Standalone/Regional Center)

$11,160

I-829 (Petition to Remove Conditions)

$9,525

I-956/I-956F (Application for Regional Center Designation/Application for Approval of an Investment in a Commercial Enterprise)

$47,695

I-956G (Regional Center Annual Statement)

$4,470

Adjustment of Status Changes

One of the most significant changes in the fee regulation is to how adjustment of status (Forms I-485) is being handled in the future. For cases filed before this fee regulation is implemented, they will continue to pay the I-485 fee and will not incur additional expenses for the I-131 (advance parole) or I-765 (employment authorization). However, for cases filed after April 1, 2024, USCIS will no longer be “bundling” these services and individuals will need to pay separate fees for the I-13 and I-765. USCIS has elected to do this so that individuals only request benefits that they are intending to utilize and USCIS is not utilizing resources for filings that would not otherwise be needed. There will be a discount for the initial I-765 filed with the I-485 (adjustment of status), but the extensions will be an increased cost. Additionally, USCIS has included a “child discount” and children will be exempt from paying fees for the advance parole and work authorization

Benefit Request

New Fee as of April 1, 2024

I-485

$1,440

I-485 (under the age of 14)

$950

I-131

$630

I-765 (initial filed with I-485)

$260

I-765 (not filed with I-485)

$520

Procedural Changes in the Fee Regulation

In addition to the fee changes, there are some procedural changes that are important to note. First, USCIS will be changing premium processing calculations from calendar days to business days for all premium processing requests made on or after April 1, 2024. This is in addition to the previously announced premium processing fee increase that is set to take effect on February 26, 2024. The change to business days will lead to an increase in processing time for premium processing cases in the future.

USCIS has also announced that it will have the authority to deny cases that are receipted and have the wrong fee or revoke cases that were approved but were given the wrong fee. Presently, if a case is receipted, but has the wrong fee, USCIS will send an RFE asking for the proper fee or evidence that the fee paid was proper at the time of filing. Additionally, USCIS has not shown a propensity to revoke cases that were approved but for the wrong fee. This can be concerning depending on how USCIS intends to utilize this new power, and individuals will need to be extremely cautious about the filing fees that are being paid.

Conclusion

The fee changes are substantial for many immigration benefits that will be sought. While USCIS has indicated that these are essential to provide better processing time and customer service, that goal is still to be seen in the future. There have been talks amongst various groups on possible litigation to this fee regulation that may result in some changes to what has already been finalized. To the extent that happens, our team will prepare updates as we get them. With the changes in fees it is more important than ever to discuss with an experienced immigration attorney on you or your companies immigration needs so that you can take the best route both from an immigration perspective and a cost perspective.

Reddy & Neumann, P.C., located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

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Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.