Update: The fee rule described in this blog did not go into effect on October 2, 2020! The lawsuit brought on August 20 had the effect of stopping the rule from taking effect - permanently on December 28, 2020. In addition,H.R.8337 - Continuing Appropriations Act, 2021 and Other Extensions Act passed into law on October 1, 2020.  This legislation includes the "Emergency Stopgap USCIS Stabilization Act," which provides for an increase in premium processing fees from $1,440 to $2,500.00.  The higher fee will apply to all Form I-907 filings starting Monday, October 19, 2020.  The Emergency Stopgap USCIS Stabilization Act gave the USCIS the authorization to have premium processing fees established for other services, including employment authorization document applications, but the USCIS has not yet implemented such a change.  

The Department of Homeland Security (DHS) and the domestic immigration agency USCIS has been complaining that there are not adequate fees to pay workers and have twice threatened 70% or 13,000 employees with furloughs this summer.  At the end of July, the DHS/ USCIS released a final rule increasing many filing fees and introducing a 15-business day rather than 15-calendar day premium processing.[1]  I predict that a good portion of the rule, if not the whole rule, will go into effect despite a lawsuit to enjoin it filed August 20, 2020 by the American Immigration Lawyers Association (AILA) and agencies representing low-income and vulnerable immigrants.  September 2, 2020, the USCIS published a memorandum on how the new fee rule will be integrated into its Policy Manual effective October 2, 2020.[2]

The fee rule has gone through a notice and comment period, and the final rule was published in the Federal Register[3] – all 142, three-column pages of it.  Department of Homeland Security and USCIS “responses” to comments on the draft fee rule take up much of first sections of the new rule. Comments did not yield a lot of changes, except in one area: fees will not be used to fund Immigration and Customs Enforcement (ICE), the immigration police.

Fee and Time Horizon Increases

Any Marriage-Based Immigration Path Involving Adjustment of Status: Debundling of Interim Benefits - File to Adjust Status before October 2

Adjustment of status is accomplished with the filing of a Form I-485 in the United States.  Adjustment of status allows someone present on a non-immigrant visa in the United States to switch to an immigrant visa status - without having a US embassy interview.  While the Form I-485 is pending (from the time that the filing is received to the time of the interview and decision), if a foreign national leaves the United States, their application is considered abandoned, if they do not have an approved I-131 travel permission (advanced parole).  Likewise, they can have permission to work using an employment authorization document while the I-485 is pending, but only if they request it using Form I-765.  Both of these forms were included in the price of the I-485 since July 30, 2007. The final rule eliminates bundling of the I-131 and I-765 fees into the cost of the I-485. The USCIS claims that they could not get any efficiency from adjudicating all the forms related to one case, and so the immigration agency will be charging for adjudication of each form separately as of October 2, 2020.  The fee for Form I-131, Application for Travel Document, will be $590 and the fee for Form I-765, Application for Employment Authorization will be $550.  File to adjust status before October 2 to avoid the debundled fees for interim benefits.

K-1 and K-3 Visa Holders: File to Adjust Status Before October 2

If you are arriving in the US on a K-1 (fiancé visa) or a K-3 (spouse visa), file to adjust status on Form I-485 before October 2, 2020, if possible.  Calculate the additional fees when deciding whether to use the K-1 or K-3 paths for marriage-based immigration after October 2, 2020.  Those who arrive on fiancé (K-1) or spouse (K-3) visas need to adjust status to become green card holders.  K-1 and K-3 visa holders' fees for adjustment of status will increase, if they need to work or travel outside the United States while their I-485 forms are pending.

Note: A K-3 spouse, who is the beneficiary of an immigrant petition filed by a US citizen on a Petition for Alien Relative, Form I-130, will still not need to pay the Form I-129F filing fee.  8 CFR 106.2(a)(5)(ii) (regulation after October 2, 2020); 8 CFR 103.7(b)(1)(i)(K) (current regulations). A K-1 fiancé will still need to pay an I-129F filing fee to classify themselves as a fiancé (currently $535, reduced to $510 on October 2, 2020).

Non-Immigrant Visa Classifications: File Petitions in September

Employers seeking the non-immigrant employment visa statuses for employees will want to file before October 2, 2020, if possible.  The total filing fee for Form I-129 Petition for Alien Worker used for temporary resident workers will vary with the type of status sought, and the number of beneficiaries on the petition - for up to 25 beneficiaries. Sample per beneficiary rates will be:

Intra-Company Transferee - L petition $805
Extraordinary Ability - O petition: $705

The prior fee for a Form I-129 petition regardless of the type of status requested was $460.

Time Frames Will Increase: Take Advantage of Shorter Premium Processing Times Before October 2

The number of days that the USCIS allows itself to take action on a Premium Processed Form I-129 for an O or L non-immigrant visa petition will increase from 15-calendar days to 15-business days.[4]  The USCIS claims that this increase will allow the USCIS to keep Premium Processing going during surge times.

File Form N-400 to Become a US Citizen

File to become a US citizen before October 2!  The Form N-400 filing fee will increase from $640 to $1170 for paper filings, an $850 increase.[5]

Forget Your Passport or Visa, or Just Do Not Have the Appropriate One? 

The Application for Waiver of Passport and/or Visa Form I-193 is often granted by officers of the Customs and Border Protection agency with a fee waiver in their discretion as a kindness.  If they decide to charge for it from October 2, 2020, it will cost $2,790 up from $585.

Fee Reductions: Wait to File

Green Card Renewal on Form I-90

Those filing for replacement of a green card on Form I-90 do not need to hurry.  The final fee will be $40-50 less, depending on whether one files online.

Application for Citizenship and Issuance of Certificate

An N-600K will be $945 for a paper filing, down from $1170.

Application for Certificate of Citizenship

Likewise, the cost of the N-600 will decrease.  It will be reduced from $1170 to $1000 for a paper filing.

The USCIS Immigrant Fee

The USCIS Immigrant Fee payable for green card production will reduce slightly from $220 to $190.  Pay this fee after issuance of an immigrant visa based on diversity visa lottery winning, employment, marriage or other family relationship.  During the CoVID-19 pandemic, the cards have been subject to printing delays, so I do not advise waiting to pay the fee in order to obtain the $30 savings.  Pay just before you use the immigrant visa to enter the United States.

New Fee Rule Controversies

Fees Will Not Help to Fund Enforcement of Immigration Rules by the Immigration Police

Under the final version of the fee rule, no fees will be transferred to Immigration and Customs Enforcement (ICE), the enforcement branch of the immigration agencies.  USCIS claims that this was because Congress funded ICE separately over the past year. Commenters complained that it could have been a violation of the Appropriations Clause of the Constitution and other rules which prohibit the transfer of funds without Congressional statutory authorization.  

Can an Acting Secretary Sign a Major Rule into Effect?

The Acting Secretary of Homeland Security, Chad F. Wolf, delegated his authority to electronically sign the rule Chad R. Mizelle, Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register.  According to the Department of Homeland Security, this means that the rule was signed by Acting Secretary of Homeland Security Chad F. Wolf.  A commenter on the draft rule questioned the rule’s efficacy given that Mr Wolf’s succession to that position is under controversy as unauthorized according to the Office of the Inspector General and the Appointments Clause and the Federal Vacancies Reform Act (FVRA).  

Fee Rule Lawsuit  

August 20, 2020, the American Immigration Lawyers Association, the Immigrant Legal Resource Center (ILRC), Catholic Legal Immigration Network (CLINIC), Illinois Coalition for Immigrant and Refugee Rights (ICIRR), and five other organizations sued the Department of Homeland Security and USCIS, on behalf of vulnerable and low-income applicants, stating that the rule is “defective, contrary to law and arbitrary and capricious under the Administrative Procedure Act (“APA”).[6]  They have asked the US District Court in the Northern District of California (San Francisco) to enter a nationwide injunction and stay the new fee rule, so that it does not take effect October 2, 2020.

Special thanks to Polina Dashevsky, Summer Intern, for initial research on this blog post.

Footnotes

[1] USCIS Adjusts Fees to Help Meet Operational Needs, July 31, 2020.  Federal Register, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, August 3, 2020.

[2] USCIS Policy Alert, Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, 46 pages, September 2, 2020 (USCIS Police Alert goes over the changes to the USCIS Policy Manual related to the new fee rule.

[3]  U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, Fed. Reg., Vol. 85, No. 149.

[4] As of October 2, 2020: 8 CFR Sect 106.4(a) General. A person submitting a request to USCIS may request 15 business-day processing of certain employment-based immigration benefit requests.

[5] Common applications with online filing options and their paper filing fee.  Online filing fee is $10 less.  Some online form filing prohibits use of an attorney on the filing, e.g., Form I-539.

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*Fees before October 2, 2020 without biometric fees.

[6] AILA and Partners Sue USCIS Over Fee Rule, AILA Doc. No. 20082100, August 20, 2020.

Update Resource

Premium Processing Fee Increase Effective Oct. 19, 2020.