In a move that will certainly elicit strong reactions from U.S. employers of foreign nationals, the Department of Homeland Security (“DHS”) is seeking up to 204% increases in filing fees for employment- and investment-based immigration applications to pay for processing asylum and refugee petitions.
These fee hikes will add to the already significant costs of petitioning to employ foreign nationals in the United States.
Its January 4, 2023, Notice of Proposed Rulemaking (“NPR”) states:
DHS proposes a new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129 Petition for Non-Immigrant Worker, or Form I-140, Immigrant Petition for Alien Worker…
DHS proposes this new fee as a way to mitigate the scope of the proposed fee increases in this rule for individual applicants and petitioners. DHS has determined that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting these costs to all other fee payers.
The NPR states DHS uses Activity-Based Costing (ABC) to assign costs of processing specific immigration applications, allocate costs for no-fee applications, distribute costs, and “make additional adjustments to effectuate specific policy objectives” according to the NPR:
For example, the costs of Form I-485 (Application to Adjust Status—ed.) filings that are fee-waived are shifted to the Form I-485 filings that pay the fee. All immigration benefit request fees that recover their full cost also recover the cost of workloads without fees, such as refugee workload. In this proposal, USCIS is allocating more asylum costs to Forms I-129 and I-140 than the forms would receive without additional intervention.
Asylum and refugee applications will continue to have no filing fees required.
Form I-129 is used for the following types of employment-based classifications:
E-1 Treaty Traders
E-2 Treaty Investors
H-1B Specialty Occupations
H-2A Temporary Agricultural Workers
H-2B Temporary Non-Agricultural Workers
H-3 Trainees
L-1A Intracompany Transferees–Managers and Executives
L-1B Intracompany Transferees—Specialized Knowledge Workers
O-1 Aliens with Extraordinary Ability
P-1 Professional Performers
Q-1 Cultural Exchange Visitors
R-1 Religious Workers
TN Workers Admitted Under the US-Mexico-Canada (“USMCA”) Agreement (formerly NAFTA)
In addition to the actual filing fees, this NPR also covers the H-1B Pre-Registration (lottery) Fee, raising it from $10 to $215.
Form I-140 is used for virtually all employment-based applications for permanent residence (“green cards”).
DHS will take comments on these proposed increases until March 5, 2023, before making a formal determination on adopting them.
Here is a list of the employment-based fee hikes:
| Form | Purpose of Form | Current Fee | Proposed Fee | Increase | % Increase |
|---|---|---|---|---|---|
| Asylum Program Fee | N/A | $600 | N/A | N/A | |
| H–1B Pre-Registration Fee | $10 | $215 | $205 | 2050% | |
| I–129 | Petition for a Nonimmigrant Worker: H–1 Classifications | $460 | $780 | $320 | 70% |
| I–129 | H–2A Petition—Named Beneficiaries | $460 | $1,090 | $630 | 137% |
| I–129 | H–2B Petition—Named Beneficiaries | $460 | $1,080 | $620 | 135% |
| I–129 | Petition for L Nonimmigrant Worker | $460 | $1,385 | $925 | 201% |
| I–129 | Petition for O Nonimmigrant Worker | $460 | $1,055 | $595 | 129% |
| I–129CW, and I– 129 | Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for Nonimmigrant Worker: E and TN Classifications; and Petition for Nonimmigrant Worker: H–3, P, Q, or R Classification | $460 | $1,015 | $555 | 121% |
| I–129CW, and I– 129 | Petition for a CNMI Nonimmigrant Worker (with biometric services fee) | $545 | $1,015 | $470 | 86% |
| I–129 | H–2A Petition—Unnamed Beneficiaries | $460 | $530 | $70 | 15% |
| I–129 | H–2B Petition—Unnamed Beneficiaries | $460 | $580 | $120 | 26% |
| I–140 | Immigrant Petition for Alien Worker | $700 | $715 | $15 | 2% |
| I–526 | Immigrant Petition by Standalone Investor | $3,675 | $11,160 | $7,485 | 204% |
| I–526E | Immigrant Petition by Regional Center Investor | $3,675 | $11,160 | $7,485 | 204% |
| I–765 | Application for Employment Authorization—Online | $410 | $555 | $145 | 35% |
| I–765 | Application for Employment Authorization—Paper | $410 | $650 | $240 | 59% |
| I–765 | Application for Employment Authorization—Online (with biometric services) | $495 | $555 | $60 | 12% |
| I–765 | Application for Employment Authorization—Paper (with biometric services) | $495 | $650 | $155 | 31% |
| I–829 | Petition by Investor to Remove Conditions on Permanent Resident Status | $3,750 | $9,525 | $5,775 | 154% |
| I–829 | Petition by Investor to Remove Conditions on Permanent Resident Status (with biometric services). | $3,835 | $9,525 | $5,690 | 148% |
| I–907 | Request for Premium Processing Service when filing: Form I–129 requesting E–1, E–2, E–3, H–1B, H–3, L (including blanket L–1), O, P, Q, or TN nonimmigrant classification; or Form I–140 requesting EB–1, EB–2, or EB–3 immigrant visa classification | $2,500 | $2,500 | $0 | 0% |
| I–956G | Regional Center Annual Statement | $3,035 | $4,470 | $1,435 | 47% |
Other:
| I–485 | Application to Register Permanent Residence or Adjust Status | $1,140 | $1,540 | $400 | 35% |
| I–485 | Application to Register Permanent Residence or Adjust Status (with biometric services) | $1,225 | $1,540 | $315 | 26% |
| I–485 | Application to Register Permanent Residence or Adjust Status (under the age of 14 in certain conditions) | $750 | $1,540 | $790 | 105% |
| I–485 | Forms I–485 and I–131 with biometric services | $1,225 | $2,170 | $945 | 77% |
| I–485 | Forms I–485 and I–765 (filed on paper) with biometric services | $1,225 | $2,190 | $965 | 79% |
| I–485 | Forms I–485, I–131, and I–765 (filed on paper) with biometric services. | $1,225 | $2,820 | $1,595 | 130% |
| I–485A | Supplement A, Supplement A to Form I–485, Adjustment of Status Under Section 245(i) | $1,000 | $1,000 | $0 | 0% |