A proposal by the Department of Homeland Security (DHS) to impose substantial filing fee increases, as initially introduced in January 2023, has now been finalized and submitted to the Office of Management and Budget (OMB) for review. The final regulation is slated to be published in April 2024, but could be finalized earlier, should the OMB expedite its review process. An implementation timeframe will follow.
If passed, this regulation will increase filing costs for many immigration-benefit petitioners and applicants, with particularly steep increases for employment-based petitioners. Some notable proposals include:
Increase to, and separate fees for I-129 nonimmigrant visa petition categories: The uniform $460 filing fee the USCIS charges to Petitioners submitting Form I-129 for the various work visa categories will be eliminated, with the USCIS deciding to charge varying fees for each nonimmigrant visa category. The following are highlights as to these changes:
- The base H-1B petition fee would increase from $460 to $780, a 70% increase. The additional Anti-Fraud fee of $500 would still apply to initial H-1B petitions, as would the $750 or $1500 ACWIA fee and $4000 fee applicable pursuant to Public Law 14-113;
- The base L-1 petition fee would increase from $460 to $1,385, a 201% increase. The $500 Anti-Fraud fee would still apply for initial L-1 petitions;
- E and TN petitions would increase from $460 to $1,015, a 121% increase.
- The Form I-129 fee change would affect all classifications sought through the form, including H-1B, H-2A/B, E, L-1, O, P, and TN.
Increase fee for the H-1B cap registration: The fee would increase from $10 to $215 per registration, a 2050% increase.
New “asylum program” fee on Form I-129 and I-140: USCIS proposed adding a new $600 “Asylum Program Fee” to be paid by all petitioners filing Form I-129 and Form I-140 petitions. The I-140 filing fee would also be increased from $700 to $715.
Increase to premium processing timelines: USCIS proposed measuring the required adjudicatory timeline in business, rather than, calendar days, so instead of having 15 calendar days to review a case which is filed under the premium processing service, the timeline would give the USCIS three weeks to review such cases.
Decouple filing fees for adjustment of status and related ancillary benefits: USCIS proposed eliminating the current “bundling” of fees for Form I-485 adjustment of status, employment authorization (Form I-765), and advance parole (I-131) when the applications are filed concurrently. In other words, the proposal would require a separate filing fee for each form, even if the applications are filed together. Moreover, it proposed establishing a uniform filing fee for the submission of Form I-485, regardless of the applicant’s age. At present, applicants aged under 14 pay $750 to file their Adjustment of Status, whereas applicants aged 14 and older pay $1140. There is an additional biometrics filing fee of $85 for individuals aged 14 to 79 that applies to adjustment applicants.
Significantly increase EB-5 fees: The Form I-526 & Form I-526E fees (Immigrant Petition by Alien Entrepreneur/Regional Center Investor) would be raised from $3,675 to $11,160, a 204% increase. The Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) fee would be raised from $3,835 to $9,525, a 148% increase from the existing fee schedule.
Other proposed changes: DHS proposed incorporating biometrics fees into the main immigration benefit fees for nearly all case types. Moreover, DHS proposed introducing lower fees for applicants who choose to file online, where permissible.
Takeaway: It is unclear whether these regulatory changes will be finalized and implemented in time for the FY 2025 H-1B cap season commencing in March 2024 (which would bump the registration fee from $10 to $215). However, it does appear that these changes will occur in FY 2024 Q2. Nevertheless, employers and individuals should prepare for significant increases in the filing fees for many immigration benefit requests.