Wolfsdorf Rosenthal LLP

USCIS Raises Many Fees, Adds New Fees


In a final rule effective November 23, 2010, U.S. Citizenship and Immigration Services (USCIS) is making changes to its fee structure. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010, must include the new fees.

Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee. An application to replace a green card will cost $365 instead of $290; an immigrant petition for alien worker will cost $580 instead of $475; and an application for employment authorization will cost $380 instead of $340.

The premium processing fee will increase from $1,000 to $1,225. There will be a new fee for a civil surgeon designation of $615, and a new fee of $6,230 for an application for a regional center designation under the EB-5 immigrant investor pilot program.

USCIS noted that most EB-5-related comments the agency received in response to the proposed rule acknowledged the need for a regional center designation fee. The commenters expressed support for the fee, USCIS said, while also noting the need for improvements in processing times, collaborative efforts, and regulatory development. USCIS said it “continues to strive for improved processing times, has committed to improved stakeholder communications with quarterly stakeholder meetings, and will pursue regulatory development when practical.”

Several commenters on the proposed rule expressed concern that USCIS would raise fees during a time when many employment-based adjustment of status filers are experiencing long waits for their visas. USCIS attributed these long waits to visa retrogression in oversubscribed categories, noting that some have attributed it to USCIS processing inefficiencies and questioned a fee hike in the face of such delays. Others have attributed the long waits to the mismanagement of the visa allocation and coordination process between USCIS and the Department of State (DOS), and noted that many numerically limited visa numbers have gone unused.

USCIS said the notion that processing inefficiencies contribute to the long wait for visas “appears unfounded,” citing an average processing time of four months for an Application to Register Permanent Residence or Adjust Status, Form I-485. “This timeframe meets the processing goal set forth in the 2008/2009 fee rule,” USCIS said, adding that “[s]ignificant improvements have also been made in the visa coordination process between DOS and USCIS.” USCIS said that it confers with DOS monthly on pending visa demand, workload capabilities, and forecasting immigration trends. For example, USCIS noted, if its analysis finds a period of low demand in a particular visa preference category, DOS is able to respond by advancing the priority dates rapidly to ensure that all allotted visas will be used in a particular fiscal year. “USCIS and DOS continue to consider ideas and options to further improve the visa coordination process between the two and reduce the occurrence of visa retrogression or future unused numbers,” USCIS said.

Some commenters also suggested that USCIS recapture unused visa numbers from recent years as a way to reduce the backlog of pending adjustment of status cases. By recapturing these numbers, they suggested, visa priority cut-off dates would advance, allowing for many new filings and thereby increasing USCIS revenue without a need to raise fees. USCIS noted, however, that the authority to recapture any unused visa numbers from previous years resides with Congress and is not available to USCIS as an administrative remedy. Moreover, increasing the number of filings concurrently increases the amount of work to be performed, thus consuming the fees generated. “Even if legally possible, this solution would not be practical,” USCIS said.

Due to the long wait for visa numbers in particular categories, several commenters disagreed with a fee hike because costs would rise for intending immigrants either seeking to maintain their status in the U.S. or receiving ongoing interim benefits while awaiting visa numbers. USCIS noted, however, that U.S. employers may not recoup the costs required to file for a nonimmigrant employee or his or her extension or change of status; thus, the costs are borne by the employer and not the intending immigrant seeking to maintain status. Furthermore, USCIS said, applicants for adjustment of status who request advance parole and employment authorization are exempt from payment of additional fees while their I-485s are pending.

USCIS said it acknowledges that employment-based I-485 filers who filed under the old fee structure, before August 18, 2007, must continue to pay fees associated with interim benefits. USCIS noted that it has no control over DOS’s allocation of visa numbers or the yearly visa numerical limits established by Congress, but said the agency is “sympathetic to those who have pending adjustment of status applications in categories experiencing extreme visa retrogression.” To alleviate the burden, USCIS initiated a policy in June 2008 of a two-year validity period on employment authorization documents for these affected individuals, “effectively reducing ongoing costs for the benefit by an estimated 50 percent.” USCIS said it is further adopting a policy whereby “those same affected individuals may receive an advance parole document with a two-year validity period to further alleviate their filing burdens. The number of filers affected by FY 2007 visa retrogression continues to decline as visa numbers are allocated.”

One commenter suggested the creation of a variable fee structure depending on the wait for a visa number. USCIS said this would be impractical.

A number of commenters requested that USCIS offer multi-year employment authorization documents (Forms I-765) and travel documents (Forms I-131). Commenters cited the financial burden of submitting multiple applications for both services while their adjustment of status cases are pending. Some commenters also mentioned the administrative burden created when trying to time the filing of the documents so as not to produce instances of overlapping validity.

USCIS said it “has no interest in artificially limiting the validity periods of these documents,” pointing out that in many instances, these validity periods are directly related to the length of the underlying status that created eligibility for the associated benefits. “For example, a permanent resident who remains outside the United States for more than one year may be questioned on his or her return based on the validity of his or her Permanent Resident Card, Form I-551,” USCIS noted. “If that individual applied for a reentry permit before departure from the foreign country, and the application is granted, then the one-year validity of the Form I-551 is extended to two years.” USCIS noted that the current two-year validity of the reentry permit matches this period. Issuing it for a longer validity period “could create confusion and result in some permanent residents remaining abroad for too long and potentially jeopardizing their status. The validity period of a travel document or EAD is generally linked to the validity period of the relating immigration status.”

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