Federal Review of DHS Fee Rule Expected to Result in Significant Hikes for Employment-Based Petitioners

The Department of Homeland Security (DHS) has submitted a final fee regulation to the Office of Management and Budget (OMB) for federal review, anticipating substantial increases for various immigration benefit filings. The proposed changes include separate fees for H-1B, L-1, and other nonimmigrant case types, an increase in the H-1B cap registration fee, additional fees on Forms I-129 and I-140, extended premium processing timelines, and unbundling adjustment of status and ancillary benefit fees. The final regulation is expected to be published in April 2024, though an earlier finalization is possible.

The last adjustment to the USCIS fee schedule was in December 2016, with a 21% average increase. In 2020, a fee rule proposed by the Trump administration faced legal challenges and was not implemented. In January 2023, USCIS proposed a fee schedule, now finalized and under regulatory review, with significant cost hikes for employment-based petitioners.

Proposed Changes:

Different fees for nonimmigrant visa classifications on Form I-129, with substantial increases for H-1B, L-1, E, and TN petitions.

Significant rise in the H-1B cap registration fee, reaching a 2050% increase.

Introduction of a new $600 “Asylum Program Fee” for employment-based visa petitions on Forms I-129 and I-140.

Extension of premium processing timelines by measuring adjudication periods in business days.

Separate fees for adjustment of status applications and related benefits, eliminating current bundling.

Steep fee increases for certain EB-5 immigrant petitions, such as Form I-526 and Form I-829.

Incorporation of biometrics fees into main immigration benefit fees, with a separate fee for Temporary Protected Status (TPS) applications.

Introduction of lower fees for online filing in specific cases.

Next Steps:
Upon OMB clearance, the final rule will be published in the Federal Register, outlining the implementation timeframe. Employers should prepare for potential fee increases for immigration benefit requests, with uncertainty about the rule’s finalization before the FY 2025 H-1B cap season in March 2024. Additionally, starting February 26, 2024, USCIS is raising premium processing fees for various petitions and applications.


Source: Fragomen