The Policy Decisions Embedded in the New USCIS Fee Schedule

U.S. Citizenship and Immigration Services (USCIS)’s new fee rule, which was published at the end of January 2024, is set to go into effect on April 1, 2024. USCIS last published an updated fee schedule in 2020, but because of litigation, those new fees did not go into effect, and the agency has not updated the fees it charges petitioners and applicants for immigration benefits since 2016.

USCIS depends on fees to operate, with only approximately 4 percent of operations funded by congressional appropriations. The agency derives its authority to collect fees from the Immigration and Nationality Act (INA), at section 286(m), which instructs USCIS to establish or change, collect, and deposit fees into an account, called the Immigration Examinations Fee Account (IEFA) to fund the cost of “fairly and efficiently adjudicating immigration benefit requests”, including those provided without charge to refugee, asylum, and certain other applicants or petitioners.

The Biden administration is using this new fee schedule to promote certain policy objectives rather than to fairly cover costs of providing services. Here’s what you need to know about the policy choices that are embedded within the agency’s new fee schedule.

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Podcast Episode 148: Is the New USCIS Fee Schedule Fair?

1. Almost All Form Types Will See an Increase in Fees — but the Increases Are Not Proportional Across the Immigration System

In crafting how the USCIS fee schedule will be structured, the Biden administration decided to largely abandon what is often referred to as the “beneficiary pays” principle, which requires each beneficiary to cover the cost of the services they are requesting, in favor of relying more heavily on an “ability to pay” principle. This means that DHS has decided to generally set fees for immigration services that benefit individuals who typically have deeper pockets (such as employers and entrepreneurs) disproportionately higher to offset providing immigration benefits that are typically provided to individuals with less wealth (notably, much of USCIS’s growing humanitarian docket) at a discount or for free. DHS also suppressed fees for immigration benefits that the Biden administration has identified as priorities, i.e., finds politically favorable to promote, such as naturalizations and adoptions.

Some of the most drastic fee increases will be imposed on employment-based immigration benefit requests. For example, the fee rule will charge most private employers who want to hire H-1B workers 70 percent more, 201 percent more for employees on L-1 petitions, and 129 percent more for aliens on O-1 petitions. (H-1B petitions increase from $460 to $780, L-1 petitions increase from $460 to $1,385, and O-1 petitions increase from $460 to $1,055.)

Conversely, USCIS will be subsidizing or otherwise suppressing fees for benefits the Biden administration has chosen to prioritize. Fee increases for naturalizations, adoptions, and many humanitarian form types will not even keep up with inflation, which has increased by about 26.37 percent in the United States since January 2016. This means that unless USCIS successfully reduced the relevant labor and overhead costs of these adjudications on the agency (which the agency has not claimed to have done), all fees that have been increased by less than 26.28 percent are being offered at a discount relative to the cost of services determined in 2016 (the last time DHS updated the fee schedule).

The immigration benefits that will be offered at suppressed fees include:

• I-90, Application to Replace Permanent Resident Card;
• I-130, Petition for Alien Relative;
• I-131 Application for Travel Document;
• I-131, Refugee Travel Document;
• I-140, Immigrant Petition for Alien Workers;
• I-192, Application for Advance Permission to Enter as Nonimmigrant (USCIS);
• I-193, Application for Waiver of Passport and/or Visa;
• I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
• I-539, Application to Extend/Change Nonimmigrant Status;
• I-600/I-600A, Petition to Classify Orphan as an Immediate Relative;
• I-612, Application for Waiver of the Foreign Residence Requirement;
• I-687, Application for Status as a Temporary Resident;
• I-698, Application to Adjust Status from Temporary to Permanent Resident (under section 245A of the INA);
• I-751, Petition to Remove Conditions on Residence;
• I-765, Application for Employment Authorization;
• I-800/I-800 A, Petition to Classify Convention Adoptee as an Immediate Relative;
• I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal;
• I-941, Application for Entrepreneur Parole;
• N-300, Application to File Declaration of Intent;
• N-336, Request for Hearing on Decision in Naturalization Proceedings;
• N-400, Application for Naturalization;
• N-470, Application to Preserve Residence for Naturalization Purposes;
• N-565, Application for Replacement of Naturalization/Citizenship Document;
• N-600, Application for Certificate of Citizenship;
• USCIS Immigrant Fee; and
• Genealogy Record Requests.

2. USCIS Is Giving a Big Discount to the Majority of Naturalization Applicants

In addition to suppressing fees for naturalization services and other form types, USCIS went further to subsidize the naturalization process by offering a nearly 50 percent discount (a savings of $380, or $330 if the applicant files online) to all N-400, Application for Naturalization, applicants who demonstrate that their household income is 400 percent of the Federal Poverty Guidelines (FPG) or less.

Poverty is determined by the federal government each year by adjusting the prior year’s poverty threshold by inflation. The threshold considers family size and there are some adjustments made for the elderly and residents of Alaska and Hawaii. An individual is considered to have an income of 400 percent of the FPG if they make $60,240. A household size of two people, however, can make as much as $81,760 annually, a household size of three people can make as much as $103,280 annually, and a household size of four people can make as much as $124,800 annually and still qualify for this discount.

DHS stated that it is offering this discount after considering the comments it received from the public on the draft fee rule to “provide additional relief to longtime residents who struggle to pay naturalization fees without requiring further fee increases for other forms to offset the cost”. DHS continued that, “The increased income threshold for a reduced naturalization fee will also enable the United States to further benefit from newly naturalized citizens, including their greater civic involvement and tax revenues.”

It should be noted that all green card holders are eligible to work in the United States and most already pay taxes. While it may be true that some green card holders may be able to increase their income because they have received citizenship, this potential is limited to government employment or other, uncommon forms of sensitive employment opportunities that are restricted from non-citizens. Nevertheless, the potential increase in tax revenue is speculative while the need for USCIS to balance its own budget is anything but. DHS, then, is essentially stating that its primary concern is increasing the number of people eligible to vote or hold public office.

The half-priced naturalization application fee is a much larger handout than DHS has let on. Based on CIS’s analysis of the Annual Social and Economic Supplement of the Current Population Survey from 2020, we estimate that at that time there were 10.4 million permanent residents in the United States who had lived in the country long enough to naturalize.¹ Of those who are “eligible to naturalize”, we find that roughly 65 percent have incomes below 400 percent of poverty and could potentially qualify for the half-price fee.

How much will the policy change reduce what is collected from naturalization applicants? The current fee to file for naturalization, including biometric services, is $760 if done by paper and $710 for those who file online. Under the new fee schedule, those with an income that is 400 percent of the FPG or below would pay $380, whether filing online or by paper. While we do not have data on the breakdown of paper vs. online applications, if we assume a 50-50 split, then the reduction in fees would average $355 per applicant.

In 2023, USCIS naturalized 878,500 new citizens. Using this number and assuming 65 percent of future applicants get the $355 reduction, the total loss in revenue would be $203 million. Of course, this estimate is heavily dependent upon the number of naturalization applications USCIS will receive in the future.

3. The New Fee Rule Will Transfer Some of the Costs of the Border Crisis to U.S. Employers That Want to Hire Legal Foreign Workers

In addition to significantly increasing fees for employers that petition for foreign workers and alien investors, the proposed rule adds a new $600 “Asylum Program Fee” to employers who petition for alien workers. To be clear: This is not a fee to file an asylum application. DHS says this is a separate, additional fee that will be used primarily to fund the Biden administration’s implementation of its March 2022 asylum processing rule, titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, 87 Fed. Reg. 18078 (March 29, 2022). This rule changes border procedures to divert asylum applications that are submitted through the credible fear process from the U.S. Department of Justice (DOJ) immigration court system to the already severely backlogged USCIS Asylum Division.

In 2023, DHS estimated that its new asylum processing regulation will cost the agency approximately $426 million annually to implement. DHS also clarified that the Asylum Program Fee it plans to charge employers may also be used to fund part of the costs of administering the entire asylum program and would be due in addition to the fee those petitioners would pay using USCIS’s standard cost and fee calculation methodologies.

When finalizing the fee rule, USCIS made a few important changes regarding how it plans to fund the asylum processing rule. First, instead of charging all employers the same $600 fee for every application or petition filed to USCIS on behalf of a foreign worker, the rule gives a break to small employers who will only be asked to pay an additional $300 per filing and will exempt nonprofit organizations from the asylum fee all together. Small employers are defined in the rule as employing 25 people or less.

To be clear, the fee will apply to all for-profit U.S. employers who petition for foreign workers with no regard to whether they have any connection to the asylum services. It is also important to clarify that this fee will be charged on top of all other fees already required by USCIS for the processing and adjudication of foreign workers’ applications and petitions. The additional fee will be added to each filing an employer makes in the process of petitioning for a worker. One immigration attorney referred to the higher price tag for employment visas as a “straight-up money grab” with no connection to the actual costs of the program.

4. The Biden Administration Is Using the New Fee Rule to Pressure Congress to Provide USCIS Funding

USCIS leadership appears to be using its new fee rule to inspire employers who are outraged by the dramatic increases to serve as a force-multiplier to lobby for USCIS appropriations. In the final rule, the agency subtly noted that, “[I]f Asylum Division expenses are greatly reduced or funded by a Congressional appropriation, and USCIS determines the Asylum Program Fee is not needed, USCIS can pause collection of the Asylum Program Fee using the authority in 8 CFR 106.3(c). The costs for administering the asylum program not funded by the revenue collected from the Asylum Program Fee will continue to be funded by other fees.” Messaging within USCIS’s FY 2023-2026 Strategic Plan, moreover, supports the Biden administration’s commitment to expanding humanitarian benefit eligibility (i.e., through the creation of parole programs and the Biden administration’s historic expansion of TPS) that are not funded by Congress and do not bring in much funding for the agency.

Congress, however, deliberately created USCIS as a fee-funded agency to mitigate the U.S. immigration system’s burden on U.S. taxpayers. Indeed, as recently as 1996, Congress clearly declared in its policy statement in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) that “self-sufficiency” has been “a basic principle of United States immigration law since this country’s earliest immigration statutes and that it should continue to be a governing principle in the United States”. This general, but foundational, principle also guides the government’s execution of the public charge statute, INA § 212(a)(4), which prohibits the admission of aliens whom the government determines are “likely at any time to become a public charge”.

5. USCIS Responded to Complaints from Small Businesses and Nonprofits and Gave Them Big Breaks on Fees

After receiving feedback from the public, USCIS appears to have responded to pushback from advocacy groups, small businesses, and nonprofit organizations expressing their concerns about rising filing costs under the Biden administration’s “ability to pay” approach. Accordingly, the Biden administration extended this “ability to pay” principle to require USCIS to also suppress fee increases for small businesses and nonprofit organizations.

For example, employers who file an I-129 must pay 70 percent more in filing fees (from $460 to $780). Small employers and nonprofits, on the other hand, will continue to pay the old rate ($460) for each I-129 filed. Moreover, employers who file the same form for a named H-2A beneficiary must endure a 137 percent increase in filing fees (from $460 to $1,090) — while small employers and nonprofits will only see an 18 percent increase (from $460 to $545). This is also true for employers filing on behalf of an alien seeking an O-1 visa (for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics). Here again, small employers and nonprofits will only be asked to pay 15 percent more to file with USCIS (from $460 to $530), compared to larger employers, that will see a 129 percent increase in fees (from $460 to $1,055).

As I mentioned above, the new fee rule also reduced the “Asylum Program Fee” costs for small businesses and nonprofit organizations. After considering critical feedback from the public, USCIS will only ask $300 from small businesses for each filing submitted to USCIS for a foreign worker to fund the Biden administration’s asylum processing rule, and nothing at all from nonprofits seeking to hire foreign workers.

6. The New Fee Rule Codifies Obama-Era Policy Regarding Fee Waivers for Certain Low-Income Beneficiaries

The final rule also codifies the Obama-era Fee Waiver Policy criteria that USCIS may grant a request for a fee waiver if the requestor demonstrates an inability to pay based on receipt of a means-tested benefit, household income at or below 150 percent of the FPG, or extreme financial hardship into regulation. Notably, using this fee rule, USCIS returned to its policy of allowing applicants to request fee waivers without submitting a fee waiver form. A request need only be made in writing to be considered and approved by an immigration officer. Codifying this policy into regulation will make it more difficult for a new administration to change how the agency handles waivers.

7. The New Fee Rule Expanded Which Immigration Benefits Are Fee-Exempt

While the final rule did not expand which types of immigration benefits may be subject to a fee waiver, per se, it did significantly expand which immigration benefits may be exempt from fees all together (i.e., offered for free for all applicants). See Table 5B on pp. 6221-6227, here, for a list of forms that will now be fee-exempt under the new fee schedule.

The difference between a fee waiver and a fee exemption is subtle, but important. From USCIS’s perspective, offering fee exempt benefits reduces the agency’s workload by eliminating the need for officers to adjudicate fee waiver requests. Fee exemptions, however, significantly reduce the agency’s ability to recoup the costs associated with providing these services and transfer these costs to other form types.

The distinction is also significant from an alien’s perspective if they have a genuine inability to pay. Again, fee waiver requests require an applicant to demonstrate to USCIS that they are unable to pay to receive such benefit. For many immigration benefits, however, demonstrating an inability to pay should be considered a negative factor in considering whether an applicant is inadmissible under INA 212(a)(4). That is to say that it may demonstrate that the alien is subject to the public charge ground of inadmissibility or deportability of the INA (codified at sections 212(a) and 237(a), respectively).

DHS, in its final 2022 public charge rule, clarified that while DHS is only “collecting initial information from applicants as related to the factors as outlined in the new 8 CFR 212.22(a) and the accompanying application, which does not ask for information regarding past requests for and receipt of fee waivers ... DHS may generally consider all evidence and information in the record that is relevant to making a public charge determination, including evidence that the noncitizen previously applied for and received a fee waiver.” Given the limited definition this rule applies to the term “public charge”, fee waiver receipt will unlikely, on its own, be a determinative factor in a public-charge analysis. DHS, however, made clear that its officers will “consider all information or evidence in the record before an officer”, including fee waiver evidence.

If a form type is fee exempt, on the other hand, rather than just waivable, the result for an applicant will be the same: They will not have to pay a fee to have the benefit request adjudicated. But the applicant will not have to submit a fee waiver request or evidence regarding their ability to pay at any point to avoid paying a fee.

Of course, fee-paying applicants and petitioners must cover the costs of fee waivers and fee exemptions for services USCIS provides. In recent years, USCIS has transferred significant costs to fee-paying applicants and beneficiaries because of an overbroad fee waiver policy, and estimated foregone revenue has increased significantly. USCIS reported forgoing $191 million in revenue in its FY 2010/2011 fee review, $613 million in revenue in its FY 2016/17 fee review, and an astounding $1.494 billion in its FY 2019/2020 fee review.² In DHS’s 2023 proposed rule, DHS did not report how much revenue USCIS anticipates forgoing as a result of fee waiver projections.

8. The New Fee Rule May Encourage More People to File Their Applications Electronically

The new fee rule will also provide a $50 discount for applications that are filed online rather than submitted in the paper form. While DHS stated that encouraging online filing is “sound policy”, the agency determined that a $50 discount was appropriate based on its estimated cost savings. USCIS determined that electronic filing saves the agency between $10 to $110, depending on the form type, compared to paper filing. To simplify the payment process, the final rule provided a $50 discount for all forms filed online with USCIS, regardless of the actual cost of adjudication. The $50 discount, however, is not applied in certain circumstances, such as when the form fee is already provided at a substantial discount from actual adjudication costs or USCIS is restricted on how much it can charge for an immigration benefit by law.

Transitioning to electronic filing for immigration benefit requests is a necessary step to improving agency efficiency as well as transparency in the immigration system. Expansion of USCIS’s online filing systems can save the agency significant costs associated with paper storage, transport, and management, as well as minimize inter-agency red tape and decrease overall processing times for adjudications. Equally important, collecting data electronically rather than using a paper-based system will facilitate data sharing with the public and relevant federal, state, and local government agencies.

9. The Biden Administration’s Abuse of Parole Is Partly to Blame for Rising Costs and USCIS’s Severe Financial Woes

In the summer of 2023, the USCIS Ombudsman, a DHS office that is entirely independent from USCIS, emphasized in its annual report to Congress the severe drain that the Biden administration’s expansion of its humanitarian docket has imposed on the legal immigration system. USCIS has finite resources and must divert immigration officers from existing workloads to adjudicate parole and related work authorization applications.

Since 2021, the Biden administration has created at least eight new parole programs and expanded at least three existing parole programs to facilitate the entry of inadmissible aliens into the United States. These programs allow inadmissible aliens to remain and work in the United States for periods of at least two years, and include the Central American Minors program and parole programs specifically designed for nationals of Afghanistan, Colombia, Cuba, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Venezuela, and Ukraine.

The Biden administration’s expansive use of “programmatic” parole is not only unprecedented, but also violates the language and history of the parole statute. Congress has only conferred to DHS narrow authority to parole aliens into the United States on a “case-by-case” basis for “urgent humanitarian reasons” or “significant public benefit”. Parole is explicitly not meant to circumvent the caps or mechanisms set by Congress, or otherwise to be used as a supplement to immigration policy, as it is currently being employed to do.

10. The 2020 Fee Rule Was Stopped by a Federal Court; the 2024 Rule Could Be Subject to Legal Challenges, too

While the 2016 fee rule is the most recent one to have gone into effect, it is not the agency’s most recent attempt to raise fees. DHS most recently adjusted the USCIS fee schedule during the Trump administration in 2020, following USCIS’s FY 2019/2020 review. At that time, DHS increased USCIS’s fees by a weighted average of 20 percent, which was slightly less than the average weighted increase imposed by the 2016 fee rule issued by the Obama administration (21 percent).

The 2020 fee rule, which was scheduled to become effective on October 2, 2020, was preliminarily enjoined and, consequently, never implemented by the agency. Rather than defend this rule, the Biden administration issued the 2024 rule to replace the 2020 fee rule entirely — albeit retaining many of the changes included in the 2020 rule.

Whether this rule will be subject to a legal challenge remains to be seen, but employers and organizations subject to the rule’s disproportionately high fee hikes are likely to sue. Bloomberg Law spoke with Gray Delany, executive director of the Seasonal Employment Alliance, an advocacy group that represents companies that hire temporary workers. “It is the Administration’s job to secure the border and Congress’ job to fund it,” said Delany “Law abiding employers should not be forced to shoulder the costs of solving a problem they did not create and do not benefit from.” Bloomberg Law reported that “the group is exploring ‘all avenues’ to challenge the fee hikes, especially the asylum surcharge”.

Conclusion

The legal immigration system must operate efficiently and with integrity to maintain (or for some, earn) the nation’s trust. By taking an “ability to pay” approach to structuring USCIS’s fees and suppressing fee increases for immigration benefits it hopes to promote, the Biden administration is using its fee schedule as a tool to promote its own policy objectives rather than to fairly recoup costs of services. If the USCIS leadership is serious about bolstering the legal immigration system and maintaining reasonable processing times for immigration services, it must focus its resources on programs that have been authorized by Congress.

End Notes

¹ We arrive at this estimate by first identifying the aliens with lawful immigration status in the survey. We do this by first excluding immigrants who are almost certainly not without a lawful immigration status (e.g. spouses of native-born citizens or veterans). The remaining candidates are weighted to replicate known characteristics of the population without lawful immigration status (e.g. population size, age, gender, region or country of origin, state of residence, and length of residence in the United States) based on estimates developed by the Center for Migration Studies (CMS), including its estimates of educational attainment. For more discussion of our method of identifying illegal immigrants, and by extension legal immigrants, in the survey, see Steven A. Camarota, Jason Richwine, and Karen Zeigler, “The Employment Situation of Immigrants and Natives in January 2021: Unemployment and Labor Force Participation Among the Foreign-Born and Native Born”, Center for Immigration Studies, March 1, 2021.

² 84 Fed. Reg. 62280, 62298 (November 14, 2019).