52 Congressional Lawmakers Protest USCIS’s Proposed Fee Schedule

USCIS’s proposal unfairly makes U.S. businesses pay for bad border policies

By Elizabeth Jacobs on May 25, 2023

In a letter addressed to the U.S. Department of Homeland Security (DHS), 52 congressional lawmakers responded to the agency’s recent proposal to increase U.S. Citizenship and Immigration Services (USCIS) fees and processing times for H-2A and H-2B visa petitions, calling the idea detrimental to businesses. The lawmakers, led by U.S. Reps. Mike Simpson (R-Idaho), Chris Pappas (D-N.H.), and David Valadao (R-Calif.) protested that USCIS’s proposed fee structure is detrimental to small and seasonal businesses alike, “with no foreseeable support or benefit”. DHS issued the proposal in January to adjust fees across the legal immigration system.

Under DHS’s proposed rule, these petitions would require accompanying fees of either $1,090 for H-2A nonimmigrant workers with 1-25 named beneficiaries or $530 for those without named beneficiaries, and $1,080 for H-2B nonimmigrant workers with 1-25 named beneficiaries or $580 for those without named beneficiaries. Currently, the fee for all is a flat $460. Beyond the general fee increases, the proposed rule from DHS would attach an additional $600 “Asylum Program Fee” on every petition filed by an employer seeking to hire a foreign worker and increase premium processing time from 15 calendar days to 15 business days. No fee is imposed on asylum seekers, however, or other case types to cover USCIS’s asylum program’s growing costs.

USCIS’s proposed fee schedule, which was published in January 2023, establishes or adjusts fees for various immigration and naturalization benefit requests. USCIS is required to engage in a periodic review and update the fees associated with the services it provides in order to remain solvent. Currently, approximately 95 percent of USCIS’s operations are fee-funded, with just a few programs paid for by congressional appropriations (i.e., taxpayers).

USCIS’s fee schedule is supposed to ensure that the fees collected for these services accurately reflect the cost of processing and adjudicating the applications rather than rely on taxpayer-funded appropriations. Rather than increasing fees proportionally to cover these costs across the immigration system, the Biden administration’s proposal instead transfers the cost of its growing humanitarian docket to U.S. employers while suppressing fee increases for many other case types.

In their letter, the lawmakers explained that:

The proposed rule asserts these shifts are the result of an ability-to-pay model, but in reality, these changes would burden small and seasonal U.S. businesses, not multinational billion-dollar corporations who utilize other visa categories such as the H-1B and L visas. Instead, the agency is planning to make farmers, landscapers, and small family businesses pay for the cost of the Asylum Program. The proposed fee increases, in addition to the Asylum Program Fee, is too much for small and seasonal U.S. businesses.

The lawmakers made clear that they “support USCIS restarting its entire rule making process” to avoid these fee increases.

The Center submitted a public comment in March opposing the proposed fee schedule on similar grounds. Specifically, CIS opposed DHS’s plan to transfer the cost of bad border policies to U.S. businesses that petition for foreign workers. CIS also encouraged USCIS to more strongly incorporate the beneficiary-pays principle, which asks beneficiaries to pay for the costs of the services they are provided, when determining how much applicants and petitioners should be paying for immigration benefit services administered by the agency, rather than disproportionately increasing fees for businesses, while suppressing fees for naturalization and other visa categories.

The Center, however, strongly cautions against rhetoric that suggests these two programs be expanded in order to meet employer demand. The United States is not experiencing a labor shortage that justifies increasing immigration levels to fill positions at often lower-than-national-average wages. Data from the Census Bureau and Bureau of Labor Statistics, analyzed by my colleagues Steven A. Camarota and Karen Zeigler, rather, demonstrates a consistent decline in labor force participation of U.S.-born workers. Camarota and Zeigler found that there were 1.9 million fewer Americans working in the fourth quarter of 2022 than in the same quarter of 2019 (pre-Covid).

The labor force participation rate decline is not reflected in the unemployment rate, per se, because that statistic does not include workers who are now considered entirely out of the labor force — neither working nor looking for work. Camarota and Zeigler’s analysis also revealed that the long-term decline in labor force participation rates is especially pronounced among lower-skilled and less-educated workers. The labor force participation rate for U.S.-born adults ages 18 to 64 without a bachelor’s degree was 70.3 percent in the fourth quarter of 2022, down from 71.4 percent in 2019, before the Covid-19 pandemic; 74.8 percent in 2006, before the Great Recession (beginning in 2008), and 76.4 percent at the peak of the expansion in 2000.

The falloff in labor force participation is not just an economic issue. There is clear evidence that the long-term non-participation is associated with numerous undesirable outcomes such as substance abuse, welfare dependency, mental health issues, crime, and early death.