USCIS’s Fee Rule Inappropriately Transfers the Cost of the Broken Asylum System to U.S. Employers

CIS recommends reforms to promote equity and efficiency in the legal immigration system

By Elizabeth Jacobs on March 17, 2023

The Center for Immigration Studies (CIS) submitted a public comment on Monday, March 16, 2023, in response to the U.S. Department of Homeland Security (DHS)’s proposal to update the U.S. Citizenship and Immigration Service (USCIS) fee schedule, titled “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements”. USCIS’s fee schedule sets the rates the agency charges applicants and petitioners who are requesting immigration benefit services from the agency.

In our comment, CIS opposed DHS’s plan to transfer the cost of the border crisis to U.S. businesses that petition for foreign workers. CIS also encouraged USCIS to 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.

Specifically, CIS recommended that USCIS set its fee levels to recover the costs of adjudication for most immigration benefit services (excluding certain humanitarian or statutorily exempt categories), limit fee waiver eligibility where inappropriate or unnecessary, and maintain its discount for online filing, which will increase government efficiency and transparency in the long run. In 2020, USCIS estimated that the agency’s current fee waiver policies would result in USCIS forgoing almost $1.5 billion dollars in revenue annually. USCIS relies on fee-paying applicants and petitioners to pay inflated fees to make up for this loss.

Additionally, CIS urged DHS to make reforms to deter illegal immigration and close loopholes in the asylum system in order to reduce costs associated with administering USCIS’s asylum program as an alternative to its plan to impose a new “Asylum Program Fee”, which would be paid for exclusively by U.S. employers (of any size) to subsidize the border crisis. CIS also recommended that USCIS impose a fee for the Form I-589, Application for Asylum and Withholding of Removal, and provide a fee waiver application for low-income applicants to avoid conflicts with the United States’ nonrefoulement obligations. Currently, USCIS imposes no fees to cover the costs of credible fear screenings, reasonable fear screenings, or asylum applications.

Finally, CIS explained that DHS must also terminate DACA and USCIS’s unlawful parole programs. The unauthorized programs violate federal immigration law and divert USCIS resources from legitimate visa programs.

USCIS is required to conduct a biennial review of the fee schedule to determine whether current immigration benefit fees generate sufficient revenue to fund the agency’s anticipated operating costs. The agency is primarily funded by immigration benefit request fees charged to both applicants and petitioners.

USCIS reported that without an adjustment to its fee schedule, the agency would be subject to an average annual deficit of $560 million. These costs do not include limited appropriations provided by Congress at the expense of U.S. taxpayers. USCIS published its last fee schedule in 2020 following its fiscal year 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. The Biden administration’s proposed fee rule, published on January 4, 2023, is intended to replace the 2020 fee rule entirely — albeit retaining many changes included in 2020 fee rule to the proposed fee schedule.

In the time since the 2020 fee rule has been issued, however, USCIS has endured serious fiscal challenges that have threatened the agency’s ability to conduct operations and efficiently adjudicate immigration benefits. Most severely, international travel restrictions and fears related to the Covid-19 pandemic stunted USCIS’s ability to collect fees and efficiently process immigration benefit requests. The historic crisis along the southern border has also imposed unsustainable strains to USCIS, which has received record numbers of credible fear claims since 2021.