After Court Halted the Oct 2 USCIS Final Rule fee hike, Congress has approved a huge Premium Processing (I-907) fee increase and expansion, which also includes fees for new categories: I-765 (EAD), I-140(NIW), and Some I-539 (Change/Extend Status)

To recover operational costs and generate revenue, the U.S. Citizenship and Immigration Services (USCIS) proposed a new fee schedule that got implemented starting Oct 2, 2020. For immigrants and their employers, the new rule has some good news and bad news. The good news is that more applicant types are approved for USCIS premium processing. But the bad news is that the fee for express processing has increased for all applicant types.

Premium Processing

“Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker” (USCIS). The USCIS requires people looking for premium processing to sign form I-907. Petitioners can file the form with their form I-129 or I-140 or they can also file the I-907 later.

The processing time for the application used to be 15 calendar days, starting from the day USCIS receives the application. And, if more information was needed from the applicant, a new 15-day period would start when the responses were received. The new proposed period blocked by the court was 15 business days, which would have increased processing times.

Implementation

The premium fees and their expansion was signed into law by Donald Trump on October 1, 2020, as the Emergency Stopgap USCIS Stabilization Act. According to the act, the new USCIS premium processing fee for the majority of applicant types is $2500. Two exceptions do these rules are the H-2B (Temporary Non-Agricultural Workers) and R-1 (Religious Workers) — the fee for these categories is set at $1500. The effective date of the final rule was October 2, but it would have taken the USCIS multiple weeks before they could start accepting requests for the expanded categories.

The categories that are now part of the premium processing for employment-based applications include employment authorization (I-765) and change or extension of status by dependents of certain visa beneficiaries, including H-1B. In the case of immigration benefits for the new premium processing services, the fee for processing will be calculated with a detailed method.

Here is a breakdown of the new USCIS premium processing time and fees.

I-129: The fee does not exceed $2500 and the processing time is 15 calendar days for H-1B, H-2B, E-1/E-2, L-1A/L-1B, O-1, P-1, and TN. The fee is $1500 and the processing time is 15 calendar days for H-2B and R-1.

I-140: The new fee is $2500 and the processing time is 15 calendar days for E-B1A, E-B1B, and PERM-based E-B2/E-B3. The fee is not in excess of $2500 and the processing time is 45 days for B-B1C and EB2.

1-539: E, F-1, H, J-1, L, M-1, O, P, and R all have a processing time of 30 days and a fee that is not more than $1750.

I-765: The EAD is capped at $1500 and the processing time is 30 days.

Other Changes

The USCIS premium processing fees were one part of the new fees. The USCIS proposed an increase in fees for a variety of applicant types, the Final rule, including H-1B and L visa, and fee waiver restrictions. It is important to note that an increase in the revenue would not have affected the backlog of cases or the processing times. “USCIS anticipates having insufficient resources to process its projected workload. USCIS estimates that it will take several years before USCIS backlogs decrease measurably,” as mentioned in the proposed rule.

Court Ruling

The implementation of the other changes was dealt a blow last week when a federal judge paused the new USCIS fee rule before it became effective, reported Forbes. The Plaintiffs argued that the new rule will have a negative impact on low-income immigrants. The court agreed with the Plaintiffs’ argument that it is not fair to compare the final rule with the data following previous fee hikes because this rule “combines increases with a correspondent decrease in the ability to obtain a waiver for the fees.”

Granted the USCIS will struggle to maintain its current workforce with its current budget, but – like the consistent fee hikes in the past few years have shown – the solution may be something other than increasing fees. The increased burden on low-income individuals not only affects their ability to get expedited services but may prove counterproductive. The solution may be in changing the USCIS structure to be only partially funded by fees.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

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