Just days before a massive filing fee increase was set to go into effect for naturalization applications, and before a first-in-history fee for asylum applications was to be imposed, a federal judge granted a nationwide temporary reprieve. See the 35-page order here.
The Trump administration sought to increase the filing fees for naturalization by over 80% , eliminate most fee waivers for low-income immigrants, and create new financial barriers for immigrants seeking asylum protection in the U.S. The fee increases, which USCIS claims are necessary to subsidize the fiscally-challenged agency, were originally scheduled to go into effect on October 2, 2020.
Federal Judge Rules that Fee Increase Will Endanger Vulnerable Immigrants
On September 29, 2020, U.S. District Judge Jeffrey White of the Northern District of California, appointed by George W. Bush, ruled that the plaintiffs are likely to succeed on some of their claims, and wrote:
“the public interest would be served by enjoining or staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and low-income applicants from applying for immigrant benefits, will block access to humanitarian protections, and will expose those populations to further danger.”
The plaintiffs, which included several non-profit organizations which serve the immigrant community, also argued that defendant Chad Wolf, Acting Secretary of U.S. Department of Homeland Security, was improperly appointed, and therefore his actions, such as proposed fee increases, are unlawful.
Plaintiffs also made the case that the USCIS fee rule violates the Administrative Procedure Act, which governs federal agencies.
The Department of Homeland Security is expected to appeal.
Immigrant Rights Groups Applaud the Ruling
One of the plaintiffs in the federal lawsuit, Immigrant Legal Resource Center, issued the following statement on the court’s order:
“USCIS’ Fee Rule is unlawful and incredibly destructive, and we applaud the court’s decision to protect millions of immigrants and their families.
The Rule, which disproportionately harms people of color, is a blatant attempt by the Trump administration to create financial barriers for asylum seekers, families, and would-be citizens in order to prevent them from obtaining United States residence or U.S. citizenship.
This is immoral, classist and a blatant violation of the Immigration and Nationality Act. The injunction will ensure that millions of low income immigrants, applicants for naturalization, asylum seekers, survivors of domestic violence and survivors of human trafficking will be able to affordably apply for the immigration benefits they are eligible for.”
What This Means for Immigrants Seeking Benefits
Until further notice, applicants will not be subjected to the fee increases as outlined in the regulation. It is expected that USCIS will issue an update regarding the impact on the order on new editions on forms that were to be implemented on October 2, as part of the fee increase.
Monitor this issue closely and refer to the USCIS website]\ for updates.
What Is the Trump Administration Really Trying to Do With USCIS Fee Increases?
While we hope that the court makes a final and permanet ruling that strikes down the USCIS fee rule, it is instructive to review what the Trump administration is really up to here.
Its clear that the Trump adminisration is at it again, working hard to to marginalize the immigrant community.
The average weighted fee increase contained in the rule is 20%.
Shockingly, in its abandonment to our history in protecting refugees, asylees and immigrants with low income, USCIS has also introduced a fee for asylum applications and an elimination of many existing fee waivers.
On September 2, 2020, USCIS issued this policy guidance.
Here are some of the key changes in the rule:
N-400 Application for Citizenship
The N-400 naturalization application fee will increase from $640 to $1160 for online applications and $1170 for paper applications: an 83% increease!
Not only will applicants pay higher N-400 filing fees, but they also will not have the option to apply for a fee reduction ($320), a whopping 266% increase in the filing fee, for those whose income is greater than 150% and less than 200% of the poverty level.
USCIS has also eliminated the N-400 fee waiver for those with income greater than 200% of the poverty level.
Justifying the increase, the USCIS says that the fee was held below cost in the past and the new fee will reflect the full cost of providing the service.
However, this fee increase does not consider how much of a barrier finances are to immigrants looking to naturalize. Financial and administrative barriers stand in the way of naturalization for 13% of Mexican and 19% other lawful immigrants, according to a 2015 survey, published by Pew Research.
Besides the financial burden, the new fee penalizes immigrants who abide by the law and forces them to turn to predatory financing to afford the USCIS fee.
It is a fact that naturalization offers many economic and social benefits to legal immigrants.
- Research shows that naturalized citizens have higher employment rates and can earn up to 70% more than noncitizens;
- Full protection of the U.S. Constitution;
- Protection from potential deportation;
- Ability to travel overseas and live outside of the U.S. without fear of abandoning the right to the green card;
- Ability to vote and have an impact on elections;
- Ability to sponsor parents, siblings and married children for permanent residency; and
- Ability to work in more U.S. government-related jobs that require security clearances;
Trump’s anti-immigration stance has been detrimental to the cause of naturalization. Instead of facilitating applicants with alternatives to traditional procedures, such as virtual interviews in place of in-person interviews, the relevant authorities have chosen to not be proactive, resulting in huge backlogs of cases.
Discouraging naturalization not only hurts immigrants, by reducing work and social opportunities, but it hurts the nation. President Trump is installing unnecesary barriers to naturalization — creating a “virtual” wall — separating “us” from “them.” Rather than uniting the nation under one banner, he continues to divide us.
Creating a wealth test to become an American citizen is ….well…un-American!
I-129 Temporary Worker Visa Applications
In the proposal, USCIS has also proposed to split the I-129 Petition for a Nonimmigrant worker (application cost of $460) into multiple forms, with most forms having a higher fee. For instance, the I-129H2A—Named Beneficiaries application fee will be $850, an 85% increase. The change would apply to all classifications sought through the Form I-129.
I-485 Application for Adjustment of Status to Permanent Residency
The USCIS fee structure will also change for the Form I-485 applicants. An unbundling of filing fees will mean that they will have to pay extra for work authorization (Form I-765) and their travel document (Form I-131). This new structure will result in nearly doubling the fee, which will be $1130 for I-485, $550 for I-765, and $590 for I-131.
Not Welcome Sign: Decrease in Legal Immigration
The “not welcome” sign is flickering from the Statue of Libery.
At a time when legal immigration is decreasing to the U.S., the White House seems determinated to accelerate the decrease.
These fee increases come at a time when there has been a significant decrease in legal immigrants admitted to the U.S. According to the National Foundation for American Policy (NFAP), there was a 7.3% (86,894 people) drop in immigration from FY 2016 to FY 2018, and the majority of the decrease has been in the immediate relatives of U.S. citizens, including children, spouses, and parents, reported Stuart Anderson for Forbes.
Certain countries, including Mexico and China, are over-represented in the declined applicants with a decrease of 7.3% for Mexico and 20% for China, adds Anderson. Numbers in other segments of immigration also indicate the direction taken by the Trump administration:
The annual ceiling for refugees and asylum seekers is set by the President in consultation with Congress. The 30,000 ceiling for FY 2019 was the lowest since the creation of the resettlement program in the 80s, according to Migration Policy. There has also been a marked change in the number of people approved for asylum, with a decrease in 43% from FY 2016 to 31% in FY 2019. The ceiling is at 18,000 for FY 2020, adds the report.
Our Immigration System Is Broken
At a time when USCIS should want to increase its revenue by encouraging more applicants to apply, the Government is doing the exact opposite.
And it needs the money, that’s for sure.
Unlike most government agencies, the USCIS relies on fees for its funds. In FY 2019, the USCIS fee carryover went into the negative for the first time since 2007, and it is expected to reach $1.5 billion this year, says Migration Policy research. The researchers add that a decreasing petition rate and greater processing times are two important factors in the turnaround: a one million drop in petitions in FY 2018 resulted in a $152 million drop in fees, and continued drop in a petition with highest fees in FY 2019 resulted in a $13 million drop. At the same time, money spent on vetting applicants and detecting benefit fraud increased significantly (an increase of $96 million for vetting and $202 million for fraud from FY2016 to FY 2020).
Take Action Now and Apply for Immigration Benefits If You Are Eligible.
Apply for naturalization now, if you are eligible. The future fees are uncertain and you can lock in the lower rate by filing now.
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.