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Despite Delays and Other Issues, USCIS Wants to Increase its Fees!!!

On Behalf of | Apr 19, 2023 | Immigration

Sometimes I just need to get up on my soapbox and speak loudly.  Having said that, I write this piece with a little trepidation.  Why?  I’ve been working in the immigration world for a long-time now, either on Capitol Hill or in private practice.  Thirty-five years to be exact.  Along the way I’ve been fortunate to meet some incredible professionals at U.S. Citizenship and Immigration Services (“USCIS”), Immigration & Customs Enforcement (“ICE”) and U.S. Customs & Border Protection (“CBP”).  These individuals do exceptional work, and I consider them my friends.

So, writing a piece that may be interpreted by my friends as disparaging USCIS for proposing yet another fee increase feels a little uncomfortable.  But it needs to be done (and I think they’ll understand … and agree).

U.S. immigration matters and policy are primarily administered by three (3) federal agencies: the U.S. Department of Homeland Security (“DHS”), the U.S. Department of Labor (“USDOL”), and the U.S. Department of State (“DOS”).  DHS includes within it USCIS, ICE and CBP. USCIS is responsible for adjudicating immigration benefits such as changes and extensions of nonimmigrant status; granting of family-based and employment-based “green cards”; citizenship and naturalization; and asylee/refugee matters. Housed within USCIS also is its own appellate body for reviewing visa decisions–the Administrative Appeals Office (“AAO”).

In January, USCIS proposed a rule which, among other things, would adjust USCIS fees, add new fees for certain benefit requests, and establish distinct fees for petitions for nonimmigrant workers.[1] The comment period for the proposed rule expired on March 13, 2023, and according to reports, USCIS received almost 7,000 of them.  Practitioners and advocates are livid.  And rightfully so.

Immigration practitioners and advocates file hundreds of thousands (and perhaps even millions) of petitions and applications for benefits with USCIS each year.  While USCIS has made efforts, and indeed some progress, over the years in streamlining its procedures and getting a handle on case processing and some filing backlogs, my experience is that it’s nowhere near sufficient, and timely adjudications at USCIS are the exception rather than the rule.  And our clients suffer as a result.

I had a client in my office the other day who was exasperated at the prospect of waiting 60 months (yes, you read that correctly) for his marriage-based petition to be adjudicated by USCIS.  I don’t blame him!  Imagine how to navigate how (or not) to see your spouse when USCIS is telling you that it might take 5 years to process an “immigrant petition” (which, mind you, is only the first step in a multistep process that, for this individual, will then involve the DOS, and which can then take many more months or even years after that).[2]

In the face of this reality, USCIS is proposing exorbitant fee increases, some well over 100% of the current fee for some petitions / applications.  That’s a hard pill for a client (and his or her attorney) to swallow when adjudication time frames are so out of whack.

Let me give an example.  The proposed rule would increase filing fees for adjustment of status applicants (i.e., green card applications) by 130%.  This will have the effect of delaying (or outright preventing) applicants from applying for lawful permanent residence at all. As a result, this will also prevent many individuals from becoming eligible and/or applying to become a U.S. citizen thereafter.  Becoming a permanent resident, in a simple marriage-based situation, is expensive enough as it is.  Add in a few children, and the fact that some of the now “bundled” benefits are being unbundled,[3] and the immigration process becomes unavailable to many.[4]

Again, as if the fee increases weren’t bad enough, processing times, whether because of the continued effects of the pandemic, labor shortages, or candidly, systemic inefficiencies at USCIS, continue to lengthen.[5]

So, where do we go from here?  USCIS’s mission statement is to “uphold[]America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.”  The only way that “promise” is fulfilled, in the context of what I’ve written here, is by processing immigration benefits in a timely manner and at a price that all immigrants can afford.  USCIS should aspire for nothing less.

[1]  Perhaps not coincidentally, the Department of State (“DOS”) is also raising fees on most of its nonimmigrant visa applications (and the fee for a Border Crossing Card for Mexican citizens ages 15 and over), effective May 30, 2023.  Those fee increases, however, are not nearly as dramatic as those proposed by USCIS.

[2] According to the Immigration Examinations Fee Account, Fee Review Supporting Documentation (January, 2023), between 2016/2017 and 2022/2023, the time USCIS says it takes to complete adjudication for some benefits has increased as much as 218%.  See Immigration Examinations Fee Account, Fee Review Supporting Documentation (January 2023) at p.54.

[3]  USCIS is proposing separating out the fees for permission to work and travel while the green card applications are pending with USCIS.  These fees are now currently part of the overall filing fee for the application for lawful permanent residence.

[4]  The currently filing fee for an application for permanent residence is $1,225.00 for an individual over 14 years of age, and $750 for those under 14 years of age. If a family of two adults and two children (one over 14 and one under 14) were to file their applications for permanent residence today, total filing fees alone would be $4,425.00.  The proposed fee increase will more than double this amount.

[5] And, with the unbundling of the travel and work authorization application fees from the application for permanent residence fee, the cost of receiving permission to work (or to travel outside the United States) while the application for permanent residence is pending, will not only increase, but they will become an annual financial burden on applicants for permanent residence until their permanent residence is actually granted.