Trump administration drops appeal of injunction on USCIS fee increase rule

UPDATE: Jan. 11, 2021: On Dec. 31, the Trump administration filed an unopposed motion in the 9th U.S. Circuit Court of Appeals to dismiss its appeal of a federal judge's injunction of the fee increase proposed rule, according to court documents. A copy of the 9th Circuit's order granting the voluntary dismissal was provided to HR Dive by Otieno Ombok, principal at Jackson Lewis and co-leader of the firm's immigration practice group.

Dive Brief:

Fees for certain immigration and naturalization requests will be subject to a weighted average increase of 20% under a new final rule published Aug. 3 by the U.S. Citizenships and Immigration Services (USCIS).
The adjustments include fee increases for Form I-129, which employers file on behalf of nonimmigrant workers to come to the U.S. temporarily. The increases vary depending on the type of worker for whom the employer files. For example, the fee for H-1 classifications, including the H-1B classification, will increase from $460 to $555.
USCIS said in a statement that the increases are meant to recover the costs of the agency's provision of adjudication and naturalization services. "These overdue adjustments in fees are necessary to efficiently and fairly administer our nation's lawful immigration system, secure the homeland and protect Americans," Joseph Edlow, USCIS deputy director for policy, said in the statement. The final rule is effective Oct. 2, 2020.

Dive Insight:

The news follows speculation in recent months about fee changes at USCIS. The agency originally published a Notice of Proposed Rulemaking (NPRM) on the subject in November 2019. In May of this year, HR Dive reported that USCIS had proposed a potential 10% surcharge for applications, citing a projected budget shortfall caused by the COVID-19 pandemic.

Additionally, the agency issued a Notice of Proposed Rulemaking in September 2019 that would require H-1B cap-subject visa petitioners to pay a $10 fee for every registration submitted to USCIS. This provision is apparently included into the Aug. 3 final rule, which "[i]ncorporates a $10 fee for the registration requirement for petitioners seeking to file H-1B petitions on behalf of cap-subject aliens."

There are other changes introduced in the final rule that employers should note, including additional border security fees for employers with a high proportion of H-1B and L-1 visa employees, Shireen J. Karcutskie, associate at Littler Mendelson, wrote in an article on the rule. "Current practice requires employers with more than 50 employees, 50% of whom are in H-1B or L-1 status, to pay an additional $4,000 when petitioning for an initial or change of employer H-1B, or $4,500 for an initial L-1," Karcutskie said. "Under the final rule, affected employers must pay this fee with every extension, in addition to the initial filing."

The H-1B visa program has been a particular source of controversy for employers in 2020. HR Dive sister site CIO Dive reported in June that the Trump administration placed a temporary suspension on the issuance of new H-1B visas through Dec. 31 via an executive order. The order does not affect visa extensions or change of status applications, though it met criticism from some executives in the technology industry.

The administration has also faced litigation involving the program. In March, a federal judge invalidated a set of USCIS guidance documents that allegedly led to a slower approval process as well as a higher level of rejected petitions for information technology industry employers.