Mark A Ivener, A Law Corporation

USCIS Proposes Fee Increases, New Fee for Annual Certification of EB-5 Regional Centers

U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule on May 4, 2016, to increase USCIS fees by a “weighted average” of 21 percent and add one new fee for EB-5 Regional Centers. In addition, among other things, USCIS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee. The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit type. USCIS further explains its calculations in the notice.

Generally, USCIS said it anticipates that if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between Immigration Examinations Fee Account (IEFA) revenues and costs. This projected shortfall “poses a risk of degrading USCIS

operations funded by IEFA revenue,” USCIS said. The agency believes the proposed rule “would eliminate this risk by ensuring full cost recovery.”

In addition to raising fees for existing petitions, USCIS proposes a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A. USCIS explained that approved EB-5 Regional Centers must file Form I-924A annually, but there is currently no filing fee. As a result, USCIS does not fully recover the processing costs associated with such filings.

Also, the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act increased fees for certain H-1B and L-1 visa petitioners. Under this new law, USCIS explained, these petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L-1 (including L-1A and L-1B) nonimmigrant status.

USCIS began rejecting petitions after February 11, 2016, that do not include the additional fee, when applicable. This fee is in addition to the Petition for a Nonimmigrant Worker (Form I-129) fee, the Fraud Prevention and Detection Fee, and the American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee (if applicable). The agency noted that these fees, when applicable, may not be waived. The fees under the new law will remain effective through September 30, 2025. USCIS said it is revising the instructions for the Petition for a Nonimmigrant Worker, Form I-129, and the Nonimmigrant Petition Based on Blanket L Petition, Form I-129S, to include these fees. USCIS said it is proposing to publish these new statutory fees “in the interest of transparency, information and clarity.”

USCIS noted that it collects this revenue, but does not spend it. One half of the revenue collected from such fees under the new law goes to the General Fund of the Treasury. The other half is deposited by DHS into the 9-11 Response and Biometric Exit Account to fund a biometric entry-exit data system to track the lawful entrance and departure of all noncitizens at U.S. airports and land border crossings.

Through this rule, USCIS also said it expects to collect sufficient fee revenue to fully support the USCIS Refugee, Asylum, and International Operations Directorate (RAIO); Systematic Alien Verification for Entitlements (SAVE); and the Office of Citizenship. This would allow USCIS to discontinue diverting fee revenue to fund these programs, thereby increasing resources to fund the personnel needed to improve case processing, reduce backlogs, and achieve processing times that are in line with the commitments in the FY 2007 Fee Rule, which USCIS is still committed to achieving.

In addition, USCIS is evaluating the feasibility of calculating processing times using data generated directly from case management systems, rather than with self-reported performance data provided by Service Centers and Field Offices. USCIS said preliminary findings suggest that USCIS will be able to publish processing times sooner and with greater transparency by showing different processing times for each office and form type. USCIS is also considering publishing processing times using a range rather than using one number or date. This approach would show that, for example, half of cases are decided between X and Y number of months.

USCIS also proposes to establish a three-level fee for the Application for Naturalization (Form N-400). First, the agency would increase the standard fee for Form N-400 from $595 to $640. Second, the agency would continue to charge no fee to an applicant who meets the requirements of Immigration and Nationality Act §§ 328 or 329 with respect to military service and applicants with approved fee waivers. Third, the agency would charge a reduced fee of $320 for naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

Written comments must be submitted by July 5, 2016. See also this related announcement.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.