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Is a Fee Surcharge Coming to USCIS?
May 18, 2020

Is a Fee Surcharge Coming to USCIS?

Topics: COVID-19, Immigration

The U.S. Citizenship & Immigration Service is a fee for service agency.  Ninety-seven percent of its budget comes from the filing fees paid by applicants, petitioners, employers, and individuals seeking an immigration benefit such as naturalization, a temporary working visa, or green card.  In an internal communication widely reported by the media, USCIS revealed that it has a $1.2 billion shortfall this year.  USCIS’ leadership is looking to Congress to fund this shortfall with appropriated money.  USCIS intends to repay the Treasury with a 10% surcharge on immigration benefit applications.

USCIS leadership blames this budgetary shortfall on the drop of visa petitions from the COVID-19 pandemic.  Visa petition volume dropped 60% from March to May.  However, as witnessed in many other businesses, the COVID-19 pandemic has simply accelerated the effect of business problems that have been in place for years.  Recent changes to USCIS’ mission and culture and not the pandemic created its current money problems.

USCIS historic mission was to adjudicate applications for immigration benefits such as permanent residency or temporary working visas.  In 2018, USCIS’ mission changed from benefits adjudication to a focus on national security.  Temporary employment visa petitions routinely approved in the past saw dramatically higher incidents of questioning and a spike in denials.  This change, combined with a required field office interview for employment-based green card recipients caused USCIS employee productivity to plummet.  Applications and petitions now take much more employee time to adjudicate under the new paradigm.  Additionally, policy changes like the Muslim Ban, the Public Charge regulation, removal of deference to prior immigration decisions, cessation of premium processing, and aforementioned greater denial rate softened demand for immigration benefits.  In short, less people are applying for immigration benefits.  This makes for less filing fee revenue.  Finally, USCIS subsidized other parts of the Department of Homeland Security when it seconded its employees to Immigration and Customs enforcement

When faced with higher costs, businesses typically raise prices.  Unfortunately, government agencies cannot move with the nimbleness of business.  Federal law constrains USCIS’ ability to collect fees.  USCIS’ fee schedule is subject to notice and comment rulemaking.  It does not have the authority to impose a surcharge of any amount.  USCIS proposed a rule that would dramatically increase filing fees in January of 2020.  It is now engaged in the time consuming process of reviewing and digesting the 40,000 comments it received.  In the event Congress bails out USCIS, it would likely give USCIS the authority to impose a surcharge.  While it is unclear if Congress will bail out USCIS, one thing that is certain:  Immigration service fees will be a lot more expensive in the future.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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