On January 31, 2024, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) issued a final rule which significantly increases the fees for employment-based immigration requests. Set to take effect on April 1, 2024, this rule will not only increase immigration filing costs for many employers but also introduce a new Asylum Program Fee for certain petitioners, including those relying on temporary, seasonal labor through the H-2B program.

While most government agencies receive federal funding to cover operating costs, USCIS depends on fees to operate. As the agency has not updated its fees since 2016, the new fee adjustments are intended to cover the increased costs necessary for improving processing times and reducing backlogs. However, the agency’s shift to an “ability to pay” fee model, rather than charging fees based directly on the services used, has led to an uneven distribution of increased operational costs. Now, those considered financially capable, such as employers and entrepreneurs, bear a larger portion of these costs, causing a notable rise in employer filing fees.

This shift has notably impacted various employer categories, particularly within industries like tree care that depend on the H-2B visa program for seasonal labor needs. While the proposed regulation did not differentiate between companies of different sizes, due to feedback the agency received from impacted stakeholders, the final rule includes provisions to mitigate the impact on smaller entities:

• Employers with More than 25 Full-Time Equivalents (FTE):
  • I-129 H-2B Named Beneficiaries: Increased 135% from $460 per petition to $1,080.
  • I-129 H-2B Unnamed Beneficiaries: Increased 26% from $460 per petition to $580.
  • Asylum Fee: A newly established fee of $600. This fee is intended to assist USCIS in asylum processing – a process without a fee.

• Employers with 25 or Fewer Full-Time Equivalents (FTE):
  • I-129 H-2B Named Beneficiaries for Small Employers and Nonprofits: Increased 17% from $460 per petition to $540. Initially, USCIS had proposed a $1,080 filing fee for all I-129 H-2B Named Beneficiaries.
  • I-129 H-2B Unnamed Beneficiaries for Small Employers and Nonprofits: Costs remain the same at $460.
  • Asylum Fee: A newly established fee of $300 for small employers—a 50% reduction compared to the proposed rule.

Legal Challenge

On March 19, a lawsuit challenging the legality of the new USCIS fee rule was file in Colorado federal district court. While other lawsuits may be filed in the coming days, unless a court enjoins all or part of the new USCIS fee rule, the new fees will take effect as scheduled on April 1.

For more on the USCIS Fee Schedule see https://www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscis-fee-rule