On Wednesday, January 11th, USCIS held a virtual listening session to address some frequently asked questions about their Proposed Rule to Adjust Certain Immigration Fees. Following the listening session, the agency has also published all FAQs and answers to their website. You can access the full FAQs here: https://www.uscis.gov/proposed-fee-rule-frequently-asked-questions 

SUMMARY

• USCIS is required by federal law to conduct a comprehensive fee review every two years. Through this year’s review, the agency has determined that the current fees do not recover the full cost of providing adjudication and naturalization services.
• USCIS received ~96% of its funding from its customers in the form filing fees, not from taxpayers in the form of Congressional appropriations. The last fee adjustment occurred in 2016.
• Due to the COVID-19 pandemic, USCIS had to go on a hiring freeze and workforce attrition reduced the agency’s capacity to complete cases, this resulted in the current backlog accumulation. The hiring freeze was lifted in March 2021, but the agency still needs more resources to improve its adjudication process.
• Currently, USCIS is expected to yield an average of $3.28B per year during FY 2022 and FY 2023. The Proposed Fee Rule allows an increase of $1.9B annually on average, which is $5.2B per year during FY 2022 and FY 2023. 
• USCIS’ plan for this additional revenue:

Q: When will DHS issue a final fee rule?

A: Department of Homeland Security (DHS) will accept public comments on the proposed rule for 60 days following publication of the proposed rule* in the Federal Register. DHS will then carefully review and consider each comment before drafting and publishing a final rule to implement a new fee schedule.

*https://www.federalregister.gov/documents/2023/01/04/2022-27066/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

Q: How did DHS calculate the various fee increases in the proposed rule?

A: Stated simply, the total fees received by USCIS must cover the agency’s total operation costs. This means that the fees for a particular form may include the unit cost of adjudicating that form, plus an additional fixed percentage to cover the agency’s non-adjudication overhead expenses.

Q: Why are some proposed fees for the same form different for online vs. paper filing?

A: USCIS encourages online filing—where available—to allow for a more efficient electronic submission and adjudication process. Intaking, storing, and handling paper require significant operational resources, and information recorded on paper cannot be as effectively standardized or used for fraud and national security, information sharing, and system integration purposes. Every benefit request submitted online instead of on paper provides direct and immediate cost savings and operational efficiencies to both USCIS and filers—benefits that will increase throughout an individual’s immigration journey as more benefit requests become available for online filing** and case management.

**https://www.uscis.gov/file-online/forms-available-to-file-online

Q: Why has DHS proposed to increase EB-5 program fees?

A: DHS proposes to increase EB-5 program fees consistent with the fees proposed for other benefit requests. DHS proposes that the fee amounts indicated by the full cost recovery model for the immigrant investor forms are not capped or decreased below the estimated full cost recovery as with some other forms. DHS believes that the requirements for financial wherewithal in the program are inconsistent with shifting the costs of the EB-5 program to be funded by the fees paid for other requests.

Notwithstanding the EB-5 program fees that DHS has proposed, DHS is also gathering the information necessary to evaluate the EB-5 fees to meet the additional fee guidelines and processing time requirements provided in the EB-5 Reform and Integrity Act of 2022 (EB-5 RIA 2022). The law requires DHS to conduct a fee study no later than one year after the date of its enactment (i.e. March 15, 2023), and then, no later than 60 days after completing the study, to set fees for EB-5 program-related immigration benefit requests at a level sufficient to recover the costs of providing such services and completing the adjudications within certain time frames.

CURRENT FEES VS. PROPOSED FEES

POSITIVE IMPACT OF THIS FEE INCREASE

As previously mentioned in this article, the main reason for the backlogs is the lack of staffing due to the hiring freeze during the COVID-19 pandemic. As the agency increase the fees, they will have better resources that allow them to hire more adjudicators, which will hopefully speed up the process.

We will continue to update you on the latest news.

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