The Department of Homeland Security (DHS) has published a Notice reopening the comment period on its proposal to increase fees charged to applicants for various types of immigration and naturalization status and benefits, as well as to change the terms and requirements for certain other immigration-related  applications and requests.  Among other changes, the new rules would, for the first time in the United States, require payment of a fee to apply for asylum , and would eliminate waivers of fees for asylum applicants when they apply for authorization to work in the U.S.  In order to be considered by DHS, comments on the proposed regulations must be received no later than 11:59 Eastern Time on February 10, 2020.  (Note: The comment period for these proposed regulatory changes originally closed on December 16, 2019, was extended to December 30, and has now been reopened and further extended to February 10, 2020.)

Summary of the Proposed New Regulations:

DHS proposes to increase (by a weighted average of 21 percent) the fees charged by U.S. Citizenship and Immigration Services (USCIS) to immigrants and other aliens who apply for immigration “benefits” (such as particular types of immigration-related status, documentation, or authorizations); add new fees for certain benefit requests; establish multiple fees for petitions for nonimmigrant workers; and limit the number of beneficiaries on certain forms, in order to to conserve USCIS resources. This means that while some existing fees would be increased by 21% or less, or in some instances even decreased, other fees — in particular fees to apply for Naturalization, Adjustment to Lawful Permanent Resident Status, and renewal of DACA status — would increase very substantially.  In addition, among other changes, the proposed new regulations would — for the first time in America — require applicants for asylum to pay a fee ($50) for processing of their applications. They would also remove from the category of immigration processes for which applicant fees can be waived the Application for Employment Authorization (Form I-765, which existing regulations require asylum applicants to complete and file), and would eliminate a current regulatory exemption of asylum applicants from payment of the fee for filing Form I-765 (under the new regulatory proposal, a fee of $490).

The Basics:
  • U.S. Citizenship and Immigration Services (USCIS) is primarily funded by fees charged to applicants and petitioners for immigration-related benefits, services, authorizations, or changes in status.  Fees collected from individuals and entities filing immigration requests are deposited into an Immigration Examinations Fee Account (IEFA).
  • The Immigration and Naturalization Act (the INA) authorizes, but does not require, DHS to collect fees at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.”
  • DHS now proposes to adjust the USCIS fee schedule, which specifies the fee amount charged for each immigration and naturalization benefit request, so as to increase existing fees by a weighted average of 21% and to establish certain new fees. Fees for USCIS services and Immigration benefits and processes were most recently increased on December 23, 2016, also by a weighted average of 21 percent.
  • In addition to increasing existing fees, DHS proposes to impose a $50 fee for filing the Application for Asylum. The United States has not previously charged a fee to asylum applicants for filing an initial application.
  • Of the 147 other countries that are signatories to 1951 U.N. Convention Relating to the Status of Refugees (“1951 Convention”) and the 1967 U.N. Protocol Relating to the Status of Refugees (“1967 Protocol”), only three (Australia, Fiji, and Iran) charge a fee to submit an initial application for asylum.
  • Additionally, DHS proposes to require applicants who have applied for asylum or withholding of removal before the Executive Office of Immigration Review (EOIR), or who have filed an Application for Asylum on Form I-589 with USCIS, to pay a fee for initial filing of Form I-765 — the Application for Employment Authorization (that is, the application for documents authorizing a person who is not a U.S. citizen or national to work legally in the United States).
  • Currently, USCIS exempts applicants with pending asylum applications from paying the fee for filing a first application for Employment Authorization Documents (EADs) on Form I-765, if the applicant submits evidence of an asylum application and follows other instructions.  (Applicants with pending claims of asylum are, however, presently required to pay the fee for EAD renewal and replacement, and under the new proposal USCIS would continue to require the fee for renewal EADs.)
  • The new DHS proposal would establish a $490 fee for filing a Form I-765 application for EAD, increased from the current level of $410. USCIS projects that this change will require approximately 300,000 asylum applicants to pay the Form I-765 fee each year.  Asylum applicants are legally required to apply for Employment Authorization Documents (EAD), after a waiting period.
  • A separate rulemaking proposal by DHS (for which the public comment period closed on January 13, 2020) would also require asylum applicants applying for Employment Authorization Documents to pay a fee for biometrics processing services. Such processing (involving submission of fingerprints, validated signatures, etc.) is a mandatory part of applying for employment authorization.  Under DHS’ proposed regulations the current biometrics processing fee of $85 would be reduced to $30; but since under present regulations asylum applicants are generally exempted from the biometrics fee altogether, the “reduced” fee represents a fee increase for asylum applicants.
  • Under the new proposal, USCIS would continue to provide a fee exemption for Form I-765, Application for Employment Authorization, for individuals who have already been granted asylum (asylees) or who have already been admitted to the United States as refugees.
  • Under the new fee schedule as proposed, the fee for an immigrant to apply for Naturalization (that is, to become a U.S. citizen) would increase by 83%, from a current level of $640 to $1,170; and the fee to apply for Adjustment to Permanent Resident Status (that is, to acquire a “Green Card”) would rise 79%, from 1,225 to $2,195.
  • The DHS proposal also includes a new fee for applying to renew DACA (Deferred Action for Childhood Arrivals) status of $275. Current regulations impose no fee for DACA renewals per se, but do require requesters for renewed DACA status to pay a $410 fee to apply for employment authorization, plus an additional $85 fee for biometrics services (fingerprinting, etc.) in connection with work authorization.  The proposed new fee schedule would reduce the biometrics fee but raise the fee for application for EAD.  Thus, taking into account all associated fees in combination with the newly proposed DACA renewal fee, the total cost of a DACA renewal would increase by 55%, from $495 to $765.
  • While the money collected from the enhanced fees would be deposited into the IEFA account, DHS budget documents  indicate that the Administration plans to redirect millions in funds from the IEFA to ICE immigration enforcement operations, instead of actually using all of the fees in that account to cover USCIS immigration request/benefits processing activities.
The Agency’s Justification for the Proposed Rule Changes:

The DHS rationale for its proposal is primarily economic, predicated on the foundational notion that USCIS should recover fees sufficient to recover the full operating expenses of administering the country’s immigration status and benefits system.  The DHS discussion of its rationale acknowledges that statutory law permits but does not require these costs to be recovered in full through  fees charged to immigration service applicants and beneficiaries; and proceeds in conformance with a regulatory policy of achieving full cost recovery across the system as a whole, even if not with respect to each individual type of immigration process or service.   According to the Agency, “[a]djustments to the fee schedule are necessary to recover the full operating costs associated with administering the nation’s immigration benefits system, safeguarding its integrity, and efficiently and fairly adjudicating immigration benefit requests, while protecting Americans, securing the homeland, and honoring our country’s values.”  Specific fee increases, as well as imposition of new fees where none have been collected in the past, are thus rationalized on the basis that absent any particular new or increased fees it would become necessary to impose even higher fee increases on other applicants for or requesters of other immigration services of benefits.

Additional Information and Resources:

The original Notice of Proposed Rulemaking sets out a detailed account of the DHS proposal for altering the current USCIS fee schedule and other associated changes, and you may wish to read that Notice in its entirety.  Other online commentary about the proposed rule changes can be found on the Boundless Blog  and on the website of the Catholic Legal Immigration Network, Inc.  Because the changes outlined in this DHS proposal are part of a series of interconnected proposals impacting immigrants and other foreign nationals who may seek asylum, refugee, or other specific types of immigration status in the United States, you may also be interested in reviewing a contemporaneous, separate proposal by DHS to  revise rules relating to applications for asylum. (The comment period for that proposal closed on January 13.  A summary of the major rule changes included in that proposal, as previously described on this website, can be found here.)   Yet another regulatory proposal by DHS/USCIS acting jointly with the U.S. Department of Justice would establish additional barriers to asylum eligibility.

The proposed, overall upward adjustment of the immigration fee schedule and particular fee increases highlighted here, in other words, are better understood if not viewed in isolation. In context with other contemporaneous events and proposals, they appear more clearly as part of a multi-pronged initiative to make immigration to the United States — especially immigration by individuals with little or no financial means — significantly more difficult and substantially less attractive.  DHS’ various proposed rulemaking actions, if finalized, will certainly make it substantially more difficult, if not impossible, for a very poor person who has fled from danger in his or her own country, and made her/his way to the U.S. border with no financial assets, to gain asylum status — unless he or she has friends or relatives already in the country who are able and willing to give the individual some considerable measure of financial support.

If You Are Ready To Comment:

If you are ready to comment on the proposed fee-hikes for asylum seekers and other immigration-related requests and status changes, the easiest way of doing so is to go to the Comment Page for this topic on the Government’s eRulemaking website, type your comments into the box provided for that purpose, and follow the other instructions on that page for comment submissions.

Alternatively, you can submit comments in letter form by mail addressed to: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529-2140. (If you choose to mail your comments, be sure to reference DHS Docket No. USCIS-2019-0010 in a subject line at the start of your correspondence, and be aware that in order to be considered mail must be postmarked by the comment submission deadline of February 10, 2020.  Please note that USCIS will not accept any comments that are hand delivered or couriered. In addition, USCIS will not accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.)

All comments must be submitted by 11:59 PM Eastern Time on February 10, 2020 in order to be considered.