Immigration Fee Hikes Have Companies Questioning System Fairness

Employers and foreign workers are going to absorb significantly higher visa costs as part of a recently finalized US Citizenship and Immigration Services plan to shore up its operating expenses.

Businesses are being asked to shoulder the growing financial burden of asylum processing as new migrants continue to arrive at the Southern border in large numbers. Those increased visa fees in new regulations include a $600 asylum program charge tacked onto new immigrant worker petitions.

The new USCIS fee schedule, issued last week after the release of draft regulations in 2023, is the first adjustment to payments for employment-based visas and other immigration benefits since 2016. It was driven both by the agency’s increasing humanitarian mission and Congress’ failure to deliver new appropriations to the almost entirely fee-funded agency.

The last attempt to overhaul visa fees at USCIS was sunk by a legal challenge from immigrant advocates, who argued a 2020 Trump administration proposal would have harmed low-income applicants.

The new fees are effective April 1.

“It is the Administration’s job to secure the border and Congress’ job to fund it,” said Gray Delany, executive director of the Seasonal Employment Alliance, a trade association representing companies that hire workers on temporary visas. “Law abiding employers should not be forced to shoulder the costs of solving a problem they did not create and do not benefit from.”

The group is exploring “all avenues” to challenge the fee hikes, especially the asylum surcharge, Delany said.

There were more than 1.5 million asylum seekers with pending cases at the end of 2022, according to Syracuse University’s Transactional Records Access Clearinghouse—about half of those cases heard by USCIS asylum officers with the rest heard at immigration courts in the Department of Justice.

The Department of Homeland Security, USCIS’s parent agency, said it had requested $375.4 million from Congress to adjudicate asylum cases in fiscal year 2023. That funding didn’t come through, however, so USCIS had to raise the money through its user fees, the agency said.

Equity Concerns

The massive increases being imposed this year are causing businesses and employment-based visa seekers to question the equity of the fee system as a whole. Seasonal employers filing I-129 nonimmigrant worker petitions, for example, will see costs rise by as much as 135% for seasonal H-2B visas and as much as 137% for H-2A farmworker visas. And the registration fees for H-1B specialty occupation visas will increase by more than 2,000%. All of those cost increases are in addition to the new asylum fee for employment-based petitions.

But it’s not likely to deter companies overall from continuing to seek the visas to meet their labor needs, said Jeremy Neufeld, a senior immigration fellow at the Institute for Progress. That’s because the reality is that demand for both temporary and permanent employment-based visas far surpasses the amount available.

“Given that USCIS is a fee-funded agency, updating those fees is going to be important,” he said. “The thing I worry most about is whether they have the incentives or competency to keep costs down.”

Jill Marie Bussey, director of public policy at Global Refuge, said divisive reactions to the rule are a result of current political rhetoric rather than the structure of the fee rule itself. There’s growing consensus that a new, consistent funding model is needed at USCIS, said Bussey, whose organization works with employers to integrate new immigrants into US communities.

“If we had more consistent appropriations to address the ongoing humanitarian workload, then a fee of this nature wouldn’t be necessary,” she said.

In response to a request for comment, USCIS referenced an FAQ document and news release announcing the fee hikes.

Alternatives Explored

USCIS determined that the fee increases would have a less than 1% impact on the finances of small and nonprofit users, although industry groups said in their comments on the proposal that the fee would be overly burdensome for employers in sectors like agriculture.

They also objected to being charged a fee for multiple petitions on behalf of the same worker—including extensions and renewals of their visas or changes in status from one visa type to another.

Employers suggested alternatives such as a lower fee, distributing the fee increase across all form types instead of just certain ones, or charging different amounts based on the size of the employer filing a petition. Others suggested charging asylum seekers or their sponsors for the asylum fee—since they already pay for lawyers to pursue their cases—or spreading the cost of the asylum program across all types of applications and petitions.

The agency did respond by lowering fees for some small businesses and nonprofits. For example, employers with 25 or fewer workers would pay half of the $600 asylum program fee, and nonprofits would be exempt entirely.

But USCIS justified the added employer costs with an emphasis on the “ability-to-pay principle for determining user fees” that it offered in the proposal.

“Petitioners for immigrant and nonimmigrant workers generally are required to have the resources necessary to pay the worker(s) for whom the petition is filed, and the fees that the employer must pay USCIS to file a petition are not significant compared to even a small petitioner’s revenue and profit,” the agency said in the final rule.

Efficiency Lacking

Much of those costs will disproportionately impact employment-based immigrants from India who face decades waiting for green cards whose employers will be stuck with sharp cost increases for renewing their H-1B visas, said Emily Neumann, managing partner at Reddy Neumann PC.

Yet the agency hasn’t made clear how those additional fees will improve processing times, she said.

“USCIS has made it pretty clear that their fees don’t have to be tied to the cost or value of services provided,” Neumann said.

Some efficiencies may be gained from the agency’s significant progress toward digitizing its applications in recent years—with roughly a quarter now available electronically, Neufeld said. The forms were almost entirely paper-based a handful of years ago, he said.

“If you don’t raise fees and Congress doesn’t appropriate money, and they remain cash-strapped, they’re not going to be able to make investments in capacity,” he said.

Still, past fee increases haven’t resulted in improvements in efficiency or shorter processing times, said Karin Wolman, an immigration lawyer based in New York.

While the increase in registration fees for H-1B visas likely won’t deter companies that really need skilled workers, the fee increase is a “straight up money grab” with no connection to the actual costs of the program, she said.

Sticking employers with a higher price tag for visas associated with asylum costs is “a way of creating infighting and distracting from dysfunction,” Wolman said.