Rule that would increase USCIS filing fees undergoing OMB review

U.S. Citizenship and Immigration Services (USCIS) is a step closer to issuing a final regulation that would increase immigration-related government filing fees. The agency sent the final regulation to the Office of Management and Budget (OMB) Wednesday, the last stage in the rulemaking process.

Key points:

• The text of the final rule is not yet available, so its contents and the precise amount of the USCIS fee increases have not been made public and could differ from the proposed version that was released in November and amended in December.
• According to the proposed version of the rule, USCIS filing fees would increase overall and petitions for nonimmigrants would vary according to visa type. Filing fees for H-1B petitions would increase up to 22% and L-1 petitions by up to 77%. The proposed version would also impose hefty new fees on companies whose workforce consists of a large percentage of H-1B and L-1 workers.

Background: The USCIS move to finalize the rule comes as the agency seeks $1.2 billion in emergency funding from Congress to make up for a revenue shortfall because of COVID-19. The agency said it would run out of money this summer without an injection of funding and is reportedly considering imposing a surcharge on petitions and applications to cover the shortfall.

BAL Analysis: After OMB completes its review, the rule will be posted for public inspection on the Federal Register website before being officially published. The rule has been classified as a major rule and is expected to have a 60-day delayed effective date. The impact of the regulation will depend on how it is drafted, and it is not yet known whether the agency made changes from the proposed version. Since the proposed rule included significant policy changes, the final rule could be subject to litigation. BAL is closely monitoring the progress of the regulation and will provide additional analysis when the text is published.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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