Episode 67: How companies have prepared for immigration filing fee increases

It’s March 28, and this is your BAL Immigration Report.

• H-1B registration has closed and petition filing begins next week.
• The government opens an H-2B cap for returning workers.
• A look at how employers have been preparing for major USCIS filing fee increases.

“As companies look for ways they can save, they’re looking at what services they include with their sponsorship and making assessments about what they want to keep and what they may potentially want to eliminate.”

—Matthew Gross, BAL Partner

U.S. news

H-1B registration closes

H-1B registration has closed, and U.S. Citizenship and Immigration Services is in the midst of issuing notices to those selected in this year’s H-1B lottery. There’s still no information yet on how many registrations were submitted this year.

Those selected in the lottery will be invited to file full H-1B petitions beginning Monday, April 1. Monday is also the date on which higher USCIS filing fees will take effect. We’ll discuss the fee rule and what employers have been doing to prepare for it in more detail in this week’s spotlight.

Returning H-2B worker visa applications open

USCIS has begun accepting applications for up to 19,000 visas for returning H-2B workers.
The government has exhausted this year’s supply of visas under regular H-2B caps. The additional visas are available under a supplemental cap and are reserved for returning H-2B workers with start dates between April 1 and May 14.

Officials also continue to accept applications for country-specific H-2B visas for workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras.

U.S. news roundup

• Congress passed spending legislation that funds the federal agencies that handle immigration matters through Sept. 30.
• The Department of Homeland Security announced the extension and redesignation of Myanmar for Temporary Protected Status.
• USCIS announced the reopening of an international field office in Tegucigalpa, Honduras.

Spotlight

A conversation with BAL Partners Maria DeLapp and Matthew Gross: how U.S. employers are preparing for immigration filing fee increases.

BAL Immigration Report: As we’ve previously reported, U.S. Citizenship and Immigration Services is set to implement dramatic fee hikes April 1. For example, the fee for an H-1B petition will increase from $460 to $780. The agency will also impose a $600 Asylum Program Fee that will be charged for most Form I-129 and Form I-140 filings. Larger companies could see fee increases of 115% to 175%. With the increases set to take effect in less than a week, we asked Maria DeLapp, a partner in BAL’s Chicago office, and Matthew Gross, a partner in BAL’s Dallas office, to discuss how companies are getting ready and whether they are changing their filing strategies.

DeLapp: I work with a mix of clients — small, medium and large — both in terms of just the volume of immigration as well as the size of the company. And all of them, the first reaction is to take a look at the budgets for next year and the forecasts. For most of our clients, we do provide forecasts, and so that was the first thing they’ve asked is, how is it going to impact our program? What do we plan for? What do we budget for? So we provided that information to them. We’ve also worked to prepare the communication, either for the business, for the managers that are authorizing the costs, or for leadership so they understand that the budgets are going to be different next year. Most of the clients that I’ve worked with are not necessarily planning on changing either their hiring strategies or recruiting or any other practices, but most are looking at what specific costs they’re going to be covering under their existing policies.

BAL: Is this consistent with what you are seeing?

Gross: Absolutely. As companies look for ways they can save, they’re looking at what services they include with their sponsorship and making assessments about what they want to keep and what they may potentially want to eliminate — things such as covering the cost for H-4 dependent EADs or the EADs associated with the filing adjustments of status. Covering the cost of dependents for adjustments of status — a wide range of things that they are not required to pay for, but many employers do cover. They’re going back to the drawing board to ask if it makes sense for them to continue to cover those services.

BAL: We asked Gross and DeLapp what questions companies have had and whether there are any issues that still need clarifying.

Gross: One thing that really stands out is that the new asylum fee is required for all I-129 and I-140 petitions. That’s really the bread and butter of employment-based immigration sponsorship. So if you look at the total number of nonimmigrant and immigrant filings you have, every one of those cases is going to go up an additional $600 [outside of the filing fee increases]. There is a reduction in the asylum fee amount for small businesses with 25 or fewer employees that reduces the normal asylum fee of $600 to $300. Nonprofits are exempt, and USCIS recently amended the rule to clarify that certain educational institutions are included in that exemption. So that was a big deal for many schools out there who are sponsoring foreign national workers, so long as they are nonprofit and qualify under the definition, they too are also exempt.

BAL: DeLapp added that base filing fees are also lower for smaller employers.

DeLapp: One additional thing that may not be worthy of note for larger employers, but for the small clients, it’s important to know that if they have 25 or fewer employees, their base filing fee for the Form I-129 is going to be different. It’s discounted at 50% or the same fee as currently in place, if the 50% of the standard new fee is less than the current fee. So just as an example, the new base filing fee for Form I-129 is going to be $780. If you’re a small employer or not-for-profit, it will continue to be $460, which is the current fee. For Ls, the new filing fee is going to be $1,385, but if you’re small or nonprofit, your new fee is going to be $695, so 50% of that. It’s not necessarily as straightforward as it may appear, and there are some exemptions and lower fees in place for smaller and nonprofit employers.

One additional clarification is premium processing is treated separately, both under the fee and the new form rule. The new increased fee for premium processing went in effect on Feb. 26, and the new I-907 form is going to be required on April 26. So all the fees are going up, but not all are going up at the same time. Premium processing has already been up since February, and the new form is going to be in effect a little bit later in April.

BAL: Last week, a group of plaintiffs filed a lawsuit aimed at stopping the fee increases. The plaintiffs included the ITServe Alliance, which has been successful in litigation against USCIS in the past. Gross provided his analysis.

Gross: Those of you who follow USCIS litigation closely know that ITServe Alliance is no stranger to this game. The basis of their argument is that the agency violated the APA, the Administrative Procedures Act.  You may recall the attempt to raise fees under the last administration was successfully blocked based upon a claim that they had not properly followed the APA. It’s too soon to know if they will be successful. Companies should plan as though that the new fees will be going into effect on April 1 and go from there. It’s possible that this case could have an impact on the fees themselves, but at this time employers should proceed with the understanding that they will be going into effect.

BAL: BAL surveyed companies earlier this month asking how the fee increases would impact their programs. Most companies said they would not adjust how many petitions they filed, even in the face of increased costs. We asked DeLapp what this says about the important role foreign workers play in helping keep U.S. companies competitive.

DeLapp: It speaks volumes, frankly. I looked at recent studies and publications from Economic Policy Institute that cite a couple of numbers that I think are super important to keep in mind. The unemployment rate for U.S.-born workers averaged 3.6% in 2023, which is the lowest on record. So even with increased immigration, we are not seeing high unemployment among U.S.-born workers. Immigrants are such an integral part of our labor market, and the latest statistics show that immigrants make up about 18.6% of the U.S. labor force across different industries and a mix of lower, middle and higher wage jobs. The other quick thing to note is, looking at the statistics, nearly half of all graduate students in STEM programs are foreign nationals, foreign students. And so when it comes to competing for talent, which all companies are doing to keep up with where they are in the marketplace, you can’t avoid hiring foreign nationals. And in fact, some of the best and brightest do come from those grad programs are foreign nationals, and so it is a huge impact to our economy and the continued growth.

BAL: Look for additional BAL resources on the USCIS fee increases, including our USCIS fee calculator, analysis of how the increases will affect small- and medium-sized companies and a webinar on the recently published fee and H-1B rules.

Global news

Temporary Foreign Worker program changes

In Canada, officials announced changes to the Temporary Foreign Worker program as part of an effort to reduce the number of temporary residents in the country.

Beginning May 1, the validity period of labor market impact assessments will return to six months. The validity period was temporarily increased to 12 months during the pandemic to ease labor market conditions. Additionally, certain sectors of the Temporary Foreign Worker program will return to a 20% cap on low-wage workers on May 1. The cap was temporarily raised to 30% in 2022.

Current exemptions to these measures for construction, healthcare, agriculture and seasonal employers will remain in place.

Australia tightens student visa regulations

In Australia, the government has tightened several student visa regulations in an effort to reduce net migration.

A new Genuine Student requirement has replaced the Genuine Temporary Entrant requirement for student visas. This new evaluation is intended to clarify a student’s intention to genuinely study in Australia as well as identifying non-genuine students who seek to enter the country for purposes other than education. Prospective foreign students also must now show greater proficiency in English language assessments. The new measures went into effect on March 23.

Global news roundup

• The United Arab Emirates announced a new health insurance requirement that will go into effect Jan. 1, 2025.
• Denmark, Israel, South Korea and Spain all announced changes to income thresholds applicable to foreign workers.
• Romania announced changes to its EU blue card regulations.

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