Episode 16: How the business community is responding to proposed USCIS fee increases

It’s March 23, and this is your BAL Immigration Report.

• The government makes it easier to obtain temporary proof of lawful permanent residence.
• The U.S. has a new ambassador to India.
• Business groups push back on plans to dramatically increase USCIS fees.

“The challenge is, companies are still dealing with significant processing delays, backlogs, an inability to leverage electronic filing and a lot of administrative burdens associated with the current outdated process.”

—Eileen Lohmann, BAL Senior Associate

U.S. news

USCIS to issue ADIT stamps via mail

U.S. Citizenship and Immigration Services will now issue Alien Documentation, Identification and Telecommunication, or ADIT, stamps via mail delivery to certain lawful permanent residents. The stamp provides temporary proof that an individual is a green card holder and may be needed when a green card is expired or lost, or while immigration forms are pending.

Previously, lawful permanent residents had to make an in-person appointment to obtain an ADIT stamp, which became increasingly difficult during the pandemic. Now, applicants can call USCIS to request the stamp and, if they meet specific requirements, the agency will issue it via mail.

Garcetti confirmed as ambassador to India

Former Los Angeles Mayor Eric Garcetti has been confirmed by the Senate to serve as U.S. ambassador to India. President Joe Biden originally nominated Garcetti to the post in 2021, but the Senate did not hold a full vote at that time. Biden renominated Garcetti in January, and the Senate confirmed him last week, 52-42.

Garcetti assumes the ambassadorship at a time when India continues to struggle with pandemic-related visa backlogs. While wait times in India are still among the highest in the world for nonimmigrant visas, signs of progress are evident after steps were taken recently to increase processing capacity.

U.S. news roundup

• The April Visa Bulletin showed retrogression in some key employment-based categories but advancement in others.
• Nationals of Croatia can now apply for the U.S. Global Entry Program.
• The H-1B registration period closed Monday at 5 p.m. Eastern Time. USCIS is expected to conduct the H-1B lottery by March 31.

Spotlight

A conversation with BAL Senior Associate Eileen Lohmann: how employers and business organizations are responding to a proposal to increase U.S. Citizenship and Immigration Services fees.

BAL Immigration Report: The USCIS proposal drew thousands of comments over the course of a public comment period that closed last week. Eileen Lohmann, a senior associate with BAL’s Government Strategies team in Washington, D.C., joined us to discuss the reaction.

Lohmann: USCIS released the proposed fees the first week of the year, when everyone was getting back from the holidays. The initial reaction was a bit muted because I think it took companies a little while to really digest what those proposed increases would mean for them, especially since they affect different programs and different visa classifications at different levels.

BAL: Under the proposal, USCIS would raise fees for immigration benefit requests by a weighted average of 40% — and more for most high-skilled classifications. In addition, the proposal calls for a new Asylum Program Fee surcharge of $600 on I-129 and I-140 petitions to pay for humanitarian programs. USCIS has not increased fees since 2016, and the proposal comes at a time when it has struggled with COVID-related processing delays.

Lohmann: Companies generally do understand that since USCIS is primarily fee-funded, they need to increase their fees in order to provide the best service to petitioners and to applicants. Because they haven’t increased fees since 2016, there is a widespread recognition that this does need to happen. The challenge is, companies are still dealing with significant processing delays, backlogs, an inability to leverage electronic filing and a lot of administrative burdens associated with the current outdated process.

The comments that we see in the business community filing really focus on, “Okay, we see that you need to increase fees, but we expect you to improve services.” If you’re going to be imposing these new fees on companies, we need, first of all, more information about how they were calculated, how they will be evaluated in the future, how they actually correspond to your workload. And second, we need assurances that USCIS will actually improve services in return for these higher fees.

BAL: While fee hikes would impose significant costs, new fees will not take effect for at least several months. Lohmann stressed that the agency may make changes to its proposal and must review the comments it received on its notice of proposed rulemaking, or NPRM, before drafting a final rule.

Lohmann: They have received more than 6,800 comments from the public, really from all parts of the immigration community, whether it’s humanitarian organizations, agricultural companies and groups, entertainment, stakeholders — all across different industries. So they do have to review every comment that they receive in formulating a final regulation. And it’s definitely possible that USCIS could adjust its fees in response to comments and make significant changes.

There’s also one other variable that could affect the final regulation, and that is whether Congress provides appropriated funds to USCIS. That is one variable that USCIS emphasized throughout the NPRM — that they might adjust, for example, the asylum processing fee, that they might revisit that depending on whether they get any funding from Congress. Of course, given the current political environment, it’s very difficult to predict whether they will receive any money to supplement that, but that’s just something to be aware of that USCIS will be looking at in formulating the final rule.

Given the volume of comments, we expect this to take several months for them to review and address the comments, update their calculations as needed and then formulate a final regulation. So the earliest that we could really see a final rule would be late this year, early next year. Even then, depending on what is in the final regulation, it’s possible that we could see litigation challenging it, which would further delay implementation.

BAL: Lohmann will join BAL’s Amy Lighter, Kelli Duehning and Steve Plastrik on March 30 for a SHRM Global Talent Webcast on what companies need to know about the proposed fee increases. Visit BAL.com/events for more information. Employers can use BAL’s USCIS fee calculator to gauge the impact of potential fee increases.

Global news

Upcoming strike in U.K.

In the United Kingdom, an upcoming strike is expected to cause processing delays in passport renewals. The strike is anticipated to last from April 3 to May 5 and would affect passport offices in England, Scotland and Wales. Passport offices in Northern Ireland have yet to announce if they will join the strike. Significant delays are expected due to the work stoppage; individuals with urgent travel needs should submit their passport renewals as soon as possible.

NEXUS enrollment centers to reopen

U.S. Customs and Border Protection and the Canada Border Services Agency will soon reopen eight NEXUS enrollment centers in Canada. The NEXUS program offers prescreened individuals expedited processing when traveling between the U.S. and Canada.

Travelers can now book interview appointments at international airports in Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver and Winnipeg. The Halifax and Winnipeg centers will open next week, with the other centers opening over the course of the next month. These reopened locations will help reduce the backlog of NEXUS applications, which currently take approximately 12-14 months to process.

Canadian work permit validity extended

In other Canada news, the government will extend the validity of post-graduation work permits by 18 months beginning in April. The program allows international graduate students to gain valuable work experience while also helping address Canada’s labor shortage; many participants go on to apply for permanent residence. Permit holders, including those with expired permits, and those who qualified for the 2022 facilitation measure, will be eligible to opt into a process to extend their work authorization. Application instructions will be available on the Canadian immigration website soon.

Global news roundup

• The United kingdom has lifted COVID-19 testing requirements on travel from China.
• Russia has introduced new vaccination requirements for foreign nationals.
• Italy will adopt new residence and work permit rules.

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