On September 29, 2020, a federal judge for the Northern District of California issued a nationwide injunction blocking the United States Citizenship and Immigration Services (USCIS) from implementing their fee increase rule that had been set to take effect on October 2, 2020. The ruling prohibits the Department of Homeland Security (DHS) from enforcing the increased fee rule while the lawsuit challenging the rule continues to be litigated. Current filing fees will remain in effect until the injunction is lifted.
The USCIS had published a final rule of the fee increase in August, and the American Immigration Lawyers Association and various other non-profit organizations filed suits to block the regulation from taking effect. Federal Judge Jeffery S. White has not ruled on the merits of the case but issued the injunction while the litigation continues.
What Did the USCIS Fee Increase Rule Change?
Employment-based applications saw a significant cost increase with the fee rule. The fee rule also subjected them to new applications and processes related to an adjustment of status. The premium processing time was set to increase to almost three weeks under the fee rule, up from 15 days. Further, the rule also imposed fees for asylum and Deferred Action for Childhood Arrivals (DACA) applications. Employers with more than 50 H-1B and L-1 employees will also face higher border security fees when petitioning for the employees. The fee rule was subject to criticism, as it was the first time that asylum applications were subject to fees. The DHS commented that imposing fees for asylum applicants would deter frivolous applications.
The Effect of the Injunction on Employers and Applicants
Petitioners and applicants will not be subject to the higher fees or forms outlined in the regulation until the injunction is lifted. Premium processing times remain at 15 days.
On September 30, 2020, the USCIS issued an update confirming that due to the federal judge’s injunction, the fee increase rule will not yet be implemented. USCIS Deputy Director Joseph Eldow commented, “This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined. Unlike most government agencies, USCIS is fee funded. As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services.” The DHS is likely to obtain a stay of the injunction with the United States Court of Appeals for the Ninth Circuit.