The Department of Homeland Security rang in 2023 with some shocking new proposed fees — and a plan to help pay for the humanitarian asylum program with new fees for worker visa applications. On January 3, DHS published almost 500 pages of proposed rules in the federal register, including a list of rising fees, and the big news of a new $600 asylum fee tacked onto employment-related applications. This will be a huge shift and will undoubtedly hurt businesses filing for temporary and permanent visas.
U.S. Citizenship and Immigration Services, the agency that administers immigration benefits on behalf of DHS, relies on filing fees to cover its operating costs. USCIS is underfunded and has called for significant fee increases across almost all immigration forms, including family-based applications.
Some of the fees that apply to businesses and employment-based immigration matters include:
- The H-1B annual registration or lottery fee will rise to $215 from $10. Last year the government received almost 500,000 applications.
- The I-129 form, which is used for any temporary work visa, will have variations of fee increases depending on the type of application. H-1B fees will increase to $780 from $460; L-1 visas from to $1,385 from $460; O-visas to $1,055 from $460; and H-2A and H-2B will increase to $1,090 and $1,080, respectively.
- Form I-140, used for employment-based green card (permanent residency) applications, will have a small increase to $715 from $700.
On top of the fee increases, the biggest change is that every application using Form I-129, and I-140 will require the $600 asylum fee, which will go toward adjudicating the humanitarian cases of those who reach the U.S. seeking protection from persecution.
Here’s how those fees could add up for one potential employee. With these fee increases, for example, an employer entering the H-1B registration for one potential employee must pay $215 to enter the lottery. If the case is selected, the employer will then proceed to pay a $780 application fee, as well as a required fraud prevention fee of $500 and the American Competitiveness and Workforce Improvement Act fee of $750 to $1,500, depending on how big the company is. The company also will have to pay the $600 asylum fee. And if the applicant needs a speedy answer, there’s an optional fee of $2,500 for premium processing, which will be 15 business days for a response instead of 15 calendar days under the proposed rules.
All this doesn’t take into account the attorney fees, which can vary from $5,000 to $9,000 depending on the law firm. As such, each employee will cost over $10,000 in just immigration fees.
These will add up very quickly, especially if the business wants to sponsor more than one employee.
These fee increases will have an adverse effect on businesses — not to mention it “robs Peter to pay Paul.” USCIS justified the proposed rules with the argument that businesses can absorb the rising costs — even for the unrelated asylum program:
DHS proposes this cost shifting approach with the Asylum Program Fee to place greater emphasis on the ability-to-pay principle for determining user fees. 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.
Nonprofits, small businesses, and farms also face the same new fees for foreign workers, but the USCIS argues that the monetary impact to an individual employer and applicant is small compared with the need to accelerate the processing of the thousands of asylum seekers who have arrived at U.S. borders.
But the reality is that we are going through a recession. Businesses are cutting expenses, and layoff news has been making headlines for months. Just as 2023 began, Amazon announced it would cut 18,000 positions; Microsoft announced 10,000 positions cut; and Google announced a layoff of 12,000. These cuts do not include job losses in 2022. While the technology industry is facing mass layoffs, other industries are seeing an impact, too, including the financial industry, such as Goldman Sachs, which has been planning thousands of layoffs nationwide.
Experts say more job losses are on the way, and thousands of skilled immigrant workers have been laid off as well.
My clients are generally start-ups and small to medium businesses. I know these fee hikes will be a financial burden that will affect their bottom lines. Coming out of the pandemic, businesses have already suffered financially and have not yet recovered. A record number of businesses in every industry are suffering from a severe labor shortage. At a time when businesses are struggling with finances, hiring, and stagnating revenues, do they really have the ability to pay for such high fees?
In my opinion, they do not. Instead, businesses — and thereby the economy — will continue to suffer. The ultimate loser is the American consumer and the American economy.
The truth is that USCIS needs the funding desperately. The rules state clearly why the funds are necessary — from backlogs to systemic issues, there are deep problems. In fact, our entire immigration system has been broken for decades, though the general public has become increasingly aware of the growing problems in just the past few years. But the solution is not to charge businesses more and break their backs. This is a problem that Congress must solve.
Yet, because members of Congress are more interested in fighting than fixing the country, USCIS is placing the burden on U.S. businesses and their immigrant workers. The situation is unfair to everyone in the immigration system — including USCIS, businesses, and any individuals trying to get through it.
The problem is too complex to have any simple solutions. We must have comprehensive immigration reform. But in the interim, USCIS should consider having a tiered fee for the I-129 based on the size of the business. If there must be an asylum fee, make it $200 and not $600. Also, USCIS needs to be held accountable for the fees it collects. And lastly, businesses should speak up against these fees and advocate for immigration reform. If there was ever a moment when businesses need to step up their advocacy, now is the time.
The comment period ends on March 6, 2023.
Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America. She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree. Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at [email protected], connect with her on LinkedIn or follow her on Twitter at @tahminawatson.