WHAT’S HAPPENING
On August 3rd, 2020 the Department of Homeland Security (DHS) proposed a new regulation which would change USCIS filing fees and also require USCIS to roll out new versions of several immigration forms in conjunction with these fee changes. The regulation was set to take effect on Friday, October 2, 2020. However, just days prior, on September 29th, 2020, a Federal District Court Judge in California presiding over litigation relating to the new fee rule, blocked the regulation from taking effect via a preliminary injunction. USCIS has yet to release any clarifying guidance as to how applicants and petitioners should proceed in light of the injunction and whether filings that utilize the old forms and prior fees will be accepted or rejected if filed after today.
In addition, on September 30th, 2020, Congress passed and the President signed into law a continuing resolution bill titled “Emergency Stopgap USCIS Stabilization Act” to keep the government funded until December 11, 2020. This legislation includes important changes to the USCIS Premium Processing Program by increasing the cost of premium processing service and expanding it to additional immigration benefits as follows:
For immigration benefits already eligible for premium processing, the fee will increase from $1,440 to $2,500 (except for H-2B and religious workers, which are set at $1,500)
Premium processing service must be made available to the following immigration benefits
All other employment-based nonimmigrant petitions not already eligible for premium processing
Certain employment-based green card petitions (EB-1, EB-2, and EB-3) not already subject to premium processing, including National Interest Waiver (NIW) (EB-2) applications and Multinational Executive/Manager Green Cards (EB-1c)
Applications to change or extend nonimmigrant status (including application for dependent family members of E, H, L, O, P and R status)
I-765 Applications for Employment Authorization Documents (EADs) and
Any other immigration benefits USCIS deems appropriate.
Note that the fees and timeframes for the expansion of premium processing service to new immigration benefits will be set forth in the regulations implementing this legislation but the new law did provide the following parameters:
For EB-1c Multinational Managers and EB-2 NIW petitions, fees must be less than $2,000 and processing times must be less than 45 days
For change of status applications to F, M, or J status, fees must be less than $1,750 and processing times less than 30 days
For change and extension of status applications for dependents of H, L, E, P, and O nonimmigrants fees must be less than $1,750 and processing times less than 30 days
For EAD applications, fees must be less than $1,500 and processing times less than 30 days.
In addition, the new law requires the following measures be put in place for premium processing service:
Fees collected from premium processing service may now be used to reduce processing backlogs and offset the cost of providing adjudication and naturalization services
USCIS may only suspend premium processing if circumstances prevent it from completing a significant number of request within required processing times
Petitioners and applicants who have requested premium processing service must have direct and reliable access to current case status and the ability to communicate with the premium processing service units
WHAT YOU NEED TO KNOW
Given the short notice on both these developments to USCIS fees, the agency has yet to issue clarifying guidance on what fees it will accept and when. As such, in order to avoid rejections, which could take longer than normal to be returned to applicants due to USCIS’s loss of contract employees that provided much of its administrative support infrastructure, applicants and petitions are encouraged to hold off on submitting non time-sensitive filings for several days until USCIS issues clarifying guidance on how it will implement the above fee changes.
D&S is continuing to monitor the developing situation and will provide updates as they become available.
UPDATE: On the evening of October 1, 2020, USCIS clarified that it will continue to (1) accept USCIS forms with the current editions and current fees; and (2) use the regulations and guidance currently in place to adjudicate applications and petitions while the preliminary rule is enjoined.
UPDATE: On Friday, October 16, 2020, USCIS announced that effective Monday October 19, 2020 the premium processing fee for cases currently eligible for premium processing (with the exception of H-2B petitions) would increase from $1,440 to $2,500.