By ImmigrationGirl October 1, 2020 F-1 Students, General, H-1B, I-140, L-1A and L-1B, Legislation 19 Comments
You probably already know that a major filing fee increase was set to take effect for applications to USCIS postmarked on or after tomorrow, October 2nd (see here). However, yet another lawsuit has been filed seeking to stop the fee increase regulation from taking effect. A judge in California issued an injunction blocking the fee increase this week. The injunction is a preliminary action taken by a court that stops a regulation from taking effect before the merits of the lawsuit are actually heard. It is used when the judge believes that the plaintiffs seeking to block the action have a good chance of winning their case. The actual case will continue to go on and a final decision will ultimately be made, likely several months from now.

USCIS issued this response to the injunction: https://www.uscis.gov/news/news-releases/uscis-response-to-preliminary-injunction-of-fee-rule but has not issued any guidance confirming which fees should be paid after today. USCIS could appeal the decision on the injunction. This all comes at an anxious time for many employment-based immigrants as many people become eligible to file their adjustment of status applications today under the October Visa Bulletin. At this moment, until USCIS publishes guidance confirming the required fees, I am planning to hold off on filing applications until at least Monday. I would hate to mail applications out tomorrow that end up having the wrong fee as they will be rejected. This month is going to be super crazy for USCIS and it could take a long time for them to return rejected applications back. I do not want to risk a rejection that does not arrive until November and end up missing the filing window in October as USCIS usually will not honor the original filing date.

That’s not all. Premium Processing is another hot topic of conversation as HR 8337, an appropriations bill to fund the federal government passed the House and Senate and was signed into law by the president. The bill includes a major expansion of premium processing availability: https://www.forbes.com/sites/stuartanderson/2020/10/01/congress-greatly-expands-premium-processing-for-immigration-benefits/#261e50913db5.
The law requires USCIS to provide premium processing services for
• “(A) employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions; (ie H/L/O/TN/E and their dependents)
• “(B) employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b); (ie adding EB-1C multinational managers)
• “(C) applications to change or extend nonimmigrant status; (ie change of status to F-1 student)
• “(D) applications for employment authorization; and
• “(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.
A few important points:
This legislation increases the premium processing fee for categories that currently allow it from $1,440 to $2,500. This increase should theoretically take effect today, but no update on the USCIS website yet. As today is the last day to mail out I-129 petitions using the current version of the form, we are left to choose whether to A) file today with the old form and old fee that may not be the right fee, B) file today in regular processing and upgrade once we have guidance on the required fee, or C) delay filing, re-prepare the form and file with the new fee.
All other new categories that will now allow premium processing will have to wait for DHS to go through the regulatory process to determine the required fees.
DHS has the authority to adjust these premium processing fees every 2 years.
The bill allows DHS to suspend the availability of premium processing for designated immigration benefit requests only if circumstances prevent the completion of processing of a significant number of such requests within the required period; and
requires DHS to ensure that premium processing requestors have direct and reliable access to current case status information as well as the ability to communicate with the premium processing units at each service center or office that provides premium processing services. (this is very much needed)
In implementing these changes, DHS shall develop and implement processes to ensure that the availability of premium processing, or its expansion to additional immigration benefit requests, does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated. (although no requirements to reduce current processing times for regular processing).
So, we should expect an update in the very near future from USCIS regarding the increase in filing fee to $2,500 for case types that currently allow it.
The rest will likely take several months to go through the regulatory process so they will not be available in the near future.