USCIS Publishes Final Rule on Fee Increase

It is official now:  As of December 23, 2016 USCIS applications fees will be rising an average of about 21%.  For those interested, all the new fees are listed on the USCIS web page here. In terms of the most common applications, I am listing the old fee and new fees below:

Petition Type Old Fee NEW Fee
I-90, Application to Replace Permanent Resident Card $365 $455
I-129, Petition for a Nonimmigrant Worker $325 $460
I-129F, Petition for Alien Fiancé(e) $340 $535
I-130, Petition for an Alien Relative $420 $535
I-131, Application for Travel Document $360 $575
I-485 (adult), Application to Adjust Status (not including $85 biometric fee) $985 $1140
I-485 (under 14), Application to Adjust Status $635 $750
I-526, Immigrant Petition by Alien Entrepreneur $1500 $3675
I-751, Petition to Remove Conditions on Residence $505 $595
I-765, Application for Employment Authorization $380 $410
N-400, Application for Naturalization (not including $85 biometric fee) $595 $640
N-600, Application for Certificate of Citizenship (biological child/adopted child) $1170 $600/550

As you can see, the amount of the increases for most applications is not that great, however, it does vary from application to application.  The I-129 fee went up by 41% while the I-765 fee went up by under 8%.

However, it should be noted that the fee charged for premium processing was not raised during this round of fee increases.  Very surprising given that it would be an easy target, and would bring in significant revenue considering the lengthening timelines for adjudication.  USCIS may be assuming that timelines will decrease because of the extra money from other fees, so they kept the premium fee reasonable so that they would still get sufficient income from that source as opposed to pricing it out of reach of most people.

Please note again that the fees do not go into effect until December 23, 2016.  Any application sent that will be received by USCIS ON OR AFTER THAT DATE should contain the new fees.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Proposes Increases to Filing Fees

Unknown.jpegUSCIS has proposed a new fee structure – raising certain fees, keeping certain fees at their current level, and even lowering some fees.  As part of its bi-annual review, USCIS determined that what it was receiving in user fees was insufficient to allow it to continue its current operations (USCIS receives very little from the general budget (and what it does get is for special projects) and is almost entirely funded by user fees).

The proposed increases that we feel are of importance are as follows:

FORM NUMBER

PREVIOUS FEE

NEW FEE

I-90 – Replace PR Card

$365

$455

I-129 – Nonimmigrant Worker

$325

$460

I-130 – Relative Petition

$420

$535

I-131 – Re-entry Permit

$360

$575

I-140 – Employment based Green Card Application

$580

$700

I-290B – Appeal

$630

$675

I-485 – AOS

$985

$1140

I-539 – Extend/Change Status

$290

$370

I-751 – Remove Conditions

$505

$595

I-765 – Work Authorization

$380

$410

N-400 –  Naturalization

$595

$640

N-600 – Cert. Of Citizenship

$600

$1170

It should be noted that the above do not include the biometrics fee of $85 (which will remain the same) where needed.  In addition to the above, the USCIS Immigration Fee (paid when you enter the US on an Immigration Visa) is being raised from $165 to $220.

USCIS does do its best to keep its fees down on most of the important applications.  The application fees that were raised the most are those related to the Alien Entrepreneur Visa.  The I-526, Application for Alien Entrepreneur went from $1500 to $3675 and the I924 Application for Regional Center Designation went from $6230 to $17,795.  There is a sixty day comment period after which USCIS will publish the final rule with a date for implementation of the new fees.  We will, of course, update you when that happens.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you. 

 

Department of State has Changed its fees

 

 

decreaseThe Department of State (DOS) has revised certain nonimmigrant and immigrant visa fees. The following categories have new fees:

  1. E visas – treaty/trader and Australian specialty occupation visas decreased to $205 (from $270).
  2. K visas – Fiancé(e) or Spouse of U.S. citizen category visa increased to $265.
  3. Immigrant visa application processing fee based on an approved I-130 Immediate Relative of Family Preference petition increased to $325.
  4. Immigrant visa processing fee based on an approved I-140 employment-based petition decreased to $345 (from $405).

As detailed on the DOS website, the following procedures apply:

  1. DOS will not refund the difference for fees that have been lowered.
  2. If you are applying for a category where the fee has been raised and you have already paid the fee, you are not required to pay the difference between the amount you paid and the new fee as long as your appointment is on or before December 11, 2014.
  3. If you are applying for a category where the fee has been raised, you are required to pay the difference between the amount you paid and the new fee if your appointment is on or after December 12, 2014.

H-1Bs: Can an Employment Contract Termination clause require the Employee to pay H-1B fees?

punitive-damages

Here is the scenario:  An H-1B employee works for Employer A.  The employee receives a better off from Employer B, and Employer B files an H-1B transfer for them.  When the employee informers Employer A about the new filing, Employer A tells them that, per their employment contract, since they left prior to two years expiring they need to reimburse Employer A for a certain sum of money.  Sometimes the employer specifically requires employees to repay H-1B visa fees, sometimes it is a more general liquidated damages clause.

The big question is, Is this Legal?

Before proceeding let me say that I am not an employment law attorney and, in general, I cannot tell you if a specific liquidated damages clause is valid or not.  What I can say is that any clause that would require the employer to pay back H-1B fees is, in almost every circumstance, invalid and illegal.  As stated in a previous blog post, the Employer is required to pay certain fees, no matter what.  This includes the training fee, which is usually $750 or $1500 depending on the size of the employer.  There is no doubt that this fee CANNOT be reimbursed to the employer in any way, shape or form.  If the clause includes reimbursement for that fee, it would be considered illegal.  What about the other H-1B visa fees and the attorney fee?  Could the employer get reimbursed for those?

It is good to recall here that the justification given by the DOL for requiring an employer to pay all fees is that such fees are a “cost of doing business” and, therefore, not a legitimate deduction from the employees pay.  Therefore, the payment of such fees could bring the salary of the employee below the required wage.  Therefore, I think it is clear that if the employees repayment of the fees brings their salary below the prevailing wage (this would be their yearly salary minus the amount they are repaying, not their entire salary for the entire time they worked), it is against the regulations and the DOL would have an action against the employer.

The trickier situation is where the re-payment of such fees would not bring the employees salary below the prevailing wage.  First, if the LCA lists just a static wage, and the re-payment of the fees would bring the wage below that level, I again feel that it is clear that the DOL would consider that a violation of the LCA as the employer is no longer paying the promised wage.  If the LCA lists a wage range, and the re-payment of the fees would keep the wage in that range, I still believe that the DOL and USCIS would both have issues with the re-payment of the fees.  DOL seems to think that there is no situation in which it is ok for the employer to require an employee to pay such wages.  It is certainly not worth the risk in my mind to tempt fate and try to enact or enforce such a provision.

As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.