Hike in filing fee by USCIS, new fee for the EB-5 investor visa program



  • The situation in the US is pretty grim. The policy decisions and recent hikes in the statutory fees for certain H-1B and L-1 petitions are to be blamed. But apart from that various other immigration complications alsso weigh in. Like, the lengthy delays in adjudicating petitions. But Department of Homeland Security (DHS) has now created a new problem.

    Putting into practice the “Full Cost Recovery” theory, DHS is proposing to raise USCIS filing fees by a weighted average of 21 percent and impose a new fee on the Regional Centers with regard to EB-5 processing in order to fully recover costs for its services and to maintain adequate service. The proposed rule has been published in the Federal Register and is open for public comments until July 5, 2016.
    The funding of the U.S Citizensip and Immigration Services are known to many. U.S. Citizenship and Immigration Services (USCIS) is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA) and used to fund the cost of processing immigration benefit requests.

    USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, they will experience an acute shortage of $560 million between revenues and costs. This projected shortfall poses a risk of being detrimental for USCIS operations. The proposed rule would eliminate this risk by ensuring full cost recovery. As such, DHS is proposing to adjust fees by a weighted average increase of 21 percent (%).
    Proposed rule has certain points which are very critical. Let us take a look at some of them.


    EB-5 (IMMIGRANT INVESTOR) VISAS: (FORM I-924A) NEW FEE FOR THE ANNUAL CERTIFICATION OF REGIONAL CENTER.

    In order to recover the full cost of processing, DHS is proposing to establish a new fee which mounts to about $3,035.00 for the Annual Certification of Regional Center, Form I-924A, pertaining to the EB-5 Regional Center investor visa program benefit. As many are aware, Form I-924A is used by Regional Centers to demonstrate continued eligibility for their designation. Although approved regional centers are required to file the Form I- 924A annually, there is currently no filing fee and the processing cost is borne by other individuals paying fees for immigration benefits. Until now USCIS was using its adjudicative resources to handle Form I-924A without charging any fee for approximately eight hundred currently approved Regional Centers. This USCIS’ annual subsidy provided to the EB-5 Regional Center is soon going to end. Note that the rule also proposes to change the title of Form I-924A from “Supplement to Form I-924” to “Annual Certification of Regional Centers.”
    Further, the proposed fee for processing the Form I-526, Immigrant Petition by Alien Entrepreneur, will increase by 145 % to $3,675 (from the current fee of $1,500.00). Amongst all the bad news, there is some respite. The fee for processing Form I-829, Petition by Entrepreneur to Remove Conditions, is going to remain the same at level of $3,750.00. 



    (N-400) TRI-LEVEL STRUCTURE FOR THE APPLICATION FOR NATURALIZATION

    DHS is proposing to establish a three-level fee for the Application for Naturalization, Form N-400. At the first level, DHS would increase the standard fee for Form N-400 from $595 to $640. Second level, DHS would continue to charge no fee to an applicant who meets the requirements of sections 328 or 329 of the Immigration and Nationality Act of 1952 (INA) with respect to military service and applicants with approved fee waivers. At the last level, DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. It is proposing this change to increase access to United States citizenship.

     

    USCIS NOT TO BEGIN PROCESSING THE REQUESTED IMMIGRATION BENEFIT UNTIL THE FILING FEE AND/OR BIOMETRICS FEE PAYMENT GETS CLEARED

    Current regulations provide that when a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter is notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension. Moreover, if a benefit request is received by DHS without the correct biometric service fee, DHS notifies the applicant of the deficiency and takes no further action until payment is received. According to these provisions, when a payment is returned as non-payable, USCIS places the immigration benefit request on hold and suspends adjudication. If a check is dishonored or payment otherwise fails, USCIS assesses a $30.00 charge and pursues the unpaid fee and penalty using administrative debt collection procedures. If the biometrics services fee was required and is missing, USCIS generally provides the individual 30 days to correct the payment. If payment is made within the allotted time, USCIS resumes processing the benefit request. If the filer does not correct the payment, USCIS does not acknowledge the filing. If the biometric fee is not paid, USCIS considers the benefit request as abandoned. DHS is aiming at eliminating the above-mentioned rules requiring that cases be held while deficient payments are corrected.
    USCIS clears payment checks through the Automated Clearing House (ACH) by converting checks to electronic payments. Because of the fact that USCIS converts checks into ACH payments, there is currently no or very little delay before USCIS knows whether the check is valueless. DHS is proposing that USCIS will not begin processing the benefit request until the payment has cleared. DHS anticipates that the proposed change would reduce the USCIS administrative costs for holding and tracking immigration benefit requests with rejected payments. This change would quicken USCIS’ process for handling immigration benefit requests when payments are returned as not payable or do not include the required biometric services fee.
     

    HOLDING THE BIOMETRIC SERVICES FEE FIXED AT ITS CURRENT LEVEL

    Though the model used by the DHS suggested a reduced Biometrics fee of $75.00, it is proposing to hold the Biometrics service fee at its current level of $85.00. DHS believes that the importance of and uncertainty in the Biometric services area justifies holding that fee at $85.00.
     

    REFUNDS

    DHS is proposing a minor change in the provision regarding USCIS fee refunds. In general, except for a premium processing fee, USCIS does not refund a fee regardless of the decision on the immigration benefit request. Going forward, USCIS will refund a fee if the agency determines that an administrative error occurred resulting in the incorrect collection of a fee. Examples of USCIS errors include:

    • Unnecessary filings: Cases in which USCIS (or DOS in the case of an immigration benefit request filed overseas) erroneously requests that an individual file an unnecessary form along with the associated fee; and

    • Accidental payments: Cases in which an individual pays a required fee more than once or otherwise pays a fee in excess of the amount due and USCIS (or the DOS in the case of an immigration benefit request filed overseas) erroneously accepts the erroneous fee.

    A copy of the proposed rule, and more detailed information regarding the proposed fee changes can be looked up at:https://www.federalregister.gov/articles/2016/05/04/2016-10297/us-citizenship-and-immigration-services-fee-schedule

     

    These guides are not legal advice, nor a substitute for a lawyer

    These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

Advocate Rabindra Kumar Singh

  Chicago, USA

 Experience: 12 years

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