Copland and Brenner

Table of Contents

1. Proposed Rule Seeks USCIS Fee Increases
2. Comprehensive Immigration Reform: On the Table?
3. H-1B Update

1. Proposed Rule Seeks USCIS Fee Increases

   In a 42-page proposed rule published in the Federal Register on June 11, 2010, U.S. Citizenship and Immigration Services (“USCIS”) provided notice regarding its plan to increase filing fees for many petitions and applications. The last time a similar scenario transpired, in 2007, it took the Department of Homeland Security (“DHS”) four months from issuance of a proposed rule until publication of a final rule – lightning speed in the context of government regulatory activity.

   As Supplementary Information to the proposed rule points out, the Immigration and Nationality Act (“INA”) provides that fees must be collected at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to those applying for certain immigration benefits. This means that, when no fee is charged (as in the case of asylum claims), or when the fee charged does not cover the actual cost of adjudication (as in the case of temporary protected status claims, for which the statutory fee is set at $50), the cost must be recovered by fees charged to other applications.

   The comprehensive review leading to the June 11 proposed rule began in 2009. Prior to 2009, such comprehensive fee reviews were undertaken in 2007 and, before that, in 1998. As stated in the proposed rule, the time lapse from 1998 – 2007 meant that large fee increases (a weighted average of 86 percent) were necessary “to recover both base costs and costs for improving operations and service-wide performance needs.” According to the Supplementary Information, USCIS is now committed to comprehensive reviews of the Immigration Examination Fee Account every two years, so that it “is able to implement more moderate fee changes and avoid periods of inadequate revenue that typically precede large fee increases.”

   The agency suggests that “productivity gains achieved from investments in technology and modernization of agency operations….should result in improved performance and lower costs.” However, the same general notion was expressed in connection with the 2007 fee increases, and technological advances and modernization do not come cheaply. This makes it difficult to imagine that future comprehensive reviews will result in a downward trend for adjudications fees. We note that, elsewhere, the Supplementary Information states that “[t]he purpose of reforming immigration fees is to improve the transparency and precision of how fees are determined and to develop, as a matter of discretion, fees that reflect more closely actual costs of adjudication and assignable associated costs.” (emphasis added) Only time will tell how that discretion will be exercised.

   Details regarding the proposed increases are as follows:

   - I-90: Application to Replace Permanent Resident Card – now $290; new fee $365 (+$75)
   - I-102: Application for Replacement/Initial Nonimmigrant Arrival/Departure Record - now $320; new fee $330 (+$10)
   - I-129: Petition for a Nonimmigrant Worker - now $320; new fee $325 (+$5)
   - I-129F: Petition for Alien Fiance(e) - now $455; new fee $340 (-$115)
   - I-130: Petition for Alien Relative - now $355; new fee $420 (+$65)
   - I-131: Application for Travel Document - now $305; new fee $360 (+$55)
   - I-140: Immigrant Petition for Alien Worker - now $475; new fee $580 (+$105)
   - I-290B: Notice of Appeal or Motion - now $585; new fee $630 (+$45)
   - I-360: Petition for Amerasian, Widow(er), or Special Immigrant - now $375; new fee $405 (+$30)
   - I-485: Application to Register Permanent Residence or to Adjust Status (14 years of age and older) - now $930; new fee $985 (+$55)
   - I-485: Application to Register Permanent Residence or to Adjust Status (under 14 years of age) - now $600; new fee $635 (+$35); this fee applies when submitted concurrently for adjudication with the I-485 of a parent, the applicant is seeking to adjust status as the derivative of the parent, and the child’s application is based on being a “close relative of the same individual who is the basis for the child’s parent’s adjustment of status.”
   - I-526: Immigrant Petition by Alien Entrepreneur - now $1,435; new fee $1,500 (+$65)
   - I-539: Application to Extend/Change Nonimmigrant Status - now $300; new fee $290 (-$10)
   - I-600/600A: Petition to Classify Orphan as an Immediate Relative/ Application for Advance Processing of Orphan Petition - now $670; new fee $720 (+$50)
   - I-687: Application for Status as a Temporary Resident – now $710; new fee $1,130
   - I-690: Application for Waiver on Grounds of Inadmissibility – now $710; new fee $1,130 (+$420)
   - I-694: Notice of Appeal of Decision – now $545; new fee $755 (+$210)
   - I-698: Application to Adjust Status from Temporary to Permanent Resident – now $1,370; new fee $1,020 (-$350)
   - I-751: Petition to Remove the Conditions on Residence, based on marriage - now $465; new fee $505 (+$40)
   - I-765: Application for Employment Authorization, pursuant to 8 CFR 274a.13 - now $340; new fee $380 (+$40)
   - I-817: Application for Family Unity Benefits - now $440; new fee $435 (-$5)
   - I-824: Application for Action on an Approved Application or Petition - now $340; new fee $405 (+$65)
   - I-829: Petition by Entrepreneur to Remove Conditions - now $2,850; new fee $3,750 (+$900)
   - Civil Surgeon Designation: now $0; new fee $615
   - I-924: Application for Regional Center Under the Immigrant Investor Pilot Program; now $0; new $6,230
   - N-300: Application to File Declaration of Intention; now $235; new fee $250 (+$15)
   - N-336: Request for Hearing on a Decision in Naturalization Proceedings; now $605; new fee $650 (+$45)
   - N-400: Application for Naturalization - now $595; new fee $595 (no change)
   - N-470: Application to Preserve Residence for Naturalization Purposes; now $305; new fee $330 (+$25)
   - N-565: Application for Replacement Naturalization/Citizenship Document; now $380; new fee $345 (-$35)
   - N-600/N-600K: Application for Certification of Citizenship - now $460; new fee $600 (+$140)
   - Waiver applications: including I-191 Application for Advance Permission to Return to Unrelinquished Domicile; I-192 Application for Advance Permission to Enter as a Non-Immigrant; I-193 Application for Waiver of Passport and/or Visa; I-212 Application for Permission to Reapply for Admission into the U.S.; I-601 Application for Waiver of Grounds of Excludability; I-612 Application for Waiver of the Foreign Residence Requirement - now $545; new fee $585 (+$40)
   - Biometrics: Capturing Biometric Information - now $80; new fee $85 (+$5)
   - Immigrant visa: as the proposed rule notes, although the Department of State issues visas, USCIS must complete related activities prior to issuance of a Permanent Resident Card. While no fee is currently assessed, a fee of $165 is proposed.

   The proposed rule is available in the Federal Register online, at http://edocket.access.gpo.gov/2010/pdf/2010-13991.pdf. Written comments regarding the proposed fee increases must be submitted no later than July 26, 2010.

2. Comprehensive Immigration Reform: On the Table?

   On July 1, President Obama spoke at American University in Washington, DC, addressing those assembled regarding his support for comprehensive immigration reform (“CIR”). Early in his speech, the President stated that “the system is broken and everyone knows it.” He noted that new waves of immigration have historically been contentious, with new immigrants subject to discrimination and negative stereotyping - especially in times of economic trouble such as those in which we now live. He asserted, as he has in the past, that his Administration will not just “kick the can down the road” on difficult issues, and immigration reform is no exception.

   To that end, he recognized that achieving CIR must be a bipartisan effort because of simple mathematics, as there are insufficient Democratic votes in Congress to pass legislation. In doing so, he noted that Senators John McCain (R-AZ) and Edward Kennedy (formerly D-MA) crafted CIR that he previously supported as Senator from Illinois; his predecessor, President George W. Bush, supported CIR; and that, more recently, Senators Lindsay Graham (R-SC) and Charles Schumer (D-NY) took up the mantle. He also noted, however, that immigration is an emotional issue that lends itself to demagoguery and there is a natural impulse to defer action.

   In this context, he cast the debate as one involving two poles: one side insists that CIR can come only after U.S. borders are sealed and secure, and that all those illegally in the U.S.A. should be deported rather than offered a path to legal residency or citizenship. Behind this, he stated, is the notion that allowing such benefits would reward law-breakers. As he described it, the other side, often casting its position in moral terms, objects to enforcing even existing laws that allow deportation of those just trying to earn a living.

   As the President put it, CIR can come only by getting past these two poles of the debate. Americans, he stated, are skeptical about blanket amnesty. However, they are also skeptical about prospects for rounding up and deporting 11 million people, which would disrupt economies and communities in ways that most Americans would find intolerable. Along these lines, he noted that immigrants here illegally are intricately woven into the American fabric – many have jobs and U.S.-born children. Others have children essentially raised as Americans, who learn only when they apply to college that they are here illegally. Among the estimated 11 million undocumented immigrants, many are settled in low-income sectors of the economy. Because they live in the shadows, they can be exploited by unscrupulous employers, taxes are not paid on wages earned under the table, and crimes go unreported - making it more difficult for police to keep neighborhoods safe. He noted that local and state laws, such as that recently enacted in Arizona, exacerbate difficulties for police seeking to enforce criminal laws and create a patchwork of laws when one national standard is needed.

   Because every nation has a right and an obligation to set its own laws regarding residency and citizenship, the President stated, the 11 million who broke U.S. laws in coming or staying here should be held accountable. As he sees it, this means demanding responsibility from those living illegally in the U.S.A.: they must admit breaking the law, register for immigration benefits, pay taxes, and learn the English language. He rightfully questions whether Congress will have the courage and political will to enact CIR, particularly in a midterm election year when many elected representatives may be reluctant to formally pronounce a position on this controversial issue. The simpler, less politically risky, maneuver for any elected official is to just keep kicking that can down the road.

3. H-1B Update

   USCIS has announced that, as of June 25, approximately 23,500 “cap eligible” H-1B petitions had been accepted under the regular cap for fiscal year 2011. “Cap eligible” petitions refer to the number of petitions USCIS has accepted for the particular cap, and includes cases that have been approved or are still pending, but not those petitions that have been denied. The “regular cap” refers to petitions filed for aliens who qualify for H-1B status by virtue of a bachelor’s degree or its equivalent. The June 25 total is an increase of only 2,700 over the number reported on May notice of appearance, and is a sharp decline from the approximately 44,800 cap-subject petitions that were filed by June 26, 2009 for FY 2010. As of June 25, 2010, 10,000 H-1B cap eligible petitions qualifying for the advanced degree exemption had been accepted for FY 2011, an increase of 1,300 over the May 28 total. Further details are available at http://www.uscis.gov/h-1b_count.