Copland and Brenner

Table of Contents

1. Fee Increase to Take Effect July 30, 2007
2. In Brief: Recent Developments
3. Quote of the Month

1. Fee Increase to Take Effect July 30, 2007

   In 23 pages of bad news to those seeking U.S. immigration benefits, a final rule increasing U.S. Citizenship and Immigration Services (“USCIS”) filing fees was published in the Federal Register on May 30. It took the Department of Homeland Security four months to do so after publication of a proposed rule, and after considering comments that were due by April 2. As we have pointed out in the past, the Department works with amazing efficiency when writing rules involving filing fee increases – but not so efficiently when rules involving immigration benefits are involved. Those seeking such benefits should note that the “ rule is effective July 30, 2007. Applications or petitions mailed, postmarked, or otherwise filed, on or after July 30, 2007 must include the new fee. ”

   The new rule states that “USCIS is revising these fees because the current fee schedule does not adequately reflect current USCIS processes or recover the full costs of services provided by USCIS. Without an immediate adjustment of the fee schedule, USCIS cannot provide adequate capacity to process all applications and petitions in a timely and efficient manner. In addition, the revised fees will eliminate USCIS’ dependency on revenue from interim benefits, temporary programs, and premium processing fees. This rule also merges fees for certain applications and petitions so applicants and petitioners will only have to pay a single fee. In addition, the rule expands the classes of aliens that will be exempt from paying filing fees for certain immigration benefits, and modifies the criteria for waiving the filing fee due to an individual’s inability to pay. Based on comments received by USCIS during the public comment period, this rule changes the fees for adjustment of status applications, and the fee waiver and exemption eligibility criteria for several immigration benefits. This final rule will provide sufficient funding for USCIS to meet national security, customer service, and processing time goals, and to sustain and improve service delivery.”

   Details regarding the proposed increases as to certain specific, commonly used, petitions and applications are as follows:

   - I-90: Application to Replace Permanent Resident Card – now $190; new fee $290 (+$100)
   - I-102: Application for Replacement/Initial Nonimmigrant Arrival/Departure Record - now $160; new fee $320 (+$160)
   - I-129F: Petition for Alien Fiance(e) - now $170; new fee $455 (+$285); “no fee for a K-3 spouse...who is the beneficiary of an immigrant petition filed by a United States citizen on Form I-130.”
   - I-129: Petition for a Nonimmigrant Worker - now $190; new fee $320 (+$130)
   - I-130: Petition for Alien Relative - now $190; new fee $355 (+$165)
   - I-131: Application for Travel Document - now $170; new fee $305 (+$135)
   - I-140: Immigrant Petition for Alien Worker - now $195; new fee $475 (+$280)
   - I-191: Application for Advance Permission to Return to Unrelinquished Domicile – now $265; new fee $545
   - I-192: Application for Advance Permission to Return to Enter as a Nonimmigrant – now $265; new fee $545
   - I-193: Application for Waiver of Passport and/or Visa – now $265; new fee $545
   - I-290B: Appeals - now $385; new fee $585 (+$200); applies to an appeal from any decision over which the Board of Immigration Appeals does not have appellate jurisdiction
   - I-290B: Motions - now $385; new fee $585 (+$200); applies to motions to reopen or reconsider any DHS decision over which the Executive Office for Immigration Review does not have jurisdiction
   - I-360: Petition for Amerasian, Widow(er), or Special Immigrant - now $190; new fee $375 (+$185); “except there is no fee for a petition seeking classification as an Amerasion; a self-petitioning battered or abused spouse, parent, or child of a U.S. citizen or lawful permanent resident; or a Special Immigrant - Juvenile"
   - I-485: Application to Register Permanent Residence or to Adjust Status (14 years of age and older) - now $325; new fee $930 (+$605)
   - I-485: Application to Register Permanent Residence or to Adjust Status (under 14 years of age) - now $225; new fee $600 (+$375); this fee applies "when submitted concurrently for adjudication with the I-485 of a parent and the applicant is seeking to adjust status as the derivative of the parent, based on a relationship to the same individual who provides the basis for the parent's adjustment of status, or under the same legal authority as the parent; no fee for an applicant filing as a refugee.; provided that no additional fee will be charged for a request for travel document (advance parole) or employment authorization filed by an applicant who has paid the I-485 application fee, regardless of whether the Form I-131 or Form I-765 is required to be filed by such applicant to receive these benefits."
   - I-539: Application to Extend/Change Nonimmigrant Status - now $200; new fee $300 (+$100)
   - I-600/600A: Petition to Classify Orphan as an Immediate Relative/ Application for Advance Processing of Orphan Petition - now $545; new fee $670 (+$125)
   - I-751: Petition to Remove the Conditions on Residence, based on marriage - now $205; new fee $465 (+$260)
   - I-765: Application for Employment Authorization, pursuant to 8 CFR 274a.13 - now $180; new fee $340 (+$160); this regulatory provision applies to those authorized to be employed under 8 CFR 274a.12(3)(3) - (8) and (10) - (13), who must file an I-765 in order to obtain documentation evidencing this fact
   - I-817: Application for Family Unity Benefits - now $200; new fee $440 (+$240)
   - I-824: Application for Action on an Approved Application or Petition - now $200; new fee $340 (+$140)
   - Waiver applications (including 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 $265; new fee $545 (+$280)
   - N-400: Application for Naturalization - now $330; new fee $595 (+$265)
   - N-600: Application for Certification of Citizenship - now $255; new fee $460 (+$205) for applications filed on behalf of a biological child; new fee $420 (+$185) for applications filed on behalf of an adopted child
   - Biometrics: Capturing Biometric Information - now $70; new fee $80 (+$10)

   In Supplementary Information to the final rule, DHS noted that it received more than 3,900 comments to the proposed rule, and that they "ranged from strongly supportive of the increased fees to strongly critical." "Many comments suggested that even greater increases could be used to further improve customer service, stating that this result would reduce the perceived need for an individual to seek the assistance of an attorney to understand and navigate the immigration benefits application and petition process....Additionally, some comments pointed out that many aliens make large payments to those who help them enter the United States illegally, suggesting that this demonstrated the willingness to pay more to enter and remain in this country legally or illegally."

   In addition to the fee increases themselves, notable points in the final rule include the following:

   - "USCIS plans to transform the current paper based process into an electronic adjudicative process. This transformation will allow USCIS to better detect and deter those who seek to do harm or violate the laws of the United States, while facilitating benefits processing for eligible, low-risk persons." For those without internet access, "paper submissions will remain an option."
   - the agency "is committed to substantial reductions in processing times by the end of FY 2008 for four key applications," those being the I-90, I-140, I-485, and N-400, which "represent almost one-third of the USCIS total workload."
   - 1,004 Adjudication Officers and support staff will be added as permanent employees, but "twenty percent of the new staff will be other than permanent employees."
   - the fee structure maintains the longstanding "proposition that the costs of providing immigration benefits should be borne by those applying for those benefits," rather than by appropriation or some other taxpayer-supported revenues
   - the I-485 filing fee exemption for "refugees" does not include asylees, who must pay applicable filing fees. The rationale offered is that "a refugee must apply for adjustment of status within one year of admission as a refugee" under Section 209(a) of the Immigration and Nationality Act ("INA"), and because refugees "have been affirmatively invited to come to the United States for permanent resettlement" while "asylees have sought admission of their own accord and requested to be allowed to stay." "While USCIS agrees that both asylees and refugees should receive full protection from prosecution, it is a reasonable policy choice to be more generous in awarding immigration benefits to those who are invited."
   - based on the projected fee-paying volume, implementation of the new rule will provide USCIS with an additional $1.081 billion in FY 2008 and FY 2009 over revenues that would be collected under the current fee structure; this anticipates 4.742 million petitions and applications, and 2.196 million requests for biometric services
   - fee waivers may be requested only for the following: biometrics; Forms I-90; Form I-485 (but only for "T" nonimmigrant victims of human trafficking, "U" victims of violent crime who assist in the prosecution, asylees, approved self-petitioners under the Violence Against Women Act and those not subject to demonstrating he or she is not likely to become a public charge); I-751; I-765; I-817; N-300; N-336; N-400; N-470; N-565; N-600; N-600K; and 290B and motions filed with USCIS relating to the foregoing forms.

2. In Brief: Recent Developments

   USCIS Warns of Fraud Potential: With fairly extensive coverage of immigration bills pending in Congress, some people are under the misapprehension that a new law is already in place. This, of course, is not the case. Accordingly, USCIS issued an update on May 31, advising the public that “[50]egislation must be passed by both the House of Representatives and the U.S. Senate, and signed by the President, before it becomes law.” Since this has not occurred, “individuals should be cautious of any persons, organizations or businesses claiming to assist in applying for benefits under the immigration reform legislation.”
   
   Study Finds Significant Disparities in Asylum Rulings: On May 31, The New York Times reported on a study by three law professors whose work revealed (or confirmed) wide and disturbing disparities in the outcome of asylum claims throughout the U.S.A. For example, “Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.” As The Times puts it, the “study offers an unusually detailed window into the overburdened and often erratic immigration courts.” Aptly titled Refugee Roulette: Disparities in Asylum Adjudication , the study is online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id="983946."

   The Abstract to the study notes that it “analyzes databases of merits decisions from all four levels of the asylum adjudication process: the 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005....In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.”

3. Quote of the Month

   “Because of rapid successive amendments, the immigration statutes are now an archeological dig in which layer upon layer of provisions, often with different effective dates, must be excavated to determine what is or is not reviewable. Ever changing substantive law, including new regulations and court glosses, adds further complications. The result, although partly due to real world conditions and inherent complexities of the subject, is a maze of confusion.” Mahmoud vs. Gonzales , No. 06-1369 U.S., 1st Circuit Court of Appeals, May 4, 2007.