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Federal Court Enjoins New USCIS Fee Schedule

1 Oct

On September 29, the Federal District Court for the Northern District of California issued a nationwide injunction halting U.S. Citizenship and Immigration Services’ (USCIS) implementation of its new fee schedule, which it published earlier this year with a scheduled effective date of October 2.

The new fee schedule would have increased USCIS filing fees by a weighted average of 21 percent.  Some fees, such as the fee to apply for naturalization to U.S. citizenship, would have almost doubled.  Additionally, certain applications normally included with an I-485 Application to Adjust Status (“green card” application) and ordinarily covered by the same filing fee, were “unbundled” and assigned separate fees.  This measure would have doubled the filing fee most applicants would pay when filing their “green card” applications. 

According to USCIS, this proposed fee increase resulted from a “comprehensive biennial fee review” and was intended to recover the agency’s costs of providing adjudication and naturalization services. USCIS is a fee-funded agency, so instead of receiving a portion of the federal tax revenue like most agencies, it is funded by the fees it charges for the immigration and naturalization processes it oversees.  

USCIS responded to the injunction with the following statement: 

“This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined.  Unlike most government agencies, USCIS is fee funded.  As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services.  This is nothing new or abnormal.  In fact, the fee rule is two years behind schedule, and is a smaller percentage increase than the previous.  In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery.  This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people.” 

The government may appeal the injunction, and the injunction could be “stayed,” or halted, pending further litigation.  It is too early to tell whether and when such an appeal and stay might occur.  Foster LLP will continue to monitor developments in connection with the USCIS fee schedule and the injunction blocking its implementation and will make future updates available via the Foster LLP website at www.fosterglobal.com.