USCIS Publishes a Correction to the Fee Schedule Changes

The Department of Homeland Security on Tuesday, March 19, published “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements; Correction”, correcting the final rule that appeared in the Federal Register on January 31, 2024. The final rule amended DHS regulations to adjust certain immigration and naturalization benefit request fees charged by USCIS and made certain changes.

The rule remains effective April 1, 2024.

Final Rule and the Changes

On January 31, 2024, the Department of Homeland Security (DHS) published a final rule in the Federal Register at 89 FR 6194 changing immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS), fee exemptions and fee waiver requirements, premium processing time limits, and intercountry adoption processing (FR Doc. 2024-01427). After review of the published document, DHS identified a number of technical and typographical errors that are identified and corrected in the correcting document published on March 19, 2024.

The provisions in this correcting document are effective as if they had been included in the final rule document that appeared in the January 31, 2024, Federal Register.

The corrections do not change how DHS will apply the final rule; i.e., DHS will apply the corrected final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after April 1, 2024.

Summary and Explanation of Corrections

• Fee exemptions and waivers: As discussed in the preamble, the final rule expands fee exemptions for certain filing categories.
  • DHS identified a number of places where these fee exemptions were not accurately contained in either the preamble or regulatory text:
    • Form I-765, Application for Employment Authorization: The final rule created fee exemptions for a renewal or replacement Form I-765, Application for Employment Authorization, when filed by the following groups:
      • Persons seeking or granted special immigrant visa or status as an Afghan or Iraqi translator or interpreter, Iraqi nationals employed by or on behalf of the U.S.
        Government, Afghan nationals employed by or on behalf of the U.S. Government or employed by the International Security Assistance Force (ISAF), and their
        derivatives.
      • Abused spouses and children of U.S. citizens and lawful permanent residents seeking cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2).3
      • Current and former U.S. armed forces service members.
    • Form I-290B, Notice of Appeal or Motion: The fee for Form I-290B is waivable for any benefit where the underlying form fee is free or waived. However, in the preamble DHS inadvertently omitted a fee waiver for Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse, in Table 5C.7
    • Form I-601A, Application for Provisional Unlawful Presence Waiver: The final rule also created an additional fee exemption for Form I-601A, Application for Provisional Unlawful Presence Waiver, when filed by a person seeking or granted Special Immigrant Juvenile (SIJ) classification. However, DHS inadvertently omitted this fee exemption from the regulatory text and Table 5C.
    • Adoption Fees: The final rule provides fee exemptions for adoption-related forms and summarizes the new exemptions in Table 7: Adoption Fees.  However, this table was mistakenly referred to as “Table 8” in the preamble.
    • Special Rule Cancellation of Removal: The final rule allows persons to request a waiver of any fee associated with a request for special rule cancellation of removal as a spouse or child that has been battered or subjected to extreme cruelty.
    • B. Online Filing fee for Form I-539, Application to Extend/Change Nonimmigrant Status:  In the preamble, DHS incorrectly stated the final online filing fee for Form I-539,
      Application to Extend/Change Nonimmigrant Status. The final rule preamble stated that the Form I-539 fee for paper filing was $470 and the online filing fee was also $470.14. While DHS used the paper filing fee twice in the same sentence, it meant to include the $50 discount for online filing, making the Form I-539 fee $420 when filed online.
• Corrections to Final Regulatory Flexibility Analysis Tables: DHS corrects three tables in the Final Regulatory Flexibility Analysis section of the preamble. DHS identified that the note under Table 12b, in the preamble, on page 6362, inadvertently states the CNMI Educational Fund fee is $30.19 The note should have stated that the CNMI Educational Fund fee is $210. This correction does not impact the analysis of the regulation. DHS corrects two rows in both Table 15 on page 6365, and Table 17 on page 6366. The dollar amount in the columns A through F in the row labeled “L-1A/L-1B/LZ Blanket” and the dollar amounts in columns A through F in the row labeled O-1/O-2 petitions were transposed in both tables. The correct amounts are shown in Table 1 on page 6198 of the final rule. These corrections do not impact the analysis of the regulation.
• Definition of Nonprofits: DHS defined the term “nonprofit” on page 6386, column 2, in the final rule to offer discounts to the Asylum Program Fee and Form I-129, Petition for Nonimmigrant Worker, and Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker. DHS intended to administer the discount for petitioners in the final rule
  consistent with the discount provided from the American Competitiveness and Workforce Improvement Act (ACWIA).
  • In this correction, DHS clarifies the definition to include not-for-profit primary or secondary educational institutions, or institutions of higher education, as defined in
    section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a). This correction is consistent with the preamble and DHS’ intent.
• Online Filing fee for Small Employers and Nonprofits: The final rule implements various discounted fees, sometimes with exceptions. For example, DHS provides discounted fees to small employers and nonprofits for Forms I-129 and I-129CW and the Asylum Program Fee. DHS also revised the range of online filing fees that were in the proposed rule to instead use a $50 discount for online filing in most cases. DHS made exceptions to the $50 discount in limited circumstances, like when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee. DHS did not intend for customers to combine both the discounts for online filing and for small employer and nonprofit fees.
  • DHS applies the same definition of small employers and nonprofits to both the Asylum Program Fee and the fees for Forms I-129 and I-129CW.  The preamble and regulatory text specify that the online filing discount does not apply to the H-1B registration fee and the Asylum Program Fee. DHS did not intend to apply online filing discount in addition to providing small employer and nonprofit discounts for the fees for Forms I-129 and I-129CW. Various statements and tables in the preamble and supporting documentation support this assertion.
  • DHS corrects the final rule to clarify the $50 online filing discount does not apply to the small employer and nonprofit petitions fees for Forms I-129, I-129CW and the
    Asylum Program Fee by amending 8 CFR 106.2(a)(3); adding 8 CFR 106.2(a)(3)(xi).
• Fee for Form I-129CW for a small employer and nonprofit: As discussed in the preamble to the final rule, for nonprofits and businesses with 25 or fewer FTE employees (including any affiliates and subsidiaries) filing Forms I-129 and I-129CW for the applicable nonimmigrant classification, DHS is setting the fee at either the current $460 fee or half of the new fee whichever is higher. The full fee for Form I-129CW is $1,015.32 Half of $1,015 rounded to the nearest $5 is $510.
  • The final rule for filing Form I-129CW listed a small employer and nonprofit fee of $510 in various text and tables in the final rule preamble. Various supporting documents in the docket likewise list the fee as $510. However, the regulatory text for Form I-129CW inadvertently listed the prior fee which was $460 at 8 CFR 106.2(a)(4)(ii). Therefore, DHS corrects the regulatory text portion of the final rule on page 6387, column 1, 8 CFR 106.2(a)(4)(ii), to indicate that small employers and nonprofits must submit a fee of $510 with Form I-129CW.
• References to form instructions: As stated in the final rule, USCIS is removing fee, fee waiver, fee exemption, and fee payment information from the individual information collection (IC) instructions by consolidating it into the USCIS Form G–1055, Fee Schedule, and placing it online on the USCIS website www.uscis.gov. Form instructions will no longer list fees.
• H-1B Registration Fee Regulatory Text: DHS exempted the H-1B Registration Fee from the $50 online filing discount in the regulatory text. However, it created an unnecessary third level paragraph without a (i) or (ii) preceding the (iii) at 8 CFR 106.2(c)(11)(iii). As such, DHS corrects the regulatory text to add the text from the third level at 8 CFR 106.2(c)(11)(iii) to the second level at 8 CFR 106.2(c)(11).
• Form I-800 Fee Regulatory Text: As discussed in the preamble to the final rule, DHS is setting the fee for Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, at $920, unless an exemption applies.

The Fee Changes and the Administrative Procedure Act

Section 553(b) of the Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. In addition, section 553(d) of the APA requires agencies to delay the effective date of final rules by a minimum of 30 days after the date of their publication in the Federal Register. Both of these requirements can be waived if an agency finds, for good cause, that the notice and comment process and/or delayed effective date is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

DHS believes there is good cause for publishing this correction document without prior notice and opportunity for public comment and with an effective date of less than 30 days because DHS finds that such procedures are unnecessary. This document corrects technical and typographic errors in the preamble (including tables) and regulatory text, but does not make substantive changes to the policies that were adopted in the final rule.

This document merely conforms erroneous portions of the final rule to the agency’s clearly expressed contemporaneous intent. As a result, this correcting document’s sole function is to ensure that the information in the January 31, 2024 final rule accurately reflects the policies adopted in that final rule, prior to which DHS issued a notice of proposed rulemaking and received public comment. Therefore, DHS believes that it has good cause to waive the notice and comment and effective date requirements of section 553 of the APA.

Erickson Insights & Analysis

The fee changes, which are to go into effect on April 1, have been challenged by a lawsuit on March 19, 2024. Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.