A Breakdown of the Crisis-Era Shakeups at USCIS

A Breakdown of the Crisis-Era Shakeups at USCIS

Posted by: Park Evaluations

Written By: Lynn O’Brien, Senior Associate Attorney in the Northern Virginia office of Berry Appleman & Leiden LLP

The widely reported changes at USCIS have already had major consequences for foreign nationals looking to enter the United States. From fee hikes to narrowly avoided furloughs, to a proposed expansion of the premium processing program in an attempt to salvage some funds to stave off those furloughs, the leading sentiment among attorneys, petitioning companies, and would-be beneficiaries alike has been one of apprehension. With so much in flux, when will the other shoe drop?

Background: A Deficit to Match the Times

Like many arms of the federal government, USCIS has found itself with a sizeable budget deficit due in large part to fallout from the COVID-19 pandemic. Scrambling for a fix during H1B cap season, the agency pled with Congress for $1.2 billion in emergency funding, which it suggested it would repay with a 10% added fee to every application.

Barring this emergency relief, the agency has proposed to furlough some 13,400 employees—or approximately two-thirds of its total workforce. This move would upend the already severely backlogged immigration system. Coming as it would on the heels of Trump’s far-reaching executive order, immigration attorneys are well-justified in wondering just what the process would look like if and when those employees resume their posts.

USCIS Closing the Gap: Fee Hikes and a New Cap Season

With laying off the majority of its workforce a painful last resort, USCIS has sought instead to search for new funds from the process itself, beginning with a Final Rule announced in early August that saw the filing fees for many petition types skyrocket. Below are the new figures for some of the most common non-immigrant visa categories:

PetitionExisting FeeNew Fee

These new fees are slated to take effect October 2nd, at the same time that the agency is looking to expand the fees for its premium processing program and urgently reallocate the usually earmarked funds towards keeping its workforce in motion.

While the near doubling of the L-1 filing fee is certainly the most striking of these hikes, H-1B petitioners likewise have a lot to consider with the announcement of another effort by the government to summon up some funds: the second round of the H-1B cap season lottery. Intended to fill the 85,000-petition quota not met following the first round of selections, USCIS is certainly hoping to draw in some additional funds with these late H-1B cap petitions.

Newly selected petitions will have until November 16th to file, and with the massive delays in the system expected to get worse, this has, for many, become a more torturous decision to make as they wonder whether the position itself will still be viable by the time they are issued a visa (if the beneficiary is outside the U.S.). That said, anyone looking to file would be well-advised to get their petitions in before the changes take effect in October.

Lynn O’Brien is a Senior Associate Attorney in the Northern Virginia office of Berry Appleman & Leiden LLP. She concentrates her practice on business immigration matters including nonimmigrant and immigrant visa issues, advising clients on every step of the process.  She represents clients in various industries so that US employers can obtain the talent they need when they need it. It’s no surprise that she has spoken on topics including best practices for responding to Requests For Evidence since she loves the art of arguing with the government. She also frequently speaks on other topics including the unpredictable immigration environment and program management issues, bringing the insider perspective from a firm devoted exclusively to corporate immigration. She also wants you to know she can beat you at 80s music trivia.