Biden Changing Asylum Costs Could Land Him in Court

New rule changes by U.S. Citizenship and Immigration Services (USCIS) set to be implemented this spring could lead to lawsuits against the Biden administration, an expert told Newsweek.

The U.S.-Mexico border has been a source of consternation, notably among political officials and factions who have long disagreed on how to deter illegal immigration. The situation, dubbed by some as a crisis, has escalated in recent weeks due to a U.S. Supreme Court decision that further clouded what federal Border Patrol agents and the Texas National Guard can legally do to stop unlawful migrants.

Prospects of a bipartisan border security deal, currently being negotiated by Republicans and Democrats in the House and Senate, could be bleak considering that many House Republicans—including Speaker Mike Johnson—have soured on legislation purportedly aiding asylum and providing President Joe Biden authority to intervene. Johnson has stated that a bill that doesn't go far enough is "dead on arrival" once it reaches his chamber.

The USCIS final rule, outlined in a 207-page document released Wednesday, goes into effect on April 1 and is the first time that fees will have been adjusted since December 2016.

One of the most glaring changes involves U.S. employers who now must foot a larger bill to hire foreign nationals. The new "Asylum Program Fee" of $600 per worker must be paid by employers that file Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker.

The Department of Homeland Security (DHS) exempts that fee for nonprofit petitioners and reduces it by half for small employers, the latter of which must pay $300 for full-time employees of companies with 25 or fewer employees.

Immigration attorney Rosanna Berardi told Newsweek via email that she expects legal challenges before the final rule goes into effect.

She cited how a final rule that aimed to raise fee schedules with an effective date of October 2, 2020, never came to fruition due to a U.S. district court issuing an injunction on September 29, 2020.

"I do think we'll see U.S. employers file lawsuits, and I would not be surprised if we saw this same story play out again here in 2024," she said.

While the USCIS fee increases aim to better align the agency's revenue with its operational and service delivery costs, she said the asylum fee "is viewed as an unequal distribution of financial responsibility" that may potentially deter businesses from engaging in the visa sponsorship process.

A concern is the United States' ability to attract and retain global talent, which in turn could impact economic competitiveness.

"These forms are primarily used by American employers to sponsor foreign nationals for employment opportunities through H-1B, L-1, E visa and green card sponsorship," she said. "It's an additional fee on top of other required filing fees, and this particular one is raising concerns from the business community.

"It represents an added financial burden on companies seeking to hire international talent, raising questions about the fairness of reallocating the costs associated with asylum processing to U.S. businesses. This fee could disproportionately affect smaller enterprises and startups which rely heavily on specialized skills from foreign nationals to drive innovation and growth."

Eileen Lohmann, senior associate at the global immigration law firm BAL, told Newsweek via email that since companies must file Form I-129 to extend their employee's status, a company may need to pay this fee multiple times for one beneficiary in addition to the filing fees.

"This is the first time the agency is imposing a fee on business-related applications as a separate surcharge," Lohmann said. "In the rule issued this week, we see it as a discrete amount, in addition to the significant increases in base filing fees that USCIS has determined are necessary to cover the costs of adjudications."

Other fee hikes include a 70 percent increase for the H-1B regular filing fee, increasing from $460 to $780; a 201 percent increase for the L-1 regular filing fee, from $460 to $1,385; a 129 percent increase for the O-1 regular filing fee, from $460 to $1,055; and a 121 percent increase for E and TN regular filing fees, from $460 to $1,015.

USCIS said in a statement that the fee increases are being made to recover its operating costs more fully and support timely processing of new applications.

"Unlike many other federal agencies, we are almost entirely fee funded," they said in a press release. "Approximately 96 percent of our funding is from filing fees, and only about 4 percent is from congressional appropriations."

Congress appropriated $275 million in fiscal year 2022 to reduce backlogs at that time, with the USCIS imploring continued congressional support "to keep pace with incoming cases and avoid future backlogs."

This final rule was adopted prior to the proposed border security legislation being negotiated on Capitol Hill, and USCIS funding requested within that supplemental funding will not be covered by any increased fees.

Revenue expected to be generated by the new fee schedule is approximately $4.42 billion per year—less than the $5.2 billion projected in January 2023 and 14.1 percent less revenue compared to that proposal.

That is due to less of a cost burden on filers, the USCIS said, and the final rule removing $727 million of average annual estimated costs by transferring costs to premium processing revenue and reducing the work to be funded by the Asylum Program Fee, among other budget measures to improve efficiency.

Update 02/02/24, 1:34 p.m. ET: This story was updated with comment from Eileen Lohmann.