20
May 27, 2016
Bhatia Law Firm, LLP
Prashant Bhatia, Esq. Attorney at Law
Seton Hall University Law Graduate
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OTHER FIRM ATTORNEYS ADMITTED IN NY, NJ, D.C& CALIFORNIA
VOLUME DISCOUNTS ON BULK H1-B FILINGS
IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
USCIS TO HIKE FILING FEES
AND IMPOSE A NEW FEE
FOR THE EB-5
INVESTOR PROGRAM BENEFIT
J
ust when employers in the United States
were unhappy and raising concerns about
the steep increase in the statutory fee for
certainH1B and L1 petitions, and about the
lengthy delays in adjudicating petitions, the
Department of Homeland Security (DHS)
threw another curved ball. Putting into prac
tice the “Full Cost Recovery” theory, DHS is
proposing to raise USCIS filing fees by a
weighted average of 21 percent and impose a
new fee on the Regional Centers with regard
to EB5 processing in order to fully recover
costs for its services and tomaintain adequate
service. The proposed rule has been pub
lished in the Federal Register and is open for
public comments until July 5, 2016.
As many are aware, U.S. Citizenship and Im
migration Services (USCIS) is primarily
funded by immigration and naturalization
benefit request fees charged to applicants and
petitioners. Fees collected from individuals
and entities filing immigration benefit re
quests are deposited into the Immigration Ex
aminations FeeAccount (IEFA) and used to
fund the cost of processing immigration ben
efit requests.
USCIS calculates its fees to recover the full
cost of USCIS operations, which do not in
clude the limited appropriated funds pro
vided by Congress. USCIS anticipates if it
continues to operate at current fee levels, it
will experience an average annual shortfall of
$560million between revenues and costs.
This projected shortfall poses a risk of de
grading USCIS operations. The proposed rule
would eliminate this risk by ensuring full cost
recovery. As such, DHS is proposing to ad
just fees by a weighted average increase of 21
percent (%).
Some themajor highlights of the proposed
rule include, but are not limited to:
•
EB5 (IMMIGRANT INVESTOR) VISAS:
NEWFEE FORTHEANNUAL CERTIFI
CATIONOF REGIONAL CENTER, FORM
I924A.
In order to recover the full cost of processing,
DHS is proposing to establish a new fee of
$3,035.00 for theAnnual Certification of Re
gional Center, Form I924A, pertaining to the
EB5 Regional Center investor visa program
benefit. As many are aware, Form I924Ais
used by Regional Centers to demonstrate
continued eligibility for their designation. Al
though approved regional centers are re
quired to file the Form I924Aannually, there
is currently no filing fee and the processing
cost is borne by other individuals paying fees
for immigration benefits. Until nowUSCIS
was using its adjudicative resources to handle
Form I924Awithout charging any fee for ap
proximately 800 currently approved Regional
Centers. This USCIS’annual subsidy pro
vided to the EB5 Regional Center is soon
going to end. Note that the rule also proposes
to change the title of Form I924Afrom“Sup
plement to Form I924” to “Annual Certifica
tion of Regional Centers.”
Further, the proposed fee for processing the
Form I526, Immigrant Petition byAlien En
trepreneur, will increase by 145 % to $3,675
(from the current fee of $1,500.00). The good
news is that the fee for processing Form I829,
Petition by Entrepreneur to Remove Condi
tions, is going to remain the same at level of
$3,750.00.
• THREELEVEL FEE STRUCTURE FOR
THEAPPLICATIONFORNATURALIZA
TION, N400.
DHS is proposing to establish a threelevel fee
for theApplication for Naturalization, Form
N400. First, DHS would increase the stan
dard fee for FormN400 from$595 to $640.
Second, DHS would continue to charge no
fee to an applicant whomeets the require
ments of sections 328 or 329 of the Immigra
tion andNationalityAct of 1952 (INA) with
respect tomilitary service and applicants with
approved fee waivers. Third, DHS would
charge a reduced fee of $320 for naturaliza
tion applicants with family income greater
than 150 percent and not more than 200 per
cent of the Federal Poverty Guidelines. DHS
is proposing this change to increase access to
United States citizenship.
•
USCISWILLNOT BEGINPROCESS
INGTHE REQUESTED IMMIGRATION
BENEFITUNTIL THE FILINGFEE
AND/ORBIOMETRICS FEE PAYMENT
GETS CLEARED.
Current regulations provide that when a
check or other financial instrument used to
pay a filing fee is subsequently returned as
not payable, the remitter is notified and re
quested to pay the filing fee and associated
service charge within 14 calendar days, with
out extension. Further, if a benefit request is
received by DHS without the correct biomet
ric service fee, DHS notifies the applicant of
the deficiency and takes no further action
until payment is received. In accordance with
these provisions, when a payment is returned
as nonpayable, USCIS places the immigra
tion benefit request on hold and suspends ad
judication. If a check is dishonored or
payment otherwise fails, USCIS assesses a
$30.00 charge and pursues the unpaid fee and
penalty using administrative debt collection
procedures. If the biometrics services fee was
required and is missing, USCIS generally pro
vides the filer 30 days to correct the payment.
If payment is made within the allotted time,
USCIS resumes processing the benefit re
quest. If the filer does not correct the pay
ment, USCIS rejects the filing. If the biometric
fee is not paid, USCIS considers the benefit re
quest as abandoned. DHS is proposing to
eliminate the abovementioned rules requir
ing that cases be heldwhile deficient pay
ments are corrected.
USCIS clears payment checks through the
Automated ClearingHouse (ACH) by con
verting checks to electronic payments. Be
cause USCIS converts checks intoACH
payments, there is currently no or very little
delay before USCIS knows whether the check
is valueless. DHS is proposing that USCIS
will not begin processing the benefit request
until the payment has cleared. DHS antici
pates that the proposed change would reduce
the USCIS administrative costs for holding
and tracking immigration benefit requests
with
rejected payments. This change would
streamline USCIS’process for handling immi
gration benefit requests when payments are
returned as not payable or do not include the
required biometric services fee.
•
HOLDINGTHE BIOMETRIC SERVICES
FEEAT ITS CURRENT LEVEL
.
Though themodel used by the DHS sug
gested a reduced Biometrics fee of $75.00, it is
proposing to hold the Biometrics service fee
at its current level of $85.00. DHS believes
that the importance of and uncertainty in the
Biometric services area justifies holding that
fee at $85.00.
•
REFUNDS
DHS is proposing aminor change in the pro
vision regarding USCIS fee refunds. In gen
eral, except for a premiumprocessing fee,
USCIS does not refund a fee regardless of the
decision on the immigration benefit request.
Going forward, USCIS will refund a fee if the
agency determines that an administrative
error occurred resulting in the incorrect col
lection of a fee. Examples of USCIS errors in
clude:
• Unnecessary filings: Cases inwhich
USCIS (or DOS in the case of an immigration
benefit request filed overseas) erroneously
requests that an individual file an unneces
sary formalongwith the associated fee; and
• Accidental payments: Cases inwhich an
individual pays a required feemore than
once or otherwise pays a fee in excess of the
amount due andUSCIS (or the DOS in the
case of an immigration benefit request filed
overseas) erroneously accepts the erroneous
fee.
Acopy of the proposed rule published in the
Federal Register, andmore detailed informa
tion regarding the proposed fee changes can
be gathered at:
4/201610297/uscitizenshipandimmigrationser
vicesfeeschedule
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