Labor Immigration Law

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

Most of our clients and readers remember the summer of 2007 when USCIS raised the filing fees for certain services by a substantial amount (in all fairness, USCIS decreased the fees for certain services) (see the archived May 29, 2007 USCIS press release).  One of the motivating forces behind this fee increase was the collection of an additional funds which would lead to a 20 percent reduction in average application processing times for I-90, I-140, I-485 and N-400 petitions.

The jury is still out on whether there is a notable and sustainable decrease in processing times for petitions filed with USCIS.  However, in an article from today Business Week reports that the government has collected much less (hundreds of millions of dollars) than originally anticipated when the new USCIS fees went into effect.

The 2007 USCIS fee increase had a collection target of an additional $1 billion.  However, the agency is now expecting that it would collect about $282 million short of the $2.33 billion target for the fiscal year ending on September 30, 2009.

According to Director Majorkas, “[g]iven the current economic climate, we anticipate that the current filing trend will continue. We will therefore continue to make the necessary adjustments while remaining dedicated to delivering on our public service mission.”  As a result, the agency costs are expected to far exceed its revenue and will have to seek ways to bridge its budget shortfall.  There are requests for money from Congress and it is possible that there may be some fee adjustments, although no official information has been made available.

The USCIS Ombudsman has released a recommendation report which urges overhaul of the USCIS fee payment system.  USCIS is considered a “pay-for-service” government agency where petitioners pay for the provision of a particular service.  However, the current system which accepts checks or money orders for most, and credit cards for a few e-filing-enabled forms, has many flaws which in some cases result denial of benefits to petitioners who are otherwise eligible.

Numbers of Fee Rejections

The numbers of fee-based rejections of immigration petitions are  staggering.  Alhough most of the service centers do not keep track of rejections solely based on fees, the potential numbers are alarming.  In December 2008, there were up to 4,000+ possible fee rejections in the California Service Center, 5,000 in the Nebraska, 7,000 in Texas and slightly over 6,000 in Vermont.  The Chicago Lockbox Operations Division,  however, keeps track of the fee rejections and it estimates that 3.2 percent of the 10,000-12,000 filigs per day are rejected for fee-related reasons.  This adds up to 300-400 petitions rejected per day and this is only for the Chicago Lockbox.

Common Mistakes and Problems

There are  few common problems and mistakes which contribute to the majoriry of rejected petitions:

• No amount written – please make sure you write the exact amount of the fee, USCIS will not write the amount for you;
• Incorrect amount – verify that the fee is correct and that there are no additional fees, such as biometric, etc.
• Written and numerical amounts do not match and missing signature – this is most likely an oversight by the check drafter but, unfortunately, it is common;
• Stale-dated checks – in some cases USCIS would delay the receipting of a petition and will not deposit the check for a number of months and the check will become “stale” – to avoid this, make sure the check is dated as of the date the check is sent to USCIS or shortly in advance;
• Incorrect payee – most of the USCIS filing fees should be issued to Department of Homeland Security but this can vary and the instructions for each form should be consulted before writing the check;
• Check or money order not submitted through a U.S. bank or in U.S. dollars – the checks or money orders must be in U.S. dollars and drafted on U.S. bank.

Recommendations

The report has several recommendations for USCIS with which we, at the Capitol Immigration Law Group, agree fully:

1. Institute a batch filing system that would enable high volume filers to pay USCIS fees online;
2. Institute an online shopping cart mechanism that would simplify the process of identifying appropriate USCIS forms, calculating related fees, and submitting payments;
3. Expand the payment options within the e-Filing system to include all USCIS fees; and
4. Implement additional visual and written aids within current instructions to ensure that payments are submitted correctly.

Additionally, language barriers and complicated instructions sometimes contribute to one or more of the above mistakes.  The Ombundsman urges USCIS to revise its fee collection procedures to address not only the mechanics of the fee collection but also the complexity of the immigration filings system and the applicable fees.

The Government Accountability Office (GAO) has produced another set of two excellent and very revealing reports – one reviewing the Immigration and Naturalization Fees and one suggesting improvements for the setting of USCIS fees.

The two reports are very revealing in describing USCIS’s budgetary items, its heavy reliance on filing fees to finance operations and some inefficiencies created by the fact that USCIS is self-funding to a large extent.  The reports also criticize the July 2007 fee increase which resulted in an enormous spike in applications and, according to the GAO, surprised USCIS.  One of my favorite examples was:

USCIS’s lack of timely, comprehensive fee reviews prior to 2007 led to the need for an average fee increase of 86 percent. This contributed to a surge in application volume as applicants attempted to submit their applications before the fee increase took effect, resulting in costly operational challenges. For example, the number of applications submitted increased an unprecedented 100 percent in July 2007 over the prior month, exceeding storage capacity. At the Texas Service Center unprocessed applications were stored outside in six rented 10-by-40-foot containers, double-locked, and monitored by a full-time security guard.

Yes, according to the GAO, at least some of the applications filed at the Texas Service Center were stored outside, in a 10-by-40 container (like this one), exposed to weather and other elements.

The USCIS has released a chart describing its progress towards meeting the fiscal year (FY) 2008 and FY 2009 processing time goals.  Attached is a PDF of the chart with a couple of annotations highlighting some important lines that are generally of high interest to our clients and readers.

What may be of the greatest interest are the current average processing time compared to the FY 2008 and FY 2009 goals for the following categories :

• I-140, Immigrant Petition for Worker – current goal:  6 months, FY 2009 goal: 4 months.  Actual average time: 11.8 months.
• I-485, Adjustment of Status- current goal: 6 months, FY 2009 goal: 4 months.  Actual average time: 13.6 months.
• I-131, Reentry Permit – current goal: 3 months, FY 2009 goal: 2.5 months.  Actual average time: 3.9 months.

The USCIS has acknowledged that the goals were set before the new fee rule came into effect during the summer of 2007 and which resulted significant increase in the filings.  However, USCIS has declined to realistically adjust (decrease) the goals for FY 2008 and 2009.  As a result, although we expect that the processing times will improve, the gap between the goals for FY 2009 and the actual processing times will remain significant.

USCIS has released the numbers of citizenship applications filed for the first six months of 2008.  For the period January-June 2008, on average, there were approximately 46,000 citizenship applications each month.  As a comparison, the monthly average for the same period in 2007 was approximately 115,000 citizenship applications.   This marks a decline in the average number of monthly applications of 59%.

The decline is attributed mainly to the higher filing fees.  The citizenship application fee rose from $400 to $675 on July 30, 2007, and prompted many who are eligibleand have been postponing their filing to do so before July 30, 2007.  In fact, July 2007 recorded a record-high 460,000 citizenship applications.  (See chart)

There is some concern that some foreign nationals who are eligible for citizenship are priced out due to the increased filing fee.  USCIS defended the increase on the ground that it is necessary to cover processing and security check costs.  USCIS has further stated that it allows citizenship applicants who are not able to afford the filing fee to apply for a waiver.  However, the reality is that there are very few such requests actually made, of which, some are denied.  In July of 2008, there were only 1,578 requests for fee waiver, of which only 1,052 were approved.

The U.S. Department of State has announced that effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131 and the fee for a U.S. immigrant visa will increase from $335 to $355.

This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico.

It is important for our readers to note that applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview on or before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference — $31 — before they will be interviewed.