U.S. Citizenship and Immigration Services is expected to reopen and extend the public comment period for a proposed regulation that would significantly increase immigration-related government filing fees.

Key points:

  • An official notice will be published tomorrow, and the comment period will now close on Feb. 10. USCIS will consider all comments as it formulates a final regulation, including those that were submitted since the previous closing date of Dec. 30.
  • The extension of the public comment period combined with the 60-day delayed effective date of any finalized rule means that the final rule is unlikely to take effect for H-1B cap cases that are filed in April this cap season.
  • However, under the new H-1B lottery process that is starting this year, the H-1B cap filing window will last 90 days. It is still possible that the rule could take effect during that 90-day period.

Background: The proposed rule, published Nov. 14, 2019, would increase USCIS fees, charge different fees for different categories of nonimmigrant workers, and impose significant new fees on companies with a high proportion of H-1B or L-1 employees. In December, USCIS made changes to the proposal and extended the comment period to Dec. 30. The agency has already received more than 29,000 comments on the proposal, and the final rule is likely to be challenged in court as it makes significant changes across multiple immigration benefit categories.

BAL Analysis: Petitioners may anticipate that the higher fees are not likely to apply to H-1B cap filings that are submitted in April, early in the 90-day filing window, and can plan accordingly. However, it cannot be ruled out that new fees could be in place for H-1B cap petitions filed later in the 90-day filing period. Employers are encouraged to submit comments during the extended comment period if they have not already done so. BAL is continuing to monitor the progress of this rule, including potential litigation that could further delay implementation, and will provide updates on developments.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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