New USCIS Fees on April 1, 2024

On January 31st, USCIS published a new fee schedule, which will take effect on April 1, 2024, and significantly impact most employment-based petitions. Most notably, the new fee schedule will add a mandatory Asylum Program Fee to every Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, filed by for-profit employers.

What is the Asylum Program Fee?

It is an additional fee that USCIS is charging to U.S. employers in order to “fund part of the cost of administering the entire asylum process” which are estimated by the Agency to cost over $400 million per year. (89 FR 6208).

USCIS “determined that the Asylum Program Fee is an effective way to shift some costs to…petitioners who have more ability to pay”--in other words, U.S. employers who wish to sponsor foreign nationals for temporary (I-129) or permanent (I-140) employment in the United States. (89 FR 6208).

In other words, because Congress cannot figure out how to effectively fund the asylum process so that USCIS can properly administer and manage it, which has resulted in a backlog of more than 3 million cases, USCIS has in turn decided to tax U.S. employers in order to fund the asylum program.

What does this mean for U.S. employers?

Below is a chart of the new USCIS filing fees, by process, that must be paid beginning April 1, 2024.

If Employers have H, L, O, E, TN or I-140 petitions that can be filed before April 1, 2024, then they should do so in order to save hundreds, if not thousands of dollars.

Any cases that will be filed with USCIS on or after April 1, 2024, must include the new filing fees. Failure to file with the proper filing fees will result in the case being rejected.

Employers should take particular care in ensuring the proper filing fees with this year’s H-1B cap petitions, which must be filed after April 1, 2024. USCIS is often delayed in issuing receipt notices for cap cases, and it can take 6 weeks or longer to receive confirmation that a petition has been accepted or rejected. If the wrong filing fees are used and the H-1B cap petition is rejected, the Employer may not find out until after the filing period has expired, which means that the prospective employee will lose their opportunity for an H-1B in Fiscal Year 2025 and will need to be entered into the lottery for Fiscal Year 2026.

The Department of Justice Secures a $25 Million Settlement with Apple

On November 9, 2023, the US Department of Justice (DOJ), through its Civil Rights Division’s Immigrant and Employee Rights Section (IER) announced that it secured a $25 million landmark settlement agreement (Agreement) with Apple Inc. (Apple) to resolve employment discrimination allegations.

The Agreement between DOJ and Apple disclosed that from January 1, 2018 through December 31, 2019, IER found reasonable cause to believe that Apple engaged in a pattern and practice of discrimination based on citizenship status. More specifically, in the PERM recruitment process, which is required to sponsor foreign nationals for employment-based permanent residence, Apple’s recruitment practice showed a preference for Apple employees with temporary work visas instead of qualified and available U.S. workers (which include U.S. citizens, lawful permanent residences, asylees and refugees).

So, what (allegedly) did Apple do wrong? According to IER, Apple “departed from its standard recruiting process during required PERM-related recruitment” by: (1) not advertising positions on its external job website; (2) requiring applicants to mail paper applications instead of allowing them to submit electronic applications; and (3) failing to consider current employees for PERM positions if they submitted their applications electronically. By departing from its standard recruitment process, Apple used less effective, more onerous procedures that deterred U.S. workers from applying, which resulted in the receipt of zero to very few applications by mail. IER found that these procedures were designed to favor Apple employees with temporary work visas.

As part of this Agreement, Apple will pay $25 Million, which includes (1) $6.75 million in civil penalties and (2) $18.25 million in a back-pay fund for eligible discrimination victims. Moreover, for three years (from November 2, 2023 to November 1, 2026), Apple must: (3) draft a policy outlining the steps it will take in its PERM recruitment process and submit such draft to IER for approval; (4) submit an draft revisions of such PERM recruitment process to IER for approval; (5) prepare and submit to IER a semi-annual report of its recruitment procedures for PERM-related positions, detailing the PERM-position for which the application was filed, number of application received, the number of applicants interviewed, and the number of applicants deemed qualified for the position; and (6) provide IER approved training to all recruiters and personnel with any involvement in the PERM process.

While the PERM process is very problematic because: (1) it is not “real world” recruitment and (2) it is too often driven by foreign national employees who insist on including a laundry-list of skills, knowledge, experience and education that do not reflect the “minimum requirements” to perform the duties of the position, at the end of the day, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position.

According to the Department of Labor regulations, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position. Where an employer uses a recruitment process that discourages U.S. workers from applying (such as requiring applicants to mail an application instead of accepting an electronic submission), whether such behavior on part of the employer is willful and purposeful, or inadvertent error and unintentional, it is more likely than not that IER will find a lack of good faith on part of the employer.

The Agreement is a very good reminder for employers to revisit their immigration policies, in particular, their PERM recruitment policies, to determine if such policies show good faith or a lack thereof. If the recruitment policies clearly favor nonimmigrant employees over U.S. workers, the employer may find themselves garnering free publicity in the form of an IER or DOJ settlement announcement as well as steep fines and supervised recruitment.