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USCIS Fee Increase Proposed Rule Could Represent the Latest Step in Reshaping Immigration to United States

Commentaries
December 2019

USCIS Fee Increase Proposed Rule Could Represent the Latest Step in Reshaping Immigration to United States

Seattle Office of Immigrant and Refugee Affairs/Alabastro Photography

While much attention has been given to the move by U.S. Citizenship and Immigration Services (USCIS) to raise its application fees—including an 83 percent hike to apply for U.S. citizenship—the policy changes embedded in the agency’s proposed rule are ultimately more notable and have been less scrutinized.

By proposing an application fee for certain asylum applicants, the elimination of most fee waivers for low-income applicants, and a rare transfer of more than $100 million out of the agency’s adjudication services to fund stepped-up enforcement by another agency (U.S. Immigration and Customs Enforcement, or ICE), the Trump administration would alter key underpinnings of longstanding immigration fee policy.

Taken together, these changes would likely reduce the number and shift the profile of those applying for and being granted legal statuses that permit U.S. residence and citizenship. These actions would be the latest in a continuum of administration policies that could significantly reshape the face of legal immigration to the United States by imposing new barriers for those of more modest means, joining earlier policies such as broadening who is considered a public charge and thus inadmissible, and requiring potential immigrants to have health insurance or financial means to cover health costs.

Not Unprecedented in Practice, But in Scope

USCIS is the rare federal agency whose operations are funded by fees. In 1988, Congress established the Immigration Examinations Fee Account (IEFA) so that immigration adjudications functions could be directly funded through the fees they generate. By law, USCIS is required to review its fees every two years and adjust them as necessary to meet its costs for adjudicating applications. Fee calculations may include direct and indirect costs, for example personnel, facilities, management, and enforcement. They may also cover costs for fee-exempt applications, such as asylum and refugee status and U.S. military service naturalizations.

The increases USCIS proposed in mid-November (there are a few categories where application fees would decrease) are significant but not unprecedented. Since the agency was established in 2003 as part of the creation of the Department of Homeland Security (DHS), which absorbed the functions of the earlier U.S. Immigration and Naturalization Service (INS), fees have been adjusted five times (see Table 1). Under the proposed rule, a public comment period is open until December 30.

Table 1. USCIS Fees by Year of Change and Select Proposed Fee Increases

Notes: The lower range of costs in the “proposed 2020 changes” column represent fees without U.S. Citizenship and Immigration Services (USCIS) transfer of funds to U.S. Immigration and Customs Enforcement (ICE), while the higher range represents costs with USCIS transferring the originally requested $208 million. Developments since the issuance of the proposed rule could affect where in this range the final fees fall. In a supplemental proposal issued December 9, 2019, USCIS revised downward its proposed transfer to ICE to $112 million, meaning application fees could fall somewhere within the middle of the range. If USCIS withdraws its transfer request due to the increased fiscal year 2020 congressional appropriations approved by the House for ICE, the fees would be even lower.
Sources: Department of Homeland Security (DHS), “Adjustment of the Immigration Benefit Application Fee Schedule,” Federal Register 69, no. 73 (April 15, 2004): 20532, 20534, www.govinfo.gov/content/pkg/FR-2004-04-15/pdf/04-8699.pdf; DHS, “Adjustment of the Immigration Benefit Application Fee Schedule,” Federal Register 70, no. 185 (September 26, 2005): 56184, www.govinfo.gov/content/pkg/FR-2005-09-26/pdf/05-19226.pdf; DHS, “Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule,” Federal Register 72, no. 103 (May 30, 2007): 29853-4, www.govinfo.gov/content/pkg/FR-2007-05-30/pdf/E7-10371.pdf; DHS, “U.S. Citizenship and Immigration Services Fee Schedule,” Federal Register 75, no. 185 (September 24, 2010): 58964, 58987, www.govinfo.gov/content/pkg/FR-2010-09-24/pdf/2010-23725.pdf; DHS, “U.S. Citizenship and Immigration Services Fee Schedule,” Federal Register 81, no. 205 (October 24, 2016): 73294-5, www.govinfo.gov/content/pkg/FR-2016-10-24/pdf/2016-25328.pdf; DHS, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” Federal Register 84, no. 220 (November 14, 2019): 62326-7, www.govinfo.gov/content/pkg/FR-2019-11-14/pdf/2019-24366.pdf.

USCIS self-funding has given immigration adjudications a protected revenue base over the years. At the same time, this generates tensions and tradeoffs over who should pay, how much, and for which services. The administration’s proposed revisions to the fee structure bring those tensions into sharp relief.

Asylum Fee

Historically, the request for protection by asylum seekers around the world is not subject to fees. Indeed, by imposing a fee for asylum applications, the United States would join just three other countries: Australia, Fiji, and Iran.

Instead, the U.S. government has paid for its adjudications of asylum and refugee claims by imposing a surcharge on other types of applications. Administrations of both political parties maintained the practice despite objections raised during past public comment periods over proposed fee changes. The Obama administration attempted to lessen the impact of asylum costs on other applications by twice asking for appropriations to fully cover them. Congress refused, leaving a shortfall in the USCIS budget that underscored the pitfalls of requesting appropriations to fund adjudications services.

Pointing to the “continuous, sizeable increase in affirmative asylum filings,” the Trump administration is seeking to charge $50 for affirmative asylum applications (those filed with USCIS, not the immigration courts). Indeed, affirmative asylum filings did increase rapidly through 2017, before declining somewhat, and increased funding could help process the 328,000-case backlog. The policy question, however, is whether funding needs should override the longstanding international and U.S. principle that asylum determinations be free of barriers for would-be applicants, including financial ones.

Affirmative asylum seekers made up 40 percent of all asylum seekers in fiscal year (FY) 2018.

Table 2. Affirmative and Defensive Asylum Applications Filed, FY 2015-19

Notes: Quarters 1 and 2 of fiscal year (FY) 2019 cover October 2018 through March 2019. Data are not yet available for FY 2019 defensive asylum filings.
Sources: DHS, Annual Flow Report: Refugees and Asylees: 2018 (Washington, DC: DHS, 2019), 6-7, www.dhs.gov/sites/default/files/images/OIS/2018/refugees_asylees_2018.pdf; DHS, Annual Flow Report: Refugees and Asylees: 2017 (Washington, DC: DHS, 2019), 7-8, www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf; Authors’ compilation of monthly affirmative asylum data released by USCIS, www.uscis.gov/outreach/notes-previous-engagements?topic_id=20153&field_release_date_value%5Bvalue%5D%5Bmonth%5D=&field_release_date_value_1%5Bvalue%5D%5Byear%5D=&multiple=&items_per_page=10.

While the proposed rule acknowledges that “some applicants may not be able to afford this fee and would no longer be able to apply for asylum,” it does not seek to quantify the potential impact. How many would-be asylum seekers would fail to clear the cost barrier is difficult to know. Asylum applicants are not permitted to work for the first six months their applications are pending, and another newly proposed rule would extend that waiting period to a year. While $50 may sound like a relatively modest amount, it may be a significant hurdle for those lacking a reliable income for extended periods.

Fee Waivers

Eliminating most fee waivers would almost certainly reduce the number of lower-income immigrants applying for services. Fee waiver eligibility has been narrowed in the past, but to a lesser degree. In 2007, the Bush administration eliminated fee waivers for applications that require demonstrating the ability to support oneself or having a sponsor, such as a family member.

The Trump administration’s proposed rule goes much further. Waivers would be available only for statutorily specified applications: victims of crimes or trafficking (U and T visas), battered spouses and children of certain immigrants, and Temporary Protected Status (TPS). Waivers would be eliminated for heavily subscribed applications, including naturalization, legal permanent residence (green cards), and employment authorization—all core elements of the legal immigration system.

This change would affect a broad swath of applicants, particularly those seeking citizenship. In FY 2016, the latest year for which data are available, about 31 percent of immigrants granted citizenship (227,000 individuals) received a fee waiver (see Table 3). The termination of fee waivers, with the proposed near-doubling of the naturalization fee from $640 to $1,170, would stack the deck against lower-income immigrants.

Table 3. Shares of Fee Waivers Granted for Select Immigration Benefits (%), FY 2015-16

Notes: Fee waivers for applications for legal permanent residence are available only for those exempt from the public-charge grounds of inadmissibility, such as refugees, asylees, and special immigrant juveniles, meaning that the universe of applicants eligible for fee waivers is smaller than the total applicant pool. Thus the shares of green-card applicants eligible for fee waivers who received them are larger than the shares here. For applicants for work authorization, an additional unknown share did not have to pay the fee, including those who filed concurrently with an application for permanent residence or while such an application was pending, as well as for refugees, asylees, and asylum seekers applying for initial work authorization. Because the proposed rule would eliminate fee exemptions for concurrent filing and for asylum seekers (though not for refugees and asylees), this unknown share would also have to pay full cost.
Sources: Authors’ calculations based on USCIS, USCIS Fee Waiver Policies and Data (Washington, DC: USCIS, 2017), 46, www.dhs.gov/sites/default/files/publications/USCIS%20-%20Fee%20Waiver%20Policies%20and%20Data.pdf; DHS, “U.S. Citizenship and Immigration Services Fee Schedule” (2010); USCIS, “All USCIS Application and Petition Form Types (Fiscal Year 2015, 4th Quarter, July 1-Sept. 30, 2015),” December 4, 2015, www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/all_forms_performancedata_fy2015_qtr4.csv; USCIS, “All USCIS Application and Petition Form Types (Fiscal Year 2016, 4th Quarter, July 1-Sept. 30, 2016),” December 23, 2016, www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/all_forms_performancedata_fy2016_qtr4.csv.

The proposed rule would also set stricter eligibility standards for statutorily protected fee waiver requests, meaning that fewer waivers would be likely to be granted than previously. It would allow waivers only for those with household incomes at or below 125 percent of the federal poverty level, compared to the current 150 percent ceiling. Another change, temporarily blocked in federal court, would remove receipt of public benefits as a valid ground for a fee waiver.

Enforcement Funding

The proposed rule would transfer significant resources out of USCIS to a sister DHS immigration agency: ICE. While the original proposed rule unveiled on November 14 contemplated the transfer of $208 million to ICE, a supplemental proposal issued December 9 narrowed the proposed total to $112 million. And Congress is attempting to eliminate the need for any transfer, with the House approving $208 million in additional appropriations for ICE in FY 2020—a win for the administration’s push for this policy change, particularly since Congress denied a similar request in its FY 2019 appropriations.

There have been prior instances when benefits adjudications fees have facilitated enforcement functions. In 1997, for example, Congress freed up $56 million for “border control, deportation and detention initiatives” by moving money around within Justice Department accounts.

The $112 million would be allocated for benefits fraud investigation by ICE (though USCIS has its own fraud division). It is unclear whether benefit fraud has increased beyond the skills, authorities, and resources USCIS already devotes to it, as well as the heightened vetting and security requirements of the agency’s application and adjudications procedures.

Fee Increases as Policy Tools

Advancing broader policy goals through the USCIS fee structure is not new. The Obama administration, for example, held naturalization fees at less than cost in 2010 and 2016 to promote citizenship and immigrant integration.

However, such efforts have been infrequent and targeted. The current proposal breaks sharply with past practice by using fee increases to limit access to the asylum system, reduce the scope of legal immigration benefits that lower-income groups can access, and elevate enforcement above other dimensions of the immigration system.

The authors would like to thank Carlos Echeverria-Estrada and Julia Gelatt for their research assistance.