U.S. Citizenship and Immigration Services (USCIS) suffered a budget crisis partially of its own doing and partially due to the coronavirus pandemic in 2020. Although the agency did not need to go through with planned furloughs, Congress has nevertheless acted to provide the agency with a new way to raise money through the expansion of “premium processing.” This system allows businesses to pay high fees to skip to the front of the line and have their petitions adjudicated quickly.
Congress hopes that by expanding premium processing to additional categories businesses with deep pockets will step in and help fund USCIS without requiring government funding.
Currently, premium processing is available to employers filing a petition for certain temporary (nonimmigrant) worker visa categories and a petition for certain employment-based immigrant visa categories. As part of a continuing resolution to keep the government funded through the end of the year, Congress made premium processing more broadly available. Congress is allowing USCIS to raise the current fee and, for the new categories, is allowing USCIS to establish a longer processing time than for the current categories.
Prices for new premium processing categories will be set by the agency as it implements the new law. When implemented, premium processing fees on current categories will increase from $1,440 to $2,500, except for H-2B agricultural workers and R-1 religious workers where premium processing fees will be set at $1,500. Congress also placed a “ceiling” on the fee USCIS could charge for some of the new categories, such as $1,750 for an application for employment authorization and a maximum processing time of 30 days. But Congress has allowed USCIS to raise premium processing fees every two years—without rulemaking—based on the Consumer Price Index.
Premium processing will now be available for all employment-based nonimmigrant and immigrant visa petitions under the new law—as well as associated applications for dependents. For the first time, premium processing will become available for applications to change or extend nonimmigrant status for dependents (such as H-4 spouses and children of H-1B workers) and applications for employment authorization documents. Congress also gave USCIS the ability to extend premium processing to any other immigration benefit if the agency believes it to be appropriate.
Money raised through premium processing would be limited to specific purposes by law, including funding premium processing services, improving the process of adjudicating benefits, and providing more information and better services to applicants. These restrictions would prevent the agency from transferring the money to other DHS components such as Immigration and Customs Enforcement, something that USCIS recently proposed. Congress also has required USCIS to provide semi-annual briefings.
The expansion of premium processing will likely bring some needed relief to USCIS’s budget crisis. However, the agency is still in budgetary trouble because of the Trump administration’s relentless attacks on the legal immigration system, which have made many people rethink whether to apply for a benefit in a first place. Since USCIS is funded by application fees, that means less money for the agency.
In September, the agency even proposed a new rule that would potentially require USCIS to pay hundreds of millions of dollars a year to carry out DNA tests on applicants for immigration benefits. That change, among others, threatens to put the agency even further into a financial hole.
Rather than recouping USCIS’s losses on the backs of Americans employers and foreign nationals themselves, Congress should consider legislation reining in the Trump administration’s focus on “extreme vetting” and other restrictionists policies. An agency funded by fees won’t be able to sustain itself if they stop anyone from wanting to come to the U.S. in the first place.
FILED UNDER: H-1B, H-4, USCIS
