Miffed USCIS may rush to file for stay of federal judge’s order.
Indians and others seeking H-1B, L-1B work visas, foreign students, new citizens and others bracing for a wide ranging increase in US immigration related fees may relax for a while.
A federal judge in California has granted a motion for a preliminary injunction against a US Citizenship and Immigration Services (USCIS) fee rule that was scheduled to go into effect on Oct. 2, 2020.
US District Judge Jeffrey S. White Tuesday also rejected the Trump administration’s request for a brief administrative stay as it “would allow the Final Rule to go into effect, thereby altering the status quo.”
A miffed USCIS Wednesday issued a statement calling US District Court for the Northern District of California’s decision as “unfortunate,” but has yet to seek a stay of the injunction from the 9th Circuit.
“This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined,” USCIS Deputy Director of Policy Joseph Edlow stated.
“Unlike most government agencies, USCIS is fee funded,” he noted. “As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services.”
Justifying the proposed increase Edlow stated, “This is nothing new or abnormal. In fact, the fee rule is two years behind schedule, and is a smaller percentage increase than the previous.”
“In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery.”
“This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people,” Edlow stated.
The rule would have increased fees for H-1B petitions by 21% (from $460 to $555) and L visa petitions by 75% (from $460 to $805).
Businesses with more than 50 employees with at least 50% of their workforce in H-1B and L-1 status would have been required to pay an additional $4,000 fee on extensions.
The rule would have also increased the cost of petitions by more than 50% for O, TN, E, P, Q and R visas.
In his Sept. 29 decision, White agreed with the plaintiffs that the “Final Rule is arbitrary and capricious” as it failed “to consider important aspects of the problem, including the negative impact the rule will have on low-income immigrant populations.”
The Trump administration, he wrote, did not explain its shift in policy, alluding to USCIS charging higher fees but eliminating fee waivers.
“Plaintiffs also argue Defendants failed to adequately justify the shift in policy from the ability-to-pay principle to the beneficiary-pays principle utilized in the Final Rule,” White wrote.
“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.’”
The judge cited plaintiffs’ argument that USCIS fees for naturalization conflicted with the intent of Congress.
The Court also found that “deviations from a beneficiary-pays principle are inconsistent and conflict with the comments presented on the effects of these changes on low-income and vulnerable immigrant populations.”
By charging a fee for asylum to deter frivolous applications, USCIS was relying on factors that “Congress did not intend DHS to consider,” White wrote.
“As long as this preliminary injunction is in place, USCIS can’t raise fees,” Doug Rand, co-founder of Boundless Immigration, told Forbes in an interview. But the government would rush to obtain a stay of the injunction from the 9th Circuit.
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Future of US-India relations: Role of diaspora and 2020 elections (September 25, 2020)
US announces $150 million grant for training in H-1B jobs (September 25, 2020)