A Detailed Analysis of the Recent Filing Fee Increase – How will it affect the applicants?

The new fee rule and additional asylum program fee

On April 1, 2024, the U.S. Citizenship and Immigration Services (USCIS) started implementing a new fee rule that was published on January 31, 2024. This new rule has led to significant increases in almost all non-immigrant and immigration visa application fees. There is currently a strong discussion about the increased fees for the asylum program, which has reignited the topic of illegal immigration.

The Asylum Program Fee is a new fee that is required to be paid by employers who file Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. The visa types that are affected by this fee include H1B, CW1, L1, EB1, EB2, and EB3. The full Asylum Program Fee is $600, but small employers with 25 or fewer full-time equivalent employees will get a discounted fee of $300. Non-profit petitioners are also eligible for special relief and are not required to pay the Asylum Program Fee. Moreover, an individual self-petitioner of EB1A and NIW would pay the reduced Asylum Program Fee of $300.

It is important to note that the filing fee of the I-589 Application for Asylum and for Withholding of Removal is $0. USCIS has explained the reason for charging the additional fee is that when they have a fully funded corps of asylum officers, their non-asylum officers can concentrate more exclusively on adjudicating cases from employers and other filers, which will ultimately bring down processing times for everyone. It is likely that the expression used by USCIS will encourage legal immigrants to pay for the illegal immigrants in order to reduce the backlog of all the cases.

What is Asylum？

The United States offers protection to certain foreign nationals who are physically present in the country or arrive at a port of entry (POE) and have faced persecution or fear that they will be persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. Those seeking asylum must apply within one year from their most recent arrival. There are two main ways to obtain asylum: through the affirmative asylum process by filing a Form I-589 with USCIS, or through defensive asylum applications with an immigration judge in the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR). The USCIS Asylum Division reviews and approves asylum applications directly through the affirmative asylum process. If the applications are not approved, and the applicants do not have legal immigration status or parole at the time of the final decision, USCIS places them in removal proceedings before an EOIR immigration judge, which is then known as a defensive asylum application.

Immigrants wait in line to be processed by the U.S. Border Patrol after crossing through a gap in the U.S.-Mexico border barrier in Yuma, Ariz., on May 21, 2022. (Mario Tama / Getty Images file)

The United States has been running the U.S. Refugee Admission Program (USRAP) since 1980. This program defines the current legal framework for asylum, including family reunification rights and a path to permanent residency for asylees after one year. In FY2021, President Donald Trump reduced the annual refugee ceiling to a record low of 15,000, citing it as a security concern. However, President Joe Biden has taken steps to expand the refugee program as global humanitarian crises worsen. This change has led to a record number of illegal border crossings in 2022 and 2023.

The status of the asylum application cases

According to the U.S. Department of Homeland Security’s (DHS) Annual Flow Report of Refugees and Asylees (RFA), there were 238,841 affirmative asylum case filings and 253,524 defensive asylum applications filed with EOIR in 2022. This is more than three times the number in 2021. However, the total number of persons granted asylum in the United States was only 16,628 in 2021 and 36,615 in 2022.

Furthermore, the UN refugee agency’s report of “Mid-year Trends 2023” reveals that asylum seekers around the world submitted 1.6 million new claims in the first half of 2023, with the United States of America being the world’s largest recipient of new individual applications (540,600). It is surprising to find that the number of asylum applications in the first half of 2023 has already exceeded that in 2022.

The number of asylum applications has consistently outpaced adjudications, driving a growing processing backlog, which makes it difficult to anticipate the processing time. The pending cases of affirmative asylum were nearly 1 million in September of 2022, and the pending cases of defensive asylum currently reach more than 1.1 million in December of 2023. In FY 2023, the denied applications were roughly 50 percent of all asylum decisions made that year.

The legal immigration pathway

Many asylum seekers flee their own country and come to the United States due to difficult living conditions and lack of employment opportunities. However, there is a legal pathway for ordinary people, such as unskilled workers, to immigrate to the US. This is known as the third preference employment-based immigration (EW3 of EB3) and requires low eligibility criteria. An individual can apply for unskilled jobs that require lower education and work experience as provided by the American employer. If they pass the recruitment process and receive an offer from the employer, the employer will submit the labor certification application and I-140 immigration petition for the person. After obtaining all the necessary approvals and going through the consular interview, the person can enter the US to work. As a legal immigrant worker, the person will be protected under US legislation and will receive reasonable payments and benefits.

As the U.S. presidential election in November approaches, the future of asylum seekers is uncertain. Nonetheless, legal immigration remains the best option, albeit with the added cost of asylum program fees.

Reference：

https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum

https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-frequently-asked-questions/questions-and-answers-affirmative-asylum-eligibility-and-applications

https://www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscis-fee-rule

https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf

https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_refugees_and_asylees_fy2022_v2_0.pdf

https://worldmigrationreport.iom.int/wmr-2022-interactive/

https://www.unhcr.org/sites/default/files/2023-10/Mid-year-trends-2023.pdf

https://trac.syr.edu/phptools/immigration/asylumbl/

https://www.cfr.org/backgrounder/seeking-protection-how-us-asylum-process-works

https://www.cfr.org/backgrounder/how-does-us-refugee-system-work-trump-biden-afghanistan

https://www.cfr.org/podcasts/crisis-us-southern-border-dara-lind

https://www.cfr.org/in-brief/can-bidens-new-asylum-policy-help-solve-migrant-crisis?gad_source=1&gclid=CjwKCAjwoPOwBhAeEiwAJuXRh_lXdkX9ENOiLzWkYjBuDRCCq1EVmw5h-W8TeSjaFpJ39H89PkwXBxoCc2sQAvD_BwE