USCIS Fee Rule Update: Avoiding Filing Rejections

The Final Rule published by United States Citizenship and Immigration Services (USCIS) adjusting certain immigration and naturalization benefit request fees went into effect on April 1, 2024. This Final Rule included the first new Fee Schedule since 2016, and there were significant changes to the pre-existing Fee Schedule. On April 29, 2024, USCIS published a new edition of the Fee Schedule, which can be accessed here.

Naturally, there has been no shortage of questions (or confusion) in response to the final rule. Perceived and actual errors in the filing fees submitted result in a rejection of the filing by USCIS, which can have severe consequences for applicants facing critical filing deadlines to extend nonimmigrant status, for example.

The USCIS Fee Schedule and Fee Calculator should be reviewed before every filing to try to ensure the correct payment is submitted. Of course, even the Fee Calculator can have glitches. USCIS also consolidated various questions and answers on its Frequently Asked Questions page, which was updated as recently as May 24, 2024, and should be reviewed as well.

The following are some of the primary considerations for avoiding a rejected filing by USCIS:

1. Payment of Fees

• If separate fees are required when filing multiple forms together, you may not pay with one (1) check. USCIS is transitioning to electronically processing immigration benefit requests, which involves the use of multiple systems to process multi-form submissions. USCIS may reject your entire package if you submit a single, combined payment for multiple forms.
• Suppose you file forms online (such as an H-1B petition (Form I-129)) on or after April 1, 2024. In that case, you may submit one (1) credit card form that includes the total filing fee amount (Form I-129 fee, anti-fraud fee, American Competitiveness and Workforce Improvement Act fee, Asylum Program Fee, and premium processing filing fee if applicable).

2. Asylum Program Fee

• The Asylum Program Fee ($600) is a new fee paid by employers who file either 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).
• This fee helps fund the asylum program. USCIS explains that since all of the work at USCIS is connected, having a more fully funded corps of asylum officers allows USCIS' non-asylum officers to concentrate more exclusively on adjudicating cases from employers and other filers, decreasing processing times for everyone.
• Payment of the Asylum Program Fee does not require a separate form or paperwork. If you pay by check or money order, you should submit the Asylum Program Fee separately. If you pay online by credit card, you may use one credit card form for all fees, including the Asylum Program Fee.
• The petitioning employer must pay the appropriate Asylum Program Fee for each Form I-129 filed (even when submitting multiple petitions due to the limit of 25 named beneficiaries on each petition) unless the employer qualifies for the nonprofit exemption discussed further below.
• Individual self-petitioners pay the reduced Asylum Program Fee of $300 when filing Form I-140 as an EB-1A person of extraordinary ability or as an EB-2 national interest waiver applicant. In this case, on Form I-140, self-petitioners select "yes" in response to Question 6 in Part 1 of the form to indicate they employ fewer than a total of 25 full-time equivalent employees.
• When an individual beneficiary of a Form I-129 or Form 1-140 petition is a part or sole owner of the petitioning entity, then the Asylum Program Fee is based on the petitioning entity's number of employees and nonprofit status, as is the case for any petitioning entity or individual. For example, on Form I-140, select "Yes" in response to Part 1, Question 6, if you currently employ a total of 25 or fewer full-time employees. In addition, select "Yes" in response to Part 1, Question 5, if you are a nonprofit organization. As to Form I-129, select "Yes" in response to Part 5, Question 15, if you currently employ a total of 25 or fewer full-time employees. In addition, select "Yes" in response to Part 1, Question 6, if you are a nonprofit organization.
• The fee rule includes special discounts for nonprofits and small employers. Nonprofits are not required to pay the Asylum Program Fee, and small employers (defined as those with 25 or fewer full-time equivalent employees) are required to pay $300 rather than the total $600 for the Asylum Program Fee. Note that nonprofit petitioners (including institutions of higher education) qualify for a reduced fee for Forms I-129 and I-129CW and do not need to pay the Asylum Program fee for those forms or Form I-140.
• In addition, for the Form I-129 and Form I-129CW fees, small employers will pay a discounted fee of up to 50%. See the full Fee Schedule, Form G-1055, for all of the discounted fees.

3. Form I-129, Petition for a Nonimmigrant Worker

• Part 1, Question 6 asks: "Are you a nonprofit organized as tax exempt or a governmental research organization?" If you answer "Yes," then you must submit the proper payment for a nonprofit, and not for a small employer. To determine whether you qualify as a nonprofit, refer to page 7 of the Form I-129 Instructions.
• Part 5, Question 15 asks: "Do you currently employ a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or subsidiaries of this company/organization?" If you answer "Yes," then you must submit the proper payment for a small employer (unless you checked "Yes" in Part 1, Question 6 for nonprofits, as described above).
• Part 5, Question 14 asks for your "Current Number of Employees in the United States." If you check "Yes" to Part 5, Question 15, and you answer Question 14 with a number greater than 25, then your supporting documentation should demonstrate how you calculated the number of full-time equivalent employees as 25 or fewer. If USCIS cannot determine the number of full-time equivalent employees, the petition may be rejected.

4. Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker

• Part 1, Question 8 asks: "Are you a nonprofit organized as tax exempt or a governmental research organization?" If you answer "Yes," then you must submit the proper payment for a nonprofit, and not for a small employer. To determine whether you qualify as a nonprofit, refer to page 3 of the Form I-129CW Instructions.
• Part 5, Question 14 asks: "Do you currently employ a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or subsidiaries of this company/organization?" If you answer "Yes," then you must submit the proper payment for a small employer (unless you checked "Yes" in Part 1, Question 8 for nonprofits, as described above).
• Part 5, Question 13 asks for your "Current Number of Employees in the United States." If you check "Yes" to Part 5, Question 14, and you answer Question 13 with a number greater than 25, then your supporting documentation should demonstrate how you calculated the number of full-time equivalent employees as 25 or fewer. If USCIS cannot determine the number of full-time equivalent employees, the petition may be rejected.

5. Form I-140, Immigrant Petition for Alien Workers

• Part 1, Question 5 asks: "Are you a nonprofit organized as tax exempt or a governmental research organization?" If you answer "Yes," then you must submit the proper payment for a nonprofit, and not for a small employer. To determine whether you qualify as a nonprofit, refer to page 3 of the Form I-140 Instructions.
• Part 1, Question 6 asks: "Do you currently employ a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or subsidiaries of this company/organization?" If you answer "Yes," then you must submit the proper payment for a small employer (unless you checked "Yes" in Part 1, Question 5 for nonprofits, as described above).
• Part 5, Question 4 asks for your "Current Number of U.S. Employees." If you check "Yes" to Part 1, Question 6, and you answer Part 5, Question 4 with a number greater than 25, then your supporting documentation should demonstrate how you calculated the number of full-time equivalent employees as 25 or fewer. If USCIS cannot determine the number of full-time equivalent employees, the petition may be rejected.

6. Full-Time Equivalent Employees

• To determine whether a petitioner qualifies for the small employer discount to the Form I-129 fee and Asylum Program Fee, the number of full-time equivalent employees equals the number of full-time employees and the number of part-time employees aggregated to full-time equivalents at the time of filing. Note that the Internal Revenue Service (IRS) defines an employee as an individual who receives "wages," with applicable taxes deducted, along with Social Security and unemployment deductions, and who receives a W-2 reporting their income.
• Noncitizen workers count toward the number of full-time equivalent employees. You should count all current workers you employ at the time of filing, regardless of immigration status.
• Full-time equivalent employees include seasonal nonimmigrant workers if they are paid as employees (not contractors). You should count all seasonal workers you employ at the time of filing.
• The beneficiary of a petition does not count as an employee unless they are currently working for the petitioner as an employee at the time of filing.
• Petitioners should include all the petitioner's full-time equivalent employees in the United States, including its affiliates and subsidiaries. The petitioner should not include, however, additional employees from the petitioning employer's parent company or the parents of any affiliates. In other words, in an organizational chart that begins with the petitioner, count down and horizontally, including the petitioning employer's affiliates and subsidiaries, but do not count upward toward the petitioner's parent or its affiliates' parents.
• The instructions for Forms I-129 and I-140 state that possible evidence to show the number of full-time equivalent employees includes a copy of the petitioner's most recent IRS Form 941, Employer's Quarterly Federal Return; or IRS Form 943, Employer' Annual Tax Return for Agricultural Workers. However, petitioners may submit any relevant evidence that shows the number of full-time equivalent employees by a preponderance of the evidence.
• The fee reduction for small employers is based on the number of full-time equivalent employees of the petitioning employer. For H-2A petitions filed by a U.S. agricultural producer association that is named as a joint employer on a temporary labor certification, employee count does not involve joint employers listed on the temporary labor certification unless they are affiliates or subsidiaries of the petitioner.
• Petitioning employers who outsource certain functions through a professional employer organization ("PEO") should not count the PEO's full-time equivalent employees in determining whether the petitioner qualifies as a small employer. However, in the absence of a Form 941, the petitioner must submit alternate documentation to confirm how many full-time equivalent employees they currently employ.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.