Federal Judge Issues Temporary Injunction to Stop USCIS Fee Increases

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new court order that prohibits the government from enforcing a final rule that sought to increase filing fees for certain applications and petitions filed with the United States Citizenship and Immigration Services (USCIS). For more information keep on watching.

Overview

As many of you know on August 3, 2020, the Department of Homeland Security published a final rule in the Federal Register which sought to increase filing fees for most applications and petitions for immigration benefits payable to the United States Citizenship and Immigration Services (USCIS). These filing fee increases were made by USCIS in order to help the agency meet its operational costs and ensure adequate resources to cover services provided by USCIS to applicants and petitioners.

Just days before the filing fee increase was scheduled to go into effect, a federal judge from the U.S. District Court for the Northern District of California issued a nationwide temporary injunction blocking the government from implementing the final rule. The court order essentially stops the government from enforcing the fee increases as the government had originally planned beginning October 2, 2020.

The preliminary injunction issued by the court took effect immediately as of the date of the ruling (September 29, 2020) and will remain in effect pending resolution of the lawsuit Immigrant Legal Resource Center, et al., v. Chad F. Wolf.

Why did the Judge Grant the Injunction?

Several nonprofit organizations including the immigrant Legal Resource Center came together to file a lawsuit in the U.S. District Court for the Northern District of California challenging the government’s planned enforcement of the final rule increasing USCIS filing fees. In their lawsuit, these organizations asked the court to grant a nationwide injunction to block the government from enforcing the rule to applications and petitions postmarked on or after October 2, 2020.

The judge ultimately agreed with the nonprofit organizations finding that the plaintiffs were likely to succeed on the merits of their claims. The judge also found that the two acting DHS officials who previously authorized the fee increases were improperly appointed to their positions, and thus any subsequent attempts to pass the final rule were against the law. Accordingly, the judge decided that plaintiffs met their burden having shown that the public interest weighed in favor of granting the injunction.

Why is this decision important?

The judge’s issuance of the nationwide injunction is important because it stops the government from enforcing costly fee increases that would have disproportionately affected low income immigrants, vulnerable classes of immigrants such as asylees and refugees, and U.S. employers during the Coronavirus pandemic.

Without the injunction, the government would have increased fees for certain petitions by a significant amount. As an example, the new rule would have increased naturalization filing fees by 83%, removal of conditions applications by 28%, and I-601A waiver fees by 52%, among other notable increases.

Additionally, the final rule would have placed U.S. employers and foreign workers at a disadvantage by increasing the premium processing timeline to almost three weeks, from 15 calendar days, imposing new and/or additional fees on asylum and DACA applicants, and requiring employers with a high proportion of H-1B and L-1 employees to make additional border security fee payments when petitioning for employees.

What’s next

Now that the court ruling has been issued, for as long as the injunction remains in effect, USCIS must continue to use its current fee schedule and accept the current version of all forms.  The agency must also honor the premium processing timeline of fifteen (15) calendar days, as opposed to the extended timeline of fifteen (15) business days set forth in the final rule.

Until further notice, the government may not enforce or implement any part of its final rule issued on August 3, 2020. While it is possible that the government could appeal the issuance of the injunction, it will likely remain in place.

Should the government be successful in appealing the judge’s decision we will provide further updates on our blog.

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