Congress Just Authorized USCIS to Raise Over $1 Billion in Fees from Business Users
How long will the immigration agency leave this money on the table?
Background
As the primary federal agency responsible for legal immigration, U.S. Citizenship and Immigration Services (USCIS) is almost entirely funded by user fees rather than appropriations from Congress. In May 2020, USCIS claimed that, due to a lower volume of fee collections caused by the COVID-19 pandemic, the agency would have to furlough over 13,000 of its employees absent a $1.2 billion bailout. Analysis of public documents by the Federation of American Scientists (FAS), however, demonstrated that USCIS was on the path to insolvency long before the COVID-19 pandemic, as a result of questionable management and policy choices.
Rather than accepting USCIS leadership’s demand for $1.2 billion in appropriated funds recoupable against an across-the-board 10% user fee increase, Congress opted to expand the agency’s ability to collect “premium processing” fees from those users willing to pay for faster service. For the better part of the past two decades, USCIS has provided a guaranteed 15-day turnaround for most employment-based green card petitions (Form I-140) and temporary work status petitions (Form I-129), in exchange for a special $1,440 premium processing fee. These extra fees could only be spent on the premium processing program itself, or on “infrastructure improvements in the adjudications and customer-service processes”—typically large information technology (IT) projects. In recent years, USCIS has enjoyed more than $600 million of extra cash on hand thanks to its premium processing program.
On August 22, 2020, the House of Representatives unanimously passed the Emergency Stopgap USCIS Stabilization Act, which was later included in the fiscal year (FY) 2021 Continuing Appropriations Act signed into law on October 1. This update to Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) gives USCIS the authority to take three major revenue-raising actions:
Immediately raise the premium processing fee for most I-140 and I-129 petitions from $1,440 to $2,500 (which USCIS has proceeded to do, effective Oct. 19, 2020).
Immediately extend premium processing services to employment-based green card petitions for multinational executives (Form 140 for EB-1C), employment-based green card petitions for individuals of exceptional ability with with a National Interest Waiver (Form 140 for EB-2 with “NIW”), applicants for a change or extension of nonimmigrant status (Form I-539), and applicants for an employment authorization document (Form I-765). (USCIS has declined to take such actions thus far.)
Issue new regulations to extend premium processing services to “any other immigration benefit type that the Secretary [of Homeland Security] deems appropriate.” (USCIS has not announced any such rulemaking plans thus far.)
These authorized fee and service changes are summarized in Figure 1 below.
Figure 1: Changes in Authorized Fees, Timeframes, and Eligibility for Premium Processing
n addition, the new law allows USCIS to use premium processing revenue for much more than just IT projects, including “the provision of information and services to immigration and naturalization benefit requestors,” reducing backlogs, and “otherwise offset[ting] the cost of providing adjudication and naturalization services.” (See Appendix B for the full text of the legislation.)
This means that USCIS immediately has extra funds available to mitigate its fiscal issues.
Expected Revenue from Premium Processing Expansion
If USCIS expanded its premium processing services only to the extent authorized by Congress for immediate execution, without the need for new regulations, the agency could increase its annual revenue by some $685 million to $1.06 billion.
Figure 2 below demonstrates that $300–434 million of this annual revenue increase could come from the action USCIS has already taken to raise premium processing fees on forms that have been included in the program for years (Forms I-140 and I-129).
USCIS could raise an additional $385–626 million in annual revenue by expanding premium processing to only those forms authorized for immediate eligibility by Congress. Most of this additional revenue would come from applications to change or extend nonimmigrant status (Form I-539) and applications for employment authorization by international students who have recently graduated and seek on-the-job training through the Optional Practical Training (OPT) program (Form I-765).
These forecasts are based on publicly available data and informed estimates about how many users would opt to take advantage of expanded premium processing, as explained in detail in the Methodology section below (Appendix A).
Note that Congress has also authorized USCIS to expand premium processing to users above and beyond the employment-based immigration system (e.g. family-based immigration and naturalization), but such changes would require new regulations and “a detailed methodology supporting the proposed premium fee amount.”
Figure 2: Expected Revenue Increase for USCIS from Expanded Premium Processing
|
Higher fees for already eligible forms |
Total form volume |
|
|
Fee change |
Lower bound (status quo utilitization) |
|
|
Upper bound (always-on premium processing) |
||||
|
Form |
(FY) 2019 |
2018 |
2017 |
2016 |
Average |
Net fee increase |
Exp. utilitization |
Est. premium volume |
Add’l revenue |
Exp. utilitization |
Est. premium volume |
Add’l revenue |
|
I-140 (except EB-1C and EB-2 NIW) |
114,634 |
109,913 |
112,312 |
118,762 |
113,905 |
$1,060 |
45% |
50,733 |
$53,776,481 |
65% |
73,514 |
$77,924,383 |
|
I-129 (H-2B) |
7,460 |
6,148 |
6,112 |
6,527 |
6,562 |
$60 |
45% |
2,923 |
$175,353 |
65% |
4,235 |
$254,094 |
|
I-129 (R) |
8,908 |
8,481 |
8,366 |
8,207 |
8,491 |
$60 |
45% |
3,782 |
$226,896 |
65% |
5,480 |
$328,782 |
|
I-129 (excluding H-2B and R) |
534,833 |
536,392 |
511,957 |
494,902 |
519,521 |
$1,060 |
45% |
231,391 |
$245,274,239 |
65% |
335,295 |
$355,412,691 |
|
Total |
665,835 |
660,934 |
638,747 |
628,398 |
648,478 |
288,827 |
$299,452,969 |
418,523 |
$433,919,951 |
|||
|
New fees for newly eligible forms |
Total form volume |
|
|
|
|
Fee change |
Lower bound (status quo utilitization) |
|
|
Upper bound (always-on premium processing) |
||
|
Form |
(FY) 2019 |
2018 |
2017 |
2016 |
Average |
New fee |
Exp. utilitization |
Est. premium volume |
Add’l revenue |
Exp. utilitization |
Est. premium volume |
Add’l revenue |
|
EB-1C (I-140) |
22,688 |
21,753 |
22,228 |
23,505 |
22,543 |
$2,500 |
45% |
10,041 |
$25,101,670 |
65% |
14,549 |
$36,373,376 |
|
EB-2 NIW (I-140) |
5130 |
4919 |
5026 |
5314 |
5,097 |
$2,500 |
45% |
2,270 |
$5,675,570 |
65% |
3,290 |
$8,224,140 |
|
I-539 (extend/change status) |
221,566 |
230,975 |
233,430 |
214,785 |
225,189 |
$1,750 |
35% |
78,816 |
$137,928,263 |
55% |
123,854 |
$216,744,413 |
|
I-765 (employment auth) for: |
||||||||||||
|
Post-completion OPT |
151,200 |
157,488 |
166,418 |
158,026 |
158,283 |
$1,500 |
45% |
70,498 |
$105,747,107 |
75% |
118,712 |
$178,068,375 |
|
STEM OPT |
61,963 |
65,119 |
57,214 |
51,809 |
59,026 |
$1,500 |
45% |
26,290 |
$39,434,779 |
75% |
44,270 |
$66,404,531 |
|
Pre-completion OPT |
2,119 |
2,693 |
3,345 |
3,636 |
2,948 |
$1,500 |
45% |
1,313 |
$1,969,693 |
75% |
2,211 |
$3,316,781 |
|
H-4 (spouses of H-1B) |
62,148 |
54,945 |
52,253 |
42,040 |
52,847 |
$1,500 |
45% |
23,537 |
$35,306,157 |
75% |
39,635 |
$59,452,313 |
|
L-2 (spouses L-1) |
29,337 |
27,803 |
27,266 |
26,008 |
27,604 |
$1,500 |
45% |
12,294 |
$18,441,591 |
75% |
20,703 |
$31,053,938 |
|
J-2 |
10,905 |
10,244 |
9,996 |
10,091 |
10,309 |
$1,500 |
45% |
4,592 |
$6,887,328 |
75% |
7,732 |
$11,597,625 |
|
E-1/E-2 spouses |
9,876 |
9,840 |
9,229 |
8,884 |
9,457 |
$1,500 |
45% |
4,212 |
$6,318,283 |
75% |
7,093 |
$10,639,406 |
|
G dependents |
2,310 |
2,442 |
2,295 |
2,485 |
2,383 |
$1,500 |
45% |
1,061 |
$1,592,056 |
75% |
1,787 |
$2,680,875 |
|
A dependents |
1,236 |
1,300 |
1,329 |
1,707 |
1,393 |
$1,500 |
45% |
620 |
$930,648 |
75% |
1,045 |
$1,567,125 |
|
Total |
580,477 |
589,521 |
590,029 |
548,290 |
577,079 |
235,545 |
$385,333,145 |
384,880 |
$626,122,897 |
|||
|
Grand total |
1,246,312 |
1,250,455 |
1,228,776 |
1,176,688 |
1,225,558 |
524,373 |
$684,786,114 |
803,403 |
$1,060,042,847 |
Conclusion
USCIS should take full advantage of its newly expanded premium processing authority as soon as possible. This course of action would allow the agency to more quickly dig itself out of its self-imposed fiscal hole, while providing a valuable service to many of its users.
In fact, boosting revenue through expanded premium processing is fiscally superior to the alternatives previously proposed by the agency. If Congress had authorized USCIS to impose an indiscriminate 10% across-the-board fee increase, this would have raised only about $400 million per year (given that USCIS’ annual non-premium fee collections are about $4 billion.)
Separately, USCIS has attempted to finalize a new fee schedule that would impose unprecedented burdens on applicants for naturalization, permanent residence, asylum, and many other users, both by dramatically raising fees and effectively eliminating fee waivers for lower-income applicants. Even stipulating that USCIS requires an extra $1 billion in annual revenue to stay solvent—a claim made in the fee rule that does not withstand empirical scrutiny, as discussed at a recent House Judiciary Committee hearing—the agency would almost certainly not generate that level of revenue by seeking to extract it from those least able to pay. Although USCIS protested in its final rule that the agency “does not know the price elasticity of demand for immigration benefits,” it stands to reason that dramatic fee increases on price-sensitive users will lead to lower-than-expected volume.
Congress has handed USCIS a golden opportunity to generate a significant amount of new revenue in exchange for the provision of valuable new services. The agency should quickly proceed with the authorized non-regulatory expansion of premium processing to all employment-based users who want it. This would enable USCIS to alleviate its insolvency crisis, remove the threat of a furlough from its embattled employees, and fund better services for all those who rely on the legal immigration system.
Appendix A: Methodology
This methodology section makes frequent reference to the following form types and immigration statuses.
Figure 3: Glossary of Premium Processing-Eligible Forms and Immigration Statuses
| Form | Immigration status | Definition |
| I-129 | Petition for a nonimmigrant worker | |
| H-2B | Temporary non-agricultural workers | |
| R | Person who works in a religious occupation (also includes spouses and dependents) | |
| I-140 | Immigrant petition for foreign workers | |
| EB-1C | First preference employment-based permanent residency for certain multinational managers or executives | |
| EB-2 with or without NIW | Second preference employment-based permanent residency, with or without a National Interest Waiver | |
| I-539 | Application to extend or change nonimmigrant status | |
| I-765 | Application for employment authorization | |
| A | Ambassadors, public ministers, career diplomats, consuls, and immediate family | |
| E-1 | Individuals or employees from countries with which the U.S. maintains commerce treaties who carry out international trade (including spouses and dependents) | |
| E-2 | Individuals or employees from countries with which the U.S. maintains commerce treaties who invest a substantial amount of money in a U.S. business (including spouses and dependents) | |
| G | Diplomats, government officials, and international organization employees visiting the U.S. for a governmental purpose (including immediate family and attendants or servants) | |
| H-4 | Spouse or child of an H-1B, B-1, C, H-2A, H-2B, or H-3 visa holder | |
| L-1 | Intracompany transferee, including executive, managerial, or specialized personnel continuing their employment in the U.S. with an international firm or corporation | |
| Post-completion OPT | Optional Practical Training after the completion of an undergraduate or graduate degree | |
| Pre-completion OPT | Optional Practical Training prior to the completion of an undergraduate or graduate degree | |
| STEM OPT | Optional Practical Training extension for graduates with a science, technology, engineering, or mathematics (STEM) degree |
The first section of our model (see Figure 2) estimates the expected revenue generated by increasing fees for forms that were already eligible for premium processing. This includes I-140s (except for EB-1C and EB-2 NIW) and I-129s. The total annual volume for these forms was derived from both USCIS data (2019–2016) and the Department of Homeland Security (DHS) lawful permanent resident data tables (Table 7d 2018–2016). The net premium processing fee increase for these forms types is based on the fee summary in Figure 1.
The precise percentage of forms that use premium processing versus regular processing is not publicly available. In its most recent Federal Register notice to increase the premium processing fee last year, however, USCIS published the annual volume of Form I-907 (Request for Premium Processing Service). On average between FY 2016–2018, it appears that 45% of eligible I-140 and I-129 filers also filed an I-907. As a lower bound, it seems reasonable to expect that 45% of I-140 and I-129 filers will continue to opt into premium processing, given that business users are relatively price-inelastic.
The actual utilization rate may end up significantly higher, however, given that Congress has now constrained USCIS’ ability to turn off premium processing services. Over the past several years, USCIS has periodically suspended premium processing when the volume of forms in the program became too great for the agency to adjudicate within the required 15 calendar days. The length and frequency of these suspensions has been difficult to predict. In a world of always-on premium processing, more users are likely to take advantage of the program. While it is impossible to predict this upper bound with certainty, we added an additional 20 percentage points, for a maximum utilization rate of 65%.
The second section of our model (again, see Figure 2) estimates the expected annual revenue generated from new forms that USCIS has the authority to bring into the premium processing program immediately, without issuing a new regulation. These forms include I-140 for EB-1C and EB-2 NIWs; I-539; and I-765. We make the assumption that the main users who would take advantage of premium processing for employment authorization are those in the categories of pre- and post-completion Optional Practical Training (OPT); J-2; spouses of H-1B (H-4), L-1 (L-2), E-1, and E-2 visa holders; and dependents of G and A visa holders.
The total annual volume for these forms was derived from both USCIS data (2019–2016) and the Department of Homeland Security (DHS) lawful permanent resident data tables (Table 7d 2018–2016). The new premium processing fees for these forms types are based on the fee summary in Figure 1.
For EB-1C and EB-2 NIW petitions, we made the same assumptions of a 45–65% utilization rate as described above.
For I-539 applications, we assumed that both the lower- and upper-bound utilization rates would be 10 percentage points lower (35–55%), given that a comparable proportion of filers are in a humanitarian status category (e.g. U or T), and are less likely to be able to afford premium processing fees.
For I-765 applications, we assumed that the upper-bound utilization rate would be higher (75% rather than 65%), because the need for employment authorization is often acutely time-sensitive.
Appendix B: Premium Processing Expansion from FY 2021 Appropriations Act
SECTION 4102. EXPANSION OF PREMIUM PROCESSING.
(a) IN GENERAL.—Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) is amended to read as follows:
‘‘(u) PREMIUM FEE FOR CERTAIN IMMIGRATIONBENEFIT TYPES.—
‘‘(1) IN GENERAL.—The Secretary of Homeland Security is authorized
to establish and collect a premium fee for the immigration benefit types
described in paragraph (2). Such fee shall be paid in addition to any other
fees authorized by law, deposited as offsetting receipts in the Immigra-
tion Examinations Fee Account established under subsection (m), and
used for the purposes described in paragraph (4).
‘‘(2) IMMIGRATION BENEFIT TYPES.—Subject to reasonable condi-
tions or limitations, the Secretary shall establish a premium fee under
paragraph (1) in connection with—
‘‘(A) employment-based nonimmigrant petitions and associated
applications for dependents of the beneficiaries of such petitions;
‘‘(B) employment-based immigrant petitions filed by or on behalf of
aliens described in paragraph (1), (2), or (3) of section 203(b);
‘‘(C) applications to change or extend nonimmigrant status;
‘‘(D) applications for employment authorization; and
‘‘(E) any other immigration benefit type that the Secretary deems
appropriate for premium processing.
‘‘(3) AMOUNT OF FEE.—
‘‘(A) IN GENERAL.—Subject to subparagraph (C), with respect to
an immigration benefit type designated for premium processing by
the Secretary on or before August 1, 2020, the premium fee shall be
$2,500, except that the premium fee for a petition for
classification of a nonimmigrant described in subparagraph (H)(ii)
(b) or (R) of section 101(a)(15) shall be $1,500.
‘‘(B) OTHER IMMIGRATION BENEFIT TYPES.—With respect
to an immigration benefit type designated for premium processing
but not described in subparagraph (A), the initial premium fee shall
be established by regulation, which shall include a detailed method
ology supporting the proposed premium fee amount.
‘‘(C) BIENNIAL ADJUSTMENT.—The Secretary may adjust a pre-
mium fee under subparagraph (A) or (B) on a biennial basis by the
percentage (if any) by which the Consumer Price Index for All
Urban Consumers for the month of June preceding the date on
which such adjustment takes effect exceeds the Consumer Price
Index for All Urban Consumers for the same month of the second
preceding calendar year. The provisions of section 553 of title 5,
United States Code, shall not apply to an adjustment authorized
under this subparagraph.
‘‘(4) USE OF FEE.—Fees collected under this subsection may only be used
by U.S. Citizenship and Immigration Services to—
‘‘(A) provide the services described in paragraph (5) to premium
processing requestors;
‘‘(B) make infrastructure improvements in adjudications processes
and the provision of information and services to immigration and
naturalization benefit requestors;
‘‘(C) respond to adjudication demands, including by reducing the
number of pending immigration and naturalization benefit re-
quests; and
‘‘(D) otherwise offset the cost of providing adjudication and natu-
ralization services.
‘‘(5) PREMIUM PROCESSING SERVICES.—The Secretary—
‘‘(A) may suspend the availability of premium processing for des-
ignated immigration benefit requests only if circumstances prevent
the completion of processing of a significant number of such re-
quests within the required period; and
‘‘(B) shall ensure that premium processing requestors have direct
and reliable access to current case status information as well as the
ability to communicate with the premium processing units at each
service center or office that provides premium processing ser-
vices.’’.
(b) EXPANSION TO NEW BENEFIT REQUESTS.—
(1) IN GENERAL.—Notwithstanding the requirement to set a fee by regulation
under section 286(u)(3)(B) of the Immigration and Nationality Act (8 U.S.C.
1356(u)(3)(B)), as amended by subsection (a), the Secretary of Homeland Secu-
rity may set a fee under that section without regard to the provisions of section
553 of title 5, United States Code, if such fee is consistent with the following:
(A) For a petition for classification under section 203(b)(1)(C) of the Im-
migration and Nationality Act (8 U.S.C. 1153(b)(1)(C)), or a petition for
classification under section 203(b)(2) involving a waiver under section
203(b)(2)(B) of such Act, the fee is set at an amount not greater than
$2,500 and the required processing timeframe is not greater than 45 days.
(B) For an application under section 248 of the Immigration and Nation
ality Act (8 U.S.C. 1258) to change status to a classification described in
subparagraph (F), (J), or (M) of section 101(a)(15) of such Act (8 U.S.C.
1101(a)(15)), the fee is set at an amount not greater than $1,750 and the
required processing timeframe is not greater than 30 days.
(C) For an application under section 248 of the Immigration and Nation-
ality Act (8 U.S.C. 1258) to change status to be classified as a dependent
of a nonimmigrant described in subparagraph (E), (H), (L), (O), (P), or
(R) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), or to extend
such classification, the fee is set at an amount not greater than $1,750 and
the required processing timeframe is not greater than 30 days.
(D) For an application for employment authorization, the fee is set at an
amount not greater than $1,500 and the required processing timeframe is
not greater than 30 days.
(2) CLARIFICATION.—The required processing timeframe for each of the
applications and petitions described in paragraph (1) shall not commence until
the date that all prerequisites for adjudication are received by the Secretary of
Homeland Security.
(c) OTHER BENEFIT REQUESTS.—In implementing the amendments made by subsection (a), the Secretary of Homeland Security shall develop and implement processes to ensure that the availability of premium processing, or its expansion to additional immigration benefit requests, does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated.
Appendix C: List of Sources for Data Model
- USCIS budget documents:
- Premium processing fee increases over time (Federal Register notices):
- DHS data on lawful permanent residents (Table 7d)
- USCIS data on I-765 employment authorization applications
- USCIS forms data:
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