US Asylum Program Fee

 

The Final Rule published by US Citizenship and Immigration Services (USCIS) on January 30, 2024, updated the fee schedule for US immigration petitions, applications and other services. In particular, a new Asylum Program Fee was introduced to be levied on certain employer/sponsors to help partly fund the costs of asylum processing.

In this guide, we explain what we know so far about the Asylum Program Fee, including how much it costs, who has to pay it and if any exemptions apply.

 

What is the US Asylum Program Fee?

 

The Asylum Program Fee is an additional fee of $600 that most employers must pay if they 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 Workers). This $600 fee is in addition to the filing fees for each of these forms.

The Asylum Program Fee is not a fee to file an asylum application, but a fee intended to cover some of the costs associated with asylum processing, which does not include its own fee. The Department of Homeland Security (DHS) arrived at the fee level for the Asylum Program Fee by calculating the amount that would need to be added to the fees for Forms I–129, I–129CW and I–140 to collect the estimated annual costs for asylum processing. The DHS estimates the Asylum Program Fee will generate approximately $313 million in revenue to help cover the cost for USCIS to adjudicate asylum applications.

The new Asylum Program Fee under the Final Rule is effective from April 1, 2024. As part of this rule, USCIS will also update its forms, although USCIS will accept prior editions of most forms during a grace period from April 1, 2024, to  June 3, 2024. During this grace period, USCIS will accept both previous and new editions of certain forms that are filed with the correct fee. However, there will be no grace period for other forms, including Forms I-129, 1-129CW and I-140, because these must be revised with a new fee calculation.

The postmark date of a filing will be used by USCIS to determine which form version and fees under the new Final Rule are correct, where any petitions or applications postmarked on or after April 1, 2024, must include the new fees or USCIS will not accept them. The receipt date will be used for purposes of any regulatory or statutory filing deadlines.

 

Why was the US Asylum Program Fee introduced?

 

Unlike many other federal agencies in the United States, USCIS is almost entirely fee-funded, where approximately 96% of its funding comes from customers by way of filing fees, and only about 4% is from taxpayers in the form of congressional appropriations.

In the recently published Final Rule to adjust certain immigration and naturalisation benefit request fees for the first time since 2016 — following a comprehensive fee review in which it was concluded that the existing fee schedule fell far short in recovering the full cost of agency operations — various fee increases have been put in place to allow USCIS to recover a greater share of its operating costs and support more timely processing of new applications. With the extra revenues that the new Final Rule will generate, including the Asylum Program Fee, this will hopefully help USCIS to improve its efficiency measures and customer experience, and to stem the growth of immigration benefit backlogs.

Increasing fees for employment-based petitioners to subsidise asylum applicants may seem unfair, but this is arguably an effective way to shift a proportion of USCIS operational costs to requests that are submitted by petitioners who generally have more ability to pay, as opposed to shifting those costs to all other fee payers. The $600 fee increase for employer petitioners is therefore a measure intended to mitigate the size of the fee increases for individual filers, in this way maintaining lower fees for other immigration benefit requestors than if these asylum costs were spread equally among all other fee payers.

 

How much is the US Asylum Program Fee?

 

The Asylum Program Fee for larger employer petitioners is $600. Those classed as ‘small’ employers pay a discounted fee of $300. A small company is defined as having 25 or fewer full-time equivalent employees.

The fee is in addition to the filing fees for Forms I-129, I-129CW or I-140 in relation to which there have been significant increases under the Final Rule.

Possible evidence for small employers to support eligibility for the reduced Asylum Program Fee (and filing fee) is likely to include 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). Equally, possible evidence to support eligibility for the exemption and reduced filing fee for nonprofits is likely to include the organisation’s Determination Letter from the IRS or copy of a currently valid IRS tax exemption certificate.

For forms where USCIS offers online filing, there will also generally be a $50 discount for those who choose this online option over paper filing, except in limited circumstances.

 

Who has to pay the US Asylum Program Fee?

 

The US Asylum Program Fee is payable by petitioners filing Forms I-129, I-129CW or I-140 on behalf of either nonimmigrant or immigrant beneficiaries in an employment context.

When it comes to who may file Form I-129 to classify a beneficiary in a number of different nonimmigrant classifications, this will typically be the US employer. A foreign employer or US agent can also file for certain classifications. A US individual or company in business as an agent may file a petition for workers who are either traditionally self-employed or use agents to arrange short-term employment on their behalf with various employers in the USA, and in cases where a foreign employer authorises the agent to act on its behalf.

In most cases, more than one beneficiary can be included in a single petition, although the recently published Final Rule limits the number of named beneficiaries on certain petitions for nonimmigrant workers to 25 in total. All beneficiaries must also be employed for the same period of time, as well as performing the same services, receiving the same training or participating in the same international cultural exchange program.

Form I-129CW is used by employers to petition for overseas workers to temporarily come as nonimmigrants to the Commonwealth of the Northern Mariana Islands (CNMI) to perform services or labour as CNMI-Only Transitional Workers (CW-1 workers). The employer may file this petition to classify an alien as a CW-1 Worker, although the worker must either be lawfully present in the CNMI or coming from abroad to the CNMI with a CW-1 visa. The worker cannot be present in the United States, other than in the CNMI.

For Form I-140, a US employer may file this petition for experienced outstanding professors or researchers; experienced intra-company transferees working in an executive or managerial capacity; members of the professions holding either an advanced degree or with exceptional ability in the sciences, arts or business; experienced skilled workers performing labour for which qualified workers are not available in the United States; members of the professions with baccalaureate degrees; or unskilled workers with minimal experience to perform labour in the USA for which qualified workers are not otherwise available.

In addition, any employer, individual or third party may file this petition, including the petition’s beneficiary, in two scenarios. The first scenario is for those of extraordinary ability in either the sciences, the arts, or in education, business or athletics, as demonstrated by sustained national and/or international acclaim and whose achievements are recognised in their field. The second scenario is for members of the professions holding an advanced degree or, alternatively, claiming exceptional ability in either the sciences, the arts or in business seeking an exemption of the job offer requirement in the national interest.

 

Exemptions to the US Asylum Program Fee

 

The Final Rule exempts the Asylum Program fee entirely for nonprofit petitioners. The Asylum Program Fee is therefore $0 for nonprofits to file Forms I–129, I-129CW and I–140. In addition, for the Form I-129 fee and the Form I-129CW fee, nonprofits (and small employers) will pay a 50% discounted fee or the same fee as under the previous fee rule, if 50% of the new fee would be less than the previous fee.

 

When does the US Asylum Program Fee need to be paid?

 

From April 1, 2024, when an employment-based petitioner files either Form I-129, I-129CW or I-140, in addition to paying the filing fee for that form, they must also pay the $600 fee. As such, any petitions submitted to USCIS that are postmarked on or after April 1, 2024, must include the new Asylum Program Fee or they will not be accepted.

As with other fees, the filing fee and Asylum Program Fee must be paid separately if paying by check or money order. This is because USCIS are transitioning to electronically processing immigration benefit requests, which requires them to use multiple systems to process a petitioning package. Where separate fees are required, USCIS may reject the entire package if petitioners submit a single, combined payment for multiple forms.

 

How to pay the US Asylum Program Fee
 

As with other application processing fees, the Asylum Program Fee can be paid with either a money order, personal check, cashier’s check or paid by credit card using Form G-1450 (Authorization for Credit Card Transactions). If paid by check, petitioners must make their check payable to the DHS. When sending a payment, petitioners are agreeing to pay for a government service, where filing fees are both final and non-refundable, regardless of any action taken by USCIS on any application, petition or request, or if a request is withdrawn. As such, it is also likely that the Asylum Program Fee will be non-refundable once paid.

 

Need assistance?

 

NNU Immigration are dedicated US visa and nationality attorneys. For advice on the Asylum Program Fee, speak to our experts.

 
This article does not constitute direct legal advice and is for informational purposes only.