On Jan. 31, 2024, the Department of Homeland Security (DHS) published a Final Rule on USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements in the Federal Register. The Final Rule goes into effect on Apr. 1, 2024. In anticipation of the fee schedule changes, we suggest the following practice tips to prepare your legal services programs.

1. Review the Final Rule and Familiarize Yourself with the USCIS Fee Rule Changes

Practitioners must adhere to ethics rules, including the duty to competently represent a client; failure to do so is subject to disciplinary action. 8 CFR § 1003.102(o). This includes maintaining knowledge of changes in law or policy that directly impact representation. Thus, practitioners should review the Final Rule and the U.S. Citizenship and Immigration Services (USCIS) FAQs on the Fee Rule. USCIS announced that the FAQ will be a living document that it will periodically review and update, so keep an eye out for changes to the document. The Federal Register publication containing the Fee Rule is hundreds of pages long, and it contains a preamble to the final rule followed by final rule regulatory text. Practitioners should pay special attention to the final rule regulatory text that the final rule amends and codifies. Dedicate staff time to reading, discussing, and preparing for these changes. CLINIC published a summary of the Final Rule, What Will Change Under USCIS Fee Schedule Final Rule?, and you can watch CLINIC’s webinar on USCIS Fee Changes - How to Prepare Your Program.

2. Identify Clients Whose Filing Fees May Change

Use your case management software database to run reports on open cases by case type and determine the number of cases you have not yet filed where your filing strategy may change before Apr. 1, 2024. Remember, this will include case types where the filing fee will increase, decrease, or become fee exempt, or where an applicant or petitioner will become eligible to request a fee waiver or reduction.

Who May Want to File Before Apr. 1, 2024?

Applicants with Filing Deadlines. First and foremost, if there is a deadline for which your client must file a petition or application before Apr. 1, 2024, and you and your client have agreed to do so, you should prioritize these clients. For example, if your client is a VAWA self-petitioner and you have agreed to file an I-765 for a renewal Employment Authorization Document (EAD), under the Final Rule, this renewal EAD application is fee exempt. However, your client will only get the benefit of an automatic EAD extension if the client files the I-765 before the client’s current EAD expires. The expiration date and processing times for I-765s may lead the client to make the decision to pay the filing fee, rather than wait to postmark the application after Apr. 1, 2024, when renewal of a (c)(31) EAD becomes fee exempt.

Adjustment Applicants Affected by Interim Benefit Fee Unbundling. Beginning Apr. 1, 2024, adjustment applicants will have to pay separate filing fees for Form I-485 (adjustment of status), Form I-131 (travel document), and Form I-765 (employment authorization), unless the applicants are fee exempt or eligible for a fee waiver. For example, family-based adjustment applicants generally are not fee exempt or eligible for a fee waiver. Thus, they may want to file I-485 applications before Apr. 1, 2024, so they do not incur a fee for their Form I-131 and Form I-765.

DACA Applicants. The Fee Rule makes no changes to the fee for Form I-821D; it remains $85. However, DACA applicants must submit a Form I-765, Application for Employment Authorization, with their Form I-821D, and there will be an increase in the filing fee for the Form I-765 to $520 for paper filing and $470 for online filing. Whether to file may also depend on the applicant’s deferred action and EAD expiration dates. Fee waivers are not available for DACA applicants.

TPS Applicants. The Fee Rule makes no changes to the fee for Form I-821 for initial registration, which the statute caps at $50. Similarly, the Fee Rule makes no change to fees for re-registration for TPS, as statute does not allow for a fee for TPS re-registration applications. However, there will be a separate biometrics fee for all TPS applicants regardless of age. The biometrics fee will decrease from $85 to $30. The fee for Form I-765 will increase to $520 for paper filing and $470 for online filing for all applicants regardless of age. TPS applicants may submit fee waiver requests on paper only.

Who May Want to Delay Filing until After Apr. 1, 2024?

Applicants Who Qualify for Expanded Fee Exemptions. The Fee Rule codifies existing fee exemptions and provides for new fee exemptions, including exemptions for certain humanitarian filings. Notable expanded exemptions will apply to:

• Special Immigrant Juveniles (SIJs);
• Survivors of human trafficking (T nonimmigrant status);
• Survivors of crime (U nonimmigrant status);
• Violence Against Women Act (VAWA) self-petitioners;
• Special Immigrant Afghan or Iraqi translators or interpreters, Iraqi nationals employed by or for the U.S. government or Afghan nationals employed by or for the U.S. government or employed by the International Security Assistance Force and their derivatives;
• Abused spouses and children adjusting status under the Cuban Adjustment Act (CAA) and Haitian Refugee Immigration Fairness Act (HRIFA);
• Abused spouses and children seeking Benefits under Nicaraguan Adjustment and Central American Relief Act (NACARA);
• Abused spouses and children of LPRs or U.S. citizens under INA § 240A(b)(2);
• Refugees or LPRs based on refugee status seeking a Refugee Travel Document (RTD);
• Conditional permanent residents seeking a waiver of the Form I-751 joint filing requirement based on battery or extreme cruelty;
• Certain U.S. military servicemembers; and
• Certain adoption-related requests.

The expanded humanitarian exemptions generally extend through the adjudication of adjustment of status, and the exemptions also apply to derivative beneficiaries in the VAWA, U, and T nonimmigrant contexts.

On or after Apr. 1, 2024, if a filing is fee exempt, do not send any fee or fee waiver request. USCIS indicated that if an applicant erroneously submits a fee for a case where a fee exemption applies, USCIS will intake and deposit the fee.

Applicants to Renew or Replace LPR Cards. The Form I-90 Application to Replace LPR Card will decrease from $540 (with biometrics) to $415 if you file it online, or $465 if you file it on paper.

Certain Naturalization Applicants. USCIS expanded the threshold for fee reductions for naturalization applications after Apr. 1, 2024. Prior to Apr. 1, 2024, if at the time of filing, an applicant’s documented annual household income is greater than 150% but not more than 200% of the Federal Poverty Guidelines (FPG), they may be eligible for a reduced filing fee. After the Final Rule goes into effect, eligibility for the reduced fee will expand to applicants with a household income at or below 400% of the FPG. If an applicant’s household income is above 200% and below 400% of the FPG, they may wish to wait to file so they can pay the reduced fee.

Certain Asylees or LPRs based on Asylee Status Requesting a Refugee Travel Document. Although the Fee Rule provides a fee exemption for refugees and LPRs based on refugee status who request a Refugee Travel Document (RTD) through Form I-131, the Fee Rule notably treats asylees differently. Specifically, the Fee Rule does not provide any fee exemption or fee waiver for an asylee or LPR based on asylee status requesting an RTD through Form I-131. However, asylees and LPRs based on asylee status who were not previously exempt from paying a biometrics fee will see a fee decrease after the Fee Rule goes into effect. The Fee Rule does not require a separate biometrics fee, and the fee will be $135 for applicants under age 16 and $165 for all applicants age 16 or older.

3. Evaluate Your Program’s Capacity

Over and again, we hear that the demand for immigration legal services far outweighs the capacity to represent all who need immigration legal help. When demand outweighs resources, and you add a change in the law that requires re-evaluation of strategy, you have a recipe for burnout. It will be important to take care of your staff at this time and ensure you are complying with ethics rules with respect to communication and meeting deadlines. This includes a review of each legal service provider’s case list to help your team decide whether cases may need to be shuffled to balance workloads and meet deadlines. If your program does not have the capacity to complete and postmark a filing before Apr. 1, 2024, and your client wishes for the filing to be postmarked before that date, you must communicate your lack of capacity to the client and give them the opportunity to choose to identify an alternative representative.

If you determine your program has the capacity to meet the demand of your current clients, you may then review your program’s capacity to accept prospective clients. If your program can take on new cases, you may consider different service delivery models that will allow your program to respond to an increased volume of applications. As an example, given the fee decrease for certain naturalization applications and the expansion of accessibility to reduced fees to individuals with household income at or below 400% of the FPG, consider conducting a naturalization workshop.

4. Communicate with Your Clients

Legal service practitioners must keep clients reasonably informed about the status of their cases. See 8 CFR § 1003.102. They must also explain cases to the extent reasonably necessary to permit clients to make informed decisions regarding representation. To comply with ethics rules, a representative should communicate with any client who may be impacted by the Fee Rule to explain any applicable fee change. This should include a discussion of relevant deadlines and the impact of a filing before or after Apr. 1, 2024.

5. Document Client Communication, including Attempts to Communicate

Just as it is important to communicate with the client during representation to assist a client in making good, strategic decisions, it is also important to document that conversation. Legal service providers should document client communications so that all program employees understand the matter’s status. It is also important to document communications in the file to protect against any ineffective assistance of counsel claim or a program malpractice liability. Documentation of client communication will generally include a summary of the information you shared, your advice, why you gave your advice, the client’s decision and reasons for such decision, especially if the decision did not align with your advice.

6. Carefully Review Your Cases Before Filing

Make sure that you completely fill out the correct forms. Keep in mind that USCIS will release new form editions, so pay careful attention to form validity dates and any grace period that may apply. Where a grace period applies, USCIS will accept prior and new editions of most forms through Jun. 3, 2024, if filed with the correct fee. However, there will be no grace period for the following new forms:

• Form I-129, Petition for a Nonimmigrant Worker;
• Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker;
•  Form I-140, Immigrant Petition for Alien Workers;
• Form I-600A, Application for Advance Processing of an Orphan Petition (and Form I-600A/I-600 Supplements 1, 2, and 3); and
• Form I-600, Petition to Classify Orphan as an Immediate Relative.

For these forms that will have no grace period, you must use the new form versions, beginning Apr. 1, 2024. Preview versions of these forms are available on the form’s landing page.

USCIS will use the postmark date of a filing to determine which form version and fees are correct, and it will use the received date for purposes of any regulatory or statutory filing deadlines. For purposes of determining a postmark date, USCIS generally relies on the shipping date printed on the USPS or courier service shipping label. If there is no shipping date on the label, USCIS will consider the label’s print date as the postmark date. If no print or ship date are available on the package’s label, USCIS will assume the postmark date is 10 days before the date of receipt.

When you submit any forms to USCIS, you must include the correct filing fee, unless a form is fee exempt or you are requesting a fee waiver or reduction. There is no grace period for filing fees; this means that all forms postmarked after Apr. 1, 2024, must include the new fee. Once the Fee Rule becomes effective, USCIS will remove all filing fee information from the form instructions. Instead, fee information will be available on Form G-1055, Fee Schedule, and USCIS has indicated that the Fee Calculator will be updated on Apr. 1, 2024 as well.

Once the Fee Rule is effective, filing fees paid by credit card will no longer be subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS. Furthermore, where an applicant pays a fee where a fee exemption applies or where they are requesting a fee waiver, USCIS will intake and deposit the fee, and the fee will not be returned. Finally, USCIS will no longer accept a single check or money order for combined fees when a person is submitting multiple applications at once. For example, if a petitioner is filing a family-based petition, and the beneficiary of the petition is filing an application for adjustment of status with the family-based petition, there must be separate payments for the petition and application. Likewise, for TPS Requests accompanied by a payment, any filing and biometrics fees will require separate checks or money orders. USCIS may reject a filing if you submit a single, combined payment for multiple forms.

When you send in forms, include all required initial evidence, confirm you have signed all signature pages, and be sure to send the form to the correct filing address to avoid any filing delay or rejection.

7. Update Your Program’s Checklists and Resources that Include Fee Information

Review your program’s checklists and any resources you give to clients that make reference to USCIS fees and fee waivers. Revise these checklists and resources to reflect changes within the Fee Rule.

8. Consider Updating Your Program’s Policies and Procedures Regarding Online Filing

For many benefit requests, there is now a $50 discount for filing applications online, except in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee. Only these Forms are available to file online. At this time, you must file on paper any application involving a request for fee waiver. Similarly, naturalization applicants seeking a reduced fee will have to file on paper. Nonetheless, USCIS intends to expand online filing to additional forms in the future. You may want to consider altering your filing processes and procedures if you have not historically incorporated online filing as a part of your practice.

9. Monitor Litigation that May Affect the Implementation of the USCIS Fee Rule

Keep an eye on litigation. If litigation results in the Fee Rule becoming enjoined from implementation, you may have to revert to your strategy before Apr. 1, 2024. Your strategy will have to be a nimble one.

10. Evaluate and Report the Effects of the Fee Rule to Leadership

It is important to report the effects of the Fee Rule to leadership. Leadership will want to know how the Fee Rule impacts your staff’s workload, projected revenue and expenses, and data that may be important to strategize around fundraising. For example, perhaps you planned to dedicate a particular percentage of your budget to family-based applications, but that work may decrease given the increase in application fees and unbundling of fees for interim benefits. Leadership will be interested in knowing key data points, including the change in fees, the effect on outputs, and how the increase in fees may further exacerbate the problem of family separation. Leadership may also be interested in client stories to appeal to funders who may donate money to help bring and/or keep families together.