Introduction:

A group of immigrants and employer groups filed a lawsuit against the exponential fees increase proposed by USCIS scheduled to take effect from April 1, 2024. This case was filed by the Plaintiffs Samantha Moody, American Immigrant Investor Alliance (AIIA), and IT Service Alliance at The District court of Colorado. This case addresses significant concerns regarding fairness, procedural compliance, and the effects of fee hikes on different stakeholders in immigration system.

This fee increase may hamper many individuals and sponsoring organizations by drastically increasing the filing fees by shifting the burden to pay Asylum Program Fee on sponsoring companies and individuals. The defendants have contended that the arbitrary regulation by USCIS which is set to more than double the EB-5 fees. The current case revolves around the administrative procedures not being followed by USCIS and Department of Homeland Security, while bringing the final action rule increasing the fees hike.

The attorneys had also filed a motion for a Temporary Restraining Order in order to block the increase in the filing fees taking effect on April 1, 2024, however a District Court has already denied this and therefore the new fees will continue to take effect.

Contentions and Allegations:

The Plaintiffs contend that procedural standards were broken by promulgating the Final Rule and that the rule unlawfully imposes fee increases of 100% or higher.

Unlawful Promulgation Without Notice and Comment: The Plaintiffs allege that the Final Rule regarding changes to fees for immigration benefits was unlawfully promulgated without appropriate notice and comment, violating procedural requirements.
Arbitrary Imposition of Asylum Program Fee: The Final Rule imposes an “Asylum Program Fee” of $600 on certain categories of Petitioners for employment-based immigration benefits to fund DHS’s asylum program. The Plaintiffs contend that this fee is arbitrary, lacks legal justification, and unfairly burdens petitioners.
Significant Fee Increases for Adjudication: The Final Rule raises fees significantly for the adjudication of immigration benefits, with some fees increasing by 70% to over 200%. The Plaintiffs argue that these fee increases are unjustified and will impose financial hardships on individuals and businesses seeking immigration benefits.
Violation of Law in EB-5 Program: The Final Rule doubles immigrant investor fees through the EB-5 program without completing the fee study mandated by Congress. The Plaintiffs allege that this action violates statutory requirements and fails to align fees with processing times as intended by Congress.
Procedural Invalidity: The Plaintiffs assert that the Final Rule is procedurally invalid, contrary to law, and must be set aside under the Administrative Procedure Act due to the lack of completion of the fee study and failure to align fees with statutory principles.

Implications and Stakeholders:

The legal challenge has far-reaching consequences. The Final Rule’s suggested fee increases and modifications may have an impact on EB-5 investors, IT firms that depend on H-1B visas, and those looking to immigrate. The Plaintiffs express concerns about the potential negative impact of the fee adjustments on persons and businesses operating inside the immigration system, as well as unjust burdens and financial hardships due to imposition of shifting the burden of asylum fees on individuals and IT firms.

Conclusion:

The outcome of this case could have a big impact on the sponsoring companies and individuals. A recurring pattern has emerged wherein lawsuits are brought against USCIS and DHS due to their failure to adhere to all requisite procedures before bringing any rule into action.

If you have any questions regarding the above, please e-mail PLG Partner at cprescott@patellegal.com.