The Fees, The Fees, Where are the Fees (Going Up!)

The surprise announcement of a proposed fee increase at today’s USCIS stakeholder meeting should take no one by surprise. USCIS plans to raise filing fees by “generally” 10% or so across the board, except for Naturalization (which is already at an outrageous $675, but will really now be $680) and Adjustment of Status, which is only going up 6% (by $55!!), but the Form I-140 filing fee is increasing by 20% to $580 and Premium Processing is skyrocketing to $1,225!!! USICS is doing this at a time when inflation has been basically nonexistent, there has been zero accountability from USCIS, and quality of service levels have dropped across the board.

Director Mayorkas has said that the USCIS is taking further steps to cut spending by $160 million from its $2.5 BILLION dollar budget (less than 1%). There is no doubt that USCIS is hamstrung by Congress, which gives USCIS virtually no funding. And, federal law is clear that USCIS does have to recoup some costs from users of its services. These mandatory recoverable costs include:

• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;

• Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land,buildings, and equipment;

• Management and supervisory costs; and

• The costs of enforcement, collection, research, establishment of standards, and regulation.

OMB Circular A-25, User Charges (Revised), par. 6, 58 FR 38142 (July 15, 1993). INA section 286(m), 8 U.S.C. 1356(m), also provides DHS broader discretion to include other costs in their “recapture” from filing fees.

A very interesting and potentially very expensive (for users) change in the regulations is that USCIS is setting up the new fee structure to NOT be tied to Form numbers, such that for the Form I-129, used for many nonimmigrant visas, they can charge separate and disparate filing fees for each type of visa. The USCIS also is now effectively limiting the types of Forms for which fees can be waived by rewriting the regulation on fee waivers.

What is disturbing to me is that there is nothing in the announcement about reducing the over-hiring from previous two years (staff cuts) or even reducing salaries. Frankly, that is the first place EVERY business in America starts. Heck, even the Department of Transportation had to furlough 2,000 people from its employee roles in March because of a budget fight with Senator Bunning. Why is there such a reluctance to cut positions or salaries?. It is quite clear that the USCIS is overstaffed. Otherwise how do you explain the extraordinary number of unnecessary and redundant Requests for Evidence from the Service Centers that appear to be nothing more than “make work” for examiners? Nor is there anything in the USCIS fee increase proposal about trimming other areas of its budget, including the virtually useless “call centers,” employees benefits, or any other expense.

The real issue here is not necessarily the outrageousness of yet another fee increase, but really the source of funding for USCIS. More than 95% of USCIS’s funding comes from user fees. I know of no other federal agency which gets this much of their funding directly from its users. In that respect, USCIS is in many ways like a private business. If Congress is mandating that USCIS be funded from is users like a private business, then USCIS needs to operate like a private business and be run as such. That would start with cutting not just “expenses” but overhead, which includes much of the over-hiring that was done in the previous administration.

Further, let’s look at what we are NOT getting in this fee increase–quality control, employee accountability, and performance metrics. We don’t know how USCIS measures its employees or its programs, and we do not know what criteria they use, particularly for “rogue” examiners who issue unnecessary and overbroad RFEs and denials. We are also getting no RATIONAL explanation for the HUGE fee increase for premium processing, other than the USCIS needs the extra money to modernize its systems!

Now, this is a proposed rule. So I strongly urge every person who reads this to submit formal comments on the proposed rule through www.regulations.gov. The comment period runs for 45 days, beginning June 11, 2010 and ending July 26, 2010. Additional detail on the methodology and data USCIS used to develop these fees will be available at www.regulations.gov on June 11, 2010. I would encourage us to voice our strong opposition to these fee increase until USCIS justifies this increase with better performance, and real budget cuts, not a superficial less than 1%!