It’s fair to say that no one likes price increases. However, any price increase is far easier for a consumer to swallow if the consumer feels that he or she is getting something of value in return for the additional money paid, whether it is an improved product or more efficient service. Would that we could rationalize the fee increases announced by USCIS today by saying that we and our clients are getting more for the money. Unfortunately, we’re not. In fact, it seems as though we are getting far less than we ever did, in terms of efficiency, accessibility and quality of adjudications.
Yesterday, due to lower than projected fee revenues, USCIS proposed a fee increase that will amount to an average increase of 10% across the board. USCIS will issue the formal proposal on Friday and there will be a 45 day comment period. This, in combination with the 66% fee increase that was implemented in 2007, constitutes a tremendous hit in the pocketbook for a variety of users of immigration services. For example, an I-130 petition for an alien relative will jump from $355 to $420, under this proposal, thus impacting those who want to be reunited with family members. An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40. Adjustment of status fees will increase by $55. Businesses will also bear some of the brunt, with I-140 petitions for immigrant workers increasing over $100, premium processing going up by $225 and a brand new fee of $6,230 to establish a Regional Center under the EB-5 program. And –perhaps the coup de grace—fees for filing I-290 Notices of Appeal will increase from $585 to $630, a $45 dollar increase that will allow us to continue to file appeals that take over 2 years to adjudicate and generally conclude with either a rubber stamping of the original decision, or as in a handful of recent AAO decisions, a tortured legal analysis resulting in increasingly restrictive interpretations of the law.
Why do these fee increases feel like a punch in the stomach to immigration practitioners? Because they come at a time when the quality of decision-making and the ability to correct even the simplest errors or address basic problems with USCIS are at an all-time low. A small sampling of the problems we have all experienced with alarming increased frequency over the past few years:
- Application of new extra-regulatory standards in case adjudication. Example: The bar for L-1B eligibility has been raised to such a high level that petitioners are virtually required to demonstrate either that the beneficiary possesses extraordinary ability or that the company would fold without the services of the beneficiary.
- Adjudication of issues not within the province of USCIS: Service Centers have issued RFE’s on I-140 immigrant visa petitions picking apart legitimate employer requirements on a labor certification that has already passed muster with DOL.
- A “pick and choose” attitude with respect to previously issued long-standing agency guidance. Example: Service Centers are now routinely issuing RFE’s on extensions of stay in a flagrant undermining of the Yates Readjudication memo which clearly discourages readjudication except in cases of material change or clear error.
- Lack of accessibility of agency officials and decision-makers. Example: With the exception of those who pay handsomely for the privilege of premium processing adjudication, access to an adjudicator or an administrator at a USCIS Service Center has become a thing of the past. Try getting a mistake in a priority date on a notice fixed. Try communicating with a Service Center when a beneficiary with a pending adjustment has become current due to the approval of an immigrant visa in a different preference classification. The new lockbox system –a system that in my view serves only the interests of efficiency without inspiring confidence in the security or quality of the processing of cases– has exacerbated that problem even further. An AILA member reported sending an e mail to the lockbox support e mail address complaining about an improper rejection of a case. The response requested the receipt number. It would be funny if things like this did not happen to all of us so frequently.
- Lack of predictability in decision-making: Example: The blow-back from the Neufeld memo’s redefinition of the employer-employee relationship for H-1B purposes. An employer who lawfully places H-1B employee at a client site over a long term can no longer tell the client whether that employee’s stay can be extended. And adjudicators are now artificially limiting periods of stay for H-1B workers based on unfounded presumptions regarding lack of future work. Another example: Service Center reliance on non-predecent AAO decision in case adjudication –to the point of parroting the language of those decisions in RFE’s and denials..
- Lack of respect for the role of counsel in various proceedings: Examples: Practitioners report that they are sometimes not copied on RFE’s, and that district offices from time to time have barred attorneys from accompanying their clients to adjustment interviews.
On a daily basis, these problems in the adjudicatory process hurt families, hard-working individuals who are trying to engage in the appropriate legal processes in order to remain here, large businesses trying to retain talent, and small businesses that want to make a go of it in the U.S. In one of the first stakeholder meetings he held, Director Mayorkas vowed to create a culture in which a benefit would be approved if there is no clear basis for denying it. Unfortunately in the field, the opposite seems to be occurring: adjudicators often seem to be searching for a basis to deny an otherwise approvable case. This has been a trend for several years—but the source of the problem is a mystery. Director Mayorkas stated that USCIS is closely reviewing the adjudicatory process to improve consistency and quality. But USCIS is going to have to dig deep, confront some difficult structural issues, and implement some massive, culture-changing fixes if the agency wants its products and services to be worthy of their new price tag. Until that happens, each time I attach a check to a filing, I’m afraid I won’t be able to shake off the phrase from the classic Dire Straits song that’s been going around in my head since the fee increases were announced: “Money for Nothing. . . .”