New USCIS Asylum Program Fee –May A Beneficiary Pay The Fee On Behalf Of A Sponsoring Employer In A Form I-140 Context? – Work Visas

The U.S. Citizenship and Immigration Services (USCIS) will
increase its filing fees on April 1, 2024, for its various
applications and petitions used by the public to apply for U.S.
immigration benefits. In addition, there are some new fees that
USCIS will impose. One of the new fees that sponsoring employers
are required to pay is a $600.00 Asylum Program Fee.¹
(Note: The Asylum Program Fee is only $300.00 if the sponsoring
employer employs twenty-five or fewer employees. The Asylum Program
Fee for non-profit petitioners is $0.00.) This fee is required to
be paid by U.S. employers that file a Petition for a Nonimmigrant
Worker (Form I-129) or an Immigrant Petition for an Alien Worker
(Form I-140). While it is clear that a sponsoring U.S. employer may
not have a beneficiary pay the Asylum Program Fee in an H-1B
context, because U.S. Department of Labor (DOL) regulations
explicitly prohibit a beneficiary from paying any costs and fees
associated with the H-1B petition, it is not as completely clear as
to whether the beneficiary may pay the Asylum Program Fee on behalf
of the sponsoring U.S. employer in a Form I-140 context. Here are
some indicators that a beneficiary may pay the Asylum Program Fee
in Form I-140 context on behalf of the sponsoring U.S.
employer:

1. New filing fee rule does not explicitly forbid a Form
   I-140 beneficiary from paying the Asylum Program Fee:
   Unlike the DOL’s H-1B Labor Condition Application (LCA)
   regulations, or DOL’s PERM labor certification regulations,
   which explicitly forbid a beneficiary from paying any costs and
   fees associated with the processing of an H-1B petition or PERM
   labor application, the final filing fee rule does not explicitly
   prohibit the beneficiary of a Form I-140 from paying the Asylum
   Program Fee on behalf of the sponsoring U.S. employer. In addition,
   USCIS regulations that govern the Form I-140 petition process also
   do not explicitly forbid a beneficiary from paying the costs and
   fees. In addition, USCIS regulations that govern the Form I-140
   petition process do not explicitly forbid a beneficiary from paying
   the costs and fees. The fact that the final fee rule does not
   explicitly forbid a beneficiary from paying the Asylum Program Fee
   in a Form I-140 context suggests that the beneficiary may pay on
   behalf of the sponsoring U.S. employer.




2. USCIS has not answered the question as to whether a
   beneficiary may pay the Asylum Program Fee in a Form I-140 context
   to date, even when it has had the opportunity to answer this
   question: The USCIS Ombudsman’s Office held a webinar
   on February 29, 2024, to discuss the new filing fees that will take
   effect on April 1, 2024. During this webinar, USCIS did not answer
   the question as to whether a beneficiary may pay the Asylum Program
   Fee on behalf of a sponsoring U.S. employer. The American
   Immigration Lawyers’ Association (AILA) has raised this
   question with USCIS, as well; and USCIS has not responded
   with an answer as of this writing. In addition, at AILA’s
   Spring Conference held between March 21, 2024 and March 22, 2024,
   USCIS representatives had the opportunity to answer this question,
   but, again, chose not to. The fact this question has been posed to
   USCIS on several occasions, and USCIS has been silent suggests
   USCIS would prefer sponsoring employers pay the Asylum Program Fee.
   However, USCIS is not in a position to forbit a beneficiary from
   paying the Asylum Program Fee on behalf of a sponsoring U.S.
   employer in a Form I-140 context, because there is no authority
   that explicitly prohibits a beneficiary from doing this.




3. USCIS has indicated that a self-petitioner of an
   Employment-Based, First Preference (EB-1) Extraordinary Ability
   Alien Form I-140 or a self-petitioner in an Employment-Based,
   Second Preference (EB-2 (National Interest Waiver) Form I-140 is
   required to pay the Asylum Program Fee: USCIS has
   expressly indicated that the Asylum Program Fee is required to be
   paid by self-petitioners. Self-petitioners are considered to be
   both the petitioner and beneficiary. Since the USCIS requires the
   Asylum Program Fee to be paid in both an EB-1 (Extraordinary
   Ability Alien) and EB-2 NIW (Exceptional Alien – National
   Interest Waiver) Form I-140 context when there is a
   self-petitioner, this would suggest that a beneficiary in any type
   of Form I-140 context may pay the Asylum Program Fee on behalf of
   the petitioner.




4. USCIS has issued guidance in the past, which affirmed
   that a beneficiary may pay the costs and fees associated with the
   processing of a Form I-140 petition. On June 1, 2007,
   Donald Neufeld, Acting Associate Director, Domestic Operations with
   the USCIS, issued a policy memorandum entitled, “Interim
   Guidance Regarding the Impact of the Department of Labor’s
   (DOL) final rule on, Labor Certification for Permanent
   Employment of Aliens in the United States; Reducing the Incentives
   and Opportunities for Fraud and Abuse and Enhancing Program
   Integrity, on Determining Labor Certification Validity and the
   Prohibition of Labor Certification Substitution Requests” that
   indicated a beneficiary may pay the filing fees in
   connection with a Form I-140 petition. Page 3 of the policy
   memorandum also indicated the beneficiary may pay the legal fees
   for representation in connection with a Form I-140 petition. It
   is important to note that the policy memorandum issued on June 1,
   2007 did affirm that a foreign national beneficiary may not
   pay any of the costs and fees associated with an Application for
   Permanent Employment Certification (ETA Form 9089). Neufeld
   distinguished between those costs and fees associated with an ETA
   Form 9089 and those costs and fees associated with a Form I-140,
   and affirmed a beneficiary may pay the costs and fees associated
   with a Form I-140 petition, even if the Form I-140 petition is
   based on an ETA Form 9089. Based on this USCIS policy memorandum,
   an argument could be made that USCIS permits a beneficiary to pay
   the Asylum Program Fee on behalf of a sponsoring employer in a Form
   I-140 context. This policy memorandum also may show that USCIS does
   not regard the payment of the costs and fees associated with the
   Form I-140 petition by the beneficiary as somehow depressing the
   offered wage and/or prevailing wage that is listed on the ETA Form
   9089. As of this date, it does not appear that USCIS has issued any
   policy memoranda that has superseded the June 1, 2007 USCIS policy
   memorandum issued by Mr. Neufeld with respect to the ability of a
   beneficiary to pay the costs and fees of a Form I-140 petition on
   behalf of the petitioner.

The new USCIS filing fees, including the Asylum Program Fee,
will take effect on April 1, 2024, unless the U.S. District Court
issues an injunction (see footnote 1). U.S. employers who are
interested in filing Form I-140 petitions on behalf of foreign
nationals will need to decide quickly as to whether to have a
beneficiary pay the Asylum Program Fee on their behalf or not. It
is hoped that the above information will provide some insight or
assistance to help guide U.S. employers in their decision making.
In time, USCIS may provide definitive guidance as to whether a
beneficiary may pay the Asylum Program Fee in a Form I-140 context.
Some employers may choose to take a conservative approach and not
have the beneficiary pay the Asylum Program fee on their behalf.
Others may choose not to wait and do the opposite, given the
government’s silence and that which is stated above. It is also
possible that if the government continues to remain silent, and as
more Form I-140 petitions are filed and processed by USCIS, with
U.S. employers reporting no issues in having the beneficiary pay
the Asylum Program Fee on their behalf, more U.S. employers may
follow suit.

Footnote

1. On March 19, 2024, a lawsuit was filed
in U.S District Court that challenges the USCIS final fee rule. The
plaintiffs (ITServe Alliance and an EB-5 investor) contend that the
final rule arbitrarily imposes the Asylum Program Fee in excess of
the USCIS’s statutory authority. Although the plaintiffs have
requested that the court provide injunctive relief, as of this
writing the fee rule is still in effect. See: S. Anderson.
“Immigration Lawsuit Filed to Block USCIS Fee Rule.”
Forbes, March 20, 2024: https://www.forbes.com/sites/stuartanderson/2024/03/20/immigration-lawsuit-filed-to-block-uscis-fee-rule/?sh=27b15fba7449

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