It’s Been a Week Since the 9th Circuit Issued an Injunction on the USCIS Final Fee Rule… Now What?

Guest blogger: Johanna Vega Contreras, law student, University of San Franciso:

In August 02 of this year United States Citizenship and Immigration Services, a branch of the Department of Homeland Security, announced their Final Fee Rule. This Fee Rule was set to go into effect on October 2, 2020 and would increase some application fees by up to 383%, eliminate fee waivers, limit the number of beneficiaries for some forms, and institute longer processing times.[1] Some of the most notable changes under the Fee Rule would have been the 81% increase for naturalization, the new $50 fee for asylum, and the elimination of fee waivers. The USCIS submitted the Fee Rule as a final rule on August 03, 2020 in the Federal Register.

The DHS in part cited the economic effects of the COVID-19 pandemic in its decision to increase fees. DHS is funded entirely by fees that petitioners and applicants pay for services and forms. According to the DHS, their revenue decreased drastically given the decline in applications during the pandemic. As a result, the DHS took to dramatic increase in fees to offset their losses in revenue in an attempt to maintain the operation of their services.

The dramatic fee increases presented by the Fee Rule shocked many immigration-rights advocates as well as many immigrants that were set to be heavily impacted by the sudden increase in fees. Legal permanent residents like Diana Garcia Hernandez, were forced to dip into their already depleted savings to cover the cost of the N-400 Application for Naturalization which was set to increase by 81% from $640 to $1,160.[2] Hernandez, who is 24 years old and already struggling financially due to the economic difficulties brought on by COVID-19, struggled to get all of the money and required documents to apply for her citizenship application while also juggling being a single mother of two. Hernandez’s story is one among many of those who were set to be impacted by the Fee Rule.

Immigrant rights advocated argued that the fee increases, abolishment of fee waivers, and newly instated fees for asylum applicants all reflected very clear anti-immigrant sentiment. Such a dramatic fee increase would have placed immigrants, who were already struggling economically in the midst of a global pandemic, in an even more economically stressful situation. Some even argued that new measures under the Fee Rule were meant to effectively discourage applicants form filing for immigration services, adjustment of status, or immigration relief.

On September 29, 2001, two days before the final fee rule was set to go into effect, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California issued a preliminary injunction enjoining the fee increases in the case Immigrant Legal Resource Center, et al. v. Chad F. Wolfe et al. This preliminary injunction is effective nation-wide and prevents USCIS from charging anything other than what the pre-fee rule fees are for its immigration services and applications.[3] In his decision, Judge White cited four main factors that resulted in him issuing the nationwide preliminary injunction.[4]

Firstly, Plaintiffs met their burden to demonstrate a likelihood of success on the merits on their claim the Final Rule would have been issued without sound legal authority because acting secretary of DHS, Chad Wolf, might not have been lawfully serving under the Homeland Security Act. Secondly, Plaintiffs met their burden in establishing that the sharp increase in fees in the Final Rule violated procedures and substantive requirement in the Administrative Procedures Act. Thirdly, Judge White found that the DHS had failed to consider the negative effects of the Final Rule on low-income immigrant populations that would have been severely impacted by the steep fee increases.  Fourthly, Judge White found that the Trump administration, the USCIS, and the DHS, failed to explain their departure from procedure. Namely, there was not a sound explanation for the increase and fees and the simultaneous elimination of fee waivers and instatement of asylum application fees. In their totality, these four grounds weighed in favor of the Plaintiffs to establish that the public interest favored the injunction.

While the preliminary injunction certainly led to a sigh of relief to many immigrants, prospective citizens, and other applicants, the looming question remains: What should one expect following the issuing of the preliminary injunction?

In the meantime, applicants can still file without the fee increases and adjustments stated in the Fee Rule until the injunction is lifted or a final decision in the case is issued through litigation.

The DHS is expected to file for a stay of the injunction with the Ninth Circuit Court of Appeals, although exactly when this will be still remains unknown.[5] USCIS Deputy Director of Policy Joseph Edlow issued an official statement following the injunction wherein he stated that the Fee Rule was necessary given that USCIS is fee funded, and that the preliminary injunction was both harmful to the Department and to the American people.[6] Given the uncertainty of the timing of when everything is set to unfold, the general recommendation by immigration attorneys and immigrant rights groups and organizations is that foreign nationals, immigrants, residents, and applicants file their necessary forms as soon as possible to avoid potential fee increases in the near future.

[1] The Federal Register. U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements. https://www.federalregister.gov/documents/2020/08/03/2020-16389/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

[2] Chicago Sun Times. Immigrants rush to submit citizenship applications day before fee is set to soar. https://chicago.suntimes.com/2020/9/24/21450833/chicago-immigration-uscis-fees-naturalization-increase

[3] The National Law Review. Federal Judge Blocks USCIS Immigration Fee Increase. https://www.natlawreview.com/article/federal-judge-blocks-uscis-immigration-fee-increases

[4] Forbes. Judge Blocks USCIS Fee Increases: Here’s Why it Happened. https://www.forbes.com/sites/stuartanderson/2020/09/30/judge-blocks-uscis-fee-increases-heres-why-it-happened/#4b8f9391583a

[5] The National Law Review. USCIS Fee Increase Blocked by California Federal Judge. https://www.natlawreview.com/article/uscis-fee-increase-blocked-california-federal-judge

[6] U.S. Citizenship and Immigration Services. USCIS Response to Preliminary Injunction of Fee Rule. https://www.uscis.gov/news/news-releases/uscis-response-to-preliminary-injunction-of-fee-rule

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