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ILRC Comment on USCIS Fee Rule

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ILRC Comment on USCIS Fee Rule SIDLEY AUSTIN LLP 1501 K STREET, N.W. WASHINGTON, D.C. 20005 +1 202 736 8000 +1 202 736 8711 FAX AMERICA • ASIA PACIFIC • EUROPE December 23, 2019 Samantha Deshommes Chief, Regulatory Coordination Division Office of Policy and Strategy U.S. Citizenship and Immigration Services Department of Homeland Security 20 Massachusetts Ave., NW Mailstop #2140 Washington, DC 20429-2140 Re: Proposed Rule – U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigrant Benefit Request Requirements, DHS Docket No. USCIS-2019-0010, RIN 1615-AC18, 84 Fed. Reg. 62,280 (Nov. 14, 2019); 84 Fed. Reg. 67,243 (Dec. 9, 2019) Dear Ms. Deshommes: The Immigrant Legal Resource Center (ILRC) submits this comment on the proposed rule issued by the U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigrant Benefit Request Requirements, DHS Docket No. USCIS-2019-0010, RIN 1615-AC18, 84 Fed. Reg. 62,280 (Nov. 14, 2019) (the November Proposal), 84 Fed. Reg. 67,243 (Dec. 9, 2019) (the December Proposal) (collectively, the Proposal). ILRC strongly opposes the Proposal and urges that it be withdrawn. Through this Proposal, USCIS seeks to increase fees dramatically for vital immigration benefits and services. If the proposed changes go into effect, people and their families will be priced out of citizenship, lawful permanent residency, work permits, asylum, Deferred Action for Childhood Arrivals (DACA), and more. The Proposal targets families, children, the elderly, victims of domestic violence and trafficking, the disabled, and individuals from African, Asian, Central and South American, or Muslim-majority nations, as well as the Caribbean and Mexico, particularly those with lower incomes. Because the fee increases will frustrate the substantive policies that the Immigration and Nationality Act (INA) is meant to promote, they are arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act. USCIS also proposed to administratively transfer over one hundred million dollars to another agency, Immigration and Customs Enforcement (ICE). The November Proposal sought to transfer $207,600,000 to ICE. Then, on December 9, USCIS changed this number to $112,287,417, based on new information, rationales, and calculations found nowhere in the Page -2- November Proposal. USCIS cites no statutory authorization for this unprecedented transfer, and there is none; the proposed transfer is the very example of a regulation that is “contrary to law” in violation of the Administrative Procedure Act. The December Proposal contained no new proposed fee amounts to account for the over $100 million change beyond a vague assertion that it would adjust the fee schedule. With no explanation for the rush, USCIS gave the public less than three weeks, until December 30, in the middle of the holiday season, to comment on both proposals. At a minimum, the Proposal should be re-noticed for a fair opportunity to provide notice and comment, with the actual fee levels that USCIS proposes to impose. ILRC ILRC is a national non-profit organization that works to advance immigrant rights through advocacy, educational materials, and legal trainings. ILRC’s mission is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. We serve the individuals and community of organizations that are most impacted by this rule. ILRC also leads the New Americans Campaign, a national non-partisan effort that brings together private philanthropic funders, leading national immigration and service organizations, and over two hundred local services providers across more than 20 different regions to help prospective Americans apply for U.S. citizenship. As the lead organization for the campaign, ILRC receives and re-grants substantial philanthropic dollars to local immigration service providers across the United States who help lawful permanent residents apply for naturalization. Our local partners have helped more than 435,000 permanent residents apply for naturalization; over 40% of the applications funded by the New Americans Campaign included a fee waiver. Introduction The Proposal includes a mix of unlawful appropriations, unprecedented fee hikes, and new barriers to accessing immigration benefits and services through USCIS. USCIS inexplicably allots itself a 54% higher budget than prior years, during a time that this Administration has emphasized tighter federal agency budgets. USCIS does not offer any alternatives based on a flat budget—the level to which virtually all other civilian agencies have been held under the current Administration. Nor does USCIS offer an alternative based on a budget increasing at the rate of inflation. Rather, USCIS offers without any explanation or justification a gigantic budget increase, and then calculates fee increases designed to fund this huge budget increase, although without accounting for the dramatic drop in applications that the fee increases are likely to cause. It achieves this astonishing budget increase through fee hikes that are essentially a tax, at a time that this Administration has emphasized easing the tax burden. The driver of the proposed fee hikes is the proposed transfer of $112,287,417 to ICE. Although the Immigration and Naturalization Act (INA) authorizes collecting funds only for Comments of the Immigrant Legal Resource Center Page -3- “providing immigration and naturalization services,” the Proposal explains it hopes to fund enforcement and denaturalization efforts—Operation Janus, the ICE Homeland Security Investigations (ICE) National Lead Development Center, and Document and Benefit Fraud Task Forces. This proposed transfer is not authorized by any statute and is contrary to law. The proposed rule imposes drastic fee hikes. USCIS would charge $5401 per person to seek asylum and employment authorization in the United States, without exceptions. No other country erects such a barrier to asylum seekers. Only three—including Iran—impose a fee at all, and even those countries permit exceptions. Similarly, USCIS proposes a new fee for DACA renewals, where previously there was no fee, while also charging for employment authorization; this would raise the cost of a DACA renewal, by creating a new fee and including additional fees, to $765. USCIS would “unbundle” filing fees for permanent residence applications, employment authorization, and travel document application, in effect doubling the cost for a green card to over $2,195. USCIS would require a biometric fee as an end-run around statutorily capped fees for Temporary Protected Status (TPS) applicants. USCIS also proposes to increase the cost of naturalization to $1,170 per person, regardless of age—an increase of 60%-83%. Meanwhile, USCIS would lower the fee for green card renewals. The combined effect of lower fees for green card renewals and higher fees for naturalization discourages lower-income immigrants from becoming citizens, with the benefits of increased governmental representation and employment opportunities. Contrary to years of agency interpretations of the INA, fee exemptions and waivers would also all but disappear under the Proposal. USCIS would end fee waivers that have made naturalization, green card renewals, and other benefits accessible to low income households. USCIS would narrow eligibility for fee waivers based on income for statutorily eligible populations: Violence Against Women Act (VAWA), U (crime victim), T (trafficked individuals), battered individuals, asylum applicants, and Temporary Protected Status (TPS) applicants.2 And USCIS would limit its own discretion to change its approach in the future contrary to the scope of discretion Congress granted. See, e.g., H.R. Rep. No. 89-745, at 1 The November Proposal specified fee amounts, but the December Proposal did not. Therefore, ILRC discusses the fee amounts identified in the November Proposal. ILRC’s arguments apply to weaknesses in the Proposal, and do not depend on the exact dollar number of a particular fee. Thus, in the event USCIS proposes or finalizes lower fees than those identified in the November Proposal, such proposal would not absolve USCIS of its duty to address the issues ILRC notes here. See Perez v. Mortg. Bankers Ass’n, 575 U.S. __, 135 S. Ct. 1199, 1203 (2015) (“An agency must consider and respond to significant comments received during the period for public comment.”). 2 As further discussed below, while the Proposal would stay within the statutory requirement of the TVPRA that the associated filings of VAWA, U, T, and TPS be allowed to apply for fee waivers, the new requirements for those fee waivers are punitive in cutting off eligibility for a fee waiver at a drastically lower income level, requiring more documentation, and not allowing an applicant’s receipt of means-tested benefit to render an applicant eligible for a fee waiver. These heightened standards will prevent many applicants from qualifying from the main benefit application because associated filings include applications for waivers of inadmissibility which must be approved in order to qualify for the primary benefit of VAWA, U, T and TPS. Comments of the Immigrant Legal Resource Center Page -4- 38 (1965) (recommending amending INA to give the Attorney General discretion to admit individuals otherwise inadmissible under other INA
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