Date: Oct 06, 2020

Last week, a federal judge granted a motion for a preliminary injunction blocking the U.S. Citizenship and Immigration Services (USCIS) from moving forward with its rule imposing a new fee schedule. The USCIS had issued a rule that could dramatically increase fees on employers that use the H-2A program, among other immigration-based programs. The fees were scheduled to go into effect on October 2, 2020.

As previously reported here, the rule would reduce the fee for petitions for unnamed workers from $460 to $415. However, for named petitions which are typically used for H-2A extensions and transfers of H-2A workers to other temporary labor certifications, the fee would jump 85% to $850 per petition. It would also limit the number of workers listed in the petition to 25, requiring many employers to file multiple $850 petitions for the same job order.

 In issuing the injunction, District Court Judge Jeffrey S. White, in the Northern District of California, found that the “Plaintiffs have met their burden to show they are likely to succeed on their claim that Mr. McAleenan and Mr. Wolf were not lawfully serving under the HSA (Homeland Security Act),” wrote Judge White. “Defendants conceded at the hearing that if this Court rejects their arguments on this issue, which it does, the Final Rule would have been promulgated without lawful authority.” A federal judge in Maryland had ruled last month that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security and former acting Homeland Security Secretary Kevin McAleenan's appointment was invalid under the agency's applicable order of succession.

Judge White also ruled that the USCIS fee rule likely violates procedural and substantive requirements of the Administrative Procedure Act and that USCIS probably failed to consider important aspects, such as the negative impact the rule will have on low-income immigrant populations.

The USCIS will likely appeal the decision. For now, the pre-existing rule schedule for USCIS petitions remains unchanged.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel

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