Does the Statue of Liberty have a price tag or is it simply a matter of giving USCIS the money it needs to keep the paperwork moving in a post-9/11 world? The answer to that will go a long way towards shaping the emerging debate over the proposed fee increase that USCIS announced this past Friday. For those who view any visa as a priceless benefit, or any immigrant as a potential terrorist, no amount is too high. On the other hand, and there always seems to be one, those who think we need or should have more immigration are naturally inclined to resist higher fees as unnecessary and vindictive, designed not to enhance the USCIS’ capacity to do its job but, rather, to make it more difficult for the poor and dispossessed to realize in full measure the promise of American life.

What is not in dispute is the sticker shock that comes with even a cursory reading of what the USCIS has in mind.  The cost of naturalization soars from $330 to $595 for adult applicants and from $355 to $460 for children, an 80% increase. The fee for a green card application zooms from $325 to $900, a 178% jump, although companion fees for travel and work authorization are waived. The husband or wife who will want to bring in a spouse will now have to pay almost twice as much.  The family who wants to become American citizens had better take out a second mortgage: the Migration Policy Institute calculates they would have to pay$1450 for their citizenship papers. The higher the fees, the less likely is it that poor people will have the cash to become American citizens. In 2000-2001, when it costs $225 for a naturalization application, 41% of eligible green card holders who had not yet naturalized had incomes below 200% of the poverty level; more recently, this had shrunk to just 28% with low incomes. The Migration Policy Institute estimates that “in 2002, there were about 8 million LPRs who were eligible but had not yet obtained citizenship.” It is hard to escape the conclusion that such a massive fee increase amounts to a de facto cap on naturalization.  

There is an issue of fundamental fairness at stake. The USCIS itself admits that, even with the higher fees, service would not improve until 2009. In effect, petitioners paying the fees now will not realize the promised benefits; these belong to those who come later. In effect, current petitioners are being asked to subsidize future efficiencies.  Anybody have a problem with that?

William Ramos, Washington director for the National Association of Latino Elected and Appointed Officials, decries the fee increase as “devastating to our communities.” That is why leading Congressional Democrats sent a letter last week to Dr. Emilio Gonzales, USCIS Director, cautioning that any fee increase should not be finalized until the House and Senate Judiciary Committees could hold hearings in order to “better understand the extraordinary circumstances that could justify such a massive increase.” At a time when America ’s international image could benefit from a face-lift, the message that the proposed fee schedule sends to the rest of the world is a somber one indeed:

With one hand, Lady Liberty lifts her lamp beside the golden door.
With the other, she roots around in an immigrant’s wallet, plucking
out bills...the proposed fees would become a means test for new
Americans , slamming the door on many people who desperately
want to be part of this country and have much to contribute

Who’s to blame? It would be tempting to condemn the USCIS as the gang that couldn’t shoot straight, the atavistic expression of a bumbling bureaucracy that never misses a chance to miss a chance. It would also be wrong. Almost alone among major federal agencies, the USCIS lives on what it kills. In 1988, Congress established the Immigration Examination Fee Account (IFEA). Since then, the fees dumped into IFEA fund immigration benefits.  Pursuant to Section 286(m) of the Immigration and Nationality Act, 8 USC 1356, the USCIS must recover the full cost of the services and programs that it provides. Moreover, the Chief Financial Officers Act of 1990 mandates that the USCIS bean counters put on their green eye shades every two years to determine if fee revisions are necessary or appropriate. The USCIS last conducted an in-depth examination of its fee structure in FY 1998, a fee structure that could not possibly take into account the whirlwind unleashed by 9/11/. The last fee increase on October 26, 2005 did nothing more than keep pace with inflation.  In January 2004, a Government Accountability Report concluded that fees were “not sufficient to fully fund CIS operations” and characterized the then current fee schedule as “based on an outdated fee study…”

While it is true that Congress has provided some cash infusion in recent years, this has been almost entirely devote to backlog reduction and administrative overhead, not to application processing. Ironically, IFEA was created and sold as a giant step forward, an attempt to provide the legacy INS with a secure revenue stream in the face of Congressional inaction: “At the time, “ notes the Migration Policy Institute, “the move to fee-funding was seen by the INS as a needed reform, as Congress had not reliably provided INS with sufficient funds to cover its application processing work.” Nor can it be said that the contemplated fee schedule is wholly without redeeming features. $40 out of every fee will be reserved for refugee and asylum services while some $32 out of all payments are to be set aside to support fee-exempt case processing. Perhaps most encouraging to business customers is the realization that, should the proposed fee approach see the light of day, premium processing dollars can now be used to underwrite major technology upgrades; if the USCIS is to survive, such fundamental infrastructure enhancements are the lifeline on which it must depend. The CIS admits as much “ Under the proposed fee schedule, premium processing revenues will be fully isolated from other revenues and devoted to the extra services provided  to premium processing customers and to broader investments in a new technology and business process platform to radically improve USCIS’ capabilities and service levels.”

Justifying a massive fee increase as a cordon sanitaire around premium processing raises the nagging but inevitable question of whether we should have such fees in the first place. Most large employers accept them as the cost of doing business. Why should the USCIS improve service when they can make a boat load of money by taking longer? Indeed, if things get bad enough, and they will, desperate employers will jump at the chance to pay more than $1000. When everyone expedites, what relevance does premium processing retain? The losers in this are not only the aliens and the employers who want to hire them, but everyone who works in the American economy and depends on it. Small companies just getting started, the ones who are the engine of job creation in an economy where the big boys are constantly trying to get lean and mean, are precisely the ones least able to afford the added $1000 surcharge. The utility of premium processing as an argument for higher fees would lose its rationale if the USCIS did not have to depend on fees to survive.^[15]

Where do we go from here?  Perhaps, how we end up depends, in no small measure, from where we begin. The issue one suspects is not whether the USCIS needs more money for clearly such is the case. Rather, the issue is what the proper use of use fees should be.  To the USCIS, it seems fair to say that higher fees used in the same way promises to be neither fiscally prudent nor philosophically justifiable. It is the antithesis of prudent stewardship to act in the future precisely as you have in the past but expect different results.  Yet, it seems no less fair to remind those on the other side that good intentions and high rhetoric are not an acceptable substitute for effective policy or efficient procedure. Now we can begin.

Consider the following but feel free to throw it aside and substitute something better:

1. Put a fence around IFEA- application fees should go for applications not for data security or basic infrastructure. A naturalization applicant who pays more should get more. If the entire nation benefits from an IBIS check or an FBI fingerprint clearance, then all of us should share in paying for these services. There is no reason why Congress does not fund common programs for the general welfare. This is an easy fix. Just modify Section 286(m) of the INA. The problem is not a lack of will or vision. This would not be the first time that Congress had to step in and correct a flawed financial model. In 2002, Congress did precisely that to breathe new life and relevance into the EB-5 immigrant investor visa to overcome a series of highly technical rulings by the Administrative Appeals Office. If Congress can rescue investors, it can lend the rest of us a helping hand.

Neither bad management nor immigration fraud is the root cause of our malaise. Congress needs to step up to the plate and decide what kind of an immigration system American wants and pay for it. If we, as a nation, are not willing to underwrite certain programs or services, then let us say so plainly without hesitancy or purpose of evasion. Let us not mask our lack of commitment in the guise of a higher application fee foisted on unknowing employers and unsuspecting aliens. At the very least, the bracing effect of such novel frankness would do all of us a world of good.

2. Just as illegal immigration must be punished, legal immigration should be rewarded and encouraged. How? If we believe in the value of citizenship, or the need for family unity, then promote such values by allowing all application fees in an N-400 or I-130 case to be deducted from federal income tax payments.   At the very least, even if the USCIS does not feel it can go this far, why is there no provision in the proposed rule for a fee waiver in either the N-400 or I-130 context? Beyond that, the low-income USC parent who wants to get a certificate of citizenship for his or her child also cannot request an N-600 fee waiver? Why, when these are precisely the kinds of meritorious cases that the USCIS should want folks to file?
3. If the USCIS finds that an alien qualifies as a person of extraordinary ability, or an outstanding researcher or someone whose talent promotes the national interest, then the USCIS should allow such person and his or her family to apply for adjustment of status free of charge. Why tax a green card application by someone whose continued presence is so valuable?
4. Congress should impose a cap on all fees with no fee increase to exceed the rate of inflation as measured by the annual rise in consumer price index.
5. Congress should impose a ceiling on the total payments in any green card case that any one family should be obligated to pay. This will not penalize parents for having children.  The Supreme Court has recognized a constitutional right to marry and any fee structure that favors small families over large one carries with it disturbing constitutional implications.
6. Premium processing subsidizes inefficiency and removes any incentive for improvement. Inevitably, this fee will rise and the waiting line for start-up employers and low-income families who cannot afford such facilitation payment will grow longer. Level the playing field. We all know that the USCIS pays attention to the premium processing cases while all other gather dust. Fine. Allow such petitioners to pay a down payment of the total application fee with the balance to be due upon final case adjudication. There is no reason why anyone should pay for a decision that never comes.

What did our mothers tell us when we were young? You get what you pay for? That should be the yardstick against which the USCIS proposed fee increase should be measured.

Endnotes

The proposed fee schedule can be found at http://www.regulations.gov . A complete description is set forth at 72 Fed.Reg. 4888-4915 (Fe. 1, 2007)

The Migration Policy Institute, “Immigration Fees in Context, “No. 15 (February 2007). The complete bulletin is on the MPI website: http://www.mpi.org (hereinafter cited as “MPI Report”).

Id.

  http://www.aila.org/content/fileviewer.aspx?docid=21536&linkid=155899

Suzanne Gamboa, “Big Increases in citizenship, other fees planned,” Dallas Morning News (Jan. 31, 2007).  http://www.dallasnews.com/sharedcontent/APStories/stories/D8N05DF01.html

The letter was signed by Sen. Patrick Leahy (D-VT) and Rep. John Conyers (D-MI) who chair the Senate and House Judiciary Committees as well as Sen. Edward Kennedy (D-MA) and Rep. Zoe Loefgren (D-CA) who preside over their respective Immigration sub-committees.

New York Times, “The Price of Citizenship” (Feb. 4, 2007).  http://select.nytimes.com/gst/abstract.html?res=FA0A13FB395B0C778CDDAB0894D
F404482&showabstract=1

31 USC 901-03. The Department of Homeland Security became subject to the CFO Act with the enactment of Public Law 108-330 on October 16, 2004.  Federal policy on the need to set fees at a level high enough to ensure full recovery for services rendered is also set forth by the Office of Management and Budget (OMB) Circular A-25, User Charges (Revised), section 6, 58 Fed. Reg. 38142(July 15, 1993)

General Accounting Office, Immigration Application Fees: Current Fees are Not Sufficient to Fund U.S. Citizenship and Services’ Operations (GAO-04-309R, Jan. 5, 2004) at 2.

MPI Report at 3.

Id at 4.

Id.

“Building An Immigration Service For the 21^st Century” Questions and Answers on USCIS Fee Adjustments no. 9 (Jan. 31, 2007). http://www.uscis.gov

Comments, 72 Fed. Reg. 4888, 4893-4894 ( Feb. 1, 2007)

  A more comprehensive critique of premium processing can be found at http://www.ilw.com/articles/2003,0307-endelman.shtm.

21^stst Century Department of Justice Appropriations Authorization Act, Pub.L. 107-273, 116 Stat. 1758 (2002). The relevant investor provisions can be found at Sections 11031-37. The conference committee report is H.R. Conf. Rep. No. 107- 685 ( 2002). A huge Thank You is owed to Steve Yale-Loehr who led the fight to overturn Matter of Izumi, 22 I&N Dec. 169, 19 Immigr. rep. B2-32 (Assoc. Comm’r, Examinations 1998) and companion cases whose purpose and effect was to read the EB-5 investor visa out of the INA.

Boddie v. Connecticut , 401 U.S. 371 (1971).  

© Copyright 2006 by Gary Endelman. All rights reserved.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.