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The Advocates for Human Rights submitted comments to a proposed regulatory change by the Department of Homeland Security (DHS). In a rule published January 3, 2023, DHS proposes to adjust certain fees charged by U.S. Citizenship and Immigration Services (USCIS). 

The Advocates welcomes the opportunity to comment on the new fee rule. We first start by noting that there must be a change in DHS funding to ensure that USCIS functions are not improperly placed on the applicant while bloated detention and enforcement budgets, funded by Congress, pull USCIS resources such as asylum adjudicators to staff ramped-up border operations. While we recognize that the law restricts how USCIS funds its operations, The Advocates urges DHS to work with Congress to ensure fair funding. USCIS notes “full costs” must be covered, which includes personnel costs, physical overhead, consulting and other indirect costs, management/supervision, enforcement.

We further welcome the change back to the ability-to-pay approach. Immigration benefits cannot discriminate based on income or class. Individuals have the right to family unity, employment opportunities, and humanitarian protection regardless of class and other distinctions that often impact the ability to pay due to structural racism and inequities. The previously proposed policy would have ensured that individuals from higher income brackets were provided greater opportunities to access immigration benefits. Because of the structural racism and inequities in our systems, this would have had a multiplier effect of increasing racial disparities in our immigration system by disproportionately preferencing individuals who could pay, which would be more largely individuals from privileged racial backgrounds rather than historically disadvantaged BIPOC communities. The Advocates, therefore, supports the Department’s return to a more equitable ability-to-pay approach.

The Advocates thanks the Department for proposing fee exemptions that reflect the realities faced by victims of crime, trafficking, domestic violence and human rights violations. We applaud the Department for removing the previously proposed asylum fee, which would have made the U.S. one of only three nations to charge a fee for asylum protections and served only as an arbitrary deterrent to exercising one’s right to seek protection from persecution and torture. While we also welcome the reinstatement of fee waivers for a range of case types, The Advocates includes herein detailed recommendations on urgently needed clarifications and updates to the evidentiary standard for review of fee waivers which have arbitrarily and capriciously been adjudicated to bar access to benefits for a number of our clients over the past few years.

While The Advocates supports the humanitarian changes proposed in this rule, we urge the Department to ensure that costs do not pit one group against another. Significant increases in family-based visa applicants, for example, will impinge on the right of many to access family unity. And, increases in certain employment-based visa categories could result in employers turning to more exploitative practices to fill staffing needs or pass along the cost of increased visa processing to workers, putting that at risk of trafficking. Yet, the fee exemptions and waivers for humanitarian-based applications are urgently needed and reflect a fairer system in addition to reducing costs and administrative burden for USCIS processing fee waivers and appeals related to fee waiver denials.

The Advocates also notes that the regulation proposes changes that “may be necessary to implement the rule titled ‘Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.’” The Advocates has written a Comment in opposition to that rule. That rule would make changes to the asylum and CAT processing system that compromise the rights of asylum seekers and due process of law in exchange for suggested efficiencies to the US Government. To the extent that the instant fee rule makes changes to plan for the asylum rule, The Advocates notes its opposition to that rule.

Download the entire comment here.