On April 1, 2024, the new U.S. Citizenship and Immigration Services (USCIS) fee schedule took effect. The fee schedule has been modified since publication, which can make determining the appropriate fee challenging.    Please refer to our previous blog post regarding the key takeaways from the final rule implementing these fee increases. The new rule increases both the I-485 adjustment of status (AOS) filing fee and unbundles the fees for work (I-765) and travel authorization (I-131) interim benefits. If requesting work and travel authorization along with the I-485, the total fee has increased from $1,225.00 to $2,330.00, a 90 % jump.

In addition to the nearly across-the-board fee increases levied on employers, one major change in the new rule is the unbundling of the adjustment of status (AOS) filing fees from those for interim benefit requests tied to a pending AOS application. Previously, USCIS included the filing fees for AOS-based (C09) employment authorization documents (EADs) and advance parole for travel (AP) with the filing fee for the AOS application. A single fee was required for the three forms. USCIS now requires separate fees for Form I-765 (Application for Employment Authorization), I-131 (Application for Travel Document), and I-485 (Application to Register Permanent Residence or Adjust Status). This change leaves employers—or employees if covering these fees independently, with the choice of whether to file the I-765 and/or I-131 at all.

What are the old and new fees?

Therefore, an employer (or employee) considering costs will want to carefully evaluate whether filing the I-765 and/or I-131 is necessary to ensure work and travel authorization during the AOS process. At the same time, the employer should consider establishing a policy to be applied consistently in terms of what fees it will and will not cover (and for whom) in order to avoid potential allegations of discrimination in its employment practices.

Who needs work and travel authorization while the AOS application is pending?

Individuals in H or L Status

Individuals in lawful H-1 or L-1 status, along with their H-4 or L-2 dependents, may travel outside of the United States without abandoning their AOS applications, as long as i) they remain eligible for H or L status upon return, ii) are coming to resume work with the same employer, and iii) have a valid H or L visa (if required). Therefore, generally, those maintaining their H-1 or L-1 status are not required to apply for travel authorization to engage in international travel.

In terms of work authorization, it is typically advisable for individuals in H-1 or L-1 status to maintain their underlying work authorization when possible. However, there may be instances where maintaining H-1 or L-1 status is not possible. For example, an individual in L-1 status may be approaching their 7-year or 5-year maximum period of stay and require the EAD to avoid a gap in work authorization. Additionally, an employer may face an H-1B prevailing wage issue due to a surge in salary requirements for a specific occupation and location, preventing the filing of an H-1B extension. Therefore, while it may not be necessary to apply for EADs in most of these cases, each situation should be evaluated individually to determine if there are any extenuating circumstances that might necessitate filing an EAD application. Given that the cost of the EAD is not prohibitively high, employers considering a policy as to payment of the new fees may want to evaluate covering the $260 I-765 fee, if not for all dependent family members, at least for the employee.

All Other AOS Applicants in Nonimmigrant Status

 All other employment-based applicants must obtain advance parole before departing the United States (U.S.). Departing the U.S. before parole is granted will result in the abandonment of the AOS application.

While it is sometimes possible to extend the underlying nonimmigrant status while the AOS application is pending, due to the lack of explicit dual intent for nonimmigrant classifications other than H-1 or L-1, it is generally advisable to apply for work authorization as well.

If an employee holds nonimmigrant status valid for an extended period (e.g., TN status valid for the next three years), it may not be necessary to file for work authorization, as the pending AOS application does not void the underlying status. Nonimmigrant status expiration documents should be carefully monitored, however, to ensure there is enough time to secure an EAD before the nonimmigrant status expires.

When might it be useful to have work and travel authorization, even if not explicitly required?

 Some individuals may wish to apply for work and/or travel authorization for personal reasons. For instance, a teenage child may want to apply for an EAD to work. An EAD may also facilitate driver’s license extensions or permit the issuance of a driver’s license for a longer term. EADs also allow certain dependents who would not otherwise be eligible to obtain Social Security numbers to apply for one.

With regard to travel, although individuals in H-1 or L-1 status may renew their nonimmigrant visas for international travel while the AOS is pending, some may prefer the convenience of advance parole/travel authorization (AP). For example, they may not have time to apply for a visa if the planned travel lasts only a few days, applying for a visa may require additional travel to a location with a U.S. consulate, or they may have a history of being subjected to administrative processing when applying for a nonimmigrant reason. It is important to note that if an individual travels outside of the U.S. after filing the AP application but before it is issued, the AP application will be deemed abandoned and denied based on the departure from the U.S.

Are there any other practical considerations?

Many employers who cover AOS fees on behalf of their employees will no longer pay the EAD or AP fees unless legally necessary, deferring the decision and cost to employees. Recent USCIS policy changes now require that any request, petition, or application submitted in the same “package” be paid by the same method (check, money order, or credit card). There have been instances where USCIS has rejected entire AOS bundled filings because the employee chose to cover the EAD or AP fee and paid the fee using a different method than the employer. While we believe this to be an erroneous basis for rejection, the USCIS policy is unclear. It is, therefore, advisable to pay for all fees using the same method of payment.

Conclusion

The unbundling of AOS filing fees from those for interim benefits associated with the AOS process adds another layer of complexity. By carefully assessing each case and understanding the nuances of when these benefits are necessary or merely convenient, stakeholders can make informed decisions that balance legal requirements with financial considerations. As the immigration landscape continues to evolve, staying informed and proactive will be key to ensuring smooth transitions and minimizing potential disruptions.

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