By Alexandra N. Meyer

A new American Bar Association program aims to better prepare immigrants navigating one of America’s most time-consuming and expensive government systems. Unlike most government agencies, the U.S. Citizenship and Immigration Services, (“USCIS”), is fee-funded and relies almost exclusively on fees to operate.[1] In fact, service fees account for approximately 97 percent of the USCIS’s budget.[2] Last summer, the USCIS announced that it aimed to increase a number of immigration and naturalization benefit request fees by a weighted average of 20 percent.[3] The agency reasoned that “current fees do not recover the full cost of providing adjudication and naturalization services”[4] and would leave the agency underfunded by approximately $1 billion per year.[5] Luckily, after two preliminary injunctions preventing the implementation of the fee increases, the government filed a motion for voluntary dismissal of its appeal[6] of Immigrant Legal Research Center v. Wolf.[7]

Although fees not increasing (for the time being) is certainly something to celebrate, issues with the current fee-based system persist. The current fees for many of the most popular forms remain high.[8] For example, an I-485 “Application to Register Permanent Residence or Adjust Status” retains its $1,140 fee; an N-400 “Application for Naturalization” costs $640; and an N-600 “Application for Certificate of Citizenship” will set an individual back $1,170.[9] In addition, both the I-485 and N-400 forms require applicants to shell out an extra $85 for a biometrics fee.[10] Clearly, the costs of sending in even a single application can be incredibly high. These costs quickly multiply for families sending multiple forms—one for each family member—to the USCIS for processing.

To the USCIS’s credit, a fee-waiver program exists. However, the program is arguably inadequate, as the agency has narrowed eligibility and declined hundreds of thousands of applications for fee waivers.[11] At one time, nearly any form could be accompanied by a fee-waiver application. Unfortunately in 2007, the USCIS created a “limited list that prohibited two-thirds of the application types from the possibility of a fee waiver.”[12] In 2016, the USCIS approved more than 627,000 fee-waiver applications.[13] A year later, in 2017, the agency only approved 285,000 applications.[14]

Even if an applicant can afford the filing fees, the complexity of the forms may force additional, unanticipated costs. Theoretically, the USCIS lists the steps of the application process with instructions on how to fill out each form on its website, but in practice the website is difficult to navigate and understand, particularly for applicants who speak English as a second language.[15] Once an individual finds the correct form, they must fill it out correctly according to the USCIS’s standards—a task that seems designed to promote failure. For example, in recent years, the I-485 form has grown from six pages with an accompanying eight pages of instructions to twenty pages with forty-five pages of instructions.[16]

Forms also expire with little to no notice, only to be replaced with almost identical new forms.[17] Applications already mailed with the now obsolete form variants are rejected.[18] Furthermore, forms can be rejected or denied if any field is left blank, regardless of its applicability. For example, applications have been rejected for listing three siblings when there is space on the application for four or not including an address for a deceased parent.[19] Perhaps the most ridiculous reason for form rejection are typographical absurdities, like an applicant stating “NA” instead of “N/A” when a field is not applicable.[20]

Rejected applications not only serve to frustrate applicants, but add to the costs of immigration and naturalization. Rejections may not be appealed.[21] The applicant must resubmit a corrected form.[22] Every time an applicant submits a new form for review, the “USCIS requires new fees with any new benefit request,” even if the applicant is submitting the same form type with only minimal corrections.[23] The USCIS may even keep the rejected application fee.[24]

Hiring an immigration lawyer certainly helps to prevent issues that may arise during the application process. In fact, the nitpickiness of the USCIS has arguably made counsel a necessity. An immigration lawyer knows exactly what forms are applicable to a case and can help ensure that forms are properly completed according to the USCIS’s standards.[25] Although the thought of paying legal fees in addition to the USCIS’s form fees may deter some from seeking legal advice, the cost of legal fees are often comparable to the USCIS’s form fees.[26] Hiring an immigration attorney may even save the applicant money in the long run if the alternative is to resubmit rejected applications numerous times.[27]

Despite the benefits of hiring an immigration attorney to help with the immigration and naturalization process, reality is many individuals cannot afford form filing fees, let alone additional legal fees.[28] The American Bar Association’s online program, ABA Free Legal Answers, seeks to narrow this “justice gap.”[29] The service, which expanded to include immigration law in January 2021, allows users to ask volunteer attorneys legal questions regarding deportation, green cards, Deferred Action for Childhood Arrivals, (“DACA”), and naturalization.[30] Unfortunately, individuals can only ask up to three questions per year, but for someone previously unable to ask any questions, this is an improvement to the situation.[31] At first glance, it’s also difficult to ascertain the parameters of asking questions, but it seems unlikely that an individual can submit an entire form for review. Still, the program provides attorneys with the opportunity to remind applicants not to leave blank fields in their forms, or to use “N/A” instead of “NA,” however ridiculous that necessary advice may seem.


[1] USCIS Adjusts Fees to Help Meet Operational Needs, U.S. Citizenship & Immigr. Servs., (Jul. 31, 2020), https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs#:~:text=Unlike%20most%20government%20agencies%2C%20USCIS,97%25%20of%20USCIS’%20budget.

[2] Id.

[3] U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788, 46,788 (Aug. 3, 2020).

[4] Id.

[5] U.S. Citizenship & Immigr. Servs., supra note 1.

[6] Featured Issue: Changes to USCIS Fee Schedule, Am. Immigr. Laws. Ass’n (Jan. 29, 2021), https://www.aila.org/advo-media/issues/all/changes-to-uscis-fee-schedule.

[7] No. 20-CV-05883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020).

[8] See Most Common USCIS Immigration Forms, Nat’l Notary Ass’n, https://www.nationalnotary.org/immigration/knowledge-center/uscis-immigration-forms (last visited Feb. 12, 2021).

[9] Dep’t of Homeland Sec., U.S. Citizenship & Immigr. Servs., Form G-1055: Fee Schedule 4, 11 (2020), https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.

[10] Id.

[11] Juan Esteban Bedoya, Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee, 96 N.Y.U.L. Rev. 1022, 1027 (2020).

[12] Peggy Gleason and Melissa Rodgers, Status of USCIS Fee Waiver Changes–October 2, 2020, Immigrant Legal Res. Ctr., https://www.ilrc.org/sites/default/files/resources/pa_fee_waiver_10.9.20.pdf.

[13] Manuel Madrid, Border Wall or No, Immigrants Will Soon Have to Scale a Paywall, Am. Prospect (Jan. 23, 2019), https://prospect.org/civil-rights/border-wall-no-immigrants-will-soon-scale-paywall/.

[14] Id.

[15] See Filing Guidance, U.S. Citizenship & Immigr. Servs. (Oct. 25, 2019), https://www.uscis.gov/forms/filing-guidance.

[16] Catherine Rampell, Trump Didn’t Build His Border Wall with Steel. He Built It Out of Paper, Wash. Post (Oct. 29. 2020), https://www.washingtonpost.com/opinions/2020/10/29/trump-immigration-daca-family-separation/?arc404=true.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Chapter 6-Submitting Requests, U.S. Citizenship & Immigr. Servs. (Feb. 10, 2021), https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-6.

[22] Id.

[23] Id.

[24] Filing Fees, U.S. Citizenship & Immigr. Servs. (Feb. 1, 2021), https://www.uscis.gov/forms/filing-fees (select “Refund Policy” at the bottom of the webpage).

[25] Liz Daneu, Is an Immigration Lawyer Worth the Cost?, Alllaw.com, https://www.alllaw.com/articles/nolo/us-immigration/lawyer-worth-cost.html (last visited Feb. 12, 2021).

[26] Id.

[27] Id.

[28] See Farida Jhabvala Romero, Immigrants Seek Stability of U.S. Citizenship But Cost Is Often a Barrier,  KQED (Apr. 12, 2018), https://www.kqed.org/news/11660853/immigrants-seek-stability-of-u-s-citizenship-but-cost-is-often-a-barrier.

[29] Tali K. Albukerk, “ABA Free Legal Answers” Connects Clients and Pro Bono Attorneys Online, Am. Bar Ass’n (Apr. 13, 2020), https://businesslawtoday.org/2020/04/aba-free-legal-answers-connects-clients-pro-bono-attorneys-online/.

[30] Free Legal Answers Expands to Help Immigrants, Veterans, Am. Bar Ass’n (Jan. 25., 2021), https://www.americanbar.org/news/abanews/aba-news-archives/2021/01/free-legal-answers/.

[31] Id.

visa, approved, journey, template, service, tour, paperwork, visit, ticket, tourism, trip, international, immigration, sign, national, contract, permission, foreign, certificate, passport, business, hand, office, banner, paper, form, apply, application, document, authorization, embassy, agreement, text, product, logo, font, design, brand, graphic design, graphics, communication, illustration

Makenzie Taylor

Each year, 66,000 H-2B visa guest workers enter the United States to perform nonagricultural temporary and seasonal jobs[1] in industries such as forestry, landscaping, hospitality, seafood processing, and construction.[2] The workers typically perform “relatively low-skilled” jobs and often work in “geographic areas where the number of available U.S. workers is limited.”[3] They comprise less than 0.001% of total U.S. employment.[4]

Far from reducing job availability for U.S. workers, the H-2B program is essential to many smaller and seasonal businesses.[5] It “supplies a source of supplementary labor for [physically demanding] jobs that U.S. workers are unwilling to take.”[6] H-2B workers provide a “legal, stable and motivated work force,” allowing businesses to grow and create more jobs for Americans as well.[7] U.S. workers, though cheaper to hire, are not always available, interested, or dependable.[8]

By contrast, employers have reported that H-2B employees are consistently reliable and hard-working, and their productivity helps offset the cost of recruiting and hiring them.[9] H-2B employment also correlates with higher U.S. employment rates.[10] Without the program, many employers would go unstaffed, close their doors, and cause “lost income for American businesses, and lost tax revenues” for the States.[11]

The Problem

Despite these benefits, the program’s cumbersome nature discourages employer participation: “[T]he system [is] complicated, time-consuming, costly and inefficient.”[12] Petitioning employers must prove “[t]here are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.”[13] They must make “extensive efforts to recruit U.S. workers,” file documentation with four different government agencies, and foot the bill for guest workers’ visas and transportation costs.[14]

Once the 66,000 annual cap is reached, the U.S. Citizenship and Immigration Services (USCIS) stops accepting petitions and will not issue additional visas until the next year.[15] This means that even after expending significant time and money into the petition process, many employers fail to secure their necessary workforce and are in a worse position than before they applied. Even one small mistake in the “complicated application process can mean delayed approval or visas denied—both extremely costly for employers.”[16] The uncertainty involved in the petition process incentivizes employers to petition for more H-2B workers than they actually need, “just in case their business takes off or some of their workers quit after the quota is hit.”[17] Employers who do so, and whose petitions are approved, further decrease the likelihood of other employers receiving their necessary visas.

Employers may use the premium processing track to “expedite the adjudication of certain forms,” but doing so costs an additional fee of $1,500 per petition.[18] Employers are also financially responsible for guest workers’ roundtrip transportation to and from their home countries, daily meals and lodging, and for each “visa, visa processing, and other related fees.”[19] Finally, businesses often require consultants and lawyers to navigate the process, adding to their costs.[20]

Each employer individually shoulders the full financial burden of this process, because H-2B workers may not “switch employers during their visa terms.”[21] In order for a guest worker to continue working for a second employer after her original visa term ends, the putative secondary employer must file and receive approval for a petition “requesting classification and an extension of the alien’s stay in the United States.”[22] H-2B workers are required to leave the States at the end of their authorized period of stay,[23] so if the secondary petition has not yet been granted, the worker must travel home before turning around and returning to the States for the second job. This unnecessarily duplicative process only adds to employer cost and restricts the employees’ access to stable employment.

The Solution

Visa portability, whereby an H-2B worker may transfer her employment from one authorized employer to another without an intermediate petition process, is the best solution to this problem.[24] Portability would encourage cost-spreading, allowing employers to share in recruitment, visa, and transportation expenses for shared workforces. For example, Colorado’s Steamboat ski resort hires H-2B employees as dishwashers for its winter season, from late November to April.[25] Lindy’s Seafood in Maryland hires H-2B workers as crab pickers from April through December.[26] Visa portability would allow Steamboat to send its H-2B workers to Lindy’s at the end of the ski season for the start of Lindy’s crab-processing season, as long as both companies proved a seasonal need for temporary workers and were approved by USCIS. Steamboat and Lindy’s could share the costs of the visa petition and travel expenses and provide workers with a longer term of employment. This would increase efficiency and make H-2B employment more affordable—benefitting both the workers and U.S. businesses.

The Department of Labor has already set the stage for this change by allowing for broader dissemination of job offer information.[27] It has instructed that job orders may be stored as electronic records in an electronic job registry, resulting in a “complete, real-time record of job opportunities for which H-2B workers are sought.”[28] H-2B employers could use a similar system to match approved employers with available employees who are already in the States.[29] Additionally, requiring H-2B workers to fulfill their contract with the petitioning employer before accepting a new job would assuage any employer fears of H-2B workers jumping to new employers upon arrival.[30]

Conclusion

The H-2B visa program is an essential supplement to the U.S. workforce and economy, enabling small- and mid-size businesses to successfully perform seasonal and temporary operations in essential industries. Far from taking jobs away from U.S. workers, H-2B employees comprise a small segment of the workforce and their employment correlates with higher U.S. worker employment. In order to increase the program’s feasibility for businesses and ease its burden on both employers and foreign workers, the best solution is a policy of visa portability. This solution would increase efficiency, reduce costs, and provide more stable employment for a crucial segment of the workforce.

[1] H-2B Temporary Non-Agricultural Workers, USCIS (May 29, 2020), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers.

[2] Kati L. Griffith, United States: U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 Comp. Lab. L. & Pol’y J. 125, 135 (2009).

[3] Madeline Zavodny & Tamar Jacoby, The Economic Impact of H-2B Workers 4 (2010), https://www.uschamber.com/sites/default/files/documents/files/16102_LABR%2520H2BReport_LR.pdf.

[4] Id. at 23.

[5] Charles C. Mathes, Note, The Department of Labor’s Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801, 1814 (2012).

[6] Id.

[7] Zavodny & Jacoby, supra note 3, at 10.

[8] See id. (explanation by a forestry contractor that he has “hired dozens and dozens of American workers. Only a handful have ever shown up for work. Of those, we have never had one last more than two days.”).

[9] Zavodny & Jacoby, supra note 3, at 10.

[10] Id. at 2.

[11] Mathes, supra note 5, at 1813. See also Suzanne Monyak, Trump to Suspend New Work Visas Through 2020, Law360 (June 22, 2020, 3:37 PM), https://www.law360.com/articles/1285526/trump-to-suspend-new-work-visas-through-2020 (reporting that in June 2020, President Trump restricted visas to “free up 525,000 jobs for Americans,” but he exempted food supply and seafood industry H-2B workers, evidencing the U.S. economy’s need for these workers and demonstrating that they do not compete with U.S. workers for jobs).

[12] Zavodny & Jacoby, supra note 3, at 20.

[13] Forms: H-2A, H-2B, and H-3 Visa, USCIS (Dec. 1, 2020), https://www.uscis.gov/forms/explore-my-options/h-2a-h-2b-and-h-3-visa.

[14] Zavodny & Jacoby, supra note 3, at 2.

[15] Zavodny & Jacoby, supra note 3, at 6.

[16] Id. at 20.

[17] Id. at 21.

[18] Premium Processing Fee Increase Effective Oct. 19, 2020, USCIS (Oct. 16, 2020), https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020.

[19] Fact Sheet #78F: Inbound and Outbound Transportation Expenses, and Visa and Other Related Fees under the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2015), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78f.pdf.

[20] Zavodny & Jacoby, supra note 3, at 21. See also Griffith, supra note 2, at 136 (revealing the admission of some employers that “they opt out of the H-2 program entirely and hire undocumented workers because the ‘process is too expensive, taxing, and time-consuming’”).

[21] Griffith, supra note 2, at 135.

[22] 8 C.F.R. § 214.2 (h)(2)(i)(D) (2020).

[23] Fact Sheet #69: Requirements to Participate in the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2009), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs69.pdf.

[24] See Mathes, supra note 5, at 1812–13 (explaining that legislation was introduced in 2005 that allowed “temporary guestworkers to change employers without penalty,” but the bill was never voted on).

[25] Employment FAQ, Steamboat Ski & Resort Corp, https://www.steamboat.com/employment/faq (last visited Jan. 6, 2021).

[26] Job Opportunities, Lindy’s Seafood, Inc., https://www.lindysseafood.com/job-opportunities (last visited Jan. 6, 2021).

[27] Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg. 10038, 10128 (Feb. 21, 2012).

[28] Id.

[29] Mathes, supra note 5, at 1850.

[30] Id.