The new Asylum Program Fee makes legal immigration less attractive

On Jan. 31, U.S. Citizenship and Immigration Services (USCIS) published a new final rule updating the fee schedule for immigration petitions, applications, and services. Although some fees will decrease, others will increase by more than double. The new Asylum Program Fee will be levied on employers to fund the costs of asylum processing instead of investing in addressing American labor demands and America’s future.

These fee increases are the result of years of USCIS funding shortfalls, in which the largely fee-funded agency has struggled to keep pace with growing costs. The changes set to take effect on April 1, 2024 are necessary to maintain and improve agency efficiency and productivity without burdening taxpayers. 

The Asylum Program Fee, however, will be levied on employers who are petitioning for foreign workers through programs like the H-2A, which supplements our farm workforce; the H-1B, a staple of the American tech industry; and the O-1 visa for those with extraordinary abilities (think: former Olympic athletes and Pulitzer prize winners). The fee will fund the processing and adjudication of asylum applications, which do not have a fee.

The totality of other fees once covered the costs of asylum adjudication, and the need for a separate ones only arose from the sheer scale of our asylum backlog. From the beginning of fiscal year 2021 through the end of fiscal year 2023, USCIS received over 756,000 asylum applications, up from less than 300,000 in the three years prior. This does not include the more than 2 million asylum applications filed with the Executive Office for Immigration Review (EOIR) from FY2021 to FY2023. 

Although there are many cases of legitimate asylum seekers fleeing violence and persecution, others use the backlogged process as a proxy for a legal pathway that allows them to seek economic opportunities in the U.S. We need an expansion of the legal immigration system that can accommodate the labor flows already occurring, not a fee that punishes the businesses that play by the rules.

Consider a farmer utilizing the H-2A temporary agricultural worker program. The U.S. Department of Agriculture estimates that 41 percent of crop farmworkers lack legal work authorization. Yet every year, farmers utilize the H-2A program to legally bring in the labor they need. Under the new fee schedule, the filing fee for a named H-2A beneficiary will increase from $460 to $1,090. Farmers must also pay for housing, transportation, and food. 

This is compounded by the steep increase in the Adverse Effect Wage Rate (AEWR) that sets the minimum wage for H-2A employees nearing $20 in some states. An additional $600 Asylum Program Fee makes it increasingly difficult for rural farmers with tight profit margins to employ legally authorized laborers. At that point, disregarding a worker’s lack of authorization may become an attractive option. 

Similarly, H-1B program costs will increase sharply. Premium processing, regularly utilized on over half of initial H-1B petitions, is set to increase slightly to $2,805. However, H-1B petitions are also subject to the $1,500 American Competitiveness and Workforce Improvement Act fee, the $500 Fraud Prevention and Detection Fee, and the $600 Asylum Program Fee. Now, the cost of a premium processed initial H-1B will be raised from $4,970 to $6,400 in April 2024. With the U.S. already losing valuable H-1B workers to Canada and other competitors, we risk additional losses by not focusing fees on retaining qualified workers and students and  upskilling the domestic workforce.

Fee increases and new fees may be necessary, but they should be reinvested strategically. The American Competitiveness and Workforce Improvement Act fee requires employers who cannot find qualified American workers to invest in creating a domestic talent pipeline that will reduce American dependence on foreign labor. Politicians can coalesce around expanding that fee because it allows them to address immediate labor needs within their districts while demonstrating a commitment to upskilling and training Americans for future labor needs. 

The Asylum Program Fee, on the other hand, does not help tackle our growing labor needs and may even alienate moderate voters who support some forms of legal immigration but worry about an overwhelmed border. It could turn some Americans against otherwise widely accepted employment programs because they will soon fund the asylum program, which is subject to much more public scrutiny.

The Asylum Program fee outsources the shortcomings of our legal immigration system to the same American employers who willingly jump through its hoops and comply with its laws, making them pay the price for decades of congressional inaction. Rather than looking forward and investing in America, we are using fees to cover a problem rooted in policy.

Cecilia Esterline is the Immigration Research Analyst at the Niskanen Center, a public policy organization that seeks to strengthen liberal democratic governance.