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Court Enjoins USCIS Fee Increase Rule Due to Take Effect October 2, 2020

20:14 30 September in News Updates
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On September 29, 2020, a California federal judge granted a motion for preliminary injunction, barring U.S. Citizenship and Immigration Services (USCIS) from increasing filing fees for immigration benefits two days before the rule was to take effect.

The court based its holding on the following:  That acting Homeland Security Chief Chad Wolf was likely improperly appointed; the Final Rule violates some procedural and substantive requirements of the Administrative Procedures Act; the Department of Homeland Security failed to consider important aspects of the problem; the Trump administration did not explain its shift in policy; and that by charging a fee for asylum to deter frivolous applications, USCIS was relying on factors that Congress did not intend DHS to consider.   As a result, the court found the plaintiffs were likely to succeed on the merits of the case, and granted the injunction.

Court Order:  “Pursuant to 5 U.S.C. section 705 the Court STAYS implementation and the effective date of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.”      Immigrant Legal Resource Center et al. v. Wolf et al., case number 4:20-cv-05883, in the U.S. District Court for the Northern District of California.

What does this mean?  

It is likely that the government will seek a stay of the injunction from the 9th Circuit Court (non-legalese:  request that they be allowed to proceed with the fee increase).   We do not know when that may occur or whether the court would grant the request.

In the meantime, all filing fee and procedural changes which were due to take effect on Friday, October 2, 2020 are suspended until further notice.  For a summary of those now suspended changes, please see the LAC Legal Update:  USCIS to Increase Many Filing Fees Effective October 2, 2020

The filing fee required for each case will depend on case type and the status of the litigation on any particular day.   We will do our best to advise clients of changes right away and adjust invoices accordingly.   Please be assured that all filing fees are retained in the Client Trust Account until utilized for filing with USCIS.   Any required adjustments will be timely made.  Given the litigation, please be advised that we may see back and forth on the filing fee requirements.  We thank clients in advance for their flexibility and understanding.  We understand these frequent changes present budgeting and accounting challenges and will do all we can to assist.

Any questions, please contact your LAC attorney.

Additional resources:

https://www.forbes.com/sites/stuartanderson/2020/09/30/judge-blocks-uscis-fee-increases-heres-why-it-happened/

USCIS final rule

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This update was prepared by Fausta M. Albi, Partner, Larrabee Albi Coker LLP.

Legal Disclaimer:   This e-blast is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.  Immigration laws and policies change frequently, often without notice.  It is therefore important to seek direct legal counsel based upon individual circumstances.

 

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