On October 24, 2016 USCIS announced a final rule increasing fees for most immigration benefit requests. We wrote about this change while USCIS was accepting comments on the proposed rule, and submitted part of this post as a comment. In response to our comments, USCIS decided not to increase the fees for filing Form I-192 when this form is adjudicated by US Customs and Border Protection. Over 400 comments were received, and a very small percentage resulted in a change to the final rule.

We think that there is something to be learned from this outcome. Our comment may have accidentally hit on a legal requirement that each government agency must follow. The essence of our comment was that CBP, and not USCIS, adjudicates Form I-192 when filed by Canadians. Since the proposed rule is based on the cost burden to USCIS, the fees should not be increased when CBP is adjudicating the application. To our great surprise, USCIS agreed with this analysis.

Further research suggests that the law may prohibit raising fees without first proposing regulations and analyzing costs to the government. Under the Chief Financial Officers Act, each agency must maintain a financial management system that complies with the policies set by OMB. One such policy requires that fees be fair, based on cost to the government, and set by regulation. Since CBP’s cost of adjudicating Form I-192 was not analyzed in the proposed fee increase, USCIS may have been legally required to forego the increase in this situation.

The key takeaway here is that the agency is more likely to take a requested action if there is a legal basis, or requirement, for that action. Most of the submitted comments were some variation of “the fee increase is too high, and that places too great a burden on people requesting benefits.” Invariably, the agency’s response is some variation of “while we sympathize, our fee increase is based on our analysis of costs of adjudication and therefore we must increase the fees anyway.” To craft a more effective comment, we recommend reading the footnotes in the proposed rule, and reviewing every cited law, regulation, executive order, and OMB circular. These documents may contain the key to convincing the agency that they should act according to the request. Although this process involves significantly more effort than simply submitting a comment, the results are worth it.

On a closing note, part of USCIS’s response to our comment noted that we did not provide any statistics or analysis for our claim that every dollar spent on a waiver application is a dollar kept out of the local economy. Admittedly, such research was not included as part of our comment. In reply, we would like to cordially invite USCIS to our local Trader Joe’s parking lot on any given Saturday so that they can estimate the effect that Canadians have on our local economy.