Immigration News
September 2023 Fee Updates for Immigration Petitions
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Which USCIS fees are relevant to O-1 petitions
USCIS charges a base filing fee for Form I-129, the Petition for Nonimmigrant Worker that covers O-1 petitions, along with several supplemental fees that depend on the employer's characteristics and the nature of the petition. The base I-129 filing fee applies to all petitions, but additional fees—including the asylum program fee introduced under recent fee rules—apply based on employer size and petition type. USCIS periodically adjusts its fee schedule through the notice-and-comment rulemaking process under the Administrative Procedure Act, and practitioners must verify the current fee schedule on the USCIS Forms page before filing any petition because submitting an incorrect fee amount results in rejection of the filing.
The USCIS fee schedule applicable to O-1 petitions includes fees for the base I-129 petition, optional premium processing under Form I-907, and in some cases, biometrics fees for accompanying O-3 dependent derivative beneficiaries who are filing Form I-539 or I-539A to request O-3 status. The H-1B training fee and the additional fee for large employers do not apply to O-1 petitions—these are H-1B specific fees established under specific statutory provisions that do not reference O-1 petitions. Employers who are accustomed to H-1B fee structures sometimes assume incorrectly that those fees apply to O-1 petitions, which can lead to overcharging or under-budgeting for O-1 petition costs.
Petitioners should also account for the State Department fees associated with O-1 visa stamp issuance when the beneficiary requires a visa for entry or reentry. The machine-readable visa (MRV) fee is charged by the US consulate at which the beneficiary applies for the visa stamp, and this fee is separate from all USCIS petition fees. The MRV fee amount varies by country under reciprocity agreements and is distinct from the USCIS petition process. Beneficiaries who are currently inside the United States and who are changing status from a different nonimmigrant category do not need a visa stamp and therefore do not pay the MRV fee, but those who travel internationally and need to obtain or renew their visa stamp will incur this additional cost.
The asylum program fee and its applicability to O-1 petitions
USCIS has proposed and implemented various surcharge fees at different points in its fee rulemaking history to fund programs that are not self-sustaining through applicant fees alone. One such fee is an asylum program fee that has been included in USCIS fee rules to fund asylum processing, which is not financed by applicant fees because asylum applicants do not pay a filing fee. This surcharge may apply to certain employer-filed petitions including Form I-129 filings, and the applicability of the fee to O-1 petitions depends on the specific rule in effect at the time of filing. Employers should verify the current fee rules and whether the asylum program fee or any equivalent surcharge applies to their specific petition before calculating the total fee due.
Small employers and nonprofit organizations may be exempt from certain supplemental fees or may pay reduced fees under specific fee rules. USCIS defines small employers for fee purposes based on employee count thresholds specified in the applicable fee rule, and nonprofit organizations with appropriate IRS determination letters may qualify for separate exemption categories. Employers who believe they qualify for a fee exemption or reduced fee must verify their eligibility under the current rules, complete any required certifications on the petition forms, and ensure that the fee submitted corresponds to the exemption category claimed. Submitting the wrong fee—whether by oversubmitting or undersubmitting—creates processing complications.
USCIS fee rule litigation has created uncertainty in certain periods about which fee rules are in effect and which fees are legally required. Employers filing O-1 petitions during periods of fee rule litigation should consult with immigration counsel who is tracking the current legal status of the applicable fee schedule. Filing with the wrong fees during a period of fee rule uncertainty—particularly if a court has enjoined a new fee rule while litigation proceeds—can result in rejection of the petition at a critical time. Counsel familiar with the current litigation landscape can advise on which fee schedule is operative at the time of filing.
Premium processing fees for O-1 petitions
The premium processing fee under Form I-907 is adjusted by USCIS periodically and is indexed to inflation through provisions in the Immigration and Nationality Act as amended. The current premium processing fee for Form I-129 petitions should be verified on the USCIS website before filing because submitting the previous year's fee when a new fee has taken effect results in rejection of the I-907. USCIS typically provides advance notice of fee changes through its website and the Federal Register, but practitioners who file infrequently may miss announcements. Counsel who regularly file O-1 petitions typically maintain current fee tracking as part of their practice management.
Premium processing fees are nonrefundable if the petition is withdrawn after USCIS has accepted the I-907, and they are nonrefundable if the petition is denied. The fee is refunded only if USCIS fails to take action within the 15-business-day guarantee period—in which case USCIS returns the premium processing fee but continues to process the petition. Petitioners who are considering whether to use premium processing should account for the nonrefundable nature of the fee in their cost-benefit analysis: if the petition is denied and must be refiled, the premium processing fee for the first filing is lost and a new premium processing fee applies to the refiling.
Some employers establish internal budget codes that separately track premium processing fees from base filing fees because premium processing is often an optional expense that requires manager approval, while the base filing fee is a non-discretionary cost of sponsoring an O-1 beneficiary. Separating these cost categories in internal financial tracking helps employers make consistent, policy-driven decisions about when premium processing is used and when standard processing is acceptable. Employers who use premium processing for all O-1 petitions as a matter of policy should evaluate whether that policy is actually necessary for their workforce planning needs, since premium processing for petitions with distant start dates provides no operational benefit beyond the base case of paying for certainty that is not actually needed.
Fee exemptions and waivers applicable to O-1 petitions
Certain O-1 petitioners may qualify for fee exemptions under specific regulatory provisions. Nonprofit petitioners with IRS determinations as 501(c)(3) organizations may be exempt from certain supplemental fees that apply to for-profit employers, though the base I-129 filing fee generally applies to all petitioner types. The specific fee exemptions available to nonprofit petitioners depend on the applicable fee rule, which can change with each USCIS fee rulemaking. USCIS publishes guidance on nonprofit fee eligibility in its forms instructions and policy guidance, and petitioners claiming nonprofit exemptions should retain documentation of their tax-exempt status to submit with the petition.
Research institutions, universities, and hospitals affiliated with academic medicine programs often qualify for nonprofit fee exemptions and may also benefit from cap exemptions that apply to H-1B petitions—though cap exemptions are H-1B specific and do not apply to O-1 petitions. For O-1 purposes, what matters is whether the petitioner qualifies for the fee exemptions available to nonprofit or government employers under the applicable fee rule. USCIS periodically issues policy memoranda clarifying the scope of fee exemptions for different employer types, and practitioners should verify current guidance on employer-specific exemptions before reducing fees in a petition.
Fee waivers are generally not available for employer-sponsored O-1 petitions. Fee waivers are available for certain humanitarian immigration benefits—such as asylum applications, VAWA petitions, and T and U visa applications—but not for employment-based petitions filed by employers on behalf of beneficiaries who are seeking to work in the United States. The fee waiver provisions at 8 C.F.R. § 103.7(c) (or their current equivalents under the applicable fee rule) require demonstration that the petitioner is unable to pay the filing fee, and this standard is not easily met by employers sponsoring O-1 beneficiaries for employment. If a petitioner believes an unusual circumstance justifies a fee waiver request, immigration counsel should evaluate that claim carefully before submitting it, since a denied fee waiver request can delay the overall petition timeline.
State Department fees for O-1 visa stamp issuance
The O-1 visa stamp is issued by a US consulate after the I-129 petition has been approved by USCIS, and the State Department charges a machine-readable visa (MRV) fee for the visa application at the consulate. This fee is paid directly to the consulate or through the Department of State's designated payment system for the country where the application is being made and is separate from all USCIS fees. The MRV fee is a visa issuance fee, not a petition fee—it covers the cost of processing the visa application and issuing the stamp, not the adjudication of the underlying O-1 classification, which USCIS has already approved.
Reciprocity fees are an additional State Department cost that applies to nationals of certain countries under bilateral reciprocity agreements. When the United States charges nationals of another country a fee for visa issuance, that country may impose a reciprocal fee on US nationals seeking visas to that country. This reciprocity principle means that the total cost of obtaining an O-1 visa stamp varies by the applicant's nationality. Nationals of countries with no reciprocity agreements pay only the base MRV fee, while nationals of countries with reciprocity agreements pay the MRV fee plus the reciprocity fee, which can vary significantly by country and visa category.
Dependents of O-1 beneficiaries who seek O-3 derivative status also pay State Department fees if they require visa stamps—each family member in O-3 status who is applying for a visa pays the applicable MRV fee and any applicable reciprocity fee for their nationality. For families with multiple children, the total State Department fee cost for visa stamps can be substantial, and employers or beneficiaries who are budgeting for the O-1 process should account for dependent visa fees in addition to the principal beneficiary's fees. Dependents who are already in the United States in a different status and who are changing status to O-3 through USCIS file Form I-539 or I-539A and pay the applicable USCIS filing fee without incurring State Department fees.
How to account for filing fees in O-1 petition budget planning
O-1 petition budget planning should account for the full range of potential fees across the petition lifecycle: base filing fees, any applicable supplemental fees (asylum program fee or equivalent), optional premium processing fees, attorney fees for petition preparation and filing, and State Department fees for visa stamp issuance if applicable. For a simple O-1 petition without premium processing, the USCIS fees alone can range from several hundred to over a thousand dollars depending on employer size and applicable fee rules. Premium processing adds a substantial additional amount. Attorney fees for full-service preparation and filing by experienced O-1 counsel add further to the total cost.
Employers who sponsor multiple O-1 beneficiaries annually should develop internal fee tracking systems that capture actual USCIS fees paid by petition type and year, enabling accurate budgeting for future periods. Fee rule changes—which USCIS implements through formal rulemaking—can significantly change the per-petition cost, and employers who base their immigration budgets on historical fee data without accounting for rule changes may find their budgets inadequate when a new fee schedule takes effect. Monitoring USCIS fee announcements in the Federal Register and coordinating with immigration counsel to update internal fee schedules when changes occur is good practice for employers with active immigration programs.
Employer reimbursement policies for immigration fees vary, and some employers require employees to pay fees upfront and seek reimbursement through expense reports. This practice creates compliance complications for H-1B petitions, where regulations at 20 C.F.R. § 655.731 prohibit deducting H-1B filing fees from workers' wages in certain circumstances—but those restrictions are H-1B specific and do not apply to O-1 petitions as a regulatory matter. Employers should nevertheless establish clear written policies about who pays which immigration fees—the employer or the employee—and should ensure that any employee contributions are consistent with employment agreements and applicable state wage laws that may impose independent restrictions on fee-sharing arrangements.