Inside USCIS: What a Former Officer Wants You to Know About Immigration RIGHT NOW

Transcript:

Rosanna Berardi: Alright, well, Douglas S. Pierce, former USCIS adjudicator, and Rosanna Berardi, former INS inspector, managing partner of Berardi Immigration Law. Holy man, Doug, what is going on?

Douglas S. Pierce: It’s been a crazy month this month.

Rosanna Berardi: Wow, we got some big headline news. So listen up. There’s a lot going on in the last 12 hours we got some big bombs dropped on us. The first is there’s a proposed government filing fee of $103,265 for H-1B cap cases. Doug, what the heck?

Douglas S. Pierce: Yeah, so first of all, it’s only a proposal, so we need to bear that in mind. It’s not yet in place, but it is something that is being proposed, and I happened to spend some time over the weekend, and I kind of really dug into this and pulled out some good quotes I think that talk about what the purpose of it is, what they’re intending to use that money for, and also, why exactly they’re imposing it.

One of the things this administration does with a lot of their pronouncements, proposals, things, is they tell you straight up the quiet part out loud if you look deep enough into for real what it is that they write up.

Rosanna Berardi: Yeah- And- the proposed rule is, like, 60 pages, right? It’s long.

Douglas S. Pierce: It’s long, but it’s very informative if you, if you kind of- Yeah know how to look through- For real and find the good stuff in there. Uh, well, good stuff relatively, mind you. But here-

Rosanna Berardi: So, so just, just to frame it for the audience, the H-1B category’s designated for professionals who hold a bachelor’s degree or the equivalent. In order to get an H-1B in the United States, you have to enter a lottery system that is truly random. You submit an application, or you, you submit your intent of an application, and luck of the draw, about 30% of applicants are selected for the H-1B lottery. This proposed rule would require most of those individuals selected from the H-1B lottery cap to pay a filing fee of $103,265. Now, today’s fees are about 5 to 6,000, so you could see that this is an enormous number. So Doug, why are they doing this?

Douglas S. Pierce:  Well, first of all, they’re, they’re doing it to raise money, or supposedly. And the fee basically so here’s what they say as to why they’re doing it.

Historically, USCIS fee regulations have been structured to recover only the costs incurred by USCIS. However, the proposed rule would recover costs to other departments and agencies that have statutory responsibilities in the immigration process. And that particularly applies to H-1Bs because you get the Department of Labor involved. You get, you get CBP handles the admissions. Department of State issues the visas. So there’s a lot of other agencies that have significant roles in this process and incur costs.

And so those would include ICE, CBP, EOIR, Department of State, and the Department of Labor would all receive a portion of these fees. And I’ll break those down in terms of percentages, ’cause that’s also buried in there as well.

The, the H-1B cap subject petitioners, they say, are most willing and able to pay the H-1, or to pay an additional fee. And now this, mind you, includes, you know, of the 85,000 petition, or petitions that would be included in this cap, about 11,000 of them are for non-profit small companies that have, that are maybe only hiring one or 2 workers. But so if you imagine, this fee is a significant cost, especially to a non-profit or a small startup company that’s just trying to get its feet on the ground.

DHS believes that the US employers would be less able to, or would be less likely to hire an H-1B worker over a qualified and highly skilled American worker unless the need is legitimate and they have no real alternative. So right there they’re saying the quiet part out loud.

They are basically saying, “We want to impose this fee to make sure that these petitioners are paying these additional costs, these w- employers, so that they’ll pay higher wages to American workers and hire fewer of these folks.” Now, there’s far more than 85,000 petitions that are filed each year, so they’re expecting that the demand will go down, especially over time, but I think they’ll still get enough to qualify this, ’cause this would raise approximately $8.8 billion a year in additional fees.

And they are Now, mind you, the USCIS total funding for 20- 2025 was about 7.4 billion. So, um, this- Double it you know, would, this would add about 3 billion to the USCIS budget. So take it from 7 something to about 10 billion if all things are equal.

But when you look at it, um, the number of applications and petitions being filed for USCIS has gone down. This agency has been discouraging people from filing applications and petitions all across the board. And so you’re getting a lot less incoming revenue from the other fees that are coming. So my guess is, in part, they want to replace some of that revenue with this larger fee imposed on businesses that would be hiring these H-1B workers.

Rosanna Berardi: So super interesting. Um, the H-1B category is highly regulated. Um, it’s been under attack by this administration. They first, last September, I remember I was out to dinner and my phone was blowing up because they said, “Okay, H-1Bs, if you’re out of the United States, $100,000 fee.” And that fee has been ping-ponged between many courts. It’s still in litigation right now.

But again, big sound bite, $100,000. And to me, the message is loud and clear. American employers, if you’re gonna do this and you’re not gonna hire Americans, we’re gonna make you pay a lot of money. And I wish, as a business owner, that I could just decide one day to charge people $100,000. You know, with- without a lot of fanfare. But I think what we’re seeing here is the way that they rolled that out last September has been very muddy. This time they actually took the time to make it a proposed rule. Right. And that is more legally sound, if you will. Doesn’t mean it’s gonna happen, and please know listeners, it’s not in effect today. But the next step of this is a comment period.

The way that when the, when rules are changed, aside from Congress changing a piece of legislation, when the actual implementation, the rules are changed, it goes through the public rule timeline, if you will. And right now, they announced the proposal yesterday. Comments will start. They’ll collect the comments, and you know there’s gonna be a million groups. There’s gonna be US Chambers of Commerce, there’s gonna be a lot of industries saying, “Hell no, this is terrible.” And then we’ll see what they do with it. And if it does go into effect, then, you know, lawyers are gonna challenge whether the president has the authority to do this, or whether this clearly fits within the confines of the legislative branch.

Douglas S. Pierce: Absolutely. And, and, you know, what this is an attempt to shift a huge portion of the cost of USCIS benefits onto a relatively small group of businesses and companies and nonprofits saying, “Well, if you want to benefit from this, you’ve got to pay these f- fees.” Um, and when you think about it, it’s about, you know, that money, that almost $3 billion from this fee in proposal would be about 30% total of USCIS’s entire budget.

And it would also be paying significant amounts to so 12% of the 8.8 billion would go to ICE, 1% to CBP, 34% to the EOIR. So that’s almost the same amount that USCIS would be getting. So now you’re asking these businesses to subsidize the deportation or removal process, 5.5% to the Department of State, and then 14% to the Department of Labor.

So you’re looking at a broad spreading of these costs for agencies and departments that haven’t previously been able to recoup costs from helping USCIS to administer these l- these laws. And so now this is all according to their proposal.

I mean, these numbers are buried in this exact 65 pages proposal. So they also talk about there’s a wage g- the proposal also mentions that there’s a wage gap. They say that US employers pay about 16.1% less in expected wages for compare- comparative to a native worker for the same position. So they’re saying, you know, that, their feeling supposedly is that it’s going to reduce the number of companies that hire people from abroad.

But I think I think it’s pretty clear that there’s just not enough US trained workers to do a lot of this work.

Rosanna Berardi: I can say sitting on my side of the desk for almost 30 years representing corporations, most corporations would not choose this route if they had alternative labor options. So most companies, for them to say, “Okay, well, I’m going to save 5 or $10,000 if I hire a foreign worker,” they’re going to pay almost double that between legal and filing fees.

So, a common argument on every news station is, well, these people are taking American jobs and it’s not fair, and employers seek them out for foreign labor, for savings on foreign labor. And I will argue until my grave that it is not cheaper for companies to do this, and if given the choice, they would select a US citizen. But we don’t have enough occupations and individuals to fill tech, medicine, you know, research, science.

And should we in a country of our size? Yes. Do we? No. So I feel like this category is under attack, and I think it’s just misplaced because it does fill in, um, for gaps that exist, particularly in, like, underserved areas. You know, without these people, a lot of hospital and medical systems would definitely crumble.

And I don’t know, Doug, if you’ve been into a hospital these days, it’s not even that good right now. Right? Absolutely. hot mess. And man, oh man. Yeah.

Douglas S. Pierce: I would s- and there’s ano- there’s a hidden cost there to US companies that hire H-1B workers already with before you add in any of these fees. It’s the compliance cost of any time you say, “Okay, I, as a company, we need to, to put out these advertisements and hire these foreign workers- Yes they’re paying, they’re pa- they have to satisfy the Department of Labor.

They have to you know, they have to prove that they, that this, they can’t get workers for these, you know, for the wages that they can pay. And then you’re inviting USCIS to send, you know, site visits, FDNS workers. You got to send in- Right financial documents showing that your company is viable and can afford the workers that you’re hiring.

So all of this costs money too, and it means that there’s people at that company that are working on complying with all the rules and regulations for these foreign workers that aren’t doing the work that they would prefer to be doing. For sure.

Rosanna Berardi: So the takeaway here, it is proposed, so don’t lose sleep over this one now. I think a lot of this is messaging from the administration. The administration knows full well Look, you might think the administration’s crazy or whatever. There’s a lot of smart people behind the scenes putting things together. They know full well this probably isn’t going to ever see the light of day for a lot of different reasons, but guess what’s on the headline news today and last night and everybody’s I’ve gotten probably 10 different text messages from people in my life like, “Did you see this?

Oh my God, this is crazy. What does this mean?” They love the message. Our president today is a marketing person. He’s a business owner. The midterms are coming up in 8 weeks. He was elected to fix immigration. Did he? No. Should he? No.

That’s Congress’s job. But anyway you know, let’s not talk about that. But I don’t think the timing of this is coincidental. Do you agree?

Douglas S. Pierce: I agree. And, you know, this president is somebody who believes strongly that there’s no such thing as a bad headline. It’s a- Correct every headline is good, and- Right it shows that he’s working on this problem.

And, you know, a lot of times- Yeah the media just doesn’t have enough savvy to understand, or the readers and the, and the consumers of the media don’t have the, enough detail to dig into and really understand what’s going on. What I call, you know, some of the stories that we’re going to talk about today, the whole thing just reminds me of a German term from the 19th century called Sturm und Drang, which it means, um, it means storm and stress. And, and it it referred to a whole political movement, but now in the modern term or modern connotation, it means more just turmoil. Oh, yes there are more appropriate word to describe this administration than turmoil.

Rosanna Berardi: Completely. They are constantly stirring the pot. I have to give them credit for constant, the constant drip of this. I mean, I can almost set my calendar and clock to, oop, it’s been quiet for a couple weeks. Something’s going to come out on Friday.

And invariably, this administration is committed to their promise to fix immigration. They’re not going to fix it, but boy, are they going to talk about it- Yeah every couple weeks. Absolutely. So speaking of turmoil, Doug, woo, this one last night- I was trying to relax and this headline came across my phone saying, “Biggest visa revocation in American history, 200,000 people. We’re getting them out of here.

They came in as visitors, and then they applied for asylum, and we’re not gonna stand for that. We’re shipping them out.” Holy, man, you wanna talk about turmoil and chaos? That’s a headline.

Douglas S. Pierce: Yeah, absolutely. Every major news outlet had that same headline of 200,000 The mass revocation of up to 200,000 B1/B2 visas, uh, that are for the people who have applied for asylum in the last 10 years or so.

And this more than any of the other stories really applies to the whole Sturm und Drang, thought in the sense that I was at a conference, uh, earlier or this last weekend and one of my co-presenters was a person who worked for the State Department. And she talked about how the visa that people have is permission to knock on the door. Right. It’s permission to apply for admission to the United States. CBP makes a determination when that person knocks on the door, can you come in or not?

And then in prior to that taking place, USCIS, and the State Department kind of help to decide whether somebody can qualify for the visas. Now, with the B1/B2 visas, those are primarily all issued by the State Department and, um, they’re basically visas that are the most common tourist visas. And part of the ap- application process at the Department of State embassies and consulates is they ask, “Are you going to a- try and apply for asylum when you come to the United States?” And if they say yes to that, they’re not given the visa.

They’re told- Right “Okay, well, you can’t come in. You need to apply for it in a different way.” And the, the idea that they’re going to then you know, issue mass revocations, go through the records of those who are applying for asylum with before USCIS and cancel all the B1/B2 visas that have been given to these people basically as a statement saying, “Well, you said you weren’t going to do this. Now you’re doing it.” “Therefore, we’re going to cancel your visas.” Now, again, that just cancels the document that’s in their passport.

It doesn’t change their actual status, ’cause if they’re in the United States, they were admitted. And so they have a, they have a B-1 or an I-94 that has a date of admission on it and how long they can stay, but it doesn’t, uh, revoke that. This revocation of the visa just means that they can’t knock on the door again at some future time.

Rosanna Berardi: And- Okay newsflash, newsflash, just because their visa is revoked does not mean the government can round them up and put them on an airplane and say, “Arrivederci.” They are afforded due process rights under the United States Constitution.

If you are on US soil, people don’t like this rule. When I talk about it, people are like, “That’s not fair. It should only be for US citizens.” Well, take it up with the Founding Fathers, people. The US Constitution says if you are on US soil, it doesn’t matter if you’re here unlawfully, lawfully, US citizen, green card holder, H1B, you are afforded due process. What does that mean?

It means your day in court, your day in front of a tribunal that makes a decision. Did you commit fraud, fraud and misrepresentation? Did you overstay your visa? Should you be removed from the country? These 200,000 people are gonna get now pushed at some point into the immigration court system that is backlogged for 5 years on a good day. This is a terrible idea.

Douglas S. Pierce: Absolutely. And to be clear, these 200,000 people are currently in the, the, have requested asylum. And so that means that they ha- when you go to the USCIS and say, “Hey, I can’t go back to my country because of my political opinion, my religion, my ethnicity,” whatever it is that you’re stating you can’t go back there, it’s too dangerous to do so. So these are not people who are, “Okay, I’ve applied for asylum.

I’m gonna go off and head off on the vacation now in Bermuda-” Yeah. Or fly back to China or whatever, because they’re stating by the filing of the asylum claim, they’re saying, “It’s too dangerous for me to go back there.” So they’re basically saying, “I’m not gonna be, uh, flying in and out.” And if they were to leave the United States without an advance parole, they have no status. Their asylum claim is done, and their Well, now their visa will be re- canceled as well.

So they’re not coming back to the United States. So these are folks, they’re not that many folks who are filing for asylum who don’t have some concerns, some real and legitimate concerns about going back to. Are there people who are filing just with a, with a bogus story? Yeah, probably. But it’s a tiny percentage.

Correct there’s a larger percentage of people who are filing for asylum who maybe don’t ideally qualify for it, because things that they’re concerned about don’t fall under the asylum law for whatever reason. But there are gonna be some percentage of these 200,000 people that are gonna receive asylum, either from USCIS or from an EOIR judge if, what, if USCIS doesn’t approve it, a judge might. Right.

Rosanna Berardi: And the timing of this one, to me, this is certainly not coincidental. It’s almost September, folks, and that means the midterms are right around the corner, and the administration and its party wants the sound bite of, “They’re getting rid of people. They said they were gonna do this, and they’re gonna do this.” So this came out, in my opinion, very intentionally. Again, will this deliver on their promise to fix immigration?

Probably not. If I was a betting person, I would say this one’s not gonna really happen either. But look at what we’re talking about. Look what I’m talking about all over the media today. What is the messaging here, Doug? The messaging is, “The US is closed. If you’re not here, if you weren’t born here, get out.

Douglas S. Pierce: Absolutely. And each of these things, the, the, the H-1B f- new fee th- that’s proposed this asylum revocation of, of B-1/B-2 visas, each of them tie into other proposals and other actions that have been taken in the last few months. I mean, there was a m- there’s a move now, or that’s been established, you know, I think we talked about it last month, um, that where the, um, where asylum, you know, USCIS might decide a person doesn’t have a true basis for asylum claim and, and send that case directly to the immigration court rather than conduct a hearing like they would normally do and give that person an interview and a chance to show that they have asylum.

So, when you factor in that ruling or that, that idea with this, now we’re saying, “Okay, we’re gonna cancel the non-immigrant visas of these folks. We’re going to send them off to the immigration court, potentially without a chance to really explore their case before an officer in a non-confrontational setting.” Now they gotta go into an adversarial process at the courthouse, you know, with the EOIR, and that’s just a inherently more fraught process.

Rosanna Berardi: So Doug, as a former USCIS officer, these are big headline news, and I remember when I worked for the agency many moons ago, we were always sort of the last to know about, like, what it really means. So, you know, put yourself back into your position that you recently retired from. You see something like this. How does this trickle down to day-to-day adjudication?

Now, okay, these two things will not impact some green card applications and such, but the tone, the messaging- um, the intent, how does that trickle down, and, and what should our viewers, you know, think about when they’re preparing their cases or they have their interviews with USCIS?

Douglas S. Pierce: So I think it really comes down to the vibes, right? I mean, this, these, all of these orders, every one of these rule change proposals, rule changes, executive orders, it really is aimed at making immigrants more nervous, making the pathway more difficult and fraught and dangerous in terms of, well, if you file this application, you may end up in, in removal proceedings.

And so what it really boils down to for the officers, it’s telling them they need to tighten up and, and make things more challenging as well, because they’re being looked at. For any time a person grants, an officer grants a case, they’ve gotta justify it now. They’ve gotta provide a lot more justification than they used to be.

It used to be that granting was the easiest thing you could do with most applications and petitions. The denial is what was gotten more scrutiny, and now that’s kinda switched. The denial, eh, you want to deny it, go for it. If you’re if you’re approving it, we wanna take a look at that and see why you’re approving So that changes the calculation in the officer’s mind. I if I’m gonna grant this, I better have a good and justifiable reason for it that I can say, yes, this person’s eligible for this benefit.

Rosanna Berardi: For the applicants- So- it’s really, um, they’ve gotta build better cases before they file It’s never been more important than right now to go in with your best foot forward. You do not want to half-ass your im- your immigration interview right now.

You want to go in, you want your case to have airtight documentation, you want to connect every dot. When we prepare our cases, we prepare it so that a 10-year-old that picks up the file could understand it. Super easy, clean documentation.

Lawyers like to talk, and cite case law, and blah, blah, blah. That’s important to a degree, but to me, make it easy for the officer to understand, to review, and make it easier for them to say, “There’s no way I can deny this application.” Am I right?

Douglas Pierce: Absolutely. The easier it is for somebody to see that this person is eligible for the benefit, the more likely that benefit is to be granted. And so And that should be done at initial filing. You can’t just file something now and hope and pray that you’re gonna get an RFE if something critical is missing. You can’t say, “Well, I’ll get them that divorce decree- Right or that marriage certificate later on.” If it’s part of that initial evidence that’s you need to establish your basic eligibility for that benefit, it needs to be included in your initial package.

No more, “I’ll just send it on later,” or, “I’ll bring it to the interview,” because you might- Yeah not make it to an interview.

Rosanna Berardi: Right, right. I mean, I’ve been doing this for so long that I remember decades ago, sometimes if it was taking a really long time to get a medical exam or what have you, we would file the case and say, “Okay,” we’d file without it, and then submit it with the RFE. Gone are those days. You have to have everything in order on the first run.

Douglas S. Pierce: Yes. And RFEs are gonna be reserved for complications, you know, things that maybe the officer wants additional clarification on, not something that’s basic and integral to whether or not you’re eligible for this benefit, so. Right.

Rosanna Berardi: Well, Doug, I think you and I are gonna be talking a lot more between now and November- which is lovely for me and our viewers. Awesome. But all of these things are moving targets, lots and lots of commentary going around. We’ll see what’s happened, but once again, thank you for joining us. Please close us out with this German word again that I don’t remember that means turmoil.

Douglas S. Pierce: Sturm und Drang. basically storm and stress, Storm and stress. Really, that’s what it translates to- Yeah and really just kind of means, in the modern parlance, turmoil. And that’s We’re in a period of turmoil right now, especially in the immigration space.

Rosanna Berardi:  Never in the history of my practice have we been more disrupted and distracted by news. You know, it’s really hard to put our, our heads down now and get our cases out the door because there’s like a, “Oh, wait, this policy just came out. Does it apply today?

Does it apply tomorrow?” I want everybody listening to know the H-1B proposed crazy fee is a proposal, and this mass visa revocation remains to be seen. So right now today, not in effect, but who knows? And so please watch closely.

We are committed to bringing you up to date, up to speed on what’s happening, and how this will all fit together, and we are thrilled to have former USCIS Douglas S. Pierce join us. So, thank you, Doug, for your commentary, and, cheers to more turmoil, I guess.

Douglas S. Pierce: Alright. Thanks, Rosanna, for having me. I appreciate it, and, uh, I’ve enjoyed these conversations every month. Uh, seems like we might need to have more of them every few months.

Rosanna Berardi:  Yeah. We may bring you in for a special episode, so- Yeah stay tuned on that. But thanks for joining us, and we’ll talk next time.