One can envision a scenario in which, in a few months’ time, a woman from Venezuela who is fleeing political persecution arrives in the United States to seek asylum and discovers that she can’t: She can’t afford it.
On Monday, the White House released a memorandum delineating ways in which it hopes to “enhance border security and restore integrity” to the immigration system. Included are a number of changes to the process for seeking asylum in the United States, including “setting a fee for an asylum application not to exceed the costs of adjudicating the application” and ensuring that all asylum claims are adjudicated within 180 days. As it stands, thanks largely to a huge backlog in the number of cases, asylum cases take nearly 800 days to process.
President Trump’s goal isn’t a mystery. Faced with an increase in migrants arriving at the border with Mexico, many of whom make asylum claims, Trump wants to add a cost to doing so that’s less exacting than separating parents from children — the cost that he endorsed last year before facing a broad public backlash.
As it stands, asylum claims are one of the few processes for arriving in the United States that don’t involve any cost. The rationale for that is obvious and articulated above: The ideal was that those needing refuge from dangerous situations would be able to seek it without being turned away for lack of funds. The Statue of Liberty isn’t welcoming wretched refuse from teeming shores only once a $400 processing fee has been turned over.
Well, except when it is. We spoke with David Leopold, past president of the American Immigration Lawyers Association, to get a broad sense for how expensive the process was for non-asylum-seeking migrants.
He walked through a number of scenarios and described the fees that apply for people to immigrate to the United States.
If a family member is immigrating: If a U.S. citizen wants to bring her spouse to the United States, she first files a petition to do so using form I-130. That costs $535.
If the petition is approved and the spouse is in the United States already — a student, for example — he files an application to adjust his legal status. The cost there is $1,140, plus an $85 fee for obtaining biometric data. If the couple has children who similarly want to obtain green cards, it’s $750 a person to adjust status for those younger than 14.
If the spouse is overseas, the cost is lower: $325 for processing at a U.S. Consulate and a similar charge for any children.
There are other obligations, too, such as proving that the spouse won’t end up being cared for by the state. But those are the out-of-pocket charges.
If an employee is immigrating: Companies can also sponsor employees to become citizens, as you probably know. The first step is to file an application with the Labor Department. Next, the employer files an I-140 petition, which costs $700. If that’s approved, the same $1,140 and $85 biometric fee apply.
If the employee is only a guest worker in the country temporarily, the process is slightly different. The company first files an I-129 petition, which is $460 for each employee, a cost that the company has to pay itself. Then, for companies of a certain size, there are additional fees meant to discourage the use of foreign labor: $1,500 for a fund used to retrain American workers to be able to do the work and another $500 for fraud detection.
If the petition is approved, the person who will take the job pays $190 at the embassy in her country to obtain a visa stamp for entry to the United States.
If a random individual is immigrating: People of extraordinary ability or who are performing work in the national interest (Leopold used the example of a cancer researcher) can apply for the ability to migrate to the United States. In such cases, the petition cost is $700 (the I-140 again) and, if approved, the $325 consular fee applies as well. Normally this takes eight or nine months. To have it processed more rapidly — in about two weeks — costs $1,410.
If you’re not a person of extraordinary ability? Well, Leopold said, there’s really no way to permanently migrate to the United States. Unless, that is, you seek asylum because you’ve been subjected to persecution in your home country.
While there’s no fee to apply for asylum, it’s not the case that there are no resources involved in the process. Those migrating from Europe or Asia need to pay for transit to the United States, as well as for visas allowing them onto U.S. soil. (You can’t apply for asylum unless you’re in the United States.) Those fees start at about $160.
If you’re migrating from Central America, you may need to pay to ensure you make it to the border safely. The New York Times reported last year that a family from El Salvador paid $6,000 to smugglers to transport them to the U.S.-Mexico border. Part of the goal of the migrant caravans that have come north in recent months is to provide a low-cost, safe way for migrants to get north.
Once your asylum claim is filed with the United States, there’s another important cost: an attorney. Asylum seekers who have legal representation are much more likely to be granted asylum. In 2017, 90 percent of those without legal representation were denied asylum while only 54 percent of those with legal representation were.
Leopold noted that there were a number of organizations that do pro-bono legal work for asylum seekers (as he has in the past). The backlog of immigration cases — more than 800,000 at this point — means that many asylum seekers can’t afford counsel and won’t have the benefit of free counsel.
Why is representation important? Leopold answered that question — and explained why Trump’s proposed 180-day limit on asylum claims is another heavy burden on claimants.
Asylum cases are tough, Leopold said, because only claims meeting particular, limited standards are approved. The persecution faced by the asylum seeker has to relate to “your race, your religion, your nationality, your membership in what's called a particular social group or your politics,” he said.
“The standards are demanding. Courts require proof,” he added. “And, frankly, when people flee persecution they don’t show up with a note from their torturer.”
To obtain that proof, asylum seekers need evidence, often from institutions or organizations in their home countries that might not be rapidly forthcoming.
"The time it takes to put together a case does not in any way relate to the strength of the case,” he said. “It relates more to the availability of evidence."
Most migration is funded by applicants, Leopold said, to the extent that applicants used to be referred to as “customers.” Asylum is different.
“I think that reflects who we are as a nation,” he said. “People are coming here not for the fun of it or because they want to; they’re coming here because they’re fleeing something, some harm. And whether or not that harm fits into our law is something for the judge to decide.”
Applying a fee, even a de minimus one, to the asylum process will necessarily mean that fewer people apply for asylum. That is its intent, just as the intent of family separation was to deter people from coming to the United States.
It may mean a decrease in the backlog in the immigration system. It may also mean that deserving asylum applicants are returned to or remain in the dangerous situations they’d like to flee.