USCIS Implements H-1B and L-1 Fee Increase Under the Emergency Border Security Supplemental Appropriations Act of 2010
08/19/2010
U.S. Citizenship and Immigration Services (USCIS) today hosted a teleconference to discuss its implementation of the Emergency Border Security Supplemental Appropriations Act of 2010, which contains provisions that raise H-1B and L-1 petition filing fees for employers with a U.S. workforce of more than fifty employees when more than fifty percent of those employees hold H-1B, L-1, or L-2 status. This legislation was signed into law by President Barack Obama on August 13, 2010.
Attorneys at Goel & Anderson participated in the teleconference this afternoon, and a summary of the important points are included below in Question and Answer format:
When will the new fees be required?
USCIS has indicated that the increased fees will be required for petitions postmarked on or after August 14, 2010, and will remain in effect through September 30, 2014.
Do these increased fees apply to all employers of H-1B and L-1 personnel?
No. The increased H-1B and L-1 fees are applicable only to H-1B and L-1 petitions filed by employers with a U.S. workforce of more than 50 employees where more than 50% of the employees hold H-1B, L-1A, L-1B, or L-2 status.
What is the amount of the fee increase?
An additional fee of $2,000 will be required for H-1B petitions filed by employers who are subject to the increased fee. This amount is in addition to the existing Form I-129 filing fee of $320, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee of $1500, the Fraud Prevention and Detection Fee of $500, as well as any premium processing fees, if applicable.
An additional fee of $2,250 will be required for L-1 petitions filed by employers who are subject to the increased fee. This amount is in addition to the existing Form I-129 filing fee of $320, the Fraud Prevention and Detection Fee of $500, as well as any premium processing fees, if applicable.
The new fee will only apply to the initial petition filed by an employer on behalf of a foreign national, including petitions requesting a change of employer. The new fee will not apply to extensions of H-1B or L-1 status with the same employer.
Can an H-1B or L-1 employee remit or pay the increased filing fee?
No. The increased fee is to be borne entirely by the employer.
How will USCIS count employees to determine whether a company surpasses the 50% threshold for H-1B or L-1 employees?
USCIS has indicated that this will require comparing an employer's U.S. headcount of all employees against its combined total number of employees who are present in the United States in H-1B, L-1A, L-1B, or L-2 status. Where the combined total of H-1B, L-1A, L-1B, or L-2 employees comprises more than 50% of the U.S. workforce, the employer is subject to the increased fees (assuming it has more than 50 employees in the U.S.). USCIS further indicates that all U.S. employees are to be counted, without regard to whether they are full-time or part-time employees. Persons who are working for the employer in the U.S. but are paid from a foreign payroll should also be counted as employees.
USCIS also indicated that an employer's workforce calculation should be completed each time it is filing an H-1B or L-1 petition. The immigration agency also clarified that employees with a pending Form I-485, Application for Adjustment of Status, should only be counted toward the total number of H-1B, L-1 and L-2 employees if they are working pursuant to an H-1B, L-1 or L-2 approval rather than pursuant to an Employment Authorization Document (EAD) issued in conjunction with an Adjustment of Status application.
Who is an "employer" for purposes of these fee provisions?
USCIS noted that it will use the regulatory definition of "employer" that appears in the U.S. Code of Federal Regulations at Volume 8, Section 214.2(h) (4) (ii), which states:
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:
- Engages a person to work within the United States;
- Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
- Has an Internal Revenue Service Tax identification number.
This definition would seem to preclude an employer from counting the employees of a parent, subsidiary, affiliate, or other controlled group of companies in this calculation.
Are the increased fees payable at the time or admission to the U.S. or at the time the application is filed?
USCIS requires covered employers to remit the increased fee at the time an H-1B or L-1 petition that is subject to the increased fee amount is submitted for filing.
Does the increased fee apply to L-1 Blanket petitions?
Although USCIS refused to provide an answer to this question, the statutory language suggests that the increased fee amount will be required of all L-1 petitions filed by a covered employer, irrespective of whether they are filed as individual petitions or under the employer's approved L-1 blanket petition.
As L-1 Blanket petitions are adjudicated by the U.S. Department of State (DOS), it is expected that it will similarly issue guidance in the coming days. Given that DOS has continued to issue visas in recent days without having implemented the new fees, it remains to be seen if the agency will make any effort to retroactively apply the fees to such cases.
How should a covered employer submit the increased fee?
USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with the provisions of the Emergency Border Security Supplemental Appropriations Act of 2010. In the meantime, USCIS indicated that all H-1B and L-1 petitions received from employers with more than 50 employees would be held for evaluation as to whether the new fees apply.
Thus, until the Form I-129 revision is completed or further guidance is issued, USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS noted that an employer who believes it is subject to the new fee should include the additional amount in a separate check made payable to "Department of Homeland Security. USCIS also requested that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the new law. An RFE may be required even if such evidence is submitted, if questions remain.
Goel & Anderson will provide further updates on this issue as additional details emerge. If you have questions about these provisions, please contact Goel & Anderson for further assistance.