August 10, 2026
What You Need to Know
- DHS has finalized a rule expanding the 9-11 Response and Biometric Entry-Exit Fee (9-11 Biometric Fee), commonly known as the “50-50 fee,” to cover same-employer H-1B and L-1 extension petitions, a category previously exempt from the fee.
- The fee ($4,000 for H-1B, $4,500 for L-1) applies only to “covered employers,” meaning employers with 50 or more U.S. employees where more than 50 percent hold H-1B or L-1 status, counted in the aggregate.
- The rule was published in the Federal Register today, August 10, 2026, and takes effect 30 days later, on September 9, 2026, applying only to petitions filed on or after that date.
- Amended petitions that do not request an extension of status remain exempt from the fee.
- Employers that are covered, or close to the threshold, have a narrow window to file pending same-employer extensions before the fee applies.
The Department of Homeland Security published a final rule today that closes what has been the most commonly used exemption from the 9-11 Biometric Fee, often called the “50-50 fee” because of the statutory threshold that determines who owes it: the same-employer extension. Once the rule takes effect on September 9, 2026, covered employers will owe the fee on nearly every H-1B and L-1 extension petition they file, not only on new petitions or petitions involving a change of employer. Employers with large H-1B or L-1 dependent workforces, particularly in the IT services, staffing, and consulting sectors, should determine now whether this rule applies to them and, if so, plan accordingly.
What Is Changing
The 9-11 Biometric Fee was created by statute in 2015 to help fund DHS’s biometric entry-exit system. Since 2016, DHS has applied the fee only when a related fraud prevention and detection fee also applied, which generally meant initial grants of H-1B or L-1 status and change-of-employer petitions. A same-employer extension, where a covered employer simply extends a current employee’s status with no change in the underlying employment, had not previously triggered the fee.
The new rule eliminates that distinction. Covered employers will now owe the 9-11 Biometric Fee on same-employer extension petitions as well. Amended petitions that do not also request an extension of status remain exempt. The fee amounts themselves, $4,000 for H-1B and $4,500 for L-1, are set by statute and are unchanged by this rule.
DHS attempted this same expansion once before, in a 2020 rule that was enjoined by two federal courts before it took effect. This time, DHS has proceeded through full notice-and-comment rulemaking and grounds its interpretation in the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, arguing that the statutory text, which refers to petitions “including an application for an extension of such status,” compels this reading rather than merely permitting it.
Who Is a Covered Employer
The fee applies only to a “covered employer,” a term defined by statute as an employer with 50 or more employees in the United States, more than 50 percent of whom hold H-1B or L-1 nonimmigrant status. This 50-employee, 50-percent test is why the fee is widely known in the industry as the “50-50 fee.” The final rule adds the phrase “in the aggregate” to confirm that DHS counts full-time and part-time H-1B and L-1 employees together for purposes of this threshold.
Employers below either threshold, either fewer than 50 U.S. employees or an H-1B/L-1 concentration at or below 50 percent, are not covered employers and are not subject to the 9-11 Biometric Fee under this rule. Employers should not assume their status from a prior year continues unchanged. Workforce composition can shift, and DHS’s aggregation clarification underscores the importance of confirming covered employer status at the time each petition is filed.
Effective Date and No Retroactivity
The rule was published in the Federal Register today, August 10, 2026, and takes effect 30 days later, on September 9, 2026. It applies only to petitions filed on or after the effective date. Petitions filed before September 9, 2026, including same-employer extensions, are not subject to the expanded fee, regardless of when USCIS ultimately adjudicates them. The rule is not retroactive.
Covered employers with same-employer H-1B or L-1 extensions in the pipeline have a limited window to file before the effective date. Because filing means the petition must actually arrive at USCIS, not merely be prepared or postmarked, by September 9, 2026, employers should build in adequate courier or mail transit time rather than treating that date itself as a filing deadline.
Will This Rule Survive Legal Challenge
The 2020 version of this same expansion was blocked by two federal courts, but those injunctions turned on procedural and other grounds unrelated to the merits of DHS’s underlying statutory interpretation. This time, DHS has used full notice-and-comment rulemaking, which addresses the defect that undid the earlier attempt, and is relying on Loper Bright to argue that its reading of the statute is the correct one rather than a discretionary policy choice entitled to deference. In our assessment, this combination makes the current rule considerably more durable than its 2020 predecessor, and we would not expect a court challenge to succeed in blocking it before the effective date or on the merits. Employers should nonetheless plan around the rule as written rather than around the possibility of a successful challenge.
What Employers Should Do Now
- Determine whether you are a covered employer: confirm your current U.S. headcount and the percentage of that workforce in H-1B or L-1 status, counted in the aggregate, against the 50 percent threshold.
- If you are a covered employer, identify any same-employer H-1B or L-1 extension petitions not yet filed and prioritize preparing and filing them so they arrive at USCIS before September 9, 2026.
- Build mailing or courier transit time into your filing timeline. Arrival at USCIS, not mailing, is what matters.
- Reassess extension budgeting going forward to account for the fee on same-employer filings submitted on or after the effective date.
- Confirm that amended petitions without an extension request are correctly characterized, since they remain exempt from the fee.
- If your workforce composition is close to the 50 percent threshold, monitor it periodically rather than relying on a prior determination.
How Goel & Anderson Can Help
Goel & Anderson has advised employers on large-scale H-1B and L-1 programs for more than 30 years, including clients whose workforce composition places them at or near the covered employer threshold. We can confirm your covered employer status, help prioritize and expedite pending same-employer extensions ahead of the September 9 deadline, and build the new fee into your ongoing immigration budgeting. If you have questions about how this rule applies to your organization, please contact us.
Frequently Asked Questions
What is the 9-11 Biometric Fee?
The 9-11 Response and Biometric Entry-Exit Fee, commonly known as the “50-50 fee,” is a statutory fee, currently $4,000 for H-1B petitions and $4,500 for L-1 petitions, that funds DHS’s biometric entry-exit system. It applies only to “covered employers” as defined by statute.
Who qualifies as a covered employer?
An employer with 50 or more employees in the United States, where more than 50 percent of those employees, counted in the aggregate, hold H-1B or L-1 nonimmigrant status.
Is the “50-50 fee” the same as the 9-11 Biometric Fee?
Yes. “50-50 fee” is an industry nickname for the 9-11 Response and Biometric Entry-Exit Fee, reflecting the statutory test that determines who owes it: 50 or more U.S. employees, more than 50 percent of whom hold H-1B or L-1 status.
Does this rule change the fee amount?
No. The fee amounts are set by statute and are unchanged. What changes is the scope of petitions to which the fee applies for covered employers.
When does the rule take effect?
The rule was published in the Federal Register today, August 10, 2026, and takes effect 30 days later, on September 9, 2026. It applies only to petitions filed on or after that date.
Will an extension petition filed before September 9, 2026 be subject to the new fee?
No. The rule is not retroactive. Petitions that arrive at USCIS before the effective date remain governed by the current rule, even if adjudicated afterward.
Is my amended petition subject to this fee?
Only if it also requests an extension of status. An amended petition that does not request an extension remains exempt.
Is this rule likely to be blocked in court?
We believe it is more durable than DHS’s 2020 attempt at the same expansion, which was enjoined on procedural grounds unrelated to the merits. This rule was issued through full notice-and-comment rulemaking and is grounded in a Supreme Court decision favorable to DHS’s interpretive approach. We would not expect a legal challenge to succeed in blocking it, though employers should plan around the rule as written.
This client alert is provided for informational purposes only and does not constitute legal advice. Please consult with qualified immigration counsel before taking action in reliance on this alert.
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