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DHS Proposes an H-1B and L-1 Fee Amendment

The U.S. Department of Homeland Security (DHS) proposed to amend and clarify when the 9-11 Response & Biometric Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee) apply. The proposed regulatory changes would clarify DHS’s interpretation that covered employers must submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee will apply.

What is the 9-11 Biometric Fee?

In December 2015, Congress established the 9-11 Biometric Fee. Public Law 114-113 instated the 9-11 Biometric Fee after the previous Supplemental Fee expired in September 2015. In Public Law 114-113, Congress expressly intended for the 9-11 Biometric Fee to fund the biometric entry and exit programs it mandated earlier in order to improve security, combat visa and travel document fraud, and protect our country against terrorism.

Public Law 114-113 currently requires petitioners of H-1B and L-1 to submit additional fee ($4,000 for H-1B and $4,500 for L-1) if:

  1. They must submit the Fraud Prevention and Detection fee; and
  2. They employ 50 or more individuals in the United States; and
  3. More than 50 percent of those employees are in H-1B, L-1A, or L-1B nonimmigrant status.

What is the Proposed Amendment?

As mentioned above, currently, Public Law 114-113 requires only H-1B and L-1 petitioners whose petitions are subject to the Fraud Fee to pay the 9-11 Biometric Fee (Public Law 114-113 Fee). DHS proposed to amend the interpretation of the 9-11 Biometric Fee to charge all covered petitioners submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.

In addition, DHS further proposes to clarify the method by which it determines whether a petitioner is a covered employer. Currently, DHS counts all full-time and part-time employees who hold H-1B or L-1 status to determine whether an employer meets the definition of “covered employer” by reaching the 50 percent threshold. DHS requires the 9-11 Biometric Fee once the threshold is met to be considered a covered employer. DHS proposes adding the words “in the aggregate” to both relevant provisions to clarify its current practice.

Public comments for the proposal will close on July 8, 2024. Here is the original announcement by the DHS.

Related Blog: “What Is The Company’s Cost To Sponsor H-1B Visa?

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