On August 13, 2010 President Obama signed into law H.R. 6080, which primarily is an emergency appropriations bill for border security. Of interest to a small group of employers of H-1B and L (including both L-1 and L-2) foreign nationals are provisions that require a new, enhanced filing fee. Employers that have 50 or more employees in the United States must pay an additional amount if more than 50% of their employees are H-1B or L workers. The additional amount is $2,250 for L-1 petitions and $2,000 for H-1B petitions.

In determining the number of H-1B and L employees, Citizenship and Immigration Services (CIS) confirmed during a teleconference that L-2 spouses (who are present in the United States as the dependent spouse of an L-1 worker) working for a company under an Employment Authorization Document must be counted. When questioned about the practicality of how employers are to determine whether an employee may be such an L-2 worker, CIS responded that it expects employers to review and be familiar with the various codes printed on Employment Authorization Documents. Indeed, this presents a unique challenge to potentially-impacted employers and likely will require training from and consultation with immigration counsel.

The supplemental fees apply to petitions with a postmark date of August 14, 2010 or later. They expire September 30, 2014. The employer must pay this new fee with the first petition to sponsor an H-1B or L-1 foreign national employee. The fee is not required when extending H-1B or L-1 status of an existing employee.

The employer still must pay the base filing fees: $320 processing fee, $750 or 1,500 training fee (if applicable) and $500 fraud prevention and detection fee.

As a practical matter, few employers will need to pay the enhanced fee. In most cases, H-1B and L-1 workers comprise a very small percentage of the employer's U.S. workforce.