In August, Congress passed and President Obama signed into law Public Law 111-230. The new law contains provisions that require petitioning employers to pay an additional filing fee of $2,000 for certain H-1B petitions and an additional filing fee of $2,250 for certain L-1 petitions. The revenue generated from these fees will fund certain new border security initiatives by the U.S. Department of Homeland Security.
The U.S. Citizenship and Immigration Service (“USCIS”) recently confirmed the following points about implementing these new fees:
- The new fees will be required for certain petitions postmarked after August 14, 2010.
- The law will remain in effect until September 30, 2014.
- The law is applicable to petitioning employers who employ 50 or more employees in the U.S. and 50 percent of the petitioner’s employees are in H-1B, L-1 or L-2 status. While employees in L-2 status must be included in the calculation, the higher fee is not required of L-2 applicants.
- The fees do not apply to petitions requesting an extension of H-1B or L-1 status with the same employer. Only first time petitions for each employer must pay.
- The U.S. Department of State and USCIS are in talks about how U.S. Consulates around the world will implement and collect this fee for Blanket L-1 petitions that do not require USCIS approval. Through diplomatic channels at the Department of State, officials of other countries have raised questions as to whether these new fees violate certain international trade agreements.
- Calculation of how many employees are in the U.S. in H-1B or L status must be made at the time of each filing.
- The employer must include part-time employees in H-1B or L status as well as any employees who are in the U.S., even if they are not on the U.S. payroll.
- USCIS has not provided any specific guidance on the definition of “employer” and “employee” for purposes of this new law. This is especially difficult for large companies with many related entities (subsidiaries, affiliates, etc.). USCIS only indicates it will apply the definition of “employer” in the H-1B regulations at 8 C.F.R. 214.2(h)(4)(ii).
That section indicates that: “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.”
While USCIS indicates it will eventually issue more specific guidance on this issue, in the meantime, employers must interpret this part of the regulation themselves. Quarles & Brady has been involved in discussions with the government and other interest groups in order to assist employers with the interpretation and calculation before further guidance is issued.
H-1B petitions subject to this new law must include the following filing fees if it is for new employment or a change of employer: $320 USCIS processing fee, $500 Fraud Detection and Prevention fee, $1,500 ACWIA training fee and the new $2,000 fee under this law, for a total of $4,320. L-1 petitions subject to the law must include: $320 USCIS processing fee, $500 Fraud Detection and Prevention fee and the new $2,250 fee for a total of $3,070.