On August 13, 2010 President Obama signed the Border Security Emergency Supplemental Appropriations Act of 2010 (the Bill) into law. The Bill provides additional funding for specific projects of DHS, the Department of Justice and the Judiciary. In particular, the Bill provides additional funding of US$80 million for ICE including earmarked funding of US$50 million for hiring additional agents, investigators, intelligence analysts and support personnel.

Additionally, the Bill increases the cost of filing L and H-1B petitions for certain employers. For L or H-1B employers who have more than 50 employees in the United States and more than 50 percent of their employees in L or H-1B status, the total cost of filing L or H-1B petitions will skyrocket for the next several years. The cost of an L petition will increase by US$2,250 and the cost of an H-1B petition will increase by US$2,000. The increased costs apply to petitions filed on or after August 14, 2010 and are in effect until September 30, 2014.

US Citizenship and Immigration Services (CIS) General Counsel Roxanna Bacon recently stated that the increased costs should be considered a one-time fee (similar to the antifraud fee currently assessed for new H-1B petitions) that must be paid as part of the petition, rather than an increase in filing fees. Additionally, Ms. Bacon stated that the US Department of State, not CIS, will determine whether the increased costs will apply to L nonimmigrants entering the United States under a blanket petition.

CIS will determine whether the new costs apply by defining "employer" as a person, firm, corporation, contractor, or other association or organization in the United States that: (1) engages a person to work within the United States; (2) 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 (3) has an Internal Revenue Service Tax identification number. 8 CFR § 214.2(h)(4)(ii). In determining the total number of employees and the total number of employees in L or H-1B status, the employer must count the combined number of L and H-1B workers and the number of L-2 dependents the employer has sponsored or employed.

CIS is in the process of revising Form I-129 to capture the information required by the Bill and the definition of employer set forth above. In the meantime, employers submitting L or H-1B petitions must file an attestation with the petition indicating whether they meet the "employer" requirements. If no attestation is submitted, and the employer appears to meet the definition of employer (including having 50 or more employees in the United States and more than 50 percent of employees in L or H-1B status), CIS will issue a Request for Evidence.