Visa Lawyer Blog
According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.
The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.
The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.
U.S. Citizenship and Immigration Services (USCIS) clarified yesterday several key issues regarding the new fees, including the following:
* USCIS will require the new fees for any petition postmarked on or after Aug. 14, 2010.
* USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Payment should be made with a separate check.
* Any petition that is postmarked on or after August 14, 2010, that does not include the new fee or a statement outlining why the new fee does not apply may receive a Request for Evidence (RFE). This means that the agency may issue RFEs for H and L petitions that were filed within the past week where the employer has more than 50 employees.
* Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
o Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
o To obtain authorization for an alien having such status to change employers.
* In calculating how many employees are in H-1B or L status, an employer must count any employee in L-2 status who is working pursuant to an Employment Authorization Document (EAD). L-2 petitions, however, are not themselves subject to the new fee.
* The calculation of how many employees are in H-1B or L status must be made at time of each filing. H-1B and L visa holders who are part-time employees as well as those visa holders working in the United States but not on U.S. payroll are to be included in the calculation.
* In determining who the “employer” is when a petitioner is part of a broader corporate structure, the agency will look to the regulation at 8 C.F.R. § 214.2(h)(4)(ii). This leaves many unanswered questions, and a company should consult with counsel if this determination may affect whether the employer is subject to the new fees.
* USCIS is in the process of revising the Form I-129 (Petition for a Nonimmigrant Worker) and related instructions.
* The Department of State (DOS) has not issued guidance on how it will implement the fees for blanket L petitions, and USCIS refused to comment on that point or its discussions with DOS. Because USCIS made references to the new fees being tied to the existing fraud fee, which does apply to L-1 blanket petitions, we anticipate that DOS will impose the new fee on L-1 blanket petitions along lines similar to those imposed by USCIS.
We will provide more updates soon.