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New Fees for Certain H and L Petitions - August 19, 2010

H.R. 6080, the emergency supplemental appropriation for border security, was signed into law August 13, 2010, and became effective immediately.

One source of revenue included in the law was an increase in filing fees for certain H-1B and L petitions. Fortunately, the petitions to which this change applies are a fairly small pool. Unfortunately, implementation of the law will likely slow adjudication of all H-1B and L cases.

The additional fee applies only to employers with more than 50 employees AND if more than 50% of those employees are in H-1B or L status.

The additional fee, if applicable, is $2000 for H-1B and $2250 for L-1s. This is in addition to the currently applicable filing fees.

The fee applies only to initial filings or changes of employer (the same cases to which the $500 anti-fraud fee currently applies). It does NOT apply to extensions of stay in the same status (in other words, it is only paid once per employee by a particular employer). The additional fee must be paid by the employer.

Cases filed with a postmark before August 14 will not be affected by this law. All cases filed August 14 or later will be reviewed to see if the new fee applies.

Employers with 50 OR FEWER employees would not be affected by the law and would not be required to pay the fee or provide evidence that the fee does not apply.

Employers with MORE THAN 50 employees should include evidence that the fee does not apply with the initial filing to avoid delay of adjudication. CIS will send a request for evidence if it is not clear that the fee does not apply.

CIS is amending the I-129 form to include an attestation regarding whether the fee applies. Until the form is revised, petitions should either include the fee if it applies or evidence that it does not apply (such as an employer attestation and supporting evidence).

CIS does not at this time have rules regarding what evidence will be considered sufficient to prove that no more than 50% of the employees are in H-1B or L status. As usual, proving a negative is challenging.

Because CIS just issued its instructions today on a stakeholders call, those petitions filed in the interim will not have evidence necessary to make a determination regarding the fees. These petitions are being held in abeyance until guidance is provided to the Service Centers.

The definition of an "employer" for the purpose of determining whether the fee applies is the regulatory definition in the H-1B context (8 C.F.R. 214.2(h)(4)(ii)).

The definition of "employee" includes all employees working in the United States and does not include employees abroad.

An employee will be considered to hold L status for the purpose of this count if she is in L-2 status and is working with an EAD.

The law was passed to apply to companies that are heavy users of the H and L programs, particularly contracting firms that seem to be the current target of government concern. Because of many as-yet unanswered questions and adjudication delays, many other companies will end up being affected by the law, however.

The Department of State has not determined as yet how the fee will be handled for L Blanket visa applicants. Presumably, if the fee applies, the $2250 fee will need to be paid (in addition to the $500 anti-fraud fee) at the consulate.

If you have questions about whether your company will need to pay the additional fee, please let us know.