H-1B Fees Dramatically Increased for H-1B/L-1 Dependent Employers

In a sudden and surprising move, a number of immigration-related provisions were inserted into the must-pass government funding bill, titled “Consolidated Appropriations Act, 2016”   The bill passed both the House and the Senate and was signed into law by President Obama on December 18, 2015.  One of the more significant immigration-related provisions is the significant filing fee increase for H-1B and L-1 employers who have more than 50 employees of which 50% are on H-1B or L-1 status.    The additional filing fee is $4,500 for L-1 petitions and $4,000 for H-1B petitions.

H-1B and L-1 Fee Provisions in the Consolidated Appropriations Act, 2016

The H-1B fee increase was added as part of a Title relating to 9-11 victim compensation fund and the funding of an entry-exit biometrics program for travelers to and from the United States.    Section 411 of this Title, “9-11 Response and Biometric Entry-Exit Fee” reads as follows (emphasis added),

(a) Temporary L-1 Visa Fee Increase- Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), including an application for an extension of such status, shall be increased by $4,500 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) of such Act.

(b) Temporary H-1b Visa Fee Increase- Notwithstanding section 281 of the Immigration and Nationality Act (8 U.S.C. 1351) or any other provision of law, during the period beginning on the date of the enactment of this section and ending on September 30, 2025, the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including an application for an extension of such status, shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.

We have added some underlining to draw attention to a number of points raised by this provision.

An Additional $4,500 L-1 Fee Applies to Initial and Transfer Petitions

Employers with more than 50 employees (of which 50 percent are on H-1B or L-1 status) will have to pay an additional filing fee of $4,500 on top of the current L-1 filing fees.    This fee will apply for initial L-1 filings and for transfers.   The additional L-1 fee will apply starting the enactment of the bill, December 18, 2015, until September 30, 2025.

An Additional $4,000 H-1B Fee Applies to Initial and Transfer Petitions

Similarly, employers with more than 50 employees (of which 50 percent are on H-1B or L-1 status) will have to pay an additional filing fee of $4,000 on top of the current H-1B filing fees.    This fee will apply for initial H-1B filings and for transfers.   The additional H-1B fee will apply starting the enactment of the bill, December 18, 2015, until September 30, 2025.

Effective Date of New Increased Filing Fees

USCIS has confirmed that According to the bill, the new increased filing fees will start to apply starting from the “date of the enactment” which, according to USCIS should mean the date the law was signed into law by the President (which was December 18, 2015).   Our office is working on confirming the effective date of the new fees and will confirm as soon as we have confirmation from USCIS and other sources.

Update (January 12, 2016):   USCIS has confirmed that, as we expected, the new additional fees will apply to all cases postmarked on or after December 18, 2015.

How to Count The Number of Employees?

USCIS has not provided guidance with respect to how they will require employers to count employees for these new provisions.  In fact, USCIS has not provided any guidance yet on the implementation of these increased filing fees but we expect some guidance over the next few days and we will report as soon as we have any news.   However, we can look back at Public Law 111-230 (which had almost identical increased filing H-1B and L-1 fees) for guidance.   Previously, in the context of Public Law 111-230 employee calculation, USCIS had confirmed that they will count all employees – whether part-time or full-time.    Here’s what USCIS indicated in 2010 about Public Law 111-230 employee count calculation:

Q14. How will USCIS define “employee” for purposes of implementing Public Law 111-230?
A14. All employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee.

Since the new increased fee provisions are parallel to the Public Law 111-230 provisions, we expect that USCIS will take a similar approach in counting the employees and will require employees to count all employees, both part-time and full-time.

An Unpleasant Holiday “Surprise”?

The timing and magnitude of these additional fees caught many by surprise.   The text of the 2000-page must-pass government funding bill was released on Wednesday, December 16, and the bill was passed very promptly by both the House and the Senate before it was signed into law by President Obama in December 18, 2015, a Friday.   This kind of timing for a must-pass bill of 2000 pages makes it extremely difficult for anyone to even understand what is in it, leave alone to be able to react to certain of the bill’s provisions.    Even over the weekend after the bill’s enactment, our office is working and advising affected clients on best strategies in response.   We anticipate that there will be a significant increase in the magnitude of reactions to these provisions over the following days and weeks.

Conclusion

We understand that the timing and magnitude of these new H-1B fee provisions impose an undue and unexpected burden to a number of H-1B and L-1 employers,  including many of our clients.    We are working on helping affected companies devise plans for response to these new fees, including structuring of H-1B and L-1 petition filings and government outreach.    Similar to the way our office handled the Public Law 111-230 fee increase, our office stands ready to assist current and new H-1B and L-1 employers clients in navigating this new challenge.

Please contact us to discuss your situation with out of our attorneys.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.