A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, August 20, 2010

New law increases H-1B and L visa fees by $2000-$2250 for some employers

A new law recently signed by President Obama on Aug. 13, 2010 has added an additional fee for the filing of H-1B and L-1 visa petitions by certain employers.  This law affects mostly medium and large companies which employ 50 or more employees and has more than 50% of its employees who are in H-1B or L nonimmigrant visa status.  They now have to pay $2000 additional for filing an H-1B petition and $2250 additional for filing a L-1 visa petition.  The H-1B visa program is designed for U.S. employers to hire professional employees such as engineers, computer professionals and accountants for a temporary period of time.  The L-1 visa is designed for multi-national companies to transfer their executives, high-level managers and employees with specialized knowledge to work in the U.S. 

When is this new law become effective?
This new law, Public Law 111-230 became effective upon signing on August 13, 2010.  The USCIS has issued guidance that H-1B and L-1 petitions postmarked on or after Aug. 14, 2010 are subject to the new fees.  The new law will remain in effect through September 30, 2014.

Which employers must pay the new fees?
Employers with 50 or more employees in the U.S. and has more than 50% of its workforce who are in H-1B or L visa status are subject to the new fees.  The number of employees and their immigration status are determined at the time of filing. 

How much are the additional fees?
For H-1B petition, the additional fee is $2000.  For L-1A or L-1B petitions, the additional fee is $2250.  This new fee is additional to the current filing fee for the Form I-129, the fraud prevention fee, and the ACWIA fee (retraining fee).  It is recommended that a separate check be issued for the new fee.

What types of petitions are covered?
Employers who are filing an initial application for a new H-1B or L employee must pay these new fees.  This is so even if the employee is already in H-1B or L status.  Subsequent filings for extension or amendments are exempt from the new fees.

Which employees are counted in the 50/50 calculation?
All employees of a petitioning employer in the U.S. including full-time and part-time employees are counted, excluding consultants and contractors.  The USCIS in a stakeholder meeting held on 08/19/2010 opined that even L-2 dependents should be counted towards the calculation of whether or not there is 50% of employees who are in H1B/L status.

What happens to the applications that have been filed without the new fees?
The USCIS will put these petitions on hold unless it is clear from the record that they are exempt from the new fees.  If it is determined that a petition is subject to the new fee, a Request for Evidence will be issued to the employer.  Failure to respond to the RFE will result in the denial of the petition.

Who may pay the new fees?
The USCIS has stated that the employer should pay the new fees, consistent with the legislative intent behind the new law to detect and prevent fraud.

Will there be a new form designed for this new fee?
The USCIS is revising its I-129 form now. Before the new form is ready, the USCIS recommends that all petitioners either include the new fee or a statement and other evidence explaining why this new fee does not apply. Also a bold capital notation should be included at the top of the cover letter. An RFE may be required if USCIS needs additional information or evidence to determine if the new fee is required.

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