On August 13, 2010, President Obama signed into law Public Law
111-230, which requires employers with 50 or more employees and
more than 50% of their U.S. workforce on H-1B or L visas (L-1A,
L-1B, L-2) to pay additional fees of $2,000 to $2,250 per visa
application. The increased fees are effective immediately, and will
remain in effect through September 30, 2014. The increased fees are
in addition to the standard filing fees for H-1B and L-1 visa
processing and fees for expedited ("premium") processing
of H or L visa petitions.
U.S. Citizenship and Immigration Services ("USCIS")
recommends that all petitioners for H-1B or L-1 visas submit the
additional fees or a statement or other evidence that the
employer's workforce does not meet the 50 employee/50% H-1B or
L-1 workforce threshold. If the initial filing does not include the
additional fee or explanation/documentation as to why it does not
apply, USCIS may issue a Request for Evidence to determine whether
the petition is covered by the new law.
Specific Fees and Additional Information
H-1B
- $2,000.00 fee in addition to $320.00 I-129 fee; $1,500.00 ACWIA fee; $500.00 fraud fee; and $1,000.00 premium processing fee.
- Applies to initial H-1B petitions or H-1B change of employer petitions.
- Exempt from fee increase: Extensions for continued employment of an H-1B worker with the same employer.
L-1
- $2,250.00 fee in addition to $320.00 I-129 fee; $500.00 fraud fee; and $1,000.00 premium processing fee.
- Applies to initial L-1 petitions or L-1 change of employer petitions.
- Exempt from fee increase: Extensions for continued employment of an L-1 worker with the same employer.
- L-1A, L-1B and L-2 spouses with work authorization cards are counted toward the 50 employee/50% H-1B or L-1 workforce calculation.
- In determining if 50% or more of its U.S. workforce is on H-1B or L visas, all employees working in the U.S. are counted, regardless of whether they are on the employer's U.S. payroll.
- L-2 spouses with work authorization cards are exempt from the fee increase, but are counted toward the 50 employee/50% H-1B or L-1 workforce calculation.
The 50 employee/50% H-1B or L-1 workforce calculation should reflect the workforce at the time that the L or H petition is filed.
H-1B or L-1 workers who are working in the US on employment authorization cards based on pending adjustment of status applications for U.S. permanent residency are not subject to the 50 employee/50% H-1B or L-1 workforce calculation and do not have to be counted.
The employer must pay the additional fee, not the H or L worker.
The employer must submit a written attestation and evidence that the employer is not subject to the increased fee. Specific forms of evidence have not been established by USCIS to date. USCIS is in the process of revising the H-1B and L-1 petition form (Form I-129) to reflect the fee increases and documentation required by Public Law 111-230. A 30-day Request for Evidence will be issued for any H-1B or L petition submitted without the additional fees in which USCIS cannot readily determine that the petition is not subject to the fee increase. If the employer does not submit evidence to prove that the increased fee does not apply within 30 days, the H-1B or L-1 petition will be denied.
O'Melveny & Myers LLP routinely provides advice to clients on complex transactions in which these issues may arise, including finance, mergers and acquisitions, and licensing arrangements. If you have any questions about the operation of the applicable statutory provisions or the case law interpreting these provisions, please contact any of the attorneys listed on this alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
