If you have filed an H-1B visa since August 14, 2010, or if you plan on filing an H-1B visa cap or transfer petition, listen up. Under the newly enacted Public Law 111-230 signed into law by President Obama on August 13, 2010, certain H-1B and L nonimmigrant visas are required to be submitted with an additional $2,000 fee! This article explains who is affected by the new law and examines recent USCIS guidance on how to deal with the new fee.
H-1B Fee According to Public Law 111-230
On Aug. 13, 2010, President Obama signed into law 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 postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.
These additional fees apply to petitioners who employ 50 or more employees in the United States with 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. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
- Initially to grant an alien nonimmigrant status (i.e., a “cap” case), or
- To obtain authorization for an alien having such status to change employers (i.e., an H-1B tranfer petition).
The USCIS Stakeholders Meeting Discussion: How to Deal with Public Law 111-230
On August 19, 2010 USCIS held a stakeholders meeting via a teleconference to provide guidance on implementation of the new Public Law 111-230. The first major component of the meeting noted that the new fee is applicable only for certain H-1B and L petitions postmarked on or after August 14, 2010. Hence, if your petition was postmarked on August 13, 2010, you are not subject to the new fee even if you otherwise meet the guidelines.
Consequences for H-1B Employers
Basically, Public Law 111-230 applies to H-1B dependent employers with more than 50 employees and to cap H-1B cases and transfers. H-1B dependency will be attested to on the Labor Conditions Application (LCA). It means the employer has more than 50% of the workforce employed on H-1B nonimmigrant status. Full and part time employees are counted towards whether or not the employer is H-1B dependent. The new law also only applies for cap cases and transfer petitions. It does not apply to an extension of stay with the same employer.
Furthermore, the increased fee of $2,000 is in addition to the H-1B filing fee, the fraud fee, the education and training fee (and the optional premium processing fee). In the stakeholder meeting, the Service stated that it would prefer a separate check made out to “Department of Homeland Security” for the new fee. The memo line of the check should state, “Public Law 111-230 fee.” USCIS also stated that to be consistant with the congressional intent, the fee should be paid by the petitioner.
How to Avoid a Request for Evidence (“RFE”) on the New Fee
USCIS discussed the RFE issues associated with the new fee. It said that petitioners who believe the new fee applies to them should wait for an RFE whereupon they will be given 30 days to pay the new fee or explain why it does not apply. USCIS stated that it will not reject the H-1B petition without the fee. But without an explaination, USCIS will issue an RFE asking that the petitioner pay the fee or explain why there is none required.
Basically, if you believe you may be subject to the new fee (or may not be!) USCIS urges you to include an attestation stating whether or not the new fee applies. Petitioners who are H-1B dependent (i.e., greater than 50% of its workers are on H-1B) who have more than 50 employees who also believe the fee does not apply need to state why the fee does not apply. The new law also only applies for cap cases and transfer petitions. It does not apply to an extension of stay with the same employer.
USCIS urges Petitioner’s to write clearly on the cover letter whether the fee applies to them. For example, on the top of the cover letter, petitioners should write “NOT SUBJECT TO PUBLIC LAW 111-230.” Then, a brief statement why the fee does not apply should be in the body of the cover letter. Petitioner’s should draft a statement such as:
Public Law 111-230 requires a $2,000 filing fee with certain H-1B petitions filed by companies of more than 50 employees, more than 50% of whom are on H-1B. In this case, Petitioner employs more than 50 employees; however, their workforce is not comprised of more than 50% H-1B workers. Therefore, this petition is not subject to the new fee.
This would be appropriate for a cap or transfer petition filed by a non-H-1B dependent employer. An H-1B dependent employer should write a statement that this is not a cap or transfer H-1B petition, which would be sufficient to rebut the presumption of the fee’s applicability.
Finally, petitioners should include whatever evidence it deems appropriate along with this attestation. For example, to show that you are not H-1B dependent, submit the LCA with the attestation that you are not H-1B dependent. USCIS promises that it will provide further guidance on what evidence it expects to receive. USCIS is also preparing a new Form I-129 which will include questions pertaining to Public Law 111-230 which will help petitioners in determining whether the law is applicable to them.
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