U.S. Citizenship and Immigration Services (USCIS) has provided preliminary guidance as to how it will implement the L-1 and H-1B fee provisions of the Emergency Border Security Supplemental Appropriations Act of 2010, signed into law on August 13, 2010, and effective immediately.
USCIS confirmed that petitioners who employ more than 50 persons in the United States, and whose U.S. workforce is comprised of more than 50% H-1B or L nonimmigrant workers (the “50/50 rule”) are subject to the new fees. Only persons employed by the petitioner within the geographic confines of the United States should be counted; however, both part-time and full-time employees must be counted in determining the workforce and percentage of H-1B and L visa holders. In terms of calculating the percentage of L visa holders, petitioners must include L-2 visa holders working pursuant to an Employment Authorization Document (EAD), in addition to L-1A and L-1B visa holders.
Petitioners subject to the 50/50 rule must submit a supplemental L-1 filing fee of $2,250 for initial petitions to grant a foreign national L-1 status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in L-1 status.
Likewise, petitioners subject to the 50/50 rule must submit a supplemental H-1B filing fee of $2,000 for initial petitions to grant a foreign national H-1B status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in H-1B status. The fee is required for those covered petitions postmarked on or after August 14, 2010.
The supplemental fees are not required for petitions to extend or amend H or L status of a foreign national already employed by the petitioner, or for derivative beneficiary (H-4, L-2) applications. Although L-2 visa holders working pursuant to an EAD must be included when determining the percentage of L visa holders in the U.S. workforce, these foreign nationals are not required to pay any supplemental filing fees when filing applications for L-2 status or EADs.
USCIS declined to comment on how the Department of State may implement the new fee requirements for L-1 blanket petitions filed at U.S. consulates abroad.
Companies should work closely with immigration counsel to determine the law’s applicability to its petitions and how best to present petitions to USCIS if not subject to the new fee requirements in order to minimize delays in adjudication.
Gibney will continue to monitor this matter and provide updates as they become available.
If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.
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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.