USCIS Addresses H1B and L-1 Fee Increase

The USCIS held a public teleconference today, August 19, 2010, to outline some of the details regarding the new fee increase contained in the 2010 Border Security Supplemental Appropriations Act. The USCIS plans to issue written guidance shortly and is continuing to consider some of the nuances of this change. The information below is based on the statements of various government officials during the public teleconference.

Applies to Cases Transmitted August 14, 2010 or Later

What is clear is that the law applies to those employers who have 50 or more employees in the United States, with a workforce containing more than 50 percent H1B or L workers. The fee is a single fee, in the amount of $2,000 for H1Bs and $2,250 for L-1s. The USCIS will apply the fee increase to cases post-marked or transmitted via Federal Express or other non-U.S. Post Office carrier on August 14, 2010 or after.

USCIS Will Issue RFEs

According to the USCIS, cases filed without the new fee will not be rejected at this time. The USCIS stated that they will issue requests for evidence (RFEs) for cases for which the new fee appears to be required. Employers will need to respond with the fee or proof that the fee is not appropriate. The USCIS is asking employers to wait for the RFE, rather than sending unsolicited fee payments or documents.

Pay if Fraud Fee Required: Not Extensions with Same Employer

The USCIS is in the process of revising the current H-1/L-1 forms to address the new fee. The fee will not have to be paid for all H1B and L-1 cases filed by the subject employers. The USCIS stated that it is only required in those instances where the fraud fee is also required. Thus, it is needed for initial H1B or L-1 employment, and for change status of employer cases. It is not needed if an employer is seeking to extend H1B or L-1 status for an existing employee.

Count L-2s Toward the 50% H1B or L-1 Workforce

The USCIS interprets the law regarding the calculation of employees in H1B or L status to include L1A, L1B, and L-2 employees. L-2 dependants of L-1s are eligible for employment authorization documents (EADs). The USCIS recognized the difficulty for employers in adding such individuals into the count, but concluded that it is required under the law.

Suggestion: Separate Check

The USCIS is encouraging employers to include the additional fee as a separate check, rather than adding this amount to the other filing fee checks. The reason is that, if the fee is not required, the USCIS can still accept the case and simply return the check.

More to Come

As mentioned above, there remain many additional details. Some of these were discussed, and will be explained further in an upcoming article for MurthyDotCom and MurthyBulletin readers. One question that was raised several times, which must be addressed by the U.S. Department of State (DOS) is whether it will be necessary to make an additional payment in connection with visa applications made abroad under blanket L-1 petition approvals. Other issues are yet to be resolved by the USCIS, as they try to implement this new law and the non-standard manner of establishing a filing fee. Much of the information in the teleconference was given in the form of reading from a prepared script. Thus, it was clear that the USCIS had analyzed many of the issues and reached conclusions, based upon their reading of the law and various policy considerations. There were valid concerns raised by some teleconference participants about logistics and other details. We will continue to provide all the latest news on this topic.