United States | DHS proposes regulation expanding application of 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 visas

The Department of Homeland Security published a proposed regulation today to amend and clarify regulations on the 9-11 Response and Biometric Entry-Exit Fee (9-11 Biometric Fee) for H-1B and L-1 visas. The 9-11 Biometric Fee only applies to petitioning employers with 50 or more employees, with more than 50% of employees in the U.S. in H-1B or L-1 nonimmigrant status.

Key Points:

• The proposed regulatory changes would codify the agency’s interpretation of ambiguous statutory language to require:
  • Covered employers submit the 9-11 Biometric Fee for all extension-of-stay petitions, including those that do not involve a change of employer.
  • The 9-11 Biometric Fee be submitted for these petitions regardless of whether a Fraud Fee applies.
• The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status or change of employer.
• Public comments must be received by July 8 and can be submitted here.

Additional Information: DHS states in the proposed regulation that these changes will help DHS comply with its congressional mandate to implement a biometric entry-exit data system. The proposed regulation can be read here in its entirety.

BAL Analysis: Any changes to fee requirements for covered employers would not take effect until after DHS considers the comments it receives and issues a final regulation. This fee only applies to companies with 50 or more employees, with more than 50% of employees in the U.S. in H-1B or L-1 status. Currently, on top of other filing fees, covered employers pay $4,000 extra for each H-1B petition and $4,500 extra for each L-1 (for initial petitions and change-of-employer petitions), but not extensions of stay with the same employer.

This alert has been provided by the BAL U.S. Practice Group.

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