US Visa: Expansion of 9-11 Response Fee proposed to be included in H-1B Renewal

The Department of Homeland Security (DHS) proposes to amend and clarify the regulations concerning the 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee).

DHS proposes to amend the regulations to specify that the 9-11 Biometric Fee will apply to all H-1B and L-1 extension-of-stay petitions in addition to all previously covered H-1B and L-1 petitions.

Accordingly, DHS proposes to replace the phrase “certain petitioners” with “all petitioners” concerning both H-1B and L-1 petitioners. This proposed change will allow DHS to charge all covered petitioners the 9-11 Biometric Fee, including those seeking extension petitions that do not involve a change of employer, as opposed to only those petitioners whose petitions are also subject to the Fraud Fee.

H-1B status is a nonimmigrant classification for noncitizens who work in certain specialty services or occupations. L-1 status allows companies to seek a temporary intracompany transfer of certain noncitizen employees who perform executive or managerial functions or have specialized knowledge.

The proposed regulatory changes would clarify DHS’s interpretation of ambiguous statutory language to require that covered employers submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer.

Covered employers” are those employers with more than 50 employees in the United States and where more than 50 percent of the employees in the United States are in H-1B or L-1 nonimmigrant status.

Under the proposed regulations, covered petitioners filing an H-1B or L-1 amended petition that does not include an extension of stay request would not be required to submit the 9-11 Biometric Fee.

The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status. The proposed changes will also help DHS comply with its congressional mandate to implement a biometric entry-exit data system.

On December 18, 2015, Congress established the “9-11 Response and Biometric Entry-Exit Fee” for certain H-1B and L-1 petitions (9-11 Biometric Fee).

The amount of the 2010 Supplemental Fee was doubled for the 9-11 Biometric Fee to be $4,000 and $4,500 for H-1B and L-1 petitions, respectively.

At the same time, Congress also established the 9-11 Response and Biometric Exit Account (9-11 Biometric Account), into which 50 percent of the funds from the 9-11 Biometric Fee collections are deposited, up to $1 billion.

Congress expressly intended for the 9-11 Biometric Fee to fund the biometric entry and exit programs it mandated earlier in order to improve security, combat visa and travel document fraud, and protect country against terrorism.