On August 13, President Obama signed into law Public Law 111-230 which requires the submission of an additional $2,000 in filing fees for some H-1B petitions and an additional $2,250 for certain L-1A/L-1B petitions. The fee increase applies to covered petitions with a postmark date of August 14, 2010 or later.

The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of those employees working in the United States pursuant to H-1B, L-1A or L-1B nonimmigrant status.

H-1B petitioners subject to this new fee are required to submit the fee with any H-1B petition filed (i) to request initial nonimmigrant status for a foreign national employee or (ii) to obtain authorization for a foreign national already in valid H-1B status who seeks to change employers (otherwise known as an H-1B transfer).

Similarly, L-1 petitioners subject to the new law must submit the additional fee with an L-1A or L-1B petition filed (i) to seek initial L-1 nonimmigrant status for a foreign national or (ii) to obtain authorization for a foreign national already in valid L-1 status who seeks to change employers.

USCIS recently advised that the petitioner, not the beneficiary, should pay the additional fee, in cases where the additional fee is required.

How To Determine Whether Your Business Qualifies For The Additional Fees Required By Public Law 111-230:

USCIS has advised that all employees, whether full-time or part-time, will count towards the calculation of whether your business is subject to the new fee.

When calculating the percentage of employees in H-1B or L-1 nonimmigrant status, USCIS will calculate the percentage of nonimmigrant workers in the petitioning employer's workforce to the number of employees in the United States, not by the number of employees worldwide.*

USCIS further advised that all employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward this calculation.

Finally, USCIS advised that the new fee does not apply to derivatives of H-1B or L-1 nonimmigrant workers.



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Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP