DHS Expands 9-11 Biometric Fee to More H-1B and L-1 Extension Petitions

The change affects large employers that rely heavily on H-1B and L-1 workers and is expected to increase fee obligations for many extension petitions that were previously exempt.

What Is Changing?

Under the new rule, DHS will require certain employers to pay the 9-11 Biometric Fee for all H-1B and L-1 extension petitions, even when the foreign national remains with the same employer.

Previously, DHS generally required the fee only for:

• Initial H-1B or L-1 petitions; and
• Change-of-employer petitions.

The final rule changes DHS’s interpretation of the statute and extends the fee requirement to extension petitions that do not involve a change of employer.

Which Employers Are Affected?

The fee applies only to covered employers, defined as employers that:

• Have 50 or more employees in the United States; and
• Have more than 50% of their U.S. workforce in H-1B, L-1A, or L-1B status.

Employers that do not meet both thresholds are not subject to the fee.

Fee Amounts Remain the Same

The final rule does not increase the existing fee amounts.

Covered employers must pay:

• $4,000 for qualifying H-1B petitions; and
• $4,500 for qualifying L-1 petitions.

The rule simply expands the types of petitions subject to those existing fees.

Limited Exception for Certain Amended Petitions

DHS clarified that amended petitions that do not request an extension of status are exempt from the expanded fee requirement.

As a result:

• Amended petitions without a status extension request remain exempt.
• Extension petitions generally remain subject to the fee if filed by a covered employer.

Why DHS Says the Rule Is Necessary

According to DHS, the rule corrects what the agency now believes was an incorrect interpretation of congressional intent.

The agency argues that Congress intended the fee to apply broadly to extension petitions and that additional collections are necessary to support DHS’s biometric entry-exit programs, including facial recognition and traveler verification systems used at U.S. ports of entry.

DHS states that the fee supports:

• Biometric entry-exit operations;
• Traveler Verification Service (TVS) technology;
• Identity verification programs;
• Entry-exit overstay monitoring; and
• Broader national security initiatives.

Impacts

Employers that qualify as covered employers should review their H-1B and L-1 extension strategies carefully.

The rule is likely to increase immigration sponsorship costs for:

• Technology companies;
• Global consulting firms;
• IT services providers;
• Multinational employers; and
• Other organizations with large H-1B and L-1 populations.

Organizations filing routine extension requests for the same employee will now face additional filing costs that previously may not have applied.

Erickson Insights and Analysis

The litigation remains ongoing, and additional rulings are expected. Erickson Immigration Group will continue monitoring developments and sharing updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.