USCIS is re-interpreting the Public Law 113-114 to charge employers $4000/$4500 for every H-1B/L-1 extension filed effective October 2, 2020

August 6, 2020
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As per the current interpretation of the Public Law 113-114, H-1B and L-1 employers who employ 50 or more employees in the United States with a workforce of more than 50% in H-1B, L-1, or L-1B status are subject to an additional filing fee of $4,000 or $4,500 for new petitions. This includes the new employment (Change of Status or consular process) and  also the change of employer.  The Public Law fee 113-114 commonly known as Border Security Fee was not required for the extension petitions.    However, on July 31, 2020 the Department of Homeland Security announced a final rule that adjusts fees for certain immigration and naturalization benefit requests to ensure U.S. Citizenship and Immigration Services recovers its costs of services. Under the final rule, All the petitioners who are filing an H-1B or L-1 petition will have to pay the $4000/$4500 for all the Petitions except an amended petition without an extension of stay request. DHS has reinterpreted the Public Law 113-114 the original language of which did include the “application for an extension of such status”.  This could potentially make it difficult to successfully challenge this in a court of law.                                                                       Based on the language in the proposed rule, it appears that the USCIS has taken the position that the language in the law, which imposes the $4,000 and $4,500 filing fees, was not interpreted properly in the past, and that based on the USCIS' new interpretation of the language contained within the law imposing these fees, the $4,000 and $4,500 filing fees should be required to be paid by employers when filing extension petitions for H-1B and L-1 workers. Given that the USCIS has for years imposed the $4,000 (H-1B) and $4,500 (L-1) filing fees only for initial H-1B and L-1 petition filings, respectively, it seems unusual for the government to now changing its interpretation.  ITServe Alliance along with its members filed a lawsuit on January 26, 2020 seeking the USCIS to refund the $4000/$4500 Border Security fee claiming that the fee is required only for those who are seeing an entry to the United States for the first time and does not apply to the Change of Employers.  The lawsuit was seeking the court to force the USCIS to refund more than $350 million which they have collected in Public Law fee. Now the USCIS is reinterpreting the language of the rule after more than 4 years to force the  qualified employers to pay the Public Law fee for every petition that they file from October 2, 2020. 

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