On August 13, 2010, President Obama signed into law the Border Security Emergency Supplemental Appropriations Act of 2010. This law includes a substantial increase in fees for certain H-1B and L-1 visa petitions. The following fee changes have been imposed for employers who have 50 or more employees in the U.S., and more than 50% of those employees working in H-1B and/or L-1 nonimmigrant visa status:

• Fees for an H-1B visa would be increased by $2,000 per initial application, raising the total filing fees for a new H-1B visa to $4,320, without premium processing
  
  
• Fees for an L-1 visa would be increased by $2,250, raising the total filing fees for a new L-1 visa to $3070, without premium processing

The filing fee increases will expire on September 30, 2014.

For persons applying for L-1 visas at a U.S. Consulate under a blanket L approval, these fees would likely be collected by the U.S. Consulate, similar to how the consulates currently collect the $500 anti-fraud fee. As of today, the Department of State has not issued any guidance on how they will implement the Border Security Act when issuing L visas pursuant to blanket L petition.

At an August 19 teleconference, USCIS advised that the additional fees would only apply to new H-1B and L-1 petitions, not for extensions with the same employer. USCIS advised that because the law was effective upon signing on August 13, they would be applying the law to any pending H-1B or L-1 petition with a postmark date of August 14, 2010 or later. Petitions that may be subject to the law are currently being held in abeyance at USCIS, and USCIS will be issuing requests for evidence (RFE) on these petitions to determine whether the additional fee applies. If the fee applies, the petitioner will be required to submit a check for the additional fee before the case can be adjudicated. If the fee does not apply, the petitioner will need to present documentation to demonstrate that it is not subject to the fee and why.

It is important to note that few employers will actually be subject to these new fees imposed by the Border Security Act. The act does not raise H-1B and L-1 fees for all employers, only for those employers who have 50 or more employees in the U.S., and 50% or more of those employees are on H-1B, L-1 and L-2 visas, in aggregate. Most U.S. employers do not have the majority of their employees on H-1B or L visas, and will therefore be unaffected. However, all employers filing new H-1B and L-1 petitions may experience delays in processing their petitions at USCIS as the Service implements this law, particularly if the employer has more than 50 employees. Jackson & Hertogs will be contacting clients who may be impacted by the new law, and working to gather any necessary documentation to meet the USCIS evidentiary requirements.

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