Legislative lowdown: DHS will impose additional fees on H-1B, L-1 employers

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After a federal judge in June blocked a $100,000 fee that would’ve significantly raised the cost of H-1B visa petitions, the Trump administration is continuing to issue policies that may nonetheless make the sponsorship process more costly for employers.

On Aug. 10, the Department of Homeland Security (DHS) published a final rule requiring certain employers to pay fees toward a biometric entry-exit system in cases where they were previously exempt.

The rule, which takes effect Sept. 9, applies to employers with 50 or more employees who employ more than one-half of their workers on either H-1B or L-1 visas.

Since 2015, these employers have had to pay a $4,000 or $4,500 fee for H-1B and L-1 visa petitions, respectively. According to the DHS, the supplemental fees are intended to help the department implement an automated biometric system for immigrants entering or departing the US—a priority that dates back to the Intelligence Reform and Terrorism Prevention Act of 2004.

Previously, covered employers were only required to pay these fees when submitting H-1B or L-1 petitions that also included a separate fraud prevention and detection fee, in cases where their employees were seeking visa status for the first time, or when these employees changed employers.

The new rule expands the cases under which employers will have to pay these fees. Companies will be required to pay them not only when they first seek to sponsor an employee on a H-1B or L-1 visa, but also when they file extension petitions to keep these workers in the US for longer. The fee will apply to all status extension petitions, regardless of whether the employer is also subject to a fraud prevention and detection fee.

DHS contends that the rule better aligns with Congress’s intent when it passed the original statute requiring these fees, and will help the agency meet its congressional mandates.

The American Immigrant Lawyers Association, which opposed the DHS rule in a public comment before it was finalized, argued that it would disproportionately impact small businesses. “Potentially imposing hundreds of thousands of dollars in additional fees could affect their ability to maintain and/or expand their businesses, resulting both in lost jobs for foreign born and US workers as well as decreased tax revenue,” the organization wrote.

Zoom out. This DHS rule is the latest in a series of Trump administration policies that appear to make the process of hiring immigrant workers more costly and complex.

Enrollment in the H-1B lottery was down as of mid-February, a likely knock-on effect of a $100,000 petition fee that has since been blocked by a federal judge.

A proposed rule issued by DHS on Aug. 6 may further weaken the H-1B talent pipeline, as it would eliminate the 60-day grace period that allows these visa holders to stay in the country legally and look for new work after losing a job.

DHS also recently let work permits expire for more than 350,000 immigrants from countries including Haiti and Syria who had been living under Temporary Protected Status. That move, which came after a favorable Supreme Court decision, prompted employers such as the city of New York to dismiss employees affected by the policy.