On June 6, 2024, the Department of Homeland Security (DHS) announced proposed amendments to the regulations concerning the $4,000 fee that is applicable to companies with more than 50 employees and have more than 50% onH-1B or L-1 visas. This is more formally known as the 9-11 Response & Biometric Entry-Exit Fee for H-1B and L-1 visas. Employers that are subject to this fee, or may become subject to this fee in the future, need to be aware of this proposal, consider the potential impact on their business, and consider submitting comments stating their position.

The 9-11 Response & Biometric Entry-Exit Fee, commonly referred to as the 9-11 Biometric Fee, was established to fund biometric entry and exit programs mandated by Congress to enhance national security and prevent visa and travel document fraud.

What is the fee and what is proposed?

Public Law 114-113 created a fee that requires certain petitioners to pay an additional fee of $4,000 for certain H-1B and L-1 petitions. DHS has previously interpreted this law to apply to petitions for new employment, for changes of status to H-1 or L status, or for transfers/changes of employer. In DHS’ view, the Public Law 114-113 $4,000 fee is required whenever the $500 fraud fee is required. Interestingly there is ongoing litigation against the application as it stands which argues that the plain text of Public Law 114-113 means that the fee should only apply for petitions when an individual first seeks to enter the US, not changes of employer of changes of status.

In the proposed regulation, DHS proposes to expand this fee and require the $4,000 fee to all extension requests as well. Notably, the proposal does not expand which type of companies must pay the fee, as that is statutory, but seeks to expand applicability.

Background and Purpose of the Proposed Regulation

The proposed regulatory changes seek to clarify that employers must pay the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, thereby including extensions that do not involve a change of employer. This means that in addition to new employment, change of status, or change of employer petitions, companies that meet the requirements would have to pay this fee for all extension requirests as well. DHS alleges that this clarification aims to align the regulation with the original legislative intent and ensure consistent funding for DHS’s biometric systems.

Key Aspects of the Proposed Regulation

1. Expansion of Fee Application:

1. • The proposed changes stipulate that the 9-11 Biometric Fee applies to all extension-of-stay petitions for H-1B and L-1 visas, not just those involving a change of employer.
2. Funding Allocation:
   • DHS claims that the funds collected through the 9-11 Biometric Fee support DHS’s efforts to implement and maintain a comprehensive biometric entry and exit system, enhancing national security and travel document verification processes.
3. Clarification of Ambiguities:
   • DHS claims that the regulation clarifies ambiguities in the statutory language to ensure that all relevant extension petitions are subject to the fee, thereby avoiding any loopholes that could undermine the funding and implementation of biometric systems.

Implications for Employers

The proposed regulatory changes could have significant implications for employers who rely on H-1B and L-1 nonimmigrant workers to supplement their employment. The fees would drive up costs significantly on top of the increase of fees that occurred on April 1, 2024.  Employees may also be impacted as some employers may be less likely to file extensions, which is especially harmful given the green card backlog situation. Understanding these implications is crucial for effective compliance and planning.

1. Financial Impact:
   • Employers will need to budget for the 9-11 Biometric Fee for all extension-of-stay petitions, not just for new employment or changes in employer. This could result in increased costs for companies with a substantial number of H-1B or L-1 employees.
   • For large companies with many foreign workers, this increase in fees could amount to a significant financial burden, potentially affecting hiring decisions and overall business strategies.
2. Administrative Burden:
   • The process of ensuring compliance with the new fee requirements will likely increase the administrative workload for HR departments. Employers will need to update their processes and systems to track and pay the appropriate fees for each relevant petition.
   • This may involve training staff on the new requirements, updating internal policies, and possibly seeking external legal or consulting assistance to ensure full compliance.
3. Strategic Workforce Planning:
   • Companies may need to reconsider their workforce strategies. This could lead to exploring alternative visa categories that may not be subject to the same fees.
   • Strategic decisions regarding the extension of existing employees’ stays will need to account for the added costs, potentially influencing whether companies opt to extend contracts or seek new hires.

Steps for Employers to File Comments

To ensure that your voice is heard in the rulemaking process, follow these steps to file comments on the proposed regulation:

1. Understand the Proposal:
   • Read the full notice of proposed rulemaking to understand the details of the regulation and its implications for your business.
2. Gather Information:
   • Collect relevant data, experiences, and viewpoints from your organization that relate to the proposed changes. This may include the potential impact on your business operations, cost implications, or any challenges faced with current biometric fee requirements.
3. Draft Your Comments:
   • Draft a clear, concise, and well-supported comment. Reference specific portions of the proposed rule, explain the reason for any recommended changes, and include data or authority that supports your suggestions.
4. Submit Your Comments:
   • Submit your comments through the Federal eRulemaking Portal at regulations.gov. Ensure you include the docket number USCBP-2024-0009 in your submission.
   • Comments must be received by July 8, 2024.
5. Follow Submission Guidelines:
   • Ensure your submission adheres to the detailed instructions provided in the “Public Participation” section of the supplementary information in the notice of proposed rulemaking. All comments received will be posted without change, including any personal information provided.

Example Comment Structure

Here is a suggested structure for your comment:

1. Introduction:
   • Briefly introduce your organization and its relevance to the proposed regulation.
   • State your support or concerns regarding the proposed changes.
2. Impact Analysis:
   • Discuss how the proposed regulation will impact your organization. This could include financial implications, operational challenges, or benefits.
   • Provide specific examples or data to support your analysis.
3. Recommendations:
   • Clearly outline any recommended changes to the proposed regulation.
   • Support your recommendations with logical arguments, data, and references to relevant legal or regulatory frameworks.
4. Conclusion:
   • Summarize your main points and reiterate the importance of considering your comments.
   • Offer to provide additional information or engage in further discussion if needed.

Conclusion

Participating in the rulemaking process is crucial for employers who will be affected by the proposed changes to the 9-11 Biometric Fee regulations. By understanding the proposal and submitting well-supported comments, you can help shape the final rule to better address the needs and realities of your business while supporting the overall goal of enhancing national security through robust biometric systems. Make sure to submit your comments by the July 8, 2024, deadline to ensure your input is considered.

Moreover, engaging in this process not only helps in shaping policies that are practical and beneficial for all stakeholders but also demonstrates your organization’s commitment to compliance and proactive participation in regulatory developments. This engagement can foster a more collaborative relationship with regulatory bodies and potentially influence future regulatory actions in a manner favorable to your business and the industry at large.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 27 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By : Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.