Clarifying the H-1B and L-1 Visa Fee Increase

In a remarkable display of misplacing the financial burden for increased cost of border security, the Federal Government has enacted Public Law 111-230, effective August 13, 2010 increasing the fee for certain H-1B visas by $2,000 and the fee for certain L-1 visas by $2,250. Needless to say, this drastic and unnecessary increase in the already exorbitant fee structure for H-1B and L-1 visas has sent shockwaves through the business and non-immigrant community. However, before businesses jump to any conclusions regarding this fee structure, some clarification is in order.

This fee is only required for employees who are gaining H-1B or L-1 status for the first time (or have been out of the United States for more than one year following a stint in the states on H-1B or L status) and to the case of persons holding H-1B or L-1 visas that wish to transfer from one employer to another. This new fee does not apply to persons who are extending their H-1B or L-1 visa with the same employer.

While the fee increase for new H-1B and L-1 visas fits nicely into the federal government’s strategy of systematically eradicating the H-1B and L-1 visas from use by technology firms, the fee increase for transfer cases is even more troubling from an immigration policy perspective. Specifically, such a fee increase makes it public policy to hold H-1B and L-1 workers hostage to their current employers. Yes, employers are free to pay the extra fee for those persons who they really value, but the additional consideration now exists to be calculated by potential employers, in contradiction to the freedom of contract and policy of mobility offered by AC-21.

Only companies who employ 50 or more employees will be affected by the fee increase. This is good news to the smallest of businesses. However, it draws a line in the sand for small businesses of over 50 employees who are attempting to grow, and wish to employ persons of their choosing. This makes absolutely no sense in the spirit of furthering those successful small businesses that are approaching or are on the cusp of becoming large businesses. Small businesses of over 50 employees have drive technical innovation in this country and it makes no sense to hinder them from hiring the world’s top talent, no matter what their country of origin may be.

The fee increase applies only to companies that have 50% or more of its employees on H-1B or L-1 visas. Again, there is no sense in hindering a company from using these lawful and useful H-1B and L-1 visa categories if they so choose.

The Fee increase is Not specifically Mentioned on Current USCIS Form I-129 or the I-129 Supplements

Unless you are aware of this fee increase from the news or from word of mouth, you will never know that it exists. This is because the immigration forms (Form I-129 Supplement H-1B) that aid the petitioner in calculating the proper fee to pay do not list this fee increase, anywhere. In the event that this new fee is not included with the petition package, that petition will be returned to sender to try again. In fact, petitioners that fall into the new fee structure and mailed their petitions in on August 14, 2010 without the fee will receive a nice manila envelope in the mail with your un-adjudicated petition inside.

This new fee, in the time honored tradition of robbing Peter to pay Paul, is not only bad immigration policy; it is bad economic policy and foreign policy as well. Placing such an extra burden on businesses as they attempt to grow does not serve this country well in regaining its economic footing. Furthermore, it is obvious that the citizens of certain countries in Asia will feel the effects of this fee more than other countries. The proposed use of the revenue generated from this fee will more than likely go to immigration enforcement activities on the US southern border. It would be foolish to think that the countries most affected by this fee increase will not take notice. For whatever the political reason and for whatever the intended use may be, the new fees are here and need to be understood and followed for a smooth adjudication of an H-1B and L-1 visa.

If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.