Department of Homeland Security Publishes Rule on Expansion of 9-11 Response Fee

By: Min Kim

Introduction

On June 6, 2024, the Department of Homeland Security published a proposed rule to expand the [MK1] 9-11 Response and Biometric Entry-Exit fee (9-11 Response fee). The proposed change will in effect expand the requirement to pay the additional 9-11 Response fee for all extension of stay H-1B and L-1 petitions, regardless of whether the petition is for an initial filing, change of employer, or extension petition with the same employer. As background, the 9-11 Response fee only applies to petitioning H-1B and L-1 employers with 50 or more employees, with more than 50% of employees in the U.S. in H-1B or L-1 nonimmigrant status.

Summary

Historically, in addition to the customary filing fees associated with an H-1B or L-1 nonimmigrant petition, for covered U.S. employers that have 50 or more employees, with more than 50% of employees in the U.S. in H-1B or L-1 nonimmigrant status, such employers were required to pay the additional 9-11 Response fees of $4,000 for H-1B petitions and $4,500 for L-1 petitions when such initial or change of employer petitions also required payment of the $500 Fraud Prevention and Detection fee. Therefore, any petition sponsored by the same employer that either requested an extension of H-1B or L-1 visa status for that same beneficiary was exempt from having to pay this 9-11 Response fee again. However, this new proposed rule change seeks to extend the requirement of paying the additional $4,000 and $4,500 fees to H-1B and L-1 extensions, respectively, regardless of whether the Fraud Prevention and Detection fee applies.

Significantly, this rule of requiring the additional 9-11 Response fees even for H-1B and L-1 extension petitions filed by the same employer for the same beneficiary has not yet been finalized and thus is not currently in effect as it must go through the customary rulemaking process. In particular, any such changes to fee requirements for covered employers would not take effect until after DHS reviews all public comments it receives and issues a final regulation, which can take many months beyond when the rule is first published, and until such a final regulation and effective date is published, H-1B and L-1 employers can continue to operate with the understanding that the 9-11 Response fee is to be paid only once as part of a request for an initial grant of H-1B or L-1 status, or petition to change employers for an H-1B or L-1 foreign national.

Conclusion             

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