H.R. 6080, Pub. L. No. 111-230
On August 13, 2010, the president signed into law H.R. 6080,
Making emergency supplemental appropriations for border security for the fiscal year ending September 30, 2010, and for other purposes.
In addition to setting funding levels for the Department of Homeland Security, the Justice Department, and the Judiciary, the law also establishes an additional fee of $2,000 for H-1B petitions and $2,500 for L petitions, if the petitioner employs 50 or more employees (part-time and full-time combined)
and more than 50 percent of the petitioner's employees are H-1B, L-1A, L-1B, or L-2 nonimmigrants.
Note: The requirement to evaluate the workforce under this standard is in addition to the separate and distinct "H-1B dependency calculation" that is part of the Department of Labor LCA process.
The increased fees became effective as of the date the bill was signed into law. Petitioners must respond to questions on the H-1B Data Collection and Filing Fee Exemption Supplement of the latest edition of Form I-129 (rev. 11/23/2010, required as of 12/23/2010) for USCIS to determine if the petitioner is subject to the additional fee.
Note: For petitions filed before December 23, 2010 using a prior edition of Form I-129, USCIS had stated in an August 19, 2010 USCIS update that while USCIS was in the process of revising Form I-129, petitioners were to either include the new fee if subject or include a notation of whether the fee is required, "in bold capital letters at the top of the cover letter." USCIS would issue a Request for Evidence (RFE) to peititioners who did not include a satisfactory explanation with the initial filing. In an August 19 teleconference, USCIS was not able to give precise guidance on what would constitute a sufficient statement or evidence to establish exemption from the fee, so NAFSA suggested an attestation such as this, placed in bold capital letters at the top of the petition cover letter, where the employer's status is readily apparent: "[name of employer] HAS OVER [insert total] EMPLOYEES, OF WHOM FEWER THAN [insert number] ARE H-1B OR L NONIMMIGRANTS. AS SUCH, [name of employer] IS NOT SUBJECT TO THE ADDITIONAL FEE REQUIRED UNDER PL 111-230." The numbers would be based on the actual numbers of the institution, but expressed as "over" and "fewer than" figures, so as to not require an unnecessary review each time a new petition is filed. For employers whose status is not so clear, a more precise determination would have been necessary each time a subject petition is filed. This model statement was a suggestion from NAFSA. It was not approved by USCIS, nor did it constitute legal advice.
An extract of the relevant language from Pub. L. No. 111-230:
TITLE IV
GENERAL PROVISIONS
Sec. 401. Each amount appropriated or otherwise made available under this Act is designated as an emergency requirement and necessary to meet emergency needs pursuant to sections 403(a) and 423(b) of S. Con. Res. 13 (111th Congress), the concurrent resolution on the budget for fiscal year 2010.
Sec. 402. (a) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) shall be increased by $2,250 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant's employees are nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b) of such Act or section 101(a)(15)(L) of such Act.
(b) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) shall be increased by $2,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant's employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.
(c) During the period beginning on the date of the enactment of this Act and ending on September 30, 2014, all amounts collected pursuant to the fee increases authorized under this section shall be deposited in the General Fund of the Treasury.