Proposed H-1B Cap Registration Fee Under Federal Review

At a glance

• The Department of Homeland Security has submitted to the Office of Management and Budget a proposal to impose a fee on employers who register for the H-1B cap under an online system that will take effect next year.
• Once OMB clears the proposal, it will be published in the Federal Register for public comment.  It is expected to be made final in time for the FY 2021 H-1B cap season.
• The fee amount is not yet known.

The issue

The Department of Homeland Security is rapidly moving forward with a proposed regulation to charge a fee for filing registrations in the forthcoming H-1B cap online system, just days after announcing its plan to so impose a fee.  The proposed fee – which has not yet been specified – is now under review at the Office of Management and Budget, the first step toward implementation. 

When a regulation to require advance registration for the H-1B cap was finalized earlier this year, DHS indicated that it could elect to impose a fee in the future.  H-1B cap registration will begin with the FY 2021 H-1B cap season, which will begin in early 2020.

A closer look at H-1B cap fees

Under current rules, an employer who submits an H-1B cap petition is subject to the following fees:

• A filing fee for Form I-129, the nonimmigrant worker petition, currently $460
• An H-1B Training and Education fee, currently $1,500 (or $750 for employers with 25 or fewer full-time employees)
• An anti-fraud fee of $500
• A border security fee of $4,000, if the petitioner has 50 or more employees in the United States, more than 50% of whom are in H-1B or L-1 status
• A $1,410 fee for premium processing service, if available and elected by the petitioner

If the cap petition is not selected in the lottery, these fees are returned.

Under the forthcoming system, employers would submit a registration and fee for each foreign national they wish to sponsor for cap-subject H-1B employment.  A petition and associated filing fees would be submitted only if the registration were selected in the cap lottery.

Next steps for the proposed fee rule

OMB has 90 days to review the proposed regulation.  Once it clears OMB review, the proposal will be published in the Federal Register for public comment. Interested organizations and individuals are expected to have 30 to 60 days to submit feedback.

When the public comment period closes, DHS will review the feedback it receives and prepare to issue a final regulation.  There is no set timeframe for publication of a final rule, but it is expected to be in place when the FY 2021 H-1B cap season begins early next year.

What this means for employers

Though the exact amount of the proposed registration fee has not yet been disclosed, employers should be ready to budget for the new fee if they plan to submit H-1B cap registrations next year.

Fragomen is closely following the fee proposal and will provide updates as it advances through the approval process.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.