United States: DHS Proposes Expansion of 9-11 Response Fee
June 5, 2024
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At a glance
- A proposed rule seeks to expand the $4,000 or $4,500 9-11 Response fee to include H-1B and L-1 extension petitions filed by employers subject to the law, instead of only requiring the fee for their initial and change of employer petitions.
- The 9-11 Response fee applies only to petitioners filing an H-1B or L-1 petition who employ 50 or more employees in the United States, if more than 50 percent of the employees are in H-1B or L-1 status.
- The proposed rule will be published on June 6, 2024, and CBP will accept public comments for 30 days.
The issue
The Department of Homeland Security will soon publish a long-planned proposal to expand the U.S. Customs and Border Protection (CBP) 9-11 Response and Biometric Entry-Exit fee (9-11 Response fee) to apply not only to initial and change of employer H-1B and L-1 petitions filed by covered employers but also to all H-1B and L-1 extension of stay petitions filed by these employers. The regulation will be published in the Federal Register on June 6, 2024, and CBP will accept public comments for 30 days thereafter. An advance copy of the rule is available.
A closer look
The 9-11 Response fee applies only to employers that employ more than 50 employees in the United States in H-1B or L-1 status if more than 50 percent of the U.S. employees are in H-1B or L-1 nonimmigrant status. Currently, H-1B and L-1 petitions filed by these employers are required to include the additional $4,000 (H-1B) or $4,500 (L-1) 9-11 Response fees only when a separate Fraud Prevention and Detection fee (Fraud fee) is also required. This includes only the following circumstances: 1) an initial grant of H-1B or L-1 status to a foreign national; or 2) a change of employer in the same status for an H-1B or L-1 foreign national (including where an extension of stay is requested).
In its proposed rule, CBP newly interprets the 9-11 Response fee to apply to an expanded set of circumstances, irrespective of whether the Fraud fee applies to a filing. The proposed rule would continue to require the 9-11 fee for petitions seeking initial grant of H-1B or L-1 status and for change of employer petitions in those two visa categories, but would also apply the fee to all H-1B and L-1 extension of stay petitions filed by covered employers. Only petitioners filing an amended petition without an extension of stay request would be exempt from the fee. According to CBP, ambiguous language in the statute governing the 9-11 Response fee permits this change in agency interpretation.
The proposed regulation will not take effect until it has been finalized and approved by the federal Office of Management and Budget.
Background
The 9-11 Response fee was created by statute (Pub.L.114-113) in December 2015, a successor to an earlier, similar supplemental statutory fee established in 2010. Congressional intent behind the 9-11 Response fee was to fund the biometric entry and exit programs that had been earlier mandated in the interest of national security. The fee is scheduled to sunset on September 30, 2027, unless extended. CBP’s proposed rule expanding the 9-11 Response fee maintains the September 30, 2027 expiration date, so if finalized, the expanded fee would apply to petitions filed on or before that date.
What this means for employers and foreign nationals
The rule is a proposal only and will not take effect until it clears the federal review process, which typically takes several months. After the 30-day public comment period, CBP will consider public comments and finalize the rule’s provisions. The fee expansion proposal comes soon after a separate DHS rule took effect on April 1. That rule significantly increased filing fees for USCIS petitions and applications, and particularly steeply for employment-based petitions.
If your organization wishes to comment on the government’s 9-11 Response fee expansion proposal, please contact your designated Fragomen professional or the firm’s Government Relations and Compliance group. This alert is for informational purposes only.
