Congress was told the H-1B and L-1 biometric fee would raise $420m a year, it raised $25.6m last year, and Homeland Security has now rewritten the rule that decides who pays it
Ten years of collections tell the story before the rule does.
In December 2015, the Congressional Budget Office scored a new fee on H-1B and L-1 petitions at roughly $420m a year. Customs and Border Protection has now set out what actually arrived: $158m in 2016, then $125m, $119.1m, $118.3m, $71.9m, $56.7m, $52m, $26m, $35.1m, and $25.6m in the year to last September. The pandemic explains two of those years. It does not explain the shape of the line.
The agency filed a final rule on Friday that changes who has to pay.
What the rule changes
The fee, which the statute calls the 9-11 response and biometric entry-exit fee, is $4,000 on an H-1B petition and $4,500 on an L-1. It falls only on covered employers: firms with 50 or more employees in the United States, more than half of whom hold H-1B or L-1 status. That test is unchanged and it is narrow.
What changes is the trigger. When Congress wrote the fee into law in 2015 it said the combined filing fee and fraud prevention fee shall be increased for an application for admission, including an application for an extension of such status. In 2016 DHS read that as tying the biometric fee to the fraud fee, which is itself only charged on certain petitions. The practical result was that an extension that kept a worker with the same employer often carried no biometric fee at all.
The final rule reverses that reading. The fee now attaches to all extension of status petitions from a covered employer, whether or not the fraud fee applies and whether or not the employer changes. Petitions seeking an initial grant of status are untouched.
The arithmetic DHS put on it
In undiscounted 2025 dollars the agency estimates the rule moves $37.9m in fiscal 2026 and $40.0m in fiscal 2027. The H-1B share is the bulk of it, $30.7m and $32.6m, against $7.2m and $7.5m for L-1. Annualised, the figure is $38.9m at both three and seven percent discount rates.
The L-1 estimate rests on an assumption the agency states plainly. USCIS does not preserve the same petition data for L-1 as for H-1B, so DHS worked backwards from collections, divided by the $4,500 fee to get a petition count, and applied a multiplier of 1.8127 taken from the H-1B ratio of new payers to existing payers over 2018 to 2025. If L-1 behaves differently from H-1B, the agency writes, the transfers will be higher or lower than projected. It says it asked for comment on that assumption and received no disagreement.
The rulemaking drew 146 comments. Some argued the change will make firms less willing to hire H-1B and L-1 workers and will hurt the ability to attract workers from abroad. The rule is adopted as proposed.
It takes effect 30 days after publication, which is set for 10 August.
