Impact of Border Security Bill on H1/L1 Visa Programs – Detailed USCIS

In H1B Visa by SaurabhUpdated : 25 Comments

On Aug 13 2010, President Obama signed Border Security Bill into law. Besides bunch of other things, this law increases the fees that need to be paid by certain H1/L1 petitioners.

Following President Obama’s signature, USCIS released details on the new fee structure:

– The new fees will be applicable on any H1 or L1 petition postmarked Aug 14 2010 or later. So if your petition was sent on Aug 14, then your employer is required to pay the increased fees (provided the employer satisfies certain conditions set for this, which I will explain below).

– The increased fees for H1 petitions is $2,000.00 and for L1-A, L1-B petitions is $2,250.00. This fees is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

– The increased fees is applicable only to employers who

  • have more than 50 employees
  • have more than 50% of their US workforce on H1, L1-A, L1-B and L-2 i.e. even dependents of L1 who are working on EAD are counted towards that 50% threshold.

– The increased fees are applicable until Sep 30 2014 unless extended by law.

– The fee increase is applicable to first time filers and aliens who are changing employers. It is not applicable to H1 extensions filed w/ the same employer.

– USCIS will issue RFE if the correct fees is not paid (especially for petitions filed after Aug 14), and petitioners will be required to submit correct fees.

– USCIS is working on revised I-129 forms that would specifically ask if the petitioners qualifies for additional fees or not

For official communication from USCIS, refer the link below:

It is likely possible that some consulting companies may pass on this fees to their employees (especially the ones that charge fees from beneficiaries/aliens for filing H1). However, one should remember that by law, the petitioner is required to pay the fees, and demanding fees from beneficiary/alien is illegal and against the law. It is important to not forget this right of yours.

Thank you

   

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Comments ( 25 )

  1. nancy

    Hi Saurabh,

    I was wondering if you could help me with a question. If I get a advanced degree (Masters) in a STEM field via correspondence from a US university while not being present in the US, will my H1b application be subject to the advanced degree exemption?

    Thanks

    1. administrator
      Saurabh

      Nancy,
      I have not heard of the requirement that the student should be physically present inside US for this. The school should be accredited for sure. Do you know if you school is accredited and is a not for profit organization?

  2. sanjay

    sir
    i am postgraduate in biotechnology having 8yr resarch & teaching experience wants to apply for h1 visa pl tell me what documents required and any consultant can help me i am presently in usa new york on b1 visa from last 2 weeks my ph no–347-387-1005

    thanks with regards sanjay

  3. Raj

    Hi Saurabh,

    Please suggest on below,

    I have applied for a fresh H1b and got it for 3 three years, but at the time of port of entry into US they have stamped my I-94 for 2 years, my query is if i want to go for my I-94 extension once reached the expiry date of it what should i do …….. should i have to come back to India or any other alternative process is there for this ….

    Please suggest ……….

    1. administrator
      Saurabh

      Raj,
      You can go to local CBP office and get the I-94 extended or file an application w/ USCIS. They should extend it to petition expiration date.

  4. manoj

    Hi…..
    I am B.Com. graduate from Gujarat university, Ahmedabad, passed 1.5 years of LLB course and also passed 1st semister of C.A. course.
    I have 20 years’ experience of Accounts, Administration, Management, Sales
    I am on H1B visa in PA state since last 4 years.
    Still I haven’t applied for Labour certification for Green card process
    My question is:
    If I apply for labour certification now under EB3 category and then if I start studying MBA-Finance from Bloomsburg University, will I be able to upgrade my category from EB3 TO EB2 in green card process after getting degree certificate for MBA-Finance?
    I know that I have to file for new labour certification but still can I use prior labour application date?

    Thanks…..Jai Ambe

    1. administrator
      Saurabh

      Manoj,
      Upgrading requires 2 conditions to be met:
      1. You have done Masters in US or have more than 5 years of relevant work experience
      2. The offered position requires use of the degree you have completed.

      So unless 2 is satisfied, you cannot upgrade to EB-2 just b/c of completing Masters in MBA-Finance. The company needs to sponsor you for a position that requires MBA-Finance.

  5. TJ

    Hi Saurabh,
    I came to US on H1 in Nov 21 2011.
    For November and December’s salary, I got paid on January 2, 2012.
    I need to get form W2 for filing my taxes for 2011 year as there was a substantial amount.
    But my employer is saying that since the salary of Nov and Dec 2011 was paid on Jan2 2012, the income would be counted in W2 2012 and not in 2011.

    What I want to ask is, even if I got paid on Jan 2, 2012, it was Dec 2011’s salary. Wouldn’t I be needed to file taxes for 2011?

    I appreciate your quick response.

    1. administrator
      Saurabh

      TJ,
      W2 is raised depending upon which month salary is paid. So W2 will be issued for 2012 and not 2011. However, USCIS can ask about W2 for 2011, and in that case you will have to provide them the explanation that the salary for Nov, Dec was provided in Jan and so there is no W2 for 2011. It should be fine as long as you have a valid reason for the delay and were paid the entire amount for for entire Nov and Dec.

  6. Hello

    Saurabh..I worked in the US till May 15 2011..I used to file using HnR Block but have questions for this year…
    Am I a NON-Resident Alien now ? (as I am out of US for the last 9 months – in India)

    If I select Non Resident Alien as an option HnR Block is stating their online filing is not available for 1040NR.

    Do you know whether 1040NR is the right form for me for last year ?? How can I file for refund from India ?? Any websites you know of ??

  7. Min

    Hi Saurabh,

    I have received my H1-B approval with out i-94, i don’t want to leave the country for stamping as it will not favor to me, so wondering if i marry to green card holder can i stay as depended and work?

    Thanks,

    1. administrator
      Saurabh

      Marrying GC holder will not help you in getting work authorization, although marrying a US citizen would help. However, if you are marrying for the purpose of getting work authorization then that would be illegal.

      Do you know why your COS was denied? If you can correct the denial reasons, then you can apply for COS to H-1. What’s your current status and when is current I-94 expiring? Are you currently in US?

      1. Min

        My i94 was not given because i crossed 18 day in filing for new employer(current employer). current status is h1-b approved with out 1-94. my previous i94 is no more valid as my old employer termed my h1-b before transferring to current one(NEW). In this situation i don’t know what to do? can i file appeal??

        1. administrator
          Saurabh

          Your COS was denied by law as your transfer wasn’t filed timely. As you don’t have any valid I-94 at the moment, the only option is to leave US and go for H-1 visa stamping. If your previous visa stamp is still valid, then you can leave US and return on existing visa stamp.

          How long have you stayed in US since being let go by previous employer?

  8. Anuj

    Hi Saurabh,

    Thank you so much for helping people out in such an area where most of the people do not have much exposure and knowledge.
    I really appreciate your effort.

    Actually my wife is already in US on H1B since last couple of months. I have got my H4 visa approved and now in India.
    My current employer has agreed to file H1B for me and they have filed H1B petition in 2012 quota.

    Now my question is: As H1B petition approval will take some time, can I visit US on H4 taking couple of months leave and then once my H1B petition is approved I do a COS and start working there after 1st Oct, 2011?
    Is there any legal complicacy associated with this?

    1. administrator
      Saurabh

      That is possible. However it may not happen by 1st Oct unless it is filed and approved w/ premium processing. Even then when standalone COS is filed (your H-1 petition would have already been approved), there is no premium processing option available and it may take 2-3 months.

      Other than that, you can be here on H-4, and then the employer can file COS for you.

      1. Anuj

        Thank you so much Saurabh.

        I just have another followup question: If I go to US on H4 and then file a H1B petition with COS in premimum processing, is it going to be faster to COS to be completed as compared to my previous option?

        1. administrator
          Saurabh

          Yes. It would be faster to enter US on H-4, and then have your employer file H-1 w/ COS and premium processing. It would allow you to start as early as 1st Oct 2011.

  9. Suresh

    US increases Visa fee just to build their border security, Hope India will do something to tease US related products/services so that US will learn the way how to behave with the people who are helping them to grow.

  10. Subhadeep

    So , this means for petitions filed after August14 , H1b filing fees will be $4320 under regular processing and $5320 under premium processing ? One more question I have , is that I have a B1 visa ( 10 year multiple entry to US ) through my employer ( top Indian IT company ).Is it valid only for my company or can I also use it for another organisation?

    1. administrator
      Saurabh

      Yes, but only new H1/L1 petitions or H1 transfers filed by companies that satisfy the criteria (>50 employees, >50% employees on H and L visas)

      I am not 100% sure, but you should be able to use your B1 visa for business purpose even after leaving current employer.

      1. Subhadeep

        Thank you for the response.So what you are saying is that the B1 visa is not specific to any company, thus I don’t need to return the visa to my current employer in case I leave for another company.

        1. administrator
          Saurabh

          It is my understanding that B1 is issues to an individual and not specific to a company. So you should be able to use it even after changing employers.

          However, like I said, I am not 100% sure about it.

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