Money, Money, Money: The Administration’s Newest Immigration Fee Increase Targeting Employers

On August 10, 2026, the U.S. Department of Homeland Security published a final rule (91 FR 51360) significantly expanding coverage of the “9-11 Biometric Fee.” This may catch some employers unawares, since USCIS refers to the same fee as the Public Law (“PL”) 114-113 fee.

Since 2015, certain U.S. employers (“covered employers”) have been required to pay an additional fee with their initial H-1B or L-1 petition for a worker. Currently, covered employers must pay an additional $4,000 fee with each initial H-1B petition and an additional $4,500 fee for each initial L-1 petition. Effective September 9, 2026, this final rule requires covered employers to pay the additional fee for subsequent extension petitions on behalf of H-1B and L-1 employees.

This article explains what changed, which employers are impacted by the change, and the other H-1B and L-1 compliance requirements implicated by the change.

What changed?

Under the prior rule, the fee was required to be paid by covered employers only when filing an initial H-1B or L-1 petition on behalf of a worker. In this context, a “change of employer” petition is considered an initial petition. Starting September 9, 2026, those covered employers will be required to pay the fee when filing both an initial petition as well as extension petitions.

This is a significant shift in the financial exposure for covered employers: What was effectively a one-time fee of $4,000 per H-1B worker will now apply to almost every type of H-1B petition a covered employer will file. The single exception? H-1B amendment petitions—but only if no extension of status is requested.

This policy change hasn’t appeared out of thin air. This is the current administration’s second attempt to expand the application of the fee. The first attempt, as part of the controversial immigration fee increases published in August 2020, was enjoined prior to implementation and, ultimately, rescinded by the outgoing Biden administration in January 2024.

Just shy of six months after the administration change in January 2024, DHS announced a renewed effort to expand the fee in a notice of proposed rulemaking (NPRM) published on June 6, 2024 (89 FR 48339). The NPRM opened the proposed fee expansion to public comment until July 8, 2024. In an unusual display of efficiency, DHS reviewed all 146 public comments it received in a single month following the close of the comment period; before publishing the final rule unchanged from the proposed version.    

What is the cost impact of the fee change?

This rule change is narrow in scope but those impacted will pay dearly—an additional $4,000 for each H-1B extension and an additional $4,500 for each L-1 extension. Taking into account all applicable filing fees, a covered employer can expect to their filing fees to increase significantly:

As you can see, this rule change significantly increases the costs of maintaining H-1B and L-1 employees over the long-term, doubling or even tripling total immigration spend for covered employers.  

What employers are impacted by the fee change?

U.S. employers with H-1B or L-1 workers should pay close attention to their nonimmigrant worker population in the U.S. to avoid surprises. An employer must meet both of the criteria below to trigger the application of the 9-11 Biometric Fee:

1. Employs fifty or more individuals in the U.S. All of the U.S. entity’s employees, part-time and full-time, are counted for this criterion; but employees of related entities are not.
2. At least 50% of those employees hold H-1B or L-1 status. All H-1B and L-1 nonimmigrant employees in the U.S. are counted for this criterion, regardless of whether they are on U.S. or foreign payroll.

Employers with fewer than 50 individuals on payroll do not need to worry about paying the 9-11 Biometric fee at all. Those employing 50 or more individuals will only be subject to the fee if 50% or more of their employees in the U.S. are employed pursuant to H-1B and/or L-1 status. This helps shelter the largest companies from the fee—a company with 1,500 employees total would need to employ at least 750 H-1B and L-1 workers to be subject to the 9-11 Biometric Fee. On the other hand, small and mid-size businesses can trigger the fee more easily, especially smaller multinational and transnational companies that rely heavily on L-1 visas to bring global executives, managers, and specialized employees to the U.S. when building out their operations in the country.

Does the 9-11 Biometric Fee automatically apply to H-1B Dependent employers?

Not necessarily. All employers subject to the 9-11 Biometric Fee will also be H-1B Dependent employers. But not all H-1B Dependent employers will be subject to the 9-11 Biometric Fee.

H-1B Dependency is governed by the U.S. Department of Labor (“DOL”), which oversees the labor conditions and attestations required for the H-1B category. The DOL considers an employer to be H-1B Dependent if it employs

• 25 or fewer full-time equivalent (FTE) employees, at least 8 of whom are H-1B nonimmigrants;
• 26-50 FTE employees, at least 13 of whom are H-1B nonimmigrants; or
• 51 or more FTE employees, at least 15% of whom are H-1B nonimmigrants.

The H-1B Dependency calculation differs from the 9-11 Biometric Fee in two key respects:

1. H-1B Dependency counts full-time equivalent employees, not individuals. So, two part-time employees who each work 20 hours per week would be counted as one FTE employee.
2. H-1B Dependency counts employees of related companies for purposes of calculating dependency. If a group of entities qualifies as a single employer under the Internal Revenue Code (IRC) at 26 USC 414(b), (c), (m), or (o), then the employees of each entity within the group must be included in the dependency calculation.

Organizations with complex corporate structures and entities under common ownership are particularly at risk of running into H-1B dependency issues. Because H-1B dependency is a moving target, employers must assess their dependency status each time they file a Labor Condition Application (“LCA”) with the DOL or submit an H-1B petition to USCIS.

The DOL requires every single employer that sponsors an H-1B worker, regardless of size, to file an LCA summarizing the proposed position, offered wage, proposed work location(s), and applicable prevailing wage. In that LCA, the company attests, under penalty of perjury, that it will comply with all of the DOL’s extensive, detailed labor condition requirements regarding the wages and working conditions offered to the H-1B employee, the existence and handling of labor disputes in the area of intended employment, and the provision of notice to similarly situated U.S. workers. The DOL must certify the LCA before the employer can file its H-1B petition with USCIS.

But H-1B Dependent employers must make extra attestations in their LCA, unless the H-1B worker will earn at least $60,000 or holds at least a master’s degree (“exempt H-1B nonimmigrants”). Specifically, H-1B Dependent employers must attest that it will not displace a U.S. worker, directly or indirectly, from an position essentially equivalent to the one offered to the H-1B worker; and that it took good-faith steps to recruit U.S. workers for the position offered to the H-1B worker, including offering the position to any U.S. worker applicant who is equally or better qualified than the H-1B worker.

H-1B Dependency is a complex issue that can subject employers to enforcement actions by the DOL resulting in substantial liability from civil monetary penalties up to debarment from the H-1B program altogether.

Action Items for Employers

The expansion of the 9-11 Biometric Fee is merely one of many efforts by the current administration to curtail completely legal, employment-based immigration. Enforcement against U.S. employers with nonimmigrant employees is on the rise and can be pursued through any one of the many regulatory schemes that touch on the employment of foreign nationals in the U.S.

The following action items will help employers get an accurate picture of their current compliance profile and enforcement risks:

1. Employers with H-1B or L-1 nonimmigrants should determine whether they are subject to the 9-11 Biometric Fee and, if so, analyze the potential impact on projected immigration spend.
2. Employers with H-1B nonimmigrants should determine their H-1B dependency status. Many organizations fail to account for related entities when calculating dependency; or changes in nonimmigrant employee populations due to mergers or acquisitions.
3. Employers with H-1B, H-1B1, or E-3 employees should audit their LCA compliance processes and public access files. Many employers fail to maintain their public access files as required, which can easily escalate into significant liability if noncompliance is discovered during an audit or investigation.
4. All employers should internally audit their Forms I-9 and associated processes and procedures. ICE I-9 audits can easily evolve into multi-agency enforcement actions because of the volume and nature of the records that must be produced.

This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. No statement in this communication constitutes legal advice nor should any communication herein be construed, relied upon, or interpreted as legal advice. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. For more information, visit www.buchalter.com.