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The H-1B has always been a politically sensitive visa, often blamed (usually unfairly) for damaging employment opportunities or wages for US workers, and perceived as a hotbed for fraud, abuse and misuse.
To be sure there were some high-profile cases of abuse or fraud in the system. However, this has always been far from the norm. However, the reports were used effectively by anti-immigrant interests to push for changes making the H-1B program more difficult to use
Among these changes have been the addition of various additional fees over the years required in order to use the H-1B program.
Not all of these fees are necessarily the result of efforts to make the program more difficult to use or to appease anti-immigrant forces.
The base filing fee ($460.00 at this writing, though we currently await a new rule raising USCIS filing fees across the board) is intended the costs of adjudicating the petition. Almost all USCIS filings carry a filing fee, and as the agency relies on user fees rather than congressional appropriations the idea of charging a filing fee is not necessarily unreasonable. Whether value is provided for the fee charged, in light of the speed and quality of adjudication and the unavailability of meaningful customer service, is however open to debate.
An employer has the option of paying an additional $2,500.00 fee for “Premium Processing” – a response within 15 business days (three weeks). This does not guarantee approval in that time; the response may well be an inquiry – typically a “Request for Evidence” or “RFE” – rather than an approval, and USCIS would have another 15 business days to respond further once an employer’s answer to the RFE. Without the optional fee, an employer may be waiting months to hear back in any fashion. Further, an employer may rightly be outraged at paying such a substantial additional fee for better service while already being charged a base fee for that service.
There is also a $10.00 H-1B registration fee for employer entering a cap-subject employee in the H-1B lottery for the first time, intended to cover the expenses of administering the lottery. This fee, too is subject to a likely upcoming fee increase at this writing.
These fees are generally not the result of political compromise.
An H-1B employer may pay as many as six different fees, each for a separate purpose.
Three of these fees are the H-1B lottery registration fee, the base filing fee, and the optional premium processing fee discussed above.
However, several more fees were put in place to address real or imagined issues with the H-1B program, and at least in theory are supposed to have a direct impact on the issue they were enacted to address:
- The Education/ACWIA (ACWIA = “American Competitiveness and Workforce Improvement Act” of 1998) fee goes to a fund that supposedly funds education and training for US workers in order to address a gap in skills requiring employers to turn to non-US workers for the required skills. The base fee is $750.00 for employers with 25 or fewer employees, but doubles to $1,500.00 for companies with 26 or more headcount.
- The Fraud Detection and Prevention fee (2004) – $500.00, intended to fund efforts to deal with purported fraud in the program by funding better paperwork examination and site visits.
- H-1B Dependency fee (2015) – $4,000.00, only for employers with a qualifying ratio of H-1B or L-1 workers to their overall workforce. An employer with 50 or more employees where half are H-1B or L-1 nonimmigrant work visa holders will need to pay this fee. This fee was intended to combat “onshoring” or what some people would call “job shops.”
There is little transparency as to how these fees are ultimately utilized – so it’s far from clear that charging these fees has any imp[act on the issues they were put in place to address.
Not all petitions will require all fees.
An employer will only need to pay the lottery registration fee when, as a cap-subject employer, they first enter a potential H-1B employer in the lottery. This fee doesn’t apply to exensions or amendments for an existing employee, or a petition for a new hire already on an H-1B.
Some of these fees drop off after multiple petitions. – the Fraud Detection and Prevention Fee goes away for the second same-company/same-beneficiary petition (extension or amendment), the Education/ACWIA fee for the third.
Certain employers are exempt from the Education/ACWIA fee entirely, such as government research institutions, primary or secondary schools, nonprofits engaged in clinical training, or those filing to correct an earlier USCIS error. Petitions seeking amendment without requesting additional time past the expiration of the last petition are also exempt from the Education/ACWIA fee,
Many employers will never need to pay the Dependency Fee simply because they never approach a qualifying proportion of H-1B workers; as long as the total H-1b or L-1 workers aren’t half of all employees an employer will not need to pay this fee no matter how many employees they have, and no employer with 49 or fewer employers would need to pay it regardless of the proportion of H-1B or L-1 employees.
Of course, the premium processing fee is optional.