Proposed Rule2024-12396
9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas
Primary source
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Published
June 6, 2024
Issuing agencies
Homeland Security DepartmentU.S. Customs and Border Protection
Abstract
The Department of Homeland Security (DHS) proposes to amend and clarify the regulations concerning the 9-11 Response & Biometric Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee). The proposed regulatory changes would clarify DHS's interpretation of ambiguous statutory language to require that covered employers submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status. The proposed changes will also help DHS comply with its congressional mandate to implement a biometric entry-exit data system.
Full Text
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<title>Federal Register, Volume 89 Issue 110 (Thursday, June 6, 2024)</title>
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[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Proposed Rules]
[Pages 48339-48348]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12396]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 110 / Thursday, June 6, 2024 /
Proposed Rules
[[Page 48339]]
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
8 CFR Part 106
[Docket No. USCBP-2024-0009]
RIN 1651-AB48
9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) proposes to amend
and clarify the regulations concerning the 9-11 Response & Biometric
Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee). The
proposed regulatory changes would clarify DHS's interpretation of
ambiguous statutory language to require that covered employers submit
the 9-11 Biometric Fee for all extension-of-stay petitions, regardless
of whether a Fraud Fee applies, so as to include extension-of-stay
petitions that do not involve a change of employer. The 9-11 Biometric
Fee would continue to apply unchanged to petitions seeking an initial
grant of status. The proposed changes will also help DHS comply with
its congressional mandate to implement a biometric entry-exit data
system.
DATES: Comments must be received by July 8, 2024.
ADDRESSES: Please submit comments, identified by docket number, by the
following method:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments via docket number
USCBP-2023-XXXX.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Larry Panetta, Office of Field
Operations, U.S. Customs and Border Protection, by phone at 202-344-
1253 or email at <a href="/cdn-cgi/l/email-protection#c68a8794949fe887e89687888392928786858496e8828e95e8818990"><span class="__cf_email__" data-cfemail="b5f9f4e7e7ec9bf49be5f4fbf0e1e1f4f5f6f7e59bf1fde69bf2fae3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
notice of proposed rulemaking. The Department of Homeland Security
(DHS) and U.S. Customs and Border Protection (CBP) also invite comments
that relate to the economic, environmental, or federalism effects that
might result from this proposal.
Comments that will provide the most assistance to DHS and CBP in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change. Comments should be submitted through the Federal eRulemaking
Portal.
II. Background
A. Statutory Authorization and History
1. Initial Supplemental H-1B and L-1 Fee
H-1B and L-1 classifications are temporary nonimmigrant worker
classifications. H-1B and L-1 classifications are authorized under
sections 101(a)(15)(H)(i)(b) and (L), respectively, of the Immigration
and Nationality Act (INA), as amended (8 U.S.C. 1101(a)(15)(H)(i)(b),
(L)). H-1B status is a nonimmigrant classification for noncitizens who
work in certain specialty services or occupations. L-1 status allows
companies to seek a temporary intracompany transfer of certain
noncitizen employees who perform executive or managerial functions or
have specialized knowledge.\1\
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\1\ For more information on H-1B nonimmigrant classification,
see U.S. Citizenship and Immigration Services (USCIS), H-1B
Specialty Occupations, DOD Cooperative Research and Development
Project Workers, and Fashion Models, <a href="https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations">https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations</a>. For more
information on L-1 nonimmigrant classification, see USCIS, L-1A
Intracompany Transferee Executive or Manager, <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager">https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager</a>; and USCIS, L-1B Intracompany
Transferee Specialized Knowledge, <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge">https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge</a>.
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In 2010, Congress established a supplemental fee for certain
employers petitioning for beneficiaries to obtain H-1B or L-1 status
(2010 Supplemental Fee). See section 402 of the Act of August 13, 2010,
Public Law 111-230, 124 Stat. 2485, 2487 (Pub. L. 111-230) (8 U.S.C.
1101 note). The 2010 Supplemental Fee applied to employers that employ
50 or more employees in the United States with more than 50 percent of
the employees in the United States in H-1B or L-1 nonimmigrant status
(covered employers). Sec. 402, Public Law 111-230. The statute required
covered employers to pay an increase to ``the filing fee and fraud
prevention and detection fee'' in the amount of $2,000 or $2,250 for H-
1B or L-1 petitions, respectively. Sec. 402, Public Law 111-230.
The statutory language in Public Law 111-230 required covered
employers to pay the 2010 Supplemental Fee at the time that a fraud
detection and prevention fee (Fraud Fee) is collected. Sec. 402, Public
Law 111-230. The $500 Fraud Fee is established under separate statutory
authority. See sec. 426(a) of the H-1B Visa Reform Act of 2004, Public
Law 108-447, 118 Stat. 2809, 3357 (the 2004 H-1B Visa Reform Act) (8
U.S.C. 1184(c)(12)(A), section 214(c)(12)(A) of the INA). Pursuant to
section 426(b) of the 2004 H-1B Visa Reform Act, the Department of
State, in collaboration with DHS and the Department of Labor, uses
Fraud Fee collections to combat fraud in immigration processes. 8
U.S.C. 1356(v)(2), section 286(v)(2) of the INA. With limited
exceptions, the statute requires employers to pay the Fraud Fee when
petitioning for an initial grant of H-1B or L-1 nonimmigrant status or
for change of employer petitions for beneficiaries already in H-1B or
L-1
[[Page 48340]]
status. See sec. 426(a) of the 2004 H-1B Visa Reform Act.
Although Public Law 111-230 could reasonably be considered as
ambiguous because, among other things, it was not clear whether the
increased fee applied once per covered petition or twice, that is, as
an increase to the petition fee and separately as an increase to the
Fraud Fee, DHS interpreted the 2010 Supplemental Fee to apply only once
per covered petition and only when the Fraud Fee applied. Accordingly,
DHS implemented regulations applying the 2010 Supplemental Fee to
petitions subject to the Fraud Fee seeking initial grants of H-1B or L-
1 status and change of employer petitions for beneficiaries already in
H-1B or L-1 status, consistent with applicability of the Fraud Fee. See
76 FR 53764, 53768, 53781. The 2010 Supplemental Fee sunset on
September 30, 2015, after an extension by Congress.\2\
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\2\ See sec. 402, Public Law 111-230, (establishing the initial
sunset date for the 2010 Supplemental Fee as September 30, 2014), as
amended by sec. 302 of the James Zadroga 9/11 Health and
Compensation Act of 2010, Public Law 111-347, 124 Stat. 3623, 3667
(extending the sunset date to September 30, 2015).
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2. 9-11 Response and Biometric Entry-Exit Fee
On December 18, 2015, Congress established the ``9-11 Response and
Biometric Entry-Exit Fee'' for certain H-1B and L-1 petitions (9-11
Biometric Fee). See Consolidated Appropriations Act, 2016, Div. O, sec.
402(g), Public Law 114-113, 129 Stat. 2242, 3006 (Pub. L. 114-113) (49
U.S.C. 40101 note).\3\ Public Law 114-113 instated the 9-11 Biometric
Fee after the 2010 Supplemental Fee expired. The amount of the 2010
Supplemental Fee was doubled for the 9-11 Biometric Fee to be $4,000
and $4,500 for H-1B and L-1 petitions, respectively. Id. At the same
time, Congress also established the 9-11 Response and Biometric Exit
Account (9-11 Biometric Account), into which 50 percent of the funds
from the 9-11 Biometric Fee collections are deposited, up to $1
billion. Id. DHS may use the funds available in the 9-11 Biometric
Account to implement the biometric entry and exit data system required
by section 7208 of the Intelligence Reform and Terrorism Prevention Act
of 2004, Public Law 108-458, 118 Stat. 3638, 3817 (IRTPA), (8 U.S.C.
1365b). Sec. 402(g), Public Law 114-113. Section 7208 of the IRTPA (8
U.S.C. 1365b), adopting recommendations by the National Commission on
Terrorist Attacks Upon the United States (also known as the 9/11
Commission), requires DHS to implement a biometric entry-exit system
that uses biometric data to confirm the identity of travelers entering
and exiting the United States. As the DHS component responsible for
controlling the border and monitoring the arrival and departure of U.S.
citizens and noncitizens, CBP implements biometric operations in the
land, sea, and air environments.\4\ Pursuant to congressional
extension, the 9-11 Biometric Fee is currently set to expire on
September 30, 2027.\5\
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\3\ The 9-11 Biometric Fee is a fee related to petitions for H-
1B and L-1 classification and is discussed in those terms in this
proposed rulemaking. Although not all those seeking H-1B and L-1
classification are required to obtain a visa, the headings in the
statute refer to temporary fee increases for H-1B and L-1 visas, and
consequently the headings in the implementing regulations refer to
fees for H-1B and L-1 visas. Accordingly, the subject heading of
this document and the proposed regulatory headings also refer to
fees for H-1B and L-1 visas.
\4\ See sec. 411 of the Homeland Security Act of 2002, as
amended by sec. 802 of the Trade Facilitation and Trade Enforcement
Act of 2015, Public Law 114-125, 130 Stat. 122, 199 (HSA) (6 U.S.C.
211); secs. 215.8 and 235.1 of title 8 of the Code of Federal
Regulations (8 CFR 215.8 and 235.1).
\5\ See sec. 402(g), Public Law 114-113 (establishing the
initial sunset date for the 9-11 Biometric Fee as September 30,
2025), as amended by sec. 30203(b) of the Bipartisan Budget Act of
2018, Public Law 115-123, 132 Stat. 64, 126 (extending this date to
September 30, 2027).
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The statutory language establishing the 9-11 Biometric Fee is
similar to that of Public Law 111-230. However, Public Law 114-113 has
two important distinctions, beyond the increased fee amounts. First,
Congress added the word ``combined,'' thereby resolving a potential
ambiguity that existed in Public Law 111-230 and clarifying that the
fee increase served as a single fee increase rather than as separate
fee increases to both the filing fee and the Fraud Fee. Sec. 402(g),
Public Law 114-113. Second, with respect to the types of petitions for
which the fees must be submitted, Congress inserted the phrase
``including an application for an extension of such status.'' Id. This
addition clarified that the 9-11 Biometric Fee is required for both
petitions seeking an initial grant of status and extension-of-stay
petitions.
B. Prior DHS Rulemaking Addressing the 9-11 Biometric Fee
Although the statutory changes discussed above clarified some of
the ambiguous language in Public Law 111-230, the new legislation,
Public Law 114-113, could still be reasonably considered ambiguous
concerning the issue of whether covered employers filing extension-of-
stay petitions must pay the 9-11 Biometric Fee for all extension
petitions or only those involving a change in employer. At the time
that the 9-11 Biometric Fee was established in 2015, DHS interpreted
the new language in Public Law 114-113 consistent with its prior
interpretation; that is, the 9-11 Biometric Fee only applies when the
Fraud Fee also applies. Accordingly, DHS implemented regulations in a
final rule published on October 24, 2016 (2016 Fee Rule) that set forth
its interpretation. See 81 FR 73292.
In the years following the 2016 Fee Rule, DHS monitored the
collection of the 9-11 Biometric Fee and evaluated other permissible
interpretations of the ambiguous statutory language in Public Law 114-
113. After careful consideration, on November 14, 2019, DHS proposed an
interpretation expanding the circumstances in which the 9-11 Biometric
Fee would apply (2019 Fee NPRM), as well as proposing numerous other
changes related to fees collected by DHS. 84 FR 62280. DHS received
several comments on the 2019 Fee NPRM opposing the proposed 9-11
Biometric Fee. After considering the comments, on August 3, 2020, DHS
adopted the 9-11 Biometric Fee interpretation that would require the
additional fee for all H-1B or L-1 extension of stay petitions filed by
covered employers, among other changes, in a Final Rule (2020 Fee
Rule). See 85 FR 46788. For additional information on the comments and
DHS' responses, see the 2020 Fee rule at 85 FR 46866. However, before
the 2020 Fee Rule could go into effect, it was enjoined in its entirety
during the course of litigation unrelated to the 9-11 Biometric Fee.\6\
Accordingly, DHS never changed its collection practices regarding the
9-11 Biometric Fee and currently collects the 9-11 Biometric Fee only
for petitions filed by covered employers seeking initial grants of H-1B
or L-1 status or change of employer petitions filed by covered
employers for beneficiaries already in H-1B or L-1 status, including
change of employer petitions requesting an extension of
[[Page 48341]]
such status, but not for other extension of stay requests.\7\
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\6\ See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520
(N.D. Cal. Sept. 29, 2020) (granting plaintiffs' motion to enjoin
the 2020 Fee Rule in its entirety by finding plaintiffs met initial
burden to show then-Acting Secretary of DHS Chad Wolf lacked
authority to approve the 2020 Fee Rule and further that the 2020 Fee
Rule violated procedural and substantive requirements under the
Administrative Procedure Act in adopting certain asylum- and
naturalization-related new fees, fee increases, and fee waiver
reductions); see also Nw. Immigrant Rts. Project v. U.S. Citizenship
& Immigr. Servs., 496 F. Supp. 3d 31 (D.D.C. Oct. 8, 2020) (granting
plaintiffs' motion for preliminary injunction challenging the fee
increases, new fees, and fee waiver reductions adopted in the 2020
Fee Rule on similar grounds).
\7\ Although the 2020 Fee Rule was enjoined prior to its
effective date, the regulatory language at 8 CFR 106.2(c)(8)-(9) was
revised in 2020 to reflect the changes adopted in the 2020 Fee Rule.
85 FR 46788. On January 31, 2024, DHS published a final rule
replacing the language at 8 CFR 106.2(c)(8)-(9) with the pre-2020
Fee Rule version of the regulations in order to align the
regulations with DHS practice in light of the injunction on the 2020
Fee Rule (2024 Final Rule). 89 FR 6194. In the 2024 Final Rule, DHS
noted that the 9-11 Biometric Fee may be the subject of a future
rulemaking. Id at 6240.
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III. Purpose of 9-11 Biometric Fee and Need for Rulemaking
A. The Purpose of the 9-11 Biometric Fee
In Public Law 114-113, Congress expressly intended for the 9-11
Biometric Fee to fund the biometric entry and exit programs it mandated
earlier in order to improve security, combat visa and travel document
fraud, and protect our country against terrorism. As discussed above,
Congress enacted the IRTPA in 2004 and implemented recommendations made
by the 9/11 Commission. See Tit. VII of the IRTPA. Section 7208 of the
IRTPA (8 U.S.C. 1365b) requires DHS to implement a biometric entry and
exit data system. Congress expressed in the IRTPA that a biometric
entry-exit data system is ``an essential investment in efforts to
protect the United States by preventing the entry of terrorists.'' Sec.
7208(a) of the IRTPA (8 U.S.C. 1365b(a)). Moreover, the IRTPA
explicitly highlights certain goals for DHS and the biometric entry-
exit system in addition to serving as a vital counterterrorism
mechanism, which include efficiently screening travelers, integrating
and modifying relevant databases to address increased volume and usage,
and improving database search capacities. Sec. 7208(h) of the IRTPA (8
U.S.C. 1365b(h)).
In 2015, Congress established the 9-11 Biometric Account for the
purpose of funding the biometric entry-exit system that Congress
mandated in the IRTPA. Sec. 402(g), Public Law 114-113. Congress also
implemented the 9-11 Biometric Fee, which replaced and doubled the
expired 2010 Supplemental Fee, in order to fund the 9-11 Biometric
Account and, by extension, DHS's biometric entry-exit data system. DHS
believes the interpretation of Public Law 114-113 proposed in this
rulemaking would better align the regulations with legislative intent
and better enable DHS to meet its congressional mandates.
CBP is the primary DHS component responsible for implementing an
integrated, automated entry-exit system that matches the biographic
data and biometric information of noncitizens entering and departing
the United States at land, sea, and air points of entry. See sec.
411(c)(10) of the HSA (6 U.S.C. 211(c)(10)); sec. 7208 of the IRTPA (8
U.S.C. 1365b). Pursuant to CBP's mission to control the border and
regulate the arrival and departure of both U.S. citizens and
noncitizens, CBP has the authority to confirm the identity of all
travelers and verify that the travelers are the authorized bearers of
their travel documents. See sec. 411 of the HSA (6 U.S.C. 211); and 8
CFR 235.1. An integrated biometric entry-exit system has provided the
most accurate way to verify an individual's identity. By operating
these systems, CBP can therefore improve security and effectively
combat attempts by terrorists who use false travel documents to
circumvent border checkpoints. Further, biometrically verifying that a
person who presents a travel document is the true bearer of that
document helps to prevent visa and immigration fraud and the fraudulent
use of legitimate travel documentation.
The funding that DHS receives from the 9-11 Biometric Account
supports critical biometric entry-exit operations in the land, sea, and
air entry environments that are ongoing and must be sustained in order
to continue their use.\8\ Specifically, the 9-11 Biometric Account
buttresses the development, operations, and maintenance of the Traveler
Verification Service (TVS).\9\ TVS is the facial comparison matching
service that serves as the backbone of CBP's biometric entry-exit data
system.\10\ TVS effectively and efficiently matches passengers to the
travel documents they present to CBP.\11\ Maintaining TVS enables CBP
to continue preserving the United States' crucial health, operational,
and national security interests.\12\
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\8\ Section 402(g) of Public Law 114-113 provides that DHS may
draw from the 9-11 Biometric Account to implement the biometric
entry-exit data system as required by Congress. DHS directs these
funds to CBP because CBP is the agency ultimately responsible for
implementing the biometric entry-exit data system. See secs.
411(c)(10), (g)(3) of the HSA (6 U.S.C. 211(c)(10), (g)(3)); sec.
7208 of the IRTPA (8 U.S.C. 1365b).
\9\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the
Traveler Verification Service 1 (Nov. 14, 2018), <a href="https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf">https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf</a>.
\10\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the
Traveler Verification Service 4 (Nov. 14, 2018), <a href="https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf">https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf</a>. See id. at 4.
\11\ See id. at 6; CBP, Traveler Verification Service for
Simplified Travel (2018), <a href="https://www.cbp.gov/sites/default/files/assets/documents/2018-Aug/Traveler_Verification_Service_For_Simplified_Travel3.pdf">https://www.cbp.gov/sites/default/files/assets/documents/2018-Aug/Traveler_Verification_Service_For_Simplified_Travel3.pdf</a>.
\12\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the
Traveler Verification Service 16 (Nov. 14, 2018), <a href="https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf">https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf</a>.
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DHS's biometric entry-exit data system also directly and positively
affects the travel industry by restoring consumer confidence in travel
safety. Using biometric technology, air and sea partners can facilitate
check-in, security, and boarding processes that historically involved
long lines, heavy personal interaction, and frequent handling of travel
documents. The implementation of biometric technology, namely facial
comparison, in all travel environments encourages contactless travel
that involves minimal physical contact, which is more efficient and
increases the safety of travelers, CBP officers, and port personnel.
In addition to streamlining travel and restoring consumer
confidence, the use of facial biometric matching protects the identity
of travelers and provides another layer of security. TVS reduces the
number of times that travelers must show their travel documents, which
contain personally identifiable information, to government and carrier
personnel throughout both entry and exit processes. The use of facial
biometric matching has also proven to be an effective tool in
combatting the use of stolen and fraudulent travel and identity
documents. Since the program's inception in 2018, CBP officers at U.S.
airports have successfully intercepted 77 impostors who were denied
admission to the United States and identified 1,806 imposters on
arrival in the land pedestrian environment. Further, since June 2017
through December 5, 2023, DHS has confirmed over 304,004 overstays
through the use of facial biometric matching at exit.\13\
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\13\ Imposter and overstay numbers are tracked internally by CBP
and not published publicly. This information is based on information
provided by CBP's Office of Field Operations via email on September
12, 2023. Partial overstay numbers are reported in DHS's Entry/Exit
Overstay Reports, available at <a href="https://www.dhs.gov/publication/entryexit-overstay-report">https://www.dhs.gov/publication/entryexit-overstay-report</a>.
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DHS's current biometric entry-exit operations have proven
successful in enhancing national security and public safety.\14\
Ultimately, lack of adequate funding poses a dire threat to DHS's
mission, CBP officers, and public safety. Without the proposed
regulatory changes to the collection of the 9-11 Biometrics Fee, DHS
cannot maintain its current biometric entry operations or continue
implementing other essential
[[Page 48342]]
entry and exit programs. Failure to maintain or continue implementing
DHS's biometric entry and exit operations increases risks to security
vulnerabilities, interoperability and data management issues, cyber
resilience in the event of a cyberattack from criminal hackers, system
availability and reliability, and system scalability to meet the
demands of travel partners. The 9-11 Biometric Fee is essential to
funding these biometric entry-exit programs, and the regulations
proposed will directly support DHS's fulfilment of its congressional
mandates.
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\14\ For more information on CBP's biometrics program, please
visit CBP's website at <a href="https://biometrics.cbp.gov">https://biometrics.cbp.gov</a>.
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B. Need for Rulemaking
DHS must interpret ambiguous statutory language to implement the
responsibilities that Congress has assigned to the agency. The language
in Public Law 114-113 establishing the 9-11 Biometric Fee is ambiguous
regarding the fee's applicability to extension-of-stay petitions. DHS
must therefore resolve the statutory ambiguity to determine whether the
9-11 Biometric Fee applies to all extension-of-stay petitions by
covered employers.\15\ As discussed above, Public Law 114-113
established the 9-11 Biometric Fee by again enacting and doubling the
2010 Supplemental Fee to be $4,000 for H-1B petitions and $4,500 for L-
1 petitions. Congress also added new phrasing in two pertinent places
that guided the Department's proposed interpretation: ``. . . the
combined filing fee and [Fraud Fee] required to be submitted with an
application for admission [as an H-1B or L nonimmigrant], including an
application for an extension of such status, shall be increased.'' Sec.
402(g), Public Law 114-113 (emphasis added).
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\15\ ``Covered employers'' are those employers with more than 50
employees in the United States and where more than 50 percent of the
employees in the United States are in H-1B or L-1 nonimmigrant
status. Sec. 420(g), Public Law 114-113.
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Previously, DHS had to determine whether the 9-11 Biometric Fee
applies to all extension petitions by covered employers or just those
for which the Fraud Fee is also charged (change of employer petitions
for a beneficiary already in H-1B or L-1 status, including a change of
employer petition that requests an extension of such status). In 2016,
DHS interpreted the 9-11 Biometric Fee to apply only when the Fraud Fee
also applied. 81 FR 73292. In 2019, DHS considered that applying the 9-
11 Biometric Fee to all extension petitions would be a significant new
substantive expansion of the 9-11 Biometric Fee compared to the
interpretation that DHS adopted from 2010-2015 for the 2010
Supplemental Fee. At that time, DHS considered the latter reading would
be consistent with the scope of the 2010 Supplemental Fee (although in
the higher amounts provided by Pub. L. 114-113). See 2019 Fee NRPM, 84
FR 62280, 62322.
The construction of the statutory ambiguity in Public Law 114-113
that DHS adopted in 2016 was not, however, the only reasonable one.
Another reasonable interpretation of that statute is that the 9-11
Biometric Fee applies to all extension of stay petitions even when the
Fraud Fee is not applicable. Under this alternative interpretation of
Public Law 114-113, the language ``including an application for an
extension of such status'' is a substantive amendment, and the
insertion of the word ``combined'' is a clarifying one. It is plausible
that Congress added the reference to extension of status so that the 9-
11 Biometric Fee would be collected for all extension of stay
petitions, not just those where a change of employer is also requested.
Under this interpretation, the insertion of the word ``combined'' can
be viewed as a clarifying edit that the increase to the fee is applied
only once per petition and not once for the filing fee and once for the
Fraud Fee such that it might apply two times for some petitions. In
that case, a covered employer would pay the filing fee plus the Fraud
Fee plus the applicable 9-11 Biometric Fee ($4,000 for H-1B petitions
or $4,500 for L-1 petitions). When the Fraud Fee does not apply, the
``combined filing fee and [Fraud Fee]'' is simply the filing fee plus
$0, such that covered employers would pay the filing fee + $0 for the
Fraud Fee + the applicable 9-11 Biometric Fee. This interpretation
would give meaning to all of Congress's alterations to the earlier
statute.
Following the passage of Public Law 114-113, DHS considered
alternative interpretations of the ambiguous language, but ultimately
decided, at that time, to maintain its earlier interpretation, that the
9-11 Biometric Fee applies only when the Fraud Fee applies. DHS
internally noted that alternative interpretations were also reasonable
but chose to maintain the status quo for that time while internally
reviewing alternative interpretations. See 2019 Fee NRPM, 84 FR 62280,
62322. DHS has reexamined this matter and believes that its alternative
interpretation of Public Law 114-113, proposed here, is more consistent
with the goal of the statute to ensure employers that employ a
substantial number of H-1B or L-1 nonimmigrant workers pay an
additional fee by making the 9-11 Biometric Fee applicable to all
petitions by covered employers, regardless of whether or not the Fraud
Fee also applies. In other words, the 9-11 Biometric Fee should apply
to all H-1B or L-1 petitions filed by covered employers seeking initial
classification of a beneficiary as an H-1B or L-1 nonimmigrant or an
extension of stay for those already in such status, irrespective
whether the extension of stay request is for a change of covered
employers or for the purpose of remaining employed with the original
covered employer.
In addition to putting forth a permissible interpretation of Public
Law 114-113, DHS is also affirming that the interpretation in this
rulemaking more closely aligns with Congress's objective to require an
additional fee for covered employers, who by definition rely on H-1B
and L-1 nonimmigrants for 50 percent of their workforce.\16\
Accordingly, a reasonable interpretation of Public Law 114-113 is that
Congress intended for covered employers to pay the 9-11 Biometric Fee
even when the beneficiaries remain with the same employer. Without this
proposed change, covered employers can avoid paying the 9-11 Biometric
Fee while employing a substantial number of H-1B and L-1 nonimmigrants
as long as the beneficiary remains employed by the same covered
employer.\17\ The ability of these petitioners to avoid paying the 9-11
fee entirely in some cases would appear to be against the Congressional
intent in establishing these fees. From fiscal year 2018 to fiscal year
2022, 29 percent of all H-1B petitions were subject to the 9-11
Biometric Fee. Had this rule been in effect for that same time period,
the percentage of H-1B petitions that would have been subject to the 9-
11 Biometric Fee would have been 84 percent of all H-1B petitions.\18\
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\16\ See USCIS, Fee Increase for Certain H-1B and L-1 Petitions
(Pub. L. 114-113), <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/fee-increase-for-certain-h-1b-and-l-1-petitions-public-law-114-113">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/fee-increase-for-certain-h-1b-and-l-1-petitions-public-law-114-113</a>.
\17\ Individual L-1 petitions (Form I-129S) filed on the basis
of a previously approved ``blanket L'' petition are currently
subject to the Fraud Fee and, by extension, the 9-11 Biometric Fee.
USCIS already considers this a change of employer, even if the
petitioner is covered under the same ``blanket L'' approval as the
previous petitioner. Therefore, the proposed changes will not alter
current USCIS practice in this regard.
\18\ Due to limitations in available data, similar calculations
are not available for L-1 petitions.
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Significantly, a delay in this additional funding will continue to
jeopardize CBP's ability to meet its congressional mandate to enhance
national security by deploying a fully integrated biometric entry-exit
data
[[Page 48343]]
system. Without additional funding, CBP will be unable to maintain its
current biometric entry operations, as well as ensure that TVS
continues to be available to CBP and external stakeholders. CBP will
also be unable to expand biometric confirmation to additional sea and
land modalities at points of entry to the United States and fully
implement a comprehensive biometric exit system at all land, sea, and
air exits.\19\
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\19\ Since 2004, DHS has worked to develop and implement a
comprehensive biometric entry and exit data system as required by
section 7208 of the IRTPA. See, e.g., Implementation of the United
States Visitor and Immigrant Status Indicator Technology Program
(``US-VISIT''); Biometric Requirements, 69 FR 468 (Jan. 5, 2004).
Additional resources discussing DHS's plans to enhance biometric
operations are DHS's annual Entry/Exit Overstay Reports, available
at <a href="https://www.dhs.gov/publication/entryexit-overstay-report">https://www.dhs.gov/publication/entryexit-overstay-report</a>.
---------------------------------------------------------------------------
Actual collections have fallen short of both anticipated
collections and what is necessary to maintain and expand biometric
operations. In December 2015, the Congressional Budget Office (CBO)
published a report on the fee provisions in Public Law 114-113 and
estimated annual revenues of $420 million per year (except for $380
million in the first year of FY 2016) from the 9-11 Biometric Fee
through its lifespan.\20\ Pursuant to the statute, 50 percent of those
annual total collections--or an estimated $210 million per year--would
be deposited into the 9-11 Biometric Account and made available to DHS
and CBP, up to $1 billion. However, actual collections pre-COVID-19
repeatedly fell well below CBO's estimates: $158 million in FY 2016,
$125 million in FY 2017, $119 million in FY 2018, and $118 million in
FY 2019.\21\ Notwithstanding the impact of COVID-19 on collections
during FYs 2020-21,\22\ DHS believes that collections have fallen short
of CBO projections primarily because the current statutory
interpretation fails to apply the 9-11 Biometric Fee to all extension
petitions regardless of whether there is a change of employer. Both the
previous interpretation and the current interpretation of Public Law
114-113 are reasonable based on the wording in the statute; therefore,
DHS is proposing to amend the regulations to better align with its
Congressional mandate to implement a fully integrated biometric entry-
exit system.
---------------------------------------------------------------------------
\20\ See Congressional Budget Office, Cost Estimate on H.R.
2029, Amendment #1 (2016 Omnibus) Table 3 (Dec. 16, 2015), <a href="https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr2029amendment1divisionsa.pdf">https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr2029amendment1divisionsa.pdf</a>.
\21\ FY 2018-2021 data are based on data provided by USCIS via
email between 11/30/2021 and 12/21/2021.
\22\ FY 2018-2021 data are based on data provided by USCIS via
email between 11/30/2021 and 12/21/2021. The collection totals for
FYs 2020 and 2021 were $72 million and $57 million, respectively.
DHS recognizes the impact COVID-19 had on collection totals during
this time frame but emphasizes that collection totals fell short of
estimated collections prior to the COVID-19 pandemic.
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IV. Proposed Changes to Regulations
A. Proposed Amendment to Collection of 9-11 Biometric Fees
DHS proposes to amend the regulations at 8 CFR 106.2(c)(8) and (9)
to specify that the 9-11 Biometric Fee will apply to all H-1B and L-1
extension-of-stay petitions in addition to all previously covered H-1B
and L-1 petitions.\23\ Accordingly, DHS proposes to replace the phrase
``certain petitioners'' with ``all petitioners'' in the subparagraphs
concerning both H-1B and L-1 petitioners. This proposed change will
allow DHS to charge all covered petitioners the 9-11 Biometric Fee,
including those seeking extension petitions that do not involve a
change of employer, as opposed to only those petitioners whose
petitions are also subject to the Fraud Fee.
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\23\ As stated previously, 8 CFR part 106 and the other
regulatory changes in the 2020 Fee Rule have been codified although
DHS is enjoined from implementing or enforcing them and is still
charging the fees as set forth in 8 CFR 103.7(b)(1) as they existed
prior to the 2020 Fee Rule. DHS is proposing in this rule to replace
the enjoined provisions at 8 CFR 106.2(c)(7) and (8) pertaining to
the 9-11 Biometric Fees. The 9-11 Biometric Fee provisions are
proposed at 8 CFR 106.2(c)(8) and (9) in the 2023 Fee NPRM, and so
are proposed as such here.
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B. Proposed Clarifying Amendments
DHS also proposes certain clarifying amendments. First, DHS
proposes to insert the phrase ``except for petitioners filing an
amended petition without an extension of stay request.'' Amended
petitions are filed to notify USCIS of a material change in the terms
or conditions of employment or the beneficiary's eligibility as
specified in the original approved petition. See USCIS, Form I-129,
Instructions for Petition for Nonimmigrant Worker, <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf</a>. Under
the proposed regulations, covered petitioners filing an H-1B or L-1
amended petition that does not include an extension of stay request
would not be required to submit the 9-11 Biometric Fee.
DHS further proposes to clarify the method by which it determines
whether a petitioner is a covered employer. Currently, DHS counts all
full-time and part-time employees who hold H-1B or L-1 status in order
to determine whether an employer meets the definition of ``covered
employer'' by reaching the 50 percent threshold. DHS requires the 9-11
Biometric Fee once the threshold is met to be considered a covered
employer. DHS proposes adding the words ``in the aggregate'' to both
provisions in 8 CFR 106.2(c)(8) and (9) to clarify its current
practice.
V. Statutory and Regulatory Reviews
A. Executive Orders 12866, 14094, and 13563
Executive Order 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and Executive
Order 13563 (Improving Regulation and Regulatory Review) direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
The Office of Management and Budget (OMB) has not designated this
proposed rule a significant regulatory action under section 3(f) of
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, OMB has not reviewed this proposed rule.
As a result of this rule, DHS expects H-1B and L-1 transfer
payments from fee payers to the U.S. Government to increase by a
combined total of $157.3 million annually. This will ensure that
covered employers \24\ would have to pay the 9-11 Biometric Fee as well
as increase funds to implement and maintain CBP's biometrics programs.
Public Law 114-113 exempts employers that do not employ 50 or more
employees with more than 50 percent of employees under H-1B and/or L-1
status from the 9-11 Biometric Fee.
---------------------------------------------------------------------------
\24\ ``Covered employers'' are those employers with more than 50
employees in the United States and where more than 50 percent of the
employees in the United States are in H-1B or L-1 nonimmigrant
status. Sec. 402(g), Public Law 114-113.
---------------------------------------------------------------------------
1. Purpose of the Rule
In 2020, after evaluating alternative interpretations of Public Law
114-113, DHS adopted the 2020 Fee Rule, which made the 9-11 Biometric
Fee applicable to all petitions by covered employers, except for
amended petitions without an extension of stay request, regardless of
whether the Fraud Fee also applies. DHS believes that Congress's intent
with the 9-11 Biometric Fee was twofold. First, to ensure that covered
employers
[[Page 48344]]
would generally have to pay an additional fee of $4,000 or $4,500 for
H-1B or L-1 petitions, respectively. Second, to fund congressionally
mandated biometric entry and exit programs that protect against
terrorism. However, the interpretation that DHS adopted in the 2020 Fee
Rule never went into effect because the 2020 Fee Rule was enjoined in
its entirety during litigation unrelated to the 9-11 Biometric Fee. DHS
maintains that the interpretation adopted in the 2020 Fee Rule is most
consistent with the statute's goals. Therefore, DHS is proposing to
adopt regulations that better align with Congress's intent for Public
Law 114-113. The proposed change would expand the instances in which
the 9-11 Biometric Fee applies by applying the 9-11 Biometric Fee to
all H-1B or L-1 petitions seeking initial grants of status or an
extension of stay, regardless of whether the Fraud Fee applies. By
implementing this alternative interpretation of ambiguous language in
Public Law 114-113, DHS is effectuating Congressional intent because
the increased collections will provide necessary funds for the
implementation and maintenance of biometric entry and exit data systems
as required by Congress under section 7208 of the IRTPA.
CBP is responsible for implementing an integrated and automated
entry-exit system that matches biographic data and biometrics of
noncitizens entering and departing the United States. CBP currently
relies on the 9-11 Biometric Fee to fund several processes and programs
such as TVS, which benefit the public by increasing consumer confidence
in travel safety and speeding up the boarding process while encouraging
contactless travel. CBP's use of biometrics has also proven to be
effective in combatting the use of stolen and fraudulently presented
travel and identity documents. The 9-11 Biometric Fee funds biometrics
programs that also benefit other government agencies by providing
assurance that the travelers arriving match their travel documents.
2. Transfer Payments From Rule
Fees paid to government agencies for goods and services provided by
the agency are considered transfer payments because they are monetary
payments from payers to the government and do not affect the total
resources available to society. Costs associated with the provision of
these goods and services are considered government costs of the
regulation. Therefore, in this regulatory impact analysis, DHS
discusses the additional transfer payments that H-1B and L-1
petitioners will experience as a result of this rule in qualitative,
and when possible, quantitative, and monetized terms. This analysis
evaluates the impact on transfer payments for H-1B petitions and L-1
petitions separately due to the differences in fee amounts and the data
available. The period of analysis is for fiscal years (FY) 2023-2027.
CBP bases its estimates on data from FY 2018-2022 due to data
limitations.\25\
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\25\ See sec. 402(g), Public Law 114-113 (establishing the
initial sunset date for the 9-11 Biometric Fee as September 30,
2025), as amended by sec. 30203(b) of the Bipartisan Budget Act of
2018, Public Law 115-123, 132 Stat. 64, 126 (extending this date to
September 30, 2027.)
---------------------------------------------------------------------------
Currently, of the H-1B and L-1 petitions submitted by covered
employers, only those requesting new employment or a change of employer
are required to pay the 9-11 Biometric Fee. This rule will increase
transfer payments from H-1B and L-1 petitioners by also applying the 9-
11 Biometric Fee to H-1B and L-1 extension-of-stay petitions filed by
covered employers.
The H-1B submissions currently subject to the 9-11 Biometric Fee
and the resulting transfer payments are shown in Table 1.\26\ Projected
annual submissions are an average of submissions from FY 2018-2022.
Multiplying the projected submissions by the fee amount of $4,000
provides the projected annual transfer payments in the baseline.
Transfer payments shown in Table 1 are not a result of this rule and
are not added to those in Table 2 when totaling the additional transfer
payments as a result of this rule; these fee payments are already
occurring in the baseline. The values of Table 1 and Table 2 can be
added together for an estimate of the total petitions subject to the 9-
11 Biometric Fee and the transfer payments for covered H-1B employers
under this rule.
---------------------------------------------------------------------------
\26\ FY 2018-2021 data are based on data provided by USCIS via
email between 11/30/2021 and 12/21/2021 and FY 2022 data was
provided by USCIS via email between 3/17/23 and 5/8/23.
Table 1--Baseline Annual H-1B Submissions and Transfer Payments
----------------------------------------------------------------------------------------------------------------
Total actual &
A--New E--Change of Total projected
Fiscal year employment employer submissions Fee amount transfer
payments
----------------------------------------------------------------------------------------------------------------
2018.......................... 16,511 7,016 23,527 $4,000 $93,907,000
2019.......................... 17,669 5,878 23,547 4,000 93,924,000
2020.......................... 10,149 4,616 14,765 4,000 58,692,000
2021.......................... 8,583 4,431 13,014 4,000 51,860,500
2022.......................... 6,715 3,925 10,640 4,000 43,664,000
2023.......................... 11,926 5,174 17,100 4,000 68,400,000
2024.......................... 11,926 5,174 17,100 4,000 68,400,000
2025.......................... 11,926 5,174 17,100 4,000 68,400,000
2026.......................... 11,926 5,174 17,100 4,000 68,400,000
2027.......................... 11,926 5,174 17,100 4,000 68,400,000
----------------------------------------------------------------------------------------------------------------
<bullet> Fee requirements are not changing for these categories under this rule.
<bullet> Projected submissions for 2023-2027 are based on the average of submissions for 2018-2022 rounded up.
<bullet> Total Actual Transfer Payments differ from expected values based on calculations (Total Submissions x
Fee Amount) due to differences in the timing of filings and when collections take place.
Table 2 shows the number of additional annual H-1B submissions to
which the 9-11 Biometric Fee would apply upon the implementation of
this rule. As done in Table 1, the projected submissions for FY 2023-
2027 are an average of the FY 2018-2022 submissions and multiplying the
projected submissions by the $4,000 fee provides the projected annual
transfer payments that would result if this rule is finalized as
proposed.
[[Page 48345]]
Table 2--Annual H-1B Submissions Newly Subject to Fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
B--Continuation
of previously C--Change in D--New Total actual &
Fiscal year approved previously concurrent F--Amended Total Fee amount projected
employment approved employment petition submissions transfer
without change employment payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018................................. 20,925 7,403 9 16,705 45,042 $0 $0
2019................................. 27,127 7,362 24 9,127 43,640 0 0
2020................................. 21,337 7,373 27 13,708 42,445 0 0
2021................................. 7,826 2,667 105 8,727 19,325 0 0
2022................................. 4,440 2,479 144 4,314 11,377 0 0
2023................................. 16,331 5,457 62 10,517 32,367 4,000 129,468,000
2024................................. 16,331 5,457 62 10,517 32,367 4,000 129,468,000
2025................................. 16,331 5,457 62 10,517 32,367 4,000 129,468,000
2026................................. 16,331 5,457 62 10,517 32,367 4,000 129,468,000
2027................................. 16,331 5,457 62 10,517 32,367 4,000 129,468,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
<bullet> The categories listed in this table are based on options for question 2 in part 2 of Form I-129.
<bullet> The 9-11 Biometric Fee is only applicable to petitions in these categories which also include an extension of stay request and do not reflect
the total number of petitions received.
<bullet> The 9-11 Biometric Fee was not required for submissions pursuant to the categories listed this table for 2018-2022.
<bullet> Projected submissions for 2023-2027 are based on the average of submissions for 2018-2022 rounded up.
The numbers of H-1B petitions shown in Table 1 are based on
petitioners' responses to Form I-129 Part 2, Questions 2 and 4,
indicating the purpose of the request was New Employment or a Change of
Employer. DHS assumes that petitioners newly required to pay the 9-11
Biometric Fee as a result of this rule will continue participating in
the H-1B and L-1 programs at their current rate because this is a known
fee and an expected cost of participation in the program. Similar
information collected in L Classification Supplement Items 4.a and 4.b
is not preserved in USCIS's administrative data. Consequently, DHS
estimates the number of L-1 petitions with 50 or more employees and
more than 50 percent of employees in H-1B/L-1 status that are currently
subject to the fee by dividing the L-1 collections deposited in the CBP
and Treasury accounts by the $4,500 fee amount, as shown in Table 3.
Due to the lack of data regarding L Classification Supplement Items 4.a
and 4.b, DHS estimated the projected submissions that will be subject
to the fee as a result of this proposed rule by calculating the ratio
of H-1B submissions newly subject to the fee to the H-1B submissions
currently subject to the fee for FY 2018-2022. This multiplier (1.8929)
was then applied to the number of projected L-1 submissions subject to
the fee to find the projected L-1 submissions newly subject to the fee
as a result of this rule and is shown in Table 3. This methodology
assumes that the ratio of new fee payers to baseline fee payers is the
same for L-1 and H-1B. To the extent it differs, the transfers will be
higher or lower than projected. We request comment on this assumption.
Table 3--Annual L-1 Submissions Subject to Fee
[Current and new]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calculated & Projected
projected Projected Actual & transfer Total actual &
Fiscal year submissions submissions Total Fee amount projected payments projected
currently newly subject submissions transfer resulting from transfer
subject to fee to fee payments rule payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018.................................... 5,586 0 5,586 $4,500 $25,137,000 $0 $25,137,000
2019.................................... 5,411 0 5,411 4,500 24,349,046 0 24,349,046
2020.................................... 2,935 0 2,935 4,500 13,207,954 0 13,207,954
2021.................................... 1,082 0 1,082 4,500 4,869,499 0 4,869,499
2022.................................... 1,314 0 1,314 4,500 5,912,000 0 5,912,000
2023.................................... 3,266 6,183 9,449 4,500 14,697,000 27,823,500 42,520,500
2024.................................... 3,266 6,183 9,449 4,500 14,697,000 27,823,500 42,520,500
2025.................................... 3,266 6,183 9,449 4,500 14,697,000 27,823,500 42,520,500
2026.................................... 3,266 6,183 9,449 4,500 14,697,000 27,823,500 42,520,500
2027.................................... 3,266 6,183 9,449 4,500 14,697,000 27,823,500 42,520,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
<bullet> L-1 submissions were calculated by dividing the actual transfer payments by the fee amount for FY 2018-2022.
<bullet> The 9-11 Biometric Fee is only applicable to petitions which also include an extension of stay request and do not reflect the total number of
petitions received.
<bullet> Projected submissions currently subject to fee for 2023-2027 are based on the average of submissions for 2018-2022.
<bullet> Projected L-1 submissions newly subject to fee are calculated using the ratio of H-1B submissions newly subject to fee to H-1B submissions
currently subject to fee from 2018-2022 (a multiplier of 1.8929).
In undiscounted 2022 dollars, DHS believes this rule will result in
a combined total increase of $157.3 million annually to H-1B and L-1
transfer payments. Table 4 provides estimates of the undiscounted
transfer payments and Table 5 provides estimates of the discounted
transfer payments of this rule for fiscal years 2023 to 2027. From FYs
2023 to 2027, H-1B and L-1 petitioners will experience a total in
transfer payments
[[Page 48346]]
of $720.3 million if discounted at three percent and $644.9 million if
discounted at seven percent. Petitioners will experience total
annualized transfer payments of $157.3 million under both three and
seven percent discount rates.
Table 4--Undiscounted Projected Transfer Payments From the Proposed Rule
----------------------------------------------------------------------------------------------------------------
H-1B Projected L-1 Projected Total projected
Year undiscounted undiscounted undiscounted
transfer payments transfer payments transfer payments
----------------------------------------------------------------------------------------------------------------
2023.......................................... $129,468,000 $27,823,500 $157,291,500
2024.......................................... 129,468,000 27,823,500 157,291,500
2025.......................................... 129,468,000 27,823,500 157,291,500
2026.......................................... 129,468,000 27,823,500 157,291,500
2027.......................................... 129,468,000 27,823,500 157,291,500
-----------------------------------------------------------------
Total..................................... 647,340,000 139,117,500 786,457,500
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Table 5--Total Monetized Present Value and Annualized Additional
Transfer Payments From the Proposed Rule
------------------------------------------------------------------------
Fiscal year 3% Discount rate 7% Discount rate
------------------------------------------------------------------------
2023........................ $152,710,194 $147,001,402
2024........................ 148,262,324 137,384,488
2025........................ 143,944,004 128,396,718
2026........................ 139,751,460 119,996,932
2027........................ 135,681,030 112,146,666
-------------------------------------------
Total................... 720,349,013 644,926,205
Net Present Value....... 720,349,013 644,926,205
Annualized Transfer 157,291,500 157,291,500
Payments...............
------------------------------------------------------------------------
With this additional funding CBP will be able to meet its
congressional mandate to enhance national security by deploying a fully
integrated biometric entry-exit data system. CBP will be able to
maintain its current biometric entry and exit operations, as well as
ensure that TVS continues to be available to CBP and external
stakeholders. CBP will also be able to continue its expansion to all
ports of entry in order to fully implement a comprehensive biometric
exit system at all land, sea, and air exits.\27\
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\27\ Since 2004, DHS has worked to develop and implement a
comprehensive biometric entry and exit data system as required by
section 7208 of the IRTPA. See, e.g., Implementation of the United
States Visitor and Immigrant Status Indicator Technology Program
(``US-VISIT''); Biometric Requirements, 69 FR 468 (Jan. 5, 2004).
Additional resources discussing DHS's plans to enhance biometric
operations are DHS's annual Entry/Exit Overstay Reports, available
at <a href="https://www.dhs.gov/publication/entryexit-overstay-report">https://www.dhs.gov/publication/entryexit-overstay-report</a>.
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), requires agencies to assess the impact of regulations on
small entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people).
As discussed above, this rule will result in transfer payments to
the U.S. Government from employers with 50 or more employees and more
than 50 percent of employees in H-1B and/or L-1 nonimmigrant status
(covered employers). DHS used a random sample of 399 H-1B/L-1
petitioners provided by USCIS to positively identify 264 small entities
based on the size standards of the Small Business Administration. Only
41 of these small entities have more than 50 employees and would be
subject to the 9-11 Biometric Fee. The rule also states that the 9-11
Biometric Fee is applicable only to entities with more than 50 percent
of employees in H-1B or L-1 status. DHS does not have enough
information to determine how many employers fit this description.
Therefore, DHS is unable to determine whether this rule affects a
substantial number of small businesses. However, DHS can estimate that
an approximate maximum of 16 percent of small businesses will be
affected by this rule.\28\
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\28\ 41 out of 264 confirmed small entities sampled (41/264 =
.1553 or 15.53%).
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Petitioning employers with 50 or more employees and more than 50
percent of employees in H-1B or L-1 status will pay the 9-11 Biometric
Fee. The fee for H-1B and L-1 petitions under Public Law 114-113 is
$4,000 and $4,500, respectively. DHS does not have enough information
on the number of times a petitioning employer would pay the 9-11
Biometric Fee due to the rule change to determine whether this rule has
a significant impact on small businesses.
Although DHS was able to estimate effects of the rule and create a
rough estimate of the number of small businesses affected by the rule,
DHS was unable to determine how many employers have more than 50
percent of its employees in the United States in H-1B or L-1
nonimmigrant status, or the number of times that an individual employer
would be subject to the 9-11 Biometric Fee due to a lack of detailed
petition data available on filings. Therefore, DHS seeks public comment
on the number of small companies that would be subject to this fee and
how often small companies would pay the 9-11 Biometric Fee. DHS has
conducted the following Initial Regulatory Flexibility Analysis.
1. A Description of the Reasons Why Action by the Agency Is Being
Considered
DHS is proposing to amend regulations to implement an
[[Page 48347]]
interpretation of the statutory language in Public Law 114-113 that DHS
now believes would better align with congressional intent by expanding
the instances in which the 9-11 Biometric Fee would apply. DHS believes
this interpretation and the consequent increased collections would
better enable DHS to comply with its congressional mandate under
section 7208 of the IRTPA to implement and maintain biometric entry and
exit data.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The 9-11 Biometric Fee is authorized under Div. O, section 402(g)
of the Consolidated Appropriations Act, 2016, Public Law 114-113, 129
Stat. 2242, 3006. This statute set aside 50 percent of the funds that
come from the 9-11 Biometric Fee (up to a total of $1 billion) to be
deposited into a 9-11 Biometric Account. The funds from the 9-11
Biometric Account are available to support the congressionally mandated
biometric entry-exit data system, as described under section 7208 of
the IRTPA. Annual maintenance costs for those biometric entry and exit
data systems that CBP has already implemented currently exceed the
annual funding received through the 9-11 Biometric Fee. These funds are
insufficient to finish implementing the biometric entry operations to
additional sea and land modalities or to implement a comprehensive
biometric exit system. DHS believes this proposed rule will increase
collections and provide adequate funding to better allow CBP to meet
Congress's biometric programs mandate and would better align with
congressional intent.
3. A Description and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
The proposed rule could potentially affect small, covered employers
across a wide range of industries. CBP used a random sample of 399 H-1B
and L-1 petitioners in 2020 to estimate the number of small entities
affected by this rule. Table 6 shows the distribution of entities
across the sample provided by USCIS. From this sample, six entities
listed an invalid North American Industry Classification System (NAICS)
code and 68 did not report a NAICS code, and so CBP cannot make a
determination on the size of the entity or the impact this rule will
have on them. Of the remaining 325 entities in the sample, CBP was able
to positively identify 264 as small entities based on size standards of
the Small Business Administration. Table 6 shows the distribution of
small entities across industries.
Table 6--NAICS Codes, Descriptions, Number, and Percent of Industry in Sample Are Small
----------------------------------------------------------------------------------------------------------------
Number of small Number of Percent of
Primary NAICS code Industry description entities in entities in industry in
sample sample sample are small
----------------------------------------------------------------------------------------------------------------
511210.......................... Software Publishers....... 18 19 95
541511.......................... Custom Computer 17 17 100
Programming Services.
561439.......................... Other Business Service 14 15 93
Centers (including Copy
Shops).
541618.......................... Other Management 11 13 85
Consulting Services.
541330.......................... Engineering Services...... 9 9 100
621111.......................... Offices of Physicians 9 9 100
(except Mental Health
Specialists).
611110.......................... Elementary and Secondary 7 7 100
Schools.
541211.......................... Offices of Certified 7 7 100
Public Accountants.
621493.......................... Freestanding Ambulatory 6 6 100
Surgical and Emergency
Centers.
561110.......................... Office Administrative 5 5 100
Services.
541512.......................... Computer Systems Design 4 4 100
Services.
423610.......................... Electrical Apparatus and 4 4 100
Equipment, Wiring
Supplies, and Related
Equipment Merchant
Wholesalers.
541110.......................... Offices of Lawyers........ 4 6 67
446110.......................... Pharmacies and Drug Stores 4 4 100
523930.......................... Investment Advice......... 4 4 100
621210.......................... Offices of Dentists....... 4 4 100
611310.......................... Colleges, Universities, 3 4 75
and Professional Schools.
541714.......................... Research and Technology in 3 3 100
Biotechnology (except
Nanobiotechnology).
541611.......................... Administrative Management 3 4 75
and General Management
Consulting Services.
518210.......................... Data Processing, Hosting, 3 3 100
and Related Services.
541690.......................... Other Scientific and 3 6 50
Technical Consulting
Services.
621399.......................... Offices of All Other 3 3 100
Miscellaneous Health
Practitioners.
541720.......................... Research and Development 3 3 100
in the Social Sciences
and Humanities.
238210.......................... Electrical Contractors and 3 3 100
Other Wiring Installation
Contractors.
488390.......................... Other Support Activities 3 3 100
for Water Transportation.
541519.......................... Other Computer Related 3 3 100
Services.
921120.......................... Legislative Bodies........ 3 3 100
Other........................... Various *................. 104 154 68
---------------------------------------------------
Total....................... .......................... 264 325 81
----------------------------------------------------------------------------------------------------------------
* Two or fewer small entities in NAICS category.
Of the 264 confirmed small entities, 223 had fewer than 50
employees and would be statutorily exempt from paying the 9-11
Biometric Fee and 40 small entities had 50 or more employees. CBP did
not have an employee count for one employer and cannot determine
whether it is affected by this rule.
[[Page 48348]]
Based on the sample and the 50/50 threshold,\29\ CBP estimates that
an approximate maximum of 16 percent of small entities that hire H-1B
or L-1 employees will be affected by this rule.\30\
---------------------------------------------------------------------------
\29\ ``50/50 threshold'' refers to the threshold for employers
to be subject to the requirements of the 9-11 Biometric Fee.
Employers with 50 or more employees and more than 50 percent of
employees in H-1B or L-1 status will be subject to the Biometric Fee
for certain H-1B and L-1 submissions.
\30\ 41 out of 264 confirmed small entities sampled (41/264 =
.1553 or 15.53%).
---------------------------------------------------------------------------
4. A Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report or Record
The proposed regulation does not propose changes to any required
reporting or recordkeeping. As discussed above, this rule could affect
any small entity that employs 50 or more people with more than 50
percent of employees in H-1B or L-1 nonimmigrant status.
The proposed rule would have compliance requirements for affected
small businesses since it would amend the regulations at 8 CFR
106.2(c)(8) and (9) to specify that the 9-11 Biometric Fee will apply
to all H-1B and L-1 extension-of-stay petitions in addition to all
previously covered H-1B and L-1 petition. As a result, petitioning
small businesses with 50 or more employees and more than 50 percent of
employees in H-1B or L-1 status affected by the proposed rule would pay
the 9-11 Biometric Fee. The fee for H-1B and L-1 petitions under Public
Law 114-113 is $4,000 and $4,500, respectively.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule
This proposed rule does not duplicate, overlap, or conflict with
any Federal rules.
6. A Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
Alternative 1 (chosen alternative): Adopt an alternative statutory
interpretation to require covered employers to pay the 9-11 Biometric
Fee for I-129 Form petitions, seeking initial grants of status as well
as all extension-of-stay petitions, regardless of whether there is a
change of employer.
Alternative 2: No regulatory action.
DHS has chosen to implement Alternative 1. DHS believes that the
alternative statutory interpretation of Public Law 114-113 minimizes
the impact on small businesses, because only entities with 50 or more
employees and more than 50 percent of employees in H-1B or L-1 status
must pay the 9-11 Biometric Fee, while still allowing DHS to receive
enough funds for the required maintenance of biometric entry and exit
data systems already in place. While Alternative 2 would have a smaller
impact on small businesses, it would leave DHS unable to accomplish the
stated objectives of the applicable statutes. Therefore, DHS believes
Alternative 1 best balances funding requirements and provides the
smallest possible impact on small businesses while doing so.
Alternative 2 would mean that the status quo would continue and DHS
would lack sufficient funding for the implementation and maintenance of
a congressionally mandated biometric entry-exit system because covered
employers would not need to pay the 9-11 Biometric Fee for extensions.
This alternative would require DHS to reallocate funds marked for other
purposes in order to maintain and finish implementing current biometric
entry operations and implement biometric exit operations, as required
by section 7208 of the IRTPA.
C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d))
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public. An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by OMB. Form I-129 is covered by OMB approved
collection 1615-0009. This rule makes no changes to this information
collection, so the provisions of the PRA do not apply to this rule.
List of Subjects in 8 CFR 106
Citizenship and naturalization, Fees, Immigration.
Proposed Regulatory Amendments
For the reasons stated in the preamble, DHS proposes to amend part
106 of title 8, Code of Federal Regulations (8 CFR part 106), as
follows:
PART 106--USCIS FEE SCHEDULE
0
1. The authority citation for part 106 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356;48
U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101 note);
Pub. L. 115-218, 132 Stat. 1547; Pub. L. 116-159, 134 Stat. 709.
0
2. Amend Sec. 106.2 by revising paragraphs (c)(8) and (c)(9) to read
as follows:
Sec. 106.2 Fees.
* * * * *
(c) * * *
(8) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For
all petitioners filing an H-1B petition who employ 50 or more employees
in the United States, if more than 50 percent of the petitioner's
employees in the aggregate are in H-1B, L-1A, or L-1B nonimmigrant
status, except for petitioners filing an amended petition without an
extension of stay request: $4,000. This fee will apply to petitions
filed on or before September 30, 2027.
(9) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For
all petitioners filing an L-1 petition who employ 50 or more employees
in the United States, if more than 50 percent of the petitioner's
employees in the aggregate are in H-1B, L-1A, or L-1B nonimmigrant
status, except for petitioners filing an amended petition without an
extension of stay request: $4,500. This fee will apply to petitions
filed on or before September 30, 2027.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-12396 Filed 6-5-24; 8:45 am]
BILLING CODE 9111-14-P
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