Rule2026-16231
9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 10, 2026
Effective
September 9, 2026
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is amending the regulations concerning the 9-11 Response and Biometric Entry-Exit Fee for certain H-1B and L-1 Visas (9-11 Biometric Fee). The regulatory changes correct DHS's interpretation of statutory language to require that covered employers submit the 9-11 Biometric Fee for all extension of status petitions, regardless of whether the related fraud prevention and detection fee applies, which includes extension of status petitions that do not involve a change of employer. The 9-11 Biometric Fee continues to apply unchanged to petitions seeking an initial grant of status. The changes also help DHS comply with its congressional mandate to implement a biometric entry-exit system.
Full Text
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<title>Federal Register, Volume 91 Issue 152 (Monday, August 10, 2026)</title>
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[Federal Register Volume 91, Number 152 (Monday, August 10, 2026)]
[Rules and Regulations]
[Pages 51360-51380]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-16231]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 106
[Docket No. USCBP-2024-0009; CBP Dec. No. 26-11]
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: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending the
regulations concerning the 9-11 Response and Biometric Entry-Exit Fee
for certain H-1B and L-1 Visas (9-11 Biometric Fee). The regulatory
changes correct DHS's interpretation of statutory language to require
that covered employers submit the 9-11 Biometric Fee for all extension
of status petitions, regardless of whether the related fraud prevention
and detection fee applies, which includes extension of status petitions
that do not involve a change of employer. The 9-11 Biometric Fee
continues to apply unchanged to petitions seeking an initial grant of
status. The changes also help DHS comply with its congressional mandate
to implement a biometric entry-exit system.
DATES: This rule is effective on September 9, 2026.
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#2965687b7b700768077968676c7d7d68696a6b79076d617a076e667f"><span class="__cf_email__" data-cfemail="87cbc6d5d5dea9c6a9d7c6c9c2d3d3c6c7c4c5d7a9c3cfd4a9c0c8d1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. Notice of Proposed Rulemaking
On June 6, 2024, the Department of Homeland Security (DHS)
published a notice of proposed rulemaking (NPRM) in the Federal
Register (89 FR 48339) proposing to amend DHS regulations regarding the
9-11 Biometric Fee for certain H-1B and L-1 petitions. DHS received a
total of 146 comments on the NPRM. Comments included support,
suggestions for changes, and concerns. After review of the comments,
through this final rule, DHS is adopting the proposed changes to its
regulations to align with Congress's intent for the 9-11 Biometric Fee.
B. Statutory Authorization and History
1. Initial Supplemental H-1B and L-1 Fee
H-1B and L-1 visa classifications are temporary nonimmigrant worker
visa classifications. H-1B and L-1 classifications \1\ 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 aliens to perform services in a specialty
occupation. L-1 status allows companies to seek a temporary
intracompany transfer of certain alien
[[Page 51361]]
employees who perform in an executive or managerial capacity or have
specialized knowledge.\2\
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\1\ Visa classifications are often referred to using shorthand
such as simply ``classification'' or ``status.'' E.g. ``H-1B
classification'' or ``H-1B status.'' This shorthand is used
throughout this document.
\2\ 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 (hereinafter Pub. L. 111-230)
(8 U.S.C. 1101 note). The 2010 Supplemental Fee applied to employers
that employ 50 or more total 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.
For these covered employers, the statute stated ``the filing fee and
fraud prevention and detection fee [. . .] shall be increased by $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 Fraud Fee was established and set to $500 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); INA 214(c)(12)(A) (8 U.S.C. 1184(c)(12)(A)). 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. See INA
214(c)(12)(A) (8 U.S.C. 1184(c)(12)(A), see also INA 286(v)(2) (8
U.S.C. 1356(v)(2)). 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 status. See INA 214(c)(12)(A) (8
U.S.C. 1184(c)(12)(A)).
DHS interpreted the statutory language of Public Law 111-230 to
mean that the 2010 Supplemental Fee only applied to the filing fee and
only to petitions where the Fraud Fee also applied, namely petitions
for an initial grant of status or requesting a change of employer but
not to extension petitions filed by the same employer on behalf of the
same employee. 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. See Immigration
Benefits Business Transformation, Increment I, 76 FR 53764, 53768,
53781 (August 29, 2011). The 2010 Supplemental Fee sunset on September
30, 2015, after an extension by Congress.\3\
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\3\ 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 Biometric Fee.
See Consolidated Appropriations Act, 2016, Div. O, sec. 402(g), Public
Law 114-113, 129 Stat. 2242, 3006 (hereinafter Pub. L. 114-113) (49
U.S.C. 40101 note).\4\ Public Law 114-113 established the 9-11
Biometric Fee after the 2010 Supplemental Fee expired. The 9-11
Biometric Fee doubled the amount of the 2010 Supplemental Fee,
providing ``the combined filing fee and fraud prevention and detection
fee [ . . . ] shall be increased by $4,500 [or $4,000]''. Id.
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\4\ 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
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 regulatory headings also refer to fees for H-
1B and L-1 visas.
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The statutory language in Public Law 114-113 establishing the 9-11
Biometric Fee is similar to that of Public Law 111-230.\5\ However,
Public Law 114-113 has two important distinctions, beyond the increased
fee amounts. First, Congress added the word ``combined,'' clarifying
that the fee increase served as a single fee increase to the filing
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 \6\ 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 status petitions.
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\5\ Compare Public Law 111-230 (``the combined filing fee and
fraud prevention and detection fee required to be submitted with an
application for admission as a nonimmigrant . . . including an
application for an extension of such status, shall be increased by
$4,500 . . .'') with Public Law 114-113 (``the filing fee and fraud
prevention and detection fee required to be submitted with an
application for admission as a nonimmigrant . . . shall be increased
by 2,250 . . .'').
\6\ Section 402(g), Public Law 114-113 uses the terms
``application'' and ``applicant.'' DHS regulations in 8 CFR 106.2
use the terms ``petition'' and ``petitioner.'' As these terms have
the same meaning for the purposes of this rulemaking, in this
document we use these terms interchangeably.
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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 (namely, petitions seeking initial
grants of H-1B or L-1 status, or petitions involving a change of
employer for a beneficiary already in H-1B or L-1 status, including a
change of employer petition that requests an extension of such status).
Accordingly, DHS implemented regulations in a final rule published on
October 24, 2016, that set forth its interpretation, as explained
below. See U.S. Citizenship and Immigration Services Fee Schedule, 81
FR 73292 (Oct. 24, 2016) (hereinafter 2016 Fee Rule). See 81 FR 73292,
73331.
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. The other 50 percent of the 9-11 Biometric Fees are
deposited into the general fund of the Treasury. Id. The funds in the
9-11 Biometric Account are available to the Secretary of DHS for
implementing the congressionally mandated biometric entry-exit system
to confirm the identity of aliens entering and exiting the United
States.\7\ As the
[[Page 51362]]
DHS component responsible for controlling the border and monitoring the
arrival and departure of U.S. citizens and aliens, U.S. Customs and
Border Protection (CBP) implements biometric operations in the land,
sea, and air environments.\8\ Pursuant to congressional extension, the
9-11 Biometric Fee is currently set to expire on September 30, 2027.\9\
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\7\ Numerous federal statutes require DHS to create an
integrated, automated biometric entry and exit system that records
the arrival and departure of aliens, compares the biometric data of
aliens to verify their identity, and authenticates travel documents
presented by such aliens through the comparison of biometrics. These
include: section 110 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-828, 110 Stat.
3009-546, 3009-558; section 2(a) of the Immigration and
Naturalization Service Data Management Improvement Act of 2000
(DMIA), Public Law 106-215, 114 Stat. 337, 338; section 205 of the
Visa Waiver Permanent Program Act of 2000, Public Law 106-396, 114
Stat. 1637, 1641; section 414 of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56,
115 Stat. 272, 353; section 302 of the Enhanced Border Security and
Visa Entry Reform Act of 2002 (Border Security Act), Public Law 107-
173, 116 Stat. 543, 552; section 7208 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (IRTPA), Public Law 108-458, 118
Stat. 3638, 3817; section 711 of the Implementing Recommendations of
the 9/11 Commission Act of 2007 (Implementing Recommendations of the
9/11 Commission Act), Public Law 110-53, 121 Stat. 266, 338; and
section 802 of the Trade Facilitation and Trade Enforcement Act of
2015, Public Law 114-125, 130 Stat. 122, 199 (6 U.S.C. 211(c)(10)).
\8\ 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). See also INA 214, 215(a),
235(a), 262(a), 263(a), 264(c), 287(b) (8 U.S.C. 1184, 1185(a),
1225(a), 1302(a), 1303(a), 1304(c)), 1357(b)).
\9\ 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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C. Prior DHS Rulemaking Addressing the 9-11 Biometric Fee
In the years following the 2016 Fee Rule, DHS monitored the
collection of the 9-11 Biometric Fee and evaluated whether its
interpretation of the language in Public Law 114-113 was correct. After
careful consideration, on November 14, 2019, DHS proposed an
interpretation expanding the circumstances in which the 9-11 Biometric
Fee would apply, as well as proposing numerous other changes related to
fees collected by DHS. U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, 84 FR 62280, 62363 (Nov. 14, 2019) (hereinafter 2019 Fee
NPRM). DHS received several comments on the 2019 Fee NPRM opposing the
proposed 9-11 Biometric Fee.\10\ After considering the comments, on
August 3, 2020, DHS adopted the 9-11 Biometric Fee interpretation in a
Final Rule that, among other changes, would require the additional fee
for all H-1B or L-1 extension of status petitions filed by covered
employers. See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request Requirements,
85 FR 46788 (Aug. 3, 2020) (hereinafter 2020 Fee Rule). 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.\11\
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\10\ The comments were similar to the comments received on the
NPRM that this rule finalizes. For additional information on the
comments and DHS's responses, see the rule finalizing the 2019 Fee
NPRM at 85 FR 46788.
\11\ 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
and 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). Although the 2020 Fee Rule
was enjoined and therefore DHS never changed its collection
practices for the 9-11 Biometric Fee, the language in 8 CFR 106.2
was revised to reflect the changes adopted in the 2020 Fee Rule.
Subsequently, DHS issued a final rule in 2024 reverting the language
back to the pre-2020 Fee Rule language and noted that changes to the
9-11 Biometric Fee would be addressed in a separate rulemaking. See
U.S. Citizenship and Immigration Services Fee Schedule and Changes
to Certain Other Immigration Benefit Request Requirements, 89 FR
6194 (Jan. 31, 2024). 89 FR 6194.
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II. Purpose of 9-11 Biometric Fee and Need for Rulemaking
A. Purpose of the 9-11 Biometric Fee for Critical Biometric Program
Operations
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 to improve security, combat visa and travel document fraud, and
protect our country against terrorism. As noted above, numerous
statutes require DHS to implement a biometric entry and exit program
for all aliens entering and leaving the country. The biometric entry-
exit program 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)). DHS published a final rule on October
27, 2025, to fully implement facial recognition for biometric entry and
exit of all aliens to and from the United States. See Collection of
Biometric Data From Aliens Upon Entry to and Departure From the United
States, 90 FR 48604 (Oct. 27, 2025) (hereinafter the Biometrics Final
Rule). For more information on the need for a biometric entry-exit
system, see the Biometrics Final Rule.
In 2015, Congress established the 9-11 Biometric Account for the
purpose of funding the biometric entry-exit system mandated by
Congress. 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, which is used to fund DHS's biometric
entry-exit data system. DHS believes the interpretation of Public Law
114-113 adopted in this rulemaking is the correct interpretation of the
statute to align the regulations with legislative intent and 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 aliens 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 aliens,
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 using a biometric entry-exit
system, CBP can improve security and more effectively combat various
threats, including attempts by terrorists who use false travel
documents to enter or exit the United States. 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,
fraudulent use of legitimate travel documentation, and identify and
prevent aliens attempting to remain in the United States beyond their
authorized stay (overstays).
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.\12\ Specifically, the 9-11 Biometric Account
buttresses the development, operations, and maintenance of the Traveler
Verification
[[Page 51363]]
Service (TVS).\13\ TVS is the facial comparison matching service that
serves as the backbone of CBP's biometric entry-exit program.\14\ TVS
effectively and efficiently matches passengers to the travel documents
they present to CBP.\15\ Maintaining TVS enables CBP to continue
preserving the United States' crucial health, operational, and national
security interests.\16\
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\12\ 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).
\13\ 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>.
\14\ See id. at 4.
\15\ 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>.
\16\ 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 enhancing 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 enhancing consumer
confidence, 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 have successfully intercepted 87 impostors at U.S. airports
and 2,158 imposters on arrival in the land pedestrian environment.
Further, since June 2017 through October 28, 2025, DHS has confirmed
over 516,601 overstays through the use of facial biometric matching at
exit.\17\
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\17\ 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. 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.\18\ A lack
of adequate funding poses a dire threat to DHS's mission, CBP officers,
and public safety. Without the regulatory changes adopted here to the
collection of the 9-11 Biometric Fee, DHS cannot maintain its current
biometric entry operations or continue implementing other essential
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
adopted in this rule directly support DHS's fulfilment of its
congressional mandates.
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\18\ 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 implement the responsibilities that Congress has assigned
to the agency. This rule corrects DHS' interpretation of the language
in Public Law 114-113 to be consistent with the statutory text and
congressional intent. Pursuant to the Supreme Court's holding in Loper
Bright Enters. v. Raimondo, there is always a best reading of a
statute, namely, `` `the reading the court would have reached' if no
agency were involved.'' 603 U.S. 369 (2024). Here, the best reading of
the statute requires that the 9-11 Biometric Fee be paid for all
extension of status petitions regardless of whether the Fraud Fee is
applicable.
As discussed above, Public Law 114-113 established the 9-11
Biometric Fee by replacing the 2010 Supplemental Fee and doubling the
amount to $4,000 for H-1B petitions and $4,500 for L-1 petitions.
Congress also added new phrasing in two pertinent places: ``. . . the
combined filing fee and [Fraud Fee] required to be submitted with an
application for admission [as an H-1B or L-1 nonimmigrant], including
an application for an extension of such status, shall be increased.''
Sec. 402(g), Public Law 114-113 (emphasis added).
In 2016, DHS interpreted the 9-11 Biometric Fee to apply only when
the Fraud Fee also applied instead of to all extension of status
petitions. 81 FR 73292. The construction of the statutory language in
Public Law 114-113 that DHS adopted in 2016 was not the best one.
The best interpretation of that statute is that the 9-11 Biometric
Fee applies to all extension of status petitions even when the Fraud
Fee is not applicable. Under this 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 clear that Congress added the
reference to extension of status so that the 9-11 Biometric Fee would
be collected for all extension of status 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, not once for the filing fee and once for the Fraud Fee such
that it might apply twice to some petitions. When the Fraud Fee does
not apply (i.e. an extension of status petition filed by the same
employer for the same employee), the ``combined filing fee and [Fraud
Fee]'' provided in Public Law 114-113 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 (i.e. either $4,000 or $4,500).
This interpretation gives meaning to all of Congress's alterations to
the earlier statute.
DHS initially decided to maintain the interpretation it had applied
to the 2010 Supplemental Fees to the 9-11 Biometric Fee, 81 FR 73282.
However, after due consideration, DHS, through this rule, is
interpreting Public Law 114-113 consistent with the best reading of the
statute. 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 status for those already in such status, irrespective of
whether the extension of status request is for a change of covered
employers or for the purpose of remaining employed with the original
covered employer.
This interpretation of Public Law 114-113 aligns with Congress's
objective to require an additional fee for covered employers, who rely
on H-1B and L-1 nonimmigrants for 50 percent or more of their
workforce. Without this change, covered employers could 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.\19\ The
[[Page 51364]]
ability of these petitioners to avoid paying the 9-11 Biometric Fee
entirely in some cases is against the congressional intent in
establishing these fees. From fiscal year 2018 to fiscal year 2025, 27
percent of all H-1B petitions from covered employers (those with 50 or
more employees in the United States and 50 percent of employees in H-1B
or L-1 status) were subject to the 9-11 Biometric Fee.\20\ Had this
rule and the interpretation adopted therein been in effect for that
same time period, the percentage of these H-1B petitions that would
have been subject to the 9-11 Biometric Fee would have been 75 percent
of these H-1B petitions.\21\
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\19\ 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.
U.S. Citizenship and Immigration Services (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 changes do not alter current USCIS practice in this
regard.
\20\ Data provided by USCIS subject matter experts on Aug. 21,
2025.
\21\ Calculations based on data provided by USCIS subject matter
experts on Aug. 21, 2025. 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 would continue to
jeopardize CBP's ability to meet its congressional mandate to enhance
national security by deploying a fully integrated biometric entry-exit
data system. Without additional funding, CBP would be unable to
maintain its current biometric entry-exit operations, as well as ensure
that TVS continues to be available to CBP and external stakeholders.
CBP would 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.\22\ Such a result would be contrary to the statutory
scheme established by Congress, further strengthening CBP's
determination that the interpretation adopted by this rule is the best
statutory interpretation. See Davis v. Michigan Dept. of Treasury, 489
U.S.C. 803 (1989) (``It is a fundamental canon of statutory
construction that the words of a statute must be read in their context
with a view to their place in the overall statutory scheme.'').
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\22\ 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>, and
DHS's rule published on October 23, 2025, regarding biometric
collection from aliens upon entry and exit to and from the United
States (90 FR 48604).
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Indeed, 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.\23\ 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. Section 402(g), Public Law 114-113. However,
actual collections pre-COVID-19 (and beyond) repeatedly fell well below
CBO's estimates: $158 million in FY 2016, $125 million in FY 2017,
$119.1 million in FY 2018, $118.3 million in FY 2019, $71.9 million in
FY 2020, $56.7 million in FY 2021, $52 million in FY 2022, $26 million
in FY 2023, $35.1 million in FY 2024, and $25.6 million in FY 2025.\24\
Notwithstanding the effect of COVID-19 on collections during FYs 2020-
21,\25\ DHS believes that collections have fallen short of CBO
projections primarily because the previous statutory interpretation
fails to correctly apply the 9-11 Biometric Fee to all extension
petitions regardless of whether there is a change of employer.
Therefore, DHS is now amending the regulations to align those
regulations with the best reading of the statutory language and
congressional intent for the 9-11 Biometric Fee and the biometrics
program operations.
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\23\ 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>.
\24\ FY 2018-2021 data is based on data provided by USCIS via
email between 11/30/2021 and 12/21/2021. For additional information,
see tables 1 and 3 below.
\25\ FY 2018-2021 data is 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 effect 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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III. Discussion of Comments Submitted in Response to the NPRM Proposing
Changes to Regulations Regarding the 9-11 Response and Biometric Entry-
Exit Fee for H-1B and L-1 Visas
A. Overview
In response to the NPRM, DHS received 146 comments during the 30-
day public comment period. Commenters consisted of members of the
public, including H-1B and L-1 nonimmigrants, as well as policy
interest groups. DHS reviewed all of the public comments received in
response to the rulemaking and is addressing responsive comments in
this final rule. DHS's responses are grouped by subject area, with a
focus on the most common issues and suggestions raised by commenters.
Some commenters expressed support for the rule with some supporters
offering suggestions for improvement. The majority of commenters
expressed general opposition to the rule, most frequently mentioning
that the rule will discourage companies from hiring H-1B and L-1
nonimmigrants. Commenters stated that companies' reduced willingness to
hire H-1B and L-1 nonimmigrants is unfair to the nonimmigrant workers
and will also negatively affect the United States' ability to attract
talent from abroad and negatively affect the U.S. economy as a result.
Many commenters made reference to ``immigrants'' affected by this rule,
but the H-1B and L-1 visa classifications are nonimmigrant
classifications. See INA 101(a)(15), 8 U.S.C. 1101(a)(15). DHS has
addressed these comments with regard to H-1B and L-1 nonimmigrants
despite the inaccurate descriptions using the word ``immigrants.''
B. Discussion of Comments
1. Comments Expressing General Support
Several commenters generally supported the proposed rule, providing
various rationales or supporting data.
Comments: One commenter stated this rule will increase the quality
of the non-immigrant workers needed to aid the economy and create
entrepreneurial and employment opportunities in the United States. The
commenter stated that this rule will restrict the supply of labor to
the available labor market. This commenter compared the elevated fee to
a quota-based system for permanent residency saying this would restrict
the inflow of low-skilled and low-quality labor workforce, which the
commenter supports.
Response: DHS appreciates the support for this rule. In general, an
H-1B employer is not required to recruit a U.S. worker \26\ for a
position before the employer can hire an H-1B worker for that position,
unless it is H-1B dependent or a previous willful violator
[[Page 51365]]
of H-1B requirements and the alien beneficiary is not an exempt H-1B
worker. Further information can be found on the Department of Labor's
website at <a href="https://www.dol.gov/agencies/whd/fact-sheets/62o-h1b-recruitment">https://www.dol.gov/agencies/whd/fact-sheets/62o-h1b-recruitment</a>. In addition, U.S. Citizenship and Immigration Services
(USCIS) reviews, evaluates, and determines eligibility for the H-1B and
L-1 visa classifications based on petitions and accompanying documents
received. The commenter mentions the F-1 student population as well as
permanent residency numerical limitations, which are both outside the
scope of this rule.
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\26\ A U.S. worker means a U.S. citizen or national or an alien
who is lawfully admitted for permanent residence in the United
States, is admitted as a refugee under section 207 of the INA, is
granted asylum under section 208 of the INA, or is an immigrant
otherwise authorized (by the INA or by DHS) to be employed in the
United States. 20 CFR 355.715.
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Comments: One commenter stated that this regulation is the best
decision that DHS/CBP could make; that big companies should pay their
fair share; if an H-1B employee is talented, a company would be willing
to pay; the U.S. government needs to take care of its citizens first
that are getting replaced by cheap H-1B labor and fraud.
Response: DHS appreciates the support for this rule. Employers
seeking to hire H-1B nonimmigrants as workers in specialty occupations
need to submit a Labor Condition Application (LCA) to the Department of
Labor (DOL). By completing and submitting the LCA, and by signing the
LCA, the employer makes certain representations and agrees to several
attestations regarding its responsibilities, including the wages,
working conditions, and benefits to be provided to the H-1B
nonimmigrants. These attestations are specifically identified and
incorporated by reference in the LCA. While there is no general
requirement that H-1B employers recruit U.S. workers, the LCA contains
additional attestations for a subset of H-1B employers, namely H-1B-
dependent employers and employers found to have willfully violated the
H-1B program requirements. These additional attestations impose certain
obligations to recruit U.S. workers, to offer the job to U.S.
applicants who are equally or better qualified than the H-1B
nonimmigrant(s) sought for the job, and to avoid the displacement of
U.S. workers (either in the employer's workforce, or in the workforce
of a second employer with whom the H-1B nonimmigrant(s) is placed,
where there are indicia of employment with a second employer). These
additional attestations are specifically identified and incorporated by
reference in the LCA. See 20 CFR 655.705(c)(1). The certified LCA gets
submitted to USCIS with the H-1B petition, along with documentation
establishing the petitioner and beneficiary's eligibility. USCIS
reviews, evaluates, and determines eligibility under the H-1B and L-1
visa classifications based on petitions and accompanying documents
received.
Comments: Some commenters stated that an increase of the fee would
go a long way towards curbing fraud and would help reduce `missteps'
currently taken by agencies for petitions. Some commenters expressed
their belief that the fee increase may reduce overall visa fraud within
the visa system and may be a positive step for employers to consider
hiring U.S. citizens for the job opportunities. One commenter stated
the increased fee may reduce large company visa abuse and increase
American talent pool.
Response: DHS appreciates the support for this rule. With respect
to commenters concerns of fraud in the visa system, a U.S. employer
intending to hire an H-1B nonimmigrant temporary worker, has to
complete a Labor Condition Application (LCA) to the Department of Labor
(DOL). As indicated in the prior response, the LCA requires an employer
to attest to meeting certain obligations related to wages, working
conditions, and benefits to be provided to H-1B workers, and in certain
circumstances includes additional attestations for H-1B dependent
employers related to the recruitment, hiring, and non-displacement of
U.S. workers. The L-1 nonimmigrant visa classification enables a U.S.
employer that is part of an international organization to temporarily
transfer certain employees from one of its related foreign offices to
locations in the United States. The employee has to meet certain
employment criteria within the company and can only be transferred
based on their managerial or executive experience or specialized
knowledge. The comments were not specific on how this rule might reduce
fraud or visa abuse, so DHS cannot respond specifically to those claims
here. Additionally, fraud reduction is outside the scope of this
rulemaking. However, as DHS notes in other comment responses, DHS
agrees that certain additional positive effects may result from this
rulemaking.
Comments: One commenter agreed with the fee increase as it will
help deter unscrupulous businesses, namely information technology (IT)
outsourcing firms, from ``unfairly stockpiling'' H-1B workers. The
commenter stated that more than half of the top 30 H-1B employers are
IT outsourcing firms that have made a business out of `leasing' their
H-1B workers as contract workers to Fortune 500 American companies and
then profiting on the wage arbitrage. The commenter stated that Fortune
500 American companies financially benefit from contracting contingent
workers who displace the jobs of existing American IT professionals.
Response: DHS appreciates the support for this rule and agrees that
the rule will enhance the employment petition process. Effects such as
reducing fraud, including `leasing' H-1B employees to other companies
as well as `unfairly stockpiling H-1B workers' are outside the scope of
this rulemaking, however, DHS agrees that other positive effects may
result from this rulemaking. More information on USCIS's work to combat
fraud and abuse can be found at: <a href="https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program">https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program</a>.
2. Comments Expressing General Support With Recommendations (Specific
Recommendations Associated With These Comments Are Broken out in Below
Sections)
Comment: One commenter stated that additional fees should be
imposed on visas to enable credits for Americans and said the fee
increase is a welcome change to reduce the substitution of American
workers by the overseas immigrant population. Some commenters
recommended charging even higher fees, with one commenter specifying
that the fee should be ``$400K/$4M/$10M'' for H-1B and L-1 visa
applicants so that all such applicants would ``get the message that
they can't survive and will go back to their country.''
Response: The 9-11 Biometric Fees are set by Congress through
Public Law 114-113, as discussed in section I.B. of this final rule.
The commenters' suggestions to impose higher or additional fees are
beyond the scope of this rulemaking. The regulatory changes in this
rule correct DHS' prior interpretation of statutory language in Public
Law 114-113, to require that covered employers submit the 9-11
Biometric Fee for all extension of status petitions, regardless of
whether a Fraud Fee applies, so as to include extension of status
petitions that do not involve a change of employer. The 9-11 Biometric
Fee continues to apply unchanged to petitions seeking an initial grant
of status. The changes also help DHS comply with its congressional
mandate to implement a biometric entry-exit data system.
Comments: Some commenters stated that the extension fees should be
increased to the limit. The commenters also suggested that mandatory
site visits four times a year should be
[[Page 51366]]
implemented with a $5,000 up front fee. One commenter stated that other
countries/locations such as Canada, the UK, Australia, New Zealand and
Europe are ``shut down'' for ``temp and asylum visas for fake people''
and asked why the United States is not doing anything to ``protect its
own citizens.'' One commenter stated the proposed increase is low and
insulting for skilled workers and should be increased to 10% of the
base salary. Some commenters suggested a moderate fee increase to
attract and retain qualified aliens. Additionally, one commenter stated
that only U.S. citizens should be permitted to comment on rulemaking
such as this one.
Response: DHS appreciates the support for this rule. The 9-11
Biometric fees are set by statute and therefore DHS cannot raise the
fees higher than the statutorily set fees. (See Public Law 114-113.)
Site visits are outside the scope of this rulemaking. However, USCIS
does perform some site visits, and more information can be found at
<a href="https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program">https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program</a>. The NPRM is a
federal rulemaking governed by the Administrative Procedure Act (APA)
(5 U.S.C. 551-559). As such, commenting on the NPRM is open to the
public and not limited by residency. Comments on NPRMs are open to the
public and anyone can submit a comment.
Comment: Several commenters stated this rule should be passed with
some changes. These commenters suggested charging $6,000 for each new
H-1B extension as well as $4,000 biometric fees for every H-1B
extension. Likewise, the commenters suggested $8,000 for each new L-1
visa extension and $4,000 biometric fees for every L-1 extension. One
commenter said that with increased fees the ``cheap labor problem will
be rectified.'' Several commenters suggested that a minimum salary for
H-1B and L-1 visas be set at $150,000. One commenter said that there is
no threat of jobs being outsourced since what can be outsourced is
already being outsourced. This commenter also said there should not be
the 50 person minimum employees per company before this rule applies.
Response: DHS appreciates the support for this rule. The fees and
the other criteria for charging these fees in this rule were set by
Congress in Public Law 114-113. The fee amounts and company size are
clearly stated in the statute. Minimum salary requirements for H-1B and
L-1 visas, as well as comments about outsourcing, are beyond the scope
of this rulemaking.
3. Comments Expressing Opposition by Category
a. Comments Expressing Opposition Due to Effect on Employers
Comments: Some commenters stated that this proposal exacerbates the
financial strain on employers and employees. The commenters stated that
the potential negative effects include employer reluctance to hire H-1B
and L-1 individuals. Some commenters stated this rule will further
burden taxpaying companies. Some commenters stated that the proposed
fee will affect employers sponsoring H-1B and L-1 petitions; the
extension filing is tedious for lawyers and paying more will not make
the United States more competitive.
Response: DHS understands that this rule will affect certain
employers in certain situations. Specifically, this rule will require
covered employers to submit the 9-11 Biometric Fee for all extension of
status petitions, regardless of whether the related Fraud Fee applies,
which includes extension of status petitions that do not involve a
change of employer. However, as discussed in section III.A. of the NPRM
and section I.B. of this rule, Congress established the 9-11 Biometric
Fee to fund the biometrics entry and exit programs Congress mandated in
the IRTPA. Sec. 402(g), Public Law 114-113. The interpretation of
Public Law 114-113 established in this rulemaking aligns the
regulations with the statutory text, legislative intent, and enables
DHS to meet its congressional mandate for a biometrics entry and exit
program.
Comments: One commenter stated that the broadened scope of the fee
application adds layers of complexity and uncertainty for employers as
well as additional compliance costs due to administrative and legal
costs to ensure proper submission for all fees.
Response: DHS understands that employers may need to reconfirm
whether payment of the 9-11 Biometric Fee is necessary for their
petition. However, DHS believes this will take a negligible amount of
time as fee requirements are readily available on the USCIS website at
<a href="https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker">https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker</a> or <a href="https://www.uscis.gov/g-1055">https://www.uscis.gov/g-1055</a>.
Furthermore, DHS notes that this rule is necessary in order for DHS to
comply with its congressionally mandated biometric entry and exit
program.
Comment: One commenter stated that the rule is self-defeating and
burdensome for American entrepreneurs. The fee increase would require
an additional average of $20,000 per employee for an applicant who is
already a beneficiary of an immigrant petition due to the 5-15 years
priority date wait. The commenter stated that a business cannot easily
replace that employee even if a more talented candidate is found: the
employee has many years of experience and works efficiently in a team
that a new candidate will not have. According to the commenter, the
increase would deter many billion/trillion-dollar corporations from
hiring H-1B employees which will then decrease the revenue generated by
USCIS and CBP. Consequently, H-1B and L-1 programs would slowly shrink,
as would the agencies processing the petitions, resulting in a
reduction in workforce in CBP, DHS, and USCIS.
Response: DHS disagrees with the commenter's assertion that the
rule will deter many billion/trillion-dollar corporations from hiring
H-1B employees. The 9-11 Biometric Fee is only charged to covered
employers, which by statute are those employers that employ 50 or more
total 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. A
petitioner is not required to pay the 9-11 Biometric Fee if they are
not a covered employer. Those companies that are covered employers, as
the petitioners, will determine for whom they will file a petition for
nonimmigrant classification based on internal company policies and
priorities. DHS does not agree that this rule will deter companies from
hiring H-1B employees as the demand for H-1B visas has exceeded the
annual availability of such visas for more than a decade.\27\ H-1B is a
nonimmigrant classification that applies to aliens who seek to perform
services in a specialty occupation and is subject to an annual
numerical limit (cap). See INA 101(a)(H)(i)(b) (8 U.S.C.
1101(a)(H)(i)(b)) and 214(g)(1)(A) (8 U.S.C. 1184(g)(1)(A)).
Information regarding the H-1B petition process and cap is available
<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>. DHS also does not agree that this rule will have reduce
revenues generated by USCIS and CBP, nor create a reduction in the
workforce within DHS.
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\27\ See Table 1, Fiscal Year 2025: H-1B Petitions, Annual
Report to Congress, <a href="https://www.uscis.gov/sites/default/files/document/legal-docs/fy25_h1b_petitions_021126_v1.0.pdf">https://www.uscis.gov/sites/default/files/document/legal-docs/fy25_h1b_petitions_021126_v1.0.pdf</a>, showing that
on average USCIS receives approximately 400,000 H-1B petitions
annually.
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The 9-11 Biometric Fee provides funding for the biometric entry-
exit
[[Page 51367]]
program. The 9-11 Biometric Fee was instituted by Congress to
financially support and improve the biometric entry-exit data systems
to increase and enhance national security. Enhanced national security
is a vital part of promoting legal immigration. The biometric entry-
exit program verifies the identity of individuals applying for
admission to the United States.
Priority dates for immigrant petitions are outside the scope of
this rulemaking. CBP notes that this rule does not change either the
number of people waiting or the time they would wait for an immigrant
visa, including extension requests for nonimmigrant visas, are expected
to remain the same. The costs for extension of status requests are
discussed fully in section IV of this rulemaking.\28\ For reference,
priority dates are updated by USCIS on its public facing website
<a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin">https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin</a>.
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\28\ For additional information, please see tables 2 and 3
below.
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Comments: Some commenters stated that an increased filing fee is
not good for H-1B workers and will hurt businesses (especially small
and medium sized) and jobs in the United States. One commenter stated
that the rule will have an adverse effect on the beneficiary because
small businesses would not be financially strong enough to sponsor high
fees; employers might look for alternate employees who are citizens or
Green Card holders. One commenter stated this rule is targeting
immigrants who are just as skilled as any American, and said jobs
should go to the most talented qualified people.
Some commenters stated that the increase is burdensome, the fee is
disproportionately applied on employers and beneficiaries already
contributing substantially to the U.S. economy, will negatively affect
how immigrants stay in the country and get jobs and will further harm
many students that are supported. The commenters stated that companies
will have no other option than to outsource to other countries. One
commenter stated the fee adversely affects small and midsize companies
seeking to hire skilled H-1B holders and recommended amending the rule
to encompass large cap companies and exclude start up and midsize
companies.
Response: DHS understands the concern for businesses and
nonimmigrant workers. As noted in section V.B. of the NPRM and section
V.B of this final rule, this rule may affect only a maximum of 16
percent of small entities in the United States that file H-1B or L-1
petitions will be affected by this rule. DHS also disagrees with the
commenters' assertions that the final rule will have broadly applicable
adverse effects on U.S. employers or their employees. The 9-11
Biometric Fee is only charged to covered employers, which by statute
are those employers that employ 50 or more total 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. A petitioner is not required
to pay the 9-11 Biometric Fee if they are not a covered employer.
Therefore, DHS believes the effects on nonimmigrants who work for or
wish to work for small businesses are minimal. While DHS recognizes
that covered employers will be affected by the final rule because they
might be required to pay the 9-11 Biometric Fee more often than under
the prior rules, such impacts are consistent with the best
interpretation of the statute and congressional intent. Further, DHS
does not believe U.S. companies will outsource their business based on
this rule.
Further, regarding some comments suggesting that jobs should go to
the most qualified applicant regardless of citizenship, as noted above,
H-1B dependent employers have certain obligations to recruit U.S.
workers, to offer the job to U.S. applicants who are equally or better
qualified than the H-1B nonimmigrant(s) sought for the job, and to
avoid the displacement of U.S. workers (either in the employer's
workforce, or in the workforce of a second employer with whom the H-1B
nonimmigrant(s) is placed, where there are indicia of employment with a
second employer).
The L-1 nonimmigrant classification enables a U.S. employer to
transfer a professional employee from one of its affiliated foreign
offices to one of its offices in the United States for a maximum
initial stay of three years. The L-1 classification also enables a
foreign company that does not yet have an affiliated U.S. office to
send a specialized knowledge employee or executive/manager to the
United States to help establish a U.S. office. Qualified employees
entering the United States to establish a new office will be allowed a
maximum initial stay of one year.
b. Comments Expressing Opposition Due to Effect on Visa Holders
Comments: One commenter stated that this proposal exacerbates
financial strain on employees through employee displacement when
employers opt not to bear the additional cost to hire them. Some
commenters stated that this fee increase is unfair to H-1B visa
holders, and the fee is too high. One commenter stated that the fee is
too high which may compel employers to lay off or hesitate hiring visa-
holding employees and if USCIS is going to increase this fee then
longer visa terms and significant improvements to streamline the
process must be considered. One commenter stated that if USCIS is
charging these fees then, they may have to approve the visa for a long
term such as three years or more and approval timelines will have to
drastically improve.
Response: DHS does not agree with these comments. This rule does
include an additional category of petitions subject to the 9-11
Biometric Fee (namely, extensions filed by the H-1B worker's current
employer), however, DHS does not agree that the overall fee is too high
as it is the fee amount mandated by statute. (See Pub. L. 114-113.)
Additionally, while some employers will have to pay additional fees,
DHS does not agree that the additional cost to certain employers can
outweigh the congressional mandate to fund a biometric entry and exit
program. Regarding the suggestion that USCIS should approve visa
petitions for a long term such as three years or more, DHS notes that
creating longer petition validity periods or otherwise streamlining the
visa petition process is outside the scope of this rulemaking.
Comments: Some commenters stated the fee is to fund the biometric
entry-exit program until 2027 and questioned why this visa category
must pay for the biometrics program.
Response: Congress determined the nonimmigrant visa classifications
that are mandated to pay the 9-11 Biometric Fee, therefore DHS does not
have authority to alter the nonimmigrant classifications subject to the
fees. The 9-11 Biometric Fee was instituted by Congress to financially
support and improve the biometric entry-exit data systems to increase
and enhance national security.\29\ Enhanced national security is a
vital part of promoting legal immigration. Biometrically verifying that
a person who presents a travel document is the true bearer of that
document helps prevent visa and immigration fraud and the fraudulent
use of legitimate travel documentation.
---------------------------------------------------------------------------
\29\ There are other sources of funding for biometrics programs.
The 9-11 Biometric Fee at issue here is only one source of such
funding. Any other sources of funding for biometrics programs are
outside the scope of this rulemaking, which concerns only the 9-11
Biometric Fee.
---------------------------------------------------------------------------
[[Page 51368]]
Comments: Some commenters stated that companies are already laying
off workers and not hiring H-1B visa holders, and this rule will add
more burden to companies making companies even more likely to lay off
visa holders and less likely to hire H-1B visa holders. Some commenters
stated that this would force people on visas to move out of the United
States and cause fewer people to apply for visas. Some commenters
suggested DHS fix other immigration processes and then try to increase
fees. Some commenters stated this law gives employers more power and
freedom to discriminate against immigrants. Some commenters stated that
H-1B work visa holders are the lifeline to the U.S. economy and
increasing the fee is unnecessary and does not help to solve America's
pressing issues.
Response: DHS disagrees with the commenters' assertions that
companies will be less likely to hire H-1B nonimmigrants or to lay off
H-1B nonimmigrants as a result of this final rule. The 9-11 Biometric
Fee is only charged to covered employers, which by statute are those
employers that employ 50 or more total 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. A petitioner is not required to pay the 9-
11 Biometric Fee if they are not a covered employer. While DHS
recognizes that covered employers will be affected by the final rule
because they might be required to pay the 9-11 Biometric Fee more often
than under the prior rules, such impacts are consistent with the best
interpretation of the statute and congressional intent.
Additionally, the cost added to the H-1B petition is small in
comparison to the wages, relocation costs, and other required fees
associated with H-1B petitions. The demand for new H-1B visas exceeds
the number available each year. This indicates that there remains a
shortage of H-1B workers, so the total number of aliens hired with H-1B
status annually is likely to remain unchanged by this rule due to the
excess demand.
DHS also does not agree that this rule will give employers freedom
to discriminate against immigrants since H-1B dependent employers must
look for a U.S. worker before hiring an H-1B visa holder anyway. The H-
1B visa is a nonimmigrant classification and applies to people who wish
to perform services in a specialty occupation. It has an annual
numerical limit (cap) and generally cannot go beyond six (6) years.
USCIS reviews, evaluates, and determines eligibility under the H-1B
nonimmigrant classification based on petitions and supporting documents
received. One of the requirements for the employer petitioning for a
foreign worker is a certified Labor Condition Application (LCA) that
has to be approved by the Department of Labor (DOL). More information
can be found under <a href="https://flag.dol.gov/programs/LCA">https://flag.dol.gov/programs/LCA</a>.
Comment: One commenter stated that this law is hurting taxpayers
who have lived in the states for over a decade. One commenter stated
this rule is against the free spirit of America, and ``corner[s]
immigrants and limit[s] their rights.''
Response: DHS is not sure which taxpayers the commenter was
referencing that would be hurt by this rule, though DHS assumes the
commenter meant H-1B and L-1 taxpaying individuals. DHS does not
believe this rule hurts any taxpaying individuals. Some taxpaying
companies will be affected by the fees pursuant to this rule, but these
fees were implemented by Congress to fund the biometric entry-exit
program and therefore DHS believes the benefits of the rule far
outweigh the costs. DHS is also unsure what the commenter meant in
stating that the rule is ``against the free spirit of America'' or that
the rule ``corners immigrants and limits their rights.'' This rule, as
noted throughout this document, addresses fees paid by certain
companies that hire H-1B and L-1 nonimmigrants. This rule does not
limit the rights of those nonimmigrants.
Comments: Some commenters stated that these fees could be forced
onto the employees themselves instead of employers paying these fees
because employers may offset the increased cost by reducing
compensation packages.
Response: Regarding commenters' claims that employers may offset
the costs of this rulemaking by reducing compensation packages,
individual compensation packages are outside the scope of this
rulemaking. However, H-1B employers are required to pay each H-1B
worker the greater of the prevailing wage for the occupational
classification in the area of intended employment or the actual wage
paid by the employer to other employees with similar experience and
qualifications for the specific position. In addition, H-1B employers
are generally prohibited from reducing an H-1B worker's wages or
compensation package to recoup business expenses, such as any required
petition-related filing fees.
Comment: One commenter stated that this is a great way to ``kill
legal immigration'' and run out of social security benefits faster.
Response: DHS disagrees that this rule will have a negative effect
on legal immigration and social security benefits. The biometric fees
for H-1B and L-1 nonimmigrant classifications are part of the 9-11
Response and Biometric Entry-Exit Fee which was established by Public
Law 114-113 after the 2010 Supplemental Fee expired. This fee allows
the continued success of the congressionally mandated biometric program
and ensures national security. Enhanced national security is a vital
part of promoting legal immigration. These biometric fees are paid when
filing certain H-1B and L-1 petitions and do not impact any social
security payroll taxes employers are required to withhold.
Comments comparing presidential administrations are outside the
scope of this rulemaking.
Comments: Some commenters stated that it is unfair to students who
get better job opportunities in the United States compared to other
countries; companies will be biased against F-1 students and may refuse
to hire them which will create a hostile environment in a strained
economy. Some commenters noted it would restrict movement of H-1B
holders and keep them from moving to a better job.
Response: As discussed in other comment responses, DHS disagrees
with the commenters' assertions that the final rule will have broadly
applicable adverse effects on U.S. employers, H-1B nonimmigrants, or F-
1 nonimmigrants. Compensation packages are outside the scope of this
rulemaking. However, DHS notes again that H-1B employers are required
to pay each H-1B worker the greater of the prevailing wage for the
occupational classification in the area of intended employment or the
actual wage paid by the employer to other employees with similar
experience and qualifications for the specific position. The H-1B
nonimmigrant classification applies to people who wish to perform
services in a specialty occupation and has an annual numerical limit
(cap). USCIS reviews, evaluates, and determines eligibility under the
H-1B nonimmigrant classification based on petitions and supporting
documents received. The F-1 nonimmigrant visa classification applies to
foreign citizens wanting to study full-time in the United States; the
F-1 visa category requires certain criteria to be met in order to be
eligible. Further information of the F-1 nonimmigrant classification
can be found at <a href="https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment">https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment</a>. DHS does not
think that this rule will affect F-1 status and the employability of
persons with F-1 status.
[[Page 51369]]
Comment: One commenter said that the ``extension fees'' already
``exceed $10,000'' and that adding another $4,000 exacerbates the
financial strain on legal immigrants, many of whom have been waiting
for decades in the Green Card queue. This hinders immigrants' ability
to contribute to society. The commenter added that [the U.S.
government] should address broader issues within the immigration system
and that comprehensive reform is needed to streamline processes, reduce
wait times, and create a fairer system.
Response: DHS does not agree with the mentioned extension fees
exceeding $10,000 per petitioner. An updated fee schedule can be found
under the USCIS public-facing website at <a href="https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker">https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker</a>. Other issues with the immigration system,
including wait times and streamlining the visa process, are outside the
scope of this rulemaking.
Comments: One commenter stated that the U.S. government should not
``loot'' the hardworking people of third world countries, who ``have
big dreams and less income [and] look for opportunities in the United
States.'' Another stated that a fee increase will make life harder for
H visa workers to find new opportunities with H visas. Another
commenter stated that there are already other avenues where everyone is
already paying the 9/11 security fee.
Response: DHS does not agree that a fee increase would make life
harder for H-1B nonimmigrants or cause those nonimmigrants to be unable
to find new opportunities. The H-1B program allows employers in the
United States to temporarily employ foreign workers in occupations that
require the theoretical and practical application of a body of highly
specialized knowledge and a bachelor's degree or higher in the specific
specialty or its equivalent. Additionally, certain prospective H-1B-
dependent petitioners must first attempt to recruit a U.S. worker for a
position before seeking to hire an H-1B worker for that role. The H-1B
classification is a nonimmigrant classification and a backlog for Green
Cards is out of scope for this rule.
Regarding commenter's claim that ``there are already other avenues
where everyone is already paying the 9-11 security fee,'' DHS does not
know what other avenues commenter may be referring to. The 9-11
Biometric Fee is paid by covered employers for extension of status
petitions, as required by statute and discussed throughout this final
rule.
Further, H-1B employers are required to pay each H-1B worker the
greater of the prevailing wage for the occupational classification in
the area of intended employment or the actual wage paid by the employer
to other employees with similar experience and qualifications for the
specific position. In addition, H-1B employers are generally prohibited
from reducing an H-1B worker's wages or compensation package to recoup
business expenses, such as any required petition-related filing fees.
Comment: Some commenters stated that the fee should only be charged
for the initial petition and not for an extension as the applicant is
the same person. A fee increase should not be charged until the Green
Card backlog relief is provided to H-1B workers.
Response: The 9-11 Biometric Fee was established by Public Law 114-
113 after the 2010 Supplemental Fee expired and charging the fee for
extensions is provided for in that statute. The 9-11 Biometric Fee was
already being charged for extension of status petitions with a new
employer. This rule interprets the statute to include extensions
without change of employer. This fee allows the continued success of
the congressionally mandated biometric program and ensures national
security. Enhanced national security is a vital part of promoting legal
immigration.
The fee is unrelated to green cards and the back log is outside the
scope of this rulemaking.
Comments: Some commenters stated that the fees in this rule would
be unfair to the H-1B visa holders. Some commenters stated simply that
this rule is ``not good'', is unfair and also a bit inaccurate. One
commenter questioned why only H-1B and L-1 employers pay the fees to
maintain the biometric system, stated fees have steadily increased over
the years which increases the cost to do business and recommended this
fee be applied to employers hiring permanent residents.
Response: The biometric fees for H-1B and L-1 nonimmigrant
classifications are part of the 9-11 Response and Biometric Entry-Exit
Fee which was established by Public Law 114-113 after the 2010
Supplemental Fee expired. This fee allows the continued success of the
congressionally mandated biometric program and enhances national
security. Congress determined which petitioners are mandated to pay the
9-11 Biometric Fee. DHS does not have authority to alter the
nonimmigrant classifications subject to the fees.
Comment: One commenter stated that a fee increase for all H-1 and
L-1 petitions discriminates against certain H-1B applicants with long
pending Green Card applications due to the country cap and that the 9-
11 Biometric Fee is a way to extract money from a disadvantaged group
of people.
Response: The biometric fees for H-1B and L-1 nonimmigrant
classifications are part of the 9-11 Response and Biometric Entry-Exit
Fee which was established by Public Law 114-113 after the 2010
Supplemental Fee expired. This fee allows the continued success of the
congressionally mandated biometric program and enhances national
security. Congress determined which petitioners are mandated to pay the
9-11 Biometric Fee, therefore DHS does not have authority to alter the
nonimmigrant classifications subject to the fees. Pending Green Card
applications are outside the scope of this rulemaking.
c. Comments Expressing Opposition Due to Effect on Specific Communities
of Nonimmigrants
Comments: Several commenters stated that although they understand
the need to fund the biometric program, targeting H-1B and L-1 visa
categories for the fee requires reconsideration. Some commenters stated
that this rule disproportionately affects people from India, with one
stating they form ``the majority of H-1B and L-1 visa holders due to
the protracted green card backlog.'' This commenter continued that the
rule ``places an undue financial burden on a specific demographic,
which is unfair and counterproductive.'' Some commenters noted that the
Green Card backlog for Indians will require renewal [of the H-1B visas]
at least every three years. The commenters said the fee increase can be
a reason that H-1B/L-1 status employees lose their jobs and end up with
a narrow opportunity of finding another job with a 60-day grace period
and it will make it difficult for them to focus on work. The backlog on
employment-based Green Cards for Indians and Chinese will force them to
relocate back to their home countries while waiting as employers will
not choose to extend their status. One commenter stated it is becoming
mathematically impossible for Indians to immigrate to the United
States.
One commenter recommended going to Congress for fee increases to
fund CBP and stated that the rule is unfair and discriminatory against
Indian-born applicants. One commenter suggested collecting additional
fees from people after ten or more years in the Green Card/Employment
Authorization Document backlog. Another commenter also stated that many
H-1B visa holders, especially from China and India, face prolonged
waiting periods for I-485 (Green Card) filing and, therefore, have
[[Page 51370]]
to renew their H-1B status numerous times. H-1B applicants from other
countries only have to renew two or three times. The commenter
suggested that the fee be avoided or lowered if an applicant has been
on H-1B visa for more than six years after I-140 approval in order to
avoid disproportionate burden on H-1B applicants. Allocating a portion
of the funds to address the entry-exit system is commendable but
ensuring relief for deserving candidates should also be a priority.
Response: The H-1B and L-1 classifications are nonimmigrant
classifications and have a maximum period of admission per visa
category. Congress determined which petitioners are mandated to pay the
biometric fees.
The H-1B classification allows an employer in the United States to
temporarily employ foreign workers in occupations that require the
theoretical and practical application of a body of highly specialized
knowledge. The L-1 nonimmigrant classification enables a U.S. employer
to either transfer a professional employee from one of its affiliated
foreign offices to one of its offices in the United States, or enables
a foreign company that does not yet have an affiliated U.S. office to
send a specialized knowledge employee or executive/manager to the
United States to help establish one.
Some commenters stated that this especially affects ``Indian and
Chinese'' visa holders. The Immigration and Nationality Act (INA)
limits the number of visas for quota-restricted immigrants. The limit
is divided among three preference categories: family-sponsored,
employment-based, and diversity immigrants. These limits have caused
backlogs, especially for countries with a large number of people
wishing to immigrate to the United States. While this limitation may
more directly impact citizens from certain countries, this rule does
not target any specific citizens. Furthermore, Green Card (including I-
140) applications and any associated backlogs are outside the scope of
this rulemaking.
Comments: One commenter stated that increasing the H-1B renewal fee
can have wide-ranging economic, social, and political implications,
affecting employers, visa holders, qualified talent pool of
individuals, and broader industry sectors. Another commenter stated
that it will affect hundreds of skilled engineers and doctors that
would add billions of dollars in revenue in the United States and that
they are the ones paying higher taxes.
Response: DHS does not agree with these comments. The H-1B visa is
a nonimmigrant classification and allows employers in the United States
to temporarily employ foreign workers in occupations that require the
theoretical and practical application of a body of highly specialized
knowledge and a bachelor's degree or higher in the specific specialty
or its equivalent. DHS does not foresee a decrease in petitions in the
H-1B and L-1 nonimmigrant classifications due to this rule.
The federal government may penalize employers who discriminate
against employees. USCIS makes clear on its website: ``federal law
prohibits employers from discriminating against people based on several
factors, including their citizenship or immigration status, or their
national origin. . . Employers with 15 or more workers also are
prohibited from discriminating against applicants or employees in any
term, condition, or privilege of employment on the bases of race,
color, national origin, religion, sex (including pregnancy), age,
disability, or genetic information.'' (<a href="https://www.uscis.gov/i-9-central/employee-rights-and-resources/preventing-discrimination">https://www.uscis.gov/i-9-central/employee-rights-and-resources/preventing-discrimination</a>).
Federal policy requires all individuals to be treated in a non-
discriminatory manner.
d. Comments Expressing Opposition Due to the Effect on Attraction of
Skilled Labor to the United States
Comments: Several commenters stated that the additional fees in
this rule will deter the highly skilled visa holders, which will
negatively affect the economy by reducing availability of skilled
labor. One commenter stated that the increased cost of transitioning
from F-1 to H-1B status may discourage international students from
studying in the United States, affecting university revenues and
diversity, and especially affecting graduate programs in STEM fields.
The commenters claim that increased costs for employers will result in
costs being shifted to consumers which leads to visa holders not
investing in housing markets and international students going to other
countries instead of the United States. Some commenters stated the fees
would deter skilled immigrants from seeking employment in the United
States and adversely affect industries that rely heavily on skilled
workers, such as technology and engineering. Some commenters raised
concerns that this fee increase could disrupt the F-1 to H-1B visa
transition involving international students at U.S. institutions who
aspire to join the U.S. workforce post-graduation. One commenter said
the fee increase could deter employers from sponsoring H-1B visas
leading to a decline in international student enrollment and reduction
in the available skilled workforce needed to maintain U.S.
competitiveness in the global market. Some commenters said that this
policy appears to be at odds with the broader goals of attracting and
retaining top talent from around the world to the United States. The
commenters noted that H-1B visa holders contribute as active consumers,
taxpayers and community members in the U.S. economy. The additional fee
could create a disparity when compared to other immigration pathways
that do not face similar financial barriers.
Response: DHS does not agree that this rule will deter skilled
employees from seeking employment in the United States and disrupt the
F-1 to H-1B visa transition involving international students. DHS also
does not agree that this rule will negatively affect the economy. The
visa classifications of F-1, H-1B and L-1 are all nonimmigrant
classifications. The H-1B and L-1 classifications require an employer
petition whereas the F-1 category is for foreign students pursuing
academic studies and/or language training programs. U.S. Immigration
and Customs Enforcement (ICE) released its Student and Exchange Visitor
Program (SEVP) annual report for calendar year 2024: over 1.5 million
international students attended schools in the United States, a 5.3%
increase from the year prior.\30\ F-1 visas are outside the scope of
this rulemaking. For more information on immigrant categories and
eligibility, please see <a href="https://www.uscis.gov/green-card/green-card-eligibility-categories">https://www.uscis.gov/green-card/green-card-eligibility-categories</a>. Additionally, regarding commenters' concerns
that the 9-11 Biometric Fee may create disparity compared to other
immigration pathways, as noted throughout this final rule, the 9-11
Biometric Fee and the covered employers subject to the fee are set by
statute.
---------------------------------------------------------------------------
\30\ See, 2024 SEVIS by the Numbers Report, available at <a href="https://www.ice.gov/doclib/sevis/btn/25_0605_2024-sevis-btn.pdf">https://www.ice.gov/doclib/sevis/btn/25_0605_2024-sevis-btn.pdf</a>. (Last
visited October 8, 2025.)
---------------------------------------------------------------------------
Comments: Some commenters stated that this group [of visa
classifications] already faced increased fees earlier in 2024 and
additional costs discourage talented people from choosing the United
States for their careers, undermining innovation and economic growth.
Response: DHS does not agree that this rule will discourage
talented people from choosing the United States for their careers, and
undermine innovation and economic growth due to additional costs as the
number of petitions for H-
[[Page 51371]]
1B visas has exceeded the cap for many years. The H-1B visa is a
nonimmigrant classification and includes aliens who will perform
services in a specialty occupation. An updated fee schedule can be
found under the USCIS public-facing website at <a href="https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker">https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker</a>.
The fee increase mentioned is a USCIS fee increase that is not part
of this rule. On January 31, 2024, USCIS published a final rule that,
for the first time since 2016, adjusted certain immigration and
naturalization benefit request fees. With the final rule, USCIS can
recover its operating costs more fully and support timely processing of
new applications. Unlike many other federal agencies, USCIS is almost
entirely fee funded. About 96% of USCIS funding is from filing fees,
and only about 4% is from congressional appropriations. This final rule
went into effect on April 1, 2024.
Comments: Some commenters stated that the fee is too high, and
employers will be reluctant to hire people on visas, people on visas
will be forced to move out of the United States and the U.S. job market
will open up but there will not be any candidates to fill the
positions.
Response: DHS does not agree that this rule will cause the U.S. job
market to not have any candidates to fill positions. As noted elsewhere
in this document, the number of H-1B applications each year exceeds the
cap on the number of H-1B visas available. Therefore, DHS does not
anticipate the demand for H-1B visas to be reduced to the point where
it would adversely impact the labor pool.
The comment that people on visas will be forced to move out of the
United States will not apply to the L-1 nonimmigrant classification as
it enables a U.S. employer to either transfer a professional employee
from one of its affiliated foreign offices to one of its offices in the
United States, or enables a foreign company that does not yet have an
affiliated U.S. office to send a specialized knowledge employee or
executive/manager to the United States to help establish one. Qualified
employees entering the United States to establish a new office will be
allowed a maximum initial stay of one year. All other qualified
employees will be allowed a maximum initial stay of three years.
Comments: Some commenters stated that the fee increase will affect
the legal immigration in the country and discourage retaining talent.
Some commenters stated that this would disproportionately affect
smaller employers who are drivers of innovation and economic growth.
Additional costs could force them to reduce hiring or even lay off
valuable employees. One commenter stated that the United States has
been ``unfriendly with legal immigration'' and that this rule ``fuels''
the unfriendly position. The commenter noted problems with a site ``for
visa booking'' as well.
Response: DHS does not agree that this rule will negatively affect
legal immigration to the United States. Regarding the claim that the
United States has been unfriendly with legal immigration, it is unclear
to which policies the commenter may be referring. However, this
rulemaking concerns nonimmigrant visa classifications. Both H-1B and L-
1 visas are nonimmigrant visa classifications and allow U.S. employers
to temporarily employ foreign workers in highly specialized
occupations. These occupations have very strict eligibility guidelines
and the term of employment under these classifications is limited.
Regarding the effect on small businesses, this rule is expected to
affect, at a maximum, only approximately 16 percent of small entities
in the United States that file H-1B or L-1 petitions. Therefore, the
effect on nonimmigrants who work for or wish to work for small
businesses is minimal. DHS does not know if companies would choose to
outsource some work in response to this rulemaking.
With respect to potential problems with DHS websites, DHS notes it
is outside the scope of this rule. Moreover, DHS is unable to address
these alleged problems because the commenter did not specify the
problems or sites.
Comments: Some commenters stated that the regulation can especially
affect areas reliant on specialized knowledge and talent from abroad,
making the United States less attractive to global talent and driving
skilled professionals to other countries. One commenter stated that the
regulation would particularly affect artificial intelligence (AI),
robotics, machine learning, and related employment opportunities, which
could erode America's competitive edge; other countries have
implemented more lenient immigration policies designed to attract
skilled professionals; consequently, the United States could lag behind
in future technological advancements.
Response: DHS does not agree that this rule will make the United
States less attractive to skilled professionals nor that the United
States will lag behind in future technological advancements. As stated
throughout this rule, the 9-11 Biometric Fee only applies to covered
employers, which by statute are those employers that employ 50 or more
total 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.
Furthermore, Congress has mandated a cap of 65,000 H-1B visas per year
maximum.\31\ Typically, the United States has more applicants than
available visas. Even if this rule caused a slight reduction in visa
applications, DHS does not agree that the number of applicants for
visas would fall below the cap. The L-1 nonimmigrant classification
enables a U.S. employer to transfer an employee from one of its
affiliated foreign offices to one of its offices in the United States
for a limited time frame. L-1 visa applications have specific
eligibility requirements. The L-1 category does not have a cap on how
many visas can be issued each year, however, DHS does not believe the
9-11 Biometric Fee will have a substantial impact on the number of
applicants for L-1 visas as this fee is minimal compared to other costs
associated with the hiring of an L-1 employee (relocation, wages, other
existing fees). Further details can be found under the following USCIS
sites: L-1A information under <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>. L-1B information under <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>.
---------------------------------------------------------------------------
\31\ An additional 20,000 nonimmigrants who have earned a
master's or higher degree from a U.S. institution of higher
education are exempt from the 65,000 cap. See INA 214(g)(5)(C) (8
U.S.C. 1184(g)(5)(C)).
---------------------------------------------------------------------------
Comments: Some commenters stated this should not be applied
retroactively for previous or current H-1B visa holders and recommended
that the rule should only be applied to new H-1B petitioners.
Response: DHS understands the commenters' concerns about
retroactive application of these fees. This rule will only be applied
to the relevant petitions as of the implementation date of the rule.
These fees will not retroactively apply to past or to pending
petitions.
Comments: One commenter said that DHS notes the collections of
these fees have been lower than expected and the increased fees aim to
rectify the shortfall, but this approach places burden on employers and
employees instead of finding more balanced solutions.
Response: This rulemaking concerns the 9-11 Response and Biometric
Entry-
[[Page 51372]]
Exit Fee which was established by Congress through Public Law 114-113
after the 2010 Supplemental Fee expired. This fee allows the continued
success of the congressionally mandated biometric program which
enhances national security. This rule interprets Public Law 114-113 to
include all extension of status requests as subject to the 9-11
Biometric Fee. As noted elsewhere, only 16 percent, at maximum, of
small businesses that file H-1B or L-1 petitions are expected to be
affected by this rulemaking.
Comments: Some commenters stated the rule may deter skilled
professionals from seeking H-1B extensions, leading to talent drain.
One commenter stated that this fee hike could exacerbate existing
skills gap in industries like technology, engineering, and healthcare,
where there is already a shortage. This could also slow down innovation
and productivity, affecting the U.S. economy.
Response: DHS does not agree that this rule will deter skilled
professionals from seeking H-1B nonimmigrant classification extensions
as extensions have to be petitioned for by the U.S. employer. The H-1B
program allows U.S. employers to temporarily employ foreign workers in
occupations that require the theoretical and practical application of a
body of highly specialized knowledge and a bachelor's degree or higher
in the specific specialty, or its equivalent. DHS disagrees with the
commenters' assertion that this rule will have broad adverse effects,
such as a talent drain or decrease in innovation or productivity. As
stated throughout this rule, the 9-11 Biometric Fee only applies to
covered employers, which by statute are those employers that employ 50
or more total 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. As such, H-1B nonimmigrants who work for employers that are not
covered employer for purpose of the 9-11 Biometric Fee would be
unaffected by this rulemaking.
e. Comments Expressing Opposition Due to Fee Being too High Generally
Comments: Some commenters stated that CBP will see less petitions
which will further cause a shortage of funds.
Response: As stated elsewhere, this rulemaking pertains to the 9-11
Response and Biometric Entry-Exit Fee which was established by Public
Law 114-113, after the 2010 Supplemental Fee expired, and must be
submitted by covered employers filing certain H-1B or L-1 petitions.
This fee allows the continued success of the congressionally mandated
biometric program and enhances national security.
Comments: One commenter stated this rule goes against the plain
intent of the American Competitiveness in the Twenty-First Century Act
of 2000 (commonly referred to as ``AC21'') which, in part, added INA
204(j). Public Law 106-313, 114 Stat. 1251, 1254 (8 U.S.C. 1153 note).
If employers are hampered with additional fees, they may not retain the
employees.
Response: DHS does not have any insight regarding whether this rule
has an effect on employee retention. Company policies and employee
performance play a vital role in employee retention. Application of
AC21 is outside the scope of this rule.
Comments: One commenter stated that they strongly disagree and
would not recommend any increase. Another commenter suggested reducing
all fees instead of increasing fees to increase economic growth in the
United States of America.
Response: The 9-11 Response and Biometric Entry-Exit Fee was
established by Congress through Public Law 114-113 after the 2010
Supplemental Fee expired. This fee allows the continued success of the
congressionally mandated biometric program and enhances national
security. The fee amounts are set by the statute.
f. Comments Expressing Opposition Due to Rule Being Unlawful or Outside
CBP's Authority
Comments: Some commenters stated the proposal is unlawful, not in
line with CBP's authority, immoral, counterproductive to high-skilled
immigrants, and the fee is too high. One commenter urged DHS to
withdraw its proposed change to the scope of applications subject to
the 9-11 Biometric Fee. The commenter stated that this is more than
just a ``clarification'' of existing statutory language, and the rule
is contrary to the law, the governing statute, as well as the agency's
long-standing interpretation of that statute and is not justifiable
based on the unpersuasive policy considerations proffered by DHS.
Response: DHS notes that H-1B and L-1 visas are nonimmigrant visa
classifications. DHS does not know which law the commenter believes
this rulemaking runs contrary to, however, the 9-11 Biometric Entry-
Exit Fee was established by Congress through Public Law 114-113 after
the 2010 Supplemental Fee expired. This fee allows the continued
success of the congressionally mandated biometric program and enhances
national security. DHS has the statutory authority to collect fees
related to immigration benefits. INA 281 (8 U.S.C. 1351). The fee
amounts and company size are clearly stated in the statute. The
interpretation of the statute in this final rule aligns the regulations
with the statutory text and congressional intent.
g. Comments Expressing Opposition With Specific Recommendations
Comments: One commenter suggested that DHS increase the renewal fee
only for the first renewal, not for subsequent renewals. Once
individuals can file for Adjustment of Status, the need for
nonimmigrant visa renewals diminishes.
Response: DHS appreciates the feedback; however, the 9-11 Response
and Biometric Entry-Exit Fee was established by Congress through Public
Law 114-113 after the 2010 Supplemental Fee expired. The statute states
that the fee is for ``extension of status'' requests, not just the
first extension of status request. The H-1B and L-1 classifications are
nonimmigrant classifications and, therefore, fees for Adjustment of
Status are outside the scope of this rule.
Comments: Some commenters recommended allowing employees to pay the
fee if employers are unwilling to do so. According to commenters, this
provides a critical option for visa holders to maintain their status
and continue contributing to their employers and the economy.
Response: The statutes and existing regulations specify that the
fee is required to be paid by the employer. Sec. 402(g), Public Law
114-113; 8 CFR 106.2(c)(8) and (9). DHS has no insight into how the 9-
11 Biometric Fee may affect employment packages.
Comments: Some commenters recommended reviewing and streamlining
operations to reduce overhead costs. These commenters stated that
savings can then be redirected to fund essential services without
needing to increase fees.
Response: DHS does not have authority to change the funding source
for the 9-11 Biometric Fees. The 9-11 Biometric Entry-Exit Fee was
congressionally mandated and established by Public Law 114-113 after
the 2010 Supplemental Fee expired. This fee allows the continued
success of the congressionally mandated biometric program and enhances
national security. However, CBP is also always working to use resources
as efficiently as possible.
Comments: Some commenters recommended investing in technology to
automate and improve efficiency, ultimately leading to long-term cost
savings that can fund other areas.
[[Page 51373]]
Response: Technology investments are out of scope for this
rulemaking. However, DHS notes that it continuously explores
technological advances that create efficiencies in processes. The 9-11
Biometric Fees were established by Congress to fund the biometric
entry-exit program and DHS does not have the authority to change the
funding source.
Comments: Several commenters urged CBP to consider alternative
funding for the biometrics program. These commenters offered numerous
alternative suggestions for ways to address funding challenges that
they averred provided a balanced manner ensure sustainability of
immigration services while being mindful of the effect on individuals
and businesses. The specific recommendations and their putative
benefits from commenters regarding funding sources are as follows:
1. Incremental Fee Increases: Instead of a steep one-time fee hike,
consider gradual increases over a set period. This allows all
stakeholders to adjust financially and plan accordingly.
2. Service-Specific Fees: Implement fees for specific services or
expedited processing options. Those who wish to avail themselves of
faster services can opt to pay more, contributing additional funds.
3. Public-Private Partnerships: Engage with private sector entities
that benefit from the immigration system. Partnerships can lead to
shared funding for programs that enhance border security and
immigration services.
4. Voluntary Contributions: Create a system where individuals and
corporations can make voluntary contributions to support immigration
services, potentially offering tax incentives for such donations.
5. Usage-Based Fees: Similar to toll roads, consider fees based on
the frequency of use or the level of access required by individuals or
businesses to immigration services.
6. Government Grants and Subsidies: Seek additional funding through
government grants aimed at enhancing national security and immigration
infrastructure.
7. Diversified Funding Sources: Explore a mix of funding sources,
including fees, government allocations, and private investments, to
create a robust financial model.
8. Legislative Action: Work with lawmakers to secure dedicated
funding through legislation, ensuring a stable and predictable source
of income for immigration services.
9. Exploring other funding sources, such as a modest surcharge on
all U.S.-bound international flights, to distribute costs more
equitably.
10. Considering a sliding scale fee structure based on company size
or visa holder salary to minimize effect on smaller businesses.
11. Broaden the Fee Distribution: Distribute the fee increase
across all visa classes, including H-1B, H-2, T-1, L-1, O-1, and F-1
visas. This approach ensures that no single visa category bears the
entire financial burden, promoting fairness and equity.
Response: DHS does not have authority to change the funding source
for the 9-11 Biometric Fees. The 9-11 Biometric Entry-Exit Fee was
congressionally mandated and established by Public Law 114-113 after
the 2010 Supplemental Fee expired. Congress specified which petitioners
would pay this fee and the specific circumstances when it is to be
paid. This fee allows the continued success of the congressionally
mandated biometric program and enhances national security. DHS
appreciates the suggestions for alternative funding and retains the
discretion to consider them in other settings, as appropriate.
4. Comments That Are Out of Scope
Numerous commenters submitted comments that fall outside the scope
of this rulemaking, including comments regarding the immigration
process, government support of immigrants generally, suggestions for
other, unrelated, fee increases, process for nonimmigrants gaining
permanent residency status, proposals to eliminate the H-1B and similar
programs, proposals for longer H-1B and L-1 visa stays, and various
other unrelated topics. DHS is not responding to most comments which
fall outside the scope of the 9-11 Biometric Fee rulemaking here.
Below, DHS provides additional information in response to certain out
of scope comments for informational purposes only.
Comments: Some commenters stated that the entire knowledge industry
in the United States is run like a cartel; Indian managers hire people
of their own ethnicity with credentials and education being fake.
Commenters said Americans are advised that they are not qualified for a
job (also locals and permanent residents) as Indian managers accept
underhand bribes in the form of payments in India or elsewhere.
Commenters said corporations exploit statistical data to advance their
narrative that H-1B and L-1 visas aid with employment growth.
Response: Comments concerning the administration of the United
States' visa programs are outside the scope of this rulemaking.
However, more information on USCIS's efforts to combat fraud and abuse
is available at <a href="https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program">https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program</a>.
Comments: One commenter suggested implementing the $4,000 fee for
Family and Diversity Visa Lottery cases as well, stating that the
Family and Diversity visas do not incur costs associated with renewals
and are granted Green Cards immediately, allowing them unrestricted
work opportunities in the United States.
Response: The Diversity visas are outside the scope of this
rulemaking. However, DHS notes that H-1B and L-1 visas are nonimmigrant
visa classifications, while the Diversity visa is an immigrant visa
classification. Additionally, there is no ``family visa lottery.''
Diversity visas are controlled and reviewed by the Department of State
(DOS). Each year, DOS puts out a list of eligible and ineligible
countries. The list of countries may change each year. More information
on the diversity visa can be found at <a href="https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html">https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html</a>.
Comment: One commenter stated that USCIS and CBP are only
interested in increasing fee structure but not in addressing Green Card
backlogs. The commenter said legal immigrants, like the author of the
comment, abide by laws and pay taxes but end up crushed by unempathetic
rules making them fear losing their job, money, and assets. The
commenter said that the United States should give them Green Cards so
they can start businesses and increase employment in the United States.
Response: Eligibility for Lawful Permanent Resident (LPR) status
(commonly referred to as a Green card) is outside the scope of this
rulemaking. For more information on Green cards, please see <a href="https://www.uscis.gov/green-card">https://www.uscis.gov/green-card</a>.
IV. Changes to Regulations
DHS is amending 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 status petitions filed by a covered employer, in addition
to all previously covered H-1B and L-1 petitions. Accordingly, DHS is
replacing the phrase ``certain petitioners'' with ``all petitioners''
in the subparagraphs concerning both H-1B and L-1 petitioners. All
petitioners who employ 50 or more employees in the United States, if
more than 50 percent of the petitioner's employees in the
[[Page 51374]]
aggregate are in H-1B, L-1A, or L-1B nonimmigrant status, will be
considered as covered employers for purpose of the 9-11 Biometric Fee.
This change will allow DHS to charge all covered petitioners the 9-11
Biometric Fee, including those filing 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.
DHS is also making clarifying amendments. First, DHS is inserting
the phrase ``[p]etitioners filing an amended petition that do not seek
an extension of the alien's currently authorized H-1B status are exempt
from this fee'' '' in both provisions. 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 revised regulations,
covered petitioners filing an H-1B or L-1 amended petition that does
not include an extension of status request would not be required to
submit the 9-11 Biometric Fee.
DHS is further clarifying the method by which it determines whether
a petitioner is a covered employer. Prior to this rulemaking, DHS
counted all full-time and part-time employees who held H-1B or L-1
status in order to determine whether an employer met the definition of
``covered employer'' by reaching the 50 percent threshold. DHS required
the 9-11 Biometric Fee once the threshold to be considered a covered
employer was met. DHS is adding the words ``in the aggregate'' to both
provisions in 8 CFR 106.2(c)(8) and (9) to clarify this practice.
V. Statutory and Regulatory Reviews
A. Executive Orders 12866, 13563, and 14192
Executive Order 12866 (Regulatory Planning and 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. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 14192 (Unleashing Prosperity Through Deregulation) directs
agencies to significantly reduce the private expenditures required to
comply with Federal regulations and provides that ``any new incremental
costs associated with new regulations shall, to the extent permitted by
law, be offset by the elimination of existing costs associated with at
least 10 prior regulations.''
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, OMB has not reviewed this rule.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States or any other
function performed by the U.S. Federal Government with respect to
aliens. See OMB Memorandum M-25-20, ``Guidance Implementing Section 3
of Executive Order 14192, titled `Unleashing Prosperity Through
Deregulation''' (Mar. 26, 2025).
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 total
of $37.9 million in fiscal year 2026 and $40.0 million in fiscal year
2027.\32\ This will ensure that covered employers 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.
---------------------------------------------------------------------------
\32\ Figures are based on the rule being in effect for the full
fiscal year. Transfers will be reduced proportionally to the
percentage of the year for which the rule is not in effect (e.g. FY
2026 transfers would be approximately $9.5 million if the rule is in
effect for a quarter of the year).
---------------------------------------------------------------------------
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 status 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 would generally have to pay an additional fee of $4,000 or
$4,500 for H-1B or L-1 petitions, respectively, and 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 adopting regulations that align with Congress's intent for
Public Law 114-113, as proposed in the NPRM published on June 6, 2024.
The change expands 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
filed by covered employers seeking initial grants of status or an
extension of status, regardless of whether the Fraud Fee applies. By
implementing the best interpretation of 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 aliens
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 biometric
programs that also benefit other government agencies by providing
assurance that the travelers arriving match their travel documents.
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 status petitions without
a change of employer filed by covered employers.
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. Therefore, in this regulatory impact
analysis, DHS discusses the
[[Page 51375]]
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) 2026-2027.\33\ DHS bases
its estimates on data from FY 2018-2025.
---------------------------------------------------------------------------
\33\ 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 status petitions without
a change of employer filed by covered employers.
The H-1B submissions subject to the 9-11 Biometric Fee and the
resulting transfer payments under the baseline are shown in Table
1.\34\ For FY 2026 projected annual submissions, USCIS anticipates an
11.7 percent reduction in H-1B submissions from the 3-year average of
submissions from FY 2023 to FY 2025 to account for the continuing
downward historical trend. For FY 2027 projected annual submissions,
USCIS takes the 3-year average of FY 2024 to FY 2026 submissions.
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.
---------------------------------------------------------------------------
\34\ FY 2018-2022 data is based on data and projections provided
by USCIS subject matter experts on August 21, 2025. FY 2023-2027
data is based on data and projections provided by USCIS subject
matter experts on November 3, 2025.
---------------------------------------------------------------------------
On September 19, 2025, the President issued proclamations that may
result in a reduction in the number of future H-1B visas and may affect
other employment-based visas, including L-1 submissions.\35\ While the
Presidential proclamations may result in an overall reduction in
employment-based nonimmigrant visas due to an increased demand for the
hiring of U.S. citizens and/or others in the United States who do not
need a visa for purposes of employment, there is no data presently
available to assess the effects of the Presidential proclamations on
other visas such as the L-1. Therefore, DHS notes that this analysis is
based on historic averages of H-1B and L-1 submissions. To the degree
that future H-1B and L-1 submissions differ from the projections used
in this analysis, transfers will be higher or lower.
---------------------------------------------------------------------------
\35\ While the Presidential proclamation only specifically
mentions H-1B visas, it is possible that there could be downstream
effects on other visas, including L-1 visas.
Table 1--Baseline Annual H-1B Submissions and Transfer Payments
----------------------------------------------------------------------------------------------------------------
Total actual &
A--new E--change of Total projected
Fiscal year employment \1\ employer \1\ 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............................ 2,915 2,318 5,233 4,000 20,948,000
2024............................ 5,384 2,173 7,557 4,000 30,460,000
2025............................ 3,120 2,240 5,360 4,000 21,776,000
2026............................ 3,361 1,981 5,342 4,000 21,368,000
2027............................ 3,955 2,131 6,086 4,000 24,344,000
----------------------------------------------------------------------------------------------------------------
\1\ Fee requirements are not changing for this category under this rule.
\2\ FY 2026 is equal to the 3-year receipt average from FY 2023-2025 with an adjustment of -11.7% to the H-1B
group to account for the continuing downward trend.
\3\ Projection for FY 2027 is a 3-year average from the 3 most recent years.
\4\ Total Actual Transfer Payments differ from expected values based on calculations 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, multiplying the projected submissions by
the $4,000 fee provides the projected annual transfer payments
resulting from this rule.
Table 2--Annual H-1B Submissions Newly Subject to Fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
B--
continuation C--change in Total actual &
of previously previously D--new F--amended Total projected
Fiscal year approved approved concurrent petition submissions Fee amount transfer
employment employment employment payments
without change
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
[[Page 51376]]
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.................................... 3,423 1,355 60 4,437 9,275 0 0
2024.................................... 3,188 991 37 4,158 8,374 0 0
2025.................................... 3,269 960 36 4,135 8,400 0 0
2026.................................... 2,908 973 39 3,747 7,667 4,000 30,668,000
2027.................................... 3,122 975 37 4,013 8,147 4,000 32,588,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The 9-11 Biometric Fee was not required for submissions in this table for 2018-2025.
\2\ Data is applicable to petitions subject to the 9-11 Biometric Fee only and does not include data on all petitions received.
\3\ FY 2026 is equal to the 3-year receipt average from FY 2023-2025 with an adjustment of -11.7% to the H-1B group to account for the continuing
downward trend.
\4\ Projection for FY 2027 is a 3-year running average from the 3 most recent years.
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 does not believe that petitioners newly required to pay
the 9-11 Biometric Fee as a result of this rule will change their rate
of participation in the H-1B and L-1 programs because of this rule
since the need for specialized workers is prominent in the number of
petitions received yearly. The number of petitions received has
exceeded the cap numbers of visas granted by far for the past several
years. Similar information on the number of L-1 petitions 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. DHS
estimated the projected submissions that will be subject to the fee as
a result of this rulemaking 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 2018-2025. This multiplier (1.8127) 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. DHS requested comments on this assumption in the
NPRM and did not receive any comments that disagreed with 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.................................... 5,592 0 5,592 $4,500 $25,162,629 $0 $25,162,629
2019.................................... 5,409 0 5,409 4,500 24,342,327 0 24,342,327
2020.................................... 2,937 0 2,937 4,500 13,216,689 0 13,216,689
2021.................................... 1,082 0 1,082 4,500 4,869,499 0 4,869,499
2022.................................... 1,854 0 1,854 4,500 8,343,035 0 8,343,035
2023.................................... 1,120 0 1,120 4,500 5,040,095 0 5,040,095
2024.................................... 1,029 0 1,029 4,500 4,628,655 0 4,628,655
2025.................................... 844 0 844 4,500 3,799,215 0 3,799,215
2026.................................... 883 1,600 2,483 4,500 3,973,050 7,201,843 11,174,892
2027.................................... 919 1,665 2,584 4,500 4,133,640 7,492,940 11,626,580
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ L-1 submissions were calculated by dividing the actual transfer payments by the fee amount for FY 2018-2025.
\2\ Data is applicable to supplemental fee provisions only and does not include data on all applications received.
\3\ FY 2026 is equal to the 3-year receipt average from FY 2023-2025 with an adjustment of -11.5% to the L group to account for the continuing downward
trend.
\4\ Projection for FY 2027 is a 3-year running average from the 3 most recent years.
\5\ 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 2018-2025 (a multiplier of 1.8127).
In undiscounted 2025 dollars, DHS estimates this rule will result
in a combined total increase of H-1B and L-1 transfer payments of $37.9
million in FY 2026 and $40.0 million in FY 2027. 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 2026 and 2027. From FY 2026 to 2027, H-1B and L-1 petitioners
will experience a total in transfer payments of $74.5 million if
discounted at three percent and $70.4 million if discounted at seven
percent. Petitioners will experience total annualized transfer payments
of $38.9 million under both three and seven percent discount rates.
[[Page 51377]]
Table 4--Undiscounted Projected Transfer Payments From the Rule
----------------------------------------------------------------------------------------------------------------
H-1B Total
projected L-1 projected projected
Year undiscounted undiscounted undiscounted
transfer transfer transfer
payments payments payments
----------------------------------------------------------------------------------------------------------------
2026............................................................ $30,668,000 $7,201,843 $37,869,843
2027............................................................ 32,588,000 7,492,940 40,080,940
-----------------------------------------------
Total....................................................... 63,256,000 14,694,783 77,950,783
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Table 5-Total Monetized Present Value and Annualized Additional Transfer
Payments From the Rule
------------------------------------------------------------------------
3% discount 7% discount
Fiscal year rate rate
------------------------------------------------------------------------
2026.................................... $36,766,837 $35,392,376
2027.................................... 37,780,130 35,008,245
-------------------------------
Total............................... 74,546,968 70,400,622
-------------------------------
Net Present Value............... 74,546,968 70,400,622
Annualized Transfer Payments............ 38,959,053 38,938,006
------------------------------------------------------------------------
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.\36\
---------------------------------------------------------------------------
\36\ 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 in 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>.
---------------------------------------------------------------------------
As noted above, DHS acknowledges that there may be negligible costs
for employers to check whether their applications require the payment
of a fee. DHS anticipates this check will take only a short amount of
time as the information will remain available on the USCIS website at
<a href="https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker">https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker</a>.
Further, DHS acknowledges that, in theory, the increase in cost for
H-1B and L-1 applications could reduce the number of businesses
deciding to hire H-1B and L-1 employees. However, DHS believes that
few, if any, businesses would reduce their number of H-1B and L-1
employees due to the cost increase caused by this rule. Compared to the
other costs associated with the hiring of an H-1B or L-1 employee
(relocation, wages, other existing fees), DHS believes this would be
considered a minimal added expense for employers. Additionally, any
reduction in the number of H-1B or L-1 employees by an employer would
only reduce the number of applications in excess of the H-1B and L-1
caps and the unhired employees would remain hirable by another
employer.
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 in the
United States if more than 50 percent of their employees are 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 could be subject to the 9-11 Biometric Fee, provided
more than 50 percent of their employees are 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
that file H-1B or L-1 petitions will be affected by this rule.\37\ The
minimum percentage is zero if none of the small businesses (with more
than 50 employees) has more than 50 percent of its employees with H-1B
or L-1 status.
---------------------------------------------------------------------------
\37\ 41 out of 264 confirmed small entities sampled (41/264 =
.1553 or 15.53%).
---------------------------------------------------------------------------
Employers with 50 or more employees in the United States and more
than 50 percent of employees in H-1B or L-1 status will pay the 9-11
Biometric Fee (unless filing an amended petition without an extension
of status request). 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 an 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 that could be affected
by the rule, DHS was unable to determine how many employers have more
than 50 percent of their employees in the United
[[Page 51378]]
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 requested 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. Public comments are summarized and addressed in
section two below. DHS has conducted the following Final Regulatory
Flexibility Analysis.
1. A Statement of the Need for, and Objectives of, the rule
DHS is amending regulations to implement an interpretation of the
statutory language in Public Law 114-113 to align the regulations 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 align with congressional intent in
providing DHS the ability to comply with its congressional mandate
under section 7208 of the IRTPA to implement and maintain biometric
entry and exit data.
2. A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis, a Statement
of the Assessment of the Agency of Such Issues, and a Statement of any
Changes Made in the Proposed Rule as a Result of Such Comments
DHS requested public comment on the number of small companies that
would be subject to the 9-11 Biometric Fee and how often small
companies would pay the 9-11 Biometric Fee. These comments are also
addressed generally above in section III.B., but we discuss them here
for clarity as well.
One commenter stated that it was axiomatic that the burden of this
rule would fall heavily on smaller sized businesses because few larger
or mid-sized companies would come close to having L-1 and H-1B workers
comprise 50% of their employees.
DHS agrees with the commenter that some burden is likely to fall on
small businesses, but it is not clear how much. As the commenter
states, only a few larger or mid-sized businesses are made up of more
than 50% L-1 and H-1B workers. However, because these businesses employ
so many workers relative to small businesses, the small number of large
and mid-size businesses could still bear the majority of the burden of
this rule. Most small businesses would not be subject to the fee at
all. For a business to be required to pay the fee as implemented by
this rule, the business must have at least 50 employees in the United
States in addition to the requirement that more than 50% of its
employees in H-1B or L-1 status. Based on a random sample, a maximum of
16% of small businesses that hire L-1 and/or H-1B workers would satisfy
these requirements and be subject to the 9-11 Biometric Fee. DHS
considers this the maximum because, without data to show otherwise, DHS
assumed that all small businesses that hired L-1 and/or H-1B workers
also had a workforce that was at least 50% L-1 and/or H-1B workers. In
all likelihood, some percentage, possibly the majority, of these small
businesses would be exempt from the fee because their workforce did not
meet the 50% threshold. Even if a substantial portion of the burden
falls on small businesses, CBP believes this rule is necessary because
without additional funding, CBP will be unable to maintain its current
biometric entry operations or expand biometric confirmation to fully
implement a comprehensive biometric exit system as required by section
7208 of the Intelligence Reform and Terrorism Prevention Act of 2004.
Biometric entry and exit programs benefit the public by providing
additional security for travelers and commerce crossing the U.S.
border. DHS did not make any changes to the rule in response to this
comment.
3. The Response of the Agency to any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
Response to the Proposed Rule, and a Detailed Statement of any Change
Made to the Proposed Rule in the Final Rule as a Result of the Comments
DHS did not receive any comments from the Chief Counsel for
Advocacy of the SBA in response to the proposed rule.
4. A Description of and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate is
Available
The rulemaking 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, 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
----------------------------------------------------------------------------------------------------------------
Percent of
Number of Number of industry in
Primary NAICS code Industry description small entities entities in sample are
in sample sample 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
[[Page 51379]]
446110................................ Pharmacies and Drug 4 4 100
Stores.
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 3 3 100
in Biotechnology
(except
Nanobiotechnology).
541611................................ Administrative 3 4 75
Management and General
Management Consulting
Services.
518210................................ Data Processing, 3 3 100
Hosting, 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 3 3 100
and 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.
Based on the sample and the threshold for employers to be subject
to the requirements of the 9-11 Biometric Fee (50 or more employees in
the United States and more than 50 percent of employees in H-1B or L-1
status), 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.\38\ The minimum percentage is zero if none of the covered
employers has more than 50 percent of its employees with H-1B or L-1
status.
---------------------------------------------------------------------------
\38\ 41 out of 264 confirmed small entities sampled (41/264 =
.1553 or 15.53%).
---------------------------------------------------------------------------
5. A Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the 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 regulation does not change any required reporting or
recordkeeping. As discussed above, this rule could affect any small
entity that employs 50 or more people in the United States with more
than 50 percent of employees in H-1B or L-1 nonimmigrant status.
The rule has compliance requirements for affected small businesses
since it amends 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
status petitions filed by covered employers in addition to all
previously covered H-1B and L-1 petitions. As a result, petitioning
small businesses with 50 or more employees in the United States and
more than 50 percent of employees in H-1B or L-1 status are subject to
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.
6. A Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
DHS is implementing a statutory interpretation of Public Law 114-
113 that minimizes the impact on small businesses because only entities
with 50 or more employees in the United States 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 continued
implementation and required maintenance of biometric entry and exit
data systems already in place.
The alternative to this rule would be to take no regulatory action
and, while this would have a smaller impact on small businesses, it
would leave DHS unable to accomplish the best interpretation of, and
stated objectives, of the applicable statutes. This would require DHS
to reallocate funds that DHS has marked for other purposes in order to
maintain and finish implementing current biometric entry operations and
implement biometric exit operations that are required by section 7208
of the IRTPA.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to the Office of Management and Budget (OMB) for
review and approval, any reporting requirements inherent in a final
rule, unless they are exempt. Although this final rule does not impose
any new reporting or recordkeeping requirements under the Paperwork
Reduction Act, this final rule will require non-substantive
modifications to USCIS Form I-129, Petition for a Nonimmigrant Worker,
covered under OMB Control Number 1615-0009. These edits include
instructional updates for H-1B and L-1 petitions regarding which
petitions are subject to the fee mandated by Public Law 114-113 to
comply with the changes made by this final rule. Accordingly, USCIS has
submitted a Paperwork Reduction Act Change Worksheet to OMB for review
and approval in accordance with the PRA.
[[Page 51380]]
D. Privacy
The Privacy Act of 1974 (5 U.S.C. 552a) (Privacy Act) prescribes
how federal agencies store and use personal information. DHS will
ensure that all Privacy Act requirements and applicable DHS privacy
policies are adhered to as a result of this regulation. DHS has issued
a Privacy Impact Assessment (PIA) which covers H-1B and L-1 petitions,
DHS/USCIS/PIA-016a Computer Linked Application Information Management
System and Associated Systems and DHS/CBP/PIA-009 TECS System: CBP
Primary and Secondary Processing, which is available at <a href="http://www.dhs.gov/privacy">www.dhs.gov/privacy</a>.
The Privacy Act requires that federal agencies issue a System of
Record Notice (SORN) to provide the public notice regarding personally
identifiable information (PII) collected in a system of records. SORNs
explain how the information is used, retained, and may be accessed or
corrected, and whether certain portions of the system are subject to
Privacy Act exemptions for law enforcement, national security, or other
reasons. DHS follows approved routine uses described in the associated
published system of records notices, DHS/USCIS-001--Alien File, Index,
and National File Tracking System, DHS/USCIS-007--Benefits Information
System, and DHS/CBP-011 U.S. Customs and Border Protection TEC. DHS may
also share this information, as appropriate, for law enforcement
purposes or in the interest of national security.
E. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (adjusted for inflation), and it will
not significantly or uniquely affect small governments. Therefore, no
actions are necessary under the provisions of the Unfunded Mandates
Reform Act of 1995.
F. Congressional Review Act
Before a rule can take effect, 5 U.S.C. 801, the Congressional
Review Act (CRA), requires agencies to submit the rule and a report
indicating whether it is a major rule, to Congress and the Comptroller
General. If a rule is deemed a ``major rule'' by OMB, the CRA generally
provides that the rule may not take effect until at least 60 days
following its publication. 5 U.S.C. 801(a)(3). The Administrator of the
Office of Information and Regulatory Affairs of OMB has determined that
this rule does not meet the criteria for a ``major rule'' in 5 U.S.C.
804(2). This rule will take effect 30 days after publication. A report
about the issuance of this final rule has been submitted to Congress
and the Comptroller General of the United States.
G. National Environmental Policy Act
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.,
applies to them and, if so, what degree of analysis is required. DHS
Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01
(Instruction Manual) establish the policies and procedures that DHS and
its components use to comply with NEPA, 42 U.S.C. 4321 et seq.
NEPA allows Federal agencies to establish categories of actions
(``categorical exclusions'') that experience has shown do not,
individually or cumulatively, have a significant effect on the human
environment and, therefore, do not require an environmental assessment
(EA) or environmental impact statement (EIS). See 42 U.S.C. 4336(a)(2),
4336e(1). The Instruction Manual, Appendix A lists the DHS Categorical
Exclusions.
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. See Instruction
Manual 023-01 at V.B(2)(a)-(c).
DHS has analyzed this action under Directive 023-01 and Instruction
Manual 023-01-001-01. DHS has made a determination that this rulemaking
action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. First,
this rule clearly fits within the Categorical Exclusion A3(d) of DHS's
Instruction Manual 023-01-001-01, Appendix A, for rules that
``interpret or amend an existing regulation without changing its
environmental effect.'' Second, this rule is not part of a larger
action. Third, this rule presents no extraordinary circumstances
creating the potential for significant environmental effects.
Therefore, a more detailed NEPA review is not necessary.
List of Subjects in 8 CFR 106
Citizenship and naturalization, Fees, Immigration.
Regulatory Amendments
For the reasons stated in the preamble, DHS is amending part 106 of
title 8, Code of Federal Regulations (8 CFR part 106), as set forth
below:
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, 1801-
1815; 48 U.S.C. 1806; Pub. L. 107-609; 115 Stat 1012; Pub L. 107-
296, 116 Stat. 2135 (6 U.S.C. 101 note); Pub. L. 114-113, 129 Stat.
2242 (49 U.S.C. 40101 note); Pub. L. 115-123, 132 Stat. 64.
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: $4,000. Petitioners filing an amended petition that do not seek
an extension of the alien's currently authorized H-1B status are exempt
from this fee. 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: $4,500. Petitioners filing an amended petition that do not seek
an extension of the alien's currently authorized L-1 status are exempt
from this fee. This fee will apply to petitions filed on or before
September 30, 2027.
* * * * *
Markwayne Mullin,
Secretary of Homeland Security.
[FR Doc. 2026-16231 Filed 8-7-26; 8:45 am]
BILLING CODE 9111-14-P
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