By: Attorney Betty Chu and Attorney Richard Wilner
As of July 20, 2005, H-1B petitions that do not have the proper filing fees will be rejected. Employers seeking to (1) employ a current H-1B nonimmigrant; (2) request an initial extension of H-1B status for a H-1B nonimmigrant or (3) change a nonimmigrant's status and employ him or her in "new employment" must submit the form I-129, its H and L supplements, and the H-1B Data Collection and Filing Fee Exemption supplement (I-129 W).
The form I-129W is required for all H-1B petitioners because it solicits the information that is needed by the USCIS to make the legally-mandated reports to Congress. The form solicits information to determine whether the employer is exempt from the H-1B fee.
The filing fee for the form I-129 Petition for a Nonimmigrant Worker is $185. For businesses with 26 or more full-time employees, there is an additional fee of $1,500. If the business has 25 or fewer full-time employees, the fee is $750.
There is also an additional $500 Fraud Prevention and Detection fee for a U.S. employer seeking initial approval of H-1B status for a beneficiary, or seeking approval to employ an H-1B nonimmigrant currently working for another U.S. employer. This fee became effective on March 8, 2005 and was mandated by the provisions of the H-1B Visa Reform Act of 2004. There is generally no exemption from this fee except for employers seeking to employ nonimmigrants from Chile or Singapore as noted below.
NOTE: Employers seeking to employ nonimmigrants from Chile or Singapore for an initial grant, extension or change of status do not need to include the $500 fraud prevention and detection fee. The Chile and Singapore Free Trade Agreements (FTA) created a new H-1B1 visa category for Chilean and Singaporean professionals in specialty occupations. 6,800 visas are allocated for H-1B1 admissions under the FTA and count against the overall 65,000 cap for H-1B professionals.
Depending on the size of the employer and the basis for classification, the fees can range from $185 to $2,185. Moreover, if the employer wants to request premium processing, there is an additional $1,000 on top of the basic filing fees. Petitioners requesting premium processing must submit form I-907 and the cases must be adjudicated within 15 business days.
The $1,000 premium processing fee must be paid by separate check or money order. Keep in mind that almost all of the fees are paid by the petitioning employer and not the beneficiary. All fees are payable to United States Citizenship and Immigration Services.
Employers must ensure that the proper filing fees are submitted to avoid having petitions rejected and delayed for processing.
BIOGRAPHY: Betty Chu, Esq. is an Associate at Wilner & O'Reilly, practicing Business Immigration Law. She is a member of the Los Angeles and Orange County Bar Associations and has been admitted to practice law in the Central and Southern Districts of California. Ms. Chu received her Juris Doctor from Loyola Law School in Los Angeles and her Bachelor of Arts in Communications from UCLA. She previously served on the American Bar Association's Negotiation Competitions Committee. She is fluent in Mandarin Chinese.