When U.S. employers sponsor foreign workers, USCIS imposes a variety of filing fees. Some are flat fees, while others depend on the number of employees the petitioner has in the United States. Employers that are part of larger corporate groups face unique challenges in determining how to count employees correctly. Misclassification can lead to rejections, additional fees, or compliance problems.
This article compares the different contexts in which employee headcounts matter, with exact citations from forms and regulations.
H-1B Base Filing Fee
The base filing fee for Form I-129 in the H-1B category also depends on employer size. Employers with 25 or fewer full-time equivalent employees in the United States pay $460, while those with more than 25 employees pay $780. The Form I-129 Instructions specify that this headcount must include employees of the petitioner as well as those of affiliates and subsidiaries. Unlike the ACWIA training fee, parent company employees are not excluded.
The Asylum Program Fee
In March 2024, USCIS introduced the Asylum Program Fee, which applies to Form I-129, I-129CW, and I-140 petitions. Large employers with more than 25 full-time equivalent employees must pay $600. Small employers with 25 or fewer full-time equivalent employees must pay $300. Nonprofit organizations are exempt.
USCIS made the aggregation rule explicit in the forms themselves. On Form I-129, Part 5, Item 15, and Form I-140, Part 1, Item 6, the question reads:
“Do you employ 25 or fewer full-time equivalent employees in the United States, including all affiliates and subsidiaries?”
This wording requires petitioners to count all full-time equivalent employees across U.S. affiliates and subsidiaries, aggregate part-time workers into FTEs, and be ready to submit supporting documentation such as IRS Form 941 if claiming small-employer status. Because the text is built into the forms, this fee regime is the clearest of the different contexts.
The ACWIA Training Fee
Another fee that depends on employee count is the ACWIA training fee, created under the American Competitiveness and Workforce Improvement Act. This fee applies to most H-1B petitions unless the employer qualifies for an exemption.
Employers with more than 25 full-time equivalent employees in the United States must pay $1,500. Employers with 25 or fewer full-time equivalent employees must pay $750.
Exemptions exist for institutions of higher education, nonprofit organizations related to or affiliated with such institutions, nonprofit research organizations, governmental research organizations, and certain primary or secondary educational institutions.
When calculating the number of employees for ACWIA purposes, the petitioner must count its own employees as well as those of its affiliates and subsidiaries, but not those of its parent company. USCIS applies a full-time equivalent test, where part-time employees are aggregated into FTEs.
H-1B Dependency and the Single Employer Rule
H-1B dependency is defined by statute and regulation. The key regulation, 20 C.F.R. § 655.736(b), states:
“Any group treated as a single employer under the Internal Revenue Code (IRC) at 26 U.S.C. 414(b), (c), (m) or (o) shall be treated as a single employer for purposes of the determination of H-1B-dependency.”
This means employers must aggregate employees across controlled groups of corporations, trades or businesses under common control, and affiliated service groups.
The thresholds are:
- 25 or fewer employees → dependent if 8 or more are H-1Bs
- 26–50 employees → dependent if 13 or more are H-1Bs
- 51 or more employees → dependent if 15% or more are H-1Bs
Although the I-129 H Data Collection Supplement asks dependency questions, it does not spell out the affiliate or parent rule. Practitioners must know to apply 20 C.F.R. § 655.736(b) and the incorporated IRC § 414 definitions.
The 50/50 Rule and Super-Dependent Fee
Congress also created a separate fee for so-called “super-dependent” employers. Under INA § 214(c)(9)(B), USCIS must collect $4,000 for each H-1B petition and $4,500 for each L-1 petition if the employer employs 50 or more employees in the United States and more than 50 percent of those employees are in H-1B or L-1 status.
The statute itself does not define whether this applies entity-by-entity or across groups. USCIS applies the same single employer rule used for dependency. 20 C.F.R. § 655.736(b) incorporates IRC § 414(b), (c), (m), (o). Therefore, if a parent company and subsidiaries together exceed 50 employees with more than half on H-1B or L-1, the special fee applies.
The I-129 Instructions repeat the statutory threshold but do not explain aggregation. USCIS guidance ties the analysis back to the dependency rule.
Why ACWIA Is Different
The ACWIA training fee stands apart from the other fees because of how Congress drafted the law. The training fee statute referred only to the employees of the petitioning employer and did not incorporate the Internal Revenue Code’s single employer rules. USCIS interpreted this to mean that affiliates and subsidiaries must be counted, but the parent company should not be.
By contrast, the rules for H-1B dependency and the 50/50 fee explicitly incorporate the IRC definitions at 26 U.S.C. § 414, which pull in parents, subsidiaries, and affiliates. The asylum program fee, a regulatory creation, goes further by stating in the forms themselves that affiliates and subsidiaries are included.
As a result, the ACWIA fee is the only major fee where parent company employees are excluded, while all other contexts require parent company employees to be counted.
Why the Differences?
H1b base filing fee / Asylum Program Fee: USCIS created this fee under its own authority and wrote the aggregation language directly into the forms for clarity.
ACWIA Training Fee: Congress created the fee, and USCIS implemented it with specific instructions that affiliates and subsidiaries must be included, but parent employees excluded.
H-1B Dependency: Based on statute and DOL regulations. The obligation is clear in 20 C.F.R. § 655.736(b) but not repeated in the form instructions.
50/50 Fee: A congressional mandate. USCIS applied the same dependency definitions but left aggregation to be inferred from the regulations rather than restated in the I-129.
Practical Guidance for Employers
Always count employees at the group level when the single employer rule applies.
For the asylum program fee, follow the plain wording on the forms: affiliates and subsidiaries are included.
For the ACWIA training fee, count affiliates and subsidiaries but not the parent company.
For H-1B dependency and 50/50 fees, apply 20 C.F.R. § 655.736(b) and IRC § 414 aggregation.
Re-calculate after mergers, acquisitions, or ownership changes.
Keep documentation ready for USCIS review.
Conclusion
The rules for counting employees are not identical across all USCIS fee contexts. The asylum program fee is straightforward because the forms themselves specify aggregation. The ACWIA training fee has its own nuance by excluding parent-company employees but including affiliates and subsidiaries. H-1B dependency and the 50/50 fee rely on DOL regulations and IRC cross-references that employers must proactively apply.
The safest approach is to assume that employee counts include the entire corporate group wherever dependency or fee triggers are concerned, except where the ACWIA fee specifically excludes parent company employees. By carefully applying these distinctions, employers can avoid rejections, penalties, and costly compliance mistakes.
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