The Department of Homeland Security (DHS), through U.S. Customs and Border Protection (CBP), has published a final rule requiring that employers who employ 50 or more workers in the United States, more than 50 percent of whom hold H-1B or L-1 status, pay an additional $4,000 fee (9-11 Response and Biometric Entry-Exit Fee) on H-1B petitions — $4,500 for L-1 petitions — for new H-1Bs, change of status to H-1B, H-1B/L-1 employer transfers, and now extension of stay petitions as well. Previously, this fee was interpreted to apply only to first-time H-1B or L-1 filings, change-of-status filings, and employer-transfer petitions; extensions of status with the same employer were exempt. Under the new rule, that exemption is eliminated, meaning covered employers will now owe the fee on nearly every H-1B or L-1 extension they file — a change that can meaningfully increase the total immigration cost for affected employers. The rule appears at 91 FR 51360 (August 10, 2026) and takes effect September 9, 2026.
The Bottom Line
Going forward, covered employers must pay the 9-11 Biometric Fee on every H-1B or L-1 extension of status petition — including “same employer, same employee” extensions that don’t involve a change of employer. Previously, DHS only collected the fee when the accompanying fraud prevention and detection fee (Fraud Fee) also applied, which effectively limited it to initial petitions and change-of-employer petitions.
The fee amounts themselves are unchanged:
- $4,000 for H-1B petitions
- $4,500 for L-1 petitions
Who Is a “Covered Employer”?
The fee only applies to employers that:
- Employ 50 or more employees in the United States, and
- Have more than 50 percent of those U.S. employees in H-1B, L-1A, or L-1B nonimmigrant status (counted in the aggregate).
Employers who don’t meet both thresholds are not subject to the fee at all, regardless of this rule change.
How Is “Number of Employees” Actually Calculated? Three Different Tests, Not One
Employers sponsoring H-1B or L-1 workers routinely encounter three different “how many employees do we have” calculations across different fees and statutes. They are easy to conflate, but they are governed by different regulations, use different thresholds, and — critically — treat corporate affiliates differently. It’s worth walking through them side by side.
1. The 9-11 Biometric Fee’s “covered employer” count (8 CFR 106.2(c)(8)-(9))
This is the test that matters for the $4,000/$4,500 fee discussed above. Based on DHS’s own description in both the 2024 NPRM and the 2026 final rule, the count works as follows:
- It looks at “the petitioner’s” employees — i.e., the entity actually filing the H-1B or L-1 petition.
- DHS combines full-time and part-time employees who hold H-1B or L-1 status when calculating the “more than 50 percent” figure. The 2026 final rule adds the words “in the aggregate” to 8 CFR 106.2(c)(8) and (9) specifically to codify this longstanding practice — combining full-time and part-time headcounts, not combining separate corporate entities.
- Notably, neither the regulatory text nor DHS’s rulemaking preambles use the words “affiliate,” “subsidiary,” or “controlled group” anywhere in describing this particular count. On a plain reading of the rule as written, the 50-employee and 50-percent thresholds for the 9-11 Biometric Fee appear to look only at the petitioning legal entity itself — not a broader corporate family — though employers with complex corporate structures should confirm current USCIS practice before relying on that reading, since the agency has not issued detailed sub-regulatory guidance on the point.
What Changed, and Why?
The 9-11 Biometric Fee traces back to a 2010 supplemental fee that Congress replaced and doubled in 2015 via Public Law 114-113. That statute added the phrase “including an application for an extension of such status” to the fee provision — language DHS originally read narrowly, applying the fee only when the Fraud Fee also applied (i.e., new petitions or change-of-employer petitions).
DHS now says that 2016 interpretation was wrong. Citing Loper Bright Enterprises v. Raimondo, the agency argues there is a single “best reading” of the statute, and that Congress’s addition of the extension-of-status language was a substantive expansion — not merely descriptive of what was already covered. Under the new reading the extension-of-status language means the fee is owed even when the Fraud Fee is $0 (i.e., no change of employer).
Then vs. Now: How USCIS’s Own Guidance Has Changed?
A contemporaneous USCIS web alert from January 12, 2016 — issued just weeks after Public Law 114-113 was signed — confirms exactly how narrowly the agency originally read the statute. That notice told petitioners the additional fee applied only to H-1B or L-1 petitions filed:
- Initially, to grant H-1B or L-1 status to a nonimmigrant, or
- To authorize a nonimmigrant already in that status to change employers.
Same-employer extensions were conspicuously absent from that list — a plain, real-time confirmation of the interpretation DHS now says was wrong. The 2016 notice also pegged the fee’s original sunset date at September 30, 2025; Congress later pushed that out to September 30, 2027 via the Bipartisan Budget Act of 2018, which is the date now reflected in the 2026 final rule.
The parallel goes further: just as USCIS revised Form I-129 and Form I-129S back in early 2016 to implement the original fee, the 2026 final rule likewise calls for non-substantive updates to Form I-129 instructions to reflect the newly expanded fee-applicability rules. In other words, employers should expect a similar rollout pattern — revised form instructions and RFE practice — as September 9, 2026 approaches, though DHS has not yet announced whether it will use the same “issue an RFE rather than reject” approach it used in 2016 for petitions that omit the fee.
Amended Petitions Are Still Exempt
The rule preserves — and now expressly codifies — an exemption for amended petitions that don’t request an extension of status. If a covered employer files an amended H-1B or L-1 petition solely to reflect a material change in employment terms (not to extend status), no 9-11 Biometric Fee is owed.
No Retroactivity
DHS confirmed in response to comments that the fee will apply only to petitions filed on or after the rule’s effective date. It will not be applied retroactively to already-pending or previously adjudicated petitions.
What Employers Should Do Now?
- Determine covered-employer status. Confirm whether your organization meets both the 50-employee and 50-percent-in-H-1B/L-1-status thresholds, counted in the aggregate.
- Budget for extensions filed on or after September 9, 2026. Same-employer extension petitions that previously avoided the fee will now require it.
- Distinguish extensions from amendments. Confirm whether a filing is a true amendment (no extension requested) to preserve the exemption, versus an amendment that also requests an extension of status (fee applies).
- Update internal budgeting and immigration case-tracking processes to flag the additional $4,000 (H-1B) or $4,500 (L-1) cost on extension filings for covered employers.
- Watch for a revised Form I-129. DHS indicated it will make non-substantive edits to Form I-129 instructions to reflect the new fee-applicability rules.
Key Takeaway
This rule closes what DHS characterizes as a loophole that let covered employers avoid the 9-11 Biometric Fee indefinitely simply by never changing an H-1B or L-1 employee’s employer. Starting September 9, 2026, covered employers should expect to pay the fee on essentially all H-1B and L-1 extension petitions, not just those involving a change of employer.
Citation: 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas, 91 Fed. Reg. 51360 (Aug. 10, 2026) (to be codified at 8 C.F.R. pt. 106); Docket No. USCBP-2024-0009; CBP Dec. No. 26-11; RIN 1651-AB48.
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