9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas

DEPARTMENT OF HOMELAND SECURITY <SUBAGY>U.S. Customs and Border Protection</SUBAGY> <CFR>8 CFR Part 106</CFR> <DEPDOC>[Docket No. USCBP-2024-0009]</DEPDOC> <RIN>RIN 1651-AB48</RIN> <SUBJECT>9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Customs and Border Protection, Department of Homeland Security. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Homeland Security (DHS) proposes to amend and clarify the regulations concerning the 9-11 Response & Biometric Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee). The proposed regulatory changes would clarify DHS's interpretation of ambiguous statutory language to require that covered employers submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status. The proposed changes will also help DHS comply with its congressional mandate to implement a biometric entry-exit data system. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by July 8, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Please submit comments, identified by docket number, by the following method: • <E T="03">Federal eRulemaking Portal: http://www.regulations.gov.</E> Follow the instructions for submitting comments via docket number USCBP-2023-XXXX. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to <E T="03">http://www.regulations.gov,</E> including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document. <E T="03">Docket:</E> For access to the docket to read background documents or comments received, go to <E T="03">http://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Larry Panetta, Office of Field Operations, U.S. Customs and Border Protection, by phone at 202-344-1253 or email at <E T="03">LARRY.A.PANETTA@CBP.DHS.GOV</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the notice of proposed rulemaking. The Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) also invite comments that relate to the economic, environmental, or federalism effects that might result from this proposal. Comments that will provide the most assistance to DHS and CBP in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments should be submitted through the Federal eRulemaking Portal. <HD SOURCE="HD1">II. Background</HD> <HD SOURCE="HD2">A. Statutory Authorization and History</HD> <HD SOURCE="HD3">1. Initial Supplemental H-1B and L-1 Fee</HD> H-1B and L-1 classifications are temporary nonimmigrant worker classifications. H-1B and L-1 classifications are authorized under sections 101(a)(15)(H)(i)(b) and (L), respectively, of the Immigration and Nationality Act (INA), as amended (8 U.S.C. 1101(a)(15)(H)(i)(b), (L)). H-1B status is a nonimmigrant classification for noncitizens who work in certain specialty services or occupations. L-1 status allows companies to seek a temporary intracompany transfer of certain noncitizen employees who perform executive or managerial functions or have specialized knowledge. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  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, <E T="03">https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations.</E> For more information on L-1 nonimmigrant classification, see USCIS, L-1A Intracompany Transferee Executive or Manager, <E T="03">https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager;</E> and USCIS, L-1B Intracompany Transferee Specialized Knowledge, <E T="03">https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge.</E> </FTNT> In 2010, Congress established a supplemental fee for certain employers petitioning for beneficiaries to obtain H-1B or L-1 status (2010 Supplemental Fee). <E T="03">See</E> section 402 of the Act of August 13, 2010, Public Law 111-230, 124 Stat. 2485, 2487 (Pub. L. 111-230) (8 U.S.C. 1101 note). The 2010 Supplemental Fee applied to employers that employ 50 or more employees in the United States with more than 50 percent of the employees in the United States in H-1B or L-1 nonimmigrant status (covered employers). Sec. 402, Public Law 111-230. The statute required covered employers to pay an increase to “the filing fee and fraud prevention and detection fee” in the amount of $2,000 or $2,250 for H-1B or L-1 petitions, respectively. Sec. 402, Public Law 111-230. The statutory language in Public Law 111-230 required covered employers to pay the 2010 Supplemental Fee at the time that a fraud detection and prevention fee (Fraud Fee) is collected. Sec. 402, Public Law 111-230. The $500 Fraud Fee is established under separate statutory authority. <E T="03">See</E> sec. 426(a) of the H-1B Visa Reform Act of 2004, Public Law 108-447, 118 Stat. 2809, 3357 (the 2004 H-1B Visa Reform Act) (8 U.S.C. 1184(c)(12)(A), section 214(c)(12)(A) of the INA). Pursuant to section 426(b) of the 2004 H-1B Visa Reform Act, the Department of State, in collaboration with DHS and the Department of Labor, uses Fraud Fee collections to combat fraud in immigration processes. 8 U.S.C. 1356(v)(2), section 286(v)(2) of the INA. With limited exceptions, the statute requires employers to pay the Fraud Fee when petitioning for an initial grant of H-1B or L-1 nonimmigrant status or for change of employer petitions for beneficiaries already in H-1B or L-1 status. <E T="03">See</E> sec. 426(a) of the 2004 H-1B Visa Reform Act. Although Public Law 111-230 could reasonably be considered as ambiguous because, among other things, it was not clear whether the increased fee applied once per covered petition or twice, that is, as an increase to the petition fee and separately as an increase to the Fraud Fee, DHS interpreted the 2010 Supplemental Fee to apply only once per covered petition and only when the Fraud Fee applied. Accordingly, DHS implemented regulations applying the 2010 Supplemental Fee to petitions subject to the Fraud Fee seeking initial grants of H-1B or L-1 status and change of employer petitions for beneficiaries already in H-1B or L-1 status, consistent with applicability of the Fraud Fee. <E T="03">See</E> 76 FR 53764, 53768, 53781. The 2010 Supplemental Fee sunset on September 30, 2015, after an extension by Congress. <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>   <E T="03">See</E> 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). </FTNT> <HD SOURCE="HD3">2. 9-11 Response and Biometric Entry-Exit Fee</HD> On December 18, 2015, Congress established the “9-11 Response and Biometric Entry-Exit Fee” for certain H-1B and L-1 petitions (9-11 Biometric Fee). <E T="03">See</E> Consolidated Appropriations Act, 2016, Div. O, sec. 402(g), Public Law 114-113, 129 Stat. 2242, 3006 (Pub. L. 114-113) (49 U.S.C. 40101 note). <SU>3</SU> <FTREF/> Public Law 114-113 instated the 9-11 Biometric Fee after the 2010 Supplemental Fee expired. The amount of the 2010 Supplemental Fee was doubled for the 9-11 Biometric Fee to be $4,000 and $4,500 for H-1B and L-1 petitions, respectively. <E T="03">Id.</E> 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. <E T="03">Id.</E> DHS may use the funds available in the 9-11 Biometric Account to implement the biometric entry and exit data system required by section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638, 3817 (IRTPA), (8 U.S.C. 1365b). Sec. 402(g), Public Law 114-113. Section 7208 of the IRTPA (8 U.S.C. 1365b), adopting recommendations by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission), requires DHS to implement a biometric entry-exit system that uses biometric data to confirm the identity of travelers entering and exiting the United States. As the DHS component responsible for controlling the border and monitoring the arrival and departure of U.S. citizens and noncitizens, CBP implements biometric operations in the land, sea, and air environments. <SU>4</SU> <FTREF/> Pursuant to congressional extension, the 9-11 Biometric Fee is currently set to expire on September 30, 2027. <SU>5</SU> <FTREF/> <FTNT> <SU>3</SU>  The 9-11 Biometric Fee is a fee related to petitions for H-1B and L-1 classification an ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 66k characters. 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