USCIS Final Rule Regarding Fee Increases

USCIS has issued a final rule as of January 31st regarding fee increases to H-2A, H-2B, and immigrant visa applications. These new fees have gone into effect on April 1st, 2024.

*Updated FAQs regarding the final rule*

USCIS has conducted a comprehensive review for the FY22/23 and determined that current fees do not recover the full costs of services provided. DHS has determined that adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. 

Fee Changes

We have included a breakdown below of what the new fees will look like when filing the Form I-129 petition for H-2A and H-2B employers.

DHS is categorizing their fees based on named and unnamed petitions as well as by size of the filing company. A small employer is defined as an employer who has 25 or fewer full-time equivalent employees, and any company larger than that will be considered a “large” employer.

Premium Processing for I-129 petitions for H-2B employees will also increase from $1,500 to $1,685 which goes into effect on February 26th.

Limitations for named petitions

USCIS is now implementing a capped number of how many named employees can be requested on a single, named petition. This would include transfers, extensions, or any case where we would have to name the employees coming into the country. 

Named petitions will only be accepted in increments of 25 workers. Any petition requesting more than 25 workers will have to file multiple petitions with the applicable fees included for each. 

FAQs regarding fees based on company size and how to calculate the number of full time employees

Q. What is a “full-time equivalent employee” in determining whether a petitioner qualifies for the small-employer discounts to the Form I-129 fee and Asylum Program Fee?

A. Generally, the number of full-time equivalent employees equals the number of full-time employees plus the number of part-time employees aggregated to full-time equivalents at the time of filing. The IRS defines an employee as an individual who receives “wages,” with applicable taxes deducted, along with Social Security and unemployment deductions, and who receives a W-2 reporting their income.

Q. Do noncitizen workers count toward the number of full-time equivalent employees?

A. You should count all current workers you employ at the time of filing, regardless of immigration status.

Q. Do the beneficiaries on the petition count as full-time equivalent employees?

A. The beneficiary of a petition does not count as an employee unless they are currently working for the petitioner as an employee at the time of filing.

Q. Should a petitioner count only those full-time equivalent employees listed under the petitioner’s Federal Employer Identification Number (FEIN)? What about employees listed under affiliated FEINs (for example, affiliated offices in different regions)?

A. Petitioners should include all of the petitioner’s full-time equivalent employees in the United States, including its affiliates and subsidiaries. The petitioner should not, however, include additional employees from the petitioning employer’s parent company or the parents of any affiliates. In other words, in an organizational chart that begins with the petitioner, count down and horizontally, including the petitioning employer’s affiliates and subsidiaries, but do not count upward toward the petitioner’s parent or its affiliates’ parents.

Q. What proof is needed to show the number of full-time equivalent employees?

A. The instructions for Forms I-129 and I-140 state that possible evidence includes a copy of the petitioner’s most recent IRS Form 941, Employer’s Quarterly Federal Return; or IRS Form 943, Employer’ Annual Tax Return for Agricultural Workers. However, petitioners may submit any relevant evidence that shows the number of full-time equivalent employees by a preponderance of the evidence.

Q. What additional information or evidence should a petitioner submit if they employ fewer full-time equivalent employees than the number of employees listed on IRS Form 941 or 943?

A. Petitioning employers may submit any relevant evidence to show their actual number of full-time equivalent employees, and must establish that number by a preponderance of the evidence. The petitioning employer should explain why the actual number of full-time equivalent employees differs from the number on their Form 941 or Form 943.

Q. For H-2A petitions filed by a U.S. agricultural producer association that is named as a joint employer on the temporary labor certification, would each joint employer have to submit evidence of their number of full-time equivalent employees with the Form I-129? Or just the association?

A. The fee reduction for small employers is based on the number of full-time equivalent employees of the petitioning employer. This employee count does not involve joint employers listed on the temporary labor certification unless they are affiliates or subsidiaries of the petitioner.

Q. Will petitioning employers that use a professional employer organization (PEO) still be subject to the full Asylum Program Fee even if the petitioning company has 25 or fewer employees?

A. Petitioning employers who outsource certain functions through a PEO should not count the PEO’s full-time equivalent employees in determining whether the petitioner qualifies as a small employer. However, in the absence of a Form 941, the petitioner must submit alternate documentation to confirm how many full-time equivalent employees they currently employ.

Q. How can I make sure that my filing is not rejected at intake for incorrect fees?

A. At intake, we determine whether the payment you submitted matches the correct fees due. If you do not submit the correct fee, we must reject your form, even if you have submitted an overpayment.

If you are submitting one of the following forms, the required fees depend on how you answer the form’s questions about your status as a nonprofit or small employer.

Part 1, Question 6 asks “Are you a nonprofit organized as tax exempt or a governmental research organization?” If you answer “Yes,” then you must submit the proper payment for a nonprofit, and not for a small employer.

Part 5, Question 15 asks “Do you currently employ a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or subsidiaries of this company/organization?” If you answer “Yes,” then you must submit the proper payment for a small employer (unless you checked “Yes” in Part 1, Question 6 for nonprofits, as described above).

In addition, Part 5, Question 14 asks for your “Current Number of Employees in the United States.” If you check “Yes” to Part 5, Question 15, and you answer Question 14 with a number greater than 25, then your supporting documentation should demonstrate how you calculated the number of full-time equivalent employees as 25 or fewer. If we cannot determine the number of full-time equivalent employees, we may reject your petition.