The Department of Homeland Security (DHS) has expanded the scope of the 9-11 Response and Biometric Entry-Exit Fee for certain H-1B and L-1 petitions.
Under the final rule published at 91 Federal Register 51360, the fee will apply to all covered-employer extension-of-stay petitions, including extensions filed by the same employer for the same employee. The rule becomes effective on September 9, 2026.
This change affects employers that rely heavily on H-1B, L-1A, and L-1B workers. Human resources departments, global mobility teams, and immigration counsel should review upcoming filings before the effective date.
What the DHS Final Rule Changes
The 9-11 Biometric Fee is not a new fee. Congress established it to support biometric entry and exit systems. The fee amounts remain:
- $4,000 for H-1B petitions
- $4,500 for L-1 petitions
The significant change concerns which petitions require payment.
Before this rule, the fee generally applied to:
- Petitions requesting an initial grant of H-1B or L-1 status.
- Petitions requesting a change of employer for an employee already in H-1B or L-1 status.
The fee generally did not apply when the same employer filed a routine extension for the same employee.
Beginning September 9, 2026, a covered employer must generally pay the applicable fee for all H-1B and L-1 extension-of-stay petitions. This includes an extension in which:
- The employee remains with the same employer.
- The employee continues in the same nonimmigrant classification.
- The petition does not involve a change of employer.
The rule amends 8 C.F.R. § 106.2(c)(8) and (9) to reflect this broader application.
Which Employers Are Covered?
The fee applies only to a “covered employer.” An employer is covered when both of the following conditions apply:
- The employer employs 50 or more employees in the United States.
- More than 50 percent of the employer’s U.S. workforce, counted in the aggregate, holds H-1B, L-1A, or L-1B nonimmigrant status.
The calculation combines H-1B, L-1A, and L-1B employees. Employers do not evaluate each classification separately for purposes of the 50-percent threshold.
Example
An employer has 80 employees in the United States:
- 30 H-1B employees
- 15 L-1A employees
- 5 L-1B employees
- 30 employees in other classifications
The employer has 50 employees in the covered classifications. Because 50 of 80 employees are in H-1B or L-1 status, the employer exceeds the 50-percent threshold and is a covered employer.
An employer that has 50 or more U.S. employees but does not exceed the 50-percent threshold is not subject to this fee based on the rule’s covered-employer definition.
Employers should document the calculation used to determine covered-employer status. Workforce composition may change because of hiring, termination, transfers, status changes, and organizational restructuring.
Which Petitions Require the Fee?
For a covered employer, the fee generally applies to the following petitions:
- H-1B petitions requesting an initial grant of status.
- L-1 petitions requesting an initial grant of status.
- H-1B change-of-employer petitions.
- L-1 change-of-employer petitions.
- H-1B extension-of-stay petitions.
- L-1 extension-of-stay petitions.
- Same-employer extensions for employees who remain in valid H-1B or L-1 status.
The fee continues to apply to petitions that involve an extension and a change of employer. The new rule adds same-employer extensions to the categories subject to payment.
Amended Petitions Without an Extension Request
An amended petition that does not seek an extension of the employee’s currently authorized H-1B or L-1 status is exempt from the 9-11 Biometric Fee.
Employers should distinguish between:
- An amended petition that reports a material change but does not request additional time in H-1B or L-1 status; and
- An amended petition that also requests an extension of the employee’s authorized status.
The first category is exempt under the amended regulation. The second category generally requires payment if the petitioner is a covered employer.
This distinction requires careful review of the purpose of the Form I-129 filing. Misclassifying the petition may result in a rejected or delayed filing.
Effective Date and Sunset Date
The final rule is effective on September 9, 2026. DHS has stated that the expanded fee requirement applies to relevant petitions filed on or after the effective date. It does not apply retroactively to petitions filed before that date, including petitions that were already pending before implementation.
The fee provisions apply to petitions filed on or before September 30, 2027, which is the current statutory sunset date.
Employers should not assume that an extension prepared before September 9 will avoid the fee. The filing date is material. Internal approval, document collection, or preparation of the petition does not replace the filing date for purposes of determining whether the expanded fee applies.
Who Pays the Fee?
The petitioning employer is responsible for paying the 9-11 Biometric Fee. The employee does not pay the fee directly.
For H-1B workers, employers must also account for wage and fee restrictions under federal law. H-1B employers are generally prohibited from recouping required petition-related filing fees by reducing the worker’s wages or compensation package. Employers must continue to comply with the required wage obligations, including payment of the greater of the applicable prevailing wage or the employer’s actual wage for similarly qualified workers.
Employers should obtain legal advice before attempting to allocate any immigration-related cost to an employee. A cost-allocation policy that conflicts with H-1B wage requirements may create additional compliance exposure.
Financial Impact for Covered Employers
The expanded fee may materially increase the cost of maintaining an existing foreign-national workforce.
For example:
- Five H-1B extensions may add $20,000 in 9-11 Biometric Fees.
- Five L-1 extensions may add $22,500.
- A combination of five H-1B and five L-1 extensions may add $42,500.
These amounts are separate from other required filing fees, legal fees, premium processing fees, and costs associated with supporting documentation.
DHS estimates that the rule will increase transfer payments from H-1B and L-1 petitioners by approximately:
- $37.9 million in fiscal year 2026
- $40.0 million in fiscal year 2027
DHS attributes the increase primarily to extending the fee to same-employer extension petitions.
Required Compliance Steps for Employers
Employers should begin preparing for the effective date. The following steps are appropriate for HR, legal, finance, and global mobility teams.
1. Determine Whether the Employer Meets the Threshold
Calculate:
- The total number of U.S. employees.
- The number of employees in H-1B, L-1A, and L-1B status.
- The percentage represented by those classifications in the aggregate.
Retain the data and methodology used for the calculation. The analysis should be updated when the employer’s workforce changes.
2. Audit Upcoming Extension Filings
Review all H-1B and L-1 matters scheduled for filing on or after September 9, 2026. Include:
- Same-employer H-1B extensions.
- Same-employer L-1A extensions.
- Same-employer L-1B extensions.
- Change-of-employer petitions.
- Amended petitions that also request an extension of status.
Employers should identify which cases require the $4,000 or $4,500 fee before the filing package is finalized.
3. Update Budgets and Approval Procedures
Finance and procurement teams should update immigration budgets to account for the additional cost. Internal approval forms should separately identify:
- Standard government filing fees.
- The 9-11 Biometric Fee.
- Premium processing fees.
- Legal fees and other case expenses.
A fee omitted from the filing package may result in rejection or delay.
4. Coordinate With Immigration Counsel
The covered-employer analysis and petition classification should be reviewed with an experienced business immigration attorney. Counsel can evaluate whether the petition seeks an extension of status and whether an amended filing qualifies for the exemption.
The analysis is particularly important for employers with complex corporate structures, shared services organizations, staffing arrangements, or frequent transfers between related entities.
5. Review Workforce Compliance Policies
The fee expansion does not replace existing obligations. Employers must continue to comply with:
- Form I-9 requirements.
- H-1B Labor Condition Application obligations.
- Required wage rules.
- Material-change filing requirements.
- L-1 qualifying-relationship and “doing business” requirements.
- Petition documentation and recordkeeping standards.
A review of workforce compliance and internal I-9 procedures can help identify broader risks before a government review.
How Blasingame Law LLC Can Assist
The September 9, 2026 effective date creates an immediate planning issue for employers filing H-1B and L-1 petitions. Covered employers must evaluate workforce composition, identify affected extensions, and include the correct fee with each filing.
Blasingame Law LLC provides business immigration solutions for employers hiring, retaining, and transferring foreign employees. The firm assists with H-1B petitions, the L-1 visa and intracompany transfer visa, HR immigration procedures, and workforce compliance matters.
Employers should consult an experienced immigration lawyer before filing any H-1B or L-1 extension after September 9, 2026. Contact Blasingame Law LLC or schedule a consultation to assess whether your organization meets the covered-employer threshold and to plan upcoming extension filings.
