As Klasko previously reported, President Obama signed into law Public Law 111-230 on August 13, 2010. The law requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

If an employer filed an H-1B or L-1 petition on behalf of an employee that was postmarked on or after August 14, 2010, U.S. Citizenship and Immigration Services (“USCIS”) has started to issue “Requests for Evidence” (or RFEs) to determine if the employer is subject to P.L. 111-230. The RFE requests employers to submit an attestation or other documentation to establish whether or not the petition is subject to the new fee.

If the employer is subject to P.L. 111-230, the employer should return the RFE along with a statement explaining why the employer is subject to the fee and include a check for the relevant amount (either $2,000 or $2,250 depending on the type of nonimmigrant petition). If the employer is not subject to P.L. 111-230, the employer may sign an attestation which states why the employer is not subject to the law. The attestation should be placed on the employer’s letterhead, be signed by the employer, and should state:

“[Name of employer] has [number] employees in the United States, of whom fewer than [insert number] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

Employers should be careful to include only the number of employees in the United States and not the world-wide number of employees in the calculation. This number may differ from the “number of employees” question asked on Form I-129, which may include a world-wide employee figure.

For H-1B and L-1 petitions filed on or after August 14, 2010, Klasko recommends that employers create an addendum to the Form I-129 Data Collection Supplement, which explains why the employer is not subject to P.L. 111-230. USCIS also has indicated that employers should note on the H-1B cover letter whether or not the petition is subject to P.L. 111-230.  For more information, contact your Klasko Law attorney.