Introduction
The Department of Homeland Security has issued a final rule expanding when covered employers must pay the 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 visa extension petitions. Published by U.S. Customs and Border Protection on August 10, 2026, and effective September 9, 2026, the rule corrects DHS’s longstanding interpretation of the statutory language governing this fee — requiring that certain large employers now pay the $4,000 H-1B or $4,500 L-1 biometric fee on all extension of status petitions, including those filed by the same employer on behalf of the same employee. For HR departments, immigration counsel, and employers who regularly extend their H-1B and L-1 workforce, this is a meaningful and immediate cost change that demands close attention.
Background
The History Behind the 9-11 Biometric Fee
Congress first created a supplemental fee targeting large H-1B and L-1 employers in 2010 — a measure aimed at funding the federally mandated biometric entry-exit system intended to verify the identity of travelers entering and leaving the United States. That fee applied to employers meeting a specific workforce threshold and was tied to filings where the fraud prevention and detection fee also applied, meaning it covered new employment petitions and change-of-employer situations but not routine same-employer extensions.
When the 2010 fee expired, Congress replaced it in December 2015 with the 9-11 Biometric Fee — doubling the amount and, importantly, adding new statutory language specifying that the fee applied to petitions “including an application for an extension of such status.” DHS initially interpreted that phrase consistently with its earlier practice, limiting the fee to petitions where the fraud prevention fee also triggered. That interpretation was confirmed in a 2016 rulemaking. DHS later reconsidered and adopted a broader interpretation in a 2020 rulemaking, but that entire rule was enjoined by federal courts during unrelated litigation before it could take effect. This final rule now carries out what the 2020 rule originally intended.
What Is Changing
The Expanded Scope of the 9-11 Biometric Fee
Under the revised regulations at 8 CFR 106.2(c)(8) and (9), the 9-11 Biometric Fee now applies to all H-1B and L-1 extension of status petitions filed by covered employers — not just those involving a new employer or a change of employer. The fee amounts remain unchanged: $4,000 per H-1B petition and $4,500 per L-1 petition.
DHS’s stated rationale is that the best reading of the statutory language in the Consolidated Appropriations Act of 2016 requires this broader application, invoking the Supreme Court’s holding in Loper Bright Enterprises v. Raimondo as authority for courts and agencies to identify the single best interpretation of a statute rather than defaulting to prior agency readings. DHS also points to a significant funding gap: actual annual fee collections have fallen well below Congressional Budget Office projections every year since the fee’s inception, and without additional revenue, CBP cannot maintain or expand its Traveler Verification Service and broader biometric entry-exit infrastructure.
One important exemption is explicitly preserved: amended petitions that do not include an extension of status request remain exempt from the fee. Employers filing an amended I-129 solely to report a material change in terms or conditions of employment — without also extending the employee’s status — will not owe the fee under this rule.
Who Is Affected
Covered Employers and Their H-1B and L-1 Workforces
The fee applies only to covered employers, which the statute defines as those that employ 50 or more total employees in the United States and have more than 50 percent of their U.S. employees in H-1B, L-1A, or L-1B nonimmigrant status in the aggregate. Employers below either threshold — including those with fewer than 50 U.S. employees — are not subject to the fee under any circumstances and are entirely unaffected by this change.
The practical burden falls most heavily on large staffing companies, IT outsourcing firms, and consulting organizations that rely substantially on H-1B and L-1 workers. DHS data indicates that between fiscal years 2018 and 2025, only 27 percent of H-1B petitions from covered employers were subject to the fee under the prior interpretation; under this rule, that figure would have been approximately 75 percent during that same period. DHS projects the rule will generate roughly $37.9 million in additional transfer payments in fiscal year 2026 and $40 million in fiscal year 2027.
H-1B and L-1 workers themselves are not legally required to pay the fee — it is an employer obligation by statute. However, petitioners in extension posture who work for covered employers should understand that this fee now applies to their renewals regardless of whether they have changed jobs.
Employers who are not covered — those whose H-1B and L-1 workforce does not exceed 50 percent of total U.S. headcount — are not affected by this rule. DHS estimates a maximum of approximately 16 percent of small businesses that file H-1B or L-1 petitions meet the covered employer threshold.
Practical Implications
What This Means for Filing Strategy and Compliance
The most immediate impact is cost. Covered employers who previously paid the 9-11 Biometric Fee only on new hire or change-of-employer petitions must now budget for the fee on every H-1B and L-1 extension filing. For companies managing large nonimmigrant workforces on rolling three-year extensions, this represents a material increase in annual petition costs.
HR and immigration compliance teams at covered employers should audit their current workforce composition now to confirm whether the 50-employee and 50-percent thresholds are met. The covered employer determination is made at the petition level, so companies near the threshold should monitor headcount carefully, particularly as overall workforce composition changes over time.
The rule does not apply retroactively to petitions already filed or pending before September 9, 2026. Petitions received before that date are governed by the prior regulations, regardless of when a decision is issued.
Employers filing amended petitions that do not include an extension request continue to be exempt. This exemption is now written explicitly into the regulatory text, which provides clarity for HR departments evaluating whether a given filing triggers the fee.
The rule is currently set to expire along with the underlying statutory fee authorization on September 30, 2027. Whether Congress extends the 9-11 Biometric Fee beyond that date remains a separate legislative question.
What to Watch For Next
Upcoming Dates and Potential Developments
The rule takes effect September 9, 2026, and applies to all covered petitions filed on or after that date through September 30, 2027, absent further legislative extension. Employers and their counsel should ensure that pending extension filings are reviewed before that date and that post-effective-date filings include the appropriate fee.
USCIS is expected to update Form I-129 instructions to reflect which petitions are subject to the fee under the amended regulations; those instructional updates are currently under review through the Paperwork Reduction Act process. Stakeholders should monitor USCIS’s H and L fee guidance page for confirmation that updated instructions are in effect before submitting post-September 9 filings.
Congressional action to extend or modify the underlying 9-11 Biometric Fee authorization beyond its September 30, 2027 sunset is anticipated to be a topic of interest as that date approaches, and further rulemaking may follow if the fee is extended.
How Immigration Professional Association Can Help
For covered employers managing active H-1B and L-1 workforces, the September 9 effective date leaves limited time to assess the full cost impact and update internal petition workflows. Immigration Professional Association works directly with employers — from technology companies and healthcare systems to staffing organizations — on precisely this kind of compliance planning.
Our team can help your organization determine whether you meet the covered employer threshold under the new regulatory language, identify which pending and upcoming extension filings will be subject to the $4,000 or $4,500 fee, and ensure that Form I-129 petitions submitted after the effective date are properly prepared with all required fees included. We also advise employers on broader H-1B and L-1 compliance strategy, including how workforce composition changes can affect covered employer status over time.
If your company regularly extends H-1B or L-1 employees and you are uncertain whether the 9-11 Biometric Fee now applies to your filings, we encourage you to reach out to Immigration Professional Association before September 9. Getting the fee determination wrong in either direction — submitting without a required fee or overpaying — creates delays and complications that are worth avoiding from the start.
