I’m an Employer and I hear there’s a new fee rule. Which USCIS fees apply to me?

 

On January 31, 2024, USCIS published a fee rule, increasing the fees on most applications, adding an Asylum Program fee for certain applications, and creating a fee structure for certain employment-based applications, based on the type of organization or the size of the organization.

These new fees took effect on April 1, 2024, and can be confusing to understand. This blog will break down some of the FAQs on the new fees to help employers understand what the fee is and how to determine what to pay.

 

_{1. Asylum Program Fee}

The asylum program fee is new to the USCIS fee structure. It will be paid by employers who file a Form I-129, Petition for a Nonimmigrant Worker (such as your H-1B, L-1. E-1, O-1, etc), Form I-129CW, Petition for a CNMI-only Nonimmigrant Transitional Worker, and Form I-140, Immigrant Petition for Alien Worker (part of the Lawful Permanent Residency process).

This fee helps fund the asylum program. The asylum program adjudicates asylum applications for those individuals who file affirmatively with USCIS because they have a well-founded fear of persecution by the government on account of race, national origin, political opinion, religion, or membership in a particular social group.

The asylum program fee is $600 unless you are a non-profit or a small employer. The asylum program fee must be paid each time one of the above forms is filed, regardless of whether it’s a new petition, extension, or change of employer. The fee applies to self-petitioners and beneficiary-owners as well.

If the employer is a non-profit, the asylum program fee is $0.

NOTE: to qualify as a non-profit, you must have an IRS 501(c)(3) designation and tax-filing status to qualify for the non-profit discount, or meet one of the following definitions as commonly used in the H-1B process:

• A governmental research organization (as defined under 8 CFR 214.2(h)(19)(iii)(C));
• A not-for-profit primary or secondary educational institution; or
• A not-for-profit institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a))

If you are a small employer, defined as 25 or fewer full-time equivalent employees, then you pay $300.

The next section will discuss more how to calculate whether you qualify as a small employer.

 

2. Small Employers and Calculating Full-Time Equivalent (FTE) Employees

As mentioned above, if you are a small employer, the Asylum Program fee is $300. In addition, Small Employers pay a 50% reduced filing fee for the I-129 and I-129CW. This reduction does NOT apply to the I-140.

Per USCIS, the number of FTE 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. For example, if you have 5 full-time employees, and 10 part-time employees who are 0.5 each, then you would be considered to have 10 FTE employees. (5 FT + (10 x 0.5 PT) = 10).

USCIS adopts the IRS definition of employees, which are those individuals who receive wages, with taxes and social security deducted, and W-2s. It does not include your 1099 workers.

NOTE: This doesn’t mean you should now pay everyone as a contract employee and a 1099 because then you may be in violation of your state law regarding who qualifies as an employee and who qualifies as an independent contractor!

In determining whether you are a small employer, the calculation is done at the date of filing. This means that if you have seasonal workers who are paid wages on the day you file, they will need to be part of the calculation for FTE employees. You should count all seasonal workers you employ at the time of filing. 

Also included in the calculation for FTE are any organizations that are horizontal affiliates and subsidiaries, even if they operate under a different FEIN. Per USCIS’s FAQs, “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.”  

 

3. Documentation to show Non-Profit and FTE

If trying to qualify as a non-profit, the organization can send their IRS 501(c)(3) designation letter, valid IRS tax exemption certificate, or other relevant evidence such as the organization’s 990 tax filing showing filing as a 501(c)(3).

If trying to qualify as a Small Employer, organizations can submit their most recent IRS Form 941, Employer’s Quarterly Federal Return; or IRS Form 943, Employer’ Annual Tax Return for Agricultural Workers.

They may also submit any other relevant evidence that shows the number of full-time equivalent employees by a preponderance of the evidence. 

NOTE: The IRS Form 941 should be redacted as it contains private information about individuals not related to the immigration case so long as it’s not otherwise related to the adjudication of the application.  

If at the time of filing, employers have less workers than reported on the IRS Form 941, they will need to submit relevant evidence showing that reduction and explain why there are less workers than reported on the Form 941.

As mentioned above, self-petitioners (such as in the EB-1 context or EB-2 NIW) and beneficiary-owners (like in an E-2) are also required to pay the fees.

For self-petitioners, the asylum program fee is $300.00.

For beneficiary-owners, the asylum program fee and the I-129/I-129CW fee is based on whether they are a non-profit or the size of the organization. Unless a nonprofit, the beneficiary should go through the same FTE calculations laid out above.

Don’t risk having your applications rejected because of miscalculating the fees.

Please reach out to Kolko & Casey, P.C. for assistance with your employment-based applications!