Here is the short version. If more than half your U.S. workforce is in H-1B or L-1 status, you are about to owe $4,000 or $4,500 on extensions that have never carried that fee before — including the ordinary, same-employer, nothing-has-changed extension. DHS filed the final rule on August 7, 2026.
What the 9-11 Biometric Fee is
Congress created it on December 18, 2015, in Division O, section 402(g) of the Consolidated Appropriations Act, 2016, Public Law 114-113 (49 U.S.C. 40101 note). $4,000 for H-1B petitions. $4,500 for L-1.
That was double the earlier supplemental fee — $2,000 and $2,250 — which Congress created in section 402 of Public Law 111-230 back in 2010 and then let expire.
The 9-11 Biometric Fee is not the Form I-129 filing fee. It is also not the $500 Fraud Prevention and Detection Fee, which comes from section 426(a) of the H-1B Visa Reform Act of 2004 and lives at INA 214(c)(12)(A), 8 U.S.C. 1184(c)(12)(A). Hold onto that last one. The entire rule turns on how those two fees relate to each other.
Are you a "covered employer"?
Most employers are not. The fee reaches you only if both things are true at once: 50 or more employees in the United States, and more than 50 percent of them in H-1B, L-1A, or L-1B status.
200 U.S. employees with 40 in H-1B status? Not covered. 60 U.S. employees with 35 in H-1B or L-1 status? Covered.
The rule also drops the phrase "in the aggregate" into both provisions of 8 CFR 106.2, which is DHS writing down what it already does — full-time and part-time employees in H-1B or L-1 status get counted together against the 50 percent line.
What actually changed
DHS used to collect the 9-11 Biometric Fee only where the Fraud Fee applied. In practice: initial grants of H-1B or L-1 status, and change-of-employer petitions. An extension filed by the same employer for the same worker triggered neither fee. That was DHS's reading in the 2016 fee rule, 81 FR 73292, and it held for a decade.
The final rule amends 8 CFR 106.2(c)(8) and (c)(9) to swap "certain petitioners" for "all petitioners." So a covered employer now pays $4,000 on an H-1B petition and $4,500 on an L-1 petition whether it is an initial grant, a change of employer, or a routine extension with the same company.
Initial-grant H-1B and L-1 petitions are unchanged. They always carried the fee and still do.
Why DHS says its old reading was wrong
The 2015 statute made two changes to the older language. Congress added the word "combined" in front of "filing fee and fraud prevention and detection fee," and it added the phrase "including an application for an extension of such status."
DHS read those in 2016 as consistent with what it was already doing. It now says that construction "was not the best one."
The reasoning leans on Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and its premise that a statute always has one best reading. On DHS's account, the extension language is substantive and "combined" is just housekeeping — confirming the increase applies once per petition instead of twice. Where the Fraud Fee does not apply, the "combined" figure is the filing fee plus zero, plus the biometric fee.
There is a practical argument underneath the textual one. Under the old reading, an employer whose workforce is majority H-1B and L-1 could sidestep the fee forever, as long as nobody switched jobs. DHS put a number on it: from fiscal year 2018 through fiscal year 2025, 27 percent of H-1B petitions from covered employers were subject to the 9-11 Biometric Fee. Under this rule, it would have been 75 percent.
Where the money goes, and why DHS says it needs more
Half of what DHS collects goes into the 9-11 Response and Biometric Exit Account, capped at $1 billion. The other half goes to the Treasury's general fund.
The account pays for the biometric entry-exit system Congress has been mandating across a string of statutes, including section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004, 8 U.S.C. 1365b. Concretely, it funds CBP's Traveler Verification Service — the facial comparison system behind biometric entry and exit. DHS published a rule on October 27, 2025, at 90 FR 48604, to fully implement facial recognition at entry and exit.
The Congressional Budget Office thought in December 2015 that the fee would bring in about $420 million a year. It has not come close: $158 million in FY 2016, $118.3 million in FY 2019, $26 million in FY 2023, $25.6 million in FY 2025. DHS blames its own narrow reading rather than the pandemic, and projects this rule adds $37.9 million in FY 2026 and $40.0 million in FY 2027.
DHS has tried this before
None of this is new. DHS proposed the identical interpretation in November 2019 at 84 FR 62280 and adopted it in the August 2020 fee rule at 85 FR 46788.
That rule never took effect. Courts enjoined it in its entirety — Immigrant Legal Resource Center v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020), and Northwest Immigrant Rights Project v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020) — on grounds that had nothing to do with the biometric fee. DHS reverted the regulatory text in 2024 at 89 FR 6194 and said the fee would get its own rulemaking. That rulemaking was proposed June 6, 2024, at 89 FR 48339, drew 146 comments, and this is where it lands.
The one carve-out: amended petitions
The rule adds a clarifying exemption to both provisions. File an amended petition that does not ask for an extension of the worker's current status, and you do not owe the fee.
Amended petitions are the ones you file to tell USCIS about a material change in the terms or conditions of employment, or in the beneficiary's eligibility, from what the approved petition described. Bundle an extension request into that amendment and the fee comes back.
Blanket L filers, nothing changes for you. DHS confirms that individual L-1 petitions on Form I-129S under an approved blanket L are already treated as change-of-employer filings, already carry the Fraud Fee, and were already subject to the biometric fee.
Dates that matter
The rule went on public inspection August 7, 2026, with publication scheduled for August 10, 2026. Effective 30 days after publication — September 9, 2026, if it publishes on schedule.
Read that date carefully, because the rule gives you nothing else. It states the effective date and stops. There is no separate transition provision for petitions you prepared or signed before then. This is exactly the kind of thing that trips people up at the filing-date stage.
The fee also has an expiration. By its own regulatory text it applies to petitions filed on or before September 30, 2027. Congress first set the sunset at September 30, 2025 and pushed it out in section 30203(b) of the Bipartisan Budget Act of 2018, Public Law 115-123. Unless Congress extends it again, covered employers are looking at roughly a year of expanded exposure.
One procedural note: OMB did not call this a significant regulatory action under Executive Order 12866, and determined it is not a "major rule" under the Congressional Review Act, 5 U.S.C. 804(2). That is why it takes effect in 30 days instead of 60.
What this means if you are the employer
A cost you used to pay once at hire is now a cost you pay again and again. H-1B extensions come in three-year increments, and each one now carries $4,000 on top of filing fees, premium processing if you use it, and legal costs. Sponsor a few dozen H-1B and L-1 workers through repeated extension cycles and the math stops being a rounding error.
If you are anywhere near the 50 percent line, know exactly where you stand. One quarter of hiring can push you across it in either direction.
DHS admits it does not know how many small businesses this hits. From a random sample of 399 H-1B and L-1 petitioners it identified 264 small entities, and only 41 of those had more than 50 U.S. employees. That produced an estimated ceiling of about 16 percent of small businesses filing these petitions — a ceiling DHS concedes is probably too high and could be zero. It changed nothing in the rule for small entities.
What this means if you are the worker
The fee is your employer's obligation, not yours.
Commenters pushed hard on who actually absorbs it. Several argued the burden lands hardest on Indian and Chinese nationals, who sit in long employment-based green card backlogs and have to extend H-1B status over and over, and that employers facing the added cost may simply become less willing to file.
DHS's answer was that Congress decided which classifications pay, and the agency cannot change that. It made no changes in response, and treated concerns about hiring, retention, and the green card backlog as outside the scope of this rulemaking.
What to do now
Run the covered-employer test. Count your U.S. employees and the share in H-1B, L-1A, and L-1B status in the aggregate. Close to either prong? Document the calculation at the time of each filing, not after the fact.
Rebuild your extension budget. Model the whole extension calendar through September 30, 2027, not just the filing in front of you.
Check your timing against the effective date. Petitions filed before the rule takes effect follow the current rule. There is no grandfathering past that line.
Keep amendments and extensions straight. A genuine amendment-only filing qualifies for the exemption. Do not staple on an extension request you do not need — and do not drop one you do, because a gap in status is a far worse problem than a fee.
Confirm the fee on every covered filing. Leave it off and you get a rejection or an RFE. A petition rejected close to an expiration date can turn into a gap in authorized stay.
The full text is on the Federal Register public inspection desk. If you sponsor H-1B or L-1 workers and you are not sure whether the covered-employer test catches you, or what it does to filings already sitting on your desk, our attorneys can look at it with you. Contact us to schedule a consultation.
This post is attorney advertising and is provided for general information only. It is not legal advice and does not create an attorney-client relationship. Immigration law changes rapidly; consult a qualified immigration attorney about your specific situation.
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