DHS Moves to Boost Biometric Border Funding with Proposed Rule Change

The Department of Homeland Security (DHS) is proposing changes to the rules about a special fee, called the 9-11 Biometric Fee, which applies to large companies with many H-1B or L-1 visa employees. The proposed changes clarify that companies must pay the fee even when extending an employee’s stay, not just for new hires or when employees switch employers.

The fee, which is $4,000 for H-1B visas and $4,500 for L-1 visas, applies to companies with 50 or more employees if more than half are on these visas. It is a special charge imposed on certain employers to help fund the implementation and maintenance of a biometric entry-exit data system by the Department of Homeland Security.

The system is designed to enhance national security by tracking the entry and exit of non-U.S. citizens using biometric data, such as fingerprints and facial recognition, to verify identities. The fee is intended to ensure that DHS can meet its congressional mandate to use biometric technology to improve the security and accuracy of immigration and border control processes.

The proposal to amend fee collection rules arrives shortly after the head of the Transportation Security Administration, David Pekoskoe, testified to the House Homeland Security Subcommittee on Transportation and Maritime Security that his agency would not be able to fully implement biometric border screening technology across all US airports until 2049, unless funding is increased.

Pekoske specifically flagged the Bipartisan Budget Act of 2013, which diverted funds collected through a separate “September 11 Security Fee” charged to travelers. Originally, this fee was meant to support the TSA’s biometric border screening efforts, but the 2013 legislation diverted some of the funding to deficit reduction.

Now, by requiring employers to pay the 9-11 Biometric Fee for all extension-of-stay petitions, not just for initial grants of status or changes of employer, the Department of Homeland Security will collect more fees overall. Since large companies with many H-1B or L-1 visa employees will need to pay this fee more frequently, it should result in additional revenue that can be used to support the biometric entry-exit data system and other related initiatives.

Public comments on these changes are due by July 8, and the final decision will be made after considering any such input.

Source: Berry Appleman & Leiden LLP

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June 7, 2024 – by Cass Kennedy and Alex Perala