On Aug. 28, 2017, USCIS released a policy memorandum that clarified the definition of “affiliate” and “subsidiary” for purposes of determining the H-1B ACWIA fee.  The H-1B ACWIA fee is $1500 for H-1B petitioners who have 26 or more full-time equivalent (FTE) employees, and half that amount ($750) for H-1B petitioners who have 25 or fewer FTE.  The FTE count includes those FTE employees employed by any affiliate or subsidiary of the H-1B employer.  The fee is mandatory for all new H-1B petitions, and then required again for the first extension.  Employers exempt from this fee include primary and secondary education institutions, institutions of higher education, and certain nonprofit entities.  This fee pays for U.S. citizens, lawful permanent residents, and other U.S. workers to attend job training and receive low-income scholarships or grants for math, engineering, or science enrichment courses administered by the National Science Foundation and the Department of Labor.

For purposes of clarification, the USCIS policy memorandum utilizes the definition of “affiliate” and “subsidiary” taken from the L-1 nonimmigrant regulations located at 8 CFR 214.2(l)(1)(ii).  An “affiliate” is clarified as: (1) “one of two subsidiaries both of which are owned and controlled by the same parent or individual” or (2) “one of two legal entities owned and controlled by the same group of individuals, each owning and controlling approximately the same share or proportion of each entity.”  The term “subsidiary” is also clarified to be the same as defined in the L-1 nonimmigrant context, where it is “a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.”  8 CFR 214.2(l)(1)(ii).

The calculation is to be done by the adjudicating officer, who may use evidence including information in the petition, previous petitions, Form 10k, copies of corporate tax returns, or any public records.  Adjudicators are now tasked with implementing this and verifying that the calculations are correct so that the correct fee is submitted.

Greenberg Traurig will continue to monitor any developments related to the H-1B process.  For updates, please subscribe to our blog.