USCIS recently issued a Policy Memorandum defining “affiliate” and “subsidiary” for purposes of determining the ACWIA fee (American Competitiveness and Workforce Improvement Act of 1998). H-1B petitioners with 25 or less FTE employees in the U.S. pay an ACWIA fee of $750 per H-1B petition while petitioners with 26 or more FTE employees in the U.S. pay $1,500 per H-1B petition.
Under the new policy, USCIS will now count FTE employees of the H-1B petitioning employer AND ITS AFFILIATES AND SUBSIDIARIES for the purpose of determining whether the petitioner has 26 or more FTE employees.
USCIS will not include FTEs employees from the petitioning employer’s parent company or the parent(s) of any affiliates. In other words, USCIS will count down and horizontally, including the petitioning employer’s other affiliates and subsidiaries, but not up toward its parent or its affiliates’ parent(s).
To determine if a petitioner may have employees at affiliates or subsidiaries that should be included in the total number of employees, USCIS may review the relevant evidence submitted by the petitioner, including information provided in the current and previous petitions; statement/attestation from the petitioner; SEC Form 10-K; copies of bylaws or other corporate documents; copies of quarterly corporate tax returns; payroll records, including federal or state quarterly wage statements; IRS annual tax returns including all attachments and schedules; and any other corporate documents.
The ACWIA fee pays for U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering, or science enrichment courses. The ACWIA fee is only required for the initial H-1B petition filed by an employer for a particular beneficiary, and that employer’s first H-1B extension petition for that beneficiary. All subsequent H-1B extension petitions between the same employer and beneficiary do not require it.
Certain employers are exempt from paying the ACWIA fee: primary and secondary education institutions, institutions of higher education and related or affiliated nonprofit entities, nonprofit entities engaged in curriculum-related clinical training, nonprofit research organizations, or governmental research organizations.
Please contact ILG if you have any questions concerning the above.