On August 9, 2017, the United States Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum on the definitions of “affiliate” and “subsidiary” in the H1B ACWIA fee context. The Memorandum is titled Definition of 'Affiliate' or “Subsidiary' for Purposes of Determining the H-1B ACWIA Fee” [see PM-602-0147].
The issue is significant because an H1B petitioner that has 26 or more full-time equivalent employees is subject to a $1,500 fee per H1B beneficiary. However, an employee with 25 or fewer such employees based in the United States is subject only to a $750 fee per H1B beneficiary. In counting the fee, employees of the petitioner's affiliates and subsidiaries must be counted, provided that such employees are not working for affiliates and subsidiaries abroad. While the procedures for counting full-time equivalent U.S. employees are well established in U.S. Department of Labor (DOL) regulations, the terms “affiliate” and “subsidiary” have not been similarly developed in the H1B ACWIA fee context.
Ultimately, the USCIS decided to apply existing definitions of “affiliate” and “subsidiary” purposed for L1 intracompany transferee petitions to the H1B ACWIA fee context. To learn more about the USCIS's reasoning and the effect of this policy, please read our full article on the subject [see article].