Can a company ask an employee to pay for the costs for the company to sponsor the employee for an H-1B visa?

QUESTION:

Can a company ask an employee to pay for the attorney fees and filing fees for the company to sponsor the employee for an H-1B visa?

ANSWER:

There are several fees and costs associated with a company filing an H-1B petition. These include the legal fees, various expenses such as the cost of translations, and filing fees. There are several filing fees: 1) the I-129 filing fee (currently $320); 2) the Fraud Prevention Fee ($500 one-time fee); 3) the Training Fee ($750 or $1,500 depending on the size of the company); and 4) the Premium Processing Fee (an optional $1,000 fee to have the petition adjudicated in 2 to 6 weeks).

These costs are the responsibility of the company. In part, these costs are a penalty put on the company to make the H-1B less attractive so that companies will be more inclined to hire a U.S. worker rather than an H-1B employee. However, under certain circumstances some of the costs can be paid by the employee.

First, the company must pay the Fraud Prevention Fee and the Training Fee.

Second, the employee may not pay any of the other costs if it would bring the employee’s wage below the Required Wage.

All H-1B employees must be paid no less than a Required Wage. The Required Wage is the higher of either the local Prevailing Wage for the position, generally as determined by the DOL, or the Actual Wage paid to other employees of the company in comparable positions. This rule is required so that companies do not hire H-1B employees at a lower wage than they would hire U.S. workers, thereby suppressing wages.

The costs paid by the employee toward the H-1B petition will be counted as a reduction in the employee’s wages. This final wage must not be lower than the Required Wage.

USCIS is now conducting site visits for many H-1B employers and part of their questioning is about who paid the costs for the employee’s H-1B petition.

For more information on the H-1B visa, go to our ABC’s of Immigration section where you can read articles these topics:

H-1B Overview

The H-1B Cap

H-1B Flowchart

The Labor Condition Application

And if you wish to discuss the particulars of your case, you can schedule a consulation appointment with me by calling 901-682-6455.

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