We frequently have clients asking us who is required to pay for fees and costs associated with an H-1B petition or a green card obtained through employment. The answer depends upon the specific process and expense as follows:

Fees Associated with Filing an H-1B Petition

Attorney Fees: 20 C.F.R. 655.731(c) (9) states that an employer may NOT recoup H-1B costs that are considered an “employer’s business expense.”  The following examples of an “employer’s business expense” are specifically enumerated in the regulations:

1.      tools and equipment;

2.      transportation costs where such transportation is an incident of, and necessary to, employment;

3.      living expenses when the employee is traveling on employer business; and

4.      Attorney fees and other costs connected to the performance of the H-1B program functions that the employer must perform, such as preparation and filing of the LCA and H-1B petition.

Therefore, an H-1B employer CANNOT require that an employee pay for or reimburse the employer for attorney fees associated with the preparation or filing of an H-1B petition. However, the employer may require that the H-1B employee pay the attorney fees associated with filing an application for an H-4 dependent, which may be a spouse or child.

Filing Fees: The fees associated with an H-1B filing must be paid by the employer and cannot be borne by the H-1B employee. If the 15-day premium processing is desired, however, this optional fee may be paid by either party depending on the circumstances. If premium processing is requested for the benefit of the employer, the employer must pay this expense. If the employee is requesting premium processing for his or her own benefit, the employee may pay for premium processing.

For example, in certain states like California, an original approval notice is required to renew driver’s license. In such an instance, an employer may be responsible for paying the premium-processing fee so that the employee can have a valid driver’s license in order to come to work. What if the employee desires to have the petition filed under premium processing so that he or she can take a vacation back home? In such an instance, the H-1B employee may be responsible for paying the premium processing fee, as the employee is the primary beneficiary of the request.

Reimbursement upon Termination: 20 C.F.R. 655.731(c) (10) state that a deduction or reduction from the required wage is not authorized if it is a “penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer.” Nevertheless, in limited circumstances, an employer may receive “bona fide liquidated damages from an H-1B nonimmigrant that ceases employment with the employer prior to an agreed date.”  To determine whether a deduction or reduction in pay is permissible, an employer should review the language of its reimbursement agreement with a qualified immigration attorney and/or employment/labor attorney.

Fees Associated with Sponsoring a Worker for Permanent Residence Status (“Green Card”)

Generally, for an employer to sponsor a foreign national for U.S. permanent resident status (i.e. a “green card”) it has to take the following steps:

1) Application for Permanent Employment Certification (i.e. ETA-9089, labor certification, or PERM);

2) I-140, Petition for Alien Worker; and

3) I-485, Application to Adjust Status.

PERM Fees: 20 C.F.R. 656.12 says that the employer is responsible for ALL fees associated with the PERM process, including recruitment costs and attorneys’ fees. The only time the employee may pay for these costs is if the attorney represents the employee and not the employer. However, in most cases, the attorney will be representing both the employer and employee during this step, as the attorney will file the PERM on behalf of the employer. Therefore, the employer is generally responsible for all costs associated with this process.

I-140 Fees: There is no regulation precluding payment of I-140 fees by the employee. Therefore, an employer may enter an agreement specifying that the employee is responsible for all costs associated with this process, including filings fees and attorneys’ fees.

I-485 Fees: There is no regulation precluding of I-485 fees by the employee. Therefore, an employer may enter an agreement specifying that the employee is responsible for all costs associated with this process, including filings fees, biometrics fees, and attorneys’ fees.

Conclusion

The employer and the employee should discuss the financial responsibilities of each party before initiating the process for an H-1B or a green card and it is highly recommended that the parties draft an agreement outlining each party’s responsibilities.