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.