Can a US employer enforce a foreign employee to pay the fees associated with an H1B employment visa? Hi, I’m Jim Hacking, immigration attorney practicing law here in St. Louis, Missouri. When H1B season is upon us, many people have questions about the employment visa process. There are a lot of fees that are associated with that, fees that go to the federal government. There’s the filing fee for the I1-29, which is the actual form that you complete to request an H1B visa application. There’s the premium processing fee. We always encourage our employers to pay that extra premium processing fee, which is currently $1,225.
There’s also fees associated with a fraud detection fee and the American competitiveness fee. An employer, right out of the box is looking at paying roughly $325 plus $1,225 … roughly about $3,000-$3,500 in fees. Sometimes, employers ask us, or employees offer to pay those fees and that’s a real no-no. That’s strictly prohibited by the regulations and current US law. An employer cannot ask an employee to pay those fees. You can’t be too cute or creative trying to get around that requirement. It’s something that the Department of Labor and USCIS take very seriously.
They have been known to conduct audits to make sure that it was, in fact, the employer who paid those fees. They reason that is so is because you always have to keep in mind in employment visa situation that the employer always has to promise the prevailing wage. The purpose of requiring employers to pay a prevailing wages to make sure that American workers are not getting penalized or harmed by the fact that an employer wants to hire a foreign worker. If you operate from the mindset that the law is set up to protect the American workers, then, it makes sense that the law would require an employer to pay the prevailing wage.
You don’t want an employer to be able to end run around the prevailing wage by offering lower expenses, lower wages to employees, and thereby hurt American workers’ opportunities to make a good salary and to gain employment. If employer A is following the rules and paying the prevailing wage of $50,000, but employer B is hiring a foreign worker, and paying less than that, say $10,000 less, then, that’s going to harm the American workforce. If you operate from that standpoint, then, you understand that the prevailing wage is designed to protect American workers and to allow the law to protect those workers.
Going for the prevailing wage, you want to make sure that the employee is being paid the right amount and that employer is paying the right amount. If the employer tried to shift the cost associated with the legal fees and the filing fees associated with preparing an H1B application to the employee, and they had certified that they are paying just at the prevailing wage, in fact, they would be paying less than the prevailing wage because they would be deducting that from the employee’s pay. Don’t try to be too cute. Don’t try to be too clever. Follow the rules and make sure that you pay the prevailing wage.
Do not ask an employee ever to pay those fees. If an employee tells you that he or she would be willing to pay those fees, do not take them up on that offer. That will get you in serious trouble. Like I said, The Department of Labor has been known to conduct audits. In fact, one of our clients once got audited to make sure that the employer had paid all the fees and we were able to document that not only had they paid all of the government fees but the employer had paid us, the employee’s attorney to make sure that all the fees were paid properly and our client made it through that audit just fine because we had followed all the rules.
Don’t think that you can get away with it. You’ll get caught, and it will be a serious problem. You’ll launch a Department of Labor investigation into your practices. They’ll look at all your other H1B applications. If you ever want to apply in the future for an H1B employer, if you’ve been found to have violated those rules that’s going to be a whole lot tougher. Don’t be too cute. Don’t be too clever.
You’re not as smart as you think you are, and you’re going to get in big trouble if you try to pull that off. If you have any questions about this, about the H1B fees, either the filing fees or the legal fees, or how that part of things work, feel free to give us a call, 314-961-8200, or you can email me, firstname.lastname@example.org. Thanks a lot.