Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman
Recruiters with their eyes on the global talent pool know that the most efficient way to recruit and employ international professionals often is through the H-1B visa. This is an employment-based, temporary visa category for foreign-born workers whose jobs require at minimum a four-year degree or its equivalent. H-1B work status is good for up to six years, and many foreign workers elect to adjust their status during that time to permanent resident. Business executives, information technology professionals, scientists, physicians, and educators are among the many types of workers who are recruited and employed byU.S.firms on H-1B visas.
While recruiting international talent is one key to success in a global economy, immigration processing costs can be substantial. For example, the cost of filing an H-1B petition may include:
*H-1B petition filing fee: $325
*Anti-fraud fee: $500
*ACWIA fee: $750-$1,500
*Premium processing fee: $1,225
*Public Law 111-230 fee: $2,000
To ameliorate these costs, some employers ask their employees to contribute toward the fees. Recruiters should be aware, however, that this is not always a wise course of action.
Federal regulations require the employer to pay the H-1B worker a wage that is equal to or higher than the actual wage or the prevailing wage for similarly employed workers. The actual wage is the wage rate paid to all other workers in the same position with similar experience and qualifications. If there are no such examples, then the H-1B worker should be paid the prevailing wage. The prevailing wage is determined by the Department of Labor (DOL), or by the use of an appropriate salary survey or collective bargaining agreement, and is detailed on the accompanying Labor Condition Application (LCA) that is certified by the DOL and attached to the H-1B petition when filed.
By statute, the only portion of the H-1B filing fees that must be paid by the employer is the ACWIA fee of $750-$1,500 under Section 214(a)(9)(A) and (B) of the Immigration and Nationality Act.
However, if the employee pays for any other portion of the H-1B process, this amount may need to be added to his or her salary. The wage offered to the H-1B worker after his or her portion of the H-1B process has been paid must be equal to, or greater than, the actual wage of the prevailing wage, which is higher, as indicated on the LCA.
In recent years, the federal government has been more aggressive about auditing employers’ immigration related paperwork. For example, officers with the U.S. Center for Immigration Services’ Fraud Detection and National Security (FDNS) branch conduct random onsite inspections of H-1B employers as a way to verify information contained in certain petitions, including H-1B petitions.
There have been reports that among the questions asked by FDNS agents during these inspections is who paid for the H-1B process. Employers then must justify their policies and may be obliged to prove that if the employee paid any portion of the fees, that portion was added to their wages. The best way to avoid this contentious issue is for the employer to pay all of the filing fees.
What happens if the employee is asked to pay part of the filing fees and complains to the Labor Department?A Federal District Courtrecently ruled in one such case that it was the employer’s legal responsibility to pay for all the government filing fees and the attorney fees associated with the H-1B petition.
Although this ruling currently is on appeal to the U.S Court of Appeals for the 6th Circuit, employers who pass along any of the costs involved in securing H-1B status for their employees do so at considerable risk. Recruiters are therefore advised to consult with their human resource departments to ensure that this risk is avoided.
Carl Shusterman served as a trial attorney with the U.S. Immigration and Naturalization Service (1976-82) and is principal of The Law Offices of Carl Shusterman, a firm specializing in immigration law. He can be reached at carl@shusterman.com.
