May an employer require an H-1B temporary worker to pay attorney and/or filing fees and expenses related to an H-1B temporary worker petition? If the H-1B employer pays the fees, may the employer deduct amounts from the H-1B worker’s salary to recover the expenses or otherwise recoup these amounts?
While this may have been an area of confusion over the years, it is the current position of the US Department of Labor (DOL) that an H-1B employer must pay all legal fees, filing fees and expenses related to the securing of H-1B temporary worker status for a foreign worker.
The reasoning is as follows. An employer may not recoup a business expense from an H-1B temporary worker employee. Further, an employer must pay an H-1B temporary worker no less than the higher of either the prevailing wage for the occupation in the geographic location where the H-1B employee works OR the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question (i.e., the employer’s actual wage). http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=20:184.108.40.206.35&idno=20 DOL’s position, which appears in its Regulations http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title20/20cfr655_main_02.tpl, is that an H-1B worker’s payment of fees and/or costs related to the H-1B filing reduces the worker’s wage below the required wage rate. In it’s Wage & Hour Division Fact Sheet 62H, DOL describes permissible deductions from an H-1B temporary worker’s salary. http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62H.pdf
As such, if audited, an employer whose H-1B worker has paid part or all of the H-1B-related fees or costs would be found liable for the payment of back-wages to the H-1B worker.
Perhaps more significantly, by signing the ETA 9035 Labor Condition Application (LCA), a critical part of an H-1B petition, an employer attests to its commitment to pay the H-1B employee no less than the higher of the prevailing wage or the actual wage. Could failure to do so be considered a “false statement” or “misrepresentation”? The LCA form instructions state that false statements are subject to Federal criminal penalties and that failure to meet a condition of the application or misrepresentation of a material fact may result in civil money penalties, debarment, and other appropriate relief. http://www.lca.doleta.gov/h1bcl_nw.pdf
While the law is always subject to interpretation, for now and for the foreseeable future, a cautious employer will be sure to cover the fees and costs related to an H-1B petition and not recoup any such amounts from the H-1B worker. The potential consequences of not doing so, particularly in the current aggressive enforcement environment, may be severe.