Macaca
03-07 08:24 PM
Passing On H-1b Costs to the Employee? Smart Business Practice or DOL Violation? (http://www.hammondlawfirm.com/FeesArticle07.18.2006.pdf) by Michael F. Hammond and Damaris Del Valle. Note: Authors are immigration lawyers.
After all the costs associated with an H-1B petition are totaled, the sum can be alarming. In order to offset this cost, some employers ask that the beneficiary, the employee who is being hired, reimburse the company in whole or in part. Which costs may and may not be paid by the beneficiary can be a tricky matter. What follows is an analysis of H-1B costs and who may pay what.
All deductions from an H-1B worker’s pay fall into three categories: authorized, unauthorized, or prohibited. Authorized deductions can be taken without worry of whether or not such a deduction will lower the employee’s rate of pay below the required wage rate. Unauthorized deductions, counter to what the term may connote, can be taken from an employee’s wage but are considered non-payment and are only allowed if the beneficiary’s wage rate, after the deduction(s), is greater than the required amount listed on the Labor Condition Application (LCA). Unauthorized deductions cannot push the employee’s wage below either the prevailing wage rate or the actual wage rate, i.e. salaries of those similarly employed and qualified at the work site. Prohibited deductions may not be taken from the employee’s pay regardless of the effect they would have on the required wage rate.
The most straightforward of the deductions is the prohibited deduction. The Training Fee associated with the H-1B petition is the only prohibited deduction associated with the cost of filing an H-1B petition. Rajan v. International Business Solutions, Ltd. and the language in the relevant regulation make it very clear that the Training Fee is to be paid by the employer or a third party; it is not to be reimbursed in part or whole by the employee. This fee must be completely shouldered by the employer or a party who is not the employee.
Deductions are considered by the Department of Labor (DOL) to be authorized if:
The deduction is reported as such on the employer’s payroll records,
The employee has voluntarily agreed to the deduction and such agreement is documented in writing (a job offer which carries a deduction as a condition of employment does not meet this requirement),
The deduction is for a matter that is principally for the benefit of the employee,
The deduction is not a recoupment of the employer’s business expenses,
The amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered, and
The amount deducted is not more than 25% of the employee’s disposable earning.
An Education Evaluation arguably qualifies as an authorized deduction. Similar to a translation fee, which is payable by the employee, the employee is benefiting from the evaluation and will be able to use it in the future in his/her private capacity if s/he so wishes. Of course, if the employee is paying for the evaluation, then s/he must be able to acquire a copy of the evaluation so that the future benefit upon which his/her payment is presumed is a real possibility.
Attorney’s fees associated with obtaining H-4 status for family members accompanying the Beneficiary may qualify as authorized deductions since the Beneficiary is the party who primarily benefits from such fees. In addition, attorney fees associated with visa issuance, assuming that international travel is not a requirement for the position, could be properly considered as authorized deductions. In order to properly deduct the attorney fees associated with these processes, it is important that the attorney break down the specifics of how much is being charged for each element of the H-1B process- this will allow the employer to deduct those fees associated with the retention of the visas for the accompanying family members without concerning itself with the deduction requirements necessary for unauthorized deductions.
The circumstances surrounding the Premium Processing Fee determine if deduction of the fee is to qualify as authorized or unauthorized. While the speedy decision that the Premium Processing Fee guarantees often benefits both the employer and the employee, it is important to take notice of which party requests and benefits most from premium processing. If the employee has decided to utilize premium processing for his/her own personal benefit, then the employer may be reimbursed by the employee in accordance with the requirements established by the DOL for authorized deductions. If the employer isthe party desiring premium process and who will benefit from such processing,9 then any deductions from the employee’s pay are unauthorized and, as such
Deduction of attorney’s fees associated with the filing of the LCA or H-1B and the Base Fee (or I-129 Fee) are considered to be unauthorized. These fees are considered to be the employer’s business expenses and, for this reason, are not authorized deductions. These fees may be deducted from the employee’s pay so long as they do not drop the rate of pay below the required wage rate.
It is not clear whether or not the Fraud Fee which was implemented in March 2005 is unauthorized or prohibited. The language of the act regarding the Fraud Fee states that “the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition.”10 Almost identical language is used in the Act to refer to the Training Fee.11 Such similarity could be read to mean that the restrictions of the Training Fee also apply to the Fraud Fee. However, 20 C.F.R. 655 is explicit in saying that the employee cannot pay the Training Fee; no such statement is made regarding the Fraud Fee. The regulation regarding the Training Fee, 20 C.F.R. 655, predates the creation of the Fraud Fee, which may explain this discrepancy. Nonetheless, the language referring to the Fraud Fee is not explicitly prohibitive and an employer may decide to be reimbursed by the employee. If an employer chooses to do so, any deductions from the employee’s salary to pay for this fee must meet the DOL requirements for unauthorized deductions. 12
Before any payments are made by the employee or deductions are taken from his/her pay to reimburse the employer, it must be determined if such deduction is permitted and if so, whether or not it is authorized or unauthorized. Once these preliminary determinations are made, appropriate steps must be taken to ensure that the DOL’s requirements are met. As a practical matter, there are very few circumstances in which the prospective employee could legally be made to pay for the costs associated with the H-1b process without an employer risking non-compliance and causing significant record keeping.
After all the costs associated with an H-1B petition are totaled, the sum can be alarming. In order to offset this cost, some employers ask that the beneficiary, the employee who is being hired, reimburse the company in whole or in part. Which costs may and may not be paid by the beneficiary can be a tricky matter. What follows is an analysis of H-1B costs and who may pay what.
All deductions from an H-1B worker’s pay fall into three categories: authorized, unauthorized, or prohibited. Authorized deductions can be taken without worry of whether or not such a deduction will lower the employee’s rate of pay below the required wage rate. Unauthorized deductions, counter to what the term may connote, can be taken from an employee’s wage but are considered non-payment and are only allowed if the beneficiary’s wage rate, after the deduction(s), is greater than the required amount listed on the Labor Condition Application (LCA). Unauthorized deductions cannot push the employee’s wage below either the prevailing wage rate or the actual wage rate, i.e. salaries of those similarly employed and qualified at the work site. Prohibited deductions may not be taken from the employee’s pay regardless of the effect they would have on the required wage rate.
The most straightforward of the deductions is the prohibited deduction. The Training Fee associated with the H-1B petition is the only prohibited deduction associated with the cost of filing an H-1B petition. Rajan v. International Business Solutions, Ltd. and the language in the relevant regulation make it very clear that the Training Fee is to be paid by the employer or a third party; it is not to be reimbursed in part or whole by the employee. This fee must be completely shouldered by the employer or a party who is not the employee.
Deductions are considered by the Department of Labor (DOL) to be authorized if:
The deduction is reported as such on the employer’s payroll records,
The employee has voluntarily agreed to the deduction and such agreement is documented in writing (a job offer which carries a deduction as a condition of employment does not meet this requirement),
The deduction is for a matter that is principally for the benefit of the employee,
The deduction is not a recoupment of the employer’s business expenses,
The amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered, and
The amount deducted is not more than 25% of the employee’s disposable earning.
An Education Evaluation arguably qualifies as an authorized deduction. Similar to a translation fee, which is payable by the employee, the employee is benefiting from the evaluation and will be able to use it in the future in his/her private capacity if s/he so wishes. Of course, if the employee is paying for the evaluation, then s/he must be able to acquire a copy of the evaluation so that the future benefit upon which his/her payment is presumed is a real possibility.
Attorney’s fees associated with obtaining H-4 status for family members accompanying the Beneficiary may qualify as authorized deductions since the Beneficiary is the party who primarily benefits from such fees. In addition, attorney fees associated with visa issuance, assuming that international travel is not a requirement for the position, could be properly considered as authorized deductions. In order to properly deduct the attorney fees associated with these processes, it is important that the attorney break down the specifics of how much is being charged for each element of the H-1B process- this will allow the employer to deduct those fees associated with the retention of the visas for the accompanying family members without concerning itself with the deduction requirements necessary for unauthorized deductions.
The circumstances surrounding the Premium Processing Fee determine if deduction of the fee is to qualify as authorized or unauthorized. While the speedy decision that the Premium Processing Fee guarantees often benefits both the employer and the employee, it is important to take notice of which party requests and benefits most from premium processing. If the employee has decided to utilize premium processing for his/her own personal benefit, then the employer may be reimbursed by the employee in accordance with the requirements established by the DOL for authorized deductions. If the employer isthe party desiring premium process and who will benefit from such processing,9 then any deductions from the employee’s pay are unauthorized and, as such
Deduction of attorney’s fees associated with the filing of the LCA or H-1B and the Base Fee (or I-129 Fee) are considered to be unauthorized. These fees are considered to be the employer’s business expenses and, for this reason, are not authorized deductions. These fees may be deducted from the employee’s pay so long as they do not drop the rate of pay below the required wage rate.
It is not clear whether or not the Fraud Fee which was implemented in March 2005 is unauthorized or prohibited. The language of the act regarding the Fraud Fee states that “the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition.”10 Almost identical language is used in the Act to refer to the Training Fee.11 Such similarity could be read to mean that the restrictions of the Training Fee also apply to the Fraud Fee. However, 20 C.F.R. 655 is explicit in saying that the employee cannot pay the Training Fee; no such statement is made regarding the Fraud Fee. The regulation regarding the Training Fee, 20 C.F.R. 655, predates the creation of the Fraud Fee, which may explain this discrepancy. Nonetheless, the language referring to the Fraud Fee is not explicitly prohibitive and an employer may decide to be reimbursed by the employee. If an employer chooses to do so, any deductions from the employee’s salary to pay for this fee must meet the DOL requirements for unauthorized deductions. 12
Before any payments are made by the employee or deductions are taken from his/her pay to reimburse the employer, it must be determined if such deduction is permitted and if so, whether or not it is authorized or unauthorized. Once these preliminary determinations are made, appropriate steps must be taken to ensure that the DOL’s requirements are met. As a practical matter, there are very few circumstances in which the prospective employee could legally be made to pay for the costs associated with the H-1b process without an employer risking non-compliance and causing significant record keeping.
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gc_bucs
02-28 09:44 PM
Thanks to the IV team for their time and efforts.
I picked up the following from http://www.immigration-law.com/
Report indicates that more and more state governors come forward to urge support of Comprehensive Immigration Reform. It appears that this is particularly noticeable in the western states. There has been Governors conference for the last few days and reportedly the Utah Governor Jon Huntsman Jr. and Arizona Governor Janet Napolitano asked Western governors to:
* Oppose blanket amnesty to all undocumented workers and support "appropriate sanctions" for those breaking the law.
* Urge Congress to avoid creating incentives for more illegal immigration by "creating unnecessary hurdles and lengthy delays" for those wishing to immigrate legally.
* Call for full funding for law enforcement and security along the southern U.S. border, enforcement using "cutting-edge" technology, better coordination with law enforcement agents and construction of a federal correctional facility to house illegal immigrants convicted in state courts as well as reimbursement to states for incarcerating illegal immigrants.
* Request full funding for processing employment-based visas; eliminating visa-request backlogs and increasing the number of visas to meet U.S. industry needs, especially in high-tech, bio-tech and seasonal-based industries.
* Establish a guest worker program that will include background checks to help supply workers where there are shortages.
* Enforce sanctions against employers for hiring illegal immigrants along with a system for employers to verify citizenship and worker status.
I picked up the following from http://www.immigration-law.com/
Report indicates that more and more state governors come forward to urge support of Comprehensive Immigration Reform. It appears that this is particularly noticeable in the western states. There has been Governors conference for the last few days and reportedly the Utah Governor Jon Huntsman Jr. and Arizona Governor Janet Napolitano asked Western governors to:
* Oppose blanket amnesty to all undocumented workers and support "appropriate sanctions" for those breaking the law.
* Urge Congress to avoid creating incentives for more illegal immigration by "creating unnecessary hurdles and lengthy delays" for those wishing to immigrate legally.
* Call for full funding for law enforcement and security along the southern U.S. border, enforcement using "cutting-edge" technology, better coordination with law enforcement agents and construction of a federal correctional facility to house illegal immigrants convicted in state courts as well as reimbursement to states for incarcerating illegal immigrants.
* Request full funding for processing employment-based visas; eliminating visa-request backlogs and increasing the number of visas to meet U.S. industry needs, especially in high-tech, bio-tech and seasonal-based industries.
* Establish a guest worker program that will include background checks to help supply workers where there are shortages.
* Enforce sanctions against employers for hiring illegal immigrants along with a system for employers to verify citizenship and worker status.
prinive
02-11 09:28 AM
I agree 100% with you.... It is time to move on...
Well, you have not pissed me at all. I did what IV had asked in one month back. I had sent my 2 letters (me and my wife) 17 days back and collected another 12 letters from friends and send them too. I had contributed what ever IV had asked until now, what ever it may be.
I am sorry, but just a note can baffle you guys and you put all the -ve comments to the post, then sorry to say you guys cannot take any constructive opinion from others. And I think I did no wrong in asking Chanduv to stop posting innumerable threads just for one cause.
GOD Bless you all.
Well, you have not pissed me at all. I did what IV had asked in one month back. I had sent my 2 letters (me and my wife) 17 days back and collected another 12 letters from friends and send them too. I had contributed what ever IV had asked until now, what ever it may be.
I am sorry, but just a note can baffle you guys and you put all the -ve comments to the post, then sorry to say you guys cannot take any constructive opinion from others. And I think I did no wrong in asking Chanduv to stop posting innumerable threads just for one cause.
GOD Bless you all.
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qplearn
10-20 04:58 PM
My colleague filed 140&485 in August. Her case was sent to TSC. So far her 131, 765, and 140 approved. Also, she has done her FP. What a different! I was wondering what's the purpose of "bi-specilization"??
The name check takes 2 years anyway, making a mockery of fast processing times. Even VSC, which is the slowest, takes less than 2 yrs for 485.
BTW, it is awfully quiet here nowadays.
The name check takes 2 years anyway, making a mockery of fast processing times. Even VSC, which is the slowest, takes less than 2 yrs for 485.
BTW, it is awfully quiet here nowadays.
more...
n.sravan
10-04 10:39 AM
Hello gg_ny,
It is too scary.. Plz note that the surname change is after mariz.. As per our convention, after mariz, wife's surname changes to that of husbands.. We have the mariz certificate with us.
Is this still that major problem, as earlier explained by you?
It is too scary.. Plz note that the surname change is after mariz.. As per our convention, after mariz, wife's surname changes to that of husbands.. We have the mariz certificate with us.
Is this still that major problem, as earlier explained by you?
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a_yaja
09-18 06:27 PM
I have EAD for couple of years & when I moved to Ohio, I was issued 4 years DL. They did look at I-94 (I travelled on AP having one year validaty on I-94), also they DID NOT looked at my EAD expiry date..They asked very simple question - Do you have your SSN? Thats it..!
C'mon...Guys, come to Ohio..you will get DL for 4 years..
Where did you get your DL renewed for 4 yrs? Mine was renewed only till my I-94 validity period.
C'mon...Guys, come to Ohio..you will get DL for 4 years..
Where did you get your DL renewed for 4 yrs? Mine was renewed only till my I-94 validity period.
more...
nchendica
04-25 01:50 PM
Get your degrees evaluated by the certified evluators and add your experience to be qualified or you can go for EB 3 but your priority date will remain the same. A friend of mine was in the same boat, but had 3 years commerce college and 2 years MBA from UK and was in his 9th year of H1, I 140 was denied. He appealed and REAPPLIED I 140 with all the evaluations, he got approval in less than a month but EB3 with the same old priority date.
Good Luck..
Ramesh
Thanks for your update Ramesh. My labor substituion is EB2. Prior to the filing I have 12 years of experience with 18 years of education. Now going for EB3 is filing a new labor under EB3 or file a new I-140 and say it is EB3 and not EB2. Could you please help me by providing more info on this?
Thanks,
Naga
Good Luck..
Ramesh
Thanks for your update Ramesh. My labor substituion is EB2. Prior to the filing I have 12 years of experience with 18 years of education. Now going for EB3 is filing a new labor under EB3 or file a new I-140 and say it is EB3 and not EB2. Could you please help me by providing more info on this?
Thanks,
Naga
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vactorboy29
03-03 03:56 PM
At what stage will my current job description be matched to the Job description in my Labor or I-140?
My I-140 is approved foralmost a year now and I had enquired with USCIS a few month ago and they told me my Name check has also been cleared and my case is just waiting I-485 adjudication when visa numebrs are available. I thought when my Priority date becomes current, I will get my GC seamlessly unless there is an RFE.
Also, is there any documentation that states 50% job description match? This is the first time i'm hearing this criteria. I do understand that if I work as Mechanical engineer, I should not chnage my job to a Software engineer...but will getting a Mechanical Engineering job in a totally different industry be a problem?
Thanks again for your time.
Once you invoke AC21 .You may get rfe where your new employment detail will be verify by adjudicator assigned to your case against Perm application. This is very subjective matter depends and how uscis handle your case. I think 50 % matching requirement is not written any where, it is just common practice .No one can expect us to match 100 % job requirement with old labor petition.
Mostly watch for your EB2 requirement with your job description. Here is the DOL web site link which talks about job description comes under that code.
http://www.onetcodeconnector.org/ccreport/17-2141.00
My I-140 is approved foralmost a year now and I had enquired with USCIS a few month ago and they told me my Name check has also been cleared and my case is just waiting I-485 adjudication when visa numebrs are available. I thought when my Priority date becomes current, I will get my GC seamlessly unless there is an RFE.
Also, is there any documentation that states 50% job description match? This is the first time i'm hearing this criteria. I do understand that if I work as Mechanical engineer, I should not chnage my job to a Software engineer...but will getting a Mechanical Engineering job in a totally different industry be a problem?
Thanks again for your time.
Once you invoke AC21 .You may get rfe where your new employment detail will be verify by adjudicator assigned to your case against Perm application. This is very subjective matter depends and how uscis handle your case. I think 50 % matching requirement is not written any where, it is just common practice .No one can expect us to match 100 % job requirement with old labor petition.
Mostly watch for your EB2 requirement with your job description. Here is the DOL web site link which talks about job description comes under that code.
http://www.onetcodeconnector.org/ccreport/17-2141.00
more...
setpit_gc
02-27 07:04 PM
All,
Do we need to keep a copy of LC?. I have copies of all the documents except Labor Certification.
Thanks
Do we need to keep a copy of LC?. I have copies of all the documents except Labor Certification.
Thanks
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rb_248
05-24 01:34 PM
Sent from South Florida
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jnagendra
06-19 06:29 PM
Appointments available with INS Approved Civil Surgeons
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(732) 494-0080
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Dr Sunil A Patel M.D.
INS Approved Civil Surgeon
1804 Oaktree Road #3
Edison, NJ -08820
(732) 494-0080
Dr Shefali S Patel M.D.
INS Approved Civil Surgeon
1804 Oaktree Road #3
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(732) 494-0080
You can call and go in
Charges: $170
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mps
10-02 10:11 AM
I would save expenses of atleast one year in an emergency fund before putting extra money towards house payoff.
In better job market you can reduce your emerency fund to upto six months worth of expenses and move rest of the money to reduce principle you owe towards your house.
In better job market you can reduce your emerency fund to upto six months worth of expenses and move rest of the money to reduce principle you owe towards your house.
more...
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hpandey
09-16 08:02 PM
The approval of h1 will not invalidate H4 visa. The usage of h1 visa invalidates H4 visa.
if you have h1 approved and don't join the company, then your h4 remains intact. Once you join a company on h1, you will fill out i-9 form, which informs the concerend authorities about your status change.
That's what I meant . Since he started usinlg the H1 his H4 visa was no longer valid . Doesn't that mean that if he goes back he will have to get some kind of visa stamped to come back ( either H4 or H1 ). Could someone throw more light on this situation.
if you have h1 approved and don't join the company, then your h4 remains intact. Once you join a company on h1, you will fill out i-9 form, which informs the concerend authorities about your status change.
That's what I meant . Since he started usinlg the H1 his H4 visa was no longer valid . Doesn't that mean that if he goes back he will have to get some kind of visa stamped to come back ( either H4 or H1 ). Could someone throw more light on this situation.
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bomber
08-16 06:15 PM
SLowhand, You are absolutely right. We can understand if USCIS does not send anything to employee for I-140, but for I-485, which really is an application from the employee, it is really not legal for the attorneys to dance on employers' tunes and provide our paperwork to them and then blackmailing us together.
How can we take it up with USCIS through IV?
How can we take it up with USCIS through IV?
more...
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tabletpc
09-19 11:13 AM
This topic is useless...!!!!
What are you going to achive by knowing about US citizens..???
If they make a rule wherin US born child parents should be given the US citizen ship, hands down I can say immigrant will make use of this rule efficiently.:D:D:D:D:D
What are you going to achive by knowing about US citizens..???
If they make a rule wherin US born child parents should be given the US citizen ship, hands down I can say immigrant will make use of this rule efficiently.:D:D:D:D:D
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learning01
05-26 01:26 PM
We have limited time and we have to achieve a lot. Our time and efforts should be utilized in a much better way, don't you agree? I appreciate your posting of your links. And what is your point? Include as a small comment or note at the top. It is easy for any one to 'google' conference, immigration and bill to come up with a few thousand good and relevant link. If I post a good number of them, one would definitely be lost.
Posting links should serve a purpose here. The primary purpose is achieving IV goals. A smaller purpose could be to see what the other side is saying, but my suggestion is to ignore them in general.
I went to both the links; one of the I understand is a Libertarian organization and the other radical left. As anyone can see, they don't represent the views of mainstream America. So, it is a waste of time and effort and above all a distraction here. That's my advice.
check these :
Posting links should serve a purpose here. The primary purpose is achieving IV goals. A smaller purpose could be to see what the other side is saying, but my suggestion is to ignore them in general.
I went to both the links; one of the I understand is a Libertarian organization and the other radical left. As anyone can see, they don't represent the views of mainstream America. So, it is a waste of time and effort and above all a distraction here. That's my advice.
check these :
more...
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dhirajs98
08-24 10:10 AM
NSC received my AOS packet on July 24th and all my checks cased yesterday. I file I140 and I485 concurrently.
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glus
10-17 09:31 AM
If you enter on AP, but have a valid H1 extension approval to xx date, and the xx date approaches and you are working for only the original H-1 employer maintaining ALL the conditions of H-1, you can request an extension of H1 status and if all is ok and it will be granted and you will get back on H1B non-immigrant status. But until such time, one is not considered in H1 non-immigrant status but "adjustee of status," which is NOT any non-immigrant status.
Read closely if you did not understand the above.
Read closely if you did not understand the above.
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Sakthisagar
11-15 10:11 AM
Immigration and education should be two seperate things. NO support to categorize further on immigration, We should take out the country cap. It should be First come first serve basis. with necessary background checks on education and skills.
madhuvj
04-22 09:23 AM
Try the thedegreepeople.com. These people can evaluate your degree/Diploma course by course specifically for Immigration purpose with in 4-5 business days and you can consult with your lawyer to appeal against the I-140 rejection. They offer you good help when you reach them thru the phone, they have one of the best Free consultation service ( And I dont work for them .. ! lol ! ). Their rates are nominal. Iam sure this is gonna help you.
Good Luck
Good Luck
seekerofpeace
09-17 04:37 PM
I think we physically need to go to the adjudication center...wait at the gate do a bhuk hartaal or the sort to get our cases cleared.
I am pretty positive that SR/Infopass/Congressman/Senator are coincidences....it should not work all the time otherwise you and I would have been approved too...
I am told different things everytime I call them .....
It is hopeless since I am sure the October bulletin will put the EB-2I for November to U or early 2000s as there are hardly any visa numbers per the country cap quota...and then you need to wait till Sept 2010 for any luck.....
SoP
I am pretty positive that SR/Infopass/Congressman/Senator are coincidences....it should not work all the time otherwise you and I would have been approved too...
I am told different things everytime I call them .....
It is hopeless since I am sure the October bulletin will put the EB-2I for November to U or early 2000s as there are hardly any visa numbers per the country cap quota...and then you need to wait till Sept 2010 for any luck.....
SoP
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