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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deleteuser
07-13 12:42 PM
Damn..F5 button on my keyboard needs replacing:D
You can use Opera, it has an Automatically Reload Page feature. Pretty useful these days :cool: :cool:
You can use Opera, it has an Automatically Reload Page feature. Pretty useful these days :cool: :cool:
maverick_neo
08-14 06:41 PM
According to my attorney 2 things
1. You just need the receipts to travel not the Ap approval perse.
LINKS please
2. If your H1B petition is still valid, you are OK, if you notice the botton part of your petition is your original I94, so you are covered with that.
Petition does not help if you don't have a visa and one wants to travel, Visa is for entry and I94 is for staying in country
3. according to my attorney CIS will take 45 days for the RD to deliver the I797 notice to you home, so if you applied the last days of July, by the 3rd week of September you will receive the I797 notice.
As note my attorney was president of the AILA last year and her husband work in the CIS, so some how the info is trustable.
Good Luck
See above.
1. You just need the receipts to travel not the Ap approval perse.
LINKS please
2. If your H1B petition is still valid, you are OK, if you notice the botton part of your petition is your original I94, so you are covered with that.
Petition does not help if you don't have a visa and one wants to travel, Visa is for entry and I94 is for staying in country
3. according to my attorney CIS will take 45 days for the RD to deliver the I797 notice to you home, so if you applied the last days of July, by the 3rd week of September you will receive the I797 notice.
As note my attorney was president of the AILA last year and her husband work in the CIS, so some how the info is trustable.
Good Luck
See above.
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nk2006
03-16 04:34 PM
Hi pd,
thanks for the post - its useful.
There is comment in the report about the EAD/AP validity for three years, as in "Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents".
I thought they are now giving two years for EAD (if PD is under retrogession) - this plan of extending this validity to three years - is it new or some sort of typo? If true - that would be good.
thanks for the post - its useful.
There is comment in the report about the EAD/AP validity for three years, as in "Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents".
I thought they are now giving two years for EAD (if PD is under retrogession) - this plan of extending this validity to three years - is it new or some sort of typo? If true - that would be good.
more...
furiouspride
08-07 11:59 PM
I am stuck in EB3 and want to apply for EB2. How does one find companies willing to do EB2? With desi consulting companies you can ask upfront to the recruiter but with american companies can you do the same?
Can users suggest some companies who are currently doing EB2?
I think now we know why we are so fukked. Both EB2 and EB3! I bow to you sir.
Can users suggest some companies who are currently doing EB2?
I think now we know why we are so fukked. Both EB2 and EB3! I bow to you sir.
nk2
06-04 11:24 PM
How do I send FAX..Please guide me through
http://immigrationvoice.org/index.php?option=com_iv_webfax&task=getContactDetails&Itemid=46
http://immigrationvoice.org/index.php?option=com_iv_webfax&task=getContactDetails&Itemid=46
more...
sc3
11-24 07:13 PM
Well hollow or shallow does it help you?
hmhmh =------- NO!
Stop questioning EB2 or EB3, they both represent EB community. Yes you maybe right about people thinking about EB2 faster thatn EB3,
But have you followed the bulletin lately?
And the ways things are going, do you really think EB 2 will clear fast and then EB3 will gain a faster movement?
Golden Answer? NO
Whether you like it or not, we need each other, the impact is always greater when the intensity applied to it is greater.
You can keep thinking about how hollow you and I are, but the fact is we both need each other. Everyone see's us as EB community, not as EB2 or EB3,
Most of those Morons don't even understand the difference between H1b and green cards,
So get yourself to think EB community as a whole, not EB2 or EB3, or who benefits first?
So, is that a yes on getting USCIS to follow the law? As I said, it is about getting USCIS to follow the law, it is not EB2/EB3 centric. Given that the demand for Eb3/EB2 that is going to see-saw, this should be an action item that will benefit EB on a whole, not a particular sub category.
hmhmh =------- NO!
Stop questioning EB2 or EB3, they both represent EB community. Yes you maybe right about people thinking about EB2 faster thatn EB3,
But have you followed the bulletin lately?
And the ways things are going, do you really think EB 2 will clear fast and then EB3 will gain a faster movement?
Golden Answer? NO
Whether you like it or not, we need each other, the impact is always greater when the intensity applied to it is greater.
You can keep thinking about how hollow you and I are, but the fact is we both need each other. Everyone see's us as EB community, not as EB2 or EB3,
Most of those Morons don't even understand the difference between H1b and green cards,
So get yourself to think EB community as a whole, not EB2 or EB3, or who benefits first?
So, is that a yes on getting USCIS to follow the law? As I said, it is about getting USCIS to follow the law, it is not EB2/EB3 centric. Given that the demand for Eb3/EB2 that is going to see-saw, this should be an action item that will benefit EB on a whole, not a particular sub category.
2010 All in a Saturdays work.
Templarian
03-31 05:41 PM
4 Way tie? :lol:
//edit, I was joking, now it's actually a 4 way tie. :ponder:
//edit, I was joking, now it's actually a 4 way tie. :ponder:
more...
h1techSlave
04-09 09:28 PM
How much does a typical lawyer charges for responding to the Employment verification RFE?
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Saburi
04-18 09:13 PM
thanks for the response.
do they tell before hand what is the reason for interview . what question to expect.
will they look through tax filling and other stuff.
-- my earlier labor had a issue because of education- 3yr BSC course problem--but new one is fine. I think becasue i have 2 I 140 i have some problem.
Please don't worry everything will be fine, hope you get your GC Soon
Best Regards
do they tell before hand what is the reason for interview . what question to expect.
will they look through tax filling and other stuff.
-- my earlier labor had a issue because of education- 3yr BSC course problem--but new one is fine. I think becasue i have 2 I 140 i have some problem.
Please don't worry everything will be fine, hope you get your GC Soon
Best Regards
more...
gcnirvana
05-17 04:15 PM
Gurus,
I need your help in this scenario. I went to India during Mar 06 and got a stamping on my passport till Jun 2010 (based on my I140 approval). But at the POE, the officer stamped my I-94 till Jun 07 as he could only stamp the date that was on my current I-797. He also told me that I can goto the local USCIS office and extend my I-94 till 2010. Is it true? and if so, how would I go about doing that??
Thanks in Advance for all your help.
I need your help in this scenario. I went to India during Mar 06 and got a stamping on my passport till Jun 2010 (based on my I140 approval). But at the POE, the officer stamped my I-94 till Jun 07 as he could only stamp the date that was on my current I-797. He also told me that I can goto the local USCIS office and extend my I-94 till 2010. Is it true? and if so, how would I go about doing that??
Thanks in Advance for all your help.
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ganguteli
06-25 01:18 PM
I am asking people to think before acting.
I am not opposing webfax. I am opposing webfax you are sending to promite illegals. These organizations are going to use you to market them self. Secondly nobody is going to read your fax if you even change the words.
Organizations supporting illegals will do nothing for legals.
If you think that by changing the words , you can use their fax to spread your message, then why dont you go to anti-immigrant websites and change their words and send faxes to support legals. You will not do it because you know anti-immigrant is written on top of the fax.
So why do you want to become a puppet of someone else.
psaxena if you really want to do something, how about collecting the names of all the people in the meeting and post their phone numbers on the forum. Then tell us what to say and we will all call their offices now.
I am not opposing webfax. I am opposing webfax you are sending to promite illegals. These organizations are going to use you to market them self. Secondly nobody is going to read your fax if you even change the words.
Organizations supporting illegals will do nothing for legals.
If you think that by changing the words , you can use their fax to spread your message, then why dont you go to anti-immigrant websites and change their words and send faxes to support legals. You will not do it because you know anti-immigrant is written on top of the fax.
So why do you want to become a puppet of someone else.
psaxena if you really want to do something, how about collecting the names of all the people in the meeting and post their phone numbers on the forum. Then tell us what to say and we will all call their offices now.
more...
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uppaji
03-16 03:38 PM
Hello all,
this is related to getting SSN to H4 people. Now a days everything is getting linked to SSN. Credit Cards, Diver Licencse etc for example. ITIN is not being accepted now a days. Is this a new trend in US or something in place all the time? This makes the lives of H4 people even miserable. Is there any alternative to overcome this problem? Is getting H1 is the only solution for getting SSN?
Please sugegst your comments.
UK.
this is related to getting SSN to H4 people. Now a days everything is getting linked to SSN. Credit Cards, Diver Licencse etc for example. ITIN is not being accepted now a days. Is this a new trend in US or something in place all the time? This makes the lives of H4 people even miserable. Is there any alternative to overcome this problem? Is getting H1 is the only solution for getting SSN?
Please sugegst your comments.
UK.
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lecter
September 17th, 2004, 08:44 PM
Sushi, are you referring to the lens system working across the board? Interestingly they are now making similar lenses to the others that are for their "clipped" sensors. (i.e. small)