Immigration processes for employment-based visas can be complex and costly. One common question is: who can legally pay for these expenses? Let’s break down the rules for some common visa types.
H-1B Visas
- The employer must pay the following fees:
- All legal fees
- Basic filing fee
- Fraud Prevention and Detection fee
- American Competitiveness and Workforce Improvement Act (ACWIA) fee
- Asylum Program Fee
- The employee may pay:
- Premium processing fee (optional)
- Dependent fees for family members
Important note: If the employee pays any employer-required fees, the employer must reimburse them to avoid violating labor laws.
E-3 Visas (for Australian professionals)
- The employer must pay:
- If filing via USCIS, the base filing fee for Form I-129 and the Fraud Prevention and Detection fee
- Attorney fees related to the preparation and filing of the Labor Condition Application (LCA) and Form I-129
- The employee may pay:
- Premium processing fee (if desired)
- Visa application fee at the U.S. consulate
- Any dependent visa fees for family members
- Attorney fees related to the employee’s personal consultation or representation at the consulate
As with the H-1B, this division of attorney fees follows the general principle that employers must bear the costs of the petition process, while employees can cover personal application expenses.
TN, L, E-1, E-2, O, P Visas
Either the employer or the employee can pay for any or all of these costs. There are no prohibitions on employee paying these costs.
PERM Labor Certification (for EB-2 and EB-3 Green Cards)
- The employer must pay all costs associated with the PERM process, including:
- Recruitment costs
- Attorney fees
- There is no filing fee
- The employee cannot pay for any part of this process
I-140 Petition (Immigrant Petition for Alien Worker)
- Either the employer or the employee can pay the filing fee, asylum program fee, and associated attorney fees
- If the employee pays, it must be voluntary and cannot be a condition of employment
I-485 Application (Adjustment of Status)
- The employee can pay all fees associated with this step, including:
- Attorney fees
- Filing fee
- Biometrics fee
- Medical examination costs
- The employer may choose to pay these fees, but is not required to do so
General Rules
- Employers cannot pass immigration-related costs to employees if doing so would reduce their wages below the required wage level.
- Any agreement for an employee to pay employer-required fees must be truly voluntary and well-documented.
- Employers should consult with an immigration attorney to ensure compliance with all relevant laws and regulations.
Employer Penalties
By regulation, the potential penalties an employer may face for passing H-1B costs onto employees include:
- Civil Monetary Penalty: the Department of Labor can impose a civil monetary penalty of $1,000 for each violation where an employer requires an H-1B nonimmigrant to reimburse or compensate the employer for part or all of the H-1B petition filing fee.
- Administrative Order: the Department of Labor can issue an administrative order requiring the employer to return any amount paid in violation of this clause to the nonimmigrant. If the nonimmigrant cannot be located, the employer may be required to pay the amount to the general fund of the Treasury.
Understanding these rules is crucial for both employers and employees to avoid legal issues and ensure a smooth immigration process. Always consult with a qualified immigration attorney for advice on specific cases, as regulations can change and individual circumstances may vary.