H-1B Worker Who Quits Cannot Be Required to Pay Back H-1B Fees

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

May 21, 2018

An H-1B Visa allows a non-immigrant worker to work temporarily in the US for a sponsoring employer.  An employer must petition for an H-1B Visa on the employee’s behalf; an employee can’t do it, and the costs of petitioning for an H-1B Visa are substantial.  Filing fees for upcoming Fiscal Year ’19 (which begins on October 1, 2018) are between $1,700 and $4,000, and the legal costs associated with obtaining the Labor Condition Application (“LCA”), gathering all relevant information, and preparing the lengthy H-1B petition could double the cost of the filing fees.  It may surprise many employers to know that if an employee is awarded an H-1B Visa but the employment relationship doesn’t work out, the employer cannot recoup those costs.

Offer Letters with Reimbursement Requirements Can Get Employers In Hot Water

In employment offers made to non-immigrant workers, employers often agree to petition for an H-1B Visa on the worker’s behalf.  On many occasions, the employer includes language requiring the employee to reimburse the employer for some or all of the fees associated with the H-1B Visa if the employee voluntarily resigns from employment after the employer obtains the visa.  That requirement is not legal.

H-1B Workers Can Never Be Required to Pay or Reimburse an Employer for Certain Costs

Although many employers are not aware of it, in 2009 the US Department of Labor Wage and Hour Division issued a Fact Sheet outlining the rules about deductions from an H-1B workers’ pay.  In summary, an employer can never require the H-1B worker, through payroll deduction or otherwise, to pay any penalty for the employee’s failure to complete the full employment period, any part of the training and processing fees imposed by USCIS, or any part of the Fraud Protection and Detection fee that employers must submit to USCIS with the H-1B petition.  In addition, an employer may not take any deduction for an employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate approved in the LCA.  That includes any expenses or fees directly related to the filing of the LCA, premium processing fees, tools and equipment, and traveling while on the employer’s business.

Some Deductions are Permissible 

Permissible deductions that may bring an employee’s pay below the required wage rate include those required by law, such as income taxes, and those that are “reasonable and customary,” such as insurance premiums.  Additionally, with the H-1B worker’s voluntary, written authorization, employers can deduct for expenses incurred principally for the benefit of the employee in an amount that does not exceed the fair market value or actual cost (whichever is lower) of the expense, but only as long as the amount does not exceed the limits for garnishments.

If you are concerned about the costs associated with obtaining an H-1B Visa when the employment relationship might not work out, you should explore other legal methods of employing foreign workers beyond the H-1B Visa.

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