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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StarSun
08-17 03:14 PM
I have never joined to IV conference call so I don't know which number to dial and also if any pin or passcode number is required. Please give details of conference call.
The conference dial in details will be posted by tomorrow.
The conference dial in details will be posted by tomorrow.
yabadaba
10-19 01:13 PM
I was just thinking, the wastage of visa numbers we see, is that basically due to the per country quota. The rule that no country can have more than X% of GC's in a year, would mean that even though there are visa's available, they cannot be alloted due to that per country limit.
Anyway the smaller number of application is good news.
-AD
thats not true...ac21 is under suspension because eb3 row is retrogressed...once its not, the ac21 trickle down of visa numbers applies.
Anyway the smaller number of application is good news.
-AD
thats not true...ac21 is under suspension because eb3 row is retrogressed...once its not, the ac21 trickle down of visa numbers applies.
2011 Hilarious Funny Cartoons:
Sri_
09-26 01:11 PM
Just FYI, the online status of my cases show that the receipts were sent on 08/31 and I haven't received them till now. Its almost 26 days now.
Thanks
Thanks
more...
pappu
06-02 08:51 AM
I think that instead of exhausting our energy on this issue, we better think how to make progress in our fight against injustice. And to all those who are using an abusing language .... please show your guts when you go for your next visa stamping or when entering the United States on a port of entry and try to use the similar language.... you surely will get an answer/lesson you will remember for rest of your life.
Yes Agreed.
Moving forward, we will refrain from answering anyone who is banned. It is a waste of time and energy that can be used for something that helps our real and contributing members. But whatever is being posted on this thread will now give a sense to others of what goes on in moderating these forums and what we do is for a reason and in the interest of the forum and the organization.
If someone feels that they are banned in error they must directly contact us. Make sure you are not anonymous. Because we do not respond to anonymous inquiries. http://immigrationvoice.org/index.php?option=com_content&task=view&id=76
The thread is now closed and made a sticky for future reference.
Yes Agreed.
Moving forward, we will refrain from answering anyone who is banned. It is a waste of time and energy that can be used for something that helps our real and contributing members. But whatever is being posted on this thread will now give a sense to others of what goes on in moderating these forums and what we do is for a reason and in the interest of the forum and the organization.
If someone feels that they are banned in error they must directly contact us. Make sure you are not anonymous. Because we do not respond to anonymous inquiries. http://immigrationvoice.org/index.php?option=com_content&task=view&id=76
The thread is now closed and made a sticky for future reference.
lrindy
09-19 12:21 PM
Relax guys. My online status still showing "Fingerprinting fee rejected and case is in suspense" despite having finger printing done at ASC a year back.
I cannot confirm or deny the following piece of gossip but...
A mistake has been made on the system for payments. Some bright spark for got to put a so called "where" statement into the billing system for USCIS after the pricing structure changes went into effect. I am told this is being dealt with, but some applicants may find incorrect fees on their accounts pop up. Each lawyer will have different way of dealing with this problem. If you are pre price increase and have a suspended case; this maybe the reason for it...
Good luck to you all. This is just a thought/gossip...
LRIndy.;)
I cannot confirm or deny the following piece of gossip but...
A mistake has been made on the system for payments. Some bright spark for got to put a so called "where" statement into the billing system for USCIS after the pricing structure changes went into effect. I am told this is being dealt with, but some applicants may find incorrect fees on their accounts pop up. Each lawyer will have different way of dealing with this problem. If you are pre price increase and have a suspended case; this maybe the reason for it...
Good luck to you all. This is just a thought/gossip...
LRIndy.;)
more...
krishnagk
09-18 10:46 AM
HI JunRN
I have following in my receipt notice if I-765 receipt "Class requested : C09"
what does C09 means and is it correct type?
Also in my I-485 receipt after amount it says " Section : UNKNOWN" and priority date box is NULL.
Should I worry about theses?
Thanks
I have following in my receipt notice if I-765 receipt "Class requested : C09"
what does C09 means and is it correct type?
Also in my I-485 receipt after amount it says " Section : UNKNOWN" and priority date box is NULL.
Should I worry about theses?
Thanks
2010 HILARIOUS GIRLS!
yagw
09-26 06:31 PM
Q1) i am applying for the first time for my i-485 that requires i-693 form.
My question is, do i have to submit my i-485 together with my i-693, or do i have to apply first the i-485 form and then wait until i get a respond from the USCIS.
I-693 should be filed along with your I-485.
I was told that i am supposed to wait for the respond from the USCIS after applying my
i-485, and the USCIS will designate the doctors for my I-693, which means i cannot choose any doctors on my own. But in this reform , according to the users' discussion, so far i understand that you can apply for the i-693 form regardless if you have already applied for the i-485 form.
Q2) To simplify my second question, while i am applying for my i-485, and before its submission to the USCIS, can i start making an appointment with my local Surgeon?
You can. And the civil surgeon should be USCIS designated. Use the civil surgeon locator to find one near you:
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV
You can get your I-693 done any time you want. One thing you need to watch out for is, there is a validity date on I-693 (like a year or something). But if you're filing I-485 in a month or so, it should be ok.
BTW, it will take a while to get your immunization records etc in order, so I would suggest you get it started like a month before you file I-485.
My question is, do i have to submit my i-485 together with my i-693, or do i have to apply first the i-485 form and then wait until i get a respond from the USCIS.
I-693 should be filed along with your I-485.
I was told that i am supposed to wait for the respond from the USCIS after applying my
i-485, and the USCIS will designate the doctors for my I-693, which means i cannot choose any doctors on my own. But in this reform , according to the users' discussion, so far i understand that you can apply for the i-693 form regardless if you have already applied for the i-485 form.
Q2) To simplify my second question, while i am applying for my i-485, and before its submission to the USCIS, can i start making an appointment with my local Surgeon?
You can. And the civil surgeon should be USCIS designated. Use the civil surgeon locator to find one near you:
https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV
You can get your I-693 done any time you want. One thing you need to watch out for is, there is a validity date on I-693 (like a year or something). But if you're filing I-485 in a month or so, it should be ok.
BTW, it will take a while to get your immunization records etc in order, so I would suggest you get it started like a month before you file I-485.
more...
StarSun
08-17 08:28 AM
The conference call will be for 45 min to an hour, take advantage of this opportunity...
hair hilarious
amar123
07-30 02:42 PM
Thats within the June 01, 2006 cutoff for EB2 India.
Yes , but Mar 06 is beyond Apr 04 for July 2008 dates, so,indeed there is traction this month!!!!!, that is why it is interesting
Yes , but Mar 06 is beyond Apr 04 for July 2008 dates, so,indeed there is traction this month!!!!!, that is why it is interesting
more...
anilsal
12-01 09:30 AM
web site http://hammondlawgroup.blogspot.com/
3. Some GOP members do not want any appropriations measures � including the 12,000-15,000 band-aid or a more robust SKIL Bill � attached to any appropriations bill. In other words, they want to pass a Continuing Resolution (CR) and then they just want to go home. The CR effectively extends the funding for the Iraq War into the New Year and then lets the next Congress deal with it.
Am I surprised with this?
3. Some GOP members do not want any appropriations measures � including the 12,000-15,000 band-aid or a more robust SKIL Bill � attached to any appropriations bill. In other words, they want to pass a Continuing Resolution (CR) and then they just want to go home. The CR effectively extends the funding for the Iraq War into the New Year and then lets the next Congress deal with it.
Am I surprised with this?
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omahaguy
04-05 10:07 PM
I agree with you. I was bit tense to see RFE email since it is my first RFE. I will try to avoid giving urgent words.
Thanks anyway for your reply.
Thanks anyway for your reply.
more...
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ajcates
03-18 01:28 PM
I don't at all like what it implies, but "Have you?" is rather beautifully designed. Got my vote.
What do you think it implies? I think what makes it so interesting is the fact that its a little controversial and actually makes you think.
It got my vote as well.
What do you think it implies? I think what makes it so interesting is the fact that its a little controversial and actually makes you think.
It got my vote as well.
tattoo hilarious headlines 201015
gk_2000
09-22 10:31 PM
There is only one that can help legals: It's the media
Someone needs to highlight the points of difference between legals and illegals regarding how they are being treated
Sometimes I feel all forms of lobbying counter-productive, as our "friends" are not strong/noisy enough. It would be better if a loud anti-illegal compares legals and illegals. It could be anyone, even Hannity
Someone needs to highlight the points of difference between legals and illegals regarding how they are being treated
Sometimes I feel all forms of lobbying counter-productive, as our "friends" are not strong/noisy enough. It would be better if a loud anti-illegal compares legals and illegals. It could be anyone, even Hannity
more...
pictures See rest of the Hilarious Baby
$eeGrEeN
07-13 12:57 PM
https://addons.mozilla.org/en-US/firefox/addon/115
add-on to autorefresh for all those Firefox users out there ....
that's what i have ...
add-on to autorefresh for all those Firefox users out there ....
that's what i have ...
dresses this hilarious collection
kaisersose
08-24 01:11 PM
Can someone answer this? If you get your EAD before six months of filing, do you still have to wait 6 months to benefit from AC21? Or, can you change employers immediately after you get EAD, without waiting 6 months?
AC21 has nothing to do with EAD.
AC21 has nothing to do with EAD.
more...
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webm
12-19 03:12 PM
Bit sluggish at the year end, but loads of requirements lined up for January next year.
Hoping positive on this...In first Q atleast by March,09!! the market will be back from the backlogged IT projects boom..??
Hoping positive on this...In first Q atleast by March,09!! the market will be back from the backlogged IT projects boom..??
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ksircar
05-24 12:43 PM
Webfax # 15 sent.
hairstyles Teen Gets An STD: hilarious
IVMovies
11-20 01:56 PM
Dear IV Members,
First of all, this is not an official request from IV Core team.
Any one interested in participating in making Movie/Documentary please let me know.
I would like to gather a group of individuals who are local to Bayarea and are creative in writing, acting etc.
Even you are non local if you want to join with us you are most welcome.
PM me for more details.
We need more characters and also members for pre-production & post-production work.
Any creative ones with musical skills are highly required.
Thanks
Member
First of all, this is not an official request from IV Core team.
Any one interested in participating in making Movie/Documentary please let me know.
I would like to gather a group of individuals who are local to Bayarea and are creative in writing, acting etc.
Even you are non local if you want to join with us you are most welcome.
PM me for more details.
We need more characters and also members for pre-production & post-production work.
Any creative ones with musical skills are highly required.
Thanks
Member
vijju123
05-01 01:37 AM
Very well written blog
anilsal
12-01 01:03 AM
Guys,
The reality is that we are just being played upon by the companies and the US govt regarding green cards. Employers know that we are not going to budge from our jobs to maintain the coveted priority date and the government is in no big hurry to reform the system as they can collect taxes from us without being accountable to us.
I think Democrats are also going to drag the immigration issue as seen by the article below :
http://www.suntimes.com/news/otherviews/151357,CST-EDT-Perez28.article
I do not mean to doubt IV, but the writing is on the wall that our lobbying efforts are not going to go too far.
For all of you single people out there, the only fastest option is to marry a US girl/guy. For all those who are married, the choices are simple, forget the American dream and adopt a Canadian or Australian dream or endure the uncertainty of a green card application.
I have reached the conclusion that I cannot bear this uncertainty any more and therefore, I am pursuing other options. Ciao...Good luck to all those waiting for a GC!
I am unsure whether things will be all rosy once you explore the other attractive options. Think of the time you have already invested here in the US. Will you give up without a fight?
The reality is that we are just being played upon by the companies and the US govt regarding green cards. Employers know that we are not going to budge from our jobs to maintain the coveted priority date and the government is in no big hurry to reform the system as they can collect taxes from us without being accountable to us.
I think Democrats are also going to drag the immigration issue as seen by the article below :
http://www.suntimes.com/news/otherviews/151357,CST-EDT-Perez28.article
I do not mean to doubt IV, but the writing is on the wall that our lobbying efforts are not going to go too far.
For all of you single people out there, the only fastest option is to marry a US girl/guy. For all those who are married, the choices are simple, forget the American dream and adopt a Canadian or Australian dream or endure the uncertainty of a green card application.
I have reached the conclusion that I cannot bear this uncertainty any more and therefore, I am pursuing other options. Ciao...Good luck to all those waiting for a GC!
I am unsure whether things will be all rosy once you explore the other attractive options. Think of the time you have already invested here in the US. Will you give up without a fight?