Can the foreign applicant pay the H-1B filing fees?

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Question:

In reviewing candidates for a position I'm trying to fill, I've determined that the person I want to hire requires H-1B visa sponsorship. I'm new to immigration sponsorship and have heard different things about who must pay the legal and filing fees. Do I have to pay all of these fees? If yes, can I require the employee to reimburse the company if we end up having to let this person go, or if he quits, before the H-1B visa expires?

Answer:

The Department of Labor (DOL) regulations require the employer to pay its "business expenses," which it describes as "attorney fees and other costs" incurred in preparing and filing the Labor Condition Application (preliminary step in the H-1B process) and H-1B petition.

What this means as a practical matter is that yes, you as the employer must pay the legal fees, filing fees, and any other costs you assume in sponsoring the H-1B worker. If you require the employee to pay any of these fees, the DOL will find that you have reduced the employee's wages by the corresponding amount and require you to pay the employee back wages for the "unauthorized deduction."

If the employee leaves your organization before an agreed-upon date, you may seek to recoup the "liquidated damages" that the termination causes to your business. The amount must be stated in the offer letter or employment contract and may not be a penalty. The laws of your state will control whether the amount is reasonable and qualifies as liquidated damages.

As a practical matter, it's worth considering whether you ever intend to enforce a liquidated damages clause. It very well may end up costing more to seek enforcement (collection agent, lawsuit, and so on) than the amount you seek to recover. Most employers simply treat H-1B expenses as a normal cost of doing business.

Finally, also keep in mind that if you terminate the H-1B employee, you must offer to pay for his or her return transportation to the last country of residence abroad.

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