Blog

March 10, 2015

Employers – especially small companies and those new to the world of work visas – often assume that obtaining a work-authorized visa status is the responsibility of the foreign worker. It isn’t. Any work visa petition to U.S. Citizenship & Immigration Services (“USCIS”) is by definition a request made by the employer for permission to employ a named foreign worker in a particular job for a specified period of time.

Foreign workers are often anxious to oblige, in order to secure a firm job offer and the promise of visa sponsorship, and they may offer to cover the costs of H-1B visa sponsorship to the sponsoring employer, by payment up front to the attorney, through reimbursement to the employer, via salary deductions over time, or indirectly, through payments made to the employer by a third party. Both federal agencies overseeing the H-1B program view any such payments or deductions as illegal, and each may take agency-specific corrective actions.

The U.S. Department of Labor (USDOL) views payment by the sponsored worker of any legal fees or government filing fees associated with an H-1B petition as an illegal assumption of costs which are the responsibility of the employer under the labor regulations. In an enforcement action, USDOL will subtract any such payments from the amounts actually paid to the worker when determining whether the employer has met its obligation under the Labor Condition Application (LCA) to pay the “actual wage” promised in the LCA.

Thus, an investigation into LCA compliance may result in a finding that the employer has violated its wage obligations. Depending on the number and severity of violations, and the perceived degree of the employer’s disregard for the rules, an LCA investigation by the USDOL Wage & Hour Division which reveals payment of H-1B costs by the sponsored worker(s) may result in fines to the employer, and/or debarment from the H-1B program. The USDOL also views early termination penalties paid by the worker, sometimes called “clawback” agreements, as equally unlawful deductions from the actual wage owed to an H-1B worker.

U.S. Citizenship and Immigration Services (USCIS) takes an equally dim view of any payments by the worker for H-1B petition costs, regarding them explicitly as an indicator of fraud, i.e., as an improper inducement for the employer to provide visa sponsorship. With the exception of the H-1B filing fee for training of U.S. workers, there is no other filing fee that the employer is actually required by law to pay, nor is there support for this definition of fraud in the USCIS regulations, and it is at odds with the practical reality: the foreign worker is just trying to bring the cost of a prospective hire closer to the employer’s cost of hiring a similarly-qualified person who does not need visa sponsorship.

When USCIS conducts a site visit of an H-1B employer – which they may do either while a petition is pending, or at any time thereafter during the petition validity period, after it has been approved – the USCIS investigator will customarily ask to see payroll records for the H-1B worker, and may independently contact the worker directly to ask if he or she paid any of the H-1B petition costs. Site visits are now occurring in roughly 30% of all petitions, and the Service aims to increase that percentage. If any of the parties contacted are unresponsive, and the site visit is inconclusive, USCIS may issue a Request for Evidence, Notice of Intent to Deny, or Notice of Intent to Revoke.

One item of proof commonly demanded in such notices is a pair of sworn statements, one each from the employer and the sponsored worker, affirming that no such payments have been made or promised by the worker, nor received by the employer, including any payroll deductions for the purpose of reimbursing H-1B petition costs.

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