H1B Employers Need to Pay Attorney Costs, and USCIS Visa Filing Fees
We're often asked by clients "who is responsible for paying the H1B visa application and filing fees?"
Although the USCIS filing and processing fees are required as an obligation to be paid by the employer company, the cost for hiring an immigration attorney to prepare the visa documents and forms correctly are often in question.
Generally, most end/direct companies that have solid track records of sponsoring H1B workers pay all of the associated visa costs and fees. However, more commonly within agencies/consulting firms/body shops who employ H1B workers they often ask the worker to pay a share of the costs.
A recent settlement announced by the Department of Labor (DOL) demonstrates the dangerous peril H1B employers face when found to be underpaying their H1B workers, or forcing their employees to pay attorney costs and filing fees.
On June 12, 2012, the DOL announced that Semafor Technologies was to pay workers $741,288 in back wages following an investigation by the DOL’s Wage and Hour Division that found serious violations of the H1B visa requirements.
An investigation conducted by the DOL determined that Semafor Technologies failed to pay 54 H1B workers for periods of time during which they were nonproductive because the company did not assign any work, a practice commonly referred to as “benching”.
Additionally, five workers were not reimbursed for various processing fees related to their employment, and 14 were not reimbursed for processing fees or paid for periods without assigned work.
The Director of the DOL’s Division office in Atlanta stated:
“As demonstrated by the resolution of this case, we are using all tools available to remedy violations, promote accountability, and ensure a level playing field for law-abiding employers and legitimate users of the foreign guest worker programs.”
Employers are not allowed to “bench” H1B workers. They must continue to pay workers even if there is no work to be performed.
Employers also are prohibited from forcing an employee to take an unpaid leave-of-absence.
Additionally, employers cannot force employees to pay business expenses, which include fees associated with sponsoring someone for H1B status.
Employers who are in violation of these provisions are subject to fines and penalties, including being forced to pay back wages to its H1B workers, and may be barred from using the H1B program altogether.
We strongly suggest that employers pay all expenses related to the processing of H1B visa petitions including attorneys’ fees and government filing fees.
The Semafor Technologies settlement demonstrates that employers who pass along any part of these fees to their H1B employees are putting themselves at risk and may ultimately pay a heavy price.