Macaca
04-22 09:07 AM
Passing On H-1b Costs to the Employee? (http://www.hammondlawfirm.com/FeesArticle07.18.2006.pdf) -- Smart Business Practice or DOL Violation?, by Michael F. Hammond and Damaris Del Valle
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 is the party desiring premium process and who will benefit from such processing, 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 is the party desiring premium process and who will benefit from such processing, 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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gcspace
08-13 07:58 AM
I don't know the exact time my application reached on July 2nd.
I havn't yet received my receipts nor checks cashed.
Guess we just need to wait and wait..
I havn't yet received my receipts nor checks cashed.
Guess we just need to wait and wait..
saloni
07-20 04:52 PM
I thought as per the new memo it is advisable to extend your non-immigrant status even if you have filed your AOS and work on EAD.
I know many people who were on H4 and started working as soon as they filed AOS and got EAD's, now in this case there I-94 issued for H4 is still valid.
When their spouse extended their H1B's, they did also extend the H4 petition to get new I-94's.
I know many people who were on H4 and started working as soon as they filed AOS and got EAD's, now in this case there I-94 issued for H4 is still valid.
When their spouse extended their H1B's, they did also extend the H4 petition to get new I-94's.
2011 2 revisions, 590 KB
bhatt
08-05 04:56 PM
I know this is not a good question as there is no time frame for GC process?
But please share your experience;
How many years it could take to get GC if it is started with in Aug. 2008 for
-EB2 category
-EB3 category
I am trying to understand the time (years) difference between two process.
Thanks,
Sanjeev.
It is just depeneds on luck.
My friend Who applied in EB3 after me will be applying for citizenship next year while I am waiting for my I-485.
Another one same company , eb2, same credential as me , later receipt Date, applied after me in eb2, got his GC five months back.
But please share your experience;
How many years it could take to get GC if it is started with in Aug. 2008 for
-EB2 category
-EB3 category
I am trying to understand the time (years) difference between two process.
Thanks,
Sanjeev.
It is just depeneds on luck.
My friend Who applied in EB3 after me will be applying for citizenship next year while I am waiting for my I-485.
Another one same company , eb2, same credential as me , later receipt Date, applied after me in eb2, got his GC five months back.
more...
Pineapple
08-05 11:53 PM
I put in "maybe", because I'm not sure of my schedule.. (I have to travel monday to friday..every freaking week.. I hate it more than you can imagine, but I don't have a choice there).. if my schedule changes, I'll be there for sure. I've updated my profile.
gc_chahiye
09-27 02:05 AM
Actually, I don't think there really is a ROW is there? Isn't it just that 193 country columns isn't practical.
actually as and when a country hits the 7% per-country limit or in general becomes a big consumer of visas, it gets its own column.
China for instance has been in and out. In 1999 it was its own column, became part of ROW in 2002 and now again has its own column:
http://travel.state.gov/visa/frvi/bulletin/bulletin_1350.html
Dominican Republic was there in 1995, but is now part of ROW:
http://dosfan.lib.uic.edu/ERC/visa_bulletin/9502bulletin.html
actually as and when a country hits the 7% per-country limit or in general becomes a big consumer of visas, it gets its own column.
China for instance has been in and out. In 1999 it was its own column, became part of ROW in 2002 and now again has its own column:
http://travel.state.gov/visa/frvi/bulletin/bulletin_1350.html
Dominican Republic was there in 1995, but is now part of ROW:
http://dosfan.lib.uic.edu/ERC/visa_bulletin/9502bulletin.html
more...
seaken75
07-18 12:55 AM
What kind of RFE besides the letter from the OBG doctor?
if u go to the doc, they will perform the the tests that are ok to perform..
Check with doc if they will accept the test results (PAP , HIV , etc) from your obgyns office. These tests are already done during initial stages of pregnancy.
Finally the doc will add a note to the medical report that some tests/shots are omited due to pregnancy.
I went through same thing..
Will the case be accepted with this partial report-- It will be.
Will there be an RFE? -- i dont know.. may be
if u go to the doc, they will perform the the tests that are ok to perform..
Check with doc if they will accept the test results (PAP , HIV , etc) from your obgyns office. These tests are already done during initial stages of pregnancy.
Finally the doc will add a note to the medical report that some tests/shots are omited due to pregnancy.
I went through same thing..
Will the case be accepted with this partial report-- It will be.
Will there be an RFE? -- i dont know.. may be
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sioux
12-21 08:34 AM
There is no limit on the amount of money that a person can bring in. However if a person is carrying $10 k (this includes cash, travellers check, bank draft etc) or >5k in cash then that has to be declared at customs and person should go through Red Channel.
Are there any fees that has to be paid when the amount is declared? And is this for visitors only?
Are there any fees that has to be paid when the amount is declared? And is this for visitors only?
more...
IfYouSeekAmy
05-17 10:14 AM
I used David Cohen at
Canada Immigration - Information on Immigration to Canada (http://www.canadavisa.com/)
Canada Immigration - Information on Immigration to Canada (http://www.canadavisa.com/)
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webm
05-04 08:33 PM
Did anybody had expierence that they missed a appointment for any reason. What to do next? Go to center and request for reschedule or call national service center?
Its a worth to try..give it a shot..take Infopass or call nation server center etc..
Its a worth to try..give it a shot..take Infopass or call nation server center etc..
more...
WeShallOvercome
07-26 02:58 PM
Can any one tell the time between check cleared and Notice issued. My lawyer sent the checks and he will never bother checking his account daily for me. Hence Notice is the only thing i will get.
Same thing here. Even the notice will go to the lawyer's office and they won't bother telling me unless asked a few times.
Other than the physical notice, I guess we can get the receipt numbers by calling them once we see a substantial number of members getting the numbers/notices.
Same thing here. Even the notice will go to the lawyer's office and they won't bother telling me unless asked a few times.
Other than the physical notice, I guess we can get the receipt numbers by calling them once we see a substantial number of members getting the numbers/notices.
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mariusp
08-12 03:37 PM
I submitted my 485 on July 12 and I got an 08/05 LUD on my pending I-140. Could be coincidence or they checked my 140 as part of the initial 485 processing...
more...
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Since1997
08-13 11:02 AM
Here is the update we were expecting to see on Aug 10th and now available (be first one to see): http://www.uscis.gov/files/pressrelease/ReceiptingTimes081007.pdf
I-140(8/3) I-485(8/3)
NSC 7/1 7/1
TSC 7/30 6/26
I-140(8/10) I-485(8/10)
NSC 7/1 7/1
TSC 7/31 6/28
NSC no progress at all
TSC 1day for I-140 & 2days fro I-485
PS: None of the centers entered in Jul 2nd....can't imagine the delays after they enter Jul 2nd....mass number of applications....
I-140(8/3) I-485(8/3)
NSC 7/1 7/1
TSC 7/30 6/26
I-140(8/10) I-485(8/10)
NSC 7/1 7/1
TSC 7/31 6/28
NSC no progress at all
TSC 1day for I-140 & 2days fro I-485
PS: None of the centers entered in Jul 2nd....can't imagine the delays after they enter Jul 2nd....mass number of applications....
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Roger Binny
09-22 06:23 PM
Starting EB2 process will be the same as EB3 process. Your company should have a position open that requires atleast Masters degree or Bachelor + 5 years experience. They'll have to go through recruitment process and document that no US citizen or PR was available to fill the position and then file PERM.
Your EB3 applicaiton will not be affected by this new application.
The whole process upto I-140 may cost $10k-15k
Last point, is not correct, it doesn't cost 10-15k for your company, may probably around 5-6k.
Your EB3 applicaiton will not be affected by this new application.
The whole process upto I-140 may cost $10k-15k
Last point, is not correct, it doesn't cost 10-15k for your company, may probably around 5-6k.
more...
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hoolahoous
11-01 11:58 AM
part 3, item 2: "Have you received public assistance in the United States from any source, including the U.S.Government or any State, county, city, or municipality (other than emergency medical treatment), or are you likely to receive public assistance in the future?"
not sure what your point is. the list clearly states
"Unemployment compensation is also not considered for public charge purposes."
not sure what your point is. the list clearly states
"Unemployment compensation is also not considered for public charge purposes."
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prasadn
07-14 07:30 PM
Can someone please confirm the renewal fee required for EAD application (I-765).
My I-485 receipt date is Aug 2, 2007., notice date Sep '07.
However, my AOS application was filed under the old fee structure ($395) pursuant to July 2007 bulletin.
My company's attorney has submitted the application without fee, and USCIS has issued a receipt notice...i.e., they have not rejected the application.
In 2008, I paid the renewal fee when I applied on my own.
My understanding is that fee is required as per I-765 form instructions (page 7). My EAD is expiring mid of August and have been waiting, but not sure what to do
1. Is there a chance that my EAD application will be approved without fee ?
2. Should I just send checks and write cover letter on why fee is required ?
3. Should I send another application, but this time with the fee ?
Should I
From my understanding, if you filed for AOS after August 17th, 2007, you fall under the new fee structure and you don't have to pay AP/EAD renewal fees. Otherwise, you will have to. If I were you I would re-submit the application with the proper fees rather than waiting for USCIS to sit on the application for a few weeks and reject it.
Thanks
Prasad
My I-485 receipt date is Aug 2, 2007., notice date Sep '07.
However, my AOS application was filed under the old fee structure ($395) pursuant to July 2007 bulletin.
My company's attorney has submitted the application without fee, and USCIS has issued a receipt notice...i.e., they have not rejected the application.
In 2008, I paid the renewal fee when I applied on my own.
My understanding is that fee is required as per I-765 form instructions (page 7). My EAD is expiring mid of August and have been waiting, but not sure what to do
1. Is there a chance that my EAD application will be approved without fee ?
2. Should I just send checks and write cover letter on why fee is required ?
3. Should I send another application, but this time with the fee ?
Should I
From my understanding, if you filed for AOS after August 17th, 2007, you fall under the new fee structure and you don't have to pay AP/EAD renewal fees. Otherwise, you will have to. If I were you I would re-submit the application with the proper fees rather than waiting for USCIS to sit on the application for a few weeks and reject it.
Thanks
Prasad
more...
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cbpds
04-28 01:13 PM
It now seems that Reid will go ahead with the climate bill instead, guess they may have border security in place before looking into the Immig bill.
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shankar_thanu
07-30 08:03 PM
Yes, EAD is bassed on the 485 you had filed. But it is very very risky to use the EAD even before I 140 is approved, since if by chance it is not approved or some very difficult query comes, and 140 doesnot get approved, you lose your H1 or L1 or whatever current status you are currently in, if you had begun using EAD(since the 485 is based on future approvablity of the 140 and once 140 gets denied, the 485 and EAD automaticaly gets denied)
What exactly does it mean when you say "Use the EAD"? My H1 is valid for next 3 yrs and i dont want to use the EAD (hopefully I'll get it), how do I make sure I dont use the EAD. Does it cause confusion in port of entry when you have both a vlid H1 stamping and EAd and AP?
thanks.
What exactly does it mean when you say "Use the EAD"? My H1 is valid for next 3 yrs and i dont want to use the EAD (hopefully I'll get it), how do I make sure I dont use the EAD. Does it cause confusion in port of entry when you have both a vlid H1 stamping and EAd and AP?
thanks.
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neeidd
11-10 04:08 PM
AP
I485 Receipt Notice
EAD(just in case)
thats all you need
Thanks for your reply, dj9533
I485 Receipt Notice
EAD(just in case)
thats all you need
Thanks for your reply, dj9533
gchope2k6
03-17 12:16 PM
Hello all,
Me and my wife are planning to buy a home, we are in 485 stage and both are working and have EAD. Do you think there can be issues for getting a joint loan on EAD ? I still have my H1, but my wife never had an H1 before, so she is working on EAD. Do lenders consider EADs for mortgages ? Did you have any issues with this ?
Thank you.
Me and my wife are planning to buy a home, we are in 485 stage and both are working and have EAD. Do you think there can be issues for getting a joint loan on EAD ? I still have my H1, but my wife never had an H1 before, so she is working on EAD. Do lenders consider EADs for mortgages ? Did you have any issues with this ?
Thank you.
insbaby
09-18 06:48 PM
Two IDIOTS gave me red dots and these comments:
--------------
H-1B and working overtime 08-21-2008 11:31 PM ask the doctors who work more than 80 hrs a week
H-1B and working overtime 08-21-2008 09:58 PM Who gave youa H1 Visa, you dumbo?
--------------
I do not understand what was wrong with my question here. I did not know there are idiots roam around this forum and give people RED DOT for no reason. I wish there is a way to know who gave those dots and comments. Get a life you idiots.
Over time for the same employer is not all an issue. Almost all H1Bs should go thru this and many of them stay at work for months.
--------------
H-1B and working overtime 08-21-2008 11:31 PM ask the doctors who work more than 80 hrs a week
H-1B and working overtime 08-21-2008 09:58 PM Who gave youa H1 Visa, you dumbo?
--------------
I do not understand what was wrong with my question here. I did not know there are idiots roam around this forum and give people RED DOT for no reason. I wish there is a way to know who gave those dots and comments. Get a life you idiots.
Over time for the same employer is not all an issue. Almost all H1Bs should go thru this and many of them stay at work for months.
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