gcdreamer05
02-05 01:06 PM
You cannot use the experience gained in the current position , so subract that and then do the MS + watever was present before the current position and go for it.
Also check some thread on IV which talks about EB2 rules changed or something with respect to job codes etc...
Also check some thread on IV which talks about EB2 rules changed or something with respect to job codes etc...
wallpaper *Title quote from Patti Smith,
sweet_jungle
01-10 06:17 PM
What do you mean by
"Can an attorney force me to file AC-21 even if i dont want to?"
Are you asking if the attorney would file the change of employment letter?
Please clarify your question
What I am trying to say is if the attorney prefers Ac-21 filing without waiting for RFE, while I may want to wait for RFE if i am sure sponsoring employer wont withdraw 140, whose word will prevail?
"Can an attorney force me to file AC-21 even if i dont want to?"
Are you asking if the attorney would file the change of employment letter?
Please clarify your question
What I am trying to say is if the attorney prefers Ac-21 filing without waiting for RFE, while I may want to wait for RFE if i am sure sponsoring employer wont withdraw 140, whose word will prevail?
sam_hoosier
05-18 01:13 PM
I want to purchase an house in Washington DC/MD/VA. My office is close to Rockville. Please recommend the best place to buy an house based on the following criteria.
1> Very good school district
2> Low property tax
3> Very low crime rate
4> Rental value should be same as mortgage amount+insurance+PMI+property tax
5> Property values should be in 300K range max
6> Lot of Indians
9> Maximum distance to DC should not exceed 30 miles
10> Close to shopping places
Dont look at VA - commute to MD will be killing.
DC is expensive.
Look at Frederick, Gaithersburg, Rockville, Bethesda in MD
1> Very good school district
2> Low property tax
3> Very low crime rate
4> Rental value should be same as mortgage amount+insurance+PMI+property tax
5> Property values should be in 300K range max
6> Lot of Indians
9> Maximum distance to DC should not exceed 30 miles
10> Close to shopping places
Dont look at VA - commute to MD will be killing.
DC is expensive.
Look at Frederick, Gaithersburg, Rockville, Bethesda in MD
2011 One difference between Lust
walking_dude
12-05 02:10 PM
I can understand AILA/AILF not taking interest in class action (WOM money). May be ACLU will be more receptive?
Same here, as I've got my GC recently and my citizenship application is 5 years away. On top of this, an individual cannot file a class-action lawsuit, it should be an organized group. Otherwise I would've done it. For whatever reasons neither ACLU nor AILA/AILF want to take on I-485 class action.
Same here, as I've got my GC recently and my citizenship application is 5 years away. On top of this, an individual cannot file a class-action lawsuit, it should be an organized group. Otherwise I would've done it. For whatever reasons neither ACLU nor AILA/AILF want to take on I-485 class action.
more...
funny
09-22 04:04 PM
Keep that cell phone handy and take 20 mins from your time today..
ak_2006
05-05 06:04 PM
On home page clikc on forums. Then select a topic. You should see new thread there.
Thanks for the quick reply...Got it.
Thanks for the quick reply...Got it.
more...
chadoubra
06-21 12:41 PM
my h1b expires in october 2008. my passport expires in july 2007 and at the POE (Dallas), i received an I-94 till July 10th 2007.
i now have a new passport and went to the dallas/fort worth airport CBP to get the date corrected to october 2008. i took my I-797 with me and showed it to them. they said i have to file an I-539 with USCIS. several people managed to get the same situation remedied at a CBP. has anyone had success at another texas CBP? please help!
i now have a new passport and went to the dallas/fort worth airport CBP to get the date corrected to october 2008. i took my I-797 with me and showed it to them. they said i have to file an I-539 with USCIS. several people managed to get the same situation remedied at a CBP. has anyone had success at another texas CBP? please help!
2010 where love and lust aren#39;t
LostInGCProcess
09-02 10:57 AM
There is place in the I-9 , Alien Authorized to work unitll, you need to provide the H1 information instead of the EAD information. Also instead of Alien#, you need to provide Admissible # which is on I-94 of new H1B. When some one submit I-9 form you need to show the Passport and you H1B copy. That way you are sure that you are using H1B.
You are absolutely correct. But say, I have EAD, want to use it from next month, October. How do you do, even though your H1 is valid till, say, july 2011? That's the question.
Do you inform USCIS? What factor changes the status from H1 to EAD on your, say, new job cause i want to work on EAD rather then H1?
You are absolutely correct. But say, I have EAD, want to use it from next month, October. How do you do, even though your H1 is valid till, say, july 2011? That's the question.
Do you inform USCIS? What factor changes the status from H1 to EAD on your, say, new job cause i want to work on EAD rather then H1?
more...
Anders �stberg
January 17th, 2005, 05:03 AM
From last nights local game. Some pictures from the seats, some from the penalty box area. ISO1600, 1/500s and f/2 or f/2.8 in manual mode. Sports really is a challenge, I still don't get many keepers - I noticed this time I tend to rush things and probably cause a lot of bluriness through camera shake, and don't follow the players well enough for the AF to lock on reliably. Practice, practice...
Comments are very welcome! :)
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0568.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0596.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0605.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0621.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0609.jpg
Comments are very welcome! :)
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0568.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0596.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0605.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0621.jpg
http://www.andersostberg.com/fotogalleri/albums/HaningeHockey_2005-01-16/JH5Q0609.jpg
hair April 6, 2011
eilsoe
10-22 04:44 PM
AAahhh....
I think I remember something now yes...
I was in that basement... d*mn... then i was close to finding him...
I think I remember something now yes...
I was in that basement... d*mn... then i was close to finding him...
more...
xgoogle
06-25 10:52 AM
Thanks so much for clearing our doubts.
hot True love is one of the
logiclife
08-20 04:33 PM
Some member has lost the opportunity to file 485 before Aug 17th coz the employer and the lawyer didnt respond and responded after Aug 17th. (How convenient. A lot of employers suddenly found vacation time to take between July 17 and August 17th. Suddenly, between July 17 and Aug 17, the voicemails stopped working and the calls never got returned. Nice. )
The whole thing is here : http://immigrationvoice.org/forum/showthread.php?t=12576
This is something for everyone to watch and learn:
I tried to contact the attorney so badly until Aug 16th, but he never responded. I was able to get hold of him only on Aug 17th. I guess he was directed by my employer so.
The cardinal rule of working with untrustworthy employers is that you need to use ONLY YOUR OWN LAWYER.
The lawyer must be having you as client and also must not have your employer as his client for other cases matters. ONLY then, the lawyer will be working in YOUR interest and not in your employer's interest.
I think people browsing this site by this time, must have learned one thing and I sure have said that a million times.
IF YOU CANNOT TRUST YOUR EMPLOYER 100% THEN YOU NEED TO SHELL SOME $$$ AND HIRE YOUR OWN LAWYER FOR ALL LEGAL MATTERS AND ALL PAPERWORK, FILING, PETITIONING ETC. EVEN H1 RENEWALS.
At the end of the day, between your first day in United States and the day you get your GC, it will cost you nearly 10,000 to have your own lawyer and never use the company-provided free lawyer.
Having your own lawyer means:
1. You pay him, you employ him, he is accountable to you, not your employer.
2. He/she works in your interest, not the employer's interest.
3. If your employer is not co-operating, you will know right away.
4. Your employer would have to come clean and truthful about his intentions of not filing 485. When you have company's lawyer, then the company's lawyer is not going to listen to you. WHY? Because you are not the one paying him. Your employer is.
5. Full transparency and visibility, whenever anything is filed, receipt is issued, RFE comes, reply to RFE goes, etc. With employer's lawyer, you have 0 visibility and you will land in situations mentioned above.
The money you think you are saving with getting a "Free" lawyer is going to cost you much more. The employers are not stupid to provide you free lawyers. The reason they tend to have free lawyers for you is so that they can have total control over your immigration case. Its "Free" for you, but not really. Coz at the end of the day, it costs 10 times more in terms of lost opportunities and delayed immigration. The employers are in the business of doing business and for them, providing you a free lawyer is COST OF DOING BUSINESS because by incurring that cost, they maximize THEIR OWN OPPORTUNITIES to retain you on their payroll for the longest possible time. You may think you are saving money, but this isnt about money.
Its about opportunities and the battle for most opportunities for oneself and the least opportunities for the other guy.
So when you end up spending 10,000 out of pocket on lawyer's fees for H1 renewals, labor, 140, 485 etc, consider that as an opportunity cost.. Just like you need to spend $500 per month on gas and car to be able to get to work, you need to spend a few thousand in order to be able to get opportunities you really want in this country.
One more thing before you go out and hire your own lawyer:
After reading this, if ever you are in search of hiring your own lawyer for immigration needs, make sure that the lawyer has never done any business with your employer. Otherwise it defeats the purpose. You need to ask your new attorney, if he has done or planning to do business with your employer. If he has, or plans to, then dont hire him. Why? Because its obviously conflict of interest. You are asking your lawyer to work in your interest (faster and mistake-free GC filing) and your employer wants to opposite. Its is unethical for lawyers to work for 2 clients with conflicting interests. Also, ask your lawyer before hiring that YOU NEED HIS FULL DISCLOSURE if he plans to do business with your employer. That way, you know that your lawyer is acting in your interest without any possible conflicts. The problem with getting your employer's recommended lawyer is that your employer pays him nearly 50-60 thousand dollars a year in fees, you are a $1000 a year client. Obviously, at the nudging of your employer, suddenly your 485 might get screwed up by your lawyer.
The whole thing is here : http://immigrationvoice.org/forum/showthread.php?t=12576
This is something for everyone to watch and learn:
I tried to contact the attorney so badly until Aug 16th, but he never responded. I was able to get hold of him only on Aug 17th. I guess he was directed by my employer so.
The cardinal rule of working with untrustworthy employers is that you need to use ONLY YOUR OWN LAWYER.
The lawyer must be having you as client and also must not have your employer as his client for other cases matters. ONLY then, the lawyer will be working in YOUR interest and not in your employer's interest.
I think people browsing this site by this time, must have learned one thing and I sure have said that a million times.
IF YOU CANNOT TRUST YOUR EMPLOYER 100% THEN YOU NEED TO SHELL SOME $$$ AND HIRE YOUR OWN LAWYER FOR ALL LEGAL MATTERS AND ALL PAPERWORK, FILING, PETITIONING ETC. EVEN H1 RENEWALS.
At the end of the day, between your first day in United States and the day you get your GC, it will cost you nearly 10,000 to have your own lawyer and never use the company-provided free lawyer.
Having your own lawyer means:
1. You pay him, you employ him, he is accountable to you, not your employer.
2. He/she works in your interest, not the employer's interest.
3. If your employer is not co-operating, you will know right away.
4. Your employer would have to come clean and truthful about his intentions of not filing 485. When you have company's lawyer, then the company's lawyer is not going to listen to you. WHY? Because you are not the one paying him. Your employer is.
5. Full transparency and visibility, whenever anything is filed, receipt is issued, RFE comes, reply to RFE goes, etc. With employer's lawyer, you have 0 visibility and you will land in situations mentioned above.
The money you think you are saving with getting a "Free" lawyer is going to cost you much more. The employers are not stupid to provide you free lawyers. The reason they tend to have free lawyers for you is so that they can have total control over your immigration case. Its "Free" for you, but not really. Coz at the end of the day, it costs 10 times more in terms of lost opportunities and delayed immigration. The employers are in the business of doing business and for them, providing you a free lawyer is COST OF DOING BUSINESS because by incurring that cost, they maximize THEIR OWN OPPORTUNITIES to retain you on their payroll for the longest possible time. You may think you are saving money, but this isnt about money.
Its about opportunities and the battle for most opportunities for oneself and the least opportunities for the other guy.
So when you end up spending 10,000 out of pocket on lawyer's fees for H1 renewals, labor, 140, 485 etc, consider that as an opportunity cost.. Just like you need to spend $500 per month on gas and car to be able to get to work, you need to spend a few thousand in order to be able to get opportunities you really want in this country.
One more thing before you go out and hire your own lawyer:
After reading this, if ever you are in search of hiring your own lawyer for immigration needs, make sure that the lawyer has never done any business with your employer. Otherwise it defeats the purpose. You need to ask your new attorney, if he has done or planning to do business with your employer. If he has, or plans to, then dont hire him. Why? Because its obviously conflict of interest. You are asking your lawyer to work in your interest (faster and mistake-free GC filing) and your employer wants to opposite. Its is unethical for lawyers to work for 2 clients with conflicting interests. Also, ask your lawyer before hiring that YOU NEED HIS FULL DISCLOSURE if he plans to do business with your employer. That way, you know that your lawyer is acting in your interest without any possible conflicts. The problem with getting your employer's recommended lawyer is that your employer pays him nearly 50-60 thousand dollars a year in fees, you are a $1000 a year client. Obviously, at the nudging of your employer, suddenly your 485 might get screwed up by your lawyer.
more...
house Cash Cash - Love Or Lust (2011
karthkc
03-20 12:04 PM
RoseBall,, here is my query..Please answer
I got RFE on 140 asking
all my expereince letter proir to 2002 ( I came US in 1999) and By the time I worked with two companys.
Now I got one company exp letter and other one closed and I couldn't able to get the letter. as per sources and attorney advice I am submitting coleague affidavit.
and also they asked me all w2's where I worked only few months in 2004 and w2 amount is not that great.
I am still fearing how do USCIS take in to consideration when they finalise the case.
Do you think all these are substantiate my case , or they may come with another RFE or denial..
Please advise me what I want to do, I haven't submitt my case yet.
Thanks
You should be okay on the exp letters, but it will be your 2004 W2 that may turn out to be an issue.
If you have been without pay from longer than 6 months in 2004, then you have a serious status issue and you will need to check with a good attorney to handle that..
My recommendation is to get a good immi attorney who has handled these kinds of cases before and have them do your paperwork....
I got RFE on 140 asking
all my expereince letter proir to 2002 ( I came US in 1999) and By the time I worked with two companys.
Now I got one company exp letter and other one closed and I couldn't able to get the letter. as per sources and attorney advice I am submitting coleague affidavit.
and also they asked me all w2's where I worked only few months in 2004 and w2 amount is not that great.
I am still fearing how do USCIS take in to consideration when they finalise the case.
Do you think all these are substantiate my case , or they may come with another RFE or denial..
Please advise me what I want to do, I haven't submitt my case yet.
Thanks
You should be okay on the exp letters, but it will be your 2004 W2 that may turn out to be an issue.
If you have been without pay from longer than 6 months in 2004, then you have a serious status issue and you will need to check with a good attorney to handle that..
My recommendation is to get a good immi attorney who has handled these kinds of cases before and have them do your paperwork....
tattoo and songs of love and lust
saji007
05-03 09:45 AM
1. No need to apply extn with the new employer, when you file for H1-Transfer you get 3 year extenstion
2. You need to apply for new PERM through new employer, as you do not have a pending i-485. In my case I have an EB2 Perm with proiority date of Feb 2008. New company filed for PERM in 2011 and is pending. Once they file for I-140, they will port the priority date from the old PERM. Attorney never told me any thing about job description or any issue as you can even port the priority date from EB3. So i think that does not apply. You will need your I-140 and PERM copies from the current employer while doing the transfer and porting the priority dates.
2. You need to apply for new PERM through new employer, as you do not have a pending i-485. In my case I have an EB2 Perm with proiority date of Feb 2008. New company filed for PERM in 2011 and is pending. Once they file for I-140, they will port the priority date from the old PERM. Attorney never told me any thing about job description or any issue as you can even port the priority date from EB3. So i think that does not apply. You will need your I-140 and PERM copies from the current employer while doing the transfer and porting the priority dates.
more...
pictures Quote from fun2222: Keep praying for me!!! I just hope I don#39;t learn to hate
lalithkx
08-19 11:54 AM
Per Murthy EAD will be ganted only for one year if I-140 has not yet approved.
An important point made in the clarification is that, regardless of an unavailable priority date, the EAD will only be granted for one year if the I-140 petition has not yet been approved.
Yes, My I-140 is still pending but both me and my wife got 2 year EAD.
I think they changed their policy at their convenience.
An important point made in the clarification is that, regardless of an unavailable priority date, the EAD will only be granted for one year if the I-140 petition has not yet been approved.
Yes, My I-140 is still pending but both me and my wife got 2 year EAD.
I think they changed their policy at their convenience.
dresses they really have sibling love.
indyanguy
09-18 08:33 PM
july 2nd filer. transfer notice receipt date is aug 30th. This is confusing! Can someone please clarify:mad:
more...
makeup Lust makes you naughty. Love
newuser
10-02 04:38 PM
this is another ANTI IMMIGRANT TROLL ALERT
This guy looks like one of the person's replying on BW article
This guy looks like one of the person's replying on BW article
girlfriend Real Talk ( Love Lust amp; Lies
HumHongeKamiyab
04-08 02:39 PM
What if VISA is not given .. can you come back?
Valid I 94 is good enough at port of entry (even if your visa in your pp is expired)... as long as
1. your stay in canada is not more than 30 days
2. you did not appear for the visa interview (@US consulate) in canada.
3. You are not from a terrorist sponsored contries such as Iran, N. Korea etc.
This is called as "Automatica visa Revalidation" rule.
In other words if your visa is rejected @ the consulate and if your visa in passport is expired, you CANNOT come back to USA (using 30 day "automatica visa revalidation" rule).
--HumHongeKamiyab
Valid I 94 is good enough at port of entry (even if your visa in your pp is expired)... as long as
1. your stay in canada is not more than 30 days
2. you did not appear for the visa interview (@US consulate) in canada.
3. You are not from a terrorist sponsored contries such as Iran, N. Korea etc.
This is called as "Automatica visa Revalidation" rule.
In other words if your visa is rejected @ the consulate and if your visa in passport is expired, you CANNOT come back to USA (using 30 day "automatica visa revalidation" rule).
--HumHongeKamiyab
hairstyles True love never dies for it is
Michael chertoff
02-01 09:04 PM
Hi Everyone,
My AP is valid until JUNE 27 2011, (Here is the line from the I-512L, Presentation of the Original Document prior to June 27 2011 allows a customs and border protection inspector at a port-of-entry to parole the named bearer) I'm travelling to India during May / June and will be entering LAX back on June25. Will this be an issue as my AP is expiring in next couple of days.
Experts please let me know your thoughts on my situation whether it is safe to travel and getting in back will not be of an issue.
Thanks if you can help me out
Regards
Karthik
why dont you apply for renewel?
Thanks
MC
My AP is valid until JUNE 27 2011, (Here is the line from the I-512L, Presentation of the Original Document prior to June 27 2011 allows a customs and border protection inspector at a port-of-entry to parole the named bearer) I'm travelling to India during May / June and will be entering LAX back on June25. Will this be an issue as my AP is expiring in next couple of days.
Experts please let me know your thoughts on my situation whether it is safe to travel and getting in back will not be of an issue.
Thanks if you can help me out
Regards
Karthik
why dont you apply for renewel?
Thanks
MC
smuggymba
10-05 10:50 AM
It would be interesting to know the "process" used to legalize the illegals. If getting a GC when you're illegal is easy, I'd tear my H1 and stand in the USCIS illegal line.
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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