Reducing the Cost of H-1B Fees: Can Employers Make Employees Pay?

Traditionally the fees involved in the process of obtaining labor certification and employing foreign nationals to work in the United States have been covered by the employer, but in an increasingly rough market, many companies and employers are attempting to defer some of the costs to the employees themselves. For some of the fees, employers are expressly prohibited from passing the burden onto the beneficiary (the employee), but for others the law is not so explicit.

The employer may never make deductions from the beneficiary’s salary in order to recover expenses incurred in conducting regular business such as tools and equipment, and including “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition.” See 20 CFR §655.731(c)(9).  The Code is explicit on this matter; the employer is not to pass on any of the costs associated with the H-1B process, if that fee is attached to a part of the process that is to be carried out by the employer.

There are a few deductions which are permissible, so long as requiring the beneficiary to pay the deductions does not drop his or her salary below the prevailing wage specified by the Department of Labor in the labor certification. If the employer imposes unauthorized fees on the employee that push the employee’s actual wages received below the amount required by the prevailing wage, the employer will be required to pay back wages, and may be subject to civil monetary penalties and/or disqualification from future H-1B programs and immigration benefits. See 20 CFR §655.731(c)(11).

Summary: In general, when an employer employing foreign nationals decides to make deductions from such an employee’s salary, the employer must be sure that doing so would not push the employee’s actual wages below the prevailing wage required by the labor certification. Exceptions are made for “authorized” deductions that are required by law and/or that are also made against the wages of U.S. workers similarly employed.