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  #1  
Old 06-22-2010, 04:41 PM
dgs dgs is offline
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Question H1B Extension Fees - Can Employee Pay?

Pardon me if this has been asked and answered before and this post is redundant.

But can the employee pay for H1 extension? If so, can the employee pay all the fees or are only certain types of fees can be paid by the employee?

Thanks.
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  #2  
Old 06-22-2010, 05:52 PM
Suva Suva is offline
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NO. It should be completely paid by the employer.

Quote:
Originally Posted by dgs View Post
Pardon me if this has been asked and answered before and this post is redundant.

But can the employee pay for H1 extension? If so, can the employee pay all the fees or are only certain types of fees can be paid by the employee?

Thanks.
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  #3  
Old 06-22-2010, 06:06 PM
indigo10 indigo10 is offline
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I think, legal expenses (Lawyer fees) can be shared by employee. My employer goes by law but he had asked me to share legal expenses for my recent extension and when I asked him if thats legal, his answer was yes.

Not an advice.
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  #4  
Old 06-22-2010, 07:06 PM
dgs dgs is offline
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Clarification - I am asking about 2nd or later extension.

First (original) filing - Employer

First extension - Employer

Second Extension onwards - it seems there is some provision in the law that as long as the employee's compensation is higher than the prevailing wage in the labor, employee can pay for the extension. But I am not sure about this. Also, if this is indeed true, then I would like to know if the employee can pay all the fees or only certain fees.

Thoughts?

Thanks.
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Last edited by dgs; 06-22-2010 at 07:38 PM.
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  #5  
Old 06-22-2010, 08:49 PM
ArkBird ArkBird is offline
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As far as I know, any expense for H1B is employer's responsibility. It has NOTHING to do with prevailing wages. I think she(lawayer) meant if you are "well paid" i.e. above prevailing wages, why not pay for your H1B which again is BS...
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  #6  
Old 06-23-2010, 12:12 PM
bobzibub bobzibub is offline
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Default Some starting info...

U.S. Department of Labor Employment Standards Administration (ESA) Wage and Hour Division (WHD) Admission of Temporary H2A Workers

(II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under section 214(c)(1), for which a fee is imposed under section 214(c)(9), to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from such an alien.

But it appears toothless because the fine is $1000.

-b
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  #7  
Old 06-23-2010, 02:26 PM
abhishek101 abhishek101 is offline
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The simple stratightforward law is Employer has to pay for everything. I am on my 4th extension and recently had a visit from the USCIS at work and the first question the USCIS agent asked was who paid for H1b ?

Now you can definitely split hairs on which portion belongs to whom legally but I do not think that the agent would have appreciated the nitti grity.

So if you want to be perfectly safe then answer is straight forward.
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  #8  
Old 06-23-2010, 02:57 PM
dgs dgs is offline
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Thanks for your responses and I hear you folks!

But in the interest of understanding the law I would like to discuss the original question further....


Also,
Quote:
Originally Posted by 1965074
U.S. Department of Labor — Employment Standards Administration (ESA) — Wage and Hour Division (WHD) — Admission of Temporary H2A Workers

(II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under section 214(c)(1), for which a fee is imposed under section 214(c)(9), to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from such an alien.

But it appears toothless because the fine is $1000.

-b
bobzibub - I appreciate the specific insight. But unless I misunderstood (and I would be happy to be corrected) Isn't what you are citing just about the fraud fee of $1500? That is a very specific type of fee payable on first filing. Generalizing that across any and all types of fees related to an H1B extension would not be the correct interpretation of the law.

Typical types of fees :
H1B Labor
USCIS (H1 Extension Petition)
USCIS (Premium Processing if applicable)
USCIS (Fraud fee if applicable)
Attorney fees

It appears that the labor and fraud fee is payable by the employer. But the rest (specifically on 2nd or later extension) can be payable entirely or partially by the employee.

It would be very helpful if any of the immigration lawyers who typically advertise/post here could contribute with some basic guidance.

Thanks.
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Last edited by dgs; 06-23-2010 at 05:19 PM.
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  #9  
Old 06-23-2010, 03:10 PM
ameryki ameryki is offline
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I had looked in to this about 6 months ago when I was up for an extension. Research showed certain pieces of the fees could be paid by the employee and still be legit. My employer ended up picking up the entire tab so did not have to pay anything. On a side note I did have a visit from uscis sleuths after the renewal and they did ask me who paid for the petition myself or the employer. just my two cents!
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  #10  
Old 06-23-2010, 03:27 PM
dgs dgs is offline
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Quote:
Originally Posted by abhishek101 View Post
The simple stratightforward law is Employer has to pay for everything. I am on my 4th extension and recently had a visit from the USCIS at work and the first question the USCIS agent asked was who paid for H1b ?

Now you can definitely split hairs on which portion belongs to whom legally but I do not think that the agent would have appreciated the nitti grity.

So if you want to be perfectly safe then answer is straight forward.
Abhishek,

I understand your view point. And ideally, everyone would like it to be that way.

That said, I would like to bring it to your attention (and everyone else's) that what I am asking is for some guidance into the correct interpretation of the law (and yes we will be consulting with our attorney as well, but at times on intricate/complex issues like these, even the attorney opinions differ, mostly driven by lack of insight into a specific allowance in the law)

So, if the law doesn't mandate (probably only in specific instances like 2nd or later extension, salary higher than prevailing wage, etc.) that all costs have to be borne by the employer, then the employee sharing the costs would still be legal and "safe".

Again, Abhishek, I understand your reference to "safe" as being peace of mind in absence of knowledge about the specifics. It's just that if specific provisions or mandates in the law are known and are acted on accordingly, one would still be safe, albeit one will have to go through the hassle of due diligence. I guess it's the difference between quick, easy but safe way versus painstakingly diligent, informed and still safe way! Sometimes, the situation pushes one to do some diligence rather than having the quick and easy way out!
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Last edited by dgs; 06-23-2010 at 03:30 PM.
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  #11  
Old 06-23-2010, 03:48 PM
dgs dgs is offline
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Those who say that they had visits from USCIS officials, can you post if:

A. Total Compensation lower than Prevailing wage on the labor
B. Total Compensation equal to the Prevailing wage on the labor
C. Total Compensation just about higher (<=5%) than the Prevailing wage on the labor
D. Total Compensation significantly higher (>5%) than the Prevailing wage on the labor

Thanks.
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  #12  
Old 06-23-2010, 03:55 PM
thomachan72 thomachan72 is offline
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I am 100% sure of the information provided below;

Fee to be paid to the USCIS has to be paid by the employer.
Legal fee (attorney's) can be paid completely by the employee. When I was at an university initially their system did not allow payment to attorneys and they did not have an immigration attorney so I had to hire one for myself and paid from my pocket. This was for an H1b (original).
If you think about it 80% of the cost is ATTORNEY'S FEE.
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  #13  
Old 06-23-2010, 04:00 PM
thomachan72 thomachan72 is offline
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For me since a long time it has been the same attorney and they are actually corporate preffered attorney group and these can be expensive. Now if people who are already on such agreement decide to do it themselves it might be very expensive to begin with and if you decide to chose a cheaper attorney it gets complicated to transfer all your files. Try to keep all the work with one attorney (my 2 cents). I am not sure what difficulties people who shift between attorneys face.
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  #14  
Old 06-23-2010, 05:37 PM
dgs dgs is offline
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Quote:
Originally Posted by thomachan72 View Post
Hey, looks like a good attorney this Indu? Is it a random find?
She does appear to be known around the bay area (based on the responses/testimonials on her forums/site if those can be considered credible).

I was google-ing for more info on this and that post came up.

It appears that it has something to do with the employers having to meet the minimum prevailing wage and cannot seek compensation from that minimum wage back for the H1 expenses. But once having met the legal requirement of the prevailing wage, it appears that it is left between the employer and employee to decide how and who pays for the H1 expenses (other than the labor and the fraud fee).

There seem to be some restrictions on whether an employer can withhold h1B expense compensation from salaries (even if beyond prevailing wages). But it appears that an employer/lawyer can bill the employee directly for all expenses including USCIS filing fees (again other then the fraud fee).

Note the emphasis on the words "seems", "appears", etc. based on what I am hearing. In other words, nothing I am posting above is conclusive. It can't be as that's why I am posting here, to solicit more information from the experts!

It seems there's some language around prohibition of expense withholding from wages in 655.731(c). But there are no other specific references around that an employee cannot pay (other than those in 212 that bobzibub posted which appear to be around the fraud fees)
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  #15  
Old 06-23-2010, 05:48 PM
thomachan72 thomachan72 is offline
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I have added her to the favorites. Have you tried emailing her directly to clarify her position regarding this issue? How secure it is if the employee pays etc?
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