Immigrantly

Immigration thoughts from an Immigration Lawyer.

Who is responsible for H1B fees and Green Card fees, the employer or the employee?

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Most visa categories and green card categories do not have requirements as to who must pay the fees associated with the application. However, H1B and PERM (EB2 and EB3 categories) are the exceptions. Immigration laws require that the employer (sponsor) pays at least a portion of the fees. This not only increases the burden on employers, but also puts burden on potential employees who are desperately trying to get a job offer. 

H1B

For H1B, most fees must be paid by the sponsor employer, with a few exceptions. The fees associated with H1B include the following, and the Department of Labor (DOL) gives guidance on who must pay each fee:

  • Filing Fee ($325): Employer must pay.
  • Training and Scholarship Fee ($750 or $1500): Employer must pay.
  • Anti-Fraud Fee ($500): Employer must pay.
  • Premium Processing Fee ($1225): Whoever is requesting must pay. This means that if the employer can demonstrate that the Premium Processing request was filed specifically for the personal benefit of the employee, then the employee can bear the cost.
  • Visa Application Fee ($190): The DOL states that the employee may pay this fee. However, a federal court decided on a case in August 2014, suggesting that the employer must pay for the visa fees. Although the DOL has not changed its statement, one should look out for any future changes.
  • Attorney’s Fee: The employer must pay, unless the employee is offered a wage higher than the prevailing wage, and the difference of the offered wage and the prevailing wage can cover the attorney fee.
  • Fees associated with family member’s H1B: The employee may pay.
  • Other costs (e.g. academic evaluation, translation, FedEx, etc.): As long as the costs were incurred for the purpose of H1B, the Employer must pay.

The fees must be paid by an employer cannot be collected from the employee in any way. This means that the employer cannot ask for any refund after the visa is approved, and cannot deduct the amount from the employee’s pay checks.

Green Card

Contrary to H1B, a big portion of fees associated with Green Card can be paid by employees, with an exception of fees associated with PERM application. PERM application is required for EB2 (except for National Interest Waiver) and EB3 categories, and is the 1st of the 3-step application process (PERM->I-140->I-485). The fees associated with a PERM application include the followings, and must be paid by the sponsor employer:

  • Attorney’s fee: Most law firms separate the PERM attorney fee from the I-140/I-485 attorney fee. The fees can vary, but usually will be around $2000 – $5000.
  • Advertisement fees: The cost of the advertisement depends on the location, media, and contents. It can vary from a few hundred dollars to a few thousand dollars.
  • Other costs (e.g. academic evaluation, translation, FedEx, etc.)

The remaining application fees for I-140 ($580) and I-485 ($1070 per person), and the attorney fees (a few thousand dollars) can be paid by either the employer or the employee.

Compliance and Competitiveness

It is important to understand the rules for paying the fees. You want to make sure that you comply with the laws so that your H1B or green card will not be revoked, or that your company will not face charges. However, these rules are indeed burdensome for both employers and employees. Especially for the job seekers to be competitive in the labor market, it is tempting to say “I will pay for all the legal fees for my status, so please just hire me!” But no, that’s not the way to go. Sure, you may be disadvantaged because of your immigration status, but as a foreigner, you must have invaluable characteristics that a U.S. worker doesn’t have, which can make you competitive. On top of presenting yourself as best as you can, you should also educate the employer how the law works and how much exactly they are expected to pay. Some employers are hesitant to be a sponsor simply because they don’t know much about the laws and they over estimate the cost and burden. Moreover, you can offer to refund the fees if, and only if the application is denied. This will ease employers’ fear that they will spend all time and money only to receive a denial notice and lose everything.

One last piece of advice to the job seekers, think twice before accepting a job offer from an employer who puts hard conditions on visa sponsorship. Will they treat you well once you start working there? Don’t become one of the sad so-called “H1B slaves.” Even if that means you must return to your home country, often it is a better option, since your U.S. degree may worth more in your home country. You may get a great position in a multi-national company which can transfer you to the U.S. in the near future. At that point, you will have more visa options, and you will be treated much better as an expat.

Good luck to all foreigners seeking jobs in the U.S.!

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