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377-splitting-h-1b-filing-fees-and-legal-fees-with-employees

Splitting H-1B Filing Fees and Legal Fees with Employees

The US Department of Labor (DOL) mandates that there are certain types of payroll deductions that an H-1B employee can never be required to pay. In certain other instances, deductions may be made from an H-1B employee’s salary, even if they reduce the H-1B worker’s pay below the required wage rate.

The following list includes items that an H-1B worker, can never be required to pay outright or through a payroll deduction:

  1. Penalties (as defined by state law) for the employee’s failure to complete the full employment period.
  2. Any part of the statutory training and processing fee imposed by the Department of Homeland Security’s US Citizenship and Immigration Services (USCIS).
  3. Any part of the statutory $500 fraud protection and deduction fee imposed by USCIS.
  4. Any deduction for the employer’s business expenses that would reduce an H-1B employee’s pay below the required wage rate. This includes:
    • Expenses, including attorney’s fees, directly relating to the filing of the Labor Condition Application (Form ETA 9035 and/or ETA 9035E);
    • Expenses, including attorney’s fees and the premium processing fee directly related to the filing of the Petition for Nonimmigrant Worker (Form I-129);
    • Tools and equipment; and
    • Travel expenses while on employer’s business.

However, aside form the items excluded above, deductions may be made from an H-1B employee’s pay only when the deductions satisfy one of the following three categories:

  1. The deductions are required by law (i.e. income tax deductions).
  2. The deductions are reasonable and customary (i.e. union dues and insurance premiums).
  3. The deductions are authorized by the H-1B employee, under the following standards:
    • The employee has issued a voluntary, written authorization;
    • If the matter is principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging that was not incurred while traveling on the employer’s business;
    • The deduction is for an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
    • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

Please note, if a deduction falls into one of the three permissible categories cited above, the deduction may be made even if it reduces the H-1B worker’s pay below the required wage rate.

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