H-1B mistakes that cost Employers

·        Can the foreign national pay H-1B fees?

 

The short answer is “NO”. A foreign national must not pay any fees associated with H-1B (with few exceptions). Authorized H-1B deductions are clearly indicated in the DOL fact sheet. See   https://www.dol.gov/agencies/whd/fact-sheets/62h-h1b-pay- deductions

 

Premium Processing fee is not that clear. Fundamental rule is that  the employer expense cannot  be passed to the beneficiary. However, where the employer had objected to paying the premium processing fee, and premium processing was requested at the nonimmigrant’s behest, the expense was found not to be an employer expense.

 

·        Penalties for forcing H-1B employee to stay employed?

 

Employers are prohibited from requiring an H-1B employee to pay a penalty for ceasing employment prior to an agreed-upon date unless DOL finds that the amount constitutes liquidated damages under relevant state law.

 

For the amount to be considered liquidated damages, DOL requires that it meet the five criteria for deductions from wages and that it conform to the applicable state law for liquidated damages. Generally the five criteria include:

i.   Are amounts “fixed or stipulated by the parties at the inception” of the

employment agreement;

ii.   Are “reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party’s breach of the contract”;

iii.   Take into account the respective power and relationship of the parties, so that

fraud or oppression by one party results in the amount being considered a prohibited penalty rather than liquidated damages; and

iv.   Require that the stipulated amount take into account whether the breach is total or partial—in other words, account for the percentage of the agreed duration of employment that was completed. (

 

·        Bona Fide H-1B Terminations and Employer Steps to End the Pay Obligations. Is a Flight Home Required?

 

a.   “Prohibition Against ‘Benching’

i.   Payment obligations cease where there has been a “bona fide termination of the employment relationship.” Rather than define this term, the DOL regulation passively states that “DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled and require the employer to provide the employee with payment for transportation home under certain circumstances.

ii.   Administrative appeal decisions have found that to show a bona fide termination,

an employer should “demonstrate that it:

 

(1) expressly terminated the employment relationship with the H-1B worker;

(2) notified USCIS of the termination so that the petition could be cancelled; and (3) provided the worker with the reasonable cost of return transportation to his or her home country.”

 

Note: If the employer notifies DHS of a termination, but behaves in a way that suggests an ongoing employment relationship, DOL may conclude that a bona fide termination has not occurred.