Government Filing Fees

Anomalous decision by DOL Administrative Law Judge allows deduction of H-1B visa fees from final paycheck

News Release from Jewell Stewart & Pratt PC On October 26, 2016, a U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) found that H-1B-related legal expenditures made by the employer could be deducted from the employee's final paycheck (Administrator v. Woodmen of the World Life Insurance Society). However, the reasoning on which the decision was based appears anomalous against the backdrop of other DOL pronouncements on an H-1B employer's wage obligations, and leaves important questions unanswered.

In the case, an H-1B employee resigned from his job, and his final paycheck consisted of wages for his final nine days of work, plus his accrued but unused vacation time. The employer invoked the terms of a payback agreement the employer had with the employee relating to visa fees, and withheld the H-1B legal fees and costs from the employee's final check. The parties apparently did not disagree that the $1,225 government filing fee for Premium Processing Service (PPS) had been for the employee's convenience rather than the employer's business need, so withholding of that $1,225 from the final check was not in dispute. Regarding the other legal fees and costs, however, the ALJ held that the employer withheld those from "benefits" (the employee's accrued but unused vacation time) and not from "wages" (the nine days he employee had worked in the final pay period), and therefore the employer's withholding of the visa fees did not have the effect of reducing the employee's wages below the H-1B "required wage rate," however the required wage rate may have been calculated. (The parties disagreed on what the "actual wage" was and therefore on the "required wage rate," but the ALJ sidestepped that issue.)

The Woodmen Life decision is troubling because it suggests the illogical conclusion that an employee who leaves employment with a zero balance of accrued vacation can't be docked for the employer's H-1B expenditures, but an employee who leaves with unused vacation time can have the employer's H-1B expenditures taken out of their final paycheck. In addition, the decision is potentially misleading in that it omits any caveat regarding state employment law. It may have been the case that, in the state where the employee worked, which was not disclosed in the decision, state law did not equate accrued vacation pay with "wages," but in some states, including California, earned vacation time is expressly considered "wages," and vacation time is earned, or vests, as labor is performed. Therefore, in some states, making a distinction between "benefits" and "wages" for the purpose of docking an H-1B employee's final paycheck for the employer's H-1B expenditures would be impermissible under state law.

The Woodmen Life decision is anomalous when considered alongside DOL's regulations and policy statements on an H-1B employer's wage obligations, which appear to prohibit the enforcement of payback agreements whereby the employee reimburses the employer for H-1B legal fees and costs. Under DOL regulations, the H-1B employer must pay the H-1B employee wages at the “required wage rate” for the position. The “required wage rate” is defined as the higher of (1) the “actual wage” (the rate the employer pays to all its other employees with similar experience and qualifications who are performing the same job in the same geographic area), and (2) the “prevailing wage” (the average wage paid to workers in the same occupational classification in the geographic area of intended employment at the time the application is filed). It has long been DOL's position that the legal fees and costs of the H-1B process are an employer's business expense and must not be passed on, even indirectly, to the employee; otherwise, the employer would be effectively reducing the employee's pay below the H-1B “required wage rate.”

It is prudent for employers to consult with legal counsel before adopting a policy, practice, or agreement in which an H-1B employee may be made responsible for all or part of the H-1B-related expenditures, because generally such policies, practices, and agreements are prohibited by law, and any exceptions would be narrowly drawn.

Phyllis Jewell

© Jewell Stewart & Pratt PC 2016

USCIS adopts new fee schedule, effective 12/23/2016

News Release from Jewell Stewart & Pratt PC The U.S. Citizenship & Immigration Service (USCIS) has adopted a new filing fee schedule. This chart lists the old and new fees side by side. The new fees become effective on December 23, 2016 and represent an increase of 21%, on average. There are increases in all the application and petition types typically filed in employment-related cases, including Forms I-129, I-539, I-140, I-485, I-131, and I-765.

USCIS warns that applications and petitions postmarked or filed on or after December 23, 2016 must include these new fees. If the new fees are not included with the submission, it will be rejected.

Government processing of immigration applications and petitions is funded by these user fees, and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications.

© Jewell Stewart & Pratt PC 2016

New USCIS Fees are in Effect and Revised I-129 Form is Live

News Release from Jewell & Associates, PC – December 3, 2010 On November 23, 2010, the USCIS activated a new fee schedule and also released a revised I-129 form.

Updated Fee Schedule

According to the USCIS, the new fee schedule raises filing fees approximately 10% on average.  Very notable for employment-based Petitioners and Applicants is the change to the premium processing filing fee which increased from $1000 to $1225.  Under premium processing a case must be adjudicated or additional evidence requested within 15 days of filing.  Premium processing went into effect in 2001 and the filing fee remained static at $1000 for the 9 years since then until this change. 

The new fee schedule can be found in a Public Release by the USCIS.  

Revised I-129 Form

The newly revised I-129 form was released by the USCIS on November 23, 2010, but the prior edition will still be accepted until December 22, 2010.  The I-129 form is used for filing a petition with the USCIS for E, H, L, O, P, Q, R, and TN statuses.  There is a basic I-129 form that is used for all applicable petitions as well as one or more supplements to attach to the I-129, depending on the requested classification.

One timely addition to the forms are checkbox attestations on the L and H Data Collection Supplements that allow a Petitioner to indicate directly on the form whether or not it is subject to the additional filing fees imposed under Public Law 111-230.   

Another timely addition is that the revised basic I-129 form and the I-129 H-1B Data Collection Supplement each include questions about whether the beneficiary will be working off-site.  Pursuant to direction from a January 2010 memo, the USCIS has issued numerous Requests for Evidence (RFEs) regarding the issues of management control of the Beneficiary and possible off-site placement in the H-1B context.  These new forms may help answer these questions up-front and reduce potential RFEs.

The revised I-129 form also requires a new Petitioner attestation regarding controlled technology or technical data that must be made for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions.  The export from the U.S. of certain forms of technology and data is regulated by the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).  The definition of “export” includes access of the technology or data by a foreign national, whether or not he is actively removing the property abroad.  A Petitioner must certify via checkbox on the revised I-129 form that either 1) a license is not required to release the technology or data to the foreign national or 2) that a license is required but that the Petitioner will prevent access of the controlled technology or data by the beneficiary until such a license or other authorization is obtained.  It is important to note that the attestation on the revised I-129 form does not change any prior export control laws but merely requires a Petitioner to actively attest that it is compliant with the regulations.

The revised I-129 form and instructions may be found at:  http://www.uscis.gov/i-129

© Jewell & Associates, PC 2010

Large increases in government filing fees for some H-1B and L-1 petitions

To make emergency supplemental appropriations for border security, Public Law 111-230 was passed by Congress and it was signed into law by President Obama on August 13, 2010.  One provision of the new law, effective immediately, adds large supplemental filing fees to certain H-1B and L-1 petition filings.  USCIS clarified in a recent announcement that it will require the supplemental fee for petitions postmarked on or after August 14, 2010.  The supplemental fees will remain in effect through September 30, 2014.

H and L fee increases

News Release from Jewell & Associates, PC – August 13, 2010 On 8/13/2010, President Obama signed into law H.R. 6080, an act making emergency supplemental appropriations for border security.  One provision of the act raises the filing fee and Anti-Fraud fee for H and L visa petitions.  The fee hikes apply to petitioning companies with more than 50 employees in the United States, if more than 50% of those employees are either in H or L status.  The fee increase for Ls is $2,250.00, and the increase for Hs is $2,000.00.  The language of the act appears to add these fees onto the existing $320.00 filing fee and $500.00 Anti-Fraud fee for each, bringing the total to $3,070.00 for Ls and $2,820.00 for Hs (not including PPS or ACWIA fees).  It is unclear whether these fees apply only to initial petitions or if they also apply to extensions.  Also unclear is whether the 50% determination for H or L counts individually or cumulatively.  The fee increases appear to go into effect immediately, but we are uncertain whether USCIS will start rejecting petitions that are en route, or if USCIS will announce an effective date with an updated fee schedule.  The fee increases are set to expire on September 30, 2014.  We will post updates as more information becomes available.

© Jewell & Associates, PC 2010