One of the tried and true questions our firm hears from employers during the H-1B process is, “Can my potential employee pay the H-1B fees?” This frequently comes about because the foreign employee kindly offers to the potential employer that they will pay all the fees associated with the H-1B (filing fees and attorney fees) to make the process less burdensome on their potential employer. As good as this sounds to employers, immigration law is very clear that in the employer-driven H-1B process, it is the employer (and not the foreign employee) that is responsible for the H-1B process and all fees related to the process. One industry that often misunderstands the employer responsibility for H-1B fees is the healthcare industry. We recently saw this play out in a big way in the million dollar Kutty decision and now, a local healthcare company in Joplin, Missouri is suffering the consequences of the employer not paying the H-1B fees.
This case arose when a therapist from the Philippines, one of many that was hired by Greater Missouri Medical Pro-Care Providers, Inc (“Greater Missouri”), submitted an H-1B complaint against her employer. The therapist, Alena Gay Arat (“Ms. Arat”), alleged several things against Greater Missouri including:
1. Greater Missouri failed to pay her (and other therapists on H-1B visas) the wages required under its Labor Condition Application while they were studying to gain their physical therapist licenses;
2. That Greater Missouri required her to pay all fees, including attorney’s fees, related to her H-1B visa;
3. She was given work not identified in her contract; and
4. She was threatened with a monetary penalty for ending her employment early with Greater Missouri.
The court found Greater Missouri liable for $123,230.16, finding that 8 H-1B employees were owed money for benching violations, 17 H-1B employees were owed money for illegal deduction of fees, and 4 H-1B employees were owed money for illegal withholding of final paychecks. Greater Missouri did not dispute that they deducted the H-1B employee’s paychecks for attorney fees and LCA fees, that they did not pay the H-1B employees for training time, and that they kept final paychecks from employees when they ended their employment early.
It would be diligent for employers to know what the regulations say about the entire H-1B process, including who is allowed to pay the fees involved. We advise employers to consult with an experienced immigration attorney who is well versed in the H-1B process.
The case can be found here.
For more information on who pays the H-1B legal and filing fees, check out this article.
Is sponsoring an employee on an H-1B right for you? Check out this article for some helpful information.
For H-1B visa training, click here.
Corporate Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM
7007 College Blvd., Ste. 460 | Overland Park, KS 66211