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H1B Visa: Who Pays Legal Fees?

June 14, 2013

H1B Visa Fees

Author: New York Immigration attorney Alena Shautsova

H1B visa is one of the most common visas which are used to employ foreign workers in the U.S. It allows  foreign specialists from a variety of occupations to be legally employed in the US, as well as provides for a dependent status for their family members.

The process of H1B visa starts with an employee finding an employer in the US who is willing and able to hire the employee; is willing to sponsor the foreign worker; and wait for him/her to get appropriate documents. There are filing deadlines which start from April 1 each year.If  the employer’s petition is granted, an employee will be able to start employment on October 1 of the year the application/petition was filed. Sometimes, however, the adjudication of the petition takes much longer, and the start date understandably will be delayed.

The H1B worker is often the one who finds an attorney to deal with the Immigration paperwork. However, it is important to know that the H1B legal fees and costs must be paid by the employer. Why? Because the employer promises that it will pay the employee the required by law wage, and in the eyes of the law, if an employee spends his/her own money on filing fees, it reduces the wages. See:

§ 655.731(a)(1) The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. In determining such wage level, the following factors may be considered: Experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors…
Where there are other employees with substantially similar experience and
qualifications in the specific employment in question–i.e., they have substantially the same duties and responsibilities as the H-1B nonimmigrant–the actual wage shall be the amount paid to these other employees. Where no such other employees exist at the place of employment, the actual wage shall be the wage paid to the H-1B nonimmigrant by the employer…
§ 655.731(a)(2) The prevailing wage for the occupational classification in the area of intended employment must be determined as of the time of filing the
§ 655.715 …
Required wage rate means the rate of pay which is the higher of:
(1) The actual wage for the specific employment in question; or
(2) The prevailing wage rate (determined as of the time of filing the LCA
application) for the occupation in which the H-1B, H-1B1, or E-3
nonimmigrant is to be employed in the geographic area of intended

Despite of this rule, it is still possible that a third party covers the fees.  In addition, such fees and costs that are individual to every employee, such as fees in relation to  a waiver, can be covered by the employee.

It is important that an employer is aware of its obligations and follow them strictly, as any deviation may result in denial of the whole submission.

Please refer your questions to an Immigration attorney Alena Shautsova at 917-885-2261.

Category: Visas