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  • Macaca
    04-22 09:07 AM
    Passing On H-1b Costs to the Employee? (http://www.hammondlawfirm.com/FeesArticle07.18.2006.pdf) -- Smart Business Practice or DOL Violation?, by Michael F. Hammond and Damaris Del Valle

    After all the costs associated with an H-1B petition are totaled, the sum can be alarming. In order to offset this cost, some employers ask that the beneficiary, the employee who is being hired, reimburse the company in whole or in part. Which costs may and may not be paid by the beneficiary can be a tricky matter. What follows is an analysis of H-1B costs and who may pay what.

    All deductions from an H-1B worker’s pay fall into three categories: authorized, unauthorized, or prohibited. Authorized deductions can be taken without worry of whether or not such a deduction will lower the employee’s rate of pay below the required wage rate. Unauthorized deductions, counter to what the term may connote, can be taken from an employee’s wage but are considered non-payment and are only allowed if the beneficiary’s wage rate, after the deduction(s), is greater than the required amount listed on the Labor Condition Application (LCA). Unauthorized deductions cannot push the employee’s wage below either the prevailing wage rate or the actual wage rate, i.e. salaries of those similarly employed and qualified at the work site. Prohibited deductions may not be taken from the employee’s pay regardless of the effect they would have on the required wage rate.

    The most straightforward of the deductions is the prohibited deduction. The Training Fee associated with the H-1B petition is the only prohibited deduction associated with the cost of filing an H-1B petition. Rajan v. International Business Solutions, Ltd. and the language in the relevant regulation make it very clear that the Training Fee is to be paid by the employer or a third party; it is not to be reimbursed in part or whole by the employee. This fee must be completely shouldered by the employer or a party who is not the employee.

    Deductions are considered by the Department of Labor (DOL) to be authorized if:

    The deduction is reported as such on the employer’s payroll records,
    The employee has voluntarily agreed to the deduction and such agreement is documented in writing (a job offer which carries a deduction as a condition of employment does not meet this requirement),
    The deduction is for a matter that is principally for the benefit of the employee,
    The deduction is not a recoupment of the employer’s business expenses,
    The amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered, and
    The amount deducted is not more than 25% of the employee’s disposable earning.

    An Education Evaluation arguably qualifies as an authorized deduction. Similar to a translation fee, which is payable by the employee, the employee is benefiting from the evaluation and will be able to use it in the future in his/her private capacity if s/he so wishes. Of course, if the employee is paying for the evaluation, then s/he must be able to acquire a copy of the evaluation so that the future benefit upon which his/her payment is presumed is a real possibility.

    Attorney’s fees associated with obtaining H-4 status for family members accompanying the Beneficiary may qualify as authorized deductions since the Beneficiary is the party who primarily benefits from such fees. In addition, attorney fees associated with visa issuance, assuming that international travel is not a requirement for the position, could be properly considered as authorized deductions. In order to properly deduct the attorney fees associated with these processes, it is important that the attorney break down the specifics of how much is being charged for each element of the H-1B process- this will allow the employer to deduct those fees associated with the retention of the visas for the accompanying family members without concerning itself with the deduction requirements necessary for unauthorized deductions.

    The circumstances surrounding the Premium Processing Fee determine if deduction of the fee is to qualify as authorized or unauthorized. While the speedy decision that the Premium Processing Fee guarantees often benefits both the employer and the employee, it is important to take notice of which party requests and benefits most from premium processing. If the employee has decided to utilize premium processing for his/her own personal benefit, then the employer may be reimbursed by the employee in accordance with the requirements established by the DOL for authorized deductions. If the employer is the party desiring premium process and who will benefit from such processing, then any deductions from the employee’s pay are unauthorized and, as such Deduction of attorney’s fees associated with the filing of the LCA or H-1B and the Base Fee (or I-129 Fee) are considered to be unauthorized. These fees are considered to be the employer’s business expenses and, for this reason, are not authorized deductions. These fees may be deducted from the employee’s pay so long as they do not drop the rate of pay below the required wage rate.

    It is not clear whether or not the Fraud Fee which was implemented in March 2005 is unauthorized or prohibited. The language of the act regarding the Fraud Fee states that “the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition.”10 Almost identical language is used in the Act to refer to the Training Fee.11 Such similarity could be read to mean that the restrictions of the Training Fee also apply to the Fraud Fee. However, 20 C.F.R. 655 is explicit in saying that the employee cannot pay the Training Fee; no such statement is made regarding the Fraud Fee. The regulation regarding the Training Fee, 20 C.F.R. 655, predates the creation of the Fraud Fee, which may explain this discrepancy. Nonetheless, the language referring to the Fraud Fee is not explicitly prohibitive and an employer may decide to be reimbursed by the employee. If an employer chooses to do so, any deductions from the employee’s salary to pay for this fee must meet the DOL requirements for unauthorized deductions. 12

    Before any payments are made by the employee or deductions are taken from his/her pay to reimburse the employer, it must be determined if such deduction is permitted and if so, whether or not it is authorized or unauthorized. Once these preliminary determinations are made, appropriate steps must be taken to ensure that the DOL’s requirements are met. As a practical matter, there are very few circumstances in which the prospective employee could legally be made to pay for the costs associated with the H-1b process without an employer risking non-compliance and causing significant record keeping.





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  • veni001
    02-06 09:46 PM
    Hi ->
    I got a lawsuit(summons) from my previous Employer ( I quit this consultancy in Oct 2010 ) and got this two days back with below points . I need to respond to them with in 30days. I quit this company has he hasn't paid any bench salary and haven't do any proper marketing - which were force me choose a permanent job.
    So could some one please advise me the right lawyer to handle this.I need to answer to this summons and need file a new case against them.

    Points that summons contain :
    FIRST COUNT : Breach of Contract
    Second Count : Tortuous Interference
    Third Count : Breach of Duty of Good Faith and Fair Dealing
    Fourth Count : Unjust Enrichment
    Fifth Count :Misrepresentation and Fraud
    SIXTH count : Breach of Duty of Loyalty

    Really I would you appreciate you guys advise me right way to handle this.


    Either you or your attorney can respond back to your previous employer indicating that you will be reporting to DOL on FORM WH4 (http://www..com/forms/wh-4.pdf) on his/her H1B violations(not paying on bench is clear violation of LCA). Remember one thing employment is at will ( both ways) in US.





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  • Lisap
    08-03 12:07 PM
    So my status doesnt change until my I 485 is approved- any idea how long that will take? My H 1B expires in Nov of 2007 should I get an extension? Thank you for your replies- Lisa





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  • purgan
    12-18 06:40 PM
    Immigrantion Restrictionist/Racists have been calling Congresional offices and pounding the privelege of their One vote each, so they can be spared of foreign competition even though US competitiveness goes down the drain. I guess each one to himself. Here are some of the more interesting conversations...

    ==


    Senator Kyl:
    Q. What is Senator Kyl's position to be on Cornyn's "dark of the night"
    attempt to ramrod an H-1B increase?
    A. Are you calling on behalf of any organization?
    A. Yes, the org's name is Sandra. I only have one vote and no campaign
    donations.
    "Very low likelihood of this passing, and in the future Senator Kyl will
    take into careful consideration such meansures."
    A. You haven't answered my question. Kyl has been a consistent supporter
    of H-1Bs
    A. Senator hasn't made a decision and is still considering.
    Q. How did the Senator vote on the H1-C two days ago?
    A. I'm not finding a record.
    Q. It was HR1285--on December 5.
    A. Oh, that was a unanimous voice vote.
    Q. So does that mean Senator Kyl voted for it?
    A. I can check, just a moment........it was a unanimous voice vote
    ================================================== ========
    Senator McCain:
    Q What is McCain's position on Cornyn's "dark of the night" attempt to
    ramrod an H-1B increase?
    A. He hasn't yet taken a position.
    ================================================== ========
    Senator Grassley (Casey Mills)
    Asked for Casey but aide couldn't find him
    Q. Does Grassley support H1-B increases?
    A He doesn't know.
    I gave him a rundown as if I were Debbie--nursing shortage is artificially
    created. Grassley probably voted for H1-C, etc.
    I retrained for a job after 20 years to go into nursing, and now find wages
    are kept low by foreign nurses.
    A. He'll pass concerns along.
    ================================================== ==============
    Senator Dorgan
    Express thanks to Senator Dorgan for opposing H1-Bs.
    ================================================== =================

    Sandra

    ++++++++++++++++++++++++++++++++++++++++++++++++++ +

    I called Cornyn's office just now - male staffer got really annoyed when I
    asked him if Senator Coryn supports displacing well-educated American
    workers with Foreign H-1B Visa holders. He immediately passed me off to a
    voice mail box of a staffer who handles immigration matters. (Yes, I know
    H-1B's are so-called "non-immigrant Visas" but we all know most of these
    people end up staying here -)

    Of course the staffer did not pick up his phone - but the staffer's name is
    Landon Bell. Why not ring up Senator Corn-Hole's office and ask for Landon
    Bell, and ring Landon's bell a bit?

    Gerard

    ++++++++++++++++++++++++++++++++++++++++++++++++++ +

    I called Cornyn's office just now - stated my opposition of course. The
    person I spoke with said that Cornyn was trying to get his bill introduced
    today, and he was not sure if it would be voted on today.

    Hopefully Cornyn fails. I think he is getting our message, but I also
    think he does not care.

    Roy

    ++++++++++++++++++++++++++++++++++++++++++++++++++ +

    Maybe you all have different information that I just obtained from both
    Senator Pete Domenici's office (Republican) and Senator Jeff Bingaman's
    office (Democrat) -- both of New Mexico. But both of their offices claim
    that Skil Bill "Access to High Skilled Foreign Workers" S 2691 has NOT left
    committee yet and thus cannot be voted on yet. (It is certainly possible
    that you all have different or better information than was conveyed to me
    but this is what I obtained.)

    Domenici's office staff person couldn't tell me which side of the fence he
    was on as he hasn't "made a press release" yet. And, as long as it is in
    committee he apparently doesn't voice an opinion.

    Senator Bingaman's office staff also told me that he had not expressed an
    opinion to him on his position on the bill. The young, female staff woman
    who answered the DC phone seemed STUNNED when she pulled up the bill and
    started to read parts of it. She thought they'd have to take some kind of
    special test to get into the USA for these jobs -- no. I only wish she
    were casting a vote as I know how she'd vote! Again, she told me that
    the bill was not out of committee YET and the Senators are going home
    tomorrow afternoon. They are doing "yesterday morning's" work tonight or
    some such backward thinking. There has been no floor debate on the bill so
    the staff claimed would mean there will NOT be a vote on the bill tonight.
    No one would guarantee me that NO voting would take place tomorrow but did
    say it was UNlikely.

    Finally, when I got to the staff woman in DC she was a bit surprised
    because someone had called her on the bill from one of the Senator's New
    Mexico offices. (A bit strange unless it was my calling the Senator's 800
    number which connected me some place in New Mexico and they called the DC
    office for information regarding my inquiry.)

    (BE careful when you call, however, one Bingaman's staff males that I
    spoke with tried to give me the WRONG Senate Bill number reference. He
    asked "This is Senate Bill 2626?" I said "The one I am calling on is
    "Senate Bill 2691 "Access to High Skilled Foreign Workers" so unless the
    bill has been reassigned a number that I don't know about -- I am calling
    on the Skil Bill "Access to High Skilled Foreign Workers.")

    Oh, yeah! the woman from Bingaman's office said "Oh, THAT's a
    Republican sponsored bill!"

    Cynthia

    ++++++++++++++++++++++++++++++++++++++++++++++++++ +

    I, too, phoned Cornyn's office and the person I spoke with kept insisting
    that the H-1B's had to be paid the same as Americans and then he said the
    senator wants to make America more competitive by bringing in skilled
    workers. I directed him to Norm's article in the San Francisco paper and to
    the Programmers Guild. I asked him how it would make our nation more
    competetive to bring in a worldwide supply of cheaper labor to take our
    jobs. Silence.

    LC Evans
    http://lcevans.com
    Jobless Recovery
    A satirical novel about American job losses



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  • godspeed
    10-27 01:38 PM
    visit my blog, it has to-do's after GC.
    enjoy
    Hi All,

    After 7 years of stay in the US and 3 green card applications later, I finally got the 485 approval e-mail.....aaahhha......I feel so relaxed now.

    However I did not get any FP notice yet! Do you know if Biometrics is a requirement for issuing the physical green card and also any idea how long it takes to get the card from this point of time.

    following is the current status in the online status of my 485:


    Post Decision Activity

    On October 26, 2010, we mailed you a notice that we have approved this I485 APPLICATION TO REGISTER PERMANENT RESIDENCE OR TO ADJUST STATUS. Please follow any instructions on the notice. If you move before you receive the notice, call customer service at 1-800-375-5283.

    For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.





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  • glamzon
    07-23 03:41 PM
    R.William



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  • nixstor
    06-24 05:14 PM
    may be this will help you

    485 fess from Jul 30th will be 1010USD. This also has EAD & AP fees built into it and you can keep on renewing EAD & AP with out paying fees every year unil you get your GC.

    485 fess until Jul 30th is 395 USD and you will pay separate fee for both EAD & AP every year until you get GC.

    How can we expect to pay 395 USD for GC and get free EAD & AP every year? makes sense?





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  • kinvin
    04-07 11:32 AM
    yes
    you have to through the appointment et al.



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  • IllinoisGC
    05-26 01:09 PM
    Wondering, can any body clarify what 'now pending standard processing at a USCIS office.' means - if its a good sign - why and any experiences?? also 'a USCIS office' means National Benefits Center (MSC) or a local office?

    We really appreciate some one posting on this. Thanks in advance

    -------------------------------Status update on May 26 2009 ---------------

    Receipt Number: LINXXXXXXXXXX

    Application Type: I485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR TO ADJUST STATUS

    Current Status: This case is now pending at the office to which it was transferred.

    The I485 APPLICATION TO REGISTER PERMANENT RESIDENCE OR TO ADJUST STATUS was transferred and is now pending standard processing at a USCIS office. You will be notified by mail when a decision is made, or if the office needs something from you. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address. We process cases in the order we receive them. You can use our processing dates to estimate when this case will be done, counting from when USCIS received it. Follow the link below to check processing dates. You can also receive automatic e-mail updates as we process your case. To receive e-mail updates, follow the link below to register.

    this is final stage of processing, get ready for GC stamp on passport.
    Good luck.





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  • sweet_jungle
    10-06 12:08 AM
    I am also interested in this topic. My wife is working curently using OPT. But, she is waiting for EAD also. So, once 485 EAD comes, she will be in similar situation.
    Lawyer has suggested using 485 EAD once it comes.
    Anyway, for travelling, AP has to be used. Once you travel on AP and come back, you cannot continue working using OPT. You have to use 485 EAD. So, it is better to switch to 485 EAD to avoid confusion.
    I am planning to keep her on OPT till Dec 31. It will make our tax filing easier next year. From January, she can switch to 485 EAD and pay social security tax.
    Let me know if you can some concrete info on this.

    Is it possible that we get cuaght by IRS audit since I wonder how safe it is to NOT pay social security tax after you have filed 485? I was reading the other thread about IRS audit and am a bit worried.



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  • gcspace
    08-13 07:58 AM
    I don't know the exact time my application reached on July 2nd.
    I havn't yet received my receipts nor checks cashed.
    Guess we just need to wait and wait..





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  • eastindia
    05-14 02:57 PM
    Any idea what Tech firms are doing to help CIR?



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  • sen
    11-01 06:43 PM
    I ran into the same issue when my wife I-94 was about to expire even though she had valid visa in her passport till 2010. We just crossed over to Canada (through Detroit) and after spending an hour we returned back to US. On our entry, we requested the officer to issue new I-94 since it was expiring. He directed us to the immigration officer who issued a new I-94.


    My I-94 has expired becoz it was issued up to my passport validity. If I have to renew it, is it a good option to cross border and get a new I-94, like going to Mexico or Canada. Please advice. I am not sure how to proceed. No one knows the procedure. Please if anyone knows, advice.





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  • BharatPremi
    11-09 10:00 AM
    Poll is closed but I am in. I will be at booth from 7:00 PM onwards.



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  • snathan
    08-05 12:06 AM
    My first 3 years of H1B visa and I-94 expired on december,31,2009. My employer applied for my H1B renewal and got the approval notice (797A with I-94 part in the bottom valid from 1/1/2010 till end of 2012) expiring in end of 2012. I went to Canada for 4 days and got my 3 year visa extension stamped which is valid till end of 2012 for the same employer. They took off my old I-94 when I left to Canada and did not issue a new I-94 while entering the US. The officer just took a look at the 797 and said that I am good with the bottom part of the 797 itself and did not stamp any expiry date on the bottom part or did not issue a new I-94(white card).He just stamped the entry date and POE name on my passport. I checked with the CBP officer and she said that since the renewed visa and 797 is valid till end of 2012, I can use the bottom part of the 797 as the I-94 and it is valid till end of 2012. Is this correct?

    I noticed that the bottom part of the 797 has the same number as my old I-94.

    I believe that I should get a new I-94,but the officer was not ready to believe that and kept saying that the 797 bottom part is enough.

    The U.S. Government has undertaken a variety of efforts since September 11 to enhance border security. If you are traveling to the U.S. with a nonimmigrant visa, and are taking a short trip(s) to Canada and Mexico, review the Automatic Revalidation webpage on the CBP website. Anyone who has applied for and been refused visa issuance at a border post is prohibited from re-admission or re-entry to the U.S. in the same visa category, even though they are in possession of a valid I-94 form. Travelers who are citizens of countries on the State Department's list of State Sponsors of Terrorism are prohibited from re-entering the U.S. using solely an I-94 form if their visa has expired.

    http://cbp.gov/linkhandler/cgov/travel/id_visa/revalidation.ctt/revalidation.pdf





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  • gauravsh
    03-28 03:49 PM
    Thanks !!



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  • h1techSlave
    05-14 12:31 PM
    Urbana is a new community. Home taxes are twice compared to similar houses in VA. It is also around 50 miles from DC.

    If you are looking in 300K range with best schools,large indian community then Villages of Urbana in Frederick is one of the better choices.
    The property tax is pretty low here because it is in Frederick county. I hope this information helps you. The elementary,middle and high schools here are one of the best in the state.





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  • txh1b
    04-16 06:32 PM
    Now the question is that: how long usually does it take for the response after I submit my evidences? It has to be 60 days or less, but I heard differently. Can anyone help me with that?

    If your PD is current and a visa number available, they should be approving the petition soon after.





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  • xgoogle
    06-25 07:59 AM
    So we can apply for an EAD and AP renewal when the time comes on our own?
    Also is AC-21 filing involved in this case?
    And would my current employer need to do anything or need to not do anything?

    Thanks,





    ajju
    03-01 12:04 PM
    Hi All,
    I used to commute across the border from Canada to work(on h1b) between 2004 and 2006. My passport was stamped just the first time and never after that.

    I've heard of this behavior at PoE especially for Mexico and Canada.. I think we need to remind and ask for stamping.. even if they say its okay...

    I landed in Canada in 2004 and came back in 2 weeks... My original I-94 had expired.. but I 'd new one on my new H1 approval.. So they gave me a new I-94.. My wife's I-94 was valid.. so she didn't get a new I-94... But her passport was stamped... May be because it was first trip...

    I agree with gokhale35 to provide evidence from CC... but if its older than a year.. most CC bills won't be available... lease copy may be possible... I think affidavit plus letter from employer may suffice.. But a lawyer would be your best bet anyways...

    Good luck... should be resolved soon.. and you'll get GC soon...
    Where's mine :-(





    tnite
    07-19 09:49 AM
    Does anyone know if it is easier to get medical residency on EAD as opposed to H1/J1 or are you considered in the same boat as H1/J1 applicants?

    thanks


    On H1/J1 you have to find a sponsor to accept you in their program. With EAD you can work for anyone.Of course the pool of institutions accepting folks on EAD is bigger than H1/J1 .

    Whether it's easier or not depends on your credentials , talent etc



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