My Employer Made Me Pay For My H-1B Application And/Or Deductions From My Paycheck. Can They Do That?

On behalf of Peterson, Berk & Cross, S.C.

Nov 02, 2009
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Were you forced to pay for your H-1B application fees? Did your employer order you to travel to another city for work and make you pay for your own hotel? Did your employer make you pay for your plane trip to the United States from your home?

Can your employer do that?

In this article we explain what your employer may and may not make you pay for as an H-1B employee. See 20 CFR 655.731.

Prohibited Deductions

An H-1B employee, whether through payroll deduction or otherwise, can never be required to pay the following:

1) A penalty (as defined by state law) for the employee’s failure to complete the full employment period;

2) Any part of the $750/$1500 statutory Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) petition filing fee; and/or

3) Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate, including:

  • Any expenses, including attorneys’ fees, directly related to the filing of the Labor Condition Application (Form ETA 9035 and/or ETA 9035E);
  • Any business expenses, including attorneys’ fees and application fees, directly related to the filing of the H-1B petition (Form I-129/129W)
  • Tools and equipment; and
  • Travel expenses while on employer’s business. (Initial transportation to the United States is not considered a business expense, meaning the employer can require the employee to pay for the trip.)

Permitted Deductions

Deductions, other than those excluded above, may be made, even if they reduce the H-1B worker’s pay below the required wage rate, only when the deductions satisfy one of these three categories:

1) Required by law (e.g., income taxes); or

2) Reasonable and customary (e.g., union dues, insurance premiums); or

3) Voluntarily authorized by the H-1B worker which meet all of the following standards:

  • There is a voluntary, written authorization by the employee;
  • The deduction is for a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging, so long as the food and lodging expense is (a) not incurred while traveling on the employer’s business; and (b) not in circumstances indicating that the employee’s housing or food are principally for the employer’s benefit (e.g., employee living at worksite in “on call” status);
  • For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
  • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act

Additional Information

For more H-1B employee rights information, please visit the blog’s main page athttp://www.h1blegalrights.com/. For information about Legal (Attorney) Services for H-1B employees, please visit here.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.