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By Marc Topoleski, Partner in Siskind, Susser, Haas & Devine’s Detroit-area Office Is it legal for the employer to ask the employee to pay H-1B related application fees ($ 1000 + $ 110) and attorney fees?
With respect to the $ 110 INS filing fee and any attorney fees, any amounts paid by the employee act to reduce the wage paid by the employer. Thus, if the payment of these expenses by the employee reduces their wage below the required wage (greater of actual wage or prevailing wage) stated on the LCA, the employer would be considered to have violated the wage regulations by paying less than the required wage. However, if after paying these expenses, the employee's wage is still above the required wage, then payment of these expenses by the employee is permissible.
With respect to the $ 1000 retraining fee, the law is very clear that the employer cannot require the employee to pay, or to require the employee to reimburse the employer, for the $ 1000 amount.
Does an individual have any legal recourse if the company that previously agreed to sponsor the individual for a Green Card decides it is no longer willing to sponsor?
Under immigration laws, there is nothing requiring an employer to sponsor a Green Card if it does not choose to, whether the employer initially expressed an interest in sponsoring or not. However, depending on the facts, there could be a separate breach of contract claim if the promise to sponsor was contractual in nature. Such a breach of contract claim would be governed by the laws of the applicable state.
Is there any chance that Section 245(i) might be extended past April 30, 2001?
There are two bills that have been (H.R. 1242 and H.R. 1195) that have been introduced in the House of Representatives that would extend Section 245(i) six months and twelve months respectively. A similar bill has been introduced in the Senate (S. 778) that would extend Section 245(i) for one year. While there is not enough time for any of these bills to be passed into law before April 30, there is increasing hope that one of these measures will be passed soon, retroactively extending the deadline, as many in Congress are becoming aware of the many potential beneficiaries of Section 245(i) that might miss the deadline due to the slow and sometimes unreliable dissemination of information on the effects of this provision. To help make sure an extension of Section 245(i) is passed, write your Representative and Senators and urge them to support these bills.
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