1) QUESTION:

I am a Physical Therapist and am licensed to practice in NY. Could I qualify for an H-1B petition for another state? Is it mandatory that I have a license for the state of intended employment?

ANSWER: 

An H-1B beneficiary must be able to show that they are eligible to begin employment in the offered position on the start date requested on the petition. For those positions where a state license is required to work in that state, such as is required for physical therapists, the petitioner must show that the PT is licensed in the state in which they will be employed. Being licensed in a different state is not sufficient unless it can be shown that the state of employment would allow the beneficiary to work on the current license.

There is an exception to this rule where the State requires the beneficiary to provide a social security number before they will issue the license, and the beneficiary cannot get a social security number until they are in H-1b status. Where the petitioner can show that the only reason the license has not been issued by the state is because of the lack of a social security number, USCIS will resolve this circularity problem by approving the H-1B petition for an initial period of one year.

2) QUESTION:

Can a company ask an employee to pay for the attorney fees and filing fees for the company to sponsor the employee for an H-1B visa?

ANSWER:

There are several fees and costs associated with a company filing an H-1B petition. These include the legal fees, various expenses such as the cost of translations, and filing fees. There are also several filing fees including 1) the I-129 filing fee (currently $320); 2) the Fraud Prevention Fee ($500 one-time fee); 3) the Training Fee ($750 or $1,500 depending on the size of the company); and 4) the Premium Processing Fee (an optional $1,000 fee to have the petition adjudicated in 2 to 6 weeks).

While there is some debate over whether all of these costs are the responsibility of the company, a series of recent Labor Department and court decisions have come down on requiring the employer to pay them all. In part, these costs are a penalty put on the company to make the H-1B less attractive so that companies will be more inclined to hire a U.S. worker rather than an H-1B employee.

There is also some disagreement whether the employee paying any of these fees is completely barred or merely would mean a deduction from the wage paid to the employee. If it is just a deduction, then if an employer can show the prevailing and actual wage are still met, then the employer would be okay. But some of the decisions are saying the employer must pay regardless of the prevailing/actual wage determination so the safer route would be for the employer to pay the costs.  Another issue is whether a third party can pay the fees. This is also unclear, but a conservative view is at least to avoid situations where the payer of the fees could be seen as essentially the same as the beneficiary (such as a relative covering the costs).

There are serious consequences for being wrong here. Employers can be required to pay back wages that would include all of those fees and potentially face debarment from using the H-1B program as well.

And since USCIS is now conducting site visits for many H-1B employers and part of their questioning is about who paid the costs for the employee’s H-1B petition, the issue has become front and center.