H1B Application and extension expenses. Who pays for that? Employer or Employee?

[aaron2020 11,651]

It's hard for me to believe that you and your fellow H1-b visa holders were completely unaware that something shady was going on.

As Boiler pointed out, a simple search of the H1-b visa would have revealed what the H1-b requirements are and how your company was not complying with them.

Google search for "H1-b requirements" returned this as the first link; http://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

Understanding H-1B Requirements

Below are some key requirements you must fulfill to apply for an H-1B Visa. For each requirement, we have included forms of evidence that you may submit to meet the requirement and other tips to help you prepare your petition.

Collapse all | Expand all

Requirement 1 - You must have an employer-employee relationship with the petitioning U.S. employer.

In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.

+ How do I demonstrate an employer-employee relationship if I own my own company?

If you own your company you may be able to demonstrate that an employer-employee relationship exists if the control of your work is exercised by others. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes:

• Term Sheet
• Capitalization Table
• Stock purchase Agreement
• Investor rights Agreement
• Voting Agreement
• Organizational documents and operating agreements

Note: Please state clearly in your cover/support letter that you are one of the founders or owners of the company and explain how the evidence submitted shows that your company has the right to control the terms and conditions of your employment..

Requirement 2 - Your job must qualify as a specialty occupation by meeting one of the following criteria:

• A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

+ How do I prove that my position within my business is in an occupation that normally requires a degree in a related field?

USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate that a degree in a related field is normally the minimum requirement for the position, examples of evidence you may submit to demonstrate that the position normally requires such a degree includes:

• Copies of past position announcements, if relevant, that reflect the minimum requirements for the position and which show that your company normally requires a degree for the position. Your position is so specialized or complex it can only be performed by someone with a degree, including a detailed description of the petitioner’s business/products/services and the duties of the position.
• A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field).
• Job listings, letters and/or affidavits from other employers reflecting the minimum requirements for the position and which shows that the degree requirement is common to the industry in parallel positions among similar organizations.
• Written opinions from experts in the field explaining how the degree is related to the role you will perform.

Requirement 3 - Your job must be in a specialty occupation related to your field of study. + How do I show that my degree is related to the specialty occupation?

Some of the evidence you may submit to demonstrate that your degree is related to your position includes:

• A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.
• Written opinions from experts in the field explaining how the degree is related to the role you will perform.
• Printouts from online resources describing the degree fields normally associated with the occupation.
• Evidence that similar companies in your industry require similar degrees for similar positions.

+ Can I qualify without a bachelor’s degree?

If your position qualifies as do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:

• Holding an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
• Having education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and having recognition of expertise in the specialty. through progressively responsible positions directly related to the specialty. In general, 3 years of work experience or training in the field is considered as equivalent to 1 year of college.

Note: Submit equivalency documents for all foreign degrees. If work experience is taken into account, please submit an equivalency evaluation from a college official. If the equivalency evaluation is not from the registrar, submit a statement from the school’s registrar to establish that the particular evaluating official is authorized to grant college-level credit on behalf of his or her institution.

Requirement 4 - You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.

The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. To view the wage database and estimate the prevailing wage that may be required for your position, click here.

+ How do I demonstrate that I will be paid the appropriate wage?

To demonstrate you will be paid the appropriate wage, you must submit a Labor Condition Application (LCA) for your position, certified by the Secretary of Labor, which states, in part:

The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

If you are currently working for the company (e.g. working for the company you started while on OPT), some of the evidence you may submit to demonstrate that you will be paid the appropriate wage includes:

• Your most recent paystubs
• Your most recent W-2 showing the wages you received

If you are not currently working for the company, you may submit a letter from the company attesting to the wage that you will be paid once employed as an H-1B.

Requirement 5 - An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

I’m ready to apply, what’s next?

Once you have determined that the H-1B visa classification is the best pathway for you and you are ready to apply, you can find the full application process and legal requirements outlined on USCIS’s website.

Note: When submitting evidence to USCIS, it is important to fully and clearly explain how the submitted evidence establishes eligibility for petition approval. The more clearly the petitioner can articulate his or her eligibility, the more efficiently and consistently USCIS can review and process the petition and determine eligibility for the benefit sought.

Edited September 12, 2015 by aaron2020

[ppihtr123 68]

sorry for the separate posts. I can't modify the previous to add this information and I don't know why.

I wanted to add that I am a Fully Licensed Teacher. All my trainings to get the full license (PERMIT - PROVISIONAL Lic.- FULL Lic.), I paid them out of my pocket please. So if you see any benefits or advantage of being an H1B in such a place, kindly let me know.

You should report them to DOL so this will all stop.

An educator claiming ignorance??? If you have a license, why did you stay there so long at that pay rate / benefits?

Easy...Because they would do the sponsorship...You know EXACTLY the benefit you sold out for...A Visa to stay in US...But now you want a refund of fees now that time is up and they can't help you anymore as you approach your maximum time on an H1B.

To be clear.... I have no pity for you or them as you have made your deal with a devil and now you are upset years later.

[Ben10 2]

Whatever......didn't ask for PERSONAL JUDGEMENTS.

I ask questions, I need answers. If you do not have, do not post.

I need no one to judge me.

PS: If further posts are non-constructive and carry only personal judgements, I request the Moderator to close/end my thread. Thank you.

Edited October 7, 2015 by Ben10

[Boiler 43,857]

You got answers.

[N400applicant 7]

I saw that you visited my profile and in turn checked out yours.

Have no idea what you were looking for in N-400 related topics (where I usually post), but anywho, since I am here and have read your post I will chime in with my two cents.

#1. Short answer to your topic questio is: H-1b is something that employer does, from A to Z, and paying fees is inseparable part of his or her (employers') responsibility. Having employees pay for it is illegal.

#2. What you can do is file a complaint with DOL. They are the ones who are in charge of enforcing the labor laws and regulations in connection with issuance of H1b visas. They may or may not elect to pursue the case, but if they do you might be entitled to some compensation.

#3. You may also contact FBI or USCIS, if you believe the school had engaged in what is a Federal Crime or conspiracy to defraud USCIS.

For more information consult an attorney , immigration or labor, in the area where you live.

Good luck

NOTE: I AM NOT AN ATTORNEY. THE ABOVE IS NOT A LEGAL ADVISE. FOR LEGAL ADVISE CONSULT A LICENSED ATTORNEY!

Hello guys;

I am back to this forum with a quick question regarding the H1b fees and attorney's legal fees.

I saw in this forum and in some online researches that most people have their employer pay for the H1b process related fees.

I 'd like to know WHO, ACCORDING TO THE LAW, is required to pay for the H1B (Change of Status in the USA, and Extension)

My personal and sad story is I am employed by a Not-for-profit company (an English School in NYC). I was under F1 there and then I changed my status from F1 to H1B. I paid out of my pocket all the related fees (USCIS fees, Attorney's legal fees, Fraud prevention fees).

After approval the time came to extend it. I paid again out of my pocket all the extension fees. I got a very short extension (1 year) and even asked for some help regarding the short duration in this forum.

My H1B will expire very soon again, now I want to know if it is my financial responsibility to pay out of my pocket for the extension.

- Am I allowed by law to pay out of my pocket?

- Is my employer exempt from the law requiring him to support the fees?

- Is there any way to get my money back?

PS: I never received any compensation in any form for all the money I have paid for my H1B application and extension.

I am free to share any information you might need for my help.

Thanks guys.

Edited October 29, 2015 by N400applicant

[Ben10 2]

Thank you N400applicant;

I usually go to N400 related topics to have some news and info on naturalization because my wife is waiting for her oath letter.

I will be consulting a lawyer for my case in the meantime.

Thanks again for your advice.

I saw that you visited my profile and in turn checked out yours.

Have no idea what you were looking for in N-400 related topics (where I usually post), but anywho, since I am here and have read your post I will chime in with my two cents.

#1. Short answer to your topic questio is: H-1b is something that employer does, from A to Z, and paying fees is inseparable part of his or her (employers') responsibility. Having employees pay for it is illegal.

#2. What you can do is file a complaint with DOL. They are the ones who are in charge of enforcing the labor laws and regulations in connection with issuance of H1b visas. They may or may not elect to pursue the case, but if they do you might be entitled to some compensation.

#3. You may also contact FBI or USCIS, if you believe the school had engaged in what is a Federal Crime or conspiracy to defraud USCIS.

For more information consult an attorney , immigration or labor, in the area where you live.

Good luck

NOTE: I AM NOT AN ATTORNEY. THE ABOVE IS NOT A LEGAL ADVISE. FOR LEGAL ADVISE CONSULT A LICENSED ATTORNEY!

[N400applicant 7]

Ok. Good luck

Thank you N400applicant;

I usually go to N400 related topics to have some news and info on naturalization because my wife is waiting for her oath letter.

I will be consulting a lawyer for my case in the meantime.

Thanks again for your advice.