Friday, July 17, 2009

Who can pay the H-1B costs - employer or employee?

Many foreign nationals report that their employers ask the employees to pay the costs of getting H-1B status for themselves. If the employees are not asked to pay up-front, they may be asked to sign a reimbursement agreement, agreeing to repay the costs if they leave the company within a certain time.

H-1B Costs

There are 2 main costs in getting H-1B approved: government filing fees and legal fees. The filing fees are:
A. $320 I-129 fee
B. $1500 Education and Training Fee (For 1st H-1B petition and first extension) fee is $750 if under 25 employees.
C. $500 Anti-Fraud Fee (for employer's first H-1B petition for that foreign national).

Legal fees vary by attorney, of course.

What can the employee pay?

An employee cannot pay any part of the training fee listed at B. above. This is not permitted under any circumstances. Many attorneys believe that the employee legally can't pay the $500 Anti-Fraud Fee either. This is not correct - CIS has specifically said that this fee "does not need to be paid only by the petitioner." (AILA Service Center Operations teleconference 4/11/05).

There is a possible restriction on employees paying any of the rest of H-1B fees, if the salary being paid to the employee is very close to the "prevailing wage" or the "actual wage" for the position.

"Prevailing wage"is what the employer must agree to pay the foreign national, and it is what a survey shows is the normal salary for that position in that location.
"Actual wage" is defined as "the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question." If there is nobody else with similar experience and qualifications for the job (because the H-1B worker is the only person in that category), then the "actual wage" would be whatever is paid to the H-1B employee.

There is an argument that if an employee pays any of the H-1B fees, this must be considered as a deduction from salary. If the salary, after this deduction, is below the "prevailing wage" or "actual wage" (whichever is higher), then there is a problem.

Are reimbursement agreements enforceable?

Apart from the limitation on recouping fees above, the question of whether a reimbursement agreements is enforceable is a matter of local state employment and contract laws.

Wednesday, July 15, 2009

Permanent residence not abandoned despite being outside the US for 2.5+ years - BIA

Many people with US permanent residence (green cards) want to know how long they can stay outside the US without abandoning their permanent residence. The Board of Immigration Appeals (BIA) recently made a very interesting decision in a case involving this issue. They ultimately considered that a person had not abandoned his permanent residence despite being outside the US for over 2.5 years.

In this BIA case, the foreign national (Mr. X) returned to the US in 2000, having been outside the US
for 2 years and 9 months. On re-entering the US, Mr. X explained that he had left the US to care for his sick grandmother. The Department of Homeland Security (DHS) claimed that Mr. X did not leave to care for a family member and that he intended to abandon his lawful permanent resident status.

The BIA considered case history on this issue, including Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005). In Katebi, the court stated that "when an alien has a colorable claim to [permanent] resident status, the DHS has the burden to prove that the alien is not eligible for admission by clear, convincing, and unequivocal evidence."

The BIA, citing Katebi stated that
a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.

Ultimately, the issue is one of intent, and not, as the Immigration Judge's opinion suggests, whether the absence from the United States was "necessary" in the first place......
In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable....

Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country.

In the instant case, Mr. X took no steps to establish significant ties in Hong Kong that would show that he intended to live there permanently. Instead, he apparently spent his time caring for an elderly relative and helping his sister, who was going through a divorce while caring for two small children. The BIA notes that Mr. X "did not have traditional employment in Hong Kong, did not have significant income there or open a bank account, and did not attempt to secure housing for himself." In addition, Mr. X had lived in the US for about 12 years after becoming a permanent resident, and had considerable family ties in the US.

Despite the above decision, which is non-precedent, we still urge all permanent residents who will spend 6+ months outside the US to get re-entry permits to be safe. See prior posts on this issue:

Monday, July 13, 2009

Visa Bulletin for August 2009 issued.

The US Department of State has released the new Visa Bulletin for August 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it has been since May 2009. The biggest change is that the priority date for India and China EB-2 categories have moved forward again. In June and July 2009, these categories retrogressed by 4 years (India) and 5 years (China). Both categories advance by almost 4 years, each to October 1, 2003.