Stephen M. Perlitsh, P.C. Attorney at law
Information for Employers
We work closely with employers to ensure that the immigration needs of their employees are met. Below is some important information that employers seeking to employ a foreign national in H-1B status should be aware of.
Payment of Fees Relating to an H-1B Petition
US law states that the expenses for preparing an H-1B petition, including attorneys fees, are an employer business expense and cannot be paid by the beneficiary. This office requires the beneficiary to obtain payment of the fees allocable to preparing the H-1B petition from a third party. The beneficiary has been instructed not to reimburse the third party. We are relying on an interpretation of the law which apparently allows for a third party payment. This office makes no representations as to the acceptability of third party payment. Should you wish to discuss this matter further, please do not hesitate to call.
Effective March 30, 2006, an additional filing fee of $1,500.00 ($750.00 if you employ less than 25 employees) is applicable. The beneficiary is prevented from paying this fee. The employer or a third party, neither of whom are allowed to be reimbursed by the beneficiary, must pay this filing fee.
The following entities are exempt from paying the $750.00/$1,500.00 fee:
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An employer that is a primary or a secondary institution of higher education as defined in 20 U.S.C. §1001 (a) of the Higher Education Act of 1965 and 8 CFR 214.2(h) (19) (iii).
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A non-profit entity related to or affiliated with any such institution.
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A non-profit entity which engages in established curriculum-related clinical training of students registered at any such institution.
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A non-profit research organization or governmental research organization, as defined under 8 CFR 214.2(h) (19) (iii).
Employer Responsibilities Regarding The Labor Condition Application
An employer seeking the services of an H-1B non-immigrant has several responsibilities and obligations. The preliminary step to an H-1B petition is the submission of a Labor Condition Application (hereinafter referred to as "LCA") to the Department of Labor. By completing the LCA, the employer agrees to several attestations regarding an employers responsibilities, including the wages, working conditions, and the benefits to be provided to the H-1B employee.
The employer must make the LCA and necessary supporting documentation available for public examination at the employers principal place of business in the United States, or at the place of employment, within one working day after the date on which the LCA is filed with the Department of Labor.
The employer is obligated to create and maintain a Public Inspection File containing the Labor Condition Application and other documentation provided by this office. The Public Inspection File must be maintained by the employer for anyone who requests to see it. The Department of Labor may request it if they investigate compliance with representations contained on the LCA. The chances of an inspection cannot be predicted. The completion of the Public Inspection File is the responsibility of the employer. This office does not take any responsibility regarding the completion or maintenance of the file. It is beyond the scope of the legal representation on this case by this office, to assure full compliance with all Regulations pertaining to the Labor Condition Application.
Employers must take all efforts possible to comply with all the rules and regulations pertaining to the Labor Condition Application. Failure to do so could lead to steep monetary penalties ranging from $1,000.00 to $35,000.00 per violation, as well as civil and criminal liabilities.
110 West 34th Street
Suite 300
New York, NY 10001
Tel: (212) 840-3878
Fax: (917) 510-0872
