H-1B Filing Fees – Who Can Pay What?

Our office received many inquiries by both H-1B sponsor companies and employees about what kind of fee payment arrangement is permissible under the H-1B regulations.

Background of H-1B Filing Fees

There are several H-1B filing fees, which are applied differently depending on the employer (private employer v. university or non-profit research entity) and on the type of petition (new H-1B, first extension or second/subsequent extension).  We are happy to guide on the applicability of these fees.

Regardless of their applicability, the H-1B filing fees are:

1. H-1B filing fee – $320;
2. Fraud prevention fee – $500;
3. ACWIA fee – $750 (for employer with 25 or less employees) or $1,500 (for employers with 26 or more employees); and
4. Premium processing fee (optional) – $1,000.

Fraud Prevention Fee Must be Paid by Employer

The only requirement with respect to who pays a specific H-1B fee is that the $500.00 fraud prevention fee be paid only by the employer.  The rest of the H-1B filing fees can be paid by either the employer or the employee.

What Happens if the Employee Pays the $500 Fraud Prevention Fee?

In cases where the $500.00 fraud prevention fee is paid by the employee, this cost will be deducted from the total wage paid to the H-1B beneficiary when determining whether s/he has received the required wage.   Pursuant to H-1B regulations, the “required” wage is the higher of the actual or prevailing wage.  The “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.

As a result, if the employee is paid an amount which is $500.00 or less more than the required wage (as defined above), then the employer may be deemed to be in violation of the H-1B regulations requiring payment of the so called required wage.

Conclusion

To avoid uncertainties associated with whether the employer has paid the required wage, we urge our H-1B clients to structure the fee payment in a way that the $500 fraud prevention fee is paid by the employer.   The rest of the fees may be paid by either the employee or employer, as the parties negotiate or as the employer’s policies dictate.