Fees that the Employer Cannot Deduct from an H-1B Worker’s Payroll

By: Joseph Chua

The U.S. Department of Labor Wage and Hour Division has released a fact sheet dated [August 2009] and titled, “Fact Sheet #62H: What are the rules concerning deductions from an H-1B worker’s pay?”. This fact sheet states which fees are and are not allowed to be deducted from an H-1B worker’s payroll.

The penalty for each violation may be a fine on the employer of $1,000, issuance of an administrative order requiring the return to the non-immigrant of any amount paid in violation of INA § 212(n)(2)(C)(vi)(I), or, if the non-immigrant cannot be located, issuance of an administrative order requiring payment of any such amount to the general fund of the Treasury. according to Act 212(n).

These such fees are the following:

  1. A penalty (as defined by state law) for the worker’s failure to complete the full employment period (INA § 212(n)(2)(C)(vi)(I));
  2. Any part of the statutory training and processing fee imposed by the Department of Homeland Security’s U.S. Citizenship and Immigration Services. This is the ACWIA fee which is $1,500 where employer employs 25 or less full-time equivalent employees in the U.S. including those at any U.S. affiliate or subsidiary; or $750 where the employer employs 24 or less full-time employees in the U.S. including those at any U.S. affiliate or subsidiary (USCIS) (INA § 212(n)(2)(C)(vi)(II));
  3. Any part of the statutory $500 fraud protection and detection fee imposed by USCIS (INA § 214(c)(12)(A));
  4. Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate (20 C.F.R. § 655.731(c)(9)(ii) and (iii)(C)).

Please visit the pertinent links below for the full text of the fact sheet.

https://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62H.pdf

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