Florida Immigration Attorneys

Who Must Pay for the H-1B Process?

The salary and most costs must be paid by the employer be paid by the employer. Within 30 days of the employee's entry into the US or within 60 days of a change of status (COS) if the employee is in the US, the employer must pay the stated wage on the petition. The employer is also required to pay the costs for the H-1B petition process. The wage the employer must pay used to be 95% of the prevailing wage but that has changed and the employer must now pay 100% of the prevailing wage.

The employer may not "bench" a full-time or part-time H-1B due to lack of work. That is an H-1B employee must be continually employed and paid while in the US. An employer is permitted to give a prospective employee a monetary or non-monetary signing bonus such as stock options or a percentage of the business.

While in the US and employed it is not a violation of status for the H-1B employee to receive leave under the Family Medical Leave Act. Also, a penalty may not be levied against an H-1B employee for leaving the employer. A liquidated damages clause is permissible as long as it is in compliance with the laws of the state.

The employer is required to pay the reasonable costs of transportation to the H-1B workers home country if the employment is ended before the end of the period of admission. If the employee is not dismissed the employer is not responsible for transportation costs to the home country. The requirement to pay the return transportation does not apply when the employee chooses on his or her own to end the employment or when employment is ended when the authorized stay is over. The employer is not by statute required to pay transportation costs for H-4 family members. For an employee to obtain reimbursement from the employer, this requirement is treated as a contractual agreement. In the event the employer fails to comply with the requirement to pay return transportation costs and does not notify CIS of the early termination and does not pay the return transportation costs, the employer may be required to pay the employee because there has been no bona fide termination of employment.

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