Monthly Archives: May 2014

Who Pays The Filing Fees for a Work Visa: Employer or Employee?

opt-2A lot of people looking to secure U.S. work visas like the H-1B wonder who pays the fees: the employer or the prospective employee? Generally speaking, the employer must pay for the attorney fees and government filing fees associated with the H-1B petition and Labor Condition Application. This includes the fee associated with submitting Form I-129 ($325); the Fraud Prevention & Detection Fee ($500); and the ACWIA fee ($750 or $1,500 if over 25 employees). Premium processing is available for H-1B petitions at an additional filing fee of $1,225. Whether the employer or the employee pays this fee is debatable. However, a safe argument can be made that the employee/beneficiary can be responsible for this fee since it is optional. The employer is also responsible for paying for the reasonable cost of return transportation if the employee is terminated prior to the end of the H-1B status unless he/she voluntarily resigned.

What costs can the beneficiary/employee pay in association with an H-1B petition? In addition to the premium processing fee, the beneficiary can also pay for costs associated with translations, academic evaluations, and visa issuance fees at the U.S. consulate. The beneficiary/employee may also pay for the legal and filing fees associated with any dependent visas for spouses and children (i.e., H-4 visa).

Work Visa Options for Graduating F-1 and M-1 International Students

With graduation season just around the corner, it’s time to look at visa options for graduating international students. If you are in the United States on an F-1 or M-1 visa from a SEVIS school, you should be eligible for Optional Practical Training (OPT). OPT allows F-1 or M-1 graduates to work in the United States with an open work permit for up to 12 months. Students in STEM subjects (science, technology, engineering, math) may be eligible for an additional 17 months of OPT if the extension is applied prior to the expiration of the initial OPT. To qualify, the student must seek work directly related to his/her field of study. For example, a graduate with a bachelor’s degree in graphic design should seek employment in the graphic design field while on OPT. Graduating students may apply for OPT as early as 90 days before graduation, and up to 60 days afterwards.

Cap Gap

Those who are currently on OPT, and whose employers have filed an H-1B petition on their behalf, can bridge the gap between the end of OPT and the start of H-1B under the ‘cap gap.’ For example, if Annie’s OPT expires on July 15th but her employer filed an H-1B petition on her behalf of April 1st and it was approved, her OPT will automatically extend until October 1st, at which point her status automatically changes from OPT to H-1B. This is a good way for those on OPT to ensure that there is no interruption in their employment if the employer is sponsoring them for an H-1B. With the H-1B cap being reached quickly over the past two years, those who are on OPT in STEM subjects should apply for the STEM extension in order to ensure two bites at the H-1B apple in the event that they are not selected the first year that their employer files a petition.