Introduction
The H-1B visa process is a common route for skilled professionals to work in the United States, but it’s also surrounded by complex regulations—especially when it comes to visa costs and wage compliance. Employers and employees alike must understand their financial responsibilities to remain compliant with US laws and avoid serious penalties.
H-1B Visa Wage Requirements: What Must Employers Pay?
Employers sponsoring an H-1B worker are legally required to pay the “required wage”—whichever is higher between the actual wage (paid to similarly qualified employees in the same role) or the prevailing wage (the average wage for the occupation in that specific geographic area). These rules ensure that H-1B visa holders are compensated fairly and that US labor standards are protected.
Actual Wage vs. Prevailing Wage
- Actual Wage: The salary paid to other employees with similar experience and duties within the company.
- Prevailing Wage: The average wage for the position in the region, as determined by the Department of Labor or through approved wage surveys.
Employers must always pay at least the higher of these two amounts to remain compliant.
H-1B Visa Fees: Who Pays for What?
Fees Employers Must Pay
By law, employers are required to pay several mandatory H-1B visa fees and cannot pass these costs on to the employee in any form:
- ACWIA Fee (American Competitiveness and Workforce Improvement Act):
- $1,500 for employers with over 25 employees
- $750 for small employers (25 or fewer employees)
- Fraud Prevention and Detection Fee: $500 for all initial H-1B petitions or changes of employer.
- Asylum Program Fee: $600 for large employers, $300 for small employers (effective 2024).
These fees must be paid by the employer and cannot be recouped through salary deductions or any other method.
Premium Processing Fee
The Premium Processing fee (currently $2,805) is optional and speeds up application processing. If the employee requests this service for personal reasons (such as travel or a faster start date), they may cover the fee—provided the employer documents this request. However, if the premium processing is for the employer’s benefit, the employer must pay the fee.
Legal Fees and Other Costs
Most legal and filing fees related to the H-1B process—including attorney fees and costs for the Labor Condition Application (LCA) or Form I-129—are considered employer business expenses. These cannot be deducted from the employee’s wage, unless the services are unrelated to H-1B sponsorship (for example, a separate green card process not tied to H-1B employment).
Repayment Agreements and Early Termination
Employers cannot penalize H-1B workers for leaving the job early if such penalties would reduce their net wage below the required level. However, contracts may include liquidated damages—a reasonable estimate of actual financial loss due to early departure—if they comply with state law and are not punitive.
Risks of Non-Compliance
Unauthorized deductions or shifting required costs to the employee can lead to serious consequences for employers, including:
- Back wage obligations
- Civil monetary penalties
- Debarment from the H-1B program or other immigration benefits
Even if an employee’s net wage appears compliant, any deduction deemed unauthorized by the Department of Labor can result in violations.
Final Thoughts
H-1B visa compliance is critical for both US employers and foreign workers. Employers should adopt a conservative approach and take responsibility for all required costs, maintaining clear documentation and legal compliance at every step. When in doubt, consult an experienced immigration attorney to avoid risks and ensure your H-1B sponsorship stands up to government scrutiny.