Is paying for a US employer's visa sponsorship legal?

In the United States, it is illegal for a job candidate to pay for their own visa sponsorship, and it is also prohibited for employers to require candidates to pay for the visa sponsorship. This includes H-1B visas, L-1 visas, and other work-related visa categories.

Here’s a breakdown of why it’s not allowed:

1. H-1B Visa Regulations

The H-1B visa is the most common work visa for skilled workers in the U.S. The employer is required by law to pay the associated visa fees, which include filing fees, legal fees, and other administrative costs. The U.S. Citizenship and Immigration Services (USCIS) specifies that the employer must bear the financial responsibility for the visa application, not the employee.

• Employers must pay the following costs:

o Petition filing fees (base fee, American Competitiveness and Workforce Improvement Act fee)

o Attorney fees (if the employer uses an attorney for the petition)

o Fraud prevention and detection fees

o Public law fee (if the employer has more than 50 employees and more than 50% of them are on H-1B visas)

If the employee were to pay for any of these fees, it could be seen as a violation of U.S. labor laws, as it could be considered an abuse of the visa process.

2. Labor Condition Application (LCA) Requirements

For an H-1B visa, the employer is also required to file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA ensures that the employee is paid the prevailing wage for the position and that working conditions are fair. This application requires the employer to attest that they will comply with various legal requirements, including paying for visa processing fees.

3. Employer-Employee Relationship

Having the employee pay for the visa sponsorship can create a conflict in the employer-employee relationship. Employers are expected to shoulder the costs of the immigration process and not place any undue financial burden on the employee seeking sponsorship.

4. Possible Consequences

If an employer requires or allows the employee to pay for the visa fees:

• The employer may face legal consequences, including fines or being banned from sponsoring future workers.

• The employee’s visa application may be rejected or voided.

• The U.S. Department of Labor may investigate the employer’s practices, leading to penalties or loss of their ability to sponsor foreign workers in the future.

5. What Is Allowed?

In some cases, legal and application fees (other than the visa sponsorship fees) could be paid by the employee, but this would have to be explicitly agreed upon. For example, if a candidate hires an immigration lawyer to assist with documentation, the employee may choose to pay for this service.

Conclusion

It is illegal for an employee to pay for their own visa sponsorship, and it is illegal for employers to require employees to pay for any part of the visa process. The employer is responsible for covering visa costs, which include petition filing fees, attorney fees, and other associated expenses. If an employer is asking the employee to pay for visa costs, this could be a red flag and is something that should be reported.