Can the Employer Shift Immigration-Related Expenses onto the Employee?
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C. Violating DOL’s Cost -Shifting Rules can have Serious Consequences
Employers who have violated DOL’s cost shifting rules have found themselves in administrative enforcement proceedings seeking the disgorgement of their shifted costs and fees. Employers also risk, in addition to disgorgement, additional penalties, and even debarment for a term of years from participating in government immigration programs.
The rationale behind the DOL’s aggressiveness in this area is that cost shifting undermines the integrity of applications filed with the DOL wherein employers have committed to paying their foreign nationals a specified minimum wage consistent with DOL wage guidelines. Imposing on employee-beneficiaries the responsibility of paying attorneys fees and other costs associated with their Labor certification or H-1B processing , in effect, lowers their real wages below what DOL regulations require.
D. The Take Away
The trend since 1999 has been gradually to extend DOL’s prohibition against shifting onto foreign national employees the costs and expenses associated with obtaining certain immigration benefits. In 2011, one U.S. District Court upheld DOL’s position that attorneys fees charged for J-1 waiver work in the context of a prospective H-1B application was also a cost that fell within the purview of the DOL’s cost shifting rule and so had to be borne by the employer.
The take away is that employers should not assume that immigration costs can be shifted onto their foreign national employees and should consult with qualified immigration counsel before deducting such costs from an employee’s wages, or entering into an arrangement with a foreign national employee that would obligate him/her to reimburse the employer for such costs.
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