Who should pay for H1b/H4 visa transfer fees?


Hdi

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Hi, Could you advise on what employee has to pay if employee dont join the company after signing an offer letter having following in it?

"If employee resigns within twelve months of the commencement date, or fails to commence employment with company, employee agrees to reimburse company for the expenses incurred in the H1B transfer excluding any fees that must be paid by the employer as mandated by law"

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A penalty for somebody on H1 for leaving a job early is illegal.

An H4 for dependents is not related to the job, so if an employer pays for that out of courtesy, they could ask for the money back.

But for the H1, the only thing that is allowed is paying for liquidated damages. And even then, it has to be reasonable.

20CFR655.731(10(1):

"

(A) The employer is not permitted to require (directly or indirectly) that the nonimmigrant pay a penalty for ceasing employment with the employer prior to an agreed date. Therefore, the employer shall not make any deduction from or reduction in the payment of the required wage to collect such a penalty.
    (B) The employer is permitted to receive bona fide liquidated damages from the H-1B nonimmigrant who ceases employment with the employer prior to an agreed date. However, the requirements of paragraph (c)(9)(iii) of this section must be fully satisfied, if such damages are to be received by the employer via deduction from or reduction in the payment of the required wage.

    (C) The distinction between liquidated damages (which are permissible) and a penalty (which is prohibited) is to be made on the basis of the applicable State law. In general, the laws of the various States recognize that liquidated damages are amounts which are fixed or stipulated by the parties at the inception of the contract, and which are reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party's breach of the contract. On the other hand, the laws of the various States, in general, consider that penalties are amounts which (although fixed or stipulated in the contract by the parties) are not reasonable approximations or estimates of such damage. The laws of the various States, in general, require that the relation or circumstances of the parties, and the purpose(s) of the agreement, are to be taken into account, so that, for example, an agreement to a payment would be considered to be a prohibited penalty where it is the result of fraud or where it cloaks oppression. Furthermore, as a general matter, the sum stipulated must take into account whether the contract breach is total or partial"...

 

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