Which Immigration Fees an Employer Must Pay and Which It May Not Shift

There is no single rule about who pays for immigration sponsorship. The allocation is set separately in each program, by different agencies, for different reasons — and an employer that applies the H-1B rule to a permanent residence case, or the permanent residence rule to an H-2B recruitment budget, will get the answer wrong in both directions. This article separates the rules by the program each one belongs to.

Two things are true across the board. Dollar amounts change constantly and are not quoted here; the agency form pages carry them. And an unlawful cost shift is usually enforced as a wage violation, with back pay, rather than as an immigration penalty.

H-1B: the labor condition application drives the cost rule

An H-1B petition rests on a labor condition application filed with the Department of Labor. In it, the employer attests to paying the required wage and to specified working conditions. The Department's regulations then treat the employer's own business expenses of obtaining that status as the employer's to bear, and a payment by the worker that pulls actual compensation below the required wage is an unauthorized deduction.

Two consequences follow that catch employers out:

• The statutory training fee associated with H-1B petitions is expressly the employer's, and it may not be paid by, deducted from, or reimbursed by the worker in any form.
• The required wage must be paid free and clear. A "repayment agreement" that recovers sponsorship costs from a departing worker can be attacked as a disguised wage deduction, depending on what it recovers and how it is written.

The same body of rules requires the employer to pay the reasonable cost of return transportation abroad if it dismisses the worker before the end of the authorized period. That obligation belongs to the employer alone, and a worker who resigns is generally outside it.

Watch out: "The employee offered to pay" is not a defense. The rules operate on what actually happened to the wage, not on who suggested it. Voluntary reimbursement by the worker of a cost the employer must bear is still a violation.

Permanent labor certification: the broadest rule of the three

The permanent labor certification process, usually called PERM, has the strictest allocation. The regulation prohibits the employer from seeking or receiving payment of any kind for any activity related to obtaining the certification — which sweeps in the recruitment costs, the advertising, the filing itself, and the employer's attorney fees for that stage.

The boundary matters, because it stops at the certification. Costs at later stages of a permanent residence case are not governed by the same prohibition, which is why practice varies so widely on who pays for the immigrant petition and the adjustment application that follow. Employers often pay them anyway as a matter of policy; that is a benefits decision, not a legal requirement flowing from the certification rule.

The H-2 programs: recruiters are the pressure point

In the temporary agricultural and non-agricultural programs, the employer must bear the cost of obtaining certification and of the required recruitment, and neither the employer nor anyone in its recruitment chain may charge the worker a fee for the placement. Employers must disclose the foreign recruiters they use and contractually prohibit them from collecting fees.

That last point is where liability usually arises: a payment made to an agent in another country, months before the worker arrives, that the employer never saw. The obligations, along with the transportation and subsistence duties, are set out in 20 C.F.R. Part 655 and explained further in our guide to the H-2A and H-2B programs.

Categories where the question does not arise

Whole areas of immigration law have no employer and therefore no cost-allocation rule. A family petition, a humanitarian application, a naturalisation filing, or a self-petition is the applicant's own matter and the applicant's own cost. So is a religious organization's decision about how to fund a filing, beyond whatever its own governance requires — the underlying petitions are described in our explainer on R-1 and EB-4 religious worker routes.

Event-based categories sit somewhere in between. A performing group's petition may be filed by an agent for several employers at once, which raises a practical question about who funds the filing rather than a regulatory prohibition; our explainer on P visas for athletes and entertainment groups covers how those petitions are structured.

The employers most likely to get this wrong are the ones running several programs at once — a seasonal crew, a specialty occupation hire, and a permanent case for the same person a few years later. Where that mix exists, having immigration legal counsel map each cost line to the specific program it belongs to is a great deal cheaper than reconstructing three years of payroll after a complaint.

Note: Optional add-on services are treated differently again. Where a service exists purely for speed and is requested for the worker's own convenience rather than the employer's, agency guidance has not treated it the same way as a mandatory fee. Because the treatment is guidance-driven and has shifted, employers should confirm the current position on the USCIS petition page and the DOL foreign labor certification pages before writing it into a policy.

Common questions

Can an employer make a sponsored worker sign a repayment agreement?

It depends entirely on what is being repaid. An agreement that recovers costs the employer is legally required to bear is vulnerable, because it recaptures money the rules assign to the employer. Agreements covering costs not allocated by regulation are on firmer ground, though state wage-deduction law and contract law still apply. The safest drafting separates the two categories explicitly rather than referring to "immigration costs" as a block.

Who pays when the worker asks to change employers?

The new employer files, so the new employer bears the costs its own program assigns to it. The former employer's obligations generally end, apart from any remaining duty tied to a dismissal it initiated. Workers sometimes assume the previous sponsor owes something toward the transfer; ordinarily it does not, and that expectation should be corrected before the move rather than after.

Does an employer have to pay for the worker's family members?

No rule requires it. Dependent applications are the family's own filings, and none of the cost-allocation provisions reach them. Many employers cover them as part of a relocation package, which is a benefits choice. The distinction is worth stating clearly in an offer letter, because a candidate weighing a move often assumes dependent costs are included when nothing says so.

What happens if an employer has been shifting costs for years?

The exposure is usually back wages plus interest to affected workers, and it accumulates. Investigations often begin with a single complaint and expand to the whole population of sponsored workers. Employers that identify a problem generally do better by correcting the practice and reimbursing than by waiting, because the underlying records — payroll, deduction codes, invoices — make the pattern easy to reconstruct.

Writing a policy that survives an audit

1. List the filings by program. Not "immigration costs" — the actual petitions, applications and certifications the company files, grouped by the program that governs them.
2. Assign each line to a payer with a reason. Where the payer is the employer because a rule requires it, say which rule. Where it is a policy choice, label it as one.
3. Check the recruitment chain. For the H-2 programs, confirm in writing that no agent anywhere in the chain charges the worker, and audit it rather than assume it.
4. Keep the paper. Invoices, payment records, and the public access file for labor condition applications are what an investigator reads first; the process for building and filing them starts in the FLAG system.
5. Re-check the amounts each filing season. Fee schedules and form editions change; the current ones are on the USCIS forms pages.

Review the whole list once a year rather than when a filing lands on someone's desk. The errors that cost the most are the quiet ones — a deduction code nobody questioned, a recruiter invoice paid by the wrong party — and they are far easier to find in a scheduled review than in a complaint response.