FW: H1-B agreement

From: Amaechi L. Okonko <amaechi_at_mediadefender.com>
Date: Fri, 30 Mar 2007 11:20:34 -0700

O,

Before you leave, Jay would like to talk to you regarding the H-1
Agreement. He is leaving for the day in an hour.

A

-----Original Message-----
From: Amaechi L. Okonko
Sent: Friday, March 30, 2007 9:21 AM
To: Ben Ebert
Subject: FW: H1-B agreement

-----Original Message-----
From: Karen Feder [mailto:Karen.Feder_at_ARTISTdirect.com]
Sent: Friday, March 30, 2007 8:22 AM
To: Amaechi L. Okonko
Subject: FW: H1-B agreement

-----Original Message-----
From: Victor Fu [mailto:vfu_at_richardsonpatel.com]
Sent: Thu 3/29/2007 4:53 PM
To: Karen Feder
Cc:
Subject: RE: H1-B agreement

I do not think you should take the position that the attorneys' fees and
any government fees are definitively recoverable unless and until an
assessment is made concerning the requisite wage. The following are
some relevant excerpts from one of the treatises I have reviewed.
 
The Department of Labor (DOL) takes the position that it is the
employer's responsibility to pay for the preparation and filing of an
H-1B visa petition - it considers this to be a business expense of the
employee; indeed the DOL's regulations state: "Where the employer
depresses the employee's wages below the required wage by imposing on
the employee any of the employer's business expenses, [including
attorney's fees for preparation and filing of the H-1B visa petition],
the Department will consider the amount to be an unauthorized deduction
from wages, even if the matter is not shown in the employer's payroll
records as a deduction."
 
The effect of this regulation is to make it a violation of the required
wage provisions if the H1B employee pays "attorney fees and other costs
connected to the performance of H1B program functions which are required
to be performed by the employer (e.g., preparation and filing of LCA and
H1B petition)" such that, when deducted from the employee's wage, the
wage would be below the higher of the actual or the prevailing wage. (If
such payments would not reduce the employee's wage beneath the required
wage, such payments are permissible.) The regulation at Section
655.731(c)(9)(iii)(C) terms the deduction of such fees and costs from
the employee's wages as a "recoupment of the employer's business
expense," and then at Section 655.731(c)(12) deems the act of "imposing
on the employee" such an expense to be an unauthorized deduction from
wages.
 
The employer must not: require reimbursement of the $1,000.00 fee from
the H-1B employee; by contract require the H-1B employee to pay a
penalty for leaving the employer's employ prior to a particular date; or
"bench" a full-time or part-time H-1B due to lack of work.

________________________________

From: Karen Feder [mailto:Karen.Feder_at_ARTISTdirect.com]
Sent: Thursday, March 29, 2007 5:39 PM
To: Victor Fu
Subject: FW: H1-B agreement

Please review note below and see attached and provide comment.
 
Thank you.
 
 -----Original Message-----
From: Ben Ebert [mailto:ben_at_mediadefender.com]
Sent: Thursday, March 29, 2007 4:32 PM
To: Karen Feder
Subject: H1-B agreement

Here is the Agreement I wrote for the h1-B Visa applicants. Renee
believes the first part needs to be structured as a loan and doesn't
think we can do the second part. The second part was suggested to me by
Steve Dewar of Wolfsdorf Immigration Law Group in a phone conversation
Wed afternoon. Their number is (310)570-4088. I have informed the
candidates that we would request a payment reimbursal if they choose not
to work for us after we pay the fees, however I will not finalize this
document with them until you have looked it over and advised.

 

Thank you,

Ben Ebert
Received on Fri Sep 14 2007 - 10:55:51 BST

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