I guess that I would look at this a bit differently.  We are not penalizing a person for the cost of obtaining a visa; rather, it is the fact that he did not come through on his accepted offer and start to work for us that is the issue.  Does that matter?

 -----Original Message-----
From: 	Goode, Diane  
Sent:	Thursday, July 12, 2001 2:40 PM
To:	Cash, Michelle
Cc:	Daffin, Margaret
Subject:	Recovery of H-1B Visa Fees

Margaret Daffin and I had a conference call with Alice Gruber regarding recovery of our expenses related to obtaining H-1B visas for new employees.  Margaret estimates there have been three/possibly four instances where an individual has walked away from a position after we had committed time and money to process the visa application.  According to Alice, the DOL regulations changed last year. 

The regulations do not allow an employer to penalize a foreign national for the employer's cost of obtaining the visa.  The regs do allow the employer to recover "bonafide liquidated damages" in the amounts "stipulated by the parties at the beginning of the contract."  The "liquidated damages" may vary from state to state.  Since our offer letter does not put these candidates on notice of our intent to recover such costs, there has been no stipulation by the parties.  If we put them on notice, then the most we could attempt to recover would be our attorneys fees, not the filing fees.  

However, Alice does not recommend that we attempt to recover our costs.  She thinks the legal fees for trying to recover these monies would outweigh the H-1B costs ($3,000.00 on average).

Also, Alice expressed concern that if we add some type of "notice" language to the offer letter, that we will force some candidates to accept jobs with other companies that don't threaten to recover these costs.  She believes this could have a "chilling" effect and cause us to lose quality candidates.  

I asked if we could put some kind of notice in the packet that Margaret Daffin sends out to the Candidates explaining what information she needs to process their visa applications.  We can do that, but that may drive some candidates away.

Alice thinks the unstable economy will reduce the number of candidates who walk away after the visa has been processed.  s. Apparently this was a fairly common practice in the last couple of years when the economy was stronger and the candidates were more cavalier about turning down positions.   

Let me know what you think.  Alice would like to be very involved if we decide to try to collect these monies.