Immigration expenses

[cpabsd]

Are immigration expenses deductible as Sch A itemized deductions? I can not find any proof of this but a friend of mine seems to think they should be. She has spent a fair amount of money apparently on immisgration related expenses.

[kcjenkins]

No, they are not. H-1B costs are typically paid by the employer as a cost of recruiting. and clearly deductible under immigration law, by the employer. Individuals can not apply for an H1B visa to allow them to work in the US. The employer must petition for entry of the employee. Immigration costs are specifically disallowed as expenses incurred by the employee (and the self-employed); amounts paid by an employer are deductible to the extent they apply to staff recruitment (visa application fees and attorney costs).

And the cost of obtaining what is necessary to work for the first time is not deductible, (except for qualified education costs) because these types of deductions are claimed as business expense or employee business expense and the taxpayer was not an employee or in a trade or business when the expenses occurred. But that is not the only problem. The real problem is with the nature of the expenses.

Personal legal expenses are not deductible. § 262. In United States v. Gilmore, 372 U.S. 39 (1963), the Supreme Court established the test to determine whether legal expenses are business or personal. The Court held that deductibility depends on the origin and the character of the claim with respect to which the legal expenses were incurred, rather than the potential consequences that might result to the taxpayer's profit-seeking activity as a result of the decision.