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Employer: U.S. Employer is in the Driver Seat
Foreign nationals or entities cannot file H-1B petitions. Only U.S. employers have that
right. Here is what the U.S. employer does in the H-1B process:
Makes the decision to hire a foreign worker, and makes all H-1B-related decisions;
Retains a business immigration provides the attorney with information on the H-1B Checklist to enable to attorney assess whether the H-1B is feasible;
Works with the attorney to identify the true minimum requirements of the position offered to the foreign national;
If the employer is H-1B dependent, conducts recruitment;
If required, arranges for an academic or experience equivalency evaluations;
If applicable, reviews, and when correct, approves the Prevailing Wage
Application for filing with DOL, and/or purchases or conducts a wage survey;
Reviews, and when correct, approves the Labor Condition Application for filing with DOL;
Prepares an LCA Public Access File;
Reviews, and when correct, signs the H-1B petition for filing with USCIS;
Pays filing and legal fees;
If applicable, provides evidence and reviews Reply to Request for Evidence or
Notice of Intent to Deny for filing with USCIS;
keeps records;
If applicable, reviews and signs Request to Revoke for filing with USCIS and engages in other DOL-mandated termination activities;
Engages in other H-1B related activities, such as developing internal policies on how to attract and retain international personnel, and LCA Public Access File Audits.
Employer’s Immigration Attorney:
U.S. law does not allow foreign nationals to file H-1B petitions. Only a U.S. employer
may be an H-1B petitioner. The attorney filing the U.S. employer’s petition does not
represent the foreign national in the H-1B petition. The H-1B attorney represents the
employer and acts in the best interest of the employer. In drafting the petition, the
attorney’s goal is to prepare an approvable petition while helping the employer navigate
requirements and obligations imposed on employers by H-1B regulations. U.S. employer
filing an H-1B petition regarding a foreign worker makes all the decisions, signs the
petition, and gives all petition-related instructions to the attorney, such as to file, reply
to requests for evidence, or to withdraw the petition. This is what the employer’s
attorney does in the H-1B process:
Explains the H-1B process, provides answers to the employer’s questions;
May provide training to the employer and intended H-1B beneficiary regarding what to expect in the H-1B process;
Reviews and analyzes documents and information, researches applicable law and practice;
Advises the employer regarding feasibility of the H-1B petition filing;
Works with the employer to identify the true minimum requirements of the position offered to the foreign national;
If applicable, drafts the Prevailing Wage application for the employer’s review and files it with DOL, or addresses the issue of prevailing wage through other lawful means, such as wage surveys;
drafts the Labor Condition Application for the employer’s review, files it with DOL;
prepares Labor Condition Application Public File instructions for the employer;
Drafts the employer’s H-1B petition and prepares the petition with supporting documents for the employer’s review, files it with USCIS;
If USCIS issues a Request for Evidence or Notice of Intent to Deny, reviews, analyzes facts and law, determines the best approach to address the agency’s challenge, and advises the employer on how best handle the reply;
Prepares replies to Requests for Evidence or Notices of Intent to Deny for the employer’s review, files them with USCIS;
If necessary, advises the employer on I-9 related issues regarding the intended H-1B worker;
May perform internal LCA Public Access File audits;
Should the worker travel outside the U.S., prepares the employer’s H-1B consular package for consular processing of the worker’s H-1B visa application at the U.S. consulate;
Handles investigations or audits by DOL or USCIS on behalf of the Employer;
Helps the employer with developing a work visa strategy and polices to enable hiring and retention of necessary international personnel; and
Engages in other H-1B related activities on behalf of the employer.
Foreign Worker’s Role in the H-1B Process:
In the H-1B and other employer-sponsored processes, our client is the employer. We
always make it clear to the foreign worker that in the H-1B process we as lawyers
represent the employer and we act for the benefit of the worker only to the extent
instructed by the employer. For example, if the employer instructs the attorney to file
an H-1B petition regarding a certain worker, interests of the employer and worker are
aligned. However, if the employer decides to terminate the worker, the employer’s
attorney will act to file an H-1B revocation request with USCIS, which is adverse to the
worker’s interests, as it terminates the worker’s H-1B status.
We explain this in the Conflict Waiver signed by both the employer and the foreign
worker before we begin working on an H-1B process. So, how can a foreign worker
receive the best advice if he or she has immigration questions? Once we are retained by
a U.S. employer to work on an H-1B case, we are always happy to answer questions from
the foreign worker regarding the H-1B process. However, if the worker asks about how
to transfer his/her H-1B to a different employer, we are unable to assist and may have to
report this to our client, the employer. If the foreign worker is interested in advice that
puts his or her interests in conflict with the H-1B employer’s, he or she should consult an
attorney who does not represent his or her H-1B employer. This is what the foreign
worker does in the H-1B process:
Achieves education and/or expertise that makes the foreign national such a desirable addition to the U.S. employer’s workforce;
Provides documents and information regarding education, work experience, immigration status, previous visits to the U.S, and family, if any, to the employer’s attorney; and
Should the foreign worker travel outside the U.S. after the H-1B petition is approved, applies for a H-1B visa at a U.S. consulate.
Danielle Atchison
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.