Roles of the Employer versus the Employee in the H1B Employment Visa Process


When applying for the H1B visa, there are many steps that both an employer and employee must take in order to have a successful application. However, there may be some confusion about what the petitioning employer and beneficiary employee of the visa is responsible for. This article outlines the critical differences in preparation and action for both the beneficiary employee and the petitioning employer in the H1B visa process.

Responsibilities of the Petitioning Employer

Prior to filing the H-1B application, the U.S. employer must file a Labor Certification Application (LCA) on behalf of the worker or workers applying for the H1-B visa. The application is submitted and approved by the United States Department of Labor Employment’s Office of Foreign Labor Certification (OFLC), and the application is form ETA-9035. To file, U.S. employers must use the electronic system except in two limited circumstances: employers with physical disabilities or lack of internet access prohibiting them from filing electronic applications. Applicants in these two limited circumstances may submit a written request for special permission to file their LCAs by U.S. mail.

Once the employer files the LCA, the next step is to give a job offer to the foreign employee and file a Form I-129. Next, the form must be signed in black ink, compiled into a file, and include fee checks and the required supporting documents. Furthermore, if the employer decides to hire an attorney for the process, the employer is the one who is required to pay the attorney’s fees. The only exception is if the employee beneficiary chooses to hire an additional attorney for themselves. Only then will the employee-beneficiary be required to pay for their own attorney’s fees once a second attorney is hired. The employer is also not permitted to retract what they paid in attorney’s fees from the salary of the beneficiary-employee.

The petitioning U.S. employer must also allow for a public examination of a copy of the H-1B worker’s LCA, and other necessary supporting documentation regarding the H-1B worker and other similarly situated employees. The employer must create and maintain a public access file to document compliance in each H1-B case.

Responsibilities of the H1B Employee

Although the employer of the H-1B applicant will be the one submitting the application on their behalf, there are still a few things that the applicant is responsible for. This includes completing Form DS-160, one of the essential parts of the application. The employee is also responsible for scheduling an interview with the U.S. consulate in their Home Country, which should be made for as soon as possible. Finally, the Employee must then attend the H-1B visa interview with their required documents.

At The Law Office of Yifei He, PLLC, our lawyer has years of experience helping clients overcome a wide range of legal barriers. We can help you present the strongest possible case to USCIS, thereby maximizing your likelihood of success. With our attorney by your side, you can navigate this process with efficiency and confidence.

Request your initial consultation by calling 1 (917) 338-7678 or sending us an online message today.