Similarly, the party whose attorney drafts the H-1B petition is the party who has strongest control over the terms and conditions laid out therein. While the employer is the party who files the petition, the legal rights of both the employer and the employee are affected by its contents. Although an employer may be wise to have its attorney prepare the documentation, a prudent employee may also wish to have his or her own attorney prepare the petition, or play an equal role with the employer's attorney. The employee has a significant legal interest in the H-1B petition. If only an employer must pay the attorney fee, the employer is likely to dictate to the employee its choice of attorney.
Many employees prefer their own attorney over the employer's.
The preamble to the DOL rule suggests that an employee may pay an attorney for functions which by law are required to be performed by the nonimmigrant, such as translation fees, credential evaluation fees and other costs related to the visa application and processing. Regardless of these limited exceptions, the DOL rule would inhibit an employee to choose an attorney to prepare and draft the H-1B petition. This rule could potentially affect attorneys who usually represent employees rather employers. It would further deprive the attorney of his or her ability to freely negotiating a fee with the individual. The DOL presupposes that one attorney can represent both the employer and the employee.