Issues dealing with company lawyers

Many employment based applicants find themselves in a very difficult position as a result of being represented by an attorney hired and paid by their employer. In theory, the employer is the attorney’s client and the employee is what is known as a “third party beneficiary” of the attorney’s services. In such cases, the attorney’s duty to the employee is minimal at best.

Particular problems arise when an employee has questions or concerns, but cannot communicate with the employer’s attorney because the employer will be billed for all calls or e-mail messages.

In reality, the situation is somewhat different. In many cases, the attorney files a notice of appearance as attorney of record (form G-28) with the government, stating that he or she represent the employee. In all such cases the employee must also sign the form G-28. If a G-28 that names the employee is filed by the attorney, then the attorney owes a clear duty to the employee as the employee’s attorney, irrespective of who is paying the attorney’s fees.

Certain filings, such as PERM applications and I-140 petitions “belong” to the employer. That is, the employee has no standing to file or modify these types of matters. The employee cannot even request a duplicate approval notice. On the other hand, adjustment of status applications “belong” to the employee and the employer has no standing to dictate when they may be filed or even to withdraw them.

Some law firms make a point of not having the employee sign a G-28 form for the I-140 petition so that they may assert that they do not represent the employee. This changes, however, when they file an adjustment of status application. An employment based form I-485 may only be filed by a foreign national employee. At this point, the attorney owes a fiduciary duty to the employee to represent the employee zealously.

In practice, we see instances where the employee may not contact the attorney without the employer’s permission. This raises serious ethical issues for the attorney. Irrespective of who is paying the attorney’s fees, the attorney owes a clear duty to the adjustment of status applicant for whom he or she has filed a formal notice of appearance as attorney of record. If harm to the employee results from the employee’s inability to communicate with the attorney, it will be the attorney who is held liable, not the employer.

In many instances, an employee will leave the sponsoring employer under the portability provisions of the AC21 legislation. In such cases, the attorney may not take any action to harm the employee’s interests. For example, there is no legal or practical reason for withdrawing an approved I-140 petition after the employee’s adjustment of status application has been on file for more than 180 days. Nonetheless, many attorneys either recommend that employers take this action or they follow through on an employer’s instructions that they withdraw the I-140 petition. This is clearly a conflict of interest for an attorney that has filed a G-28 naming the employee as his or her client.

Even when the employer does not try to withdraw an approved I-140 in this type of situation, the attorney often will take little or no action on behalf of the former employee of his corporate client. Depending upon the arrangement between the former employer and the attorney, this could constitute client abandonment.

An intending immigrant may change attorneys at any time, for any reason or no reason. Applicants who find themselves in this kind of situation need to know that once their adjustment of status application has been on file for at least 180 days, they become free agents. They may remain with the sponsoring employer, or move on to another. Irrespective of the decision they make, they are entitled to legal representation of their own choice and their employers may not force them to use the employer’s attorney.