Ethical Considerations in Immigration Law
Posted Jun 30, 2000; updated Sep 20, 2007
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Some immigration law practitioners do not focus on the ethical considerations lurking in our everyday practice. Yet ethical considerations are important to understand, not merely for lawyers, but also for Human Resource managers and companies, as well as their foreign national employees. 
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H1B Cases
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When filing an H1B petition, the immigration law attorney represents both the employer and the prospective H1B employee, regardless of which party is paying the fees. Although both parties might have the same goal with respect to obtaining the H1B approval, there is always a potential conflict of interest between the parties. Most good immigration law firms will require some sort of a waiver related to dual representation of both parties by the same law firm. The dual representation agreement addresses the fact that under law, the attorney is obliged to act in the best interest of both parties. 
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Conflicts of interest generally arise in the following situations:
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• The H1B employer wants to terminate the employment prior to the timeframe mentioned on Form I-129 and related H1B documents.
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• The H1B employee desires to leave the employment, without providing the required notice to the H1B employer.
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• The employer terminates the employment but does not want to pay the return transportation costs because the H1B employee has found other employment.
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• The H1B employer does not pay the salary and benefits as mentioned on the H1B petition and supporting documents. 
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The above are just some examples of scenarios where the parties could have a conflict of interest and the attorney representing both sides must resolve legal and ethical dilemmas. When a conflict of interest between the two parties arises, most state laws and ethical rules require the attorney to withdraw from representing both parties, unless one party agrees to the attorney’s representation of the other party. The safest approach is to discontinue representation of both sides, and have each side then hire independent counsel to resolve the differences. 
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Labor Certification
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Common conflicts of interest and ethical dilemmas are presented in the labor certification application in the following:
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An employee believes that s/he should file under the EB2 classification because s/he has a Master's degree or a Bachelor's plus five years of experience. But the employer believes that the job duties only require a Bachelor's plus two years of work experience. Because the labor certification forms are signed under penalty of perjury by the employer, the employer cannot and should not change its actual minimum requirements merely to help their foreign national employees to fit into a higher employment based classification to obtain the green card faster. 
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In addition, there may be similar issues to the H1B context above, such as when the employer does not pay the wage, or terminates the offer of permanent, full-time employment.
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National Interest Waiver/EB1 Category
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Often, in the NIW and EB1 categories, we find that the conflict generally arises with respect to the following:
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The employer wants to file an Outstanding Professor / Researcher petition for the employee, but the employee prefers to have an Extraordinary Ability (EA) or an NIW petition, and do not require a sponsoring employer. 
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In the above situation, the individual may want to file in both categories. The safest approach is to obtain prior permission from the employer and divulge the information to all parties. Again, both sides must consent to the representation of the individual in both cases.
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Family-Based Immigration
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Conflicts can arise in marriage-based cases (citizen or permanent resident petitioning for spouse) when it turns out that one spouse is committed to the relationship and the other spouse is not. Personal conflicts can also arise in other types of relative cases: petitions by U.S. citizens for parents, children (including adult or married children) or siblings, and petitions by permanent residents for their children (of any age). A waiver form for dual representation is a good idea in these cases as well.
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Conclusion
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At the Murthy Law Firm, we address and resolve such ethical dilemmas on a daily basis. Some foreign nationals are not aware that ethical issues play such a significant role in the U.S. standards of professional responsibility. In the United States, an attorney could be sued, be barred from the practice of law, or otherwise suspended from practice for failure to follow the applicable ethical rules.
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Although there may be no solutions to some of these complex issues, the safest approach for the immigration attorney is to explain the inherent conflicts of interest and obtain permission from all sides in advance of the representation, so that if there is a conflict, the issues have already been addressed.