Can I Select My Own Attorney? (Part 1 of 2)

[See Part 2 of this MurthyDotCom NewsBrief.]

At the Murthy Law Firm, we are often asked by potential clients whether they can hire us for their immigration matters. The answer to this question often depends upon the type of immigration case. There are cases for which individuals may freely choose their own attorneys and there are cases for which they may not choose their own attorneys without first obtaining the permission of the sponsoring employer. Given the importance of using a knowledgeable and experienced immigration attorney to help with complex immigration cases, it is crucial that one understands when s/he is permitted to choose an attorney and when s/he must obtain the employer’s permission to do so. For the benefit of MurthyDotCom readers, control of the selection of attorney in the immigrant, permanent resident (green card) context is discussed here. Part 2 of this article  explains this topic in the temporary, nonimmigrant context.

Advice and Second Opinion is an Available Option

Even if one cannot select the immigration attorney for his/her case due to the employer’s restrictions or other business policy reasons, it is always possible for anyone to obtain independent advice. At the Murthy Law Firm, we consult each day with many individuals who just need the answers to a few questions. This is often helpful as a second opinion. It can provide insight into the full range of immigration options, including employment changes, which cannot be freely discussed with the employer or the employer’s attorney. For others, it provides the information needed to engage in an informed discussion with the employer’s attorney, so that the right questions may be asked for a clear understanding of the options and risks inherent in one’s immigration processing.

Family-Based Immigrant Petitions

It is always possible to work with an immigration lawyer or law firm to file a family-based petition or application to sponsor a qualifying relative for the green card. Family-based immigrant petitions allow U.S. citizens and lawful permanent residents (LPRs) to petition for immigration benefits for certain qualifying family members. The Murthy Law Firm prepares many petitions for immediate relatives of U.S. citizens and “preference” relatives of both U.S. citizens and LPRs. For more information on family-based immigration, including which family members are considered qualifying relatives, please refer to our InfoArticle, Family-Based Immigration Simplified (24.Jun.11).

The filing of family-based petitions allows the qualifying family member to apply for his/her green card. This green card filing is sometimes permitted as a concurrent filing with the family petition, and sometimes the qualifying relative must wait for many years. The procedures for these filings, and the timelines for eligibility, are outside the scope of this article. In such family-based cases there is no sponsoring employer. Thus, when seeking an attorney to help with family-based immigrant petitions and the subsequent green card applications, as mentioned above, the family members involved are permitted to choose their own attorney.

Employment-Based Immigrant Petitions: Persons of Extraordinary Ability and National Interest Waiver

Similarly, a self-filed petition allows a foreign national to select her/his own attorney. The Murthy Law Firm has successfully provided legal representation for the preparation and filings of numerous self-petitioned cases. Immigrant petitions for persons of extraordinary ability, EA (employment-based, first preference – EB1) and the national interest waiver, NIW (employment-based, second preference – EB2) are intended for the small percentage of individuals who have risen to the very top of their respective fields of endeavor (EA) or whose work benefits the U.S. national interest (NIW).

Both EA and NIW petitions are exempt from labor certification and job offer requirements and, therefore, may be self-sponsored by a foreign national. Thus, when seeking an attorney to assist in the preparation of the EA and NIW petitions and the related green card applications, the self-petitioning foreign national selects his/her attorney. For more information on EA petitions, please refer to our NewsBrief, Can I Benefit Under the “Current” EB1 Priority Dates? (15.Sep.06). For more on NIW petitions, see to our NewsBrief, National Interest Waivers, Part 1 (13.Apr.07) and Part 2.

Employment-Based Immigrant Petitions Requiring a Sponsoring Employer

Immigrant petitions in the employment-based preference categories, EB1, EB2, and EB3, other than the self-sponsored EA and NIW cases described above, require a qualifying job offer from a sponsoring U.S. employer. In these cases, the employer must petition the government on behalf of the foreign national employee (or future employee). In most EB2 and EB3 cases the employer must obtain a PERM labor certification from the U.S. Department of Labor (DOL) and, thereafter, obtain approval of an I-140 employer petition. Thus, when seeking an attorney to assist with employment-based immigrant petitions requiring employer sponsorship, the foreign national employee must first obtain the permission of the employer. Additionally, the employer must pay the legal fees and all related costs, at the minimum, for the PERM labor portion of the green card (GC) processing.

Different companies have different policies regarding the selection of an attorney. Some employers use a specific attorney or law firm. Other employers allow employees to choose from a list of recommended lawyers or law firms. There are also employers that allow their employees a free choice of attorney, within certain budgetary restrictions. This may be one factor to consider when weighing several job offers and selecting a knowledgeable and experienced immigration lawyer.

Employment-Based I-485s

In many instances, even after approval of the I-140 employer petition, the sponsoring employer wishes to remain involved in the case. Thus, even though the final stage of the case, the I-485 adjustment-of-status application, is signed by the foreign national, it requires the ongoing support of the GC-sponsoring employer. Some employers, therefore, maintain control over the choice of attorney throughout the entire case.

Once the I-485 is pending for more than 180 days, however, the case may qualify under the American Competitiveness in the 21st Century Act (AC21) green card portability provisions. (To be safe, the I-140 should be approved prior to the use of AC21.) At this point, the sponsored employee becomes a sort of “free agent” and is allowed to change employers if certain conditions are met. In these cases, the employee can choose his/her own attorney. Extensive information regarding AC21 is available MurthyDotCom. It should be noted that, with the current pace of I-485 adjudications, many cases are being approved in fewer than 180 days and, thus, never become AC21 eligible.

Green Card Cases for Derivative Family Members

In employment-based green card cases, one’s spouse and minor child/ren are eligible to obtain permanent residence as derivative beneficiaries. For a spouse to qualify, the marriage must have existed before approval of the primary beneficiary’s green card case. Children may obtain the same benefit, as long as they are children of a marriage that existed before the green card approval.

In these cases, the derivative family members involved are permitted to select their own attorneys, even if the primary family member was not permitted to choose his/her own attorney. Each derivative makes his/her own I-485 filing, if seeking adjustment of status within the United States. Most people use the same attorney or law firm for all the family members’ I-485s and this is generally the most efficient system, when all of the applications are filed together.

EB4, EB5, and Other Categories

The EB4 category is for special immigrants. This is for a number of categories, including religious workers. Religious workers need employer permission to select an attorney, as the religious organization files the petition. EB4 also includes retired G-4 officers, who work with an international organization, as well as their family members. These cases do not require employer permission in the attorney selection process. In general, the answer to whether employer permission is needed when choosing one’s attorney in any EB4 case depends upon whether the employer is acting as the sponsor.

The EB5 category is for foreign investors who create U.S. jobs. While this is employment based, the employment is related to the business created by the investment. Thus, the investor is in control of his or her own case and is free to hire the attorney or law firm of choice. More information on this category can be found in our NewsBrief, USCIS to Improve EB5 Immigrant Investor Program (16.Dec.11).

The same analysis applies to the remaining categories, such as asylees, “U” visa crime victims, victims of international trafficking, and battered spouses and children. In these cases, there is no employer sponsorship and the individuals are free to choose any attorney.

Conclusion

U.S. immigration law is complex, with endless subtleties and nuances. Therefore, it is critical for an individual to seek the advice of a knowledgeable immigration attorney. In many cases, as described here, one is not always permitted to choose her/his own attorney. Instead, in most EB cases, sponsoring employers control the choice of the attorney. This should be considered, when possible, in making an employment decision. Even when the selection of the attorney is beyond one’s control, it is always possible to make informed choices by seeking the advice of an attorney through a consultation. We at the Murthy Law Firm are available to consult on matters about which you are concerned.

[See Part 2 of this MurthyDotCom NewsBrief.]

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.