Can I Select My Own Attorney? (Part 2 of 2)15 Jan 2014
This is the second in our two-part article on the subject of the selection of one’s own attorney for immigration matters. Part 1 of this article addressed this topic in the immigrant (green card) context. Here, the selection of an attorney in the temporary, nonimmigrant context is covered for MurthyDotCom readers.
General Rule for Nonimmigrant Petitions
The best way to determine whether one has a choice regarding the attorney in a particular case is to understand who must sign and file the required application or petition. If the category requires an employer as a sponsor, then the employer controls the choice of law firm or attorney. If the foreign national signs the application or petition, then s/he may choose the attorney to help analyze and file the case. Regardless of sponsorship, it is always possible to obtain a second opinion and/or advice from any attorney one chooses.
Employment-Based Petitions Requiring Sponsoring Employer
H1B, L1A, and L1B
There are a number of nonimmigrant classifications that permit foreign nationals to work temporarily in the United States, based on a job offer from a sponsoring employer. Two common categories are the H1B for workers in specialty occupations and the L1A and L1B for intra-company transferees. In H1B and L-1 cases, the employer must file a petition with the government. (In H1B cases this petition is filed on behalf of the foreign national. In L-1 cases, qualifying companies sometimes file a company “blanket” petition.) Thus, the employer has control over the decision as to the attorney providing representation.
H1B1, H2A and H2B, R, and O Petitions
There are many other employment-based, nonimmigrant categories that also require employer sponsorship. These include: the H1B1 category for citizens of Chile and Singapore; H2A and H2B for agricultural and non-agricultural workers; P for athletes, artists and entertainers, and the R category for religious workers. In addition, O petitions, for foreign nationals having extraordinary ability in the sciences, arts, education, business, or athletics, must be filed by the employer or, in some cases, by a U.S. agent. All of these cases similarly require employer permission before selecting an attorney.
The E-1 and E-2 categories allow nationals of countries having commercial treaties with the United States to engage in trade or business investment activities. While these are considered employment-based filings, for the E-2, the employment is often the foreign national’s own business investment. Thus, the E-2 treaty investor is in control of her/his own case and may select any law firm or attorney.
Qualifying employees of a trader or investor company having the same nationality can be classified in the E category. In these cases, the qualifying employee would need the company’s permission regarding the use of a personal attorney.
TNs Under NAFTA
The TN allows citizens of Canada and Mexico, in NAFTA-specified professions, to work in the United States. The foreign nationals involved in these cases can apply for admission at a U.S. port of entry (in the case of Canadian citizens) or can seek a visa at a U.S. embassy or consulate in Mexico (in the case of Mexican citizens). The employer, therefore, is not required to file a petition with the U.S. Citizenship and Immigration Services (USCIS). The employer must provide the applicant with a letter of support to submit at the port of entry or consulate. In addition, if the foreign national is in the United States and seeks an extension of TN status or a change to TN status, the employer must file a petition with the USCIS on behalf of the employee. If the employer is required to file the forms and submit paperwork to the USCIS, this results in the employer controlling the selection of the attorney, as well.
Australians Under the E-3 Category
Similarly, an Australian national can obtain an E-3 visa to work in a specialty occupation by applying at a U.S. consulate, without the employer filing a petition with the USCIS. However, the employer must obtain an approved U.S. Department of Labor (DOL) labor condition application (LCA) as well as provide a letter of support for the E-3 visa application. If the Australian national wishes to change to or extend E-3 status within the United States, the employer may file a petition with the USCIS as an alternative to the visa application at the consulate abroad. As such, employer permission is required for selecting an attorney in E-3 cases.
Other Nonimmigrant Categories
In general, the answer as to whether employer permission is needed in any employment-based, nonimmigrant visa category depends upon whether the employer acts as the sponsor. This analysis applies to the remaining employment-based categories, such as the I category for foreign press representatives and H-3 for trainees.
Foreign National May Choose: B, F, and Sometimes J Visa
There are widely-used nonimmigrant classifications that do not require employer sponsorship. Common examples include the B category for foreign nationals entering the U.S. for pleasure (B-2); and the F-1 or M-1 category for individuals seeking to enter the United States as full-time students.
The B-1/B-2 visitor category is primarily based upon an individual’s own application and qualifications. Thus, the individual generally controls the choice of any attorney in this category. The visitor for business category (B-1) might involve employer control, since the employer generally provides the supporting documentation for the individual’s visa application. However, this category is appropriate for a wide range of activities, including some connected to an individual’s own business interests, like attending a conference to increase one’s level of knowledge or to interview for jobs in the United States. The visitor for pleasure (B-2) category is purely related to an individual’s personal travel, thus, the individual would control the selection of an attorney.
The J-1 category is quite broad. It includes students pursuing graduate and post-graduate studies, visiting scholars, medical doctors undergoing training, researchers, teachers, au pairs, summer work and/or travel programs, and trainees. All J-1s must have approved program sponsors, but not all such programs are employment. Therefore, no general rule applies to all J-1s. Many are free to hire their own attorneys for all aspects of their cases. Others may not have this freedom, due to the need for employer sponsorship.
Nonimmigrant Derivative Family Members
In nonimmigrant cases, one’s spouse and minor child/ren are eligible to obtain nonimmigrant visas or status as derivative beneficiaries. Common nonimmigrant categories for derivative family members include H-4, L-2, and F-2. In all derivative cases, the family members involved are permitted to choose their own attorneys, even if the primary family member is not permitted this choice. Many choose to use the same law firm for the family members as the primary applicant, as it is generally most efficient when all applications are filed together. This is not always the case, and there are sometimes reasons to opt out of the services of the employer’s attorney.
K-1 Fiancée of U.S. Citizen
There is a category for fiancées of U.S. citizens, K-1, which works differently from the nonimmigrant, dependent categories. This category is family sponsored and, thus, the individuals may hire their attorney of choice.
Given the importance of retaining a qualified immigration attorney, it is crucial that individuals know when they are permitted to choose their own attorneys and when they must first obtain the sponsoring employer’s permission. In any case, however, one is free to gather information and opinions from an attorney of his/her choosing. At the Murthy Law Firm, our lawyers regularly consult with individuals who must use attorneys selected by the employers sponsoring their cases. We can help such individuals understand the options available and the restrictions that apply in their cases, so that valuable information and knowledge may be gathered, while remaining as involved as possible in their own immigration processes.
Originally posted on MurthyDotCom February 17, 2012, this article has been updated for our readers, as it is still relevant.
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