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

[Read Part 1 of this article.]

This is the second in our two-part InfoArticle on 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 for a variety of nonimmigrant visa categories is discussed.

General Rule for Nonimmigrant Visa Categories

The best way to determine whether one has a choice regarding the attorney in a particular case is to understand who must file the required application or petition. If the filing requires an employer as a sponsor, then the employer controls the choice of law firm or attorney. If the foreign national files the application or petition, then s/he may choose the attorney. 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. Thus, the employer has control over the decision as to the attorney providing representation.

H1B1, H2A and H2B, R, TN, E-3, and O

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; TN for Canadian and Mexican professionals; E-3 for Australians employed in a specialty occupation; 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 typically require petitioning employer permission before selecting an attorney.

E-1/E-2 Categories

The E-1 (treaty trader) and E-2 (treaty investor) categories allow nationals of countries having qualifying treaties with the United States to engage in trade or business investment activities. These nonimmigrant categories typically must be sponsored by the employer, and the employer controls selection of the attorney for these cases. However, it is fairly common for the E-1 or E-2 beneficiary to also be the owner of the sponsoring entity, and therefore in a position to select the attorney.

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.

F-1 Visa

The F-1 visa category is for foreign national students. Typically, the foreign national student is free to select the attorney of choice. One exception to this would be in the STEM OPT context, when an employer must agree to complete the employer portion of the form I-983 training plan. In that situation, the employer may have some say about what attorney to use.

B-1/B-2 Category

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 an employer may provide 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 or trade show. The visitor for pleasure (B-2) category is related purely to an individual’s personal travel, so the individual would control selection of an attorney.

J-1 Category

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 children may be 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 may choose their own attorneys, even if the primary family member may not. Many choose to use the same law firm for the family members as the primary applicant, as it generally is 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

The category for fiancées of U.S. citizens, K-1, works differently from the nonimmigrant, dependent categories. This category is family sponsored and individuals may hire their attorney of choice.

Conclusion

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, one is free to gather information and opinions from an attorney of his/her choosing.

[Read Part 1 of this article.]

Originally posted on MurthyDotCom February 17, 2012, this article has been updated for our readers, as it is still relevant.

Copyright © 2012-2023, MURTHY LAW FIRM. All Rights Reserved