Tag Archive for: dual representation

Cyrus Mehta

Answering Tricky Questions on the Revised Labor Certification Form on Dual Representation and Familial Relationships

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By Cyrus D. Mehta

The Department of Labor’s Office of Labor Certification (OFLC) has revised the Application for Permanent Employment Certification, ETA Form 9089, as well as the corresponding Application for Prevailing Wage Determination, Form ETA 9141. OFLC will begin accepting these revised forms on May 16, 2023, and has posted an “unofficial watermarked preview copy” of the form “to allow stakeholders to become familiar with changes to the form.” The link to the form can be found at https://www.dol.gov/agencies/eta/foreign-labor

OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail.

This will be the first in a series of blog discussing selected issues in the new ETA-9089 that are confounding practitioners.

1. How to answer the dual representation question?

 The question below asks whether the employer has contracted with an attorney that also represents the foreign worker covered by the application, as follows:

D.2. Has the employer contracted with an agent or attorney that also represents the foreign worker covered by this application?

Yes

No

It is difficult to understand why the DOL has included this question. Many practitioners take the position that they are representing both the employer and the foreign worker, which is commonly referred to as dual representation. Representing two or more clients is appropriate if the goals of both the clients are aligned. If the practitioner is engaging in dual representation then “Yes” should be checked off rather than “No”. It should not prejudice the case if “Yes” over “No” is checked.

Question D.2 also refers to an agent. It would have been good if the DOL did not include an “agent” as only attorneys admitted to a state bar in the US can engage in the practice of law. Agents should not be encouraged to represent the employer or foreign worker as they will then be involved in the practice of law and are also not bound by the ethical rules that attorneys are subjected to. The ABA Model Rules of Professional Conduct include Rule 1.7 that set forth the parameters under which an attorney can jointly represent more than one client, such as the employer and the employee, and the attorney is precluded from such dual representation if there is an irreconcilable conflict of interest. Non lawyer agents are not subject to any rules of ethical conduct.

This question piqued my interest as I once co authored an article “The Role of the Lawyer in the Labor Certification Process”, a version is available at https://www.ilw.com/articles/2009,0310-endelman.shtm,  which explored dual representation in the labor certification context. There are many decisions of the Board of Alien Labor Certification Appeals discussed in the article that recognize that the lawyer for the employer is also the employer for the foreign worker.

The starting point for this analysis is the DOL rule at 20 CFR 656.10(b), which provides:

(i) It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. As the beneficiary of a labor certification application, the alien can not represent the best interests of U.S. workers in the job opportunity. The alien’s agent and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien’s agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer’s representative, as described in paragraph (b)(2)(ii) of this section.

(ii) The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

 

This rule precludes attorneys from interfering in the recruitment process by interviewing or considering US workers who apply for the job offered to the foreign worker. Only the employer is allowed to interview and consider the resumes of US worker candidates. Even the foreign worker cannot be involved in the recruitment process. Although most of the verbiage in the rule prohibits the attorney of the foreign worker form interfering in the recruitment process, the rule was amended in the fall of 2008 to also include “It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien.” (emphasis added). Thus, even the attorney for the employer is prohibited from interfering in the recruitment process since 2008 after the DOL slipped in the phrase “for the employer” in 20 CFR 656.10(b)(i).

Regardless of this amendment to the rule, there are a number of BALCA decisions even before 2008 that have acknowledged dual representation, and thus recognizing that the attorney for the employer is also considered the attorney for the beneficiary. In Sharon Lim Lau, 90-INA-103 (BALCA 1992),  the attorney for the employer sent letters to the only two applicants who responded to the advertisements inviting them to interviews and also presided over the initial interviews to screen the applicants.   The foreign beneficiary, who was the subject of this labor certification application, lived in Taiwan, and the attorney argued that he was the foreign worker’s agent only for purposes of providing a mailing address and to facilitate the foreign worker’s responses to requests by the government for information or documents.  BALCA disagreed by holding that it was common in labor certification cases for the same attorney to be listed as the attorney for both the employer and the foreign worker on the labor certification form.

Contrast Sharon Lim Lau with the earlier BALCA decision in Matter of Marcelino Rojas, 87-INA-685 (BALCA 1988).  In Rojas, the employer contended that his attorney interviewed U.S. applicants because he had difficulty communicating effectively in the English language.  Here too, the certifying officer alleged that 20 CFR §656.20(b)(3)(i) had been violated because the attorney had interviewed a U.S. applicant for the position. BALCA initially noted:

In labor certification cases, the employer’s attorney is almost automatically the  alien’s pro forma attorney.  The employer’s attorney “represents” the alien to the  extent that if the employer succeeds in its application then the alien also succeeds   by receiving labor certification.  It would be the rare exception to find the alien  and the employer represented by different attorneys.

 

But BALCA, in Rojas, held that the attorney represented the employer rather than the foreign worker in the conduct of the interviews.  The employer was present at the location of the interviews to observe the applicants and to decide, after conferring with his attorney, whether to conduct follow-up interviews.  Therefore, the attorney only represented the employer and 20 CFR §656.20(b)(3) was inapplicable to this case.  Rojas, can thus best be described as an exception to the generally accepted rule that the attorney for the employer will also be treated as the attorney for the foreign worker. Of course, Rojas was decided before the amendment to the rule in 2008.

In a later decision, Chicken George, 2003 BALCA LEXIS 72,   the attorney for the employer and the foreign worker was the one who issued letter for the interview to one of the U.S. applicants who applied for the job.  The letter was written on the letterhead of the law firm. Since the employer’s attorney assented that he was the attorney for both the employer and the alien, BALCA held that 20 CFR §656.20(b)(3)(i) and (ii) had been violated.

Finally, in Matter of Scan, 97-INA-247 (BALCA 1998),  the labor certification was denied because it appeared that the applicant was to have been screened by the attorney rather than by the employer.  There, the Certifying Officer concluded:

The initial assessment of the applicant’s qualifications constitutes attorney  involvement and is prohibited by the Regulations.  It is clearly adverse to the  interests of U.S. workers for the alien’s attorney to have any involvement in the  recruitment process.  The rebuttal provides no satisfactory assurance that the  attorney did not initially assess the applicants’ qualifications in this case despite the fact that the employer actually interviewed the workers and made the ‘hiring  decision.’  We cannot say that U.S. workers were not prejudiced by the attorney’s          actions in this case.

 

Although it is unclear from the fact that the attorney claimed to only be the employer’s attorney, BALCA appeared to have broadly held that the attorney violated 20 CFR §656.20(b)(3)(i) because he had engaged in the “filtering process” which is part of the personnel procedures that the employer follows when the employer hires staff personnel.

Thus, under the predecessor provision, 20 CFR §656.20(b)(3),  with the sole exception of Rojas, BALCA has held that an attorney interfering in the recruitment process, either by interviewing or initially screening applicants, violated the regulation.  Of course, the regulation does carve out an exception where if the attorney is the person who normally interviews job applicants outside the labor certification process, this provision will not be implicated.

I have provided this history to demonstrate that the DOL has recognized dual representation in the labor certification process. If the employer is engaging in dual representation, then there will be no downside in answering the question as “Yes” to Question D.2 in the revised ETA 9089.

 

2. How to Answer the Question on Familial Relationships?

The revised ETA 9089 asks the following two questions:

A.16. Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

Yes

No

A.17. Is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators?

Yes

No

In the current ETA 9089, Question C.9 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?

The question needed to be answered “Yes” only if the employer was a closely held corporation, partnership or sole proprietorship and the foreign worker either had an ownership interest or there is a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the foreign worker. The language in C.9 was consistent with the language in 20 CFR 656.17(l), which provides:

If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, and must provide to the Certifying Officer, the following supporting documentation…….

The new ETA 9089 now separates out this question into two questions removing any ambiguity regarding whether the corporation has to be closely held for both parts in the same C9 question of the current form.

Question A.16 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

 

Question A.17 asks:

Is there a familial relationship between the foreign worker and the owners, stockholders, corporate officers, incorporators, or partners?

The DOL has taken the position that if the foreign worker either has an ownership interest or there is a close family relationship the recruitment that the employer is required to conduct to test the US labor market will be suspect. If the foreign national has an ownership interest or familial relationship BALCA has set forth a “totality of circumstances” test under Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc) to determine whether there is a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

 

In the current version of the form the question had to only needed to be responded to in the affirmative if the employer is a closely held corporation. The new question A.16 regarding whether the foreign worker has an ownership interest need only be answered “Yes” if the employer is a closely held corporation. This makes sense since even if the foreign worker held shares in a large publicly traded corporation it would be hard to imagine how the recruitment would be tainted.

Question A.17, however, is no longer conditioned by whether there is a closely held corporation, and this is clearly not consistent with 20 CFR 656.17(l). So, let’s say the foreign worker is a second cousin or grandnephew to a corporate officer in Walmart which has over a million employees, the answer now has to be “Yes”. For a publicly traded company, how is one supposed to know whether there is “a familial relationship between the foreign worker and the . . . stockholders”?

In DOL’s FAQ, a  “familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term ‘marriage’ will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.”

If the employer is not a closely held corporation and there is a familial relationship, one view is to assume that the intention of the DOL was to only expect an answer to the question in the affirmative if the employer is a closely held corporation. On the other hand, if the intention of the DOL was to ask the question without regard to whether the employer is a closely held corporation,  the practitioner must require the foreign worker to ascertain whether  there is any familial relationship foreign worker and the owners, stockholders, corporate officers, incorporators, or partners. This would be the more prudent approach until we get further clarification from the OFLC. The foreign worker can endeavor in good faith to find out whether any relative as defined in the DOL FAQ owns stock in the company that is filing the labor certification. If so, A.17 must be marked as Yes. In the supplemental information, Appendix C, it can be explained that notwithstanding the familial relationship the foreign worker under the totality of circumstances test in Matter of Modular Containers had no influence on the recruitment process especially in the context of a large publicly held corporation.

There will be many instances when the foreign worker may not be able to identify every relative who owns stock in the company that is filing the ETA 9089 on their behalf. Even if the question A.17 is marked as “No” and it later comes to light that the question should have been “Yes” and the DOL denies the application, such a finding can be challenged as BALCA does not take too kindly to the DOL denying applications when the instructions are not clear. For instance, when the employer requires alternative experience and the foreign worker qualifies through that alternative experience, 20 CFR 656.17(h)(4), which adopted the holding in Matter of Kellogg, 1994-INA-465 (Feb. 8, 1998),   provides that certification will be denied unless the application states that “any suitable combination of education, training, or experience is acceptable.” In Federal Ins. Co., 2008-PER-37 (Feb. 20, 2009), BALCA reversed the denial on grounds of fundamental fairness and procedural due process  where this language was not included as the ETA 9089 or its instructions gave no guidance where to put this language.

The new ETA 9089 now specifically instructs applicants about where and how to insert the Kellogg language, and how to respond to the question on the new form will probably be the subject of the next blog in this series.

 

 

 

 

 

Cyrus Mehta

Considerations When Terminating a Foreign Worker

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By Cyrus D. Mehta

Terminating an employee is always a very difficult decision, and requires the employer to comply with various state and federal laws. Terminating a noncitizen employee requires additional considerations under US immigration law. The American Immigration Lawyers Association has issued a  flyer  to its members that provides a useful guide to employers. In this blog, I will reiterate the guidance and also  provide further commentary and insights that would benefit the employer and the employee.

 

Terminating  H-1B, H-1B1 and E-3 Employees

The terminating of H-1B, H-1B1 and E-3 employees is the most burdensome because of the additional DOL rules that govern the underlying Labor Condition Application and which  intersect with the USCIS rules. If the termination is not effectuated properly with the USCIS, an employer will be liable for back wages until there is a bona fide termination.

The termination of H-1B, H-1B1 and E-3 employees requires:

•written notice to the employee,

•written notice to USCIS (if the petition was filed with USCIS), and

•withdrawal of the labor condition application (when possible).

AILA also correctly notes that the  cost of reasonable transportation to the employee’s country of last residence must be offered to H-1B and E-3 workers if the employer terminates the employee. The employer is not required to pay transportation for dependents. This offer is not required if the employee resigns or chooses not to leave the United States. We direct readers to our prior blog for more detailed analysis on when the employer may choose not to pay the return transportation expenses especially where the worker has chosen to stay in the US through other options such as  filing an extension of H-1B status through another employer or through filing an application of adjustment of status to permanent residence after marriage to a US citizen.

The AILA flyer also discusses the regulation that gives a grace  period of up to 60 days to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status following termination to remain in the US and not be considered to be in violation of status. The worker can use this time to prepare to depart, find another employer that will file a petition within the grace period or change to another status.

 

When Does Termination Occur?

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on June 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on June 1, 2022,  but continues to be paid from June 1, 2022 till August 1, 2022 while in nonproductive status.  This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor. Does the termination in this scenario occur on June 1, 2022 or on August 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a USCIS Policy Memo dated June 17, 2020, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination occurring on June 1, 2022 rather than August 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be August 1, 2022 rather than June 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider June 1, 2022 as the termination date.

 

Terminating Employees in Other Nonimmigrant Statuses  

The AILA Flyer provides the following recommendations when terminating O-1, TN, L-1 and E-1/E-2 employees:

Termination of O-1 employees requires:

• written notice to USCIS and

• offer to pay the cost of reasonable transportation to the country of last residence.

Termination of TN and L-1 employees:

•There is no specific immigration notification requirement or return transportation requirement.

Termination of E-1/E-2 employee:

•While not mandatory, it is recommended that the U.S. consulate that issued the E visa be notified that employment was terminated.

 

I-140 Petition Withdrawal

 The AILA flyer wisely notes that there is no requirement that an employer withdraw an approved I-140 petition after a foreign worker’s employment is terminated. If withdrawal is desired, consider the timing of that request carefully, as it may have adverse consequences for the foreign worker. A withdrawal request made before 180 days have passed from approval will automatically revoke the petition. The worker will retain the priority date for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the standard six-year limit. Submission of a withdrawal request after 180 days have passed from approval will not result in automatic revocation of the I-140, and the terminated worker will be entitled to I-140 approval benefits, including continued eligibility for H-1B extensions beyond the six-year limit. The I-140 that is withdrawn after 180 days can still provide the legal basis for the H-4 spouse to receive employment authorization.

Thus, an employer may want to allow an I-140 to reach the 180-day mark before withdrawal as this would be  a benefit for the departing employee. When the attorney is representing the employer and employee, advising the employer to withdraw the I-140 at the 180 day mark or not withdraw at all will minimize the conflict of interest between the employer and employee at the time of termination.

Attorneys often do not wish to provide a copy of the I-140 petition to the employee who has been terminated even when it has been concurrently filed with an I-485 adjustment of status application. They view it as the employer’s I-140 petition. However, providing a copy of the I-140 petition and the underlying PERM labor certification would enable the terminated employee to file an I-485J that is required when the employee is porting to a new job in a same or similar occupation. Attorneys who do not wish to part with the I-140 should realize that there is a growing legal recognition of a foreign national’s interest in an I-140 petition where there is also a pending I-485. See, e.g., Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017) (clarifying that beneficiaries are “affected parties” under DHS regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings”); see also Lexmark Intern. v. Static Control, 134 S. Ct. 1377 (2014) (holding that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects); USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 (“The traditional distinction of petitioner, beneficiary, and affected party breaks down, however, when the law allows the beneficiary to leave the employ of the original petitioner and take a job elsewhere without disrupting the validity of the underlying immigrant visa petition on which the pending adjustment application depends.”); Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014) (“We agree that a beneficiary of an I-140 visa petition who has applied for adjustment of status and has attempted to port under [AC21] falls within the class of plaintiffs’ Congress has authorized to challenge the denial of that I-140 visa petition. It is clear from the statutory framework that such immigrant beneficiaries fall within the zone of interests it regulates or protects.”); Khedkar v. USCIS et al, No. 1:2020cv01510 – Document 23 (D.D.C. 2021) (USCIS acted unlawfully be issuing an RFE on the pending I-140 to the petitioning employer rather than the beneficiary who had ported who was also a party in the  I-140 adjudication proceeding).

It would thus behoove the employer to share a redacted version of the I-140 and labor certification with the terminated employee especially when it is associated with an I-485 application. Information pertaining to the employer such as sensitive financial information and documents can obviously be redacted, although the employee must be given sufficient information to know the exact nature of the position and duties for which he or she was sponsored in order to file an I-485J and make a cogent case for portability under INA 204(j).

 

Dual Representation

Finally, the AILA flyer advises that the attorney is generally representing both the employer and the employee. While sole representation may be possible when filing the nonimmigrant visa petition and the foreign national employee is still overseas and thus not in contact with the attorney, at the time when the employee has come to the US and especially after the I-140 and I-485 have been filed, it would be difficult for the attorney to justify that he or she is only representing the employer when the employee has been advised about legal issues pertaining to maintenance of nonimmigrant status and adjustment of status.

AILA thus cautions:

There is a dual representation situation in immigration cases where a firm represents both the petitioner (employer) and worker (employee). When this occurs, the attorney is required to keep each party (petitioner and beneficiary) adequately informed of any

information related to that representation. Any information revealed by either party during this representation cannot be kept confidential from the other party. If looking for guidance related to the termination of a foreign worker, keep in mind that you should not mention specific names of individuals unless you intend to share this information with all parties.

Of course,  at the point of termination it becomes difficult and tricky to represent both employer and employee  because of potential conflicts of interest and especially when the employee seeks to port to another employer in a same or similar occupation. Under these circumstances, it would either require the attorney to withdraw from the representation of one or both clients or to continue to represent one or both clients if the clients have agreed to the conflict in advance or at the time of its occurrence. My article, “Finding the Golden Mean in Dual Representation”, available on AILA InfoNet at AILA Doc. No. 07081769, realizes that withdrawing from the matter entirely is impractical and provides guidance and strategies on how attorneys can set forth the parameters of the representation between the employer and employee client at the outset of the representation, and be able get agreement from both clients on how the attorney will handle the representation if there is termination down the road.

[This blog is for informational purposes and should not be relied upon as a substitute for legal advice.]

 

 

 

Cyrus Mehta

Advance Conflict Waivers

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MANAGING EXPECTATIONS OF IMMIGRATION CLIENTS THROUGH SMART ETHICAL PRACTICES

Only a fool of an attorney would not set out the parameters of the representation in advance and decide how to handle clients in the event of a conflict of interest between them. This is particularly so when a client embarks on a green card sponsorship through an employer under one of the backlogged Employment-based Second (EB-2) or Employment-based Third Preference (EB-3) preferences. Some of the backlogs for people could easily take over a decade to result in permanent residency, and thus the attorney may have these clients for a very long time.

Since the goals of both the employer and employee are common at the outset, which is to obtain permanent residence, it is ethically possible for one attorney to represent both the clients. Indeed, it is more efficient and cost effective to have one attorney when both clients have the same objective. But over the course of a decade or more things are bound to change, and in the employment context, termination is bound to occur where one party may choose not to sponsor or seek sponsorship for the green card. What is the role of the immigration attorney when the employment relationship has been severed? If there is an irresolvable conflict, the attorney representing both parties may need to withdraw from the representation, and each of the parties will need new counsel. But this may not necessarily be the case if the representation is structured from the very outset that contemplates predictable conflicts. Under the Golden Mean approach, it may be ethically possible to continue to represent one client even after termination through the use of advance waivers and limited representation. You can learn more about the Golden Mean by reading about my debate with Bruce Hake who asserts, without legal foundation, that advance waivers are unethical in immigration practice, Counterpoint: Ethically Handling Conflicts Between Two Clients Through The “Golden Mean,”http://www.ilw.com/articles/2007,1009-mehta.shtm.

The Golden Mean enables the attorney to represent the client who most needs this attorney. One can predict in advance that there will be conflicts down the road, and the most obvious and predictable is termination of the job opportunity that is the basis for the sponsorship. How will the attorney handle the foreign national’s ability to “port” to a new employer under INA section 204(j) when the sponsoring employer still wants this employee? It is this employee that initially sought advice from the attorney, introduced the attorney to the employer who embarked first upon the H-1B visa sponsorship and then green card sponsorship, and is now looking to exercise portability to a more secure job. The foreign national client would feel betrayed if the attorney withdrew at this point. If the attorney cannot obtain the consent of the employer client to continue to represent the employee, this might become inevitable. Under the Golden Mean approach, the attorney may have been able to indicate to the employer, at the start, that this employee was a long standing client, and while he or she would vigorously represent both during the green card process, the attorney would continue to represent the employee in the event of termination. It is inevitable that an attorney may be more in contact with one client than another client, but that does not mean that the attorney provides differential services to each client during the representation. The attorney must represent each client competently during the dual representation. Yet, like it or not, the notion of the primary and secondary client exists in case law, Allegaert v. Perot, 565 F.2d 246 (2d Cir.1977), and in immigration practice, a lawyer’s contacts may either be more extensive with the employer or the employee. If an employee’s services are terminated, it may be still possible to represent the employee. Likewise, an attorney may also continue to represent the employer even after the employee has left.

Of course, one needs to get informed consent of clients for advance conflict waivers, limited representation and even in assuming the joint representation of the employer and the employee client. The standard for obtaining informed consent is the same for all of these situations. Clearly, the informed consent standard is heightened when the attorney takes a potentially adverse position against the former client, and in many cases, some conflicts cannot be consented to if the lawyer is unable to provide competent and diligent representation to each affected client. Also, the sophistication of the client will be taken into consideration in determining whether there was truly informed consent. In immigration practice, a lawyer does not advocate termination. If it happens upon the volition of one or both parties, the lawyer’s representation of the other client may not be so adverse in the same sense when clients turn against one another in the litigation context. Moreover, in Rite Aid Corporation Securities Litigation, 139 F. Supp. 2d 649 (E.D. Pa 2001), the court held that the informed consent standard may be dropped to its lowest point when there is an “accommodation client.” There the same law firm represented Rite Aid and the CEO, and in the engagement letter, the law firm indicated that in the event of a conflict, the firm would continue to represent Rite Aid while CEO would retain separate counsel. The conflict waiver was upheld because the CEO was an accommodation client as he agreed to engage counsel through the corporation.

In immigration practice, the employee often times is represented by counsel that the employer engages to prepare and file an employment-based nonimmigrant visa petition for a limited duration of time. If the employee, who may be the accommodation client here, chooses another objective, such as seeking another employer and different immigration strategy, he or she may seek other counsel while the attorney for the employer can continue to represent the employer. Similarly, at times, the employer could also be an accommodation client with respect to the employee client. A well known artist, who has consulted with the attorney previously, can be sponsored by Agent A for an extraordinary ability O visa for a limited engagement. The attorney representing the O visa national can seek an advance waiver indicating that should the artist, his long standing client, obtain another engagement, he can continue to represent her in pursuit of another O visa or permanent residency. This way the foreign national client won’t feel let down who may have more invested in the attorney-client relationship than the agent if she obtained an exciting prospect through Agent B.

Immigration attorneys can learn a lot from decisions such as Rite Aid and Allegaert in ethically structuring dual representation engagements so as to manage the expectations of the clients, effectively represent them jointly, and if there is a conflict, where ethically permissible, continue to represent the client that most needs the attorney to champion his or her interests.