Joint Representation and Potential Conflict of Interest in Employment-Based Immigration Matters

Immigration attorneys typically represent an employer or prospective employer in connection with a proposed immigration matter.  Immigration matters are typically driven by the employer, meaning the employer is the one petitioning the government to be allowed to hire this foreign national.

Writing Out The Employee From Attorney Communications

Many immigration attorneys have said they request the foreign national sign an agreement that they acknowledge the lawyer only represents the employer, and won’t be communicating with the prospective employee.  They advise the foreign national of their right to obtain their own independent counsel.  The attorneys have reasons for doing it that way, but in our opinion they go too far.

Keeping Confidences Between Employer and Employee

Attorneys are subject to ethical rules of professional conduct, which govern representation when two parties, such as employer and employee, are involved on the same side of the same matter. Specifically, attorneys may not keep confidences (secrets) between parties who are both involved in the matter. This means that the foreign national should not discuss anything with the attorney or her law firm that they do not want the prospective employer to know. They should discuss such confidential matters with independent counsel of their choice.

For example, at immigration ethics seminars attorneys often discuss such matters as what to do if the employee says, “don’t tell my employer, but I have a criminal conviction,” or, “don’t tell the employer, but as soon as this H-1B goes through I’m leaving and transferring it to another employer.” Such statements put the attorney in a heck of a bind. Between employer/employee attorneys aren’t supposed to keep confidences from the other one.  If a foreign national ever wants to begin a sentence with, “don’t tell my employer,” stop.  Don’t say it.  Get your own independent counsel.  Such conflicts are one reason some attorneys have the employee sign a document acknowledging that the attorney represents the employer only.

Potential Consequences of Failure to Assess the Employee’s History

In my opinion, sweeping statements that the attorney only represents the employer and will not communicate with the employee are overly broad. Necessarily, there is information and documentation required from the foreign national, and the foreign national and his or her family will be directly affected by the outcome.

A colleague once asked my input when they did an entire PERM labor certification case, got the labor certification approved by DOL, and did the next step of the petition with USCIS, which was approved.  The last step was for the foreign national to apply for the permanent residence (green card) based on the approved petition.  It wasn’t until that point, after the case was basically done, and the employer had spent thousands on recruitment, advertising, legal fees, government fees, and other costs, that they learned the employee was inadmissible to the country.  There was no way for him to get the permanent residence.

There are many grounds of inadmissibility, which will be the subject of a later post.  In the example above, the prospective employee was inadmissible due to prior immigration history.  He had been unlawfully present in the U.S. 365 days or more, and was not eligible for a waiver.  Ideally, that is something that would have been good to know at the outset.  Knowing it at the outset, however, would require communication with the employee about his prior history, which adds a lot of time and attorney expertise needed to the case, and if there’s something they don’t want the employer to know, they should get their own independent attorney to do an admissibility review.

Informing the Employee of Potential Conflict and Scope of Communication

We believe it’s important for the employer’s attorney to communicate with the employee regarding history, information, and documentation required for the case.  At least the attorney needs to know the employee’s current immigration status, immigration history, credentials, and criminal history.  The employer may already have much of that information. The employee needs to be informed of the scope of the attorney communication with the employee and potential conflict of interest.

Explaining the scope is important to avoid other issues as well.  In addition to the conflict concerns, unnecessary constant communications by the employee to the attorney is another reason attorneys say they don’t communicate with the employee.  That type of situation is not productive for an efficient or successful outcome.

Certain Employer Information May be Kept Confidential from the Employee

On the other side, there may be information, such as company financial information or salary survey information, that the employer will not want disclosed. This information is allowed to be kept confidential from the employee.