Who Is the Client: Immigration

By Joshua Daley Paulin

Apart from the complexities of immigration law, there are all sorts of potential ethical tangles for the immigration lawyer. Think of them as “springing ethical problems.” When the representation begins, petitioner and beneficiary are both in agreement as to the path to follow and no conflict yet exists. Down the road, however, the petitioner-beneficiary relationship (most commonly spousal or employment) comes under strain or is broken off altogether, and the unprepared lawyer is in for a headache. This isn’t unique to immigration, of course, but the fact that many immigration processes take a long time to reach their conclusion means that it won’t take long for the immigration lawyer to come across such situations.

Here are a few examples:

A foreign woman marries a U.S. citizen. If in the United States, the husband will file a petition for his wife, and she will file her own petition for permanent residence. It could take six months for her to receive a two-year conditional green card, and in the 90 days prior to the expiration of that card, she and her husband must file jointly to remove the condition, offering evidence that the marriage was valid and the relationship is ongoing. Now, at some point prior to the removal of the condition, the wife comes in to your office saying, “I’m in an abusive relationship” or “I found someone else.” Of course, there are options available to her in either situation, but if you handled the initial paperwork, your best option is to tell her to seek independent counsel because you represented them both. It’s a good idea to include language in the retainer agreement explaining that in case of conflict (and perhaps including a few matter-specific examples) husband and wife will need to retain new counsel. It’s also worth discussing these possibilities early in the attorney-client relationship.

Employment immigration can offer a challenge for the solo attorney as well. Boston immigration attorney Denis Fleming says, “oftentimes a solo practitioner is approached by the beneficiary [immigrant] at the request of a small business owner and ends up being retained by that employer/petitioner. It’s important to make clear to the beneficiary that your obligation is to the petitioner and that certain information may not be disclosed to [the beneficiary].”

In some cases, such as adjustment of status through labor certification, if the beneficiary or petitioner asks for his or her copy of the file, the lawyer will partition the file and give relevant portions to each party. In other cases, such as the popular H-1B visa program, there are special disclosure requirements: Even though the prospective employee will never sign any of the immigration forms, the U.S. Department of Labor requires that a copy of certain paperwork be given to the employee.

We can never completely avoid headaches arising out of conflicts, but we can minimize them by clear retainer agreements that explain the scope of representation and discuss likely problem areas.


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