Can I Select My Own Attorney? (Part 1 of 2)

[Read Part 2 of this MurthyDotCom NewsBrief.]

At the Murthy Law Firm, we are often asked by potential clients whether they can hire us for their immigration matters. The answer to this question often depends upon the type of immigration case. Given the importance of using a knowledgeable and experienced attorney to help with one’s immigration cases, foreign nationals should be familiar with situations when they may have some control over who will be representing them. Here we focus on attorney selection in the context of applying for lawful permanent residency (i.e., a “green card”). Part 2 of this article examines attorney selection in the context of nonimmigrant visa petitions.

Advice and Second Opinion is an Available Option

Even if one cannot select the immigration attorney for his/her case, it is always possible for anyone to obtain independent advice. At the Murthy Law Firm, we often provide second opinions in consultations with individuals who need advice related to immigration matters. It can provide insight into the full range of immigration options, including employment changes that cannot be discussed freely with the employer or the employer’s attorney. For others, it provides the information needed to engage in an informed discussion with the employer’s attorney, so that the right questions can be asked for a clear understanding of the options and risks.

Family-Based Immigrant Petitions

It is always permissible to work with an immigration lawyer or law firm to file a family-based green card case. Family-based immigrant petitions allow U.S. citizens and lawful permanent residents (LPRs) to sponsor certain qualifying family members. For more information on family-based immigration, including which family members are considered qualifying relatives, please refer to our MurthyDotCom InfoArticle, Family-Based Immigration Simplified (20.Jul.2020).

Self-Sponsored Employment-Based Petitions

Similarly, self-filed petitions allow foreign nationals to select their own attorneys. Employment-based, first preference (EB1) immigrant petitions for persons of extraordinary ability can be filed without being sponsored by an employer, as can employment-based, second preference (EB2) immigrant petitions with a national interest waiver (NIW). Individuals filing petitions in any of these categories generally have the luxury of selecting their own attorneys. More details on all three of these case types is available in the MurthyDotCom InfoArticle, Self-Petitioned, Employment-Based Options (29.Sep.2022).

Employment-Based Immigrant Petitions Requiring a Sponsoring Employer

Immigrant petitions in the employment-based preference categories, other than the self-sponsored ones described above, require a qualifying job offer from a sponsoring U.S. employer. In these cases, the employer must petition the government on behalf of the foreign national. In most EB2 and EB3 cases, the employer must obtain a PERM labor certification from the U.S. Department of Labor (DOL) and thereafter obtain approval of an I-140 immigrant petition. Additionally, the employer must pay the legal fees and all related costs for the PERM labor certification portion of the green card (GC) process. Employers have different policies regarding the selection of an attorney, but ultimately get to decide the attorney they will use for these case types.

Employment-Based I-485s

The adjustment-of-status application (form I-485) “belongs” to the foreign national applicant. However, for employer-sponsored cases, the foreign national still will require the support of the sponsoring employer when filing the I-485. Some employers, therefore, continue to maintain control over the choice of attorney when the I-485 stage is reached. But, other than in these situations, the foreign national is free to select an attorney to prepare and file the I-485 application.

Also, once the I-485 is pending for more than 180 days, the case may qualify for green card portability pursuant to the American Competitiveness in the 21st Century Act (AC21). The sponsored employee then may change employers if certain conditions are met. In this situation, the employee may choose an attorney.

Green Card Cases for Derivative Family Members

In employment-based green card cases, one’s spouse and minor children may be eligible to obtain permanent residence as derivative beneficiaries. In these cases, derivative family members may select their own attorneys, even if the primary family member could not. In practice, however, most people use the same attorney or law firm for all family members’ I-485 applications.

EB4, EB5, and Other Categories

The EB4 category is for special immigrants. In general, the answer to whether employer permission is needed when choosing one’s attorney in any EB4 case depends upon whether the employer is acting as the sponsor.

Another option of foreign nationals with the financial means is the employment-based, fifth-preference (EB5) immigrant investor category. An EB5 investor typically is free to hire the attorney or law firm of choice. More information on this category can be found in our InfoArticle, Overview of the Revisions Made to the EB5 Program (06.Apr.2022).

The same analysis applies to the remaining categories, such as asylees, “U” visa crime victims, victims of international trafficking, and battered spouses and children. In these cases, there is no employer sponsorship, and the individuals are free to choose any attorney.

Conclusion

U.S. immigration law is complex, and it is critical to seek the advice of a knowledgeable immigration attorney. In most employment-based cases, sponsoring employers control the choice of the attorney. However, it is always possible for individuals to make informed choices by seeking the advice of an attorney through a consultation.

[Read Part 2 of this MurthyDotCom NewsBrief.]

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

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