What duty does a “company lawyer” owe to an employee for whom he or she has filed immigration documents?

More and more, we see situations where an employee invokes his or her rights under Section 106(c) of the American Competiveness in the 21st Century Act of 2000 (AC21) and changes employers, the employer immediately attempts to revoke the former employee’s I-140 petition. This article focuses on the role of “company lawyers” in facilitating such petition withdrawals and the duties they owe to the former employees.

The first issue to resolve is whether the attorney represents or has represented the employee. Most commonly, this can be resolved by ascertaining whether the attorney filed a form G-28, Notice of Appearance as Attorney of Record, naming the employee as his or her client. Irrespective of any other disclaimers from the attorney, if the attorney filed a G-28 naming the employee, then an attorney-client relationship exists.

Some attorneys attempt to prevent the formation of an attorney-client relationship with a company’s employees by telling the employees that they are only filing a G-28 in order to facilitate the filing of documents on behalf of the employees. Such disclaimers are of no consequence. Form G-28 explicitly states that the attorney is the legal representative of the named individual (the employee). More significantly, the USCIS requires individuals represented to countersign each form in order to provide the attorney with information about the employee that is confidential and would not otherwise be disclosed.

Without question, the filing of a form G-28 is dispositive and conclusively establishes an attorney-client relationship.

A client has a legal expectation that his or her attorney will not only represent the client zealously, but also will not take any actions adverse to the client’s interest. More to the point, an attorney may not represent an adverse party. The California Rules of Professional Conduct are typical of those found in all states (as they are based on the ABA Model Rules). In particular, Rule 3-310 provides:

Rule 3-310 Avoiding the Representation of Adverse Interests

(E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.

Please note that this rule requires that an attorney must obtain the written, informed consent of a client or former client before accepting employment from a party with adverse interests. While an attorney may obtain such consent at the start of a case, when everyone is happy, that consent does not continue automatically if circumstances change and the parties become adverse. At best, an attorney that has obtained such consent may continue to represent the company after the employee leaves, but under no circumstances may the attorney take actions that harm the interests of his or her former (employee) client.

This issue comes into play when an employee with an application for adjustment of status pending for more than 180 days elects to change employers and the employer decides to attempt to withdraw the previously filed I-140.

As an initial matter, there is no legal or practical reason for withdrawing an I-140. Unlike H1b petitions, that employer must withdraw when an employee no longer works for them, there is no similar requirement in the law for I-140 petitions. Some attorneys and employer have advanced the rationalization that unless an employer withdraws an I-140 petition for a departed employee, they may have difficulty establishing “ability to pay” for other sponsored employees in the future. This is nonsense. All the employer has to do is explain that the employee has left and that they are no longer offering that employee employment.

In reality, most employers attempt to withdraw the I-140 petitions of departed employees simply to be petty and vindictive. They want to harm the departed employee’s chances of immigrating and also make an example of that employee in order to discourage others from leaving. It is one thing for an employer to engage in this kind of disreputable conduct. It is quite another for an attorney who once, or possibly still represents the employee to participate in actively harming his or her client or former client.

Unless and until an attorney withdraws his or her G-28, or it is superseded by another attorney’s G-28, the original attorney remains the attorney of record in the eyes of the USCIS. As such, the attorney has an affirmative duty to take every reasonable step to advance the client’s case.

Even in cases where the attorney has withdrawn from representation, or has been superseded by another attorney, the original attorney cannot ethically participate in an action that could harm the interests of his or her former client. The proper course of action is to withdraw from anything further involving the case, once the conflict manifests itself. Thus, when an employer tells the “company lawyer” that the employer wishes to withdraw the I-140 of the former employee, the proper course of action by the attorney is to withdraw and refuse to participate in any such notification. Anything less is a clear ethical violation and will leave the attorney open to a disciplinary complaint filed by the former client.