ADVANCE CONFLICT WAIVERS

MANAGING EXPECTATIONS OF IMMIGRATION CLIENTS THROUGH SMART ETHICAL PRACTICES
By Cyrus D. Mehta

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.

WHY IS THE THREE YEAR DEGREE SO PROBLEMATIC IN IMMIGRATION LAW?

A recent article in Newsweek, http://bit.ly/39fduB, notes a trend toward 3 year bachelor’s degree programs in the United States instead of the usual four year program. The main advantage of cutting a year from the 4 year program is to reduce the tuition costs by 25%. Neither the quality nor length of the education gets affected in a 3 year degree program since the program can extend into the summer months over each of the 3 years. Also, the fall to spring academic year is a relic of an era prior to the American Revolution, where students would put down their books and work on the farms during the summer months.

While the Newsweek article suggests that there are good reasons for a shift towards the 3 year degree program, and educational systems in other countries have sensibly followed the 3- year program, possessing a 3 year degree puts a foreign national at a severe disadvantage when being sponsored by a US employer for the green card. Within the employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html. Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3.

To be classified under the EB-2 under Section 203(b)(2) of the Immigration and Nationality Act, the job must require an advanced degree or its equivalent, which the USCIS defines as a bachelor’s degree plus five years of post baccalaureate experience. This is a reasonable interpretation of the equivalency requirement to satisfy the advanced degree under Section 203(b)(2). Unfortunately, under the strained interpretation of Section 203(b)(2) by United States Citizenship and Immigration Service (USCIS), the bachelor’s degree must be a 4 year degree program in the foreign country in order for it to be equivalent to a US bachelor’s degree. If the foreign national possesses a 3 year degree, it would generally not be recognized as being equivalent to a 4 year degree even if the course load during the 3 year program is comparable to the course load of a 4 year program. While the USCIS makes an exception to some 3 year degree programs, such as a U.K. degree, it only does so because the student spends one year in the A-level prior to college, which is comparable to a year in college in the United States. Other 3 year degree programs, such as the Bachelor of Commerce or Bachelor of Science degrees of India, do not qualify as being equivalent to a 4 year US degree. To add further insult to injury, even if the holder of a 3 year Indian degree has additional education such as a Charted Accountancy certification or a post-graduate diploma in Computer Science, that would not suffice. The USCIS, especially its Nebraska and Texas Service Centers, which adjudicates I-140 immigrant visa petitions, insist on a single source 4 year degree.

It serves absolutely no public policy purpose for the USCIS to deny EB-2 classification to those who graduate from universities that have 3 year degree programs, even though it can be demonstrated that such a degree may be qualitatively similar to a 4 year US degree. And even if such an individual seeks EB-3 classification, it is imperative that the labor certification properly define what the employer means by a degree that is less than a 4 year bachelor’s degree. Thus, in the above examples, if the employer fails to state on the labor certification that it will accept a 3 year bachelor’s degree plus one or more years of educational course work, the I-140 petition will get denied even if it is filed under EB-3 rather than EB-2. Most of these individuals are here legally in H-1B status and must wait for endless years in the EB-3 to get the green card even though their employers have undertaken a good faith, albeit unsuccessful, test of the domestic labor market. Many out of frustration will leave and return to their home countries, and the United States will be the loser of their valuable skills which were found to be in short supply.

If the USCIS chose to interpret the EB-2 provision, Section 203(b)(2), more broadly and sensibly, there is enough leeway to do so. Also, there is now sufficient evidence even in the US of 3 year degree programs. On the other hand, if the agency still desires to cling onto its narrow interpretation, which has caused needless hardship to 3-year degree holders, Congress must step in and clarify the degree equivalency requirement under EB-2. Indeed, the degree equivalency requirement to establish eligibility for an H-1B visa is so much more sensible as it allows the foreign national to combine education and experience to demonstrate the equivalency of a US 4 year degree. The same standards of equivalency ought to apply when the foreign national is being sponsored by an employer for permanent residency.

USCIS ISSUES CONTROVERSIAL CLARIFICATION OF REQUIREMENTS FOR AGENTS FILING AS PETITIONERS FOR O AND P VISAS

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries "that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers."

USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an "established agent" files the petition.

A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

The supporting documentation includes a complete itinerary of the event or events.
The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
The contract between the employers and the beneficiary is submitted.
The agent explains the terms and conditions of the employment and provides any required documentation.

In addition, USCIS pointed out, an agent who is also the beneficiary's employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be "in business" as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers' "agent" does not meet this condition, the agency said. "For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers."

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is "in business as an agent," and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

This is how the new USCIS guidance can completely kill the nonprofit arts industry. Suppose a symphony orchestra applies for an O visa for a solo violinist and provides an itinerary for its own performances with this artist, and in the O petition the symphony orchestra states that while the beneficiary will perform for this orchestra, she will also be doing some performances on behalf of another symphony orchestra, which will pay the violinist directly. These O-1 petitions have historically been approved, but they would no longer be approvable under the new guidance.

Our colleague Angelo Paparelli predicts that this news release will shake up the world of arts and entertainment. As the "Nation of Immigrators" blog notes, "Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders."

The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf. The blog is available at http://www.nationofimmigrators.com/.

H-1B BIGOTRY

There appears to be a troubling trend these days. Attacking the H-1B visa is code for keeping the Indians out. Leading the drumbeat against the H-1B are Senators Grassley (R-IA) and Durbin (D-IL), http://www.cyrusmehta.com/News.aspx. In his latest missive to the new USCIS Director, Senator Grassley makes H-1B bigotry politically respectable, http://tinylink.com/?I38d5pyKzi. While no one is denying the existence of fraud in the H-1B program, like in other visa programs, Senator Grassley finds fraud whenever he sees fit, especially when it concerns Indian computer consulting companies.



An IT consulting company may have several clients and can demonstrate that it is legitimately in the business of computer consulting. But it may not be able to pinpoint exactly where the H-1B beneficiary may work at the time of filing the petition. This does not mean that the company intends to commit fraud, as Senator Grassley thinks. When a law firm with many clients hires an associate, it is usually unable to ascertain with laser precision accuracy the client matter this associate will work on. Yet, the law firm has made a business judgment to hire an additional associate as it knows that a client will ultimately need the lawyer’s services. If there is lag time in assigning this associate from one client matter to the next, the law firm still continues to hire the associate and pays him or her. No one would accuse the law firm of committing fraud. Such is the business model of many service related industries or professions, and it is difficult to understand why an Indian consulting company must pin point many months in advance, with extensive documentary proof from the client, where it will place its prospective H-1B employee when it has a history of assigning its workers on client projects and paying them regularly. And in the event of a lag between work assignments, the H-1B law prohibits an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period. Why should this now be considered fraud?



More recently, Steve Hamm and Moira Herbst of BusinessWeek wrote a disturbing article, America’s High-Tech Sweat Shops, http://www.businessweek.com/magazine/content/09_41/b4150034732629.htm?campaign_id=technology_related. Their article focuses on bad apples in the H-1B program, who have already been prosecuted, which means that the existing law works against the abusers. Unfortunately, the article fails to highlight a single positive aspect of the H-1B visa, and there are many. Recently, the fact that four out of the six US Nobel prize winners were foreign born is a testament to the fact that this award has something to do with a smart immigration policy, http://immigrationimpact.com/2009/10/09/nobel-prizes-winners-and-immigration-policy/.In the experience of this writer, most H-1B employers want to play by the rules, which are hyper-technical, difficult to follow and complex. They have been designed to trap the unsuspecting H-1B petitioner, especially one that relies on many H-1B workers. Yet, employers comply with obtaining prevailing wage data to support the market-based wage, post notices at various worksites and often respond in great and meticulous detail to requests for evidence or notices of intent to deny! One wonders why an employer would go through all of these hoops and hurdles if it wanted to hire a worker on the cheap. None of these employers were profiled in the article.



It would be one thing if the BusinessWeek article focused on serious H-1B abuses (and there are enough teeth in the current law to punish such employers) in order to advance the rights of aggrieved Indian H-1B workers, but it gives prominence to Programmers Guild, which has links with NumbersUSA and other white supremacist organizations. The Programmers Guild cares two hoots about any immigrant worker; rather it wants to get rid of them. If you visit the Programmers Guild website, http://www.programmersguild.org/, they caricature Indian companies and the lawyers that represent them. It is difficult to understand how Programmer Guild, and its lawyer head John Miano, who are given so much play in the article, can effectively represent the interests of even US programmers when all I see on their website is whining about immigrants. They have no seminars on cutting edge technology, entrepreneurship, job placement information, networking opportunities, nothing, except for anti-immigrant invective. It is not surprising that the BusinessWeek article is spewing the worst kind of racist invective against Indians. It appears to have hurt the sentiments of lots of hardworking Indian H-1B workers across the board as can be seen on one of the discussion boards of Immigration Voice, http://tinylink.com/?LunbQu2SHb. These same Indian H-1B workers from India are also hopelessly stuck in the Employment-based Second and Third Preference backlogs, which also work against India because of the per country limits in each of these categories.



The more one reads between the lines of the BusinessWeek article, it smacks of racist undertones such as the Brazilian disliking the curries of his Indian roommates, and the reporter having cheeseburgers with John Miano at a mid-century diner in “tony” Summit, NJ (which is code for those halcyon days prior to the 1965 Act after which Indians came to open their curry restaurants and H-1B sweat shops). Rather than profiling people who advocate for more restrictions on the H-1B program, especially its use by Indian companies, BusinessWeek could have also quoted people who could have spoken positively about the H-1B program and the value that these so called “body shops” have brought to American businesses, which have betrayed no hesitation in taking advantage of them. Also, the article does not clearly articulate that if a “body shop” plays by the rules, employs the H-1B worker and pays the required wage (higher of the prevailing or actual), posts the LCA, and charges a mark-up to the client, whether this can be characterized as fraud. Is there not a freedom for Indian companies, even Indian-owned companies, to contract and make a profit? Attacking the H-1B visa program is a convenient way to attack Indians and for xenophobes to disguise their fear or hatred of immigrants under the cloak of rational argument.