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“Dual Representation” in U.S. Employment-Based Immigration Law

An immigration attorney who files employment-based immigration cases represents both the petitioning employer and the employee beneficiary. This concept is known as “dual representation.”

This dual representation implicates two fundamental principles in the attorney-client privilege:

  1. Loyalty: Attorneys have a duty of loyalty to their clients, and when an attorney represents multiple clients in the same case, that attorney is required to be loyal to each client.
  2. Confidentiality: Attorneys have a duty of confidentiality towards their clients, and when an attorney represents multiple clients in the same case there cannot be secrets between those clients; any communication from one client to the attorney generally has to be revealed to the other client(s).

Dual representation in U.S. employment-based immigration law is convenient because both the employer and employee share the same objective: the employer wishes to employ the employee, and the employee wishes to be employed by the employer. 

However, sometimes the process can get complicated. For example, an employer may only be interested in sponsoring its employees for nonimmigrant status, while the employee would like to later apply for permanent residence; an employee may wish to transfer to a different employer; and either the employer or employee may wish to terminate the employment relationship. In such situations, an attorney may terminate representation of the employer, the employee, or both parties. However, in most cases, dual representation of both the employer and employee is beneficial, efficient, and effective. Nevertheless, it is important to recognize that dual representation exists and that an attorney has professional duties that must be afforded to each client.

Provided by:

Alexander Farquhar
Senior Associate Attorney – Dallas, Texas
David Swaim and Associates, P.C.