On February 13, 2006, the Department of Labor (DOL) published a rule prohibiting foreign national beneficiaries from paying attorney fees and other costs related to the preparation and filing of a labor certification application. Subsection (a) of the rule creates “an explicit and complete ban on the sale, barter, and purchase of labor certification applications and certifications.” 71 FR at 7658, 7662. Subsection (b) would “ban  alien payment, directly or indirectly, of the employer’s attorney’s fees and costs related to preparing, filing, and obtaining a permanent labor certification,” because “[e]mployers, not aliens, file  permanent labor certification application[s].” Id. The purpose the prohibition, according to DOL, is to curb the filing and sale of fraudulent applications or certifications. 71 FR at 7657-8. The DOL favors broad implementation of this rule, which would effectively prohibit the establishment of attorney-client relationships between foreign nationals and the attorneys filing labor certification applications of which they are the beneficiaries.
Dual representation is an important facet of the immigration law practice. The technical distinction insisted upon by DOL does not reflect the reality that attorneys routinely provide advice regarding rights and obligations under the immigration law to both employers and employees. This dual representation arises naturally from the labor certification process, which requires cooperation between the employer and the employee in order for a successful application to result. Advice to employees includes information as to options for obtaining permanent residence status and obtaining visas from consulates overseas, portability, and information regarding unlawful workplace practices under the laws and rules that govern employment-based visas. Moreover, since the timing of the labor certification process affects the ability of a foreign national to extend his or her nonimmigrant visa status while the application is pending, foreign nationals have strong incentives to obtain legal advice regarding their options and when to begin the recruitment process. Accordingly, it is a gross oversimplification to justify the prohibition on payment of attorney fees by foreign nationals, as the DOL does, on the basis that “employers, not aliens, file a permanent labor certification application.” 71 FR at 7660.
In addition, small businesses often cannot afford to pay for the entire process although they may be very eager to hire a foreign national for a position they cannot fill with a qualified United States citizen employee. The same is true of non-profits, local government agencies, and universities. The DOL proposal therefore chills the filing of legitimate labor certification applications, at a cost to the national economy.
In light of the nature of the labor certification process, the DOL’s insistence on preventing an attorney-client relationship is unrealistic and unworkable. Attorney-client relationships may commence without a formal agreement or payment.1
Moreover, certain ethical rules compel attorneys to advise unrepresented persons to obtain counsel when their interests collide with that of the attorney’s client.2
Yet t he DOL would prevent foreign nationals from retaining counsel. An attorney who advises the foreign national beneficiary of these matters would therefore be potentially liable for the unauthorized practice of law.
Prohibiting foreign national beneficiaries from retaining attorneys in connection with the filing of a labor certification application raises constitutional issues as well. The restriction violates the associational rights of foreign nationals residing in the United States and prohibits protected speech by attorneys who prepare and file labor certification applications.
FIRST AMENDMENT RIGHTS OF FOREIGN NATIONALS
The First Amendment protects foreign nationals residing in the United States, and no court has held that such protections do not extend to those present on nonimmigrant student or employment visas. SeeBridges v. Wixon,
326 U.S. 135 (1945) (holding that "freedom of speech and of press is accorded aliens residing in this country"); Parcham v. INS
, 769 F.2d 1001, 1004 (4 th Cir. 1985) (noting that nonimmigrant student present in the United States was protected by the First Amendment right to peaceably assemble). Included in these guarantees is the right to petition the government for a redress of grievances, and the related right to hire counsel of one’s own choosing in the criminal, civil, and administrative contexts. SeeGoldberg v. Kelly
, 397 U.S. 254 (1970) (noting that “the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel” (quoting Powell v. Alabama
, 287 U.S. 45, 68-69 (1932)); United Mine Workers of America v. Illinois State Bar Assoc.
, 389 U.S. 217 (1967).
In United Mine Workers
, the Supreme Court held that the Illinois State Bar Association could not prevent a labor union from retaining an attorney to prosecute workers’ compensation claims on behalf of its members. The Illinois Bar Association charged that the Union was engaged in the unauthorized practice of law and argued that potential conflicts of interest could arise between the Union and its members. In its ruling, the Court recognized that “the First Amendment does not protect speech and assembly only to the extent it can be characterized as political,” and invalidated the lower court’s decree preventing “any financial connection between the attorney and the Union.” 389 U.S. at 217. The Court held that the state’s broad power to regulate the practice of law notwithstanding, restraints against the rights of speech, assembly, and petition “cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State’s legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil.” Id. The Court also noted that the likelihood of conflicts impeding the prosecution of worker’s claims was too negligible to justify such a broad prohibition. See
The DOL’s interest in preventing fraud is similarly understandable, given the well-documented abuses of the labor certification process by employers, agents, and attorneys. Unfortunately, however, the proposed regulation deprives foreign national workers residing in the United States from independently obtaining information regarding their immigration options and leaves them completely dependent on their employers to determine when to begin the labor certification process, if at all.
FIRST AMENDMENT RIGHTS OF ATTORNEYS
The DOL’s proposal strikes at the heart of the attorney-client relationship. Conceivably, the attorney could offer legal advice to the beneficiary without accepting payment. The proposed rule, however, seeks to prohibit the establishment of an attorney-client relationship between the beneficiary and the attorney. By expecting only the employer to pay the legal fee, the DOL assumes that the foreign national employee is not the client of the attorney.
Prohibitions on in-person solicitation of business by ambulance-chasing attorneys have been upheld as reasonable measures to protect the administration of justice and a vulnerable public from unscrupulous manipulation and harm. See Ohralik v. Ohio State Bar Ass’n
, 436 U.S. 447 (1978). Legal advice related to the preparation of a labor certification application is a far cry from that scenario. Nor does the fact that this legal assistance is exchanged for profit subject it to unlimited regulation in the name of any legitimate government interest. As speech that concerns lawful activity and is not misleading, legal advice related to the labor certification process is at the very least subject to the same protections as commercial speech under the First Amendment. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.
, 447 U.S. 557 (1980); Bates,
433 U.S. at 370. However laudable the government’s interest in preventing fraud, the prohibition on payment of legal fees by foreign national beneficiaries is far more extensive than necessary and unconstitutionally chills protected speech.
The Supreme Court has previously recognized that restrictions on the speech of attorneys must not infringe upon otherwise lawful activity. In Bates v. State Bar of Arizona,
the Court held that despite the government’s interest in preventing fraud, “[t]he appropriate response . . . is a sanction addressed to that problem alone, not a sanction that unduly burdens a legitimate activity.”
433 U.S. 350 (1977) [emphasis added]. Given the many mechanisms available to the DOL to prevent fraud, the government’s ability to prosecute offenders, and the legal profession’s own rules against unethical behavior, the prohibition on payment of legal fees and costs by the foreign national beneficiary is but another example of overreaching in the proposed regulations.
In its effort to curb fraud and misuse of the labor certification process, the DOL proposes a regulation that unconstitutionally impairs the First Amendment rights of both immigration attorneys and foreign nationals. A more thorough analysis of the policy implications of the regulation is necessary. Clearly, however, the regulation does nothing to prevent unscrupulous employers from continuing to file fraudulent labor certification applications with or without the assistance of attorneys. With this regulation, the DOL succeeds only in depriving foreign nationals of information necessary to make informed decisions concerning their professional and personal futures.
* Cristina Velez is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices in the area of immigration law. She is a graduate of Cornell Law School, where she was an editor of the Cornell Journal of Law and Public Policy. She is admitted to the bar of the State of New York.
1MODEL RULES OF PROF’L CONDUCT R. 1.18 (2003) provides that even if the actual representation does not ensue, a lawyer “shall not use or reveal information learned in a consultation” from a prospective client.
2MODEL RULES OF PROF’L CONDUCT R. 4.3 (2003) states: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”