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IMMIGRATION AUGUST 29, 2025 | The Indian Eye 38
Resolving Conflicts of
Interest When an H-1B
Worker is Terminated
BY CYRUS MEHTA only effectuates a bona fide termination if it noti- requisite understanding and give informed con-
fies USCIS under 8 CFR §214.2(h)(11), otherwise sent.
he recent trend of issuing a Notice to Ap- the DOL will continue to hold the employer liable The attorney should inform both employer
pear (NTA) to terminated H-1B workers – for back wages even if the employee has been ter- and employee at the outset of the presentation re-
Teven within their 60-day grace period – has minated. garding what will happen if there is termination.[7]
created new ethical challenges for immigration Immigration attorneys generally represent The clients should be informed about the employ-
attorneys who often represent both employer and both employer and employee, and they face a po- er’s obligation to notify USCIS at the point of ter-
employee.[1] The NTA is the document that be- tential conflict especially since the employee will mination. A change or extension of status should
gins removal proceedings. The removal proceed- likely receive an NTA if there is a termination and be filed prior to the last day of termination if pos-
ing against the H-1B worker is initiated when the the employer notifies the USCIS. Yet, the employ- sible. If the H-1B worker is placed in removal, the
employer notifies USCIS about the termination er must be advised to notify the USCIS about the proceeding may be terminated by an Immigration
even though the H-1B worker is within their 60- H-1B worker’s termination to avoid back wage Judge if the H-1B worker’s change or extension
day grace period.[2] liability. In Amtel Group of Florida v. Yongma- of status is approved.[8] If the employer does not
An employer must pay the H-1B worker until hapakorn, [4] the Administrative Review Board consent to the representation of the employee post
there is a termination of employment.[3] The De- (ARB) held that an employer must meet three termination, the H1-B worker should be referred
partment of Labor has insisted that the employer requirements to effectuate a bona termination to independent counsel for advice and represen-
of the relationship under 20 CFR tation.
§655.731(c)(7)(ii): (1) the employ- Some attorneys undertake sole representa-
er must expressly terminate the tion of the employer in the H-1B context to avoid
employment relationship with the these sorts of conflicts, but this should be under-
H-1B worker, (2) the employer taken carefully as the sole representation mod-
must notify USCIS of the termina- el could break down if the attorney was advising
tion so that the USCIS can revoke the employee and the employee assumed that the
its prior approval of the employ- employer’s attorney was also representing the em-
er’s H-1B petition under 8 CFR ployee and relied on advice. The sole representa-
214.2(h)(11), and (3) the employer tion model could also potentially break down after
must provide the H-1B worker with the employer starts the green card process and the
payment of return transportation attorney becomes more involved in advising the
home under INA 214(c)(5)(A) and employee especially regarding adjustment of sta-
8 CFR 214.2(h)(4)(iii)(E).[5] tus, which is filed by the employee.
The attorney can navigate this Arguably advising an employer to notify the
conflict under the American Bar USCIS about the termination of the H-1B worker
Association’s Model Rule 1.7 (al- may not pose a conflict as the employer is obligated
though the attorney needs to refer to follow the rule to avoid back wage liability. This
to the analog of the Model Rule may have been the case before the current admin-
under their state bar rules of pro- istration started issuing an NTA and cutting short
fessional conduct). Model Rule 1.7 the 60-day grace period. The withdrawal of the
permits the attorney to represent H-1B can now result in devastating consequences
m of clients notwithstanding a conflict for the H-1B worker who may be placed in removal
CYRUS D. MEHTA & PARTNERS PLLC so long as the attorney can compe- proceedings. When there is a conflict, the attorney
tently and diligently represent both is required to withdraw from the representation
clients, and each affected client has of both affected clients. However, in the immigra-
given informed consent in writing. tion context this will neither serve the interests of
Comment 22 to Rule 1.7 authoriz- the employer and terminated H-1B worker espe-
es advance waivers to conflicts of cially when the attorney represents the employer
interest under certain circumstanc- with multiple H-1B workers. Instead, it would be
es.[6] If the conflict is foreseeable, more prudent for the attorney to represent both by
such as termination of employment setting forth the parameters of the representation
in the future, there is a greater like- between the employer and employee client at the
2 6th Floor
lihood that the client will have the very outset of the representation, which will enable
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