Shopping for H-2A Representation
What to look for when shopping for H-2A or H-2B representation
The first question a prospective employer often confronts when looking for H-2A or H-2B representation is whether to choose a law firm or an agency. This article- written in parts by an attorney with over twenty years’ experience in filing H-2A and H-2B applications- briefly outlines a few key differences between law firms and agencies. In part 2, the article will discuss how to make the choice between law firms or agencies once you have identified a few candidates.
What is the difference between a law firm and an agency?
Lawyers are regulated by their state bar associations and are held to strict ethical standards. This distinction comes into play many times in the course of H-2A or H-2B representation, most notably in the following five main areas:
Legal Understanding and Client Protection
The greatest benefit of hiring lawyers is their complete understanding of all aspects of the process, as well as the protection and education that offers the employer. In my experience, many agents may understand the application process but not fully understand the legal implications of the commitments a client makes when filing an H-2A or H-2B application. Thus, clients remain legally exposed and woefully undereducated about serious legal commitments because their representative neither understands nor can explain them. See Part 2 of this article to fully understand the protections a law firm or agency should provide.
Honesty and Transparency
A key benefit of legal representation in a time-sensitive bureaucratic application process is honesty. Lawyers are prohibited from lying to their clients-doing so violates several ethical rules and subjects the lawyer to state bar discipline. Thus, if mistakes are made or there are delays in the H-2 process, a lawyer must them to you transparently. This explanation has two benefits: first, you can determine who is responsible for the mistake or delay; secondly, the explanation helps you gain a better understanding of the process, helping you avoid similar mistakes in the future.
Accountability and Malpractice Protection
Lawyers typically carry malpractice insurance and are regulated by their various state bar associations. One of the most common concerns I hear from clients about their representation is how helpless they feel during the process. With a law firm, if there is a mistake or wrong advice given causing a poor result or significant delay, a claim can be made to malpractice insurance without resorting to a lawsuit.
While malpractice claims are rare, lawyers are required to keep detailed records of their work, including when and where the work was completed. Because of this, law firms will often return client funds and not charge for errors made during representation. If incorrect advice is given or if an attorney engages in unscrupulous conduct, clients can file a complaint with the state bar.
By contrast, with agencies, clients will likely need to rely on their original contracts – documents typically drafted by the agency and heavily biased in its favor.
Representation and Conflicts of Interest
It is important to understand who the law firm or agent represents throughout the entire process. Lawyers generally represent only the employer, as ethical guidelines dictate. Agents, however, often represent all parties because they also recruit the workers. Agents will have separate contracts with both the employer and with the worker.
How does representing all parties differ from representing a single party? A lawyer must disclose all material facts relevant to their client and must zealously protect the client’s interests. For example, if a worker tells the lawyer or his staff that he is unhappy and wants to leave, the lawyer must inform the employer. Agents on the other hand, can give advice that conflicts with the employer’s interest. They might even plan to move worker to a different employer – profiting multiple times from the same worker within a single year. Agencies may also promise workers future placements with a different employer, creating a disincentive for the worker to perform well in the present year.
Another common issue arises when the employer likes the worker but not the agency. Because the agency has a contract with the worker, they can use that relationship to pressure the employer into continuing the business relationship instead of moving to more competent representation. While an agency may say that the worker’s contract prevents them from leaving, that is not true in practice because the workers are not bound servants.
Essentially, any contract the worker signs should be with the employer only. Avoid agencies that are overly involved with the workers, contractually or otherwise. I would personally would feel very uncomfortable if my agency had separate contracts with my workers and maintained continuous separate contact with them without my knowledge or consent. Such situations should be avoided from the beginning of representation. Overall, avoid agencies that take money from both you as the employer and from your worker, as those interests are inherently conflicting.
Agencies with “In-House” Lawyers
What if the agency says it has lawyers on staff? This is a common argument agencies use to legitimize their services, but it is not the same as direct legal representation. The in-house attorney represents the company – not the client-and will take great pains to ensure there is no illusion of direct legal representation between the attorney and the client.
A simple test to reveal this: ask to speak directly with the in-house attorney. Most likely, the prospective employer will likely be rebuffed. Why? Because the in-house lawyer represents the business and not the prospective client. If by chance, the prospective client is able to speak to an attorney, ask whether your communication constitutes legal representation. You will be told that it does not because the lawyer works for the company and represents only the company.
Simply put, an attorney cannot ethically represent both the company and its clients at the same time. Accordingly, any advice from an in-house lawyer will align with the agency’s interests. Without direct legal representation, clients lose the protections of state bar oversight, ethical fee agreements, transparent billing, and malpractice insurance. Ultimately, clients represented by agencies rather than law firms miss out on the legal, financial, and ethical safeguards that come with true attorney-client relationships, as well as the educational benefit of working directly with an experienced, knowledgeable attorney.
Conclusion
Please note that this article is written from experience and does not apply to every agency or law firm. Rather, it is intended to inform the prospective employer about common dynamics and relationships in the H-2A and H-2B representation industry.
If you found this helpful, please read Part 2 of this article and follow The Bernard Firm PLC web page on social media.