Legal Question in Immigration Law in New York

Re: Forced to hire specific lawyer

Most of the work in H1-B visa matters is done on behalf of the employer, as is, for example, the initial petition to employ a foreign national. Employees are entitled to be represented by a separate counsel in the consular visa process or change of status portion of the process, if they so choose, but in many cases they often go along with the choice their employer had made. The process is very much employer-driven and therefore employers have significant leverage. You do not have to accept the counsel your employer wants to assist you with H1-B visa, but if this is an important point to your employer, its management may decide they'd rather not sponsor you for this visa if you don't play along. Less expensive immigration counsel or a firm unfamiliar with the employer's business may end up costing more to your employer in the long run through errors it may potentially make.

Re: Forced to hire specific lawyer

Two other considerations I did not mention in my earlier reply:

1. The amount of legal fees you would pay to the immigration counsel may not, if deducted from your salary, be below the prevailing wage as per labor certification regs.

2. If there is an actual conflict of interest arising between you and the employer in the process of applying for an H1-B visa, you cannot be adequately represented by counsel which owes loyalty or reports to your employer regardless of who paid such counsel.

Having said that, again, employers generally manage the process, however unfair it may be to employees, especially if it is the employee who pays for legal services. The two legal considerations outlined above may, however, moderate the employers' influence somewhat, but even then it does not take much for an employer to decide that it's simply not worth sponsoring a particular foreign employee unless it is a critical position to fill.