I-485 Processing After Divorce

[Ann Ruben]

Oops! Sorry, Snathan. I was mistaken.

Ann

[up_guy]

Though spouse filed G28 as dependent, but client and attorney relationship exist either between employer and attorney or between principal derivative and attorney. I think attorney needs to do want his client is asking for/best interest of the party who hired and paid the attorney. If matter is in divorce then attorney needs to do what is necessary for his client who paid him fees, but not to the client's spouse who is getting divorced.
I did not understand how will it be an ethical violation. When employer ask attorney to revoke an approved I-140 that time attorney is not obligated to ask employees permission so why in case of divorce attorney need spouse permission

Originally Posted by aruben@srrlaw.us

Absolutely not. Snathan's sister is the only person authorized to withdraw her own I-485. If she has signed an attorney entry of appearance (form G-28), then the attorney could make a request to withdraw on her behalf, but to do so without express written permission from her would be a very serious ethical violation.

[snathan]

Originally Posted by up_guy

Though spouse filed G28 as dependent, but client and attorney relationship exist either between employer and attorney or between principal derivative and attorney. I think attorney needs to do want his client is asking for/best interest of the party who hired and paid the attorney. If matter is in divorce then attorney needs to do what is necessary for his client who paid him fees, but not to the client's spouse who is getting divorced.
I did not understand how will it be an ethical violation. When employer ask attorney to revoke an approved I-140 that time attorney is not obligated to ask employees permission so why in case of divorce attorney need spouse permission

Normally the attorney wont write to USCIS to revoke the I-140 if they represent both the employee and employer. Employer's simple letter with relevant information to USCIS is enough to revoke the I-140.

The spouse also signs agreement with the attorney to represent her. So no matter who is paying...the attorney obligated to get the consent with the spouse.

[Ann Ruben]

Snathan is correct. It does not matter who is paying the fee, or which party has the more substantial relationship with the lawyer. When an attorney files a G-28 for an individual, an attorney/client relationship is established and the attorney has a is prohibited from acting against the clients wishes or interest.

[up_guy]

Sanathan, Arunben

I respect your opinion, but let me explain you few incidents that does not fit this argument or confuse me-
1)I was being represented by my employer paid attorney, though I had signed G28 with him, but the attorney will not even talk to me, will not do what I want him to do, he will not share any documents related to my immigration file including copies of labor and I-140 etc.

2)In many cases my own attorney told me if employer will ask to revoke labor and I-140 then he will have to do so as they are retainer by the employer.
Normally attorney has a retainer agreement in addition to G28, I think they are bound to be loyal to the party who had signed a retainer agreement. Employee and spouse are just beneficiaries and g28 is a USCIS requirement.

I respect your feedback also I think that legal system and attorneys change interpretation on case by case basis.

Regards

[snathan]

Originally Posted by up_guy

Sanathan, Arunben

I respect your opinion, but let me explain you few incidents that does not fit this argument or confuse me-
1)I was being represented by my employer paid attorney, though I had signed G28 with him, but the attorney will not even talk to me, will not do what I want him to do, he will not share any documents related to my immigration file including copies of labor and I-140 etc.

2)In many cases my own attorney told me if employer will ask to revoke labor and I-140 then he will have to do so as they are retainer by the employer.
Normally attorney has a retainer agreement in addition to G28, I think they are bound to be loyal to the party who had signed a retainer agreement. Employee and spouse are just beneficiaries and g28 is a USCIS requirement.

I respect your feedback also I think that legal system and attorneys change interpretation on case by case basis.

Regards

I-140 and PERM are company's property. Only I-485 onwards is your's. So dont expect the attorney to give copy of the PERM or I-140. You need to get it from your employer only.

If your attorney is ready to revoke your I-140, then he is having problem. You need to educate him that he is representing you as well or change him. He can not incline one side when he is representing two party and there is conflict of interest.

[Ann Ruben]

Even though an employer pays the attorney and may have a long standing professional relationship with the attorney, if the attorney enters an appearance on behalf of an employee and/or provides legal advice to the employee, an attorney-client relationship between the attorney and the employee exists and the attorney has an equal ethical obligation to both the employer and the employee. So, in up-guy's situation, the attorney's refusal to share documents including copies of the I-140 and LC constitutes an ethical violation which if reported to the state disciplinary authorities would most likely result in sanctions against the attorney.

[chinusa]

Originally Posted by aruben@srrlaw.us

Until the divorce is final, your sister's status as an AOS applicant remains unchanged. She is entitled to her EAD, and if PD becomes current, she is entitled to be granted GC. A legal separation has no impact on her immigration situation.

Dear Ms. Ruben, does the divorce automatically invalidate a derivative's I-485 that is pending, or the derivative is still in AOS until his/her I485 is adjudicated (denied most likely)? In other words, is the derivative immediately out of status when the divorce is final.

There is a case on this web site http://www.oltarsh.com/blog/?p=51, I wonder if it applies to the case I just described:
"The Court of Appeals reversed the Immigration Service and the Board of Immigration Appeals saying that the applicant cannot be foreclosed from adjusting status because the application had been initially valid, and should not automatically become invalid because the marriage ended, the law does not require the removal of an immigrant whose marriage ends in divorce while the application for adjustment of status languishes in the agency’s file cabinet."


Another question: What options are available to the divorced derivative to stay legally in the country? For example, can s/he marry someone with a pending I-485 or I-130 then submit another I-485 or I-130 of her/his own as a derivative beneficiary again? What about marrying a U.S. citizen? In either scenario, does accrued unlawful presence matter? Thanks very much for your help.