The question has two answers, “no,” and “maybe.”

No, you do not need a lawyer for petitions and applications filed by Duke. Duke does all of its own employment-based immigration work "in-house." We file our own petitions and we work directly with the Department of Homeland Security (DHS) and other government offices. We have our own outside immigration counsel for consultation as necessary.
An authorized person from the International Office must approve and sign any labor certification, preference petition, or other immigration document for which Duke is the employer or sponsor. We do not authorize outside lawyers to file petitions and applications on behalf of Duke. If a lawyer claims to represent Duke in any immigration capacity, please notify the International Office immediately. Such lawyers may be confused about their authority to act or speak for Duke, and that confusion could cost money and time in a Duke immigration process. On very rare occasions Duke authorizes lawyers specifically employed by Duke University through the International Office and the Office of University Counsel to represent Duke in immigration matters.

Maybe, you would want to hire a personal immigration lawyer to represent your interests in immigration matters relating to forms and proceedings that apply only to you, rather than to Duke.
Following are a few examples of the kinds of forms Duke files and the kinds of forms you or your lawyer might file.

Duke sponsored documents that Duke will file. Your immigration lawyer cannot file these documents for Duke.

• Form I-129B for H-1B, H-3, O-1, TN, or similar employment-based status.
• Form I-140 for employment-based Lawful Permanent Resident (LPR) status. [Note exceptions below.]
• Form I-907 for expedited processing of a Duke petition or application.
• Form I-824 for reissuance or consular notification of a Duke petition or application.
• "212(e)" waiver of the J-1 two-year home country physical presence requirement. Duke must file the request for a recommendation letter if Duke is the interested private party. Examples: 1) Duke must file the request for a Health and Human Services (HHS) waiver for a physician based on research at Duke; 2) Duke must file the request for a Department of Education waiver for a professor based on a faculty appointment at Duke. Note other waiver avenues below.

Personal filings that belong to you. You or your lawyer may file these petitions and applications.

• Form I-129F for the fiancé, fiancée, or spouse of a United States citizen.
• Form I-130 for family-based LPR.
• Form I-131 for Advance Parole to allow you to travel while certain immigration processes are pending.
• Form I-140 for employment based LPR in the "Extraordinary Ability" or "National Interest Waiver" categories. Note that these petitions can be filed in two ways. If Duke is the "petitioner" in item 1 of the form, then Duke must file the form. If you are the "petitioner" in item 1, then you or your lawyer may file the form.
• Form I-765 for work permission. In almost all cases the I-765 filing belongs entirely to you, and Duke is not involved in those filings. Two exceptions exist. For those in F-1 status requesting Optional Practical Training (OPT) or “economic hardship” employment, Duke must provide supporting documentation and make appropriate annotations in the SEVIS data base as part of the I-765 filing. For those applying for J-2 work permission (http://www.internationaloffice.duke.edu/Forms/J-2WorkAuthorization.htm), Duke can provide assistance to the families of our J-1 students and scholars.
• "212(e)" waiver of the J-1 two-year home country physical presence requirement if you are filing based on "no objection" from your home government, persecution, hardship, and similar grounds that relate only to you. Examples: 1) you must request the "no objection" statement from your government; 2) you must prove persecution or hardship.

There are many other forms that you may file for yourself or your family.

It can be confusing. Let’s look at some examples.

• Legally the H-1B petition (Form I-129) “belongs” to the U.S. employer. The employer is asking the federal government to allow it, the employer, to hire an alien and is in most cases, though not all, specifying exactly which alien – you, for example. The alien employee does not have the right to demand H-1B sponsorship and does not have standing to file an H-1B petition for himself/herself, as he/she is not and cannot be a U.S. employer.
• The change of status application or visa application for the H-1B belongs to the employee as a person. Applicants for change of status must show, for example, that they are currently in status and thus eligible to change status. Applicants for visas must show that they do not have a negative immigration history or criminal past, and are thus eligible for the visa.
• The same “U.S. employer” theory applies to employment-based LPR petitions. In most cases, the U.S. employer is asking the federal government, via a Labor Certification and an I-140 petition, to allow it to “import” an alien permanently into the U.S. because there are no qualified U.S. workers to do the job. There are three employment-based exceptions in which the alien is not required to have a U.S. employer, and thus, does have standing to file his/her own petition. Those employment-based exceptions are: 1) persons of extraordinary ability, 2) persons whose work is in the national interest, and 3) persons who are making a major investment in a U.S. business that will have a certain number of U.S. workers.
• The application for LPR status "belongs" to the alien, regardless of whether the employer or the alien is the petitioner. The application is a process to determine that the person is eligible for LPR status. Applicants may not be eligible if they have been convicted of crimes, have previously violated certain immigration laws, have contagious diseases, and other reasons. Note that these eligibility criteria relate directly to the person, not the employer or family member who may have filed the petition. If you choose to file for "adjustment" in the U.S. the forms related to that filing belong to you. Similarly, if you choose to process for the LPR at a consular post abroad, that process belongs to you.
• Some employers choose to use outside lawyers for their immigration work and may be willing to use a lawyer that you identify or pay. That decision to use outside counsel belongs to the employer. Even if you identify and pay for the lawyer, the lawyer must represent the employer for those petitions and applications that belong to the employer. When a lawyer “represents” two parties that may have some similar and some different goals, such as you and your employer, the lawyer must consider the “conflict of interest” inherent in such an arrangement. If you want one thing and your employer wants another, do you get to decide because you are paying the lawyer, or does the employer get to decide because he/she is the legal petitioner and is signing the petition? In any situation where you are paying the lawyer to help your employer with your case, you need to have a discussion with the lawyer and your employer on what conflict of interest issues might arise and how they will be handled. Regardless of how much you pay your lawyer, he/she cannot force the employer to sign a petition for you, and the lawyer cannot move forward on a petition unless the employer is willing to sign and to provide appropriate supporting documents.

We cannot answer that question, but we can give you some items to consider.

• You are permitted, but not required, under immigration law or regulations to have a lawyer prepare your paperwork. You have the right to do it yourself or hire a lawyer in the same way that you have the right to file your own tax returns or have a professional accountant do it.
• The DHS web site (http://www.uscis.gov/portal/site/uscis) provides a great deal of information and copies of DHS forms and instructions. Look along the top banner for information on “Immigration Forms” and along the left column for information on “Permanent Residence” or “Visit the U.S.”
• All of the information and the multitude of forms can be confusing, the titles of the forms can be misleading, and the immigration laws and regulations are complex and ever changing. It is not as easy as it seems to select the right form, fill it out correctly, and file it with all of the accompanying documents at the proper DHS office.
• A lawyer can help you understand the benefits available to you, organize and file the right paperwork, and be present with you at DHS interviews in most cases.

We have seen that some immigration work belongs to Duke and some belongs to you.
Your own personal lawyer can represent your interests and should be willing and able to:

• serve as your advocate, appeal an unfavorable decision by DHS, and go to court, if necessary, to argue in your favor;
• advise you on the immigration options available to you;
• help you make decisions about what is best for you in your circumstances;
• make sure that the correct forms are filled out in the proper way and are submitted in a timely manner to the appropriate government offices;
• refer you to other qualified lawyers in immigration law or in other specialized fields such as family law, criminal law, tax law, and business law, when necessary.

There are certain things that a lawyer cannot do for you.

A lawyer cannot:

• file papers for you that are not true;
• legally get you an immigration status for which you do not qualify;
• change your "priority date," or put you ahead of someone else in the waiting line for an immigrant visa or similar immigration benefit.

The American Immigration Law Foundation (AILF), a nonprofit organization, provides excellent information on immigration lawyers and their services on its web site.

In North Carolina we are lucky to have a very active and informed American Immigration Lawyers Association (AILA) chapter. A few established lawyers and firms have been providing immigration services for many years and a growing number of immigration lawyers newer to the field are opening practices in the area.

• Many immigration lawyers list their businesses in the “Yellow Pages” of the telephone book. Look under "Attorneys-Immigration and Naturalization Law." Use the local telephone books or use one of the many web-based “yellow pages” directories.
• The International Office maintains a brief list of immigration lawyers that includes a few long-established individuals and firms and some lawyers working in specialized areas of immigration law who have worked with Duke faculty and staff in the past and who are also members of AILA. AILA provides a nationwide referral service on its web site.

Be a careful consumer. Before choosing a lawyer and signing a contract for services, we recommend that you consult the AILA list or ask the lawyer for references from colleagues at Duke or other academic institutions. If a lawyer "guarantees" you a visa or a green card, get a second opinion from another lawyer. Only the U.S. government can grant immigration benefits. Lawyers do not have the power to grant immigration benefits, so they cannot guarantee you a specific result. An immigration lawyer can help you request benefits to which you are entitled in a way that is likely to be successful and can argue in your favor in interactions with government offices.

Service from “legal aid” groups. Certain religious and social services organizations maintain legal aid components dedicated to helping people who cannot afford immigration lawyers. These organizations can apply to DHS to be recognized for this purpose and to have their staff members recognized as authorized agents so that they can provide immigration services to you. It is reasonable for you to ask if the person who is helping you is a lawyer who is “licensed” or “admitted to the bar,” or is an authorized agent working for an organization with standing to offer these legal services to you.

A caution about “notarios.” You have the right to ask anyone to help you with your personal business affairs, such as immigration, but that person may not be an expert or may even be trying to cheat you. The term “notario” or “notary” or a similar term has different meanings in different languages and legal systems. In the U.S. a notario or notary is not authorized to practice immigration law. Such people may take your money and give you poor service or no service or make such a mess of your case that even a very good immigration lawyer may not be able to salvage it. In some cases these people are supplying you with fraudulent documents so that you have no status at all. If the person working on your immigration case is not a lawyer or not an authorized representative, be worried and ask more questions, or thank them politely and look for better service from qualified sources.

Ask about costs and fees. Most reputable lawyers will be willing to discuss costs and give you a rate schedule in advance of your signing a contract. Here are some issues to consider and items to look for in comparing costs:

Billing Plans. Some lawyers bill by the hour. Others bill by the kind of work done, such as a set rate to file an application for adjustment to lawful permanent resident status with accompanying documents and forms. Others bill by the kind of form filed, such as charging one fee for filing the form for adjustment of status and different fees for filing the accompanying requests for work and travel permission.

Filing Fees and Other Fees. Some lawyers include filing fees in their own fee structures. Others add the cost of filing fees to your bill. DHS generally charges filing fees for all petitions and applications.

Mailing Charges. Some lawyers include express mail and other mail costs in their own fee structures. Others may add the cost of express mail to your bill.

Consultations and Calls. Some lawyers include the costs of ongoing consultation in a set fee. Others will bill for each time they talk with you on the telephone, make a telephone call in your behalf, or take any other action on your case.

Additional Services. If DHS asks for additional information or if the petition or application is denied, the lawyer may charge an additional fee to prepare and submit that information or to file an appeal of a denial.

Failure to Pay. Lawyers want to succeed in getting you the immigration benefits you want, and will work with you to set up payment schedules and agreements. If you are in the middle of an immigration process and you fail to pay the lawyer per your agreement, the lawyer has the right to stop work on your case, even if that would have a negative effect on your immigration process.

Agreements and Contracts. Be sure you and your lawyer understand clearly what you want the lawyer to do, what your obligations are regarding providing necessary documents, exactly how the fees are structured, and how and when you are expected to pay for services. Many lawyers will ask you to sign an agreement or contract with the details spelled out. Read that document carefully and ask questions about anything you do not understand.

Immigration law is a "federal" practice and it is primarily "administrative" law. That means that the laws and regulations are the same across the nation, and that most of the work is managed by civil servants, not by judges. For example, a lawyer in North Carolina can help you or a relative file a B-2 extension application in Maine, Florida, Alaska, or Hawaii. Most immigration work is handled at one of five DHS "Service Centers" spread across the U.S., and each service center may have its own preferred ways of preparing and submitting cases. Service Center filing information is public and usually available on the internet, but immigration lawyers should be aware of regional differences in the rules and filing procedures. In very complex cases that go beyond the administrative level into federal court, there are some variations of interpretation of the law in the different federal court jurisdictions. Immigration lawyers who take cases to the federal courts should be well aware of these variations and how they might affect your case. They should be admitted to the bar, licensed, or otherwise authorized to bring your case to court in a particular area if necessary.
Some people choose to work with a local lawyer so that they can easily have face-to-face meetings. Others choose to work with a lawyer in a geographic location to which they plan to move. Still others select a lawyer based on area of expertise.

Examples:

• A Duke professor who is marrying a U.S. citizen who will come to live in Durham will often find it easier to work with a local lawyer in the Triangle.
• A Duke research associate or faculty member who has been offered a job in another state may want to work with a lawyer in that state for transitional visa and status issues and to work on the LPR ("green card") process after the researcher has settled in the new job.
• A Duke physician who is completing residency training and is subject to the J-1 two-year home residence requirement may want to work with someone who has recognized expertise in getting waivers in this very specialized area, regardless of the physician’s or the lawyer’s location.

Your immigration lawyer works for you. The relationship among the client, the lawyer, and the government differs in different countries. In the U.S., immigration lawyers must work with the DHS to accomplish your goals, but they do not work for the DHS. Immigration lawyers are required to keep confidential the information you share and to provide you with the best possible service. For example, if you have violated your visa status, it is the lawyer's job to help you return to lawful status if that is possible and if that is what you want. It is not the job of the lawyer to report you to the DHS, regardless of whether or not you decide to hire that lawyer to represent you.
Most of your discussions with your lawyer are protected by “attorney-client privilege.” That is the concept in U.S. law that makes your discussions confidential so that you can give your lawyer the pertinent information he/she needs without fearing that other parties, such as the government, will have access to that information. Since the events of 9/11, Congress has passed some laws that affect attorney-client privilege as it relates to immigration. If you have any questions about this legal concept or how it will affect your conversations with your lawyer, ask your lawyer to explain this to you in more detail.
Give accurate and complete information. Most lawyers use an "intake" or "data collection" form to collect the information they will need to represent your interests. Answer those questions truthfully and completely. Tell the immigration lawyer what your real immigration goals are. Discuss short-term and long-term goals. Sometimes a short-term solution can destroy your long-term options. Your lawyer needs to know "the whole story" in order to do a good job for you.
Tell your lawyer the truth, even if you think it might hurt your case. Your lawyer must know the facts to do a good job for you. Also remember that the U.S. legal system expects people to tell the truth and punishes people who make false statements or provide false documents to obtain benefits. In some countries the problems created by making a false statement or presenting false documents can be solved by giving up the benefit or paying a fine or fee or having someone important "make the problem go away." U.S. law considers using false statements and false documents a serious offense that cannot be "fixed." In immigration law, the punishment can include imprisonment and deportation from the U.S. DHS can put your name on a list that notifies every port-of-entry to turn you away if you try to enter the U.S. This kind of exclusion can last for years or forever. Your lawyer needs to have all of the facts to help you reach your goal.

When appropriate, we are pleased to work with your lawyer, and we encourage you to have him or her contact us so that we can coordinate our efforts. Before we can release any information to your lawyer or to anyone else, we first need your written permission to do so. You will need to complete an "Authorization to Release Information" form.

Contact the International Office by sending a message to VISAHELP@mc.duke.edu or call the office at 681-8472.