Don’t Be Stubborn: Consult an Immigration Lawyer About Employee Transfers
We have often heard that when immigration attorneys recommend that laymen avoid filing their own immigration papers, financial interest is the only motivation. This is far from the truth. We cannot estimate how many times our firm has had to try to undo the damage done to a perfectly good case by an overconfident immigrant, human resources manager, or placement agency. Personally, I would rather lose a potential client to another attorney than see her take the risk of filing her own paperwork with USCIS. The probability of failure is too high.
Below is a list of five notable immigration horror stories that have crossed our desk since the beginning of the year. All of these sad situations could have been avoided if the parties had first consulted with an experienced immigration attorney.
THE L-1 TRANSFERS THAT ALMOST NEVER HAPPENED
The CEO of a Manchester-based UK software company called me at the end of April. She had been trying since December 2006 to transfer three key employees to a US subsidiary in the southwestern United States. Two of them were British citizens and one was a citizen of a South East Asian country. This should have been a simple case.
The company’s US partner attempted to handle the paperwork himself, having previously handled two NAFTA visas for a couple of Canadian professionals. What the company did not know was that the application requirements and procedures for a NAFTA visa differ significantly from those applicable to the intra-company transferee L-1 visa. Although the partner had all the information and documents he needed to process the case in January, he delayed the requests so he could investigate the correct L-1 procedures. It was the end of April and the partner had not yet made any progress on the requests.
I asked the executive director to send me the information and documents. Within three weeks of receiving the documents, we were able to send the three transferees to the US Embassy in London to have their passports stamped with their L-1A visas. Problem solved.
THE CONSULAR DENIAL
An artist agent/promoter was trying to bring a group of Peruvian folk musicians to the US for a series of music festivals. Surprisingly, he was able to properly prepare and file the required petition. He received the approval notice from USCIS within 45 days. When the musicians went to the US Consulate in Lima to pick up their visas, they were denied. The problem: The consular officer didn’t think the musicians had “enough ties to Peru,” even though they had lived their entire lives in Peru, their parents, wife, and children lived in Peru, and had jobs and businesses to return to. in Peru once the visas have expired.
Having previously dealt with quite a few consular denials, we contacted the US consular officer who had dealt with the musicians by phone, listed all of their objections, and reprocessed the visa applications. Within a week, the musicians received their visas and were on their way to California. (By the way, pre-approval of a visa application by USCIS does not guarantee visa issuance by the US Department of State; and pre-issuance of a visa by the US Consulate does not guarantee admission to the US by USCIS).
BOAT H-1B IS MISSING
Towards the end of February we received a call from an exasperated young man who had been offered a job at a medical clinic in Nevada as a medical physicist. After independent internet research, he determined that the clinic should file an H-1B petition on his behalf. The company, which had never applied for a foreign worker before, left the immigration details in his hands.
He studied the USCIS website, downloaded the forms, and sent them to the clinic. The clinic filled out the forms and submitted them to USCIS with a filing fee of $190.00. That was in January and he still hadn’t heard from USCIS. The source of his stress was the rumor that began circulating in February that the cap on H-1B visas for the current fiscal year would be reached on April 2, 2007, the first day the cap was scheduled to open. of visas. He wanted to know what would happen if his application was not approved before the cap was reached.
Before addressing your main concern, we asked you to fax us all the documents that the clinic had filed with USCIS. Our worst suspicions were confirmed by reviewing the documents. The forms had been filled out incorrectly, the forms that did not have to be filed had been filed with the correct forms, and the filing fee was incomplete. The prevailing wage for the position had not been determined and no employment status application had been filed with the Department of Labor. Furthermore, the clinic had not provided sufficient evidence about either the clinic or the position offered. On top of all this, USCIS regulations were clear that petitions arriving in their mail room before April 2, 2007 would be rejected. Therefore, it was clear to us that USCIS would eventually reject the petition. When we broke the bad news to the young man, he was quite skeptical. He suggested that he withdraw the original petition and refile a corrected petition exactly on April 2, 2007. He told us that he would think about it and call us back.
On March 14 we received another call from the young man. USCIS had rejected the petition as expected and returned it to the clinic. He asked us to take over the case. On April 2, 2007, we filed the amended H-1B petition. More than 150,000 petitions arrived at USCIS on the same day, all competing for the 65,000 available visas. Fortunately, our client’s H-1B visa petition was among those randomly selected for processing. He has since received his Notice of Approval.
THE REJECTION OF NAFTA
On May 25, 2007, we received a phone call from a woman who had been hired as a computer systems analyst by a new high-tech company in San Francisco. She had gotten the job through a recruitment company in Toronto. That same recruitment company had referred the candidate to a Canadian lawyer to prepare the application. This should have been a fairly routine affair, as the woman qualified for a TN-1 visa under the North American Free Trade Agreement (NAFTA). However, it turned out that the lawyer had limited experience in these matters. In his apparent ignorance, the attorney sent the woman to the US/Canadian border in Buffalo with a poorly prepared application package (lacking sufficient evidence of the woman’s qualifications) to apply for the visa before the date you actually planned to enter the country. USA. She was rejected.
We reviewed the paperwork that she had presented at the border and found it to be quite lacking in both substance and presentation. She asked us to take on the case and, within five days, we sent her to the pre-flight inspection checkpoint at Pearson International Airport with an expertly prepared application and her bags in her hand. We happily received a phone call from her that afternoon giving us the good news that she had been granted her TN-1 visa and was about to board her flight to San Francisco. We have received several referrals from this client in the last two months.
IT’S NEVER AS EASY AS THEY SAY
In early April of this year, our office was contacted by a gentleman who had been offered a high-paying job as a family counselor in the southern United States. Although he did not have a college degree, he had acquired just under four years of experience in this field. He contacted USCIS on his own and was told by an unidentified employee that all he had to do was fill out “an I-750,” file it at the airport, and then file an adjustment of status petition once he arrived. to the United States.
Excited by the news, the man returned to Canada, sold his house, quit his job (as did his wife), took his children out of school, and they all showed up at the airport with suitcases in hand. Of course, they were rejected. Reasons: 1.) I had followed the wrong procedure for a permanent work visa; 2.) did not qualify under any temporary work visa category as he did not have a college degree and did not have at least 5 years of experience in the relevant field.
Unfortunately, we could not do anything for this man, since he did not qualify for any type of visa. Although he had a good chance of qualifying for a NAFTA visa with one more year of experience, he had already quit his job and sold his house. The damage was already done.
Not all cases are salvageable, as the example above illustrates. But many can, and we are quite proud of the cases we have successfully brought to a successful disposition. Of course, it would be much better for all parties involved if, instead of trying to handle important immigration matters on their own, prospective immigrants or employers take the time to consult with an experienced immigration attorney. The savings in time, money and frustration are well worth the investment.