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Author: Orlando Ortega-Medina, Esq.

(Originally published in the Canadian HR Reporter, June 19, 2000)

Description: Five cases selected at random from our files. These cases perfectly illustrate some of the dangers inherent in failing to consult with an immigration professional regarding employment of foreign nationals in the United States.

I have often heard it suggested that when immigration lawyers recommend that laypersons avoid filing their own immigration paperwork, financial self-interest is the only motivation. This is far from the truth. I cannot estimate how many times I have had to try and undo the damage done to a perfectly good case by an overconfident immigrant, manager of human resources, or placement agency. Personally, I would rather lose a potential client to another lawyer than to see her take a chance on filing her own paperwork with USCIS. The likelihood of failure is just too high.

Following is a list of five notable immigration horror stories that have come across my desk since the beginning of the year. All of these sad situations could have been avoided if the parties would have first consulted with an experienced immigration lawyer.

Missing the H-1B Boat

Toward the end of February I received a call from an exasperated young man who had been offered a job at a medical clinic in Arizona as a medical physicist. After some independent research on the internet, he had determined that the clinic should file an H-1B petition on his behalf. The company, which had never petitioned for an alien worker before, left the visa details up to him.

He studied the USCIS website, downloaded the forms, and sent them to the clinic. The clinic filled out the forms and sent them into USCIS with a filing fee of $110.00. That was in January, and he still had not heard anything from USCIS. The source of his stress was the rumor that began circulating in February that the H-1B cap for fiscal year 2000 was about to be reached. He wanted to know what would happen if his application was not approved before the cap was reached.

Before dealing with his primary concern, I asked him to fax me all the documents the clinic had filed with USCIS. My worst suspicions were confirmed, upon review of the documents. The forms had been filled out incorrectly, forms that did not have to be filed had been filed along with the correct forms, and the filing fee was incomplete. The prevailing wage for the position had not been determined, and no labor condition application had been filed with the Department of Labor. Additionally, the clinic had not provided enough evidence regarding either the clinic or the position offered. It was clear to me that the petition would be rejected. When I gave the young man the bad news, he was skeptical. I suggested we file a corrected petition, and he told me he'd call me back.

On March 14, I received another call from the young man. The petition had been rejected as I had predicted and was returned to the clinic. He asked me to take over the case. On March 21, the H-1B cap was reached. It was too late to file for fiscal year 2000. Fortunately, the company was willing to hold open the position for him until the start of fiscal year 2001, which begins on October 1, 2000. I have filed a corrected H-1B petition with the USCIS, and have begun work on a green-card petition for him as well.

The NAFTA Rejection

On April 4, I received a call from a woman who had been hired as a computer systems analyst by a high-tech startup company in San Francisco. She had landed the job through a recruiting firm in Toronto. That same recruiting firm had referred the candidate to a Canadian lawyer to prepare the application. This should have been a fairly routine matter, since 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 lawyer sent the woman to the U.S./Canadian border at Buffalo with a poorly prepared application package (which lacked sufficient evidence of the woman's qualifications) to apply for the visa in advance of the date she actually planned to enter the United States. She was rejected.

I reviewed the paperwork she had presented at the border, and found it to be quite wanting in substance as well as presentation. She asked me to take over the case, and in a matter of five days, sent her off to the pre-flight inspection post at Pearson International Airport with an expertly prepared application, and her bags in hand. Happily I received a call from her that afternoon giving me the good news that she had been issued the TN-1 visa and was about to board her flight to San Francisco. I have received several referrals from this client in the last two months.

The L-1 Transfer That Never Happened

The CEO of a Canadian Software company in Toronto called me at the end of April. She had been trying since December 1999 to transfer three key employees to a U.S. subsidiary in the Southwestern United States. Two of these were citizens of Canada, and one was a citizen of a country in Southeast Asia. This also should have been a straightforward case. The company hired a lawyer in the U.S. to handle the transfer petitions. What the company did not know was that the lawyer was more familiar with the processing of H-1B visas than with the processing of L-1 intracompany transferee visas. Although he had all the information and documents he needed to process the case in January, the lawyer held up the petitions so that he could research the correct L-1 procedures. It was late April, and the lawyer still had not moved on the petitions.

I asked the CEO to courier me the information and documents. Within one week of receiving the documents, I was able to send the two Canadians to Pearson International Airport for processing and approval of their L-1 visas, and was able to file the remaining petition with USCIS for approval. Problem solved.

The Consular Denial

An artists agent/promoter was trying to bring a group of Peruvian folk musicians to the U.S. for a series of music festivals. Amazingly, he was able to correctly prepare and file the required petition. He received the approval notice from USCIS within 45 days. When the musicians went to the U.S. Consulate in Lima to pick up their visas, they were denied. The problem: The consular official didn't believe the musicians had "sufficient ties to Peru", despite the fact they had lived all their lives in Peru, their parents, wives and children lived in Peru, and they had jobs and businesses to return to in Peru once the visas expired.

Having previously dealt with quite of few consular denials, I got on the telephone with the U.S. consular official who had dealt with the musicians, made a list of all his objections, and reprocessed the visa applications. Within a week, the musicians were issued their visas, and were on their way to California. (Incidentally, prior approval of a visa petition by USCIS does not guarantee issuance of the visa by the U.S. State Department; and prior issuance of a visa by the U.S. Consulate does not guarantee admission to the U.S. by the USCIS.)

It's Never as Easy as They Tell You

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 had no University Degree, he'd acquired just short of four years experience in this field. He contacted USCIS on his own and was told by some unnamed clerk that all he needed to do was to fill out "an I-750", present it at the airport, then file a petition for an adjustment of status once he arrived in the United States.

Thrilled at the news, the gentleman returned to Canada, sold his home, quit his job (as did his wife) took his children out of school, and they all showed up at the airport, bags in hand. Of course, they were turned away. Reasons: 1.) he had followed the wrong procedure for a permanent work visa; 2.) he didn't qualify under any temporary work visa category since he did not hold a university degree and did not have at least 5 years experience in the relevant area.

Unfortunately, there was nothing we could do for this gentleman, since he did not qualify for any type of visa. Even though he stood a good shot at qualifying for a visa under NAFTA with one more year of experience, he had already quit his job and sold his house. The damage was done.

Not every case can be salvaged, as the above example illustrates. But many can, and I am quite proud of the cases we have been able to successfully shepherd to a satisfactory disposition. Of course, it would be much better for all parties concerned if, instead of trying to handle important immigration matters on their own, potential immigrants or employers take the time to consult with an immigration professional. The savings in time, money and frustration is well worth the investment.