Notes

AVOID BEING Headstrong - Consult an Immigration Lawyer on Employee Transfers
We have often heard it suggested that when immigration lawyers advise that laypersons avoid filing their very own immigration paperwork, financial self-interest may be the only motivation. That is not very true. We cannot estimate how many times our firm has already established to try and undo the damage done to a perfectly good case by an overconfident immigrant, recruiting manager, or placement agency. Personally, I'd rather lose a potential client to some other lawyer than to see her take a chance on filing her own paperwork with the USCIS. The likelihood of failure is simply too high.

Following is a set of five notable immigration horror stories which have come across our desk since the beginning of the year. Many of these sad situations could have been avoided if the parties could have first consulted having an experienced immigration lawyer.

THE L-1 TRANSFERS THAT HARDLY EVER HAPPENED

The CEO of a UK Software company based in Manchester called me by the end of April. She had been trying since December 2006 to transfer three key employees to a U.S. subsidiary in the Southwestern USA. Two of these were British citizens, and something was a citizen of a country in Southeast Asia. Immigration Lawyers Staffordshire will have been a straightforward case.

The business's U.S. partner attempted to handle the paperwork himself, since he'd previously handled two NAFTA visas for a pair of Canadian professionals. What the business did not know was that the application form requirements and procedures for a NAFTA visa differ significantly from those applicable to the L-1 intracompany transferee visa. Even though partner had all the details and documents he needed to process the case in January, he held up the petitions so that he could research the correct L-1 procedures. It had been late April, and the partner still had not moved forward on the petitions.

I asked the CEO to courier me the information and documents. Within three weeks of receiving the documents, we could actually send all three of the transferees to the United Embassy in London to have their passports stamped with their L-1A visas. Problem solved.

THE CONSULAR DENIAL

An artists agent/promoter was trying to bring several Peruvian folk musicians to the U.S. for a series of music festivals. Amazingly, he could correctly prepare and file the mandatory petition. He received the approval notice from the USCIS within 45 days. When the musicians visited 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", even though they had lived all their lives in Peru, their parents, wives and children lived in Peru, plus they had jobs and businesses to come back to in Peru once the visas expired.

Having previously handled several consular denials, we got on the telephone with the U.S. consular official who had handled the musicians, made a listing of all his objections, and reprocessed the visa applications. Inside 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 will not guarantee admission to the U.S. by USCIS.)

MISSING THE H-1B BOAT

Toward the finish of February we received a call from an exasperated young man who had been offered employment at a medical clinic in Nevada 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 business, which had never petitioned for an alien worker before, left the immigration 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 in to the USCIS with a filing fee of $190.00. That has been in January, and he still hadn't heard anything from the USCIS. The source of his stress was the rumour that began circulating in February that the H-1B cap for the existing fiscal year would be reached on April 2, 2007 -- the 1st day that the visa cap was slated to open. He wished to know very well what would happen if his application was not approved before the cap was reached.

Before coping with his primary concern, we asked him to fax us all the documents the clinic had filed with the USCIS. Our worst suspicions were confirmed, upon overview of the documents. The forms have been done incorrectly, forms that did not have to be filed have been filed along with the correct forms, and the filing fee was incomplete. The prevailing wage for the position was not determined, no labor condition application had been filed with the Department of Labor. Additionally, the clinic hadn't provided enough evidence regarding either the clinic or the position offered. Besides all this, USCIS regulations were clear that petitions that reached its mailroom ahead of April 2, 2007 will be rejected. Thus, it had been clear to us that USCIS would eventually reject the petition. Whenever we gave the son the bad news, he was quite skeptical. We suggested he pull back the original petition, and re-file a corrected petition exactly on April 2, 2007. He told us he'd think about it and call us back.

On March 14, we received another call from the son. USCIS had rejected the petition as we had predicted and had returned it to the clinic. He asked us to dominate the case. On April 2, 2007, we filed the corrected H-1B petition. Over 150,000 petitions arrived at USCIS on a single day, all of them vying for the 65,000 available visas. Fortunately, our client's H-1B visa petition was the type of randomly selected for processing. He has since received his Notice of Approval.

THE NAFTA REJECTION

ON, MAY 25, 2007, we received a mobile 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 work through a recruiting firm in Toronto. That same recruiting firm had referred the candidate to a Canadian lawyer to get ready the application. This will have been a reasonably routine matter, because the woman qualified for a TN-1 visa under the North American Free Trade Agreement (NAFTA). However, it proved that the lawyer had limited experience in these matters. In his apparent ignorance, the lawyer sent the girl 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 before the date she actually planned to enter america. She was rejected.

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

IT'S NOT AS EASY BECAUSE THEY TELL YOU

In early April of the year, our office was contacted by a gentleman who was simply offered a high-paying job as a family counselor in the Southern USA. Although he previously no University Degree, he previously acquired just lacking four years experience in this field. He contacted the USCIS on his own and was told by some unnamed clerk that all he had a need 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 headlines, 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 at hand. Of course, they were turned away. Reasons: 1.) he had followed the wrong process of a permanent work visa; 2.) he didn't qualify under any temporary work visa category since he didn't hold a university degree and didn't have at the very least 5 years experience in the relevant area.

Unfortunately, there is nothing we could do for this gentleman, since he didn't qualify for any sort of visa. Even though he stood an excellent 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 we have been quite proud of the cases we've successfully shepherded to a satisfactory disposition. Of course, it could be much better for several parties concerned if, rather than attempting to handle important immigration matters by themselves, potential immigrants or employers take time to consult with an experienced immigration lawyer. The savings with time, money and frustration is well worth the investment.
My Website: http://immigrationsolicitorsstaffordshire.co.uk