Don't be Headstrong: Consult an Immigration Specialist on Employee Transfers

by Orlando Ortega-Medina

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

We 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. We cannot estimate how many times our firm has had to try and 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 lawyer than to see her take a chance on filing her own paperwork with the USCIS. The likelihood of failure is just too high.

Following is a list of five notable immigration horror stories that have come across our 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.

I. THE L-1 TRANSFERS THAT ALMOST DID NOT HAPPEN

The CEO of a UK Software company based in Manchester called me at the end of April. She had been trying since December 2006 to transfer three key employees to a U.S. subsidiary in the Southwestern United States. Two of these were British citizens, and one was a citizen of a country in Southeast Asia. This should have been a straightforward case.

The company'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 company did not know was that the application requirements and procedures for a NAFTA visa differ significantly from those applicable to the L-1 intracompany transferee visa. Although the partner had all the information 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 was 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 were able to send all three of the transferees to the United Embassy in London to have their passports stamped with their L-1A visas. Problem solved.

II. 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 the 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 a few consular denials, we 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 USCIS.)

III. MISSING THE H-1B BOAT

Toward 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 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 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 into the USCIS with a filing fee of $190.00. That was in January, and he still had not 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 current fiscal year would be reached on April 2, 2007 -- the very first day that the visa cap was slated to open. He wanted to know what would happen if his application was not approved before the cap was reached.

Before dealing 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 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. Besides all of this, USCIS regulations were clear that petitions that reached its mailroom prior to April 2, 2007 would be rejected. Thus, it was clear to us that USCIS would eventually reject the petition. When we gave the young man the bad news, he was quite skeptical. We suggested that he pull back the original petition, and re-file a corrected petition exactly on April 2, 2007. He told us 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 we had predicted and had returned it to the clinic. He asked us to take over the case. On April 2, 2007, we filed the corrected H-1B petition. Over 150,000 petitions arrived at USCIS on the same day, all of them vying 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.

IV. THE NAFTA REJECTION

On May 25, 2007, we received a telephone 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.

We reviewed the paperwork she had presented at the border, and found it to be quite wanting in substance as well as 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 in hand. Happily we received a telephone call from her that afternoon giving us the good news that she had been issued the 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.

V. 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 had acquired just short of four years experience in this field. He contacted the 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 we are quite proud of the cases we have successfully shepherded 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 experienced immigration lawyer. The savings in time, money and frustration is well worth the investment.

Copyright 2007, Ortega-Medina & Associates Ltd. All Rights Reserved. http://www.ortega-medina.com

About the Author
Orlando Ortega-Medina is lead counsel for the U.S. business immigration law firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex U.S. business immigration cases, and is frequently engaged by other counsel to troubleshoot visa denials.