Working With Immigration Clients

Michael R. Lied
Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
Peoria, IL 61602-1350
Telephone: (309) 672-1483
Facsimile: (309) 672-1568
Email: mrl@h2law.com
© 2008

Some background is helpful to understand what follows. First, as a matter of nomenclature, people commonly refer to a "visa" when talking about immigration matters. Technically, the United States Citizenship & Immigration Services (USCIS) approves a particular nonimmigrant or immigrant "status." The United States Department of State (DOS) actually issues the "visa," which is an electronic file incorporating a photograph and security features, which is placed in the individual's passport. This article will use the term "visa" without making the technical distinction between "status" and the actual "visa" in the passport.

United States law assumes that all individuals coming to the United States are intending immigrants, but the immigration system makes distinctions between nonimmigrant and immigrant visas. In many cases, in order to qualify for a nonimmigrant visa, the applicant must establish "nonimmigrant intent;" that is, he retains significant ties to his home country and intends to depart the United States upon expiration of his authorized period of admission into the United States. A few nonimmigrant visas allow an individual to have both "nonimmigrant" and "immigrant" intention simultaneously. Examples include the H-1B and L-1 visas which are discussed below. However, in most cases, if an individual has expressed immigrant intent, for example, by filing a prior application for an immigrant visa, it may be very difficult to obtain a nonimmigrant visa because of the lack of nonimmigrant intent.

In some situations an actual visa is not required. For example, in many cases, Canadians may enter the United States without a visa, although USCIS must still inspect and admit them. Individuals from a number of countries, where there is low visa fraud, may be entitled to enter the United States for up to 90 days under the "visa waiver" program. Entering on a visa waiver carries certain additional consequences discussed below.

Canadians and Mexicans have visa options slightly different than individuals from other countries under the North American Free Trade Agreement.

Many nonimmigrant visas do not allow employment in the United States. A few do. It is rare that a derivative family member of a nonimmigrant visa holder will be given work authorization.

Most nonimmigrant visas are characterized by a letter designation. At present, there are visas bearing letters all the way from A to U. Nonimmigrant visas which are commonly encountered include B-1/B-2 (temporary visitor for business or pleasure, tourist); F, M, J, H-3 (students or trainees), business related visas, including H-1 or H-2 (temporary worker); L-1 (intracompany transferee); E-1 or E-2 (treaty trader or investor); O (individuals with extraordinary ability or extraordinary achievement); P (athletes and entertainers); Q (participants in international cultural exchange program); and R (religious workers). There are also family related visas, including K-1 (fiancée), K-3 (spouse of a United States citizen) and V (spouse/child of lawful permanent resident).

In comparison, permanent residency is usually obtained (1) through an existing family relationship-a close family member who is a United States citizen or permanent resident-or (2) through an employment offer. In most cases, the most distant family relationship that will confer immigration benefits is being a brother or sister of a United States citizen.

In some rare situations, individuals from certain countries may win the so-called "visa lottery," which may result in an award of permanent resident status. Additionally, some individuals prepared to invest significant sums of money in a business, which creates at least ten United States jobs, may seek permanent residence. Unusual routes to permanent residence include claims of political asylum, persecution, or being a beneficiary of a special program based on political considerations or adverse conditions in the individual's home country.

1. Prior to your first meeting with a new client on an immigration matter, what preliminary information and research do you want to obtain?

a. Why is this information important?

b. How will this information help you when meeting with the client?

ANSWER: Ideally, we like to find out whether it is a business versus family immigration case. We also want to know whether the individual is seeking a nonimmigrant or immigrant visa. We also need to identify all persons who are affected by the visa application, including family members, and if it is an employment based visa and the employer's name, for purposes of conflict checking. If the applicant is seeking asylum or refugee status, or needs advice regarding removal from the United States, we refer the case out to counsel that handles those types of matters.

This initial information is important for several reasons. First, as pointed out above, there is a distinction between nonimmigrant and immigrant visas, both with regard to the applicable law and regulations, availability of the visa, as well as the application process and cost. This information is helpful in thinking about an initial strategy and as a guide for the discussion when we meet with the client face-to-face. However, in many cases we do not have this information. Instead, much information is gathered in the first meeting.

2. When you first meet with a client, what additional information is important for you to obtain?

a. Why is this information important?

b. How will this information help you determine the strategy that is best suited for the immigration issue your client has?

ANSWER: At the first meeting, if the information outlined above has not yet been obtained, that information is sought. In addition, we seek to (1) ascertain the individual's current immigration status, (2) determine if there are any upcoming deadlines, for example, visa or status expiration, (3) determine if the individual has entered under the visa waiver program, which may limit the ability to change visa status while remaining in the United States, and (4) determine what it is the client wishes to accomplish. For example, the client may only want to stay in the United States temporarily for planned medical treatment for himself or a family member. Alternatively, he may want to attend school, may desire work permission, or may seek to remain in the United States indefinitely, through an application for permanent residence. We also need to learn about any immigration violations or criminal matters.

We also gather unique information which might qualify an individual for a certain type of visa. As a first example, to qualify for an H-1B "specialty occupation" work visa, the individual must have a baccalaureate degree or its equivalent, and be seeking a job where a baccalaureate degree or its equivalent is a minimum entry requirement. We also need to know if the individual currently has H-1B status through another employer. This may allow a quicker transition to new employment and may allow the individual to avoid the annual numerical limit on H-1B visas.

As a second example, for an individual seeking L-1 intracompany transferee status, we must determine whether there are related foreign and United States companies, whether the individual has worked for the foreign company for at least one of the most recent three years, and whether he is coming from (and going to) a job which either involves specialized knowledge, executive or managerial status in the foreign and United States companies. For both H-1B and L-1 visa holders, there are usually maximum periods of stay, so we must determine how many years of potential eligibility remain.

As one final example, for student status, we need to ascertain that the individual is willing to become a full-time student, typically 12 credit hours per semester, that there is no bar to seeking student status, that there is a school willing to accept the student, and that the student has sufficient funds to attend school without the need to work.

With regard to persons seeking immigrant status, we determine whether the individual is seeking permanent residence through an existing family relationship (i.e., a close relative of a United States citizen or current permanent resident), or whether he seeks permanent residence through employment or in some other fashion.

Having this information allows us to make some recommendations as to possible visa applications and to advise the client as to anticipated filing fees and legal costs. We can also determine, within some parameters, the likely time frame in which the application will be filed and adjudicated. We also discuss whether all processing will occur in the United States or, alternatively, at a United States consulate.

3. How do you go about formulating a client strategy in an immigration matter?

ANSWER: It is necessary to know the eligibility factors and requirements for the various nonimmigrant and immigrant visas. In many cases, the underlying facts will point to a limited subset of visas which may realistically be available. In some cases, the strategy will be impacted by additional facts. For example, if an individual has entered the United States in the visa waiver program, in most cases it is impossible to change his status to another nonimmigrant status or to permanent residence unless he first leaves the United States. At that point, he must either reenter in some other visa status, if possible, or must remain outside the United States while the visa application is processed.

For a family related application, such as an application for the spouse of United States citizen, the strategy may be impacted by the client's plans. For example, if the parties are only engaged, it may be possible to seek a fiancée visa, which requires that the individuals not marry outside of the United States. Instead, after the fiancée visa has been granted at the United States consulate outside the United States, the couple must marry in the United States within 90 days of the foreign person's entry. If the parties have already married, the fiancée visa is not available and the parties must seek permanent residence based on marriage to a United States citizen. In this situation, the foreign spouse may have to remain outside the United States for as long as a year or more while the permanent residency application is being processed, unless a K-3 visa is available.

With regard to a work related permanent residence application, we consider whether the particular situation allows the employer to avoid the "labor certification" process, in which the employer tests the United States job market to assure that there are no United States workers available and willing to take the position. While it is rare, some types of applications can skip this process.

If the individual seeks employment in a job which requires labor certification, we strategize with the employer as to the appropriate education and experience requirements, and advise as to an appropriate recruiting campaign to seek to demonstrate there are no qualified United States workers. Since this is a time consuming process, we also discuss with the employer whether or not another temporary work visa will allow the employee to remain in the United States while the permanent residency application is pending.

In unusual circumstances, an individual may be able to enter the United States without a test of the job market based on a significant financial investment which will create jobs in the United States. In that case, we want to explore the individual's financial wherewithal and willingness and ability to invest in a United States business.

4. What types of questions will you ask of your client to determine the best strategy in an immigration matter?

a. Can you give examples of five questions you generally ask each client involved in an immigration matter?

ANSWER: As outlined above, we need to learn enough facts to determine the applicant's current visa status, if any, learn about his previous United States immigration background, if any, learn whether he is seeking a nonimmigrant or immigrant visa, and what his ultimate goals are.

Common questions include these:

a. What is your current visa status?

What is your education/work experience?

Are you seeking nonimmigrant or immigrant visa status?

If immigrant status, is it through relationship to a current United States citizen or permanent resident, through employment, or through some other means?

Are there affected family members who will need immigration assistance as well?

5. What type of documentation is important for you to receive from your client when working on an immigration matter?

ANSWER: We need passports for all individuals at issue, copies of any previous United States immigration documents, diplomas and transcripts with translations and/or certifications of United States equivalency.

We often also need birth/marriage certificates, copies of any previous divorce decrees, financial and other information as to the employer (if an employment based application), photographs, medical examinations, police/court records and biometric documents (these are typically not given to the lawyer but are collected by USCIS). For job related visas, we may need financial and other documents from the prospective employer.

6. What boundaries do you establish with your client in an immigration matter?

a. Why are these boundaries important?

b. How do these boundaries impact your representation of the client?

ANSWER: It is important to establish who the client is and to obtain understanding and consent to any dual representation. There is frequently a petitioner, who may be different than the foreign person, such as a United States citizen family member. The possible conflict situation is all the more evident in a situation where there is an employment based application. It is not uncommon to have one attorney work on the application even though the employer's interest and the employee's interest could possibly diverge.

It is also important to establish that the client will tell us the truth and that he is committed to signing the various immigration documents under penalty of perjury. Clients are expected to tell you the complete truth.

7. How do you deal with "bad facts" a client may tell you about in connection with their immigration matter?

ANSWER: Unfortunately, some facts are bad enough that there is nothing realistically that can be done to fix them. However, in many cases, problems can be overcome. For example, overstaying a visa and working without permission, under current policy, is normally overlooked when an individual is married to a United States citizen and is making an application for permanent residence on that basis. In other situations, a waiver may be available which would excuse some violations of immigration law. It is important to timely learn of the adverse facts in order to seek to overcome them.

8. How will your client's financial status impact the strategy toward your client and his or her case in an immigration matter?

ANSWER: Financial status is important for a couple of reasons. First, filing fees for various immigration applications continue to increase and in some cases, can be more than a thousand dollars. This situation is compounded if there are numerous family members who need immigration assistance. Additionally, lawyers expect to be paid for their time and expertise. Some situations can be labor intensive, leading to significant legal fees. There are few things more damaging to the attorney/client relationship than the client's inability or unwillingness to pay the lawyer's bills.

9. When developing a strategy for your client's immigration matter, how open do you remain to alternatives?

ANSWER: As pointed above, in some situations there are very few alternatives since an individual must almost always be "pigeon holed" into a nonimmigrant or immigrant category that the law recognizes. However, where there are alternatives, it is important to consider the alternatives and their ramifications, particularly in view of the client's long term immigration goals. Ideally, we structure the situation in a manner which allows the individual to remain in the United States in lawful status while pursuing his nonimmigrant or immigrant visa with minimal cost and interruption.

10. In what way do you take into account non-legal ramifications of your client's immigration matter?

ANSWER: In general, the primary non-legal ramification is the client's ability to pay the legal and filing fees. We try to make sure the client gets an accurate estimate of the expected fees.

11. How do you work with a client who wants to follow a strategy that you think is either not in the best interests of properly resolving their immigration matter, possibly unethical, or with other negative consequences for you and/or the client?

ANSWER: Clients come to us for our experience and expertise. We attempt to set forth the visa options (if there are options) and our recommendations. We refuse to take a position that is fraudulent or unethical, and if we can foresee negative consequences, we try to point them those out for the client. As noted at the outset, we refer out criminal removal, asylum, and refugee cases to attorneys who specialize in these areas.

12. What is the most important aspect of developing and implementing a proper strategy in an immigration matter with your client?

ANSWER: In some cases, it is possible for a person to do things which virtually destroy his ability to enter or remain in lawful status in the United States-for example committing certain crimes. Additionally, some courses of action may place an individual "out of status," which could impair his ability to remain in the United States, change his nonimmigrant status while still in the United States, or get work authorization. Additionally, some violations of status may make it impossible for an individual to "adjust status" to permanent residence in the United States. This forces him to go to a United States consulate outside of the United States to seek an immigrant visa. Significant overstays may bar the person from re-entering the United States for periods of 3-10 years. Additionally, some immigration violations are actually crimes and could result in prosecution and imprisonment.

13. What occurs during a citizenship meeting with the USCIS?

ANSWER: The individual and any accompanying family member will be interviewed. The USCIS examiner will review the government's file, which may include the person's entire United States immigration history. The examiner will also review all documents for completeness. The individual will normally be given a test of his or her ability to read, understand and speak English, as well a test on his understanding of United States history and government.

14. How long does the meeting last and how is it structured?

ANSWER: This is variable. In most cases, the process is completed within one to two hours.

15. Who are the individuals that are in attendance and what are the roles of each of those individuals?

ANSWER: Most examiners will allow counsel to be present, although his or her role is usually limited to advising the client. Family members or translators may be allowed to be present, again, to assist and advise the client. However, in particular with regard to the test of spoken and written English and the civics questions, the applicant is largely on his own. If the application is based on a marital relationship, the husband and wife may be separated and quizzed in an effort to assure that the marriage is bona-fide.

16. Are there any questions your client should ask the USCIS? What is appropriate?

ANSWER: This would not be common unless the client does not understand the process or what he or she is being asked.

17. What are the biggest mistakes that a client most often makes?

ANSWER: 1. Registering to vote or voting if he does not have citizenship.

2. Claiming United States citizenship if he does not have citizenship.

3. Misrepresentations, overstaying a visa or working without permission.

4. Failing to have accrued the correct amount of time as a United States permanent resident or failing to be physically present in the United States for the necessary amount of time.

18. What would be your three best pieces of advice for your client to have success in the meeting?

ANSWER: 1. Be courteous, but be prepared that the examination could take a more or less skeptical or accusatory tone. Stay calm.

2. Be sure all paperwork is in order.

3. Study carefully for the written and spoken English and civics portions of the examination.

19. What is the goal of the meeting - what is the best case scenario for your client and how do they go about achieving this?

ANSWER: To obtain a recommendation for approval of citizenship.

20. What should your client do to prepare for this meeting?

ANSWER: Gather all necessary documentation, review all forms that have been filed for accuracy and completeness and study for the examinations.

21. Are there any cases that are relevant to the matters covered?

ANSWER: Yes, there are many cases which deal with one or more of the issues covered above. However, it is impossible to provide any meaningful or useful list of cases in an article of this length.

22. Are there any statutes that are relevant to the matters covered?

ANSWER: Yes, the Immigration and Nationality Act is found at Part 8 of the United States Code.

23. Are there any regulations that are relevant to the matters covered?

ANSWER: Yes. Immigration regulations are found at Title 8 of the Code of Federal Regulations. Certain aspects of the labor certification process are found at 20 C.F.R. § 656, et seq. Certain State Department visa regulations are found at 22 C.F.R. § 40.1, et seq.