Don’t Be Headstrong – Consult an Immigration Lawyer on Employee Transfers

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 visa consultancy of the year. All of these sad situations could have been avoided if the parties would have first consulted with an experienced immigration lawyer.

THE L-1 TRANSFERS THAT ALMOST NEVER HAPPENED

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.

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.)

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.

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