FAQ: Hiring an attorney

Question: Do I have to hire a lawyer to represent me?

Answer: No, you do not. There is no legal requirement that a person applying for immigration benefits must be represented by counsel. Some procedures are very simple and clearly do not require a lawyer. Others are obviously complicated and clearly require expert assistance. It is the procedures that are in between these two book-ends that cause problems. Sometimes a procedure may appear deceptively simple. In such cases, it is often very easy to make a choice that has far reaching consequences. This is where being represented by an experienced immigration attorney makes a difference.

Question: Can you give me some examples of seemingly simple situations where not having an attorney has resulted in serious harm?

Answer: Certainly. The following are some examples of subtle, seemingly simple issues that resulted in serious hardship because the people involved did not have expert assistance:

Example #1: An extremely talented individual applied for and was granted classification as an "alien of extraordinary ability" (EB1). This person had a child who was nineteen years old at the time. The principal applicant and his family applied for adjustment of status. Because the case was not properly "flagged" the adjustment of status was not completed until after the son's 21st birthday. As a result, the son was not eligible to adjust status and the father has to petition for him to immigrate in the family based "2B" category. The son must now wait another six years to become a permanent resident. Worse, because the son is clearly an intending immigrant, when he applies for a nonimmigrant visa to remain in the U.S. with his family, he is denied.

Had they been represented by competent counsel, their attorney would have either sent them abroad for faster processing, or else made sure that the USCIS completed the processing of the son's adjustment of status before his birthday.

Example #2: An employment based third preference immigrant applied for adjustment of status. While his adjustment of status was pending, he became engaged. Not knowing any better, he decided to wait until his adjustment was complete before getting married. When he did get married, he discovered that his wife must immigrate through the family based "2A" category and wait overseas for five years before joining him. Had he been represented by counsel, his attorney would have had him go abroad, using advance parole, and get married before his adjustment is granted. In this case, his wife is eligible to "follow to join" and can receive an immigrant visa within a few months.

Example #3: Having heard that "it is always better to apply in the EB2 category", an employee asks his HR department to require an advanced degree (or worse, its equivalent) as a minimum requirement for his labor certification. Not knowing any better, the HR professional goes along with this request. The additional educational requirement causes the prevailing wage rate to come in higher than expected. In addition, because the position does not really need an advanced degree, the Department of Labor refuses to accept the application for RIR fast track processing. After the employee waits years for a labor certification approval, he then files for an EB2 classification with the USCIS. The USCIS, however, disagrees that the job requires an advanced degree as a minimum entry level requirement (on an industry wide basis) and denies the I-140. The employee must now refile it as an EB3. Had he understood that there is no current advantage in having EB2 classification, he could have saved years of processing time and countless sleepless nights.

These are very simple examples of bad choices made from lack of knowledge. In each case, the long term consequences are serious and irreversible. It would be just as easy to cite examples of people making very bad choices that affect their processing tracks, adding months or years to their green card processing.

Question: How can having a lawyer make a difference?

Answer: A lawyer who is experienced in the specific area of immigration law that concerns you can be an enormous asset. Lawyers who deal with government agencies every day are aware of not only the official procedures, but also the unofficial (but effective) shortcuts. Their experience allows them to select which evidence and arguments are most likely to persuade the agency adjudicators. They are aware of the latest internal policies and changes in policy that can drastically affect the processing (and length of processing) of a case.

Anyone can read the statutes and regulations, and then "fill in the forms." A knowledgeable and experienced immigration specialist can also effectively guide the applicant through the "rocks and shoals" of the immigration process in the most efficient and least time consuming manner.

Question: What should I consider in selecting an immigration attorney?

Answer: There are at least two important threshold issues that must be resolved before seriously considering hiring an attorney to represent you:

First, is the attorney experienced in the specific area of immigration law that concerns you? If you are a scientist or engineer, for example, you want to hire an attorney who has considerable experience representing employment based immigrants. Is that enough? What if the attorney's experience is limited to representing cooks, maids, and other unskilled workers? How effectively will this attorney represent you? What if the attorney's experience lies in the area of deportation?

OK, you decide to hire someone who has a wide range of experience in all areas of immigration law. Well, this certainly assures that your attorney probably has some experience in your particular area of need, but how much? More to the point, how much better off would you be if you had hired someone who concentrates almost exclusively on cases similar to your case?

Second, if you find someone who does concentrate in cases similar to your case, who do they typically represent: employers or employees? This is an important consideration, as it often determines the attorney's mindset in representing you. Attorneys who primarily represent employers are accustomed to taking a more conservative and time consuming approach. Most employers instruct their attorneys to "take their time" in processing cases for the company's employees. Attorney's who primarily represent employees typically approach cases with the goal of completing them as quickly as possible.

Question: Are there other considerations that I should keep in mind when selecting an attorney?

A: Compatibility is vitally important. This is going to be an incredibly stressful experience for you, even if everything goes as planned.

What is the attorney's reputation when it comes to dealing with his or her clients? Does the attorney's office take client calls immediately? Or, does the client have to constantly badger the attorney to find out what's happening in the case? You want to find an attorney who will "be there" for you when you are stressed out after having spend (another) sleepless night worrying about your case.

Does the attorney provide you with timely updates as to each step in your case, including complete copies of everything sent and received by his or her office? If not, why not? You need to have a complete written record of everything in your case. A reputable attorney will do this as a matter of course.

All law offices use legal assistants to do much of the mundane work. If you select a particular office, is everything going to be reviewed by an experienced attorney? While status updates can be given more easily and efficiently by legal assistants, will an attorney always be available to talk to you about legal issues or matters of case strategy? More importantly, when you just need to talk to an experienced attorney, will he or she be there for you or will you get fobbed off on an assistant, and then only after calling fifteen times?

The USCIS warns applicants to beware of people who are not authorized to practice law and who may victimize you. To read this warning, click here.

Question: What about fees?

Answer: Unless you are independently wealthy, the amount you pay in attorney's fees is always important. The question is: should it be the principal basis upon which you decide which attorney to hire? The answer, obviously, is no. Since there is a wide disparity in the fees charged, even by highly competent attorneys who are experienced in precisely the area that you require, you need to investigate carefully what you will get for your money.

Who is going to do the work on your case?
Are you going to be paying for an attorney's expertise, while a paralegal does all of the work?
How technologically advanced is the office?
Are you going to have to pay for some technophobe's inefficiency?
Are the fees high because the attorney is that good, or because he has been getting away with charging that much?
Are the fees low because the attorney isn't very good, or because the attorney is very efficient?
For example, do the fees cover all of the inquiries that may be needed in the case?
What, precisely, do the fees cover? Make sure that you compare apples to apples.
How about requests for evidence? Is there an extra charge for dealing with these kinds of matters?
Will you be charged a fee every time you as a question or wish to speak with someone in the office?
Can you talk with your lawyer any time you want, or must you always speak with an assistant?As with most things, you generally get what you pay for. A lower fee can often mean either a less experienced attorney, or else the work is primarily being done by paralegals. In some cases, it can also mean that the office is very efficient. How can you tell the difference? You have to ask a lot of questions.

Talk to the attorney about his or her office. Who does the work? How technologically advanced are they? Where does the money go? Don't be afraid to ask questions - it's your money! Make sure you spend it wisely.

Most important of all, make sure that you understand precisely what is and is not covered by the fee to be charged. Compare like kind services and make sure that you will be getting what you want.

Question: If I hire an attorney, will that guarantee the result that I want?

Answer: No it will not. The best an experienced attorney can do for you is give you the best chance to win, but the win is not and cannot be guaranteed. There are simply too many extrinsic factors that are outside of the control of you and your attorney. The law could change, agency policies could change, you could even get into a fight with your employer and leave your job. Your attorney can do nothing more than use experience and expertise to position you where you will have the best chance to get the result you want.