The complexities of immigration law create numerous reasons for employers to retain an attorney to help with the process of hiring foreign workers. When employers make mistakes during the immigration process, they lose time, money, resources, and can accidentally subject themselves to fines or other penalties.
Moreover, the employer’s mistakes can jeopardize the immigrant’s legal status and could result in the worker falling out of status or even being deported. Read more about the benefits of working with an immigration attorney here.
Each type of work visa (and there are many!) requires different forms, fees, documents, and evidence -- and these requirements often change. Due to the many different requirements, inexperienced employers are vulnerable to making mistakes in the work visa process, which often result in the denial of the petition.
For instance, to hire an H-1B worker, an employer files an I-129 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-129 is 36 pages long, because USCIS uses it to process multiple types of visas, and not all 35 pages are needed for the H-1B petition. But if the employer omits a necessary page, the H-1B petition will be rejected.
USCIS provides instructions to Form I-129, leading inexperienced employers to think they can simply read the instructions and find out what to include in the petition. However, the I-129 instructions themselves are 28 pages long and provide information not just on the H-1B requirements, but also the requirements for more than ten other visas! An employer could spend hours just reading the many pages of these instructions and form, and still not know what is required for an H-1B. Conversely, an experienced immigration attorney already knows the H-1B requirements and can quickly prepare and file the petition for the employer.
Additionally, there are some aspects of immigration law that employers find confusing, but which are critical to the worker maintaining legal status in the United States. For example, many employers do not know about an immigration policy informally referred to as the "last action rule." Per this rule, the last action taken by the U.S. government in regards to an immigrant’s status governs the duration of that person’s status. The last action rule typically comes into play with Form I-94.
Form I-94 tells the foreign worker when his or her status expires. Up until April 2013, this form was a small white card given to foreign visitors at the border, but it has recently been automated in many instances. Form I-94 states the worker’s name, visa status, and status expiration date.
Now the officer is supposed to put the same expiration date that's on the USCIS Approval Notice. For example, USCIS approves an H-1B petition for a Russian worker, and the approval notice states the H-1B status expires on September 30, 2016. When the Russian worker enters the U.S., the immigration officer should put September 30, 2016 on the worker’s I-94.
However, often immigration officers make mistakes and put the wrong date on the I-94. The last action rule states that this date (even though it’s wrong) is now the worker’s new status expiration date (since putting this date was the government’s “last action” on the worker’s status). Thus, the I-94 date overrides the date on the USCIS approval notice and now governs the duration of the worker’s status.
Now let’s say, in the example above, that the officer accidentally puts August 30, 2016 on the Russian worker’s I-94. The worker is now in legal status only until August 30; NOT September 30. Beginning September 1, 2016, the worker is in the U.S. unlawfully.
Many employers do not understand the last action rule and foreign workers have been deported because they and their employers did not know about the importance of I-94 dates. Hiring an attorney will help employers avoid such serious consequences.
Even the tiniest mistake in an immigration petition can have serious consequences. Inexperienced employers do not fully appreciate all of the things that can go wrong during immigration processes, and that every minute detail in every single section of an immigration petition is very important.
For example, many employers who hire foreign workers for permanent jobs complete the labor certification (PERM) process. The PERM process requires employers to place advertisements for the job. The advertisement process is complicated, as only certain types of ads are acceptable, the ads must contain specific language, and there are many timeframes and deadlines involved.
Additionally, the PERM application (ETA Form 9089) is complex. Employers find it difficult to understand how to complete the required Form 9089. (You can learn more about the PERM process at Employer Recruitment Responsibilities Under PERM.)
There is no room for even the smallest mistake when completing Form 9089. Almost any error will result in a denial. For example, the Form 9089 requires the employer to state the worker’s salary. Sometimes employers accidentally state the wrong salary, and even a one cent difference--such as stating $90,500.26 per year when the salary is actually $95,500.25 per year--will result in a denial.
Many immigration attorneys specialize in the ins and outs of the Form 9089 and are available to assist employers throughout the PERM process.
Many employers begin the hiring process for foreign workers while the workers are abroad. Once USCIS approves the work visa petition, the worker obtains the visa at the U.S. consulate in his/her home country and uses the visa to enter the United States.
To obtain the visa, the worker must schedule a visa interview. Visa interview procedures vary by consulate, and all consulates require documents and fees before providing the visa. Moreover, the U.S. consulate officer has the discretion to deny the visa even though USCIS approved the petition. Additionally, some job positions are regularly subject to stricter scrutiny at U.S. consulates, such as IT positions (for H-1B visas) and intracompany transferee positions (for L-1 visas). Workers in these positions are more likely to experience delays at the consulate.
An attorney will know exactly what documents to prepare and will be able to help the foreign worker answer the consulate officer’s questions and prevent visa delays or denials. For all of these reasons, many employers choose to have their attorneys attend the visa interview with the foreign worker.
Importantly, attorneys can also help employers prepare for a USCIS site visit. A site visit is when USCIS comes to the employer’s office to investigate the employer’s immigration petitions. It is important to be well-prepared for a site visit, because USCIS can deny or revoke a visa petition based on its outcome. Attorney assistance can be beneficial here, too. (Read more about site visits in Is Your Workplace Ready for a USCIS Worksite Inspection?.)
A foreign worker could qualify for multiple visas, but have trouble knowing which is best. An immigration attorney can help the employer and worker decide which visa best suits the employer’s needs and the worker’s qualifications.
Each work visa carries different advantages. For example, with two exceptions, a worker can extend an H-1B visa only for six years (read about the exceptions to this rule at How Long an H-1B Worker Can Stay in the United States). At the end of the six years, the worker must depart the country and remain outside the U.S. for one year before reapplying for an H-1B visa. Conversely, a worker can extend an E visa as many times as the worker wants--there is no limitation like there is with the H-1B visa.
Note that if an employer chooses not to hire an attorney, the employer is still cautioned to not rely on advice or information provided by government agency workers. These workers have no responsibility or liability for any erroneous information they provide and employers cannot blame the government worker for providing incorrect advice.
This unfortunate reality has the potential to detrimentally affect employers who hire foreign workers. There have been employers who called USCIS and asked an operator when the employer should file a request to extend a worker’s visa. The USCIS operator told the employers to file the request at any time.
That information was wrong. The law actually states that employers can file extension requests only within the six months preceding the visa’s expiration date. One employer, relying on the incorrect information provided by USCIS, filed the extension request nine months before the visa’s expiration date--and USCIS rejected the petition. The employer not only wasted time and money preparing the request, but was required to prepare the entire extension request again within the six month time frame. If the employer had an attorney, this situation would have easily been avoided.
For more information on employment-based visas, see Employers: Sponsoring Immigrants for Work Visas or Green Cards.