There are always certain questions I hear being asked over and over again. Some of the ones that come to mind are:
- How quickly can we have this filed?
- How long is it going to take?
- Why is my case taking so long?
In this brief post, I will attempt to answer each of these questions.
- How quickly can we have this filed? Even though each case is important to me, there is a certain “first come, first served” rule. If someone has hired me to work on a case before someone else, it is only fair that I handle that case first. Sometimes I will make an exception if I am waiting for documentation on the first case or if the second case has an impending deadline. Otherwise, the second client should understand that there may be a wait. I am not talking a bureaucratic wait of weeks or months, but definitely a few days before I can review the case and get the process going. Now, that’s if I am controlling that part of the case. I have also had cases that take unusually long if I request a document and the client does not provide the document until several weeks later. My biggest pet peeve is when a client takes weeks to get back to me and then they expect an immediate response. I try to do everything as efficiently as I can, but if I have to wait for two months for something, I cannot just automatically pick up the case in a matter of seconds. I have to re-review the file and check if changes need to be made. Sometimes form editions change or fees are increased or things have to be updated on the forms to account for the delay that was beyond my control.
- How long is it going to take? Immigration (United States Citizenship and Immigration Services – known as USCIS) has estimated processing times, but they are a guidance, not a certainty. For example, even though I can expect to have a decision within 4 months because that is on average how long something would take in my experience, that does not mean that any particular case has to take 4 months. I have had the same case for different clients decided in 3 months versus 2 years. No particular reason given by USCIS for taking 2 years on that case.
- Why is my case taking so long? This last question ties in with question number 2. Sometimes processing times would indicate that a specific case should have already been decided. In which case, there is not much I can do other than submit a case inquiry to USCIS. The problem with this is that USCIS does not necessarily have to give me a clear response. Most of the time, they simply say that they are taking additional time to perform a background check, which is all fine and dandy, except that I have a nervous client that has been waiting for two years.
Hopefully my responses have provided some insight, even though I understand they do not necessarily give a clean-cut response. I would love to be able to say to my client that I will have their case filed on Friday and decided on Monday with no delays, but unfortunately that is not the nature of immigration law.
The general public seems to find the cost of legal services rather high. I always like to point out that it is the same with medical services.
To see a doctor, one may be charged in the neighborhood of $200 for a consult (without insurance). During this consult, one sees a number of people before actually seeing a doctor (sometimes a Physician Assistant or a Nurse Practitioner). Then, during this consult, the doctor examines you and may or may not prescribe something based on what he or she thinks may be wrong. If further tests are needed, you are asked to have these tests performed and return for a follow up. Honestly, sometimes you may leave the consult just as confused and without an immediate solution as you were before going to the consult. I speak from personal experience, of course. Even though paying $200 for someone to tell me to drink plenty of fluids and rest may seem like a steep price, I am happy to pay it. There is value in peace of mind and seeing someone who has dedicated his or her life to the practice.
It is the same with lawyers. We are legal doctors (JD- Juris Doctor). Whether we can help or not, our time is valuable. We have dedicated years to our practice and simply because we may not always have an answer or the answer that the client is looking for, does not mean our time and effort is less valuable. We are not magicians and sometimes we need to research further into a case to see the potential solution. Simply because our work product may be in the form of a memo, a letter, or even an email, does not mean that we did not spend time performing research on the issue.
Nowadays, there is a move towards using computer programs to do legal tasks. Prepare wills, fill out forms, etc. Arguably, less and less people may feel inclined to see an attorney. But, just like medical cases, you can feed your symptoms into a web browser, but that is not going to replace the logical mind of a human being, at least not yet.
With the current political climate, there is no certainty whether this rule will remain. but it appears to have the green light for now (the Department of Homeland security will comply with the court order but is actively working to remove it).
This rule will be a good vehicle for entrepreneurs that can demonstrate the following:
- substantial ownership of start-up created within the past five years in the U.S. that has substantial potential for rapid growth and job creation (please note the use of the word “substantial” – a subjective term)
- provide significant public benefit to the US based on their role as an entrepreneur of the start-up by showing that: (please note the use of the word “significant” – ta subjective term)
- significant investment capital from qualified US investors
- significant awards or grants
- partially meet either of the previous two or both and provide additional reliable and compelling evidence (please note the use of the word “reliable and compelling” – subjective terms)
- otherwise merit a favorable exercise of discretion (extremely subjective)
This seems like a great opportunity in theory, but it only applies to a very specific type of entrepreneur and the subjective nature of the application means that it will all boil down to two things: whether the application is excruciatingly detailed and if the officer reviewing the application sees the merit in it. I guess I shouldn’t be surprised since that is how most other petitions are being decided upon nowadays.
Please refer to https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole for more information.
There is nothing that stresses me out more than seeing that dreaded “Decision” in my inbox stating that a case has been denied. I believe in every case that comes across my desk and denials really incense me. This year, the IT community has seen the worse of it from what I can tell. More than ever, positions are being questioned as to their “specialty occupation” status. Positions that have been readily approved in the past. I do not know if Immigration realizes that denying these positions is not going to open up more jobs for American workers, but instead, it will leave a shortage within the industry and probably lead to more outsourcing. It really is ludicrous to me that these incredibly complex positions that most certainly demand at a minimum a Bachelor’s Degree in computer/technology related fields are being essentially phased out of the H-1B program.
Yesterday, I was asked what are the common misconceptions about immigration. I took a moment to think deeply and the top two for me were these:
- Immigrants are taking American jobs
- Illegal immigrants could obtain legal status if they just wanted to (i.e. legal immigration is easy)
Immigrants are not taking American jobs. They are taking jobs that Americans are not qualified to do or do not want to do. There is clearly a shortage in certain professions that is being filled by immigrants. Restricting access will not make Americans decide to all of a sudden pursue a career in Computer Science or Neurosurgery.
Immigrating legally into the United States is not easy. I know enough about the process to say that it takes a very specific type of person to be able to accomplish this. You either need to have a lot of money at your disposal (acquired by legitimate means) or you need to be highly educated and/or successful in your field. The chances of a working age individual with little to no education and limited funds immigrating legally into the United States are slim, unless it’s through a family petition.
I know there are arguments on both sides. I would never advocate illegal immigration. I just know what I have encountered in my profession as a business immigration attorney, which are certainly more cases than the average person.