How to Choose a U.S. Visa Lawyer When the Stakes are Commercial, Not Just Legal

A myriad of factors appear to be the determinants of success, as your company finalizes the expansion of its operations into the U.S.  

 Literally years of market research, planning, and forecasting have brought this project to the point of execution.

Timing is of high consequence; the chosen employee needs to be on location, prepared to spearhead the initiative in coordination with anticipated market trends.

While retaining legal counsel on immigration requirements was, of necessity, deferred until the commercial aspects of the arrangement were being finalized, immigration has now become the make-or-break aspect of the deal.

Choose a U.S. visa lawyer by checking three things before you discuss price: 1. They are admitted and in good standing in a U.S. jurisdiction and can explain how they will formally represent you in your matter. If the case includes a USCIS filing, that will normally include Form G-28. 2. They will tell you which routes they have ruled out and why. 3. Scope, fees and outside costs are set out in writing.

Why is your decision a commercial consideration before it is a legal one? 

• The cost of choosing wrongly is almost never the legal fee. Rather it is the four months’ move of the start date when:

a) a visa category turns out to be unavailable;

b) the need for a second application after a refusal;

c) a contract that needed the person to be on site in January.

• U.S. immigration is one of the very few areas of professional services a UK business buys where the normal domestic quality signals do not apply.

A firm’s reputation or regulatory status in the UK does not by itself establish that the individual advising you is authorised to practise U.S. law or represent you before USCIS. Check the lawyer’s U.S. admission and current good standing.

• The verification burden sits with the buyer.

That is not fair, but that is the situation.

What ‘U.S. visa lawyer’ means, and how to check in five minutes: 

• Under U.S. federal regulation, an “attorney” is a person eligible to practise law who is in good standing with the bar of the highest court of any U.S. state, possession, territory, or commonwealth, or of the District of Columbia, and not subject to any order restricting their practice (8 CFR 1.2).
• Who may represent you. A party before the Department of Homeland Security may be represented by any attorney meeting that definition (8 CFR 292.1(a)1)).
• The consequence that surprises people: Representation before DHS and USCIS is governed by federal immigration rules. An attorney who meets the federal definition can represent a client in a USCIS immigration matter regardless of the U.S. state in which the employee will work. An Illinois-admitted lawyer, for example, can represent a UK company on a USCIS petition for an employee moving to Texas. What matters for that federal representation is the attorney’s eligibility to practise and good standing, rather than the employee’s destination state.
• Form G-28. Form G-28 is the Notice of Entry of Appearance as Attorney or Accredited Representative. When US Citizenship and Immigration Services (USCIS) accepts it, the attorney or accredited representative is recognised as the representative of record for that USCIS matter. The client can also make elections about whether certain original USCIS notices and documents are sent to the representative or directly to the client.
• The two checks. You can verify a lawyer’s current status through the relevant U.S. licensing authority and check the Executive Office for Immigration Review’s disciplinary records. These are public checks and are useful steps for a company instructing U.S. immigration counsel.
• The consultancy distinction. An immigration consultancy is not a law firm. Some are very good at logistics, tracking, and reporting at scale. They are a different purchase, and the difference matters most precisely when a matter becomes difficult.

Law firm, consultancy, or global provider: what the difference means commercially 

Eight questions to ask before you choose a U.S. visa lawyer: 

What good counsel will tell you that you would rather not hear

• No one can guarantee a visa. Visa applications can be refused at the consulate: under section 214(b) of the Immigration and Nationality Act for most categories, including E-1 and E-2, and any application can be held under section 221(g) for further documents or administrative processing. Neither outcome is within the lawyer’s control. A firm that guarantees an outcome is telling you something about itself.
• Your lawyer may not be able to attend the interview. Each consular section sets its own policy on whether attorneys may enter the section and attend visa interviews, and whatever policy a post sets must be applied consistently to all attorneys there (9 FAM 602.1). Anyone promising to be in the room with your employee at the U.S. Embassy in London is promising something they do not control.

• Premium processing does not apply to every immigration filing. It is a USCIS service available for specified immigration benefit requests, and the applicable timeframe depends on the type of filing. Many eligible employment-based nonimmigrant filings have a 15-business-day timeframe, while certain other eligible filings have 30- or 45-business-day timeframes. Premium processing applies to qualifying USCIS adjudications; it does not expedite a visa application being adjudicated by a U.S. embassy or consulate. 

• An E-1 or E-2 visa application made outside the United States is adjudicated through the Department of State at a U.S. embassy or consulate. USCIS premium processing cannot expedite that consular visa application. E classification can, however, also arise in filings with USCIS inside the United States, and certain eligible E-classification filings can use premium processing. The important distinction is between a USCIS immigration-status or classification filing and an application abroad for an E visa.

What it costs and why the number changes

• The four factors that determine the cost of the matter:

1. The immigration lawyer’s professional fee.
2. Government filing fees payable to USCIS (set by regulation and subject to change).
3. U.S. Department of State visa application fees and any applicable issuance or reciprocity fees.
4. Third party costs (translations, credential evaluations, courier fees, employee’s travel costs to the interview).

• Factors that may cause the fee to change:
  

1. A Request for Evidence or Notice of Intent to Deny
2. A change of work site
3. A change in company ownership
4. Dependents added after the initial scope
5. A route change once the facts are properly known

Note: A firm that cannot tell you in advance what would change their fee has not scoped your matter properly.

What it looks like when you get this right

The outcomes:

• Leadership is no longer guessing.
• The employee and family are properly managed.
• The client has been informed at each stage of the work.

The artefacts:

• A written visa assessment covering category, timeline, cost, likelihood, and next steps (in language the HR lead can forward to the CFO without translating it).
• One named contact, and updates that arrive before having to be chased.
• A plan that survives a change in policy (because someone is watching for that).

If you are the person managing this internally

As HR Director, Head of People, or Global Mobility Manager, you’re going to be the one in the room when leadership asks what happened. The right choice of legal adviser is part of your own professional protection. A consultation with an immigration lawyer is where that crucial conversation process starts.

This post is for informational purposes only and is not intended as legal advice. If you require further assistance or advice relating to the above, please contact janice@flynnhodkinson.com.