Do I Need an Immigration Attorney?

by Matthew Bray

Many people ask themselves this question when considering applying for work visas, Green Cards, or other immigration benefits. At first glance the immigration forms and instructions on the US Citizenship and Immigration Services’ (USCIS) website seem relatively straightforward. Some even may have heard stories from friends or colleagues who successfully applied without hiring a lawyer. In this post, we consider different kinds of immigration benefits (along with more complicated deportation cases) and the reasons why one may wish to hire an attorney to assist them in the process.

Of course, as a lawyer working for a boutique immigration law firm, I’m biased; however, I also write from the perspective of a lawyer who has seen what happens when applicants attempt to apply pro se (without legal representation) for cases that are far from as simple as they seem. In a separate future post, we will discuss the dangers of hiring an “Immigration Consultant” or “Notario” and also the unique ethical obligations of attorneys.

First, let’s be clear: There is no legal requirement to be represented by a lawyer in immigration petitions and applications. A petition or application filed pro se will not automatically be rejected by a USCIS Service Center simply because it was not prepared by an attorney. Such petitions or applications will be subject to the same review and adjudication process that others filed by attorneys go through.

But winning approval of an immigration petition or application invariably requires more than just properly filling out a form (although that is essential as well). It also requires a fundamental understanding of how numerous and distinct laws and legal concepts interact with agency regulations and practice. Immigration is a highly specialized, complicated, and ever-changing area of law. The Supreme Court itself has recognized this in its 2009 groundbreaking opinion, Padilla v. Kentucky, which found that an attorney provides ineffective assistance of counsel by failing to advise a client of the immigration consequences of a particular criminal conviction. But immigration law is complicated far beyond its notoriously complex intersection with criminal law.

The role of a trained immigration lawyer is to determine whether a foreign national is eligible for a particular kind of visa, or Green Card, or other immigration benefit, such as asylum, DACA, waiver of deportability or inadmissibility, or relief from deportation in immigration court, among others.  To make that determination requires a careful consideration of the facts of the case and the ever changing and evolving law. An experienced lawyer will be able to not only determine eligibility, but also provide a strategy for winning the case. This includes identifying the most appropriate documents that are required to accompany a petition/application as well as those that should be provided in order to convince an Immigration officer to approve the case. Experienced immigration attorneys will be familiar with not only the changing law, but also the changing administrative guidelines followed by immigration officers adjudicating cases and the often changing procedures they follow. Pro se applicants will very likely not be privy to such changes, even if they have carefully read through the form’s instructions. Without the experience that comes with practice, pro se applicants will most likely not be able to formulate or execute a strategy for success.

Moreover, often there may appear to be a number of options available to foreign nationals interested in coming to live and work in the United States. An experienced immigration lawyer can help these foreign nationals determine the best course of action from among a number of potential options, or advise when they are not eligible for any benefit, thereby saving money and effort, as well as advising on how to become eligible for different categories.

For example, a British national comes to the United States using the ESTA/Visa Waiver Program, and is authorized to remain in the US for ninety days. After two months, he is offered a job to work at a local pub in the neighborhood where he’s been staying. He accepts the job and loves it; he decides he wants to stay in the United States for good. After a few short weeks at the pub, and aware that his ninety days is about to expire, he goes to the USCIS website to see if there is some way to stay longer. He finds there is a form available to extend stay in the United States, Form I-539, Application To Extend/Change Nonimmigrant Status. So he carefully fills it out, and requests additional time to stay in the US while he continues to work at his pub job. He submits the fee, and copies of his passport and entry stamp. All good, right? Wrong.

Although he entered as a nonimmigrant, he entered under the Visa Waiver Program, and as such he has no right to extend his status. Moreover, by honestly answering the question on the form, he has essentially admitted to violating the visa waiver status by working without authorization. These admissions will put USCIS on notice of these violations, and the likely result will be not only the denial of the application, but an order to depart the US immediately and a permanent bar from using the Visa Waiver Program in the future. He will have to apply for a visa at a US Embassy/Consulate the next time he wants to travel to the United States--and he may find that his application is denied since the Embassy/Consulate will have proof that he violated the terms of his admission to the US in the past.

Had our friend met with a qualified and experienced immigration lawyer, the lawyer would have advised him that he was NOT authorized to work and NOT eligible to extend his nonimmigrant status. The attorney would also be able to advise on any work visas he may be eligible for as well as the proper procedures for applying if he were eligible. Depending on the specifics, that lawyer may not earn a legal fee from that case, but our friend will have saved the money, effort, and frustration connected to applying for a benefit he was not eligible for.

Another example would be of a young woman brought to the United States illegally as a child. She is married to a US citizen and they have three kids of their own, but she has always understood that since she is an undocumented immigrant, she could never legalize her status. She learns of the new process of Deferred Action for Childhood Arrivals (DACA), and wants to apply so she can have a work card. She carefully fills out the form and includes the necessary documentation. Ultimately, her application is approved, and she is thrilled. But she wonders if she will ever be able to get a Green Card and become a citizen.

If this woman were to meet with a qualified immigration attorney, she may learn about the new provisional waiver program for relatives of US citizens. This program allows certain relatives (including spouses) of US citizens to apply for a waiver of their unlawful presence in the United States, so that they can ultimately obtain their Green Card based on their marriage to a US citizen, without having to be separated from their families for years. Our friend here has another, potentially better, option available to her that would meet her long-term immigration needs—an option she may not have been aware of if she did not meet with a qualified attorney.

Or consider a talented photographer who has worked on several photo shoots for a well-known fashion brand in her home country. She reviews the regulations regarding O-1 visa classification for artists of extraordinary ability, and decides that she has evidence that would qualify her under at least three of the regulatory categories. Working with a sponsor, she puts together a petition and includes the evidence she collected. She is shocked when she receives a Request for Additional Evidence (i.e, a dreaded RFE) and is unable to send in any different evidence since she already submitted her portfolio. When she is unable to answer the RFE, her case is denied. Had she met with an attorney experienced in preparing O-1 petitions, she would have learned that a viable strategy for an O-1 petition includes providing evidence that the photographer has been working in the field over a sustained period of time. While not directly required by the form instructions or even the language of the regulations, this is something that attorneys accustomed to working with artists in the field would have learned through experience.

There is another very important reason to use the services of an experienced and qualified immigration attorney: although USCIS is staffed with many competent, intelligent, and hardworking individuals who truly want the best for foreign nationals and adjudicate their cases to the best of their ability, as with any agency or organization, sometimes they get it wrong. Occasionally USCIS applies the incorrect statute or regulations to immigration petitions or applications, or misapplies the correct ones to a given case. In recent years, USCIS has regularly referred certain cases to a little-known “Fraud Detection” unit. A sincere and eager pro se applicant can be found to unwittingly run afoul of the law simply by trying to complete a petition or application and meet the requirements in the instructions. An experienced immigration attorney will know how to respond to the misapplication of law, or the misinterpretation of the facts of a case. The attorney will know how to respond to a request for additional evidence, when to request the review of a supervisory immigration officer, when to appeal an unjust denial of a case, or how to fight a fraud finding.

Finally, an experienced and qualified immigration attorney can make all the difference in the world for someone fighting deportation. The numbers bear this out. According to the New York Immigrant Representation Study (NYIRS, a two-year project of the Katzmann Immigrant Representation Study Group and the Vera Institute of Justice), among non-detained immigrants in New York’s immigration courts, 74% of those with lawyers won their cases, compared with just 13% of those without representation. The stakes could not be higher when facing deportation and separation from friends and community. Looking at these numbers, it’s clear that it is absolutely recommended to have an experienced deportation defense attorney in such cases.

That said, we recognize there are still some petitions and applications that, under the right conditions, can arguably be successfully completed without attorney representation. Simple and straightforward marriage-based Green Card cases, some naturalization cases, applications for employment authorization, the nonimmigrant visa application DS-160, diversity lottery applications, and simple applications for replacement Green Cards, may all be successfully applied for without attorney assistance assuming the applicant has a basic understanding of the eligibility requirements and correctly follows the instructions.

Hiring an immigration attorney to guide foreign nationals through the labyrinth of immigration laws may be costly, but there are many reasons why it may be worth it. With so much at stake for foreign nationals seeking to reside temporarily or permanently in the US, it can be very risky to assume that careful completion of the publicly-available immigration forms will be sufficient to win an immigration case and gain (or maintain) immigration status in this country. For that reason, the best advice may be to obtain the best possible legal advice through an experienced immigration attorney. But you probably knew I would say that!