I will be the first to tell you that immigration law is complex and changing and requires vigilance and care in preparing applications, but there is no requirement that foreign nationals, their employers, or family members use a lawyer. It is also true that under the Trump administration, foreign nationals (and even immigration practitioners) have become more cautious and even hesitant about filing petitions given the increased scrutiny of their applications by immigration officials and consular officers; nevertheless, there are certain applications that should still be straightforward enough to file without legal assistance. Cases filed by individuals without legal representation are subject to the same review and adjudication process as others filed by attorneys. We’ve previously discussed why an experienced immigration attorney can be valuable and in some cases absolutely recommended, but in this post we’ll more closely examine the types of applications and petitions that foreign nationals in most situations can prepare and file on their own.
The Electronic System for Travel Authorization (or ESTA, as it is commonly known) is an automated system that determines the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP). The VWP enables most foreign nationals from participating countries to travel to the US for tourism or business without first obtaining a visa, if they meet certain requirements.
There is no need to use an immigration attorney to apply for travel authorization via ESTA. While there are services and travel agents that will assist with the process for a fee, we find this to be an unnecessary cost. The application is straightforward and takes about five minutes and $14 to complete. Of course, all questions must be read and considered carefully. That said, foreign nationals who have been arrested, cautioned, or who have experienced immigration issues in the past may need the assistance of a lawyer to ensure they answer questions correctly.
Diversity Visa (DV) Lottery
Every October, the DV lottery makes available 50,000 immigrant visas for individuals from countries with historically low immigration rates. According to the State Department, the diversity visas are distributed “among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.” There is no application fee, and foreign nationals can apply electronically at dvlottery.state.gov without the assistance of a lawyer. They should note that the DV lottery is one of the most commonly targeted visa categories for fraud since scammers may try to either promise success or better odds by applying through them. The State Department even has its own webpage cautioning applicants about this type of fraud. I’ve also written about scammers targeting DV applicants. All that said, while DV applicants typically file their DV applications on their own, if selected in the lottery many applicants hire qualified attorneys to file either an adjustment of status to permanent residence if in the US or to have the attorney guide them through consular processing abroad to obtain a Green Card.
Replacement Green Card
Whether it is a lost Green Card or one that is expiring after ten years, the solution to the problem starts with an application to US Citizenship & Immigration Services (USCIS) using Form I-90, which is straightforward enough so that applicants can file on their own without the assistance of a lawyer. Good news for those who must replace the Green Card in a hurry (probably everyone!): the I-90 can now be filed online (in most cases) via the USCIS.gov website. Once the form is submitted applicants will be able to attend an appointment for biometrics where they will get a sticker to extend their expiring Green Card. If the Green Card is lost individuals can get a stamp in their passport so they have proof that they hold a Green Card. Of course, if certain issues come to light as part of the application process, foreign nationals should consult an immigration lawyer for advice.
Deciding to apply for citizenship (aka naturalization) is an important step in the life of an immigrant in the US. The good news is that while some may choose to have an attorney file the N-400, Application for Naturalization, many applicants also file this form quite easily on their own. As long as they meet certain conditions, chief among them is that they hold a Green Card and can demonstrate continuous permanent residence in the United States for at least five years (three years if married to a US citizen) and show that they have been physically present in the United States for thirty months (eighteen months if married to a US citizen)—i.e., over half the days of the last five years (or three years if married to a US citizen)—they can apply online or via a paper version of the form. When filling out the application and answering questions that potentially reveal an issue (such as non-payment of US taxes, criminal arrests, excessive international travel over six month periods), applicants should consult an experienced immigration attorney.
The United States is one of the most popular places for foreign nationals to come to study. In the 2015 to 2016 academic year, over one million international students came to the US. Although numbers have dropped since President Trump was elected, many foreign nationals will still come to the US to study at our highly respected educational institutions. While there exist a few visa options for students, thankfully an attorney is not necessarily needed to apply for them.
Students applying for an F-1, for full-time students studying at an accredited college, university, seminary, conservatory, academic high school, elementary school, other academic institution, or in a language training program, or those applying for an M-1 visa, for vocational students or other nonacademic program, may find the visa application process fairly straightforward, since they can apply directly at the US Embassy/Consulate abroad. They should work closely with their schools to ensure they have all the necessary paperwork, such as the Form I-20, to bring with them to the visa appointment.
A J-1 is another option for students, but the application process is different than for an F-1 or M-1. Approval of the J-1 is controlled by the Department of State who designates public and private entities to act as exchange sponsors. The sponsoring entities then place the foreign national at a host organization in the US. Host institutions for students are typically the academic institution where the study will take place. Once the sponsor has approved the program at the host institution and provided the student with the DS-2019 approval form, the student can make an appointment at a US Embassy/Consulate abroad to obtain the J-1 visa. Since the application process for J-1s can sometimes be more complex than an F-1 or M-1, in some circumstances it may be advisable to have attorney assistance.
Over 100,000 representatives of foreign governments, including their dependents, are in the United States, and many of these foreign representatives are entitled to some degree of diplomatic immunity and certain privileges. While most foreign nationals who are applying for a visa abroad must attend an interview at a US Embassy or Consulate, diplomats and foreign officials eligible for certain A, C, G, and NATO visas generally do not need to attend an interview. Additionally, there are no processing fees, and they may be exempt from fingerprinting requirements.
Further, if qualified for these visa classifications, then the foreign national may not be refused entry to the US based on grounds that would usually lead to exclusion. They must still provide the US Embassy or Consulate with the required documentation, which includes a note from the sending government, mission, organization, or authority confirming the official purpose of the travel. Since the process is generally much easier for diplomats and their staff, immigration counsel should not be necessary. Additionally, many times the mission organization will assist.
An I visa is a temporary visa which allows representatives of foreign press, radio, film, or other foreign information media to enter the US in connection with the news gathering process, as well as informational or educational documentary films or a television series. Since I visas must be applied for directly at a US Embassy/Consulate in the applicant’s home country, the process is generally more straightforward than other work visa types, and many applicants apply on their own. The applicant must make a visa appointment at the US Embassy/Consulate, complete and submit the DS-160, and pay the applicable visa processing fee, and be sure to present a letter signed by the foreign media organization sponsoring the application outlining how the applicant qualifies for the I visa, as well as a valid employment contract. In recent years the process has become more complicated for certain representatives of media organizations and if applicants don’t have journalistic credentials, it may be safest to speak with a lawyer.
In order to ensure that USCIS has the correct information on file, foreign nationals should file Form AR-11 when they move. They can file this form easily online without the assistance of an attorney. It’s important to file this form to ensure that foreign nationals continue to receive all communications from USCIS including, for example, work cards and, of course, the all-important Green Card. While it is true that USCIS doesn’t always manage to update its systems in advance of the mailing of important documents, filing the AR-11 and notifying their lawyer at the same time gives foreign nationals the best chance of receiving correspondence.
And finally, one last application which used to be fine to do without a lawyer may now require the services of an attorney:
DS-160 and the Consular Process
With few exceptions, most applicants for a visa stamp must submit a DS-160 and attend a visa interview at a US Embassy or Consulate abroad. While I used to say that applicants could prepare themselves for the consular process and interview, with recent changes, starting even before the Trump administration, some previously straightforward applications have drawn more scrutiny. Even though a consular officer has limited authority to “re-adjudicate” a petition that USCIS has already approved, we have seen many officers essentially do just that. Moreover, they are adjudicating certain visas by a standard different than what USCIS uses, and we are aware of some US Embassies/Consulates requesting higher-level proof than required for the petition application. One example of this is with O-1 visas. We have heard of officers telling applicants that they weren’t at the level of Adele so they don’t qualify for the O-1 visa (which is not true according to the regulations).
To prepare for this, applicants should be able to confidently discuss their US position or US job offer in detail and how they qualify for the visa. In certain cases it may be advisable to have an immigration practitioner brief the foreign national on the interview process and certain questions that they may receive from consular officers. If the case is put into “administrative processing,” it may be advisable to consult with an attorney.
We’ve laid out some cases where an attorney may not be needed. That said, if there are complications, especially if there are criminal issues or arrests in an individual’s background, or if individuals are unsure of the process, it is always a good idea to hire an expert. Attorneys can be useful sometimes, we swear!