[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]
The process of immigrating to the United States can be one of the most important experiences many physicians will go through in their lifetime. While any move is stressful, moving countries is especially complicated and stressful, and failure to plan accordingly can result in disastrous scenarios. Understandably, many individuals consult with immigration attorneys to help navigate the complex process.
Amongst the immigration bar, physician matters are acknowledged as among the most complicated, and except for doctors entering the country on J-1 visas, it is uncommon for a physician or physician employer to proceed without an attorney. Even when an immigration attorney is consulted, many will refer such cases to an immigration attorney who specializes in physician immigration matters.
Do you need an attorney?
As is the case with many legal matters, the adage, “He who represents himself has a fool for a lawyer,” is applicable to immigration law. Immigration law, and more specifically American immigration law, is among the most politically divisive areas of the legal system. Because of this, it has become incredibly dense and is in a constant state of flux. There are no fewer than three major agencies that administer the U.S. immigration system, in addition to dozens of other agencies which play a role. Many prospective immigrants consult agencies such as U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State when determining the best method for immigrating to the United States.
Though the concerted efforts which were made by these agencies to provide better information to the public are starting to bear fruit, it is not always the best course of action to rely on government agencies for legal advice pertaining to immigrating to the United States. There are a number of reasons why this is the case, including the following:
- They have no liability or responsibility for the information they provide.
- They are enforcement agencies, and the mindset of these agencies is often to keep out as many people as possible.
- Immigration officers are often inadequately trained in immigration law and fail to keep abreast of the latest developments.
- Individual immigration cases can differ dramatically, and agencies do not possess the resources to properly assess your case on how to proceed.
Even if an individual can successfully file an application without help, that individual’s lack of knowledge regarding immigration law could lead to costly mistakes in terms of both time and money. If an immigration attorney is hired after the fact, those mistakes could limit the number options moving forward. Furthermore, immigration attorneys are likely to charge higher fees to help correct those mistakes than they would have had they been consulted at the onset.
A good immigration attorney should be able to provide an honest and thorough assessment of your case and explain the options that are available to you based not only on the current law but also changes that are in the administrative, legislative, and judicial pipeline at any given time. The attorney can then work with the individual to prepare the his or her case and provide representation before the administrative agency handling the petition. Counsel should be able to explain to the government agency that the case adheres to the requirements of the law, and if problems arise, often has additional resources to help resolve the issue or can prepare the case for an appeal.
What about people who call themselves “immigration consultants”?
In most states, “immigration consultants” are breaking the law by practicing law without a license. Without a license, the work of “immigration consultants” is not regulated, and individuals who utilize their services do not have the same recourse available in the event that the person turns out to be dishonest or incompetent. Though generally referred to by the media as “notarios” who take advantage of low-skilled, lesser-educated individuals, there are several individuals across the United States who specifically target immigrant physicians.
USCIS does not recognize immigration consultants and does not permit them to intervene on behalf of cases in which problems arise. Though many immigration consultants assert that they simply assist individuals with completing forms, even USCIS has cautioned the public that the complexity of applying for a visa or citizenship extends far beyond simply filling out forms. There are regulations behind most of the questions asked on USCIS forms, and questions which superficially appear to be quite straightforward are in fact tailored to elicit information related to a complicated matter of law.
In recent years, online web services have arisen that people can use to file immigration applications on their own. Some are run the same way notaries run their businesses. Others are more reputable and recognize when they are crossing the line and engaging in the practice of law versus giving individuals with very basic needs access to tools to handle a matter without a lawyer. The better solution for many may be to talk to a reputable lawyer to see if there are red flags once should be aware of before filing a case with an online services firm.
What should you look for in an attorney?
There are numerous factors that need to be taken into consideration when hiring an immigration attorney. With more than 15,000 immigration attorneys practicing in the United States, the process of selecting the best option can seem daunting.
The following list of factors may help those faced with making this important decision:
- American Immigration Lawyers Association – Is the attorney a member of the American Immigration Lawyers Association (AILA)? AILA is the only professional bar association in the United States which exclusively focuses on immigration law. AILA’ member attorneys practice and/or teach immigration law, and the association is likely the immigration attorney’s most valuable resource for the latest information and education in immigration law. Though AILA membership does not assure quality of an attorney, it can be indicative of an attorney’s efforts to stay updated on the modifications which are constantly occurring in the field of immigration law.
- (For physicians) International Medical Graduate Taskforce – Does the attorney belong to the International Medical Graduate (IMG) Taskforce? The IMG Taskforce is a relatively small bar organization comprising of the top physician immigration attorneys in the United States. Most members of the IMG Taskforce are also members of AILA. The IMG Taskforce is one of the most important ways that immigration attorneys can stay up-to-date on the latest news affecting physician immigration, which will be unavailable to attorneys who are not members of the taskforce.
- Attorney’s fees – How does the attorney set fees? Most immigration attorneys work on a flat-fee basis. In many matters, however, hourly billing or contingency billing may be done. If an attorney’s fees fall far outside what the market is, whether too high or too low, it should be interpreted as a red flag. The attorney could be unaware of the extent of the work associated with the case, or the attorney could simply be price gouging prospective clients. An attorney quoting a price that is too low may be able to charge such a low price because the work is actually being done by a legal assistant or very junior associate. There are great attorneys who charge more and ones who operate so efficiently that they can justify charging a lower amount. Whatever the case may be, comparison shopping will be a valuable tool.
- Disciplinary actions – Has the attorney ever been disciplined by the Board of Professional Responsibility of a state bar? This is perhaps the clearest indication of problems. There are also individuals who falsely claim to be licensed attorneys, and it is easy to check the licensure of attorneys through the local bar.
- Community reputation – Has the attorney established a good name for him- or herself in the community? If the attorney being assessed has a sterling community reputation, chances are it was earned through hard work.
- Client references – A strong reference from a friend or colleague is often the best indicator of whether an attorney is reputable.
- Focus of practice – There exists within immigration law a variety of subspecialties: employment, family, asylum, deportation, etc. It is wise to consider choosing someone who possesses a strong background in representing people with cases similar to yours.
- Immigration-exclusive practice – Many attorneys list immigration among the variety of the types of matters they are capable of handling. It is difficult enough for full-time immigration attorneys to remain up-to-date on all of the developments in the practice area, so trying to be a top-notch immigration attorney while balancing other practice areas is nearly impossible. Though it is possible to be a good immigration attorney while being competent in another practice area, be wary of those whose practice incorporates a litany of claimed specialties.
- Years of practice – Many aspects of immigration law is unwritten, so the longer that an attorney is in practice, the better that attorney’s instincts become. The opposite, however, can also be true. Some attorneys who have been practicing for many years may become lazy with regard to keeping abreast of the latest changes. Some of the worst immigration attorneys are the longest tenured.
- Attorney-paralegal ratio – A common method for keeping costs down for immigration attorneys is by hiring paralegals and legal assistants to perform the work of immigration attorneys. In some markets, this is done out of necessity; without keeping the ratio high, clients in that market cannot afford to hire an attorney. It is important, however, to understand exactly what is being paid for. Some of the most expensive immigration firms have extremely high ratios, on some occasions having as many as ten paralegals for every attorney. A lower ratio of one to two paralegals per attorney could reflect a firm that is not being overloaded with work. It could also be indicative of an attorney who actually knows what is happening on his or her cases and could have time for one-on-one interactions with his or her clients.
- Caseload – Is the prospective attorney taking on so much work that it is almost impossible to believe that cases are being properly handled? Too many attorneys do not know when to stop taking on additional work or hire more attorneys and staff.
- Use of technology – Immigration law, perhaps more than any other area of law, has been affected by the implementation of technology. Technology affords lawyers who use it properly to deliver legal services with better quality and often at a lower cost.
- Board certification – There are a few states which certify attorneys in the practice immigration law, and if a prospective attorney practices in one of the states that offer certification, it is a good practice to check. While not a guarantee, it can undoubtedly be an indicator of the quality of service he or she provides.
- Educational Background – Though it is possible for a good attorney to have come from a mediocre law school or for an inadequate attorney to have graduated from an Ivy League school, the law school the attorney attended can still be reflective of the person’s ability to achieve.
- Publications – Attorneys who write prolifically about their practice area tend to be more informed about their area of law. The ability to achieve publication also indicates that the attorney’s expertise is respected.
- Rankings – There are a few publications that interview attorneys and list those with the best reputations in their specialty and geographic location. A few lists are essentially advertisements, ranking attorneys based largely in exchange for advertising fees. Some publications do have good reputations and are seen by other attorneys as credible. Some attorneys even consult these publications when determining an attorney to whom they will refer a matter. Some of the publications and websites that meet this test are Best Lawyers in America/U.S. News and World Report, Martindale Hubbell, Who’s Who in Corporate Immigration Law, SuperLawyers, Chambers and Partners, and Avvo.
- Promotional Materials – It is a good idea to pay attention to the marketing materials utilized by a prospective law firm. Whether the materials appear professional and polished or seem unprofessional can be indicative of how the firm will present itself, and by extension its clients, to USCIS.
- Conflicts of interest – Inherent conflicts of interest often exist in immigration law, particularly in business immigration matters in which they assist both an employer and employee simultaneously. Generally, this is not an issue, but it should be treated carefully if the interests should ever diverge, such as when an employer and employee begin having problems getting along. In such situations it may be in the best interest of the person to hire his or her own attorney to provide independent advice when an employer’s immigration attorney is filling a case on the doctor’s behalf.
- Personality compatibility – An experience with an attorney goes beyond the experience and competency of the attorney. The “bedside manner” of an attorney can have a great influence on the overall experience. It is best to find an attorney who really seems to care about you and your case.
- Promising too much – There are attorneys who, after a long career, claim that they have never lost a case. Such promises of success from a prospective attorney should be a red flag. Attorneys who truthfully present the risks associated with a case are far more valuable. Additionally, when hiring an attorney, caution should be exercised if the attorney promises to have influence with government, because this is not the case. Furthermore, attorneys who are worthy will stand on their own accord, so it is a good practice to beware of attorneys who speak too negatively regarding the competition.
- Engagement letters – It is always wise to carefully read the fine print in engagement letters. Some attorneys include a great deal of “legalese” and one-sided provisions, which should be cause for concern. In contrast, it is a better idea to hire an attorney who provides an agreement written in plain language with even-handed provisions.
- Local v. national – The location of an immigration attorney is not as important as it is with most fields of law. Being strictly federal in nature, immigration law is essentially the same nationwide; an attorney practicing in one state is operating within the same system as attorneys in every other state. Also, immigration law is almost entirely administrative; most petitions are submitted by mail, negating the necessity for an immigration attorney in an immigration matter to make a personal appearance. If the need for a local attorney were to arise, checking with the local attorneys’ activity in AILA or the IMG Taskforce should be indicative of their reputation.
- Language skills – Some clients who are not native English speakers may feel more comfortable with an attorney who is fluent in their language. Attorneys who train in the United States must have excellent English skills, so this is not usually a major issue.
- Ethics – It is never beneficial to utilize the services of an attorney who instructs his or her clients to lie or otherwise act dishonestly. Not mentioning the obvious morality issues this would raise, acting on these instructions can result in jailtime and potential lifetime banishment from the United States.
What can I do if I just cannot afford a quality immigration attorney?
Costs will prevent many from realistically being able to hire an immigration attorney. It is becoming more common for attorneys to “unbundle” their legal services, offering “a la carte” legal work. In lieu of handling a case from start to finish, an attorney will prepare only parts of the case or simply provide the client with the attorney’s expertise. An attorney who practices this may be flexible with providing clients with the precise amount of expertise the client needs and can afford. Though the practice is still controversial in some segments of the legal community, the American Bar Association among other organizations have embraced the new concept.
Another course of action for attorneys is to work with pro bono legal organizations within their communities and accept a limited number of no- or reduced-fee cases. There is generally a screening process that needs to take place by one of these community organizations, so that the organization can determine that the case in question is appropriate for a referral to a pro bono attorney. This is usually reached by determining whether the client is actually unable to play.
What should I do if my attorney mismanages my case?
Unfortunately for many, deciding what to do after hiring a bad attorney is more than just theoretical, and determining a course of action can be dependent upon the facts of his or her case. The first step should be determining whether the problem was, in fact, the fault of the attorney, or if the cause of the problem was beyond the scope of the attorney’s control, as is common when dealing with USCIS backlogs.
If the attorney really did make mistakes, but those mistakes were honest and not related to deeper problems of competency, it may be best to work with the attorney in finding a mutual resolution rather than switching to a new law firm. If the attorney’s competency is in question, then the client should receive a second opinion from another attorney. This should be done cautiously, though, as many immigration attorneys are unwilling to accept cases from people who fired their previous attorney. This is due to the negative mindset created by the initial experience, which can cause people to never be satisfied with an attorney. An alternative explanation is that people owe their previous attorney compensation and are switching firms simply to avoid paying. While many have legitimate reasons for making the change, a practical way to avoid garnering a “damaged goods” label is to select the first attorney carefully.
If a person’s case is grossly mismanaged by an attorney, there are two ways of rectification. The individual can either file a complaint with the board of professional responsibility for the bar organization that licenses the attorney or sue the attorney for legal malpractice.
The most effective way of improving the chances of a successfully handled case is to become an educated consumer of legal services. This includes learning as much as possible about immigration law, so that both client and attorney can work together to achieve the best possible outcome for the case. It will also help ensure that the attorney who really knows his or her filed of practice.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.