As is well-known, most employment and family cases involve a two-step process: 1) the submission of a petition to USCIS for approval; and 2) the completion of a visa interview at a US consulate or embassy outside the United States. So why is it that many lawyers do not provide legal support for the visa interview?
This issue has become more acute as consular officers have become more aggressive in questioning the bona fides of the underlying petition. While they are not supposed to readjudicate the approval – substitute their opinion for USCIS’ – they can find “new, material” information to justify the referral of the petition back to USCIS for revocation. This aggressive questioning has become more pronounced since the issuance of the President’s Executive Order to protect US workers. In light of the executive order, the Department of State updated its guidance to consular officers in adjudicating nonimmigrant employment petitions. Specifically, DOS has instructed consuls to be mindful of protecting US workers and the possibility of fraud and abuse when adjudicating petitions. Already, we have heard of “patriotic” consuls referring petitions for revocations after telling visa applicants that their US employers should be hiring Americans.
Another trend is the revisiting of previous visa applications: were misrepresentations made about the purpose of the visit? Did the applicant say they were going to Disneyland, and then 2 weeks after arrival arrange for a job in the US? And now is applying for the employment visa? The red light may not only flash for the consul, but should flash for the lawyer as well. The potential consequences – a permanent bar from the United States – should dispel any inertia or passivity in approaching the visa process.
So why is it that many immigration lawyers explicitly stipulate in their agreements that they will not represent the applicant at the visa stage, or assume that the visa will be issued? Visa applicants from all over the world approach us after refusal at the consulate, advising that their lawyer “disappeared” after the USCIS approval, did not help them prepare for their visa interview, or just told them to look at the website of the consulate and go for their “visa stamp”. These phone calls to our firm have become more frequent over the past few months as the interviews have become more akin to interrogations and investigations.
Bottom line: do not assume that just because USCIS approved your petition that you are entitled to or will receive the visa. If your lawyer has “abandoned” you or taken a DIY approach, then contact us. The visa process should be taken seriously. Not to do so can have tragic, irreparable consequences.