(This article was originally published by Siskind Susser and can be found at http://www.visalaw.com/hal.html.)
Do you need a lawyer?
The old saying “He who represents himself has a fool for a lawyer” applies to immigration law like many other types of legal matters. Immigration law, particularly American immigration law is one of the most politically divisive areas of the legal system and it is therefore not surprising that it has grown incredibly dense and is constantly changing. No fewer than three major agencies administer the US immigration system and dozens of other agencies play a role. Many people turn to agencies like the US Citizenship and Immigration Service and the US Department of State to determine how to immigrate to the US.
While websites and concerted efforts by these agencies to provide better information to the public are starting to bear fruit, it could be a grave mistake to rely on government agencies for legal advice relating to immigrating the US. Why? Consider the following:
- They have no responsibility or liability for information they provide.
- They are enforcement agencies and the mindset at the agencies is often to keep out as many people as possible.
- Information officers are frequently not adequately trained in immigration law and do not keep up with the latest developments.
- Individual case situations differ dramatically and agencies do not have the resources to properly assess your case and advise on how to proceed.
Even if you can manage to succeed filing the application yourself, your lack of experience could lead to mistakes that can be costly in terms of time and money. If you have to hire a lawyer later, your mistakes may limit your options and immigration lawyers are likely to charge more to clean up the mess.
A good immigration lawyer should be able to give you an honest and thorough assessment of your case and be able to explain the options that are available to you based on not only the current law but changes that are in the legislative and judicial pipeline at any given time. The lawyer can then work with you to prepare your case and represent you in front of the administrative agency handling your petition. The lawyer should be able to explain to the government agency why your case meets the requirements of the law and if problems arise, the lawyer often has additional resources available to help resolve the issue or can prepare your case for an appeal.
What about people that call themselves “immigration consultants”?
In most states, people who work as immigration consultants are violating the law by practicing law without a license. Because these individuals are operating illegally, their work is not regulated and you do not have the same recourse available to go after someone who is dishonest or incompetent.
The USCIS does not recognize immigration consultants and will not allow them to intervene on your behalf should a problem arise in your case.
Many immigration consultants insist that they are merely assisting people in completing forms. But even the USCIS has warned the public that the process of applying for a visa or citizenship is more than just form-filling. There are regulations behind most of the questions asked on USCIS forms and questions that may seem straightforward are actually designed to elicit information relating to a complicated matter of law.
What to look for in your lawyer
There are a number of factors to consider when hiring an immigration lawyer and with more than 7,500 immigration lawyers practicing in the US, the process of selecting just the right lawyer can be difficult.
The following list of factors may prove helpful in making your decision:
- AILA member – Is the lawyer a member of the American Immigration Lawyers Association? AILA is probably the immigration lawyer’s best resource for up-to-date information. While being an AILA member is not a sure sign of quality, it may indicate that the lawyer is keeping up with this rapidly changing field of law.
- Fees – How does the attorney set his fees? Most immigration lawyers work on a flat fee basis, though in many matters, hourly billing or contingency billing may be done. If an attorney prices way outside of the market – either on the high of the low side – this should be a source of concern. The lawyer may not have any idea how much work is really involved in the case. Or the lawyer may simply be attempting to gouge. A lawyer who quotes a price too low may also be able to price that way because the work is being pushed down to the level of a legal assistant or very junior associate. There are great lawyers who charge more and lawyers who operate extremely efficiently who can charge less. But comparison shopping will serve you well.
- Disciplinary actions – Has the attorney ever been disciplined by the Board of Professional Responsibility of the state bar? This is an obvious sign of problems. There are also people who falsely claim to be licensed attorneys. The local bar is also the place to check that the attorney is licensed and in good standing.
- Community reputation – Has the lawyer established a good name for himself or herself in the community? If your attorney 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 a lawyer is up to snuff.
- Focus of practice – Within immigration lawyer, there are a variety of subspecialties: employment, family, asylum, deportation, etc. Consider going with a lawyer with a strong background in your particular type of case.
- Immigration exclusive practice – Many lawyers list immigration law as one of a variety of types of matters they handle. It is tough enough for a full-time immigration lawyer to keep abreast of all of the developments in the practice area. It is nearly impossible to be a top-notch immigration lawyer while trying to balance being an expert in many other practice areas as well. While someone can be a good immigration lawyer and also be very competent in another practice area, watch out for lawyers where immigration is one practice area on a laundry list of claimed specialties.
- Years in practice – Much of immigration law is unwritten and the longer one is in practice, the better one’s instincts become. But the opposite can be true as well. Lawyers who have been practicing for years may become lazy about staying up to date on the latest changes. Some of the worst lawyers practicing immigration law in this country are the ones who have been around the longest. So try and strike a balance.
- Lawyer-Paralegal ratio – One of the ways immigration practices are attempting to keep costs down is to hire paralegals and legal assistants to do much of the work that immigration lawyers used to do on their own. In some markets, this may be the only way to keep costs low enough for people to afford to hire a lawyer. But you should know what you are paying for. Some of the most expensive immigration firms still staff with extremely high ratios of paralegals – sometimes as high as ten paralegals per attorney. A more modest ratio of one to two paralegals per attorney may mean that the firm is not too overloaded with work and it may mean that the attorney you thought you were hiring actually knows what is happening on your case and has the time to speak with you about your case.
- Caseload – Is your lawyer taking on so much work that there is no way cases can properly be handled? Too many lawyers don’t know when to draw the line and either say no to taking on additional work or to make the decision to take on more attorneys and staff.
- Use of technology – Technology has revolutionized the practice of immigration law probably as much as any other area in the legal profession. Does your attorney use email? Does the attorney have the latest research and case management software? Does the attorney provide electronic newsletters and email alerts to inform clients of breaking news? Does the firm have an extranet that allows you to log in to a private and secure website to see what is happening on your case? Does the firm file applications electronically? Lawyers who master technology deliver legal services with better quality and can often leverage technology to deliver legal services less expensively.
- Communication – The number one complaint against lawyers in this country is not poor work quality. It is failing to communicate with their clients. You are paying a lot of money to hire a lawyer and it is your right to expect to be kept informed of developments and have your calls and emails returned in a timely manner. On the other hand, there is still such a thing as excess and calling your lawyer every day to find out what is happening on your case is not necessarily fair either.
- Board certified – A few states certify lawyers in the practice of immigration law. If your lawyer practices in a state that does, make sure he or she has this credential. It is no guarantee of quality, but it can certainly be an indicator.
- Educational background – While many fine lawyers have come out of mediocre law schools and lousy lawyers come out of the Ivy Leagues, where a lawyer went to school can still be an indicator of a person’s ability to achieve.
- Publications – Lawyers who write frequently about their practice area tend to keep themselves better informed about their area of law. The ability to get published also may indicate that the lawyer’s expertise is respected.
- Promotional materials – Pay attention to a law firms marketing and promotional materials. Are they professional and polished or do they make the firm appear to be “fly-by-night.” How the firm presents itself to its clients and potential clients may be an indicator of how the firm will present itself – and, consequently, you – to the USCIS.
- Conflicts of interest – Immigration lawyers often have an inherent conflict of interest, particularly in business immigration matters where they are assisting an employer and employee at the same time. Most of the time this is not a problem. But be careful to pay attention to this fact if the interests should diverge such as when an employer and employee start to have problems getting along.
- Industry focus – A number of immigration lawyers focus on particular types of employers and have become particularly adept at handling visa matters in their industries. For example, a small number of immigration lawyers in the US represent the bulk of physicians applying for visas because of the peculiar difficulties present in these types of cases.
- Personality compatibility – Your experience with your immigration lawyer is more than just the result of the lawyer’s experience and competency. A lawyer’s “bedside manner” can mean a lot at the end of the day to how the overall experience goes. Find a lawyer who really seems to care about your case.
- Promising too much – There are actually immigration lawyers out there who swear they have never lost a case even after a lengthy career. Be nervous about lawyers who promise success. A lawyer who honestly presents the risks is worth a lot more. Likewise, be very weary of attorneys who claim to have special influence with the government. Also, beware of lawyers who speak too negatively of the competition. If the lawyer is worthy, they can stand on their own record rather than tearing down the record of competitors.
- Engagement letters – Read the fine print in your engagement letters. Some lawyers load agreements down with so much “legalese” and one-sided provisions that it should give you pause. Consider using a lawyer who provides an agreement that is written in plain English that appears to be even-handed.
- Local v. national – Unlike most fields of law, the location of your immigration lawyer is not nearly as important as you might think. Immigration law is strictly federal in nature. That means it is basically the same across the country and a lawyer in one state is practicing under the same system as in every other state. Immigration law is almost entirely administrative as well. That means that most petitions are submitted by mail and personal appearances by an immigration lawyer are becoming less and less common.
- Language skills – Some clients who are not native English speakers may feel more comfortable working with a lawyer fluent in their language.
- Ethics – Run as fast as you can from lawyers that tell you it is okay to lie or otherwise act dishonestly in your case. Aside from the obvious questions of morality, you are risking jail time and potential lifetime banishment from the United States.
What do I do if I just cannot afford a quality immigration lawyer?
Many people will just never realistically be able to hire an immigration lawyer due to costs. There are sometimes still options that will allow you to utilize the services of an immigration lawyer. Many lawyers work with pro bono legal organizations in their communities and accept a limited number of no or reduced fee cases. Keep in mind that you will typically need to be screened by one of these community organizations to determine that your case is the type of case that is appropriate for a referral to a pro bono lawyer. You will usually be screened as well to determine whether you truly are unable to pay.
More and more lawyers are also offering to “unbundle” their legal services and are offering “a la carte” legal work. This means that instead of handling a case from beginning to end, a lawyer will prepare only parts of the case or simply provide the client with the lawyer’s expertise. So perhaps you want to submit your green card application yourself but would like to consult with an attorney and have an attorney review your application. A lawyer who unbundles their services might work with you to provide just the amount of expertise you absolutely need and can afford. The practice is still controversial in some segments of the legal community, but organizations like the American Bar Association are openly embracing the concept.
What to do if your lawyer mismanages your case
Unfortunately, the question of what to do when you have hired a bad lawyer is more than just theoretical for many. The answer largely depends on the facts of your case. First, determine whether the problem is really the lawyer’s fault. In many cases, people complain that their lawyers are ineffective when, in fact, the problems are beyond the lawyer’s control. This is especially true with USCIS backlogs.
If your lawyer really has messed up but you think the mistake is honest and does not reflect deeper problems relating to competency, it may be easier to work with the lawyer in resolving the matter than in just switching to a new law firm. If you question the competency of your lawyer, you may want to get a second opinion from another attorney. Beware, however, that many immigration lawyers do not accept cases from people firing previous attorneys. Why? Many people simply have a negative mindset and will never be satisfied with their lawyers. While many people have legitimate reasons to change lawyers, you really want to avoid garnering a “damaged goods” image and make sure you choose carefully the first time.
If your lawyer grossly mismanages your case, you have two remedies. You can file a complaint with the board of professional responsibility for the bar that licenses your attorney. And you also have the option of suing the attorney for legal malpractice.
At the end of the day, making yourself an educated consumer of legal services will improve your chance for your case to managed successfully. That means learning as much as you can about immigration law so that you can work with your lawyer to achieve the best solution possible for your case. It also will help you make sure that you are hiring a lawyer that really knows their stuff.