I pit my immigration lawyer

The BBQ Pit
21

Dr. Drake, I’m not an attorney (immigration or otherwise) but I am British, immigrated on a 100% legitimate visa, been married to a US citizen (still am, although we’re divorcing), and have a Green Card. So, I’ve been through many of the hoops that have been described by others in this thread.

Just based on your OP, I’m afraid that I get the very strong feeling that Monty’s take (and by implication, Bricker’s) is the correct one. Since I’m not a lawyer or SDSAB member (and thus have no legal cred on this board to risk), I’ll go with my gut and say that if the facts are as you state in your OP, not only is your attorney leading you down a path that will not get you your desired result, but that he is also potentially exposing you and your boyfriend to fraud charges. That’s in addition to milking your bank account while he’s doing it, of course.

IANAL, but I would recommend a getting a second legal opinion from a competent immigration attorney. Just for one hour, sit down and show him/her the paperwork, and outline truthfully what Attorney #1’s game plan is. I suspect that you will leave that meeting with a newfound sense of just what you’re up against, together with the contact # of an INS[sup]*[/sup] agent which you’ll want to use when you drop the dime on your current attorney.

Now, I’m not blaming you, Dr. Drake, any more than I blame the stereotypical Mexican immigrant who crosses the border illegally. When you’re painted into a corner by bureaucratic idiocy, you tend to consider desperate measures. Most folk who make the illegal crossing don’t actually have any realistic possibility of immigrating legally on any timescale that will feed their family, but that’s another debate. By the sounds of it, your BF may not have the a skillset that qualifies him for immigration on his own, and being British he isn’t eligible for the Diversity Lottery. Since you guys can’t get married (and I want to say that I personally wish that you could, although I don’t particularly blame Clinton for that), you don’t get to sponsor him “personally” (although others upthread such as Shayna and Anaamika have pointed out that that isn’t exactly a slam-dunk for straights either).

So, your only option appears to be to get him sponsored by a business. I’m assuming that if that was going to work for your BF on the open market, he’d have offered his skills to a genuine, pre-existing company (the bigger, the better IME). If the only way this is going to work is by you creating a dummy corporation to pretend to pay him money while he’s really employed by someone else, YOUR PLAN WILL FAIL. Your attorney knows it, and so do I. He won’t tell you though, and I just did. (I’m aware that I wasn’t the first to do so, but I have undoubtedly had more first-person warm-body-in-question dealings with the INS than either Monty or Bricker).

The INS is not stupid (although, this being the Pit, I’m allowed to say that many of their employees are mind-numbingly incompetent, slow, and just plain nasty). If one could create a dummy corporation that requires employees with specific skills (say tequila-making) – and not be found out – then the coyotes would be out of business. However, if you claim that you’re paying your BF $50k + benefits, real money will need to change hands. Your corporation – with exactly two employees, one of whom is a sponsored immigrant – will be audited by the IRS, and then you’ll wish that you only had the INS to deal with, because they’ll come after you. Your BF will be deported, and to be honest your best bet at that point probably would be to skip the US.

[BTW, are we sure that the UK gay partnerships – which are in most ways considered identical to marriage – actually count as marriage for purposes of immigration to the UK? You’ll need to get this ruled on before you make any jump.]

The reason that your attorney is now letting you know that your BF won’t get a general work permit (valid for any job) is that such a thing would invalidate any concept of “sponsorship”. Any “consulting” that he’s permitted to do must be in addition to the $50k+ that you’ve guaranteed to pay him. Oh, and if you can’t pay him the money, he’ll almost certainly get on the list for deportation. He won’t even be treated with the leniency sometimes found for those that have overstayed a visa; it’ll be apparent that the entire scheme was a fraud from the get-go. You risk jail time, and your BF may find himself with a lifetime ban from entering the US for any purposes (if he’s lucky, it’ll be only a 10-year ban).

I’m sorry to sound so negative, Dr. Drake. The entire system sucks big time and needs a complete overhaul (but IMHO not in the direction that is most likely to happen). US citizens tend to have a rosy-colored view of what is in fact an imaginary “legal” immigration process, where all you have to do is get married to get a Green Card almost immediately, and those who want to immigrate just have to stand in the right line rather than queue-jumping.

On the plus side, I’m hoping that the OP will come in and explain how the scheme is not fraudulent, and then I’ll have egg on my face and we’ll all have a jolly good laugh. That’s OK; I like eggs, and don’t have the SDMB reputation of a Monty or a Bricker on the line. I’ll be happy to be wrong!

Apart from all of the above, the attorney’s omissions and misspellings described in the OP are grounds for immediate action in any case. DO NOT MISSPELL NAMES ON FORMS SUBMITTED TO THE INS. If it’s your attorney’s fault in the draft sent to you – and I think that in the case of “San Diago” it’s rather likely – you need to get do-overs for free. DO NOT BACK DOWN ON THIS.

[sup][/sup]I still call them the INS just to piss 'em off. Plus, in their last letter to me in 2005 they referred to themselves as the INS :smack: .*

22

Well. Looks like I stand corrected, then, as well as considerably better-informed.

How about adoption? Would adoption work?

23

Thanks, Antonius Block. That pretty much confirms my worst fears. Yes, the corporation we have set up is for this purpose only. I am not planning to defraud the government, as we fully expect the corporation to function and employ my partner (in other words, he’d be self-employed, and money coming in would come through the corporation, which essentially means paying double taxes, btw). I’ve already spoken to the IRS about it and they’ve been quite helpful. On the other hand, if it isn’t legal, if it’s fraud, I’d really really rather not do this. If this isn’t going to work at all, I’d rather know and make other plans.

Here is my correspondence with the lawyer on this point, boiled down a bit:

The letter-to-be-submitted says “As [job position], [name] will be remunerated in excess of $50,000.00 per annum, conditioned on the approval of our petition” etc.

I asked the lawyer: “I expect that it is included as part of the requirement for the visa, but as I am sure you are aware [business] does not at the moment have a dedicated clientele. If we are unable to fulfill this $50K / annum, as the IRS will surely note, what happens?”

He answered: “It is a projection and as executive of [company], [name] is not required to draw a salary. In addition, the visa category provides for ‘agency relationship’ between the company and the foreign national, allowing for distribution of earnings based on a percentage agreed upon.” You will note that this does not exactly answer the question, which was a red flag.

Monty and Bricker, I actually agree with you to a point. I am trying to do this in a way that does not violate the law; the lawyer is supposed to help us navigate the maze, not circumvent it. It has been presented to me as “these are the hoops you need to jump through in order to meet the requirements that will get him a visa,” not “this is what you need to do to con the government into giving you a visa.”** Mr. Mallard** actually does have the skills to get a job that would grant him a visa, but his industry doesn’t have the giant corporations that do that as a matter of routine. This is another reason why we think (/delude ourselves into thinking) that our corporation is legitimate.

Kaylasdad99, adoption wouldn’t work, again because it’s fraud.

I’m now searching for an immigration lawyer who will give me a second opinion. I talked to one on Thursday, but he was such a rude jerk that it was hard to tell if he was competent or not.

24

You’re creating a corporation for the sole purpose of having it sponsor your boyfriend? Right. I can see the BCIS saying, “Oh, yes, that’s something we, ourselves, advise people to do.”

Next, say you do manage to get him over here with a stipulated salary for whatever job. What’s your plan when you have a falling out and he goes to the appropriate government office for sexual harassment, etc.?

Now, I’m not saying any of this is going to happen. I’m genuinely curious about the question I just posed.

25

Forgot to mention something, and I’m sure the immigration legal beagle types on the board can put the exact information; however, IIRC, to sponsor an adopted child into the country, the adopted child must be a child under a certain age.

p.s. I have had both personal and professional dealings with the INS/BCIS/Whatever Other Alphabet Soup They’ve Used.

Standard Disclaimer: I am not a lawyer either.

26

Dr. Drake, I predict you are going to have a really hard time getting this petition approved. There are all sorts of red flags; a hitherto nonexistent corporation, with no clients and a single employee, who is the beneficiary of a work visa based solely on his relationship to this hitherto-nonexistent corporation with no clients?

Now you’re certainly not the first person to try an arrangement like this, but I’m betting it’s going to be an uphill battle, to say the least, and the financials are going to be audited by USCIS quite heavily. I mean I sympathize with your situation, but this is just not the sort of thing U.S. immigration laws were designed to enable.

Is your lawyer a member of AILA? That’s one basic test for whether he/she is serious about practicing immigraiton law. Employment-based immigration law is a rather specialized niche field, and there are a lot of people out there who practice it very badly. If I were you, I’d definitely get a second opinion, and make sure it’s from someone who has handled a large number of complex employment-based immigration cases, preferably for people with similar strategy in mind. The strategy this guy is proposing is risky, to say the least.

(IANAL, but I am an employment-based immigration law paralegal, and I’ve seen people try to pull off some really wacky stuff. Sometimes it works, sometimes it doesn’t.)

27

I’m gonna have to buy a few smilies; I’m finding myself being far too parsimonious with them lately.

28

Thanks again for the replies. I’m really grateful for the feedback. I’m neither a lawyer nor a businessman, and frankly I’m surprised at how badly this plan is coming across. It’s eye-opening. I’m withholding some of the specifics just because this is the internet, but I’m starting to wonder about this lawyer (who isn’t a member of the AILA, thanks for the link, Eva Luna). He came recommended by a friend who had used his services.

Monty, we’ve thought about the issues you address. Not sexual harassment (per se), but combining relationship with employer / employee, and specifically how to avoid that situation.

The corporation isn’t for the sole purpose of sponsoring him. It is also to employ him once he gets here. He really does have unique skills that can make it work. I don’t think I can give specifics without compromising anonymity, but there are potential clients lined up etc. That doesn’t mean it’s necessarily the right thing to do, I just want to make it clear that we expect it to be a real, functioning business, and not something we dissolve on the way home from the airport.

Again, I’m not trying to break the law. I’m not trying to bend the law. I’m trying to contort myself and my partner into a position where we fit the one slim aspect of the law that allows him entry. But maybe that’s not possible, and maybe I’m being led down the garden path to fraudland. Sort of sounds like it. Maybe I’ll start a new thread in the coming months, “help the academic find a job in Canada.”

29

I’ve spoken with someone I know who is an attorney with ICE. She says she doesn’t have enough information to say anything too specific but that:

  1. Creating a company to get someone a visa is a long and expensive process, that may not work. She said (as best she could just based on my conveying this story to her) that it probably isn’t illegal.

  2. If your boyfriend is eligible for an H-1B visa that would be faster and less expensive.

30

there is a special place in hell reserved for the INS and their minions. of course, so called INS lawyers are lower than that.

there are some good immigration lawyers doing real legal work. in my experience most are blood sucking parasites that do absolutely nothing more than fill out standard forms and then promise desperate clients somehow it will magically work out.

dr drake i’ve got a five bell alarm ringing that the scumsucking weasel did not lay out the challenges up front and more so keeps coming back with new requests.

best of luck

31

I have a friend whose practice is primarily deportation, often fixing someone else’s poor work or trying to. From what he’s told me and from what I’ve observed from conservations with other people, a lot of immigration lawyers cut too many corners. The problem seems to be that as an area of law, it really is very complicated and the rules and procedures often change. The people who most require help are those who are least able to afford it and those least likely to know if they are being screwed.

Many immigration firms will have the support staff do as much as possible, and will deal very little with the client. They seem to take almost any case no matter how hopeless it is and most likely won’t tell the client what the odds are.

The other problem with immigration law is that the forms and instructions are rather complicated and poorly worded. The procedures are arbitrary and there doesn’t seem to be any transparency and many of the decisions are left to the examing officer’s discretion which means that it ultimately becomes a crap shoot as to whether something will be approved or won’t be.

Add in the fact that the INS was somewhat underfunded for years, and then after 911 was part of a bureaucratic shuffle that moved it to DHS, and it isn’t a surprise that it has become a quagmire. In a sense, this is an agency that most voting Americans don’t care about because it doesn’t affect them in the slightest so they don’t have an incentive to become more efficient and process someones paperwork quickly.

To give you an idea of how unresponsive they are, you can’t actually call them to to ask a question. The 1-800 number that you can call is manned by call center employees who really don’t know what they are talking about. If you need to see someone, you have to schedule an appointment through Infopass. Good luck. When my wife needed a stamp in her passport extending her Green Card so she could travel, it took about 100 tries to schedule an appointment through infopass.

32

The H-1B quota for fiscal 2007 was met at the end of May of this year for most applicants, and the end of July for applicants with advanced degrees from U.S. educational institutions. There will be no H-1Bs available until Oct. 1, 2007 (though you can, and should, file an H-1B petition up to 6 months in advance of its initial effective date). Unless Congress passes some version of the comprehensive immigration reform bill, that is, or otherwise increases the H-1B quota - which may happen, but I wouldn’t bet on it.

33

That doesn’t surprise me. My friend has ballparked the amount of time it would take to set up a corporation and get someone a visa to work with said corporation at around 4 years, although she hasn’t seen this thread and made the disclaimer that she was speaking very generally with an extremely small amount of information.

So trying to get an H-1B Visa could still get Dr. Drake’s boyfriend a visa much quicker than this process.