Philippine and PRC Nationals Unjustly Targeted By INS For Unfair Treatment

A number of PRC and Philippine nationals immigrate to the United States through the L-1 to employment based visa process. The Immigration and Naturalization Service (“INS”) has unjustly targeted citizens of the People’s Republic of China and the Philippines for unfair treatment. Specifically, those who hold an L-1 non-immigrant visa as an executive or manager of U.S. affiliates of overseas companies and later apply to become lawful permanent residents or to get their “green cards.”

An L-1 non-immigrant visa is available to those persons entering the U.S. to run or manage a U.S. affiliate of an overseas company. To qualify they must: have been employed by the overseas company for at least one year in the last three years; they must continue to work for the U.S. affiliate in a managerial or executive capacity; and both the U.S. affiliate and overseas parent company must be active. This visa can be extended for up to seven years.

The requirements for an L-1 visa are almost identical to an employment based petition in the first preference category, therefore, it is an effective way for an executive or manager to obtain a “green card.” Most importantly to qualify for this employment petition, the manager or executive must have worked for the overseas parent company (or an overseas affiliate) for at least one year out of the last three years. By immigrating this way, one can avoid the lengthy and uncertain outcome of the labor certification process of the Department of Labor.

There are many fixers, storefront operators and other unscrupulous people, who generally charge between $750.00 and $1500.00 whose fees appear cheap operating in Alhambra and Miracle among others. These fixers usually operate without an attorney, or with lawyers who merely sell their signatures and take no responsibility for the case. These fixers are filing hundreds of applications and because of the unprofessional and shoddy nature of the work and in many cases, fraud, the INS has become suspicious, delaying every case for an investigation.

The INS says that it must verify that there truly is an overseas parent company. However, this is a convenient way for the INS to shelve an application and let it sit without making a decision. In my experience I have seen instances where a file has been sitting anywhere from one to three years.

The law requires that the INS adjudicate a case in a reasonable time. If a case has been pending for a while the normal procedure is to submit a “drop off” inquiry and wait sixty days. When the INS does not respond, then one can submit a supervisor review request and wait again. If the case is represented by an attorney, these are the basic steps the lawyer would take to inquire about the case. If too much time has passed, then the attorney may attempt telephone calls to the supervisor to see what is happening with the case.

If all of this has been tried and the INS still has not or will not make a decision on the case, the attorney should inform the INS that if a decision is not forthcoming, suit will be filed for relief in the Federal District Court. Sometimes, this will prompt the INS to decide. If it does not work the attorney can go ahead and file suit in Federal District Court, requesting that the Court order the INS to make a decision on the case.

People who use fixers to file these types of applications create serious problems for themselves when they are ready to apply for a green card. Reputable attorneys care about the applications and documentation that they submit to the INS on the client’s behalf. It is all done with the end result in mind: getting the green card. Fixers believe there are plenty of suckers. They are not interested in the case; their only interest is making money. Therefore, they do the least amount of work possible.

All cases are important and deserve to be treated with dignity and respect. If the INS is not willing to treat applicants properly, they need to know that their lawyer will fight to get the INS to do its duty under the law and treat them fairly.

If you are not represented or if your present attorney is not willing or able to fight for you, you should consider finding a lawyer with experience and a proven track-record in getting the INS to do its duty and to treat you fairly.