The Relationship Between Unauthorized Practice of Law and Unauthorized Employment

There are people who confuse being entrepreneurial with being parasitic. Where an opportunity arises and there is significant demand and desperation, there are people who will, and have, taken advantage of those who wish to obtain such an opportunity.

Take for example this year’s H-1B lottery debacle, wherein more than 408,000 H-1B registrations were filed for the same 96,000 beneficiaries, leading USCIS to conclude that “several dozen small technology companies” colluded to submit multiple registrations to increase their odds of selection in the H-1B lottery. USCIS has been actively engaged in investigating these companies and beneficiaries.

We are now seeing this with the sudden increase of O-1, NIW and EB-1A consultants offering immigration coaching and mentoring services on LinkedIn, specifically focusing on how to “build a profile” to be eligible for an O-1, NIW or EB-1A. What are their qualifications? Simply one circumstance: being the beneficiary of their own O-1, NIW or EB-1A petition, which in most instances was prepared and filed by a qualified and experienced immigration attorney. These individuals are taking advantage of the concern and desperation being experienced by individuals who were not selected in the H-1B lottery, and/or otherwise subject to the extensive delays in the availability of immigrant visa numbers because of the per-country restrictions.

Why do I take issue with this? First and foremost, these individuals are not trained, licensed or experienced business immigration attorneys and are clearly engaged in the unauthorized practice of law. Second, in some instances the unauthorized practice of law can result in unauthorized employment.

What is unauthorized practice of law?

According to the American Bar Association (ABA), unauthorized practice of law (UPL) “manifests in a non-attorney who establishes a business to offer immigration and other legal services” which includes guiding people “on what actions to take to resolve their immigration matters,” instructions “on which immigration form or process they should utilize”, completion of “the form, possibly even suggesting specific answers” and advising “on what they could expect.”

Furthermore, the ABA states that the “practice of immigration law is defined by federal regulation as an "act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with [the Department of Homeland Security]...Preparation, an essential element of the practice of immigration law, is ‘the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers’.

USCIS recognizes the following individuals as being qualified to offer immigration advice and representation: (1) attorneys; and (2) non-attorney representatives who are accredited by the Board of Immigration Appeals. Someone whose only experience with the O-1, NIW or EB-1A is having their own petition approved is not recognized nor qualified to offer any legal advice.

These O-1, NIW and EB-1A consultants are engaged in UPL, regardless of the disclaimers they post on their LinkedIn profiles and websites. The moment an O-1, NIW, or EB-1A consultant advises a foreign national how to “build” their profile and brand, and meet USCIS criteria, they are engaged in providing legal advice. One particular non-attorney consultant wrote a book that they claim “demystifies” the EB-1A process, which they sell for approximately $150 in addition to offering their services to “coach” foreign nationals to create an EB-1A profile. Although they claim repeatedly that they are not offering legal advice, their book includes: distinctions between the different EB-1 categories with their opinion that the “bar is definitely lower in comparison” for certain categories [erroneous legal assessment]; the EB-1C requires employment as a multinational manager abroad for two years [erroneous legal interpretation]; that the EB-1A takes a shorter period of time to qualify than the other EB-1 categories; offers sample filing letters; and a claim that the final merits determination is based on establishing that a foreign national’s work benefits the U.S. economy [erroneous legal interpretation]. Contrary to their disclaimers, their book is filled with erroneous legal advice and standards.

So, assuming an O-1, NIW or EB-1A consultant offers legal advice that is more cost-effective than an immigration attorney (which is not accurate in many instances), what is the problem?

First, because such individuals are not trained, licensed and experienced immigration attorneys, they do not understand the intricacies of immigration law, which is filled with nuanced terms of art. As clear from above, this particular EB-1A consultant has misinterpreted the regulations or otherwise made-up standards that simply do not exist in the statute, regulations or case law. Their only experience with the EB-1A category is the approval of their own petition, which was prepared and filed by a qualified U.S. immigration attorney.

Second, a foreign national’s immigration record is forever–meaning mistakes made not only remain a permanent part of a foreign national’s record, but can have severe consequences. At best, a mistake made by one of these non-attorneys will result in lost fees and a rejected or denied petition. At worst, a mistake can result in the foreign national being subjected to additional scrutiny for misrepresentation or fraud, losing significant money, violating or otherwise failing to maintain the nonimmigrant status, or being subjected to removal proceedings.

Third, by convincing a foreign national who is not qualified for the O-1, NIW or EB-1A to file a petition with USCIS, they are only adding to the significant caseload and backlogs that are plaguing our immigration system. Each case filed with USCIS must be adjudicated and in comparison, to other types of petitions, O-1, NIW and EB-1 petitions are very document-heavy, meaning that there is significant evidence that must be reviewed. When a petition is filed with the skewed standards as interpreted by an O-1, NIW or EB-1A consultant that do not meet the regulatory criteria, valuable USCIS resources are misused, adding to delays and costs.

How does UPL trigger unauthorized employment?

According to USCIS, unauthorized employment is: “any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization.”

USCIS generally approves nonimmigrant petitions for employment (such as an H-1B, O-1A or O-1B) with a specific employer, for a specific role, with specific job duties, for a specific period of time. A foreign national may engage in unauthorized employment by working for a company other than the one listed on their USCIS approval notice, by performing duties or services not approved by USCIS in the petition filed by their employer, or working beyond the date authorized by USCIS regulations.

How does UPL trigger unauthorized employment? There are a number of individuals present in the U.S. in O-1A status who have now jumped into the immigration coaching and mentoring area, by writing books offering legal advice and by providing coaching/mentoring services for immigration. 

For example, two individuals who recently received approved O-1A petitions held a LinkedIn webinar offering O-1A preparation, planning and mentoring advice to other professionals in the Information Technology (IT) industry. Both individuals stated that they received their O-1As for Product Manager roles through very well-known tech companies (their profiles confirmed this information) and now they were offering immigration advice to help other Product Managers qualify for the O-1A including: whether the foreign national needed to work in the sciences or research; whether the foreign national required an advanced degree; what kind of evidence is required; and that foreign nationals can change from F-1 to O-1.

Here is the problem, it is highly likely, given their detailed job descriptions posted online, that their UPL exceeds the scope of their Product Manager employment as petitioned by the IT employers and approved by USCIS. That is, unless their respective IT employers included in their job description that they would be required to engage in providing legal advice and mentoring other Product Managers on their immigration qualifications and how to prepare and qualify for an O-1, such activities would likely constitute unauthorized employment. [Note: it is unlikely that USCIS would have approved an O-1 petition for an IT Product Manager that also included the job duty of UPL – such a duty falls outside what is normally required of an IT Product Manager.]

Engaging in unauthorized employment can result in severe consequences for foreign nationals. First, foreign nationals who engage in unauthorized employment are deemed to have violated their nonimmigrant status and failed to maintain status. Second, it makes a foreign national ineligible to extend or change their status in the United States. Third, it makes a foreign national ineligible to adjust their status to lawful permanent resident in the United States unless there is an exemption or other provision of law available. Fourth, it makes a foreign national subject to deportation or removal proceedings. Fifth, it could result in their nonimmigrant visa being revoked or a future application denied.

Keep in mind, the test for unauthorized employment is NEVER just about receipt of payment. A very common misconception held by foreign nationals is that if they don’t get paid for the work, then they are volunteering. Engaging in unpaid work is not the same as volunteering and where USCIS is concerned, if a foreign national is engaging in work that is usually performed for payment, then the foreign national must: (a) hold the proper visa classification and (b) be paid.

How would USCIS even find out about unauthorized employment? In this case, very easily – through social media. Nearly each one of these O-1A IT professionals have advertised their books and immigration mentoring services on LinkedIn, which can easily be found by searching the “#O1visa”. In addition, if these individuals are receiving payment for their immigration mentoring services, such payment must be reported on the U.S. tax returns, which must be provided if the foreign national seeks a greencard in the United States. USCIS is increasingly becoming social media savvy and many of these individuals have been very public in offering their services. It is a shame that they did not speak with their immigration attorneys before engaging in these activities, which can potentially jeopardize their immigration status in the U.S.

Conclusion

I’m not looking to denigrate anyone’s work or ability to make a living. However, providing the wrong legal advice can and does cause harm that can be permanent, place people in legal jeopardy and cause them to lose thousands of dollars.

These O-1, NIW and EB-1A consultants are providing erroneous legal advice and engaging in the unauthorized practice of law, which can have significant consequences for themselves and the foreign national consumers who use them.

If you want legal advice on immigration law, hire an immigration attorney with experience. If you have any questions about an O-1, NIW or EB-1, please schedule a consultation with us. If you are in the U.S. and seek to engage in services beyond the scope of your employment, you must speak with an immigration attorney before commencing such activities because you could be violating your nonimmigrant status.