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USCIS rejected our company's H1B petition due to my attorney's incorrect guidance

Basking Ridge, NJ |

My attorney suggested that we file our H1B petition for the 2014 quota which closed on April 5th. We did not have the LCA approved but he suggested that we go ahead and file our petition and take the RFE based on his advise we filed the petition. As a matter of fact I even pointed it out to my him that USCIS website has listed the approved LCA form to be submitted along with the H1b petition. He said USCIS website is just for general guidance and they don't give any specifics and he told me to trust him. Last week he is sent the H1b petition back to us mentioning that USCIS has denied out petition because the approved LCA was not submitted. I was very upset because my attorney should have known the rules, necessary documents and procedures of USCIS. I would like to know my options.

I contacted a few malpractice attorneys and told my situations they agreed that my attorney has messed it up but they are not interested to take the case on a contingency basis because of the amount that I paid to attorney is not large and more over they mentioned that it will be difficult to calculate the dollar amount for the damage. I would appreciate if anyone can help me.

Attorney Answers 3


  1. You might have already taken this into account, but thought I would mention it just in case: when did your attorney receive all the information he needed from you and your petitioner. Was it weeks before the filing deadline or mere days? Keep in mind that it normally takes 1 week to receive an LCA. After that, on a very best case scenario you need a couple of days more to generate all the remaining paperwork, send out for signatures and get it back. If your attorney only received everything a few days before the deadline, he might have just taken a gamble and filed without the LCA as a means of at least trying to get you in. If that is what happened, he should have obtained informed consent from the petitioner since there was the risk of outright denial. If the information was provided with sufficient time, then that is a different scenario.

    This information is provided as a courtesy based upon the limited information provided in your post and does not constitute an attorney-client relationship.


  2. I agree with Ms. Rincon ... you didn't tell us when the attorney was hired ... how much time he/she was given to prepare ... etc. I insist that people give me a minimum of 30 days in which to prepare.

    Also, I am aware of attorneys having successfully tried the RFE approach .... with success ... thus for this attorney to suggest 'trying' wasn't necessarily improper ... especially if he/she wasn't given much time in which to prepare.

    Lastly, you should not have paid one penny ... both the Department of Labor and USCIS are very clear on this point .. the employee may NOT pay the filing fees, nor attorney fees. The only thing you could have paid was the Premium Processing fee. If you and your prospective employer made an agreement for you to pay these fees, you could have participated in an illegal conspiricy.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.


  3. This is an immigraiton lawyer's blog, not that of malpractice attorneys. I am very doubtful the malpractice action would succeed. For that, you would need to show that your lawyer deviated form the standard acceptable practice. It will not be easy on your facts.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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