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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.

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Attorney answers 3

Posted

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.

Asker

Posted

I paid the money to him Feb 25th. He did not give me a plan/schedule with timeline for different steps that need to be completed before filing H1B petition is filed. All of a sudden he started rushing when he realized that H1b quota is going to get filled up within the first week.

Miroslava Orduno Rincon

Miroslava Orduno Rincon

Posted

I would encourage you to try to resolve this matter with the attorney first. In the event you already have and wish to have some sort of resolution, you should be able to file a complaint with the Attorney Grievance Commission of the State in which the attorney practices. But again, I would try to sit down and discuss this with him first. Good luck.

Posted

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.

Asker

Posted

In the subject I clearly mentioned that "our company's H1B petition" the company paid the money not the candidate. I am the owner of the company and I paid the attorney to perform the work. I am not sure what made you understand that I am the candidate.

F. J. Capriotti III

F. J. Capriotti III

Posted

I am sorry for the confusion. 99.99% of the questions that are posted in regards to H visas are put up by the employee .... incorrectly referring to it as 'their' petition. With that said, you didn't tell us how much advance time you gave the attorney ... was he/she hired substantially BEFORE March 1, 2013?

Asker

Posted

I hired this attorney on Feb 14, 2013. I made the payment to him on Feb 25th, 2013. I asked him to confirm if its doable to file the H1b petition as its our first time filing the petition. He said its doable and asked my to make the payment. After he received the payment he did not give me a plan/schedule with timeline for different steps that need to be completed before filing H1B petition. He did not set a deadline for me complete any tasks that I had to perform. He did not follow up with me if I was delaying the process to meet the deadline. All of a sudden he started rushing when he realized that H1b quota is going to get filled up within the first week of April 2013. I told him if we had a plan to file the petition on April 1st, 2013 we don't have to worry whether the visa number are getting filled up faster or not. Due to improper planning our LCA was not approved when we filed our petition. Two days before we filed our H1b petition, I even pointed it out to him from USCIS website has mentioned that we file the H1b petition along with the approved LCA. He told me USCIS website is for general purpose only and does cover all specific situations. He told me to trust him. So we went ahead and filed the H1b petition. After USCIS rejected our H1b petition he failed to follow up with USCIS with our case specifics why USCIS rejected our petition instead of giving us an RFE based on the a specific rule or earlier case that made him to take that path.

F. J. Capriotti III

F. J. Capriotti III

Posted

Although 5 weeks isn't much time, it was enough time ... NOTE: I'm calculating from the date you actually made payment, which is when the employment 'contract' was finalized. You appear to have a valid grievance and I wonder if this attorney is a member of AILA. As you know, a malpractice lawsuit is difficult & not profitable for attorneys working in that field. You can consider filing a complaint with the State Bar and a small claims action for your lost money. Unfortunately, you can't sue for the loss of this employee's services ... hopefully that employee has other options for staying in the US. Good luck..

Asker

Posted

Thanks. I appreciate your opinion.

Asker

Posted

Attorney's name is Peter S Kollory located at 1628 Oak Tree Rd, Edison NJ 08820

F. J. Capriotti III

F. J. Capriotti III

Posted

It is best not to mention names on a public internet blog. I can tell you that this person doesn't appear to be a member of the American Immigration Lawyers Association: www.aila.org If you wish to follow things with the attorney discipline board, here is the link: http://www.judiciary.state.nj.us/oae/atty_disc/atty_disc.htm#filing

Asker

Posted

Thank you sir.

Posted

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.

Asker

Posted

I was not presented with the tag to add this to the malpractice attorneys when I posted this request in avvo. Tags that were presented to me were around immigration and H1b.