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Justice and Compensation for Nepalese Killed in US !

Case Study 1: Shooting at night club leads to 3.5 million dollar verdict[i]. An OH law firm represented the mother of an 18 year old young man who was shot and killed at a night club. He was standing watching a fight take place, when an unknown assailant discharged a firearm, killing our client’s son. A claim was brought against the night club for improper security, resulting in a 3.5 million dollar judgment.

Case Study 2[ii]: Members of greater Boston’s Nepali community, which numbers about 6,000 to 7,000, are calling for justice and trying to raise money to cover funeral expenses after one of their own was gunned down behind the counter of a Tedeschi’s store. The president and C.E.O. of Tedeschi’s stores put out a statement saying he’s is deeply saddened by the loss of SURENDRA DANGOL to a senseless act of violence.

Anyone with information is asked to call the Homicide Unit at 617-343-4470. Individuals wishing to provide information anonymously may do so by calling the CrimeStoppers Hotline at 1-800-494-TIPS or texting ‘TIPS’ to CRIME (27463).

Case Study 3[iii]: Missouri City Police have arrested a 17-year old Raymond Whitcher in the case of Ashok Bhattarai’s murder. Full story here. A Nepali student who was working his shift at a convenience store in Missouri City, Texas, was shot with a rifle and killed during a robbery on Sept. 28.

Case Study 4: The Council on American-Islamic Relations[iv] (CAIR) called on the FBI to investigate a possible bias motive for the murder of a Texas convenience store owner, allegedly shot to death by a suspected white supremacist. Surveillance video showed that the store owner, 50-year-old Naushad Virani, was shot during a robbery Friday night in Liberty County, Texas. Local authorities are investigating whether the murder was a hate crime. When arrested, the alleged killer told deputies: When I saw that all of you were white I decided to give up and not fight. ” He also reportedly admitted that he shot the store owner. The suspect in the case has a lengthy criminal record and is believed to be a member of a white supremacist group. He has many tattoos, including a Nazi SS symbol on the right side of his neck. A CAIR representative in Texas is in touch with the family of the victim.

ANY SIMILARITIES ON THE ABOVE FOUR CASES?

List of Incidents leading to death of Nepalese in the US

City and State Venue Victim Incident Status
Boston, MA Convenience Store Surendra Dangol, 40 December 27, 2009 Fatally shot dead. Criminal at large
Missouri City, TX First Stop Food Store Ashok Bhattarai, 21 September 28, 2008 Fatally shot dead. 17-year-old Raymond Whitcher for the murder.
Bedford, TX D&S Food Store in Bedford. Gaurab Rajbanshi, 28 June 11, 2007 Theodis Dodson pleaded guilty to capital murder and received a life sentence. Jeff Dodson is being tried for the death penalty for killing. Fredrick Hughes was in the get-a-way car and was found not guilty.
East Fort Worth, TX TL Food Store Jas Bahadur Rai, 48 January 7, 2009 Leonard Junior Coulter, 46, was arrested
Baltimore, MD Texaco gas station Himank Karki, 21 August 27, 2007 Fatally shot dead. Criminal at large
TX Leon County, Amrit Dhital, 21 January 7, 2006 Car Accident not at fault
TX Leon County, Puskar Acharya, 21 January 7, 2006 Car Accident not at fault
TX Leon County, Prahlad Gurung, 22 January 7, 2006 Car Accident not at fault
TX Leon County, Subash Gurung, 20 January 7, 2006 Car Accident not at fault
MN Southern Minnesota highway. Utsav Basnet, 19 January 4, 2006 Car Accident-Not at fault
MN Southern Minnesota highway. Bedija Kharel, 20 January 4, 2006 Car Accident-Not at fault
MN Southern Minnesota highway. Nishma Timilsina, 21 January 4, 2006 Car Accident-Not at fault

Dangers of Death and Serious Injury while working at the Retail Stores and gas Stations:

Accidents that are caused by defective or dangerous property, either inside or outside a building, are called “premises liability” accidents. Here are the general guidelines for premises liability accidents on legal responsibilities. Accidents that are caused by defective or dangerous property, either inside or outside a building, are called “premises liability” accidents. These accidents can take place at commercial buildings (stores or offices), residences (private homes or rentals), or on public property (parks, streets, or public transportation).[v]

The Basic Liability Rules for Premises Accidents

There are two basic rules to determine who is responsible for a premises accident.

Rule One: The Owner Must Keep the Property Safe

The owner or occupier of property has a legal duty to anyone who enters the property — as a tenant, a shopper, or a personal or business visitor — not to subject that person to an unreasonable risk of injury because of the design, construction, or condition of the property. The reason for this rule is simple: The owner has control over the safety of the premises and the visitor does not. For example, if the owner of an apartment building does not fix a broken piece of tile in the entrance hall, he or she is responsible if a visitor trips on that tile and is injured.

Rule Two: The Visitor Must Use the Property Normally

The second rule of premises liability applies to the conduct of the injured person. If a person gets injured while acting in an unexpected, unauthorized, or dangerously careless way, the property owner or occupier is not responsible. For example, if a guest swings down the stairs on the handrail, the handrail breaks, and the guest is injured, the owner will not be held responsible.

What about Injured Employees?

These rules extend to employees who are injured on their employer’s property; however, employees must file a worker’s compensation claim rather than a private injury claim.

Commercial Property

If you are injured at a store, office, or other business, whether the owner or occupier is legally responsible for your accident is usually determined by where the accident occurred and what the lease or other business contract says about such liability. You should notify the business about your accident and injuries. The business’s insurance company will either handle your claim itself or pass the matter on to the building owner’s insurance company.

A store owner is responsible for the safety of staff inside the store as well as the safety of all those outside in the parking lot. If they fail to keep their premises safe, then they are considered liable for any harm caused be their negligence. Retail store negligence cases can include accidents that occur on the premises, attacks and assaults that occur on the premises, and any harm that occurs as a result of an illegal sale. A retail store negligence attorney must be contacted as soon as possible.

According to the law, property owners are obligated to provide safe, secure and properly maintained premises. Regardless of how or why a person enters a property, property owners may be held liable if injury occurs. Many factors can impact the outcome of a premises liability case. Was the injured party (entrant) an invitee, licensee, or trespasser? Did the injury result from a natural or artificial condition of the premises? Was the property satisfactorily maintained? Was the facility inadequately secured?

Generally, the law provides for compensation of preventable accidents. Recompense may include loss of income, medical bills, as well as consideration for pain and suffering. Many businesses and homeowners carry premises liability insurance; however insufficient insurance leaves the property owner personally responsible for additional monies. If offered an insurance settlement, it is wise to consult with premises liability attorneys who will evaluate the case and ensure that the client’s interests are protected.

Late Surendra Dangol and Justice

Massachusetts has just changed its premises liability law with regard to self-service retailers.  On April 17, 2007, Massachusetts’ highest court, the Supreme Judicial Court, decided Sheehan v. Roche Brothers Supermarkets, Inc., which lightens plaintiff’s burden of proof in slip and fall cases. In Sheehan, the plaintiff slipped on a grape inside a supermarket sustaining significant injuries that required a month of hospitalization.  In reversing a decision for the defendant, the Supreme Judicial Court adopted a new approach to premises liability.

Previously, Massachusetts followed the traditional approach for premises liability cases.  That is, a store owner simply had to “maintain its property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”  Thus, a store owner could only be held liable for an injury if the owner had actual or constructive notice of the existence of the dangerous condition and had sufficient time to fix the condition. In deciding to forego the traditional approach in favor of a “mode of operation approach,” the Court stated that the switch was necessitated due to the change in individualized clerk-assisted retail stores to self-service retailers.  Due to the prominence of self-service businesses, the Court stated that focus should be on the reasonable foreseeability of a patron’s carelessness.  Consequently, where a store’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner may be held liable for injuries if the plaintiff proves that the store owner failed to take reasonable precautions necessary to protect him or her from the foreseeable dangerous condition.

Although the plaintiff no longer needs to show that a store owner had notice of the dangerous condition, in order to prove a claim the plaintiff must do the following:

(1) Show the injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation;

(2) Show the owner failed to take reasonable measures, commensurate with the risk involved, to prevent the injury; and

(3) Persuade a jury that the owner acted unreasonably.  Based on the Sheehan decision, all store owners, especially those which allow patrons to obtain their own goods, must take significant precautions to protect the safety of their patrons[1].

Who is responsible then?

Generally, a store owner is responsible for the safety of staff inside the store as well as the safety of all those outside in the parking lot. If they fail to keep their premises safe, then they are considered liable for any harm caused be their negligence. Retail store negligence cases can include accidents that occur on the premises, attacks and assaults that occur on the premises, and any harm that occurs as a result of an illegal sale. A retail store negligence attorney must be contacted as soon as possible.

A quick Google for Personal Injury Lawyers (retail store negligence) in Boston, MA shows the following results:

Generally, an initial consultation with these law firms is free. It is possible that the lawyer may agree to work on a contingent basis e.g. 1/3 of the amount recovered as the fee. If one has suffered a serious injury in a premises liability accident, don’t assume there isn’t anything you can do about it. The property owner’s insurance company won’t stand up and fight for your financial interests[vi].

Sadly, Nepali lawyers are mostly based in New York, who cannot practice a MA law with NY License. This raises the concern of legal representation and lawyers from our community in all states resided by Nepalese. ANLUS is ALWAYS willing to assist the family and community to get connected with an attorney for appropriate legal action ASAP. Please communicate regarding this matter at anlusnepal@gmail.com OR leave a message at www.anlus.org

Disclaimer: Information and News article excerpts used in this article are not intent to violate IP laws but a mere attempt of dissemination for public interest.


[1] http://gracegarcia.typepad.com/massachusettslitigation/premises_liability/


[i] http://www.mmmpalaw.com/CM/Custom/custom36.asp

[ii] http://wbztv.com/local/jamaica.plain.shooting.2.1394258.html

[iii] http://www.sajaforum.org/2008/09/crime-nepali-st.html

[iv] http://thesop.org/law/2009/12/29/white-supremacist-allegedly-shot-convenience-store-owner

[v] http://articles.directorym.com/Premises_Liability_Accidents_Massachusetts-r1141105-Massachusetts.html

[vi] http://www.kaplanbond.com/CM/PersonalInjury/Premises-Liability.asp

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Introduction: Kripa Upadhyay, Esq.

Having earned her Juris Doctor (J.D) degree from the Seattle University School of Law in 2007, Kripa is an Immigration Attorney with the law firm of Carney & Marchi, P.S where she practices all areas of Immigration & Nationality Law in addition to a limited practice in Criminal Defense.
Currently serving as the Chair of the Citizenshih Day Committee for the WA state chapter of American Immigration Lawyers Association (AILA), Kripa is also actively involved with various social service organizations.
Kripa volunteers as a Pro-Bono attorney for the Northwest Immigrant Rights Project (www.nwirp.org), a non-profit organization that provides free legal assistance to low income immigrants and is also a board member for Nepalese Children’s Education Fund (NCEF), a non profit organization that educates children from economically and socially disadvantaged families in Nepal (www.nepalchildren.org)
Licensed to practice before the Supreme Court of the State of Washington, Kripa is also licensed to practice before the United States Distrcit Court for the Western District of Washington.
Kripa can be contacted via the following:
Carney & Marchi, P.S
108 S. Washington Street, Suite 406
Seattle, WA 98104
Phone: 206 -224-0909

Immigration Options for Attorneys Entering the US

Navneet Chugh, The Chugh Firm. October 31, 2007.

The news has been filled with stories of one profession after another facing shortages of workers as the US economy continues to grow, overall unemployment remains at historically low levels and baby boomers are starting to retire in ever increasing numbers. While we hear about too few nurses, doctors, teachers, engineers – but we’re not hearing about a looming shortage of lawyers.  

The perception in and out of the profession for many years is that the US has far too many lawyers. And without getting in to the controversial debate over whether America is too litigious or whether non-lawyers should be able to take on more forms of work traditionally considered legal in nature, the same demographic and economic pressures affecting the rest of the workforce are affecting the legal profession. Baby boomers have begun retiring and the number of workers replacing them cannot keep up.  

Furthermore, US law firms – particularly the country’s largest law firms – have done a brilliant job competing for global legal work and that has driven their continued growth. The largest law firms in the US have now crossed the 3,000 lawyer mark and there is no reason to expect this trend to slow anytime soon. Those firms hire an incredibly large number of students. Latham and Watkins, the number four law firm in the NLJ 250 survey, hired 268 summer associates last year compared to just 164 in 2004.  

Finally, a most surprising trend – one that has never been a problem for American employers in prior generations – is a reverse brain drain where American lawyers are being recruited by foreign law firms that place a high value on American legal experience or top American legal education. The National Law Journal recently reported a single year jump of 23% in the number of American law graduates going to work for foreign firms.   

The pressures on the legal labor market are starting to show up in the statistics. The number of law students graduating from US law schools each is approximately 40,000 and that number has been relatively flat for several years. The number being recruited to work for NLJ 250 firms is now about 10,000 and the demand is increasing year to year. While producing more lawyers is not as difficult as producing more physicians or more pharmacists, the fact that virtually all professions are facing shortages at the same time that are expected to get worse, simply saying that we will increase the number of lawyers is not so simple when there is considerable competition to attract students.  

Law firms are using a variety of strategies to address the crisis. Most involve traditional techniques like more aggressively recruiting, opening doors for women and minority attorneys, raising salaries and the often counterproductive strategy of trying to get lawyers to bill astronomically large numbers of hours.  

The top law firms are also going further down the list as far as considering applicants from schools that are not in the top tier and are considering students that are graduating lower in their class, but they also face limits as they must maintain a quality edge if they are to compete for global work.  

A growing number of firms are starting to take their cues from other professions and their overseas competitors and have begun to seek out global legal talent. In the past, many international lawyers were recruited from the ranks of those pursuing J.D. and LLM degrees from US law schools. That pool of students is still an important source of talent. But American law firms are now combing the planet in search of top lawyers.  

Nowhere is this more evident than in Australia where US firms have been recruiting heavily. Ask a lawyer at any large Sidney law firm and you’re likely to get an earful about American and UK firms pursuing their lawyers. Well-known attorney recruiting firm Major, Hagen and Africa (www.mlaglobal.com) recently launched an Australia initiative and more firms are likely to follow soon.  

Why Australia ? Several reasons:  

–          English fluency

–          A common law legal tradition similar to America ’s

–          Lower salaries in Australian firms compared to their counterparts in the US

–          A new visa category specifically available to Australians that makes getting work authorization in the US much faster and easier  

Most of the Australians are heading to New York firms or branch offices. New York has traditionally been the state with the most liberal requirements for foreign lawyers seeking entry to the US and much of the international transactional work that is driving demand for more lawyers happens in the Big Apple.  

But New York is far from the only place where international lawyers are headed. You’ll now find foreign lawyers in every state and in most large law firms. And smaller and mid-sized firms have gotten in to the game as well.  

Assuming you are able to identify an attractive candidate from overseas, how does an employer weave its way through the immigration maze?

Non-Immigrant Visas – The Alphabet Soup  

There’s a reason why there are 10,000 immigration lawyers in the United States (probably 90% of the world’s lawyers practicing in this field). The US has arguably the most complex set of immigration laws and the largest immigration bureaucracy of any country. And that’s very likely because despite several years of news stories describing America ’s declining popularity, the US is still far in front of any other country in terms of demand for visas.  

Without getting in to a long discussion of how the US immigration system works, it helps to know that essentially there are five types of statuses that any person in the US can have:  

– US citizenship based on place of birth, having a US citizen parent or naturalization

– Lawful Permanent Residency (LPR), commonly referred to as the green card (and also called an immigrant visa)

– Non-immigrant status such as students, work visa holders and visitors

– asylum, refugee and temporary protected status

– unlawfully present immigrants  

Lawyers practice in the US in all of these categories (yes, even the last category though that would typically only be the case for a lawyer who had a work visa and fell out of status).  

This article focuses on non-immigrant and immigrant visa categories.  

The H-1B visa  

If you have been following the immigration debate in the news, you might have heard about Bill Gates making the rounds in Washington seeking more visas for technology workers. What most people don’t realize is that the H-1B visa – the temporary work visa used by America ’s technology companies to hire information technology professionals – is also the visa used by every other industry to hire foreign university-educated professionals.  

The number of H-1B visas available today is the same as the number set in 1990 and has not kept up with overwhelming demand. The 65,000 allotted H-1B visas can be claimed up to six months before each new fiscal year begins and on April 1, 2007, the allotment for the fiscal year that began October 1, 2007 opened. Within hours, US Citizenship and Immigration Services received a staggering 200,000 applications and had to have a lottery to determine which companies would get their workers.  

Law firms may have a slight edge, however. In the early part of this decade, Congress passed legislation creating a special bonus pool of 20,000 H-1B visas for those receiving advanced degrees from US universities. This covers foreign law students receiving JD and LLM degrees in the US . The 20,000 bonus visas were used up after just a few weeks in 2007, but at least a law firm able to file a case in early April could secure a visa with an October 1st start date without having to go through a lottery. Of course, not all firms have the luxury of being able to time an application for an April filing.  

Congress has also created an exemption from the 65,000 visa limit for universities and non-profit research institutions so legal departments at those employers can use as many H-1Bs visas as they need.  

H-1B applications for attorneys have a few key requirements:  

–          the applicant must have an employer sponsor

–          the employer must demonstrate that the applicant will be paid the prevailing salary in the metro area or at least as much as similarly employed lawyers at the same firm possessing the same experience and credentials

–          the employer can show that it has the ability to pay the offered salary

–          the applicant has the requisite qualifications to work in the position (e.g. possession of the necessary education and a license, if required, or proof that all requirements for licensure have been met if actual possession of the visa is a requirement for licensure)

–          demonstrating the position is one normally requiring a bachelors degree or higher (obviously this is not a problem to demonstrate for attorney positions)  

One key issue for attorneys will be obtaining a license or demonstrating that a license is not required for the work to be performed. A foreign lawyer coming to the US to practice the lawyer’s home country law as a foreign legal consultant would only need to demonstrate he or she is qualified to practice that nation’s law.  

Many states permit foreign lawyers to sit for the bar examination, though many require a demonstration that the foreign education is equivalent to a US legal education. Some states are very liberal and are popular locations for foreign lawyers to seek a license (such as New York ). Other states can be restrictive. Some states require a social security number to obtain a license, something that is basically impossible if one does not already have a work status in the US . In such a case, if the state will allow the lawyer to sit for the bar exam and otherwise satisfy all of the licensing requirements and a state bar will verify this, USCIS may issue an H-1B.  

Some attorneys will also seek an H-1B as a law clerk or a paralegal. A law clerk position will normally require at least a bachelors degree and a bachelors degree for a paralegal is something frequently required in that profession.  

H-1B applications are initially filed with US Citizenship and Immigration Services and the processing times vary depending on where the case is filed and how much money is paid. Normal processing takes three to four months. For $1000 on top of normal filing fees, a case will be decided in 15 days or less.  

The $1000 for speedy processing is just the start, however, on the USCIS fees. H-1B employers also must pay roughly $800 in base filing fees plus potentially another $750 or $1500 depending on the size of the employer and the type of employer (universities and non-profit research institutions may be able to avoid the fees).  

After USCIS approves the initial applications, persons in the US (such as those on student visas) can begin work if an H-1B number is available. If an applicant is not changing their status in the US , then a US consulate abroad will process a visa application. The waiting time can be just a few days up to a few months depending on the demand for appointments at the particular consulate. Consular fees will usually run a few hundred dollars and vary depend on reciprocal agreements between the US and the applicant’s country.  

Congress is expected to take up legislation soon that would increase the number of H-1B visas available and create new exemptions from the H-1B cap that could make this a more user-friendly category in the future.  

Treaty Visas  

Another popular visa strategy for hiring a foreign lawyer is to apply based on a treaty between the US and the lawyer’s home country.  

Canadian and Mexican lawyers can apply for TN visas based on the North American Free Trade Agreement (NAFTA). There are few restrictions except that a lawyer must be licensed either in the US or in the home country and the lawyer needs an employer sponsor in the US . There is no limit on the number of TNs that can be issued in a year and an applicant can apply for issuance of the TN classification on the spot at a US port of entry (usually at an airport or a land crossing).  

As noted above, Australian lawyers can apply for E-3 visas. The requirements for the E-3 are essentially the same as for the H-1B visa including possessing a license or showing that all requirements for licensure have been met except for providing a visa. 10,000 E-3 visas are available each year. However, this supply has so far exceeded demand by a wide margin.  

While Australians can pursue H-1Bs and other categories, there are a couple of key benefits that make the E-3 attractive (aside from its general availability when the H-1B cap is filled). First, E-3s can be filed directly at a US consulate. This means that expensive USCIS filing fees applicable to H-1Bs are not collected. It also means that a visa can be secured in a matter of days as opposed to several months. Another key benefit of the E-3 is that spouses can obtain a card granting permission to work for any employer as long as the attorney spouse remains in E-3 status.  

Nationals of Singapore and Chile were recently granted a special H-1B visa category of their own with an annual allocation of over 5,000 visas.  

And national of more than 50 countries are eligible for E-1 and E-2 visas. E-1 treaty trader visas are available to people from a country with a commercial trade treaty with the US who are engaged in trade between the US and the treaty country. Trade in services, such as legal services, is a permitted form of trade under the E-1 category. The employer must be majority-owned by nationals of the treaty country (and green card holders or dual citizens in the US don’t count). This then means that the E-1 is basically only available to foreign law firms with offices in the US or instances where a lawyer has her own practice and is contracting services out to other firms. The E-1 also requires a substantial volume of trade between the US and the treaty country. This might not be a problem for a US branch office of a foreign law firm as long as it can demonstrate that the majority of the work involves matters involving the treaty country.   

E-2 treaty investor visas are used much more frequently and are based on the making of a substantial investment in a commercial enterprise in the US . Like the E-1, the majority of the ownership has to be in the hands of nationals of the treaty company. E-2 status is tied to the size of the investment. US immigration rules do not specify a dollar amount to qualify for the E-2, though if a foreign firm can demonstrate it has a business plan and can document adequate capital to run the office, this often will satisfy a consular officer.  

The E-1 and E-2 are available to executives, managers and essential skills employees. This would normally include partners and attorneys with supervisory responsibilities. It would also include associates who have skill sets difficult to find in a local market. Like the E-3 visa, one can apply for the E-1 and E-2 directly at a consulate. However, some consulates can take many months to schedule an appointment. London , for example is backed up eight months. One advantage that is the same as the E-3 is the availability of work authorization for a spouse.  

Transfer cases  

Law firms transferring in attorneys from an overseas office can take advantage of the L-1 intra-company transfer visa. There are several key requirements for L-1 visas:  

–          the attorney must have been employed abroad by the firm for a year

–          the US office and the foreign office have a qualifying relationship. If the US office is a branch office, subsidiary, parent or has common ownership, then it likely will qualify; offices that are merely part of an alliance likely will not.

–          the attorney must be coming in an executive, managerial or specialized knowledge capacity

–          firm’s establishing a new office in the US will need to demonstrate it has sufficient business plans and capitalization to show it is financially viable and can afford to pay the transferee.  

To meet the executive, managerial or specialized knowledge requirement, the firm will want to show that the attorney will be managing paralegals and, if applicable, other attorneys. Attorneys who manage a “function” can also qualify even if no personnel are being managed. Attorney with unusual specialties and skill sets can also qualify as specialized knowledge employees if the firm can show that it would be impractical to find someone in the local market with a similar expertise.  

To meet the requirement for a qualifying relationship, traditional branch offices are normally fine as are typical law firm partnerships and corporate structures where each office is owned 100% by the partnership or the corporation. Problems may arise, however, if the US and the foreign office operate under the same name but have different ownership structures. If one owner controls 50% or more of both offices, then there will be no problem as the offices will be considered affiliates. If no party has a controlling interest and the ownership breakdown of each office is not the same, there could be a problem.  A joint venture between two firms may qualify despite the fact that the foreign firm does not have a controlling interest in the US branch as long as the foreign entity transferring the attorney has a 50% interest. Many firms have offices that operate under the same name, but are independently owned and merely part of an alliance. These types of relationships will also not qualify.  

L-1A visas are available to managers and executives and can be obtained for up to seven years. L-1Bs are available to specialized knowledge employees and can be obtained for up to five years. Employees of new offices will be approved for an initial period of a year and then can be extended.  

L-2 spouses are permitted to seek independent employment authorization after entering the US . Two to three months are normally needed to acquire an employment card.  

Trainee Categories  

The J-1 exchange visitor trainee category allows those coming for training in public administration and law to come to the US for up to 18 months. An employer can work through an approved J-1 exchange program which is charged with making sure that the employer provides genuine and proper training.  

An employer sponsor will need to provide a training program that describes the training objectives, the skills the trainee attorney will acquire or be exposed to through the training program and justify the use of on-the-job training. The sponsor must also provide details on the stipend to be paid to the trainee and an estimate of living costs in the US .  

The H-3 trainee category is also available, but for attorneys is almost never the best category since productive employment is not permitted. The J-1, in contrast, allows the training to be conducted in the setting of productive employment. A J-1 also does not need to show that the training is unavailable in the home country.  

The J-1 may also be the visa of choice for attorneys who are not able to or interested in acquiring a state law license. J-1s can be used by those in law clerk or paralegal positions as well as foreign legal specialist positions.  

Like the E and L categories, J-2 spouses are permitted to seek employment authorization after entering the US in J-2 status.  

Foreign students on F-1 student visas are entitled to a one year work authorization period called “optional practical training” upon conclusion of their studies. Given the large number of LLM students at US law schools, this can be useful especially given the scarcity of H-1B visas. The OP T can often allow for the lawyer to work legally while waiting on an H-1B visa number to become available or until work authorization tied to permanent residency comes through.  

Visitors  

Sometimes going through the complicated application process to obtain a work visa may not be necessary and an attorney can enter as a B-1 business visitor.  

B-1 visitors must meet the following basic tests:  

•          Have a residence in a foreign country, which they do not intend to abandon;

•          Intend to enter the United States for a period of specifically limited duration; and

•          Seek admission for the sole purpose of engaging in legitimate activities relating to business.  

There are a number of legitimate activities in which lawyers typically engage that are specifically permitted by the State Department’s Foreign Affairs Manual:  

1. Participating in seminars, conventions and conferences
2. Consulting with business associates or clients
3. Assisting clients negotiating contracts
4. Engaging in independent research
5. Board of directors and partnership meetings and related activities
6. Assisting investor clients in scoping out investment opportunities and engaging in startup activities
7. Attending trade shows  

A key to B-1 cases is that the applicant has specific and realistic plans for the entire period of the contemplated visit. The absolute length of the stay is not as important as showing that the stay has some finite limit. But the total authorized stay on each entry is limited to 180 days (with extensions permitted).  

The B-1 applicant must also be prepared to demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin. And the applicant should show a salary from abroad and adequate resources to demonstrate that there is no need to work illegally in the US .  

Applicants from 27 countries that have no problems with visa overstays can qualify in the Visa Waiver Program which allows applicants to enter the US for up to 90 days without obtaining a visa stamp. The 27 current countries are Andorra , Australia , Austria , Belgium , Brunei , Denmark , Finland , France , Germany , Iceland , Ireland , Italy , Japan , Liechtenstein , Luxembourg , Monaco , New Zealand , the Netherlands , Norway , Portugal , San Marino , Singapore , Slovenia , Spain , Sweden , Switzerland , and the United Kingdom . Note that extensions of stay for Visa Waiver entrants are not permitted.  

Finally, when an attorney is being paid by a foreign entity but coming to the US to perform activities similar to an H-1B or an H-3 worker, the B-1 may be used in lieu of the H-1B or H-3. But note that many consulates. In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad. Note that many consulates are reluctant to issue B-1s in lieu of Hs and the firm should do research on the attitude of a consulate before pursuing this type of visa.  

 

O-1 Extraordinary Ability Applicants  

Attorneys who can demonstrate that they have extraordinary ability in their field of business can potentially qualify for O-1 visas. Applicants need to show that they have reached the top of their field either in the US , internationally or in the applicant’s home country.  

O-1s need to show a single one time accomplishment demonstrating extraordinary ability or evidence showing a combination of at least three of the following:  

– receipt of nationally or internationally recognized prizes or awards for excellence in the attorney’s field;

– documentation of the attorney’s membership in associations in the field which require outstanding achievements of their members, as judged by recognized national or international experts;

– published material in professional publications or major media or major media about the lawyer;

– evidence of the attorney’s participation on a panel, or individually, as a judge of the work of others in the field;

– evidence of the lawyer’s original contributions of major significance in the field;

– evidence of the attorney’s authorship of scholarly articles in professional journals or other major media;

– evidence that the attorney has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

– evidence that the lawyer has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.  

O-1s are available for up to three years at a time and require a consultation letter from a peer group stating. For lawyers, this might include a local, state or national bar organization. The letter is essentially a statement indicating the group has no objection to the granting of the visa.  

Permanent residency  

Labor certifications  

When a non-immigrant work visa is either not available or will not allow an employer to bring over an attorney for as long as needed, applying for permanent residency may be an option worth considering. Attorneys will normally qualify for permanent residendy in the EB-2 green card category reserved for those with advance degrees (a bachelors degree or higher).  

Visas in the EB-2 category usually do not run out, though per country limits are currently causing delays for a few nationalities (including India and China ).

The key challenge for attorneys seeking permanent residency, however, is successfully navigating the labor certification process required for most applicants. A labor certification is a process where an employer goes through a recruitment process to demonstrate the lack of availability of qualified American job candidates immediately able to do the work. Employers must carefully define a job to make it clear what skill set is required for the position lest the rejection of a candidate not genuinely suitable for the position cause an application for a labor certification to be denied. Of course, rejecting a candidate with the necessary education and experience but lacking the “pedigree” suitable for a specific firm is not permissible in the labor certification process.  

Like the H-1B category, an employer must demonstrate it is paying the prevailing wage and has the ability to pay the offered salary.  

Multinational executives and managers  

The EB-1 green card category has requirements very similar to the L-1 non-immigrant category except that specialized knowledge employees are not covered and a US office must be operational for at least one year. This will normally be the green card option of choice for those qualifying in multiple categories.  

Extraordinary Ability  

EB-1 green cards are available to those with extraordinary ability in business, athletics, the arts, education and science. The EB-1 is almost identical in its requirements to the O-1 category described above. EB-1 cases, however, do not require a peer group consultation.  

National Interest Waiver  

If a lawyer can demonstrate that his or her work provides a substantial benefit to the public,  a green card may be possible in the EB-2 green card category. This category is rarely used by lawyers, though if one can, for example, demonstrate they are playing a critical role in economic development in the US or perhaps are playing are providing legal services of a public service nature. But USCIS often applies a very high standard in this category and will frequently want the applicant to demonstrate the benefits will be national in scope as opposed to local.  

Conclusion  

While the number of attorneys immigrating to the US has been relatively modest to date, that will certainly change in the years to come as the demand for the services of highly qualified attorneys will increase and the supply of attorneys will likely remain flat. With careful immigration planning, US and foreign law firms should be able to recruit legal talent globally.

Lawyers’ & Clients’ Responsibilities to Each Other by Tom Pedreira

What are your lawyer’s professional obligations?

All lawyers are subject to strict standards of professional responsibility. These standards are set forth in codes of conduct and Privileges, ethics, rules of professional conduct that are established by state bar associations. Although the rules will vary from state to state, here Here are some basic ethical and professional rules your lawyer must follow:

  • Your lawyer must represent you ethically, zealously and within the bounds of the law
  • Your lawyer must competently analyze legal issues and exercise knowledge of the law applicable to your case
  • He or she must communicate with you in a timely and effective manner
  • Your lawyer attorney owes you, as the client, a duty of loyalty. Your lawyer can’t simultaneously represent you and another client with legal interests that conflict with yours. An example of an obvious conflict would be representation of both the landlord and the tenant in an eviction action.
  • For so long as he or she continues to represent you, your lawyer is required to follow your directions in handling your case unless those directions are illegal
  • Your lawyer must keep your personal property separate from his or her own property, and must keep your money in an escrow account. Any time you demand it, your lawyer must return your money or property.
  • Except in rare circumstances, your lawyer is required to keep client confidences confidential
  • Depending on the jurisdiction, lawyers may be prohibited from having personal relationships with their clients
  • Unless he or she first obtains your informed written consent, your lawyer is prohibited from taking on representation that is adverse to your interests.

Your attorney may have other responsibilities to you, depending on your case and the ethical rules that apply in your jurisdiction.

If a lawyer fails to abide by these rules, he or she can be disciplined by any bar association of which he or she is a member. It’s possible the lawyer may even be disbarred for serious violations. Criminal prosecution is also a possibility. And a failure to comply with the rules may be the basis for a malpractice action.

Are your discussions with your lawyer confidential?

Yes. When you speak with an attorney about a legal matter, your communications with that attorney are privileged. This means that subject to some very limited exceptions, and unless you give permission, your attorney can’t disclose any information you provide to a third party.

What responsibilities do you owe your lawyer?

First of all, look at the retainer agreement that you may have signed when your hired your lawyer. Typically, these agreements will set out certain duties and responsibilities of the client. By signing the agreement, you are contractually bound to abide by them. Such duties and responsibilities may include:

  • Being truthful with your lawyer
  • Being cooperative with and responsive to your lawyer
  • Being available to your lawyer and attending legal proceedings, as requested
  • Paying your legal bills in a timely manner

These duties and responsibilities are pretty common sense, so they may be implied even without a retainer agreement that expressly reduces them to writing. Regardless, a failure to abide by them may result in a lawyer deciding to terminate your client relationship.

Source: LexisNexis

http://research.lawyers.com/Lawyers-and-Clients-Responsibilities-to-Each-Other.html

Meeting With an Immigration Lawyer by Greg Siskind

A good immigration lawyer should be able to give you an honest and thorough assessment of your case and be able to explain the options available to you based on current law and changes that are in the legislative and judicial pipeline at any given time. The lawyer can then work with you to prepare your case and represent you in front of the administrative agency handling your petition. The lawyer should be able to explain to the government agency why your case meets the requirements of the law.

  • At your first meeting, you should give the lawyer the chance to get to know you. Don’t feel compelled right off the bat to blurt out everything you want to tell the lawyer about your legal issues or needs. Many times, a lawyer will want to get some background on you and even shoot the breeze a bit. This opportunity will provide both you and the lawyer with the chance to evaluate each other on an informal basis
  • Let the lawyer lead the discussion. You’ll have all sorts of information, but the lawyer will be better able to hone in on the background facts that he or she feels are relevant or important. The more prepared you are with completed questionnaires, documents, diagrams and your own questions, the easier this process will be, and the more you’ll impress the lawyer.
  • During your initial consultation, you’ll want to be able to share all relevant information with the lawyer. Even if you don’t end up hiring the lawyer, everything you tell him or her during your meeting is subject to the lawyer-client privilege, so honesty is in your best interest. Let your lawyer decide what is or is not in your favor. It’s much better for the lawyer to know the bad things up front, rather than be surprised later.
  • If the lawyer is interested in representing you, you can expect that he or she will go through an educational process with you. You should take the time to make a candid assessment of your situation. Give the lawyer the straight scoop. Unless the lawyer advises you to the contrary, anything you tell him or her in confidence should be subject to the lawyer-client privilege, meaning that the lawyer cannot disclose it to outside third parties without your consent.
  • The lawyer may give you alternatives as to what you can do, and you should discuss relevant questions about each option. Look for practical legal advice that in your own mind translates into good sense.
  • Depending on how well prepared you are, the lawyer may even be able to give you advice on how to proceed. This could be especially important when time is of the essence.
  • Be clear on what is to happen next and then be sure to follow through on whatever you have been asked to do by your new lawyer. The lawyer will insist on cooperation from your end. Be sure to ask the lawyer how he or she would prefer to communicate with you, and then keep in contact regularly with your lawyer.
  • There are actually immigration lawyers out there who swear they have never lost a case even after a lengthy career. Be nervous about lawyers who promise success. A lawyer who honestly presents the risks is worth a lot more. Likewise, be very weary of lawyers who claim to have special influence with the government. Also beware of lawyers who speak too negatively of the competition. If the lawyer is worthy, they can stand on their own record rather than tearing down the record of competitors.
  • Read the fine print in your engagement letters. Some lawyers load agreements down with so much “legalese” and one-sided provisions that it should give you pause. Consider using a lawyer who provides an agreement that is written in plain English that appears to be even-handed.
  • Ask for a copy of a firm brochure and promotional materials that the firm may have. Crosscheck these materials against your other sources and references. Ask to be provided with a copy of the lawyer’s retainer agreement and have it explained to you before you hire a lawyer or law firm. You may end up paying a lot of money to the lawyer you hire, so make sure you understand what you are signing up for.
  • Your experience with your immigration lawyer is more than just the result of the lawyer’s experience and competency. A lawyer’s “bedside manner” can mean a lot, so find a lawyer who really seems to care about your case.
  • You probably wouldn’t be meeting with the lawyer in the first place if you weren’t ready to hire somebody. Before you hire a lawyer, though, you may want to ask for references. You would want to talk to people who could comment on the lawyer’s skills and trustworthiness. Ask if it is okay to talk to some of the lawyer’s representative clients.
  • While you may still change your mind at almost any point, be prepared to proceed forward by bringing a check book and/or a credit card to pay a retainer to the lawyer if he or she asks before proceeding forward. Keep in mind that lawyers cost a lot of money and you will be expected to pay for their services. From the lawyer’s perspective, a client who is unwilling to pay a retainer up front for good legal advice may not be willing to pay for it down the road.

Making yourself an educated consumer of legal services will improve your chance for your case to be managed successfully. That means learning as much as you can about immigration law, so that you can work with your lawyer to achieve the best possible solution for your case.

Source: http://immigration.lawyers.com/Meeting-With-An-Immigration-Lawyer.html

LexisNexis

Preparing To Meet With A U.S. Immigration by Greg Siskind

It can be a big waste of time for both you and the immigration lawyer if you are not prepared for your first meeting. Being unprepared may also end up costing you money because it will take longer for the lawyer you hire to get up to speed on your legal matter.

  • First of all, the lawyer will want to know who you are and how you can be contacted. The lawyer may also ask for a personal and business background. Therefore, you need to write down all this information in a logical matter and have it available for the lawyer.
  • Sometimes, a lawyer tries to speed up the information-gathering process by sending you a questionnaire to fill out filled out before your meeting. If this happens, be sure to fill out the questionnaire and send it in to the lawyer’s office before the meeting. Also send along copies of any available documents that may be requested in the questionnaire.
  • Before you get too far into a meeting or conversation, the lawyer should want to know about possible conflicts of interest. Immigration lawyers often have inherent conflicts of interest, particularly in business immigration matters where they are assisting an employer and employee at the same time. Most of the time this is not a problem. But pay attention if the interests are different, such as when an employer and employee start to have problems getting along.
  • Written documentation is important. Even if a lawyer doesn’t ask for documentation beforehand, it’s still a good idea to bring a copy of all documents relevant to your situation to the meeting. Spend some time thinking about what you may have on hand. Try to organize the documents in a logical manner before you meet with the lawyer.
  • Prepare a list of questions to take with you to your first meeting. You have to feel comfortable with your lawyer. Remember that your lawyer is working for you. You want someone who is skilled, but you also have to get along with your lawyer. In theory, no question is too silly to ask. Keep in mind, though, that you don’t want to scare a lawyer out of representing you. General questions to ask would include: How many matters of a similar nature has the lawyer handled? How much of his or her work is done in this area? What paperwork is involved and how long will it take to finalize? How would the lawyer go about handling your situation? What is the process? How long will it take to bring the matter to a conclusion? How would the lawyer charge for his or her services?
  • Most immigration lawyers work on a flat fee basis, though in many matters, hourly billing or contingency billing may be done. If a lawyer prices way outside of the market ,either on the high or the low side, this should be a source of concern. The lawyer may not have any idea how much work is really involved in the case. Or the lawyer may simply be attempting to charge too much.
  • A lawyer who quotes a price too low may also be able to price that way because the work is being pushed down to the level of a legal assistant or very junior associate. There are great lawyers who charge more and lawyers who operate extremely efficiently who can charge less. So comparison shopping may serve you well.
  • More and more lawyers are also offering to “unbundle” their legal services and are offering “a la carte” legal work. This means that instead of handling a case from beginning to end, a lawyer will prepare only parts of the case or simply provide the client with the lawyer’s expertise. So perhaps you want to submit your green card application yourself, but would like to consult with a lawyer and have a lawyer review your application. A lawyer who unbundles services might work with you to provide just the amount of expertise you absolutely need and can afford. The practice is still controversial in some segments of the legal community, but organizations like the American Bar Association are openly embracing the concept.
  • If you still cannot afford to hire an immigration lawyer due to costs, there are sometimes still options that will allow you to utilize the services of an immigration lawyer. Many lawyers work with pro bono legal organizations in their communities and accept a limited number of no- or reduced-fee cases. Keep in mind that you will typically be screened by one of these community organizations to determine that your case is the type of case that is appropriate for a referral to a pro bono lawyer. You will usually be screened as well to determine whether you truly are too poor to pay.
  • Would the lawyer handle the case personally or would it be passed on to some other lawyer in the firm? One of the ways immigration practices are attempting to keep costs down is to hire paralegals and legal assistants to do much of the work that immigration lawyers used to do on their own. In some markets, this may be the only way to keep costs low enough for people to afford to hire a lawyer. But you should know what you’re paying for. Some of the most expensive immigration firms still staff with extremely high ratios of paralegals- sometimes as high as ten paralegals per lawyer. A more modest ratio of one to two paralegals per lawyer may mean that the firm is not too overloaded with work and it may mean that the lawyer you thought you were hiring actually knows what is happening on your case and has the time to speak with you about your case.

Treat your first meeting as a business consultation. Dress well and be prompt. Be polite and courteous. You will want to impress the lawyer, just as he or she will be trying to impress you.

Source: http://immigration.lawyers.com/Preparing-To-Meet-With-A-U.S.-Immigration-Lawyer.html

Selecting A U.S. Immigration Lawyer by Greg Siskind

Immigration law is difficult to understand and constantly changing. No fewer than three major agencies administer the US immigration system and dozens of other agencies play a role. So it’s incredibly important to hire a good lawyer if you are dealing with any kind of immigration issue. Because there are more than 7,500 immigration lawyers practicing in the US, the process of selecting just the right lawyer can be difficult.

A great way to start your search is at lawyers.com. Go to the Find a Lawyer search box that appears on each page. Under Personal Needs where it says, “Select a type of lawyer,” scroll down the areas of practice and click on “IMMIGRATION.” Then type in your hometown, insert your state, and click on the Search button. You should be able to pull up a list of immigration lawyers in your area.

Next, find out every thing you can about the lawyers and then do some initial screening to narrow down you list to three or four prospective candidates:

  • Look at the biographies and Web sites for the lawyers and their law firms. Do they have any information on their Web sites about immigration law that is helpful to you?
  • Is the lawyer a member of the American Immigration Lawyers Association? AILA is probably the immigration lawyer’s best resource for up-to-date information on the law. While being an AILA member is not a sure sign of quality, NOT being an AILA member should definitely make you concerned about just how much the lawyer knows about immigration law.
  • Has the lawyer ever been disciplined by the Board of Professional Responsibility of the state bar? This could be a sign of possible problems. There are also people who falsely claim to be licensed lawyers. The local bar is also the place to check that the lawyer is licensed and in good standing.
  • Has the lawyer established a good name for himself or herself in the community? If your lawyer has a sterling community reputation, chances are it was earned through hard work.
  • A strong reference from a friend or colleague is often the best indicator of whether a lawyer is up to snuff.
  • Within immigration law, there are a variety of subspecialties, including employment, family, asylum and deportation. Consider going with a lawyer with a strong background in your particular type of case.
  • It’s tough enough for a full-time immigration lawyer to keep up with all the developments in the practice area. It’s nearly impossible to be a top-notch immigration lawyer while trying to balance being an expert in many other practice areas as well. While someone can be a good immigration lawyer and also be very competent in another practice area, watch out for lawyers where immigration is one practice area on a laundry list of claimed specialties.
  • Technology has revolutionized the practice of immigration law probably as much as any other area in the legal profession. Does the lawyer have an e-mail address? Does the lawyer have the latest research and case management software? Does the lawyer provide electronic newsletters and email alerts to inform clients of breaking news? Does the firm have an extranet that allows you to log in to a private and secure web site to see what is happening on your case? Does the firm file applications electronically? Lawyers who master technology deliver legal services with better quality and can often leverage technology to deliver legal services less expensively.
  • A few states certify lawyers in the practice of immigration law. If your lawyer practices in a state that does, make sure he or she has this credential. It’s no guarantee of quality, but it can certainly be an indicator.
  • While many fine lawyers have come out of mediocre law schools and lousy lawyers come out of the Ivy Leagues, where a lawyer went to school can still be an indicator of a person’s ability to achieve.
  • Lawyers who write frequently about their practice area tend to keep themselves better informed about their area of law. The ability to get published may also indicate that the lawyer’s expertise is respected.
  • A number of immigration lawyers focus on particular types of employers and have become particularly adept at handling visa matters in their industries. For example, a small number of immigration lawyers in the United States represent the bulk of physicians applying for visas because of the peculiar difficulties present in these types of cases.
  • Unlike most fields of law, the location of your immigration lawyer is not nearly as important as you might think. Immigration law is strictly federal in nature. That means it is basically the same across the country and a lawyer in one state is practicing under the same system as in every other state. Immigration law is almost entirely administrative as well. That means that most petitions are submitted by mail and personal appearances by an immigration lawyer are becoming less and less common.
  • Check out the yellow pages of your telephone directory. Does the lawyer advertise? If so, do you find it compelling? Helpful? Tasteful?
  • Check out the archives of your local newspaper. Has there been any publicity about the lawyer or the cases that he or she has handled?
  • Consider any special needs you have. For example, could you benefit from a lawyer who speaks a language other than English?

You will probably want to hire a lawyer with at least a few years of experience. Much of immigration law is unwritten and the longer a lawyer is in practice, the better his or her instincts become. But the opposite can be true as well. Lawyers who have been practicing for years may become lazy about staying up to date on the latest changes. So try and strike a balance.

Compare backgrounds and experience. Use your common sense and gut instincts to evaluate the remaining lawyers on your list. You’ll want to be comfortable with the lawyer you hire. You want to choose the best lawyer you can afford who is experienced, competent and willing to communicate. Prioritize your choices and start making some telephone calls to set up meetings with several lawyers to interview them.

Source: http://immigration.lawyers.com/Selecting-A-U.S.-Immigration-Lawyer.html

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