Invoking Alternative Strategies in Immigration Cases

My phone rang one early Friday morning while I was on my way to work. It was a foreign national telling me the Border Officer had refused him entry into the country. What to do now? A few weeks earlier, when this case landed on my desk, I remember asking a series of question related to its strategy. What was the petitioner’s primary purpose in hiring this foreign national? Was the start date flexible? What other overarching issues did I have to consider? What various visas were available to this foreign national and how likely would each strategy be successful? If Plan A didn’t go as planned, what alternative strategies did we have? Given the type of visa this petitioner wanted to pursue, and given the high rate of denials by Border Officers in that locale, I followed these steps to make sure I could successfully invoke an alternative strategy.

1. Assessing the Client’s Primary Needs

In this particular case, the petitioner wanted this foreign national to start work as soon as possible because of a looming project deadline. Additionally, they wanted to save money on government and legal fees. Hence, their desire to pursue Plan A was the most attractive.

2. Explained the Viable Alternative Strategies and Likelihood of Success

Understanding the petitioner’s needs helped me to structure how I advised them on the Alternative Strategy. I provided them with a timeline for Plan B in the event Plan A did not go as planned. I gave them step-by-step explanations of what needed to be done, by whom, and when. I also informed them the extent of my direct involvement throughout that process. Finally, I provided them with my assessment of how likely I thought the case would be approved without an RFE for Plan B, giving no promises or guarantees! (See my previous post on managing client expectations.)

3. Documenting My Conversations

Whatever advice I gave and instructions I dispensed were all memorialized in writing. This is one of the key lessons a first year law student learns and I’ve successfully carried that with me in my practice. I logged all my emails in the client’s electronic folders. This is where utilizing anelectronic immigration case management software is critical as I could pull up the data all in one place in an instant. This helped me and the rest of my team understand why the petitioner chose Plan A over B. It also served to document that I had properly explained the risks to the petitioner client.

4. Preparing for Plan B In Case You Need It

The reason the foreign national called me on a Friday morning, and not on a Sunday morning, was because I had instructed him to attempt his border crossing during a week-day and early in the morning, in case of a potential denial. It would still leave me time to either rehabilitate his case or consult with the petitioner to determine if Plan B would be pursued instead. Of course, immigration law practice is seldom predictable or easy. There may not always be a Plan B, or your Plan B may be more difficult to secure an approval than Plan A. Nevertheless, having an internal organizational policy on how and when to advise, and how much to document helps to put your best foot forward. Fast-forward to the phone call with the client- I wasn’t actually surprised.  Because I had a process in place for the alternative strategy, I was mentally prepared.  After reviewing the denial documents as a result of Plan A, the petitioner decided to pursue Plan B. I spent the rest of that Friday afternoon and the entire weekend drafting Plan B. Monday afternoon I filed the case and by the end of next week, the foreign national was ready to enter the U.S. with an approval in hand.