We live in financially precarious times. Years of austerity measures, low economic growth and rising prices have put a strain on SMEs. For many companies, it can be tempting to reduce overheads by instructing Human Resources to prepare and file US visa applications on behalf of members of staff, rather than instructing a US immigration law firm. However, are there any risks associated with taking such an approach? In this article, we will examine the reasons why reducing overheads in this way could potentially be a false economy and why it is beneficial to instruct Counsel, where possible.


The Unauthorized Practice of Law

In the U.S, the practice of law is considered to be a privilege, bestowed upon those who have met the stringent standards of ability required by the State Bars and who have proven themselves to be of good character. Attorneys are subject to strict regulation by the State Bars and are bound by rules of professional responsibility and continuing legal education requirements.

In short, attorneys are subject to a very high-level of regulation, in order to maintain high professional standards, safeguard public confidence in the legal profession and protect members of the public from malpractice and incompetence. In the practice of law, even the slightest oversight can have disastrous consequences for a client.

Unbeknownst to many companies, when a HR team purport to provide legal advice to employees on matters of US immigration law, they are unwittingly committing the unauthorized practice of law, which is a felony in most US States. More worryingly for the members of staff on whose behalf applications are made, the HR team may not have sufficient knowledge of the intricacies of US immigration law and practice to provide a competent service. As a result, the HR team may misguidedly file an application for an inappropriate visa, fail to address a significant weakness within an application or, worst case scenario, make a fatal error, which directly results in the denial of the US visa application.


Risk of Tortious Liability   

As indicated above, when a company purports to practice law by advising an employee on the filing of a US visa application or by filing a US visa application on behalf of an employee – without a law license – there is a very real risk the company may incur liability under the law of negligence in the English and Welsh jurisdiction, in the event the visa application is denied.

Generally speaking, in order to bring a claim for negligence under English and Welsh law in these circumstances, the Claimant would need to establish (1) their employer owed them a duty of care, (2) the employer breached their duty of care, (3) the employer’s breach of duty caused the Claimant loss or damage and (4) Actual loss/damage.

As such, it would be very easy for an employee to bring a claim in negligence, if their employer unsuccessfully filed an application for a US visa on their behalf.


Say, for example, a company filed an application for an E-2 Employee visa, on behalf of an employee. The HR team diligently attempted to research the relevant visa category and genuinely believed they had submitted a robust and persuasive application. However, unknown to the HR team, they had misinterpreted the eligibility criteria, failed to include the relevant evidence or had failed to address a major issue within the application. As a result of the error, the E-2 Employee visa application was denied.

Under these circumstances, it would be possible for the employee to contend 1) Their employer owed them a duty of care, in respect of the E-2 Employee visa application, 2) Their employer had breached their duty of care, by acting outside the scope of their knowledge in providing legal services and 3) As a direct result of their employer’s breach of duty, the Claimant had suffered loss and damage.

A US visa denial renders a visa applicant permanently ineligible to travel to the US on ESTA for purposes of pleasure or business. It effectively confers a lifetime ban on travelling to the US on ESTA. As a result, if the individual in question wished to travel to the US in future, for example, for a vacation – best case scenario – they would be required to apply for a B-1/B-2 visa every 10 years as a UK citizen, which is onerous, inconvenient and expensive. Worst case scenario, if the B-1/B-2 visa application is denied, the individual in question would be wholly unable to travel to the US. From a legal standpoint, either of these two scenarios could constitute significant loss or damage, for the purposes of any subsequent claim in negligence.

Overall therefore, one might consider any cost savings generated by directing HR to file a US visa application on behalf of an employee to be a false economy, in the light of the risk of tortious liability and the costs associated with defending a negligence claim, potentially paying damages and repairing any damage to reputation and responding to any negative publicity. Indeed, businesses would not ask members of staff to perform medical procedures without medical training. In the same way, it is unwise to direct members of staff to perform legal services if they are not qualified to do so.


Davies Legal Immigration

At Davies Legal Immigration, we provide advice and representation in relation to all US visa categories. We tailor our service to the unique needs of our clients and offer a comprehensive, efficient service at a competitive fixed fee. Call now to discuss your US immigration enquiry with a licensed US immigration attorney.

Published: 13th March 2018