Proposed CIS Fees May Also Test Lawyers' Own Financial Abilities
On February 1, 2007, USCIS proposed a major increase in filing fee rates  which will severely test the average alien's ability to afford these costs. However, the aliens will not be struggling alone. For solo practitioners and small firms, the new rates will test the common practice of advancing filing fees for their clients.
Within the immigration legal community, the standard practice is that individual clients pay all legal fees and CIS filing fees up front, before a case is filed. The "pay-as-you go" policy minimizes the lawyer's risk of loss and increases cash flow. Conversely, in cases involving corporate clients, these same practitioners typically abandon this prudent approach to running a business. Instead, corporate clients have long enjoyed an industry practice wherein immigration lawyers usually advance filing fees and costs due at the time of filing a case and then wait for reimbursement.
Solo lawyers and small firms following this practice are, in essence, serving as a bank by providing 60/90 day financing for their corporate clients-be they wealthy Fortune 500 companies or risky start-ups. If implemented occasionally, this practice does not have a significant impact on the firm's financial health. However, for heavier volume practices and in light of the proposed CIS rate hikes, the cumulative effect of advancing filing fees will undoubtedly be financially staggering for many lawyers.
For example, the average H-1b visa petition for premium processing costs $3,190 in CIS filing fees. Consider the impact on the firm's cash flow of filing ten H-1b petitions in a month, which would result in the firm advancing $31,900 for their clients. Under the proposed CIS fee schedule, ten H-1B petitions would cost $33,200. Add to that all legal fees owed.
Let's take another example. Under the present CIS fee schedule, a family of four (two adults and two children over 14 years) filing an I-140 and I-485 package, including work and travel permits (I-765 and I-131), will pay a total of $3,175 (without a request for premium processing). Under the new CIS rate plan, the cost for this family would be $4,095. If the alien is an employee of a corporate client, the law firm would likely advance the filing fees and then seek reimbursement from the company. Filing ten of these cases in single month requires the immigration practitioner advance $40,950 to the CIS solely to cover fees.
Considering the preceding two examples together, the immigration practitioner, who advances fees for just ten H-1b visa cases and ten I-140/485 cases in a month, would be required to advance $74,150 in cash each month to the CIS. Subsequently, these practitioners would then wait 30, 60 or perhaps even 90 days to receive reimbursement, depending upon the billing cycles of their corporate clients.
From the foregoing, it is clear that a policy of regularly advancing the new CIS filing fees for clients will create an enormous financial burden for small immigration practitioners. The new fee schedule may become the straw that breaks the camel's back, considering normal financial burdens already carried by these small business owners, such as rent, payroll and insurance.
So what are some options available to solo practitioners and small firms?
- Obtain a business line of credit. Some lawyers will conclude that advancing filing fees for certain corporate clients is critical to maintaining them as clients. These practitioners should ask their bank to create a line of credit connected to the checking account. Pros: A line of credit allows the practitioner to write checks beyond their firm's cash reserves while incurring only a relatively low borrowing cost. Cons: The firm will bear new costs (debt service) that may not be passed on to the clients, as well as assuming repayment risks associated with default or nonpayment of a client.
- Obtain a retainer from your client just for expenses. Ask a valued corporate client to forward a reasonable retainer, which will be held in the practitioner's IOLTA account to be used exclusively for payment of costs. Pros: A retainer allows the practitioner to draw from the clients' funds to pay costs. Cons: Some clients may not like advancing unallocated fees, depending on their internal budgetary requirements.
- Bill for expected costs and legal fees when case is opened. In most instances, practitioners can accurately calculate expected filing fees upon receipt of a case request. Generating an invoice for both legal fees and costs as soon as the case is opened (before the costs are actually advanced) will essentially eliminate any advancement of cash, and reduce or eliminate wait times for receipt of legal fees. Pros: An optimal cash management policy for the firm. Cons: Requires the practitioner to change practices by moving the billing procedures from the end to beginning of case, and clients who have been "spoiled" in the past will be forced to pay sooner for the work requested.
1 Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 62 Fed. Reg. 4888 (proposed Feb. 1, 2007).
About The Author
David M. Morris, Esq. has practiced exclusively in the field of employment-based immigration since 1992. He is the managing member of Visa Law Group, a boutique immigration firm with offices in DC and NY representing businesses across the United States.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.