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What Happens to My Immigration Status If My H-1B Visa Application Is Denied?

February 9th, 2023

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    Having your H-1B Visa application denied can be extremely worrisome, but what will happen to your immigration status, will depend on the particular circumstances of your case.

    For example, a denial of an H-1B Visa application, of which you were the Beneficiary, may negatively affect your immigration status, if you are in the United States, and you do not have a non-immigrant visa that is independently valid.

    There are other instances, in which the denial of an H-1B Visa petition, may have bad consequences for you as the Beneficiary. If your non-immigrant visa status expired while the H-1B application was pending, an H-1B visa denial may leave you without lawful status in the United States ( “illegal”) and you could even have Removal/Deportation proceedings initiated against you, although that would be relatively rare.

    The reasons for the denial of the H-1B Visa application will be included in the denial letter which is issued to the business entity that filed it, the Petitioner. The Petitioner, and not the Beneficiary, is allowed to fight the denial by filing a Motion to Reopen or Reconsider or an Appeal, with a Form I-290B. The Administrative Appeals Office (AAO) of USCIS (United States Citizenship and Immigration Services Agency) will review the denial and make a determination as to whether or not the denial was appropriate. In the event the AAO rules that the application should not have been denied, then an approval will be issued or the case will be returned to the Service Center for a new decision, and if the Beneficiary had lost their status, it would be restored.

    If your H-1B Visa application was denied, our business immigration lawyers in Boston can help determine what impact that denial has on your immigration status. For a case consultation, contact FitzGerald Law Company at (617) 303-2600.

    Why is an H-1B Visa Application denied?

    There are a large variety of reasons that could result in the denial of an H-1B Visa Application but they generally fall into one of three categories:

    1. Improper, insufficient or inadequate documentation; or
    2. The position at the Petitioner’s business is non-professional (does not require a University degree or its equivalent) ; or
    3. The Beneficiary does not have the required qualifications for the position.

    Documents You Must File to Support Your H-1B Visa Application

    If your H-1B application was denied, it is possible that one of the many documents required by the USCIS to prove the Petitioner and the Beneficiary are eligible for the visa was not submitted or filed as directed by USCIS. Thus, it is critical to understand what documentation is required and appropriate for the submission of an H-1B Visa application to the United States Citizenship and Immigration Services (USCIS).

    The following documents, along with their English translation, usually must be presented to USCIS to so that the H-1B Visa petition is approved and not denied:

    • Copy of the Beneficiary’s passport
    • Copy of the Beneficiary’s current H-1B visa, if applicable
    • Copy of the Beneficiary’s most recent I-94 Form, if they are present in the U.S.
    • Copy of the Beneficiary’s university transcript(s)
    • Copy of the Beneficiary’s Curriculum Vitae /Resume
    • Copies of any relevant educational certificates or diplomas
    • Copies of letter(s) of Recommendation from the Beneficiary’s previous employer(s), and/or from previous instructors/professors, if required
    • Letter from the Petitioner with detailed job description
    • Records or Itinerary of job site locations for any anticipated off-site duties
    • Employer tax ID number
    • Name and title of the employee’s new direct supervisor
    • Description of the Petitioner’s business and the business date of inception
    • Copy of the Petitioner’s Articles of Organization, issued by a state government
    • Number of employees currently working with the Petitioner
    • Number of H-1B employees currently working with the Petitioner
    • Copies of relevant marketing material describing the Petitioner and its business
    • Copy of approved LCA, Form ETA-9035 for the relevant time period of the H-1B Visa

    Failure to file sufficient and appropriate documentation can result in a denial of your H-1B visa application. Our business immigration attorneys have years of experience obtaining and reviewing the documentation necessary for H-1B application approvals and they can provide an analysis of this documentation if your H-1B Visa application is denied.

    Position Requires a Bachelor Degree or Higher

    In order for an H-1B Visa to be issued, the Petitioner must provide evidence that the position is “professional,” meaning the position requires a minimum of a Bachelor’s Degree from a University, or its equivalent, for its performance (See 8 C.F.R. § 214.2(h)(4) [“an occupation which requires theoretical and practical application of a body of highly specialized knowledge in field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts;  and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”].)  As such, there must be evidence to show that a bachelor’s degree or higher degree, or its equivalent is normally the minimum required for the position; the bachelor degree requirement is common to the industry; the employer normally requires a degree or its equivalent for the position; or the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or a higher degree.

    Beneficiary’s Qualifications for a U.S.  H-1B Visa

    The Beneficiary must have as a minimum a university degree and the degree, or the course of study of the Beneficiary must be specifically related to the position that is offered by the Petitioner.  If there is not a sufficient relation between the Beneficiary’s educational and/or professional background of the specialized duties of the position, then USCIS may not be convinced that the Beneficiary’s qualifies for the H-1B visa.

    Eligibility Requirements for an H-1B Visa in the U.S.

    An Employer (Petitioner) can sponsor an H-1B Visa application for a an Employee (Beneficiary) if the Beneficiary meets the following conditions:

    • They were admitted lawfully into the United States with a nonimmigrant visa, if they are present in the U.S.;
    • Their Nonimmigrant visa status remains valid at the time of filing for the H-1B visa, if they are present in the U.S.;
    • They are not ineligible for a visa due the commission of a disqualifying criminal offense or security issue;
    • They have not committed any disqualifying violations of presence in the U.S. or prior admissions to the U.S.
    • They (generally) have a passport valid for the duration the H-1B Visa
    • They possess a qualifying University degree or its equivalent.

    If the beneficiary failed to meet any one of the listed requirements or they did not provide sufficient documentation, it could be the reason for an H-1B visa application denial.

    What Options Do I Have If My H-1B Visa Application Is Denied?

    If your H-1B Visa application is denied, the Petitioner has options to fight the decision. What steps you should take will depend the basis of the denial, which will be set forth in the denial letter issued to the Petitioner.

    The Beneficiary generally has no right to file for a review of a denial of an H-1B Visa Petition..

    Filing a Motion to Reconsider

    If your application was denied and it appears that it was a legal error in the USCIS decision, then the Petitioner can file a Form I-290B, Motion to Reconsider, and ask USCIS to review the application again based on the information and documentation contained in the Record of Proceeding (the records in the file at the time of the decision).

    Filing a Motion to Reopen

    If your application was denied and it appears from the USCIS decision that it was missing some evidence, then the Petitioner can file a Form I-290B, Motion to Reopen. The Motion to Reopen allows the Petitioner to supplement the prior filing to include the missing material, and ask USCIS to adjudicate the application again with the new information.

    Appealing the Denial

    If your application was “denied,” you may need to appeal the decision to the USCIS Administrative Appeals Office (AAO), with a Form I-290B, within 30-33 days of issuance of the denial, along with a legal brief at that time or within the next 30 days.

    When you appeal a decision to the AAO, the USCIS office that made the original decision will first review the appeal to determine whether to take favorable action and grant the H-1B Visa. During this “initial review,” the reviewing office may treat the timely appeal, as a motion to reopen or a motion to reconsider, and approve the H-1B.

    If the reviewing office does not approve the case, it will then forward the appeal and the related record of proceedings to the Administrative Appeals Office for a decision.

    Generally,  you will need to specifically identify the erroneous conclusions of law, or incorrect statements of fact in the unfavorable decision. In visa petition proceedings, it is the Petitioner’s burden to establish eligibility for the immigration benefit sought, in this case an H-1B Visa. If the appeal does not demonstrate that the Petitioner presented sufficient evidence under the appropriate legal standard, then the appeal may be denied as well. Our experienced employment immigration lawyers can help you prepare a brief that concisely explains your position and why your application should be approved.

    Our Boston Business Immigration Attorneys Can Help

    If your H-1B Visa application was denied and you are worried about your immigration status, our employment and work visa immigration lawyers can help by providing you with an evaluation of your case. Call FitzGerald Law Company today and schedule a consultation at (617) 303-2600 of fill out our online appointment request.

    Client Reviews and Testimonials

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    I really like that they speak so many languages and can help anyone!

    FitzGerald Law Company recently handled my immigration case for me and everything turned out great! The staff is excellent all the way from the secretary and assistant all the way up to the attorney. My attorney was Desmond Fitzgerald himself and he was excellent.

    Swarsatie R.

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    Yoseph A.

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    Ahmed B.

    I really like that they speak so many languages and can help anyone!

    FitzGerald Law Company recently handled my immigration case for me and everything turned out great! The staff is excellent all the way from the secretary and assistant all the way up to the attorney. My attorney was Desmond Fitzgerald himself and he was excellent.

    Swarsatie R.

    They have been very supportive and professional

    My family and I have had an excellent experience with Desmond and his team at FitzGerald Law Company. They have been very supportive and professional, addressing our every concern. I feel fortunate to have found them and worked with them on my son's immigration case.

    Yoseph A.

    Highly recommend their services

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    Natasha A.

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

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    A very well organized firm, experienced and professional.

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    Mike A.

    They helped me with a personal injury case

    Highly recommend Mr Desmond Fitzgerald and his team. They helped me with a personal injury case. He was realistic about outcomes and professional and came through for me.

    Garo M.

    Experienced, professional, and caring

    It was a great pleasure to have Mr. FitzGerald as my attorney. He was always there when I needed him. He is experienced, professional, and caring. I would recommend his services to anyone. I greatly appreciate what he did for me and would like to take the chance to express my gratitude to his hard work. Thank you very much Mr. FitzGerald. You'r the best...

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    Very professional and dedicated a lot of time to my case

    Very professional and dedicated a lot of time to my case...kept me in the know throughout the whole process. I definitely recommend FitzGerald Law Company to anyone looking for representation in a court case. Thank you Desmond and the entire team.

    James K.

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    Mr Desmond and his team did a remarkable job in immigration for my family and I. He explained things in a way that was easily understandable and things went smoothly. Highly recommended

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    Very professional and dedicated a lot of time to my case

    Very professional and dedicated a lot of time to my case...kept me in the know throughout the whole process. I definitely recommend FitzGerald Law Company to anyone looking for representation in a court case. Thank you Desmond and the entire team.

    James K.

    He explained things in a way that was easily understandable and things went smoothly

    Mr Desmond and his team did a remarkable job in immigration for my family and I. He explained things in a way that was easily understandable and things went smoothly. Highly recommended

    Gassim F.

    They made the process very smooth and pleasant

    Desmond and his team did a great job during my husband’s green card application. Very diligent, reliable and knowledgeable. They made the process very smooth and pleasant. Highly recommended!

    Karol S.

    The team is wonderful, efficient and very helpful/ professional

    The best lawfirm in Massachusetts. The team is wonderful, efficient and very helpful/ professional.

    Zulia O.

    They make the process as simple as possible

    Our experience with the FitzGerald Law Company is beyond positive. They make the process as simple as possible and are there to help and support the entire time. Everyone we've been in touch from their office was nice and helpful. We won the case and we would definitely use their services again. Thank you Juan & the team!

    Anonymous for Firm

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    A very professional and committed team...They put in a lot of time into my case all the while keeping me informed of any and all developments. I definitely recommend FitzGerald Law Company to anyone seeking legal representation. Thank you Desmond and the entire team.

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    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Anonymous for Firm

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Anonymous for Firm

    I was very happy working with them and will be happy to work with them again

    The lawyer did an excellent job, it was really wonderful and inspiring to have him as a lawyer, he truly handled my case and everything went as expected. They always call or sent me an email to inform me the progress of my case, I am always feel welcomed when I meet with them. I was very happy working with them and will be happy to work with them again in the future.

    Anonymous for Firm

    I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer

    Desmond FitzGerald and his staff handles the daunting immigration legal paperwork with the utmost professionalism but always keeping the experience personal and realistic. I always felt that that I mattered. FitzGerald & Company has many payment options and they work with you to set up a payment plan which is affordable. {para}I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer.

    Anonymous for Firm

    They make the process as simple as possible

    Our experience with the FitzGerald Law Company is beyond positive. They make the process as simple as possible and are there to help and support the entire time. Everyone we've been in touch from their office was nice and helpful. We won the case and we would definitely use their services again. Thank you Juan & the team!

    Anonymous for Firm

    They put in a lot of time into my case all the while keeping me informed of any and all developments

    A very professional and committed team...They put in a lot of time into my case all the while keeping me informed of any and all developments. I definitely recommend FitzGerald Law Company to anyone seeking legal representation. Thank you Desmond and the entire team.

    Anonymous for Firm

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    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Anonymous for Firm

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Anonymous for Firm

    I was very happy working with them and will be happy to work with them again

    The lawyer did an excellent job, it was really wonderful and inspiring to have him as a lawyer, he truly handled my case and everything went as expected. They always call or sent me an email to inform me the progress of my case, I am always feel welcomed when I meet with them. I was very happy working with them and will be happy to work with them again in the future.

    Anonymous for Firm

    I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer

    Desmond FitzGerald and his staff handles the daunting immigration legal paperwork with the utmost professionalism but always keeping the experience personal and realistic. I always felt that that I mattered. FitzGerald & Company has many payment options and they work with you to set up a payment plan which is affordable. {para}I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer.

    Anonymous for Firm

    I really like that they speak so many languages and can help anyone!

    FitzGerald Law Company recently handled my immigration case for me and everything turned out great! The staff is excellent all the way from the secretary and assistant all the way up to the attorney. My attorney was Desmond Fitzgerald himself and he was excellent.

    Swarsatie R.

    They have been very supportive and professional

    My family and I have had an excellent experience with Desmond and his team at FitzGerald Law Company. They have been very supportive and professional, addressing our every concern. I feel fortunate to have found them and worked with them on my son's immigration case.

    Yoseph A.

    Highly recommend their services

    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Natasha A.

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Patricia M.

    A very well organized firm, experienced and professional.

    My experience was exceptionally great. A very well organized firm, experienced and professional. Customer service was excellent and the lawyer that handled my case, Desmond Fitzgerald was the best. He was very thorough and very experienced. He knows what he's talking about. All in all, I had a positive experience and I highly recommend this company, especially Desmond Fitzgerald, he's awesome.

    Mike A.

    They helped me with a personal injury case

    Highly recommend Mr Desmond Fitzgerald and his team. They helped me with a personal injury case. He was realistic about outcomes and professional and came through for me.

    Garo M.

    Experienced, professional, and caring

    It was a great pleasure to have Mr. FitzGerald as my attorney. He was always there when I needed him. He is experienced, professional, and caring. I would recommend his services to anyone. I greatly appreciate what he did for me and would like to take the chance to express my gratitude to his hard work. Thank you very much Mr. FitzGerald. You'r the best...

    Ahmed B.

    Very professional and dedicated a lot of time to my case

    Very professional and dedicated a lot of time to my case...kept me in the know throughout the whole process. I definitely recommend FitzGerald Law Company to anyone looking for representation in a court case. Thank you Desmond and the entire team.

    James K.

    He explained things in a way that was easily understandable and things went smoothly

    Mr Desmond and his team did a remarkable job in immigration for my family and I. He explained things in a way that was easily understandable and things went smoothly. Highly recommended

    Gassim F.

    They made the process very smooth and pleasant

    Desmond and his team did a great job during my husband’s green card application. Very diligent, reliable and knowledgeable. They made the process very smooth and pleasant. Highly recommended!

    Karol S.

    The team is wonderful, efficient and very helpful/ professional

    The best lawfirm in Massachusetts. The team is wonderful, efficient and very helpful/ professional.

    Zulia O.

    They make the process as simple as possible

    Our experience with the FitzGerald Law Company is beyond positive. They make the process as simple as possible and are there to help and support the entire time. Everyone we've been in touch from their office was nice and helpful. We won the case and we would definitely use their services again. Thank you Juan & the team!

    Anonymous for Firm

    They put in a lot of time into my case all the while keeping me informed of any and all developments

    A very professional and committed team...They put in a lot of time into my case all the while keeping me informed of any and all developments. I definitely recommend FitzGerald Law Company to anyone seeking legal representation. Thank you Desmond and the entire team.

    Anonymous for Firm

    Highly recommend their services

    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Anonymous for Firm

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Anonymous for Firm

    I was very happy working with them and will be happy to work with them again

    The lawyer did an excellent job, it was really wonderful and inspiring to have him as a lawyer, he truly handled my case and everything went as expected. They always call or sent me an email to inform me the progress of my case, I am always feel welcomed when I meet with them. I was very happy working with them and will be happy to work with them again in the future.

    Anonymous for Firm

    I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer

    Desmond FitzGerald and his staff handles the daunting immigration legal paperwork with the utmost professionalism but always keeping the experience personal and realistic. I always felt that that I mattered. FitzGerald & Company has many payment options and they work with you to set up a payment plan which is affordable. {para}I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer.

    Anonymous for Firm

    I really like that they speak so many languages and can help anyone!

    FitzGerald Law Company recently handled my immigration case for me and everything turned out great! The staff is excellent all the way from the secretary and assistant all the way up to the attorney. My attorney was Desmond Fitzgerald himself and he was excellent.

    Swarsatie R.

    They have been very supportive and professional

    My family and I have had an excellent experience with Desmond and his team at FitzGerald Law Company. They have been very supportive and professional, addressing our every concern. I feel fortunate to have found them and worked with them on my son's immigration case.

    Yoseph A.

    Highly recommend their services

    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Natasha A.

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Patricia M.

    A very well organized firm, experienced and professional.

    My experience was exceptionally great. A very well organized firm, experienced and professional. Customer service was excellent and the lawyer that handled my case, Desmond Fitzgerald was the best. He was very thorough and very experienced. He knows what he's talking about. All in all, I had a positive experience and I highly recommend this company, especially Desmond Fitzgerald, he's awesome.

    Mike A.

    They helped me with a personal injury case

    Highly recommend Mr Desmond Fitzgerald and his team. They helped me with a personal injury case. He was realistic about outcomes and professional and came through for me.

    Garo M.

    Experienced, professional, and caring

    It was a great pleasure to have Mr. FitzGerald as my attorney. He was always there when I needed him. He is experienced, professional, and caring. I would recommend his services to anyone. I greatly appreciate what he did for me and would like to take the chance to express my gratitude to his hard work. Thank you very much Mr. FitzGerald. You'r the best...

    Ahmed B.

    Very professional and dedicated a lot of time to my case

    Very professional and dedicated a lot of time to my case...kept me in the know throughout the whole process. I definitely recommend FitzGerald Law Company to anyone looking for representation in a court case. Thank you Desmond and the entire team.

    James K.

    He explained things in a way that was easily understandable and things went smoothly

    Mr Desmond and his team did a remarkable job in immigration for my family and I. He explained things in a way that was easily understandable and things went smoothly. Highly recommended

    Gassim F.

    They made the process very smooth and pleasant

    Desmond and his team did a great job during my husband’s green card application. Very diligent, reliable and knowledgeable. They made the process very smooth and pleasant. Highly recommended!

    Karol S.

    The team is wonderful, efficient and very helpful/ professional

    The best lawfirm in Massachusetts. The team is wonderful, efficient and very helpful/ professional.

    Zulia O.

    They make the process as simple as possible

    Our experience with the FitzGerald Law Company is beyond positive. They make the process as simple as possible and are there to help and support the entire time. Everyone we've been in touch from their office was nice and helpful. We won the case and we would definitely use their services again. Thank you Juan & the team!

    Anonymous for Firm

    They put in a lot of time into my case all the while keeping me informed of any and all developments

    A very professional and committed team...They put in a lot of time into my case all the while keeping me informed of any and all developments. I definitely recommend FitzGerald Law Company to anyone seeking legal representation. Thank you Desmond and the entire team.

    Anonymous for Firm

    Highly recommend their services

    My husband and I reached out to FitzGerald Law Company, and we can only speak very highly of them. Very professional & reliable. I want to say big thanks to Desmond and Zrinka, who helped us throughout my immigration process. Highly recommend their services!

    Anonymous for Firm

    They are on top of everything

    The Fitzgerald team is great and ready to help. They provide accurate information and never give a false picture of one's situation. They are on top of everything and work with you. The team are very thorough at what they do. I would highly recommend their legal services.

    Anonymous for Firm

    I was very happy working with them and will be happy to work with them again

    The lawyer did an excellent job, it was really wonderful and inspiring to have him as a lawyer, he truly handled my case and everything went as expected. They always call or sent me an email to inform me the progress of my case, I am always feel welcomed when I meet with them. I was very happy working with them and will be happy to work with them again in the future.

    Anonymous for Firm

    I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer

    Desmond FitzGerald and his staff handles the daunting immigration legal paperwork with the utmost professionalism but always keeping the experience personal and realistic. I always felt that that I mattered. FitzGerald & Company has many payment options and they work with you to set up a payment plan which is affordable. {para}I would definitely recommend Desmond and FitzGerald & Company to anyone looking for a professional, trustful immigration lawyer.

    Anonymous for Firm