What Constitutes the Practice of Immigration Law
Generally, because nearly every decision or action taken in regard to an immigration matter could directly affect an immigrant’s legal rights, both the New York State courts and U.S. federal government define legal advice and legal representation in a way that includes almost every service extending beyond purely clerical duties.
New York courts define legal advice as including the preparation of any forms involving judgment that relates to a legal claim. The practice of law includes the preparation of legal instruments of all kinds, all advice to clients, and all actions taken for clients in matters connected with the law. Similarly, USCIS defines legal advice as: 1) counseling on how to answer questions on your immigration forms; and 2) indicating which immigration options a person may have.
Legal representation includes the concepts of “preparation” and “practice.” “Preparation” is very similar to “legal advice.” In the context of immigration law, it is defined by the federal government as the research of facts and laws, and any advice, relating to the completion of immigration forms, but it does not include merely transcribing verbal responses onto a blank form for fees. Such fees must be nominal at most (extremely small). “Practice” includes preparing any immigration papers.
Thus, if a non-lawyer, such as a notary or “independent paralegal,” prepares forms and provides advice on matters involving legal consequences, he or she is engaging in the unauthorized practice of law. Merely including an attorney in this process does not cure this problem. The attorney must remain in contact with the client, maintain control over the case, not be employed by the non-lawyer and not do business with non-lawyers who are providing legal assistance.
In other words, only lawyers or BIA Accredited Representatives can interview clients, decide which application forms should be completed, file an application with the government, retain control of the file, and make judgments about whether the client is eligible for a benefit and what information is required to qualify for the benefit.
The issue of the selection of forms constituting the practice of law, in particular, has always been a source of confusion. For reasons described above, and explained in greater length in Appendix E, the selection of forms can, and most often will, constitute the practice of immigration law.
Who Can Practice Immigration Law
The rules governing who can provide immigration legal assistance can be found at 8 C.F.R. §1292.1.
Lawyers admitted to the bar of any state in the United States can practice immigration law. Because immigration law is federal law, attorneys can practice – including appearing in Court and before immigration agents – in any of the 50 states so long as they are a member in good standing of at least one state’s bar.
However, attorneys practicing in states where they are not licensed must be careful not to give advice concerning other areas of law that often intersect with immigration law, such as criminal or family law, as that would constitute unauthorized practice of law in that state.
Federal regulations also allow for law students and recent law graduates to appear before immigration authorities on behalf of clients so long as they do so under the supervision of an attorney.
BIA Accredited Representatives
Recognizing that there is a lack of access to affordable/low-cost legal service providers practicing immigration law and wanting to increase access to legal help for immigrants who cannot afford full legal fees, the US Department of Justice (DOJ) allows certain non-lawyers to provide legal representation before immigration-only authorities. This program is administered through the Board of Immigration Appeals (BIA), which is part of the USDOJ’s Executive Office for Immigration Review (EOIR).
BIA Accredited Representatives are staff or volunteers of non-profit organizations who charge no or nominal fees for legal services and have undergone extensive training in order to provide legal representation in the immigration context only. Their work can only be done through a BIA Recognized Organization, which must go through an application process to demonstrate it has adequate resources and supervisory staff with immigration law expertise.
The rules governing BIA Recognition & Accreditation can be found at 8 C.F.R. § 1292.2.
Current rosters of recognized agencies and accredited representatives, as well as an overview of the program, are available at www.justice.gov/eoir/recognition-and-accreditation-program.
For any additional information, you can contact the New York State BIA Trainer at the New York Immigration Coalition: 212-627-2227 or http://www.nyic.org/training/BIAaccreditation
Federal regulations also allow for a trusted individual (“reputable individuals”) to speak on behalf of an immigrant before the immigration authorities, if he or she meets the following criteria:
- The individual is of good moral character;
- He or she is not receiving direct or indirect compensation for services provided (the individual must file a written declaration to that effect);
- There is a trusted, pre-existing relationship with the person he or she is representing (g., family member, neighbor, clergyman, business associate, personal friend). This requirement can be waived in the discretion of the immigration official but only if no other adequate representation is available; and
- The immigration official before who he or she is appearing provides permission for the reputable person to assist the immigrant.
This individual cannot be someone who regularly engages in preparation and practice of immigration filings or holds himself or herself out to the public as someone qualified to do so.
Who Cannot Practice Immigration Law
Immigrant Service Providers
Immigrant Service Providers (ISP) are defined and regulated by New York State Law in the General Business Law (GBL) Article 28-C (as amended by the Immigrant Assistance Service Enforcement Act, see Appendix C).
An ISP is a person, organization, company, or other entity providing immigration services but who is not an admitted attorney in good standing, a BIA recognized organization or accredited representative, or government agency or staff of such agency acting under the authority conferred by the social security law. NY GBL § 460-a.
ISPs cannot provide legal advice, including selecting or filling out of immigration forms unless they are only transcribing information onto a form pre-selected by the client without providing any explanation of what information is being requested.
In certain other countries, predominantly in Latin America but also elsewhere, “notaries” are allowed to provide legal services. Unscrupulous individuals in the United States prey on the confusion between “Notarios” (or “Notaires”) in other countries and notary publics in the United States. This confuses community members into thinking that notary publics have the lawful ability to assist with immigration status filings. Over time, the word “notario” has come to mean not just those working in Spanish-speaking countries, but any non-lawyer/non-BIA representative purporting to provide immigration legal services when he or she is not authorized to do so.
While some notarios can prepare applications (for a fee) that will ultimately result in a grant of legal status for their clients (whether or not the person actually qualifies for it), they are not authorized to practice law and often use immigration services as a business opportunity (see Chapter 5, “Common Scams”).
Sadly, there are attorneys who will take advantage of a vulnerable client base and either take money for applications they never file, or submit applications on behalf of their clients for programs their clients cannot qualify for. These actions are unethical and these attorneys should be reported to the local state bar as well as USCIS and EOIR.
It is also very common for well-intentioned individuals to slip into the unauthorized practice of law while trying to provide help to their communities. Someone connected through a house of worship or community center, for example, may decide to help members apply for certain immigration benefits, and then acquire a reputation for providing immigration assistance that will only make their workload grow. They may even charge a small fee for the costs or their time. Either way, these “good Samaritans” accumulate such a large client base that they can no longer responsibly service them, and are no longer acting as a “reputable individual” as defined by law. Moreover, the individual lacks the experience and training to properly assist immigrants and will not recognize pitfalls or ineligibility grounds that could lead to an immigrant being placed in deportation proceedings.
***Currently, new proposed rules regarding BIA Recognition and Accreditation are pending before EOIR. One proposed change would move the responsibilities from the BIA to EOIR’s Office of Legal Access Programs (OLAP). For updated information please go to www.justice.gov/eoir or contact the New York Immigration Coalition at 212-627-2227 or http://www.nyic.org