Selected Issues on Citizenship and Immigration Law:
Unauthorized Practice of Law Wednesday June 29, 2011 1:30 p.m. – 2:30 p.m. EST
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Patricia Wonder Instructor,
CUNY School of Professional Studies
Our Panel of Presenters
Thomas J. Shea,
Director of Training and Technical Assistance, New York Immigration Coalition (NYIC)
Manhattan District Attorney’s Office’s Immigrant Affairs Program
Immigration Law Studies Advanced Graduate Certificate Program Courses • Introduction to Immigration Law • Business Immigration Law
• Family-Based Immigration Law • Proceedings in Immigration Court • Naturalization and Citizenship
CUNY Citizenship Now! Events
The goal of Citizenship Now! events is to help eligible individuals prepare their forms N-400, Application for Naturalization. Most events are held on Saturdays.
CUNY Citizenship Now! Immigration Centers
CUNY Citizenship Now! centers offer free immigration services to all members of the community- CUNY students and non-students.
The Corps consists of volunteers who provide free naturalization application assistance at Citizenship Now! Events in New York City.
Volunteer with the CUNY/NYC Citizenship Now! Corps
Complete a registration form at www.cuny.edu/citizenshipnow/volunteer
Immigrant Affairs Program
Mission: Daysi Mejia
• The Immigrant Affairs Program (IAP) was created to address the victimization of immigrants. Immigrants seeking residency or citizenship are often preyed upon by criminals who steal from them by employing a variety of fraudulent scams. – IAP does not report the victims or witnesses to the federal immigrant enforcement authorities.
How Does the Program Work? • Complaints can be made in several forms: Daysi Mejia
– IAP hotline: (212) 335-3600. – Visiting IAP’s office. – Sending IAP a letter. • Each complaint is evaluated and when appropriate, the complaint will be assigned to an Assistant District Attorney who will investigate and or prosecute the case. • You can report a crime to IAP regardless of your immigration status. • IAP has access to court certified interpreters.
Since the Program was created in December of 2007, it has processed about 1900 complaints.
The Most Common Fraud/Scam
#1 Scam: 50% of the fraud that is reported • Individuals or immigration service providers, who represent themselves to be attorneys or who provide legal advice when they are not licensed attorneys or accredited by the Board of Immigration Appeals (BIA).
The Law WHO IS AUTHORIZED TO PROVIDE IMMIGRATION LEGAL SERVICES? Daysi Mejia
• Only a licensed attorney (licensed in any state of the United States) or an individual who is accredited by the BIA and who works for an organization that is recognized by the BIA can represent an immigrant for payment in connection with an immigration matter or court case. – Non lawyers and non-accredited individuals who work for a nominal fee can only provide clerical assistance.
Generally, who is authorized to provide immigration legal services?
What is Clerical Assistance?
Non-lawyers and non-accredited individuals may:
• Translate. • Notarize (if authorized). • Make copies. • Transcribe – client tells provider what to write in the blank spaces on the form. • Help obtain birth certificates.. • Make appointment for fingerprinting. • Make free referrals to immigration lawyers, BIA accredited organizations and other resources.
The Law in New York
In New York if you want to charge a Fee for providing clerical services, you must comply with: 1. Immigration Services Provider Law a. New York State General Business Law (GBL). Article 28-c, §§ 460-a – 460-j. b. NYC Administrative Code (AC) §§ 20-770 – 20-778. Whether you provide services for FREE or charge a FEE you must comply with: 2. Unauthorized Practice of the Law a. Judiciary Law §478.
GBL § 460 & AC § 20-770 Summary of Prohibited Conduct: • Providers cannot give legal advice or practice law. Daysi Mejia
• Federal regulations define “Representation” before the Service or the Board as “practice” and “preparation.” 8 CFR §§ 1.1(m); 1001.1(m). What is giving legal advice/practice of law? • “Practice” is defined as the “act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper application, or petition on behalf of another person or client before the service…or the Board.” 8 CFR §§ 1.1(i); 100(i). • Preparation is defined as the “study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers.” 8 CFR §§ 1.1(K); 1001.1(K).
Examples of Practice of Law and/or Legal Advice Daysi Mejia
Anything other then filling out a form as directed by a client MAY be the practice of law. – Telling a client what form to fill out. – Telling a client how to answer questions on the form. – Telling a client what immigration benefits they may or may not qualify for. – Telling a client what something on the form means. – Telling a client whether or not to file a form/application. – Speaking on behalf of a client during an immigration interview.
GBL § 460 and AC § 20-770 Summary of Prohibited Conduct: Daysi Mejia
• No service provider can threaten to report a customer to immigration or other authorities, or to hurt the customer’s legal status in any way. • No service provider can charge to refer someone to an attorney or agency. • No service provider can keep original documents. • No service provider may “use or advertise the title of lawyer, attorney at law or equivalent terms… or represent or advertise other titles or credentials, including but not limited to ‘Notary Public’, ‘Accredited Representative of the Board of Immigration Appeals’ or ‘Immigration Consultant’ that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter…”
GBL § 460 and AC § 20-770
Summary of Prohibited Conduct: “Notarios”, Immigration Consultants and Travel Agents are NOT authorized to offer legal services and may not represent someone before USCIS, the immigration courts or give legal advice. The use of the title “Immigration Consultant” for someone providing immigration services is prohibited under NYS and NYC law.
GBL § 460 and AC § 20-770
• An Immigration Service provider must provide a written contract in English and a language understood by the customer.
• Every provider must keep copies of all customer’s documents for three years, and must return them upon request.
• The contract may be canceled within three business days without fee or penalty.
Signs: • Every provider must post legible signs, stipulating that they are not a licensed attorney and may not give legal advice.
• Every Provider must also maintain a $50,000 surety bond for NYS and $50,000 for NYC. Thus, if you are providing services to anyone in NYC you must have a $100,000 bond.
Judiciary Law § 478 The unauthorized practice of law:
A person not admitted to the Bar of the State of NY and who has not taken the constitutional oath may not: a. practice law (giving of legal advice and preparation of legal documents).
b. appear in court as an attorney (for a person other then himself). c. furnish attorneys or counsel to render legal services. d. hold himself out to the public as being entitled to practice law in any manner and may not use or advertise the title of lawyer, attorney and counselor at law or advertise that either alone or with other people has, owns, conducts or maintains a law office.
In the State of New York, immigration service providers can only provide:
Why is it Important?
Why is it important to hire a licensed attorney or an accredited individual within a recognized organization to do immigration legal work? – The consequences of filing for an immigration benefit that the immigrant does not qualify for can be deportation; therefore, it is important to hire a person who has the right training and skills. – Someone who is licensed is also subject to discipline or could even lose their license for any ethical violations or for other kinds of wrongdoing. Immigrants can file complaints with disciplinary committees.
Crime Prevention: Tips
When seeking immigration services: 1. Obtain the full name, address and telephone numbers of the person being hired.
If you are scammed or wronged, having the person’s full name and contact information will make it much easier to investigate and locate the person.
Be careful - most scammers do not want to give a full name because they know that information can be used to tie them to the crime.
Crime Prevention: Tips When seeking immigration services:
2. Make sure the person hired is qualified to handle immigration matters. Consider asking the following questions: • Ask the person what his/her credentials are and specifically ask the following: • In what state are you licensed or accredited? • Since when? • How many years of experience do you have in the field? 3. Confirm whether the person is licensed or BIA accredited. • To learn how to confirm whether an individual is a licensed attorney or accredited by the BIA see the Immigrant Affairs Program Brochure.
All victims are strongly encouraged to contact the Immigrant Affairs Program at 212-335-3600
http://manhattanda.org/victimservices/ immigrantaffairs.shtml “Working together we can seek justice”
Immigration Fraud Resources Outside of New York Daysi Mejia
• American Bar Association Commission on Immigration http://www.americanbar.org/groups/public _services/immigration/projects_initiatives/ fightnotariofraud.html
What BIA Recognition and Accreditation Are
What is the BIA?
• Board of Immigration Appeals. • Appeals court for immigration court cases. • Part of the Executive Office for Immigration Review (EOIR). • EOIR is part of the Department of Justice. • Also in charge of granting agency recognition and individual accreditation.
R&A Allow Non-lawyers to Practice Immigration Law Thomas Shea
• Recognition is for the nonprofit agency. • Accreditation is for the specific individual staff members who will be doing the immigration work. • Accredited Representatives may then practice immigration law just as an attorney would before. − the DHS. − or the DHS and EOIR.
Extent of Law Practice by BIA Reps
• Accredited rep may practice immigration law ONLY at the recognized agency that applied for her/his accreditation. • Accredited rep may ONLY do immigration work under the auspices of that recognized agency, at the site that applied for the accreditation.
What is “Recognition”?
• BIA grants “recognition” only to non-profit agencies. • Agency must have recognition in order for agency staff to be accredited. • Only recognized non-profits may apply for staff members to become accredited.
Criteria for Recognition Must show that agency is: Thomas Shea
• Non-profit religious, charitable, or social service agency. • That agency charges only “nominal” fees. • That agency has knowledge of, and experience with, immigration law, including maintaining an immigration resource library. • 8 CFR § 292.2(a) and §1292.2(a).
Duration of Recognition
• Lasts indefinitely. • No renewal necessary. • If agency changes names, need to let BIA know so they can update the roster of recognized agencies, which is available at. • http://www.justice.gov/eoir.
Recognition is Site Specific
If your agency has more than one physical site, and you would like to offer immigration legal services at more than one site, each site needs to apply separately for recognition, even though the sites are part of the same overall agency.
• Rules are laid out at 8 CFR § 292.2(d) and §1292.2(d). • For individual staff members working at a recognized agency. • Agency applies on behalf of staff members. • Specific to agency – if Anna is accredited at Agency A and then leaves to work at Agency B, she would no longer be accredited and Agency B would have to re-apply for her (provided Agency B was also a recognized agency). • Accredited reps may be part-time workers, and may be consultants or volunteers.
Two Levels of Accreditation
• “Partial” accreditation allows practice before the DHS only. May do everything an attorney would do at DHS (while working for the recognized agency). • “Full” accreditation allows practice before DHS and EOIR (Immigration Court and BIA) while working for the recognized agency.
Duration of Accreditation • Lasts for three years. Thomas Shea
• Must be renewed by application every three years; must apply for renewal at least 60 days before accreditation expires; then you will be allowed to continue practicing even if the BIA does not respond before expiration date. • Accredited rep must continue to attend trainings after accreditation, in order for accreditation to be renewed. • Specific to the agency – not transferable to another agency.
So Only Accredited Reps can do Immigration Work at my Agency? Thomas Shea
• If agency has accredited reps, other staff may work with them on immigration matters. • Accredited rep must supervise the non-accredited staff, and only accredited rep may sign G-28s and accompany clients to interviews. • Non-accredited staff would be like paralegals.
How to Apply for Recognition and Accreditation The nuts and bolts
Criteria for Recognition
• 8 CFR §§292.2 (a) and (b) & 1292.2(a) & (b). • Non-profit religious, charitable, or social services agency. • Charges only “nominal” fees. • Knowledge of and experience with immigration law, including maintaining an immigration resources library.
• There is no specific application form beyond the form EOIR31, a one-page form available at http://www.justice.gov/eoir. • Federal regulations (8 CFR § 292.2), BIA case law, and instructions to EOIR-31 indicate what kinds of documents need to be sent to satisfy each element of the recognition requirements.
How to Show: Non-profit Status
• Certificate of incorporation as non-profit. • By-laws. • 501(c) status letter. • Indicate on form EOIR-31 whether agency is “religious, charitable, or social services” (or 2 or more of those).
How to Show: “Nominal” fees
• No definition specifically, although if fees will provide more than 50% of the funding for your immigration program, recognition will be denied. • American Paralegal Academy, 19 I&N Dec. 386 (1986). • Look at what currently recognized agencies in your area are charging. • What to submit: list of fees (“Fee schedule”) and list of total funding for your agency in current year.
What to Submit: Fee Schedule
• List of fees for each service you plan to provide. • Required part of recognition application. • “No one will be denied services based on an inability to pay” – BIA really likes to see this on your fee schedule. – Have a written fee reduction/waiver policy? – Have a written sliding fee policy?
What to Submit: Statement of Agency Funding
• Bare bones list of every source of funding the agency gets for the year. • For each source, list total amount agency receives per year. • Include estimation of how much you expect immigration program would bring in per year.
How to Show: “Adequate Knowledge, Information, and Experience of Immigration Law” Thomas Shea
• Include immigration resume of each staff member applying for accreditation. • Library resources. • Mention any connections agency has with immigration attorneys and/or BIA reps outside the agency (NOTE that this is NOT mandatory for recognition unless you do not have an attorney or a fully accredited rep on staff and you are applying for partial accreditation for a staff person). – “access to additional expertise”.
Poll Question True or False: When applying for BIA recognition, you must have an immigration attorney on staff. Choose the best answer.
Library Resources Immigration library must have: Thomas Shea
• Current copy of the Immigration and Nationality Act (updated every year to reflect new laws). • Current copy of volume 8 of the Code of Federal Regulations (known as 8 CFR), also updated annually. • Internet access – USCIS, USICE, USCBP, USDOS, EOIR, etc. • NOTE that the INA and 8 CFR are available free on the internet, at www.uscis.gov.
STRONGLY recommended: • General overview of immigration law like Kurzban’s Immigration Law Sourcebook.
• Other books on specific immigration topics (like family immigration, naturalization, asylum) as needed by your program. • Membership in professional associations.
Recognition Application What to include
What to Include
• EOIR-31 • Cover letter • Proof of non-profit status • List of immigration resource materials • Fee schedule • List of funding sources • Organizational chart, showing supervision of immigration staff • Letters of support
• This one-page form is available online at http://www.usdoj.gov/eoir/formslist.html. • Basically asks for name and address of agency. • Takes about 5 minutes to fill out.
Cover Letter From Agency Director
• Introduce agency and the great work it does for immigrants. • Ask for recognition. • Explain how the agency meets the recognition criteria. • Introduce staff who are applying for accreditation, and explain how they meet the criteria for accreditation.
Proof of Non-profit Status
• Certificate of incorporation. • By-laws.
• (501)(c)(3) letter.
List of Immigration Resource Materials
• Immigration and Nationality Act. • 8 Code of Federal Regulations (CFR). • Internet access. • Materials from immigration trainings. • Any other immigration resource materials.
• List of immigration services the agency plans to provide.
• Specific fee listed for each service. • “No one will be denied services based on an inability to pay”.
List of Funding Sources
• Bare-bones list of all sources, public and private, of agency’s funding for the current year. • List total amount agency expects from each source per year. • Include estimate of how much agency will bring in from immigration fees.
• Chart of agency personnel, showing which positions supervise other positions. • Should indicate who will supervise the immigration staff.
Letters of Support/Recommendation
• From other local agencies that know your agency’s work and can attest to the good work you do and the importance of your being able to offer immigration legal services in your community. • From outside immigration attorney, if agency has relationship with one (NOTE: this is NOT REQUIRED if already retained an immigration attorney or have a fully accredited rep on staff).
Nice Articles About the Agency and the Great Work it does Thomas Shea
• If you have any, include some. • NOT mandatory to submit.
Where to Mail Original Recognition Application
• Mail originals to the BIA at this address: Recognition and Accreditation Program Coordinator Executive Office for Immigration Review Board of Immigration Appeals Clerk’s Office P.O. Box 8530 Falls Church, VA 22041 • Current R&A Coordinator: – As of 05/02/11, no one chosen to fill vacancy. – (703) 305-9029.
Copies to USCIS and ICE
• MUST send copy of complete application to local USCIS District Director at 26 Federal Plaza. • MUST send copy of complete application to local ICE Office of Chief Counsel. • Make sure to fill out “Proof of Service” on second page of EOIR31, indicating that you have mailed these copies.
USCIS Ms. Andrea Quarantillo Thomas Shea
District Director United States Citizenship & Immigration Services Jacob Javits Federal Building 26 Federal Plaza New York, NY 10278 • Always confirm address before you mail! • Send by secured mail for proof of receipt.
USICE Theresa A. Pauling Thomas Shea
Chief Counsel Immigration and Customs Enforcement U.S. Department of Homeland Security 26 Federal Plaza, Room 1130 New York, New York 10278
• Call beforehand to confirm: (212) 264-5916. • Send by secure mail for proof of receipt.
Accreditation For individual staff members
• 8 CFR §§292.2(d) and 1292.2(d) requires that candidates for accreditation have “experience and knowledge of immigration and naturalization law and procedure” and “good moral character.” • Agency applies for accreditation – individuals may not apply on their own.
• Two levels: partial and full.
Partial Accreditation: What It Is • Practice before DHS (USCIS, USICE, USCBP). Thomas Shea
• Permitted to do everything lawyer can do before the DHS. • Including: signing G-28s, representation at USCIS interviews. • May choose which services before DHS rep wants to perform.
• Easier to get than full accreditation. • Most people apply first for partial accreditation; may decide after several years of experience to apply for full.
Full Accreditation: What It Is
• Practice before the DHS, in Immigration Court, and before the BIA. • May act like a lawyer in court. • Need a lot more training and experience. – Experience writing briefs, conducting direct examination, speaking in court.
• Individual must work for a recognized agency;
• Demonstrate knowledge of and experience with, immigration law and procedure; • Good moral character.
Knowledge and Experience
• Staff will need training on immigration law and procedure. • There is no formula for exactly how much training staff members need. • ONGOING TRAINING is required to renew accreditation.
• Work under supervision of immigration attorney or accredited rep absolutely worth listing.
• Immigrant Legal Resource Center 40-hour training. BIA regards very highly. Intensive, and has exam at the end – www.ilrc.org. • NYIC runs trainings throughout the year on wide variety of immigration topics. • CLINIC also offers trainings throughout the year – www.cliniclegal.org. • Focus on topics that will be most relevant for the services agency wants to offer.
Poll Question Maria, a college graduate with a Bachelor of Arts in Economics and a minor in pre-law, works for a BIA recognized agency and is preparing to obtain BIA accreditation. She has no background whatsoever in immigration law.
What education must she demonstrate to the BIA in order to obtain BIA accreditation?
• Accreditation lasts for three years. • Must re-apply every three years. • Supposed to re-apply at least 60 days before accreditation expires. • Ongoing training is required to renew accreditation. • Terminates if staff member leaves the agency – tied to the specific recognized agency.
Good Moral Character
• Just need supervisor to attest to staff member’s having good moral character. • No other requirements to prove this.
What Should be Included in Accreditation Application Thomas Shea
• Resume of staff member, listing all immigrationrelated experience and trainings; • Letter(s) of recommendation from supervisor and others who know person’s work well (2 letters are entirely sufficient in most cases).
• Certificates and agendas from trainings attended, if you have those. • Proof of service on USCIS and USICE. – (many people forget this!!).
What Happens Next
• Agency may send in applications for recognition and accreditation at the same time – NOTE that there is no reason not to do this – if you don’t, the whole process will just take longer. • Must serve copies of whole packet on local USCIS district office at the same time and local ICE office; local offices have 30 days to recommend for or against. • CIS and ICE often choose not to respond.
• If CIS and/or ICE timely recommends against the recognition and/or accreditation, the agency is permitted to respond, with the original response going to the BIA, and copies served on CIS and ICE.
• BIA makes the decision – so a letter from CIS or ICE recommending against approval is not necessarily fatal. • If the decision is a denial, BIA will state its reasons for the denial. Agency may apply again immediately. • If the decision is yes, newly accredited representative may immediately begin practicing immigration law at that agency.
Q&A: Our Panel of Presenters Patricia Wonder
CUNY School of Professional Studies Daysi Mejia
Manhattan District Attorney’s Office’s Immigrant Affairs Program Thomas J. Shea
Director of Training and Technical Assistance New York Immigration Coalition (NYIC)
Recorded Web Seminar
An e-mail with instructions on how to access this Web seminar and related materials will be sent to you shortly
Acknowledgements • Paul Russo
Director of Online Programs CUNY School of Professional Studies
• Antonia Levy
Instructional Technology Fellow CUNY School of Professional Studies
• Kelley Kawano
Instructional Technology Fellow CUNY School of Professional Studies
• Allan Wernick
Director CUNY Citizenship Now!
• A. Sofia Carreño
Communications Coordinator CUNY Citizenship Now!
• David Sturniolo
Communications Assistant CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant CUNY Citizenship Now!
For further questions regarding the information presented during this webinar please contact
Patricia Wonder [email protected]