Beware of Non-Lawyer US Immigration Advisers

U.S. immigration and nationality law is governed by federal law: statutes from our U.S. Congress and regulations promulgated by Executive agencies such as the U.S. Citizenship & Immigration Services and the U.S. Department of State are the authorities under which visas are issued or denied. As a general matter, only attorneys qualified to practice by the bar of a U.S. state are eligible to advise on the law, prepare filings and represent individuals and businesses before the U.S. immigration agencies. Anyone who claims to be a U.S. immigration law adviser is engaging in the unauthorized practice of law unless they meet one of the criteria listed in the regulation in force on this issue, which you can find at https://www.law.cornell.edu/cfr/text/8/292.1#.

8 CFR 292.1 - Representation of others.

§ 292.1 Representation of others.

(a) A person entitled to representation may be represented by any of the following, subject to the limitations in 8 CFR 103.2(a)(3):

(1)Attorneys in the United States. Any attorney as defined in 8 CFR 1.2.

(2)Law students and law graduates not yet admitted to the bar. A law student who is enrolled in an accredited U.S. law school, or a graduate of an accredited U.S. law school who is not yet admitted to the bar, provided that:

(i) He or she is appearing at the request of the person entitled to representation;

(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;

(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and

(iv) The law student's or law graduate's appearance is permitted by the DHS official before whom he or she wishes to appear. The DHS official may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.

(3)Reputable individuals. Any reputable individual of good moral character, provided that:

(i) He is appearing on an individual case basis, at the request of the person entitled to representation;

(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and

(iv) His or her appearance is permitted by the DHS official before whom he or she seeks to appear, provided that such permission will not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself or herself out to the public as qualified to do so.

(4)Accredited representatives. A person representing an organization described in § 292.2 of this chapter who has been accredited by the Board.

(5)Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.

(6)Attorneys outside the United States. An attorney, other than one described in 8 CFR 1.2, who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice, may represent parties in matters before DHS, provided that he or she represents persons only in matters outside the geographical confines of the United States as defined in section 101(a)(38) of the Act, and that the DHS official before whom he or she wishes to appear allows such representation as a matter of discretion.

(b)Persons formerly authorized to practice. A person, other than a representative of an organization described in § 292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of § 292.3 of this chapter.

(c)Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735-7.735-7.

(d)Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.

(e) Except as set forth in this section, no other person or persons shall represent others in any case.

USCIS Proposes Significant Fee Increases

The U.S. Citizenship & Immigration Services has proposed by publication in the Federal Register to increase filing fees by a weighted average of 21%. The comment period for the proposed rule expires on 5 July 2016.

For our clients, the most commonly used forms are the I-129 nonimmigrant petition (proposed increase from $325 to $460); the I-140 immigrant petition (proposed increase from $580 to $700); and, the I-130 immigrant petition (proposed increase from $420 to $535). The I-907 premium processing request filing fee will remain at $1,225.

Here are the instructions for making comments:

You may submit comments, identified by DHS Docket No. USCIS-2016-0001, by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow this site's instructions for submitting comments.
  • Email: You may email comments directly to USCIS at uscisfrcomment@dhs.gov. Include DHS Docket No. USCIS-2016-0001 in the subject line of the message.
  • Mail: You may submit comments directly to USCIS by mailing them to Samantha Deshommes, Acting Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2016-0001 on your correspondence. This mailing address may be used for paper or CD-ROM submissions.
  • Hand Delivery/Courier: You may submit comments directly to USCIS by having them delivered to Samantha Deshommes, Acting Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. The contact telephone number is (202) 272-8377.

To review the publication in the Federal Register, see https://www.federalregister.gov/articles/2016/05/04/2016-10297/us-citizenship-and-immigration-services-fee-schedule#h-4. 

How to Stem the Tide of Refugees - Ending a Humanitarian Crisis

According to the International Rescue Committee, there are over 50 million refugees in the world today, refugees defined as people who have been displaced from their homes and forced to seek shelter elsewhere for refuge or safety.  There are many causes for this, from war to disease to government corruption. Apparently, I was surprised to learn, this is the highest level of displacement the world has seen since WWII. 

I have been listening to the UK news reports regarding the 1,600+ lives lost this year from capsized trafficking boats on the Mediterranean.  The dialogue in Europe seems to stem from panic that the whole of Africa and Asia are headed our way (e.g., I saw a startling headline in the Daily Mail, "One MILLION migrants waiting to sail to Europe.") With the upcoming UK elections, this situation is prime fodder for party vilification: Labour would let them all in; the Tories would let them all drown; SNP would break up the United Kingdom and resettle them all in London; and, UKIP would build a ring-fence around the United Kingdom so we don't have to deal with any of it.

The public has an interesting assortment of opinions on this. Yesterday on a radio programme, a gentleman caller indicated that in his opinion, the only way to stop the tide would be to get the message out that Europe won't be letting people in. In other words, dear refugees, if you make it to the promised land, you'll be turned around on your heels and face a treacherous return journey on top of the one you just survived.  His approach was one of the more moderate of the "no vacancies" approaches to the crisis. On the other hand, several callers felt that Europe has an obligation to help these people. One caller suggested that the key to ending the crisis is to lock up all would-be traffickers.  But this ignores the fact that the traffickers are responding to market demands; as with the war on drugs, if you knock off one trafficker, ten more pop up in his place.

I'd like for us to approach this situation from a different angle. First, as a technical matter, the people we are talking about are refugees not falling into standard immigration categories (e.g., employment- or family-based).  We don't get to pick and choose who we want when there is a humanitarian crisis.  People must receive help on a need-basis and no other.

So what do refugees need? According to the IRC, in the short term, refugees need immediate aid.  That is, food, water, shelter and medical care. In the longer term, refugees require tools for self-reliance, including housing, employment opportunities, clothing, medical attention and education.

People are crossing the Mediterranean to find immediate aid.  Perhaps if we do a better job of taking the aid to them, they won't need to risk everything to make it to these shores. And perhaps if we do a better of job of supporting regional resettlement (i.e., as close to their homes as possible) and community development, people will have something to build a life on.

Once these refugees make it to Europe, they become our legal responsibility and enter our national welfare systems, where the cost to taxpayers is unaffordable.  Financially, it is to our advantage to make it attractive for these people to remain in their home countries/regions where the cost of living is lower.  Our taxes will go quite a bit further to improving lives at the root of the problem.

We know we bear some responsibility for the crisis - the Middle East in particular as a result of military aggression and our political machinations, and Africa from a historical perspective. And even if you don't believe that, you must know that if we do nothing, the boats will keep coming.  Let's do better by these people, and call on our governments to invest in resettlement programs that meet the needs of refugees and stem the tide of mass migration to Europe. 

President Obama's Immigration Reforms

Last night, President Obama announced a series of reforms to U.S. immigration policy, which are to be effectuated through executive action, memoranda and/or formal notice-and-comment rule-making.  Perhaps the most significant of these is the quasi-legalization of an estimated 4-5 million immigrants currently in the United States without lawful status. However, there are also provisions that will affect non-immigrant visas and lawful employment-based immigration.  All of these provisions will take some time to come into force, so stay tuned.

The following is a brief synopsis:

1) Deferred Action for Parents - parents of U.S. citizen and lawful permanent resident children in the United States without lawful status will be placed in a program to defer their deportation and issue them interim work authorization.

2) Business Immigration Improvements - dependents of H-1Bs in H-4 status will be able to procure work authorization (once the regulations are effective) and measures to improve investor access to the US will be pursued.  A number of areas in the law that are currently unclear will be clarified (e.g., L-1B definitions, AC-21 extension definitions) and STEM OPT extensions may be lengthened.

3) Employment-Based Green Card Backlog - it sounds like there will be a provision to allow for filing of adjustment of status applications before eligibility to adjust begins.  The benefit to these applicants would be increased job portability.

4) Enforcement Measures - a variety of measures will be enacted to ensure criminals illegally in the United States will be apprehended and deported, both on the federal and state/local level.

5) Visa Numbers - the quota system will be reviewed and modified to ensure unused numbers are recaptured and the system is being run properly.

6) Deferred Action for Childhood Arrivals - the already existing program will be expanded to change age limits and date of entry requirements.

Once these reforms are fully fleshed out, more information will be provided.

Energy Sector Paving Path to Better USA Immigration Policy

As a U.S. immigration lawyer, I'm excited to spread a news item I came across suggesting a positive outlook on the impact the energy sector of North America is having on international relations, and in turn, US immigration policy. 

The Dallas Morning News reported on September 30 that "energy reform in Mexico and increased oil and natural gas production in Canada and the U.S. are paving the way for deeper integration and cooperation across North America, according to a new report. If these developments are combined with stronger economic, security and community ties — especially promoting the free movement of business professionals across the region — North America could position itself as the world’s most dynamic region." (See http://share.d-news.co/YsmwzVX.)

The report in question was issued on October 2 from a task force commissioned by the Council on Foreign Relations, chaired by Ret. General David Petraeus and Robert Zoellick of Goldman Sachs, and titled Independent Task Force Report No. 71: North America, Time for a New Focus

According to the report overview on the CFR website:

"Strengthening security through a unified continental strategy and 'continuous border innovation.' While working toward the goal of a unified security strategy for North America, the United States and Canada should support Mexican efforts to strengthen the democratic rule of law, dismantle criminal networks, contribute to the development of resilient and cohesive communities, and reduce arms smuggling and drug consumption.

'The United States should shift from border-centric security toward a strategy of combining perimeter protection with security in depth through the use of intelligence, risk assessment, shared capabilities, and joint actions throughout the region,' the report says.

Fostering a North American community through comprehensive immigration reform, workforce development, and the creation of a mobility accord to facilitate the movement of workers. The U.S. Congress should pass comprehensive immigration reforms. To better aid the movement of North American workers, the three countries should also create a North American Mobility Accord, expand visas for skilled workers, streamline recognition of professional credentials, and develop a regional educational innovation strategy.

'The Task Force strongly recommends the passage of comprehensive federal immigration reform that secures U.S. borders, prevents illegal entry, provides visas on the basis of economic need, invites talented and skilled people to settle in the United States, and offers a pathway to legalization for undocumented immigrants now in the United States,' the report says." (See http://www.cfr.org/north-america/north-america/p33536.)

Are you an extraordinary foreign national?

If you are at the top of your field in business, arts, science, education or athletics, you may be eligible to self-petition for a green card to live in the United States on a permanent (i.e., indefinite) basis.   

In order to qualify, you must demonstrate that you either have achieved a well-known international award for your work such as a Nobel Prize or an Oscar, or that you meet at least 3 out of 10 eligibility criteria.  These include:

1. Lesser nationally and internationally recognized awards or prizes for your work.

2. Leading and critical roles for organizations with a distinguished reputation in the field.

3. High salary in comparison with others in the field.

4. Commercial success (generally in the performing arts).

5. Memberships in esteemed organizations that only admit people under criteria that indicate outstanding accomplishments, as judged by experts in the field. (I'm paraphrasing.)

6. Published material about you in professional or trade journals, or major media (e.g., New York Times).

7. Original contributions that are of significance to the field.

8. Selection to judge the work of others, in a way that indicates you are an expert in your field, such as joining a peer review panel.

9. Authorship of articles in trade or professional journals, or major media.

10. Work displayed in showcases or exhibitions.

I have had some very interesting extraordinary ability cases over the years. For example, I once prepared and succeeded in an application for a coach of table tennis for disabled players - something of a niche area; however, he was the cream of the crop, as demonstrated by substantial documentation! Other cases I have prepared that were particularly fascinating included one for an Oscar-nominated documentary filmmaker, another for an award-winning multimedia journalist, one for a world-renowned yachtsman and one for a chaos theorist! 

How Scottish Independence May Affect U.S. Visa Holders

If there is a yes vote on Thursday, within the next 18 months Scotland will establish its own immigration system and explore its standing in relation to the international rights and obligations of the United Kingdom.  For any U.S. immigration policy that is based on reciprocity or a treaty with the United Kingdom, there could be changes applicable to former U.K. citizens/new Scottish citizens.

For instance, for Scottish nationals in the United States in E status, there is a question as to what happens to their visas given that they are based on a treaty with the United Kingdom. The Scottish Government takes the position that international treaties signed by the United Kingdom will continue in effect for Scotland as appropriate (e.g., a treaty with France regarding the Channel Tunnel probably would not continue for Scotland).  Another possibility is that Scotland is considered an entirely new state under international law, in which case it would need to negotiate its own treaties unless a specific treaty allows for continuation in this eventuality. Based on my understanding of public international law, the Scottish Government's position sounds plausible, and made more likely by the administrative costs entailed in negotiating treaties anew.  I'll be interested to see what the rest of the world has to say if it comes down to it.  

Assuming that continuation in effect becomes a reality, the E visa status of former U.K. citizens/new Scottish citizens is unlikely to be affected.  This assumes the U.S. government does not object, and so far, I don't believe we have information about the U.S. government's position. If there is an issue with the U.S. government on this point, presumably a new treaty would be negotiated and the current U.K.-U.S. treaty would bridge the gap.  In other words, my expectation is that all governments concerned would commit to sensible measures to ensure that no one falls through the cracks.