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US Immigration: How to Choose a Legal Representative

Written by Henry J. Chang
Introduction

Finding a qualified legal representative for a U.S. immigration case is often a challenging task. The first issue that potential clients should consider is whether their proposed legal representative is lawfully permitted to represent them. For this reason, it is important to understand the regulatory framework that governs the use of legal representatives in U.S. immigration cases. A detailed discussion of this framework appears below.

United States Federal Laws

Immigration law in the United States is within the jurisdiction of the Federal Government. For this reason, potential clients should consider federal statutes and regulations of the federal agencies responsible for the administration of immigration law. One of the most important regulations within the context of United States immigration appears at Title 8 of the Code of Federal Regulations ("8 CFR").

8 CFR specifically describes who may represent clients in immigration matters before United States Citizenship and Immigration Services ("USCIS") and United States Customs & Border Protection ("USCBP"). According to 8 CFR §292.1(a), a person entitled to representation may be represented by any of the following:
  1. Attorneys in the United States. This includes any attorney who is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law.
  2. Law students and law graduates not yet admitted to the bar. This includes a law student who is enrolled in an accredited law school or a law school graduate who is not yet admitted to the bar, provided that:

    1. He or she is appearing at the request of the person entitled to representation;
    2. 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;
    3. 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
    4. The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials 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 may act as a representative, provided that:

    1. He is appearing on an individual case basis, at the request of the person entitled to representation;
    2. He is appearing without direct or indirect remuneration and files a written declaration to that effect;
    3. 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
    4. His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.

  4. Accredited representatives. A person representing a non-profit religious, charitable, social service, or similar organization established in the United States and recognized as such by the Board of Immigration Appeals may designate a representative or representatives to represent clients in immigration matters.
  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 §1.1(f), who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he/she resides and who is engaged in such practice. Provided that he/she represents persons only in matters outside the geographical confines of the United States (i.e. the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands), and that the official before whom he/she wishes to appear allows such representation as a matter of discretion.

Because immigration law is under Canadian Federal jurisdiction, immigration consultants who are members of the Canadian Society of Immigration Consultants ("CSIC") are permitted to represent clients in Canadian immigration matters. However, members of CSIC are recognized as representatives for the purpose of Canadian immigration only; they are not permitted to represent clients in U.S. immigration matters in exchange for remuneration (either direct or indirect). These immigration consultants act in violation of United States federal laws because they do not fall under the list of permitted representatives described in 8 CFR §292.1(a).

In recent years, other non-lawyer organizations (i.e. Canadian pardon services, paralegals, etc.) have started offering U.S. immigration services to the public. Unfortunately, none of these organizations meet the requirements of 8 CFR §292.1(a). They also act in violation of United States federal laws.

United States State and Canadian Provincial Laws

State Laws

In the United States, each state regulates the practice of law within its jurisdiction. As a general rule, any lawyer who practices law within the jurisdiction of a particular state must be licensed to practice law in that state.

Notarios and immigration consultants who act as paid representatives in U.S. immigration matters act in violation of state law and are often subject to criminal penalties. Unfortunately, most notarios and immigration consultants fail to disclose this important fact to their clients.

Provincial Laws

As in the United States, each province in Canada regulates the practice of law within its jurisdiction. Any lawyer who practices law within the jurisdiction of a particular province must be licensed to practice law in that province.

Most provincial law societies in Canada impose a Foreign Legal Consultant ("FLC") licensing requirement on foreign lawyers who wish to give advice on foreign law (i.e. U.S. immigration law) within their jurisdiction. In some provinces, these licensing requirements apply equally to lawyers who are already full members of the Bar within the province.

For example, in the Province of Ontario, the Law Society of Upper Canada ("LSUC") requires that any lawyer in the province who seeks to provide advice on foreign law (including U.S. immigration) must be licensed as an FLC by the LSUC. This requirement applies not only to foreign lawyers but also to lawyers who are already full-licensed members of the Ontario Bar.

The LSUC's By-law-14 states that no person shall give legal advice in Ontario respecting the law of a foreign jurisdiction except in accordance with the provisions of the by-law. It requires lawyers licensed outside of Canada to apply to the Law Society for a permit to practise the law of their home jurisdiction in Ontario. Applicants must fulfill the requirements outlined in the by-law to qualify for this permit and must report annually to the Law Society to renew their permit. Two most important requirements for licensure as an FLC are:

  1. The applicant must be authorized to practise law in the foreign jurisdiction; and
  2. The applicant must have professional liability insurance for the giving of legal advice in Ontario respecting the law of the foreign jurisdiction which is at least equivalent to that required of a licensee for the licensee's practice of law in Ontario.

Therefore, any person who provides legal advice on foreign law (including U.S. immigration law) in the Province of Ontario, without first having obtained an FLC license, acts in violation of the Law Society Act, R.S.O. 1990, Chapter L.8. Section 26.2(2) of the Law Society Act states as follows:

Every person who gives legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws is guilty of an offence and on conviction is liable to a fine of,

  1. Not more than $25,000 for a first offence; and
  2. Not more than $50,000 for each subsequent offence. 2006, c. 21, Sched. C, s. 22.

Unfortunately, most Ontario-licensed immigration lawyers practicing in the Province of Ontario are not licensed as FLCs by the LSUC. This is because many are not actually licensed to practice law in the United States; this renders them legally ineligible to apply for an FLC license. In addition, some Ontario-licensed immigration lawyers who hold licenses to practice in the United States still choose not to obtain an FLC license because they do not wish to purchase additional U.S. professional liability insurance, which is considerably more expensive than Ontario professional liability insurance.

A lawyer who gives legal advice in the Province of Ontario without having first obtained an FLC license commits a provincial offense and is liable to substantial penalties. Unfortunately, lawyers who choose to violate the Law Society Act rarely disclose this fact to their clients.

Summary of Relevant Laws

U.S.-Licensed Lawyers

Under United States federal law, U.S.-licensed lawyers are clearly permitted to represent clients in United States immigration matters. However, they must also comply with any applicable state or provincial licensing requirements in the jurisdiction where they practice law.

A U.S-licensed lawyer who gives advice on U.S. law within the Province of Ontario must also be in possession of a valid FLC license. Therefore, potential clients seeking to retain a U.S.-licensed lawyer practicing law within the Province of Ontario should confirm that the lawyer also possesses a valid FLC license.

Foreign-Licensed Lawyers (i.e. Canadian Lawyers)

Under United States federal law, a foreign lawyer (including a Canadian-licensed lawyer) may (subject to the discretion of the immigration officer) act as a representative in a U.S. immigration matter but only in matters outside the geographical confines of the United States and only in the discretion of the immigration officer. This severely limits the matters in which a foreign lawyer may lawfully act in U.S. immigration matter.

In most cases, a petition must be filed by a U.S. petitioner (i.e. U.S. employer, U.S. citizen, or U.S. permanent resident) on behalf of the beneficiary (i.e. the foreign national.) Since only the petitioner is entitled to legal representation, such matters are not outside the geographical confines of the United States. However, foreign attorneys should be able to act in matters where the foreign national directly files the application; examples of such matters include TN applications under the NAFTA (but not L-1 petitions submitted at the Canada-U.S. Border in accordance with the NAFTA) and nonimmigrant waiver applications. Unfortunately, many foreign lawyers act in violation of this restriction.

Even if a foreign-licensed lawyer successfully establishes that he or she falls within the requirements of 8 CFR §292.1(a), if the lawyer gives advice on U.S. immigration law within the Province of Ontario, he or she must also possess a valid FLC license or the lawyer commits a provincial offense and is liable to substantial penalties.

Notarios, Immigration Consultants, and Paralegals

Notarios, immigration consultants, and paralegals who receive any remuneration (either directly or indirectly) for their assistance may not represent clients in U.S. immigration matters because they do not fall under any of the categories described in 8 CFR §292.1(a). State and provincial governments also consider these individuals to be engaged in the unauthorized practice of law. Many U.S. states have successfully prosecuted these individuals. In contrast, many Canadian provinces have a dismal record in prosecuting individuals who are engaged in the unauthorized practice of law.

Conclusion

For the reasons described above, potential clients should always retain a U.S.-licensed lawyer for a U.S. immigration matter. If the lawyer practices law in a different jurisdiction (i.e. Canada), the lawyer should also be licensed in that jurisdiction or hold an FLC license authorizing that person to give advice on foreign law in that jurisdiction. Of course, if the lawyer practices specifically in the Province of Ontario, the FLC license requirement will apply even if the lawyer is already licensed to practice Canadian law in that province.
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