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TOUGH NEW LAWS CRACK DOWN ON "IMMIGRATION
CONSULTANTS"
by Michael J. Gurfinkel, Esq.
California has joined the Immigration and Naturalization
Service and the Federal Government in cracking down on the unauthorized
practice of law by so-called "immigration consultants".
Violators of this new law could be subject to civil penalties
of up to $100,000 and imprisonment of up to one year in county
jail. In addition, there are strict disclosure requirements,
where consultants must include, in any advertisement, that he
or she is not an attorney. These laws demonstrate
that the U.S. and State governments will not tolerate immigration
consultants who try to practice law, or mislead clients into thinking
that they are attorneys.
Unfortunately, many of these consultants are violating
the law, when they engage in the "unauthorized practice of
law". Remember, "practice of law" includes
"assessing the facts of a case, and advising someone concerning
how to obtain an immigration benefit", and even includes
advising individuals concerning the selection, completion, and
filing of INS forms (such as petitions or applications), in addition
to actually appearing before the INS. Even advice limited
to something as "simple" as selecting and completing
the proper INS form constitutes the "practice of law",
since this advice depends on a legal conclusion that the client
is eligible for the particular benefit.
Under the law (Business & Professions Code Section
22440, et seq., as amended by AB 1858), an "immigration consultant"
is restricted as to the type of assistance he or she can offer
a client. The consultant can give only non-legal
assistance or advice on an immigration matter, as to the following
types of matters:
-
Completing an immigration form (i.e. a petition
or application), but not advising a person as to his
or her answer on the form;
-
Translating a person's answer to questions on
the forms;
-
Securing supporting documents, such as birth
certificates, which may be necessary to complete the forms;
and/or
-
Submitting completed forms on the person's behalf,
and at the person's request, to the INS.
In other words, an immigration consultant's services
are limited to "clerical" types of functions, and under
no circumstances may an immigration consultant offer any legal
advice. In fact, the law specifically states, "every
person engaged in the business or acting in the capacity of an
immigration consultant shall only offer non-legal assistance
or advice in an immigration matter".
The new law also has strict disclosure requirements,
where the immigration consultant must inform clients (and the
public at large) that he or she is not an attorney, and may not
offer legal advice or perform legal services:
-
The consultant must provide the client with
a written contract, containing, in 10-point bold type, a statement
that the "immigration consultant is not an attorney and
may not perform the legal services that an attorney performs".
-
The immigration consultant must conspicuously
display, in his or her office, a notice (or sign) that is
at least 12x10 inches, with bold face type or print, that
the consultant is not an attorney.
-
All advertisements by an immigration consultant
(whether in print, or on radio or television), must include
"a clear and conspicuous statement that the immigration
consultant is not an attorney". In other
words, this law would require an immigration consultant to
clearly state, "I am not an attorney, and may not offer
legal advice".
According to the law, a person who violates this
law "shall be subject to a civil penalty not to exceed one
hundred thousand ($100,000) for each violation ... In addition
... , a violation is a misdemeanor, punishable by ... imprisonment
in the county jail for not more than one year ..."
Many people have been cheated or misled by immigration
consultants, who tricked or fooled people into thinking that the
consultant is an attorney, or may somehow offer legal advice.
This scheme can no longer be done under the new law, which now
requires these consultants to clearly reveal to the public that
they are not attorneys, and that they may not offer legal advice.
I know that both in the U.S. and in the Philippines,
some people represent themselves as "immigration consultants",
bragging that they are "very knowledgeable", and can
provide legal advice or assistance, "just like an attorney".
However, it would appear that many of these consultants are engaging
in illegal activity, because they are, in effect, practicing law,
in violation of the law.
The message of this legislation is that if people
want legal advice, they should go to a lawyer, who is
authorized to practice law, and that immigration consultants are
breaking the law if they start offering legal advice.
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