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INS SLAMS UNAUTHORIZED PRACTICE OF LAW BY CONSULTANTS
by Michael J. Gurfinkel, Esq.
In a recent legal opinion from INS Headquarters
in Washington, D.C., the INS has clarified that any business entity
that is not a law firm may not practice law before
the Immigration and Naturalization Service unless the entity is
a non-profit organization that has obtained prior authorization
from the Board of Immigration Appeals. The legal opinion also
explains that "practice" of law includes "assessing
the facts of a case and advising someone concerning how to obtain
an immigration benefit".
Many times, there are people who advertise themselves
as "immigration consultants" and charge a fee to people
for legal advice and services, even a "consultation fee".
According to INS, such consultants may very well be engaged in
the "practice of law," in direct violation of existing
U.S. Federal regulations.
In order for any such entity to "practice"
law, the entity must first obtain authorization from the Board
of Immigration Appeals. This is done by submitting a detailed
written statement of the services that the consultant holds itself
as willing to provide. The consultant's statement must be an affidavit
or a statement signed under penalty of perjury. It would then
be up to the Board of Immigration Appeals to decide whether or
not to authorize the consultant to practice before the Immigration
and Naturalization Service, and/or be legally allowed to offer
legal advice.
Not only does this recent legal opinion warn against
the unauthorized practice of law by immigration consultations,
but the Commissioner of the Immigration and Naturalization Service,
Doris Meissner, issued her own memo in which she, the Commissioner,
stated that, "only attorneys and accredited representatives
may engage in the practice of law before the Service". Although
there are limited exceptions to this rule, "these exceptions
are available only if the person receives no payment for the appearance."
The Commissioner noted that the "Çpractice
of law' includes advising individuals concerning the selection,
completion, and filing of Service forms [such as petitions or
applications], in addition to actually appearing before a Service
officer . . . Even advice limited to something as Çsimple' as
selecting and completing the proper Service form constitutes the
practice of law, since this advice depends on a legal conclusion
that the client is eligible for the particular benefit."
The Commissioner warned that neither the INS, nor
any INS officer, may allow any person to practice before the INS,
if that person is not eligible to do so under Board of Immigration
Appeals regulations: "It is improper for a Service Officer
to facilitate the unauthorized practice of law by any person or
entity."
The General Counsel of INS also issued a memo, about
the practice of law by unlicensed "immigration brokers,"
advising that: "Federal sanctions may be available if there
is probative evidence that the unauthorized practitioner falsely
represented to the client that the practitioner is actually authorized
to practice. In such cases, the unauthorized practitioner is not
only practicing without authority, but is also engaged in fraud."
I know that both inside the U.S. and the Philippines,
many people tout themselves as being "immigration consultants,"
bragging that they are "very knowledgeable," and can
provide legal assistance "just like an attorney." However,
under this legal opinion by INS' Headquarters, as well as existing
Federal regulations and the Commissioner of INS, many of these
consultants may, in effect, be practicing law, in violation of
the law. How can any "client" of these consultants expect
to do things the "legal way," when the very person who
is supposed to be helping them is engaging in illegal activity?
It surprises me that many aliens continue to pay
thousands of dollars of their hard-earned money to various "immigration
consultants," to help them with their immigration problems,
rather than seeking the services of an attorney.
If you are sick, don't you go to a doctor? If you
have a toothache, don't you go to a dentist? So why, when you
have something so important as your immigration status, don't
you go to an attorney, who has the education and training to assist
you, and can appear in court for you, should the need ever arise.
Many immigration consultants say that they have
worked for several years in law offices, and know how to prepare
the papers, "just like an attorney." However, what if
a person told you that they had worked at a doctor's office for
several years, would you let them perform surgery on you?
Attorneys have spent years in college and law school
being trained in the legal profession. They must be licensed by
the State Bar, attend continuing education courses and continually
monitor changes in the law. Consultants are under no such requirements.
If you are a doctor, an accountant, engineer, dentist, etc., you
know how many years of education, training, and experience you
had to go through to work at your profession and be good at what
you are doing. The same is true for the legal profession.
The bottom line is that consultants who charge for
their services may not "practice" law, unless
they have obtained authorization from the Board of Immigration
Appeals. Rather than taking chances with "unauthorized"
consultants, you should see a reputable attorney, who can
advise you about the various options available, the risks and
benefits, and the best course of action to take. Most important,
only an attorney will be there in your time of need, to be with
you in court. An "immigration consultant" cannot represent
you in Court.
Your immigration status is much too important a
matter. Your decision as to who should assist you should not be
based solely on the money you think you are saving at that moment
by using a consultant. You will undoubtedly end up spending more
money and, more important, "wasting time," if you do
not do it right the first time.
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