Federal Agencies, Agency Memos & Announcements

INS Memo on Role of Visa Consultants in Immigration Law

6/9/92 AILA Doc. No. 93042090.

CO 292.2

Subject: LEGAL OPINION: Role of Visa Consultants in the Practice of Immigration Law

Date: Jun 9 1992

To: Jack Penca
Regional Counsel
Eastern Region

From: Office of the General Counsel

The Office of the General Counsel has been asked by the Office of the Regional Counsel, Eastern Region, to provide a written legal opinion concerning the role of visa consultants¹ in the practice of immigration law before the Immigration and Naturalization Service (the Service). This request was prompted by a letter written to William Carroll, District Director, Washington District Office, by Samuel McTyre, Chairman of the Consumer Protection and Unauthorized Practice of Law Committee of the Washington-Baltimore Chapter of the American Immigration Lawyers Association (AILA). This memorandum represents the opinion of the office of the General Counsel.

ISSUE

Is a visa consultant who is not a licensed attorney or an authorized representative as set forth in 8 C.F.R. § 292 authorized by federal immigration regulations and state laws to represent persons before the Service?

SUMMARY CONCLUSION

LEGAL ANALYSIS

Section 292 of the Immigration and Nationality Act, as amended (the Act), establishes an alien's right to counsel in immigration proceedings. This provision states:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. Section 292 of the Act; 8 U.S.C § 1362 see also 8 C.F.R. §§ 3.lS(b) and 242.10.

This statutory mandate concerning an alien's right to representation in exclusion and deportation proceedings has been expanded to apply to every case pending before the Service where an examination is required by the regulations. 8 C.F.R. 292.S(b); see also C. Gordon and S. Mailman, Immigration Law and Procedure,§ 4.10(1) (1991); but see Ali v. INS, 661 F. Supp. 1234 (D. Mass. 1986) (neither the INA nor its regulations provide for the right to counsel or the right to crossexamine and call witness at marriage petition proceedings).

The term "representation" before the Board and the Service includes practice and preparation as defined in 8 C.F.R. §§ 1.l(i) and (k). 8 C.F.R. § 1.l(m).

"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 or with the Service, or any officer of the Service, or the Board.

8 C.F.R. § 1.l(i).

The term "preparation," constituting practice, means:

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, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure.

8 C.F.R. § 1.l(k).

Based on the interplay of these definitions, the scope of the term "representation" is a very broad one. It includes activities which range from incidentally preparing papers for a person, to giving a person advice about his or her case, to appearing before the Service on behalf of a person. Therefore, it is the opinion of this office that a visa consultant or any other person who is not a licensed attorney or authorized representative pursuant to 8 C.F.R. § 292 may not engage in the representation of persons as defined in federal immigration regulations.

Section 292 of Title 8 of the code of Federal Regulations lists the various categories of persons who are entitled to represent aliens before the Service and the Board of Immigration Appeals (the Board). These categories include: attorneys in the United States; law students and law graduates not yet admitted to the bar; "reputable individuals" appearing without direct or indirect remuneration; accredited representatives; accredited officials; and attorneys outside the United States provided they represent person only in matters outside the geographical confines of the United States. 8 C.F.R. § 292. l(a)( 1)-(6). Visa consultants, specifically, are not included within this list of authorized representatives². In order to qualify as an authorized representative, a visa consultant must be able to meet the requirements of one of the categories listed in 8 C.F.R. § 292.1.

The scope of the term "representation" does not extend to those services which consist only of assisting persons in completing preprinted Service forms. However, even such minimal assistance must be in exchange for nominal remuneration, if any, and the assistance must not hold himself or herself out as qualified in the area of immigration and naturalization law and procedures. Therefore, a visa consultant or any other person who is not a licensed attorney or authorized representative pursuant to 8 C.F.R. § 292 will not be in violation of federal immigration regulations if he or she engages in these limited activities and receives either no remuneration or nominal remuneration.

If a person is not authorized by federal law to practice in immigration proceedings, the question remains whether he or she is subject to state regulation of the practice of law. The District of Columbia Court of Appeals has implied that the answer to this question is yes. In In Re Amalgamated Development Co,. Inc., 375 A.2d 494 (D.C.), cert denied, 434 U.S. 924 (1977), the court concluded that "[l]f the federal government has not granted a license in this area [of patent law], a state is free to enforce its own licensing regulations." 375 A.2d at 497 (emphasis in original). Analogous reasoning would lead to the conclusion that if a person is not authorized by federal law to practice in immigration proceedings, then he or she is subject to state regulations. Oregon State Bar v. Ortiz, 713 P.2d 1068, 1070 (Or.Ct.App. 1986).

Whether or not representation by a visa consultant in violation of federal immigration regulations also violates state laws can only be determined by applying the statutes and regulations that govern the practice of law in each particular state. A review of the case law in this area reveals a number of cases involving visa consultants and immigration related services.

The practice of law embraces in general all advice to clients and all action taken for them in matters connected with the law. Quarles v. State Bar of Texas, 316 S.W.2d 797, 803 (Tex. Civ. App. 1958). The controlling purpose of all laws, rules, and decisions forbidding unlicensed persons to practice law is to protect the public against persons inexperienced and unlearned in legal matters from attempting to perform legal services. Grievance Committee State Bar of Texas, Twenty-First Congressional District v. Corvall, 190 S.W.2d 130, 131 (Tex. Civ. App. 1945). The objective is to protect the public against injury from acts or services, professional in nature, deemed by both the legislative and the courts to be the practice of law, done or performed by those not deemed by law to be qualified to perform them. Grievance Committee State Bar of Texas, Twenty First Congressional District v. Dean, 190 S.W.2d 126, 129 (Tex. Civ. App. 1945). The character of the service and its relation to the public interest determines whether services performed by a lay person constitute the practice of law. Id.

Among the leading cases in this area is Unauthorized Practice Committee, State Bar of Texas V. Cortez, 692 S.W.2d 47 (Tex. 1985). In the case, the respondents (neither of whom were licensed attorneys) were engaged in the business of providing immigration and bookkeeping services, which included assistance to persons who were seeking to obtain immigration visas and permanent residency. Id. at 48. The most common practice performed by Mrs. Cortez was the selection and completion of the I-130 form (Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa) for her customers. She conducted interview with her customers in conjunction with filing out these forms, and charged $400 for the total preparation. Id. She also completed several other types of Senrice forms for customers, including the I-140, I-600, N-600, and OF-230. Id.

The Supreme Court of Texas concluded that:

Although the act of recording a client's response to the question on the form 1-130 probably does not require legal skill or knowledge, the act of determining whether the I- 130 should be filed at all does require special legal ·skills .... [A]dvising a client as to whether to file an I-130 requires a careful determination of legal consequences.

Id. at 50. The court's conclusion effectively found that the respondents' actions constituted the unauthorized practice of law. Id. at 51.

Another case involving a visa consultant is the Ortiz case mentioned above. In Ortiz, the court noted that virtually no immigration case is routine and that immigration law is complex and constantly changing. Ortiz, 713 P.2d at 1070. Knowledge of immigration benefits, and the Service forms and procedures which are required to obtain these benefits, requires legal training and judgement. Id. Any error in the advice given to the steps taken in this regard could result in deportation, loss of continuous resident status, and permanent loss of entry right. Id. The court concluded that Mr. Ortiz had engaged in the unauthorized practice of law when he advised and assisted an alien in obtaining his permanent resident status. Id. See also, The Florida Bar v. MorenoSantana, 322 So.2d 1³ (Fla. 1975)(unauthorized practice of law when respondent rendered legal advice, filed papers, and held hmself out as qualified in immigration matters); The Florida Bar v. Retureta-Cabrera, 322 So.2d 28 (Fla. 1975) (unauthorized practice of law when respondent maintained immigration consultant business and appeared in immigration cases, either personally or in the preparation of or filing of documents on behalf of other persons); but see Bennett v. Goldsmith, 6 N.Y.S.2d 748 (N.Y. App. Div. 1938), aff d, 19 N.E.2d 927 (N.Y. 1939) (defendant's business of preparing papers and documents for immigration visas was not practice of law under the New York statutes then in force.)

CONCLUSION

A visa consultant or any other person who is not a licensed attorney or authorized representative pursuant to 8 C.F.R. § 292 may not engage in the representation of persons as defined in federal immigration regulations. Whether or not representation by such a person in violation of federal immigration regulations also violates state laws can only be determined by applying the statues and regulations that govern the practice of law in each particular state. The Service is obliged to ensure that such persons do not represent aliens in proceedings or interviews before its officers. However, the Service is neither obliged nor in a position to take any action or position regarding whether these persons are engaging in the unauthorized practice of law in any given state.

/s/Grover Joseph Rees III
General Counsel

¹ For purposes of this opinion, a "visa consultant" is a person who provides advice or services and/or prepares legal instruments for persons in connection with the immigration laws for nominal remuneration and who is not an accredited representative of a recognized organization pursuant to 8 C.F.R. § 292 et seq.

² A "representative" is defined as "a person who is entitled to represent others as provided in §§292.l(a)(2), (3), (4), (5), (6), and § 292.J(b) of this chapter." 8C.F.R. § 1.l(j).

³ A related question which should be addressed here is whether a nonlawyer who is authorized by federal law to make appearances and represent persons may be subject to state regulations which deem this same activity lo be the unauthorized practice of law. In Sperry v. State of Florida ex rel. The Florida Bar, 373 US. 639 ( 1963 ), the Supreme Court held that "by virtue of the Supremacy clause, Florida may not deny to those failing to meet its own qualifications the right lo perform the functions within the scope of the federal authority." Id. at 385.

Genco opinion 93-25

CO 292.2 April 20, 1993

Anton R. Valukas, Esq.
Jenner & Block
One IBM Plaza
Chicago, IL 60611

Dear Mr. Valukas:

We are writing in response to your letter of September 21, 1992, requesting clarification of the Office of the General Counsel Legal Opinion, Role of Visa Consultants in the Practice of Immigration Law, dated June 9, 1992. In this legal opinion, this office concluded that "a visa consultant or any other person who is not a licensed attorney or authorized representative pursuant to 8 C.F.R. Sec. 292 may not engage in the representation of persons as defined in federal immigration regulations." Legal Opinion, at 3. In your letter, you expressed particular concern over the apparently broad definition of "representation" and its applicability to the activities of your client, . You also expressed concern regarding the opinion's discussion of state decisions addressing the unauthorized practice of law.

We have reviewed carefully our June 9, 1992 Legal Opinion and your September 21, 1992 letter, and have taken into account our discussion with you and your client on September 10, 1992 regarding this matter. In light of this review, we hold to our opinion that the mere selection of an INS Form I-130 by a visa consultant for a client's use could satisfy the "advice" element in the term "preparation," as defined in 8 C.F.R. Sec. 1.1(k) (1992). As such, a visa consultant could be required to satisfy the accreditation requirements of 8 C.F.R Sec. 292.

In your letter, you noted that " supplies its customers with INS forms appropriate to the customer's needs (primarily I-130s) but only in those instances in which the form selection process itself does not involve a legal judgement." Letter, at 1. You further concluded that "[s]upplying [a customer] with the only government form which applies to his situation... does not amount to advice." Letter, at 7. However, the very selection by a visa consultant of a Form I-130 for a client's use could constitute a legal judgement that the client and/or his alien relatives are not eligible to apply for any other immigration benefit(s). An accurate determination of such eligibility requires extensive knowledge of often complex immigration laws and their applicability to individual cases.

Furthermore, the initiation of a proper and adequate visa petition process for a client often involves more than the mere completion of a Form I-130. Certain visa petitions require the additional completion of a Form G-325A (Biographic Information) for both the petitioner and prospective beneficiary, while others require inclusion of a Form I-485 (Application for Permanent Residence) and/or a Form I-765 (Application for Employment Authorization). Moreover, even if the I-130 is the only relevant form, proper instruction regarding the visa petition process requires knowledge about the allocation of immigrant visas to the various foreign states, as well as the current availability of immigrant visas for the various preference categories and countries.+1 Proper instruction on the visa petition process also requires knowledge about the various procedures involved after the Form I-130 is completed and before a visa can actually be issued.

By selecting a Form I-130 for a lay client, translating it, transcribing the responses, and then assisting in securing supporting documentation, a visa consultant implicitly suggests to a client that this is the form that will best satisfy the request of securing legal immigration status for his or her relatives. By making such a recommendation, a visa consultant could be "hold[ing] himself out as qualified in... immigration ... procedures," 8 C.F.R. Sec. 1.1(k) (1992), and could therefore be required to satisfy the accreditation requirements of 8 C.F.R. Sec. 292.

We note for your information that under 8 C.F.R. Sec. 292.1 (a)(4), persons representing organizations properly accredited pursuant to 8 C.F.R. Sec. 292.2 are authorized to represent others before the Service and the Board of Immigration Appeals (BIA). Under Sec. 292.2, a non-profit organization can petition the BIA for recognition so that its representatives can practice before the Service and the Board. For recognition by the Board, an organization must establish that: "[i]t makes only nominal charges" and (2) "[i]t has at its disposal adequate knowledge, information and experience." 8 C.F.R. Sec. 292.2(a)(i), (2) (1992).

Once an organization is recognized by the Board, it "may apply [to the Board] for accreditation of persons of good moral character as its representatives." 8 C.F.R. Sec. 292.2(d) (1992). An application for accreditation must "set forth the nature and extent of the proposed representative's experience and knowledge of immigration and naturalization law." Id.

Under the regulations, interpretations of 8 C.F.R. Sec. 292 are expressly delegated to the Board of Immigration Appeals. 8 C.F.R. Sec. 292.6 (1992). The Board has held that in the context of 8 C.F.R. Sec. 292.2, the term "nominal" means "a very small quantity or something existing in name only as distinguished from something real or actual." In re American Paralegal Academy, Inc., 19 I&N 386, 387 (BIA 1986). The Board further concluded that "[t]he fact that an [organization's] fees may be substantially less than those charged by law firms is not a proper standard for consideration since such organization are not law firms. By regulation, recognition is limited to nonprofit religious, charitable, or social service organization." Id.; see also In re Lutheran Ministries of Florida, Interim Dec. 3132 (BIA 1990).

As discussed above, any organization seeking to represent persons before the Service and the BIA must prove to the Board that it satisfies the recognition and accreditation requirements of 8 C.F.R. Sec 292. Furthermore, even those organizations or persons providing minimal assistance that does not amount to representation can only receive nominal remuneration, if any. 8 C.F.R. Sec. 1.1(k) (1992). The authority to determine whether a specific organization is in compliance with federal immigration regulations lies with the Board of Immigration Appeals. Those seeking to represent persons before the Service and Board must comply with these current regulations.

We also hold to our analysis of state decisions addressing the unauthorized practice of law. We focused on decisions concerning immigration-related services, finding that these cases most closely address the subject of our Legal Opinion. We have reviewed the state court decisions cited in your letter and found that only one, Florida Bar v. Dobbs, 508 So. 2d 326 (Fla. 1987), addressed the practice of immigration law. Although the injunction in Dobbs did not "prevent the Respondent from engaging in the preparation and typing of forms promulgated by the [INS], the Florida Supreme Court permitted such activities only "in accordance and within the guidelines of Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1987) and Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981)."+2 Dobbs, 508 F.2d at 327.

In Brumbaugh, which sets forth the guidelines noted in Dobbs, the Florida Supreme Court specifically instructed that "Marilyn Brumbaugh may not make inquiries nor answer questions from her clients as to the particular forms which might be necessary." 355 So. 2d 1186, 1194 (Fla. 1987). The court further noted that "[w]hile Marilyn Brumbaugh may legally ... type up instruments which have been completed by clients, she must not engage in personal legal assistance in conjunction with her business activities, including the correction of errors and omissions." id. This holding, as it related to the selection of specific forms, remained unchanged after Florida Bar Re Amendment To Rules Regulating the Florida Bar (Chapter 10), 510 So. 2d 596, 597 (Fla. 1987) (permitting "limited oral communication to assist individuals in the completion of legal forms approved by the Supreme Court of Florida").

Upon our review of the non-immigration cases cited in your letter, we do not believe that they endorse the unauthorized practice of law, where such practice includes the selection and distribution of those forms a visa consultant deems specifically applicable to a client's situation and where an erroneous selection of forms could cause significant harm to a client and his family.

In light of our view, we hold to our June 9, 1992 Legal Opinion. We appreciate you interest in this matter.

Very truly yours,

/s/ Grover Joseph Rees III
General Counsel

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*Footnotes

+1. Familiarity with the current visa availability numbers and immigration laws could be especially important in the visa petition context. For example, a client could be eligible for naturalization while his or her relative visa petition is being processed; his naturalization could, in turn, favorably affect visa availability for the relative beneficiary.

+2. The Kaiser decision does not address the involvement of non-attorneys in immigration matters. In Kaiser, the Florida Supreme Court enjoined the defendant, a New York immigration attorney, from "any form of advertising... that would tend to mislead the public into believing he was a member of the Florida Bar." Kaiser, 397 So. 2d at 1133-34.