Unauthorized Practice of Law and Representation

This week’s topic is about who can file a G-28 on behalf of naturalization clients and how seemingly easy it is to toe the line between the authorized and unauthorized practice of law.  It is the utmost concern of all of us to protect our clients from harmful advice, so it is especially important to understand who is authorized to act on behalf of applicants.

 

What is Form G-28?

DHS Form G-28 allows an attorney or accredited representative to act on behalf of the applicant for the particular form or matter being submitted.  This person is then recognized by USCIS, CBP, or ICE (depending on the issue) to assist the applicant until the conclusion of the matter.

 

Who is an attorney?  An accredited representative?

An attorney is a person who is eligible to practice law in any state, possession or territory of the United States.  The person must also be a member in good standing of that state’s bar, and must not be under any sort of disciplinary order such as suspension, restriction, or disbarment.

  • Practice Tip: In Part 1, an attorney must list their state bar number in Question 4.  In Part 2 on the form, attorneys should check box 1, and fill in the state where they are admitted to practice law in box 1.a.  An attorney should also indicate whether they are in good standing in box 1.b.

 

An accredited representative is a person who represents an organization that has been accredited by the Board of Immigration Appeals (BIA).  These organizations are non-profit religious, charitable, or social service organizations that have been authorized to represent applicants in front of USCIS and/or the BIA.  An accredited representative can do everything an attorney can do in the immigration system EXCEPT appear in federal or state court.

  • Practice Tip:  In Part 1, the representative should list the name of the organization in Question 2.  In Part 2, the representative should check box 2, include the name of the organization in box 2.a., and indicate the date that the organization’s accreditation expires in box 2.b.

 

Can anyone else file a G-28?

The only other person that is able to file a G-28 is a law student who is working under the direct supervision of an attorney or accredited representative.  No one else should be filing Form G-28 on behalf of an applicant.  To do so would constitute the unauthorized practice of law!

 

Does a person filing a G-28 have to follow any special rules?

Yes!  Anyone who is submitting a G-28 on behalf of an applicant, regardless of whether they are an attorney, is obligated to follow the Rules of Professional Conduct for Practitioners.  If a person does not follow these rules and engages in “criminal, unethical, or unprofessional conduct,” disciplinary action can be taken against the person, including suspension and permanent expulsion.

  • You can read the complete rules here.

 

What is “unauthorized practice of law”?

Each state and federal agencies have their own rules about which persons are authorized to do certain things, but most agree that a person is “practicing law” if they are 1) representing others in court; 2) advise on legal issues; and 3) draft legal documents.

 

Department of Homeland Security (DHS) considers representation to include “practice and preparation.”

  • Practice: “the act of any person appearing in any case, either in person or through preparation or filing of any brief or other document, paper, application or petition on behalf of another person or client before or with DHS.”
  • Preparation: “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.”
    • Does not include the lawful functions of a notary public
    • Does not include a service consisting solely of assistance in the completion of blank spaces on printed DHS/USCIS forms but
      • Compensation must be minimal (if any)
        AND
      • The person must not advertise him/herself as qualified in legal matters or in immigration/naturalization

 

How do I make sure that I am not engaged in the unauthorized practice of law?

  • Make sure that you have adequate training and knowledge.
    • Immigration law is confusing!  Use resources you have available to you or consult with an attorney or accredited representative, if you are not or do not have anyone in your agency who is currently accredited.
  • Know your limits.
    • New situations come up all the time.  Each day brings a new applicant with a new issue, and sometimes it is necessary to seek advice.
  • Practice Tip: Click here for more information about the unauthorized practice of law and becoming an accredited representative.

 

What is an immigration consultant, immigration service provider, notario or notario publico?

Immigration consultants and service providers do not have a connection to either an attorney or accredited representative.  They may not even necessarily have any knowledge about immigration matters.  A notario cannot provide any legal advice or services for immigration matters UNLESS he/she has been accredited by the BIA or works for an accredited organization.

 

These providers CAN:

  • Help applicants get documents
  • Fill out forms with answers provided by applicant
  • Translate information into English
  • Make a referral to an attorney free of cost
  • Help acquire supporting docuemnts
  • Prepare for photographs and fingerprints
  • Conduct English and civics courses

 

These providers CANNOT:

  • Provide legal services or give legal advice about immigration status
  • Tell the applicant which forms to use and the answers to include
  • Keep original documents

 

Can a notary public provide legal services and advice?

No!  A notary public is authorized by law to certify documents and translations, take affidavits, and administer oaths.  Not all notary publics are attorneys, and therefore are unable to provide legal advice or legal services.

 

To find out more about fighting notario fraud, please visit http://www.stopnotariofraud.org/ .

 

If you become aware of any person or organization that you think may be committing unauthorized practice of immigration law or notario fraud, please inform Project Citizenship as soon as possible. One of our partners recently made us aware of a potentially fraudulent website claiming to assist applicants to fill out their immigration forms, and we are working with USCIS to determine how to investigate and report this service.