Transcript Thomas Shea

Selected Issues on Citizenship and Immigration Law:
Unauthorized Practice of Law
Wednesday June 29, 2011
1:30 p.m. – 2:30 p.m. EST
How to Ask Questions During the Seminar
If you experience technical difficulties please call, 1-800-263-6317
Press 1 for GotoWebinar
then 2 for TechSupport
Patricia Wonder
CUNY School of Professional Studies
Our Panel of Presenters
Thomas J. Shea,
Director of Training and Technical Assistance,
New York Immigration Coalition (NYIC)
Daysi Mejia,
Attorney-in-Charge ,
Manhattan District Attorney’s Office’s Immigrant
Affairs Program
Immigration Law Studies Advanced Graduate
Certificate Program
• Introduction to Immigration Law
• Business Immigration Law
• Family-Based Immigration Law
• Proceedings in Immigration Court
• Naturalization and Citizenship
CUNY Citizenship Now! Events
The goal of Citizenship Now!
events is to help eligible
individuals prepare their
forms N-400, Application for
Naturalization. Most events
are held on Saturdays.
CUNY Citizenship Now! Immigration Centers
CUNY Citizenship Now!
centers offer free immigration
services to all members of the
community- CUNY students
and non-students.
The Corps consists of volunteers who provide free
naturalization application assistance at Citizenship
Now! Events in New York City.
Volunteer with the
CUNY/NYC Citizenship Now! Corps
Complete a registration form at
Immigrant Affairs Program
Daysi Mejia
• The Immigrant Affairs Program (IAP)
was created to address the victimization
of immigrants. Immigrants seeking
residency or citizenship are often preyed
upon by criminals who steal from them
by employing a variety of fraudulent
– IAP does not report the victims or
witnesses to the federal
immigrant enforcement
How Does the Program Work?
• Complaints can be made in several forms:
Daysi Mejia
– IAP hotline: (212) 335-3600.
– Visiting IAP’s office.
– Sending IAP a letter.
• Each complaint is evaluated and when
appropriate, the complaint will be assigned to an
Assistant District Attorney who will investigate and
or prosecute the case.
• You can report a crime to IAP regardless of your
immigration status.
• IAP has access to court certified interpreters.
Daysi Mejia
Since the Program was created in
December of 2007, it has
processed about 1900 complaints.
The Most Common Fraud/Scam
Daysi Mejia
#1 Scam: 50% of the fraud that is reported
• Individuals or immigration service providers,
who represent themselves to be attorneys or
who provide legal advice when they are not
licensed attorneys or accredited by the Board of
Immigration Appeals (BIA).
The Law
Daysi Mejia
• Only a licensed attorney (licensed in any
state of the United States) or an
individual who is accredited by the BIA
and who works for an organization that
is recognized by the BIA can represent
an immigrant for payment in connection
with an immigration matter or court
– Non lawyers and non-accredited
individuals who work for a nominal fee
can only provide clerical assistance.
Poll Question
Generally, who is authorized to provide
immigration legal services?
What is Clerical Assistance?
Daysi Mejia
Non-lawyers and non-accredited individuals
• Translate.
• Notarize (if authorized).
• Make copies.
• Transcribe – client tells provider what to
write in the blank spaces on the form.
• Help obtain birth certificates..
• Make appointment for fingerprinting.
• Make free referrals to immigration lawyers,
BIA accredited organizations and other
The Law in New York
Daysi Mejia
In New York if you want to charge a Fee for
providing clerical services, you must comply with:
1. Immigration Services Provider Law
a. New York State General Business Law (GBL).
Article 28-c, §§ 460-a – 460-j.
b. NYC Administrative Code (AC)
§§ 20-770 – 20-778.
Whether you provide services for FREE or charge a
FEE you must comply with:
2. Unauthorized Practice of the Law
a. Judiciary Law §478.
GBL § 460 & AC § 20-770
Summary of Prohibited Conduct:
• Providers cannot give legal advice or practice law.
Daysi Mejia
• Federal regulations define “Representation” before the Service or the Board as
“practice” and “preparation.” 8 CFR §§ 1.1(m); 1001.1(m).
What is giving legal advice/practice of law?
• “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 the service…or the Board.” 8 CFR §§ 1.1(i); 100(i).
• Preparation is defined as 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.” 8 CFR §§ 1.1(K); 1001.1(K).
Examples of Practice of Law and/or Legal
Daysi Mejia
Anything other then filling out a form as
directed by a client MAY be the practice of law.
– Telling a client what form to fill out.
– Telling a client how to answer questions on
the form.
– Telling a client what immigration benefits
they may or may not qualify for.
– Telling a client what something on the form
– Telling a client whether or not to file a
– Speaking on behalf of a client during an
immigration interview.
GBL § 460 and AC § 20-770
Summary of Prohibited Conduct:
Daysi Mejia
• No service provider can threaten to report a customer to immigration
or other authorities, or to hurt the customer’s legal status in any way.
• No service provider can charge to refer someone to an attorney or
• No service provider can keep original documents.
• No service provider may “use or advertise the title of lawyer, attorney
at law or equivalent terms… or represent or advertise other titles or
credentials, including but not limited to ‘Notary Public’, ‘Accredited
Representative of the Board of Immigration Appeals’ or ‘Immigration
Consultant’ that could cause a customer to believe that the person
possesses special professional skills or is authorized to provide advice
on an immigration matter…”
GBL § 460 and AC § 20-770
Daysi Mejia
Summary of Prohibited Conduct:
“Notarios”, Immigration Consultants and Travel Agents are NOT
authorized to offer legal services and may not represent someone
before USCIS, the immigration courts or give legal advice.
The use of the title “Immigration Consultant” for someone providing
immigration services is prohibited under NYS and NYC law.
GBL § 460 and AC § 20-770
Daysi Mejia
Documentation Retention:
• An Immigration Service provider must
provide a written contract in English and a
language understood by the customer.
• Every provider must keep copies of all
customer’s documents for three years,
and must return them upon request.
• The contract may be canceled within three
business days without fee or penalty.
Surety Bond:
• Every provider must post legible signs,
stipulating that they are not a licensed
attorney and may not give legal advice.
• Every Provider must also maintain a
$50,000 surety bond for NYS and
$50,000 for NYC. Thus, if you are
providing services to anyone in NYC
you must have a $100,000 bond.
Judiciary Law § 478
The unauthorized practice of law:
Daysi Mejia
A person not admitted to the Bar of the State of NY and
who has not taken the constitutional oath may not:
a. practice law (giving of legal advice and preparation
of legal documents).
b. appear in court as an attorney (for a person other
then himself).
c. furnish attorneys or counsel to render legal
d. hold himself out to the public as being entitled to
practice law in any manner and may not use or
advertise the title of lawyer, attorney and
counselor at law or advertise that either alone or
with other people has, owns, conducts or
maintains a law office.
Poll Question
In the State of New York, immigration
service providers can only provide:
Why is it Important?
Daysi Mejia
Why is it important to hire a licensed
attorney or an accredited individual within
a recognized organization to do
immigration legal work?
– The consequences of filing for an
immigration benefit that the immigrant does
not qualify for can be deportation; therefore,
it is important to hire a person who has the
right training and skills.
– Someone who is licensed is also subject to
discipline or could even lose their license for
any ethical violations or for other kinds of
wrongdoing. Immigrants can file complaints
with disciplinary committees.
Crime Prevention: Tips
Daysi Mejia
When seeking immigration services:
1. Obtain the full name, address and telephone
numbers of the person being hired.
If you are scammed or wronged, having
the person’s full name and contact
information will make it much easier to
investigate and locate the person.
Be careful - most scammers do not want
to give a full name because they know
that information can be used to tie them
to the crime.
Crime Prevention: Tips
When seeking immigration services:
Daysi Mejia
2. Make sure the person hired is qualified to handle
immigration matters. Consider asking the
following questions:
• Ask the person what his/her credentials are
and specifically ask the following:
• In what state are you licensed or accredited?
• Since when?
• How many years of experience do you have in
the field?
3. Confirm whether the person is licensed or BIA
• To learn how to confirm whether an individual
is a licensed attorney or accredited by the BIA
see the Immigrant Affairs Program Brochure.
Daysi Mejia
All victims are strongly encouraged to
contact the Immigrant Affairs
Program at
“Working together we can seek justice”
Immigration Fraud Resources
Outside of New York
Daysi Mejia
• American Bar Association
Commission on Immigration
What BIA Recognition
and Accreditation Are
What is the BIA?
Thomas Shea
• Board of Immigration Appeals.
• Appeals court for immigration court
• Part of the Executive Office for
Immigration Review (EOIR).
• EOIR is part of the Department of
• Also in charge of granting agency
recognition and individual
R&A Allow Non-lawyers to Practice
Immigration Law
Thomas Shea
• Recognition is for the nonprofit
• Accreditation is for the specific
individual staff members who will be
doing the immigration work.
• Accredited Representatives may then
practice immigration law just as an
attorney would before.
− the DHS.
− or the DHS and EOIR.
Extent of Law Practice by BIA Reps
Thomas Shea
• Accredited rep may practice immigration
law ONLY at the recognized agency that
applied for her/his accreditation.
• Accredited rep may ONLY do immigration
work under the auspices of that
recognized agency, at the site that applied
for the accreditation.
What is “Recognition”?
Thomas Shea
• BIA grants “recognition” only
to non-profit agencies.
• Agency must have recognition
in order for agency staff to be
• Only recognized non-profits
may apply for staff members
to become accredited.
Criteria for Recognition
Must show that agency is:
Thomas Shea
• Non-profit religious, charitable,
or social service agency.
• That agency charges only
“nominal” fees.
• That agency has knowledge of,
and experience with,
immigration law, including
maintaining an immigration
resource library.
• 8 CFR § 292.2(a) and
Duration of Recognition
Thomas Shea
• Lasts indefinitely.
• No renewal necessary.
• If agency changes names, need to
let BIA know so they can update
the roster of recognized agencies,
which is available at.
Recognition is Site Specific
Thomas Shea
If your agency has more than
one physical site, and you
would like to offer immigration
legal services at more than one
site, each site needs to apply
separately for recognition, even
though the sites are part of the
same overall agency.
Accreditation Rules
Thomas Shea
• Rules are laid out at 8 CFR § 292.2(d) and §1292.2(d).
• For individual staff members working at a recognized
• Agency applies on behalf of staff members.
• Specific to agency – if Anna is accredited at Agency A and
then leaves to work at Agency B, she would no longer be
accredited and Agency B would have to re-apply for her
(provided Agency B was also a recognized agency).
• Accredited reps may be part-time workers, and may be
consultants or volunteers.
Two Levels of Accreditation
Thomas Shea
• “Partial” accreditation allows practice
before the DHS only. May do
everything an attorney would do at
DHS (while working for the
recognized agency).
• “Full” accreditation allows practice
before DHS and EOIR (Immigration
Court and BIA) while working for the
recognized agency.
Duration of Accreditation
• Lasts for three years.
Thomas Shea
• Must be renewed by application every three
years; must apply for renewal at least 60
days before accreditation expires; then you
will be allowed to continue practicing even if
the BIA does not respond before expiration
• Accredited rep must continue to attend
trainings after accreditation, in order for
accreditation to be renewed.
• Specific to the agency – not transferable to
another agency.
So Only Accredited Reps can do Immigration
Work at my Agency?
Thomas Shea
• If agency has accredited reps, other
staff may work with them on
immigration matters.
• Accredited rep must supervise the
non-accredited staff, and only
accredited rep may sign G-28s and
accompany clients to interviews.
• Non-accredited staff would be like
How to Apply for Recognition
and Accreditation
The nuts and bolts
Criteria for Recognition
Thomas Shea
• 8 CFR §§292.2 (a) and (b) & 1292.2(a) &
• Non-profit religious, charitable, or social
services agency.
• Charges only “nominal” fees.
• Knowledge of and experience with
immigration law, including maintaining an
immigration resources library.
Thomas Shea
• There is no specific application
form beyond the form EOIR31, a one-page form available
• Federal regulations (8 CFR §
292.2), BIA case law, and
instructions to EOIR-31
indicate what kinds of
documents need to be sent to
satisfy each element of the
recognition requirements.
How to Show: Non-profit Status
Thomas Shea
• Certificate of incorporation as
• By-laws.
• 501(c) status letter.
• Indicate on form EOIR-31 whether
agency is “religious, charitable, or
social services” (or 2 or more of
How to Show: “Nominal” fees
Thomas Shea
• No definition specifically, although if fees
will provide more than 50% of the
funding for your immigration program,
recognition will be denied.
• American Paralegal Academy, 19 I&N Dec.
386 (1986).
• Look at what currently recognized
agencies in your area are charging.
• What to submit: list of fees (“Fee
schedule”) and list of total funding for
your agency in current year.
What to Submit: Fee Schedule
Thomas Shea
• List of fees for each service you plan to
• Required part of recognition application.
• “No one will be denied services
based on an inability to pay” – BIA
really likes to see this on your fee
– Have a written fee reduction/waiver
– Have a written sliding fee policy?
What to Submit: Statement of Agency Funding
Thomas Shea
• Bare bones list of every source of
funding the agency gets for the year.
• For each source, list total amount
agency receives per year.
• Include estimation of how much you
expect immigration program would
bring in per year.
How to Show: “Adequate Knowledge,
Information, and Experience of
Immigration Law”
Thomas Shea
• Include immigration resume of each staff
member applying for accreditation.
• Library resources.
• Mention any connections agency has with
immigration attorneys and/or BIA reps outside
the agency (NOTE that this is NOT mandatory
for recognition unless you do not have an
attorney or a fully accredited rep on staff and
you are applying for partial accreditation for a
staff person).
– “access to additional expertise”.
Poll Question
True or False:
When applying for BIA recognition, you
must have an immigration attorney on
staff. Choose the best answer.
Library Resources
Immigration library must have:
Thomas Shea
• Current copy of the Immigration and Nationality
Act (updated every year to reflect new laws).
• Current copy of volume 8 of the Code of Federal
Regulations (known as 8 CFR), also updated
• Internet access
• NOTE that the INA and 8 CFR are available free
on the internet, at
Library Resources
Thomas Shea
STRONGLY recommended:
• General overview of immigration law like
Kurzban’s Immigration Law Sourcebook.
• Other books on specific immigration topics (like
family immigration, naturalization, asylum) as
needed by your program.
• Membership in professional associations.
Recognition Application
What to include
What to Include
Thomas Shea
• EOIR-31
• Cover letter
• Proof of non-profit status
• List of immigration resource materials
• Fee schedule
• List of funding sources
• Organizational chart, showing supervision of
immigration staff
• Letters of support
Thomas Shea
• This one-page form is available online at
• Basically asks for name and address of
• Takes about 5 minutes to fill out.
Cover Letter From Agency Director
Thomas Shea
• Introduce agency and the great work it does
for immigrants.
• Ask for recognition.
• Explain how the agency meets the recognition
• Introduce staff who are applying for
accreditation, and explain how they meet the
criteria for accreditation.
Proof of Non-profit Status
Thomas Shea
• Certificate of incorporation.
• By-laws.
• (501)(c)(3) letter.
List of Immigration Resource Materials
Thomas Shea
• Immigration and Nationality Act.
• 8 Code of Federal Regulations (CFR).
• Internet access.
• Materials from immigration trainings.
• Any other immigration resource materials.
Fee Schedule
Thomas Shea
• List of immigration services the agency
plans to provide.
• Specific fee listed for each service.
• “No one will be denied services based on
an inability to pay”.
List of Funding Sources
Thomas Shea
• Bare-bones list of all sources,
public and private, of agency’s
funding for the current year.
• List total amount agency expects
from each source per year.
• Include estimate of how much
agency will bring in from
immigration fees.
Organizational Chart
Thomas Shea
• Chart of agency personnel,
showing which positions
supervise other positions.
• Should indicate who will
supervise the immigration
Letters of Support/Recommendation
Thomas Shea
• From other local agencies that know your
agency’s work and can attest to the good
work you do and the importance of your
being able to offer immigration legal
services in your community.
• From outside immigration attorney, if
agency has relationship with one (NOTE:
this is NOT REQUIRED if already retained an
immigration attorney or have a fully
accredited rep on staff).
Nice Articles About the Agency and the
Great Work it does
Thomas Shea
• If you have any, include some.
• NOT mandatory to submit.
Where to Mail Original Recognition Application
Thomas Shea
• Mail originals to the BIA at this address:
Recognition and Accreditation Program
Executive Office for Immigration Review
Board of Immigration Appeals
Clerk’s Office
P.O. Box 8530
Falls Church, VA 22041
• Current R&A Coordinator:
– As of 05/02/11, no one chosen to fill vacancy.
– (703) 305-9029.
Copies to USCIS and ICE
Thomas Shea
• MUST send copy of complete
application to local USCIS District
Director at 26 Federal Plaza.
• MUST send copy of complete
application to local ICE Office of
Chief Counsel.
• Make sure to fill out “Proof of
Service” on second page of EOIR31, indicating that you have
mailed these copies.
Ms. Andrea Quarantillo
Thomas Shea
District Director
United States Citizenship &
Immigration Services
Jacob Javits Federal Building
26 Federal Plaza
New York, NY 10278
• Always confirm address before you
• Send by secured mail for proof of
Theresa A. Pauling
Thomas Shea
Chief Counsel
Immigration and Customs
U.S. Department of Homeland
26 Federal Plaza, Room 1130
New York, New York 10278
• Call beforehand to confirm:
(212) 264-5916.
• Send by secure mail for proof of
For individual staff members
Thomas Shea
• 8 CFR §§292.2(d) and 1292.2(d)
requires that candidates for
accreditation have “experience
and knowledge of immigration
and naturalization law and
procedure” and “good moral
• Agency applies for accreditation
– individuals may not apply on
their own.
• Two levels: partial and full.
Partial Accreditation: What It Is
• Practice before DHS (USCIS, USICE,
Thomas Shea
• Permitted to do everything lawyer can do
before the DHS.
• Including: signing G-28s, representation at
USCIS interviews.
• May choose which services before DHS rep
wants to perform.
• Easier to get than full accreditation.
• Most people apply first for partial
accreditation; may decide after several
years of experience to apply for full.
Full Accreditation: What It Is
Thomas Shea
• Practice before the DHS, in Immigration
Court, and before the BIA.
• May act like a lawyer in court.
• Need a lot more training and experience.
– Experience writing briefs, conducting
direct examination, speaking in court.
Accreditation Criteria
Thomas Shea
• Individual must work for a
recognized agency;
• Demonstrate knowledge of and
experience with, immigration law
and procedure;
• Good moral character.
Knowledge and Experience
Thomas Shea
• Staff will need training on immigration law
and procedure.
• There is no formula for exactly how much
training staff members need.
• ONGOING TRAINING is required to renew
• Work under supervision of immigration
attorney or accredited rep absolutely
worth listing.
Thomas Shea
• Immigrant Legal Resource Center
40-hour training. BIA regards very
highly. Intensive, and has exam at
the end –
• NYIC runs trainings throughout the
year on wide variety of immigration
• CLINIC also offers trainings
throughout the year –
• Focus on topics that will be most
relevant for the services agency
wants to offer.
Poll Question
Maria, a college graduate with a Bachelor of Arts in
Economics and a minor in pre-law, works for a BIA
recognized agency and is preparing to obtain BIA
accreditation. She has no background whatsoever in
immigration law.
What education must she demonstrate to the BIA in
order to obtain BIA accreditation?
Thomas Shea
• Accreditation lasts for three years.
• Must re-apply every three years.
• Supposed to re-apply at least 60
days before accreditation expires.
• Ongoing training is required to
renew accreditation.
• Terminates if staff member leaves
the agency – tied to the specific
recognized agency.
Good Moral Character
Thomas Shea
• Just need supervisor to attest to staff
member’s having good moral
• No other requirements to prove this.
What Should be Included in Accreditation
Thomas Shea
• Resume of staff member, listing all immigrationrelated experience and trainings;
• Letter(s) of recommendation from supervisor and
others who know person’s work well (2 letters are
entirely sufficient in most cases).
• Certificates and agendas from trainings attended, if
you have those.
• Proof of service on USCIS and USICE.
– (many people forget this!!).
What Happens Next
Thomas Shea
• Agency may send in applications for
recognition and accreditation at the same
time – NOTE that there is no reason not to
do this – if you don’t, the whole process will
just take longer.
• Must serve copies of whole packet on local
USCIS district office at the same time and
local ICE office; local offices have 30 days to
recommend for or against.
• CIS and ICE often choose not to respond.
• If CIS and/or ICE timely recommends
against the recognition and/or accreditation,
the agency is permitted to respond, with the
original response going to the BIA, and
copies served on CIS and ICE.
BIA Decision
Thomas Shea
• BIA makes the decision – so a letter
from CIS or ICE recommending
against approval is not necessarily
• If the decision is a denial, BIA will
state its reasons for the denial.
Agency may apply again
• If the decision is yes, newly
accredited representative may
immediately begin practicing
immigration law at that agency.
Q&A: Our Panel of Presenters
Patricia Wonder
CUNY School of Professional Studies
Daysi Mejia
Manhattan District Attorney’s Office’s Immigrant Affairs Program
Thomas J. Shea
Director of Training and Technical Assistance
New York Immigration Coalition (NYIC)
Recorded Web Seminar
An e-mail with instructions
on how to access this Web
seminar and related
materials will be sent to
you shortly
• Paul Russo
Director of Online Programs
CUNY School of Professional Studies
• Antonia Levy
Instructional Technology Fellow
CUNY School of Professional Studies
• Kelley Kawano
Instructional Technology Fellow
CUNY School of Professional Studies
• Allan Wernick
CUNY Citizenship Now!
• A. Sofia Carreño
Communications Coordinator
CUNY Citizenship Now!
• David Sturniolo
Communications Assistant
CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant
CUNY Citizenship Now!
For further questions regarding the information
presented during this webinar please contact
Patricia Wonder
[email protected]