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Crossing The Conrad Border: Customary Federal Practice Or Ethical Quicksand For Business Immigration Practitioners?

by David Nachman, Esq.

The Immigration and Nationality Technical Corrections Act of 1994, provides for a special program to waive the two-year foreign residency requirement for foreign physicians who acquired J visa status or entered as J visa holders before June 1, 2002. The program was named after Senator Kent Conrad (D-N.D.), who sponsored legislation that broadened the federal scope of the program by allowing state administrative agencies to sponsor physicians for the waiver.

The Conrad program allows an "interested" State Department of Public Health, or its equivalent, to recommend up to 30 visa waivers per year if the applicant:

  1. obtains a no objection letter (if the medical education or training was funded by the home country); and
  2. agrees to accept bona fide full-time employment at a health facility within 90 days of receiving the waiver; and
  3. practices medicine for a total of (3) three years in a shortage area unless the Attorney General determines that "extenuating circumstances" prohibit service in that shortage area, in which case the applicant must obtain another offer of employment in an underserved area; and
  4. does not practice medicine in an area not designated a shortage area; and
  5. fulfills the contract terms with the state health care facility. If the particular "interested" state body decides to support the application, the application will be forwarded to the U.S. Department of State for a final decision.
While the legal requirements to obtain a Conrad waiver appear to be well-defined, prudent business immigration attorneys must reconcile the ethical issues that inherently arise in connection with the pursuit of a Conrad waiver in foreign jurisdictions. Some practitioners may regard the initial application to a State Health Department as a mere formality required to procure final U.S. Department of State approval. Yet, could such a "formality" have the potential to land immigration counsel in "hot water"?

In order to begin to answer this question, one must carefully scrutinize the Rules of Professional Conduct in each relevant state jurisdiction. Unfortunately, many of these state rules tend to provide amorphous answers such as "a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction." RPC 5.5. Such general statements hardly provide meaningful guidance. However, consulting State Disciplinary Opinions can also provide additional guidance.
In New Jersey, the Committee On The Unauthorized Practice Of Law has held:

a person not a member of the New Jersey State Bar, who is admitted to practice before a federal agency, may have an office in this State to perform those functions which are reasonably within the scope of practice authorized to any non-lawyer by any valid federal statute or administrative regulation. To this extent New Jersey's substantial interest in regulating the practice of law within its borders must yield under the federal supremacy clause, but not beyond. 133 N.J.L.J. 652 (1993).
Does this mean that New Jersey would not yield to a Conrad waiver filed by a foreign attorney? It appears that business immigration practitioners can either "roll the dice" with foreign Conrad waivers, or consider taking some kind of preventative measures. Such pre-emptive measures may include asking for permission from the relevant jurisdiction to appear pro hac vice, or partnering with local counsel who can submit the State materials. While such measures may seem rather conservative, they pale in comparison to the possible consequences of ethical laziness.

Recently, the State Bar Association urged the New Jersey Supreme Court to take a hard line on cross-border lawyering. However, the justices seemed skeptical and appeared willing to be at least open to the ideas of multi-jurisdictional practice, admission on motion and an end to the bona fide office requirement. Without further guidance, attorneys appear to be left to their own best judgment in handling this kind of ethical matter.

Of course, the issue of unauthorized practice is not just a problem for immigration attorneys. For example, the case of Birbrower, Montalbano, Condon & Frank v. The Superior Court of Santa Clara County, 17 Cal.4th 119 (1998), sheds great light on this issue in the area of private arbitration proceedings. In Birbrower, the Supreme Court of California found that a New York law firm violated the unauthorized practice of law statute by practicing law in California when it was representing a California client in a contract dispute and made preliminary arbitration agreements and attempted to negotiate a settlement. The Birbrower attorneys conducted this work in California and did not partner with local counsel. In ruling against the Birbrower firm, the court pointed out that the practice of law includes legal advice, legal instrument and contract preparation, whether or not these services are rendered in the course of a litigation. The court held that private arbitration and other alternative dispute resolution practices are important aspects of the judicial system and declined the invitation to create an arbitration exception that the Legislature did not enact.

The foregoing clearly illustrates the ethical issues that attorneys confront on a daily basis. Many times ethical issues can mirror some legal questions in that there does not appear to be any "black and white" solution. This article does not pretend to have any simple resolution to this continuing dilemma. Rather, as Supreme Court Justice Louis Brandeis wrote in 1933, "sunlight is the best disinfectant." Thus, the legal community would be wise to heed Justice Brandeis' words by demanding a greater focus on current ethical issues in the preparation of and submission of documents for Conrad waivers in states where those attorneys are not licensed to practice law.

About The Author

David Nachman, is a Principal at Grotta, Glassman & Hoffman and heads up the Firm's Business Immigration Practice. Mr. Nachman is a frequent speaker on panels and television. He is also an Adjunct Professor of Paralegal Studies at Bergen Community College and Fairleigh Dickinson University. In addition, he is a member of the Bergen County and New Jersey State Bar Associations; the Court of International Trade; the Third Circuit Court of Appeals; American Immigration Lawyers' Association; and the Northern New Jersey and Rockland County Chapters of the Society of Human Resource Management. He may be contacted at 973-994-7800 or via

The author thanks Andrew J. Zeltner, Esq. of Grotta, Glassman & Hoffman for his contribution to the writing of this article.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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