As a recent post by an immigration colleague notes, quite a brouhaha has erupted within the immigration bar and among purveyors of immigration case management software over a new outbreak of immigration singularity. The fuss this time involves an electronic form (the new G-28). Beginning October 30, a paper printout of a completed and signed "e-G-28" must be presented to U.S. Citizenship and Immigration Services (USCIS) every time a lawyer or an accredited nonprofit enters a "notice of entry of appearance" in order to represent a person or entity before the agency. The paper form G-28 has been in use for decades, and while the old G-28 has had its limitations, its passable functionality did not generate much heat.
Just like the angst produced by the State Department's online nonimmigrant visa application, the furor over the G-28 illustrates once again the failings of the Office of Management and Budget (OMB) in accepting at face value the assertions of federal agencies about the content and operations of the immigration laws. It also underscores the importance of submitting comments whenever a federal agency announces its intention to create or renew an immigration form and seeks OMB permission to do so under the Paperwork Reduction Act (PRA). Failure to comment on form changes, as the sorry G-28 episode reveals, risks much mischief and grief as the agency's deviant brand of rugged individualism has its way with public policy and makes mincemeat of the right to counsel and the rule of law.
As the G-28 PRA approval process began in June 2008, USCIS confessed to OMB that it had an "Oops. My bad!" moment: Recently, USCIS took the lead in revising Form G 28 and developing a new Form G 28I for use in cases filed in agency offices outside the United States. During the review process, USCIS discovered that Form G 28 had never been approved by the [OMB] under the PRA. As a result, USCIS sought and received emergency OMB approval of the G-28 form which had been in use since before 1983. (By the way, one ironic reason USCIS offered to justify emergency action on the G-28 is particularly galling in light of the thousands of unannounced site visits that its FDNS unit has conducted in the last several weeks: "If correspondence is not sent to an applicant’s representative, DHS attorneys may be in jeopardy of violating state bar ethics rules by treating applicants as if they were not represented by an attorney").
USCIS tried to say that the lapse in PRA compliance arose with the legacy agency, Immigration and Naturalization Service (INS), which had relied on a PRA exception known as the "Administrative Action" exemption. But the new USCIS in claiming to fess up said that this exemption, found at 5 CFR 1320.4, "no longer applies and both Form G 28 and Form G 28I require OMB approval." The public record, however, nowhere shows the OMB taking USCIS to task by asking when, if ever, the Administrative Action exemption applied. The Administrative Action exemption, at least as early as 1997 and continuing to today, applies to adversarial proceedings brought by an agency and clearly not to requests for administrative agency benefits of the type submitted to USCIS. The relevant provision applicable to USCIS allows reliance on the Administrative Action exemption only if agency action arises "during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities [emphasis added]."
This blatant violation of the "public protection" provisions of the PRA (see p. 13 of this Congressional Research Service report on the PRA) should have raised suspicions within OMB about the reliability of USCIS's explanation of the G-28 backstory. In essence the OMB allowed USCIS to blow off the comments criticizing the new G-28 by the American Immigration Lawyers Association (AILA)and two lawyers. In my view, the most trenchant of the comments came from AILA: "The proposed form does not adequately permit the entry of appearance for multiple parties."
While AILA correctly noted the absence of a box on the G-28 to confirm the attorney's representation of the "beneficiary" of an immigration petition and the legal interest of a new "receiving" employer in a green-card portability situation, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:
- the regional center in an EB-5 immigrant investor petition;
- the guardian of a child's interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant;
- the corporate employer in its foreign workers' adjustment of status cases or the workers' family members applications for extension or change of the family's nonimmigrant status;
- the estranged or divorced citizen or permanent resident spouse in a marriage-based petition to remove conditions on permanent residence; and
- the former "losing" employer in H-1B and green-card portability cases.
The G-28 -- indeed, the USCIS's regulations -- should be modified to recognize and allow representation of parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration issues. Homeland Security Secretary (and USCIS's departmental boss), Janet Napolitano, in one of her first interviews after her installation, told National Public Radio: "First of all, the rule of law applies on the border, and we want to make sure that that happens, No. 1." With all respect Secretary Napolitano, your mission is more than just border integrity. The rule of law must also be applied vigorously and faithfully to the subordinate agencies which you oversee, particularly to USCIS.