Many thoughts rushed through my mind as I read the heartening headline to a press release issued January 19 by the American Immigration Council ("U.S. Citizenship and Immigration Services Takes Steps to Improve Noncitizens’ Access to Legal Counsel").
What did USCIS do to improve access to lawyers? Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record? Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present? Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?
Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind:
- The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome. Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . . for an act of kindness."
- USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections, "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job."
The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers. While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.
The prior policy, reflected in the Adjudicators Field Manual (AFM), provided:
Chapter 12 Attorneys and Other Representatives.
12.5 [Reserved] . . .
15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel:
- Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.
- The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .
- Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)
The interim policy guidance substituted the foregoing with this new instruction:
The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . . .
Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.
Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.
An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .
The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)
This express statement of the lawyer's role is inexplicably omitted from the new guidance. Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."
The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers. Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained. Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:
- when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;
- when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;
- when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).
The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable." I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.
The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:
All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.
Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.
As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, 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:
- beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);
- Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;
- the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and
- the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.
The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the 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 matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.
As a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients.
Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits.