[Blogger’s Note: U.S. Citizenship and Immigration Services (USCIS) has invited public comment on its proposal to allow paralegals under attorney supervision to interact with the agency in limited ways, such as requesting or rescheduling client appointments and communicating by phone with its customer service representatives. The proposal was published as a notice of an intended change to Form G-28 — the form immigration attorneys must use to enter an appearance on behalf of a client in proceedings before USCIS or two other components of the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). I saw this as an opportunity to make other changes to the ways in which immigration lawyers can represent clients before these DHS agencies. Since I’ve blogged on the topic before (Powdered Wig Immigration with the Lawyer as Potted Plant and EB-5 Immigration Lawyers Wear Too Many Hats), I couldn’t resist offering the following (lightly edited) comment.]
September 25, 2023
Samantha L. Deshommes,
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746
Submitted via www.regulations.gov
Docket ID number USCIS–2008–0037
Re: Comment to Proposed Revision of a Currently Approved Collection: Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative – OMB Control Number 1615–0105
Dear Chief Deshommes,
I write to offer comments on the proposed revision of USCIS Form G-28. I write as a private citizen and not on behalf of any person or entity. By way of introduction, I have practiced U.S. immigration and nationality law since 1978, and am certified as a specialist in the field by the State Bar of California Board of Legal Specialization. I am admitted to practice law in the states of California, New York and Michigan, and in the District of Columbia. In addition, I have maintained a blog on America’s dysfunctional immigration system (www.nationofimmigrators.com). The purpose of the blog and my advocacy activities is “to offer constructive solutions that will enable the U.S. to maintain and enhance its economic prosperity, political freedoms and cultural and religious heritage as a Nation of Immigrants.”
USCIS is to be commended for the stated purpose of revising Form G-28, namely, to allow for limited interaction with the agency by a paralegal under the direction and control of a licensed attorney. This interaction would be for the limited purpose of rescheduling client appointments and communicating through the USCIS customer service channels on case status and urgent immigration benefits requests requiring an InfoPass.
This change is welcome because it will likely result in reduced legal fees for immigration petitioners and applicants given that the fees charged for paralegal support services are typically less than for lawyers, whether billed on a project-based or hourly basis. The change would also allow the supervising attorney to devote more time to professional services, e.g., preparation of cases that better demonstrate eligibility for the immigration benefit sought, appearances at USCIS interviews, and the imparting of advice and counsel to their clients who are expected to comply with the “significant complexities involved in enforcing federal immigration law.” Arizona v. US, 567 US 387 (2012).
Although I support the proposed change in principle, I offer the following additional observations, comments and recommendations:
- Substitute the more generic term “paraprofessional” in place of “paralegal.” The word “paralegal” is a statutorily defined term in some states, e.g., California. It is also the subject of credentialing by educational institutions that typically provide instruction in a wide array of legal disciplines within their course material, but whose course offerings often include scant instruction on the duties of a paraprofessional who supports the delivery of U.S. immigration legal services. Moreover, in modern legal practice there are often a wide array of personnel with position titles other than paralegal that nevertheless facilitate the delivery of U.S. immigration legal services acting under the direction of licensed attorneys. USCIS should therefore allow attorneys to designate paraprofessionals under supervision who may undertake limited interaction with the agency.
- Allow for multiple paraprofessionals to be designated by a supervising attorney on Form G-28. The proposed form would allow only a single paralegal to be designated. This creates unnecessary work for the attorneys and your agency because it does not account for the everyday fact of life that people are absent from work, whether on vacation, sick or maternity/paternity leaves, or other proper reasons for absence. USCIS should not create a system where the happenstance of a paraprofessional’s absence requires the preparation and submission of a new G-28 and the updating of the agency’s records to account for this substitution.
- Allow for multiple attorneys in the same firm to be designated on the same G-28 in Part 2, Item 3 as associated with the primary attorney named on the form. USCIS allows other attorneys to file the G-28 and declare an association with the attorney of record who previously filed the form, and to declare that the attorney’s appearance is for “a limited purpose [that] is at his or her request.” For the sake of efficiency, and in recognition that teams of lawyers at the same firm may work on the same client’s immigration matters, USCIS should allow a single G-28 submission to designate the primary attorney of record and multiple associated attorneys who may make a limited appearance in that client’s immigration matter.
- Delete the proposed inclusion of the attorney’s date of birth as a required data field on Form G-28. USCIS hasnever required an attorney to list one’s date of birth (DOB) on Form G-28, and the agency has offered no rationale whatsoever (let alone a convincing argument) for this radical new requirement. In the current era, where nation states and federal and state governments take great pains through legislation to protect the sanctity of an individual’s personally identifiable information (PII), this USCIS required-DOB data field serves as an invitation for any disgruntled or malevolently inclined client to “dox” (“publish the private personal information of (another person) or reveal the identity of (an online poster) without the consent of that individual”) the lawyer or engage in identity theft by the unauthorized use of a lawyer’s PII.
- Create a centralized online repository for USCIS to associate lawyers and paraprofessionals as “of record” in a particular immigration benefits request. USCIS has edited the instructions to Form G-28 to require notice of withdrawal of legal representation at the address listed on the latest receipt notice issued by the agency. This proposed change is wholly unworkable because USCIS often issues “transfer notices” to inform a petitioner or applicant that a particular benefits request has been relocated to a different USCIS office; yet these notices often do not timely arrive or they are contradicted by online USCIS.gov case notifications. Instead, USCIS should establish a “single source of truth,” i.e., a centralized USCIS repository for the online submission of G-28 forms and notices of attorney withdrawal of representation. This change would benefit both the agency and the stakeholder community. If adopted, there would no longer be doubt as to the identity of the attorney of record.
- Add the Department of State as a specific check-the-box option in Part 3 of Form G-28. USCIS presently allows the selection of three component agencies within the Department of Homeland Security in response to the statement “[t]his appearance relates to immigration matters before (select only one box) [bolding in original].” The three agencies are USCIS, CBP and ICE. By adding the Department of State (DOS) as a check-the-box alternative agency, Form G-28, as revised, would allow for appearances before the DOS consulates and embassies worldwide, the Kentucky Consular Center and the National Visa Center (NVC). See 9 FAM 601.7-3(c)(2)(a)(“Correspondence with Representatives of Record, Attorneys”). USCIS should also change Part 3, Item 4 to indicate “Receipt or Case Number (if any),” so that a DOS case number may be inserted, as for example, in situations where the data is requested and the attorney of record must be noted. See DOS Public Inquiry Form, accessible at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html (last visited on September 26, 2023).
- Modify Form G-28 to allow limited scope representation and limited appearances of counsel in selected immigration benefits requests. At present, USCIS’s regulations allow only a petitioner or an applicant to file a particular immigration benefits request on an agency-prescribed form. See instructions and associated regulations governing Forms I-539 and I-485 (allowing only applicants to file these forms; compare Forms I-129 and I-140 (which may only be filed a sponsoring employer, except in the case of an EB-1 personal of extraordinary ability or EB-2 national interest waiver). Often, however, USCIS adjudicators and forms instructions require the submission of information and documents in the possession or control of a third party, i.e., a person or entity with a clear economic interest in the outcome of an adjudication.
Examples include (1) an EB-5 regional center, new commercial enterprise, or job creating entity whose investment or job-creation data is sought in support of an I-526 petition or an I-829 petition filed by a noncitizen investor; (2) an employer that sponsored an approved immigrant visa petition on Form I-140 for an adjustment of status (AOS) applicant where the petitioner’s ability to pay the required wage must be established from the inception of the immigrant visa priority date through to the adjudication of the adjustment of status application; (3) an AOS applicant who must submit Form I-485 Supplement J to establish entitlement to job flexibility benefits in the transition to a new employer in the same or a similar occupational classification as that noted in the former sponsoring employer’s approved I-140 petition; and (4) an applicant for change or extension of nonimmigrant status submitted on Form I-529 by the dependent spouse or children of a noncitizen with work-visa status whose employer must assure that the family members are allowed to remain living in the U.S. with the noncitizen employee (who otherwise might be required to resign from the U.S. job and depart from America with the family).
USCIS should therefore modify Form G-28 to allow parties with a tangible economic interest in the outcome of an agency adjudication to submit information and documents under their possession or control to the agency as long as (A) the petitioner or applicant consents on Form G-28 to the submission of such third-party data or documents, and (B) authorizes USCIS to communicate with both the attorney of record and the attorney submitting notice of a limited scope representation or a limited appearance. With such consent, USCIS would then be authorized and required to communicate through legal counsel engaged in a limited scope representation or who has entered a limited appearance. This change would recognize and formalize USCIS’s existing allowance of limited scope representation (see discussion under Comment 3. above). It would also allow the non-filing third party with a clear economic interest in the outcome of an adjudication to maintain control over information in its possession or control. Further, it would provide an assurance to USCIS that the third party owning or controlling the information or documentation requested or required vouches for its accuracy and authenticity. Thus, the allowance of limited scope representation and limited appearances of counsel would serve to minimize instances of fraud and assure the public and the agency that only deserving noncitizens are granted the requested immigration benefits.
As stated, USCIS should be applauded for its proposed modification of Form G-28; but the agency would better fulfill its stated Mission and Core Values (accessible at:
https://www.uscis.gov/about-us/mission-and-core-values [last visited on September 26, 2023]) by upholding “America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve (emphasis added).”
Angelo A. Paparelli