The Seattle Times reports today in “Bill Tightens Legal Services for Immigrants”, that the Washington legislature is considering elimination of the “Immigration Assistant” designation for nonlawyers who provide immigration services. The bill would increase the penalties against those who wrongfully provide legal advice to immigrants and would make state law consistent with federal law on the subject.

As Chair of the American Immigration Lawyers Association, Washington Chapter (AILA), I testified in support of this bill before the Senate Judiciary Committee a few weeks ago along with a representative of the state’s Attorney General’s office and a representative from One America, an immigrant advocacy organization. The Attorney General’s Consumer Protection Division has brought actions under the state Consumer Protection Act against several immigration assistants and notarios charging them with practicing law without a license. Some nonlawyers gave bad advice to clients who ended up in deportation proceedings. Other immigration “consultants” have been prosecuted criminally in federal court for making false statements in applications. Typically, the state Attorney General enters into consent decrees with injunctions, fines and payment of attorneys fees, and restitution, “without admission of liability” contingent upon compliance of the conditions in the decree, such as public posting of services allowed and not allowed.

Unfortunately, by the time my attorney colleagues and I see these cases, there is a trail of tears left behind, where a client has been mislead into believing they paid a fee for an immigration benefit (legal status) only to learn they face deportation instead. Many people, including lawyers in other disciplines, think that immigration law is just a matter of “filling in some forms.” It’s quite the contrary, however. Immigration law is highly complex. Figuering out what category is appropriate, when to apply, risks in applying, and resolving a host of complex consequences come into play long before a form is ever filled out. Even then, the individual questions on a government form have legal consequences for current or future status. Moreover, forms are filled out under penalty of perjury, which has both immigration and criminal consequences to the applicant and other consequences to the preparer of the form if not the applicant. While the current Immigration Assistant bill limits the service provider to performing translations, placing a person’s responses to questions on a form, and obtaining supporting documents (e.g., birth certificates), it is very hard to provide just these services without also providing legal advice. The act of providing legal advice can include the mere selection of the appropriate form to complete, advice about how to answer a question, or advice about the qualifications for an immigration category. In immigration law, selecting the wrong form or immigration category, or whether to apply for something at all can have disastrous consequences for an immigrant. So, too, can failure to ask all the right questions to fully understand a person’s entire history.

In the Hispanic community, the term “notario” is often confused with the designation of attorney in many Latin American countries. A “notario” in the U.S., however, is not a licensed attorney in the U.S. unless the person meets State Bar rules. Moreover, the term “notario” can be confused with the U.S. term for “notary public,” which is yet another entirely different profession. The Immigration Assistant concept was originally introduced years ago to be a way for nonlawyers to help the community members who cannot afford a lawyer by offering lower priced, more limited services. However, in practice, some Immigration Assistants have charged the same or more than lawyers, and have practiced law.

The new bill would require any nonlawyer seeking to make an appearance or help someone file an immigration application with the federal government, to comply with existing federal laws for nonlawyers, including registering as a “qualifying organization,” applying to become an “accredited representative”, qualifying as a designated law student working under the supervision of an attorney or serving as an uncompensated “reputable individual” as defined by the U.S. Department of Justice, Executive Office of Immigration Review and Board of Immigration Appeals and the U.S. Department of Homeland Security. Unfortunately, for the existing immigration assistants, none of these federal government categories allow for profit making organizations or market rate compensation.

I mentioned in an earlier post that AILA recently launched a www.stopnotariofraud.org website, and that the American Bar Association and many other states, as well as USCIS have consumer protection initiatives to protect immigrants from fraudulent practices or the unauthorized practice of law. The Washington bill would make nonlawyer services consistent with the federal government’s rules on representation. However, it’s easy for a nonlawyer, or even an unscrupulous lawyer to get around the federal rules by not completing the “preparer” box on the government forms. While there are disciplinary rules for this at the federal level, as well as State Bar rules governing discipline of lawyers, there is no oversight, training or disciplinary system for Immigration Assistants and other nonlawyers. Therefore, the Washington bill would give the Attorney General more “teeth” and increase the penalties under the Consumer Protection Act where nonlawyers are concerned.