# 80 FR 59514: Recognition of Organizations and Accreditation of Non-Attorney Representatives

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-24024

## Section

- **Citation:** 80 FR 59514
- **Heading:** Recognition of Organizations and Accreditation of Non-Attorney Representatives
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 80 / 80 FR 59514

## Text

DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1001, 1003, 1103, 1212, and 1292 [EOIR Docket No. 176; A.G. Order No. 3564-2015] RIN 1125-AA72 Recognition of Organizations and Accreditation of Non-Attorney Representatives AGENCY:
Executive Office for Immigration Review, Department of Justice.

ACTION:
Proposed rule.

SUMMARY:
This rule proposes to amend the regulations governing the requirements and procedures for authorizing representatives of non-profit religious, charitable, social service, or similar organizations to represent persons in proceedings before the Executive Office for Immigration Review (EOIR) and the Department of Homeland Security (DHS). The rule also proposes amendments to the regulations concerning EOIR's disciplinary procedures.

DATES:
Electronic comments must be submitted and written comments must be postmarked on or before November 30, 2015. The electronic Federal Docket Management System at www.regulations.gov will accept electronic comments submitted prior to midnight Eastern Time at the end of that day.

ADDRESSES:
Please submit written comments to Jean King, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. You may view an electronic version and provide comments via the Internet by using the www.regulations.gov comment form for this regulation. See Section I of the SUPPLEMENTARY INFORMATION section for more information.
FOR FURTHER INFORMATION CONTACT:
Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule
ATION CONTACT:
Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change.
All submissions received should include the agency name and reference RIN 1125-AA72 or EOIR Docket No. 176 for this rulemaking. When submitting comments electronically, you must include RIN 1125-AA72 or EOIR Docket No. 176 in the subject box.
Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.
If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment
graph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.
Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. To inspect the agency's public docket file in person, you must make an appointment with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for agency counsel's contact information.
II. Executive Summary
The Executive Office for Immigration Review's (EOIR) Recognition and Accreditation (R&A) program addresses the critical and ongoing shortage of qualified legal representation for underserved populations in immigration cases before Federal administrative agencies. Through the R&A program, EOIR permits qualified non-attorneys to represent persons before the Department of Homeland Security (DHS), the immigration courts, and the Board of Immigration Appeals (BIA or Board). The specially qualified non-attorneys, known as accredited representatives, must be associated with and designated by a non-profit organization, known as a recognized organization. The non-profit organization must apply to EOIR for its recognition and for the accreditation of its qualified non-lawyers. Currently, there are more than 900 recognized organizations and more than 1,600 accredited representatives nationwide
ed non-attorneys, known as accredited representatives, must be associated with and designated by a non-profit organization, known as a recognized organization. The non-profit organization must apply to EOIR for its recognition and for the accreditation of its qualified non-lawyers. Currently, there are more than 900 recognized organizations and more than 1,600 accredited representatives nationwide. 1 The majority of accredited representatives are accredited to appear solely before DHS (known as “partially accredited representatives”). Less than 20 percent of the representatives are accredited to appear before DHS, the immigration courts, and the Board (known as “fully accredited representatives”).
1 The numbers of recognized organizations and accredited representatives are current as of April 27, 2015. Visit the rosters of recognized organizations and accredited representatives for updated data at: http://www.justice.gov/eoir/recognition-accreditation-roster-reports (last visited Sept. 15, 2015).
The purpose of this proposed rule is to promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations. The proposed rule seeks to accomplish this goal by amending the requirements for recognition and accreditation to increase the availability of qualified representation for primarily low-income and indigent persons while protecting the public from fraud and abuse by unscrupulous organizations and individuals. The legal, financial, and emotional harm and exploitation perpetrated by notarios 2 and other 3 Since June 2011, the Department of Justice (Department) has collaborated with DHS and the Federal Trade Commission in a national initiative to combat the unauthorized practice of immigration law
igent persons while protecting the public from fraud and abuse by unscrupulous organizations and individuals. The legal, financial, and emotional harm and exploitation perpetrated by notarios 2 and other 3 Since June 2011, the Department of Justice (Department) has collaborated with DHS and the Federal Trade Commission in a national initiative to combat the unauthorized practice of immigration law. 4 Numerous private and government entities have addressed notario fraud and the unauthorized practice of law through educational Web sites, outreach to the public, legislation, and Federal and state prosecutions. 5 The proposed rule will assist these efforts by seeking to increase the number of recognized organizations and the availability of authorized and qualified immigration practitioners for underserved persons, which, in turn, should reduce the likelihood that such persons become the victims of immigration scams involving the unauthorized practice of law.
2 “In many Latin American countries, the term `notario publico' (for `notary public') stands for something very different than what it means in the United States. In many Spanish-speaking nations, `notarios' are powerful attorneys with special legal credentials. In the [United States], however, notary publics are people appointed by state governments to witness the signing of important documents and administer oaths. `Notarios publico,' are not authorized to provide [persons before EOIR and DHS] with any legal services related to immigration.” United States Citizenship and Immigration Services, Common Scams, http:// (last updated Nov. 21, 2014) (emphasis added).
3 See, e.g., Olivia Quinto, Note, “ In a Desert Selling Water”: Expanding the U-Visa to Victims of Notario Fraud and Other Unauthorized Practices of Law, 14 Rutgers Race & L. Rev. 203 (2013); Mary Dolores Guerra, Lost in Translation: Notario Fraud—Immigration Fraud, 26 J. C.R. & Econ. Dev
s Citizenship and Immigration Services, Common Scams, http:// (last updated Nov. 21, 2014) (emphasis added).
3 See, e.g., Olivia Quinto, Note, “ In a Desert Selling Water”: Expanding the U-Visa to Victims of Notario Fraud and Other Unauthorized Practices of Law, 14 Rutgers Race & L. Rev. 203 (2013); Mary Dolores Guerra, Lost in Translation: Notario Fraud—Immigration Fraud, 26 J. C.R. & Econ. Dev. 23 (2011); Careen Shannon, Regulating Immigration Legal Service Providers: Inadequate Representation and Notario Fraud, 78 Fordham L. Rev. 577 (2009); Anne E. Langford, Note, What's in a Name?: Notarios in the United States and the Exploitation of a Vulnerable Latino Immigrant Population, 7 Harv. Latino L. Rev. 115 (2004).
4 See Press Release, Department of Justice, Federal Agencies Announce National Initiative to Combat Immigration Services Scams (June 9, 2011), available at http://www.justice.gov/opa/pr/federal-agencies-announce-national-initiative-combat-immigration-services-scams (last visited Sept. 15, 2015).
5 For example, the American Immigration Lawyers Association established a Web site to educate the public and to assist victims of notario fraud. See Stop Notario Fraud, http://www.stopnotariofraud.org/. Several states have enacted legislation to combat the unauthorized practice of law. See Travis B. Olsen, Combatting “Notario Fraud” Locally, 22 Berkeley LA Raza L.J. 383 (2012); Milagros Cisneros, H.B. 2659: Notorious Notaries—How Arizona is Curbing Notario Fraud in the Immigrant Community, 32 Ariz. St. L.J. 287 (2000). For examples of Federal and state prosecutions for fraud or the unauthorized practice of law, see Daniel M. Kowalski, Oregon Immigration Scammers Exposed, LexisNexis Legal Newsroom: Immigration Law (Jan. 7, 2014, 10:09 a.m.), http://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2014/01/07/oregon-immigration-scammers-exposed.aspx; Press Release, Department of Justice, U.S. Attorney's Office, D. Md., Ocean City Man Sentenced for Immigration Fraud (Feb
ed practice of law, see Daniel M. Kowalski, Oregon Immigration Scammers Exposed, LexisNexis Legal Newsroom: Immigration Law (Jan. 7, 2014, 10:09 a.m.), http://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2014/01/07/oregon-immigration-scammers-exposed.aspx; Press Release, Department of Justice, U.S. Attorney's Office, D. Md., Ocean City Man Sentenced for Immigration Fraud (Feb. 26, 2014), available at http://www.justice.gov/usao/md/news/2014/OceanCityManSentencedForImmigrationFraud.html (last visited Sept. 15, 2015); Press Release, Department of Justice, U.S. Attorney's Office, D.N.J., Former Atlantic City, N.J., Paralegal Charged with Mail Fraud Conspiracy (Feb. 26, 2014), available at http://www.justice.gov/usao/nj/Press/files/James,%20Maria%20Complaint%20News%20Release.html (last visited Sept. 15, 2015); Press Release, Department of Justice, U.S. Attorney's office, S.D.N.Y., Liying Lin Found Guilty of Immigration Fraud Offenses Following One Week Jury Trial in Manhattan Federal Court (Feb. 26, 2014), available at http://www.justice.gov/usao/nys/pressreleases/February14/LiyingLinVerdict.php?print= (last visited Sept. 15, 2015).
The proposed rule seeks to accomplish these objectives by clarifying the process for applying for recognition and accreditation and facilitating the ability of organizations and representatives to serve persons before EOIR and DHS. At the same time, the proposed rule balances the potential increased availability of recognized organizations and accredited representatives with greater oversight and accountability for recognized organizations and accredited representatives
rocess for applying for recognition and accreditation and facilitating the ability of organizations and representatives to serve persons before EOIR and DHS. At the same time, the proposed rule balances the potential increased availability of recognized organizations and accredited representatives with greater oversight and accountability for recognized organizations and accredited representatives.
The rule proposes to transfer administration of the R&A program within EOIR from the Board to the Office of Legal Access Programs (OLAP); amend the qualifications for recognition of organizations and accreditation of their representatives; institute administrative procedures to enhance the management of the R&A roster; and update the disciplinary process to make recognized organizations, in addition to accredited representatives, attorneys, and other practitioners, subject to sanctions for conduct that contravenes the public interest.
III. Background
With the exception of a technical amendment in 1997, the R&A regulations have remained unchanged since 1984. 6 In the interim, the agencies responsible for the execution of the immigration laws have been restructured. Notably, DHS was established in 2002 and the functions of the former Immigration and Naturalization Service (INS) were transferred to DHS in 2003. 7 Moreover, in April 2000, EOIR established the EOIR Pro Bono Program, now known as OLAP, under the Office of the EOIR Director. OLAP's mission is to improve access to legal information and counseling and increase rates of representation for persons appearing before the immigration courts and the Board.
6 Compare 8 CFR 292.2 (1985), with 8 CFR 1292.2 (2014).
7 See Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135; 6 U.S.C. 101 et seq. Congress divided the functions of the INS among three new components: U.S
P's mission is to improve access to legal information and counseling and increase rates of representation for persons appearing before the immigration courts and the Board.
6 Compare 8 CFR 292.2 (1985), with 8 CFR 1292.2 (2014).
7 See Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135; 6 U.S.C. 101 et seq. Congress divided the functions of the INS among three new components: U.S. Citizenship and Immigration Services (USCIS), which generally is responsible for the administration of benefit applications; Immigration and Customs Enforcement (ICE), which generally is responsible for the enforcement of the immigration laws; and U.S. Customs and Border Protection, which is responsible for, inter alia, enforcement of immigration laws at and between the ports of entry.
EOIR has administered the R&A program for the past 30 years in the face of these structural changes in the government as well as the changing realities of the immigration system and of the ability of non-profit organizations to meet the increased need for legal representation. During this time, EOIR, in consultation with DHS, has comprehensively examined the R&A regulations in light of various issues that have arisen and solicited input from the public on how to address the developments of the past 30 years in amended regulations. 8 Most recently, in February 2012, EOIR invited public comment on possible amendments to the R&A Regulations, and in March and April of that year it held public meetings with interested stakeholders. 9 The proposed rule is the product of these internal and external deliberations.
8 See 60 FR 57,200 (Nov. 14, 1995) (requesting public comment regarding possible changes in the qualifications required of an organization to be recognized by EOIR to represent persons before INS, the Board, and the immigration courts.).
9 See 77 FR 9,590 (Feb. 17, 2012) (notice of two public meetings and request for comments); EOIR, Recognition and Accreditation Program, EOIR Public Meetings (Mar. 14, 2012 & Mar
(Nov. 14, 1995) (requesting public comment regarding possible changes in the qualifications required of an organization to be recognized by EOIR to represent persons before INS, the Board, and the immigration courts.).
9 See 77 FR 9,590 (Feb. 17, 2012) (notice of two public meetings and request for comments); EOIR, Recognition and Accreditation Program, EOIR Public Meetings (Mar. 14, 2012 & Mar. 21, 2012) (“R&A Public Meeting Minutes”), http://www.justice.gov/eoir/statspub/RAPublicMeetingMinutesSpring2012.pdf (last visited Sept. 15, 2015).
IV. Description of the Provisions of the Proposed Rule
A. Transfer of R&A Program from the Board to OLAP
Under the current R&A regulations, the Board approves or disapproves requests for recognition and accreditation, determines whether to withdraw recognition, and maintains a roster of recognized organizations and their accredited representatives. 10 Given OLAP's mission to facilitate access to legal information and counseling and to increase the rates of representation for persons before EOIR and DHS, the Department has determined that OLAP is best suited to administer the R&A program and therefore proposes in this rule to transfer the program's administration from the Board to OLAP. 11
10 The Board also has the authority, after the EOIR or DHS disciplinary counsel initiates disciplinary proceedings, to impose disciplinary sanctions—such as disbarment, suspension, or a censure—on accredited representatives who engage in criminal, unethical, or unprofessional conduct before the immigration courts, the Board, or DHS. Under the proposed rule, the Board maintains its authority to impose disciplinary sanctions on accredited representatives while also having new authority to impose disciplinary sanctions on recognized organizations
such as disbarment, suspension, or a censure—on accredited representatives who engage in criminal, unethical, or unprofessional conduct before the immigration courts, the Board, or DHS. Under the proposed rule, the Board maintains its authority to impose disciplinary sanctions on accredited representatives while also having new authority to impose disciplinary sanctions on recognized organizations.
11 As of the effective date of this rule, the Board will no longer have authority under 8 CFR 1003.1(d)(5) to determine whether to recognize organizations and accredit representatives to
For over a decade, OLAP has been responsible for overseeing legal orientation programs and for facilitating access to pro bono representation and self-help educational materials for individuals in immigration proceedings. OLAP is best suited to administer the R&A program because it is dedicated to fostering access to legal representation in immigration cases. OLAP executes this mission primarily through programs and initiatives that facilitate access to information (including self-help materials) and that create incentives for attorneys and law students to handle pro bono immigration cases. OLAP is responsible for administering the Legal Orientation Program, the Legal Orientation Program for Custodians of Unaccompanied Alien Children, the BIA Pro Bono Project, the Model Hearing Program, and the newly created National Qualified Representative Program. 12 With the transfer of the R&A program to OLAP, OLAP will now manage the entire spectrum of EOIR programs designed to facilitate access to legal representation in immigration proceedings.
12 In April 2013, the Departments of Justice and Homeland Security announced a nationwide policy to provide enhanced safeguards and procedural protections to unrepresented immigration detainees with indicia of mental incompetence
of the R&A program to OLAP, OLAP will now manage the entire spectrum of EOIR programs designed to facilitate access to legal representation in immigration proceedings.
12 In April 2013, the Departments of Justice and Homeland Security announced a nationwide policy to provide enhanced safeguards and procedural protections to unrepresented immigration detainees with indicia of mental incompetence. See Notice, Department of Justice and Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious Mental Disorders or Conditions (Apr. 22, 2013), available at http://www.justice.gov/eoir/pages/attachments/2015/04/21/safeguards-unrepresented-immigration-detainees.pdf (last visited Sept. 15, 2015). These safeguards include the provision of a Qualified Representative to any unrepresented detainee found mentally incompetent to represent him- or herself in immigration proceedings.
OLAP currently is not designated as an EOIR component in the regulations. The proposed rule would formalize OLAP's structure and function as a component of EOIR and transfer the administration of the R&A program from the Board to OLAP. Under the proposed rule, OLAP would have the authority to approve or disapprove requests for recognition and accreditation, to maintain a roster of recognized organizations and their accredited representatives, and to administratively terminate an organization or a representative.
B. Recognition and Accreditation
As outlined below, the proposed rule would make significant changes to the process and qualifications for requesting and renewing recognition and accreditation, with the express purpose of increasing capacity while maintaining adequate standards for recognition and accreditation.
1
atives, and to administratively terminate an organization or a representative.
B. Recognition and Accreditation
As outlined below, the proposed rule would make significant changes to the process and qualifications for requesting and renewing recognition and accreditation, with the express purpose of increasing capacity while maintaining adequate standards for recognition and accreditation.
1. Recognition Qualifications
To be recognized under the current R&A regulations, an organization must: be a non-profit religious, charitable, social service, or similar organization established in the United States; make only nominal charges and assess no excessive membership dues for its services; and have adequate knowledge, information, and experience at its disposal. The proposed rule retains the non-profit requirement with the additional requirement to demonstrate Federal tax-exempt status. The proposed rule also retains the adequate knowledge, information, and experience requirement. The proposed rule replaces the nominal fee requirement with requirements that shift the singular focus from fees to the organization's other sources of revenue and whether the organization is primarily serving low-income and indigent clients. The proposed rule also requires, in contrast with the current regulations, that an organization must have an authorized officer to act on its behalf and at least one accredited representative to be recognized and maintain recognition.
a. Accredited Representative Required
The proposed rule would require that an organization have at least one accredited representative to be recognized, to maintain recognition, and to have its recognition renewed. Currently, the R&A regulations do not include such a requirement and, as a result, some organizations that have only attorneys (and no accredited representatives) on staff have been recognized
ited Representative Required
The proposed rule would require that an organization have at least one accredited representative to be recognized, to maintain recognition, and to have its recognition renewed. Currently, the R&A regulations do not include such a requirement and, as a result, some organizations that have only attorneys (and no accredited representatives) on staff have been recognized. An organization with only attorneys on staff does not need to seek recognition because attorneys already are authorized to appear before DHS, the immigration courts, and the Board as long as they are eligible to practice law, are members in good standing of a bar, and are not under any order restricting or prohibiting their practice of law. 13 However, an organization with both attorneys and non-attorneys (or only non-attorneys) on staff must qualify for recognition in order for its non-attorney members to be accredited to represent persons before DHS, the immigration courts, or the Board. This proposed requirement accords with the main purpose of recognition, which is to authorize organizations to provide affordable, qualified immigration legal services to underserved immigrant populations through non-attorneys (as opposed to attorneys).
13 See 8 CFR 1001.1(f); see also id. §§ 292.1(a)(1), 1292.1(a)(1). Non-profit organizations with only attorneys on staff who provide free or pro bono legal services may apply to be on the List of Pro Bono Legal Service Providers. See 8 CFR 1003.61 et seq.
b. Non-Profit With Federal Tax-Exempt Status
The current regulations require organizations to demonstrate non-profit status for recognition. The proposed rule would require an organization to establish both that it is a non-profit religious, charitable, social service, or similar organization established in the United States and that it is federally tax-exempt. 14
14 Non-profit status and Federal tax-exempt status are different concepts
The current regulations require organizations to demonstrate non-profit status for recognition. The proposed rule would require an organization to establish both that it is a non-profit religious, charitable, social service, or similar organization established in the United States and that it is federally tax-exempt. 14
14 Non-profit status and Federal tax-exempt status are different concepts. Non-profit status is a state law concept that allows organizations to receive benefits at the state level like tax exemptions. Organizations with non-profit status are not automatically granted Federal tax-exempt status, although most Federal tax-exempt organizations are non-profit organizations. See Internal Revenue Service, Applying for Exemption—Difference Between Non-Profit and Tax-Exempt Status, http://www.irs.gov/Charities-&-Non-Profits/Applying-for-Exemption-Difference-Between-Nonprofit-and-Tax-Exempt-Status (last visited Sept. 15, 2015).
The proposed requirement to demonstrate Federal tax-exempt status provides a means of confirming that organizations requesting recognition are legitimate non-profit organizations. 15 Specifically, Federal tax-exempt status ensures that an organization seeking recognition has been or will be independently evaluated by the Internal Revenue Service (IRS) to confirm that it is not engaging in for-profit activities, and subjects the organization to IRS oversight if the organization does not comply with the requirements for its tax-exempt status. An organization may satisfy this requirement by submitting an IRS tax-exemption determination letter approving tax-exempt status under 26 U.S.C. 501(c)(3) 16 or some other section of the Federal tax code, or by submitting another document that demonstrates the organization is tax- 17 If an organization has not yet received an IRS tax-exemption determination letter at the time it applies for recognition, it may satisfy this requirement by submitting proof that it has applied for Federal tax-exempt status
ng tax-exempt status under 26 U.S.C. 501(c)(3) 16 or some other section of the Federal tax code, or by submitting another document that demonstrates the organization is tax- 17 If an organization has not yet received an IRS tax-exemption determination letter at the time it applies for recognition, it may satisfy this requirement by submitting proof that it has applied for Federal tax-exempt status. This alternative method of demonstrating tax-exempt status will permit newly formed organizations to obtain conditional recognition and start providing services while their applications for tax exemptions are pending. However, an organization that obtains recognition in this manner should obtain a favorable tax-exemption determination letter by the time it seeks renewal of recognition. An organization's failure to do so may adversely affect its eligibility for renewal.
15 An organization may still be eligible for recognition if it can show that Federal tax-exempt status is not required separately for the organization. For example, an organization may show that it is part of a group exemption as a subordinate of a larger international or national tax-exempt organization.
16 See 26 U.S.C. 501(c)(3) (stating that an organization is tax-exempt if it is “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . ., or for the prevention of cruelty to children or animals, no part of [its] net earnings . . . inures to the benefit of any private shareholder or individual, no substantial part of [its] activities . . . is carrying on propaganda, or otherwise attempting, to influence legislation,” and it “does not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office”).
17 Organizations currently may submit, based on agency guidance, a tax determination letter to demonstrate eligibility for recognition
ntial part of [its] activities . . . is carrying on propaganda, or otherwise attempting, to influence legislation,” and it “does not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office”).
17 Organizations currently may submit, based on agency guidance, a tax determination letter to demonstrate eligibility for recognition. EOIR, Recognition and Accreditation (R&A) Program, http://www.justice.gov/sites/default/files/pages/attachments//2015/05/13/randafaqsprintableversion.pdf (last visited Sept. 15, 2015).
While classification as a 501(c)(3) federally tax-exempt organization may be sufficient to show that an organization is a non-profit religious, charitable, social service, or similar organization for tax purposes, the proposed rule neither presumes that 501(c)(3) organizations have non-profit religious, charitable, social service, or similar purposes for recognition purposes, nor limits recognition to organizations that are tax-exempt under section 501(c)(3). Organizations that apply for or obtain Federal tax exemptions under section 501(c)(3) or other sections of the Federal tax code may only receive recognition if they also show that they are non-profit religious, charitable, social service, or similar organizations providing free or reduced-cost immigration legal services to primarily low-income and indigent persons. 18 Consistent with current agency guidance, an organization may do so with its charter, by-laws, articles of incorporation, or similar documents that show its religious charitable, social service, or similar mission
y are non-profit religious, charitable, social service, or similar organizations providing free or reduced-cost immigration legal services to primarily low-income and indigent persons. 18 Consistent with current agency guidance, an organization may do so with its charter, by-laws, articles of incorporation, or similar documents that show its religious charitable, social service, or similar mission. 19
18 The legitimacy of a non-profit organization would be particularly scrutinized in circumstances where, for example: (1) A commercial enterprise or for-profit business, such as a travel, insurance, real estate, or tax business, is operated at the same location as the non-profit organization seeking recognition; (2) the non-profit organization receives funding from a for-profit business operated at the same location as the non-profit; or (3) the proposed representative or other employees of the non-profit organization also work for, or are closely associated with, a for-profit business. See Matter of St. Francis Cabrini Immigration Law Center, 26 I&N Dec. 445, 447 (BIA 2014).
19 EOIR, Recognition and Accreditation (R&A) Program, http://www.justice.gov/sites/default/files/pages/attachments//2015/05/13/randafaqsprintableversion.pdf (last visited Sept. 15, 2015).
c. Elimination of Nominal Charges Requirement
The proposed rule would eliminate the “nominal charges” requirement contained in the current regulations. 20 The purpose of that requirement had been to ensure that organizations are in fact charitable or similar social services organizations; they are serving low-income or indigent clients; and they are not representing clients for profit. 21 However, the nominal charges requirement has been repeatedly criticized over the years as a barrier to affordable, quality legal services to vulnerable populations
The purpose of that requirement had been to ensure that organizations are in fact charitable or similar social services organizations; they are serving low-income or indigent clients; and they are not representing clients for profit. 21 However, the nominal charges requirement has been repeatedly criticized over the years as a barrier to affordable, quality legal services to vulnerable populations. 22 Commenters have asserted that some well-qualified organizations do not apply for recognition because of the restriction, and that others are unable to meet the demand for their services due to the financial constraints it imposes. They have stated that the assessment of more than nominal fees in some cases is necessary because charitable grants and private funding can be unreliable and because, for example, organizations in rural versus urban areas have distinct needs and expenses that create a need for more than nominal fees. Furthermore, they claim that different cases may require higher fees because of their complexity or because they include the provision of both legal and social services. 23
20 See 8 CFR 1292.2(a)(1) (requiring that an organization demonstrate that it “makes only nominal charges and assesses no excessive membership dues for persons given assistance”). In applying the standard, the Board has not defined “nominal charges” in terms of specific dollar amounts but stated that it refers to “ ‘something existing in name only as distinguished from something real or actual.’ ” Matter of Ayuda, 26 I&N Dec. 449, 450 (BIA 2014) (quoting Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386, 387 (BIA 1986)).
21 60 FR 57,200, 57,200 (Nov. 14, 1995); see Matter of Ayuda, 26 I&N Dec. at 450 (“The fees must be consistent with the purpose and spirit of the recognition and accreditation program, which is to provide competent immigration services to low-income and indigent persons.”).
22 60 FR at 57,200; R&A Program Comments at 2, 58 (Mar. 14, 2012 & Mar
l Academy, Inc., 19 I&N Dec. 386, 387 (BIA 1986)).
21 60 FR 57,200, 57,200 (Nov. 14, 1995); see Matter of Ayuda, 26 I&N Dec. at 450 (“The fees must be consistent with the purpose and spirit of the recognition and accreditation program, which is to provide competent immigration services to low-income and indigent persons.”).
22 60 FR at 57,200; R&A Program Comments at 2, 58 (Mar. 14, 2012 & Mar. 21, 2012) (on file with EOIR; forthcoming on www.regulations.gov with proposed rule); American Immigration Lawyers Association, Comments on Public Meetings Related to the Regulations Governing the EOIR Recognition and Accreditation Program, 8 CFR 1292, at 3-4 (Apr. 4, 2012) (“AILA Comments”), available at http://www.aila.org/File/DownloadEmbeddedFile/37635 (last visited Sept. 15, 2015).
23 60 FR at 57,200; R&A Public Meeting Minutes at 2 ; R&A Program Comments at 3, 8-9, 34-35, 37, 47, 53, 58, 66-67, 77-78; AILA Comments at 3.
At the same time, a commenter expressed concern about allowing organizations that charge more than nominal fees to obtain recognition. 24 Higher fees may place organizations in competition with members of the bar for clients that can afford legal services, which would contravene the R&A program's goal to serve primarily low-income and indigent clients. 25 Higher fees could also lead unscrupulous organizations and individuals to seek recognition and accreditation so that they could profit from exploiting clients.
24 AILA Comments at 3; R&A Program Comments at 58.
25 AILA Comments at 3-4; R&A Program Comments at 58-59.
Recognizing the concerns with the nominal fees requirement, and to increase the number and sustainability of recognized organizations able to provide immigration legal services to indigent and low-income persons before EOIR and DHS, the Board recently updated and clarified its interpretation of the “nominal charges” requirement in Matter of Ayuda, 26 I&N Dec. 449 (BIA 2014)
am Comments at 58-59.
Recognizing the concerns with the nominal fees requirement, and to increase the number and sustainability of recognized organizations able to provide immigration legal services to indigent and low-income persons before EOIR and DHS, the Board recently updated and clarified its interpretation of the “nominal charges” requirement in Matter of Ayuda, 26 I&N Dec. 449 (BIA 2014). The Board stated that the “nominal charges” requirement requires an individualized assessment of the organization, including its geographic location, the services provided, and the manner of delivery of services, to determine whether its fee structure comports with the goal of providing low-cost legal services, rather than simply serving the interests of the organization. 26 The proposed rule adopts a similar approach to assessing each organization, but proposes to shift the focus away from an organization's fee levels to the organization's funding sources and budget while still requiring that organizations serve the neediest of persons. Under the proposed rule, there is no longer a “nominal charges” requirement and organizations have greater flexibility in assessing fees.
26 Matter of Ayuda, 26 I&N Dec. at 451, 452-53.
d. Substantial Amount of Budget Is Not Derived From Client Charges
The proposed rule would generally require an organization to demonstrate that a “substantial amount of the organization's immigration legal services budget is derived from sources other than funds provided by or on behalf of the immigration clients themselves (such as legal fees, donations, or membership dues).” This proposed requirement reflects the fact that a legitimate non-profit organization providing immigration legal services to low-income and indigent clients generally supports its operations through various sources of outside funding and not solely or entirely 27
27 See id
funds provided by or on behalf of the immigration clients themselves (such as legal fees, donations, or membership dues).” This proposed requirement reflects the fact that a legitimate non-profit organization providing immigration legal services to low-income and indigent clients generally supports its operations through various sources of outside funding and not solely or entirely 27
27 See id. at 453 (approving application for recognition with the acknowledgement that the “organization's budget and funding demonstrate that it is substantially supported by grants and is not dependent primarily on client fees for its operations”).
To satisfy the “substantial amount” requirement under the proposed rule, an organization must submit its annual budget for providing immigration legal services for the current year and, if available, its annual budget for providing immigration legal services for the prior year. If both such budgets are unavailable, the organization must submit its projected annual budget for providing immigration legal services for the upcoming year. The organization's budget, whether actual or projected, should identify its revenue and expenses attributable to immigration legal services. The revenue should include the amount of fees, membership dues, and donations 28 received or expected from the organization's immigration clients for immigration legal services and the sources and amounts of grants and monetary and in-kind donations, such as documented donations of office space, equipment, or volunteer services. The organization should also identify its investment and fundraising income, real estate, and other assets.
28 Not all donations an organization receives from immigration clients are donations for immigration legal services. However, to the extent that an organization conditions the provision of legal services on donations suggested or otherwise encouraged by the organization, the donations received are for immigration legal services
ts investment and fundraising income, real estate, and other assets.
28 Not all donations an organization receives from immigration clients are donations for immigration legal services. However, to the extent that an organization conditions the provision of legal services on donations suggested or otherwise encouraged by the organization, the donations received are for immigration legal services.
The proposed rule would require OLAP to review the organization's funding sources. In doing so, the rule does not identify a specific formula or percentage to be used to measure a “substantial” amount. Rather, under the proposed rule, OLAP would make a determination looking at the totality of the organization's circumstances. For example, an organization with an annual immigration legal services budget funded by either no immigration client fees, membership dues, or donations, or with a quarter (or less) of its annual immigration legal services budget provided by such funding would likely meet the “substantial amount” requirement. Similarly, an organization may demonstrate that it has no need for client fees, membership dues, or donations from its immigration clients to support its organization because, for example, it is a religious organization that receives in-kind donations of office space, equipment, and supplies and relies on volunteers or members of a religious congregation who provide legal services at little cost to the organization.
On the other hand, the greater the amount of funding an organization derives from fees, membership dues, or donations provided by or on behalf of immigration clients, the more likely the organization will not be able to meet the “substantial amount” requirement. For instance, an organization whose legal services budget is based on unreliable funding sources, such as projected revenue from small special events ( e.g., bake sales or garage sales, as opposed to an annual gala) would likely be impermissibly dependent on immigration client fees
immigration clients, the more likely the organization will not be able to meet the “substantial amount” requirement. For instance, an organization whose legal services budget is based on unreliable funding sources, such as projected revenue from small special events ( e.g., bake sales or garage sales, as opposed to an annual gala) would likely be impermissibly dependent on immigration client fees. Similarly, an organization that has high salaries, rent, and other expenses, is more likely to be overly dependent on immigration client fees, membership dues, or donations and would be unlikely to satisfy the substantial amount requirement.
In limited circumstances, the proposed rule would authorize OLAP to grant a waiver of the “substantial amount” requirement where an organization persuasively demonstrates that the waiver is in the public interest. “Public interest” factors to be considered include: The geographic location of the organization; the manner in which legal services are to be delivered; the types of immigration legal services offered; and the population to be served. The history and reputation of the organization in its community and the qualifications of its staff may also be considered in the assessment. Organizations likely to be considered for the waiver may be, for example, operating in an underserved area, such as a remote detention facility, or providing assistance to vulnerable or economically disadvantaged populations, such as mentally incompetent persons, unaccompanied minors, or adjustment of status self-petitioners under the Violence Against Women Act (VAWA).
e. Serving Primarily Low-Income and Indigent Persons
In order to avoid recognizing organizations with for-profit motives and to advance the requirement that organizations have a religious, charitable, social service, or similar purpose, the proposed rule would require an organization to establish that it provides immigration legal services primarily to low-income and indigent clients
t (VAWA).
e. Serving Primarily Low-Income and Indigent Persons
In order to avoid recognizing organizations with for-profit motives and to advance the requirement that organizations have a religious, charitable, social service, or similar purpose, the proposed rule would require an organization to establish that it provides immigration legal services primarily to low-income and indigent clients. Neither the term “primarily” nor the term “low-income” is defined in the proposed rule. Most commenters following the March 14, 2012, stakeholder meeting eschewed a proposed rule defining “low-income.” They stated that organizations need flexibility in deciding which clients they serve because organizations are often unable to verify the income of clients. 29 They also expressed a concern that an income restriction may limit the client populations served and prevent recognized organizations from serving a set of individuals in need of legal services but unable to afford an attorney. 30 As a result, the proposed rule does not define low-income or indigent in terms of a specific amount of income or limit eligibility for recognition to organizations that exclusively serve low-income and indigent persons.
29 See, e.g., AILA Comments at 4; R&A Program Comments at 3, 9, 59, 68, 72-73, 79.
30 R&A Program Comments at 9-10, 28-29, 36, 72, 79-80.
Organizations, however, have the burden of demonstrating that they provide immigration legal services “primarily” to “low-income and indigent” persons. While income and expenses for clients will vary nationwide and each organization should have flexibility to determine which clients are “low-income and indigent” and eligible for services, each organization nevertheless should have guidelines for determining whether clients are “low-income and indigent” so that OLAP may assess whether the organization's guidelines reasonably ensure that its services will be primarily directed toward low-income and indigent persons
organization should have flexibility to determine which clients are “low-income and indigent” and eligible for services, each organization nevertheless should have guidelines for determining whether clients are “low-income and indigent” so that OLAP may assess whether the organization's guidelines reasonably ensure that its services will be primarily directed toward low-income and indigent persons. For example, an organization may use a particular percentage from the annual Federal poverty guidelines issued by the Department of Health and Human Services as a benchmark to determine whether a person meets the threshold for free or reduced cost legal services. 31 An organization may also use other factors to assess whether those who receive its services are “low-income and indigent,” particularly when its clients do not have pay stubs, bank accounts, or other verifiable statements of income.
31 See 80 FR. 3,236, 3,237 (Jan. 22, 2015) (Department of Health and Human Services 2015 poverty guidelines).
Requiring recognized organizations to serve primarily low-income and indigent clients necessarily affects the magnitude of legal fees, membership dues, or donations, if any, that an organization may charge or request. Charging or requesting excessive fees, membership dues, or donations would not be consistent with the aim of serving primarily low-income and indigent clients. 32 An organization that charges
32 Cf. 8 CFR 1292.2(a)(1) (requiring that an organization demonstrate that it “makes only nominal charges and assesses no excessive membership dues for persons given assistance”).
At the same time, the proposed rule does not prohibit a recognized organization from serving a limited number of clients regardless of income. 33 In serving these clients, however, a recognized organization would not be permitted to charge or request legal fees, membership dues, or donations that are greater than those that it charges or requests from low-income and indigent clients
ssistance”).
At the same time, the proposed rule does not prohibit a recognized organization from serving a limited number of clients regardless of income. 33 In serving these clients, however, a recognized organization would not be permitted to charge or request legal fees, membership dues, or donations that are greater than those that it charges or requests from low-income and indigent clients. 34
33 For instance, an organization may continue its representation of a previously indigent client who improves his or her financial status during the course of representation in order to provide continuity of qualified legal services. An organization may also provide legal services to a limited number of clients regardless of income if those persons are particularly vulnerable ( e.g., they are illiterate, have limited English proficiency, or have little or no formal education), or if the organization is the only available and qualified provider of immigration legal services in its area.
34 To be clear, the requirements of this rule would be applicable only to organizations that apply for and are approved for recognition from EOIR under this rule, and thereby elect to make themselves subject to these requirements as a condition of eligibility for recognition.
f. Adequate Knowledge, Information, and Experience
The current R&A regulations require an organization to “ha[ve] at its disposal adequate knowledge, information and experience” to be recognized. 35 The proposed rule would maintain this requirement but also identify the proof necessary to satisfy the requirement in accord with Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), and Matter of Lutheran Ministries of Florida, 20 I&N Dec. 185 (BIA 1990)
The current R&A regulations require an organization to “ha[ve] at its disposal adequate knowledge, information and experience” to be recognized. 35 The proposed rule would maintain this requirement but also identify the proof necessary to satisfy the requirement in accord with Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), and Matter of Lutheran Ministries of Florida, 20 I&N Dec. 185 (BIA 1990). Specifically, the organization must describe, among other things: The services it intends to offer; the legal resources to which it has access; its staff's qualifications and breadth of immigration knowledge; formal trainings attended by staff; and agreements with non-staff immigration practitioners or other organizations for consultations or technical legal assistance. 36
35 8 CFR 1292.2(a)(2).
36 See Matter of EAC, Inc., 24 I&N Dec. at 558-62.
Although attorney mentors are encouraged, 37 the proposed rule does not require an attorney on staff or attorney supervision of accredited representatives, as some commenters proposed, due to cost and feasibility concerns. 38 Ultimately, the organization must show that it has the resources to adequately monitor its accredited representatives as well as sufficient knowledge, information, and experience to provide competent legal assistance on immigration matters for which it provides services.
37 An organization associated with an attorney who is not on staff but who provides consultations or technical legal assistance to the organization's accredited representatives is expected to demonstrate the degree of interaction and association with the attorney, and to state if the attorney charges a fee for such assistance. Recognition should not be misused as a means for organizations to engage in for-profit referrals or fee sharing with private counsel. See Matter of Baptist Educational Center, 20 I&N Dec. 723, 736 (BIA 1993).
38 R&A Program Comments at 13, 20, 31, 43,51, 62, 70. 74.
g
te the degree of interaction and association with the attorney, and to state if the attorney charges a fee for such assistance. Recognition should not be misused as a means for organizations to engage in for-profit referrals or fee sharing with private counsel. See Matter of Baptist Educational Center, 20 I&N Dec. 723, 736 (BIA 1993).
38 R&A Program Comments at 13, 20, 31, 43,51, 62, 70. 74.
g. Authorized Officer
The proposed rule would require an organization to designate an authorized officer, who is empowered to act on its behalf for all matters related to recognition and accreditation. This requirement will facilitate accountability and communication between OLAP and the organization. The president, secretary, executive director, or other designated individual of the organization may serve as the authorized officer of the organization.
2. Accreditation Qualifications
To be accredited under the current R&A regulations, an individual must have good moral character. The current regulations also require the organization to describe an individual's knowledge of and experience in immigration law and procedure without specifying a minimum standard of knowledge and experience. The proposed rule replaces the good moral character requirement with a character and fitness requirement that seeks to more comprehensively examine an individual's suitability to represent clients. The proposed rule also explicitly requires that individuals be an employee or volunteer of the organization to be accredited so that they are subject to the supervision and direction of the organization. The proposed rule clarifies the amount of knowledge and experience required by adopting a broad knowledge and adequate experience standard the Board has applied. Finally, the proposed rule precludes attorneys as defined by 8 CFR 1001.1(f) and individuals who have been convicted of a serious crime or who are under an order restricting their practice of law from being accredited.
a
e organization. The proposed rule clarifies the amount of knowledge and experience required by adopting a broad knowledge and adequate experience standard the Board has applied. Finally, the proposed rule precludes attorneys as defined by 8 CFR 1001.1(f) and individuals who have been convicted of a serious crime or who are under an order restricting their practice of law from being accredited.
a. Character and Fitness
Whereas the current R&A regulations require that a proposed accredited representative be a person of “good moral character,” 39 the proposed rule instead would require an organization to affirm that its proposed representative possesses the “character and fitness” to represent clients before the immigration courts, the Board, or DHS. The proposed rule's character and fitness requirement allows for a more comprehensive examination of a proposed representative's suitability to represent clients, which is similar to the standards and principles of fitness that state bars apply to applicants for admission. 40 The character and fitness requirement is meant to ensure that an accredited representative possesses the honesty, trustworthiness, diligence, professionalism, and reliability to execute his or her fiduciary duties and professional responsibilities to clients, adversaries, and adjudicators through an examination of factors such as: criminal 41
39 8 CFR 1292.2(d).
40 See National Conference of Bar Examiners and American Bar Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2015, at vii, 4-7, http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2015_comprehensive_guide_to_bar_admission_requirements.authcheckdam.pdf (last visited Sept. 15, 2015); Virginia Board of Bar Examiners, Character and Fitness Requirements, http://barexam.virginia.gov/cf/cfreq.html (last visited Sept
dmissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2015, at vii, 4-7, http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2015_comprehensive_guide_to_bar_admission_requirements.authcheckdam.pdf (last visited Sept. 15, 2015); Virginia Board of Bar Examiners, Character and Fitness Requirements, http://barexam.virginia.gov/cf/cfreq.html (last visited Sept. 15, 2015) (applicant for bar admission must demonstrate, inter alia, “honest demeanor” and “good moral character”); Pennsylvania Board of Law Examiners, What are the Character and Fitness Standards?, http://www.pabarexam.org/c_and_f/cffaqs/2.htm (last visited Sept. 15, 2015); N.H. Sup. Ct. R. 42B(II) (character and fitness standards include proving “good moral character”).
41 The character and fitness requirement also avoids potential confusion created by the “good moral character” requirement, which is a term of art used to establish eligibility for relief under the Immigration and Nationality Act. See 8 U.S.C. 1101(f).
An individual's current immigration status is also a separate factor in the fitness determination because of the inherent conflict in having accredited representatives represent individuals before the same immigration agencies before whom they are actively appearing in their personal capacities. Moreover, an individual's immigration status may affect whether immigration practitioners can continue their representation of clients throughout the pendency of their clients' immigration matters. Therefore, the Department is seeking input from the public regarding the parameters of this factor, and is considering whether individuals seeking accreditation must, for example, have employment authorization or not be in active proceedings before DHS or EOIR
ether immigration practitioners can continue their representation of clients throughout the pendency of their clients' immigration matters. Therefore, the Department is seeking input from the public regarding the parameters of this factor, and is considering whether individuals seeking accreditation must, for example, have employment authorization or not be in active proceedings before DHS or EOIR.
The character and fitness requirement may be satisfied by the signatures of the organization and its proposed representative on the request for accreditation (Form EOIR-31A), attesting that the proposed representative has the requisite character and fitness. The signatures affirm that the proposed representative has, among other things, a record of honesty, trustworthiness, diligence, professionalism, and reliability. The signatures also attest that the proposed representative's work will be performed in the United States. Additional documentation, such as a favorable background check and letters of recommendation attesting to the individual's good character, may also support the character and fitness requirement for accreditation. 42
42 If a proposed representative has an issue in his or her record that may affect the character and fitness determination, the organization and the proposed representative should address that issue in the request for accreditation and produce any relevant documentation so that OLAP can determine whether the proposed representative satisfies the character and fitness standard.
b. Employee or Volunteer
The proposed rule would explicitly require that a proposed representative for accreditation be subject to the direction and supervision of the organization as either its employee or its volunteer. 43 In order to demonstrate that this requirement is satisfied, the organization and its proposed representative must sign Form EOIR-31A attesting to the employment or volunteer relationship
r Volunteer
The proposed rule would explicitly require that a proposed representative for accreditation be subject to the direction and supervision of the organization as either its employee or its volunteer. 43 In order to demonstrate that this requirement is satisfied, the organization and its proposed representative must sign Form EOIR-31A attesting to the employment or volunteer relationship.
43 Under the current R&A regulations, an accredited representative's employment or connection to a recognized organization is presumed. See 8 CFR 1292.2(d) (“Accreditation terminates . . . when the representative's employment or other connection with the organization ceases.”). Under 8 U.S.C. 1324a, recognized organizations must verify that their accredited representative employees are authorized to work in the United States.
c. Broad Knowledge and Adequate Experience
The proposed rule would require an organization to show that a proposed representative possesses “broad knowledge and adequate experience in immigration law and procedure” and that a proposed representative for whom the organization seeks full accreditation has “skills essential for effective litigation.” Under the current R&A regulations, organizations are simply required to describe “the nature and extent of the proposed representative's experience and knowledge of immigration and naturalization law and procedure.” 44 The intent of the proposed rule is to follow the Board's precedential decisions in Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), 45 and Matter of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013), 46 which specified the knowledge and experience sufficient to warrant accreditation.
44 8 CFR 1292.2(d)
ience and knowledge of immigration and naturalization law and procedure.” 44 The intent of the proposed rule is to follow the Board's precedential decisions in Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), 45 and Matter of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013), 46 which specified the knowledge and experience sufficient to warrant accreditation.
44 8 CFR 1292.2(d).
45 In Matter of EAC, the Board explained that an accredited representative must have broad knowledge so that he or she is “able to readily identify immigration issues of all types, even in areas where no services are provided, and has the ability to discern when it is in the best interests of the aliens served to refer those with more complex immigration issues elsewhere.” 24 I&N Dec. at 564. The Board, however, did not require a level of experience equal to the accredited representative's knowledge. Rather, it acknowledged that an accredited representative's experience with immigration law “need not be fully commensurate with his or her knowledge to be considered adequate.” Id. The Board further noted that fully accredited representatives had to “possess skills essential for effective litigation,” such as the ability to engage in oral and appellate advocacy, present documentary evidence and question witnesses, and prepare motions and briefs. Id.
46 In Matter of Central California Legal Services, Inc., the Board found that a successful application for accreditation must show that the proposed representative “recently completed at least one formal training course designed for new practitioners and that the training provided a solid overview of the fundamentals of immigration law and procedure.” 26 I&N Dec. at 106.
The proposed rule does not establish a required number of formal training hours, specific courses, or testing to show broad knowledge and experience for initial accreditation or for renewal of accreditation, although some commenters recommended doing so
for new practitioners and that the training provided a solid overview of the fundamentals of immigration law and procedure.” 26 I&N Dec. at 106.
The proposed rule does not establish a required number of formal training hours, specific courses, or testing to show broad knowledge and experience for initial accreditation or for renewal of accreditation, although some commenters recommended doing so. 47 While such requirements would be helpful in establishing minimum standards of knowledge and experience, imposing these requirements by regulation would limit OLAP's flexibility to adapt them to the ever-changing immigration legal landscape, might result in increased costs to organizations, and could overlook the unique training needs of organizations that provide legal services to particular populations and offer specialized services. 48 Nonetheless, OLAP may recommend education, testing, training courses and hours, or internships that could be sufficient to satisfy the broad knowledge and adequate experience requirement for accreditation. 49
47 R&A Public Meeting Minutes at 4-5; R&A Comments at .2, 3, 10, 20-21, 24-25, 29, 49. 54, 60, 65; AILA Comments at 5.
48 See R&A Public Meeting Minutes at 4-5; R&A Comments at 43, 49, 55, 73.
49 OLAP anticipates meeting with stakeholders to develop “best practices” guidelines. In the future, OLAP may also consider undertaking a separate rulemaking process to establish certification standards for training providers.
d. No Attorneys, No Orders Restricting Practice of Law or Representation, No Serious Crimes
The proposed rule would restrict accreditation to non-attorneys and individuals who have not been convicted of a serious crime and are not subject to an order restricting their practice of law. The proposed rule also bars attorneys licensed in the United States from accreditation because accreditation is not necessary for attorneys to represent clients before EOIR or DHS, and thus granting them accreditation would serve no meaningful purpose
n to non-attorneys and individuals who have not been convicted of a serious crime and are not subject to an order restricting their practice of law. The proposed rule also bars attorneys licensed in the United States from accreditation because accreditation is not necessary for attorneys to represent clients before EOIR or DHS, and thus granting them accreditation would serve no meaningful purpose. 50
50 See 8 CFR 1001.1(f), 1292(a)(1).
Currently, the regulations allow the Board to sanction ( i.e., through suspension, disbarment, censure, or otherwise) accredited representatives who are subject to a final order of disbarment of suspension, who resign while a disciplinary investigation or proceeding is pending, or who have been convicted of a serious crime. 51 The proposed rule largely reiterates these restrictions, 52 but extends the serious crime restriction to cover foreign as well as domestic serious crime convictions. This is because individuals for whom accreditation is sought may have been convicted of serious crimes while living or residing in foreign countries. The See, e.g., 8 U.S.C. § 1101(a)(43) (stating that the term “aggravated felony” applies to certain “offense[s] in violation of the law of a foreign country”).
51 See 8 CFR 1003.101(a), 1003.102(e), (h).
52 The prohibition against accrediting individuals who are subject to an order restricting their practice of law is primarily directed at preventing attorneys who have been suspended or disbarred from becoming accredited and thereby circumventing the order of suspension or disbarment.
In order to demonstrate that the above qualifications are satisfied, the organization and its proposed representative must sign Form EOIR-31A attesting that the representative is not an attorney licensed to practice in the United States; is not subject to an order restricting his or her practice of law or representation before a court or administrative agency; and has not been convicted of a serious crime.
3
emonstrate that the above qualifications are satisfied, the organization and its proposed representative must sign Form EOIR-31A attesting that the representative is not an attorney licensed to practice in the United States; is not subject to an order restricting his or her practice of law or representation before a court or administrative agency; and has not been convicted of a serious crime.
3. Applying for Recognition and Accreditation
The proposed rule would modify the filing and review process for recognition and accreditation requests. Under the current process, organizations use Form EOIR-31 to request recognition, and the form identifies the requirements for recognition. 53 Organizations, however, are not required by regulation to file a form to apply for or renew accreditation of a representative. Rather, they may file a letter and supporting documentation or they may file voluntary form EOIR-31A. The proposed rule would require that organizations use Form EOIR-31A to request accreditation (or the renewal of accreditation) for their representatives. The required form should both simplify the accreditation request process for applicants by clarifying the required information and promote efficient and effective administration of the program to ensure that only qualified and competent applicants are recognized and accredited. 54
53 The current regulations refer to the outdated INS Form G-27 application for recognition. 8 CFR 1292.2(b). Upon EOIR's creation, EOIR re-designated the application for recognition as Form EOIR-31.
54 EOIR intends to regularly make available average processing times for recognition and accreditation applications.
The proposed rule would modify the requirements for service of requests for recognition and accreditation in two ways. First, the proposed rule requires service of a request for recognition or accreditation only on USCIS, not on both USCIS and ICE
or recognition as Form EOIR-31.
54 EOIR intends to regularly make available average processing times for recognition and accreditation applications.
The proposed rule would modify the requirements for service of requests for recognition and accreditation in two ways. First, the proposed rule requires service of a request for recognition or accreditation only on USCIS, not on both USCIS and ICE. 55 All accredited representatives may appear before USCIS, and approximately eighty percent of accredited representatives and their recognized organizations provide representation solely before USCIS. Therefore, it is unnecessary for organizations to serve all requests for recognition and accreditation on ICE. If OLAP determines that it may be beneficial to obtain a recommendation or information from ICE, particularly with applications for renewal of full accreditations, OLAP may make a request to ICE for a recommendation or information. 56 Second, the proposed rule requires service on the USCIS district offices in the jurisdictions where the organization and its representatives offer or intend to offer services, rather than the USCIS district offices where the organization is located. The proposed rule's service requirements with respect to USCIS will ensure involvement from the USCIS offices that are most likely to have relevant information, particularly with regard to applicants who have previously practiced before USCIS in other circumstances. 57
55 The current Form EOIR-31 states that requests for recognition and accreditation must be served on the USCIS district director and the ICE chief counsel who have jurisdiction over the area in which the organization is located. See Form EOIR-31, OMB# 1125-0012, at 1 (Oct. 2014).
56 For most initial requests for recognition or accreditation, ICE would have no information regarding an organization or its proposed representatives, unless the organization or proposed representatives were previously recognized or accredited
r and the ICE chief counsel who have jurisdiction over the area in which the organization is located. See Form EOIR-31, OMB# 1125-0012, at 1 (Oct. 2014).
56 For most initial requests for recognition or accreditation, ICE would have no information regarding an organization or its proposed representatives, unless the organization or proposed representatives were previously recognized or accredited.
57 As in the current regulations, any USCIS recommendation regarding a request for recognition or accreditation will be served on the organization, which will then have the opportunity to respond to any unfavorable recommendation.
The proposed rule also allows OLAP to gather information from new sources—other than USCIS and ICE—in evaluating requests for recognition and accreditation. OLAP may request investigations and receive information from the EOIR disciplinary counsel and the EOIR anti-fraud officer when evaluating recognition and accreditation requests. OLAP may also consider publicly available information, such as newspaper articles or other public records. Unfavorable information obtained by OLAP from these sources, or from USCIS or ICE, that may be relied upon to disapprove a recognition or accreditation request, if not previously served on the organization, will be disclosed to the organization. The organization will be given a reasonable opportunity to respond to such unfavorable information prior to any determination on the request for recognition or accreditation.
In addition, in order to minimize adverse determinations, OLAP may request additional information from an organization prior to issuing a determination on a request for recognition or accreditation. 58 This process is similar to a USCIS Request for Evidence in the immigration petition or application context. 59 This new process will allow organizations to address concerns or questions, thereby facilitating the approval of their applications when appropriate
tion issues, the proposed rule provides that OLAP's recognition or accreditation determinations would be final ( i.e., there would be no appeal of an adverse determination). An organization whose request for recognition or accreditation is disapproved may submit a new request for recognition or accreditation when the organization believes it has overcome or corrected the basis for disapproval.
4. Extending Recognition and Accreditation
The proposed rule eliminates the requirement that organizations with multiple offices submit separate applications for recognition of each physical location, 60 and instead grants OLAP the discretion to approve extensions of recognition and accreditation of representatives from the headquarters or designated office of an organization to other offices or locations where the organization provides immigration legal services. This change 61 It seems unnecessary and overly burdensome to require an organization with multiple offices but virtually the same staff, structure, mission, and tax status to independently apply for recognition at each location. 62
60 Currently, the Board requires an organization with physically separate branch offices to request recognition for each branch office, even if another office is already recognized. Matter of Florida Rural Legal Services, Inc., 20 I&N Dec. 639, 640 (BIA 1993). The Board also required organizations to file separate requests for accreditation at each branch office until recently, when it eliminated the requirement because organizations were filing duplicative applications for the same individual. See Matter of United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014). The proposed rule adopts a similar approach and extends it to allow organizations with multiple branch offices to seek OLAP's approval to extend recognition as well as accreditation to multiple locations without the need to submit a separate, largely redundant request
filing duplicative applications for the same individual. See Matter of United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014). The proposed rule adopts a similar approach and extends it to allow organizations with multiple branch offices to seek OLAP's approval to extend recognition as well as accreditation to multiple locations without the need to submit a separate, largely redundant request. As a result, the proposed rule eliminates duplicative requests for both recognition and accreditation.
61 For example, this provision may allow for a farm workers' organization with a mobile van to travel to rural locations in order to provide immigration legal services to its clients or for an organization to provide services via videoconferencing equipment when a client is at one office and a representative is at a second office.
62 See also Matter of United Farm Workers Foundation, 26 I&N Dec. at 456 & n.2 (noting that elimination of “per branch” accreditation will “lessen the paperwork and costs associated with duplicative applications, and it will eliminate the unproductive need for recognized organizations to monitor multiple expiration dates for the same accredited representative”).
To extend recognition to another office or location, the proposed rule does not require a recognized organization to fully complete a Form EOIR-31 for the new office or location. Rather, the recognized organization must simply submit Form EOIR-31 with the names and addresses of offices or locations where it intends to provide services and affirm that it conducts regular inspections, supervises and controls its accredited representatives, and provides access to adequate legal resources at each office or location where services will be provided. An organization seeking to extend recognition to an office or location must conduct periodic inspections of that office or location, but daily supervision of accredited representatives would not be expected
conducts regular inspections, supervises and controls its accredited representatives, and provides access to adequate legal resources at each office or location where services will be provided. An organization seeking to extend recognition to an office or location must conduct periodic inspections of that office or location, but daily supervision of accredited representatives would not be expected. Once the request for extension is approved, the organization's accredited representatives may represent clients out of each of the offices or locations listed. The addresses of these offices or locations and the associated accredited representatives will be placed on the roster of recognized organizations and accredited representatives.
The proposed rule does not require OLAP to extend recognition and accreditation to all offices or locations of an organization. Rather, OLAP, in its discretion, may direct an office or location of an organization to independently seek recognition and the accreditation of its representatives. For example, if a national non-profit organization applied to extend recognition from its headquarters to a branch or affiliate office with its own non-profit organizing documents, staff, funding sources, fee schedules, and other distinct operations, the branch office would likely be required to independently seek recognition and the accreditation of its representatives.
5. The Validity Period, Renewal of Recognition and Accreditation, and Change in Accreditation
a. Validity Period for Recognition and Accreditation
Under the current R&A regulations, recognized organizations are recognized indefinitely, unless their recognition is withdrawn. Accredited representatives, on the other hand, are currently required to request renewal of their accreditation every three years
alidity Period, Renewal of Recognition and Accreditation, and Change in Accreditation
a. Validity Period for Recognition and Accreditation
Under the current R&A regulations, recognized organizations are recognized indefinitely, unless their recognition is withdrawn. Accredited representatives, on the other hand, are currently required to request renewal of their accreditation every three years. Some commenters recommended that organizations be required to renew their recognition to address the perceived ineffectiveness of the current rule's withdrawal of recognition process and to improve oversight of recognized organizations, whereas others have recommended an annual update by the organization rather than a full re-recognition process. 63 Commenters also expressed concern regarding unduly burdensome requirements for renewal of recognition and have suggested up to a five-year renewal period. 64
63 See R&A Public Meeting Minutes at 2-3. Some commenters recommended that EOIR institute an annual registration or reporting process, possibly online, that would allow active organizations to update relevant information rather than go through, or in addition to, the re-recognition process. See R&A Program Comments at 45, 57, 64; AILA Comments at 2. EOIR does not have the resources at this time to create electronic records for recognition and accreditation or an online update process for organizations. EOIR also has concerns that an annual re-registration would not be sufficiently thorough to allow for meaningful oversight or address potential fraud by unscrupulous individuals.
64 See R&A Program Comments at 8, 18, 79.
Under the proposed rule, recognition would be valid for a period of three years, unless the organization has been granted conditional recognition, which is valid only for two years, or the organization has its recognition administratively terminated or is disciplined (through revocation or termination) prior to the conclusion of its recognition period
64 See R&A Program Comments at 8, 18, 79.
Under the proposed rule, recognition would be valid for a period of three years, unless the organization has been granted conditional recognition, which is valid only for two years, or the organization has its recognition administratively terminated or is disciplined (through revocation or termination) prior to the conclusion of its recognition period. The accreditation period of a representative would run concurrently with the organization's recognition period or, if approved separately from the organization's recognition, the representative's accreditation would expire on the same date the organization's period of recognition ends, unless the representative is administratively terminated or the representative is disciplined (through termination, revocation, suspension, or disbarment) prior to the conclusion of the recognition period. This framework simplifies the renewal process for the organization, which must seek renewal for both itself and its representatives at the same time, and reinforces the interdependence between recognition and accreditation, as accreditation does not exist independently of association with a recognized organization.
b. Renewal of Recognition and Accreditation
As noted above, the proposed rule provides that, in order to retain recognition, an organization must renew its recognition along with the accreditation of its representatives every three years, or two years after a grant of conditional recognition. 65 For recognition to be renewed for a three-year period, the organization must have at least one representative simultaneously approved for accreditation. 66 Recognition of an organization and accreditation of its representatives remain valid pending a determination on the renewal requests
creditation of its representatives every three years, or two years after a grant of conditional recognition. 65 For recognition to be renewed for a three-year period, the organization must have at least one representative simultaneously approved for accreditation. 66 Recognition of an organization and accreditation of its representatives remain valid pending a determination on the renewal requests. Organizations and representatives seeking renewal of their status, even those in pending disciplinary proceedings, are presumed to be in good standing and remain eligible to provide immigration legal services during OLAP's consideration of the renewal request. 67
65 A renewal application must be received by the OLAP Director on or before the third anniversary date of the last decision approving the organization's recognition (or two years after an approval of conditional recognition). Given the documentation necessary to establish eligibility for renewal, an organization should generally refrain from submitting an application more than 60 days prior to its anniversary date. The proposed rule also provides OLAP with discretion to accept an application out of time.
66 Accordingly, when applying for renewal, the organization must: (1) Renew accreditation of at least one current representative; (2) request accreditation for a new proposed representative; or (3) both.
67 However, a representative in pending disciplinary proceedings who has received an interim suspension that precludes practice before USCIS or EOIR during the pendency of the proceedings is not presumed to be in good standing.
To renew recognition, the organization must file Form EOIR-31, establish that it continues to maintain the qualifications for recognition; submit fee schedules and annual reports compiled since its last approval of recognition; and describe any unreported changes that impact eligibility for recognition since the last approval of recognition
the proceedings is not presumed to be in good standing.
To renew recognition, the organization must file Form EOIR-31, establish that it continues to maintain the qualifications for recognition; submit fee schedules and annual reports compiled since its last approval of recognition; and describe any unreported changes that impact eligibility for recognition since the last approval of recognition. The new
To renew accreditation, the organization must use Form EOIR-31A, establish that the accredited representative continues to maintain the qualifications for accreditation, and show that the representative has continued to receive formal training in immigration law and procedure commensurate with the services the organization provides and the duration of the representative's accreditation.
The proposed rule does not mandate testing or the type or amount of training required to renew accreditation. 68 Rather, similar to the Board's interpretation of the current regulations, the proposed rule imposes a formal training requirement and requires the organization to provide evidence of completed training upon applying for renewal. 69 The formal training courses should focus generally on recent developments in immigration law and procedure, but may concern specific areas, such as citizenship, asylum, VAWA, or criminal law and the consequences of criminal convictions in immigration proceedings, as may be relevant to the nature of the representative's casework. Case management skills, ethics, and professional responsibility training are also recommended.
68 The training requirement for renewal of accreditation has been the subject of much debate, but there has been no consensus among training advocates as to the appropriate type and amount of training or who should provide the training and how it should be delivered. See R&A Public Meeting Minutes at 4-5; R&A Program Comments at 2, 10-11, 20-22, 24, 40, 43, 54, 60, 65, 68-69; AILA Comments at 5-6
68 The training requirement for renewal of accreditation has been the subject of much debate, but there has been no consensus among training advocates as to the appropriate type and amount of training or who should provide the training and how it should be delivered. See R&A Public Meeting Minutes at 4-5; R&A Program Comments at 2, 10-11, 20-22, 24, 40, 43, 54, 60, 65, 68-69; AILA Comments at 5-6. EOIR considered but rejected including requirements in the proposed rule for mandatory testing or a specified type or amount of training. Inclusion of such requirements would necessarily increase the costs of applying for recognition and accreditation, as they would likely involve fees and added expenses for organizations. Those fees and added expenses, in turn, would likely result in increased charges for services to clients of the organization. Furthermore, EOIR currently does not have the resources to develop its own mandatory testing and training program for accredited representatives.
69 In Matter of Central California Legal Services, Inc., the Board noted that “[w]hen a recognized organization seeks to renew a representative's accreditation, it should provide documentation that its accredited representative has received additional formal training in immigration law since the most recent accreditation.” 26 I&N Dec. at 106-07 n.3.
In its renewal request, an organization should also show, through its annual reports, the types and numbers of immigration applications and cases handled by the accredited representative during the accreditation period, and submit letters of recommendation from individuals who can attest to the representative's character and performance during the period. The duration of a representative's accreditation is relevant in this regard, as a representative who was accredited six months prior to the renewal date would not necessarily be expected to show the same amount of formal training and work experience as a representative who was accredited for an entire three-year period
can attest to the representative's character and performance during the period. The duration of a representative's accreditation is relevant in this regard, as a representative who was accredited six months prior to the renewal date would not necessarily be expected to show the same amount of formal training and work experience as a representative who was accredited for an entire three-year period. Nonetheless, the organization would be expected to provide information regarding any training attended or cases handled by the representative during the abbreviated period of accreditation. Even an experienced representative who has been re-accredited several times should demonstrate continued formal training.
OLAP's process for evaluating recognition and accreditation renewal requests is similar to the review process for initial recognition and accreditation requests. OLAP may receive a recommendation from USCIS regarding the requests, and it may request additional information from the organization, review publicly available information, or seek an investigation and information from USCIS, ICE, the EOIR disciplinary counsel, or the EOIR anti-fraud officer. The organization will have the opportunity to respond to unfavorable information that was not previously provided to it that OLAP may use to make its renewal determination.
As in the context of initial requests, discussed in Part IV.B.3 above, the proposed rule provides that OLAP's determinations regarding recognition or accreditation renewal requests would be final ( i.e., there would be no appeal from an adverse determination).
For an organization whose request for renewal of recognition is disapproved, both its recognition and the accreditation of its representatives will terminate upon service of an administrative termination notice. However, the disapproved organization may submit a new request for recognition or accreditation.
c
uests would be final ( i.e., there would be no appeal from an adverse determination).
For an organization whose request for renewal of recognition is disapproved, both its recognition and the accreditation of its representatives will terminate upon service of an administrative termination notice. However, the disapproved organization may submit a new request for recognition or accreditation.
c. Change in Accreditation
The proposed rule permits a recognized organization to request, at any time during the validity period of accreditation or at renewal, that a representative's status be changed from partial to full accreditation. A request for a change to full accreditation must demonstrate that the representative has the skills essential for effective litigation of cases before the immigration courts and the Board, such as legal research and oral and written trial and appellate advocacy skills. If an organization requests a change from partial to full accreditation at renewal, and that request is disapproved, OLAP may renew the representative's partial accreditation provided that the representative satisfies the requirements for renewal of such accreditation.
d. Organizations and Representatives Recognized and Accredited Prior to the Effective Date of the Final Rule
Organizations and representatives recognized and accredited prior to the effective date of this rule when it is adopted in final form will remain recognized and accredited. 70 However, these organizations and representatives would be subject to the provisions of the final rule when it becomes effective, and they would be required to request renewal of recognition and renewal of accreditation for their representatives based on certain triggers, as set forth below:
70 At the effective date of the final rule, a pending application for initial recognition, initial accreditation, or renewal of accreditation before the Board would be transferred to OLAP to review
final rule when it becomes effective, and they would be required to request renewal of recognition and renewal of accreditation for their representatives based on certain triggers, as set forth below:
70 At the effective date of the final rule, a pending application for initial recognition, initial accreditation, or renewal of accreditation before the Board would be transferred to OLAP to review. Organizations with such pending applications would have to meet the new requirements of the final rule to be approved for recognition or accreditation. OLAP will provide organizations with pending applications the opportunity to amend the applications, if necessary, to conform to the new requirements of the final rule. Further guidance will be provided prior to the effective date of the final rule.
• Organizations without an accredited representative would be required to renew recognition within one year of the effective date of the final rule, so that such organizations become compliant with the rule's requirement that recognized organizations have at least one accredited representative.
• Organizations submitting a request for accreditation of a new representative or a request for extension of recognition and accreditation to an additional office or location would be required to renew recognition and accreditation of all representatives at that time, so that the organization's recognition and the accreditation of its representatives remain linked and subject to renewal at the same time
nizations submitting a request for accreditation of a new representative or a request for extension of recognition and accreditation to an additional office or location would be required to renew recognition and accreditation of all representatives at that time, so that the organization's recognition and the accreditation of its representatives remain linked and subject to renewal at the same time.
• Organizations that do not fall into either of the above categories would be required to apply for renewal of recognition within two years of the effective date of the final rule if the organization was recognized for more than ten years prior to the effective date, or within three years of the effective
If the accreditation of a currently accredited representative would otherwise expire prior to the date that the organization is required to renew recognition under this rule, the representative's renewal date will be tied to the organization's renewal date. In other words, if a representative's accreditation would otherwise expire one year after the effective date of the final rule, but the organization is not required to renew its recognition until two years after the effective date, the representative's accreditation continues in effect and does not need to be renewed until year two, at which time the organization will be required to seek renewal of recognition for itself and renewal of its representatives' accreditations at the same time. If an organization timely files a request for renewal of recognition and accreditation, both the recognition of the organization and the accreditation of its representatives will remain valid pending OLAP's consideration of the renewal requests
which time the organization will be required to seek renewal of recognition for itself and renewal of its representatives' accreditations at the same time. If an organization timely files a request for renewal of recognition and accreditation, both the recognition of the organization and the accreditation of its representatives will remain valid pending OLAP's consideration of the renewal requests.
Except for the new eligibility requirements of the final rule, 71 which would not be applicable until the time of renewal, these organizations and representatives would be subject to the provisions of the final rule as of its effective date, including the new disciplinary rules and procedures and any ground of administrative termination. Thus, these organizations and representatives may have their recognition or accreditation administratively terminated or may be subject to disciplinary action for incompetence, misconduct, or other disciplinary grounds.
71 Note that the formal training requirement for renewal specified at 1292.16(c) is not a new eligibility requirement for renewal of accreditation. See supra n.69 (discussing Matter of Central California Legal Services and the need to show continued training for renewal of accreditation). Accordingly, representatives accredited prior to the effective date of the final rule will continue to be subject to the formal training requirement when they seek renewal under the final rule.
6. Conditional Recognition
The proposed rule provides for conditional recognition of organizations that have not been previously recognized or that are recognized anew after having lost recognition due to an administrative termination or disciplinary sanctions. Some commenters have suggested that newly recognized organizations should be subject to a probationary period to assess their capabilities as non-profit providers of immigration legal services
for conditional recognition of organizations that have not been previously recognized or that are recognized anew after having lost recognition due to an administrative termination or disciplinary sanctions. Some commenters have suggested that newly recognized organizations should be subject to a probationary period to assess their capabilities as non-profit providers of immigration legal services. 72 Conditional recognition provides such a probationary period and requires the specified organizations to apply for renewal under the processes outlined above within two years of the date that OLAP granted conditional recognition.
72 R&A Program Comments at 15, 77.
For a new organization, the two-year period provides the necessary time for the organization to establish itself and demonstrate that it can maintain the qualifications for recognition. Specifically, the conditional recognition period should provide sufficient time for new organizations to submit relevant tax documents, develop their client base, and establish a track record of offering immigration legal services to the community. The two-year conditional recognition period also should facilitate informed recommendations from USCIS and others in the community as to the competence of the organization and its representatives. For a previously recognized organization that was subject to an administrative termination or disciplinary sanctions, conditional recognition places it in the same position as a “new” organization. But the two-year period allows OLAP the opportunity to review the organization at an earlier renewal date to ensure that the same issues that led to an organization's earlier termination or discipline do not resume. Once OLAP approves a conditionally recognized organization for renewal of recognition, the organization and its accredited representatives then become subject to the standard three-year renewal cycle.
7
iod allows OLAP the opportunity to review the organization at an earlier renewal date to ensure that the same issues that led to an organization's earlier termination or discipline do not resume. Once OLAP approves a conditionally recognized organization for renewal of recognition, the organization and its accredited representatives then become subject to the standard three-year renewal cycle.
7. Reporting, Recordkeeping, and Posting Requirements
The proposed rule would impose reporting, recordkeeping, and posting requirements on recognized organizations and permit OLAP to administratively terminate recognition if OLAP determines that such a sanction is warranted because an organization fails to comply with these requirements after being notified of the deficiencies and having an opportunity to respond. These measures are intended to promote accountability from recognized organizations and serve as deterrents against fraud and abuse by individuals seeking to exploit the recognition and accreditation process.
First, the proposed rule would clarify the scope of the duty to report set forth in the current R&A regulations and EOIR's guidance to organizations, 73 and identify additional changes that must be reported to OLAP, including updated email addresses and Web sites, as well as changes in non-profit or tax-exempt status. Organizations must report these changes as soon as possible, but generally not later than 30 days from the date of the change.
73 See 8 CFR 1292.2(b), (d); EOIR, Recognition & Accreditation (R&A) Program, http://www.justice.gov/eoir/recognition-and-accreditation-program (last visited Sept. 15, 2015)
ing updated email addresses and Web sites, as well as changes in non-profit or tax-exempt status. Organizations must report these changes as soon as possible, but generally not later than 30 days from the date of the change.
73 See 8 CFR 1292.2(b), (d); EOIR, Recognition & Accreditation (R&A) Program, http://www.justice.gov/eoir/recognition-and-accreditation-program (last visited Sept. 15, 2015). The proposed rule provides a non-exhaustive list of the types of changes for which an organization would have a duty to report, including changes to: The organization name, address, telephone number, Web site address, email address, or the designation of authorized officer of the organization; an accredited representative's name or employment or volunteer status with the organization; and the organization's structure.
Second, the proposed rule would add a new recordkeeping requirement, which will provide OLAP with a means to monitor organizations and ensure their compliance with the recognition requirements. Specifically, recognized organizations would be required to compile certain records and maintain them for six years after the creation of the records, 74 including annual reports and fee schedules, if any, for each office or location where services are provided. 75 These records may be requested for inspection by USCIS or EOIR in connection with an investigation, but they are primarily necessary to apply for renewal of recognition. The recordkeeping requirement should not be unduly burdensome, as organizations likely are required to retain such information for client-file retention, tax, or other accounting purposes. Moreover,
74 The six-year record retention requirement is consistent with some state client-file retention policies for attorneys. See, e.g., American Bar Association, Materials on Client File Retention, http://www.americanbar.org/groups/professional_responsibility/services/ethicsearch/materials_on_client_file_retention.html (last visited Sept
t-file retention, tax, or other accounting purposes. Moreover,
74 The six-year record retention requirement is consistent with some state client-file retention policies for attorneys. See, e.g., American Bar Association, Materials on Client File Retention, http://www.americanbar.org/groups/professional_responsibility/services/ethicsearch/materials_on_client_file_retention.html (last visited Sept. 15, 2015); see generally Model Rules of Prof'l Conduct 1.16(d) (regarding attorney's obligation as to client records upon termination of representation); ABA Model Code of Prof'l Responsibility DR 2-110(A)(2) (regarding attorney's obligations as to client records upon withdrawal of representation). A recognized organization at the time the final rule becomes effective would be required to begin maintaining the specified records. An organization recognized after the effective date of the final rule must maintain the records prospectively. Both such organizations may destroy or discard any such records for recognition and accreditation purposes that are outside the six-year retention period.
75 The annual report should include information already gathered by the organization such as the number of clients served, the types of services provided, the number of clients who were provided services at no cost, the total amount of fees charged to and donations or dues requested from immigration clients for the services provided, and the offices or locations where accredited representatives provided legal services.
Third, the proposed rule would authorize OLAP to require recognized organizations to post certain public notices. 76 These limited notices would provide information to the public about the R&A program, the requirements for recognition and accreditation, and the approval period of an organization's recognition and the accreditation of its representatives. 77 The notices would also explain how to submit complaints about accredited representatives or organizations that exploit or misuse the R&A process
notices. 76 These limited notices would provide information to the public about the R&A program, the requirements for recognition and accreditation, and the approval period of an organization's recognition and the accreditation of its representatives. 77 The notices would also explain how to submit complaints about accredited representatives or organizations that exploit or misuse the R&A process.
76 See Zauderer v. Office of Disciplinary Counsel, Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (stating that required factual disclosures by commercial entities that are reasonably related to a valid government interest do not violate the First Amendment).
77 Commenters have suggested that the recognition and accreditation determination letter include a certificate for office display. The certificate could have the names of the organization and representatives, expiration dates, and information regarding where complaints can be filed against organizations, representatives, or notarios. Additionally, commenters have recommended that photo identification cards or secure badges be required for accredited representatives. The proposed rule does not require issuance of a certificate, secure identity card, or badge. Fully accredited representatives already are required to register through EOIR's eRegistry. See 8 CFR 1292.1. There would be costs to implement any additional requirements and EOIR does not intend to charge a fee to apply for recognition or accreditation or to issue secure identity documents for all representatives. Rather, OLAP may explore less costly options in the future to provide certificates and accreditation cards. See R&A Public Meeting Minutes at 2; R&A Program Comments at 1, 8, 15, 26, 58, 61, 63; AILA Comments at 3.
C
plement any additional requirements and EOIR does not intend to charge a fee to apply for recognition or accreditation or to issue secure identity documents for all representatives. Rather, OLAP may explore less costly options in the future to provide certificates and accreditation cards. See R&A Public Meeting Minutes at 2; R&A Program Comments at 1, 8, 15, 26, 58, 61, 63; AILA Comments at 3.
C. Administrative Termination of Recognition and Accreditation
The proposed rule would replace the current withdrawal-of-recognition process with administrative termination procedures in order to provide a clear and more effective mechanism for OLAP to regulate the R&A roster for administrative, non-disciplinary reasons.
As commenters have noted in public meetings and written comments, the current withdrawal-of-recognition procedures are largely ineffective and have been rarely used. 78 Withdrawal of recognition requires DHS to investigate whether an organization has maintained the qualifications for recognition and to initiate the withdrawal process through a notice to show cause. 79 The process involves a hearing before an immigration judge, 80 who recommends a decision to the Board. The Board may hold oral argument, and it issues the final decision on withdrawal of recognition. The Board has issued one published decision in such proceedings and DHS (and, before it, INS) have rarely sought withdrawal of recognition in the last 20 years. 81 Withdrawal of recognition has proven to be too cumbersome a process to remove an organization from the R&A roster for administrative reasons. The proposed rule would eliminate this process and permit OLAP to terminate and remove organizations and representatives from the roster for administrative reasons when appropriate.
78 See R&A Public Meeting Minutes at 3; R&A Program Comments at 59, 79; AILA Comments at 4.
79 See 8 CFR 1292.2(c)
too cumbersome a process to remove an organization from the R&A roster for administrative reasons. The proposed rule would eliminate this process and permit OLAP to terminate and remove organizations and representatives from the roster for administrative reasons when appropriate.
78 See R&A Public Meeting Minutes at 3; R&A Program Comments at 59, 79; AILA Comments at 4.
79 See 8 CFR 1292.2(c).
80 The current withdrawal-of-recognition regulation, which has not been updated since the creation of DHS, refers to a hearing before a “special inquiry officer.” See 8 CFR 1292.2(c). That term is outdated and refers to the former title of individuals now known as “immigration judges.”
81 See Matter of Baptist Educational Center, 20 I&N Dec. 723, 736 (BIA 1993) (withdrawing an organization's recognition upon finding that the organization was not a non-profit because it was not an entity separate and apart from its accredited representative, who used the organization's recognition to obtain accreditation and receive income for himself).
The proposed rule provides a list of administrative bases for terminating recognition or accreditation. These bases are limited to circumstances within the knowledge of the organization or representative. For instance, an organization's recognition may be administratively terminated because it voluntarily requested termination, because it did not request renewal of recognition, 82 or because its renewal request was disapproved. Recognition of organizations and accreditation of representatives may also be terminated if OLAP notifies the organization or representative of a deficiency affecting eligibility for recognition and accreditation—such as a failure to maintain the qualifications for recognition or accreditation or a failure to comply with the reporting, recordkeeping, and posting requirements—and the organization or representative does not dispute or provide an adequate explanation for the deficiency after being provided an opportunity to do so
entative of a deficiency affecting eligibility for recognition and accreditation—such as a failure to maintain the qualifications for recognition or accreditation or a failure to comply with the reporting, recordkeeping, and posting requirements—and the organization or representative does not dispute or provide an adequate explanation for the deficiency after being provided an opportunity to do so.
82 The proposed rule permits OLAP to grant additional time for an organization to renew its recognition or to accept late-filed renewal requests from organizations.
Upon notice to an organization that its recognition has been terminated, the accreditation of that organization's representatives will automatically be terminated as well, unless those individuals are also accredited through another recognized organization. The termination of a representative's accreditation may result in termination of the recognition of the representative's organization if the organization does not have any other accredited representatives. If that is the case, OLAP, independently or at the request of the organization, in the exercise of discretion, may place the organization on inactive status in lieu of terminating the organization's recognition. Inactive status precludes the organization from providing immigration legal services if it does not have an attorney on staff, but gives the organization a reasonable opportunity to apply for and have approved the accreditation of a new representative without having to request recognition anew.
D. Sanctioning Recognized Organizations and Accredited Representatives
The proposed rule would provide an additional tool for EOIR to regulate the roster of recognized organizations through EOIR's well-established disciplinary procedures at part 1003, subpart G, 8 CFR 1003.101 et seq
ply for and have approved the accreditation of a new representative without having to request recognition anew.
D. Sanctioning Recognized Organizations and Accredited Representatives
The proposed rule would provide an additional tool for EOIR to regulate the roster of recognized organizations through EOIR's well-established disciplinary procedures at part 1003, subpart G, 8 CFR 1003.101 et seq. The disciplinary process is separate and apart from administrative termination, and is directed at removing and potentially barring from the roster organizations and representatives that commit misconduct and act against the public interest.
Currently, only attorneys, representatives, and other practitioners 83 are subject to sanctions for committing misconduct or acting against the public interest. Recognized organizations are subject to withdrawal of recognition, which, as discussed above, is limited to removing organizations for failing to maintain the qualifications for recognition ( e.g., non-profit status and nominal fees for its services). The current regulations do not address circumstances where organizations may submit false information to obtain recognition, abuse their recognized status by affiliating with unscrupulous individuals like notarios, or fail to monitor the provision of services provided by their representatives. The proposed rule extends sanctions to recognized organizations that commit misconduct or act against the public interest.
83 “Other practitioners” includes qualifying law students and law graduates not yet admitted to the bar, reputable individuals, and accredited officials who, like attorneys and accredited representatives, are authorized to represent clients before EOIR and are subject to EOIR's disciplinary procedures and sanctions. Such practitioners are typically authorized to appear in a single case and do not have multiple clients or caseloads like attorneys or accredited representatives.
Building on EOIR's well-established disciplinary procedures in part 1003, et seq
attorneys and accredited representatives, are authorized to represent clients before EOIR and are subject to EOIR's disciplinary procedures and sanctions. Such practitioners are typically authorized to appear in a single case and do not have multiple clients or caseloads like attorneys or accredited representatives.
Building on EOIR's well-established disciplinary procedures in part 1003, et seq. Under the proposed rule, recognized organizations would be subject to the same regulatory procedures for formal disciplinary proceedings as attorneys and accredited representatives, with some exceptions specified below. 84
84 The proposed rule would codify the existing delegation of authority from the EOIR Director to the Chief Administrative Hearing Officer to appoint, upon request of the Chief Immigration Judge, an administrative law judge as adjudicating official in disciplinary proceedings. If neither the Chief Immigration Judge nor the Chief Administrative Hearing Officer appoints an adjudicating official, or in the interest of efficiency, the EOIR Director may appoint an immigration judge or administrative law judge as an adjudicating official for the disciplinary proceedings.
The proposed rule would thus generally amend EOIR's disciplinary procedures so that they apply equally to recognized organizations, accredited representatives, and attorneys. The proposed rule would also add provisions to the disciplinary regulations that apply only to (1) recognized organizations, (2) accredited representatives, or (3) attorneys, accredited representatives, and other practitioners.
1
oposed rule would thus generally amend EOIR's disciplinary procedures so that they apply equally to recognized organizations, accredited representatives, and attorneys. The proposed rule would also add provisions to the disciplinary regulations that apply only to (1) recognized organizations, (2) accredited representatives, or (3) attorneys, accredited representatives, and other practitioners.
1. Grounds and Sanctions Applicable to Recognized Organizations
The proposed rule provides, at 8 CFR 1003.110, a non-exhaustive list of grounds for which it would be in the public interest to impose sanctions against a recognized organization, including: (1) Providing a false statement or misleading information in applying for recognition or accreditation of the organization's representatives; (2) providing false or misleading information to clients or prospective clients regarding the scope of authority or the services provided by the organization or its accredited representatives; (3) failing to adequately supervise accredited representatives; or (4) employing, receiving services from, or affiliating with an individual who performs an activity that constitutes the unauthorized practice of law or immigration fraud. These grounds for disciplinary sanctions ensure that only qualified organizations are recognized and that those organizations are providing competent representation.
While recognized organizations should be able to discern the scope of the rule's expectations with respect to the first, second, and fourth grounds of discipline listed above, a fuller explanation of what is expected of organizations with respect to the failure-to-supervise ground is provided herein. That ground requires that organizations oversee the legal services provided through their accredited representatives and any attorneys on staff
to discern the scope of the rule's expectations with respect to the first, second, and fourth grounds of discipline listed above, a fuller explanation of what is expected of organizations with respect to the failure-to-supervise ground is provided herein. That ground requires that organizations oversee the legal services provided through their accredited representatives and any attorneys on staff. A recognized organization is not required to monitor the day-to-day services provided by its accredited representa

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- [80 FR 926 Federal Employees Health Benefits Program; Rate Setting for Community-Rated Plans](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2014-30633.md)
- [80 FR 1476 Improved Identification Techniques Against Alkali-Silica Reaction Concrete Degradation at Nuclear Power Plants](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00199.md)
- [80 FR 1477 Energy Efficiency Program for Commercial and Industrial Equipment: Energy Conservation Standards for Commercial and Industrial Fans and Blowers](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00234.md)
- [80 FR 1478 Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00263.md)
- [80 FR 1491 Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for 21 Species and Proposed Threatened Status for 2 Species in Guam and the Commonwealth of the Northern Mariana Islands](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00259.md)
- [80 FR 1872 Clarification of Content Eligibility for Standard Mail Marketing Parcels](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00401.md)
- [80 FR 1873 Lead-Based Paint Programs; Amendment to Jurisdiction-Specific Certification and Accreditation Requirements and Renovator Refresher Training Requirements](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00473.md)
- [80 FR 1881 Pacific Island Fisheries; Pacific Remote Islands Marine National Monument Expansion](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00444.md)
- [80 FR 2037 Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00446.md)
- [80 FR 2065 Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00203.md)
- [80 FR 2067 National Emission Standards for Hazardous Air Pollutants: Primary Aluminum Reduction Plants; Extension of Comment Period](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-00461.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-24024. Check the current official text before relying on it. Not legal advice.