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Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

 

 

 

 

 

 

New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers

Companies like Avvo are using their marketing platform to provide more opportunities for younger and solo lawyers to gain clients and thus level the playing field.  Avvo Legal Services seeks to disrupt the traditional legal model where a client seeks out a lawyer based on his or her reputation rather than on a web-based network, and the lawyer sets the fee. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence.  The consumer pays $2995 to Avvo directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee.

Under this unique business model, which I have termed as the Uberization of immigration practice in a prior blog,  the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo.  The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. Avvo Legal Service should be distinguished from the “Avvo rating” a lawyer may receive, which is ethically permissible.

The question is whether paying the marketing fee to Avvo is ethically impermissible when an attorney receives a matter through the Avvo legal services platform.  The New York State Bar Association issued Ethics Opinion 1132 holding that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services because the fee includes an improper payment for a recommendation in violation of New York Rule 7.2(a). Under 7.2(a), “a lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client…” At issue for the NYSBA Committee on Professional Ethics was whether the lawyer is paying the fee to obtain marketing and advertising services from Avvo or whether it was giving Avvo something of value to recommend the lawyer to clients. The former scenario would not be a violation of Rule 7.2(a) while the latter would be. The NYSBA, in concluding that paying a marketing fee violated Rule 7.2(a),  analyzed Avvo’s business model in great detail. Avvo gives each lawyer a rating from a scale of 1 to 10. While Avvo never describes a rating as a recommendation, the NYSBA opined that the Avvo website extols the benefits of being able to work with highly-rated lawyers.  While a lawyer is not precluded from advertising bona fide professional ratings generated by third parties in advertisements, Avvo is not a third party, according to the NYSBA,  as it benefits financially if potential clients hire the lawyers rated by Avvo. The NYSBA’s conclusion was bolstered by Avvo’s satisfaction guarantee by which the client is guaranteed a refund of the full amount, even Avvo’s marketing fee, if the client is not satisfied. “This guarantee contributes to the impression that Avvo is ‘recommending’ the lawyers on its service because it stands behind them to the extent of refunding payment if the client is not satisfied,” according to the NYSBA.

While the NYSBA dwelt a lot on what constitutes a recommendation under Rule 7.2(a), it skirted discussing whether the Avvo service would in reality compromise the attorney’s ability to competently represent the client. That analysis is more relevant than whether there was a violation of an archaic advertising rule.  There is a growing recognition that the advertising rules governing lawyers are outdated and need an update in light of the use of social media by attorneys to both market and communicate with clients. Many immigration lawyers, firms, and non-profits providing legal services to indigent clients rely on social media such as LinkedIn, Twitter and Facebook. They use social media not just for advertising but also as part of advocacy efforts to raise awareness on immigration issues. If any message disseminated on social media constitutes an attorney advertisement, it triggers additional requirements that may be impossible to comply with in a social media post. Reform of the advertising rules should focus primarily on lawyer communications that are false or misleading. All other requirements in an advertisement such as requiring the words “Attorney Advertising” and requiring the name, principal law office address and telephone number of the law firm are outdated in an era dominated by tweets.

Rather than focus on the advertising rules that are outdated, including splitting hairs on what constituted a recommendation under Rule 7.2(a), the NYSBA could have opined on other aspects of the Avvo service that limits both the competence and independence of the attorney.

The NYSBA highlighted three salient issues, which it said it was not deciding on:

  • The fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.
  • The marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.
  • Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?  How does Avvo avoid receiving confidential information when evaluating whether to refund the legal fee a client has paid through Avvo?

Even if we leave alone the concerns of fee splitting with a non-lawyer, a “family -based green card” is not like ordering a ride through Uber, where you know that any driver in a functioning vehicle and GPS, will take you to your destination.  But unlike an Uber car ride, there are many traps and pitfalls in family -based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to a US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including claiming to be a US citizen when seeking employment many years ago, that too would throw the Avvo $2,995 family based green card package out of the window. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family -based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. For example, the marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating and allaying the suspicion of malevolent intent by a USCIS examiner that the marriage presently under consideration not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

There are other problematic aspects of immigration legal services provided by Avvo.  It offers a 15-minute immigration advice session for $39. After 15 minutes, the telephone line gets cut off. It is difficult to provide a comprehensive consultation on an immigration law issue in 15 minutes. While the client may have the option of following up with the attorney, the very fact that Avvo suggests that a 15-minute consultation can satisfy the client’s need in a complex area of the law may be misleading. Avvo also provides a service where an attorney will review immigration applications that the client has prepared pro se, but that is fraught with dangers and pitfalls as referenced in the marriage example preceding. 8 CFR 1003.102(t) provides for sanction of an immigration practitioner who fails to submit a Notice of Entry of Appearance as Attorney or Representative who has engaged in practice or preparation. Under the terms of the Avvo arrangement, since the client will be filing pro se after the attorney reviews it, the attorney will not be able to submit a Notice of Appearance if the attorney’s review of the form is considered to be “practice or preparation.” Presumably Avvo, as an intermediary in connecting a potential client to a lawyer and as a non -legal entity, would not be entering a Notice of Appearance.

The NYSBA opinion has been issued by a voluntary organization and is non-binding. To the best of this author’s knowledge, no New York lawyers have been disciplined because they paid a marketing fee to Avvo. Other state bars have also issued opinions,  here, here and here,  that raise concerns about fee splitting. Fee splitting is a concern if it undermines the independence of the lawyer. Avvo says it does not as it is made totally transparent to the consumer of legal services and could be a violation of the First Amendment. The key issue is that a client who uses Avvo Legal Services should be made completely aware of the scope of the services and its variation, which at least in the immigration context, may not be the case. Perhaps, one way to alleviate the concern of a bar association’s professional ethics committee is to make sure that the lawyer and prospective client have a phone call first to discuss the scope of the matter before the client purchases the service on the Avvo platform. If the issues presented by the prospective client are more complex than advertised, then Avvo should provide the ability for the lawyer to modify the fees based on the new scope of representation. As Avvo has pointed out, the NYSBA opinion “actively discourages lawyers from using technology to reach out to clients who see an increasing gap between them and meaningful access to the legal system.”     This may be true, but the consumer must also be made aware whether his or her case fits the service that Avvo markets on behalf of the law. A lawyer may undertake limited representation and unbundle legal services, which Avvo facilitates, but the limitation must be reasonable under the circumstances pursuant to New York Rule 1.2(c). Thus, the 15-minute consultation should probably be extended to at least 30 minutes or even longer. Perhaps, the service promoted by Avvo of reviewing a pro se client’s naturalization or I-130 petition should be halted unless some understanding is reached by the disciplinary counsel in the Department of Homeland Security and the Executive Office for Immigration Review regarding the scope of 8 CFR 1003.102(t).

NYSBA Formal Opinion 1132 against Avvo will not be the last word. The professional ethics committee of the NYSBA too acknowledges that the “lawyers and clients who are using Avvo Legal Services suggest that the company fills a need that more traditional methods of marketing and providing legal services are not meeting” and “[f]uture changes to Avvo’s mode of operations – or future changes to the Rules of Professional Conduct – could lead us to alter our conclusion.” For now, at least, lawyers who choose to pay a marketing fee to Avvo after they connect with a client through its platform do so at their own peril. Avvo, though, has promised to defend these lawyers if disciplinary action is taken against them.