Copland and Brenner

Table of Contents

1. USCIS Advances Data Collection, E-Filing Efforts
2. US-VISIT Reaches Land Border Milestone
3. House Approves Restrictionist Legislation, Senate Action Awaited

1. USCIS Advances Data Collection, E-Filing Efforts

   With the publication of three notices in the Federal Register on December 29, 2005, U.S. Citizenship and Immigration Services (“USCIS”) indicated its intention to develop individualized accounts for a variety of “customers,” including individuals, representatives, employers and “certifiers.” In each of the notices, USCIS states that it “is planning a broad restructuring of its business processes to move from an exclusively transaction based focus to customer accounts. Account management will permit USCIS to streamline benefits processing and eliminate the capture and processing of redundant data.”
   
   The notices go on to say that, “In some respects the account focus represents more comprehensive information than USCIS has previously collected at one time. However, an account focus eliminates redundancy in that customers will not have to give the same information repeatedly. In addition, in many respects the account represents less total information than is cumulatively collected today as customers file various applications in their lifecycle with USCIS. But the American public expects USCIS to ask what it needs to know and to link that data with biometrics in order to deter and detect fraud, and thereby reduce national security risks. Moreover, the account system allows USCIS to avoid burdening the customer with repeated requests for the same information. It allows for address changes to be made by individuals, employers, and representatives one time in one place for all purposes, solving a huge customer and administrative burden to date. This account system finds the common ground between USCIS objectives and customer service, national security, and administrative efficiency. USCIS will be promulgating a rulemaking in the near future.”
   
   At this writing, the rulemaking has not yet been published, but some draft forms and instructions may be viewed online at http://uscis.gov/graphics/formsfee/forms/pra/index.htm. In the lexicon of new USCIS e-filing databases, individuals will establish “i-accounts,” representatives will establish “r-accounts,” employers will have “e-accounts” and certifiers “c-accounts.” In the process, the agency is forging ahead in a manner that will revolutionize data collection, retention and access, making life both simpler and a bit more invasive – with potentially severe negative consequences to unsuspecting petitioners and applicants.
   
   i-account: Once the new processes are in place, an individual who wants to file an application for him- or herself, or a person seeking to file a petition on behalf of another person, must establish an “i-account” by filing USCIS Form 1. Some exceptions will apply, including those for certain nonimmigrants who are outside the U.S.A. and have been in the U.S.A. for less than 365 days in the past five years, and permanent residents who seek only “permanent resident services.” However, an i-account will be required for any lawful permanent resident who seeks to naturalize. If established from outside the U.S.A. an i-account will cost $30; the cost when established within the U.S.A. will be $100, as the agency will schedule a biometrics appointment (a $70 cost) and conduct background checks. An i-account established within the U.S.A. must be opened on the USCIS web site, and any applications must be e-filed. Persons outside the U.S.A. must follow instructions that will be provided on the agency’s web site.

   Comprehensive information regarding education and employment history, as well as family member information is required. In addition, any person creating an i-account, unless he or she is a U.S. citizen, must provide detailed information regarding all arrests, charges or convictions. An exception exists where the only penalty was a fine of less than $500 and/or points on the person’s driver license. In addition, an individual must submit certified disposition records, and the form warns that “Your account is not complete, and no benefit can be provided, unless you submit disposition records for each incident or prove they are unavailable.”

   Moreover, 33 additional questions, titled “Conduct and Intentions,” each relating to a ground of visa ineligibility, require “yes” or “no” answers unless the i-account registrant is a U.S. citizen. An explanation and documentation are required for each “yes” answer. The form warns that, “If you are an alien and you answered YES, you may be inadmissible and removable from the U.S. However, see the instructions to see if you could file a waiver application along with any application for a benefit or service.”

   An i-account may be prepared by the individual, by an attorney or BIA authorized representative with an established r-account, or by another person who is neither an attorney nor an authorized representative. If prepared by an individual lacking an r-account, detailed information regarding the preparer is required. A declaration must be signed and dated by any preparer, and the individual applicant must agree to disclosure of his/her records to any designated representative. The form states that if the applicant or petitioner wishes to continue such authorization to an application, separate authorization is required to continue representation on that application (more on representation below).

   e-account: As noted above, any person or entity seeking to sponsor a person for U.S. immigration benefits must register an account with USCIS. In the case of an employer, it is an “e-account” that must be established. There are two employer options; one for an individual as employer, which requires filing of USCIS Form 2, and one for a company or organization, which requires USCIS Form 2A. In any case, gross and net income must be provided, as reported for the most recent tax year with the Internal Revenue Service. The form for companies and organizations requires extensive detail concerning ownership and other matters. Further, if any filings will be for the “E” or “L” nonimmigrant classifications or the “E13” immigrant classification for multinational executives or managers, information regarding parents, subsidiaries, affiliates and joint ventures is also required.

   r-account: Every attorney or accredited representative seeking to represent any petitioner or applicant before USCIS will be required to register an “r-account” with the agency by filing USCIS Form 3. Depending on one’s perspective, the benefit - or flaw - in the system established by USCIS is that, once an attorney or accredited representative completes the “preparer section” of “an account, application, petition, or other form,” the “r-account eliminates the need [ ] to submit a separate notice of appearance in each case.”

   In addition, and significantly, “ [c ]lients may self-report representation or changes in representation .” The r-account form advises that, “ If your client initially records your entry of appearance in an account, application, or petition, or later updates their account, application, or petition to enter your representation, USCIS will notify you that you have been added as a representative, and give you an opportunity to confirm the representation. Failure to timely respond in accordance with the instructions on such notice constitutes acceptance of the representation .” (emphasis added)

   This means that someone who is not in fact a client – even someone who has never communicated at all with an attorney - can self-register any attorney as his or her legal representative, without any prior knowledge of the attorney . Even if an attorney timely and successfully “withdraws” from representation that was never agreed to, there is nothing in the draft forms or instructions that would appear to preclude an individual from simply re-registering the attorney as his or her representative. To prevent abuse by non-clients, it is critical that all r-account information be kept up to date, as failure to do so may result in non-receipt of notices regarding one’s r-account as well as client and non-client cases.
   
   For many reasons, the “client”-reported registration of an attorney or accredited representative is a critical flaw in the scheme presented by USCIS. Various ethical responsibilities – not least important, the potential for conflict of interest, may be compromised under the USCIS scheme. Moreover, the scheme is potentially in violation of state bar rules concerning attorneys. For example, since March 4, 2002, New York State Office of Court Administration requires lawyers to provide many clients with a “letter of engagement” to ensure that there is a memorialized meeting of the minds with regard to the basic terms of the engagement. Among other things, such a letter must explain the scope of legal services to be performed and the fees and expenses to be charged . Obviously, unless an attorney has agreed to represent a client, there has been no meeting of the minds.
   
   According to the New York State Bar Association, an attorney “is under no obligation to act as advisor or advocate for every person who may with to become a client.” No attorney or accredited representative should be subjected to unilateral “appointment” in any immigration matter unless agreed to by all parties in advance of any notice of appearance being filed with any tribunal .

   USCIS efforts to create individual accounts for each petitioner, applicant and representative are barely in their infancy. There can be no doubt that much more will follow. Hopefully, developments will include efforts by American Immigration Lawyers Association, the American Bar Association and other professional organizations to eliminate the “client-appointed counsel” scheme envisioned by USCIS.

2. US-VISIT Reaches Land Border Milestone

   On December 30, 2005, the Department of Homeland Security (“DHS”) announced that it had met its Congressional mandate to implement US-VISIT at all 154 U.S. land ports of entry – one day ahead of the deadline. Under US-VISIT, many foreign travelers seeking admission to the U.S.A. have their two index fingers scanned and a digital photograph taken to match and authenticate their travel documents at the port of entry. For many, US-VISIT actually begins prior overseas, at a U.S. consulate, where a visa applicant’s biometrics (digital fingerscans and photographs) are collected and checked against a database of known criminals and suspected terrorists. When the person arrives at the port of entry, U.S. Customs and Border Protection uses the same biometrics to verify that the person at the port of entry is the same person who received the visa.
   
   However, the program is still the subject of much criticism, in part because of vast exceptions to mandated participation. U.S. citizens are exempt, as are most Canadian citizens. Persons under the age of 14 or over age 79 are exempt, as is anyone traveling on an A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visa. Most Mexican citizens who travel to and from the United States regularly, and who use a multi-use travel document, B1/B2 visa/Border Crossing Card, for trips of 30 days or fewer within the “border zone,” are also exempt.

   A December 30 New York Times article notes that, even with US-VISIT in effect at all 115 U.S. airports and 15 sea ports of entry handling international travelers, only 42 percent of travelers are subject to the program. At the 154 land ports of entry now participating, a lowly two percent of travelers are required to participate. Needless to say, the exceptions carved out for citizens of Canada and Mexico alone present a gaping hole in the purported “border security system” to which US-VISIT aspires.

3. House Approves Restrictionist Legislation, Senate Action AwaitedNot unexpectedly, the House of Representatives on December 16 voted in favor of H.R. 4437, the punishing bill sponsored by James Sensenbrenner (R-WI). The vote was 239 to 182. As described by AILA, the bill “is a disappointing, disastrous measure for both immigrants and U.S. citizens alike, and AILA will be working closely with the Senate, once Congress reconvenes in January, to craft a reasoned and sensible approach to fixing our broken immigration system.” (AILA InfoNet Doc. No. 05121611; Dec. 16, 2005). We look forward to informing readers of developments once they occur.