Employers narrowly avoided a significant impingement on their right to counsel in immigration matters last month, when U.S. Citizenship and Immigration Services (USCIS) announced and then – after strong objections from the business community – withdrew a new policy that would have directed important case notifications to sponsoring employers rather than their immigration lawyers. USCIS declared it would no longer send original filing receipts, case approval notices and other communications to attorneys of record but instead would send courtesy copies only. This seemingly administrative change – which USCIS appeared to assume would only cause some minor administrative headaches – actually had far-reaching consequences for sponsoring employers, their foreign employees and the attorney-client relationship in immigration matters.
The change took effect without notice in September, when employers with pending immigration sponsorship cases began receiving sensitive case documents that used to go directly to their lawyers. There was no official explanation for the change, and it was first understood to have been a technical error associated with an agency computer system upgrade. Weeks after it took effect, USCIS finally issued a clarification, notifying employers and their counsel that the change was intentional and would be made permanent by regulation in November as part of an overall transformation of agency operations. Little justification for the new policy was given. The agency simply said that it had to make sure that filing receipts and approval notices were actually received by employers and applicants. The agency offered no evidence that documents were routinely being misdirected or misused.
Why was the change so significant? Why would courtesy copies, rather than original notices, not suffice? The answer is simple: original immigration case notices contain information and attachments that are critical to establishing and maintaining a foreign national's lawful immigration status in the United States. For example, approval notices often contain a Form I-94 Arrival-Departure record, the key document that governs the duration and terms of a foreign national’s stay. Foreign nationals are required by law to carry these documents at all times as evidence of their lawful status. By contrast, courtesy copies simply notify recipients of an action on a particular case; they do not serve as proof of lawful immigration status and omit information that may be needed for other parts of the immigration process.
Because original notices are such critical immigration status and application documents, attorneys must review them and provide employers and foreign employees with legal advice and guidance on their use. They must also be checked for accuracy because errors like the wrong immigration category or expiration date or even a misspelled name can have significant – and often negative – consequences for the employing organization and the foreign beneficiary's status. When an important notice goes directly to an immigration petitioner or applicant rather than the attorney of record, USCIS delays the ability of employers and foreign nationals to get crucial information and legal advice. A document that appears to be purely ministerial might be transmitted to a foreign employee without advice on its significance. Sending documents to an employer rather than its immigration counsel also means that they may be misdirected by a mailroom or end up on the desk of an individual who has no idea of their significance. The potential dangers? Missed deadlines, lost documents, detrimental delays in time-sensitive matters.
The policy change was baffling on a number of fronts. First, the practical: Though USCIS saw the change as a way to ensure that key documents land in the right hands, the opposite result was reached. In the first few days of the policy's implementation, employers and their immigration counsel reported numerous problems. But more troubling was the agency's disregard of the right to counsel. USCIS clearly ignored the First Amendment, which guarantees the right to hire and consult an attorney and protects the giving of information to attorneys to enable them to provide informed advice. More baffling was that USCIS also ignored its own regulations, which specify that all notices, with the exception of certain arrest warrants and subpoenas, are to be served on the attorney of record in a case.
After getting an earful from attorneys and their employer-clients, USCIS announced that it was reversing its plans and would resume sending original notices to attorneys of record. The turnabout spoke well of USCIS leadership, which since the arrival of Director Alejandro N. Mayorkas has been making significant efforts to seek out and integrate stakeholder feedback. But unfortunately, the USCIS policy change – however, short-lived – was not the first attempt by the government to impermissibly limit the role of attorneys in immigration matters. In 2008, the Department of Labor aggressively sought to place strict limits on attorneys' ability to counsel their clients on labor certification, a key phase in the path to employment-based permanent residence. In policy documents and in a broad audit of my own law firm's pending cases, DOL took the position that attorneys could play no advisory role in certain required steps in the labor certification process. Eventually, reason prevailed, the audit was stopped and DOL's policy on attorneys was revised, but skepticism of the lawyer's role in the immigration process remains. Employers and their counsel need to be ever-vigilant in the protection of their First Amendment rights.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at firstname.lastname@example.org. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column.