USCIS Amends Policies on Role of Private Attorneys " AILA
Updates to Adjudicators Field Manual are First Significant Changes on Subject in Years
by Greg Siskind O
InfoNet Doc. No. 12011776) addressing various access-to-counsel issues. The changes were the first significant changes to governing this subject in nearly two decades. On May 23, 2012, additional changes were made in response to comments to the earlier interim memorandum (AILA InfoNet Doc. No. 12052940).
n December 21, 2011, US Citizenship and Immigration Services made significant updates to the Adjudicators Field Manual (AFM) (AILA
the following phrase: "An attorney or representative may advise his or her client(s) on points of law.
requested USCIS recognize that an attorney may object to inappropriate lines of questioning, ask clarifying questions, facilitate communication and advise USCIS officers and interviewees on points of law.
• AILA objected permitting officers to pick which submissions from counsel will be included in the record and which will not. AILA urged USCIS to require that all submissions be included in the record.
Many of the changes in the December 2011 update were welcomed by AILA in its February 14, 2012 comment (AILA InfoNet Doc. No. 12021661) on the interim memorandum including the following: • Statement of the beneficiary's right to representation at an interview
• Requiring written waivers when people choose to appear without their attorney
• Attorneys are allowed to sit directly next to the client during the interview
• An easier process for rescheduling interviews
• Establishment of a procedure for clients to change counsel during a proceeding
However, AILA expressed concerns about other aspects of the AFM changes: • Regarding the role of the attorney in the USCIS process, AILA pointed out that USCIS had deleted
• AILA expressed concern about an exception to the rule that attorneys be able to sit next to clients in cases where the physical location of the interview does not accommodate the attorney.
• AILA praised USCIS for establishing a complaint process, but requested that USCIS officers provide information on the complaint process at the beginning of the interview, both orally and in writing.
• AILA expressed concern regarding language in the AFM allowing officers to terminate an interview if an attorney insists on responding to questions or interpreting for a client. AILA suggested clarifying that an interview will not be terminated if the attorney is attempting to facilitate communication during the interview, objecting to inappropriate questions or providing legal analysis.
• AILA advised USCIS to require officers to inform
unrepresented individuals of the right to counsel at the beginning of an interview and offer to reschedule an interview if the individual expresses an interest in hiring counsel.
READ AILA's May 2012 memorandum
• The AFM allows "reputable individuals" to appear on an individual case basis at the request of an applicant. AILA requested that USCIS clarify that an individual may "participate" in the process rather than "appear" as the AFM now states and that officers be required to ask these individuals whether they are being paid, how they know the interviewee, if they've previously participated in a USCIS proceeding and what were the circumstances.
Finally, AILA has asked USCIS to explicitly state that individuals from the same firm or organization be permitted to appear before USCIS and be permitted to use the same G-28 and to provide more information to interviewees on the videotaping of interviews.
In the May 2012 memorandum some changes requested by AILA were incorporated, though most were ignored. In one instance, language has been added stating that an interview can be terminated if the attorney has "exceeded the bounds of zealous representation and interferes with the ability of the officer to conduct the interview.
Greg Siskind practices immigration law in Memphis, TN, and serves on the Board of Governors of AILA.