BIA Recognition and Accreditation

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Toolkit for BIA Recognition & Accreditation

 

Does your nonprofit agency want to develop a legal immigration program, but lack attorneys on staff or the money to hire them?

Does your nonprofit agency want to continue providing legal immigration services, but avoid engaging in the unauthorized practice of law? 

Does your nonprofit agency have immigration attorneys on staff, but want to expand its capacity by getting authorization for non-attorney staff to practice immigration law?

In these situations, your agency needs to seek recognition for itself and accreditation for its non-attorney staff from the Board of Immigration Appeals (BIA).  BIA recognition and accreditation is the Department of Justice’s certification of charitable immigration agencies and staff, and allows non-attorney staff to practice immigration law before the U.S. Citizenship and Immigration Services (USCIS) and the immigration courts. 

The rules governing recognition and accreditation can be found at 8 CFR Section 292.2.

However, the regulations are brief and do not address some of the challenges in compiling the BIA recognition and accreditation application. 

This toolkit is designed to educate agencies on the need for BIA recognition and accreditation and to assist them in the application process.  It is divided into four sections:

  • Section One provides background information about the importance of BIA recognition and accreditation. 
  • Section Two takes you through the steps needed to prepare for and compile the application. 
  • Section Three provides guidelines on the professional code of conduct for BIA accredited representatives and information on how to protect your agency from liability.
  • Section Four focuses on the widespread problem of immigration fraud and provides resources for educating the immigrant community.   


CLINIC welcomes your feedback on this toolkit, including suggestions for additional materials to include.  If you have any feedback or questions, please contact Laura Burdick at lburdick@cliniclegal.org.

 

1.  GENERAL INFORMATION

EOIR Main Page on the Recognition & Accreditation Program

New “BIA Issues Three Decisions on Recognition and Accreditation” – CLINIC news article

New BIA Precedent Decision, Matter of United Farm Workers Foundation (2014)

New BIA Precedent Decision, Matter of Ayuda (2014)

Update on New BIA Regulations

CLINIC webinar, “All About BIA Recognition and Accreditation”

Board of Immigration Appeals FAQ Sheet on the Recognition and Accreditation Program

"BIA Releases New FAQ Sheet on Recognition and Accreditation" - CLINIC news article

BIA Precedent Decision, Matter of Central California Legal Services, Inc. (2013)

“BIA Addresses Training Requirements for Accredited Representatives” – CLINIC news article

"BIA Issues Two Decisions on Recognition and Accreditation" - CLINIC news article

Form G-28: Notice of Entry of Appearance as Attorney or Representative

 

2. PREPARATION: SETTING AN ACTION PLAN, ACQUIRING ESSENTIAL TRAINING, AND COMPILING THE APPLICATION

Step-by-Step Guide for BIA Accreditation and Recognition - World Relief and CLINIC

Form EOIR-31, Request for Recognition of a Non-Profit Religious, Charitable, Social Service, or Similar Organization

NEW Form EOIR-31A, Request by Organization for Accreditation of Non-Attorney Representative

Checklist for BIA Recognition and Accreditation Process

Action Plan for Applying for BIA Recognition and Accreditation

CLINIC Training Calendar

Self-Directed E-Learning Course on Fundamentals of Immigration Law

Immigration Advocates Network (IAN) Training Calendar

Immigration Law Library Resources

Sample Application for BIA Agency Recognition and Staff Accreditation: See page 16 of Step-by-Step Guide

Sample Application Cover Letter for BIA Staff Accreditation: See page 20 of Step-by-Step Guide

 

3. CONSIDERATIONS FOR PRACTICE AFTER BIA ACCREDITATION

EOIR Fact Sheet on Professional Conduct Rules for Immigration Attorneys and Representatives

CLINIC's Core Standards for Charitable Immigration Programs

Model Code of Professional Responsibility for BIA Accredited Representatives

Prohibition Against Providing Legal Services Outside the Office & Expectations of Employees

Applying for Renewal of Agency Staff/Volunteer Accreditation: See page 14 of Step-by-Step Guide

Immigration Advocates Network manual, "Notario Fraud Remedies: A Practice Manual for Immigration Practioners"

 

4. IMMIGRANT COMMUNITY EDUCATION MATERIALS

How to Tell if an Agency is Recognized:

EOIR List of Currently Disciplined Practitioners

Outreach Flyers:

American Bar Association (ABA) Campaign to Fight Notario Fraud

USCIS Information on Finding Legal Advice

USCIS Outreach Materials

Federal Trade Commission Resources

Resources by type: 

EOIR Proposed Changes to Agency Recognition & Staff Accreditation

Jeff Chenoweth

The Executive Office for Immigration Review (EOIR) has proposed significant changes in the standards and procedure for obtaining agency recognition and staff accreditation (R&A) from the Board of Immigration Appeals (BIA). The agency placed the proposed rule on its website at http://www.justice.gov/eoir/notice-eoir-publishes-rules. Comments to EOIR are due on November 17, 2015.  CLINIC has analyzed the proposed changes and will be circulating model comments before submitting its comments to EOIR.  The following is a summary of the proposed changes.

EOIR asserts that the purpose of the proposed changes 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.” Tightening the eligibility standards and augmenting the application process will purportedly decrease the likelihood of the public being victimized by fraud or incompetence at the hands of unscrupulous practitioners. If implemented as written, however, the proposed changes would likely result in at least a temporary decrease in the number of agencies and staff currently listed on the roster based on agencies’ inactivity in immigration legal representation or inability to quickly meet the new R&A standards.

Transfer from BIA to OLAP

Administration of the R&A program would stay within EOIR but be transferred from the BIA to the Office of Legal Access Programs (OLAP).  OLAP was formerly called the BIA Pro Bono Project, which was established in 2000.  Its mission is to “improve access to legal information and counseling and increase rates of representation for persons appearing before the immigration court and the Board.” It has overseen the legal orientation programs (LOP) and has facilitated access to pro bono representation and self-help materials to persons in immigration proceedings. OLAP would be given authority to approve and disapprove requests for R&A, maintain the roster of recognized agencies and accredited staff, and terminate an agency or staff person’s recognition or accredited representative status.

Agency Recognition Qualifications

The current requirements for agency recognition are that the organization be: (1) a nonprofit religious, charitable, social service, or similar organization established in the United States; (2) charge only “nominal fees” and assess no membership dues for its services; and (3) possess adequate knowledge, information, and experience.

The proposed rule would add that the nonprofit agency have federal tax-exempt status. If the agency has not obtained that status at the time of seeking recognition, it may submit proof that it has applied for it. It might then be granted “conditional recognition” for a three-year period.  It would need to have obtained tax-exempt status in order to renew it recognition.

It replaces the nominal fee requirement with a more flexible analysis that looks more to the agency’s other sources of revenue and balances those against the income it receives from client fees.  It would require the agency to demonstrate that a “substantial amount” of its legal services budget comes from sources other than client fees, donations, and membership dues. Agencies would be requested to submit at least the prior year’s budget, the current year’s if available, or a projected budget if neither past nor current are available.  The purpose is so that OLAP can see all revenue sources, including grants and in-kind donations, including volunteer services. The greater the amount of funding derived from client fees, the more likelihood the agency would fail the “substantial amount” test. OLAP is authorized to grant waivers of the substantial amount requirement if the agency meets a “public interest” test, which would look to whether the agency operates in an underserved area or serves vulnerable or economically disadvantaged persons (e.g., mentally incompetent persons, unaccompanied minors, or VAWA applicants).

The rule bolsters the evidence needed to establish that the agency primarily serves low income and indigent clients. In order to receive and maintain recognized status, an agency would have to have at least one accredited representative on staff, although the agency may still apply for recognized status concurrently with staff accreditation.

Finally, the rule would identify the proof required for the agency to show it has “adequate knowledge, information, and experience.” The agency would need to describe “the services it intends to offer; the legal services to which it has access; staff 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.”

Staff Accreditation Qualifications

The regulation would change the current requirement that the staff member possess “good moral character” to the more general requirement of “character and fitness.” This will necessitate a more comprehensive examination of the applicant’s “honesty, trustworthiness, diligence, professionalism, and reliability.” This in turn may require submission of a criminal background check and letters of recommendation.  No application will be approved if the staff member has been convicted of a serious crime, either in the United States or abroad. The applicant’s current immigration status will also be considered with the final regulations and possibly contain a requirement that noncitizens possess employment authorization and not be in immigration proceedings.

Applicants for accreditation must currently describe the nature and extent of their experience and knowledge of immigration law.  The proposed regulation would require them to possess “broad knowledge and adequate experience in immigration law and procedure.” This is not a change in the requirements.  Rather, EOIR is seeking more specificity about the applicant’s knowledge and experience.  The rule does not establish any minimum number of hours of training or describe the types of courses that should be attended. OLAP wishes to maintain flexibility in deciding whether the applicant has satisfied this requirement, though it may in the future develop “best practice” guidelines that set forth recommended education, trainings, internships, and testing.

Application Procedures

Proposed changes to the application process for initial or renewal R&A include the following:

  • Applications for staff accreditation will need to be filed on Form EOIR-31A
  • Applicants for R&A are no longer required to serve a copy of their applications to ICE but EOIR may seek ICE’s input if needed
  • Applicants for R&A must serve a copy of their application on the USCIS district office where the representatives offer or intend to offer services, and not just where the organization is located
  • OLAP may seek additional information regarding the agency or the staff member from third parties and new sources
  • Agencies with multiple offices would no longer have to submit separate applications for recognition of each physical office, but rather can request that OLAP extend the agency recognition to include a new office or location
  • Agencies will need to renew their recognition status every three years (except for those granted conditional recognition, in which case they must seek its first renewal after two years)
  • To renew agency recognition, the agency must also simultaneously have one of its staff receive accreditation either for renewal or as a first-time application
  • Applications for renewal of agency recognition must be filed on Form EOIR-31 and include documentary evidence that it meets the qualifications, including fee schedules, annual budgets, and reports
  • Applications for renewal of staff accreditation must be filed on Form EOIR 31A and contain evidence that the staff member has received formal training in immigration law and procedure commensurate with the services the agency provides
  • Staff will also be accredited for the same period as the agency, and will need to renew accreditation at the same time the agency seeks renewal of recognition status (i.e., accreditation will not exist independent of agency recognition)
  • New reporting and recordkeeping requirements are intended to provide OLAP with a means to monitor compliance with the R&A requirements.

The proposed procedural changes would be phased in for currently recognized agencies and accredited staff members.  Those agencies that have been recognized the longest would be required to renew their status earlier than those who obtained it more recently.

The proposed regulations also contain procedures for administratively terminating R&A and sanctioning agencies and staff. It would create a uniform disciplinary process for attorneys, accredited representatives, other practitioners, and agencies.

Resources by type: 

Webinar: Proposed Rule from the BIA on Recognition and Accreditation, Two Final Rules Concerning Legal Representation

On September 17, the the Executive Office for Immigration Review (EOIR) announced a new, proposed rule governing recognition and accreditation. When finalized, date yet unknown, the new rule will have a significant impact on the charitable immigration legal field. Don’t miss this opportunity to see the future of your profession and learn how to become involved in CLINIC’s advocacy efforts to make recognition and accreditation benefit low-income immigrants seeking your services.

Hear CLINIC staff present each proposed change and explain the implications for nonprofit organizations. We will take questions and solicit ideas for advocacy efforts.

The webinar will end by explaining two final rules the EOIR released on September 17 concerning the BIA list of pro bono legal service providers for immigrants in immigration proceedings and how appearances for legal representation for custody and bond proceedings can be separated from all proceedings.

NOTE: COMMENTS ARE DUE TO EOIR BY NOVEMBER 30, 2015

Read the 10/1/15 Federal Register announcement on the proposed rule.

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Retroactive Adoption Decrees Open Up Possibilities

Charles Wheeler

The BIA has held that an adoption is valid for immigration purposes – even if the child has turned 16 at the time of the final order – if the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015). The BIA held that since the effective date of the adoption decree was made retroactive to the date the petition was filed, when the child was under 16, that the adoption will be valid for immigration purposes.

In this case, the adoptive parents filed a petition to adopt a child when she was two months short of her sixteenth birthday.  When the court issued the final decree, she had already turned 16.  But the decree was made retroactive to the date it was filed when the child was under 16. In order for an adoption to be valid for immigration purposes, it must be finalized while the child was “under the age of sixteen.” INA § 101(b)(1)(E)(i); 8 CFR § 204.2(d)(2)(vii). If the BIA applied a literal interpretation of the statutory words, it would use the child’s biological age on the date of the final decree; if it applied a broader definition, it would apply her adjusted age on the retroactive date of the final decree.

The BIA decided to abandon its prior holdings on this issue and adopt a more expansive reading of the age requirement. It held that “we will no longer deny a visa petition where the adoption petition was filed before the beneficiary’s 16th birthday, the state in which the adoption was entered expressly permits an adoption decree to be entered retroactively, and the State entered such a decree consistent with that authority.” The BIA’s new interpretation opens up possibilities in those states that allow for nunc-pro-tunc or retroactive back-dating of the final adoption decree, provided the process was initiated before the child turned 16.

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BIA Explains Implications of Matter of United Farm Workers Foundation

By Laura Burdick

In a March 20, 2015 conference call with community-based organizations, the Board of Immigration Appeals (BIA) answered some questions about the implications of Matter of United Farm Workers Foundation, its recent decision that agency staff members who are accredited at one recognized location of an agency are authorized to practice at any other recognized location of the same agency.  Under this decision, organizations no longer need to file a separate application for accreditation at each recognized location where a staff person will be providing legal services. They only need to inform that BIA in a letter (with proof of service to their USCIS District Director and ICE Chief Counsel) that the staff person will be practicing at additional recognized locations, and ask the BIA to add the person’s name to the roster at the other locations. 

 

Accreditation Expiration Dates

The BIA explained that it will apply the same accreditation expiration date to all locations where the staff person will be working.  In cases where the staff person has different expiration dates for accreditation at different locations, the BIA will apply the earliest expiration date to all locations.  This means that agencies with staff members accredited in more than one office location will need to apply for renewal of their accreditation by the earliest expiration date.

 

Concurrent Filing for Recognition and Accreditation

Prior to Matter of United Farm Workers Foundation, an application for agency recognition had to be accompanied by an application for staff accreditation, unless the agency had an attorney on staff.  However, the BIA explained that in cases where an organization already has a recognized location with accredited staff at that location and is applying for recognition of a new location, the organization may apply for only recognition if it plans to use the existing accredited staff at the new location.  In this situation, the organization should inform the BIA in its cover letter that the existing accredited staff member will be working at the new location and attach a copy of his/her grant of accreditation; the organization does not need to file concurrently for recognition and accreditation. 

CLINIC affiliates with questions about their BIA application or staff accreditation expiration dates may contact their Field Support Coordinator for assistance.

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BIA Issues Two Decisions on Recognition and Accreditation (2008)

By Jennie Guilfoyle

On July 3, 2008, the Board of Immigration Appeals (BIA) issued two precedent decisions on recognition and accreditation: Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), Interim Decision 3614, and Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), Interim Decision 3615. These represent a significant addition to the case law on recognition and accreditation. Prior to this, there were only five published decisions on this subject. The new decisions add more specifics to the Board's requirements for recognition and accreditation – most importantly seeming to create a requirement for technical support by an attorney or fully accredited representative – while leaving unanswered the important question of what constitutes a "nominal" fee.

Interim Decision 3614 ("EAC decision 3614") requires recognized agencies to have access to the expertise of an immigration attorney or fully accredited representative, who may either work for the agency or agree to a consulting relationship with the agency. The decision also eases requirements for immigration library materials, noting that Internet access is sufficient. The two decisions require that partially accredited representatives must have "broad" knowledge of immigration law, sufficient to recognize issues they are not equipped to handle themselves, as well as access to expert support. Further, an agency staffed only by partially accredited representatives must have a plan to refer clients it cannot help.

Technical Legal Support. EAC decision 3614 lays out a requirement – never before articulated in a precedent decision – for technical legal support by an attorney or fully accredited representative.  In order for the Board to consider that an agency has "at its disposal adequate knowledge...and experience," it must have one of the following: (1) an immigration attorney or fully accredited representative on staff; (2) an off-site immigration attorney or fully accredited representative who provides consultation (whether on a pro bono or paid basis); or (3) a partially accredited representative with "access to additional expertise" – the expertise of an outside immigration attorney or fully accredited representative. The access need not be in person; it may be by telephone or Internet.

CLINIC affiliates and subscribers, and affiliates of other national networks with attorneys who provide technical support, such as the Lutheran Immigrant and Refugee Service, the International Rescue Committee, and programs serving survivors of domestic violence with funding from the Office of Violence Against Women should be able to meet this requirement.  The Board has already recognized many agencies that are part of such networks and have only partially accredited representatives on staff; and apparently it will continue to do so. On the other hand, stand-alone programs without such attorney technical support will not, it appears, be granted recognition.

The Board also makes clear in the EAC recognition decision that agencies may not be recognized without at least a partially accredited representative with access to technical support on staff.  Agencies may apply concurrently for recognition and staff accreditation, but agencies without attorneys on staff should not apply solely for recognition. In the past, agencies hav applied for recognition and later for partial accreditation of staff members, but this is no longer possible for agencies without attorneys on staff.

Library Resources.  The Board notes that agencies are required at a minimum to have access to up-to-date copies of the Immigration and Nationality Act, the federal immigration regulations (8 CFR), as well as the Board's precedent decisions. Acknowledging that "access to adequate information may now be shown via electronic or Internet access to immigration legal resources," the Board indicates that internet access will now satisfy the library requirement.  The Board notes with approval the specific websites EAC had listed in its application; other applicants would be well served by listing the immigration websites it relies on.

While the decision implies that Internet access alone should be sufficient for the Board to grant recognition, CLINIC strongly recommends that agencies regularly purchase at least one general treatise on immigration law, such as Kurzban's Immigration Law Sourcebook, as well as treatises on the agency's specific area(s) of representation, such as family-based immigration and naturalization. CLINIC also recommends annually buying bound copies of the Immigration and Nationality Act and 8 CFR whenever possible, as hard copies are much easier to read and use.

"Full Range of Services." In the past few years the Board has denied recognition to a number of agencies for failing to provide a "full range of services," including removal defense. EAC decision 3614 appears to address this issue, acknowledging that recognized agencies may in fact provide a limited menu of immigration legal services. The Board notes, however, that in such cases agencies must be able to "discern" when clients need more help than an agency can provide, and must have a plan to refer such clients elsewhere.

Purpose of Recognition. EAC Decision 3614 also discusses the purpose of recognition and accreditation: to provide competent immigration legal help to low-income immigrants. The Board notes that it will only recognize agencies that provide direct immigration representation to individuals; it will not recognize agencies that merely provide "aid, education, and other services" to immigrants. In both decisions, the Board appears to want to ensure that recognized agencies provide "knowledgeable" representation.

Documenting the Recognition Application. In EAC Decision 3614, the Board specifies certain documents that it will look for in recognition applications. These are:

  1. Library resources. This requirement may be satisfied through Internet access. If you access the INA and 8 CFR through the Internet, make sure to clearly state that in your application. List other immigration-related websites you use. One useful website to list is the Immigration Advocates Network, www.immigrationadvocates.org, a free resource for nonprofit immigration legal providers.
  2. List of Services. The Board wants to see "a description of the specific immigration legal services [an agency] will provide." Programs that charge fees must submit a list of fees for each immigration service they provide; such a list should suffice for this requirement.
  3. Staff List. Provide a list of all local staff, along with a resume for any immigration attorney(s) on staff.
  4. Evidence of Arrangement with Outside Expert. An agency that will rely on an attorney or fully accredited representative who is not on staff for expertise will need to provide evidence of that arrangement.

 

An agency with a formal consultation agreement with an outside attorney should provide evidence of that agreement (via a letter or contract), along with the resume of the attorney.

An agency without attorney or fully accredited staff that is applying for partial accreditation for an employee must submit evidence that that employee will have access to an immigration attorney or fully accredited representative.  For CLINIC members and subscribers, this would be a letter from a CLINIC attorney describing the many forms of support CLINIC provides to its members and subscribers (e.g., trainings, webinars, and individual consultations via the attorney- of-the-day hotline).

Partial Accreditation. The Matter of EAC, Inc. decision on partial accreditation ("EAC decision 3615") sets forth a knowledge standard for partial accreditation: partially accredited representatives, even at agencies that provide limited services, must have a "broad knowledge of immigration law and procedure."  They must know enough about immigration law to discern when immigrants have complex issues they are not themselves equipped to handle so that they may refer such immigrants to other providers.

The decision details the sorts of documentation that help it determine whether an individual has the broad knowledge and/or experience in immigration law required for accreditation. These include a detailed resume, letter(s) of recommendation, and evidence of training. The training evidence should include a detailed description of what topics were covered.

The decision makes clear that extensive experience with immigration practice is not required where a candidate for accreditation has had sufficient training: "a proposed representative's experience with immigration law need not be fully commensurate with his or her knowledge to be considered adequate."  The Board has in the past granted partial accreditation to many people who gained their knowledge of immigration law through trainings, and this decision does not indicate that that will change.

While the decision does not specify how much training or experience are required for partial accreditation, the Board does note that the EAC candidate had worked under the supervision of immigration attorneys "since 1986" and had attended ten trainings at the New York Immigration Coalition within the past two years. Since those trainings are generally two to three hours long, that means about 25 hours' worth of training. This does not mean, however, that someone with, say, less extensive practical experience cannot be granted accreditation.

Full Accreditation. The EAC decisions make clear that the Board expects a lot from fully accredited representatives. Fully accredited representatives must be able to: advocate a client's position at a hearing in front of an Immigration Judge; present documentary evidence; conduct questioning of witnesses; prepare motions and briefs; and present oral arguments before the Board. This is a high standard (there are quite a few immigration attorneys who do not meet it).

Accreditation at Multiple Sites.  The decision reverses Board practice in the area of accreditation of staff at agencies with multiple locations. Formerly, it was enough to be accredited at one of an agency's several recognized sites in order to work under the accreditation privilege at any of the agency's recognized sites. Not any more. Now each staff member must be accredited at each site where he or she seeks to work as an accredited representative.

Summary. The two EAC decisions make more explicit the kind of immigration legal expertise the Board looks for from recognized agencies and accredited representatives. Most importantly, they require that agencies, in order to be recognized, have access to the support of an attorney or fully accredited representative.  While agencies may provide a limited range of services through partially accredited representatives, such agencies must have the support of an attorney or fully accredited representative, must be able to recognize issues they are not equipped to handle, and have a referral plan for complex cases.  The decisions leave unanswered, however, the important question of what constitute "nominal" fees, and what percentage of an agency's budget may be composed of fees for immigration services.

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BIA Releases New FAQ Sheet on Recognition and Accreditation (2013)

The BIA recently released a new FAQ sheet on the recognition and accreditation program, which is available here. This 27-page document addresses 91 questions and is divided into three sections on general information, recognition, and accreditation. This is an excellent new resource for programs seeking to apply for agency recognition and/or staff accreditation for the first time, add a recognized office location with accredited staff, or renew staff accreditation.  In this FAQ sheet, the BIA provides clarification and additional information on several aspects of the application:

  • On page 6, question R6 addresses the issue of how to demonstrate that an agency charges nominal fees.  In addition to the fee schedule, the BIA suggests including information on the agency’s fee waiver policies (when and for which applications the agency will waive its fees); any reduction in agency fees for additional family members or limit on the total charge per family; and what is included in the agency fee (USCIS filing fee, representation at the interview, document translation, etc.). The BIA states that it is helpful to provide as much information as possible.
  • In question R14 on page 9, the BIA states that any agreements with another organization or local immigration attorney for consultations and technical legal support should identify any fees charged for the assistance.
  • On page 9, question R16, the BIA discusses law library resources and states that an organization should have immediate access to basic resources such as the Immigration and Nationality Act, Title 8 of the Code of Federal Regulations, and BIA precedent decisions.  (Note: BIA precedent decisions are available through the EOIR Virtual Law Library.)
  • In question R30 on page 12, the BIA recommends separating concurrently filed applications. When an agency files for agency recognition and staff accreditation at the same time, the two applications should be submitted as two separate packets. Any materials that are needed for both packets should be photocopied.  Similarly, if more than one staff member is applying for accreditation, the BIA prefers a separate application packet for each person.
  • The BIA discusses training requirements on page 18, question A7 and requests a resume of the trainer or mentor who helped the applicant prepare for accreditation. Since the trainer or mentor often provides a letter of recommendation, CLINIC recommends simply including information about his/her background and qualifications in the letter.
  • On page 20, question A12 addresses trainings needed for accreditation.  The BIA states that core training includes training on employment-based and diversity immigrant visas, as well as an overview of the immigration system in the United States. At a minimum, CLINIC recommends that applicants take its new self-directed e-learning course on the fundamentals of immigration law, since the course provides a broad overview. This course is available at http://cliniclegal.org/self-directed.
  • In question A19 on page 21, the BIA discusses supporting documentation needed in the request to renew accreditation, and recommends including a copy of its last decision approving accreditation.

 

 

This new FAQ sheet has been added to CLINIC's BIA Toolkit on our website. CLINIC is in the process of updating the BIA toolkit to reflect this and other new information.

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BIA Addresses Training Requirements for Accredited Representatives (2013)

When does a legal worker have enough knowledge and experience in immigration law to qualify for accredited representative status? If you have listened to some webinars on immigration law topics, worked on cases under the supervision of an attorney or accredited staff, and perhaps attended a specialized training on citizenship or VAWA, is that enough? According to a new BIA decision, the answer is "no." A recognized agency's application for initial accreditation for a program staff member must show that the candidate recently completed at least one formal training course designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure. Matter of Central California Legal Services, Inc., 26 I & N Dec. 105 (BIA 2013).

The case before the Board concerned a candidate for accredited representative status who had represented clients in immigration matters for several years at her nonprofit agency, as well as attended various trainings on specific immigration law issues. Nevertheless, the Board denied the initial application for accreditation filed on her behalf, reasoning that the applicant was unable to show the "broad knowledge of immigration law and procedure" required by the Board's decision in Matter of EAC, 25 I&N Dec. 563 (2008). In that case, the Board held that an accredited representative must be "able to readily identify immigration issues of all types, even in areas where no services are provided," and possess "the ability to discern when it is in the best interests of the aliens served to refer those with more complex immigration issues elsewhere." Id. at 564.

Following the initial denial, the candidate for accreditation took steps to satisfy the EAC "broad knowledge" standard by participating in a two-day overview of immigration law course that addressed core concepts and procedures in immigration law. In fact, the course she took - Introduction to Immigration Law Practice: A Course for New Practitioners - was sponsored and conducted by CLINIC and addresses such topics as basic concepts in immigration law, interviewing and legal research, overview of family-based immigration, inadmissibility and deportability concepts and grounds, removal proceedings, naturalization and citizenship. The sponsoring organization then resubmitted the application for staff accreditation, and it was approved. The Board designated it as a precedent decision in order to establish the standard to be applied for all recognized agencies seeking accredited representative status for non-attorney staff.

It's important to note that this new decision imposes a specific requirement of participation in a formal overview training in order to establish that the candidate for accreditation has the appropriate broad knowledge of immigration law. In the Board's view, an overview course on the fundamentals of immigration law and procedure "provides critical insights into the interconnectedness of immigration laws and the possible interaction of other areas of law with immigration laws...and alerts the proposed representative to the dangers of over-specialization, the value of referral to more expert representation, and the potential for unintended harm when legal advice is not supported by a broad knowledge of the law." Central California Legal Services, Inc., at 106.

What does this decision mean for your agency? First, make plans to ensure that all staff members whom your program plans to sponsor for initial accredited representative status attend some type of formal training on the fundamentals of immigration law. An application for accreditation will probably not be approved without it, even if the candidate has attended a number of trainings on specific immigration law issues. Second, when applying for staff accreditation, be sure to provide the information and documentation the Board wants to see to establish the candidate's training background. As detailed in the decision, this includes a list of the immigration courses the staff member has attended, the dates of the overview course and any other trainings, the providers of the trainings, the hours completed, the topics addressed at each training, and copies of any certificates of completion, where available. Third, plan for ongoing training for staff members after initial accreditation. This new decision notes that renewal requests should also provide documentation that the accredited representative has received additional formal training in immigration law since the most recent accreditation.

If you need to find an overview course on immigration law, CLINIC can help you, and you don't have long to wait. Check out our training calendar at http://cliniclegal.org/calendar to read about all upcoming CLINIC trainings.

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BIA Issues Three Decisions on Recognition and Accreditation (2014)

On November 20th, the Board of Immigration Appeals issued three precedent decisions concerning agency recognition and staff accreditation. The first decision, Matter of United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014) concerned an organization that applied for partial accreditation of a staff person who worked at five recognized office locations in California and Arizona. The organization submitted multiple applications.  The Board determined that agency staff members who are accredited at one recognized location of an agency are authorized to practice at any other recognized location of the same agency.  Organizations no longer need to file a separate application for accreditation at each recognized location where a staff person will be providing legal services. With this decision, the Board seeks to make it easier for recognized agencies with limited resources to respond to the needs of their community.

The Board’s rationale is that multiple accreditation applications are redundant and impractical, especially when the organization has already shown, through the approved recognition application, that it provides adequate supervision and resources for its representatives at each location. The Board also noted that it is difficult for organizations to manage multiple BIA renewal application deadlines at the different locations.  Under this decision, the Board states that “recognized organizations will be in a much better position to adapt to seasonal and temporary needs, respond to staffing exigencies, and otherwise relocate personnel to maximize service delivery to their low-income and indigent clientele.”

This decision is effective immediately, and we expect to see the BIA roster of recognized agencies and accredited staff updated accordingly. That roster can be accessed here: http://www.justice.gov/eoir/ra/raroster_orgs_reps_state_city.htm, This means that if your agency has two or more recognized office locations, staff members who are accredited at one location are now authorized to practice at all the other recognized locations. The full decision can be read here: http://www.justice.gov/eoir/vll/intdec/vol26/3821.pdf.

The second decision, Matter of Ayuda, 26 I&N Dec. 449 (BIA 2014), addressed the issue of nominal fees.  In this case, an organization applying for recognition submitted a fee schedule with fees ranging from a couple of dollars for simple services to over a thousand dollars for complex litigation.  The organization is located in the Washington, DC metropolitan area.  The Board approved the application and used the decision to update and clarify its interpretation of what constitutes nominal fees, and how it determines if a candidate for recognition charges nominal fees.

The Board stated in this decision that it makes the determination of nominal fees on a case-by-case basis, and this determination is entirely dependent on the circumstances of the organization seeking recognition. In determining whether an organization charges nominal fees, the Board considers geography, client demographics, availability of services, and local overhead costs for service providers. Other factors the Board will consider include the following: the type of clerical services offered; the type and scope of legal representation; the manner of delivery of legal services; the fees imposed, if any, for each service; the actual costs to provide the services in the applicant’s geographic area; and the organization’s policy for waiving fees, adjusting fees, and assessing fees.

According to the Board, “The fee structure must be true to the goal of providing competent low-cost legal services and may not be designed simply for the purpose of financially sustaining or serving the interests of the organization.”  The Board clarifies that any increases in agency fees after receipt of recognition must still meet the nominal fee requirement.

The applicant in this case demonstrated that its fees for basic services are modest; that it adjusts its fees using the Federal poverty guidelines; that it has a fee waiver policy, which is explained in the application; and that it has substantial support from grants and is not dependent primarily on client fees.

What does this decision mean for organizations that are in the process of applying for BIA recognition? The Board states that in order to demonstrate that it charges nominal fees, an organization should submit its budget, its sources of financial support, and its fee schedule. This is not new.  However, the Board goes on to say: “The applicant should also describe how it determines its charges for immigration legal services.” This is additional information that was not required in the past. Depending on the circumstances, the Board also will now expect applicants to submit “a sample retainer agreement, a written fee waiver and/or sliding scale policy, a sample client handout regarding fees and fee waivers, and clear statements of funding and financial support on appropriate letterhead.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3820.pdf.

CLINIC will ask the Board to update its Frequently Asked Questions, located at http://www.justice.gov/eoir/ra/RandAFAQsPrintableVersion.pdf, to further clarify the documentation requirements outlined in this decision. We will be monitoring our network’s BIA applications to determine how this decision is being implemented so we can advise our affiliates accordingly. 

In the third decision, Matter of St. Frances Cabrini Immigration Law Center, 26 I&N Dec. 445 (BIA 2014), the Board addressed the situation where a candidate for agency recognition is physically co-located, financially associated with, or otherwise attached to a for-profit organization. The Board denied the application for recognition in this case, finding that the organization did not hold nonprofit status and did not provide convincing evidence of its independence from its for-profit affiliate. The organization applied under the nonprofit status of another organization of which it claimed to be a division and was in the process of obtaining separate 501(c)(3) status. The organization shares officers and directors with its for-profit affiliate.

The Board in this case expressed concerns about conflict of interest and the possibility that the organization seeking recognition might be unduly influenced by its for-profit affiliate. In such cases, “The organization must affirmatively demonstrate that its immigration services are not part of a larger commercial enterprise and do not act as a loss leader for for-profit services or serve in any other way as a façade or conduit for a business venture.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3819.pdf.

If you have any questions about these three, new decisions or the BIA application process in general, please reach out to your Field Support Coordinator. CLINIC will update its BIA Toolkit, as needed to reflect these new decisions.

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CLINIC Newsletter - February 2014 - VOL. XVIII No. 2

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  • Visa Bulletin                                                                                              
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CLINIC Newsletter - December 2013 - VOL. XVII No. 12

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BIA Recognition and Accreditation for Start-up and Expanding Programs

Join us for CLINIC’s kick-off webinar for Comprehensive Immigration Reform (CIR) preparation in 2013, the first in a series. This free webinar training covers the application process and requirements for Board of Immigration Appeals (BIA) recognition and accreditation. We also discuss the latest BIA developments, including the new FAQ sheet released by the BIA, training requirements for staff, and issues the BIA is analyzing before submitting proposed changes to recognition and accreditation regulations. BIA agency recognition and staff accreditation is the Department of Justice’s certification of nonprofit legal immigration programs and their staff. It allows non-attorneys to practice immigration law as authorized representatives. Increasing the number of BIA recognized agencies, locations, and accredited staff will be essential for implementing CIR and bringing legal services to the millions of immigrants who will be eligible for relief. This webinar is presented by CLINIC Attorneys Silvana Arista and Sarah Bronstein and CLINIC Field Support Coordinator Laura Burdick. For questions, please contact Laura Burdick at lburdick@cliniclegal.org.

Click here for the presentation slides.

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Comments Regarding Proposed Changes to Regulations Governing Recognition and Accreditation

The Catholic Legal Immigration Network, Inc. (CLINIC) submitted these comments on March 30, 2012 in response to the Executive Office for Immigration Review’s (EOIR) proposal to amend the regulations governing the recognition of organizations and accreditation of representatives who appear before EOIR.

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