The following article provides guidance as to when foreign licensed attorneys are permitted to represent clients before the Department of Homeland Security (hereafter referred to as "DHS"). Changes that will go into effect on November 1, 2009 will seriously hinder the ability of Canadian attorneys to represent clients in immigration matters before DHS.
The Code of Federal Regulations (hereafter referred to as "CFR"), in addition to the recently amended DHS attorney representation forms (hereinafter referred to as "G-28" or "G-28I" and the Immigration and Nationality Act (hereinafter referred to as "INA"), provide the legal basis for this article.
8 C.F.R. § 292.1, the general rule concerning representation by foreign attorneys, states:
(6) Attorneys outside the United States. An attorney other than one described in §1.1(f) of this chapter who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he/she resides and who is engaged in such practice. Provided that he/she represents persons only in matters outside the geographical confines of the United States as defined in section 101(a)(38) of the Act, and that the Service official before whom he/she wishes to appear allows such representation as a matter of discretion.
Moreover, the instructions to Form G-28 specifically state:
Attorneys admitted to the practice of law in countries other than the United States must use Form G-28I and may only represent individuals in matters filed in DHS offices outside of the geographical confines of the United States."
Also, the instructions to Form G-28I specifically state:
This form may not be filed with matters in offices within the United States.
Finally INA § 101(a)(38) mentions:
The term "United States", except otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.
According to the above, foreign licensed attorneys are prohibited from using Form G-28 and can only represent clients in matters outside the geographical confines of the United States by completing Form G-28I. More specifically, the G-28I form is to be used in proceedings conducted outside the geographical confines of the United States by an attorney who is licensed to practice law "and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice of law, and with the permission of the DHS official before whom he or she seeks to appear".
Consequently, Canadian attorneys may not represent clients at any DHS office located in the United States which would include any United States Citizenship and Immigration Services offices and any United States Customs and Border Protection land border ports located within the geographic confines of the United States including the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.
Conversely, pursuant to the same authority, Canadian attorneys may utilize Form G-28I to represent clients outside of the United States, including at any DHS office located outside of the United States which would include any United States Preflight Inspection Station or United States Citizenship and Immigration Service office located in any United States Consulate, since all are located geographically outside of the United States.
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