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Strategic Policy and Politics Memo
Recommendation: Revamping the U.S. DOJ’s Recognition of Certain Organizations and Accreditation of Representatives to Practice Immigration Law in the United States
Acronyms
BIA – Board of Immigration Appeals
DHS – Department of Homeland Security
EOIR – Executive Office for Immigration Review
OLAP – Office of Legal Access Programs
U.S.C. – U.S. Code
USCIS – U.S. Citizenship and Immigration Services
NVC – National Visa Center
U.S. DOJ – United States Department of Justice
ELIS – Electronic Immigration System
U.S. DOS – United States Department of State
Note: Certain passages may appear to use BIA and U.S. DOJ interchangeably. The recognition and accreditation process was previously administered by the BIA prior to being transferred to the U.S. DOJ.
1. Background about the BIA’s Recognition and Accreditation Program
The Board of Immigration Appeals (BIA) serves as the highest administrative body responsible for interpreting and applying immigration laws in the United States of America. The Board is authorized to include up to fifteen Members, including a Chairman and Vice Chairman, who share responsibility for its management and oversight. The BIA is headquartered within the Executive Office for Immigration Review (EOIR) in Falls Church, Virginia.
In general practice, the BIA does not conduct courtroom proceedings. Instead, it adjudicates appeals through a “paper review” process, evaluating the written record of each case. On rare occasions, however, the Board hears oral arguments, primarily at its headquarters.
The BIA has nationwide jurisdiction to review appeals from specific decisions rendered by immigration judges and district directors of the Department of Homeland Security (DHS). These proceedings typically involve the United States Government as one party and, as the opposing party, an alien, a citizen, or a business entity.
In addition to its appellate responsibilities, the BIA was previously tasked with recognizing organizations and accrediting representatives seeking authorization to practice before DHS, immigration courts, and the BIA itself. This responsibility has since been transferred to the United States Department of Justice (U.S. DOJ).
Accredited representatives may assist aliens in immigration proceedings before the BIA, before DHS, or before both entities, depending on the scope of their accreditation. Some representatives are authorized to appear only before DHS. All accredited representatives must be designated by an organization recognized by the Board (now the U.S. DOJ).
Before the transfer of authority to the U.S. DOJ, organizations were required to apply to the BIA for recognition and to seek accreditation for their representatives. The standards governing organizational recognition, the submission of recognition requests, withdrawal procedures, and representative accreditation are set forth in the Code of Federal Regulations at 8 C.F.R. § 292.2.
2. Issues at Hand
I am a former BIA/U.S. DOJ accredited representative and a member of a national network composed of more than 275 community-based legal immigration service advocacy organizations that provide assistance to low-income immigrants in immigration matters.
This network operates through more than 400 offices across 46 states and employs approximately 1,600 staff members, including attorneys, accredited representatives, and paralegals. Collectively, the network serves over 300,000 immigrants annually. The programs within the network reflect diverse organizational models, service delivery methods, and institutional sizes. Some programs rely exclusively on accredited representatives to provide immigration services. Others utilize a combination of attorneys and accredited representatives, while still others are composed solely of attorneys and paralegal staff.
The network serves individuals seeking family-based immigration benefits, victims of trafficking and crimes, refugees, asylees, youth and young adults pursuing Deferred Action or Special Immigrant Juvenile status, individuals in removal proceedings, and applicants for naturalization.
Currently, within the United States of America, there exists an overwhelming need for immigration legal services, particularly for low-income immigrants and vulnerable populations. In addition to the national demand for such services, certain geographic areas—especially the Southeastern region of the country—have experienced exponential growth in Hispanic populations and remain particularly underserved.
The private bar alone cannot adequately meet this expanding demand for qualified representation. Furthermore, the need for immigration services will likely increase significantly in the event of legislative or administrative immigration relief measures.
Recognizing this demand and drawing upon my professional expertise in legal program development, I have consistently supported the recognition and accreditation system since its inception. The network to which I previously belonged represents approximately 35 percent of all U.S. DOJ recognized agencies and 45 percent of accredited representatives nationwide.
I firmly believe that the recognition and accreditation framework is an invaluable mechanism for increasing the availability of competent representation for underserved immigrant populations, thereby reducing reliance on unqualified and unscrupulous actors.
Due to my direct involvement in and familiarity with the program, I have advocated for substantial changes to the recognition and accreditation process and its qualification standards for more than fifteen years. Over the past decade, I have encouraged the BIA to consider regulatory amendments aimed at strengthening the program and enhancing its ability to meet its stated objective of increasing capacity and access to representation. I have also provided specific recommendations to improve the application process and to ensure adequate monitoring mechanisms to prevent fraud and unauthorized practice.
The current proposed rule incorporates several welcome improvements. I appreciate the significant time and resources that the BIA and the Office of Legal Access Programs (OLAP) have dedicated to gathering and reviewing public comments. The 2015 proposed rule identifies its primary objective as promoting the effective and efficient administration of justice before DHS and the BIA by expanding access to competent representation for underserved immigrant communities. I fully support this objective.
Moreover, I am encouraged that the BIA is revising the rule to increase the availability of qualified representation for primarily low-income and indigent individuals while simultaneously protecting the public from fraud and abuse by unscrupulous organizations and individuals.
Nevertheless, even with refinements to the existing framework, I strongly believe that the demand for immigration services will remain unmet. Alternative approaches to the current recognition and accreditation system must therefore be considered.
3. Alternative Options to the Recognition and Accreditation Process
Despite the efforts undertaken by the U.S. DOJ to enhance the recognition of organizations and accreditation of representatives process, the structural concerns identified above will not be fully resolved under the current framework.
New strategies must be implemented to provide opportunities for reputable practitioners—particularly those who do not work for a recognized organization—to assist clients with immigration matters and to be authorized to appear before DHS, immigration courts, and the BIA. Such authorization, of course, should occur through a rigorous vetting process designed to preserve professional standards and protect the public.
3.1 Authorize the DHS to Accredit Certain Practitioners
At present, only the U.S. DOJ has the authority to accredit individuals to practice immigration law in the United States and to appear with clients before DHS, immigration courts, and the BIA. However, in practice, the majority of accredited representatives primarily represent clients before DHS.
Given this operational reality, it would be logical and administratively efficient to grant DHS the authority to accredit individuals for matters that fall within its jurisdiction. Many advocates and DHS personnel support this approach because it would significantly reduce the bureaucratic layers currently involved in the U.S. DOJ accreditation process.
3.1.1 Criteria
Under the existing U.S. DOJ recognition and accreditation framework, applicants are required to serve a copy of their application upon DHS for review and recommendation regarding approval or disapproval. In many instances, the U.S. DOJ’s ultimate decision reflects the recommendation provided by DHS, particularly because most applicants seek authorization to practice before DHS.
Accordingly, it would be consistent with current practice to authorize DHS to accredit those individuals who intend to appear in cases under its jurisdiction.
3.1.2 Performance
DHS possesses both the subject-matter expertise and the personnel necessary to administer such an initiative effectively. Each regional office already maintains a team responsible for reviewing and providing recommendations to the U.S. DOJ concerning recognition and accreditation applications.
Given this existing infrastructure, I do not anticipate operational difficulties if DHS were formally granted the authority to determine which individuals should be authorized to appear in matters before the agency. Numerous advocacy organizations and professional networks support this initiative.
3.1.3 Political and Administrative Feasibility
Implementation of this proposal would not require additional financial expenditures. Furthermore, I do not foresee significant institutional opposition from the U.S. DOJ in delegating this specific authority to DHS, particularly given the latter’s current advisory role in the process.
3.2 Adoption of the U.S. Department of State’s Model
Under U.S. immigration law governing the two-part process for family-based immigration, USCIS receives, reviews, and adjudicates petitions filed by petitioners residing in the United States. Once USCIS approves a petition, it forwards the case to the U.S. Department of State’s agency responsible for immigrant visa processing—the National Visa Center (NVC)—for further action.
The NVC then notifies the petitioner in the United States and permits them to designate an individual, commonly referred to as a third-party agent, to represent them and receive all subsequent correspondence relating to the beneficiary residing overseas. Notably, there is no requirement that such a third-party agent be accredited by the U.S. DOJ, DHS, or the U.S. DOS, nor is there a requirement that the individual be employed by a recognized organization.
The ability to designate a third-party agent should not be limited exclusively to family-based petitions. This option should be extended to all other immigration benefits administered by USCIS, including employment-based visas, asylum applications, petitions under the Violence Against Women Act (VAWA), naturalization applications, and other immigration benefits.
3.2.1 Criteria
USCIS should develop either an electronic or paper-based form allowing applicants to designate a third-party agent authorized to assist with completing required forms and to represent them before the agency during interviews and other proceedings.
3.2.2 Performance
This approach would provide meaningful financial relief to low-income immigrants who cannot afford private attorneys’ fees. Additionally, there are numerous qualified advocates within immigrant-serving communities who could competently function as third-party agents in many immigration proceedings.
3.2.3 Political and Administrative Feasibility
Potential resistance to this proposal may originate from segments of the private bar, which have historically advocated against expanding authorization for non-attorneys to practice immigration law.
From an administrative perspective, however, USCIS already collaborates with a contractor through the Electronic Immigration System (ELIS), which has made most immigration forms available and fillable through an online platform. Therefore, incorporating an electronic mechanism allowing applicants to designate a vetted third-party agent to represent them—including appearing for interviews and providing legal advice—would not present insurmountable logistical challenges.
3.3 Establishment of a National Exam
The U.S. DOJ and DHS should collaborate to develop comprehensive training programs and establish a national examination that would authorize individuals who successfully pass the exam to represent clients in matters before their respective agencies.
Many reputable immigration advocates who do not meet the current U.S. DOJ recognition and accreditation requirements have expressed support for such an initiative.
3.3.1 Criteria
The national examination should be administered online and should allow candidates to select specific areas of immigration law and regulatory practice that correspond to their training, skills, and experience.
Upon passing the examination, individuals should be authorized to assist clients only in cases falling within the scope of their certified area of practice.
Training resources should be developed to prepare candidates adequately. Organizations such as Immigration Advocates Network and Catholic Legal Immigration Network have already produced substantial educational materials for advocates. The U.S. DOJ and DHS could collaborate with these organizations to develop additional training manuals that align with agency requirements.
3.3.2 Performance
This initiative would significantly expand the pool of individuals qualified to assist low-income immigrants with immigration matters. Many immigration advocates possess paralegal degrees or have completed extensive training that equips them to perform their responsibilities competently.
3.3.3 Political and Administrative Feasibility
USCIS could partner with Immigration Advocates Network and Catholic Legal Immigration Network to develop and administer the national examination. The Electronic Immigration System (ELIS) could be used to make the examination accessible online.
The Secretary of DHS maintains discretionary budget authority that could be allocated to fund this initiative. Additionally, it has been discussed within various advocacy networks that, should this proposal advance, additional funders and advocacy organizations would likely provide financial support.
4. Recommended Course of Action
I remain fully supportive of the U.S. DOJ’s efforts to strengthen the regulation and implementation of the recognition and accreditation program. This issue is of particular importance to me given my prior professional involvement in immigration matters and my participation in the largest national network of recognized organizations employing accredited representatives.
Among the alternative options identified above, I recommend that the U.S. DOJ delegate to DHS the authority to recognize organizations and accredit individuals to practice immigration law in proceedings pertaining to DHS jurisdiction.
Under the current U.S. DOJ recognition and accreditation process, applicants are required to serve a copy of their application upon DHS for review and recommendation. In practice, the U.S. DOJ frequently relies on DHS recommendations when rendering decisions, particularly because most applicants seek authorization to practice before DHS.
Therefore, it is logical and administratively consistent to grant DHS formal authority to accredit those individuals who intend to appear in cases under its jurisdiction.
I strongly believe that implementation of this proposal would significantly enhance the effectiveness of the recognition and accreditation program. It would better fulfill the program’s stated intent by ensuring that low-income immigrants have access to recognized organizations and accredited representatives capable of representing them in immigration matters before the BIA, immigration courts, and DHS.
By Issa Ndiaye | Principal and CVO at OVINDI International Group