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USCIS Releases New G-28 Form; Havoc Ensues As Numerous Problems Become Evidentby Vic Goel
File this one under the “If ain’t broke, don’t
fix it” category. A press release issued by
U.S. Citizenship and Immigration Services (USCIS) on October 1, 2009 announced
the publication of a newly revised Form G-28. Soon thereafter, the new
G-28 surfaced, and all Hell broke loose. Literally. For those who
don’t know, the G-28 is the form used by attorneys to enter their
appearance on behalf of a client in an immigration matter. Since its
issuance, several problems with the new form have been noted, although that
doesn’t seem to be stopping the agency from plowing forward. Simply
put, the new form isn’t quite ready for prime time, and that’s
likely to cause confusion and problems for immigration attorneys and their
clients in the days ahead. The initial complaint about the new G-28 form was that it was being
made mandatory with too short a grace period allowed for continued usage of the
old version of the form. Unfortunately, that appears to be just one of
the problems. Among the other issues identified so far are glitches that
make it impossible to properly complete a G-28 to represent a business entity,
problems with the entry of the client’s zip code, and most seriously,
problems that seem to reflect some sort of furtive agency mission to make it as
difficult as possible for USCIS customers to exercise their right to legal
counsel. As noted in the USCIS press release, “After Oct.
30, any prior versions of the Form G-28 that are received will be considered
invalid.” Thus, USCIS has granted the public just 30 days to begin
using the new form. In practice, that’s not enough lead time, since
there may be many instances where a G-28 has already been executed on the old
form, and a client is not available to complete the new form. In
time-sensitive cases, this could lead to delays that could have been easily
avoided with some advance notice from USCIS or through use of a longer grace
period during which the old version of the G-28 would be accepted.
Interestingly, the USCIS announcement unveiling the new G-28 came as a bit of a
surprise to many who felt that the agency did not provide adequate notice that
implementation of the new form was imminent. In reality, the Department
of Homeland Security (DHS) provided plenty of notice that a new
G-28 was coming, it’s just that it was done through a Federal Register
notice back in August 2008—almost 14 months earlier. The
inordinate delay in implementation caused the issue to fall from most radar
screens, and was then exacerbated by DHS/USCIS maintaining radio silence on the
subject. It seems like no one knew when the new G-28 would be unveiled
until the USCIS announcement was posted on the agency’s snazzy new
website on October 1, 2009. So much for transparency in government. Another issue causing much concern is that
the new form seems to require attorneys and clients to execute G-28s that are
quite specific about the exact matter that is the subject of the
attorney’s representation. On the old version of the form,
attorneys and clients had become accustomed to annotating the G-28 to indicate
that the attorney was entering his appearance in “All Immigration
Matters” on behalf of a client. That doesn’t seem possible
with the new version of the form, which requires marking the form with specific
USCIS form numbers that the attorney’s appearance is related to.
The new form also has separate areas that would be filled out if the matter is
before Immigration and Customs Enforcement (ICE) or Customs and Border
Protection (CBP). In practice, this effectively limits the scope of what
matters an attorney may be recognized or considered to represent a client
in. While this might not seem like a big deal at first glance, it could
have serious implications where related issues are handled by different
components of DHS, such as when a file is transferred from USCIS to ICE for
investigation. Another potentially serious problem is the
absence of an option to enter an attorney’s appearance on behalf of the
beneficiary of an immigration case. The new version of the form only
seems to recognize a “Principal Petitioner, Applicant, or
Respondent,” but not a beneficiary. While this issue (among others)
was raised and discussed in the American Immigration Lawyers
Association’s (AILA) letters submitted to DHS during the notice and
comment period in September 2008
and again in February 2009,
the agency apparently still finds it unnecessary for a beneficiary to need
legal representation. In both letters, AILA noted
Given the massive effort underway to
combat fraud in H-1B and other business immigration cases through routine USCIS
worksite visits and ICE enforcement actions where investigators question
beneficiaries, omission of a “beneficiary” option on the new G-28 seems
inappropriate. The DHS position, as stated in AILA’s letters,
raises due process concerns, particularly since the beneficiaries could face
criminal prosecution where they are a party to an alleged fraud. This is
also an obvious problem in the context of a Form I-130 petition filed by one
spouse on behalf of the other where USCIS conducts separate interviews of the
petitioner and beneficiary. Will USCIS, ICE or CBP recognize a G-28 filed
to enter my appearance as the attorney for the beneficiary if there’s no
spot on the form to designate the same? It’s not an issue that I
want left to the discretion of a potentially adverse party. A related problem on the new G-28 is
that the field provided for the name of the ”Principal Petitioner,
Applicant, or Respondent” only includes space for a first name, middle
name, and last name. How exactly will a business entity, which has no
first, middle, or last name complete this form and avail itself of
counsel? This seems to be an incredible oversight. A final glitch involves the fillable PDF
version of the G-28 posted on USCIS’ website. In the field provided
for the Petitioner/Applicant/Respondent’s five digit postal zip code, the
new form treats the zip code as a mathematical number and inserts a comma between
the second and third digits. Thus, my zip code of 20190 appears on the
form as “20,190.” Now all we need is a dollar sign in front
of the number, and it will probably match up with the H-1B and L-1 filing fees
that Senators Chuck Grassley (R-Iowa), Dick Durbin (D-Illinois), and Bernie
Sanders (I-Vermont) will propose once the Comprehensive Immigration Reform
bill hits the Senate floor. What makes these problems most exasperating is
that no one seemed to be having problems with the old version of the
G-28. While the form has received minor facelifts over the years, it has
remained largely unchanged in form and function for at least 25 years, and I
can’t ever recall anyone saying it needed to be put out to pasture.
So why did the G-28 get revised? Was it really necessary to embark on
such a drastic change in its design and function? In an era
when our immigration agencies have so many problem areas to fix, it seems like
tinkering with the G-28 was at best a foolish lark, and at worst, more evidence
of the pervasive culture of “no” that immigration attorneys have
long complained about. I’m still hoping it’s the former and
not the latter.
Orginally posted on October 6, 2009 at the The Immigration Channel. Reprint with permission.
Vic Goel is the Managing Partner of Goel & Anderson, LLC. His practice includes strategic immigration planning concerning the recruitment and hiring of international professionals, skilled technicians, managers, executives, and students. His clientele includes multinational information technology companies, telecommunications providers, biotech and engineering firms, financial services firms, manufacturing entities, and luxury hotel chains that rely on international personnel to meet their staffing needs worldwide. Vic is an active speaker and writer on immigration law. He has been interviewed on immigration issues by the NBC Nightly News, and his articles and quotations have appeared in publications such as the Wall Street Journal, The Washington Post, CNN.com, ComputerWorld magazine, SiliconIndia magazine, the Times of India, India Abroad, and others. Vic has also appeared as a featured and keynote speaker on immigration issues at industry meetings and trade association conferences nationally and internationally. He has also been selected for inclusion in The International Who’s Who of Corporate Immigration Lawyers, a publication that conducts research to identify the preeminent lawyers in the field. Vic is a longtime member of the American Immigration Lawyers Association, the Technology Association of America's Immigration Policy Committee, the Compete America coalition, and the International Bar Association.
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