Immigration policies at today’s USCIS may change in a flash. They can be announced and then, without forewarning or explanation, withdrawn in the milliseconds it takes for the agency’s webmaster at www.uscis.gov to push the upload and delete buttons. At times they are as reliable and ephemeral as the inducements of a carnival barker. Take for example a January 19, 2010 policy memo, “Signatures on Applications and Petitions Filed with USCIS” (penned by USCIS Acting Deputy Director, Lauren Kielsmeier). The memo appeared evanescently and then, as Ron Ziegler, Richard Nixon’s former press secretary in the Watergate era, might have said, it became “inoperative.”
While it lasted, the disappearing memo decreed:
An application or petition signed by counsel (other than in-house counsel who meets the qualified agent requirements stated above) or by any other outside agent does not meet the [authorized signature] requirements of 8 CFR 103.2(a)(2).
USCIS will reject any filing that does not contain a proper signature by the applicant . . . or petitioner or qualified agent for any applications and petitions received after the date of this Memo. USCIS is reaffirming this policy to preserve benefit integrity and to ensure that only those representatives authorized pursuant to the regulations file applications or petitions with USCIS.
USCIS acknowledged in the vanishing memo that, in the near-term past, agency practices on signature requirements had been inconsistent:
Recently, USCIS has seen varied practices related to signatures on forms. These practices have included: (1) applications or petitions without the required signature of the actual applicant or petitioner, and (2) applications and petitions signed by a Form G-28, Notice of Entry of Appearance as Attorney or Representative, authorized representative or individuals claiming authority to act on behalf of an alien through a power of attorney. These varied practices, in certain instances, are attributable to practitioner reliance on agency correspondence in individual cases, rather than formal policy guidance.
The assertion in the last quoted sentence, pointing to “agency correspondence in individual cases” as the grant of permission for attorneys to sign petitions and applications on behalf of clients, is not, however, the full story.
As recently as April 4, 2008, USCIS’s website, on a page entitled, “Signature Requirements for USCIS Forms,” stated:
Legal Requirements for the Signature on Petitions and Immigration Benefits Applications . . .
Attorneys and Accredited Representatives: The signature of any attorney or accredited representative who has been granted legal authorization to sign on behalf of the petitioner or the applicant must be in the original. (Italics added.)
The April 4, 2008 USCIS website posting is consistent with immigration case law. See, Santiglia v. Sun Microsystems, Inc., a case, ironically, in which Sun was then represented by a private practioner who is now the current USCIS Chief Counsel. In Santiglia, the Administrative Law Judge rejected a challenge to signatures on H-1B Labor Condition Applications even though the forms were not signed personally by the employer’s HR manager, where the manager had authorized outside counsel to sign on the company’s behalf.
Without explanation, however, on April 16, 2008, USCIS’s webmaster posted an update to “Signature Requirements for USCIS Forms” that removed the permission given until April 4, 2008 for attorneys to sign immigration petitions and applications if “granted legal authorization to sign” on the client’s behalf.
Regrettably, as I’ve noted in a prior post, this type of bait and switch has happened before with USCIS’s website, e.g., when the agency posted and then withdrew without explanation a revised I-9: “Untruth in Advertising: The Mysterious ‘Rebranding’ of Immigration Form I-9.”
To its credit this time, however, USCIS has offered a semi-public explanation (albeit not on www.uscis.gov) to the American Immigration Lawyers Association (AILA):
AILA liaison has been informed that a USCIS memorandum dated January 19, 2010, addressing signature requirements on applications and petitions, was posted to the USCIS website prematurely and is being withdrawn. USCIS intends to conduct a stakeholder engagement event early next week to discuss development and implementation of policies on signature requirements for applications and petitions. Watch InfoNet for further information.” AILA InfoNet Doc. No. 10020463 (posted Feb. 4, 2010).
Even more refreshing than the agency’s explanation, USCIS, quite commendably, is reaching out for the views of the stakeholder community. Foreseeably, stakeholders will likely note that the shuttling of forms prepared by attorneys to clients for signature and the return of the documents to the lawyer for submission to USCIS create unaffordable delays (especially given the Labor Department’s tardiness in issuing Labor Condition Applications, often just before, and sometimes after, an impending H-1B status expiration and filing deadline). The public will likely explain that the “client’s original signature” requirement benefits no one other than the overnight courier industry. Perhaps, in addition, the technorati will urge USCIS to forgo ink and go digital by embracing the Government Paperwork Elimination Act, a statute that authorizes the submission of government forms with electronic signatures.
The Urban Dictionary defines a “signature” accurately (at least in describing my penmanship) as “[w]hen someone writes his/her own name in cursive, usually illegible.” The Bard in Sonnet 83 proclaims: “How far a modern quill doth come too short.” After stakeholder consultation, may USCIS (cross your fingers) not come up too short, and instead choose bytes over pen and ink, and until then, continue to permit the legitimate use of a client’s power of attorney for lawyers to sign immigration petitions and applications.
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Angelo A. Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.