G-28 Authorization Of Representation Becomes A Trial For Attorneys/Other Representatives

by Alan Lee, Esq.

U.S.C.I.S. changed over to a bar coded G-28 authorization of representation in its February 28, 2013, edition which became the only acceptable one (no prior editions) on May 27, 2013. The G-28 is an authorization for an attorney or other representative to act on behalf of a petitioner, applicant or respondent with respect to actions before U.S.C.I.S., US.I.C.E. (Immigration and Customs Enforcement), or U.S.C.B.P. (Customs and Border Protection). Besides attorneys, other persons entitled to use the form are accredited representatives of qualified nonprofit religious, charitable, social service, or similar organizations in the U. S. recognized by the Board of Immigration Appeals and law students or law graduates working under the direct supervision of an attorney or accredited representative of record in accordance with the regulations. Earlier editions of the G-28 were simple in character, with the form only asking for the filling in of the petitioner or applicant’s name, standard information concerning the lawyer/representative’s licensing and original signature. Most controversies in the past over G-28’s were confined to such subjects as whether an original signature was required and whether the form could be on any other color paper than blue. That all changed with the new G-28 as a slew of complaints has erupted from attorneys that U.S.C.I.S. has not registered them as the attorneys of record and is only sending case notices to the applicants or petitioners despite their having attached authorizations of representation. The embarrassing effects of lack of notice are that the attorney/other representative does not appear to know what is going on with the case, and must rely upon the client to notify him or her of any actions – certainly not what any client bargains for in engaging the attorney/other representative. The more harmful effects are a lack of notice to both parties as the agency has a historical bad record in not sending out proper notices resulting in non-receipt of fee receipts, requests for evidence (RFEs), notices of intention to deny (NOIDs) or revoke (NOIRs), denials, and approvals. Even where the petitioner/applicant receives the notices, he or she frequently believes that the attorney/other representative has a copy of the notice, assumes that the attorney/other representative will take the proper action, and so does not notify him or her. Fee receipts are the only effective way to track cases with the agency as case numbers are assigned on the receipts. Previously case numbers were placed on customer checks and could be accessed when the checks were canceled, but that no longer appears to be the case. RFEs, NOIDs, and NOIRs must be answered within a certain number of days, and if not received and answered, result in denials based upon abandonment. Even with knowledge of the case numbers , attorneys/other representatives who attempt to track petitions or applications through the U.S.C.I.S. online case status system are often unable to discern that a RFE, NOID, or NOIR has been issued as information is not frequently updated and the system may only show that the case is in the initial review stage. Denial of an application or petition gives the right to appeal or file a motion to reopen or reconsider the decision within 30 days. If not received, the deadline would pass before any action could be taken. Even if the online case status system states that the case has been denied, there is no effective way to appeal or request reopening/reconsideration without more information as to the reason(s) for denial as appeals and motions must state the errors that they are addressing. Non-receipt of approvals also works hardships if the parties do not know that the matter has been approved and continue attempts to trace the results of the case. Even when they finally know that the matter is approved, lack of approval notice means problems many times with other agencies like the Department of Motor Vehicles in obtaining licenses, Social Security in obtaining a proper card, police or ICE if stopped and asked for current immigration status, and American embassies/consulates if traveling outside the U. S. and attempting to return on the basis of the new status.

G-28 problems were brought up in the American Immigration Lawyers Association (AILA)/Service Center Operations (SCOPS) Teleconference Agenda of September 24, 2013, in which AILA stated that there were a number of recent reports of errors in G-28 information at both the service center and the lockbox and that these included data processing errors and failure to recognize submitted G-28’s. AILA also complained that neither the attorney of record nor petitioner was notified when a G-28 was found to be “defective”; that it was only when notices failed to appear or communication with U.S.C.I.S. was prevented that the attorney learned that there was a problem. AILA subsequently posted a FAQ sheet on filling out G-28’s on October 11, 2013 titled “AILA FAQs: Completing The New G-28 Form Answers Provided By U.S.C.I.S. Office Of Intake And Document Production.”

What should attorneys/other representatives do to ensure that their G-28’s are not discarded or ignored? The writer’s best suggestion is to treat the G-28 now as part of the adjudication. No longer is it a matter of the attorney/other representative merely signing a preset one-page blue sheet on which the only changeable information was the name of the petitioner or applicant along with the address. The G-28 is now two sheets which apparently must now be thoroughly filled out to have effect. Reasons for which G-28’s can be rejected include the following:

1. The petitioner or applicant’s signature is missing or is a photocopy.

2. The representative’s signature is missing, stamped, or is a photocopy.

3. The representative’s address is incomplete.

4. It appears that someone other than the representative/applicant/petitioner signed the G-28.

5. The beneficiary signed the G-28 and not the petitioner.

6. A specific representative’s name was not listed in the name block as a firm name only is not acceptable.

7. More than one representative’s name is listed in the name block.

8. The type of appearance portion of the G-28 has not been completed.

9. The G-28 is an older version than 2/28/13.

10. The G-28 is missing pages.

With regard to the tenth reason, the writer is deeply suspicious that U.S.C.I.S. has been separating the pages of the G-28s, dislocating the second page, and discarding G-28s as incomplete. In the beginning, practitioners were given to understand that the G-28 had to be given to the agency on two separate sheets. However, in the AILA 10/11/13 posting, the answer provided by U.S.C.I.S. is now that separate pages are preferred, but not required. In that FAQ, there was also a question touching upon the significance of the barcode with AILA asking that since the first page only contained attorney information, could it be preprinted and used for all cases for the attorney and only the second page would be unique to each case, to which U.S.C.I.S. answered that it would look further into the issue and advise separately.

Through the newest G-28 edition, U.S.C.I.S. has made the authorization of representation a trial by itself. The agency has been less than helpful in informing attorneys/other representatives of any mistakes that they may have made in filling out the form. Its rejection without notice of the G-28s has been painful and caused needless uncertainty and harm in petitions/applications. It should exhibit a more tolerant attitude in accepting and explaining the mistakes made in G-28s as well as in all new forms as it now frequently changes a number of forms one to three times a year whereas it only used to change a form every few years in the past. By the same token, attorneys and other representatives should pay renewed attention to detail in filling out the G-28 and treat it as they do other parts of the petition or application.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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