UPL SECTION II

Unauthorized Practice of Law
(UPL)
A Module for the Graduate Certificate

in Immigration Law Studies
Section II: Federal and State Rules

INTRODUCTION
• Increasingly, immigrant advocates such as lawyers,

paralegals, and accredited representatives are turning to the
CUNY School of Professional Studies (CUNY SPS) to learn
about the complex and ever-changing field of immigration
law.
• CUNY SPS’s Graduate Certificate in Immigration Law

program is designed to provide fundamental information
about immigration law. However, that information is not a
substitute for authorization to practice law.
• Individuals assisting foreign nationals in the field of

immigration law must understand the limitations of their role
and their ethical and legal obligations with respect to UPL.
OVERVIEW OF PRESENTATION
Section I: Introduction to UPL
Section II: Federal and State Rules
Section III: Consequences of UPL
Section IV: Examples of UPL

Section II
FEDERAL AND STATE

RULES
FEDERAL RULES
Federal Rules define who can represent individuals:

1. before the Department of Homeland Security (DHS),
including USCIS; and
2. before the Executive Office of Immigration Review
(EOIR), which includes:
• immigration courts; and
• Board of Immigration Appeals (BIA).
WHO IS AUTHORIZED TO PROVIDE
IMMIGRATION LEGAL SERVICES?
• Only a licensed attorney (licensed in any state of the

United States) or an individual who is an accredited
representative and who works for an organization that is
recognized by the BIA, may represent an immigrant in
connection with an immigration matter or court case.
WHAT IS AN ACCREDITED
REPRESENTATIVE?
Accredited representative:
an individual who works with a recognized organization
with BIA authority to help people in immigration court.
Recognized organization:
a nonprofit, religious, charitable, social service, or similar
organization with authority from the BIA.
RECOGNITION AND ACCREDITATION
BY THE BIA
To become a recognized organization by the BIA, an

organization must demonstrate that they:
• charge nominal fee for services and;
• have adequate knowledge, information and
experience.
(See a list of such recognized organizations at:
http://www.justice.gov/eoir/ra/raroster_orgs_reps.htm)
Representative(s) from a recognized organization apply to

become accredited to practice immigration law before the
Service, and/or BIA.
See 8 C.F.R. §§292.2; 1292.2 (2012).
MORE ON ACCREDITED
REPRESENATIVES
• An accredited representative may not provide

immigration services at any organization except the one
he/she is affiliated with.
• An individual may be accredited at more than one

organization.
• An individual’s status as an accredited representative

belongs to the organization, rather than to the individual.
OTHER NON-LAWYERS AUTHORIZED IN
IMMIGRATION CASES
Law students and law graduates (not yet admitted to the bar):
• Must be supervised by a faculty member, licensed attorney or an
accredited representative
• Must obtain permission from immigration court or DHS official
• May not receive remuneration from the client, directly or indirectly
Reputable Individuals (friends, family members, etc.) as long as they:

• Do not regularly represent people in immigration matters
• Do not charge a fee
• Obtain permission from the official before whom the appearance is
sought (interviews and in-person hearings only!)
See 8 C.F.R. §§292.1; 1292.1 (2012).
WHAT DOES IT MEAN TO REPRESENT
SOMEONE?
The term “representation” includes practice and

preparation.
See 8 C.F.R. §§ 1.1(m); 1001.1(m) (2012).
Practice:
The “act or acts of any person appearing in any case,
either in person or through the preparation or filing of any
brief or other document, paper application, or petition on
behalf of another person or client.”
See 8 C.F.R. §§ 1.1(i); 1001.1(i) (2012).
WHAT DOES IT MEAN TO
REPRESENT SOMEONE? (cont’d)
Preparation
Defined: “study of the facts of a case and the applicable
laws, coupled with the giving of advice and auxiliary
activities, including the incidental preparation of papers. . .”
See 8 C.F.R. §§ 1.1(k); 1001.1(k) (2012).
Example: Advising people whether they should file an

immigration application and which immigration forms to use
is considered “preparation.”
WHAT IS LEGAL ADVICE?
1. Interviewing and advising on possible immigration options

2. Selecting or recommending immigration forms
3. Completing immigration forms
* Exception: ok for non lawyer if purely clerical task and all
other UPL rules respected
4. Determining an individual’s immigration status
5. Providing guidance on how to complete forms
6. Analyzing immigration documents
7. Assessing relevance of criminal history
8. Making determinations on relevant biographic information to
include in forms
WHAT ARE REQUIREMENTS TO
REPRESENT SOMEONE?
• DHS: Submit a “Notice of Entry of Appearance as Attorney or
Accredited Representative” on Form G-28.
See 8 C.F.R. 292.4.
• Failure to submit Form G-28 may result in disciplinary sanctions.
See 8 C.F.R. 292.3(b) and 8 C.F.R. 1003.102(t).
• EOIR: All representatives enter appearance on Form EOIR-28.
UPL RULES IN NEW YORK
Rules about UPL also come from State Laws. Immigration

Service Providers in New York must comply with:
1. Unauthorized Practice of the Law

• Judiciary Law §478, AND 484.
2. Immigration Services Provider Law

• New York State General Business Law (GBS).
New York Code: Article 28-C, §§ 460-A – 460-J.
• NYC Administrative Code (ADC),

§§ 20-770 – 20-778. (Title 20, Consumer Affairs,
Subchapter 14)
PROHIBITED CONDUCT BY NON-
LAWYERS IN NY STATE
In New York, a person not admitted to the Bar (non-

lawyers) MAY NOT:
 Practice law (giving of legal advice and preparation
of legal documents);
 Consult with clients to develop legal strategies;
 Furnish attorneys or counsel to render legal
services;
 Appear in court as an attorney or hold him/herself
out to the public as being entitled to practice law in
any manner;
LAWYERS IN NY STATE (cont’d)
Non-lawyers MAY NOT:

 Prepare and submit documents without review by
and signature of attorney;
 Prepare cases without attorney supervision;
 Select forms and/or advise clients regarding the
proper immigration forms; or
 Suggest and evaluate evidence required in particular
cases and/or matters.
LAWYERS IN NY STATE (cont’d)
Non-lawyers MAY NOT:

 Imply ability to obtain special favors from, or have
special influence with immigration officials;
 Make misrepresentations, advise, or permit others to
provide false information; or
 Refuse to return original documents or copies of
filings, etc.
UPL RULES FOR LAWYERS
Attorneys may not merely “lend their name” and

must actually supervise and review all documents
prepared by a paralegal.
PERMITTED ACTIVITIES BY
NON-LAWYERS
Non-lawyers MAY:
 Translate documents and oral conversations and obtain supporting
documents (birth certificates, police clearances, etc.)
 Schedule photographs, fingerprints, medical tests
 Prepare documents under supervision of attorney
 Conduct English language and civics courses
 Complete forms that the client selects, with information the client
provides (but may not suggest forms or insert information not
provided by client) and MAY NOT HOLD HIMSELF OUT TO BE A
LAWYER
 Refer clients to attorneys without taking a fee
 If a notary public, perform functions of a notary
UPL OUTSIDE NEW YORK
Other states have enacted UPL laws similar to New York:

1) Illinois: See, 14 Ill. Admin. Code, Sec. 485.10;
2) California: Business and Professions Code Sec. 22440.
Court cases highlight problem of UPL:
1) See, e.g., State Bar of Texas v. Cortez, 692 SW 2d 47, cert.
denied 106 S.Ct. 385 (1985);
2) Florida Bar Ass’n v. Moreno Santana, 322 So.2d 13 (Fla. 1975).
Federal rules regarding UPL govern nationwide.
Carefully research UPL rules and rules pertaining to

immigration services providers in your state.
SECTION II RECAP:
Federal and State Rules
QUESTION:
Can a non lawyer help someone determine his or her immigration
status? Why or why not?
ANSWER:
Probably not.
WHY?
A foreign national may have legal status, may have entered the country
illegally, or may not be aware of his/her actual status.
The process of helping someone answer this question involves

providing legal advice, which a non lawyer may not do.
SECTION II RECAP:
Federal and State Rules
QUESTION:
Can a non lawyer help someone by providing information in forms?
ANSWER:
It depends.
WHY?
If purely clerical ok…..
BUT NOTE, the forms filed provide the address of the immigrant, which
may expose him/her to an increased risk of deportation if submitted since
attorney-client privilege exists only between an attorney and client.
Damaging information from a non-attorney may be legally discoverable.

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Unauthorized Practice of Law

A Module for the Graduate Certificate

Section II: Federal and State Rules

• Increasingly, immigrant advocates such as lawyers,

• CUNY SPS’s Graduate Certificate in Immigration Law

• Individuals assisting foreign nationals in the field of

Section I: Introduction to UPL

Section II: Federal and State Rules

Section III: Consequences of UPL

Section IV: Examples of UPL

FEDERAL AND STATE

Federal Rules define who can represent individuals:

• Only a licensed attorney (licensed in any state of the

To become a recognized organization by the BIA, an

Representative(s) from a recognized organization apply to

• An accredited representative may not provide

• An individual may be accredited at more than one

• An individual’s status as an accredited representative

Reputable Individuals (friends, family members, etc.) as long as they:

The term “representation” includes practice and

Example: Advising people whether they should file an

1. Interviewing and advising on possible immigration options

Rules about UPL also come from State Laws. Immigration

1. Unauthorized Practice of the Law

2. Immigration Services Provider Law

• NYC Administrative Code (ADC),

In New York, a person not admitted to the Bar (non-

Non-lawyers MAY NOT:

Non-lawyers MAY NOT:

Attorneys may not merely “lend their name” and

Other states have enacted UPL laws similar to New York:

Carefully research UPL rules and rules pertaining to

The process of helping someone answer this question involves

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