A new attorney representation requirement was recently instituted by the United States Citizenship and Immigration Services ("USCIS") during the Fall of 2009 which severely limits the ability of Canadian attorneys to represent clients with regards to United States immigration matters. This new requirement could affect the ability of Canadian in-house attorneys to represent employees applying for visas at the border or within the United States.
Previously, foreign attorneys were permitted to represent clients in all United States immigration matters by simply filling out Form G-28, which is an attorney representation form issued by the USCIS. This form is required in order to communicate with any government official about any particular immigration case pending with United States government. Before we discuss the new attorney representation requirements, for background informational purposes, it is important to focus on the most frequent types of visa applied for by Canadian companies for their employees under the North American Free Trade Agreement ("NAFTA").
Typical NAFTA Visas Utilized by Canadian Companies
Canadian L-1 and TN visa applicants may apply for their visas at any port of entry pursuant to the North American Free Trade Agreement. L-1 visas are for intracompany transferees, including multinational managers, executives and persons with specialized knowledge. TN visas are for professionals or, in certain situations, consultants or technicians.
More specifically, L visas are available to intra-company transferees of a corporation or a subsidiary or affiliate who have been employed for one (1) of the past three (3) years by the company. The employee must have one (1) year of service with the company in a foreign country. Both classes of L visas recognize dual intent. For an L-1A visa, the employee must have served in an executive or managerial capacity during the one (1) year period. L-lA visa holders may apply for permanent resident status without a labor certification. For an L-1B visa, the employee must possess specialized knowledge or skills essential to the functioning of the company and typically must have a baccalaureate degree or its equivalent. L-1B visa holders may apply for permanent resident status, but typically require labor certification from the United States Department of Labor.
Both the L-1A and L-1B visa applications require Form I-129 with L supplement and supporting documentation. The supporting documentation must first establish the subsidiary or affiliate relationship between the employee's current foreign employer and the proposed United States employer. This is generally established through the submission of a confirmation letter and through the submission of annual reports. Additional documentation must be submitted establishing that the employee has functioned in an executive, managerial or specialized knowledge capacity for at least one (1) of the past three (3) years with the company in a foreign country. This is done through the submission of resumes and organizational charts. Finally, information regarding the employee's educational background and work history are also submitted.
L-lA visas are valid for a total of seven (7) years, while L-1 B visas are valid for a total of five (5) years. Typical applications request an initial period of three (3) years, followed by a request for an extension of the remaining years available under the given visa category. An extension application requires the same documentation as the initial application, supplemented by a statement describing the continuing nature of the employment in the United States. Extension requests are filed with the appropriate USCIS Service Center or at the port of entry for Canadians. Please also note that the above time limits do not apply for persons who are physically present in the United States for less than one hundred and eighty (180) days per year.
The TN visa is a special visa created under the NAFTA for Canadians who are entering the United States to engage in defined business activities to pursue employment under a strictly defined employment positional category such as Architect, Accountant, Computer Systems Analyst, Disaster Relief Insurance Claims Adjuster, Economist, Engineer, Forester, Graphic Designer, Hotel Manager, Industrial Designer, Interior Designer, Land Surveyor, Landscape Architect, Lawyer, Librarian, Management Consultant, Mathematician (and Statistician), Range Manager/Conservationist, Research Assistant, Scientific Technician/Technologist, Social Worker, Sylviculturist (and Forestry Specialist), Technical Publications Writer, Urban Planner and Vocational Counselor. There are specific educational requirements for each category. Each TN visa is valid for a validity date of up to three (3) years, renewable without limitation.
New Attorney Representation Requirements
Effective November 1st, 2009, the USCIS requires attorneys to complete the following forms in order to properly initiate representation of a client, which could include an individual or a company sponsor employer:
- Form G-28 which is for use by United States licensed attorneys only; and
- Form G-28I which is for use by foreign attorneys only.
Most importantly, Form G-28I is for attorneys admitted to the practice of law in countries other than the United States and may only be used in connection with immigration matters filed with United States government offices located outside the geographical confines of the United States. Thus, foreign attorneys are specifically excluded representing clients regarding any immigration matter at the border or pending in the U.S. In other words, only licensed United States attorneys may represent individuals for work/immigrant visa applications at the border or at the USCIS Service Center, which constitutes approximately ninety-five percent (95%) of all United States immigration matters.
Potential Dilemmas
What happens if an employee encounters problems at the border when applying for a work visa? Will the United States government authorities communicate with foreign attorneys regarding such issues? The short answer is no. Under the new rules, foreign attorneys, regardless of whether or not they are in-house, are prohibited from representing and thereby communicating or negotiating with the United States immigration authorities regarding any immigration matter pending within the United States or at the border, which could pose a serious problem for any Canadian company utilizing the relatively liberal rules of the North American Free Trade Agreement to obtain United States work visas for their Canadian workers at the border or from within the United States.
Proposed Action Plan
Make sure that only licensed United States attorneys handle in-house matters involving United States immigration laws and regulations. If no such attorney is employed at your company, we alternatively recommend contracting with an outside United States licensed attorney, so as to avoid any problems with representation of your employees in the future. It is therefore essential for companies to utilize attorneys who are licensed to practice law in the United States when dealing in matters involving United States immigration laws. Furthermore, with regards to employees applying for work visas in the United States, for the most part, the local United States immigration officials will only communicate with licensed United States attorneys if problems arise, which often is the situation.
Me Charles Leamy in collaboration with Me Jean-Philippe Brunet, CRHA, Ogilvy Renault
Article en français Représentation par les avocats canadiens en matière d’immigration aux États-Unis
Source : VigieRT, numéro 48, mai 2010.
