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

 Unlike the current G-28, which permits the entry of appearance of an attorney for a beneficiary, the proposed G-28 eliminates the check box for the beneficiary. The Service relies on 8 CFR §103.2(a)(3), which provides that a beneficiary is not a “party.” This interpretation of the right to representation is too narrowly drawn. For example, beneficiaries may be called for the purpose of giving testimony or other evidence under 8 CFR §103.2(b)(9), at which point the right to representation provided in 8 CFR §292.5(b) attaches. Moreover, in many petition proceedings, evidence from the beneficiary or testimony of the beneficiary is material to the petitioner’s case. Additionally, in nonimmigrant petition proceedings on Form I-129, several of the actions requested, e.g., change of the beneficiary’s status, extension of the beneficiary’s stay, amendment of the petition and change of the beneficiary’s stay, involve actions in which the beneficiary becomes an “applicant.” And, with respect to “permanent portability” under INA §204(j), AILA continues to urge that the beneficiary in an I-140 proceeding whose I-485 application has been pending for 180 days has acquired a vested interest in the outcome of the I-140 petition proceeding.

 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.