[Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)]
[Proposed Rules]
[Pages 59514-59543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24024]



  Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / 
Proposed Rules  

[[Page 59514]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001, 1003, 1103, 1212, and 1292

[EOIR Docket No. 176; A.G. Order No. 3564-2015]
RIN 1125-AA72


Recognition of Organizations and Accreditation of Non-Attorney 
Representatives

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the regulations governing the 
requirements and procedures for authorizing representatives of non-
profit religious, charitable, social service, or similar organizations 
to represent persons in proceedings before the Executive Office for 
Immigration Review (EOIR) and the Department of Homeland Security 
(DHS). The rule also proposes amendments to the regulations concerning 
EOIR's disciplinary procedures.

DATES: Electronic comments must be submitted and written comments must 
be postmarked on or before November 30, 2015. The electronic Federal 
Docket Management System at www.regulations.gov will accept electronic 
comments submitted prior to midnight Eastern Time at the end of that 
day.

ADDRESSES: Please submit written comments to Jean King, General 
Counsel, Office of the General Counsel, Executive Office for 
Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 22041. You may view an electronic version and 
provide comments via the Internet by using the www.regulations.gov 
comment form for this regulation. See Section I of the SUPPLEMENTARY 
INFORMATION section for more information.

FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free 
call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. The Department also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
Comments that will provide the most assistance to the Department in 
developing these procedures will reference a specific portion of the 
rule, explain the reason for any recommended change, and include data, 
information, or authority that supports such recommended change.
    All submissions received should include the agency name and 
reference RIN 1125-AA72 or EOIR Docket No. 176 for this rulemaking. 
When submitting comments electronically, you must include RIN 1125-AA72 
or EOIR Docket No. 176 in the subject box.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at 
www.regulations.gov. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONALLY 
IDENTIFYING INFORMATION'' in the first paragraph of your comment and 
identify what information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personally identifying information located as set forth above will 
be placed in the agency's public docket file, but not posted online. 
Confidential business information identified and located as set forth 
above will not be placed in the public docket file. To inspect the 
agency's public docket file in person, you must make an appointment 
with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT 
paragraph above for agency counsel's contact information.

II. Executive Summary

    The Executive Office for Immigration Review's (EOIR) Recognition 
and Accreditation (R&A) program addresses the critical and ongoing 
shortage of qualified legal representation for underserved populations 
in immigration cases before Federal administrative agencies. Through 
the R&A program, EOIR permits qualified non-attorneys to represent 
persons before the Department of Homeland Security (DHS), the 
immigration courts, and the Board of Immigration Appeals (BIA or 
Board). The specially qualified non-attorneys, known as accredited 
representatives, must be associated with and designated by a non-profit 
organization, known as a recognized organization. The non-profit 
organization must apply to EOIR for its recognition and for the 
accreditation of its qualified non-lawyers. Currently, there are more 
than 900 recognized organizations and more than 1,600 accredited 
representatives nationwide.\1\ The majority of accredited 
representatives are accredited to appear solely before DHS (known as 
``partially accredited representatives''). Less than 20 percent of the 
representatives are accredited to appear before DHS, the immigration 
courts, and the Board (known as ``fully accredited representatives'').
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    \1\ The numbers of recognized organizations and accredited 
representatives are current as of April 27, 2015. Visit the rosters 
of recognized organizations and accredited representatives for 
updated data at: http://www.justice.gov/eoir/recognition-accreditation-roster-reports (last visited Sept. 15, 2015).
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    The purpose of this proposed rule is to promote the effective and 
efficient administration of justice before DHS and EOIR by increasing 
the availability of competent non-lawyer representation for underserved 
immigrant populations. The proposed rule seeks to accomplish this goal 
by amending the requirements for recognition and accreditation to 
increase the availability of qualified representation for primarily 
low-income and indigent persons while protecting the public from fraud 
and abuse by unscrupulous organizations and individuals. The legal, 
financial, and emotional harm and exploitation perpetrated by notarios 
\2\ and other

[[Page 59515]]

unauthorized individuals against vulnerable immigrant populations is 
well-documented.\3\ Since June 2011, the Department of Justice 
(Department) has collaborated with DHS and the Federal Trade Commission 
in a national initiative to combat the unauthorized practice of 
immigration law.\4\ Numerous private and government entities have 
addressed notario fraud and the unauthorized practice of law through 
educational Web sites, outreach to the public, legislation, and Federal 
and state prosecutions.\5\ The proposed rule will assist these efforts 
by seeking to increase the number of recognized organizations and the 
availability of authorized and qualified immigration practitioners for 
underserved persons, which, in turn, should reduce the likelihood that 
such persons become the victims of immigration scams involving the 
unauthorized practice of law.
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    \2\ ``In many Latin American countries, the term `notario 
publico' (for `notary public') stands for something very different 
than what it means in the United States. In many Spanish-speaking 
nations, `notarios' are powerful attorneys with special legal 
credentials. In the [United States], however, notary publics are 
people appointed by state governments to witness the signing of 
important documents and administer oaths. `Notarios publico,' are 
not authorized to provide [persons before EOIR and DHS] with any 
legal services related to immigration.'' United States Citizenship 
and Immigration Services, Common Scams, http://www.uscis.gov/avoid-scams/common-scams (last updated Nov. 21, 2014) (emphasis added).
    \3\ See, e.g., Olivia Quinto, Note, ``In a Desert Selling 
Water'': Expanding the U-Visa to Victims of Notario Fraud and Other 
Unauthorized Practices of Law, 14 Rutgers Race & L. Rev. 203 (2013); 
Mary Dolores Guerra, Lost in Translation: Notario Fraud--Immigration 
Fraud, 26 J. C.R. & Econ. Dev. 23 (2011); Careen Shannon, Regulating 
Immigration Legal Service Providers: Inadequate Representation and 
Notario Fraud, 78 Fordham L. Rev. 577 (2009); Anne E. Langford, 
Note, What's in a Name?: Notarios in the United States and the 
Exploitation of a Vulnerable Latino Immigrant Population, 7 Harv. 
Latino L. Rev. 115 (2004).
    \4\ See Press Release, Department of Justice, Federal Agencies 
Announce National Initiative to Combat Immigration Services Scams 
(June 9, 2011), available at http://www.justice.gov/opa/pr/federal-agencies-announce-national-initiative-combat-immigration-services-scams (last visited Sept. 15, 2015).
    \5\ For example, the American Immigration Lawyers Association 
established a Web site to educate the public and to assist victims 
of notario fraud. See Stop Notario Fraud, http://www.stopnotariofraud.org/. Several states have enacted legislation 
to combat the unauthorized practice of law. See Travis B. Olsen, 
Combatting ``Notario Fraud'' Locally, 22 Berkeley LA Raza L.J. 383 
(2012); Milagros Cisneros, H.B. 2659: Notorious Notaries--How 
Arizona is Curbing Notario Fraud in the Immigrant Community, 32 
Ariz. St. L.J. 287 (2000). For examples of Federal and state 
prosecutions for fraud or the unauthorized practice of law, see 
Daniel M. Kowalski, Oregon Immigration Scammers Exposed, LexisNexis 
Legal Newsroom: Immigration Law (Jan. 7, 2014, 10:09 a.m.), http://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2014/01/07/oregon-immigration-scammers-exposed.aspx; Press Release, 
Department of Justice, U.S. Attorney's Office, D. Md., Ocean City 
Man Sentenced for Immigration Fraud (Feb. 26, 2014), available at 
http://www.justice.gov/usao/md/news/2014/OceanCityManSentencedForImmigrationFraud.html (last visited Sept. 
15, 2015); Press Release, Department of Justice, U.S. Attorney's 
Office, D.N.J., Former Atlantic City, N.J., Paralegal Charged with 
Mail Fraud Conspiracy (Feb. 26, 2014), available at http://www.justice.gov/usao/nj/Press/files/James,%20Maria%20Complaint%20News%20Release.html (last visited Sept. 
15, 2015); Press Release, Department of Justice, U.S. Attorney's 
office, S.D.N.Y., Liying Lin Found Guilty of Immigration Fraud 
Offenses Following One Week Jury Trial in Manhattan Federal Court 
(Feb. 26, 2014), available at http://www.justice.gov/usao/nys/pressreleases/February14/LiyingLinVerdict.php?print= (last visited 
Sept. 15, 2015).
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    The proposed rule seeks to accomplish these objectives by 
clarifying the process for applying for recognition and accreditation 
and facilitating the ability of organizations and representatives to 
serve persons before EOIR and DHS. At the same time, the proposed rule 
balances the potential increased availability of recognized 
organizations and accredited representatives with greater oversight and 
accountability for recognized organizations and accredited 
representatives.
    The rule proposes to transfer administration of the R&A program 
within EOIR from the Board to the Office of Legal Access Programs 
(OLAP); amend the qualifications for recognition of organizations and 
accreditation of their representatives; institute administrative 
procedures to enhance the management of the R&A roster; and update the 
disciplinary process to make recognized organizations, in addition to 
accredited representatives, attorneys, and other practitioners, subject 
to sanctions for conduct that contravenes the public interest.

III. Background

    With the exception of a technical amendment in 1997, the R&A 
regulations have remained unchanged since 1984.\6\ In the interim, the 
agencies responsible for the execution of the immigration laws have 
been restructured. Notably, DHS was established in 2002 and the 
functions of the former Immigration and Naturalization Service (INS) 
were transferred to DHS in 2003.\7\ Moreover, in April 2000, EOIR 
established the EOIR Pro Bono Program, now known as OLAP, under the 
Office of the EOIR Director. OLAP's mission is to improve access to 
legal information and counseling and increase rates of representation 
for persons appearing before the immigration courts and the Board.
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    \6\ Compare 8 CFR 292.2 (1985), with 8 CFR 1292.2 (2014).
    \7\ See Homeland Security Act of 2002, Public Law 107-296, 116 
Stat. 2135; 6 U.S.C. 101 et seq. Congress divided the functions of 
the INS among three new components: U.S. Citizenship and Immigration 
Services (USCIS), which generally is responsible for the 
administration of benefit applications; Immigration and Customs 
Enforcement (ICE), which generally is responsible for the 
enforcement of the immigration laws; and U.S. Customs and Border 
Protection, which is responsible for, inter alia, enforcement of 
immigration laws at and between the ports of entry.
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    EOIR has administered the R&A program for the past 30 years in the 
face of these structural changes in the government as well as the 
changing realities of the immigration system and of the ability of non-
profit organizations to meet the increased need for legal 
representation. During this time, EOIR, in consultation with DHS, has 
comprehensively examined the R&A regulations in light of various issues 
that have arisen and solicited input from the public on how to address 
the developments of the past 30 years in amended regulations.\8\ Most 
recently, in February 2012, EOIR invited public comment on possible 
amendments to the R&A Regulations, and in March and April of that year 
it held public meetings with interested stakeholders.\9\ The proposed 
rule is the product of these internal and external deliberations.
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    \8\ See 60 FR 57,200 (Nov. 14, 1995) (requesting public comment 
regarding possible changes in the qualifications required of an 
organization to be recognized by EOIR to represent persons before 
INS, the Board, and the immigration courts.).
    \9\ See 77 FR 9,590 (Feb. 17, 2012) (notice of two public 
meetings and request for comments); EOIR, Recognition and 
Accreditation Program, EOIR Public Meetings (Mar. 14, 2012 & Mar. 
21, 2012) (``R&A Public Meeting Minutes''), http://www.justice.gov/eoir/statspub/RAPublicMeetingMinutesSpring2012.pdf (last visited 
Sept. 15, 2015).
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IV. Description of the Provisions of the Proposed Rule

A. Transfer of R&A Program from the Board to OLAP

    Under the current R&A regulations, the Board approves or 
disapproves requests for recognition and accreditation, determines 
whether to withdraw recognition, and maintains a roster of recognized 
organizations and their accredited representatives.\10\ Given OLAP's 
mission to facilitate access to legal information and counseling and to 
increase the rates of representation for persons before EOIR and DHS, 
the Department has determined that OLAP is best suited to administer 
the R&A program and therefore proposes in this rule to transfer the 
program's administration from the Board to OLAP.\11\
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    \10\ The Board also has the authority, after the EOIR or DHS 
disciplinary counsel initiates disciplinary proceedings, to impose 
disciplinary sanctions--such as disbarment, suspension, or a 
censure--on accredited representatives who engage in criminal, 
unethical, or unprofessional conduct before the immigration courts, 
the Board, or DHS. Under the proposed rule, the Board maintains its 
authority to impose disciplinary sanctions on accredited 
representatives while also having new authority to impose 
disciplinary sanctions on recognized organizations.
    \11\ As of the effective date of this rule, the Board will no 
longer have authority under 8 CFR 1003.1(d)(5) to determine whether 
to recognize organizations and accredit representatives to provide 
representation before the Immigration Courts, the Board, and DHS, or 
DHS alone. Under 8 CFR 1003.0(f)(2), OLAP will have the sole 
authority to do so.

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    For over a decade, OLAP has been responsible for overseeing legal 
orientation programs and for facilitating access to pro bono 
representation and self-help educational materials for individuals in 
immigration proceedings. OLAP is best suited to administer the R&A 
program because it is dedicated to fostering access to legal 
representation in immigration cases. OLAP executes this mission 
primarily through programs and initiatives that facilitate access to 
information (including self-help materials) and that create incentives 
for attorneys and law students to handle pro bono immigration cases. 
OLAP is responsible for administering the Legal Orientation Program, 
the Legal Orientation Program for Custodians of Unaccompanied Alien 
Children, the BIA Pro Bono Project, the Model Hearing Program, and the 
newly created National Qualified Representative Program.\12\ With the 
transfer of the R&A program to OLAP, OLAP will now manage the entire 
spectrum of EOIR programs designed to facilitate access to legal 
representation in immigration proceedings.
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    \12\ In April 2013, the Departments of Justice and Homeland 
Security announced a nationwide policy to provide enhanced 
safeguards and procedural protections to unrepresented immigration 
detainees with indicia of mental incompetence. See Notice, 
Department of Justice and Department of Homeland Security Announce 
Safeguards for Unrepresented Immigration Detainees with Serious 
Mental Disorders or Conditions (Apr. 22, 2013), available at http://www.justice.gov/eoir/pages/attachments/2015/04/21/safeguards-unrepresented-immigration-detainees.pdf (last visited Sept. 15, 
2015). These safeguards include the provision of a Qualified 
Representative to any unrepresented detainee found mentally 
incompetent to represent him- or herself in immigration proceedings.
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    OLAP currently is not designated as an EOIR component in the 
regulations. The proposed rule would formalize OLAP's structure and 
function as a component of EOIR and transfer the administration of the 
R&A program from the Board to OLAP. Under the proposed rule, OLAP would 
have the authority to approve or disapprove requests for recognition 
and accreditation, to maintain a roster of recognized organizations and 
their accredited representatives, and to administratively terminate an 
organization or a representative.

 B. Recognition and Accreditation

    As outlined below, the proposed rule would make significant changes 
to the process and qualifications for requesting and renewing 
recognition and accreditation, with the express purpose of increasing 
capacity while maintaining adequate standards for recognition and 
accreditation.
1. Recognition Qualifications
    To be recognized under the current R&A regulations, an organization 
must: be a non-profit religious, charitable, social service, or similar 
organization established in the United States; make only nominal 
charges and assess no excessive membership dues for its services; and 
have adequate knowledge, information, and experience at its disposal. 
The proposed rule retains the non-profit requirement with the 
additional requirement to demonstrate Federal tax-exempt status. The 
proposed rule also retains the adequate knowledge, information, and 
experience requirement. The proposed rule replaces the nominal fee 
requirement with requirements that shift the singular focus from fees 
to the organization's other sources of revenue and whether the 
organization is primarily serving low-income and indigent clients. The 
proposed rule also requires, in contrast with the current regulations, 
that an organization must have an authorized officer to act on its 
behalf and at least one accredited representative to be recognized and 
maintain recognition.
a. Accredited Representative Required
    The proposed rule would require that an organization have at least 
one accredited representative to be recognized, to maintain 
recognition, and to have its recognition renewed. Currently, the R&A 
regulations do not include such a requirement and, as a result, some 
organizations that have only attorneys (and no accredited 
representatives) on staff have been recognized. An organization with 
only attorneys on staff does not need to seek recognition because 
attorneys already are authorized to appear before DHS, the immigration 
courts, and the Board as long as they are eligible to practice law, are 
members in good standing of a bar, and are not under any order 
restricting or prohibiting their practice of law.\13\ However, an 
organization with both attorneys and non-attorneys (or only non-
attorneys) on staff must qualify for recognition in order for its non-
attorney members to be accredited to represent persons before DHS, the 
immigration courts, or the Board. This proposed requirement accords 
with the main purpose of recognition, which is to authorize 
organizations to provide affordable, qualified immigration legal 
services to underserved immigrant populations through non-attorneys (as 
opposed to attorneys).
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    \13\ See 8 CFR 1001.1(f); see also id. Sec. Sec.  292.1(a)(1), 
1292.1(a)(1). Non-profit organizations with only attorneys on staff 
who provide free or pro bono legal services may apply to be on the 
List of Pro Bono Legal Service Providers. See 8 CFR 1003.61 et seq.
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b. Non-Profit With Federal Tax-Exempt Status
    The current regulations require organizations to demonstrate non-
profit status for recognition. The proposed rule would require an 
organization to establish both that it is a non-profit religious, 
charitable, social service, or similar organization established in the 
United States and that it is federally tax-exempt.\14\
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    \14\ Non-profit status and Federal tax-exempt status are 
different concepts. Non-profit status is a state law concept that 
allows organizations to receive benefits at the state level like tax 
exemptions. Organizations with non-profit status are not 
automatically granted Federal tax-exempt status, although most 
Federal tax-exempt organizations are non-profit organizations. See 
Internal Revenue Service, Applying for Exemption--Difference Between 
Non-Profit and Tax-Exempt Status, http://www.irs.gov/Charities-&-Non-Profits/Applying-for-Exemption-Difference-Between-Nonprofit-and-Tax-Exempt-Status (last visited Sept. 15, 2015).
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    The proposed requirement to demonstrate Federal tax-exempt status 
provides a means of confirming that organizations requesting 
recognition are legitimate non-profit organizations.\15\ Specifically, 
Federal tax-exempt status ensures that an organization seeking 
recognition has been or will be independently evaluated by the Internal 
Revenue Service (IRS) to confirm that it is not engaging in for-profit 
activities, and subjects the organization to IRS oversight if the 
organization does not comply with the requirements for its tax-exempt 
status. An organization may satisfy this requirement by submitting an 
IRS tax-exemption determination letter approving tax-exempt status 
under 26 U.S.C. 501(c)(3) \16\ or some other section of the Federal tax 
code, or by submitting another document that demonstrates the 
organization is tax-

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exempt.\17\ If an organization has not yet received an IRS tax-
exemption determination letter at the time it applies for recognition, 
it may satisfy this requirement by submitting proof that it has applied 
for Federal tax-exempt status. This alternative method of demonstrating 
tax-exempt status will permit newly formed organizations to obtain 
conditional recognition and start providing services while their 
applications for tax exemptions are pending. However, an organization 
that obtains recognition in this manner should obtain a favorable tax-
exemption determination letter by the time it seeks renewal of 
recognition. An organization's failure to do so may adversely affect 
its eligibility for renewal.
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    \15\ An organization may still be eligible for recognition if it 
can show that Federal tax-exempt status is not required separately 
for the organization. For example, an organization may show that it 
is part of a group exemption as a subordinate of a larger 
international or national tax-exempt organization.
    \16\ See 26 U.S.C. 501(c)(3) (stating that an organization is 
tax-exempt if it is ``organized and operated exclusively for 
religious, charitable, scientific, testing for public safety, 
literary, or educational purposes, or to foster national or 
international amateur sports competition . . ., or for the 
prevention of cruelty to children or animals, no part of [its] net 
earnings . . . inures to the benefit of any private shareholder or 
individual, no substantial part of [its] activities . . . is 
carrying on propaganda, or otherwise attempting, to influence 
legislation,'' and it ``does not participate in, or intervene in . . 
. any political campaign on behalf of (or in opposition to) any 
candidate for public office'').
    \17\ Organizations currently may submit, based on agency 
guidance, a tax determination letter to demonstrate eligibility for 
recognition. EOIR, Recognition and Accreditation (R&A) Program, 
http://www.justice.gov/sites/default/files/pages/attachments//2015/05/13/randafaqsprintableversion.pdf (last visited Sept. 15, 2015).
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    While classification as a 501(c)(3) federally tax-exempt 
organization may be sufficient to show that an organization is a non-
profit religious, charitable, social service, or similar organization 
for tax purposes, the proposed rule neither presumes that 501(c)(3) 
organizations have non-profit religious, charitable, social service, or 
similar purposes for recognition purposes, nor limits recognition to 
organizations that are tax-exempt under section 501(c)(3). 
Organizations that apply for or obtain Federal tax exemptions under 
section 501(c)(3) or other sections of the Federal tax code may only 
receive recognition if they also show that they are non-profit 
religious, charitable, social service, or similar organizations 
providing free or reduced-cost immigration legal services to primarily 
low-income and indigent persons.\18\ Consistent with current agency 
guidance, an organization may do so with its charter, by-laws, articles 
of incorporation, or similar documents that show its religious 
charitable, social service, or similar mission.\19\
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    \18\ The legitimacy of a non-profit organization would be 
particularly scrutinized in circumstances where, for example: (1) A 
commercial enterprise or for-profit business, such as a travel, 
insurance, real estate, or tax business, is operated at the same 
location as the non-profit organization seeking recognition; (2) the 
non-profit organization receives funding from a for-profit business 
operated at the same location as the non-profit; or (3) the proposed 
representative or other employees of the non-profit organization 
also work for, or are closely associated with, a for-profit 
business. See Matter of St. Francis Cabrini Immigration Law Center, 
26 I&N Dec. 445, 447 (BIA 2014).
    \19\ EOIR, Recognition and Accreditation (R&A) Program, http://www.justice.gov/sites/default/files/pages/attachments//2015/05/13/randafaqsprintableversion.pdf (last visited Sept. 15, 2015).
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c. Elimination of Nominal Charges Requirement
    The proposed rule would eliminate the ``nominal charges'' 
requirement contained in the current regulations.\20\ The purpose of 
that requirement had been to ensure that organizations are in fact 
charitable or similar social services organizations; they are serving 
low-income or indigent clients; and they are not representing clients 
for profit.\21\ However, the nominal charges requirement has been 
repeatedly criticized over the years as a barrier to affordable, 
quality legal services to vulnerable populations.\22\ Commenters have 
asserted that some well-qualified organizations do not apply for 
recognition because of the restriction, and that others are unable to 
meet the demand for their services due to the financial constraints it 
imposes. They have stated that the assessment of more than nominal fees 
in some cases is necessary because charitable grants and private 
funding can be unreliable and because, for example, organizations in 
rural versus urban areas have distinct needs and expenses that create a 
need for more than nominal fees. Furthermore, they claim that different 
cases may require higher fees because of their complexity or because 
they include the provision of both legal and social services.\23\
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    \20\ See 8 CFR 1292.2(a)(1) (requiring that an organization 
demonstrate that it ``makes only nominal charges and assesses no 
excessive membership dues for persons given assistance''). In 
applying the standard, the Board has not defined ``nominal charges'' 
in terms of specific dollar amounts but stated that it refers to `` 
`something existing in name only as distinguished from something 
real or actual.' '' Matter of Ayuda, 26 I&N Dec. 449, 450 (BIA 2014) 
(quoting Matter of American Paralegal Academy, Inc., 19 I&N Dec. 
386, 387 (BIA 1986)).
    \21\ 60 FR 57,200, 57,200 (Nov. 14, 1995); see Matter of Ayuda, 
26 I&N Dec. at 450 (``The fees must be consistent with the purpose 
and spirit of the recognition and accreditation program, which is to 
provide competent immigration services to low-income and indigent 
persons.'').
    \22\ 60 FR at 57,200; R&A Program Comments at 2, 58 (Mar. 14, 
2012 & Mar. 21, 2012) (on file with EOIR; forthcoming on 
www.regulations.gov with proposed rule); American Immigration 
Lawyers Association, Comments on Public Meetings Related to the 
Regulations Governing the EOIR Recognition and Accreditation 
Program, 8 CFR 1292, at 3-4 (Apr. 4, 2012) (``AILA Comments''), 
available at http://www.aila.org/File/DownloadEmbeddedFile/37635 
(last visited Sept. 15, 2015).
    \23\ 60 FR at 57,200; R&A Public Meeting Minutes at 2; R&A 
Program Comments at 3, 8-9, 34-35, 37, 47, 53, 58, 66-67, 77-78; 
AILA Comments at 3.
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    At the same time, a commenter expressed concern about allowing 
organizations that charge more than nominal fees to obtain 
recognition.\24\ Higher fees may place organizations in competition 
with members of the bar for clients that can afford legal services, 
which would contravene the R&A program's goal to serve primarily low-
income and indigent clients.\25\ Higher fees could also lead 
unscrupulous organizations and individuals to seek recognition and 
accreditation so that they could profit from exploiting clients.
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    \24\ AILA Comments at 3; R&A Program Comments at 58.
    \25\ AILA Comments at 3-4; R&A Program Comments at 58-59.
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    Recognizing the concerns with the nominal fees requirement, and to 
increase the number and sustainability of recognized organizations able 
to provide immigration legal services to indigent and low-income 
persons before EOIR and DHS, the Board recently updated and clarified 
its interpretation of the ``nominal charges'' requirement in Matter of 
Ayuda, 26 I&N Dec. 449 (BIA 2014). The Board stated that the ``nominal 
charges'' requirement requires an individualized assessment of the 
organization, including its geographic location, the services provided, 
and the manner of delivery of services, to determine whether its fee 
structure comports with the goal of providing low-cost legal services, 
rather than simply serving the interests of the organization.\26\ The 
proposed rule adopts a similar approach to assessing each organization, 
but proposes to shift the focus away from an organization's fee levels 
to the organization's funding sources and budget while still requiring 
that organizations serve the neediest of persons. Under the proposed 
rule, there is no longer a ``nominal charges'' requirement and 
organizations have greater flexibility in assessing fees.
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    \26\ Matter of Ayuda, 26 I&N Dec. at 451, 452-53.
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d. Substantial Amount of Budget Is Not Derived From Client Charges
    The proposed rule would generally require an organization to 
demonstrate that a ``substantial amount of the organization's 
immigration legal services budget is derived from sources other than 
funds provided by or on behalf of the immigration clients themselves 
(such as legal fees, donations, or membership dues).'' This proposed 
requirement reflects the fact that a legitimate non-profit organization 
providing immigration legal services to low-income and indigent clients 
generally supports its operations through various sources of outside 
funding and not solely or entirely

[[Page 59518]]

through charges of the clients themselves.\27\
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    \27\ See id. at 453 (approving application for recognition with 
the acknowledgement that the ``organization's budget and funding 
demonstrate that it is substantially supported by grants and is not 
dependent primarily on client fees for its operations'').
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    To satisfy the ``substantial amount'' requirement under the 
proposed rule, an organization must submit its annual budget for 
providing immigration legal services for the current year and, if 
available, its annual budget for providing immigration legal services 
for the prior year. If both such budgets are unavailable, the 
organization must submit its projected annual budget for providing 
immigration legal services for the upcoming year. The organization's 
budget, whether actual or projected, should identify its revenue and 
expenses attributable to immigration legal services. The revenue should 
include the amount of fees, membership dues, and donations \28\ 
received or expected from the organization's immigration clients for 
immigration legal services and the sources and amounts of grants and 
monetary and in-kind donations, such as documented donations of office 
space, equipment, or volunteer services. The organization should also 
identify its investment and fundraising income, real estate, and other 
assets.
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    \28\ Not all donations an organization receives from immigration 
clients are donations for immigration legal services. However, to 
the extent that an organization conditions the provision of legal 
services on donations suggested or otherwise encouraged by the 
organization, the donations received are for immigration legal 
services.
---------------------------------------------------------------------------

    The proposed rule would require OLAP to review the organization's 
funding sources. In doing so, the rule does not identify a specific 
formula or percentage to be used to measure a ``substantial'' amount. 
Rather, under the proposed rule, OLAP would make a determination 
looking at the totality of the organization's circumstances. For 
example, an organization with an annual immigration legal services 
budget funded by either no immigration client fees, membership dues, or 
donations, or with a quarter (or less) of its annual immigration legal 
services budget provided by such funding would likely meet the 
``substantial amount'' requirement. Similarly, an organization may 
demonstrate that it has no need for client fees, membership dues, or 
donations from its immigration clients to support its organization 
because, for example, it is a religious organization that receives in-
kind donations of office space, equipment, and supplies and relies on 
volunteers or members of a religious congregation who provide legal 
services at little cost to the organization.
    On the other hand, the greater the amount of funding an 
organization derives from fees, membership dues, or donations provided 
by or on behalf of immigration clients, the more likely the 
organization will not be able to meet the ``substantial amount'' 
requirement. For instance, an organization whose legal services budget 
is based on unreliable funding sources, such as projected revenue from 
small special events (e.g., bake sales or garage sales, as opposed to 
an annual gala) would likely be impermissibly dependent on immigration 
client fees. Similarly, an organization that has high salaries, rent, 
and other expenses, is more likely to be overly dependent on 
immigration client fees, membership dues, or donations and would be 
unlikely to satisfy the substantial amount requirement.
    In limited circumstances, the proposed rule would authorize OLAP to 
grant a waiver of the ``substantial amount'' requirement where an 
organization persuasively demonstrates that the waiver is in the public 
interest. ``Public interest'' factors to be considered include: The 
geographic location of the organization; the manner in which legal 
services are to be delivered; the types of immigration legal services 
offered; and the population to be served. The history and reputation of 
the organization in its community and the qualifications of its staff 
may also be considered in the assessment. Organizations likely to be 
considered for the waiver may be, for example, operating in an 
underserved area, such as a remote detention facility, or providing 
assistance to vulnerable or economically disadvantaged populations, 
such as mentally incompetent persons, unaccompanied minors, or 
adjustment of status self-petitioners under the Violence Against Women 
Act (VAWA).
e. Serving Primarily Low-Income and Indigent Persons
    In order to avoid recognizing organizations with for-profit motives 
and to advance the requirement that organizations have a religious, 
charitable, social service, or similar purpose, the proposed rule would 
require an organization to establish that it provides immigration legal 
services primarily to low-income and indigent clients. Neither the term 
``primarily'' nor the term ``low-income'' is defined in the proposed 
rule. Most commenters following the March 14, 2012, stakeholder meeting 
eschewed a proposed rule defining ``low-income.'' They stated that 
organizations need flexibility in deciding which clients they serve 
because organizations are often unable to verify the income of 
clients.\29\ They also expressed a concern that an income restriction 
may limit the client populations served and prevent recognized 
organizations from serving a set of individuals in need of legal 
services but unable to afford an attorney.\30\ As a result, the 
proposed rule does not define low-income or indigent in terms of a 
specific amount of income or limit eligibility for recognition to 
organizations that exclusively serve low-income and indigent persons.
---------------------------------------------------------------------------

    \29\ See, e.g., AILA Comments at 4; R&A Program Comments at 3, 
9, 59, 68, 72-73, 79.
    \30\ R&A Program Comments at 9-10, 28-29, 36, 72, 79-80.
---------------------------------------------------------------------------

    Organizations, however, have the burden of demonstrating that they 
provide immigration legal services ``primarily'' to ``low-income and 
indigent'' persons. While income and expenses for clients will vary 
nationwide and each organization should have flexibility to determine 
which clients are ``low-income and indigent'' and eligible for 
services, each organization nevertheless should have guidelines for 
determining whether clients are ``low-income and indigent'' so that 
OLAP may assess whether the organization's guidelines reasonably ensure 
that its services will be primarily directed toward low-income and 
indigent persons. For example, an organization may use a particular 
percentage from the annual Federal poverty guidelines issued by the 
Department of Health and Human Services as a benchmark to determine 
whether a person meets the threshold for free or reduced cost legal 
services.\31\ An organization may also use other factors to assess 
whether those who receive its services are ``low-income and indigent,'' 
particularly when its clients do not have pay stubs, bank accounts, or 
other verifiable statements of income.
---------------------------------------------------------------------------

    \31\ See 80 FR. 3,236, 3,237 (Jan. 22, 2015) (Department of 
Health and Human Services 2015 poverty guidelines).
---------------------------------------------------------------------------

    Requiring recognized organizations to serve primarily low-income 
and indigent clients necessarily affects the magnitude of legal fees, 
membership dues, or donations, if any, that an organization may charge 
or request. Charging or requesting excessive fees, membership dues, or 
donations would not be consistent with the aim of serving primarily 
low-income and indigent clients.\32\ An organization that charges

[[Page 59519]]

or requests such fees, dues, or donations would be less likely to 
primarily serve low-income and indigent clients, who have a limited 
ability to pay fees, and would be more likely to have an impermissible 
profit-seeking motive and prey upon vulnerable populations. Thus, while 
fees, dues, and donations for immigration legal services are not 
defined under the proposed rule, recognized organizations are expected 
to limit fees, dues, and donations charged or requested so that low-
income and indigent clients are able to access the organization's 
immigration legal services. Any fees, membership dues, or donations for 
immigration legal services should be listed in an itemized fee schedule 
with a description of when and how they are waived or reduced. 
Organizations are required to provide their fee schedules (if any) to 
OLAP when applying for or renewing recognition and must otherwise make 
them readily available to clients and OLAP. OLAP will scrutinize any 
fees, membership dues, or donations charged or requested in evaluating 
the totality of the organization's funding and whether it is serving 
primarily low-income and indigent clients. Legal fees, membership dues, 
or donations charged or requested by a recognized organization are 
expected to be at a rate meaningfully less than the cost of hiring 
competent private immigration counsel in the same geographic area.
---------------------------------------------------------------------------

    \32\ Cf. 8 CFR 1292.2(a)(1) (requiring that an organization 
demonstrate that it ``makes only nominal charges and assesses no 
excessive membership dues for persons given assistance'').
---------------------------------------------------------------------------

    At the same time, the proposed rule does not prohibit a recognized 
organization from serving a limited number of clients regardless of 
income.\33\ In serving these clients, however, a recognized 
organization would not be permitted to charge or request legal fees, 
membership dues, or donations that are greater than those that it 
charges or requests from low-income and indigent clients.\34\
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    \33\ For instance, an organization may continue its 
representation of a previously indigent client who improves his or 
her financial status during the course of representation in order to 
provide continuity of qualified legal services. An organization may 
also provide legal services to a limited number of clients 
regardless of income if those persons are particularly vulnerable 
(e.g., they are illiterate, have limited English proficiency, or 
have little or no formal education), or if the organization is the 
only available and qualified provider of immigration legal services 
in its area.
    \34\ To be clear, the requirements of this rule would be 
applicable only to organizations that apply for and are approved for 
recognition from EOIR under this rule, and thereby elect to make 
themselves subject to these requirements as a condition of 
eligibility for recognition.
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f. Adequate Knowledge, Information, and Experience
    The current R&A regulations require an organization to ``ha[ve] at 
its disposal adequate knowledge, information and experience'' to be 
recognized.\35\ The proposed rule would maintain this requirement but 
also identify the proof necessary to satisfy the requirement in accord 
with Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), and Matter of 
Lutheran Ministries of Florida, 20 I&N Dec. 185 (BIA 1990). 
Specifically, the organization must describe, among other things: The 
services it intends to offer; the legal resources to which it has 
access; its staff's qualifications and breadth of immigration 
knowledge; formal trainings attended by staff; and agreements with non-
staff immigration practitioners or other organizations for 
consultations or technical legal assistance.\36\
---------------------------------------------------------------------------

    \35\ 8 CFR 1292.2(a)(2).
    \36\ See Matter of EAC, Inc., 24 I&N Dec. at 558-62.
---------------------------------------------------------------------------

    Although attorney mentors are encouraged,\37\ the proposed rule 
does not require an attorney on staff or attorney supervision of 
accredited representatives, as some commenters proposed, due to cost 
and feasibility concerns.\38\ Ultimately, the organization must show 
that it has the resources to adequately monitor its accredited 
representatives as well as sufficient knowledge, information, and 
experience to provide competent legal assistance on immigration matters 
for which it provides services.
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    \37\ An organization associated with an attorney who is not on 
staff but who provides consultations or technical legal assistance 
to the organization's accredited representatives is expected to 
demonstrate the degree of interaction and association with the 
attorney, and to state if the attorney charges a fee for such 
assistance. Recognition should not be misused as a means for 
organizations to engage in for-profit referrals or fee sharing with 
private counsel. See Matter of Baptist Educational Center, 20 I&N 
Dec. 723, 736 (BIA 1993).
    \38\ R&A Program Comments at 13, 20, 31, 43,51, 62, 70. 74.
---------------------------------------------------------------------------

g. Authorized Officer
    The proposed rule would require an organization to designate an 
authorized officer, who is empowered to act on its behalf for all 
matters related to recognition and accreditation. This requirement will 
facilitate accountability and communication between OLAP and the 
organization. The president, secretary, executive director, or other 
designated individual of the organization may serve as the authorized 
officer of the organization.
2. Accreditation Qualifications
    To be accredited under the current R&A regulations, an individual 
must have good moral character. The current regulations also require 
the organization to describe an individual's knowledge of and 
experience in immigration law and procedure without specifying a 
minimum standard of knowledge and experience. The proposed rule 
replaces the good moral character requirement with a character and 
fitness requirement that seeks to more comprehensively examine an 
individual's suitability to represent clients. The proposed rule also 
explicitly requires that individuals be an employee or volunteer of the 
organization to be accredited so that they are subject to the 
supervision and direction of the organization. The proposed rule 
clarifies the amount of knowledge and experience required by adopting a 
broad knowledge and adequate experience standard the Board has applied. 
Finally, the proposed rule precludes attorneys as defined by 8 CFR 
1001.1(f) and individuals who have been convicted of a serious crime or 
who are under an order restricting their practice of law from being 
accredited.
a. Character and Fitness
    Whereas the current R&A regulations require that a proposed 
accredited representative be a person of ``good moral character,'' \39\ 
the proposed rule instead would require an organization to affirm that 
its proposed representative possesses the ``character and fitness'' to 
represent clients before the immigration courts, the Board, or DHS. The 
proposed rule's character and fitness requirement allows for a more 
comprehensive examination of a proposed representative's suitability to 
represent clients, which is similar to the standards and principles of 
fitness that state bars apply to applicants for admission.\40\ The 
character and fitness requirement is meant to ensure that an accredited 
representative possesses the honesty, trustworthiness, diligence, 
professionalism, and reliability to execute his or her fiduciary duties 
and professional responsibilities to clients, adversaries, and 
adjudicators through an examination of factors such as: criminal

[[Page 59520]]

background; prior acts involving dishonesty, fraud, deceit, or 
misrepresentation; and past history of neglecting professional, 
financial, or legal obligations.\41\
---------------------------------------------------------------------------

    \39\ 8 CFR 1292.2(d).
    \40\ See National Conference of Bar Examiners and American Bar 
Association Section of Legal Education and Admissions to the Bar, 
Comprehensive Guide to Bar Admission Requirements 2015, at vii, 4-7, 
http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2015_comprehensive_guide_to_bar_admission_requirements.authcheckdam.pdf (last visited Sept. 15, 2015); Virginia Board of Bar Examiners, 
Character and Fitness Requirements, http://barexam.virginia.gov/cf/cfreq.html (last visited Sept. 15, 2015) (applicant for bar 
admission must demonstrate, inter alia, ``honest demeanor'' and 
``good moral character''); Pennsylvania Board of Law Examiners, What 
are the Character and Fitness Standards?, http://www.pabarexam.org/c_and_f/cffaqs/2.htm (last visited Sept. 15, 2015); N.H. Sup. Ct. R. 
42B(II) (character and fitness standards include proving ``good 
moral character'').
    \41\ The character and fitness requirement also avoids potential 
confusion created by the ``good moral character'' requirement, which 
is a term of art used to establish eligibility for relief under the 
Immigration and Nationality Act. See 8 U.S.C. 1101(f).
---------------------------------------------------------------------------

    An individual's current immigration status is also a separate 
factor in the fitness determination because of the inherent conflict in 
having accredited representatives represent individuals before the same 
immigration agencies before whom they are actively appearing in their 
personal capacities. Moreover, an individual's immigration status may 
affect whether immigration practitioners can continue their 
representation of clients throughout the pendency of their clients' 
immigration matters. Therefore, the Department is seeking input from 
the public regarding the parameters of this factor, and is considering 
whether individuals seeking accreditation must, for example, have 
employment authorization or not be in active proceedings before DHS or 
EOIR.
    The character and fitness requirement may be satisfied by the 
signatures of the organization and its proposed representative on the 
request for accreditation (Form EOIR-31A), attesting that the proposed 
representative has the requisite character and fitness. The signatures 
affirm that the proposed representative has, among other things, a 
record of honesty, trustworthiness, diligence, professionalism, and 
reliability. The signatures also attest that the proposed 
representative's work will be performed in the United States. 
Additional documentation, such as a favorable background check and 
letters of recommendation attesting to the individual's good character, 
may also support the character and fitness requirement for 
accreditation.\42\
---------------------------------------------------------------------------

    \42\ If a proposed representative has an issue in his or her 
record that may affect the character and fitness determination, the 
organization and the proposed representative should address that 
issue in the request for accreditation and produce any relevant 
documentation so that OLAP can determine whether the proposed 
representative satisfies the character and fitness standard.
---------------------------------------------------------------------------

b. Employee or Volunteer
    The proposed rule would explicitly require that a proposed 
representative for accreditation be subject to the direction and 
supervision of the organization as either its employee or its 
volunteer.\43\ In order to demonstrate that this requirement is 
satisfied, the organization and its proposed representative must sign 
Form EOIR-31A attesting to the employment or volunteer relationship.
---------------------------------------------------------------------------

    \43\ Under the current R&A regulations, an accredited 
representative's employment or connection to a recognized 
organization is presumed. See 8 CFR 1292.2(d) (``Accreditation 
terminates . . . when the representative's employment or other 
connection with the organization ceases.''). Under 8 U.S.C. 1324a, 
recognized organizations must verify that their accredited 
representative employees are authorized to work in the United 
States.
---------------------------------------------------------------------------

c. Broad Knowledge and Adequate Experience
    The proposed rule would require an organization to show that a 
proposed representative possesses ``broad knowledge and adequate 
experience in immigration law and procedure'' and that a proposed 
representative for whom the organization seeks full accreditation has 
``skills essential for effective litigation.'' Under the current R&A 
regulations, organizations are simply required to describe ``the nature 
and extent of the proposed representative's experience and knowledge of 
immigration and naturalization law and procedure.'' \44\ The intent of 
the proposed rule is to follow the Board's precedential decisions in 
Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008),\45\ and Matter of 
Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 
2013),\46\ which specified the knowledge and experience sufficient to 
warrant accreditation.
---------------------------------------------------------------------------

    \44\ 8 CFR 1292.2(d).
    \45\ In Matter of EAC, the Board explained that an accredited 
representative must have broad knowledge so that he or she is ``able 
to readily identify immigration issues of all types, even in areas 
where no services are provided, and has the ability to discern when 
it is in the best interests of the aliens served to refer those with 
more complex immigration issues elsewhere.'' 24 I&N Dec. at 564. The 
Board, however, did not require a level of experience equal to the 
accredited representative's knowledge. Rather, it acknowledged that 
an accredited representative's experience with immigration law 
``need not be fully commensurate with his or her knowledge to be 
considered adequate.'' Id. The Board further noted that fully 
accredited representatives had to ``possess skills essential for 
effective litigation,'' such as the ability to engage in oral and 
appellate advocacy, present documentary evidence and question 
witnesses, and prepare motions and briefs. Id.
    \46\ In Matter of Central California Legal Services, Inc., the 
Board found that a successful application for accreditation must 
show that the proposed representative ``recently completed at least 
one formal training course designed for new practitioners and that 
the training provided a solid overview of the fundamentals of 
immigration law and procedure.'' 26 I&N Dec. at 106.
---------------------------------------------------------------------------

    The proposed rule does not establish a required number of formal 
training hours, specific courses, or testing to show broad knowledge 
and experience for initial accreditation or for renewal of 
accreditation, although some commenters recommended doing so.\47\ While 
such requirements would be helpful in establishing minimum standards of 
knowledge and experience, imposing these requirements by regulation 
would limit OLAP's flexibility to adapt them to the ever-changing 
immigration legal landscape, might result in increased costs to 
organizations, and could overlook the unique training needs of 
organizations that provide legal services to particular populations and 
offer specialized services.\48\ Nonetheless, OLAP may recommend 
education, testing, training courses and hours, or internships that 
could be sufficient to satisfy the broad knowledge and adequate 
experience requirement for accreditation.\49\
---------------------------------------------------------------------------

    \47\ R&A Public Meeting Minutes at 4-5; R&A Comments at .2, 3, 
10, 20-21, 24-25, 29, 49. 54, 60, 65; AILA Comments at 5.
    \48\ See R&A Public Meeting Minutes at 4-5; R&A Comments at 43, 
49, 55, 73.
    \49\ OLAP anticipates meeting with stakeholders to develop 
``best practices'' guidelines. In the future, OLAP may also consider 
undertaking a separate rulemaking process to establish certification 
standards for training providers.
---------------------------------------------------------------------------

d. No Attorneys, No Orders Restricting Practice of Law or 
Representation, No Serious Crimes
    The proposed rule would restrict accreditation to non-attorneys and 
individuals who have not been convicted of a serious crime and are not 
subject to an order restricting their practice of law. The proposed 
rule also bars attorneys licensed in the United States from 
accreditation because accreditation is not necessary for attorneys to 
represent clients before EOIR or DHS, and thus granting them 
accreditation would serve no meaningful purpose.\50\
---------------------------------------------------------------------------

    \50\ See 8 CFR 1001.1(f), 1292(a)(1).
---------------------------------------------------------------------------

    Currently, the regulations allow the Board to sanction (i.e., 
through suspension, disbarment, censure, or otherwise) accredited 
representatives who are subject to a final order of disbarment of 
suspension, who resign while a disciplinary investigation or proceeding 
is pending, or who have been convicted of a serious crime.\51\ The 
proposed rule largely reiterates these restrictions,\52\ but extends 
the serious crime restriction to cover foreign as well as domestic 
serious crime convictions. This is because individuals for whom 
accreditation is sought may have been convicted of serious crimes while 
living or residing in foreign countries. The

[[Page 59521]]

decision to use those convictions as a disqualifying factor for 
accreditation is not unique, as foreign convictions are given 
collateral effects under Federal immigration law. See, e.g., 8 U.S.C. 
Sec.  1101(a)(43) (stating that the term ``aggravated felony'' applies 
to certain ``offense[s] in violation of the law of a foreign 
country'').
---------------------------------------------------------------------------

    \51\ See 8 CFR 1003.101(a), 1003.102(e), (h).
    \52\ The prohibition against accrediting individuals who are 
subject to an order restricting their practice of law is primarily 
directed at preventing attorneys who have been suspended or 
disbarred from becoming accredited and thereby circumventing the 
order of suspension or disbarment.
---------------------------------------------------------------------------

    In order to demonstrate that the above qualifications are 
satisfied, the organization and its proposed representative must sign 
Form EOIR-31A attesting that the representative is not an attorney 
licensed to practice in the United States; is not subject to an order 
restricting his or her practice of law or representation before a court 
or administrative agency; and has not been convicted of a serious 
crime.
3. Applying for Recognition and Accreditation
    The proposed rule would modify the filing and review process for 
recognition and accreditation requests. Under the current process, 
organizations use Form EOIR-31 to request recognition, and the form 
identifies the requirements for recognition.\53\ Organizations, 
however, are not required by regulation to file a form to apply for or 
renew accreditation of a representative. Rather, they may file a letter 
and supporting documentation or they may file voluntary form EOIR-31A. 
The proposed rule would require that organizations use Form EOIR-31A to 
request accreditation (or the renewal of accreditation) for their 
representatives. The required form should both simplify the 
accreditation request process for applicants by clarifying the required 
information and promote efficient and effective administration of the 
program to ensure that only qualified and competent applicants are 
recognized and accredited.\54\
---------------------------------------------------------------------------

    \53\ The current regulations refer to the outdated INS Form G-27 
application for recognition. 8 CFR 1292.2(b). Upon EOIR's creation, 
EOIR re-designated the application for recognition as Form EOIR-31.
    \54\ EOIR intends to regularly make available average processing 
times for recognition and accreditation applications.
---------------------------------------------------------------------------

    The proposed rule would modify the requirements for service of 
requests for recognition and accreditation in two ways. First, the 
proposed rule requires service of a request for recognition or 
accreditation only on USCIS, not on both USCIS and ICE.\55\ All 
accredited representatives may appear before USCIS, and approximately 
eighty percent of accredited representatives and their recognized 
organizations provide representation solely before USCIS. Therefore, it 
is unnecessary for organizations to serve all requests for recognition 
and accreditation on ICE. If OLAP determines that it may be beneficial 
to obtain a recommendation or information from ICE, particularly with 
applications for renewal of full accreditations, OLAP may make a 
request to ICE for a recommendation or information.\56\ Second, the 
proposed rule requires service on the USCIS district offices in the 
jurisdictions where the organization and its representatives offer or 
intend to offer services, rather than the USCIS district offices where 
the organization is located. The proposed rule's service requirements 
with respect to USCIS will ensure involvement from the USCIS offices 
that are most likely to have relevant information, particularly with 
regard to applicants who have previously practiced before USCIS in 
other circumstances.\57\
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    \55\ The current Form EOIR-31 states that requests for 
recognition and accreditation must be served on the USCIS district 
director and the ICE chief counsel who have jurisdiction over the 
area in which the organization is located. See Form EOIR-31, OMB# 
1125-0012, at 1 (Oct. 2014).
    \56\ For most initial requests for recognition or accreditation, 
ICE would have no information regarding an organization or its 
proposed representatives, unless the organization or proposed 
representatives were previously recognized or accredited.
    \57\ As in the current regulations, any USCIS recommendation 
regarding a request for recognition or accreditation will be served 
on the organization, which will then have the opportunity to respond 
to any unfavorable recommendation.
---------------------------------------------------------------------------

    The proposed rule also allows OLAP to gather information from new 
sources--other than USCIS and ICE--in evaluating requests for 
recognition and accreditation. OLAP may request investigations and 
receive information from the EOIR disciplinary counsel and the EOIR 
anti-fraud officer when evaluating recognition and accreditation 
requests. OLAP may also consider publicly available information, such 
as newspaper articles or other public records. Unfavorable information 
obtained by OLAP from these sources, or from USCIS or ICE, that may be 
relied upon to disapprove a recognition or accreditation request, if 
not previously served on the organization, will be disclosed to the 
organization. The organization will be given a reasonable opportunity 
to respond to such unfavorable information prior to any determination 
on the request for recognition or accreditation.
    In addition, in order to minimize adverse determinations, OLAP may 
request additional information from an organization prior to issuing a 
determination on a request for recognition or accreditation.\58\ This 
process is similar to a USCIS Request for Evidence in the immigration 
petition or application context.\59\ This new process will allow 
organizations to address concerns or questions, thereby facilitating 
the approval of their applications when appropriate.
---------------------------------------------------------------------------

    \58\ The current regulations provide that the Board may hear 
oral argument on requests for recognition and accreditation. See 8 
CFR 1292.2(b), (d). The proposed rule does not provide OLAP with 
similar authority because oral argument has rarely been used by the 
Board to issue a decision on a request for recognition or 
accreditation. Additionally, any issues that arise in relation to a 
request for recognition or accreditation under the proposed rule may 
be resolved through the request for information process.
    \59\ See USCIS, Policy Memorandum 602-0085: Requests for 
Evidence and Notices of Intent to Deny (June 3, 2013), available at 
http://www.uscis.gov/USCIS/Laws/Memoranda/2013/June%202013/Requests%20for%20Evidence%20(Final).pdf (last visited Sept. 15, 
2015).
---------------------------------------------------------------------------

    Finally, similar to the current R&A regulations, which do not allow 
for an appeal or a motion to reopen or reconsider the Board's final 
decision on recognition or accreditation issues, the proposed rule 
provides that OLAP's recognition or accreditation determinations would 
be final (i.e., there would be no appeal of an adverse determination). 
An organization whose request for recognition or accreditation is 
disapproved may submit a new request for recognition or accreditation 
when the organization believes it has overcome or corrected the basis 
for disapproval.
4. Extending Recognition and Accreditation
    The proposed rule eliminates the requirement that organizations 
with multiple offices submit separate applications for recognition of 
each physical location,\60\ and instead grants OLAP the discretion to 
approve extensions of recognition and accreditation of representatives 
from the headquarters or designated office of an organization to other 
offices or locations where the organization provides immigration legal 
services. This change

[[Page 59522]]

should have the effect of increasing the number of recognized 
organizations and accredited representatives available to provide 
immigration legal services to underserved immigrant populations in 
different areas, and better reflects the advances in technology that 
have improved an organization's ability to oversee its operations, 
supervise staff, and access legal resources as well as the changes in 
how organizations provide services.\61\ It seems unnecessary and overly 
burdensome to require an organization with multiple offices but 
virtually the same staff, structure, mission, and tax status to 
independently apply for recognition at each location.\62\
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    \60\ Currently, the Board requires an organization with 
physically separate branch offices to request recognition for each 
branch office, even if another office is already recognized. Matter 
of Florida Rural Legal Services, Inc., 20 I&N Dec. 639, 640 (BIA 
1993). The Board also required organizations to file separate 
requests for accreditation at each branch office until recently, 
when it eliminated the requirement because organizations were filing 
duplicative applications for the same individual. See Matter of 
United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014). The 
proposed rule adopts a similar approach and extends it to allow 
organizations with multiple branch offices to seek OLAP's approval 
to extend recognition as well as accreditation to multiple locations 
without the need to submit a separate, largely redundant request. As 
a result, the proposed rule eliminates duplicative requests for both 
recognition and accreditation.
    \61\ For example, this provision may allow for a farm workers' 
organization with a mobile van to travel to rural locations in order 
to provide immigration legal services to its clients or for an 
organization to provide services via videoconferencing equipment 
when a client is at one office and a representative is at a second 
office.
    \62\ See also Matter of United Farm Workers Foundation, 26 I&N 
Dec. at 456 & n.2 (noting that elimination of ``per branch'' 
accreditation will ``lessen the paperwork and costs associated with 
duplicative applications, and it will eliminate the unproductive 
need for recognized organizations to monitor multiple expiration 
dates for the same accredited representative'').
---------------------------------------------------------------------------

    To extend recognition to another office or location, the proposed 
rule does not require a recognized organization to fully complete a 
Form EOIR-31 for the new office or location. Rather, the recognized 
organization must simply submit Form EOIR-31 with the names and 
addresses of offices or locations where it intends to provide services 
and affirm that it conducts regular inspections, supervises and 
controls its accredited representatives, and provides access to 
adequate legal resources at each office or location where services will 
be provided. An organization seeking to extend recognition to an office 
or location must conduct periodic inspections of that office or 
location, but daily supervision of accredited representatives would not 
be expected. Once the request for extension is approved, the 
organization's accredited representatives may represent clients out of 
each of the offices or locations listed. The addresses of these offices 
or locations and the associated accredited representatives will be 
placed on the roster of recognized organizations and accredited 
representatives.
    The proposed rule does not require OLAP to extend recognition and 
accreditation to all offices or locations of an organization. Rather, 
OLAP, in its discretion, may direct an office or location of an 
organization to independently seek recognition and the accreditation of 
its representatives. For example, if a national non-profit organization 
applied to extend recognition from its headquarters to a branch or 
affiliate office with its own non-profit organizing documents, staff, 
funding sources, fee schedules, and other distinct operations, the 
branch office would likely be required to independently seek 
recognition and the accreditation of its representatives.
5. The Validity Period, Renewal of Recognition and Accreditation, and 
Change in Accreditation
a. Validity Period for Recognition and Accreditation
    Under the current R&A regulations, recognized organizations are 
recognized indefinitely, unless their recognition is withdrawn. 
Accredited representatives, on the other hand, are currently required 
to request renewal of their accreditation every three years. Some 
commenters recommended that organizations be required to renew their 
recognition to address the perceived ineffectiveness of the current 
rule's withdrawal of recognition process and to improve oversight of 
recognized organizations, whereas others have recommended an annual 
update by the organization rather than a full re-recognition 
process.\63\ Commenters also expressed concern regarding unduly 
burdensome requirements for renewal of recognition and have suggested 
up to a five-year renewal period.\64\
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    \63\ See R&A Public Meeting Minutes at 2-3. Some commenters 
recommended that EOIR institute an annual registration or reporting 
process, possibly online, that would allow active organizations to 
update relevant information rather than go through, or in addition 
to, the re-recognition process. See R&A Program Comments at 45, 57, 
64; AILA Comments at 2. EOIR does not have the resources at this 
time to create electronic records for recognition and accreditation 
or an online update process for organizations. EOIR also has 
concerns that an annual re-registration would not be sufficiently 
thorough to allow for meaningful oversight or address potential 
fraud by unscrupulous individuals.
    \64\ See R&A Program Comments at 8, 18, 79.
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    Under the proposed rule, recognition would be valid for a period of 
three years, unless the organization has been granted conditional 
recognition, which is valid only for two years, or the organization has 
its recognition administratively terminated or is disciplined (through 
revocation or termination) prior to the conclusion of its recognition 
period. The accreditation period of a representative would run 
concurrently with the organization's recognition period or, if approved 
separately from the organization's recognition, the representative's 
accreditation would expire on the same date the organization's period 
of recognition ends, unless the representative is administratively 
terminated or the representative is disciplined (through termination, 
revocation, suspension, or disbarment) prior to the conclusion of the 
recognition period. This framework simplifies the renewal process for 
the organization, which must seek renewal for both itself and its 
representatives at the same time, and reinforces the interdependence 
between recognition and accreditation, as accreditation does not exist 
independently of association with a recognized organization.
b. Renewal of Recognition and Accreditation
    As noted above, the proposed rule provides that, in order to retain 
recognition, an organization must renew its recognition along with the 
accreditation of its representatives every three years, or two years 
after a grant of conditional recognition.\65\ For recognition to be 
renewed for a three-year period, the organization must have at least 
one representative simultaneously approved for accreditation.\66\ 
Recognition of an organization and accreditation of its representatives 
remain valid pending a determination on the renewal requests. 
Organizations and representatives seeking renewal of their status, even 
those in pending disciplinary proceedings, are presumed to be in good 
standing and remain eligible to provide immigration legal services 
during OLAP's consideration of the renewal request.\67\
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    \65\ A renewal application must be received by the OLAP Director 
on or before the third anniversary date of the last decision 
approving the organization's recognition (or two years after an 
approval of conditional recognition). Given the documentation 
necessary to establish eligibility for renewal, an organization 
should generally refrain from submitting an application more than 60 
days prior to its anniversary date. The proposed rule also provides 
OLAP with discretion to accept an application out of time.
    \66\ Accordingly, when applying for renewal, the organization 
must: (1) Renew accreditation of at least one current 
representative; (2) request accreditation for a new proposed 
representative; or (3) both.
    \67\ However, a representative in pending disciplinary 
proceedings who has received an interim suspension that precludes 
practice before USCIS or EOIR during the pendency of the proceedings 
is not presumed to be in good standing.
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    To renew recognition, the organization must file Form EOIR-31, 
establish that it continues to maintain the qualifications for 
recognition; submit fee schedules and annual reports compiled since its 
last approval of recognition; and describe any unreported changes that 
impact eligibility for recognition since the last approval of 
recognition. The new

[[Page 59523]]

documentary requirements should not be unduly burdensome because 
organizations likely already prepare the required documents in the 
normal course of their operations. Furthermore, the ability to extend 
recognition to branch offices should reduce the number of documents 
required to be filed by an organization with multiple offices.
    To renew accreditation, the organization must use Form EOIR-31A, 
establish that the accredited representative continues to maintain the 
qualifications for accreditation, and show that the representative has 
continued to receive formal training in immigration law and procedure 
commensurate with the services the organization provides and the 
duration of the representative's accreditation.
    The proposed rule does not mandate testing or the type or amount of 
training required to renew accreditation.\68\ Rather, similar to the 
Board's interpretation of the current regulations, the proposed rule 
imposes a formal training requirement and requires the organization to 
provide evidence of completed training upon applying for renewal.\69\ 
The formal training courses should focus generally on recent 
developments in immigration law and procedure, but may concern specific 
areas, such as citizenship, asylum, VAWA, or criminal law and the 
consequences of criminal convictions in immigration proceedings, as may 
be relevant to the nature of the representative's casework. Case 
management skills, ethics, and professional responsibility training are 
also recommended.
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    \68\ The training requirement for renewal of accreditation has 
been the subject of much debate, but there has been no consensus 
among training advocates as to the appropriate type and amount of 
training or who should provide the training and how it should be 
delivered. See R&A Public Meeting Minutes at 4-5; R&A Program 
Comments at 2, 10-11, 20-22, 24, 40, 43, 54, 60, 65, 68-69; AILA 
Comments at 5-6. EOIR considered but rejected including requirements 
in the proposed rule for mandatory testing or a specified type or 
amount of training. Inclusion of such requirements would necessarily 
increase the costs of applying for recognition and accreditation, as 
they would likely involve fees and added expenses for organizations. 
Those fees and added expenses, in turn, would likely result in 
increased charges for services to clients of the organization. 
Furthermore, EOIR currently does not have the resources to develop 
its own mandatory testing and training program for accredited 
representatives.
    \69\ In Matter of Central California Legal Services, Inc., the 
Board noted that ``[w]hen a recognized organization seeks to renew a 
representative's accreditation, it should provide documentation that 
its accredited representative has received additional formal 
training in immigration law since the most recent accreditation.'' 
26 I&N Dec. at 106-07 n.3.
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    In its renewal request, an organization should also show, through 
its annual reports, the types and numbers of immigration applications 
and cases handled by the accredited representative during the 
accreditation period, and submit letters of recommendation from 
individuals who can attest to the representative's character and 
performance during the period. The duration of a representative's 
accreditation is relevant in this regard, as a representative who was 
accredited six months prior to the renewal date would not necessarily 
be expected to show the same amount of formal training and work 
experience as a representative who was accredited for an entire three-
year period. Nonetheless, the organization would be expected to provide 
information regarding any training attended or cases handled by the 
representative during the abbreviated period of accreditation. Even an 
experienced representative who has been re-accredited several times 
should demonstrate continued formal training.
    OLAP's process for evaluating recognition and accreditation renewal 
requests is similar to the review process for initial recognition and 
accreditation requests. OLAP may receive a recommendation from USCIS 
regarding the requests, and it may request additional information from 
the organization, review publicly available information, or seek an 
investigation and information from USCIS, ICE, the EOIR disciplinary 
counsel, or the EOIR anti-fraud officer. The organization will have the 
opportunity to respond to unfavorable information that was not 
previously provided to it that OLAP may use to make its renewal 
determination.
    As in the context of initial requests, discussed in Part IV.B.3 
above, the proposed rule provides that OLAP's determinations regarding 
recognition or accreditation renewal requests would be final (i.e., 
there would be no appeal from an adverse determination).
    For an organization whose request for renewal of recognition is 
disapproved, both its recognition and the accreditation of its 
representatives will terminate upon service of an administrative 
termination notice. However, the disapproved organization may submit a 
new request for recognition or accreditation.
c. Change in Accreditation
    The proposed rule permits a recognized organization to request, at 
any time during the validity period of accreditation or at renewal, 
that a representative's status be changed from partial to full 
accreditation. A request for a change to full accreditation must 
demonstrate that the representative has the skills essential for 
effective litigation of cases before the immigration courts and the 
Board, such as legal research and oral and written trial and appellate 
advocacy skills. If an organization requests a change from partial to 
full accreditation at renewal, and that request is disapproved, OLAP 
may renew the representative's partial accreditation provided that the 
representative satisfies the requirements for renewal of such 
accreditation.
d. Organizations and Representatives Recognized and Accredited Prior to 
the Effective Date of the Final Rule
    Organizations and representatives recognized and accredited prior 
to the effective date of this rule when it is adopted in final form 
will remain recognized and accredited.\70\ However, these organizations 
and representatives would be subject to the provisions of the final 
rule when it becomes effective, and they would be required to request 
renewal of recognition and renewal of accreditation for their 
representatives based on certain triggers, as set forth below:
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    \70\ At the effective date of the final rule, a pending 
application for initial recognition, initial accreditation, or 
renewal of accreditation before the Board would be transferred to 
OLAP to review. Organizations with such pending applications would 
have to meet the new requirements of the final rule to be approved 
for recognition or accreditation. OLAP will provide organizations 
with pending applications the opportunity to amend the applications, 
if necessary, to conform to the new requirements of the final rule. 
Further guidance will be provided prior to the effective date of the 
final rule.
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     Organizations without an accredited representative would 
be required to renew recognition within one year of the effective date 
of the final rule, so that such organizations become compliant with the 
rule's requirement that recognized organizations have at least one 
accredited representative.
     Organizations submitting a request for accreditation of a 
new representative or a request for extension of recognition and 
accreditation to an additional office or location would be required to 
renew recognition and accreditation of all representatives at that 
time, so that the organization's recognition and the accreditation of 
its representatives remain linked and subject to renewal at the same 
time.
     Organizations that do not fall into either of the above 
categories would be required to apply for renewal of recognition within 
two years of the effective date of the final rule if the organization 
was recognized for more than ten years prior to the effective date, or 
within three years of the effective

[[Page 59524]]

date if the organization was recognized for ten years or less prior to 
the effective date. This will ensure that older recognized 
organizations that have not had their qualifications for recognition 
evaluated in over ten years are examined sooner than organizations that 
have been more recently recognized.
    If the accreditation of a currently accredited representative would 
otherwise expire prior to the date that the organization is required to 
renew recognition under this rule, the representative's renewal date 
will be tied to the organization's renewal date. In other words, if a 
representative's accreditation would otherwise expire one year after 
the effective date of the final rule, but the organization is not 
required to renew its recognition until two years after the effective 
date, the representative's accreditation continues in effect and does 
not need to be renewed until year two, at which time the organization 
will be required to seek renewal of recognition for itself and renewal 
of its representatives' accreditations at the same time. If an 
organization timely files a request for renewal of recognition and 
accreditation, both the recognition of the organization and the 
accreditation of its representatives will remain valid pending OLAP's 
consideration of the renewal requests.
    Except for the new eligibility requirements of the final rule,\71\ 
which would not be applicable until the time of renewal, these 
organizations and representatives would be subject to the provisions of 
the final rule as of its effective date, including the new disciplinary 
rules and procedures and any ground of administrative termination. 
Thus, these organizations and representatives may have their 
recognition or accreditation administratively terminated or may be 
subject to disciplinary action for incompetence, misconduct, or other 
disciplinary grounds.
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    \71\ Note that the formal training requirement for renewal 
specified at 1292.16(c) is not a new eligibility requirement for 
renewal of accreditation. See supra n.69 (discussing Matter of 
Central California Legal Services and the need to show continued 
training for renewal of accreditation). Accordingly, representatives 
accredited prior to the effective date of the final rule will 
continue to be subject to the formal training requirement when they 
seek renewal under the final rule.
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6. Conditional Recognition
    The proposed rule provides for conditional recognition of 
organizations that have not been previously recognized or that are 
recognized anew after having lost recognition due to an administrative 
termination or disciplinary sanctions. Some commenters have suggested 
that newly recognized organizations should be subject to a probationary 
period to assess their capabilities as non-profit providers of 
immigration legal services.\72\ Conditional recognition provides such a 
probationary period and requires the specified organizations to apply 
for renewal under the processes outlined above within two years of the 
date that OLAP granted conditional recognition.
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    \72\ R&A Program Comments at 15, 77.
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    For a new organization, the two-year period provides the necessary 
time for the organization to establish itself and demonstrate that it 
can maintain the qualifications for recognition. Specifically, the 
conditional recognition period should provide sufficient time for new 
organizations to submit relevant tax documents, develop their client 
base, and establish a track record of offering immigration legal 
services to the community. The two-year conditional recognition period 
also should facilitate informed recommendations from USCIS and others 
in the community as to the competence of the organization and its 
representatives. For a previously recognized organization that was 
subject to an administrative termination or disciplinary sanctions, 
conditional recognition places it in the same position as a ``new'' 
organization. But the two-year period allows OLAP the opportunity to 
review the organization at an earlier renewal date to ensure that the 
same issues that led to an organization's earlier termination or 
discipline do not resume. Once OLAP approves a conditionally recognized 
organization for renewal of recognition, the organization and its 
accredited representatives then become subject to the standard three-
year renewal cycle.
7. Reporting, Recordkeeping, and Posting Requirements
    The proposed rule would impose reporting, recordkeeping, and 
posting requirements on recognized organizations and permit OLAP to 
administratively terminate recognition if OLAP determines that such a 
sanction is warranted because an organization fails to comply with 
these requirements after being notified of the deficiencies and having 
an opportunity to respond. These measures are intended to promote 
accountability from recognized organizations and serve as deterrents 
against fraud and abuse by individuals seeking to exploit the 
recognition and accreditation process.
    First, the proposed rule would clarify the scope of the duty to 
report set forth in the current R&A regulations and EOIR's guidance to 
organizations,\73\ and identify additional changes that must be 
reported to OLAP, including updated email addresses and Web sites, as 
well as changes in non-profit or tax-exempt status. Organizations must 
report these changes as soon as possible, but generally not later than 
30 days from the date of the change.
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    \73\ See 8 CFR 1292.2(b), (d); EOIR, Recognition & Accreditation 
(R&A) Program, http://www.justice.gov/eoir/recognition-and-accreditation-program (last visited Sept. 15, 2015). The proposed 
rule provides a non-exhaustive list of the types of changes for 
which an organization would have a duty to report, including changes 
to: The organization name, address, telephone number, Web site 
address, email address, or the designation of authorized officer of 
the organization; an accredited representative's name or employment 
or volunteer status with the organization; and the organization's 
structure.
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    Second, the proposed rule would add a new recordkeeping 
requirement, which will provide OLAP with a means to monitor 
organizations and ensure their compliance with the recognition 
requirements. Specifically, recognized organizations would be required 
to compile certain records and maintain them for six years after the 
creation of the records,\74\ including annual reports and fee 
schedules, if any, for each office or location where services are 
provided.\75\ These records may be requested for inspection by USCIS or 
EOIR in connection with an investigation, but they are primarily 
necessary to apply for renewal of recognition. The recordkeeping 
requirement should not be unduly burdensome, as organizations likely 
are required to retain such information for client-file retention, tax, 
or other accounting purposes. Moreover,

[[Page 59525]]

requiring organizations to maintain and provide the specified records 
should deter unscrupulous individuals and organizations seeking to 
abuse the recognition and accreditation process.
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    \74\ The six-year record retention requirement is consistent 
with some state client-file retention policies for attorneys. See, 
e.g., American Bar Association, Materials on Client File Retention, 
http://www.americanbar.org/groups/professional_responsibility/services/ethicsearch/materials_on_client_file_retention.html (last 
visited Sept. 15, 2015); see generally Model Rules of Prof'l Conduct 
1.16(d) (regarding attorney's obligation as to client records upon 
termination of representation); ABA Model Code of Prof'l 
Responsibility DR 2-110(A)(2) (regarding attorney's obligations as 
to client records upon withdrawal of representation). A recognized 
organization at the time the final rule becomes effective would be 
required to begin maintaining the specified records. An organization 
recognized after the effective date of the final rule must maintain 
the records prospectively. Both such organizations may destroy or 
discard any such records for recognition and accreditation purposes 
that are outside the six-year retention period.
    \75\ The annual report should include information already 
gathered by the organization such as the number of clients served, 
the types of services provided, the number of clients who were 
provided services at no cost, the total amount of fees charged to 
and donations or dues requested from immigration clients for the 
services provided, and the offices or locations where accredited 
representatives provided legal services.
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    Third, the proposed rule would authorize OLAP to require recognized 
organizations to post certain public notices.\76\ These limited notices 
would provide information to the public about the R&A program, the 
requirements for recognition and accreditation, and the approval period 
of an organization's recognition and the accreditation of its 
representatives.\77\ The notices would also explain how to submit 
complaints about accredited representatives or organizations that 
exploit or misuse the R&A process.
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    \76\ See Zauderer v. Office of Disciplinary Counsel, Supreme 
Court of Ohio, 471 U.S. 626, 651 (1985) (stating that required 
factual disclosures by commercial entities that are reasonably 
related to a valid government interest do not violate the First 
Amendment).
    \77\ Commenters have suggested that the recognition and 
accreditation determination letter include a certificate for office 
display. The certificate could have the names of the organization 
and representatives, expiration dates, and information regarding 
where complaints can be filed against organizations, 
representatives, or notarios. Additionally, commenters have 
recommended that photo identification cards or secure badges be 
required for accredited representatives. The proposed rule does not 
require issuance of a certificate, secure identity card, or badge. 
Fully accredited representatives already are required to register 
through EOIR's eRegistry. See 8 CFR 1292.1. There would be costs to 
implement any additional requirements and EOIR does not intend to 
charge a fee to apply for recognition or accreditation or to issue 
secure identity documents for all representatives. Rather, OLAP may 
explore less costly options in the future to provide certificates 
and accreditation cards. See R&A Public Meeting Minutes at 2; R&A 
Program Comments at 1, 8, 15, 26, 58, 61, 63; AILA Comments at 3.
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C. Administrative Termination of Recognition and Accreditation

    The proposed rule would replace the current withdrawal-of-
recognition process with administrative termination procedures in order 
to provide a clear and more effective mechanism for OLAP to regulate 
the R&A roster for administrative, non-disciplinary reasons.
    As commenters have noted in public meetings and written comments, 
the current withdrawal-of-recognition procedures are largely 
ineffective and have been rarely used.\78\ Withdrawal of recognition 
requires DHS to investigate whether an organization has maintained the 
qualifications for recognition and to initiate the withdrawal process 
through a notice to show cause.\79\ The process involves a hearing 
before an immigration judge,\80\ who recommends a decision to the 
Board. The Board may hold oral argument, and it issues the final 
decision on withdrawal of recognition. The Board has issued one 
published decision in such proceedings and DHS (and, before it, INS) 
have rarely sought withdrawal of recognition in the last 20 years.\81\ 
Withdrawal of recognition has proven to be too cumbersome a process to 
remove an organization from the R&A roster for administrative reasons. 
The proposed rule would eliminate this process and permit OLAP to 
terminate and remove organizations and representatives from the roster 
for administrative reasons when appropriate.
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    \78\ See R&A Public Meeting Minutes at 3; R&A Program Comments 
at 59, 79; AILA Comments at 4.
    \79\ See 8 CFR 1292.2(c).
    \80\ The current withdrawal-of-recognition regulation, which has 
not been updated since the creation of DHS, refers to a hearing 
before a ``special inquiry officer.'' See 8 CFR 1292.2(c). That term 
is outdated and refers to the former title of individuals now known 
as ``immigration judges.''
    \81\ See Matter of Baptist Educational Center, 20 I&N Dec. 723, 
736 (BIA 1993) (withdrawing an organization's recognition upon 
finding that the organization was not a non-profit because it was 
not an entity separate and apart from its accredited representative, 
who used the organization's recognition to obtain accreditation and 
receive income for himself).
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    The proposed rule provides a list of administrative bases for 
terminating recognition or accreditation. These bases are limited to 
circumstances within the knowledge of the organization or 
representative. For instance, an organization's recognition may be 
administratively terminated because it voluntarily requested 
termination, because it did not request renewal of recognition,\82\ or 
because its renewal request was disapproved. Recognition of 
organizations and accreditation of representatives may also be 
terminated if OLAP notifies the organization or representative of a 
deficiency affecting eligibility for recognition and accreditation--
such as a failure to maintain the qualifications for recognition or 
accreditation or a failure to comply with the reporting, recordkeeping, 
and posting requirements--and the organization or representative does 
not dispute or provide an adequate explanation for the deficiency after 
being provided an opportunity to do so.
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    \82\ The proposed rule permits OLAP to grant additional time for 
an organization to renew its recognition or to accept late-filed 
renewal requests from organizations.
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    Upon notice to an organization that its recognition has been 
terminated, the accreditation of that organization's representatives 
will automatically be terminated as well, unless those individuals are 
also accredited through another recognized organization. The 
termination of a representative's accreditation may result in 
termination of the recognition of the representative's organization if 
the organization does not have any other accredited representatives. If 
that is the case, OLAP, independently or at the request of the 
organization, in the exercise of discretion, may place the organization 
on inactive status in lieu of terminating the organization's 
recognition. Inactive status precludes the organization from providing 
immigration legal services if it does not have an attorney on staff, 
but gives the organization a reasonable opportunity to apply for and 
have approved the accreditation of a new representative without having 
to request recognition anew.

D. Sanctioning Recognized Organizations and Accredited Representatives

    The proposed rule would provide an additional tool for EOIR to 
regulate the roster of recognized organizations through EOIR's well-
established disciplinary procedures at part 1003, subpart G, 8 CFR 
1003.101 et seq. The disciplinary process is separate and apart from 
administrative termination, and is directed at removing and potentially 
barring from the roster organizations and representatives that commit 
misconduct and act against the public interest.
    Currently, only attorneys, representatives, and other practitioners 
\83\ are subject to sanctions for committing misconduct or acting 
against the public interest. Recognized organizations are subject to 
withdrawal of recognition, which, as discussed above, is limited to 
removing organizations for failing to maintain the qualifications for 
recognition (e.g., non-profit status and nominal fees for its 
services). The current regulations do not address circumstances where 
organizations may submit false information to obtain recognition, abuse 
their recognized status by affiliating with unscrupulous individuals 
like notarios, or fail to monitor the provision of services provided by 
their representatives. The proposed rule extends sanctions to 
recognized organizations that commit misconduct or act against the 
public interest.
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    \83\ ``Other practitioners'' includes qualifying law students 
and law graduates not yet admitted to the bar, reputable 
individuals, and accredited officials who, like attorneys and 
accredited representatives, are authorized to represent clients 
before EOIR and are subject to EOIR's disciplinary procedures and 
sanctions. Such practitioners are typically authorized to appear in 
a single case and do not have multiple clients or caseloads like 
attorneys or accredited representatives.
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    Building on EOIR's well-established disciplinary procedures in part 
1003,

[[Page 59526]]

subpart G, the proposed rule would create a uniform disciplinary 
process for attorneys, accredited representatives, other practitioners 
and, now, organizations. The EOIR disciplinary counsel and the DHS 
disciplinary counsel will receive complaints against recognized 
organizations, just as they currently receive complaints against 
attorneys, accredited representatives, and other practitioners. The 
EOIR disciplinary counsel or DHS disciplinary counsel, or both, will 
conduct a preliminary inquiry into the complaints to determine if they 
have merit. If a complaint lacks merit, it will be dismissed. If a 
complaint has merit, the EOIR or DHS disciplinary counsel may disclose 
the information to OLAP so that OLAP may informally resolve the matter 
with the recognized organization or consider the information in the 
renewal process. The EOIR or DHS disciplinary counsel may also initiate 
formal disciplinary proceedings against the recognized organization 
under the procedures specified at 8 CFR 1003.101 et seq. Under the 
proposed rule, recognized organizations would be subject to the same 
regulatory procedures for formal disciplinary proceedings as attorneys 
and accredited representatives, with some exceptions specified 
below.\84\
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    \84\ The proposed rule would codify the existing delegation of 
authority from the EOIR Director to the Chief Administrative Hearing 
Officer to appoint, upon request of the Chief Immigration Judge, an 
administrative law judge as adjudicating official in disciplinary 
proceedings. If neither the Chief Immigration Judge nor the Chief 
Administrative Hearing Officer appoints an adjudicating official, or 
in the interest of efficiency, the EOIR Director may appoint an 
immigration judge or administrative law judge as an adjudicating 
official for the disciplinary proceedings.
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    The proposed rule would thus generally amend EOIR's disciplinary 
procedures so that they apply equally to recognized organizations, 
accredited representatives, and attorneys. The proposed rule would also 
add provisions to the disciplinary regulations that apply only to (1) 
recognized organizations, (2) accredited representatives, or (3) 
attorneys, accredited representatives, and other practitioners.
1. Grounds and Sanctions Applicable to Recognized Organizations
    The proposed rule provides, at 8 CFR 1003.110, a non-exhaustive 
list of grounds for which it would be in the public interest to impose 
sanctions against a recognized organization, including: (1) Providing a 
false statement or misleading information in applying for recognition 
or accreditation of the organization's representatives; (2) providing 
false or misleading information to clients or prospective clients 
regarding the scope of authority or the services provided by the 
organization or its accredited representatives; (3) failing to 
adequately supervise accredited representatives; or (4) employing, 
receiving services from, or affiliating with an individual who performs 
an activity that constitutes the unauthorized practice of law or 
immigration fraud. These grounds for disciplinary sanctions ensure that 
only qualified organizations are recognized and that those 
organizations are providing competent representation.
    While recognized organizations should be able to discern the scope 
of the rule's expectations with respect to the first, second, and 
fourth grounds of discipline listed above, a fuller explanation of what 
is expected of organizations with respect to the failure-to-supervise 
ground is provided herein. That ground requires that organizations 
oversee the legal services provided through their accredited 
representatives and any attorneys on staff. A recognized organization 
is not required to monitor the day-to-day services provided by its 
accredited representatives, but the organization should supervise 
accredited representatives who have been the subject of warning 
letters, informal admonitions, and agreements in lieu of discipline 
from the EOIR or DHS disciplinary counsel. The proposed rule would 
amend the confidentiality provisions at 8 CFR 1003.108 governing the 
information that the EOIR disciplinary counsel obtains and possesses so 
that the disciplinary counsel may share information about resolutions 
that pertain to accredited representatives \85\ with OLAP and an 
accredited representative's organization.\86\ These amendments ensure 
that both OLAP and recognized organizations are fully aware of 
complaints and other issues related to accredited representatives.\87\ 
If the conduct that subjected the accredited representative to 
discipline continues after notice to the organization, the EOIR or DHS 
disciplinary counsel would be able to consider whether to seek 
sanctions against the organization for failing to provide adequate 
supervision.
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    \85\ The confidentiality provisions have not been changed as 
they pertain to practitioners other than accredited representatives, 
such as attorneys. Information concerning such practitioners remains 
confidential to the same extent as under the current regulations.
    \86\ The proposed rule does not require the EOIR disciplinary 
counsel to disclose this information. Rather, the EOIR disciplinary 
counsel, in the exercise of discretion, may share information with 
OLAP and organizations to the extent that the disclosure of 
information will not interfere with the EOIR disciplinary counsel's 
regulatory obligations or an ongoing investigation.
    \87\ Note that DHS has separate confidentiality provisions in 
its regulations that would govern DHS disciplinary counsel's ability 
to share similar information with OLAP and recognized organizations.
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    The sanctions that may be imposed against a recognized organization 
are (1) revocation; (2) termination; or (3) any other sanction, other 
than a suspension,\88\ that an adjudicating official or the Board deems 
appropriate. Revocation removes an organization and its accredited 
representatives from the recognition and accreditation roster and 
permanently bars the organization from being recognized anew.\89\ 
Termination, like administrative termination, also removes an 
organization and its accredited representatives from the recognition 
and accreditation roster, but does not permanently bar it from 
subsequently applying for recognition. Unlike administrative 
termination, however, the adjudicating official or the Board may impose 
a time restriction on the organization that would preclude the 
organization from submitting a new request for recognition before a 
specified date.
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    \88\ In drafting the proposed rule, EOIR determined that 
suspension would not be a permissible sanction against a recognized 
organization due to the administrative complexities of suspending 
and reinstating an organization. These complexities stem from the 
interconnected relationship between organizations and their 
representatives and their respective renewal periods, and the 
possibility that an organization's qualifications to be recognized 
may be at issue after discipline.
    \89\ In addition to revoking an organization's recognition, an 
adjudicating official may identify individuals affiliated with the 
organization who were directly involved in the conduct that 
constituted the grounds for revocation. If such identified 
individuals affiliate with a new organization, OLAP may consider 
their past conduct when assessing the new organization's 
applications for recognition or accreditation. The burden would be 
on the new organization to show that the individual would not engage 
in similar conduct in the future.
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2. Grounds and Sanctions Applicable to Accredited Representatives
    The proposed rule would make two changes to the current grounds for 
discipline that are applicable only to accredited representatives, and 
provide a new process for the interim suspension of certain accredited 
representatives in disciplinary proceedings.
    Both changes to the grounds for discipline are aimed at precluding 
accredited representatives from acting or attempting to act outside the 
scope of their full or partial accreditation. In other words, a 
partially accredited representative, who is permitted to appear only 
before DHS, must not act or

[[Page 59527]]

attempt to act as a fully accredited representative, who is permitted 
to appear before DHS, the immigration courts, and the Board. The 
proposed rule would amend 8 CFR 1003.102(f) to define the circumstances 
in which an accredited representative would be considered to have made 
a false or misleading communication about his or her qualifications or 
services that cannot be substantiated. The proposed rule would also 
add, at 8 CFR 1003.102(v), a new ground for discipline if an accredited 
representative acts outside the scope of his or her accreditation.
    The proposed rule would also add 8 CFR 1003.111 to provide for the 
imposition of an interim suspension against certain accredited 
representatives in disciplinary proceedings. If the EOIR disciplinary 
counsel or DHS disciplinary counsel demonstrates by a preponderance of 
the evidence that an accredited representative poses a substantial 
threat of irreparable harm to clients or prospective clients, an 
adjudicating official may issue an interim suspension to the accredited 
representative. The interim suspension would preclude a representative 
who has committed or is likely to commit serious misconduct from 
continuing to practice during the pendency of his or her disciplinary 
proceedings so as to protect the public from further potential harm.
3. Procedures Applicable to Recognized Organizations and Accredited 
Representatives
    The proposed rule would add two provisions to the disciplinary 
procedures that are applicable only to recognized organizations and 
accredited representatives. First, the proposed rule states that 
administrative termination of an organization's recognition or a 
representative's accreditation while disciplinary proceedings are 
pending has no effect on the continuation of disciplinary proceedings 
or the imposition of sanctions. The primary objective of this amendment 
is to prevent an organization or representative from voluntarily 
terminating recognition or accreditation to avoid disciplinary 
sanctions.
    Second, the proposed rule provides that disciplinary sanctions, if 
imposed against an organization or accredited representative, would 
take effect immediately upon the issuance of a final order--that is, 
the issuance of the Board's decision on appeal or after the time for 
filing an appeal from the adjudicating official's decision has expired. 
Unlike imposition of disciplinary sanctions against attorneys and other 
practitioners, which take effect 15 days after the final order, 
disciplinary sanctions would be imposed immediately against 
organizations and accredited representatives. Recognized organizations 
and their accredited representatives are permitted to represent persons 
before the immigration courts, the Board, or DHS because EOIR itself 
grants them that permission and indicates to the public that the 
recognized organizations and accredited representatives are qualified 
to provide representation. Although attorneys also appear on behalf of 
multiple immigration clients, they do not need similar permission from 
EOIR to do so; they may practice before DHS, the immigration courts, 
and the Board because they are members in good standing of a state bar 
and not subject to any orders restricting their practice of law. The 
imposition of discipline against an organization or accredited 
representative thus allows EOIR to act immediately to protect the 
public from organizations and representatives that have engaged in 
misconduct by preventing them from continuing such conduct and 
significantly impairing the cases of individuals appearing before DHS, 
the immigration courts, and the Board.
4. Reinstatement
    The proposed rule would amend the provisions regarding 
reinstatement after suspension or disbarment. Some of these amendments 
would apply to accredited representatives, attorneys, and other 
practitioners, while others would apply only to accredited 
representatives.
    The proposed rule would allow the EOIR or DHS disciplinary counsel 
to object to reinstatement because a practitioner failed to comply with 
the terms of a suspension; such objections could be raised in the 
context of both reinstatement after a suspension has expired and 
requests for early reinstatement. The EOIR and DHS disciplinary counsel 
frequently receive evidence that suspended practitioners continue to 
practice immigration law while they are under an order of suspension. 
This new provision would enable the EOIR and DHS disciplinary counsels 
to raise relevant evidence to the Board during reinstatement 
proceedings.
    In addition, the proposed rule would make two changes to the 
reinstatement provisions that are applicable only to accredited 
representatives. First, accredited representatives who are disbarred by 
EOIR are permanently barred from appearing before the Board, the 
immigration courts, or DHS as accredited representatives and cannot 
seek reinstatement. Disbarment is permanent for accredited 
representatives because, as discussed above, EOIR is responsible for 
permitting accredited representatives to represent persons before EOIR 
and DHS, and it must protect the public from representatives who have 
been found to have engaged in misconduct worthy of disbarment. Second, 
the proposed rule would amend the reinstatement provisions to provide 
that accredited representatives may seek reinstatement only if, 
following the expiration of their suspension, there is time remaining 
on their period of accreditation. In other words, an accredited 
representative who has been suspended for a period of time greater than 
the remaining validity period of his or her accreditation at the time 
of the suspension is not eligible to be reinstated. In such 
circumstances, an organization may submit a new request for 
accreditation on behalf of such an individual after the period of 
suspension has elapsed.

E. Recognition and Accreditation for Practice Before DHS

    As noted, this proposed rule would amend the standards governing 
recognition of organizations and accreditation of representatives 
seeking to practice before either DHS or EOIR. Currently, those 
standards are set forth in two parallel sets of regulations: 
Regulations under the authority of DHS and contained in 8 CFR part 292; 
and regulations under the authority of the Department and contained in 
8 CFR part 1292. Each set of regulations contains substantially similar 
standards for recognition and accreditation, and each directs 
organizations and individuals to apply to the Board in order to obtain 
recognition or accreditation. Compare 8 CFR 292.1(a)(4), 292.2, with 8 
CFR 1292.1(a)(4), 1292.2.
    Although this proposed rule would revise only 8 CFR part 1292, it 
would prescribe the standards and procedures that EOIR would apply in 
adjudicating all future applications for recognition and accreditation, 
including applications for partial accreditation to represent 
individuals before DHS. Accordingly, as of the effective date of a 
final rule, EOIR would not apply the standards and procedures for 
recognition and accreditation set forth in 8 CFR part 292. DHS has 
informed the Department that it plans to publish regulatory amendments 
to 8 CFR part 292 consistent with any pertinent changes to Department 
regulations. The Department welcomes public comment on this matter.

[[Page 59528]]

V. Request for Public Comments

    Based on the foregoing and the proposed rule, the Department 
welcomes comments from the public on all aspects of this rule.\90\ In 
particular, the Department seeks the public's input on the following 
aspects of the proposed rule:
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    \90\ Additionally, EOIR intends to engage with the public 
through public meetings and other means to receive comments on the 
entire rule. EOIR will provide notice of any public engagements in 
the Federal Register and on its Web site.
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     The proposed requirement that an organization must 
demonstrate Federal tax-exempt status, including whether there are any 
non-profit organizations that are currently recognized that would be 
precluded from recognition by this requirement; and whether recognition 
should be restricted to non-profit organizations that have obtained 
section 501(c)(3) tax-exempt status from the IRS.
     The proposed requirement that a ``substantial amount of 
the organization's immigration legal services budget is derived from 
sources other than funds provided by or on behalf of immigration 
clients themselves (such as legal fees, donations, or membership 
dues).''
     The proposed requirement that an organization must 
demonstrate that its immigration legal services are directed primarily 
to low-income and indigent clients within the United States and that, 
if an organization charges fees, the organization has a written policy 
for accommodating clients unable to pay for immigration legal services.
     The proposed requirement that, in order to be recognized, 
each organization must have an accredited representative, including 
whether an organization with a licensed attorney and no accredited 
representative on staff should be able to become a recognized 
organization.
     The proposed replacement of the ``good moral character'' 
requirement for accreditation with the requirement that an accredited 
representative possesses the ``character and fitness'' to represent 
clients, including what factors may be relevant to that assessment. 
Under this requirement, how should current immigration status be a 
factor in the fitness determination; to what extent should the agency 
consider whether the individual has employment authorization, has been 
issued a notice of intent to revoke or terminate an immigration status 
(or other relief), such as asylum or withholding of removal or 
deportation, or is in pending deportation, exclusion, or removal 
proceedings?
     The proposed provision permitting an organization to 
extend its recognition and the accreditation of its representatives to 
any office or location where it offers immigration legal services.
     The proposed provision that would grant conditional 
recognition to an organization if it has not been recognized previously 
or has been approved for recognition after its recognition was 
previously terminated, including whether conditionally recognized 
organizations, particularly new organizations, would be able to remove 
conditional status after one year, instead of two, by producing the 
required records (including documentation demonstrating tax-exempt 
status) and otherwise meeting the requirements for renewal.
     The absence, as under the current R&A regulations, of any 
opportunity for administrative review or appeal of adverse OLAP 
determinations regarding the recognition of organizations or the 
accreditation of representatives. Under the revised procedures, would 
it be appropriate to provide some opportunity for administrative review 
of adverse OLAP determinations, and if so, to what extent and in what 
contexts?

VI. Regulatory Requirements

A. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, this rule will 
not have a significant economic impact on a substantial number of small 
entities. See 5 U.S.C. 605(b).
    Currently, there are more than 900 recognized organizations and 
more than 1,600 accredited representatives. This rule seeks to increase 
the number of recognized organizations and accredited representatives 
that are competent and qualified to provide immigration legal services 
primarily to low-income and indigent persons. The Department, however, 
cannot estimate with certainty the actual increase in the number of 
recognized organizations and accredited individuals that may result 
from the proposed rule. That figure is subject to multiple external 
factors, including changes in immigration law and policy and 
fluctuating needs for representation and immigration legal services.
    While EOIR does not keep statistics on the size of recognized 
organizations, many of these organizations and their accredited 
representatives may be classified as, or employed by, ``small 
entities'' as defined under section 5 U.S.C. 601. In particular, 
recognized organizations, which are by definition non-profit entities, 
may also be classified as ``small organizations'' and thus, as ``small 
entities'' under section 601.
    Although the exact number of recognized organizations that may be 
classified as ``small entities'' is not known, the Department certifies 
that this rule will not have a significant economic impact on a 
substantial number of these entities. The proposed rule, like the 
current regulations, does not assess any fees on an organization to 
apply for initial recognition or accreditation, to renew recognition or 
accreditation, or to extend recognition.
    The Department, however, acknowledges that organizations may incur 
costs to apply for recognition or accreditation, renew recognition or 
accreditation, or extend recognition. Based on Bureau of Labor 
Statistics reports and the average burden hours to apply for 
recognition or accreditation, renew recognition or accreditation, or 
extend recognition, discussed below in the Paperwork Reduction Act 
section, the Department estimates the costs as follows. See also 
Section G infra (discussing these burdens in detail in connection with 
the Paperwork Reduction Act). If an organization hires a lawyer to 
assist with the application process, the organization would incur costs 
of approximately $109.90 to apply for initial recognition, $164.85 to 
renew recognition, and $109.90 to apply for or to renew accreditation. 
If an organization prepares its applications on its own, the 
organization would incur costs of approximately $20.00 to apply for 
initial recognition, $30.00 to renew recognition, and $20.00 to apply 
for or to renew accreditation.
    The Department also recognizes that the proposed rule imposes a new 
recordkeeping requirement on recognized organizations to compile and 
maintain fee schedules, if the organization charges any fees, and 
annual reports for a period of six years. However, the Department does 
not believe that the recordkeeping requirement will have a significant 
economic impact on recognized organizations. The annual reports would 
be compiled from information already in the possession of recognized 
organizations, and based on the estimates from the Paperwork Reduction 
Act section below, the Department estimates that it would cost an 
organization approximately $54.95 to have a lawyer compile three annual 
reports, and $10.00 for a non-lawyer to do so.\91\ Maintaining the fee 
schedules and annual reports after their creation

[[Page 59529]]

for six years should not impose any significant economic impact on 
recognized organizations because such records may be retained in the 
normal course of business like other records, such as client files, 
that organizations are obligated to retain for state or Federal 
purposes.
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    \91\ Note that the total average burden (and cost) for renewing 
recognition includes the burden (and cost) of compiling three annual 
reports.
---------------------------------------------------------------------------

    Despite the costs mentioned above, the Department notes that the 
proposed rule will economically benefit recognized organizations. The 
proposed rule eliminates the requirement that recognized organizations 
assess only ``nominal charges'' for their immigration legal services. 
Shifting the primary focus of eligibility for recognition from the fees 
an organization charges its clients to the organization's funding will 
provide organizations with flexibility in assessing fees, which should 
improve their financial sustainability and their ability to serve more 
persons.

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined in section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804. As discussed in the certification under the Regulatory 
Flexibility Act, organizations and representatives will not be assessed 
a fee to either apply for or seek renewal of recognition and 
accreditation, and the burden of seeking renewal of recognition has 
been reasonably mitigated. The Department recognizes, however, that the 
proposed rule's elimination of the ``nominal charges'' restriction may 
affect competition and employment in the market for legal services 
because a recognized organization could charge higher fees (but less 
than market rates) to clients. The proposed rule balances the 
elimination of the ``nominal charges'' restriction by also requiring 
that non-profit organizations primarily serve low-income and indigent 
persons and those in underserved areas. Legal fees charged by a non-
profit organization are expected to be at a rate meaningfully less than 
the cost of hiring competent private immigration counsel in the same 
geographic area. Accordingly, this rule will not result in an annual 
effect on the economy of $100 million or more, a major increase in 
costs or prices, or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    The proposed rule is considered by the Department to be a 
``significant regulatory action'' under section 3(f)(4) of Executive 
Order 12866. Accordingly, the regulation has been submitted to the 
Office of Management and Budget (OMB) for review. The Department 
certifies that this regulation has been drafted in accordance with the 
principles of Executive Order 12866, section 1(b), and Executive Order 
13563. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying costs 
and benefits, reducing costs, harmonizing rules, and promoting 
flexibility.
    The proposed rule seeks to address the critical and ongoing 
shortage of qualified legal representation for underserved populations 
in immigration cases before Federal administrative agencies. 
Specifically, the proposed rule would revise the eligibility 
requirements and procedures for recognizing organizations and 
accrediting their representatives to provide immigration legal services 
to underserved populations. To expand the availability of such legal 
services, the proposed rule permits recognized organizations to extend 
their recognition and the accreditation of their representatives to 
multiple offices or locations and to have flexibility in charging fees 
for services. The proposed rule also imposes greater oversight over 
recognized organizations and their representatives in order to protect 
against potential abuse of vulnerable immigrant populations by 
unscrupulous organizations and individuals.
    The proposed rule will greatly benefit organizations, DHS, EOIR, 
and most importantly, persons who need legal representation. The 
proposed rule is expected to increase the availability of competent and 
qualified legal representation in underserved areas and particularly 
for indigent and low-income persons where an ongoing and critical 
shortage of such representation exists. For example, the elimination of 
the nominal fee restriction will allow organizations the flexibility to 
assess fees so that organizations will be able to sustain their 
operations and potentially expand them to serve more persons. In 
addition, the extension of recognition and accreditation to multiple 
offices or locations will permit organizations and their 
representatives, through mobile or technological means, to reach 
underserved persons who may currently have difficulty finding legal 
representation in remote or rural locations. These two provisions will 
greatly increase legal representation for persons before EOIR and DHS, 
and in turn, will substantially aid the administration of justice.
    The proposed rule will provide EOIR with greater tools to manage 
and oversee the recognition and accreditation program. The proposed 
rule requires organizations to renew their recognition and their 
representatives' accreditation every three years, and it imposes 
reporting, recordkeeping, and posting requirements on the 
organizations. The Department acknowledges that the new oversight 
provisions impose burdens on organizations. However, the burdens on the 
organizations are necessary to protect vulnerable immigrant populations 
from unscrupulous organizations and individuals and to legitimize 
reputable organizations and representatives.
    Although the renewal requirement adds a new burden on recognized 
organizations, the Department has reasonably mitigated this burden. The 
proposed rule simplifies the renewal process so that all renewal 
requests, both for recognition and for accreditation of representatives 
of the organization are filed simultaneously. Also, the documentation 
to support renewal of recognition and accreditation would be 
supplemental to the documentation used to establish initial eligibility 
for recognition and accreditation. The information and documentation 
required to renew recognition should be in the possession of the 
organization in the normal course of its operations.
    The reporting requirement expands the reporting obligation of 
organizations under the current rule, which only requires organizations 
to report changes in the organization's name, address, or public 
telephone number, or in the employment status of an accredited 
representative. The proposed rule

[[Page 59530]]

expands the requirement to include any changes that would affect the 
organization's recognition (such as a merger), or a representative's 
accreditation (such as a change in the representative's name). The 
reporting requirement should not impose a significant cost to 
organizations because organizations may comply with the requirement by 
simply contacting EOIR to report such changes.
    The recordkeeping requirement will primarily aid EOIR in evaluating 
an organization's request to renew recognition. The recordkeeping 
requirement requires an organization to compile fee schedules, if it 
charges any fees, and annual reports, and maintain them for a period of 
six years. The recordkeeping requirement is not unduly burdensome, as 
organizations should have such information in their possession, and the 
six-year record retention requirement is consistent with the 
organization's obligation to retain records, such as client files, for 
state or Federal purposes.
    The posting requirement would require organizations to post public 
notices about the approval period of an organization's recognition and 
the accreditation of its representatives, the requirements for 
recognition and accreditation, and the process for filing a complaint 
against a recognized organization or accredited representative. EOIR 
would provide the notices to the organizations, and the organizations 
would not incur any tangible costs for the minimal burden of posting 
the notices. In fact, the public notices should greatly benefit 
organizations because the notices would legitimize organizations and 
notify the public that they are qualified to provide immigration legal 
services.
    As detailed in Sections A (Regulatory Flexibility Act), supra, and 
G (Paperwork Reduction Act), infra, EOIR anticipates that if an 
organization hires a lawyer to assist with the application process, the 
organization would incur costs of approximately $109.90 to apply for 
initial recognition, $164.85 to renew recognition, and $109.90 to apply 
for or to renew accreditation. If an organization prepares its 
applications on its own, the organization would incur costs of 
approximately $20.00 to apply for initial recognition, $30.00 to renew 
recognition, and $20.00 to apply for or to renew accreditation.

E. Executive Order 13132: Federalism

    This rule may have federalism implications but, as detailed below, 
will not have substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.
    The proposed rule, like the current regulations it would replace, 
permits non-lawyer accredited representatives to engage in the practice 
of law before EOIR and DHS. This practice of law by non-lawyers may 
constitute the unauthorized practice of law under some state laws and 
rules prohibiting the unauthorized practice of law. The proposed rule, 
like the current regulations, would preempt such state law prohibitions 
pursuant to Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), 
to the extent they prohibit accredited representatives from practicing 
law before EOIR and DHS.\92\
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    \92\ Sperry held that a statute and implementing regulation 
authorizing non-lawyers to practice before the Patent Office 
preempted a contrary state law prohibition on the unauthorized 
practice of law to the extent that the state law prohibition was 
incompatible with the Federal rules. See 373 U.S. at 385.
---------------------------------------------------------------------------

    Despite the preemptive effects of this proposed rule, the 
federalism implications are minimal. The proposed rule merely updates 
the current, well-established regulations permitting non-lawyer 
accredited representatives to engage in the practice of law before EOIR 
and DHS. The proposed rule does not alter or extend the scope of the 
limited authorization to practice law before Federal administrative 
agencies provided under the current regulations. More significantly, 
following Sperry, many States have determined that the limited 
authorization for non-lawyers to practice law before EOIR and DHS does 
not constitute the unauthorized practice of law under their State laws 
and rules.\93\
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    \93\ See Ariz. Rev. Stat. Ann. Sec.  12-2702(A)(4) (stating that 
an accredited representative is not engaging in the unauthorized 
practice of immigration law by proving immigration legal services); 
N.J. Stat. Ann. Sec.  2C:21-31(d) (same); N.M. Stat. Ann. Sec.  36-
3-4(A)(4) (same); Va. Unauthorized Practice R. 9-103 (same); North 
Carolina State Bar, Preventing Unlicensed Legal Practice, http://www.ncbar.gov/public/upl.asp (last visited Sept. 15, 2015) (same).
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    Under these circumstances, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) of 1995, no person is 
required to respond to a Federal collection of information unless the 
agency has in advance obtained a control number from OMB. In accordance 
with the PRA, the Department has submitted requests to OMB to revise 
the currently approved information collections contained in this rule 
(Forms EOIR-31, EOIR-31A and EOIR-44). These information collections 
were previously approved by OMB under the provisions of the PRA, and 
the information collections were assigned OMB Control Numbers 1125-0012 
(EOIR-31), 1125-0013 (EOIR-31A), and 1125-0007 (EOIR-44). Through this 
notice of proposed rulemaking, the Department invites comments from the 
public and affected agencies regarding the revised information 
collections. Comments are encouraged and will be accepted for sixty 
days in conjunction with the proposed rule. Comments should be directed 
to the address listed in the ADDRESSES section at the beginning of this 
preamble. Comments should also be submitted to the Office of Management 
and Budget, Office of the Information and Regulatory Affairs, 
Attention: Desk Officer for EOIR, New Executive Building, 725 17th 
Street NW., Washington, DC 20053. This process is in accordance with 5 
CFR 1320.10.
    If you have any suggestions or comments, especially on the 
estimated public burden or associated response time, or need a copy of 
the proposed information collection instruments with instructions or 
additional information, please contact the Department as noted above. 
Written comments and suggestions from the public and affected agencies 
concerning the proposed collections of information are encouraged.
    Comments on the proposed information collections should address one 
or more of the following four points: (1) Whether the proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) the accuracy of the agency's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used; (3) how the 
Department could enhance the quality, utility, and clarity of the 
information to be collected; and (4) how the Department could minimize 
the burden of the collections of information on those who elect to 
respond, including through the use of appropriate

[[Page 59531]]

automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology (e.g., permitting 
electronic submission of responses).
    Based on the proposed rule, three currently approved information 
collection instruments will need to be revised: (1) The form for non-
profit religious, charitable, or social service organizations to apply 
for recognition (Form EOIR-31) (Current OMB approval number: 1125-
0012); (2) the form for recognized organizations to apply for 
accreditation of non-attorney representatives (Form EOIR-31A) (Current 
OMB approval number: 1125-0013); and (3) the form for filing a 
complaint against an immigration practitioner (Form EOIR-44) (Current 
OMB approval number: 1125-0007).
1. Request for Recognition, Renewal of Recognition, or Extension of 
Recognition for a Non-Profit, Federal Tax-Exempt Religious, Charitable, 
Social Service, or Similar Organization (Form EOIR-31)
    The revised Form EOIR-31 will be used to apply for initial 
recognition, renewal of recognition, and extension of recognition. Form 
EOIR-31 will generally be used every three years in connection with a 
request to renew recognition. It may also be used on occasion in the 
three-year period prior to renewal if an organization seeks to extend 
recognition to a new office or location, although extension of 
recognition to a new office may also be sought at the same time that 
initial recognition or renewal of recognition is sought.
    Form EOIR-31 will be updated to reflect the eligibility 
requirements for an organization to be initially recognized and to 
renew recognition, as stated in the proposed rule. All of the 
information required under the current information collection will be 
required by the revised form, as most of the eligibility requirements 
under the current regulations are consistent with the proposed rule; 
\94\ however, some of the information will be examined differently to 
determine whether an organization satisfies the new eligibility 
requirements for recognition of the proposed rule.
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    \94\ The revised form will require organizations to provide the 
same information and documents that are required under the current 
information collection. Organizations will continue to have to 
submit: A copy of their charter, constitution, by-laws, or articles 
of incorporation; documentation of their Federal tax-exempt status 
(e.g., the first page of the last IRS information return, if any); 
information regarding fees charged to clients, including fee 
schedules and fee waiver or reduced-fee policies; documents 
regarding funding sources and budget; and information regarding the 
immigration services the organizations intend to provide, members of 
their staff, their legal resources, and consultation agreements with 
other organizations or private attorneys.
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    The proposed rule would require revision of the currently approved 
information collection with regard to its use for renewal of 
recognition. In the renewal context, the revised form requires 
organizations to provide: (1) Fee schedules used since the last 
approval of recognition; and (2) annual reports for each year since the 
last approval of recognition. As described in footnote 75, the annual 
report should include information already gathered by the organization, 
such as the number of clients served, the types of services provided, 
the number of clients who were provided with services at no cost, the 
total amount of fees charged to and donations or dues requested from 
immigration clients for the services provided, and the locations where 
accredited representatives provided legal services. The fee schedules 
and annual reports will be used to: (1) Evaluate an organization's 
request to renew recognition to determine whether the organization is 
satisfying the requirements for recognition, namely the provision of 
immigration legal services to primarily low-income and indigent 
persons; and (2) evaluate the effectiveness of the recognition and 
accreditation program in providing immigration legal services to 
primarily low-income and indigent persons.
    Under the current information collection, which is currently used 
only for initial recognition, the estimated average time to review the 
form, gather necessary materials, complete the form, and assemble the 
attachments is 2 hours. The Department estimates that the average total 
response time will remain 2 hours for initial recognition because 
initial recognition requires the same materials as the current 
information collection. For renewal of recognition, with the additional 
requirements described above, namely the assembly of the annual 
reports, the Department estimates that the average time to review the 
form, gather necessary materials, complete the form, and assemble the 
attachments for each application to renew recognition will be 3 hours 
in total. Both estimates include the time saved from streamlining the 
recognition process by allowing an organization to file a single 
application for multiple locations.\95\ The estimate for the renewal 
context includes the additional burdens associated with document 
retention and preparation of the annual reports. The Department 
estimates that the number of respondents seeking recognition in the 
first year will be approximately 432 organizations (128 new 
organizations and 304 recognized organizations seeking renewal).\96\ 
The total public burden of this revised collection is estimated to be 
1,168 burden hours annually ((128 respondents x 1 response per 
respondent x 2 hours per response = 256 burden hours) + (304 
respondents x 1 response per respondent x 3 hours per response = 912 
burden hours) = 1,168 burden hours).
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    \95\ Note that organizations must currently seek recognition 
separately for each office that provides immigration legal services. 
Under the proposed rule and revised form, organizations may extend 
recognition from one office to other offices that provide 
immigration legal services by providing information regarding the 
additional offices on the same form as the initial office.
    \96\ Under the proposed rule, the 913 currently recognized 
organizations are expected to seek renewal of recognition over the 
next three years. Accordingly, the Department estimates that at 
least one third (304) of the 913 approved organizations will seek 
renewal of recognition each year for the next three years.
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2. Request by Organization for Accreditation or Renewal of 
Accreditation of Non-Attorney (Form EOIR-31A)
    Form EOIR-31A will be updated to reflect the eligibility 
requirements for an individual to become an accredited representative, 
as stated in the proposed rule. The revisions are non-substantive and 
are simply intended to clarify what information is required when 
applying for initial accreditation and renewal of accreditation, as 
well as the eligibility requirements for becoming an accredited 
representative.\97\ The revised form will not require the applicant to 
provide any new or additional information not already provided under 
the current information collection. EOIR Form-31A will continue to be 
used to apply for initial accreditation and to seek renewal of 
accreditation. EOIR Form-31A will be generally used every three years 
in connection with a request to renew accreditation, and may be used on 
occasion in the intervening time if an organization seeks accreditation 
for a new representative. As there is no new or additional information 
collected under the revised form, the Department estimates the average 
response time of 2 hours to complete Form EOIR-31A for

[[Page 59532]]

each application for initial accreditation or to renew accreditation 
will remain the same as the currently approved collection, with a total 
number of respondents at approximately 615 applications for 
accreditation annually. The total public burden of this revised 
collection is 1,230 burden hours annually (615 respondents x 1 response 
per respondent x 2 hours per response = 1,230 burden hours).
---------------------------------------------------------------------------

    \97\ For example, Part 5 (Qualifications for Accreditation) of 
Form EOIR-31A has been revised to include a list eligibility 
requirements, including that the applicant is an employee or 
volunteer of the organization; the applicant is not a licensed 
attorney; the applicant is not subject to any order restricting the 
individual in the practice of law or from otherwise providing 
representation before a court or administrative agency; and the 
applicant has not been convicted of a serious crime anywhere in the 
world.
---------------------------------------------------------------------------

3. Immigration Practitioner Complaint Form (Form EOIR-44)
    Form EOIR-44 will be updated to reflect that the public may use the 
form to file a complaint against a recognized organization, in addition 
to an immigration practitioner. The revised form will not require the 
preparer to provide any new or additional information not already 
provided under the current collection. The information on this form 
will be used to determine whether the EOIR or DHS disciplinary counsel 
should conduct a preliminary inquiry, request additional information 
from the complainant, refer the matter to a law enforcement agency, or 
take no further action. The Department estimates an average response 
time of 2 hours to complete Form EOIR-44, with a total number of 
respondents at approximately 200 complainants annually. The total 
public burden of this revised collection is 400 burden hours annually.
    There are no capital or start-up costs associated with these 
information collections. The estimated public cost is zero. For 
informational purposes only, there may be additional costs to 
respondents. Respondents may incur a cost if they hire a private 
practitioner to assist them with completing these forms. The Bureau of 
Labor Statistics reports that the median hourly wage for lawyers is 
$54.95. For those respondents who proceed without a practitioner, there 
is an estimated cost of $10 per hour for completing the form (the 
individuals' time and supplies) in lieu of the practitioner cost. There 
are also no fees associated with filing these forms.

List of Subjects

8 CFR Part 1001

    Administrative practice and procedure, Aliens, Immigration, 
Organizations and functions (Government agencies).

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organizations and functions (Government agencies).

8 CFR Part 1103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 1212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

8 CFR Part 1292

    Administrative practice and procedure, Immigration, Lawyers, 
Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, 8 CFR parts 
1001, 1003, 1103, 1212, 1240, and 1292 are proposed to be amended as 
follows:

PART 1001--DEFINITIONS

0
1. The authority citation for part 1001 is revised to read as follows:

    Authority:  5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 
116 Stat. 2135; Title VII of Pub. L. 110-229.

0
2. In Sec.  1001.1, add paragraphs (x) and (y) to read as follows:


Sec.  1001.1  Definitions.

* * * * *
    (x) The term OLAP means the Office of Legal Access Programs.
    (y) The term OLAP Director means the Program Director of the Office 
of Legal Access Programs.
* * * * *

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
3. The authority citation for part 1003 continues to read as follows:

    Authority:  5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

0
4. In Sec.  1003.0, revise paragraphs (a) and (e)(1), redesignate 
paragraph (f) as paragraph (g), and add new paragraph (f), to read as 
follows:


Sec.  1003.0  Executive Office for Immigration Review.

    (a) Organization. Within the Department of Justice, there shall be 
an Executive Office for Immigration Review (EOIR), headed by a Director 
who is appointed by the Attorney General. The Director shall be 
assisted by a Deputy Director and by a General Counsel. EOIR shall 
include the Board of Immigration Appeals, the Office of the Chief 
Immigration Judge, the Office of the Chief Administrative Hearing 
Officer, the Office of Legal Access Programs, and such other staff as 
the Attorney General or the Director may provide.
* * * * *
    (e) * * *
    (1) Professional standards. The General Counsel shall administer 
programs to protect the integrity of immigration proceedings before 
EOIR, including administering the disciplinary program for 
practitioners and recognized organizations under subpart G of this 
part.
* * * * *
    (f) Office of Legal Access Programs and authorities of the Program 
Director. Within EOIR, there shall be an Office of Legal Access 
Programs (OLAP), consisting of a Program Director and such other staff 
as the Director deems necessary. Subject to the supervision of the 
Director, the Program Director of OLAP (the OLAP Director), or his 
designee, shall have the authority to:
    (1) Develop and administer a system of legal orientation programs 
to provide education regarding administrative procedures and legal 
rights under immigration law;
    (2) Develop and administer a program to recognize organizations and 
accredit representatives to provide representation before the 
Immigration Courts, the Board, and DHS, or DHS alone. The OLAP Director 
shall determine whether an organization and its representatives meet 
the eligibility requirements for recognition and accreditation in 
accordance with this chapter. The OLAP Director shall also have the 
authority to administratively terminate the recognition of an 
organization and the accreditation of a representative and to maintain 
the roster of recognized organizations and their accredited 
representatives;
    (3) Issue guidance and policies regarding the implementation of 
OLAP's statutory and regulatory authorities; and
    (4) Exercise such other authorities as the Director may provide.
* * * * *
0
5. In Sec.  1003.1, revise paragraph (b)(13), the first sentence of 
paragraph (d)(2)(iii), and paragraph (d)(5) to read as follows:

[[Page 59533]]

Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

* * * * *
    (b) * * *
    (13) Decisions of adjudicating officials in disciplinary 
proceedings involving practitioners or recognized organizations as 
provided in subpart G of this part.
* * * * *
    (d) * * *
    (2) * * *
    (iii) Disciplinary consequences. The filing by a practitioner, as 
defined in Sec.  1003.101(b), of an appeal that is summarily dismissed 
under paragraph (d)(2)(i) of this section, may constitute frivolous 
behavior under Sec.  1003.102(j). * * *
* * * * *
    (5) Discipline of practitioners and recognized organizations. The 
Board shall have the authority pursuant to Sec.  1003.101 et seq. to 
impose sanctions upon practitioners who appear in a representative 
capacity before the Board, the Immigration Courts, or DHS, and upon 
recognized organizations. The Board shall also have the authority 
pursuant to Sec.  1003.107 to reinstate disciplined practitioners to 
appear in a representative capacity before the Board and the 
Immigration Courts, or DHS, or all three authorities.
* * * * *
0
6. In Sec.  1003.101, add paragraph (c) to read as follows:


Sec.  1003.101  General provisions.

* * * * *
    (c) The administrative termination of a representative's 
accreditation under 8 CFR 1292.17 after the issuance of a Notice of 
Intent to Discipline pursuant to Sec.  1003.105(a)(1) shall not 
preclude the continuation of disciplinary proceedings and the 
imposition of sanctions, unless counsel for the government moves to 
withdraw the Notice of Intent to Discipline and the adjudicating 
official or the Board grants the motion.
0
7. In Sec.  1003.102, revise paragraph (f)(2), remove the word ``or'' 
from the end of paragraph (t)(2), remove the period and add ``; and'' 
in its place at the end of paragraph (u), and add paragraph (v).
    The revisions and addition read as follows:


Sec.  1003.102  Grounds.

* * * * *
    (f) * * *
    (2) Contains an assertion about the practitioner or his or her 
qualifications or services that cannot be substantiated. A practitioner 
shall not state or imply that he or she has been recognized or 
certified as a specialist in immigration or nationality law unless such 
certification is granted by the appropriate state regulatory authority 
or by an organization that has been approved by the appropriate state 
regulatory authority to grant such certification. An accredited 
representative shall not state or imply that he or she
    (i) Is approved to practice before the Immigration Courts or the 
Board, if he or she is only approved as an accredited representative 
before DHS;
    (ii) Is an accredited representative for an organization other than 
a recognized organization through which he or she acquired 
accreditation; or
    (iii) Is an attorney.
* * * * *
    (v) Acts outside the scope of his or her approved authority as an 
accredited representative.
0
8. In Sec.  1003.103, revise paragraph (c) to read as follows:


Sec.  1003.103  Immediate suspension and summary disciplinary 
proceedings; duty of practitioner or recognized organization to notify 
EOIR of conviction or discipline.

* * * * *
    (c) Duty of practitioner and recognized organizations to notify 
EOIR of conviction or discipline. A practitioner and if applicable, the 
authorized officer of each recognized organization with which a 
practitioner is affiliated must notify the EOIR disciplinary counsel 
within 30 days of the issuance of the initial order, even if an appeal 
of the conviction or discipline is pending, when the practitioner has 
been found guilty of, or pleaded guilty or nolo contendere to, a 
serious crime, as defined in Sec.  1003.102(h), or has been disbarred 
or suspended by, or while a disciplinary investigation or proceeding is 
pending has resigned from, the highest court of any State, possession, 
territory or Commonwealth of the United States, or the District of 
Columbia, or any Federal court. A practitioner's failure to do so may 
result in an immediate suspension as set forth in paragraph (a) of this 
section and other final discipline. An organization's failure to do so 
may result in the administrative termination of its recognition for 
violating the reporting requirement under 8 CFR 1292.14. This duty to 
notify applies only to convictions for serious crimes and to orders 
imposing discipline for professional misconduct entered on or after 
August 28, 2000.
0
9. In Sec.  1003.104, revise paragraph (b) to read as follows:


Sec.  1003.104  Filing of Complaints; preliminary inquiries; 
resolutions; referrals of complaints.

* * * * *
    (b) Preliminary inquiry. Upon receipt of a disciplinary complaint 
or on its own initiative, the EOIR disciplinary counsel will initiate a 
preliminary inquiry. If a complaint is filed by a client or former 
client, the complainant thereby waives the attorney-client privilege 
and any other privilege relating to the representation to the extent 
necessary to conduct a preliminary inquiry and any subsequent 
proceedings based thereon. If the EOIR disciplinary counsel determines 
that a complaint is without merit, no further action will be taken. The 
EOIR disciplinary counsel may, in his or her discretion, close a 
preliminary inquiry if the complainant fails to comply with reasonable 
requests for assistance, information, or documentation. The complainant 
and the practitioner shall be notified of any such determination in 
writing.
* * * * *
0
10. In Sec.  1003.105, revise paragraph (a)(1), the first sentence of 
paragraph (c)(1), the last sentence of paragraph (c)(2), and paragraphs 
(c)(3), (d)(2) introductory text, and (d)(2)(ii) to read as follows:


Sec.  1003.105  Notice of Intent to Discipline.

    (a) Issuance of Notice. (1) If, upon completion of the preliminary 
inquiry, the EOIR disciplinary counsel determines that sufficient prima 
facie evidence exists to warrant charging a practitioner with 
professional misconduct as set forth in Sec.  1003.102 or a recognized 
organization with misconduct as set forth in Sec.  1003.110, he or she 
will file with the Board and issue to the practitioner or organization 
that was the subject of the preliminary inquiry a Notice of Intent to 
Discipline. In cases involving practitioners, service of the notice 
will be made upon the practitioner either by certified mail to his or 
her last known address, as defined in paragraph (a)(2) of this section, 
or by personal delivery. In cases involving recognized organizations, 
service of the notice will be made upon the authorized officer of the 
organization either by certified mail at the address of the 
organization or by personal delivery. The notice shall contain a 
statement of the charge(s), a copy of the preliminary inquiry report, 
the proposed disciplinary sanctions to be imposed, the procedure for 
filing an answer or requesting a hearing, and the mailing address and 
telephone number of the Board. In summary disciplinary proceedings 
brought pursuant to

[[Page 59534]]

Sec.  1003.103(b), a preliminary inquiry report is not required to be 
filed with the Notice of Intent to Discipline. If a Notice of Intent to 
Discipline is filed against an accredited representative, the EOIR 
disciplinary counsel shall send a copy of the notice to the authorized 
officer of the recognized organization through which the representative 
is accredited at the address of the organization.
* * * * *
    (c) Answer. (1) Filing. The practitioner or, in cases involving a 
recognized organization, the organization shall file a written answer 
to the Notice of Intent to Discipline with the Board within 30 days of 
the date of service of the Notice of Intent to Discipline unless, on 
motion to the Board, an extension of time to answer is granted for good 
cause. * * *
    (2) * * * The practitioner or, in cases involving a recognized 
organization, the organization may also state affirmatively special 
matters of defense and may submit supporting documents, including 
affidavits or statements, along with the answer.
    (3) Request for hearing. The practitioner or, in cases involving a 
recognized organization, the organization shall also state in the 
answer whether a hearing on the matter is requested. If no such request 
is made, the opportunity for a hearing will be deemed waived.
    (d) * * *
    (2) Upon such a default by the practitioner or, in cases involving 
a recognized organization, the organization, the counsel for the 
government shall submit to the Board proof of service of the Notice of 
Intent to Discipline. The practitioner or the organization shall be 
precluded thereafter from requesting a hearing on the matter. The Board 
shall issue a final order adopting the proposed disciplinary sanctions 
in the Notice of Intent to Discipline unless to do so would foster a 
tendency toward inconsistent dispositions for comparable conduct or 
would otherwise be unwarranted or not in the interests of justice. With 
the exception of cases in which the Board has already imposed an 
immediate suspension pursuant to Sec.  1003.103 or that otherwise 
involve an accredited representative or recognized organization, any 
final order imposing discipline shall not become effective sooner than 
15 days from the date of the order to provide the practitioner 
opportunity to comply with the terms of such order, including, but not 
limited to, withdrawing from any pending immigration matters and 
notifying immigration clients of the imposition of any sanction. Any 
final order imposing discipline against an accredited representative or 
recognized organization shall become effective immediately. A 
practitioner or a recognized organization may file a motion to set 
aside a final order of discipline issued pursuant to this paragraph, 
with service of such motion on counsel for the government, provided:
* * * * *
    (ii) The practitioner's or the recognized organization's failure to 
file an answer was due to exceptional circumstances (such as serious 
illness of the practitioner or death of an immediate relative of the 
practitioner, but not including less compelling circumstances) beyond 
the control of the practitioner or the recognized organization.
0
11. In Sec.  1003.106, revise paragraph (a)(2) introductory text, 
paragraphs (a)(2)(i) through (iii), paragraph (a)(3) introductory text, 
and paragraphs (a)(3)(ii), (b), and (c) to read as follows:


Sec.  1003.106  Right to be heard and disposition.

    (a) * * *
    (2) The procedures of paragraphs (b) through (d) of this section 
apply to cases in which the practitioner or recognized organization 
files a timely answer to the Notice of Intent to Discipline, with the 
exception of cases in which the Board issues a final order pursuant to 
Sec.  1003.105(d)(2) or Sec.  1003.106(a)(1).
    (i) The Chief Immigration Judge shall, upon the filing of an 
answer, appoint an Immigration Judge as an adjudicating official. At 
the request of the Chief Immigration Judge, the Chief Administrative 
Hearing Officer may appoint an Administrative Law Judge as an 
adjudicating official. If the Chief Immigration Judge or the Chief 
Administrative Hearing Officer does not appoint an adjudicating 
official or if in the interest of efficiency, the Director may appoint 
either an Immigration Judge or Administrative Law Judge as an 
adjudicating official. An Immigration Judge or Administrative Law Judge 
shall not serve as the adjudicating official in any case in which he or 
she is the complainant, in any case involving a practitioner who 
regularly appears before him or her, or in any case involving a 
recognized organization whose representatives regularly appear before 
him or her.
    (ii) Upon the practitioner's or, in cases involving a recognized 
organization, the organization's request for a hearing, the 
adjudicating official may designate the time and place of the hearing 
with due regard to the location of the practitioner's practice or 
residence or of the recognized organization, the convenience of 
witnesses, and any other relevant factors. When designating the time 
and place of a hearing, the adjudicating official shall provide for the 
service of a notice of hearing, as the term ``service'' is defined in 
Sec.  1003.13, on the practitioner or the authorized officer of the 
recognized organization and the counsel for the government. The 
practitioner or the recognized organization shall be afforded adequate 
time to prepare his, her, or its case in advance of the hearing. Pre-
hearing conferences may be scheduled at the discretion of the 
adjudicating official in order to narrow issues, to obtain stipulations 
between the parties, to exchange information voluntarily, and otherwise 
to simplify and organize the proceeding. Settlement agreements reached 
after the issuance of a Notice of Intent to Discipline are subject to 
final approval by the adjudicating official or, if the practitioner or 
organization has not filed an answer, subject to final approval by the 
Board.
    (iii) The practitioner or, in cases involving a recognized 
organization, the organization may be represented by counsel at no 
expense to the government. Counsel for the practitioner or the 
organization shall file the appropriate Notice of Entry of Appearance 
(Form EOIR-27 or EOIR-28) in accordance with the procedures set forth 
in this part. Each party shall have a reasonable opportunity to examine 
and object to evidence presented by the other party, to present 
evidence, and to cross-examine witnesses presented by the other party. 
If the practitioner or the recognized organization files an answer but 
does not request a hearing, then the adjudicating official shall 
provide the parties an opportunity to submit briefs and evidence to 
support or refute any of the charges or affirmative defenses.
* * * * *
    (3) Failure to appear in proceedings. If the practitioner or, in 
cases involving a recognized organization, the organization requests a 
hearing as provided in Sec.  1003.105(c)(3) but fails to appear, the 
adjudicating official shall then proceed and decide the case in the 
absence of the practitioner or the recognized organization in 
accordance with paragraph (b) of this section, based on the available 
record, including any additional evidence or arguments presented by the 
counsel for the government at the hearing. In such a proceeding the 
counsel for the government shall submit to the adjudicating official 
proof of service of

[[Page 59535]]

the Notice of Intent to Discipline as well as the Notice of the 
Hearing. The practitioner or the recognized organization shall be 
precluded thereafter from participating further in the proceedings. A 
final order imposing discipline issued pursuant to this paragraph shall 
not be subject to further review, except that the practitioner or the 
recognized organization may file a motion to set aside the order, with 
service of such motion on counsel for the government, provided:
* * * * *
    (ii) The practitioner's or the recognized organization's failure to 
appear was due to exceptional circumstances (such as serious illness of 
the practitioner or death of an immediate relative of the practitioner, 
but not including less compelling circumstances) beyond the control of 
the practitioner or the recognized organization.
    (b) Decision. The adjudicating official shall consider the entire 
record and, as soon as practicable, render a decision. If the 
adjudicating official finds that one or more grounds for disciplinary 
sanctions enumerated in the Notice of Intent to Discipline have been 
established by clear and convincing evidence, the official shall rule 
that the disciplinary sanctions set forth in the Notice of Intent to 
Discipline be adopted, modified, or otherwise amended. If the 
adjudicating official determines that the practitioner should be 
suspended, the time period for such suspension shall be specified. If 
the adjudicating official determines that the organization's 
recognition should be revoked, the official may also identify the 
persons affiliated with the organization who were directly involved in 
the conduct that constituted the grounds for revocation. If the 
adjudicating official determines that the organization's recognition 
should be terminated, the official shall specify the time restriction, 
if any, before the organization may submit a new request for 
recognition. Any grounds for disciplinary sanctions enumerated in the 
Notice of Intent to Discipline that have not been established by clear 
and convincing evidence shall be dismissed. The adjudicating official 
shall provide for service of a written decision or memorandum 
summarizing an oral decision, as the term ``service'' is defined in 
Sec.  1003.13, on the practitioner or, in cases involving a recognized 
organization, on the authorized officer of the organization and on the 
counsel for the government. Except as provided in paragraph (a)(2) of 
this section, the adjudicating official's decision becomes final only 
upon waiver of appeal or expiration of the time for appeal to the 
Board, whichever comes first, nor does it take effect during the 
pendency of an appeal to the Board as provided in Sec.  1003.6. A final 
order imposing discipline against an accredited representative or 
recognized organization shall take effect immediately.
    (c) Appeal. Upon issuance of a decision by the adjudicating 
official, either party or both parties may appeal to the Board to 
conduct a review pursuant to Sec.  1003.1(d)(3). Parties must comply 
with all pertinent provisions for appeals to the Board, including 
provisions relating to forms and fees, as set forth in Part 1003, and 
must use Form EOIR-45. The decision of the Board is the final 
administrative order as provided in Sec.  1003.1(d)(7), and shall be 
served upon the practitioner or, in cases involving a recognized 
organization, the organization as provided in Sec.  1003.1(f). With the 
exception of cases in which the Board has already imposed an immediate 
suspension pursuant to Sec.  1003.103 or cases involving accredited 
representatives or recognized organizations, any final order imposing 
discipline shall not become effective sooner than 15 days from the date 
of the order to provide the practitioner opportunity to comply with the 
terms of such order, including, but not limited to, withdrawing from 
any pending immigration matters and notifying immigration clients of 
the imposition of any sanction. A final order imposing discipline 
against an accredited representative or recognized organization shall 
take effect immediately. A copy of the final administrative order of 
the Board shall be served upon the counsel for the government. If 
disciplinary sanctions are imposed against a practitioner or a 
recognized organization (other than a private censure), the Board may 
require that notice of such sanctions be posted at the Board, the 
Immigration Courts, or DHS for the period of time during which the 
sanctions are in effect, or for any other period of time as determined 
by the Board.
* * * * *
0
12. In Sec.  1003.107, revise paragraphs (a) and (b), redesignate 
paragraph (c) as paragraph (d), and add new paragraph (c) to read as 
follows:


Sec.  1003.107  Reinstatement after disbarment or suspension.

    (a) Reinstatement upon expiration of suspension. (1) Except as 
provided in paragraph (c)(1) of this section, after the period of 
suspension has expired, a practitioner who has been suspended and 
wishes to be reinstated must file a motion to the Board requesting 
reinstatement to practice before the Board and the Immigration Courts, 
or DHS, or before all three authorities. The practitioner must 
demonstrate by clear and convincing evidence that he or she meets the 
definition of attorney or representative as set forth in Sec.  
1001.1(f) and (j), respectively, of this chapter. The practitioner must 
serve a copy of such motion on the EOIR disciplinary counsel. In 
matters in which the practitioner was ordered suspended from practice 
before DHS, the practitioner must serve a copy of such motion on the 
DHS disciplinary counsel.
    (2) The EOIR disciplinary counsel and, in matters in which the 
practitioner was ordered suspended from practice before DHS, the DHS 
disciplinary counsel may reply within 13 days of service of the motion 
in the form of a written response objecting to the reinstatement on the 
ground that the practitioner failed to comply with the terms of the 
suspension. The response must include supporting documentation or 
evidence of the petitioner's failure to comply with the terms of the 
suspension. The Board, in its discretion, may afford the parties 
additional time to file briefs or hold a hearing to determine if the 
practitioner meets all the requirements for reinstatement.
    (3) If a practitioner does not meet the definition of attorney or 
representative, the Board shall deny the motion for reinstatement 
without further consideration. If the practitioner failed to comply 
with the terms of the suspension, the Board shall deny the motion and 
indicate the circumstances under which the practitioner may apply for 
reinstatement. If the practitioner meets the definition of attorney or 
representative and the practitioner otherwise has complied with the 
terms of the suspension, the Board shall grant the motion and reinstate 
the practitioner.
    (b) Early reinstatement. (1) Except as provided in paragraph (c) of 
this section, a practitioner who has been disbarred or who has been 
suspended for one year or more may file a petition for reinstatement 
directly with the Board after one-half of the suspension period has 
expired or one year has passed, whichever is greater, provided that he 
or she meets the definition of attorney or representative as set forth 
in Sec.  1001.1(f) and (j), respectively, of this chapter. A copy of 
such a petition shall be served on the EOIR disciplinary counsel. In 
matters in which the practitioner was ordered disbarred or

[[Page 59536]]

suspended from practice before DHS, a copy of such petition shall be 
served on the DHS disciplinary counsel.
    (2) A practitioner seeking early reinstatement must demonstrate by 
clear and convincing evidence that he or she possesses the moral and 
professional qualifications required to appear before the Board, the 
Immigration Courts, or DHS, and that his or her reinstatement will not 
be detrimental to the administration of justice. The EOIR disciplinary 
counsel and, in matters in which the practitioner was ordered disbarred 
or suspended from practice before DHS, the DHS disciplinary counsel may 
reply within 30 days of service of the petition in the form of a 
written response to the Board, which may include, but is not limited 
to, documentation or evidence of the practitioner's failure to comply 
with the terms of the disbarment or suspension or of any complaints 
filed against the disbarred or suspended practitioner subsequent to his 
or her disbarment or suspension.
    (c) Accredited representatives. (1) An accredited representative 
who has been suspended for a period of time greater than the remaining 
period of validity of his or her accreditation at the time of the 
suspension is not eligible to be reinstated under Sec.  1003.107(a) or 
(b). In such circumstances, after the period of suspension has expired, 
an organization may submit a new request for accreditation pursuant to 
8 CFR 1292.13 on behalf of such an individual.
    (2) Disbarment. An accredited representative who has been disbarred 
is permanently barred from appearing before the Board, the Immigration 
Courts, or DHS as an accredited representative and cannot seek 
reinstatement.
* * * * *
0
13. In Sec.  1003.108, revise paragraph (a) introductory text, 
paragraphs (a)(1)(i) through (iv), and paragraph (a)(2)(iv), add 
paragraph (a)(3), and revise paragraph (b) to read as follows:


Sec.  1003.108  Confidentiality.

    (a) Complaints and preliminary inquiries. Except as otherwise 
provided by law or regulation, information concerning complaints or 
preliminary inquiries is confidential. A practitioner or recognized 
organization whose conduct is the subject of a complaint or preliminary 
inquiry, however, may waive confidentiality, except that the EOIR 
disciplinary counsel may decline to permit a waiver of confidentiality 
if it is determined that an ongoing preliminary inquiry may be 
substantially prejudiced by public disclosure before the filing of a 
Notice of Intent to Discipline.
    (1) * * *
    (i) A practitioner or recognized organization has caused, or is 
likely to cause, harm to client(s), the public, or the administration 
of justice, such that the public or specific individuals should be 
advised of the nature of the allegations. If disclosure of information 
is made pursuant to this paragraph, the EOIR disciplinary counsel may 
define the scope of information disseminated and may limit the 
disclosure of information to specified individuals and entities;
    (ii) A practitioner or recognized organization has committed 
criminal acts or is under investigation by law enforcement authorities;
    (iii) A practitioner or recognized organization is under 
investigation by a disciplinary or regulatory authority, or has 
committed acts or made omissions that may reasonably result in 
investigation by such authorities;
    (iv) A practitioner or recognized organization is the subject of 
multiple disciplinary complaints and the EOIR disciplinary counsel has 
determined not to pursue all of the complaints. The EOIR disciplinary 
counsel may inform complainants whose allegations have not been pursued 
of the status of any other preliminary inquiries or the manner in which 
any other complaint(s) against the practitioner or recognized 
organization have been resolved.
    (2) * * *
    (iv) To the practitioner or recognized organization who is the 
subject of the complaint or preliminary inquiry or the practitioner's 
or recognized organization's counsel of record.
* * * * *
    (3) Disclosure of information for the purpose of recognition of 
organizations and accreditation of representatives. The EOIR 
disciplinary counsel, in the exercise of discretion, may disclose 
information concerning complaints or preliminary inquiries regarding 
applicants for recognition and accreditation, recognized organizations 
or their authorized officers, or accredited representatives to the OLAP 
Director for any purpose related to the recognition of organizations 
and accreditation of representatives.
    (b) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions reached prior to the issuance of a Notice of 
Intent to Discipline, such as warning letters, admonitions, and 
agreements in lieu of discipline are confidential, except that 
resolutions that pertain to an accredited representative may be 
disclosed to the accredited representative's organization and the OLAP 
Director. However, all such resolutions may become part of the public 
record if the practitioner becomes subject to a subsequent Notice of 
Intent to Discipline.
* * * * *
0
14. Add Sec. Sec.  1003.110 and 1003.111 to read as follows:


Sec.  1003.110  Sanction of recognized organizations.

    (a) Authority to sanction. (1) An adjudicating official or the 
Board may impose disciplinary sanctions against a recognized 
organization if it is in the public interest to do so. It will be in 
the public interest to impose disciplinary sanctions if a recognized 
organization has engaged in the conduct described in paragraph (b). In 
accordance with the disciplinary proceedings set forth in this subpart, 
an adjudicating official or the Board may impose the following 
sanctions:
    (i) Revocation, which removes the organization and its accredited 
representatives from the recognition and accreditation roster and 
permanently bars the organization from future recognition;
    (ii) Termination, which removes the organization and its accredited 
representatives from the recognition and accreditation roster but does 
not bar the organization from future recognition. In terminating 
recognition under this section, the adjudicating official or the Board 
may preclude the organization from submitting a new request for 
recognition under 8 CFR 1292.13 before a specified date; or
    (iii) Such other disciplinary sanctions, except a suspension, as 
the adjudicating official or the Board deems appropriate.
    (2) The administrative termination of an organization's recognition 
under 8 CFR 1292.17 after the issuance of Notice of Intent to 
Discipline pursuant to Sec.  1003.105(a)(1) shall not preclude the 
continuation of disciplinary proceedings and the imposition of 
sanctions, unless counsel for the government moves to dismiss the 
Notice of Intent to Discipline and the adjudicating official or the 
Board grants the motion.
    (3) The imposition of disciplinary sanctions against a recognized 
organization does not result in disciplinary sanctions against that 
organization's accredited representatives; disciplinary sanctions, if 
any, against an organization's accredited representatives must be 
imposed separately from disciplinary sanctions against the 
organization. Termination or revocation of an organization's 
recognition has the effect

[[Page 59537]]

of terminating the accreditation of representatives of that 
organization, but such individuals may retain or seek accreditation 
through another recognized organization.
    (b) Grounds. It shall be deemed to be in the public interest for an 
adjudicating official or the Board to impose disciplinary sanctions 
against any recognized organization that violates one or more of the 
grounds specified in this paragraph, except that these grounds do not 
constitute the exclusive grounds for which disciplinary sanctions may 
be imposed in the public interest. A recognized organization may be 
subject to disciplinary sanctions if it:
    (1) Knowingly or with reckless disregard provides a false statement 
or misleading information in applying for recognition or accreditation 
of its representatives;
    (2) Knowingly or with reckless disregard provides false or 
misleading information to clients or prospective clients regarding the 
scope of authority of, or the services provided by, the organization or 
its accredited representatives;
    (3) Fails to adequately supervise accredited representatives; or
    (4) Employs, receives services from, or affiliates with an 
individual who performs an activity that constitutes the unauthorized 
practice of law or immigration fraud.
    (c) Joint disciplinary proceedings. The EOIR disciplinary counsel 
or DHS disciplinary counsel may file a Notice of Intent to Discipline 
against a recognized organization and one or more of its accredited 
representatives pursuant to Sec.  1003.101 et seq. Disciplinary 
proceedings conducted on such notices, if they are filed jointly with 
the Board, shall be joined and referred to the same adjudicating 
official pursuant to Sec.  1003.106. An adjudicating official may join 
related disciplinary proceedings after the filing of a Notice of Intent 
to Discipline.


Sec.  1003.111  Interim suspension.

    (a) Petition for interim suspension--(1) EOIR Petition. In 
conjunction with the filing of a Notice of Intent to Discipline or at 
any time thereafter during disciplinary proceedings before an 
adjudicating official, the EOIR disciplinary counsel may file a 
petition for an interim suspension of an accredited representative. 
Such suspension, if issued, precludes the representative from 
practicing before the Board and the Immigration Courts during the 
pendency of disciplinary proceedings and continues until the issuance 
of a final order in the disciplinary proceedings.
    (2) DHS Petition. In conjunction with the filing of a Notice of 
Intent to Discipline or at any time thereafter during disciplinary 
proceedings before an adjudicating official, the DHS disciplinary 
counsel may file a petition for an interim suspension of an accredited 
representative. Such suspension, if issued, precludes the 
representative from practicing before DHS during the pendency of 
disciplinary proceedings and continues until the issuance of a final 
order in the disciplinary proceedings.
    (3) Contents of the petition. In the petition, counsel for the 
government must demonstrate by a preponderance of the evidence that the 
accredited representative poses a substantial threat of irreparable 
harm to clients or prospective clients. An accredited representative 
poses a substantial threat of irreparable harm to clients or 
prospective clients if the representative committed three or more acts 
in violation of the grounds of discipline described at Sec.  1003.102, 
when actual harm or threatened harm is demonstrated, or any other 
conduct that, if continued, will likely cause irreparable harm to 
clients or prospective clients. Counsel for the government must serve 
the petition on the accredited representative, as provided in Sec.  
1003.105, and send a copy of the petition to the authorized officer of 
the recognized organization at the address of the organization through 
which the representative is accredited.
    (4) Requests to broaden scope. The EOIR disciplinary counsel or DHS 
disciplinary counsel may submit a request to broaden the scope of any 
interim suspension order such that an accredited representative would 
be precluded from practice before the Board, the Immigration Courts, 
and DHS.
    (b) Response. The accredited representative may file a written 
response to the petition for interim suspension within 30 days of 
service of the petition.
    (c) Adjudication. Upon the expiration of the time to respond to the 
petition for an interim suspension, the adjudicating official will 
consider the petition for an interim suspension, the accredited 
representative's response, if any, and any other evidence presented by 
the parties before determining whether to issue an interim suspension. 
If the adjudicating official imposes an interim suspension on the 
representative, the adjudicating official may require that notice of 
the interim suspension be posted at the Board and the Immigration 
Courts, or DHS, or all three authorities. Upon good cause shown, the 
adjudicating official may set aside an order of interim suspension when 
it appears in the interest of justice to do so. If a final order in the 
disciplinary proceedings includes the imposition of a period of 
suspension against an accredited representative, time spent by the 
representative under an interim suspension pursuant to this section may 
be credited toward the period of suspension imposed under the final 
order.

PART 1103--APPEALS, RECORDS, AND FEES

0
15. The authority citation for part 1103 continues to read as follows:


    Authority:  8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 
U.S.C. 509, 510

0
16. In Sec.  1103.3, revise paragraph (a), remove and reserve paragraph 
(b), and revise paragraph (c).
    The revsions read as follows:


Sec.  1103.3  Denials, appeals, and precedent decisions.

    (a) The regulations pertaining to denials, appeals, and precedent 
decisions of the Department of Homeland Security are contained in 8 CFR 
103.3.
* * * * *
    (c) DHS precedent decisions. The Secretary of Homeland Security, or 
specific officials of the Department of Homeland Security designated by 
the Secretary with the concurrence of the Attorney General, may file 
with the Attorney General decisions relating to the administration of 
the immigration laws of the United States for publication as precedent 
in future proceedings, and upon approval of the Attorney General as to 
the lawfulness of such decision, the Director of the Executive Office 
for Immigration Review shall cause such decisions to be published in 
the same manner as decisions of the Board and the Attorney General.
* * * * *

PART 1212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
17. The authority citation for part 1212 continues to read as follows:

    Authority:  8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458); Title VII of Pub. L. 110-229.

0
18. Revise Sec.  1212.6 to read as follows:

[[Page 59538]]

Sec.  1212.6  Border crossing identification cards.

    The regulations of the Department of Homeland Security pertaining 
to border crossing identification cards can be found at 8 CFR 212.6.

PART 1292--REPRESENTATION AND APPEARANCES

0
19. Revise the authority citation for part 1292 to read as follows:

    Authority:  8 U.S.C. 1103, 1362.

0
20. In part 1292, before Sec.  1292.1, add an undesignated center 
heading to read ``In General''.
0
21. In Sec.  1292.1, revise paragraph (a)(4) to read as follows:


Sec.  1292.1  Representation of others.

    (a) * * *
    (4) Accredited representative. An individual whom EOIR has 
authorized to represent immigration clients on behalf of a recognized 
organization, and whose period of accreditation is current and has not 
expired. A partially accredited representative is authorized to 
practice solely before DHS. A fully accredited representative is 
authorized to practice before DHS, and upon registration, to practice 
before the Immigration Courts and the Board.
* * * * *


Sec.  1292.2  [Removed and Reserved]

0
22. Remove and reserve Sec.  1292.2.
0
23. Revise Sec.  1292.3 to read as follows:


Sec.  1292.3  Conduct for practitioners and recognized organizations--
Rules and Procedures.

    Practitioners, as defined in Sec.  1003.101(b) of this chapter, and 
recognized organizations are subject to the imposition of sanctions as 
provided in 8 CFR part 1003, subpart G, Sec.  1003.101 et seq., and 8 
CFR 292.3 (pertaining to practice before DHS).
0
24. Revise Sec.  1292.6 to read as follows:


Sec.  1292.6  Interpretation.

    Interpretations of Sec. Sec.  1292.1 through 1292.6 will be made by 
the Board, subject to the provisions of part 1003 of this chapter. 
Interpretations of Sec. Sec.  1292.11 through 1292.19 will be made by 
the OLAP Director.
0
25. Add Sec. Sec.  1292.11 through 1292.19, with an undesignated center 
heading preceding Sec.  1292.11, to read as follows:

Sec.
* * * * *

Recognition of Organizations and Accreditation of Non-Attorney 
Representatives

1292.11 Recognition of an organization.
1292.12 Accreditation of representatives.
1292.13 Applying for recognition of organizations or accreditation 
of representatives.
1292.14 Reporting, recordkeeping, and posting requirements for 
recognized organizations.
1292.15 Extension of recognition and accreditation to multiple 
offices or locations of an organization.
1292.16 Renewal of recognition and accreditation.
1292.17 Administrative termination of recognition and accreditation.
1292.18 Complaints against recognized organizations and accredited 
representatives.
1292.19 Roster of recognized organizations and accredited 
representatives.
* * * * *

Recognition of Organizations and Accreditation of Non-Attorney 
Representatives


Sec.  1292.11  Recognition of an organization.

    (a) In general. The OLAP Director, in the exercise of discretion, 
may recognize an eligible organization to provide representation 
through accredited representatives who appear on behalf of clients 
before the Immigration Courts, the Board, and DHS, or DHS alone. The 
OLAP Director will determine whether an organization is eligible for 
recognition. To be eligible for recognition, the organization must 
establish that:
    (1) The organization is a non-profit, Federal tax-exempt religious, 
charitable, social service, or similar organization established in the 
United States;
    (2) The organization is simultaneously applying to have at least 
one employee or volunteer of the organization approved as an accredited 
representative by the OLAP Director and at least one application for 
accreditation is concurrently approved;
    (3) A substantial amount of the organization's immigration legal 
services budget is derived from sources other than funds provided by or 
on behalf of the immigration clients themselves (such as legal fees, 
donations, or membership dues);
    (4) The organization provides immigration legal services primarily 
to low-income and indigent clients within the United States and if the 
organization charges fees, has a written policy for accommodating 
clients unable to pay fees for immigration legal services;
    (5) The organization has access to adequate knowledge, information, 
and experience in all aspects of immigration law and procedure; and
    (6) The organization has designated an authorized officer to act on 
behalf of the organization.
    (b) Proof of status as non-profit religious, charitable, social 
service, or similar organization established in the United States. The 
organization must submit a copy of its organizing documents, including 
a statement of its mission or purpose.
    (c) Proof of tax-exempt status. The organization must submit a copy 
of its currently valid IRS tax-exemption determination letter and a 
copy of the first page of its last annual IRS information return (such 
as the IRS Form 990, 990-N, or 990-T) or otherwise demonstrate that the 
organization is not required to file a return. If an IRS tax-exemption 
determination letter has not been issued, the organization must submit 
proof that it has applied for tax-exempt status.
    (d) Proof of funding and service to low-income and indigent 
clients. The organization must submit an annual budget for providing 
immigration legal services, a declaration from its authorized officer, 
and any additional documentation to demonstrate that the organization 
provides immigration legal services primarily to low-income and 
indigent clients within the United States, that the organization 
derives a substantial amount of its immigration legal services budget 
from sources other than funds provided by or on behalf of the 
immigration clients themselves, and, if the organization charges fees, 
that it has a written policy for accommodating clients unable to pay 
fees for immigration legal services.
    (1) Annual budget. The organization must submit its annual budget 
for providing immigration legal services for the current year and, if 
available, its annual budget for providing immigration legal service 
for the prior year. If the annual budgets for both the current and 
prior year are unavailable, the organization must submit its projected 
annual budget for the upcoming year. The annual budget should describe 
how the organization is funded and include information about the 
organization's operating expenses and sources of revenue for providing 
immigration legal services. Sources of revenue may include, but are not 
limited to, grants, fees, donations, or dues.
    (2) Declaration. The authorized officer must attest that the 
organization provides immigration legal services primarily to low-
income and indigent clients within the United States.
    (3) Waiver. The organization may request a waiver of the 
requirement that a substantial amount of the organization's annual 
immigration legal services budget is derived from sources other than 
funds provided by or on behalf of the immigration clients

[[Page 59539]]

themselves. To support its request for a waiver, the organization must 
submit documentation to show that a waiver would be in the public 
interest.
    (4) Additional documentation. Additional documentation may include, 
but is not limited to, a fee schedule and organizational policies and 
guidance regarding fee waivers or reduced fees based on financial need.
    (e) Proof of knowledge, information, and experience. The 
organization must submit: A description of the immigration legal 
services that the organization seeks to offer; a description of the 
legal resources to which the organization has access; an organizational 
chart showing names, titles, and supervisors of immigration legal staff 
members; a description of the qualifications, experience, and breadth 
of immigration knowledge of these staff members, including, but not 
limited to resumes, letters of recommendation, certifications, and a 
list of all relevant, formal immigration-related trainings attended by 
staff members; and any agreement or proof of a formal arrangement 
entered into with non-staff immigration practitioners and recognized 
organizations for consultations or technical legal assistance.
    (f) Validity period of recognition. Recognition is valid for a 
period of three years from the date of the OLAP Director's approval of 
recognition, unless the organization has been granted conditional 
recognition. Conditional recognition is granted to an organization that 
has not been recognized previously or that has been approved for 
recognition after recognition was previously terminated pursuant to 
Sec.  1292.17 or 8 CFR 1003.101 et seq. Conditional recognition is 
valid for two years from the date of the OLAP Director's approval of 
conditional recognition. Any organization's recognition is subject to 
being terminated pursuant to Sec.  1292.17 or upon the issuance of 
disciplinary sanctions (termination or revocation) under 8 CFR 1003.101 
et seq.


Sec.  1292.12  Accreditation of representatives.

    (a) In general. Only recognized organizations, or organizations 
simultaneously applying for recognition, may request accreditation of 
individuals. The OLAP Director, in the exercise of discretion, may 
approve accreditation of an eligible individual as a representative of 
a recognized organization for either full or partial accreditation. An 
individual who receives full accreditation may represent clients before 
the Immigration Courts, the Board and DHS. An individual who receives 
partial accreditation may represent clients only before DHS. In the 
request for accreditation, the organization must specify whether it 
seeks full or partial accreditation and establish eligibility for 
accreditation for the individual. To establish eligibility for 
accreditation, an organization must demonstrate that the individual for 
whom the organization seeks accreditation:
    (1) Has the character and fitness to represent clients before the 
Immigration Courts and the Board, or DHS, or before all three 
authorities. Character and fitness includes, but is not limited to, an 
examination of factors such as: Criminal background; prior acts 
involving dishonesty, fraud, deceit, or misrepresentation; past history 
of neglecting professional, financial, or legal obligations; and 
current immigration status;
    (2) Is employed by or is a volunteer of the organization;
    (3) Is not an attorney as defined in 8 CFR 1001.1(f);
    (4) Has not resigned while a disciplinary investigation or 
proceeding is pending and is not subject to any order disbarring, 
suspending, enjoining, restraining, or otherwise restricting him or her 
in the practice of law or representation before a court or any 
administrative agency;
    (5) Has not been found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in 8 CFR 1003.102(h), in any 
court of the United States, or of any state, possession, territory, 
commonwealth, or the District of Columbia, or of a jurisdiction outside 
of the United States; and
    (6) Possesses broad knowledge and adequate experience in 
immigration law and procedure. If an organization seeks full 
accreditation for an individual, it must establish that the individual 
also possesses skills essential for effective litigation.
    (b) Request for accreditation. To establish that an individual 
satisfies the requirements of paragraph (a), the organization must 
submit a request for accreditation (Form EOIR-31A and supporting 
documents). The request for accreditation must be signed by the 
authorized officer and the individual to be accredited, both attesting 
that the individual satisfies these requirements.
    (c) Proof of knowledge and experience. To establish that the 
individual satisfies the requirement in paragraph (a)(6) of this 
section, the organization must submit with its request for 
accreditation, at minimum: A description of the individual's 
qualifications, including education and immigration law experience; 
letters of recommendation from at least two persons familiar with the 
individual's qualifications; and documentation of all relevant, formal 
immigration-related training, including a course on the fundamentals of 
immigration law, procedure, and practice. An organization must also 
submit documentation that an individual for whom the organization seeks 
full accreditation has formal training, education, or experience 
related to trial and appellate advocacy.
    (d) Validity period of accreditation. Accreditation is valid for 
the same period as the recognition of the organization that applied for 
accreditation, unless the organization's recognition or the 
representative's accreditation is terminated pursuant to Sec.  1292.17 
or the organization or the representative is subject to disciplinary 
sanctions (termination, revocation, suspension, or disbarment) under 8 
CFR 1003.101 et seq.
    (e) Change in accreditation. An organization may request to change 
the accreditation of a representative from partial to full 
accreditation at any time during the validity period of accreditation 
or at renewal. Such a request will be treated as a new, initial request 
for full accreditation and must comply with this section.


Sec.  1292.13  Applying for recognition of organizations or 
accreditation of representatives.

    (a) In general. An organization applying for recognition or 
accreditation of a representative must submit a request for recognition 
(Form EOIR-31) or a request for accreditation (Form EOIR-31A) to the 
OLAP Director with proof of service of a copy of the request on each 
USCIS district director in the jurisdictions where the organization 
offers or intends to offer immigration legal services. An organization 
must submit a separate request for accreditation (Form EOIR-31A) for 
each individual for whom it seeks accreditation. To determine whether 
an organization has established eligibility for recognition or 
accreditation of a representative, the OLAP Director shall review all 
information contained in the request for recognition or accreditation 
and may review any publicly available information or any other 
information that OLAP may possess about the organization, its 
authorized officer, or the proposed representative or may have received 
pursuant to paragraphs (b), (c), and (d) of this section. Unfavorable 
information obtained by the OLAP Director that may be relied upon to 
disapprove a recognition or accreditation request, if not previously

[[Page 59540]]

served on the organization, shall be disclosed to the organization, and 
the organization shall be given a reasonable opportunity to respond. 
Prior to determining whether to approve or disapprove a request for 
recognition or accreditation, the OLAP Director may request additional 
information from the organization pertaining to the eligibility 
requirements for recognition or accreditation. The OLAP Director, in 
writing, shall inform the organization and each USCIS district director 
in the jurisdictions where the organization offers or intends to offer 
immigration legal services of the determination approving or 
disapproving the organization's request for recognition or 
accreditation of a representative. The OLAP Director may, in the 
exercise of discretion, extend the deadlines provided in this section.
    (b) USCIS recommendation and investigation. Within 30 days from the 
date of service of the request for recognition or accreditation, each 
USCIS district director served with the request may submit to the OLAP 
Director a recommendation for approval or disapproval of the request 
for recognition or accreditation including an explanation for the 
recommendation, or may request from the OLAP Director a specified 
period of additional time, generally no more than 30 days, in which to 
conduct an investigation or otherwise obtain relevant information 
regarding the organization, its authorized officer, or any individual 
for whom the organization seeks accreditation. The OLAP Director shall 
inform the organization if he or she grants a request from a USCIS 
district director for additional time to conduct an investigation, or 
if, in the exercise of discretion, the OLAP Director has requested that 
a USCIS district director conduct an investigation of the organization, 
its authorized officer, or any individual for whom the organization 
seeks accreditation. A USCIS district director must submit any 
recommendation with proof of service of a copy of the recommendation on 
the organization. Within 30 days of service of an unfavorable 
recommendation, the organization may file with the OLAP Director a 
response to the unfavorable recommendation, along with proof of service 
of a copy of such response on the USCIS district director that provided 
the recommendation.
    (c) ICE recommendation. Upon receipt of a request for recognition 
or accreditation, the OLAP Director may request a recommendation or 
information from each ICE chief counsel in the jurisdictions where the 
organization offers or intends to offer immigration legal services 
regarding the organization, its authorized officer, or any individual 
for whom the organization seeks accreditation. Within 30 days from the 
date of receipt of the OLAP Director's request, each ICE chief counsel 
may make a recommendation or disclose information regarding the 
organization, its authorized officer, or individuals for whom the 
organization seeks accreditation. An ICE chief counsel must submit any 
recommendation with proof of service of a copy of the recommendation on 
the organization. Within 30 days of service of an unfavorable 
recommendation, the organization may file with the OLAP Director a 
response to the unfavorable recommendation, along with proof of service 
of a copy of such response on the ICE chief counsel that provided the 
recommendation. The OLAP Director, in writing, shall inform each ICE 
chief counsel that provided a recommendation of the determination 
approving or disapproving the organization's request for recognition or 
accreditation of a representative.
    (d) EOIR investigation. Upon receipt of a request for recognition 
or accreditation, the OLAP Director may request that the EOIR 
disciplinary counsel or anti-fraud officer conduct an investigation 
into the organization, its authorized officer, or any individual for 
whom the organization seeks accreditation. Within 30 days from the date 
of receipt of the OLAP Director's request, the EOIR disciplinary 
counsel or anti-fraud officer may disclose to the OLAP Director 
information, including complaints, preliminary inquiries, warning 
letters, and admonitions, relating to the organization, its authorized 
officer, or any individual for whom the organization seeks 
accreditation.
    (e) Finality of decision. The OLAP Director's determination to 
approve or disapprove a request for recognition or accreditation is 
final. An organization whose request for recognition or accreditation 
was previously disapproved may submit a new request for recognition or 
accreditation at any time unless otherwise prohibited.


Sec.  1292.14  Reporting, recordkeeping, and posting requirements for 
recognized organizations.

    (a) Duty to report changes. A recognized organization has a duty to 
promptly notify the OLAP Director in writing of changes in the 
organization's contact information, changes to any material information 
the organization provided in Form EOIR-31, Form EOIR-31A, or the 
documents submitted in support thereof, or changes that otherwise 
materially relate to the organization's eligibility for recognition or 
the eligibility for accreditation of any of the organization's 
accredited representatives. These changes may include alterations to: 
The organization's name, address, telephone number, Web site address, 
email address, or the designation of the authorized officer of the 
organization; an accredited representative's name or employment or 
volunteer status with the organization; and the organization's 
structure, including a merger of organizations that have already been 
individually accorded recognition or a change in non-profit or Federal 
tax-exempt status.
    (b) Recordkeeping. A recognized organization must compile each of 
the following records in a timely manner, and retain them for a period 
of six years from the date the record is created, as long as the 
organization remains recognized:
    (1) The organization's immigration legal services fee schedule, if 
the organization charges any fees for immigration legal services, for 
each office or location where such services are provided; and
    (2) An annual report compiled by the organization regarding, for 
each accredited representative, the types and numbers of immigration 
cases and applications for which it provided immigration legal 
services, the nature of the services provided, the number of clients to 
which it provided services at no cost, the amount of fees, donations, 
and membership dues, if any, charged or requested of immigration 
clients, and the offices or locations where the immigration legal 
services were provided. OLAP may require the organization to submit 
such records to it or USCIS upon request.
    (c) Posting. The OLAP Director shall have the authority to issue 
public notices regarding recognition and accreditation and to require 
recognized organizations and accredited representatives to post such 
public notices. Information contained in the public notices shall be 
limited to: The names and validity periods of a recognized organization 
and its accredited representatives, the requirements for recognition 
and accreditation, and the means to complain about a recognized 
organization or accredited representative.


Sec.  1292.15  Extension of recognition and accreditation to multiple 
offices or locations of an organization.

    Upon approving an initial request for recognition or a request for 
renewal of

[[Page 59541]]

recognition, or at any other time, the OLAP Director, in his or her 
discretion, may extend the recognition of an organization to any office 
or location where the organization offers services. To request 
extension of recognition, an organization that is seeking or has 
received recognition must submit a Form EOIR-31 that identifies the 
name and address of the organization's headquarters or designated 
office and the name and address of each other office or location for 
which the organization seeks extension of recognition. The organization 
must also provide a declaration from its authorized officer attesting 
that it periodically conducts inspections of each such office or 
location, exercises supervision and control over its accredited 
representatives at those offices and locations, and provides access to 
adequate legal resources at each such office or location. OLAP may 
require an organization to seek separate recognition for an office or 
location of the organization, for example, when a subordinate office or 
location has distinct operations, management structure, or funding 
sources from the organization's headquarters. The OLAP Director's 
determination to extend recognition to the offices or locations 
identified in Form EOIR-31 permits the organization's accredited 
representatives to provide immigration legal services out of those 
offices or locations. OLAP will post the address of each office or 
location to which recognition has been extended on the roster of 
recognized organizations and accredited representatives.


Sec.  1292.16  Renewal of recognition and accreditation.

    (a) In general. To retain its recognition and the accreditation of 
its representatives after the conclusion of the validity period 
specified in Sec.  1292.11(f), an organization must submit a request 
for renewal of its recognition, in conjunction with a request for 
renewal of accreditation of each representative for whom it seeks 
renewal of accreditation, or a request for accreditation of each 
proposed representative for whom it seeks initial accreditation (Form 
EOIR-31, Form EOIR 31A, and supporting documents). The request for 
renewal of recognition may only be approved if at least one request for 
accreditation is concurrently approved or renewed.
    (b) Timing of renewal. An organization requesting renewal of 
recognition and renewal of accreditation must submit the requests on or 
before the third anniversary date of the organization's last approval 
or renewal of recognition or, for a conditionally recognized 
organization, on or before the second anniversary of the approval date 
of the conditional recognition with proof of service of a copy of the 
requests on each USCIS district director in the jurisdictions where the 
organization offers or intends to offer immigration legal services. The 
OLAP Director, in his or her discretion, may grant additional time to 
submit a request for renewal or accept a request for renewal filed out 
of time. The recognition of the organization and the accreditation of 
any representatives for whom the organization timely requests renewal 
shall remain valid pending the OLAP Director's consideration of the 
renewal requests, except in the case of an interim suspension pursuant 
to 8 CFR 1003.111.
    (c) Renewal requirements--(1) Recognition. The request for renewal 
of recognition must establish that the organization remains eligible 
for recognition under Sec.  1292.11(a), include the records specified 
in Sec.  1292.14(b) that the organization compiled since the last 
approval of recognition, and describe any unreported changes that 
impact eligibility for recognition from the date of the last approval 
of recognition.
    (2) Accreditation. Each request for renewal of accreditation must 
establish that the individual remains eligible for accreditation under 
Sec.  1292.12(a) and has continued to receive formal training in 
immigration law and procedure commensurate with the services the 
organization provides and the duration of the representative's 
accreditation. Each request for initial accreditation of a proposed 
representative submitted with a request for renewal of recognition must 
comply with Sec.  1292.12.
    (d) Recommendations and investigations. Each USCIS district 
director served with a request for renewal of recognition or a request 
for renewal of accreditation may submit to the OLAP Director a 
recommendation for approval or disapproval of that request pursuant to 
Sec.  1292.13(b). The OLAP Director may request a recommendation from 
the ICE chief counsels, or an investigation from the EOIR disciplinary 
counsel or anti-fraud officer, pursuant to Sec.  1292.13(c) and (d).
    (e) Renewal process. The OLAP Director shall review all information 
contained in the requests and may review any publicly available 
information or any other information that OLAP may possess about the 
organization, its authorized officer, or any individual for whom the 
organization seeks accreditation or renewal of accreditation or that 
OLAP may have received pursuant to Sec.  1292.13(b) through (d). 
Unfavorable information obtained by the OLAP Director that may be 
relied upon to disapprove a recognition or accreditation request, if 
not previously served on the organization, shall be disclosed to the 
organization, and the organization shall be given a reasonable 
opportunity to respond. Prior to determining whether to approve or 
disapprove a request for renewal of recognition or accreditation, the 
OLAP Director may request additional information from the organization 
pertaining to the eligibility requirements for recognition or 
accreditation. The OLAP Director, in writing, shall inform the 
organization and each USCIS district director in the jurisdictions 
where the organization offers or intends to offer immigration legal 
services of the determination to approve or disapprove a request for 
renewal of recognition. If the OLAP Director renews recognition, the 
OLAP Director shall issue a written determination approving or 
disapproving each request for accreditation or renewal of 
accreditation.
    (f) Finality of decision. The OLAP Director's determination to 
approve or disapprove a request to renew recognition or accreditation 
is final. An organization whose request for renewal of recognition or 
accreditation of its representatives has been disapproved, and whose 
recognition or accreditation of its representatives is terminated, may 
submit a new request for recognition and accreditation at any time 
unless otherwise prohibited.
    (g) Validity period of recognition and accreditation after renewal. 
After renewal of recognition and accreditation, the recognition of the 
organization and the accreditation of its representatives are valid for 
a period of three years from the date of the OLAP Director's 
determination to renew recognition and accreditation, unless the 
organization's recognition or the representative's accreditation is 
terminated pursuant to Sec.  1292.17 or the organization or the 
representative is subject to disciplinary sanctions (i.e., termination, 
revocation, suspension, or disbarment) under 8 CFR 1003.101 et seq.
    (h) Organizations and representatives recognized and accredited 
prior to the regulation's effective date--(1) Applicability. An 
organization or representative that received recognition or 
accreditation prior to the effective date of this regulation through 
the Board under former Sec.  1292.2 is subject to the provisions of 
this part. Such an organization or representative shall continue to be 
recognized or accredited

[[Page 59542]]

until the organization is required to request renewal of its 
recognition and accreditation of its representatives as required by 
paragraph (h)(2) of this section and pending the OLAP Director's 
determination on the organization's request for renewal if such a 
request is timely made, unless the organization's recognition or the 
representative's accreditation is terminated pursuant to Sec.  1292.17 
or the organization or the representative is subject to disciplinary 
sanctions (termination, revocation, suspension, or disbarment) under 8 
CFR 1003.101 et seq.
    (2) Renewal of recognition and accreditation. To retain its 
recognition and the accreditation of its representatives, an 
organization that received recognition prior to the effective date of 
this regulation must request renewal of its recognition and the 
accreditation of its representative(s) pursuant to this section on or 
before the following dates:
    (i) Within 1 year of the effective date of this regulation, if the 
organization does not have an accredited representative on the 
effective date of this regulation;
    (ii) Upon the submission of a request for accreditation of an 
individual who has not been previously accredited through that 
organization or a request to extend recognition and accreditation 
pursuant to Sec.  1292.15;
    (iii) Within 2 years of the effective date of this regulation, if 
the organization is not required to submit a request for renewal at an 
earlier date under paragraphs (i) or (ii) of this section, and the 
organization has been recognized for more than 10 years as of the 
effective date of this regulation; or
    (iv) Within 3 years of the effective date of this regulation, if 
the organization is not required to submit a request for renewal at an 
earlier date under paragraphs (i), (ii), or (iii) of this section.


Sec.  1292.17  Administrative termination of recognition and 
accreditation.

    (a) In general. The OLAP Director may administratively terminate an 
organization's recognition or a representative's accreditation and 
remove the organization or representative from the recognition and 
accreditation roster. Prior to issuing a determination to 
administratively terminate recognition or accreditation, the OLAP 
Director may request information from the organization, representative, 
USCIS, or EOIR, regarding the bases for termination. The OLAP Director, 
in writing, shall inform the organization and the representative, as 
applicable, of the determination to terminate the organization's 
recognition or the representative's accreditation, and the reasons for 
the determination.
    (b) Bases for administrative termination of recognition. The bases 
for termination of recognition under this section are:
    (1) An organization did not submit a request to renew its 
recognition, or to renew accreditation of a representative or to obtain 
initial accreditation for a proposed representative, at the time 
required for renewal;
    (2) An organization's request for renewal of recognition is 
disapproved;
    (3) All of the organization's accredited representatives have been 
terminated pursuant to this section or suspended or disbarred pursuant 
to 8 CFR 1003.101 et seq.;
    (4) An organization submits a written request to the OLAP Director 
for termination of its recognition;
    (5) An organization fails to comply with its reporting, 
recordkeeping, and posting requirements under Sec.  1292.14, after 
being notified of the deficiencies and having an opportunity to 
respond; or
    (6) An organization fails to maintain eligibility for recognition 
under Sec.  1292.11, after being notified of the deficiencies and 
having an opportunity to respond.
    (c) Bases for administrative termination of accreditation. The 
bases for termination of accreditation under this section are:
    (1) An individual's organization has its recognition terminated 
pursuant to this section or terminated or revoked pursuant to 8 CFR 
1003.101 et seq.;
    (2) An organization does not submit a request for renewal of the 
individual's accreditation at the time required for renewal;
    (3) An accredited representative submits a written request to the 
OLAP Director for termination of his or her accreditation;
    (4) An organization submits a written request to the OLAP Director 
for termination of the accreditation of one or more of its 
representatives; or
    (5) An individual fails to maintain eligibility for accreditation 
under Sec.  1292.12, after the individual's organization has been 
notified of the deficiencies and had an opportunity to respond.
    (d) Effect of administrative termination of recognition. The OLAP 
Director's determination to terminate recognition is final as of the 
date of service of the administrative termination notice. Upon service 
of an administrative termination notice to the organization's 
accredited representatives by OLAP, the organization's representatives 
shall no longer be authorized to represent clients before the 
Immigration Courts, the Board, or DHS on behalf of that organization, 
but the notice shall not affect an individual's accreditation through 
another recognized organization unless otherwise specified. An 
organization whose recognition is terminated may submit a new request 
for recognition at any time after its termination unless otherwise 
prohibited.
    (e) Effect of administrative termination of accreditation. The OLAP 
Director's determination to terminate accreditation is final as of the 
date of service of the administrative termination notice. Upon service 
of an administrative termination notice to an accredited representative 
by OLAP, the individual shall no longer be authorized to represent 
clients before the Immigration Courts, the Board, or DHS on behalf of 
that organization, but the notice does not affect the individual's 
accreditation through another organization unless specified in the 
determination. If there are no other accredited representatives for the 
individual's recognized organization, the OLAP Director's termination 
of the individual's accreditation may result in the termination of 
recognition of that individual's organization. In the exercise of 
discretion, the OLAP Director, independently or upon the request of 
such an organization, may place the organization on inactive status, 
which precludes the organization from providing immigration legal 
services unless it has an attorney of staff, in order for the 
organization to apply for and have approved, within a reasonable time, 
the accreditation of one or more representatives. An organization may 
submit a request for accreditation on behalf of any individual whose 
accreditation has been terminated unless otherwise prohibited.


Sec.  1292.18  Complaints against recognized organizations and 
accredited representatives.

    (a) Filing complaints. Any individual may submit a complaint to 
EOIR or USCIS that a recognized organization or accredited 
representative has engaged in behavior that is a ground of termination 
or otherwise contrary to the public interest. Complaints must be 
submitted in writing or on Form EOIR-44 to the EOIR disciplinary 
counsel or DHS disciplinary counsel and must state in detail the 
information that supports the basis for the complaint, including, but 
not limited to: The name and address of each complainant; the name and

[[Page 59543]]

address of each recognized organization and accredited representative 
that is a subject of the complaint; the nature of the conduct or 
behavior; the individuals involved; and any other relevant information. 
EOIR disciplinary counsel and DHS disciplinary counsel shall notify 
each other of any complaint that pertains, in whole or in part, to a 
matter involving the other agency.
    (b) Preliminary inquiry. Upon receipt of the complaint, the EOIR 
disciplinary counsel will initiate a preliminary inquiry. If a 
complaint is filed by a client or former client of a recognized 
organization or any of its accredited representatives, the complainant 
waives the attorney-client privilege and any other privilege relating 
to the representation to the extent necessary to conduct a preliminary 
inquiry and any subsequent proceedings based thereon. If the EOIR 
disciplinary counsel determines that a complaint is without merit, no 
further action will be taken. The EOIR disciplinary counsel may also, 
in his or her discretion, dismiss a complaint if the complainant fails 
to comply with reasonable requests for information or documentation. If 
the EOIR disciplinary counsel determines that a complaint has merit, 
the EOIR disciplinary counsel may disclose information concerning the 
complaint or the preliminary inquiry to the OLAP Director pursuant to 8 
CFR 1003.108(a)(3) or initiate disciplinary proceedings through the 
filing of a Notice of Intent to Discipline pursuant to 8 CFR 1003.105. 
If a complaint involves allegations that a recognized organization or 
accredited representative engaged in criminal conduct, the EOIR 
disciplinary counsel shall refer the matter to DHS or the appropriate 
United States Attorney, and if appropriate, to the Inspector General, 
the Federal Bureau of Investigation, or other law enforcement agency.


Sec.  1292.19  Roster of recognized organizations and accredited 
representatives.

    The OLAP Director shall maintain a roster of recognized 
organizations and their accredited representatives. An electronic copy 
of the roster shall be made available to the public and updated 
periodically.

    Dated: September 15, 2015.
Sally Quillian Yates,
Deputy Attorney General.
[FR Doc. 2015-24024 Filed 9-29-15; 11:15 am]
 BILLING CODE 4410-30-P