State Bar of California makes certification as an immigration specialist more available to California attorneys.

Sunday, November 28th, 2010
By: Jonathan MontagJ.D.

The State of California has a legal specialization program in eleven fields of law.  One of the fields is Immigration and Nationality Law. The goal of the specialization program  is “to protect the public by offering attorneys the opportunity to demonstrate high competence and experience through evaluations in their field by an objective certification panel.”

The “objective certification panel,” the Immigration and Nationality Law Advisory Commission (INLAC)  meets throughout the year to prepare a specialization examination, review applications for certification and re-certification as an immigration law specialist, and revise the standards for specialization in the practice of Immigration and Nationality Law. The only immigration lawyers in California who can claim to be “specialists” or “experts” in immigration law are those certified by the State of California’s Board of Legal Specialization. If you encounter an attorney who asserts he or she is a specialist or expert in immigration law, or variations around the word specialist or expert, such as “specializing in” or “special concentration” or “expertise” they are violating the rules of the profession.

INLAC strives to make the certification program relevant to California attorneys and consumers (a.k.a. clients). The program wants to have in its ranks the most dedicated and knowledgeable immigration attorneys licensed to practice in California. For years, INLAC has been debating how to deal with what appears to be a division in immigration law between those who concentrate (note, I did not use the word, “specialize”) in business immigration and those who concentrate in removal work. Certainly, there are attorneys who concentrate nearly exclusively in other areas, such as nationality law or family-based immigration, or even one specific sub-sub-area, like fiancé visas or H-1B visas, but in general the breakdown is “business” versus “removal.”

There have been advocates over the years for creating two immigration specialties – one for lawyers concentrating in business immigration and one for lawyers concentrating in removal work. INLAC has resisted this in the belief that Immigration and Nationality Law is one field and the different subject areas relate to one another. Nonetheless, INLAC strives to include within the ranks of the most competent attorneys in immigration law the many competent attorneys who cannot not meet the specific requirements of becoming a specialist. Specifically, in addition to passing a test, having a clean record, having the requisite participation in continuing education, and being recommended by peers, to become a specialist in Immigration and Nationality Law attorneys must represent clients in various categories of cases. Business immigration attorneys could not meet or did not want to invest the time away from their practices to meet the removal case requirements. Similarly, attorneys involved in removal work could not meet or did not want to invest the time to meet the business immigration requirements.

The old standard  
Since May 2008, the requirement was that attorney have participated as principal attorney in 150 cases in the following two categories, with not less than 25 cases in each category. The categories were:

1. Application for immigrant and nonimmigrant status, and

2. Removal, deportation, or exclusion hearings before immigration judges. No less than three cases in this category must be in contested proceedings.

The new standard  
In an effort to reduce the burden of handling 25 removal cases or 25 visa cases, INLAC proposed revisions to the standards, which the State Bar approved on November 19, 2010. Now the standard (Standard 2.0) is:

Participated as principal attorney in 150 cases in the following two categories, with not less than 5 cases in each category. The categories are:

1. Application for immigrant and nonimmigrant status, and

2. Hearings before immigration judges. Not less than two cases in this category must be individual hearings on the merits of an application for relief or a non-frivolous motion to terminate.

Qualification also requires showing the handling of at least three cases in at least six of thirteen more specific categories to ensure exposure to the breadth of the field.

The INLAC commissioners were interested in expanding the ranks of Certified Specialists to include many top-flight practitioners who do not engage in much business (for removal lawyers) work or removal (for business-immigration lawyers) work while requiring some meaningful experience and proficiency in areas outside of their comfort zones. Consumers, INLAC thought, would be best protected by insuring that attorneys were aware of and had some experience with as wide a range of practice areas as possible while acknowledging that no one is “expert” in everything. The new standard also is intended to give more substance to the removal requirement, reducing the possibility that an attorney could qualify through appearing in 25 insubstantial cases serving more as a hand-holder than advocate.

New re-certification standard
INLAC also made another change – this time in re-certification (Standard 4.0). Previously, an attorney had to participate as the principal attorney in150 cases in the last five years and then also have handled cases in at least six of the thirteen more specific cases. The INLAC commissioners confronted the fact that some attorneys, particularly senior attorneys in large firms, take on a more analytical or strategic role in representing clients and leave the details to subordinate attorneys. The duty to be the principal attorney, defined as “the attorney who spends the majority of the time on the case in the activities of preparation, review, filing and representing a client at an interview or hearing,” was not relevant to the actual practice of immigration law for these more senior, larger-firm attorneys. Taking this into account, INLAC proposed and the State Bar approved a change whereby for re-certification an attorney must show “direct and substantial participation as attorney in 150 cases.”

The State Bar of California hopes that with these changes, more top-flight immigration attorneys will apply to become specialists. Attorneys interested should consult the State Bar of California website for more information about specific requirements and the application process. There will be a test this autumn. Non-certified California attorneys, you should take a stab at it. Posted November 28, 2010.



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