The Risk Manager, Winter 2002

The year 2001 was another bountiful year for lawyer entanglements with malpractice. In this issue we review cases and new developments reported in 2001 worth considering in your firm’s risk management program.

Immigration law is the “new new” thing in 2001
As a result of NAFTA and liberal immigration policies large numbers of immigrants have entered the US. Correspondingly, lawyers now see more clients with immigration law issues. This was not a high-risk area of practice because the authorities were liberal in enforcing immigration law and issuing visas. That all changed last September 11. Now immigration law is strictly enforced and poor legal advice can have severe repercussions.

Lawyers should advise all clients not US citizens to carry required documentation with them at all times; e.g. green card, student visa, or INS approvals. This is the law, but was not being enforced. It is now. Other considerations are:

• Lawyers defending immigrants in criminal cases are not considering the immigration consequences of pleading guilty to serious crimes. Conviction causes the immigrant to be subject to removal and ineligible for many, if not all, forms of relief from removal. It is essential that defense counsel know the unintended consequences of a guilty plea for immigrants when plea-bargaining.
• Lawyers can expect to be asked to help alien clients prepare for border crossings. This requires a comprehensive review of a client’s history to prepare the client for a searching background check when attempting to cross the US border. Refer to the US government’s list of terrorist organizations in making this review.
• Immigrants who have overstayed their visa and are “out of status” may seek advice on how to apply for an extension. The old practice of returning to the appropriate consulate overseas to obtain a visa and return to the US is now problematic. There could be considerable difficulty in obtaining a new visa and re-entry in the US is no sure thing. If immigrant clients do leave the US on a trip, advise them to take their complete file of documentation authorizing US residency and an updated letter of employment. It may be appropriate to seek means other than leaving the US to regain legal status.
• Immigrants seeking permanent residency or citizenship may ask for legal advice in preparing application forms. Stress the absolute necessity for meticulous completion of all forms to avoid automatic rejection for an incomplete submission.
• Alien clients should be advised in the strongest terms not to miss an immigration hearing. If they do, they can expect to be pursued by the authorities and face removal.

See “Threat of Terrorism Yields Surge in Immigration” by Diana Digges, Lawyers Weekly USA, 2001 LWUSA 829, 10/15/01.