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I hired an immigration lawyer who is not licensed in the specific U.S. state I plan to move to and work in. Is she permitted to represent me on my immigration case?

By August 27, 2020April 30th, 2021Immigration

Yes. A lawyer in good standing who is licensed in any of the 50 U.S. states is permitted to practice U.S. immigration law in any state.

Where is this stated in the law?

Federal regulations explicitly state that an individual can be represented in an immigration matter by “any attorney” who is “eligible to practice law in, and is a member in good standing of the bar of, the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.” See 8 CFR sections 1.2 and 292.1.

 I heard that lawyers aren’t allowed to practice law outside the state where they are a member of the bar. Is that true?

This is generally true, particularly regarding the practice of state law. However there are certain exceptions, including the practice of U.S. immigration law.

In order to practice law in the United States, a lawyer must typically take and pass the bar exam in one of the fifty states. Upon doing so, that lawyer may represent clients within that state and appear before the courts of that state. On the other hand, that lawyer cannot portray herself as being able to practice law in a state where she is not admitted (“out-of-state”), nor could she appear before the courts of a state in which she is not admitted.

As noted above, federal regulations create an exception to this general rule. The exception permits lawyers to practice U.S. immigration law in any U.S. state, including those in which the lawyer is not licensed to practice. The lawyer should, however, be careful to 1) limit her practice to U.S. immigration law, and 2) not hold herself out to be a state law practitioner in a state where she is not admitted. Of course, this is the lawyer’s responsibility, not yours as the client.

Are there any immigration cases that involve state law? Can my out-of-state lawyer handle those cases, too?

 Yes, certain immigration cases do require that the lawyer research or draft a brief on a subject specific to state law that relates to the immigration case. For example, a lawyer may need to research a state crime that an immigrant was convicted of in order to determine how the conviction might impact the immigrant’s adjustment of status application. Typically, such legal work would fall within the above exception and the out-of-state lawyer would be able to perform the work, since it is closely related to the immigration case that the lawyer is permitted to practice under federal regulations.

Finally, please remember that your lawyer owes you a “duty of competence,” even if she is clearly permitted to represent you on an immigration matter. This means that she should only handle issues in which she is competent. If a question about state law arises that requires her to seek the guidance of another lawyer who is more familiar with the issue, it is her responsibility to do so.

 How does this apply to notarios and others who are not lawyers?

 The prior information applies to licensed lawyers only. This information would not apply to notarios or other individuals who are not licensed to practice law.

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