Can or Should Attorneys Really Hit the “Submit” Button on the DS-160 and DS-260 Forms?

I previously posted on my blog that officials from the Cd. Juarez post had announced that attorneys can hit the “submit” button on both the DS-160 and the newer DS-260.  Since then, I have had some discussions with other attorneys on this topic and I have come to the conclusion that this raises some ethical issues that attorneys need to be aware of.  First, a little background.  

The Department of State Liaison committee at AILA had brought up this issue with the Visa Office.  The concern has been all along that there are a lot of unscrupulous characters that hang around the consulate and offer to review client’s paperwork before their interviews for a fee or even help them fill out forms.  They are a huge problem that most consular officers recognize and are helping to fight against.  However the vultures keep doing what they are doing.  In Cd. Juarez they even wear official looking badges and colored polo shirts that state that they help applicants with the DS-260.  With the new electronic forms coming into being, this posed problems for us attorneys when dealing with unsophisticated clients who not only do not know how to use a computer, but don’t even have access to one.  Furthermore the form must be filled out in English, so language provided another barrier.  Inevitably, these clients will turn to these vultures for help since we attorneys are too far away to meet with our clients and it would be cost prohibitive to go meet each client abroad.  

The Visa Office was adamant that only the applicant can submit the electronic form; attorneys are not allowed to so.  However, there have been numerous reports from different consular posts where consular officers have advised attorneys that they themselves can submit the form for the client.  Their rationale is that the applicant is asked to swear to the contents of the application at the beginning of the interview anyway, so perhaps they thought that the regulatory requirements were being met anyway.  The Visa Office is aware of consular officers advising applicants and attorneys this way, but they remain adamant in that they should not be doing so.  

The VO has been adamant on requiring the applicant to submit the form in connection with allegations of fraud since many applicants are claiming that a misrepresentation on the form should not be held against them since it was an attorney or preparer who filled out the form.   However, I don’t think the VO grasps that the vultures around the consulates pose a bigger problem than the fraud concerns which can be addressed in a variety of ways.    

Here is my take on the regulatory provisions and whether they are met or not.  Following this, I will address ethical concerns.  

When the new DS forms came into being there were regulations promulgated by the Department of State.  The relevant regulations are as follows:

The non-immigrant visa regulation provides:

41.103(a) Filing an application--

41.103(a)(1) Filing of application required. Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated "Sign Application" in the certification section of the application.

… 

41.103(b)(3) Signature. The Form DS-160 shall be signed electronically by clicking the box designated "Sign Application" in the certification section of the application. This electronic signature attests to the applicant's familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. 

(Emphasis added).

The immigrant visa regulation provides similarly:

42.63(a) Application Forms.

42.63(a)(1) Application on Form DS-230 or Form DS-260 Required.--Every alien applying for an immigrant visa must make application, as directed by the consular officer, on Form DS-230, Application for Immigrant Visa and Alien Registration, or on FormDS-260, Electronic Application for Immigrant Visa and Alien Registration. This requirement may not be waived. Form DS-230 consists of parts I and II which, together, are meant in any reference to this Form.

(Emphasis added).  

Looking at the regulatory language on the requirements for the new electronic forms, there is no explicit language that says applicant must hit the button.  It says applicant must make an electronic application and applicant must swear to the contents of the application.  Both of these requirements are satisfied because an electronic application is made and the applicant swears to the application at the interview and as this cable requires.  Therefore, it seems that there is some protection from the regulation on what the consular officers suggest we do.  However, beware of 41.103(b)(3) which states that by clicking the "sign application" button the form is signed and certified.  Therefore not everyone agrees with this interpretation above.  Some very well respected attorneys take the position that the attorney's act of clicking the button is essentially the attorney making the attestation on behalf of the client.  In essence, the latter position is that by clicking the button both purposes of the regulation (making the application and attesting to its truthfulness) are accomplished in the single act of clicking the submit button. 

This leads to some ethical concerns so I wouldn’t take the above analysis to the proverbial bank.  Think back to the days of the paper DS-156.  Would it be ok for an attorney to sign the form for the client?  The answer would be no.  Since the DS-160 is essentially an electronic version of the DS-156 the same argument goes for that.  In the same fashion, if both the making of the application and its attestation are encompassed in the one act of clicking the "sign application" button as explained above, the attorney would be essentially making the attestation for the client which the regulation does not provide for. 

A respected colleague suggested that the solution would be for the VO to amend these electronic forms and put an option for attorneys and preparers to submit the form on behalf of the applicant while attesting that the contents of the application were explained to the applicant and the applicant can be required to swear to the contents at the interview and perhaps electronically “sign” the application before the consular officer.  This would be akin to the old way of submitting the old DS-156 electronically and printing it out with a bar code which the applicant would sign ink on paper and take with him or her to the interview.  This would alleviate any ethical concerns while protecting the integrity of the system.  

The Department of State should stop talking out of both sides of its mouth and take action so this issue can be settled.