SUPPORTING STATEMENT_R&A 2016 Final Rule E31 E31A E44

SUPPORTING STATEMENT
Request for OMB Approval of Revisions to Currently
Approved Information Collections in a Final Rule:
OMB No. 1125-0012 Request for Recognition of a Non-profit
Religious, Charitable, Social Service, or Similar Organization (Form EOIR-31);
OMB No. 1125-0013 Request by Organization for
Accreditation of Non-Attorney Representative (Form EOIR-31A); and
OMB No. 1125-0007 Immigration Practitioner Complaint Form (Form EOIR-44).
______________________________________________________________________________
Part A. Justification
1. Necessity of Information –
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

approximately 1,079 recognized organizations and about 2,213 accredited representatives
nationwide. 1

The majority of accredited representatives request and receive only partial

accreditation from EOIR to appear solely before DHS.
1

Approximately 20 percent of the

The numbers of recognized organizations and accredited representatives are current as of December 5, 2016. Visit
the rosters of recognized organizations and accredited representatives for updated data at:
https://www.justice.gov/sites/default/files/pages/attachments/2016/12/05/raroster-orgs-reps.pdf (last visited
December 16, 2016); https://www.justice.gov/sites/default/files/pages/attachments/2016/12/05/raroster-reps.pdf
(last visited December 16, 2016).

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representatives receive full accreditation from EOIR to appear before DHS, the immigration
courts, and the Board.
With the exception of a technical amendment in 1997, the R&A regulations have
remained unchanged since 1984. 2 EOIR published a proposed rule seeking to amend the R&A
regulations in order 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. See 80 FR 59514 (Oct. 1, 2015). The final 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. In doing so, the
final rule requires significant substantive changes to the information collections contained in the
current rules.
Specifically, the rule proposes to transfer administration of the R&A program within
EOIR from the Board to the Office of Legal Access Programs (OLAP); 3 amend the
qualifications for recognition of organizations and accreditation of their representatives; institute
administrative procedures to enhance the management of the R&A roster; institute additional
record keeping requirements; and update the disciplinary process to make recognized
organizations, in addition to accredited representatives and attorneys, subject to sanctions for
conduct that contravenes the public interest. Following the notice and comment period, EOIR
now provides the attached final rule for publication in the Federal Register, effective January 17,
2017.
2

Compare 8 CFR 292.2(b) (1985) with 8 CFR 1292.2 (2015).
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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2

2. Needs and Uses - Based on the proposed and final rules, three currently approved information
collection instruments need to be revised: (1) the form for non-profit religious, charitable, or
social service organizations to apply for recognition (Form EOIR-31) (OMB#1125-0012); (2) the
form for recognized organizations to apply for accreditation of non-attorney representatives
(Form EOIR-31A) (OMB#1125-0013); and (3) the form for filing a complaint against an
immigration practitioner (Form EOIR-44) (OMB#1125-0007).

Request for Recognition, Renewal of Recognition, or Extension of Recognition for a NonProfit Religious, Charitable, or Social Service Organizations (EOIR-31; OMB#1125-0012)
An organization applies for recognition by submitting a Form EOIR-31 to EOIR, and
serving a copy of the Form EOIR-31 on the local District Director of the U.S. Citizenship and
Immigration Services (USCIS) of DHS and the local Chief Counsel of the U.S. Immigration and
Customs Enforcement (ICE) of DHS. 8 C.F.R. 1292.2(b). The Form EOIR-31 collects basic
information about the organization, including a description of its funding sources, the
immigration law resources and knowledge available to the organization, the resumes and
immigration training of its employees, and its organizational structure. This information is
necessary to prevent fraud. It also ensures that the organization has available the requisite
knowledge and skill to represent individuals in immigration proceedings and does not charge
high fees or dues for individuals seeking assistance.

The revised Form EOIR-31 will be used to apply for initial recognition and renewal of
recognition. The revised form will provide the organization with the option of using a single
form to extend recognition to non-headquarter/subordinate locations and the ability to indicate

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the number of accredited representative applications that are being submitted with the
recognition application and the names of the applicants for accreditations. Form EOIR-31 will
be generally used every three years in connection with a request to renew recognition, and may
be used on occasion in the intervening time if an organization seeks to extend recognition to a
new office or location. The collected information will be used to: (1) evaluate an organization’s
eligibility for initial recognition or to renew recognition by determining 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 lowincome and indigent persons.

Form EOIR-31 will be updated to reflect the eligibility requirements for an organization
to be recognized, as stated in the proposed and final rules.

The revised form will require an

organization to identify the type of federal tax-exempt status, and to provide documentation of
such status (e.g. the first page of the last IRS information return, if any). In addition to providing
the organization’s fee schedule required under the currently approved collection, the revised
form asks organizations to answer in the affirmative whether fees are charged for immigration
legal services and membership dues, whether legal fees are waived for some clients or if there is
a policy for reducing such fees, and if so, to provide documentation of such fees, charges, and
policies. The final rule requires the revision of the currently approved information collection in
that recognized organizations maintain their fee schedules, if any, and the annual reports they
must provide with an application for renewal of recognition for a period of six years. The annual
report should include information already gathered by the organization such as the number of

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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 revised form further requires organizations to indicate whether its immigration legal
services budget shows that a substantial amount of the budget derives or will derive from sources
other than client fees. The organization is instructed to provide copies of the budget for the
current year and a request for a waiver of the substantial amount requirement, if applicable. As
required under the currently approved collection, the organization must continue to provide the
organizational chart, staff resumes, and agreements to consult with other recognized
organizations or attorneys. However, organizations must now also indicate whether the attorneys
on staff are licensed to practice law in the United States and in good standing. Rather than
provide a separate statement describing the immigration legal services offered and a list of
library and/or internet resources available to the organization, the organizations are now asked to
specify these details on the form itself.

Request by Organization for Accreditation or Renewal of Accreditation of NonAttorney (Form EOIR-31A)
EOIR maintains the voluntary Form EOIR-31A to elicit, in a uniform manner, all of the
required information for EOIR to determine whether a proposed representative meets the
eligibility requirements for accreditation.

Form EOIR-31A provides detailed instructions

regarding the application process for accreditation, including the documentation necessary to
establish eligibility, the appropriate organization official to verify the contents of the application,

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and the location where copies of the application and documentation should be submitted. The
form also provides a link to EOIR’s website for further information about how to apply for
accreditation.
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 and final 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. 4 The revised form will not require the
applicant to provide any new or additional information not already provided under the current
collection. However, EOIR seeks to make this form mandatory for all requests for accreditation.
The Form EOIR-31A will continue to be used to apply for initial accreditation and to seek
renewal of accreditation.

Form EOIR-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 or seeks to change
accreditation from partial to full accreditation.

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 applicant to provide any new or additional information not

4

For example, Part 4 (Qualifications for Accreditation) of Form EOIR-31A has been revised to provide a list of
eligibility requirements, including that the applicant is an employee or volunteer of the organization; the applicant is
not a licensed attorney; the applicant has not resigned from the practice of law while a disciplinary investigation or
proceeding is pending; the applicant is not subject to any order restricting the individual in the practice of law or
otherwise providing representation before a court or administrative agency; and the applicant has not been convicted
of a serious crime anywhere in the world.

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already provided under the currently approved collection. The information on this form will
continue to be used to determine whether EOIR’s Office of General 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.

3. Use of Technology - The use of these forms will provide the most efficient means for
collecting and processing the required data. The forms will be available on EOIR’s website for
printing. Information can be typed into the online forms, and then printed for submission to
EOIR. In addition, the forms may be printed in their entirety and completed by typing or
printing legibly. Currently, EOIR only has limited automated capabilities in place to accept the
electronic submission of certain forms. However, EOIR is exploring a number of electronic
document initiatives, including electronic submission of additional EOIR forms.

4. Efforts to Identify Duplication - There are no other EOIR forms for recognition and
accreditation requests or for practitioner complaints. A review of EOIR’s forms revealed no
duplication of effort, and there is no other similar information currently available that can be
used for this purpose.

5. Impact on Small Businesses – This collection has an impact on small businesses or other small
entities to the extent that they are non-profit organizations applying for recognition or
accreditation before EOIR and/or DHS. However, this collection does not impose undue burden
on these non-profit organizations; instead, the requested information is necessary for EOIR’s
determination of the recognition and accreditation requests. The information collections seek
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photocopies of pre-existing materials, where applicable, and summaries of information

Under the current collection the estimated average time to review the Form EOIR-31,
gather necessary materials, complete the form, and assemble the attachments is 2 hours. With
the additional requirements in the final rule described above, namely the assembly of the annual
reports, the Department estimates an average total response time of 2 hours to complete an initial
request for recognition, and 7 hours for renewal of recognition (one hour for review and
completion of this form, and 6 hours to provide the annual summaries of legal services
provided, review the form, gather necessary materials, complete the form, and assemble the
attachments).

This estimate includes the additional burdens for document retention and

preparation of the annual reports, in addition to the time saved by streamlining the form to allow
for a single application for multiple locations and the elimination of a number of separate
statements and lists required under the current collection.

There is no new or additional information collected under the revised Forms EOIR-31A
or EOIR-44. As such, the Department estimates that the average response time of 2 hours to
complete a Form EOIR-31A for each application for initial accreditation or to renew
accreditation will remain the same as the currently approved collection. The Department also
estimates that the average response time of 2 hours to complete Form EOIR-44 will remain the
same as the currently approved collection.

6. Consequences of Less Frequent Collection - Failure to collect this information in the Forms
EOIR-31 and EOIR-31A would deprive the organization of establishing eligibility for
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recognition and accreditation under the final rule. Failure to collect the information in the Form
EOIR-44 would also inhibit an individual’s ability to file a complaint regarding an immigration
practitioner’s criminal, unethical, or unprofessional conduct, or frivolous behavior. It would also
substantially hinder EOIR’s ability to effectively administer the policy objectives of EOIR’s
federal attorney discipline program.

7. Special Circumstances Influencing Collection - Under the final rule, organizations are required
to retain records of their fee schedules, if any, and the annual reports they must provide with an
initial application for recognition and application for renewal of recognition for a period of six
years. The Department does not believe that the recordkeeping requirement will impose 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 below, the Department estimates that it would cost an organization approximately
$55.69 per hour to have a lawyer compile the annual reports, and $10.00 per hour for a nonlawyer to do so. 5 Maintaining the fee schedules and annual reports after their creation 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 and tax documents, that organizations are obligated to retain for state or federal purposes.
None of the other eight special circumstances identified in OMB instruction number 7 apply to
this collection.

5

Note that the burden (and cost) of compiling three annual reports for renewal of recognition was included in the
total average burden (and cost) for renewing recognition.

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8. Federal Register Publication and Consultation – On October 1, 2015, EOIR submitted a
Notice of Proposed Rulemaking (NPRM) covering this collection to the Federal Register for
publication. See 80 FR 59514 (Oct. 1, 2015). A copy of that submission is attached. EOIR has
received substantive comments during the development of this rule, which are discussed at
length in the NPRM, as well as comments in response to the NPRM during the notice and
comment period, which are discussed in the Final Rule covering this collection. A copy of the
attached Final Rule has been submitted to the Federal Register for publication. If any additional
comments are received, they will be considered and incorporated where appropriate.

9. Payment or Gift to Claimants - EOIR does not provide any payment or gifts to parties in
immigration proceedings or their attorneys or representatives, including recognized organizations
and their accredited representatives.

10. Assurance of Confidentiality – The OLAP Director will maintain the original applications for
recognition and accreditation. Those EOIR staff members processing the applications may
access the Forms EOIR-31 and EOIR-31A. EOIR’s Office of the General Counsel maintains the
original complaint Form EOIR-44. EOIR staff members who process the complaint may access
the Form EOIR-44. EOIR protects the confidentiality of the contents of these forms, to the
extent permitted by law, including the Privacy Act and the Freedom of Information Act.

11. Justification for Sensitive Questions - There are no questions of a sensitive nature.

12. Estimate of Hour Burden
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EOIR-31
a. Number of Respondents applying for initial recognition 183
b. Number of Responses per Respondent

1 each

c. Total Annual Responses

183

d. Hours per Response

2 hours

e. Total Annual Hourly Reporting Burden

366 hours

183 new organizations x 1 response per respondent x 2 hours per response = 366 burden
hours.
a. Number of Respondents applying for renewal

360

b. Number of Responses per Respondent

1 each

c. Total Annual Responses

360

d. Hours per Response

7 hours

e. Total Annual Hourly Reporting Burden

2,520 hours

360 current organizations x 1 response per respondent x 7 hours per response = 2,520
burden hours.

EOIR-31A
a. Number of Respondents

913

b. Number of Responses per Respondent

1 each

c. Total Annual Responses

913

d. Hours per Response

2 hours

e. Total Annual Hourly Reporting Burden

1,826 hours

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913 respondents x 1 response per respondent x 2 hours per response = 1,826 burden
hours.

EOIR-44
a. Number of Respondents

200

b. Number of Responses per Respondent

1 each

c. Total Annual Responses

200

d. Hours per Response

2 hours

e. Total Annual Hourly Reporting Burden

400 hours

200 respondents x 1 response per respondent x 2 hours per response = 400 burden hours.

13. Estimate of Cost Burden - 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 $55.69. For those respondents who proceed without a
practitioner, there is an estimated cost of $10 per hour for completing the form (the individual’s
time and supplies) in lieu of the practitioner cost. There are also no fees associated with filing
these forms.

14. Estimated Cost to the Federal Government – It is estimated that the annual government cost
for printing, distributing, stocking, processing and maintaining the Form EOIR-31 will be

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$15,848; for the Form EOIR-31A the cost will be $35,530; and for the Form EOIR-44 the costs
will be $2,433.

15. Plans for Publication - The information from this collection will be used internally to process
the forms.

16. Exceptions to the Certification Statement - EOIR does not request an exception to the
certification of this information collection.

Part B. Collection of Information Employing Statistical Methods
This collection does not employ statistical methods.

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