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Blocked by a temporary injunction from assisting businesses to obtain labor certification for temporary work permits, an Austin company accused of practicing law without a license has appealed to Texas’ 3rd Court of Appeals in a case of first impression. At issue in Unauthorized Practice of Law Committee v. Jim Foley, et al. is whether persons who are not attorneys can fill out and submit forms for employers seeking to obtain H-2A or H-2B visas for foreigners who would like to work in the United States on a temporary basis. The H-2A permit is for agricultural employment, and the H-2B permit is for non-agricultural jobs. The UPLC, a committee of the Texas Supreme Court, filed the suit in February against Foley and others associated with J&C Investments, which does business as Foley Enterprises. Texas Government Code 81.101 authorizes the UPLC to bring such actions. Judge Suzanne Covington, of Austin’s 201st District Court, granted the UPLC’s application for a temporary injunction on May 31. The defendants filed their appeal to the Austin-based 3rd Court on July 1. Houston attorney Jeffrey Lehmann, chairman of the Houston UPL subcommittee, says another attorney brought it to his attention about two years ago that Foley Enterprises was advertising its processing services for labor certification necessary to file for H-2B work permits. Lehmann, who represents the UPLC in the case, contends that Jim Foley “acts as an attorney” and makes legal determinations about the circumstances of people applying for labor certification. The process involves submitting documents to the Texas Workforce Commission, the U.S. Department of Labor and U.S. Citizenship and Immigrations Services. “The law in this area is changing all the time; it’s a very tricky area,” says Lehmann, principal in Jeffrey Lehmann & Associates. According to an exhibit that the UPLC presented at the May 31 injunction hearing, Foley Enterprises charged a flat rate of $3,500 for processing a petition for up to 20 work permits. John Gladney, attorney for the defendants, says Jim Foley learned the procedures involved in obtaining H-2B visas, because he needed temporary laborers for his landscaping business in Austin. After Foley became successful at doing the forms for his business, he started Foley Enterprises to help others businesses with the same need, says Gladney, principal in Houston’s Law Offices of John R. Gladney. Foley believes he is authorized to do that, Gladney says. “What we have is a gray line between what constitutes the practice of law and what doesn’t constitute the practice of law,” says Wayne Paris, a Houston attorney who testified on the defendants’ behalf during the May 31 hearing before Covington. Paris, a shareholder in Gillis, Paris & Heinrich, has represented clients before the UPLC. Gladney contends that provisions in the Code of Federal Regulations permit a person who is not a lawyer to do certain activities. The federal statute pre-empts state regulation of the unauthorized practice of law, he says. The defendants argued in their second amended answer that 20 CFR 655.101(a) and (b) and 20 CFR 655.201(a)(1) specifically permit them — as agents of employers — to file for temporary alien agricultural labor certification. In their answer, the defendants further argue that “the instructions for filing non-agricultural temporary labor certification applications make clear that federal law permits this type of filing.” Based on Jim Foley’s testimony at the May 31 hearing regarding the activities his firm performs, Paris says it’s his opinion that Foley Enterprise’s assistance to clients seeking temporary work visas fits within the CPR provisions, which exempt the company from the state’s unauthorized practice of law statute. NONLAWYER ASSISTANCE Brian Graham, a board certified immigration lawyer and shareholder in Jenkens & Gilchrist in Austin, says other CFR provisions make it clear that Foley Enterprises can’t serve as an agent for employers in the labor certification process. Graham, who testified at the May 31 hearing as an expert for the UPLC, says that the 20 CFR provisions are vague and not intended to define who can be an agent. A more specific definition of the term is found in 8 CFR 214.2(h), he says. Graham says one of the big issues in Foley is whether a nonlawyer can fill out forms that would be of any benefit to the client. “You can’t just fill out forms in this area,” Graham says. “Filling out forms requires legal knowledge.” Graham says about 20 steps are involved in seeking H-2B visas and that the H-2A visa process is more complicated, requiring 27 steps. The process requires an understanding of how the regulations work together and apply to specific situations, he says. Any mistake made in the process that requires a client to start over on an application for an H-2B visa puts that client at a competitive disadvantage, because the Department of Labor can approve only 66,000 applications a year, Graham says. Gladney says Foley has had only one or two applications rejected over the past decade. In findings of fact and conclusions of law signed on June 24, Covington concluded that Foley is governed by the Texas Supreme Court’s 1985 decision in Unauthorized Practice of Law Committee, State Bar of Texas v. Cortez. In Cortez, the UPLC sought an injunction to stop a private immigration service agency from advising clients about filing for green cards. According to the Supreme Court’s opinion, written by then-Justice Franklin Spears, an employee of the agency interviewed clients and filled out forms that the clients filed with the Immigration and Naturalization Service. The court held that the act of recording a client’s responses on a form petitioning for preferential status did not require legal skill or knowledge but that the act of determining whether the form should be filed at all did require special legal skills. Foley raises the question of whether Cortez applies when a nonlawyer shop assists clients with forms in the application process for work visas.

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