Author Tim McDonald, Editor Anne O'Donoghue (aod@immigrationsolutions.com.au)

Anne O'Donoghue's Australian Immigration Law Web Site can be found at www.immigrationsolutions.com.au)

While the US and Australia differ in the way they regulate migration assistance, the lesson to be learned from both systems is essentially the same: lawyers are better regulated and are likely to provide a higher level of service than other kinds of migration consultants.

The biggest difference between the US and Australian regulatory environment is that the US has no national regulating authority comparable to Australia's Migration Agents Regulation Authority (MARA) and regulations vary from state to state.

In California, for example, consultants must pay a $50,000 bond. However, they do not have a license that can be revoked on grounds of incompetence. In Australia, by contrast, all migration agents must be registered with MARA and may have their registration revoked if they are deemed to be incompetent or unscrupulous after a MARA investigation.

But while the US places less regulatory oversight on "immigration consultants" (the US equivalent of an Australian migration agent), the role of such a consultant is significantly more limited.

California makes a much stronger delineation between a Lawyer's assistance and other types of immigration assistance than MARA does.

MARA makes no regulatory delineation between Migration Agents, Lawyers registered as migration agents and Lawyers with specialised accreditation in immigration law.

MARA's code of conduct stipulates that a "migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice."

However, non-lawyers may register as migration agents by taking a short course approved by MARA. Although not registered as lawyers, there is nothing to stop a registered migration agent without a law degree from giving advice on legalistic immigration matters, so long as he or she has completed an approved course required for registration.

Following a recent review of the migration industry, MARA is expected to improve competence through coursework and more comprehensive entry examinations. MARA may also introduce an alternative means of entry whereby individuals could complete a period of supervised practice followed by an entrance examination.

By contrast, California state law more or less restricts Immigration consultants to filling out forms and translating documents, which is a considerably more limited role than that of an Australian migration agent.

California law prohibits immigration consultants who are not attorneys from giving legal advice. Moreover, they must prominently display a sign in their offices stating they are not attorneys.

In both countries, standards are more stringent for Lawyers, who can be prevented by legal regulatory oversight bodies from practicing on grounds of incompetence and negligence.

California law also requires immigration consultants to provide a contract in the native language of the client, and prohibits the use of the Spanish term “notario,” which can mean attorney or judge in some parts of Latin America.

The "notario" problem still persists, however. Greg Siskind's immigration law bulletin this month reported that advocacy groups in Illinois have filed a suit against the US Immigration and Naturalization Service federal court on behalf of 5,000 illegal immigrants who were defrauded by phony immigration consultants, many calling themselves "notarios."

Likewise, MARA is trying to deal with ongoing problems in Australia. New rules that come into effect beginning March 1, 2003 will more clearly spell out conflict of interest issues relating to practice. These moves are in response to a number of issues where migration agents had clearly stepped over the line in keeping their various business interests properly separated.

In both countries the authorities have had trouble prosecuting immigration misconduct because immigrants, especially undocumented ones, are a generally vulnerable population and are less likely to come forward with information.