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

Anne O'Donoghue's Australian Immigration Law We b Site can b e found at www.immigrationsolutions.com.au)

While the US and Australia differ in the way they regulate migration assistance, the lesson to b e lea rned from b oth systems is essentially the same: lawyers are b etter regulated and are likely to provide a higher level of service than other kinds of migration consultants.

The b iggest difference b etween the US and Australian regulatory environment is that the US has n o n ational regulating authority compara b le 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 b ond. However, they d o n ot have a license that can b e revoked on grounds of incompetence. In Australia , b y contrast, all migration agents must b e registered with MARA and may have their registration revoked if they are deemed to b e 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 m ak es a much stronger delineation b etween a Lawyer's assistance and other types of immigration assistance than MARA does.

MARA m ak es no regulatory delineation b etween 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 b e 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 b y t ak ing a short course approved b y 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 exam ina tions. MARA may also introduce an alternative means of entry where b y individuals could complete a period of supervised practice followed b y an entrance exam ina tion.

By contrast, California state law more or less restricts Immigration consultants to filling out fo rm s and translating documents, which is a considera b ly more limited role than that of an Australian migration agent.

California law prohi b its 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 b oth countries, standards are more stringent for Lawyers, who can b e prevented b y legal regulatory oversight b odies 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 prohi b its the use of the Spa nish term “notario,” which can mean attorney or judge in some parts of Latin America .

The "notario" pro b lem still persists, however. Greg Siskin d 's immigration law b ulletin this month reported that advocacy groups in Illinois have filed a suit against the US Immigration and Naturalization Service federal court on b ehalf of 5,000 illegal immigrants who were defrauded b y phony immigration consultants, many calling themselves "notarios."

Likewise, MARA is trying to deal with ongoing pro b lems in Australia . New rules that come into effect b eginning March 1, 2003 will more c lea rly spell out conflict of interest issues relating to practice. These moves are in response to a num b er of issues where migration agents had c lea rly stepped over the line in keeping their various b usiness interests properly separated.

In b oth countries the authorities have had trou b le prosecuting immigration misconduct b ecause immigrants, especially undocumented ones, are a gene rally vulnera b le population and are less likely to come forward with info rm ation.