Update 06/07/2017 – The Form G-1256 is online now at the USCIS Website. I’ve posted a copy of the form here. You’ll notice this is the same form that was released with the August, 2015 memo announcing the form and the proposed rule. The form instructions are also the same as were released in 2015.

Update 05/05/2017: The form is being handed out in paper form only at local USCIS offices. Here is a scan of the form that we received this week at our local office. I have also submitted a series of FOIA requests for the electronic version and for more information about why it isn’t online. I’ll share that as soon as I have it.

Original Post: Starting May 1, 2017 the USCIS will change the way it handles interpreters at its interviews. While several of these changes are plainly unfair and will create administrative headaches for applicants and adjudicating officers, they also provide new protections to applicants when the officer refuses to accept their interpreter at the interview.

Yesterday afternoon the USCIS announced it would adopt a new rule starting Monday, May 1, 2017 severely limiting the ability to use interpreters in USCIS interviews. The idea was floated in January, but the USCIS hadn’t announced that it would actually take effect or when. Then yesterday this e-mail was sent out:

So, we knew this was coming, but we didn’t know in what form, and we definitely didn’t know when. And the biggest change now seems to require a form, G-1256, that doesn’t seem to exist (yet).

The New Policy

Starting Monday, May 1, 2017 the following changes will be put in place for interpreters at USCIS interviews:

1. Certain individuals may no longer serve as interpreters, including attorneys, witnesses, and children 13 years old and younger.
2. The Officer must determine if the interpreter is sufficiently fluent in both languages.
3. The Officer must determine if the interpreter is competent and is interpreting accurately.
4. The Officer must determine that the interpreter is impartial and unbiased.
5. The Officer must make the applicant and the interpreter sign form G-1256 (“Declaration of Interpreted USCIS Interview”)

As my friend Susan Pai pointed out this morning, the form doesn’t actually appear to exist yet, at least on the USCIS Forms site. So it’s not clear how they’re going to implement this requirement starting Monday May 1, 2017.

The Form G-1256

So, apparently the USCIS plans to implement this policy May 1, 2017 but the form they require applicants to submit and have read to them and understand still isn’t available. Perhaps they’re going to publish it today. However, we do have an early draft of the form, which was published when this proposed rule was announced in November, 2015.

Here’s what the draft form requires (I’m including the relevant sections and leaving out several of the inessential portions, because like most USCIS forms it’s too long).

First, the form requires that if the officer rejects the interpreter the applicant brings, the officer must provide an opportunity to reschedule the interview or to proceed with an alternative interpreter. It does not say the USCIS officer can act as the interpreter.

Second, the Form requires the applicant to state under oath that the whole thing has been read to them in a language they understand and that they fully understand the form.

I anticipate officers in a hurry to get through their assigned interviews for the day are going to want to rush through this form, but for now (until the actual form is available online) this is going to slow down interviews. I won’t be advising my clients to sign this form until the entire thing has been read to them and they are sure they fully understand it. Get ready for 20-minute interviews to now take an hour.

Of course, once the form is available online, this will become a mandatory step in our process of preparing for these interviews. I will need to meet with the proposed interpreter and have them read the form to my client and make sure my client fully understands it before we go to the interview.

For now the draft form that is available quite plainly indicates the applicant needs to have this form completed and ready before the interview.

And for now they’re claiming the form is available online.

As of the time of this writing, it isn’t.

Third, if an officer wants to disqualify your interpreter, they now have to give a reason, in writing. This is new, and this is a good change. Prior to this change, officers would routinely stop you at the doorway and say “your interpreter isn’t necessary, I speak enough Spanish to do the interview in Spanish” or something similar. Now the officer is required to complete a Form G-1256 and must write out the reasons they disqualified your interpreter. And if the officer chooses to disqualify the interpreter the person brought, the officer can’t just move on and finish the interview in English and hope the person understands. They must, in writing, notify the applicant she has the right to reschedule the interview until a qualified interpreter can be found.

Problems With the New Policy

As with most recent changes the federal government rolls out overnight without thinking about the implications, there are serious problems with this new policy.

First, most individuals who need interpretation help at a USCIS interview will bring their family member, a friend, or someone they’ve hired to interpret for them. The new rule says “family members will generally be disfavored as interpreters.” And to make this determination, the officer is invited to inquire about whether the interpreter is a friend, a family member, or a person with with financial connections to the interviewee. There aren’t volunteer interpreters just lining up to interpret for folks at the USCIS interviews. So there is massive potential for abuse of this policy.

Second, the policy will encourage people to go through with their interview without a qualified interpreter or in a language they only partially understand. The truth is that most people want to complete their interview and aren’t looking for a delay. My hunch is that once their interpreter is disqualified, most people will just sign the form, agree to do the interview in English, and try their best. But this is precisely when people get into trouble. Answering a question you don’t fully understand can have disastrous consequences when the government later alleges that you lied in the interview.

Similarly, the new rule suggests the officer should try to find another language you can understand but not as well. For example, Mayan folks traditionally don’t speak Spanish – they speak a series of Mayan dialects which sometimes include Spanish words. The policy suggests that if the applicant speaks Mam or Ixil, which are two separate and distinct Mayan dialects, the officer should suggest proceeding in Spanish because the person may also understand some Spanish. One can imagine the disastrous consequences this will have for a person who marginally understands Spanish but decides to not make a fuss and just go along with what the officer suggests.

Third, how on earth is a  USCIS officer going to gauge the interpreter’s fluency in a language the officer doesn’t speak? That’s their job now under this new rule. For most officers this is going to create an enormous, impossible burden.

Fourth, not allowing the applicant’s attorney to be the interpreter but allowing their 14-year-old child to be an interpreter is just silly. The rule says attorneys will always be advocates for their clients and thus can’t be expected to translate accurately. If anything, attorneys have to take an oath to tell the truth and risk losing their bar license if they don’t. They have every reason in the world to translate accurately. The effect of this rule is that applicants will have to spend more money to hire a qualified interpreter or that they’ll proceed without interpretation and risk being accused of lying later when they respond to a question they don’t understand.

Final Thoughts

This announcement isn’t all bad. It’s nice that now we’ll get a reason, in writing, for interpreters being disqualified. The requirement of written notice raises procedural due process implications, and individuals who are aware of their rights are more likely to demand they be guarded. Also, it seems pretty clear under this new policy that the officer can’t also be the interpreter. However, not allowing applicants’ attorneys to interpret and not providing access to the form in advance is going to create headaches for both the applicants and their attorneys.