Introduction

On January 17, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum (PM)-602-0125.1, titled “The Role and Use of Interpreters in Domestic Field Office Interviews” [PDF version]. The PM, which modifies Chapter 15, Part 7, of the USCIS’s Adjudicator’s Field Manual (AFM), sets forth “guidance regarding the role and use of interpreters in certain interviews conducted in USCIS domestic field offices in the absence of agency-provided interpretation.” On January 18, 2017, the USCIS released a summary of the PM titled “The Role and Use of Interpreters in Domestic Field Office Interviews” [link].

The new interpreter policies took effect on May 1, 2017. In this article, we will provide a summary of the new USCIS policy guidance regarding non-USCIS interviewers in certain interviews conducted in USCIS domestic field offices.

Scope of the New Policy

The PM applies to all USCIS-conducted interviews that require interpretation with the following exceptions:

Asylum interviews;
Credible fear screening interviews;
Reasonable fear screening interviews;
NACARA interviews;
Refugee interviews; and
Interviews conducted in a USCIS overseas office (these interview policies are governed by the Refugee, Asylum, and International Operations Directorate (RAIO)).

The interview policies that are not covered by the PM are set by RAIO. However, the USCIS noted that the policies in the PM are synchronized with existing RAIO guidance “to the extent practicable.”

Core Qualifications to Serve as an Interpreter

The USCIS is responsible for determining whether a proposed interpreter meets the core interpreter qualifications. In general, the USCIS requires that an interpreter for the purposes of an immigration interview must be:

Sufficiently fluent in both English and the interviewee’s language;
Able to interpret competently between English and the interviewee’s language; and
Be able to interpret impartially and without bias.

If a USCIS officer determines that a proposed interpreter or interpreter cannot meet the core interpreter standards, the USCIS officer must disqualify the interpreter. The USCIS may disqualify an interpreter before or during the interview.

Individuals under the age of 14 and the attorney or accredited representative of the interviewee are categorically barred from serving as interpreters.

Individuals who are 14 through 17 years of age and witnesses are generally barred from serving as interpreters. However, such individuals may serve as interpreters if the interviewee can show good cause. We will examine the good cause provisions in this article.

Fluency Requirement

The most basic requirement to serve as an interpreter is that the individual is fluent in both English and the interviewee’s native language. The PM defines fluency as the ability “to speak or write smoothly, easily, or readily without great difficulty or effort.” Fluency is a necessary condition for serving as an interpreter in a USCIS interview; however, it is not by itself sufficient.

Competency Requirement

In addition to being fluent in both English and the interviewee’s language, the interpreter must be competent. The USCIS notes that determining whether an interpreter is competent is not always easy. For example, let us imagine an individual who seeks to interpret between English and Russian. It is entirely possible that the individual can communicate fluently in both English and Russian but not be able to competently interpret into and out of English. This is why fluency is a necessary but not sufficient condition for serving as an interpreter.

The USCIS notes that organizations may certify an individual as competent to interpret in a designated language. However, the USCIS considers this neither necessary nor sufficient for demonstrating competency to interpret in a USCIS interview. A USCIS officer has the discretion to find that a certified interpreter is not competent. Conversely, the USCIS officer may find that an individual who has no certification as an interpreter is nevertheless competent.

In general, the USCIS does not permit minors to serve as interpreters regardless of language proficiency because they are generally “not considered to be capable of fully understanding or weighing the consequences of contracts or oaths, particularly those regarding confidentiality, which may undermine the validity of the Declaration that the interviewee and interpreter must sign before the interview.” Furthermore, the USCIS has concerns that minors may often be incapable of handling the sensitive content in certain interviews. However, as we noted earlier and will discuss in detail later, a minor aged 14-17 may be permitted to serve as an interpreter if good cause is established.

Impartiality Requirement

Finally, an interpreter “must be impartial and able to interpret without bias.” The USCIS must assess whether there exists “potential conflicts of interest between an interviewee and his or her proposed interpreter, as well as any other circumstances that might interfere with the interpreter’s ability to provide an accurate, literal, and full interpretation.” For this reason, interviewees and proposed interpreters are required to disclose any information that may call the interpreter’s impartiality into question. Some examples of circumstances that may call the interpreter’s impartiality into question are if he or she is a friend or family member of the interviewee, or if the interpreter has financial connections to the interviewee. In general, individuals with a strong personal interest in the interviewee procuring the immigration benefit sought are presumed to be suspect. For this reason, “family members will generally be disfavored as interpreters if there is another qualified interpreter available to the customer.” Notwithstanding negative factors regarding an interpreter’s impartiality, the USCIS may still determine, after full disclosure of such factors, that the interpreter can provide competent, impartial, and unbiased interpretation and accept the interpreter.

The PM instructs USCIS officers to be “especially vigilant” when the proposed interpreter is a derivative of the interviewee and would thus stand to gain immigration benefits if the interviewee’s application or petition is granted. While such an individual is not precluded from serving as an interpreter, the USCIS will carefully scrutinize the proposed interpreter before the interview and during the interview. Nevertheless, the PM is clear that merely being a derivative of the interviewee does not disqualify an individual from serving as an interpreter.

There are two classes of individuals who are generally barred from serving as interpreters on impartiality grounds.

First, individuals who are witnesses in the interviewee’s case are considered to be “inherently partial and biased.” A witness may only serve is an interpreter if the interviewee demonstrates good cause to the satisfaction of the USCIS officer overseeing the case. This applies regardless of whether the witness is related to the interviewee.

Second, an attorney or representative of the interview who filed a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative on behalf of the interviewee is barred from serving as an interpreter. There is no good cause exception to this bar.

Requisite Form

Both the interpreter and the interviewee must sign the Form G-1256, Declaration of Interpreted USCIS Interview. There is no exception to this requirement.

Restricted Individuals

There are three classes of restricted individuals. We have already addressed the three classes in the article. In this section, we examine the restricted classes in detail and the circumstances under which certain individuals from restricted classes may be permitted to serve as interpreters with a showing of good cause.

Minors Under the Age of 18

As we have noted, minors under the age of 18 are generally prohibited from serving as interpreters. Under no circumstance may a minor under the age of 14 serve as an interpreter. A USCIS officer may approve a a minor aged 14 through 17 as an interpreter provided that a showing of good cause is made and that the minor meets the core qualification requirements of fluency, competency, and impartiality that are generally applicable to all interpreters.

Witnesses

For the purpose of USCIS interviews, a “witness” is defined as “anyone who, during the interview, gives a firsthand account of something seen, heard, or experienced, or who, prior to or during the interview of the case-at-hand, provides written testimony in the relevant case.” Any individual who is described by that definition is barred from serving is an interviewer unless the USCIS officer determines that there is an exception for good cause. The PM provides the following list of persons who may be classified as “witnesses” and require a showing of good cause to serve as interviewers:

An individual who is the petitioner in the case (but not the “interviewee,” per se);
An individual who provides affidavits in connection with the case;
An individual who provides oral testimony at an interview or other immigration proceeding;
An individual who provides letters of support for the case.

If good cause is shown, a USCIS officer may, in his or her discretion, permit a witness to serve as an interpreter. The USCIS officer must discuss the situation with a supervisor even if good cause is established.

If a derivative beneficiary is a “witness,” he or she is subject to the good cause requirement. However, if the derivative beneficiary is not a “witness,” he or she is not subject to the good cause requirement, although the USCIS may scrutinize the situation closely to assess the derivative’s impartiality.

Representatives

Attorneys and accredited representatives who submitted a Form G-28 to represent the applicant, petitioner, or beneficiary may not serve as interpreters. In addition, the following individuals are also barred from serving as interpreters:

Authorized/requested associates of the attorneys or accredited representatives; and
Law students or law graduates working under the direct supervision of the attorney or accredited representative.

This bar only applies if such individuals are representing a party to the cause while endeavoring to simultaneously serve as an interpreter for the interviewee. There is no good cause exception.

In order for an attorney or representative of the interviewee to serve as an interpreter, he or she must withdraw the Form G-28 and will be prohibited from serving as the attorney or representative during the interview. In such a case, the USCIS must still determine whether the interviewer can meet the core qualification requirements, most notably the impartiality requirement. Merely withdrawing the Form G-28 does not guarantee approval as an interpreter. Additionally, a USCIS officer must obtain supervisory approval to grant an interpreter request in this situation.

The PM notes clearly that while the attorney or representative of the applicant, petitioner, or beneficiary may not serve as an interpreter, the attorney or representative may assist in the interview. For example, the attorney or representative may ask the interviewing officer to “clarify or repeat a question posed to the interviewee that [he or she] believes the interpreter did not interpret correctly or that the interviewee did not understand.” Please see our blog to learn more about the attorney role in USCIS interviews [see blog].

Rules for Exceptions for Good Cause

Restricted individuals aged 14 through 17 and witnesses may be permitted to serve as interpreters with a showing of good cause. A good cause exception may be requested by the interviewee or his or her representative. The USCIS officer may find that a good cause exception is warranted even without such a request. Good cause does not mitigate any of the core qualification requirements for serving as an interpreter.

In determining whether an exception for good cause is warranted, the interviewing officer is directed to consider the totality of the evidence. In short, the evidence supporting the good cause determination must outweigh the reasons why the proposed interpreter is restricted. The decision of whether to allow a restricted interviewer is at the discretion of the USCIS. The interviewing officer must procure a supervisory opinion when granting a good cause exception.

The following chart, reproduced from pages 10-12 of the PM, provides examples of good cause. The chart is non-exhaustive, and it therefore does not cover ever possibly situation. All good cause exception determinations are made on a case-by-case basis in light of the totality of the evidence.

EXAMPLES OF GOOD CAUSE
Cause Explanation Possible Records or Documents that may already be contained in the A-file or volunteered by the interviewee or the interpreter
Prejudicial Delay A delay that may prevent the interviewee from qualifying for a benefit or when the delay may harm an interviewee with a documented, serious medical condition (e.g., interviewee may age out prior to rescheduling an interview; a pregnant interviewee who is due to give birth imminently). Birth certificate for those aging out; medical documentation of interviewee’s due date.
Lives in Rural/Remote/Sparsely Populated Areas Interviewees who live in rural areas where there are few individuals who speak the interviewee’s language may not have access to qualified interpreters in the community.1 Interviewees may access the U.S. Census Bureau website, www.quickfacts.census.gov, to get information on whether the type of area he or she resides in is a “rural” area; documentation verifying the population of his or her residence. (Other reliable sources supporting the rural, remote, or sparsely populated nature of the interviewee’s residence may also be considered.)
Rare Dialect or Language Interviewees may only speak a language for which an interpreter is extremely difficult to obtain.2 Evidence/Records in the file may include documentation that the interviewee’s language is considered rare or the officer may consult a book or website about rare languages or dialects.
Confidential Medical Conditions Interviewees with certain medical conditions may not want to share sensitive information with an unfamiliar interpreter.3 I-693, Report of Medical Examination and Vaccination Record;4 24 letter from medical doctor or health provider documenting medical condition.
Confidential/Protected Information VAWA interviewees may not want to disclose sensitive abuse information or personal information with an unfamiliar interpreter. Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and supporting documentation.
Interviewees with certain physical or mental disabilities including developmental disabilities Interviewees with certain physical or mental disabilities including developmental disabilities may be more responsive to a familiar interpreter, such as their typical support person.5 Statement from medical doctor or social service provider indicating that the interviewee is unable to communicate through an unfamiliar interpreter due to the disability; court ordered legal guardianship or conservator documents.
  1. Interviewees who live in a geographic area designated by the U.S. Census Bureau as “rural,” which is defined as areas with less than 2,500 residents. See www.quickfacts.census.gov, which gives the most recent estimate of population/rural determinations based on state, county, or city. Note, however, that the fact that an area is rural does not necessarily establish in all cases that there are few individuals there who speak the interviewee’s language, as some of these areas are home to significant concentrated populations of certain immigrant groups.
  2. For example, certain interviewees may communicate only (or best) in Chamicuro; Mam; Ixil; or Alsatian. However, officers should be attuned to situations where an interviewee may be able to communicate fluently in a second language for which a qualified interpreter may be more readily available. For example, Mayans are often fluent in Spanish, and Alsatians can often speak German, French or both. Officers may consider whether the interviewee is fluent in a second language and could obtain a qualified interpreter in that language. However, if the interviewee credibly indicates that he or she would have difficulty participating fully in the interview if he or she had to use the second language, officers should not encourage the interviewee to do so.
  3. For example, HIV/AIDS, sexually transmitted diseases.
  4. If this form is not already in the A-File, it should not be specifically requested; rather, this form is listed as an example of the type of evidence that could be produced to support a good cause exception based on a “Confidential Medical Condition.”
  5. For example, Alzheimer’s disease or Down syndrome.

Note: Footnotes are numbered 21-25 in the PM & AFM.

Conduct of the Interview

Before an interview, the USCIS officer handling the case will explain to the interpreter his or her role. The interpreter will interpret this explanation to the interviewee.

The interpreter and the interviewee must complete the Declaration form and sign it under oath in the USCIS officer’s presence. The Declaration form informs all parties of the role and obligations of the interpreter. The Declaration form also notifies the interviewee that the interpreter may hear confidential information regarding his or her case. By signing the Declaration, the interpreter agrees to not disclose or share any of the information learned as a result of serving as an interpreter in the interview. At the onset of the interview itself, the interviewer will again explain the role of the interpreter along with all of the rules for interpretation.

During the interview, the USCIS requires the interpreter to provide consecutive and not simultaneous interpretation that is as close to verbatim as possible. This means that the interpreter is required to wait until the speaker is finished talking and to only then provide an accurate translation of what was actually said. The interpreter may not translate while the speaker is speaking. Furthermore, the interpreter also may not provide summaries or any other non-literal translation of what the speaker said.

The PM provides the following rules for the conduct of the interpreter during the interview:

The interpreter must interpret verbatim (using the speaker’s choice of words rather than his or her own choice of words).
The interpreter may not adopt the role of interviewer or take on the primary questioning role.
The interpreter may not provide his or her own opinion or commentary.
The interpreter may not rephrase the speaker’s sentences with his or her own choice of words.
The interpreter may not engage in a conversation with the interviewee during the interview. If something is unclear, the interpreter should instead advise the interviewer (however, it is in the interviewer’s discretion whether to clarify or rephrase a question).
The interpreter is prohibited from resolving perceived ambiguities or to paraphrase or summarize any exchanges.
The interpreter is required to advise the officer if certain terminology cannot be interpreted verbatim but that an interpretation that would in the opinion of the interpreter nevertheless accurately convey the meaning of what is being said will instead be used. In such a situation, the interviewer may instead opt to rephrase the questionthat had elicited the response at issue.
The interpreter must use the same grammatical voice as a speaker. The PM uses the example of maintaining the same verb tense as the speaker.
The interpreter must maintain a neutral reaction to what the interviewee says during the interview.
The interpreter may not offer his or her opinion of what the interviewee is saying.
The interpreter may provide an oral translation of any forms or documents provided that he or she is competent to provide such translation.

The PM includes guidance for interviewers that we will only summarize briefly. Interviewers are tasked with enforcing the rules of the interview and ensuring that both the interviewee and interpreter understand these rules and terms. Interviewers are instructed to “[s]peak slowly, clearly, and in short sentences.” Interviewers are also instructed to “[u]se common, uncomplicated words as much as possible.” Interviewers are directed to repeat questions if it seems that the interpreter did not understand them. If the interviewer is uncertain that he or she understood what the interviewee said in response to a question, the interviewer is instructed to repeat back to the interviewee what he or she understood the interviewee to have said. The interviewer may remind the interpreter to translate all statements and questions verbatim.

Disqualifying an Interpreter

At any time before or during an interview, the USCIS may disqualify an interpreter who fails to meet all of the core qualification requirements.

Determination Prior to the Interview

In determining whether a proposed interpreter should be disqualified, USCIS officers are instructed to “make the determination carefully and support their decisions with solid reasoning and facts.” This principle applies when determining whether a restricted individual may serve as an interpreter with a showing of good cause. In one interesting point, the PM states that in the “rare circumstances” in which a restricted individual does not appear to have grounds for an exception for good cause, but who nevertheless meets the core qualifications, the USCIS officer must consult local field office management.

Determination During the Interview

That the USCIS allows an interpreter to begin interpreting for an interview does not mean that the USCIS officer may not find, in the course of the interview, that the interpreter does not meet the core qualification requirements.

First, the PM provides a list of problems that may arise with the interpretation in an interview that the interviewer “may attempt to resolve or correct.”

The interviewee’s response to a question does not answer the question or only partially answers the question.
The interviewer recognizes words not being interpreted.
The interpreter appears to use many more words than the speaker did in translating a question or response (note, this is not necessarily dispositive since “[s]ome questions will require more or fewer words in one language than in another).
A response from the interviewee is interpreted as longer or shorter than what the interviewee appeared to have said.
There is a back-and-forth dialogue between the interpreter and the interviewee.
The interviewee provides non-verbal signs conveying that he or she is confused or concerned.
The interviewee appears to understand some of the interpreter’s translation and conveys to the interviewer that the interpreter is not conveying it correctly.

In the above cases, the interviewer may intervene to endeavor to resolve the issue. If the issue persists, the interviewer may move to disqualify the interpreter.

The PM provides the following list of situations in which the interviewer should disqualify the interviewer. In the rare case where the interviewer opts not to disqualify the interpreter in one of the following cases, the interviewer must procure supervisory approval and must document in the case file his or her reasons for the decision.

The interpreter is clearly testifying for the interviewee and refuses to cease and interpret only what the interviewee stated.
The interpreter is clearly coaching the interviewee.
The interpreter is embellishing or changing answers, or altering questions, and the interpreter refuses to cease at the request of the interviewer.
The interpreter and interviewee clearly appear to be consulting or collaborating on responses to questions and refuse to cease at the request of the interviewer.
The interpreter appears to be inhibiting the interviewee’s testimony.
The interviewer has good reason to suspect that the interviewer is, alone or in consultation with the interviewee, engaging in fraud when providing responses to the interviewer’s questions.

Procedures for Disqualification

When the USCIS officer determines that the integrity of the interview is compromised by the interpreter’s participation, he or she may, after consulting his or her supervisory, disqualify the interpreter.

Upon supervisory approval of an interpreter disqualification, the USCIS officer must explain to the applicant or petitioner the general reason(s) for the disqualification. The USCIS officer must then offer the interviewee the following options:

1. Continue the interview with another qualified interpreter;
2. Reschedule the interview per local procedures in order to allow the interviewee the opportunity to bring another qualified interpreter; or
3. Continue the interview without an interpreter if the interviewee voluntarily desires to do so.

If the disqualified interpreter is generally competent in his or her language interpretation skills, the USCIS officer may use the disqualified interpreter to help explain the reason(s) for the disqualification and the other options available to the interviewee.

If the interviewee opts to continue the interview without the assistance of an interpreter, the USCIS officer must ascertain whether he or she can communicate effectively in English with the interviewee. In order to make this determination, the USCIS officer may ask the interviewee open-ended questions unrelated to the interview in order to assess the interviewee’s English-language ability. If the USCIS officer determines that the interviewee is sufficiently proficient in English to proceed, the USCIS officer must ensure that the interviewee understands that he or she has the option of rescheduling the interview to bring a qualified interpreter and that the interviewee understands that he or she is going forward with the interview in English before proceeding.

Special Note on Naturalization Cases Governed by 8 C.F.R. 312.4

For naturalization interviews conducted under 8 C.F.R. 312.4, if the USCIS disqualifies an interpreter brought by the applicant, it is required to provide another interpreter for the applicant in a timely manner. The USCIS only has this obligation for naturalization interviews conducted under 8 C.F.R. 312.4.

Conclusion

It is essential that an individual who is not proficient in English have a skilled and impartial interpreter for any interviews with the USCIS where the USCIS cannot provide language-assistance services. Where possible, individuals should seek the assistance of a professional interpreter with no impartiality concerns in the case. Although the attorney or representative (or individuals working directly under such attorney or representative) of the applicant, beneficiary, or petitioner may not serve as an interpreter, an experienced immigration attorney may help ensure that an individual’s interests are protected throughout the USCIS interview process. In addition to providing representation in an interview, an attorney or representative may assist the individual in finding a well-qualified interpreter.