Monthly Archives: December 2014

5 Tips to Avoid Ethical Pitfalls in Flat Fee Agreements

Flat fees are a welcome alternative to hourly billing.

This arrangement means the attorney charges a fixed fee for the agreed-upon legal service. The client knows exactly what he will pay for the service and usually begins making payments at the outset of representation.

In my immigration practice — although I can offer an hourly rate to clients — I typically quote a flat fee first. No client ever asks to be billed by the hour instead. Most prefer to know the exact value/cost of the agreed-upon legal service, rather than be billed for the lawyer’s time (usually in six, ten or fifteen-minute increments).

While flat fees offer several advantages, they also present ethical pitfalls, particularly when the attorney-client relationship ends before all the work is completed.

Flat Fees Are Subject to a Partial Refund if the Work is Not Fully Performed and to a Full Refund if the Work is Not Performed At All

Minnesota Lawyer recently published an article by Patrick Burns, First Assistant Director of the Minnesota Office of Lawyers Professional Responsibility, titled Ethics: Refunds of Unearned Flat Fees (reprinted here).

In the article, Burns states that there have been complaints filed with the Office of Lawyers Professional Responsibility where the lawyer and client entered into a flat fee agreement, but the agreed-upon service was not fully provided. In some instances, the lawyer claimed no refund was due because the total fee had been earned even though the services were not fully provided. The lawyer argued that he spent enough time on the matter such that the flat fee (when analyzed on an hourly fee basis) was fully earned.

Burns points out, “The flat fee agreement fixes a value for specific legal services to be rendered. If those services are not fully rendered, a refund is due to the client no matter how many hours the lawyer has spent on the matter.”

Amendments to Rule 1.5 Marked the End of Non-Refundable Fees

Previously, Minnesota lawyers could charge non-refundable retainer fees. It was quite common for criminal defense or estate planning attorneys to use non-refundable retainer agreements.

Prior language under Rule 1.5 of the Minnesota Rules of Professional Conduct allowed for non-refundable advance payments of availability (retainer) fees. There was no requirement that the non-refundable retainer be held in a trust account. If clients terminated the representation, they normally forfeited the retainer fee and did not get a refund.

But the amended Rule 1.5, which went into effect on July 1, 2011, prohibits non-refundable fees. The current rule states that while advance payments of flat fees and availability (retainer) fees, if agreed upon in writing, are the lawyer’s property, they are subject to refund.

As part of the amendments, the Minnesota Supreme Court deleted from Rule 1.5(b), the following sentence, “All agreements for the advance payment of nonrefundable fees to secure a lawyer’s availability for a specific period of time or a specific service shall be reasonable in amount and clearly communicated in a writing signed by the client.”

The Court added to Rule 1.5 (b) the following:

Except as provided below, fee payments received by a lawyer before legal services have been rendered are presumed to be unearned and shall be held in a trust account pursuant to Rule 1.15.

 (1) A lawyer may charge a flat fee for specified legal services, which constitutes complete payment for those services and may be paid in whole or in part in advance of the lawyer providing the services. If agreed to in advance in a written fee agreement signed by the client, a flat fee shall be considered to be the lawyer’s property upon payment of the fee, subject to refund as described in Rule 1.5(b)(3). Such a written fee agreement shall notify the client:

(i) of the nature and scope of the services to be provided;

(ii) of the total amount of the fee and the terms of payment;

(iii) that the fee will not be held in a trust account until earned;

(iv) that the client has the right to terminate the client-lawyer relationship; and

(v) that the client will be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided.

(2) A lawyer may charge a fee to ensure the lawyer’s availability to the client during a specified period or on a specified matter in addition to and apart from any compensation for legal services performed. Such an availability fee shall be reasonable in amount and communicated in a writing signed by the client. The writing shall clearly state that the fee is for availability only and that fees for legal services will be charged
separately. An availability fee may be considered to be the lawyer’s property upon payment of the fee, subject to refund in whole or in part should the lawyer not be
available as promised.

(3) Fee agreements may not describe any fee as nonrefundable or earned upon receipt but may describe the advance fee payment as the lawyer’s property subject to refund. Whenever a client has paid a flat fee . . . and the lawyer-client relationship is terminated before the fee is fully earned, the lawyer shall refund to the client the unearned portion of the fee. If a client disputes the amount of the fee that has been earned, the lawyer shall take reasonable and prompt action to resolve the dispute.

Although flat fees and retainer fees do not have to be placed in a trust account until they are earned, they are still subject to refund. Flat fees are subject to a partial refund if the work is not fully performed. They are also subject to a full refund if the work is not performed at all. Retainer fees are subject to refund if the attorney is not available as promised. Such fee agreements also must be communicated in writing to the client.

The amended Rule 1.5 presents ethical pitfalls for Minnesota attorneys, particularly when the client makes advance payments of flat fees and the agreed-upon service is not fully provided or not provided at all.

Here are five tips to avoid ethical pitfalls in flat fee agreements for specified legal services: 

1. Choose the clients you love and love the clients you have

Good client relations and effective, regular communication between the attorney and client reduce the likelihood of a breakdown in the relationship and an early termination of representation. When agreed-upon legal service is not fully performed, it’s usually because the client fires the attorney or the attorney withdraws from the case.

To minimize breakdowns in the relationship or to avoid fee disputes, you want to have good clients who appreciate the value you bring.

If the client had many prior attorneys before he met with you, this could be a red flag. Look out for warning signs of a bad client.  Then once you accept a case, work on it diligently, provide excellent service, and give ongoing status updates to the client.

2. Break down the representation into stages or segments

Flat fees are most appropriate in relatively simple or routine matters, such as writing a basic will, overseeing a real estate closing, or preparing an uncontested divorce petition. They also work well in complex cases where the representation can be broken into segments and stages.  A separate fee can be charged for each segment or stage individually.

If the attorney carefully outlines, in the fee agreement, what is and isn’t covered in each segment or stage of the representation, it’s easier to determine what work is already done versus work yet to be done.

For example, a U.S citizen client may hire an immigration attorney for full representation in obtaining an immigrant visa for his foreign national spouse who lives overseas. The process starts with filing an I-130 immigrant petition, proceeds to the filing of the immigrant visa application, and ends with the immigrant visa interview, after which time the U.S. Consulate grants or denies the immigrant visa.

Instead of having one fee agreement that lumps in and does not distinguish the different stages, the attorney and client may have one fee agreement that clearly delineates each stage and the related fee, or have separate fee agreements for each stage and the related fee.

3. Have a written fee agreement that includes the required language

If  the advance fee payment is to be considered the lawyer’s property, subject to refund, the client must consent to this in a written fee agreement.

A written fee agreement that calls for advance payment of flat fees must also include the required language set forth in Rule 1.5(b).

The agreement must notify the client that he will be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided. It also cannot include any language describing an advance payment as non-refundable or earned upon receipt.

4. Don’t spend it all

Minnesota lawyers may accept full or partial payment of a flat fee in advance of performing the specified legal services. They may deposit the payment in an operating account instead of in a trust account, if they consider the payment their property (assuming the agreement is in writing).

But they have no right to a non-refundable flat fee. If they do not fully perform the agreed-upon services, they must refund the “unearned” portion of the fee upon termination of representation.

The safest thing to do is to wait until the work is done and then charge the fee, but this leads to cash flow problems and makes it practically impossible to pay bills and keep the law firm running.

Advance payments are necessary for most lawyers. But because flat fees cannot be non-refundable under Rule 1.5, it’s important to put money aside in the event of a fee dispute.

Although the ethics rule doesn’t require you to deposit advance payments in the trust account until earned, you still have the option to do so. Otherwise, keep a nominal amount of funds in the operating account for those rare occasions where you might need to give money back.

5. Keep a time record

One reason why lawyers prefer flat-fee arrangements is that you don’t have to present timekeeping records with your bills. Is there any lawyer out there who enjoys the painstaking chore of entering time?

But because unearned fees are subject to refund, lawyers need to maintain some type of time record for each case, even if it involves a flat fee arrangement. (At the very least, time keeping helps you determine whether you are working efficiently on a case and gives you a more realistic perspective on how much to charge for the next, similar case.)

If the agreed-upon work is not fully performed, the hourly metrics help to show how much of the fee the attorney has earned. Rule 1.5(a) states that a lawyer must charge reasonable fees, and the time and labor required to do the work are primary factors.

While you don’t have to track your time down to every minute in flat fee arrangements, as you would in hourly billing, you want to keep some type of time record. This backup documentation will help you resolve fee disputes and decide how much to refund to the client.

Although the time spent is not “an exclusive factor,” it “may be considered” in determining the value of the services that the lawyer completed, as Burns states in the Minnesota Lawyer article.

To a great extent, your knowing that advance payment is always subject to refund makes you a much more diligent attorney. You will do the work and communicate well with your client if you know you have to give money back if you don’t.

* * *

Apply these five tips to avoid ethical pitfalls in flat fee arrangements, particularly when you accept partial payment or full payment before you complete all the work.

This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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What to expect after your marriage-based green card interview

A marriage-based green card interview before USCIS is required when a foreign national files a Form I-485 (green card) application based on a U.S. citizen (or permanent resident) spouse’s I-130 immigrant petition for him or her.  A fiancé(e) who enters the U.S. on a K-1 visa, marries the U.S. citizen petitioner, and then files an Form I-485 may also be scheduled for an interview.

What is the best possible outcome of a marriage-based immigration interview? 

If, at the end of the interview, the officer determines your marriage is bona fide, the I-130 petition can be approved on the spot. The I-485 will be approved as well if the foreign national qualifies for adjustment of status, the background check has cleared, and the marriage is found to be bona fide.

You will receive approval notices in the mail, after which the green card is issued in about three weeks.

What delays may occur following a marriage-based immigration interview? 

Case put on hold due to delays in name check and FBI clearance

Sometimes the FBI and other outside agencies are unable to complete all the background checks on the foreign national before the interview date. The USCIS officer may still approve the I-130 petition, but not the green card application until all the background checks are clear. You may schedule an InfoPass appointment to check on the progress in your case.

Case put on hold because officer is undecided or has other priorities

Sometimes the officer is undecided on whether to approve or deny the case.  For example, the officer is convinced that the parties share a bona fide marriage, but questions whether the foreign national is eligible for adjustment of status. A false claim to U.S. citizenship to gain employment or a serious criminal conviction are two common reasons why an adjustment application can be held up, even if the officer intends to approve the I-130 petition.

The interviewing officer may forward the case to a supervisor for further review and guidance. The sheer volume of petitions and applications being processed at the USCIS field office can add to the delay.

Several months might pass before the officer finally approves the case. In some instances, the officer may approve the petition, but deny the I-485 adjustment application. If the foreign national is placed in removal proceedings, the adjustment application and other forms of relief can be reviewed by an Immigration Judge.

Case put on hold because more evidence is needed or negative information is in the file

When more information is needed to issue a decision in your case, the officer has several options.

Request for Evidence

The officer may issue a Request for Evidence (RFE) specifying the additional documents you must submit.  You  will have a set time frame in which to submit the evidence (usually 12 weeks).  Although an RFE does not mean USCIS intends to deny the case,  your failure to file a timely response could lead to a denial.

Site Investigation

If the officer suspects the marriage is a sham, USCIS may conduct further investigation. This includes USCIS investigating officers showing up at the parties’ claimed residence to verify if they live together as a married couple. The “bed check” or “site visit” can occur at any time after the interview — sometimes as long as one to two years later — while the case is pending.

The site visit is unscheduled and typically occurs very early in the morning.  The USCIS officers will knock on your door or ring your doorbell and ask to enter your home so they can see firsthand where you live.  They may look inside your closets, check out your bathrooms and bedrooms, ask about family photos on your walls, etc. to get a sense of whether you really live together as a married couple. They may also ask you questions at the site visit, which you must treat like a formal interview.

While you may refuse to admit the officers into your home, this could raise more suspicion and trigger other types of investigation. If no authorized person is around to admit the officers inside the home, they can keep coming back or take a look around outside the home. In any event, it’s better to have at least one party and preferably both parties, in the marriage, at home when the officer conducts the site visit.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence.

USCIS does not, as a matter of practice, stake out your home for days. Once they have an opportunity to enter and see where you live, this is usually the end of the site visit. Sometimes they do not come back after the first attempt. Although this can be a daunting experience, go about your life as you normally would.

Source Checks

USCIS also often checks Department of Motor Vehicle (DMV) records, court records, social media, and other miscellaneous sources to  see if there is any adverse information, such as the parties claiming different residences or failing to hold themselves out as a married couple.

In some cases, USCIS may contact your place of employment or school to verify certain information, such as your emergency contacts, marital status and current residence listed. The employer or school, however, does not have to give this information to USCIS, especially if they have privacy policies and rules to follow.

Follow-Up Interview

USCIS may also schedule you for another interview, which could occur as much as 6+ months after the first interview. The follow-up interview is usually to test whether you’re still living together and to question each of you separately. A new interview may also follow after USCIS has conducted a site visit to your home or completed other types of investigation.

When you are asked the same questions individually, the officer will compare your answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did your spouse wear to bed last night?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

Notice of Intent to Deny

In extreme cases, USCIS may issue a Notice of Intent to Deny (NOID) petition because there is evidence of a sham marriage, i.e. a marriage that is entered into solely for or primarily for immigration benefits.

In addition, USCIS may issue a NOID when the foreign national was the beneficiary of a prior spousal immigrant petition that was denied or found to be fraudulent. This is because section 204(c) of the Immigration & Nationality Act bars the approval of any subsequent petition for a beneficiary who is found to have previously entered into a sham marriage for immigration benefits.

Seek Immigration Counsel

If USCIS issues a Notice of Intent to Deny (NOID) the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

You are better off having an attorney present at the interview. And the best time to consult an attorney is before you file the marriage-based adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when irreparable mistakes might have already occurred.

For more information, read our related article, What to expect at your marriage-based green card interview.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What to expect at your marriage-based green card interview

Before USCIS approves a marriage-based green card application, it will normally interview the couple to determine whether their marriage is real or fake.

Marrying a U.S. citizen doesn’t automatically lead to a green card for the foreign national spouse. The U.S. citizen must prove that the marriage is bona fide (i.e. entered into with the intent of establishing a married life together), and is not a sham (i.e. entered into just to gain immigration benefits). The green card applicant also needs to be admissible to the U.S. or otherwise qualify for a waiver of inadmissibility.

To start the process, the U.S. citizen first files a Form I-130 immigrant petition for the spouse. If the couple is not yet married, the U.S. citizen may file a Form I-129F petition to bring a fiancé(e) to the U.S. on a K-1 visa.

A spouse who is already in the U.S. and qualifies for adjustment to permanent residence may file the Form I-485 (green card) application at the same time the I-130 is filed. This is known as concurrent filing or “one-step adjustment of status.” A fiancé(e) who enters the U.S. on a K-1 visa must marry the U.S. citizen within 90 days of arrival and then file for adjustment.

After filing a marriage-based green card application, the petitioner and foreign national will receive an interview notice to appear at the local USCIS field office at a scheduled date and time. The notice is normally issued two to eight weeks prior to the interview. USCIS may waive an I-485 interview for K-1 entrants, but the documentation must be strong enough to get an approval without an interview.

USCIS will approve the I-130 only after it determines that they truly share a married life together.  In addition to providing documentation of a shared married life (e.g., joint mortgage, joint bills, joint tax returns, birth certificates of children, family photographs), the couple must also give credible testimony confirming their marriage is bona fide.

USCIS will also verify whether the I-485 applicant has any criminal history, immigration fraud or misrepresentationpublic charge or other inadmissibility issues that prevent adjustment.

Knowing what to expect at the USCIS interview is crucial to obtaining an I-130 and I-485 approval and avoiding further investigation, delays in the case, or a denial notice.

What are the basic steps to follow at a marriage-based immigration interview? 

1) You arrive at the USCIS building and present your interview notice to the security guard. Before you can proceed to the waiting room, you go through a metal detector and your personal belongings go through screening. Each USCIS field office has its own protocol, but cameras (including cell phones with cameras) and recording devices are normally prohibited.

(NOTE: Arrive at least 15 minutes early, but no more than 45 minutes in advance of the appointment. If you arrive too early, you may be turned away and asked to come back closer to your appointment time.)

2) You proceed to the waiting area and hand in your interview notice at the window. You then wait for your name to be called by the USCIS adjudications officer assigned to review your case. Although the interview usually starts on time, be prepared to wait for a more extended period.

3) The USCIS officer will normally bring both of you to his or her desk to be interviewed together (instead of question you separately).

4) You will be asked to remain standing while you take oaths to tell the truth. You will need to verify your identity by presenting your driver’s license or other form of ID.

5) The officer will typically review your marriage certificate, divorce decrees (if you had any prior marriages), and passport. Bring the originals with you in case the officer wants to see them.

6)  The officer will go through the application forms to verify basic information such as your address, telephone numbers, and dates of birth.

7) The officer will next ask questions about your relationship and your married life together, such as when and how you met; when and why you decided to get married; who proposed; how many people attended your wedding; and when you moved in together.

8)  You also have the opportunity to present additional evidence of your married life, especially if you had few documents to present at the time of filing the petition and adjustment application.

A joint interview is the best kind. If you have a bona fide marriage, you get an opportunity to show the USCIS officer firsthand how you interact with each other. You also worry less because you get to hear your spouse’s answers to the officer’s questions. Either one of you may also answer the question unless it deals specifically with the other spouse or is posed directly to him or her.

Joint interviews run more smoothly and take less time. When you are interviewed together, it generally means the officer has fewer concerns about the marriage.

Be as natural as you can be, regardless of how nervous you are. Don’t pretend to be the couple you’re not.

Avoid exaggerations and misrepresentations. Lying to a USCIS officer – especially about material facts – to obtain a green card will get you in trouble. If caught, you may be subject to a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). (If you have concerns about your case and feel tempted to lie about certain issues, consult an attorney before you go to the interview.)

What  problems can occur at a marriage-based immigration interview? 

Lack of documentation, the couple’s demeanor, discrepancies in the testimonies, faulty translations by an interpreter, the filing of prior spousal immigrant petitions for the same beneficiary, and other factors may cause the officer to have doubts about the marriage.

The officer may separate the couple on the day of the interview and question each party individually. Each person will be asked the same questions separately. Then the officer will compare the answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did your spouse wear to bed last night?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

To learn more about other potential problems, read What to expect after your marriage-based green card interview.

Seek Immigration Counsel

Getting an I-130 approval notice and I-485 welcome notice is the best outcome possible. Short of that, your case could be put on hold for various reasons. But perhaps the worst thing to get is a Notice of Intent to Deny (NOID).

If USCIS issues a Notice of Intent to Deny the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

Working with a reputable attorney from start to finish will help reduce problems and get your case approved. It’s best to consult an attorney before you file the marriage-based adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when mistakes cannot be undone.

For more information, read our related article, What to expect after your marriage-based green card interview.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Risks of H-1B layoff or job loss (and how to overcome them)

Corporate restructuring and downsizing are not unusual in today’s business climate.

H-1B employees who face layoffs or job loss can change employers to keep their status and avoid departing the U.S. to apply for a new visa overseas.

Below are the main risks and consequences of an H-1B layoff or job loss and the steps the employee and employer can take to overcome them:

 

Risks and Consequences

Falling Out of Status

H-1B status through the sponsoring employer ends on the employee’s last day of work. Upon termination, employers must send a Notice of H-1B termination to U.S. Citizenship & Immigration Services (USCIS). USCIS may then decide to revoke the H-1B approval. The employee loses H-1B status upon termination of employment, not upon revocation.

There is no grace period following the layoff. Employees are out of status the day following their last day of work.  Even if the employee receives severance pay following termination of employment, he is still out of status because he is not working under the terms of the H-1B petition. Receiving paychecks beyond the termination date is different from negotiating an extended termination date. Loss of lawful H-1B status means the employee is subject to removal from the United States.

Extension of status or change of status

In general, the employee must be in valid status to qualify for an extension of status (EOS) or change of status (COS). This means USCIS must receive the request to extend or change nonimmigrant status on or before the final day of the H-1B employment.

In limited circumstances, USCIS may exercise favorable discretion and overlook short gaps between the loss of status and filing of the EOS or COS request, especially if the layoff or job loss was unexpected.

Accumulating Unlawful Presence

Unlawful presence begins when the employee’s authorized period expires (i.e. the expiration date of the I-94 or upon USCIS’ issuance of notice ending the status, whichever is earlier). The timely filing of a new H-1B petition or request for change of status (e.g. to F-1 student or B-1/B-2 visitor) can also extend the authorized period.

3-year/10-year bar of inadmissibility

Foreign nationals who accumulate 180 days to 1 year of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 3 years (unless they qualify for a waiver).

Foreign nationals who accumulate 1 year of more of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 10 years (unless they qualify for a waiver).

Steps the Employee and Employer Can Take

1. Employee: File a new sponsoring employer and qualifying job

Advance notice of the layoff provides time to look for a new job prior to termination of employment. The job must qualify as a specialty occupation and the employer must be willing to file the Form I-129, H-1B extension petition.

If a new employer files a new H-1B petition prior to the H-1B revocation or prior to termination of employment, the employee will be in an “authorized period of stay” while the new petition is pending.

H-1B portability allows the employee to change to a different job with a new employer without the risk of being out of status.

2. Employer: File the H-1B extension petition as quickly as possible, preferably before the employee is terminated from the old job

Normally, an application to change status (e.g. H-1B to F-1 student or B-1/B-2 visitor) or extend status (e.g. transfer or porting of H-1B to a different employer) must be filed while the foreign national is still in lawful status.

To obtain an H-1B extension, the new H-1B petition with approved labor condition application must be filed with USCIS before expiration of status, revocation of status, or termination of employment (whichever is earliest). USCIS typically requests paystubs to verify when employment with the prior employer ended.

An employee can have multiple H-1B visas, so the new employer does not have to wait until the old job is lost.

The regulations, however, indicate that USCIS may, in its discretion, excuse a late filed petition when there are extraordinary circumstances beyond the employee’s control or the petitioning employer’s control.

The delay in filing must be commensurate with the circumstances; the foreign national must not have otherwise violated his nonimmigrant status; the foreign national must be a bona fide nonimmigrant; and the foreign national must not be in removal proceedings.

NOTE: USCIS may approve the new H-1B petition even if it denies the extension of status. In that case, the employee would need to depart the U.S. to consular process the H-1B visa overseas. If the 3-year/10-year bar applies, the visa applicant will also need to obtain a 212(d)(3) waiver.

3. Employer: Request Premium Processing of H-1B petition

The employee does not officially have H1B status and work authorization until USCIS actually approves the new petition. The employer may request premium processing (i.e file Form I-907) to receive a quicker decision.

4. Employee: Start working only after USCIS receives the new H-1B petition or, better yet, after USCIS approves it

H-1B portability generally allows  the employee to work for a new employer without needing to depart the U.S. for a new H-1B visa.

The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous”; (3) the new H-1B petition was filed before the date of expiration of authorized stay period (as stated on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization before the filing of the petition.

When the H-1B change of employer petition is timely filed, the employee is generally eligible to work when USCIS issues the receipt notice. But the employee should wait for the H-1B approval rather than rely on H-1B portability when the new petition is untimely (i.e. filed after the employee is terminated by the prior employer and falls out of H-1B status).

If the H-1B extension request is denied, the denial is retroactive to the date the petition was filed. Although portability allows the employee to work for the new employer until the date of denial, once the petition is denied, the employment is no longer authorized and the employee is out of status.

If USCIS approves the H-1B extension petition, the “interim” work authorization ends. USCIS may do one of two things:

(1) use its discretion and approve an extension of status, permitting the employee to stay in the U.S. in H-1B status and continue working for the new employer; or (2) deny the extension of status request and require the employee to depart the U.S., and obtain an H-1B visa at the U.S. Consulate.

(If the employee already has a valid H-1B visa from the old employer, he may present that visa with the new Form I-797, H-1B approval notice to request re-entry into the U.S. But it’s better to get a new visa with a new expiration date. )

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H-1B extensions beyond the normal 6 years require the employee and employer to consider other risks and take additional steps. Look out for a future article on this issue.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: woodleywonderworks (LEGOS workers fired from their jobs)

5 myths about Obama’s executive actions on immigration

Critics argue President Obama’s executive actions on immigration are an abuse of power. On December 4, the Republican-led House passed a bill aiming to block Obama’s executive actions. To date, 24 states have joined the Texas-led coalition to legally challenge Obama’s immigration actions in court.

Here are 5 myths about Obama’s executive actions on immigration and the facts behind them:

Myth #1: Obama granted amnesty (including lawful status) to millions of undocumented immigrants

Facts: Amnesty is an automatic pardon or free pass granted to a group of individuals. Immigration amnesty is a government’s pardon of undocumented immigrants for violating immigration laws and policies.

In 1986, Congress passed — and Republican President Ronald Reagan signed into law — an immigration reform bill that granted “amnesty” to a large group of illegal immigrants (about 3 million).  The law allowed certain undocumented immigrants, who had entered the U.S. before January 1, 1982, and had resided in the U.S. continuously, to apply for permanent residence and gain a path to citizenship. It also legalized certain seasonal agricultural illegal immigrants.

Obama’s executive actions, on the other hand, do not grant permanent residence or a path to citizenship to millions of undocumented immigrants. It does not provide lawful status. It grants only temporary relief from the threat of deportation and temporary work permits to those who qualify for Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parent Accountability (DAPA).

The expanded DACA program and new DAPA program are expected to kick in on February 18, 2015 and May 19, 2015, respectively.

Not all applicants who qualify for DACA or DAPA will seek this temporary relief. According to the Migration Policy Institute, only a little over half of the young immigrants who qualified for DACA, when it was first rolled out, applied for it.

Those who are not in removal proceedings take a risk when they apply for this relief: they have to notify U.S. Citizenship and Immigration Services (USCIS) that they are in the country illegally. And there is no guarantee their request will be granted.

DACA and DAPA also do not provide long-term protection from deportation. A new president could extend the programs – or not.

If there is no extension, a large number of undocumented immigrants who came out of the shadows could be removable once again. So they need to weigh the risks and benefits, preferably with an experienced immigration attorney, before applying for DACA or DAPA. These programs do not give blanket amnesty.

Myth #2: Obama changed immigration law without Congress’ approval

Facts: Obama did not strike down or repeal existing immigration laws, which only Congress can do. Rather, he directed USCIS, Immigration & Customs Enforcement (ICE), and Customs and Border Protection (CBP) to focus on deporting felons, not families.

U.S. presidents have executive authority to decide how best to enforce the law and use limited resources. It’s called discretion.

Every president since President Dwight Eisenhower (1953-1961) has taken executive action on immigration. Executive actions can include statements of policy by the president (including setting policies on how laws will be enforced) and interpretations of regulations.

Deferred action is the use of prosecutorial discretion to defer removal action against a person for a certain period of time. This existed prior to Obama’s immigration actions. Work permits have been given to those who were granted deferred action long before Obama took office. The DACA and DAPA programs simply formalize the deferred action process for specific groups.

Myth #3:  Obama’s executive actions encourage a new wave of illegal immigration and make the border less secure

Facts:  The expanded DACA and new DAPA programs are limited to qualified applicants. For one thing, they will need to prove that they have been continuously present in the U.S. since before January 1, 2010.

The November 20 policy directs immigration agencies to focus more on deporting the following categories of unauthorized immigrants: those who pose a threat to national security, border security and public safety; those with three or more misdemeanors; those who recently crossed the border illegally; and those “who have been issued a final order of removal on or after January 1, 2014.”

Most of the resources will be spent on removing those on the high priority list. But this doesn’t necessarily mean fewer people will be deported.

Personnel from the U.S. Coast Guard, USCIS, ICE and CBP will realign to form new task forces for enforcement, while maintaining the “the surge of resources” sent to the U.S.-Mexico border during the unaccompanied minors crisis over the summer. Strengthening the border is a key part of Obama’s executive actions.

Myth #4: Obama’s executive actions hurt the U.S. economy and add costs to U.S. taxpayers

Facts: Current federal law holds that all taxpayers who are deemed “lawfully present” in the U.S. may collect Social Security and Medicare, after they have worked for at least 10 years. They may also receive survivors and disability benefits when they become eligible.

Many undocumented immigrants already file tax returns and pay taxes, regardless of whether they are authorized to work. Some own businesses (usually restaurants, bakeries, convenience stores, and construction  companies) and pay business taxes. They contribute to the U.S. economy despite their unlawful status.

The DACA and DAPA programs offer three-year work permits, subject to renewal. Deferred action recipients will receive the same benefits as other taxpayers. But allowing undocumented immigrants to work legally would likely increase tax revenue in payroll taxes.

Executive action beneficiaries will not qualify for other federal benefits such as welfare, food stamps, student financial aid, housing subsidies, Medicaid or benefits under the Affordable Care Act.

The November 20 policy also directs USCIS to promote greater use of the “national interest waiver” for the benefit of the U.S. economy.  The national interest waiver allows non-citizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship if their admission is in the national interest.

Immigration agencies are also directed to use “public interest parole” to attract and retain inventors, researchers, and founders of start-up companies “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.” This could create new jobs for American workers.

Myth #5: Obama’s executive actions derail Congress’ plan to pass immigration reform

Facts:  Obama’s executive actions do not prevent legislative action on immigration reform. “I want to work with both parties to pass a more permanent legislative solution,” Obama said in his address on November 20. “And the day I sign that bill into law, the actions I take will no longer be necessary.”

The bipartisan, comprehensive immigration reform bill passed by the Senate in June 2013 has  not been taken up by the House to date. Obama says he was compelled to take executive actions because Congress failed to pass a  bill.

Before Obama announced his executive actions, House Speaker John Boehner said in a November 6 news conference that even if Obama agreed not to take any executive action, he couldn’t promise a House floor vote on immigration reform.

While defending his executive actions as necessary and legal, Obama urged Congress to pass a bill in an appearance before 60 activists in Nashville on Tuesday.

Meanwhile, House leaders unveiled a $1.1 trillion spending bill that would fund nearly all the federal government through September 2015. But the bill would fund immigration agencies that carry out Obama’s executive actions only through February 27.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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