Monthly Archives: May 2015

I-601A, Provisional Unlawful Presence Waiver: Expansion Possible

luggage 5-31-15Back in November 2014, the Obama Administration proposed an expansion of the Form I-601A, Provisional Unlawful Presence Waiver, to a larger pool of immigrant visa applicants.

If USCIS issues new regulations for this proposed change to take effect, the sons and daughters of U.S. citizens (regardless of their age) and spouses and children of lawful permanent residents will be able to apply for the Provisional Unlawful Presence Waiver (assuming they meet the other requirements).

What is the Provisional Unlawful Presence Waiver?

Unless they qualify for 245(i) benefits, persons who entered the U.S. illegally may not apply for adjustment to lawful permanent resident status, but must travel abroad to a U.S. Consulate to apply for an immigrant visa.

Persons who accumulate more than 180 days to less than one year of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

To re-enter the U.S. on an immigrant visa before the 3/10 year bar expires, applicants must receive a waiver of inadmissibility for their unlawful presence.

On March 4, 2013, USCIS introduced the  Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain a waiver of inadmissibility for their unlawful presence before they depart the United States. The provisional waiver provides several advantages, but has many limitations.

Previously, such applicants could only file the Form I-601, Application for Waiver of Grounds of Inadmissibility, after they departed the U.S. and attended their visa interview at the U.S. Consulate abroad.

Like I-601 applicants, I-601A applicants must show their absence from the U.S. will cause extreme hardship to their qualifying relative, i.e. a U.S. citizen or permanent resident spouse or parent. (NOTE: U.S. citizen or permanent resident children are not qualifying relatives.)

What Does the Proposed Expansion Include? 

The 2013 regulations extended the Provisional Unlawful Presence Waiver only to the spouses, minor children (under age 21), and parents of U.S. citizens.

On November 20, 2014, the Secretary of Homeland Security directed USCIS to issue new regulations expanding the waiver to all statutorily eligible applicants, i.e. the spouses and children of lawful permanent residents and the adult children of U.S. citizens (assuming they meet the other criteria to obtain the waiver).

USCIS was also directed to clarify the meaning of “extreme hardship,” which is hardship that is unusual or beyond what would normally be expected. The term is not specifically defined by statute or by case law. Additional guidance on the definition could make it easier to determine what documents and information to present with the waiver application.

What Process Will USCIS Use to Expand the Provisional Unlawful Presence Waiver Program? 

Expanding the Provisional Unlawful Presence Waiver Program requires new or amended regulations. This means the agency must follow the notice-and-comment rulemaking process under the Administrative Procedures Act (APA).

Public notice is issued when a US government agency wishes to add, remove or change a rule or regulation.

On April 2, 2012 — before introducing the Form I-601A in March 2013 –  USCIS published a Notice of Proposed Rule that described the provisional unlawful presence waiver process. After gathering and reviewing public comments, the Homeland Security Department published the final rule on January 3, 2013.

The agency’s discretionary authority to waive the ground of inadmissibility for unlawful presence is based on an immigration statute passed by Congress in 1996. The new regulations did not change the law or the substance of the legal standards. Rather, they changed the process for seeking the unlawful presence waiver when the applicant is in the U.S. and is the spouse, minor child, or parent of a U.S. citizen petitioner.

USCIS Expected to Take Steps to Expand Program 

Compared to the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the expansion of the waiver program stands a better chance of being implemented because it will arise from changes in regulation, not by changes in policy.

The Obama Administration came under fire when it attempted to roll out the expanded DACA and new DAPA by new policies related to the use of deferred action. A Texas-led coalition of 26 states filed a lawsuit challenging the implementation of these programs.  In response, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction stopping the expanded DACA and new DAPA from going into effect. The judge found that the agency should have used the notice-and-comment rulemaking process of the APA, but did not.

In contrast, USCIS was directed to issue new regulations that would expand the waiver program and clarify the factors it considers when determining whether the “extreme hardship” is met.  This means the agency must complete the rulemaking process before it can expand the program.

Although no timeline or deadline has been set, USCIS is expected to issue public notice on the proposed changes. The agency also stated that applications under the expanded program may be filed after it completes the rulemaking process and issues new regulations and guidelines.

If USCIS adopts the proposed changes, a larger pool of immigrant visa applicants will be able to apply for the Provisional Unlawful Presence Waiver before they depart the U.S. for consular processing.  Applicants will also have a better understanding of the factors USCIS considers in deciding whether they meet the extreme hardship standard.

[UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

The grant of a provisional waiver gives applicants some assurance they will be able to return to the United States on immigrant visas, despite being subject to the 3/10 year bar for unlawful presence.

While pre-approval of the “extreme hardship” waiver before departing the U.S. does not guarantee the applicant will receive the visa, it increases the likelihood that they will. It further reduces the uncertainty that comes with consular processing, as well as shorten the time applicants will be separated from family members living in the U.S.

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If you do not qualify for the Form I-601A waiver under the existing regulations, watch out for new regulations expanding the program. Otherwise, you might qualify for the regular Form I-601 waiver, which you can request after you depart the United States and attend your immigrant visa interview at the U.S. Consulate.

Consult an experienced immigration attorney to help you determine whether you are eligible for the Provisional Unlawful Presence Waiver and what information and documents to submit with your application.

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.


Photo by: Black-Powder

Why a Niche Practice is Good for Legal Ethics and Great for Business

The very first ethics rule says lawyers must be competent in matters or fields in which they represent clients.  Rule 1.1 (Competence) requires you to have substantive knowledge of the law and prepare thoroughly for the representation.

Another ethics rule says lawyers must be diligent in representing clients. Rule 1.3 (Diligence) requires you to take lawful and ethical measures to meet your client’s objectives, follow through on potential solutions, and attend to matters in a timely manner.

While general practice lawyers are competent and diligent in most cases, being too much of a generalist can lead to mediocre work, dissatisfied clients, and subpar outcomes.

In contrast, developing a niche practice allows you to focus on specific areas of law and deepen your knowledge and experience in those areas. Having a niche usually leads to more personalized client service and better results for clients.

What is competence? 

ABA Model Rule 1.1, which is wholly adopted in the Minnesota Rules of Professional Conduct, states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Competence can be achieved by reasonable preparation, necessary study, and association with a lawyer of established competence in the field. The lawyer does not need to have “special training or prior experience” to handle a matter competently.

But in some circumstances, expertise in a particular field of law is required. The complexity and specialized nature of a matter is relevant. The lawyer’s general experience, the lawyer’s training and experience in the field, and the preparation and study the lawyer is able to give the matter are also significant.

The lawyer should also keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Developing competence requires focus. And it’s easier to focus when you choose, build and market a niche practice.

What is diligence? 

ABA Model Rule 1.3, which is wholly adopted in the Minnesota Rules of Professional Conduct, states:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Diligence involves pursuing a matter for the client “despite opposition, obstruction, or personal inconvenience to the lawyer” and using lawful and ethical means to achieve a client’s objectives.

Diligence also includes controlling your work load so you handle every matter competently. It also means avoiding procrastination and neglect of client matters. Comment 3 of Rule 1.3 states:

A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

Being diligent requires promptness, responsiveness, and awareness of important details. These qualities are harder to sustain when your attention is scattered across multiple practice areas and a wide range of client matters.

Why is a niche practice good for legal ethics?

When solos and small firm lawyers practice in multiple areas –  immigration, criminal law, estate and wills, and family law, for instance – they can spread themselves too thin. If you try to take on every conceivable client in every possible situation, you normally have less time, capacity and experience to provide competent and diligent representation.  A niche practice helps you to minimize distractions and set your top priorities.

1. You’re better able to keep up with changes and nuances in the law

By focusing on your core competencies, you’re more likely to stay abreast with changes in the law and to understand complex issues. When you have a niche practice, you have more time and interest to read books, law journals, articles, case law, legislation and practice guides, join organizations, attend advanced CLEs, and write and speak about your areas of law. You’re better positioned to know the law inside out, and therefore serve your clients competently and diligently.

If you’re a generalist, you normally have less time and fewer resources to build your knowledge and expertise in specific areas. Your knowledge is more likely to be a mile wide and an inch deep, which affects the level of competence and diligence you bring to client matters.

2. You have more opportunities to develop your expertise

When you establish yourself as an expert in your niche area, you attract more clients with the problems that you solve. You can take your niche practice to the next level by developing sub-specialties in that area. Focusing on subsets can be particularly beneficial when there are plenty of lawyers in your niche.

A niche practice leads to more opportunities to develop your knowledge, skills and experience in your areas of strength and interest. This makes it much easier for you to avoid pitfalls, spot latent but critical issues, and develop creative and viable solutions for your clients.

3. You become more attentive to clients and more focused on client matters

Having a niche practice encourages you to select the clients you want to work with and the types of matters you want to handle.  Being more selective allows you to attend to your ideal clients and to do more meaningful work.

The more familiar you are with the area of law, the more effectively you can deliver the work product, communicate with clients, and provide accurate advice. You know who to call and what resources to use. You are better able to evaluate the strengths and weaknesses in a case, choose the best strategies, overcome obstacles, and make educated guesses about the outcome.

Developing a niche practice not only allows you to be competent, but also to be diligent in attending to client matters. You become more efficient, productive and streamlined in what you do.

Why is a niche practice great for your law firm?

Competence and diligence are basic ingredients of a successful law practice. Limiting your services to certain areas and/or subareas of the law generally leads to deeper expertise, unique experience and higher success rates in client matters. In turn, this increases the odds of your building and sustaining a successful law firm.

1. You find it easier to attract prospects and clients

One of the most rewarding aspects of a niche practice is being the “go-to” person for your particular area of law, industry or geographic area. For example, through education-based marketing to your target audience, you develop your credibility, reputation, and expertise in your niche.

When prospects and clients know what you do and how you can help them, it’s easier to get them to contact you and hire you. Referral sources also have a better sense of what you do and are more comfortable sending potential clients to you.

It is temping to engage in “door law” (i.e. take any case that lands on your desk or accept any client that enters the door) – especially when you’re starting out or trying to grow your practice. But being too much of a generalist often gets in the way of building a sustainable practice.

A niche practice enables you to build a recognizable brand that stands out in the market. If you are consistent and deliberate in targeting your ideal clients with the right messages through the right medium, you are more likely to set yourself up as the expert in your area of practice.

2. You create a better work product for your clients

If you target your ideal clients, instead of take on any client, you will attain deeper fulfillment in your practice.  If you practice in areas that you enjoy the most, you will be more inclined to do the necessary work for better outcomes.

Although over-specialization has risks – such as getting bored, losing out on potential clients, and having your practice tank when the economy shifts, the work dries up, or the law changes – over-generalization frequently carries even greater risks. Having more than one niche area or subarea will help you guard against the risks of limiting your practice too much.

3. You deliver exceptional client service

Practicing multiple areas of law can lead to a lack of focus, which reduces productivity, effectiveness and efficiency. Having too many types of matters to handle requires you to switch frequently from one area to another.  This can leave you feeling scattered and drained. If you spread yourself too think across multiple practice areas, it’s more difficult to wow your clients and get referrals.

By limiting your practice to niche areas in which you excel and thrive, you are more likely to respond promptly to inquiries, meet deadlines, and provide exceptional representation to your clients.


There are some situations where being a general practitioner works well and is a sensible choice.  Effective general practitioners have a broad range of skills, knowledge and experience they can apply across practice areas. Those who live in small towns or rural areas, where there are only a few lawyers, often benefit from being generalists.

But in most cases – unless you have a reliable and well-trained team to which you may delegate duties responsibly- it’s much harder to meet your ethical obligations and run a thriving law firm as a generalist. And even when you have a great team, you – the individual lawyer – still often need a niche practice to truly build your expertise and provide exceptional service.

The advantages and benefits tend to outweigh the trade-offs and risks that come with developing a niche practice. Doing your market research, creating a business plan, and reaching out to your ideal clients are critical for your niche practice to succeed.

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SPECIAL NOTE: Want to learn more about why a niche practice is good for legal ethics and great for business? 

Attend the Minnesota CLE live webcast on May 26, 2015 at 9 am, titled 5 Ethics Mistakes that Solos and Small Law Firms Make (and the Ethical Solutions to Avoid and Overcome Them).

At this 1-hour CLE, I will talk about building a niche practice, creating and implementing systems, offering unbundled legal services and flat fee agreements, and other ethical solutions to address 5 common ethics mistakes.

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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Photo by: Jean-Francois Gornet