Monthly Archives: October 2015

Avoid Ethics and Malpractice Pitfalls With Sound Business Practices

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Law firms must run like a real business to stay open, pay bills, and succeed financially. The lawyers who manage these firms and work in them have business responsibilities, too. Whether you’re a solo practitioner or a managing partner at a big law firm, you have to bill your clients, market your practice, grow your client base, and nurture relationships to thrive in the legal industry. Otherwise, you cannot meet clients’ needs and deliver services on a sustainable basis.

Law students are typically reminded that the practice of law is a profession, not a business. It is indeed a self-regulating profession that is bound by rules of professional conduct. But focusing on the business side of law practice doesn’t weaken professionalism. Rather, having sound business practices strengthens your ability to serve clients ethically and responsibly.

After completing my first year as a solo practitioner at Dyan Williams Law PLLC on October 20, 2015 — as well as  working 10+ years at other law firms — I am more convinced that good business practices go hand in hand with professionalism. The traditional notion that law firms are not businesses is outdated. Although law firms are not ordinary businesses and lawyers are not just business people, ignoring the business side of law practice does not benefit your clients or the legal profession.

Many ethics complaints and malpractice claims are based on issues related to how you manage your firm and practice, instead of on substantive legal errors. Failing to respond promptly to client inquiries, procrastinating, missing deadlines, and over-billing or billing inaccurately are some of the top ethics and malpractice traps.

Here are sound business practices to help you prevent (and defend against) ethics complaints and malpractice claims:

1. Screen your potential clients and accept cases deliberately 

Choosing your clients carefully is the first step to building a strong clientele that appreciates the work you do and will pay you accordingly.

Demanding and difficult clients are hard to please and often the slowest to pay. If a client has gone through several lawyers before they meet with you, be wary. If they unduly blame others without taking any responsibility for their predicament, chances are they will find you wholly at fault for any delays and negative results.

Take cases that really capitalize on your expertise and interest and choose clients you really want to help.  This is not only sound business practice, but will also make it easier for you to comply with Rules 1.1 (Competence) and 1.3 (Diligence) of the Minnesota Rules of Professional Conduct (MRPC).

You can certainly take cases that require more than what you normally bring to the table, but be sure to do the reasonably necessary preparation to meet the clients’ needs. This includes asking for guidance from your colleagues and more experienced attorneys.

Even when a client passes initial screening, there are some situations where continuing to represent the client does not make good business sense and leaves you open to ethics and malpractice pitfalls.

Except as stated in paragraph (c), paragraphs (b)(5) and (b)6) of Rule 1.16 (Declining or Terminating Representation), MPRC, allows lawyers to withdraw from representation when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, or “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.” Be sure to surrender the client’s file and property when your representation is terminated.

2. Keep a written fee agreement that fully describes the fee and scope of services

While business deals can be made verbally, on a handshake, or through a simple “thank you” letter, lawyers have unique obligations when it comes to agreements with clients. New clients and new matters should have a written fee agreement. Having the agreement in writing clarifies the scope of representation, your fee structure, your billing practices, and the out-of-pocket charges the client needs to pay. A written fee agreement also helps set clear expectations on both sides.

Make sure your clients can pay your legal fee, unless you want to end up with “forced” pro bono work.  Ask for an initial/advanced payment or retainer fee before you begin to work. Let the client know this payment is refundable if the work is not performed. Rule 1.5 , MRPC allows for advanced payments as long as they are agreed to in writing by the client and they are subject to refund.

3. Compete on value 

Rule 1.15(a), MRPC, states the following are relevant factors in determining whether the attorney’s fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Charge reasonable fees, not rock-bottom fees. Set your fees based mostly on the value you bring, instead of what you think the client can pay. Low billing rates don’t necessarily attract more clients. Competing on price often results in less profitable work, additional stress, and the need to take on a huge volume of cases to make up for the financial loss. While many clients will shop around for the lowest fees, you are better off with clients who choose their lawyers based on the value they bring. These clients are more likely to stay with you and refer others to you.

4. Implement effective billing and collections practices

Fee disputes and collections suits to recover on delinquent accounts are a driving factor behind many ethics complaints and malpractice claims. To avoid this ethics and malpractice trap, you need to have effective billing and collections policies in place. Mistakes — such as double-billing for duplicative work, charging clients for filing fees that have already been paid, inconsistent invoicing, and failing to clearly describe the work performed — leads to client mistrust. Accurate billing and timely collections will reduce financial problems down the line and enhance your relationship with the client.

Avoid suing a client just because you believe you deserve to get paid for the work you did and the results you delivered. Consider whether the client has the ability to pay and whether the amount owed is worth the hassle of trying to collect it.

5. Communicate regularly and respond promptly

Rule 1.4 (a), MRPC, requires you to promptly inform the client of key decisions and circumstances and obtain informed consent; reasonably consult with the client about means to accomplish objectives; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information. These ethics rules are also sound business practices.

Respond to your clients’ voice mails and emails within 24 hours, unless there are extenuating circumstances, such as your being ill or on vacation. Have a back-up plan for those circumstances. Even if you don’t have an immediate answer, let clients know you received their message and will follow up within a certain time frame. At the very least, inform your clients about your communications policy, such as your office hours and when and how they can expect a response from you.

Send your clients copies of all filings, correspondences and other materials relating to their matter.  This is a convenient way to keep them reasonably informed about the status of their case. Regular and prompt communication is not only ethical, but is also a good business policy that increases client loyalty and satisfaction.

6. Set up systems to handle client matters and run your firm

Systematizing your  law practice helps you provide high-quality service and effective representation to your clients. Systems are clearly defined, step-by-step plans, procedures, processes and policies to complete routine tasks and address common issues.

Documenting your processes and policies, as well as systematizing repetitive tasks, can help you streamline your practice and create more consistent, high-quality results (no matter how heavy your work load).

Systematization doesn’t mean you provide cookie-cutter solutions or drop the uniqueness of your brand. Rather, they help you automate routine activities and daily operations so your firm runs like a business instead of just as a practice that depends completely on you.

Two key systems that allow you to run your firm effectively and avoid ethics and malpractice traps are:

  •  Calendaring, scheduling and tickler system. e.g. recording important hearings and meetings and setting reminders for due dates and deadlines.
  • Client file management system. e.g. providing steps for running conflicts checks, opening new client files, closing files, and destroying old files.

Setting up systems can be a time-consuming, costly activity. When you’re busy, it can seem a like a low priority. But having systems in place is key to operating your law firm like a real business and meeting your obligations to clients.

7. Find the best, workable solution for the client

Although law firms are businesses, your responsibilities as a lawyer should always trump your roles as a business person. While filing a meritorious lawsuit is probably more lucrative than using informal channels, lawyers need to consider the best interest of the client. As professionals, lawyers also have a duty to avoid overburdening the courts and clogging up the judicial system.

In immigration practice, for instance, a lawyer should consider negotiating an agreement with the immigration authorities that will meet the client’s objectives, instead of filing a federal lawsuit to make case law (and more money). While using cost-effective methods to gain desired results  might not bring you fame and glory, it will enhance your reputation and add to the bottom line in the long run.

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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, which are subject to change. 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:  Kevin Harber

I-212 Waiver + Diversity Immigrant Visa = A True Success Story

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On October 20, 2015, Dyan Williams Law PLLC celebrated its first-year anniversary and I celebrated the end of my first year as a solo practitioner. It’s been a wonderful journey. Although the prior 10+ years I spent at other law firms were rewarding, my 1 year at Dyan Williams Law proved to be much more. I  enjoy every single day of operating my own law firm, doing phenomenal work, and serving an excellent group of clients.

Our first year came to a close with most of our immigration cases approved and none denied. Others are in the works or are pending with the immigration agencies. One true success story involved USCIS’ expedited approval of a Form I-212 waiver request for a very deserving client.

Our client – an Immigrant Visa applicant – was unable to obtain his 2015 Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the diversity visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver.  He was unaware that he needed the waiver until the U.S. Consulate informed him.

Two years ago, he presented his visitor’s visa at an international airport to gain entry into the U.S. Instead of admitting him, the U.S. Customs & Border Protection placed him in secondary inspection and questioned him about his prior visits. After he admitted to previously working in the U.S. without proper authorization, he was summarily removed from the U.S. and sent back immediately to his home country.  His visitor visa was revoked and he was barred from re-entering the U.S. for five years, up until 2018.

The cut-off date to receive the 2015 Diversity Visa was September 30, the end of the DV Lottery fiscal year. Because he had only four months to obtain the visa when he contacted me in May about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.

I first had to review the Notice of Expedited Removal Order to determine why exactly he needed the waiver. Fortunately, he was not charged with fraud or willful misrepresentation to gain entry into the U.S. Had this been the case, he would have needed a separate I-601 waiver, for which he was not eligible.

In particular, for I-601 purposes, he did not have a qualifying relative (U.S. citizen spouse or parent who would suffer extreme hardship if he were not admitted to the U.S.) Although his wife received her Diversity Visa, she first had to land in the U.S. and be admitted to the country to become a permanent resident. And he had to accompany her to the United States on his Diversity Visa at the same time to become a permanent resident.

I next had to learn about all the relevant details, including the unusual hardships he and his family would suffer if he were not admitted to the U.S., his work experience and professional qualifications, and the harsh conditions in his home country. I further counseled him on the documentary evidence he should provide to support his waiver request. I also researched and gathered additional reports and articles on the terrible conditions in his home country.

It took him about one month to collect and provide all the required information and documents needed for the I-212 waiver. On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, (mistakenly) transferred the application to the Nebraska Service Center (NSC), where the I-212 sat for about two months for “administrative processing.” This unnecessary transfer added to the processing time. On August 20, NSC sent the case back to the Boston Field Office for a decision.

To support the I-212 waiver application, I presented a thorough legal brief describing how the positive factors outweighed the negative factors, and why my client deserved the waiver as a matter of discretion, under the law. I also provided compelling reasons for expedited processing (i.e. adjudication of the I-212 waiver application within 3 months). I argued that an emergency situation, humanitarian reasons, and subsequently, USCIS error and/or compelling interest of USCIS, existed to satisfy the criteria for an expedited decision.

After I submitted multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, the USCIS adjudications officer in Boston made a personal telephone call to me on September 23. He informed me that I had presented a compelling case and he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa). He faxed the approval notice to the U.S. Consulate and emailed me a copy.

I then advised my client to immediately contact the U.S. Consulate for a diversity visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.

The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).

This client and I communicated only by email. He decided to hire me after his friend in the U.S. completed a Skype consultation with me and became convinced that I was the best attorney for his case. Despite our never meeting in person, we formed a trust-based relationship and collaborative partnership that contributed to a successful and timely outcome.

So far, the expedited approval of the I-212 waiver application in this Diversity Visa case is one of my most memorable, true success stories, since I established Dyan Williams Law PLLC.  I look forward to doing more great work and helping more clients study, work and live lawfully in the United States, reunite with their American families, and become U.S. citizens.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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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: Juan Antonio Capó Alonso

What should you do to get your I-212 Waiver?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. Having an aggravated felony conviction further subjects you to a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

When any of these inadmissibility bars apply to you, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant.

What Must I Submit When Requesting an I-212 Waiver?

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

The Form I-212 instructions also include a list of supporting documents you must submit with your waiver request.

There is no specific statutory standards to be met. Applications are considered on a case-by-case basis, and ALL relevant factors are considered. The approval of the I-212 application is at the agency’s discretion, which means the adjudicator will weigh the favorable and unfavorable factors in making a decision.

To obtain the I-212 waiver, you must establish the favorable factors outweigh the unfavorable factors.

Favorable factors include:

  • Close family ties in the U.S.
  • Unusual hardship to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer in the U.S.
  • Your family responsibilities or intent to hold family responsibilities.
  • Length of lawful presence in the U.S. and the status you held during that presence.
  • Your respect for law and order.
  • Your good moral character, such as lack of criminal history.
  • Reformation and rehabilitation that make it unlikely the problem will occur again (e.g. repeated criminal activity that resulted in your deportation).
  • Eligibility for a waiver of other inadmissibility grounds.
  • The need for your services in the U.S.
  • Absence of significant undesirable or negative factors.
  • Likelihood that you will become a permanent resident in the near future.
  • Considerable passage of time since you were deported.

Unfavorable factors include:

  • Lack of close family ties or hardships.
  • Serious or repeated violations of immigration laws or willful disregard of other laws.
  • Bad moral character, including criminal history.
  • Likelihood that you will seek U.S. welfare or become a public charge.
  • Poor physical or mental condition (unless there is a need for treatment in the U.S., which would be a favorable factor).
  • Unauthorized employment in the U.S.
  • Your admission would be contrary to the welfare, safety, or security of the U.S.
  • Recent deportation.

Personal declarations from you or legal arguments from your lawyer are not enough. You must provide objective and credible evidence, including:

  • Affidavits from third parties attesting to unusual hardships, your good moral character, and other positive factors.
  • Evidence of family ties in the U.S., such as birth certificates and marriage certificates.
  • Medical reports, psychological evaluations, and other records showing unusual hardships to you, your relatives, or others if you are not admitted to the U.S.
  • Evidence of the financial, emotional and psychological impact of family separation.
  • Police clearance reports showing you lack a criminal history.
  • Evidence of rehabilitation and reformation, if you have prior criminal convictions.
  • Employment records and other evidence of your professional qualifications and work experience.
  • Articles and reports on the conditions of the country where you and your family would live if you were not admitted to the U.S.

Generally, your I-212 is more likely to be granted if you are the beneficiary of an approved family or employment-based petition or you are otherwise eligible for a visa,  you have only one removal order, you lack a criminal record, you did not commit serious and repeated immigration violations, and you demonstrate unusual hardships to your family or employer in the U.S. if you are not admitted.

Does Hiring an Immigration Attorney Make a Difference? 

You may file the Form I-212 application on your own. But hiring an experienced, skilled and diligent lawyer provides several advantages, such as:

1.  Avoiding unnecessary expenses and delays. The  immigration lawyer can help you determine whether you need an I-212 waiver in the first place. You might not actually need an I-212 waiver for various reasons, including:

  • The 5, 10 or 20 year bar under INA section 212(a)(9)(A) has expired.
  • You were allowed to withdraw your application for admission at the U.S. port of entry or border and you departed the U.S. within the time specified.
  • You were stopped and refused admission at the U.S. port of entry or border, but no expedited removal order was issued.
  • You were refused admission as an applicant under the Visa Waiver Program.
  • You were paroled into the United States after you accrued more than one year of unlawful presence in the U.S. and left, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 3-year/10-year unlawful presence bar and require a separate Form I-601 waiver.]
  • You were paroled into the United States after you were ordered removed from the U.S, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 5, 10, or 20-year bar under INA section 212(a)(9)(A) and require a Form I-212 for that bar.]
  • You received voluntary departure from an immigration court and you departed the U.S. during the voluntary departure period.
  • You are applying for I-485 adjustment of status as a U nonimmigrant.

The immigration lawyer also helps ensure that your I-212 waiver application is filled out completely and filed properly with the right immigration agency.  Without a lawyer’s guidance, it can be easy to overlook critical questions and difficult to determine  where you should submit your I-212 application. The lawyer can prevent unnecessary delays, including rejection notices.

2. Determining whether you are inadmissible on other grounds and whether these grounds can be waived or not.  The immigration lawyer will review the immigration court records (including Notice to Appear in Removal Proceedings and court order) or Customs & Border Protection records (including Notice of Expedited Removal) to determine the reasons for your removal and the duration of the bar.

A lawyer can verify  whether you need an I-601 waiver (for immigrant visa) or an I-192 waiver/INA section 212(d)(3)(A)(ii) waiver (for nonimmigrant visa) as well. While the I-212 covers grounds of inadmissibility under INA sections 212(a)(9)(A) or (C), the I-601 waiver or 212(d)(3)(A) waiver is necessary for other grounds, such as immigration fraud and misrepresentation, the 3-year/10-year bar due to previous unlawful presence in the U.S., health conditions, and criminal convictions.

While eligibility requirements for the 212(d)(3)(A) are relatively flexible, they are strict for the I-601 waiver.  Unlike 212(d)(3)(A) waiver applicants, I-601 waiver applicants must have a qualifying relative (e.g. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if they are not admitted to the U.S.

In addition, a lawyer can advise you on whether you are inadmissible for reasons that cannot be waived at all. These include a determination that you made a false claims to U.S. citizenship, a ruling that you filed a frivolous asylum application, a drug conviction after age 18 (except if it was for simple possession of less than 30 grams of marijuana for personal use), and a finding that you entered into a sham marriage to a U.S. citizen for immigration purposes.

3. Increasing the likelihood that your waiver application will be decided favorably (and in some cases, expeditiously). 

An attentive lawyer will strive to understand the full details of your case, including your family responsibilities; the hardships you, your family and/or employer would suffer if you are not admitted to the U.S.; your professional qualifications; and the conditions in your home country.

A skilled and experienced lawyer will advise you on the documentary evidence and written testimonials you must submit to support your waiver request. He or she will also present a legal brief describing how the positive factors outweigh the negative factors and why you deserve the waiver as a matter of discretion, under the law.

A diligent lawyer will also do any necessary follow-ups to obtain an approval, and request expedited processing when appropriate.

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To present the strongest I-212 waiver request you need to do more than just submit the form and documents listed in the instructions.  True success in getting an I-212 waiver grant is more likely when you have experienced counsel.

Consult an immigration attorney at least once and, preferably, hire a reputable one to help you prepare an approvable I-212 application.

For more information on the inadmissibility grounds that require an I-212 waiver, the limitations of the waiver, and when and where you may file for it, read our related article, When do you need an I-212 Waiver (and how do you get it)?

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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: Billie

When do you need an I-212 Waiver (and how do you get it)?

iron gateIf you have been removed from the U.S., you are barred from reentering the country for a set number of years or perhaps permanently, depending on why you were removed. Illegal (or attempted illegal) reentries to the U.S., in certain situations, also make you permanently inadmissible. To be admitted to the U.S. while the bar still applies, you must file for and obtain an I-212 waiver or Consent to Reapply.

When Do I Need an I-212 Waiver?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. An aggravated felony conviction, however, creates a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act further state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

If you are subject to the 5, 10 or 20 year-bar, you do not need the I-212 waiver if you wait outside the U.S. for the duration of the bar before you seek admission to the U.S. But if you wish to lawfully reenter the U.S. before the time bar expires, you must obtain an I-212 waiver.  And when a permanent bar applies to you, you will forever be required to obtain an I-212 waiver.

An approved Consent to Reapply or Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, is valid indefinitely, as long as it is not revoked by the agency that issued the approval. You may use the waiver grant for any future immigrant or nonimmigrant purposes, as long as you do not incur new inadmissibility under INA section 212(a)(9)(A) or (C) that requires you to file a new application.

Returning unlawfully to the U.S. without the consent to reapply may lead to serious consequences, including reinstatement of your removal order, prosecution in criminal court, and a permanent bar from admission to the U.S. (that requires you to wait outside the U.S. for 10 years before you may apply for the waiver).

Five-Year Bar

You have a five-year bar on reentry from the date of your removal if:

  • You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry. [INA section 212(a)(9)(A)(i)]
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien. [INA section 212(a)(9)(A)(i)]

Ten-Year Bar

You have a 10-year bar on reentry from the date of your removal if:

  • You were ordered removed, other than as an arriving alien, including by an immigration judge in removal proceedings. [INA section 212(a)(9)(A)(ii)]
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to removal order.  [INA section 212(a)(9)(A)(ii)]
  • You departed the U.S. willingly, but before removal proceedings were concluded.  [INA section 212(a)(9)(A)(ii)]
  • You left the U.S. while a removal order was outstanding.  [INA section 212(a)(9)(A)(ii)]

Twenty-Year Bar

You have a 20-year bar on reentry from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not.  [INA section 212(a)(9)(A)(ii)]

Permanent Bar

You have a permanent bar on reentry from the date of your removal if:

  • You were convicted of an aggravated felony.  [INA section 212(a)(9)(A)(ii)].
  • You reentered or attempted to reenter the U.S. illegally after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S. [INA section 212(a)(9)(C)].

Key Things to Know About the Permanent Bar

Permanent Bar Under INA section 212(a)(9)(A)(ii)

The permanent bar, due to an aggravated felony conviction, applies even if you were not removed because of this conviction or you were convicted of the aggravated felony after being removed from the U.S.

Permanent Bar Under INA section 212(a)(9)(C)(i)(I) and (II)

The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10 year unlawful presence bar under INA 212(a)(9)(B), there are no exceptions for minors and asylees when it comes to the permanent bar. So if you were under 18 when your parent took you to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

If you are subject to the permanent bar and seek an immigrant visa, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212. Based on 2006-2007 Board of Immigration Appeals case law and 2009 USCIS policy, an I-212 application for waiver of this permanent bar cannot be approved unless you are outside the U.S. and at least 10 years have elapsed from your date of departure.

NOTE TO I-360 VAWA SELF-PETITIONERS: If you are a VAWA self-petitioner, you do not have to wait outside the U.S. for 10 years to apply for a separate waiver of the INA 212(a)(9)(C) inadmissibility ground. But you must establish a connection between (i) your battering or subjection to extreme cruelty at the hands of your U.S. citizen or permanent resident spouse and (ii) your removal, departure from the United States, or illegal re-entry into the U.S.

NOTE TO NONIMMIGRANTS:  As an alternative, you may seek an INA section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole. The 212(d)(3) waiver is only for nonimmigrants and does not overcome the permanent bar for immigrant visa applicants. You also have to qualify and apply for the nonimmigrant visa itself.

What are the Limitations of the I-212 Waiver or Consent to Reapply?

The I-212 waiver pr Consent to Reapply only gives you permission to apply for admission with an immigrant visa or nonimmigrant visa, through the Visa Waiver Program (VWP), or by adjustment of status (if you are physically present in the U.S.) The waiver alone is not enough to gain lawful admission to the U.S.

If your waiver is granted, your prior visa status is not restored. Instead, you merely have permission to apply for a new visa. For example, if you previously had lawful permanent residence based on marriage to a U.S. citizen, but were removed from the U.S., you must seek a new immigrant visa after the I-212 waiver is granted. If you are now divorced, you will no longer qualify for the immigrant visa based on the same marriage. You may, however, use the I-212 waiver to apply for a visa on another basis.

The I-212 waiver is also not enough if you have other grounds of inadmissibility for which there is no waiver or for which there is a waiver, but you do not qualify.

For instance, fraud or willful misrepresentation of material fact to gain immigration benefits, under INA 212(a)(6)(C)(i), and certain crime-related grounds under INA 212(a)(2) make you permanently inadmissible. An I-601 [INA § 212(i)] waiver is available to overcome the fraud/willful misrepresentation bar when you have a qualifying relative who will suffer extreme hardship if you are not admitted to the U.S. An I-601 [INA § 212(h)] waiver is available to some foreign nationals for some criminal grounds.

Where Do I File My Form I-212 Application?

Whether you are in the U.S. or abroad, the reasons you were deported, the type of visa you intend to use to enter the U.S.,  whether you also need an I-601 waiver, and other factors determine where you file your I-212 application or Consent to Reapply.

There are various potential filing locations, including the U.S. Consulate that will issue the visa if the waiver is granted; the  U.S. Citizenship and Immigration Services (USCIS) Field Office having jurisdiction over the place of the original removal proceedings; the U.S. Customs and Border Protection (CBP); and the Executive Office for Immigration Review (EOIR). The direct filing addresses for the I-212 are currently posted on the USCIS website.

The current application procedures, which are subject to change, include the following: 

Immigrant visa applicants who also need a concurrent Form I-601 waiver: file Forms I-212 and I-601 concurrently with the USCIS Phoenix Lockbox, which will forward your applications to the Nebraska Service Center.

Immigrant visa applicants who do not require a Form I-601 waiver: file Form I-212 with the USCIS field office having jurisdiction over the place where your removal proceedings were held. The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.

Nonimmigrant visa applicants (other than K, T, U, or V visa applicants): file the request for Consent to Reapply with the U.S Consulate with jurisdiction over your nonimmigrant visa application.  The consular officer must then forward a recommendation for consent to reapply for admission and visa issuance to the CBP/Admissibility Review Office (ARO) for a decision.

Nonimmigrants at a U.S. port of entry who are not required to obtain nonimmigrant visas: file Form I-212 in person at a CBP-designated port of entry or a CBP-designated preclearance office, which will then forward it to the CBP/ARO for adjudication.

Adjustment of status applicants who are physically present in the U.S. and are inadmissible only under INA section 212(a)(9)(A): file Form I-212 with the USCIS office having jurisdiction over the Form I-485 adjustment of status application, which will adjudicate both applications.

 

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Applying for an I-212 waiver or Consent to Reapply involves more than just submitting the form and documents listed in the instructions.  True success in obtaining an I-212 waiver is more likely when you have experienced counsel.

When you need the I-212 waiver to reenter the U.S., consult an immigration attorney at least once and, preferably, hire a reputable one to guide you through the process from start to finish.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you to get your I-212 Waiver? 

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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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Responding to Requests for Client Files: Do’s and Don’ts

Lawyers might think they “own” their clients and their clients’ files. But clients are always free to fire their lawyers and get new counsel. And the file – at least the most critical parts – belong to the client.

Failure to promptly hand over the file to the departing client or to his new counsel is a strong basis for an ethics complaint and a common reason for disciplinary action.

What are the Minnesota rules on releasing client files? 

Rules 1.16(d) (Declining or Terminating Representation) and 1.15(c)(4) (Safekeeping Property), Minnesota Rules of Professional Conduct (MRPC), require lawyers to return client files upon the client’s request.

In 2005, Rules 1.16(e), (f) and (g) were added to the MRPC, which basically incorporated Lawyers Board Opinions 11 (repealed) and 13 (amended). Rule 1.16(e) describes which papers and property belong to the client and must be surrendered as the client’s file. Rule 1.16(f) states that lawyers may charge for reasonable costs of duplicating or retrieving the client file, after termination of the representation, but only if the client agreed at the outset, in writing,  to such a charge. Rule 1.16(g) prohibits lawyers from conditioning the return of the client file on payment of the lawyer’s fee or the cost of copying the files or papers.

What does the ABA have to say about releasing client files?

In July 2015, the American Bar Association (ABA) provided further guidance on the return of client files in Formal Opinion 471, Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled.  The ABA noted that the lawyer must, at a minimum, turn over materials that would likely harm the client’s interest if not provided.

Applying Model Rule 1.15, the ABA determined that the lawyer must return all property that came into his possession in connection with the representation. This includes tangible personal property; items with intrinsic value or that affect valuable rights, such as securities, negotiable instruments, wills, or deeds; and any documents provided by the client.

Applying Model Rule 1.16(d), the ABA determined that the lawyer must surrender any materials provided by the client; legal documents filed with a tribunal (or those completed and ready to be filed); executed instruments like contracts; orders or other records of a tribunal; correspondence in connection with the representation (including emails retained according to the lawyer’s document retention policy); discovery or evidentiary exhibits (including interrogatories and their answers, deposition transcripts, expert witness reports and witness statements, and exhibits); legal opinions issued at the client’s request; and third-party evaluations or records paid for by the client.

The ABA stated it is unlikely the client is entitled to papers or property that the lawyer generated for internal use primarily for the lawyer’s own purpose in working on the matter. Thus, the ABA determined the  lawyer need not provide drafts or mark-ups of documents to be filed with a tribunal; internal research memos and materials; a general assessment of the client or the client’s matter; internal conflict checks; personal notes, billing statements; and documents that might reveal other client confidences.  The ABA added, however, that internal notes and memos, for which no final product emerged, may have to be disclosed if this would avoid harming the client’s interests. An example is the most recent draft of a document and the supporting research to help meet an imminent filing deadline.

In a September 2015 Bench & Bar of Minnesota article, the Director of the Office of Lawyers Professional Responsibility, Martin Cole, commented on the recent ABA opinion. He stated Minnesota has a long-standing rule on what constitutes papers and property belonging to the client, and Minnesota normally follows ABA guidance, absent good cause.

Lawyers who are terminated from representation or withdraw from representation must protect the client’s interest by surrendering papers and property that belong to the client. Although the ABA Model Rules and Formal Opinions provide guidance, the state rules of professional conduct are what governs.

There are things to do and things to not do when surrendering client files and responding to requests for client files:

DO’S

1. Determine exactly what you must provide to the client 

Upon termination of representation or upon receiving a request for a client file from the client or an authorized third party, the lawyer must review Rule 1.16(e), MRPC. It provides a detailed list of what lawyers must hand over to the client in all representations, pending claims or litigation representations, and nonlitigation or transactional representations. The rule also describes what does not constitute client files, papers and property.

Rule 1.16(e) states  “Papers and property to which the client is entitled [upon termination of representation] include the following, whether stored electronically or otherwise:

(1) in all representations, the papers and property delivered to the lawyer by or on behalf of the client and the papers and property for which the client has paid the lawyer’s fees and reimbursed the lawyer’s costs;

(2) in pending claims or litigation representations:

(i) all pleadings, motions, discovery, memoranda, correspondence and other litigation materials which have been drafted and served or filed, regardless of whether the client has paid the lawyer for drafting and serving the document(s), but shall not include pleadings, discovery, motion papers, memoranda and correspondence which have been drafted, but not served or filed if the client has not paid the lawyer’s fee for drafting or creating the documents; and

(ii) all items for which the lawyer has agreed to advance costs and expenses regardless of whether the client has reimbursed the lawyer for the costs and expenses including depositions, expert opinions and statements, business records, witness statements, and other materials that may have evidentiary value;

(3) in nonlitigation or transactional representations, client files, papers, and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyer’s fee for drafting the document(s).

Like the ABA’s Formal Opinion 471, the Minnesota rule states that papers and property submitted to the lawyer by the client must be returned to the client. The Minnesota rule further requires any papers and property for which the client has already paid the lawyer’s legal fees or reimbursed the lawyer’s costs to be surrendered. In its recent Opinion, the ABA presumes that all fees were paid, but still allows withholding some documents.

Although lawyers retain billing and collection rights, they must hand over documents that have been served or filed in litigation matters, as well as items for which they agreed to advance costs and payments – even if the client has not paid for the work or items. In transactional matters, lawyers have a bit more leeway in withholding documents. While all work already paid for must be released, unexecuted documents that have no legal effect may be withheld if the client has not paid for the work.

2. Surrender the client file promptly

Rule 1.15(c)(4), MRPC, states a lawyer shall “promptly…deliver to the client or third person as requested…properties in the possession of the lawyer which the client or third person is entitled to receive.”

Rule 1.16(d), MRPC states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as…surrendering papers and property to which the client is entitled…”

Rule 1.(4)(a)(4), MRPC, further requires the lawyer to “promptly comply with reasonable requests for information.”

Delays in surrendering the client file can and often do harm the client’s interests, especially when there is an imminent deadline or statute of limitations to meet. Responding promptly to requests for client files should be a top priority for the lawyer and his firm.

The state ethics rules do not require a hard copy transmission of client files. Lawyers Professional Responsibility Board Opinion 19 states a lawyer may use technological means such as email, without encryption, to transmit confidential client information without violating Rule 1.6, MRPC.

Using cloud computing software, such as Dropbox, to transmit client files is also not prohibited specifically. In general, cloud computing refers to data that is provided over the Internet and stored on servers owned by a third party, rather than installed on the user’s computer or server. Many states have issued cloud ethics opinions that permit the use of such technology to store and transfer client files, as long as reasonable care is taken and certain conditions are met.

Lawyers — particularly those who run paperless or mobile offices — may release the file electronically to the client in the interest of expediency. Of course, original documents belonging to the client must be returned.

3.  Obtain a written agreement from clients, at the outset, authorizing you to charge for duplicating or retrieving client files upon termination of representation (if you do not want to bear such costs)

Lawyers may charge a client for the reasonable costs of duplicating or retrieving the client’s file only if they had a written fee agreement, at the outset, allowing such a charge. Billing the client for such costs, without prior written authorization from the client, violates Rule 1.16(f).

The Minnesota Supreme Court has stated that when an attorney copies the client file at the termination of representation, the copy is really for the attorney’s benefit (for example, to defend against malpractice claims or ethics complaints). If there is no written agreement authorizing the charge, lawyers must surrender all items belonging to the client without cost.

Lawyers are not required to duplicate the files upon release to the departing client. Keeping at least an electronic copy, however, is a good, protective measure.  And if the firm hands over the file without retaining any copy, it is especially important to obtain written acknowledgment from the ex-client or new counsel confirming receipt of the file. An inventory list of the items surrendered should also be kept.

4. Keep a systematic file retention policy and notify your clients about it

Rule 1.15 (c) obligates lawyers to maintain complete records of all properties of a client coming into the lawyer’s possession and promptly surrender to the client, as requested, the properties to which the client is entitled. Rule 1.16 requires lawyers, upon termination of representation, to surrender all property to which the client is entitled. But as former Director of OLPR, Kenneth L. Jorgenson stated in a Bench & Bar article, “Neither of these rules, however, provides any guidance or insight about the duration of the obligation to return client property or whether it is ever appropriate to dispose of client files.”

Advances in technology and electronic storage make it possible to retain client files indefinitely. But such a conservative file retention policy is not required by the ethics rules.

Jorgenson notes that retention periods for client files must meet or slightly exceed a client’s reasonable anticipated needs for the file.  Relevant factors include statutes of limitations or deadlines relating to the file, tax laws and other regulations applicable to the client, and whether the file includes original documents that are intrinsically valuable (e.g., stocks, bonds, notes, deeds, wills and trusts).

Lawyers should also consider their  own need for the file in the event of a malpractice claim. Work with your malpractice carrier to create and implement a file retention policy.

Jorgenson advises lawyers to separate client originals from the file and return them to the client at the end of representation, or if necessary, retain them when the rest of the file is destroyed. The lawyer should provide notice of the retention policy at the outset in a retainer agreement and/or at the end of representation in a closing letter.  Jorgenson adds, “Client notice of the firm’s file retention period may render client demand for documents after expiration of the retention period unreasonable, or at least less reasonable.”

DON’TS

1.  Refrain from hanging on to documents you may keep if this serves a trivial purpose 

Holding back parts of the file to which the client is not entitled – out of spite or for no substantial purpose – can make a bad situation worse.  Even upon termination of representation, a lawyer shall take reasonable steps to protect the client’s interest.

Lawyers may choose to hand over the entire file to the client, even if they can withhold certain parts under the state rules. Unless full release would disclose other client confidences, reveal competitive business strategies, violate a court order, or harm a lawyer’s professional interest, it is generally better to provide all documents to help the client.

In his September 2015 article, OLPR Director Cole noted:

Minnesota does not in its rule otherwise distinguish intermediate drafts of documents from final products, as the ABA opinion spends time doing. Minnesota has not stated that such drafts are somehow documents to which a client is not entitled, so it would seem that they may be. Many lawyers may not historically have retained drafts of pleadings, research memos, etc., but in today’s electronic world, perhaps they are retained and may contain valuable tracking information about changes made. Maybe this will be an area in which the new ABA opinion can influence Minnesota’s rules.

2. No holding the client file hostage to secure payment

The ABA Model Rule 1.16 (d) states that in surrendering papers and property to which the client is entitled, “[t]he lawyer may retain papers relating to the client to the extent permitted by other law.” The phrase “other law” generally refers to a common law retaining lien or other law permitting the lawyer to retain a file as security for a fee.  State rules, however, trump the Model Rules.

While some states like South Dakota, Massachusetts, Georgia and Vermont follow the Model Rule and allow retaining liens in general, others such as North Dakota and Minnesota forbid them entirely.

North Dakota Rule 1.19 states  “[a] lawyer shall not assert a retaining lien against a client’s files, papers, or property[,]” including electronically-stored items.

In Minnesota, Rule 1.16(g), MRPC, forbids lawyers from conditioning the return of client papers and property on payment of the lawyer’s fee or the cost of copying or retrieving the file. Even when a lawyer has a written agreement authorizing charges for copying or retrieving the file, he may not withhold the client file to secure payment of those costs or legal fees owed.

Rule 1.16(e), MRPC, does allow lawyers to withhold certain items that have not been paid for. But lawyers cannot keep documents that belong to the client and must be surrendered to the client, while awaiting payment for those documents.

Lawyers whose state rules allow retaining liens should carefully consider whether to exercise this right. Withholding client files to secure payment — regardless of whether you have such a right — could harm the firm’s reputation, conflict with your professional values, fuel public mistrust, and interfere with your ethical obligations not to prejudice the client’s interest.

3. Stop using client communication & correspondences during representation as an excuse to not surrender the client file

Lawyers might resist releasing a client file when they have previously provided the client with copies of documents, correspondences, etc. during representation. Rule 1.4(a)(3), MRPC, states a lawyer shall “keep the client reasonably informed about the status of the matter.”

In its Formal Opinion 471, the ABA  encourages lawyers to regularly provide clients with information and copies of documents during the course of representation and encourages lawyers to advise clients to maintain these documents. This helps to comply with Rule 1.4. But the ABA added, “The fact that copies of certain materials may have been previously provided to a client is not dispositive of whether the lawyer must also provide such materials at the termination of a representation.”

The Office of Lawyers Professional Responsibility takes a similar approach.  A lawyer is not relieved of his duty to surrender client property by claiming the client previously received copies of pleadings and other items during representation. This is part of client communication and reduces the likelihood that the client will request the file at the end of representation. But the client cannot be forced to maintain a copy of the file.

4. Avoid careless loss and premature destruction of valuable documents in the client file

Although the ethics rules do not, per se, require permanent storage of client files, lawyers ought to safeguard their client’s property under Rule 1.15  Sloppy maintenance of client files will make it much harder for you to surrender them upon request.

Keep your file management and retention system well-organized, secure, and properly labeled to allow easy retrieval. You should not destroy a client file without proper notice to the client and without providing an opportunity to take the file before the retention period ends. A client can be harmed substantially if the firm loses or destroys documents that are not otherwise readily available to the client.

Conclusion

A lawyer’s failure to return papers and property belonging to the client is a common basis for ethics complaints. The Minnesota Supreme Court has rendered public discipline when the failure to return a client file is part of a pattern of misconduct. Withholding the client file to secure payment of fees or costs may also lead to discipline, even when no other misconduct is involved.

Practicing the Do’s and Don’ts in releasing client files and responding to such requests will help you avoid ethics complaints and malpractice claims, as well as protect your reputation and your (ex) clients’ interests.

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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, which are subject to change. 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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