Monthly Archives: November 2015

Saying Thanks on Thanksgiving Day

In the United States, we celebrate Thanksgiving today (November 26). In the spirit of this holiday, I’d like to express my gratitude for your connecting with me as a current client, a prospective client, a past client, a referral source, or a friend of Dyan Williams Law PLLC, or a reader of our blog, The Legal Immigrant.

No one wants to talk to a lawyer about their problems. But eventually, most people end up needing to consult with a lawyer.

Foreign nationals who seek to immigrate to the U.S., study or work temporarily in the U.S., or become naturalized U.S. citizens usually need a trusted immigration lawyer to help them figure out the process. A full-on Do-It-Yourself (DIY) approach often gets you into trouble when it comes to navigating the U.S. immigration system. The immigration process is governed by complex laws, changes constantly, and is riddled with confusion and uncertainty.

When prospects call me on the telephone, send me an email, or submit an online inquiry to discuss their case, I strive to make our communication not only comfortable, but also surprisingly pleasant. I speak in layman’s terms they can understand, instead of use legal jargon that is meaningless to them. I ask clarifying questions to understand where they want to go with their case. I provide insightful information to steer them in the right direction.

To give prospects a sense of what it’s like to work with me, I offer a complimentary case evaluation by telephone (and sometimes by email). This involves addressing general concerns and questions about their case. I also write articles and post them on my blog, The Legal Immigrant; participate in a legal Q&A forum that deals with tough immigration issues; and speak to small and large groups on hot immigration topics.

When offering specific and detailed guidance to potential clients, I charge a consultation fee. Why? Two reasons: First, I want to avoid tire kickers who have no intention of working with me, but simply want free advice. Second, I offer tremendous value in the consultation that is worth much more than the fee. When a person is willing to pay the consultation fee, this shows there is some understanding of the value I bring. The consultation is typically the first step to creating a trust-based relationship that makes a huge difference to my clients and their families.

Your contacting me about your case, hiring me as your attorney, or referring others to me is key to having a successful law firm that serves the community well. I appreciate your support and our connection, not just on Thanksgiving Day, but every day.

May you and your family and friends experience joy and gratitude on Thanksgiving Day and beyond.

Cheers,

Dyan Williams

Founder & Principal Attorney
(612) 225-9900
dw@dyanwilliamslaw.com

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Photo by: woodleywonderworks, universal thank you note

Changes to the Visa Bulletin: Understanding the Two Filing Charts

queue

On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).  The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.

Advantages with the New System

The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.

Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at www.uscis.gov/visabulletininfo. When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.

The DFAs are later than the AFADs, by as much as one year or so, as shown in the November and December 2015 Visa Bulletins. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.

The new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence. They may apply for an immigrant visa or adjustment of status even before their priority dates become current and a visa actually becomes available to them, as shown in the AFAD chart.

When the Immigrant Visa applicant’s priority date is earlier than the cut-off date in the DFA chart, he may submit required documents to the NVC, following receipt of notice containing filing instructions.

If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. Applicants with pending I-485s may also file for and receive an employment authorization document (EAD) and advance parole (travel document).

Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.

Limitations of the New System

Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.

All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.

USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.

When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.

Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.

Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon. A completed Form I-693 is valid for only 12 months from the time it is submitted to USCIS. Applicants must also submit the Form I-693 to USCIS within one year of the immigration medical examination.

If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.

The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.

If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.

A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.

The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens 

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.

When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.

When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.

If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.

Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:

  • Spouses of U.S. citizens
  • Unmarried, minor children (under age 21) of U.S. citizens
  • Parents of adult U.S. citizens (age 21 or older)
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death

When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current

You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.

Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.

While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.

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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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5 Must-Dos When Responding to an Ethics Complaint

Each year, about 75% of all ethics complaints received by the Office of Lawyers Professional Responsibility are summarily dismissed without investigation, or after investigation with a determination that discipline is not warranted.  When the Director’s Office chooses to investigate, there must be “a reasonable belief that professional misconduct may have occurred,” states Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR).  A Notice of Investigation (NOI) is issued to the attorney, who then has an opportunity to respond.

If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-dos when responding to it: 

1. Cooperate with the investigation

Although the Director’s Office may conduct the investigation, a volunteer with the District Ethics Committee (DEC) usually investigates complaints and makes reports and recommendations. The DEC is comprised of attorney members and non-attorney members.

The NOI includes a copy of the complaint, asks for a response, and identifies the investigator.  The NOI might also describe the alleged misconduct and/or the ethics rules at issue. You may also ask the OLPR to clarify the possible rules violation(s) that are being investigated.

Rule 25, RLPR mandates a duty to cooperate with the investigation. This means responding to reasonable requests for papers and documents, a written explanation addressing the matter under consideration, and appearing at meetings, conferences and hearings.

Rule 8.1(b), Minnesota Rules of Professional Conduct (MRPC)(Bar Admission and Disciplinary Matters) further states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…” except when the information is otherwise protected by Rule 1.6, MRPC (Confidentiality of Information).

Failure to cooperate amounts to a violation of Rule 8.1(b), which may be an additional charge independent of the underlying complaint. It can even subject the lawyer to public discipline.

Consider the investigation process as an opportunity to set the record straight and provide your perspective on what actually occurred. At this stage, the OLPR is more of a fact-finder instead of a prosecutor.

2. Be on time

Ignoring the NOI and burying it under a pile of miscellaneous files won’t make it go away. Confront the complaint head on, even if you think it has no merits.

The NOI will give you a deadline in which to respond, typically 14 days. Filing your response on time is paramount to meeting your obligations under Rule 8.1(b), MRPC. It can also work in your favor as to the merits of the complaint, particularly if you are under investigation for violating Rule 1.3, MRPC (Diligence).

Put the due date on your calendar and into your tickler system. Set aside plenty of time to fully prepare a well-developed response.

Timely and reasonable requests for extension are readily granted by the OLPR and DEC, but don’t ask for more time unless you really need it. Refrain from asking for long and additional extensions, which could give the impression that you procrastinate on important matters.

Submit a written request well before the due date and explain why you are asking for an extension. (Being preoccupied with client deadlines and attending trial are good reasons. Not being able to locate the client file or the documents requested is probably not.)

3. Set a professional and respectful tone

It can be nerve-wracking to find out the Director’s Office has opted to investigate, instead of summarily dismiss the complaint on its face.  Your receiving an NOI means there are claims in the complaint — if found to be true — that amount to a violation of one or more ethics rules.

Show the utmost respect to the investigator (including non-attorney DEC members). Submitting an angry and defensive response will not help you. Resorting to personal attacks on the complainant or witness or engaging in emotional tirades makes a bad situation worse.

Do not file a retaliatory lawsuit or threaten the complainant with a defamation suit, which may lead to additional charges of professional misconduct.    The complainant has full immunity. Rule 21, RLPR, provides that an ethics complaint is absolutely privileged and may not serve as a basis for liability in a civil lawsuit.

Although you may take corrective action to address clients’ concerns noted in the complaint, you may not demand they withdraw their complaint as a condition. A complaint cannot be withdrawn once an NOI issued.

Your response will likely be marked as an exhibit if the OLPR decides to pursue disciplinary action against you. Your behavior during the investigation and disciplinary proceedings does matter. In one attorney discipline case, Pokorny was issued a private admonition for isolated and non-serious misconduct, but was suspended for his behavior during proceedings. See In re Pokorny, 453 N.W.2d 345 (Minn. 1990).

4. Provide a coherent description of the facts with documents to back it up

When there are conflicting versions of relevant facts, highlight positive factors that bolster your credibility or discredit the complainant. But refrain from revealing irrelevant and embarrassing information just to get back at the complainant, especially if it involves client confidences. Disclosure of confidential client information is limited to the extent necessary to establish a claim or defense in  a controversy with the client or to respond to allegations by the client concerning the lawyer’s representation. Rule 1.6(b)(8), MRPC.

Prepare a well-written, detailed and coherent response as if it were for your most important, favorite client. Provide facts and information that demonstrate how you met or exceeded your professional obligations. Support your response with relevant documentation, including sworn affidavits from third parties who have direct knowledge of the matter.

If the complaint or NOI mentions you failed to provide competent representation, describe the work you did for the client, provide documentation of the work, and explain how the work served to meet the client’s objectives.

If failure to communicate with the client is at issue, produce the letters, emails, telephone records, attorney-client meeting notes, and case notes demonstrating regular correspondence.

If failure to act diligently is one of the allegations, include evidence of your meeting deadlines, attending hearings, and following up on the client’s case. Describe any legitimate basis for inactivity in the client’s case. Did the client fail to timely respond to requests for necessary information and documents? Did you stop working on the case (without unduly prejudicing the client) because the client failed to pay agreed-upon legal fees?

Make sure the information you provide is accurate.  Review the client file, including case notes, correspondences, and work product. Qualify factual assertions when necessary. A response that includes false or inaccurate statements may be construed as a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) or 8.4(d) (conduct that is prejudicial to the administration of justice), MRPC.

5. Hire counsel (or at least get a second opinion)

When your reputation, profession, livelihood and attorney license are at stake, it can be very difficult to respond to the ethics complaint objectively and calmly. Consider hiring an ethics defense counsel for full representation or on a limited-scope basis. This is not a sign of culpability.

At the very least, have an attorney – who knows the investigation and disciplinary process well – review your response or work with you in preparing a response.

Be sure to review your malpractice insurance policy, which may provide for payment of fees of counsel for responding to the NOI. The policy may also require you to report the NOI to the carrier.

The risks and consequences are higher when the complaint goes beyond preliminary investigation.  Present your best case at the outset. Before you submit your response, get experienced counsel to check for clarity, coherence, and  tone.

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These are the top 5 must-dos when responding to an ethics complaint. These tips will help you maximize your chances of having the complaint dismissed when you did all you could to meet your professional obligations.  The response you provide influences the OLPR’s decision on whether to go beyond the investigation. It will also play a crucial role if the OLPR decides to pursue disciplinary action against you.

Be sure to read 5 Must-Knows When Responding to an Ethics Complaint.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

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: Davide Cassanello

Responding to Ethics Complaints: Know the Rules!

When it comes to your law practice, avoiding ethics complaints is more effective and efficient than responding to them. But there is no foolproof way to prevent disgruntled clients and third parties from complaining to the Office of Lawyers Professional Responsibility (OLPR) about you.

If the OLPR serves you with a Notice of Investigation (NOI), a timely response is required. Otherwise, you will run afoul of Rule 8.1(b),Minnesota Rules of Professional Conduct (MRPC) , which states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…”

Rule 25, Minnesota Rules on Lawyers Professional Responsibility (RLPR), further imposes a duty to cooperate with the investigation or proceedings. In particular, the lawyer must comply with reasonable requests, including requests for documents and information related to the client matter(s) in question.

An attorney at the OLPR will screen complaints before deciding whether to investigate or before sending a complaint to the local District Ethics Committee (DEC) for preliminary investigation. The OLPR summarily dismisses many complaints, without investigation. But when there is “reasonable belief that professional misconduct may have occurred,” based on Rule 8(a), RLPR, the OLPR may initiate an investigation into the lawyer’s conduct.

The MRPC set the professional standards under which lawyers may be disciplined. The rules cover competence, diligence, fees, communication, confidentiality and other issues that naturally arise in law practice. Knowledge of the rules related to professional conduct is tested in the Multistate Professional Responsibility Examination (MRPE), which was first administered in 1980 and is required for admission to the bars of almost all U.S. jurisdictions.

In responding to ethics complaints, lawyers also ought to read and review the RLPR. Until they become subject to disciplinary proceedings, most lawyers do not even know these formal rules exist. These are the procedural rules that govern the investigation and disposition of complaints, including how the disciplinary proceedings are conducted.

A timely, clear, organized, and well-documented response to the complaint sets a positive tone for the investigation or proceedings. An untimely, angry, incoherent and off-topic response hurts your credibility and could prompt the investigator to find merit in the complaint.

Interested in learning more about this topic?

On Wednesday, November 18, 4 to 5 pm, I will be participating as a panelist in a legal ethics discussion/CLE titled, Ethics in Practice: Exploring Ethics from Different Practice Perspectives. Other panelists include The Honorable Diane Alshouse, Ramsey County District Court Judge; Candace Groth, Associate Attorney at Virtus Law, and Kevin Slator, Senior Assistant Director at the OLPR. The discussion will be moderated by Blake Nelson, partner at Hellmut & Johnson who previously served on the 4th District Ethics Committee.

Registration deadline is Monday, November 16, 11:59 pm. For more information, go to William Mitchell’s CLE, Lectures and Events page.

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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: Blake Burkhart