Priority Date Recapture and Retention in Family-Based Immigration

Family-based immigration can take many years to complete due to slow processing times, huge backlogs, and the limited number of visas available in the family-sponsored, preference categories.

The priority date marks the immigrant visa/green card applicant’s place in the visa queue.  Being able to recapture and retain an old priority date from a previously filed petition in a new petition makes a big difference.

The priority date is when USCIS received the Form I-130, Petition for Alien Relative, from the U.S. citizen or permanent resident petitioner on behalf of the beneficiary.

During the process, certain changes in family circumstances may lead to complications, delays, and even termination of the case. An example is when an unmarried son of a U.S. citizen petitioner marries or when a minor child beneficiary turns age 21 before he immigrates.

Some situations involve automatic conversion from one preference category to another, where the old priority date is kept.  Others require the filing of a new, I-130 immigrant petition, which might not allow priority date recapture and retention.

Family-Sponsored, Preference Categories

There is no limit on the number of immigrant visas/green cards available to immediate relatives.  An immediate relative is the spouse or unmarried, minor child (under age 21) of a U.S. citizen, as well as the parent of an adult U.S. citizen (age 21 or older).

Family-sponsored, preference categories, however, have a maximum number of visas available each fiscal year.  Congress allocates visas to each preference category as follows:

First: (F1) Unmarried Sons and Daughters, age 21 or older, of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Unmarried Children, under age 21, of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Priority Date

Immigrant visas or green cards may be issued in family-sponsored, preference categories only when the priority date is current.

A priority date is current if the I-130 petition was filed before the cut-off date listed in the U.S. Department of State’s monthly Visa Bulletin for that category. The Visa Bulletin lists two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

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 (green card) applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart 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, USCIS also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing I-485 applications.

Automatic Conversion of Preference Categories 

While a family-based immigration case is pending, beneficiaries may move from one category to another, or lose immigrant visa eligibility altogether, due to changes in circumstances.

Federal regulations at 8 CFR 204.2(i) provide for automatic conversion from one family-sponsored, preference category to another, and allow for recapturing and retention of the old priority date in the following situations:

Preference Category Situation in which petition is automatically converted and old priority date is recaptured and retained

 

Immediate Relative/IR

Unmarried, minor child (under age 21) of U.S. citizen

 

Child marries: convert from Immediate Relative/IR to Third Preference/F3

 

Child turns age 21 and is not protected by the Child Status Protection Act (CSPA): convert from Immediate Relative/IR to First Preference/F1

 

First Preference/F1

Unmarried adult son or daughter (age 21 or older) of U.S. citizen

Son or daughter marries: convert  from First Preference/F1 to Third Preference/F3
Second Preference A/F2A

Minor child (under age 21) of permanent resident

Petitioner becomes a naturalized U.S. citizen while child is under age 21: convert from Second Preference A/F2A to Immediate Relative/IR. NOTE: A new I-130 petition must be filed in the Immediate Relatives category if the child was listed only as a derivative beneficiary in an I-130 petition for the petitioner’s spouse, and is not already a principal beneficiary of an-130 filed by petitioner.

 

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

Child turns 21 and is not protected by CSPA: convert from Second Preference A/F2A to Second Preference B/F2B

Second Preference B/F2B

Unmarried adult son or daughter ( age 21 or older), of permanent resident

Petitioner becomes a naturalized U.S. citizen: convert from Second Preference B/F2B to First Preference/F1. NOTE: If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

 

Third Preference/F3

Married son or daughter of U.S. citizen

Son or daughter divorces: convert from Third Preference/F3 to Immediate Relative/IR (if under age 21) or to First Preference/F1( if 21 or older)

 

In most cases, no new I-130 petition has to be filed when automatic conversion applies. The petitioner just has to notify USCIS, the National Visa Center or the U.S. Consulate of the conversion.

Priority Date Recapturing or Retention

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was not terminated or revoked.

Beneficiary Gets Married

Marriage of the beneficiary leads to automatic conversion in certain situations. For example, if an unmarried, minor child (under age 21) of a U.S. citizen marries, the petition is automatically converted from the Immediate Relatives to F3 category, but the original priority date is kept.

If an unmarried adult son or daughter (age 21 or older) of a U.S. citizen marries, the petition is automatically converted from the F1 to to F3 category, but the original priority date is kept.

In contrast, if an unmarried child (under age 21) of a permanent resident (F2A category) or  unmarried adult son or daughter (age 21 or older) of a permanent resident (F2B category) marries, the petition is automatically revoked or terminated as a matter of law because there is no category for permanent residents to file for married children. Even if the child/son/daughter divorces, he or she cannot regain the status of a F2A or F2B preference because the I-130 was revoked.  An annulment, however, might serve to reinstate the second preference status.

If the permanent resident parent becomes a U.S. citizen and then files a new petition for the child/son/ daughter in the F3 category, a new priority date will apply and the old priority date cannot be recaptured.

Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

INA § 203(h)(3) states that if a child “ages out” (turns age 21) and is not covered by age-out protections under the Child Status Protection Act (CSPA), the petition for him or her will be automatically converted to the appropriate preference category.

Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number became available and deduct the time the I-130 petition was pending from the child’s age. If the result is less than 21 years of age, he keeps the same preference category provided he seeks to acquire permanent residence within one year of  when an immigrant visa or green card becomes available.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

Derivative Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

A derivative beneficiary includes a minor child (under age 21) of a principal beneficiary of an I-130 petition. When the derivative child turns 21 and “ages out,” the child is no longer eligible to immigrate as a derivative beneficiary of the I-130 petition for her parents. Therefore, a new petition must be filed for the former derivative child as the principal beneficiary.

INA § 203(h)(3), regarding the retention of priority dates, states, “If the age of an alien is determined [by the CSPA calculator] to be 21 years of age or older for the purposes of [retaining status as a derivative beneficiary in the preference categories], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

In a 2009 case, Matter of Wang, the BIA found that while the language in section 203(h)(3) is ambiguous, Congress intended for priority dates to be retained only when the same petitioner filed a second petition for the same beneficiary. The BIA held that retention of the old priority date was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” The BIA found § 203(h)(3) did not apply to derivative beneficiaries in other categories.

Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference petition is filed by the same petitioner. The case involved a beneficiary from China whose LPR parent filed a petition for him in the F2B category. He had a petition previously filed on his behalf by his brother under the F4 category. He sought to recapture the old priority date under the F4 category. But the BIA held he could not recapture the original priority date because the petition under the F2B category required a different petitioner and sponsor than the original petition under the F4 category.

In its June 2014 decision in Scialabba v. Cuellar de Osorio, the U.S. Supreme Court agreed with the BIA’s holding. The Supreme Court read section 203(h)(3) to allow only derivative children of beneficiaries of F2A petitions (for spouses and children of permanent residents) to retain the priority date of their parent’s original petition.

The Supreme Court’s decision supersedes earlier appellate court holdings, such as Khalid v. Holder, in which the Fifth Circuit Court of Appeals rejected Matter of Wang and held that the CSPA priority date retention applies to all petitions where derivative beneficiaries may “age out,” not just to second-preference petitions.

To recapture the priority date, the new petition must be filed by the same, original petitioner. The priority date cannot be recaptured in a situation like in Matter of Wang, where the original petitioner was a U.S. citizen brother and the second petitioner was a permanent resident father. The rule set forth in Matter of Wang, and upheld by the U.S. Supreme Court in Scialabba, limits situations in which a priority date may be recaptured in a new I-130 filing.

Derivative beneficiaries under any other preference category besides F2A may not retain the priority date of the petition where their parents were principal beneficiaries. These other derivative beneficiaries include the children of unmarried sons and daughters of U.S. citizens (First Preference/F1); the children of unmarried sons and daughters of permanent residents (Second Preference B/F2B); the children of married sons and daughters of U.S. citizens (Third Preference/F3); and the children of siblings of U.S. citizens (Fourth Preference category, F4).

Scenario 1Maria is the principal beneficiary of an I-130 petition filed by her permanent resident spouse, Thomas, in the F2A (spouse of permanent resident) category. Maria’s daughter, Ana, is included in the petition as a derivative beneficiary. But Ana ages out (turns age 21) and may no longer follow to join the principal beneficiary.

The original petitioner, Thomas, then files an I-130 petition for Ana in the F2B (adult, unmarried daughter of permanent resident) category. Ana may recapture the old priority date because she was the derivative of an F2A beneficiary.

Scenario 2: Maria is the principal beneficiary of an I-130 petition field by her U.S. citizen brother, Joaquin, in the F4 (sister of adult U.S. citizen) category. Maria’s daughter, Ana, is included in the petition as  a derivative beneficiary. But Ana ages out (turns age 21) and can no longer follow to join the principal beneficiary.

The original petitioner, Joaquin, may not file an I-130 petition for Ana because there is no category for nieces of a U.S. citizen. Ana’s now permanent resident mother, Maria, then files an I-130 petition for her in the F2B (adult, unmarried daughter of permanent resident) category. Ana may not recapture the old priority date because she was the derivative of an F4 beneficiary.

Ana’s immigration process will be delayed more in Scenario 2 because, unlike in Scenario 1, she cannot retain the priority date of the parent’s original I-130 petition. Because she has aged out, she needs to have a new I-130 petition with a new priority date filed for her.

Petitioner Naturalizes

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a minor child who turns 21, but is protected by CSPA, will convert from the F2A to F1 category. If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a an unmarried son or daughter (age 21 or older) will convert from F2B to F1 category. If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

Conclusion

The priority date (i.e. the date the I-130 petition was filed with USCIS) determines when you may immigrate to the United States or adjust to permanent resident status.

Determining whether a beneficiary or derivative beneficiary is protected by CSPA after aging out (turning 21) is complicated. Seeking to recapture and retain an earlier priority date to reduce immigration delays can be tricky.

Consult an experienced immigration attorney to fully evaluate your situation, including whether CSPA applies or whether an old priority date may be recaptured and retained.

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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: Kevin Haggerty

 

Zeal Meets Zen: 3 Ways to Cultivate Mindfulness in Law Practice

Mindfulness is paying attention to your present experience without judgement. It develops your awareness of what is before you, as well as how you relate to it and act or behave as a result.

For lawyers, the capacity to operate in responsive mode (rather than react impulsively to challenging situations) leads to competence, diligence, and other ethical behaviors in law practice.

Mindfulness reduces your preoccupations with thoughts about the past and future, which frequently add to stress, worry and anxiety. With a regular and consistent mindfulness practice, you reap a host of benefits, such as reduced procrastination, increased focus, better decision making, and stronger resilience to stressors.

Here are 3 ways to cultivate mindfulness in law practice:

1. Meditation

Meditation is a formal practice of mindfulness. In Mindfulness-Based Stress Reduction (MSBR), Zen practice, and other kinds of meditation forms, there is sitting meditation and sometimes walking meditation.  This involves setting aside a time block to sit calmly and quietly or walk  slowly and silently.

It’s important to actively engage in meditation by staying open and curious. Sometimes your practice will be frustrating and consist of aches, pain, discomfort and meandering thoughts. Other times it will give you tremendous stress release and bring a sense of peace and equanimity. There’s no point in evaluating whether your meditation session is good or bad; just let it unfold naturally.

Find a meditation teacher who resonates with you. Classes are available at your local yoga studio and meditation center, as well as online.  You could also try a mindfulness or guided meditation app like Headspace, Insight Timer and Calm.

Choose a style that works for you and dive deep into it so you can experience significant, long-term shifts. Avoid jumping around quickly from one technique to another or striving to “master” a specific method or form.

Commit to a regular practice, ideally a minimum of 15 minutes every day. Good times to meditate are during your morning routine, over the lunch break, at the end of your work day, and during your evening routine.

If you’re new to meditation, you can keep it brief (e.g. one to five minutes).  Experiment with the length of your meditations and don’t be discouraged if there is no noticeable difference after just one or two sessions. It usually takes consistent practice for several weeks before your mindfulness training becomes a habit that brings long-lasting effects.

Focused Attention

One of the most common forms of meditation is focused attention. This involves placing your attention on a chosen object, such as the breath, sensations in the body, the sound of a metronome, or a visual piece. When your attention drifts, you bring it back to the object.

Open Monitoring (Open Awareness)

A more advanced form of meditation is open monitoring or open awareness. This involves expanding your attention, as a neutral observer, to the changing flow of experience, such as breath, bodily sensations, and thoughts, as well as external stimuli like sights, sounds, tastes and smells.

You notice the images, stories, judgements, and commentaries your mind generates.  You just allow them to be there, as is, without attempting to direct or control them. You don’t try to focus on or hold on to any one thing, but allow your attention to shift naturally, without judgment.

2. Mindfulness in daily life

Mindfulness can be practiced within or added to your normal, daily activities. When you’re doing a task, just do that one thing and pour your attention on it. As you drive, know you’re driving. As you walk, know you’re walking.

Eliminate digital distractions and external stimuli that take you out of the present moment and prevent you from savoring quiet time. Do daily activities – such as like brushing your teeth, eating, waiting in the checkout line and talking with another person — mindfully and deliberately, and not while you’re engaging in other activities. Embrace any boredom or frustration that comes with single tasking and focusing on one experience.

Take a mindfulness pause after every hour or so of focused work or busy work, or when you hear the telephone ring. Notice your breath. Observe your surroundings. Be in the moment before you move on to the next thing.

If necessary, use a mindfulness timer. When it goes off, ask yourself whether what you were doing was the best use of your time and energy. Were you fully attending to it? Does it deserve your ongoing attention?

3. Morning routine (morning rituals) and evening routine (evening rituals) 

Although the middle of your day is susceptible to distractions and interruptions, you typically have control over how you start and end your day. In particular, you can bookend your day with a morning routine and evening routine to cultivate mindfulness in your personal and professional life.

Both morning routines and evening routines work best when they include specific rituals done at a specific time period. They also, however, need to adapt to changes in your life and the seasons of your life.

If you start your day off by checking emails, reading news feeds and logging on to social media, you flood your brain with new information that triggers stress hormones and puts you in reactive mode. Having a mindful, morning routine reduces the fight-or-flight instincts and helps you begin your day more calmly and purposefully.

In The Miracle Morning, author Hal Elrod describes 6 steps known as S.A.V.E.R.S. for your morning routine. They are silence, affirmations, visualization, exercise, reading and scribing (writing/journaling). Although  Elrod’s method might not work precisely for you, it gives you a solid framework for creating your own morning rituals.

Morning rituals, after you wake up, could be as simple as spending two minutes in bed noticing your breath, followed by feeling your feet on the floor, light stretching, drinking water, and washing your face. After a brief mindfulness practice (e.g. meditation, tai chi, hatha yoga), you review your daily plan and commit to tackling your number one priority.

Evening rituals may include shutting down electronic devices, reviewing your day’s accomplishments, planning for the next day, writing in a gratitude journal, reading poetry, and meditating for 15 minutes before you turn out the lights and go to bed.

A morning routine primes you for a truly productive day. An evening routine puts you in a calm state for deep rest and rejuvenation. Take time to plan and execute morning rituals and evening rituals that bring mindfulness to the start and end of your day, no matter how hectic the middle of it gets.

Conclusion

Formal meditation, mindfulness in daily life, and mindful morning and evening routines are three ways for lawyers to purposely engage with their day and intentionally integrate the professional ethics rules into their practice.

With mindfulness, you are more likely to act in alignment with deeply held ethical principles and the core needs of the situation, rather than rely entirely on transitory thoughts, feelings and emotions that can steer you in a harmful direction.

To learn more, read the related articles, Zeal Meets Zen: How Mindfulness Promotes Competence in Law Practice and Zeal Meets Zen: How Mindfulness Promotes Diligence in Law Practice. Also check out A Beginner’s Guide to Mindfulness & Meditation in Daily Life.

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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: Jason Parker-Burlingham

Zeal Meets Zen: How Mindfulness Promotes Diligence in Law Practice

Mindfulness is a solution for lawyers to de-stress, concentrate, and get important things done in the midst of limitless distractions and mounting responsibilities.

Even modern-day, watered-down versions of mindfulness practice, which dates back about 5,000 years ago, produce noticeable, personal benefits. Improved health and enhanced wellness further lead to diligent, ethical action in law practice.

What is Mindfulness? 

There is no single definition of mindfulness, although it is now widely discussed in books, articles, classes, workshops, research studies, and other sources. In general, it involves conscious awareness of or receptive attention to what is before you, followed by appropriate action. It serves as both an inquiry tool and a way of being.

One of the simplest definitions of mindfulness comes from Jon Kabat-Zinn, creator of the Mindfulness-Based Stress Reduction (MBSR) program at the University of Massachusetts Medical School.  Credited with introducing non-secular mindfulness to the West, Kabat-Zinn defines it as “paying attention in a particular way: on purpose in the present moment and nonjudgmentally.”

John Goldstein, teacher of Vipassana (Insight) meditation and co-founder of the Insight Meditation Society and Barre Center for Buddhist Studies, points out that mindfulness is not just about being present, but also noticing how your mind works and how you relate to the present. He describes mindfulness as the power of the mind to observe the present — free from desire, delusion or aversion, which reduces unskilled tendencies and encourages skilled choices.

What is Zen? 

Zen practice emphasizes “zazen” – a Japanese term that is often translated as sitting meditation or Zen meditation. This involves staying upright to whatever thought, feeling, emotion or sensation arises, without clinging to what you like or pushing away what you don’t like. Mind and body are together in a holistic posture and in harmony with what is.

The Zen mind is often said to be like the vast sky or clear water, in which the confused mind shows up as the clouds or the waves. It permits paradox and allows for the coexistence of your original nature (being with what is) and dualistic thinking  (e.g. for and against, right and wrong, good and bad, success and failure).

Zen meditation and other forms of meditation encourage mindfulness, not just during the practice, but also in your daily life. You benefit not from mastering a meditation technique, but from bringing a similar quality of attention to your normal activities.

What is Diligence? 

The  words “zeal” and “zealous advocate” do not appear in the professional ethics rules. But lawyers are expected to represent their clients with zeal by way of consensus within the legal community, as well as comments found in the ABA Model Rules of Professional Conduct, Rule 1.3 (Diligence).

Rule 1.3 of the Minnesota Rules of Professional Conduct, which mirrors the Model Rule, states “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Comment 1 adds:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.  A lawyer is not bound, however, to press for every advantage that might be realized for a client…The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

The negative effects of procrastination on diligence is so significant that it is mentioned specifically in Comment 3, which states:

Perhaps no professional shortcoming is more widely resented than procrastination. 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.

How Does Mindfulness Promote Diligence? 

I prefer the term right diligence rather than right effort. Making efforts can make you tired, but when you are diligent, you don’t need to be tired. ~ Thích Nhất Hạnh

The ethics rules reflect a certain set of core values governing the legal profession. Diligence, which includes staying on top of things, meeting deadlines, and following up on solutions to further the client’s interests, is specifically covered in Rule 1.3.  Values like commitment, dedication, courtesy, respect and trustworthiness also appear in the comments of Rule 1.3.

Mindfulness promotes steady progress toward timely, effective completion of a matter (diligence) — without the use of unethical measures — in several, key ways:

1. Clarifies what is most important

When you’re putting out fires and tackling one urgent thing after another, it’s easy to lose sight of your core purpose and true priorities.

If you’re not clear on your number one priority or most important task, you will feel overwhelmed and not know where to start. You will be more prone to tackle a bunch of less significant tasks that require less brainpower and are easier to do.

Mindfulness fosters mental clarity. It lets you pause, reflect and consciously choose what matters the most. It helps you pay attention to your own needs and the situation at issue, rather than compare yourself to others and their circumstances. Mindful reflection gives you insight on where to dedicate your focus, time and energy, and stop yourself from getting caught up in a flurry of activities.

When you deliberately choose your top priority, you are better equipped to make disciplined progress and take steady steps toward finishing the assignment. You also purposely delay or say no to low-leverage projects that keep you busy, but add little value.

2. Discourages procrastination

Procrastination is delaying action on a task that needs to be done now. Tim Pychyl, a psychology professor and procrastination researcher at Carleton University, notes you are more likely to procrastinate on aversive tasks that tend to be boring, frustrating, difficult, meaningless, ambiguous or unstructured. In his book, Solving the Procrastination Puzzle, Pychyl explains that procrastination is an avoidant coping response to tasks that evoke negative emotions.

How many times have you put off an important task because you just did not feel like doing it? And did you keep yourself busy with other tasks (e.g. reply to emails) so you would have a good excuse to postpone the one thing you really needed to do (e.g. write a legal brief)?

You might have told yourself you do your best and most creative work under pressure, when you’re up against a deadline and the task can no longer be delayed. And you blame performance deficiencies and poor-quality work product on having a busy schedule and lack of time, rather than on procrastination and  lack of diligence.

Pychyl adds that mindfulness awareness and acceptance are key steps to resolving procrastination, which is a self-regulation failure. By understanding when and why you procrastinate, you can make stronger efforts to take action,  instead of give in to the habitual response of delaying the task to avoid negative emotions.

Moment to moment awareness allows you to respond accordingly to the situation at hand. Instead of letting your thoughts and feelings dictate whether you do a particular task, you do the task because it brings high value and fulfills a real purpose.

3. Improves focus and other cognitive functions

Performing two or more tasks simultaneously – instead of doing just one – can seem like a time-saver for busy lawyers. But multitasking is really a huge time suck when you’re dealing with cognitively demanding tasks. It’s more productive to monotask or single task when an assignment takes effort and focus to complete well.

You’re only able to tackle two tasks when the cognitive load of at least one of them is low. Examples include walking with a colleague while you discuss a workplace dilemma, filling out your expense reports while you listen to classical music, or reading case law while you cycle on a stationary bike.

But have you tried checking your emails or text messages when you’re participating at a trial, office meeting, or conference session? You will definitely miss out on what is being said while you’re reading about unrelated issues.

The human brain is a sequential processor: It cannot pay attention to more than one thing at a time. In The Distracted Mind: Ancient Brains in a High Tech World, neuroscientist Adam Gazzaley and psychologist Larry D. Rosen explain the mind has a limited capacity to pay attention, which makes it impossible to focus on two or more completely unrelated tasks at the same time.

When you concentrate on a single task, both the left and right sides of the prefrontal cortex work together in harmony. But when you multitask, you switch between the two sides of the prefrontal cortex. Shifting between tasks, instead of tackling one individually, can cost as much as 40 percent of your time.

In a University of California – Irvine study, researchers found it takes, on average, up to 20 minutes to refocus on an activity after being interrupted by email or another minor distraction. Each time you divert your attention from one task to another, you add to the time it would otherwise take you to complete it.

As your brain takes in new information on the second task, your attention becomes scattered and you lose your primary focus on the first task.  You then have to catch up on the information you missed or the thought process you abandoned to fully get back to the first task. Plus, attention residue from a prior unfinished task affects your performance on the new task.

Despite the consequences, many lawyers spread their attention among two or more things to reduce boredom, deal with impatience, avoid the difficult task, feel important, or get a quick dopamine hit. But with mindfulness, you get more comfortable with discomfort, develop a stable foundation for instability, and become more accepting of difficult situations you cannot change.

In a 2012 study, researchers found that “a brief period of mindfulness meditation may serve as a quick and efficient strategy to foster self-control under conditions of low resources.” Being able to pause and observe your thoughts and feelings, without engaging with them, gives you more impulse control.

A 2010 study found that “brief mindfulness training significantly improved visuo-spatial processing, working memory, and executive functioning.” Researchers noted, “Our findings suggest that 4 days of meditation training can enhance the ability to sustain attention.”

In short, mindfulness steers you away from counterproductive distractions and shiny new things, and helps you focus on the cognitively demanding task you really need to do.

4. Leads to better decision making and choices

Mindfulness allows you to notice your feelings and thoughts without letting them control you and your actions. While feelings and thoughts are necessary and natural, they can get you in trouble if you react impulsively to them. Watching TV for hours, drinking alcohol excessively, and putting off the important telephone call to deliver bad news can ease discomfort, tension and fear in the short term, but cause serious long-term problems.

With enhanced awareness, you can improve your discernment and ability to take appropriate action in alignment with your deepest values, professional ethics and excellence, and the needs of the situation.

Roy L. Baumeister, pscyhologist and author of Willpower: Rediscovering the Greatest Human Strength, notes that willpower and decision making are interconnected. Willpower is a limited resource such that when you use it on one task that requires self-control, you have less to apply on the second task. Each time you make a decision, you deplete your willpower and start making poor decisions or avoid making choices altogether.

With mindfulness training, you avoid exhausting your willpower to control thoughts, feelings and sensations. You just let them be and keep coming back to the present. Furthermore, mindfulness practices often involve rituals and routines from which you can develop good habits. In turn, habits reduce decision fatigue and make it easier to tackle difficult things because you have a certain time block, space and auto-response for doing them.

Even when you don’t feel like it, you will still write the research article when you have a good habit of writing daily, say from 9 am to 10 am.  Instead of putting aside the weekend before the deadline to crank out the article, you commit one hour each day to work on it weeks in advance. Just like with meditation, the value is in the momentum that comes with habitually or regularly working on the high cognitive demand task.

Mindfulness also helps you break bad habits, which is why a growing number of addiction centers incorporate it into their substance abuse programs. By stimulating the prefrontal cortex (decision making/moral reasoning center) and shrinking the amygdala (fight or flight center) in the brain, mindfulness increases your ability to see possibilities, spot opportunities, and make empowered choices rather than react impulsively and habitually.

Instead of succumbing to the bad habit of surfing the Internet as soon as you get bored with writing, you can take a mindfulness break. Or use mindfulness to activate higher order activity and deactivate lower activity in the brain to stay with the main task.  This results in a higher quality work product and fewer mistakes.

In addition, mindfulness helps you become more fully aware and accepting of circumstances you cannot control. This is not passivity, but about letting go of your tight grip on what you believe is right and wrong, or good and bad, or just and unjust.

When dealing with a difficult client, unreasonable opposing counsel, or a tough judge, you will find yourself wishing they were different and agreeable to your perspective. Stress hormones get released, which clouds your reasoning, triggers negative emotions, and brings old patterns of attacking and defending to the surface.

With mindfulness, you observe the situation and drop your judgements about others and opinions about what they should do. You welcome both feelings of compassion and aggression as equally important, energetic sensations  in the body that come and go. By making space for them, you can choose when and how to act, rather than give in to impulsive reactions.

You also recognize your thoughts as stories, narratives, mental constructs and interpretations about what is happening. Your thoughts are not facts. They often depend on transitory feelings and emotions, social conditioning, traumatic experiences, personal biases and other factors that have little to do with present reality.

Mindfulness training helps you acknowledge that others, just like you, are simply trying to protect themselves and meet their own needs, not necessarily harm you or ignore your needs. When you are open to considering the other person’s needs without judgment, there is greater potential for mutually satisfying outcomes, even in the most hostile situations.

Except in unique situations – such as when one party has a mental condition or personality disorder — it’s usually possible to build common ground. Two persons who feel a mutual connection are more likely to resolve their conflict and be satisfied with a solution that meets the most significant needs of both, but not every single one of their individual needs. Recognizing that an opposing viewpoint has value encourages mutually acceptable solutions instead of non-negotiable, win-lose positions.

5. Reduces propensity for burnout

Overwork contributes to chronic stress, anxiety, and depression and compromises your ability to provide diligent representation. When demands keep exceeding resources — and you have no opportunity to recharge and recover  – you become vulnerable to burnout. Common symptoms include disengagement, emotional exhaustion, physical fatigue, cynicism, a sense of inefficacy, and impaired concentration.

The American Psychological Association notes, “Acute stress comes from demands and pressures of the recent past and anticipated demands and pressures of the future.” Mindfulness-based stress reduction (MSBR), in particular, has been found to reduce stress and quell anxiety.  It consists of an eight-week program of hatha yoga as well as formal and informal meditation practice. Formal practice includes breath-focused attention, body scan-based attention, open monitoring of moment-to-moment experience, walking meditation, and eating meditation. Informal practice includes brief pauses to direct your attention to the present moment.  Together, these practices improve your ability to recognize thoughts,  emotions, and sensations as temporary and respond effectively instead of habitually.

Studies also show that mindfulness-based therapy (MBT), which includes mindfulness-based cognitive therapy (MBCT), can help with depression and anxiety. A mindfulness practice reduces excessive orientation toward the past or future, which triggers feelings of depression and anxiety. It increases your ability to attend to unpleasant or challenging situations nonjudgmentally and openly.

A 2016 study also found that MBCT helps reduce intolerance for uncertainty (IU), which is prevalent in anxiety and panic disorders. IU is a predisposition to react negatively on an emotional, cognitive, and behavioral level to uncertain situations and events due to negative beliefs about uncertainty and its effects.

Mindfulness enables you to observe your thoughts and feelings without judgment, accept reality, deal with catastrophizing misbeliefs, and generate tailored, informed responses to difficult circumstances.

Mindfulness also builds emotional resilience, which is the ability to bounce back from criticism, rejection, setbacks, failures and other stressors. Clinical psychologist and resilience research, Dr. George Bonnano notes that how you perceive stressors and react to them is a central element of resilience.

2016 study linking mindfulness and resilience concluded that mindful people are more skilled at coping with difficult thoughts and emotions without becoming overwhelmed or shutting down. By sitting quietly and calmly even while your mind is active and working involuntarily, you are better able to take a more reflective and less reactive response to stressful conditions.

In Hardwiring Your Brain for Happiness: The New Brain Science of Contentment, Calm and Confidence, neuropsychologist Dr. Rick Hanson  explains the brain is divided into two operating modes: reactive and responsive. When the brain is in reactive mode, your cognitive functioning is impaired and you think less clearly. When your brain is in responsive mode,  you  feel “in the flow,” which boosts productivity and satisfaction.

Maintaining moment to moment awareness keeps the brain in responsive mode and beats its negativity bias, which is the tendency to react more intensely to negative stimuli than to equally positive ones. By recognizing how the brain is wired to make you fear any and all threats, as well as overlook positive stimuli, you build emotional resilience to daily challenges that, when left unchecked, can lead to burnout.

Mindfulness reminds you there is a middle way between burning out and quitting. You don’t power through when you’re exhausted, and you take necessary breaks with guidelines and limits. Taking even 5 to 10 minute pauses between hour-long blocks of work is key to maintaining steady progress. Breaks allow you to refresh your focus and renew your energy to begin, follow through, and complete important assignments.

Diligence does not mean you get sucked into your work to the detriment of your health, well being, and significant relationships.  Pulling all nighters, out hustling the competition, and skimming on sleep become less attractive when you’re mindful and recognize self-care as critical to diligent productivity.

Conclusion

The growing body of research and scientific studies on the benefits of mindfulness is spurring more law schools to offer mindfulness programs,  associations to organize mindfulness presentations and workshops, and law firms to promote mindfulness to their members.

With mindfulness, you are better equipped to avoid procrastination and provide zealous, diligent representation while exercising professional discretion and showing courtesy and respect to all persons in the process.

To learn more, read the related articles, Zeal Meets Zen: How Mindfulness Promotes Competence in Law Practice and  Zeal Meets Zen: 3 Ways to Cultivate Mindfulness in Law Practice. Also check out A Beginner’s Guide to Mindfulness & Meditation in Daily Life.

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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: Blue Gum

Zeal Meets Zen: How Mindfulness Promotes Competence in Law Practice

As zealous advocates charged with solving problems, managing conflicts, and arguing for a cause,  lawyers often find themselves in uniquely stressful situations.

Mindfulness helps lawyers deal with difficult conditions, unpredictable circumstances, combative settings, and exceptionally high, internal standards. It shifts you out of the fight-or-flight mode and into a more productive response to stressors that undermine competent representation.

What is Mindfulness?

Mindfulness means bringing a pure awareness to the present moment and complete attention to what you are doing. It includes accepting your thoughts, feelings, sensations, emotions and external environment without judgment.  It develops your ability to attend to your immediate experience, and disentangle yourself from habitual reactions to the past or future.

Jack Kornfield, a clinical psychologist and Vipassan (Insight) meditation teacher, defines mindfulness as a nonjudgmental, receptive, respectful awareness. But he notes, “Unfortunately, much of the time we don’t attend in this way.” He adds, “Instead, we react, judging whether we like, dislike, or can ignore what is happening. Or we measure our experience against our expectation.”

In Bringing Home the Dharma: Awakening Right Where You Are, Kornfield describes four principles for mindful transformation: recognition (recognizing your reality), acceptance (accepting the facts before you), investigation (investigating fully the nature of your experience with sensory awareness, not analysis) and non-identification (letting go of your state, experience and story and resting in awareness itself).

What is Zen?

Compared to mindfulness, the term “zen” is harder to explain and less talked about in mainstream circles. Zen practice is frequently associated with peace, bliss, and a relaxed state of being. But it actually poses cryptic questions, statements, and stories (kōans) that are meant to open your mind and exhaust intellectual thinking, which can be very frustrating – at least to the novice practitioner.

The Japanese word “zen” is derived from the Chinese word “chán” and the sanskrit word “dhyana,” which mean “meditation.” As a tradition, Zen involves highly ritualized practices, including Zen (sitting) meditation and walking meditation, designed to awaken you to your true nature, in which you know your thoughts, feelings, sensations and emotions are transitory expressions of the natural mind.

What is Competence? 

To provide zealous and effective representation, lawyers first need to have competence. The ability to perform tasks and carry out duties depends on your acquiring knowledge, developing skills, and preparing and studying for the matter at hand.

ABA Model Rule 1.1 (Competence) instructs lawyers to provide competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule 1.1 of the Minnesota Rules of Professional adopts the ABA Model Rule.  Comment 1 states:

In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. 

Comment 2 adds that new lawyers can be as competent as seasoned lawyers. Lawyers need to analyze precedent, evaluate evidence, prepare legal argument, and determine the type of legal problems a situation involves. Necessary study is required to provide competent representation, especially when the field is novel to you. Comment 5 notes that the level of attention and preparation needed depends on the complexity of the matter and what is at stake.

Comment 8 further instructs lawyers to keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements.

How Does Mindfulness Promote Competence? 

“Thanks to impermanence, everything is possible.” ~ Thích Nhất Hạnh

The ethics rules lay out a universal set of principles for lawyers to follow. Competence is the first to be mentioned in Rule 1.1. If you fail to learn the law, hone your skills, study the facts, analyze the problem, and keep up with applicable changes, you cannot provide adequate representation to clients.

Mindfulness promotes the development of necessary skills and knowledge and thorough preparation on a matter (competence) in the following, critical ways:

1. Facilitates learning

In mindful meditation and other mindfulness practices, you often face feelings of boredom, impatience and frustration that you dislike. By sitting quietly, noticing what is happening, allowing the emotions to be present, and letting go of the storyline, you learn to be less judgmental. Maintaining an open awareness and a curious state of mind are necessary to developing competence.

In psychology, the four stages of developing competence (learning any new skill) are described as follows:

Stage 1 – Unconscious incompetence (novice). You don’t know what you don’t know. You’re blissfully unaware, naive, and unconsciously unskilled. You’re deluded about your ability to complete the task or you just don’t care about the task.

In the first stage, you are mindlessly hooked to unproductive patterns of thought and behavior that fail to meet the needs of the situation.

Stage 2 – Conscious incompetence (apprentice).  You know you don’t know. You’re aware of the need to acquire a skill you did not previously know is essential. You know why the skill is critical to complete the task, but you have yet to acquire it.

In the second stage, you recognize unproductive patterns of thought and behavior, which brings high levels of discomfort.

Stage 3 – Conscious Competence (technician). You know what you know by thinking through it. You have the skills to complete the task, but you need to use considerable time, energy and attention to do it well.

In the third stage, you continue to face unproductive patterns of thought and behavior, but you can resolve them with much effort and focus.

Stage 4 – Unconscious Competence (master). You know what you know by second nature.  You have an expert level of skill that allows you to complete the task with low levels of effort and focus.

In the fourth stage, unproductive patterns of thought and behavior are nonexistent for the most part. Tasks and situations that were once aversive to you are now greeted with acceptance, clarity and, in many cases, joy.

Stage 1 causes the most problems and consequences because you’re totally unaware of the skill you lack. You cannot provide competent representation if you stay stuck in this stage. Being mindful allows you to move from stage 1 to 2, where you are no longer clueless about what you don’t know and need to know.

Stages 2 is a particularly frustrating part of the learning process. This is where your inner critic is most active and you have the strongest doubts about your capacity to learn. With mindfulness, you can open up to the experience, perceive challenges as opportunities, and eventually acquire the skill, even when you feel like quitting. Moving from stage 2 to 3 involves a skill learning process that pulls you out of your comfort zone.

Stage 3  is another challenging part of the learning process.  It’s where you are most likely to compare yourself to the experts and get bogged down with thoughts about not being good enough. Mindfulness, however, helps you let go of unproductive patterns and instead take deliberate action on what needs to be done.  Moving from stage 3 to 4 includes consistent practice of the skill.

Stage 4 is the most desired state because you can effortlessly apply the skill, which generally allows you to produce your best work. But it is impermanent, especially because precedents, procedures and circumstances keep changing. Stage 4 is when the skill becomes more like a habit, which can lead you to operate on auto-pilot, stop learning, and move right back into stage 1 without your being aware.

To maintain stage 4 skill level, you must be able to recognize when you’re being overconfident and failing to keep abreast of changes in the law and its practice. Mindfulness training helps you detect blind spots, pinpoint where you need to grow and develop, keep your ego in check, and avoid lapsing into incompetence due to complacency.

2. Minimizes perfectionism

In a competitive field, most lawyers strive for excellence, not just competence. In doing so, they end up going for perfectionism instead. In psychology, perfectionism is described as a personality characteristic or habit of setting excessively high performance standards and engaging in critical self-evaluations when the performance is imperfect.

Competent lawyers ought to double check, triple check and even quadruple check their work to provide effective representation to clients and build the reputation of their firms. But the desire or need to prove your competence again and again can lead you to expect flawless performance each and every time. And like any human being, you are bound to make mistakes and do things imperfectly.

The harmful form of perfectionism is rooted in an all-or-nothing, rigid mentality, with no room for making mistakes. Building competence, on the other hand, requires taking steps toward where you need to be and making improvements along the way. Admonishing yourself (and others) for not meeting perfect standards impedes creative thinking and learning from mistakes, which are important for gaining competence. Setting unrealistic expectations breeds fear, worry and anxiety over not measuring up.

In Soft Skills for the Effective Lawyer, Randall Kiser points out  the “imposter syndrome” is strongly correlated with perfectionism. Kiser states, “It occurs when we become convinced that we lack the skills required for a particular position or assignment – and everyone is close to discovering the deception we have perpetrated upon them.” One feature of imposter syndrome is that you do not attribute your achievement to internal qualities like ability or skill, but rather to external factors such as luck, personal connections, and working harder to produce the same results that others deliver with less effort.

Consistently practicing mindfulness helps you drop the comparisons, commentaries and criticisms you would otherwise make when learning and applying a new skill. By being mindful, you can observe the inner critic without letting it control your actions, examine your flaws with self-compassion, and accept mistakes while recognizing you can improve with effort. Mindfulness reveals the intense pressure you put on yourself and how this gets in the way of developing competence.

3. Encourages deliberate practice 

When learning a new skill or proficiency, you will be tempted to create big goals that cannot be accomplished in a day, week or month. Mindfulness slows you down and prompts you to break down your big goal into micro-goals, i.e. easier, manageable steps that can be take in one day, followed by ongoing reflection. Small wins build momentum that eventually leads to effective completion.

If you don’t have a regular writing habit, for example, preparing legal briefs can be mentally exhausting and physically draining. You can’t expect to produce a high quality work product when you don’t consistently hone and practice your skills.

Mindful persons are more comfortable with starting small and refraining from planning goals that are too hard to reach within the prescribed time frame. They recognize that getting from point A to point Z is better accomplished through incremental steps over the long haul rather than big leaps in one shot.

A 2009 study found that mindfulness (acting with awareness and accepting without judgment) is intimately linked to improvements of attentional functions and cognitive flexibility. Mindfulness enhances your ability to direct and sustain your focus and concentration on cognitively demanding, tedious or boring tasks that you need to do. It burns away distractions so you can get in the zone, stay engaged, and perform at your peak.

A 2010 study by psychologists Matthew A. Killingsworth and Daniel T. Gilbert of Harvard University concluded that almost 47% of your  waking hours are spent thinking about something other than what you are doing. Although mind-wandering is a natural reflex, it often creates unhappiness, autopilot behavior and unskilled choices.

With mindfulness, you recognize that the mind thinks, plans, daydreams and spaces out all the time, without your conscious action. You just need to keep bringing your attention back to the task at hand and reconnect with your present experience. The more you practice mindfulness, the better you can sustain your attention on the one thing you must do.

4. Enhances problem-solving

A 2012 study found that a certain form of mindfulness boosts creative, divergent thinking. It concluded that open-monitoring training — where the person is open to observe any thought or sensation without focusing on a concept in the mind or a fixed item –  has a positive impact on divergent thinking. The ability to form many new ideas in a context where more than one solution is correct was enhanced when participants, during meditation practice, used the breath to “set the mind free” and observed any thought, sensation or emotion that arose without judgment.

In another 2012 study, the authors found that mindfulness meditation reduces the tendency to overlook novel and adaptive ways of responding due to being “blinded” by past experience. Because mindfulness meditation involves keeping a “beginner’s mind” and “being in the present moment,” the researchers found it reduced cognitive rigidity among study participants. They further discovered that meditators had an increased ability to identify and use simple novel yet obvious solutions despite having experienced a successful, but complex approach in the recent past.

Mindfulness fuels curiosity, which is essential to learning, growing and developing your knowledge and skills for providing effective representation. Mindfulness practices enable you to actively engage with the direct experience (whether unpleasant or pleasant), instead of rely on your judgments, opinions and stories about it. By staying curious, you have a higher capacity to produce more creative, dynamic and effective solutions for complex problems.

5. Rewires the brain for better functioning

A well-functioning brain is critical for acquiring, strengthening and applying your knowledge and skills to your practice. Known as neuroplasticity, the brain has an ability to re-wire and reorganize itself by forming new neural connections throughout life due to your environment, behavior, thoughts, and emotions.

Neuroscience reveals that mindfulness can positively change the brain structure and circuitry in the parts related to learning, memory, concentration, emotional regulation, and communication.

In a 2016 study, researchers found that 8-week Mindfulness-Based Stress Reduction (MSBR) meditation deactivates the amygdala (fight or flight/emotional regulation center) and activates the hippocampus (learning and memory center, which helps regulate the amygdala) and prefrontal cortex (moral reasoning and decision making center).

A 2011 psychiatry research study  also reports that participants who engaged in MSBR meditation had noticeable changes in gray matter density in the parts of the brain associated with learning and memory, emotion regulation, sense of self, and perspective taking. Gray matter is comprised of cell bodies that serve to process information in the brain, and positively correlates with abilities and skills.

Reshaping your brain with mindfulness training allows for ongoing learning experiences that steer you away from overconfidence in your skills and complacency in preparation for a matter.

Conclusion

More and more lawyers and law firms are turning to mindfulness training as an essential tool for sustaining focus, solving problems and delivering high quality representation. An increasing number of scientific studies point to the benefits of mindfulness and its effectiveness in taming a naturally wandering mind.

Mindfulness provides a strong foundation for learning and developing important skills, staying abreast of significant changes, and highlighting dangerous blind spots that can interfere with your providing effective representation.

To learn more, read the related articles, Zeal Meets Zen: How Mindfulness Promotes Diligence in Law Practice and Zeal Meets Zen: 3 Ways to Cultivate Mindfulness in Law Practice. Also check out A Beginner’s Guide to Mindfulness & Meditation in Daily Life.

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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: lhongchou’s photography

DREAMers Face Uncertainty as Trump Administration Ends DACA and Leaves the Fight Up to a Divided Congress

On his campaign trail,  President Trump said he would “immediately terminate” DACA – the Deferred Action for Childhood Arrivals program introduced by the Obama Administration in June 2012.  Although it took several months to make a decision, the Trump Administration issued a memorandum on September 5, 2017, to end the program.

As of this date, no new, initial DACA applications will be accepted. Current DACA holders whose benefits expire on or before March 5, 2018, may file for a renewal, valid for 2 years, by October 5, 2017.

Almost 800,000 eligible, undocumented immigrants have received DACA as a temporary relief from removal, which includes work authorization valid for two years. Commonly known as “DREAMERs,” DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, have lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

DACA, however, has always been a temporary relief subject to rescission by a new Administration and which provided no path to lawful nonimmigrant status, permanent residence, or citizenship.

The DACA program was introduced by the Obama Administration in a  June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children. Critics viewed it as an unconstitutional use of power by the Executive Branch. Supporters saw it as an extension of prosecutorial discretion related to immigration enforcement priorities and necessary protection for undocumented immigrants who came to the United States as children and grew up in the country.

Federal court litigation ensued, in which a Texas-led coalition of 26 states  — including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin — filed a lawsuit to stop the expansion of DACA and the introduction of a similar relief, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In January 2017, after taking office, President Trump stated in an interview with ABC’s David Muir that a new policy would be issued within weeks, but that DACA recipients “shouldn’t be very worried.” He further commented: “I do have a big heart. We’re going to take care of everybody…But I will tell you, we’re looking at this, the whole immigration situation, we’re looking at it with great heart.”

Meanwhile, Attorney General Jeff Sessions continued to hold a hardline, calling DACA an “unconstitutional” act by Obama that has “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” Sessions made the announcement in a September 5th news conference that the Trump Administration will phase out the DACA program.

On Twitter, following Sessions’ remarks, President Trump wrote, “Congress now has 6 months to legalize DACA (something the Obama administration was unable to do.) If they can’t, I will revisit this issue!”

In a written statement issued after Sessions’ announcement, Trump said, “I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

“We will resolve the DACA issue with heart and compassion — but through the lawful democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” Trump added.

There are at least four bills being discussed in Congress that provides protection to DREAMErs. They include the Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C; Recognizing America’s Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.; American Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.; and BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo. The first three creates a path for citizenship or permanent resident status if applicants meet certain requirements. The fourth seeks to codify the current DACA program into law and extend it for three years (but offers no path to permanent residence or citizenship), giving Congress more time to enact comprehensive immigration reform.

Trump gave Congress six months to fix the broken immigration system, but there are diametrically opposed viewpoints within the Senate and House: some call for tougher border security and immigration enforcement, while others seek protection from removal and a pathway to permanent residence and citizenship for certain undocumented immigrants who came to the U.S. as minors.

Congress has struggled for several years to resolve big legislative issues like immigration. As such, six months make a very short period to tackle the monumental problem of DACA holders losing protection from removal and authorization to work in the United States.

With a divided Congress, the fate of DREAMers is uncertain. In addition to filing for DACA renewal, if eligible, and tracking legislative action in Congress, DACA holders should consult an immigration attorney to discuss other more concrete, existing immigration options.

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: Lian Xiaoxiao