2019 Public Charge Rule: 3 Key Changes Set to Take Effect on October 15

On August 14, the U.S. Department of Homeland Security (DHS) published the Final Rule on the public charge inadmissibility ground, which amends the regulations for section 212(a)(4) of the Immigration & Nationality Act (INA).

Highly controversial and several months in the making, the Final Rule gives U.S. Citizenship & Immigration Services (USCIS) more discretionary power to deny Form I-485, green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground.

The new rule is set to take effect on October 15, 2019, i.e. 60 days after its publication. It will affect applications filed (received by the agency) or postmarked on or after that date.  The U.S. Department of State (DOS) is expected to further revise the Foreign Affairs Manual (FAM) to incorporate DHS’ new public charge rule. 

[UPDATE: On October 11, 2019, federal judges in three separate cases enjoined USCIS from implementing and enforcing the new public charge rule and postponed the effective date of the Final Rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States. Until final decisions in these cases are issued or the injunction is lifted, USCIS will continue to apply the existing rule.]


Public Charge Inadmissibility Ground Under Section 212(a)(4)

The long-existing section 212(a)(4)(A) makes a person inadmissible to the U.S. if he or she is “likely at any time to become a public charge.”  Whether a person is barred from the U.S. on public charge ground depends on the totality of the circumstances.

Section 212(a)(4)(B) of the INA instructs USCIS and U.S. consular officers to consider the following factors:

  • Age
  • Health
  • Family status
  • Assets; resources; and financial status
  • Education and skills

The Form I-864, Affidavit of Support, from the petitioner (sponsor) or joint sponsor is also an important factor to consider in certain immigrant visa or green card cases.

The statute does not define “public charge.” But since 1999, USCIS and DOS guidelines have defined it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

The 2019 Final Rule involves a new definition of public charge and includes 3 key changes:

1) Expands the range of public benefits that may be considered when determining whether applicants who have received or are currently receiving benefits are inadmissible on public charge ground.

Under the Final Rule, public benefits are no longer limited to mean cash assistance programs, such as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance. The term “public benefit” has expanded to include previously excluded programs, such as:

  • Federally funded Medicaid (with certain exclusions, e.g. receipt of Medicaid for emergency care; services funded by Medicaid but provided under the Individuals with Disabilities Education Act; school-based services provided to persons who are at or below the oldest age eligible for secondary education as defined by state or local law; Medicaid benefits received by a person under age 21; and Medicaid benefits received by pregnant women and women for up to 60 days after giving birth.)   
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) 
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

2) Creates a single duration-based threshold for the receipt of public benefits as part of the definition of public charge.

The Final Rule notes that an applicant is a public charge if he or she receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. USCIS notes, for example, the receipt of two benefits in one month counts as two months.

The rule applies not only to green card or immigrant visa applicants. It also requires applicants seeking a change or extension of nonimmigrant status to show they have not (since initially obtaining the status) received public benefits for more than 12 months in total in any 36-month period.

Any duration (and amount) of public benefits received may be considered in the totality of the circumstances test.  Adjudications officers will only consider benefits received by the applicants and will not take into account benefits used by their children or other family members.

3) Defines “heavily weighted positive factors” that reduce the likelihood of becoming a public charge and “heavily weighted negative factors” that increase the likelihood of becoming a public charge. 

Among the heavily weighted negative factors is having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

Other negative factors include being younger or older than working age; having a health condition that is likely to require extensive treatment and lacking private health insurance or the means to pay medical costs; having limited income or resources; not being employed, a full-time student or a primary caregiver; previously found inadmissible on public charge grounds; and using or previously using public benefit programs.

Heavily weighted positive factors include the applicant’s household has financial assets or resources of at least 250% of the federal poverty level, or the applicant earns an income of at least 250% of the federal poverty level for the household size.

Other positive factors are the applicant is authorized to work, is gainfully employed, and has private health insurance that is not subsidized by the Patient Protection and Affordable Care Act.

The shift toward the weighing of positive factors and negative factors means the Form I-864, Affidavit of Support, can no longer be relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

Introduction of Form I-944, Declaration of Self-Sufficiency

USCIS introduced the new Form I-944, Declaration of Self-Sufficiency, which collects information on the applicant’s family status; assets, resources and financial resources; and education and skills. More information is in the Form I-944 instructions. Both are currently in draft format and not yet published for use.

When the Final Rule goes into effect, it is expected that Form I-485 adjustment of status/green card applicants will need to submit a completed Form I-944 with supporting documents. Applicants requesting a change or extension of status through a Form I-129 or Form I-539 may also have to file a completed Form I-944 if USCIS elects to require one in a Request for Evidence.

Posting of Public Charge Bonds

Section 213 of the INA provides for the posting of a public charge bond in cases where applicants need to demonstrate they will not become a public charge. The Final Rule states that applicants who are initially found likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $8,100.

The bond may be terminated only upon the immigrant’s death, permanent departure from the United States, five years as a lawful permanent resident, or naturalization. The bond will be breached if the immigrant receives public benefits for more than 12 months in total within any 36-month period.

Statutory Exemptions Still Apply

Congress exempted certain classes of immigrants from the public charge inadmissibility ground. The Final Rule includes provisions recognizing the classes of individuals who are exempt, e.g. refugees, asylees, widow(er)s of U.S. citizens, VAWA self-petitioners, and Afghans and Iraqis with special immigrant visas.

2019 Final Rule Will Add Complexities

The public charge inadmissibility ground applies to persons requesting admission to the United States as an immigrant or nonimmigrant. It does not apply to permanent residents filing for naturalization (Form N-400) or to conditional permanent residents applying to remove the conditions on their residence (Form I-751).

When possible, persons who are seeking to adjust to permanent resident status or extend or change status should file their applications before the new public charge rule goes into effect.

Applications that are filed (received by the agency) or postmarked on or after October 15 will be subject to the Final Rule, which gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground.

The new procedures under the Final Rule are likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation. 

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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 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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Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.

Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?

U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:

  • Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
  • File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
  • Show they entered into the marriage in good faith and not solely for immigration benefits
  • Are admissible to the United States
  • Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).

How to Apply for Widow(er) Benefits

If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.

Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.

A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.

Admissibility Requirement

A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). A Form I-864W, Request for Exemption for Intended Immigrant’s Affidavit of Support, should be filed with the Immigrant Visa request or Adjustment of Status application.

Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. Whenever possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar.

If there are no significant negative factors, and a previously filed I-130 has been converted and approved as an I-360, USCIS will normally exercise discretion favorably in a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, of a widow(er) who is inadmissible due a prior removal order.

Children of Widow(er) of U.S. Citizen

Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements. 

Consult a Qualified U.S. Immigration Attorney

A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.

For information on other possible remedies for surviving relatives, read our related articles:

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

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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 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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Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

U.S. federal regulations require the approval of a Form I-130, family-based immigrant petition to be revoked when the petitioner dies. This stops the immigration process if the beneficiary has yet to obtain permanent resident status on the date of the petitioner’s death. But an exception under 8 C.F.R 205.1(a)(3)(i)(C) allows USCIS to, as a matter of discretion, reinstate the approval if it determines that a revocation is inappropriate due to humanitarian reasons.

Who is Eligible for Humanitarian Reinstatement?

Humanitarian reinstatement is only available to the principal beneficiary of an approved petition. It is not a remedy for persons whose petitions are still pending or for derivatives of a principal beneficiary.

For example, a married son of a U.S. citizen petitioner in the F3, family-based category, may still immigrate to the United States if the petitioner dies before he gets his green card, as long as the I-130 petition was approved before the death. But his spouse and minor children will not benefit from humanitarian reinstatement and cannot immigrate through the deceased’s petition. Instead, the principal beneficiary will need to file petitions for his spouse and children after he becomes a permanent resident.

In family-based immigration, most applicants are required to submit a Form I-864, Affidavit of Support. Their work history or other factors can sometimes make up for the lack of a Form I-864, under the totality of the circumstances test. In either case, the petitioner’s death does not protect them from the public charge inadmissibility ground under INA 212(a)(4).

If you were required to provide a Form I-864 and the petitioner died, you need a Form I-864 from a substitute sponsor, who must be a U.S. citizen or lawful permanent resident, at least 18 years old, and your spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. Otherwise, a Form I-864W, Request for Exemption for Intended Immigrant’s Affidavit of Support , may be submitted when appropriate.

How to Apply for Humanitarian Reinstatement

Humanitarian reinstatement may only be requested by the principal beneficiary when the petitioner of an approved I-130 petition has died.

Whether to reinstate the approval for humanitarian reasons, despite the petitioner’s death, is an entirely discretionary decision, i.e. the positive factors outweigh the negative factors. A denial by USCIS is not subject to appeal, although the agency may consider a timely motion to reopen or motion to reconsider.

There is no specific application form to submit or filing fee to pay to ask for humanitarian reinstatement. You do, however, need to send a written request with supporting documents to the USCIS office that originally approved the petition, including:

• Full name of the deceased petitioner and the principal beneficiary

• Any A-numbers of the deceased petitioner and the principal beneficiary

• The receipt number for the approved petition

• The petitioner’s death certificate, plus certified English translation if document is in a foreign language

• Form I-864, Affidavit of Support, from a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable


• Evidence that a favorable exercise of discretion is warranted, such as:

  • Hardships to family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
  • Advanced age or health concerns;
  • Lawful residence in the United States for a lengthy period;
  • Ties or lack thereof to your home country;
  • Undue delays in processing the petition
  • Any other positive factors that support a reinstatement

Consult a Qualified U.S. Immigration Attorney

Humanitarian reinstatement processing can be uncertain and lengthy. There is no standardized application form to file and no receipt notice acknowledging USCIS is reviewing the request. In addition, some USCIS offices will not consider repeated requests for humanitarian reinstatement.

Consult a qualified U.S. immigration attorney to help you submit one single, complete and approvable request for humanitarian reinstatement, with all the supporting evidence.

For information on other possible remedies for surviving relatives, read our related articles:

Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

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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 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.

SUBSCRIBE           CONTACT

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Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.

Normally, a pending petition must be denied or an approved petition must be revoked if the petitioner dies before the beneficiary has already obtained the green card, based on federal regulations. But INA 204(l) preserves U.S. immigration benefits for certain surviving relatives with pending or approved petitions.

A December 16, 2010 USCIS Policy Memorandum, titled Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, outlines who is protected by section 204(l) and how the relief works.

Who is Protected by Section 204(l)?

Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States. It provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or other principal applicant dies.

You may be eligible for 204(l) relief if you are a:

• Principal or derivative beneficiary of a pending or approved I-130 family-based petition, when the petitioner died;

• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died;

• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died;

• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died;

• Derivative of a T or U nonimmigrant visa holder (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5), admitted as a derivative, and the principal (T-1 or U-1) visa holder has died;

• Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) has died.

Residence Requirement

Certain petitions have more than one beneficiary. For 204(l) relief to apply, at least one beneficiary or derivative beneficiary must be residing in the United States at the time of the death and continues to reside in the United States. If one beneficiary meets the residence requirement, all the beneficiaries can benefit from section 204(l) relief.

Residence is your primary home or your “principal, actual dwelling place in fact, without regard to intent.” Residence is not the same as physical presence or as having lawful nonimmigrant status in the United States. You may qualify while briefly abroad if you can show that your primary home is in the United States. Incidental travel for participating in business trips, taking a vacation, or visiting family abroad does not affect 204(l) eligibility.

Admissibility Requirement

204(l) applicants may be found inadmissible under INA 212 at the time of the immigrant visa or adjustment of status interview. Inadmissibility grounds include INA 212(a)(4)(public charge), INA 212(a)(9)(B)(unlawful presence), and INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits).

Family-based applicants are normally required to submit a Form I-864, Affidavit of Support, or Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, to show they will not become a public charge to the United States. The death of the petitioner does not change this requirement.

If the petitioner dies, there has to be a Form I-864 from a substitute sponsor who is a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant. Otherwise, a Form I-864W may be submitted when appropriate.

You may still apply for inadmissibility waivers that require “extreme hardship to a qualifying relative” — such as the INA 212(a)(9)(B)(v) waiver for unlawful presence and the INA 212(a)(6)(C)(i) waiver for fraud or willful misrepresentation — if the qualifying relative is also the relative who died. USCIS will consider the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship, i.e. USCIS will assume that the death of the qualifying relative amounts to extreme hardship for waiver purposes.

Your case, however, must still warrant the favorable exercise of discretion (positive factors outweigh the negative factors) for USCIS to grant the waiver. Furthermore, you must have a qualifying relative who was already a U.S. citizen or permanent resident at the time of the death to be eligible for the waiver. If the deceased relative is not a qualifying relative for waiver purposes, you still need a qualifying relative to be eligible for the waiver. For example, if the principal beneficiary of an I-130 petition dies before he becomes a permanent resident, his spouse (derivative beneficiary) may lack a qualifying relative to apply for a waiver if she is found inadmissible.

“Public Interest” Standard and Favorable Exercise of Discretion

Even when section 204(l) applies, USCIS may still deny the petition, as a matter of discretion, if the approval would not be in the “public interest.” This exercise of discretion is not subject to appeal, although USCIS may review a timely motion to reopen or motion to reconsider.

USCIS has stated, “USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. ”

Adjustment to permanent resident status, through the filing of a Form I-485 application, is also a discretionary relief that USCIS may deny as a matter of discretion. Furthermore, certain applicants are not eligible at all for adjustment and must depart the United States to apply for an immigrant visa at the U.S. Consulate abroad.

What is the Effective Date of Section 204(l)?

Section 204(l) became law on October 28, 2009. The provision applies only to petitions and applications adjudicated on or after that date. It applies to cases where the petitioner or qualifying relative died before October 28, 2009, but the petition or application was pending on that date or adjudicated after that date.

USCIS has stated it will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if 204(l) would permit approval. If USCIS denies a petition or application on or after October 28, 2009 without considering whether 204(l) applies, the agency must reopen the case on its own motion.

How to Apply for 204(l) Relief

There is no specific application form to submit or filing fee to pay to request 204(l) relief. To apply for 204(l) benefits, you should submit a letter to USCIS explaining your eligibility and provide supporting documents. If a petition is pending, you need to ask for an approval under 204(l) despite the death. If the petition was approved prior to the death, you need to request the reinstatement of the approval under 204(l).

USCIS instructs applicants to include the following with a 204(l) request:

• Full name of the deceased relative, the principal applicant and any derivative beneficiaries

• Any A-numbers of the deceased relative, the principal applicant and any derivative beneficiaries

• The receipt number for the underlying petition or application

• The relative’s death certificate, plus certified English translation if document is in a foreign language

• Proof of residence in the United States at the time of the death up until the present time by at least one beneficiary (e.g. rental lease or mortgage, utility bills, school records, or pay stubs.)

• Form I-864, Affidavit of Support, by a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable.

To determine where and when to file the section 204(l) request, you may refer to the USCIS If-Then chart on its website, which is replicated below:

IFTHEN

Your visa petition (e.g., Form I-130 or Form I-140) or Form I-730 was pending when your relative died and at least one beneficiary, or derivative beneficiary, resided in the United States when your relative died and continues to reside in the United States

Send your written request to the USCIS office currently processing your case (the address is on the receipt notice (Form I-797) or, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice)

Your petition was already approved when your relative died AND you are not ready and/or able to file Form I-485 yet
Send your written request to the office that approved your petition

Your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485

Send your written request with your Form I-485 package per Instructions for Form I-485

You have already filed Form I-485 (whether or not your petition was pending or already approved)

Send your written request to the USCIS office having jurisdiction over your application

You are in T or U nonimmigrant status

Send your written request to the Vermont Service Center
You are in asylee status



Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-485

Humanitarian reinstatement is not be confused with 204(l) relief. If, however, you believe the regulations allowing humanitarian reinstatement also apply to you, you should submit a single written request asking USCIS for both types of relief.

Consult a Qualified U.S. Immigration Attorney

Because there is no standardized application form, there is no means for USCIS to issue a receipt notice for a 204(l) request for relief. It is difficult for applicants to track progress or receive updates on such cases.

Work with a qualified U.S. immigration attorney to prepare and file a clear, properly documented 204(l) request with USCIS. The attorney can also help you notify the U.S. Department of State that you are asking for this relief from USCIS, if you will be applying for an immigrant visa at the U.S. Consulate instead of seeking to adjust to permanent resident status within the United States.

For information on other possible remedies for surviving relatives, read our related articles:

Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

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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 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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Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2

Sleep debt – especially when coupled with extreme stress and mental disorders – can result in lawyer misconduct and ethics violations. Sleep deprivation impairs your cognitive abilities, energy level, mood and mental health. Thus, left unchecked, it is bound to have ripple effects on your work, life and overall performance. As such, in certain situations, it may be considered a mitigating factor in attorney disciplinary matters.

What is the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action?

The Minnesota Supreme Court has stated the purpose of attorney discipline is “not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.”

The court reviews three factors when determining the appropriate sanction: 1) the nature of the misconduct; 2) the cumulative weight of the disciplinary violations; and 3) the harm to the public, the legal profession, and the administration of justice. The court considers the facts of each case, including aggravating and mitigating circumstances, and uses similar cases as guidance.

In March 2018, the Minnesota Supreme Court issued a decision, In Re: Petition for Disciplinary Action Against Adam William Klotz, in which sleep deprivation was considered a mitigating factor. The Director of the Office of Lawyers Professional sought disbarment due to misconduct involving lying to the Director, not cooperating with the Director’s investigation, creating a false and misleading document, misappropriating client funds, and neglecting and lying to clients. The court agreed with the referee’s recommendation to impose indefinite suspension with no right to petition for reinstatement for 18 months.

The Director disputed the referee’s finding that the multiple stressors in Klotz’s life were a mitigating factor. The court noted, “We have recognized that extreme or extraordinary stress can be a mitigating factor.” Even if there is no proof that turmoil in the attorney’s life caused the misconduct, it may still be considered a mitigating factor.

The Director argued that the stress Klotz faced was not sufficiently extreme or extraordinary to mitigate misconduct. The court responded as follows:

But we have never examined whether particular stressors in an attorney’s life were objectively so extreme or extraordinary as to warrant mitigation. In prior cases, we have examined the particular facts and circumstances facing each attorney and whether the record showed that those stressors constituted extraordinary stress for that attorney. To create the legal threshold the Director requests would impose an objective standard onto what is an inherently subjective matter. Accordingly, we decline the Director’s invitation to set a legal threshold for the types of stress eligible for mitigation. We instead look to the record for factual support of any claims of mitigation due to extreme stress.

The court found:

Here, the record establishes that, after his child was born, the stress that Klotz experienced increased by a significant amount. The referee found that Klotz suffered stress related to his son’s sleep problems, suffered substantial sleep deprivation, and experienced stress related to caring for his son while his wife worked long hours. The referee found that the stress Klotz experienced was “among the causes of his inability to manage his own practice and the ethical violations that resulted,” and “compound[ed] and exacerbate[d] respondent’s mismanagement of his practice.” Because evidence in the record supports this finding, the referee’s conclusion that extreme stress was a mitigating factor was not clear error.

Sleep problems have been rejected as a mitigating factor in other cases. For example, in an earlier 2003 case, In Re Petition for Disciplinary Action against Alan J. Albrecht, the Minnesota Supreme Court discussed sleep apnea in determining appropriate attorney discipline. The court stated:

We have held that when a mental or physical disability is put forward as a mitigating factor the attorney must show by clear and convincing evidence that he or she has the disability, the disability caused the misconduct, the attorney is undergoing treatment for the disability and making progress in recovery, the recovery has halted the misconduct, and the misconduct is not likely to reoccur.  In re Merlin, 572 N.W.2d 737, 741 (Minn. 1998).

The court agreed that sleep apnea could lead to attorney misconduct:

Here, the referee relied on the testimony of Dr. Theodore M. Berman to conclude that Albrecht’s sleep apnea mitigated his misconduct.  Dr. Berman testified that Albrecht had severe sleep apnea, symptoms of which include daytime hypersomnia, impairment of memory and attention to detail, and lack of concentration.  Dr. Berman further testified that the allegations of misconduct by Albrecht, such as failing to follow through and failing to return phone calls, are consistent with the effects of sleep apnea.  There was also evidence presented at the hearing that, at the time of the hearing, Albrecht was being treated for sleep apnea.  Thus, there was evidence before the referee that would permit the finding that Albrecht suffers from sleep apnea, that the symptoms of sleep apnea could result in Albrecht missing dates, failing to return calls, and sleepiness during the day, and that Albrecht was undergoing treatment for the sleep apnea at the time of the hearing

Nevertheless, the court concluded:

Other than Albrecht’s own testimony, however, there is no evidence in the record to support a finding that Albrecht was making progress in his recovery from sleep apnea.  Further, there is no evidence that the recovery has halted the misconduct or that the misconduct is unlikely to recur.  Because there is no evidence that would support such findings, we conclude that the referee’s findings and conclusions that Albrecht’s sleep apnea is a mitigating circumstance are clearly erroneous.

Sleep apnea has been discussed in attorney disciplinary matters in other jurisdictions. For example, in March 2019, the New Hampshire Supreme Court issued a decision in which the Professional Conduct Committee recommended a three-year suspension, with 18 months stayed, for attorney Joshua Mesmer, who claimed sleep apnea caused his inaction on client matters and contributed to his misrepresentations.

The Committee pointed out that Mesmer lied to his clients about the work he was not doing, falsely attributed unfavorable outcomes to court corruption, overbilled his clients, and then aggressively pursued payment. The Committee noted, “Though Mr. Mesmer was inattentive to many matters in this litigation, he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned.”

In another case, Canadian lawyer Vassilios Apostolopoulos — who was disbarred in 2002 and reinstated by the Law Society of Upper Canada 10 years later — blamed obstructive sleep apnea as the cause of his mood disorder, which affected his cognitive abilities. He was misdiagnosed and treated wrongly for clinical depression.

When the treatment for depression and undiagnosed sleep apnea took its toll, he committed two violations: neglecting to file proper documents in a mortgage case and misappropriating a large sum of client funds. Following his disbarment, he was eventually diagnosed with sleep apnea and began proper treatment. This allowed him to get reinstated as a licensed lawyer.

Avoid Sleep Debt or Take Protective Measures While You Pay it Down

When you are sleep deprived, you are more likely to make mistakes, overlook key details, and fail to recall information. Lack of sleep also prevents you from learning new things, making sound judgments, prioritizing what needs to be done, and engaging in thoughtful decision-making.

Instead of relying on sleep debt as a justification for ethics violations or a mitigating factor for disciplinary action, you need to avoid it in the first place. Tips for getting good sleep include: soak in sunlight during the day; avoid screen time on computers, smartphones, and television at least 90 minutes before you go to bed; reduce your caffeine intake; have a consistent bedtime, preferably between 9 pm and 11 pm; create a nightly routine such as sitting quietly, meditating, doing restorative yoga, or reading light fiction before you go to bed.

While you are paying down your sleep debt, you need to take protective measures against its effects, such as fatigue, impaired stress response, and slower executive functioning.

First, get the professional support you need, whether it’s seeing a therapist or consulting a sleep disorder specialist. You may also contact Lawyers Concerned for Lawyers (LCL), which provides a free, confidential Lawyers Assistance Program for Minnesota lawyers, judges, law students and their immediate family members. This program offers help to those affected by alcohol, drugs and other addictions; depression, anxiety and other mental illnesses; stress and other life-related problems.

Second, develop work-related habits and practices that will help steer you away from ethics traps. When you have sleep debt, it’s especially critical to take detailed meeting notes; document communications in writing; maintain and refer to up-to-date filing checklists; double check or triple check your work; have an accountability partner to point out your blind spots; refuse cases with strict and aggressive timelines for which you lack the bandwidth; and focus on areas where you are highly proficient and knowledgeable, rather than venture into new areas with steep learning curves.

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For more information on what creates Sleep Debt and its effects, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor) for Lawyer Misconduct – Part 1.

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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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