5 Benefits of Having Immigration Counsel at In-Person Interview with USCIS

When you receive notice of your in-person interview with U.S. Citizenship & Immigration Services (USCIS), you might be tempted to attend it without counsel to save on legal fees.  Many applicants, however, end up spending more money down the line because they did not have a qualified attorney helping them deal with unexpected problems at the interview.

If you filed the application or petition on your own, you could tell yourself the wait is over and the interview is just a formality before USCIS grants the immigration benefit. If you had counsel helping you with the filing, you might decide her presence at the interview is excessive because your important questions have already been addressed.

But the advantages of having reputable, experienced counsel appear with you at the interview far outweigh the disadvantage of incurring legal fees for representation.

In-person interviews with USCIS are necessary to obtain most immigration benefits, including asylum, permanent residence (green card) and naturalization (U.S. citizenship). The interview usually occurs at the USCIS Field Office with jurisdiction over the applicant’s place of residence.

As of October 2, 2017, under the Trump Administration, USCIS began to phase-in interviews for the following:

• Employment-based adjustment of status/green card applications  (Form I-485, Application to Register Permanent Residence or Adjust Status) filed on or after March 6, 2017, in the EB-1, employment based first preference, EB-2, employment based second preference, and EB-3, employment based third preference.

• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, except in certain situations such as when a criminal record or unlawful presence existed, applicants in these categories were not scheduled to attend an in-person interview with USCIS for their applications to be adjudicated.

USCIS plans to gradually expand interviews to other immigration benefits. It notes the change is in line with Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s  efforts to improve the detection and prevention of fraud and enhance the integrity of the immigration system.

Here are 5 main benefits of having immigration counsel at your in-person interview with USCIS:

1. Provide protection against excessive screening or vetting

The in-person interview is a screening and vetting procedure for persons seeking immigration benefits to reside or stay long-term in the United States. While USCIS officers are trained to be professional, courteous, and respectful of your legal rights, some may turn (or may seem) hostile when there is reason to believe the applicant is committing immigration fraud, is a danger to the community, or is ineligible for or undeserving of the benefit sought.

Interviews with USCIS are not supposed to be adversarial in nature. They are meant to gather complete and accurate information (both favorable and unfavorable) to properly adjudicate the case, not to find a reason to deny the requested benefit.

Nevertheless, due to shifts in immigration enforcement priorities under the Trump Administration, there are now more reports of applicants being arrested and detained by U.S. Immigration & Customs Enforcement (ICE) at their interviews  with USCIS. These cases normally involve beneficiaries attending I-130 interviews who have prior or outstanding removal orders and have remained unlawfully in the country.

Prior to the interview, the attorney can review your criminal record and immigration history to evaluate the risks of interview attendance. While attorneys have no authority to stop ICE from lawfully apprehending or detaining an applicant at the USCIS interview, they may ask critical questions to verify where the applicant will be held and the next steps in the detention and removal process. Bear in mind, however, that absent an express agreement, the attorney is not obligated to represent you beyond the scope of the interview with USCIS.

In less complicated cases — such as where ICE apprehension or detention is unlikely because the only violation is a visa overstay — your having counsel at the interview is still crucial. Attorney appearance encourages the USCIS officer to remain professional and courteous and stick to relevant issues.

2. Clarify unclear questions and complex issues

At the in-person interview, the USCIS officer may ask for any information related to questions on the application forms, your eligibility for the benefit sought, your marital history, your manner of entry into the U.S., your admissibility to the U.S. (such as any arrests, charges or convictions, or misrepresentations made to an immigration official), your educational background, and your past and present employment (including the documents you used to obtain a job in the United States).

When a USCIS officer asks a vague or unclear question, the attorney may request clarification to ensure the applicant understands what is being asked. If the attorney knows the answer is factually or legally incorrect, she may also ask the officer to rephrase the question or point to objective records in the file to show the applicant is mistaken.

3. Help prevent unnecessary delays and complications

USCIS stated the new interview requirement, which became effective on October 2, 2017,  will amount to approximately 17% of the agency’s total workload. Thus, longer processing times and increased delays in all adjudications , especially interview-based applications, are expected.  These days, USCIS is taking one year or more to adjudicate green card and naturalization applications, as opposed to six to nine months in the past.

At the interview, you should strive to present all the necessary information and requested documents to facilitate approval. Otherwise, it may take several weeks or months for USCIS to issue a Request for Evidence or Notice of Intent to Deny, to which you must respond within a specified time frame (e.g. 87 days and 30 days, respectively.)

Your attorney can help you figure out what you need to bring to the interview, based on the instructions in the interview notice and the unique facts of your case. The attorney is also better equipped to evaluate whether a favorable decision or adverse notice is expected, depending on what occurred at the interview, and prepare you for next steps.

4. Serve as an advocate

Unlike in court hearings before a judge, interviews with USCIS do not involve your attorney asking you direct questions to solicit testimony. The USCIS officer asks the questions and  you provide the answers.

Questions on issues that may seem inappropriate or unimportant to you might be relevant to your eligibility for the immigration benefit and be in line with USCIS policy. Having counsel at the interview helps you determine when it’s better to answer, ask for clarification, or object (for good cause).

Your attorney cannot respond to questions the USCIS officer directs to you or coach you on how to respond to questions. She may, however, advise you on legal issues or raise objections to inappropriate questions or, as a last resort, ask to speak with a supervisor (particularly if the interview becomes argumentative or antagonistic).

Having an attorney present at the interview helps to protect and advocate your legal rights. If USCIS instructs you to provide a sworn, written statement on a controversial point, the attorney can help verify that you understand what you are providing and signing.

Counsel can further help you to avoid misrepresenting material facts to the USCIS officer and explain unfavorable information to defuse a difficult situation. They advise you on pitfalls and weaknesses in your case that will likely be at issue in the interview. They determine when and how to best present testimony and documentary evidence to highlight positive factors or offset negative factors in your case.

It is rare for interviews to be  video-recorded. Without counsel, it will be just the USCIS officer and you (and possibly your interpreter) in the interview room. The officer will takes notes for the file, but you typically will not have access to them unless you submit a Freedom of Information/Privacy Act Request, which normally takes several months to process. Moreover, in the FOIA response, the agency may redact, or black out, any information protected by one of the nine FOIA exemptions to prevent certain harms, such as an invasion of privacy, or harm to law enforcement investigations.

An attentive attorney at the interview will carefully observe the discussion and take informative notes on questions asked and answers given. If USCIS issues a Notice of Intent to Deny or other adverse notice based on purported discrepancies and inconsistencies at the interview, an attorney may provide a credible explanation on what was said in the interview and how it was conducted. It won’t just be your word against the allegations of the interviewing officer.

5. Add credibility to your claim

Having an attorney present does not mean you have something to hide. On the contrary, many USCIS officers prefer applicants to bring counsel to the interview for it to run more smoothly and efficiently.

In addition, because attorneys have a duty of candor to the tribunal, their presence generally adds credibility to your claims.  An attorney cannot knowingly present false information or false documents or perpetuate fraudulent claims without running afoul of the professional responsibility rules.

The attorney can help prepare you for interview by describing what questions to expect and which issues are likely to arise, and how to best address them. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Conclusion: Bring Counsel to the Interview

There are many applicants who attend their interviews without counsel and get their applications or petitions approved. But these cases are usually very well-documented with positive information and no adverse factors to consider. It is hard to know exactly how your interview will go.

Many things can go wrong at the interview with USCIS, which may lead to severe consequences including denial decisions and even a Notice to Appear in removal proceedings before an Immigration Court. For example, the USCIS officer may conduct separate interviews of the U.S. citizen (I-130 petitioner) and his foreign national spouse (I-485 applicant) and determine they entered into a sham marriage for immigration purposes. The officer may review the entire immigration history and/or criminal record of a naturalization applicant and find that he is not only ineligible for citizenship, but is subject to removal from the United States.

Even if you prepared and filed the application or petition with USCIS on your own, or with the help of an immigration consultant or online immigration service, you may have counsel enter her appearance at the interview by submitting a Form G-28, Notice of Entry of Appearance as Attorney, to the USCIS officer.  Once the G-28 is accepted, the appearance will be recognized until the matter is concluded (absent a withdrawal of representation).

In some cases, the interview goes so well that having counsel seems to be an added expense with no benefit. But more than likely, counsel’s presence at the interview contributes to the successful outcome, even though you might not be able to measure the effects. And when the stakes are high, it’s better to be over-prepared than under-prepared and to err on the side of caution by having counsel at the interview.

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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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Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree

2. the employer normally requires a degree or its equivalent for the position

3. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

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

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Deadlines & Daily Habits: Why Time Blocking Works

Time blocking (or time boxing) is an essential productivity technique that involves setting an appointment (with yourself) to do a single, high-cognitive demand task or a batch of similar, low-cognitive demand tasks in a specific time block.

It allows you to prioritize important, deadline-driven or time-sensitive matters, make progress on growth-based projects, and communicate with clients and prospects without giving them 24/7 access to you. Ultimately, time blocking leads to strategic deadlines and productive habits that help you get important tasks done well and on time.

Here are three reasons why time blocking works:

1. Develop laser-like focus

Because a time block is a pre-planned, distraction-free period for tackling your most important tasks (MITs) or one big thing, it gives you the opportunity to practice the skill of concentrating on cognitively demanding, high-value work without giving up easily.

Instead of jumping from task to task or giving in to urges to check social media or surf the web, you learn to sit with discomfort and stay committed to the task at hand.

Focus, however, requires willpower – the mental energy to resist short-term temptations to make long-term gains. And willpower is a limited resource. With time blocking, you  build daily habits that move you forward and get you unstuck, without relying too much on self-control.

Time blocks allow you to hone in your efforts on a single big task that must be done, or a batch of low-value tasks that will accumulate if you ignore them too long. Decision fatigue is reduced when you know exactly what task you need to tackle, how long you should spend on it, and when to break from it.

By routinizing and batching low-level tasks, you reserve your energy, attention span and concentration for complicated tasks that require laser-like focus.

2. Produce higher-quality work

Time blocking gets you in the zone and increases flow – the mental state in which you are absorbed in and fully involved in the task at hand – by reducing distractions and minimizing interruptions.

When you invest your cognitive abilities on a complex task ( instead of scatter your attention on busy work), you make fewer mistakes, notice significant details, and produce more creative, higher-level work. Time blocking encourages you to postpone mindless activities and time wasters so you can attend to your more important and/or urgent work.

3. Speed up progress on priorities

Time blocking encourages conscious choices in which you say yes to essentials (do list) and no to non-essentials (don’t list)

Rather than overcommitting or succumbing to endless obligations, you set clear boundaries and realistic expectations with others.

If you habitually reply to emails and text messages within 5 minutes of when you get them, the sender will come to expect the same or similar response time for all correspondence. If you answer every telephone call regardless of what time they come in and what you are doing, you teach the caller that their problem always matters more than your own. If you keep an open office so anyone can walk into your office at any time, observers will conclude it’s fine to interrupt you regardless of what’s on your own agenda.

Being highly responsive makes you procrastinate on taking action on your own, highest priorities. By having time blocks for when you meet with clients and colleagues, take telephone calls, and respond to emails, you set appropriate boundaries that allow reasonable access to you without compromising your most important work.

Time blocking minimizes multitasking (time suck) and maximizes single tasking (time saver)

The ability to multitask is generally viewed as a valuable skill in our pseudo-productive world. Performing two or more tasks at one time seems to be the way to go when time is short and you have many things to do. But as Dave Crenshaw points out in the The Myth of Multitasking, the most you can do is “switch tasking” (switch back and forth between two or more tasks) and “background tasking” (do two or more mundane tasks like listen to the radio while you drive or watch TV while you exercise.)

The human brain is a sequential processor: It cannot pay attention to more than one thing at a time. Multitasking is not possible when (1) at least one of the tasks requires focus or effort to complete, and (2) the tasks involve similar types of brain processing.

Constantly shifting your attention makes you feel busy, but actually makes you less productive. When you stop what you’re doing to attend to an interruption, distraction or another completely different task, you are left with a  cognitive residue that takes about 15 to 25 minutes to clear up so you can refocus on the initial task. Multitasking (or switch tasking) is very different from taking deliberate breaks for necessary rest or taking time to let ideas percolate and incubate.

Background tasking is fine when you couple a primary task with a low-concentration or mindless activity. You can take a walk with a colleague while you discuss a work issue during your lunch break. You can listen to classical music while you organize your receipts for tax filing. You can catch up on the latest episode of your favorite podcast while you do the dishes.

But when it comes to your high-concentration, most important tasks, the best way to complete them in less time and with greater ease is to single-task. Focusing on one task at a time typically leads to better results.  

Time blocking reduces procrastination (time suck) and encourages deliberate action (time saver)

Classically defined, procrastination is the act of delaying or postponing action to a future time.  Neil Fiore, author of The Now Habit, defines procrastination as “a mechanism for coping with the anxiety associated with starting or completing any task or decision.”

In certain situations, delaying a task purposefully and strategically can work to your benefit. Sometimes you do need to reflect on things, allow ideas to percolate, gather and synthesize information, clarify your intentions, and determine your ultimate goal before you take action. This is known as strategic procrastination.

In other cases, delaying action on an important task while you work on other tasks to build momentum.  This is called structured procrastination.

Dr. John Perry, a philosopher at Stanford University and author of The Art of Procrastination, notes that despite being a habitual procrastinator, he is very productive most of the time. He notes:

The key to productivity is to make more commitments – but to be methodical about it. At the top of your to-do list put a couple of daunting, if not impossible tasks that are vaguely important sounding (but really aren’t) and seem to have deadlines (but really don’t). Then further down the list, include some doable tasks that really matter. With this appropriate task structure, the procrastinator becomes a useful citizen. Indeed, the procrastinator can even acquire, as I have, a reputation for getting a lot done.

Perry suggest that instead of working on your most important task first, you start a different task on your list that needs attention. By making other tasks just as important, you can make it easier to tackle the most significant.  Structural procrastination is supposed to motivate you to do difficult, important and time-sensitive tasks, as long as they are a way of not doing something more important.

But there are side effects. Strategic procrastination works only if you start the project early and give yourself time to develop and test ideas. It should not be used to complicate simple things that can be done quickly and doesn’t require a lot of thought. Preparation, which includes building expertise on the topic and mindfully reflecting on ideas, is key.

Structural procrastination works only if you eventually get around to doing your most important task. It should not be used to permanently avoid your main priority by un(consciously) engaging in low-leverage, shallow work instead of high-value, deep work.

They are ineffective as overall productivity strategies. Relying on strategic procrastination or structural procrastination benefits you in only some situations. You are not always creative under pressure, especially when all or or most of your work occurs when the deadline looms. You are likely to end up with mediocre results, high stress, and undeveloped solutions if you start the work too late and don’t have an adequate incubation period to develop ideas and insights.

Time blocking prevents you from delaying or postponing tasks that should not be put off to a later time.

Time blocking takes advantage of Parkinson’s Law (i.e. work expands to fill the time allotted)

Simply put, you will use up all the time to complete a task when given a certain amount of time to do it.

Think about a lawyer billing by the hour with no deadlines. Compared to a lawyer who charges a fixed fee for a specific matter, a lawyer who bills by the hour will likely do more work than is necessary to fill or exceed the minimum billable quota, as long as the client is willing to pay for it and remain a client.

By setting specific time blocks to tackle and complete a task, you learn to reduce perfectionism, ignore trivial details, simplify the steps involved, and work more productively toward a desired outcome.

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In terms of improving diligence (Rule 1.3), developing competence (Rule 1.1) and communicating effectively (Rule 1.4), time blocking works on multiple levels. It takes practice to use it consistently, but once you do, you will benefit from increased focus, higher-quality work, and more deliberate progress on your most important tasks.

To learn more, read the related article, Deadlines & Daily Habits: How Time Blocking Works.

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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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Deadlines & Daily Habits: How Time Blocking Works

Exercising reasonable diligence, providing competent representation, and clearly and timely communicating with clients are critical professional responsibilities. When these ethical duties are neglected, lawyers are vulnerable to missing deadlines, producing sub-par work product, getting angry telephone calls from frustrated clients, and being reported to the bar disciplinary agency.

How do lawyers combine the essential skills of diligence, competence and communication to get important tasks done well and on time? How do they resist distractions, minimize interruptions, clarify their focus areas, and make purposeful progress on their highest priorities?

One essential productivity technique is time blocking. Also known as time boxing, this involves setting an appointment (with yourself) to do a single, high-cognitive demand task or a batch of similar, low-cognitive demand tasks in a specific time block.

Here are the 5 steps to implement time blocking to get essential tasks and projects done, while weeding out the non-essentials:

1. Do a brain dump 

The feeling of overwhelm comes with having too many goals to reach and carrying around too many ideas in your head.  By recording your to-dos, intentions, and plans in a notebook, on a sheet of paper, or in an electronic app like Evernote, you can capture all the things that occupy your thoughts.

Pick a certain day of the week (e.g. Sunday morning or Friday afternoon) to list out the stuff  – small tasks, big projects, short-term goals, and long-term projects – that take up mental space. Strive to get everything out in one session, although you may add items to the list sporadically, as they pop into your mind.

The brain dump is the first step to figuring out what to prioritize and get done within a certain time frame, as well as what to delegate, defer or drop altogether.

The process will also help you organize your projects and break them down into small, manageable steps (next actions) toward the desired outcome. If your list includes “write legal brief for X matter,” jot down the individual tasks involved in completing it. These include reviewing the file, narrowing down the legal issues, creating an outline, doing a first draft, and revising and editing to produce a final draft.

By capturing the steps it will take for you to reach an objective effectively, you can start to organize your projects, create a concrete action plan, and begin to make progress through time blocking.

2. Prioritize

The brain dump leaves you with random priorities. You then need to decide which are your must-dos and, on a daily basis, focus on the three most important tasks (MITs) or the one big thing that will make the most noticeable difference. Narrowing down your top priorities gives you room to deal with emergencies, delays, interruptions, and distractions outside your control. 

The Priority Matrix – also known as Eisenhower’s Urgent-Important Principle – is a useful tool for prioritizing significant, time-sensitive projects, building necessary knowledge and skills, and letting go of the distractions. It distinguishes between importance and urgency. Important tasks contribute to long-term accomplishment. Urgent tasks require immediate attention.

The system includes four different quadrants that enable you to prioritize tasks based on their importance and urgency. It reminds you that not every task is created equal and you may decide whether to tackle it now or defer it.

The Priority Matrix involves putting your tasks in one of four quadrants:

QUADRANT 1: Important + Urgent.

 

Examples: filing a legal brief by the deadline; appearing for a court hearing; attending a scheduled appointment with an important client

Significant, time-sensitive projects

 

 

 

 

QUADRANT 2: Important, But Not Urgent (at least not yet)

Examples: writing and publishing an article; preparing for a presentation; taking a course in your field; evaluating your work

Knowledge learning and skills development; planning and strategizing; mindful reflection and purposeful breaks

 

QUADRANT 3: Urgent (usually to someone else), But Not (always) Important

 

Examples: dealing with your boss’ last-minute request, attending an impromptu meeting, handling a colleague’s need to “pick your brain”

 

Time-pressured distractions and interruptions and random communications (like telephone calls, emails, text messages)

QUADRANT 4: Not Urgent, and Not Important

 

Examples: checking social media, surfing the web for news and videos, online shopping

 

Mindless activities and time wasters

 

3. Schedule priorities like appointments

After deciding on your top priorities (big rocks), your growth-based projects (pebbles) and recurring tasks that may become emergencies if you neglect them too long (sand), you next set a focused block of time to deal with them. Schedule the time blocks on your calendar at the start of your day or at the end of your day.

Be sure to match the task with your energy level, personal circumstances, and external environment. For example, do your deep work when your mental clarity and attention span are at its peak, you have the fewest interruptions, and you have access to a quiet workspace (or can at least choose your background noise).  Shallow work can be done when your energy is low (e.g. afternoon or end of day), you are more distraction-prone, and your workspace is noisier and more chaotic. 

Estimate how long a task will take and strive to carve out the ideal amount of time to spend on a particular activity. For complicated tasks that require deep thinking and high concentration, you could start with an hour and work your way up to two or three hours as you build your focus muscle. For shallow tasks, limit the time you spend on them to 25 minutes.

The Pomodoro Technique is one way to develop the skill to concentrate on one task at a time. First, you identify the task to do. Second, you set a timer (typically 25 minutes).  Third, you work on the task only until the timer goes off.  After the timer rings, you check off your task. And if you give in to interruptions and distractions (e.g. checking emails, getting a snack), you reset the timer. 

If you have fewer than four check marks, take a short break (5 minutes), then go to step 2. If you have at least four check marks, take a longer break (15–30 minutes), reset your checkmark count to zero, and do the steps all over again.

Studies show our ultradian rhythm allows our brain to focus for 90 to 120 minutes before it needs a break. So take purposeful, necessary breaks that involve stretching, hydrating, and calming your mind. Engage in rest and reflection that truly allow you to decompress and reset. Go outside for a walk, meditate, read a funny story or listen to instrumental music. 

4. Eat the frog before the candy

In Eat That Frog, author Brian Tracy writes, “Your ‘frog’ is your biggest, most important task, the one you are most likely to procrastinate on if you don’t do something about it.”  He writes:

The first rule of frog eating is this:

If you have to eat two frogs, eat the ugliest one first.

The second rule of frog eating is this:

If you have to eat a live frog at all, it doesn’t pay to sit and look at it very long.

If you have two important tasks, start with the more difficult one. And take immediate or prompt action rather than mull over it for too long. Tackle your major task – the one that’s high-value but you’ve been postponing – first thing, when your willpower is at its peak.

Be intentional about when you check your emails, watch online videos, scroll through web pages, and engage with social media. Make it as hard as possible to reach for your digital devices at any time of the day. Avoid them first thing after you wake up (when you ought to be gearing  for your most significant projects), and right before bedtime (when you ought to be winding down and clearing your mind).

You don’t have to respond to emails, telephone calls and text messages as soon as they come in or within second or minutes. By end of day or next day is usually more than enough in most cases.  Go online during chunks of predetermined time blocks on your own schedule. That way, you stay responsive and connected without being bombarded by digital distractions throughout the day.

Before you start high-focus tasks, close your web browsers and keep your smartphone out of sight – preferably in another room – with the Do Not Disturb mode on. (If you’re expecting a truly important call, you can set your phone to have it go through.)

While you’re engaged in deep work, stay away from social media, online news feeds and other digital distractions that clutter your mind. If you feel the urge to go online, remind yourself that your time block is for real work or purposeful breaks. 

To reduce digital temptations altogether, remove automatic alerts, like the pop-up messages and sound alerts you get each time a text, or email comes in. Disable push notifications from social media.  Try online filters and website blockers like FocusMe (paid service), Freedom (paid service) or StayFocused (free service for Google Chrome users).

Another way to tackle your MITs or one big thing is to theme your days. Set aside a day to concentrate on a high-cognitive demand task, such as writing an article, studying and analyzing a complex issue, following up and communicating with important clients, and making progress on a particular matter.

Block out time for your miscellaneous, low-cognitive demand tasks that require attention. Batch similar activities like replying to random inquiries from prospects and responding to requests for information or updates from clients.

5. Review whether actions reflect priorities

Do an honest assessment of your daily actions to determine whether you’re addressing your real priorities or just getting distracted with busy work.

Keep an activities log and record when you did each task and how much time you spent on it.  Are you investing more time than necessary on low-cognitive, shallow work that contributes little to your success? Does the task appropriately align with your energy and focus levels?  Have you been doing your MITs or one big task first thing or do you procrastinate on what you really need to be doing? Are you overscheduling and failing to build margins or leave white space in your calendar?

Tracking your time raises awareness of how much is spent on the meaningful versus the meaningless. It gives you a visual cue of important areas that need your attention. It motivates you to drop time wasters and energy drainers that steer you away from your preferred path. You learn to rework your plan and modify your scheduling to keep yourself accountable, stay on task, and make progress on the most important matters.

* * *

By taking the 5 steps to time blocking, you get to work on your important, high-value tasks, free of distractions and interruptions, without neglecting the routine, low-value tasks. In effect, you set strategic deadlines and cultivate productive habits that enable you to get the right things done effectively and efficiently.

Time blocking helps you develop long bouts of focus on complex problems and increases your flow state. It encourages you to batch small activities into restricted time blocks, instead of having them eat up your precious day.

Use time blocking to make steady progress and avoid procrastination  on significant, time-sensitive matters (Rule 1.3, diligence); build knowledge and skills and prepare adequately for representation (Rule 1.1., competence); and communicate clearly and deliberately with your clients (Rule 1.4, communication).

To learn more, read the related article, Deadlines & Daily Habits: Why Time Blocking Works.

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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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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