Posted onMarch 19, 2015|Comments Off on 5 Things to Do to Get Your Marriage-Based Green Card
In this video series, immigration attorney Dyan Williams describes the one-step petition (I-130 & I-485) and the five things to do to get your marriage-based green card:
1. Enter into a bona fide marriage
2. Establish a life together and collect evidence of this
3. Provide sufficient evidence of bona fide marriage
4. Take the interview seriously and prepare for it
5. Get help from an experienced immigration attorney
Read about 5 Things to Get Your Marriage-Based Green Card here.
Contact Dyan if you need help filing an immigrant petition for a foreign national spouse, responding to a Notice of Intent to Deny I-130 petition, or appealing a denial of an I-130 petition based on failure to prove a bona fide marriage.
This video series provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onMarch 18, 2015|Comments Off on 5 Things to Do To Get Your Marriage-Based Green Card
Marrying a U.S. citizen is one of the quickest — but not necessarily the easiest — way to get a green card. USCIS will deny a marriage-based green card case if it does not receive sufficient evidence of a bona fide marriage and/or if it determines that the marriage is a sham.
A U.S. citizen’s filing of an I-130 petition with USCIS is the first step to helping the foreign national spouse become a permanent resident. A spouse who was lawfully admitted to the United States or who qualifies for 245(i), and is still in the U.S., may concurrently file an I-485 application to become a lawful permanent resident (green-card holder). One advantage is that the spouse does not have to depart the U.S. to apply for an immigrant visa at the U.S. Consulate.
Submitting the I-130 and I-485 together is known as the one-step petition/application. Normally, USCIS processes and adjudicates both at the same time. The foreign national cannot receive a marriage-based green card unless USCIS approves the I-130 petition.
Here are five things to do to get your marriage-based green card:
1. Enter into a bona fide marriage
USCIS will approve the I-130 petition only if it finds that the parties entered into marriage in good faith, i.e. intended to establish a life together at the time they married. Normally, it must be proven by a “preponderance of the evidence” that the marriage is bona fide. Basically, this means the petitioner must show that it is “more likely than not” the marriage is real. [NOTE: When the marriage occurs while the foreign national is in removal proceedings, the standard of proof is higher: It must be shown by “clear and convincing evidence” that the marriage is real.]
Typically, USCIS expects a bona fide married couple to speak each other’s languages, live together, share common interests, co-mingle their finances, own joint property, and celebrate important events like holidays, birthdays and anniversaries.
A good faith marriage is one that is entered into for reasons other than for circumventing U.S. immigration laws. It could be arranged or freely chosen by the parties. It may be based on mutual love and affection, shared religious beliefs, a need for lifetime companionship, or a desire to raise children together.
A bona fide marriage is the opposite of a sham marriage, which is when the parties marry solely or primarily to obtain immigration benefits for the foreign national. USCIS’ Adjudicator’s Field Manual lists 10 factors indicating a marriage might be a sham:
Large disparity of age
Inability of petitioner and beneficiary to speak each other’s language
Vast difference in cultural and ethnic background
Family and/or friends unaware of the marriage
Marriage arranged by a third party
Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States
Discrepancies in statements on questions for which a husband and wife should have common knowledge
No cohabitation since marriage
Beneficiary is a friend of the family
Petitioner has filed previous petitions on behalf of foreign nationals, especially prior foreign national spouses
If any of these 10 factors apply to your marriage, you can expect more scrutiny from USCIS.
2. Establish a life together and collect proof of this
Before the one-step petition is filed, the couple should take steps to establish a married life together and collect documents to prove they are committed to one another. Examples include:
Living together (joint residential lease or mortgage statement showing both names, driver’s licenses showing same address)
Buying major assets together (motor vehicle title, invoice for furniture)
Adding the spouse as a beneficiary to employer-sponsored benefit (life insurance policy, health insurance plan, retirement account)
Co-mingling assets and liabilities (joint bank account statements, joint credit card statements, joint tax returns)
Sharing household expenses (utility bills in both names)
Going on vacations together (travel itineraries, photographs)
Participating in shared activities (gym or club memberships)
Spending time with mutual friends (affidavits from third parties attesting to the bona fides of the marriage)
The Service will consider the parties’ conduct before and after the marriage to determine their true intent at the time of marriage.
Circumstances might require the couple to live apart temporarily, especially for work-related reasons. If the couple is not living together at the time they file for immigration benefits or at the time of their interview, they need to have a good explanation and gather reliable documentation showing they have a real marriage. Examples include:
Letters, emails and greeting cards you have exchanged with each other
Airline tickets, hotel bills and other receipts showing trips you made to see each other
Telephone records showing calls you made to each other
Photographs of the two of you together and with family and friends (or even with pets), taken over a considerable period at different events
Correspondences (e.g. bills, letters, cards) addressed to both of you at the same address
Receipts for gifts you bought each other
Birth certificates of (biological, adopted) children you have together, or evidence that you are trying to have children
3. Provide sufficient evidence of a bona fide marriage
The Instructions for Form I-130 list the types of documents that may show the bona fides of a marriage. They include documentation showing joint ownership of property (e.g. mortgage, car title); documentation showing co-mingling of financial resources (e.g. joint bank account); birth certificates of children you have together; and affidavits from third parties confirming the bona fides of your marriage.
Your marriage certificate and proof of termination of any prior marriages (e.g. divorce decree or death certificate of previous spouse) only show that your marriage is valid. These documents are required, but are not sufficient to show the marriage is bona fide.
Filing a one-step petition is not just about completing the forms and submitting the filing fees. You also need to carefully document the bona fides of your marriage and give USCIS a sense of who you are as a couple. The more documents you present to show your marriage is real, the easier it will be for the officer to approve your case.
Some types of documents are also more persuasive than others. For example, birth certificates of your children, mortgage statements for your shared home, and life insurance policies showing one of you as the other’s beneficiary are much more persuasive than photographs of the two of you together, your joint residential lease , and your joint utility bills. They are harder to fake and are practically non-existent in sham marriages.
No matter the circumstances, you must avoid submitting any fabricated, false, forged or altered documents to USCIS. This could lead USCIS to find that you committed fraud or willful misrepresentation of material facts to obtain immigration benefits. This would require you to obtain a waiver of inadmissibility to obtain the green card (even if you managed to get the I-130 approved).
4. Take the interview seriously and prepare well for it
In marriage-based green card cases, the USCIS field office in your jurisdiction normally interviews you to verify whether your marriage is bona fide.
The officer will place you both under oath at the start of the interview. In addition to getting specific information, the officer will be observing your demeanor and your interactions with each other to determine whether you have a real marriage.
Tell the truth at the interview, even if the answers are less than ideal. Giving false testimony or misrepresenting facts at the interview is grounds for a denial. Discrepancies between your and your spouse’s testimonies and inconsistencies within your testimonies also hurt your credibility. They will cause the officer to doubt the bona fides of your marriage.
At the interview, listen carefully to the USCIS officer’s questions and respond truthfully to the questions you’re being asked. Giving too many details about your courtship and embellishing stories about your shared life can make you less believable.
There’s no need to volunteer information that was not required on the application forms and is not being asked for at the interview. While you should not give misleading information to cut off a line of inquiry from the officer, you also don’t want to open up a line of questions that could unnecessarily bring out negative information.
If you don’t understand a question, ask the officer to repeat it or rephrase it. If you don’t recall information or you’re not 100% sure of your answer, let the officer know. If you feel you’re being asked inappropriate questions, stay calm and avoid arguing with the officer. (You may ask to speak with a supervisor.)
If your first language isn’t English or if you’re not fluent in English, be sure to bring a qualified interpreter. Otherwise, you could misunderstand the officer’s questions or the officer could misunderstand your answers.
USCIS often interviews you together, but may interview each of you separately. When separate interviews are conducted, the officer will ask you each the same questions and compare your answers. If both of you tell the truth, it’s more likely that your answers will be the same or similar. Consistent testimonies help to persuade the officer that you have nothing to hide and that your marriage is bona fide.
Even bona fide married couples do not always observe, perceive or recall things the same way. For example, would you give the same answers if you were separately asked the following questions:
Where did you first meet?
How did you meet?
Where did you go on your first date? When was your first date?
How many people attended your wedding?
What did you to to celebrate your marriage?
Why did you get married?
Who proposed? Where were you when marriage was proposed?
What are your spouse’s work hours?
What is the color of the wall in your bedroom?
Which side of the bed do you sleep on?
Where did you go on your last vacation together?
Who woke up first this morning?
These are just a few of the many potential questions the officer may ask you. It helps for you and your spouse to prepare for the interview and make sure you’re on the same page when it comes to your relationship history and shared life together.
Your testimony at the interview can be the deciding factor in whether your case gets approved. Following the interview, the adjudications officer can approve the one-step petition, issue a Request for Evidence, have a site visit conducted at your claimed residence, conduct further investigation, or issue a Notice of Intent to Deny the petition.
5. Get help from an experienced immigration attorney
You’re better off consulting an attorney from the outset, before you file your one-step petition. Full representation is best, but if you cannot afford this, you want to get limited representation or consult an attorney at least once.
An experienced attorney can determine whether you qualify for a marriage-based green card, review your application forms for accuracy and completeness, advise you on the types of documents to submit to prove the bona fides of your marriage, prepare you for what to expect at the interview, and represent you at the interview. An attorney can also discuss red flags in your case and counsel you on how to address them.
At the interview, a USCIS officer who suspects the marriage is fraudulent may give the U.S. citizen an opportunity to withdraw the petition and write a statement to that effect. Having your attorney at the interview will help protect your rights and make the process more comfortable.
A diligent attorney will take notes, ask clarifying questions, and object to inappropriate lines of questioning. The attorney will also be able to give you an assessment of how the interview went and advise you on follow-up matters.
Want to hear about 5 Things to Do to Get Your Marriage-Based Green Card? Check out the video series:
Conclusion
Entering a bona fide marriage, establishing a life together, submitting documentation of your shared life, successfully completing the interview, and seeking advice from counsel are five key steps to getting your marriage-based green card. If you have a real marriage, you really have little to worry about. It’s just a matter of convincing USCIS that your marriage is bona fide.
WARNING!
USCIS may deny a one-step petition if it receives insufficient evidence of a bona fide marriage and/or if it finds that the marriage is a sham. The immigration authorities may then file removal charges against the foreign national on several grounds, such as failing to maintain lawful non-immigrant status and committing fraud to obtain immigration benefits.
A sham marriage finding is also a permanent bar to obtaining an approval of any subsequent petitions for the foreign national. So the foreign national could never get a green card based on, for example, a second immigrant petition by a new spouse or U.S. employer (unless the marriage fraud finding was overturned on appeal or on USCIS’ own reconsideration).
Marriage fraud is a crime. A person who knowingly enters into a marriage for the purpose of evading immigration laws is subject to imprisonment (up to 5 years), a fine (up to $250,000), or both.
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.
Posted onMarch 9, 2015|Comments Off on Watch Out for Potential Delays and Snafus in H-1B Cap Filing
Every year on April 1, USCIS begins accepting H-1B cap petitions from U.S. employers. Congress sets an annual limit on the number of new H-1B visa petitions that can be approved each year. During the last several years, the regular cap of 65,000 visas and master’s cap of 20,000 visas has been reached in the first week of April.
Unless an exemption applies, employers should plan on filing their H-1B cap petitions on April 1, instead of relying on the filing window. An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.
Although there’s still time for employers to prepare H-1B cap petitions for an April 1 filing, they need to watch out for potential delays and snafus.
1. Proving that the Foreign National Qualifies for an H-1B
To qualify for an H1B, the foreign national must normally have a bachelor’s degree in a particular field in or related to what USCIS will consider a “specialty occupation.”
A specialty occupation “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of the equivalent of an American bachelor’s degree or higher in a specific specialty as a minimum for entry into the United States.”
If the employee does not have the equivalent of a U.S. bachelor degree, he must show progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency.
Obtaining Credentials Evaluation
Foreign nationals who did not obtain their degree from a U.S. educational institution must show that their education is equivalent to a 4-year U.S. bachelor’s degree. This requires a “foreign degree/education evaluation” from a qualified credential evaluation service.
Obtaining the credential evaluation can take several days or weeks, especially during the months leading up to the H-1B filing season, when the demand for qualified credential evaluators is really high. The result of the evaluation often determine if the foreign national is eligible for an H-1B.
The credential evaluation service generally needs the foreign worker’s resume, transcripts, degree certificates and all other documents related to education in the specialty occupation.
Proving Progressive Work Experience
In some cases, the foreign national might need to prove that he has the equivalent of a bachelor’s or master’s degree based on the combination of the credential evaluation and proof of relevant work experience.
This includes situations where:
the person has a four-year degree from a foreign college or university, but the degree is not in the same field as the “specialty”
the person has some college education or related coursework, but did not obtain a degree
the person has no college education, but has many years of experience.
the person has a “bachelor’s” diploma, but it involved less than four years of post-secondary academic study
Standard proof of work experience includes a letter from a previous employer, academic adviser, or professor, stating the job title, hours worked per week, dates of employment, and description of duties. The letters must show that the person’s experience has been progressively more responsible and demonstrates expertise in the field, either during the employment at a single company or at successive employers.
Although USCIS has not clearly defined “progressive” experience, the experience letters must show that the person “progressed” in his specialty during his employment, taking on more duties and responsibilities over time.
2. Submitting Labor Condition Application
The employer must first submit a Labor Condition Application (Form ETA 9035) to the U.S. Department of Labor and get it certified before it files the H-1B petition. USCIS will reject or deny an H-1B petition that does not include a an LCA certified by the DOL and signed by the petitioning employer.
The DOL typically takes at least 7 days to process the LCA, but could take longer during the busy filing season. The DOL may reject LCAs that are not properly filled out. The rejection notice includes a list of problems that the employer must correct before it resubmits the LCA.
The LCAs are currently filed through an electronic system, iCert, which is vulnerable to breakdowns and technological glitches.
Furthermore, if the petitioning employer is relatively new or has not previously filed H-1B, it is possible that the iCert system will not recognize the FEIN. In that case, the employer might need to be pre-certified, which will add several days if not more to the timeline.
3. Filing the H-1B Petition
Avoid multiple or duplicative H-1B petitions
To ensure fair distribution of available H-1Bs, USCIS prohibits employers from filing multiple or duplicative H-1B petitions for the same employee. This means employers must not file both a master’s degree cap petition and a bachelor’s degree cap petition for the same employee. The employer should also avoid filing multiple H-1B petitions using multiple jobs for the same employee.
USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same person and will not refund the filing fees.
Submit all required forms and supporting documents
Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.
Include original signatures on all required forms, preferably in black ink.
Provide all required documentation and evidence with the petition at the time of filing.
Mail the petition to the correct USCIS service center.
Include required filing fees
In addition to submitting the required forms and supporting documents, the employer must also provide signed checks or money orders payable to U.S. Department of Homeland Security, signed and dated within the last six months, and include the proper amounts.
Employers should avoid submitting unnecessary excess fees and, more importantly, provide the required fees so that USCIS will accept the case and process the petition. USCIS will reject all petitions submitted with the incorrect filing fees.
The applicable filing fees are:
Base filing fee
$325
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee: (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)
$750 for employers with 1 to 25 full-time equivalent employees, unless exempt
$1,500 for employers with 26 or more full-time equivalent employees, unless exempt
Fraud Prevention and Detection Fee
$500 to be submitted with a request for initial H-1B status or with a request for an employee already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)
Public Law 111-230 Fee
$2,000 to be submitted by a petitioner that employs 50 or more employees in the United States, if more than half of those employees are in H-1B or L-1 nonimmigrant status (must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers).
Premium Processing Fee (optional, but generally recommended)
$1,225 for employers seeking Premium Processing Service
With premium processing, the employer receives a decision on the H-1B petition within fifteen days of the receipt notice , rather than wait several months for USCIS to process the H-1B petition.
Next Filing Season is in April; Other Visa Alternatives are Limited
H-1B visas are for foreign workers in specialty occupations, including scientists, engineers, computer programmers, accountants and teachers.
If the H-1B filing season is missed in the current year, employers will not be able to file H-1B cap petitions until April 1 (or earliest business day of April) in the following year, and cap-subject foreign workers will not be able to start employment in H-1B status until October 1 of that year.
Employers must prepare to file their H-1B cap petitions in early April to increase their chances of hiring foreign talent this year. Otherwise, they might need to look into other visa options, which are few and far between.
Get Help from an Experienced Immigration Attorney
Employers should get help from an experienced immigration attorney to avoid potential delays and snafus in their H-1B filings.
An experienced immigration attorney helps streamline the process by identifying whether a foreign national is eligible for H-1B; providing advice on the required information, forms and documents to submit; obtaining a foreign credential evaluation if needed; submitting the Labor Condition Application to the DOL; preparing the H-1B filing packet, and timely submitting a properly prepared petition to the appropriate USCIS office.
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.
Posted onMarch 6, 2015|Comments Off on H-1B Filing Season Begins April 1 (visas expected to run out in first week)
On April 1, USCIS begins accepting H-1B cap petitions for employment in each fiscal year (October 1 of the current year through September 30 of the next year).
Employers who wish to have cap-subject foreign workers start employment in the new fiscal year should prepare to file their H-1B petitions on April 1.
F-1 student visa holders using Optional Practical Training (OPT) work authorization and foreign nationals who have never held H-1B status are subject to the H-1B cap.
What is the H-1B Cap?
Congress sets an annual limit on the number of new H-1B petitions that USCIS can approve each fiscal year. This is known as the H-1B cap.
Although Congress may increase or lift the cap, the current annual cap for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for employees with a U.S. master’s degree or higher. Thus, the annual quota is 85,000 H-1B petitions.
Of the 65,000 H-1B visas, 6,800 are reserved for foreign workers from Chile (1,400) and Singapore (5,400), due to free trade agreements. This effectively reduces the number of regular H-1Bs available to 58,200 for most visa applicants.
How Long is the H-1B Cap Filing Period?
USCIS accepts H-1B cap petitions until the annual quota is met. In many recent years, the quota has been filled within the first five business days of April.
In fiscal year 2014, the regular H-1B visa cap of 65,000 was reached on April 5, 2013 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 5, 2013 (5 days).
In fiscal year 2015, the regular H-1B visa cap of 65,000 was reached on April 7, 2014 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 7, 2014 (5 days).
Due to economic growth and increased demand for H-1Bs, the annual cap will likely be reached in the first few days of April this year.
What is the H-1B Visa Lottery?
USCIS monitors the number of H-1B filings and notifies the public of the date on which it receives enough petitions to reach the cap. This date is known as the “final receipt date” (final day of acceptance).
If USCIS receives more H-1B petitions than it can accept, it will use a visa lottery system to randomly select the number of petitions required to reach the annual cap. This involves a computer-generated random selection of H-1Bs from the pool of petitions received on the final day of acceptance.
USCIS labels and identifies each of the petitions with a unique number that is used for random selection. The lottery allows USCIS to apply the remaining number of H-1B visas to the petitions received on the final receipt date.
USCIS first conducts the random lottery of the 20,000 H-1B cases eligible for the master’s cap exemption. Those cases not selected under the H-1B masters cap will then be included in the random lottery for the regular 65,000.
USCIS sends the list of all selected petitions numbers to the service centers. The USCIS service centers will then process and adjudicate the selected petitions.
Cap-subject H-1B petitions that are not randomly selected, as well as those received after the final receipt date, will be rejected and returned to the attorney or employer with the filing fee(s). If there were duplicative or multiple filings for an employee by the same employer, no fee will be returned.
[UPDATE: On December 6, 2019, USCIS announced it would implement the electronic registration process for the fiscal year 2021 (FY 2021) H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary. Only selected registrants may file an H-1B cap-subject petition.]
Who is Exempt from the H-1B Cap?
The H-1B cap does not apply to cap-exempt employers or cap-exempt foreign workers. Cap exemptions apply if:
Your employer is an institution of higher education (e.g. a college or university)
Your employer is a non-profit organization affiliated or related to an institution of higher education (e.g. a hospital or research facility)
Your employer is a non-profit research organization or government research organization
Your employer (third party petitioner) is not cap-exempt, but your employment is at an H-1B exempt institution (i.e. you will physically work at the institution of higher education or related or affiliated nonprofit and there is “nexus” between the work performed and the normal purpose of the nonprofit).
Your employment is concurrent with exempt employment
You were previously counted against the H-1B cap in the last six years (i.e. you were the beneficiary of an approved cap-subject H-1B petition with an effective date within the preceding six years, whether you are in the U.S. or abroad). [UPDATE, July 2017: USCIS has taken the position that you must have entered the U.S. under the previously approved petition and actually held H-1B status to qualify for this cap-exemption. See, e.g. Matter of T-S-,INC., AAO Decision.] If you worked in the U.S. on H-1B for under 6 years and have been outside the U.S. for more than 1 year, but less than 6 years, a cap-exempt petition may be filed at any time. But you would be eligible to receive only the remainder of the time left from the original 6-year maximum. Otherwise, if selected in the annual lottery, a cap-subject petition may be filed as early as April, which would make you eligible for a new six-year maximum.
You have a U.S. master’s degree (until the 20,000 master’s cap runs out)
You are a physician with a Conrad 30 J-1 waiver, regardless of the nature of your employer
The H-1B filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. An H-1B petition that is not subject to the cap may be filed at any time and not be subject to the annual quota.
* * *
The filing date is when USCIS receives the H-1B petition (required forms, supporting documents and correct filing fees), not the date that the petition is postmarked.
Employers and foreign workers need to be aware of potential delays and snafus, such as when obtaining a foreign credential evaluation and submitting the Labor Condition Application.
An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.
If employers miss the current year’s H-1B filing season, the next earliest date they may file their H-1B cap petitions is April of the following fiscal year, in which case employment may not begin until October 1 of that year. This might require them to consider other visa options (e.g. O-1, L-1 and TN), which have drawbacks and limitations.
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.
Posted onFebruary 27, 2015|Comments Off on Wanted: Systems for Your Law Practice (whether you’re dead or alive)
Solo practitioners and many small firm lawyers play multiple roles in their law practice. They are not only attorneys handling client matters, but also managers performing administrative functions and business people running their firms.
Like all other small business owners, they must be technicians, managers and entrepreneurs.
Lawyers’ capacity to do work are limited by the hours in a day, their energy level, their attention span, and the resources available to them.
Regardless of their circumstances and priorities, lawyers must provide competent and diligent representation to clients. Systematizing their law practice helps them do just that. Systems are clearly defined, step-by-step plans, procedures, processes and policies to complete routine tasks and address common issues.
You must also “act with reasonable diligence and promptness in representing a client,” states Rule 1.3 of the MRPC.
Diligence requires you to avoid getting too busy or too overwhelmed to the detriment of your clients. Comment 2 states:
A lawyer’s work load must be controlled so that each matter can be handled competently.
Even when you’re dead, disabled or ill, you should have safeguards to prevent neglect of client matters. Comment 5 states:
To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
If you die or become temporarily unable to practice law, and have no contingency plan, the court may appoint a trustee under Rule 27 of the Minnesota Rules on Lawyers Professional Responsibility. Otherwise, another lawyer may fill in informally to manage the practice and handle client matters as best as he can.
Rules 1.1. and 1.3 do not outline specific steps you must take in the event of unexpected death, disability, or incapacity, unlike Rule 1.17, which describes what you must do when you sell your law practice.
Nonetheless, you still need to protect your clients (even when you’re dead) and run your firm effectively (without running yourself into the ground).
Why Do You Need Systems?
Imagine what would happen to your client matters if you suddenly died or became disabled or incapacitated, and had no backup plan.
Think about the potential effects on your health if your workload routinely exceeded your capacity and you had no time to self care.
Ponder whether you could take your practice to the next level if you handled all the work and could not attend to strategic planning for your firm.
Chances are, your clients, your health, your practice and your firm would take a hit if you had no systems to allow your business to run without you and to free up your time and energy to do what matters most.
Systems may include an office manual documenting the various business functions at your firm, a detailed checklist for your most common types of cases, and template letters for following up with prospects and closing out client files.
In E-Myth: Why Most Legal Practices Don’t Work and What to Do About It, Michael E. Gerber and co-authors argue that most attorneys work in their practice as technicians (getting the work done/tactical), rather than work on their practice as entrepreneurs (developing a vision/strategic). Bridging the gap between the two involves building and using systems to achieve consistent results, usually through others. This requires attorneys to also serve as managers (turning vision into action/tactical and strategic).
Solos can team up with another attorney, hire a contract paralegal, or work with a virtual assistant to complete tasks systematically. And even if the solo has no attorneys, paralegals, or assistants helping him, he can still benefit from having systems.
The more your business grows, the tougher it gets to personally answer every inquiry from prospects, handle every client matter, or tackle every business issue. So set up your systems before business growth and before your practice reaches full capacity, not after.
Systems are Critical to Handling Client Matters and Running Your Firm
Client matters are more prone to falling through the cracks when you try to do it all yourself and have no systems to automate or streamline routine tasks.
Mistakes and neglect can also occur when you delegate tasks ineffectively and inappropriately.
Well-documented and well-designed systems allow you to cut the amount of time you need to get things done. Systems can also enable your practice to operate and your firm to run without your direct input.
Systems are Crucial to Protecting Clients’ Interests and Your Own Interests In the Event of Sudden Practice Interruption
As professionals, most lawyers genuinely want to protect clients’ interests in the event of sudden practice interruptions. When the interruption is caused by temporary illness or disability, lawyers will also want to set up a transition plan to avoid permanent loss of clients and to protect their reputation.
Which Systems Do You Need?
Documenting your processes and policies, as well as systematizing repetitive tasks, can help you streamline your practice and create more consistent, high-quality results (no matter how heavy your work load).
Systematization doesn’t mean you provide cookie-cutter solutions or drop the uniqueness of your brand. Rather, they help you automate routine activities and daily operations so your firm runs like a business instead of just as a practice that depends completely on you.
The key systems you need to set up, consistently use, and extensively document include:
1. Operations management system. e.g. setting up operations procedures and administrative processes around business functions, instead of around people.
2. Calendaring, scheduling and tickler system. e.g. recording important hearings and meetings and setting reminders for due dates and deadlines.
3. Client file management system. e.g. providing steps for running conflicts checks, opening new client files, closing files, and destroying old files.
4. Client communication system. e.g. having a policy for responding to telephone calls, emails and other communications from clients; providing a script for resolving a billing dispute.
5. Client service and retention system. e.g. creating templates for repetitive letters and emails; providing step-by-step procedures and checklists for routine matters; preparing written instructions and answers to FAQs for clients.
6. Client attraction and acquisition system. e.g. implementing a specific process for responding to online and telephone inquiries from prospects; developing a policy for post-consultation and post-meeting follow-ups with prospects.
7. Case management system. e.g. using online software like MyCase or even an Excel spreadsheet to manage cases and track the status of each.
8. Billing and invoicing system. e.g. using Quickbooks or other financial software to monitor income and expenses and automate invoicing to clients.
9. Firm management system. e.g. providing a written office manual that contains contact information for key personnel; location and account numbers for business and trust accounts; passwords for computer and voice mail; location of business documents such as leases, service contracts, and business credit cards.
10. Contingency management system. e.g. creating a succession and transition plan or an emergency handbook for dealing with unexpected practice interruptions.
Although systems take a lot of extra time to create and implement, they are necessary for your practice to run smoothly and your firm to succeed.
Whether you’re a solo or small firm lawyer, systems help you avoid redundant work, attend to client matters with greater efficiency, scale the growth of your firm, and prepare for sudden practice interruptions.
Systems free up your time to do what matters most. They help you provide competent and diligent representation whether you’re alive, incapacitated, or dead.
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This article provides general information only. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles. 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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