How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Posted on January 19, 2015 | Comments Off on How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Becoming a permanent resident of the U.S. is not a quick process.

Yet green card holders sometimes take their status for granted and lose it through unintentional abandonment.  This results from a host of reasons, such as staying outside the U.S. too long, being employed in the home country, and filing tax returns as a non-resident.

You may voluntarily and officially give up your U.S. residency by turning in your green card and filing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with the appropriate U.S. Consulate or USCIS office.

But if you want to keep your lawful permanent resident (LPR) status, you should take these 6 critical steps to avoid unintentionally abandoning it:

1. Keep each trip abroad short (six months or less) 

Being a permanent resident gives you freedom to travel overseas and re-enter the U.S. with your green card and a valid passport, without needing a visa.

Short visits outside the U.S. lasting less than six months are usually not a problem. Frequent travelers should return to the U.S. as often as possible and within six months of any departure.

Trips outside the U.S. lasting six to 12 months bring greater scrutiny and suspicion that you abandoned your residency. And trips outside the U.S. lasting more than 12 months lead to a presumption that you abandoned your residency. You will then have to convince the U.S. Customs & Border Protection (CBP) officer or the Immigration Court that you did not abandon your residence.

If you are absent from the U.S. for six consecutive months or more, you risk losing your green card when you try to reenter the U.S. This is especially true when you have multiple, prolonged absences or when you have received prior warnings from a CBP officer at the port of entry.

2. Make sure your visits abroad are fixed and temporary and that you return to the U.S., as your permanent home, for extended periods 

Coming back to the U.S. before you hit the six to 12-month mark of being absent is not a surefire way to preserve your residence. The length of time abroad is not the only factor to consider.

When your trips abroad (particularly to your home country) are frequent, you run the risk of being subject to scrutiny by the CBP each time you seek re-entry. Regular, extended trips outside the U.S., followed by relatively short stays, will cause CBP to doubt whether your true residence is in the U.S. The CBP may question  you about your travel patterns, employment history and other factors to determine if you just return to the U.S. to hang on to the green card, but do not really have a permanent home in the country.

Returning to the U.S. within one year is necessary to maintain LPR status and to re-enter the U.S. without a reentry permit. But such a return is not always enough to show that you did not abandon your residence.

Following a trip abroad, a permanent resident must be returning to an unrelinquished residence in the U.S. In Matter of Kane, the Board of Immigration Appeals found that a Jamaican citizen abandoned her LPR status when she spent 11 months of every year living in her native country and returned to the U.S. for one month every year.

LPR status is granted to those who intend to make the U.S. their permanent home. When you leave the U.S. with the intent of making another country your true home, you in effect abandon your U.S. residency.

The purpose of your leaving the U.S. must be temporary; your visit abroad must have a fixed timeline; and you must intend to return to the U.S. as a place of permanent employment or as an actual home.

A visit abroad of any length will be considered temporary and fixed if it will end on a certain date (e.g. temporary placement abroad by your U.S. employer; “round the world” travel; professional training; attendance at school; sabbatical) or when a certain event takes place (e.g. travel to care for a sick relative; travel to liquidate assets or business abroad; travel for a work project with a clear end date).

Be prepared to show proof that you intended to return to your U.S. residence, especially if your trip abroad lasted six months or more.

3. Maintain your ties to the U.S. 

Any absences from the U.S. – even if is less than one year – may be considered in deciding whether you abandoned your residence.  Permanent residents must maintain family, employment, financial and property ties in the U.S. and have documentation to prove these ties.

Proof that you did not abandon your U.S. residency includes:

  • Evidence of your filing U.S. income tax returns for the past year(s).
  • A valid U.S. based driver’s license
  • The name and address of your U.S. employer and evidence that it paid your salary.
  • Evidence of ownership or leasing of property, such as a home, in the U.S.
  • Evidence of ownership of assets, such as a bank account, in the U.S.
  • Evidence of immediate family members, such as a U.S. citizen child or spouse, in the U.S.
  • Evidence of registration or attendance at a U.S. school.
  • Evidence of professional affiliations or club memberships in the U.S.

4. Minimize your ties to your native country or to a third country

If you maintain strong ties to another country and stay there frequently or for extended periods, you could be found to have abandoned your U.S. residence, based on the totality of the circumstances.

Avoid actions that strengthen your ties overseas, such as extended visits to family members in your home country; owning property in your home country; working abroad for a foreign employer;  being self-employed or running a business in your home country; voting in foreign elections; running for political office in a foreign country; and failing to file your U.S. income tax returns or filing them as a non-resident alien.

5. Get a reentry permit or a returning resident visa for admission to the U.S. following a long absence

Your green card becomes technically invalid for reentry into the U.S. if your trip abroad lasted one year or more.  While your green card can be used for reentry following an absence of less than one year, you may be treated as seeking admission to the U.S. if you were gone for six months or more.

A reentry permit is a must-have for permanent residents who plan to stay outside the U.S. for one year or more, but want to keep their U.S. residency. A reentry permit is also recommended when each stay abroad lasts less than one year, but the permanent resident travels frequently and spends considerable time outside the U.S.

To get a re-entry permit, you must file a Form I-131, Application for Travel Document, with USCIS and complete the biometrics (photo and fingerprinting) before you depart the U.S. If you leave the U.S. while the application is still pending, you may request USCIS to send the reentry permit to you through a U.S. Consulate or USCIS office overseas.

A re-entry permit helps to show you did not intend to abandon your status. It also permits you to apply for admission to the U.S. following an absence of up to 2 years without needing a Returning Resident (SB-1) immigrant visa.

If you did not apply for a re-entry permit before you left the U.S for a period lasting one year or more, you should apply for a Returning Resident visa at the U.S. Consulate. The consular officer will grant the visa  if he finds that you departed the U.S. with the intent of returning to an unrelinquished U.S. residence, and your stay abroad was for reasons beyond your control and for which you were not responsible.

With a re-entry permit, you may not be found to have abandoned your residence based only on the length of time spent abroad. The re-entry permit, however, does not guarantee retention of LPR status or prevent a finding of LPR abandonment.  You may still be found to have abandoned your residency based on other relevant factors, such as weak ties in the U.S. and strong ties overseas.

6. Be prepared to explain the temporary purpose of your trip abroad and avoid signing a Form I-407 at the port of entry

Following any trips abroad, permanent residents need to present a valid green card  to the CBP officer at the U.S. port of entry. Based on travel history, employment ties, etc., the CBP may find that a permanent resident is really living outside the U.S. and has abandoned his U.S. residency.

If the CBP believes you abandoned your LPR status, they can take steps to have it officially revoked or cancelled. The officer may give you an opportunity to withdraw your application for admission or grant you Deferred Inspection.

If you wish to keep your U.S. residency, it’s better to avoid withdrawing your request for re-entry. Instead, explain the temporary purpose of your trip abroad and the compelling circumstances that led you to stay overseas as you did.

If the CBP still believes you abandoned your residency, it  may confiscate your green card, defer your inspection, and issue a parole document temporarily allowing you into the U.S. on the condition that you report to them at a scheduled date with proper documentation proving you reside in the U.S. Being paroled into the U.S. and receiving Deferred Inspection is short of lawful admission as a permanent resident.

At your Deferred Inspection appointment, the CBP may agree that you reside in the U.S. and give you back your green card. But if it finds you do not maintain a permanent home in the U.S., you may be detained in the custody of U.S. Immigration & Customs Enforcement (ICE) or released conditionally, and placed in removal proceedings before the Immigration Court.

In removal proceedings, ICE has the burden to prove by clear and convincing evidence that you abandoned your residence. An immigration judge may terminate removal proceedings and allow you to keep your green card if you prove you did not abandon your residence. If the Immigration Court finds that you abandoned your status, you may defend yourself against removal by filing a form of relief for which you qualify.

At the port of entry, the customs officer may give you a Form I-407, Record of Abandonment of Permanent Residence Status, to sign (sometimes in exchange for being admitted to the U.S. as a temporary visitor).

If you want to keep your status, do not sign the Form I-407 if one is given to you. Instead, ask for Deferred Inspection or a Notice to Appear in Removal Proceedings before the Immigration Court.

A signed Form I-407 can be used to show that you affirmatively abandoned your residence. It makes it much harder to prove that you you did not abandon your U.S. residency or did not intend to abandon it.

When Does the Question of Whether You Abandoned Your U.S. Residency Come Up? 

Applying for Admission at the U.S. Port of Entry

Each time green card holders return to the U.S. from a trip overseas, CBP officers may ask questions to determine whether they abandoned their U.S. residency. Common questions include:

  • Where have you been outside the U.S.?
  • How long were you there?
  • What were you doing there?
  • Why are you coming to the U.S. now?
  • What ties to the U.S. did you keep while you were away?

Filing a Naturalization Application with USCIS

When permanent residents apply to become naturalized U.S. citizens, they are asked questions about their trips abroad on the Form N-400 application. They are also asked about their current and past addresses; employers and schools; and whether they filed their federal, state or local taxes as a nonresident.

Information on the N-400 concerning where you have lived, worked, and kept ties, as well as the frequency and lengths of your trips abroad, could lead to complications. USCIS may find that you not only fail to meet the continuous residence and physical presence requirements for naturalization, but that you also abandoned your U.S. residency.

If USCIS finds that you abandoned your U.S. residency, it will deny the naturalization application and may issue a Notice to Appear in Removal Proceedings. If placed in removal proceedings before the Immigration Court, you would need to prove that you did not abandon your LPR status and defend yourself against removal.

* * *

Consult with an experienced immigration attorney to help you determine whether your long absences from the U.S., frequent trips abroad, weak ties to the  U.S., or strong ties to another country could cause problems with re-entering the U.S. or becoming a naturalized citizen.

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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Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Posted on January 12, 2015 | Comments Off on Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Foreign nationals often want to know whether a civil war or other unstable conditions in their home country allows them to seek refuge and stay lawfully in the U.S.

Those who do not qualify for asylum might be still be able to obtain another form of humanitarian relief known as Temporary Protected Status (TPS).

TPS is a temporary immigration status granted to those who are already in the U.S. during a period when they cannot return safely to their home country or when the home country cannot handle the return of its nationals.

But the Secretary of Homeland Security must first designate the country for TPS due to the following temporary conditions:

  • Ongoing armed conflict (such as civil war)
  • A natural disaster (such as earthquake, hurricane, drought)
  • An epidemic or outbreak of disease
  • Other extraordinary and temporary conditions

WHO CAN APPLY FOR TPS

To qualify for TPS, you must meet these eligibility requirements:

1. Be a national of a country on the TPS list, or a person without nationality who last habitually resided in the designated country

You may visit the TPS page of the USCIS website to see which countries are currently designated for TPS.

As of January 12, 2015, they are El Salvador, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, and Syria. (NOTE: Countries can be added or taken off the list following the date of this article.)

2. Have physical presence in the U.S.

You must have been continuously physically present in the U.S. since the effective date upon which your country was designated or redesignated for TPS.

3. Have continuous residence in the U.S.

You must have continuously resided in the U.S. from the date USCIS specifies for your country, usually a few months or days prior to the effective date of TPS.

The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent trips outside the U.S. (such as a short trip to Canada or Mexico).

You may NOT be eligible to obtain TPS or keep your TPS if you:

1. Have a serious criminal record

If you have been convicted of a felony or two or more misdemeanors in the U.S., you are ineligible for TPS benefits.

2. Are found inadmissible to the U.S. and do not qualify for a waiver

Criminal convictions, immigration violations, health issues, and other grounds can make you inadmissible to the U.S. You may file a Form I-601 for a waiver of inadmissibility in certain situations, such as when you sought to obtain immigration benefits by fraud or willful misrepresentation of a material fact.

You would need to show that the waiver is for humanitarian purposes, for keeping your family together, or for the public interest. Once you receive the waiver, it will apply to subsequent re-registrations, but not to other immigration benefits.

Some grounds, such as crimes involving moral turpitude and multiple criminal convictions (except purely political offenses), cannot be waived. If you are inadmissible and do not qualify for a waiver, you may not obtain TPS.

3. Are subject to the asylum bars

Although TPS is different from asylum, USCIS treats them the same way when it comes to the mandatory bars to asylum. So if you have firmly resettled in a third country, have persecuted others in your home country, engaged in or incited terrorist activity, pose a national security threat, or have been convicted of certain serious crimes, you are not eligible for TPS.

WHEN TO APPLY FOR TPS

You must file for TPS during the open initial registration or re-registration period, or qualify for late initial filing during any extension of your country’s TPS designation.

On November 20, 2014, Liberia, Guinea, and Sierra Leone were designated for TPS for 18 months from November 21, due to the outbreak of Ebola virus disease in West Africa. The 180-day registration period began on November 21, 2014 and runs through May 20, 2015.

On January 5, 2015, the designation of Syria for TPS  was extended from April 1, 2015 through September 30, 2016, due to ongoing conflict. The re-registration period for applicants who already have TPS began on January 5, 2015, and runs through March 6, 2015. Syria was also re-designated for TPS and the 180-day initial registration period for new applicants began on January 5, 2015, and runs through July 6, 2015.

The suspension of certain restrictions for on-campus and off-campus employment for F-1 nonimmigrant students from Syria was also extended, effective through September 30, 2016.

On January 7, 2015, the designation of El Salvador for TPS was extended for an additional 18 months, from March 10, 2015, through September 9, 2016, due to a series of earthquakes in 2001. The re-registration period for applicants who already have TPS began on January 7, 2015, and runs through March 9, 2015.

If you do not submit your TPS application within the specified period , you must qualify for a late re-registration or late initial filing for USCIS to accept it.

You must file with USCIS a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization (regardless of whether you want a work card). If you are inadmissible due to criminal convictions, immigration violations, or other grounds, but qualify for a waiver, you must file your Form I-601, Application for Waiver of Grounds of Inadmissibility, with your TPS application.

For more information on the application process, go to the TPS page on the USCIS website.

WHAT TPS PROVIDES (AND DOES NOT PROVIDE)

What TPS provides

TPS permits you to live and work in the U.S. and travel in and out of the U.S. for the duration of the TPS designation without fear of being placed into removal proceedings. TPS may be granted to foreign nationals who are present in the U.S. on non-immigrant visas that will expire; those who initially entered the U.S. with a non-immigrant visa and then overstayed their authorized period; and those who entered without authorization.

As long as they remain eligible, TPS holders will not be removed from the U.S. and may apply for an Employment Authorization Document (EAD) to work anywhere in the country.

What TPS does NOT provide

TPS provides only temporary protection from removal. The authorization to live and work in the U.S. is also temporary.

The length of the TPS is typically between six and 18 months (although it can be extended). A country’s TPS designation can end once it recovers from the triggering event. Once the TPS designation ends, TPS holders may be removed from the U.S. (unless they qualify for another form of status or relief).

TPS does not allow individuals living in the designated countries to come to the U.S. You must already be in the U.S. – whether lawfully or unlawfully – for the specified period.

TPS is also not a grant of lawful permanent resident status and does not make you eligible for a green card or for U.S. citizenship.

(NOTE: TPS, however, gives you more time to remain lawfully in the U.S., which could lead to your qualifying for a green card in some other way, such as marriage to a U.S. citizen, sponsorship by a U.S. employer, or an asylum grant.)

Consult an Immigration Attorney 

There are strict eligibility requirements and filing deadlines for TPS. If your application is denied, it is tough to get the decision overturned on appeal.

You should consult an experienced immigration attorney to confirm whether you qualify for TPS and to get help with the application process.

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

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5 Tips to Avoid Ethical Pitfalls in Flat Fee Agreements

Posted on December 27, 2014 | Comments Off on 5 Tips to Avoid Ethical Pitfalls in Flat Fee Agreements

Flat fees are a welcome alternative to hourly billing.

This arrangement means the attorney charges a fixed fee for the agreed-upon legal service. The client knows exactly what he will pay for the service and usually begins making payments at the outset of representation.

In my immigration practice — although I can offer an hourly rate to clients — I normally quote a flat fee. No client ever asks to be billed by the hour instead. Most prefer to know the exact value/cost of the agreed-upon legal service, rather than be billed for the lawyer’s time (usually in six, ten or fifteen-minute increments).

While flat fees offer several advantages, they also present ethical pitfalls, particularly when the attorney-client relationship ends before all the work is completed.

Flat Fees Are Subject to a Partial Refund if the Work is Not Fully Performed and to a Full Refund if the Work is Not Performed At All

Minnesota Lawyer recently published an article by Patrick Burns, First Assistant Director of the Minnesota Office of Lawyers Professional Responsibility, titled Ethics: Refunds of Unearned Flat Fees (reprinted here).

In the article, Burns states that there have been complaints filed with the Office of Lawyers Professional Responsibility where the lawyer and client entered into a flat fee agreement, but the agreed-upon service was not fully provided. In some instances, the lawyer claimed no refund was due because the total fee had been earned even though the services were not fully provided. The lawyer argued that he spent enough time on the matter such that the flat fee (when analyzed on an hourly fee basis) was fully earned.

Burns points out, “The flat fee agreement fixes a value for specific legal services to be rendered. If those services are not fully rendered, a refund is due to the client no matter how many hours the lawyer has spent on the matter.”

Amendments to Rule 1.5 Marked the End of Non-Refundable Fees

Previously, Minnesota lawyers could charge non-refundable retainer fees. It was quite common for criminal defense or estate planning attorneys to use non-refundable retainer agreements.

Prior language under Rule 1.5 of the Minnesota Rules of Professional Conduct allowed for non-refundable advance payments of availability (retainer) fees. There was no requirement that the non-refundable retainer be held in a trust account. If clients terminated the representation, they normally forfeited the retainer fee and did not get a refund.

But the amended Rule 1.5, which went into effect on July 1, 2011, prohibits non-refundable fees. The current rule states that while advance payments of flat fees and availability (retainer) fees, if agreed upon in writing, are the lawyer’s property, they are subject to refund.

As part of the amendments, the Minnesota Supreme Court deleted from Rule 1.5(b), the following sentence, “All agreements for the advance payment of nonrefundable fees to secure a lawyer’s availability for a specific period of time or a specific service shall be reasonable in amount and clearly communicated in a writing signed by the client.”

The Court added to Rule 1.5 (b) the following:

Except as provided below, fee payments received by a lawyer before legal services have been rendered are presumed to be unearned and shall be held in a trust account pursuant to Rule 1.15.

 (1) A lawyer may charge a flat fee for specified legal services, which constitutes complete payment for those services and may be paid in whole or in part in advance of the lawyer providing the services. If agreed to in advance in a written fee agreement signed by the client, a flat fee shall be considered to be the lawyer’s property upon payment of the fee, subject to refund as described in Rule 1.5(b)(3). Such a written fee agreement shall notify the client:

(i) of the nature and scope of the services to be provided;

(ii) of the total amount of the fee and the terms of payment;

(iii) that the fee will not be held in a trust account until earned;

(iv) that the client has the right to terminate the client-lawyer relationship; and

(v) that the client will be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided.

(2) A lawyer may charge a fee to ensure the lawyer’s availability to the client during a specified period or on a specified matter in addition to and apart from any compensation for legal services performed. Such an availability fee shall be reasonable in amount and communicated in a writing signed by the client. The writing shall clearly state that the fee is for availability only and that fees for legal services will be charged
separately. An availability fee may be considered to be the lawyer’s property upon payment of the fee, subject to refund in whole or in part should the lawyer not be
available as promised.

(3) Fee agreements may not describe any fee as nonrefundable or earned upon receipt but may describe the advance fee payment as the lawyer’s property subject to refund. Whenever a client has paid a flat fee . . . and the lawyer-client relationship is terminated before the fee is fully earned, the lawyer shall refund to the client the unearned portion of the fee. If a client disputes the amount of the fee that has been earned, the lawyer shall take reasonable and prompt action to resolve the dispute.

Although flat fees and retainer fees do not have to be placed in a trust account until they are earned, they are still subject to refund. Flat fees are subject to a partial refund if the work is not fully performed. They are also subject to a full refund if the work is not performed at all. Retainer fees are subject to refund if the attorney is not available as promised. Such fee agreements also must be communicated in writing to the client.

The amended Rule 1.5 presents ethical pitfalls for Minnesota attorneys, particularly when the client makes advance payments of flat fees and the agreed-upon service is not fully provided or not provided at all.

Here are five tips to avoid ethical pitfalls in flat fee agreements for specified legal services: 

1. Choose the clients you love and love the clients you have

Good client relations and effective, regular communication between the attorney and client reduce the likelihood of a breakdown in the relationship and an early termination of representation. When agreed-upon legal service is not fully performed, it’s usually because the client fires the attorney or the attorney withdraws from the case.

To minimize breakdowns in the relationship or to avoid fee disputes, you want to have good clients who appreciate the value you bring.

If the client had many prior attorneys before he met with you, this could be a red flag. Look out for warning signs of a bad client.  Then once you accept a case, work on it diligently, provide excellent service, and give ongoing status updates to the client.

2. Break down the representation into stages or segments

Flat fees are most appropriate in relatively simple or routine matters, such as writing a basic will, overseeing a real estate closing, or preparing an uncontested divorce petition. They also work well in complex cases where the representation can be broken into segments and stages.  A separate fee can be charged for each segment or stage individually.

If the attorney carefully outlines, in the fee agreement, what is and isn’t covered in each segment or stage of the representation, it’s easier to determine what work is already done versus work yet to be done.

For example, a U.S citizen client may hire an immigration attorney for full representation in obtaining an immigrant visa for his foreign national spouse who lives overseas. The process starts with filing an I-130 immigrant petition, proceeds to the filing of the immigrant visa application, and ends with the immigrant visa interview, after which time the U.S. Consulate grants or denies the immigrant visa.

Instead of having one fee agreement that lumps in and does not distinguish the different stages, the attorney and client may have one fee agreement that clearly delineates each stage and the related fee, or have separate fee agreements for each stage and the related fee.

3. Have a written fee agreement that includes the required language

If  the advance fee payment is to be considered the lawyer’s property, subject to refund, the client must consent to this in a written fee agreement.

A written fee agreement that calls for advance payment of flat fees must also include the required language set forth in Rule 1.5(b).

The agreement must notify the client that he will be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided. It also cannot include any language describing an advance payment as non-refundable or earned upon receipt.

4. Don’t spend it all

Minnesota lawyers may accept full or partial payment of a flat fee in advance of performing the specified legal services. They may deposit the payment in an operating account instead of in a trust account, if they consider the payment their property (assuming the agreement is in writing).

But they have no right to a non-refundable flat fee. If they do not fully perform the agreed-upon services, they must refund the “unearned” portion of the fee upon termination of representation.

The safest thing to do is to wait until the work is done and then charge the fee, but this leads to cash flow problems and makes it practically impossible to pay bills and keep the law firm running.

Advance payments are necessary for most lawyers. But because flat fees cannot be non-refundable under Rule 1.5, it’s important to put money aside in the event of a fee dispute.

Although the ethics rule doesn’t require you to deposit advance payments in the trust account until earned, you still have the option to do so. Otherwise, keep a nominal amount of funds in the operating account for those rare occasions where you might need to give money back.

5. Keep a time record

One reason why lawyers prefer flat-fee arrangements is that you don’t have to present timekeeping records with your bills. Is there any lawyer out there who enjoys the painstaking chore of entering time?

But because unearned fees are subject to refund, lawyers need to maintain some type of time record for each case, even if it involves a flat fee arrangement. (At the very least, time keeping helps you determine whether you are working efficiently on a case and gives you a more realistic perspective on how much to charge for the next, similar case.)

If the agreed-upon work is not fully performed, the hourly metrics help to show how much of the fee the attorney has earned. Rule 1.5(a) states that a lawyer must charge reasonable fees, and the time and labor required to do the work are primary factors.

While you don’t have to track your time down to every minute in flat fee arrangements, as you would in hourly billing, you want to keep some type of time record. This backup documentation will help you resolve fee disputes and decide how much to refund to the client.

Although the time spent is not “an exclusive factor,” it “may be considered” in determining the value of the services that the lawyer completed, as Burns states in the Minnesota Lawyer article.

To a great extent, your knowing that advance payment is always subject to refund makes you a much more diligent attorney. You will do the work and communicate well with your client if you know you have to give money back if you don’t.

* * *

Apply these five tips to avoid ethical pitfalls in flat fee arrangements, particularly when you accept partial payment or full payment before you complete all the work.

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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What to expect after your marriage-based green card interview

Posted on December 24, 2014 | Comments Off on What to expect after your marriage-based green card interview

A marriage-based green card interview before USCIS is required when a foreign national files a Form I-485 (green card) application based on a U.S. citizen (or permanent resident) spouse’s I-130 immigrant petition for him or her.  A fiancé(e) who enters the U.S. on a K-1 visa, marries the U.S. citizen petitioner, and then files an Form I-485 may also be scheduled for an interview.

What is the best possible outcome of a marriage-based immigration interview? 

If, at the end of the interview, the officer determines your marriage is bona fide, the I-130 petition can be approved on the spot. The I-485 will be approved as well if the foreign national qualifies for adjustment of status, the background check has cleared, and the marriage is found to be bona fide.

You will receive approval notices in the mail, after which the green card is issued in about three weeks.

What delays may occur following a marriage-based immigration interview? 

Case put on hold due to delays in name check and FBI clearance

Sometimes the FBI and other outside agencies are unable to complete all the background checks on the foreign national before the interview date. The USCIS officer may still approve the I-130 petition, but not the green card application until all the background checks are clear. You may schedule an InfoPass appointment to check on the progress in your case.

Case put on hold because officer is undecided or has other priorities

Sometimes the officer is undecided on whether to approve or deny the case.  For example, the officer is convinced that the parties share a bona fide marriage, but questions whether the foreign national is eligible for adjustment of status. A false claim to U.S. citizenship to gain employment or a serious criminal conviction are two common reasons why an adjustment application can be held up, even if the officer intends to approve the I-130 petition.

The interviewing officer may forward the case to a supervisor for further review and guidance. The sheer volume of petitions and applications being processed at the USCIS field office can add to the delay.

Several months might pass before the officer finally approves the case. In some instances, the officer may approve the petition, but deny the I-485 adjustment application. If the foreign national is placed in removal proceedings, the adjustment application and other forms of relief can be reviewed by an Immigration Judge.

Case put on hold because more evidence is needed or negative information is in the file

When more information is needed to issue a decision in your case, the officer has several options.

Request for Evidence

The officer may issue a Request for Evidence (RFE) specifying the additional documents you must submit.  You  will have a set time frame in which to submit the evidence (usually 12 weeks).  Although an RFE does not mean USCIS intends to deny the case,  your failure to file a timely response could lead to a denial.

Site Investigation

If the officer suspects the marriage is a sham, USCIS may conduct further investigation. This includes USCIS investigating officers showing up at the parties’ claimed residence to verify if they live together as a married couple. The “bed check” or “site visit” can occur at any time after the interview — sometimes as long as one to two years later — while the case is pending.

The site visit is unscheduled and typically occurs very early in the morning.  The USCIS officers will knock on your door or ring your doorbell and ask to enter your home so they can see firsthand where you live.  They may look inside your closets, check out your bathrooms and bedrooms, ask about family photos on your walls, etc. to get a sense of whether you really live together as a married couple. They may also ask you questions at the site visit, which you must treat like a formal interview.

While you may refuse to admit the officers into your home, this could raise more suspicion and trigger other types of investigation. If no authorized person is around to admit the officers inside the home, they can keep coming back or take a look around outside the home. In any event, it’s better to have at least one party and preferably both parties, in the marriage, at home when the officer conducts the site visit.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence.

USCIS does not, as a matter of practice, stake out your home for days. Once they have an opportunity to enter and see where you live, this is usually the end of the site visit. Sometimes they do not come back after the first attempt. Although this can be a daunting experience, go about your life as you normally would.

Source Checks

USCIS also often checks Department of Motor Vehicle (DMV) records, court records, social media, and other miscellaneous sources to  see if there is any adverse information, such as the parties claiming different residences or failing to hold themselves out as a married couple.

In some cases, USCIS may contact your place of employment or school to verify certain information, such as your emergency contacts, marital status and current residence listed. The employer or school, however, does not have to give this information to USCIS, especially if they have privacy policies and rules to follow.

Follow-Up Interview

USCIS may also schedule you for another interview, which could occur as much as 6+ months after the first interview. The follow-up interview is usually to test whether you’re still living together and to question each of you separately. A new interview may also follow after USCIS has conducted a site visit to your home or completed other types of investigation.

When you are asked the same questions individually, the officer will compare your answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did your spouse wear to bed last night?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

Notice of Intent to Deny

In extreme cases, USCIS may issue a Notice of Intent to Deny (NOID) petition because there is evidence of a sham marriage, i.e. a marriage that is entered into solely for or primarily for immigration benefits.

In addition, USCIS may issue a NOID when the foreign national was the beneficiary of a prior spousal immigrant petition that was denied or found to be fraudulent. This is because section 204(c) of the Immigration & Nationality Act bars the approval of any subsequent petition for a beneficiary who is found to have previously entered into a sham marriage for immigration benefits.

Seek Immigration Counsel

If USCIS issues a Notice of Intent to Deny (NOID) the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

You are better off having an attorney present at the interview. And the best time to consult an attorney is before you file the marriage-based adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when irreparable mistakes might have already occurred.

For more information, read our related article, What to expect at your marriage-based green card interview.

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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What to expect at your marriage-based green card interview

Posted on December 24, 2014 | Comments Off on What to expect at your marriage-based green card interview

Before USCIS approves a marriage-based green card application, it will normally interview the couple to determine whether their marriage is real or fake.

Marrying a U.S. citizen doesn’t automatically lead to a green card for the foreign national spouse. The U.S. citizen must prove that the marriage is bona fide (i.e. entered into with the intent of establishing a married life together), and is not a sham (i.e. entered into just to gain immigration benefits). The green card applicant also needs to be admissible to the U.S. or otherwise qualify for a waiver of inadmissibility.

To start the process, the U.S. citizen first files a Form I-130 immigrant petition for the spouse. If the couple is not yet married, the U.S. citizen may file a Form I-129F petition to bring a fiancé(e) to the U.S. on a K-1 visa.

A spouse who is already in the U.S. and qualifies for adjustment to permanent residence may file the Form I-485 (green card) application at the same time the I-130 is filed. This is known as concurrent filing or “one-step adjustment of status.” A fiancé(e) who enters the U.S. on a K-1 visa must marry the U.S. citizen within 90 days of arrival and then file for adjustment.

After filing a marriage-based green card application, the petitioner and foreign national will receive an interview notice to appear at the local USCIS field office at a scheduled date and time. The notice is normally issued two to eight weeks prior to the interview. USCIS may waive an I-485 interview for K-1 entrants, but the documentation must be strong enough to get an approval without an interview.

USCIS will approve the I-130 only after it determines that they truly share a married life together.  In addition to providing documentation of a shared married life (e.g., joint mortgage, joint bills, joint tax returns, birth certificates of children, family photographs), the couple must also give credible testimony confirming their marriage is bona fide.

USCIS will also verify whether the I-485 applicant has any criminal history, immigration fraud or misrepresentation, public charge or other inadmissibility issues that prevent adjustment.

Knowing what to expect at the USCIS interview is crucial to obtaining an I-130 and I-485 approval and avoiding further investigation, delays in the case, or a denial notice.

What are the basic steps to follow at a marriage-based immigration interview? 

1) You arrive at the USCIS building and present your interview notice to the security guard. Before you can proceed to the waiting room, you go through a metal detector and your personal belongings go through screening. Each USCIS field office has its own protocol, but cameras (including cell phones with cameras) and recording devices are normally prohibited.

(NOTE: Arrive at least 15 minutes early, but no more than 45 minutes in advance of the appointment. If you arrive too early, you may be turned away and asked to come back closer to your appointment time.)

2) You proceed to the waiting area and hand in your interview notice at the window. You then wait for your name to be called by the USCIS adjudications officer assigned to review your case. Although the interview usually starts on time, be prepared to wait for a more extended period.

3) The USCIS officer will normally bring both of you to his or her desk to be interviewed together (instead of question you separately).

4) You will be asked to remain standing while you take oaths to tell the truth. You will need to verify your identity by presenting your driver’s license or other form of ID.

5) The officer will typically review your marriage certificate, divorce decrees (if you had any prior marriages), and passport. Bring the originals with you in case the officer wants to see them.

6)  The officer will go through the application forms to verify basic information such as your address, telephone numbers, and dates of birth.

7) The officer will next ask questions about your relationship and your married life together, such as when and how you met; when and why you decided to get married; who proposed and how was the proposal made; how many people attended your wedding; and when you moved in together.

8)  You also have the opportunity to present additional evidence of your married life, especially if you had few documents to present at the time of filing the petition and adjustment application.

A joint interview is the best kind. If you have a bona fide marriage, you get an opportunity to show the USCIS officer firsthand how you interact with each other. You also worry less because you get to hear your spouse’s answers to the officer’s questions. Either one of you may also answer the question unless it deals specifically with the other spouse or is posed directly to him or her.

Joint interviews run more smoothly and take less time. When you are interviewed together, it generally means the officer has fewer concerns about the marriage.

Be as natural as you can be, regardless of how nervous you are. Don’t pretend to be the couple you’re not.

Avoid exaggerations and misrepresentations. Lying to a USCIS officer – especially about material facts – to obtain a green card will get you in trouble. If caught, you may be subject to a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). (If you have concerns about your case and feel tempted to lie about certain issues, consult an attorney before you go to the interview.)

What  problems can occur at a marriage-based immigration interview? 

Lack of documentation, the couple’s demeanor, discrepancies in the testimonies, faulty translations by an interpreter, the filing of prior spousal immigrant petitions for the same beneficiary, and other factors may cause the officer to have doubts about the marriage.

The officer may separate the couple on the day of the interview and question each party individually. Each person will be asked the same questions separately. Then the officer will compare the answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did your spouse wear to bed last night?
  • what did you and your spouse have for dinner last night?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?
  • how did you get to the interview today?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

To learn more about other potential problems, read What to expect after your marriage-based green card interview.

Seek Immigration Counsel

Getting an I-130 approval notice and I-485 welcome notice is the best outcome possible. Short of that, your case could be put on hold for various reasons. But perhaps the worst thing to get is a Notice of Intent to Deny (NOID).

If USCIS issues a Notice of Intent to Deny the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

Working with a reputable attorney from start to finish will help reduce problems and get your case approved. It’s best to consult an attorney before you file the marriage-based adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when mistakes cannot be undone.

For more information, read our related article, What to expect after your marriage-based green card interview.

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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